Exhibit 10.39
SECURITY AGREEMENT
This SECURITY AGREEMENT (the "Security Agreement") dated as of October 25,
2001, by and between Polar Molecular Corporation, a Delaware corporation (the
"Borrower") and Affiliated Investments, L.L.C., a Michigan limited liability
company (the "Lender").
RECITALS
WHEREAS, the Borrower has requested, and the Lender has agreed to make a
loan to the Borrower on the terms and conditions set forth in a Purchase
Agreement of even date herewith by and between the Borrower and the Lender (the
"Purchase Agreement") and the Promissory Note of even date herewith (the
"Note"); and
WHEREAS, the Borrower is prohibited from granting any liens or security
interests in the Collateral (as such term is defined below) until the release of
the lien and security interest granted by the Borrower to certain parties
pursuant to the terms of that certain Security Agreement dated January 30, 2001
(the "Existing Security Agreement"); and
WHEREAS, the Borrower has agreed in the Purchase Agreement and the Note to
grant the security interest in the Collateral contemplated by this Security
Agreement to be effective upon the release of the existing lien and security
interest granted pursuant to the Existing Security Agreement; and
WHEREAS, the Borrower intends to use the proceeds from this loan together
with the proceeds of another loan from Xxxxxxxx Holdings, Inc. ("Xxxxxxxx") to
redeem the Borrower's Series B Preferred Stock; and
WHEREAS, in connection with the Xxxxxxxx loan the Company has granted a
lien and security interest in the Collateral that is junior to the lien and
security interest granted by this Security Agreement, each of which are to
become effective upon the redemption of the Company's Series B Preferred Stock.
NOW, THEREFORE, in consideration of the promises set forth therein and
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower hereby agrees as
follows:
AGREEMENT
Section 1. Effective Date. This Security Agreement shall not become
effective and no security interest hereunder shall attach until the redemption
of the Company's Series B Preferred Stock. The date of such release shall be the
"Effective Date" for purposes of this Security Agreement, and none of the
grants, assurances, representations or warranties provided for herein shall
become effective until the Effective Date.
Section 2. Grant of Security. The Borrower hereby assigns and pledges to
the Lender, and hereby grants to the Lender a first lien on and security
interest in, all of the Borrower's right, title and interest in and to the
following items, whether now owned or hereafter acquired (collectively, the
"Collateral"):
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(a) All accounts (whether or not earned by performance), letters of
credit, contract rights, chattel paper, instruments, securities, documents,
securities accounts, security entitlements, commodity contracts, commodity
accounts, investment property and all other forms of obligations at any time
owing to such borrower, all guaranties and other security therefor, all
merchandise returned or repossessed by Borrower, and all rights of stoppage in
transit and all other rights or remedies of an unpaid vendor, lienor or secured
party (collectively referred to herein as "Accounts").
(b) All goods, merchandise or other personal property, to be furnished
under any contract of service or held for sale or lease (including without
limitation all raw materials, work in process, finished goods and goods in
transit, and including without limitation all farm products), and all materials
and supplies of every kind and description used in Borrower's operations or
owned by Borrower and any interests in any of the foregoing, and all
attachments, accessories, accessions, replacements, substitutions, additions or
improvements to any of the foregoing, wherever located (collectively referred to
herein as "Inventory").
(c) All machinery, molds, machine tools, motors, furniture, equipment,
furnishings, fixtures, trade fixtures, motor vehicles, tools, parts, dies, jigs,
goods and other goods (other than Inventory) of every kind and description used
in Borrower's operations or owned by Borrower and any interest in any of the
foregoing, and all attachments, accessories, accessions, replacements,
substitutions, additions, or improvements, to any of the foregoing, wherever
located (collectively referred to herein as "Equipment").
