EXHIBIT 10.17
GENERAL SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of April 5, 2004, between Tarpon
Industries, Inc., a Michigan corporation with offices at 0000 Xxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000 (the "Debtor"), and Xxxxxx Xxxxxx & Co., LLC, with offices
at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as representative of the Note
Holders (the "Secured Party Representative");
W I T N E S S E T H :
WHEREAS, the Debtor and certain investors (the "Note Holders") are
parties to 8.0% promissory notes issued by the Debtor in the aggregate principal
amount of up to $2,000,000 (herein, as at any time amended, extended, restated,
renewed or modified, the "Notes"); and
WHEREAS, it is a condition to the willingness of the Note Holders to
accept the Notes and make the loan evidenced thereby that the Debtor enter into
this Agreement and grant to the Secured Party Representative the security
interest provided for herein for the benefit of the Note Holders;
NOW, THEREFORE, FOR VALUE RECEIVED, IT IS AGREED:
Section 1. Terms. Unless otherwise defined herein, capitalized terms
used in this Agreement shall have the meaning specified therefor in the Note. As
used herein the following terms shall have the meanings specified and shall
include in the singular number the plural and in the plural number the singular:
"Assigned Agreements" shall mean all contracts and agreements of the
Debtor.
"Collateral" means all of the Debtor's right, title and interest in
and under or arising out of each and all of the following:
All personal property and fixtures of the Debtor of any type
or description, wherever located and now existing or hereafter
arising or acquired, including but not limited to the following:
(i) all of the Debtor's goods including, without limitation:
(a) all inventory, including without limitation,
equipment held for lease, whether raw materials, in
process or finished, all material or equipment usable in
processing the same and all documents of title covering
any inventory (all of the foregoing, "Inventory"),
including without limitation that located at the
locations listed on Schedule 1 annexed hereto;
(b) all equipment (the "Equipment") employed in
connection with the Debtor's business, together with all
present and future additions,
attachments and accessions thereto and all substitutions
therefor and replacements thereof, including without
limitation that located at the locations listed on
Schedule 1 annexed hereto;
(ii) all of the Debtor's present and future accounts,
accounts receivable, general intangibles, contracts and
contract rights (herein sometimes referred to as
"Receivables"), including but not limited to the
Debtor's rights (including rights to payment) under all
Assigned Agreements, together with
(a) all claims, rights, powers or privileges and
remedies of the Debtor relating thereto or arising in
connection therewith including, without limitation, all
rights of the Debtor to make determinations, to exercise
any election (including, but not limited to, election of
remedies) or option or to give or receive any notice,
consent, waiver or approval, together with full power
and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or any property which
is the subject of the Assigned Agreements, to enforce or
execute any checks, or other instruments or orders, to
file any claims and to take any action which (in the
reasonable opinion of the Secured Party Representative)
may be necessary or advisable in connection with any of
the foregoing,
(b) all liens, security, guaranties, endorsements,
warranties and indemnities and all insurance and claims
for insurance relating thereto or arising in connection
therewith,
(c) all rights to property forming the subject matter of
the Receivables including, without limitation, rights to
stoppage in transit and rights to returned or
repossessed property,
(d) all writings relating thereto or arising in
connection therewith including without limitation, all
notes, contracts, security agreements, guaranties,
chattel paper and other evidence of indebtedness or
security, all powers-of-attorney, all books, records,
ledger cards and invoices, all credit information,
reports or memoranda and all evidence of filings or
registrations relating thereto,
(e) all catalogs, computer and automatic machinery
software and programs, and the like pertaining to
operations by the Debtor in, on or about any of its
plants or warehouses, all sales data and other
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information relating to sales or service of products now
or hereafter manufactured on or about any of its plants,
and all accounting information pertaining to operations
in, on or about any of its plants, and all media in
which or on which any of the information or knowledge or
data is stored or contained, and all computer programs
used for the compilation or printout of such
information, knowledge, records or data, and
(f) all accounts, contract rights, general intangibles
and other property rights of any nature whatsoever
arising out of or in connection with the foregoing,
including without limitation, payments due and to become
due, whether as repayments, reimbursements, contractual
obligations, indemnities, damages or otherwise;
(iii) patents, patent applications, copyrights and intellectual
property of all description;
(iv) all other personal property of the Debtor of any nature
whatsoever, including, without limitation, all accounts, bank
accounts, deposits, credit balances, contract rights,
inventory, general intangibles, goods, equipment, instruments,
chattel paper, machinery, furniture, furnishings, fixtures,
tools, supplies, appliances, plans and drawings, together with
all customer and supplier lists and records of the business,
and all property from time to time described in any financing
statement (UCC-1) signed by the Debtor naming the Secured
Party Representative as secured party; and
(v) all additions, accessions, replacements, substitutions or
improvements and all products and proceeds including, without
limitation, proceeds of insurance, of any and all of the
Collateral described in clauses (i) through (iii) above.
