EXHIBIT 10.98
SECOND AMENDED AND RESTATED
SECURITY AND PLEDGE AGREEMENT
AGREEMENT, made this -- day of March 2004, effective the 2nd day of
January 2004, by and between THE MAJOR AUTOMOTIVE COMPANIES, INC. (F/K/A
FIDELITY HOLDINGS, INC.), a Nevada corporation, having an office at 00-00
Xxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 (the "Company") and M&K
EQUITIES LTD., a New York corporation, having an address at 000 Xxxxxxxxx Xxxx
Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("M&K").
WITNESSETH:
WHEREAS, the Company has issued to M&K a certain second amended and
restated note of even date herewith in the principal amount of $1,270,000 (the
"Note") in consideration of a $1,400,000 loan from M&K on December 11, 2000 (the
"Loan"); and
WHEREAS, in order to induce M&K to make the Loan, the Company has
agreed to xxxxx x xxxx on and security interest in all of its assets as
collateral security for the due payment and performance of all indebtedness,
liabilities and obligations under the Note; and
WHEREAS, except as to those terms otherwise defined in this Security
Agreement, all capitalized terms used herein shall have the respective meanings
ascribed to them in the Note.
NOW, THEREFORE, in consideration of the foregoing, the Company hereby
agrees with M&K as follows:
1. Security Interest.
To secure the due payment and performance of all indebtedness and other
liabilities and obligations, whether now existing or hereafter arising, of the
Company to M&K under, arising out of or in any way connected with the Note, and
all instruments, agreements and documents executed, issued and delivered
pursuant thereto, including, without limitation, this Security Agreement, all
hereinafter referred to collectively as the "Obligations," the Company hereby
assigns, mortgages, pledges, hypothecates, transfers and sets over to M&K and
grants to M&K a lien (subject to the provisions of Section 2 below) upon and
security interest in all assets of the Company set forth, referred to, or listed
on, Schedule "I" annexed thereto and made a part hereof (all herein after
referred to as the "Collateral").
2. Company's Title; Liens and Encumbrances.
The Company represents and warrants that it is, or, to the extent that
this Security Agreement states that the Collateral is to be acquired after the
date hereof, will be, the owner of the Collateral, having good and marketable
title thereto, free from any and all liens, security interests, encumbrances and
claims, except as set forth on Schedule A hereto.
3. Location of Collateral and Records.
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The Company represents and warrants that it has no place of business,
offices where the Company's books of account and records are kept, or places
where the Collateral is used, stored or located, except as set forth on Schedule
II annexed hereto, and covenants that the Company will promptly notify M&K of
any change in the foregoing representation. The Company shall at all times
maintain its records as to the Collateral at its chief place of business at the
address referred to on Schedule II and at none other.
4. Perfection of Security Interest.
The Company will join with M&K in executing one or more financing
statements pursuant to the Uniform Commercial Code or other notices appropriate
under applicable law in form satisfactory to M&K and will pay all filing or
recordings costs with respect thereto, and all costs of filing or recording this
Security Agreement or any other instrument, agreement or document executed and
delivered pursuant hereto or to the Note (including the costs of all Federal,
state or local mortgage, documentary, stamp or other taxes), in each case, in
all public offices where filing or recording is deemed by M&K to be necessary or
desirable. The Company hereby authorizes M&K to take all action (including,
without limitation, the filing of any Uniform Commercial Code Financing
Statements or amendments thereto without the signature of the Company) which M&K
may deem necessary or desirable to perfect or otherwise protect the liens and
security interests created hereunder and to obtain the benefits of this Security
Agreement.
5. General Covenants.
The Company shall:
a. furnish M&K from time to time at M&K's written request written
statements and schedules further identifying and describing the Collateral in
such detail as M&K may reasonably require;
b. advise M&K promptly, in sufficient detail, of any substantial
change in the Collateral, and of the occurrence of any event which would have an
adverse effect on the value of the Collateral or on M&K's security interest
therein; and
c. promptly execute and deliver to M&K such further deeds,
mortgages, assignments, security agreements, financing statements or other
instruments, documents, certificates and assurances and take such further action
as M&K may from time to time in its reasonable discretion deem necessary to
perfect, protect or enforce its security interest in the Collateral or otherwise
to effectuate the intent of this Security Agreement and the Note.
