SECURITY AGREEMENT
SECURITY
AGREEMENT, effective as of November 29, 2006, is by and among Bio Solutions
Manufacturing, Inc., a New York corporation (the “Company” or “BSLM”), Bio
Solutions Production, Inc., a Nevada corporation (“BSP”), Bio Extraction
Services, Inc., a New York corporation (“BESI”, and together with BSP, the
“Guarantors,” and together with BSLM, the “Obligors”) and the parties set forth
on the signature page hereto and their endorsees, transferees, and assigns
(the
“Secured Parties”).
W I T N E S S E T H
WHEREAS,
pursuant to the Loan Agreement dated the date hereof between BSLM and the
Secured Parties, (i) the Secured Parties have agreed to amend and restate
certain obligations relating to advances previously made by Secured Parties
on
behalf of BSLM (the “Amended Notes”) and (ii) the Secured Parties have agreed
from time to time to loan to BSLM certain principal amounts (collectively,
the
“Loans”), which shall be evidenced by a secured convertible promissory note (the
“Note”, together with the Amended Notes, the “Notes”). The principal amount
outstanding and interest payable under the Notes is convertible into shares
of
BSLM’s common stock, $0.001 par value (the “Common Stock”). In connection with
the transactions contemplated by the Loan Agreement, BSLM and the Secured
Parties have entered into the Loan Agreement, dated the date hereof (the “Loan
Agreement”); and
WHEREAS,
the Guarantors have jointly and severally and absolutely and unconditionally
guaranteeing the full and punctual payment and performance of all of the
obligations of BSLM to the Secured Parties pursuant to that certain Guaranty
Agreement dated as of even date herewith (the “Guaranty”); and
WHEREAS,
in order to induce the Secured Parties to enter into the Loan Agreement make
the
Loan to BSLM, the Obligors have agreed to execute and deliver to the Secured
Parties this Agreement for the benefit of the Secured Parties and to grant
to
them a first priority security interest in certain property of the Obligors
to
secure the prompt payment, performance, and discharge in full of the Obligors
obligations under the Transaction Documents (as defined below).
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the meanings set forth in
this
Section 1. Terms used but not otherwise defined in this Agreement that are
defined in Article 9 of the UCC (such as “general intangibles” and “proceeds”)
shall have the respective meanings given such terms in Article 9 of the
UCC.
(a) “Collateral”
means the collateral in which the Secured Parties are granted a security
interest by this Agreement and which shall include the following, whether
presently owned or existing or hereafter acquired or coming into existence,
and
all additions and accessions thereto and all substitutions and replacements
thereof, and all proceeds, products and accounts thereof, including, without
limitation, all proceeds from the sale or transfer of the Collateral and of
insurance covering the same and of any tort claims in connection
therewith:
(i) All
Goods
of the Obligors, including, without limitations, all machinery, equipment,
computers, motor vehicles, trucks, tanks, boats, ships, furniture, special
and
general tools, fixtures, test and quality devices and other equipment of every
kind and nature and wherever situated, together with all documents of title
and
documents representing the same, all additions and accessions thereto,
replacements therefor, all parts therefor, and all substitutes for any of the
foregoing and all other items used and useful in connection with the Obligors’
businesses and all improvements thereto (collectively, the “Equipment”);
and
(ii) All
Inventory of the Obligors; and
(iii) All
of
the Obligors’ contract rights and general intangibles, including, without
limitation, all partnership interests, stock or other securities, licenses,
distribution and other agreements, computer software development rights, leases,
franchises, customer lists, quality control procedures, grants and rights,
goodwill, trademarks, service marks, trade styles, trade names, patents, patent
applications, copyrights, deposit accounts, and income tax refunds
(collectively, the “General Intangibles”); and
(iv) All
Receivables of the Obligors including all insurance proceeds, and rights to
refunds or indemnification whatsoever owing, together with all instruments,
all
documents of title representing any of the foregoing, all rights in any
merchandising, goods, equipment, motor vehicles and trucks which any of the
same
may represent, and all right, title, security and guaranties with respect to
each Receivable, including any right of stoppage in transit; and
(v) All
of
the Obligors’ documents, instruments and chattel paper, files, records, books of
account, business papers, computer programs and the products and proceeds of
all
of the foregoing Collateral set forth in clauses (i)-(iv) above.
(b) “Company”
shall mean, collectively, BSLM and all of its subsidiaries.
