EXHIBIT 10.4
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Security Agreement") is made this 30th day
of November 2005 by and between Xxxxx Industries Incorporated, a Delaware
corporation, with an address at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Debtor") and Xxxx Xxxxxxxxx, an individual with an address at
00 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (the "Secured Party").
W I T N E S S E T H:
This Security Agreement is entered into in conjunction with that certain
Subordinated Secured Promissory Note dated the date hereof made by the Debtor in
favor of the Secured Party (the "Note"). Except as otherwise expressly defined
herein, all capitalized terms shall have the meanings ascribed to them in the
Note.
In order to secure payments of all amounts which may become due and owing
to the Secured Party under the Note, the Debtor has agreed to grant to the
Secured Party a continuing security interest in and to all of the property of
the Debtor.
NOW, THEREFORE, in consideration of the premises hereof, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants, representations and warranties
contained herein, the parties hereto agree as follows:
SECTION 1 - SECURITY INTEREST
1.1 Description. As security for the prompt and complete payment and
performance (whether at the stated maturity, by acceleration or otherwise) of
all of the Debtor's obligations under the Note and any and all other obligations
or debts of the Debtor to the Secured Party whether now existing or hereafter
arising, the Debtor hereby assigns and grants to the Secured Party a continuing
security interest in, upon and to all of the tangible and intangible personal
property and fixtures of the Debtor, including without limitation the property
described below, whether now owned or existing or hereafter acquired or arising,
together with any and all additions thereto and replacements therefor and
proceeds and products thereof (hereinafter referred to collectively as the
"Collateral"):
(a) all shares of outstanding capital stock of Air Industries
Machining, Corp. ("AIM") owned by Debtor or its permitted assignees under the
Note (the "Shares");
(b) all of the Debtor's directly or indirectly held tangible
personal property, including without limitation all present and future goods,
inventory (including without limitation all printed materials, merchandise, raw
materials, work in process, finished goods and supplies), equipment,
merchandise, furniture, fixtures, office supplies, motor vehicles, machinery,
paper, tools, computers, and associated equipment now owned or hereafter
acquired, including, without limitation, the tangible personal property used in
the operation of the businesses of the Debtor or of AIM; and
(c) all of the Debtor's other personal property, including, without
limitation, all present and future accounts, accounts receivable, investment
property, deposit accounts, rights to proceeds of letters of credit,
letter-of-credit rights, contract rights, general intangibles (including without
limitation, all goodwill, all trademarks, all other intellectual property to the
extent assignable as collateral, including without limitation all copyrights,
patents and domain names, all customer lists, vendor lists, and other printed
materials, including all catalogs, indexes, lists, data and other documents and
papers relating thereto, blue prints, designs and research and development), any
information stored on any medium, including electronic medium, related to any of
the personal property of the Debtor, all instruments, documents and chattel
paper, all commercial tort claims, all supporting obligations and all debts,
obligations and liabilities in whatever form owing to the Debtor from any
person, firm or corporation or any other legal entity, whether now existing or
hereafter arising, now or hereafter received by or belonging or owing to the
Debtor, and all guaranties and security therefor.
Any of the foregoing terms which are defined in the Uniform Commercial Code of
the State of New York, as in effect from time to time (the "NYUCC") shall have
the meaning provided in the NYUCC as supplemented and expanded by the foregoing.
1.2 Senior Debt.
(a) Permitted Liens. The Debtor shall not create, assume or suffer
to exist any encumbrance upon any of its assets, whether now owned or hereafter
acquired, except as set forth herein, and for Liens (as defined below) (i) to
secure Senior Indebtedness (as defined in the Note), (ii) for taxes or
assessments or other governmental charges not yet due and payable; (iii) pledges
or deposits of money securing statutory obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation (excluding Liens under ERISA), (iv) deposits of money
securing contracts (other than contracts for the payment of money) or leases to
which Debtor is a party; (v) inchoate and unperfected workers', mechanics' or
similar Liens arising in the ordinary course of business; (vi) carriers;
warehousemen's, suppliers or other similar possessory Liens arising in the
ordinary course of business; (vii) deposits securing or in lieu of security,
appeal or customs bonds in proceedings to which Debtor is a party; and (viii)
capital leases and purchase money security interests ("Permitted Liens"). For
purposes of this Agreement, "Lien" shall mean any interest of any kind or nature
in property securing an obligation owed to, or a claim of any kind or nature in
property by, a Person other than the owner of the property, whether such
interest is based on the common law, statute, regulation or contract, and
including, but not limited to, a judgment, security interest or lien arising
from a mortgage, encumbrance, pledge, conditional sale or trust receipt, a
lease, consignment or bailment for security purposes, a trust, or an assignment.
