Professional Documents
Culture Documents
605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
Plaintiff,
AFFIDAVIT OF BRETT
-against- SCHNEIDER IN SUPPORT OF
MOTION FOR ORDER
LUMINATI AEROSPACE LLC and 400 DAVID OF SEIZURE
COURT LLC,
Defendants.
.......___________________________________________________________.
STATE OF CONNECTICUT )
) SS.:
COUNTY OF FAIRFIELD )
("Hexcel").
including equipment, pledged as security in connection with a loan made by Hexcel to defendant
Luminati Aerospace LLC ("Luminati"). I submit.this affidavit in support of Hexcel's motion for
3. Based on the clear terms of a Convertible Secured Promissory Note dated May
12, 2016, entered into between Hexcel and Luminati (the "Note"), the Guaranty and Security
Agreement, dated May 12, 2016, between and among Hexcel, Luminati, and Luminati's wholly
owned subsidiary, defendant 400 David Court LLC ("400 David Court") (the "Guaranty and
Security Agreement"), and the Mortgage, Assignment of Leases and Rents, and Security
Agreement between 400 David Court and Hexcel, dated June 17, 2016 (the "Mortgage"), and the
facts set forth in this Affidavit, Hexcel is entitled to an order of seizure and possession of the
57089/0002-16954784v5
1 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
the equipment. (Defendants Luminati and 400 David Court are referred to
collateral, including
together as "Defendants"). (The Note, Guaranty and Security Agreement, and the Mortgage are
The Note
Convertible Secured Promissory Note, dated May 12, 2016, and executed by Imminati (the
"Note"). (A true and accurate copy of the Note is annexed hereto as Exhibit "A").
5. Pursuant to the Note, Luminati agreed to "use the proceeds of the loan hereunder
to repay all liabilities under the mortgage loan secured by the Calverton Property (such
liabilities, the "Calverton Loan"); the amounts remaining after such repayment may be used by
the Compey (i) to purchase certain equipment as set forth on Exhibit A hereto (which purchase
shall not be subject to Section 11.10.1 hereunder); (ii) for working capital purposes; and (iii) to
facilities."
upgrade and expand the Company's facilities or acquire additional (Note, § 7).
6. Pursuant to the Note, the Maturity Date to repay the Outstanding Balance, as
defined in the Note, and all unpaid accrued interest, is May 12, 2023. (Note, § 2).
Defendants'
7. Pursuant to the Note, "material breach of any term, covenant or
Note"
agreement in (a) the Guaranty and Security Agreement, (b) the Mortgage or (c) this
constitutes an event of default entitling Plaintiff to, among other things, accelerate the entire
knlanne due, togcther with interest, and foreclose on the pledged collateral, the
including
8. Specifically, the Note provides that upon a default, "Hexcel may, at its election,
(i) accelerate repayment of the Outstanding Balance in which case the Outstanding Balance and
all interest accracd thereon shall be due and payable immediately; (ii) exercise all remedies
2
57089/0002-16954784v5
2 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
available to Hexcel under the Guaranty and Security Agreement and the Uniform Commercial
it."
Code and the Mortgage; and (iii) pursue any legal or equitable remedies available to (Note, §
10.2).
9. In sum, Defendants agreed that in the event of default, Plaintiff had, in addition to
any rights and remedies available at law or in equity, the clear and unequivocal contractual rights
to: (i) accelerate all payments due and owing from Defendants; (ii) immediately take possession
and control of all collateral; and (iii) foreclose upon the collateral to collect all sums due,
attorneys'
including the principal balance, default interest, and all of Plaintiff's reasonable fees
and costs.
10. In order to secure the payment and performance of Luminati's obligations under
the Note, Luminati and its wholly owned subsidiary, 400 David Court, entered into the Guaranty
and Security Agreement. (A true and accurate copy of the Guaranty and Security Agreement is
11. Pursuant to the Guaranty and Security Agreement, Lmninati and 400 David Court
granted Hexcel a security interest in all equipment listed on Schedule 2 of the Guaranty and
Security Agreemeñt (the "Equipment"), all Intellectual Property related to Hexcel Core
Technology (excluding Intellectual Property listed on Schedule 3 to the Guaranty and Security
Agreement), autoclaves, all books and records, and all proceeds and products of any of those (the
12. Plaintiff duly perfected its security interest in the Collateral, including the
Equipment, on or about May 13, 2016, when it recorded two UCC-1 Financing Statements.
