EXHIBIT 10.2
SECURITY AGREEMENT
SECURITY AGREEMENT made by OVATION PRODUCTS CORPORATION, a Delaware
corporation (the "Debtor"), in favor of ANDLINGER & COMPANY, INC., a Delaware
corporation (the "Secured Party"). Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Senior Secured Convertible Note
Purchase Agreement (the "Purchase Agreement"). In consideration of the agreement
of Secured Party to purchase the Note from the Debtor subject to the terms and
conditions set forth in the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Debtor and the Secured Party agree as follows:
1. Grant of Security Interest. As collateral security for the payment
and performance when due of all Obligations (defined below), the Debtor hereby
collaterally assigns, mortgages, and pledges to Secured Party, and hereby grants
to Secured Party a continuing security interest in and right of setoff against,
all of the Debtor's right, title and interest in, to and under the Collateral
(defined below).
"Collateral" means all the Debtor's present and future right, title and
interest in and to any of the following property, wherever located and
whether now owned or hereafter acquired (together with all other
collateral security for the Obligations at any time granted to or held
or acquired by Secured Party): All of the Debtor's tangible and
intangible personal property, including without limitation, all
inventory, equipment and other goods, all accounts receivable, notes,
drafts, acceptances, instruments and documents, chattel paper, general
intangibles (including, without limitation, Intellectual Property
(hereinafter defined)), deposit accounts (and all monies, credit
balances, deposits and other property of Debtor now or hereafter held
or received by or in transit to Secured Party or at any depositary or
other institution from or for the account of Debtor, whether for
safekeeping, pledge, custody, transmission, collection or otherwise),
investment property, commercial tort claims, letters of credit and
banker's acceptances, books and records, and all cash and non-cash
proceeds of the foregoing in whatever form received, including without
limitation insurance proceeds and claims against third parties for loss
or damage to or destruction of or other involuntary conversion of any
kind or nature of any or all of the other Collateral, but excluding
rights (other than payment rights) under agreements to the extent that
the inclusion of such rights would cause a default by the Debtor under
the terms of any agreement in effect on the date hereof. Any of the
foregoing terms which are specifically defined in the Uniform
Commercial Code as in effect in the State of New York shall have the
meanings given therein on the date hereof ("UCC").
"Intellectual Property" shall mean Debtor's now owned and hereafter
arising or acquired: patents, patent rights, patent applications,
copyrights, works which are the subject matter of copyrights, copyright
registrations, trademarks, trade names, trade styles, trademark and
service xxxx applications, and licenses and rights to use any of the
foregoing; all extensions, renewals, reissues, divisions,
continuations, and continuations-in-part of any of the foregoing; all
rights to xxx for past, present and future infringement of any of the
foregoing; inventions, trade secrets, formulae, processes, compounds,
drawings, designs, blueprints, surveys, reports, manuals, and operating
standards; goodwill (including any goodwill associated with any
trademark or the license of any trademark); customer and other lists in
whatever form maintained; and trade secret rights, copyright rights,
rights in works of authorship, domain names and domain name
registrations; software and contract rights relating to software, in
whatever form created or maintained.
"Lien" means any interest in an asset or encumbrance thereon of any
kind held by any person other than the owner of the asset, irrespective
of whether (a) such interest is based on the common law, statute, or
contract, (b) such interest is recorded or perfected, and (c) such
interest is contingent upon the occurrence of some future event or
events or the existence of some future circumstance or circumstances.
"Obligations" means any and all payment obligations of every kind,
nature and description of the Debtor to Secured Party, including,
without limitation, principal, interest, charges, fees, costs and
expenses, however evidenced, whether as principal, surety, endorser,
Debtor or otherwise, now existing or hereafter arising, direct or
indirect, absolute or contingent, due or to become due, primary or
secondary, secured or unsecured, liquidated or unliquidated, that
Debtor is required to pay or reimburse under the Purchase Agreement,
the Note or under the other Transaction Documents, whether arising
after the commencement of any case with respect to Debtor under the
United States Bankruptcy Code or any similar statute (including the
payment of interest and other amounts which would accrue and become due
but for the commencement of such case, whether or not such amounts are
allowed or allowable in whole or in part in such case) and any and all
performance obligations contained in Sections 8(a)(ii), (iii), (v),
(vii), (ix), (xvi), (xvii), (xviii), (xix), (xxi), (xxii) or 8(b) of
the Purchase Agreement, to the extent the non performance of such
obligations would cause an Event of Default (as such term is defined in
the Note).
