EXHIBIT 10.7
SECURITY AGREEMENT
BY AND AMONG
OCEAN BIO-CHEM, INC.,
STAR-BRITE DISTRIBUTING, INC.,
STAR BRITE AUTOMOTIVE, INC.,
STAR BRITE DISTRIBUTING (CANADA), INC.
AND KINPACK INC.
AND
REGIONS BANK
DATED AS OF JULY 1, 2002
THIS INSTRUMENT PREPARED BY
XXXX X. XXXXXXX
XXXXXX & XXXXXX, P.C.
P. O. XXX 0000
XXXXXXXXXX, XX 00000-0000
(000) 000-0000
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of July 1, 2002, is entered into by
and among OCEAN BIO-CHEM, INC. ("Ocean"), STAR-BRITE DISTRIBUTING, INC.
("Distributing"), STAR BRITE AUTOMOTIVE, INC. ("Automotive") and STAR BRITE
DISTRIBUTING (CANADA), INC. ("Canada"), corporations organized and existing
under the laws of the State of Florida, KINPAK INC., ("KINPAK") a corporation
organized and existing under the laws of the State of Alabama and REGIONS BANK,
an Alabama banking corporation (the "Bank"). Ocean, Distributing, Automotive,
Canada and KINPAK are herein sometimes referred to as the "Borrowers."
R E C I T A L S:
The Borrowers have requested that the Bank provide to the Borrowers the
following credit facilities (the "Credit Facilities"): (i) a direct-pay
irrevocable letter of credit (the "Substitute Letter") securing the payment of
$4,000,000 Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1997
currently outstanding in the principal amount of $3,280,000 (the "1997 Bonds")
issued by The Industrial Development Board of the City of Xxxxxxxxxx (the
"Board"), (ii) a direct-pay irrevocable letter of credit (the "Letter of
Credit") securing the payment of $3,500,000 Industrial Development Revenue Bonds
(KINPAK INC. Project) Series 2002 (the "2002 Bonds") to be issued by the Board,
and (iii) a revolving working capital line of credit (the "Revolving Line of
Credit") in the maximum amount outstanding at any time of $5,000,000.
The 1997 Bonds were issued pursuant to a Trust Indenture dated as of
December 1, 1996, as amended and supplemented by First Supplemental Trust
Indenture dated as of March 1, 1997 (collectively, the "1997 Indenture") between
the Board and Regions Bank as Trustee (in such capacity the "1997 Trustee"). The
proceeds of the 1997 Bonds were used to refund certain prior revenue bonds of
the Board, the proceeds of which were used to renovate and improve a
manufacturing facility located in Montgomery, Alabama (the "Existing Facility")
and currently leased by the Board to KINPAK pursuant to Restated Lease Agreement
dated as of December 1, 1996, as amended and supplemented by First Supplemental
Lease Agreement dated as of March 1, 1997 (collectively the "1997 Lease"). The
Borrowers have requested that the Bank issue the Substitute Letter in
substitution for the existing letter of credit heretofore issued by First Union
National Bank of Florida securing the 1997 Bonds.
The 2002 Bonds will be issued pursuant to a Trust Indenture dated as of
July 1, 2002 (the "2002 Indenture") between the Board and Regions Bank, as
Trustee (acting in such capacity, the "2002 Trustee"). The Board will use the
proceeds of the 2002 Bonds to finance (i) the construction of an approximately
70,000 square foot addition to the Existing Facility and the acquisition of
certain machinery and equipment for use therein (collectively the "2002
Improvements") and (ii) the payment of a portion of the expenses of issuing the
2002 Bonds. KINPAK and the Board will enter into a Second Supplemental Lease
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Agreement dated as of July 1, 2002 pursuant to which KINPAK will lease the 2002
Improvements from the Board and KINPAK will agree to pay additional rent to the
Board sufficient to pay the debt service on the 2002 Bonds. The Existing
Facility as improved by the 2002 Improvements is herein referred to as the
"Project." Regions Bank when acting in the capacity as both the 1997 Trustee and
2002 Trustee is herein referred to as the "Trustee."
As security for the payment of the 2002 Bonds, the Borrower will cause
the Bank to issue the Letter of Credit in favor of the 2002 Trustee in the
amount of (i) the aggregate principal amount of the 2002 Bonds, to enable the
2002 Trustee to pay the principal amount of the 2002 Bonds when due and to pay
the principal portion of the purchase price of 2002 Bonds tendered (or deemed
tendered) for purchase, plus (ii) interest on the 2002 Bonds for a period of 120
days at the rate of 12% per annum, to enable the 2002 Trustee to pay interest on
the 2002 Bonds when due and to pay the interest portion of the purchase price of
2002 Bonds tendered (or deemed tendered) for purchase.
The Revolving Line of Credit will be made available by the Bank to the
Borrowers pursuant to the terms hereof and the Borrowers will use the moneys
drawn under the Revolving Line of Credit to provide working capital for the
Borrowers' business operations. The obligations of the Borrowers under the
Revolving Line of Credit will be evidenced by a promissory note of the Borrowers
in favor of the Bank dated as of July 1, 2002.
