THE SECURITY INTERESTS GRANTED HEREBY ARE SUBJECT AND SUBORDINATE TO THE SENIOR
SECURITY INTERESTS IN THE SAME COLLATERAL GRANTED TO PNC BANK NA PURSUANT TO
THAT CERTAIN REVOLVING CREDIT AND SECURITY AGREEMENT DATED AS OF APRIL 28, 2000
BY AND BETWEEN ROBOTIC VISION SYSTEMS, INC. AND PNC BANK NA AS LENDER AND AGENT,
AS IT MAY BE AMENDED FROM TIME TO TIME.
SECURITY AGREEMENT
SECURITY AGREEMENT dated as of December 4, 2002 by and between Robotic
Vision Systems, Inc., a Delaware corporation having its principal place of
business at 0 Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Borrower") in
favor of Xxx X. Xxxxx ("Lender").
R E C I T A L S:
The Borrower has executed and delivered to the Lender that certain 9%
Convertible Senior Note due December 4, 2005, in the original principal amount
of $500,000.00, made payable by the Borrower to the Lender (as amended or
otherwise modified from time to time, the "Note"); and
The Lender has required as a condition to making the aforementioned loan
to the Borrower and in order to secure the prompt and complete payment,
observance and performance of all of the Borrower's obligations and liabilities
under this Agreement and under the Note (all such obligations and liabilities
hereinafter collectively referred to as the "Obligations") that the Borrower
execute and deliver this Agreement to the Lender.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
SECTION 1. Definitions.
(a) Capitalized terms used herein without definition shall have
the meanings given such terms in the Note.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import, when used in this Agreement, shall refer to this Agreement as a
whole and not to any particular provision of this Agreement and section
references are to this Agreement unless otherwise specified.
(c) When used herein, (i) unless otherwise defined, the terms
Account, Account Debtor, Certificated Security, Chattel Paper, Commercial Tort
Claim, Deposit Account, Document, Electronic Chattel Paper, Equipment, Financial
Asset, Fixtures, General Intangibles, Goods, Instrument, Inventory, Investment
Property, Letter-of-Credit Rights, Non-Cash Proceeds, Payment Intangibles,
Proceeds, Security, Security Entitlement, Software, Supporting Obligations and
Uncertificated Security have the respective meanings assigned thereto in the UCC
(as defined below); and (ii) the following terms have the following meanings
(such definitions to be applicable to both the singular and plural forms of such
terms):
Bank Indebtedness means, whether outstanding on the date hereof or
thereafter incurred, loans to the Borrower made by a Commercial Bank, under a
credit facility, loan agreement or similar agreement, including the Revolving
Credit and Security Agreement.
Commercial Bank means any bank, trust company or other institutions
principally engaged in the business of lending money to businesses.
Computer Hardware and Software means all of the Borrower's rights
(including rights as licensee and lessee) with respect to (i) computer and other
electronic data processing hardware, including all integrated computer systems,
central processing units, memory units, display terminals, printers, computer
elements, card readers, tape drives, hard and soft disk drives, cables,
electrical supply hardware, generators, power equalizers, accessories,
peripheral devices and other related computer hardware; (ii) all software
programs designed for use on the computers and electronic data processing
hardware described in clause (i) above, including all operating system software,
utilities and application programs in whatsoever form (source code and object
code in magnetic tape, disk or hard copy format or any other listings
whatsoever); (iii) any firmware associated with any of the foregoing; (iv) any
documentation for hardware, software and firmware described in clauses (i), (ii)
and (iii) above, including flow charts, logic diagrams, manuals, specifications,
training materials, charts and pseudo codes; and (v) all rights with respect to
all of the foregoing, including, any and all licenses, options, warranties,
service contracts, program services, test rights, maintenance rights, support
rights, improvement rights, renewal rights and indemnifications, and any
substitutions, replacements, additions or model conversions of any of the
foregoing.
