EXHIBIT 10.3.2
SECURITY AGREEMENT
This Security Agreement (the "Agreement") is made as of the 6th day of
December 2002, by Odimo Incorporated, a Delaware corporation, with its chief
executive office located at 0000 X.X. 0xx Xxxxxx, Xxxxxxx, XX 00000, Odimo
Acquisition Corp., a Delaware corporation, with its chief executive office
located at 0000 X.X. 0xx Xxxxxx, Xxxxxxx, XX 00000 (collectively, "Odimo"), and
delivered to Xxxxxxx.xxx, Inc. ("Ashford"), a Delaware corporation, having a
mailing address of 0000 Xxxxx Xxxxxx Xxxx xx Xxxxxxx, Xx 00000.
BACKGROUND
Ashford and Odimo are parties to an Asset Purchase Agreement (the
"Asset Purchase Agreement"), dated as of the date hereof, pursuant to which
Odimo acquired the Initial Purchased Assets (as defined in the Asset Purchase
Agreement) in exchange for, among other things: (a) a subordinated secured
promissory note (the "Promissory Note") in the principal amount of Four Million
Five Hundred Thousand Dollars ($4,500,000); and (b) 15,596,183 shares of Odimo
Incorporated Series D preferred stock, par value $0.001 per share, and a warrant
to purchase 2,676,303 shares of Series D preferred stock.
As an inducement to Ashford entering into the Asset Purchase Agreement,
Odimo has agreed to pledge the Collateral as provided herein in order to secure
its obligations under the Promissory Note.
Capitalized terms not defined herein which are defined in the Uniform
Commercial Code, as adopted in the Commonwealth of Pennsylvania at 13 Pa.C.S.A.
ss.1101 ET SEQ. (the "UCC"), shall have the meanings ascribed to them in the
UCC. Capitalized terms not defined herein or in the UCC shall have the meanings
ascribed to them in the Asset Purchase Agreement or by reference therein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
SECTION 1 - SECURITY INTEREST
1.1 DESCRIPTION. As security for the prompt and complete payment and
performance (whether at the stated maturity, by acceleration or otherwise) of
all of Odimo's obligations under the Promissory Note, the Asset Purchase
Agreement and any and all other obligations or debts of Odimo to Ashford whether
now existing or hereafter arising, Odimo hereby assigns and grants to Ashford, a
continuing security interest in, upon and to the following property (the
"Collateral"):
(a) ACCOUNTS, CONTRACT RIGHTS, ETC. All of Odimo's now owned
and hereafter acquired, created, or arising Accounts, accounts receivable, notes
receivable,
contract rights, Chattel Paper, Documents (including documents of title),
Instruments, letters of credit and Goods;
(b) INVENTORY. All of Odimo's now owned or hereafter acquired
Inventory of every nature and kind, wherever located (excluding Inventory held
by Odimo on consignment);
(c) GENERAL INTANGIBLES. All of Odimo's now owned and
hereafter acquired, created or arising General Intangibles of every kind and
description, including, without limitation, all existing and future rights to
commissions, customer lists, choses in action, claims, books, records, patents
and patent applications, copyrights, copyright applications, service marks,
trademarks, trade names, trade styles, trademark applications, domain names,
uniform resource locators for websites, blueprints, drawings, designs and plans,
trade secrets, contracts, contract rights, license agreements, formulae, tax and
any other types of refunds, returned and unearned insurance premiums, rights and
claims under insurance policies including, without limitation, credit insurance
and key man life insurance policies, and computer information, software, records
and data;
(d) EQUIPMENT. All of Odimo's now owned and hereafter acquired
Equipment, including, without limitation, machinery, vehicles, furniture and
Fixtures, wherever located, and all replacements, parts, accessories,
substitutions and additions thereto;
(e) DEPOSIT ACCOUNTS. All of Odimo's now existing and
hereafter acquired or arising Deposit Accounts of every nature, wherever
located, and all documents and records associated therewith;
(f) PROPERTY IN ASHFORD' POSSESSION. All Property of Odimo,
now or hereafter in any Ashford' possession;
(g) INVESTMENT PROPERTY. All of Odimo's now owned or hereafter
acquired Investment Property whether registered or unregistered; and
(h) SUPPORTING OBLIGATIONS. All Supporting Obligations with
respect to all of the foregoing.
