MASTER SECURITY AGREEMENT
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To:
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Queequeg
Partners, L.P., as Agent
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000
Xxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Date:
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As
of April 27, 2006
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To
Whom It May Concern:
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1. To
secure
the payment of all Obligations (as hereafter defined), a21 Inc., a Texas
corporation (“a21”) and Superstock, Inc., a Florida corporation (individually a
“Company” and collectively the “Companies”), and each other entity that is
required to enter into this Master Security Agreement (each an “Assignor” and,
collectively, the “Assignors”) hereby assigns and grants to Queequeg Partners,
L.P. (“Queequeg”), as agent (Queequeg or any successor agent appointed pursuant
to the Securities Purchase Agreement (as defined below), the “Agent”) for itself
and as agent for other Purchasers (as defined in the Securities Purchase
Agreement) a continuing security interest in all of the following property
now
owned or at any time hereafter acquired by such Assignor, or in which such
Assignor now has or at any time in the future may acquire any right, title
or
interest (the “Collateral”): all cash, cash equivalents, accounts, accounts
receivable, deposit accounts, inventory, equipment, goods, fixtures, documents,
instruments (including, without limitation, promissory notes), contract rights,
general intangibles (including, without limitation, payment intangibles and
an
absolute right to license on terms no less favorable than those currently in
effect among such Assignor’s affiliates), chattel paper, supporting obligations,
investment property (including, without limitation, all equity interests owned
by any Assignor), letter-of-credit rights, all commercial tort claims set forth
on Schedule A
(as may
be supplemented), trademarks, trademark applications, tradestyles, patents,
patent applications, copyrights, copyright applications and other intellectual
property in which such Assignor now has or hereafter may acquire any right,
title or interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions and
substitutions thereto or therefor; provided,
that,
the
Collateral shall not include Excluded Property (as defined below).
“Excluded
Property”
shall
mean
(a) any
permit or license issued by the government of the United States of America
or
any other nation, or of any political subdivision thereof, whether state,
provincial, territorial or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government to any Assignor or any agreement to which any
Assignor is a party, in each case, only to the extent and for so long as the
terms of such permit, license or agreement or any law applicable thereto: (i)
validly prohibit the creation by such Assignor of a security interest in such
permit, license or agreement in favor of the Agent (after giving effect to
Sections 9-406(d), 9-407(a), 9-408(a) or 9-409 of the UCC (or any successor
provision or provisions) or any other applicable law or (ii) would result in
a
breach or termination pursuant to the terms of, or a default under any such
permit, license or agreement (other than to the extent that any such term would
be rendered ineffective pursuant to Section 9-406, 9-407, 9-408 or 9-409 of
the
UCC (or any successor provision or provisions);
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(b) equipment
owned by any Assignor on the date hereof or hereafter acquired that is subject
to an Encumbrance securing purchase money indebtedness or a capital lease
permitted to be incurred pursuant to the provisions of the Securities Purchase
Agreement to the extent, but only so long as, the contract or other agreement
in
which such Lien is granted (or the documentation providing for such purchase
money indebtedness or capital lease) validly prohibits the creation of any
other
Encumbrance on such equipment;
(c) the
voting equity interests in any foreign subsidiary in excess of 65% of the voting
equity interests of such foreign subsidiary;
(d) any
“intent to use” applications for trademark or service xxxx registration filed
pursuant to Section 1(b) of the Xxxxxx Act, 15 U.S.C. § 1051(b), unless and
until an Amendment to Allege Use or a Statement of Use under Section 1(c) and
1(d) of said Act has been properly filed and filing accepted by the Patent
and
Trademark Office, to the extent that any assignment of an “intent to use”
application prior to such filing would violate the Xxxxxx Act, whereupon such
application shall be automatically subject to the security interest granted
herein and deemed to be included in the Collateral; and
(e) the
leasehold rights for the lease of a21’s offices in Jacksonville,
Florida.
