SECURITY AGREEMENT
Exhibit
10.11
SECURITY
AGREEMENT (this “Agreement”),
dated
as of June 28, 2006, by and among Enigma Software Group, Inc., a Delaware
corporation (“Company”),
and
Dutchess Private Equities Fund, LP & Dutchess Private Equities Fund, II, LP,
both Delaware Limited partnerships, as the secured parties signatory hereto
and
their respective endorsees, transferees and assigns (collectively, the
“Secured
Party”)
(sometimes hereinafter the Company and the Secured Party are collectively
referred to as the “parties”).
WITNESSETH:
WHEREAS,
pursuant to Subscription Agreement, dated the date hereof between Company and
the Secured Party (the “Subscription
Agreement”),
the
Company has agreed to issue to the Secured Party and the Secured Party has
agreed to purchase from Company twelve percent (12%) Secured Convertible
Debentures, due five years from the date of issue (the “Debentures”),
which
are convertible into shares of Company’s Common Stock, par value $.001 per share
(the “Common
Stock”).
In
connection therewith, Company shall issue to the Secured Party certain Common
Stock purchase warrants dated as of the date hereof to purchase the number
of
shares of Common Stock (the “Warrants”);
and
WHEREAS,
in order to induce the Secured Party to purchase the Debentures, Company has
agreed to execute and deliver to the Secured Party this Agreement for the
benefit of the Secured Party and to grant to it a first priority security
interest in certain property of Company to secure the prompt payment,
performance and discharge in full of all of Company’s obligations under the
Debentures and exercise and discharge in full of Company’s obligations under the
Warrants.
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the meanings set forth in
this
Section 1. Terms used but not otherwise defined in this Agreement that are
defined in Article 9 of the UCC (such as “general
intangibles”
and
“proceeds”)
shall
have the respective meanings given such terms in Article 9 of the
UCC.
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(a)
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“Collateral”
means
the Company Collateral and Share Collateral as described
herein.
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(b)
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"Company
Collateral” means
the collateral in which the Secured Party is granted a security interest
by this Agreement and which shall include the following, whether
presently
owned or existing or hereafter acquired or coming into existence,
and all
additions and accessions thereto and all substitutions and replacements
thereof, and all proceeds, products and accounts thereof, including,
without limitation, all proceeds from the sale or transfer of the
Company
Collateral and of insurance covering the same and of any tort claims
in
connection therewith.
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1
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(i)
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All
Goods of the Company, including, without limitation, all machinery,
inventory, equipment, computers, motor vehicles, trucks, tanks, boats,
ships, appliances, furniture, special and general tools, fixtures,
test
and quality control devices and other equipment of every kind and
nature
and wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the
foregoing
and all other items used and useful in connection with the Company’s
businesses and all improvements thereto (collectively, the “Equipment”);
and
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(ii)
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All
of the Company’s contract rights and general intangibles, including,
without limitation, all partnership interests, stock or other securities,
licenses, distribution and other agreements, computer software development
rights, leases, franchises, customer lists, quality control procedures,
grants and rights, goodwill, trademarks, service marks, trade styles,
trade names, patents, patent applications, copyrights, deposit accounts,
and income tax refunds (collectively, the “General
Intangibles”);
and
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(iii)
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All
Receivables of the Company including all insurance proceeds, and
rights to
refunds or indemnification whatsoever owing, together with all
instruments, all documents of title representing any of the foregoing,
all
rights in any merchandising, goods, equipment, motor vehicles and
trucks
which any of the same may represent, and all right, title, security
and
guaranties with respect to each Receivable, including any right of
stoppage in transit; and
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(iv)
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All
of the Company’s documents, instruments and chattel paper, files, records,
books of account, business papers, computer programs and the products
and
proceeds of all of the foregoing Collateral set forth in clauses
(i)-(iv)
above.