"Instrument" shall have the meaning specified in Article 3 of the
Uniform Commercial Code, as in effect from time to time in the State of New York
and shall also include any other writing which evidences a right to the payment
of money and is not itself a security agreement or lease and is of a type which
is in the ordinary course of business transferred by delivery with any necessary
endorsement or assignment.
"Lien" means any mortgage, pledge, hypothecation, assignment,
security interest, deposit arrangement, encumbrance (including any easement,
right of way, zoning restriction and the like), lien (statutory or other) or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease involving substantially the same
economic effect as any of the
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foregoing and the filing of any financing statement under the Uniform Commercial
Code or comparable law of any jurisdiction).
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with generally
accepted accounting principles shall have been set aside on its
books;
(b) Liens of carriers, warehousemen, mechanics, materialmen
and landlords incurred in the ordinary course of business for sums
not overdue or being contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set
aside on its books;
(c) Liens (other than Liens arising under the Employee
Retirement Income Security Act of 1974, as amended, or Section
412(n) of the Internal Revenue Code of 1986, as amended) incurred in
the ordinary course of business in connection with workers'
compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed
money) entered into in the ordinary course of business or to secure
obligations on surety or appeal bonds;
(d) judgment Liens in existence less than 60 days after the
entry thereof or with respect to which execution has been stayed;
(e) ground leases in respect of real property on which
facilities owned or leased by the Debtor or any of its subsidiaries
are located;
(f) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances
not interfering in any material respect with the business of the
Debtor and its subsidiaries taken as a whole;
(g) any interest or title of a lessor secured by a lessor's
interest under any lease of real property on which facilities owned
or leased by the Debtor or any of its subsidiaries are located;
(h) a Lien ("Purchase Lien") on any asset securing
indebtedness (including capitalized lease obligations) incurred or
assumed for the purpose of financing the purchase price (including
capitalized lease payments in the nature thereof) of such asset,
provided that such Purchase Lien attaches only to the asset
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acquired with the proceeds of such indebtedness and attaches
concurrently with or within ten (10) days following the acquisition
thereof (but not including the matters referred to in (j) below).
(i) the existing Liens ("Existing Liens") described on
Schedule 2 annexed hereto.
(j) liens (the "Acquisition Liens") related to future
acquisition that have been approved, prior to such acquisitions, but
the Secured Party Representative.
"Person" means any natural person, corporation, firm, association,
partnership, joint venture, limited liability company, joint-stock company,
trust, unincorporated organization, government, governmental agency or
subdivision, or any other entity, whether acting in an individual, fiduciary or
other capacity.
"Receivables" has the meaning specified therefor in clause (ii) of
the definition of Collateral.
"Secured Obligations" means all obligations of the Debtor, whether
for fees, expenses or otherwise, now existing or hereafter arising under this
Agreement and the Notes.
Section 2. Security Interests. As security for the payment and
performance of all Secured Obligations the Debtor does hereby grant and assign
to the Secured Party Representative for the benefit of the Note Holders, a
continuing perfected security interest in all of the Collateral, whether now
existing or hereafter arising or acquired and wherever located, subject to the
priority, if any, of Existing Liens and pari passu with any Purchase Liens and
Acquisition Lien.
Section 3. General Representations, Warranties and Covenants. The
Debtor represents, warrants and covenants, which representations, warranties and
covenants shall survive execution and delivery of this Agreement, as follows:
(a) This Agreement is made with full recourse to the Debtor and
pursuant to and upon all the warranties, representations, covenants, and
agreements on the part of the Debtor contained herein, in the Note and otherwise
made in writing in connection herewith or therewith.
(b) Except for the security interest of the Secured Party
Representative therein, the Debtor is, and as to Collateral acquired from time
to time after the date hereof the Debtor will be, the owner of all the
Collateral free from any lien, security interest, encumbrance or other right,
title or interest of any Person (other than Permitted Liens) and the Debtor
shall defend the Collateral against all claims and demands of all Persons at any
time claiming the same or any interest therein adverse to the Secured Party
Representative.
