EXHIBIT 9
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (as from time to time amended, modified,
restated, supplemented and in effect, this "Security Agreement") is entered into
as of February 22, 2005 by Xxxxxxx Imaging Corporation, a Delaware corporation
(the "COMPANY"), to and in favor of ComVest Investment Partners II LLC, a
Delaware limited liability company (the "SECURED PARTY"), as contemplated in the
Note and Warrant Purchase Agreement (the "PURCHASE AGREEMENT") between the
Company and the Secured Party dated of even date herewith.
RECITALS:
A. Pursuant to the Purchase Agreement, the Company is issuing to the
Secured Party a Senior Secured Promissory Note dated of even date herewith in
the principal amount of $5,000,000 and may hereafter issue additional senior
secured promissory notes in an aggregate principal amount of up to $5,000,000
(collectively, the "NOTES"). The purchase and sale of the Notes is governed by
the Purchase Agreement. Capitalized terms used herein without definition shall
be defined in the manner set forth in the Purchase Agreement.
B. In order to induce the Secured Party to accept the Notes in
accordance with the Purchase Agreement, and in consideration therefor, the
Company has agreed to grant to the Secured Party a perfected lien on and
security interest in all of the Company's assets and properties, wherever
located, and whether now or hereafter existing, owned or acquired, all pursuant
to the terms of this Security Agreement, in order to secure the due and punctual
payment of (i) the principal and interest (including, without limitation,
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Notes, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, and (ii) all other monetary obligations, including but not limited to
fees, costs, expenses and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including, without limitation, monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding regardless of whether allowed or
allowable in such proceeding), of the Company under the Notes or this Security
Agreement (collectively, the "OBLIGATIONS").
C. It is a condition precedent to the purchase and acceptance of the
Notes by the Secured Party that the Company executes and delivers this Security
Agreement.
NOW, THEREFORE, for and in consideration of the covenants and
provisions set forth herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company agrees as follows:
ARTICLE 1
SECURITY INTEREST
1.1 Grant of Security Interest. As security for the Obligations, the
Company hereby assigns, pledges and grants a continuing and unconditional
security interest to the Secured Party, its successors and assigns, in and to
all of the personal property of the Company, wherever located, and whether now
owned or hereafter acquired, including:
(a) all equipment (including all "Equipment" as such term is
defined in Section 9-102(a)(33) of the Uniform Commercial Code as in effect from
time to time in the State of New York (the "Code")), machinery, vehicles,
fixtures, improvements, supplies, furniture, and other fixed assets, all as now
owned or hereafter acquired by the Company or in which the Company has or
hereafter acquires any interest, and any items substituted therefor as
replacements and any additions or accessions thereto (all of the property
described in this clause (a) being hereinafter collectively referred to as
"Equipment");
(b) all goods (including all "Goods" as defined in Section
9-102(a)(44) of the Code) and all inventory (including all "Inventory" as
defined in Section 9-102(a)(48) of the Code) of the Company, now owned or
hereafter acquired by the Company or in which the Company has or hereafter
acquires any interest, including but not limited to, raw materials, scrap
inventory, work in process, products, packaging materials, finished goods,
documents of title, chattel paper and other instruments covering the same and
all substitutions therefor and additions thereto (all of the property described
in this clause (b) being hereinafter collectively referred to as "Inventory");
(c) all present and future accounts in which the Company has or
hereafter acquires any interest (including all "Accounts" as defined in Section
9-102(a)(2) of the Code), contract rights (including all rights to receive
payments and other rights under all equipment and other leasing contracts) and
rights to payment and rights or accounts receivable evidencing or representing
indebtedness due or to become due the Company on account of goods sold or leased
or services rendered, claims and instruments (including tax refunds, royalties
and all other rights to the payment of money of every nature and description),
including but not limited to, any such right evidenced by chattel paper (whether
in tangible, electronic or other form), and all liens, securities, guaranties,
remedies, security interests and privileges pertaining thereto (all of the
property described in this clause (c) being hereinafter collectively referred to
as "Accounts");
(d) all investment property now owned or hereafter acquired by the
Company (including all "Investment Property" as defined in Section 9-102(a)(49)
of the Code), including, without limitation, all securities (certificated and
uncertificated), securities accounts, securities entitlements, commodity
contracts and commodity accounts, and all dividends and distributions paid or
payable thereon; provided, however, that with respect to securities constituting
capital stock or other equity interests in entities whose jurisdiction of
formation is other than the United States of America or any state thereof, the
Collateral shall not include more than 65% of the outstanding equity securities
of any class of any such issuers;
(e) all general intangibles now owned or hereafter acquired by the
Company or in which the Company has or hereafter acquires any interest
(including all "General Intangibles" as defined in Section 9-102(a)(42) of the
Code), including but not limited to, payment intangibles (including all "Payment
Intangibles" as defined in Section 9-102(a)(61) of the Code), choses in action
and causes of action and all licenses and permits (to the extent the collateral
assignment of such licenses and permits is not prohibited by applicable law),
registrations, franchises, corporate or other business records, systems,
designs, software, manuals, procedures, drawings, goodwill, logos, indicia,
business identifiers, inventions, processes, production methods, proprietary
information, know-how and trade-secrets of the Company, and all Owned
Intellectual Property, trade-names, copyrights, patents, trademarks
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(including service marks) and copyright, patent and trademark applications, all
continuations thereof in whole or in part, and contract rights (including but
not limited to all rights to receive payments and other rights under all
equipment and other leasing contracts, instruments and documents owned or used
by the Company, and any goodwill relating thereto);
(f) all other personal property owned by the Company or in which
the Company has or hereafter acquires any interest, wherever located, and of
whatever kind or nature, tangible or intangible;
(g) all moneys, cash, chattel paper (including all "Chattel Paper"
as defined in Section 9-102(a)(11) of the Code), checks, notes, bills of
exchange, documents of title, money orders, negotiable instruments, commercial
paper, and other securities, letters of credit (including all "Letter-of-Credit
Rights" as defined in Section 9-102(a)(51) of the Code), supporting obligations
(including all "Supporting Obligations" as defined in Section 9-102(a)(77) of
the Code), instruments (including all "Instruments" as defined in Section
9-102(a)(47) of the Code), documents (including all "Documents" as defined in
Section 9-102(a)(30) of the Code) and deposit accounts (including all "Deposit
Accounts" as defined in Section 9-l02(a)(29) of the Code), deposits and credits
from time to time whether or not in the possession of or under the control of
the Secured Party;
(h) all commercial tort claims (as defined in Section 9-102(a)(13)
of the Code);
(i) all books and records relating to any of the foregoing assets
or property; and
(j) any consideration received or receivable when all or any part
of the property referred to in clauses (a) through (i) above is sold,
transferred, exchanged, leased, collected or otherwise disposed of, or any value
received or receivable as a consequence of possession thereof, including but not
limited to, all products, proceeds (including all "Proceeds" as defined in
Section 9-102(a)(64) of the Code), cash, negotiable instruments and other
instruments for the payment of money, chattel paper, security agreements or
other documents, insurance proceeds, condemnation awards or proceeds of other
proceeds now or hereafter owned by the Company or in which the Company has an
interest.
