SECURITY AGREEMENT
Exhibit
4.19
This
SECURITY AGREEMENT dated as of January 15, 2010 (the "Security Agreement"), is
executed by the Law Offices of Xxxxx X. Xxxxx, P.A., a professional association
licensed to practice law in the State of Florida (“DJS” or “Lender”),
Professional Title and Abstract Company of Florida, Inc, a corporation organized
under the laws of the State of Florida (“PTA”), Default Servicing, Inc., a
corporation organized under the laws of the State of Florida (“DSI,” and
collectively with DJS and PTA are referred to herein as the “Secured Parties”)
and DJS Processing, LLC, a limited liability company organized under the laws of
the State of Delaware (“Guarantor”), which has its chief executive office
located at 000 Xxxxx Xxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000. The
Guarantor and Lender are referred to from time to time in this Security
Agreement individually as a “Party” and together as the “Parties.”
R E C I T
A L S:
A. In
connection with the Master Acquisition Agreement, dated December 10, 2009 among
Chardan 2008 China Acquisition Corp., a corporation organized under the laws of
the British Virgin Islands (“Chardan”), DAL Group, LLC, a limited liability
company organized under the laws of the state of Delaware (“DAL” or “Borrower”),
the Secured Parties, Xxxxx X. Xxxxx (“Xxxxx”), FlatWorld DAL LLC, a limited
liability company organized under the laws of the State of Delaware
(“FlatWorld”), Fortuna Capital Partners LP, a limited partnership organized
under the laws of the State of Delaware, Xxx X. Xxxxx, Xxxxxxx X. Xxxxxxx, DJS
Processing, LLC, a limited liability company organized under the laws of the
State of Delaware (“DJS LLC”), Professional Title and Abstract Company of
Florida, LLC, a limited liability company organized under the laws of the State
of Delaware (“PTA LLC”), and Default Servicing, LLC, a limited liability company
organized under the laws of Delaware (“DSI LLC”) (the “Acquisition Agreement”),
DAL has executed the Term Note.
B. Pursuant
to the terms of the Acquisition Agreement, DAL has also agreed to pay to DJS,
PTA and DSI the Post-Closing Cash (as defined in the Acquisition
Agreement). To secure Borrower’s payment of the Obligations, DAL has
agreed to grant to DJS (as Lender and Secured Party), PTA and DSI a security
interest in and to DAL’s collateral, including a pledge of its membership
interest in each of Guarantor, DSI LLC and PTA LLC as set forth in the Loan,
Security and Pledge Agreement dated as of the date of this Security Agreement
among DAL and the Secured Parties (the “Loan Agreement”).
C. As
additional security for the Obligations, the Guarantor has executed a Guaranty,
dated as of the date of this Security Agreement, (the “Guaranty”) in favor of
DJS, PTA and DSI. To secure the Guaranteed Obligations, the Guarantor
has agreed to grant DJS, PTA and DSI a security interest in all of its assets
pursuant to this Security Agreement.
D. DAL,
DJS, PTA, DSI and the Guarantor are each parties to that certain subordination
and intercreditor agreement in favor of the holders of Senior Debt, dated as of
the same date of this Security Agreement.
NOW
THEREFORE, in consideration of the premises, and the mutual covenants and
agreements set forth herein, the Parties agree as follows:
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A G R E E
M E N T S:
Section
1 DEFINITIONS.
1.1 Defined
Terms. For the purposes of this Security Agreement, the
following capitalized words and phrases shall have the meanings set forth
below.
"Affiliate" of any
person or entity shall mean (a) any other person or entity which, directly or
indirectly, controls or is controlled by or is under common control with such
person or entity or (b) any officer or director of such entity. A
person or entity shall be deemed to be "controlled by" any other person or
entity if such person or entity possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of such person or
entity whether by contract, ownership of voting securities, membership interests
or otherwise.
"Bankruptcy Code"
shall mean the United States Bankruptcy Code, as now existing or hereafter
amended.
"Business Day" shall
mean any day other than a Saturday, Sunday or a legal holiday on which Lenders
are authorized or required to be closed for the conduct of commercial banking
business in Plantation, Florida.
"Collateral" shall
have the meaning set forth in Section 2.1 hereof.
"Event of Default"
shall have the meaning set forth in the Loan Agreement.
“Guaranteed
Obligations” has the meaning set forth in the Guaranty.
"Guaranty" shall have
the meaning given to it in the Recitals.
"Intellectual
Property" shall mean the collective reference to all rights, priorities
and privileges relating to intellectual property, whether arising under United
States, multinational or foreign laws or otherwise, including copyrights,
patents, service marks and trademarks, and all registrations and applications
for registration therefor and all licensees thereof, trade names, domain names,
technology, know-how and processes, and all rights to xxx at law or in equity
for any infringement or other impairment thereof, including the right to receive
all proceeds and damages therefrom.
“Loan Agreement” shall
have the meaning given to it in the Recitals.
"Loan Documents" shall
mean the Term Note, the Loan Agreement (but only the provisions that relate to
the Term Note Obligations), this Security Agreement and each Guaranty, as each
may be amended, restated, supplemented or modified from time to
time.
“Membership Interest Purchase
Agreement” shall mean that certain Contribution and Membership Interest
Purchase Agreement dated January 15, 2010 by and among Chardan, Borrower,
Lender, Xxxxx X. Xxxxx, PTA, DSI, FlatWorld DAL LLC, a limited liability company
organized under the laws of the State of Delaware, Fortuna Capital Partners LP,
a limited partnership organized under the laws of the State of Delaware, Xxx X.
Xxxxx, Xxxxxxx X. Xxxxxxx, Guarantor, PTA LLC, and DSI LLC.
"Obligations" shall
mean, collectively, the Term Note Obligations and the Post-Closing Cash
Obligations.
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"Obligor" shall mean
the Borrower, any Guarantor, accommodation endorser, third party pledgor, or any
other party liable with respect to the Obligations.
“Operating Agreement”
shall mean the Amended and Restated Operating Agreement of DAL Group, LLC, dated
as of the date of this Security Agreement.
“Person” shall mean
any natural person, partnership, limited liability company, corporation, trust,
joint venture, joint stock company, association, unincorporated organization,
government or agency or political subdivision thereof, or other entity, whether
acting in an individual, fiduciary or other capacity.
“Post-Closing Cash
Documents” shall mean the Membership Interest Purchase Agreement, this
Security Agreement, the Loan Agreement and each Guaranty, as each may be
amended, restated, supplemented or modified from time to time, but only the
provisions of each such document that relates to the Post-Closing Cash
Obligations.
