SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made and dated this 12th day
of December, 2005, by and between Knight Xxxxxx, Inc., a Delaware corporation
(the "Debtor"), and Montage Partners III, LLC, a Nevada limited liability
company (the "Secured Party").
RECITALS
A. Subject to the security arrangements provided below, Secured Party and
Debtor have agreed to enter into a Securities Purchase Agreement (the "Purchase
Agreement"), pursuant to which Secured Party has agreed to accept that certain
Secured Debenture in the principal amount of $500,000, dated even herewith, by
Debtor (the "Debenture") (all of the obligations of Debtor under the Debenture
are collectively referred to herein as the "Debt").
B. Secured Party is willing to enter into the Purchase Agreement with
Debtor and accept the Debenture, but only if Debtor's Debt is secured. Debtor is
willing to grant as security for the Debt a security interest in the
"Collateral," as hereinafter provided. Secured Party is willing to accept the
same as security for Debtor's obligations under the Debenture.
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. Grant of Security Interest. Debtor hereby assigns to Secured Party and
hereby grants to Secured Party a security interest in the property described in
Paragraph 2 below (collectively and severally, the "Collateral") to secure
payment and performance of the obligations of Debtor to Secured Party described
in Paragraph 3 below (collectively and severally, the "Obligations").
2. Collateral. The Collateral shall consist only of the following:
(i) All present and future accounts (including all accounts
receivable and all health-care-insurance receivables) owned by the Debtor,
including any and all contract rights and security deposits that relate to the
foregoing accounts receivable (where not otherwise prohibited by law or
agreement), together with all agreements, customer lists, client lists,
invoices, agings, verification reports and other records relating in any way to
such accounts receivable (the "Receivables"); and
(ii) Any and all proceeds of the items described in Section 2(i) or
of the Debtor's beneficial interest therein. For purposes of this Agreement, the
term "proceeds" includes whatever is receivable or received when Collateral is
sold, collected, exchanged or otherwise disposed of, whether such disposition is
voluntary or involuntary.
Notwithstanding the foregoing, Debtor may subsequently exclude accounts
receivable to the extent that they are not directly attributable to the Debtor's
rental of musical equipment, rental of its rehearsal facility and/or its on-site
technical support for television shows, and on the condition that
notwithstanding such exclusion, the value of the then current Receivables
remaining as Collateral shall not be less than $750,000.
3. Obligations. The Obligations of Debtor secured by this Agreement shall
consist of any and all debts, obligations and liabilities of Debtor to Secured
Party arising out of the Debenture, the Purchase Agreement, the Registration
Rights Agreement (as defined in the Purchase Agreement) and the Warrants (as
defined in the Purchase Agreement), and all amendments or extensions or renewals
of any of the same, whether now existing or hereafter arising, voluntary or
involuntary, whether or not jointly owed with others, direct or indirect,
absolute or contingent, liquidated or unliquidated, and whether or not from time
to time decreased or extinguished and later increased, created or incurred.
4. Additional Representations and Warranties. In addition to all
representations and warranties of Debtor set forth in the Purchase Agreement
which are incorporated herein by this reference, Debtor hereby represents and
warrants that as of the date hereof:
(a) Debtor is the sole owner of the Collateral (or, in the case of
after-acquired Collateral, at the time Debtor acquires rights in the Collateral,
will be the owner thereof) and that no other person has (or, in the case of
after-acquired Collateral, at the time Debtor acquires rights therein, will
have) any right, title, claim or interest (by way of security interest or other
lien or charge or otherwise) in, against or to the Collateral.
(b) This Agreement grants to Secured Party a valid and enforceable
lien on the Collateral which is or will be a first priority and perfected lien
on the Collateral.
(c) All information heretofore, herein or hereafter supplied to
Secured Party by or on behalf of Debtor with respect to the Collateral or
otherwise is or will be true and correct in all material respects.
(d) No third party has any defense, set-off, claim or counterclaim
against Debtor which can be validly asserted against Secured Party, whether in
any proceeding to enforce Secured Party's rights in the Collateral or otherwise.
5. Covenants of Debtor. In addition to all covenants and agreements of
Debtor set forth in the Debenture which are incorporated herein by this
reference, Debtor hereby agrees as follows:
(a) Debtor agrees to do all acts that may be necessary to maintain,
preserve and protect the Collateral.
(b) Debtor agrees not to use or permit any of the Collateral to be
used unlawfully or in violation of any provision of this Security Agreement, or
any applicable statute, regulation or ordinance covering the Collateral.
(c) Debtor agrees to pay all taxes, assessments, charges,
encumbrances and liens now or hereafter upon or affecting any of the Collateral
prior to the time the same become delinquent, except for those being contested
in good faith by appropriate proceedings and for which the Debtor has provided
adequate reserves.
