EXHIBIT 10.50
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated effective the 14th day of November,
2000, is made by and among, XXXXXX.XXX, INC, a Delaware corporation ("Debtor"),
and XXXXXX X. XXXXXXXX (the "Secured Party").
WHEREAS, the Secured Party requires, as an inducement to provide the
Financing (as defined below), to be secured on the terms and conditions below;
WHEREAS, the Secured Party has advanced the sum of One Hundred Thousand
Dollars to the Debtor, due on demand, with interest at the rate of Ten percent
(10%) per annum, and the to Parties hereto contemplate further advances by the
Secured Party to the Debtor; (the completed and contemplated advances
collectively referred to as the "Financing").
WHEREAS, the Debtor issued to the Secured Party, as part of the
Financing a secured promissory note, with interest at the rate of Ten percent
(10%) per annum, in the principal amount of One Hundred Thousand Dollars, dated
effective the 31st day of October and hereby warrants, covenants and agrees to
issue secured promissory notes for any future advances as part of the Financing
(the "Note") ;
WHEREAS, the Debtor has agreed, as an inducement to the Financing, to
secure all of its obligations under the Note by granting to the Secured Party a
security interest in certain assets of the Debtor listed on SCHEDULE "A"
attached hereto and incorporated herein by reference, on the terms and
conditions set forth herein;
NOWTHEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Grant of Security Interest. As collateral security for the payment,
performance and observance of the Note (the "Obligations"), the Debtor hereby
grants to the Secured Party a security interest in (a) any monies due the Debtor
arising out of a secured promissory note dated effective the 31st day of
October, payable to the Debtor by XxxxxXxxxx.xxx, Inc., (b) , and a collateral
assignment of, all of the Debtor's intellectual property (including, but not
limited to patents, patent applications, patents pending, licenses and
trademarks), and (c) all of the Debtor's account receivables, inventory and
equipment, as each are described on SCHEDULE "A" attached hereto, together with
any and all additions thereto and replacements and proceeds thereof
(collectively, the "Collateral").
2. Representations, Warranties and Covenants. The Debtor represents, warrants
and covenants as follows:
(a) The Debtor has full corporate power, authority and legal right to
grant a security interest in all of the Collateral pursuant to this Agreement,
and this Agreement constitutes the legal, valid and binding obligation of the
Debtor, enforceable against it in accordance with the terms.
(b) No consent of any other party (including, without limitation,
stockholders or creditors of any of the Debtor) and no consent, authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority or regulatory body is required and has not been obtained either (i)
for the grant of the security interest in the Collateral pursuant to this
Agreement, or (ii) for the execution, delivery or performance of this Agreement.
(c) All filings, registrations and recordings necessary, appropriate or
reasonably requested by the Secured Party to create, preserve, protect and
perfect the security interest granted by the Debtor to the Secured Party hereby
in respect of the Collateral and required to be
made on or before the date hereof have been accomplished. The security interest
granted to the Secured Party pursuant to this Agreement in and to the Collateral
constitutes and hereafter will constitute a perfected security interest therein
(assuming fully executed UCC-1 Financing Statements are properly filed with the
Secretary of State of the State of New York, County of New York, superior and
prior to the rights of all other persons therein, and subject to no other Liens
(as such term is defined below)).
(d) The Debtor is, as of the date hereof, and, as to Collateral
acquired by it from time to time after the date hereof, will be, the owner of
the Collateral free from any Lien, except Permitted Liens (as such term is
defined below) or other right, title or interest of any persons other than the
Secured Party, and the Debtor shall defend its ownership of the Collateral
against all claims and demands of all persons at any time claiming any interest
therein adverse to the Secured Party.
(e) There is no financing statement or assignment on file in any
jurisdiction (or similar statement, notice of assignment or instrument of
registration under the law of any jurisdiction or the U.S. Patent and Trademark
Office) covering or purporting to cover any interest of any kind in the
Collateral, and the Debtor shall not execute or authorize to be filed in any
public office any financing statement (or similar statement, notice of
assignment or instrument of registration under the law of any jurisdiction)
relating to its ownership of the Collateral, except financing statements filed
or to be filed in respect of, and covering the security interests granted hereby
by the Debtor or granted by the Debtor to such holders.
