Exhibit 10.25
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT (this "Agreement"), dated as of July 27, 2007,
is made among FREEHAND SYSTEMS INTERNATIONAL, INC., a Delaware corporation (the
"Company"), FREEHAND SYSTEMS, INC., a Nevada corporation and a wholly owned
subsidiary of the Company ("FSI", each of the Company and FSI is a "Debtor" and,
together, "Debtors") and VISION Opportunity Master Fund, Ltd, a Cayman Islands
limited company (the "Secured Party").
W I T N E S E T H:
WHEREAS, on the Closing Date, the Secured Party, will purchase from the
Company certain senior secured notes in an aggregate principal amount of
$1,500,000 (the "Notes");
WHEREAS, the Notes are being acquired by the Secured Party and the
Secured Party has made certain financial accommodations to the Company pursuant
to a Securities Purchase Agreement of even date herewith between the Company and
Secured Parties (the "Purchase Agreement");
WHEREAS, FSI, a wholly-owned subsidiary of the Company and, as such,
will derive substantial benefit and advantage from the financial accommodations
to the Company set forth in the Purchase Agreement and the Notes, and it will be
to FSI's direct interest and economic benefit to assist the Company in procuring
said financial accommodations from Buyer;
WHEREAS, FSI is entering a Guaranty Agreement of even date herewith for
the benefit of the Secured Party, pursuant to which FSI will unconditionally
guarantee the Company's obligations under the Notes; and
WHEREAS, to induce the Secured Party to enter into the Purchase
Agreement and purchase the Notes, each Debtor has agreed to pledge and grant a
security interest in all of its right, title and interest in and to the
Collateral (as hereinafter defined) as security for its Liabilities for the
benefit of the Secured Party and its respective successors and assigns.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
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(a) All capitalized terms used in this Agreement and not otherwise
defined herein shall have the meanings assigned to them in the Note.
(b) As used in this Agreement, the following terms shall have the
following meanings:
"Collateral" has the meaning set forth in Section 2.
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"Documents" means this Agreement, the Purchase Agreement, the Notes and
all other certificates, documents, agreements and instruments delivered to
Secured Party under the Note or in connection with the Obligations.
"Event of Default" has the meaning set forth in Section 8.
"Lien" means any mortgage, deed of trust, pledge, security interest,
assignment, deposit arrangement, charge or encumbrance, lien, or other type of
preferential arrangement.
"Obligations" means the indebtedness, liabilities and other obligations
of the Debtors to Secured Party created under, arising out of or in connection
with the Notes or any of the other Documents, including, without limitation, all
unpaid principal of the Notes, all interest accrued thereon, all fees and all
other amounts payable by Debtors to Secured Party thereunder or in connection
therewith, whether now existing or hereafter arising, and whether due or to
become due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, and including interest that accrues after the commencement by or
against Debtors of any bankruptcy or insolvency proceeding naming such Person as
the debtor in such proceeding.
"Person" means an individual, corporation, partnership, joint venture,
trust, unincorporated organization, governmental agency or authority, or any
other entity of whatever nature.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of California.
(a) Where applicable and except as otherwise defined herein, terms
used in this Agreement shall have the meanings assigned to them in the UCC.
(b) In this Agreement, (i) the meaning of defined terms shall be
equally applicable to both the singular and plural forms of the terms defined;
and (ii) the captions and headings are for convenience of reference only and
shall not affect the construction of this Agreement.
SECTION 2 Security Interest.
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(a) As security for the payment and performance of the
Obligations, each of the Debtors hereby grants to Secured Party a security
interest in all of such Debtor's right, title and interest in, to and under any
and all of the assets of such Debtor, other than the inventory (collectively,
the "Collateral"). The Collateral shall include, without limitation, all
products, proceeds and supporting obligations thereof, including all accounts,
chattel paper, deposit accounts, documents, equipment (including all fixtures),
general intangibles, instruments, investment property, letter-of-credit rights,
money constituting such assets and products, proceeds and supporting obligations
thereof; provided that the Collateral shall not include (i) any agreements,
contracts, rights or instruments if the imposition or grant of any liens on or
with respect to such agreements, contracts, rights or instruments will result in
breach by such Debtor or termination of such agreements, contracts, rights or
instrument; or (ii) any other assets that lien or first priority security
interest has been or will be granted pursuant to the financing arrangements with
Hal Xxxxxxx or another lender acceptable to the Secured Party and their
respective successor and assigns.
