SECURITY AGREEMENT
This
Security Agreement (the “Agreement”) is made
as of March 12, 2009 by and among NetFabric Holdings, Inc., a Delaware
corporation (“NetFabric”) and
NetFabric Technologies, Inc. d/b/a UCA Services, Inc., a New Jersey corporation
and a wholly-owned subsidiary of NetFabric (“UCA”), in favor of
Fortify Infrastructure Services, Inc., a Delaware corporation (the “Secured
Party”). NetFabric and UCA are sometimes referred to herein as
“Debtor” and
collectively as “Debtors.”
RECITALS
Secured
Party has (i) purchased from UCA a Secured Promissory Note of even date herewith
(the “Note”)
pursuant to which the Debtor is borrowing $5,000,000.00 from Secured Party in
accordance with the terms and conditions set forth in the Note and the
Convertible Note Purchase Agreement of even date herewith (the “Note Purchase
Agreement”), and (ii) agreed to extend a credit facility to UCA in an
amount not to exceed $1,000,000.00 from which UCA may draw down for working
capital purposes pursuant to the terms and conditions set forth in the Credit
Agreement of even date herewith (the “Credit
Agreement”). NetFabric has guaranteed the obligations of UCA
under each of the Note, the Note Purchase Agreement and the Credit Agreement on
the terms set forth therein and herein and as set forth in that certain Stock
Pledge Agreement of even date herewith (the “Pledge
Agreement”).
In
addition to the foregoing, NetFabric and the Secured Party have entered into an
Option Agreement of even date herewith (the “Option Agreement”)
pursuant to which NetFabric has granted to Secured Party the option to purchase
all of the equity securities of UCA currently owned or hereafter acquired by
NetFabric on the terms and conditions set forth therein. The Note,
the Note Purchase Agreement, the Credit Agreement, the Pledge Agreement, the
Option Agreement and this Agreement are referred to herein as the “Transaction
Agreements.”
The
parties intend that UCA’s obligations to repay the Note and the amounts drawn
under the Credit Agreement, as well as UCA’s representation, warranties and
obligations under the Transaction Agreements, be secured by all of the assets of the
UCA. The parties further agree that Netfabic’s obligations under the
Transaction Agreements, as well as NetFabric’s guarantee of UCA’s obligations
thereunder, be secured by all of the assets of NetFabric. For the
avoidance of doubt, each of NetFabric and UCA shall be jointly and severally
liable of their respective obligations under this Agreement and the Transaction
Agreements.
AGREEMENT
In
consideration of the loan to UCA by Secured Party pursuant to the Note and the
Credit Agreement and for other good and valuable consideration, each Debtor
hereby agrees with the Secured Party as follows:
1. Grant of
Security Interest. To secure each
Debtor’s full and timely performance of all of obligations and liabilities to
the Secured Party pursuant to the Transaction Agreements (including, without
limitation, each Debtor’s obligation to timely pay the principal amount of, and
interest on, the Note and amounts drawn pursuant to the Credit Agreement) (the
“Obligations”),
each Debtor hereby grant to the Secured Party a continuing security interest
(the “Security
Interest”) in and to all of the property described on Exhibit A (in the
case of UCA) and Exhibit B (in the
case of NetFabric) to this Agreement (the “Collateral”). The
Security Interest shall be a first and prior interest in all of the
Collateral.
2. Covenants. Each Debtor
covenants and agrees with the Secured Party that, from and after the date of
this Agreement until the Obligations are paid or satisfied in full:
(a) Other
Liens. Except for the
Security Interest, such Debtor is the owner of the Collateral and will be the
owner of the Collateral hereafter acquired free from any adverse lien, security
interest or encumbrance, and such Debtor will defend the Collateral against the
claims and demands of all persons at any time claiming the same or any interest
therein. No financing statements covering any Collateral or any
proceeds thereof are on file in any public office.
(b) Further
Documentation.
(i) At any time and from
time to time, upon the written request of the Secured Party, and at the sole
expense of the Debtors, such Debtor will promptly and duly execute and deliver
such further instruments and documents and take such further action as the
Secured Party may reasonably request for the purpose of obtaining or preserving
the full benefits of this Agreement and of the rights and powers herein granted,
including, without limitation, filing any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with respect to
the liens created hereby. Each Debtor also hereby authorizes the
Secured Party to file any such financing or continuation statement without the
signature of such Debtor to the extent permitted by applicable law. A
reproduction of this Agreement shall be sufficient as a financing statement (or
as an exhibit to a financing statement on form UCC-1) for filing in any
jurisdiction.
