SECURITY AGREEMENT
THIS
SECURITY AGREEMENT
(the
“Agreement”), is
entered into and made effective as of July 29, 2008, by and between NEOMEDIA
TECHNOLOGIES INC., a
Delaware corporation with its principal place of business located at Xxx
Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (the “Company”),
and
any subsidiaries of the Company who became a party to this Agreement pursuant
to
Section 6.13 (together with the Company, singularly a “Grantor”,
and
collectively the “Grantors”),
in
favor YA
GLOBAL INVESTMENTS, L.P.
(the
“Secured
Party”).
WHEREAS,
the
Secured Party is the holder of certain secured convertible debentures and notes,
and other evidence of indebtedness issued by the Company to the Secured Party
as
set forth on Schedule A attached hereto (as may be amended, supplemented and
restated from time to time, the “Original
Debentures”);
WHEREAS,
in
connection with the Securities Purchase Agreement by and among the Company
and
the Secured Party of even date herewith (the “Securities
Purchase Agreement”),
the
Company has agreed, upon the terms and subject to the conditions of the
Securities Purchase Agreement, to issue to the Secured Party (i) an aggregate
original principal amount of $8,650,000 of senior secured convertible debentures
(the “Convertible
Debentures”),
which
shall be convertible into shares of the Company’s Common Stock (the
“Conversion
Shares”);
and
(ii) warrants (the “Warrants”)
to be
exercisable to acquire additional shares of Common Stock (the “Warrants
Shares”)
initially in that number of shares of Common Stock set forth in the Securities
Purchase Agreement;
WHEREAS,
the
Secured Party and the Company are parties to the following (collectively, the
“Prior
Debt Documents”):
the
Original Debentures, the Security Agreement dated August 24, 2007, and any
other
existing security agreements, guaranty agreements, pledge agreements, credit
agreement or other facility, mortgage, other debenture agreements or
instruments, by and between the Secured Party and the Company and the other
Grantors, under which there may be issued, or by which there may be secured
or
evidenced any indebtedness for borrowed money or evidencing any outstanding
obligation of the Company to the Secured Party, and any other existing documents
executed in connection with any of the foregoing; and
WHEREAS,
it
is a
condition precedent to the Secured Party purchasing the Convertible Debentures
and Warrants pursuant to the Securities Purchase Agreement that the Grantors
shall have executed and delivered to the Secured Party this Agreement providing
for the grant to the Secured Party of a security interest in all personal
property of each Grantor to secure all of the Company's obligations under the
Securities Purchase Agreement, this Agreement, the Convertible Debentures,
the
Warrants, the Prior Debt Documents, any other mortgages, pledges, or other
collateral documents and any UCC-1 financing statement required by the Secured
Party, and any amendment, amendment and restatement, modification or supplement
to any of the foregoing (collectively, the “Transaction
Documents”);
NOW,
THEREFORE, in
consideration of the promises and the mutual covenants herein contained, and
for
other good and valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE
1.
DEFINITIONS
AND INTERPRETATIONS
Section
1.1. Recitals.
The
above recitals are true and correct and are incorporated herein, in their
entirety, by this reference.
Section
1.2. Interpretations.
Nothing
herein expressed or implied is intended or shall be construed to confer upon
any
person other than the Secured Party any right, remedy or claim under or by
reason hereof.
Section
1.3. Definitions. Reference
is hereby made to the Securities Purchase Agreement and the Convertible
Debentures for a statement of the terms thereof. All capitalized terms used
in
this Agreement and the recitals hereto and not defined herein shall have the
meanings set forth in the Securities Purchase Agreement, the Convertible
Debentures, or in Articles 8 or 9 of the Uniform Commercial Code as in effect
from time to time in the State of New Jersey (the "Code").
Section
1.4. Other
Definitions.
As used
in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular
and
plural forms of such terms:
“Event
of Default”
shall
mean the occurrence of a default or breach under (i) this Agreement, and (ii)
any other Transaction Document.
ARTICLE
2.
PLEDGED
PROPERTY
Section
2.1. Grant
of Security Interest.
(a) As
collateral security for all of the Obligations (as defined in Section
2.2
hereof),
each Grantor hereby pledges and assigns to the Secured Party, and grants to
the
Secured Party for its benefit, a continuing security interest in and to all
personal property of each Grantor, wherever located and whether now or
hereinafter existing and whether now owned or hereafter acquired, of every
kind
and description, tangible or intangible, including without limitation, all
Goods, Inventory, Equipment, Fixtures, Instruments (including promissory notes),
Documents, Accounts (including health-care-insurance receivables, and license
fees), Contracts, Contract Rights, Chattel Paper (whether tangible or
electronic), Deposit Accounts (and in and to any deposits or other sums at
any
time credited to each such Deposit Account), Money, Letters of Credit and
Letter-of-Credit Rights (whether or not the letter of credit is evidenced by
a
writing), Commercial Tort Claims, Securities and all other Investment Property,
General Intangibles (including payment intangibles and software), Farm Products,
all books and records relating to any of the foregoing, and all supporting
obligations, and any and all proceeds and products of any thereof, including
proceeds of insurance covering any or all of the foregoing, wherever located,
whether now owned, or now due, in which a Grantor has an interest or the power
to transfer rights, or hereafter acquired, arising, or to become due, or in
which a Grantor obtains an interest, or the power to transfer rights, and as
more particularly described on Exhibit
A
attached
hereto (collectively, the “Pledged
Property”).
(b) Simultaneously
with the execution and delivery of this Agreement, each Grantor shall make,
execute, acknowledge, file, record and deliver to the Secured Party such
documents, instruments, and agreements, including, without limitation, financing
statements, certificates, affidavits and forms as may, in the Secured Party’s
reasonable judgment, be necessary to effectuate, complete or perfect, or to
continue and preserve, the security interest of the Secured Party in the Pledged
Property.
Section
2.2 Security
for Obligations.
