FORM OF SECURITY AGREEMENT

 

 

 

                                                                    Exhibit 99.3

 

                               SECURITY AGREEMENT

 

 

     THIS SECURITY AGREEMENT is made and entered into as of the 16th day of

December, 2004, by HAMILTON AEROSPACE TECHNOLOGIES, INC., a Delaware corporation

(hereinafter called "Debtor"), whose principal place of business is 6901 S. Park

Avenue, Tucson, AZ 85706 and whose mailing address is P.O. Box 23009, Tucson,

Arizona 85734-3009, in favor of M&I MARSHALL & ILSLEY BANK, a banking

corporation organized and existing under the laws of the State of Wisconsin, and

its successors and assigns (hereinafter called "Lender"), whose address is One

East Camelback Road, Phoenix, Arizona 85012-1647.

 

 

                                     RECITALS

 

     A. Lender has been requested or may be requested to make or to continue

loans or other financial accommodations to Debtor, subject to the terms and

conditions of that Loan Agreement of on or about even date herewith between

Lender and Borrower (the "Loan Agreement").

 

     B. It is a condition precedent to Lender's making any loan or financial

accommodation to Debtor that Debtor execute and deliver to Lender this Security

Agreement, and Debtor desires to grant the security interests in favor of Lender

provided herein.

 

     NOW, THEREFORE, in consideration of the promises contained herein and for

other good and valuable consideration, the receipt and sufficiency of which are

hereby acknowledged, the parties hereto agree as follows:

 

 

 

                                     AGREEMENT

 

 

1.    SECURITY INTEREST

 

     Debtor hereby grants to Lender a security interest (hereinafter called the

"Security Interest") in all of the property described on Exhibit A hereto in, to

or under which Debtor now has or hereafter acquires any right, title or

interest, whether present, future or contingent (hereinafter called the

"Collateral").

 

2.    OBLIGATION SECURED

 

     The Security Interest shall secure, in such order of priority as Lender may

elect, payment and performance of any and all indebtedness, obligations and

liabilities of Debtor to Lender of every kind and character, direct or indirect,

absolute or contingent, due or to become due, now existing or hereafter

incurred, whether such indebtedness is from time to time reduced and thereafter

increased or entirely extinguished and thereafter reincurred, including, without

limitation, all indebtedness and obligations under the Indebtedness (as defined

in the Loan Agreement). All of the indebtedness and obligations secured by this

Agreement are hereinafter collectively called the "Obligation." The Loan

Agreement, together with all other documents evidencing, securing or executed

and delivered in connection with the Obligation are herein called the "Loan

Documents". The account debtors or other persons obligated on any of the

Collateral are herein called the "Obligors."

 

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3.    ACTIONS FOR ATTACHMENT; PERFECTION AND FIRST PRIORITY

 

     3.1 Authorization to File Financing Statements. Debtor hereby irrevocably

authorizes Lender at any time and from time to time to file in any Uniform

Commercial Code jurisdiction any initial financing statements and amendments

thereto that Lender determines are necessary or appropriate in connection with

the Security Interest. Debtor agrees to furnish any additional information

requested by Lender in connection with such filings. Debtor also ratifies its

authorization for Lender to have filed in any Uniform Commercial Code

jurisdiction any like initial financing statements or amendments thereto if

filed prior to the date hereof.

 

     3.2 Other Actions. Debtor further agrees to take any other action

reasonably requested by Lender to insure the attachment, perfection and first

priority of, and the ability of Lender to enforce, Lender's security interest in

any and all of the Collateral including, without limitation, (a) executing,

delivering and, where appropriate, filing financing statements and amendments

relating thereto under the Uniform Commercial Code, to the extent, if any, that

Debtor's signature thereon is required therefor, (b) causing Lender'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

Lender to enforce, Lender's security interest in such Collateral, (c) 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 Lender to enforce, Lender's

security interest in such Collateral, (d) using its best efforts to obtain

control agreements and all necessary consents and approvals, including without

limitation any consent of any licensor, lessor or other person obligated on

Collateral, (e) obtaining waivers from mortgagees and landlords in form and

substance satisfactory to Lender, and (f) taking all actions required by any

applicable Uniform Commercial Code or by other applicable law.