(d) All rights and interest in and to all patents, trademarks (and the
goodwill of the business symbolized thereby; and with respect to the intent to
use applications, the entire business to which such applications and the marks
subject thereto as required by 15 U.S.C. (S) 1060), names, trade names, domain
names, copyrights, registrations, licenses, franchises, applications for any of
the foregoing, inventions, designs, drawings, blueprints, trade secrets,
goodwill, choses in action, contract rights, documents or certificates of title,
causes of action, corporate or other business records, deposit accounts,
investment property, customer lists, security and other deposits, rights in all
litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter arising
therefrom, all claims of such Borrower against Lender, rights to purchase or
sell real or personal property, rights as a licensor or licensee of any kind,
royalties, telephone numbers, proprietary information, purchase orders, and all
insurance policies and claims (including without limitation life insurance, key
man insurance, credit insurance, liability insurance, property insurance and
other insurance), tax refunds and claims, computer programs, discs, tapes and
tape files, claims under guarantees, security interests or other security held
by or granted to such Borrower, all rights to indemnification and all other
intangible property of every kind and nature (other than Accounts), including
without limitation, (i) the intellectual property listed on Schedule I hereto,
accounts and all money and all property now or at any time in the future in
Lender's possession (including claims and credit balances) (collectively
referred to herein as "General Intangibles").
(e) All security for the payment of any of the foregoing, and all
goods which gave or will give rise to any of the foregoing or are evidenced,
identified, or represented therein or thereby.
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(f) All real estate or other real property now or hereafter acquired
by Borrower.
(g) All assets or other property similar to any of the foregoing
hereafter acquired by Borrower.
(h) All other assets or property of Borrower no otherwise described
above, whether now owned or hereafter acquired.
(i) All proceeds of any of the foregoing (including proceeds of any
insurance policies, proceeds of proceeds, and claims against third parties), all
products of any of the foregoing, and all books and records related to any of
the foregoing.
In each case, the foregoing shall be covered by this Security Agreement,
whether Borrower's ownership or other rights therein are presently held or
hereafter acquired (by operation of law or otherwise) and howsoever Borrower's
interests therein may arise or appear (whether by ownership, security interest,
claim or otherwise).
Section 3. Security for Liabilities. This Security Agreement secures the
payment of (i) all obligations of the Borrower now or hereafter existing under
the Note, whether for principal, interest, expenses or otherwise, and (ii) all
obligations of the Borrower now or hereafter existing under this Security
Agreement (all such obligations, together with the obligations, being the
"Liabilities"). Without limiting the generality of the foregoing, this Security
Agreement secures the payment of all amounts which constitute part of the
Liabilities which are now or at any time hereafter owing by the Borrower to the
Lender under the Note.
Section 4. Representations and Warranties. The Borrower represents and
warrants as of the Effective Date:
(a) Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. The address of the
chief place of business and chief executive office of the Borrower is 0000
X. Xxxxxx. Xxxxx 000 Xxxxxx, Xxxxxxxx 00000.
(b) The Borrower is the legal and beneficial owner of the Collateral
free and clear of any lien, security interest, option or other charge or
encumbrance except for the security interest created by this Security
Agreement, and the security interest to be granted to Xxxxxxxx under that
certain Security Agreement between the Company and Xxxxxxxx (the "Xxxxxxxx
Security Agreement") effective as of October __, 2001. No effective
financing statement or other document similar in effect covering all or any
part of the Collateral is on file in any recording office, except such as
may have been filed in favor of the Lender related to this Security
Agreement or as may be filed in favor of Xxxxxxxx related to the Xxxxxxxx
Security Agreement. The Borrower's exact full legal name is, and for the
previous five year period has been as set forth in the first paragraph of
this Security Agreement. Borrower has no trade names or styles.
(c) This Security Agreement creates a valid security interest in the
Collateral
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which, upon the full release of the security interest granted by the
Existing Security Agreement and upon the filing of a UCC-1 Financing
Statement pursuant to the applicable provisions of the UCC, shall
constitute a perfected first priority security interest in the Collateral
securing the payment of the Liabilities.