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(b) Anything herein to the contrary notwithstanding, (i) Debtors
shall remain liable under any contracts, agreements and other documents included
in the Collateral, to the extent set forth therein, to perform all of its duties
and obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by Secured Party of any of the rights hereunder
shall not release Debtors from any of their respective duties or obligations
under such contracts, agreements and other documents included in the Collateral,
and (iii) Secured Party shall not have any obligation or liability under any
contracts, agreements and other documents included in the Collateral by reason
of this Agreement, nor shall Secured Party be obligated to perform any of the
obligations or duties of Debtors thereunder or to take any action to collect or
enforce any such contract, agreement or other document included in the
Collateral hereunder.
(c) This Agreement shall create a continuing security interest in
the Collateral which shall remain in effect until terminated in accordance with
Section 19 hereof.
SECTION 3 Financing Statements, Etc. Debtors shall execute and
deliver to Secured Party concurrently with the execution of this Agreement, and
each Debtor hereby authorizes Secured Party to file (with or without Debtors
signature), at any time and from time to time thereafter, all financing
statements, assignments, continuation financing statements, termination
statements, account control agreements, and other documents and instruments, in
form reasonably satisfactory to Secured Party, and take all other action, as
Secured Party may reasonably request, to perfect and continue perfected,
maintain the priority of or provide notice of the security interest of Secured
Party in the Collateral and to accomplish the purposes of this Agreement.
Without limiting the generality of the foregoing, each Debtor ratifies and
authorizes the filing by Secured Party of any financing statements filed prior
to the date hereof. Each Debtor will cooperate with Secured Party in obtaining
control (as defined in the UCC) of Collateral consisting of deposit accounts,
investment property, letter of credit rights and electronic chattel paper. Each
Debtor will join with Secured Party in notifying any third party who has
possession of any Collateral of Secured Party's security interest therein and
obtaining an acknowledgment from the third party that it is holding the
Collateral for the benefit of Secured Party. Each Debtor will not create any
chattel paper without placing a legend on the chattel paper acceptable to
Secured Party indicating that Secured Party has a security interest in the
chattel paper.
SECTION 4 Representations and Warranties. Each Debtor
represents and warrants to Secured Party, where applicable, that:
(a) The Company is duly organized, validly existing and in good
standing under the law of the jurisdiction of its organization and has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement and the Notes. FSI is duly organized, validly existing and
in good standing under the law of the jurisdiction of its organization and has
all requisite power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) The execution, delivery and performance by the Company of this
Agreement and the Notes have been duly authorized by all necessary action of the
Company, and each of this Agreement and the Notes constitutes the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms. The execution, delivery and performance by FSI of
this Agreement have been duly authorized by all necessary action of FSI, and
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this Agreement constitutes the legal, valid and binding obligation of FSI,
enforceable against FSI in accordance with its terms.
(c) No authorization, consent, approval, license, exemption of, or
filing or registration with, any governmental authority or agency, or approval
or consent of any other Person, is required for the due execution, delivery or
performance by the Company of this Agreement or the Note or by FSI of this
Agreement, except for any filings necessary to perfect any Liens on any
Collateral.
(d) Schedule 2 sets forth such Debtor's (i) address of the chief
executive office and principal place of business (as of the date of this
Agreement), (ii) jurisdiction of organization, (iii) exact legal name, and (iv)
all other locations where such Debtor conducts business or Collateral is kept
(as of the date of this Agreement).
(e) Such Debtor has rights in, or the power to transfer the
Collateral in which it purports to grant a security interest in the ordinary
course of business, and such Debtor is the sole and complete owner of the
Collateral in which it purports to grant a security interest, free from any Lien
other than Liens in favor of Secured Party.
(f) Such Debtor is not and will not become a lessee under any real
property lease or other agreement governing the location of Collateral in which
it purports to grant a security interest at the premises of another Person
pursuant to which the lessor or such other Person may obtain any rights in any
of the Collateral, and no such lease or other such agreement now prohibits,
restrains, impairs or will prohibit, restrain or impair such Debtor's right to
remove any Collateral in which it purports to grant a security interest from the
premises at which such Collateral is situated, except for the usual and
customary restrictions contained in such leases of real property.