"Permitted Liens" means (a) Liens held by Secured Party to secure the
Obligations (as such term is defined herein), (b) Liens for unpaid
taxes, assessments, or other governmental charges or levies that are
not yet delinquent, (c) judgment Liens which could not reasonably be
expected to result in a Collateral Material Adverse Effect, (d) the
interests of lessors under operating leases, (e) purchase money Liens
and so long as such Lien attaches only to the
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asset purchased or acquired and the proceeds thereof, (f) Liens
arising by operation of law in favor of warehousemen, landlords,
carriers, mechanics, materialmen, laborers, or suppliers, incurred
in the ordinary course of the Debtor's business and not in
connection with the borrowing of money, and which Liens are for sums
not yet delinquent, (g) Liens on amounts deposited in connection
with obtaining worker's compensation or other unemployment
insurance, (h) Liens on amounts deposited in connection with the
making or entering into of bids, tenders, or leases in the ordinary
course of business and not in connection with the borrowing of
money, (i) Liens on amounts deposited as security for surety or
appeal bonds in connection with obtaining such bonds in the ordinary
course of business, and (j) non-exclusive licenses or sublicenses
granted to other Persons for fair market value consideration in the
ordinary course of business and not materially interfering with the
conduct of the Debtor's business. "Transaction Documents" shall mean
this Agreement, the Purchase Agreement, the Note, that certain
Patent Security Agreement dated as of even date hereof by Debtor and
that certain Trademark Security Agreement dated as of even date
hereof by Debtor.
"UCC" shall have the meaning set forth in the definition of Collateral
above.
2. Perfection of Security Interests.
(a) Debtor irrevocably and unconditionally authorizes Secured
Party (or its agent) to file at any time and from time to time such financing
statements with respect to the Collateral naming Secured Party or its designee
as the secured party and Debtor as debtor, as Secured Party may require, and
including any other information with respect to Debtor or otherwise required by
part 5 of Article 9 of the Uniform Commercial Code of such jurisdiction as
Secured Party may determine, together with any amendment and continuations with
respect thereto, which authorization shall apply to all financing statements
filed on, prior to or after the date hereof. Debtor hereby ratifies and approves
all financing statements naming Secured Party or its designee as secured party
and Debtor as debtor with respect to the Collateral (and any amendments with
respect to such financing statements) filed by or on behalf of Secured Party
prior to the date hereof and ratifies and confirms the authorization of Secured
Party to file such financing statements (and amendments, if any). In no event
shall Debtor at any time file, or permit or cause to be filed, any correction
statement or termination statement with respect to any financing statement (or
amendment or continuation with respect thereto) naming Secured Party or its
designee as secured party and Debtor as debtor, except as provided in Section
9-509(d) of the UCC.
(b) Debtor shall take any other actions reasonably requested
by Secured Party from time to time and necessary to cause the attachment,
perfection and first priority of, and the ability of Secured Party to enforce
the security interest of Secured Party in, any and all of the Collateral,
including, without limitation, (i) executing, delivering and, where appropriate,
filing financing statements and amendments relating thereto under the UCC or
other applicable law, to the extent, if any, that Debtor's
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signature thereon is required therefor, (ii) causing Secured Party's name to be
noted as secured party on any certificate of title for a titled good if such
notation is a condition to attachment, perfection or priority of, or ability of
Secured Party to enforce, the security interest of Secured Party in such
Collateral, (iii) complying with any provision of any statute, regulation or
treaty of the United States as to any Collateral if compliance with such
provision is a condition to attachment, perfection or priority of, or ability of
Secured Party to enforce, the security interest of Secured Party in such
Collateral, (iv) using its best efforts to obtain the consents and approvals of
any Governmental Authority or third party, including, without limitation, any
consent of any licensor, lessor or other person obligated on Collateral, and
taking all actions required by any earlier versions of the UCC or by other law,
as applicable in any relevant jurisdiction.
3. Secured Party's Rights and Obligations. Debtor shall remain liable
under all accounts receivable, instruments and documents and general
intangibles. Secured Party shall not have any obligation or liability under any
accounts receivable, instruments and documents or general intangibles by reason
of this Security Agreement or the exercise of Secured Party's rights and
remedies hereunder, nor shall Secured Party be required to perform the Debtor's
obligations pursuant thereto. Secured Party shall have no obligation to inquire
as to the sufficiency of any payment received by it on account of any of
Debtor's accounts receivable or to take any action to collect or enforce the
payment of any account receivable.