(f) The chief executive office of Debtor is located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Debtor shall not move its chief executive
offices until, (i) it has given to the Secured Party not less than fifteen (15)
days' prior written notice of its intention so to do (or,
if move is within New York County, such prior notice up to fifteen (15) days as
can be reasonably given), setting forth the new location (which shall be in the
continental United States of America) and such other information in connection
therewith as the Secured Party may reasonably request, and (ii) with respect to
such new location, the Debtor shall have taken all action reasonably
satisfactory to the Secured Party to maintain the perfection and proof of the
security interest of the Secured Party in the Collateral intended to be granted
hereby, including, without limitation, obtaining waivers of landlord's or
warehouseman's liens with respect to such new location.
(g) The Debtor shall not change its corporate name until (i) it shall
have given to the Secured Party not less than fifteen (15) days' prior written
notice of its intention so to do, clearly describing such new name and providing
such other information in connection therewith as the Secured Party may request,
and (ii) with respect to such new name, the Debtor shall have taken all action
reasonably satisfactory to the Secured Party to maintain the perfection and
proof of the security interest of the Secured Party in the Collateral intended
to be granted hereby.
(h) All of the Collateral held on the date hereof and provided for
herein by the Debtor is located at the Debtor's chief executive offices at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (the "Collateral Location"). All
Collateral now held or subsequently acquired shall be kept at the Collateral
Location or such new location as the Debtor may establish, provided, however,
that before establishing such new location, (i) the Debtor shall have given the
Secured Party no less than fifteen (15) days' prior notice thereof (or, if move
is within New York County, such prior notice up to fifteen (15) days as can be
reasonably given), clearly describing
such new location (which shall be in the continental United States of America)
and shall have provided such other information in connection therewith as the
Secured Party may reasonably request, and (ii) with respect to such new
location, the Debtor shall have taken all action reasonably satisfactory to the
Secured Party to maintain the perfection and proof of the security interest in
the Collateral intended to be granted hereby, including, without limitation,
obtaining waivers of landlord's or warehouseman's liens with respect to such new
location.
(i) The Debtor will not assign, transfer, sell, lease or otherwise
dispose of any of the Collateral except in the ordinary course of business.
(j) The Debtor will use its ownership of the Collateral for lawful
purposes only, and in conformity with all applicable laws, ordinances and
regulations.
(k) The Collateral is now and shall remain personal property, and the
Debtor will not permit any material part of the Collateral to become a fixture
without prior written notice to and consent of the Secured Party and without
first making all arrangements, and delivering, or causing to be delivered, to
the Secured Party all instruments and documents, including, without limitation,
waivers and subordination agreements by any landlords or mortgagees, reasonably
requested by and reasonably satisfactory in form and substance to the Secured
Party to preserve and protect the security interest granted herein, and to
effectuate or maintain the priority thereof, against all persons.
(l) The Debtor will maintain at its chief executive office proper books
of account and records in accordance with generally accepted accounting
principles applied on a consistent basis, and will deliver to the Secured Party
the following:
(i) as soon as available and in any event within sixty (60)
days after the end of each quarter of its fiscal years, its consolidated balance
sheet as of the end of such quarter,
statements of income, stockholders' equity and the related statements of its
cash flows for the period commencing at the end of the previous fiscal year and
ending with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding period of the preceding
fiscal year in reasonable detail and prepared in accordance with generally
accepted accounting principles consistently applied (subject to year-end audit
adjustments) in the form filed with the Securities and Exchange Commission
("Commission") or, if no such filings are made, such financial information shall
be duly certified by the President or Chief Financial Officer; and
(ii) as soon as available and in any event within one hundred
and forty (140) days after the end of each of its fiscal years, a copy of its
annual audit report for such year, including therein its consolidated balance
sheet as of the end of such fiscal year and statements of income and
stockholders' equity and of its cash flows for such fiscal year, all duly
certified by independent public accountants, which, if filed with the
Commission, may be in such form as so filed.
(m) The Secured Party and their agents, advisors and counsel may, at
the Secured Party's expense, visit and inspect any of the facilities of the
Debtor for the purpose of inspecting the Collateral, at reasonable times and
with reasonable prior notice during normal business hours in a manner not
disruptive to the Debtor's business. The Debtor will furnish to the Secured
Party such other information as it from time to time may reasonably request.
