SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is dated as of May 4, 2003
between Network Storage solutions, Inc., a Delaware corporation ("Borrower"),
and IQ Biometrix, Inc., a Delaware corporation (the "Lender").
RECITALS
WHEREAS, the Lender has agreed to make available to Borrower a loan
totaling $200,000.00 pursuant to that certain 10% Secured Note, dated as of an
even date herewith, between the Lender and the Borrower, as amended from time to
time (the "Note"). Capitalized terms used herein without definitions shall have
the meanings given to them in the Note; and
WHEREAS, in connection with the transactions contemplated by the Note,
Borrower has agreed to grant a security interest in its assets to the Lender,
upon and subject to the terms, provisions and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and the Lender agree as
follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meaning:
"Account Debtor" shall mean any Person who is or who may become
obligated under, with respect to or on account of an Account.
"Accounts" shall mean all of Borrower's currently existing and
hereafter arising accounts, as defined in the UCC, including any contract rights
to payment arising out of the sale or lease of goods or the rendition of
services by Borrower, irrespective of whether earned by performance, and any and
all credit insurance, guarantees or security therefor.
"Collateral" shall mean all current and hereafter acquired personal
property of Borrower, including all insurance relating thereto, and including
all Accounts, Deposit Accounts, Equipment, General Intangibles, Inventory and
Negotiable Collateral, and any and all proceeds, as defined in the UCC, thereof.
"Deposit Accounts" shall mean all deposit accounts, as defined in the
UCC, now or hereafter held in Borrower's name.
"Equipment" shall mean all of Borrower's present and hereafter acquired
machinery, machine tools, motors, computers, equipment, furniture, furnishings,
fixtures, vehicles (including motor vehicles and trailers), tools, parts, goods,
wherever located, including all attachments, accessories, accessions,
replacements, substitutions, additions and improvements to any of the foregoing.
"General Intangibles" shall mean all of Borrower's present and future
general intangibles and other personal property (including contract rights,
rights arising under common law, statutes or regulations, chooses or other
things in action, goodwill, patents, trade names, trade secrets, trademarks,
service marks, copyrights, blueprints, drawings, purchase orders, customer
lists, monies due or recoverable from pension funds, route lists, rights to
payment, and other rights under any royalty or licensing agreements,
infringement claims, computer programs, information contained on computer disks
or tapes, literature, reports, catalogs, deposit accounts, insurance premium
rebates, tax refunds and tax refund claims), other than goods, Accounts and
Negotiable Collateral.
"Inventory" shall mean all present and future inventory in which
Borrower has any interest, including goods held for sale or lease or to be
furnished under a contract of service and all of Borrower's present and future
raw materials, work in process, finished goods and packing and shipping
materials, wherever located.
"Negotiable Collateral" shall mean all of Borrower's present and future
letters of credit, letter of credit rights, notes, drafts, instruments,
investment property, securities (including the shares of capital stock or other
equity or membership interests of United States subsidiaries of Borrower),
documents, personal property leases (wherein Borrower is the lessor) and chattel
paper. (Any terms used in the preceding sentence that are defined in the UCC
shall have the meanings set forth therein.).
"Permitted Liens" means the following types of liens:
(i) the security interests granted pursuant to this Agreement;
(ii) the security interest of a bank or similar institution on accounts
receivable and Inventories; (iii) liens for taxes assessments or governmental
charges or claims (a) for amounts not yet overdue or (b) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in excess
of five days) are being contested in good faith by appropriate proceedings, so
long as (A) such reserves or other appropriate provisions, if any, as shall be
required by generally accepted accounting principles shall have been made for
any such contested amounts and (B) in the case of a lien with respect to any
portion of the Collateral, such contest proceedings conclusively operate to stay
the sale of any portion of the Collateral on account of such lien; (iv) liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social security
or to secure the performance of tenders, statutory obligations, bids, leases,
government contracts, trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money), so long as no foreclosure, sale or similar proceedings have been
commenced with respect to any portion of the Collateral on account thereof; (v)
any attachment or judgment lien not constituting an Event of Default; (vi)
leases or subleases granted to third parties and not interfering in any material
respect with the ordinary conduct of the business of Borrower; (vii) liens in
favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods; (viii)
liens upon any equipment acquired or held by Borrower to secure the purchase
price of such equipment or indebtedness incurred solely for the purpose of
financing the acquisition of such equipment, so long as such lien extends only
to the equipment financed, and any accessions, replacements, substitutions and
proceeds (including insurance proceeds) thereof or thereto; and (ix) liens which
constitute rights of setoff of a customary nature or banker's liens, whether
arising by law or by contract. (x) Security interests in favor of the holders of
the Company's outstanding secured Convertible Promissory Notes or a Collateral
Agent on behalf of such holders (such security interests being hereinafter
referred to as Prior Liens) pursuant to Security Agreements dated October 21,
2002 and March 25, 2003.
