EXHIBIT 10.22
SECURITY AGREEMENT
This Agreement is made this 28th day of March, 2003, by and between
International Dispensing Corporation, a Delaware corporation with its principal
place of business at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx
00000 ("Debtor") and Xxxxxxx Xxxxxx, an individual or his assigns (the "Secured
Party").
BACKGROUND
The Secured Party shall lend to the Debtor the aggregate principal amount
of One Hundred Fifty Thousand Dollars and 00/100 Dollars ($150,000.00) (the
"Loan"), as evidenced by a certain Secured Promissory Note (the "Note"), of even
date herewith. In order to induce Lender make the loan to be evidenced by the
Note, the Debtor has agreed to enter into this Security Agreement and a certain
Collateral Assignment of Patents and Trademarks and Security Agreement (the
"Assignment").
NOW, THEREFORE, in consideration of the premises and mutual covenants and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. THE SECURITY INTERESTS
(A) In order (i) to secure the due and punctual payment of the Note, (ii)
to secure the performance of all the obligations of the Debtor contained herein
and in the Note and the Assignment, and (iii) to secure the payment of all other
future advances to the Debtor by the Secured Party and all other indebtedness,
liabilities and obligations of the Debtor to the Secured Party of every kind and
description, direct, indirect or contingent, now or hereafter existing, due or
to become due (all of the foregoing hereinafter called the "Obligations"), the
Debtor hereby grants to the Secured Party a continuing security interest in the
following described fixtures and personal property (hereinafter collectively
called the "Collateral"):
All fixtures and all tangible and intangible personal property of the
Debtor, whether now owned or hereafter acquired by the Debtor, or in which the
Debtor may now have or hereafter acquire an interest, including without
limitation:
(a) all equipment (including all machinery, tools and furniture), all
inventory (including all merchandise, raw materials, work in process,
finished goods and supplies), motor vehicles and goods, whether now owned
or hereafter acquired by the Debtor, or in which the Debtor may now have or
hereafter acquire an interest (the "Tangible Collateral");
(b) All accounts, accounts receivable, rights to the payment of
money, payment intangibles, other receivables, contract rights, contracts,
leases, chattel paper,
electronic chattel paper, commercial tort claims, insurance refund claims
and other insurance claims and proceeds, and general intangibles of the
Debtor (including, without limitation, all tax refund claims, goodwill,
going concern value, patents, patent applications, blueprints, designs,
computer programs, software, service marks, trademarks, trademark
applications, inventions, trade names, customer lists, product lines and
research and development), whether now owned or hereafter acquired by the
Debtor, or in which the Debtor may now have or hereafter acquire an
interest, including, without limitation, all of the Debtor's rights under
all present and further authorizations, permits, licenses and franchises
heretofore or hereafter granted to the Debtor for the operation of the
Debtor's business (including within the definition of Collateral, to the
maximum extent permitted by law, all rights incident to appurtenant to such
licenses and permits, including, without limitation, the right to receive
all proceeds derived from or in connection with the sale, assignment or
transfer of such licenses and permits);
(c) All instruments, documents of title, letters of credit, rights to
proceeds of letters of credit, letter of credit rights, supporting
obligations of every kind and description, policies and certificates of
insurance, securities, securities entitlements, investment property,
partnership interests, membership interests in limited liability companies
(including, without limitation, all of the Debtors' right, title and
interest in and to all limited liability companies and partnerships and to
any successor business entities, and the right to receive all payments and
distributions due or to become due under all related partnership
agreements, operation agreements, and other constituent documents governing
or establishing such business entities), bank deposits, deposit accounts,
checking accounts, certificates of deposit and cash, whether now owned or
hereafter acquired by the Debtor, or in which the Debtor may now have or
hereafter acquire an interest;
(d) All accessions, additions or improvements to, and all proceeds
and products of, all of the foregoing, including proceeds of insurance
whether now owned or hereafter acquired by the Debtor, or in which the
Debtor may now have or hereafter acquire an interest; and
(e) All books, records, documents, computer tapes and discs relating
to all of the foregoing, whether now owned or hereafter acquired by the
Debtor, or in which the Debtor may now have or hereafter acquire an
interest.
(B) All Collateral consisting of accounts, contract rights, chattel paper,
general intangibles and other Collateral described in subparagraph (b) above
arising from the sale, delivery or provision of goods and/or services are
sometimes hereinafter collectively called the "Customer Receivables".