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(c) There is no financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) now on file or
registered in any public office covering any interest of any kind in the
Collateral, or intended to cover any such interest, which has not been
terminated or released by the secured party named therein and so long as the
Notes remain outstanding or any of the Secured Obligations of the Debtor remain
unpaid, the Debtor will not execute and there will not be on file in any public
office any financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or statements relating to the
Collateral, except (i) financing statements filed or to be filed in respect of
and covering the security interest of the Secured Party Representative hereby
granted and provided for and (ii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the
Debtor is located at the address of the Debtor listed on the signature page
hereof, and the Debtor will not move its chief executive office and chief place
of business except to such new location as the Debtor may establish in
accordance with the last sentence of this Section 3(d). The originals of all
Assigned Agreements and all documents (as well as all duplicates thereof)
evidencing all Receivables and all other contract rights or accounts and other
property of the Debtor and the only original books of account and records of the
Debtor relating thereto are, and will continue to be, kept at such chief
executive office or at such new location as the Debtor may establish in
accordance with the last sentence of this Section 3(d). The Debtor shall
establish no such new location until (i) it shall have given to the Secured
Party Representative not less than 30 days' prior written notice of its
intention to do so, clearly describing such new location and providing such
other information in connection therewith as the Secured Party Representative
may reasonably request, and (ii) with respect to such new location, it shall
have taken such action, satisfactory to the Secured Party Representative
(including, without limitation, all action required by Section 7 hereof), to
maintain the security interest of the Secured Party Representative in the
Receivables intended to be granted at all times fully perfected and in full
force and effect.
(e) Debtor has no Collateral located outside of the State(s) of
Michigan on the date hereof.
(f) The name of the Debtor is as set forth on the signature page
hereto and the Debtor shall not change such name, conduct its business in any
other name or take title to the Collateral in any other name while this
Agreement remains in effect without the consent of the Secured Party
Representative. The Debtor has never had any name, or conducted business under
any name in any jurisdiction, other than its name set forth on the signature
page hereto, during the past six years other than as set forth in Schedule 3
annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without
limiting the provisions of the Note, keep the Collateral fully insured at all
times with financially sound and
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responsible insurance carriers against loss or damage by fire and other risks,
casualties and contingencies and in such manner and to the same extent that like
properties are customarily so insured by other entities engaged in the same or
similar businesses similarly situated and keep adequate insurance at all times
against liability on account of damage to persons and properties and under all
applicable workers' compensation laws, by insurers and in reasonable amounts
approved by the Secured Party Representative, for the benefit of the Debtor and
the Secured Party Representative, (ii) upon request by the Secured Party
Representative, promptly deliver the insurance policies or certificates thereof
to the Secured Party Representative, and (iii) keep the Collateral in good
condition at all times (normal wear and tear excepted) and maintain same in
accordance with all manufacturer's specifications and requirements. Upon any
failure of the Debtor to comply with its obligations pursuant to this Section
3(g), the Secured Party Representative may at its option, and without affecting
any of its other rights or remedies provided herein or as a secured party under
the Uniform Commercial Code, procure the insurance protection it deems necessary
and/or cause repairs or modifications to be made to the Collateral and the cost
of either or both of which shall be a lien against the Collateral added to the
amount of the indebtedness secured hereby and payable on demand with interest at
a rate per annum equal to 15%.
(h) The Debtor hereby assigns to the Secured Party Representative
all of Debtor's right, title and interest in and to any and all monies which may
become due and payable with respect to the Collateral under any policy insuring
the Collateral (except proceeds relating to tangible personal property which are
applied to restoration or replacement), including return of unearned premium,
and shall cause any such insurance company to make payment directly to the
Secured Party Representative for application to amounts outstanding under the
Note in accordance with the terms of the Note and, to the extent not provided
therein, in such order as the Secured Party Representative shall determine.
(i) The Debtor will not use the Collateral in violation of any
statute or ordinance or applicable insurance policy and will promptly pay all
taxes and assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if
any, dispose of, attempt to dispose of, substantially modify or abandon the
Collateral or any part thereof other than sales of Inventory in the ordinary
course of business and the disposition of obsolete or worn-out Equipment in the
ordinary course of business.
(k) The Debtor will not assert against the Secured Party
Representative or the Note Holders any claim or defense which the Debtor may
have against any seller of the Collateral or any part thereof or against any
other Person with respect to the Collateral or any part thereof.
(l) The Debtor will indemnify and hold the Secured Party
Representative and the Note Holders harmless from and against any loss,
liability, damage, costs and expenses whatsoever
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arising from the Debtor's use, operation, ownership or possession of the
Collateral or any part thereof.
(m) The Debtor will maintain the confidentiality of all customer
lists and not sell or otherwise dispose of such lists except that the Debtor
shall deliver copies thereof to the Secured Party Representative upon its
request, which may be made at any time and from time to time after an Event of
Default.
(n) The Debtor will not enter into any agreement that is
inconsistent with the Debtor's obligations under this Agreement, without the
prior written consent of the Secured Party Representative.
Section 4. Special Provisions Concerning Assigned Agreements. The
Debtor represents, warrants and agrees as follows:
(a) The Assigned Agreements constitute the legal, valid and binding
obligations of the Debtor and, to the best of its knowledge, the other parties
thereto, enforceable in accordance with their respective terms.
