EXHIBIT 10.24
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT ("Agreement") is entered into as of this 30th day
of September, 2001, by and between FGFC Holdings, Inc., a California corporation
("Secured Party"), and EMB Corporation, a Hawaii corporation ("EMB").
Capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Note (as hereinafter defined).
WHEREAS, EMB entered into a Purchase Agreement with Secured Party and First
Guaranty Financial Corporation ("FGFC") on September 30, 2001 (the "Purchase
Agreement"), for the acquisition by EMB from Secured Party of all of the common
stock of FGFC"; and
WHEREAS, in connection with such Purchase Agreement, EMB has executed a
Secured Promissory Note of even date herewith in favor of Secured Party in the
principal amount of Five Hundred Thousand Dollars ($500,000.00) (the "Note"),
the terms of which are incorporated herein by reference and made a part hereof;
and
WHEREAS, to secure payment and performance of EMB's duties and obligations
under the Note, EMB has agreed to grant Secured Party a continuing security
interest in the 10,000 shares of common stock of FGFC and the 100,000 shares of
Series A convertible preferred stock of FGFC that were acquired by the Company
in connection with the Purchase Agreement, subject to the terms and conditions
set forth herein and in the Note;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, EMB and Secured Party,
intending to be legally bound hereby, agree as follows:
1. Security Interest.
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(a) To secure payment and performance of EMB's "Obligations" (as
hereinafter defined) under the Note, EMB hereby pledges, assigns, transfers and
grants to Secured Party a continuing security interest in the following: Ten
thousand (10,000) shares of common stock of FGFC, one hundred thousand (100,000)
shares of Series A convertible preferred stock of FGFC, together with the
dividends, rights, options, issues, products, proceeds and profits therefrom
(collectively, the "Collateral Shares"). The interest of Secured Party in the
Collateral Shares is a first priority lien and security interest in and to the
Collateral Shares. In addition to a stock certificate representing the
Collateral Shares, EMB shall deliver to the Collateral Agent EMB's undated
assignment separate from such certificate executed in blank, together with such
other assignments, agreements, instruments and documents (collectively, the
"Assignment Documentation") as Secured Party from time to time may reasonably
require and as may be necessary or expedient to facilitate the transfer thereof.
The Collateral Shares and the Assignment Documentation shall be held and
distributed by the Collateral Agent in accordance with the terms and conditions
of the Note and this Agreement; and
(b) The Collateral Shares referenced by Subparagraph (a)(i) of this
Section, shall hereinafter also be referred to as the "Collateral".
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(c) EMB expressly understands and agrees that the security interest
granted to Secured Party hereunder shall remain as security for payment and
performance of EMB's Obligations, whether now existing or that may hereafter be
incurred by future advances or otherwise. Notice of the continuing grant of
these security interests shall, therefore, not be required to be stated on the
face of any document representing any such Obligations, nor otherwise identify
such document as being secured hereby.
2. Definitions. The following terms shall have the following meanings:
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(a) "Loan Documents" means this Agreement, and any and all agreements,
notes, guaranties, instruments, security agreements, mortgages, assignments, and
documents evidencing, governing, securing or relating in any way to any of the
Obligations, including without limitation, that certain Note in the original
principal amount of $500,000.00 from EMB in favor of Secured Party of even date
herewith and that certain Form UCC-1 Financing Statement executed by the parties
of even date herewith; and
(b) "Obligations" means any and all indebtedness, obligations,
liabilities, contracts, indentures, agreements, warranties, covenants,
guaranties, representations, provisions, terms and conditions of whatever kind
with regard to the Loan Documents, whether due or to become due, absolute or
contingent, now existing or hereafter incurred or arising, whether or not
otherwise guaranteed or secured and whether evidenced by any note or draft or
documented on the books and records of Secured Party or otherwise on open
account, including without limitation, all costs, expenses, fees, charges and
attorneys' and other professional fees incurred by Secured Party in connection
with, involving or related to the administration, protection, modification,
collection, enforcement, preservation or defense of any of Secured Party's
rights with respect to any of the Obligations, the Collateral or any agreement,
instrument or document evidencing, governing, securing or relating to any of the
foregoing, including without limitation, all costs and expenses incurred in
inspecting or surveying mortgaged real estate, if any, or conducting
environmental studies or tests, and in connection with any "workout" or default
resolution negotiations involving legal counsel or other professionals and any
renegotiation or restructuring of any of the Obligations.