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(c)
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“Company”
shall mean, collectively, Company and all of the subsidiaries of
Company,
a list of which is contained in Schedule
A,
attached hereto.
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(d)
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“Obligations”
means all of the Company’s obligations under this Agreement and the
Debentures, in each case, whether now or hereafter existing, voluntary
or
involuntary, direct or indirect, absolute or contingent, liquidated
or
unliquidated, whether or not jointly owed with others, and whether
or not
from time to time decreased or extinguished and later decreased,
created
or incurred, and all or any portion of such obligations or liabilities
that are paid, to the extent all or any part of such payment is avoided
or
recovered directly or indirectly from the Secured Party as a preference,
fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to
time.
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(e)
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"Share
Collateral" means
any Shares of the Company's Common Stock, options to purchase Shares
of
Common Stock and preferred shares currently owned or hereinafter
acquired
by the Company's management and directors, whether individually owned
or
through an affiliate of an insider, including but not limited to:
trusts,
corporations and LLC's.,
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2
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(f)
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“UCC”
means the Uniform Commercial Code, as currently in effect in the
Commonwealth of Massachusetts.
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2. Grant
of Security Interest.
As an
inducement for the Secured Party to purchase the Debentures and to secure the
complete and timely payment, performance and discharge in full, as the case
may
be, of all of the Obligations, the Company hereby, unconditionally and
irrevocably, pledges, grants and hypothecates to the Secured Party, a continuing
security interest in, a continuing first lien upon, an unqualified right to
possession and disposition of and a right of set-off against, in each case
to
the fullest extent permitted by law, all of the Company’s right, title and
interest of whatsoever kind and nature in and to the Collateral (the
“Security
Interest”).
3. Representations,
Warranties, Covenants and Agreements of the Company.
The
Company represents and warrants to, and covenants and agrees with, the Secured
Party as follows:
(a) The
Company has the requisite corporate power and authority to enter into this
Agreement and otherwise to carry out its obligations thereunder. The execution,
delivery and performance by the Company of this Agreement and the filings
contemplated therein have been duly authorized by all necessary action on the
part of the Company and no further action is required by the Company. This
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditor’s rights generally.
(b) The
Company represents and warrants that it has no place of business or offices
where its respective books of account and records are kept (other than
temporarily at the offices of its attorneys or accountants) or places where
Collateral is stored or located, except as set forth on Schedule
A
attached
hereto;
(c) The
Company is the sole owner of the Collateral (except for non-exclusive licenses
granted by the Company in the ordinary course of business), free and clear
of
any liens, security interests, encumbrances, rights or claims, and is fully
authorized to grant the Security Interest in and to pledge the Collateral.
There
is not on file in any governmental or regulatory authority, agency or recording
office an effective financing statement, security agreement, license or transfer
or any notice of any of the foregoing (other than those that have been filed
in
favor of the Secured Party pursuant to this Agreement) covering or affecting
any
of the Collateral. So long as this Agreement shall be in effect, the Company
shall not execute and shall not knowingly permit to be on file in any such
office or agency any such financing statement or other document or instrument
(except to the extent filed or recorded in favor of the Secured Party pursuant
to the terms of this Agreement).
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(d) No
part
of the Collateral has been judged invalid or unenforceable. No written claim
has
been received that any Collateral or the Company’s use of any Collateral
violates the rights of any third party. There has been no adverse decision
to
the Company’s claim of ownership rights in or exclusive rights to use the
Collateral in any jurisdiction or to the Company’s right to keep and maintain
such Collateral in full force and effect, and there is no proceeding involving
said rights pending or, to the best knowledge of the Company, threatened before
any court, judicial body, administrative or regulatory agency, arbitrator or
other governmental authority.
