SECURITY AGREEMENT
SECURITY AGREEMENT (this "Agreement"), dated as of February 28, 2005,
by and among Insynq, Inc., a Nevada corporation (the "Company"), and the secured
parties signatory hereto and their respective endorsees, transferees and assigns
(collectively, the "Secured Party").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement, dated the date
hereof, between the Company and the Secured Party (the "Purchase Agreement"),
the Company has agreed to issue to the Secured Party and the Secured Party has
agreed to purchase from the Company certain of the Company's 8% Secured
Convertible Notes, due three years from the date of issue (the "Notes"), which
are convertible into shares of the Company's Common Stock, par value $.001 per
share (the "Common Stock") and shares of the Company's Series B Convertible
Preferred Stock (the "Preferred Stock" and collectively with the Notes, the
"Convertible Securities"). In connection therewith, the Company shall issue the
Secured Party certain Common Stock purchase warrants (the "Warrants"); and
WHEREAS, in order to induce the Secured Party to purchase the Notes,
the Company has agreed to execute and deliver to the Secured Party this
Agreement for the benefit of the Secured Party and to grant to it a security
interest in certain property of the Company to secure the prompt payment,
performance and discharge in full of all of the Company's obligations under the
Convertible Securities and exercise and discharge in full of the Company's
obligations under the Warrants.
NOW, THEREFORE, in consideration of the agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings set forth in this Section 1.
Terms used but not otherwise defined in this Agreement that
are defined in Article 9 of the UCC (such as "general
intangibles" and "proceeds") shall have the respective
meanings given such terms in Article 9 of the UCC.
(a) "Collateral" means the collateral in which the Secured Party
is granted a security interest by this Agreement and which
shall include the following, whether presently owned or
existing or hereafter acquired or coming into existence, and
all additions and accessions thereto and all substitutions and
replacements thereof, and all proceeds, products and accounts
thereof, including, without limitation, all proceeds from the
sale or transfer of the Collateral and of insurance covering
the same and of any tort claims in connection therewith:
(i) All Goods of the Company, including, without limitations, all
machinery, equipment, computers, motor vehicles, trucks,
tanks, boats, ships, appliances, furniture, special and
general tools, fixtures, test and quality control devices and
other equipment of every kind and nature and wherever
situated, together with all documents of title and documents
representing the same, all additions and accessions thereto,
replacements therefor, all parts therefor, and all substitutes
for any of the foregoing and all other items used and useful
in connection with the Company's businesses and all
improvements thereto (collectively, the "Equipment"); and
(ii) All Inventory of the Company; and
(iii) All of the Company's contract rights and general intangibles,
including, without limitation, all partnership interests,
stock or other securities, licenses, distribution and other
agreements, computer software development rights, leases,
franchises, customer lists, quality control procedures, grants
and rights, goodwill, trademarks, service marks, trade styles,
trade names, patents, patent applications, copyrights, deposit
accounts, and income tax refunds (collectively, the "General
Intangibles"); and
(iv) All Receivables of the Company including all insurance
proceeds, and rights to refunds or indemnification whatsoever
owing, together with all instruments, all documents of title
representing any of the foregoing, all rights in any
merchandising, goods, equipment, motor vehicles and trucks
which any of the same may represent, and all right, title,
security and guaranties with respect to each Receivable,
including any right of stoppage in transit; and
(v) All of the Company's documents, instruments and chattel paper,
files, records, books of account, business papers, computer
programs and the products and proceeds of all of the foregoing
Collateral set forth in clauses (i)-(iv) above.
(b) "Company" shall mean, collectively, Company and all of the
subsidiaries of Company, a list of which is contained in
Schedule A, attached hereto.
(c) "Obligations" means all of the Company's obligations under
this Agreement and the Convertible Securities, in each case,
whether now or hereafter existing, voluntary or involuntary,
direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and
whether or not from time to time decreased or extinguished and
later decreased, created or incurred, and all or any portion
of such obligations or liabilities that are paid, to the
extent all or any part of such payment is avoided or recovered
directly or indirectly from the Secured Party as a preference,
fraudulent transfer or otherwise as such obligations may be
amended, supplemented, converted, extended or modified from
time to time.