In
the
event any Assignor wishes to finance the acquisition in the ordinary course
of
business of any hereafter acquired equipment and has obtained a written
commitment from an unrelated third party financing source to finance such
equipment to the extent such financing is not prohibited under the Securities
Purchase Agreement and, so long as no Event of Default has occurred and is
continuing, Agent shall release or, if permitted to do so by such third party
source, subordinate its security interest on such hereafter acquired equipment
so financed by such third party financing source if required by such third
party
financing source.
Except
as
otherwise defined herein, all capitalized terms used herein shall have the
meanings provided such terms in the Securities Purchase Agreement. All items
of
Collateral which are defined in the UCC (as defined below) shall have the
meanings set forth in the UCC. For purposes hereof, the term "UCC" means the
Uniform Commercial Code as the same may, from time to time, be in effect in
the
State of New York; provided, that in the event that, by reason of mandatory
provisions of law, any or all of the attachment, perfection or priority of,
or
remedies with respect to, Agent’s security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term “UCC” shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
of
this Master Security Agreement relating to such attachment, perfection, priority
or remedies and for purposes of definitions related to such provisions; provided
further, that to the extent that the UCC is used to define any term herein
and
such term is defined differently in different Articles or Divisions of the
UCC,
the definition of such term contained in Article or Division 9 shall
govern.
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2. The
term
“Obligations” as used herein shall mean and include all existing and future
debts, liabilities and obligations (of any kind whatsoever, whether now existing
or in the future created, direct or indirect or contingent or non-contingent
owing by any Assignor to Agent or Purchasers arising under, out of, or in
connection with: (i) that certain Securities Purchase Agreement dated as of
the
date hereof by and between the Company and Agent (as may be amended, modified,
restated or supplemented from time to time (the “Securities Purchase Agreement”)
and (ii) the Related Agreements referred to in the Securities Purchase Agreement
(the Securities Purchase Agreement and each Related Agreement, as each may
be
amended, modified, restated or supplemented from time to time, collectively,
the
“Documents”), and in connection with any documents, instruments or agreements
relating to or executed by the Company or its Subsidiaries in connection with
the Documents or any documents, instruments or agreements referred to therein
including, without limitation, principal, interest, reasonable expenses (but
only to the extent such expenses are required to be paid by any Company under
the terms and conditions of the Documents), amounts that Agent may advance
or
spend for the maintenance or preservation of Collateral, any other amounts
that
Agent is authorized to advance under the Master Security Agreement or any other
Document and any indemnity obligations of any Assignor under any Document.
3. Each
Assignor hereby jointly and severally represents, warrants and covenants to
Agent and the Purchasers that:
(a) it
is a
corporation, partnership or limited liability company, as the case may be,
validly existing, in good standing and formed under the respective laws of
its
jurisdiction of formation set forth on Schedule
B,
and
each Assignor will provide Agent ten (10) days’ prior written notice of any
change in any of its respective jurisdiction of formation and, at Assignor’s
expense, prior to such change take all actions reasonably requested by Agent
to
maintain the perfection and priority of Agent’s liens in any Collateral
including, without limitation providing lien searches and filing UCC1 financing
statements and UCC-3 amendments as Agent may request;
(b) its
legal
name is as set forth in its Certificate of Incorporation or other organizational
document (as applicable) as amended through the date hereof and as set forth
on
Schedule
B,
and it
will provide Agent ten (10) days’ prior written notice of any change in its
legal name and, at Assignor’s expense, prior to such change take all actions
reasonably requested by Agent to maintain the perfection and priority of Agent’s
liens in any Collateral, including, without limitation, providing lien searches
and filing UCC-1 financing statements and UCC-3 amendments as Agent may
request;
(c) its
organizational identification number (if applicable) is as set forth on
Schedule
B
hereto,
and it will provide Agent ten (10) days’ prior written notice of any change in
its organizational identification number;
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(d) it
is the
lawful owner of its Collateral (subject to Section 4.9 of the Securities
Purchase Agreement and any leases or licenses with respect to such Collateral)
and it has the sole right to grant a security interest therein and will defend
the Collateral against all claims and demands of all persons and
entities;
(e) subject
to Section 4.9 of the Securities Purchase Agreement, it will keep its Collateral
free and clear of all attachments, levies, taxes, liens, security interests
and
encumbrances of every kind and nature (“Encumbrances”), except Permitted
Encumbrances. The term “Permitted Encumbrances” as used herein shall
mean:
(i) inchoate
