SECURITY AGREEMENT
SECURITY AGREEMENT dated as of October 17, 2003 (as amended,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Security Agreement") between TALKPOINT COMMUNICATIONS INC., a Delaware
corporation (the "Grantor") and Xxxxxxx X. Xxxxxxx, Esq., XX Xxx 00000, Xxx
Xxxx, Xxx Xxxx 00000 for itself and as collateral agent, (the "Collateral
Agent") on behalf of the Secured Parties (as defined).
Introductory Statement
Pursuant to the Purchase and Subscription Agreement dated as
of October 17, 2003, between Grantor, Moneyline Networks, LLC, and Moneyline
Telerate Holdings, and the other persons whose names appear as signatories to
such agreement (as the same may be amended, supplemented or otherwise modified,
renewed or replaced from time to time, the "Purchase Agreement"), an aggregate
of $325,000 in principal amount of secured convertible notes (collectively, the
"Notes") were issued to the Investors (as defined in the Purchase Agreement).
To provide security for the obligations of the Grantor under
the Notes, the Grantor desires to grant to the Collateral Agent, for its benefit
and for the ratable benefit of each other Secured Party, and to each of the
Secured Parties, a security interest in the Collateral pursuant to the terms
hereof.
Accordingly, the parties hereto agree as follows:
1. Definitions. When used in this Security Agreement:
"Account Debtor" means any Person who is obligated or
indebted to a Grantor with respect to any Account.
"Accounts" means all accounts, as defined in the UCC, now
owned or hereafter acquired by the Grantor, including, without limitation, all
of the Grantor's rights to payment for goods sold or leased or services
performed by the Grantor, whether now in existence or arising from time to time
hereafter, including without limitation, rights evidenced by an account, note,
contract, security agreement, chattel paper, or other evidence of indebtedness
or security, together with (i) all security pledged, assigned, hypothecated or
granted to or held by the Grantor to secure the forgoing, (ii) all guarantees,
endorsements, and indemnifications on, or of, any of the foregoing, (iii) all
powers of attorney for the execution of any indebtedness or security or other
writing in connection therewith, (iv) all books, records, ledger cards and
invoices relating thereto, (v) all evidences of filing of financing statements
and other statements and the registration of other instruments in connection
therewith and amendments thereto, notices to other creditors or secured parties,
and certificates from filing or other registration officers, (vi) all credit
information, reports and memoranda relating thereto and (vii) all other writings
in any way related to the foregoing.
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"Applicable Law" shall mean all provisions of statutes, rules,
regulations and orders of the United States, any state thereof or municipality
therein or of any foreign governmental body or of any regulatory agency
applicable to the Person in question, and all orders and decrees of all courts
and arbitrators in proceedings or actions in which the Person in question is a
party.
"Collateral" means each of the following types or items of
personal property of the Grantor, whether now owned or hereafter acquired,
wherever located: (i) all Accounts, (ii) all Intellectual Property, (iii) all
Deposit Accounts, (iv) all monies now or at any time or times hereafter in the
possession or under the control of the Grantor or the Secured Party, and (v) all
products and Proceeds of the property described in clauses (i) through (iv)
above.
"Copyrights" means any United States or foreign copyrights now
or hereafter owned by the Grantor, including any registrations of any Copyrights
in the United States Copyright Office or the equivalent thereof in any foreign
country and any application for a United States or foreign copyright
registration now or hereafter made by the Grantor with the United States
Copyright Office or the equivalent thereof in any foreign country and any
licenses with respect to any of the foregoing.
"Deposit Account" has the meaning given to such term under
Article 9 of the UCC.
"Event of Default" means the occurrence and continuation of an
Event of Default (as defined in the Notes).
"Governmental Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Intellectual Property" means all Copyrights, Marks and
Patents now owned or hereafter acquired by the Grantor, and all corporate or
other business records, inventions, designs, blueprints, plans, trade names,
trade secrets, goodwill, registrations, service marks, logos, licenses,
franchises and customer lists.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any lease
in the nature of security, and the filing of, or agreement to give, any
financing statement under the UCC or the Uniform Commercial Code or other
Applicable Law of any jurisdiction).
