Fifth Amended and Restated Security Agreement
Exhibit 10.2
Fifth Amended and Restated Security Agreement
This
Fifth Amended and Restated Security
Agreement (this “Agreement”), dated as of October
15, 2020, is entered into between Xxxx Xxxxxxx, an individual
(“Grantee”), and
MusclePharm Corporation, a
Nevada corporation, as grantor (“Grantor”).
Background
WHEREAS,
Grantor and Grantee previously entered into (i) a secured revolving
promissory note dated as of October 4, 2019 (the
“Revolver
Note”), (ii) a collateral receipt and security
agreement dated as of December 27, 2019 (the “Bond”) and (iii) a convertible
secured promissory note dated as of November 8, 2017 (the
“Convertible
Note”, together with the Revolver Note and the Bond,
the “Prior
Notes”);
WHEREAS,
Grantor and Grantee previously agreed to amend and restate the
Prior Notes to make certain amendments as set forth in that certain
Amended and Restated Convertible Secured Promissory Note, issued on
August 21, 2020 by Grantor to Grantee (the “August Note”);
WHEREAS,
Grantor and Grantee intend to enter into a secured revolving
promissory note dated as of the date hereof (the “New Revolver Note”);
and
WHEREAS,
as a condition precedent to entering into the New Revolver Note,
the parties now desire to amend and restate the Fourth Amended and
Restated Security Agreement to provide Grantee with a first
priority lien in respect of obligations due under the New Revolver
Note.
Agreement
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Grantor and Grantee
hereby amend and restate the terms of, and supersede in their
entirety, the Fourth Amended and Restated Security Agreement, and
Grantor hereby agrees, for the benefit of Grantee, as
follows:
Certain
Definitions
Section
1.01. Definitions.
The
terms “Account,”
“Equipment,”
“Inventory,” and
“Proceeds” shall
have the meanings ascribed to such terms in the UCC.
As used
herein:
“Collateral” shall have the meaning
set forth in Section 2.01.
“Dispute” means any pending,
decided or settled opposition, injunction, action, claim,
counterclaim, lawsuit, proceeding, hearing, investigation,
complaint, arbitration, mediation, demand, decree or formal
enquiry, or any other dispute, disagreement, or claim of any
kind.
“Excluded Property” means (i) any
permit, license, contract or lease to the extent that (and in each
case only for so long as) such grant of a security interest therein
or assignment thereof is prohibited by any applicable laws or is
prohibited by, or constitutes a breach or default under or results
in the termination of or gives rise to a right on the part of the
parties thereto other than Grantor to terminate, such permit,
license, contract or lease, except to the extent that such laws or
the term in such permit, license, contract or lease providing for
such prohibition, breach, default or right of termination are
ineffective or rendered unenforceable under applicable laws
(including the UCC), and (ii) any property owned by Grantor on the
date hereof or hereafter acquired that is subject to a lien
permitted to be incurred pursuant to clause (e) of the definition
of Permitted Liens contained in the August Note or the New Revolver
Note.
“Governmental Authority” means the
government of the United States or any other country, any state or
other political subdivision thereof, any supranational or
multinational authority, and any entity, body or authority
exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any of the
foregoing.
“Intellectual Property” means (a)
any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship and
derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held (collectively, the
“Copyrights”);
(b) any and all trade secrets, and any and all intellectual
property rights in computer software and computer software products
now or hereafter existing, created, acquired or held; (c) any and
all design rights that may be available, now or hereafter existing,
created, acquired or held; (d) all patents, patent applications and
like protections including, without limitation, improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same (collectively, the
“Patents”); (e)
any trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like
protections, and the entire goodwill connected with and symbolized
by such trademarks, other than any intent-to-use United States
trademark applications for which an amendment to allege use or
statement of use has not been filed under 15 U.S.C.
§ 1051I or 15 U.S.C. § 1051(d), respectively,
or if filed, has not been deemed in conformance with 15 U.S.C.