 

4.    REPRESENTATIONS AND WARRANTIES OF DEBTOR

 

     Debtor hereby represents and warrants that:

 

     4.1 Legal Status. Debtor has previously delivered, or is concurrently

delivering, to Lender a certificate signed by Debtor and entitled "Perfection

Certificate" (the "Perfection Certificate"). Debtor represents and warrants to

Lender as follows: (a) Debtor's exact legal name is that indicated on the

Perfection Certificate and on the signature page hereof, (b) Debtor is an

organization of the type and organized in the jurisdiction set forth in the

Perfection Certificate, (c) the Perfection Certificate accurately sets forth

Debtor's organizational identification number or accurately states that Debtor

has none, (d) the Perfection Certificate accurately sets forth Debtor's place of

business or, if more than one, its chief executive office as well as Debtor's

mailing address, if different, and (e) all other information set forth on the

Perfection Certificate is accurate and complete.

 

     4.2 Collateral. Debtor further represents and warrants to Lender as

follows: (a) Debtor is the owner of the Collateral, free from any adverse lien,

security interest or other encumbrance, except for the security interest created

 

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by this Agreement and Permitted Liens, (b) the Collateral is, and is intended to

be, used, produced or acquired by Debtor primarily for business purposes, (c)

none of the Collateral constitutes, or is the proceeds of, "farm products," as

defined in the applicable Uniform Commercial Code, (d) Debtor currently holds no

commercial tort claim, (e) Debtor has at all times operated its business in

compliance with all applicable provisions of the federal Fair Labor Standards

Act, as amended, and with all applicable provisions of federal, state and local

statutes and ordinances dealing with the control, shipment, storage or disposal

of hazardous materials or substances, and (f) all other information set forth on

the Perfection Certificate pertaining to the Collateral is accurate and

complete.

 

5.    COVENANTS OF DEBTOR

 

     5.1 Legal Status. Debtor covenants with Lender as follows: (a) without

providing at least 30 days' prior written notice to Lender, Debtor will not

change its name, its place of business or, if more than one, chief executive

office, or its mailing address or organizational identification number if it has

one, (b) if Debtor does not have an organizational identification number and

later obtains one, Debtor shall forthwith notify Lender of such organizational

identification number, and (c) Debtor will not change its type of organization,

jurisdiction of organization or other legal structure.

 

     5.2 Collateral. Debtor further covenants with Lender as follows: (a) the

Collateral, to the extent not delivered to Lender pursuant to Section 4, will be

kept at those locations listed on the Perfection Certificate and Debtor will not

remove the Collateral from such locations, without providing at least 30 days'

prior written notice to Lender, (b) except for the security interest herein

granted and Permitted Liens, Debtor shall be the owner of the Collateral free

from any lien, security interest or other encumbrance, and Debtor shall defend

the same against all claims and demands of all persons at any time claiming the

same or any interests therein adverse to Lender, (c) Debtor shall not pledge,

mortgage or create, or suffer to exist a security interest in the Collateral in

favor of any person other than Lender except for Permitted Liens, (d) Debtor

will keep the Collateral in good order and repair and will not use the same in

violation of law or any policy of insurance thereon, (e) Debtor will pay

promptly when due all taxes, assessments, governmental charges and levies upon

the Collateral or incurred in connection with the use or operation of such

Collateral or incurred in connection with this Agreement, (f) Debtor will

continue to operate its business in compliance with all applicable provisions of

the federal Fair Labor Standards Act, as amended, and with all applicable

provisions of federal, state and local statutes and ordinances dealing with the

control, shipment, storage or disposal of hazardous materials or substances, and

(g) Debtor will not sell or otherwise dispose, or offer to sell or otherwise

dispose, of the Collateral or any interest therein except for (i) sales of

inventory in the ordinary course of business, and (ii) so long as no Event of

Default has occurred and is continuing, sales or other dispositions of

obsolescent items of equipment in the ordinary course of business consistent

with past practices.

 

     5.3 Insurance. Debtor shall provide and maintain insurance insuring the

Collateral against risks, with coverage and in form and amount satisfactory to

Lender. At Lender's request, Debtor shall deliver to Lender the original

policies of insurance containing endorsements naming Lender as a loss payee.

 

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     5.4 Fixtures. Debtor shall prevent any portion of the Collateral that is

not a fixture from being or becoming a fixture and shall prevent any portion of

the Collateral from being or becoming an accession to other goods that are not

part of the Collateral.