(ii) If any Collateral is at
any time in the possession or control of any warehouseman, bailee or such other
agents or processors, then each Debtor shall notify the Secured Party thereof
and, upon request by the Secured Party, shall obtain a bailee letter
acknowledged by the bailee that notifies such person of the Secured Party’s
Security Interest in and to such Collateral and instructs such person to hold
all such Collateral for the Secured Party’s account subject to the Secured
Party’s instructions, unless the Secured Party agrees in writing to waive such
bailee letter requirement. If at any time any Collateral is located
in any operating facility of the Debtors that is leased by such Debtor, then
such Debtor shall notify the Secured Party thereof and, upon request by the
Secured Party, shall obtain written landlord lien waivers or subordinations, in
form and substance reasonably satisfactory to the Secured Party, that waive or
subordinate all present and future liens which the owner or lessor of such
premises may be entitled to assert against the Collateral.
(iii) From time to time,
each Debtor shall, upon the Secured Party’s request, execute and deliver
confirmatory written instruments pledging the Collateral to the Secured Party,
but such Debtor’s failure to do so shall not affect or limit any Security
Interest or any other rights of the Secured Party in and to the Collateral with
respect to such Debtor. So long as there are amounts owing in respect
of the Note and the Credit Agreement and until all Obligations have been
satisfied in full, the Secured Party’s Security Interest in and to the
Collateral shall continue in full force and effect in and to all
Collateral.
(c) Indemnification. Each Debtor
agrees to defend, indemnify and hold harmless the Secured Party against any and
all liabilities, costs and expenses (including, without limitation, legal fees
and expenses): (i) with respect to, or resulting from, any delay in paying,
any and all excise, sales or other taxes which may be payable or determined to
be payable with respect to any of the Collateral, (ii) with respect to, or
resulting from, any delay in complying with any law, rule, regulation or order
of any governmental authority applicable to any of the Collateral or
(iii) in connection with any of the transactions contemplated by this
Agreement.
(d) Maintenance
of Records. Each Debtor will
keep and maintain at its own expense complete and satisfactory records of the
Collateral.
(e) Inspection
Rights. The Secured Party
shall have full access during normal business hours, and upon reasonable prior
written notice, to all the books, correspondence and other records of each
Debtor relating to the Collateral. The Secured Party or its
representatives may examine such records and make photocopies or otherwise take
extracts from such records. Each Debtor agrees to render to the
Secured Party, at such Debtor’s expense, such clerical and other assistance as
may be reasonably requested with regard to the exercise of its rights pursuant
to this paragraph.
(f) Compliance
with Laws, etc. Each Debtor will comply in all material
respects with all laws, rules, regulations and orders of any governmental
authority applicable to any part of the Collateral or to the operation of the
Debtor’s business; provided, however, that such
Debtor may contest any such law, rule, regulation or order in any reasonable
manner which does not adversely affect the Secured Party’s rights or the
priority of its liens on the Collateral.
(g) Payment
of Obligations. Each Debtor will
pay promptly when due all taxes, assessments and governmental charges or levies
imposed upon the Collateral or with respect to any its income or profits derived
from the Collateral, as well as all claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or with respect to
the Collateral, except that no such charge need be paid if (i) the validity
of such charge is being contested in good faith by appropriate proceedings,
(ii) such proceedings do not involve any danger of the sale, forfeiture or
loss of any of the Collateral or any interest in the Collateral and
(iii) such charge is adequately reserved against on such Debtor’s books in
accordance with generally accepted accounting principles.
(h) Limitation
on Liens on Collateral. Each Debtor will
not create, incur or permit to exist, will defend the Collateral against, and
will take such other action as is necessary to remove, any lien or claim on or
to the Collateral, other than the Security Interest, and will defend the right,
title and interest of the Secured Party in and to any of the Collateral against
the claims and demands of all other persons.
(i) Limitations
on Dispositions of Collateral. Each Debtor will
not sell, transfer, lease or otherwise dispose of any of the Collateral, or
attempt, offer or contract to do so.
