Exhibit 4(iv)
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SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (the "Security Agreement") is made and entered into
on this 25th day of June, 1999, by Xxxx Engineering & Sales, Inc., a Tennessee
corporation with principal office and place of business in Knoxville, Tennessee
("TES"), in favor of those persons who purchased notes from Xxxx Technology,
Inc. (the "Debtor") in a private placement and who are listed on Exhibit A
attached hereto and made a part hereof (the "Secured Parties").
P R E L I M I N A R Y S T A T E M E N T:
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A. Pursuant to an offering described in the Private Placement Memorandum
dated May 21, 1999, the Secured Parties have made term loans in the total
principal amount of One Million Dollars ($1,000,000) to the Debtor (the
"Loans").
B. The obligation of the Debtor to repay to the Secured Parties the Loans
together with accrued interest thereon are evidenced by Promissory Notes of even
date herewith, made by the Debtor, each payable to the order of one or more of
the Secured Parties, and which together have a total principal amount of One
Million Dollars ($1,000,000.00) (collectively, the "Notes").
C. The Debtor owns all of the issued and outstanding stock of TES. The
obligation of the Secured Parties to make the Loans to the Debtor is expressly
subject to the condition, among others, that TES execute and deliver this
Security Agreement in favor of the Secured Parties and, pursuant hereto, grant
to the Secured Parties a first priority security interest in the property
described below to secure the payment of all of the obligations described below.
In order to induce the Secured Parties to make the Loans, TES has agreed to
grant a security interest in certain of its assets which are described below.
NOW, THEREFORE, in consideration of the Secured Parties making the Loans to
the Debtor and for other good and valuable consideration, the mutuality, receipt
and sufficiency of which are hereby acknowledged, TES and the Secured Parties
hereby agree as follows:
1. Security Interest. To secure the payment of the Notes together with
all of the other indebtedness described in Section 2 hereof, TES hereby grants
to the Secured Parties a first priority security interest in and lien on the
patents on the electronic gearing components for sewing machines, namely patent
#5,458,075 issued on October 17, 1995 and patent #5,839,382 issued on November
24, 1998 (the "Collateral"), and the Proceeds therefrom. This security interest
is expressly subject to licensing and related rights which TES has granted and
which it may grant in the future.
As used herein, the term "Proceeds" means: (a) whatever is received upon
any collection, exchange, sale, rental, lease or other disposition of any of the
Collateral, and any property into which any of the Collateral is converted,
whether cash or non-cash proceeds, (b) any and all proceeds of
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any insurance, indemnity, warranty or guaranty payable to TES from time to time
with respect to any of the Collateral, (c) any and all payments (in any form
whatsoever) made or due and payable to TES from time to time in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental body, authority, bureau or agency (or
any person acting under color or governmental authority), (d) any claim of TES
against third parties for past, present or future infringement of or dilution of
any patent, and (e) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral.
2. Secured Obligations. TES has executed and delivered this Security
Agreement, and has granted to the Secured Parties a security interest in the
Collateral, to secure (a) the payment when due, whether at stated maturity, by
acceleration or otherwise, of the entire unpaid principal balance of and all
interest now accrued or hereafter to accrue on the Notes and (b) the payment of
all costs and expenses, including, without limitation, reasonable attorneys'
fees, now or hereafter incurred by the Secured Parties in collecting or
enforcing the Notes or this Security Agreement, all as set forth therein (the
Notes and all of the other obligations described in this Section 2 are
hereinafter collectively referred to as the "Secured Obligations").
3. Affirmative Covenants. TES hereby covenants and agrees with the
Secured Parties that TES will observe and perform all of the following
provisions until all of the Secured Obligations have been paid in full to the
Secured Parties and this Security Agreement has been terminated:
3.1 Defend the Collateral. TES shall, at its own expense, defend the
Collateral against the claims and demands of all persons and entities, and shall
take or cause to be taken all actions necessary or appropriate to preserve,
protect and maintain good right and title to all of the Collateral at all times.
3.2 Use and Inspection of Collateral. TES shall use the Collateral in
complete compliance with all applicable laws, rules and regulations governing
the use thereof. TES shall permit LandOak Securities, LLC, or any person
substituted for LandOak Securities, LLC by a majority in interest of the Secured
Parties with notice of such substitution to TES, as the representative of the
Secured Parties, to inspect its books and records pertaining to the Collateral
at all reasonable times and from time to time. TES shall forthwith deliver to
the Secured Parties such information concerning the Collateral that the
Representative may from time to time reasonably request.