(C) The Debtor hereby acknowledges and agrees that the description of
Collateral contained in this Security Agreement covers, and is intended to
cover, all assets of the Debtor. For avoidance of doubt, it is expressly
understood and agreed that, to the extent that the Uniform Commercial Code
("UCC") is revised subsequent to the date hereof such that the definition of any
of the foregoing terms included in the description of Collateral is changed, the
parties agree
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that any property which is included in such changed definitions which would not
otherwise be included in the foregoing grant on the date hereof be included in
such grant immediately upon the effective date of such revision, it being the
intention of the parties hereto that the description of Collateral set forth
herein be construed to include the broadest possible range of property and
assets and all tangible and intangible personal property and fixtures of the
Debtor of every kind and description.
(D) The security interests granted pursuant to this Section 1 (the
"Security Interests") are granted as security only and shall not subject the
Secured Party to, or transfer or in any way affect or modify, any obligation or
liability of the Debtor under any of the Collateral or any transaction which
gave rise thereto.
(E) Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the New York Uniform
Commercial Code have the meanings therein stated.
2. CHATTEL PAPER
The Secured Party may at any time or from time to time, at its sole
discretion, require the Debtor to cause any chattel paper included in the
Customer Receivables to be delivered to the Secured Party or any agent or
representative designated by it, or to cause a legend referring to the Security
Interests to be placed on such chattel paper and upon any ledgers or other
records concerning the Customer Receivables.
3. FILING; FURTHER ASSURANCES
(A) The Debtor will, at its expense, execute, deliver, file and record (in
such manner and form as the Secured Party may require), or permit the Secured
Party to file and record, any financing statements, any carbon, photographic or
other reproduction of a financing statement or this Security Agreement (which
shall be sufficient as a financing statement hereunder), any specific
assignments or other paper that may be reasonably necessary or desirable, or
that the Secured Party may request, in order to create, preserve, perfect or
validate any Security Interest or to enable the Secured Party to exercise and
enforce its rights hereunder with respect to any of the Collateral, including
without limitation, continuation statements, amendments, and "in-lieu"
statements. Pursuant to Section 9-509(a) of the UCC, the Debtor hereby
authorizes the Secured Party to prepare and file without the Debtor's signature
any financing statements under Article 9 of the UCC which names the Debtor and
the Secured Party and pertains to the Security Interests. Additionally, the
Debtor hereby appoints the Secured Party as Debtor's attorney-in-fact, coupled
with an interest, to execute in the name and behalf of Debtor such additional
financing statements and related paper, if any, as the Secured Party may
require.
(B) If any Collateral is at any time in the possession or control of any
warehouseman, bailee or any of the Debtor's agents or processors, then the
Debtor shall notify the Secured Party of the same within a reasonable time after
becoming aware thereof and shall obtain a bailee letter acknowledged by the
bailee that notifies such person of the Secured Party's security interest in
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such Collateral and instructs such person to hold all such Collateral for the
Secured Party's account subject to the Secured Party's instructions.
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4. REPRESENTATIONS AND WARRANTIES OF DEBTOR
The Debtor hereby represents and warrants as follows:
(A) That the Debtor is, or to the extent that certain of the Collateral is
to be acquired after the date hereof, will be, the owner of the Collateral free
from any adverse lien, security interest or encumbrance; and
(B) No financing statement covering the Collateral is on file in any
public office, other than the financing statements filed pursuant to this
Security Agreement.
