EXHIBIT 10.5
------------
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") dated as of the 3rd day of
September, 2003, between GREYSTONE MANUFACTURING, L.L.C., an Oklahoma limited
liability company ("Borrower," which term shall be construed to include its
successors-in-interest and assigns), and GREYSTONE PLASTICS, INC., an Iowa
corporation ("Creditor," which term shall be construed to include its
successors-in-interest and assigns).
RECITALS
A. Borrower is or shall be in the future indebted to Creditor under a
promissory note dated September 3, 2003 (the "Note").
B. All present and future obligations of Borrower to Creditor are to be
secured by a security interest in favor of Creditor in the "Collateral" as such
term is defined in Section 3 of this Agreement and as set forth in Schedule 3
hereof.
C. The purpose of this Agreement is to evidence the security interest
granted Creditor in the Collateral.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms.
(a) The following terms shall have the following meanings, (such
terms to be equally applicable to both singular and plural
forms of the terms defined):
(i) "Code" shall mean the Uniform Commercial Code as the same
may from time to time be in effect in the State of Iowa.
(ii) "Collateral" shall have the meaning set forth in Section
3 of this Agreement.
(iii) "Event of Default" shall mean any default in the timely
payment or performance by Buyer of any of Borrower's
Obligations (as defined in Section 2 hereof) to Creditor.
(b) The following terms shall have the meanings set forth in the
Code (such terms to be equally applicable to both singular and
plural forms of the terms defined): (i) "Accounts," (ii)
"Chattel Payer," (iii) "Document," (iv) "Equipment," (v)
"Fixtures," (vi) "General Intangible," (vii) "Inventory,"
(viii) "Investment Property," (ix) "Instrument" (x) "Goods" and
(xi) "Proceeds."
2. Obligations Secured by the Agreement. The security interest herein
granted is given to secure all indebtedness of Borrower to Creditor, whether the
same is incurred under an open account, is evidenced by a promissory note
(including the Note) or otherwise and whether such indebtedness is now existing
or is hereafter incurred, and all obligations of Borrower to Creditor under this
Agreement (hereinafter collectively referred to as the "Obligations"), and all
expenditures by Creditor involving the performance of or enforcement of any
agreement, covenant or warranty provided for by this Agreement or under the
Obligations, including all costs, attorneys' fees (whether incurred in
connection with bankruptcy, appellate, probate or nonjudicial proceedings or
otherwise) and other expenditures of Creditor in the collection and enforcement
of any obligation or liability of Borrower to Creditor under this Agreement or
under the Obligations and in the collection and enforcement of or realization
upon any of the Collateral.
3. Assignment and Grant of Security Interest. Borrower hereby assigns,
transfers and conveys to Creditor and grants to Creditor a security interest in,
to and under all assets of both in Schedule 3 hereof (all of which are
hereinafter collectively called the "Collateral").
4. Continuing Liability. Borrower hereby expressly agrees that,
anything herein to the contrary notwithstanding, it shall remain liable under
each contract, agreement and instrument, assigned by it to Creditor hereunder to
observe and perform all the conditions and obligations to be observed and
performed by it thereunder, and covenants and agrees to observe and perform all
such conditions and obligations, all in accordance with and pursuant to the
terms and provisions thereof. Creditor shall have no obligation or liability
under any such contract, agreement or instrument, or the Accounts, by reason of
or arising out of this Agreement or the assignment thereof to Creditor or the
receipt by Creditor of any payment relating to any such contract, agreement or
instrument, or the Accounts pursuant hereto, nor shall Creditor be required or
obligated in any manner to perform or to fulfill any of the obligations of
Borrower thereunder or pursuant thereto, or to make any payment, or to make any
inquiry as to the nature or the sufficiency of any payment received by it or the
sufficiency of any performance by any party under any such contract, agreement
or instrument, or the Accounts, or to present or file any claim, or to take any
action to collect or enforce any performance or the payment of any amounts which
may have been assigned to it or to which it may be entitled at any time or
times.