"UCC" shall mean the Uniform Commercial Code, as in effect from time to
time, of the State of California or of any other state the laws of which are
required as a result thereof to be applied in connection with the issue of
perfection of security interests.
2. CREATION OF SECURITY INTEREST; COLLATERAL.
2.1 Grant of Security Interest. Borrower hereby pledges and grants to the
Lender, equal and ratably without priority over one another, a continuing
security interest (subject to the Prior Liens) in all Collateral in order to
secure prompt payment and performance of:
(a) all debts, liabilities and obligations of Borrower to the Lender, now
existing or hereafter incurred, arising out of or related to the Note and this
Agreement; (b) any and all other obligations of Borrower to the Lender, direct
or indirect, whether or not secured, and whether now existing or hereafter
incurred.
The debts, obligations and liabilities described in the above clauses
(a) and (b) above are herein referred to as the "Obligations." Lender's security
interest in the Collateral shall attach to all Collateral without further action
on the part of the Lender or Borrower.
2.2 Transfer of Collateral. Anything contained in this Agreement or any other
Loan Document to the contrary notwithstanding, Borrower shall not dispose of any
item or portion of the Collateral without the prior written consent of a
Majority in Interest of the Lender, other than (a) the sale of Inventory to
buyers in the ordinary course of business, (b) the non-exclusive license of
General Intangibles in the ordinary course of business, (c) the sale of worn-out
or surplus Equipment, (d) dispositions of leased equipment pursuant to and in
accordance with the terms of the leases relating to such equipment and (e) other
dispositions in an amount not to exceed $50,000 during any twelve-month period.
Notwithstanding the foregoing, payments in the ordinary course of business on
obligations incurred by the Borrower or its subsidiaries shall not constitute a
disposition. 2.3 Negotiable Collateral. At any time that an Event of Default has
occurred and is continuing, in the event that any Collateral is evidenced by or
consists of Negotiable Collateral, Borrower will, subject to the rights of the
holders of the Prior Liens, immediately upon request of the Lender, endorse and
deliver physical possession of such Negotiable Collateral to the Lender.
2.4 Collection of Accounts, General Intangibles and Negotiable Collateral.
License/Sale of Collateral. At any time that an Event of Default has occurred
and is continuing, the Lender or the Lender's designee may, subject to the
rights of the holders of the Prior Liens, (a) notify customers or any Account
Debtors of Borrower that the Accounts, General Intangibles or Negotiable
Collateral have been assigned to the Lender (if applicable) or that the Lender
has a security interest therein; (b) collect the Accounts, General Intangibles
and Negotiable Collateral directly and charge the collection costs and expenses
to the account of the Borrower and treat the same as a Loan hereunder; (c)
prepare for license or sale, advertise for license or sale, and license or sell
(in the manner provided for herein) the Collateral and the Lender are hereby
granted a license or other right, solely pursuant to the provisions of this
Section 2.4, to use, without charge, Borrower's intellectual property as it
pertains to the Collateral, in completing production of, advertising for license
or sale, and licensing or selling any Collateral and, in connection with the
Lender's exercise of its rights under this Section 2.4, Borrower's rights under
all Collateral shall inure to the Lender's benefit; and (d) license or sell the
Collateral at either a public or private sale, or both, by way of one or more
contracts or transactions, for cash or on terms, in such manner and at such
places (including Borrower's premises) as the Lender determine is commercially
reasonable, and apply any proceeds to the Loan obligations in whatever manner or
order the Lender deem appropriate. The Lender may disclaim any warranties in
connection therewith. 2.5 Delivery of Additional Documentation Required. At any
time upon the request of the Lender, Borrower shall at its sole expense execute
and deliver to the Lender all financing statements, continuation financing
statements, fixture filings, security agreements, pledges, assignments, control
agreements, endorsements of certificates of title, applications for title,
affidavits, reports, notices, schedules of accounts, letters of authority and
all other documents that the Lender reasonably may request, in form satisfactory
to the Lender, to perfect and continue perfected the Lender's security interest
in the Collateral, and in order to fully consummate all of the transactions
contemplated hereby.