“Post-Closing Cash
Obligations” shall have the meaning set forth in the Loan
Agreement.
“Secured Party
Representative” has the meaning set forth in Section 6.14.
“Security Agreement Event of
Default” shall have the meaning set forth in Section 4.
“Security Interest”
shall have the meaning set forth in Section 2.1.
“Senior Debt” means
the term loan granted by the lenders party to that certain Senior Loan, Security
and Pledge Agreement to Borrower on the date of this Security Agreement, in the
principal amount of $15,588,735.79
“Xxxxx NDA” means that
certain Xxxxx Confidentiality and Noncompetition Agreement, dated as of the date
of this Agreement, among Chardan, Borrower, the Guarantor, PTA LLC and DSI
LLC.
“Term Note” shall have
the meaning set forth in the Loan Agreement.
“Term Note
Obligations” shall have the meaning set forth in the Loan
Agreement.
"UCC" shall mean the
Uniform Commercial Code in effect in the State of Florida from time to
time.
“Voidable Transfer”
shall have the meaning set forth in Section 6.3 hereof.
1.2 Other Terms Defined in
UCC. All other capitalized words and phrases used herein and
not otherwise specifically defined herein shall have the respective meanings
assigned to such terms in the UCC, to the extent the same are used or defined
therein.
1.3 Other Interpretive
Provisions.
(a) The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms. Whenever the context so requires, the
neuter gender includes the masculine and feminine, the single number includes
the plural, and vice versa.
(b) Section
and Schedule references are to this Security Agreement unless otherwise
specified. The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Security Agreement shall refer to this Security
Agreement as a whole and not to any particular provision of this Security
Agreement
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(c) The term
"including" is not limiting, and means "including, without
limitation".
(d) In the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including"; the words "to" and "until" each mean
"to but excluding", and the word "through" means "to and
including."
(e) Unless
otherwise expressly provided herein, (i) references to agreements
(including this Security Agreement and the other Loan Documents and Post-Closing
Cash Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, supplements and other modifications
thereto, but only to the extent such amendments, restatements, supplements and
other modifications are not prohibited by the terms of any Loan Document or
Post-Closing Cash Document, and (ii) references to any statute or
regulation shall be construed as including all statutory and regulatory
provisions amending, replacing, supplementing or interpreting such statute or
regulation.
(f) To the
extent any of the provisions of the other Loan Documents or Post-Closing Cash
Documents are inconsistent with the terms of this Security Agreement, the
provisions of this Security Agreement shall govern.
(g) This
Security Agreement, the other Loan Documents and the Post-Closing Cash Documents
may use several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are cumulative and each shall be performed in accordance with its
terms.
Section
2 SECURITY FOR THE
OBLIGATIONS.
2.1 Security for Guaranteed
Obligations. As security for the payment and performance of
the Guaranteed Obligations, the Guarantor hereby assigns, transfers, delivers
and grants to the Lender and the Secured Parties, a continuing and unconditional
security interest (the “Security Interest”) in and to any and all personal
property of the Guarantor, of any kind or description, tangible or intangible,
wherever located and whether now existing or hereafter arising, created or
acquired, including the following (all of which property, along with the
products and proceeds therefrom, are individually and collectively referred to
as the “Collateral”):
(a) all
property of, or for the account of, the Guarantor now or hereafter coming into
the possession, control or custody of, or in transit to, the Lender, a Secured
Party or any agent or bailee for the Lender or a Secured Party or any parent,
affiliate or subsidiary of the Lender or a Secured Party or any participant with
the Lender or a Secured Party (whether for safekeeping, deposit, collection,
custody, pledge, transmission or otherwise), including all earnings, dividends,
interest, or other rights in connection therewith and the products and proceeds
therefrom, including the proceeds of insurance thereon; and
(b) the
additional property of Guarantor, whether now existing or hereafter arising or
acquired, and wherever now or hereafter located, together with all additions and
accessions thereto, substitutions, betterments and replacements therefor,
products and Proceeds therefrom, and all of the Guarantor's books and records
and recorded data relating thereto (regardless of the medium of recording or
storage), together with all of the Guarantor's right, title and interest in and
to all computer software required to utilize, create, maintain and process any
such records or data on electronic media, identified and set forth as
follows:
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(i) All
Accounts, including but not limited to billed and unbilled accounts receivable,
and all Goods whose sale, lease or other disposition by the Guarantor has given
rise to Accounts and have been returned to, or repossessed or stopped in transit
by, the Guarantor, or rejected or refused by an account borrower;
(ii) All
Inventory, including raw materials, work-in-process and finished
goods;
(iii) All Goods
(other than Inventory), including embedded software, Equipment, vehicles,
furniture and Fixtures;
(iv) All
Software and computer programs;
(v) All
Securities, investment property, Financial Assets and Deposit
Accounts;
(vi) All
Chattel Paper, Electronic Chattel Paper, Instruments, Documents, Letter of
Credit Rights, all proceeds of letters of credit, Supporting Obligations, notes
secured by real estate, Commercial Tort Claims and General Intangibles,
including Payment Intangibles; and
(vii) All
Proceeds (whether Cash Proceeds or Noncash Proceeds) of the foregoing property,
including all insurance policies and proceeds of insurance payable by reason of
loss or damage to the foregoing property, including unearned premiums, and of
eminent domain or condemnation awards.
2.2 No Assumption of
Liability. The Security Interest is granted as security only and, except
as otherwise required by applicable law, shall not subject the Lender or any
Secured Party to, or in any way alter or modify, any obligation or liability of
the Borrower with respect to or arising out of the Collateral.
2.3 Perfection of Security
Interest. Guarantor hereby irrevocably authorizes Lender, each
Secured Party and Secured Party Representative on behalf of the Secured Parties
at any time and from time to time to file financing statement(s) describing the
Collateral in all public offices reasonably deemed necessary by the Lender or
any Secured Party, and to take any and all actions, including, without
limitation, filing all financing statements, continuation financing statements
and all other documents that the Lender or a Secured Party may reasonably
determine to be necessary to perfect and maintain the Lender's or a Secured
Party’s security interests in the Collateral. Guarantor shall have
possession of the Collateral, except where expressly otherwise provided in this
Agreement or where the Lender or a Secured Party chooses to perfect its security
interest by possession, whether or not in addition to the filing of a financing
statement. Where Collateral is in the possession of a third party,
Guarantor will join with the Lender and the Secured Party Representative in
notifying the third party of the Lender’s and the Secured Parties’ security
interest and obtaining an acknowledgement from the third party that it is
holding the Collateral for the benefit of the Lender and the Secured
Parties. Guarantor will cooperate with the Lender and the Secured
Party Representative in obtaining control with respect to Collateral consisting
of Deposit Accounts, Investment Property, Letter-of-Credit Rights and Electronic
Chattel Paper. Guarantor will not create any Chattel Paper without
placing a legend on the Chattel Paper reasonably acceptable to the Lender and
the Secured Party Representative indicating that the Lender and each Secured
Party has a security interest in the Chattel Paper. Guarantor shall
pay the cost of filing or recording all financing statement(s) and other
documents.