Encumbrances for taxes, assessments or governmental charges or levies not yet
due and payable or delinquent and Encumbrances for taxes, assessments or
governmental charges or levies, which are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in
accordance with generally accepted accounting principles (“GAAP”) which
proceedings (or orders entered in connection with such proceedings) have the
effect of preventing the forfeiture or sale of the property subject to any
such
Encumbrance;
(ii) Encumbrances
in respect of property of any Assignor imposed by applicable law, such as
carriers’, warehousemen’s, materialmen’s, landlords’, workmen’s, suppliers’,
repairmen’s and mechanics’ liens and other similar Encumbrances, and (i) which
do not in the aggregate materially detract from the value of the property of
the
Assignors, taken as a whole, and do not materially impair the use thereof in
the
operation of the business of the Assignors, taken as a whole and (ii) which,
if
they secure obligations that are then due and unpaid, are being contested in
good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, which proceedings (or orders entered in
connection with such proceedings) have the effect of preventing the forfeiture
or sale of the property subject to any such Encumbrance;
(iii) any
Encumbrance in existence on the Closing Date and set forth on Schedule
3(e)
hereto
and any Encumbrance granted as a replacement or substitute therefor; provided
that any such replacement or substitute Encumbrance does not secure an aggregate
amount of indebtedness, if any, greater than that secured on the Closing Date
and does not encumber any property other than the property subject thereto
on
the Closing Date;
(iv) easements,
rights-of-way, restrictions (including zoning restrictions), covenants,
licenses, encroachments, protrusions and other similar charges or encumbrances,
and minor title deficiencies on or with respect to any real property owned
by an
Assignor, whether now or hereafter in existence, not (i) individually or in
the
aggregate materially impairing the value or marketability of such real property
or (ii) individually or in the aggregate materially interfering with the
ordinary conduct of the business of the Assignor at such real
property;
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(v) Encumbrances
arising out of judgments, not resulting in an Event of Default;
(vi) Encumbrances
(x) imposed by applicable law or deposits made in connection therewith in the
ordinary course of business in connection with workers’ compensation,
unemployment insurance, social security and similar legislation, (y) incurred
in
the ordinary course of business to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money) or (z) arising by virtue
of
deposits made in the ordinary course of business to secure liability for
premiums to insurance carriers;
(vii) leases
of
the properties of any Assignor, so long as such leases are subordinate in all
respects to the Encumbrances granted and evidenced by the Documents and do
not,
individually or in the aggregate, (i) interfere in any material respect with
the
ordinary conduct of the business of any Assignor or (ii) materially impair
the
use (for its intended purposes) or the value of the property subject
thereto;
(viii) Encumbrances
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by any Assignor in the ordinary
course of business in accordance with the past practices of such Assignor to
the
extent such arrangements are not prohibited under the terms and conditions
of
the Documents;
(ix) Encumbrances
securing indebtedness incurred pursuant to Section 6.22(D)(i)(C) of the
Securities Purchase Agreement, provided that any such Encumbrances attach only
to the property being financed pursuant to such indebtedness and do not encumber
any other property of any Company;
(x) bankers’
liens, rights of setoff and other similar Encumbrances existing solely with
respect to cash and cash equivalents on deposit in one or more accounts
maintained by any Assignor, in each case granted in the ordinary course of
business in favor of the bank or banks with which such accounts are maintained,
securing amounts owing to such bank with respect to cash management and
operating account arrangements, including those involving pooled accounts and
netting arrangements;
(xi) Encumbrances
on property of a person existing at the time such person is acquired or merged
with or into or consolidated with any Assignor to the extent permitted under
the
Documents (and not created in anticipation or contemplation thereof); provided
that such Encumbrances do not extend to property not subject to such
Encumbrances at the time of acquisition (other than improvements thereon) and
are no more favorable to the lienholders than such existing
Encumbrance;
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(xii) Encumbrances
granted pursuant to the Documents to secure the Obligations;
(xiii) licenses
of intellectual property granted by any Assignor in the ordinary course of
business on arms-length terms and not interfering in any material respect with
the ordinary conduct of business of the Assignors;
(xiv) the
filing of UCC financing statements or financing statements or financing change
statements solely as a precautionary measure in connection with leases or
consignment of goods;
(xv) Encumbrances
securing Indebtedness incurred pursuant to Sections 6.22(d)(i)(D), 6.22(d)(i)(E)
and 6.22(d)(i)(F) of the Securities Purchase Agreement; and
(xvi) Encumbrances
with respect to obligations that do not in the aggregate exceed $100,000 at
any
time outstanding.