(b) Subordination. The payment of the Note is subordinate and junior
in right of payment to the prior payment of the Debtor's Senior Indebtedness
pursuant to the subordination provisions contained in the Note. The Secured
Party shall, from time to time after the date hereof, at Debtor's expense,
execute and deliver any instrument and take such additional actions reasonably
requested by the Debtor to confirm or evidence the subordination referenced
hereby.
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(c) Relative Rights. The subordination provisions of the Note are for the
purpose of defining the relative rights of the holders of Senior Indebtedness
and the Secured Party against the Debtor and its property. Nothing herein or in
the Note or the agreements and other documents evidencing the Senior
Indebtedness or creating or granting any Lien securing the Senior Indebtedness
shall impair, as between the Secured Party and the Debtor, the obligation of the
Debtor to pay to the Secured Party the amounts due under the Note in accordance
with the terms and the provisions thereof and hereof; nor shall anything herein
prevent the Secured Party from exercising all remedies otherwise permitted by
applicable law, either by suit in equity or by action at law, or both, upon
default under the Note.
1.3 Lien Documents. As the Secured Party reasonably deems necessary, the
Debtor shall execute and deliver to the Secured Party, or have executed and
delivered:
(a) Financing Statements. Financing statements, including without
limitation any continuation statements and fixture filings, pursuant to the
Uniform Commercial codes of the applicable jurisdictions in effect at the
applicable times, which the Secured Party shall (and is hereby authorized to)
file or record, as the case may be, in the jurisdiction where the Debtor is
incorporated and in any other jurisdiction that the Secured Party deems
appropriate; and
(b) Other Agreements. Any other agreements, documents, instruments
and writings as the Secured Party may reasonably request from time to time to
evidence, perfect or protect the Secured Party's Lien and security interest in
the Collateral.
1.4 Other Actions. In addition to the foregoing, the Debtor shall do
anything further that may be lawfully and reasonably required by the Secured
Party to perfect the security interest and Liens in the Collateral granted
hereunder to the Secured Party, and to preserve the priority of such security
interest and Liens and effectuate the intentions and objects of this Agreement,
including, without limitation, the execution and delivery of continuation
statements, amendments to financing statements, and any other documents required
hereunder. At the Secured Party's request, the Debtor shall also immediately
deliver to the Secured Party all items constituting Collateral for which the
Secured Party must receive possession to obtain a perfected security interest,
including, without limitation, all notes, certificates and documents of title,
Chattel Paper, Instruments, and the Shares, any other similar instruments
constituting Collateral. Notwithstanding the foregoing, Debtor shall not be
obligated to deliver to Secured Party any item constituting collateral that is
in the possession of the holders of the Senior Indebtedness; provided that
Debtor shall exercise commercially reasonable efforts to cause the holder of any
Senior Indebtedness in possession of any item of collateral to hold such item as
agent of Secured Party.
SECTION 2 - REPRESENTATIONS AND WARRANTIES
2.1 The Debtor represents and warrants that:
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(a) This Agreement is effective to create in favor of the Secured
Party legal, valid and enforceable Liens and security interests in all of the
Debtor's right, title and interest in the Collateral, and when financing
statements have been filed, Secured Party will have a valid and perfected Lien
and security interest in and to the Collateral as to which perfection can be
obtained by the filing of a financing statement, superior in right to any and
all other Liens, existing or future, other than the Permitted Liens.
(b) The address shown at the beginning of this Agreement is the
current principal place of business of the Debtor, and all of the Debtor's
current additional places of business, if any, and the locations of all of the
Collateral currently are listed in Schedule I attached hereto. The Debtor will
not change its principal or any other place of business, or the location of any
Collateral from the locations set forth in Schedule I, or make any change in the
Debtor's name or conduct the Debtor's business operations under any fictitious
business name or trade name, without, in any such case, at least thirty (30)
days' prior written notice to the Lender.
(c) The Debtor is the sole owner of and has good and marketable
title to each item of Collateral, free and clear of all Liens other than the
Permitted Liens and the Liens and security interests in the Collateral granted
hereunder to the Secured Party.
(d) No security agreement, financing statement, equivalent security
or lien instrument on continuation statement covering all or part of the
Collateral is on file or of record in any public office, except (i) as may have
been filed by the Debtor in favor of the Secured Party pursuant to this
Agreement, (ii) as permitted to exist with respect to the Permitted Liens, or
(iii) such documents or instruments which remain on file or of record but which
relate to Liens or security interests which the Debtor hereby represents and
warrants have been fully discharged and terminated.
SECTION 3 - COVENANTS
3.1 The Debtor covenants that until all of its obligations under the Note
are completely and indefeasibly satisfied in full, that:
(a) The Debtor shall give thirty (30) days prior written notice to
the Secured Party of any change in the location of any Collateral from that set
forth in Schedule I or of any change of its current principal place of business.
