EXHIBIT 4.6
EXHIBIT E
FORM OF SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") dated as of ____________, 2005
among Infinity, Inc., a Colorado corporation ("Borrower"), Consolidated Oil Well
Services, Inc., a Kansas corporation ("Consolidated"), CIS-Oklahoma, Inc., a
Kansas corporation, Infinity Oil & Gas of Wyoming, Inc., a Wyoming corporation
("Infinity-Wyoming"), Infinity Oil and Gas of Texas, Inc., a Delaware
corporation ("Infinity-Texas"), and Infinity Oil & Gas of Kansas, Inc., a Kansas
corporation (each such corporation, including Borrower, and together with each
other Person who becomes a party to this Agreement by execution of a joinder in
the form of Exhibit A attached hereto, is referred to individually as a "Debtor"
and, collectively, as the "Debtors"), and Promethean Asset Management L.L.C., a
Delaware limited liability company, in its capacity as collateral agent for the
Lenders on Schedule B attached hereto and their respective successors and
assigns (together with its successors and assigns in such capacity, the "Secured
Party").
WITNESSETH:
WHEREAS, on the date hereof, Lenders have made loans and certain other
financial accommodations to Borrower (collectively, the "Initial Loans"), as
evidenced by those certain senior secured notes of even date herewith made by
Borrower payable to the Lenders in the original aggregate principal amount of
$30,000,000 (such notes, together with any promissory notes or other securities
issued in exchange or substitution therefor or replacement thereof, and as any
of the same may be amended, restated, modified or supplemented and in effect
from time to time, being herein referred to as the "Initial Notes");
WHEREAS, one or more Lenders may make additional loans and certain
other financial accommodations to Borrower (collectively the "Additional Loans"
and, together with the Initial Loans, the "Loans"), as will be evidenced by
additional senior secured notes made by Borrower payable to such Lender or
Lenders in an original aggregate principal amount of up to $45,000,000 (such
notes, together with any promissory notes or other securities issued in exchange
or substitution therefor or replacement thereof, and as any of the same may be
amended, restated, modified or supplemented and in effect from time to time,
being herein referred to as the "Additional Notes" and, together with the
Initial Notes, the "Notes");
WHEREAS, the Notes are being acquired (or, in the case of the
Additional Notes, will be acquired) by Lenders pursuant to a Securities Purchase
Agreement with Borrower, dated as of January 13, 2005 (as same may be amended,
restated, supplemented or otherwise modified from time to time, the "Purchase
Agreement");
WHEREAS, Debtors (other than Borrower) are subsidiaries of Borrower
and, as such, will derive substantial benefit and advantage from the Loans, and
it will be to each such Debtor's direct interest and economic benefit to assist
the Borrower in procuring such Loans; and
WHEREAS, to induce the Lenders to make the Loans, (i) each Debtor
(other than Borrower) has agreed to guaranty the Liabilities (as hereinafter
defined) of Borrower pursuant to that certain Guaranty of even date herewith
(the same, as it may be amended, restated, modified or supplemented and in
effect from time to time, the "Guaranty") by such Debtors in favor of Secured
Party (on its behalf and on behalf of the Lenders) and (ii) each Debtor has
agreed to pledge and grant a security interest in the Collateral (as hereinafter
defined) as security for its Liabilities.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein without
definition and defined in the Purchase Agreement are used herein as defined
therein. In addition, as used herein:
"Accounts" means any "account," as such term is defined in the
Uniform Commercial Code, and, in any event, shall include, without
limitation, "supporting obligations" as defined in the Uniform
Commercial Code.
"As-extracted Collateral" means any "as-extracted collateral,"
as such term is defined in the Uniform Commercial Code.
"Chattel Paper" means any "chattel paper," as such term is
defined in the Uniform Commercial Code.
"Collateral" shall have the meaning ascribed thereto in
Section 3 hereof.
"Commercial Tort Claims" means "commercial tort claims", as
such term is defined in the Uniform Commercial Code.
"Contracts" means all contracts, undertakings, or other
agreements (other than rights evidenced by Chattel Paper, Documents or
Instruments) in or under which a Debtor may now or hereafter have any
right, title or interest, including, without limitation, with respect
to an Account, any agreement relating to the terms of payment or the
terms of performance thereof.
"Copyrights" means any copyrights, rights and interests in
copyrights, works protectable by copyrights, copyright registrations
and copyright applications, including, without limitation, the
copyright registrations and applications listed on Schedule III
attached hereto, and all renewals of any of the foregoing, all income,
royalties, damages and payments now and hereafter due and/or payable
under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to xxx for past,
present and future infringements of any of the foregoing.
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"Deposit Accounts" means all "deposit accounts" as such term
is defined in the Uniform Commercial Code, now or hereafter held in the
name of a Debtor.
"Documents" means any "documents," as such term is defined in
the Uniform Commercial Code, and shall include, without limitation, all
documents of title (as defined in the Uniform Commercial Code), bills
of lading or other receipts evidencing or representing Inventory or
Equipment.
"Equipment" means any "equipment," as such term is defined in
the Uniform Commercial Code and, in any event, shall include, Motor
Vehicles.
"Event of Default" shall have the meaning set forth in the
Notes.
"General Intangibles" means any "general intangibles," as such
term is defined in the Uniform Commercial Code, and, in any event,
shall include, without limitation, all right, title and interest in or
under any Contract, models, drawings, materials and records, claims,
literary rights, goodwill, rights of performance, Copyrights,
Trademarks, Patents, warranties, rights under insurance policies and
rights of indemnification.
"Goods" means any "goods", as such term is defined in the
Uniform Commercial Code, including, without limitation, fixtures and
embedded Software to the extent included in "goods" as defined in the
Uniform Commercial Code.
"Instruments" means any "instrument," as such term is defined
in the Uniform Commercial Code, and shall include, without limitation,
promissory notes, drafts, bills of exchange, trade acceptances, letters
of credit, letter of credit rights (as defined in the Uniform
Commercial Code), and Chattel Paper.
"Inventory" means any "inventory," as such term is defined in
the Uniform Commercial Code.
"Investment Property" means any "investment property", as such
term is defined in the Uniform Commercial Code.
"JVEA" means that certain Joint Value Enhancement Agreement
dated December 3, 2003, as in effect on the date hereof, among
Infinity-Wyoming and Schlumberger Technology Corporation
("Schlumberger") and Red Oak Capital Management LP ("Red Oak"; and,
collectively with Schlumberger, the "Service Parties").
"Liabilities" shall mean all obligations, liabilities and
indebtedness of every nature of Debtors from time to time owed or owing
under or in respect of this Agreement, the Purchase Agreement, the
Notes, the Warrants, the Registration Right Agreement, the Guaranty,
any of the other Security Documents and any of the other Transaction
Documents, as the case may be, including, without limitation, the
principal amount of all debts, claims and indebtedness, accrued and
unpaid interest and all fees, costs and expenses, whether primary,
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secondary, direct, contingent, fixed or otherwise, heretofore, now
and/or from time to time hereafter owing, due or payable whether before
or after the filing of a bankruptcy, insolvency or similar proceeding
under applicable federal, state, foreign or other law and whether or
not an allowed claim in any such proceeding.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, hypothecation, charge, security interest, encumbrance or
adverse claim of any kind and any restrictive covenant, condition,
restriction or exception of any kind that has the practical effect of
creating a mortgage, lien, pledge, hypothecation, charge, security
interest, encumbrance or adverse claim of any kind (including any of
the foregoing created by, arising under or evidenced by any conditional
sale or other title retention agreement, the interest of a lessor with
respect to a Capital Lease Obligation (as defined in the Notes), or any
financing lease having substantially the same economic effect as any of
the foregoing).
"Motor Vehicles" shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed
by a certificate of title or ownership.
"Patents" means any patents and patent applications,
including, without limitation, the inventions and improvements
described and claimed therein, all patentable inventions and those
patents and patent applications listed on Schedule IV attached hereto,
and the reissues, divisions, continuations, renewals, extensions and
continuations-in-part of any of the foregoing, and all income,
royalties, damages and payments now or hereafter due and/or payable
under or with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to xxx for past,
present and future infringements of any of the foregoing.
"Permitted Lien" shall have the meaning set forth in the
Notes.
"Permitted Priority Liens" means (i) Permitted Liens described
in clauses (c), (d), (e) and (k) of the definition thereof that are
accorded priority by law or by agreement of Secured Party to the Liens
granted to Secured Party hereunder and (ii) Permitted Liens described
in clauses (h), (i) and (j) of the definition thereof subject to the
limitations set forth therein.