5. COVENANTS OF DEBTOR
The Debtor hereby covenants and agrees as follows:
(A) That the Debtor will defend the Collateral against all claims and
demands of all persons at any time claiming any interest therein;
(B) That the Debtor will provide the Secured Party with immediate written
notice of (i) any change in the chief executive officer of the Debtor or the
office where the Debtor maintains its books and records pertaining to the
Customer Receivables, (ii) the movement or location of Collateral (outside the
ordinary course of business) to or at any address other than as set forth above,
and (iii) the acquisition of a commercial tort claim, as defined in Article 9,
which writing shall briefly describe the claim and grant the Secured Party a
security interest therein and in the proceeds thereof;
(C) That the Debtor will promptly pay any and all taxes, assessments and
governmental charges upon the Collateral prior to the date penalties are
attached thereto, except to the extent that such taxes, assessments and charges
shall be contested in good faith by the Debtor;
(D) That the Debtor will immediately notify the Secured Party of any event
causing a substantial loss or diminution in the value of all or any material
part of the Collateral and the amount or an estimate of the amount of such loss
or diminution;
(E) That the Debtor will have and maintain insurance at all times with
respect to the Tangible Collateral against risks of fire (including so-called
extended coverage) and theft, and such other risks as the Secured Party may
reasonably require in writing, containing such terms, in such form, for such
periods and written by such companies as may be reasonably satisfactory to the
Secured Party, such insurance to be payable to the Secured Party and the Debtor
as their interests may appear. All policies of insurance shall provide for
thirty (30) days' written minimum cancellation notice to the Secured Party, and
Debtor shall furnish the Secured Party with certificates or other evidence
satisfactory to the Secured Party of compliance with the foregoing insurance
provisions as soon as practicable but in no event later than twenty (20) days
from the date hereof; and
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(F) That Debtor will not sell or offer to sell or otherwise assign,
transfer or dispose of the Collateral or any interest therein, without the
written consent of the Secured Party; provided, however, that the Debtor may
sell its inventory in the ordinary course of its business.
6. RECORDS RELATING TO COLLATERAL
The Debtor will keep its records concerning the Collateral, including the
Customer Receivables and all chattel paper included in the Customer Receivables,
at its location at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx
00000, or at such other place or places of business as the Secured Party may
approve in writing. The Debtor will hold and preserve such records and chattel
paper and will permit representatives of the Secured Party at any time during
normal business hours to examine and inspect the Collateral and to make
abstracts from such records and chattel paper, and will furnish to the Secured
Party such information and reports regarding the Collateral as the Secured Party
may from time to time reasonably request.
7. COLLECTIONS WITH RESPECT TO CUSTOMER RECEIVABLES.
The Debtor will, at its expense, and subject at all times to the Secured
Party's right to give directions and instructions:
(i) endeavor to collect or cause to be collected from customers indebted
on Customer Receivables, as and when due, any and all amounts, including
interest, owing under or on account of each Customer Receivables; and
(ii) take or cause to be taken such appropriate action to repossess goods,
the sale or rental of which gave rise to any Customer Receivables, or to enforce
any rights or liens under Customer Receivables, as the Debtor or the Secured
Party may deem proper, and in the name of the Debtor, or the Secured Party, as
the Secured Party may deem proper;
provided that (x) the Debtor will use its best judgment to protect the interests
of the Secured Party and (y) the Debtor shall not be required under this Section
7 to take any action which would be contrary to any applicable law or court
order. The Debtor shall, at the request of the Secured Party following the
occurrence of any Event of Default (as defined in Section 9 below), notify the
account debtors of the Security Interests of the Secured Party in any of the
Customer Receivables and the Secured Party may itself at any such time so notify
account debtors. The Secured Party shall have full power at any time after such
notice to collect, compromise, endorse, sell or otherwise deal with any or all
outstanding Customer Receivables or the proceeds thereof in the name of either
the Secured Party or the Debtor. In the event that, after notice to any account
debtors to pay the Secured Party, Debtor receives any payment on a Customer
Receivable, any such payments shall be held by Debtor in trust for Secured Party
and immediately turned over to Secured Party as aforesaid.
8. GENERAL AUTHORITY
The Debtor hereby irrevocably appoints the Secured Party the Debtor's true
and lawful attorney, with full power of substitution, in the name of the Debtor,
the Secured Party or
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otherwise, for the sole use and benefit of the Secured Party, but at the
Debtor's expense, to the extent permitted by law to exercise, at any time and
from time to time after any Event of Default has occurred, all or any of the
following powers with respect to all or any of the Collateral (which power shall
be in addition and supplemental to any powers, rights and remedies of the
Secured Party described herein):
(i) to demand, xxx for, collect, receive and give acquittance for any and
all monies due or to become due upon or by virtue thereof;
(ii) to receive, take, endorse, assign and deliver any and all checks,
notes, drafts, documents and other negotiable and non-negotiable instruments and
chattel paper taken or received by the Secured Party in connection therewith;
(iii) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto;
(iv) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof or the related goods securing the Customer
Receivables, as fully and effectually as if the Secured Party were the absolute
owner thereof;
(v) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto; and
(vi) to discharge any taxes, liens, security interests or other
encumbrances at any time placed thereon;
provided that the Secured Party shall give the Debtor not less than twenty (20)
days' prior written notice of the time and place of any sale or other intended
disposition of any of the Collateral, except any Collateral which is perishable
or threatens to decline speedily in value or its of the type customarily sold on
a recognized market. The Secured Party and the Debtor agree that such notice
constitutes "reasonable notification" within the meaning of Section 9-611 of the
UCC.