The property set forth in clauses (a) through (j) of the preceding
sentence is referred to herein as the "COLLATERAL."
1.2 Perfection of Security Interests.
(a) The Company hereby authorizes the Secured Party to file a
financing statement or financing statements and other filing or recording
documents or instruments (collectively, the "FINANCING STATEMENTS") describing
the Collateral (which may be described as "all assets" or similar general
description) in any and all jurisdictions and filing offices where the Secured
Party deems such filing to be necessary or appropriate including, without
limitation, the jurisdiction of the debtor's location for purposes of the Code.
For purposes of this Section 1.2(a), the Financing Statements shall be deemed to
include any amendment, modification, assignment,
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continuation statement or other similar instrument consistent with the rights
granted to Secured Party under this Agreement and the Purchase Agreement.
(b) The Company will reasonably cooperate with Secured Party in
obtaining control (including "Control" as contemplated by Section 9-312(b) of
the Code) with respect to Collateral consisting of deposit accounts, investment
property and electronic chattel paper, and will execute and deliver any and all
control agreements reasonably required by the Secured Party in order to effect
and obtain such control. In addition, the Company will (i) notify the Secured
Party regarding the acquisition of any and all Collateral which is subject to or
evidenced by a certificate of title (including, without limitation, vehicles)
and with respect to such Collateral, upon the request of the Secured Party,
cause the certificate of title for such Collateral to include official notation
of the Secured Party's lien and security interest in such Collateral, and (ii)
notify the Secured Party regarding the acquisition of any Collateral as to which
perfection of the Secured Party's security interest cannot be effected by the
filing of a financing statement but can be effected by possession of such
Collateral and with respect to such Collateral, upon the request of the Secured
Party, promptly deliver possession of such Collateral to the Secured Party.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties. The Company represents and
warrants that:
(a) The Company has and shall have good and indefeasible title to
all the Collateral owned by it, wherever and whenever acquired, free and clear
of any lien or encumbrance except (i) to the extent disclosed in the Purchase
Agreement, (ii) liens for taxes, assessments and other governmental charges or
levies (excluding liens imposed pursuant to any of the provisions of ERISA or
Environmental Law) not yet due or as to which the period of grace, if any,
related thereto has not expired or which are being contested in good faith and
by appropriate proceedings with adequate reserves on the books of the Company,
(iii) claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labor, materials, supplies or rentals incurred in the ordinary
course of business which are not overdue for a period of more than thirty (30)
days or which are being contested in good faith and by appropriate proceedings,
(iv) liens consisting of deposits or pledges made in the ordinary course of
business in connection with, or to secure payment of, obligations under workers'
compensation, unemployment insurance or similar legislation, (v) liens securing
purchase money indebtedness or capitalized leases for the acquisition of capital
assets to the extent permitted without violation of the Purchase Agreement,
provided that such liens shall be created substantially simultaneously with the
acquisition or lease of the subject assets, do not at any time encumber any
property or assets other than the assets acquired in such purchase money
financing or capitalized lease, and do not secure any amount exceeding the
original purchase price or lease payment amount of the acquired assets at the
time that such assets were acquired by the Company, and (vi) the liens and
security interests of the Secured Party pursuant to this Security Agreement
(collectively, "PERMITTED LIENS"). Except as disclosed in or permitted without
violation of the Purchase Agreement, the Company has not filed, nor is there on
record, a financing statement under the Code (or similar statement or instrument
of registration under the law of any jurisdiction) covering any Collateral
except for Permitted Liens. No consent of any other person is required
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on the part of the Company for the Company's execution, delivery and performance
of this Security Agreement and the granting of the liens hereunder.