Intellectual Property means all of Borrower's past, present and future:
trade secrets and other proprietary information; trademarks, service marks,
business names, Internet domain names, designs, logos, trade dress, slogans,
indicia and other source and/or business identifiers, and the goodwill of the
business relating thereto and all registrations or applications for
registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs and
software) and copyright registrations or applications for registrations which
have heretofore been or may hereafter be issued throughout the world and all
tangible property embodying the copyrights; unpatented inventions (whether or
not patentable); patent applications and patents; industrial designs, industrial
design applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; books, records, writings,
computer tapes or disks, flow diagrams, specification sheets, source codes,
object codes and other physical manifestations, embodiments or incorporations of
any of the foregoing; the right to xxx for all past, present and future
infringements of any of the foregoing; and all common law and other rights
throughout the world in and to all of the foregoing.
Liens mean all mortgages, liens, pledges, security interests, charges,
claims, restrictions and encumbrances of any nature whatsoever.
Permitted Liens means any (i) Liens for current taxes not yet due and
payable or being contested in good faith through appropriate proceedings, Liens
to lenders incurred on deposits made in the ordinary course of business in
connection with maintaining bank accounts, Liens in the ordinary course of
business in connection with workers' compensation, unemployment
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insurance, social security and other types of laws, or to secure the performance
of tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, government permits, licenses and approvals, performance
and return-of-money bonds and other similar obligations arising in the ordinary
course of Borrower's business, (ii) Liens on any escrow account securing any
obligations of the Borrower, (iii) materialmen's, warehousemen's and mechanics'
Liens and other Liens arising by operation of law in the ordinary course of
business for sums not yet due and (iv) Liens incurred by the Borrower under and
with respect to the Revolving Credit and Security Agreement.
Revolving Credit and Security Agreement means that certain Revolving
Credit and Security Agreement dated as of April 28, 2000 by and between the
Borrower and PNC Bank NA as Lender and Agent, as amended to date or as it may be
amended from time to time.
UCC means the Uniform Commercial Code as in effect in the State of
Delaware on the date of this Agreement, as may be amended or modified from time
to time.
SECTION 2. Grant of Security Interest. In order to secure the prompt,
complete payment and performance of the Obligations, the Borrower hereby grants
to the Lender, a security interest in all right, title and interest of the
Borrower in, to and under the following, whether now owned or existing or
hereafter arising or acquired and wheresoever located (collectively, the
"Collateral"):
All of the Borrower's: (i) Accounts; (ii) Certificated Securities; (iii)
Chattel Paper, including Electronic Chattel Paper; (iv) Computer Hardware and
Software; (v) Commercial Tort Claims; (vi) Deposit Accounts; (vii) Documents;
(viii) Equipment; (ix) Financial Assets; (x) Fixtures; (xi) General Intangibles;
(xii) Goods; (xiii) Inventory; (xiv) Instruments; (xv) Intellectual Property;
(xvi) Investment Property; (xvii) Letter-of-Credit Rights; (xviii) Non-Cash
Proceeds; (xix) money (of every jurisdiction whatsoever); (xx) Proceeds; (xxi)
Securities; (xxii) Security Entitlements; (xxiii) Software; (xxiv) Supporting
Obligations; (xxv) Uncertificated Securities; and (xvi) to the extent not
included in the foregoing, other personal property of any kind or description,
together with all books, records, writings, data bases, information and other
property relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and all Proceeds,
products, offspring, rents, issues, profits and returns of and from any of the
foregoing.
SECTION 3. Representations and Warranties. The Borrower represents and
warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware.
(b) The execution and delivery of this Agreement and the
performance by the Borrower of its obligations hereunder are within the
Borrower's corporate powers, have been duly authorized by all necessary
corporate action and do not and will not contravene or conflict with any
provision of law or of the certificate of incorporation or by-laws of the
Borrower or, except with respect to covenants under the Revolving Credit and
Security Agreement, of any
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material agreement, indenture, instrument or other document, or any material
judgment, order or decree, which is binding upon the Borrower.
(c) The principal place of business and chief executive office of
the Borrower are located at the address first specified above for the Borrower
and all records concerning the Accounts and all originals of all chattel paper
which evidence Accounts are located at such address. None of the Accounts is
evidenced by a promissory note or other instrument, except such promissory notes
or other instruments as have been delivered to the Lender hereunder as of the
date hereof.
(d) All information with respect to the Collateral set forth in
any schedule, certificate or other writing at any time heretofore or hereafter
furnished by the Borrower to the Lender is and will be true and correct in all
material respects as of the date furnished.