§ 1051(a) or examined and accepted, respectively, by the
United States Patent and Trademark Office, provided that, upon such filing
and acceptance, such intent-to-use applications shall be included
in the definition of Collateral (collectively, the
“Trademarks”);
(f) all mask work registrations or applications therefor or similar
rights, now owned or hereafter acquired (collectively, the
“Mask Works”);
(g) any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with the
right, but not the obligation, to xxx for and collect such damages
for said use or infringement of the intellectual property rights
identified above; (h) all licenses or other rights to use any of
the Copyrights, Patents, Trademarks, or Mask Works and all license
fees and royalties arising from such use to the extent permitted by
such license or rights; (i) all amendments, extensions, renewals
and extensions of any of the Copyrights, Trademarks, Patents, or
Mask Works; and (j) all proceeds and products of the foregoing,
including without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
“Secured
Obligations” means all obligations of Grantor under or
in respect of the August Note, the New Revolver Note and this
Agreement.
“UCC” means the Uniform Commercial
Code as in effect on the date hereof in the State of New York, as
amended from time to time, and any successor statute; provided that
if by reason of mandatory provision of law, the perfection or the
effect of perfection or non-perfection of the security interest in
the Collateral is governed by the Uniform Commercial Code of
another jurisdiction, “UCC” means the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provision hereof relating to such perfection or
effect of perfection or non-perfection.
Section
1.02. Note Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Agreement, including its preamble and recitals, have the
meanings provided in the August Note and/or the New Revolver Note,
as applicable.
Section
1.03. UCC Definitions. Unless otherwise
defined herein or the context otherwise requires, terms for which
meanings are provided in the UCC are used in this Agreement,
including its preamble and recitals, with such meanings; provided,
however, that the term “instrument” shall be such term
as defined in Article 9 of the UCC rather than Article 3 of the
UCC.
Section
1.04. Interpretation; Headings. Each term used
in any exhibit to this Agreement and defined in this Agreement but
not defined therein shall have the meaning set forth in this
Agreement. Unless the context otherwise requires,
(i) “including” means “including, without
limitation” and (ii) words in the singular include the
plural and words in the plural include the singular. A reference to
any party to this Agreement, the August Note, the New Revolver Note
or any other agreement or document shall include such party’s
successors and permitted assigns. A reference to any agreement or
order shall include any amendment of such agreement or order from
time to time in accordance with the terms hereof and thereof. A
reference to any legislation, to any provision of any legislation
or to any regulation issued thereunder shall include any amendment
thereto, any modification or re-enactment thereof, any legislative
provision or regulation substituted therefor and all regulations
and statutory instruments issued thereunder or pursuant thereto.
The headings contained in this Agreement are for convenience and
reference only and do not form a part of this Agreement. Section,
article and exhibit references in this Agreement refer to sections
or articles of, or exhibits to, this Agreement unless otherwise
specified.
ARTICLE II
Security
Interest
Section
2.01. Grant
of Security Interest.
(a) As collateral
security for the Secured Obligations, Grantor hereby grants to
Grantee a continuing Lien on and a continuing first priority
security interest in and lien and mortgage on all of
Grantor’s and Grantor’s subsidiaries’ right,
title, and interest in each and all of its assets and properties,
wherever the same may be now or hereafter located, whether now
owned by or owing to, or hereafter existing or hereafter acquired
by or arising in favor of, Grantor or its subsidiaries (including
under any trade name or derivations thereof), whether tangible or
intangible, and all products and Proceeds thereof (together, the
“Collateral”),
including all of the following and all products and Proceeds
thereof:
(i) all Intellectual
Property (the “Intellectual
Property Collateral”);
(ii) all
goods and Equipment, including all laboratory equipment, computer
equipment, office equipment, machinery, fixtures, vehicles
(including motor vehicles and trailers), and any interest in any of
the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to any of
the foregoing, wherever located;
(iii) all
Inventory, including all merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and
finished products including such inventory as is temporarily out of
Grantor’s custody or possession or in transit and including
any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any
of the foregoing and any documents of title representing any of the
above, and Grantor’s books relating to any of the
foregoing;
(iv) all
Accounts (including healthcare receivables), all contract rights or
rights to payment of money, leases, license agreements, franchise
agreements, commercial tort claims, documents, instruments
(including any promissory notes), chattel paper (whether tangible
or electronic), cash and cash equivalents, insurance policy claims
and proceeds, all general intangibles (including payment
intangibles), all letters of credit, certificates of deposit,
letters of credit rights (whether or not the letter of credit is
evidenced by a writing), securities, material intercompany notes,
and all other investment property, supporting obligations, and
financial assets, in each case, unless otherwise defined in this
Agreement, as defined in the UCC;
(v) all books, records,
databases, customer lists, credit files, computer files, programs,
printouts and other computer materials and records, and all other
information relating to the foregoing and any general intangibles
at any time evidencing or relating to any of the foregoing;
and
(vi) any
and all claims, rights and interests in any of the above and all
substitutions for, additions, attachments, accessories, accessions
and improvements to and replacements, products, proceeds and
insurance proceeds of any or all of the foregoing.