The
security interest created hereby in the Pledged Property constitutes continuing
collateral security for all of the following obligations, whether now existing
or hereinafter incurred (collectively, the “Obligations”):
any
and
all debts, liabilities, obligations, covenants and duties owing by any Grantor
to the Secured Party, now existing or hereafter arising of every nature, type,
and description, whether liquidated, unliquidated, primary, secondary, secured,
unsecured, direct, indirect, absolute, or contingent, and whether or not
evidenced by a note, guaranty or other instrument, and any amendments,
extensions, renewals or increases thereof, including, without limitation, all
those under (i) the Transaction Documents; (ii) any agreement or document
related to the Transaction Documents; or (iii) any other or related documents,
and including any interest accruing thereon after insolvency, reorganization
or
like proceeding relating to the Grantors, whether or not a claim for
post-petition interest is allowed in such proceeding, and all costs and expenses
of the Secured Party incurred in the enforcement, collection or otherwise in
connection with any of the foregoing, including, but not limited to, reasonable
attorneys’ fees and expenses and all obligations of the Grantors to the Secured
Party to perform acts or refrain from taking any action.
ARTICLE
3.
ATTORNEY-IN-FACT;
PERFORMANCE
Section
3.1. Secured
Party Appointed Attorney-In-Fact.
The
Grantors hereby appoint the Secured Party as its attorney-in-fact, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, exercisable after and during the continuance of an Event of
Default, from time to time in the Secured Party’s discretion to take any action
and to execute any instrument which the Secured Party may reasonably deem
necessary to accomplish the purposes of this Agreement, including, without
limitation, to (a) receive and collect all instruments made payable to the
Grantor representing any payments in respect of the Pledged Property or any
part
thereof and to give full discharge for the same; (b) demand, collect, receipt
for, settle, compromise, adjust, xxx for, foreclose, or realize on the Pledged
Property as and when the Secured Party may determine, and (c) to facilitate
collection, the Secured Party may notify account debtors and obligors on any
Pledged Property to make payments directly to the Secured Party. The foregoing
power of attorney is a power coupled with an interest and shall be irrevocable
until all Obligations are paid and performed in full. The Grantors agree that
the powers conferred on the Secured Party hereunder are solely to protect the
Secured Party’s interests in the Pledged Property and shall not impose any duty
upon the Secured Party to exercise any such powers.
Section
3.2. Secured
Party May Perform.
If
a
Grantor fails to perform any agreement contained herein, the Secured Party,
at
its option, may itself perform, or cause performance of, such agreement, and
the
expenses of the Secured Party incurred in connection therewith shall be included
in the Obligations secured hereby and payable by such Grantor under
Section 8.3.
ARTICLE
4.
REPRESENTATIONS
AND WARRANTIES
Section
4.1. Authorization;
Enforceability.
Each
of
the parties hereto represents and warrants that it has taken all action
necessary to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby; and upon execution and delivery,
this
Agreement shall constitute a valid and binding obligation of the respective
party, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors’ rights or by the principles governing the
availability of equitable remedies.
Section
4.2. Ownership
of Pledged Property.
Each
Grantor represents and warrants that it is the legal and beneficial owner of
the
Pledged Property free and clear of any lien, security interest, option or other
charge or encumbrance (each, a “Lien”)
except
for the security interest created by this Agreement and other Permitted Liens.
For purposes of this Agreement, “Permitted
Liens”
means:
(1) the security interest created by this Agreement or any security interest
previously granted to the Secured Party, (2) existing Liens which have been
disclosed by the Company to the Secured Party on Schedule 4.2 attached hereto;
(3) inchoate Liens for taxes, assessments or governmental charges or levies
not
yet due, as to which the grace period, if any, related thereto has not yet
expired, or being contested in good faith and by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP; (4)
Liens
of carriers, materialmen, warehousemen, mechanics and landlords and other
similar Liens which secure amounts which are not yet overdue or which are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP; (5) nonexclusive licenses,
nonexclusive sublicenses, leases or subleases granted to other Persons not
materially interfering with the conduct of the business of the Company; (6)
Liens securing capitalized lease obligations and purchase money indebtedness
incurred solely for the purpose of financing an acquisition or lease; (7)
easements, rights-of-way, restrictions, encroachments, municipal zoning
ordinances and other similar charges or encumbrances, and minor title
deficiencies, in each case not securing debt and not materially interfering
with
the conduct of the business of the Company and not materially detracting from
the value of the property subject thereto; (8) Liens arising out of the
existence of judgments or awards which judgments or awards do not constitute
an
Event of Default; (9) Liens incurred in the ordinary course of business in
connection with workers compensation claims, unemployment insurance, pension
liabilities and social security benefits and Liens securing the performance
of
bids, tenders, leases and contracts in the ordinary course of business,
statutory obligations, surety bonds, performance bonds and other obligations
of
a like nature (other than appeal bonds) incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed
money); (10) Liens in favor of a banking institution arising by operation of
law
encumbering deposits (including the right of set-off) and contractual set-off
rights held by such banking institution and which are within the general
parameters customary in the banking industry and only burdening deposit accounts
or other funds maintained with a creditor depository institution; (11) usual
and
customary set-off rights in leases and other contracts; and (12) escrows in
connection with acquisitions and dispositions.
Section
4.3 Location
of Pledged Property.
The
Pledged Property is or will be kept at the address(es) of each Grantor set
forth
on the signature pages hereof, or such other locations as the Grantors have
given the Secured Party written notice prior to the date hereof, and, unless
otherwise provided herein, the Grantors will not remove any Pledged Property
from such locations without the prior written consent of the Secured Party
which
consent shall not be unreasonably withheld.
Section
4.4 Location,
State of Incorporation and Name of Grantors.
Each
Grantor’s principal place of business, state of organization, organization
identification number, and exact legal name is as set forth on each such
Grantor’s signature page to this Agreement.
Section
4.5 Priority
of Security Interest.
Except
as
set forth in Schedule 4.2, the security interest granted to the Secured Party
hereunder shall be a first priority security interest subject to no other Liens.
Except for the Permitted Liens, no financing statement or other such document
that constitutes or establishes a lien covering any of the Pledged Property
or
any proceeds thereof is on file in any public office.
ARTICLE
5.