(c) “Obligations”
means all of the Obligors’ obligations under this Agreement, the Notes, and the
Transaction Documents in each case, whether now or hereafter existing, voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are paid, to
the
extent all or any part of such payment is avoided or recovered directly or
indirectly from the Secured Parties as a preference, fraudulent transfer or
otherwise as such obligations may be amended, supplemented, converted, extended
or modified from time to time.
(d) “Transaction
Documents” shall have the meaning set forth in the Loan Agreement.
(e) “UCC”
means the Uniform Commercial Code, as currently in effect in the State of New
York.
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2. Grant
of Security Interest.
As an
inducement for the Secured Parties to enter into the Loan Agreement and make
the
Loans to BSLM and to secure the complete and timely payment, performance and
discharge in full, as the case may be, of all of the Obligations, the Obligors
hereby, unconditionally and irrevocably, pledge, grant and hypothecate to the
Secured Parties, a continuing security interest in, a first lien upon and a
right of set-off against all of the Obligor’s right, title and interest of
whatsoever kind and nature in and to the Collateral (the “Security
Interest”).
3. Representations
Warranties Covenants and Agreements of the Obligors.
Each
Obligor represents and warrants to, and covenants and agrees with, the Secured
Parties as follows:
(a) Each
Obligor has the requisite corporate power and authority to enter into this
Agreement and otherwise to carry out its obligations thereunder. The execution,
delivery and performance by the Obligor of this Agreement and the filings
contemplated therein have been duly authorized by all necessary action on the
part of the Obligor and no further action is required by the
Obligor.
(b) The
Obligor represents and warrants that it has no place of business or offices
where its respective books of account and records are kept (other than
temporarily at the offices of its attorneys or accountants) or places where
Collateral is stored or located, except as set forth on Schedule A attached
hereto;
(c) The
Obligor is the sole owner of the Collateral (except for non-exclusive licenses
granted by the Obligor in the ordinary course of business), free and clear
of
any liens, security interests, encumbrances, rights or claims, and is fully
authorized to grant the Security Interest in and to pledge the Collateral.
There
is not on file in any governmental or regulatory authority, agency or recording
office an effective financing statement, security agreement, license or transfer
or any notice of any of the foregoing (other than those that have been filed
in
favor of the Secured Parties pursuant to this Agreement) covering or affecting
any of the Collateral. So long as this Agreement shall be in effect, the
Obligors shall not execute and shall not knowingly permit to be on file in
any
such office or agency any such financing statement or other document or
instrument (except to the extent filed or recorded in favor of the Secured
Party
pursuant to the terms of this Agreement).
(d) No
part
of the Collateral has been judged invalid or unenforceable. No written claim
has
been received that any Collateral or any Obligor’s use of any Collateral
violates the rights of any third party. There has been no adverse decision
to
any Obligor’s claim of ownership rights in or exclusive rights to use the
Collateral in any jurisdiction or to the Obligor’s right to keep and maintain
such Collateral in full force and effect, and there is no proceeding involving
said rights pending or, to the best knowledge of any Obligor, threatened before
any court, judicial body, administrative or regulatory agency, arbitrator or
other governmental authority.
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(e) Each
Obligor shall at all times maintain its books of account and records relating
to
the Collateral at its principal place of business and its Collateral at the
locations set forth on Schedule A attached hereto and may not relocate such
books of account and records or tangible Collateral unless it delivers to the
Secured Parties at least 30 days prior to such relocation (i) written notice
of
such relocation and the new location thereof (which must be within the United
States) and (ii) evidence that appropriate financing statements and other
necessary documents have been filed and recorded and other steps have been
taken
to perfect the Security Interest to create in favor of the Secured Party valid,
perfected and continuing first priority liens in the Collateral.
(f) This
Agreement creates in favor of the Secured Parties a valid security interest
in
the Collateral securing the payment and performance of the Obligations and,
upon
making the filings described in the immediately following sentence, a perfected
first priority security interest in such Collateral. Except for the filing
of
financing statements on Form UCC-I under the UCC with the jurisdictions
indicated on Schedule B, attached hereto, no authorization or approval of or
filing with or notice to any governmental authority or regulatory body is
required either (i) for the grant by any Obligor of, or the effectiveness of,
the Security Interest granted hereby or for the execution, delivery and
performance of this Agreement by the Obligors or (ii) for the perfection of
or
exercise by the Secured Parties of its rights and remedies
hereunder.
(g) On
the
date of execution of this Agreement, each Obligor will deliver to the Secured
Party one or more executed UCC financing statements on Form UCC-1 under the
UCC
with respect to the Security Interest for filing with the jurisdictions
indicated on Schedule B, attached hereto and in such other jurisdictions as
may
be requested by the Secured Parties.