(True and accurate copies of the Delaware UCC-1 Finañeing Statements are annered hereto as
3
57089/0002-16954784v5
3 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
Exhibit "C"). Specifically, Plaintiff filed UCC-1 Financing Statements with the Delaware
13. To protect the Collateral for the benefit of Hexcel, Defendants also agreed to
maintain insurance policies insuring the Collateral against loss or damage. (Cüarâñty and
14. Pursuant to the Note, any failure by Defendants to maintain insurance constitutes
a material breach of the Guaranty and Security Agreement and a Default, which, if uncured
within (30) days, entitles Plaintiff to, other things, acccicrate the entire balance due,
thirty among
together with interest, and foreclose on the Collateral. (Note, §§ 10.3.1 and 10.2).
15. In the event of a Default, Defendants also agreed, in addition to all other rights
and remedies provided to Hexcel, to assemble the Collateral and make it available to Hexcel.
16. The Guaranty and Security Agreement obligates Defendants to pay all reasonable
expenses incurred by Plaintiff in enforcing the obligations due under the Note and the Guaranty
attorneys'
and Security Agreement, including reasonable fees. (Guaranty and Security
Agreement, § 5.2).
17. Pursuant to the Guaranty and Security Agreement, 400 David Court promised to
unconditionally guarantee the payment of all of Luminati's obligations to Hexcel. The Guaranty
4
57089/0002-16954784v5
4 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
any and all expenses which may be incurred by the Secured Party
in collecting any of the Obligations. In addition, if any or all of the
Obligations become due and payable hereunder, each Guarantor,
The Mortgage
18. In order to further secure the payment and performance of Luminati's and 400
David Court's obligations under the Note and the Guaranty and Security Agreement, 400 David
Court entered into the Mortgage. (A true and accurate copy of the Mortgage is annexad hereto as
19. The Mortgage encumbers and grants a security interest in certain commercial real
property owned by 400 David Court and located at 400 David Court, Calverton in the Town of
Riverhead, County of Suffolk, and State of New York, which property is more particularly
20. The Mortgage was duly recorded in the Office of the Clerk of Suffolk County,
State of New York on September 20, 2016, in Liber 22738, Page 332.
21. Pursuant to the Mortgage, 400 David Court is required to obtain and maintain, or
cause to be maintained, insurance for property defined in the Mortgage, including, but not
limited to, the land, building, improvements, eascriiciits, fixtures and personal property, leases
5
57089.0002-16954784v5
5 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
and rents, insurance proceeds, condemnation awards, agreements and other rights pertaining to
the use of the land and its improvements, as specified in the Mortgage. (Mortgage, §§1.1, 3.3).
22. The Mortgage also requires 400 David Court to pay all taxes levied, assessed or
imposed against the Mortgaged Property or any part, and all federal, state, county, municipal,
and city income and other taxes and liabilities which are due or have been assessed. (Mortgage,
agreement"
23. The Mortgage also serves as a "security within the meaning of the
Uniform Commercial Code and grants Hexcel a security interest not only in the land,
improvements, and easements, but in Personal Property, as defiñêd by the Mortgage, owned by
24. Pursuant to the Mortgage, 400 David Court pledged all of their right, title, estate,
or shall have interest, now or hereafter located upon the Land and
Property"), and the right, title and interest of Grantor in and to any
of the Personal Property which may be subject to any security
interests, as defined in the Uniform Commercial Code, as adopted
6
57089 0002-16954784v5
6 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
(Mortgage, § 1.1(e)). (The Collateral as defined in the Guaranty and Security Agreement and the
Personal Property as defined in the Mortgage shall be together defined herein as the
"Collateral").
25. Certain of the Collateral, including, but not limited to, certain of the Equipment,
26. In addition to the UCC-1 Financing Statement filed in Delaware pursuant to the
Guaranty and Security Agreement, on or about October 4, 2016, Plaintiff also filed a UCC-1
Financing Statest with the New York Department of State in which Plaintiff duly perfected its
security interests as described in the Mortgage. (A true and accurate copy of the UCC-1
The Defaults
27. 400 David Court has failed to pay property taxes on the Mortgaged Property as
required by the Mortgage, § 3.4, which is a material breach of the Mortgage and constitutes a
Default pursuant to Sections 10.2.1 and 10.3.1 of the Note and an Event of Default pursuant to
28. Luminati has failed to pay rent to Laoudis of Calverton, LLC, the k=&.rd of
certain real property (the "Landlord") located at 350 Burman Boulevard, Calverton, New York
29. Daniel Preston, the Chief Executive Officer of both Defendants, has expressly
told Plaintiff that Luminati has failed to pay rent to the Landlord and that certain of the Collateral
"scrapped"
will be as a result of this failure to pay rent, thereby placing in jeopardy the Collateral
in violation of the Loan Documents, including, but not limited to, Sections 4.4 and 4.5of the
7
57089/0002-16954784v5
7 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
Guaranty and Security Agreement, which prohibit Luminati from disposing of any of the
Collateral and require it to defend against any lien, claim, or demand against the Collateral.