(d) As of the date of the closing of the transactions contemplated by
the Purchase Agreement, other than the release of the security interest
granted by the Existing Security Agreement, no consent of any other person
or entity and no authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is
required (i) for the grant by the Borrower of the security interest granted
hereby or for the execution, delivery or performance of this Security
Agreement by the Borrower, (ii) for the perfection or maintenance of the
security interest created hereby (including the first priority nature of
such security interest, other than the filing of UCC financing Statements
describing the Collateral, in accordance with the applicable provisions of
the UCC) or (iii) for the exercise by the Lender of its rights and remedies
hereunder.
Section 5. Further Assurances.
(a) The Borrower agrees that after the Effective Date from time to
time, at the expense of the Borrower, the Borrower will promptly execute
and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Lender may
reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Lender to
exercise and enforce its rights and remedies hereunder with respect to any
Collateral. Without limiting the generality of the foregoing, upon the
Effective Date, the Borrower will upon such request, execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Lender
may request, in order to perfect and preserve the security interest granted
or purported to be granted hereby.
(b) As of the Effective Date, the Borrower hereby authorizes the
Lender to file one or more financing or continuation statements, and
amendments thereto, related to all or any part of the Collateral without
the signature of the Borrower where permitted by law. A photocopy or other
reproduction of this Security Agreement or any financing statement covering
the Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law.
(c) The Borrower will furnish to the Lender from time to time
statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Lender may
reasonably request, all in reasonable detail.
Section 6. Location of Collateral. The Borrower shall keep its chief place
of business and chief executive office and the office where it keeps its records
concerning the Collateral, if any, at the locations referred to in Section 4(a)
or, upon 30 days' prior written notice to the Lender, at any other locations in
a jurisdiction where all action required by
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Section 5 shall have been taken with respect to the Collateral. The Borrower
shall not change its name or its jurisdiction of incorporation unless prior
written notice has been provided to Lender.
Section 7. Transfers and Other Liens. The Borrower shall not (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Collateral, or (ii) after the Effective Date,
create or permit to exist any lien, security interest, option or other charge or
encumbrance upon or with respect to any of the Collateral with rights superior
to those granted to Lender under this Security Agreement. Lender acknowledges
and accepts that Borrower has granted a lien and security interest in the
Collateral to Xxxxxxxx that is junior to the rights granted to Lender under this
Security Agreement. The security interest granted hereby will become effective
upon the redemption of the Company's Series B Preferred Stock.
Section 8. Events of Default. The continuation of any of the following
after 10 days written notice to the Borrower shall constitute an "Event of
Default" hereunder:
(a) The Borrower shall fail to pay the Liabilities or fail to perform
any obligations hereunder, or under the Note;
(b) Any representation, warranty, or statement made by Borrower herein
or in connection with this Security Agreement or the Note shall prove to have
been incorrect or untrue in any material respect on or as of the date made, or
as of the Effective Date, as applicable;
(c) The Borrower shall incur any lien, security interest or other
charge or encumbrance against the Collateral without the written consent of the
Lender;
(d) The Borrower shall sell any of the Collateral; or
(e) The Borrower shall default in the observance or performance of any
term, indemnity, covenant or agreement contained herein, in the Note, or in
connection with the Note.
Section 9. Lender Appointed Attorney-in-Fact. The Borrower hereby
irrevocably appoints the Lender the attorney-in-fact of the Borrower, with full
authority in the place and stead of the Borrower and in the name of the
Borrower, the Lender or otherwise, from time to time in the Lender's discretion
following the occurrence and during the continuance of an Event of Default, to
take any action and to execute any instrument which the Lender may deem
necessary or advisable to accomplish the purposes of this Security Agreement,
including, without limitation:
(a) To ask, demand, collect, xxx for, recover, compromise, receive and
give acquittance and receipts for moneys due and to become due under or in
connection with the Collateral.