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(d) Debtor agrees to execute and deliver from time to time any
financing statements reasonably deemed necessary or appropriate by Secured Party
to perfect, maintain and protect its security interest hereunder and the
priority thereof.
(e) Debtor agrees to appear in and defend any action or proceeding
which may affect its title to or Secured Party's interest in the Collateral.
(f) Debtor agrees to keep separate, accurate and complete records of
the Collateral and to provide Secured Party with such records and such other
reports and information relating to the Collateral that are in the possession of
or available to Debtor as Secured Party may reasonably request from time to
time.
(g) Except for collection of Receivables in the ordinary cause of
its business, Debtor agrees not to surrender or lose possession of, or sell,
encumber, or otherwise dispose of or transfer any of the Collateral or right or
interest therein and to keep the Collateral free of all levies and security
interests or other liens, charges, preferences or priorities, except those
approved in writing by Secured Party in its sole and absolute discretion.
(h) Upon an Event of Default (as defined in Paragraph 7 below)
occurring and for so long as such Event of Default remains uncured, Debtor
agrees to account fully for and promptly deliver to Secured Party, in the form
received, all proceeds of the Collateral received, endorsed to Secured Party as
appropriate, and until so delivered all proceeds shall be held by Debtor in
trust for Secured Party, separate from all other property of Debtor and
identified as the property of Secured Party.
(i) Debtor agrees to keep Debtor's records concerning the Collateral
at the location set forth in Paragraph 18 below and not to remove the records
concerning the Collateral from such location without the prior written consent
of Secured Party.
6. Secured Party Appointed Attorney-in-Fact. Debtor hereby irrevocably
appoints Secured Party as its attorney-in-fact to do (but Secured Party shall
not be obligated to and shall incur no liability to Debtor or any third party
for failure so to do), at such time as there has occurred an Event of Default,
any act which Debtor is obligated by this Security Agreement to do, and to
exercise such rights and powers as Debtor might exercise with respect to the
Collateral, including without limitation, the right to (a) collect by legal
proceedings or otherwise and endorse, receive and receipt for all dividends,
interest, payments, proceeds and other sums and property now or hereafter
payable on or on account of the Collateral; (b) enter into any extension,
reorganization, deposit, merger, consolidation or other agreement pertaining to,
or deposit, surrender, accept, hold or apply other property in exchange for the
Collateral; (c) insure, process and preserve the Collateral; (d) transfer the
Collateral to its own or its nominee's name; (e) make any compromise or
settlement, and take any action it deems advisable, with respect to the
Collateral and (f) execute financing statements on Debtor's behalf, and on its
behalf to file financing statements signed by Secured Party and/or Debtor in any
appropriate public office. Debtor agrees to reimburse Secured party upon demand
for any costs and expenses, including, without limitation, reasonable attorneys'
fees, which Secured Party may incur while acting as Debtor's attorney-in-fact
hereunder or while otherwise enforcing this Agreement, all of which costs and
expenses are included in the Obligations secured hereby. It is further agreed
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and understood between the parties hereto that such care as Secured Party gives
to the safekeeping of its own property of like kind shall constitute reasonable
care of the Collateral when in Secured Party's possession; provided, however,
that secured Party shall not be required to make any presentment, demand or
protest, or give any notice and need not take any action to preserve any rights
against any other person in connection with the Obligations or with respect to
the Collateral.
7. Events of Default.
Each of the following shall constitute an "Event or Default"
hereunder:
(a) An Event of Default occurs under the Debenture.
(b) Debtor fails to cure a breach of any of its obligations under
this Agreement within ten calendar (10) days after written notice from Secured
Party of said default.
(c) Any of Debtor's representations or warranties herein is untrue
or misleading in any material respect.
8. Remedies.
(a) Upon the occurrence of any Event of Default, Secured Party may,
at its option, and without notice to or demand on Debtor and in addition to all
rights and remedies available to Secured Party under the Debenture, at law or in
equity or otherwise, may elect to do any one or more of the following: (i)
foreclose or otherwise enforce Secured Party's security interest in any manner
permitted by law, or as provided for in this Agreement; (ii) sell, transfer, or
otherwise dispose of any Collateral at one or more public but not private sales,
whether or not such Collateral is present at the place of sale, for cash or
credit or future delivery, on such terms and in such manner as Secured Party may
reasonably determine; (iii) recover from Debtor all reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees, incurred or
paid by Secured Party in exercising any right, power or remedy provided by this
Security Agreement or by law; (iv) require Debtor to assemble records relating
to the Collateral and make them available to Secured Party at a place to be
designated by Secured Party; (v) enter onto property where any Collateral or
records relating thereto are located and take possession thereof with or without
judicial process; and (vi) prior to the disposition of the Collateral, prepare
it for disposition in any manner and to the extent Secured Party deems
appropriate. Secured Party may bid for its own account at any public sale of the
Collateral. Upon any sale or other disposition pursuant to this Security
Agreement, Secured Party shall have the right to deliver, assign and transfer to
the purchaser thereof the Collateral so sold or disposed of. Debtor expressly
waives any constitutional or other right to a judicial hearing prior to the time
Secured Party takes possession of the Collateral upon defaults as provided
herein.