SECTION 5 Covenants. So long as any of the Obligations remain
unsatisfied, each Debtor agrees that:
(a) Such Debtor shall appear in and defend any action, suit or
proceeding which may affect to a material extent its title to, or right or
interest in, or Secured Party's right or interest in, the Collateral in which it
purports to grant a security interest, and shall do and perform all reasonable
acts that may be necessary and appropriate to maintain, preserve and protect the
Collateral.
(b) Such Debtor shall comply in all material respects with all
laws, regulations and ordinances, and all policies of insurance, relating in a
material way to the possession, operation, maintenance and control of the
Collateral in which it purports to grant a security interest.
(c) Such Debtor shall give prompt written notice to Secured Party
(and in any event not later than 30 days following any change described below in
this subsection) of: (i) any change in the location of such Debtor's chief
executive office or principal place of business; (ii) any change in the
locations set forth in Schedule 2; (iii) any change in its name; (iv) any
changes in its identity or structure in any manner which might make any
financing statement filed hereunder incorrect or misleading; (v) any change in
its registration as an organization (or any new such registration); or (vi) any
change in its jurisdiction of organization; provided that such Debtor shall not
locate any Collateral in which it purports to grant a security interest outside
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of the United States nor shall such Debtor change its jurisdiction of
organization to a jurisdiction outside of the United States.
(d) Such Debtor shall carry and maintain in full force and effect,
at its own expense and with financially sound and reputable insurance companies,
insurance with respect to the Collateral in which it purports to grant a
security interest in such amounts, with such deductibles and covering such risks
as is customarily carried by companies engaged in the same or similar businesses
and owning similar properties in the localities where such Debtor operates.
(e) Such Debtor shall keep separate, accurate and complete books
and records with respect to the Collateral in which it purports to grant a
security interest, disclosing Secured Party's security interest hereunder.
(f) Such Debtor shall not surrender or lose possession of (other
than to Secured Party), sell, lease, rent, or otherwise dispose of or transfer
any of the Collateral in which it purports to grant a security interest or any
right or interest therein, except in the ordinary course of business or unless
such Collateral is replaced by comparable Collateral of similar value.
(g) Such Debtor shall keep the Collateral in which it purports to
grant a security interest free of all Liens except Liens in favor of Secured
Party.
(h) Such Debtor shall pay and discharge all taxes, fees,
assessments and governmental charges or levies imposed upon it with respect to
the Collateral in which it purports to grant a security interest prior to the
date on which penalties attach thereto, except to the extent such taxes, fees,
assessments or governmental charges or levies are being contested in good faith
by appropriate proceedings.
(i) Such Debtor shall maintain and preserve its legal existence,
its rights to transact business and all other rights, franchises and privileges
necessary or desirable in the normal course of its business and operations and
the ownership of the Collateral in which it purports to grant a security
interest.
(j) Upon the request of Secured Party and to the extent any of the
same constitute Collateral in which it purports to grant a security interest,
Such Debtor shall (i) immediately deliver to Secured Party, or an agent
designated by it, appropriately endorsed or accompanied by appropriate
instruments of transfer or assignment, all documents and instruments, all
certificated securities with respect to any investment property, all letters of
credit and all accounts and other rights to payment at any time evidenced by
promissory notes, trade acceptances or other instruments, (ii) cause any
securities intermediaries to show on their books that Secured Party is the
entitlement holder with respect to any investment property, and/or obtain
account control agreements in favor of Secured Party from such securities
intermediaries, in form and substance satisfactory to Secured Party, with
respect to any investment property, as requested by Secured Party, and (iii)
provide such notice, obtain such acknowledgments and take all such other action,
with respect to any chattel paper, documents and letter-of credit rights, as
Secured Party shall reasonably specify.
(k) Such Debtor shall at any reasonable time and from time to time
permit Secured Party or any of its agents or representatives to visit the
premises of such Debtor and inspect the Collateral in which it purports to grant
a security interest and to examine and make copies of and abstracts from the
records and books of account of such Debtor.