3. EMB's Representations and Warranties. EMB makes the following
representations and warranties hereunder and upon which Secured Party relies:
(a) Authority. EMB has full power and authority to enter into and
perform the Obligations under this Agreement, to execute and deliver the Loan
Documents and to incur the obligations provided for herein and therein, all of
which have been duly authorized by all necessary and proper corporate action. No
other consent or approval or the taking of any other action is required as a
condition to the validity or enforceability of this Agreement or any of the
other Loan Documents.
(b) Binding Agreements. This Agreement and the other Loan Documents
constitute the valid and legally binding obligations of EMB, enforceable in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
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(c) No Conflicting Law or Agreements. The execution, delivery and
performance by EMB of this Agreement and the other Loan Documents: (i) do not
violate any provision of the bylaws of EMB, (ii) do not violate any order,
decree or judgment, or any provision of any statute, rule or regulation, (iii)
do not violate or conflict with, result in a breach of or constitute (with
notice or lapse of time, or both) a default under any mortgage, indenture,
contract or other agreement to which EMB is a party, or by which any of EMB's
properties are bound, or (iv) except for the lien granted to Secured Party
hereunder, do not result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any property or assets of EMB.
(d) Collateral. EMB is and shall continue to be the sole owner of the
Collateral free and clear of all liens, encumbrances, security interests and
claims, except for the liens granted to Secured Party hereunder. EMB is fully
authorized to sell, transfer, pledge and/or grant a security interest in the
Collateral to Secured Party. All documents and agreements related to the
Collateral shall be true and correct and in all respects what they purport to
be; all signatures and endorsements that appear thereon shall be genuine and all
signatories and endorsers shall have full capacity to contract. None of the
transactions underlying or giving rise to the Collateral shall violate any
applicable state or federal laws or regulations. All documents relating to the
Collateral shall be legally sufficient under such laws or regulations and shall
be legally enforceable in accordance with their terms. EMB agrees to defend the
Collateral against the claims of all persons other than Secured Party, except as
expressly reserved or otherwise provided herein.
4. Covenants of EMB. EMB covenants and agrees that from the date
hereof until full and final payment and performance of all Obligations EMB
shall:
(a) Financial Information. Deliver to Secured Party promptly upon
Secured Party's request, such documentation and information about EMB's
financial condition, business and/or operations as Secured Party may, at any
time and from time to time, reasonably request, including without limitation,
monthly unaudited interim, quarterly unaudited interim and annual audited or
unaudited financial statements, and such other records and documentation as
shall reasonably related to Secured Party's interest as a secured creditor of
EMB under the terms of the Note.
(b) Litigation. Promptly advise Secured Party of the commencement or
threat of litigation, including arbitration proceedings and any proceedings
before any governmental agency, or any other legal action (collectively,
"Litigation"), which is instituted against EMB in connection with the Collateral
or which might jeopardize the first lien of Secured Party as against the
Collateral.
(c) Maintenance of Existence. Maintain its corporate existence, and
comply with all valid and applicable statutes, rules and regulations, and
maintain its properties in good repair, working order and operating condition.
EMB shall immediately notify Secured Party of any event causing material loss in
the value of its assets.
(d) Collateral Duties. Do whatever Secured Party may reasonably
request from time to time by way of obtaining, executing, delivering and filing
financing statements, assignments, landlord's or mortgagee's waivers, and other
notices and amendments and renewals thereof, and EMB will take any and all steps
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and observe such formalities as Secured Party may reasonably request in order to
create and maintain a valid and enforceable first lien upon, pledge of, and
first priority security interest in, any and all of the Collateral. Secured
Party is authorized to file financing statements without the signature of EMB
and to execute and file such financing statements on behalf of EMB as specified
by the UCC to perfect or maintain Secured Party's security interest in all of
the Collateral.
(e) Notice of Default. Provide to Secured Party, not later than five
(5) business days after becoming aware of the occurrence or existence of an
Event of Default (as defined in the Note) or a condition which would constitute
an Event of Default but for the giving of notice or passage of time on both,
notice in writing of such Event of Default or condition.