(e) The
Company shall at all times maintain its books of account and records relating
to
the Collateral at its principal place of business and its Collateral at the
locations set forth on Schedule
A
attached
hereto and may not relocate such books of account and records or tangible
Collateral unless it delivers to the Secured Party at least 30 days prior to
such relocation (i) written notice of such relocation and the new location
thereof (which must be within the United States) and (ii) evidence that
appropriate financing statements and other necessary documents have been filed
and recorded and other steps have been taken to perfect the Security Interest
to
create in favor of the Secured Party valid, perfected and continuing first
priority liens in the Collateral.
(f) This
Agreement creates in favor of the Secured Party a valid security interest in
the
Collateral securing the payment and performance of the Obligations and, upon
making the filings described in the immediately following sentence, a perfected
first priority security interest in such Collateral. Except for the filing
of
financing statements on Form-1 under the UCC with the jurisdictions indicated
on
Schedule
B,
attached hereto, no authorization or approval of or filing with or notice to
any
governmental authority or regulatory body is required either (i) for the grant
by the Company of, or the effectiveness of, the Security Interest granted hereby
or for the execution, delivery and performance of this Agreement by the Company
or (ii) for the perfection of or exercise by the Secured Party of its rights
and
remedies hereunder.
(g) On
the
date of execution of this Agreement, the Company will deliver to the Secured
Party one or more executed UCC financing statements on Form-1 with respect
to
the Security Interest for filing with the jurisdictions indicated on
Schedule
B,
attached hereto and in such other jurisdictions as may be requested by the
Secured Party.
(h) The
execution, delivery and performance of this Agreement does not conflict with
or
cause a breach or default, or an event that with or without the passage of
time
or notice, shall constitute a breach or default, under any agreement to which
the Company is a party or by which the Company is bound. No consent (including,
without limitation, from stock holders or creditors of the Company) is required
for the Company to enter into and perform its obligations
hereunder.
(i) The
Company shall at all times maintain the liens and Security Interest provided
for
hereunder as valid and perfected first priority liens and security interests
in
the Collateral in favor of the Secured Party until this Agreement and the
Security Interest hereunder shall terminate pursuant to Section 11. The Company
hereby agrees to defend the same against any and all persons. The Company shall
safeguard and protect all Collateral for the account of the Secured Party.
At
the request of the Secured Party, the Company will sign and deliver to the
Secured Party at any time or from time to time one or more financing statements
pursuant to the UCC (or any other applicable statute) in form reasonably
satisfactory to the Secured Party and will pay the cost of filing the same
in
all public offices wherever filing is, or is deemed by the Secured Party to
be,
necessary or desirable to effect the rights and obligations provided for herein.
Without limiting the generality of the foregoing, the Company shall pay all
fees, taxes and other amounts necessary to maintain the Collateral and the
Security Interest hereunder, and the Company shall obtain and furnish to the
Secured Party from time to time, upon demand, such releases and/or
subordinations of claims and liens which may be required to maintain the
priority of the Security Interest hereunder.
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(j) The
Company will not transfer, pledge, hypothecate, encumber, license (except for
non-exclusive licenses granted by the Company in the ordinary course of
business), sell or otherwise dispose of any of the Collateral without the prior
written consent of the Secured Party.
(k) The
Company shall keep and preserve its Equipment, Inventory and other tangible
Collateral in good condition, repair and order and shall not operate or locate
any such Collateral (or cause to be operated or located) in any area excluded
from insurance coverage.
(l) The
Company shall, within ten (10) days of obtaining knowledge thereof, advise
the
Secured Party promptly, in sufficient detail, of any substantial change in
the
Collateral, and of the occurrence of any event which would have a material
adverse effect on the value of the Collateral or on the Secured Party’s security
interest therein.
(m) The
Company shall promptly execute and deliver to the Secured Party such further
deeds, mortgages, assignments, security agreements, financing statements or
other instruments, documents, certificates and assurances and take such further
action as the Secured Party may from time to time request and may in its sole
discretion deem necessary to perfect, protect or enforce its security interest
in the Collateral
(n) The
Company shall permit the Secured Party and its representatives and agents to
inspect the Collateral at any time, and to make copies of records pertaining
to
the Collateral as may be requested by the Secured Party from time to
time.
