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Exhibit 6.25
SECURITY AND PLEDGE AGREEMENT
THIS SECURITY AND PLEDGE AGREEMENT ("Agreement") is made as of the 22nd
day of October, 1999 by and between 12 Squared Partners, LLC, an Arizona limited
liability company ("Secured Party"), and FutureOne, Inc., a Nevada corporation
("FutureOne").
RECITALS
WHEREAS, the Secured Party has agreed to extend credit in the amount of
$500,000.00 to FutureOne (the "Loan") as evidenced by the 12% Secured
Convertible Promissory Note dated as of the date hereof (the "Note") by
FutureOne, as Maker, in favor of Secured Party; and
WHEREAS, in order to induce the Secured Party to make the Loan and to
secure payment and performance by FutureOne of its obligation under the Note,
FutureOne has agreed to pledge to the Secured Party, and grant to the Secured
Party a security interest in, Seven Hundred Ninety Five Thousand (795,000)
shares of FutureOne's common stock, par value $0.001 per share (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, FutureOne agrees with the Secured Party as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement shall have the
following respective meanings when used herein:
"Event of Default" shall have the meaning ascribed to such term in
Section 8 below.
"Pledged Collateral" shall have the meaning ascribed to such term in
Section 2 below.
"Secured Obligations" shall mean, collectively, all obligations of
payment and performance of FutureOne under the Note.
2. PLEDGE. In order to secure the prompt payment and performance of the
Secured Obligations, FutureOne hereby pledges to the Secured Party, and grants
to Secured Party a first security interest in, all its right, title and interest
in all of the following (collectively, the "Pledged Collateral"):
a. the Shares and the certificates representing the Shares,
and all securities, instruments, documents and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Shares; and
b. all proceeds and products of, and all accessions to and
substitutions for, the foregoing.
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3. DELIVERY OF SHARES. All certificates representing or evidencing the
Shares shall be issued in the name of Secured Party. The Shares shall be deemed
constructively delivered to Secured Party and will be held by an escrow agent
under terms and conditions reasonably acceptable to FutureOne and the Secured
Party.
4. REPRESENTATIONS AND WARRANTIES. FutureOne represents and warrants to
the Secured Party that:
a. It has the right and requisite authority to pledge, assign,
transfer, deliver, deposit and set over the Pledged Collateral to the Secured
Party as provided herein;
b. No consent, approval, authorization or other order of any
person or entity is required for the execution and delivery of this Agreement or
the delivery of the Pledged Collateral to the Secured Party as provided herein
which has not been obtained; and
c. This Agreement has been duly authorized, executed and
delivered by FutureOne and constitutes a legal, valid and binding obligation of
FutureOne, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency, or other similar laws affecting the
rights of creditors generally or by the application of general equity
principles.
5. MAINTENANCE OF PRIORITY OF SECURITY INTEREST. FutureOne agrees to
execute and deliver all documents reasonably requested by the Secured Party to
enable the Secured Party to perfect, preserve and protect its security interest
in and on the Pledged Collateral, and FutureOne hereby authorizes the Secured
Party to file and record any such documents for such purposes.
6. RELEASE OF PLEDGED COLLATERAL. FutureOne and Secured Party hereby
agree that a release of the Pledged Collateral from the lien of this Agreement
and return of the Pledged Collateral to FutureOne shall occur upon the earlier
of (i) final payment of $500,000.00 of such principal and all accrued and unpaid
interest (as defined in the Note); (ii) conversion of the Note into Common Stock
(as defined in the Note) or RMI Stock (as defined in the Note); or (iii)
whereupon such released Pledged Collateral shall no longer be deemed to be
Pledged Collateral for any purpose hereunder.
