EXHIBIT 10.4
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made as of the 21st day of
April, 2003, by and between INDUSTRIAL FABRICATION AND REPAIR, INC., a Tennessee
corporation, hereinafter called "Debtor", having offices at 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, and XXXXXX X. XXXX, an individual, hereinafter
called "Secured Party," having an address c/o 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000.
1. SECURITY INTEREST. For good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Debtor assigns and grants to the
Secured Party a security interest and lien in the Collateral (as hereinafter
defined) to secure the payment and the performance of the obligations evidenced
by those certain Promissory Notes of even date herewith in the aggregate
principal amount of $2,000,000 (the "Obligations").
2. COLLATERAL. A blanket security interest is granted in all of
Debtor's assets, including but not limited to those assets listed on Schedule A
attached hereto and incorporated herein by such reference, whether tangible or
intangible, now existing or hereafter acquired, including without limitation the
following collateral ("Collateral"):
A. Any and all accounts and other rights of Debtor to the
payment for goods sold or leased or for services rendered whether or not earned
by performance, including, without limitation, contract rights, book debts,
checks, notes, drafts, instruments, chattel paper, acceptances, and any and all
amounts due to Debtor or other forms of obligations and receivables, now
existing or hereafter arising;
B. Any and all of Debtors goods held as inventory, whether now
owned or hereinafter acquired, including without limitation, any and all such
goods held for sale or lease or being processed for sale or lease in Debtor's
business, as now or hereafter conducted, including all materials, goods and work
in process, finished goods and other tangible property held for sale or lease or
furnished or to be furnished under contracts of service or used or consumed in
Debtor's business, along with all documents (including documents of title)
covering such inventory;
C. Any and all of Debtor's goods held as equipment, whether
now owned or hereinafter acquired, including without limitation, all equipment
in which Debtor has any rights, and all accessions thereto and substitutions
therefor, and all equipment in which Debtor hereafter acquires any rights,
whether in possession of a seller, in transit from seller to Debtor, on Debtor's
premises or elsewhere, all contractual rights to purchase equipment, all
shipping invoices, bills of lading, and warehouse receipts covering such
equipment, and all proceeds of such Collateral, whether the equipment be affixed
to realty or not. It is expressly agreed that any equipment affixed to realty
shall remain personal property. Debtor agrees not to affix any equipment or
realty or allow any equipment to become accessions to goods without prior
written consent of the Secured Party, and in no event in such a way that removal
would damage the realty or goods;
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D. Any and all of Debtor's instruments and other writings of
any type which evidence a right to the payment of money, whether now owned or
hereafter acquired, including without limitation, negotiable instruments,
promissory notes, and documents of title owned or to be owned by Debtor,
certificates of deposit, capital stock, and all liens, security agreements,
leases and other contracts securing or otherwise relating to any of said
instruments or documents;
E. Any and all of Debtor's intangible property, whether now
owned or hereafter acquired, including without limitation, all patents,
trademarks, services marks, web site addresses, copyrights and exclusive
licenses, literary rights, contract rights and all documents, applications,
materials and other maters related thereto, all inventions, all manufacturing,
engineering, design and production plans, drawings, specifications, processes,
codes and systems, all trade names, goodwill and all chattel paper, documents
and instruments relating to such general intangibles;
F. Any and all substitutes and replacements for, accessions,
attachments and other additions to, tools, parts and equipment now or hereafter
added to or used in connection with, and all cash or non-cash proceeds and
products of, the Collateral (including, without limitation, all income, benefits
and property receivable, received or distributed which results from any of the
Collateral, such as dividends payable or distributable in cash, property or
stock; insurance distributions of any kind related to the Collateral, including,
without limitation, returned premiums, interest, premium and principal payments;
redemption proceeds and subscription rights; and shares or other proceeds of
conversions or splits of any securities in the Collateral); any and all causes
in action of Debtor, whether now existing or hereafter arising, relating
directly or indirectly to the Collateral (whether arising in contract, tort or
otherwise and whether or not currently in litigation); all certificates of
title, manufacturer's statements of origin, other documents, accounts and
chattel paper, whether now existing or hereafter arising directly or indirectly
from or related to the Collateral; all warranties, wrapping, packaging,
advertising and shipping materials used or to be used in connection with or
related to the Collateral; all of Debtor's books, records, data, plans, manuals,
computer software, computer tapes, computer systems, computer disks, computer
programs, source codes and object codes containing any information, pertaining
directly or indirectly to the Collateral and all rights of Debtor to retrieve
data and other information pertaining directly or indirectly to the Collateral
from third parties, whether now existing or hereafter arising; and all returned,
refused, stopped in transit, or repossessed Collateral;
G. The balance of every deposit account of Debtor maintained
with any bank or savings and loan and all money, instruments, securities,
documents, chattel paper, credits, claims, demands, income, and any other
property, rights and interests of Debtor and the proceeds of any thereof; and
H. All proceeds of Collateral of every kind and nature and in
whatever form, including, without limitation, both cash and non-cash proceeds
resulting or arising from the rendering of services by Debtor or the sale, lease
or other disposition by Debtor of the inventory or other Collateral.