(n) The Debtor will preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation, and
qualify and remain qualified, as a foreign corporation in each jurisdiction in
which such qualification is necessary in view of its business and operations or
the ownership of its properties, including, without limitation, all
jurisdictions in which any of the Collateral is located. The Debtor shall
preserve and maintain all licenses and other rights to use patents, processes,
licenses, trademarks, trade names, inventions, intellectual property rights or
copyrights owned or possessed by it and necessary to the conduct of its
business.
(o) The Debtor will pay and discharge when due and payable, all lawful
taxes, subject to any available extensions, assessments and governmental charges
or levies imposed upon the income, profits, property or business of it;
provided, however, that any such tax, assessment, charge or levy need not be
paid if the validity thereof shall currently be contested in good faith by
appropriate proceedings and if it shall have set aside on its books adequate
reserves with respect thereto, and provided, further, that it will pay all such
taxes, assessments, charges or levies forthwith upon the commencement of
proceedings to foreclose any Lien which may have attached to the Collateral as
security therefore.
(p) The Debtor will not create, incur, assume or suffer to exist any
Lien of any nature, upon or with respect to any of the Collateral or assign or
otherwise convey any right to receive income, except Permitted Liens.
(q) The Debtor will not incur or suffer to exist any Indebtedness (as
such term is defined below) except:
(i) Indebtedness secured by purchase money security interests
securing the purchase price of goods and services and capitalized equipment
leases, but specifically excluding any sale leaseback of all or any portion of
the Collateral; and
(ii) Indebtedness relating to current liabilities incurred in
the ordinary course of business, including, without limitation, liabilities
incurred in fulfillment of purchase orders
received by the Debtor; but in no event in excess of Fifty Thousand Dollars
($50,000) without prior written consent.
(iii) Indebtedness related to debt or equity fund raising
without the written consent of the Secured Party.
(r) The Debtor will not permit any change in the nature of its business
or merge or consolidate with any other person, nor permit any impairment of the
Collateral.
(s) The Debtor will not purchase, redeem, retire, or otherwise acquire
for value any shares of its respective capital stock (or rights, options or
warrants to purchase such shares) now or hereafter outstanding or return any
capital to its stockholders, and Debtor shall not declare or pay any dividends
or make any distribution of assets to its stockholders as such.
(t) The Debtor will not sell, transfer, lease or otherwise dispose of,
in one transaction or a series of transactions, all or substantially all of its
assets; nor will Debtor grant an exclusive license of, or any other restriction
on the exploitation by the Debtor of, any of the Collateral.
(u) The Debtor shall conduct its business in the ordinary course and
the Debtor shall not permit or cause work typically performed by it to be
performed by another Affiliate of the Debtor or to take any other actions to
purposely diminish the value of the Collateral;
(v) The Debtor will not guarantee any Indebtedness or make any loan or
advance to any person, except customary travel and entertainment advances to
employees.
(w) The Debtor will, at its own cost and expense, perform all acts and
execute all documents reasonably requested by the Secured Party from time to
time to evidence, perfect, maintain or enforce the Secured Party's security
interest granted herein, and to effectuate or maintain the priority thereof or
otherwise to carry out the provisions and purposes of this Agreement.
(x) The Debtor shall promptly advise the Secured Party of any event or
occurrence which results in or is likely to result in a breach of the covenants
contained herein, describing such event or occurrence in reasonable detail. The
Debtor will also promptly advise the Secured Party of any facts which cast any
doubt upon the accuracy or completeness in any material respects of any of the
representations and warranties contained herein.