(b) Except for Collateral that is obsolete or no longer used in the
Debtor's business, the Debtor will keep the Collateral in good order and repair
(normal wear excepted) and adequately insured at all times. The Debtor will pay
promptly when due all taxes and assessments on the Collateral or for its use or
operation, except for taxes and assessments contested in good faith and for
which adequate reserves are created. The Secured Party may at its option
discharge any taxes, liens, security interests or other encumbrances to which
any Collateral is at any time subject, and may, upon the failure of the Debtor
to do so in accordance with the terms hereof, purchase insurance on any
Collateral and pay for the repair, maintenance or preservation thereof, and the
Debtor agrees to reimburse the Secured Party on demand for any payments or
expenses incurred by the Secured Party pursuant to the foregoing authorization
and any unreimbursed amounts shall constitute obligations for all purposes
hereof.
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(c) The Debtor will not enter into any transaction with, including,
without limitation, the purchase, sale or exchange of property or the rendering
of any service to any of its affiliates, except in the ordinary course of, and
pursuant to the reasonable requirements of, the Debtor's business and upon fair
and reasonable terms no less favorable to the Debtor than could be obtained in a
comparable arm's-length transaction with an unaffiliated person or entity.
(d) The Debtor shall advise the Secured Party promptly upon the
Debtor becoming aware that it owns any commercial tort claims. With respect to
any commercial tort claim, the Debtor will execute and deliver such documents as
the Secured Party deems necessary to create, perfect and protect his security
interest and Lien in such commercial tort claim.
SECTION 4 - REMEDIES
4.1 Rights and Remedies on Default. Subject to any and all rights of the
holders of the Debtor's Senior Indebtedness pursuant to the Note, the Secured
Party may, following the occurrence of an Event of Default (as defined in the
Note), exercise rights and remedies of a secured party granted to it under the
Uniform Commercial Code of any applicable jurisdiction and may exercise all
rights and remedies under any other applicable law, including, without
limitation, the following rights and remedies:
(a) the right to take possession of, send notices, sell and collect
directly all or any part of the Collateral, with or without judicial process
(including, without limitation, the right to notify the United States postal
authority to redirect all mail addressed to the Debtor to an address designated
by the Secured Party);
(b) by its own means or with judicial assistance, enter the Debtor's
or AIM's premises and take possession of all or any part of the Collateral, or
render it unusable, or dispose of or realize upon all or in part of the
Collateral in any order desired by the Secured Party on such premises without
any liability for rent, storage, utilities or other sums, and the Debtor shall
not resist or interfere with such action; and
(c) require the Debtor, at the Debtor's expense, to assemble all or
any part of the Collateral and make it available to the Secured Party at any
place designated by the Secured Party.
The Debtor hereby agrees that a notice received by it at least ten (10) days
before the time of any intended public sale or of the time after which any
private sale or other disposition of the Collateral is to be made, shall be
deemed to be reasonable notice of such sale or other disposition. If permitted
by applicable law, any perishable inventory or Collateral which threatens to
speedily decline in value or which is sold on a recognized market may be sold
immediately by the Secured Party without prior notice to the Debtor. The Secured
Party shall have the right upon any such public sale or sales and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or
any part of the Collateral so sold free of any equity or right of redemption
which the Debtor hereby waives. The Debtor covenants and agrees not to interfere
with or impose any obstacle to the Secured Party's exercise of its rights and
remedies with respect to the Collateral after the occurrence of an Event of
Default.
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4.2 Intellectual Property License. The Debtor hereby assigns, transfers
and conveys to the Secured Party, effective upon the occurrence and during the
continuance of any Event of Default, the non-exclusive right and license to use
all intellectual property owned or used by the Debtor together with any goodwill
associated therewith, all to the extent necessary to enable the Secured Party to
realize on the Collateral and any successor or permitted assign to enjoy the
benefits of the Collateral. This right and license shall insure to the benefit
of all successors, assigns and transferees of the Secured Party, whether by
voluntary conveyance, operation of law, assignment, transfer, foreclosure, deed
in lieu of foreclosure or otherwise. Such right and license is granted free of
charge and does not require the consent of any other person.
4.3 Nature of Remedies. Subject to any and all rights of the holders of
the Debtor's Senior Indebtedness, the Secured Party shall have the right to
proceed against all or any portion of the Collateral in any order. All rights
and remedies granted the Secured Party hereunder and under any agreement
referred to herein, or otherwise available at law or in equity, shall be deemed
concurrent and cumulative, and not alternative remedies, and the Secured Party
may proceed with any number of remedies at the same time until all existing and
future obligations under the Note are completely and indefeasibly satisfied in
full. The exercise of any one right or remedy shall not be deemed a waiver or
release of any other right or remedy, and the Secured Party, upon the occurrence
of an Event of Default, may proceed against the Debtor, and/or the Collateral,
at any time, under any agreement, with any available remedy and in any order.