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2.4 Preservation of the
Collateral. The Lender and Secured Party Representative may,
but neither is not required, to take such actions from time to time as the
Lender or the Secured Party Representative deems reasonably appropriate to
maintain or protect the Collateral. The Lender and the Secured Party
Representative shall have exercised reasonable care in the custody and
preservation of the Collateral if the Lender or Secured Party Representative
takes such action as the Guarantor shall reasonably request in writing which is
not inconsistent with the Lender's or any Secured Party’s status as a secured
party, but the failure of the Lender or the Secured Party Representative to
comply with any such request shall not be deemed a failure to exercise
reasonable care; provided, however, the Lender's or Secured Party
Representative’s responsibility for the safekeeping of the Collateral shall (a)
be deemed reasonable if such Collateral is accorded treatment substantially
equal to that which the Lender or any Secured Party accords its own property,
and (b) not extend to matters beyond the control of the Lender or Secured Party
Representative, including acts of God, war, insurrection, riot or governmental
actions. In addition, any failure of the Lender or Secured Party
Representative to preserve or protect any rights with respect to the Collateral
against prior or third parties, or to do any act with respect to preservation of
the Collateral, not so requested by the Guarantor, shall not be deemed a failure
to exercise reasonable care in the custody or preservation of the
Collateral. The Guarantor shall have the sole responsibility for
taking such action as may be necessary, from time to time, to preserve all
rights of the Guarantor, the Lender and each Secured Party in the Collateral
against prior or third parties. Without limiting the generality of
the foregoing, where Collateral consists in whole or in part of securities, the
Guarantor represents to, and covenants with, the Lender and each Secured Party
that the Guarantor has made arrangements for keeping informed of changes or
potential changes affecting the securities (including rights to convert or
subscribe, payment of dividends, reorganization or other exchanges, tender
offers and voting rights), and the Guarantor agrees that neither Lender, any
Secured Party nor the Secured Party Representative shall have any responsibility
or liability for informing the Guarantor of any such or other changes or
potential changes or for taking any action or omitting to take any action with
respect thereto.
2.5 Collateral in the Possession
of a Warehouseman or Bailee. If any of the Collateral at any
time is in the possession of a warehouseman or bailee, the Guarantor shall
promptly notify the Lender and the Secured Party Representative
thereof, and shall use commercially reasonable efforts to promptly obtain a
Collateral Access Agreement. Neither the Lender nor any Secured Party
shall give any instructions to such warehouseman or bailee pursuant to such
Collateral Access Agreement unless a Security Agreement Event of Default has
occurred and is continuing or would occur after taking into account any action
by the Guarantor with respect to the warehouseman or bailee.
2.6 Commercial Tort
Claims. If the Guarantor shall at any time hold or acquire a
Commercial Tort Claim, the Guarantor shall promptly, upon knowledge thereof,
notify the Lender and the Secured Party Representative in writing signed by the
Guarantor of the details thereof and at the request of the Lender or any Secured
Party grant to the Lender and to each Secured Party, for its own benefit and as
agent for its Affiliates, in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Agreement, in each case in form and
substance reasonably satisfactory to the Lender and the Secured Party
Representative, and shall execute any amendments hereto deemed reasonably
necessary by the Lender and any Secured Party to perfect the security interest
of the Lender or any Secured Party in such Commercial Tort Claim.
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2.7 Electronic Chattel Paper and
Transferable Records. If the Guarantor at any time holds or
acquires an interest in any electronic chattel paper or any "transferable
record", as that term is defined in Section 201 of the federal Electronic
Signatures in Global and National Commerce Act, or in Section 16 of the Uniform
Electronic Transactions Act as in effect in any relevant jurisdiction, the
Guarantor shall promptly notify the Lender and the Secured Party Representative
thereof and, at the request of the Lender or any Secured Party, shall take such
action as the Lender or the Secured Party Representative may reasonably request
to vest in the Lender or the Secured Parties, control under Section 9-105 of the
UCC of such electronic chattel paper or control under Section 201 of the federal
Electronic Signatures in Global and National Commerce Act or, as the case may
be, §16 of the Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. The Lender or the Secured
Party Representative, as the case may be, will arrange, pursuant to procedures
reasonably satisfactory to the Lender and each Secured Party, as applicable, and
so long as such procedures will not result in the Lender's or any Secured
Party’s loss of control, for the Guarantor to make alterations to the electronic
chattel paper or transferable record permitted under Section 9-105 of the UCC
or, as the case may be, Section 201 of the federal Electronic Signatures in
Global and National Commerce Act or Section 16 of the Uniform Electronic
Transactions Act for a party in control to make without loss of
control.
Section
3 REPRESENTATIONS AND
WARRANTIES.
To induce
the Lender to accept the Term Note, and to induce the Secured Parties’ to accept
the Post-Closing Cash (as defined in the Acquisition Agreement), the Guarantor
makes the following representations and warranties to DJS, PTA and DSI, each of
which shall survive the execution and delivery of this Agreement:
3.1 Guarantor Organization and
Name. The Guarantor is duly organized, existing and in good
standing, with full and adequate power to carry on and conduct its business as
presently conducted. The Guarantor is duly licensed or qualified in
all foreign jurisdictions wherein the nature of its activities requires such
qualification or licensing. The exact legal name of the Guarantor is
as set forth in the first paragraph of this Security Agreement.
3.2 Authorization. The
Guarantor has full right, power and authority to enter into this Security
Agreement and the Guaranty and to perform all of its duties and obligations
under this Security Agreement and the Guaranty. The execution and
delivery of this Security Agreement and the Guaranty will not, nor will the
observance or performance of any of the matters and things herein or therein set
forth, violate or contravene any provision of law or of the Guarantor’s
organizational documents, nor require any consent, approval, authorization, or
filings with, notice to or other act by or in respect of, any governmental
authority or any other party (other than any consent or approval which has been
obtained and is in full force and effect). All necessary and
appropriate action has been taken on the part of the Guarantor to authorize the
execution and delivery of this Security Agreement and the Guaranty.
