Exhibit 10.4
SECURITY AGREEMENT
SECURITY AGREEMENT, dated March 31, 2001, made by CYNET, INC., a Texas
corporation ("Borrower"), and each subsidiary of Borrower listed on the
signature pages hereof (Borrower and each such subsidiary being individually a
"Grantor" and collectively the "Grantors"), in favor of CRTLP, Inc., G&B
XxXxxxxx Family Limited Partnership and the XxXxxxxx Revocable Trust
(collectively "Lender").
W I T N E S S E T H :
WHEREAS, pursuant to that certain Loan Agreement dated as of March 31,
2001 between Borrower and Lender (as the same may from time to time be amended,
modified or supplemented, the "Loan Agreement"), Lender has agreed to make Term
Loans (as defined in the Loan Agreement) to Borrower (the Term Loans being
collectively referred to herein as the "Loans"); and
WHEREAS, Lender is willing to make the Loans but only upon the condition,
among others, that Grantor shall have executed and delivered to Lender this
Security Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and affirmed, the
parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Loan Agreement are used herein as therein defined, and the following terms
shall have the following meanings (such meanings being equally applicable to
both the singular and plural forms of the terms defined):
"Account Debtor" shall mean any "account debtor," as such term is
defined in section 9.105(1)(a) of the UCC.
"Accounts" shall mean any "account," as such term is defined in
section 9.106 of the UCC, now owned or hereafter acquired by any Grantor
and, in any event, shall include, without limitation, all accounts
receivable, book debts and other forms of obligations (other than forms of
obligations evidenced by Chattel Paper, Documents or Instruments) now
owned or hereafter received or acquired by or belonging or owing to any
Grantor (including, without limitation, under any trade names, styles or
divisions thereof) whether arising out of goods sold or services rendered
by such Grantor or from any other transaction, whether or not the same
involves the sale of goods or services by any Grantor (including, without
limitation, any such obligation which might be characterized as an account
or contract right under the UCC) and all of any Grantor's rights in, to
and under all purchase orders or receipts now owned or hereafter acquired
by it for goods or services, and all of any Grantor's rights to any goods
represented by any of the foregoing (including, without limitation, unpaid
seller's rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods), and all
moneys due or to become due to any Grantor under all contracts for the
sale of goods or the performance of services or both by such Grantor
(whether or not yet earned by performance on the part of such Grantor or
in connection with any other
transaction), now in existence or hereafter occurring, including, without
limitation, the right to receive the proceeds of said purchase orders and
contracts, and all collateral security and guarantees of any kind given by
any Person with respect to any of the foregoing.
"Chattel Paper" shall mean any "chattel paper," as such term is
defined in section 9.105(1)(b) of the UCC, now owned or hereafter acquired
by any Grantor.
"Collateral" shall have the meaning assigned to such term in Section
2 of this Security Agreement.
"Contracts" shall mean all contracts, undertakings, or other
agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments) in or under which any Grantor may now or hereafter have any
right, title or interest, including, without limitation, with respect to
an Account, any agreement relating to the terms of payment or the terms of
performance thereof.
"Copyrights" shall mean all of the following now or hereafter
acquired by any Grantor: (i) all copyrights, registrations and
applications therefor, (ii) all renewals and extensions thereof, (iii) all
income, royalties, damages and payments now and hereafter due or payable
or both with respect thereto, including, without limitation, damages and
payments for past or future infringements or misappropriations thereof,
(iv) all rights to xxx for past, present and future infringements or
misappropriations thereof, and (v) all other rights corresponding thereto
throughout the world.
"Documents" shall mean any "documents," as such term is defined in
section 9.105(1)(f) of the UCC, now owned or hereafter acquired by any
Grantor.
"Equipment" shall mean any "equipment," as such term is defined in
section 9.109(2) of the UCC, now owned or hereafter acquired by any
Grantor and, in any event, shall include, without limitation, all
machinery, equipment, furnishings, fixtures, vehicles and computers and
other electronic data-processing and other office equipment now owned or
hereafter acquired by any Grantor and any and all additions, substitutions
and replacements of any of the foregoing, wherever located, together with
all attachments, components, parts, equipment and accessories installed
thereon or affixed thereto.
"General Intangibles" shall mean any "general intangibles," as such
term is defined in section 9.106 of the UCC, now owned or hereafter
acquired by any Grantor and, in any event, shall include, without
limitation, all right, title and interest which any Grantor may now or
hereafter have in or under any Contract, all customer lists, Copyrights,
Trademarks, Patents, rights in intellectual property, Licenses, permits,
trade secrets, proprietary or confidential information, inventions
(whether patented or patentable or not) and technical information,
procedures, designs, knowledge, know-how, software, data bases, data,
skill, expertise, experience, processes, models, drawings, materials and
records now owned or hereafter acquired by any Grantor, goodwill and
rights of indemnification.
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"hereby," "herein," "hereof," "hereunder" and words of similar
import refer to this Security Agreement as a whole (including, without
limitation, any schedules hereto) and not merely to the specific section,
paragraph or clause in which the respective word appears.