"Marks" means all right, title and interest of the Grantor now
owned or hereafter acquired in and to any United States or foreign trademarks,
service marks, and trade names, including any registration of any trademarks and
service marks in the United States Patent and Trademark Office or the equivalent
thereof in any foreign country, any application for a United States or foreign
trademark now or hereafter made by the Grantor with the United States Patent and
Trademark Office or the equivalent thereof in any foreign country and any trade
dress including logos and/or designs used by the Grantor in the United States or
any foreign country and any licenses with respect to any of the foregoing.
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"Obligations" means all indebtedness, liabilities and other
obligations of the Grantor under the Notes and this Agreement, each whether now
existing or hereafter arising, direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due, acquired outright,
conditionally or as collateral security from another, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, and of all
agreements, documents and instruments evidencing any of the foregoing or under
which any of the foregoing may have been issued, created, assumed or guaranteed.
The term "Obligations" includes, without limitation, the obligations to pay
principal, breakage costs, interest (including, without limitation, interest
accruing after the commencement of any bankruptcy, insolvency, reorganization,
or similar proceedings with regard to the Grantor, whether or not determined to
be an allowed claim in any such proceeding), charges, costs, expenses and fees
including, without limitation, the disbursements and reasonable fees of counsel
to the Collateral Agent (but only to the extent such fees are incurred in
connection with the enforcement or prosecution of rights of the Secured Parties
hereunder or under the Note) and all renewals extensions, restructurings,
refinancings or refundings thereof in a nature of a "workout" or otherwise.
"Patents" means any United States or foreign patent to which
the Grantor now or hereafter have title and any divisions or continuations
thereof, as well as any application for a United States or foreign patent now or
hereafter made by the Grantor and any licenses with respect to any of the
foregoing.
"Person" means any natural person, corporation, division of a
corporation, limited liability company, partnership, trust, joint venture,
association, company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Proceeds" has the meaning given to such term under Article 9
of the UCC and shall include, but not be limited to, (i) any and all proceeds of
any insurance, indemnity, warranty or guaranty with respect to the Collateral,
(ii) any or all payments made or due and payable to the Grantor from time to
time in connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral and (iii) any and all other
amounts paid or payable from time to time under or in connection with the
Collateral.
"Secured Parties" means collectively, the Investors (as
defined in the Purchase Agreement) and the Collateral Agent and, each of their
permitted successors, transferees and assigns.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of New York.
Terms not otherwise defined herein or in the Loan Agreement
shall have, where appropriate, their respective definitions as set forth in the
UCC.
2. Grant of Security Interest. As security for the payment and
performance when due of the Obligations, the Grantor hereby grants to the
Collateral Agent, for its benefit and the ratable benefit of each other Secured
Party, and to each of the Secured Parties, a security interest in, and Lien on,
all of its right, title and interest in and to all of the Collateral.
3. Covenants of the Grantor. The Grantor hereby covenants and
agrees with the Collateral Agent that:
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(a) The Grantor shall not change its legal name or assume or
operate in any jurisdiction under any trade, fictitious or other name (other
than the name "Video Network Communications Inc.") unless (i) it shall have
given the Collateral Agent thirty (30) days' prior written notice of its
intention to do so which clearly describes such new name and the jurisdictions
in which such new name will be used and provides the Collateral Agent with any
other information in connection therewith as the Collateral Agent may reasonably
request and (ii) it shall have taken all actions reasonably requested by the
Collateral Agent to maintain the security interest granted to the Secured
Parties under this Security Agreement fully perfected;
(b) The Grantor shall not change its corporate structure or
its domicile of incorporation by redomiciliation, redomestication or otherwise
unless (i) it shall have given the Collateral Agent thirty (30) days' prior
written notice of its intention to do so which clearly describes such change and
identifies the new jurisdiction and provides the Collateral Agent with any other
information in connection therewith as the Collateral Agent may reasonably
request and (ii) it shall have taken all actions reasonably requested by the
Collateral Agent to maintain the security interest granted to the Collateral
Agent under this Security Agreement fully perfected; and
(c) The Grantor shall not establish any new location for its
chief executive office or the location of its books, records and other documents
relating to or evidencing Accounts or Intellectual Property unless (i) the
Grantor provides the Collateral Agent thirty (30) days prior written prior
written notice of its intention to move to such new location, clearly describing
such new location, and provides the Collateral Agent with any other information
in connection therewith as the Collateral Agent may reasonably request and (ii)
it shall have taken all actions reasonably requested by the Collateral Agent to
maintain the security interest granted to the Collateral Agent under this
Security Agreement fully perfected.
