EXHIBIT 4.1
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of the 24th day of May, 2002 by and between QUALITY PRODUCTS, INC. a Delaware
corporation ("Buyer"), and XXXXXXX INCORPORATED, an Ohio corporation ("Seller").
RECITAL
Seller desires to sell to Buyer, and Buyer desires to purchase from Seller,
a certain metal milling machine owned by Seller and used in Seller's business,
subject to the terms and conditions of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter contained, the parties hereto agree as follows:
Section 1. SALE AND PURCHASE OF ASSETS. On the terms and subject to the
conditions herein expressed, Seller agrees to sell, transfer, assign and deliver
to Buyer, and Buyer agrees to purchase, acquire and accept from Seller, on and
as of the Closing Date (as defined in Section 4 hereof), all of Seller's right,
title and interest as of the Closing Date in and to that certain metal milling
machine used in Seller's business, which asset is more fully described on
EXHIBIT A attached hereto (the "Mill").
Section 2. RETAINED ASSETS. Other than the Mill, Buyer shall not
purchase or obtain any right, title or interest of Seller in, to or under any of
Seller's assets not described in Section 1, including, without limitation, the
following: Seller's name, cash, accounts receivable, tax returns, advances owed
to Seller, equipment and other fixed assets not described in EXHIBIT A (the
"Retained Assets").
Section 3. PURCHASE PRICE. The purchase price for the Mill shall be
One Hundred Eighty Thousand Dollars ($180,000), to be paid by Buyer to Seller
in thirty-six (36) equal monthly payments of $5,000 beginning July 1, 2002.
Buyer's obligation shall be evidenced by a promissory note in the form attached
hereto as EXHIBIT B (the "Note") and shall be secured by a Security Agreement in
the form attached hereto as EXHIBIT C (the "Security Agreement").
Section 4. THE CLOSING. The transaction contemplated by this Agreement
shall be closed (the "Closing") at the offices of Porter, Wright, Xxxxxx &
Xxxxxx LLP, 41 S. High Street, Columbus, Ohio 4315 on May 24, 2002 (the "Closing
Date"), or such other date or place as the parties may mutually agree.
Section 5. SELLER'S DELIVERIES. Seller shall execute and deliver (or
cause to be delivered) to Buyer the following at Closing:
(a) a certificate of an officer of Seller, dated as of the
Closing Date, to the effect that the representations and warranties made by the
Seller in this Agreement are true and correct as of the Closing;
(b) a copy of the resolutions of the Board of Directors of
Seller approving the consummation of the transaction contemplated by this
Agreement;
(c) a xxxx of sale transferring the Mill;
Section 6. BUYER'S DELIVERIES. Buyer shall deliver the following at
Closing:
(a) a certificate of an officer of Buyer, dated as of the
Closing Date, to the effect that the representations and warranties made by the
Buyer in this Agreement are true and correct as of the Closing;
(b) a copy of the resolutions of the Board of Directors of Buyer
approving this Agreement, the Note, the Security Agreement and consummation of
the transaction contemplated by this Agreement;
(c) the Note;
(d) the Security Agreement; and
(e) the Unit Exemption Certificate referenced in Section 15.
Section 7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
warrants and represents to and covenants with Buyer and its successors and
assigns as follows:
(a) ORGANIZATION AND QUALIFICATION. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio and has all requisite power and authority to own or lease and operate its
properties and assets and to carry on its business as it is now being conducted.
(b) VALIDITY AND EXECUTION. Seller has full legal right,
capacity and power and all requisite authority and approval required to enter
into, execute and deliver this Agreement and to perform fully Seller's
obligations hereunder. This Agreement has been duly executed and delivered by
Seller and constitutes the valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, subject to the qualifications that
enforcement of the rights and remedies created hereby may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and (ii) general
principles of equity.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby will not (1)
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violate or conflict with any provision of the Articles of Incorporation or Code
of Regulations of Seller or (2) result in the creation or imposition of any
encumbrances in favor of any third person or entity upon the Mill.
(d) TITLE TO MILL. Seller has, and pursuant to this Agreement
will convey, sell, transfer and assign to Buyer, good and marketable title to
the Mill, free and clear of liens, encumbrances, encroachments, defects of
title, easements, licenses, covenants, leases, claims of third parties, security
interests, mortgages, deeds of trust, pledges, agreements and rights of others.
Section 8. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
warrants and represents to and covenants with Seller and its successors and
assigns as follows:
(a) ORGANIZATION AND QUALIFICATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority to own or lease and operate
its properties and assets and to carry on its business as it is now being
conducted.
(b) VALIDITY AND EXECUTION. Buyer has full legal right, capacity
and power and all requisite authority and approval required to enter into,
execute and deliver this Agreement and to perform fully Buyer's obligations
hereunder. This Agreement has been duly executed and delivered by Buyer and
constitutes the valid and binding obligation of Buyer enforceable against Buyer
in accordance with its terms, subject to the qualifications that enforcement of
the rights and remedies created hereby may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and (ii) general principles of
equity.
