EXHIBIT 10(iii)
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (the "AGREEMENT") is made and entered
into as of October 3, 2001, by and between Xxxx X. Xxxxx, individually
("LENDER"), at 000 Xxxxxxxxx Xxxxxx, #0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, and
AimRite Holdings Corporation, a Nevada corporation ("BORROWER"). NOW THEREFORE,
for good and valuable consideration, the recipient and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. LOAN. Lender shall loan Borrower up to Three Hundred Thousand Dollars
($300,000) (the "LOAN"), in One Hundred Thousand Dollar ($100,000) increments,
pursuant to the terms and conditions of this Agreement and the Promissory Note
(as defined below).
1.1. Borrower shall receive each portion of the Loan upon notice by
Borrower to Lender, the consent of Lender, and execution of a separate Secured
Promissory Note, the form of which is attached hereto as EXHIBIT A (the
"PROMISSORY NOTE"). The conversion rights (Section 7) and right to revenue
(Section 9) of the Promissory Note apply to each Promissory Note executed by the
Borrower in favor of Lender such that if the Loan is fully funded, Lender would
have aggregate conversion rights equal to seven and one-half percent (7 1/2%) of
the outstanding Common Stock pursuant to Section 7 and an entitlement to receive
up to nine percent (9%) of Borrower's gross revenues pursuant to Section 9.
1.2. Lender shall have no right to call or demand any increment of the
Loan. A Promissory Note will be executed only upon the mutual agreement of the
parties hereto. In no event will Borrower request nor Lender make advances after
September 30, 2002.
2. SECURITY INTEREST. As collateral security for the prompt and complete payment
and performance when due of all of its obligations under each Promissory Note
and this Agreement ("OBLIGATIONS"), Borrower does hereby grant to Lender a
continuing security interest in and to the following assets and property of
Borrower as of the date of this Agreement (the "COLLATERAL"):
All inventory, furniture, fixtures and equipment of the
Borrower, now owned or hereafter acquired; all accou7nts
receivable, contract rights, rights to payment of money and
general intangibles of Borrower, now owned or hereafter
arising; all intellectual property (patents, trademarks,
service marks, trade names, copyrights, trade secrets, etc.)
Of Borrower now owned; and all products and proceeds of the
foregoing.
3. GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents,
warrants and covenants, which representations, warranties and covenants shall
survive execution and delivery of this Agreement as follows:
3.1. PERFECTION OF SECURITY INTEREST. Borrower agrees to execute such
financing statements and to take whatever other actions are reasonably requested
by Lender to perfect and continue Lender's security interest in the Collateral.
Upon the reasonable request of Lender: (i) Borrower will deliver to Lender any
and all instruments or agreements evidencing or constituting the Collateral, and
(ii) Borrower will note Lender's interest upon any and all chattel paper if not
delivered to Lender for possession by Lender. Borrower further authorizes Lender
to file such financing statements (with or without Borrower's signature) as
Lender deems necessary to perfect and continue Lender's security interest in the
Collateral.
3.2. NO VIOLATION. The execution and delivery of this Agreement will
not violate any law or agreement governing Borrower or to which Borrower is a
party.
3.3. TITLE. Borrower represents and warrant to Lender that it holds good
and marketable title to the Collateral, free and clear of all liens and
encumbrances except for the lien of this Agreement. No financing statement
covering any of the Collateral is on file in any public office other than those
that reflect the security interest created by this Agreement. Borrower shall
defend Lender's rights in the Collateral against the claims and demands of all
other persons.
3.4. CORPORATE AUTHORIZATION. Borrower represents and warrants that all
necessary corporate action has been undertaken by Borrower to approve and
authorize the execution of this Agreement including, without limitation, the
approval of the Board of Directors of Borrower and that when executed, the same
will constitute the valid and binding obligation of the Borrower enforceable
against Borrower in accordance with its terms. The individual officer executing
this Agreement on behalf of the Borrower certifies, knowing that Lender is
relying thereon, that such person has the express authority of Borrower to
execute this Agreement and bind Borrower to the terms and conditions of both
this Agreement and the Promissory Note.
4. EVENTS OF DEFAULT. Each of the following shall constitute an "Event of
Default" under this Agreement:
4.1. DEFAULT ON OBLIGATIONS. Failure of Borrower to make any required
payment of an Obligation within ten (10) days from the date due.
4.2. OTHER DEFAULTS. Failure of Borrower to comply with or to perform
any other term, obligation, covenant or condition contained in this Agreement,
the Promissory Note or any other agreement between Lender and Borrower within
thirty (30) days from written notice of such failure from Lender to Borrower,
unless another time period is provided with respect to a specific breach, in
which event the other such time period shall apply.
4.3. INSOLVENCY. The dissolution or termination of Borrower's existence
as a going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Borrower which is not
dismissed within sixty (60) days if such proceeding was not initiated by
Borrower.
4.4. CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help, repossession
or any other method, by any other creditor of Borrower or by any governmental
agency against the Collateral or any other collateral securing the Obligations.
4.5. OTHER JUDGMENTS. The entry of a judgment against Borrower in the
amount of $25,000 or more, unless a bond is posted preventing the enforcement of
the same.
5. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, or at any time thereafter, Lender shall have all the rights of a
secured party under the Minnesota Uniform Commercial Code. In addition and
without limitation, Lender may exercise any one or more of the following rights
and remedies:
5.1. ACCELERATE OBLIGATIONS. Lender may declare the entire Obligations
immediately due and payable, without notice.
