EXHIBIT 10.12
AMENDED AND RESTATED
SECURITY AGREEMENT
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THIS AMENDED AND RESTATED SECURITY AGREEMENT ("Agreement"), (replacing in
its entirety the Security Agreement dated July 24, 2001), is executed made
effective on September 21, 2001, by and between XXXXXXX X. XXXXXX, an individual
("Xxxxxx"), and EMB Corporation, a Hawaii corporation ("EMB"). Capitalized terms
not otherwise defined in this Agreement shall have the meanings ascribed to them
in the Note (as hereinafter defined).
WHEREAS, EMB entered into a Purchase Agreement with Xxxxxx on July 23, 2001
and an Amended and Restated Purchase Agreement on September 21, 2001, (the
"Purchase Agreement"), for the acquisition by EMB from Xxxxxx of all of the
common stock of Saddleback Investment Services, Inc. ("Saddleback"); and
WHEREAS, in connection with such Purchase Agreement, EMB has executed a
Secured Promissory Note of even date herewith in favor of Xxxxxx in the
principal amount of One Hundred Thousand Dollars ($100,000.00) (the "Note"), the
terms of which are incorporated herein by reference and made a part hereof; and
WHEREAS, to secure payment and performance of EMB's duties and obligations
under the Note, EMB has agreed to xxxxx Xxxxxx a continuing security interest in
the 10,000 shares of common stock of Saddleback and the 100,000 shares of Series
A Convertible Preferred Stock of Saddleback that were acquired by the Company
pursuant to the Purchase Agreement, subject to the terms and conditions set
forth herein and in the Note;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, EMB and Xxxxxx,
intending to be legally bound hereby, agree as follows:
1. Security Interest.
(a) To secure payment and performance of EMB's "Obligations" (as
hereinafter defined) under the Note, EMB hereby pledges, assigns, transfers and
grants to Xxxxxx a continuing security interest in the following: Ten thousand
(10,000) shares of common stock of Saddleback and one hundred thousand (100,000)
shares of Series A convertible preferred stock of Saddleback, together with the
dividends, rights, options, issues, products, proceeds and profits therefrom
(collectively, the "Collateral Shares"). The interest of Xxxxxx in the
Collateral Shares is a first priority lien and security interest in and to the
Collateral Shares. In addition to a stock certificate representing the
Collateral Shares, EMB shall deliver to the Collateral Agent EMB's undated
assignment separate from such certificate executed in blank, together with such
other assignments, agreements, instruments and documents (collectively, the
"Assignment Documentation") as Xxxxxx from time to time may reasonably require
and as may be necessary or expedient to facilitate the transfer thereof. The
Collateral Shares and the Assignment Documentation shall be held and distributed
by the Collateral Agent in accordance with the terms and conditions of the Note
and this Agreement; and
(b) The Collateral Shares referenced by Subparagraph (a)(i) of this
Section, shall hereinafter also be referred to as the "Collateral".
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(c) EMB expressly understands and agrees that the security interest
granted to Xxxxxx hereunder shall remain as security for payment and performance
of EMB's Obligations, whether now existing or that may hereafter be incurred by
future advances or otherwise. Notice of the continuing grant of these security
interests shall, therefore, not be required to be stated on the face of any
document representing any such Obligations, nor otherwise identify such document
as being secured hereby.
2. Definitions. The following terms shall have the following meanings:
(a) "Loan Documents" means this Agreement, and any and all agreements,
notes, guaranties, instruments, security agreements, mortgages, assignments, and
documents evidencing, governing, securing or relating in any way to any of the
Obligations, including without limitation, that certain Note in the original
principal amount of $100,000.00 from EMB in favor of Xxxxxx of even date
herewith and that certain Form UCC-1 Financing Statement executed by the parties
of even date herewith; and
(b) "Obligations" means any and all indebtedness, obligations,
liabilities, contracts, indentures, agreements, warranties, covenants,
guaranties, representations, provisions, terms and conditions of whatever kind
with regard to the Loan Documents, whether due or to become due, absolute or
contingent, now existing or hereafter incurred or arising, whether or not
otherwise guaranteed or secured and whether evidenced by any note or draft or
documented on the books and records of Xxxxxx or otherwise on open account,
including without limitation, all costs, expenses, fees, charges and attorneys'
and other professional fees incurred by Xxxxxx in connection with, involving or
related to the administration, protection, modification, collection,
enforcement, preservation or defense of any of Xxxxxx'x rights with respect to
any of the Obligations, the Collateral or any agreement, instrument or document
evidencing, governing, securing or relating to any of the foregoing, including
without limitation, all costs and expenses incurred in inspecting or surveying
mortgaged real estate, if any, or conducting environmental studies or tests, and
in connection with any "workout" or default resolution negotiations involving
legal counsel or other professionals and any renegotiation or restructuring of
any of the Obligations.