3.3 Change of Name or Location. TES shall advise the Representative,
in writing, at least thirty (30) days in advance, of any proposed change in its
principal place of business or registered office or the proposed opening of any
new place of business or any new location where any of the records concerning
the Collateral may be located, or any proposed change in its name or its
proposed adoption of a trade name, assumed name or fictitious name. TES shall at
all times maintain all of its books and records with respect to the Collateral
at its principal executive office.
3.4 Further Assurances. TES, at its own expense, shall execute and
deliver such Uniform Commercial Code Financing Statements, Uniform Commercial
Code Amendments, Uniform Commercial Code Continuation Statements and such other
documents and instruments and shall take such further actions as may be
necessary or as may be reasonably requested by the
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Representative to carry out the purposes of this Security Agreement and to
perfect and to continue the perfected status of the security interest in the
Collateral granted to the Secured Parties pursuant hereto.
3.5 Maintenance of Priority Security Interest. TES shall pay and
discharge all other encumbrances upon the Collateral the lien of which could be
held prior to the security interest granted to the Secured Parties pursuant to
this Security Agreement, other than liens and security interests expressly
permitted hereunder.
4. Negative Covenants. TES hereby covenants and agrees with the Secured
Parties that it will observe and perform, or all of the following provisions
until all of the Secured Obligations have been paid in full to the Secured
Parties and this Security Agreement has been terminated:
4.1 Levies. TES shall not permit any of the Collateral to be levied
upon under any legal process.
4.2 Sale or Encumbrance of the Collateral. TES shall not, without the
prior written consent of the Secured Parties, sell, transfer, dispose of or
further encumber any of the Collateral, except for the grant of licenses
relating to the Collateral in the ordinary course of business.
4.3 Location of the Collateral. TES shall not, without at least
thirty (30) days prior written notice to the Representative, change the location
of its books and records maintained with respect to the Collateral if such
change of location would require the Secured Parties to file any additional
documents to continue the Secured Parties' perfection of their security interest
in the Collateral.
5. Representations and Warranties. TES represents and warrants to the
Secured Parties as follows, which representations and warranties shall be deemed
to be continuing representations and warranties and shall survive the execution
and delivery of this Security Agreement:
5.1 Location of the Collateral. The Collateral is used or will be
used for business purposes, and the Collateral and all books and records
concerning the Collateral are currently located at 0000 Xxxxxxxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000.
5.2 Places of Business; Names. TES currently has no place of business
other than as set forth in Section 5.3 hereof, nor has TES done business under
any name other than Xxxx Engineering & Sales, Inc.
5.3 Registered Office, Principal Office. The registered office of TES
is located at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. The
principal office and place of business of TES is located at 0000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
6. Events of Default. The following shall each constitute an "Event of
Default" hereunder:
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6.1 Default Under This Security Agreement. If TES shall breach,
violate or fail to perform or observe any covenant, obligation, agreement,
condition or other provision contained in this Security Agreement, and the same
is not cured to the reasonable satisfaction of the Representative within thirty
(30) days after the Secured Parties has specified such default in a written
notice delivered to TES.
6.2 Event of Default Under the Notes. The occurrence and continuation
of any Event of Default under and as defined in any of the Notes, to the extent
the same is not cured in accordance with the terms and provisions thereof.
7. Rights of the Secured Parties. Upon the occurrence and during the
continuation of any Event of Default, the Representative may declare all of the
Secured Obligations to be immediately due and payable on behalf of the Secured
Parties and may exercise all available rights and remedies of a secured party
under the Code or under any other applicable law, including, without limitation,
the right to take possession of the Collateral and, in addition thereto, the
right to enter upon any premises on which the Collateral or any part thereof may
be situated and remove the same therefrom. Unless the Collateral threatens to
decline speedily in value, the Representative will give the Debtor and TES at
least ten (10) days' prior written notice of the time and place of any public
sale thereof or of the time after which any private sale or any other intended
disposition thereof is to be made. Any such notice shall be deemed to meet any
requirement hereunder or under any applicable law that reasonable notification
be given of the time and place of such sale or other disposition. After
deducting all costs and expenses of collection, custody, sale or other
disposition and delivery of the Collateral, including reasonable legal costs and
attorneys' fees and all other charges against the Collateral, the residue of the
proceeds of any such sale or disposition shall be applied to the payment of the
Secured Obligations prorata among the Secured Parties in such order as the
Secured Parties may select, and any surplus after payment of the Secured
Obligations in full to the Secured Parties shall be returned to TES or to any
person or party lawfully entitled thereto. In the event the proceeds of any
sale, lease or other disposition of the Collateral hereunder are insufficient to
pay all of the Secured Obligations in full to the Secured Parties, the Debtor
will be liable for the deficiency thereof together with interest thereon at the
default rate, set forth in the Notes and the costs and expenses of collection of
such deficiency, including, to the extent permitted by law, reasonable legal
costs and attorneys' fees, expenses and disbursements.