(j)
Further
Identification of Collateral. Each Debtor will
furnish to the Secured Party from time to time statements and schedules further
identifying and describing the Collateral and such other reports in connection
with the Collateral as the Secured Party may reasonably request in writing, all
in reasonable detail and in form and substance reasonably acceptable to the
Secured Party, including, without limitation, copies of any reports,
certificates, appraisals or other documents prepared for, or on behalf of, any
lender to such Debtor, and with the delivery of each of the foregoing, a
certificate of such Debtor executed by an officer thereof certifying as to the
accuracy and completeness of the foregoing. If any such records or
reports regarding the Collateral are prepared by an accounting firm, each Debtor
hereby authorizes such service to deliver such records, reports, and related
documents to the Secured Party in accordance with the foregoing
provisions.
3. Secured
Party’s Appointment as Attorney-in-Fact.
(a) Powers. For purposes of
this Agreement, an “Event of Default”
shall have occurred if/upon:
(i) UCA
(or NetFabric) shall fail to pay as and when due any principal or interest under
the Note or the Credit Agreement.
(ii) UCA
or NetFabric shall breach or default in connection with any of the
representations, warranties, covenants or obligations contained the Transaction
Agreements.
(iii) UCA
or NetFabric makes an assignment for the benefit of creditors generally, offers
a composition or extension to creditors, or makes or sends notice of an intended
bulk sale of any business or assets now or hereafter owned or
conducted.
(iv) The
commencement of any action for the dissolution or liquidation of either UCA or
NetFabric, or the commencement of any case or proceeding for reorganization or
liquidation of the Company’s debts under Title 11 of the United States Code as
now or hereafter in effect, or any successor statute, or any other state or
federal law, now or hereafter enacted for the relief of debtors, whether
instituted by or against either Debtor; provided, however, that the
each Debtor shall have sixty (60) days to obtain the dismissal or discharge of
any involuntary proceeding filed against it.
(v)
The appointment of a receiver, liquidator, custodian, trustee
or similar official or fiduciary for the Debtors or for a material portion of
any property of the Debtors.
(vi) The
loss, theft, damage, destruction or write-down of any material portion of the
Collateral
(b) Powers. Each Debtor
hereby appoints the Secured Party and any officer or agent of the Secured Party,
with full power of substitution, as its attorney-in-fact with full irrevocable
power and authority in the place of such Debtor and in the name of such Debtor
or its own name, from time to time in the Secured Party’s discretion so long as
an Event of Default has occurred and is continuing, for the purpose of carrying
out the terms of this Agreement, to take any appropriate action and to execute
any instrument which may be necessary or desirable to accomplish the purposes of
this Agreement. Without limiting the foregoing, so long as an Event
of Default has occurred and is continuing, the Secured Party shall have the
right, without notice to, or the consent of, each Debtor, to do any of the
following on such Debtor’s behalf:
(i)
to pay or discharge any taxes or liens levied or placed on or threatened against
the Collateral;
(ii)
to direct any party liable for any payment under any of the Collateral to make
payment of any and all amounts due or to become due thereunder directly to the
Secured Party or as the Secured Party directs;
(iii) to
ask for or demand, collect, and receive payment of and receipt for, any payments
due or to become due at any time in respect of or arising out of any
Collateral;
(iv) to
commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to enforce any right in respect of any
Collateral;
(v) to
defend any suit, action or proceeding brought against such Debtor with respect
to any Collateral;
(vi)
to settle, compromise or adjust any suit, action or proceeding described in
subsection (v) above and to give such discharges or releases in connection
therewith as the Secured Party may deem appropriate;
(vii)
to assign any patent right included in the Collateral of each Debtor (along with
the goodwill of the business to which any such patent right pertains),
throughout the world for such term or terms, on such conditions, and in such
manner, as the Secured Party shall in its sole discretion determine;
and
(viii)
generally, to sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral and to take, at the Secured Party’s
option and the Debtors’ expense, any actions which the Secured Party deems
necessary to protect, preserve or realize upon the Collateral and the Secured
Party’s liens on the Collateral and to carry out the intent of this Agreement,
in each case to the same extent as if the Secured Party were the absolute owner
of the Collateral for all purposes.
Each
Debtor hereby ratifies whatever actions the Secured Party shall lawfully do or
cause to be done in accordance with this Section 3. This power of
attorney shall be a power coupled with an interest and shall be
irrevocable.
(c) No Duty
on Secured Party’s Part. The powers
conferred on the Secured Party by this Section 3 are solely to protect the
Secured Party’s interests in the Collateral and shall not impose any duty upon
it to exercise any such powers. The Secured Party shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers, and neither the Secured Party nor any of its officers,
directors, employees or agents shall, in the absence of willful misconduct or
gross negligence, be responsible to either Debtor for any act or failure to act
pursuant to this Section 3.