3.3 Validity and Binding
Nature. This Security Agreement and the other Loan Documents
and Post-Closing Cash Documents are the legal, valid and binding obligations of
the Guarantor, enforceable against the Guarantor in accordance with their terms,
subject to bankruptcy, insolvency and similar laws affecting the enforceability
of creditors' rights generally and to general principles of equity.
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3.4 Security
Interest. This Security Agreement creates a valid security
interest in favor of each of DJS, PTA and DSI in the Collateral and, when
properly perfected by filing in the appropriate jurisdictions, or by possession
or Control of such Collateral by the Lender or a Secured Party or delivery of
such Collateral to the Lender or a Secured Party, shall constitute a valid,
perfected security interest in such Collateral. None of the
Collateral is subject to any security interest other than as contemplated by
this Security Agreement, the Loan Agreement or in favor of the holder of the
Senior Debt.
3.5 Place of
Business. The principal place of business and books and
records of the Guarantor is set forth in the preamble to this Agreement, and the
location of all Collateral, if other than at such principal place of business,
is as set forth in schedules furnished to DJS, PTA or DSI. The
Guarantor shall promptly notify the Lender and the Secured Party Representative
of any change in such location(s). The Guarantor will not remove or
permit the Collateral to be removed from such location(s) without the prior
written consent of the Lender and Secured Party Representative, except for
Inventory sold in the usual and ordinary course of the Guarantor's
business.
Section
4 EVENTS OF
DEFAULT.
The
Guarantor, without notice or demand of any kind, shall be in default with
respect to its Guaranteed Obligations upon the occurrence of any of the
following events, except to the extent caused by the action or failure to act of
the Lender, the Secured Party Representative, any Secured Party or any Affiliate
of any of the foregoing for the purpose of causing a Security Agreement Event of
Default (each an "Security Agreement Event of Default"):
4.1 Guarantor
fails to pay when due the Guaranteed Obligations;
4.2 Any
failure of Guarantor to perform or default by Guarantor in the performance of
any covenant, condition or agreement contained in this Security Agreement and
the continuance of such default or breach for a period of thirty (30) calendar
days after Guarantor has notice thereof, other than a default covered by Section
4.1; or
4.3 An Event
of Default which shall have not been cured within the applicable cure period, if
any.
Section
5 REMEDIES.
5.1 Rights and
Remedies. Upon the occurrence and during the continuance of a
Security Agreement Event of Default, (a) the Lender shall have all rights,
powers and remedies set forth in the Loan Documents, in any other written
agreement or instrument relating to any of the Term Note Obligations or any
security therefor, as a secured party under the UCC or as otherwise provided at
law or in equity and (b) the Secured Parties and the Secured Party
Representative on behalf of the Secured Parties shall have all rights powers and
remedies set forth in the Post-Closing Cash Documents, in any other written
agreement or instrument relating to the Post Closing Cash Obligations or any
security therefore, as a secured party under the UCC or as otherwise provided at
law or equity. Without limiting the generality of the foregoing, each
of the Lender or the Secured Party Representative (on behalf of the Secured
Parties) may, at such party’s option upon the occurrence and during the
continuance of an Security Agreement Event of Default, declare, their respective
Guaranteed Obligations to be immediately due and payable, provided, however,
that upon the occurrence and during the continuance of an Event of Default under
Section 8.6 of
the Loan Agreement, all Guaranteed Obligations shall be automatically due and
payable, all without demand, notice or further action of any kind required on
the part of the Lender or any Secured Party.
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(a) Possession and Assembly of
Collateral. The Lender or the Secured Party Representative
may, without notice, demand or legal process of any kind, take possession of any
or all of the Collateral (in addition to Collateral of which any Lender or
Secured Party may already have in its possession), wherever it may be found, and
for that purpose may pursue the same wherever it may be found, and may at any
time enter into any of the Guarantor's premises where any of the Collateral may
be or is supposed to be, and search for, take possession of, remove, keep and
store any of the Collateral until the same shall be sold or otherwise disposed
of and the Lender and Secured Party Representative shall have the right to store
and conduct a sale of the same in any of the Guarantor's premises without cost
to the Lender, the Secured Party Representative, or any Secured Party as
applicable. At the Lender's or Secured Party Representative’s
request, the Guarantor will, at the Guarantor's sole expense, assemble the
Collateral and make it available to the Lender or the Secured Party
Representative, as the case may be, at a place or places to be designated by the
Lender which is reasonably convenient to the Lender or any Secured Party, as the
case may be, and the Guarantor.
(b) Sale of
Collateral. The Lender or the Secured Party Representative (on
behalf of the Secured Parties) may sell any or all of the Collateral at public
or private sale, upon such terms and conditions as the Lender and each Secured
Party may deem reasonably proper, and the Lender or any Secured Party may
purchase any or all of the Collateral at any such sale. The Guarantor
acknowledges that the Lender or any Secured Party may be unable to effect a
public sale of all or any portion of the Collateral because of certain legal
and/or practical restrictions and provisions which may be applicable to the
Collateral and, therefore, may be compelled to resort to one or more private
sales to a restricted group of offerees and purchasers. The Guarantor
consents to any such private sale so made even though at places and upon terms
less favorable than if the Collateral were sold at public
sale. Neither the Lender nor any Secured Party shall have any
obligation to clean-up or otherwise prepare the Collateral for
sale. The Lender may apply the net proceeds, after deducting all
reasonable costs, expenses, attorneys' and paralegals' fees incurred or paid at
any time in the collection, protection and sale of the Collateral and the Term
Note Obligations, to the payment of the Term Note Obligations, in such order of
application as the Lender may, from time to time, elect, returning the excess
proceeds, if any, to the Guarantor. The Guarantor shall remain liable
for any amount remaining unpaid after such application, with interest at the
rate provided in the Loan Documents. The Secured Party Representative may apply
the net proceeds, after deducting all reasonable costs, expenses, attorneys' and
paralegals' fees incurred or paid at any time in the collection, protection and
sale of the Collateral and the Post-Closing Cash Obligations, to the payment of
the Post-Closing Cash Obligations, in such order of application as the Lender
may, from time to time, elect, returning the excess proceeds, if any, to the
Guarantor. The Guarantor shall remain liable for any amount remaining
unpaid after such application, with interest at the rate provided in the
Post-Closing Cash Documents. Any notification of intended disposition
of the Collateral required by law shall be conclusively deemed reasonably and
properly given if given by the Lender or any Secured Party or Secured Party
Representative at least ten (10) calendar days before the date of such
disposition. The Guarantor hereby confirms, approves and ratifies all
acts and deeds of the Lender, the Secured Party Representative or any Secured
Party relating to the foregoing, and each part thereof, and expressly waives any
and all claims of any nature, kind or description which it has or may hereafter
have against the Lender, any Secured Party or the Secured Party Representative
or its representatives, by reason of taking, selling or collecting any portion
of the Collateral. The Guarantor consents to releases of the
Collateral at any time (including prior to default) and to sales of the
Collateral in groups, parcels or portions, or as an entirety, as the Lender or
any Secured Party or Secured Party Representative shall deem reasonably
appropriate. The Guarantor expressly absolves the Lender, Secured
Party Representative any each Secured Party from any loss or decline in market
value of any Collateral by reason of delay in the enforcement or assertion or
nonenforcement of any rights or remedies under this Agreement.