2.6 Power of Attorney. Borrower hereby irrevocably makes, constitutes and
appoints the Lender (and any of the Lender's officers, employees or agents
designated by the Lender) as Borrower's true and lawful attorney in fact, with
power to (a) if Borrower refuses to, or fails timely to execute and deliver any
of the documents described in Section 2.5, sign the name of Borrower to any of
the documents described in Section 2.5, (b) subject to the rights of holders of
Prior Liens and Subordinate Liens, at any time that an Event of Default has
occurred and is continuing, (i) sign Borrower's name on any invoice or xxxx of
lading relating to any Account, drafts against Account Debtors, schedules and
assignments of Accounts, verifications of Accounts, and notices to Account
Debtors, (ii) send requests for verification of Accounts, (iii) endorse
Borrower's name on any Collateral in the possession of the Lender, (iv) notify
the post office authorities to change the address for delivery of Borrower's
mail to an address designated by the Lender, to receive and open all mail
addressed to Borrower, and to retain all mail relating to the Collateral and
forward all other mail to Borrower, (v) make, settle and adjust all claims under
Borrower's policies of insurance and make all determinations and decisions with
respect to such policies of insurance and (vi) settle and adjust disputes and
claims in respect of the Accounts directly with Account Debtors, for amounts and
upon terms that the Lender determine to be reasonable, and the Lender may cause
to be executed and delivered any documents and releases that the Lender
determine to be necessary. The appointment of the Lender as Borrower's attorney,
and each and every one of the Lender's rights and powers, being coupled with an
interest, is irrevocable until all of the Obligations have been fully paid and
performed and the Lender's obligations to extend credit under the Note have
terminated.
2.7 Right to Inspect. The Lender (through any of their officers, employees or
agents) shall have the right, from time to time hereafter, during regular
business hours and upon reasonable prior notice, to inspect any of Borrower's
books and records and to check, test and appraise the Collateral in order to
verify Borrower's financial condition or the amount, quality, value, condition
of or any other matter relating to the Collateral. 3. TITLE; PERMITTED LIENS.
Borrower represents and warrants and agrees that, other than Permitted
Liens, Borrower is or will be lawfully possessed and the sole owner of its
property, free and clear of any mortgage, pledge or other secured debt and, all
such property is free and clear of any lien or encumbrance of any kind or
character, legal or equitable, other than Permitted Liens.
4. LOCATION OF COLLATERAL.
Borrower represents and warrants to the Lender that: (a) Exhibit A is a
correct and complete list of the location of Borrower's chief executive office,
the location of its books and records, the locations of the Collateral, and the
locations of all of its other places of business; and (b) Exhibit A correctly
identifies any of such facilities and locations that are not owned by Borrower
and sets forth the names of the owners and lessors or sublessors of such
facilities and locations. Borrower covenants and agrees that it will not (i)
maintain any Collateral at any location other than those locations listed for
Borrower on Exhibit A, (ii) otherwise change or add to any of such locations, or
(iii) change the location of its principal office from the location identified
in Exhibit A, unless it gives the Lender at least 30 days' prior written notice
thereof and executes any and all financing statements and other documents that
the Lender reasonably request in connection therewith. Without limiting the
foregoing, Borrower represents that all of its Inventory (other than Inventory
in transit) is, and covenants that all of its Inventory will be, located either
(A) on premises owned by Borrower, (B) on premises leased by Borrower, or (C) in
a warehouse or with a bailee, provided that the Lender have received an executed
bailee letter in form and substance satisfactory to the Lender. 5. NAME;
JURISDICTION OF ORGANIZATION.
Borrower represents and warrants that (a) it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, (b) is qualified to do business and is in good standing in all
jurisdictions in which the failure to be so qualified will have a material
adverse effect on the conduct of its business, (c) has all requisite corporate
power and authority to own and operate its properties and carry on its business
as now conducted or presently proposed to be conducted, and (d) its exact legal
name is as set forth on the first page hereof. Borrower shall not change its
name or reorganize itself under the laws of any jurisdiction other than the
jurisdiction in which it is organized as of the date hereof or change its type
of entity without providing prior written notice to the Lender.
6. ACCOUNTS.
6.1 Validity. Borrower hereby represents and warrants, with respect to its
Accounts, that: (a) each existing Account represents, and each future Account
will represent, a bona fide sale or lease and delivery of goods by Borrower, or
rendition of services by Borrower, in the ordinary course of Borrower's
business; (b) each existing Account is, and each future Account will be, for a
liquidated amount payable by the Account Debtor thereon on the terms set forth
in the invoice therefor or in the schedule thereof delivered to the Lender,
without any offset, deduction, defense, or counterclaim except those known to
Borrower and disclosed to the Lender pursuant to this Agreement; (c) each copy
of an invoice delivered to the Lender by Borrower will be a genuine copy of the
original invoice sent to the Account Debtor named therein; and (d) all goods
described in any invoice representing a sale of goods will have been delivered
to the Account Debtor and all services of Borrower described in each invoice
will have been performed.