(c) NON-CONTRAVENTION. The execution and delivery of this
Agreement by Buyer and the consummation of Buyer of the transactions
contemplated hereby will not (1) violate or conflict with any provision of the
Articles of Incorporation or By-Laws of Buyer or (2) result in any violation of,
conflict with, or default (or an event which with notice or lapse of time or
both would constitute a default) or loss of a benefit under, or permit the
termination of or the acceleration of any obligation under, any material
mortgage, indenture, lease, agreement or other instrument applicable to Buyer,
or (3) result in the creation or imposition of any encumbrances in favor of any
third person or entity upon any of the assets of Buyer, other than any such
violation, conflict, default, loss, termination or acceleration that would not
have a material adverse effect on its business or financial condition.
(d) BROKERS. Buyer has not used any broker or finder in
connection with the transactions contemplated hereby, and Buyer has not nor will
have any liability or otherwise suffer or incur any loss as a result of or in
connection with any brokerage or finder's fee or other commission of any person
retained by Buyer in connection with any of the transactions
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contemplated by this Agreement. Buyer agrees to indemnify and hold Seller
harmless from the obligations owed to any broker claiming by or through Buyer.
Section 9. REPRESENTATION AND WARRANTIES. All of the representations
and warranties of the parties contained in Sections 7 and 8 shall, survive the
Closing Date and remain in full force and effect for a period of three (3)
years.
Section 10. INDEMNIFICATION OF SELLER. Buyer agrees to defend, indemnify
and hold Seller and its affiliates harmless from any and all liability,
assessment, cost, expense and damage, including reasonable fees for consultants
and attorneys, arising out of or resulting from any and all claims (whether or
not groundless) and liabilities, of whatsoever nature, asserted against Seller
or its affiliates arising out of or resulting from any of the following:
(a) any breach of a warranty or representation made by Buyer in
this Agreement or the non-performance of any covenant or obligation to be
performed by Buyer pursuant to this Agreement;
(b) any liability or obligation of Buyer, including, without
limitation, any liability of Buyer relating to the Mill accruing after the
Closing Date; and
(c) any liability for personal and bodily injury, property
damage or product warranty express or implied, arising or related to the use,
operation or ownership of the Mill after the Closing Date.
The obligations set forth in this Section 10 shall survive the
Closing for a period of three (3) years; except for purposes of Section 13 which
do not expire.
Section 11. INSURANCE. The Buyer agrees to have and maintain insurance
at all times with respect to the Mill in an amount not less than $180,000 (i)
insuring against risks of fire (including so-called extended coverage),
explosion, theft, sprinkler leakage and such other casualties, and (ii) insuring
against liability for personal injury and property damage relating to the Mill,
containing such terms, in such form, for such periods and written by such
companies as may be satisfactory to Seller, such insurance to be payable to
Seller and Buyers as their interests may appear. All policies of insurance shall
provide for twenty (20) days' written minimum cancellation notice to Seller and,
at request of Seller, shall be delivered to and held by Seller.
Section 12. LIMITED WARRANTY. Seller makes no representation or
warranty, express or implied, as to the merchantability or fitness for a
particular purpose of the Mill. Seller warrants that, as of the Closing Date,
the Mill is in good repair and operating condition, ordinary wear and tear
excepted, and free from known defects. Seller agrees to indemnify Buyer for up
to $10,000 with respect to damages incurred by Buyer solely as a result of
Seller's breach of the limited warranty set forth in this Section 12 for the
period of one (1) year following the Closing.
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Section 13. CONTINUING OBLIGATION. Unless Buyer purchases the real
property upon which the Mill is located pursuant to Section 51 of the Property
Lease between Buyer and Seller dated May 24, 2002, in the event that Buyer
removes the Mill from its present location for any reason, Buyer agrees that
Buyer shall cause the floor underneath the Mill (the "Floor") to be repaired or
replaced to the extent necessary, including, but not limited to, the
installation of steel beam supports, to ensure the Floor will support the same
load capacity as the surrounding floor. The extent that Buyer is unwilling or
unable to compete such repair or replacement within sixty (60) days following
the removal of the Mill, Seller shall be permitted to undertake or cause to be
undertaken such repair or replacement at Buyer's expense and Buyer shall become
liable to Seller for the cost of such repair or replacement.
Section 14. EXPENSES. Each party shall be obligated to pay its own
legal, accounting and other fees and expenses incurred with respect to this
Agreement and the transactions contemplated herein.
Section 15. TAXES. Buyer shall bear sole responsibility and liability
for any sales, use, transfer or similar taxes levied as a result of the sale of
the Mill and shall provide such reasonable documentation as Seller may request
with respect to any such taxes. Buyer shall deliver to Seller at closing on Ohio
unit sales tax exemption certificate with respect to the purchase of the Mill.