SCHEDULE A represents a majority of the machinery and equipment
presently owned by
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Debtor, but is not meant to be an exhaustive list of all such Collateral
presently owned by Debtor nor in any way limit the granting by Debtor to the
Secured Party of the blanket security interest in all of its assets pursuant to
this Agreement..
3. DEBTOR'S REPRESENTATIONS AND WARRANTIES. Debtor hereby warrants and
agrees that:
A. Except for the security interest granted hereby, Debtor is
the owner of the Collateral free from any lien, security interest, or
encumbrance, except as imposed by law; and Debtor will defend the Collateral
against all claims and demands of all persons at any time claiming the same or
any interest therein.
B. No financing statement covering any of the above Collateral
or any proceeds thereof is on file in any public office; Debtor authorizes the
Secured Party to file, in jurisdictions where this authorization will be given
effect, a Financing Statement signed only by the Secured Party describing the
Collateral in the same manner as it is described herein; and from time to time
at the request of the Secured Party, execute one or more Financing Statements
and such other documents and Debtor shall pay the cost of filing or recording
same in all public offices deemed necessary or desirable by the Secured Party
and do such other acts and things, all as the Secured Party may request to
establish and maintain a valid security interest in the Collateral (free of all
other liens and claims whatsoever) to secure the payment of the Obligations,
including, without limitation, deposit with the Secured Party of any certificate
of title issuable with respect to any of the Collateral and notation thereon of
the security interest hereunder.
C. Debtor will not sell, transfer, lease or otherwise dispose
of any of the Collateral or any interest therein, or offer so to do, other than
in the ordinary course of Debtor's business without the prior written consent of
the Secured Party.
D. At the written request of the Secured Parity, Debtor will
at all times keep the Collateral insured against loss, damage, theft, and such
other risks as the Secured Party may reasonably require in such amounts and
companies and under such policies and in such form, and for such periods, as
shall be satisfactory to the Secured Party, and each such policy shall provide
that loss thereunder and proceeds payable thereunder shall be payable to the
Secured Party (and the Secured Party may apply any proceeds of such insurance
which may be received by the Secured Party toward payment of the Obligations,
whether or not due, in such order of application as the Secured Party may
determine) and each such policy shall provide for twenty (20) days written
minimum cancellation notice to the Secured Party; and each such policy shall, if
the Secured Party so request, be deposited with the Secured Party; and the
Secured Party may act as attorney for Debtor in obtaining, adjusting, settling,
and canceling such insurance and endorsing any drafts.
E. Debtor shall at all times keep the Collateral free from any
lien, security interest, or encumbrance and in good order and repair, ordinary
wear and tear excepted, and will not waste or destroy the Collateral or any part
thereof; and Debtor will not use other Collateral in violation of any statute or
ordinance; and the Secured Party may examine and inspect the Collateral upon
reasonable notice wherever located.
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F. Debtor will pay promptly when due all taxes and assessments
upon the Collateral or for its use of operation or upon this agreement or upon
any note or notes evidencing the Obligations, or any of them, other than those
contested by Debtor in good faith.
G. At his option, the Secured Party may, after giving Debtor
fifteen (15) days notice and opportunity to cure, discharge taxes, liens or
security interests or other encumbrances at any time levied or placed on the
Collateral, may pay for insurance on the Collateral, and may pay for the
maintenance and preservation of the Collateral. Debtor agrees to reimburse the
Secured Party on demand for any payment made, or any expense incurred, by the
Secured Party, pursuant to the foregoing authorization. Until default, Debtor
may have possession of the Collateral and use it in any lawful manner not
inconsistent with this agreement and not inconsistent with any policy of
insurance thereon.
H. Debtor has full power and authority to make this Agreement,
and all necessary consents and approvals or any persons, entities, governmental
or regulatory authorities and securities exchanges have been obtained to
effectuate the validity of this Agreement.