(b) Schedule A hereto lists, as to the Company, (i) the Company's
principal executive office and other place(s) of business, (ii) the address
where the books and records relating to the Collateral are maintained, (iii) any
other location of any Equipment or tangible Collateral, (iv) the location of
leased facilities and name of each lessor/sublessor, (v) the location, account
title and account numbers of all bank accounts maintained by or on behalf of the
Company, (vi) all Owned Intellectual Property of the Company (setting forth,
with respect to all owned patents, trademarks and copyrights or applications
therefor, the name, registered owner, filing date, registration number or serial
number, as applicable), and (vii) all other names by which the Company has been
known or under which the Company or any predecessor has done business within the
past five (5) years, and all entities or businesses acquired by the Company
(whether through stock purchase, merger, consolidation, share exchange,
acquisition of assets or otherwise) within the past five (5) years.
(c) Except as disclosed or permitted without violation of the
Purchase Agreement, the Company has paid or will pay when due all taxes, fees,
assessments and other charges now or hereafter imposed upon the Collateral
except for any tax, fee, assessment or other charge the validity of which is
being contested in good faith by appropriate proceedings and so long as the
Company shall have set aside on its books adequate reserves with respect
thereto.
(d) As a result of the execution and delivery of this Security
Agreement and the filing of any financing statements or other documents
necessary to assure, preserve and perfect the security interest created hereby
to the extent a lien may be perfected by filing a financing statement, the
Secured Party shall have a valid and perfected lien on, and a continuing
security interest in, the Collateral and such lien shall be superior and prior
to all other liens other than the Permitted Liens.
(e) All Accounts represent bona fide transactions completed in
accordance with the terms and provisions contained in the contracts, agreements,
invoices and other documents governing or evidencing the same. As of the date
hereof, there are no setoffs, counterclaims or disputes existing or asserted
with respect to Accounts, subject only to non-material set off, return and
similar rights arising in the ordinary course of business. The Company has not
made any agreement with any account debtor for any deduction therefrom except
non-material set-offs and claims arising in the ordinary course of business. To
the Company's knowledge, at the date hereof, all account debtors have the
capacity to contract and are solvent, and each Account constitutes the legally
valid and binding obligation of the subject account debtor, except as and to the
extent set forth on Schedule B attached hereto. To the Company's knowledge, the
goods giving rise to Accounts are not subject to any lien, claim or encumbrance
except (i) set-off and claims arising in the ordinary course of business, (ii)
liens, claims and encumbrances in favor of the Secured Party, and (iii) as
disclosed or permitted without violation of the Purchase Agreement.
(f) All Inventory is of good and merchantable quality, free from
any material defects. To the Company's knowledge, none of such Inventory is
subject to any licensing, patent, trademark, trade name or copyright with any
person that restricts the Company's ability to
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manufacture and/or sell Inventory. Except as disclosed in Schedule 4.15(c) of
the Purchase Agreement, the completion of the manufacturing process of such
Inventory by a person other than the Company is permitted under each contract to
which the Company is a party or to which the subject Inventory is subject. All
Inventory manufactured by the Company has been and will be manufactured in
compliance in all material respects with the Fair Labor Standards Act and other
applicable law.
(g) None of the Collateral is held by a third party in any
location as assignee, trustee, bailee, consignee or in any similar capacity.
(h) The Company is a Delaware corporation whose legal name is
Xxxxxxx Imaging Corporation, whose federal tax identification number is
00-0000000, and whose Delaware organizational identification number is 2266894.
2.2 Survival. All representations, warranties and agreements of the
Company contained in this Security Agreement shall survive the execution,
delivery and performance of this Security Agreement and shall, except for any
covenants which expressly continue thereafter, continue until the termination of
this Security Agreement pursuant to Section 5.5 hereof.
ARTICLE 3
COVENANTS
3.1 Covenants. The Company hereby covenants and agrees with the
Secured Party that so long as this Security Agreement shall remain in effect,
any Obligations shall remain unpaid or unperformed, or the Post-Closing
Commitment shall not have expired or been terminated, (a) the Company shall
promptly give written notice to the Secured Party of any adverse claim or levy
or attachment, execution or other process against a material portion of the
Collateral; (b) at the Company's own cost and expense, the Company shall take
any and all lawful actions reasonably necessary or desirable to defend the
Collateral against the claims and demands of all persons other than the Secured
Party and persons holding Permitted Liens, and to defend the security interest
of the Secured Party in the Collateral and the priority thereof against any lien
or encumbrance of any nature other than Permitted Liens; (c) the Company shall
keep all tangible Collateral insured with financially sound and reputable
insurers, against loss by fire, explosion, theft, fraud and such other
casualties, with coverages in amounts and with deductibles at least as favorable
as those generally maintained by businesses of similar size, scope and location
engaged in similar activities, and shall maintain liability insurance with
financially sound and reputable companies, with coverages in amounts and with
deductibles at least as favorable as those generally maintained by businesses of
similar size, scope and location engaged in similar activities (all such
policies to name the Secured Party as loss payee and/or additional insured (as
appropriate), and with certificates thereof to be delivered to the Secured Party
at any time and from time to time upon reasonable request, indicating that such
coverages will not be cancelled or modified without thirty (30) days prior
written notice to the Secured Party); (d) the Company shall keep all Equipment
and other tangible Collateral in good order and repair (normal wear and tear
excepted) and promptly notify the Secured Party of any event causing any
material loss, damage or depreciation in value of the Collateral in the
aggregate and of the estimated extent of such loss, damage or depreciation; (e)
at the Secured Party's request, the Company shall xxxx any Collateral that is
chattel paper with a legend showing the Secured
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Party's lien and security interest therein or shall deliver same to the Secured
Party; (f) the Company shall promptly give written notice to the Secured Party
of any change in or addition to the intellectual property rights material to its
business or any change in any of the information set forth on Schedule A hereto,
and update such Schedule A accordingly if so requested by the Secured Party; (g)
the Company shall promptly notify the Secured Party in writing of the
particulars of any and all commercial tort claims held or acquired by the
Company at any time and from time to time; and (h) the Company shall not (i)
amend or terminate any contract or other document or instrument constituting
part of the Collateral, except for transactions in the ordinary course of
business substantially consistent with customary practice, (ii) voluntarily or
involuntarily exchange, lease, sell, transfer or otherwise dispose of any
Collateral other than in the ordinary course of business, with respect to the
routine sale or other disposition of obsolete or worn out Equipment, (iii) make
any compromise, settlement, discharge or adjustment or grant any extension of
time for payment with respect to any Account or any lien, Guaranty or remedy
pertaining thereto, except for transactions in the ordinary course of business,
(iv) except upon thirty (30) days prior written notice to the Secured Party,
change its name, or the location of any Collateral or the establishment or
closing of any bank account, or (v) change the location of its principal
executive office or jurisdiction of incorporation.