(b) With respect to the
Intellectual Property Collateral, Grantor hereby grants to Grantee
all of Grantor's and Grantor’s subsidiaries’ right,
title and interest in, to and under the Intellectual Property
Collateral, including, without limitation, the
following:
(i) Any and all claims
for damages by way of past, present and future infringements of any
of the rights in the Intellectual Property Collateral, with the
right, but not the obligation, to xxx for and collect such damages
for said use or infringement of the rights in the Intellectual
Property Collateral;
(ii) All
licenses or other rights to use any of the Intellectual Property
Collateral and all license fees and royalties arising from such use
to the extent permitted by such license or rights;
(iii) All
amendments, extensions, renewals and extensions of any of the
Intellectual Property Collateral; and
(iv) All
proceeds and products of the Intellectual Property Collateral,
including without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
Notwithstanding the
foregoing, in no event shall the Collateral include any Excluded
Property; provided that, notwithstanding the foregoing, a security
interest shall be, and is hereby, granted in (A) any property
immediately upon such property ceasing to be Excluded Property and
(B) any and all proceeds, products, substitutions and replacements
of Excluded Property to the extent such proceeds, products,
substitutions and replacements do not themselves constitute
Excluded Property.
(c) Grantor shall, and
shall cause its subsidiaries to, take such commercially reasonable
steps as Grantee reasonably requests in writing to obtain the
consent of, or waiver by, any person whose consent or waiver is
necessary, by contract or law, for the grant of the security
interest in the Collateral or any portion thereof, including any
license or other contract, whether now existing or entered into in
the future.
Section
2.02. Continuing
Security Interest.
(a) This Agreement
creates a continuing security interest in the Collateral and shall:
(i) remain in full force and effect until the date on which the
Secured Obligations are paid and performed in full; (ii) be binding
upon Grantor and its successors, transferees and assigns; and (iii)
inure, together with the rights and remedies of Grantee, to the
benefit of Grantee and its successors and assigns.
(b) Grantee shall have
all rights to perfect, continue, maintain, and protect
Grantee’s interest and rights under the August Note and the
New Revolver Note.
(c) Upon the date on
which the Secured Obligations are paid and performed in full, the
security interest granted herein shall automatically terminate and
all rights to the Collateral, in each case to the extent the
Collateral has not been previously disposed of or dealt with in
accordance with this Agreement or otherwise, shall revert to
Grantor. Upon any such termination, and from time to time following
such termination, Grantee will, at Grantor’s sole expense,
promptly execute and deliver to Grantor such instruments and
documents necessary and as Grantor shall reasonably request to
evidence such termination.
