EXHIBIT 10.51
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated effective the 14th day of November,
2000, is made by and among, XXXXXXXXXX.XXX, INC., a Delaware corporation
("Debtor"), and XXXXXX.XXX, INC., a Delaware corporation, XXXXXX X. XXXXXXXX,
and XXX ROC LIMITED PARTNERSHIP, a New York limited partnership (each
individually a "Secured Party" and collectively the "Secured Parties").
WHEREAS, the Secured Parties require, as an inducement to provide the
Financing (as defined below), to be secured on the terms and conditions below;
WHEREAS, the Secured Parties have advanced sums to the Debtor, due on
demand, with interest at the rate of Ten percent (10%) per annum, as follows;
(i) Two Hundred Fifty Thousand Dollars by the Xxx Roc Limited Partnership; (ii)
One Hundred Thousand Dollars by Xxxxxx X. Xxxxxxxx; and (iii) One Hundred
Thousand Dollars by XXXxxx.xxx, Inc. and the to parties hereto contemplate
further advances by the Secured Parties to the Debtor; (the completed and
contemplated advances collectively referred to as the "Financing").
WHEREAS, the Debtor issued to the Secured Parties, as part of the
Financing, secured promissory notes, with interest at the rate of Ten percent
(10%) per annum, in the principal amounts as follows; (i) Two Hundred Fifty
Thousand Dollars to the Xxx Roc Limited Partnership, dated effective the 10th
day of October; (ii) One Hundred Thousand Dollars to XXXxxx.xxx, Inc., dated
effective the 31st day of October; and (iii) One Hundred Thousand Dollars to
Xxxxxx X. Xxxxxxxx, dated effective the 14th day of November and hereby
warrants, covenants and agrees to issue secured promissory notes for any future
advances as part of the Financing (each individually referred to as a "Note" and
collectively as the "Notes") ;
WHEREAS, the Debtor has agreed, as an inducement to the Financing, to
secure all of its obligations under the Notes by granting to each of the Secured
Parties a security interest in certain assets of the Debtor listed on SCHEDULE
"A" attached hereto and incorporated herein by reference, on the terms and
conditions set forth herein;
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:
1. Grant of Security Interest. As collateral security for the payment,
performance and observance of the Notes (the "Obligations"), the Debtor hereby
grants to the Secured Parties a security interest in; (a) any monies due the
Debtor arising out of an exempt offering by the Debtor of up to 92 units
consisting of convertible debentures and warrants offered to accredited
investors through the investment bank of X.X. Xxxxxx & Company and/or any other
private placement of equity or debt offered by the Company, with the written
consent of the Secured Parties, at any time from the date hereof until all
amounts due and owing under the Notes shall be repaid, (b) , and a collateral
assignment of, all of the Debtor's intellectual property (including, but not
limited to patents, patent applications, patents pending, licenses and
trademarks), and (c) all of the Debtor's account receivables, inventory and
equipment, as each are described on SCHEDULE "A" attached hereto, together with
any and all additions thereto and replacements and proceeds thereof
(collectively, the "Collateral").
2. Representations, Warranties and Covenants. The Debtor represents, warrants
and covenants as follows:
(a) The Debtor has full corporate power, authority and legal right to
grant a security interest in all of the Collateral pursuant to this Agreement,
and this Agreement constitutes the
legal, valid and binding obligation of the Debtor, enforceable against it in
accordance with the terms.
(b) No consent of any other party (including, without limitation,
stockholders or creditors of any of the Debtor) and no consent, authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required and has not been obtained either (i)
for the grant of the security interest in the Collateral pursuant to this
Agreement, or (ii) for the execution, delivery or performance of this Agreement.
