Exhibit 10.23
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made as of March 6,
2002, by and between Razorfish, Inc., a Delaware corporation (the "Borrower"),
and Shearwater Partners, LLC, a California limited liability company (the
"Secured Party") with respect to the following facts:
RECITALS
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A. Secured Party and Borrower have entered into that certain Release
dated March 6, 2002, pursuant to which the Borrower has executed (i) a secured
promissory note dated March 6, 2002 in the original principal amount of $750,000
to the Secured Party ("Note 1") and (ii) a secured promissory note dated March
6, 2002 in the original principal amount of $2,125,000 to the Secured Party
("Note 2") (Note 1 and Note 2 shall be collectively referred to herein as the
"Notes");
B. As required by the Notes, the Borrower has agreed to grant to
Secured Party a security interest in certain of Borrower's assets as set forth
below.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and the
mutual covenants herein contained, Borrower and Secured Party hereby agree as
follows:
1. Definitions. In addition to all other terms which are defined in
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this Agreement, all defined terms in the Notes shall have the same meaning in
this Agreement, unless otherwise specified herein to the contrary
(a) "Accounts" shall have the meaning ascribed to it in the
California Commercial Code, and shall include without limitation each and every
right of Borrower, whether now owned or hereafter acquired, to the payment of
money, whether such right to payment now exists or hereafter arises, arising out
of a sale, lease or other disposition of goods or other property, or out of a
rendering of services, whether such right to payment is created, generated or
earned by Borrower or by some other person or entity who subsequently transfers
their interest to Borrower, whether such right to payment is or is not already
earned by performance, and howsoever such right to payment may be evidenced,
together with all other rights and interests (including all liens and security
interests) which Borrower may at any time have by law or agreement against any
account debtor (as such term is defined in the California Commercial Code),
including but not limited to all present and future accounts;
(b) "Chattel Paper" shall have the meaning ascribed to it in the
California Commercial Code, and shall include without limitation all chattel
papers, whether now owned or hereafter acquired, including but not limited to
any writing or group of writings that evidences both an obligation to pay money
and a security interest in or a lease of specific goods;
(c) "Documents" shall have the meaning ascribed to it in the
California Commercial Code, and shall include without limitation all documents,
whether now owned or hereafter acquired, including but not limited to all
documents of title and warehouse receipts, including those with respect to any
goods described in paragraph l(e) hereof;
(d) "Equipment" shall have the meaning ascribed to it in the
California Commercial Code, but shall exclude all equipment leased by the
Borrower from a non-affiliated entity;
(e) "Goods" shall have the meaning ascribed to it in the California
Commercial Code, and shall include without limitation, all equipment (as such
term is defined in the California Commercial Code), whether now owned or
hereafter acquired, including but not limited to all machinery, vehicles,
furniture, fixtures, computers, manufacturing equipment, shop equipment, office
and record-keeping equipment, parts, tools, and supplies, including but not
limited to all computers, computer parts, computer equipment, and all
accessions, attachments, accessories, parts and equipment now or hereafter
attached or affixed to, used or useful in connection with the foregoing;
(f) "Instruments" shall have the meaning ascribed to it in the
California Commercial Code, and shall include without limitation all negotiable
instruments, whether now owned or hereafter acquired, including but not limited
to all debts, drafts, checks, certificates of deposit, demand drafts and any
other writing that evidences a right to the payment of money;
(g) "Investment Property" shall have the meaning ascribed to it in
the California Commercial Code, and shall include without limitation all
securities (whether certificated or uncertificated), securities entitlements,
securities accounts, commodity contracts or commodity accounts;
(h) "Inventory" shall have the meaning ascribed to it in the
California Commercial Code; and
(i) "Obligations" is used herein in its most comprehensive sense and
shall mean any and all present and future debts, obligations and liabilities of
Borrower to Secured Party pursuant to the Notes, as the same may be amended,
renewed, modified or extended from time to time, and Borrower's obligations
under this Security Agreement.