(h) The
execution, delivery, and performance of this Agreement does not conflict with
or
cause a breach or default, or an event that with or without the passage of
time
or notice, shall constitute a breach or default, under any agreement to which
any Obligor is a party or by which any Obligor is bound. No consent (including,
without limitation, from stockholders or creditors of any Obligor) is required
for any Obligor to enter into and perform its obligations
hereunder.
(i) Each
Obligor shall at all times maintain the liens and Security Interest provided
for
hereunder as valid and perfected first priority liens and security interests
in
the Collateral in favor of the Secured Parties until this Agreement and the
Security Interest hereunder shall be terminated pursuant to Section 11 hereof.
Each Obligor hereby agrees to defend the same against any and all persons.
The
Obligors shall safeguard and protect all Collateral for the account of the
Secured Parties. At the request of the Secured Parties, the Obligors will sign
and deliver to the Secured Parties at any time or from time to time one or
more
financing statements pursuant to the UCC (or any other applicable statute)
in
form reasonably satisfactory to the Secured Parties and will pay the cost of
filing the same in all public offices wherever filing is, or is deemed by the
Secured Party to be, necessary or desirable to effect the rights and obligations
provided for herein. Without limiting the generality of the foregoing, the
Obligors shall pay all fees, taxes and other amounts necessary to maintain
the
Collateral and the Security Interest hereunder, and the Obligors shall obtain
and furnish to the Secured Party from time to time, upon demand, such releases
and/or subordinations of claims and liens which may be required to maintain
the
priority of the Security Interest hereunder.
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(j) The
Obligors will not transfer, pledge, hypothecate, encumber, license (except
for
non-exclusive licenses granted by the Obligor in the ordinary course of
business), sell or otherwise dispose of any of the Collateral without the prior
written consent of the Secured Parties.
(k) The
Obligors shall keep and preserve their Equipment, Inventory, and other tangible
Collateral in good condition, repair and order and shall not operate or locate
any such Collateral (or cause to be operated or located) in any area excluded
from insurance coverage.
(l) Each
Obligor shall, within ten (10) days of obtaining knowledge thereof, advise
the
Secured Parties promptly, in sufficient detail, of any substantial change in
the
Collateral, and of the occurrence of any event which would have a material
adverse effect on the value of the Collateral or on the Secured Party’s security
interest therein.
(m) Each
Obligor shall promptly execute and deliver to the Secured Parties such further
deeds, mortgages, assignments, security agreements, financing statements or
other instruments, documents, certificates and assurances and take such further
action as the Secured Party may from time to time request and may in its sole
discretion deem necessary to perfect, protect or enforce its security interest
in the Collateral including, without limitation, the execution and delivery
of a
separate security agreement with respect to any Obligor’s intellectual property
(“Intellectual Property Security Agreement”) in which the Secured Parties has
been granted a security interest hereunder, substantially in a form acceptable
to the Secured Party, which Intellectual Property Security Agreement, other
than
as stated therein, shall be subject to all of the terms and conditions
hereof.
(n) Each
Obligor shall permit the Secured Parties and its representatives and agents
to
inspect the Collateral at any time, and to make copies of records pertaining
to
the Collateral as may be requested by the Secured Parties from time to
time.
(o) Each
Obligor will take all steps reasonably necessary to diligently pursue and seek
to preserve, enforce and collect any rights, claims, causes of action and
accounts receivable in respect of the Collateral.
(p) Each
Obligor shall promptly notify the Secured Parties in sufficient detail upon
becoming aware of any attachment, garnishment, execution or other legal process
levied against any Collateral and of any other information received by the
Company that may materially affect the value of the Collateral, the Security
Interest or the rights and remedies of the Secured Parties
hereunder.
(q) All
information heretofore, herein or hereafter supplied to the Secured Parties
by
or on behalf of the Obligors with respect to the Collateral is accurate and
complete in all material respects as of the date furnished.
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4. Defaults.
The
following events shall be “Events of Default”:
(a) The
occurrence of a Triggering Event (as defined in the Notes) under the
Notes;
(b) Any
representation or warranty of any Obligor in this Agreement or in any other
Transaction Document, shall prove to have been incorrect in any material respect
when made; and
(c) The
failure by any Obligor to observe or perform any of its obligations hereunder
or
in any other Transaction Document, for five (5) days after receipt by such
Obligor of notice of such failure from the Secured Party.
