Exhibit 10.1
AGREEMENT
This AGREEMENT (“
Agreement
”), dated as of April 21, 2015 (“
Effective Date
”), is entered into between the Pension Benefit Guaranty Corporation (“
PBGC
”), Evans & Sutherland Computer Corporation (“
E&S
”), and E&S’s wholly owned subsidiary, Spitz, Inc. (“
Spitz
”; E&S and Spitz collectively, the “
Obligors
”; and the Obligors, collectively with PBGC, the “
Parties
”).
Recitals
A. PBGC is a wholly owned United States government corporation and agency established under 29 U.S.C. § 1302(a) to administer the pension plan termination insurance program created by Title IV of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§ 1301-1461 (2012) (“
ERISA
”).
B. E&S is located in Salt Lake City, Utah and sponsored the Evans & Sutherland Computer Corporation Pension Plan (the “
Plan
”), which is a single-employer defined benefit pension plan covered by Title IV of ERISA.
C. PBGC has perfected statutory liens against all personal and real property of each Obligor under 26 U.S.C. § 430(k) and its predecessor statute on account of unpaid Plan contributions (the “
PBGC Liens
”).
D. The Evans & Sutherland Computer Corporation Pension Plan Administrative Committee (the “
Plan Administrator
”) filed a distress termination notice for the Plan with PBGC under 29 U.S.C. § 1341(c) on January 7, 2013.
E. By correspondence dated May 13, 2014, PBGC notified E&S that PBGC determined that the requirements for a distress termination were met.
F. On April 21, 2015, the Plan Administrator and PBGC entered into an agreement: (1) terminating the Plan under 29 U.S.C. § 1341(c); (2) establishing March 8, 2013, as the Plan’s termination date under 29 U.S.C. § 1348 (the “
DOPT
”); and (3) appointing PBGC as statutory trustee of the Plan under 29 U.S.C. § 1342(c)
G. The Obligors are jointly and severally liable to PBGC for various liabilities under ERISA in connection with the Plan (the “
ERISA Liabilities
”), specifically unfunded benefit liabilities, due and unpaid Plan contributions, premiums, and interest and any penalties (as may be applicable) with respect to the foregoing.
H. The Parties have reached an understanding to settle the ERISA Liabilities and all other liabilities relating to the Plan (except for those resulting from any violation of Part 4 of Subtitle B of Title 1 of ERISA (the “
Fiduciary Breach Provisions
”)) (the “
Settled ERISA Liabilities
”), and in conjunction therewith, are contemporaneously entering into intercreditor agreements with KeyBank National Association (the "KeyBank Intercreditor Agreement"),
E&S's secured lender, and with Bryn Mawr Trust Company (the “
BMT Intercreditor Agreement
”), Spitz's secured lender.
Accordingly the Obligors, jointly and severally, and PBGC agree as follows:
1.
Payments
. The Obligors shall pay $10.5 million to PBGC as provided in this
Section 1
. The Obligors shall make a first payment of $1.5 million within ten days after the Effective Date and thereafter make twelve equal annual payments of $750 thousand each to PBGC (each payment individually, an “
Installment
,” and collectively, the “
Installments
”). Prepayment is permitted without penalty. The Obligors shall pay the remaining twelve Installments as follows:
(a) $750 thousand on or before October 31, 2015.
(b) $750 thousand on or before October 31, 2016.
(c) $750 thousand on or before October 31, 2017.
(d) $750 thousand on or before October 31, 2018.
(e) $750 thousand on or before October 31, 2019.
(f) $750 thousand on or before October 31, 2020.
(g) $750 thousand on or before October 31, 2021.
(h) $750 thousand on or before October 31, 2022.
(i) $750 thousand on or before October 31, 2023.
(j) $750 thousand on or before October 31, 2024.
(k) $750 thousand on or before October 31, 2025.
(l) $750 thousand on or before October 31, 2026
2.
Equity
. Within ten days after the Effective Date, E&S shall issue 88,117 shares of E&S treasury stock (the “
Shares
”) in the name of PBGC.
3.
Security
. On the Effective Date and in order to secure the Obligors’ payment of the Installments and performance of all of their other obligations under the Settlement Documents (as defined below) (all such payment obligations and other obligations, collectively, the “
Obligations
”): (a) the Obligors shall enter into a security agreement with PBGC substantially in the form attached hereto as
Exhibit A
granting to PBGC a security interest on all of the Obligors’ presently owned and after-acquired personal property and proceeds thereof (the “
Personalty Collateral
”), free and clear of all liens and other encumbrances except those described therein (the “
Security Agreement
”); and (b) Spitz shall execute a mortgage in favor of PBGC substantially in the form attached hereto as
Exhibit B
(the “
Mortgage
”, and collectively with this Agreement and the Security Agreement, the “
Settlement Documents
”) on Spitz’s real property described therein (the
“
Realty Collateral
”, and collectively with the Personalty Collateral, the “
Collateral
”; all such liens on the Collateral, the “
PBGC Lien
”).
4.
Forbearance
. So long as no Event of Default (as defined below) occurs, PBGC shall forbear from taking any action to enforce the Settled ERISA Liabilities.
5.
Default
. Each of the following shall constitute an event of default (each, an “
Event of Default
”) under this Agreement:
a. The Obligors fail to timely pay any Installment and such failure continues for ten days.
b. E&S fails to timely issue the Shares to PBGC.
c. The Obligors fail to perform or observe any other term, covenant, condition, undertaking or provision contained in this Agreement and such failure, if capable of being cured, is not cured within 30 days after written notice thereof from PBGC.
d. Spitz incurs obligations to The Bryn Mawr Trust Company totaling more than $6,500,000 of principal.
e. A “Default” as defined in the Security Agreement, or an “Event of Default” as defined in any Mortgage(s), occurs.
f. Any representation or warranty by any Obligor herein or in any other Settlement Document is materially false or misleading when made.
g. An Obligor: (1) becomes insolvent; or (2) is unable, or admits in writing its inability, to pay debts as they generally mature; or (3) makes a general assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its property; or (4) makes or sends notice of a bulk transfer; or (5) files, or consents to the filing against it of a petition or other papers commencing a proceeding under Title 11 of the United States Code or any similar type of insolvency proceeding under domestic or international law (an “
Insolvency Proceeding
”); or (6) has an Insolvency Proceeding filed or instituted against it which has not been dismissed within 60 days after the commencement of the Insolvency Proceeding, or in which an order for relief has been entered against it; or (7) applies to a court for appointment of a receiver, trustee, or custodian for any of its assets; or (8) has a receiver, trustee, or custodian appointed for any of its assets (with or without its consent); or (9) dissolves, suspends, or discontinues doing business.
h. A default under any agreement, note or other evidence of indebtedness of any Obligor to any creditor that is secured by liens on any Collateral that are or are claimed to be senior to the PBGC Liens on such Collateral, where such default has continued for more than the original cure period, if any, with respect thereto, and such indebtedness is accelerated.
6.
Remedies; Tolling; Waivers of Suretyship Defenses
. Upon the occurrence of any Event of Default, PBGC may: (a) declare all Installments immediately due and payable; (b) proceed to enforce the PBGC Lien on any or all of the Collateral; (c) exercise its statutory rights to enforce and collect the Settled ERISA Liabilities (less any Installment payments made hereunder) under Title IV of ERISA (including perfecting and enforcing liens under 29 U.S.C. § 1368), or (d) exercise any and all other remedies available under the Settlement Documents, at law or in equity. Each and every period within which PBGC may commence a proceeding to collect any of the Settled ERISA Liabilities or liability resulting from any violation of the Fiduciary Breach Provisions or enforce any lien therefor, including each period under 29 U.S.C. §§ 1303, 1368, is tolled from and including the Effective Date to and including the Release Date (as defined below) (the “
Tolled Period
”). No Obligor may assert or rely on any statute of limitations under any federal or state law as a defense against any proceeding commenced by PBGC to collect any of the Settled ERISA Liabilities or to enforce any lien therefor or to collect any liability for violation of any Fiduciary Breach Provisions, so long as such proceeding is commenced before the expiration of the applicable limitations period as tolled by the Tolled Period. No Obligor may use the Tolled Period to assert or rely on the doctrines of waiver, laches or estoppel, or any other doctrine or defense constituting an avoidance of PBGC’s claims that is based on the time within such action was commenced by PBGC. No remedy described herein is intended to be exclusive of any other right, power or remedy, and any such remedy will, to the extent permitted by law, be cumulative and in addition to every other right, power and remedy given hereunder, now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right, power or remedy hereunder, or otherwise, will not prevent the concurrent or subsequent assertion or exercise of any other appropriate right, power or remedy. No delay or omission of PBGC to exercise any right, power or remedy will impair any such right, power or remedy or constitute a waiver of any such right, power or remedy or an acquiescence in or waiver of any Event of Default. Each right, power and remedy given by any Settlement Document or by law or equity to PBGC may be exercised from time to time, and as often as may be deemed expedient, by PBGC. Each Obligor waives any and all defenses based on suretyship or impairment of collateral including, without limitation, all defenses described in Sections 37 through 45 of the Restatement (Third) of the Law of Suretyship and Guaranty, with respect to its obligations under any Settlement Document. The Parties intend the preceding waiver to have the effects described in Section 48(1) of the Restatement (Third) of the Law of Suretyship and Guaranty. The provisions of this Section are continuing and will survive the termination of this Agreement.
7.
Release
.
a. As soon as reasonably practicable after the 91
st
day after the perfection of all consensual liens granted to PBGC by all grantors in connection with the Agreement, if no bankruptcy petition has been filed by or against any grantor thereof prior to such 91
st
day, or, if a bankruptcy petition has been filed against any grantor prior to such 91
st
day and is contested by such grantor, as soon as reasonably practicable on or after the later of such 91
st
day and the date on which such bankruptcy petition is dismissed,
PBGC shall withdraw all lien notices with respect to the statutory liens it perfected on behalf of the Plan under 26 U.S.C. § 430(k) or its predecessor statute with respect to all real and personal property of such grantors.
b. On the 91
st
day after the full payment of all Installments, if no bankruptcy petition has been filed by or against either Obligor before such 91
st
day (or, if a bankruptcy petition has been filed against such Obligor prior to such 91
st
day and is contested by such Obligor, on the later of such 91
st
day and the date on which such bankruptcy petition is dismissed) (such 91
st
day or, if applicable such date on which such bankruptcy petition is dismissed, the “
Release Date
”), PBGC will be deemed to have released the Obligors and any other members of the Obligors’ “controlled group” (as defined under 29 U.S.C. § 1301(a)(14)) as of the DOPT (individually, “
Controlled Group Member
,” and all such members, including the Obligors, collectively, the “
Controlled Group Members
”) from the Settled ERISA Liabilities. Notwithstanding anything in this Agreement to the contrary, nothing herein releases any person or entity from any liability in connection with a violation of any Fiduciary Breach Provisions, and PBGC expressly retains any and all claims with respect to any such liability.
8.
Governing Law
. Except to any extent preempted by federal law, the laws of the State of Utah (without giving effect to its principles of conflicts of law) govern all matters relating to this Agreement. Each Party: (a) consents to the non-exclusive jurisdiction of the U.S. District Court for the District of Columbia and its appellate courts for all matters relating to this Agreement; (b) consents that any action or proceeding relating to this Agreement may be brought in any such court; and (c) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same.
9.
Entire Agreement
. Except to the extent of any references herein to any other Settlement Document, this Agreement constitutes the entire and final agreement between the Parties with respect to the matters provided for herein, and no other agreement or understanding exists between the Parties with respect to such matters.
10. This Agreement may not be altered, amended, modified, or otherwise changed in any respect except by an instrument in writing executed by the Party to be charged with such alteration, amendment, modification, or other change.
11. This Agreement may be executed in one or more counterparts and by different Parties on separate counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of this Agreement by emailed PDF file (to stanhecht@keightleyashner.com for Obligors; to Salembier.Cameo@pbgc.gov for PBGC) will be equally as effective as delivery of an original executed counterpart of this Agreement.
12. If any provision in this Agreement shall be invalid, inoperative or unenforceable, the remaining provisions of this Agreement shall remain in effect if both the economic and legal substance of the transactions contemplated hereby are not materially affected in any manner adverse to either Party. Otherwise, the Parties shall negotiate in good faith to rewrite any such provision so as to, as nearly and fairly as possible, approach the economic and legal substance originally intended.
13.