3. EMB's Representations and Warranties. EMB makes the following
representations and warranties hereunder and upon which Xxxxxx relies:
(a) Authority. EMB has full power and authority to enter into and
perform the Obligations under this Agreement, to execute and deliver the Loan
Documents and to incur the obligations provided for herein and therein, all of
which have been duly authorized by all necessary and proper corporate action. No
other consent or approval or the taking of any other action is required as a
condition to the validity or enforceability of this Agreement or any of the
other Loan Documents.
(b) Binding Agreements. This Agreement and the other Loan Documents
constitute the valid and legally binding obligations of EMB, enforceable in
accordance with their respective terms, except as enforcement may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally.
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(c) No Conflicting Law or Agreements. The execution, delivery and
performance by EMB of this Agreement and the other Loan Documents: (i) do not
violate any provision of the bylaws of EMB, (ii) do not violate any order,
decree or judgment, or any provision of any statute, rule or regulation, (iii)
do not violate or conflict with, result in a breach of or constitute (with
notice or lapse of time, or both) a default under any mortgage, indenture,
contract or other agreement to which EMB is a party, or by which any of EMB's
properties are bound, or (iv) except for the lien granted to Xxxxxx hereunder,
do not result in the creation or imposition of any lien, charge or encumbrance
of any nature whatsoever upon any property or assets of EMB.
(d) Collateral. EMB is and shall continue to be the sole owner of the
Collateral free and clear of all liens, encumbrances, security interests and
claims, except for the liens granted to Xxxxxx hereunder. EMB is fully
authorized to sell, transfer, pledge and/or grant a security interest in the
Collateral to Xxxxxx. All documents and agreements related to the Collateral
shall be true and correct and in all respects what they purport to be; all
signatures and endorsements that appear thereon shall be genuine and all
signatories and endorsers shall have full capacity to contract. None of the
transactions underlying or giving rise to the Collateral shall violate any
applicable state or federal laws or regulations. All documents relating to the
Collateral shall be legally sufficient under such laws or regulations and shall
be legally enforceable in accordance with their terms. EMB agrees to defend the
Collateral against the claims of all persons other than Xxxxxx, except as
expressly reserved or otherwise provided herein.
4. Covenants of EMB. EMB covenants and agrees that from the date hereof
until full and final payment and performance of all Obligations EMB shall:
(a) Financial Information. Deliver to Xxxxxx promptly upon Xxxxxx'x
request, such documentation and information about EMB's financial condition,
business and/or operations as Xxxxxx may, at any time and from time to time,
reasonably request, including without limitation, monthly unaudited interim,
quarterly unaudited interim and annual audited or unaudited financial
statements, and such other records and documentation as shall reasonably related
to Xxxxxx'x interest as a secured creditor of EMB under the terms of the Note.
(b) Litigation. Promptly advise Xxxxxx of the commencement or threat
of litigation, including arbitration proceedings and any proceedings before any
governmental agency, or any other legal action (collectively, "Litigation"),
which is instituted against EMB in connection with the Collateral or which might
jeopardize the first lien of Xxxxxx as against the Collateral.
(c) Maintenance of Existence. Maintain its corporate existence, and
comply with all valid and applicable statutes, rules and regulations, and
maintain its properties in good repair, working order and operating condition.
EMB shall immediately notify Xxxxxx of any event causing material loss in the
value of its assets.
(d) Collateral Duties. Do whatever Xxxxxx may reasonably request from
time to time by way of obtaining, executing, delivering and filing financing
statements, assignments, landlord's or mortgagee's waivers, and other notices
and amendments and renewals thereof, and EMB will take any and all steps and
observe such formalities as Xxxxxx may reasonably request in order to create and
maintain a valid and enforceable first lien upon, pledge of, and first priority
security interest in, any and all of the Collateral. Xxxxxx is authorized to
file financing statements without the signature of EMB and to execute and file
such financing statements on behalf of EMB as specified by the UCC to perfect or
maintain Xxxxxx'x security interest in all of the Collateral.
