NORTHERN MERCHANT SERVICES , INC.
SECURITY AGREEMENT
August 31, 2004
To: Laurus Master Fund, Ltd.
c/o M&C Corporate Services Limited
P.O. Box 1234 XX
Xxxxxx House
South Church Street
Grand Cayman, Cayman Islands
Gentlemen:
1. To secure the payment of all Obligations (as hereafter defined), we
hereby grant to you a continuing security interest in all of the following
property now owned or at any time hereafter acquired by us, or in which we now
have or at any time in the future may acquire any right, title or interest (the
"Collateral"): all cash, accounts, accounts receivable, deposit accounts
(including, without limitation, (x) the Restricted Account (the "Restricted
Account") maintained at North Fork Bank (Account Name: _________, Account
Number: __________) referred to in the Restricted Account Agreement), inventory,
equipment, goods, documents, instruments (including, without limitation,
promissory notes), contract rights, general intangibles (including, without
limitation, payment intangibles and an absolute right to license on terms no
less favorable than those currently in effect among our affiliates, but not own
intellectual property), chattel paper, supporting obligations, investment
property, letter-of-credit rights, trademarks and tradestyles in which we now
have or hereafter may acquire any right, title or interest, all proceeds and
products thereof (including, without limitation, proceeds of insurance) and all
additions, accessions and substitutions thereto or therefore. In the event we
wish to finance the acquisition of any hereafter acquired equipment and have
obtained a commitment from a financing source to finance such equipment from an
unrelated third party, you agree to release your security interest on such
hereafter acquired equipment so financed by such third party financing source.
2. The term "Obligations" as used herein shall mean and include all debts,
liabilities and obligations owing by us to you hereunder and under whether
arising under, out of, or in connection with that certain Securities Purchase
Agreement dated as of the date hereof by and between the undersigned and Laurus
Master Fund, Ltd. ("Laurus") (the "Securities Purchase Agreement"), that certain
Secured Convertible Term Note dated as of the date hereof made by in favor of
Laurus (the "Term Note") the Warrant dated as of the date hereof made by the
undersigned in favor of Laurus in connection with the Term Note (the "Term Note
Warrant") that certain Registration Rights Agreement dated as of the date hereof
by and between the undersigned and Laurus in connection with the Term Note (the
"Term Note Registration Rights Agreement"), that certain Security Agreement
dated as of the date hereof by and between the undersigned and Laurus (the
"Security Agreement"), and any and all and all other documents entered into by
Laurus, Pipeline, and/or a subsidiary of Pipeline in connection with the Term
Note (the "Other Documents") (the Securities Purchase Agreement, the Term Note,
the Term Note Warrant and the Term Note Registration Rights Agreement, the
Security Agreement, and the Other Documents, as each may be amended, modified,
restated or supplemented from time to time, are collectively referred to herein
as the "Documents").
3. We hereby represent, warrant and covenant to you that:
(a) we are a company validly existing, in good standing and formed under
the laws of the State of Delaware and we will provide you thirty (30)
days' prior written notice of any change in our state of formation;
(b) our legal name is PIPELINE DATA INC., as set forth in our Certificate
of Incorporation as amended through the date hereof;
(c) the legal name of each of our subsidiaries are:
(i) XxxxxxXxx.xxx, Inc.; and
(ii) Northern Merchant Services, Inc. Other than the entities listed
above, we have no other subsidiaries.