9. EVENTS OF DEFAULT.
The Debtor shall be in default under this Security Agreement upon the
occurrence of any one of the following events (herein referred to as an "Event
of Default"):
(i) default by the Debtor in the due observance or performance of any
covenant or agreement contained herein or breach by the Debtor of any
representation or warranty herein contained;
(ii) any default in the payment when due of the principal of, or interest
on, any indebtedness of the Debtor or the Debtor to Secured Party, including,
without limitation, indebtedness evidenced by the Note;
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(iii) the occurrence of any Event of Default under any agreement(s) now or
hereafter securing the Note; or
(iv) default by the Debtor in the due observance or performance of any
obligation to its senior secured lender.
10. REMEDIES UPON EVENT OF DEFAULT
If any Event of Default shall have occurred, the Secured Party may exercise
all the rights and remedies of a Secured Party under the UCC (whether or not the
UCC is in effect in the jurisdiction where such rights and remedies are
exercised) and, in addition, the Secured Party may, without being required to
give any notice, except as herein provided or as may be required by mandatory
provisions of law, (i) apply the cash, if any, then held by it as Collateral in
the manner specified in Section 12, and (ii) if there shall be no such cash or
if such cash shall be insufficient to pay all the Obligations in full, sell the
Collateral, or any part thereof, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery, and at such price or prices as the Secured Party may deem
satisfactory. The Secured Party may require the Debtor to assemble all or any
part of the Collateral and make it available to the Secured Party at a place to
be designated by the Secured Party which is reasonably convenient. Any holder of
an Obligation may be the purchaser of any or all of the Collateral so sold at
any public sale (or, if the Collateral is of a type customarily sold in a
recognized market or is of a type which is the subject of widely distributed
standard price quotations, at any private sale) and thereafter hold the same,
absolutely, free from any right or claim of whatsoever kind. Upon any such sale
the Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the Collateral so sold absolutely, free from any claim or right of
whatsoever kind, including any equity or right of redemption of the Debtor.
Debtor to the extent permitted by law hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any rule of law or
statute now existing or hereafter adopted. At any such sale the Collateral may
be sold in one lot as an entirety or in separate parcels, as the Secured Party
may determine. The Secured Party shall not be obligated to make such sale
pursuant to any such notice. The Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Secured Party
until the selling price is paid by the purchaser thereof, but the Secured Party
shall not incur any liability in case of the failure of such purchaser to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice. The Secured Party, instead of
exercising the power of sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to foreclose the Security Interests and sell the
Collateral, or any portion thereof, under a judgment or decree of a court or
courts of competent jurisdiction. Notwithstanding anything to the contrary
stated herein, prior to exercising any other remedy available to it hereunder,
the Lender shall first liquidate all or substantially all of the Debtor's
beverage carafe inventory of finished goods and apply such proceeds in the
manner provided in Section 12.
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11. RIGHT OF SECURED PARTY TO USE AND OPERATE TANGIBLE COLLATERAL, ETC.