(e) The Borrower has good, indefeasible and merchantable title to
all of its property. The Borrower owns all of its property free and clear of any
Lien except for Permitted Liens and the security interests in favor of the
Lender as created by this Agreement. No effective financing statement or other
instrument similar in effect covering all or any part of the Collateral is on
file in any recording office, except as may have been filed in respect of
Permitted Liens or in favor of the Lender relating to this Agreement.
(f) This Agreement creates a valid security interest in the
Collateral, securing the payment of the Obligations upon filing of the financing
statement substantially in the form attached hereto as Exhibit A and upon filing
of a Grant of Security Interest (Trademarks) substantially in the form attached
hereto as Exhibit B and a Grant of Security Interest (Patents) substantially in
the form attached hereto as Exhibit C.
(g) The correct corporate name of the Borrower is Robotic Vision
Systems, Inc. and the Borrower has no other corporate name or fictitious name
and has not, during the immediately preceding five (5) years, been known as or
used any other corporate or fictitious name. The Borrower will not change its
name, identity or structure in any manner which might make any financing
statement filed hereunder seriously misleading, unless the Borrower shall have
given the Lender at least thirty (30) days' prior written notice thereof.
(h) No authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required
either (i) for the grant by the Borrower of the security interest granted hereby
or for the execution, delivery or performance of this Agreement by the Borrower
or (ii) for the perfection of or the exercise by the Lender of the Lender's
rights and remedies hereunder.
(i) This Agreement is the legal, valid and binding obligation of
the Borrower, enforceable in accordance with its terms, except that the
enforceability of this Agreement may be limited by bankruptcy, insolvency,
fraudulent conveyance, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
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SECTION 4. Further Assurances. (a) The Borrower agrees that from time to
time, at the expense of the Borrower, the Borrower will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Lender may reasonably request, in
order to perfect, protect or otherwise evidence any security interest granted or
purported to be granted hereby or to enable the Lender to exercise and enforce
its rights and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Borrower will execute and file
such financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Lender may
request, in order to perfect, preserve or otherwise evidence the security
interests granted or purported to be granted hereby.
(b) The Borrower hereby authorizes the Lender to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of the Borrower where permitted
by law.
(c) The Borrower will furnish to the Lender from time to time
statements and schedules further identifying and describing the Collateral and
such other reports in connection with the Collateral as the Lender may
reasonably request, all in reasonable detail, and Borrower will, upon two (2)
Business Days' prior notice, permit the Lender, by any of its officers,
employees and/or designated agents, at any time or times during Borrower's usual
business hours, to inspect and/or conduct audits with respect to the Collateral.
SECTION 5. Keeping of Records and Books of Account. The Borrower shall
maintain and implement administrative and operating procedures (including,
without limitation, an ability to recreate records evidencing the Accounts in
the event of the destruction of the originals thereof) and keep and maintain all
documents, books, records and other information reasonably necessary and
consistent with reasonable business practices for the collection of all
Accounts.
SECTION 6. Transfers and Other Liens; Release of Liens.
(a) The Borrower shall not, unless the Lender shall have provided
its prior written consent thereto: (i) sell, assign (by operation of law or
otherwise) or otherwise dispose of any of the Collateral except (x) in the
ordinary course of business or (y) any sale, assignment or disposition of
Collateral resulting in gross proceeds to the Borrower not in excess of $50,000;
or (ii) create or suffer to exist any Lien upon or with respect to any of the
Collateral, except Permitted Liens.
(b) Upon any sale of the "Semiconductor Equipment Group" division
of the Borrower authorized by the Board of Directors of the Borrower, the Lender
agrees that he will release any and all Liens granted in his favor in respect of
any Collateral included in such sale.
SECTION 7. Lender Appointed Attorney-in-Fact. Upon the occurrence and
during the continuance of an Event of Default, the Borrower hereby irrevocably
appoints the Lender the Borrower's attorney-in-fact, with full authority in the
place and stead of the Borrower and in the name of the Borrower, from time to
time in the Lender's discretion, to take any action and to
- 5 -
execute any instrument which the Lender may deem reasonably necessary or
advisable to accomplish the purposes of this Agreement, including, without
limitation:
(a) to ask, demand, collect, xxx for, recover, compound, receive
and give acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause(a) above;
(c) to file any claims or take any action or institute any
proceedings which the Lender may deem necessary or desirable for the collection
of any of the Collateral or otherwise to enforce the rights of the Lender with
respect to any of the Collateral; and
(d) to discharge any Lien on or against the Collateral or bond the
same.