5. Duty
To Hold In Trust.
Upon
the occurrence of any Event of Default and at any time thereafter, each Obligor
shall, upon receipt by it of any revenue, income or other sums subject to the
Security Interest, whether payable pursuant to the Note or otherwise, or of
any
check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum, hold the same in trust for the Secured Parties
and shall forthwith endorse and transfer any such sums or instruments, or both,
to the Secured Parties for application to the satisfaction of the
Obligations.
6. Rights
and Remedies Upon Default.
Upon
the occurrence of any Event of Default and at any time thereafter, the Secured
Parties shall have the right to exercise all of the remedies conferred hereunder
and under the Notes, and the Secured Parties shall have all the rights and
remedies of a secured party under the UCC and/or any other applicable law
(including the Uniform Commercial Code of any jurisdiction in which any
Collateral is then located). Without limitation, the Secured Parties shall
have
the following rights and powers:
(a) The
Secured Parties shall have the right to take possession of the Collateral and,
for that purpose, enter, with the aid and assistance of any person, any premises
where the Collateral, or any part thereof, is or may be placed and remove the
same, and the Obligors shall assemble the Collateral and make it available
to
the Secured Parties at places which the Secured Parties shall reasonably select,
whether at the Obligor’s premises or elsewhere, and make available to the
Secured Parties, without rent, all of the Obligor’s respective premises and
facilities for the purpose of the Secured Parties taking possession of, removing
or putting the Collateral in saleable or disposable form.
(b) The
Secured Parties shall have the right to operate the business of the Obligors
using the Collateral and shall have the right to assign, sell, lease or
otherwise dispose of and deliver all or any part of the Collateral, at public
or
private sale or otherwise, either with or without special conditions or
stipulations, for cash or on credit or for future delivery, in such parcel
or
parcels and at such time or times and at such place or places, and upon such
terms and conditions as the Secured Parties may deem commercially reasonable,
all without (except as shall be required by applicable statute and cannot be
waived) advertisement or demand upon or notice to the Obligors or right of
redemption of the Obligors, which are hereby expressly waived. Upon each such
sale, lease, assignment or other transfer of Collateral, the Secured Parties
may, unless prohibited by applicable law which cannot be waived, purchase all
or
any part of the Collateral being sold, free from and discharged of all trusts,
claims, right of redemption and equities of the Obligors, which are hereby
waived and released.
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7. Applications
of Proceeds.
The
proceeds of any such sale, lease or other disposition of the Collateral
hereunder shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection therewith)
of
the Collateral, to the reasonable attorneys’ fees and expenses incurred by the
Secured Parties in enforcing their rights hereunder and in connection with
collecting, storing and disposing of the Collateral, and then to satisfaction
of
the Obligations, and to the payment of any other amounts required by applicable
law, after which the Secured Parties shall pay to the Obligors any surplus
proceeds. If, upon the sale, license or other disposition of the Collateral,
the
proceeds thereof are insufficient to pay all amounts to which the Secured
Parties is legally entitled, the Obligors will be liable for the deficiency,
together with interest thereon, at the rate of 17% per annum or such lesser
amount permitted by applicable law (the “Default Rate”), and the reasonable fees
of any attorneys employed by the Secured Parties to collect such deficiency.
To
the extent permitted by applicable law, the Obligors waive all claims, damages
and demands against the Secured Party arising out of the repossession, removal,
retention or sale of the Collateral, unless due to the gross negligence or
willful misconduct of the Secured Parties.
8. Costs
and Expenses.
The
Obligors agree to pay all out-of-pocket fees, costs, and expenses incurred
in
connection with any filing required hereunder, including without limitation,
any
financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Parties. The Obligors shall also pay all
other claims and charges which in the reasonable opinion of the Secured Party
might prejudice, imperil or otherwise affect the Collateral or the Security
Interest therein. The Obligors will also, upon demand, pay to the Secured Party
the amount of any and all reasonable expenses, including the reasonable fees
and
expenses of its counsel and of any experts’ and agents, which the Secured Party
may incur in connection with (i) the enforcement of this Agreement, (ii) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, or (iii) the exercise or enforcement
of
any of the rights of the Secured Parties under the Notes. Until so paid, any
fees payable hereunder shall be added to the principal amount of the Notes
and
shall bear interest at the Default Rate.
9. Responsibility
for Collateral.