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(l) To the extent such accounts and rights to payment constitute
Collateral in which it purports to grant a security interest, such Debtor shall:
(i) with such frequency as Secured Party may require, furnish to Secured Party
such lists of customers and other information relating to the accounts and other
rights to payment as Secured Party shall reasonably request; (ii) give only
normal discounts, allowances and credits as to accounts and other rights to
payment, in the ordinary course of business, according to normal trade practices
utilized by such Debtor, and enforce all accounts and other rights to payment
strictly in accordance with their terms, except that such Debtor may grant any
extension of the time for payment or enter into any agreement to make a rebate
or otherwise to reduce the amount owing on or with respect to, or compromise or
settle for less than the full amount thereof, any account or other right to
payment, in the ordinary course of business, according to normal and prudent
trade practices utilized by such Debtor; and (iii) upon the request of Secured
Party (A) at any time, notify all or any designated portion of the account
debtors and other obligors on the accounts and other rights to payment of the
security interest hereunder, and (B) upon the occurrence and during the
continuance of an Event of Default, notify the account debtors and other
obligors on the accounts and other rights to payment or any designated portion
thereof that payment shall be made directly to Secured Party or to such other
Person or location as Secured Party shall specify.
(m) Such Debtor shall (i) notify Secured Party of any material
claim made or asserted against the Collateral in which it purports to grant a
security interest by any Person and of any change in the composition of the
Collateral or other event which could materially adversely affect the value of
the Collateral or Secured Party's Lien thereon; (ii) furnish to Secured Party
such statements and schedules further identifying and describing the Collateral
and such other reports and other information in connection with the Collateral
as Secured Party may reasonably request, all in reasonable detail; and (iii)
upon reasonable request of Secured Party make such demands and requests for
information and reports as Debtor is entitled to make in respect of the
Collateral.
(n) Such Debtor shall not enter into any agreement (including any
license or royalty agreement) pertaining to any of its patents, copyrights,
trademarks, service marks and trade names, to the extent the same constitute
Collateral in which it purports to grant a security interest, except for
non-exclusive licenses in the ordinary course of business.
(o) At Secured Party's request, such Debtor will obtain from each
Person from whom Debtor leases any premises at which any Collateral in which it
purports to grant a security interest is at any time present such collateral
access, subordination, waiver, consent and estoppel agreements as Secured Party
may require, in form and substance satisfactory to Secured Party.
SECTION 6 Collection of Accounts. Until Secured Party exercises
its rights hereunder to collect the accounts and other rights to payment, each
Debtor shall endeavor in the first instance diligently to collect all amounts
due or to become due on or with respect to the accounts and other rights to
payment to the extent the same constitute Collateral in which it purports to
grant a security interest. At the request of Secured Party, upon the occurrence
and during the continuance of any Event of Default, all remittances received by
each Debtor with respect to Collateral in which it purports to grant a security
interest shall be held in trust for Secured Party and, in accordance with
Secured Party's instructions, remitted to Secured Party or deposited to an
account of Secured Party in the form received (with any necessary endorsements
or instruments of assignment or transfer).
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SECTION 7 Authorization; Secured Party Appointed
Attorney-in-Fact.
Secured Party shall have the right to, in the name of Debtors, or in
the name of Secured Party or otherwise, upon notice to but without the
requirement of assent by Debtors, and each Debtor hereby constitutes and
appoints Secured Party (and any of Secured Party's officers, employees or agents
designated by Secured Party) as such Debtor's true and lawful attorney-in-fact,
with full power and authority to: (i) sign and file any of the financing
statements and other documents and instruments which must be executed or filed
to perfect or continue perfected, maintain the priority of or provide notice of
Secured Party's security interest in the Collateral in which such Debtor
purports to grant a security interest; (ii) assert, adjust, xxx for, compromise
or release any claims under any policies of insurance; and (iii) execute any and
all such other documents and instruments, and do any and all acts and things for
and on behalf of such Debtor, which Secured Party may deem reasonably necessary
or advisable to maintain, protect, realize upon and preserve the Collateral and
Secured Party's security interest therein and to accomplish the purposes of this
Agreement. Secured Party agrees that, except upon and during the continuance of
an Event of Default, it shall not exercise the power of attorney, or any rights
granted to Secured Party, pursuant to clauses (ii) and (iii). The foregoing
power of attorney is coupled with an interest and irrevocable so long as the
Obligations have not been paid and performed in full. Each Debtor hereby
ratifies, to the extent permitted by law, all that Secured Party shall lawfully
and in good faith do or cause to be done by virtue of and in compliance with
this Section 7.
SECTION 8 Events of Default. Any of the following events which
shall occur and be continuing shall constitute an "Event of Default":
(a) The Company shall fail to pay when due any amount of principal
of or interest on the Note or other amount payable hereunder or under the Note
or any other Document or in respect of the Obligations.
