Exhibit 10.26
SECURITY AGREEMENT - [EQUIPMENT]
XXXX INDUSTRIES, INC. (herein called "Debtor") and GIBRALTAR CORPORATION OF
AMERICA, a New York corporation (herein called "Secured Party") hereby agree as
follows:
1. Debtor grants to Secured Party a security interest in the following
Equipment (herein called "Collateral"):
a. All of Debtor's present machinery, equipment, fixtures, vehicles,
furniture, tools, dies, jigs, and attachments (including, but not limited to,
the items listed and described on the Schedule of Equipment annexed);
b. All of Debtor's additional Equipment, of like or unlike nature, to
be acquired hereafter, and all replacements, accessions, and improvements to any
of the foregoing; and
c. All of the proceeds and products of any or all of the foregoing.
2. Said security interest shall always secure all of the following:
a. the payment of all of Debtor's present and future liabilities,
indebtedness and obligations due Secured Party, including, but not
limited to, the "Obligations" as defined in the Financing Agreement
between Debtor and Secured Party dated of even date herewith (the
"Financing Agreement"), however arising, and under the other "Loan
Agreements", as defined in the Financing Agreement, and any other
related documents, instrument, note, agreement or guaranty creating or
evidencing indebtedness or granting collateral security in favor of
Secured Party, all as the same may now exist or hereafter be amended,
modified, supplemented, renewed or extended; all other existing debts
and liabilities of Debtor to Secured Party; all future advances made
by Secured Party to or for the account of Debtor, including advances
for rent, insurance, storage, repairs to and maintenance of the
Collateral, taxes, and discharge of any other lien, security interest
or encumbrance; all other indebtedness, liabilities, undertakings and
obligations, however created direct or contingent (including
guarantees), arising or acquired by Secured Party, which Debtor may now
or hereafter owe to Secured Party; all costs and expenses incurred in
the collection of any of the foregoing, including reasonable attorneys'
fees, as hereinafter mentioned; and without limiting any of the
foregoing, all undertakings, guarantees, debts, liabilities and
obligations of Debtor to Secured Party.
3. Until default hereunder, Debtor shall be entitled to possession of the
Collateral, which shall be kept only at: 0 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx,
Xxx Xxxx 00000 and the following additional address (if any): 0000 Xxxxx
Xxxx Xxxx, Xxxxxxx. Xxxxxxxx 00000; Xxxxxxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000.
4. Debtor warrants, covenants, and agrees that: Debtor is the sole owner
of the Collateral free from any lien, security interest or encumbrance, has
the right to grant Secured Party a security interest therein, and will
defend the Collateral against the claims and demands of all persons; Debtor
shall not sell, lease, encumber, remove, conceal or grant or permit any
further security interest in the Collateral, nor part with possession of any
thereof, nor permit the same to be used for hire nor in violation of any law
or ordinance; Debtor shall maintain the Collateral in good condition and
repair at Debtor's sole expense; Debtor will pay all taxes levied on the
Collateral, and will make due and timely payment or deposit of all Federal,
State, and local taxes, assessments or contributions required by law and
will execute and deliver to Secured Party, on demand, appropriate
Certificates attesting to the payment or deposit thereof; No financing
statement covering the Collateral, or any part thereof, is on file in any
public office, except as disclosed in the Financing Agreement, and Debtor's
present or hereafter acquired Collateral is and shall not be or become
subject to any purchase-money or other lien or security interest except in
favor of Secured Party; Debtor shall procure and maintain insurance on the
Collateral for the full term of this security agreement, against the risks
of fire, theft and such other risks as Secured Party may require (including
the risk of collision in case any part of the Collateral is a motor vehicle)
by insurers satisfactory to Secured Party, and shall deliver to Secured
Party a fully paid policy or policies of insurance properly endorsed in
favor of Secured Party. The Debtor hereby irrevocably appoints the Secured
Party as its attorney-in-fact, to institute any action or proceeding
necessary or proper for the recovery and collection of any moneys that may
become due under the aforesaid policies of insurance and to discharge,
compound or release any claims and to execute, acknowledge and deliver any
instruments under said policies of insurance and further to endorse the name
of the Debtor to any check, draft or other instrument given in payment or in
liquidation of any claim under the said policies of insurance, and to
perform every other act and thing under said policies of insurance; Debtor
will permit Secured Party to inspect the Collateral at any time; Loss,
theft, damage, destruction or seizure of the Collateral shall not relieve
the Debtor from the payment of any indebtedness secured hereby; The
Collateral is not now and will not hereafter be so affixed to realty as to
become a part thereof or a fixture except as may be set forth on the
schedule annexed; The execution and delivery hereof, if Debtor is a
corporation, has been duly authorized by all necessary action of Debtor's
directors and shareholders; Secured Party is authorized to execute on
Debtor's behalf and file, at Debtor's cost, such financing statements and
other instruments or documents as may be necessary to perfect and protect
Secured Party's security interest; and In case of Debtor's default in
performing any warranty, covenant or undertaking hereunder, Secured Party
may (but shall not be obliged to) procure the performance thereof and add
the cost thereof, with interest, to the indebtedness secured hereby.