SECTION 8. Lender May Perform. If the Borrower fails to perform any
agreement contained herein, the Lender may itself perform, or cause performance
of, such agreement, and the expenses of the Lender incurred in connection
therewith shall be for the account of and payable by the Borrower under Section
12(b).
SECTION 9. The Lender's Duties. The powers conferred on the Lender
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in his possession and the accounting for moneys actually
received by him hereunder, the Lender shall have no duty as to any Collateral or
as to the taking of any necessary steps to preserve rights against prior parties
or any other rights pertaining to any Collateral.
SECTION 10. Subordination. If the Borrower shall incur any Bank
Indebtedness, the Lender agrees to enter into a commercially reasonable
subordination agreement with the Commercial Bank loaning such Bank Indebtedness,
which shall provide for the relative ranking of such Bank Indebtedness and the
Lender's security interests granted herein, upon terms to be agreed upon.
SECTION 11. Remedies. If an Event of Default shall have occurred and is
continuing:
(a) The Lender may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party upon default under the UCC
(whether or not the UCC applies to the affected Collateral) and also may (i)
without notice, demand or legal process of any kind (except as may be required
by law), all of which the Borrower hereby waives, at any time or times enter the
Borrower's premises and take physical possession of the Collateral and maintain
such possession on the Borrower's premises, at no cost to the Lender, or remove
the Collateral or any part thereof, to such other places as the Lender may
desire, (ii) require the Borrower to, and the Borrower hereby agrees that it
will at its expense and upon request of the Lender forthwith, assemble all or
any part of the Collateral as directed by the Lender and make it available to
the Lender at a place to be designated by the Lender which is reasonably
convenient to both parties and (iii) without notice, except as specified below,
sell, lease, assign, grant an option or options
- 6 -
to purchase or otherwise dispose of the Collateral or any part thereof in one or
more parcels at public or private sale, at any exchange, broker's board or at
any of the Lender's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Lender may deem commercially
reasonable. The Borrower agrees that, to the extent notice of sale shall be
required by law, seven (7) days' notice to the Borrower of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification. The Lender shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Lender may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. The Borrower agrees
that the Lender shall have no obligation to preserve rights in the Collateral
against prior parties or to xxxxxxxx any Collateral for the benefit of any
Person.
(b) Any cash held by the Lender as Collateral and all cash
proceeds received by the Lender in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral may, in the discretion
of the Lender, then or at any time shall be applied by the Lender to the
Obligations. Any surplus of such cash or cash proceeds held by the Lender and
remaining after payment in full of all the Obligations shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
SECTION 12. Indemnity and Expenses. (a) The Borrower agrees to indemnify
the Lender from and against any and all claims, losses and liabilities growing
out of or resulting from this Agreement (including, without limitation,
enforcement of this Agreement), except claims, losses or liabilities resulting
from the Lender's gross negligence or willful misconduct.
(b) The Borrower will upon demand pay to the Lender the amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, including, without limitation, any
affiliates of the Lender, which the Lender may incur in connection with (i) the
administration of this Agreement, (ii) the custody (and protection during any
period of custody) of, collection from, or other realization upon, any of the
Collateral or (iii) the exercise or enforcement of any of the rights of the
Lender hereunder, including, without limitation, any and all audits with respect
to the Collateral conducted by or on behalf of the Lender pursuant to Section
4(c) hereof.
SECTION 13. Amendments; Etc. No amendment or waiver of any provision of
this Agreement or consent to any departure by the Borrower herefrom shall in any
event be effective unless the same shall be in writing and signed by the Lender,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 14. Addresses for Notices; Consent. All notices and other
communications provided for hereunder shall be in writing and given in the
manner and to the address provided for each party in the Note.