(d) "UCC" means the Uniform Commercial Code, as currently in
effect in the State of New York.
2. Grant of Security Interest. As an inducement for the Secured
Party to purchase the Notes and to secure the complete and
timely payment, performance and discharge in full, as the case
may be, of all of the Obligations, subject to the Pre-Existing
Liens (as defined below) the Company hereby, unconditionally
and irrevocably, pledges, grants and hypothecates to the
Secured Party, a continuing security interest in, a continuing
first lien upon, an unqualified right to possession and
disposition of and a right of set-off against, in each case to
the fullest extent permitted by law, all of the Company's
right, title and interest of whatsoever kind and nature in and
to the Collateral (the "Security Interest").
3. Representations, Warranties, Covenants and Agreements of the
Company. The Company represents and warrants to, and covenants
and agrees with, the Secured Party as follows:
(a) The Company has the requisite corporate power and authority to
enter into this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and
performance by the Company of this Agreement and the filings
contemplated therein have been duly authorized by all
necessary action on the part of the Company and no further
action is required by the Company. This Agreement constitutes
a legal, valid and binding obligation of the Company
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditor's rights generally.
(b) The Company represents and warrants that it has no place of
business or offices where its respective books of account and
records are kept (other than temporarily at the offices of its
attorneys or accountants) or places where Collateral is stored
or located, except as set forth on Schedule A attached hereto;
(c) The Company is the sole owner of the Collateral (except for
non-exclusive licenses granted by the Company in the ordinary
course of business), free and clear of any liens, security
interests, encumbrances, rights or claims, and is fully
authorized to grant the Security Interest in and to pledge the
Collateral, except for the security interest granted per
Schedule 3(t) of the Securities Purchase Agreement (the
"Pre-Existing Liens"). Except for filings relating to the
Pre-Existing Liens,there is not on file in any governmental or
regulatory authority, agency or recording office an effective
financing statement, security agreement, license or transfer
or any notice of any of the foregoing (other than those that
have been filed in favor of the Secured Party pursuant to this
Agreement) covering or affecting any of the Collateral. So
long as this Agreement shall be in effect, the Company shall
not execute and shall not knowingly permit to be on file in
any such office or agency any such financing statement or
other document or instrument (except to the extent filed or
recorded in favor of the Secured Party pursuant to the terms
of this Agreement).
(d) No part of the Collateral has been judged invalid or
unenforceable. No written claim has been received that any
Collateral or the Company's use of any Collateral violates the
rights of any third party. There has been no adverse decision
to the Company's claim of ownership rights in or exclusive
rights to use the Collateral in any jurisdiction or to the
Company's right to keep and maintain such Collateral in full
force and effect, and there is no proceeding involving said
rights pending or, to the best knowledge of the Company,
threatened before any court, judicial body, administrative or
regulatory agency, arbitrator or other governmental authority.
(e) The Company shall at all times maintain its books of account
and records relating to the Collateral at its principal place
of business and its Collateral at the locations set forth on
Schedule A attached hereto and may not relocate such books of
account and records or tangible Collateral unless it delivers
to the Secured Party at least 30 days prior to such relocation
(i) written notice of such relocation and the new location
thereof (which must be within the United States) and (ii)
evidence that appropriate financing statements and other
necessary documents have been filed and recorded and other
steps have been taken to perfect the Security Interest to
create in favor of the Secured Party valid, perfected and
continuing liens in the Collateral.
(f) This Agreement creates in favor of the Secured Party a valid
security interest in the Collateral securing the payment and
performance of the Obligations and, upon making the filings
described in the immediately following sentence, a perfected
security interest in such Collateral. Except for the filing of
financing statements on Form-1 under the UCC with the
jurisdictions indicated on Schedule B, attached hereto, no
authorization or approval of or filing with or notice to any
governmental authority or regulatory body is required either
(i) for the grant by the Company of, or the effectiveness of,
the Security Interest granted hereby or for the execution,
delivery and performance of this Agreement by the Company or
(ii) for the perfection of or exercise by the Secured Party of
its rights and remedies hereunder.