8. Rights of Secured Parties to Use the Collateral. Upon any taking of
possession of the Collateral, as provided by Section 7 hereof, the Secured
Parties shall have the right to manage and control the Collateral and to carry
on the business and to exercise all rights and powers of TES in respect thereto
as the Secured Parties shall deem best, including, without limitation, the right
to enter into any and all such agreements with respect to the licensing of the
Collateral or any part thereof, subject to the rights of existing licensees, as
the Secured Parties may see fit; and the Secured Parties shall be entitled to
collect and receive all royalties, issues, profits, fees, revenues and other
income of the same and every part thereof. Such royalties, issues, profits,
fees, revenues and other income shall be applied to pay the expenses of holding
and operating the Collateral and of conducting the business thereof, and to make
all payments which the Secured Parties may be required or may elect to make, if
any, for taxes, assessments, insurance and other charges upon the Collateral or
any part thereof, and all other payments which the Secured Parties may be
required or authorized to make under any provision of this Security Agreement
including reasonable legal costs and attorneys' fees.
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The remainder of such royalties, issues, profits, fees, revenues and other
income shall be applied to the payment of the Secured Obligations, prorata to
the Secured Parties, in such order as the Secured Parties may select and, unless
otherwise provided by law or by a court of competent jurisdiction, any surplus
shall be returned to TES or to any person or party lawfully entitled thereto.
Without limiting the generality of the foregoing, the Representative shall have
the right to apply for and have a receiver appointed by a court of competent
jurisdiction in any action taken by the Secured Parties to enforce their rights
and remedies hereunder in order to manage, protect and preserve the Collateral
and to collect all royalties, issues, profits, fees, revenues and other income
thereof and apply the same to the payment of all expenses and other charges of
such receivership, including, without limitation, the compensation of the
receiver, and to the payment of the Secured Obligations as aforesaid until a
sale or other disposition of such Collateral shall be finally made and
consummated.
9. Waivers, Consents. TES consents to and waives notice of the granting
of renewals, extensions of time for payment or other indulgences to the Debtor,
or the substitution, release or surrender of any Collateral, the addition or
release of persons primarily or secondarily liable on any Secured Obligation or
other Collateral, and the acceptance of partial payments on any Secured
Obligation or the settlement or compromise thereof. No delay or omission on the
part of the Secured Parties in exercising any right hereunder shall operate as a
waiver of such right or of any other right hereunder. No waiver by the Secured
Parties or by any other holder of the Secured Obligations of any default
hereunder shall be effective unless in writing nor operate as a waiver of any
other default or of the same default on a future occasion. Any waiver of any
such right on any one occasion shall not be construed as a bar to or waiver of
the exercise of any such right on any future occasion.
10. Termination; Assignment. This Security Agreement and the security
interest in the Collateral created hereby shall terminate when all of the
Secured Obligations have been paid to the Secured Parties and finally discharged
in full. In the event of a sale or assignment by the Secured Parties of all or
any of the Secured Obligations, the Secured Parties may assign or transfer its
rights and interest under this Security Agreement in whole or in part to the
purchaser or purchasers of such Secured Obligations, whereupon such purchaser or
purchasers shall become vested with all of the powers and rights of the Secured
Parties hereunder.
11. Reinstatement. This Security Agreement shall continue in effect, or be
reinstated, as the case may be, at any time any amount received by the Secured
Parties in respect of the Secured Obligations is rescinded or must otherwise be
restored or returned by the Secured Parties upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Debtor or TES or upon the
appointment of an intervenor or conservator of, or trustee or similar official
for, the Debtor, TES or any substantial part of either of their properties, or
otherwise, all as though such payments had not been made.