4. Insurance. Debtor shall, upon the written request of the Secured
Party and at all times thereafter, maintain with financially sound and reputable
insurers adequate insurance with respect to the Collateral. In addition to such
requirements, the Debtor shall use its best efforts to comply with each of the
following requirements set forth in (a)-(c) below:
(a) Debtor shall furnish certificates, policies or
endorsements to Secured Party as Secured Party shall require as proof of such
insurance, and, if Debtor fails to do so, Secured Party is authorized, but not
required, to obtain such insurance at the expense of Debtor;
(b) All policies shall provide for at least thirty (30) days
prior written notice to Secured Party of any cancellation or reduction of
coverage and that Secured Party may act as attorney for Debtor in obtaining, and
at any time an Event of Default exists or has occurred and is continuing,
adjusting, settling, amending and canceling such insurance; and
(c) Debtor shall cause Secured Party to be named as a loss
payee and an additional insured (but without any liability for any premiums)
under such insurance policies and Debtor shall obtain non-contributory lender's
loss payable endorsements to all insurance policies in form and substance
satisfactory to Secured Party (such lender's loss payable endorsements shall
specify that the proceeds of such insurance shall be payable to Secured Party as
its interests may appear and further specify that Secured Party shall be paid
regardless of any act or omission by Debtor or any of its affiliates).
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At its option, Secured Party may apply any insurance proceeds received by
Secured Party at any time to the cost of repairs or replacement of Collateral
and/or to payment of the Obligations, whether or not then due, in any order and
in such manner as Secured Party may determine or hold such proceeds as cash
collateral to secure the Obligations.
5. Further Assurances. At Secured Party's request from time to time,
the Debtor will execute and deliver or cause to be executed and delivered any
and all such further agreements, instruments and documents and take such further
actions as Secured Party may reasonably deem desirable to evidence, perfect,
maintain and enforce the Secured Party's security interests and the priority
thereof in the Collateral and to otherwise effectuate the provisions or purposes
of this Security Agreement and the other Transaction Documents.
6. Events of Default. The following shall each constitute an Event of
Default hereunder:
(a) occurrence of any Event of Default as defined in the Note;
and
(b) any failure of Debtor in the performance in any material
respect of any of the terms or conditions of, or any breach of any material
representation, covenant or warranty under, or any other material default under
this Agreement.
7. Remedies Upon Default.
(a) Upon the occurrence and during the continuance of any
Event of Default, and subject to (and without limitation of) the terms of the
Note and the Purchase Agreement (including, without limitation, the cure periods
(if any) with respect to such Events of Default set forth therein):
(i) Secured Party may declare all Obligations secured
hereby immediately due and payable and shall have all of the rights and remedies
of a secured party under the UCC or under other applicable law.
(ii) Secured Party may notify Debtor's account or
contract debtors (or other obligors whose obligations to Debtor secure this
agreement) of Secured Party's security interest and that such account or
contract debtors are to make payments directly to Secured Party. Secured Party
may send this notice in Debtor's name or in Secured Party's name, and at Secured
Party's request Debtor will join in Secured Party's notice, provide written
confirmation of Secured Party's security interest and request that payment be
sent to Secured Party. Secured Party may enforce this obligation by specific
performance. Secured Party may collect all amounts due on the accounts and
accounts receivable. Upon and after notification by Secured Party to Debtor
pursuant to this Section 7(a)(ii), Debtor shall hold any proceeds and
collections of any of the Collateral in trust for Secured Party and shall not
commingle such proceeds or collections with any other of Debtor's funds, and
Debtor shall deliver all such proceeds to Secured Party immediately upon
Debtor's receipt thereof in the identical form received and duly endorsed or
assigned to Secured Party.
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(iii) with or without judicial process or the aid or
assistance of others, Secured Party may enter upon any premises on or in which
any of the Collateral may be located and take possession of the Collateral or
complete processing, manufacturing and repair of all or any portion of the
Collateral.
(iv) Secured Party may collect, foreclose, receive,
appropriate, setoff and realize upon any and all Collateral, which shall be
applied against the Obligations.
(v) Secured Party may remove any or all of the
Collateral from any premises on or in which the same may be located for the
purpose of effecting the sale, foreclosure or other disposition thereof for
application against the Obligations.
(vi) Secured Party may sell, lease, transfer, assign,
deliver or otherwise dispose of any and all Collateral (including entering into
contracts with respect thereto, public or private sales at any exchange,
broker's board, at any office of Secured Party or elsewhere) at such prices or
terms as Secured Party may deem reasonable, for cash, upon credit or for future
delivery, with the Secured Party having the right to purchase the whole or any
part of the Collateral at any such public sale, all of the foregoing being free
from any right or equity of redemption of Debtor, which right or equity of
redemption is hereby expressly waived and released by Debtor.