3. Definitions. For purposes of this Agreement, the following terms shall have
the following meanings:
(a) "Affiliate" has the meaning ascribed to that term in Rule 12b-2
under the Securities Exchange Act of 1934, or any successor rule;
(b) "Indebtedness" shall mean, with respect to any person, (i) all
obligations of such person for borrowed money, or with respect to deposits or
advances of any kind (other than deposits, advances or excess payments accepted
in connection with the sale by such person of products or services in the
ordinary course of business), (ii) all obligations of such person evidenced by
bonds, debentures, notes or similar instruments, with the specific exception of
certain contemplated offerings made through X.X. Xxxxxx & Company, including,
but not limited to an exempt offering by the Debtor of up to 92 units consisting
of convertible debentures and warrants offered to accredited investors and/or
any other private placement of equity or debt offered by the Company with the
written permission of the Secured Party, (iii) all obligations of such person
upon which interest charges are customarily paid (other than obligations
accepted in connection with the purchase by such person of products or services
in the ordinary course of business), (iv) all obligations of such person under
conditional sale or other title retention agreements relating to property
purchased by such person, (v) all obligations of such person issued or assumed
as the deferred purchase price of property or services (other than accounts
payable to suppliers incurred in the ordinary course of business and paid when
due), (vi) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien or security interest on property owned or acquired by such person
whether or not the obligations secured thereby have been assumed, (vii) all
obligations of such person under leases required to be accounted for as capital
leases under generally accepted accounting principles, and (viii) all guarantees
of such person;
(c) "Lien" shall mean any restriction, mortgage, pledge, assignment,
security interest, encumbrance, lien or charge of any kind, any conditional sale
or other title retention agreement or any lease in the nature thereof (including
any agreement to give any of the foregoing);
(d) "Permitted Liens" shall mean:
(i) for taxes, assessments or governmental charges or levies
on property of any Debtor if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith and
by appropriate proceedings;
(ii) imposed by law, such as carriers, warehousemen's and
mechanics' Liens and other similar Liens arising in the ordinary course of
business;
(iii) arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions, or other social
security or retirement benefits, or similar legislation;
(iv) arising from any litigation or proceeding which is being
contested in good faith by appropriate proceedings, provided, however, that no
execution or levy has been made;
(v) securing the performance of bids, tenders, contracts
(other than for the repayment of borrowed money), statutory obligations and
surety bonds; and.
4. Events of Default. The Debtor shall be in default under this Agreement upon
the happening of any of the following events or conditions (herein called
"Events of Default"):
(a) The occurrence of an Event of Default under any Note (which Event
of Default shall be deemed a default under all Notes);
(b) The Debtor shall fail to perform any of its respective obligations
under this Agreement, including, without limiting the generality of the
foregoing, any covenants under Section 2 herein, and such failure shall continue
beyond five (5) days after notice of such failure to perform is provided by the
Secured Party to the Debtor; or
(c) Any representation, warranty or statement made by the Debtor herein
is found to have been false or misleading in any material respect as of the time
when made.
5. Remedies Upon Default. Upon the occurrence of an Event of Default, and at any
time thereafter while such Event of Default remains unremedied and unwaived, the
Secured Party shall notify, in writing, the Debtor of such default. Upon the
receipt by the Debtor of such written notice, the Secured Party shall have the
following rights and remedies (to the extent permitted by applicable law), in
addition to all rights and remedies of the Secured Party under the UCC, at law
or in equity, and in addition to all rights and remedies granted to the Secured
Party under the Note, all such rights and remedies being cumulative, not
exclusive and enforceable alternatively, successively or concurrently:
(a) The Secured Party may, at any time and from time to time, with or
without judicial process or the aid and assistance of others, enter upon the
Collateral Location and, without resistance or interference by the Debtor, take
possession of the Collateral, and/or dispose
of any Collateral on any such premises, and/or require any of the Debtor to
assemble and make available to the Secured Party, at the expense of the Debtor,
any Collateral at any place and time designated by the Secured Party which is
reasonably convenient to all Parties, and/or remove any Collateral from any such
premises for the purpose of effecting sale or other disposition thereof and/or
sell, resell, lease, assign and deliver, grant options for or otherwise dispose
of any Collateral in its then condition or following any commercially reasonable
preparation or processing, at public or private sale or proceedings or
otherwise, by one or more contracts, in one or more parcels, at the same or
different times, with or without having the Collateral at the place of sale or
other disposition, for cash and/or credit, and upon any terms, at such place(s)
and time(s) and to such person(s) as the Secured Party deems best, all without
demand, notice or advertisement whatsoever except that, where an applicable
statute requires reasonable notice of sale or other disposition, the Debtor
hereby agrees that the sending of five (5) days' notice by certified mail,
return receipt requested, to the Debtor's address set forth in Xxxxxxx 0,
Xxxxxxxxx (x) hereof, or such other address as the Debtor may provide to the
Secured Party from time to time, shall be deemed reasonable notice thereof. If
any Collateral is sold by the Secured Party upon credit or for future delivery,
the Secured Party shall not be liable for the failure of the purchaser to pay
for same and in such event the Secured Party may resell such Collateral in
accordance with the terms set forth above. The Secured Party may buy any
Collateral at any public sale and, if any Collateral is of a type customarily
sold in a recognized market or is of the type which is the subject of widely
distributed standard price quotations, the Secured Party may buy such Collateral
at private sale and in each case may make payment therefore by any means.
