SECURITY AGREEMENT
Exhibit 10.5
1. Identification.
This Security Agreement (the “Agreement”), dated as of February 5, 2010, is entered into by
and between Rootzoo, Inc., a Delaware corporation (“Debtor”) and EClips Energy Technologies, Inc.,
a Florida corporation (the “Lender”).
2. Recitals.
2.1 At or about the date hereof, the Lender will make a series of Loans (the “Loans”) to
Debtor. It is beneficial to Debtor that the Loans are made.
2.2 The Loans will be evidenced by a promissory note (the “Note”) issued by Debtor on or about
the date of this Agreement to which Debtor and Lender are parties. The Note is in the principal
amount of up to $100,000.00 and is or will be executed by Debtor as “Borrower” or “Debtor” for the
benefit of Lender as the “Holder” or “Lender” thereof.
2.3 In consideration of the Loans made and to be made by Lender to Debtor and for other good
and valuable consideration, and as security for the performance by Debtor of its obligations under
the Note, and as security for the repayment of the Loans and all other sums due from Debtor to
Lender and any other agreement between or among them (collectively, the “Obligations”), Debtor, for
good and valuable consideration, receipt of which is acknowledged, has agreed to grant to the
Lender a security interest in the Collateral (as such term is hereinafter defined), on the terms
and conditions hereinafter set forth. Obligations include all future advances and Loans by Lender
to Debtor that may be made pursuant to any other agreement between or among them.
2.4 The following defined terms which are defined in the Uniform Commercial Code in effect in
the State of New York on the date hereof are used herein as so defined: Accounts, Chattel Paper,
Documents, Equipment, General Intangibles, Instruments, Inventory and Proceeds. Other capitalized
terms employed herein shall have the meanings attributed to them in the Subscription Agreement.
3. Grant of General Security Interest in Collateral.
3.1 As security for the Obligations of Debtor, Debtor hereby grants the Lender, a security
interest in the Collateral.
3.2 “Collateral” shall mean all of the following property of Debtor:
(A) All now owned and hereafter acquired right, title and interest of Debtor in, to and in
respect of all Accounts, Goods, real or personal property, all present and future books and records
relating to the foregoing and all products and Proceeds of the foregoing, and as set forth below:
(i) All now owned and hereafter acquired right, title and interest of Debtor in, to and in
respect of all: Accounts, interests in goods represented by Accounts, returned, reclaimed or
repossessed goods with respect thereto and rights as an unpaid vendor; contract rights; Chattel
Paper; investment property; General Intangibles (including but not limited to, tax and duty claims
and refunds, registered and unregistered patents, trademarks, service marks, certificates,
copyrights trade names, applications for the foregoing, trade secrets, goodwill, processes,
drawings, blueprints, customer lists, licenses, whether as licensor or licensee, choses in action
and other claims, and existing and future leasehold interests and claims in and to equipment, real
estate and fixtures); Documents; Instruments; letters of credit,
bankers’ acceptances or guaranties; cash moneys, deposits; securities, bank accounts, deposit
accounts, credits and other property now or hereafter owned or held in any capacity by Debtor, as
well as agreements or property securing or relating to any of the items referred to above;
(ii) Goods: All now owned and hereafter acquired right, title and interest of Debtor
in, to and in respect of goods, including, but not limited to:
(a) All Inventory, wherever located, whether now owned or hereafter acquired, of whatever
kind, nature or description, including all raw materials, work-in-process, finished goods, and
materials to be used or consumed in Debtor’s business; finished goods, timber cut or to be cut,
oil, gas, hydrocarbons, and minerals extracted or to be extracted, and all names or marks affixed
to or to be affixed thereto for purposes of selling same by the seller, manufacturer, lessor or
licensor thereof and all Inventory which may be returned to Debtor by its customers or repossessed
by Debtor and all of Debtors’ right, title and interest in and to the foregoing (including all of
Debtor’s rights as a seller of goods);
(b) All Equipment and fixtures, wherever located, whether now owned or hereafter acquired,
including, without limitation, all machinery, furniture and fixtures, and any and all additions,
substitutions, replacements (including spare parts), and accessions thereof and thereto (including,
but not limited to Debtor’s rights to acquire any of the foregoing, whether by exercise of a
purchase option or otherwise);
(iii) Property: All now owned and hereafter acquired right, title and interests of
Debtor in, to and in respect of any other personal property in or upon which Debtor has or may
hereafter have a security interest, lien or right of setoff;
(iv) Books and Records: All present and future books and records relating to any of
the above including, without limitation, all computer programs, printed output and computer
readable data in the possession or control of the Debtor, any computer service bureau or other
third party; and
(v) Products and Proceeds: All products and Proceeds of the foregoing in whatever
form and wherever located, including, without limitation, all insurance proceeds and all claims
against third parties for loss or destruction of or damage to any of the foregoing.
