EXHIBIT 10.22
SECURITY AGREEMENT (GENERAL)
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THIS SECURITY AGREEMENT (the "Agreement"), is made as of the 29th day of
December, 1994, by CPS Systems, Inc., a Texas corporation having an address at
0000 Xxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Debtor"), in favor of Xxxxxxx
Xxxxxx Mezzanine Fund, L.P., a Colorado limited partnership having an office at
0000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (which, together with its
successors, endorsees, transferees and assignees, is hereinafter referred to as
"Secured Party").
RECITALS
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A. Secured Party has agreed to make certain financing in an amount not to
exceed $2,100,000 available to Debtor and CPS Acquisition Corp, a Georgia
corporation, ("CPS Acquisition"), which will be merged into Debtor. Such
financing will be evidenced by a promissory note ("Note") of even date herewith
from Debtor and CPS Acquisition to Secured Party and advanced pursuant to the
terms and provisions of the Note Agreement ("Note Agreement") of even date
herewith by and among Debtor, CPS Acquisition and Secured Party. The Note, the
Note Agreement, this Agreement and all other documents evidencing, securing or
in any way related to the indebtedness evidenced by the Note, together with any
and all amendments, modifications, extensions and renewals of any of the
foregoing are collectively referred to herein as the "Financing Documents."
B. As further security for all amounts now or hereafter owing on the Note,
and for all obligations, liabilities and indebtedness of CPS Acquisition and/or
Debtor to Secured Party arising under, out of, pursuant to or in connection
with, the Note, the Note Agreement and the other Financing Documents, and as
further security for the performance of all agreements, covenants, terms and
conditions contained in the foregoing documents and instruments, Debtor has
agreed to grant to Secured Party a security interest in all of the personal
property described in Exhibit A attached hereto and by this reference made a
part hereof, whether now owned by Debtor or hereafter acquired, and all
substitutions or replacements thereof (such personal property, and the proceeds
of any sale, exchange, collection or other transfer thereof, is hereinafter
referred to as the "Collateral").
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C. Secured Party is willing to enter into the financing transaction
described in the Note Agreement only if Debtor executes and delivers this
Agreement.
D. Debtor acknowledges and agrees that the financing provided by Secured
Party in favor of CPS Acquisition and Debtor that is evidenced by the Note will
directly benefit Debtor.
NOW, THEREFORE, in reliance on the recitals above and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENT
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1. Creation of Security Interest. Debtor hereby grants to Secured Party a
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continuing security interest in, and does hereby sell, assign, convey, confirm,
pledge, mortgage and set over unto Secured Party, the Collateral and all of
Debtor's present and hereafter acquired right, title and interest in and to the
Collateral, for the purpose of securing payment of all indebtedness, obligations
and liabilities of CPS Acquisition and/or Debtor to Secured Party arising under,
out of, pursuant to, or in connection with, the Note, the Note Agreement and the
other Financing Documents and for the purpose of securing the performance of all
agreements, covenants, terms and conditions contained in the foregoing documents
and instruments.
2. Warranties, Representations and Covenants of Debtor. Debtor hereby
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warrants, represents and covenants as follows:
(a) Debtor is, and as to portions of the Collateral to be acquired after
the date hereof, will be, the sole owner of the Collateral, free from any lien,
security interest, encumbrance or adverse claim of any kind whatsoever thereon
other than the lien in favor of Greyhound Financial Corporation ("Greyhound"),
granted pursuant to a Security Agreement and certain other security instruments
of even date herewith given by Debtor to Greyhound to secure two loans from
Greyhound in the aggregate principal amount of not more than $2,500,000 (the
"Greyhound Financing"). Except as otherwise provided herein, Debtor will not
permit any financing statement to be filed with respect to the Collateral or any
portion thereof or interest therein except in favor of Secured Party and
Greyhound. Debtor will notify Secured Party of, and
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all persons (other than Greyhound) at any time claiming the same or any interest
therein.