(b) The Secured Party may apply the cash proceeds actually received
from any sale or other disposition of Collateral to the reasonable expenses of
retaking, holding, preparing for sale,
selling, leasing and the like, to reasonable attorneys' fees and all reasonable
legal, travel and other expenses which may be incurred by the Secured Party in
attempting to collect the Obligations or enforce this Agreement or in the
prosecution or defense of any action or proceeding related to the subject matter
of this Agreement; and then toward the payment of the Obligations; and the
Debtor shall remain liable and will pay the Secured Party on demand any
deficiency remaining after the application of such cash proceeds, together with
interest thereon at the highest rate then payable on the Obligations and the
balance of any expenses unpaid, with any surplus to be paid to the Debtor,
subject to any duty of the Secured Party imposed by law to the holder of any
subordinate security interest in the Collateral known to the Secured Party.
(c) The Secured Party may appropriate, set off and apply to the payment
of the Obligations, any Collateral in or coming into the possession of the
Secured Party or its agents, without notice to the Debtor and in such manner as
the Secured Party may, in its reasonable discretion, determine without regard to
the existence or sufficiency of other collateral therefore.
6. Power of Attorney. To effectuate the terms and provisions hereof, the Debtor,
so long as an Event of Default has occurred and is continuing, hereby designates
and appoints each of the Secured Party and the Secured Party's designees or
their agents as attorneys-in-fact of the Debtor, irrevocably and with power of
substitution, each with authority to:
(a) endorse the name of the Debtor on any notes, acceptances, checks,
drafts, money orders, instruments or other evidences of Collateral that may come
into the Secured Party's possession;
(b) sign the name of the Debtor on any invoices, documents, drafts
against and notices to account debtors or obligors of the Debtor, assignments
and requests for verification of accounts;
(c) execute proofs of claim and loss; (iv) execute endorsements,
assignments or other instruments of conveyance or transfer with respect to
instruments which constitute the Collateral;
(d) adjust and compromise any claims under insurance policies or
otherwise;
(e) execute releases;
(f) receive, open and dispose of all mail addressed to the Debtor and
notify the Post Office authorities to change the address for delivery of mail
addressed to the Debtor to such address as the Secured Party may designate; and
(g) do all other acts and things necessary or advisable in the sole
discretion of the Secured Party to carry out and enforce this Agreement or the
Obligations. All acts done under the foregoing authorization are hereby ratified
and approved and neither the Secured Party nor any designee or an agent thereof
shall be liable for any acts of commission or omission, for any error of
judgment or for any mistake of fact or law; provided, that the Secured Party
shall not be relieved of liability to the extent its or its agent's or
designee's act, error or mistake constituted gross negligence or willful
misconduct. This power of attorney being coupled with an interest is irrevocable
while any Obligations shall remain unpaid.
7. Care of Collateral. The Secured Party shall have the duty to exercise
reasonable care in the custody and preservation of any Collateral in its
possession, which duty shall be fully satisfied if the Secured Party accord such
Collateral treatment substantially the same as that which it accord similar
property owned by them, and, with respect to the Secured Party's custody and
preservation of any of the Collateral in their possession, the Debtor releases
the Secured Party from, and agree to indemnify, defend, and hold harmless the
Secured Party with respect to, any third party claims, causes of actions, and
demands at any time arising out of or with respect to the Secured Party's
custody and/or preservation of the Collateral at any time in the Secured
Party's possession, except that such release and indemnity shall not be
applicable to the extent that any such claims, causes of actions, or demands
have resulted from the Secured Party's gross negligence or willful misconduct.
The Secured Party's prior recourse to any Collateral shall not constitute a
condition of any demand, suit or proceeding for payment or collection of the
Obligations.