Section 2.03. Grantor
Remains Liable. Anything herein to the contrary
notwithstanding: (a) Grantor shall remain liable under the
contracts included in the Collateral to the extent set forth
therein and as to all other Collateral, and shall perform all of
its duties and obligations under such contracts and other
Collateral to the same extent as if this Agreement had not been
executed; (b) the exercise by Grantee of any of its rights and
remedies hereunder shall not operate to release Grantor from any of
its duties or obligations under any contracts included in the
Collateral and as to any other Collateral; and (c) Grantee shall
not have any obligation or liability under any such contracts
included in the Collateral or as to any other Collateral by reason
of this Agreement, and Grantee shall not be obligated to perform or
fulfill any of the obligations or duties of Grantor thereunder or
to take any action to collect or to (i) make any inquiry as to
the nature or sufficiency of any payment Grantor may be entitled to
receive thereunder, (ii) present or file and claim or
(iii) enforce any claim for payment assigned
hereunder.
Section
2.04. Authorization
to File Financing Statements.
(a) Grantor hereby
irrevocably appoints Grantee its attorney-in-fact and authorizes
Grantee at any time and from time to time, without notice to
Grantor, to file in any UCC jurisdiction or other appropriate
location any financing statements or other appropriate documents
and any amendments thereto and continuations thereof that: (i)
describe or indicate the Collateral (x) as all assets of
Grantor or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope
of Article 9 of the UCC or such jurisdiction, or (y) with
greater detail; and (ii) contain any other information required by
Article 9 of the UCC or other applicable law or as otherwise
appropriate for the sufficiency or filing office acceptance of any
financing statement or other document or amendment or continuation,
including, as applicable, whether Grantor is an organization, the
type of organization and any organization identification number
issued to Grantor.
(b) Grantor agrees to
furnish any such information required for purposes of
Section 2.04(a) to Grantee promptly upon request.
Section
2.05. Recordation. Grantor authorizes the
Commissioner for Patents, the Commissioner for Trademarks and the
Register of Copyrights and any other government officials to record
and register this Agreement upon request by Grantee.
Section
2.06. Other Actions. Without limiting any
other obligations of Grantor in respect of the Collateral set forth
herein or in the August Note or the New Revolver Note, Grantor
hereby agrees to take any action reasonably requested by Grantee to
effect the attachment, perfection and first priority of (subject to
any Permitted Liens (as such term is defined in the August Note
and/or the New Revolver Note)), and the ability of Grantee to
enforce, Grantee’s security interest in any and all of the
Collateral (and to pay all reasonable documented out-of-pocket
expenses incurred in connection therewith), including any of the
following: (a) comply with any provision of any law as to any
Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of Grantee to
enforce, Grantee’s security interest in any material portion
of the Collateral; (b) obtain Governmental Authority and all other
third party consents and approvals, including without limitation
any consent of any licensor, lessor or other person obligated on
the Collateral, to the extent such consent or approval is a
condition to attachment, perfection or priority of, or ability of
Grantee to enforce, Grantee’s security interest in any
material portion of the Collateral; (c) furnish to Grantee, from
time to time, statements and schedules further identifying and
describing the Collateral and such other reports in connection with
the Collateral as Grantee may reasonably request, and all in
reasonable detail; and (d) at Grantee’s request, appear in
and defend any Dispute that may affect Grantor’s title to or
Grantee’s security interest in any material portion of the
Collateral.
ARTICLE III
Representations
and Warranties
Grantor
represents and warrants to Grantee as follows:
Section
3.01. Grantor’s Legal Status. (a) Except
as set forth in Schedule 3.01, Grantor’s exact legal name is
that indicated in the preamble hereto, Grantor has not, during the
past five years, been known by or used any other corporate or
fictitious name, nor been a party to any merger, acquisition or
consolidation; and (b) Grantor is an organization of the type and
organized in the jurisdiction set forth in the preamble
hereto.
Section
3.02. Ownership; No Liens. Grantor owns the
Collateral free and clear of any liens, security interests, or
other encumbrances, except for the security interest created by
this Agreement and any Permitted Liens. No effective security
agreement, financing statement, assignment, equivalent security,
lien or other instrument similar in effect covering all or any part
of the Collateral is on file or of record in any public office,
except such as may have been filed in favor of Grantee relating to
this Agreement or in connection with any Permitted
Liens.