4. Performance
by Secured Party of Debtors’ Obligations. If either Debtor
fails to perform or comply with any of its agreements or covenants contained in
this Agreement and the Secured Party performs or complies, or otherwise causes
performance or compliance, with such agreement or covenant in accordance with
the terms of this Agreement, then the reasonable expenses of the Secured Party
incurred in connection with such performance or compliance shall be payable by
the Debtors to the Secured Party on demand and shall constitute Obligations
secured by this Agreement.
5. Remedies.
(a) In
addition to all other rights and remedies granted to it under this Agreement and
the Transaction Agreements and under any other instrument or agreement securing,
evidencing or relating to any of the Obligations, if any Event of Default shall
have occurred and be continuing, the Secured Party may exercise all rights and
remedies of a secured party under the New Jersey Uniform Commercial Code (the
“UCC”). Upon
the occurrence of an Event of Default, the Secured Party shall have the right
upon a public sale or sales of the Collateral, and, to the extent permitted by
law, upon any such private sale or sales of the Collateral, to purchase for the
benefit of the Secured Party, the whole or any part of said Collateral so sold,
free of any right or equity of redemption, which equity of redemption each
Debtor hereby releases. In addition, the Secured Party shall have the
right upon any such public sale or sales and, to the extent permitted by law,
upon any such private sale or sales, to bid for all or any part of the
Collateral, free of any right or equity of redemption, which equity of each
Debtor hereby releases, and the amount of any such bid need not be paid by the
Secured Party but shall be credited against the Obligations. Such
sales may be adjourned and continued from time to time with or without
notice. The Secured Party shall have the right to conduct such sales
on each Debtor’s premises or elsewhere and shall have the right to use such
Debtor’s premises without charge for such time or times as the Secured Party
deems necessary or advisable.
(b) Each
Debtor further agrees that upon the occurrence and during the continuation of an
Event of Default, at the Secured Party’s request, it will assemble the
Collateral and make it available to the Secured Party at places which the
Secured Party shall select, whether at such Debtor’s premises or elsewhere for
sale, lease, or other disposition. Until the Secured Party is able to
effect such a sale, lease, or other disposition of Collateral, the Secured Party
shall have the right to hold or use Collateral, or any part thereof, to the
extent that they deem appropriate for the purpose of preserving Collateral or
its value or for any other purpose deemed appropriate by the Secured
Party. The Secured Party shall have no obligation to any Debtor to
maintain or preserve the rights of such Debtor as against third parties with
respect to Collateral while Collateral is in the possession of the Secured
Party. The Secured Party may, if it so elects, seek the appointment
of a receiver or keeper to take possession of Collateral and to enforce any of
the Secured Party’s remedies (for the benefit of the Secured Party), with
respect to such appointment without prior notice or hearing as to such
appointment. The Secured Party shall apply the net proceeds of any
such collection, recovery, receipt, appropriation, realization or sale to the
Obligations as provided in the Transaction Agreements, and only after so paying
over such net proceeds, and after the payment by the Secured Party of any other
amount required by any provision of law, need the Secured Party account for the
surplus, if any, to the Debtors. To the maximum extent permitted by
applicable law, each Debtor waives all claims, damages, and demands against the
Secured Party arising out of the repossession, retention or sale of the
Collateral except such as arise solely out of the gross negligence or willful
misconduct of the Secured Party as finally determined by a court of competent
jurisdiction. Each Debtor agrees that five (5) days prior written
notice by Secured Party of the time and place of any public sale or of the time
after which a private sale may take place is reasonable notification of such
matters. Each Debtor shall remain jointly and severally liable for
any deficiency if the proceeds of any sale or disposition of the Collateral are
insufficient to pay all Obligations, including any attorneys’ fees or other
expenses incurred by the Secured Party to collect such deficiency.
(c) Except
as otherwise specifically provided herein, each Debtor hereby waives
presentment, demand, protest or any notice (to the maximum extent permitted by
applicable law) of any kind in connection with this Agreement or any
Collateral.