(B) All now owned and hereafter acquired right, title and interest of Debtor in, to and in
respect of the following:
(i) all shares of stock, partnership interests, member interests or other equity interests
from time to time acquired by Debtor, in any current Subsidiary or any Subsidiary that is not a
Subsidiary of the Debtor on the date hereof (“Future Subsidiaries”), the certificates representing
such shares, and other rights, contractual or otherwise, in respect thereof and all dividends,
distributions, cash, instruments, investment property and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for any or all of such
shares, interests or equity; and
(ii) all security entitlements of Debtor in, and all Proceeds of any and all of the foregoing
in each case, whether now owned or hereafter acquired by Debtor and howsoever its interest therein
may arise or appear (whether by ownership, security interest, lien, claim or otherwise).
3.3 The Lender are hereby specifically authorized, after the Lender makes demand for repayment
of the Note in accordance with the terms of the Note, and after the occurrence of an Event of
Default (as defined herein) and the expiration of any applicable cure period, to transfer any
Collateral into
the name of the Lender and to take any and all action deemed advisable to the Lender to remove
any transfer restrictions affecting the Collateral.
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4. Perfection of Security Interest.
4.1 Debtor shall prepare, execute and deliver to the Lender UCC-1 Financing Statements. The
Lender is instructed to prepare and file at Debtor’s cost and expense, financing statements in such
jurisdictions deemed advisable to Lender, including but not limited to the State of New York.
4.2 All other certificates and instruments constituting Collateral from time to time required
to be pledged to Lender pursuant to the terms hereof (the “Additional Collateral”) shall be
delivered to Lender promptly upon receipt thereof by or on behalf of Debtor. All such certificates
and instruments shall be held by or on behalf of Lender pursuant hereto and shall be delivered in
suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment or undated stock powers executed in blank, all in form and substance
satisfactory to Lender. If any Collateral consists of uncertificated securities, unless the
immediately following sentence is applicable thereto, Debtor shall cause Lender (or its custodian,
nominee or other designee) to become the registered holder thereof, or cause each issuer of such
securities to agree that it will comply with instructions originated by Lender with respect to such
securities without further consent by Debtor. If any Collateral consists of security entitlements,
Debtor shall transfer such security entitlements to Lender (or its custodian, nominee or other
designee) or cause the applicable securities intermediary to agree that it will comply with
entitlement orders by Lender without further consent by Debtor.
4.3 If Debtor shall receive, by virtue of Debtor being or having been an owner of any
Collateral, any (i) stock certificate (including, without limitation, any certificate representing
a stock dividend or distribution in connection with any increase or reduction of capital,
reclassification, merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off), promissory note or other instrument, (ii) option or right, whether as an
addition to, substitution for, or in exchange for, any Collateral, or otherwise, (iii) dividends
payable in cash (except such dividends permitted to be retained by Debtor pursuant to Section 5.2
hereof) or in securities or other property or (iv) dividends or other distributions in connection
with a partial or total liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in surplus, Debtor shall receive such stock certificate, promissory note,
instrument, option, right, payment or distribution in trust for the benefit of Lender, shall
segregate it from Debtor’s other property and shall deliver it forthwith to Lender, in the exact
form received, with any necessary endorsement and/or appropriate stock powers duly executed in
blank, to be held by Lender as Collateral and as further collateral security for the Obligations.
5. Distribution.
5.1 So long as an Event of Default does not exist, Debtor shall be entitled to exercise all
voting power pertaining to any of the Collateral, provided such exercise is not contrary to the
interests of the Lender and does not impair the Collateral.
