SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement"),
is entered into as
of May 22, 2018,
by and between Ocean Thermal Energy Corporation, a Nevada
corporation (the "Borrower"),
and Xxxxxxx Investments, LLC, a California limited liability
company (the "Secured
Party" or "Secured
Parties"). All capitalized
terms not otherwise defined herein shall the meanings ascribed to
them in that certain Securities Purchase Agreement and Note (as
defined below) by and between Borrower and the Secured Party of
even date (the "Note Purchase
Agreement").
RECITALS
WHEREAS, the Secured Parties have loaned
monies to Borrower,
as more particularly described in the Note Purchase Agreement and
as evidenced by the 12% Convertible Promissory Note in the
principal amount of $281,250.00 issued by Borrower to the Secured
Party (the "Note");
WHEREAS,
the term "Secured Party" as used in this Agreement shall mean,
collectively, all holders of the Note, including those persons who
become holders of Note subsequent to the date hereof;
and
WHEREAS,
this Agreement is being executed and delivered by Borrower to
secure the Note.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties
hereto hereby agrees as follows:
1. Obligations Secured. This
Agreement secures, in part, the prompt payment and performance of
all obligations of Borrower under the Note, and all renewals,
extensions, modifications, amendments, and/or supplements thereto
(collectively, the "Secured Obligations").
2.
Grant of
Security.
a. Collateral.
Borrower hereby grants, pledges, and assigns for the benefit of the
Secured Parties, and there is hereby created in favor of each of
the Secured Parties, a security interest in and to all of
Borrower’s (inclusive of all of borrower’s
subsidiaries) right, title, and interest in, to, and under all of
the collateral set forth on Exhibit A
hereto (collectively,
"Collateral").
b.
Effective
Date.
This
grant of security shall be effective as of the date
hereof
c. Subordination.
The Note and the Secured Obligations shall not be subordinated, or
junior in interest, to any other obligations of
Borrower.
d. Filings to Perfect
Security. The Company will (and
is hereby authorized to) file with any filing office such financing
statements, amendments, addenda, continuations, terminations,
assignments and other records (whether or not executed by Borrower)
to perfect and to maintain perfected security interests in the
Collateral by the Secured Parties, whereby (a) promptly upon the
execution of this Agreement, a Financing Statement on Form UCC-1
(the "Financing
Statement'') shall be filed on
behalf of the Secured Parties with respect to the Collateral; The
Financing Statement shall designate each of the Secured Parties as
a Secured Party and Borrower as the debtor, shall identify
the security interest in the Collateral, and contain
any other items required by law.
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The Financing
Statement shall contain a description of collateral consistent with
the description set
forth herein and shall not describe
the collateral as "all assets" or "all personal
property."
3. Transfers and Other
Liens. Except as set forth
herein or in the Note, Borrower shall not, without the prior
written consent of all of the Secured Parties, at their sole and
absolute discretion:
a.
Sell, transfer, assign, or dispose of (by
operation of law or otherwise), any of the Collateral outside of
the ordinary course of business;
b.
Create
or suffer to exist any lien,
security interest, or other charge or encumbrance upon or with
respect to any of the Collateral, except the security interests
created hereby; or
c
Permit
any of the Collateral to be levied upon under any legal
process.
4. Representations and
Warranties. Borrower hereby
represents and warrants to the Secured Parties as follows: (a) to
Borrower's knowledge, Borrower is the owner of the Collateral (or,
in the case of after-acquired Collateral, at the time Borrower
acquires rights in the Collateral, will be the owner thereat) and
that, except as expressly provided herein, no other person has (or,
in the case of after-acquired Collateral, at the time Borrower
acquires rights therein, will have) any right, title, claim or
interest (by way of Lien or otherwise) in, against or to the
Collateral; (b) to Borrower's knowledge, except as expressly
provided herein, upon the filing of a Financing Statement as
provided herein, the Secured Parties (or in the case of after-
acquired Collateral, at the time Borrower acquires rights therein,
will have) will have a perfected security interest in the
Collateral to the extent that a security interest in the Collateral
can be perfected by such filing; (c) all Accounts Receivable (as
defined in Exhibit
A)
are genuine and enforceable against
the party obligated to pay the same; (d) Borrower has full power
and authority to enter into the transactions provided for in this
Agreement and the Note;
(e) this Agreement and the Note,
when executed and delivered by Borrower, will constitute the legal,
valid and binding obligations of Borrower enforceable in accordance
with their terms; (t) the execution and delivery by Borrower of
this Agreement and the Note
and the performance and consummation
of the transactions contemplated hereby and thereby do not and will
not violate Borrower's Certificate of Incorporation or Bylaws or
any material judgment, order, writ, decree, statute, rule or
regulation applicable to Borrower (g) there does not exist any
default or violation by Borrower of or under any of the terms,
conditions or obligations of (i) any indenture, mortgage, deed of
trust, franchise, permit, contract, agreement, or other instrument
to which Borrower is a party or by which Borrower is bound, or (ii)
any law, ordinance, regulation, ruling, order, injunction, decree,
condition or other requirement applicable to or imposed upon
Borrower by any law, the action of any court or any governmental
authority or agency; and the execution, delivery and performance of
this Agreement will not result in any such default or violation;
(h) there is no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, or demand pending or, to the knowledge of Borrower,
threatened which adversely affects Borrower's business or financial
condition and there is no basis known to Borrower for any action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
or demand which could result in the same; and (i) this Agreement
and the Note
do not contain any untrue statement of
material fact or omit to state a material fact necessary in order
to make the statements contained in this Agreement and the
Note
not misleading.