(d) we are the holders of the majority voting shares of the issued and
outstanding shares of common stock of each of our subsidiaries listed
above;
(e) we are the lawful owner of the Collateral and have the sole right to
grant a security interest therein and will defend the Collateral
against all claims and demands of all persons and entities;
(f) we will keep the Collateral free and clear of all attachments, levies,
taxes, liens, security interests and encumbrances of every kind and
nature ("Encumbrances"), except (i) any Encumbrance subordinate to the
Obligations or (ii) to the extent said Encumbrance does not secure
indebtedness in excess of $100,000 and such Encumbrance is removed or
otherwise released within twenty (20) days of the creation thereof;
(g) we will at our own cost and expense keep the Collateral in good state
of repair (ordinary wear and tear excepted) and will not waste or
destroy the same or any part thereof other than ordinary course
discarding of items no longer used or useful in our business;
(h) we will not without your prior written consent, sell, exchange, lease
or otherwise dispose of the Collateral, whether by sale, lease or
otherwise, except for the sale of inventory in the ordinary course of
business and for the disposition or transfer in the ordinary course of
business during any fiscal year of obsolete and worn-out equipment or
equipment no longer necessary for our ongoing needs, having an
aggregate fair market value of not more than $25,000 and only to the
extent that:
(i) the proceeds of any such disposition are used to acquire
replacement Collateral which is subject to your first priority
security interest (subject to the $100,000 allowance set forth in
paragraph (f) of this Section 3) or are used to repay Obligations
or to pay general corporate expenses; or
(ii) following the occurrence of an Event of Default which continues
to exist the proceeds of which are remitted to you to be held as
cash collateral for the Obligations;
(i) we will insure the Collateral in your name against loss or damage by
fire, theft, burglary, pilferage, loss in transit and such other
hazards as you shall specify in amounts and under policies by insurers
acceptable to you and all premiums thereon shall be paid by us and the
policies delivered to you. If we fail to do so, you may procure such
insurance and the cost thereof shall constitute Obligations;
(j) we will at all reasonable times allow you or your representatives free
access to and the right of inspection of the Collateral;
(k) we hereby indemnify and save you harmless from all loss, costs,
damage, liability and/or expense, including reasonable attorneys'
fees, that you may sustain or incur to enforce payment, performance or
fulfillment of any of the Obligations and/or in the enforcement of
this Agreement or in the prosecution or defense of any action or
proceeding either against you or us concerning any matter growing out
of or in connection with this Agreement, and/or any of the Obligations
and/or any of the Collateral except to the extent caused by your own
gross negligence or willful misconduct.
4. We shall be in default under this Agreement upon the happening of any of
the following events or conditions, each such event or condition an "Event of
Default:"
(a) we shall fail to pay when due or punctually perform any of the
Obligations and such failure shall continue for a period of three (3)
days following any failure to make payment, or for a period of thirty
(30) days following default for any other such failure;
(b) any covenant, warranty, representation or statement made or furnished
to you by us or on our behalf was false in any material respect when
made or furnished;
(c) the loss, theft, substantial damage, destruction, sale or encumbrance
to or of any of the Collateral or the making of any levy, seizure or
attachment thereof or thereon except to the extent:
(i) such loss is covered by insurance proceeds which are used to
replace the item or repay us; or
(ii) said levy, seizure or attachment does not secure indebtedness in
excess of $100,000 and such levy, seizure or attachment has not
been removed or otherwise released within twenty (20) days of the
creation or the assertion thereof;
(d) we shall become insolvent, cease operations, dissolve, terminate our
business existence, make an assignment for the benefit of creditors,
suffer the appointment of a receiver, trustee, liquidator or custodian
of all or any part of our property;
(e) any proceedings under any bankruptcy or insolvency law shall be
commenced by or against us and if commenced against us shall not be
dismissed within ninety (90) days;
(f) we shall repudiate, purport to revoke or fail to perform any of our
obligations under the Note (after passage of applicable cure period,
if any); or
(g) an Event of Default shall have occurred under and as defined in the
Note.
5. Upon the occurrence of any Event of Default and at any time thereafter,
you may declare all Obligations immediately due and payable and you shall have
the remedies of a secured party provided in the Uniform Commercial Code as in
effect in the State of New York, this Agreement and other applicable law. Upon
the occurrence of any Event of Default and at any time thereafter, you will have
the right to take possession of the Collateral and to maintain such possession
on our premises or to remove the Collateral or any part thereof to such other
premises as you may desire. Upon your request, we shall assemble the Collateral
and make it available to you at a place designated by you. If any notification
of intended disposition of any Collateral is required by law, such notification,
if mailed, shall be deemed properly and reasonably given if mailed at least ten
(10) days before such disposition, postage prepaid, addressed to us either at
our address shown herein or at any address appearing on your records for us. All
notices shall be sent though a nationally reputable overnight courier to arrive
the next day. Any proceeds of any disposition of any of the Collateral shall be
applied by you to the payment of all expenses in connection with the sale of the
Collateral, including reasonable attorneys' fees and other legal expenses and
disbursements and the reasonable expense of retaking, holding, preparing for
sale, selling, and the like, and any balance of such proceeds may be applied by
you toward the payment of the Obligations in such order of application as you
may elect, and we shall be liable for any deficiency. For the avoidance of
doubt, following the occurrence and during the continuance of an Event of
Default, Laurus shall have the immediate right to withdraw any and all monies
contained in the Restricted Account or any other deposit accounts in the name of
the Assignor and controlled by Laurus and apply same to the repayment of the
Obligations (in such order of application as Laurus may elect).