Section 16. APPLICABLE LAW AND VENUE; JURY WAIVER. This Agreement shall
be construed and enforced in accordance with the laws of the State of Ohio,
without reference to its choice of law rules. All claims arising from or in
connection with this Agreement must be brought exclusively in the federal or
state courts located in Franklin County, Ohio and the parties hereto expressly
consent to such venue. ALL PARTIES TO THIS AGREEMENT WAIVE ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST
ANY OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF, IN CONNECTION WITH OR
IN ANY WAY RELATED TO THIS AGREEMENT.
Section 17. ENTIRE AGREEMENT. This Agreement and its Exhibits, and the
documents to be executed or delivered at the Closing Date in connection
herewith, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof. No representation, warranty, promise, inducement or
statement of intention has been made or relied upon by any party that is not
embodied in this Agreement, and none of the parties shall be bound by, or be
liable for, any alleged representation, warranty, promise, inducement or
statement of intention not embodied herein.
Section 18. CONSTRUCTION. The captions preceding the Sections and
paragraphs in this Agreement have been inserted for convenience only and shall
not be used to modify, expand or
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construe any of the provisions of this Agreement. This Agreement may not be
amended or modified in any way except in a writing signed by each of the parties
hereto.
Section 19. BINDING EFFECT. This Agreement shall be binding upon the
heirs and successors of the respective parties hereto.
Section 20. PARTIES IN INTEREST. Nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties hereto and their
respective heirs, successors and permitted assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any
third persons to any party to this Agreement, nor shall any provision give any
third party any right of subrogation over or action against any party to this
Agreement.
Section 21. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing (including telecopy or similar writing)
and shall be given, if to:
SELLER, to:
Schuler Incorporated
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxxx
Telephone: 000-000-0000
with copies to:
Porter, Wright, Xxxxxx & Xxxxxx, LLP
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx X. XxXxx, Xx., Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
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BUYER, to:
Quality Products, Inc.
000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
with copies to:
Xxxxx and Xxxxxxxxx LLP
Attn: Will Xxxxxxx
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLER: BUYER:
XXXXXXX INCORPORATED QUALITY PRODUCTS, INC.
By: By:
-------------------------------- ---------------------------------
Name: Xxxxxxx X. XxXxxxxxx Name: Xxxxx Xxxxxx
Title: President and CEO Title: President
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EXHIBIT A
PURCHASED ASSET
DESCRIPTION OF MILL:
Cincinnati Floor Mill, 3 axis CNC X = 40', Y = 10', Z = 5'
7" spindle with 20" quill (36" quill travel)
Serial Number 4304-451549-75-001
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EXHIBIT B
NOTE
PROMISSORY NOTE
$180,000 May 24, 2002
FOR VALUE RECEIVED, Quality Products, Inc., a Delaware corporation, (the
"Undersigned") promises to pay to the order of Xxxxxxx Incorporated, an Ohio
corporation, ("Xxxxxxx") the total sum of One Hundred Eighty Thousand Dollars
($180,000), which represents the purchase price as set forth on that certain
Asset Purchase Agreement dated May 24, 2002 between the Undersigned and Xxxxxxx
(the "Asset Purchase Agreement"). The Note shall be paid to Xxxxxxx in
thirty-six (36) equal monthly installments of Five Thousand Dollars ($5,000)
each, said payments to be made on the first day of each calendar month beginning
July 1, 2002 or until the entire amount due on the Note is paid in full. The
term "Holder" as used herein means the holder of this Note, including Xxxxxxx.
Holder shall have the right to impose and the Undersigned agrees to pay a
late charge of five percent (5%) of any payment of principal hereunder that is
more than ten (10) days past due.
All payments of the principal and any interest due on this Note shall be
paid in lawful money of the United States of America to Schuler at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, or at such other place as the Holder may at
any time or from time to time designate in writing to the Undersigned.
Prepayment on this Note shall be permitted without penalty.
Obligor (which term, as used herein, shall include the Undersigned and any
endorser, guarantor, accommodation party and surety of this Note) hereby waives
demand, presentment for payment, protest, notice of dishonor and of protest and
agrees that at any time and from time to time and with or without consideration,
the Holder may, without notice to or further consent of any Obligor and without
in any manner releasing, lessening or affecting the obligations of any Obligor
hereunder (a) release, surrender, waive, add, substitute, settle, exchange,
compromise, modify, extend or grant indulgences with respect to, (i) this Note,
(ii) all or any part of any collateral or security for this Note, and (iii) any
Obligor; and (b) grant any extension or other postponements of time of payment
hereof. The Holder may (without notice to or consent of the Undersigned or any
other Obligor and with or without consideration) release, compromise, settle
with, or proceed against any one or more of the Undersigned or any other Obligor
without releasing, lessening or affecting the obligations hereunder of the other
or others of the Undersigned or any other Obligor.