Construction
. The language used in this Agreement will be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against either Party. Nor will any rule of construction that favors a non-draftsman be applied. A reference to any statute will be deemed also to refer to all rules and regulations promulgated under the statute, unless the context requires otherwise. In this Agreement, unless specifically otherwise provided or the context otherwise requires, the singular includes the plural and the plural the singular; the word “or” is deemed to include “and/or”; the words “including”, “includes” and “include” are deemed to be followed by the words “without limitation”; pronouns in masculine, feminine, or neuter genders include any other gender; and references to sections, exhibits or schedules are to those of this Agreement. The words “herein,” “hereof,” “hereby,” “hereunder,” “herewith,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. Headings and captions in this Agreement are included for convenience of reference only and do not constitute a part of this Agreement for any other purpose.
14.
Notices
. All notices, demands, instructions, and other communications required or permitted under the Agreement to any Party (a “
Notice
”) must be in writing, will be effective upon receipt, and must be delivered by a nationally recognized pre-paid overnight delivery service. Unless otherwise specified in a Notice sent or delivered in accordance with the foregoing provisions of this Section, Notices must be sent to the Parties as indicated below:
In the case of the Obligors, to:
David Bateman
President and CEO
Evans & Sutherland Computer Corporation
770 Komas Drive
Salt Lake City, UT 84108
With a copy to:
Stanley M. Hecht, Esq.
Keightley & Ashner LLP
One Metro Center
700 12th Street, N.W., Suite 700
Washington, D.C. 20005
and:
Jeffrey M. Jones, Esq.
Durham Jones & Pinegar
111 East Broadway, Suite 900
Salt Lake City, UT 84111
In the case of PBGC to:
Pension Benefit Guaranty Corporation
Office of the Chief Counsel
Attn: Cameo M. Salembier
1200 K Street, N.W., Suite 340
Washington, D.C. 20005-4026
15.
Authorization
. Each Party represents and warrants that it is authorized to enter into this Agreement. Each signatory represents and warrants that he or she is authorized to execute this Agreement on behalf of the Party for whom he or she has signed.
16.
Advice of Counsel
. Each Party represents and warrants to each other that it has been represented and advised by counsel or has had full opportunity to be represented and advised by counsel with respect to the Settlement Documents and all matters covered by them.
17.
Costs
. Each Party shall bear its own costs and expenses, including attorneys’ fees, in connection with the preparation, execution, and delivery of the Settlement Documents, and in connection with the consummation of the transactions contemplated thereby.
18.
No Third-Party Beneficiaries
. This Agreement is intended to be and is for the sole and exclusive benefit of E&S, Spitz and PBGC, any other Controlled Group Members (but only with respect to
Sections 4 and 7
) and their respective successors and assigns. Nothing expressed or mentioned in or to be implied from this Agreement gives any person or entity any legal or equitable right, remedy, or claim against the Parties under or in respect of this Agreement.
IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement as of the Effective Date.
Evans & Sutherland Computer Corporation
/s/ David Bateman
Name: David Bateman
Title: President & CEO
Spitz, Inc.
/s/ David Bateman
Name: David Bateman
Title: President & CEO
Pension Benefit Guaranty Corporation
/s/ Dana Cann
Name: Dana Cann
Title: Director, Corporate Finance and Restructuring Department
Exhibit 10.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (“
Security Agreement
”) is entered into as of April 21, 2015 (“
Effective Date
”), by and among the Pension Benefit Guaranty Corporation (“
PBGC
”), a wholly-owned United States government corporation and agency created by Title IV of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), Evans & Sutherland Computer Corporation (“
E&S
”), and its wholly owned subsidiary, Spitz, Inc. (“
Spitz
”, and collectively with E&S, the “
Obligors
”; the Obligors, collectively with PBGC, the “
Parties
”).
RECITALS
A. E&S, a Utah corporation which maintains its headquarters in Salt Lake City, Utah, and Spitz, a Delaware corporation which maintains its headquarters in Chadds Ford, Pennsylvania, engage in the production and sale of visual display systems.
B. E&S sponsored the Evans & Sutherland Computer Corporation Pension Plan (the “
Plan
”). The Plan terminated under 29 U.S.C. § 1341(c) with a termination date under 29 U.S.C. § 1348 of March 8, 2013.
C. On the Effective Date, the Parties entered into a settlement agreement (the “
Settlement Agreement
”), pursuant to which the Obligors agreed to, among other things, make certain Installment payments to PBGC on account of the Plan’s termination and to grant the security interest provided for in the operative provisions of this Security Agreement in order to secure the Obligors’ payment and performance of the Secured Obligations.
OPERATIVE PROVISIONS
NOW, THEREFORE, for valuable consideration, receipt of which is acknowledged, the Parties agree as follows:
1.
Definitions
(a)
Capitalized Terms Not Defined Herein
. Terms defined in the Settlement Agreement or the UCC (as defined below) which are not otherwise defined in this Security Agreement have the meanings provided therein.
(b)
Definitions of Certain Terms Used Herein
. As used in this Security Agreement, in addition to the terms defined in the preamble, Recitals or elsewhere in this Security Agreement, the following terms shall have the following meanings:
“
Accounts
” shall have the meaning set forth in Article 9 of the UCC.
“
Article
” means a numbered article of this Security Agreement, unless another document or statute (such as the UCC) is specifically referenced.
“
Assigned Contracts
” means, collectively, all of each Obligor’s rights and remedies under, and all moneys and claims for money due or to become due to such Obligor under any material contracts (except Excluded Contracts) including all rights and claims of each Obligor now or hereafter existing: (a) under any insurance, indemnities, warranties, and guarantees provided for or arising out of or in connection with any of the foregoing agreements; (b) for any damages arising out of or for breach or default under or in connection with any of the foregoing contracts; (c) to all other amounts from time to time paid or payable under or in connection with any of the foregoing agreements; and (d) to exercise or enforce any and all covenants, remedies, powers and privileges thereunder. Notwithstanding the foregoing, any and all payments or other amounts or assets received by either Obligor under an Excluded Contract (“
Excluded Contract Proceeds
”) shall be Collateral.
“
BMT
” means The Bryn Mawr Trust Company and its successors and assigns.
“
BMT Intercreditor Agreement
” means the Intercreditor Agreement between BMT and PBGC entered into on or about the date hereof.
“
Chattel Paper
” shall have the meaning set forth in Article 9 of the UCC.
“
Code
” shall mean the Internal Revenue Code of 1986, as the same now exists or may from time to time hereafter be amended.
“
Collateral
” shall have the meaning set forth in
Section 2
.
“
Commercial Tort Claims
” means those certain currently existing commercial tort claims, as defined in the UCC, including each commercial tort claim specifically described in
Schedule 3(h)
.
“
Control
” shall have the meaning set forth in Article 8 or, if applicable, in Section 9-104, 9-105, 9-106 or 9-107 of Article 9 of the UCC.
“
Copyrights
” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright, copyright registrations, and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing throughout the world.
“
Deposit Accounts
” shall have the meaning set forth in Article 9 of the UCC.
“
Disclosed Liens
” shall have the meaning set forth in
Section 3(a)
.
“
Documents
” shall have the meaning set forth in Article 9 of the UCC.
“
Equipment
” shall have the meaning set forth in Article 9 of the UCC.
“
Excluded Contract
” means each contract in which any Obligor now or hereafter has rights, to the extent in each case, a security interest may not be granted by such Obligor in such contract as a matter of applicable law, or under the effective terms of the governing document applicable thereto, without the consent of one or more parties thereto other than any Obligor, but only for so long as such consent has not been obtained, provided however, that the Obligors shall use best efforts to avoid the requirement of third party consents in each after-acquired contract.
“
Fixtures
” shall have the meaning set forth in Article 9 of the UCC.
“
General Intangibles
” shall have the meaning set forth in Article 9 of the UCC.
“
Goods
” shall have the meaning set forth in Article 9 of the UCC.
“
Instruments
” shall have the meaning set forth in Article 9 of the UCC.
“
Intercreditor Agreements
” means the BMT Intercreditor Agreement and the KeyBank Intercreditor Agreement.
“
Inventory
” shall have the meaning set forth in Article 9 of the UCC
“
KeyBank
” means KeyBank National Association and its successors and assigns.
“
KeyBank Intercreditor Agreement
” means the Lien Subordination Agreement between Keybank and PBGC entered into on or about the date hereof.
“
Investment Property
” shall have the meaning set forth in Article 9 of the UCC.
“
Letter-of-Credit Rights
” shall have the meaning set forth in Article 9 of the UCC.
“
Licenses
” means, with respect to any Person, all of such Person’s right, title, and interest in and to (a) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and (c) all rights to sue for past, present, and future breaches thereof.
“
Patents
” means, with respect to any Person, all of such Person’s right, title, and interest in and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing throughout the world.
“
PBGC Settlement Documents
” shall mean, collectively, the Settlement Agreement, this Security Agreement, and all other mortgages, deeds of trust, agreements, documents and instruments at any time executed or delivered by one or more Obligors or any other Person to, with or in favor of PBGC in connection with or related to the Settlement Agreement, as all of the foregoing now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced. For the avoidance of doubt, the Intercreditor Agreements are not PBGC Settlement Documents.
“
Permitted Liens
” means any of the following: (1) liens of carriers, warehousemen, landlords, mechanics, laborers, materialmen, and other similar persons arising by law in the ordinary course of business securing obligations which are (i) not yet due or (ii) being diligently contested in good faith by appropriate proceedings, with adequate reserves having been established therefor in accordance with U.S. GAAP, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the Collateral subject to such liens; (2) liens for taxes which are (i) not yet delinquent or (ii) being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with U.S. GAAP; (3) good faith pledges or grants of security interests to secure statutory obligations, surety, appeal, indemnity, performance or other similar bonds—including letters of credit—required in the ordinary course of the Obligors’ business and not in connection with the borrowing of money, provided that in each case the obligation secured is not overdue or, if overdue, is being diligently contested in good faith by appropriate actions or proceedings and adequate reserves have been established in accordance with U.S. GAAP with respect to such obligation; (4) purchase-money or capital lease liens in equipment and related software and the proceeds thereof so long as such lien attaches only to the asset purchased or acquired and such proceeds; (5) judgments that have not become final and are being appealed in good faith and have been properly secured or bonded pending the resolution thereof; (6) Disclosed Liens; and (7) the Senior Liens.
“
Person
” shall have the meaning set forth in Article 1 of the UCC.
“
Pledged Collateral
” means all Instruments, Securities and other Investment Property of the Obligors constituting Collateral, whether or not physically delivered to PBGC pursuant to this Security Agreement.
“
Receivables
” means the Accounts, Chattel Paper, Documents, Investment Property, Instruments and any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral.
“
Secured Obligations
” means the Installments and all of the Obligors’ other obligations under this Security Agreement and each other PBGC Settlement Document.
“
Senior Creditor
” means each of BMT and KeyBank and “
Senior Creditors
” means both of them.
“
Senior Liens
” means those liens and security interests in any or all of the Collateral in favor of BMT or KeyBank now or hereafter securing Senior Obligations.
“
Senior Obligations
” means in the case of BMT, Loan Debt (as defined in the BMT Intercreditor Agreement) and in the case of KeyBank Bank Indebtedness secured by Bank Collateral (as such terms are defined in the KeyBank Intercreditor Agreement). The Senior Obligations exclude any and all Excess Loan Debt as defined in the BMT Intercreditor Agreement.
“
Stock Rights
” means any securities, dividends, instruments or other distributions and any other right or property which either of the Obligors shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any securities or other ownership interests in a corporation, partnership, joint venture or limited liability company constituting Collateral and any securities, any right to receive securities and any right to receive earnings, in which the Obligors now have or hereafter acquire any right, issued by an issuer of such securities.
“
Supporting Obligations
” shall have the meaning set forth in Article 9 of the UCC.
“
Trademarks
” means, with respect to any Person, all of such Person’s right, title, and interest in and to the following: (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all licenses of the foregoing, whether as licensee or licensor; (c) all renewals of the foregoing; (d) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (f) all rights corresponding to any of the foregoing throughout the world.
“
UCC
” means the Uniform Commercial Code as in effect from time to time in the State of Utah;
provided that
, if by reason of mandatory provisions of law, perfection, or the effect of perfection or non-perfection or the priority of a security interest in any Collateral or the availability of any remedy hereunder is governed by the Uniform Commercial Code as in effect in a jurisdiction other than Utah, “
UCC
” means the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or effect of perfection or non-perfection or priority or availability of such remedy, as the case may be.