Upon the occurrence of an Event of Default, to the extent permitted by law,
the Secured Party shall have the right and power to take possession of all or
any part of the Tangible Collateral, and to exclude the Debtor and all persons
claiming under the Debtor wholly or partly therefrom, and thereafter to hold,
store, and/or use, operate, manage and control the same. Upon any such taking of
possession, the Secured Party may, from time to time, at the expense of the
Debtor, make all such repairs, replacements, alterations, additions and
improvements to and of the Tangible Collateral as the Secured Party may deem
proper. In such case, the Secured Party shall have the right to manage and
control the Tangible Collateral and to carry on the business and to exercise all
rights and powers of the Debtor in respect thereto as the Secured Party shall
deem best, including the right to enter into any and all such agreements with
respect to the leasing and/or operation of the Tangible Collateral and any part
thereof as the Secured Party may see fit; and the Secured Party shall be
entitled to collect and receive all rents, issues, profits, fees, revenues and
other income of the same and every part thereof. Such rents, issues, profits,
fees, revenues and other income shall be applied to pay the expenses of holding
and operating the Tangible Collateral and of conducting the business thereof,
and of all maintenance, repairs, replacements, alterations, additions and
improvements, and to make all payments which the Secured Party may be required
or may elect to make, if any, for taxes, assessments, insurance and other
charges upon the Tangible Collateral or any part thereof, and all other payments
which the Secured Party may be required or authorized to make under any
provision of this Security Agreement (including legal costs and attorney's
fees). The remainder of such rents, issues, profits, fees, revenues and other
income shall be applied to the payment of the Obligations in such order or
priority as the Secured Party shall determine (subject to the provisions of
Section 12 hereof) and, unless otherwise provided by law or by a court of
competent jurisdiction, any surplus shall be paid over to the Debtor.
12. APPLICATION OF COLLATERAL AND PROCEEDS
The proceeds of any sale of, or other realization upon, all or any part of
the Collateral shall be applied in the following order of priorities:
(i) first, to pay the expenses of such sale or other realization,
including reasonable commission to the Secured Party and its agent and counsel,
and all expenses, liabilities and advances incurred or made by the Secured Party
in connection therewith, and any other unreimbursed expenses of which the
Secured Party is to be reimbursed pursuant to Section 13 as the Secured Party in
its sole discretion shall determine;
(ii) second, to the payment of the Obligations in such other manner as the
Secured Party, in its sole discretion, shall determine; and
(iii) finally, to pay to the Debtor, or its successors or assigns, or to a
court of competent jurisdiction, or as directed by a court of competent
jurisdiction, any surplus then remaining from such proceeds.
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13. EXPENSES; SECURED PARTY'S LIEN
The Debtor will forthwith upon demand pay to the Secured Party:
(i) the amount of any taxes which the Secured Party may have been
required to pay by reason of the Security Interests (including any applicable
transfer taxes) or to free any of the Collateral from any lien thereon; and
(ii) the amount of any and all reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of its counsel and of any agents
not regularly in its employ, which the Secured Party may incur in connection
with (x) the preparation and administration of this Security Agreement, (y) the
collection, sale or total disposition of any of the Collateral, (z) the exercise
by the Secured Party of any of the powers conferred upon it hereunder, or (aa)
any default on the Debtor's part hereunder.
14. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL
Upon the repayment and performance in full of all the Obligations, the
Security Interests shall terminate and all rights to the Collateral shall revert
to the Debtor. Upon any such termination of the Security Interests or release of
Collateral, the Secured Party will, at the Debtor's expense to the extent
permitted by law, execute and deliver to the Debtor such documents as the Debtor
shall reasonably request to evidence the termination of the Security Interests
or the release of such Collateral, as the same may be.
15. WAIVERS, NON-EXCLUSIVE REMEDIES
No failure on the part of the Secured Party to exercise, and no delay in
exercising, and no course of dealing with respect to, any right, power or remedy
under this Security Agreement shall operate as a waiver therefor; nor shall any
single or partial exercise by the Secured Party of any right, power or remedy
under this Security Agreement preclude any other right, power or remedy. The
remedies in this Security Agreement are cumulative and are not exclusive of any
other remedies provided by law. THE DEBTOR ALSO WAIVES TRIAL BY JURY IN ANY
ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT.
16. AMENDMENT
Neither this Security Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally but only by a statement in writing
signed by the party against which enforcement of the change, waiver, discharge
or termination is sought.
17 GOVERNING LAW
The validity and interpretation of this Agreement and the rights and
obligations of the parties shall be governed by the laws of the State of New
York.
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18. SEPARABILITY
If any provision hereof is invalid or unenforceable in any jurisdiction,
the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Secured Party.
19. HEADINGS
The headings in this Security Agreement are for the purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WEREOF, this Security Agreement has been executed by the parties
hereto all as of the day and year first above written.
INTERNATIONAL DISPENSING
CORPORATION
Xxxxxxxxx Xxxxxxxx By: Xxxx Xxxxxxxx
Witness Title: President CEO
/s/ Xxxxxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
____________________________ /s/ Xxxxxxx Xxxxxx
Witness Xxxxxxx Xxxxxx
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