I. Debtor must promptly give Secured Party written notice of:
i. All material actions or suits (at law or in
equity) and of all investigations or proceedings by or before any court,
arbitrator or any governmental department, commission, board, bureau, agency or
other instrumentality, state, federal or foreign, affecting Debtor or the rights
or other properties of Debtor;
ii. Any adverse change in the condition (financial or
otherwise) of Debtor; and
iii. Any seizure or levy upon any part of any of
Debtor's properties under any process or by a receiver.
4. DEFAULT.
A. Debtor shall be in default under this Agreement upon the
happening of any of the following events or conditions and Debtor's failure to
cure the breach within thirty (30) days after notice;
i. failure or omission to pay when due any obligation
(or any installment thereof or interest thereon), or default in the payment or
performance of any obligation, covenant, agreement or liability contained or
referred to herein;
ii. any warranty, representation or statement made or
furnished to the Secured Party by or on behalf of any Debtor proves to have been
false in any material respect when made or furnished;
iii. loss, theft, substantial damage, or destruction
(unless covered by insurance), sale or encumbrance to or of any of the
Collateral, or the making of any levy, seizure or attachment thereof or thereon;
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iv. if the Debtor becomes insolvent or unable to pay
its debts as they mature or makes an assignment for the benefit of creditors, or
any proceeding is instituted by or against Debtor alleging that Debtor is
insolvent or unable to pay its debts as they mature;
v. appointment of a receiver for the Collateral or
any thereof; or
vi. a "Change of Control" of either the Debtor or
Eline Entertainment Group, Inc., a Nevada corporation ("Eline") which is the
parent company of the Debtor, unless the Secured Party shall have waived this
particular event of default in writing in advance to its occurrence. For the
purposes of this Agreement, the term "Change of Control" shall mean either (i)
at any time Eline does not directly or indirectly own at least 51% of the voting
securities of the Debtor, or (ii) at any time Yucatan Holding Company, Inc., a
Florida corporation and the principal shareholder of Eline, does not directly or
indirectly own at least 51% of the voting securities of Eline.
B. Upon the occurrence of any such default or at any time
thereafter, the Secured Party may, at his option, declare all obligations
secured hereby, or any of them (notwithstanding any provisions thereof),
immediately due and payable without demand or notice of any kind and the same
thereupon shall immediately become and be due and payable without demand or
notice (but with such adjustments, if any, with respect to interest or other
charges as may be provided for in the promissory note or other writing
evidencing such liability), and the Secured Party shall have and may exercise
from time to time any and all rights and remedies of a secured party under the
Uniform Commercial Code and any and all rights and remedies available to them
under any other applicable law; and upon request or demand of the Secured Party;
Debtor shall, at its expense, assemble the Collateral and make it available to
the Secured Party at a convenient place acceptable to the Secured Party; and
Debtor shall promptly pay all costs of the Secured Party of collection of any
and all the Obligations, and enforcement of rights hereunder, including
reasonable attorneys' fees and legal expenses and expenses of any repairs to any
of the Collateral and expenses of any repairs to any realty or to the property
to which any of the Collateral may be affixed or be a part. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Secured Party will give Debtor
reasonable notice of the time and place of any public sale thereof or of the
time after which any private sale or any other intended disposition thereof is
to be made. The requirements of reasonable notice shall be met if such notice is
mailed, postage prepaid, to any Debtor at the address of Debtor shown at the
beginning of this Agreement or at any other address shown on the records of the
Secured Party, at least ten (10) days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale, selling, or the
like, shall include the Secured Party's reasonable attorneys' fees and legal
expenses. Upon disposition of any Collateral after the occurrence of any default
hereunder or if the Secured Party feel insecure for any reason Debtor shall be
and remain liable for any deficiency; and the Secured Party shall account to
Debtor for any surplus, but the Secured Party shall have the right to apply all
or any part of such surplus (or to hold the same as a reserve against) against
all or any of the Obligations, whether or not they, or any of them, be then due,
and in such order of application as the Secured Party may from time to time
elect.
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5. Satisfaction of Obligations and Release of Security Interest. At
such time as the Obligations have been satisfied in full, and the Secured Party
shall have been reimbursed for any reasonable fees and expenses he incurred as
described in this Agreement, this security interest granted hereunder in the
Collateral shall be released by the Secured Party and he shall promptly file a
Financing Statement evidencing the satisfaction of the release of the
Collateral.
