SECURITY AGREEMENT
EXHIBIT
10.2
1. Identification.
This Security Agreement (the "Agreement"), dated as of December 5, 2007, is
entered into by and between Ido Security Inc., a Nevada corporation
("Debtor"), and Xxxxxxx X. Xxxxxxx, as collateral agent acting in the
manner and to the extent described in the Collateral Agent Agreement defined
below (the "Collateral Agent"), for the benefit of the parties identified on
Schedule A hereto (collectively, the "Lenders").
2. Recitals.
2.1 The Lenders
have made, are making and will be making loans to Debtor (the
"Loans"). It is beneficial to Debtor that the Loans were made and are
being made.
2.2 The Loans
are and will be evidenced by certain promissory notes (each a
“Note”) issued by Debtor on or about the date of and after the date of this
Agreement pursuant to subscription agreements (each a “Subscription Agreement”)
to which Debtor and Lenders are parties. The Notes are further
identified on Schedule A hereto and were and will be executed by Debtor as
“Borrower” or “Debtor” for the benefit of each Lender as the “Holder” or
“Lender” thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Debtor and for
other good and valuable consideration, and as security for the performance by
Debtor of its obligations under the Notes and as security for the repayment
of the Loans and all other sums due from Debtor to Lenders arising under the
Transaction Documents (as defined in the Subscription Agreement), and any other
agreement between or among them (collectively, the "Obligations"), Debtor, for
good and valuable consideration, receipt of which is acknowledged, has agreed to
grant to the Collateral Agent, for the benefit of the Lenders, a security
interest in the Collateral (as such term is hereinafter defined), on the terms
and conditions hereinafter set forth. Obligations include all future
advances by Lenders to Debtor made pursuant to the Subscription
Agreement.
2.4 The Lenders
have appointed the Collateral Agent pursuant to that certain Collateral
Agent Agreement dated at or about the date of this Agreement (“Collateral Agent
Agreement”), among the Lenders and Collateral Agent.
2.5 The
following defined terms which are defined in the Uniform Commercial Code in
effect in the State of New York on the date hereof are used herein as so
defined: Accounts, Chattel Paper, Documents, Equipment, General
Intangibles, Instruments, Inventory and Proceeds. Other capitalized
terms employed herein shall have the meanings attributed to them in the
Subscription Agreement.
3. Grant of General Security
Interest in Collateral.
3.1 As security
for the Obligations of Debtor, Debtor hereby grants the Collateral Agent, for
the benefit of the Lenders, a security interest in the Collateral.
3.2 “Collateral”
shall mean all of the following property of Debtor:
(A) All now owned and hereafter acquired right,
title and interest of Debtor in, to and in respect of all Accounts, Goods, real
or personal property, all present and future books and records relating to the
foregoing and all products and Proceeds of the foregoing, and as set forth
below:
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(i) All now
owned and hereafter acquired right, title and interest of Debtor in, to and in
respect of all: Accounts, interests in goods represented by Accounts, returned,
reclaimed or repossessed goods with respect thereto and rights as an unpaid
vendor; contract rights; Chattel Paper; investment property; General Intangibles
(including but not limited to, tax and duty claims and refunds, registered and
unregistered patents (including but not limited to the patents, patents pending
and applications set forth on Schedule B hereto), trademarks, service marks,
certificates, copyrights trade names, applications for the foregoing, trade
secrets, goodwill, processes, drawings, blueprints, customer lists, licenses,
whether as licensor or licensee, chooses in action and other claims, and
existing and future leasehold interests in equipment, real estate and fixtures);
Documents; Instruments; letters of credit, bankers’ acceptances or guaranties;
cash moneys, deposits; securities, bank accounts, deposit accounts, credits and
other property now or hereafter owned or held in any capacity by Debtor, as well
as agreements or property securing or relating to any of the items referred to
above;
(ii) Goods: All
now owned and hereafter acquired right, title and interest of Debtor in, to and
in respect of goods, including, but not limited to:
(a) All Inventory,
wherever located, whether now owned or hereafter acquired, of whatever kind,
nature or description, including all raw materials, work-in-process, finished
goods, and materials to be used or consumed in Debtor’ business; finished goods,