4. The Collateral Agent's Rights Exclusive of an Event of
Default. The Grantor hereby agrees to permit representatives of the Collateral
Agent, upon reasonable notice to the Grantor and during normal business hours,
to access its records in connection with the Collateral at such reasonable times
and as often as may be reasonably requested by the Collateral Agent. The
Collateral Agent, from time to time and at its option, may take any other action
which the Collateral Agent reasonably deems necessary for the maintenance or
preservation of any of the Collateral or its interests or any other Secured
Party's interest therein. The Collateral Agent shall have the right to designate
any officer, employee or attorney to execute, sign, endorse, assign, transfer or
deliver in the name of the Grantor, or in its name or the name of the other
Secured Parties, any documents or certificates necessary to evidence, perfect
and realize upon the security interest granted herein.
5. The Collateral Agent's Rights and Remedies Upon an Event of
Default.
(a) Collections, etc. Upon the occurrence and during the
continuance of an Event of Default, the Collateral Agent may, in its sole
discretion or at the direction of Secured Parties holding at least one-third in
principal amount of the Notes outstanding, in its name as Collateral Agent for
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the benefit of itself and the other Secured Parties, in the name of the Grantor
or otherwise, demand, xxx for, collect or receive any money or property at any
time payable or receivable on account of or in exchange for, or make any
compromise or settlement deemed desirable with respect to the Collateral, but
shall be under no obligation so to do, or the Collateral Agent may extend the
time of payment, arrange for payment in installments, or otherwise modify the
terms of, or release any of the Collateral, without thereby incurring
responsibility to, or discharging or otherwise affecting any liability of the
Grantor. The Collateral Agent will not be required to take any steps to preserve
any rights against prior parties with rights in or to the Collateral. If the
Grantor fails to make any payment or to take any action required hereunder with
respect to the Collateral, the Collateral Agent may make such payments and take
all such actions as the Collateral Agent reasonably deems necessary to protect
the security interests of the Collateral Agent and the other Secured Parties in
the Collateral and/or the value thereof, and the Collateral Agent is hereby
authorized (without limiting the general nature of the authority hereinabove
conferred) to pay, purchase, contest or compromise any Liens which in the
judgment of the Collateral Agent appear to be equal to, prior to or superior to
the security interests of the Collateral Agent or the other Secured Parties in
the Collateral.