(i) PROCEEDS. The Proceeds (including, without limitation,
insurance proceeds), whether cash or non-cash, of all of the foregoing.
1.2 SENIOR DEBT.
(a) PERMITTED LIENS. Odimo shall not create, assume or suffer
to exist any encumbrance upon any of its assets, whether now owned or hereafter
acquired, except as set forth herein, as set forth in the Patents, Trademarks,
Copyrights, and Licenses Security Agreement, of even date herewith, between
Odimo and Ashford, and for Liens (as defined below) to secure Senior Debt (as
defined in the Promissory Note) in
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an amount not to exceed the Permitted Senior Debt Amount (as defined in the
Promissory Note) on terms and conditions reasonably acceptable to Ashford
("Permitted Liens"). For purposes of this Agreement, "Lien" shall mean any
interest of any kind or nature in property securing an obligation owed to, or a
claim of any kind or nature in property by, a Person other than the owner of the
property, whether such interest is based on the common law, statute, regulation
or contract, and including, but not limited to, a judgment, security interest or
lien arising from a mortgage, encumbrance, pledge, conditional sale or trust
receipt, a lease, consignment or bailment for security purposes, a trust, or an
assignment.
(b) SUBORDINATION. Except with respect to the Collateral
described in SECTION 1.1(C) ("Specified Collateral") and Proceeds thereof, the
payment of the Promissory Note is subordinate (on terms and conditions
reasonably acceptable to Ashford) and junior in right of payment to the prior
payment of an aggregate amount of Odimo's Senior Debt equal to the Permitted
Senior Debt Amount; provided, that absent the occurrence of an event of default
under the Senior Debt, regular installments of principal, interest, fees and
expenses under the Promissory Note shall be made. With respect to the Specified
Collateral and Proceeds thereof, the payment of Senior Debt is subordinate and
junior in right of payment to the prior payment of any and all amounts due under
the Promissory Note. Ashford shall, from time to time, after the date hereof,
execute and deliver any instrument and take such additional actions reasonably
requested by Odimo to confirm or evidence the subordination referenced hereby.
(c) RELATIVE RIGHTS. The provisions of this Section 1.2 are
for the purpose of defining the relative rights of the holders of Senior Debt
and Ashford against Odimo and its property. Nothing herein shall impair, as
between Ashford and Odimo, the obligation of Odimo to pay to Ashford the amounts
due under the Promissory Note in accordance with the terms and the provisions
hereof; nor shall anything herein prevent Ashford from exercising all remedies
otherwise permitted by applicable law upon default under the Promissory Note.
1.3 LIEN DOCUMENTS. As Ashford deems necessary, Odimo shall execute and
deliver to Ashford, or have executed and delivered (all in form and substance
satisfactory to Ashford):
(a) FINANCING STATEMENTS. Financing statements pursuant to the
UCC, which Ashford may (and is hereby authorized to) file in the jurisdiction
where Odimo is incorporated and in any other jurisdiction that Ashford deems
appropriate;
(b) INTELLECTUAL PROPERTY SECURITY AGREEMENTS. Intellectual
property security agreements in the form of EXHIBIT A attached hereto, as
Ashford may request from time to time to evidence, perfect or protect Ashford'
Lien and security interest in the intellectual property included in the
Collateral; and
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(c) OTHER AGREEMENTS. Any other agreements, documents,
instruments and writings as Ashford may request from time to time to evidence,
perfect or protect Ashford' Lien and security interest in the Collateral.