(b) The Debtor will faithfully abide by, perform and discharge each
and every material obligation, covenant and agreement to be performed by the
Debtor under the Assigned Agreements.
(c) At the request of the Secured Party Representative, and at the
sole cost and expense of the Debtor, the Debtor will enforce or secure the
performance of each and every material obligation, covenant, condition and
agreement contained in the Assigned Agreements to be performed by the other
parties thereto.
(d) The Debtor will not modify, amend or agree to vary any of the
Assigned Agreements in any material respect other than in the ordinary course of
business, or otherwise act or fail to act in a manner likely (directly or
indirectly) to entitle any party thereto to claim that the Debtor is in default
under the terms thereof.
(e) The Debtor will not terminate or permit the termination of any
Assigned Agreement, except in accordance with its terms, other than in the
ordinary course of business.
(f) Without the prior written consent of the Secured Party
Representative, the Debtor will not, other than in the ordinary course of
business, waive or in any manner release or discharge any party to any Assigned
Agreement from any of the material obligations, covenants, conditions and
agreements to be performed by it under such Assigned Agreement including,
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without limitation, the obligation to make all payments in the manner and at the
time and places specified.
(g) If the Secured Party Representative so requests after the
occurrence of an Event of Default and unless and until it is cured, the Debtor
will hold any payments received by it which are assigned and set over to the
Secured Party Representative by this Agreement for and on behalf of the Secured
Party Representative and turn them promptly over to the Secured Party
Representative forthwith in the same form in which they are received (together
with any necessary endorsement) for application to amounts outstanding under the
Note in accordance with the terms of the Note and, to the extent not provided
therein, in such order as the Secured Party Representative shall determine.
(h) The Debtor will appear in and defend every action or proceeding
arising under, growing out of or in any manner connected with the Assigned
Agreements or the obligations, duties or liabilities of the Debtor and any
assignee thereunder.
(i) Should the Debtor fail to make any payment or to do any act as
herein provided after 15 day's notice by the Secured Party Representative, the
Secured Party Representative may (but without obligation on the Secured Party
Representative's part to do so and without notice to or demand on the Debtor and
without releasing the Debtor from any obligation hereunder) make or do the same
in such manner and to such extent as the Secured Party Representative may deem
reasonably necessary to protect the security interests provided hereby,
including specifically, without limiting the general powers, the right to appear
in and defend any action or proceeding purporting to affect the security
interests provided hereby and the Debtor, and the Secured Party Representative
may also perform and discharge each and every obligation, covenant and agreement
of the Debtor contained in any Assigned Agreement and, in exercising any such
powers, pay necessary costs and expenses, employ counsel and incur and pay
reasonable attorneys' fees.
(j) Upon the request of the Secured Party Representative, the Debtor
will send to the Secured Party Representative copies of all notices, documents
and other papers furnished or received by it with respect to any of the Assigned
Agreements.
Section 5. Special Provisions Concerning Receivables. (a) As of the
time when each Receivable arises, the Debtor shall be deemed to have warranted
as to each such Receivable that such Receivable and all papers and documents
relating thereto are genuine and in all respects what they purport to be, and
that all papers and documents relating thereto:
(i) will be signed by the account debtor named therein (or
such account debtor's duly authorized agent) or otherwise be binding
on the account debtor;
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(ii) will represent the genuine, legal, valid and binding
obligation of the account debtor evidencing indebtedness unpaid
and owed by such account debtor arising out of the performance of
labor or services or the sale and delivery of merchandise or both;
(iii) to the extent evidenced by writings, will be the only
original writings evidencing and embodying such obligation of the
account debtor named therein; and
(iv) will be in compliance and will conform with all
applicable federal, state and local laws (including applicable usury
laws) and applicable laws of any relevant foreign jurisdiction.
(b) The Debtor will keep and maintain at the Debtor's own cost and
expense satisfactory and complete records of the Receivables, including, but not
limited to, records of all payments received, all credits granted thereon, all
merchandise returned and all other dealings therewith, and the Debtor will make
the same available to the Secured Party Representative, at the Debtor's own cost
and expense, at any and all reasonable times upon notice from the Secured Party
Representative. The Debtor shall, at the Debtor's own cost and expense, deliver
the Receivables (including, without limitation, all documents evidencing the
Receivables) and such books and records to the Secured Party Representative or
to its representatives upon its demand at any time after the occurrence of an
Event of Default unless and until it is cured and, if prior to the Maturity
Date, Acceleration. If the Secured Party Representative shall so request, the
Debtor shall legend, in form and manner satisfactory to the Secured Party
Representative, the Receivables and other books, records and documents of the
Debtor evidencing or pertaining to the Receivables with an appropriate reference
to the fact that the Receivables have been assigned to the Secured Party
Representative and that the Secured Party Representative has a security interest
therein.