3.2 Further Deliveries. The Company hereby covenants and agrees with
the Secured Party that so long as this Security Agreement shall remain in
effect, any Obligations shall remain unpaid or unperformed, or the Post-Closing
Commitment shall not have expired or been terminated, (a) the Company shall, at
any time and from time to time upon request of the Secured Party, execute and
deliver any and all specific collateral assignments which the Secured Party may
reasonably request with respect to Owned Intellectual Property, and the Secured
Party hereby consents to the filing thereof with the United States Patent and
Trademark Office, the United States Copyright Office, and/or any other
governmental agency or office (domestic or foreign) in which such filing may be
appropriate, (b) the Company shall use all reasonable efforts to cause each
depositary bank holding a deposit account of the Company, and each securities
intermediary holding any investment property owned by the Company, to execute
and deliver a control agreement sufficient to provide the Secured Party with
control of such deposit account or investment property, and otherwise in form
and substance reasonably satisfactory to the Secured Party, and the Company
shall itself execute and deliver any and all such control agreements (and in the
event that any such depositary bank or securities intermediary refuses to
execute and deliver such control agreement, the Secured Party may require the
applicable deposit account or investment property to be transferred to another
institution which will execute and deliver such control agreements), (c) the
Company shall, with respect to all letter of credit rights and electronic
chattel paper owned or held by the Company, take such actions and deliver such
agreements as are reasonably requested by the Secured Party to provide the
Secured Party with control thereof, (d) with respect to any Collateral which is
the subject of or evidenced by a certificate of title, the Company shall notify
the Secured Party of the existence of such collateral and upon the Secured
Party's request, cause the Secured Party's security interest to be officially
noted on such certificate of title, (e) upon request by the Secured Party, the
Company shall obtain for the benefit of the Secured Party a landlord waiver or
landlord subordination agreement pursuant to which, among other things, the
landlord of each premises at which any material amount of Collateral is located
agrees to treat all such Collateral as personal property (and not as fixtures)
and agrees to waive or subordinate in favor of the Secured Party any and all
liens and security interests (whether pursuant to a lease agreement, by statute,
or otherwise) which such
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landlord may have for unpaid rent or otherwise, or obtain such landlord's
written consent to a collateral assignment of the subject lease in favor of the
Secured Party, (f) in the event that any of the Collateral is at any time or
from time to time held by any bailee, warehouseman, consignee or other person,
the Company shall notify such person in writing of the Secured Party's security
interest in such Collateral, and shall use commercially reasonable efforts to
obtain such person's written agreement to hold such Collateral for the Secured
Party's account and subject to the Secured Party's instructions and to deliver
to the Secured Party all warehouse receipts, bills of lading or other similar
documents (duly endorsed in favor of the Secured Party) relating to such
Collateral, and (g) the Company shall notify the Secured Party not less than
thirty (30) days prior to acquiring any fee interest in any real property, and
shall execute and deliver to the Secured Party a mortgage or deed of trust on
such real property to secure the Obligations, which shall be senior and in
priority to any other mortgage or deed of trust other than Permitted Liens.
3.3 Intellectual Property.
(a) Except as could not reasonably be expected to have a
Material Adverse Effect, the Company (either itself or through licensees) (i)
will continue to use each registered trademark (owned by the Company) and
trademark for which an application (owned by the Company) is pending, to the
extent reasonably necessary to maintain such trademark in full force free from
any claim of abandonment for non-use, (ii) will maintain products and services
offered under such trademark at a level not less than the quality of such
products and services as of the date hereof, (iii) will not (and will not
knowingly permit any licensee or sublicensee thereof to) do any act or knowingly
omit to do any act whereby such trademark would reasonably be expected to become
invalidated or impaired in any way, (iv) will not do any act, or and knowingly
omit to do any act, whereby any issued patent owned by the Company would
reasonably be expected to become forfeited, abandoned or dedicated to the
public, (v) will not knowingly (and will not knowingly permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby any
registered copyright owned by the Company or copyright for which an application
is pending (owned by the Company) would reasonably be expected to become
invalidated or otherwise impaired, and (vi) will not (either itself or through
licensees) do any act whereby any material portion of the Company's owned
copyrights may fall into the public domain. The foregoing does not obligate the
Company to institute or pursue any reconsideration, lawsuit or appellate
proceeding, or to exhaust all available legal or administrative recourses.
(b) The Company will give prompt written notice to the Secured
Party if the Company knows, or has reason to know, that any application or
registration relating to any material Owned Intellectual Property has become
forfeited, abandoned or dedicated to the public, or of any adverse determination
(including, without limitation, any adverse determination in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding the Company's
ownership of, or the validity of, any material Owned Intellectual Property or
the Company's right to register the same or to own and maintain the same.