2. Grant of Security Interest. As security for the payment of the
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Obligations, Borrower hereby grants to Secured Party a security interest (the
"Security Interest") in all Accounts, Chattel Paper, Documents, Equipment,
Goods, Inventory, Investment Property and Instruments including all proceeds of
the foregoing, whether now owned or hereafter arising or acquired by Borrower
(collectively, the "Collateral").
3. Perfection and Maintenance of Security Interest.
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(a) Borrower agrees that Secured Party may file such financing
statements as Secured Party may wish, and Borrower agrees to take all actions
reasonably requested by Secured Party, to perfect and continue perfected the
Security Interest in the Collateral. Secured Party may
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at any time, and without further authorization from Borrower, file a carbon,
photographic or other reproduction of any financing statement or of this
Agreement for use as a financing statement.
(b) Borrower shall promptly notify Secured Party of any change in
Borrower's name, including any change to the business names of Borrower, and of
any change in Borrower's Employer Identification Number or Tax Identification
Number. Borrower further agrees to notify Secured Party in writing at least
sixty (60) days prior to any change in Borrower's jurisdiction of organization
or any change to address or location of Borrower's principal office.
(c) Borrower will, in addition to the foregoing, do all such other
acts and things, and execute all such other documents, as the Secured Party may
from time to time reasonably request, and at Borrower's expense, as necessary to
establish and maintain a perfected security interest in the Collateral in the
manner required hereunder.
4. Representations, Warranties and Covenants of Borrower.
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(a) Good Title to Collateral. Borrower is the record and beneficial
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owner of all Collateral and no person has any right, title, or interest (by way
of lien or otherwise) in against or to the Collateral except for liens and
encumbrances arising in the ordinary course of the Borrower's business to the
extent the same do not materially adversely affect the position of Secured
Party.
(b) Maintenance of Collateral. Borrower shall not transfer, sell,
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lease, license or otherwise dispose of the Collateral, or any interest in the
Collateral, except that Borrower may collect the proceeds of the Accounts in the
ordinary course of business prior to the occurrence of a Default under the
provisions of the Notes or under this Security Agreement, and except for other
transfers or dispositions in the ordinary course of the Borrower's business
consistent with past practices (including, without limitation, sales of obsolete
or excess equipment). Borrower shall: (i) maintain the tangible Collateral in
its current condition and repair, reasonable wear and tear excepted, keep it
free from all liens, encumbrances and security interests (other than Secured
Party's security interest and other than liens and encumbrances that (x) are
subordinate in priority to the security interest of Secured Party hereunder, are
not incurred voluntarily by Borrower, and do not have a material adverse effect
on the rights of the Secured Party, or (y) do not have a material adverse effect
on the rights of the Secured party hereunder); and (ii) defend it against all
claims and legal proceedings by persons other than Secured Party. Loss of or
damage to the Collateral shall not release Borrower from any obligations
hereunder.
(c) Insurance. Unless otherwise agreed in writing by Secured Party,
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Borrower shall keep the tangible Collateral insured under policies with such
provisions, for such amounts and by financially responsible and reputable
insurers as shall be reasonable from time to time and upon the execution of this
Agreement and upon request thereafter shall furnish evidence of such insurance
satisfactory to Secured Party. Effective upon Default, Borrower assigns (and
directs any insurer to pay) to Secured Party the proceeds of all such insurance
and any premium refund paid to Borrower, and Borrower authorizes Secured Party
after a Default, to endorse in the name of Borrower any instrument for such
proceeds or refunds and, at the option of Secured Party, to
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apply such proceeds and refunds to any unpaid balance of the Obligations and/or
to restoration of the Collateral, returning any excess to Borrower. After a
Default, Secured Party is authorized, in the name of Borrower or otherwise, to
make, adjust, settle claims under and/or cancel any insurance on the Collateral.
(d) Expenses; Further Actions. Borrower shall, upon request, execute
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and deliver any further documents and take any further actions reasonably deemed
advisable by Secured Party to preserve the Secured Party's security interest in
the Collateral or to establish, determine priority of, perfect, continue
perfected, terminate and/or enforce Secured Party's interest in the Collateral
or rights under this Agreement. A carbon, photographic or other reproduction of
this Agreement or any financing statement shall be sufficient as a financing
statement.