“
U.S. GAAP
” means United States Generally Accepted Accounting Principles, applied on a basis consistent with the preparation of Obligors’ most recent audited financial statements.
2.
Grant of Security Interest
.
Each Obligor hereby pledges, assigns and grants to PBGC a security interest in all of such Obligor’s right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of such Obligor (including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased from or to, such Obligor, and regardless of where located (collectively, with respect to both Obligors, the “Collateral”), including:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all Fixtures;
(f) all General Intangibles;
(g) all Goods;
(h) all Instruments;
(i) all Inventory;
(j) all Investment Property;
(k) all letters of credit of which an Obligor is the beneficiary, Letter-of-Credit Rights and Supporting Obligations;
(l) all Deposit Accounts with any bank or other financial institution other than those maintained with a Senior Creditor;
(m) all Assigned Contracts and Excluded Contract Proceeds;
(n) all Receivables;
(o) all of either Obligor’s interest as lessor under any lease;
(p) all Commercial Tort Claims;
(q) all Stock Rights;
(r) all Farm Products; and
(s) all accessions to, substitutions for and replacements, proceeds, insurance proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;
to secure the prompt and complete payment and performance of the Secured Obligations. The foregoing liens and security interests are under and subject to the Senior Liens and the rights of BMT and Keybank to the extent provided in the Intercreditor Agreements or otherwise provided by law.
3.
Representations and Warranties
Each Obligor represents and warrants to PBGC as to itself that:
(a)
Title, Perfection and Priority
. Such Obligor has good and valid right and title in and power to transfer the Collateral owned by it and with respect to which such Obligor has purported to grant a security interest hereunder, free and clear of all liens except for Permitted Liens including the Senior Liens and any other liens disclosed by it on
Schedule 3(a)
(the “
Disclosed Liens
”), and has full power and authority to grant to PBGC the security interest in such Collateral pursuant hereto.
When an appropriate financing statement naming such Obligor and indicating such Collateral owned by it has been filed in the office of the Secretary of State of its state of incorporation, PBGC will have a fully perfected security interest in that Collateral of such Obligor in which a security interest may be perfected by filing, subject only to Permitted Liens.
(b)
Type and Jurisdiction of Organization, Organizational and Identification Numbers
. The type of entity of such Obligor, its state of organization and its federal employer identification number are set forth in
Schedule 3(b)
.
(c)
Principal Location
. Such Obligor’s mailing addresses and the locations of such Obligor’s place of business (if it has only one) or chief executive office (if it has more than one place of business), are disclosed in
Schedule 3(c)
; such Obligor has no other places of business except those set forth in
Schedule 3(c)
.
(d)
Collateral Locations
. All of such Obligor’s locations where Collateral is located are listed in
Schedule 3(d)
.
(e)
Deposit Accounts
. All of such Obligors’ Deposit Accounts are listed in
Schedule 3(e)
.
(f)
Exact Names
. Such Obligor’s name in which it has executed this Security Agreement is the exact name as it appears in such Obligor’s organizational documents, as amended, as filed with its state of organization.
(g)
Intellectual Property
. Such Obligor does not have any interest in, or title to, any Patent, Trademark or Copyright except as set forth in
Schedule 3(g)
.
(h)
Commercial Tort Claims
. Such Obligor does not have any interest in, or title to, any Commercial Tort Claim except as set forth in
Schedule 3(h)
.
(i)
No Financing Statements, Security Agreements
. No financing statement or security agreement describing all or any portion of the Collateral which has not lapsed or been terminated naming such Obligor as debtor has been filed or is of record in any jurisdiction, except with respect to the Senior Liens and any Disclosed Liens.
4.
Covenants
. From the date of this Security Agreement, and thereafter until this Security Agreement terminates, the Obligors agree that:
(a)
General
.
(1)
Collateral Records
. The Obligors will maintain in accordance with customary business practices complete and accurate books and records with respect to the Collateral owned by the Obligors, and furnish to PBGC such reports relating to such Collateral as PBGC shall from time to time reasonably request.
(2)
Authorization to File Financing Statements; Ratification
. The Obligors hereby authorize PBGC to file, and if requested will deliver to PBGC, all financing statements and other documents and take such other actions as may from time to time be requested by PBGC in order to maintain a perfected security interest in the Collateral owned by the Obligors subject only to Permitted Liens. Any financing statement filed by PBGC may be filed in any filing office in any UCC jurisdiction and may (A) indicate each Obligor’s Collateral (i) as all assets of such Obligor or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (ii) by any other description which reasonably approximates the description contained in this Security Agreement, and (B) contain any other information required by Part 5 of Article 9 of the UCC for the sufficiency or filing or acceptance of any financing statement or amendment, including without limitation (i) whether E&S or Spitz is an organization, the type of organization and any organization identification number issued to E&S or Spitz, and (ii) in the case of a financing statement filed as a fixture filing or indicating an Obligor’s Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. The Obligors also agree to furnish any such information to PBGC promptly upon request. At PBGC’s request, the Obligors will do and perform all acts and things PBGC reasonably deems necessary or appropriate to perfect, or to give any necessary or appropriate notice of, PBGC’s security interest in the Collateral.
(3)
Further Assurances
. The Obligors will, if so requested by PBGC, furnish to PBGC, as often as PBGC reasonably requests, statements and schedules further identifying and describing the Collateral owned by the Obligors and such other reports and information in connection with its Collateral as PBGC may reasonably request, all in such detail as PBGC may specify. Each Obligor also agrees to take any and all actions necessary to defend title to the Collateral owned by it against all Persons and to defend the security interest of PBGC in such Obligor’s Collateral and the priority thereof against any lien except Permitted Liens.
(4)
Liens
. No Obligor will create, incur, or suffer to exist any lien on the Collateral owned by it except (A) Permitted Liens, (B) the security interests created by this Security Agreement (the “
PBGC Security Interest
”), and (C) liens and security interests hereafter granted by an Obligor that are junior in priority to the PBGC Security Interest.
(5)
Other Financing Statements
. The Obligors will not authorize the filing of any financing statement naming E&S or Spitz as debtor covering all or any portion of the Collateral owned by E&S or Spitz, except with respect to Permitted Liens as expressly permitted by
Section 4(a)(4)
.
(6)
Locations
. No Obligor will (A) maintain any material value of Collateral owned by it at any location other than those locations listed on
Schedule 3(d)
, (B) otherwise change, or add to, such locations without 10 days’ prior written notice to PBGC, or (C) change its principal place of business or chief executive office from the location identified on
Schedule 3(c)
, without 10 days’ prior written notice to PBGC.
(7)
Compliance with Terms
. Each Obligor will perform and comply in all material respects with all obligations in respect of the Collateral owned by it and all agreements to which it is a party or by which it is bound relating to such Collateral.
(8)
Notice of Action
.
The Obligors will notify PBGC of any legal process levied against the Collateral or any other event which may materially affect (A) the value, use or possession of the Collateral or (B) any of the rights of PBGC in relation to the Collateral.
(9)
Disposition of Collateral
. No Obligor will sell, lease or otherwise dispose of the Collateral owned by it outside the ordinary course of its business without PBGC’s prior written consent.
(10)
Change in Corporate Existence, Type or Jurisdiction of Organization, Location, Name
. Each Obligor will:
(A) preserve its existence and corporate structure as in effect on the Effective Date, and
(B)
not change its jurisdiction of organization;
unless, in each such case, it shall have given PBGC not less than 15 days’ prior written notice of such event or occurrence (or such shorter period as may be acceptable to PBGC in its sole discretion).
(b)
Receivables
.
(1)
Certain Agreements on Receivables
. The Obligors will not make or agree to make any material discount, credit, rebate or other reduction in the original amount owing on a Receivable or accept in satisfaction of a Receivable materially less than the original amount thereof, except that, prior to the occurrence of a Default, each Obligor may take any such action in accordance with its usual and customary business practices in the ordinary course of its business.
(2)
Collection of Receivables
. Except to any extent otherwise expressly provided in this Security Agreement, each Obligor will use commercially reasonable efforts to collect and enforce in accordance with its usual and customary business practices, at its sole expense, all amounts due or hereafter due to it under the Receivables owned by it.
(3)
Delivery of Invoices
. Each Obligor will deliver to PBGC promptly upon PBGC’s request after the occurrence of a Default copies of invoices with respect to each Account owned by such Obligor (but in the case of Spitz, only after payment of all Senior Obligations secured by such Account), bearing such language of assignment as PBGC may specify.
(4)
Disclosure of Counterclaims on Receivables
. If after the occurrence of a Default (A) any discount, credit or agreement to make a rebate or to otherwise materially reduce the amount owing on any Receivable owned by an Obligor exists, or (B) if, to the knowledge of an Obligor, any dispute, setoff, claim, counterclaim or defense exists or has been asserted or threatened with respect to any such Receivable, such Obligor will promptly disclose such fact to PBGC in writing.
(c)
Inventory and Equipment
. Each Obligor will do all things necessary to maintain, preserve, protect and keep its Inventory and the Equipment in good repair and working and saleable condition, except for damaged or defective goods arising in the ordinary course of its business and except for ordinary wear and tear in respect of such Equipment.
(d)
Delivery of Instruments, Securities, Chattel Paper and Documents
. Promptly following PBGC’s request to either Obligor (but in the case of Spitz, only after payment of all Senior Obligations to BMT secured by Collateral described in this paragraph), such Obligor will (1) deliver to PBGC the originals of all Chattel Paper, Securities and Instruments constituting Collateral owned by such Obligor (if any then exist), (2) hold in trust for PBGC upon receipt and immediately thereafter deliver to PBGC any such Chattel Paper, Securities and Instruments constituting Collateral, and (3) deliver to PBGC (and thereafter hold in trust for PBGC upon receipt and immediately deliver to PBGC) any Document evidencing or constituting Collateral.
(e)
Uncertificated Pledged Collateral
. Promptly following PBGC’s request to either Obligor (but in the case of Spitz, only after payment of all Senior Obligations to BMT secured by Collateral described in this paragraph), such Obligor will permit PBGC from time to time to cause the appropriate issuers (and, if held with a securities intermediary, such securities intermediary) of uncertificated securities or other types of Pledged Collateral owned by such Obligor not represented by certificates to mark its books and records with the numbers and face amounts of all such uncertificated securities or other types of Pledged Collateral not represented by certificates and all rollovers and replacements therefor to reflect the lien of PBGC granted pursuant to this Security Agreement. Promptly following any such request, with respect to any Pledged Collateral owned by such Obligor, such Obligor will take any actions necessary to cause (1) the issuers of uncertificated securities which are Pledged Collateral, and (2) any securities intermediary which is the holder of any such Pledged Collateral, to cause PBGC to have and retain Control over such Pledged Collateral. Without limiting the foregoing, promptly following any such request, such Obligor will, with respect to any such Pledged Collateral held with a securities intermediary, cause such securities intermediary to enter into a control agreement with PBGC, in form and substance satisfactory to PBGC, giving PBGC Control.
(f)
Intellectual Property
. If, after the date hereof, either Obligor obtains ownership rights to, including, but not limited to filing and acceptance of a statement of use or an amendment to allege use with the United States Patent and Trademark Office, or applies for or seeks registration of (other than registration of an intent to use a Trademark), any new patentable invention, Trademark or Copyright in addition to the Patents, Trademarks and Copyrights described in
Schedule 3(g)
, then such Obligor shall give PBGC notice thereof within 10 days after obtaining such ownership rights. The Obligors agree promptly upon request by PBGC to execute and deliver to PBGC any supplement to this Security Agreement or any other document requested by PBGC to evidence Secured Party’s security interest in such new application or registration in a form appropriate for recording in the applicable federal office. Each Obligor also hereby authorizes PBGC to modify this Security Agreement unilaterally (i) by amending
Schedule 3(g)
to include any future Patents, Trademarks and/or Copyrights of which PBGC receives notification from such Obligor pursuant hereto, and (ii) by recording, in addition to and not in substitution for this Security Agreement, a duplicate original of this Security Agreement containing in
Schedule 3(g)
a description of such future Patents, Trademarks and/or Copyrights.
(g)
No Interference
. Each Obligor agrees that it will not interfere with any right, power and remedy of PBGC provided for in this Security Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by PBGC of any one or more of such rights, powers or remedies, provided that the foregoing shall not limit Obligors’ right in good faith to contest that a Default has occurred.
(h)
Notices to PBGC
. Within five days after the occurrence of any Default (as defined below) or any event that with notice or passage of time or both, would constitute a Default, the Obligors will provide PBGC with written notice of such occurrence.