(o) The
Company will take all steps reasonably necessary to diligently pursue and seek
to preserve, enforce and collect any rights, claims, causes of action and
accounts receivable in respect of the Collateral.
(p) The
Company shall promptly notify the Secured Party in sufficient detail upon
becoming aware of any attachment, garnishment, execution or other legal process
levied against any Collateral and of any other information received by the
Company that may materially affect the value of the Collateral, the Security
Interest or the rights and remedies of the Secured Party hereunder.
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(q) All
information heretofore, herein or hereafter supplied to the Secured Party by
or
on behalf of the Company with respect to the Collateral is accurate and complete
in all material respects as of the date furnished.
(r) Schedule
A
attached
hereto contains a list of all of the subsidiaries of Company.
4. Defaults.
The
following events shall be “Events
of Default”:
(a)The
occurrence of an Event of Default (as defined in the Transaction Documents)
under the Transaction Documents, or breach of the terms of the Transaction
Documents.
(b)Any
representation or warranty of the Company in this Agreement shall prove to
have
been incorrect in any material respect when made;
(c)The
failure by the Company to observe or perform any of its obligations hereunder
for five (5) days after receipt by the Company of notice of such failure from
the Secured Party.
5. Duty
To Hold In Trust.
Upon
the occurrence of any Event of Default and at any time thereafter, the Company
shall, upon receipt by it of any revenue, income or other sums subject to the
Security Interest, whether payable pursuant to the Debentures or otherwise,
or
of any check, draft, note, trade acceptance or other instrument evidencing
an
obligation to pay any such sum, hold the same in trust for the Secured Party
and
shall forthwith endorse and transfer any such sums or instruments, or both,
to
the Secured Party for application to the satisfaction of the
Obligations.
6. Rights
and Remedies Upon Default.
Upon
occurrence of any Event of Default and at any time thereafter, the Secured
Party
shall have the right to exercise all of the remedies conferred hereunder and
under the Debentures, and the Secured Party shall have all the rights and
remedies of a secured party under the UCC and/or any other applicable law
(including the Uniform Commercial Code of any jurisdiction in which any
Collateral is then located). Without limitation, the Secured Party shall have
the following rights and powers:
(a) The
Secured Party shall have the right to take possession of the Collateral set
forth in Section 1 (a), and, for that purpose, enter, with the aid and
assistance of any person, any premises where the Collateral, or any part
thereof, is or may be placed and remove the same, and the Company shall assemble
the Collateral and make it available to the Secured Party at places which the
Secured Party shall reasonably select, whether at the Company’s premises or
elsewhere, and make available to the Secured Party, without rent, all of the
Company’s respective premises and facilities for the purpose of the Secured
Party taking possession of, removing or putting the Collateral in saleable
or
disposable form.
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(b) The
Secured Party shall have the right to operate the business of the Company using
the Collateral and shall have the right to assign, sell, lease or otherwise
dispose of and deliver all or any part of the Collateral, at public or private
sale or otherwise, either with or without special conditions or stipulations,
for cash or on credit or for future delivery, in such parcel or parcels and
at
such time or times and at such place or places, and upon such terms and
conditions as the Secured Party may deem reasonable, all without (except as
shall be required by applicable statute and cannot be waived) advertisement
or
demand upon or notice to the Company or right of redemption of the Company,
which are hereby expressly waived. Upon each such sale, lease, assignment or
other transfer of Collateral, the Secured Party may, unless prohibited by
applicable law which cannot be waived, purchase all or any part of the
Collateral being sold, free from and discharged of all trusts, claims, right
of
redemption and equities of the Company, which are hereby waived and
released.
7. Applications
of Proceeds.