(e) Collateral Records and Statements. Borrower shall keep accurate
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and complete records respecting the Collateral, consistent with normal and
customary practice. Within 30 days of the execution of this Agreement, Borrower
shall deliver a statement certified by either the then serving Chief Financial
Officer or Chief Executive Officer of Borrower (the "Collateral Certification")
that information (the "Collateral Information") showing the current status and
amount of the Accounts, including a current list of aged accounts receivable,
names and current addresses of the account debtors and contact person for each
account debtor has been delivered to First Bank & Trust ("Escrow Holder") which
Collateral Information shall be held by Escrow Holder pursuant to the terms of
the escrow agreement ("Escrow Agreement") a copy of which is attached hereto as
Exhibit A and is incorporated herein by reference. Within thirty (30) days of
the end of each calendar quarter, Borrower shall deliver to Secured Party a
Collateral Certification certifying the delivery by Borrower of then current
Collateral Information to Escrow Holder. Secured Party agrees that it shall not
contact account debtors of Borrower until after the occurrence and during the
continuance of a Default.
(f) Inspection of Collateral. At reasonable times, Secured Party may
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examine the Collateral and Borrower's records pertaining to it, wherever
located, and make copies of records. Borrower shall assist Secured Party in so
doing.
(g) Taxes and Other Charges. Borrower shall pay and discharge all
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lawful taxes, assessments, license fees, levies, governmental charges and other
charges against the Collateral to the extent that the same have a material
adverse effect on the rights of Secured Party hereunder prior to the date on
which penalties attach, unless and to the extent only that such taxes,
assessments, license fees, levies and charges are contested in good faith and by
appropriate proceedings by Borrower.
5. Default. Upon the occurrence of any Default (as that term is
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defined in the Notes), all of the Obligations shall, at the option of Secured
Party, become immediately due and payable; and Secured Party shall, in addition
to the other rights and remedies provided for herein or the otherwise available
to it, have all rights and remedies for default provided by the California
Commercial Code, as well as those provided by any other applicable law and the
instruments, documents and agreements evidencing the Obligations. Upon the
occurrence of a Default:
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(a) The Secured Party may notify an account debtor of any of the
Accounts to make payment to Secured Party.
(b) The Secured Party may bring an action against any account debtor
in the name of Borrower or in the name of Secured Party to collect the amount
due or to foreclose on any security given for the Account.
(c) The Secured Party may (i) require Borrower to, and Borrower
hereby agrees that it will at its expense and upon request of Secured Party,
assemble all or part of the documents and things embodying any part of the
Collateral as directed by Secured Party and make them available at any place
designated by Secured Party within fifteen (15) days of Secured Party's request;
(ii) enter onto Borrower's premises where any Collateral may be located, and may
take possession of such Collateral, all without notice or a hearing; and (iii)
give at least fifteen (15) days notice of Secured Party's intent to sell the
Collateral or any part thereof in one or more parcels at public or private sale,
at any place, for cash, on credit or for future delivery, and upon such other
terms as Secured Party may deem desirable. Borrower agrees that at least fifteen
(15) days' notice to Borrower before the time and place of any public sale will
constitute reasonable notification.
(d) All cash proceeds received by Secured Party in respect of any
sale of, collection from, or other realization upon, all or any part of the
Collateral shall be immediately applied in whole by Secured Party for its
benefit against all or the corresponding amount of the Obligations. Any surplus
of such cash or cash proceeds held by the Secured Party and remaining after
payment in full of all of the Obligations shall be paid over to the Borrower. If
Secured Party sells any of the Collateral on credit, Borrower will be credited
only with payments actually made by the purchaser and received by Secured Party.
In the event the purchaser fails to pay for the Collateral, Secured Party may
resell the Collateral and Borrower shall be credited with the proceeds of such
resale.
(e) The Secured Party may exercise any and all rights and remedies
of the Borrower in respect of the Collateral.
(f) All payments received by Borrower in respect of the Collateral
shall be received in trust for the benefit of Secured Party, shall be segregated
from other funds of Borrower and shall be forthwith paid over to Secured Party
in the same form as so received (with any necessary or desirable endorsement or
assignment).