6. Limitation
on Duties Regarding Preservation of Collateral. The Secured
Party’s sole duty with respect to the custody, safekeeping and preservation of
the Collateral shall be to deal with it in the same manner as the Secured Party
deals with similar property for its own account. Neither the Secured
Party nor any of its directors, officers, employees or agents shall be liable
for failure to demand, collect or realize upon all or any part of the Collateral
or for any delay in doing so or shall be under any obligation to sell or
otherwise dispose of any Collateral upon the request of any Debtor or
otherwise.
7. Powers
Coupled with an Interest. All
authorizations and agencies contained in this Agreement with respect to the
Collateral are irrevocable and coupled with an interest.
8. No
Waiver; Cumulative Remedies. The Secured Party
shall not by any act (except by a written instrument pursuant to
Section 9(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any default
under the Transaction Agreements or in any breach of any of the terms and
conditions of this Agreement. No failure to exercise, nor any delay
in exercising, on the part of the Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Secured Party of any right or remedy under
this Agreement on any one occasion shall not be construed as a bar to any right
or remedy which the Secured Party would otherwise have on any subsequent
occasion. The rights and remedies provided in this Agreement are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
9. Miscellaneous.
(a) Amendments
and Waivers. Any term of this
Agreement may be amended with the written consent of the parties or their
respective successors and assigns. Any amendment or waiver effected
in accordance with this Section 9(a) shall be binding upon the parties and
their respective successors and assigns.
(b) Transfer;
Successors and Assigns. The terms and conditions
of this Agreement shall be binding upon each Debtor and its successors and
assigns and inure to the benefit of the Secured Party and its successors and
assigns. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement, except as expressly provided in this
Agreement.
(c) Governing
Law. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the parties hereto shall be governed, construed and interpreted in accordance
with the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
(d) Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one instrument.
(e) Titles
and Subtitles. The titles and
subtitles used in this Agreement are used for convenience only and are not
to be considered in construing or interpreting this Agreement.
(f) Notices. Any notice
required or permitted by this Agreement shall be in writing and shall be deemed
sufficient upon receipt, when delivered personally or by courier, overnight
delivery service or confirmed facsimile, or forty-eight (48) hours after being
deposited in the U.S. mail as certified or registered mail with postage prepaid,
if such notice is addressed to the party to be notified at such party’s address
or facsimile number as set forth below or as
subsequently modified by written notice.
(g) Severability. If one or more
provisions of this Agreement are held to be unenforceable under applicable law,
the parties agree to renegotiate such provision in good faith, in order to
maintain the economic position enjoyed by each party as close as possible to
that under the provision rendered unenforceable. In the event that
the parties cannot reach a mutually agreeable and enforceable replacement for
such provision, then (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement
shall be enforceable in accordance with its terms.
(h) Entire
Agreement. This Agreement,
and the documents referred to herein constitute the entire agreement between the
parties hereto pertaining to the subject matter hereof, and any and all other
written or oral agreements existing between the parties hereto concerning such
subject matter are expressly canceled.
[SIGNATURE PAGE FOLLOWS]
The
Debtor and Secured Party have caused this Agreement to be duly executed and
delivered as of the date first above written.
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DEBTOR:
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UCA
Services, Inc., d/b/a NetFabric Technologies, Inc.
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By:
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/s/
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Xxxxx
Xxxx,
CEO
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Address:
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000
Xxxxxx Xxxx Xxxx
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Xxxxxxxxxx,
XX 00000
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Facsimile
Number: 000-000-0000
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DEBTOR:
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By:
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/s/
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Xxxxx
Xxxx, CEO
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Address:
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000
Xxxxxx Xxxx Xxxx
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Xxxxxxxxxx,
XX 00000
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Facsimile
Number: 000-000-0000
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SECURED
PARTY:
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Fortify
Infrastructure Services, Inc.
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By:
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/s/
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Name:
Xxxxxxxx
Xxxxxxxxxx
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Address:
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0000
Xxxxx Xxxxxx, Xxxxx X
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Xxxxx
Xxxxx, XX 00000
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Facsimile
Number: 000-000-0000
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SIGNATURE
PAGE TO SECURITY AGREEMENT
EXHIBIT
A
COLLATERAL OF UCA SERVICES,
INC.