DEFAULT;
REMEDIES
Section
5.1 Method
of Realizing Upon the Pledged Property: Other Remedies.
If
any
Event of Default shall have occurred and be continuing:
(a) The
Secured Party may exercise in respect of the Pledged Property, in addition
to
any other rights and remedies provided for herein or otherwise available to
it,
all of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Pledged Property), and also
may
(i) take absolute control of the Pledged Property, including, without
limitation, transfer into the Secured Party's name or into the name of its
nominee or nominees (to the extent the Secured Party has not theretofore done
so) and thereafter receive, for the benefit of the Secured Party, all payments
made thereon, give all consents, waivers and ratifications in respect thereof
and otherwise act with respect thereto as though it were the outright owner
thereof, (ii) require each Grantor to assemble all or part of the Pledged
Property as directed by the Secured Party and make it available to the Secured
Party at a place or places to be designated by the Secured Party that is
reasonably convenient to both parties, and the Secured Party may enter into
and
occupy any premises owned or leased by a Grantor where the Pledged Property
or
any part thereof is located or assembled for a reasonable period in order to
effectuate the Secured Party's rights and remedies hereunder or under law,
without obligation to the Grantor in respect of such occupation, and
(iii) without notice except as specified below and without any obligation
to prepare or process the Pledged Property for sale, (A) sell the Pledged
Property or any part thereof in one or more parcels at public or private sale,
at any of the Secured Party's offices or elsewhere, for cash, on credit or
for
future delivery, and at such price or prices and upon such other terms as the
Secured Party may deem commercially reasonable and/or (B) lease, license or
dispose of the Pledged Property or any part thereof upon such terms as the
Secured Party may deem commercially reasonable. Each Grantor agrees that, to
the
extent notice of sale or any other disposition of the Pledged Property shall
be
required by law, at least ten (10) days' notice to the Grantor of the time
and
place of any public sale or the time after which any private sale or other
disposition of the Pledged Property is to be made shall constitute reasonable
notification. The Secured Party shall not be obligated to make any sale or
other
disposition of any Pledged Property regardless of notice of sale having been
given. The Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Grantor hereby waives any claims against the Secured Party
arising by reason of the fact that the price at which the Pledged Property
may
have been sold at a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Obligations, even if the Secured Party accepts the first offer received and
does
not offer such Pledged Property to more than one offeree, and waives all rights
that the Grantor may have to require that all or any part of such Pledged
Property be marshaled upon any sale (public or private) thereof. Each Grantor
hereby acknowledges that (i) any such sale of the Pledged Property by the
Secured Party may be made without warranty, (ii) the Secured Party may
specifically disclaim any warranties of title, possession, quiet enjoyment
or
the like, and (iii) such actions set forth in clauses (i) and (ii)
above shall not adversely affect the commercial reasonableness of any such
sale
of Pledged Property.
(b) Any
cash
held by the Secured Party as Pledged Property and all cash proceeds received
by
the Secured Party in respect of any sale of or collection from, or other
realization upon, all or any part of the Pledged Property shall be applied
(after payment of any amounts payable to the Secured Party pursuant to Section
8.3 hereof) by the Secured Party against, all or any part of the Obligations
in
such order as the Secured Party shall elect, consistent with the provisions
of
the Securities Purchase Agreement. Any surplus of such cash or cash proceeds
held by the Secured Party and remaining after the indefeasible payment in full
in cash of all of the Obligations shall be paid over to whomsoever shall be
lawfully entitled to receive the same or as a court of competent jurisdiction
shall direct.
(c) In
the
event that the proceeds of any such sale, collection or realization are
insufficient to pay all amounts to which the Secured Party is legally entitled,
each Grantor shall be liable for the deficiency, together with interest thereon
at the rate specified in the Convertible Debentures for interest on overdue
principal thereof or such other rate as shall be fixed by applicable law,
together with the costs of collection and the reasonable fees, costs, expenses
and other client charges of any attorneys employed by the Secured Party to
collect such deficiency.
(d) Each
Grantor hereby acknowledges that if the Secured Party complies with any
applicable state, provincial, or federal law requirements in connection with
a
disposition of the Pledged Property, such compliance will not adversely affect
the commercial reasonableness of any sale or other disposition of the Pledged
Property.
(e) The
Secured Party shall not be required to marshal any present or future collateral
security (including, but not limited to, this Agreement and the Pledged
Property) for, or other assurances of payment of, the Obligations or any of
them
or to resort to such collateral security or other assurances of payment in
any
particular order, and all of the Secured Party's rights hereunder and in respect
of such collateral security and other assurances of payment shall be cumulative
and in addition to all other rights, however existing or arising. To the extent
that the Grantor lawfully may, each Grantor hereby agrees that it will not
invoke any law relating to the marshaling of collateral which might cause delay
in or impede the enforcement of the Secured Party's rights under this Agreement
or under any other instrument creating or evidencing any of the Obligations
or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or payment thereof is otherwise assured, and, to the
extent that it lawfully may, the Company hereby irrevocably waives the benefits
of all such laws.
Section
5.2 Duties
Regarding Pledged Property.
The
Secured Party shall have no duty as to the collection or protection of the
Pledged Property or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody and reasonable care of any of the
Pledged Property actually in the Secured Party’s possession.
ARTICLE
6.
AFFIRMATIVE
COVENANTS
So
long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing:
Section
6.1. Existence,
Properties, Etc.
(a) Each
Grantor shall do, or cause to be done, all things, or proceed with due diligence
with any actions or courses of action, that may be reasonably necessary
(i) to maintain Grantor’s due organization, valid existence and good
standing under the laws of its state of incorporation, and (ii) to preserve
and keep in full force and effect all qualifications, licenses and registrations
in those jurisdictions in which the failure to do so could have a Material
Adverse Effect (as defined below); and (b) each Grantor shall not do, or
cause to be done, any act impairing the Grantor’s corporate power or authority
(i) to carry on the Grantor’s business as now conducted, and (ii) to
execute or deliver this Agreement or any other document delivered in connection
herewith, including, without limitation, any UCC-1 Financing Statements required
by the Secured Party (which other loan instruments collectively shall be
referred to as the “Loan
Instruments”) to
which it is or will be a party, or perform any of its obligations hereunder
or
thereunder. For purpose of this Agreement, the term “Material
Adverse Effect”
shall
mean any material and adverse effect as determined by Secured Party in its
reasonable discretion, whether individually or in the aggregate, upon
(a) the Grantor’s assets, business, operations, properties or condition,
financial or otherwise; (b) the Grantor’s ability to make payment as and
when due of all or any part of the Obligations; or (c) the Pledged
Property.