(f) it
will
keep the Collateral in good state of repair (ordinary wear and tear excepted)
and will not waste or destroy the same or any part thereof other than ordinary
course discarding of items no longer used or useful in its or such other
Assignors’ business;
(g) maintain
insurance in accordance with Section 6.18 of the Securities Purchase Agreement.
Assignor shall provide evidence of insurance upon request reasonably
satisfactory to Agent. The policies of insurance (or the loss payable and
additional insured endorsements delivered to Agent) shall contain provisions
pursuant to which the insurer agrees to provide 30 days prior written notice
(or, in the event of cancellation for non-payment, 10 days) to Agent in the
event of any cancellation, amendment, modification or non-renewal of any such
policy. If an Event of Default has been declared by Agent and is then
continuing, Agent shall have the exclusive right to settle and adjust all
insurance claims relating to any casualty or loss and may, in its sole
discretion, apply the proceeds of any casualty and loss insurance against the
Obligations in accordance with the terms and conditions of the
Documents.
(h) the
Perfection Certificate executed by each Assignor is true, correct and
complete;
(i) the
only
pending commercial tort claims that have been asserted in writing by any
Assignor are set forth on the attached Schedule A and if an Assignor at any
time
asserts a commercial tort claim for damages exceeding $250,000, it shall
promptly notify Agent in writing of the specific details of that claim including
any pleading describing that claim, and, if requested by Agent in writing,
execute a supplement to Schedule A specifically describing that claim so that
the claim is included as Collateral under this Master Security Agreement, to
Agent’s reasonable satisfaction;
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(j) if
requested by Agent in writing, it will deliver to Agent originals of any notes,
stock certificates, instruments or chattel paper owned by such Assignor;
and
(k) it
will
provide to Agent 30 days written notice prior to acquiring any real property
having a fair market value in excess of $500,000 and, so long as such real
property is not or will not be otherwise subject to a mortgage, at its expense,
take all actions and execute all documents requested by Agent in writing to
provide to Agent, for the benefit of the Purchasers a duly perfected first
priority mortgage on such property.
4. The
occurrence of an Event of Default under and as defined in the Notes (as defined
in the Securities Purchase Agreement) shall constitute an “Event of Default”
under this Master Security Agreement.
5. Upon
the
occurrence and continuance of any Event of Default, Agent may, at the direction
of the Required Purchasers (as defined in the Securities Purchase
Agreement) declare
all Obligations immediately due and payable and Agent shall have the remedies
of
a secured party provided in the UCC, this Agreement and other applicable law.