(vii) At the request of Secured Party, the Debtor
shall cause the Collateral, or such portion of the Collateral as Secured Party
may direct, to be assembled for Secured Party at such location (including,
without limitation, Debtor's business address) as Secured Party may request.
(viii) Secured Party may exercise any other rights
and remedies that it may have under the other Transaction Documents.
(b) If any of the Collateral is sold or leased by Secured
Party upon credit terms or for future delivery, the Obligations shall not be
reduced as a result thereof until payment therefor is finally collected by
Secured Party. If notice of disposition of Collateral is required by law, ten
(10) days prior notice by Secured Party to Debtor designating the time and place
of any public sale or the time after which any private sale or other intended
disposition of Collateral is to be made, shall be deemed to be reasonable notice
thereof and Debtor waives any other notice. In the event Secured Party
institutes an action to recover any Collateral or seeks recovery of any
Collateral by way of prejudgment remedy, Debtor waives the posting of any bond
which might otherwise be required. Any such sale may take place from Debtor's
location or such other location as Secured Party may designate.
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(c) Debtor hereby irrevocably appoints Secured Party as its
true and lawful attorney-in-fact with full power of substitution, effective upon
the occurrence and continuation of an Event of Default, to take any of the
foregoing actions set forth in this Section in the name of the Debtor to carry
out the terms of this Agreement and to protect, enforce, preserve or perfect
Secured Party's rights hereunder and under the other Transaction Documents. Such
power of attorney is irrevocable until this Agreement is terminated and shall be
deemed to be coupled with an interest.
(d) For the purpose of enabling Secured Party to exercise the
rights and remedies hereunder and only for such purpose, effective upon the
occurrence and during the continuance of an Event of Default, Debtor hereby
grants to Secured Party, to the extent assignable, an irrevocable, non-exclusive
license (exercisable without payment of royalty or other compensation to Debtor)
to use, assign, license or sublicense any of the trademarks, service-marks,
trade names, business names, trade styles, designs, logos and other source of
business identifiers and other Intellectual Property and general intangibles now
owned or hereafter acquired by Debtor, wherever the same maybe located,
including in such license reasonable access to all media in which any of the
licensed items may be recorded or stored and to all computer programs used for
the compilation or printout thereof.
(e) Secured Party may apply the cash proceeds of Collateral
actually received by Secured Party from any sale, lease, foreclosure or other
disposition of the Collateral to payment of the Obligations, in whole or in part
and in such order as Secured Party may elect, whether or not then due; provided,
however, that such proceeds will be first applied against any accrued but unpaid
interest then due. Debtor shall remain liable to Secured Party for the payment
of any deficiency with interest at the Default Rate (as defined in the Note) and
all costs and expenses of collection or enforcement, including attorneys' fees
and legal expenses.
8. Waiver of Counterclaims. Debtor waives all rights to interpose any
claims, deductions, setoffs or counterclaims of any nature (other then
compulsory counterclaims) in any action or proceeding brought by the Secured
Party with respect to this Security Agreement, the other Transaction Documents,
the Obligations, the Collateral or any matter arising therefrom or relating
hereto or thereto.
9. Governing Law. The provisions of Section 10(c) of the Purchase
Agreement ("Governing Law/Jurisdiction") are hereby incorporated herein by
reference and shall be deemed to govern this Agreement as well.
10. Miscellaneous. Expenses of enforcing Secured Party's rights
hereunder including, but not limited to, Secured Party's reasonable attorneys'
fees and other expenses shall be payable by Debtor on demand and shall
constitute Obligations hereunder. None of the terms or provisions of this
Agreement may be waived, altered, modified or amended except by an instrument in
writing, duly executed by Secured Party and Debtor. Secured Party's rights and
remedies hereunder or under any other agreement or instrument shall be
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law. This Agreement shall be
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assignable only in conjunction with an assignment of the Obligations, to the
extent permitted under the Purchase Agreement. The notice provisions of the
Purchase Agreement contained in Section 10(g) are hereby incorporated herein by
reference and shall be deemed to govern this Agreement as well.
REMAINDER OF PAGE INTENTIONALLY BLANK
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[Signature Page to Security Agreement]
EXECUTED as of January 20, 2006.
OVATION PRODUCTS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
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