Section
6.2. Financial
Statements and Reports.
Each
Grantor shall furnish to the Secured Party within a reasonable time such
financial data as the Secured Party may reasonably request.
Section
6.3. Accounts
and Reports.
Each
Grantor shall maintain a standard system of accounting in accordance with
generally accepted accounting principles consistently applied (“GAAP”) and
provide, at its sole expense, to the Secured Party the following:
(a) as
soon
as available, a copy of any notice or other communication alleging any
nonpayment or other material breach or default, or any foreclosure or other
action respecting any material portion of its assets and properties, received
respecting any of the indebtedness of the Grantor in excess of $500,000 (other
than the Obligations), or any demand or other request for payment under any
guaranty, assumption, purchase agreement or similar agreement or arrangement
respecting the indebtedness or obligations of others in excess of $500,000;
and
(b) within
fifteen (15) days after the making of each submission or filing, a copy of
any report, financial statement, notice or other document, whether periodic
or
otherwise, submitted to the shareholders of the Grantor, or submitted to or
filed by the Grantor with any governmental authority involving or affecting
(i)
the Grantor that could reasonably be expected to have a Material Adverse Effect;
(ii) the Obligations; (iii) any part of the Pledged Property; or
(iv) any of the transactions contemplated in this Agreement or the Loan
Instruments (except, in each case, to the extent any such submission, filing,
report, financial statement, notice or other document is posted on XXXXX
Online).
Section
6.4. Maintenance
of Books and Records; Inspection.
Each
Grantor shall maintain its books, accounts and records in accordance with GAAP,
and permit the Secured Party, its officers and employees and any professionals
designated by the Secured Party in writing, at any time during normal business
hours and upon reasonable notice to visit and inspect any of its properties
(including but not limited to the collateral security described in the
Transaction Documents and/or the Loan Instruments), corporate books and
financial records, and to discuss its accounts, affairs and finances with any
employee, officer or director thereof (it being agreed that, unless an Event
of
Default shall have occurred and be continuing, there shall be no more than
two
(2) such visits and inspections in any Fiscal Year).
Section
6.5. Maintenance
and Insurance.
(a) Each
Grantor shall maintain or cause to be maintained, at its own expense, all of
its
material assets and properties in good working order and condition, ordinary
wear and tear excepted, making all necessary repairs thereto and renewals and
replacements thereof.
(b) Each
Grantor shall maintain or cause to be maintained, at its own expense, insurance
in form, substance and amounts (including deductibles), which the Grantor deems
reasonably necessary to the Company’s business, (i) adequate to insure all
assets and properties of the Grantor of a character usually insured by persons
engaged in the same or similar business against loss or damage resulting from
fire or other risks included in an extended coverage policy; (ii) against
public liability and other tort claims that may be incurred by the Grantor;
(iii) as may be required by the Transaction Documents and/or applicable law
and (iv) as may be reasonably requested by Secured Party, all with financially
sound and reputable insurers.
Section
6.6. Contracts
and Other Collateral.
Each
Grantor shall perform all of its obligations under or with respect to each
instrument, receivable, contract and other intangible included in the Pledged
Property to which the Grantor is now or hereafter will be party on a timely
basis and in the manner therein required, including, without limitation, this
Agreement, except to the extent the failure to so perform such obligations
would
not reasonably be expected to have a Material Adverse Effect.
Section
6.7. Defense
of Collateral, Etc.
Each
Grantor shall defend and enforce its right, title and interest in and to any
part of: (a) the Pledged Property; and (b) if not included within the
Pledged Property, those assets and properties whose loss would reasonably be
expected to have a Material Adverse Effect, each against all manner of claims
and demands on a timely basis to the full extent permitted by applicable law
(other than any such claims and demands by holders of Permitted
Liens).
Section
6.8. Taxes
and Assessments.
Each
Grantor shall (a) file all material tax returns and appropriate schedules
thereto that are required to be filed under applicable law, prior to the date
of
delinquency (taking into account any extensions of the original due date),
(b) pay and discharge all material taxes, assessments and governmental
charges or levies imposed upon the Grantor, upon its income and profits or
upon
any properties belonging to it, prior to the date on which penalties attach
thereto, and (c) pay all material taxes, assessments and governmental
charges or levies that, if unpaid, might become a lien or charge upon any of
its
properties; provided,
however,
that
the Grantor in good faith may contest any such tax, assessment, governmental
charge or levy described in the foregoing clauses (b) and (c) so long as
appropriate reserves are maintained with respect thereto if and to the extent
required by GAAP.
Section
6.9. Compliance
with Law and Other Agreements.
Each
Grantor shall maintain its business operations and property owned or used in
connection therewith in compliance with (a) all applicable federal, state
and local laws, regulations and ordinances governing such business operations
and the use and ownership of such property, and (b) all agreements,
licenses, franchises, indentures and mortgages to which the Grantor is a party
or by which the Grantor or any of its properties is bound, except where the
failure to so comply would not reasonably be expected to have a Material Adverse
Effect.
Section
6.10. Notice
of Default.
The
Grantors will immediately notify the Secured Party of any event causing a
substantial loss or diminution in the value of all or any material part of
the
Pledged Property and the amount or an estimate of the amount of such loss or
diminution. The Grantors shall promptly notify the Secured Party of any
condition or event which constitutes, or would constitute with the passage
of
time or giving of notice or both, an Event of Default, and promptly inform
the
Secured Party of any events or changes in the financial condition of any Grantor
occurring since the date of the last financial statement of such Grantor
delivered to the Secured Party, which individually or cumulatively when viewed
in light of prior financial statements, which might reasonably be expected
to
have a Material Adverse Effect on the business operations or financial condition
of the Grantor.