(c) Whenever the Company, either by itself or through any agent,
employee, licensee or designee, shall file an application for the registration
of any material Owned
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Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency in any other
country or any political subdivision thereof, the Company shall report such
filing to the Secured Party in writing within five (5) business days after the
last day of the fiscal quarter in which such filing occurs. Upon request of the
Secured Party, the Company shall execute and deliver, and have recorded, any and
all agreements, instruments, documents and papers as the Secured Party may
reasonably request to evidence the Secured Party's security interest in any
material copyright, patent or trademark owned by the Company and the goodwill
and general intangibles of the Company relating thereto or represented thereby.
(d) Except as could not reasonably be expected to have a Material
Adverse Effect, the Company will take all reasonable and necessary steps, at the
Company's sole cost and expense, including, without limitation, in any
proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency in any other country or
any political subdivision thereof, to maintain and pursue each application (and
to obtain the relevant registration) and to maintain each registration of the
material Owned Intellectual Property, including, without limitation, filing of
applications for renewal, affidavits of use and affidavits of incontestability.
The foregoing does not obligate the Company to institute or pursue any
reconsideration, lawsuit or appellate proceeding, or to fully exhaust all
available legal or administrative recourses.
(e) In the event that any material Owned Intellectual Property
owned by the Company is infringed, misappropriated or diluted by a third party,
the Company shall (i) at its sole cost and expense, take such actions as the
Secured Party shall reasonably request and which in any event, the Company shall
reasonably deem appropriate under the circumstances to protect such Owned
Intellectual Property, and (ii) if such Owned Intellectual Property is of
material economic value, promptly notify the Secured Party after the Company
learns of such infringement, misappropriation or dilution.
ARTICLE 4
REMEDIAL MATTERS
4.1 Event of Default. An "Event of Default"shall exist hereunder
(a) if an Event of Default shall occur under any of the Notes, or (b) if the
Company shall breach in any material respect any agreement contained herein or
otherwise default in any material respect in the observance or performance of
any of the covenants, terms, conditions or agreements on the part of the Company
contained in this Security Agreement and such non-observance or non-performance
continues for a period of thirty (30) days after the occurrence thereof.
4.2 Collections. Upon the occurrence and during the continuance of an
Event of Default, the Secured Party may, in its sole discretion, in its name or
in the name of the Company, or otherwise: (a) communicate with the account
debtors of any and all Accounts, and require the Company to notify such account
debtors and any and all parties to any contracts included in the Collateral,
notifying such account debtors and parties to contracts that the subject
Accounts and contracts have been assigned to the Secured Party; (b) demand, xxx
for, collect or receive any money or property at any time payable or receivable
on account of or in exchange for, or make any compromise or settlement deemed
desirable with respect to any of the Collateral, but shall be
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under no obligation to do so; and/or (c) extend the time of payment, arrange for
payment in installments, or otherwise modify the term of, or release, any of the
Collateral, without thereby incurring responsibility to, or discharging or
otherwise affecting any liability of, the Company, other than to discharge the
Company in so doing with respect to liabilities of the Company to the extent
that the liabilities are paid or repaid. After the occurrence and during the
continuance of an Event of Default, any money, checks, notes, bills, drafts, or
commercial paper received by the Company shall be held in trust for the Secured
Party and shall be promptly (and in any event within five (5) business days
after receipt by the Company) turned over to the Secured Party as its interest
shall appear. Upon the occurrence and during the continuance of an Event of
Default, the Secured Party may make such payments and take such actions as the
Secured Party deems necessary to protect its security interest in the Collateral
or the value thereof, and the Secured Party is hereby unconditionally and
irrevocably authorized (without limiting the general nature of the authority
hereinabove conferred) to pay, purchase, contest or compromise any liens which
in the judgment of the Secured Party appear to be equal to, prior to or superior
to its security interest in the Collateral and any liens not expressly permitted
by this Security Agreement.
4.3 Possession; Sale of Collateral.
(a) Upon the occurrence and during the continuance of an Event
of Default, the Secured Party may: (i) require the Company to assemble the
tangible assets that comprise part of the Collateral and make them available to
the Secured Party at any place or places reasonably designated by the Secured
Party; (ii) to the extent permitted by applicable law, with or without notice or
demand for performance and without liability for trespass, enter any premises
where the Collateral may be located and peaceably take possession of the same,
and may demand and receive such possession from any person who has possession
thereof, and may take such measures as it may deem necessary or proper for the
care or protection thereof (including, but not limited to, the right to remove
all or any portion of the Collateral); and (iii) with or without taking such
possession may sell or cause to be sold, in one or more sales or parcels, for
cash, on credit or for future delivery, without assumption of any credit risk,
all or any portion of the Collateral, at public or private sale or at any
broker's board or any securities exchange, without demand of performance or
notice of intention to sell or of time or place of sale, except ten (10) days'
written notice to the Company of the time and place of such sale or sales (and
such other notices as may be required by applicable statute, if any, and which
cannot be waived), which the Company hereby expressly acknowledges is
commercially reasonable. The Secured Party shall have no obligation to clean-up
or otherwise prepare any Collateral for sale. The Collateral may be sold or
disposed of for cash, upon credit or for future delivery as the Secured Party
shall deem appropriate. Each such purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on the part of the
Company. At any such sale, the Collateral, or portion thereof, to be sold may be
sold in one lot as an entirety or in separate parcels, as the Secured Party may
determine. The Secured Party shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Secured Party may,
without notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. The Secured Party may comply with
any applicable state or federal law requirements in connection with a