6. If we default in the performance or fulfillment of any of the terms,
conditions, promises, covenants, provisions or warranties on our part to be
performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, immediately or at any time thereafter and without notice to us, perform
or fulfill the same or cause the performance or fulfillment of the same for our
account and at our sole cost and expense, and the cost and expense thereof
(including reasonable attorneys' fees) shall be added to the Obligations and
shall be payable on demand with interest thereon at the highest rate permitted
by law or, at your option, debited by you from the Collateral (including,
without limitation, the Restricted Account).
7. We appoint you, any of your officers, employees or any other person or
entity whom you may designate as our attorney, with power to execute such
documents in our behalf and to supply any omitted information and correct patent
errors in any documents executed by us or on our behalf; to file financing
statements against us covering the Collateral; to sign our name on public
records; and to do all other things you deem necessary to carry out this
Agreement. We hereby ratify and approve all acts of the attorney and neither you
nor the attorney will be liable for any acts of commission or omission, nor for
any error of judgment or mistake of fact or law other than gross negligence or
willful misconduct. This power being coupled with an interest, is irrevocable so
long as any Obligations remains unpaid.
8. No delay or failure on your part in exercising any right, privilege or
option hereunder shall operate as a waiver of such or of any other right,
privilege, remedy or option, and no waiver whatever shall be valid unless in
writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. Your books and records containing
entries with respect to the Obligations shall be admissible in evidence in any
action or proceeding, shall be binding upon us for the purpose of establishing
the items therein set forth and shall constitute prima facie proof thereof. You
shall have the right to enforce any one or more of the remedies available to
you, successively, alternately or concurrently. We agree to join with you in
executing financing statements or other instruments to the extent required by
the Uniform Commercial Code in form satisfactory to you and in executing such
other documents or instruments as may be required or deemed necessary by you for
purposes of affecting or continuing your security interest in the Collateral.
9. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York and cannot be terminated orally. All of the
rights, remedies, options, privileges and elections given to you hereunder shall
inure to the benefit of your successors and assigns. The term "you" as herein
used shall include your company, any parent of your company, any of your
subsidiaries and any co-subsidiaries of your parent, whether now existing or
hereafter created or acquired, and all of the terms, conditions, promises,
covenants, provisions and warranties of this Agreement shall inure to the
benefit of and shall bind the representatives, successors and assigns of each of
us and them. You and we hereby (a) waive any and all right to trial by jury in
litigation relating to this Agreement and the transactions contemplated hereby
and we agree not to assert any counterclaim in such litigation, (b) submit to
the nonexclusive jurisdiction of any New York State court sitting in the borough
of Manhattan, the city of New York and (c) waive any objection you or we may
have as to the bringing or maintaining of such action with any such court.
10. All notices from you to us shall be sufficiently given if mailed or
delivered to us at our address set forth below.
Very truly yours,
NORTHERN MERCHANT SERVICES , INC.
By:
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Name:
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ACKNOWLEDGED: Title:
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LAURUS MASTER FUND, LTD. Address: 00 Xxxx Xxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxx Xxxx 00000
By: _________________________ Attn: Xxxxxx Xxxxxxxxx,
Name: Chief Financial Officer
Title: Facsimile: (000) 000-0000
With copy to: Xxxxxx Xxxxxxx, Esq.
000 Xxxxxx Xxxx Xxxx
Xxxxxx , Xxxxxxx 00000
Facsimile: (000) 000-0000