(b) Possession, Sale of Collateral, etc. Upon the occurrence
and during the continuance of an Event of Default, in addition to any rights and
remedies the Collateral Agent or the other Secured Parties may have under
Applicable Law, the Collateral Agent and the other Secured Parties shall have
all the rights and remedies available to it under the UCC, whether or not the
UCC applies to the Collateral. The Collateral Agent may take such measures as it
may deem necessary or proper for the care or protection of the Collateral
Agent's and the other Secured Parties' rights and remedies hereunder, including
the right to sell or cause to be sold, whenever the Collateral Agent shall
decide, or at the direction of Secured Parties holding at least one-third in
principal amount of the Notes outstanding, in one or more sales or parcels, at
such prices as the Collateral Agent may deem best, and for cash or on credit or
for future delivery, without assumption of any credit risk, all or any portion
of the Collateral, at any broker's board or at a public or private sale, without
any demand of performance or notice of intention to sell or of the time or place
of sale (except 10 days' written notice to the Grantor of the time and place of
any such sale or sales and such other notices as may be required by Applicable
Law and cannot be waived), and any Person may be the purchaser of all or any
portion of the Collateral so sold and thereafter hold the same absolutely, free
(to the fullest extent permitted by Applicable Law) from any claim or right of
whatever kind, including any equity of redemption, of the Grantor, any such
demand, notice, claim, right or equity being hereby expressly waived and
released to the fullest extent permitted by Applicable Law. At any sale or sales
made pursuant to this Section 5(b), the Collateral Agent or any other Secured
Party may bid for or purchase, free (to the fullest extent permitted by
Applicable Law) from any claim or right of whatever kind, including any equity
of redemption, of the Grantor any such demand, notice, claim, right or equity
being hereby expressly waived and released, any part of or all of the Collateral
offered for sale, and may make any payment on account thereof by using any claim
for moneys then due and payable to the Collateral Agent or such other Secured
Party, as applicable, by the Grantor hereunder as a credit against the purchase
price. Neither the Collateral Agent nor any other Secured Party shall in any
such sale make representations or warranties with respect to the Collateral or
any part thereof, and neither the Collateral Agent nor any other Secured Party
shall be chargeable with any of the obligations or liabilities of the Grantor.
The Grantor hereby agrees (i) that it will indemnify and hold the Collateral
Agent and the other Secured Parties harmless from and against any and all claims
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with respect to the Collateral asserted before the taking control of the
relevant Collateral by the Collateral Agent pursuant to this Section 5(b), or
arising out of any act of, or omission to act on the part of, any Person (other
than the Collateral Agent or any other Secured Party) prior to such taking of
actual possession or control by the Collateral Agent, or arising out of any act
on the part of the Grantor or their respective agents before or after the
commencement of such actual possession or control by the Collateral Agent; and
(ii) the Collateral Agent and the other Secured Parties shall have no liability
or obligation to the Grantor arising out of any such claim except for acts of
willful misconduct or gross negligence or not taken in good faith. In any action
hereunder, the Collateral Agent shall be entitled to the appointment of a
receiver, without notice, to take possession of all or any portion of the
Collateral and to exercise such powers as the court shall confer upon the
receiver. Notwithstanding the foregoing, upon the occurrence and during the
continuation of an Event of Default, the Collateral Agent shall be entitled to
apply, without prior notice to the Grantor, except as may be required by
Applicable Law, any cash or cash items constituting Collateral in the possession
of the Collateral Agent to payment of the Obligations then due and payable. Any
such application by the Collateral Agent shall be made in accordance with
Section 5 (b) of this Agreement.
(c) Notification to Account Debtors. Upon the occurrence and
during the continuance of an Event of Default, the Collateral Agent (i) shall
notify each other Secured Party of such Event of Default and (ii) may notify any
Persons in any way liable on any Accounts to make remittances to the Collateral
Agent of all sums due or to become due thereon and to collect and enforce
payment of all Accounts directly from the Persons liable thereon, by legal
proceedings or otherwise, and generally exercise all of the Grantor's rights and
remedies with respect to collection thereof.
(d) Application of Proceeds. The Grantor further agrees that
the Collateral Agent may apply any proceeds from the disposition of any of the
Collateral (i) first towards payment of any costs, fees and expenses accrued but
unpaid of the Collateral Agent included within the Obligations, (ii) second
towards payment of interest on the Notes, and (iii) third towards payment of
principal of the Notes. In the case of payments made by the Collateral Agent
pursuant to (ii) or (ii) of the preceding sentence, such payments shall be made
ratably to the Collateral Agent and each other Secured Party in proportion to
the principal amount of Notes held by the Collateral Agent and each such Secured
Party.