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5.2 Waiver. Guarantor
acknowledges and agrees that any action taken by Lender, any Secured Party, the
Secured Party Representative or any of their Affiliates related to or taken in
furtherance of the exercise of Lender’s or a Secured Party’s remedies under this
Agreement upon and during the continuance of a Security Agreement Event of
Default, including but not limited to foreclosing upon or taking possession of
any of the Collateral, including but not limited to the operation of any of the
Collateral, shall not be a violation of any provision of the Xxxxx NDA or of the
Membership Interest Purchase Agreement. If any Lender, Secured Party,
Secured Party Representative acting on behalf of the Secured Parties or any
Affiliate of the Lender or any Secured Party becomes the owner of any of the
Collateral as a result of or after the exercise of any of Lender’s or Secured
Party’s remedies in accordance with Section 5 of this Agreement, the Guarantor
waives (i) any and all rights under Section 1, Section 4, Section 5 and Section
6 of the Xxxxx NDA, with respect to such Collateral and the use of such
Collateral, and agrees that Section 4 and Section 5 shall no longer be
applicable to Xxxxx X. Xxxxx, DSI, PTA or DJS and (ii) any and all rights under
Article 8 of the Membership Interest Purchase Agreement and agrees that such
Article shall no longer be applicable to Xxxxx X. Xxxxx, DSI, PTA or DJS except
that Section 7 (the Definition section) of the Xxxxx NDA shall not be
waived.
5.3 Standards for Exercising
Remedies. Upon the occurrence and during the continuance of an
Event of Default, to the extent that applicable law imposes duties on the
Lender, Secured Party Representative or any Secured Party to exercise remedies
in a commercially reasonable manner, the Guarantor acknowledges and agrees that
it is not commercially unreasonable for the Lender, Secured Party Representative
or any Secured Party (a) to fail to incur expenses reasonably deemed significant
by the Lender, Secured Party Representative or any Secured Party to prepare
Collateral for disposition, (b) to fail to obtain third party consents for
access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third party consents for the
collection or disposition of Collateral to be collected or disposed of, (c) to
fail to exercise collection remedies against account debtors or other party
obligated on Collateral or to remove liens or encumbrances on or any adverse
claims against Collateral, (d) to exercise collection remedies against account
debtors and other parties obligated on Collateral directly or through the use of
collection agencies and other collection specialists, (e) to advertise
dispositions of Collateral through publications or media of general circulation,
whether or not the Collateral is of a specialized nature, (f) to contact other
parties, whether or not in the same business as the Guarantor, for expressions
of interest in acquiring all or any portion of the Collateral, (g) to hire one
or more professional auctioneers to assist in the disposition of Collateral,
whether or not the collateral is of a specialized nature, (h) to dispose of
Collateral by utilizing internet sites that provide for the auction of assets of
the types included in the Collateral or that have the reasonable capability of
doing so, or that match buyers and sellers of assets, (i) to dispose of assets
in wholesale rather than retail markets, (j) to disclaim disposition warranties,
including any warranties of title, (k) to purchase insurance or credit
enhancements to insure the Lender, Secured Party Representative or any Secured
Party against risks of loss, collection or disposition of Collateral or to
provide to the Lender a guaranteed return from the collection or disposition of
Collateral, or (l) to the extent deemed reasonably appropriate by the Lender,
Secured Party Representative or any Secured Party to obtain the services of
other brokers, investment bankers, consultants and other professionals to assist
the Lender, Secured Party Representative or any Secured Party in the collection
or disposition of any of the Collateral. The Guarantor acknowledges
that the purpose of this section is to provide non-exhaustive indications of
what actions or omissions by the Lender, any Secured Party or the Secured Party
Representative would not be commercially unreasonable in the exercise of
remedies against the Collateral by any of the Lender, any Secured Party or the
Secured Party Representative and that other actions or omissions by the Lender,
Secured Party Representative or any Secured Party shall not be deemed
commercially unreasonable solely on account of not being indicated in this
section. Without limitation upon the foregoing, nothing contained in
this section shall be construed to grant any rights to the Guarantor or to
impose any duties on the Lender, Secured Party Representative or any Secured
Party that would not have been granted or imposed by this Agreement or by
applicable law in the absence of this section.
10
5.4 UCC and Offset
Rights. Upon the occurrence and during the continuance of an
Security Agreement Event of Default, the Lender and the Secured Party
Representative (on behalf of each Secured Party) may exercise, from time to
time, any and all rights and remedies available to each of them under the UCC or
under any other applicable law in addition to, and not in lieu of, any rights
and remedies expressly granted in this Security Agreement or in any other
agreements between any Obligor and Lender or any Obligor and Secured Parties,
and may, without demand or notice of any kind, appropriate and apply toward the
payment of the Guaranteed Obligations, whether matured or unmatured, including
reasonable costs of collection and attorneys' and paralegals' fees, and in such
order of application as the Lender or any Secured Party may, from time to time,
elect, any indebtedness of the Lender to any Obligor or any indebtedness of any
Secured Party to any Obligor, however created or arising, including balances,
credits, deposits, accounts or moneys of such Obligor in the possession, control
or custody of, or in transit to the Lender or any Secured Party, as
applicable.
