SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of December 27,
2006, by and among Cross Atlantic Commodities, Inc., a Nevada
corporation ("Company"), and the secured parties signatory hereto and
their respective endorsees, transferees and assigns (collectively, the
"Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement, dated the
date hereof, between Company and the Secured Party (the "Purchase
Agreement"), Company has agreed to issue to the Secured Party and the
Secured Party has agreed to purchase from Company certain of Company's
8% Callable Secured Convertible Notes, due three years from the date of
issue (the "Notes"), which are convertible into shares of Company's
Common Stock, par value $.001 per share (the "Common Stock"). In
connection therewith, Company shall issue the Secured Party certain
Common Stock purchase warrants (the "Warrants"); and
WHEREAS, in order to induce the Secured Party to purchase the
Notes, 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 Notes 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.
(a) "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 Collateral
and of insurance covering the same and of any tort claims in connection
therewith:
(i) All Goods of the Company, including, without
limitations, all machinery, 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
A
(ii) ll Inventory of the Company; and
(iii) 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
(iv) 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
(v) 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.
(b) "Company" shall mean, collectively, Company and all
of the subsidiaries of Company, a list of which is contained in
Schedule A, attached hereto.
(c) "Obligations" means all of the Company's obligations
under this Agreement and the Notes, 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.
(d) "UCC" means the Uniform Commercial Code, as currently
in effect in the State of New York.
2. Grant of Security Interest. As an inducement for the
Secured Party to purchase the Notes and to secure the complete and
timely payment, performance and discharge in full, as the case may be,
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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, except as
set forth on Schedule C. 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, except as set forth on Schedule C. 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), except as set forth on Schedule C.
(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
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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) Except as set forth on Schedule C, 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
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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.
(j) The Company will not transfer, pledge, hypothecate,
encumber, license (except for non-exclusive licenses granted and sales
made 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 including, without limitation, the execution and delivery of
a separate security agreement with respect to the Company's
intellectual property ("Intellectual Property Security Agreement") in
which the Secured Party has been granted a security interest hereunder,
substantially in a form acceptable to the Secured Party, which
Intellectual Property Security Agreement, other than as stated therein,
shall be subject to all of the terms and conditions hereof.
(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.
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(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.
(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 Notes) under the Notes;
(b) Any representation or warranty of the Company in this
Agreement or in the Intellectual Property Security 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 or in the Intellectual Property Security
Agreement for ten (10) days after receipt by the Company of notice of
such failure from the Secured Party; and
(d) Any breach of, or default under, the Warrants.
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 Notes 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 Notes, 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
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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 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.
(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 commercially 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 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 15% 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.
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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 Notes.
Until so paid, any fees payable hereunder shall be added to the
principal amount of the Notes and shall bear interest at the Default
Rate.
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 Notes and the
Warrants 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 Notes, 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 Notes, 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
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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
Notes have been made in full and all other Obligations 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.
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 protect, preserve and realize upon the Collateral and the
Security Interest granted therein in order to effect the intent of this
Agreement, the Notes 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.
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(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:
If to the Company: Cross Atlantic Commodities, Inc.
0000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: [ ]
With a copy to: Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the
Secured Party: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
With a copy to: Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: 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 Notes 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 Notes 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 thereto. 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.
(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.
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(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) This Agreement shall be construed in accordance
with the laws of the State of New York, except to the extent the
validity, perfection or enforcement of a security interest hereunder in
respect of any particular Collateral which are governed by a
jurisdiction other than the State of New York in which case such law
shall govern. Each of the parties hereto irrevocably submit to the
exclusive jurisdiction of any New York State or United States Federal
court sitting in Manhattan county over any action or proceeding arising
out of or relating to this Agreement, and the parties hereto hereby
irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in such New York State or
Federal court. The parties hereto agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. The parties hereto further waive any objection to
venue in the State of New York and any objection to an action or
proceeding in the State of New York on the basis of forum non
conveniens.
(i) EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AGREEMENT. THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATER OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF
DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH
PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS
ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT
EACH PARTY WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. EACH PARTY FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY HAS
KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL FOLLOWING
SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT,
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. IN THE EVENT OF A LITIGATION, THIS AGREEMENT MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
13
(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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed on the day and year first above written.
CROSS ATLANTIC COMMODITIES, INC.
By: /s/ Xxxxxxx Enemaerke
------------------------
Xxxxxxx Enemaerke
Chief Executive Officer and President
AJW PARTNERS, LLC
By: SMS Group, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC
By: First Street Manager II, LLC
By: /s/ Xxxxx X. Xxxxxxxx
------------------------
Xxxxx X. Xxxxxxxx
Manager
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