"Proceeds" means "proceeds," as such term is defined in the
Uniform Commercial Code and, in any event, includes, without
limitation, (a) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable with respect to any of the Collateral, (b)
any and all payments (in any form whatsoever) made or due and payable
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental body, authority, bureau or agency (or
any person acting under color of governmental authority), and (c) any
and all other amounts from time to time paid or payable under, in
respect of or in connection with any of the Collateral.
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"Representative" means any Person acting as agent,
representative or trustee on behalf of the Secured Party from time to
time.
"Software" means all "software" as such term is defined in the
Uniform Commercial Code, now owned or hereafter acquired by a Debtor,
other than software embedded in any category of Goods, including,
without limitation, all computer programs and all supporting
information provided in connection with a transaction related to any
program.
"Trademarks" means any trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade
styles, service marks, logos, other business identifiers, prints and
labels on which any of the foregoing have appeared or appear, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, the trademarks and
applications listed in Schedule V attached hereto and renewals thereof,
and all income, royalties, damages and payments now or hereafter due
and/or payable under or with respect to any of the foregoing,
including, without limitation, damages and payments for past, present
and future infringements of any of the foregoing and the right to xxx
for past, present and future infringements of any of the foregoing.
"Triggering Event" shall have the meaning set forth in the
Notes.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as in effect from time to time in the State of New York; provided,
that to the extent that the Uniform Commercial Code is used to define
any term herein and such term is defined differently in different
Articles or Divisions of the Uniform Commercial Code, the definition of
such term contained in Article or Division 9 shall govern.
Section 2. Representations, Warranties and Covenants of Debtors. Each
Debtor represents and warrants to, and covenants with, the Secured Party as
follows:
(a) Such Debtor has rights in and the power to transfer the
Collateral in which it purports to grant a security interest pursuant
to Section 3 hereof (subject, with respect to after acquired
Collateral, to such Debtor acquiring the same) and no Lien other than
Permitted Liens exists or will exist upon such Collateral at any time.
(b) This Agreement is effective to create in favor of Secured
Party a valid security interest in and Lien upon all of such Debtor's
right, title and interest in and to the Collateral, and such security
interest is and will be a perfected first priority (such priority
subject only to Permitted Priority Liens) security interest, securing
the payment of the Liabilities, and is and will be entitled to all of
the rights, priorities and benefits afforded by the Uniform Commercial
Code or other applicable law as enacted in any relevant jurisdiction
which relates to perfected security interests; provided Secured Party
acknowledges that, except as provided
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by the Uniform Commercial Code or other applicable law, it will not
have a perfected security interest in (i) the Deposit Accounts that are
not covered by an Account Control Agreement (as defined below) as
permitted by Section 4.5(c) below until such time as Secured Party, the
financial institution at which such Deposit Account is maintained and
the Debtor owning such Deposit Account enter into an Account Control
Agreement in respect thereof and (ii) Equipment (including Motor
Vehicles) subject to a certificate of title or ownership to the extent
Secured Party has not been named lienholder on such certificate of
title or ownership, or such Debtor has not otherwise complied with the
applicable certificate of title or ownership laws of the relevant
jurisdiction issuing such certificate of title or ownership in order to
properly evidence and perfect Secured Party's security interest in the
assets represented by such certificate of title or ownership, as
permitted by Section 4.1(d) below until such time as Secured Party has
been listed as the lienholder on such certificate of title or ownership
(or such Debtor has otherwise complied with the applicable certificate
of title or ownership laws of the relevant jurisdiction issuing such
certificate of title or ownership in order to properly evidence and
perfect Secured Party's security interest in the assets represented by
such certificate of title or ownership).
(c) All of the Equipment, Inventory and Goods owned by such
Debtor is located at the places as specified on Schedule I attached
hereto. Except as disclosed on Schedule I, none of the Collateral is in
the possession of any bailee, warehousemen, processor or consignee.
Schedule I discloses such Debtor's name as of the date hereof as it
appears in official filings in the state of its incorporation,
formation or organization, the type of entity of such Debtor (including
corporation, partnership, limited partnership or limited liability
company), organizational identification number issued by such Debtor's
state of incorporation, formation or organization (or a statement that
no such number has been issued), such Debtor's state of incorporation,
formation or organization and the chief place of business, chief
executive office and the office where such Debtor keeps its books and
records. Such Debtor has only one state of incorporation, formation or
organization. Such Debtor (including any Person acquired by such
Debtor) does not do business and has not done business during the past
five (5) years under any trade name or fictitious business name except
as disclosed on Schedule II attached hereto.
(d) No Copyrights, Patents or Trademarks listed on Schedules
III, IV and V, respectively, if any, have been adjudged invalid or
unenforceable or have been canceled, in whole or in part, or are not
presently subsisting. Each of such Copyrights, Patents and Trademarks
is valid and enforceable. Such Debtor is the sole and exclusive owner
of the entire and unencumbered right, title and interest in and to each
of such Copyrights, Patents and Trademarks, identified on Schedules
III, IV and V, as applicable, as being owned by such Debtor, free and
clear of any liens, charges and encumbrances, including without
limitation licenses, shop rights and covenants by such Debtor not to
xxx third persons. Such Debtor has adopted, used and is currently
using, or has a current bona fide intention to use, all of such
Trademarks and Copyrights. Such Debtor has no
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notice of any suits or actions commenced or threatened with reference
to the Copyrights, Patents or Trademarks owned by it.
(e) Each Debtor agrees to deliver to the Secured Party an
updated Schedule I, II, III, IV and/or V within five (5) Business Days
of any change thereto.
(f) All depositary and other accounts including, without
limitation, Deposit Accounts, securities accounts, brokerage accounts
and other similar accounts, maintained by each Debtor are described on
Schedule VI hereto, which description includes for each such account
the name of the Debtor maintaining such account, the name, address and
telephone and telecopy numbers of the financial institution at which
such account is maintained, the account number and the account officer,
if any, of such account. No Debtor shall open any new Deposit Accounts,
securities accounts, brokerage accounts or other accounts unless such
Debtor shall have given Secured Party ten (10) Business Days' prior
written notice of its intention to open any such new accounts. Each
Debtor shall deliver to Secured Party a revised version of Schedule VI
showing any changes thereto within five (5) Business Days of any such
change. Each Debtor hereby authorizes the financial institutions at
which such Debtor maintains an account to provide Secured Party with
such information with respect to such account as Secured Party from
time to time reasonably may request, and each Debtor hereby consents to
such information being provided to Secured Party. In addition, all of
such Debtor's depositary, security, brokerage and other accounts
including, without limitation, Deposit Accounts shall be subject to the
provisions of Section 4.5 hereof.
(g) Such Debtor does not own any Commercial Tort Claim except
for those disclosed on Schedule VII hereto.
(h) Other than Interests during the time period for which such
Debtor is not required to provide the Lenders with a valid, perfected
first priority security interest therein in accordance with Section
4(o)(ii) of the Purchase Agreement (provided nothing herein shall limit
any breach of the terms of Section 4(o)(ii) of the Purchase Agreement
for failure of a Debtor to grant to Secured Party a first priority
perfected security interest in any Interests within the time periods
set forth in such Section 4(o)(ii)), such Debtor does not have any
interest in real property or mining rights with respect to real
property except as disclosed on Schedule VIII (provided, however, that
in preparing Schedule VIII it is hereby agreed that a Debtor is not
required to set forth thereon easements, rights of way, access
agreements, surface damage agreements, surface use agreements or
similar agreements that pertain to real property that is contained
wholly within the boundaries of any owned or leased real property of
such Debtor otherwise described on Schedule VIII). Each Debtor shall
deliver to Secured Party a revised version of Schedule VIII showing any
changes thereto within ten (10) Business Days of any such change or,
with respect to any Interest acquired after the date hereof, on the
date on which such Debtor is required to provide Lenders with a
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valid, perfected first priority security interest in such Interest in
accordance with Section 4(o)(ii) of the Purchase Agreement. Except as
otherwise agreed to by Secured Party or as otherwise permitted by
Section 4(o)(ii) of the Purchase Agreement, all such interests in real
property or mining rights with respect to such real property are
subject to a mortgage, deed of trust and assignment of production
proceeds (in form and substance satisfactory to Secured Party) in favor
of Secured Party (hereinafter, a "Mortgage"); provided, however, that
notwithstanding anything to the contrary set forth above, the Secured
Party and the Lenders hereby agree that a Mortgage shall not be filed
against the three Project Xxxxx (as defined in the JVEA) set forth on
Exhibit C to Schedule VIII until such time as the filing of a Mortgage
against such Project Xxxxx does not cause a breach of the JVEA (it
being agreed to and understood that the preceding proviso applies only
to the subject Project Xxxxx set forth on Exhibit C to Schedule VIII
and does not apply with respect to any other property or assets of any
Debtor, including, without limitation, any interests in real property
or mining rights set forth on Exhibit A to any Mortgage that relate to
or arise in respect of any real property on which the Project Xxxxx are
located). Each Debtor acknowledges that each such Mortgage contains an
Exhibit A (or other applicable Exhibit) listing the properties in which
such Debtor has an interest, and to the extent that Schedule VIII is
updated pursuant to this Section 2(h), the applicable Debtor shall be
obligated to execute an amendment to the applicable Exhibit to the
applicable Mortgage such that, after giving effect to such Mortgage
amendment, Secured Party will have a first priority (other than with
respect to property or assets subject to Permitted Priority Liens)
perfected security interest in such new real property or mining rights.