5. The occurrence of any of the following events or conditions shall, at
the option of Secured Party and without notice or demand, constitute an
event of default hereunder: Default in the due payment of any indebtedness
secured hereby; or Failure of Debtor to perform any covenant or undertaking
on Debtor's part herein or in any other agreement now existing or hereafter
made with Secured Party, or now or hereafter held by Secured Party; or
Breach of any warranty or falsity of any representation made by Debtor to
Secured Party; or Attachment or seizure of or levy upon the Collateral; or
institution of any proceeding by or against Debtor or Debtor's business
under any bankruptcy or insolvency statute, or Debtor's assignment for
benefit of creditors, or the appointment of a receiver for Debtor or the
Collateral, or the filing of a tax lien notice against Debtor by any taxing
authority; or Reasonable insecurity of Secured Party; or Loss, theft,
substantial damage, destruction, sale, encumbrance, concealment, removal, or
forfeiture of the Collateral or any material portion thereof; or an Event
of Default under the Financing Agreements.
6. Upon the occurrence of any event of default, Secured Party may declare
all Debtor's indebtedness secured hereby immediately due and payable, and
thereupon Secured Party shall have the right to take possession of the
Collateral and shall have all other rights and remedies of a Secured Party
under the Uniform Commercial Code. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party shall give Debtor reasonable notice of the
time and place of any public sale thereof or of the time after which any
private sale or other intended disposition thereof is to be made. Debtor
agrees that the requirements of reasonable notice shall be met if notice is
mailed to Debtor at the address of Debtor shown below not less than five (5)
days prior to the sale or other disposition. Secured Party may require
Debtor to assemble the Collateral and make it available to Secured Party at
a place to be designated by Secured Party which is reasonably convenient to
both parties. Secured Party is authorized to maintain, sell, or dispose of
the Collateral on the premises of the Debtor. Secured Party's rights and
remedies shall be cumulative and not alternative. Debtor agrees that
Secured Party may be the purchaser at any public or private sale.
7. If Debtor defaults hereunder or if any of the Secured Party's rights
hereunder are challenged or contested or if Debtor fails to make payment of
any of the Obligations when required of it, or fails to make any payment
required by this Agreement or commits any breach of this Agreement, or any
present or future supplement hereto, or any other agreement between Debtor
and Secured Party and/or upon termination of this agreement, the Debtor will
repay upon demand all Obligations then owing to Secured Party, whether due
or not, and in addition thereto upon the occurrence of any of the above
contingencies Secured Party is hereby given the unqualified right to retain
counsel for any of the following purposes: To protect its interest in this
Security Agreement; To protect, assemble, sell, or foreclose any of the
equipment chattels, inventory, instruments, documents, chattel paper,
general intangibles or other collateral now or hereafter pledged to it; To
collect any money which may become due under this or any other security
agreement or Obligation from Debtor, or any guarantor, or anyone else
against whom Secured Party may have any direct or contingent claim pursuant
to the terms hereunder or pursuant to the terms of any guarantee or
assignment or security agreement; and To otherwise seek in any manner to
protect, defend and enforce Secured Party's rights hereunder or elsewhere
contained, or collect any moneys or obligations due Secured Party from
Debtor. If Secured Party retains counsel for any of the purposes
aforementioned, Debtor agrees to pay reasonable counsel fees, such counsel
fees and all disbursements incurred by Secured Party including but not
limited to all costs, charges, premiums, fees of Court and Public Officers
and other disbursements and expenses incurred by Secured Party in connection
with the enforcement, proceeding, collection, sale or suit involving any of
the aforementioned purposes shall be paid by Debtor on demand; and the
amount thereof shall be added to the indebtedness secured by this Security
Agreement and shall be secured by the lien given Secured Party by this and
any other security instrument in the same manner as if said amount were a
part of the principal sum due from Debtor to Secured Party.