timber cut or to be cut, oil, gas, hydrocarbons, and minerals extracted or to be
extracted, and all names or marks affixed to or to be affixed thereto for
purposes of selling same by the seller, manufacturer, lessor or licensor thereof
and all Inventory which may be returned to any Debtor by its customers or
repossessed by Debtor and all of Debtor’s right, title and interest in and to
the foregoing (including all of a Debtor’s rights as a seller of
goods);
(b) All Equipment and
fixtures, wherever located, whether now owned or hereafter acquired, including,
without limitation, all machinery, furniture and fixtures, and any and all
additions, substitutions, replacements (including spare parts), and accessions
thereof and thereto (including, but not limited to Debtor’s rights to acquire
any of the foregoing, whether by exercise of a purchase option or
otherwise);
(iii) Property: All
now owned and hereafter acquired right, title and interests of Debtor in, to and
in respect of any other personal property in or upon which a Debtor has or may
hereafter have a security interest, lien or right of setoff;
(iv) Books and Records: All
present and future books and records relating to any of the above including,
without limitation, all computer programs, printed output and computer readable
data in the possession or control of the Debtor, any computer service bureau or
other third party; and
(v) Products and
Proceeds: All products and Proceeds of the foregoing in
whatever form and wherever located, including, without limitation, all insurance
proceeds and all claims against third parties for loss or destruction of or
damage to any of the foregoing.
(B) All now owned and hereafter acquired
right, title and interest of Debtor in, to and in respect of the
following:
(i)
Debtor will deliver to the Collateral Agent, the shares of stock,
partnership interests, member interests or other equity interests at any time
and from time to time acquired by Debtor of any and all entities now or
hereafter existing, (such entities, being hereinafter referred to collectively
as the "Pledged Issuers" and individually as a "Pledged Issuer"), including but
not limited to 100% of the equity ownership of each Guarantor, the certificates
representing such shares, partnership interests, member interests or other
interests all options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments, investment property
and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such shares,
partnership interests, member interests or other interests;
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(ii) all
additional shares of stock, partnership interests, member interests or other
equity interests from time to time acquired by Debtor, of any Pledged Issuer,
the certificates representing such additional shares, all options and other
rights, contractual or otherwise, in respect thereof and all dividends,
distributions, cash, instruments, investment property and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such additional shares, interests or equity;
and
(iii) all security
entitlements of Debtor in, and all Proceeds of any and all of the foregoing in
each case, whether now owned or hereafter acquired by a Debtor and howsoever its
interest therein may arise or appear (whether by ownership, security interest,
lien, claim or otherwise).
3.3 The Collateral
Agent is hereby specifically authorized, after the Maturity Date (defined in the
Notes) accelerated or otherwise, or after the occurrence of an Event of Default
(as defined herein) and the expiration of any applicable cure period, to
transfer any Collateral into the name of the Collateral Agent and to take any
and all action deemed advisable to the Collateral Agent to remove any transfer
restrictions affecting the Collateral.
4. Perfection of Security
Interest.
4.1 Debtor shall prepare, execute and
deliver to the Collateral Agent UCC-1 Financing Statements. The
Collateral Agent is instructed to prepare and file at Debtor’s cost and expense,
financing statements in such jurisdictions deemed advisable to the Collateral
Agent, including but not limited to the State of Nevada. The
Financing Statements are deemed to have been filed for the benefit of the
Collateral Agent and Lenders identified on Schedule A hereto.
4.2 Upon the
execution of this Agreement, Debtor shall deliver to Collateral Agent stock
certificates representing all of the shares of outstanding capital stock of the
Guarantors (the "Securities"). All such certificates shall be held by
or on behalf of Collateral Agent pursuant hereto and shall be delivered in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment or undated stock powers executed in blank,
all in form and substance satisfactory to Collateral Agent.