6.2 Certain Actions. Borrower shall not re-date any invoice or sale or make
sales on extended dating beyond that customary in Borrower's business or extend
or modify any Account. If Borrower becomes aware of any matter adversely
affecting the collectibility of any Account involving an amount greater than
$50,000, including information regarding the Account Debtor's creditworthiness,
Borrower will promptly so advise the Lender. 6.3 Disputes: Allowances. Borrower
shall notify the Lender promptly of all disputes and claims in excess of $25,000
with any Account Debtor, and agrees to settle, contest, or adjust such dispute
or claim at no expense to the Lender. No discount, credit or allowance shall be
granted to any Account Debtor, except for discounts, credits and allowances made
or given in the ordinary course of Borrower's business when no Event of Default
exists hereunder.
Upon the occurrence of any Event of Default, the Lender, in addition to
availing themselves of any remedies conferred upon them by law or equity or by
the terms of the Note or this Agreement, may pursue any available remedy under
the UCC.
7. RIGHT TO CURE.
In the Event of Default, so long as such Event of Default is
continuing, subject to the rights of the holders of the Prior Liens, the Lender,
in their discretion, pay any amount or do any act required of Borrower hereunder
in order to preserve, protect, maintain or enforce the Obligations, the
Collateral or the Lender's liens therein, and which Borrower fails to pay or do,
including payment of any judgment against Borrower, any insurance premium, any
warehouse charge, any finishing or processing charge, any landlord's or bailee's
claim, and any other lien upon or with respect to the Collateral. All payments
that the Lender make under this Section 7 and all out-of-pocket costs and
expenses that the Lender pay or incur in connection with any action taken by it
hereunder shall be charged to Borrower. Any payment made or other action taken
by the Lender under this Section 7 shall be without prejudice to any right to
assert the occurrence of an Event of Default hereunder and to proceed thereafter
as herein provided.
8. LENDER'S RIGHTS, DUTIES AND LIABILITIES.
8.1 No Impairment of Obligations. Borrower assumes all responsibility and
liability arising from or relating to the use, license, sale or other
disposition of the Collateral. The Obligations shall not be affected by any
failure of the Lender to take any steps to perfect the Lender's liens or to
collect or realize upon the Collateral, nor shall loss of or damage to the
Collateral release Borrower from any of the Obligations. 8.2 Borrower Remains
Liable. Anything herein to the contrary notwithstanding, Borrower 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. The Lender shall not have any obligation or liability under any
contract or license by reason of or arising out of this Agreement or the
granting herein of a lien thereon or the receipt by the Lender of any payment
relating to any contract or license pursuant hereto. The Lender shall not be
required or obligated in any manner to perform or fulfill any of the obligations
of Borrower 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 claims, 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. 9.
INDEMNIFICATION.
In any suit, proceeding or action brought by the Lender relating to the
Note, this Agreement, any related documents, or Collateral for any sum owing
with respect thereto or to enforce any rights or claims with respect thereto,
Borrower will save, indemnify and keep the Lender harmless from and against all
expense (including reasonable attorneys' fees and expenses), loss or damage
suffered by reason of any defense, setoff, counterclaim, recoupment or reduction
of liability whatsoever of the Account Debtor or other individual or entity
obligated on the Collateral, arising out of a breach by Borrower 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 Borrower, except in the case of the Lender, to the extent such expense,
loss, or damage is attributable solely to the gross negligence or willful
misconduct of the Lender as finally determined by a court of competent
jurisdiction. All such obligations of Borrower shall be and remain enforceable
against and only against Borrower and shall not be enforceable against the
Lender.