"Instruments" shall mean any "instrument," as such term is defined
in section 9.105(1)(i) of the UCC, now owned or hereafter acquired by any
Grantor, other than instruments that constitute, or are a part of a group
of writings that constitute, Chattel Paper.
"Intellectual Property Collateral" shall mean all of the Copyrights,
Licenses, Patents, Trademarks and Trade Secrets as to which Lender has
been granted a security interest hereunder.
"Inventory" shall mean any "inventory," as such term is defined in
section 9.109(4) of the UCC, now owned or hereafter acquired by any
Grantor and, in any event, shall include, without limitation, all
inventory, merchandise, goods and other personal property now owned or
hereafter acquired by any Grantor which are held for sale or lease or are
furnished or are to be furnished under a contract of service or which
constitute raw materials, work in process or materials used or consumed or
to be used or consumed in any Grantor's business, or the processing,
packaging, delivery or shipping of the same, and all finished goods.
"License" shall mean any Patent License, Trademark License or other
license as to which Lender has been granted a security interest hereunder.
"Patent License" shall mean all of the following now owned or
hereafter acquired by any Grantor: any written agreement granting any
right to practice any invention on which a Patent is in existence.
"Patents" shall mean all of the following now or hereafter owned by
any Grantor: (i) all patents and patent applications, (ii) all inventions
and improvements described and claimed therein, (iii) all reissues,
divisions, continuations, renewals, extensions and continuations-in-part
thereof, (iv) all income, royalties, damages and payments now and
hereafter due and/or payable to such Company with respect thereto,
including, without limitation, damages and payments for past or future
infringements or misappropriations thereof, (v) all rights to xxx for
past, present and future infringements or misappropriations thereof, and
(vi) all other rights corresponding thereto throughout the world.
"Permitted Liens" shall mean Liens permitted by Section 6.2 of the
Loan Agreement to be existing as of the date hereof or to be created
hereafter.
"Proceeds" shall mean "proceeds," as such term is defined in section
9.306(1) of the UCC and, in any event, shall include, without limitation,
(i) any and all proceeds of any insurance, indemnity, warranty or guaranty
payable to any Grantor from time to time with respect to any of the
Collateral, (ii) any and all payments (in any form whatsoever)
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made or due and payable to any Grantor from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of
all or any part of the Collateral by any governmental body, authority,
bureau or agency (or any person acting under color of governmental
authority), (iii) any claim of any Grantor against third parties (A) for
past, present or future infringement of any Patent or Patent License or
(B) for past, present or future infringement or dilution of any Trademark
or Trademark License or for injury to the goodwill associated with any
Trademark, Trademark registration or Trademark licensed under any
Trademark License and (iv) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Secured Obligations" shall mean (i) all of the unpaid principal
amount of, and accrued interest on, the Notes, (ii) all prepayment,
Commitment and other fees owing by Borrower under the Loan Agreement to
Lender, (iii) [the obligations of each Guarantor pursuant to the
Guaranties and (iv)] all other Indebtedness, liabilities and obligations
of any Loan Party to Lender, whether now existing or hereafter incurred,
and whether created under, arising out of or in connection with the Loan
Agreement, this Security Agreement, any of the other Loan Documents or
otherwise.
"Security Agreement" shall mean this Security Agreement, as the same
may from time to time be amended, modified or supplemented and shall refer
to this Security Agreement as in effect of the date such reference becomes
operative.
"Trade Secrets" shall mean trade secrets, along with any and all (i)
income, royalties, damages and payments now and hereafter due and/or
payable to any Grantor with respect thereto, including, without
limitation, damages and payments for past or future infringements or
misapproppriations thereof, (ii) rights to xxx for past, present and
future infringements or misappropriations thereof, and (iii) all other
rights corresponding thereto throughout the world.
"Trademark License" shall mean all of the following now owned or
hereafter acquired by any Grantor: any written agreement granting any
right to use any Trademark or Trademark registration.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (i) all trademarks (including service marks and
trade names, whether registered or at common law), registrations and
applications therefor, and the entire product lines and goodwill of such
Grantor's business connected therewith and symbolized thereby, (ii) all
renewals thereof, (iii) all income, royalties, damages and payments now
and hereafter due or payable or both with respect thereto, including,
without limitation, damages and payments for past or future infringements
or misappropriations thereof, (iv) all rights to xxx for past, present and
future infringements or misappropriations thereof, and (v) all other
rights corresponding thereto throughout the world.
"UCC" shall mean the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of Texas; provided, however, in
the event that, by reason of mandatory provisions of law, any or all of
the attachment, perfection or priority of
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Lender's security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of
Texas, the term "UCC" shall mean the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof relating
to such attachment, perfection or priority and for purposes of definitions
related to such provisions.