(i) Each Debtor shall duly and properly record each interest
in real property held by such Debtor except with respect to easements,
rights of way, access agreements, surface damage agreements, surface
use agreements or similar agreements that such Debtor, using prudent
customs and practices in the industry in which it operates, does not
believe are of material value or material to the operation of such
Debtor's business or, with respect to state and federal rights of way,
are not capable of being recorded as a matter of state and federal law.
Each of Borrower and Infinity-Texas acknowledges that it has obtained
an assignment from Shorthorn Resources, Inc. of an interest in an oil
and gas lease originally entered into between Xxxxxx X. Putty, et al.
and Shorthorn Resources, Inc. covering 2,645.4 acres in Xxxxxxxx
County, Texas, and, with respect thereto, notwithstanding anything to
the contrary contained in this Agreement, each of Borrower and
Infinity-Texas agrees to (i) within two (2) Business Days of the date
of this Agreement, record such assignment in the proper office in
Xxxxxxxx County, Texas in order to convey title into Infinity-Texas and
(ii) within ten (10) Business Days of the date of this Agreement,
update Schedule VIII to reflect Infinity-Texas' interests in such
property and provide Secured Party with a Mortgage in favor of Secured
Party that complies with Section 2(h) above and covers such interests.
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Section 3. Collateral. As collateral security for the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the
Liabilities, each Debtor hereby pledges and grants to the Secured Party a Lien
on and security interest in and to all of such Debtor's right, title and
interest in the personal property and assets of such Debtor, whether now owned
by such Debtor or hereafter acquired and whether now existing or hereafter
coming into existence and wherever located (all being collectively referred to
herein as "Collateral"), including, without limitation:
(a) all Instruments, together with all payments thereon or
thereunder:
(b) all Accounts;
(c) all Inventory;
(d) all General Intangibles (including payment intangibles (as
defined in the Uniform Commercial Code) and Software);
(e) all Equipment;
(f) all Documents;
(g) all Contracts;
(h) all Goods;
(i) all Investment Property;
(j) all Deposit Accounts, including, without limitation, the
balance from time to time in all bank accounts maintained by such
Debtor;
(k) all Commercial Tort Claims specified on Schedule VII;
(l) all As-extracted Collateral;
(m) all Trademarks, Patents and Copyrights; and
(n) all other tangible and intangible property of such Debtor,
including, without limitation, all Proceeds, tort claims, products,
accessions, rents, profits, income, benefits, substitutions, additions
and replacements of and to any of the property of such Debtor described
in the preceding clauses of this Section 3 (including, without
limitation, any proceeds of insurance thereon, insurance claims and all
rights, claims and benefits against any Person relating thereto), other
rights to payments not otherwise included in the foregoing, and all
books, correspondence, files, records, invoices and other papers,
including without limitation all tapes, cards, computer runs, computer
programs, computer files and other papers, documents and records in the
possession or under the control of such Debtor or any computer bureau
or service company from time to time acting for such Debtor;
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provided, however, that notwithstanding anything to the contrary set forth
above, the Secured Party and the Lenders hereby agree that the term Collateral
shall not include the three Project Xxxxx (as defined in the JVEA) set forth on
Exhibit C to Schedule VIII until such time as the granting of a Lien against
such Project Xxxxx does not cause a breach of the JVEA (it being agreed to and
understood that the preceding proviso applies only to the subject Project Xxxxx
set forth on Exhibit C to Schedule VIII and does not apply with respect to any
other property or assets of any Debtor).
Section 4. Covenants; Remedies. In furtherance of the grant of the
pledge and security interest pursuant to Section 3 hereof, each Debtor hereby
agrees with the Secured Party as follows:
4.1. Delivery and Other Perfection; Maintenance, etc.
(a) Delivery of Instruments, Documents, Etc. Each Debtor shall
deliver and pledge to the Secured Party or its Representative any and
all Instruments, negotiable Documents, Chattel Paper and certificated
securities (accompanied by stock powers executed in blank) duly
endorsed and/or accompanied by such instruments of assignment and
transfer executed by such Debtor in such form and substance as the
Secured Party or its Representative may request; provided, that so long
as no Event of Default or Triggering Event shall have occurred and be
continuing, each Debtor may retain for collection in the ordinary
course of business any Instruments, negotiable Documents and Chattel
Paper received by such Debtor in the ordinary course of business, and
the Secured Party or its Representative shall, promptly upon request of
a Debtor, make appropriate arrangements for making any other
Instruments, negotiable Documents and Chattel Paper pledged by such
Debtor available to such Debtor for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the
extent deemed appropriate by the Secured Party or its Representative,
against trust receipt or like document). If a Debtor retains possession
of any Chattel Paper, negotiable Documents or Instruments pursuant to
the terms hereof, such Chattel Paper, negotiable Documents and
Instruments shall be marked with the following legend: "This writing
and the obligations evidenced or secured hereby are subject to the
security interest of Promethean Asset Management L.L.C., in its
capacity as collateral agent for the benefit of the Lenders, as secured
party."
(b) Other Documents and Actions. Each Debtor shall give,
execute, deliver, file and/or record any financing statement, notice,
instrument, document, agreement, Mortgage or other papers that may be
necessary or desirable (in the reasonable judgment of the Secured Party
or its Representative) to create, preserve, perfect or validate the
security interest granted pursuant hereto (or any security interest or
mortgage contemplated or required hereunder, including with respect to
Section 2(h) of this Agreement) or to enable the Secured Party or its
Representative to exercise and enforce the rights of the Secured Party
hereunder with respect to such pledge and security interest, provided
that notices to account debtors in respect of any Accounts or
Instruments shall be subject to the
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provisions of clause (e) below. Notwithstanding the foregoing each
Debtor hereby irrevocably authorizes the Secured Party at any time and
from time to time to file in any filing office in any jurisdiction any
initial financing statements and amendments thereto that (a) indicate
the Collateral (i) as all assets of such Debtor or words of similar
effect, regardless of whether any particular asset comprised in the
Collateral falls within the scope of Article 9 of the Uniform
Commercial Code of the State of New York or such jurisdiction, or (ii)
as being of an equal or lesser scope or with greater detail, and (b)
contain any other information required by part 5 of Article 9 of the
Uniform Commercial Code of the State of New York or any other State for
the sufficiency or filing office acceptance of any financing statement
or amendment, including (i) whether such Debtor is an organization, the
type of organization and any organization identification number issued
to such Debtor, and (ii) in the case of a financing statement filed as
a fixture filing or indicating Collateral as As-extracted Collateral or
timber to be cut, a sufficient description of real property to which
the Collateral relates. Each Debtor agrees to furnish any such
information to the Secured Party promptly upon request. Each Debtor
also ratifies its authorization for the Secured Party to have filed in
any jurisdiction any like initial financing statements or amendments
thereto if filed prior to the date hereof.
(c) Books and Records. Each Debtor shall maintain at its own
cost and expense complete and accurate books and records of the
Collateral, including, without limitation, a record of all payments
received and all credits granted with respect to the Collateral and all
other dealings with the Collateral. Upon the occurrence and during the
continuation of any Event of Default or Triggering Event, each Debtor
shall deliver and turn over any such books and records (or true and
correct copies thereof) to the Secured Party or its Representative at
any time on demand. Each Debtor shall permit any representative of the
Secured Party to inspect such books and records at any time during
reasonable business hours and will provide photocopies thereof at such
Debtor's expense to the Secured Party upon request of the Secured
Party.