Section
3.03. Validity.
(a) Except as set forth
on Schedule 3.03, Grantor has good title to, has
rights in, and has the power to transfer each item of the
Collateral, free and clear of any and all liens, security
interests, and other encumbrances except any Permitted Liens, and
has full power and authority to grant to Grantee the security
interest in such Collateral pursuant to this
Agreement.
(b) Subject to
Permitted Liens, this Agreement creates a valid security interest
in the Collateral securing the payment and performance in full of
the Secured Obligations. Upon filing appropriate financing
statements in the applicable filing offices, all filings,
registrations and recordings presently necessary to create and
perfect the first priority security interest granted to Grantee in
the Collateral for which a security interest may be perfected by
filing will have been taken.
Section
3.04. Authorization; Approval. No
authorization or approval by, and no notice to or filing with, any
Governmental Authority or any person: (a) is required for the grant
by Grantor of the security interest granted hereby (except as to
any later arising or acquired commercial tort claims) or for the
execution, delivery, and performance of this Agreement by Grantor;
or (b) is required for the perfection of the security interest of
Grantee in the Collateral or exercise by Grantee of its rights and
remedies hereunder, other than the filing of financing statements
in the appropriate offices, to the extent that the security
interest in the Collateral can be perfected by the filing of
financing statements.
Section
3.05. Enforceability. This Agreement is the
legal, valid and binding obligation of Grantor, enforceable against
Grantor in accordance with its terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally or general
equitable principles.
ARTICLE IV
Covenants
Section
4.01. Covenants.
(a) For so long as this
Agreement shall remain in effect, Grantor hereby covenants and
agrees to abide by and perform all obligations and covenants set
forth in the August Note, the New Revolver Note and herein,
including, without limitation, the conversion obligations (as
applicable) and restrictions on indebtedness and liens set forth in
the August Note and/or the New Revolver Note.
(b) Grantor agrees that
it will not interfere with any right, power and remedy of Grantee
provided for in this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by Grantee of any one or more of such
rights, powers or remedies.
(c) Without limiting
any of the foregoing covenants, Grantor agrees (i) not to use
or permit any of the Collateral to be used unlawfully in any
material respect or in material violation of any provision of the
August Note or the New Revolver Note or any applicable law or any
policy of insurance covering the Collateral and (ii) to pay
promptly when due all taxes now or hereafter imposed upon or
affecting any of the Collateral.
ARTICLE V
Rights
and Duties of Grantee
Section
5.01. Grantee
Appointed Attorney-in-Fact.
(a) Grantor, on behalf
of itself and its subsidiaries, hereby irrevocably appoints Grantee
(and each of Grantee’s designees) as Grantor’s and such
subsidiaries’ true and lawful attorney-in-fact, with full
authority and power in the place and stead of Grantor and such
subsidiaries and in the name of Grantor, such subsidiaries, Grantee
or otherwise, from time to time in Grantee’s discretion from
and after the occurrence and during the continuation of an Event of
Default, to take any appropriate action and to execute any
instrument that Grantee may deem reasonably necessary or advisable
to accomplish the purposes of this Agreement, including: (i) to
ask, demand, collect, enforce, xxx for, recover, compromise,
receive, and acquit and receipts for monies due and to become due
under or in respect of any of the Collateral; (ii) to receive,
endorse, and collect any checks, drafts or other instruments,
documents, and chattel paper in connection with clause (a)
above; (iii) to file any claims or take any action or institute any
proceedings (or to settle, adjust or compromise any such
proceeding) that Grantee may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the
rights of Grantee with respect to any of the Collateral; (iv) to
perform the affirmative obligations of Grantor hereunder; (v) to
execute and deliver, for and on behalf of Grantor and such
subsidiaries, any and all instruments, documents, agreements, and
other writings necessary or advisable for the exercise on behalf of
Grantor and its subsidiaries of any rights, benefits or options
created or existing under or pursuant to the Collateral (including
but not limited to executing and delivering to any Governmental
Authority any correspondence or other documentation necessary or
advisable to effect a transfer of any regulatory approval); and
(vi) to execute endorsements, assignments, or other instruments of
transfer with respect to the Collateral.