5.2. At any time an Event of Default exists or has occurred and is continuing, all rights of
Debtor, upon notice given by Lender, to exercise the voting power and receive payments, which it
would otherwise be entitled to pursuant to Section 5.1, shall cease and all such rights shall
thereupon become vested in Lender, which shall thereupon have the sole right to exercise such
voting power and receive such payments.
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5.3 All dividends, distributions, interest and other payments which are received by Debtor
contrary to the provisions of Section 5.2 shall be received in trust for the benefit of Lender as
security and
Collateral for payment of the Obligation, shall be segregated from other funds of Debtor, and
shall be forthwith paid over to Lender as Collateral in the exact form received with any necessary
endorsement and/or appropriate stock powers duly executed in blank, to be held by Lender as
Collateral and as further collateral security for the Obligations.
6. Further Action By Debtor; Covenants and Warranties.
6.1 Subject to the terms of this Agreement, Lender at all times shall have a perfected
security interest in the Collateral. Debtor represents that, other than the security interests
described on Schedule 6.1, it has and will continue to have full title to the Collateral free from
any liens, leases, encumbrances, judgments or other claims. The Lender’s security interest in the
Collateral constitutes and will continue to constitute a first, prior and indefeasible security
interest in favor of Lender, subject only to the security interests described on Schedule 6.1.
Debtor will do all acts and things, and will execute and file all instruments (including, but not
limited to, security agreements, financing statements, continuation statements, etc.) reasonably
requested by Lender to establish, maintain and continue the perfected security interest of Lender
in the perfected Collateral, and will promptly on demand, pay all costs and expenses of filing and
recording, including the costs of any searches reasonably deemed necessary by Lender from time to
time to establish and determine the validity and the continuing priority of the security interest
of Lender, and also pay all other claims and charges that, in the opinion of Lender are reasonably
likely to materially prejudice, imperil or otherwise affect the Collateral or Lender’ security
interests therein.
6.2 Except (i) in connection with sales of Collateral, in the ordinary course of business, for
fair value and in cash, and (ii) Collateral which is substituted by assets of identical or greater
value (subject to the consent of the Lender) or which is inconsequential in value, Debtor will not
sell, transfer, assign or pledge those items of Collateral (or allow any such items to be sold,
transferred, assigned or pledged), without the prior written consent of Lender other than a
transfer of the Collateral to a wholly-owned United States formed and located subsidiary on prior
notice to Lender, and provided the Collateral remains subject to the security interest herein
described. Although Proceeds of Collateral are covered by this Agreement, this shall not be
construed to mean that Lender consent to any sale of the Collateral, except as provided herein.
Sales of Collateral in the ordinary course of business and as described above shall be free of the
security interest of Lender and Lender shall promptly execute such documents (including without
limitation releases and termination statements) as may be required by Debtor to evidence or
effectuate the same.
6.3 Debtor will, at all reasonable times during regular business hours and upon reasonable
notice, allow Lender or their representatives free and complete access to the Collateral and all of
Debtor’s records that in any way relate to the Collateral, for such inspection and examination as
Lender reasonably deem necessary.
6.4 Debtor, at its sole cost and expense, will protect and defend this Security Agreement, all
of the rights of Lender hereunder, and the Collateral against the claims and demands of all other
persons.
6.5 Debtor will 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 are reasonably likely to affect or impair any of the rights of Lender under this
Security Agreement in any material respect.
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6.6 Debtor, at its own expense, will obtain and maintain in force insurance policies covering
losses or damage to those items of Collateral which constitute physical personal property, which
insurance shall be of the types customarily insured against by companies in the same or similar
business, similarly situated, in such amounts (with such deductible amounts) as is customary for
such companies under the same or similar circumstances, similarly situated. Debtor shall make the
Lender loss payee thereon to the extent of
its interest in the Collateral. Lender is hereby irrevocably (until the Obligations are
indefeasibly paid in full) appointed Debtor’s attorney-in-fact to endorse any check or draft that
may be payable to Debtor so that Lender may collect the proceeds payable for any loss under such
insurance. The proceeds of such insurance, less any costs and expenses incurred or paid by Lender
in the collection thereof, shall be applied either toward the cost of the repair or replacement of
the items damaged or destroyed, or on account of any sums secured hereby, whether or not then due
or payable.