(d) Motor Vehicles. Each Debtor shall, promptly upon acquiring
same, cause the Secured Party to be listed as the lienholder on each
certificate of title or ownership covering any items of Equipment,
including Motor Vehicles (or otherwise comply with the certificate of
title or ownership laws of the relevant jurisdiction issuing such
certificate of title or ownership in order to properly evidence and
perfect Secured Party's security interest in the assets represented by
such certificate of title or ownership); provided, however, that so
long as no Event of Default or Triggering Event has occurred and is
continuing, Debtors shall not be required to cause the Secured Party to
be listed as the lienholder on a certificate of title for any item of
Equipment, including a Motor Vehicle, which does not exceed a fair
market value of $30,000 individually (each such excluded item of
Equipment, an "Exempt Equipment Item"); provided, further, that once
the fair market value of all Exempt Equipment Items exceeds $1,000,000
in the aggregate, Debtors shall cause Secured Party to be listed as
lienholder (or otherwise comply with the certificate of title or
ownership laws of the relevant
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jurisdiction issuing such certificate of title or ownership in order to
properly evidence and perfect Secured Party's security interest in the
assets represented by such certificate of title or ownership) on each
certificate of title or ownership of an Exempt Equipment Item that,
when added to the fair market value of all Exempt Equipment Items,
would cause the fair market value of all Exempt Equipment Items to
exceed $1,000,000. With respect to all Motor Vehicles owned by Debtors
on the date of the Initial Closing, Debtors shall have forty-five (45)
days from the date of the Initial Closing to comply with the terms of
this Section 4.1(d).
(e) Notice to Account Debtors; Verification. (i) Upon the
occurrence and during the continuance of any Event of Default or
Triggering Event (or if any rights of set-off (other than set-offs
against an Account arising under the Contract giving rise to the same
Account) or contra accounts may be asserted), upon request of the
Secured Party or its Representative, each Debtor shall promptly notify
(and each Debtor hereby authorizes the Secured Party and its
Representative so to notify) each account debtor in respect of any
Accounts or Instruments or other Persons obligated on the Collateral
that such Collateral has been assigned to the Secured Party hereunder,
and that any payments due or to become due in respect of such
Collateral are to be made directly to the Secured Party, and (ii) the
Secured Party and its Representative shall have the right at any time
or times (but not more frequently than once per calendar year unless an
Event of Default or Triggering Event has occurred and is continuing) to
make direct verification with the account debtors or other Persons
obligated on the Collateral of any and all of the Accounts or other
such Collateral.
(f) Intellectual Property. Each Debtor represents and warrants
that the Copyrights, Patents and Trademarks listed on Schedules III, IV
and V, respectively, constitute all of the registered Copyrights and
all of the Patents and Trademarks now owned by such Debtor. If such
Debtor shall (i) obtain rights to any new patentable inventions, any
registered Copyrights or any Patents or Trademarks, or (ii) become
entitled to the benefit of any registered Copyrights or any Patents or
Trademarks or any improvement on any Patent, the provisions of this
Agreement above shall automatically apply thereto and such Debtor shall
give to Secured Party prompt written notice thereof. Each Debtor hereby
authorizes Secured Party to modify this Agreement by amending Schedules
III, IV and V, as applicable, to include any such registered Copyrights
or any such Patents and Trademarks. Each Debtor shall have the duty (i)
to prosecute diligently any patent, trademark, or service xxxx
applications pending as of the date hereof or hereafter, (ii) to make
application on unpatented but patentable inventions and on trademarks,
copyrights and service marks, as appropriate, (iii) to preserve and
maintain all rights in the Copyrights, Patents and Trademarks, to the
extent material to the operations of the business of such Debtor and
(iv) to ensure that the Copyrights, Patents and Trademarks are and
remain enforceable, to the extent material to the operations of the
business of such Debtor. Any expenses incurred in connection with such
Debtor's obligations under this Section 4.1(f) shall be borne by such
Debtor. Except for any such items that a Debtor reasonably
12
believes (using prudent industry customs and practices) are no longer
necessary for the on-going operations of its business, no Debtor shall
abandon any right to file a patent, trademark or service xxxx
application, or abandon any pending patent, trademark or service xxxx
application or any other Copyright, Patent or Trademark without the
written consent of Secured Party, which consent shall not be
unreasonably withheld.
(g) Further Identification of Collateral. Each Debtor will,
when and as often as requested by the Secured Party or its
Representative, furnish to the Secured Party or such Representative,
statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
the Secured Party or its Representative may reasonably request, all in
reasonable detail.
(h) Investment Property. Each Debtor will take any and all
actions required or requested by the Secured Party, from time to time,
to (i) cause the Secured Party to obtain exclusive control of any
Investment Property owned by such Debtor in a manner acceptable to the
Secured Party and (ii) obtain from any issuers of Investment Property
and such other Persons, for the benefit of the Secured Party, written
confirmation of the Secured Party's control over such Investment
Property. For purposes of this Section 4.1(h), the Secured Party shall
have exclusive control of Investment Property if (i) such Investment
Property consists of certificated securities and a Debtor delivers such
certificated securities to the Secured Party (with appropriate
endorsements if such certificated securities are in registered form);
(ii) such Investment Property consists of uncertificated securities and
either (x) a Debtor delivers such uncertificated securities to the
Secured Party or (y) the issuer thereof agrees, pursuant to
documentation in form and substance satisfactory to the Secured Party,
that it will comply with instructions originated by the Secured Party
without further consent by such Debtor, and (iii) such Investment
Property consists of security entitlements and either (x) the Secured
Party becomes the entitlement holder thereof or (y) the appropriate
securities intermediary agrees, pursuant to the documentation in form
and substance satisfactory to the Secured Party, that it will comply
with entitlement orders originated by the Secured Party without further
consent by any Debtor.
(i) Reserved.
(j) Commercial Tort Claims. Each Debtor shall promptly notify
Secured Party of any Commercial Tort Claim (as defined in the Uniform
Commercial Code) acquired by it that concerns a claim in excess of
$100,000 and unless otherwise consented to by Secured Party, such
Debtor shall enter into a supplement to this Agreement granting to
Secured Party a Lien on and security interest in such Commercial Tort
Claim.
4.2 Other Liens. Debtors will not create, permit or suffer to exist,
and will defend the Collateral against and take such other action as is
necessary to remove, any
13
Lien on the Collateral except Permitted Liens, and will defend the right, title
and interest of the Secured Party in and to the Collateral and in and to all
Proceeds thereof against the claims and demands of all Persons whatsoever.
4.3 Preservation of Rights. Whether or not any Event of Default or
Triggering Event has occurred or is continuing, the Secured Party and its
Representative may, but shall not be required to, take any steps the Secured
Party or its Representative deems necessary or appropriate to preserve any
Collateral or any rights against third parties to any of the Collateral,
including obtaining insurance of Collateral at any time when a Debtor has failed
to do so, and Debtors shall promptly pay, or reimburse the Secured Party for,
all expenses incurred in connection therewith.
4.4 Formation of Subsidiaries; Name Change; Location; Bailees.
(a) No Debtor shall form any subsidiary unless (i) such Debtor
pledges all of the stock of such subsidiary to the Secured Party (in
the case of Borrower, pursuant to the existing pledge agreement by
Borrower in favor of the Secured Party or, with respect to a Debtor
other than Borrower, pursuant to a pledge agreement in form and
substance acceptable to Secured Party), (ii) such subsidiary becomes a
party to this Agreement and all other applicable Security Documents and
(iii) the formation of such Subsidiary is not prohibited by the terms
of the Transaction Documents.
(b) No Debtor shall (i) reincorporate or reorganize itself
under the laws of any jurisdiction other than the jurisdiction in which
it is incorporated or organized as of the date hereof without the prior
written consent of Secured Party, or (ii) otherwise change its name,
identity or corporate structure (other than a change in name if, and
only if, such Debtor has given Secured Party thirty (30) days advance
written notice thereof and Secured Party has provided written
acknowledgment of receipt of such notice). Each Debtor will notify
Secured Party promptly in writing prior to any such change in the
proposed use by such Debtor of any tradename or fictitious business
name other than any such name set forth on Schedule II attached hereto.
(c) Except for the sale of Inventory in the ordinary course of
business and a sale of assets that complies with the terms of Section
4(s) of the Purchase Agreement and except as expressly permitted in the
Notes, each Debtor will keep the Collateral at the locations specified
in Schedule I. Each Debtor will give Secured Party thirty (30) day's
prior written notice of any change in such Debtor's chief place of
business or of any new location for any of the Collateral.