(e) Power of Attorney. Upon the occurrence and during the
continuance of an Event of Default (i) the Grantor does hereby irrevocably make,
constitute and appoint the Collateral Agent or any of its officers or designees
its true and lawful attorney-in-fact with full power in the name of the
Collateral Agent or such other Person to endorse any notes, checks, drafts,
money orders or other evidences of payment relating to the Collateral that may
come into the possession of the Collateral Agent, and to do any and all other
acts necessary or proper to carry out the intent of this Security Agreement and
the grant of the security interests hereunder, and the Grantor hereby ratifies
and confirms all acts that the Collateral Agent or its substitute shall properly
do by virtue hereof and (ii) the Grantor hereby further irrevocably makes,
constitutes and appoints the Collateral Agent or any of its officers or
designees its true and lawful attorney-in-fact in the name of the Collateral
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Agent, for the Collateral Agent's benefit and for the ratable benefit of each
other Secured Party, or Grantor's name (A) to enforce all of Grantor's rights
under and pursuant to all agreements with respect to the Collateral, all for the
ratable benefit of the Collateral Agent and each other Secured Party, (B) to
enter into and perform such agreements as may be necessary in order to carry out
the terms, covenants and conditions of this Security Agreement that are required
to be observed or performed by Grantor, (C) to execute such other and further
mortgages, pledges and assignments of the Collateral, and related instruments or
agreements, as the Collateral Agent may reasonably require for the purpose of
perfecting, protecting, maintaining or enforcing the security interests granted
to the Collateral Agent and the other Secured Parties, and (D) to do any and all
other things necessary or proper to carry out the intention of this Security
Agreement and the grant of the security interests hereunder and the Grantor
hereby ratifies and confirms in advance all that the Collateral Agent as such
attorney-in-fact or its substitute shall properly do by virtue of this power of
attorney.
6. Financing Statements, etc. The Grantor hereby authorizes
the Collateral Agent to file financing statements and any amendments thereto or
continuations thereof and any other appropriate security documents or
instruments, and to give any notices reasonably necessary or desirable to
perfect the Lien and security interests of the Collateral Agent and the other
Secured Parties in the Collateral.
7. Further Assurances.
(a) The Grantor agrees that it will from time to time, on
request of the Collateral Agent and at its own cost and expense: (i) duly and
promptly execute and deliver, or cause to be duly executed and delivered, any
and all further instruments as may be appropriate in the reasonable judgment of
the Collateral Agent to carry out the provisions and purposes of this Security
Agreement, including, without limitation, a copyright security agreement, a
patent and trademark security agreement and account control agreements; (ii)
duly and promptly execute and deliver, or cause to be executed and delivered,
such further instruments as may be appropriate in the reasonable judgment of the
Collateral Agent, to provide the Collateral Agent and the other Secured Parties
with a perfected Lien in the Collateral and any and all documents (including,
without limitation, the execution, amendment or supplementation of any financing
statement and continuation statement or other statement) for filing under the
provisions of the Uniform Commercial Code of any jurisdiction and the rules and
regulations thereunder, or any Applicable Law of the United States or any other
jurisdiction which the Collateral Agent may deem reasonably necessary or
advisable, and perform or cause to be performed such other ministerial acts
which are necessary or advisable, from time to time, in order to grant and
maintain in favor of the Collateral Agent and the other Secured Parties the Lien
and security interest in the Collateral contemplated hereunder; and (iii)
promptly undertake to deliver or cause to be delivered to the Collateral Agent
from time to time, such other documentation, consents, authorizations and
approvals in form and substance reasonably satisfactory to the Collateral Agent,
as the Collateral Agent shall deem reasonably necessary or advisable to perfect
or maintain the Liens of the Collateral Agent or any other Secured Party.
(b) The Grantor hereby agrees to pay any and all stamp,
registration, recordation and similar taxes, fees or charges, reasonable fees
and expenses of the Collateral Agent's counsel and of any agents therefor and to
indemnify the Collateral Agent and each other Secured Party and each of their
agents against any and all liabilities with respect to or resulting from any
delay in the payment or omission to pay any such taxes, fees or charges, which
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may be payable or determined to be payable in connection with the execution,
delivery, performance or enforcement of this Security Agreement and any other
document or instrument executed in connection herewith or the perfection of any
rights or security interests hereunder.
