SECURITY AGREEMENT
Exhibit
4.4
SECURITY
AGREEMENT
THIS SECURITY AGREEMENT is made and
entered into by and between Flint Telecom Group, Inc., a Nevada Corporation
(“Debtor”), and CHINA VOICE HOLDING
CORP., a Nevada
Corporation, (“Secured Party”).
For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Debtor hereby
grants to Secured Party a security interest in and to the Collateral, as herein
defined, and in connection therewith the parties hereby agree as
follows:
1. Collateral. To
secure payment of the "Indebtedness", as herein defined, Debtor hereby assigns,
transfers and sets over to Secured Party, and grants to Secured Party, a
security interest in and to all of its interest in the “Targets” and “Merger
Subs”, including all of the Common Stock of the “Targets” and “Merger Subs”, as
such terms are defined in the Agreement and Plan of Merger dated January 29,
2009, and any proceeds from the sale or other disposition of the Targets or
Merger Subs (“Collateral”). Certificates evidencing the shares of common stock
described herein shall be held by Secured Party.
2. Indebtedness. The
term "Indebtedness" as used herein, shall mean Debtor’s obligations now existing
or hereinafter arising as a result of Debtor’s execution of the First Amendment
to Stock Purchase Agreement and First Amendment to Agreement and Plan of Merger
dated April 24, 2009 in the original amount of ONE MILLION, EIGHT HUNDRED
THOUSAND AND NO/100 DOLLARS ($1,800,000.00) payable to the order of
Secured Party ("Note"), (b) all rearrangements, increases, renewals and
extensions of the Notes, and (c) Debtor’s obligations to redeem $1,800,000 of
Debtor’s Series C Preferred Stock as required thereby.
3. Subordination of
Indebtedness. The Secured Party hereby agrees to subordinate
its security interest in the Collateral to any future third party that invests
money into the Debtor, as required by that third party and the Debtor, and
approved by the Secured Party, such approval not to be unreasonably
withheld (said lien
or security interest with such third party which Debtor may obtain now or at any
time hereafter in the Collateral is collectively referred to herein as the
"Senior Lien").
4. Priority of Liens.
Notwithstanding the date, time, manner or order of recording, registration,
perfection or attachment of the security interests and liens on the Collateral
granted by Debtor to Secured Party, and notwithstanding the usual application of
the priority provisions of the Uniform Commercial Code as in effect in any
jurisdiction or any other applicable law or judicial decision of any
jurisdiction, or whether the Secured Party holds possession of all or any part
of the Collateral, or if the Secured Party is perfected without filing or
possession in any part of the Collateral, the Senior Lien shall be a first,
senior and prior security interest in and lien on the Collateral, superior to
the Secured Party’s lien, if any. The Secured Party and the Debtor represent and
warrant that the Senior Lien is a first lien on the Collateral.
5. Representations of
Debtor. Debtor represents, warrants and agrees as
follows:
a. No
financing statement or other instrument of hypothecation covering the
Collateral or its proceeds is on file in any public office except in favor of
Secured Party; except for the security interest granted by this Security
Agreement, there is no lien, security interest or encumbrance in or on the
Collateral; and Debtor is the true and lawful owner of the
Collateral.
b. The
Collateral will not be sold or transferred, and will not be pledged or made
subject to a security agreement, except the Senior Lien, without the prior
written consent of Secured Party.
c. Debtor
will sign and execute alone or with Secured Party any financing statement or
other document or procure any document, and pay all costs in connection
therewith necessary to protect the security interest under this Security
Agreement against the rights or interests of third persons except the Senior
Lien.
d. Debtor
will, at Debtor's own expense, do, make, procure, execute and deliver all
acts, things, writings and assurances as Secured Party may at any time
reasonably request to protect, assure or enforce the interests, rights and
remedies of Secured Party created by, provided in or emanating from this
Security Agreement.
e. Until
such time as the Notes are paid in full, the Debtor will honor the terms and
conditions of any other written agreements entered into with the Secured
Party.
f. Debtor
will, when due, pay all taxes and assessments relating to the
Collateral.
6. Uniform Commercial
Code. This Security Agreement shall constitute a valid
and binding security agreement under the Uniform Commercial Code - Secured
Transactions (herein called the "Code") creating in favor of Secured Party,
until the Indebtedness is fully paid, a first and prior security interest in and
to the Collateral. Accordingly, Debtor hereby acknowledges unto
Secured Party that Secured Party shall have, in addition to any and all other
rights, remedies and recourses afforded to Secured Party under this Security
Agreement or the Instruments, all rights, remedies and recourses afforded to
secured parties by the Code.