8. Expenses. So long as an Event of Default has occurred and is continuing, upon
demand, the Debtor will pay to the Secured Party the amount of any and all
reasonable expenses, including the fees and expenses of its counsel and the fees
and expenses of any experts and agents, which the Secured Party may incur in
connection with (i) the collection of the Obligations, (ii) the administration
of this Agreement, (iii) the custody or preservation of, or the sale of,
collection from, or other realization upon, any of the Collateral, (iv) the
exercise or enforcement of any of the rights of the Secured Party hereunder, or
(v) the failure of the Debtor to perform or observe any of the provisions
hereof. All amounts payable by the Debtor under this Section shall be due upon
demand and shall be part of the Obligations. The Debtor's obligations under this
Section shall survive the termination of this Agreement and the discharge of the
Debtor's other obligations hereunder.
9. Indemnification.
(a) The Debtor agrees to indemnify, reimburse and hold the Secured
Party and its successors, assigns, employees, officers, directors, agents,
attorneys and servants (collectively, "Indemnitees") harmless from and against
any and all liabilities, obligations, damages, injuries, penalties, claims,
demands, actions, suits, judgments and any and all reasonable costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) of
whatsoever kind and nature imposed on, asserted against, or incurred by any of
the Indemnitees, in any way
relating to or arising out of this Agreement or in any other way connected with
the administration of the transactions contemplated hereby or the enforcement of
any of the terms hereof, or the preservation of any rights hereunder, or in any
way relating to or arising out of the manufacture, processing, ownership,
ordering, purchase, delivery, testing, control, lease, possession, operation or
other disposition or use of the Collateral by the Indemnitees (including,
without limitation, latent or other defects, whether or not discoverable);
provided, that the Debtor shall have no obligation to an Indemnitee hereunder to
the extent that such indemnified liabilities arise from the gross negligence or
willful misconduct of such Indemnitee. Upon written notice by any Indemnitee of
the assertion of such a liability, obligation, damage, injury, penalty, claim,
demand, action, judgment or suit, Debtor shall assume full responsibility for
the defense thereof. If any action, suit or proceeding arising from any of the
foregoing is brought against any Indemnitee, Debtor shall, if requested by such
Indemnitee, defend such action, suit or proceeding. Each Indemnitee shall,
unless any other Indemnitee has made the request described in the preceding
sentence and such request has been complied with, have the right to employ its
own counsel (or internal counsel) to investigate and control the defense of any
matter covered by the indemnity set forth in this Section, and the fees and
expenses of such counsel shall be paid by the Debtor; provided that, only to the
extent no conflict exists between and among the Indemnitees as reasonably
determined by the Indemnitees, the Debtor shall not be obligated to pay the fees
and expenses or more than one counsel for all Indemnitees as a group with
respect to any such matter, action, suit or proceeding.
(b) Contribution. If and to the extent that the obligations of the
Debtor under this Section are unenforceable for any reason, the Debtor hereby
agrees to make the maximum
contribution to the payment and satisfaction of such obligations that is
permissible under applicable law.
(c) Survival. The obligations of the Debtor contained in this Section
shall survive the termination of this Agreement and the discharge of the
Debtor's other obligations hereunder. 10. Waivers. No act, omission or delay by
the Secured Party or course of dealing between the Secured Party and the Debtor
shall constitute a waiver of the rights and remedies of the Secured Party
hereunder. No single or partial waiver by the Secured Party of any Event of
Default or right or remedy which it may have shall operate as a waiver of any
other Event of Default, right or remedy or of the same Event of Default, right
or remedy on a future occasion. The Debtor hereby waives presentment, notice of
dishonor and protest of all instruments included in or evidencing any
Obligations or Collateral, and all other notices and demands whatsoever (except
as expressly provided herein).