(b) The Collateral is not used or bought for personal, family or household
purposes.
(c) Debtor will, from time to time, upon the request of Secured Party,
execute and deliver one or more financing statements pursuant to the Uniform
Commercial Code as enacted in the jurisdictions in which all or any portion of
the Collateral and Debtor are located (the "UCC") and such additional security
instruments in form reasonably satisfactory to Secured Party and will pay the
cost of filing the same in all public offices wherever filing is deemed by
Secured Party to be reasonably necessary or desirable, and Debtor hereby
authorizes Secured Party and grants to Secured Party an irrevocable power of
attorney to the extent Debtor may lawfully do so to execute in the name and on
behalf of Debtor any such UCC financing statements or other security instruments
if Debtor fails to do so upon the request of Secured Party.
(d) Debtor will not, without the prior written consent of Secured Party,
sell, offer to sell, transfer, exchange, dispose of, lease, or otherwise deal
with the Collateral or any portion or interest therein, unless simultaneously
therewith new items of Collateral, which items shall be similar to those
proposed to be disposed of and which shall be of equal or greater replacement
value, are substituted therefor. All after-acquired personal property covered
hereby and all additions or replacements acquired pursuant to the provisions of
this paragraph shall immediately be and become a part of the Collateral, without
any other act, conveyance or mortgage on the part of Debtor, and not subject to
any other act, conveyance or mortgage on the part of Debtor, and not subject to
any other security interest or lien on such addition or replacement whether
senior or subordinate thereto, unless expressly recited or provided to the
contrary in this Agreement or in the other Financing Documents. If the
Collateral or any part thereof is sold, transferred, exchanged, or otherwise
disposed of, including as provided above, the security interest of Secured Party
shall extend to the proceeds of such sale, transfer, exchange or other
disposition.
(e) Debtor will cause the Collateral at
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all times to be kept insured at its own expense under one or more policies with
such companies, for such periods and amounts, against such risks and
liabilities, and in such form as are reasonably satisfactory from time to time
to Secured Party, with Secured Party as a named insured and with loss payable to
Secured Party and mortgagee clauses attached to all policies in favor of and in
form satisfactory to Secured Party. Such insurance policies shall provide, at a
minimum, for at least thirty (30) days prior written notice to Secured Party of
cancellation, termination, lapse, reduction in amount or material change in
coverage of such policies. Debtor will provide certificates of insurance to
Secured Party, together with evidence of payment of premiums thereon. Debtor
will promptly notify Secured Party of any loss or damage to the Collateral and
will not adjust or settle any such loss or damage without the written consent of
Secured Party. In the event of foreclosure of or sale under this Agreement, all
right, title and interest of Debtor in and to any insurance policies then in
force shall pass to the purchaser at any sale, and Secured Party is hereby
appointed attorney-in-fact for Debtor to assign and transfer the policies.
(f) Debtor will keep the Collateral free from any lien, security interest
or encumbrance (other than with regard to the Greyhound Financing or as
otherwise permitted in the Note Agreement) and in good condition, repair and
operating order and from time to time will promptly make needful and proper
repairs, replacements, renewals, additions, and betterments which may be
required by reason of use, wear, obsolescence, damage or destruction, however
caused, to the end that the good operation, condition and efficiency of the
Collateral shall not be impaired, and will not misuse, abuse, allow to
deteriorate, waste or destroy the Collateral or any part thereof, except for
ordinary wear and tear in the course of its normal and expected use. Debtor will
not use the Collateral in violation of any statute or governmental rule,
regulation or ordinance.
(g) Debtor will pay prior to delinquency all taxes and assessments assessed
against, levied upon, or placed against the Collateral or on account of its
ownership, use or operation, or upon this Agreement, and will deliver to Secured
Party, within ten (10) days after Secured Party's request, a receipt or other
evidence satisfactory to Secured Party of the payment thereof.