The occurrence of any one or more of the following events shall constitute
a default under this Note: (a) except with the prior written consent of Xxxxxxx,
which may be withheld for any reason in its discretion, the dissolution,
liquidation or otherwise termination of the existence of the Undersigned; (b)
the occurrence of an event of default under either of the following (i) the
Lease Agreement (equipment) dated May 24, 2002 between the Undersigned and
Xxxxxxx (the "Equipment Lease"); (ii) the Property Lease dated May 24, 2002
between the Undersigned and Xxxxxxx (the "Property Lease") or the Asset Purchase
Agreement; (c) early termination of the Property Lease pursuant to the terms
contained in such agreement; (d) a change of control defined as one of the
following (i) the transfer or sale of fifty percent (50%) or more of the
outstanding securities of the Undersigned, or (ii) the sale of all or
substantially all of the assets of the Undersigned; (e) the failure of the
Undersigned to maintain insurance on the Mill or to otherwise comply with all
covenants, obligations or provisions of the Asset Purchase Agreement; (f) the
failure of the Undersigned to pay any sum when due under this Note; (g) the
failure of the Undersigned to maintain the Mill in good working order and
condition, excepting normal wear and tear; or (h) the Undersigned shall file a
voluntary petition in bankruptcy or seeking reorganization or to effect a plan
or other arrangement with creditors, or shall file an answer admitting the
jurisdiction of the court and the
B - 1
material allegations of an involuntary petition filed pursuant to any act of
Congress relating to bankruptcy or reorganization, or such involuntary petition
is filed and remains undismissed or unstayed for sixty (60) days, or the
Undersigned shall be adjudicated a bankrupt or shall make a general assignment
for the benefit of creditors, or shall apply for or consent to the appointment
of any receiver or trustee for all or a substantial part of the Undersigned's
property or income or any such receiver or trustee shall be appointed and shall
not be discharged within sixty (60) days after the date of such appointment.
Whenever there is a default under this Note, the Holder may, at its option, (i)
declare the unpaid balance of the principal, together, with all unpaid and
accrued late charges thereof (which, when added to all payments previously made
on the Note shall not be less than $180,000), to be immediately due and payable,
and (ii) exercise any or all rights and remedies available to it hereunder or
under applicable law.
If this Note is placed in the hands of an attorney for collection after
maturity (whether by acceleration, declaration, extension or otherwise), the
Undersigned shall pay on demand all costs and expenses of collection including
reasonable attorneys' fees. This Note and all obligations for payment thereunder
shall be secured by such security agreements and guaranties as are listed on
EXHIBIT A attached hereto.
Each right, power and remedy of the Holder hereunder or under applicable
law shall be cumulative and concurrent, and the exercise of any one or more of
them shall not preclude the simultaneous or later exercise by the Holder of any
or all such other rights, powers or remedies. No failure or delay by the Holder
to insist upon the strict performance of any one or more provisions of this Note
or to exercise any right, power or remedy consequent upon a default hereunder
shall constitute a waiver thereof, or preclude the Holder from exercising any
such right, power or remedy. By accepting full or partial payment after the due
date of any amount of principal of or interest on this Note, the Holder shall
not be deemed to have waived the right either to require payment when due and
payable of all other amounts of principal of or interest on this Note or to
exercise any rights and remedies available to it in order to collect all such
other amounts due and payable under this Note. No modification, change, waiver
or amendment of this Note shall be deemed to be made by the Holder unless in
writing signed by the Holder, and each such waiver, if any, shall apply only
with respect to the specific instance involved. This Note shall be governed by
the laws of the State of Ohio.
THE UNDERSIGNED AND EACH OTHER OBLIGOR AGREES THAT ALL CLAIMS, DEFENSES,
COUNTERCLAIMS, AND SUITS OF ANY KIND ARISING FROM OR RELATING TO THIS NOTE MAY
BE BROUGHT IN THE STATE OF OHIO, AND AGREES TO THE NON-EXCLUSIVE JURISDICTION OF
THE OHIO COURTS (INCLUDING THE UNITED STATES DISTRICT COURTS LOCATED IN OHIO) IN
ALL SUCH MATTERS. THE UNDERSIGNED AND EACH OTHER OBLIGOR WAIVES ALL OBJECTIONS
TO VENUE.