(f) Maintenance of Current Public Information. EMB agrees to use its
best efforts to make available "adequate current public information" concerning
itself within the meaning of Rule 144(c) promulgated under the Securities Act of
1933, as amended. Notwithstanding anything herein to the contrary, this covenant
shall continue until the 15th month after the payment in full of the Obligations
and shall survive the termination of this Agreement.
5. Additional Rights of Secured Party.
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(a) Upon the occurrence of an Event of Default as defined in the Note,
EMB hereby constitutes and appoints Secured Party (with full power of
substitution) its true and lawful attorney and agent in fact to take any or all
of the actions described below in Secured Party's or EMB's name and at EMB's
expense, and EMB hereby ratifies and confirms all actions so taken:
(i) Evidence of Liens. Secured Party may execute such
financing statements and other documents and take such other actions
as Secured Party deems reasonably necessary or proper in order to
create, perfect or continue the security interest and other liens
provided for by this Security Agreement, and Secured Party may file
the same (or a photocopy of this Security Agreement or of any
financing statement signed by EMB) in any appropriate governmental
office.
(ii) Preservation of Collateral. Secured Party may take any
and all action that Secured Party deems reasonably necessary or proper
to preserve his interest in the Collateral, including, without
limitation, the payment of debts of EMB, which, if unpaid, might
materially impair the Collateral or Secured Party's security interest
therein; or the payment of taxes, assessments or other liens thereon.
All sums so expended by Secured Party shall be added to the
Obligations, shall be secured by the Collateral, and shall be payable
thirty (30) days following Secured Party's written demand.
(iii) Secured Party's Right to Cure. In the event EMB fails
to perform any of its obligations, then Secured Party may perform the
same but shall not be obligated to do so. All sums so expended by
Secured Party shall be added to the Obligations, shall be secured by
the Collateral, and shall be payable thirty (30) days following
Secured Party's written demand.
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(b) EMB covenants and agrees that the power of attorney granted by the
foregoing subsection (a) is coupled with an interest and shall be irrevocable so
long as this Security Agreement is in force; that said powers are granted solely
for the protection of Secured Party's interest and that Secured Party shall have
no duty to exercise any thereof; that the decision whether to exercise any of
such powers, and the manner of exercise, shall be solely within Secured Party's
reasonable discretion.
6. Remedies of Secured Party in Respect of the Collateral Shares.
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(a) Upon the occurrence of any Event of Default (as defined in the
Note), Secured Party shall have the right, following expiration of any time
period during which EMB may have the right to cure such default, to declare all
of the Obligations to be immediately due and payable and shall then, in respect
of the Collateral Shares, have the rights and remedies of a secured party under
the Uniform Commercial Code or under any other applicable law, including,
without limitation to take possession of the Collateral Shares. Following an
Event of Default, Secured Party shall have the right, following expiration of
any time period during which EMB may have the right to cure such default, to
immediately make written demand upon the Collateral Agent to deliver the
Collateral Shares and the Assignment Documentation to Secured Party. Not later
than five (5) days after the Collateral Agent's receipt of such written demand,
the Collateral Agent shall make delivery, in accordance with Secured Party's
demand, of the certificate representing the Collateral Shares together with the
Assignment Documentation in blank or completed as Secured Party shall have
specified unless, prior to the end of such five (5) day period, EMB shall have
given written notice to the Collateral Agent and to Secured Party in good faith
disputing the occurrence of the Event of Default and directing the Collateral
Agent to withhold the delivery of the Collateral Shares and the Assignment
Documentation. Upon receipt of such written notice from EMB, the Collateral
Agent shall not deliver the Collateral Shares and the Assignment Documentation
to any person other than into court until the controversy shall have been
settled either by an agreement or by a final judgment of a court of competent
jurisdiction. Each party shall be entitled to reimbursement by the other of its
reasonable attorneys fees and costs and other reasonable expenses incurred in
the event that a court of competent jurisdiction shall determine in its favor
(that is, as to Secured Party, that an Event of Default shall have occurred
following EMB's dispute of same; and that is, as to EMB, that an Event of
Default shall not have occurred), notwithstanding a party's good faith in
asserting the existence of an Event of Default (in the case of Secured Party) or
the absence thereof (in the case of EMB).