8. That the Debtor as further additional collateral security, by these
presents assigns to the Secured Party all of the Debtor's present and future
rights to any and all payments, checks and drafts, now made or hereafter to
be made by any insurance company pursuant to any contract of insurance or
indemnity now or hereafter in existence regardless of whether or not the
Secured Party is named as Secured Party and/or Mortgagee, and/or Loss Payee
in said present or future insurance policy or policies. The rights given to
the Secured Party hereunder are coupled with an interest and cannot be
revoked by the Debtor. Each present and future insurance carrier is hereby
authorized and directed to make all payments, drafts and checks payable to
Secured Party with the same force and effect as if the same were paid
directly to the Debtor.
9. That as further additional collateral security for the repayment of all
present and future obligations of Debtor to Secured Party, the Debtor agrees
that any security interest (including the security interest created
hereunder) and/or mortgage and/or pledge of any property, whether of like or
unlike nature, which Secured Party may now or hereafter have in, to and of
any of Debtor's present or future property or assets, of any type or nature,
shall at all times be and remain additional collateral for the prompt
fulfillment by Debtor of all its present and future obligations hereunder or
elsewhere contained.
a. The words "debts", "liabilities", "indebtedness", "obligations", or
"undertakings", whether singular or plural, whether capitalized or not
and whether used alone or collectively, whenever used herein shall be
deemed to include without limitation all loans, advances, debts,
liabilities, undertakings, obligations, guarantees, covenants and
duties owing by Debtor to Secured Party or Secured Party's subsidiaries
of every kind and description (whether or not evidenced by any note or
other instrument and whether or not for the payment of money), direct
or indirect, absolute or contingent, due or to become due, now existing
or hereafter arising, including without limitation any undertaking,
guarantee, debt, liability or obligation owing from Debtor to others
which Secured Party or Secured Party's subsidiaries may have obtained
by assignment or otherwise, and further including without limitation,
all interest, fees, charges, expenses and attorneys' fees chargeable to
Debtor's account or incurred by Secured Party or Secured Party's
subsidiaries in connection with Debtor's account whether provided for
herein or elsewhere or in any other agreement between Debtor and
Secured Party.
10. This Security Agreement shall be made, construed and enforced according
to the laws of the State of New York. Waiver of any default shall not
constitute waiver of any subsequent or other default. All rights of Secured
Party shall inure to the benefit of its successors and assigns, and all
obligations of Debtor shall bind his or its heirs, executors, personal
representatives, successors and assigns.
11. So long as Debtor is indebted to Secured Party, Debtor will make no
loans, advances and guarantees to or for anyone, nor shall Debtor purchase
the stock or assets of any other business, nor shall Debtor purchase any of
its own stock without first obtaining the written consent of Secured Party.
Furthermore, as long as Debtor is indebted to Secured Party, Debtor will not
terminate any security agreement that it may now have or hereafter enter
into with Secured Party. All security interests now or hereafter held by
Secured Party whether, of like or unlike nature, shall always remain as
collateral for all present and future obligations of Debtor to Secured Party
and Secured Party shall be under no obligation to terminate any of its liens
or security interests or surrender any collateral until all obligations of
Debtor to Secured Party are paid to Secured Party in full. In the event of
litigation over any matter connected with this Agreement or resulting from
transactions hereunder, the right to a trial by jury is hereby waived by
both parties.
12. Nothing herein contained shall be deemed to change, vacate, modify or
terminate any of the obligations of Debtor to Secured Party, or extend the
time of payment of any of said obligations wheresoever or howsoever said
obligations arise, or decrease or impair any rights or remedies Secured
Party may have under any other lien or security instrument or any collateral
therein mentioned.
13. This Security Agreement is executed and delivered by Debtor to Secured
Party in connection with the Financing Agreement. In the event of any
conflict between any term or provision of this Agreement and any term or
provision of the Financing Agreement, the term or provision of the Financing
Agreement shall control.
Dated: December 28, 1995 Debtor: XXXX INDUSTRIES, INC.
Attest: By:
Signature
Xxxx Xxxxxxx
Typed or Printed Name of Signatory
Secretary
Chief Executive Officer
Title of Signatory
Debtor's Mailing Address: 0 Xxxxxxx Xxxxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000
Secured Party: GIBRALTAR
CORPORATION OF AMERICA
By:
Signature
Typed or Printed Name of Signatory
Title of Signatory
Secured Party's Mailing Address:350 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