IF THIS NOTE IS NOT PAID AT MATURITY (WHETHER BY ACCELERATION, DECLARATION,
EXTENSION OR OTHERWISE), EACH OBLIGOR WHO SIGNS THIS NOTE AND/OR ANY GUARANTY OF
PAYMENT OF THIS NOTE, HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT
OF RECORD WITHIN THE UNITED STATES TO APPEAR FOR EACH SUCH OBLIGOR OR ANY ONE OR
MORE OF THEM IN ANY COURT IN ONE OR MORE PROCEEDINGS OR BEFORE ANY CLERK
THEREOF, AND CONFESS JUDGMENT AGAINST EACH SUCH OBLIGOR, WITHOUT PRIOR NOTICE,
OR OPPORTUNITY TO PRIOR HEARING, IN FAVOR OF THE HOLDER FOR THE THEN UNPAID
BALANCE OF THE PRINCIPAL SUM, WITH INTEREST ACCRUED THEREON AND THE COST OF
SUIT, HEREBY WAIVING AND RELEASING TO THE EXTENT PERMITTED BY LAW ALL ERRORS AND
DEFENSES AND ALL RIGHTS OF EXEMPTION, APPEAL, STAY OF EXECUTION, INQUISITION AND
EXTENSION UPON ANY LEVY ON REAL ESTATE OR PERSONAL PROPERTY TO WHICH EACH SUCH
OBLIGOR MAY OTHERWISE BE ENTITLED UNDER THE LAWS OF THE UNITED
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STATES OR OF ANY STATE OR POSSESSION OF THE UNITED STATES NOW IN FORCE OR WHICH
MAY HEREAFTER BE ENACTED. THE ATTORNEY AUTHORIZED HEREBY TO APPEAR FOR EACH
OBLIGOR MAY BE AN ATTORNEY REPRESENTING HOLDER AND EACH OBLIGOR HEREBY EXPRESSLY
WAIVES ANY CONFLICT OF INTEREST THAT MAY EXIST BY VIRTUE OF SUCH REPRESENTATION.
NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO
EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT
TO BE INVALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED, AND
IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE HOLDER OF THIS NOTE SHALL
ELECT, UNTIL SUCH TIME AS THE HOLDER OF THIS NOTE SHALL HAVE RECEIVED PAYMENT IN
FULL OF ALL INDEBTEDNESS OF THE UNDERSIGNED TO THE HOLDER OF THIS NOTE.
THE UNDERSIGNED AND EACH OTHER OBLIGOR WAIVES ALL RIGHT TO TRIAL BY JURY OF
ALL CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND ARISING FROM OR
RELATING TO THIS NOTE. THE UNDERSIGNED ACKNOWLEDGES THAT THIS IS A WAIVER OF A
LEGAL RIGHT AND THAT IT MAKES THIS WAIVER VOLUNTARILY AND KNOWINGLY. THE
UNDERSIGNED AGREES THAT ALL SUCH CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS SHALL
BE TRIED BEFORE A JUDGE OF A COURT OF COMPETENT JURISDICTION, WITHOUT A JURY.
IN WITNESS WHEREOF, and intending to be legally bound, the Undersigned has
caused this Note to be executed and delivered in the State of Ohio by its duly
authorized officer this 24th day of May, 2002.
QUALITY PRODUCTS, INC.
-------------------------------
By: Xxxxx Xxxxxx
Its: President
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EXHIBIT A
SECURITY AGREEMENTS AND GUARANTIES
Security Agreement of Quality Products, Inc., dated May 24, 2002
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EXHIBIT C
SECURITY AGREEMENT
EQUIPMENT
SECURITY AGREEMENT
This Security Agreement (this "Agreement") is executed as of the 24th day
of May, 2002.
1. GRANT OF SECURITY INTERESTS. Quality Products, Inc., a Delaware
corporation with its principal place of business and chief executive office
located at 000 X. Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxx 00000 (hereinafter
called, the "Company"), for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, hereby grants, pledges and assigns to Xxxxxxx
Incorporated, an Ohio corporation (hereinafter called "Xxxxxxx"), a security
interest in the following property: all of the Company's present and future
interest in the Cincinnati Floor Mill, 3 axis CNC X = 40', Y = 10', Z = 5', 7"
spindle with 20" quill (36" quill travel), Serial Number 4304-451549-75-001,
including additions and accessions thereto (the "Mill"), (the Mill whether under
this Agreement, any security agreement, under any of the other collateral
documents or under any of the other documents executed in connection herewith is
herein termed the "Collateral"), whether the Company's interest therein be as
owner, co-owner, lessee, consignee, secured party or otherwise, and whether the
same be now owned or existing or hereafter arising or acquired, and wherever
located.
The security interest hereby granted is to secure the prompt and full
payment and complete performance of all Obligations of Company to Xxxxxxx. The
word "Obligations" means all present and future indebtedness, debts and
liabilities (including principal, interest, late charges, collection costs,
attorneys' fees and the like) of Company to Xxxxxxx, whether now existing or
hereafter arising, either created by Company alone or together with another or
others, primary of secondary, secured or unsecured, absolute or contingent,
liquidated or unliquidated, direct or indirect, whether evidenced by note,
draft, application for letter of credit or otherwise, and any and all renewals
of or substitutes therefor, arising from or concerning the asset purchase
agreement between Company and Xxxxxxx, dated May 24, 2002 (the "Purchase
Agreement") or promissory note dated May 24, 2002 (the "Note").
This Agreement and the continuing security interest granted hereby, without
limitation, shall extend to all present and future Obligations, whether or not
such Obligations are reduced or entirely extinguished and thereafter increased
or reincurred, whether or not such Obligations are related to the indebtedness
identified above and whether or not such Obligations are specifically
contemplated by Company and Xxxxxxx as of the date hereof. The absence of any
reference to this Agreement in any documents, instruments or agreements
evidencing or relating to any Obligation secured hereby shall not limit or be
construed to limit the scope or applicability of this Agreement.