(b) Upon the delivery to Secured Party of the Collateral Shares and
the Assignment Documentation pursuant to Section 6(a) above, Secured Party may
date any of the Assignment Documents and participate as the owner of the
Collateral Shares in the election of directors and may exercise such other
rights as a stockholder of FGFC as he may, in his sole and absolute discretion,
see fit. In addition to the foregoing remedies, Secured Party may be the
purchaser of any or all of the Collateral Shares sold at any public or private
sale and thereafter hold the same, absolutely, free and clear of and from any
and all claims or rights of any kind whatsoever. EMB hereby acknowledges and
agrees that ten days' notice shall be deemed commercially reasonable notice with
respect to the time and place of any public sale or the time after which any
private sale or any other intended disposition of the Collateral Shares is to be
made, and, in the case of any notice to EMB of a private sale, such notice shall
advise EMB of the terms and conditions of the sale as are then known to Secured
Party. Recognizing the possibility that there may be no adequate market for the
Collateral Shares or that the sale of the Collateral Shares may require
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registration under the Securities Act of 1933 or qualification under other state
or federal laws relating to securities, EMB specifically authorizes a private
sale of all or any of the Collateral Shares without attempts by Secured Party to
approach more than one possible purchaser.
(c) The proceeds of any sale of any of the Collateral Shares shall be
applied to expenses, including, without limitation, attorney's fees to the
fullest extent allowable by law, reasonably incurred in connection with such
sales, the collection of the Note, and the prosecution or defense of any
proceeding related thereto, and then to the payment or satisfaction of the Note.
In the event the proceeds of any sale or other disposition of the Collateral
hereunder, are insufficient to pay all of the Obligations in full, EMB will be
liable for the deficiency, together with interest thereon, at the maximum rate
allowable by law, and the costs and expenses of collection of such deficiency,
including (to the extent permitted by law) without limitation, attorney's fees,
expenses and disbursements. From and after the occurrence of an Event of
Default, and the expiration of any time period during which EMB may have the
right to cure such default, and unless and until the Note has been fully paid
and satisfied, Secured Party shall be entitled to act with respect to the
Collateral Shares in all matters or events, and to exercise all rights and
privileges, to the maximum extent permitted by law, as an absolute owner of the
Collateral Shares and to hold all proceeds from the sale thereof as part of the
Collateral hereunder.
7. Costs and Expenses. Upon the occurrence of an Event of Default as
defined in the Note, EMB agrees to pay on demand all of Secured Party's
reasonable expenses in collecting, enforcing, safeguarding, holding and
disposing of Collateral, and all other losses, costs and expenses incurred by
Secured Party in connection with the enforcement of this Security Agreement, the
Note or the Loan Documents, or in connection with legal advice relating to the
rights or responsibilities of Secured Party under any thereof (including in each
case, without limitation, the reasonable fees and out-of-pocket expenses of
attorneys, accountants and appraisers).
With respect to any amount advanced by Secured Party and required to be
reimbursed by EMB pursuant to any provision of this Security Agreement, EMB
shall also pay Secured Party interest on such amount at the rate from time to
time applicable to overdue principal of the Note from the date on which EMB
receives written notice of the expenditure to the date of reimbursement. EMB's
obligations under this Section 7 shall survive payment of the Note and the other
Obligations.
8. Waivers; Etc. EMB hereby waives presentment, demand, notice, protest
and all other demands and notices in connection with this Agreement or the
enforcement of Secured Party's rights hereunder or in connection with any
Obligations or any Collateral; and consents to and waives notice of: (a) the
granting of renewals, extensions of time for payment or other indulgences to EMB
or to any account debtor in respect of any account receivable of EMB; (b)
substitution, release or surrender of any Collateral; (c) the addition or
release of persons primarily or secondarily liable on any of the Obligations or
on any account receivable or other Collateral; and (d) the acceptance of partial
payments on any Obligations or on any account receivable or other Collateral
and/or the settlement or compromise thereof. No delay or omission on the part of
Secured Party in exercising any right hereunder shall operate as a waiver of
such right or of any other right hereunder. Any waiver of any such right on any
one occasion shall not be construed as a bar to or waiver of any such right on
any such future occasion.