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(h) Debtor will execute, alone or with Secured Party, any document, will
procure any document and will do all other acts and pay all related costs, in a
timely and proper manner, which, either pursuant to the terms and provisions of
this Agreement or from the character or use of the Collateral may be reasonably
necessary or advisable to protect the Collateral, against the rights, claims or
interests of third persons, and will otherwise preserve and perfect the
Collateral as security hereunder. The specific undertakings required of Debtor
in this Agreement shall not be construed to exclude the aforementioned general
obligation.
(i) Debtor will furnish promptly to Secured Party such information
concerning the Collateral as Secured Party may from time to time reasonably
request, including, but not limited to accurate and detailed inventories of the
Collateral, and shall permit, and hereby authorizes, Secured Party, its
employees, agents and designees to examine and inspect the Collateral or any
portion thereof at any reasonable time wherever the same may be located and
shall at the request of Secured Party assemble the Collateral or such portion
thereof as may be designated by Secured Party, together with all documents and
records pertaining thereto, at such mutually convenient place as Secured Party
may designate.
3. Preservation of Collateral by Secured Party. Should Debtor refuse to
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make any payment, perform or observe any other covenants, conditions or
obligations, or take any other action which Debtor is obligated hereunder to
make, perform, observe, take or do, at the time or in the manner herein
provided, then Secured Party may, at Secured Party's sole discretion, without
notice to or demand upon Debtor and without releasing Debtor from any
obligation, covenant or condition hereof, make, perform, observe, take or do the
same in such manner and to such extent as Secured Party may deem necessary to
protect its security interest in or the value of the Collateral. Furthermore,
Secured Party may commence, defend, appeal or otherwise participate in any
action or proceeding purporting to affect its security interest in or the value
of the Collateral. Debtor hereby agrees to reimburse Secured Party on demand for
any payment made, or any expense incurred by Secured Party pursuant to the
foregoing authorization (including court costs and reasonable attorneys' fees
and disbursements), and agrees further to pay interest thereon at the default
rate of interest provided for in the Note, from the date of such payment or
expenditure.
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4. Use of Collateral by Debtor. Until an Event of Default (as defined
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below) shall have occurred hereunder, Debtor may have possession of the
Collateral and use it in any lawful manner contemplated in the Financing
Documents and not inconsistent with this Agreement and not inconsistent with any
policy of insurance therefor.
5. Default. The occurrence of any event of default, as defined in the Note
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Agreement, shall constitute an "Event of Default" hereunder.
6. Remedies Upon Default. Upon the occurrence of an Event of Default,
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Secured Party may, in addition to exercising those remedies specified in any
other Financing Document, at any time, at its election, without further notice,
and to the extent permitted by law:
(a) Foreclose this Agreement and the security interest granted hereby,
as herein provided, or in any manner permitted by law, either personally,
through agents or by means of a court appointed receiver, in its sole
discretion, and take possession of all or any of the Collateral and exclude
therefrom Debtor and all others claiming through or under Debtor, and exercise
any and all of the rights and remedies conferred upon Secured Party by the Note,
the Note Agreement and the other Financing Documents or by applicable law,
either concurrently or in such order as Secured Party may determine, and sell,
lease or otherwise dispose of, or cause to be sold, leased or otherwise disposed
of in such order as Secured Party may determine, as a whole or in such parcels
as Secured Party may determine, the Collateral described in this Agreement, or
exercise any of the rights conferred upon the Secured Party by this Agreement,
the Note Agreement, the Note, or the other Financing Documents without affecting
in any way the rights or remedies to which Secured Party may be entitled under
any other Financing Document;
(b) Make such payments and do such acts as Secured Party may deem
reasonably necessary to protect its security interest in the Collateral,
including without limitation, paying, purchasing, contesting or compromising any
encumbrance, charge, claim or lien which is prior to or superior to the security
interest granted hereunder, and, in exercising any such powers or authority, pay
all expenses incurred in connection therewith, and all funds expended by