Upon the occurrence and continuance of any Event of Default, Agent, at the
direction of Required Purchasers, will have the right to take possession of
the
Collateral and to maintain such possession on any Assignor’s premises or to
remove the Collateral or any part thereof to such other premises as Agent may
desire. Upon Agent’s request, each Assignor shall assemble or cause the
Collateral to be assembled and make it available to Agent at a place designated
by Agent. If any notification of intended disposition of any Collateral is
required by law, such notification, if mailed, shall be deemed properly and
reasonably given if mailed at least ten (10) days before such disposition,
postage prepaid, addressed to the applicable Assignor either at such Assignor’s
address shown herein or at any address appearing on Agent’s records for such
Assignor. Any proceeds of any disposition of any of the Collateral shall be
applied by Agent to the payment of all expenses in connection with the sale
of
the Collateral, including reasonable attorneys’ fees and other legal expenses
and disbursements and the reasonable expenses of retaking, holding, preparing
for sale, selling, and the like, and any balance of such proceeds shall be
applied by Agent toward the payment of the Obligations in order provided for
in
the Securities Purchase Agreement. To the extent that applicable law imposes
upon Agent duties to exercise remedies in a commercially reasonable manner,
Assignor acknowledges that it is not commercially unreasonable if Agent: (a)
sells the Collateral without giving any warranties as to the Collateral or
Agent
specifically disclaims any warranties of title or the like, (b) fails to obtain
any required third party or government consent for access to the Collateral
to
be sold or for the collection or disposition of the Collateral, (c) hires or
does not hire collectors, brokers, investment bankers, auctioneers, liquidators,
professionals or others to assist, or manage, the collection or disposition
of
the Collateral, (d) conducts sales using the internet or (e) disposes of the
Collateral in wholesale rather than retail markets. This procedure will not
be
considered adversely to affect the commercial reasonableness of any sale of
the
Collateral. If Agent sells any of the Collateral upon credit, Assignors will
be
credited only with payments actually made by the buyer, received by Agent and
applied to the Obligations. In the event the buyer fails to pay for the
Collateral, Agent may resell the Collateral. If Agent purchases any of the
Collateral being sold, Agent may pay for the Collateral by crediting some or
all
of the Obligations.
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6. If
any
Assignor defaults in the performance or fulfillment of any of the terms,
conditions, promises, covenants, provisions or warranties on such Assignor’s
part to be performed or fulfilled under or pursuant to this Master Security
Agreement and such default is continuing, Agent may, at its option without
waiving its right to enforce this Master Security Agreement according to its
terms, immediately or at any time thereafter and without notice to any Assignor,
perform or fulfill the same or cause the performance or fulfillment of the
same
for each Assignor’s joint and several account and at each Assignor’s joint and
several cost and expense, and the cost and expense thereof (including reasonable
attorneys’ fees) shall be added to the Obligations and shall be payable on
demand.
7. Each
Assignor appoints Agent, any of Agent’s officers, employees or any other person
or entity whom Agent may designate as such Assignor’s attorney, with power to
execute such documents in each such Assignor’s behalf and to supply any omitted
information and correct patent errors in any documents executed by any Assignor
or on any Assignor’s behalf; to file financing statements against such Assignor
covering the Collateral (and, in connection with the filing of any such
financing statements, describe the Collateral as “all assets and all personal
property, whether now owned and/or hereafter acquired” (or any substantially
similar variation thereof)); following the occurrence and during the continuance
of an Event of Default, to sign such Assignor’s name on public records; and to
endorse an Assignor’s name on checks, to send notices and to settle collections
in Assignor’s name and to do all other things Agent deems reasonably necessary
to carry out this Master Security Agreement. Each Assignor hereby ratifies
and
approves all acts of the attorney and neither Agent nor the attorney will be
liable for any acts of commission or omission, nor for any error of judgment
or
mistake of fact or law other than gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable
decision). This power being coupled with an interest, is irrevocable so long
as
any Obligations (other than contingent indemnity Obligations that have not
been
asserted by Agent or any Purchaser) remains unpaid.