5.
Defaults
.
The occurrence of any one or more of the following events shall constitute a “Default” hereunder:
(a) An Obligor fails to timely perform any of the covenants contained in
Sections 4(a)(4), (5), (9) or (10)
of this Security Agreement.
(b) An Obligor fails to timely provide any notice required under
Section 4(h)
of this Security Agreement.
(c) An Obligor fails to perform or observe any other term, covenant, condition, undertaking or provision contained in this Security Agreement and such failure, if capable of being cured, is not cured within 30 days after written notice thereof from PBGC.
(d)
An
Event of Default, as defined in any other PBGC Settlement Document, occurs.
(e) A material provision of any PBGC Settlement Document shall for any reason cease to be valid, binding and enforceable with respect to either Obligor in accordance with its terms, or either Obligor challenges the enforceability hereof or thereof, or asserts in writing, or takes any action or fails to take any action based on the assertion that any provision hereof or thereof has ceased to be or is otherwise not valid, binding or enforceable in accordance with its terms, or any security interest, mortgage or lien provided for herein or therein shall cease to be a valid and perfected first priority security interest in any of the Collateral purported to be subject thereto (except as otherwise permitted herein or therein).
(f) Either Obligor dissolves, suspends, or discontinues doing business.
6.
Remedies
. PBGC shall have the following rights and remedies (subject in each case to the Intercreditor Agreements):
(a) At any time a Default has occurred, PBGC shall have all rights and remedies provided in this Security Agreement, the other PBGC Settlement Documents, the UCC, and other applicable law, all of which rights and remedies may be exercised without notice to or consent by the Obligors, except to any extent that such notice or consent is expressly provided for hereunder or required by applicable law and not waivable under such law (it being understood and agreed by the Obligors that, to the fullest extent permitted by applicable law, the Obligors hereby waive all such notice not expressly provided for hereunder). All rights, remedies and powers granted to PBGC hereunder, under the UCC or other applicable law, are cumulative, not exclusive, and enforceable, in PBGC’s sole discretion, alternatively, successively, or concurrently on any one or more occasions, and shall include, without limitation, the right to apply to a court of equity for an injunction to restrain a breach or threatened breach by the Obligors of this Security Agreement or any other PBGC Settlement Document.
(b) Without limiting the foregoing, at any time after a Default occurs, PBGC may, in its sole discretion and without limitation: (1) accelerate the payment of all Secured Obligations and demand immediate payment thereof to PBGC
whereupon (A) the Secured Obligations shall be immediately due and payable without presentment, demand, protest or formalities of any kind, all of which the Obligors hereby waive, and (B) the Secured Obligations shall accrue interest, compounded daily, at the rate provided in 29 C.F.R. § 4062.7(c) (such rate, compounded daily, the “Default Rate”), from the date of such Default until paid in full
, (2) with or without judicial process or the aid or assistance of others, but in accordance with applicable law, enter upon any premises on or in which any of the Collateral may be located and take possession of the Collateral or any portion of the Collateral, (3) require the Obligors, at the Obligors’ expense, to assemble and make available to PBGC any part or all of the Collateral at any place and time designated by PBGC, (4) collect, foreclose, receive, appropriate, setoff and realize upon any and all Collateral, (5) to the fullest extent permitted by applicable law remove any or all of the Collateral from any premises on or in which the same may be located for the purpose of effecting the sale, foreclosure or other disposition thereof or for any other purpose, (6) sell, lease, transfer, assign, deliver or otherwise dispose of any and all Collateral (including entering into contracts with respect thereto, public or private sales at any exchange, broker’s board, office of PBGC or elsewhere) at such prices or terms as PBGC may deem reasonable, for cash, upon credit or for future delivery, with the PBGC having the right to purchase the whole or any part of the Collateral at any such public sale, all of the foregoing being free from any right or equity of redemption of either Obligor, which right or equity of redemption is hereby expressly waived and released by each Obligor, or (7) exercise its statutory rights to enforce and collect the Settled ERISA Liabilities (less any Installment payments made) under Title IV of ERISA (including perfecting and enforcing liens under 29 U.S.C. § 1368). If any of the Collateral is sold or leased by PBGC upon credit terms or for future delivery, the Secured Obligations will not be reduced as a result thereof until payment therefor is finally collected by PBGC. If notice of disposition of Collateral is required by law, 10 days prior notice by PBGC to the Obligors designating the time and place of any public sale or the time after which any private sale or other intended disposition of Collateral is to be made, shall be deemed to be reasonable notice thereof and the Obligors waive any other notice. In the event PBGC institutes an action to recover any Collateral or seeks recovery of any Collateral by way of prejudgment remedy, the Obligors waive the posting of any bond which might otherwise be required.
(c) At any time after a Default has occurred, PBGC may, in its sole discretion, enforce each Obligor’s rights against any account debtor, in respect of any Accounts or other Receivables. Without limiting the generality of the foregoing, PBGC may at such time or times (1) notify any or all account debtors, secondary obligors or other obligors in respect thereof that Receivables have been assigned to PBGC and that PBGC has a security interest therein and PBGC may direct any or all account debtors to make payment of Receivables directly to PBGC, (2) extend the time of payment of, compromise, settle or adjust for cash, credit, return of merchandise or otherwise, and upon any terms or conditions, any and all Receivables or other obligations included in the Collateral and thereby discharge or release the account debtor or any secondary obligors or other obligors in respect thereof without affecting any of the Secured Obligations, (3) demand, collect or enforce payment of any Receivables or such other obligations, but without any duty to do so, and PBGC shall not be liable for its failure to collect or enforce the payment thereof nor for the negligence of its agents or attorneys with respect thereto, and (4) take whatever other action PBGC may deem necessary or desirable for the protection of its interests. At any time after a Default has occurred, at PBGC’s request, all invoices and statements sent to any account debtor shall state that the Accounts and such other obligations have been assigned to PBGC and are payable directly and only to PBGC, and the Obligors shall deliver to PBGC such originals of documents evidencing the sale and delivery of goods or the performance of services giving rise to any Accounts as PBGC may require.
(d) To the extent that applicable law imposes duties on PBGC to exercise remedies in a commercially reasonable manner (and such duties cannot be waived under such law, each Obligor hereby waiving such duties to the fullest extent permitted by law), the Obligors acknowledge and agree that it is not commercially unreasonable for PBGC: (1) to fail to incur expenses reasonably deemed significant by PBGC to prepare Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition, (2) to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other law, to fail to obtain consents of any governmental authority or other third party for the collection or disposition of Collateral to be collected or disposed of, (3) to fail to exercise collection remedies against account debtors, secondary obligors or other persons obligated on Collateral or to remove liens or encumbrances on or any adverse claims against Collateral, (4) to exercise collection remedies against account debtors and other persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (5) to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (6) to contact other persons, whether or not in the same business as the Obligors, for expressions of interest in acquiring all or any portion of the Collateral, (7) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not such Collateral is of a specialized nature, (8) to dispose of Collateral by utilizing Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capability of doing so, or that match buyers and sellers of assets, (9) to dispose of assets in wholesale rather than retail markets, (10) to disclaim disposition warranties, (11) to purchase insurance or credit enhancements to insure PBGC against risks of loss, collection or disposition of Collateral or to provide to PBGC a guaranteed return from the collection or disposition of Collateral, or (12) to the extent deemed appropriate by PBGC, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist PBGC in the collection or disposition of any of the Collateral. The Obligors acknowledge that the purpose of this
Section 6(d)
is to provide non-exhaustive indications of actions and omissions by PBGC which would not be commercially unreasonable in PBGC’s exercise of remedies against the Collateral and that other actions or omissions by PBGC will not be deemed commercially unreasonable solely or partly on account of not being indicated in this
Section 6(d)
. Without limitation of the foregoing, nothing contained in this Section 6(d) will be construed to grant any rights to the Obligors or to impose any duties on PBGC that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this
Section 6(d)
.
(e) At any time after a Default has occurred, PBGC may apply the cash proceeds of Collateral actually received by PBGC from any sale, lease, foreclosure or other disposition of the Collateral to payment of the Secured Obligations, in whole or in part and in accordance with the terms hereof, whether or not then due or may hold such proceeds as cash collateral for the Secured Obligations. The Obligors shall remain liable to PBGC for the payment of any deficiency with interest at the Default Rate and all costs and expenses of collection or enforcement, including attorneys’ fees and expenses.
(f) For the purpose of enabling PBGC to exercise its rights and remedies hereunder,
each Obligor hereby grants to PBGC, to the extent assignable, an irrevocable, non-exclusive license (exercisable at any time after a Default has occurred) without payment of royalty or other compensation to such Obligor, to sue, assign, license or sublicense any of the trademarks, service-marks, trade names, business names, trade styles, designs, logos and other source of business identifiers and other intellectual property and general intangibles now owned or hereafter acquired by such Obligor, wherever the same may be located, including in such license reasonable access to all media in which any of the licensed items may be recorded or stored and to all computer programs used for the compilation or printout thereof.
(g) For the purpose of enabling PBGC to exercise the rights and remedies hereunder at such time as PBGC shall be lawfully entitled to exercise such rights and remedies, each Obligor hereby (1) grants to PBGC an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to such Obligor) to use, license or sublicense any Copyrights, Patents, Trademarks or Licenses now owned or hereafter acquired by such Obligor, and wherever the same may be located, but subject in the case of each license to performance of all obligations of such Obligor in respect thereof, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, and (2) irrevocably agrees that PBGC may sell any of such Obligor’s Inventory directly to any Person, including without limitation Persons who have previously purchased such Obligor’s Inventory from it and in connection with any such sale or other enforcement of PBGC’s rights under this Security Agreement, may sell Inventory which bears any Trademark owned by or licensed to such Obligor and any Inventory that is covered by any Copyright owned by or licensed to such Obligor and PBGC may finish any work in process and affix any Trademark owned by or licensed to such Obligor and sell such Inventory as provided herein.
7.
No Responsibility
.
Each Obligor acknowledges that the PBGC has no responsibility for, and does not assume any of, such Obligor’s obligations or duties under any agreement, instrument, general intangible or other contract or obligation which is part of the Collateral or any obligation relating to the acquisition, preparation or holding of the Collateral.
8.
Reinstatement
.
This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against either Obligor for liquidation or reorganization, should either Obligor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of either Obligor’s assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Secured Obligations, or any part thereof, is, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Secured Obligations, whether as a “voidable preference,” “fraudulent conveyance,” or otherwise, all as though such payment or performance had not been made.
In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned (any payment or part thereof so rescinded, reduced, restored or returned, an “Avoided Payment”), the Secured Obligations shall automatically be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
9.
Termination
.
This Security Agreement shall continue in effect, and the security interest granted hereby, the duties, covenants and liabilities of the Obligors hereunder and all the terms, conditions and provisions hereof shall continue to be fully operative until all of the Secured Obligations, including any Avoided Payments, have been paid in full. Upon termination of this Security Agreement, PBGC shall, within 20 days of receiving from each Obligor a Notice of Termination of the UCC-1 Financing Statement prepared by it at its sole expense, file said documents, or otherwise file appropriate documents prepared by the Obligors at the Obligors’ sole expense to withdraw or terminate liens, where appropriate.
10.
Indemnity
.
The Obligors assume liability for, and agree to indemnify PBGC (and each of its employees, directors, and agents) against, and on written demand to pay, or to reimburse PBGC for the payment of any or all liabilities, obligations, losses, damages, penalties, claims, suits, actions, costs, expenses, and disbursements, including reasonable legal fees and expenses of any kind and nature imposed on, incurred by, or asserted against PBGC relating to or arising out of this Security Agreement or any other PBGC Settlement Document;
provided
, that the Obligors shall not be required to indemnify PBGC against any of the foregoing that results from the gross negligence or willful misconduct of PBGC (or any employee, director, or agent thereof.)
11.
Miscellaneous
.
(a)
Amendments
. This Security Agreement cannot be changed or terminated orally and can only be modified upon the written consent of the Party to be charged with such modification.
(b)
Counterparts
. This Security Agreement may be executed in one or more counterparts and by different Parties on separate counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of this Security Agreement by facsimile or emailed PDF file (to stanhecht@keightleyashner.com for the Obligors; to Salembier.Cameo@pbgc.gov for PBGC) will be equally as effective as delivery of an original executed counterpart of this Security Agreement.