(c) Except in the ordinary course of business prior to an Event of
Default and, if prior to the Maturity Date, Acceleration, the Debtor will not
rescind or cancel any indebtedness evidenced by any Receivable or modify any
material term thereof or make any adjustment with respect thereto, or extend or
renew the same, or compromise or settle any dispute, claim, suit or legal
proceeding relating thereto, or sell any Receivable or interest therein, without
the prior written consent of the Secured Party Representative, except that the
Debtor may grant discounts in connection with the prepayment of any Receivable
in an amount which is customary in the line of business in which the Debtor is
engaged and consistent with the Debtor's past practices.
(d) The Debtor will duly fulfill all obligations on its part to be
fulfilled under or in connection with the Receivables and will do nothing to
impair the rights of the Secured Party Representative in the Receivables.
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(e) The Debtor shall endeavor to collect or cause to be collected
from the account debtor named in each Receivable, as and when due (including,
without limitation, Receivables which are delinquent, such Receivables to be
collected in accordance with generally accepted lawful collection procedures)
any and all amounts owing under or on account of such Receivable, and credit
forthwith (on a daily basis) upon receipt thereof all such amounts as are so
collected to the outstanding balance of such Receivable. The costs and expenses
(including reasonable attorney's fees) of collection, whether incurred by the
Debtor or the Secured Party Representative, shall be borne by the Debtor.
(f) If any of the Receivables becomes evidenced by an Instrument
(other than a check received in payment of a Receivable and deposited in the
ordinary course of business), the Debtor will notify the Secured Party
Representative thereof, and, upon request by the Secured Party Representative,
promptly deliver such Instrument to the Secured Party Representative
appropriately endorsed to the order of the Secured Party Representative as
further security for the satisfaction in full of the Secured Obligations.
(g) Upon request of the Secured Party Representative, at any time
when an Event of Default and, if prior to the Maturity Date, Acceleration shall
exist, the Debtor shall promptly notify (in manner, form and substance
satisfactory to the Secured Party Representative) all Persons who are at any
time obligated under any Receivable that the Secured Party Representative
possesses a security interest in such Receivable and that all payments in
respect thereof are to be made to such account as the Secured Party
Representative directs.
Section 6. Special Provisions Concerning Equipment. The Debtor will
do nothing to impair the rights of the Secured Party Representative in the
Equipment. The Debtor shall cause the Equipment to at all times constitute and
remain personal property. The Debtor will at all times keep all Equipment
insured with financially responsible insurance companies in favor of the Secured
Party Representative, at the expense of the Debtor, against such perils and in
such amounts as are customary for Persons in the same general line of business
as the Debtor and operating in similar geographic locations and markets. If the
Debtor shall fail to insure the Equipment to the Secured Party Representative's
satisfaction, or if the Debtor shall fail so to endorse and deposit all policies
or certificates with respect thereto, the Secured Party Representative shall
have the right (but shall be under no obligation) to procure such insurance and
the Debtor agrees to reimburse the Secured Party Representative for all costs
and expenses of procuring such insurance, together with interest at a rate per
annum equal to 15%. The Secured Party Representative may apply any proceeds of
such insurance when received by it pursuant to the terms of this Section 6 or
Section 3(h) hereof toward the payment of any of the Secured Obligations,
whether or not the same shall then be due. The Debtor retains all liability and
responsibility in connection with the Equipment and the liability of the Debtor
to pay the Secured Obligations shall in no way be affected or diminished by
reason of the fact that such Equipment may be lost, destroyed, stolen, damaged
or for any reason whatsoever unavailable to the Debtor.
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Section 7. Financing Statements; Documentary Stamp Taxes. (a) The
Debtor will, at its own expense, make, execute, endorse, acknowledge, file
and/or deliver to the Secured Party Representative from time to time such lists,
descriptions and designations of Inventory, warehouse receipts, bills of lading,
documents of title, vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such further
steps relating to the Collateral and other property or rights covered by the
security interest hereby granted, which the Secured Party Representative deems
appropriate or advisable to perfect, preserve or protect its security interest
in the Collateral. The Debtor hereby constitutes the Secured Party
Representative its attorney-in-fact to execute and file in the name and on
behalf of the Debtor such additional financing statements and other documents as
the Secured Party Representative may request, such acts of such attorney being
hereby ratified and confirmed; such power, being coupled with an interest, is
irrevocable until the Secured Obligations are paid in full. Further, to the
extent permitted by applicable law, the Debtor authorizes the Secured Party
Representative to file any such financing statements and other documents without
the signature of the Debtor or to execute the same on behalf of the Debtor. The
Debtor will pay all applicable filing fees and related expenses in connection
with any such financing statements.