Section
6.11. Notice
of Litigation.
Each
Grantor shall give notice, in writing, to the Secured Party of (a) any
actions, suits or proceedings wherein the amount at issue is in excess of
$500,000, instituted by any persons against the Grantor, or affecting any of
the
assets of the Company, and (b) any dispute, not resolved within fifteen
(15) days of the commencement thereof, between the Grantor on the one hand
and
any governmental or regulatory body on the other hand, which might reasonably
be
expected to have a Material Adverse Effect on the business operations or
financial condition of the Grantor.
Section
6.13. Future
Subsidiaries.
If
any
Grantor shall hereafter create or acquire any subsidiary, simultaneously with
the creation or acquisition of such subsidiary, such Grantor shall cause such
subsidiary to become a party to this Agreement as an additional "Grantor"
hereunder, and to duly execute and deliver a guaranty of the Obligations in
favor of the Secured Party in form and substance reasonably acceptable to the
Secured Party, and to duly execute and/or deliver such opinions of counsel
and
other documents, in form and substance reasonably acceptable to the Secured
Party, as the Secured Party shall reasonably request with respect
thereto.
Section
6.14. Changes
to Identity.
Each
Grantor will (a) give the Secured Party at least 30 days' prior written notice
of any change in such Grantor's name, identity or organizational structure,
(b)
maintain its jurisdiction of incorporation, organization or formation as set
forth on its respective signature page attached hereto, (C) immediately notify
the Secured Party upon obtaining an organizational identification number, if
on
the date hereof such Grantor did not have such identification
number.
Section
6.15. Establishment
of Deposit Account, Dominion Account
Agreements; Control.
Within
ten (10) days of the date hereof, each Grantor, the Secured Party, and each
applicable bank or other depository institution shall enter into a deposit
account agreement (“Deposit
Account Agreement”)
in the
form of Exhibit B with respect to each of the Grantor’s Deposit Accounts,
including, without limitation, all savings, passbook, money market or other
depository accounts, and all certificates of deposit, maintained by each Grantor
with any bank, savings and loan association, credit union or other depository
institution maintained or used by each Grantor providing dominion and control
over such accounts to the Secured Party such that upon notice by the Secured
Party to such bank or other depository institution of the occurrence of an
Event
of Default all actions under such account shall be taken solely at the Secured
Party’s direction. Each Grantor’s current Deposit Accounts are set forth on
Schedule 6.15 attached hereto.
Each
Grantor shall cause all cash, all collections and proceeds from accounts
receivable, all receipts from credit card payments, and all proceeds from the
sale of any Pledged Property to be deposited only into its Deposit Accounts
in
the ordinary course of business and consistent with past practices.
Each
Grantor shall have valid and effective Deposit Account Agreements in place
at
all times with respect to all of its Deposit Accounts. No Deposit Account shall
be established, used or maintained by the Company unless it first enters into
a
Deposit Account Agreement.
With
respect to each Deposit Account, from and after the occurrence of an Event
of
Default, the Secured Party shall have the right, at any time and from time
to
time, to exercise its rights under such Deposit Account Agreement, including,
for the avoidance of any doubt, the exclusive right to give instructions to
the
financial institution at which such Deposit Account is maintained as to the
disposition of funds or other property on deposit therein or credited thereto.
The Secured Party hereby covenants and agrees that it will not send any such
notice to a financial institution at which any such Deposit Account is
maintained directing the disposition of funds or other property therein unless
and until the occurrence of an Event of Default.
In
connection with the foregoing, each Grantor hereby authorizes and directs each
bank or other depository institution which maintains any Deposit Account to
pay
or deliver to the Secured Party upon the Secured Party’s written demand thereof
made at any time after the occurrence of an Event of Default has occurred all
balances in each Deposit Account with such depository for application to the
Obligations then outstanding.
Section
6.16 Perfection
of Security Interests.
(a) Financing
Statements.
The
Grantors hereby irrevocably authorize the Secured Party, at the sole cost and
expense of the Grantors, at any time and from time to time to file in any filing
office in any jurisdiction any initial financing statements and amendments
thereto that (a) indicate the Pledged Property (i) as all assets of Grantors
or
words of similar effect, regardless of whether any particular asset comprised
in
the Pledged Property falls within the scope of Article 9 of the Code of such
jurisdiction, or (ii) as being of an equal or lesser scope or with greater
detail, and (b) contain any other information required by Part 5 of Article
9 of
the Code for the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether such Grantor is an organization,
the type of organization and any organization identification number issued
to
such Grantor, and (ii) in the case of a financing statement filed as a fixture
filing, a sufficient description of real property to which the Pledged Property
relates. Grantors agree to furnish any such information to the Secured Party
promptly upon request. Grantors also ratify their authorization for the Secured
Party to have filed in any jurisdiction any initial financing statements or
amendments thereto if filed prior to the date hereof. The Grantors acknowledge
that they are not authorized to file any financing statement or amendment or
termination statement with respect to any financing statement without the prior
written consent of the Secured Party and agree that they will not do so without
the prior written consent of the Secured Party. The Grantors acknowledge and
agree that this Agreement constitutes an authenticated record.
(b) Possession.
The
Grantors (i) shall have possession of the Pledged Property, except where
expressly otherwise provided in this Agreement or where the Secured Party
chooses to perfect its security interest by possession in addition to the filing
of a financing statement; and (ii) will, where Pledged Property is in the
possession of a third party, join with the Secured Party in notifying the third
party of the Secured Party’s security interest and obtaining an acknowledgment
from the third party that it is holding the Pledged Property for the benefit
of
the Secured Party.
(c) Control. In
addition to the provisions set forth in Section 6.15 above, the Grantors will
cooperate with the Secured Party in obtaining control with respect to the
Pledged Property consisting of (i) Investment Property, (ii) Letters of Credit
and Letter-of-Credit Rights and (iii) electronic Chattel Paper.