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(e) Notice of Default. Provide to Xxxxxx, not later than five (5)
business days after becoming aware of the occurrence or existence of an Event of
Default (as defined in the Note) or a condition which would constitute an Event
of Default but for the giving of notice or passage of time on both, notice in
writing of such Event of Default or condition.
(f) Maintenance of Current Public Information. EMB agrees to use its
best efforts to make available "adequate current public information" concerning
itself within the meaning of Rule 144(c) promulgated under the Securities Act of
1933, as amended. Notwithstanding anything herein to the contrary, this covenant
shall continue until the 15th month after the payment in full of the Obligations
and shall survive the termination of this Agreement.
5. Additional Rights of Xxxxxx.
(a) Upon the occurrence of an Event of Default as defined in the Note,
EMB hereby constitutes and appoints Xxxxxx (with full power of substitution) its
true and lawful attorney and agent in fact to take any or all of the actions
described below in Xxxxxx'x or EMB's name and at EMB's expense, and EMB hereby
ratifies and confirms all actions so taken:
(i) Evidence of Liens. Xxxxxx may execute such financing
statements and other documents and take such other actions as Parker deems
reasonably necessary or proper in order to create, perfect or continue the
security interest and other liens provided for by this Security Agreement, and
Xxxxxx may file the same (or a photocopy of this Security Agreement or of any
financing statement signed by EMB) in any appropriate governmental office.
(ii) Preservation of Collateral. Xxxxxx may take any and all
action that Parker deems reasonably necessary or proper to preserve his interest
in the Collateral, including, without limitation, the payment of debts of EMB,
which, if unpaid, might materially impair the Collateral or Xxxxxx'x security
interest therein; or the payment of taxes, assessments or other liens thereon.
All sums so expended by Xxxxxx shall be added to the Obligations, shall be
secured by the Collateral, and shall be payable thirty (30) days following
Xxxxxx'x written demand.
(iii) Xxxxxx'x Right to Cure. In the event EMB fails to perform
any of its obligations, then Xxxxxx may perform the same but shall not be
obligated to do so. All sums so expended by Xxxxxx shall be added to the
Obligations, shall be secured by the Collateral, and shall be payable thirty
(30) days following Xxxxxx'x written demand.
(b) EMB covenants and agrees that the power of attorney granted by the
foregoing subsection (a) is coupled with an interest and shall be irrevocable so
long as this Security Agreement is in force; that said powers are granted solely
for the protection of Xxxxxx'x interest and that Xxxxxx shall have no duty to
exercise any thereof; that the decision whether to exercise any of such powers,
and the manner of exercise, shall be solely within Xxxxxx'x reasonable
discretion.
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6. Remedies of Xxxxxx in Respect of the Collateral Shares.
(a) Upon the occurrence of any Event of Default (as defined in the
Note), Xxxxxx shall have the right, following expiration of any time period
during which EMB may have the right to cure such default, to declare all of the
Obligations to be immediately due and payable and shall then, in respect of the
Collateral Shares, have the rights and remedies of a secured party under the
Uniform Commercial Code or under any other applicable law, including, without
limitation to take possession of the Collateral Shares. Following an Event of
Default, Xxxxxx shall have the right, following expiration of any time period
during which EMB may have the right to cure such default, to immediately make
written demand upon the Collateral Agent to deliver the Collateral Shares and
the Assignment Documentation to Xxxxxx. Not later than five (5) days after the
Collateral Agent's receipt of such written demand, the Collateral Agent shall
make delivery, in accordance with Xxxxxx'x demand, of the certificate
representing the Collateral Shares together with the Assignment Documentation in
blank or completed as Xxxxxx shall have specified unless, prior to the end of
such five (5) day period, EMB shall have given written notice to the Collateral
Agent and to Xxxxxx in good faith disputing the occurrence of the Event of
Default and directing the Collateral Agent to withhold the delivery of the
Collateral Shares and the Assignment Documentation. Upon receipt of such written
notice from EMB, the Collateral Agent shall not deliver the Collateral Shares
and the Assignment Documentation to any person other than into court until the
controversy shall have been settled either by an agreement or by a final
judgment of a court of competent jurisdiction. Each party shall be entitled to
reimbursement by the other of its reasonable attorneys fees and costs and other
reasonable expenses incurred in the event that a court of competent jurisdiction
shall determine in its favor (that is, as to Xxxxxx, that an Event of Default
shall have occurred following EMB's dispute of same; and that is, as to EMB,
that an Event of Default shall not have occurred), notwithstanding a party's
good faith in asserting the existence of an Event of Default (in the case of
Xxxxxx) or the absence thereof (in the case of EMB).