6.7 In order to protect the Collateral and Lender’ interest therein, Lender may, at Lender’
option, and without any obligation to do so, pay, perform and discharge any and all amounts, costs,
expenses and liabilities herein agreed to be paid or performed by Debtor upon Debtor’s failure to
do so. All amounts expended by Lender in so doing shall become part of the Obligations secured
hereby, and shall be immediately due and payable by Debtor to Lender upon demand and shall bear
interest at the lesser of 15% per annum or the highest legal amount allowed from the dates of such
expenditures until paid.
6.8 Upon the request of Lender, Debtor will furnish to Lender within five (5) business days
thereafter, or to any proposed assignee of this Security Agreement, a written statement in form
reasonably satisfactory to Lender, duly acknowledged, certifying the amount of the principal and
interest and any other sum then owing under the Obligations, whether to its knowledge any claims,
offsets or defenses exist against the Obligations or against this Security Agreement, or any of the
terms and provisions of any other agreement of Debtor securing the Obligations. In connection with
any assignment by Lender of this Security Agreement, Debtor hereby agrees to cause the insurance
policies required hereby to be carried by Debtor, if any, to be endorsed in form satisfactory to
Lender or to such assignee, with loss payable clauses in favor of such assignee, and to cause such
endorsements to be delivered to Lender within ten (10) calendar days after request therefor by
Lender.
6.9 Debtor will, at its own expense, make, execute, endorse, acknowledge, file and/or deliver
to the Lender from time to time such vouchers, invoices, schedules, confirmatory assignments,
conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports
and other reasonable assurances or instruments and take further steps relating to the Collateral
and other property or rights covered by the security interest hereby granted, as the Lender may
reasonably require to perfect their security interest hereunder.
6.10 Debtor represents and warrants that they are the true and lawful exclusive owners of the
Collateral, free and clear of any liens, encumbrances and claims other than those listed on
Schedule 6.1.
6.11 Debtor hereby agrees not to divest itself of any right under the Collateral except as
permitted herein absent prior written approval of the Lender, except to a subsidiary organized and
located in the United States on prior notice to Lender provided the Collateral remains subject to
the security interest herein described.
6.12 Debtor shall cause each Subsidiary of Debtor in existence on the date hereof and each
Future Subsidiary to execute and deliver to Lender promptly and in any event within ten (10) days
after the formation, acquisition or change in status thereof (A) if requested by Lender, a security
and pledge agreement substantially in the form of this Agreement together with (x) certificates
evidencing all of the capital stock of each Subsidiary of and any entity owned by such Subsidiary,
(y) undated stock powers executed in blank with signatures guaranteed, and (z) such opinion of
counsel and such approving certificate of such Subsidiary as Lender may reasonably request in
respect of complying with any legend on any such certificate or any other matter relating to such
shares and (B) such other agreements, instruments, approvals, legal opinions or other documents
reasonably requested by Lender in order to create, perfect, establish the first priority of or
otherwise protect any lien purported to be covered by any such pledge and security agreement or
otherwise to effect the intent that all property and assets of such
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Subsidiary shall become Collateral for the Obligations. For purposes of this Agreement, “Subsidiary” means, with
respect to any entity at any date, any corporation, limited or general partnership, limited
liability company, trust, estate, association, joint venture or other business entity, of which
more than 30% of (A) the outstanding capital stock having (in the absence of contingencies)
ordinary voting power to elect a majority of the board of directors or other managing body of such
entity, (B) in the case of a partnership or limited liability company, the interest in the capital
or profits of such partnership or limited liability company or (C) in the case of a trust, estate,
association, joint venture or other entity, the beneficial interest in such trust, estate,
association or other entity is, at the time of determination, owned or controlled directly or
indirectly through one or more intermediaries, by such entity. Schedule 6.12 annexed
hereto contains a list of all Subsidiaries of the Debtor as of the date of this Agreement.
6.13 Debtor will notify Lender within ten days of the occurrence of any change of Debtor’s
name, domicile, address or jurisdiction of incorporation. The timely giving of this notice is a
material obligation of Debtor.