10. MISCELLANEOUS.
10.1 Additional Acts. Borrower shall, upon request, execute and deliver such
further instruments and documents and do such further acts and things as may be
reasonably required to provide to the Lender the evidence of and security for
the Obligations as well as the perfection of the Lender's security interest in
the Collateral. 10.2 Amendment: Waiver; Approval. This Agreement shall not be
amended, modified or supplemented without the written agreement of Borrower and
the Lender at the time of such amendment, modification or supplement. No waiver
of any provision of this Agreement shall be effective unless set forth in
writing signed by the party making such waiver, and any such waiver shall be
effective only to the extent therein set forth. Failure by the Lender to insist
upon full and prompt performance of any provisions of this Agreement, or to take
action upon the occurrence of any Event of Default, shall not constitute a
waiver of any rights of the Lender, and the Lender may at any time thereafter
exercise all available rights and remedies with respect to such Event of
Default. Receipt by the Lender of any instrument or document shall not
constitute or be deemed to be an approval thereof. 10.3 Entire Agreement. This
Agreement, the Note and related documents constitute the entire agreement and
understanding among the Borrower and the Lender, and supersede any prior
agreement and understanding relating to the subject matter of this Agreement;
provided, however, that notwithstanding the foregoing, this Agreement shall
supersede any previous security agreement, or security interest or pledge, given
by Borrower to secure any or all of the Obligations.
10.4 Notice. Any notice which any party hereto gives to any other party
hereunder shall be in accordance with the provisions of the Note relating
thereto. 10.5 Benefit; Assignment. The rights, powers and remedies of the Lender
and Borrower under this Agreement shall inure to their respective benefits and
to the benefit of their respective successors and permitted assigns. The
obligations of Borrower under this Agreement may not be assigned and any
purported assignment by Borrower shall be null and void without prior written
approval of Lender. The rights of Lender under this Agreement may be assigned
within the sole and absolute discretion of Lender without consent of or prior
notice to Borrower. 10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, as applied to
agreements among residents made and to be performed entirely within the State of
California. By execution and delivery of this Agreement, the parties agree and
accept that any legal action or proceeding brought with respect to this
Agreement shall be brought in the State or United States District Court of
appropriate jurisdiction in and for the County of Santa Xxxxx, State of
California, and the parties expressly waive any objection to personal
jurisdiction, venue or forum non conveniens 10.7 Headings. The titles and
headings of the articles, sections and paragraphs of this Agreement have been
inserted as a matter of convenience of reference only and shall not control or
affect the meaning or construction of any of the terms or provisions of this
Agreement.
10.8 No Partnership or Joint Venture. The Lender, by executing and performing
this Agreement (or any of the loan documents), shall not become a partner or
joint venturer with Borrower or any of its respective associates or affiliates
and all inspections herein provided for are for the sole benefit of the Lender.
10.9 Time is of the Essence. Time is of the essence for the payment of all
amounts due the Lender under the loan documents and performance and observance
by Borrower of each covenant, agreement, provision and term of the loan
documents.
10.10 Invalid Provisions. In the event any one or more of the provisions
contained in this Agreement or in any of the other loan documents shall for any
reason be held to be invalid, illegal or unenforceable in any respect by a court
of competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any other Loan Document, and
this Agreement and the other Loan Document shall be construed as if such
invalid, illegal or unenforceable provision had never been in the Loan
documents. 10.11 Acts Prohibited Under Law. Notwithstanding anything herein
contained to the contrary, the Lender will not be required to make any
disbursement or perform any other act under this Agreement if, as a result
thereof, the Lender will violate any law, statute, ordinance, rule, regulation
or judicial decision applicable thereto. The Lender shall use their reasonable
efforts to promptly notify Borrower of the Lender's inability to make such
disbursement or perform such act due to such violation.
10.12 Counterparts. This Agreement and the other Loan documents may be executed
in counterparts, and all said counterparts when taken together shall constitute
one and the same Agreement. 10.13 No Third Party Beneficiary. This Agreement and
the other Loan documents are only for the benefit of the parties hereto and
thereto and their permitted successors and assigns. No other person or entity
shall be entitled to rely on any matter set forth herein or therein or shall
gain any rights herein whether by subrogation or otherwise without the prior
written consent of such parties.
***
SIGNATURE PAGE OF SECURITY AGREEMENT
IN WITNESS WHEREOF, this Security Agreement has been entered into as of
the date first written above.
BORROWER:
NETWORK STORAGE SOLUTIONS, INC.
a Delaware corporation
By:
------------------------------------------
Xxx Xxxxxxx, President
LENDER:
IQ BIOMETRIX, INC.
a Delaware corporation
By:
------------------------------------------
Xxxxxxx Xxxxxxxxx, President
Exhibit A
List of Collateral Locations
Corporate Headquarters and location of books and records:
00000 Xxxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Landlord:
Regis Property Management
0 Xxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Other locations:
00000 Xxxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Landlord:
Pellissippi Office Park
0000 Xxxxxxx Xxxx
Xxxxx 0
Xxxxxxxxx, XX 00000