4.3 All other
certificates and instruments constituting Collateral from time to time required
to be pledged to Collateral Agent pursuant to the terms hereof (the "Additional
Collateral") shall be delivered to Collateral Agent promptly upon receipt
thereof by or on behalf of Debtor. All such certificates and
instruments shall be held by or on behalf of Collateral Agent pursuant hereto
and shall be delivered in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment or undated
stock powers executed in blank, all in form and substance satisfactory to
Collateral Agent. If any Collateral consists of uncertificated
securities, unless the immediately following sentence is applicable thereto,
Debtor shall cause Collateral Agent (or its custodian, nominee or other
designee) to become the registered holder thereof, or cause each issuer of such
securities to agree that it will comply with instructions originated by
Collateral Agent with respect to such securities without further consent by
Debtor. If any Collateral consists of security entitlements, Debtor
shall transfer such security entitlements to Collateral Agent (or its custodian,
nominee or other designee) or cause the applicable securities intermediary to
agree that it will comply with entitlement orders by Collateral Agent without
further consent by Debtor.
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4.4 Within five (5) days after the receipt
by a Debtor of any Additional Collateral, a Pledge Amendment, duly executed by
such Debtor, in substantially the form of Annex I hereto (a "Pledge Amendment"),
shall be delivered to Collateral Agent in respect of the Additional Collateral
to be pledged pursuant to this Agreement. Debtor hereby authorizes Collateral
Agent to attach each Pledge Amendment to this Agreement and agrees that all
certificates or instruments listed on any Pledge Amendment delivered to
Collateral Agent shall for all purposes hereunder constitute
Collateral.
4.5
If Debtor shall receive, by virtue of Debtor being or having been an owner of
any Collateral, any (i) stock certificate (including, without limitation, any
certificate representing a stock dividend or distribution in connection with any
increase or reduction of capital, reclassification, merger, consolidation, sale
of assets, combination of shares, stock split, spin-off or split-off),
promissory note or other instrument, (ii) option or right, whether as an
addition to, substitution for, or in exchange for, any Collateral, or otherwise,
(iii) dividends payable in cash (except such dividends permitted to be retained
by Debtor pursuant to Section 5.2 hereof) or in securities or other property or
(iv) dividends or other distributions in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in surplus, Debtor shall receive such stock certificate,
promissory note, instrument, option, right, payment or distribution in trust for
the benefit of Collateral Agent, shall segregate it from Debtor's other property
and shall deliver it forthwith to Collateral Agent, in the exact form received,
with any necessary endorsement and/or appropriate stock powers duly executed in
blank, to be held by Collateral Agent as Collateral and as further collateral
security for the Obligations.
5. Distribution.
5.1 So long as an Event of Default
does not exist, Debtor shall be entitled to exercise all voting power
pertaining to any of the Collateral, provided such exercise is not contrary to
the interests of the Lenders and does not impair the Collateral.
5.2. At any time an Event
of Default exists or has occurred, all rights of Debtor, upon notice given by
Collateral Agent, to exercise the voting power and receive payments, which it
would otherwise be entitled to pursuant to Section 5.1, shall cease and all such
rights shall thereupon become vested in Collateral Agent, which shall thereupon
have the sole right to exercise such voting power and receive such
payments.
5.3 All dividends,
distributions, interest and other payments which are received by Debtor contrary
to the provisions of Section 5.2 shall be received in trust for the benefit of
Collateral Agent as security and Collateral for payment of the Obligations shall
be segregated from other funds of Debtor, and shall be forthwith paid over to
Collateral Agent as Collateral in the exact form received with any necessary
endorsement and/or appropriate stock powers duly executed in blank, to be held
by Collateral Agent as Collateral and as further collateral security for the
Obligations.
6. Further Action By
Debtor; Covenants and
Warranties.
