Exhibit 10.31
AMENDED SECURITY AGREEMENT
This Security Agreement (this "Agreement") is made December 3, 2002 by
BRIAZZ, Inc., a Washington corporation, with its principal executive offices at
0000 - 0xx Xxxxxx Xxxxx, #000, Xxxxxxx, XX 00000 ("Company") in favor of Flying
Food Group, L.L.C. ("FFG") and those affiliates of FFG named as makers under the
terms of the Notes (as defined below), including but not limited to New
Management, Ltd. (collectively, the "Lenders").
WHEREAS, certain of the Lenders and Company are parties to those
certain Promissory Notes dated as of October 25, 2002, October 30, 2002 and
December 2, 2002 in an aggregate principal amount of $800,000 ("Initial Notes"),
FFG may in the future guarantee the Company's obligations to certain of its
vendors and contract partners (the "Guarantees"), and the Company will enter
into an Indemnity Agreement at such time as FFG issues any Guarantees relating
to such Guarantees (the "Indemnity Agreement") pursuant to which the Company
will, in certain circumstances, indemnify FFG for payments made by it pursuant
to such Guarantees and other guarantees that FFG may make on behalf of the
Company; and
WHEREAS, in connection with certain of the Initial Notes, Company made
a Security Agreement dated as of November 19, 2002 (the "Prior Security
Agreement") in favor of New Management, Ltd., one of the Lenders; and
WHEREAS, the Lenders and Company desire to amend and restate the Prior
Security Agreement to reflect that Laurus Master Fund, Ltd. ("Laurus") has
entered into an Agreement Between Creditors with the Lenders dated as of
December 2, 2002 (the "Agreement Between Creditors"), to include the Company's
obligations pursuant to the Initial Notes, any Guarantees or the Indemnity
Agreement and to provide for additional Lenders becoming parties to this
Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, Company and the
Lenders hereby agree as follows:
1. Capitalized Terms. All terms capitalized but not otherwise
defined in this Agreement shall have the same meanings in this Agreement as in
the Uniform Commercial Code-Secured Transactions in effect in the State of
Washington, as amended from time to time (the "UCC").
2. Grant of Security Interest. To secure the complete and timely
satisfaction of all obligations of Company under the Initial Notes, the
Indemnity Agreement and any demand promissory note made by Company in favor of
any Lender after the date hereof (such notes, collectively, the "Notes" and such
obligations, collectively, the "Obligations"), Company hereby grants to the
Lenders a continuing first priority security interest in all of Company's right,
title and interest in the following personal property and fixtures, wherever
located and now or in the future owned, existing, arising or acquired
(collectively, the "Collateral"): all accounts, inventory, equipment, goods,
documents, instruments (including, without limitation, promissory notes),
contract rights, general intangibles (including, without limitation, payment
intangibles), chattel paper, supporting obligations, investment property,
letter-of-credit rights, trademarks and tradestyles in which we now have or
hereafter may acquire any right, title or interest, all proceeds and products
thereof (including, without limitation, proceeds of insurance) and all
additions, accessions and substitutions thereto or therefor. The Lenders
acknowledge that the security interests granted by Company hereunder is subject
to the Agreement between creditors and shall be junior and subordinated to the
security interest granted to (a) CAPCO Financial Company, a division of
Cupertino National Bank ("CAPCO"), in the Company's Accounts pursuant to that
certain contract of sale security agreement dated August 28, 2002, as amended
from time to time, relating to Company's Accounts, and (b) the Company's
equipment lessors in the Company's leased equipment (CAPCO and the lessors are
collectively referred to as, the "Senior Secured Parties"). If requested by a
Senior Secured Party, the Lenders will enter into a subordination agreement
confirming that their security interest is junior and subordinated in right to
the right of such Senior Secured Party. The Lenders have entered into a
subordination agreement with CAPCO. This Agreement is the security agreement
referred to in the Agreement Between Creditors.
3. Perfection of Security Interests. Company agrees to join the
Lenders in executing financing statements or other instruments pursuant to the
UCC in form satisfactory to the Lenders and in executing such other
documents or instruments as may be required or deemed necessary by the Lenders
for purposes of affecting or continuing the Lenders' security interest in the
Collateral. The parties agree that a carbon, photographic or other reproduction
of this Agreement shall be sufficient as a financing statement and may be filed
in any appropriate office in lieu thereof. To the extent any Collateral is in
the possession of a third party or is delivered to a third party for holding,
Company shall immediately notify the Lenders and cooperate with the Lenders in
notifying such third parties of the Lenders' security interest in such
Collateral. Company shall use its best efforts to obtain an acknowledgment, or
such other agreement as the Lenders may determine is necessary in order to
perfect their security interest in the Collateral, from any third party in
possession of any Collateral that such third party is holding such Collateral
for the benefit of the Lenders.
4. Term. The term of the security interest granted in this
Agreement will extend until the time the Company's Obligations have been paid in
full.