(c)
Choice of Law; Jurisdiction; Venue
. Except to any extent preempted by federal law, the laws of the State of Utah (without giving effect to its principles of conflicts of law) shall govern all matters relating to this Security Agreement. Each Party (a) consents to the non-exclusive jurisdiction of the U.S. District Court for the District of Columbia and its appellate courts for all matters relating to this Security Agreement, (b) consents that any action or proceeding relating to this Security Agreement may be brought in any such court, and (c) waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same.
(d)
Waiver of Jury Trial
. The Obligors hereby waive trial by jury in any judicial proceeding involving, directly or indirectly, any matter (whether sounding in tort, contract, or otherwise) in any way arising out of, related to, or connected with the Secured Obligations, this Security Agreement, any other PBGC Settlement Document, or the relationship established hereunder or thereunder.
(e)
Entire Agreement
. Except to the extent of any references herein to any other PBGC Settlement Document, this Security Agreement (together with all Schedules hereto) constitutes the entire and final agreement between the Parties with respect to the matters provided for herein and no other agreement or understanding exists between the Parties with respect to such matters. PBGC acknowledges and agrees that its rights and remedies hereunder are subject and subordinate to certain rights and remedies of BMT and KeyBank as provided in the applicable Intercreditor Agreements. Each Obligor acknowledges and agrees that it is not a party to, is not an intended third party beneficiary under, and has no rights or remedies under or on account of the Intercreditor Agreements.
(f)
Notices
. All notices, demands, instructions, and other communications required or permitted under this Security Agreement to any Party (a “
Notice
”) must be provided in the same manner as required by
Section 14
of the Settlement Agreement.
(g)
Authority to Enter Agreement
. Each Party represents and warrants that it has full power and authority to enter into this Security Agreement, that all necessary corporate approvals have been granted and all other appropriate action has been taken to cause them to possess such power and authority and that this Security Agreement constitutes its legal, valid and binding obligation enforceable against it. Each signatory represents and warrants that he or she is authorized to execute this Security Agreement on behalf of the Party for whom he or she has signed.
(h) In this Security Agreement, unless specifically otherwise provided or the context otherwise requires, the singular includes the plural and the plural the singular; the word “or” is deemed to include “and/or”; the words “including”, “includes” and “include” are deemed to be followed by the words “without limitation”; pronouns in masculine, feminine, or neuter genders include any other gender; and references to sections, exhibits or schedules are to those of this Security Agreement. The words “herein,” “hereof,” “hereby,” “hereunder,” “herewith,” and words of similar import refer to this Security Agreement as a whole and not to any particular subdivision unless expressly so limited. Headings and captions in this Security Agreement are included for convenience of reference only and do not constitute a part of this Security Agreement for any other purpose.
IN WITNESS WHEREOF
, the Parties have executed this Security Agreement as of the Effective Date.
EVANS & SUTHERLAND COMPUTER
CORPORATION
|
PENSION BENEFIT GUARANTY
CORPORATION
|
|
|
|
|
By:
/s/ David Bateman
|
By:
/s/ Dana Cann
|
|
|
Name: David Bateman
|
Name: Dana Cann
|
|
|
Title: President & CEO
|
Title: Director, Corporate Finance and
|
|
Restructuring Department
|
SPITZ, INC.
By:
/s/ David Bateman
Name: David Bateman
Title: President & CEO
SCHEDULES
Schedule 3(a) - Disclosed Liens
Personal Property
Senior Lien
: First priority security interest in all assets granted to The Bryn Mawr Trust Company to secure Senior Obligations of Spitz to The Bryn Mawr Trust Company.
Disclosed Liens
: None
Real Property
Mortgage on real property owned by Spitz, Inc., located at:
700 Brandywine Drive, Chadds Ford, PA 19317
Schedule 3(b) - Type and Jurisdiction of Organization, Organizational and Tax Identification Numbers
Evans & Sutherland Computer Corporation
Corporation organized under the laws of the State of Utah
Federal Taxpayer Identification Number: 87-0278175
Spitz, Inc.
Corporation organized under the laws of the State of Delaware
Federal Taxpayer Identification Number: 23-1892719
Schedule 3(c) - Principal Location
Evans & Sutherland Computer Corporation
770 Komas Drive
Salt Lake City, UT 84108
Spitz, Inc.
700 Brandywine Drive
Chadds Ford, PA 19317
Schedule 3(d) - Collateral Locations
Evans & Sutherland Computer Corporation
770 Komas Drive
Salt Lake City, UT 84108
Spitz, Inc.
700 Brandywine Drive
Chadds Ford, PA 19317
Schedule 3(e) - Deposit Accounts
Bank
|
Owner
|
Description
|
Account #
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Checking operating
|
4761055243
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Checking cash receipts
|
4761055250
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Checking payroll
|
4132310343
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Checking check disbursements
|
4123710493
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Money market LC collateral
|
3801563101
|
WELLS FARGO BANK
|
Evans & Sutherland
|
Checking credit card cash advances
|
4132322454
|
Bryn Mawr Trust
|
Spitz
|
Checking operating
|
1064314519
|
Bryn Mawr Trust
|
Spitz
|
Money market unrestricted cash
|
1065310276
|
Bryn Mawr Trust
|
Spitz
|
Money market LC collateral
|
2500084
|
Bryn Mawr Trust
|
Spitz
|
Checking payroll
|
1064313552
|
Bryn Mawr Trust
|
Spitz
|
Checking check disbursements
|
1064314527
|
M&T Bank
|
Spitz
|
Checking
|
990204685
|
Susquehanna Bank
|
Spitz
|
Money market
|
8517435
|
Schedule 3(g) - Intellectual Property
INTELLECTUAL PROPERTY RIGHTS
PATENTS
Name of Grantor
|
Patent Description
|
Patent Number
|
Issue Date
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR ALIGNING RGB LIGHT IN A SINGLE-CHIP MODULATOR PROJECTOR
|
US 7,891,818
|
2/22/2011
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR DISPLAYING STEREO IMAGES
|
US 7,675,513
|
3/9/2010
|
US Patent and Trademark Office
|
SHUTTERING SYSTEM FOR SCANNING PROJECTORS
|
US 7,628,327
|
12/8/2009
|
US Patent and Trademark Office
|
HIGH-RES IMAGING SYSTEM FOR SCANNED COLUMN PROJECTORS
|
US 7,420,177
|
9/2/2008
|
US Patent and Trademark Office
|
METHOD FOR TUNING A FIBER OPTIC COMPONENT
|
US 7,327,909
|
2/5/2008
|
US Patent and Trademark Office
|
Thermally-controlled fiber optic tuning and isolating device
|
US 7,215,840
|
5/8/2007
|
US Patent and Trademark Office
|
Tension-Controlled Fiber optic mechanical/thermal tuning and isolating device
|
US 7,197,200
|
3/27/2007
|
US Patent and Trademark Office
|
VIDEO DISPLAY SYSTEM UTILIZING GAMMA CORRECTION
|
US 7,038,735
|
5/2/2006
|
US Patent and Trademark Office
|
REFLECTION BARRIER FOR PANORAMIC DISPLAY
|
US 7,012,669
|
3/14/2006
|
US Patent and Trademark Office
|
ULTRA-HIGH RESOLUTION LIGHT MODULATION CONTROL SYSTEM AND METHOD
|
US 6,856,449
|
2/15/2005
|
Name of Grantor
|
Patent Description
|
Patent Number
|
Issue Date
|
US Patent and Trademark Office
|
METHOD AND APPARATUS FOR CONTROLLING WAVELENGTH AND DOMINANT MODE IN FIBER LASERS
|
US 6,868,212
|
3/15/2005
|
US Patent and Trademark Office
|
APPARATUS AND METHOD FOR FREQUENCY CONVERSION AND MIXING OF LASER LIGHT
|
US 6,763,042
|
7/13/2004
|
US Patent and Trademark Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
US 5,870,098
|
2/9/1999
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR IMPROVING PIXEL UPDATE PERFORMANCE
|
US 5,841,447
|
11/24/1998
|
US Patent and Trademark Office
|
PLACEMENT TOOL FOR RETRO-REFLECTIVE CALIBRATION POINTS
|
US 5,825,538
|
10/20/1998
|
US Patent and Trademark Office
|
PROJECTION SCREEN WITH RETRO-REFLECTIVE CALIBRATION POINTS, PLACEMENT TOOL AND METHOD
|
US 5,638,208
|
6/10/1997
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR REDUCING INTERPIXEL GAPS IN A DISPLAY
|
US 8,702,248
|
4/22/2014
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR DISPLAYING A PLANAR IMAGE ON A CURVED SURFACE
|
US 8,358,317
|
1/22/2013
|
US Patent and Trademark Office
|
CALIBRATION SYSTEM AND METHOD FOR LIGHT MODULATION DEVICE
|
US 8,077,378
|
12/13/2011
|
Canadian Intellectual Property Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
CA 2,282,637
|
9/18/2007
|
United Kingdom Patent Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
UK 2,336,984
|
9/5/2001
|
PATENT APPLICATIONS
Name of Grantor
|
Patent Application
|
Application Filing Date
|
Application Serial
Number
|
US Patent and Trademark Office
|
METHOD AND APPARATUS FOR GRAPHICAL USER INTERFACE INTERACTION ON A DOMED DISPLAY
|
July 19, 2013
|
13/987,379
|
US Patent and Trademark Office
|
SYSTEM AND METHOD FOR DISPLAYING DISTANT 3-D STEREO ON A DOME SURFACE
|
July 10, 2012
|
13/545,948
|
TRADEMARKS
Name of Grantor
|
Trademark
|
Registration Date
|
Registration Number
|
US Patent and Trademark Office
|
DIGISTAR
|
July 18,1989
|
1548086
|
US Patent and Trademark Office
|
E&S DESIGN (CORP LOGO)
|
August 31, 1999
|
2274250
|
US Patent and Trademark Office
|
EVANS & SUTHERLAND
|
February 19, 2002
|
2538917
|
US Patent and Trademark Office
|
SPHERICAL 3D
|
February 8, 2011
|
3917474