2. Grant of Security Interest. (a) As collateral security for the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all the Secured Obligations and to
induce Lender to enter into the Loan Agreement and to make the Loans in
accordance with the terms thereof, each Grantor hereby assigns, conveys,
mortgages, pledges, hypothecates and transfers to Lender, and hereby grants to
Lender, subject to the lien filed by Compaq Computer Corporation dated December
29, 2000, (the "Compaq Lien"), a security interest in, all of such Grantor's
right, title and interest in, to and under the following (all of which being
hereinafter collectively called the "Collateral"):
(i) all Accounts of such Grantor, other than accounts receivable of
the Borrower that are factored from time to time by Xxxxxx Venture
Partners, Inc. pursuant to the Factoring Agreement and Security Agreement
dated August 7, 1998 (the "Encumbered Accounts Receivable");
(ii) all Chattel Paper of such Grantor;
(iii) all Contracts of such Grantor;
(iv) all Copyrights of such Grantor;
(v) all Documents of such Grantor;
(vi) all Equipment of such Grantor;
(vii) all General Intangibles of such Grantor;
(viii) all Instruments of such Grantor;
(ix) all Inventory of such Grantor;
(x) all Patent Licenses of such Grantor;
(xi) all Trade Secrets of such Grantor;
(xii) all Trademark Licenses of such Grantor;
(xiii) all other goods and personal property of such Grantor whether
tangible or intangible or whether now owned or hereafter acquired by such
Grantor and wherever located; and
(xiv) to the extent not otherwise included, all Proceeds of each of
the foregoing and all accessions to, substitutions and replacements for,
and rents, profits and product of each of the foregoing.
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(b) In addition, as collateral security for the prompt and complete
payment when due of the Secured Obligations and in order to induce Lender as
aforesaid, Lender is hereby granted a lien and security interest in all property
of each Grantor held by Lender, including, without limitation, all property of
every description, now or hereafter in the possession or custody of or in
transit to Lender for any purpose, including safekeeping, collection or pledge,
for the account of such Grantor, or as to which such Grantor may have any right
or power.
3. Rights of Lender; Limitations on Lender's Obligations. (a) It is
expressly agreed by each Grantor that, anything herein to the contrary
notwithstanding, such Grantor shall remain liable under each of its Contracts
and each of its Licenses to observe and perform all the conditions and
obligations to be observed and performed by it thereunder and each Grantor shall
perform all of its duties and obligations thereunder, all in accordance with and
pursuant to the terms and provisions of each such Contract or License. Lender
shall not have any obligation or liability under any Contract or License by
reason of or arising out of this Security Agreement or the granting to Lender of
a security interest therein or the receipt by Lender of any payment relating to
any Contract or License pursuant hereto, nor shall Lender be required or
obligated in any manner to perform or fulfill any of the obligations of any
Grantor under or pursuant to any Contract or License, or to make any payment, or
to make any inquiry as to the nature or the sufficiency of any payment received
by it or the sufficiency of any performance by any party under any Contract or
License, or to present or file any claim, or to take any action to collect or
enforce any performance or the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
(b) Lender authorizes each Grantor to collect its Accounts provided
that such collection is performed in a prudent and businesslike manner, and
Lender may, upon the occurrence and during the continuation of any Default or
Event of Default and without notice, limit or terminate said authority at any
time. If required by the Lender at any time during the continuation of any
Default or Event of Default, any Proceeds, when first collected by any Grantor,
received in payment of any such Account or in payment for any of its Inventory
or on account of any of its Contracts, shall be promptly deposited by such
Grantor in precisely the form received (with all necessary endorsements) in a
special bank account maintained by Lender subject to withdrawal by Lender only,
as hereinafter provided, and until so turned over shall be deemed to be held in
trust by such Grantor for and as Lender's property and shall not be commingled
with such Grantor's other funds or properties. Such Proceeds, when deposited,
shall continue to be collateral security for all of the Secured Obligations and
shall not constitute payment thereof until applied as hereinafter provided.
Lender shall apply all or a part of the funds on deposit in said special account
to the principal of or interest on or both in respect of any of the Secured
Obligations in accordance with the provisions of Section 8(d) hereof and any
part of such funds which Lender elects not so to apply and deems not required as
collateral security for the Secured Obligations shall be paid over from time to
time by Lender to such Grantor. If a Default or an Event of Default has occurred
and is continuing, at the request of Lender such Grantor shall deliver to the
Lender all original and other documents evidencing, and relating to, the sale
and delivery of such Inventory or the performance of labor or service which
created such Accounts, including, without limitation, all original orders,
invoices and shipping receipts; and, prior to the occurrence of a Default or an
Event of Default such Grantor shall deliver photocopies thereof to Lender at its
request.
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4. Representations and Warranties. Each Grantor hereby represents
and warrants that:
(a) Except for the security interest granted to Lender pursuant to
this Security Agreement and other Permitted Liens (including the first
priority security interest granted in the Encumbered Accounts Receivable)
and the Compaq Lien, such Grantor is the sole owner of each item of the
Collateral in which it purports to grant a security interest hereunder,
having good and marketable title thereto, free and clear of any and all
Liens. No material amounts payable under or in connection with any of its
Accounts or Contracts are evidenced by Instruments which have not been
delivered to Lender [except with respect to the Encumbered Accounts
Receivable].