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Secured Party in protecting its security interest shall be deemed additional
indebtedness secured by this Agreement;
(c) Require Debtor to assemble the Collateral, or any portion thereof,
at any place or places designated by Secured Party, and promptly to deliver such
Collateral to Secured Party, or an agent or representative designated by it;
(d) Publicly or privately sell, lease or otherwise dispose of the
Collateral, without necessarily having the Collateral at the place of sale,
lease or disposition, and upon terms and in such manner as Secured Party may
determine. Secured Party may be a purchaser at any public sale. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, Secured Party will give Debtor
reasonable notice of the time and place of any public sale thereof or of the
time after which any private sale or any other intended disposition thereof is
to be made, and such notice, if given to Debtor pursuant to the provisions of
Paragraph 8 hereof at least ten (10) days prior to the date of any public sale
or disposition or the date after which any private sale or disposition may
occur, shall constitute reasonable notice of such sale, lease or other
disposition;
(e) Notify any account debtor or any other party obligated on or with
respect to any of the Collateral to make payment to Secured Party or its nominee
of any amounts due or to become due thereunder or with respect thereto and
otherwise perform its obligations with respect to the Collateral on behalf of
and for the benefit of Secured Party, and Secured Party may enforce collection
and performance with respect to any of the Collateral by suit or otherwise, in
its own name or in the name of Debtor or a nominee, and surrender, release or
exchange all or any part thereof; and compromise, extend or renew (whether or
not for longer than the original period) or transfer, assign or endorse for
collection or otherwise, any indebtedness or obligation with respect to the
Collateral, or evidenced thereby; and this Agreement shall constitute a
direction of full authority to any person obligated on or with respect to any of
the Collateral who has heretofore dealt or may hereafter deal with Debtor or
Secured Party, at the request and direction of Secured Party, to make payment
and performance directly to, in the name of, and on behalf of Secured Party of
any amounts or performance due or
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to become due thereunder or with respect thereto without proof of the default
relied upon, and any such person is hereby irrevocably authorized to rely upon
and comply with (and shall be fully protected by Debtor in so doing) any
request, notice or demand by Secured Party for the payment to Secured Party of
any payments which may be or may thereafter become due, or for the performance
of any undertakings, and shall have no duty to inquire as to whether any default
hereunder or under the Financing Documents has actually occurred or is then
existing; or
(f) Exercise any remedies of a Secured Party under the UCC or any other
applicable law.
To effectuate the foregoing, Debtor hereby agrees that if the Secured Party
demands or attempts to take possession of the Collateral or any portion thereof
in exercise of its rights and remedies hereunder or under any other Financing
Document, Debtor will promptly turn over and deliver possession thereof to
Secured Party, and Debtor authorizes, to the extent Debtor may now or hereafter
lawfully grant such authority, Secured Party, its employees and agents, and
potential bidders or purchasers to enter upon any or all of the premises where
the Collateral or any portion thereof may at the time be located (or believed to
be located) and Secured Party may (i) remove the same therefrom or render the
same inoperable (with or without removal from such location), (ii) repair,
operate, use or manage the Collateral or any portion thereof, (iii) maintain,
repair or store the Collateral or any portion thereof, (iv) view, inspect and
prepare for sale, lease or disposition the Collateral or any portion thereof,
(v) sell, lease, dispose of or consume the same or bid thereon, or (vi)
incorporate the Collateral or any portion thereof into any real estate owned by
Debtor.
In the event of an Event of Default and the exercise by Secured Party of
any of its rights hereunder, Debtor hereby agrees to indemnify and hold harmless
Secured Party and its employees, officers and agents, from and against any and
all liabilities, claims and obligations which may be incurred, asserted or
imposed upon them or any of them as a result of or in connection with any use,
operation, lease or consumption of any of the Collateral or as a result of
Secured Party's seeking after the occurrence of an Event of Default to obtain
performance of any of the obligations due with respect to the Collateral, except
such liabilities, claims or
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obligations as result from the gross negligence or intentional misconduct of
Secured Party, its employees, officers or agents.