Suffolk, of the State of New York District Court, seeking to evict Luminati from its property.
policies insuring the Collateral against loss or damage, which failure constitutes a material
breach of the Guaranty and Security Agreset and a Default pursuant to the Note. (Guaranty
and Security Agreement, § 4.6; Note, §10.3.1), and that 400 David Court has failed to maiñtaiñ
insurance for the Mortgaged Property as required by the Mortgage, which is a material breach of
the Mortgage, § 3.3, and constitutes a Default pursuant to the Note, §10.3.1, and an Event of
32. As a result of these Defaults, on January 24, 2019, Plaintiff issued a Notice of
Event of Default (the "Default Notice") to Defendants pursuant to Section 10.2 of the Note and
provided Defendants with thirty (30) days to cure the Defaults. (A true and accurate copy of the
33. Despite acknowledging receipt of the Default Notice, Defêñdants have failed to
34. Pursuant to Section 10.2 of the Note, Section 5.2 of the Guaranty and Security
Agramet, Section 11.1(i) of the Mortgage, and Sections 9-604(c) and 9-609(a)(1) & (c) of the
8
57089/0002-16954784v5
8 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
35. On February 26, 2019, Plaintiff sent a letter to Defendants advising them that
because of their failure to cure the Defaults, it was accelerating the payment of the Outstanding
Balance due under the Note and exercising all rights and remedies available to it under Note, the
Guaranty and Security Agreement, and the Mortgage and demalided Defedalits ass-ibic the
Equipment identified on Schedule 2 to the Guarañty and Security Agreement and make it
available to Hexcel. (A true and accurate copy of the Demand Letter is annexed hereto as Exhibit
"G").
36. As of the filing of this Complaint, Defendants have refused to deliver the
37. The aforesaid Collateral is being wrongfully held by Luminati and 400 David
Court.
38. Upon information and belief, the value of the Collateral Plaintiff seeks to seize is
approximately $7,400,000.
39. The value of the Collateral is based upon the descriptions of the Equipment
identified on Schedule 2 of the Guaranty and Security Agreement, the list price of the Equipment
from the mauüfacturers when new (which was approximately 2.5 years ago), the amount
Luminati paid to obtain the Equipment from a prior owner (which was 60% of the list price), and
40. Based upon statements made by Daniel Preston, the Collateral is located at 400
David Court, Calverton, New York 11933 and 350 Burman Boulevard, Calverton, New York
11933. The Equipscat is not easily moved and will need to be secured where it is located so
that Plaintiff can inspect the Equipmcat and any other Collateral found at those sites prior to a
9
57089 0002-16954784v5
9 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
42. Simultaneous with the filing of its application, Hexcel has submitted an
undertaking in the amount of $14,800,000.00, which is not less than twice the value of the chattel
at issue.
43. A denial of Hexcel's application may result in the transfer or dissipation of the
Collateral and substantially impair Hexcel's ability to enforce its rights against Luminati and 400
David Court.
44. Simultãüeously, with the filing of this application, Plaintiff has filed a summons
and complaint to recover the possession of the Collateral. (A true and accurate copy of Hexcel's
Complaint dated March 18, 2019, in this action, without exhibits, is anna ed hereto as Exhibit
"H").
"I"
45. A form Order of Seizure is annexed hereto as Exhibit for the Court's
consideration.
46. No previous application has been made for the relief requested to this or any other
Court.
Based on the foregoing, Hexcel respectfully requests the Court grant an order of seizure,
pursuant to CPLR § 7102, directing the sheriff of any county where the aforesaid
Collateral is found to seize the same, and further directing that if the Collateral is not
delivered to the sheriff, he/she may break open, enter, and search for the Collateral at 400
David Court, Calverton, New York, 11933, and 350 Burman Boulevard, Calverton, New
York 11933, and grant such other and further relief as to the Court shall seem just and
proper.
Brett Schneider
10
57089/0002-16954784v5
10 of 11
FILED: SUFFOLK COUNTY CLERK 03/18/2019 04:12 PM INDEX NO. 605215/2019
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 03/18/2019
State of Connecticut
ss. Stamford
County of Fairfield
1.8d'
On this the day of March, 2019, before me, Joyce R. Kanto_r the undersigned officer,
Fibers of Hexcel Corporation, a corporation, and that he as such President-Global Fibers, being
authorized so to do executed the foregoing instrument for the purposes therein contained, by
Joyce R. Kantor
Notary Publio-Connecticut
My Commission Expires
August 31, 2021
. ___ . .. .._ ........ _
11
57089/0002-16954784v5
11 of 11