(b) No effective security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or any
part of the Collateral is on file or of record in any public office,
except such as may have been filed by such Grantor in favor of Lender
pursuant to this Security Agreement or such as relate to other Permitted
Liens.
(c) Appropriate financing statements having been filed in the
jurisdictions listed on Schedule I hereto, this Security Agreement is
effective to create a valid and continuing first priority lien on and
first priority perfected security interest in the Collateral with respect
to which a security interest may be perfected by filing pursuant to the
UCC, or by filing in the United States Patent and Trademark Office, in
favor of Lender, prior to all other Liens, except Permitted Liens (other
than the Lien granted to Lender under this Security Agreement), and is
enforceable as such as against creditors of and purchasers from such
Grantor (other than purchasers of Inventory in the ordinary course of
business) and as against any purchaser of real property where any of the
Equipment is located and any present or future creditor obtaining a Lien
on such real property. All action necessary or desirable to protect and
perfect such security interest in each item of the Collateral has been
duly taken.
(d) Such Grantor's principal place of business and the place where
its records concerning the Collateral are kept and the location of its
Inventory and Equipment set forth on Schedule II hereto, and such Grantor
will not change such principal place of business or remove such records or
change the location of its Inventory and Equipment unless it has taken
such action as is necessary to cause the security interest of Lender in
the Collateral to continue to be perfected. Such Grantor will not change
its principal place of business or the place where its records concerning
the Collateral are kept or change the location of its Inventory and
Equipment without giving thirty (30) days' prior written notice thereof to
Lender.
(e) The amount represented by such Grantor to Lender from time to
time as owing by each Account Debtor or by all Account Debtors in respect
of the Accounts of
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such Grantor will at such time be the correct amount actually and
unconditionally owing by such Account Debtors thereunder.
5. Covenants. Each Grantor covenants and agrees with Lender that
from and after the date of this Security Agreement and until the Secured
Obligations are fully satisfied:
(a) Further Documentation; Pledge of Instruments. At any time and
from time to time, upon the written request of Lender, and at the sole
expense of such Grantor, such Grantor will promptly and duly execute and
deliver any and all such further instruments and documents and take such
further action as Lender may reasonably deem desirable to obtain the full
benefits of this Security Agreement and of the rights and powers herein
granted, including, without limitation, using their best efforts to secure
all consents and approvals necessary or appropriate for the assignment to
Lender of any License or Contract held by such Grantor or in which such
Grantor has any rights not heretofore assigned, the filing of any
financing or continuation statements under the UCC with respect to the
liens and security interests granted hereby, transferring Collateral to
the Lender's possession (if a security interest in such Collateral can be
perfected by possession), placing the interest of Lender as lienholder on
the certificate of title of any vehicle and using its best efforts to
obtain waivers of liens from landlords and mortgagees. Such Grantor also
hereby authorizes Lender to file any such financing or continuation
statement without the signature of such Grantor to the extent permitted by
applicable law. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any Instrument, such
Instrument shall be immediately pledged to Lender hereunder, and shall be
duly endorsed in a manner satisfactory to Lender and delivered to Lender.
(b) Maintenance of Records. Such Grantor will keep and maintain at
its own cost and expense satisfactory and complete records of the
Collateral, including, without limitation, a record of all payments
received and all credits granted with respect to the Collateral and all
other dealings with the Collateral. Such Grantor will xxxx its books and
records pertaining to the Collateral to evidence this Security Agreement
and the security interests granted hereby. All Chattel Paper will be
marked with the following legend: "This writing and the obligations
evidenced or secured hereby are subject to the security interest of Compaq
Computer Corporation". If requested by Lender, the security interest of
the Lender shall be noted on the certificate of title of each vehicle. For
Lender's further security, such Grantor agrees that Lender shall have a
special property interest in all of such Grantor's books and records
pertaining to the Collateral and, upon the occurrence and during the
continuation of any Default or Event of Default, such Grantor shall
deliver and turn over any such books and records to Lender or to its
representatives at any time on demand of Lender. Prior to the occurrence
of a Default or an Event of Default and upon reasonable notice from
Lender, such Grantor shall permit any representative of Lender to inspect
such books and records and will provide photocopies thereof to Lender.
(c) Indemnification. In any suit, proceeding or action brought by
Lender relating to any Account, Chattel Paper, Contract, General
Intangible or Instrument for any sum owing thereunder, or to enforce any
provision of any Account, Chattel Paper,
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Contract, General Intangible or Instrument, such Grantor will save,
indemnify and keep Lender harmless from and against all expense, loss or
damage suffered by reason of any defense, setoff, counterclaim, recoupment
or reduction of liability whatsoever of the obligor thereunder, arising
out of a breach by such Grantor of any obligation thereunder or arising
out of any other agreement, indebtedness or liability at any time owing
to, or in favor of, such obligor or its successors from such Grantor, and
all such obligations of such Grantor shall be and remain enforceable
against and only against such Grantor and shall not be enforceable against
Lender.