|
US Patent and Trademark Office
|
VISIONDOME
|
July 16, 1996
|
1987133
|
Canadian Intellectual Property Office
|
EVANS & SUTHERLAND
|
October 10, 2003
|
TMA591853
|
Canadian Intellectual Property Office
|
THE POWER BEHIND THE SCENES
|
January 25, 2002
|
TMA556864
|
Canadian Intellectual Property Office
|
LASERWIDE
|
January 25, 2005
|
TMA631074
|
Canadian Intellectual Property Office
|
ESLP
|
June 19, 2007
|
TMA690172
|
Canadian Intellectual Property Office
|
DIGISTAR
|
September 11, 2001
|
TMA550595
|
Canadian Intellectual Property Office
|
E&S DESIGN (CORP LOGO)
|
October 23, 2003
|
TMA592967
|
ECT
|
DIGISTAR
|
April 18, 2001
|
1468628
|
ECT
|
EVANS & SUTHERLAND
|
February 13, 2001
|
1452242
|
Europe
|
ENVIRONMENT CREATION TOOL
|
March 5, 2007
|
4884805
|
Europe
|
EPX
|
January 25, 2007
|
004884383
|
Europe
|
ECT
|
September 26, 2007
|
004884367
|
Europe
|
TARGETVIEW
|
March 5, 2007
|
004884417
|
Europe
|
VISTAVIEW
|
March 5, 2007
|
004884433
|
Australia
|
DIGISTAR
|
August 24, 1999
|
778517
|
Japan
|
DIGISTAR
|
December 10, 1999
|
4342923
|
TRADEMARK APPLICATIONS
Name of Grantor
|
Trademark Application
|
Application Filing Date
|
Application Serial
Number
|
NO APPLICATIONS
|
|
|
|
COPYRIGHTS
Name of Grantor
|
Copyright
|
Registration Date
|
Registration Number
|
US COPYRIGHT OFFICE
|
Cross 353 D7 circa 587 ORCA
|
July 22, 1987
|
MW-2-841
|
US COPYRIGHT OFFICE
|
Data Formatter
|
August 1, 1986
|
MW-2-033
|
US COPYRIGHT OFFICE
|
Delta Calculator
|
January 13, 1987
|
MW-2-289
|
US COPYRIGHT OFFICE
|
Depth Cue
|
January 13, 1987
|
MW-2-286
|
US COPYRIGHT OFFICE
|
Divider
|
January 13, 1987
|
MW-2-287
|
US COPYRIGHT OFFICE
|
DNA.1
|
April 21, 1986
|
MW-1-795
|
US COPYRIGHT OFFICE
|
Evans & Sutherland Computer Division ORCA (M) 1988 PMM5 Dec 88
|
December 26, 1989
|
MW-5-455
|
Name of Grantor
|
Trademark Application
|
Application Filing Date
|
Application Serial
Number
|
US COPYRIGHT OFFICE
|
Evans & Sutherland Computer Division ORCA (M) 1989 CX NID 23E
|
April 10, 1989
|
MW-4-552
|
US COPYRIGHT OFFICE
|
Evans & Sutherland Computer Division ORCA (M) 1989 IB 512E Sep 89
|
December 26, 1989
|
MW-5-456
|
US COPYRIGHT OFFICE
|
Evans & Sutherland Computer Division ORCA (M) 1989 PMMB 2E Apr 89
|
May 18, 1989
|
MW-4-779
|
US COPYRIGHT OFFICE
|
Evans & Sutherland Computer Division PIXP (M) 1989 PP 43 Oct 1989
|
November 14, 1989
|
MW-5-350
|
US COPYRIGHT OFFICE
|
Fifo/stack/bus controller
|
January 13, 1987
|
MW-2-284
|
US COPYRIGHT OFFICE
|
Fortran code generator
|
April 9, 1990
|
TX-2-869-817
|
US COPYRIGHT OFFICE
|
Fortran code generator. By Evans & Sutherland
|
November 19, 1990
|
TX-3-178-110
|
US COPYRIGHT OFFICE
|
IU2 chip 4#
|
December 23, 1988
|
MW-4-296
|
US COPYRIGHT OFFICE
|
Link 8SP3E SEP 88 ORCA (M) 1987
|
November 18, 1988
|
MW-4-193
|
US COPYRIGHT OFFICE
|
Multiplier
|
January 13, 1987
|
MW-2-288
|
US COPYRIGHT OFFICE
|
ORCA (M) 1987 REG SP2 Aug 87
|
January 24, 1989
|
MW-4-305
|
US COPYRIGHT OFFICE
|
ORCA (MO 1988 Oct 1988 IB 374E
|
January 3, 1989
|
MW-4-326
|
US COPYRIGHT OFFICE
|
Pixel processor
|
January 13, 1987
|
MW-2-285
|
US COPYRIGHT OFFICE
|
PMM 4SP2 Jul 87 ORCA (M) 1987
|
August 20, 1987
|
MW-2-929
|
US COPYRIGHT OFFICE
|
REG SP@ Aug 87 ORCA (MO) 1987
|
October 4, 1988
|
MW-4-006
|
US COPYRIGHT OFFICE
|
Solid-state light modulator chip
|
September 1, 1987
|
MW-3-047
|
US COPYRIGHT OFFICE
|
3D SignGen
|
November 20, 2000
|
TX0005195937
|
US COPYRIGHT OFFICE
|
AccelGALAXY 2100
|
November 20, 2000
|
TX0005195957
|
US COPYRIGHT OFFICE
|
Airport Construction Tool
|
November 20, 2000
|
TX0005195936
|
US COPYRIGHT OFFICE
|
Database Creation Tool
|
November 20, 2000
|
TX0005195954
|
US COPYRIGHT OFFICE
|
Digistar V2.2
|
November 20, 2000
|
TX0005195938
|
US COPYRIGHT OFFICE
|
E&S Lighting 1200
|
November 20, 2000
|
TX0005195956
|
US COPYRIGHT OFFICE
|
E&S RAPIDsite
|
November 20, 2000
|
TX0005195961
|
US COPYRIGHT OFFICE
|
E&S Tornado 3000
|
November 20, 2000
|
TX0005195955
|
US COPYRIGHT OFFICE
|
EaSIEST
|
November 20, 2000
|
TX0005195942
|
US COPYRIGHT OFFICE
|
Ensemble Run Time Kernel
|
November 20, 2000
|
TX0005195952
|
US COPYRIGHT OFFICE
|
ESCP DCPC Software
|
November 20, 2000
|
TX0005195939
|
US COPYRIGHT OFFICE
|
ESCP Projector Software
|
November 20, 2000
|
TX0005195940
|
US COPYRIGHT OFFICE
|
Fire Engine Model
|
September 23, 2005
|
VA0001311696
|
US COPYRIGHT OFFICE
|
Flight to Integrator Converter with E&S multigen extensions
|
November 20, 2000
|
TX0005195947
|
US COPYRIGHT OFFICE
|
Flight Simulator Library
|
March 15, 2006
|
VA0001342776
|
US COPYRIGHT OFFICE
|
GLAZE
|
November 20, 2000
|
TX0005195959
|
US COPYRIGHT OFFICE
|
GT Decortor
|
November 20, 2000
|
TX0005195960
|
US COPYRIGHT OFFICE
|
Harmony Run Time Kernel
|
November 20, 2000
|
TX0005195958
|
US COPYRIGHT OFFICE
|
Integrator (Master Graph)
|
November 20, 2000
|
TX0005195946
|
US COPYRIGHT OFFICE
|
Integrator Application
|
November 20, 2000
|
TX0005195945
|
US COPYRIGHT OFFICE
|
Integrator to Harmony Optimized Graph Converter
|
November 20, 2000
|
TX0005195948
|
Name of Grantor
|
|
Application Filing Date
|
Application Serial
Number
|
US COPYRIGHT OFFICE
|
Integrator-to-Mission-Function-Generator-Converter
|
November 20, 2000
|
TX0005195953
|
US COPYRIGHT OFFICE
|
Mission Function Generator Real time Software
|
November 20, 2000
|
TX0005195964
|
US COPYRIGHT OFFICE
|
Parametric Feature Editor
|
November 20, 2000
|
TX0005195966
|
US COPYRIGHT OFFICE
|
Sensor PP1.0 Application software (also Sensor Post Processor Software.irpp.exe
|
November 20, 2000
|
TX0005195965
|
US COPYRIGHT OFFICE
|
ShowMaker 5.0
|
November 20, 2000
|
TX0005195962
|
US COPYRIGHT OFFICE
|
E&S: SimFUSION ; Version 2.0
|
November 20, 2000
|
TX0005190551
|
US COPYRIGHT OFFICE
|
Terrain Construction Tool
|
November 20, 2000
|
TX0005195941
|
US COPYRIGHT OFFICE
|
Tile Mosaic Tool
|
November 20, 2000
|
TX0005195949
|
US COPYRIGHT OFFICE
|
Transposer (IDF based)
|
November 20, 2000
|
TX0005195950
|
US COPYRIGHT OFFICE
|
Vanguard Radar Application Software (also: RadarSrvc.exe, Srvc.exe)
|
November 20, 2000
|
TX0005195951
|
US COPYRIGHT OFFICE
|
Vistaview/Targetview VME Software
|
November 20, 2000
|
TX0005195963
|
COPYRIGHT APPLICATIONS
Name of Grantor
|
Copyright Application
|
Application Filing Date
|
Application Serial
Number
|
NO APPLICATIONS
|
|
|
|
INTELLECTUAL PROPERTY LICENSES
Name of Grantor
|
Name of Agreement
|
Date of Agreement
|
P
arties to Agreement
|
Evans & Sutherland Computer Corp.
|
Asset Purchase Agreement
|
February 7, 2006
|
Evans & Sutherland Computer Corp. and Rockwell Collins, Inc.
|
Fully-paid, royalty-free right and license to Rockwell Collins Inc.
|
Canadian Intellectual Property Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
CA 2,282,637
|
9/18/2007
|
United Kingdom Patent Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
UK 2,336,984
|
9/5/2001
|
US Patent and Trademark Office
|
VIDEO DISPLAY SYSTEM UTILIZING GAMMA CORRECTION
|
US 7,038,735
|
5/2/2006
|
US Patent and Trademark Office
|
METHOD FOR RENDERING SHADOWS ON A GRAPHICAL DISPLAY
|
US 5,870,098
|
2/9/1999
|
US Patent and Trademark Office
|
PLACEMENT TOOL FOR RETRO-REFLECTIVE CALIBRATION POINTS
|
US 5,825,538
|
10/20/1998
|
US Patent and Trademark Office
|
PROJECTION SCREEN WITH RETRO-REFLECTIVE CALIBRATION POINTS, PLACEMENT TOOL AND METHOD
|
US 5,638,208
|
6/10/1997
|
Schedule 3(h) - Commercial Tort Claims
None
Exhibit 10.4
OPEN-END MORTGAGE
THIS MORTGAGE SECURES
FUTURE ADVANCES
Record and Return To:
Ballard Spahr LLP
1735 Market Street, 51
st
Floor
Philadelphia, PA 19103
Attention: Carl H. Fridy, Esq.
Property Tax ID No. 04-00-00034-02
Chadds Ford, Delaware County
OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
___________________________________________________________
THIS INSTRUMENT IS AN OPEN-END MORTGAGE AND SECURES PRESENT
AND FUTURE INDEBTEDNESS, OBLIGATIONS, AND ADVANCES UP TO A
MAXIMUM AMOUNT OF
TWO HUNDRED PERCENT (200%) OF THE ORIGINAL PRINCIPAL AMOUNT STATED IN THE FIRST PARAGRAPH BELOW
,
PURSUANT TO 42 PA.C.S.A. §§ 8143-8144.
THIS INSTRUMENT IS ALSO A FINANCING STATEMENT FILED AS A FIXTURE
FILING PURSUANT TO §§ 9334 AND 9502 OF THE PENNSYLVANIA UNIFORM
COMMERCIAL CODE.
THIS
OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
(this “
Security Instrument
”) is given on April __, 2015 (the “
Effective Date
”), by SPITZ, INC., a Delaware corporation (“
Mortgagor
”) having an address at P.O. Box 198 Chadds Ford, Pennsylvania 19317, to PENSION BENEFIT GUARANTY CORPORATION, a wholly-owned United States government corporation (“
Mortgagee
”) having an address at 1200 K Street N.W., Washington, D.C. 20005. Mortgagor is indebted to Mortgagee in the aggregate amount of $10,500,000 incurred under Mortgagee’s settlement agreement with Mortgagor and Evans & Sutherland Computer Company (collectively, with Mortgagor, the “
Obligors
”) dated April __, 2015 (the “
Settlement Agreement
”). This Security Instrument secures to Mortgagee the payment of such amount and all other Secured Obligations (as defined in the Security Agreement between Obligors and Mortgagee dated April __, 2015 and executed in connection with the Settlement Agreement; such Security Agreement the “
Security Agreement
”, and, collectively with this Security Instrument and the Settlement Agreement, the “
Settlement Documents
”) including the payment of any and all other sums advanced under
Paragraph 4
hereof to protect the security of this Security Instrument and the performance of Mortgagor’s covenants and agreements under the Settlement Documents.