2. GENERAL COVENANTS. The Company represents, warrants and covenants as
follows:
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(a) Except for the security interests granted hereby or disclosed in
SCHEDULE 2(a) attached hereto (the "Permitted Liens"), (i) the Company is, shall
be, the sole and exclusive owner of the collateral, and the Collateral is and
shall remain free from any and all liens, security interests, encumbrances,
claims and interests; and (ii) no security agreement, financing statement,
equivalent security or lien instrument or continuation statement covering the
Collateral is on file or of record in any public office.
(b) Except for the Permitted Liens and the security interests granted
hereby, the Company shall not create, permit or suffer to exist, and shall take
such action as is necessary to remove, any claim to or interest in or lien or
encumbrance upon the Collateral, and shall defend the right, title and interest
of Xxxxxxx in and to the Collateral against all claims and demands of all
persons and entities at any time claiming the same or any interest therein.
(c) The Company's principal place of business and chief executive
office is located at the address set forth at the beginning of this Agreement;
the Company has no other place of business, except as shown in SCHEDULE 2(c)
attached hereto; and, unless Xxxxxxx consents in writing to a change in the
location of the Collateral prior to such a change in location, the Collateral
shall be kept at 0000 X. Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000.
(d) At least thirty (30) days prior to the occurrence of any of the
following events, the Company shall deliver to Xxxxxxx written notice of such
impending events: (i) a change in the Company's principal place of business or
chief executive office; (ii) the opening or closing of any place of business;
(iii) a change in the Buyer's name, identity or corporate structure, or (iv) a
change in the Company's state of incorporation.
(e) Subject to any limitation stated therein or in connection
therewith, all information furnished by the Company concerning the Collateral or
otherwise in connection with the Obligations, is or shall be at the time the
same is furnished, accurate, correct and complete in all material respects.
(f) The Collateral is and shall be used primarily for business
purposes.
3. INSURANCE. The Company shall have and maintain insurance at all times
with respect to all Collateral (i) insuring against risks of fire (including
so-called extended coverage), explosion, theft, sprinkler leakage and such other
casualties as Xxxxxxx may designate, and (ii) insuring against liability for
personal injury and property damage relating to the Collateral, containing such
terms, in such form, for such periods and written by such companies as may be
satisfactory to Xxxxxxx, such insurance to be payable to Xxxxxxx and the Company
as their interests may appear. All policies of insurance shall provide for
twenty (20) days' written minimum cancellation notice to Xxxxxxx and, at
request of Xxxxxxx, shall be delivered to and held by Xxxxxxx. Xxxxxxx may act
as attorney for the Company in obtaining, adjusting, settling and cancelling
such insurance and indorsing any drafts. In the event of failure to provide
insurance as herein provided, Xxxxxxx may, at its option, provide such insurance
and the Company shall pay to Xxxxxxx, upon demand, the cost thereof. Should the
Company fail to pay said sum to Xxxxxxx
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upon demand, interest shall accrue thereon, from the date of demand until paid
in full, at the highest rate set forth in any document or instrument evidencing
any of the Obligations.
4. INSPECTION. The Company shall, at all reasonable times and from time
to time, allow Xxxxxxx, by or through any of its agents to examine and
inspect such Collateral wherever located.
5. FURTHER ASSURANCES. The Company shall perform, do, make, execute and
deliver all such additional and further acts, things, deeds, assurances and
instruments as Xxxxxxx may require to more completely vest in and assure to
Xxxxxxx its rights hereunder and in or to the Collateral.
7. PRESERVATION AND DISPOSITION OF COLLATERAL.
(a) The Company shall advise Xxxxxxx promptly, in writing and in
reasonable detail, (i) of any material encumbrance upon or claim asserted
against any of the Collateral; (ii) of any material change in the composition of
the Collateral; and (iii) of the occurrence of any other event that would have a
material effect upon the aggregate value of the Collateral or upon the security
interest of Xxxxxxx.
(b) The Company shall not sell or otherwise dispose of the
Collateral; provided, however, that until default, the Company may use the
Collateral in any lawful manner not inconsistent with this Agreement or with the
terms or conditions of any policy of insurance thereon.
(c) The Company shall keep the Collateral in good condition and shall
not misuse, abuse, secrete, waste or destroy any of the same.
(d) The Company shall not use the Collateral in violation of any
statute, ordinance, regulation, rule, decree or order.
(e) The Company shall pay promptly when due all taxes, assessments,
charges or levies upon the Collateral or in respect to the income or profits
therefrom, except that no such charge need be paid if (i) the validity thereof
is being contested in good faith by appropriate proceedings; (ii) such
proceedings do not involve any danger of sale, forfeiture or loss of any
Collateral or any interest therein; and (iii) such charge is adequately reserved
against in accordance with generally accepted accounting principles.