(c) All filings, registrations and recordings necessary, appropriate or
reasonably requested by the Secured Parties to create, preserve, protect and
perfect the security interest granted by the Debtor to the Secured Parties
hereby in respect of the Collateral and required to be made on or before the
date hereof have been accomplished. The security interest granted to the Secured
Parties pursuant to this Agreement in and to the Collateral constitutes and
hereafter will constitute a perfected security interest therein (assuming fully
executed UCC-1 Financing Statements are properly filed with the Secretary of
State of the State of New York, County of New York, superior and prior to the
rights of all other persons therein, and subject to no other Liens (as such term
is defined below)).
(d) The Debtor is, as of the date hereof, and, as to Collateral
acquired by it from time to time after the date hereof, will be, the owner of
the Collateral free from any Lien, except Permitted Liens (as such term is
defined below) or other right, title or interest of any persons other than the
Secured Parties, and the Debtor shall defend its ownership of the Collateral
against all claims and demands of all persons at any time claiming any interest
therein adverse to the Secured Parties.
(e) There is no financing statement or assignment on file in any
jurisdiction (or similar statement, notice of assignment or instrument of
registration under the law of any jurisdiction or the U.S. Patent and Trademark
Office) covering or purporting to cover any interest of any kind in the
Collateral, and the Debtor shall not execute or authorize to be filed in any
public office any financing statement (or similar statement, notice of
assignment or instrument of registration under the law of any jurisdiction)
relating to its ownership of the Collateral, except financing statements filed
or to be filed in respect of, and covering the security interests granted hereby
by the Debtor or granted by the Debtor to such holders.
(f) The chief executive office of Debtor is located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Debtor shall not move its chief executive
offices until, (i) it has given to the Secured Party not less than fifteen (15)
days' prior written notice of its intention so to do (or, if move is within New
York County, such prior notice up to fifteen (15) days as can be reasonably
given), setting forth the new location (which shall be in the continental United
States of America) and such other information in connection therewith as the
Secured Party may reasonably request, and (ii) with respect to such new
location, the Debtor shall have taken all action reasonably satisfactory to the
Secured Parties to maintain the perfection and proof of the security interest of
the Secured Parties in the Collateral intended to be granted hereby, including,
without limitation, obtaining waivers of landlord's or warehouseman's liens with
respect to such new location.
(g) The Debtor shall not change its corporate name until (i) it shall
have given to the Secured Parties not less than fifteen (15) days' prior written
notice of its intention so to do, clearly describing such new name and providing
such other information in connection therewith as the Secured Parties may
request, and (ii) with respect to such new name, the Debtor shall have
taken all action reasonably satisfactory to the Secured Parties to maintain the
perfection and proof of the security interest of the Secured Parties in the
Collateral intended to be granted hereby.
(h) All of the Collateral held on the date hereof and provided for
herein by the Debtor is located at (i) the Debtor's chief executive offices at
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, (ii) the Debtor's sales office
located at 00000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, (xxx) the Debtor's co-location
facility located at 000 Xxxxxx Xxxxxx, Xxxxxxx Xxxxxxxxxxxxx and the Connecticut
offices of Energenic, LLC, a software development company working exclusively
for the Company (collectively the "Collateral Location"). All Collateral now
held or subsequently acquired shall be kept at the Collateral Location or such
new location as the Debtor may establish, provided, however, that before
establishing such new location, (i) the Debtor shall have given the Secured
Parties no less than fifteen (15) days' prior notice thereof (or, if move is
within New York County, such prior notice up to fifteen (15) days as can be
reasonably given), clearly describing such new location (which shall be in the
continental United States of America) and shall have provided such other
information in connection therewith as the Secured Party may reasonably request,
and (ii) with respect to such new location, the Debtor shall have taken all
action reasonably satisfactory to the Secured Parties to maintain the perfection
and proof of the security interest in the Collateral intended to be granted
hereby, including, without limitation, obtaining waivers of landlord's or
warehouseman's liens with respect to such new location.
(i) The Debtor will not assign, transfer, sell, lease or otherwise
dispose of any of the Collateral except in the ordinary course of business.