6.1 Except for
Permitted Liens, Collateral Agent at all times shall have a perfected security
interest in the Collateral. Debtor represents that it has and
will continue to have full title to the Collateral free from any liens, leases,
encumbrances, judgments or other claims. The Collateral Agent's
security interest in the Collateral constitutes and will continue to constitute
a first, prior and indefeasible security interest in favor of Collateral
Agent. Debtor will do all acts and things, and will execute and file
all instruments (including, but not limited to, security agreements, financing
statements, continuation statements, etc.) reasonably requested by Collateral
Agent to establish, maintain and continue the perfected security interest of
Collateral Agent in the perfected Collateral, and will promptly on demand, pay
all costs and expenses of filing and recording, including the costs of any
searches reasonably deemed necessary by Collateral Agent from time to time to
establish and determine the validity and the continuing priority of the security
interest of Collateral Agent, and also pay all other claims and charges that, in
the opinion of Collateral Agent, exercised in good faith, are reasonably likely
to materially prejudice, imperil or otherwise affect the Collateral or
Collateral Agent’s or Lenders’ security interests therein.
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6.2 Except in
connection with sales of Collateral, subject to Permitted Liens or other than in
the ordinary course of business, for fair value and in cash, and except for
Collateral which is substituted by assets of identical or greater value (with
the consent of the Collateral Agent) or which is inconsequential in value,
Debtor will not sell, transfer, assign or pledge those items of Collateral (or
allow any such items to be sold, transferred, assigned or pledged), without the
prior written consent of Collateral Agent other than a transfer of the
Collateral to a wholly-owned United States formed and located subsidiary or to
another Debtor on prior notice to Collateral Agent, and provided the Collateral
remains subject to the security interest herein described. Although
Proceeds of Collateral are covered by this Agreement, this shall not be
construed to mean that Collateral Agent consents to any sale of the Collateral,
except as provided herein. Sales of Collateral in the ordinary course
of business shall be free of the security interest of Lenders and Collateral
Agent and Lenders and Collateral Agent shall promptly execute such
documents (including without limitation releases and termination statements) as
may be required by Debtor to evidence or effectuate the same.
6.3 Debtor will, at
all reasonable times during regular business hours and upon reasonable notice,
allow Collateral Agent or its representatives free and complete access to the
Collateral and all of such Debtor's records which in any way relate to the
Collateral, for such inspection and examination as Collateral Agent reasonably
deems necessary.
6.4 Debtor, at its sole cost and expense,
will protect and defend this Security Agreement, all of the rights of Collateral
Agent and Lenders hereunder, and the Collateral against the claims and demands
of all other persons.
6.5 Debtor will promptly notify Collateral
Agent of any levy, distraint or other seizure by legal process or otherwise of
any part of the Collateral, and of any threatened or filed claims or proceedings
that are reasonably likely to affect or impair any of the rights of Collateral
Agent under this Security Agreement in any material respect.
6.6 Debtor, at its
own expense, will obtain and maintain in force insurance policies covering
losses or damage to those items of Collateral which constitute physical personal
property, which insurance shall be of the types customarily insured against by
companies in the same or similar business, similarly situated, in such amounts
(with such deductible amounts) as is customary for such companies under the same
or similar circumstances, similarly situated. Debtor shall make the
Collateral Agent a loss payee thereon to the extent of its interest in the
Collateral. Collateral Agent is hereby irrevocably (until the Obligations are
paid in full) appointed Debtor’s attorney-in-fact to endorse any check or draft
that may be payable to such Debtor so that Collateral Agent may collect the
proceeds payable for any loss under such insurance. The proceeds of
such insurance, less any costs and expenses incurred or paid by Collateral Agent
in the collection thereof, shall be applied either toward the cost of the repair
or replacement of the items damaged or destroyed, or on account of any sums
secured hereby, whether or not then due or payable.
6.7 Collateral Agent
may, at its option, and without any obligation to do so, pay, perform and
discharge any and all amounts, costs, expenses and liabilities herein agreed to
be paid or performed by Debtor upon Debtor’s failure to do so. All amounts
expended by Collateral Agent in so doing shall become part of the Obligations
secured hereby, and shall be immediately due and payable by Debtor to Collateral
Agent upon demand and shall bear interest at the lesser of 15% per annum or the
highest legal amount from the dates of such expenditures until
paid.