(b) Any representation or warranty by a Debtor, where applicable,
under or in connection with the Purchase Agreement, this Agreement, the Note or
any other Document shall prove to have been incorrect when made or deemed made.
(c) A Debtor, where applicable, shall fail to perform or observe
any other term, covenant or agreement contained in this Agreement, the Note or
any other Document on its part to be performed or observed; or any "Event of
Default" as defined in the Note shall have occurred.
(d) A Debtor shall admit in writing its inability to, or shall
fail generally or be generally unable to, pay its debts (including its payrolls)
as such debts become due, or shall make a general assignment for the benefit of
creditors; or a Debtor shall file a voluntary petition in bankruptcy or a
petition or answer seeking reorganization, to effect a plan or other arrangement
with creditors or any other relief under the Bankruptcy Reform Act of 1978, as
amended or recodified from time to time (the "Bankruptcy Code") or under any
other state or federal law relating to bankruptcy or reorganization granting
relief to debtors, whether now or hereafter in effect, or shall file an answer
admitting the jurisdiction of the court and the material allegations of any
involuntary petition filed against such Debtor pursuant to the Bankruptcy Code
or any such other state or federal law; or a Debtor shall be adjudicated a
bankrupt, or shall make an assignment for the benefit of creditors, or shall
apply for or consent to the appointment of any custodian, receiver or trustee
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for all or any substantial part of such Debtor's property, or shall take any
action to authorize any of the actions set forth above in this paragraph; or an
involuntary petition seeking any of the relief specified in this paragraph shall
be filed against a Debtor and not be dismissed within sixty (60) days; or any
order for relief shall be entered against a Debtor in any involuntary proceeding
under the Bankruptcy Code or any such other state or federal law referred to in
this subsection (d).
(e) A Debtor shall (i) liquidate, wind up or dissolve (or suffer
any liquidation, wind-up or dissolution), (ii) suspend its operations, or (iii)
take any action to authorize any of the actions or events set forth above in
this subsection (e).
(f) Any material impairment in the value of the Collateral or the
priority of Secured Party's Lien hereunder.
(g) Any levy upon, seizure or attachment of any of the Collateral
which shall not have been rescinded or withdrawn within ten (10) days after the
occurrence of such event.
(h) Any loss, theft or substantial damage to, or destruction of,
any material portion of the Collateral (unless within 10 days after the
occurrence of any such event, Debtors furnish to Secured Party evidence
satisfactory to Secured Party that the amount of any such loss, theft, damage to
or destruction of the Collateral is fully insured under policies naming Secured
Party as an additional named insured or loss payee).
SECTION 9 Remedies.
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(a) Upon the occurrence and continuance of any Event of Default,
Secured Party may declare any of the Obligations to be immediately due and
payable and shall have, in addition to all other rights and remedies granted to
it in this Agreement, the Notes or any other Document, all rights and remedies
of a secured party under the UCC and other applicable laws. Without limiting the
generality of the foregoing, (i) Secured Party may peaceably and without notice
enter any premises of Debtors, take possession of any the Collateral, remove or
dispose of all or part of the Collateral on any premises of Debtors or
elsewhere, or, in the case of equipment, render it nonfunctional, and otherwise
collect, receive, appropriate and realize upon all or any part of the
Collateral, and demand, give receipt for, settle, renew, extend, exchange,
compromise, adjust, or xxx for all or any part of the Collateral, as Secured
Party may determine; (ii) Secured Party may require any Debtor to assemble all
or any part of the Collateral and make it available to Secured Party at any
place and time designated by Secured Party; (iii) Secured Party may secure the
appointment of a receiver of the Collateral or any part thereof (to the extent
and in the manner provided by applicable law); (iv) Secured Party may sell,
resell, lease, use, assign, license, sublicense, transfer or otherwise dispose
of any or all of the Collateral in its then condition or following any
commercially reasonable preparation or processing (utilizing in connection
therewith any of Debtors' assets, without charge or liability to Secured Party
therefor) at public or private sale, by one or more contracts, in one or more
parcels, at the same or different times, for cash or credit, or for future
delivery without assumption of any credit risk, all as Secured Party deems
advisable; provided, however, that Debtors shall be credited with the net
proceeds of sale only when such proceeds are finally collected by Secured Party.