(j) The Debtor will use its ownership of the Collateral for lawful
purposes only, and in conformity with all applicable laws, ordinances and
regulations.
(k) The Collateral is now and shall remain personal property, and the
Debtor will not permit any material part of the Collateral to become a fixture
without prior written notice to and consent of the Secured Parties and without
first making all arrangements, and delivering, or causing to be delivered, to
the Secured Parties all instruments and documents, including, without
limitation, waivers and subordination agreements by any landlords or mortgagees,
reasonably requested by and reasonably satisfactory in form and substance to the
Secured Parties to preserve and protect the security interest granted herein,
and to effectuate or maintain the priority thereof, against all persons.
(l) The Debtor will maintain at its chief executive office proper books
of account and records in accordance with generally accepted accounting
principles applied on a consistent basis, and will deliver to the Secured
Parties the following:
(i) as soon as available and in any event within sixty (60)
days after the end of each quarter of its fiscal years,
its balance sheet as of the end of such quarter,
statements of income, stockholders' equity and the
related statements of its cash flows for the period
commencing at the end of the previous fiscal year and
ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures
for the corresponding period of the preceding fiscal
year in reasonable detail and prepared in accordance
with generally accepted accounting principles for
interim accounting period accounting, consistently
applied (subject to year-end audit adjustments) in the
form filed with the Securities and Exchange Commission
("Commission") or, if no such filings are made, such
financial information shall be duly certified by the
President or Chief Financial Officer; and
(ii) as soon as available and in any event within one
hundred and forty (140) days after the end of each of
its fiscal years, a copy its balance sheet as of the
end of such fiscal year, statements of income,
stockholders' equity and the related statements of its
cash flows for the period commencing at the end of the
previous fiscal year and ending with the end of such
fiscal year, setting forth in comparative form the
corresponding figures for the
corresponding preceding fiscal year in reasonable
detail and prepared in accordance with generally
accepted accounting principles for interim accounting
period accounting, consistently applied (subject to
year-end audit adjustments) in the form filed with the
Securities and Exchange Commission ("Commission") or,
if no such filings are made, such financial information
shall be duly certified by the President or Chief
Financial Officer
(m) The Secured Parties and their agents, advisors and counsel may, at
the Secured Party's expense, visit and inspect any of the facilities of the
Debtor for the purpose of inspecting the Collateral, at reasonable times and
with reasonable prior notice during normal business hours in a manner not
disruptive to the Debtor's business. The Debtor will furnish to the Secured
Parties such other information as it from time to time may reasonably request.
(n) The Debtor will preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified, as a foreign corporation in each jurisdiction in
which such qualification is necessary in view of its business and operations or
the ownership of its properties, including, without limitation, all
jurisdictions in which any of the Collateral is located. The Debtor shall
preserve and maintain all licenses and other rights to use patents, processes,
licenses, trademarks, trade names, inventions, intellectual property rights or
copyrights owned or possessed by it and necessary to the conduct of its
business.
(o) The Debtor will pay and discharge when due and payable, all lawful
taxes, subject to any available extensions, assessments and governmental charges
or levies imposed upon the income, profits, property or business of it;
provided, however, that any such tax, assessment, charge or levy need not be
paid if the validity thereof shall currently be contested in good faith by
appropriate proceedings and if it shall have set aside on its books adequate
reserves with respect thereto, and provided, further, that it will pay all such
taxes, assessments, charges or
levies forthwith upon the commencement of proceedings to foreclose any Lien
which may have attached to the Collateral as security therefore.
(p) The Debtor will not create, incur, assume or suffer to exist any
Lien of any nature, upon or with respect to any of the Collateral or assign or
otherwise convey any right to receive income, except Permitted Liens.