The
proceeds of any such sale, lease or other disposition of the Collateral
hereunder shall be applied first, to the expenses of retaking, holding, storing,
processing and preparing for sale, selling, and the like (including, without
limitation, any taxes, fees and other costs incurred in connection therewith)
of
the Collateral, to the reasonable attorneys’ fees and expenses incurred by the
Secured Party in enforcing its rights hereunder and in connection with
collecting, storing and disposing of the Collateral, and then to satisfaction
of
the Obligations, and to the payment of any other amounts required by applicable
law, after which the Secured Party shall immediately pay to the Company any
surplus proceeds. If, upon the sale, license or other disposition of the
Collateral, the proceeds thereof are insufficient to pay all amounts to which
the Secured Party is legally entitled, the Company will be liable for the
deficiency, together with interest thereon, at the rate of 18% per annum (the
“Default
Rate”),
and
the reasonable fees of any attorneys employed by the Secured Party to collect
such deficiency. To the extent permitted by applicable law, the Company waives
all claims, damages and demands against the Secured Party arising out of the
repossession, removal, retention or sale of the Collateral, unless due to the
gross negligence or willful misconduct of the Secured Party.
8. Costs
and Expenses. The
Company agrees to pay all out-of-pocket fees, costs and expenses incurred in
connection with any filing required hereunder, including without limitation,
any
financing statements, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Secured Party. The Company shall also pay all other
claims and charges which in the reasonable opinion of the Secured Party might
prejudice, imperil or otherwise affect the Collateral or the Security Interest
therein. The Company will also, upon demand, pay to the Secured Party the amount
of any and all reasonable expenses, including the reasonable fees and expenses
of its counsel and of any experts and agents, which the Secured Party may incur
in connection with (i) the enforcement of this Agreement, (ii) the custody
or
preservation of, or the sale of, collection from, or other realization upon,
any
of the Collateral, or (iii) the exercise or enforcement of any of the rights
of
the Secured Party under the Debentures. Until so paid, any fees payable
hereunder shall be added to the principal amount of the Debentures and shall
bear interest at the Default Rate.
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9. Responsibility
for Collateral.
The
Company assumes all liabilities and responsibility in connection with all
Collateral, and the obligations of the Company hereunder or under the
Transaction Documents shall in no way be affected or diminished by reason of
the
loss, destruction, damage or theft of any of the Collateral or its
unavailability for any reason.
10. Security
Interest Absolute.
All
rights of the Secured Party and all Obligations of the Company hereunder, shall
be absolute and unconditional, irrespective of: (a) any lack of validity or
enforceability of this Agreement, the Debentures, the Warrants or any agreement
entered into in connection with the foregoing, or any portion hereof or thereof;
(b) any change in the time, manner or place of payment or performance of, or
in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Debentures, the Warrants
or
any other agreement entered into in connection with the foregoing; (c) any
exchange, release or nonperfection of any of the Collateral, or any release
or
amendment or waiver of or consent to departure from any other collateral for,
or
any guaranty, or any other security, for all or any of the Obligations; (d)
any
action by the Secured Party to obtain, adjust, settle and cancel in its sole
discretion any insurance claims or matters made or arising in connection with
the Collateral; or (e) any other circumstance which might otherwise constitute
any legal or equitable defense available to the Company, or a discharge of
all
or any part of the Security Interest granted hereby. Until the Obligations
shall
have been paid and performed in full, the rights of the Secured Party shall
continue even if the Obligations are barred for any reason, including, without
limitation, the running of the statute of limitations or bankruptcy. The Company
expressly waives presentment, protest, notice of protest, demand, notice of
nonpayment and demand for performance. In the event that at any time any
transfer of any Collateral or any payment received by the Secured Party
hereunder shall be deemed by final order of a court of competent jurisdiction
to
have been a voidable preference or fraudulent conveyance under the bankruptcy
or
insolvency laws of the United States, or shall be deemed to be otherwise due
to
any party other than the Secured Party, then, in any such event, the Company’s
obligations hereunder shall survive cancellation of this Agreement, and shall
not be discharged or satisfied by any prior payment thereof and/or cancellation
of this Agreement, but shall remain a valid and binding obligation enforceable
in accordance with the terms and provisions hereof. The Company waives all
right
to require the Secured Party to proceed against any other person or to apply
any
Collateral which the Secured Party may hold at any time, or to marshal assets,
or to pursue any other remedy. The Company waives any defense arising by reason
of the application of the statute of limitations to any obligation secured
hereby.