disposition of the Collateral and compliance will not be considered adversely to
affect the
10
commercial reasonableness of any disposition of the Collateral. In case any sale
of all or any part of the Collateral is made on credit or for future delivery,
the Collateral so sold may be retained by the Secured Party until the sale price
is paid by the purchaser or purchasers thereof. The Secured Party shall not
incur any liability for the failure to collect or realize upon any or all of the
Collateral or for any delay in doing so and, in case of any such failure, shall
not be under any obligation to take any action with respect thereto; provided,
such Collateral may be sold again upon like notice. If any Collateral is sold
upon credit, the Company will be credited only with payments actually made by
the purchaser, received by the Secured Party and applied to the Obligations in
accordance with Section 4.4. In the event the purchasers fail to pay for the
Collateral, the Secured Party may resell the Collateral. At any public sale made
pursuant to this Section 4.3, the Secured Party may bid for or purchase, free
from any right of redemption, stay or appraisal and all rights of marshalling,
the Collateral and any other security for the Obligations (all such rights being
also hereby waived and released by the Company to the fullest extent permitted
by law), and may make payment on account thereof by using any claim then due and
payable to the Secured Party from the Company as a credit against the purchase
price, and the Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to the
Company therefor. As an alternative to exercising the power of sale herein
conferred upon it, the Secured Party may proceed by a suit or suits at law or in
equity to foreclose this Security Agreement and to sell the Collateral or any
portion thereof pursuant to a judgment or decree of a court or courts having
competent jurisdiction or pursuant to a proceeding by a court-appointed
receiver. In any action hereunder, the Secured Party shall be entitled to the
appointment of a receiver without notice, to peaceably take possession of all or
any portion of the Collateral and to exercise such powers as the court shall
confer upon the receiver. Notwithstanding the foregoing, if an Event of Default
shall occur and be continuing, the Secured Party shall be entitled, in its
discretion, to apply, upon written notice to the Company, any cash or cash items
constituting Collateral in its possession to payment of the Obligations and to
set off the Obligations against any and all liabilities or obligations owed by
the Secured Party to the Company.
(b) If an Event of Default shall occur and be continuing, the
Secured Party shall, in addition to exercising any and all rights and remedies
afforded to it hereunder, have all the rights and remedies of a secured party
under all applicable provisions of law, including but not limited to the Code.
(c) If an Event of Default shall occur and be continuing, the
Secured Party shall be entitled (but shall not be required) to (i) operate any
or all of the Collateral, (ii) perform any and all obligations of the Company
under any contract included within the Collateral and exercise all rights of the
Company thereunder, (ii) do all other acts which the Secured Party may deem
reasonably necessary or appropriate to protect its security interest hereunder,
and (iv) sell, assign, subcontract or otherwise transfer any such contract
(subject, however, to the prior approval of each other party to such contract to
the extent required thereunder). The Company agrees that notwithstanding
anything to the contrary contained in this Security Agreement, the Company shall
remain liable under each contract or other agreement giving rise to Accounts and
general intangibles and all other contracts or agreements constituting part of
the Collateral and the Secured Party shall not have any obligation or liability
in respect thereof.
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(d) After the occurrence and during the continuance of an Event of
Default, upon the Secured Party's request, the Company shall deliver to the
Secured Party all original and other documents, evidencing and relating to the
sale and delivery of Inventory or Accounts, including but not limited to, all
original orders, invoices and shipping receipts. The Company shall also furnish
to the Secured Party, reasonably promptly upon the request of the Secured Party,
such reports, reconciliations and aging balances regarding Accounts as the
Secured Party may reasonably request from time to time.
(e) After the occurrence and during the continuance of an Event of
Default, the Secured Party shall have the right (i) to receive any and all cash
dividends, payments or distributions paid or payable in respect of any
investment property included in the Collateral, (ii) to cause such investment
property to be registered in the name of the Secured Party or its nominee, and
(iii) to exercise all voting and other rights pertaining to such investment
property and any and all rights of conversion, exchange and subscription and any
other rights, privileges or options pertaining to such investment property as if
the Secured Party were the absolute owner thereof. The Company hereby authorizes
each issuer of investment property included in the Collateral to rely, without
investigation, on any notice given by the Secured Party which states the
existence of an Event of Default and requires compliance with instructions of
the Secured Party with respect to such investment property, without requirement
of any other or further instructions from the Company; and the Company agrees
that each such issuer shall be fully protected in so complying with any such
notice and instruction.
4.4 Application of Proceeds. Unless the Secured Party otherwise
directs, the proceeds of any sale of Collateral pursuant to this Security
Agreement or otherwise shall be applied after receipt by the Secured Party as
follows:
(a) First, to the payment of all costs, fees and expenses of the
Secured Party and its agents, representatives and attorneys incurred in
connection with such sale or with the retaking, holding, handling, preparing for
sale (or other disposition) of the Collateral or otherwise in connection with
any of the Notes, this Security Agreement or any of the Obligations, including,
but not limited to, the reasonable fees and expenses of the Secured Party's
agents and attorneys and court costs (whether at trial, appellate or
administrative levels), if any, incurred by the Secured Party in so doing;
(b) Second, to the payment of the outstanding principal balance,
accrued interest, fees and other amounts payable on the Obligations in such
order as the Secured Party may determine; and
(c) Third, to the Company or to such other Person as a court may
direct.
4.5 Authority of Secured Party. The Secured Party shall have and be
entitled to exercise all such powers hereunder as are specifically delegated to
the Secured Party by the terms hereof, together with such powers as are
reasonably incidental thereto. The Secured Party may execute any of its duties
hereunder by or through its agents or employees and shall be entitled to retain
counsel and to act in reliance upon the advice of such counsel concerning all
matters pertaining to its duties hereunder.