(b) Upon the delivery to Xxxxxx of the Collateral Shares and the
Assignment Documentation pursuant to Section 6(a) above, Xxxxxx may date any of
the Assignment Documents and participate as the owner of the Collateral Shares
in the election of directors and may exercise such other rights as a stockholder
of Saddleback as he may, in his sole and absolute discretion, see fit. In
addition to the foregoing remedies, Xxxxxx may be the purchaser of any or all of
the Collateral Shares sold at any public or private sale and thereafter hold the
same, absolutely, free and clear of and from any and all claims or rights of any
kind whatsoever. EMB hereby acknowledges and agrees that ten days' notice shall
be deemed commercially reasonable notice with respect to the time and place of
any public sale or the time after which any private sale or any other intended
disposition of the Collateral Shares is to be made, and, in the case of any
notice to EMB of a private sale, such notice shall advise EMB of the terms and
conditions of the sale as are then known to Xxxxxx. Recognizing the possibility
that there may be no adequate market for the Collateral Shares or that the sale
of the Collateral Shares may require registration under the Securities Act of
1933 or qualification under other state or federal laws relating to securities,
EMB specifically authorizes a private sale of all or any of the Collateral
Shares without attempts by Xxxxxx to approach more than one possible purchaser.
(c) The proceeds of any sale of any of the Collateral Shares shall be
applied to expenses, including, without limitation, attorney's fees to the
fullest extent allowable by law, reasonably incurred in connection with such
sales, the collection of the Note, and the prosecution or defense of any
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proceeding related thereto, and then to the payment or satisfaction of the Note.
In the event the proceeds of any sale or other disposition of the Collateral
hereunder, are insufficient to pay all of the Obligations in full, EMB will be
liable for the deficiency, together with interest thereon, at the maximum rate
allowable by law, and the costs and expenses of collection of such deficiency,
including (to the extent permitted by law) without limitation, attorney's fees,
expenses and disbursements. From and after the occurrence of an Event of
Default, and the expiration of any time period during which EMB may have the
right to cure such default, and unless and until the Note has been fully paid
and satisfied, Xxxxxx shall be entitled to act with respect to the Collateral
Shares in all matters or events, and to exercise all rights and privileges, to
the maximum extent permitted by law, as an absolute owner of the Collateral
Shares and to hold all proceeds from the sale thereof as part of the Collateral
hereunder.
7. Costs and Expenses. Upon the occurrence of an Event of Default as
defined in the Note, EMB agrees to pay on demand all of Xxxxxx'x reasonable
expenses in collecting, enforcing, safeguarding, holding and disposing of
Collateral, and all other losses, costs and expenses incurred by Xxxxxx in
connection with the enforcement of this Security Agreement, the Note or the Loan
Documents, or in connection with legal advice relating to the rights or
responsibilities of Xxxxxx under any thereof (including in each case, without
limitation, the reasonable fees and out-of-pocket expenses of attorneys,
accountants and appraisers).
With respect to any amount advanced by Xxxxxx and required to be reimbursed
by EMB pursuant to any provision of this Security Agreement, EMB shall also pay
Xxxxxx interest on such amount at the rate from time to time applicable to
overdue principal of the Note from the date on which EMB receives written notice
of the expenditure to the date of reimbursement. EMB's obligations under this
Section 7 shall survive payment of the Note and the other Obligations.
8. Waivers; Etc. EMB hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with this Agreement or the
enforcement of Xxxxxx'x rights hereunder or in connection with any Obligations
or any Collateral; and consents to and waives notice of: (a) the granting of
renewals, extensions of time for payment or other indulgences to EMB or to any
account debtor in respect of any account receivable of EMB; (b) substitution,
release or surrender of any Collateral; (c) the addition or release of persons
primarily or secondarily liable on any of the Obligations or on any account
receivable or other Collateral; and (d) the acceptance of partial payments on
any Obligations or on any account receivable or other Collateral and/or the
settlement or compromise thereof. No delay or omission on the part of Xxxxxx in
exercising any right hereunder shall operate as a waiver of such right or of any
other right hereunder. Any waiver of any such right on any one occasion shall
not be construed as a bar to or waiver of any such right on any such future
occasion. EMB'S WAIVERS UNDER THIS SECTION HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY, KNOWINGLY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION
OF THE RAMIFICATIONS THEREOF.
