EXHIBIT 10.13
AMENDED AND RESTATED
COLLATERAL AGENT AGREEMENT
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This Amended and Restated Collateral Agent Agreement (the "Collateral
Agreement"), (replacing in its entirety the Collateral Agent Agreement dated
July 24, 2001), is made and entered into and effective as of the 21st day of
September, 2001, (the "Effective Date") by and among Xxxxxxx X. Xxxxxx, an
individual ("Xxxxxx"), EMB Corporation, a Hawaii corporation ("EMB"), and that
individual set forth below as the Collateral Agent. Xxxxxx and EMB are sometimes
collectively referred to herein as "Parties" and individually as "Party".
Capitalized terms not otherwise defined in this Agreement shall have the
meanings ascribed to them in the Note (as hereinafter defined).
RECITALS
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A. As provided for in the Purchase Agreement by and between EMB and
Xxxxxx dated July 23, 2001 and the Amended and Restated Purchase
Agreement dated September 21, 2001 (the "Purchase Agreement") whereby
EMB acquired from Xxxxxx all of the common stock of Saddleback
Investment Services, Inc., ("Saddleback"), EMB has executed a Secured
Note dated as of the Effective Date in favor of Xxxxxx (the "Note"),
pursuant to which EMB has agreed to pay Xxxxxx the principal amount of
$100,000.00.
B. The Note provides, among other things, that, the Obligations of EMB
thereunder shall be secured by an aggregate of 10,000 shares of the
common stock of Saddleback and 100,000 shares of Series A Convertible
Preferred Stock of Saddleback all acquired by EMB pursuant to the
Purchase Agreement (collectively, the "Collateral Shares"), to be
released to Xxxxxx under the terms of the Note and the Security
Agreement of even date herewith that is being executed in connection
with the execution of this Collateral Agreement (the "Security
Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Xxxxxx and EMB, intending to be
legally bound hereby, agree as follows:
1. Appointment of Collateral Agent; Commencement and Termination.
(a) EMB and Xxxxxx hereby nominate, constitute and appoint Xxxxxxx X.
Xxxx, Esq. of Xxxxx Xxxx LLP as Collateral Agent (the "Collateral
Agent") upon the terms and conditions set forth in this
Agreement, the Note and the Security Agreement. It is intended by
the Parties and the Collateral Agent that, to the extent required
in order to perfect Xxxxxx'x first lien position in the
Collateral Shares, the Collateral Agent shall be deemed an agent
of Xxxxxx.
(b) EMB shall deliver to the Collateral Agent contemporaneously with
the execution of this Agreement a certificate or certificates
representing the Collateral Shares as provided for under the
terms of the Security Agreement. The Collateral Shares shall not
be registered under the Securities Act of 1933 or any state blue
sky law and shall bear a restrictive legend so indicating.
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(c) The Collateral Agent agrees to act in accordance with the
provisions of the Security Agreement, the Note, and this
Collateral Agreement. The Collateral Agent shall be reimbursed by
EMB promptly upon submission of an invoice or invoices on a
monthly basis for all of the Collateral Agent's fees at his
standard hourly rates and out-of-pocket expenses, if any,
incurred in connection with this Collateral Agreement.
2. General Instructions. Unless and until any of the events or
contingencies specified in this Collateral Agreement shall occur, the Collateral
Agent shall hold and retain in his possession at all times all of the Collateral
Shares.
3. Disposition of the Collateral Shares. The disposition of the Collateral
Shares shall be governed by the Security Agreement.
4. Receipts. Any of the Parties or the Collateral Agent may, at its option,
demand a receipt as a condition of the delivery of any payments, stock
certificates, securities or documents under this Collateral Agreement
5. Liability of the Collateral Agent. The Collateral Agent (which term for
purposes of this Section 5 shall refer to any and all affiliates of the
Collateral Agent) shall not be liable for any error of judgment or for any act
done or omitted by him in good faith, or for anything he may in good faith do or
refrain from doing in connection with this Agreement; nor for any negligence
other than his gross negligence; nor shall the Collateral Agent be answerable
for the default or misconduct of his agents, attorneys or employees, if they be
selected with reasonable care; nor will any liability be incurred by the
Collateral Agent, if, in the event of any dispute or question as to his duties
or obligations under this Agreement, he acts in accordance with advice of his
legal counsel. The Collateral Agent is authorized to act upon any document
believed by him to be genuine and to be signed by one or more of the Parties,
and will incur no liability in so acting.