12. Governing Law. This Security Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee.
13. Cumulative Rights and Remedies. All rights and remedies of the Secured
Parties as set forth in this Security Agreement shall, to the fullest extent
permitted by applicable law, be cumulative, and the exercise by the Secured
Parties of any right or remedy shall not be deemed to
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be an election of that right or remedy to the exclusion of any other right or
remedy of the Secured Parties.
14. Payment of Costs, Attorneys' Fees and Expenses. TES covenants and
agrees to pay any and all reasonable costs, attorneys' fees and other expenses
of whatever kind incurred by the Secured Parties in connection with (a)
enforcing this Security Agreement, (b) obtaining possession of the Collateral,
(c) the protection and preservation of the Collateral, (d) the collection of the
Secured Obligations or any part thereof, and (e) any litigation involving the
Collateral, any benefit accruing to the Secured Parties by virtue of the
provisions hereof or the rights of the Secured Parties hereunder.
15. Irrevocable Attorney-in-Fact. TES hereby irrevocably appoints the
Representative as TES's attorney-in-fact (a) to do all acts and things which the
Secured Parties may deem necessary or appropriate to perfect and to continue the
perfected status of the security interest created by this Security Agreement and
to protect the Collateral, including, without limitation, the execution in TES's
name, as its irrevocable attorney-in-fact, of Uniform Commercial Code Financing
Statements, Uniform Commercial Code Amendments and Uniform Commercial Code
Continuation Statements and other forms of the U.S. Patent and Trademark Office
covering the Collateral and the filing and recordation of the same, and (b)
following the occurrence of an Event of Default hereunder and during the
continuation thereof, to endorse, in the name of TES, all checks, drafts and
other instruments in payment of amounts owed in connection with the Collateral,
to give notices and receipts in TES's name, to collect and to bring suit to
collect or to compromise or to settle any such accounts, and to perform such
other acts in connection with the Collateral as the Representative determines to
be necessary or appropriate to effectuate the purposes of this Security
Agreement.
16. Reimbursement of Advances. TES shall reimburse the Secured Parties for
all reasonable payments made by the Secured Parties in performing any actions on
behalf of TES allowed hereunder, including, without limitation, all amounts paid
by the Secured Parties to discharge taxes, levies and liens against the
Collateral or to maintain, operate and preserve the Collateral. All such
advances made by the Secured Parties shall bear interest at the default rate set
forth in the Notes, and all such advances and all interest thereon shall
constitute part of the Secured Obligations, shall be secured by all of the
Collateral with the same priority as the Notes to the fullest extent permitted
by applicable law, and shall be due and payable in full to the Secured Parties
upon demand made therefor by the Secured Parties at any time in its sole and
absolute discretion.
17. Notices. All notices required or permitted to be given hereunder shall
be given in writing and shall be personally delivered or sent by an express
courier service or by registered or certified United States mail, return receipt
requested, postage prepaid, addressed as follows (or to such other address as to
which any party hereto shall have given the other written notice):
If to TES: Xxxx Engineering & Sales, Inc.
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
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If to the Secured Parties: LandOak Securities, LLC
00000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn:
All notices hereunder shall be deemed given upon actual receipt in accordance
with the foregoing.
18. Severability of Provisions; Tense. If any term or provision of this
Security Agreement is held to be invalid or unenforceable in any jurisdiction,
the other terms and provisions hereof shall remain in full force and effect in
such jurisdiction and the invalid or unenforceable provision shall remain in
full force and effect in all other jurisdictions. As used herein, the singular
includes the plural, and vice versa.
19. Successors and Assigns. This Security Agreement shall bind TES and its
successors and assigns and shall inure to the benefit of the Secured Parties and
their permitted successors and assigns.
20. Captions. The section headings have been inserted in this Security
Agreement for convenience of reference only and shall not affect the
interpretation of the substantive provisions hereof.
21. No Third Party Rights. Nothing contained in this Security Agreement
shall operate for the benefit of, or shall be construed to create or confer any
rights in favor of, any individuals, corporations, partnerships or other
entities not a party to this Security Agreement (excluding the respective
permitted successors and assigns of TES and the Secured Parties).
IN WITNESS WHEREOF, this Security Agreement has been executed by a duly
authorized officer of Xxxx Engineering & Sales, Inc. as of the date first above
written.
Xxxx Engineering & Sales, Inc.
By: /s/
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Xxxxxxx X. Xxxx, President
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EXHIBIT A
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Secured Parties
[list of note holders]
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