The
Collateral shall consist of all assets of Debtor, including without limitation
all right, title and interest of Debtor in and to the following:
(a) All
personal property, goods and equipment now owned or hereafter acquired,
including without limitation, all machinery, fixtures, vehicles (including motor
vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
(b) All
inventory, now owned or hereafter acquired, including without limitation, all
merchandise, raw materials, parts, supplies, packing and shipping materials,
work in process and finished products including such inventory as is temporarily
out of Debtor’s custody or possession or in transit and including any returns
upon any accounts or other proceeds, including insurance proceeds, resulting
from the sale or disposition of any of the foregoing and any documents of title
representing any of the above, and Debtor’s books relating to any of the
foregoing;
(c) All
contract rights and general intangibles now owned or hereafter acquired,
including, without limitation, easements, rights-of-way, goodwill, trademarks,
servicemarks, trade styles, trade names, patents, patent applications, leases,
license agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, causes of action, claims, computer
programs, computer discs, computer tapes, literature, reports, catalogs, design
rights, income tax refunds, payments of insurance and rights to payment of any
kind;
(d) All
now existing and hereafter arising accounts, contract rights, royalties, license
rights and all other forms of obligations owing to Debtor arising out of the
sale or lease of goods, the licensing of technology or the rendering of services
by Debtor, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all merchandise
returned to or reclaimed by Debtor and Debtor’s Books relating to any of the
foregoing;
(e) All
documents, cash, deposit accounts, securities, letters of credit, certificates
of deposit, instruments and chattel paper now owned or hereafter acquired and
Debtor’s books relating to the foregoing;
(f) All
copyrights, copyright applications, copyright registrations and like protections
in each work of authorship and derivative work thereof, whether published or
unpublished, now owned or hereafter acquired; all trade secret rights, including
all rights to unpatented inventions, know-how, operating manuals, license rights
and agreements and confidential information, now owned or hereafter acquired;
all mask work or similar rights available for the protection of semiconductor
devices, now owned or hereafter acquired; all claims for damages by way of any
past, present and future infringement of any of the foregoing;
(g) All
real property, leases of real property, easements, right-of-way, fiber conduit,
man holes and hand holes, and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located; and
(i) Any
and all claims, rights and interests in any of the above and all substitutions
for, additions and accessions to and proceeds thereof.
EXHIBIT
A
COLLATERAL OF NETFABRIC
HOLDINGS, INC.
The
Collateral shall consist of all assets of Debtor, including without limitation
all right, title and interest of Debtor in and to the following:
(a) All
personal property, goods and equipment now owned or hereafter acquired,
including without limitation, all machinery, fixtures, vehicles (including motor
vehicles and trailers), and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located;
(b) All
inventory, now owned or hereafter acquired, including without limitation, all
merchandise, raw materials, parts, supplies, packing and shipping materials,
work in process and finished products including such inventory as is temporarily
out of Debtor’s custody or possession or in transit and including any returns
upon any accounts or other proceeds, including insurance proceeds, resulting
from the sale or disposition of any of the foregoing and any documents of title
representing any of the above, and Debtor’s books relating to any of the
foregoing;
(c) All
contract rights and general intangibles now owned or hereafter acquired,
including, without limitation, easements, rights-of-way, goodwill, trademarks,
servicemarks, trade styles, trade names, patents, patent applications, leases,
license agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, causes of action, claims, computer
programs, computer discs, computer tapes, literature, reports, catalogs, design
rights, income tax refunds, payments of insurance and rights to payment of any
kind;
(d) All
now existing and hereafter arising accounts, contract rights, royalties, license
rights and all other forms of obligations owing to Debtor arising out of the
sale or lease of goods, the licensing of technology or the rendering of services
by Debtor, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all merchandise
returned to or reclaimed by Debtor and Debtor’s Books relating to any of the
foregoing;
(e) All
documents, cash, deposit accounts, securities, letters of credit, certificates
of deposit, instruments and chattel paper now owned or hereafter acquired and
Debtor’s books relating to the foregoing;
(f) All
copyrights, copyright applications, copyright registrations and like protections
in each work of authorship and derivative work thereof, whether published or
unpublished, now owned or hereafter acquired; all trade secret rights, including
all rights to unpatented inventions, know-how, operating manuals, license rights
and agreements and confidential information, now owned or hereafter acquired;
all mask work or similar rights available for the protection of semiconductor
devices, now owned or hereafter acquired; all claims for damages by way of any
past, present and future infringement of any of the foregoing;
(g) All
real property, leases of real property, easements, right-of-way, fiber conduit,
man holes and hand holes, and any interest in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing, wherever located; and
(i) Any
and all claims, rights and interests in any of the above and all substitutions
for, additions and accessions to and proceeds thereof.