The Substitute Letter, the Letter of Credit and the Revolving Line of
Credit are being issued pursuant to a Credit Agreement dated as of July 1, 2003
by and among the Borrowers and the Bank (the "Credit Agreement").
As security for the Borrowers' obligations under this Agreement with
respect to the Revolving Line of Credit the Borrowers are executing this
Security Agreement (this "Security Agreement") in favor of the Bank, whereby the
Bank is being granted a security interest in all receivables and inventory of
the Borrowers.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the nature and adequacy of which Borrowers and the Bank
acknowledge as sufficient and proper to make this Agreement binding, the parties
hereto, intending to be legally bound, do state and agree as follows:
1. Meaning of terms used herein:
(a) "Account Debtor" means a person or entity who is obligated on
a Receivable.
(b) "Borrowers" means the Borrowers jointly and each of the
Borrowers severally.
(c) "Chattel Paper" means a writing or writings which evidence
both a debt and a security interest in or lease of goods.
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(d) "Contract Rights" means any rights under contracts not yet
earned by performance and not yet evidenced by an Instrument or Chattel
Paper.
(e) "Credit Agreement" shall have the meaning set forth in the
Recitals hereto.
(f) "Credit Facilities" means collectively, the Substitute
Letter, the Letter of Credit, and the Revolving Line of Credit .
(g) "Document" means a xxxx of lading, dock warrant, dock
receipt, warehouse receipt or order for the delivery of goods, and also
any other document which in the regular course of business or financing
is treated as adequately evidencing that the person in possession of it
is entitled to receive, hold and dispose of the Document and the goods
it covers, whether negotiable or non-negotiable.
(h) "Instrument" includes all negotiable instruments, documentary
drafts, Chattel Paper and other writings which evidence a right to
payment of money for goods and inventory sold or leased or for services
rendered.
(i) "Inventory" means all inventory of every nature and
description belonging to the Borrowers wherever located and whether now
owned or in existence or hereafter acquired, held for sale or lease or
to be furnished under contracts of service, and all work in progress,
finished goods, parts, materials and supplies of every nature and
description produced, used or consumed in the Borrowers' business.
(j) "Letter of Credit" shall have the meaning set forth in the
Recitals hereto.
(k) "Letters of Credit" means the Letter of Credit and the
Substitute Letter collectively.
(l) "Line of Credit Obligations" means all indebtedness or
obligations of the Borrowers to the Bank under or related to the
Revolving Line of Credit.
(m) "Receivables" means and includes any and all rights of the
Borrowers to the payment of money or other forms of consideration of
any kind (whether classified under the Uniform Commercial Code as
accounts, contract rights, chattel paper, general intangibles, or
otherwise) including, but not limited to, accounts receivable, letters
of credit and the right to receive payment thereunder, chattel paper,
tax refunds, insurance proceeds, contract rights, notes, drafts,
instruments, documents, acceptances, and all other debts, obligations
and liabilities due Borrowers in whatever form and from whatever person
or entity and further including all cash and noncash proceeds of any of
the foregoing.
(n) "Revolving Line of Credit" shall have the meaning set forth
in the Recitals hereto.
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(o) "Security Interest" means an interest in tangible or
intangible property that secures payment or performance of an
obligation or payment of a liability.
(p) "Substitute Letter " shall have the meaning set forth in the
Recitals hereto.
(q) "Uniform Commercial Code" means the Alabama Uniform
Commercial Code.