7. Default by
Debtor. There will be a default under this Security Agreement
upon the happening of any of the following events or conditions which is not
cured within any applicable cure periods contained in the Note or any
instruments securing the Note (herein called an "Event of
Default"):
a. If
any Indebtedness secured by this Security Agreement, either principal or
interest, is not paid when due, subject to any notice and cure provisions
provided for in the Note.
SECURITY
AGREEMENT-Page 2 of 6
b. If
the Debtor shall fail to comply with any of the Debtor's covenants or
undertakings in any agreement, instrument or other document between the Debtor
and the Secured Party, subject to any notice and cure provisions provided for
therein.
c. If
Debtor shall fail to comply with any of Debtor's covenants or agreements herein
and such failure remains uncured for ten (10) days after receipt of written
notice from the Secured Party.
d. If
an order, non-appealable judgment or decree is entered by any court of competent
jurisdiction, upon the application of a creditor or otherwise, adjudicating
Debtor as bankrupt or insolvent or approving a petition seeking reorganization
or appointing a receiver, trustee or liquidator of all or any substantial part
of Debtor's assets and same remains in effect for more than sixty (60)
days.
e. If
any warranty, representation or statement contained in this Security Agreement,
or any agreement, instrument or other document made or furnished to Secured
Party by or on behalf of Debtor in connection with this Security Agreement is
proven under applicable law to have been false in any material respect when made
or furnished.
8. Remedies.
a. When
an Event of Default occurs, and at any time thereafter, Secured Party may
declare all or a part of the Indebtedness immediately due and payable and may
proceed to enforce payment of same and to exercise any and all of the rights and
remedies provided by the Code, as well as all other rights and remedies
possessed by Secured Party under this Security Agreement or otherwise at law or
in equity. If Secured Party’s interests in the Collateral are not
subordinated by a Senior Lien, Secured Party may require Debtor to assemble the
Collateral and make it available to Secured Party at any place to be designated
by Secured Party which is reasonably convenient to both parties. For
purposes of the notice requirements of the Code, Secured Party and Debtor
agree that notice given at least five (5) days prior to the related action
hereunder is reasonable. Secured Party shall be entitled to immediate
possession of the Collateral and all books and records evidencing same and shall
have authority to enter upon any premises, upon which said items may be
situated, and remove same therefrom. Expenses of retaking, holding,
preparing for sale, selling, or the like ("Collection Costs"), shall include,
without limitation, Secured Party's reasonable attorneys' fees and all such
expenses shall be recovered by Secured Party before applying the proceeds from
the disposition of the Collateral toward the Indebtedness. To the
extent allowed by the Code, Secured Party may use Secured Party's discretion in
applying the proceeds of any disposition of the Collateral to the Collection
Costs or to the Indebtedness, and Debtor will remain liable for any deficiency
remaining after such disposition. All rights and remedies of Secured
Party hereunder are cumulative and may be exercised singly or
concurrently. The exercise of any right or remedy will not be a
waiver of any other.
SECURITY
AGREEMENT-Page 3 of 6
b. Secured
Party, in addition to the rights and remedies provided for in the preceding
subparagraph, shall have all the rights and remedies of a secured party under
the Uniform Commercial Code as adopted by the state where the Collateral is
located at the date of any such Event of Default, and Secured Party shall be
entitled to all such other rights and remedies as may now or hereafter exist at
law or in equity for the collection of the Indebtedness and the enforcement of
the covenants herein and the foreclosure of the security interest created hereby
and to resort to any remedy provided hereunder or provided by the Uniform
Commercial Code as adopted in the state where the Collateral is located at the
date of an Event of Default, or by any other law of such state, shall not
prevent the concurrent or subsequent employment of any other appropriate remedy
or remedies.
c. Secured
Party may remedy any default, without waiving same, or may waive any default
without waiving any prior or subsequent default.
9. Secured Party's
Rights.
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a.
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The
Secured Party is authorized to file a financing statement or
statements..
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b. Upon
the occurrence of an Event of Default, Secured Party may execute, sign, endorse,
transfer or deliver, in the name of Debtor, notes, checks, drafts or other
instrument for the payment of money and receipts or any other documents
necessary to evidence, perfect or realize upon the security interest and
obligations created by this Security Agreement.
c. At
Secured Party's option, Secured Party may, after notice to Debtor and Debtor's
failure to do so within ten (10) days after receipt of said notice, discharge
taxes, liens or security interests or other encumbrances at any time levied or
placed on the Collateral, and perform or cause to be performed Debtor's
obligations under the Security Agreement to maintain the same in full force and
effect. Debtor agrees to reimburse Secured Party on demand for any
payment made, or expense incurred, by Secured Party pursuant to the foregoing
authorization, plus interest thereon at the rate of interest provided for in the
Note.
d. No
remedy herein conferred upon or reserved to Secured Party is intended to be or
shall be exclusive of any other remedy, but every remedy herein provided is
cumulative and is in addition to every other remedy given hereunder or in any
instrument executed in connection herewith, or now or hereafter existing at
law or in equity, or by statute; and every such right and remedy may be
exercised from time to time and as often as may be deemed
expedient. No delay or omission by Secured Party to exercise any
right or remedy arising from any default will impair any such right or remedy or
will be construed to be a waiver thereof or of any such default or an
acquiescence therein.