6. Resignation or Removal of Collateral Agent. The Collateral Agent may
resign at any time, upon thirty (30) days' prior written notice to Xxxxxx and
EMB, and may be removed by the mutual consent of Xxxxxx and EMB, upon at least
thirty (30) days' prior notice to the Collateral Agent. Prior to the effective
date of the resignation or removal of the Collateral Agent, or any successor
Collateral Agent, Xxxxxx and EMB shall appoint a successor collateral agent to
hold the Collateral Shares then held by the Collateral Agent, and any such
successor collateral agent shall execute and deliver to the predecessor
collateral agent and to Xxxxxx and EMB an instrument accepting such appointment,
and thereupon such successor collateral agent shall, without further act, become
vested with all the rights and powers of the predecessor collateral agent as if
originally named in this Collateral Agreement, and shall thereafter become
subject to the duties of the predecessor collateral agent. If Xxxxxx and EMB are
unable to agree on a successor collateral agent by the effective date of the
resignation or removal of the Collateral Agent, or any successor collateral
agent, the Collateral Shares then held by the Collateral Agent or such successor
collateral agent shall be deposited with a party that shall be selected by EMB
provided that EMB shall provide a written opinion of its legal counsel (who
shall be reasonably acceptable to Xxxxxx) that the holding of the Collateral
Shares by such party shall permit Xxxxxx to obtain and maintain a valid
perfected first lien position in the Collateral Shares.
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7. Governing Document. In the event that any terms, provisions, rights,
duties, or obligations set forth in this Collateral Agreement should be in
conflict with any terms, provisions, rights, duties, or obligations set forth in
the Note, the Security Agreement or any agreements collateral thereto, the
terms, provisions, rights, duties, or obligations set forth in the Security
Agreement shall control and the conduct of the Collateral Agent shall be
governed accordingly.
8. Notices. Any notice required to be given under this Collateral Agreement
or which may be given under this Collateral Agreement to any party or the
Collateral Agent shall be in writing and shall be deemed given: (a) upon receipt
if delivered or sent by identified telecopier; or (b) one (1) business day after
being sent via reputable overnight courier, prepaid; (c) or three (3) business
days after being sent by registered or certified mail, postage prepaid, return
receipt requested; or (d) personally delivered to the Parties or the Collateral
Agent at their respective addresses or telecopy numbers set forth below:
If to Xxxxxx: Xxxxxxx X. Xxxxxx
000 Xxxxx Xxxxxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
If to EMB: EMB Corporation
Attention: Chief Executive Officer
0000 Xxxxxx Xxxxxx
Xxxxx X
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
With a copy to: Xxxxx Xxxx LLP
(which shall not Attention: Xxxxxxx X. Xxxx, Esq.
constitute notice) 0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
If to Collateral Agent: Xxxxx Xxxx LLP
Attention: Xxxxxxx X. Xxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
(Fax Number: 000-000-0000)
or such other address as shall be furnished in writing by the appropriate
person, and any such notice or communication shall be deemed to have been given
as of the date so mailed.
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9. Miscellaneous.
(a) Entire Agreement and Modification. Except as expressly reserved
or otherwise provided herein, this Collateral Agreement
constitutes the entire agreement between the Parties with regard
to its subject matter. The Collateral Agent shall not be bound by
any modification of this Collateral Agreement unless there is
delivered to the Collateral Agent a written modification signed
by the Parties. No such modification shall, without the prior
written consent of the Collateral Agent, modify the provisions of
this Collateral Agreement relating to the duties, obligations or
rights of the Collateral Agent.
(b) Words and Phrases. Words and phrases such as "to this Agreement,"
"herein," "hereinafter," "hereto," "hereof," "hereby,"
"hereinbelow," and "hereunder" when used with reference to this
Collateral Agreement, refer to this Collateral Agreement as a
whole, unless the context otherwise requires.
(c) Severability. If any provision of this Collateral Agreement is
determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the provisions that have not been held
invalid or unenforceable shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
(d) No Waiver. No failure or delay on the part of either the Parties
of the Collateral Agent, or any of them, in exercising any right,
power or privilege under this Agreement shall constitute a waiver
thereof or of any other right, power or privilege under this
Collateral Agreement.
(e) Gender and Number. Wherever from the context of this Collateral
Agreement it appears appropriate, each term stated in either the
singular or the plural, and pronouns stated in either the
masculine, feminine or neuter gender, shall include the
masculine, feminine and neuter.
(f) Consent to Jurisdiction; Choice of Law. Any and all claims by or
against any of the Parties and/or the Collateral Agent shall be
decided under the laws of the State of California, with venue in
Orange County, California and each of the Parties and the
Collateral Agent hereby consent to the exclusive jurisdiction of,
and agrees not to commence any action in a court other than, the
state and/or federal courts of the State of California for the
purpose of making claims under this Collateral Agreement. Each
Party and the Collateral Agent irrevocably and unconditionally
waives any objection to the laying of venue in Orange County,
California, in connection with any action that may be brought
hereunder in the state and/or federal courts of the State of
California, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that
any such action brought in any such court has been brought in an
inconvenient form.
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(g) Benefit. This Collateral Agreement shall be binding upon and
inure to the benefit of the Parties, the Collateral Agent, their
respective, successors and assigns.
(h) Counterparts. This Collateral Agreement may be executed by the
Parties and the Collateral Agent in separate counterparts, each
of which when so executed and delivered shall be an original, but
all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but altogether signed by the
Collateral Agent and all of the Parties hereto.
IN WITNESS WHEREOF, the Parties and Collateral Agent have hereunto set their
hands and seals as of the date first above written.
EMB CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Chairman and CEO
"EMB"
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
"Xxxxxx"
/s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Esq.
"Collateral Agent"
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