(d) Chattel
Paper. Marking
of Chattel Paper. The Grantors will not create any Chattel Paper without placing
a legend on the Chattel Paper acceptable to the Secured Party indicating that
the Secured Party has a security interest in the Chattel Paper.
Section
6.17 Notice
of Commercial Tort Claims.
If any
Grantor shall at any time acquire a Commercial Tort Claim, such Grantor shall
immediately notify the Secured Party in a writing signed by such Grantor which
shall (a) provide brief details of said claim and (b) grant to the Secured
Party
a security interest in said claim and in the proceeds thereof, all upon the
terms of this Agreement, in such form and substance satisfactory to the Secured
Party.
Section
6.18 Further
Assurances.
Grantors shall, from and after the execution of this Agreement, execute and
deliver to the Secured Party whatever additional documents, instruments, and
agreements that the Secured Party may require in order to correct any document
deficiencies, or to vest or perfect the security interests granted herein or
to
otherwise give effect to the terms and conditions of this Agreement, and hereby
authorize Secured Party to take any normal and customary steps Secured Party
deems necessary to perfect or evidence its security interests and liens in
any
such collateral.
ARTICLE
7.
NEGATIVE
COVENANTS
So
long
as any of the Obligations shall remain outstanding, unless the Secured Party
shall otherwise consent in writing each Grantor covenants and agrees that it
shall not:
Section
7.1. Transfers,
Liens and Encumbrances.
(a) Sell,
assign (by operation of law or otherwise), lease, license, exchange or otherwise
transfer or dispose of any of the Pledged
Property, except Grantor may (i) sell or dispose of Inventory in the ordinary
course of business, and (ii) sell or dispose of assets the Grantor has
determined, in good faith, not to be useful in the conduct of its business,
and
(iii) sell or dispose of accounts in the course of collection in the ordinary
course of business consistent with past practice.
(b) Directly
or indirectly make, create, incur, assume or permit to exist any Lien in, to
or
against any part of the Pledged Property other than Permitted
Liens.
Section
7.2. Restriction
on Redemption and Cash Dividends
Directly
or indirectly, redeem, repurchase or declare or pay any cash dividend or
distribution on its capital stock without the prior express written consent
of
the Secured Party.
Section
7.3. Incurrence
of Indebtedness.
Directly
or indirectly, incur or guarantee, assume or suffer to exist any indebtedness,
other than the indebtedness evidenced by the Convertible Debentures and other
Permitted Indebtedness. “Permitted
Indebtedness”
means:
(i) indebtedness evidenced by Convertible Debentures; (ii) indebtedness
described on the Disclosure Schedule to the Securities Purchase Agreement;
(iii)
indebtedness incurred solely for the purpose of financing the acquisition or
lease of any equipment by the Company, including capital lease obligations
with
no recourse other than to such equipment; (iv) indebtedness (A) the repayment
of
which has been subordinated to the payment of the Convertible Debentures on
terms and conditions acceptable to the Secured Party, including with regard
to
interest payments and repayment of principal, (B) which does not mature or
otherwise require or permit redemption or repayment prior to or on the
91st
day
after the maturity date of any Convertible Debentures then outstanding; and
(C)
which is not secured by any assets of the Company; (v) indebtedness solely
between the Grantor and/or one of its domestic subsidiaries, on the one hand,
and the Grantor and/or one of its domestic subsidiaries, on the other which
indebtedness is not secured by any assets of the Grantor or any of its
subsidiaries, provided that (x) in each case a majority of the equity of any
such domestic subsidiary is directly or indirectly owned by the Grantor, such
domestic subsidiary is controlled by the Grantor and such domestic subsidiary
has executed a security agreement in the form of this Agreement and (y) any
such
loan shall be evidenced by an intercompany note that is pledged by the Grantor
or its subsidiary, as applicable, as collateral pursuant to this Agreement;
(vi)
reimbursement obligations in respect of letters of credit issued for the account
of the Grantor or any of its subsidiaries for the purpose of securing
performance obligations of the Grantor or its subsidiaries incurred in the
ordinary course of business so long as the aggregate face amount of all such
letters of credit does not exceed $500,000 at any one time; and (vii) renewals,
extensions and refinancing of any indebtedness described in clauses (i) or
(iii)
of this subsection.
Section
7.4. Places
of Business.
Change
the location of its chief place of business, chief executive office or any
place
of business disclosed to the Secured Party, unless such change in location
is to
a different location within the United States and the Grantor provides notice
to
the Secured Party of new location within 10 days’ of such change in
location.
ARTICLE
8.
MISCELLANEOUS
Section
8.1. Notices.
All
notices or other communications required or permitted to be given pursuant
to
this Agreement shall be in writing and shall be considered as duly given on:
(a) the date of delivery, if delivered in person or by nationally
recognized overnight delivery service or (b) five (5) days after
mailing if mailed from within the continental United States by certified mail,
return receipt requested to the party entitled to receive the same:
|
If
to the Secured Party:
|
YA
Global Investments, L.P.
|
|
000
Xxxxxx Xxxxxx-Xxxxx 0000
|
|
|
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
|
|
|
Attention: Xxxx
Xxxxxx
|
|
|
Portfolio
Manager
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
With
a copy to:
|
Xxxxx
Xxxxxxxx, Esq.
|
|
000
Xxxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxxxxx
Xxxx, XX 00000
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
If
to the Company:
|
|
|
Xxx
Xxxxxxxxx Xxxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
Telephone: 000-000-0000
|
|
|
Facsimile: 000-000-0000
|
|
|
With
a copy to:
|
Xxxxxxxxxxx
& Xxxxxxxx Xxxxxxx Xxxxx Xxxxx LLP
|
|
000
Xxxxx Xxxxxxxx Xxxxxxxxx – Xxxxx 0000
|
|
|
Xxxxx,
XX 00000-0000
|
|
|
Attention: Xxxxxxx
X. Xxxxxx, Esq.
|
|
|
Telephone: (000)
000-0000
|
|
|
Facsimile: (000)
000-0000
|
|
|
If
to any other Grantor
|
To
the address listed on the respective signature pages attached
hereto
|
Any
party
may change its address by giving notice to the other party stating its new
address. Commencing on the tenth (10th) day
after the giving of such notice, such newly designated address shall be such
party’s address for the purpose of all notices or other communications required
or permitted to be given pursuant to this Agreement.