(q) The Debtor will not incur or suffer to exist any Indebtedness (as
such term is defined below) except:
(i) Indebtedness secured by purchase money security interests
securing the purchase price of goods and services and capitalized equipment
leases, but specifically excluding any sale leaseback of all or any portion of
the Collateral; and
(ii) Indebtedness relating to current liabilities incurred in
the ordinary course of business, including, without limitation, liabilities
incurred in fulfillment of purchase orders received by the Debtor; but in no
event in excess of Fifty Thousand Dollars ($50,000) without prior written
consent.
(iii) Indebtedness related to debt or equity fund raising,
except as set forth in Paragraph 1, above.
(r) The Debtor will not permit any change in the nature of its business
or merge or consolidate with any other person, nor permit any impairment of the
Collateral.
(s) The Debtor will not purchase, redeem, retire, or otherwise acquire
for value any shares of its respective capital stock (or rights, options or
warrants to purchase such shares) now or hereafter outstanding or return any
capital to its stockholders, and Debtor shall not declare or pay any dividends
or make any distribution of assets to its stockholders as such.
(t) The Debtor will not sell, transfer, lease or otherwise dispose of,
in one transaction or a series of transactions, all or substantially all of its
assets.
(u) The Debtor shall conduct its business in the ordinary course and
the Debtor shall not permit or cause work typically performed by it to be
performed by another Affiliate of the Debtor or to take any other actions to
purposely diminish the value of the Collateral;
(v) The Debtor will not guarantee any Indebtedness or make any loan or
advance to any person, except customary travel and entertainment advances to
employees.
(w) The Debtor will, at its own cost and expense, perform all acts and
execute all documents reasonably requested by the Secured Parties from time to
time to evidence, perfect, maintain or enforce the Secured Party's security
interest granted herein, and to effectuate or maintain the priority thereof or
otherwise to carry out the provisions and purposes of this Agreement.
(x) The Debtor shall promptly advise the Secured Parties of any event
or occurrence which results in or is likely to result in a breach of the
covenants contained herein, describing such event or occurrence in reasonable
detail. The Debtor will also promptly advise the Secured Parties of any facts
which cast any doubt upon the accuracy or completeness in any material respects
of any of the representations and warranties contained herein.
3. Definitions. For purposes of this Agreement, the following terms shall have
the following meanings:
(a) "Affiliate" has the meaning ascribed to that term in Rule 12b-2
under the Securities Exchange Act of 1934, or any successor rule;
(b) "Indebtedness" shall mean, with respect to any person, (i) all
obligations of such person for borrowed money, or with respect to deposits or
advances of any kind (other than deposits, advances or excess payments accepted
in connection with the sale by such person of products or services in the
ordinary course of business), (ii) all obligations of such person evidenced by
bonds, debentures, notes or similar instruments, with the specific exception of
certain contemplated offerings made through X.X. Xxxxxx & Company, including,
but not limited to an exempt offering by the Debtor of up to 92 units consisting
of convertible debentures and warrants offered to accredited investors and/or
any other private placement of equity or debt offered by the Company with the
written permission of the Secured Parties, (iii) all obligations of such person
upon which interest charges are customarily paid (other than obligations
accepted in connection with the purchase by such person of products or services
in the ordinary course of business), (iv) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person, (v) all obligations of such person issued or assumed
as the deferred purchase price of property or services (other than accounts
payable to suppliers incurred in the ordinary course of business and paid when
due), (vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien or security interest on property owned or acquired by such person
whether or not the obligations secured thereby have been assumed, (vii) all
obligations of such person under leases required to be accounted
for as capital leases under generally accepted accounting principles, and (viii)
all guarantees of such person;
(c) "Lien" shall mean any restriction, mortgage, pledge, assignment,
security interest, encumbrance, lien or charge of any kind, any conditional sale
or other title retention agreement or any lease in the nature thereof (including
any agreement to give any of the foregoing);
(d) "Permitted Liens" shall mean:
(i) for taxes, assessments or governmental charges or
levies on property of any Debtor if the same shall not
at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith
and by appropriate proceedings;
(ii) imposed by law, such as carriers, warehousemen's and
mechanics' Liens and other similar Liens arising in the
ordinary course of business;
(iii) arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement
benefits, or similar legislation;
(iv) arising from any litigation or proceeding which is
being contested in good faith by appropriate
proceedings, provided, however, that no execution or
levy has been made;
(v) securing the performance of bids, tenders, contracts
(other than for the repayment of borrowed money),
statutory obligations and surety bonds; and.