(b) The Debtor agrees to procure, pay for, affix to any and all
documents and cancel any documentary tax stamps required by and in accordance
with, applicable law and the Debtor will indemnify and hold the Secured Party
Representative harmless against any liability (including interest and penalties)
in respect of such documentary stamp taxes.
Section 8. Special Provisions Concerning Remedies and Sale. In
addition to any rights and remedies now or hereafter granted under applicable
law and not by way of limitation of any such rights and remedies, upon the
occurrence of an Event of Default the Secured Party Representative shall have
all of the rights and remedies of a secured party under the Uniform Commercial
Code as enacted in any applicable jurisdiction in addition to the rights and
remedies provided herein, in the Note and in any other agreement executed in
connection with the Note whereby the Debtor has granted any Lien to the Secured
Party Representative. Without in any way limiting the foregoing, upon the giving
of notice to the Debtor of Secured Party Representative's intent to pursue any
one or all of the following or any other remedies:
(a) Upon the occurrence of an Event of Default, and unless and until
it is cured, the Secured Party Representative shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in any
applicable jurisdiction in addition to the rights and remedies provided herein,
in the Note and any other document whereby the Debtor has granted any Lien to
the Secured Party Representative. The Secured Party Representative shall have
the right, without further notice to, or assent by, the Debtor, in the name of
the Debtor or in the name of the Secured Party Representative or otherwise:
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(i) to ask for, demand, collect, receive, compound and give
acquittance for the Receivables or any part thereof;
(ii) to extend the time of payment of, compromise or settle
for cash, credit or otherwise, and upon any terms and conditions,
any of the Receivables;
(iii) to endorse the name of the Debtor on any checks, drafts
or other orders or instruments for the payment of moneys payable to
the Debtor which shall be issued in respect of any Receivable;
(iv) to file any claims, commence, maintain or discontinue any
actions, suits or other proceedings deemed by the Secured Party
Representative necessary or advisable for the purpose of collecting
or enforcing payment of any Receivable;
(v) to make test verifications of the Receivables or any
portion thereof;
(vi) to notify any or all account debtors under any or all of
the Receivables to make payment thereof directly to the Secured
Party Representative for the account of the Secured Party
Representative and to require the Debtor to forthwith give similar
notice to the account debtors;
(vii) to require the Debtor forthwith to account for and
transmit to the Secured Party Representative in the same form as
received all proceeds (other than physical property) of collection
of Receivables received by the Debtor and, until so transmitted, to
hold the same in trust for the Secured Party Representative and not
commingle such proceeds with any other funds of the Debtor;
(viii) to take possession of any or all of the Collateral and,
for that purpose, to enter, with the aid and assistance of any
Person or Persons and with or without legal process, any premises
where the Collateral, or any part thereof, are, or may be, placed or
assembled, and to remove any of such Collateral;
(ix) to execute any instrument and do all other things
necessary and proper to protect and preserve and realize upon the
Collateral and the other rights contemplated hereby;
(x) upon notice to such effect, to require the Debtor to
deliver, at the Debtor's expense, any or all Collateral to the
Secured Party Representative at a place designated by the Secured
Party Representative; and
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(xi) without obligation to resort to other security, at any
time and from time to time, to sell, re-sell, assign and deliver all
or any of the Collateral, in one or more parcels at the same or
different times, and all right, title and interest, claim and demand
therein and right of redemption thereof, at public or private sale,
for cash, upon credit or for future delivery, and at such price or
prices and on such terms as the Secured Party Representative may
determine, with the amounts realized from any such sale to be
applied to the Secured Obligations in the manner determined by the
Secured Party Representative.
The Debtor hereby agrees that all of the foregoing may be effected without
demand, advertisement or notice (except as otherwise provided herein or as may
be required by law), all of which (except as otherwise provided) are hereby
expressly waived, to the extent permitted by law. The Secured Party
Representative shall not be obligated to do any of the acts hereinabove
authorized, but in the event that the Secured Party Representative elects to do
any such act, the Secured Party Representative shall not be responsible to the
Debtor except for its gross negligence or willful misconduct.
(b) The Secured Party Representative may take legal proceedings for
the appointment of a receiver or receivers (to which the Secured Party
Representative shall be entitled as a matter of right) to take possession of the
Collateral pending the sale thereof pursuant either to the powers of sale
granted by this Agreement or to a judgment, order or decree made in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement.
If, after the exercise of any or all of such rights and remedies, any of the
Secured Obligations shall remain unpaid, the Debtor shall remain liable for any
deficiency. After the indefeasible payment in full of the Secured Obligations,
any proceeds of the Collateral received or held by the Secured Party
Representative shall be turned over to the Debtor and the Collateral shall be
promptly reassigned to the Debtor by the Secured Party Representative without
recourse to the Secured Party Representative and without any representations,
warranties or agreements of any kind.