5.5 Additional
Remedies. Upon the occurrence and during the continuance of a
Security Agreement Event of Default, the Lender and the Secured Party
Representative on behalf of the Secured Parties shall have the right and power
to:
(a) instruct
the Guarantor, at its own expense, to notify any parties obligated on any of the
Collateral, including any account debtors of Guarantor, to make payment directly
to the Lender or the Secured Party Representative, as applicable, of any amounts
due or to become due thereunder, or the Lender or Secured Party Representative,
as applicable, may directly notify such obligors of the security interest of the
Lender or the Secured Parties, and/or of the assignment to the Lender or the
Secured Party Representative of the Collateral and direct such obligors to make
payment to the Lender or the Secured Party Representative, as applicable, of any
amounts due or to become due with respect thereto, and thereafter, collect any
such amounts due on the Collateral directly from such party obligated
thereon;
(b) enforce
collection of any of the Collateral, including any Accounts, by suit or
otherwise, or make any compromise or settlement with respect to any of the
Collateral, or surrender, release or exchange all or any part thereof, or
compromise, extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder;
(c) take
possession or control of any proceeds and products of any of the Collateral,
including the proceeds of insurance thereon;
(d) extend,
renew or modify for one or more periods (whether or not longer than the original
period) the Guaranteed Obligations or any obligation of any nature of any other
obligor with respect to the Guaranteed Obligations;
(e) grant
releases, compromises or indulgences with respect to the Guaranteed Obligations,
any extension or renewal of any of the Guaranteed Obligations, any security
therefor, or to any other obligor with respect to the Obligations;
11
(f) transfer
the whole or any part of securities which may constitute Collateral into the
name of the Lender, the Lender's nominee, or any Secured Party or the Secured
Party Representative without disclosing, if the Lender or any Secured Party so
desires, that such securities so transferred are subject to the security
interest of the Lender or the Secured Party, and any corporation, association,
or any of the managers or trustees of any trust issuing any of such securities,
or any transfer agent, shall not be bound to inquire, in the event that the
Lender, such nominee or any Secured Party makes any further transfer of such
securities, or any portion thereof, as to whether the Lender, such nominee or
the Secured Party has the right to make such further transfer, and shall not be
liable for transferring the same;
(g) make an
election with respect to the Collateral under Section 1111 of the Bankruptcy
Code or take action under Section 364 or any other section of the Bankruptcy
Code; provided, however, that any such action of the Lender or the Secured Party
Representative as set forth herein shall not, in any manner whatsoever, impair
or affect the liability of the Guarantor hereunder, nor prejudice, waive, nor be
construed to impair, affect, prejudice or waive the Lender's or any Secured
Party’s rights and remedies at law, in equity or by statute, nor release,
discharge, nor be construed to release or discharge, the Guarantor, any
guarantor or other party liable to the Lender or any Secured Party for the
Guaranteed Obligations; and
(h) at any
time, and from time to time, accept additions to, releases, reductions,
exchanges or substitution of the Collateral, without in any way altering,
impairing, diminishing or affecting the provisions of this Agreement, the Loan
Documents, or any of the other Guaranteed Obligations, or the Lender's or any
Secured Party’s rights hereunder, under the Guaranteed Obligations.
The
Guarantor hereby ratifies and confirms that whatever the Lender or any Secured
Party or the Secured Party Representative may do with respect to the Collateral
and agrees that neither the Lender, any Secured Party nor the Secured Party
Representative shall be liable for any error of judgment or mistakes of fact or
law with respect to actions taken in connection with the Collateral except to
the extent resulting from the action, failure to act, negligence and/or
misconduct of the Lender, any other Secured Party, the Secured Party
Representative and/or any Affiliate of any of the foregoing.
5.6 Attorney-in-Fact. The
Guarantor hereby irrevocably makes, constitutes and appoints each of the Lender
and the Secured Party Representative (and any officer of the Lender or any party
designated by the Lender for that purpose) as the Guarantor's true and lawful
proxy and attorney-in-fact (and agent-in-fact) in the Guarantor's name, place
and stead, with full power of substitution, to (a) take such actions as are
permitted in this Agreement, (b) execute such financing statements and other
documents and to do such other acts as the Lender or any Secured Party may
reasonably require to perfect and preserve the Lender's or any Secured Party’s
security interest in, and to enforce such interests in the Collateral, and (c)
upon the occurrence and during the continuance of a Security Agreement Event of
Default, carry out any remedy provided for in this Agreement, including
endorsing the Guarantor's name to checks, drafts, instruments and other items of
payment, and proceeds of the Collateral, executing change of address forms with
the postmaster of the United States Post Office serving the address of the
Guarantor, changing the address of the Guarantor to that of the Lender or the
Secured Party Representative, opening all envelopes addressed to the Guarantor
and applying any payments contained therein to the Guaranteed
Obligations. The Guarantor hereby acknowledges that the constitution
and appointment of such proxy and attorney-in-fact are coupled with an interest
and are irrevocable. The Guarantor hereby ratifies and confirms all
that such attorney-in-fact may do or cause to be done by virtue of any provision
of this Agreement.
5.7 No
Marshaling. Neither the Lender nor any Secured Party shall be
required to marshal any present or future collateral security (including this
Security Agreement and the Collateral) for, or other assurances of payment of,
the Guaranteed Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order. To
the extent that it lawfully may, the Guarantor hereby agrees that it will not
invoke any law relating to the marshaling of collateral which might cause delay
in or impede the enforcement of the Lender's or any Secured Party’s rights under
this Security Agreement or under any other instrument creating or evidencing any
of the Obligations or Guaranteed Obligations or under which any of the
Obligations or Guaranteed Obligations is outstanding or by which any of the
Obligations or Guaranteed Obligations is secured or payment thereof is otherwise
assured, and, to the extent that it lawfully may, the Guarantor hereby
irrevocably waives the benefits of all such laws.
12
5.8 No
Waiver. No Security Agreement Event of Default shall be waived
by the Lender or any Secured Party Representative on behalf of the Secured
Parties except in writing. No failure or delay on the part of the
Lender or any Secured Party or the Secured Party Representative in exercising
any right, power or remedy hereunder shall operate as a waiver of the exercise
of the same or any other right at any other time; nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder. There shall be no obligation on the part of the Lender or
any Secured Party to exercise any remedy available to the Lender or any Secured
Party in any order. The remedies provided for herein are cumulative
and not exclusive of any remedies provided at law or in equity. The
Guarantor agrees that in the event that the Guarantor fails to perform, observe
or discharge any of its Guaranteed Obligations or liabilities under this
Security Agreement or any other agreements with the Lender or any Secured Party,
no remedy of law will provide adequate relief to the Lender or any Secured
Party, and further agrees that the Lender and each Secured Party shall be
entitled to temporary and permanent injunctive relief in any such case without
the necessity of proving actual damages.