d. The Company will not assign, transfer, sell, lease or
otherwise dispose of or abandon any Collateral, nor will The Company suffer or
permit any of the same to occur with respect to any Collateral, without prior
written notice to and consent of Secured Party, except for the sale or lease
from time to time in the ordinary course of business of such items of the
Collateral as may constitute inventory;
e. The Company will use the Collateral for lawful purposes only,
with all reasonable care and caution and in conformity with all applicable laws,
ordinances and regulations;
f. The Company will pay M&K for any reasonable and necessary
sums, costs, and expenses which M&K may pay or incur pursuant to the provisions
of this Agreement or in negotiating, executing, perfecting, amending, defending,
protecting or enforcing this Agreement or the security interest granted herein
or in enforcing payment of the Obligations or otherwise in connection with the
provisions hereof, including but not limited to court costs, collection charges,
travel expenses, and reasonable attorneys fees,
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all of which, together with interest at the highest rate then payable on any of
the Obligations, shall be part of the Obligations and be payable on demand;
g. in its discretion, M&K may, at any time and from time to time,
with prior written notice to the Company, assign, transfer or deliver to any
transferee of any Obligations, any Collateral, whereupon M&K shall be fully
discharged from all responsibility and the transferee shall be vested with all
powers and rights of M&K hereunder with respect thereto, but M&K shall retain
all rights and powers with respect to any Collateral not assigned, transferred
or delivered;
h. The Company has made, and will continue to make, payment or
deposit, or otherwise has provided and will provide for the payment, when due,
of all taxes, assessments or contributions or other public or private charges
which have been or may be levied or assessed against the Company, whether with
respect to any Collateral, to any wages or salaries paid by the Company, or
otherwise, and will deliver to Secured Party, on demand, certificates or other
evidence satisfactory to M&K attesting thereto, provided, however, that the
Company shall not be required to pay and discharge any such tax, assessment,
charge, levy or claim so long as the validity thereof shall be contested in good
faith by appropriate proceedings and the Company shall set aside on its books
adequate reserves with respect to any such tax, assessment, charge, levy or
claim so contested;
i. Upon prior written notice to the Company, M&K shall at all
times have free access to and right of inspection of the Collateral and any
records pertaining thereto (and the right to make extracts from and to receive
from the Company originals or true copies of such records and any papers and
instruments relating to any Collateral upon request therefor); and
j. The Company shall not incur any indebtedness senior to that
evidenced by the Note and the Company shall not increase the amount of any
Senior Indebtedness (as such term is defined in the Note), in either event
without the prior written consent of M& K; provided, however, that the foregoing
shall not require the approval of M&K for the Company to incur any "floor plan"
or similar financing, which shall be expressly permitted to be incurred by the
Company.
6. Fixtures.
It is the intent of the Company and M&K that none of the Collateral is
or shall be fixtures, as that term is used or defined in Article 9 of the
Uniform Commercial Code, and the Company represents and warrants that it has not
made and is not bound by any lease or other agreement which is inconsistent with
such intent. Nevertheless, if the Collateral or any part thereof is or is to
become attached or affixed to any real estate, the Company will, upon request by
M&K, use its best efforts to cause all persons having an interest in the real
estate to which the Collateral is attached or affixed to furnish M&K with a
disclaimer or subordination, in form satisfactory to M&K, of their interests in
the Collateral, and the Company, upon request by M&K, will furnish M&K with the
names and addresses of the record owners of, and all other persons having
interest in, and a general description of, such real estate.
7. Rights and Remedies on Default. (a) In the event of the occurrence of
any Event of Default as defined or specified in the Note, subject to the rights
of the holders of the Senior Indebtedness (as such term is defined under the
Note), M&K shall at any time thereafter have the right, with advance notice to
the Company, as to any or all of the Collateral, by any available judicial
procedure, to take possession of the Collateral, and, generally, to exercise any
and all rights afforded to a secured party under the Uniform Commercial Code or
other applicable law.
(b) M&K may apply the cash proceeds actually received from any
sale or other disposition of Collateral to the reasonable expenses of retaking,
holding, preparing for sale, selling, leasing and the like,
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to reasonable attorneys' fees and all legal, travel and other expenses which may
be incurred by M&K in attempting to collect the Obligations or enforce this
Agreement or in the prosecution or defense of any action or proceeding related
to the subject matter of this Agreement; and then to the Obligations first to
accrued and unpaid interest and the unpaid principal under the Note; and the
Company shall remain liable and will pay M&K on demand any deficiency remaining
after the application of such cash proceeds, together with interest thereon at
the highest rate then payable on the Obligations, and the balance of any
expenses unpaid, with any surplus to be paid to the Company, subject to any duty
of M&K imposed by law to the holder of any subordinate security interest in the
Collateral known to Secured Party.
8. Costs and Expenses.
Any and all reasonable fees, costs and expenses, of whatever kind or
nature, in connection with the filing or recording of financing statements and
other documents (including all taxes in connection therewith) in public offices,
the payment or discharge of any taxes, insurance premiums, encumbrances or
otherwise protecting, maintaining or preserving the Collateral, or the
enforcing, foreclosing, collecting, retaking, holding, storing, processing,
selling or otherwise realizing upon the Collateral and M&K's security interest
therein, whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions or proceedings arising out of or related to the
transactions to which this Security Agreement relates, shall be added to the
principal amount of the Obligations and shall bear interest at the rate
prescribed in the Note.