(d) Compliance with Laws, etc. Such Grantor will comply, in all
material respects, with all acts, rules, regulations, orders, decrees and
directions of any governmental authority, applicable to the Collateral or
any part thereof or to the operation of such Grantor's business; provided,
however, that such Grantor may contest any act, regulation, order, decree
or direction in any reasonable manner which shall not in the sole opinion
of Lender adversely affect Lender's rights hereunder or adversely affect
the first priority of its security interest in the Collateral.
(e) Payment of Obligations. Such Grantor will pay promptly when due
all taxes, assessments and governmental charges or levies imposed upon the
Collateral or in respect of its income or profits therefrom and all claims
of any kind (including, without limitation, claims for labor, materials
and supplies), except that no such charge need be paid if (i) such
nonpayment does not involve any danger of the sale, forfeiture or loss of
any of the Collateral or any interest therein, and (ii) such charge is
adequately reserved against in accordance with and to the extent required
by GAAP.
(f) Compliance with Terms of Accounts, etc. In all material
respects, such Grantor will perform and comply with all obligations in
respect of Accounts, Chattel Paper, Contracts and Licenses and all other
agreements to which it is a party or by which it is bound.
(g) Limitation on Liens on Collateral. Such Grantor will not create,
permit or suffer to exist, and will defend the Collateral against and take
such other action as is necessary to remove, any Lien on the Collateral
except Permitted Liens, and will defend the right, title and interest of
Lender in and to any of such Grantor's rights under the Chattel Paper,
Contracts, Documents, General Intangibles and Instruments and to the
Equipment and Inventory and in and to the Proceeds thereof against the
claims and demands of all Persons whomsoever.
(h) Maintenance of Insurance. Such Grantor will maintain, with
financially sound and reputable companies, insurance policies (i) insuring
its Inventory and Equipment against loss by fire, explosion, theft and
such other casualties as are usually insured against by companies engaged
in the same or similar businesses and (ii) insuring such Grantor and
Lender against liability for personal injury and property damage relating
to such Inventory and Equipment, such policies to be in such amounts and
against at least such risks as are usually insured against in the same
general area by companies engaged in the same or a similar business,
naming Lender as an additional insured with losses payable to such Grantor
and Lender as their respective interests may appear under a
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standard "lender loss-payable" clause. Such Grantor shall, if so requested
by Lender, deliver to Lender as often as Lender may reasonably request a
report of a reputable insurance broker satisfactory to Lender with respect
to the insurance on its Inventory and Equipment. All insurance with
respect to the Inventory and Equipment shall (i) contain a clause which
provides that Lender's interest under the policy will not be invalidated
by any act or omission of, or any breach of warranty by, the insured, or
by any change in the title, ownership or possession of the insured
property, or by the use of the property for purposes more hazardous than
is permitted in the policy, and (ii) provide that no cancellation,
reduction in amount or change in coverage thereof shall be effective until
at least ten (10) days after receipt by Lender of written notice thereof.
i) Limitations on Disposition. Such Grantor will not sell, lease,
transfer or otherwise dispose of any of the Collateral, or attempt or
contract to do so except as permitted by Section 6.5 of the Loan Agreement
and except for sales of Inventory in the ordinary course of business.and
except for sales of Inventory in the ordinary course of business.
(j) Further Identification of Collateral. Such Grantor will if so
requested by Lender furnish to Lender, as often as Lender reasonably
requests, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
Lender may reasonably request, all in reasonable detail.
(k) Notices. Such Grantor will advise Lender promptly, in reasonable
detail, (i) of any material lien, security interest, encumbrance or claim
made or asserted against any of the Collateral, (ii) of any material
change in the composition of the Collateral, and (iii) of the occurrence
of any other event which would have a material adverse effect on the
aggregate value of the Collateral or on the security interests created
hereunder.
(l) Right of Inspection. Upon reasonable notice to such Grantor
(unless a Default or an Event of Default has occurred and is continuing,
in which case no notice is necessary), Lender shall at all times have full
and free access during normal business hours to all the books and records
and correspondence of such Grantor, and Lender or its representatives may
examine the same, take extracts therefrom and make photocopies thereof,
and such Grantor agrees to render to Lender, at such Grantor's cost and
expense, such clerical and other assistance as may be reasonably requested
with regard thereto. Upon reasonable notice to such Grantor (unless a
Default or an Event of Default has occurred and is continuing, in which
case no notice is necessary), Lender and its representatives shall also
have the right to enter into and upon any premises where any of the
Equipment or Inventory is located for the purpose of inspecting the same,
observing its use or otherwise protecting its interests therein.
(m) Maintenance of Equipment. Such Grantor will keep and maintain
the Equipment in good operating condition sufficient for the continuation
of the business conducted by such Grantor on a basis consistent with past
practices, and such Grantor will provide all maintenance and service and
all repairs necessary for such purpose.