(d) If any Collateral is at any time in the possession or
control of any warehousemen, bailee, consignee or processor, such
Debtor shall, upon the request of Secured Party or its Representative,
notify such warehousemen, bailee, consignee or processor of the Lien
and security interest created hereby and shall instruct such Person to
hold all such Collateral for Secured Party's account subject to Secured
Party's instructions.
14
(e) Each Debtor acknowledges that it is not authorized to file
any financing statement or amendment or termination statement with
respect to any financing statement without the prior written consent of
Secured Party and agrees that it will not do so without the prior
written consent of Secured Party, subject to such Debtor's rights under
Section 9-509(d)(2) to the Uniform Commercial Code.
(f) No Debtor shall enter into any Contract that restricts or
prohibits the grant to Secured Party of a security interest in
Accounts, Chattel Paper, Instruments or payment intangibles or the
proceeds of the foregoing.
4.5 Bank Accounts and Securities Accounts.
(a) Other than as expressly set forth in the last sentence of
this Section 4.5(a) and in Section 4.5(c) below, on or prior to the
date hereof, (i) Debtors shall close all Deposit Accounts currently
maintained at LaSalle Bank National Association and (ii) the Secured
Party and each Debtor shall enter into an account control agreement or
securities account control agreement, as applicable, (each an "Account
Control Agreement"), in a form specified by the Secured Party, with
each financial institution with which such Debtor maintains from time
to time any Deposit Accounts (general or special), securities accounts,
brokerage accounts or other similar accounts, which financial
institutions are set forth on Schedule VI attached hereto. Pursuant to
the Account Control Agreements and pursuant hereto, each Debtor grants
and shall grant to the Secured Party a continuing lien upon, and
security interest in, all such accounts and all funds at any time paid,
deposited, credited or held in such accounts (whether for collection,
provisionally or otherwise) or otherwise in the possession of such
financial institutions, and each such financial institution shall act
as the Secured Party's agent in connection therewith. Following the
Closing Date, no Debtor shall establish any Deposit Account, securities
account, brokerage account or other similar account with any financial
institution unless prior thereto, the Secured Party and such Debtor
shall have entered into an Account Control Agreement with such
financial institution which purports to cover such account. Other than
xxxxx cash not exceeding $10,000 in the aggregate for all Debtors, each
Debtor shall deposit and keep on deposit all of its funds into a
Deposit Account which is subject to an Account Control Agreement;
provided, that, notwithstanding anything to the contrary contained in
this Agreement, for a period of ten (10) Business Days (or up to thirty
(30) days if said funds are on deposit in Deposit Accounts at Bank of
Blue Valley) after the Initial Closing, Debtors shall be permitted to
maintain up to $200,000 (exclusive of amounts on deposit in the Xxxx XX
Account and Returned Items Account described in Section 4.5(c) below)
in the aggregate for all Debtors on deposit in Deposit Accounts that
are not subject to an Account Control Agreement.
(b) Upon the Secured Party's request, each Debtor shall
establish lock-box or blocked accounts (collectively, "Blocked
Accounts") in such Debtor's name with such banks as are acceptable to
the Secured Party ("Collecting Banks"), subject to irrevocable
instructions in a form specified by the Secured
15
Party, to which the obligors of all Accounts shall directly remit all
payments on Accounts and in which such Debtor will immediately deposit
all cash payments for Inventory or other cash payments constituting
proceeds of Collateral in the identical form in which such payment was
made, whether by cash or check. In addition, the Secured Party may
establish one or more depository accounts at each Collecting Bank or at
a centrally located bank (collectively, the "Depository Account"). All
amounts held or deposited in the Blocked Accounts held by such
Collecting Bank shall be transferred to the Depository Account without
any further notice or action required by Secured Party. Subject to the
foregoing, each Debtor hereby agrees that all payments received by the
Secured Party whether by cash, check, wire transfer or any other
instrument, made to such Blocked Accounts or otherwise received by the
Secured Party and whether in respect of the Accounts or as proceeds of
other Collateral or otherwise will be the sole and exclusive property
of the Secured Party. Each Debtor, and any of its Affiliates,
employees, agents and other Persons acting for or in concert with such
Debtor shall, acting as trustee for the Secured Party, receive, as the
sole and exclusive property of the Secured Party, any moneys, checks,
notes, drafts or other payments relating to and/or proceeds of Accounts
or other Collateral which come into the possession or under the control
of such Debtor or any Affiliates, employees, agent or other Persons
acting for or in concert with such Debtor, and immediately upon receipt
thereof, such Debtor or Persons shall deposit the same or cause the
same to be deposited in kind, in a Blocked Account.
(c) Notwithstanding anything to the contrary contained in
Section 4.5(a) above, Infinity-Wyoming shall be permitted to maintain
the Deposit Account set forth in the following clause (i) and
Consolidated shall be permitted to maintain the Deposit Account set
forth in the following clause (ii), in each case without having same be
subject to an Account Control Agreement, so long as all of the
conditions set forth below are satisfied:
(i) until March 15, 2005, Infinity-Wyoming shall be
permitted to maintain deposit account number _______________
at US Bank National Association (the "Xxxx XX Account") so
long as (A) no more than $300,000 (less any amounts used to
satisfy Infinity-Wyoming's reimbursement obligations in
respect of the letter of credit referred to in the immediately
succeeding clause (B)) is on deposit therein at any one time,
(B) such Deposit Account shall only be maintained as a cash
collateral account for the letter of credit issued for the
account of Infinity-Wyoming by US Bank National Association in
the face amount of $______________ to ______________ as
beneficiary, and (C) the existence of such letter of credit
and the cash collateralization of Infinity-Wyoming's
obligations thereunder are permitted pursuant to the terms of
the Purchase Agreement; and
(ii) Consolidated shall be permitted to maintain
deposit account number ________________ at LaSalle Bank
National Association (the "Returned Items Account") so long as
(A) no more than $255,000 (less
16
any amounts used to satisfy Consolidated's reimbursement
obligations in respect of returned items referred to in the
immediately succeeding clause (B)) is on deposit therein at
any one time, (B) such Deposit Account shall only be
maintained as a cash collateral account to reimburse LaSalle
Bank National Association for any items deposited into Deposit
Accounts previously maintained at LaSalle Bank National
Association by Consolidated for which Consolidated received
provisional credit but such item was subsequently returned
unpaid, and (C) such Deposit Account is closed within
forty-five (45) days of the date hereof and all funds on
deposit therein not used to satisfy Consolidated's
reimbursement obligations owing to LaSalle Bank National
Association on account of any returned items described in the
immediately preceding clause (B) are returned to Consolidated
(or deposited into a Deposit Account covered by an Account
Control Agreement) simultaneously therewith.
4.6 Events of Default, Triggering Events, Etc. During the period during
which an Event of Default or Triggering Event shall have occurred and be
continuing:
(a) each Debtor shall, at the request of the Secured Party or
its Representative, assemble the Collateral and make it available to
Secured Party or its Representative at a place or places designated by
the Secured Party or its Representative which are reasonably convenient
to Secured Party or its Representative, as applicable, and such Debtor;
(b) the Secured Party or its Representative may make any
reasonable compromise or settlement deemed desirable with respect to
any of the Collateral and may extend the time of payment, arrange for
payment in installments, or otherwise modify the terms of, any of the
Collateral;
(c) the Secured Party shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Uniform Commercial Code is
in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured
party is entitled under the laws in effect in any jurisdiction where
any rights and remedies hereunder may be asserted, including, without
limitation, the right, to the maximum extent permitted by law, to: (i)
exercise all voting, consensual and other powers of ownership
pertaining to the Collateral as if the Secured Party were the sole and
absolute owner thereof (and each Debtor agrees to take all such action
as may be appropriate to give effect to such right) and (ii) to the
appointment of a receiver or receivers for all or any part of the
Collateral, whether such receivership be incident to a proposed sale or
sales of such Collateral or otherwise and without regard to the value
of the Collateral or the solvency of any person or persons liable for
the payment of the Liabilites secured by such Collateral. Each Debtor
hereby consents to the appointment of such receiver or receivers,
waives any and all defenses to such appointment and agrees that such
appointment shall in no manner impair, prejudice or otherwise affect
the rights of Secured Party under this Agreement. Each Debtor hereby
17
expressly waives notice of a hearing for appointment of a receiver and
the necessity for bond or an accounting by the receiver;
(d) the Secured Party or its Representative in their
discretion may, in the name of the Secured Party or in the name of a
Debtor or otherwise, demand, xxx for, collect or receive any money or
property at any time payable or receivable on account of or in exchange
for any of the Collateral, but shall be under no obligation to do so;
(e) the Secured Party or its Representative may take immediate
possession and occupancy of any premises owned, used or leased by a
Debtor and exercise all other rights and remedies of an assignee which
may be available to the Secured Party; and
(f) the Secured Party may, upon ten (10) Business Days' prior
written notice to Debtors of the time and place (which notice Debtors
hereby agree is commercially reasonable notification for purposes
hereof), with respect to the Collateral or any part thereof which shall
then be or shall thereafter come into the possession, custody or
control of the Secured Party or its Representative, sell, lease,
license, assign or otherwise dispose of all or any part of such
Collateral, at such place or places as the Secured Party deems best,
and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of
the time or place thereof (except such notice as is required above or
by applicable statute and cannot be waived), and the Secured Party or
anyone else may be the purchaser, lessee, licensee, assignee or
recipient of any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory
or otherwise), of Debtors, any such demand, notice and right or equity
being hereby expressly waived and released. 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 the sale, and such sale may be made at any
time or place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.6 shall be applied in accordance with Section 4.9 hereof.