9. Power of Attorney.
In the event of the occurrence of an Event of Default under the Note,
the Company hereby authorizes M&K and does hereby make, constitute and appoint
M&K, and any agent of M&K with full power of substitution, as the Company's true
and lawful attorney-in-fact, with power, in its own name or in the name of the
Company, to endorse any note, checks, drafts, money orders or other instruments
of payment (including payments payable under or in respect of any policy of
insurance) in respect of the Collateral that may come into possession of the
Company; to sign and endorse any invoice, freight or express xxxx, xxxx of
lading, storage or warehouse receipts, drafts against the Company, assignments,
verifications and notices in connection with accounts, and other documents
relating to Collateral; to pay or discharge taxes, liens, security interests or
other encumbrances at any time levied or placed on or threatened against the
Collateral; to demand, collect, receipt for, compromise, settle and xxx for
monies due in respect of the Collateral; and, generally, to do, at the Company's
option and at the Company's expense, at any time, or from time to time, all acts
and things which M&K deems reasonably necessary to protect, preserve and realize
upon the Collateral and M&K's security interest therein in order to effect the
intent of this Security Agreement and the Note all as fully and effectually as
the Company might or could do; and the Company hereby ratifies all that said
attorney shall lawfully do or cause to be done by virtue hereof. This power of
attorney shall be irrevocable for the term of this Security Agreement and
thereafter as long as any of the Obligations shall be outstanding.
10. Notices.
Any notices required or permitted to be sent hereunder shall be
delivered personally or by an overnight courier service or mailed via certified
mail, return receipt requested to a party at the address set forth at the
beginning of this Security Agreement or such other address as any party hereto
designates by written notice to the other, and shall be deemed to have been
given upon delivery, if delivered personally or by overnight courier service,
with receipt acknowledged or three business days after mailing, if mailed in
accordance with the foregoing provisions.
11. Miscellaneous.
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a. Beyond the safe custody thereof, M&K shall have no duty as to
the collection of any Collateral in its possession or control or in the
possession or control of any agent or nominee of M&K, or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto.
b. No course of dealing between the Company and M&K, nor any
failure to exercise, nor any delay in exercising, on the part of M&K, any right,
power or privilege hereunder or under the Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
c. All of M&K's rights and remedies with respect to the
Collateral, whether established hereby, by the Note or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
d. The provisions of this Security Agreement are severable, and
if any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Security Agreement in any jurisdiction.
e. This Security Agreement is subject to modification only by a
writing signed by the parties.
f. The benefits and burdens of this Security Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties; provided however, that the rights and obligations of the
Company under this Security Agreement shall not be assigned or delegated without
the prior written consent of M&K, and any purported assignment or delegation
without such consent shall be void.
12. Term of Agreement.
The term of this Security Agreement shall commence on the date hereof
and this Security Agreement shall continue in full force and effect, and be
binding upon the Company, until all of the Obligations have been fully paid and
performed and such payment and performance has been acknowledged in writing by
M&K, whereupon this Security Agreement shall terminate.
13. Governing Law.
This Security Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York. The parties hereby: (i) in
any legal proceeding brought in connection with this Agreement or the
transactions contemplated hereby, irrevocably submit to the nonexclusive in
personam jurisdiction of (A) any state or Federal court of competent
jurisdiction sitting in the State of New York, County of New York or (B) in the
event that any party is a defendant in any legal proceeding in which it seeks to
join the other as a third party defendant, then, any state or Federal court in
which such proceeding has properly been brought, and consent to suit therein;
and (ii) waive any objection they or it may now or hereafter have to the venue
of such proceeding in any such court or that such proceeding was brought in an
inconvenient court.
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14. WAIVER OF TRIAL BY JURY, ETC. (a) THE COMPANY HEREBY IRREVOCABLY
WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (I) TRIAL BY JURY,
(II) ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH
RESPECTIVE JURISDICTIONS AND (III) THE RIGHT TO INTERPOSE ANY SETOFF,
NON-COMPULSORY COUNTERCLAIM OR CROSS-CLAIM.
(b) THE COMPANY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS
ADDRESS DETERMINED PURSUANT TO SECTION 10 HEREOF. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF M&K TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
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IN WITNESS WHEREOF, the parties have caused these presents to be duly
executed and delivered the day and year first above written.
THE MAJOR AUTOMOTIVE COMPANIES, INC.
By:
Xxxxx Xxxxxxx
President, Chief Executive Officer and
Acting Chief Financial Officer
M&K EQUITIES LIMITED
By:
Xxxx Xxxxxx, President
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