6. Miscellaneous.
A. The Secured Party's rights hereunder shall inure to the
benefit of his successors and assigns. In the event of any assignment or
transfer by the Secured Party of any of the Obligation or the Collateral, the
Secured Party thereafter shall be fully discharged from any responsibility with
respect to the Collateral so assigned or transferred, but the Secured Party
shall retain all rights and powers hereby given with respect to any of the
Obligation or the Collateral not so assigned or transferred. All
representations, warranties and agreements of Debtor shall be binding upon the
personal representatives, heirs, successors and assigns of Debtor.
B. No delay of the Secured Party in exercising any power or
right shall operate as a waiver thereof; nor shall any single or partial
exercise of any power or right preclude other or further exercise thereof or the
exercise of any other power or right. No waiver by the Secured Party of any
right hereunder or of any default by Debtor shall be binding upon the Secured
Party unless in writing, and no failure by the Secured Party to exercise any
power or right hereunder or waiver of any default by Debtor shall operate as a
waiver of any other or further exercise of such right or power or of any further
default. Each right, power and remedy of the Secured Party as provided for
herein or which shall now or hereafter exist at law or in equity or by statute
or otherwise, shall be cumulative and concurrent and shall be in addition to
every other such right, power or remedy. The exercise or beginning of the
exercise by the Secured Party of any one or more of such rights, powers or
remedies shall not preclude the simultaneous or later exercise by the Secured
Party of any or all other such rights, powers or remedies.
C. This Agreement shall constitute a continuing agreement,
applying to all future as well as existing transactions, whether or not of the
character contemplated at the date of this Agreement, and if all transactions
between the Secured Party and Debtor shall be closed at any time, shall be
equally applicable to any new transactions thereafter. Provisions of this
Agreement, unless by their terms exclusive, shall be in addition to other
agreements between the parties. Time is of the essence of this Agreement.
D. Unless the context indicates otherwise, definitions in the
Uniform Commercial Code ("UCC") apply to words and phrases in this Agreement; if
UCC definitions conflict, Article 9 definitions apply.
E. Notice shall be deemed reasonable if mailed postage prepaid
at least five (5) days before the related action (or if the UCC elsewhere
specifies a longer period, such longer period) to the address of Debtor given
above, or to such other address as any party may designate by written notice to
the other party. Each notice, request and demand shall be deemed given or made,
if sent by mail, upon the earlier of the date of receipt or five (5) days
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after deposit in the U.S. Mail, first class postage prepaid, or if sent by any
other means, upon delivery.
F. No provision hereof shall be modified or limited except by
a written agreement expressly referring hereto and to the provisions so modified
or limited and signed by Debtor and the Secured Party. The provisions of this
Agreement shall not be modified or limited by course of conduct or usage of
trade.
G. This Agreement has been delivered in the State of Tennessee
and shall be construed in accordance with the laws of that State. Wherever
possible each provision of this Agreement shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement. The invalidity or unenforceability of any provision to any
person or circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
H. This agreement shall become effective as of the date of
this agreement. All rights of the Secured Party hereunder shall inure to the
benefit of his successors and assigns; and all Obligations of Debtor shall bind
the heirs, executors, administrators, successors and assigns of Debtor.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
21st day of April, 2003.
Signed, sealed and delivered in the presence of:
INDUSTRIAL FABRICATION AND REPAIR, INC.,
____________________________ a Tennessee corporation, Debtor
Printed Name:_______________
By: /s/ Xxxxxx X. Xxxx
------------------
____________________________ Xxxxxx X. Xxxx, President
Printed Name:_______________
____________________________ /s/ Xxxxxx X. Xxxx
------------------
Printed Name:_______________ Xxxxxx X. Xxxx, Secured Party
____________________________
Printed Name:_______________
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SECURED PROMISSORY NOTE
$2,000,000 Knoxville, Tennessee
April 21, 2003
THE UNDERSIGNED, INDUSTRIAL FABRICATION AND REPAIR, INC., a Tennessee
corporation ("Maker") whose principal place of business is located at 0000
Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, hereby promises to pay to the order
of XXXXXX X. XXXX ("Holder"), at Holder's address c/o 0000 Xxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or such other place as Holder from time-to-time may
designate in writing, the principal sum of TWO MILLION DOLLARS ($2,000,000), or
such lesser amount as shall equal the aggregate unpaid principal amount of all
funds advanced the Maker by the Holder in accordance with the terms of this
Note, in lawful money of the United States of America in immediately available
funds, on the date and in the amounts stated herein and to pay interest on the
unpaid principal amount of this Note at such office, in like money and funds, on
the dates specified herein. The Maker may, from time to time, borrow, repay and
reborrow under the terms of this Note up to but not exceeding the principal
amount of this Note upon delivery to Holder of a request of such advance of the
proceeds of this Note.