For these purposes, and upon the terms and conditions set forth in this Security Instrument, Mortgagor irrevocably mortgages, grants, conveys and assigns to Mortgagee, with the right of entry and possession, Mortgagor’s interest in and to the following (collectively, the “
Property
”):
|
(a)
|
All real property located in Delaware County, Pennsylvania, and described on
Exhibit A
attached hereto (the “
Land
”).
|
|
(b)
|
All easements, rights-of-way and rights used in connection with or as a means of access to any portion of the Land.
|
|
(c)
|
All tenements, hereditaments and appurtenances with respect to the Land.
|
|
(d)
|
All right, title and interest of Mortgagor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Land, and any and all sidewalks, alleys and strips and gores of land adjacent to or used in connection with the Land.
|
|
(e)
|
All buildings, improvements and landscaping now or hereafter erected or located on the Land.
|
|
(f)
|
All development rights, governmental or quasi-governmental licenses, permits or approvals, zoning rights and other similar rights or interests which relate to the development, use or operation of, or that benefit or are appurtenant to, the Land.
|
|
(g)
|
All mineral rights, oil and gas rights, air rights, water or water rights, including without limitation, all wells, canals, ditches and reservoirs of any nature and all rights thereto, appurtenant to or associated with the Land, whether decreed or undecreed, tributary or non-tributary, surface or underground, appropriated or unappropriated, and all shares of stock in any water, canal, ditch or reservoir company, and all well permits, water service contracts, drainage rights and other evidences of any such rights.
|
|
(h)
|
All reversions, remainders, rents, issues, income and profits arising or issuing from the Land and/or the buildings, structures and improvements now or hereafter erected or placed thereon, or any portion thereof (all such rents, issues, income and profits, the “
Rents
”), including, but not limited to, the rents, issues, income and profits arising or issuing from all insurance policies, sale agreements, licenses, options, leases and subleases now or hereafter entered into covering any part of the Land and/or the buildings, structures and improvements now or hereafter erected or placed thereon, or any portion thereof, all of which insurance policies, sale agreements, licenses, options, leases, subleases, rents, issues, income and profits are hereby assigned to Mortgagee by Mortgagor. Mortgagor will execute and deliver to Mortgagee, on demand, such separate, specific assignments and instruments as Mortgagee may reasonably require to implement, confirm, maintain and continue the assignment hereunder. Mortgagor hereby appoints Mortgagee, its designees and nominees, as Mortgagor’s agents and attorneys-in-fact to collect such rents, issues and profits.
|
|
(i)
|
All awards, damages, payments and other compensation, and any and all claims therefor, and rights thereto, which may result from taking or injury by virtue of the exercise of the power of eminent domain of, or to, or any damage, injury or destruction in any manner caused to, the Land and/or the
buildings, structures and improvements now or hereafter erected or placed thereon, or any portion thereof, all of which award, damages, payments, compensation, claims and rights are hereby assigned to Mortgagee to the fullest extent that Mortgagor may do so under law. Mortgagor hereby appoints Mortgagee, its designees and nominees, as Mortgagor’s agents and attorneys-in-fact to, subject to
Paragraphs 5(a) and 5(b)
, collect any such awards, damages, payments and compensation.
|
|
(j)
|
All fixtures, fittings, furnishings, furniture, trade fixtures, machinery, equipment, apparatus, building materials, appliances, goods, supplies, tools, chattels, and all articles of tangible personal property of whatever kind and nature, together with all replacements thereof, substitutions therefor and additions and accessions thereto, and all proceeds and profits thereof and therefrom, now or at any time hereafter, affixed or attached to, installed upon, included within, or used in any way in connection with the construction, use, enjoyment, operation, maintenance or occupancy of the Land and the buildings, structures and improvements now or hereafter erected or placed thereon; and all agreements, contract rights, chattel paper, negotiable instruments, general intangibles, accounts, instruments, and documents (as those terms are defined in the Pennsylvania Uniform Commercial Code) in connection with the Land and the buildings, structures and improvements now or hereafter erected or placed thereon. Any item referred to in this paragraph (j) shall hereinafter, for purposes of creating a security interest therein under the Pennsylvania Uniform Commercial Code, sometimes be referred to as the “
Personal Property
”.
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(k)
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All interest or estate which Mortgagor now has or may hereafter acquire in the Land and all additions and accretions thereto.
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SECURITY AGREEMENT.
This Security Instrument creates a continuing security interest in the personal property and fixtures included among the Property and constitutes a security agreement under the Uniform Commercial Code as enacted in the Commonwealth of Pennsylvania. In addition to the other purposes of this Security Instrument, the recording of this Security Instrument constitutes the filing of a financing statement as to property which is or becomes a fixture related to the Land.
UNDER AND SUBJECT to the liens and security interests of The Bryn Mawr Trust Company (together with its successors and assigns, the “
Senior Creditor
”) on the Property as provided in that certain Intercreditor Agreement of even date herewith between Senior Creditor and Mortgagee (the “
Intercreditor Agreement
”).
MORTGAGOR’S COVENANTS
. Mortgagor hereby covenants and agrees as follows:
1.
Payment of Principal.
Mortgagor shall promptly pay when due all Installments (as defined in the Settlement Agreement) in accordance with the terms of the Settlement Agreement.
2.
Charges; Liens; Title; Assignment of Rents.
Mortgagor warrants, covenants and represents that it has good and marketable and unencumbered fee simple title to the Property subject only to customary exceptions included in policies issued by a title company issuing the current standard ALTA form of owner's title insurance policy in use in the Commonwealth of Pennsylvania and those liens and encumbrances (x) referred to in Section 26 hereof or described in
Exhibit B
attached hereto (“
Disclosed Liens
”) and/or (y) granted after the Effective Date and permitted pursuant to the terms of any other Settlement Documents that do not have priority over this Security Instrument ((x) and (y), collectively, “
Permitted Liens
”). Mortgagor will forever warrant and defend the title to the Property unto the Mortgagee, its successors and assigns, against all persons and all claims of every kind and nature whatsoever except the Permitted Liens. Mortgagor shall pay, directly and on time, all taxes, assessments, charges, fines and impositions attributable to the Property that may attain priority over this Security Instrument. Upon request from Mortgagee to Mortgagor, Mortgagor shall promptly furnish to Mortgagee receipts evidencing such payments. Mortgagor shall promptly discharge any lien (except for Disclosed Liens) which has priority over this Security Instrument unless Mortgagee consents in writing to the payment of the obligation secured by the lien in a manner reasonably acceptable to Mortgagee. Mortgagor hereby assigns to Mortgagee all Rents as further security for the payment of and performance of the Secured Obligations, and Mortgagor grants to Mortgagee the right to enter the Property for the purpose of collecting the same and to let the Property or any part thereof, and to apply the Rents to the Secured Obligations, whether or not then due, subject to Senior Creditor’s rights under the Intercreditor Agreement. The foregoing assignment and grant is present, irrevocable and absolute and shall continue in effect until the Secured Obligations are fully paid and performed, but Mortgagee hereby grants Mortgagor a revocable license to collect, receive, use and retain the Rents until the occurrence of an Event of Default (as defined below); such license to collect, receive, use and retain the Rents will be immediately and automatically deemed revoked by Mortgagee without the necessity of any action of Mortgagee upon the occurrence of any Event of Default; in the event such license is revoked, Mortgagor shall, subject to Senior Creditor’s rights under the Intercreditor Agreement, pay over to Mortgagee, or to any receiver appointed to collect the Rents, any lease security deposits, and shall pay monthly in advance to Mortgagee, or to any such receiver, the fair and reasonable rental value as determined by Mortgagee for the use and occupancy of such part of the Property as may be in the possession of Mortgagor or any affiliate of Mortgagor, and upon default in any such payment Mortgagor and any such affiliate will vacate and surrender the possession of the Property to Mortgagee or to such receiver, and in default thereof may be evicted by summary proceedings or otherwise.
3.
Preservation and Maintenance of Property.
(a)
Waste.
Mortgagor agrees not to materially alter, remove or demolish the Property. Mortgagor shall keep the Property in good repair, reasonable wear and tear excepted, and shall not commit or suffer waste thereof. Mortgagor agrees to entries upon and inspections of the Property by Mortgagee.
(b)
Insurance
. Mortgagor shall insure the Property against loss or damage by fire and such other risks as Mortgagee shall from time to time require, but in no event for a sum less than the Property’s full insurable value (“
Minimum Insurance
”). Mortgagor shall carry public liability insurance, flood insurance as required by applicable law and such other insurance as Mortgagee may reasonably require, including without limitation, business interruption insurance or loss of rental value insurance. Mortgagor shall maintain all required insurance at Mortgagor’s expense, under policies issued by companies and in form and substance satisfactory to Mortgagee and all such policies and renewals thereof shall include a standard mortgagee clause in favor of and in form acceptable to Mortgagee (“
Standard Mortgagee Clause
”). Mortgagee, by reason of accepting, rejecting, approving or obtaining insurance, shall not incur any liability for: (i) the existence, nonexistence, form or legal sufficiency thereof; (ii) the solvency of any insurer; or (iii) the payment of losses. All policies and certificates of insurance shall name Mortgagee as mortgagee/lender loss payee, and shall provide that the insurance cannot be terminated as to Mortgagee except upon a minimum of thirty (30) days’ prior written notice to Mortgagee. At least thirty (30) days prior to the expiration date of a policy, Mortgagor shall deliver to Mortgagee a renewal policy in form satisfactory to Mortgagee. In the event of loss, Mortgagor shall promptly give written notice to the insurance carrier and to Mortgagee. Except for the Minimum Insurance and the Standard Mortgagee Clause requirements of this
Paragraph 3(b)
, Mortgagee hereby agrees that, until payment of all Loan Debt (as defined in the Intercreditor Agreement) to Senior Creditor, compliance by Mortgagor with the insurance requirements imposed by Senior Creditor’s mortgage lien on the Property shall be deemed compliance with the requirements of this
Paragraph 3(b)
. To the extent not held by the holder of such a mortgage lien and promptly upon any request by Mortgagee, Mortgagor shall deliver to Mortgagee the original of all such policies or certificates, with receipts evidencing annual prepayment of the premiums.
4.
Protection of Mortgagee’s Rights in the Property.
If Mortgagor fails to perform the covenants and agreements contained in this Security Instrument within the timeframes provided herein, or there is a legal proceeding that may materially affect Mortgagee’s rights in the Property (such as a proceeding in foreclosure, bankruptcy, probate, for condemnation or to enforce laws or regulations), then Mortgagee, upon not less than five (5) days’ prior written notice to Mortgagor, may do and pay for whatever is reasonably necessary to protect the value of the Property and Mortgagee’s rights in the Property. Mortgagee’s actions may include paying any sums secured by a lien that has priority over this Security Instrument, appearing in court, paying reasonable attorneys’ fees and entering on the Property to make repairs. Although Mortgagee may take action under this
Paragraph 4
, Mortgagee shall be under no obligation to do so. Any amounts disbursed by Mortgagee under this
Paragraph 4
shall become additional debt of Mortgagor secured by this Security Instrument.
5.
Condemnation or Insurance Proceeds.
(a) The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, shall be applied as provided in this
Paragraph 5(a)
, subject to the rights of any Senior Creditor. In the event of a total taking of the Property, be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Mortgagor or as otherwise required by law.
In the event of a partial taking of the Property, if (i)
no event of default has occurred under this Security Instrument or under any other Settlement Document, and (ii)
Mortgagee is satisfied that there are sufficient proceeds to complete the restoration of the improvements constructed on the Land to the same value and condition as existed prior to such partial taking, then the proceeds shall be applied first to the repair and restoration of the Property, second to the payment of the sums secured by this Security Instrument, and third to Mortgagor.
(b) Subject to the payment of all Loan Debt, the proceeds of any insurance on the Property shall be applied as provided in this
Paragraph 5(b)
. Such proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Mortgagor or as otherwise required by law. Notwithstanding the immediately preceding sentence, if (i)
no event of default has occurred under this Security Instrument or under any other Settlement Document, and (ii)
Mortgagee is satisfied that there are sufficient insurance proceeds to complete the restoration of the improvements constructed on the Land to the same value and condition as existed prior to the insurable loss, then the proceeds shall be applied first to the repair and restoration of the Property, second to the payment of the sums secured by this Security Instrument, and third to Mortgagor.
6.
Forbearance by Mortgagee Not a Waiver.
Any forbearance by Mortgagee in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy.
7.
Successors and Assigns Bound.
The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Mortgagee and Mortgagor, respectively.
8.
Notices.
All notices made or required to be made under this Security Instrument must be provided in the same manner as required by Section 15 of the Settlement Agreement.
9.
Notices to Mortgagee
. Notwithstanding
Paragraph 8
hereof, Mortgagor agrees that any notice given by Mortgagor to Mortgagee purportedly pursuant to 42 Pa. C.S.A. §8143 shall be given by registered or certified mail, return receipt requested, to the address of the Mortgagee set forth on the signature page of this Security Instrument and only to such address, and such notice shall be deemed to have been received no earlier than the date actually and physically received at such address.
10.
Governing Law; Severability.
This Security Instrument shall be governed by the internal laws of the Commonwealth of Pennsylvania. In the event that any provision or clause of this Security Instrument conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument are declared to be severable.
11.
Due on Sale.
Except to any extent otherwise expressly provided in any other Settlement Document, Mortgagor shall not sell or transfer all or any part of the Property without Mortgagee’s prior written consent, and upon any such sale or transfer in contravention hereof, Mortgagee may, at its option, require immediate payment in full of all sums secured by this Security Instrument;
provided
,
however
, that the foregoing shall not apply to leases of, or other occupancy agreements relating to, all or a portion of the Property.
12.
Default.