Section
8.2. Severability.
If
any
provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall
not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if
any
such invalid or unenforceable provision were not contained herein.
Section
8.3. Expenses.
In
the
event of an Event of Default, the Company will pay to the Secured Party the
amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel, which the Secured Party may incur
in connection with: (i) the custody or preservation of, or the sale,
collection from, or other realization upon, any of the Pledged Property;
(ii) the exercise or enforcement of any of the rights of the Secured Party
hereunder or (iii) the failure by the Grantor to perform or observe any of
the provisions hereof.
Section
8.4. Waivers,
Amendments, Etc.
The
Secured Party’s delay or failure at any time or times hereafter to require
strict performance by Grantor of any undertakings, agreements or covenants
shall
not waive, affect, or diminish any right of the Secured Party under this
Agreement to demand strict compliance and performance herewith. Any waiver
by
the Secured Party of any Event of Default shall not waive or affect any other
Event of Default, whether such Event of Default is prior or subsequent thereto
and whether of the same or a different type. None of the undertakings,
agreements and covenants of the Grantor contained in this Agreement, and no
Event of Default, shall be deemed to have been waived by the Secured Party,
nor
may this Agreement be amended, changed or modified, unless such waiver,
amendment, change or modification is evidenced by an instrument in writing
specifying such waiver, amendment, change or modification and signed by the
Secured Party in the case of any such waiver, and signed by the Secured Party
and the Grantor in the case of any such amendment, change or modification.
Further, no such document, instrument, and/or agreement purported to be executed
on behalf of the Secured Party shall be binding upon the Secured Party unless
executed by a duly authorized representative of the Secured Party.
Section
8.5. Continuing
Security Interest.
This
Agreement shall create a continuing security interest in the Pledged Property
and shall: (i) remain in full force and effect so long as any of the
Obligations shall remain outstanding; (ii) be binding upon each Grantor and
its successors and assigns; and (iii) inure to the benefit of the Secured
Party and its successors and assigns. Upon the payment or satisfaction in full
of the Obligations, this Agreement and the security interest created hereby
shall terminate, and, in connection therewith, each Grantor shall be entitled
to
the return, at its expense, of such of the Pledged Property as shall not have
been sold in accordance with Section 5.2 hereof or otherwise applied
pursuant to the terms hereof and the Secured Party shall deliver to the Grantor
such documents as the Grantor shall reasonably request to evidence such
termination.
Section
8.6. Independent
Representation.
Each
party hereto acknowledges and agrees that it has received or has had the
opportunity to receive independent legal counsel of its own choice and that
it
has been sufficiently apprised of its rights and responsibilities with regard
to
the substance of this Agreement.
Section
8.7. Applicable
Law: Jurisdiction.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of New Jersey without regard to the principles of conflict of laws.
The parties further agree that any action between them shall be heard in Xxxxxx
County, New Jersey, and expressly consent to the jurisdiction and venue of
the
Superior Court of New Jersey, sitting in Xxxxxx County and the United States
District Court for the District of New Jersey sitting in Newark, New Jersey
for
the adjudication of any civil action asserted pursuant to this Paragraph,
provided,
however,
that
nothing herein shall prevent the Secured Party from enforcing its rights and
remedies (including, without limitation, by filing a civil action) with respect
to the Pledged Property and/or the Grantors in any other jurisdiction in which
the Pledged Property and/or the Grantors may be located.
Section
8.8. Waiver
of Jury Trial.
AS
A
FURTHER INDUCEMENT FOR THE SECURED PARTY TO ENTER INTO THIS AGREEMENT AND TO
MAKE THE FINANCIAL ACCOMMODATIONS TO THE COMPANY, THE COMPANY HEREBY WAIVES
ANY
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS
AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS TRANSACTION.
Section
8.9 Right
of Set Off.
The
Grantors each hereby grant to the Secured Party, a lien, security interest
and
right of setoff as security for all liabilities and obligations to the Secured
Party, whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of the Secured Party or any of its affiliates, or any
entity under the control of the Secured Party, or in transit to any of them.
At
any time, without demand or notice, the Secured Party may set off the same
or
any part thereof and apply the same to any liability or obligation of the
Grantors even though unmatured and regardless of the adequacy of any other
collateral securing the Obligations. ANY AND ALL RIGHTS TO REQUIRE THE SECURED
PARTY TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE GRANTORS, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
Section
8.10 Entire
Agreement.
This
Agreement and the other documents or agreements delivered in connection herewith
contain the entire understanding among the parties and supersede any prior
agreement or understanding among them with respect to the subject matter
hereof.
Section
8.11 Existing
Security Interests.
The
security interests granted herein are intended to be supplemental to, and not
in
limitation of, any existing security interests granted to the Secured Party
to
secure the Obligations, whether under the Prior Debt Documents or otherwise.
All
such existing security interests, and any rights of the Secured Party in
connection therewith, shall remain in full force and effect in accordance with
their respective terms, provided,
however,
that in
the event of a conflict between the terms of this Agreement and of any such
prior security interests, or the documents evidencing the same, the terms of
this Agreement shall control.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
COMPANY:
|
||
|
By:
|
/s/
J. Xxxxx Xxxxxx
|
|
|
Name: J.