The Maker hereby promises to pay interest on the unpaid principal
balance hereof at a rate seven percent (7%) per annum. Interest shall be accrued
daily on the unpaid principal balance hereof and shall be computed on the basis
of a 365-day year. Beginning on September 30, 2003, and thereafter payable
quarterly on each of December 31, March 31, June 30 and September 30 of each
year until the due date of this Note as set forth below, the Maker shall make a
payment of interest accrued to the date of such payment. Such payments shall be
applied first to interest accrued to the payment date and then to a reduction of
principal.
As collateral security for the payment of this Note, Maker has granted
to Holder a security interest and lien in certain Collateral pursuant to that
certain Security Agreement of even date herewith, a copy of which is attached
hereto as Exhibit A and incorporated herein by such reference (the "Security
Agreement"). Subject to the terms and conditions hereof, the principal amount of
this Note plus the accrued but unpaid interest thereon shall be due and payable
on or before January 1, 2008 and may be paid by Maker delivering to Holder,
cash, check, money order or wire transfer in the outstanding principal amount
hereof, plus accrued but unpaid interest thereon.
This Note may be prepaid in whole or in part at any time without
premium or penalty. Prepayments shall not effect or vary the duty of Maker to
pay all obligations when due, nor shall such prepayments effect or impair the
right of Holder to pursue remedies available to it hereunder.
For purposes hereof, the following shall constitute an event of default
("Event of Default"):
(a) the failure of Maker to pay the principal amount of, and accrued
but unpaid interest on, this Note within thirty (30) days after payment is due;
or
(b) the breach by Maker of any representation or warranty of Maker
contained in the Security Agreement or the breach by Maker of any of Maker's
obligations under the Security Agreement if Maker fails to cure any such breach
within ten (10) days after notice; or
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(c) the inaccuracy of any representation or warranty of Maker hereunder
or the breach by Maker of any of Maker's obligations under this Note if Maker
fails to cure the breach within ten (10) days after notice; or
(d) the insolvency of either Maker or the filing of a petition by or
against either Maker under Federal bankruptcy laws; or
(e) the occurrence of any event of default under the Security
Agreement.
Upon the occurrence of an Event of Default, the total amount of this
Note and all other sums which are (i) then due and unpaid or (ii) thereafter to
become due and payable (the "Default Amount") shall become immediately due and
payable without notice or demand. In such event, the Holder may forthwith give
written notice to Maker, whereupon Holder shall be entitled to the proceeds of
such Collateral pursuant to the terms of the Security Agreement. The proceeds of
any such Collateral shall be applied first, to the payment of all fees and
expenses incurred by Holder as a result of such Event of Default; second, to pay
the Default Amount to the extent not previously paid by Maker; and third to pay
any excess remaining thereafter to Maker.
It shall be the obligation of Maker to pay any and all documentary
stamp taxes and/or such other taxes that may become due and payable by reason of
the execution and delivery of this Note. Maker hereby waives any defense it may
have to the payment of this Note arising by reason of the failure to pay any
such taxes. Maker further indemnifies and holds Holder harmless from any and all
liabilities, damages and/or expenses, including reasonable attorney's fees,
arising our of Maker's failure to comply with the provisions of this paragraph.
Neither any failure of Holder or Maker to exercise nor any delay on the
part of the Holder or Maker in exercising any right, remedy, discretion or power
granted hereunder shall be or constitute a waiver thereof. The obligations
herein set forth shall be binding upon Maker and its legal representatives,
successors and assigns, and shall inure to the benefit of Holder and his legal
representatives, successors and assigns, and any subsequent holder of this Note.
Any notice to be given to Maker or Holder hereunder shall be given by certified
mail, return receipt requested, addressed to it at its address set forth herein.
Maker hereby agrees to pay any and all expenses incurred by Holder,
including reasonable attorneys' fees, in enforcing the provisions of this Note.
This Note is to be governed and interpreted solely in accordance with
the laws of the State of Tennessee and may not be modified orally.
INDUSTRIAL FABRICATION AND REPAIR, INC.
By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Director
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