2. The Bank is lending, and will from time to time lend, to Borrowers
on terms and in amounts as requested by Borrowers, under and pursuant to the
terms of the Credit Agreement. Borrowers hereby grants to the Bank to secure all
of Borrowers' Line of Credit Obligations under the Credit Agreement, the Credit
Facilities and all documents and instruments securing the same a Security
Interest under the Uniform Commercial Code in all of Borrowers' right, title and
interest in and to each of the following, wherever located and whether now or
hereafter existing or now owned or hereafter acquired or arising (herein
collectively referred to as the "Collateral"):
(a) All Receivables of Borrowers, whether existing at the date of
this Agreement or arising at any time hereafter during the term of this
Agreement;
(b) All Inventory of Borrowers, including all Inventory of the
Borrowers at the date of execution of this Agreement and all Inventory
at any time hereafter acquired by the Borrowers;
(c) All Instruments and Contract Rights, whether now existing or
arising hereafter;
(d) All Documents, policies and certificates of insurance,
securities, Chattel Paper and other documents and instruments
evidencing or pertaining to any and all items of Collateral;
(e) All products and proceeds of any item of Collateral;
(f) All files, correspondence, computer programs, tapes, disks
and related data processing software which contain information
identifying or pertaining to any of the Receivables, the Inventory or
any Account Debtor or showing the amounts thereof or payments thereon
or the collection thereof.
3. Upon an Event of Default, as such term is defined in the Credit
Agreement (an "Event of Default"), the Bank is hereby expressly authorized and
empowered to, in its sole and absolute option and election, take any one or more
of the actions or remedies set forth in Section 7.02 of the Credit Agreement in
order to enable it to realize upon the Collateral, but the Bank shall under no
circumstances be under any duty whatsoever to take any of such actions or
remedies.
4. In confirmation of the Security Interest accorded the Bank in
Borrowers' Receivables and Inventory, Borrowers expressly assign and transfer to
the Bank all Borrowers' existing and future Receivables and Inventory and
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Borrowers will comply with any request for specific written assignments of any
designated Receivables, Inventory, Contract Rights or Instruments which the Bank
might request as further evidence of such assignments (such assignments being in
addition and supplementary to the assignment herein), but all of Borrowers'
existing and future Receivables and Inventory are hereby expressly assigned
without any such specific writing.
5. Borrowers warrant that the Security Interest in the Collateral
herein granted constitutes a valid and perfected first security interest in the
Collateral, subject to no prior or superior lien, security interest or other
encumbrance of any kind whatsoever, except as set forth on Exhibit A hereto, in
respect of any of the Collateral, including any after acquired Collateral. At
such time as the indebtedness is repaid which is secured by the security
interests listed on Exhibit A, Borrowers agree to take such action as is
necessary to obtain the release of such security interests.
6. Borrowers hereby expressly affirm each and every financial or other
covenant in the Credit Agreement. Borrowers hereby further expressly affirm each
and every representation and warranty contained in the Credit Agreement.
7. So long as any Line of Credit Obligation to the Bank is outstanding,
Borrowers will not, without the prior written consent of the Bank, pledge or
grant any security interest in any Receivables, Inventory, Instruments, Contract
Rights or other Collateral to anyone except the Bank, or permit any lien,
security interest, attachment, claim or other encumbrance to attach to any of
the forgoing or permit any levy to be made thereon, or any financing statement
(except the Bank's statement) to be on file with respect thereto.
8. Borrowers warrant that it has, and at all times hereinafter will
have, full power and lawful authority, corporate and other, to pledge, assign,
transfer and grant a security interest in the Collateral in the manner and form
herein done and intended, except as disclosed in writing to the Bank.
9. Borrowers represent that all of its books and records concerning all
of its accounts have their situs in an office located at 0000 X.X. 00xx Xxxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000. Borrowers will immediately advise the Bank in
writing of the opening of any new place of business or of any change in the
location of a place where its books and records concerning its Receivables and
Inventory are kept.
10. Unless the Bank notifies Borrowers in writing that it waives any
one or more of the following requirements, during the term of the Credit
Agreement Borrowers will:
(a) comply with all of the terms and provisions of the Credit
Agreement of even date herewith;
(b) collect its Receivables, including Instruments, and its
Contract Rights only in the ordinary course of business;
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(c) keep accurate and complete records of its Inventory,
Receivables, Instruments, Documents and Contract Rights, and promptly
advise the Bank of any substantial change in the Collateral and of any
occurrence or event which would have a material adverse effect on the
value of the Collateral;
(d) pay and discharge when due all taxes, levies and other
charges on the Collateral, except that Borrowers may defer payment
pending the bona fide contest of any claim unless the Bank shall be of
the opinion that by such action the property of the Borrowers, or any
part thereof shall be materially endangered or shall be subject to loss
or forfeiture, in which event any such payment then due shall not be
deferred;
(e) keep its Inventory insured for the benefit of the Bank (to
whom loss shall be payable) in such amounts, in such companies, and
against such risks as may be reasonably satisfactory to the Bank, pay
the cost of all such insurance, and deliver certificates evidencing
such insurance to the Bank; and
(f) join with the Bank in executing financing statements,
continuation statements, notices, affidavits, or similar instruments in
form satisfactory to the Bank and such other instruments as the Bank
may from time to time request and pay the cost of filing the same in
any public office deemed advisable by the Bank.