(b) To receive, endorse, and collect any drafts or other instruments,
documents and chattel paper, in connection therewith.
(c) To file any claims or take any action allowed by the terms of this
Agreement or of the Note or institute any proceedings which the Lender may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce
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the rights of the Lender with respect to any of the Collateral.
The provisions of this Section 9 shall terminate upon termination of the
Note and the complete satisfaction and repayment of all of Borrower's
obligations thereunder.
Section 10. The Lender's Duties. Except for the safe custody of any
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Lender shall have no duty as to any Collateral or as to the
taking of any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral. The Lender shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in
its possession if such Collateral is accorded treatment substantially equal to
that which the Lender accords its own property.
Section 11. Remedies. If any Event of Default shall have occurred and be
continuing:
(a) Lender may exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party upon default under the UCC
(whether or not the UCC applies to the affected Collateral), and also may
(i) require the Borrower to, and the Borrower hereby agrees that it will at
its expense and upon request of the Lender forthwith, assemble all or part
of the Collateral as directed by the Lender and make it available to the
Lender at a place to be designated by the Lender which is reasonably
convenient to both parties and (ii) without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Lender's offices or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as the
Lender may deem commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least thirty days'
notice to the Borrower of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Lender may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. Lender may
disclaim warranties of title, possession, quiet enjoyment and the like. Any
action pursuant to this paragraph shall not affect the commercial
reasonableness of the sale.
(b) Any cash held by the Lender as Collateral and all cash proceeds
received by the Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion
of the Lender, be held by the Lender as Collateral for, and/or then or at
any time thereafter be applied in whole or in part by the Lender against,
all or any part of the Liabilities. Any surplus of such cash or cash
proceeds held by the Lender and remaining after payment in full of all the
Liabilities shall be paid over to the Borrower or to whomsoever may be
lawfully entitled to receive such surplus.
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Section 12. Amendments, Etc. No amendment or waiver of any provision of
this Security Agreement, and no consent to any departure by the Borrower
heretofrom, shall in any event be effective unless the same shall be in writing
and signed by the Lender, and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Section 13. Addresses for Notices. All notices and other communications
provided for hereunder shall be made, and shall be effective when made, in the
manner and to the addresses set forth in the Note.
Section 14. Continuing Security Interest. This Security Agreement shall
create a continuing assignment of and security interest in the Collateral and
shall (i) remain in full force and effect until the payment in full of the
Liabilities, (ii) be binding upon the Borrower, its successors and assigns and
(iii) inure to the benefit of, and be enforceable by, the Lender and its
permitted successors, transferees and assigns. Upon any termination of the
Security Agreement, the Lender will, at the Borrower's expense, execute and
deliver to the Borrower such documents as the Borrower shall reasonably request
to evidence such termination.
Section 15. GOVERNING LAW. THE LENDER AND THE BORROWER AGREE THAT EXCEPT AS
REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR ANY OF THE REMEDIES HEREUNDER,
IN RESPECT OF PARTICULAR COLLATERAL, MAY BE GOVERNED BY THE LAWS OF A
JURISDICTION OTHER THAN THE STATE OF COLORADO, ANY DISPUTE BETWEEN THEM ARISING
OUT OF OR RELATED TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION
WITH THIS SECURITY AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
COLORADO.
Section 16. Severability. 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 or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity without invalidating
the remainder of such provision or the remaining provisions of this Security
Agreement.
Section 17. Section Headings. All section headings are inserted for
convenience of reference only and shall not affect any construction or
interpretation of this Security Agreement.
Section 18. Execution. This Security Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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The parties hereto have caused this Security Agreement to be executed as of
the date first above written and to be effective as of the Effective Date.
BORROWER:
POLAR MOLECULAR CORPORATION
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx, President and
Chief Executive Officer
LENDER:
AFFILIATED INVESTMENTS, L.L.C.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Its: President