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(n) Continuous Perfection. Such Grantor will not change its name,
identity or corporate structure in any manner which might make any
financing or continuation statement filed in connection herewith seriously
misleading within the meaning of section 9.402(7) of the UCC (or any other
then applicable provision of the UCC) unless such Grantor shall have given
Lender at least thirty (30) days' prior written notice thereof and shall
have taken all action (or made arrangements to take such action
substantially simultaneously with such change if it is impossible to take
such action in advance) necessary or reasonably requested by Lender to
amend such financing statement or continuation statement so that it is not
seriously misleading.
(o) Covenants Regarding Intellectual Property Collateral.
(i) Such Grantor shall notify Lender immediately if it knows
or has reason to know that any application or registration relating
to any Trademark which is material to the conduct of such Grantor's
business may become abandoned or dedicated, or of any adverse
determination or development (including, without limitation, the
institution of, or any such determination or development in, any
proceeding in the United States Patent and Trademark Office or any
court) regarding such Grantor's ownership of any Trademark which is
material to the conduct of such Grantor's business, its right to
register the same, or to keep and maintain the same.
(ii) In no event shall such Grantor, either itself or through
any agent, employee, licensee or designee, file an application for
the registration of any Trademark with the United States Patent or
Trademark Office or any similar office or agency in any other
country or any political subdivision thereof, unless it promptly
informs Lender, and, upon request of Lender, executes and delivers
any and all agreements, instruments, documents, and papers as Lender
may request to evidence Lender's security interest in such Trademark
and the General Intangibles, including, without limitation, the
goodwill of such Grantor, relating thereto or represented thereby.
(iii) Such Grantor will take all necessary and appropriate
actions, including, without limitation, in any proceeding before the
United States Patent and Trademark Office, to maintain and pursue
each application (and to obtain the relevant registration) and to
maintain each registration of the Trademarks which are material to
the conduct of such Grantor's business, including, without
limitation, filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition cancellation
proceedings.
(iv) In the event that any of the Intellectual Property
Collateral is infringed, misappropriated or diluted by a third
party, such Grantor shall notify Lender promptly after it learns
thereof and shall, unless such Grantor shall reasonably determine
that such Intellectual Property Collateral is not material to the
conduct of such Grantor's business, promptly xxx for infringement,
misappropriation or dilution and to recover any and all damages for
such infringement, misappropriation or dilution, and take such other
actions as such
11
Grantor shall reasonably deem appropriate under the circumstances to
protect such Intellectual Property Collateral.
6. Lender's Appointment as Attorney-in-Fact. (a) Each Grantor hereby
irrevocably constitutes and appoints Lender and any officer or agent thereof,
with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such Grantor and
in the name of such Grantor or in its own name, from time to time in Lender's
discretion, for the purpose of carrying out the terms of this Security
Agreement, to take any and all appropriate action and to execute and deliver any
and all documents and instruments which may be necessary or desirable to
accomplish the purposes of this Security Agreement and, without limiting the
generality of the foregoing, hereby gives Lender the power and right, on behalf
of such Grantor, without notice to or assent by such Grantor to do the
following:
(i) to ask, demand, collect, receive and give acquittances and
receipts for any and all moneys due and to become due under any
Collateral and, in the name of such Grantor or its own name or
otherwise, to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other Instruments for the payment of
moneys due under any Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or
otherwise deemed appropriate by Lender for the purpose of collecting
any and all such moneys due under any Collateral whenever payable
and to file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by Lender
for the purpose of collecting any and all such moneys due under any
Collateral whenever payable;
(ii) to pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against the
Collateral, to effect any repairs or any insurance called for by the
terms of this Security Agreement and to pay all or any part of the
premiums therefor and the costs thereof; and
(iii) (A) to direct any party liable for any payment under any
of the Collateral to make payment of any and all moneys due, and to
become due thereunder, directly to Lender or as Lender shall direct;
(B) to receive payment of and receipt for any and all moneys, claims
and other amounts due, and to become due at any time, in respect of
or arising out of any Collateral; (C) to sign and indorse any
invoices, freight or express bills, bills of lading, storage or
warehouse receipts, drafts against debtors, assignments,
verifications and notices in connection with accounts and other
Documents constituting or relating to the Collateral; (D) to
commence and prosecute any suits, actions or proceedings at law or
in equity in any court of competent jurisdiction to collect the
Collateral or any part thereof and to enforce any other right in
respect of any Collateral; (E) to defend any suit, action or
proceeding brought against such Grantor with respect to any
Collateral; (F) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give
such discharges or releases as Lender may deem appropriate; (G) to
license or, to the extent permitted by an applicable license,
sublicense, whether general, special or otherwise, and whether
12
on an exclusive or non-exclusive basis, any Copyright, Patent or
Trademark, throughout the world for such term or terms, on such
conditions, and in such manner, as Lender shall in its sole
discretion determine; and (H) generally to sell, transfer, pledge,
make any agreement with respect to or otherwise deal with any of the
Collateral as fully and completely as though Lender were the
absolute owner thereof for all purposes, and to do, at Lender's
option and such Grantor's expense, at any time, or from time to
time, all acts and things which Lender reasonably deems necessary to
protect, preserve or realize upon the Collateral and Lender's Lien
therein, in order to effect the intent of this Security Agreement,
all as fully and effectively as such Grantor might do.