Xxxxx Xxxxxx
|
||
|
Title:
Chief
Financial Officer
|
||
|
Organizational
ID:
|
||
IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
GUARANTOR:
|
||
|
GAVITEC
AG
|
||
|
By:
|
/s/
Xxxxxxxxx Xxxxxxxxx
|
|
|
Name: Xxxxxxxxx
Xxxxxxxxx
|
||
|
Title:
CEO
|
||
|
Address
For Notices:
Attn:
Xxxxxxxxx Xxxxxxxxx
Xxxx-Xxxx-Xxxx-Xxx
00
00000
Xxxxxxxx, Xxxxxxx
Phone:
00-0000-00000-00
Jurisdiction
of Incorporation, Organization or
Formation:
Germany
|
||
|
Organizational
ID:
|
||
IN
WITNESS WHEREOF, the
parties hereto have executed this Security Agreement as of the date first above
written.
|
SECURED
PARTY:
|
||
|
YA
GLOBAL INVESTMENTS, L.P.
|
||
|
By:
Yorkville
Advisors, LLC
|
||
|
Its:
Investment
Manager
|
||
|
By:
|
/s/ Xxxx Xxxxxx | |
|
Name:
Xxxx Xxxxxx
|
||
|
Title:
Portfolio Manager
|
||
SCHEDULE
A
ORIGINAL
DEBENTURES
|
$
|
5,000,000
|
|||
|
December
29, 2006
|
2,500,000
|
|||
|
March
27, 2007
|
7,458,651
|
|||
|
August
24, 2007
|
1,775,000
|
|||
|
April
10, 2008
|
390,000
|
|||
|
May
16, 2008
|
500,000
|
|||
|
790,000
|
||||
|
July
10, 2008
|
137,750
|
EXHIBIT
A
DEFINITION
OF PLEDGED PROPERTY
For
the
purpose of securing prompt and complete payment and performance by the Grantor
of all of the Obligations, the Grantors each unconditionally and irrevocably
hereby grant to the Secured Party a continuing security interest in and to,
and
lien upon, the following Pledged Property of each Grantor (all capitalized
terms
used herein shall have the respective meanings ascribed thereto in the
Code):
All
personal property of each Grantor, wherever located and whether now or
hereinafter existing and whether now owned or hereafter acquired, of every
kind
and description, tangible or intangible, including without limitation,
all:
1. Goods;
2.
Inventory,
including, without limitation, all goods, merchandise and other personal
property now owned or hereafter acquired by the Grantor which are held for
sale
or lease, or are furnished or to be furnished under any contract of service
or
are raw materials, work-in-process, supplies or materials used or consumed
in
the Grantor’s business, and all products thereof, and all substitutions.
replacements, additions or accessions therefor and thereto; and any cash or
non-cash Proceeds of all of the foregoing;
3.
Equipment,
including, without limitation, all machinery, equipment, furniture, parts,
tools
and dies, of every kind and description, of the Grantor (including automotive
equipment and motor vehicles), now owned or hereafter acquired by the Grantor,
and used or acquired for use in the business of the Grantor, together with
all
accessions thereto and all substitutions and replacements thereof and parts
therefor and all cash or non-cash Proceeds of the foregoing;
4. Fixtures,
including, without limitation, all goods which are so related to particular
real
estate that an interest in them arises under real estate law and all accessions
thereto, replacements thereof and substitutions therefor, including, but not
limited to, plumbing, heating and lighting apparatus, mantels, floor coverings,
furniture, furnishings, draperies, screens, storm windows and doors, awnings,
shrubbery, plants, boilers, tanks, machinery, stoves, gas and electric ranges,
wall cabinets, appliances, furnaces, dynamos, motors, elevators and elevator
machinery, radiators, blinds and all laundry, refrigerating, gas, electric,
ventilating, air-refrigerating, air-conditioning, incinerating and sprinkling
and other fire prevention or extinguishing equipment of whatsoever kind and
nature and any replacements, accessions and additions thereto, Proceeds thereof
and substitutions therefor;
5. Instruments
(including promissory notes);
6. Documents;
7. Accounts,
including, without limitation, all Contract Rights and accounts receivable,
health-care-insurance receivables, and license fees; any other obligations
or
indebtedness owed to the Grantor from whatever source arising; all rights of
Grantor to receive any payments in money or kind; all guarantees of Accounts
and
security therefor; all cash or non-cash Proceeds of all of the foregoing; all
of
the right, title and interest of Grantor in and with respect to the goods,
services or other property which gave rise to or which secure any of the
accounts and insurance policies and proceeds relating thereto, and all of the
rights of the Grantor as an unpaid seller of goods or services, including,
without limitation the rights of stoppage in transit, replevin, reclamation
and
resale and all of the foregoing, whether now existing or hereafter created
or
acquired;
8.
Contracts
and Contract Rights, including, to the extent not included in the definition
of
Accounts, all rights to payment or performance under a contract not yet earned
by performance and not evidenced by an Instrument or Chattel Paper;
9.
Chattel
Paper (whether tangible or electronic);
10. Deposit
Accounts (and in and to any deposits or other sums at any time credited to
each
such Deposit Account);
11. Money,
cash and cash equivalents;
12. Letters
of Credit and Letter-of-Credit Rights (whether or not the Letter of Credit
is
evidenced by a writing);
13. Commercial
Tort Claims;
14. Securities
Accounts, Security Entitlements, Securities, Financial Assets and all other
Investment Property, including, without limitation, all stock, ownership or
membership interests in any subsidiaries or affiliates (whether or not
controlled by the Grantor);
15. General
Intangibles, including, without limitation, all payment intangibles, tax refunds
and other claims of the Grantor against any governmental authority, and all
choses in action, insurance proceeds, goodwill, patents, copyrights, trademarks,
tradenames, customer lists, formulae, trade secrets, licenses, permits,
franchises, designs, computer software, research and literary rights now owned
or hereafter acquired;
16. Farm
Products;
17. All
books
and records (including all ledger sheets, files, computer programs, tapes and
related data processing software) evidencing an interest in or relating to
any
of the foregoing;
18. To
the
extent not already included above, all supporting obligations, and any and
all
cash and non-cash Proceeds, products, accessions, and/or replacements of any
of
the foregoing, including proceeds of insurance covering any or all of the
foregoing.
EXHIBIT
B
FORM
OF DEPOSIT ACCOUNT AGREEMENT
DISCLOSURE
SCHEDULE
SCHEDULE
6.15
LISTING
OF DEPOST ACCOUNTS
|
Account Name:
|
NeoMedia
Technologies, Inc.
|
|
|
Bank Name:
|
XX
Xxxxxx Xxxxx
|
|
|
Bank Address:
|
000
X. XxXxxxx Xx., Xxxxxxx, XX 00000
|
|
|
Account Number:
|
5330175135
|