4.7 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral are insufficient to cover the costs and
expenses of such realization and the payment in full of the Liabilities, Debtors
shall remain liable for any deficiency.
4.8 Private Sale. Each Debtor recognizes that the Secured Party may be
unable to effect a public sale of any or all of the Collateral consisting of
securities by reason of certain prohibitions contained in the Securities Act of
1933, as amended (the "Act"), and applicable state securities laws, but may be
compelled to resort to one or more private
18
sales thereof to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire such Collateral for their own account for
investment and not with a view to the distribution or resale thereof. Each
Debtor acknowledges and agrees that any such private sale may result in prices
and other terms less favorable to the seller than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner. The
Secured Party shall be under no obligation to delay a sale of any of the
Collateral to permit a Debtor to register such Collateral for public sale under
the Act, or under applicable state securities laws, even if Debtors would agree
to do so. The Secured Party shall not incur any liability as a result of the
sale of any such Collateral, or any part thereof, at any private sale provided
for in this Agreement conducted in a commercially reasonable manner, and each
Debtor hereby waives any claims against the Secured Party arising by reason of
the fact that the price at which the Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Liabilities, even if the
Secured Party accepts the first offer received and does not offer the Collateral
to more than one offeree.
Each Debtor further agrees to do or cause to be done all such other
acts and things as may be necessary to make such sale or sales of any portion or
all of any such Collateral valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at such Debtor's
expense, provided that Debtors shall be under no obligation to take any action
to enable any or all of such Collateral to be registered under the provisions of
the Act. Each Debtor further agrees that a breach of any of the covenants
contained in this Section 4.8 will cause irreparable injury to the Secured
Party, that the Secured Party has no adequate remedy at law in respect of such
breach and, as a consequence, agrees that each and every covenant contained in
this Section 4.8 shall be specifically enforceable against Debtors, and each
Debtor hereby waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no Event of
Default or Triggering Event has occurred and is continuing.
4.9 Application of Proceeds. The proceeds of any collection, sale or
other realization of all or any part of the Collateral, and any other cash at
the time held by the Secured Party under this Agreement, shall be applied in the
manner set forth in the Notes (or, if not so set forth, in a manner acceptable
to, and at the election of, the Secured Party).
4.10 Attorney-in-Fact. Each Debtor hereby irrevocably constitutes and
appoints the Secured Party, with full power of substitution, as its true and
lawful attorney-in-fact with full irrevocable power and authority in the place
and stead of such Debtor and in the name of such Debtor or in its own name, from
time to time in the discretion of the Secured Party, for the purpose of carrying
out the terms of this Agreement, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to perfect or protect any security interest granted hereunder or to
maintain the perfection or priority of any security interest
19
granted hereunder, and, without limiting the generality of the foregoing, hereby
gives the Secured Party the power and right, on behalf of such Debtor, without
notice to or assent by such Debtor, to do the following upon the occurrence and
during the continuation of any Event of Default or Triggering Event:
(a) to take any and all appropriate action and to execute and
deliver any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement;
(b) to ask, demand, collect, receive and give acquittance and
receipts for any and all moneys due and to become due under any
Collateral and, in the name of such Debtor or its own name or
otherwise, to take possession of and endorse and collect any checks,
drafts, notes, acceptances or other Instruments for the payment of
moneys due under any Collateral and to file any claim or to take any
other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Secured Party for the purpose of collecting
any and all such moneys due under any Collateral whenever payable and
to file any claim or to take any other action or proceeding in any
court of law or equity or otherwise deemed appropriate by the Secured
Party for the purpose of collecting any and all such moneys due under
any Collateral whenever payable;
(c) to pay or discharge charges or liens levied or placed on
or threatened against the Collateral, to effect any insurance called
for by the terms of this Agreement and to pay all or any part of the
premiums therefor;
(d) to direct any party liable for any payment under any of
the Collateral to make payment of any and all moneys due, and to become
due thereunder, directly to the Secured Party or as the Secured Party
shall direct, and to receive payment of and receipt for any and all
moneys, claims and other amounts due, and to become due at any time, in
respect of or arising out of any Collateral;
(e) to sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtors, assignments, verifications and notices in connection with
accounts and other Documents constituting or relating to the
Collateral;
(f) to commence and prosecute any suits, actions or
proceedings at law or in equity in any court of competent jurisdiction
to collect the Collateral or any part thereof and to enforce any other
right in respect of any Collateral;
(g) to defend any suit, action or proceeding brought against a
Debtor with respect to any Collateral;
(h) to settle, compromise or adjust any suit, action or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Secured Party may deem appropriate;
20
(i) to the extent that a Debtor's authorization given in
Section 4.1(b) of this Agreement is not sufficient to file such
financing statements with respect to this Agreement, with or without
such Debtor's signature, or to file a photocopy of this Agreement in
substitution for a financing statement, as the Secured Party may deem
appropriate and to execute in such Debtor's name such financing
statements and amendments thereto and continuation statements which may
require such Debtor's signature; and
(j) generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral as fully
and completely as though the Secured Party were the absolute owners
thereof for all purposes, and to do, at the Secured Party's option and
at such Debtor's expense, at any time, or from time to time, all acts
and things which the Secured Party reasonably deems necessary to
protect, preserve or realize upon the Collateral and the Secured
Party's lien therein, in order to effect the intent of this Agreement,
all as fully and effectively as such Debtor might do.
Each Debtor hereby ratifies, to the extent permitted by law, all that
such attorneys lawfully do or cause to be done by virtue hereof. The power of
attorney granted hereunder is a power coupled with an interest and shall be
irrevocable until the Liabilities are indefeasibly paid in full in cash and this
Agreement is terminated in accordance with Section 4.12 hereof.
Each Debtor also authorizes the Secured Party, at any time from and
after the occurrence and during the continuation of any Event of Default or
Triggering Event, (x) to communicate in its own name with any party to any
Contract with regard to the assignment of the right, title and interest of such
Debtor in and under the Contracts hereunder and other matters relating thereto
and (y) to execute, in connection with any sale of Collateral provided for in
Section 4.6 hereof, any endorsements, assignments or other instruments of
conveyance or transfer with respect to the Collateral.
4.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, each Debtor shall:
(a) file such financing statements, assignments for security
and other documents in such offices as may be necessary or as the
Secured Party or the Representative may request to perfect the security
interests granted by Section 3 of this Agreement;
(b) at Secured Party's request, deliver to the Secured Party
or its Representative the originals of all Instruments together with,
in the case of Instruments constituting promissory notes, allonges
attached thereto showing such promissory notes to be payable to the
order of a blank payee; and
(c) at Secured Party's request, but subject to the provisions
of Section 4.1(d) above, deliver to the Secured Party or its
Representative the originals of all
21
Motor Vehicle titles, duly endorsed indicating the Secured Party's
interest therein as lienholder.
4.12 Termination. This Agreement and the Liens and security interests
granted hereunder shall not terminate until the termination of the Purchase
Agreement and the Notes and the full and complete performance and indefeasible
satisfaction of all the Liabilities (including, without limitation, the payment
in full in cash of all Liabilities), whereupon the Secured Party shall forthwith
cause to be assigned, transferred and delivered, against receipt but without any
recourse, warranty or representation whatsoever, any remaining Collateral to or
on the order of Debtors. The Secured Party shall also execute and deliver to
Debtors upon such termination and at Debtors' expense such Uniform Commercial
Code termination statements, certificates for terminating the liens on the Motor
Vehicles (if any) and such other documentation as shall be reasonably requested
by Debtors to effect the termination and release of the Liens and security
interests in favor of the Secured Party affecting the Collateral.