7. DEFAULTS AND REMEDIES. Upon the occurrence of an Event of Default
and during the continuation of such Event of Default, then or at any time after
the occurrence thereof, subject to the provisions of applicable law, the Secured
Party is hereby authorized and empowered at its election, to transfer and
register in its name the whole or any part of the Pledged Collateral, to
exercise the voting rights with respect to the Pledged Collateral, to collect
and receive all cash dividends and other distributions made on the Pledged
Collateral and to otherwise act with respect to the Pledged Collateral as though
the Secured Party were the outright owner thereof, FutureOne hereby constituting
and appointing the Secured Party as its proxy and attorney-in-fact to do so.
Notwithstanding anything to the contrary herein, the Secured Party shall have no
rights to the Pledged Collateral if the Secured Party effects an RMI Stock
Conversion (as defined in the Note) and, in the event of an RMI Stock
Conversion,
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Secured Party acknowledges and understands that the Pledged Collateral will be
released from the lien of this Agreement and returned to FutureOne in accordance
with Section 6 hereof.
8. EVENT OF DEFAULT. Any event which constitutes an Event of Default
under, and as defined in, the Note shall constitute an event of default ("Event
of Default") under this Agreement.
9. ENTIRE AGREEMENT. This Note, the other Loan Documents and any other
documents executed in connection herewith and therewith contain the entire
understanding of and supersede all prior representations, warranties,
agreements, arrangements, understandings and negotiations, written and oral,
between the Secured Party and FutureOne with respect to the subject matter
hereof and shall not be modified except in writing executed by the parties
hereto.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective successors and
assigns.
11. AMENDMENT; MODIFICATION. This Agreement may be amended, modified,
renewed or extended by only by a written instrument, executed by all of the
parties hereto in the manner of the execution of this Agreement.
12. SEVERABILITY. If any term or provision of this Agreement shall be
invalid, illegal or unenforceable to any extent, such term or provision shall
not invalidate or render unenforceable any other term or provision of this
Agreement. To the extent permitted by law, the parties hereto hereby waive any
provision of law that renders any term or provision hereof invalid or
unenforceable in any respect.
13. NOTICES. All notices, approvals, demands, consents and other
communications ("notices") provided for or otherwise given hereunder or under
any other Loan Document shall be in the English language, in writing, and shall
have been duly given and shall be effective (i) when delivered, (ii) when
transmitted via telecopy with electronic confirmation to the numbers set forth
below, (iii) the day following the day on which the same has been delivered
prepaid to a reputable national overnight courier service or (iv) the third
Business Day following the day on which the same is sent by certified or
registered mail, postage prepaid and return receipt requested, as follows:
If to Secured Party, to:
12 Squared Partners, LLC
0000 Xxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxx
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If to FutureOne, to:
FutureOne, Inc.
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all such counterparts shall together constitute but one and
the same instrument.
15. APPLICABLE LAW. The obligations of FutureOne hereunder are to be
performed in, and this Agreement is executed, delivered and accepted in, and
this Agreement shall be construed in accordance with and governed by, the
internal laws and decisions of the State of Arizona (without regard for its
conflicts of law principles), and by execution hereof FutureOne, and by
acceptance hereof, the Secured Party, each agrees that such laws and decisions
of the State of Arizona shall govern this Agreement notwithstanding the fact
that there may be other jurisdictions which may bear a reasonable relationship
to the transactions contemplated hereby; provided, however, that with respect to
procedural and substantive matters relating only to the creation, perfection and
enforcement by the Secured Party of its rights and remedies against the Pledged
Collateral located in a state other than the State of Arizona, such matter shall
be governed by the laws of such other state.
16. WAIVER OF JURY TRIAL. The Secured Party and FutureOne acknowledge
and agree that any controversy that may arise under this Agreement, or with
respect to the transactions contemplated hereby, would be based upon difficult
and complex issues and, therefore, the parties agree that any lawsuits arising
out of any such controversy shall be tried in a court of competent jurisdiction
by a judge sitting without a jury.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
FUTUREONE, INC., A NEVADA CORPORATION
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: President
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Date: December 17, 1999
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12 SQUARED PARTNERS, LLC, AN ARIZONA LIMITED
LIABILITY COMPANY
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Mgr. Mbr.
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Date: December 17, 1999
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