Section
6 MISCELLANEOUS.
6.1 Entire
Agreement. This Security Agreement and the other Loan
Documents and Post-Closing Cash Documents (a) constitute the entire agreement
between the Parties with respect to the subject matter hereof and thereof; and
(b) are the final expression of the intentions of the Guarantor, Lender and
Secured Parties. No promises, either expressed or implied, exist
between the Guarantor, Lender and Secured Parties, unless contained herein or
therein. This Security Agreement, together with the other Loan
Documents and the Post-Closing Cash Documents supersedes all negotiations,
representations, warranties, commitments, term sheets, discussions,
negotiations, offers or contracts (of any kind or nature, whether oral or
written) prior to or contemporaneous with the execution hereof with respect to
any matter, directly or indirectly related to the terms of this Security
Agreement and the other Loan Documents and Post-Closing Cash
Documents. This Security Agreement and the other Loan Documents and
the Post-Closing Cash Documents are the result of negotiations among the Lender,
the Secured Parties and the Guarantor and the other parties thereto, and have
been reviewed (or have had the opportunity to be reviewed) by counsel to all
such parties, and are the products of all Parties. Accordingly, this
Agreement and the other Loan Documents and the Post-Closing Cash Documents shall
not be construed more strictly against the Lender or any Secured Party merely
because of the Lender's or a Secured Party’s involvement in their
preparation.
6.2 Amendments. No
amendment, modification or waiver of, or consent with respect to, any provision
of this Security Agreement or the other Loan Documents or Post-Closing Cash
Documents shall in any event be effective unless the same shall be in writing
and acknowledged by the Guarantor, the Lender and each Secured Party, and then
any such amendment, modification, waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
6.3 [RESERVED].
13
6.4 Forum Selection and Consent
to Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR ANY OTHER LOAN
DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF FLORIDA OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE THE LENDER OR ANY SECURED PARTY FROM BRINGING SUIT OR TAKING OTHER
LEGAL ACTION IN ANY OTHER JURISDICTION. THE GUARANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF FLORIDA AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
FLORIDA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF FLORIDA. THE GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
6.5 Waiver of Jury
Trial. THE LENDER, EACH SECURED PARTY AND THE GUARANTOR, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY, ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT, POST-CLOSING CASH DOCUMENT, ANY OF
THE OTHER GUARANTEED OBLIGATIONS, THE COLLATERAL, OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, OR ANY COURSE OF CONDUCT OR
COURSE OF DEALING IN WHICH THE LENDER, ANY SECURED PARTY AND THE GUARANTOR ARE
ADVERSE PARTIES, AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER AND EACH SECURED PARTY GRANTING ANY FINANCIAL
ACCOMMODATION TO THE GUARANTOR.
6.6 Assignability. The
Lender or any Secured Party may at any time assign the Lender's or
Secured Party’s rights in this Agreement, the other Loan Documents, the
Guaranteed Obligations, or any part thereof and transfer the Lender's or any
Secured Party’s rights in any or all collateral for the Guaranteed Obligations,
and the Lender thereafter shall be relieved from all liability with respect to
such collateral. The Guarantor may not sell or assign this Agreement,
or any other agreement with the Lender or any Secured Party or any portion
thereof, either voluntarily or by operation of law, without the prior written
consent of the Lender and each Secured Party, as applicable. This
Security Agreement shall be binding upon the Lender, the Secured Party and the
Guarantor and their respective legal representatives and
successors. All references herein to the Guarantor shall be deemed to
include any successors, whether immediate or remote.
6.7 Governing
Law. This Security Agreement and the other Loan Documents
shall be delivered and accepted in and shall be deemed to be contracts made
under and governed by the internal laws of the State of Florida applicable to
contracts made and to be performed entirely within such state, without regard to
conflict of laws principles.
14
6.8 Enforceability. Wherever
possible, each provision of this Security Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Security Agreement shall be prohibited by, unenforceable or invalid
under any jurisdiction, such provision shall as to such jurisdiction, be
severable and be ineffective to the extent of such prohibition or invalidity,
without invalidating the remaining provisions of this Security Agreement or
affecting the validity or enforceability of such provision in any other
jurisdiction.
6.9 Survival of Guarantor
Representations. All covenants, agreements, representations
and warranties made by the Guarantor herein shall, notwithstanding any
investigation by the Lender or any Secured Party, be deemed material and relied
upon by the Lender and each Secured Party and shall survive the making and
execution of this Security Agreement and the other Loan Documents and
Post-Closing Cash Documents and shall be deemed to be continuing representations
and warranties (except to the extent such representations or warranties
expressly relate to an earlier date) until such time as the Guaranty has been
irrevocably terminated and/or the Guaranteed Obligations have been indefeasibly
paid in full in cash. The Lender and each Secured Party, in extending
financial accommodations to the Guarantor, is expressly acting and relying on
the aforesaid representations and warranties.
6.10 [RESERVED].
6.11 Counterparts; Facsimile
Signatures. This Security Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same Security
Agreement. Receipt of an executed signature page to this Security
Agreement by facsimile or other electronic transmission shall constitute
effective delivery thereof. Electronic records of executed Loan Documents and
Post-Closing Cash Documents maintained by the Lender or any Secured Party shall
be deemed to be originals thereof.
6.12 Notices. Any notice, demand,
approval, consent or communication required, permitted, or desired to be given
hereunder, will be in writing and will be served on the Parties at the following
respective addresses:
|
If
to Lender:
|
Law
Offices of Xxxxx X. Xxxxx, P.A.
000
X. Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
ATTN: Xxxxx
X. Xxxxx
Facsimile: (000)
000-0000
|
|
If
to Guarantor:
|
DAL
Group, LLC
000
X. Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
ATTN: Chief
Financial Officer
Facsimile: (000)
000-0000
|
|
If
to Secured Parties:
|
Xxxxx
X. Xxxxx
000
X. Xxxx Xxxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxx 00000
Facsimile: (000)
000-0000
|
15
or such
other address, or the attention of such other person or officer, as any Party
may by written notice designate. Any notice, demand, or communication
required, permitted, or desired to be given hereunder will be sent either by
hand delivery, by prepaid certified or registered mail, return receipt
requested, postage prepaid in the United States Mail, by a nationally recognized
overnight courier, or via facsimile or other electronic transmission (including
transmission in portable document format by electronic mail). If any
notice, demand or communication is sent by facsimile or electronic mail
transmission, an original must be simultaneously sent by one of the
foregoing mail or courier methods. All such notices, demands or
communications shall be deemed to have been received (a) if by personal
delivery, facsimile machine or other electronic transmission (including
transmission in portable document format by electronic mail), on the date after
such delivery, (b) if by certified or registered mail, on the third business day
after the mailing thereof or (c) if by next-day or overnight courier or
delivery, on the date of such delivery.