7. Power of Attorney.
At any time an Event of Default has occurred, and only after the applicable cure period as set
forth in this Agreement and is continuing, Debtor hereby irrevocably constitutes and appoints
Lender as the true and lawful attorney of Debtor, with full power of substitution, in the place and
stead of Debtor and in the name of Debtor or otherwise, at any time or times, in the discretion of
the Lender, to take any action and to execute any instrument or document which the Lender may deem
necessary or advisable to accomplish the purposes of this Agreement. This power of attorney is
coupled with an interest and is irrevocable until the Obligations are satisfied.
8. Performance By The Lender.
If Debtor fails to perform any material covenant, agreement, duty or obligation of Debtor
under this Agreement, Lender may, after any applicable cure period, at any time or times in its
discretion, take action to effect performance of such obligation. All reasonable expenses of the
Lender incurred in connection with the foregoing authorization shall be payable by Debtor as
provided in Paragraph 12.1 hereof. No discretionary right, remedy or power granted to the
Lender under any part of this Agreement shall be deemed to impose any obligation whatsoever on the
Lender with respect thereto, such rights, remedies and powers being solely for the protection of
the Lender.
9. Event of Default.
An event of default (“Event of Default”) shall be deemed to have occurred hereunder upon the
occurrence of any event of default as defined and described in this Agreement, in the Note and any
other agreement to which Debtor and Lender are parties. Upon and after any Event of Default,
after the applicable cure period, if any, any or all of the Obligations shall become immediately
due and payable at the option of the Lender, and the Lender may dispose of Collateral as provided
below. A default by Debtor of any of its material obligations pursuant to this Agreement and any
of the Transaction Documents shall be an Event of Default hereunder and an “Event of Default” as
defined in the Notes, and Subscription Agreement.
10. Disposition of Collateral.
Upon and after any Event of Default which is then continuing,
10.1 The Lender may exercise their rights with respect to each and every component of the
Collateral, without regard to the existence of any other security or source of payment for, in
order to satisfy
the Obligations. In addition to other rights and remedies provided for herein or otherwise
available to it, the Lender shall have all of the rights and remedies of a lender on default under
the Uniform Commercial Code then in effect in the State of New York.
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10.2 If any notice to Debtor of the sale or other disposition of Collateral is required by
then applicable law, five (5) business days prior written notice (which Debtor agrees is reasonable
notice within the meaning of Section 9.612(a) of the Uniform Commercial Code) shall be given to
Debtor of the time and place of any sale of Collateral which Debtor hereby agrees may be by private
sale. The rights granted in this Section are in addition to any and all rights available to Lender
under the Uniform Commercial Code.
10.3 The Lender are authorized, at any such sale, if the Lender deem it advisable to do so, in
order to comply with any applicable securities laws, to restrict the prospective bidders or
purchasers to persons who will represent and agree, among other things, that they are purchasing
the Collateral for their own account for investment, and not with a view to the distribution or
resale thereof, or otherwise to restrict such sale in such other manner as the Lender deem
advisable to ensure such compliance. Sales made subject to such restrictions shall be deemed to
have been made in a commercially reasonable manner.
10.4 All proceeds received by the Lender in respect of any sale, collection or other
enforcement or disposition of Collateral, shall be applied (after deduction of any amounts payable
to the Lender pursuant to Paragraph 12.1 hereof) against the Obligations. Upon payment in
full of all Obligations, Debtor shall be entitled to the return of all Collateral, including cash,
which has not been used or applied toward the payment of Obligations or used or applied to any and
all costs or expenses of the Lender incurred in connection with the liquidation of the Collateral
(unless another person is legally entitled thereto). Any assignment of Collateral by the Lender to
Debtor shall be without representation or warranty of any nature whatsoever and wholly without
recourse. To the extent allowed by law, Lender may purchase the Collateral and pay for such
purchase by offsetting the purchase price with sums owed to Lender by Debtor arising under the
Obligations or any other source.
10.5 Rights of Lender to Appoint Receiver. Without limiting, and in addition to, any
other rights, options and remedies Lender have under the Note, the UCC, at law or in equity, or
otherwise, upon the occurrence and continuation of an Event of Default, Lender shall have the right
to apply for and have a receiver appointed by a court of competent jurisdiction. Debtor expressly
agrees that such a receiver will be able to manage, protect and preserve the Collateral and
continue the operation of the business of Debtor to the extent necessary to collect all revenues
and profits thereof and to apply the same to the payment of all expenses and other charges of such
receivership, including the compensation of the receiver, until a sale or other disposition of such
Collateral shall be finally made and consummated. Debtor waives any right to require a bond to be
posted by or on behalf of any such receiver.