(f) At its option, Xxxxxxx may discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral
and may pay for the maintenance and preservation of the Collateral. The Company
agrees to reimburse Xxxxxxx upon demand for any payment made or any expense
incurred (including reasonable attorneys' fees to the extent permitted by law)
by Xxxxxxx pursuant to the foregoing authorization. Should the Company fail
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to pay said sum to Xxxxxxx upon demand, interest shall accrue thereon, from the
date of demand until paid in full, at the highest rate set forth in any document
or instrument evidencing any of the Obligations.
(g) Upon Xxxxxxx'x request at any time or times, the Company shall
assign and deliver to Xxxxxxx and Collateral and shall furnish to Xxxxxxx
additional collateral of value and character satisfactory to Xxxxxxx as security
for the Obligations.
7. EXTENSIONS AND COMPROMISES. With respect to any Collateral held by
Xxxxxxx as security for the Obligations, the Company assents to all extensions
or postponements of the time of payment thereof or any other indulgence in
connection therewith, to each substitution, exchange or release of Collateral,
to the addition or release of any party primarily or secondarily liable, to the
acceptance of partial payments thereon and to the settlement, compromise or
adjustment thereof, all in such manner and at such time or times as Xxxxxxx may
xxxx advisable. Xxxxxxx shall have no duty as to the collection or protection of
Collateral or any income therefrom, nor as to the preservation of rights against
prior parties, nor as to the preservation of any right pertaining thereto,
beyond the safe custody of Collateral in the possession of Xxxxxxx.
8. FINANCING STATEMENTS. The Company hereby authorizes Xxxxxxx to file
financing statements describing the Collateral, and any necessary future
amendments thereto, in any and all public offices in which the Xxxxxxx deems
such filing to be necessary or desirable. In addition, at the request of
Xxxxxxx, the Company shall join with Xxxxxxx in executing one or more financing
statements in a form satisfactory to Xxxxxxx and shall share equally with
Xxxxxxx in the cost of filing the same in all public offices wherever filing is
deemed by Xxxxxxx to be necessary or desirable. A carbon, photographic or other
reproduction of this Agreement or of a financing statement shall be sufficient
as a financing statement.
9. XXXXXXX'X APPOINTMENT AS ATTORNEY-IN-FACT. The Company hereby
irrevocably constitutes and appoints Xxxxxxx and any agent thereof, with full
power of substitution, as the Company's true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of the Company and
in the name of the Company or in Xxxxxxx'x own name, from time to time in
Xxxxxxx'x discretion, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments that may be necessary or desirable to accomplish the
purposes of this Agreement and, without limiting the generality of the
foregoing, hereby grants to Xxxxxxx the power and right, on behalf of the
Company, without notice to or assent by the Company:
(a) To execute, file and record all such financing statements and
other certificates of registration and operation and similar documents and
instruments, as Xxxxxxx may deem necessary or desirable to protect, perfect and
validate Xxxxxxx'x security interest.
(b) Upon the occurrence and continuance of any event of default under
paragraph 10 hereof, (i) to commence and prosecute any suits, actions or
proceedings at law or
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in equity in any court of competent jurisdiction to collect the Collateral or
any part thereof and to enforce any other right in respect of any Collateral;
(ii) to defend any suit, action or proceeding brought against the Company with
respect to any Collateral; (iii) to settle, compromise or adjust any suit,
action or proceeding described above and, in connection therewith, to give such
discharges or releases as Xxxxxxx may deem appropriate; and (iv) 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 Xxxxxxx were the
absolute owner thereof for all purposes, and to do, at Xxxxxxx'x option and the
Company's expense, at any time or from time to time, all acts and things which
Xxxxxxx deems necessary to protect, preserve or realize upon the Collateral and
Xxxxxxx'x security interest therein, in order to effect the intent of the
Agreement, all as fully and effectively as the Company might do.
The Company 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.
The powers conferred upon Xxxxxxx hereunder are solely to protect its
interests in the Collateral and shall not impose any duty upon Xxxxxxx to
exercise any such powers. Xxxxxxx shall be accountable only for amounts that
Xxxxxxx actually receives as a result of the exercise of such powers and neither
Xxxxxxx nor any of its agents shall be responsible to the Company for any act or
failure to act, except for Xxxxxxx'x own gross negligence or willful misconduct.
10. DEFAULT. If any event of default in the payment of any of the
Obligations or in the performance of any of the terms, conditions, or provisions
of any instrument or document evidencing the Obligations secured by this
Agreement or in the performance of any covenant contained herein shall occur and
be continuing; or if any warranty, representation or statement made or furnished
to Xxxxxxx by the Company proves to have been false in any material respect when
made or furnished; or if Xxxxxxx shall for any reason deem itself insecure as to
the prospect of payment of any of the Obligations:
(a) Xxxxxxx may, at its option and without notice, declare the unpaid
balance of any or all of the Obligations immediately due and payable and this
Agreement and any or all of the Obligations in default.