5. Lenders' Right to Inspect and Collect. The Lenders shall have
the right, at any time and from time to time upon reasonable notice, to inspect
the Collateral in Company's possession. Company hereby irrevocably designates,
makes, constitutes and appoints the Lenders and any of the Lenders' officers,
employees and agents as Company's true and lawful attorney-in-fact, and the
Lenders, or the Lenders' representatives may, without notice to Company and in
either Company's or the Lenders name, but at the cost and expense of Company, at
such time or such times as the Lenders in their sole discretion may determine,
demand payment of all Accounts, enforce payment of the Accounts by legal
proceedings or otherwise, and generally exercise all of Company's rights and
remedies with respect to collection of the Accounts and take control of any
Collateral or any item of payment or proceeds relating to any Collateral.
6. Disposition. Company will not convey, sell, lease, transfer or
otherwise dispose of all or any part of its business or property, other than
such dispositions in the ordinary course of business or as otherwise
contemplated by Company and the Lenders.
7. Event of Default. If an Event of Default occurs and is
continuing, the Lenders may make all sums of principal, accrued but unpaid
interest and other fees then remaining unpaid on the Notes or under the
Indemnity Agreement and all other amounts payable thereunder due and payable.
Subject to the foregoing provision, an occurrence of any of the following shall
constitute an "Event of Default" under this Agreement and the Notes:
(a) Failure to Pay Principal, Interest or other Fees.
Company fails to pay any installment of principal, interest or other fees on any
Note or under the Indemnification Agreement, when due and such failure continues
for a period of five (5) days after the due date.
(b) Breach of Representations and Warranties. Any
material representation or warranty of Company made in this Agreement the Notes
or the Indemnity Agreement shall be false when made and shall not be cured for a
period of thirty (30) days after written notice thereof is received by Company
from the Lenders, except for any such breach which does not have a material
adverse effect upon the business, prospects, financial condition, results of
operations, affairs or operations of Company and its properties and assets taken
as a whole.
(c) Receiver or Trustee. Company shall make an assignment
for the benefit of creditors, or applies for or consents to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business; or such a receiver or trustee shall otherwise be appointed.
(d) Bankruptcy. Bankruptcy, insolvency, reorganization or
liquidation proceedings or other proceedings or relief under any bankruptcy law
or any law for the relief of debtors shall be instituted by or against Company
and such proceedings are not otherwise dismissed within forty-five (45) days.
8. Cumulative Remedies. Upon the occurrence of an Event of
Default, the Lenders may pursue any remedy available at law (including those
available under the provisions of the UCC) or in equity to collect, enforce or
satisfy any Obligations then owing, whether by acceleration or otherwise. All of
the Lenders' rights and remedies
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with respect to the Collateral established hereby and by the Notes shall be
cumulative, may be exercised singularly or concurrently and are not exclusive of
any right or remedy, now or hereafter existing, provided by law or otherwise.
9. Waivers. No course of dealing between Company and the Lenders,
nor any failure to exercise, nor any delay in exercising, on the part of the
Lenders, any right, power or privilege under this Agreement or under any Note
will operate as a waiver of any power or privilege under this Agreement or under
any Note nor will any single or partial exercise of any right, power or
privilege under this Agreement or under any Note preclude any other or further
exercise of that or any other right, power or privilege.
10. Modification. This Agreement amends and restates the Prior
Security Agreement. This Agreement cannot be altered, amended or modified in any
way, except as specifically provided in writing and signed by Company and the
Lenders; provided, however, that upon the issuance of any Note in favor of any
affiliate of FFG that is not then a Lender under this Agreement, such affiliate
shall become a Lender under this Agreement by executing and delivering to
Company a counterpart signature page to this Agreement. The parties agree that
upon conversion or repayment of the Notes in accordance with their terms, this
Agreement shall automatically terminate.
11. Binding Effect; Assignment. This Agreement shall be binding
upon Company and its successors and assigns, and shall inure to the benefit of
the Lenders and their respective successors and assigns. Company may not assign
any rights or obligations hereunder without the prior written consent of the
Lenders, and any such attempted assignment shall be null and void and of no
force or effect.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois. Each of
the parties hereto (i) consents to submit itself to the personal jurisdiction of
the United States District Court for the Northern District of Illinois or any
Illinois state court located in Xxxx County, Illinois in the event any dispute
arises out of this Agreement; (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court; (iii) agrees that it will not bring any action relating to this
Agreement in any court other than the United States District Court for the
Northern District of Illinois or an Illinois state court located in Xxxx County,
Illinois and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement.
13. Severability. The holding of any provision of this Agreement
to be invalid or unenforceable by a court of competent jurisdiction shall not
affect any other provision hereof and all other provisions hereof shall remain
in full force and effect.
14. Further Assurances. Company agrees to execute and deliver such
further agreements, instruments and documents, and to perform such further acts,
as the Lenders reasonably request from time to time in order to carry out the
purpose of this Agreement.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed as of the day and year first above written.
BRIAZZ, INC., a Washington corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: CEO
AGREED AND ACCEPTED
LENDERS:
FLYING FOOD GROUP, L.L.C.,
a Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Chief Financial Officer
NEW MANAGEMENT, LTD.
By: /s/ Xxxxx X. Xxxxxx
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Its: Chief Financial Officer
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SIGNATURE PAGE TO SECURITY AGREEMENT