11. Waiver of Automatic Stay. Debtor acknowledges and agrees that should a proceeding
under any bankruptcy or insolvency law be commenced by or against Debtor, or if any of the
Collateral should become the subject of any bankruptcy or insolvency proceeding, then the Lender
should be entitled to, among other relief to which the Lender may be entitled under the Note, and
any other agreement to which the Debtor and Lender are parties (collectively “Loans Documents”)
and/or applicable law, an order from the court granting immediate relief from the automatic stay
pursuant to 11 U.S.C. Section 362 to permit the Lender to exercise all of their rights and remedies
pursuant to the Loans Documents and/or applicable law. DEBTOR EXPRESSLY WAIVES THE BENEFIT OF THE
AUTOMATIC STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, DEBTOR EXPRESSLY ACKNOWLEDGES AND
AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER SECTION OF THE BANKRUPTCY CODE OR OTHER
STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION, 11 U.S.C. SECTION 105) SHALL STAY, INTERDICT,
CONDITION, REDUCE OR INHIBIT IN ANY WAY THE ABILITY
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OF THE LENDER TO ENFORCE ANY OF ITS RIGHTS AND
REMEDIES UNDER THE LOANS DOCUMENTS AND/OR APPLICABLE LAW. Debtor hereby consents to any motion for relief from stay which
may be filed by the Lender in any bankruptcy or insolvency proceeding initiated by or against
Debtor, and further agrees not to file any opposition to any motion for relief from stay filed by
the Lender. Debtor represents, acknowledges and agrees that this provision is a specific and
material aspect of this Agreement, and that the Lender would not agree to the terms of this
Agreement if this waiver were not a part of this Agreement. Debtor further represents,
acknowledges and agrees that this waiver is knowingly, intelligently and voluntarily made, that
neither the Lender nor any person acting on behalf of the Lender has made any representations to
induce this waiver, that Debtor has been represented (or has had the opportunity to be represented)
in the signing of this Agreement and in the making of this waiver by independent legal counsel
selected by Debtor and that Debtor has had the opportunity to discuss this waiver with counsel.
Debtor further agrees that any bankruptcy or insolvency proceeding initiated by Debtor will only be
brought in the Federal Court within the Southern District of New York.
12. Miscellaneous.
12.1 Expenses. Debtor shall pay to the Lender, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys’ fees, legal expenses and brokers’
fees, which the Lender may incur in connection with (a) sale, collection or other enforcement or
disposition of Collateral; (b) exercise or enforcement of any the rights, remedies or powers of the
Lender hereunder or with respect to any or all of the Obligations upon breach or threatened breach;
or (c) failure by Debtor to perform and observe any agreements of Debtor contained herein which are
performed by Lender.
12.2 Waivers, Amendment and Remedies. No course of dealing by the Lender and no
failure by the Lender to exercise, or delay by the Lender in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other right, remedy or power
of the Lender. No amendment, modification or waiver of any provision of this Agreement and no
consent to any departure by Debtor therefrom shall, in any event, be effective unless contained in
a writing signed by the Lender, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The rights, remedies and powers of
the Lender, not only hereunder, but also under any instruments and agreements evidencing or
securing the Obligations and under applicable law are cumulative, and may be exercised by the
Lender from time to time in such order as the Lender may elect.
12.3 Notices. All notices or other communications given or made hereunder shall be in
writing and shall be personally delivered or deemed delivered the first business day after being
faxed (provided that a copy is delivered by first class mail) to the party to receive the same at
its address set forth below or to such other address as either party shall hereafter give to the
other by notice duly made under this Section:
| To Debtor: | 000 Xxxx 00xx Xxxxxx, Xxxxx 0X | |||
| Xxx Xxxx, Xxx Xxxx 00000 | ||||
| Attn: | ||||
| Fax: | ||||
| To Lender: | 0000X 00xx Xxxxxx Xxxxx | |||
| Xx. Xxxxxxxxxx, Xxxxxxx 00000 | ||||
| Attn: Xxxxxxx X. Xxxxx | ||||
| Fax: | ||||
| With a copy by fax only to: | Xxxxxx Xxxxxx | |||
| Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP | ||||
| 00 Xxxxxxxx, 00xx Xxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| Fax: (000) 000-0000 |
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Any party may change its address by written notice in accordance with this paragraph.