1.4 OTHER ACTIONS. In addition to the foregoing, Odimo shall do
anything further that may be lawfully and reasonably required by Ashford to
secure Ashford, and effectuate the intentions and objects of this Agreement,
including, without limitation, the execution and delivery of continuation
statements, amendments to financing statements, and any other documents required
hereunder. At Ashford' request, Odimo shall also immediately deliver to Ashford
all items constituting Collateral for which Ashford must receive possession to
obtain a perfected security interest, including, without limitation, all notes,
certificates and documents of title, Chattel Paper, Instruments, and any other
similar instruments constituting Collateral.
1.5 FILING SECURITY AGREEMENT. Subject to applicable law, a carbon,
photographic or other reproduction or other copy of this Agreement or of a
financing statement is sufficient as and may be filed in lieu of a financing
statement.
1.6 LANDLORD/WAREHOUSEMAN WAIVER. Odimo will use its best efforts to
cause each owner of any premises occupied by Odimo or to be occupied by Odimo
and each warehouseman of any warehouse, where, in either event, Collateral is
held, to execute and deliver to Ashford an instrument, in form and substance
reasonably satisfactory to Ashford, under which such owner(s) or warehouseman
subordinates its/his/their interests in and waives its/his/their right to
distrain on or foreclose against the Collateral and agrees to allow Ashford to
remain on such premises to dispose of or deal with any Collateral located
thereon.
1.7 POWER OF ATTORNEY. Each of the officers of Ashford or its
representative is hereby irrevocably made, constituted and appointed the true
and lawful attorney for Odimo (without requiring it to act as such) with full
power of substitution to do the following during such time as an event of
default under the Note ("Event of Default") exists: (a) endorse Odimo's name
upon any and all checks, drafts, money orders and other instruments for the
payment of monies that are payable to Odimo and constitute collections on
Odimo's Accounts or other Collateral; (b) execute in Odimo's name any financing
statements in favor of Ashford; (c) execute in Odimo's name, schedules,
assignments, instruments, documents and statements that Odimo is obligated to
give Ashford hereunder or are necessary to perfect (or continue to evidence the
perfection of) such security interest or Lien; and (d) do such other and further
acts and deeds in Odimo's name that Ashford may reasonably deem necessary or
desirable to enforce any Account or other Collateral or protect Ashford'
security interest or Lien in the Collateral. The power of attorney set forth
herein is coupled with an interest.
SECTION 2 - REPRESENTATIONS AND WARRANTIES
2.1 Odimo represents and warrants that:
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(a) RATIFICATION. Each representation and warranty made by
Odimo (or referred to) in the Asset Purchase Agreement is hereby ratified and
confirmed and incorporated by reference as if set forth herein in full.
(b) PERFECTION. This Agreement is effective to create in favor
of Ashford legal, valid and enforceable Liens and security interests in all of
Odimo's right, title and interest in the Collateral, and when financing
statements have been filed in the offices of the jurisdictions shown on SCHEDULE
2.1(B) attached hereto and made a part hereof under Odimo's name, Ashford will
have perfected Liens and security interests in the Collateral, superior in right
to any and all other Liens, existing or future, other than Permitted Liens as
set forth above.
(c) CHIEF EXECUTIVE OFFICE. Odimo's chief executive office is
located at the address set forth on the first page of this Agreement.
(d) INVENTORY AND EQUIPMENT LOCATION. Odimo keeps its
Inventory and Equipment at the locations set forth on SCHEDULE 2.1(D) attached
hereto and made a part hereof.
SECTION 3 - COVENANTS
3.1 Odimo covenants that until all of its obligations under the
Promissory Note are completely and indefeasibly satisfied in full, that:
(a) RATIFICATION. Each covenant made by Odimo (or referred to)
in the Asset Purchase Agreement is hereby ratified and confirmed and
incorporated by reference as if set forth herein in full.