8. Notices. If any notification of intended disposition of any
of the Collateral or of any other act by the Collateral Agent is required by law
and a specific time period is not stated therein or herein, such notification
given at least ten (10) days before such disposition or act shall be deemed
reasonably and properly given. Notices and other communications provided for
herein shall be in the manner and at the addresses set forth in, and otherwise
in accordance with the Purchase Agreement.
9. Non-Waiver of Rights and Remedies. No delay or failure on
the part of the Collateral Agent or any other Secured Party in the exercise of
any right or remedy shall operate as a waiver thereof, no single or partial
exercise by the Collateral Agent or any other Secured Party of any right or
remedy shall preclude other or further exercises thereof or the exercise of any
other right or remedy and no course of dealing between the parties shall operate
as a waiver of any right or remedy of the Collateral Agent or any other Secured
Party. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
10. Termination. The security interests granted hereunder
shall terminate when all the Obligations under each of the Notes have been fully
and indefeasibly paid and performed. At such time and upon request by the
Grantor, and at the sole expense of the Grantor, the Collateral Agent and any
other Secured Party, if necessary, shall take all reasonable action and do all
things reasonably necessary, including executing UCC termination statements, to
terminate the security interest granted to it or to any other Secured Party
hereunder (without representation or warranty by the Collateral Agent or any
other Secured Party of any nature whatsoever and wholly without recourse to the
Collateral Agent or any other Secured Party).
11. Governing Law. This Security Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York applicable to contracts to be fully performed within the State of New York.
12. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, THE GRANTOR HEREBY WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS SECURITY AGREEMENT
OR THE SUBJECT MATTER HEREOF OR ANY OTHER CREDIT DOCUMENT, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE.
THE GRANTOR ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE COLLATERAL AGENT AND
EACH OTHER SECURED PARTY THAT THE PROVISIONS OF THIS SECTION 12 CONSTITUTE A
MATERIAL INDUCEMENT UPON WHICH THE COLLATERAL AGENT AND EACH OTHER SECURED PARTY
HAS RELIED, IS RELYING AND WILL RELY IN ENTERING INTO THIS SECURITY AGREEMENT
AND THE OTHER CREDIT DOCUMENTS. THE COLLATERAL AGENT AND EACH OTHER SECURED
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PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT
AS WRITTEN EVIDENCE OF THE CONSENT OF THE GRANTOR TO THE WAIVER OF THEIR RIGHTS
TO TRIAL BY JURY.
13. SERVICE OF PROCESS. THE GRANTOR HEREBY IRREVOCABLY SUBMITS
ITSELF TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF NEW YORK IN NEW
YORK COUNTY AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK, FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF OR BASED UPON THIS SECURITY AGREEMENT OR THE SUBJECT
MATTER HEREOF BROUGHT BY THE COLLATERAL AGENT OR ANY OTHER SECURED PARTY OR ANY
OF EACH OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS. THE GRANTOR, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, (A) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY
OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING,
ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE
ABOVE-NAMED COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR
EXECUTION, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS
SECURITY AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY
SUCH COURT, AND (B) HEREBY WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT
OR PROCEEDING ANY OFFSETS OR COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE
COMPULSORY. THE GRANTOR HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT THE
ADDRESS TO WHICH NOTICES ARE TO BE GIVEN PURSUANT TO SECTION 8 HEREOF. THE
GRANTOR AGREES THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF
PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE COLLATERAL AGENT, FOR
ITSELF AND THE RATABLE BENEFIT OF EACH OTHER SECURED PARTY, AND FOR THE EXPRESS
BENEFIT OF EACH OTHER SECURED PARTY. FINAL JUDGMENT AGAINST A GRANTOR IN ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE ENFORCED IN ANY
OTHER JURISDICTION (A) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A
CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF
THE AMOUNT OF INDEBTEDNESS OR LIABILITY OF THE GRANTOR THEREIN DESCRIBED OR (B)
IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE COLLATERAL AGENT OR ANY OTHER SECURED
PARTY MAY AT ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS
AGAINST ANY GRANTOR OR ANY OF ITS ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX
XXXXXX XXXXXX OR OF ANY COUNTRY OR PLACE WHERE THE GRANTOR OR SUCH ASSETS MAY BE
FOUND.