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6.8 Upon the request
of Collateral Agent, Debtor will furnish to Collateral Agent within five (5)
business days thereafter, or to any proposed assignee of this Security
Agreement, a written statement in form reasonably satisfactory to Collateral
Agent, duly acknowledged, certifying the amount of the principal and interest
and any other sum then owing under the Obligations, whether to its knowledge any
claims, offsets or defenses exist against the Obligations or against this
Security Agreement, or any of the terms and provisions of any other agreement of
Debtor securing the Obligations. In connection with any assignment by
Collateral Agent of this Security Agreement, Debtor hereby agrees to cause the
insurance policies required hereby to be carried by such Debtor, if any, to be
endorsed in form satisfactory to Collateral Agent or to such assignee, with loss
payable clauses in favor of such assignee, and to cause such endorsements to be
delivered to Collateral Agent within ten (10) calendar days after request
therefor by Collateral Agent.
6.9 Debtor
will, at its own expense, make, execute, endorse, acknowledge, file and/or
deliver to the Collateral Agent from time to time such vouchers, invoices,
schedules, confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other reasonable
assurances or instruments and take further steps relating to the Collateral and
other property or rights covered by the security interest hereby granted, as the
Collateral Agent may reasonably require to perfect its security interest
hereunder.
6.10 Debtor represent and
warrant that they are the true and lawful exclusive owners of the Collateral,
free and clear of any liens and encumbrances.
6.11 Debtor hereby agrees
not to divest itself of any right under the Collateral except as permitted
herein absent prior written approval of the Collateral Agent, except to a
subsidiary organized and located in the United States on prior notice to
Collateral Agent provided the Collateral remains subject to the security
interest herein described.
6.12 Debtor shall cause
each Subsidiary of such Debtor in existence on the date hereof and each
Subsidiary not in existence on the date hereof to execute and deliver to
Collateral Agent promptly and in any event within 10 days after the formation,
acquisition or change in status thereof (A) a guaranty guaranteeing the
Obligations and (B) if requested by Collateral Agent, a security and pledge
agreement substantially in the form of this Agreement together with (x)
certificates evidencing all of the capital stock of each Subsidiary of and any
entity owned by such Subsidiary, (y) undated stock powers executed in blank with
signatures guaranteed, and (z) such opinion of counsel and such approving
certificate of such Subsidiary as Collateral Agent may reasonably request in
respect of complying with any legend on any such certificate or any other matter
relating to such shares and (C) such other agreements, instruments, approvals,
legal opinions or other documents reasonably requested by Collateral Agent in
order to create, perfect, establish the first priority of or otherwise protect
any lien purported to be covered by any such pledge and security agreement or
otherwise to effect the intent that all property and assets of such Subsidiary
shall become Collateral for the Obligations. For purposes of this
Agreement, “Subsidiary” means,
with respect to any entity at any date, any corporation, limited or general
partnership, limited liability company, trust, estate, association, joint
venture or other business entity) of which more than 25% of (A) the
outstanding capital stock having (in the absence of contingencies) ordinary
voting power to elect a majority of the board of directors or other managing
body of such entity, (B) in the case of a partnership or limited liability
company, the interest in the capital or profits of such partnership or limited
liability company or (C) in the case of a trust, estate, association, joint
venture or other entity, the beneficial interest in such trust, estate,
association or other entity business is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such
entity. As of the date of
this Agreement, the
Debtor does not have any Subsidiaries.
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7. Power of
Attorney.
At
any time an Event of Default has occurred and is continuing, Debtor hereby
irrevocably constitutes and appoints the Collateral Agent as the true and lawful
attorney of such Debtor, with full power of substitution, in the place and stead
of such Debtor and in the name of such Debtor or otherwise, at any time or
times, in the discretion of the Collateral Agent, to take any action and to
execute any instrument or document which the Collateral Agent may deem necessary
or advisable to accomplish the purposes of this Agreement. This power
of attorney is coupled with an interest and is irrevocable until the Obligations
are satisfied.
8. Performance By The
Collateral Agent.