5. Representations, Warranties and Covenants of Borrower.
(a) Borrower hereby represents and warrants to Creditor that:
(i) this Security Agreement constitutes and shall at all
times constitute the only lien on the Collateral except
for the lien of US BANCORP ("Bank Lien") (in the amount
of $_________) which shall have priority over the lien
granted pursuant to this Agreement;
(ii) Borrower is the absolute owner of the Collateral, free
and clear of any and all claims or liens in favor of
others (except as noted in (i) above), with full right to
pledge, sell, assign, transfer and create a security
interest therein;
-2-
(iii) The Borrower is a limited liability company duly formed,
validly existing and in good standing under the laws of
the State of Oklahoma.
(iv) The Borrower has places of business at the following
locations: 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000;
(v) If the Borrower has more than one place of business, the
Borrower has its chief executive office at: 0000 Xxxx
00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
(b) Borrower shall at its expense forever warrant and, at
Creditor's request, defend the Collateral from any and all
claims and demands of any other person and it shall not grant,
create or permit to exist any lien upon or security interest in
the Collateral in favor of any other person (except for the
Bank Lien).
(c) Borrower shall not sell, transfer, lease or otherwise dispose
of any of the Collateral (except for sales of Inventory in the
ordinary course of business) without obtaining the prior
written consent of Creditor to such sale, transfer, lease or
other disposition.
(d) Borrower shall not move any item of Equipment from the 0000
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 where it is now
located, locate at a new place of business, remove from a place
of business as set forth above, establish a new chief executive
office, change its corporate name or state of incorporation or
use a trade name not listed above until the lien has been
released or otherwise approved by the Creditor giving written
notice of such intended relocation, removal, establishment,
change or use.
(e) Borrower shall not merge, consolidate, dissolve, liquidate,
convert or otherwise engage in any restructuring or
reorganization without obtaining the prior written consent of
Creditor to such transaction.
(f) Borrower shall not agree to do anything which it is prohibited
from doing under subsections (b), (c) or (e) above.
(g) No other lien on the Equipment other than the lien of Bank
Lien.
6. Creditor Appointed as Attorney-in-Fact.
(a) Borrower hereby irrevocably constitutes and appoints Creditor
and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of
Borrower and in the name of Borrower or in its own name, from
time to time in Creditor's discretion, for the purpose of
carrying out the terms of this Agreement, such power and
authority to be exercisable upon the occurrence of an Event of
Default, to take any and all appropriate action and to execute
any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement,
including, without limiting the generality of the foregoing,
the power and right, without notice to or assent by Borrower to
do the following:
-3-
(i) upon the occurrence and continuance of any Event of
Default, to ask, demand, collect, receive and give
acquittances and receipts for any and all moneys due and
to become due, or any performance to be rendered, under
any Account or any contract, agreement or instrument
included in the Collateral and, in the name of Borrower
or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of
moneys due under any Account, or any other contract,
agreement or instrument included in the Collateral and to
file any claim or to take any other action or proceeding
in any court of law or equity or otherwise deemed
appropriate by Creditor for the purpose of collecting any
and all such moneys due or securing any performance to be
rendered under any such contract, agreement or instrument
pledged and assigned hereby;
(ii) upon the occurrence and continuance of any Event of
Default, to pay or discharge taxes, liens, security
interests or other encumbrances levied or placed on or
threatened against the Collateral; and
(iii) upon the occurrence and continuance of any Event of
Default (A) to direct any party liable for any payment or
performance under any of the Accounts included in the
Collateral to make payment of any and all moneys due and
to become due thereunder or to render any performance
provided for therein directly to Creditor or as Creditor
shall direct; (B) to receive payment of and receipt for
any and all moneys, claims and other amounts due and to
become due at any time in respect of or arising out of
any Collateral; (C) to sign and endorse any invoices,
freight or express bills, bills of lading, drafts against
debtors, assignments, verifications and notices in
connection with Accounts and other documents relating to
the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Collateral or
any Proceeds thereof and to enforce any other right in
respect of any Collateral; (E) to defend any suit, action
or proceeding brought against Borrower with respect to
any Collateral; (F) to settle, compromise or adjust any
-4-
suit, action or proceeding described above and, in
connection therewith, to give such discharges or releases
as Creditor may deem appropriate; and (G) generally to
sell, transfer, pledge, make any agreement with respect
to or otherwise deal with any of the Collateral as fully
and completely as though Creditor was the absolute owner
thereof for all purposes, and to do, at Creditor's option
and Borrower's expense, at any time, or from time to
time, all acts and things which Creditor deems necessary
to protect, preserve or realize upon the Collateral and
Creditor's security interest therein in order to effect
the intent of this Agreement, all as fully and
effectively as Borrower might do.