4. Events of Default. The Debtor shall be in default under this Agreement upon
the happening of any of the following events or conditions (herein called
"Events of Default"):
(a) The occurrence of an Event of Default under any Note (which Event
of Default shall be deemed a default under all Notes);
(b) The Debtor shall fail to perform any of its respective obligations
under this Agreement, including, without limiting the generality of the
foregoing, any covenants under
Section 2 herein, and such failure shall continue beyond five (5) days after
notice of such failure to perform is provided by the Secured Parties to the
Debtor; or
(c) Any representation, warranty or statement made by the Debtor herein
is found to have been false or misleading in any material respect as of the time
when made.
5. Remedies Upon Default. Upon the occurrence of an Event of Default, and at any
time thereafter while such Event of Default remains unremedied and unwaived, any
of the Secured Parties shall notify, in writing, the Debtor of such default.
Upon the receipt by the Debtor of such written notice, the Secured Parties shall
have the following rights and remedies (to the extent permitted by applicable
law), in addition to all rights and remedies of the Secured Parties under the
UCC, at law or in equity, and in addition to all rights and remedies granted to
the Secured Parties under the Note, all such rights and remedies being
cumulative, not exclusive and enforceable alternatively, successively or
concurrently:
(a) Any of the Secured Parties may, at any time and from time to time,
with or without judicial process or the aid and assistance of others, enter upon
the Collateral Location and, without resistance or interference by the Debtor,
take possession of the Collateral, and/or dispose of any Collateral on any such
premises, and/or require any of the Debtor to assemble and make available to the
Secured Parties, at the expense of the Debtor, any Collateral at any place and
time designated by the Secured Parties which is reasonably convenient to all
parties, and/or remove any Collateral from any such premises for the purpose of
effecting sale or other disposition thereof and/or sell, resell, lease, assign
and deliver, grant options for or otherwise dispose of any Collateral in its
then condition or following any commercially reasonable preparation or
processing, at public or private sale or proceedings or otherwise, by one or
more contracts, in one or more parcels, at the same or different times, with or
without having the
Collateral at the place of sale or other disposition, for cash and/or credit,
and upon any terms, at such place(s) and time(s) and to such person(s) as the
Secured Parties deems best, all without demand, notice or advertisement
whatsoever except that, where an applicable statute requires reasonable notice
of sale or other disposition, the Debtor hereby agrees that the sending of five
(5) days' notice by certified mail, return receipt requested, to the Debtor's
address set forth in Xxxxxxx 0, Xxxxxxxxx (x) hereof, or such other address as
the Debtor may provide to the Secured Parties from time to time, shall be deemed
reasonable notice thereof. If any Collateral is sold by the Secured Parties upon
credit or for future delivery, the Secured Parties shall not be liable for the
failure of the purchaser to pay for same and in such event the Secured Parties
may resell such Collateral in accordance with the terms set forth above. The
Secured Parties may buy any Collateral at any public sale and, if any Collateral
is of a type customarily sold in a recognized market or is of the type which is
the subject of widely distributed standard price quotations, the Secured Parties
may buy such Collateral at private sale and in each case may make payment
therefore by any means.