If
a Debtor fails to perform any material covenant, agreement, duty or obligation
of such Debtor under this Agreement, the Collateral Agent may, after any
applicable cure period, at any time or times in its discretion, take action to
effect performance of such obligation. All reasonable expenses of the
Collateral Agent incurred in connection with the foregoing authorization shall
be payable by Debtor as provided in Paragraph 12.1 hereof. No
discretionary right, remedy or power granted to the Collateral Agent under any
part of this Agreement shall be deemed to impose any obligation whatsoever on
the Collateral Agent with respect thereto, such rights, remedies and powers
being solely for the protection of the Collateral Agent.
9. Event of
Default.
An
event of default ("Event of Default") shall be deemed to have occurred hereunder
upon the occurrence of any event of default as defined and described in this
Agreement, in the Notes, the Subscription Agreement, and any other agreement to
which Debtor and a Lender are parties. Upon and after any Event
of Default, after the applicable cure period, if any, any or all of the
Obligations shall become immediately due and payable at the option of the
Collateral Agent, for the benefit of the Lenders, and the Collateral Agent may
dispose of Collateral as provided below. A default by Debtor of any
of its material obligations pursuant to this Agreement and any of the
Transaction Documents (as defined in the Subscription Agreement) shall be an
Event of Default hereunder and an “Event of Default” as defined in the Notes,
and Subscription Agreement.
10. Disposition of
Collateral.
Upon and after any Event of Default which is then continuing,
10.1 The Collateral Agent may
exercise its rights with respect to each and every component of the Collateral,
without regard to the existence of any other security or source of payment for
the Obligations. In addition to other rights and remedies provided
for herein or otherwise available to it, the Collateral Agent shall have all of
the rights and remedies of a lender on default under the Uniform Commercial Code
then in effect in the State of New York.
10.2 If any notice to
Debtor of the sale or other disposition of Collateral is required by then
applicable law, five business (5) days prior written notice (which Debtor agree
is reasonable notice within the meaning of Section 9.612(a) of the Uniform
Commercial Code) shall be given to Debtor of the time and place of any sale of
Collateral which Debtor hereby agree may be by private sale. The
rights granted in this Section are in addition to any and all rights available
to Collateral Agent under the Uniform Commercial Code.
10.3 The Collateral Agent
is authorized, at any such sale, if the Collateral Agent deems it advisable to
do so, in order to comply with any applicable securities laws, to restrict the
prospective bidders or purchasers to persons who will represent and agree, among
other things, that they are purchasing the Collateral for their own account for
investment, and not with a view to the distribution or resale thereof, or
otherwise to restrict such sale in such other manner as the Collateral Agent
deems advisable to ensure such compliance. Sales made subject to such
restrictions shall be deemed to have been made in a commercially reasonable
manner.
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10.4 All proceeds received
by the Collateral Agent for the benefit of the Lenders in respect of any sale,
collection or other enforcement or disposition of Collateral, shall be applied
(after deduction of any amounts payable to the Collateral Agent pursuant to
Paragraph 12.1 hereof) against the Obligations pro rata among the Lenders in
proportion to their interests in the Obligations. Upon payment
in full of all Obligations, Debtor shall be entitled to the return of all
Collateral, including cash, which has not been used or applied toward the
payment of Obligations or used or applied to any and all costs or expenses of
the Collateral Agent incurred in connection with the liquidation of the
Collateral (unless another person is legally
entitled thereto). Any assignment of Collateral by the
Collateral Agent to Debtor shall be without representation or warranty of any
nature whatsoever and wholly without recourse. To the extent allowed
by law, each Lender may purchase the Collateral and pay for such purchase by
offsetting up to such Lender’s pro rata portion of the purchase price with sums
owed to such Lender by Debtor arising under the Obligations or any other
source.