 

     5.5 Inspection. Lender or its agents may inspect the Collateral at

reasonable times and may enter into any premises where the Collateral is or may

be located. Debtor shall keep records concerning the Collateral in accordance

with generally accepted accounting principles and, unless waived in writing by

Lender, shall mark its records and the Collateral to indicate the Security

Interest. Lender shall have free and complete access to Debtor's records and

shall have the right to make extracts therefrom or copies thereof. Upon request

of Lender from time to time, Debtor shall submit up-to-date schedules of the

items comprising the Collateral in such detail as Lender may require and shall

deliver to Lender confirming specific assignments of all accounts, instruments,

documents and chattel paper included in the Collateral.

 

     5.6 Protection. Debtor, at its cost and expense, shall protect and defend

this Agreement, all of the rights of Lender hereunder, and the Collateral

against all claims and demands of other parties, including without limitation

defenses, setoffs, claims and counterclaims asserted by any Obligor against

Debtor and/or Lender. Debtor shall pay all claims and charges that, in Lender's

judgment, might prejudice, imperil or otherwise affect the Collateral or the

Security Interest. Debtor shall promptly notify Lender of any levy, distraint or

other seizure by legal process or otherwise of any part of the Collateral and of

any threatened or filed claims or proceedings that might in any way affect or

impair the terms of this Agreement.

 

     5.7 Right to Pay. If Debtor shall fail to pay any taxes, assessments,

expenses or charges, to keep all of the Collateral free from other security

interests, encumbrances or claims, to keep the Collateral in good condition and

repair, to procure and maintain insurance thereon, or to perform otherwise as

required herein, Lender may advance the monies necessary to pay the same, to

accomplish such repairs, to procure and maintain such insurance or to so

perform; Lender is hereby authorized to enter upon any property in the

possession or control of Debtor for such purposes.

 

     5.8 Benefit of Lender. All rights, powers and remedies granted Lender

herein, or otherwise available to Lender, are for the sole benefit and

protection of Lender, and Lender may exercise any such right, power or remedy at

its option and in its sole and absolute discretion without any obligation to do

so. In addition, if under the terms hereof, Lender is given two or more

alternative courses of action, Lender may elect any alternative or combination

of alternatives at its option and in its sole and absolute discretion. All

monies advanced by Lender under the terms hereof and all amounts paid, suffered

or incurred by Lender in exercising any authority granted herein, including

reasonable attorneys' fees, shall be added to the Obligation, shall be secured

by the Security Interest, shall bear interest at the highest rate payable on any

of the Obligation until paid, and shall be due and payable by Debtor to Lender

immediately without demand.

 

6.    ACTIONS REGARDING COLLATERAL; POWER OF ATTORNEY

 

     6.1 Securities and Deposits. Lender may at any time, after the occurrence

of an Event of Default, at its option, transfer to itself or any nominee any

securities constituting Collateral, and if Lender receives any income thereon

 

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either hold such income as additional Collateral or apply it to the Obligations.

After the occurrence of an Event of Default, whether or not any Obligations are

due, Lender may demand, sue for, collect, or make any settlement or compromise

which it deems desirable with respect to the Collateral. Regardless of the

adequacy of Collateral or any other security for the Obligations, any deposits

or other sums at any time credited by or due from Lender to Debtor may at any

time be applied to or set off against any of the Obligation.

 

     6.2 Notify Obligors. Lender, without notice to Debtor, may notify any or

all of the Obligors of the existence of the Security Interest and may direct the

Obligors to make all payments on the Collateral to Lender, after the occurrence

of an Event of Default. Until Lender has notified the Obligors to remit payments

directly to it, Debtor, at Debtor's own cost and expense, shall collect or cause

to be collected the accounts and monies due under the accounts, documents,

instruments and general intangibles or pursuant to the terms of the chattel

paper. Lender shall not be liable or responsible for any embezzlement,

conversion, negligence or default by Debtor or Debtor's agents with respect to

such collections; all agents used in such collections shall be agents of Debtor

and not agents of Lender. Unless Lender notifies Debtor in writing that it

waives one or more of the requirements set forth in this sentence, any payments

or other proceeds of Collateral received by Debtor, before or after notification

to Obligors, shall be held by Debtor in trust for Lender in the same form in

which received, shall not be commingled with any assets of Debtor and shall be

turned over to Lender not later than the next business day following the day of

receipt. All payments and other proceeds of Collateral received by Lender

directly or from Debtor shall be applied to the Obligation in such order and

manner and at such time as Lender, in its sole discretion, shall determine. In

addition, Debtor shall promptly notify Lender of the return to or possession by

Debtor of goods underlying any Collateral; Debtor shall hold the same in trust

for Lender and shall dispose of the same as Lender directs.

 

      6.3 Enforce Collateral. Lender, af