5.2. OTHER RIGHTS AND REMEDIES. Lender shall have all the rights and
remedies of a secured creditor under the provisions of the Minnesota Uniform
Commercial Code, as may be amended from time to time. In addition, Lender shall
have and may exercise any or all other rights and remedies it may have available
at law, in equity or otherwise.
5.3. CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement, the Note or by any other writing, shall be
cumulative and may be exercised singularly or concurrently. Election by Lender
to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Borrower under this Agreement, after Borrower's failure to perform, shall not
affect Lender's right to declare a default and to exercise its remedies.
6. MISCELLANEOUS PROVISION. The following miscellaneous provisions are a part of
this Agreement:
6.1. NOTICES. Unless otherwise specifically permitted by this
Agreement, all notices or other communications required or permitted under this
Agreement shall be in writing, and shall be personally delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, or sent
by facsimile, provided that the facsimile cover sheet contain a notation of the
date and time of transmission, and shall be deemed received: (i) if personally
delivered, upon the date of delivery to the address of the person to receive
such notice; (ii) if mailed in accordance with the provisions of this paragraph,
two (2) business days after the date placed in the U.S. mail; (iii) if mailed
other than in accordance with the provisions of this paragraph or mailed from
outside the United States, upon the date of delivery to the address of the
person to receive such notice; or (iv) if given by facsimile, when sent. Notices
shall be given at the following addresses:
If to Borrower: AimRite Holdings Corporations
Attn: Xxxxxxx Xxxxxxxx, President
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Lender: Xxxx X. Xxxxx
000 Xxxxxxxxx Xxxxxx, #0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
The relevant party may change the address for delivery of notices by giving
notice of such change in accordance with this paragraph.
6.2. COMPLETE AGREEMENT; MODIFICATIONS. This Agreement and the
Promissory Note (i) constitute the parties' entire agreement with respect to the
subject matter hereof, (ii) merge all prior discussions and negotiations between
or among any or all of them as to the subject matter hereof and (iii) supersede
and replace all agreements, representations, warranties, statements, promises
and understandings, whether oral or written, with respect to the subject matter
hereof. This Agreement may not be amended, altered or modified except by a
writing signed by the parties, Such writing may be signed in counterparts and
facsimile signatures shall be effective as original signatures.
6.3. FURTHER ACTIONS. Each party agrees to perform any further acts and
execute and deliver any further documents reasonably necessary to carry out the
provision of this Agreement.
6.4. SUCCESSORS AND ASSIGNS. Except as explicitly provided herein to
the contrary, this Agreement shall be binding upon and inure to the benefit of
the parties, their respective successors and permitted assigns.
6.5. SEVERABILITY. It is intended that each provision of this Agreement
shall be viewed as separate and divisible, and in the event that any provision
shall be held to be invalid, illegal or unenforceable, this Agreement and the
remaining provisions hereof shall continue in full force and effect.
6.6. TIME OF ESSENCE; GOVERNING LAW; JURISDICTION. Time is of the
essence of this Agreement, This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Minnesota, without regard to the
conflict of law principles thereof. Both Borrower and Lender consent to both
jurisdiction and venue in the federal and state courts located in the State of
Minnesota with respect to disputes arising under this Agreement, Borrower and
Lender agree that this Agreement is made and intended to be performed in the
State of Minnesota.
6.7. POWER OF ATTORNEY. Upon the occurrence and during the continuance
of an Event of Default, Borrower hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do the
following: (i) demand, collect, receive, receipt for, xxx and recover all sums
of money or other property which may now or hereafter become due, owing or
payable from the Collateral; (ii) execute, sign and endorse any and all claims,
instruments, receipts, checks, drafts or warrants issued in payment for the
Collateral; (iii) settle or compromise any and all claims arising under the
Collateral, and, in the place and state of Borrower, execute and deliver its
release and settlement for the claim; and (iv) file any claim or claims or to
take any action or institute or take part in any proceedings, either in its own
name or in the name of Borrower, or otherwise, which in the discretion of Lender
may seem to be necessary or advisable.
6.8. WAIVER. Lender shall not be deemed to have waived any rights under
this Agreement unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall operate as
a waiver of such right or any other right. A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior wavier by Lender, nor any course of dealing between
Lender and Borrower, shall constitute a waiver of any of Lender's rights or of
any of Borrower's obligations as to any future transaction. Whenever the consent
of Lender is required under this Agreement, the granting of such consent by
Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be
granted or withheld in the reasonable discretion of Lender.
6.9. APPLICATION OF LOAN PROCEEDS. Upon execution of this Agreement and
the initial Promissory Note hereunder, Lender is authorized to deduct, withhold
and apply proceeds from the Loan as are necessary to pay off any sums owed
Lender including, without limitation, that certain promissory note executed by
Borrower in favor of Lender dated as of October 1, 2001, in the original
principal amount of $50,000. As of the date hereof, the amount due is $50,000,
together with interest accruing from October 1, 2001 at the per diem amount of
$13.54.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth above.
BORROWER: LENDER:
AimRite Holdings Corporation Xxxx X. Xxxxx
a Nevada corporation
By: /S/ XXXXXXX XXXXXXXX By: /S/ XXXX X. XXXXX
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President