The proceeds of any sale under this Paragraph 6 shall be applied by Secured
Party to the payment or reduction of the principal and interest under the Note
in such order, priority and proportions as Secured Party shall deem appropriate
in its sole and absolute discretion.
Secured Party shall have the right to enforce one or more remedies
hereunder or under the Financing Documents, successively or concurrently, and
such action shall not operate to estop or prevent Secured Party from pursuing
any further remedy which it may have, and any repossession or retaking or sale
of the Collateral pursuant to the terms hereof shall not operate to release
Debtor until full payment of any deficiency has been made in cash.
7. Remedies Cumulative. Any and all remedies herein expressly conferred
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upon Secured Party shall be deemed cumulative with, and not exclusive of, any
other remedy conferred hereby or by law or equity on Secured Party, and the
exercise of any one remedy shall not preclude the exercise of any other.
8. Notices. Any notice, request, demand, statement, authorization,
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approval, consent or acceptance made hereunder shall be in writing and shall be
hand delivered, sent by facsimile, sent by Federal Express or other reputable
overnight courier service, or by registered or certified mail, return receipt
requested, postage prepaid and shall be deemed given (i) when received, if hand
delivered, (ii) when a confirmation slip indicates the facsimile was received,
if sent by facsimile, or (iii) the next business day when sent by Federal
Express or other reputable overnight courier service for next day delivery. All
such notices shall be sent to Debtor and Secured Party as follows:
If to Debtor: CPS Systems, Inc.
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxx
Facsimile No. (000) 000-0000 or
(000) 000-0000
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with a copy to: Xxxxx, Xxxx & Xxxxxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile No. (000) 000-0000
If to Secured Party: Xxxxxxx Xxxxxx
Mezzanine Fund, L.P.
c/x Xxxxxxx Xxxxxx
Capital Partners
0000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile No. (000) 000-0000
with a copy to: Holme Xxxxxxx & Xxxx LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Facsimile No. (000) 000-0000
Each party may designate a change of address by notice to the other party, given
as provided above.
9. Waivers. Secured Party may at any time and from time to time waive any
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one or more of the conditions contained herein, but any such waiver shall be
deemed to be made in pursuance hereof and not in modification thereof, and any
such waiver in any instance or under any particular circumstance shall not be
effective unless in writing and shall not be considered a waiver of such
condition in any other instance or any other circumstance.
10. Affixed Collateral. The inclusion in this Security Agreement of any
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Collateral which may now be, or hereafter become, affixed or in any manner
attached to any real property given as security for the Note shall be without
prejudice to any claim at any time made by Secured Party that such Collateral
is, or has become, a part of such real property, or an accession to such real
property.
11. Time of Essence. Time is of the essence of this Agreement and all of
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its provisions.
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12. Binding Upon Successors. All agreements, covenants, conditions and
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provisions of this Agreement shall inure to and bind the successors and assigns
of all parties hereto (except as otherwise prohibited by this Agreement). The
term "Secured Party" shall also include any and all successors of Secured Party
and any endorsees, transferees, and assigns of the indebtedness secured hereby.
13. Construction of Agreement. The titles and headings of the paragraphs of
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this Agreement have been inserted for convenience of reference only and are not
intended to summarize or otherwise describe the subject matter of such
paragraphs and shall not be given any consideration in the construction of this
Agreement.
14. Modification. This Agreement may not be modified, amended or
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terminated, except by an agreement in writing executed by the parties hereto.
Debtor acknowledges that this Agreement and the other Financing Documents set
forth the entire agreement and understanding of Secured Party, CPS Acquisition
and Debtor with respect to the financing evidenced by the Note and that no oral
or other agreements, understanding, representations or warranties exist with
respect to such financing other than those set forth in this Agreement and the
other Financing Documents.