6.13 Costs, Fees and
Expenses. The Guarantor shall pay or reimburse the Lender and
each Secured Party for all reasonable costs, fees and expenses incurred by the
Lender or any Secured Party or for which the Lender or any Secured Party becomes
obligated in connection with the negotiation, preparation, consummation,
collection of the Guaranteed Obligations or enforcement of this Security
Agreement, the other Loan Documents and all other documents provided for herein
or delivered or to be delivered hereunder or in connection herewith (including
any amendment, supplement or waiver to any Loan Document), or during any
workout, restructuring or negotiations in respect thereof, including, without
limitation, reasonable consultants' fees and attorneys' fees and time charges of
counsel to the Lender and each Secured Party, which shall also include
reasonable attorneys' fees and time charges of attorneys who may be employees of
the Lender or any Secured Party or any Affiliate of the Lender or any Secured
Party, plus reasonable costs and expenses of such attorneys or of the Lender or
any Secured Party, if the transaction contemplated hereby shall be
consummated. In furtherance of the foregoing, the Guarantor shall pay
any and all stamp and other taxes, UCC search fees, filing fees and other
reasonable costs and expenses in connection with the execution and delivery of
this Security Agreement and the other Loan Documents to be delivered hereunder,
and agrees to save and hold the Lender and each Secured Party harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such costs and expenses. That portion of
the Guaranteed Obligations consisting of costs, expenses or advances to be
reimbursed by the Guarantor to the Lender and each Secured Party pursuant to
this Security Agreement or the other Loan Documents which are not paid on or
prior to the date hereof shall be payable by the Guarantor to the Lender or the
applicable Secured Party on demand. If at any time or times hereafter
the Lender or any Secured Party: (a) employs counsel for advice or other
representation (i) with respect to this Security Agreement or the other
Loan Documents or the Post-Closing Cash Documents, (ii) to represent the
Lender or any Secured Party in any litigation, contest, dispute, suit or
proceeding or to commence, defend, or intervene or to take any other action in
or with respect to any litigation, contest, dispute, suit, or proceeding
(whether instituted by the Lender, a Secured Party the Guarantor, or any other
party) in any way or respect relating to this Security Agreement, the other Loan
Documents, the Post-Closing Cash Documents or the Guarantor's business or
affairs, or (iii) to enforce any rights of the Lender or any Secured Party
against the Guarantor or any other party that may be obligated to the Lender or
any Secured Party by virtue of this Security Agreement or the other Loan
Documents or Post-Closing Cash Documents; (b) takes any action to protect,
collect, sell, liquidate, or otherwise dispose of any Collateral for the
Guaranteed Obligations as permitted pursuant to this Security Agreement or by
applicable law; and/or (c) attempts to or enforces any of the Lender's or
any Secured Party’s rights or remedies under this Security Agreement or the
other Loan Documents or Post-Closing Cash Documents, the reasonable costs and
expenses incurred by the Lender or a Secured Party in any manner or way with
respect to the foregoing, shall be part of the Guaranteed Obligations, payable
by the Guarantor to the Lender or the applicable Secured Party on
demand.
16
6.14 Secured Party
Representative. Each Secured Party, with respect to the Post-Closing Cash
Obligations, hereby constitutes and appoints Xx. Xxxxx X. Xxxxx, or his
designee, as its representative (the “Secured Party
Representative”) and their true and lawful attorney in fact, with full
power and authority in each of their names and on behalf of each of them to act
on behalf of each of them in the absolute discretion of the Secured Party
Representative, but only with respect to the following provisions of this
Security Agreement, with the power to (a) give and receive notices pursuant this
Security Agreement, (b) waive any provision of this Security Agreement, (c)
collect or accept funds or Collateral on behalf of the Secured Parties, and (d)
to do all things and to perform all acts, including executing and delivering all
agreements, certificates, receipts, instructions and other instruments
contemplated by or deemed advisable to effectuate the intent of this Security
Agreement. This appointment and grant of power and authority is by unanimous
approval of the Secured Parties and the Secured Parties may change the Secured
Party Representative by a written notice signed by all Secured Parties delivered
to the Guarantor. Each Secured Party hereby consents to the taking of any and
all actions and the making of any decisions required or permitted to be taken or
made by the Secured Party Representative pursuant to this Security Agreement.
Each Secured Party agrees that the Secured Party Representative shall have no
obligation or liability to any person for any action or omission taken or
omitted by the Secured Party Representative in good faith hereunder, and each
Secured Party shall, on a proportionate basis in accordance with the proportion
of debt owed to it by the Guarantor, indemnify and hold the Secured Party
Representative harmless from and against any and all loss, damage, expense or
liability (including reasonable counsel fees and expenses) which the Secured
Party Representative may sustain as a result of any such action or omission by
the Secured Party Representative hereunder. The Guarantor shall be entitled to
rely upon any document or other paper delivered by the Secured Party
Representative as (i) genuine and correct, and (ii) having been duly signed or
sent by the Secured Party Representative, and the Guarantor shall not be liable
to any Secured Party for any action taken or omitted to be taken by the
Guarantor in such reliance.
[Signatures
appear on the following page]
17
IN
WITNESS WHEREOF, the Guarantor and Secured Parties have executed this Security
Agreement as of the date first above written.
Guarantor:
DJS
PROCESSING, LLC a limited liability company organized under the laws of the
State of Delaware
By:
______________________________
Name:
______________________________
Title:
______________________________
Agreed
and accepted:
Lender:
LAW
OFFICES OF XXXXX X. XXXXX, P.A.
By:
______________________________
Name:
______________________________
Title:
______________________________
Secured
Parties:
LAW
OFFICES OF XXXXX X. XXXXX, P.A.
By:
______________________________
Name:
______________________________
Title:
______________________________
DEFAULT
SERVICING, INC.
By:
______________________________
Name:
______________________________
Title:
______________________________
PROFESSIONAL
TITLE & ABSTRACT COMPANY OF FLORIDA, INC.
By:
______________________________
Name:
______________________________
Title:
______________________________
18