11. Waiver of Automatic
Stay. Debtor acknowledges and agrees that should a
proceeding under any bankruptcy or insolvency law be commenced by or against
Debtor, or if any of the Collateral should become the subject of any bankruptcy
or insolvency proceeding, then the Collateral Agent should be entitled to, among
other relief to which the Collateral Agent or Lenders may be entitled under the
Note, Subscription Agreement and any other agreement to which the Debtor,
Lenders or Collateral Agent are parties, (collectively "Loan Documents") and/or
applicable law, an order from the court granting immediate relief from the
automatic stay pursuant to 11 U.S.C. Section 362 to permit the Collateral Agent
to exercise all of its rights and remedies pursuant to the Loan Documents and/or
applicable law. Debtor EXPRESSLY WAIVES THE BENEFIT OF THE AUTOMATIC
STAY IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, Debtor EXPRESSLY
ACKNOWLEDGES AND AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER SECTION
OF THE BANKRUPTCY CODE OR OTHER STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION,
11 U.S.C. SECTION 105) SHALL STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT IN
ANY WAY THE ABILITY OF THE COLLATERAL AGENT TO ENFORCE ANY OF ITS RIGHTS AND
REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. Debtor
hereby consents to any motion for relief from stay which may be filed by the
Collateral Agent in any bankruptcy or insolvency proceeding initiated by or
against Debtor, and further agrees not to file any opposition to any motion for
relief from stay filed by the Collateral Agent. Debtor represents,
acknowledges and agrees that this provision is a specific and material aspect of
this Agreement, and that the Collateral Agent would not agree to the terms of
this Agreement if this waiver were not a part of this
Agreement. Debtor further represents, acknowledges and agrees that
this waiver is knowingly, intelligently and voluntarily made, that neither the
Collateral Agent nor any person acting on behalf of the Collateral Agent has
made any representations to induce this waiver, that Debtor has been represented
(or has had the opportunity to be represented) in the signing of this Agreement
and in the making of this waiver by independent legal counsel selected by Debtor
and that Debtor has had the opportunity to discuss this waiver with
counsel. Debtor further agrees that any bankruptcy or
insolvency proceeding initiated by Debtor will only be brought in the Federal
Court within the Southern District of New York.
12. Miscellaneous.
12.1 Expenses. Debtor
shall pay to the Collateral Agent, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys' fees, legal
expenses and brokers' fees, which the Collateral Agent may incur in connection
with (a) sale, collection or other enforcement or disposition of Collateral; (b)
exercise or enforcement of any the rights, remedies or powers of the Collateral
Agent hereunder or with respect to any or all of the Obligations upon breach or
threatened breach; or (c) failure by Debtor to perform and observe any
agreements of Debtor contained herein which are performed by the Collateral
Agent.
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12.2 Waivers, Amendment and
Remedies. No course of dealing by the Collateral Agent and no
failure by the Collateral Agent to exercise, or delay by the Collateral Agent in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right, remedy or power of
the Collateral Agent. No amendment, modification or waiver of any
provision of this Agreement and no consent to any departure by Debtor therefrom,
shall, in any event, be effective unless contained in a writing signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The
rights, remedies and powers of the Collateral Agent, not only hereunder, but
also under any instruments and agreements evidencing or securing the Obligations
and under applicable law are cumulative, and may be exercised by the Collateral
Agent from time to time in such order as the Collateral Agent may
elect.
12.3 Notices. All
notices or other communications given or made hereunder shall be in writing and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the party
to receive the same at its address set forth below or to such other address as
either party shall hereafter give to the other by notice duly made under this
Section:
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To
Debtor:
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00
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Fax:
(000) 000-0000
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With
a copy by telecopier only to:
|
||
|
Aboudi
& Xxxxxxxxxx
|
||
|
0
Xxxxxx Xx.
|
||
|
Xxxx
Xxxx, Xxxxxx
|
||
|
Fax:
000-0-000-0000
|
||
|
To
Lenders:
|
To
the addresses and telecopier numbers set forth
|
|
|
on
Schedule A
|
||
|
To
the Collateral Agent:
|
Xxxxxxx
X. Xxxxxxx, Esq.
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Fax:
(000) 000-0000
|
||
|
If
to Debtor, Lender or Collateral Agent,
|
||
|
with
a copy by telecopier only to:
|
||
|
Grushko
& Xxxxxxx, P.C.
|
||
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Fax:
(000) 000-0000
|
||
9
Any party
may change its address by written notice in accordance with this
paragraph.