(g) Secured Party has no obligation to attempt to satisfy the
Obligations by collecting them from any other person liable for them and Secured
Party may release, modify or waive any collateral provided by any other person
to secure any of the Obligations, all without affecting Secured Party's rights
against Borrower. Borrower waives any right it may have to require Secured Party
to pursue any third person for any of the Obligations. Secured Party shall
further have no obligation to marshal any assets for the benefit of Borrower or
any third party.
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6. Release and Termination.
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(a) Upon the indefeasible payment in full in cash of the
Obligations, the security interest granted the Secured Party hereby shall
terminate and all rights to the Collateral shall revert to Borrower. Upon any
such termination, Secured Party will, upon receipt of a written request and at
Borrower's expense, execute and deliver to Borrower such documents, including
all appropriate termination statements, as Borrower shall reasonably request to
evidence such termination.
7. Miscellaneous.
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(a) Borrower and Secured Party hereby waive any and all right to
trial by jury in any action or proceeding relating to this Agreement, any
Collateral, or any document delivered hereunder or in connection herewith, or
any transaction arising from or connected to any of the foregoing. Borrower and
Secured Parry represent that this waiver is knowingly, willingly and voluntarily
given.
(b) No delay on the part of Secured Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein specified are cumulative and not
exclusive of any rights or remedies which Secured Party would otherwise have.
(c) All notices, requests, consents and other communications under
this Agreement shall be in writing and shall be deemed effectively given: (a)
upon personal delivery; (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(c) the earlier of actual receipt or five days after having been sent by
registered or certified mail, return receipt requested, postage prepaid; or (d)
one day after deposit with a nationally recognized overnight courier, special
next day delivery, with verification of receipt, at the address(es) set forth or
specified below, or at such other address or addresses as may have been
furnished in writing by the Borrower to the Secured Party, or by the Secured
Party to the Borrower, as applicable:
(i) To Secured Party:
Shearwater Partners,
LLC 00 Xxxxxxx Xxxxxx, Xxxxx 0
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxx
Xxxxx Pedot
Fax No: (000) 000-0000
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With a copy, which shall not constitute notice, to:
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx & Xxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Fax No: (000) 000-0000
(ii) To Borrower:
Razorfish, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx and Xxxx-Xxxxxxxx Xxxxx
Fax No: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax No: 000-000-0000
(d) This Agreement sets forth the entire agreement and understanding
of the parties with respect to the subject matter hereof, and all prior
agreements, understandings, communications and negotiations are superseded and
merged herein.
(e) Borrower shall reimburse Secured Party for any expense incurred
by Secured Party in protecting or enforcing its rights under this Agreement
after Default, both before and after judgment including, without limitation,
reasonable attorneys' fees and legal expenses and all expenses of taking
possession, holding, preparing for disposition and disposing of the Collateral.
After deduction of such expenses, Secured Party may apply the proceeds of
disposition to the other Obligations in such order and amounts as it elects.
(f) This Agreement may only be amended by a writing subscribed to by
both parties.
(g) This Agreement may be executed in any number of counterparts and
by the 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. Delivery of an executed counterpart of a
signature page to this Agreement by telecopier shall be as effective as delivery
of a manually executed counterpart of this Agreement.
(h) Each party acknowledges that it has had full opportunity to
consult with such legal and financial advisors as it deemed advisable in
connection with its decision to
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knowingly enter into this Agreement, and that both parties have participated in
the drafting of this Agreement.
(i) The validity, construction, interpretation and enforcement of
this Agreement shall be determined and governed by the laws of the State of
California.
IN WITNESS WHEREOF, the parties have read and duly executed this
Agreement effective as of the date and year first written above.
"Borrower:"
RAZORFISH, INC.,
a Delaware corporation
By: /s/ XX Xxxxx
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Printed Name: XX Xxxxx
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Title: CEO
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By: /s/ Xxxx Xxxxxxx
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Printed Name: Xxxx Xxxxxxx
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Title: CFO
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"Secured Party:"
SHEARWATER PARTNERS, LLC,
A California limited liability company
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, Member
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