4.13 Further Assurances. (a) At any time and from time to time, upon
the written request of the Secured Party or its Representative, and at the sole
expense of Debtors, Debtors will promptly and duly execute and deliver any and
all such further instruments, documents and agreements and take such further
actions as the Secured Party or its Representative may reasonably require in
order for the Secured Party to obtain the full benefits of this Agreement and of
the rights and powers herein granted in favor of the Secured Party, including,
without limitation, using Debtors' best efforts to secure all consents and
approvals necessary or appropriate for the assignment to the Secured Party of
any Collateral held by Debtors or in which a Debtor has any rights not
heretofore assigned, the filing of any financing or continuation statements
under the Uniform Commercial Code with respect to the liens and security
interests granted hereby, transferring Collateral to the Secured Party's
possession (if a security interest in such Collateral can be perfected solely by
possession), placing the interest of the Secured Party as lienholder on the
certificate of title of any Motor Vehicle (subject to the provisions of Section
4.1(d) above) and obtaining waivers of liens from landlords and mortgagees. Each
Debtor also hereby authorizes the Secured Party and its Representative to file
any such financing or continuation statement without the signature of such
Debtor to the extent permitted by applicable law.
(b) Upon the request of the Secured Party, each Debtor shall procure
insurers' acknowledgments of any assignments of key man life insurance policies
which may be assigned to the Secured Party as additional security for the
Liabilities (to the extent any such assignments of key man life insurance
policies are required pursuant to the terms of the Transaction Documents) and
will take all such further action as required by any insurer or the Secured
Party in connection with any such assignment.
4.14 Limitation on Duty of Secured Party. The powers conferred on the
Secured Party under this Agreement are solely to protect the Secured Party's
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. The Secured Party shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither the
Secured Party nor its Representative nor any
22
of their respective officers, directors, employees or agents shall be
responsible to Debtors for any act or failure to act, except for willful
misconduct. Without limiting the foregoing, the Secured Party and any
Representative shall be deemed to have exercised reasonable care in the custody
and preservation of the Collateral in their possession if such Collateral is
accorded treatment substantially equivalent to that which the relevant Secured
Party or any Representative, in its individual capacity, accords its own
property consisting of the type of Collateral involved, it being understood and
agreed that neither the Secured Party nor any Representative shall have any
responsibility for taking any necessary steps (other than steps taken in
accordance with the standard of care set forth above) to preserve rights against
any Person with respect to any Collateral.
Also without limiting the generality of the foregoing, neither the
Secured Party nor any Representative shall have any obligation or liability
under any Contract or license by reason of or arising out of this Agreement or
the granting to the Secured Party of a security interest therein or assignment
thereof or the receipt by the Secured Party or any Representative of any payment
relating to any Contract or license pursuant hereto, nor shall the Secured Party
or any Representative be required or obligated in any manner to perform or
fulfill any of the obligations of Debtors under or pursuant to any Contract or
license, or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it or the sufficiency of any performance
by any party under any Contract or license, or to present or file any claim, or
to take any action to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
Section 5. Miscellaneous.
5.1 No Waiver. No failure on the part of the Secured Party or any of
its Representatives to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Secured Party or
any of its Representatives of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The rights and remedies hereunder provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law.
5.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws and decisions of the State of New York,
without regard to conflict of law principles thereof.
5.3 Notices. All notices, approvals, requests, demands and other
communications hereunder shall be delivered or made in the manner set forth in,
and shall be effective in accordance with the terms of, the Purchase Agreement;
provided, that, to the extent any such communication is being made or sent to a
Debtor that is not the Borrower, such communication shall be effective as to
such Debtor if made or sent to the Borrower in accordance with the foregoing.
23
5.4 Amendments, Etc. The terms of this Agreement may be waived, altered
or amended only by an instrument in writing duly executed by the Debtor sought
to be charged or benefitted thereby and the Secured Party. Any such amendment or
waiver shall be binding upon the Secured Party and the Debtor sought to be
charged or benefitted thereby and their respective successors and assigns.
5.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each of the
parties hereto, provided, that no Debtor shall assign or transfer its rights
hereunder without the prior written consent of the Secured Party. Secured Party,
in its capacity as collateral agent, may assign its rights hereunder without the
consent of Debtors, in which event such assignee shall be deemed to be Secured
Party hereunder with respect to such assigned rights.
5.6 Counterparts; Headings. This Agreement may be authenticated in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and any of the parties hereto may authenticate this Agreement by
signing any such counterpart. This Agreement may be authenticated by manual
signature, facsimile or, if approved in writing by Secured Party, electronic
means, all of which shall be equally valid. The headings in this Agreement are
for convenience of reference only and shall not alter or otherwise affect the
meaning hereof.
5.7 Severability. If any provision hereof is invalid and unenforceable
in any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Secured Party and its
Representative in order to carry out the intentions of the parties hereto as
nearly as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
5.9 SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS.
(A) EACH DEBTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF
ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING IN THE CITY OF NEW
YORK, BOROUGH OF MANHATTAN IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND EACH DEBTOR HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF SECURED PARTY TO BRING PROCEEDINGS AGAINST ANY DEBTOR IN THE COURTS OF
ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY A DEBTOR AGAINST SECURED
PARTY OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN
ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTION
24
WITH THIS AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK (AND
SECURED PARTY HEREBY SUBMITS TO THE JURISDICTION OF SUCH COURT). EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO
PROCESS BEING SERVED IN ANY SUCH ACTION OR PROCEEDING BY MAILING A COPY THEREOF
TO SUCH PARTY AT THE ADDRESS FOR NOTICES TO IT IN ACCORDANCE WITH SECTION 5.3 OF
THIS AGREEMENT AND AGREES THAT SUCH NOTICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED
TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
5.10 WAIVER OF RIGHT TO TRIAL BY JURY. EACH DEBTOR AND SECURED PARTY
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION
OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH DEBTOR
AND SECURED PARTY EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.
5.11 Joint and Several. The obligations, covenants and agreements of
Debtors hereunder shall be the joint and several obligations, covenants and
agreements of each Debtor, whether or not specifically stated herein.
5.12 Collateral Agent. Each Lender hereby irrevocably appoints and
authorizes the Secured Party to act as collateral agent (the "Collateral Agent")
on its behalf under this Agreement and to enter into each of the instruments,
documents and agreements, including any pledge agreement, guaranty, financing
statements, mortgage, Account Control Agreement or any other Security Documents
(the "Financing Documents"), to which Secured Party is a party (including in its
capacity as Collateral Agent) on such Lender's behalf and to take such actions
as Collateral Agent on such Lender's behalf and to exercise such powers under
the Financing Documents as are delegated to Collateral Agent or Secured Party
(as applicable) by the terms thereof, together with all such powers as are
reasonably incidental thereto. Secured Party is authorized and empowered
25
to amend, modify, or waive any provisions of this Agreement or the other
Financing Documents on behalf of the Funds.
5.13 No Strict Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
5.14 Entire Agreement; Amendments. This Agreement supersedes all other
prior oral or written agreements between each Debtor, Secured Party, the Lenders
and their affiliates and persons acting on their behalf with respect to the
matters discussed herein, and this Agreement and the Transaction Documents and
instruments referenced herein and therein contain the entire understanding of
the parties with respect to the matters covered herein and therein.
[rest of page intentionally left blank; signature page follows]
26
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first above
written.
DEBTORS:
INFINITY, INC., a Colorado corporation
By:_______________________________
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
FEIN:_____________________________
CONSOLIDATED OIL WELL SERVICES, INC.,
a Kansas corporation
By:_______________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
FEIN:_____________________________
CIS-OKLAHOMA, INC., a Kansas corporation
By:_______________________________
Name: Xxxxxxx X. Xxxx
Title: President
FEIN:_____________________________
INFINITY OIL & GAS OF WYOMING, INC.,
a Wyoming corporation
By:_______________________________
Name: Xxxxx X. Xxxxx
Title: President
FEIN:_____________________________
INFINITY OIL & GAS OF KANSAS, INC.,
a Kansas corporation
By:_______________________________
Name: Xxxxxxx X. Xxxx
Title: President
FEIN:_____________________________
Security Agreement
INFINITY OIL AND GAS OF TEXAS, INC.,
a Delaware corporation
By:_______________________________
Name: Xxxxx X. Xxxxx
Title: President
FEIN:_____________________________
Security Agreement
SECURED PARTY:
PROMETHEAN ASSET MANAGEMENT L.L.C., in its
capacity as collateral agent for
the Lenders
By:________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Partner and Authorized Signatory
LENDERS:
Solely for the purposes of Section 5.12
HFTP INVESTMENT L.L.C.