(b) The Secured Parties may apply the cash proceeds actually received
from any sale or other disposition of Collateral to the reasonable expenses of
retaking, holding, preparing for sale, selling, leasing and the like, to
reasonable attorneys' fees and all reasonable legal, travel and other expenses
which may be incurred by the Secured Parties in attempting to collect the
Obligations or enforce this Agreement or in the prosecution or defense of any
action or proceeding related to the subject matter of this Agreement; and then
toward the payment of the Obligations; and the Debtor shall remain liable and
will pay the Secured Parties on demand any deficiency remaining after the
application of such cash proceeds, together with interest thereon at the highest
rate then payable on the Obligations and the balance of any expenses unpaid,
with
any surplus to be paid to the Debtor, subject to any duty of the Secured Parties
imposed by law to the holder of any subordinate security interest in the
Collateral known to the Secured Parties.
(c) The Secured Parties may appropriate, set off and apply to the
payment of the Obligations, any Collateral in or coming into the possession of
the Secured Parties or its agents, without notice to the Debtor and in such
manner as the Secured Parties may, in its reasonable discretion, determine
without regard to the existence or sufficiency of other collateral therefore.
(d) Any of the Secured Parties, acting as permitted above, shall be
acting on behalf of itself as well as the other Secured Parties and shall hold
any sums received from the Debtor on a pro rata basis on behalf of the other
Secured Parties.
6. Power of Attorney. To effectuate the terms and provisions hereof, the Debtor,
so long as an Event of Default has occurred and is continuing, hereby designates
and appoints each of the Secured Parties and the Secured Party's designees or
their agents as attorneys-in-fact of the Debtor, irrevocably and with power of
substitution, each with authority to:
(a) endorse the name of the Debtor on any notes, acceptances, checks,
drafts, money orders, instruments or other evidences of Collateral that may come
into the Secured Party's possession;
(b) sign the name of the Debtor on any invoices, documents, drafts
against and notices to account debtors or obligors of the Debtor, assignments
and requests for verification of accounts;
(c) execute proofs of claim and loss; (iv) execute endorsements,
assignments or other instruments of conveyance or transfer with respect to
instruments which constitute the Collateral;
(d) adjust and compromise any claims under insurance policies or
otherwise;
(e) execute releases;
(f) receive, open and dispose of all mail addressed to the Debtor and
notify the Post Office authorities to change the address for delivery of mail
addressed to the Debtor to such address as the Secured Parties may designate;
and
(g) do all other acts and things necessary or advisable in the sole
discretion of the Secured Parties to carry out and enforce this Agreement or the
Obligations. All acts done under the foregoing authorization are hereby ratified
and approved and neither the Secured Parties nor any designee or an agent
thereof shall be liable for any acts of commission or omission, for any error of
judgment or for any mistake of fact or law; provided, that the Secured Parties
shall not be relieved of liability to the extent its or its agent's or
designee's act, error or mistake constituted gross negligence or willful
misconduct. This power of attorney being coupled with an interest is irrevocable
while any Obligations shall remain unpaid.
7. Care of Collateral. Each of the Secured Parties shall have the duty to
exercise reasonable care in the custody and preservation of any Collateral in
their respective possession, which duty shall be fully satisfied if each such
Secured Party accord such Collateral treatment substantially the same as that
which they accord similar property owned by them, and, with respect to each such
Secured Party's custody and preservation of any of the Collateral in their
possession, the Debtor releases each such Secured Party from, and agree to
indemnify, defend, and hold harmless such Secured Parties with respect to, any
third party claims, causes of actions, and demands at any time arising out of or
with respect to each such Secured Party's custody and/or preservation of the
Collateral at any time in such Secured Party's possession, except that such
release and indemnity shall not be applicable to the extent that any such
claims, causes of actions, or demands have resulted from the respective Secured
Party's gross negligence or willful
misconduct. Each such Secured Party's prior recourse to any Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of the Obligations.