(b) In addition to the remedies set forth in subparagraph (a) of
this Paragraph 7, from and after the occurrence of an Event of Default, any cash
held by the Secured Party as Collateral, and all cash proceeds received by the
Secured Party in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, in the discretion of the Secured
Party, be held by the Secured Party as collateral. The proceeds of all sales and
collections in respect of any Collateral shall be applied first to the payment
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of any amounts payable to the Secured Party pursuant to Paragraph 11 hereof,
next to the payment or prepayment in full of, first, accrued interest included
in the Obligations, second, principal included in the Obligations, and third,
all other amounts included in the Obligations, and finally to the payment to the
Debtor or such other person or entity legally entitled thereto, any surplus
remaining from such cash or cash proceeds.
9. Termination. This Agreement shall terminate following the full
satisfaction of all of the Obligations.
10. Cumulative Rights. The rights, powers and remedies of Secured Party
under this Agreement shall be in addition to all rights, powers and remedies
given to Secured Party by virtue of any statute or rule of law, the Debenture,
the Purchase Agreement, or any other agreement, all of which rights, powers and
remedies shall be cumulative and may be exercised successively or concurrently
without impairing Secured Party's security interest in the Collateral.
11. Expenses. Upon an Event of Default, Debtor will pay on demand to the
Secured Party all reasonable costs and expenses, including, without limitation,
reasonable attorneys' fees (including, without limitation, the reasonable
estimate of the allocated cost of in house legal counsel) incurred by the
Secured Party in connection with (i) the custody or preservation of, or the sale
of, collection from, or other realization upon, any of the Collateral; (ii) the
exercise or enforcement of any of the rights of the Secured Party hereunder; or
(iii) the failure by Debtor to perform or observe any of the provisions hereof.
12. Waiver. Any forbearance or failure or delay by Secured Party in
exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy of Secured Party shall continue in
full force and effect until such right, power or remedy is specifically waived
in a writing executed by Secured Party. Debtor waives any right to require
Secured Party to proceed against any person or to exhaust any Collateral or to
pursue any remedy in Secured Party's power.
13. Set-off. Debtor agrees that Secured Party may exercise its rights of
set-off with respect to the Obligations in the same manner as if the Obligations
were unsecured.
14. Binding Upon Successors. All rights of Secured Party under this
Security Agreement shall inure to the benefit of its successors and assigns, and
all obligations of Debtor shall bind its heirs, executors, administrators and
successors.
16. Entire Agreement: Severability. This Agreement and the Debenture
contain the entire security agreement between Secured Party and Debtor. To the
extent that any provision of law would invalidate or render unenforceable any
provision of this Agreement, Debtor waives such provision of law to the full
extent possible. This waiver and all waivers by Debtor provided for in this
Agreement have been specifically negotiated by the parties with full cognizance
and understanding of their rights. If any of the provisions of this Agreement
shall be held invalid or unenforceable, this Agreement shall be construed as if
not containing those provisions and the rights and obligations of the parties
hereto shall be construed and enforced accordingly.
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17. Choice of Law. This Agreement shall be construed in accordance with
and governed by the internal laws of the State of California, and, where
applicable and except as otherwise defined herein, the terms used herein shall
have the meanings given them in the California Uniform Commercial Code.
18. Address; Trade Names; Records. Debtor represents that its chief place
of business is 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 and that Debtor's
records concerning the Collateral are kept at Debtor's chief place of business
listed above.
19. Notices. Any written notice, consent or other communication provided
for in this Security Agreement shall be given in accordance with the Debenture.
20. Captions. All captions used in this Security Agreement are for
convenience only and shall not affect the construction of this Security
Agreement.
21. Modifications. No modification or amendment of this Security Agreement
shall be effective unless in writing and signed by the parties sought to be
charged or bound hereby.
IN WITNESS WHEREOF, Secured Party and Debtor have executed this Security
Agreement as of the date first written above.
SECURED PARTY
KNIGHT XXXXXX, INC.
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Chief Financial Officer
DEBTOR
MONTAGE PARTNERS III, LLC
a Nevada limited liability company
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title:
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