15. Severability. If any term, covenant or provision of this Agreement
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shall be held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such term, covenant or provision.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED UNDER THE
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LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO COLORADO'S CONFLICTS OF LAW
PRINCIPLES, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT PERFECTION OR THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE
SECURITY INTEREST CREATED HEREBY IS GOVERNED BY THE LAW OF A JURISDICTION OTHER
THAN THE STATE OF COLORADO.
17. Obligations Absolute. Debtor acknowledges that this Agreement and
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Debtor's obligations under this Agreement are and shall at all times continue to
be absolute and unconditional in all respects, and shall at all times be valid
and enforceable irrespective of any other agreements or circumstances of any
nature which might otherwise constitute a
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defense to this Agreement and the obligations of Debtor under this Agreement or
the obligations of any other person or party relating to this Agreement or the
obligations of Debtor hereunder or otherwise with respect to the financing
evidenced by the Note. This Agreement sets forth the entire agreement and
understanding of Secured Party and Debtor, and Debtor absolutely,
unconditionally and irrevocably waives any and all right to assert any defense,
setoff, counterclaim or crossclaim of any nature whatsoever with respect to this
Agreement or the obligations of Debtor under this Agreement or the obligations
of any other person or party relating to this Agreement or otherwise with
respect to the financing evidenced by the Note in any action or proceeding
brought by Secured Party to collect the indebtedness secured hereby, or any
portion thereof, or to enforce, foreclose and realize upon the liens and
security interests created by this Agreement and the other Financing Documents.
18. Jurisdiction. Debtor agrees to submit to personal jurisdiction in the
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State of Colorado in any action or proceeding arising out of this Agreement and,
in furtherance of such agreement, Debtor hereby agrees and consents that without
limiting other methods of obtaining jurisdiction, personal jurisdiction over
Debtor in any such action or proceeding may be obtained within or without the
jurisdiction of any court located in Denver, Colorado and that any process or
notice of motion or other application to any such court in connection with any
such action or proceeding may be served upon Debtor by registered or certified
mail to or by personal service at the address set forth above whether such
address be within or without the jurisdiction of any such court.
19. Authority. Debtor represents that Debtor (and the undersigned
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representative of Debtor, if any) has full power, authority and legal right to
execute and deliver this Agreement.
20. Conflict with Greyhound Financing/Intercreditor Agreement. This
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Agreement and all Financing Documents are subject to the following:
(a) TO THE EXTENT THAT ANY REQUIREMENT, COVENANT OR AGREEMENT CONTAINED
HEREIN IS ALSO REQUIRED BY OR REFERRED TO IN THE DOCUMENTS SETTING OUT THE
GREYHOUND FINANCING, COMPLIANCE WITH SUCH REQUIREMENT, COVENANT OR
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AGREEMENT IN THE GREYHOUND FINANCING SHALL BE DEEMED TO BE COMPLIANCE WITH SUCH
REQUIREMENT, COVENANT OR AGREEMENT IN THIS SECURITY AGREEMENT AND/OR THE OTHER
FINANCING DOCUMENTS, EVEN IF THERE IS NO ACTUAL COMPLIANCE UNDER THE FINANCING
DOCUMENTS; AND
(b) UNTIL THE GREYHOUND FINANCING IS FULLY SATISFIED, SECURED PARTY
AGREES TO FORBEAR FROM THE EXERCISE OF ANY REMEDY IT HAS HEREUNDER, UNDER THE
OTHER FINANCING DOCUMENTS OR BY LAW TO THE EXTENT BUT ONLY TO THE EXTENT
REQUIRED IN THE SUBORDINATION AND INTERCREDITOR AGREEMENT, DATED AS OF THE DATE
HEREOF, AMONG SECURED PARTY, GREYHOUND, DEBTOR AND CPS ACQUISITION.
21. Waiver of Jury Trial. Debtor hereby irrevocably and unconditionally
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waives, and Secured Party by its acceptance of this Agreement irrevocably and
unconditionally waives, any and all right to trial by jury in any action, suit
or counterclaim arising in connection with, out of or otherwise relating to this
Agreement, the Note Agreement or the other Financing Documents.