8. No
delay
or failure on Agent’s part in exercising any right, privilege or option
hereunder shall operate as a waiver of such or of any other right, privilege,
remedy or option, and no waiver whatsoever shall be valid unless in writing,
signed by Agent and then only to the extent therein set forth, and no waiver
by
Agent of any default shall operate as a waiver of any other default or of the
same default on a future occasion. Agent shall have the right to enforce any
one
or more of the remedies available to Agent, successively, alternately or
concurrently including the right to collect against any Assignor without first
executing on any Collateral. Agent has no obligation to marshal any assets
in
favor of any Assignor, or against or in payment of any Obligations. Each
Assignor agrees to join with Agent in executing such documents or other
instruments in form reasonably satisfactory to Agent and in executing such
other
documents or instruments as may be reasonably required or deemed necessary
by
Agent for purposes of affecting or continuing Agent’s security interest in the
Collateral.
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9. This
Master Security Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York applicable to contracts made
and performed in such state and cannot be terminated orally. This Master
Security Agreement and all rights and obligations hereunder shall be binding
upon the Assignors and their respective successors and assigns, and shall inure
to the benefit of the Agent, the Purchasers and each of their respective
successors and assigns.
10. Each
Assignor hereby consents and agrees that the state or federal courts located
in
the County of New York, State of New York shall have exclusive jurisdiction
to
hear and determine any claims or disputes between Assignor, on the one hand,
and
Agent, on the other hand, pertaining to this Master Security Agreement or to
any
matter arising out of or related to this Master Security Agreement, provided,
that Agent and each Assignor acknowledges that any appeals from those courts
may
have to be heard by a court located outside of the County of New York, State
of
New York, and further provided, that nothing in this Master Security Agreement
shall be deemed or operate to preclude Agent, to the extent necessary, from
bringing suit or taking other legal action in any other jurisdiction to collect
the Obligations, to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of Agent.
Each Assignor expressly submits and consents in advance to such jurisdiction
in
any action or suit commenced in any such court, and each Assignor hereby waives
any objection which it may have based upon lack of personal jurisdiction,
improper venue or forum non conveniens.
THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS
TO
TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN AGENT AND/OR ANY
PURCHASER AND/OR ANY ASSIGNOR ARISING OUT OF, CONNECTED WITH, RELATED OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS
MASTER SECURITY AGREEMENT OR THE TRANSACTIONS RELATED HERETO.
11. It
is
understood and agreed that any person or entity that desires to become an
Assignor hereunder, or is required to execute a counterpart of this Master
Security Agreement after the date hereof pursuant to the requirements of any
Document, shall become an Assignor hereunder by (x) executing a Joinder
Agreement in form and substance reasonably satisfactory to Agent, (y) delivering
supplements to such exhibits and annexes to such Documents as Agent shall
reasonably request and (z) taking all actions as specified in this Master
Security Agreement as would have been taken by such Assignor had it been an
original party to this Master Security Agreement, in each case with all
documents required above to be delivered to Agent and with all documents and
actions required above to be taken to the reasonable satisfaction of
Agent.
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This
Agreement may be executed by facsimile signatures and in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one agreement.
12. All
notices from Agent to any Assignor shall be sufficiently given if mailed or
delivered to such Assignor’s address set forth below or as subsequently changed
by Assignor in a written notice delivered to Agent in accordance with Section
10
hereof.
13. Agent
agrees, following the indefeasible payment in full of all Obligations (other
than contingent indemnity Obligations that have not been asserted by Agent
or
any Purchaser), and so long as neither the Agent nor the Purchaser have any
duty
to extend any additional credit under the terms of the Documents, at Assignors’
expense, to promptly take all reasonable actions and to deliver any documents
and certificates which are reasonably requested in writing by any Assignor
to
reflect the termination of the obligations of any Assignor under this Master
Security Agreement, including without limitation the delivery of letters
authorizing the termination of any UCC-1 financing statements filed by Agent
pursuant to this Master Security Agreement with respect to the Collateral.
Notwithstanding the foregoing, this Master Security Agreement shall remain
in
full force and effect and continue to be effective should any petition be filed
by or against any Assignor for liquidation or reorganization, should any
Assignor become insolvent or make an assignment for the benefit of any creditor
or creditors or should a receiver or trustee be appointed for all or any
significant part of any Assignor’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 any obligee
of
the Obligations, whether as a “voidable preference,” “fraudulent transfer,” 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.