Each
Obligor assumes all liabilities and responsibility in connection with all
Collateral, and the obligations of the Obligors hereunder or under the Note
shall in no way be affected or diminished by reason of the loss, destruction,
damage or theft of any of the Collateral or its unavailability for any
reason.
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10. Security
Interest Absolute.
All
rights of the Secured Parties and all Obligations of the Obligors hereunder,
shall be absolute and unconditional, irrespective of: (a) any lack of validity
or enforceability of this Agreement, the Notes or any agreement entered into
in
connection with the foregoing, or any portion hereof or thereof; (b) any change
in the time, manner, or place of payment or performance of, or in any other
term
of, all or any of the Obligations, or any other amendment or waiver of or any
consent to any departure from the Note, the Transaction Documents or any other
agreement entered into in connection with the foregoing; (c) any exchange,
release or nonperfection of any of the Collateral, or any release or amendment
or waiver of or consent to departure from any other collateral for, or any
guaranty, or any other security, for all or any of the Obligations; (d) any
action by the Secured Parties to obtain, adjust, settle and cancel in its sole
discretion any insurance claims or matters made or arising in connection with
the Collateral; or (e) any other circumstance which might otherwise constitute
any legal or equitable defense available to the Obligors, or a discharge of
all
or any part of the Security Interest granted hereby. Until the Obligations
shall
have been paid and performed in full, the rights of the Secured Parties shall
continue even if the Obligations are barred for any reason, including, without
limitation, the running of the statute of limitations or bankruptcy. Each
Obligor expressly waives presentment, protest, notice of protest, demand, notice
of nonpayment and demand for performance. In the event that at any time any
transfer of any Collateral or any payment received by the Secured Parties
hereunder shall be deemed by final order of a court of competent jurisdiction
to
have been a voidable preference or fraudulent conveyance under the bankruptcy
or
insolvency laws of the United States, or shall be deemed to be otherwise due
to
any party other than the Secured Parties, then, in any such event, the Obligors’
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. The Obligors waive all
right
to require the Secured Parties to proceed against any other person or to apply
any Collateral which the Secured Parties may hold at any time, or to marshal
assets, or to pursue any other remedy. The Obligors waive any defense arising
by
reason of the application of the statute of limitations to any obligation
secured hereby.
11. Term
of Agreement.
This
Agreement and the Security Interest shall terminate on the date on which all
payments under the Notes have been made in full and all other Obligations have
been paid or discharged. Upon such termination, the Secured Parties, at the
request and at the expense of the Obligors, will join in executing any
termination statement with respect to any financing statement executed and
filed
pursuant to this Agreement.
12. Power
of Attorney; Further Assurances.
(a) The
Obligors authorize the Secured Parties, and does hereby make, constitute and
appoint it, and its respective officers, agents, successors or assigns with
full
power of substitution, as each Obligor’s true and lawful attorney-in-fact, with
power, in its own name or in the name of the Obligors, to, after the occurrence
and during the continuance of an Event of Default, (i) endorse any notes,
checks, drafts, money orders, or other instruments of payment (including
payments payable under or in respect of any policy of insurance) in respect
of
the Collateral that may come into possession of the Secured Party; (ii) to
sign
and endorse any UCC financing statement or any invoice, freight or express
xxxx,
xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and
(v)
generally, to do, at the option of the Secured Party, and at the Obligors’
expense, at any time, or from time to time, all acts and things which the
Secured Party deems necessary to protect, preserve and realize upon the
Collateral and the Security Interest granted therein in order to effect the
intent of this Agreement, the Note and the Transaction Documents all as fully
and effectually as the Obligors might or could do; and each Obligor hereby
ratifies all that said attorney shall lawfully do or cause to be done by virtue
hereof. This power of attorney is coupled with an interest and shall be
irrevocable for the term of this Agreement and thereafter as long as any of
the
Obligations shall be outstanding.
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(b) On
a
continuing basis, each Obligor will make, execute, acknowledge, deliver, file
and record, as the case may be, in the proper filing and recording places in
any
jurisdiction, including, without limitation, the jurisdictions indicated on
Schedule B, attached hereto, all such instruments, and take all such action
as
may reasonably be deemed necessary or advisable, or as reasonably requested
by
the Secured Parties, to perfect the Security Interest granted hereunder and
otherwise to carry out the intent and purposes of this Agreement, or for
assuring and confirming to the Secured Party the grant or perfection of a
security interest in all the Collateral.