SECURITY
AGREEMENT-Page 4 of 6
10. Release of Security
Interest.
Upon full and complete payment of all
sums owing and to be owing by Debtor to Secured Party and the termination of any
obligations of Debtor under the Security Agreement, together with all costs
incurred in connection therewith, at the request and expense of Debtor, Secured
Party will make, execute and deliver a reassignment of the properties assigned
hereby and of the monies, revenues, proceeds, benefits and payments, if any,
that may be owing upon the aforesaid Collateral to Debtor but without covenant
or warranty, however, of any kind or character, express or implied, and with the
provisions that Secured Party will not be required or called upon to refund or
account for any payments properly made to Secured Party which have been or may
be properly applied to any Indebtedness secured or to be secured
hereby.
11. Validity of Security
Interest. No security taken hereafter as security for payment
of any part or all of the Indebtedness shall impair in any manner or affect this
Security Agreement, all such present and future additional security to be
considered as cumulative security. Any of the Collateral may be
released from this Security Agreement without altering, varying or diminishing
in any way the force, effect, lien, security interest or charge of this Security
Agreement as to the Collateral not expressly released, and this Agreement shall
continue as a lien, security interest and charge on all of the
Collateral not expressly released until all sums and indebtedness secured hereby
have been paid in full.
12. Notices. Any
notice, request or other document shall be in writing and sent by registered or
certified mail, return receipt requested, postage prepaid and addressed to the
party to be notified at the following addresses, or such other address as such
party may hereafter designate by written notice to all parties, which notice
shall be effective as of the date of posting:
(a) If
to Debtor:
0000 Xxxxxxxxx Xx. XX, Xxxxx
0000
Xxxxxxx, XX 00000
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(b)
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If
to the Secured Party:
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000 Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx, 00000
13. Florida
Law. This Security Agreement and the obligations of the
parties hereunder are to be interpreted, construed and enforced in accordance
with the laws of the State of Florida.
14. Severability. If
any provision of this Security Agreement or the application thereof to any
person or circumstance is held to be invalid or unenforceable to any extent, the
remainder of this Security Agreement and the application of such provisions to
other persons or circumstances is not to be affected thereby and is to be
enforced to the full extent permitted by law.
SECURITY
AGREEMENT-Page 5 of 6
15. Successors and
Assigns. This Security Agreement inures to the benefit of, and
is binding upon, Debtor and Secured Party and their respective heirs, legal
representatives, successors and assigns.
16. Gender. The use of
any gender herein shall include the other genders.
17. Scope. Nothing
herein contained will in any way limit or be construed as limiting the right of
Secured Party to collect any note, item, sum or amount secured or to be secured
hereby only out of the properties assigned hereby or out of the revenues,
monies, proceeds, benefits and payments accruing and to accrue unto Debtor,
under and by virtue of said Collateral, but it is expressly understood and
provided that all such Indebtedness and amounts secured and to be secured hereby
are, and shall constitute, absolute and unconditional obligations of Debtor to
pay to Secured Party the amount provided for instruments executed in connection
herewith and all agreements with reference thereto at the time and in the manner
therein specified or provided. Debtor agrees that Debtor will, from
time to time, and upon request of Secured Party, furnish satisfactory proof that
the properties assigned hereby and the revenues, monies, proceeds, benefits and
payments accruing and to accrue under said Collateral are free and clear of all
lawful demands, claims and liens of any and all persons whomsoever, unless and
except for the Senior Lien.
IN WITNESS WHEREOF, this Security
Agreement is dated the 24th day of April, 2009.
DEBTOR
SECURED PARTY
FLINT
TELECOM GROUP
INC. CHINA
VOICE HOLDING CORP.,
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A
Nevada Corporation
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By:
/s/ Xxxxxxx
Xxxxxx
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By: /s/ Xxxx
Xxxxxxx
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Xxxxxxx
Xxxxxx
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Xxxx
Xxxxxxx
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Chief
Executive Officer
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Chief
Executive Officer
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SECURITY
AGREEMENT-Page 6 of 6