11. Term
of Agreement.
This
Agreement and the Security Interest shall terminate on the date on which all
payments under the Debentures have been made in full and all other Obligations
of the Company have been paid or discharged. Upon such termination, the Secured
Party, at the request and at the expense of the Company, will join in executing
any termination statement with respect to any financing statement executed
and
filed pursuant to this Agreement.
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12. Power
of Attorney; Further Assurances.
(a) The
Company authorizes the Secured Party, and does hereby make, constitute and
appoint it, and its respective officers, agents, successors or assigns with
full
power of substitution, as the Company’s true and lawful attorney-in-fact, with
power, in its own name or in the name of the Company, to, after the occurrence
and during the continuance of an Event of Default (i) endorse any notes, checks,
drafts, money orders, or other instruments of payment (including payments
payable under or in respect of any policy of insurance) in respect of the
Collateral that may come into possession of the Secured Party; (ii) to sign
and
endorse any UCC financing statement or any invoice, freight or express xxxx,
xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and
(v)
generally, to do, at the option of the Secured Party, and at the Company’s
expense, at any time, or from time to time, all acts and things which the
Secured Party deems necessary to reasonably protect, preserve and realize upon
the Collateral and the Security Interest granted therein in order to effect
the
intent of this Agreement, the Debentures and the Warrants, all as fully and
effectually as the Company might or could do; and the Company hereby ratifies
all that said attorney shall lawfully do or cause to be done by virtue hereof.
This power of attorney is coupled with an interest and shall be irrevocable
for
the term of this Agreement and thereafter as long as any of the Obligations
shall be outstanding.
(b) On
a
continuing basis, the Company will make, execute, acknowledge, deliver, file
and
record, as the case may be, in the proper filing and recording places in any
jurisdiction, including, without limitation, the jurisdictions indicated on
Schedule
B,
attached hereto, all such instruments, and take all such action as may
reasonably be deemed necessary or advisable, or as reasonably requested by
the
Secured Party, to perfect the Security Interest granted hereunder and otherwise
to carry out the intent and purposes of this Agreement, or for assuring and
confirming to the Secured Party the grant or perfection of a security interest
in all the Collateral.
(c) The
Company hereby irrevocably appoints the Secured Party as the Company’s
attorney-in-fact, with full authority in the place and stead of the Company
and
in the name of the Company, from time to time in the Secured Party’s discretion,
to take any action and to execute any instrument which the Secured Party may
deem necessary or advisable to accomplish the purposes of this Agreement,
including the filing, in its sole discretion, of one or more financing or
continuation statements and amendments thereto, relative to any of the
Collateral without the signature of the Company where permitted by
law.
13. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing, with copies to all the other parties hereto, and shall be deemed to
have been duly given when (i) if delivered by hand, upon receipt, (ii) if sent
by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
nationally recognized overnight delivery service (receipt requested), the next
business day or (iv) if mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, four days after posting in the U.S.
mails, in each case if delivered to the following addresses:
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| If to the Company: | Colorado Xxxxx
0
Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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| If to the Secured Party: |
Dutchess
Capital Management, LLC
Xxxxxxx
Xxxxxxxx
00
Xxxxxxxxxxxx Xxx, Xxxxx 0
Xxxxxx,
XX 00000
(617)
301-4700
(000)
000-0000
|
14. Other
Security.