SECTION 15. Continuing Security Interest. This Agreement shall create a
continuing security interest in the Collateral and shall (i) remain in full
force and effect until payment in full of the Obligations; (ii) be binding upon
the Borrower, its successors and assigns; and (iii) inure, together with the
rights and remedies of the Lender hereunder, to the benefit of the Lender and
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its successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), the Lender may assign or otherwise transfer all or any
portion of its rights under the Note to any other person or entity, and such
other person or entity shall thereupon become vested with all the benefits in
respect thereof granted to Lender as a beneficiary hereunder or otherwise. Upon
the payment in full of the Obligations, the security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the Borrower.
Upon any such termination, the Lender will, at the Borrower's expense, execute
and deliver to the Borrower such documents as the Borrower shall reasonably
request (including, without limitation those documents which are legally
necessary) to evidence such termination. The Borrower's successors and assigns
shall include, without limitation, a receiver, trustee or debtor-in-possession
thereof or therefor.
SECTION 16. Survival of Representations and Warranties. The Borrower
covenants, warrants and represents to the Lender that all representations and
warranties of the Borrower contained in this Agreement shall be true at the time
of the Borrower's execution of this Agreement, shall survive the execution,
delivery and acceptance hereof by the parties hereto and the closing of the
transactions described herein as related hereto and shall continue in effect
until all of the Obligations shall have been paid in full. The Borrower and the
Lender expressly agree that any misrepresentation or breach of any warranty
whatsoever contained in this Agreement shall be deemed material.
SECTION 17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (without giving
effect to any conflicts or choice of law provisions that would cause the
application of the domestic substantive laws of any other jurisdiction). With
respect to any suit, action or proceedings relating to this Agreement, the
parties hereto irrevocably submit to the non-exclusive jurisdiction of the
courts of the State of New York sitting in and for New York County, and the
United States District Court in the Southern District of New York, as well as to
the jurisdiction of all courts to which an appeal may be taken from such courts
and hereby waives, to the fullest extent permitted by applicable law, any and
all objections it may have to venue, including, without limitation, any claim
that any such suit, action or proceeding has been brought in an inconvenient
forum.
SECTION 18. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by its respective officers hereunto duly authorized
as of the date first above written.
ROBOTIC VISION SYSTEMS, INC.
By:
-----------------------------
Name:
Title:
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-----------------------------
XXX X. XXXXX
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EXHIBIT A
to
Security Agreement
dated as of
December 4, 2002
Form of Financing Statement Attached
- 10 -
EXHIBIT A
to
Financing Statement
Debtor: Robotic Vision Systems, Inc.
Secured Party: Xxx X. Xxxxx
Description of Collateral:
All of the Debtor's right, title and interest in and to the following,
whether now owned or existing or hereafter arising or acquired and wheresoever
located (unless otherwise defined, all of such terms have the respective
meanings assigned thereto in the Uniform Commercial Code as in effect in the
State of Delaware on the date of that certain Security Agreement dated as of
December 4, 2002 between Robotic Vision System, Inc. as Borrower, and Xxx X.
Xxxxx, as Lender, as the same may be amended or modified from time to time:
(i) Accounts;
(ii) Certificated Securities;
(iii) Chattel Paper, including Electronic Chattel Paper;
(iv) Computer Hardware and Software;
(v) Commercial Tort Claims;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Equipment;
(ix) Financial Assets;
(x) Fixtures;
(xi) General Intangibles;
(xii) Goods;
(xiii) Inventory;
(xiv) Instruments;
(xv) Intellectual Property;
(xvi) Investment Property;
(xvii) Letter-of-Credit Rights;
(xviii) Non-Cash Proceeds;
(xix) money (of every jurisdiction whatsoever);
(xx) Proceeds;
(xxi) Securities;
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(xxii) Security Entitlements;
(xxiii) Software;
(xxiv) Supporting Obligations;
(xxv) Uncertificated Securities; and
(xvi) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, data bases, information
and other property relating to, used or useful in connection with, or
evidencing, embodying, incorporating or referring to any of the foregoing, and
all Proceeds, products, offspring, rents, issues, profits and returns of and
from any of the foregoing.
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EXHIBIT B
to
Security Agreement
dated as of
December 4, 2002
Form of Grant of Security Interest (Trademarks) Attached
- 13 -
EXHIBIT C
to
Security Agreement
dated as of
December 4, 2002
Form of Grant of Security Interest (Patents) Attached
- 14 -