(b) Lender agrees that, except upon the occurrence and during the
continuation of a Default or an Event of Default, it will forebear from
exercising the power of attorney or any rights granted to Lender pursuant to
this Section 6. Each Grantor hereby ratifies, to the extent permitted by law,
all that said attorneys shall lawfully do or cause to be done by virtue hereof.
The power of attorney granted pursuant to this Section 6 is a power coupled with
an interest and shall be irrevocable until the Secured Obligations are
indefeasibly paid in full.
(c) The powers conferred on Lender hereunder are solely to protect
Lender's interests in the Collateral and shall not impose any duty upon it to
exercise any such powers. Lender shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither it nor
any of its officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act, except for its own gross negligence or
willful misconduct.
(d) Each Grantor also authorizes Lender, at any time and from time
to time upon the occurrence and during the continuation of any Default or Event
of Default, (i) to communicate in its own name with any party to any Contract
with regard to the assignment of the right, title and interest of such Grantor
in and under the Contracts hereunder and other matters relating thereto and (ii)
to execute, in connection with the sale provided for in Section 8 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
7. Performance by Lender of Grantors' Obligations. If any Grantor
fails to perform or comply with any of its agreements contained herein and
Lender, as provided for by the terms of this Security Agreement, shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the reasonable expenses of Lender incurred in connection with such
performance or compliance, together with interest thereon at the rate then in
effect in respect of the Loans, shall be payable by such Grantor to Lender on
demand and shall constitute Secured Obligations secured hereby.
8. Remedies, Rights Upon Default. (a) If any Default or Event of
Default shall occur and be continuing, Lender may exercise in addition to all
other rights and remedies granted to it in this Security Agreement and in any
other instrument or agreement securing, evidencing or relating to the Secured
Obligations, all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, each Grantor expressly agrees that in
any such event Lender, without demand of performance or other demand,
advertisement or notice of any
13
kind (except the notice specified below of time and place of public or private
sale) to or upon such Grantor or any other person (all and each of which
demands, advertisements and/or notices are hereby expressly waived to the
maximum extent permitted by the UCC and other applicable law), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give an option or options to
purchase, or sell or otherwise dispose of and deliver said Collateral (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange or broker's board or at any of Lender's
offices or elsewhere at such prices as it may deem best, for cash or on credit
or for future delivery without assumption of any credit risk. Lender shall have
the right upon any such public sale or sales, and, to the extent permitted by
law, upon any such private sale or sales, to purchase the whole or any part of
said Collateral so sold, free of any right or equity of redemption, which equity
of redemption such Grantor hereby releases. Each Grantor further agrees, at
Lender's request, to assemble the Collateral and make it available to Lender at
places which Lender shall reasonably select, whether at such Grantor's premises
or elsewhere. The Lender shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale, as provided in Section
8(d) hereof, such Grantor remaining liable for any deficiency remaining unpaid
after such application, and only after so paying over such net proceeds and
after the payment by Lender of any other amount required by any provision of
law, including section 9.504(1)(c) of the UCC, need Lender account for the
surplus, if any, to such Grantor. To the maximum extent permitted by applicable
law, each Grantor waives all claims, damages, and demands against Lender arising
out of the repossession, retention or sale of the Collateral except such as
arise out of the gross negligence or wilful misconduct of Lender. Each Grantor
agrees that the Lender need not give more than ten (10) days' notice (which
notification shall be deemed given when mailed or delivered on an overnight
basis, postage prepaid, addressed to such Grantor at its address referred to in
Section 11 hereof) of the time and place of any public sale or of the time after
which a private sale may take place and that such notice is reasonable
notification of such matters. Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all amounts to which Lender is entitled, such Grantor also
being liable for the fees of any attorneys employed by Lender to collect such
deficiency.
(b) Each Grantor also agrees to pay all costs of Lender, including,
without limitation, reasonable attorneys' fees, incurred in connection with the
enforcement of any of its rights and remedies hereunder.
(c) Each Grantor hereby waives presentment, demand, protest or any
notice (to the maximum extent permitted by applicable law) of any kind in
connection with this Security Agreement or any Collateral.
(d) The Proceeds of any sale, disposition or other realization upon
all or any part of the Collateral shall be distributed by Lender in the
following order of priorities:
first, to Lender in an amount sufficient to pay in full the expenses
of Lender in connection with such sale, disposition or other realization,
including all expenses, liabilities and advances incurred or made by
Lender in connection therewith, including, without limitation, attorney's
fees;
14
second, to Lender in an amount equal to the then unpaid principal of
and accrued interest and prepayment premiums, if any, on the Secured
Obligations;
third, to Lender in an amount equal to any other Secured Obligations
which are then unpaid; and
finally, upon payment in full of all of the Secured Obligations, to
pay to the Grantor, or its representative or as a court of competent
jurisdiction may direct, any surplus then remaining from such Proceeds.