(c) Each
Obligor hereby irrevocably appoints the Secured Parties as the Company’s
attorney-in-fact, with full authority in the place and stead of the Obligor
and
in the name of the Obligor, from time to time in the Secured Party’s discretion,
to take any action and to execute any instrument which the Secured Parties
may
deem necessary or advisable to accomplish the purposes of this Agreement,
including the filing, in its sole discretion, of one or more financing or
continuation statements and amendments thereto, relative to any of the
Collateral without the signature of the Obligor where permitted by
law.
13. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing, with copies to all the other parties hereto, and shall be deemed to
have been duly given when (i) if delivered by hand, upon receipt, (ii) if sent
by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
nationally recognized overnight delivery service (receipt requested), the next
business day or (iv) if mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, four days after posting in the U.S.
mails, in each case if delivered to the following addresses:
|
If
to any Obligor:
|
0000 Xxxxxxx Xxxxxx # 0 |
| Xxx Xxxxx, XX 00000 | |
| Facsimile No.: (000) 000-0000 | |
| Attention: Secretary |
If
to
Secured Parties: At
the
address set forth opposite their name on the signature page
14. Other
Security.
To the
extent that the Obligations are now or hereafter secured by property other
than
the Collateral or by the guarantee, endorsement or property of any other person,
firm, corporation or other entity, then the Secured Parties shall have the
right, in its sole discretion, to pursue, relinquish, subordinate, modify or
take any other action with respect thereto, without in any way modifying or
affecting any of the Secured Parties’ rights and remedies
hereunder.
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15. Miscellaneous.
(a) No
course
of dealing between the Obligors and the Secured Parties, nor any failure to
exercise, nor any delay in exercising, on the part of the Secured Parties,
any
right, power or privilege hereunder or under the Notes shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
(b) All
of
the rights and remedies of the Secured Parties with respect to the Collateral,
whether established hereby or by the Note or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
(c) This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and is intended to supersede all prior negotiations,
understandings and agreements with respect thereto. Except as specifically
set
forth in this Agreement, no provision of this Agreement may be modified or
amended except by a written agreement specifically referring to this Agreement
and signed by the parties hereto.
(d) In
the
event that any provision of this Agreement is held to be invalid, prohibited
or
unenforceable in any jurisdiction for any reason, unless such provision is
narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective
to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions
of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other
jurisdiction.
(e) No
waiver
of any breach or default or any right under this Agreement shall be considered
valid unless in writing and signed by the party giving such waiver, and no
such
waiver shall be deemed a waiver of any subsequent breach or default or right,
whether of the same or similar nature or otherwise.
(f) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
(g) Each
party shall take such further action and execute and deliver such further
documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
10
(h) This
Agreement shall be construed in accordance with the laws of the State of New
York except to the extent the validity, perfection or enforcement of a security
interest hereunder in respect of any particular Collateral which are governed
by
a jurisdiction other than the State of New York in which case such law shall
govern. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of any New York State or United States Federal court sitting in
the
county of New York over any action or proceeding arising out of or relating
to
this Agreement, and the parties hereto hereby irrevocably agree that all claims
in respect of such action or proceeding may be heard and determined in such
New
York State or Federal court. The parties hereto agree that a final judgment
in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other inner provided by law.
The
parties hereto further waive any objection to venue in the State of New York
and
any objection to an action or proceeding in the State of New York on the basis
of forum non convenient.
(i) EACH
PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE
OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY
BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO A
BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY ON THIS
WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING
SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT, NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS
AND
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION,
THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(j) This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement in the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
************
11
IN
WITNESS WHEREOF, the parties hereto have caused this Security Agreement to
be
duly executed on the day and year first above written.
| BIO SOLUTIONS MANUFACTURING, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
| BIO SOLUTIONS PRODUCTION, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
| BIO EXTRACTION SERVICES, INC. |
|
By:/s/
Xxxxx X. Xxxxxxx
|
| Name: Xxxxx X. Xxxxxxx |
| Title: President |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
INVESTOR
SIGNATURE PAGES FOLLOWS]
12
SECURED
PARTIES:
[INTENTIONALLY
OMITTED]
13
SCHEDULE
A
Principal
Place of Business of the Obligors:
000
X.
Xxxxxxx, #0, Xxx Xxxxx, XX
0000
Xxxxx Xxxxxx, Xxxxxxxxxxx, XX
Locations
Where Collateral is Located or Stored:
000
X.
Xxxxxxx, #0, Xxx Xxxxx, XX
0000
Xxxxx Xxxxxx, Xxxxxxxxxxx, XX
14
SCHEDULE
B
New
York
Nevada