(b) CHANGE OF LOCATION. Odimo shall give thirty (30) days
prior written notice to Ashford of any change in the location of any Collateral
from that set forth in SCHEDULE 2.1(D) or of any change of its chief executive
office.
(c) INSURANCE. Odimo shall maintain insurance against loss or
damage by fire, explosion and other risks customarily insured against by
companies in similar businesses and shall maintain insurance against other
hazards and risks and liability to persons and property to the extent and in the
manner customary for companies in similar businesses. The policies of all such
insurance shall contain standard Mortgagee and Lender's Loss Payable Clauses
(and, with respect to liability and interruption insurance, additional insured
clauses) issued in favor of Ashford under which all losses thereunder shall be
paid to Ashford as Ashford' interest may appear. Such policies shall expressly
provide that the requisite insurance cannot be altered or canceled without
thirty (30) days prior written notice to Ashford and shall insure Ashford
notwithstanding the act or neglect of Odimo. Odimo hereby irrevocably appoints
Ashford as Odimo's attorney-in-fact (which power is coupled with an interest),
exercisable at Ashford' option to endorse any check (but only a check in excess
of $50,000 if no Event of Default has occurred) which may be payable to Odimo in
order to collect the proceeds of such insurance and
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any amount or amounts collected by Ashford pursuant to the provisions of this
paragraph may be applied by Ashford, in its sole discretion, to repair,
reconstruct or replace the loss of or damage to Collateral as Ashford in its
reasonable judgment may from time to time determine.
(d) SALE OF ASSETS. Odimo will not sell, lease, assign,
transfer or otherwise dispose of any Property other than sales in the ordinary
course of business.
(e) DIVIDENDS. Odimo will not pay any dividends, including
stock dividends, or make any distributions, in cash or otherwise, including
splits of any kind, to any officer, stockholder or beneficial owner of its
securities, other than salaries.
(f) AFFILIATE TRANSACTIONS. Odimo will not enter into any
transaction with, including, without limitation, the purchase, sale or exchange
of property or the rendering of any service to any of its affiliates, except in
the ordinary course of, and pursuant to the reasonable requirements of, Odimo's
business and upon fair and reasonable terms no less favorable to Odimo than
could be obtained in a comparable arm's-length transaction with an unaffiliated
person or entity.
(g) FINANCIAL INFORMATION. Odimo will furnish to Ashford
within forty-five (45) days after the end of each fiscal quarter of Odimo, a
consolidated unaudited balance sheet, income statement and statement of cash
flows as of the end of such period, for the quarterly period then ended and for
the year-to-date period then ended, setting forth in comparative form the
corresponding figures for the comparable period in the preceding fiscal year,
prepared in accordance with GAAP (except that such quarterly statements need not
include footnotes) and certified by Odimo's chief financial officer.
SECTION 4 - REMEDIES
4.1 RIGHTS AND REMEDIES ON DEFAULT. Ashford may, following the
occurrence of an Event of Default, exercise rights and remedies of a secured
party granted to it under the UCC and may exercise all rights and remedies under
any other applicable law, including, without limitation, the following rights
and remedies:
(a) the right to take possession of, send notices, sell and
collect directly the Collateral, with or without judicial process (including,
without limitation, the right to notify the United States postal authority to
redirect all mail addressed to Odimo to an address designated by Ashford);
(b) by its own means or with judicial assistance, enter
Odimo's premises and take possession of the Collateral, or render it unusable,
or dispose of the Collateral on such premises without any liability for rent,
storage, utilities or other sums, and Odimo shall not resist or interfere with
such action;
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(c) require Odimo, at Odimo's expense, to assemble all or any
part of the Collateral and make it available to Ashford at any place designated
by Ashford; and
(d) in its discretion, collect and dispose of all Proceeds
arising from all Accounts and General Intangibles. Ashford may (A) notify
Account Obligors and other obligors of the grant to and creation in favor of
Ashford of the security interest in the Accounts, General Intangibles and the
Proceeds thereof under this Agreement, (B) direct such Account Obligors or other
obligors to make any payments from time to time due in respect of any such
Accounts and General Intangibles directly to Ashford at such places as it
directs and (C) assume entire control over all of the Proceeds of such Accounts
and General Intangibles. Odimo shall promptly remit all such Proceeds then or
subsequently in its possession, and any collections and receipts with respect to
such Proceeds shall be held in trust by Odimo for the benefit of Ashford.