11. Borrowers shall promptly notify the Bank of any material claim,
lien, security interest or other encumbrance made or asserted against any of the
Collateral or any suit, action or proceeding affecting any Collateral which may
adversely affect the Security Interest granted under this Agreement, and
Borrowers shall, at their expense, defend the Collateral against any and all
claims, liens, security interests or other encumbrances and any such suit,
action or proceeding.
12. If at any time any warranty, representation, certificate or
statement made to the Bank by Borrowers is not true, or if any Event of Default
shall occur or if Borrowers shall fail to observe or perform any term hereof and
failure to observe or perform shall continue for a period of 30 days after
receipt of notice thereof from the Bank, or such longer period as may be
reasonably necessary to cure such failure so long as the Borrowers are
diligently pursuing such cure, all Line of Credit Obligations of Borrowers
shall, at the election of the Bank, immediately become due and payable, and the
Bank may at any time thereafter in addition to any other rights and remedies
which it may have, immediately and without demand, exercise any and all of the
rights and remedies granted to a secured party upon default under the Alabama
Uniform Commercial Code. If in any event of the sale, lease or other disposition
of the Collateral the proceeds thereof are insufficient to pay all amounts to
which the Bank is legally entitled, Borrowers will be liable for the deficiency,
together with interest thereon, and the reasonable fees of any attorneys
employed by the Bank to collect such deficiency. To the extent permitted by
applicable law, Borrowers waives all claims, damages and demands against the
Bank arising out of the repossession, removal, retention or sale of the
Collateral.
13. Borrowers waive protest of all Instruments at any time held by the
Bank on which Borrowers are in any way liable, notice of nonpayment at maturity
of any and all Receivables, and except where required hereby, notice of action
taken by the Bank; and hereby ratifies and confirms whatever the Bank may
lawfully do in accordance with the terms hereof.
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14. Borrowers release the Bank from any claims for loss or damage
caused by any failure to collect any Receivables or by any act or omission on
the part of the Bank, its officers, agents and employees.
15. The provisions of this Agreement shall be in addition to those of
the Credit Agreement, any note or evidence of liability of Borrowers held by the
Bank or any assignment, pledge or guaranty, all of which shall be construed as
one instrument. To the extent that any of the terms hereof are in conflict with
any of the terms of the Credit Agreement, the terms of the Credit Agreement
shall control.
16. The rights and duties of all parties to this Agreement shall be
governed by the laws of the State of Alabama, particularly the Alabama Uniform
Commercial Code.
17. This Agreement is binding upon all successors, assigns,
transferees, receivers and trustees of each party hereto.
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed and delivered by their duly authorized officers.
OCEAN BIO-CHEM, INC.
(SEAL)
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its President
-------------------
ATTEST:
/s/ Xx Xxxxxx
---------------------------
Its Asst. Secretary
-----------------------
STAR-BRITE DISTRIBUTING, INC.
(SEAL)
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its President
-------------------
ATTEST:
/s/ Xx Xxxxxx
---------------------------
Its Asst. Secretary
-----------------------
STAR BRITE AUTOMOTIVE, INC.
(SEAL)
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its President
-------------------
ATTEST:
/s/ Xx Xxxxxx
---------------------------
Its Asst. Secretary
-----------------------
STAR BRITE DISTRIBUTING (CANADA), INC.
(SEAL)
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its President
-------------------
ATTEST:
/s/ Xx Xxxxxx
---------------------------
Its Asst. Secretary
-----------------------
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KINPAK INC.
(SEAL)
By: /s/ Xxxxx X. Xxxxxx
-------------------
Its President
-------------------
ATTEST:
/s/ Xx Xxxxxx
---------------------------
Its Asst. Secretary
-----------------------
(BORROWERS)
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REGIONS BANK
By: /s/ Xxxxxxx X'Xxxxx
-------------------
Its Vice President
-------------------
(BANK)
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EXHIBIT A
TO
SECURITY AGREEMENT
Such UCC-1 financial statement filings as shall have been approved by the Bank:
None