(c) Upon any sale of any of the Collateral, whether made under the
power of sale hereby given or under judgment, order or decree in any judicial
proceeding for the foreclosure or involving the enforcement of this Agreement:
(i) the Secured Party Representative may, to the extent
permitted by law, bid for and purchase the property being sold, and
upon compliance with the terms of sale may hold, retain and possess
and dispose of such property in its own absolute right without
further accountability, and may, in paying the purchase money
therefor, deliver any Note or claims for interest thereon and any
other instruments evidencing the Secured Obligations or agree to the
satisfaction of all or a portion of the Secured Obligations in lieu
of cash in payment of the amount which shall be payable thereon, and
the Note and such instruments, in case the amounts so payable
thereon shall be
14
less than the amount due thereon, shall be returned to the Secured
Party Representative after being appropriately stamped to show
partial payment;
(ii) the Secured Party Representative may make and deliver to
the purchaser or purchasers a good and sufficient deed, xxxx of sale
and instrument of assignment and transfer of the property sold;
(iii) the Secured Party Representative is hereby irrevocably
appointed the true and lawful attorney-in-fact of the Debtor in its
name and stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property thus sold and
for such other purposes as are necessary or desirable to effectuate
the provisions (including, without limitation, this Section 8) of
this Agreement, and for that purpose it may execute and deliver all
necessary deeds, bills of sale and instruments of assignment and
transfer, and may substitute one or more Persons with like power,
the Debtor hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do by
virtue hereof; but if so requested by the Secured Party
Representative or by any purchaser, the Debtor shall ratify and
confirm any such sale or transfer by executing and delivering to the
Secured Party Representative or to such purchaser all property,
deeds, bills of sale, instruments or assignment and transfer and
releases as may be designated in any such request;
(iv) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of the Debtor of, in and to
the property so sold shall be divested; such sale shall be a
perpetual bar both at law and in equity against the Debtor, its
successors and assigns, and against any and all Persons claiming or
who may claim the property sold or any part thereof from, through or
under the Debtor, its successors or assigns;
(v) the receipt of the Secured Party Representative or of the
officer thereof making such sale shall be a sufficient discharge to
the purchaser or purchasers at such sale for his or their purchase
money, and such purchaser or purchasers, and his or their assigns or
personal representatives, shall not, after paying such purchase
money and receiving such receipt of the Secured Party Representative
or of such officer therefor, be obliged to see to the application of
such purchase money or be in any way answerable for any loss,
misapplication or non-application thereof; and
(vi) to the extent that it may lawfully do so, and subject to
any legal requirement that the Secured Party Representative act in a
commercially reasonable manner, the Debtor agrees that it will not
at any time insist upon, or plead, or in any
15
manner whatsoever claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption laws, or any
law permitting it to direct the order in which the Collateral or any
part thereof shall be sold, now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance or
enforcement of this Agreement, the Note or any other agreement
executed in connection with the Note whereby the Debtor has granted
any Lien to the Secured Party Representative, and the Debtor hereby
expressly waives all benefit or advantage of any such laws and
covenants that it will not hinder, delay or impede the execution of
any power granted or delegated to the Secured Party Representative
in this Agreement, but will suffer and permit the execution of every
such power as though no such laws were in force. In the event of any
sale of Collateral pursuant to this Section, the Secured Party
Representative shall, at least 10 days before such sale, give the
Debtor written, telecopied or telex notice of its intention to sell.
Section 9. Application of Moneys. (a) Except as otherwise provided
herein or in the Note, all moneys which the Secured Party Representative shall
receive, in accordance with the provisions hereof, shall be applied (to the
extent thereof) in the following manner: First, to the payment of all costs and
expenses reasonably incurred in connection with the administration and
enforcement of, or the preservation of any rights under, this Agreement or any
of the reasonable expenses and disbursements of the Secured Party Representative
(including, without limitation, the reasonable fees and disbursements of its
counsel and agents); Second, to the payment of all Secured Obligations arising
out of the Note in accordance with the terms of the Note and, if not therein
provided, in such order as the Secured Party Representative may determine; and
Third, to the payment of all other Secured Obligations in such order as the
Secured Party Representative may determine.
(b) If after applying any amounts which the Secured Party
Representative has received in respect of the Collateral any of the Secured
Obligations remain unpaid, the Debtor shall continue to be liable for any
deficiency, together with interest.