To the
extent that the Obligations are now or hereafter secured by property other
than
the Collateral or by the guarantee, endorsement or property of any other person,
firm, corporation or other entity, then the Secured Party shall have the right,
in its sole discretion, to pursue, relinquish, subordinate, modify or take
any
other action with respect thereto, without in any way modifying or affecting
any
of the Secured Party’s rights and remedies hereunder.
15. Miscellaneous.
(a) No
course
of dealing between the Company and the Secured Party, nor any failure to
exercise, nor any delay in exercising, on the part of the Secured Party, any
right, power or privilege hereunder or under the Debentures shall operate as
a
waiver thereof; nor shall any single or partial exercise of any right, power
or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
(b) All
of
the rights and remedies of the Secured Party with respect to the Collateral,
whether established hereby or by the Debentures or by any other agreements,
instruments or documents or by law shall be cumulative and may be exercised
singly or concurrently.
(c) This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and is intended to supersede all prior negotiations,
understandings and agreements with respect to the subject matter hereof. Except
as specifically set forth in this Agreement, no provision of this Agreement
may
be modified or amended except by a written agreement specifically referring
to
this Agreement and signed by the parties hereto.
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(d) In
the
event that any provision of this Agreement is held to be invalid, prohibited
or
unenforceable in any jurisdiction for any reason, unless such provision is
narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited
or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective
to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions
of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other
jurisdiction.
(e) No
waiver
of any breach or default or any right under this Agreement shall be considered
valid unless in writing and signed by the party giving such waiver, and no
such
waiver shall be deemed a waiver of any subsequent breach or default or right,
whether of the same or similar nature or otherwise.
(f) This
Agreement shall be binding upon and inure to the benefit of each party hereto
and its successors and assigns.
(g) Each
party shall take such further action and execute and deliver such further
documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) The
validity, terms, performance and enforcement of this Agreement shall be governed
and construed by the provisions hereof and in accordance with the laws of the
Commonwealth of Massachusetts applicable to agreements that are negotiated,
executed, delivered and performed solely in the
Commonwealth of Massachusetts.
(i) All
disputes
arising under this agreement shall be governed by and interpreted in accordance
with the laws of the Commonwealth of Massachusetts, without regard to principles
of conflict of laws. The parties to this agreement will submit all disputes
arising under this agreement to arbitration in Boston, Massachusetts before
a
single arbitrator of the American Arbitration Association (“AAA”). The
arbitrator shall be selected by application of the rules of the AAA, or by
mutual agreement of the parties, except that such arbitrator shall be an
attorney admitted to practice law in the Commonwealth of Massachusetts. No
party
to this agreement will challenge the jurisdiction or venue provisions as
provided in this section. Nothing
in this section shall limit the Holder's right to obtain an injunction for
a
breach of this Agreement from a court of law.
11
(j) This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and, all of which taken together
shall constitute one and the same Agreement. In the event that any signature
is
delivered by facsimile transmission, such signature shall create a valid binding
obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
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*.*.*
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IN
WITNESS WHEREOF, the parties hereto have caused this Security Agreement to
be
duly executed on the day and year first above written.
|
By:
/s/
Colorado Xxxxx
Name: Colorado
Xxxxx
Title:
Executive
Chairman
By:
/s/
Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President and Chief Executive Officer
By:
/s/
Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
Chief
Financial Officer
DUTCHESS
PRIVATE EQUITIES FUND, L.P.
DUTCHESS
PRIVATE EQUITIES FUND, II, L.P.
BY
ITS GENERAL PARTNER DUTCHESS
CAPITAL
MANAGEMENT, LLC
By:
: /s/
Xxxxxxx X. Xxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxx
Title:
A Managing Member
|
13
SCHEDULE
A
Principal
Place of Business of the Company:
Locations
Where Collateral is Located or Stored:
List
of Subsidiaries of the Company including EIN:
SCHEDULE
B
Jurisdictions:
14