9. Termination; Assignment; Etc. This Agreement and the security interest
in the Collateral created hereby shall terminate when all of the Obligations
have been paid and finally discharged in full. No waiver by Xxxxxx or by any
other holder of the Obligations of any default shall be effective unless in
writing signed by Xxxxxx nor shall any waiver granted on any one occasion
operate as a waiver of any other default or of the same default on a future
occasion. In the event of a sale or assignment by Xxxxxx of all or any of the
Obligations held by Xxxxxx, Xxxxxx may not assign or transfer its respective
rights and interests under this Agreement in whole or in part to the purchaser
or purchasers of such Obligations; accordingly, such purchaser or purchasers
shall become vested with all of the powers and rights hereunder Further, no sale
or assignment shall act to release or discharge, in whole or in part, Xxxxxx
from any liability or responsibility hereunder with respect to the rights and
interests so assigned.
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10. Miscellaneous.
(a) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon Xxxxxx and EMB and their respective successors and
assigns.
(b) Changes. Changes in or additions to this Agreement may be made or
compliance with any term, covenant, agreement, condition or provision set forth
herein may be omitted or waived (either generally or in a particular instance
and either retroactively or prospectively), only upon written consent of EMB and
Xxxxxx.
(c) Notices. All notices, requests, consents and demands shall be made
in writing and shall be delivered by facsimile to the fax number set forth below
or by hand, sent via a reputable overnight courier service or mailed by first
class certified or registered mail, return receipt requested, postage prepaid to
EMB;
If to EMB:
EMB Corporation
0000 Xxxxxx Xxxxxx
Xxxxx X
Attention: Chief Executive Officer
(Fax Number: 000-000-0000)
With a copy to:
(which shall not constitute notice)
Xxxxx Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esquire
(Fax Number: 000-000-0000)
If to Xxxxxx:
Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
(d) Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of California notwithstanding any conflict-of-laws doctrines of such
state or other jurisdictions to the contrary, and without the aid of any canon,
custom or rule of law requiring constructions against the draftsman. The parties
agree to submit to the jurisdiction and venue of the state and federal courts of
Orange County, California, for the purposes of resolving disputes hereunder. and
authorize any such action to be instituted and prosecuted exclusively in the
Superior Court of the State of California or, if appropriate, the United States
District Court for the Central District of California.
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(e) Breach. EMB agrees to pay all costs of enforcement, including
reasonable attorney's fees and legal expenses incurred by Xxxxxx in the event
that EMB fails to comply with or otherwise breaches this Agreement.
(f) Severability. If any provision of this Agreement is held invalid
or unenforceable, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions of this Agreement, all of
which are declared severable.
(g) Headings. The headings used in this Agreement are solely for
convenience of reference and shall not affect its interpretation.
(h) Words and Phrases. Words and phrases such as "to this Agreement,"
"herein," "hereinafter," "hereto," "hereof," "hereby," and "hereunder," when
used with reference to this Agreement, refer to this Agreement as a whole,
unless the context otherwise requires.
(i) Gender and Number. Wherever from the context of this Agreement it
appears appropriate, each term stated in either the singular or the plural shall
include the singular or the plural, and pronouns sated in either the masculine,
feminine or neuter gender, shall include the masculine, feminine and neuter.
(j) Conflict. In the event of any conflict between the terms of any of
the Loan Documents, including, but not limited to, this Agreement and the Note,
the terms of the Note shall control.
(k) Entire Understanding. Except as expressly reserved or otherwise
provided herein, this Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof.
(l) Jury Waiver. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY COURT
IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART
AND/OR THE ENFORCEMENT OF ANY OF THE PARTIES' RESPECTIVE RIGHTS AND REMEDIES,
INCLUDING WITHOUT LIMITATION, TORT CLAIMS. THE PARTIES ACKNOWLEDGE THAT EACH
MADE THIS WAIVER VOLUNTARILY, INTELLIGENTLY, KNOWINGLY, WITHOUT DURESS AND ONLY
AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS THEREOF.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, including separate counterparts, all of which when taken together,
shall constitute one instrument.
[SIGNATURES ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
EMB CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
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