For purposes hereof, “
Event of Default
” shall mean: (i) the failure of Mortgagor to timely perform or comply with any other of the terms, conditions, provisions, agreements, covenants and conditions of this Security Instrument and the continuation of such failure for more than ten (10) days after written notice of such failure is received by Mortgagor from Mortgagee, (ii) the occurrence of a “Default” under the Security Agreement (as defined therein) or an “Event of Default” under any other Settlement Document, (iii) the existence of any security interest, pledge, consensual lien, or other consensual encumbrance in favor of any party in the Property, except that of Mortgagee, Senior Creditor or any other Permitted Lien, (iv) the filing of any non-consensual lien or encumbrance, mechanic’s or materialmen’s lien or municipal claim against all or any portion of the Property which is not discharged within 30 days unless (1) such lien, encumbrance or claim is being contested by Mortgagor in good faith and due diligence in appropriate proceedings with the approval of Mortgagee and (2) a bond or escrow has been posted with Mortgagee for the full amount of such contested lien, encumbrance or claim, in which case Mortgagee shall have such longer period as may reasonably be necessary in which to discharge such contested lien, encumbrance or claim and (v) Mortgagor at any time delivers or causes to be delivered to Mortgagee a notice pursuant to 42 Pa. C.S.A. 8143.
13.
Acceleration; Remedies.
Upon the occurrence and continuance of an Event of Default, Mortgagee, at its option, may exercise any or all or any combination of the rights, powers and remedies (i) under this Mortgage or any other Settlement Document, (ii) described in Paragraph 19 of the First Mortgage (as defined below and as in effect on the date hereof), or (iii) now or hereafter existing at law, in equity or by statute including, without limitation, requiring immediate payment in full of all sums secured by this Security Instrument without further demand, electing to enforce the Settled ERISA Liabilities (as defined in the Settlement Agreement), foreclosing this Security Instrument by judicial proceeding or any other means permitted by law, or exercising any rights, powers, or remedies Mortgagee may have as a secured party under the Pennsylvania Uniform Commercial Code.
14.
Defeasance.
Upon payment of all sums secured by this Security Instrument, Mortgagee, without warranty, shall deliver to Mortgagor for recording in the appropriate real property records a discharge, satisfaction or release of Security Instrument for the Property, or that portion thereof then covered hereby, prepared by Mortgagor at Mortgagor’s sole expense.
15.
Intentionally deleted.
16.
Right of Inspection.
Mortgagee or its agents or employees may enter onto the Property at any reasonable time and upon at least one (1) business day’s prior notice to Mortgagor for the purpose of inspecting the Property and ascertaining Mortgagor’s compliance with the terms hereof.
17.
Changes in Writing.
No modification, amendment or waiver of any provision of this Security Instrument will be effective unless made in a writing signed by Mortgagor and Mortgagee.
18.
Duplicate Originals; Counterparts
. This Security Instrument may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original. The failure of Mortgagee to execute this Security Instrument, or any counterpart hereof, shall not relieve Mortgagor from its obligations hereunder.
19.
Fixture Filing
. This Security Instrument constitutes a fixture filing as to all of the Property which is or which hereafter becomes a “fixture” under applicable law and shall be filed for recording in the applicable land records. A carbon, photographic or other reproduction of this Security Instrument or any financing statement relating thereto shall be sufficient as a financing statement and shall be filed and indexed in the real estate records of each county in which the Land or any part thereof is located.
20.
Future Advances
. This Security Instrument is an Open-End Mortgage as defined in 42 Pa.C.S.A. §8143(f). Without the limiting of any other provisions of this Security Instrument, Mortgagee may make future advances, and this Security Instrument shall secure repayment of such advances, for the payment of taxes, assessments, maintenance charges, insurance premiums, or costs similar or dissimilar, incurred for the protection and preservation of the Property or for the lien of this Security Instrument, or expenses incurred by Mortgagee by reason of default by Mortgagor.
21. Intentionally deleted.
22.
Environmental Laws.
No deed prepared for the Property will be required to include a notice regarding the presence or disposal of hazardous materials pursuant to 35 P.S. §6018.405 of the Pennsylvania Solid Waste Management Act, 35 P.S. §6020.513 of the Pennsylvania Hazardous Sites Cleanup Act or pursuant to any other applicable environmental law and the Property has no such notice or restriction in its deed.
23. Intentionally deleted.
24.
Survival.
All covenants of Mortgagor contained herein providing for the indemnification, defense or release of Mortgagee, or for the payment of costs or expenses by Mortgagor, including without limitation the payment or reimbursement of attorneys’ fees or costs, or for the payment of any expenses for the protection, upkeep or maintenance of the Property, including the payment of taxes or any other expenses, are intended to be severable from the other provisions of this Security Instrument, shall survive the entry of any judgment hereunder, and shall not be deemed merged into the judgment. In particular and without limiting the foregoing, any attorneys’ fees incurred in the enforcement of any judgment obtained hereunder shall be recoverable as a separate item and shall not be merged into the judgment.
25.
WAIVER OF JURY TRIAL
. MORTGAGOR IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS SECURITY INSTRUMENT, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS SECURITY INSTRUMENT OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. MORTGAGOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
26.
BMT Mortgages
. This Security Instrument and Mortgagee’s rights in the Property and any proceeds thereof (including, without limitation, rents, issues and profits, insurance proceeds and condemnation proceeds are subject and subordinate, to the extent provided in the Intercreditor Agreement, to the following mortgages: (i) that certain Open-End Mortgage and Security Agreement executed by Mortgagor in favor of First Keystone Bank (“
FKB
”) (predecessor to Senior Creditor) dated January 14, 2004, recorded on January 20, 2004 in the official records of the Recorder of Deeds of Delaware County (the “
Recorder of Deed
s”) in Book No. 03066, Page 1588 (the “
First Mortgage
”); (ii) that certain Open-End Mortgage and Security Agreement executed by Mortgagor in favor of FKB (predecessor to Senior Creditor) dated September 11, 2008, recorded on September 19, 2008 in the official records of the Recorder of Deeds in Book No. 04433, Page 528; (iii) that certain Open-End Mortgage and Security Agreement executed by Mortgagor in favor of Senior Creditor dated March 15, 2012, recorded on April 9, 2012 in the official records of the Recorder of Deeds in Book No. 05095, Page 1858 and (iv) to the extent provided in the Intercreditor Agreement, any new mortgage hereafter created in favor of Senior Creditor .
27.
Construction
. In this Security Instrument, unless specifically otherwise provided or the context otherwise requires, the singular includes the plural and the plural the singular; the word “or” is deemed to include “and/or”; the words “including”, “includes” and “include” are deemed to be followed by the words “without limitation”; pronouns in masculine, feminine, or neuter genders include any other gender; and references to sections or exhibits are to those of this Security Instrument. The words “herein,” “hereof,” “hereby,” “hereunder,” “herewith,” and words of similar import refer to this Security Instrument as a whole and not to any particular subdivision unless expressly so limited. Headings and captions in this Security Instrument are included for convenience of reference only and do not constitute a part of this Security Instrument for any other purpose. A reference to any statute is deemed also to refer to all rules and regulations promulgated under the statute, unless the context requires otherwise
[Signatures Follow]
Mortgagor acknowledges that it has read and understood all the provisions of this Security Instrument, including the waiver of jury trial, and has been advised by counsel as necessary or appropriate
.
BY SIGNING BELOW
Mortgagor has executed this Security Instrument as of the Effective Date, intending to be legally bound hereby.
MORTGAGO
R:
SPITZ, INC., a Delaware Corporation
By:
/s/ Paul L. Dailey
Name: Paul L. Dailey
Title: Executive Vice President
[Acknowledgment follows]
/s/ Dana Cann
, who further, by his/her/its signature hereto certifies that the address of the within Mortgagee is as follows:
1200 K Street N.W.
Washington, D.C. 20005
SIGNATURE PAGE- OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
COMMONWEALTH OF PENNSYLVANIA
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SS
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COUNTY OF DELAWARE
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On the 16 day of April, 2015, before me, the subscriber, a Notary Public in and for the Commonwealth and County aforesaid, personally appeared Paul L. Dailey, who acknowledged himself [herself/themselves] to be the Executive Vice President, of Spitz, Inc., a Delaware corporation, and that he [she/they], being authorized to do so, executed the foregoing Instrument for the purposes therein contained by signing the name of the corporation by himself [herself/themselves] as such officer.
WITNESS my hand and seal the day and year aforesaid.
/s/ Donna L Tinney
Notary Public
My Commission Expires: May 15, 2017
ACKNOWLEDGMENT PAGE- OPEN-END MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING
EXHIBIT “A”
LEGAL DESCRIPTION
ALL THAT CERTAIN
lot or parcel of land with building and improvements thereon erected, situated in the Township of Chadds Ford, County of Delaware, State of Pennsylvania, bounded and described according to a Final Subdivision Plan for Chadds Ford Plaza, made by Brandywine Valley Engineers, Aston, PA, dated 1/19/1998 and last revised 10/2/2002 as follows, to wit:
BEGINNING
at a point of curve on the Southwesterly side of Brandywine Drive (60 feet wide), being a corner of Proposed Lot #2 (as shown on said plan): thence from said point of beginning extending along said drive the three following courses and distances: (1) on a line curving to the left having a radius of 425.00 feet an arc distance of 74.78 feet to a point; thence (2) South 48 degrees 55 minutes 22 seconds East 467.61 feet to a point of curve; thence (3) on a line curving to the right having a radius of 250.00 feet an arc distance of 101.40 feet to a point, being a corner of lands now or late of Thomas Hannum; thence leaving said drive extending along lands of Hannum the two following courses and distances; (1) South 64 degrees 18 minutes 55 seconds West 229.98 feet to a point; thence (2) South 25 degrees 41 minutes 05 seconds East 261.49 feet to a point on the title line in the bed of Baltimore Pike, being a corner of lands of Hannum; thence extending along said title line the three following courses and distances; (1) South 66 degrees 53 minutes 00 seconds West 33.53 feet to a point; thence (2) South 60 degrees 12 minutes 00 seconds West 210.00 feet to a point; thence (3) South 57 degrees 55 minutes 00 seconds West 371.81 feet to a point, being a corner of other lands of Brandy Partners; thence leaving said pike extending along said lands the three following courses and distances; (1) North 20 degrees 56 minutes 06 seconds West 317.68 feet to a point; thence (2) North 52 degrees 44 minutes 03 seconds West 339.59 feet to a point; thence (3) North 25 degrees 49 minutes 00 seconds West 295.00 feet to a point; thence still along said lands and along Lot #2 North 64 degrees 11 minutes 00 seconds East 743.13 feet to the first mentioned point and place of beginning.
BEING
Lot #3 on the above mentioned Plan.
BEING
Folio #04-00-00034-02
EXHIBIT “B”
LIENS AND ENCUMBRANCES OF RECORD
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1.
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Open-End Mortgage and Security Agreement executed by Mortgagor in favor of FKB (predecessor to Senior Creditor) dated January 14, 2004, recorded on January 20, 2004 in the official records of the Recorder of Deeds in Book No. 03066, Page 1588;
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2.
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Assignment of Rents, Profits and Leases executed by Mortgagor in favor of FKB (predecessor to Senior Creditor) dated January 14, 2004, recorded on January 20, 2004 in the official records of the Recorder of Deeds in Book No. 03066, Page 1607;
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3.
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UCC-1 Financing Statement by Mortgagor in favor of FKB (predecessor to Senior Creditor) recorded on July 12, 2006 in the official records of the Recorder of Deeds in Book No. 03849, Page 605 as financing statement no. 2006063937. Most recent UCC-3 Financing Statement (Continuation) for financing statement 2006063937 by Mortgagor in favor of Senior Creditor recorded on October 9, 2014 in the official records of the Recorder of Deeds in Book No. 05557, Page 405 as financing statement no. 2014052061;
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4.
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Open-End Mortgage and Security Agreement executed by Mortgagor in favor of FKB (predecessor to Senior Creditor) dated September 11, 2008, recorded on September 19, 2008 in the official records of the Recorder of Deeds in Book No. 04433, Page 528;
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5.
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Assignment of Rents, Profits and Leases executed by Mortgagor in favor of FKB (predecessor to Senior Creditor) dated September 11, 2008, recorded on September 19, 2008 in the official records of the Recorder of Deeds in Book No. 004433, Page No. 548;
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6.
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Open-End Mortgage and Security Agreement executed by Mortgagor in favor of Senior Creditor dated March 15, 2012, recorded on April 9, 2012 in the official records of the Recorder of Deeds in Book No. 05095, Page 1858;
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7.
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Lien in connection with judgment in case number 2013-011482 against Mortgagor in favor of Evans & Sutherland Computer Corporation Pension Plan in the amount of $1,782,394, entered November 18, 2013 by the Court of Common Pleas of Delaware County, Pennsylvania; and
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8.
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Lien in connection with judgment in case number 2014-000660 against Mortgagor in favor of Mortgagee in the amount of $280,664, entered January 23, 2014 by the Court of Common Pleas of Delaware County, Pennsylvania.
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