11. Governing Law; Jurisdiction; etc. This Agreement shall be governed by and
construed in accordance with the law of the State of New York (without giving
effect to the choice of law or conflict of laws principles thereof). Any legal
action or proceeding with respect to this Agreement may be brought in the courts
of the State of New York, County of Nassau, or of the United States of America
for the Eastern District of New York, and, by execution and delivery of this
Agreement, each of the Debtor hereby accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The Debtor hereby knowingly, voluntarily, intentionally and irrevocably
waives, in connection with any such action or proceeding: (i) any objection,
including, without limitation, any objection to the laying of venue or based on
the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions and
(ii) to the
maximum extent not prohibited by law, any right it may have to a trial by jury
in respect of any litigation directly or indirectly arising out of, under or in
connection with this Agreement. The Debtor irrevocably consents to the service
of process of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address set forth in Section 12 below, or at such other
address as it may provide to the other Party hereto from time to time. Nothing
herein shall affect the right of a Party hereto to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against a Party in any other jurisdiction.
12. Notices. Unless otherwise provided herein, all notices, requests, consents
and other communications hereunder shall be in writing, shall be addressed to
the receiving party's address set forth below or to such other address as a
Party may designate by notice hereunder, and shall be either (i) delivered by
hand, (ii) sent by reputable overnight courier by next day, priority, or (iii)
sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Debtor: XXXxxx.xxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
Chief Executive Officer
With a copy in each
case to: Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
If to The Secured Party: Xxxxxx X. Xxxxxxxx
C/o Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
With a copy in each
case to: Moritt, Hock, Hamroff & Xxxxxxxx, LLP
000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
All notices, requests, consents and other communications hereunder
shall be deemed to have been given either (i) if by hand, at the time of the
delivery thereof to the receiving Party at the address of such Party set forth
above, (ii) if sent by overnight courier, next day delivery, on the next
business day following the day such notice is delivered to the courier service,
or (iii) if sent by registered or certified mail, return receipt requested, on
the fifth business day following the day such mailing is made.
13. Amendments and Waivers. No provision hereof shall be modified, altered or
limited except by a written instrument expressly referring to this Agreement and
to such provision, and executed by the Debtor and the Secured Party.
14. Severability. In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in this
Agreement shall be unreasonable or unenforceable in any respect, then such
provision shall be deemed limited to the extent that such court deems it
reasonable and enforceable, and as so limited shall remain in full force and
effect. In the event that such court shall deem any such provision, or portion
thereof, wholly unenforceable, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
15. Benefit of Agreement; Continuing Security Interest. This Agreement and all
Obligations shall be binding upon the administrators, successors and assigns of
the Debtor and shall, together with the rights and remedies of the Secured Party
hereunder, inure to the benefit of the Secured Party, its respective successors,
endorsees and assigns. This Agreement shall create a continuing
security interest in the Collateral which shall remain in full force and effect
until payment in full of the Obligations.
16. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the Parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
17. Restoration of Rights. In the event that the Secured Party shall have
instituted any proceeding to enforce any right, power or remedy under this
Agreement by foreclosure, sale, entry or otherwise, and such proceeding shall
have been discontinued or abandoned for any reason or shall have been determined
therein or in a later proceeding adversely to the Secured Party, then and in
every such case, the Parties hereto shall be restored to their respective former
positions and rights hereunder with respect to the Obligations and the
Collateral, and all rights, remedies and powers of the Secured Party shall
continued as if no such proceeding had been instituted.
18. Counterparts. This Agreement may be executed in any number of counterparts
and by the different Party hereto on separate counterparts, each of which when
so executed and delivered shall be an original and all of which shall together
constitute one and the same agreement.
19. Captions. The captions of the sections of this Agreement have been inserted
for convenience only and shall not in any way affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed or caused this
Agreement to be executed as a sealed instrument as of the date first above set
forth.
DEBTOR:
-------
XXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Executive Officer and
Chairman of the Board of Directors
SECURED PARTY:
-------------
/s/ Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
SCHEDULE "A"
------------
LIST OF COLLATERAL
------------------
PATENT NUMBER ISSUE DATE DESCRIPTION
------------- ---------- -----------
6,047,292 April 4, 2000 The Patent is directed to a
multi-session, digitally encoded
recording medium navigable by an
Internet browser.
Continuation Application filed by counsel to the Debtor regarding previously
rejected claims.
TRADEMARK SERIAL NUMBER XXXX
----------------------- ----
75 / 426,937 CDK
Issued: June 6, 2000
Reg. No. 2,361,144
75 / 757,751 MIX FACTORY
Filed: July 22, 1999
Accounts Receivable
Inventory
Equipment