Section 10. Fees and Expenses, etc. Any and all fees, costs and
expenses of whatever kind or nature, including but not limited to the reasonable
attorneys' fees and legal expenses incurred by the Secured Party Representative
in connection with this Agreement, the filing or recording of any documents
(including all taxes in connection therewith) in public offices, the payment or
discharge of any taxes, counsel fees, maintenance fees, fees and other costs
relating to the encumbrances or otherwise protecting, maintaining, preserving
the Collateral, or in defending or prosecuting any actions or proceedings
arising out of or related to the Collateral, shall be borne and paid by the
Debtor on written demand by the Secured Party Representative setting forth in
reasonable detail the nature of such expenses and until so paid shall be added
to the principal amount of the Secured Obligations and shall bear interest at a
rate per annum equal to 15%. In addition, the Debtor will pay, and indemnify and
hold the Secured Party Representative harmless
16
from and against, any and all liabilities, obligations, losses, damages
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the Collateral, including (without
limitation) claims of patent or trademark infringement and any claim of unfair
competition or anti-trust violation.
Section 11. Miscellaneous. All notices, communications and
distributions hereunder shall be in writing (including telecopied communication)
and telecopied, personally delivered or delivered by Federal Express or other
reputable overnight courier service, if to the Debtor addressed to it at its
address set forth opposite its signature below, if to the Secured Party
Representative, addressed to it at its address set forth opposite its signature
below, or as to either party at such other address as shall be designated by
such party in a written notice to such other party complying as to delivery with
the terms of this Section. All such notices and other communications shall be
effective (i) if telecopied, upon receipt by the addressee, (ii) if personally
delivered, upon such delivery and (iii) if delivered by overnight courier
service, on the business day following delivery thereof to such courier service
in time for next-business-day delivery.
(b) No delay on the part of the Secured Party Representative in
exercising any of its rights, remedies, powers and privileges hereunder or
partial or single exercise thereof, shall constitute a waiver thereof. None of
the terms and conditions of this Agreement may be changed, waived, modified or
varied in any manner whatsoever unless in writing duly signed by the Debtor and
the Secured Party Representative. No notice to or demand on the Debtor in any
case shall entitle the Debtor to any other or further notice or demand in
similar or other circumstances or constitute a waiver of any of the rights of
the Secured Party Representative to any other or further action in any
circumstances without notice or demand.
(c) The obligations of the Debtor hereunder shall remain in full
force and effect without regard to, and shall not be impaired by, (i) any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition,
liquidation or the like of the Debtor; (ii) any exercise or non-exercise, or any
waiver of, any right, remedy, power or privilege under or in respect of the
Note, this Agreement or any other agreement executed in connection with the Note
whereby the Debtor has granted any Lien to the Secured Party Representative or
any other agreement executed in connection with any of the foregoing, the
Secured Obligations or any security for any of the Secured Obligations; or (iii)
any amendment to or modification of any of the foregoing; whether or not the
Debtor shall have notice or knowledge of any of the foregoing. The rights and
remedies of the Secured Party Representative herein provided are cumulative and
not exclusive of any rights or remedies which the Secured Party Representative
would otherwise have.
(d) This Agreement shall be binding upon the Debtor and its
successors and assigns and shall inure to the benefit of the Secured Party
Representative and its successors and assigns, except that the Debtor may not
transfer or assign any of its obligations, rights or interest hereunder without
the prior written consent of the Secured Party Representative and any such
17
purported assignment by the Debtor shall be void. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement.
(e) If Debtor has, forms or acquires any subsidiary, such subsidiary
shall thereupon guaranty the Secured Obligations and enter into a security
agreement with the Secured Party Representative substantially identical to this
Agreement, all in form and substance satisfactory to the Secured Party
Representative.
(f) The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement.
(g) Any provision of this Agreement, which is prohibited or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(h) All rights, remedies and powers provided by this Agreement may
be exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and the provisions hereof are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable in whole or in part or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
(i) This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws of
the State of New York except to the extent that matters of title, or creation,
perfection and priority of the security interests created hereby, or procedural
issues of foreclosure are required to be governed by the laws of the state in
which the Collateral, or part thereof, is located. EACH PARTY HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION BASED ON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTE OR ANY
FINANCING DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE SECURED PARTY'S ENTERING INTO THIS AGREEMENT.
(j) It is expressly agreed, anything herein, in the Note or in any
other agreement or instrument executed in connection with the Note to the
contrary notwithstanding, that the Debtor shall remain liable to perform all of
the obligations, if any, assumed by it with respect to the
18
Collateral and the Secured Party Representative shall not have any obligations
or liabilities with respect to any Collateral by reason of or arising out of
this Agreement, nor shall the Secured Party Representative be required or
obligated in any manner to perform or fulfill any of the obligations of the
Debtor under or pursuant to any or in respect of any Collateral.
(k) This Agreement may be executed in any number of counterparts and
by the different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which counterparts taken
together shall be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
Addresses TARPON INDUSTRIES, INC.
as Debtor
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
XXXXXX XXXXXX & CO., LLC
as Secured Party Representative
00 Xxxxx Xxxxxx
00xx Xxxxx By: /s/ Xxxxxxx X. Xxxxx
New York, NY ---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Member
19