8. Expenses. So long as an Event of Default has occurred and is continuing, upon
demand, the Debtor will pay to the Secured Parties the amount of any and all
reasonable expenses, including the fees and expenses of its counsel and the fees
and expenses of any experts and agents, which the Secured Parties may incur in
connection with (i) the collection of the Obligations, (ii) the administration
of this Agreement, (iii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iv) the
exercise or enforcement of any of the rights of the Secured Parties hereunder,
or (v) the failure of the Debtor to perform or observe any of the provisions
hereof. All amounts payable by the Debtor under this Section shall be due upon
demand and shall be part of the Obligations. The Debtor's obligations under this
Section shall survive the termination of this Agreement and the discharge of the
Debtor's other obligations hereunder.
9. Indemnification.
(a) The Debtor agrees to indemnify, reimburse and hold each Secured
Party and its successors, assigns, employees, officers, directors, agents,
attorneys and servants (collectively, "Indemnities") harmless from and against
any and all liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments and any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) of
whatsoever kind and nature imposed on, asserted against, or incurred by any of
the Indemnitees, in any way relating to or arising out of this Agreement or in
any other way connected with the administration of the transactions contemplated
hereby or the enforcement of any of the terms hereof, or the preservation of any
rights hereunder, or in any way relating to or arising out of the manufacture,
processing, ownership, ordering, purchase, delivery, testing, control, lease,
possession, operation or other disposition or use of the Collateral by the
Indemnitees (including, without limitation, latent or other defects, whether or
not discoverable); provided, that the Debtor shall have no obligation to an
Indemnitee hereunder to the extent that such indemnified liabilities arise from
the gross negligence or willful misconduct of such Indemnitee. Upon written
notice by any Indemnitee of the assertion of such a liability, obligation,
damage, injury, penalty, claim, demand, action, judgment or suit, Debtor shall
assume full responsibility for the defense thereof. If any action, suit or
proceeding arising from any of the foregoing is brought against any Indemnitee,
Debtor shall, if requested by such Indemnitee, defend such action, suit or
proceeding. Each Indemnitee shall, unless any other Indemnitee has made the
request described in the preceding sentence and such request has been complied
with, have the right to employ its own counsel (or internal counsel) to
investigate and control the defense of any matter covered by the indemnity set
forth in this Section, and the fees and expenses of such counsel shall be paid
by the Debtor; provided that, only to the extent no conflict exists between and
among the Indemnitees as reasonably determined by the Indemnitees, the Debtor
shall not be obligated to pay the fees and expenses or more than one counsel for
all Indemnitees as a group with respect to any such matter, action, suit or
proceeding.
(b) Contribution. If and to the extent that the obligations of the
Debtor under this Section are unenforceable for any reason, the Debtor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations that is permissible under applicable law.
(c) Survival. The obligations of the Debtor contained in this Section
shall survive the termination of this Agreement and the discharge of the
Debtor's other obligations hereunder.
10. Waivers. No act, omission or delay by the Secured Parties or course of
dealing between the Secured Parties and the Debtor shall constitute a waiver of
the rights and remedies of the Secured Parties hereunder. No single or partial
waiver by the Secured Parties of any Event of Default or right or remedy which
it may have shall operate as a waiver of any other Event of Default, right or
remedy or of the same Event of Default, right or remedy on a future occasion.
The Debtor hereby waives presentment, notice of dishonor and protest of all
instruments included in or evidencing any Obligations or Collateral, and all
other notices and demands whatsoever (except as expressly provided herein).
11. Governing Law; Jurisdiction; etc. This Agreement shall be governed by and
construed in accordance with the law of the State of New York (without giving
effect to the choice of law or conflict of laws principles thereof). Any legal
action or proceeding with respect to this Agreement may be brought in the courts
of the State of New York, County of Nassau, or of the United States of America
for the Eastern District of New York, and, by execution and delivery of this
Agreement, each of the Debtor hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Debtor hereby knowingly, voluntarily, intentionally and irrevocably
waives, in connection with any such action or proceeding: (i) any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions and
(ii) to the maximum extent not prohibited by law, any right it may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of, under or in connection with this Agreement. The Debtor irrevocably consents
to the service of process of any of the aforementioned courts in any such action
or proceeding by the mailing of copies thereof by registered or certified mail,
postage
prepaid, to it at the address set forth in Section 12 below, or at such other
address as it may provide to the other parties hereto from time to time. Nothing
herein shall affect the right of a Parties hereto to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against a Parties in any other jurisdiction.