(b) All payments received by the Company under or in connection with
any of the Collateral shall be held by the Company in trust for Xxxxxxx, shall
be segregated from other funds of the Company and shall forthwith upon receipt
by the Company be turned over to Xxxxxxx in the same form as received by the
Company (duly indorsed by the Company to Xxxxxxx, if required). Any and all such
payments so received by Xxxxxxx (whether from the Company or otherwise) may, in
the sole discretion of Xxxxxxx, be held by Xxxxxxx as collateral security for,
and/or then or at any time thereafter be applied in whole or in part by Xxxxxxx
against, all or any part of the Obligations in such order as Xxxxxxx may elect.
Any balance of
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such payments held by Xxxxxxx and remaining after payment in full of all the
Obligations shall be paid over to the Company or to whomsoever may be lawfully
entitled to receive the same.
(c) Xxxxxxx shall have the rights and remedies of a secured party
under this Agreement, under any other instrument or agreement securing,
evidencing or relating to the Obligations and under the laws of the State of
Ohio. Without limiting the generality of the foregoing, Xxxxxxx shall have the
right to take possession of the Collateral and all books and records relating to
the Collateral and for that purpose Xxxxxxx or its agents may enter upon any
premises on which the Collateral or books and records relating to the Collateral
or any part thereof may be situated and remove the same therefrom. The Company
expressly agrees that Xxxxxxx, without demand of performance or other demand,
advertisement or notice of any kind (except the notices specified below of time
and place of public sale or disposition or time after which a private sale or
disposition is to occur) to or upon the Company or any other person or entity
(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, assign,
give option or options to purchase or sell or otherwise dispose of and deliver
the Collateral (or contract to do so), or any part thereof, in one or more
parcels at public or private sale or sales, at any of Xxxxxxx'x offices or
elsewhere at such prices as Xxxxxxx may deem best, for cash or on credit or for
future delivery without assumption of any credit risk. Xxxxxxx 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 right or equity of redemption in the Company.
The Company further agrees, at Xxxxxxx'x request, to assemble the Collateral and
to make it available to Xxxxxxx at such places as Xxxxxxx may reasonably select,
whether at the Company's premises or elsewhere. The Company further agrees to
allow Xxxxxxx to use or occupy the Company's premises, without charge, for the
purpose of effecting Xxxxxxx'x remedies in respect of the Collateral. Xxxxxxx
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in connection therewith or incidental to the
care or safekeeping of any or all of the Collateral or in any way relating to
the rights of Xxxxxxx hereunder, including reasonable attorneys' fees to the
extent permitted by law and reasonable legal expenses, to the payment in whole
or in part of the Obligations, in such order as Xxxxxxx may elect, and only
after so paying over such net proceeds and after the payment by Xxxxxxx of any
other amount required by any provision of law, shall Xxxxxxx account for the
surplus, if any, to the Company. To the extent permitted by applicable law, the
Company waives all claims, damages and demands against Xxxxxxx arising out of
the repossession, retention, sale or disposition of the Collateral. The Company
agrees that Xxxxxxx need not give more than ten (10) days' notice (which
notification shall be deemed given when mailed, postage prepaid, addressed to
the Company at the Company's address set forth at the beginning of this
Agreement or when telecopied or telegraphed to that address or when telephoned
or otherwise communicated orally to the Company or any agent of the Company at
that address) of the time and place of any public sale or of the time after
which a private sale may take place and that such notice is reasonable
notification of such matters. The Company shall remain liable for any deficiency
if the proceeds
C - 6
of any sale or disposition of the Collateral are insufficient to pay all amounts
to which Xxxxxxx is entitled. The Company shall also be liable for the costs of
collecting any of the Obligations or otherwise enforcing the terms thereof or of
this Agreement including reasonable attorneys' fees to the extent permitted by
law.
11. GENERAL. 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. Xxxxxxx shall not be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by the
Company unless such waiver be in writing and signed by Xxxxxxx. No delay or
omission on the part of Xxxxxxx in exercising any right shall operate as a
waiver of such right or any other right. All of Xxxxxxx'x rights and remedies,
whether evidenced hereby or by any other agreement, instrument or paper, shall
be cumulative and may be exercised singularly or concurrently. Any written
demand upon or written notice to the Company shall be effective when deposited
in the mail addressed to the Company at the address shown at the beginning of
this Agreement. This Agreement and all rights and obligations hereunder,
including matters of construction, validity and performance, shall be governed
by the laws of the State of Ohio. The provisions hereof shall, as the case may
require, bind or inure to the benefit of, the respective heirs, successors,
legal representatives and assigns of the Company and Xxxxxxx.
IN WITNESS WHEREOF, the Company has signed this Agreement as of the
date set forth above.
QUALITY PRODUCTS, INC.
--------------------------------
By: Xxxxx Xxxxxx
Its: President
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SCHEDULE 2(a)
PERMITTED LIENS
None
C - 8
SCHEDULE 2(c)
SCHEDULE OF ADDITIONAL PLACES OF BUSINESS
None
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