Odimo hereby agrees that a notice received by it at least ten (10) days before
the time of any intended public sale or of the time after which any private sale
or other disposition of the Collateral is to be made, shall be deemed to be
reasonable notice of such sale or other disposition. If permitted by applicable
law, any perishable Inventory or Collateral which threatens to speedily decline
in value or which is sold on a recognized market may be sold immediately by
Ashford without prior notice to Odimo. Ashford shall have the right upon any
such public sale or sales and, to the extent permitted by law, upon any such
private sale or sales, to purchase the whole or any part of the Collateral so
sold free of any equity or right of redemption which Odimo hereby waives. Odimo
covenants and agrees not to interfere with or impose any obstacle to Ashford'
exercise of its rights and remedies with respect to the Collateral after the
occurrence of an Event of Default hereunder.
4.2 LICENSE OF GENERAL INTANGIBLES. For purpose of enabling Ashford to
exercise its rights and remedies hereunder, Odimo hereby grants to Ashford an
irrevocable, nonexclusive license (exercisable without payment of any royalty or
other compensation to Odimo) to use assign, license or sublicense Odimo's
General Intangibles, wherever the same may be located, including in such license
reasonable access to all media in which any General Intangibles may be recorded
or stored and to all computer programs used for the compilation or printout
thereof; provided that Ashford shall comply with all reasonable quality control
standards and trademark use requirements of Odimo. No agreements hereafter
acquired or agreed to or entered into by Odimo shall prohibit, restrict or
impair the rights granted to Ashford hereunder. Notwithstanding the foregoing,
Ashford shall not have any obligations or liabilities regarding Odimo's General
Intangibles by reason of, or arising out of, this Agreement.
4.3 NATURE OF REMEDIES. Ashford shall have the right to proceed against
all or any portion of the Collateral in any order. All rights and remedies
granted Ashford hereunder and under any agreement referred to herein, or
otherwise available at law or in equity, shall be deemed concurrent and
cumulative, and not alternative remedies, and Ashford may proceed with any
number of remedies at the same time until all existing and future obligations
under the Promissory Note are completely and indefeasibly satisfied in
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full. The exercise of any one right or remedy shall not be deemed a waiver or
release of any other right or remedy, and Ashford, upon the occurrence of an
Event of Default, may proceed against Odimo, and/or the Collateral, at any time,
under any agreement, with any available remedy and in any order.
SECTION 5 - MISCELLANEOUS
5.1 NOTICES. All notices, consents or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given (a) when delivered personally, (b) three business
days after being mailed by first class certified mail, return receipt requested,
postage prepaid, or (c) one business day after being sent by a reputable
overnight delivery service, postage or delivery charges prepaid, to the parties
at their respective addresses stated on the first page of this Agreement.
Notices may also be given by facsimile and shall be effective on the date
transmitted if confirmed within 24 hours thereafter by a signed original sent in
the manner provided in the preceding sentence. A copy of each notice to Odimo
shall be simultaneously sent to Xxxxxx Xxxxxxx Xxxxx & Xxxxxxx, P.A., 000
Xxxxxxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, Attn: Xxxxxxx X.
Xxxxxxx. A copy of each notice to Ashford shall be simultaneously sent to: Blank
Rome Comisky & XxXxxxxx LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attn: Xxxxxxx X. Xxxxx, Esquire. Any party may change its address for notice and
the address to which copies must be sent by giving notice of the new addresses
to the other parties in accordance with this Section 5.1, except that any such
change of address notice shall not be effective unless and until received.