(b) Notwithstanding the
foregoing, Grantee shall not be obligated to and shall have no
liability to Grantor or any third party for failure to take any of
the actions described in Section 5.01(a).
(c) Grantor hereby
acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 5.01 is irrevocable and
coupled with an interest.
Section
5.02. Grantee May Perform. If Grantor fails to
perform any agreement or covenant contained herein, Grantee may
itself (but shall not be obliged to) perform, or cause performance
of, such agreement or covenant, and in connection therewith Grantee
shall be entitled to act as Grantor’s true and lawful
attorney-in-fact and with the full benefits of Section 5.01
hereof.
ARTICLE VI
Remedies
Section
6.01. Certain Remedies. If any Event of
Default shall have occurred and is continuing: (a) Grantee may
exercise in respect of the Collateral, in addition to other rights
available to it at law or in equity or otherwise, or under the
August Note and/or the New Revolver Note, all the rights and
remedies of a secured party on default under the UCC (whether or
not the UCC applies to the affected Collateral) or any other
applicable law, and also may: (i) require Grantor to, and Grantor
hereby agrees that it shall, at Grantor’s expense and
promptly upon request of Grantee, assemble all or part of the
Collateral as directed by Grantee and make it available to Grantee
at a place to be designated by Grantee that is reasonably
convenient to both parties; (ii) exercise any and all rights and
remedies of Grantor under or in connection with the Collateral;
(iii) foreclose or otherwise enforce Grantee’s security
interest in any manner permitted by law or provided for in this
Agreement, and sell any of all of the Collateral in any
commercially reasonable manner; and (iv) without notice or demand
of legal process, all of which are hereby expressly waived by
Grantor, enter into property where any of the Collateral is located
and take possession thereof; provided, however, that
notwithstanding the foregoing, Grantee may transfer the Collateral
or any portion thereof without any preparation or processing; and
(b) Grantor, on behalf of itself and its subsidiaries, specifically
waives (to the extent permitted by law) all rights of redemption,
stay or appraisal which it has or may have under any law now
existing or hereafter adopted.
ARTICLE VII
Miscellaneous
Section
7.01. Assignments. Grantor and Grantee shall
not be permitted to assign this Agreement without the prior written
consent of the other party and any purported assignment in
violation of this Section 7.01 shall be null and void.
Section
7.02. Successors and Assigns. The provisions
of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
Section
7.03. Notices. All notices and other
communications shall be given as set forth in the August Note and
the New Revolver Note.
Section
7.04. Entire Agreement. This Agreement, the
August Note and the New Revolver Note contain the entire agreement
between the Parties relating to the subject matter hereof and
supersede all oral statements and prior writings with respect
thereto.
Section
7.05. Modification. No provision hereof may be
amended or modified except by an agreement or agreements in writing
executed by Grantor and Grantee.
Section
7.06. No
Delay; Waivers; etc.
(a) No failure to
exercise and no delay in the exercise, on the part of Grantee, of
any right, remedy, power or privilege hereunder and no course of
dealing with respect thereto shall impair such right, remedy, power
or privilege or be construed to or operate as a waiver thereof, nor
shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. Grantee
shall not be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by Grantee.
(b) Grantor waives any
right to require Grantee to proceed against any person or to
exhaust any of the Collateral or to pursue any remedy in such
Grantee’s power.
Section
7.07. Severability. If any provision of this
Agreement shall be held to be invalid, illegal or unenforceable,
then, to the fullest extent permitted by law, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section
7.08. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of California (without giving effect to any conflict of laws
principles that would require application of the laws of another
jurisdiction).
Section
7.09. Jurisdiction. Grantor irrevocably
submits to the jurisdiction of the courts of the State of
California and of the United States sitting in the State of
California, and of the courts of its own corporate domicile with
respect to actions or proceedings brought against it as a
defendant, for purposes of all proceedings. Grantor irrevocably
waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any
proceeding and any claim that any proceeding has been brought in an
inconvenient forum. Any process or summons for purposes of any
proceeding may be served on Grantor by mailing a copy thereof by
registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notices
under the August Note and the New Revolver Note.