12.4 Term; Binding Effect. This Agreement shall (a) remain in full force and effect
until payment and satisfaction in full of all of the Obligations; (b) be binding upon Debtor, and
its successors and permitted assigns; and (c) inure to the benefit of the Lender and its successors
and assigns.
12.5 Captions. The captions of Paragraphs, Articles and Sections in this Agreement
have been included for convenience of reference only, and shall not define or limit the provisions
of this agreement and have no legal or other significance whatsoever.
12.6 Governing Law; Venue; Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to conflicts of laws
principles that would result in the application of the substantive laws of another jurisdiction,
except to the extent that the perfection of the security interest granted hereby in respect of any
item of Collateral may be governed by the law of another jurisdiction. Any legal action or
proceeding against Debtor with respect to this Agreement must be brought only in the courts in the
State of New York or of the United States for the Southern District of New York, and, by execution
and delivery of this Agreement, Debtor hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid courts. Debtor hereby
irrevocably waives any objection which they may now or hereafter have to the laying of venue of any
of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought
in the aforesaid courts and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum. If any provision of this Agreement, or the application thereof to any person
or circumstance, is held invalid, such invalidity shall not affect any other provisions which can
be given effect without the invalid provision or application, and to this end the provisions hereof
shall be severable and the remaining, valid provisions shall remain of full force and effect.
12.7 Entire Agreement. This Agreement contains the entire agreement of the parties
and supersedes all other agreements and understandings, oral or written, with respect to the
matters contained herein.
12.8 Counterparts/Execution. This Agreement may be executed in any number of
counterparts and by the different signatories hereto on separate counterparts, each of which, when
so executed, shall be deemed an original, but all such counterparts shall constitute but one and
the same instrument. This Agreement may be executed by facsimile signature and delivered by
electronic transmission.
13. Termination; Release. When the Obligations have been indefeasibly paid and performed
in full or all outstanding Notes have been converted to common stock pursuant to the terms of the
Notes and the Subscription Agreements, this Agreement shall be terminated, and the Lender, at the
request and sole expense of the Debtor, will execute and deliver to the Debtor the proper
instruments (including UCC termination statements) acknowledging the termination of the Security
Agreement, and duly assign, transfer and deliver to the Debtor, without recourse, representation or
warranty of any kind whatsoever, such of the Collateral, as may be in the possession of the
Lender.
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14. Lender Powers.
14.1 Lender Powers. The powers conferred on the Lender hereunder are solely to
protect Lender’ interest in the Collateral and shall not impose any duty on it to exercise any such
powers.
14.2 Reasonable Care. The Lender are required to exercise reasonable care in the
custody and preservation of any Collateral in its possession; provided, however, that the Lender
shall be deemed to have exercised reasonable care in the custody and preservation of any of the
Collateral if it takes such action for that purposes as any owner thereof reasonably requests in
writing at times other than upon the occurrence and during the continuance of any Event of Default,
but failure of the Lender to comply with any such request at any time shall not in itself be deemed
a failure to exercise reasonable care.
14.3 Approval. The rights of the Lender hereunder, except as otherwise set forth
herein shall be exercised upon the approval of Lender at the time such approval is sought or given.
Possession of any tangible or physical Collateral shall be held by Lender pursuant to this
Agreement and on behalf of Lender. The Collateral, to the extent it may be transferred to Lender,
may be held in the name of Lender or in “street name”.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this Security Agreement, as of
the date first written above.
| “DEBTOR” | ||||
| ROOTZOO, INC. a Delaware corporation |
||||
By:
|
/s/ Xxxxx Xxxxxxx | |||
| Name: Xxxxx Xxxxxxx Title: President |
||||
| “LENDER” | ||
ECLIPS ENERGY TECHNOLOGIES, INC. |
||
/s/ Xxxxxxx X. Xxxxx
|
||
Title: Chief Executive Officer |
||
This Security Agreement may be signed by facsimile signature and
delivered by confirmed facsimile transmission.
delivered by confirmed facsimile transmission.
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