SECTION 5 - MISCELLANEOUS
5.1 Notices. All notices, requests, demands or other communications which
are required to be or may be given or permitted hereunder shall be in writing
and shall be deemed to have been duly given when delivered in person or after
dispatch by a recognized overnight courier to the appropriate party to whom the
same is so given or made:
To Holder at: Xxxx Xxxxxxxxx
00 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
With copies to: Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
To Company at: Xxxxx Industries Incorporated
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000
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or to such other address as a party has designated by notice in writing to the
other party in the manner provided by this Section. All such notices, requests,
demands or other communications shall be deemed to have been received on the
date of delivery thereof (if delivered by hand) and on the next day after
sending thereof (if by overnight courier).
5.2 Amendments and Waivers. This Agreement may be amended, modified or
supplemented by the parties hereto, provided that any such amendment,
modification or supplement shall be in writing and signed by both parties. No
waiver with respect to this Agreement shall be enforceable against either party
unless in writing and signed by such party. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by either party, and no course of
dealing between the parties, shall constitute a waiver of, or shall preclude any
other or further exercise of the same or any other right, power or remedy.
5.3 Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and inure to the benefits of the parties hereto
and their respective successors, heirs and permitted assigns, including without
limitation holders from time to time of the Note.
5.4 Severability. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
5.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute an
original hereof, and it shall not be necessary in making proof of this Agreement
to produce or account for more than one original counterpart hereof.
5.6 Section Headings. The section and subsection headings in this
Agreement are for convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
5.7 Governing Law; Submission to Jurisdiction; Service of Process; Jury
Trial. This Agreement shall be governed by and construed in accordance with the
law of the State of New York without regard to conflict of law provisions. Any
legal suit, action or proceeding arising out of or based upon this Agreement
shall be instituted in any federal or state court only in the City and County of
New York, State of New York. The aforementioned choice of venue is intended to
be mandatory and not permissive in nature, thereby precluding the possibility of
litigation arising out of this Agreement in any jurisdiction other than that
specified in this Section. The Debtor and the Secured Party each waive, to the
fullest extent permitted under applicable law, any right it may have to assert
the doctrine of forum non conveniens or similar doctrine or to object to venue
with respect to any proceeding brought in accordance with this Section, and
stipulates that the state and federal courts located in the City and County of
New York, State of New York, shall have in personam jurisdiction and venue over
them for the purpose of litigation any dispute, controversy or proceeding
arising out of or related to this Note. The Debtor and the Secured Party further
agree that a summons and complaint commencing an action or proceeding in any of
the aforementioned courts shall be properly served and shall confer personal
jurisdiction if served personally or by overnight courier to each party at its
address provided in Section 5.1 hereof.
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5.8 Limitations on the Secured Party's Duty in Respect of the Collateral.
Beyond the safe custody thereof, the Secured Party shall not have any duty as to
the Collateral in his possession or control or in the possession or control of
any of his agents or nominees or any income thereof or as to the preservation of
rights against prior parties or any other rights pertaining thereto. Neither the
Secured Party nor any of his agents shall be liable or responsible for any loss
or damage to any of the Collateral, or for any diminution in the value thereof,
by reason of the act or omission of any warehouse, carrier, forwarding agency,
consignee, broker or other agent or bailee selected by the Debtor or any of its
agents or selected by the Secured Party or any of his agents in good faith.
5.9 Costs and Expenses. The Debtor shall reimburse the Secured Party for
all reasonable costs and expenses, including without limitation reasonable
attorneys' fees and expenses, incurred in connection with (i) drafting,
negotiating, executing and delivering any amendment, modification or waiver of,
or consent with respect to, any matter relating to the rights of the Secured
Party under this Agreement or the Note; (ii) creating, perfecting and
maintaining perfection of the Liens and security interests in the Collateral in
favor of the Secured Party; and (iii) enforcing any provision of this Agreement
or the Note and/or collecting any amounts due under the Note.
5.10 Waiver of Presentment. Demand. Etc.. To the fullest extent permitted
by applicable law, the Debtor expressly waives presentment, demand, protest,
notice of dishonor, notice of non-payment, notice of maturity, notice of
protest, presentment for the purpose of accelerating maturity of the obligations
under the Note, diligence in collection, and the benefit of any exemption or
insolvency laws.
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered as of the date first above written.
DEBTOR:
XXXXX INDUSTRIES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Chairman
SECURED PARTY:
/s/ Xxxx Xxxxxxxxx
------------------
Xxxx Xxxxxxxxx
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