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5. Events of
Default. For purposes of this
Agreement, the term "Event of Default" shall mean and
refer to any of the following:
a.
Failure of Borrower to perform or observe any covenant set forth in
this Agreement, or to perform or observe any other term, condition,
covenant, warranty, agreement or other provision contained in this
Agreement, where such failure continues for fifteen (15) days after
receipt of written notice from Lender specifying such
failure;
b.
Any representation or warranty made or
furnished by Borrower in writing in connection with this Agreement
and the Note or any statement or representation made in any
certificate, report or opinion delivered pursuant to this Agreement
or in connection with this Agreement is false, incorrect or
incomplete in any material respect at the time it is
furnished; or
c.
Occurrence of any Event of Default as defined in the
Note.
6. Remedies.
Upon the occurrence and during the continuance of an Event of
Default (subject to the notice and cure provisions provided for
herein, if any), each Secured Party shall have the rights of a
secured creditor, all rights granted by the Note, this Security
Agreement and by law, including the right to require Borrower to
assemble the Collateral and make it available to the Secured
Parties at a place to be designated by Borrower. The rights and
remedies provided in this Agreement and the Note are cumulative and
may be exercised independently or concurrently, and are not
exclusive of any other right or remedy provided at law or in
equity. No failure to exercise or delay by the Secured Parties in
exercising any right or remedy under this Agreement or the Note
shall impair or prohibit the exercise of any such rights or
remedies in the future or be deemed to constitute a waiver or
limitation of any such right or remedy or acquiescence therein.
Every right and remedy granted to the Secured Parties under this
Agreement and the Note or by law or in equity may be exercised by
any Secured Party at any time and from time to
time.
7. Further
Assurances. Borrower agrees that, from
time to time, at its own expense, it will:
a.
Protect and defend the Collateral
against all claims and demands of all persons at any time claiming
the same or any interest therein, and preserve and protect Secured
Party's security interest in the Collateral.
b.
Promptly execute and deliver to
Secured Parties all instruments and documents, and take all further
action necessary or desirable, as any Secured Party may reasonably
request to (i) continue, perfect, or protect any security interest
granted or purported to be granted hereby, and (ii) enable a
Secured Party to exercise and enforce any of Secured Party's rights
and remedies hereunder with respect to any
Collateral.
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c.
Permit a Secured Party's
representatives to inspect and make copies of all books and records
relating to the Collateral, wherever such books and records are
located, and to conduct an audit relating to the Collateral at any
reasonable time or times.
8. Notices.
All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed telex, e-mail
or facsimile if sent during normal business hours of the recipient,
if not, then on the next business day, (c) five (5) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (d) one (1) day after deposit with a
nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications
shall be sent as
follows:
If to
the Borrower, to:
OCEAN
THERMAL ENERGY CORPORATION
000
Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX
00000
E-mail:
xxxx@xxxxxxxxxxxxxx.xxx
If to
the Secured Party:
XXXXXXX
INVESTMENTS, LLC
000
Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX
00000
e-mail:
xxxxxx@xxx.xx.xxx
or
to such other address or telecopy number as the party to whom
notice is to be given may have furnished to the other party in
writing in accordance herewith.
10. Amendments and
Waivers. No modification,
amendment or waiver of any provision of, or consent required by,
this Agreement, nor any consent to any departure herefrom, shall be
effective unless it is in writing and signed by each of the parties
hereto. Such modification, amendment, waiver or consent shall be
effective only in the specific instance and for the purpose for
which given.
11. Exclusivity and Waiver
of Rights. No failure to
exercise and no delay in exercising on the part of any party, any
right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right,
power or privilege preclude any other right, power or privilege.
The rights and remedies herein provided are cumulative and are not
exclusive of any other rights or remedies provided by
law.
12. Invalidity.
Any term or provision of this Agreement shall be ineffective to the
extent it is declared invalid or unenforceable, without rendering
invalid or enforceable the remaining terms and provisions of this
Agreement.
13. Headings.
Headings used in this Agreement are inserted for convenience only
and shall not affect the meaning of any term or provision of this
Agreement.
14. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original instrument, but all of which
collectively shall constitute one and
the same agreement.
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15. Assignment.
This Agreement and the rights and obligations hereunder shall not
be assignable or transferable by the any of the parties without the
prior written consent of all Secured Parties, at their sole and
absolute discretion.
16. Survival.
Unless otherwise expressly provided herein, all representations
warranties, agreements and covenants contained in this Agreement
shall survive the execution hereof and shall remain in full force
and effect until the earliest to occur of (a) the payment in full
of the Note, and (b) the conversion of the principal and accrued and unpaid
interest and all other amounts owing under the Note into common
stock of Borrower.
17. Miscellaneous.
This Agreement shall inure to the benefit of each of the parties
hereto and all their respective successors and permitted assigns.
Nothing in this Agreement is intended or shall be construed to give
to any other person, firm or corporation any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision herein contained.
18. GOVERNING
LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEVADA (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAWS PROVISIONS).
19. CONSENT TO
JURISDICTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO
THE NON- EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
CALIFORNIA AND COUNTY OF SAN DIEGO. EACH OF THE PARTIES HERETO
AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MUST BE
LITIGATED EXCLUSIVELY IN ANY SUCH STATE OR FEDERAL COURT, AND
ACCORDINGLY, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH LITIGATION IN ANY SUCH COURT.
20. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH THISAGREEMENT. EACH OF THE PARTIES HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND EACH OF THE OTHER
PARTIES HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
20.
21. Attorneys'
Fees. In the event that any
suit or action is instituted to enforce any provision in this
Agreement, the prevailing party in such dispute shall be entitled
to recover from the losing party all fees, costs and expenses of
enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable
fees and
expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of
appeals.
22.
Entire Agreement. This Agreement contains the entire agreement
among the parties with respect to the transactions contemplated by
this Agreement and supersedes all prior agreements or
understandings among the parties with respect to the subject matter
hereof.
[SIGNATURE
PAGE(S) FOLLOW]
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IN WITNESS
WHEREOF, this Security Agreement has been executed as of the date
first set written above.
“SECURED
PARTY”
XXXXXXX
INVESTMENTS, LLC
By:
/s/ Xxxxx
Xxxxx
Name: Xxxxx
Xxxxx
Title:
Principle
"BORROWER"
OCEAN
THERMAL ENERGY CORPORATION
By:
/s/ Xxxxxx
Xxxxxxx
Name: Xxxxxx
Xxxxxxx
Title: Chief
Executive Officer
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EXHIBIT A
COLLATERAL
Borrower hereby grants,
pledges, and assigns for the benefit of each Secured Party, and
there is hereby created in favor of the Secured Parties, a security
interest in and to all of Borrower's right, title, and interest in,
to, and under all assets and all personal property of Borrower,
whether now or hereafter existing, or now owned or hereafter
acquired, exclusively located in the United States of America,
including but not limited to the following (collectively,
"Collateral"):
1. All
accounts, chattel paper, contracts, contract rights, accounts
receivable, tax refunds, Note receivable, documents, other choses
in action and general intangibles, including, but not limited to,
proceeds of inventory and returned goods and proceeds from the sale
of goods and services, and all rights, liens, securities,
guaranties, remedies and privileges related thereto, including the
right of stoppage in transit and rights and property of any kind
forming the subject matter of any of the foregoing
("Accounts
Receivable");
2.
All time, savings, demand, certificate
of deposit or other accounts in the name of Borrower or in which
Borrower has any right, title or interest, including but not
limited to all sums now or at any time hereafter on deposit, and
any renewals, extensions or replacements of and all other property
which may from time to time be acquired directly or indirectly
using the proceeds of any of the foregoing;
3.
All inventory and equipment of every
type or description wherever located, including, but not limited to
all raw materials, parts, containers, work in process, finished
goods, goods in transit, wares, merchandise furniture, fixtures,
hardware, machinery, tools, parts, supplies, automobiles, trucks,
other intangible property of whatever kind and wherever located
associated with the Borrower's business, tools and goods returned
for credit, repossessed, reclaimed or otherwise reacquired by
Borrower;
4.
All documents of title and other property from time to time
received, receivable or otherwise distributed in respect of,
exchange or substitution for or addition to any of the foregoing
including, but not limited to, any documents of title;
5. All know-how, information, permits, patents,
copyrights, goodwill, trademarks, trade names, licenses and
approvals held by Borrower, including all other intangible property
of Borrower;
6. All assets of any type or description that may at
any time be assigned or delivered to or come into possession of
Borrower for any purpose for the account of Borrower or as to which
Borrower may have any right, title, interest or power, and property
in the possession or custody of or in transit to anyone for the
account of Borrower, as well as all proceeds and products thereof
and accessions and annexations thereto; and
7. All proceeds (including but not limited to
insurance proceeds) and products of and accessions and annexations
to any of the foregoing.
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