5.2 AMENDMENTS AND WAIVERS. This Agreement may be amended, modified or
supplemented by the parties hereto, provided that any such amendment,
modification or supplement shall be in writing and signed by both parties. No
waiver with respect to this Agreement shall be enforceable against either party
unless in writing and signed by such party. Except as otherwise expressly
provided herein, no failure to exercise, delay in exercising, or single or
partial exercise of any right, power or remedy by either party, and no course of
dealing between the parties, shall constitute a waiver of, or shall preclude any
other or further exercise of the same or any other right, power or remedy.
5.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties and their respective successors and assigns. Odimo shall not in any
manner assign any of its rights or obligations under this Agreement without the
express prior written consent of Ashford. Ashford shall not in any manner assign
any of its rights or obligations under this Agreement to (i) any of the
competitors of Odimo listed on SCHEDULE 5.3, (ii) any entity with which Odimo
has engaged in litigation of a material nature which is set forth on SCHEDULE
5.3, or (iii) any entity with which Odimo engages, during this term of this
Agreement, in litigation of a material nature; provided, however, that this
restriction shall only be effective upon written notice by Odimo to Ashford of
any such entity.
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5.4 SEVERABILITY. If any provision of this Agreement is construed to be
invalid, illegal or unenforceable, then the remaining provisions hereof shall
not be affected thereby and shall be enforceable without regard thereto.
5.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall constitute an
original hereof, and it shall not be necessary in making proof of this Agreement
to produce or account for more than one original counterpart hereof.
5.6 SECTION HEADINGS. The section and subsection headings in this
Agreement are for convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
5.7 CONTROLLING LAW. This agreement is made under, and shall be
construed and enforced in accordance with, the laws of the Commonwealth of
Pennsylvania applicable to agreements made and to be performed solely therein,
without giving effect to principles of conflicts of law. EACH OF THE PARTIES (A)
IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF
PENNSYLVANIA, IN ANY AND ALL ACTIONS BETWEEN OR AMONG ANY OF THE PARTIES,
WHETHER ARISING HEREUNDER OR OTHERWISE, (B) IRREVOCABLY WAIVES ITS RIGHT TO
TRIAL BY JURY IN ANY SUCH ACTION, AND (C) IRREVOCABLY CONSENTS TO SERVICE OF
PROCESS BY FIRST CLASS CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, TO THE ADDRESS AT WHICH SUCH PARTY IS TO RECEIVE NOTICE IN ACCORDANCE
WITH SECTION 5.1.
5.8 EXPENSE OF ENFORCEMENT. In the event either party takes any action
to enforce its rights hereunder, the other party shall reimburse such party for
all expenses incurred in connection therewith, including, without limitation,
reasonable attorneys' fees, appraisal fees, accounting fees, copying costs and
travel and lodging expenses.
5.9 SIGNATORIES. Each individual signatory hereto represents and
warrants that he is duly authorized to execute this Agreement on behalf of his
principal and that he executes the Agreement in such capacity and not as a
party.
5.10 NO THIRD PARTY BENEFICIARIES. No provision of this Agreement is
intended to or shall be construed to grant or confer any right to enforce this
Agreement, or any remedy for breach of this Agreement, to or upon any Person
other than the parties hereto, including but not limited to, any lender,
customer, prospect, supplier, employee, contractor, salesman, agent or
representative of any of the parties hereto.
* * * * *
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IN WITNESS WHEREOF, the parties have executed, or have caused this
Agreement to be executed on their behalf by their duly authorized officers, as
of the date first stated above.
ODIMO INCORPORATED
By: /s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: President
XXXXXXX.XXX, INC. ODIMO ACQUISITION CORP.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxxx
-------------------------- -------------------------------------
Name: Xxxxxxx Xxxxx Name: Xxxx Xxxxxx
Title: President Title: President
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