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EMB'S WAIVERS UNDER THIS SECTION HAVE BEEN MADE VOLUNTARILY, INTELLIGENTLY,
KNOWINGLY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS THEREOF.
9. Termination; Assignment; Etc. This Agreement and the security
interest in the Collateral created hereby shall terminate when all of the
Obligations have been paid and finally discharged in full. No waiver by Secured
Party or by any other holder of the Obligations of any default shall be
effective unless in writing signed by Secured Party nor shall any waiver granted
on any one occasion operate as a waiver of any other default or of the same
default on a future occasion. In the event of a sale or assignment by Secured
Party of all or any of the Obligations held by Secured Party, Secured Party may
not assign or transfer its respective rights and interests under this Agreement
in whole or in part to the purchaser or purchasers of such Obligations;
accordingly, such purchaser or purchasers shall become vested with all of the
powers and rights hereunder Further, no sale or assignment shall act to release
or discharge, in whole or in part, Secured Party from any liability or
responsibility hereunder with respect to the rights and interests so assigned.
10. Miscellaneous.
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(a) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon Secured Party and EMB and their respective successors and
assigns.
(b) Changes. Changes in or additions to this Agreement may be made or
compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively), only upon written consent of EMB and
Secured Party.
(c) Notices. All notices, requests, consents and demands shall be made
in writing and shall be delivered by facsimile to the fax number set forth below
or by hand, sent via a reputable overnight courier service or mailed by first
class certified or registered mail, return receipt requested, postage prepaid to
EMB;
If to EMB:
EMB Corporation
0000 Xxxxxx Xxxxxx
Xxxxx X
Attention: Chief Executive Officer
(Fax Number: 000-000-0000)
With a copy to:
(which shall not constitute notice)
Xxxxx Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esquire
(Fax Number: 000-000-0000)
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If to Secured Party:
FGFC Holdings, Inc.
Attn: Xxxxxx X. Xxxxxxxx
0 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
(d) Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of California notwithstanding any conflict-of-laws doctrines of such
state or other jurisdictions to the contrary, and without the aid of any canon,
custom or rule of law requiring constructions against the draftsman. The parties
agree to submit to the jurisdiction and venue of the state and federal courts of
Orange County, California, for the purposes of resolving disputes hereunder. and
authorize any such action to be instituted and prosecuted exclusively in the
Superior Court of the State of California or, if appropriate, the United States
District Court for the Central District of California.
(e) Breach. EMB agrees to pay all costs of enforcement, including
reasonable attorney's fees and legal expenses incurred by Secured Party in the
event that EMB fails to comply with or otherwise breaches this Agreement.
(f) Severability. If any provision of this Agreement is held invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions of this Agreement, all of
which are declared severable.
(g) Headings. The headings used in this Agreement are solely for
convenience of reference and shall not affect its interpretation.
(h) Words and Phrases. Words and phrases such as "to this Agreement,"
"herein," "hereinafter," "hereto," "hereof," "hereby," and "hereunder," when
used with reference to this Agreement, refer to this Agreement as a whole,
unless the context otherwise requires.
(i) Gender and Number. Wherever from the context of this Agreement it
appears appropriate, each term stated in either the singular or the plural shall
include the singular or the plural, and pronouns sated in either the masculine,
feminine or neuter gender, shall include the masculine, feminine and neuter.
(j) Conflict. In the event of any conflict between the terms of any of
the Loan Documents, including, but not limited to, this Agreement and the Note,
the terms of the Note shall control.
(k) Entire Understanding. Except as expressly reserved or otherwise
provided herein, this Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
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conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
(l) Jury Waiver. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY COURT
IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART
AND/OR THE ENFORCEMENT OF ANY OF THE PARTIES' RESPECTIVE RIGHTS AND REMEDIES,
INCLUDING WITHOUT LIMITATION, TORT CLAIMS. THE PARTIES ACKNOWLEDGE THAT EACH
MADE THIS WAIVER VOLUNTARILY, INTELLIGENTLY, KNOWINGLY, WITHOUT DURESS AND ONLY
AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS THEREOF.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, including separate counterparts, all of which when taken together,
shall constitute one instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
FGFC HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
President
EMB CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman and Chief
Executive Officer
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