8. Grant of License to Use Intellectual Property Collateral. For the
purpose of enabling Lender to exercise rights and remedies under Section 8
hereof at such time as Lender, without regard to this Section 9, shall be
lawfully entitled to exercise such rights and remedies, each Grantor hereby
grants to Lender an irrevocable, non-exclusive license (exercisable without
payment of royalty or other compensation to any Grantor) to use, license or
sublicense any Copyright, Patent, Trade Secret or Trademark, now owned or
hereafter acquired by such Grantor, and wherever the same may be located, and
including, without limitation, in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
and automatic machinery software and programs used for the compilation or
printout thereof.
9. Limitation on Lender's Duty in Respect of Collateral. Lender
shall not have any duty as to any Collateral in its possession or control or in
the possession or control of any agent or nominee of it or any income thereon or
as to the preservation of rights against prior parties or any other rights
pertaining thereto, except that Lender shall use reasonable care with respect to
the Collateral in its possession or under its control. Upon request of any
Grantor, Lender shall account for any moneys received by it in respect of any
foreclosure on or disposition of the Collateral.
10. Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Grantor for liquidation or reorganization, should any Grantor become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of any
Grantor's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
11. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other party, or whenever any of the parties desires to give or
serve upon any other communication with respect to this Security Agreement, each
such notice, demand, request, consent, approval, declaration or other
15
communication shall be in writing and either shall be delivered in person with
receipt acknowledged or sent by registered or certified mail, return receipt
requested, postage prepaid, or by telecopy and confirmed by telecopy answerback
addressed as follows:
The Borrower:
CyNet, Inc.
00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx,
Vice President, General Counsel and Secretary
Fax: (000) 000-0000
With a copy to:
Xxxxxxxxxxx Xxxxxxxx White Xxxxxxxx & Xxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Spring III
Fax: (000) 000-0000
The Lender:
Xxxxxx XxXxxxxx
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxxxxx
Three Riverway, 18th Floor
Houston, Texas 77056
Attention: Xxxxxx Xxxxxxxxx
Fax: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback or
three (3) Business Days after the same shall have been deposited in the United
States mail. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other
16
communication to the persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.
12. Severability. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
13. No Waiver; Cumulative Remedies. Lender shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
Lender, and then only to the extent therein set forth. A waiver by Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Lender would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law. None of the
terms or provisions of this Security Agreement may be waived, altered, modified
or amended except by an instrument in writing, duly executed by Lender and,
where applicable by the Grantors.
14. Successors and Assigns; Governing Law. (a) This Security
Agreement and all obligations of each Grantor hereunder shall be binding upon
the successors and assigns of such Grantor, and shall, together with the rights
and remedies of Lender hereunder, inure to the benefit of Lender, all future
holders of the Notes and their respective successors and assigns. No sales of
participations, other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any portion
thereof or interest therein shall in any manner affect the security interest
granted to Lender hereunder.
(b) This Security Agreement shall be governed by, and be construed
and interpreted in accordance with, the laws of the State of Texas, without
regard to the provisions thereof relating to conflict of laws.
15. Use and Protection of Intellectual Property Collateral.
Notwithstanding anything to the contrary contained herein, unless a Default or
Event of Default has occurred and is continuing, Lender shall from time to time
execute and deliver, upon the written request of any Grantor, any and all
instruments, certificates or other documents, in the form so requested,
necessary or appropriate in the judgment of such Grantor to permit such Grantor
to continue to exploit, license, use, enjoy and protect the Intellectual
Property.
16. Further Indemnification. Each Grantor agrees to pay, and to save
Lender harmless from, any and all liabilities with respect to, or resulting from
any delay in paying, any and all excise, sales or other similar taxes which may
be payable or determined to be payable
17
with respect to any of the Collateral or in connection with any of the
transactions contemplated by this Security Agreement.
17. Waiver of Jury Trial. Each Grantor waives all right to trial by
jury in any action or proceeding to enforce or defend any rights or remedies
hereunder, under the Loan Agreement or under the other Loan Documents or
relating to each of the foregoing.
18
IN WITNESS WHEREOF, each of the parties hereto has caused this
Security Agreement to be executed and delivered by its duly authorized officer
on the date first set forth above.
CYNET, INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chairman & C.E.O.
SUBSIDIARIES:
By: /s/ Xxxxxxx X. Xxxxx, Xx.
------------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chairman & C.E.O.
Accepted and acknowledged by:
CRTLP, Inc., as Lender
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: General Partner
G&B XxXxxxxx Family Limited Partnership, as Lender
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: Trustee
Xxxxxx X. XxXxxxxx, as Lender
By: /s/ Xxxxxx X. XxXxxxxx
----------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title:
---------------------------------------
19
SCHEDULE I
FILINGS
GRANTOR JURISDICTION FILING OFFICE
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20
SCHEDULE II
LOCATION OF RECORDS AND CERTAIN COLLATERAL
Principal Place of Business and Location of Inventory
Grantor Location of Records and Equipment
------- ------------------------------- ---------------------
21