Secured Party shall have the right upon any such public sale, and, to the extent
permitted by law, upon any such private sale, to purchase the whole or any part
of the Collateral so sold, free of any right or equity of redemption, which
right or equity of redemption Debtors hereby release, to the extent permitted by
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law. Secured Party shall give Debtors such notice of any private or public sales
as may be required by the UCC or other applicable law.
(b) For the purpose of enabling Secured Party to exercise its
rights and remedies under this Section 9 or otherwise in connection with this
Agreement, each Debtor hereby grants to Secured Party an irrevocable,
non-exclusive and assignable license (exercisable without payment or royalty or
other compensation to Debtor) to use, license or sublicense any intellectual
property Collateral.
(c) Secured Party shall not have any obligation to clean up or
otherwise prepare the Collateral for sale. Secured Party has no obligation to
attempt to satisfy the Obligations by collecting them from any other Person
liable for them, and Secured Party may release, modify or waive any Collateral
provided by any other Person to secure any of the Obligations, all without
affecting Secured Party's rights against Debtors. Debtor waives any right it may
have to require Secured Party to pursue any third Person for any of the
Obligations. Secured Party may comply with any applicable state or federal law
requirements in connection with a disposition of the Collateral and compliance
will not be considered adversely to affect the commercial reasonableness of any
sale of the Collateral. Secured Party may sell the Collateral without giving any
warranties as to the Collateral. Secured Party may specifically disclaim any
warranties of title or the like. This procedure will not be considered adversely
to affect the commercial reasonableness of any sale of the Collateral. If
Secured Party sells any of the Collateral upon credit, Debtors will be credited
only with payments actually made by the purchaser, received by Secured Party and
applied to the indebtedness of the purchaser. In the event the purchaser fails
to pay for the Collateral, Secured Party may resell the Collateral and Debtors
shall be credited with the proceeds of the sale.
(d) To the extent a Debtor uses the proceeds of any of the
Obligations to purchase Collateral, such Debtor's repayment of the Obligations
shall apply on a "first-in, first-out" basis so that the portion of the
Obligations used to purchase a particular item of Collateral shall be paid in
the chronological order such Debtor purchased the Collateral.
(e) The cash proceeds actually received from the sale or other
disposition or collection of Collateral, and any other amounts received in
respect of the Collateral the application of which is not otherwise provided for
herein, shall be applied first, to the payment of the reasonable costs and
expenses of Secured Party in exercising or enforcing its rights hereunder and in
collecting or attempting to collect any of the Collateral, and to the payment of
all other amounts payable to Secured Party pursuant to Section 13 hereof; and
second, to the payment of the Obligations. Any surplus thereof which exists
after payment and performance in full of the Obligations shall be promptly paid
over to Debtors or otherwise disposed of in accordance with the UCC or other
applicable law. Debtors shall remain liable to Secured Party for any deficiency
which exists after any sale or other disposition or collection of Collateral.
SECTION 10 Certain Waivers. Each Debtor waives, to the fullest
extent permitted by law, (i) any right of redemption with respect to the
Collateral in which it purports to grant a security interest, whether before or
after sale hereunder, and all rights, if any, of marshalling of the Collateral
or other collateral or security for the Obligations; (ii) any right to require
Secured Party (A) to proceed against any Person, (B) to exhaust any other
collateral or security for any of the Obligations, (C) to pursue any remedy in
Secured Party's power, or (D) to make or give any presentments, demands for
performance, notices of nonperformance, protests, notices of protests or notices
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of dishonor in connection with any of the Collateral; and (iii) all claims,
damages, and demands against Secured Party arising out of the repossession,
retention, sale or application of the proceeds of any sale of the Collateral
SECTION 11 Notices. All notices or other communications
hereunder shall be in writing (including by facsimile transmission or by email)
and mailed, sent or delivered to the respective parties hereto at or to their
respective addresses, facsimile numbers or email addresses set forth below their
names on the signature pages hereof, or at or to such other address, facsimile
number or email address as shall be designated by any party in a written notice
to the other parties hereto. All such notices and other communications shall be
deemed to be delivered when a record (within the meaning of the UCC) has been
(i) delivered by hand; (ii) sent by mail upon the earlier of the date of receipt
or five business days after deposit in the mail, first class (or air mail as to
communications sent to or from the United States); (iii) sent by facsimile
transmission; or (iv) sent by email.