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4.6 Certain Waivers; Company Not Discharged. The Company expressly and
irrevocably waives (to the extent permitted by applicable law) presentment,
demand for payment and protest of nonpayment in respect of its Obligations under
this Security Agreement. The obligations and duties of the Company hereunder are
irrevocable, absolute, and unconditional and shall not be discharged, impaired
or otherwise affected by (a) the failure of the Secured Party to assert any
claim or demand or to enforce any right or remedy against the Company or any
grantee or any Collateral under the provisions of this Security Agreement or any
waiver, consent, extension, indulgence or other action or inaction in respect
thereof, (b) any extension or renewal of any part of the Obligations, (c) the
release of any security interests in any part of the Collateral or the release,
sale or exchange of or failure to foreclose against any security held by or for
the benefit of the Secured Party for payment or performance of the Obligations,
(d) the bankruptcy, insolvency or reorganization of the Company or any grantee
or any other Persons, or (e) any change, restructuring or termination of the
corporate structure or existence of the Company or any grantee or any
restructuring, refinancing, subordination or other change or variation in the
terms of all or any portion of the Obligations.
4.7 Transfer of Security Interest. Subject to those restrictions
imposed under the Purchase Agreement and the Notes with respect to any transfer
or assignment of the Notes, the Secured Party may transfer to any other Person
all or any part of the liens and security interests granted hereby, and all or
any part of the Collateral which may be in the Secured Party's possession. Upon
such transfer, the transferee shall be vested with all the rights and powers of
the Secured Party hereunder with respect to such of the Collateral as is so
transferred, but, with respect to any of the Collateral not so transferred, the
Secured Party shall retain all of its rights and powers (whether given to it in
this Security Agreement, or otherwise).
ARTICLE 5
MISCELLANEOUS
5.1 Further Assurances. The Company agrees, at its expense, to do such
further things, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the Secured
Party may from time to time reasonably request for the better preservation and
perfection of the security interests and the rights and remedies created hereby,
including but not limited to the execution and delivery of such schedules of
Collateral and additional assignments, agreements and instruments, the payment
of any fees and taxes required in connection with the execution and delivery of
this Security Agreement, the granting and maintenance of the security interests
created hereby and the execution, filing and recordation of any financing
statements (including fixture filings) or other documents as the Secured Party
may deem reasonably necessary or desirable for the perfection of the security
interests granted hereunder. If any amount payable under or in connection with
any of the Collateral shall be or become evidenced by any promissory note or
other instrument, such note or instrument shall be immediately pledged and
delivered to the Secured Party, duly endorsed in a manner satisfactory to the
Secured Party. If any Collateral requires possession thereof to perfect the
Secured Party's security interest hereunder, such Collateral shall be promptly
delivered to the Secured Party or its agent. If at any time the Company shall
take and perfect a security interest in any property to secure payment and
performance of an Account, the Company, upon the request of the Secured Party,
shall promptly assign such security interest to the Secured Party. The Company
agrees that, after the occurrence and during the continuance of
13
an Event of Default, it shall upon request of the Secured Party, take any and
all actions, to the extent permitted by applicable law, at its own expense, to
obtain the approval of any governmental authority for any action or transaction
contemplated by this Security Agreement that is then required by law, and
specifically, without limitation, upon request of the Secured Party, to prepare,
sign and file with any governmental authority the Company's portion of any
application or applications for consent to the assignment of licenses held by
the Company, or for consent to the possession and sale of any of the Collateral
by or on behalf of the Secured Party. The Company shall at all times, at its own
expense and cost, keep accurate and complete records with respect to the
Collateral, including but not limited to a record of all payments and proceeds
received in connection therewith or as a result of the sale thereof and of all
credits granted, and agrees that the Secured Party or its representatives shall
have the right at any reasonable time and from time to time to call at the
Company's place or places of business to inspect the Collateral and to examine
or cause to be examined all of the books, records, journals and other data
relating to the Collateral and to make extracts therefrom or copies thereof as
are reasonably requested.
5.2 Effectiveness. This Security Agreement shall take effect
immediately upon execution and delivery by the Company.
5.3 Indemnity; Reimbursement of Secured Party; Deficiency. In
connection with the administration and enforcement or exercise of any right or
remedy granted to the Secured Party hereunder or under any other security
documents, the Company shall, subject to the limitations set forth hereafter,
(a) indemnify, defend and hold harmless the Secured Party from and against any
and all claims, demands, losses, judgments and liabilities (including but not
limited to liabilities for taxes and penalties) of whatever nature, incurred by
or assessed against the Secured Party in connection with such administration,
enforcement or exercise (including in connection with any workout,
restructuring, bankruptcy or any similar proceeding), and (b) pay or reimburse
the Secured Party for all reasonable costs and expenses, including but not
limited to the reasonable fees and disbursements of attorneys, incurred by or
assessed against the Secured Party in connection with such administration,
enforcement or exercise (including in connection with any workout,
restructuring, bankruptcy or any similar proceeding), but not including any
costs or expenses related to the negotiation, drafting or execution of this
Security Agreement or related documents (except to the extent provided in
Article 8 of the Purchase Agreement). The foregoing indemnity agreement includes
all reasonable costs incurred by the Secured Party in connection with any
litigation relating to the Collateral whether or not the Secured Party shall be
a party to such litigation, including but not limited to the reasonable fees and
disbursements of attorneys for the Secured Party, and any out-of-pocket costs
incurred by the Secured Party in appearing as a witness or in otherwise
complying with legal process served upon it. The obligations of the Company in
this Section 5.3 shall not apply to any claims or losses which are found by a
court of competent jurisdiction to have been proximately and primarily caused by
the gross negligence or willful misconduct of the Secured Party. All indemnities
contained in this Section 5.3 and elsewhere in this Security Agreement shall
survive the expiration or earlier termination of this Security Agreement. After
application of the proceeds by the Secured Party pursuant to Section 4.4 hereof,
the Company shall remain liable to the Secured Party for any deficiency. The
provisions of this Section 5.3 shall survive any termination of this Security
Agreement and release of liens hereunder.