Borrower hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. This
power-of-attorney is a power coupled with an interest and
shall be irrevocable.
(b) The powers conferred on Creditor and the other attorneys
appointed hereunder are solely to protect the interests of
Creditor in the Collateral and shall not impose any duty upon
them to exercise any such powers. Creditor and the other
attorneys appointed hereunder shall be accountable only for
amounts that they actually receive as a result of the exercise
of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to Borrower
for any act or failure to act, except for their gross
negligence or willful misconduct.
(c) Borrower also authorizes Creditor, at any time and from time to
time, (i) to communicate in its own name with any party to any
contract, agreement or Account included in the Collateral with
regard to the assignment thereof hereunder and other matters
relating thereto; and (ii) to execute, in connection with the
sale provided for in Section 9 of this Agreement, any
endorsements, assignments, bills of sale or other instruments
of conveyance or transfer with respect to the Collateral.
7. Performance by Creditor of Borrower's Obligations. If Borrower
fails to perform or comply with any of its agreements contained herein, under
the obligations or in any contract, agreement or instrument included in the
Collateral, and Creditor, as provided for by the terms of this Agreement, shall
itself perform or comply, or otherwise cause performance or compliance, with
such agreement, the expenses of Creditor incurred in connection with such
performance or compliance, together with interest thereon at the maximum lawful
interest rate permitted under the laws of the State of Oklahoma shall be payable
by Borrower to Creditor on demand and until such payment shall constitute
Obligations secured hereby. Creditor shall have the right to pay off any lien,
security interest or other encumbrance on the Collateral, regardless of whether
the obligations secured by such lien, security interest or other encumbrance are
due and owing, and such amount shall constitute obligations secured hereby.
-5-
8. Inspection Rights. Creditor is hereby given the right and privilege,
during regular business hours, of making such inspections of the Collateral and
records thereof as it deems necessary and of auditing or causing an audit or
verification of the books and records of Borrower relating to the Collateral at
any time and from time to time, including the contacting of customers or
suppliers of Borrower in connection with such audit or verification. Borrower
agrees to assist Creditor in every way necessary to facilitate such audits,
verifications and inspections.
9. Remedies. If an Event of Default hereunder or under the obligations
has occurred and is continuing, Creditor may exercise, in addition to all other
rights and remedies granted to it in this Agreement, all rights and remedies of
a secured party under the Code or any other applicable law. Creditor, at its
option, may proceed as to all or any part of the Collateral in accordance with
its rights or remedies hereunder. Without limiting the generality of the
foregoing, Borrower expressly agrees that in any such event Creditor, without
demand of performance or other demand, advertisement or notice of any kind to or
upon Borrower or any other person (all and each of which demands, advertisements
and/or notices are hereby expressly waived), may forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease, license, assign, give option or options to purchase, or
sell or otherwise dispose of and deliver said Collateral (or contract to do so),
or any part thereof, in one or more parcels at public or private sale or sales,
at any exchange, broker's board or at any of Creditor's offices or the
Borrower's offices or elsewhere at such prices as it may deem best, for cash or
on credit or for future delivery without assumption of any credit risk, and
Creditor shall apply the net proceeds (after expenses) of any such sale, lease,
license, assignment or other disposition against the indebtedness secured hereby
in such order as Creditor in its sole discretion shall determine, Borrower
remaining liable for any deficiency therein. Creditor shall have the right upon
any such public sale or sales to purchase the whole or any part of the
Collateral so sold. To the extent permitted by applicable law, Borrower waives
all claims, damages and demands against Creditor arising out of the
repossession, retention, sale or license of the Collateral. In the event
Creditor is required by law to give written notice to Borrower of any
disposition of the Collateral, Borrower agrees that five (5) days' prior written
notice by Creditor to Borrower shall be deemed to be reasonable notice.