By: Promethean Asset Management
L.L.C., its Investment Manager
By:_______________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Partner and Authorized Signatory
AG DOMESTIC CONVERTIBLES, L.P.
By: Xxxxxx, Xxxxxx & Co., L.P.,
Managing Member of the General
Partner
By:_______________________________
Name:_____________________________
Title:______________________________
AG OFFSHORE CONVERTIBLES, LTD.
By: Xxxxxx, Xxxxxx & Co., L.P.,
Director
By:_______________________________
Name:_____________________________
Title:______________________________
Security Agreement
EXHIBIT A
Form of Joinder
Joinder to Security Agreement
The undersigned, ______________________________, hereby joins in the
execution of that certain Security Agreement dated as of ___________, 2005 (the
"Security Agreement") by Infinity, Inc., a Colorado corporation, Consolidated
Oil Well Services, Inc., a Kansas corporation, CIS-Oklahoma, Inc., a Kansas
corporation, Infinity Oil & Gas of Wyoming, Inc., a Wyoming corporation,
Infinity Oil and Gas of Texas, Inc., a Delaware corporation, Infinity Oil & Gas
of Kansas, Inc., a Kansas corporation, and _______________________, the Lenders
(as defined therein), and each other Person that becomes a Debtor thereunder
after the date hereof and pursuant to the terms thereof, to and in favor of
Promethean Asset Management L.L.C., in its capacity as collateral agent for the
Lenders. By executing this Joinder, the undersigned hereby agrees that it is a
Debtor thereunder and agrees to be bound by all of the terms and provisions of
the Security Agreement.
The undersigned represents and warrants to Secured Party that:
(a) all of the Equipment, Inventory and Goods owned by such Debtor is
located at the places as specified on Schedule I attached hereto;
(b) except as disclosed on Schedule I, none of such Collateral is in
the possession of any bailee, warehousemen, processor or consignee;
(c) the chief place of business, chief executive office and the office
where such Debtor keeps its books and records are located at the place specified
on Schedule I;
(d) such Debtor (including any Person acquired by such Debtor) does not
do business or has not done business during the past five years under any
tradename or fictitious business name, except as disclosed on Schedule II;
(e) all Copyrights, Patents and Trademarks owned or licensed by the
undersigned are listed in Schedules III, IV and V, respectively;
(f) all Deposit Accounts, securities accounts, brokerage accounts and
other similar accounts maintained by such Debtor, and the financial institutions
at which such accounts are maintained, are listed on Schedule VI;
(g) all Commercial Tort Claims of such Debtor are listed on Schedule
VII;
(h) all interests in real property and mining rights held by such
Debtor are listed on Schedule VIII; and
Security Agreement
(i) all other representations and warranties made by the Debtors in the
Security Agreement are true, complete and correct in all respects as of the date
hereof.
________________, a _____ corporation
By:______________________________
Title:___________________________
FEIN:____________________________
Security Agreement
SCHEDULE B
LENDER'S NAME LENDER'S ADDRESS
AND FACSIMILE NUMBER
HFTP Investment L.L.C. c/o Promethean Asset Management L.L.C.
000 Xxxxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AG Domestic Convertibles, L.P. c/o Xxxxxx, Xxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AG Offshore Convertibles, Ltd. c/o Xxxxxx, Xxxxxx & Co.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Security Agreement
SCHEDULE I
TO
SECURITY AGREEMENT
UCC Financing Statements; Location of Equipment, Inventory, Goods and Books and
Records; Goods in Possession of Consignees, Bailees, Warehousemen, Agents and
Processors; Debtors' Legal Names; State of Incorporation;
Organizational Identification Number; Chief Executive Office.
I. DEBTOR: _______________________________________
1 Legal Name of Debtor: ________________________
2 State of Incorporation: ________________________
3 Organizational Identification Number: ________________________
4 Chief Executive Office: ________________________
5 Location of Books and Records: ________________________
6 Locations of Equipment, Inventory ________________________
and Goods: ________________________
________________________
7 Locations of Goods in Possession of ________________________
Consignees, Bailees, Warehousemen, ________________________
Agents and Processors (including ________________________
names of such consignees, bailees,
etc.): ________________________
8 Jurisdictions For UCC Filings: ________________________
Security Agreement
SCHEDULE II
TO
SECURITY AGREEMENT
Tradenames and Fictitious Names
(Present and Past Five Years)
1 _______________________________: ________________________
________________________
Security Agreement
SCHEDULE III
TO
SECURITY AGREEMENT
U.S. Copyright Registrations; Foreign Copyright Registrations; U.S. Copyright
Applications; Foreign Copyright Applications; Copyright Licenses
U.S. COPYRIGHT REGISTRATIONS
XXXXXX XXXX REGISTRATION NUMBER REGISTRATION DATE
------ ---- ------------------- -----------------
FOREIGN COPYRIGHT REGISTRATIONS
XXXXXX XXXX COUNTRY REGISTRATION NUMBER REGISTRATION DATE
------ ---- ------- ------------------- -----------------
U.S. COPYRIGHT APPLICATIONS
APPLICATION APPLICATION
XXXXXX XXXX NUMBER DATE
------ ---- ----------- -----------
FOREIGN COPYRIGHT APPLICATIONS
XXXXXX XXXX COUNTRY APPLICATION NUMBER APPLICATION DATE
------ ---- ------- ------------------- -----------------
Security Agreement
COPYRIGHT LICENSES
LICENSED MARKS NAME OF AGREEMENT PARTIES DATE OF AGREEMENT
-------------- ----------------- ------- -----------------
Security Agreement
SCHEDULE IV
TO
SECURITY AGREEMENT
U.S. Patent Registrations; Foreign Patent Registrations; U.S. Patent
Applications; Foreign Patent Applications; Patent Licenses
U.S. PATENT REGISTRATIONS
REGISTRATION REGISTRATION
HOLDER PATENT NUMBER DATE
------ ------ ------------ ------------
FOREIGN PATENT REGISTRATIONS
HOLDER PATENT COUNTRY REGISTRATION NUMBER REGISTRATION DATE
------ ------ ------- ------------------- -----------------
U.S. PATENT APPLICATIONS
APPLICATION APPLICATION
HOLDER PATENT NUMBER DATE
------ ------ ------------ ------------
FOREIGN PATENT APPLICATIONS
HOLDER PATENT COUNTRY APPLICATION NUMBER APPLICATION DATE
------ ------ ------- ------------------ ----------------
Security Agreement
PATENT LICENSES
LICENSED PATENTS NAME OF AGREEMENT PARTIES DATE OF AGREEMENT
---------------- ----------------- ------- -----------------
Security Agreement
SCHEDULE V
TO
SECURITY AGREEMENT
U.S. Trademark Registrations; Foreign Trademark Registrations; U.S. Trademark
Applications; Foreign Trademark Applications; Trademark Licenses
U.S. TRADEMARK REGISTRATIONS
REGISTRATION REGISTRATION
XXXXXX XXXX NUMBER DATE
------ ---- ------------ ------------
FOREIGN TRADEMARK REGISTRATIONS
XXXXXX XXXX COUNTRY REGISTRATION NUMBER REGISTRATION DATE
------ ---- ------- ------------------- -----------------
U.S. TRADEMARK APPLICATIONS
APPLICATION APPLICATION
XXXXXX XXXX NUMBER DATE
------ ---- ------------ ------------
FOREIGN TRADEMARK APPLICATIONS
XXXXXX XXXX COUNTRY APPLICATION NUMBER APPLICATION DATE
------ ---- ------- ------------------ ----------------
Security Agreement
TRADEMARK LICENSES
LICENSED MARKS NAME OF AGREEMENT PARTIES DATE OF AGREEMENT
-------------- ----------------- ------- -----------------
Security Agreement
SCHEDULE VI
TO
SECURITY AGREEMENT
Depository Accounts and Other Accounts
Type of Account (with general
Name of Account Holder Bank description) Account Number
---------------------- ---- ------------------------------ --------------
SCHEDULE VII
TO
SECURITY AGREEMENT
Commercial Tort Claims
Security Agreement
SCHEDULE VIII
TO
SECURITY AGREEMENT
Interests in Real Property and Mining Rights