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
DEBTOR:
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CPS SYSTEMS, INC., a
Texas corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
----------------------------
Title: President
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STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this 30th day of
December, 1994, by Xxxx X. Xxxx as President of CPS Systems, Inc., a Texas
corporation, on behalf of said corporation.
WITNESS my hand and official seal.
(SEAL) /s/ Xxxxx X. Xxxxx
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Notary Public
My commission expires: ------[NOTARY PUBLIC SEAL APPEARS HERE]
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EXHIBIT A
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(Attached to and forming part of a Security Agreement, dated as
of December 29, 1994, by and between Xxxxxxx Xxxxxx Mezzanine
Fund, L.P., a Colorado limited partnership ("Secured Party") and
CPS Systems, Inc. ("Debtor")
DESCRIPTION OF PERSONAL PROPERTY
--------------------------------
All of the following property now or at any time hereafter owned by Debtor
or in which the Debtor may now or at any time hereafter have any interest or
rights, together with all of Debtor's rights, title and interest therein and
thereto:
1. All goods of Debtor, including, without limitation, all machinery,
apparatus, equipment, fittings, fixtures, appliances, furnishings, inventory,
supplies and articles of personal property of every kind and nature whatsoever,
including, but not limited to, all customer lists, business records, supplies,
alarm systems, security systems, electronic monitoring equipment and devices,
all office furniture, equipment and supplies, all computer equipment, including,
without limitation, hard drives, printers, modems, terminals and connecting
blocks, cable and jacks, all communications equipment, studio equipment and
stereo equipment, all equipment used in the operation and/or maintenance of
Debtor's business, all cars, trucks, forklifts and other motor vehicles of any
kind and nature whatsoever owned or leased by Debtor and used in connection with
the operation of Debtor's business, all other supplies and inventories, all of
Debtor's right, title and interest as lessee or purchaser under any lease or
installment purchase arrangement for any televisions, telephones, communications
equipment, computer equipment and other equipment of any kind and nature
whatsoever used in connection with the operation of Debtor's business, and all
other tangible personal property and intangibles of any kind or character as
such term is defined in and subject to the provisions of the Colorado Uniform
Commercial Code.
2. All governmental or administrative permits, licenses, certificates,
consents and approvals relating to Debtor's business.
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3. All proceeds of or any payments due to or for the account of Debtor
under any policy of insurance (or similar agreement) insuring, covering or
payable upon loss, damage, destruction or other casualty or occurrence of or
with respect to any of the foregoing described Collateral, whether or not such
policy or agreement is owned or was provided by Debtor or names Debtor or
Secured Party as beneficiary or loss payee and all refunds of unearned premiums
payable to Debtor on or with respect to any such policies or agreements.
4. All goodwill, trademarks, trade names, names, option rights, purchase
contracts and agreements, books and records and general intangibles of Debtor
including, without limitation, all accounts, accounts receivable, deposit
accounts, money, contract rights, chooses in action, instruments, chattel paper,
documents and other rights of Debtor for payment of money for property sold or
leased, for services rendered, for money lent, or for advances or deposits made,
and any other intangible property of Debtor including, without limitation, any
and all rights of Debtor in, to or with respect to any and all accounts
maintained with Secured Party or any other party in which are held funds
relating to the indebtedness of Debtor to Secured Party and any and all of
Debtor's right, title and interest in and to any judgment, award, remuneration,
settlement, compensation, recovery or proceeds heretofore or hereafter made by
any governmental authority including those for any condemnation or right of
eminent domain, and all rights, privileges, authority and benefits therein (but
under no circumstances any of the liabilities, obligations or responsibilities
thereto).
5. All proceeds of, substitutions and replacement for, accessions to and
products of any of the foregoing in whatever form, including, without
limitation, cash, checks, drafts and other instruments for the payment of money
(whether intended as payment or credit items), chattel paper, security
agreements, documents of title and all other documents and instruments.
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