10. Grant of License to Use Intangibles. For the purpose of enabling
Creditor to exercise rights and remedies under this Agreement at such time as
Creditor shall be lawfully entitled to exercise such rights and remedies and for
no other purpose, Borrower hereby grants to Creditor an irrevocable,
nonexclusive license (exercisable without payment of royalty or other
compensation to Borrower) to use, assign or sublicense any of the Collateral,
now owned or hereafter acquired by Borrower and wherever the same may be
located, including in such license reasonable access to all media in which any
of the licensed items may be recorded or stored and to all computer programs
used for the compilation or printout thereof. Until such time as Creditor is
entitled to exercise such rights and remedies Borrower is entitled to use the
Collateral without payment of royalty or other compensation to Creditor.
11. Limitation on Creditor's Duty in Respect of Collateral. Beyond the
use of reasonable care in the custody and preservation thereof, Creditor shall
not have any duty as to any Collateral in its possession or control or in the
possession or control of its agent or nominee or any income thereon or as to the
preservation of rights against prior parties or any other rights pertaining
thereto.
-6-
12. Further Assurances, Etc. Borrower authorizes Creditor to sign and
file financing statements, continuation statements and any other forms, filings
or other statements required or permitted under the Code at any time and from
time to time with respect to the Collateral without Borrower's signature and on
Borrower's behalf. Borrower will, however, at any time upon Creditor's request,
sign financing statements, continuation statements, trust receipts, security
agreements or other agreements, forms, filings or other statements with respect
to the Collateral. Upon the failure of Borrower to do so, Creditor is authorized
as Borrower's agent to sign any such instrument or agreement. Borrower agrees
that at any time and from time to time upon the written request of Creditor,
Borrower will promptly execute and deliver any and all such further instruments
and documents and do such further acts as Creditor may reasonably request in
order to carry out more effectively the purposes of this Agreement and obtain
for Creditor the full benefits of the security interests granted to Creditor
hereby.
13. Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including telegraph, cable, telex,
facsimile or similar transmissions or writing) and shall be given to such party
at its address, or telex, cable or facsimile number set forth below or such
other address or telex, cable or facsimile number as such party may hereafter
specify by written notice to the other parties hereto.
14. Partial Invalidity. If any term, covenant or condition of this
Agreement or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term, covenant or condition of this Agreement shall be
held valid and be enforced to the fullest extent permitted by law.
15. No Waiver; Cumulative Remedies. Creditor shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
Creditor, and then only to the extent therein set forth. A waiver by Creditor of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Creditor would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Creditor any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative with any rights and remedies under the Note or
any other loan document and may be exercised singly or concurrently, and are not
exclusive of any rights and remedies provided by law or equity.
16. Limitations by Law. 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 all the provisions of this
Agreement are intended to be subject to all applicable mandatory provisions of
law which 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.
-7-
17. Binding Effect. This Agreement and all the covenants and agreements
herein will be binding upon and inure to the benefit of the parties hereto and
their respective successors in interest and assigns. The Creditor shall at all
times have the right to assign its rights and interest under this Agreement.
18. Applicable Law. This Agreement shall be governed by, and be
construed and interpreted in accordance with, the laws of the State of Oklahoma
and the United States.
IN WITNESS WHEREOF the parties have caused this Agreement to be
executed as of the day and year first set forth above.
"GREYSTONE PLASTICS, INC."
By: /s/ Xxxx Xxxxxxxx
-------------------
Name: Xxxx Xxxxxxxx
----------------
Title: President
---------------
"GREYSTONE MANUFACTURING, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
-----------------
Title: Manager
----------------
-8-
All annexes to this agreement are omitted from this Exhibit. The registrant will
furnish supplementally a copy of any omitted annex to the Commission upon
request.