Section
7.10. Waiver of Jury Trial. Grantor hereby irrevocably waives any and all
right to trial by jury in any proceeding.
Section
7.11. Waiver of Immunity. To the extent that
Grantor has or hereafter may be entitled to claim or may acquire,
for itself or any of its assets, any immunity from suit,
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment
in aid of execution, or otherwise) with respect to itself or any of
its property, Grantor hereby irrevocably waives such immunity in
respect of its obligations hereunder to the fullest extent
permitted by law.
Section
7.12. Counterparts; Facsimile Signatures. This
Agreement may be executed and delivered by facsimile signature
(including PDF) and in any number of counterparts, each of which
shall be deemed an original but all of which together shall
constitute one and the same instrument.
Section 7.13. Rights
Not Exclusive. The rights, powers and remedies of Grantee
under this Agreement are cumulative and are not exclusive of, and
shall be in addition to, all rights, powers and remedies given to
Grantee by virtue of any law, the August Note and/or the New
Revolver Note, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently
without impairing Grantee’s security interest in the
Collateral.
Section
7.14. Indemnification. Grantor shall, to the
fullest extent permitted by law, indemnify (but only to the extent
of and out of Grantor assets) Grantee against all reasonable
expenses (including reasonable attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Grantee in connection with any claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative, before or by any court or any administrative or
legislative body or authority, in which Grantee is involved, as a
party or otherwise, or with which Grantee may be threatened,
arising in connection with the Prior Notes, the August Note, the
New Revolver Note or this Agreement (each, an “Action”), except to the extent the
same has been finally adjudicated to constitute fraud, gross
negligence or willful misconduct of Grantee or a breach by Grantee
of the Prior Notes, the August Note, the New Revolver Note or this
Agreement. Promptly after receipt by Grantee of notice of the
commencement or threatened commencement against it of any third
party Action, Grantee will notify Grantor. Grantor will be entitled
to assume the defense of the Action unless Grantee shall have
reasonably concluded that a conflict may exist between Grantor and
Grantee in conducting the defense of the Action. If Grantor assumes
the defense of any Action in accordance with the provisions of this
Section, it will not be liable to Grantee for any legal or other
expenses subsequently separately incurred by Grantee in connection
with the defense of such Action. Grantor shall not be liable for
any settlement of a third-party Action effected without its written
consent, which consent may not be unreasonably
withheld.
Section
7.15. Amendment and Restatement;
Reaffirmation. Grantor hereby acknowledges that it has
reviewed the terms and provisions of this Agreement and consents to
the amendment and restatement of the Fourth Amended and Restated
Security Agreement effected pursuant to this Agreement. Grantor
hereby confirms that this Agreement will continue to secure, to the
fullest extent possible in accordance with the terms hereof, the
payment and performance of the obligations set forth herein and in
the August Note and the New Revolver Note, as applicable now or
hereafter existing, and that this Agreement does not constitute a
novation of the obligations and liabilities existing under the
Fourth Amended and Restated Security Agreement or the Prior Notes.
Grantor and Grantee hereby agree that, on the date hereof, the
terms and provisions of the Fourth Amended and Restated Security
Agreement shall be and hereby are amended and restated in their
entirety by the terms, conditions and provisions of this Agreement,
and the terms and provisions of the Fourth Amended and Restated
Security Agreement shall be superseded by this
Agreement.
[Remainder
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first set forth above.
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Xxxx Xxxxxxx, an individual
as Grantee
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By:
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/s/ Xxxx Xxxxxxx
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MusclePharm Corporation, a Nevada corporation
as
Grantor
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By:
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/s/
Xxxxx
Xxxxxxxxx
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Name: Xxxx Xxxxxxx
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Title:
Chief
Financial Officer
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[Signature
page to Fifth Amended and Restated Security Agreement]