14. Severability. This Security Agreement shall be interpreted
in such manner as to be effective and valid under Applicable Law, but if any
provision of this Security Agreement shall be prohibited by or invalidated under
Applicable Law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
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or the remaining provisions of this Security Agreement and the parties hereto
agree to negotiate in good faith a provision to replace the ineffective
provision, such provision to be as similar in effect and intent to the
ineffective provision as permissible.
15. Continuation and Reinstatement. This Security Agreement
shall remain in full force and effect and continue to be effective in the event
any petition is filed by or against any of the Grantor for liquidation or
reorganization, or in the event any of the Grantor becomes insolvent or makes an
assignment for the benefit of creditors or in the event a receiver or trustee is
appointed for all or any significant part of a Grantor's assets, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment and performance of the Obligations, or any part thereof, is, pursuant to
Applicable Law, rescinded or reduced in amount, or must otherwise be restored or
returned by the Collateral Agent or any other Secured Party, whether as a
"voidable preference," "fraudulent conveyance," or otherwise, all as though such
payment or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Obligations shall
be reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
16. Amendment. No amendment, modification or waiver of any
provision of this Security Agreement or consent to any departure herefrom shall
be effective, irrespective of any course of dealing, unless the same shall be in
writing and signed by the Collateral Agent and by each other Secured Party
effected by such amendment, modification or waiver.
17. Successors and Assigns. All references herein to any of
the parties to this Security Agreement shall be deemed to include the successors
and assigns of such party; provided, however, that the Grantor may not assign
any of their rights or obligations hereunder without the prior written consent
of the Collateral Agent and Secured Parties holding a majority in principal
amount of the Notes, and all covenants, promises and agreements by or on behalf
of the Grantor which are contained herein shall inure to the benefit of the
successors and assigns of the Collateral Agent, as itself and for the ratable
benefit of each other Secured Party, and to the successors and assigns of each
other Secured Party.
18. Remedies Not Exclusive. The remedies conferred upon or
reserved to the Collateral Agent or any other Secured Party in this Security
Agreement are intended to be in addition to, and not in limitation of, any other
remedy or remedies available to the Collateral Agent or any other Secured Party.
Without limiting the generality of the foregoing, the Collateral Agent and each
other Secured Party shall have all rights and remedies of a secured party under
Article 9 of the UCC, the Uniform Commercial Code in effect in any jurisdiction
or any other Applicable Law.
19. Counterparts. This Security Agreement may be executed in
any number of counterparts, each of which when so executed and delivered shall
constitute an original for all purposes, but all such counterparts taken
together shall constitute the same instrument.
20. Collateral Agent.
(a) The powers conferred on the Collateral Agent hereunder are
solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it (or them) to exercise any such
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powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Collateral Agent
shall have no duty as to any Collateral or responsibility for (i) ascertaining
or taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any investment property, whether or not the
Collateral Agent has or is deemed to have knowledge of such matters, or (ii)
taking any necessary steps to preserve rights against prior parties or any other
rights pertaining to any Collateral.
(b) The Collateral Agent is required to exercise reasonable care in the
custody and preservation of any of the Collateral in its possession; provided,
however, that the Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any of the Collateral, if it takes such
action for that purpose as Secured Parties holding a majority in principal
amount of the Notes reasonably request in writing, but failure of the Collateral
Agent to comply with any such request shall not in itself be deemed a failure to
exercise reasonable care.
IN WITNESS WHEREOF, each of the Grantor, the Collateral Agent and the
Secured Parties have caused this Security Agreement to be duly executed as of
the day and year first above written.
GRANTOR:
TALKPOINT COMMUNICATIONS INC.
By: /s/ Xxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive Officer
COLLATERAL AGENT: on behalf of himself and the other
Secured Parties.
/s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
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