12. Notices. Unless otherwise provided herein, all notices, requests, consents
and other communications hereunder shall be in writing, shall be addressed to
the receiving party's address set forth below or to such other address as a
Parties may designate by notice hereunder, and shall be either (i) delivered by
hand, (ii) sent by reputable overnight courier by next day, priority, or (iii)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Debtor:
XxxxxXxxxx.xxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx Xxxx, Chief Executive Officer
With a copy in each case to:
Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If to The Secured Parties:
XXXxxx.xxx, Inc.
X/x Xxxxxx, Xxxx, Xxxxxxx & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx X. Xxxxxxxx
C/o Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Xxx Roc Limited Partnership
C/o Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
With a copy in each case to:
Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving Parties at the address of such Parties set forth above,
(ii) if sent by overnight courier, next day delivery, on the next business day
following the day such notice is delivered to the courier service, or (iii) if
sent by registered or certified mail, return receipt requested, on the fifth
business day following the day such mailing is made.
13. Amendments and Waivers. No provision hereof shall be modified, altered or
limited except by a written instrument expressly referring to this Agreement and
to such provision, and executed by the Debtor and the Secured Parties.
14. Severability. In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in this
Agreement shall be unreasonable or unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
reasonable and enforceable, and as so limited shall remain in full force and
effect. In the event that such court shall deem any such provision, or portion
thereof, wholly unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
15. Benefit of Agreement; Continuing Security Interest. This Agreement and all
Obligations shall be binding upon the administrators, successors and assigns of
the Debtor and shall, together
with the rights and remedies of the Secured Parties hereunder, inure to the
benefit of the Secured Parties, their respective successors, endorsees and
assigns. This Agreement shall create a continuing security interest in the
Collateral which shall remain in full force and effect until payment in full of
the Obligations.
16. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
17. Restoration of Rights. In the event that any of the Secured Parties shall
have instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
therein or in a later proceeding adversely to the Secured Parties, then and in
every such case, the parties hereto shall be restored to their respective former
positions and rights hereunder with respect to the Obligations and the
Collateral, and all rights, remedies and powers of the Secured Parties shall
continued as if no such proceeding had been instituted.
18. Counterparts. This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original and all of which shall together
constitute one and the same agreement.
19. Captions. The captions of the sections of this Agreement have been inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed or caused this
Agreement to be executed as a sealed instrument as of the date first above set
forth.
DEBTOR:
-------
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx Xxx Xxxx
--------------------------------------------------------
Name: Xxxx Xxx Xxxx
Title: Chief Executive Officer and
Chairman of the Board of Directors
SECURED PARTIES:
----------------
XXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------------------
Xxxxxx X. Xxxxxxxx, Chief Executive Officer
XXX ROC LIMITED PARTNERSHIP
By: Xxx Roc Management Corp., G.P.
By: /s/ Xxxxxxx Xxxxxxxxxx by: Xxxxx Xxxxxxx-Xxxxxx, P.O.A.
--------------------------------------------------------
Xxxxxxx Xxxxxxxxxx, President
SCHEDULE "A"
------------
LIST OF COLLATERAL
------------------
PATENT
APPLICATION NUMBER FILING DATE APPLICANTS TITLE
------------------ ----------- ---------- -----
09/588,768 June 6, 2000 Xxxx Xxx Xxxx System and method for
Xxxxxx Xxxxxxx Xxxxxx Xxxx
disseminating
information over a
communication network
according to predefined
consumer profiles
TRADEMARK SERIAL NUMBER XXXX
----------------------- ----
75/950782 VFLASH
Accounts Receivable
Inventory
Equipment