14. Each
Assignor agrees to execute any further documents, and to take any further
actions, reasonably requested by Agent to evidence or perfect the security
interest granted herein, to maintain the first priority of the security
interests (subject only to Permitted Encumbrances), or to effectuate the rights
granted to Agent herein or obtain the full benefits of this Master Security
Agreement
15. In
this
Master Security Agreement, the following rules of construction and
interpretation shall be applicable: (i) no reference to “proceeds” herein
authorizes any sale, transfer, or other disposition of any Collateral by
Assignors; (ii) “includes” and “including” are not limiting; (iii) “or” is not
exclusive; and (iv) “all” includes “any” and “any” includes “all.”
16. If
any
term of this Master Security Agreement shall be held to be invalid, illegal
or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Master Security Agreement shall be construed and
be
enforceable as if such invalid, illegal or unenforceable term had not been
included herein.
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IN
WITNESS WHEREOF, the parties hereto have executed this Master Security Agreement
as of the date and year first above written.
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Very
truly yours,
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a21,
INC.
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By:
/s/ Xxx Xxxxxxxx
Name:
Xxx Xxxxxxxx
Title:
VP CFO
|
|
|
Address: 0000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
|
|
|
SUPERSTOCK,
INC.
|
|
|
By:
/s/ Xxx Xxxxxxxx
Name:
Xxx Xxxxxxxx
Title:
EVP CFO
|
|
|
Address: 0000
Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxxx,
XX 00000
|
|
|
ACKNOWLEDGED:
|
|
|
QUEEQUEG
PARTNERS, L.P.,
a
Delaware limited partnership
|
|
|
By:
QUEEQUEG
GP, LLC,
|
|
|
a Delaware limited liability company,
its general partner
|
|
|
By:
/s/ Xxxxxxxx Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Managing Member
|
|
|
Address: 000
Xxxx Xxxxxx
Xxx Xxxx, XX 00000
|
11
SCHEDULE
A
COMMERCIAL
TORT CLAIMS
None
12
SCHEDULE
B
|
Entity
|
Jurisdiction
of Formation
|
Organization
Identification Number
|
|
Texas
|
0151052800
|
|
|
Superstock,
Inc.
|
Florida
|
P93000030720
|
13
SCHEDULE
3(c)
PERMITTED
ENCUMBRANCES
UCC
FINANCING STATEMENTS
|
Debtor
|
Secured
Party
|
File
No.
|
File
Date
|
Collateral
|
|
Superstock,
Inc.
|
Dell
Financial Services, L.P.
|
200500557037
|
8/29/05
|
All
computer equipment and peripherals (collectively “Equipment”), wherever
located, heretofore or hereafter financed to Superstock, Inc. by
creditor
pursuant to that certain revolving credit account #0000000000000000000,
dated August 22, 2005 (the “Account”) along with any additional financed
amounts, modifications or supplements to the Account, and all
substitutions, additions, accessions and replacements to the Equipment,
now or hereafter installed in, affixed to, or used in, conjunction
with
the Equipment and the proceeds thereof together with all payments,
insurance proceeds, other proceeds and payments due and to become
due.
|
|
Superstock,
Inc.
|
Dell
Financial Services, L.P.
|
200500394022
|
8/9/05
|
All
computer equipment and peripherals (collectively “Equipment”) wherever
located heretofore or hereafter leased to Lessee by Lessor pursuant
to
that certain Equipment Lease #007606115-001, dated August 1, 2005,
and/or
any other Equipment leased pursuant to Leases that are in substantially
the same form attached, including, without limitation, all substitutions,
additions, accessions and replacements thereto, and thereof, now
or
hereafter installed in, affixed to, or used in, conjunction with
the
Equipment and proceeds thereof together with all rental or installment
payments, insurance proceeds, other proceeds and payments due and
to
become due and arising from or relating to said Equipment.
|
14