14
5.4 Continuing Lien. It is the intent of the parties hereto that (a)
this Security Agreement shall constitute a continuing agreement as to any and
all future, as well as existing transactions, between the Company and the
Secured Party under or in connection with the Notes, the Purchase Agreement and
the other Transaction Documents, and (b) the security interest provided for
herein shall attach to after-acquired as well as existing Collateral.
5.5 Release. Upon payment in full of the Obligations and expiration or
termination of the Post-Closing Commitment, the Secured Party shall reassign,
redeliver and release (or cause to be so reassigned, redelivered and released),
without recourse upon or warranty by the Secured Party, and at the sole expense
of the Company, to the Company, against receipt therefor, such of the Collateral
(if any) as shall not have been sold or otherwise applied by the Secured Party
pursuant to the terms hereof and not theretofore reassigned, redelivered and
released to the Company, together with appropriate instruments of reassignment
and release.
5.6 Notice. Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be effective upon
personal delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with all charges prepaid or billed
to the account of the sender and addressed to each of the other parties
thereunto entitled at the following addresses, or at such other addresses as a
party may designate by five days advance written notice to each of the other
parties hereto.
Company: Xxxxxxx Imaging Corporation
00000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
ATTENTION: Xxxxxx Ravine
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxx, XX
Xxxxx Xxxxxx & Xxxxxx LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Secured Party: ComVest Investment Partners II LLC
Xxx Xxxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
ATTENTION: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
E-mail: xxxxx@xxxxxxx.xxx
15
with a copy to: Xxxxxxxxx Traung, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxx Annex and
Xxxxxxx X. Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
5.7 Successors and Assigns. This Security Agreement shall be binding
upon and inure solely to the benefit of each party hereto and their successors
and assigns, and nothing in this Security Agreement, express or implied, is
intended to or shall confer upon any other person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement. Neither the
Company nor the Secured Party shall assign this Security Agreement or any rights
or obligations hereunder without the prior written consent of the other.
Notwithstanding the foregoing, the Secured Party may assign its rights
hereunder, subject to Section 4.7 above.
5.8 Governing Law; Jurisdiction; Waiver of Jury Trial. The provisions
of this Security Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to any choice of law or
conflict of law rules or provisions. The Company hereby irrevocably consents to
the jurisdiction of all courts (state and federal) sitting in the State of New
York in connection with any claim, action or proceeding relating to or for
enforcement of this Security Agreement, and hereby waives any defense of
inconvenient forum or other such claim or defense in respect of the lodging of
any such claim, action or proceeding in any such court. THE COMPANY HEREBY
IRREVOCABLY WANES ALL RIGHT TO TRIAL BY JURY IN ANY CLAIM, ACTION OR PROCEEDING
RELATING TO THIS SECURITY AGREEMENT.
5.9 Waivers. No failure or delay of the Secured Party in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
future exercise thereof or the exercise of any other right or power. The rights
and remedies of the Secured Party hereunder are cumulative, may be exercised
singly or concurrently, and are not exclusive of any rights or remedies which it
would otherwise have. No course of conduct or course of dealing, or any delay,
indulgence or other act or omission of the Secured Party, shall affect or
impair, or constitute a waiver of, any of the Secured Party's rights or remedies
hereunder, except to the extent set forth in a written agreement as provided in
Section 5.10. No waiver of any provision of this Security Agreement or consent
to any departure by the Company therefrom shall in any event be effective unless
the same shall be evidenced as provided in Section 5.10, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
5.10 Amendments. Neither this Security Agreement nor any provision
hereof may be amended or modified, and no required performance hereunder may be
waived, except pursuant to an agreement or agreements in writing signed by the
party to be charged therewith.
16
5.11 Severability. In the event any one or more of the provisions
contained in this Security Agreement shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
provision shall be limited in scope or effect to the extent necessary so as to
permit such provision to be enforceable to the fullest extent permitted by
applicable law, and the validity, legality and enforceability of the remaining
provisions contained herein or therein shall not in any way be affected or
impaired thereby.
5.12 Counterparts. This Security Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one contract, and shall become
effective when copies hereof which, when taken together, bear the signatures of
each of the parties hereto shall be delivered or mailed to the Secured Party.
5.13 Headings. Article and Section headings used herein are for
convenience of reference only and are not to affect the construction of, or to
be taken into consideration in interpreting, this Security Agreement.
5.14 Interpretation. In the event of any express conflict between this
Security Agreement and the Purchase Agreement, the terms of the Purchase
Agreement shall control; provided, that the imposition of any greater or more
specific standard of performance or obligation in this Security Agreement shall
not constitute a conflict with the Purchase Agreement.
[signatures on following pages]
17
IN WITNESS WHEREOF, this Security Agreement has been duly executed by
each of the undersigned as of the date first set forth above.
COMPANY:
XXXXXXX IMAGING CORPORATION
By: /s/
---------------------------------------------
Name: Xxxxxx Ravine
Title: President and Chief Executive Officer
COMVEST INVESTMENT PARTNERS II LLC
By: /s/
---------------------------------------------
Name:
Title:
SCHEDULE A
Location of Asset and Records
SCHEDULE B