12.4 Term; Binding
Effect. This Agreement shall (a) remain in full force and
effect until payment and satisfaction in full of all of the Obligations; (b) be
binding upon Debtor, and its successors and permitted assigns; and (c) inure to
the benefit of the Collateral Agent, for the benefit of the Lenders and their
respective successors and assigns.
12.5 Captions. The
captions of Paragraphs, Articles and Sections in this Agreement have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
12.6 Governing Law; Venue;
Severability. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard to
conflicts of laws principles that would result in the application of the substantive
laws of another jurisdiction, except to the extent that the perfection of
the security interest granted hereby in respect of any item of Collateral may be
governed by the law of another jurisdiction. Any legal action or
proceeding against a Debtor with respect to this Agreement may be brought in the
courts in the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, Debtor
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Debtor
hereby irrevocably waives any objection which they may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement brought in the aforesaid courts and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. If any provision of this Agreement,
or the application thereof to any person or circumstance, is held invalid, such
invalidity shall not affect any other provisions which can be given effect
without the invalid provision or application, and to this end the provisions
hereof shall be severable and the remaining, valid provisions shall remain of
full force and effect.
12.7 Entire
Agreement. This Agreement contains the entire agreement of the
parties and supersedes all other agreements and understandings, oral or written,
with respect to the matters contained herein.
12.8 Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
13. Intercreditor
Terms. As between the Lenders, any distribution under
paragraph 10.4 shall be made proportionately based upon the remaining principal
amount (plus accrued and unpaid interest) to each as to the total amount then
owed to the Lenders as a whole. The rights of each Lender hereunder
are pari passu
to the rights of the other Lenders hereunder. Any recovery hereunder
shall be shared ratably among the Lenders according to the then remaining
principal amount owed to each (plus accrued and unpaid interest) as to the total
amount then owed to the Lenders as a whole.
14. Termination;
Release. When the Obligations have been indefeasibly paid and
performed in full or all outstanding Convertible Notes have been converted to
common stock pursuant to the terms of the Convertible Notes and the Subscription
Agreements, this Agreement shall terminated, and the Collateral Agent, at the
request and sole expense of the Debtor, will execute and deliver to the Debtor
the proper instruments (including UCC termination statements) acknowledging the
termination of the Security Agreement, and duly assign, transfer and deliver to
the Debtor, without recourse, representation or warranty of any kind whatsoever,
such of the Collateral, including, without limitation, Securities and any
Additional Collateral, as may be in the possession of the Collateral
Agent.
10
15. Collateral Agent.
15.1 Collateral Agent
Powers. The powers conferred on the Collateral Agent hereunder
are solely to protect its interest (on behalf of the Lenders) in the Collateral
and shall not impose any duty on it to exercise any such powers.
15.2 Reasonable
Care. The Collateral Agent is required to exercise reasonable
care in the custody and preservation of any Collateral in its possession;
provided, however, that the Collateral Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral if it
takes such action for that purposes as any owner thereof reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Collateral Agent, to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
11
IN WITNESS WHEREOF, the
undersigned have executed and delivered this Security Agreement, as of the date
first written above.
|
"DEBTOR"
|
"THE
COLLATERAL AGENT"
|
|
|
XXXXXXX
X. XXXXXXX
|
||
|
a
Nevada corporation
|
||
|
By:
_____________________________________
|
_____________________________________
|
|
|
Its:
_____________________________________
|
APPROVED BY “LENDERS”:
|
Name
of Lender (Print):
|
Name
of Lender (Print):
|
|
|
________________________________________
|
______________________________________
|
|
|
By:____________________________________
|
By:____________________________________
|
|
|
Print
Name of Signator:_____________________
|
Print
Name of
Signator:____________________
|
This
Security Agreement may be signed by facsimile signature and
delivered
by confirmed facsimile transmission.
12