SECTION 12 No Waiver; Cumulative Remedies. No failure on the
part of Secured Party to exercise, and no delay in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, remedy, power or
privilege preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights and remedies under this
Agreement are cumulative and not exclusive of any rights, remedies, powers and
privileges that may otherwise be available to Secured Party.
SECTION 13 Costs and Expenses. Each party shall pay the fees and
expenses of its advisors, counsel, accountants and other experts, if any, and
all other expenses, incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement, provided,
however, that the Company shall pay all reasonable attorneys' fees and expenses
(exclusive of disbursements and out-of-pocket expenses) incurred by Buyer in
connection with the preparation, negotiation, execution and delivery of this
Agreement.
SECTION 14 Binding Effect. This Agreement shall be binding upon,
inure to the benefit of and be enforceable by each of Debtors, Secured Party and
their respective successors and assigns and shall bind any Person who becomes
bound as a debtor to this Agreement. Debtors may not assign, transfer,
hypothecate or otherwise convey its rights, benefits, obligations or duties
hereunder without the prior express written consent of Secured Party. Any such
purported assignment, transfer, hypothecation or other conveyance by Debtors
without the prior express written consent of Secured Party shall be void.
Debtors acknowledge and agree that in connection with an assignment of the
Obligations Secured Party may assign all or a portion of its rights and
obligations hereunder. Upon any assignment of Secured Party's rights hereunder,
such assignee shall have, to the extent of such assignment, all rights of
Secured Party hereunder. Debtors agree that, upon any such assignment, such
assignee may enforce directly, without joinder of Secured Party, the rights of
Secured Party set forth in this Agreement. Any such assignee shall be entitled
to enforce Secured Party's rights and remedies under this Agreement to the same
extent as if it were the original secured party named herein.
SECTION 15 Governing Law; Consent to Jurisdiction. This
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York without giving effect to the rules governing the conflicts
of laws. Each of the parties consents to the exclusive jurisdiction of the
Federal courts whose districts encompass any part of the County of New York
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located in the City of New York in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions. Each party waives its
right to a trial by jury. Each party to this Agreement irrevocably consents to
the service of process in any such proceeding by the mailing of copies thereof
by registered or certified mail, postage prepaid, to such party at its address
set forth herein. Nothing herein shall affect the right of any party to serve
process in any other manner permitted by law.
SECTION 16 Entire Agreement; Amendment. This Agreement
supersedes all other prior oral or written agreements between each Debtor,
Secured Party and their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement and instruments
referenced herein and therein contain the entire understanding of the parties
with respect to the matters covered herein and therein. This Agreement shall not
be amended except by the written agreement of the parties.
SECTION 17 Severability. Whenever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under all applicable laws and regulations. If, however, any provision of this
Agreement shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or invalidity without affecting the remaining
provisions of this Agreement, or the validity or effectiveness of such provision
in any other jurisdiction.
SECTION 18 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement.
SECTION 19 Termination. Upon payment and performance in full of
all Obligations, the security interest created under this Agreement shall
terminate and Secured Party shall promptly execute and deliver to Debtors such
documents and instruments reasonably requested by Debtors as shall be necessary
to evidence termination of all security interests given by Debtors to Secured
Party hereunder.
SECTION 20 Conflicts. In the event of any conflict or
inconsistency between this Agreement and the Note, the terms of this Agreement
shall control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
FREEHAND SYSTEMS INTERNATIONAL, INC.
By: /s/ Xxx Xxxx
--------------------------------
Name: Xxx Xxxx
Title: President and CEO
FREEHAND SYSTEMS, INC.
By: /s/ Xxx Xxxx
--------------------------------
Name: Xxx Xxxx
Title: President and CEO
Acknowledged and agreed to:
VISION OPPORTUNITY MASTER FUND, LTD.
By:_____________________________________
Name:
Title:
[SIGNATURE PAGE TO SECURITY AGREEMENT]
SCHEDULE 1
to the Security Agreement
FREEHAND SYSTEMS INTERNATIONAL, INC.
1. Jurisdiction of Organization
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---------------------------
2. Chief Executive Office and Principal Place of Business
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3. Other locations where Debtor conducts business or Collateral is kept
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FREEHAND SYSTEMS, INC.
1. Jurisdiction of Organization
----------------------------
---------------------------
2. Chief Executive Office and Principal Place of Business
------------------------------------------------------
---------------------------
---------------------------
---------------------------
3. Other locations where Debtor conducts business or Collateral is kept
--------------------------------------------------------------------