(g) On the date of execution of this Agreement, the Company will
deliver to the Secured Party one or more executed UCC
financing statements on Form-1 with respect to the Security
Interest for filing with the jurisdictions indicated on
Schedule B, attached hereto and in such other jurisdictions as
may be requested by the Secured Party.
(h) The execution, delivery and performance of this Agreement does
not conflict with or cause a breach or default, or an event
that with or without the passage of time or notice, shall
constitute a breach or default, under any agreement to which
the Company is a party or by which the Company is bound. No
consent (including, without limitation, from stock holders or
creditors of the Company) is required for the Company to enter
into and perform its obligations hereunder.
(i) The Company shall at all times cooperate with the Secured
Party in maintaining the liens and Security Interest provided
for hereunder as valid and perfected first priority liens and
security interests in the Collateral in favor of the Secured
Party until this Agreement and the Security Interest hereunder
shall terminate pursuant to Section 11 subject to the
Pre-Existing Liens as disclosed herein. The Company hereby
agrees to defend the same against any and all persons. The
Company shall safeguard and protect all Collateral for the
account of the Secured Party. At the request of the Secured
Party, the Company will sign and deliver to the Secured Party
at any time or from time to time one or more financing
statements pursuant to the UCC (or any other applicable
statute) in form reasonably satisfactory to the Secured Party
and will pay the cost of filing the same in all public offices
wherever filing is, or is deemed by the Secured Party to be,
necessary or desirable to effect the rights and obligations
provided for herein. Without limiting the generality of the
foregoing, the Company shall pay all fees, taxes and other
amounts necessary to maintain the Collateral and the Security
Interest hereunder, and the Company shall obtain and furnish
to the Secured Party from time to time, upon demand, such
releases and/or subordinations of claims and liens which may
be required to maintain the priority of the Security Interest
hereunder.
(j) The Company will not transfer, pledge, hypothecate, encumber,
license (except for non-exclusive licenses granted by the
Company in the ordinary course of business), sell or otherwise
dispose of any of the Collateral without the prior written
consent of the Secured Party.
(k) The Company shall keep and preserve its Equipment, Inventory
and other tangible Collateral in good condition, repair and
order and shall not operate or locate any such Collateral (or
cause to be operated or located) in any area excluded from
insurance coverage.
(l) The Company shall, within ten (10) days of obtaining knowledge
thereof, advise the Secured Party promptly, in sufficient
detail, of any substantial change in the Collateral, and of
the occurrence of any event which would have a material
adverse effect on the value of the Collateral or on the
Secured Party's security interest therein.
(m) The Company shall promptly execute and deliver to the Secured
Party such further deeds, mortgages, assignments, security
agreements, financing statements or other instruments,
documents, certificates and assurances and take such further
action as the Secured Party may from time to time request and
may in its sole discretion deem necessary to perfect, protect
or enforce its security interest in the Collateral including,
without limitation, the execution and delivery of a separate
security agreement with respect to the Company's intellectual
property ("Intellectual Property Security Agreement") in which
the Secured Party has been granted a security interest
hereunder, substantially in a form acceptable to the Secured
Party, which Intellectual Property Security Agreement, other
than as stated therein, shall be subject to all of the terms
and conditions hereof.
(n) The Company shall permit the Secured Party and its
representatives and agents to inspect the Collateral at any
time during reasonable business hours, and to make copies of
records pertaining to the Collateral as may be requested by
the Secured Party from time to time, so long as the Secured
Party provides the Company with reasonable prior notice.
(o) The Company will take all steps reasonably necessary to
diligently pursue and seek to preserve, enforce and collect
any rights, claims, causes of action and accounts receivable
in respect of the Collateral.
(p) The Company shall promptly notify the Secured Party in
sufficient detail upon becoming aware of any attachment,
garnishment, execution or other legal process levied against
any Collateral and of any other information received by the
Company that may materially affect the value of the
Collateral, the Security Interest or the rights and remedies
of the Secured Party hereunder.
(q) All information heretofore, herein or hereafter supplied to
the Secured Party by or on behalf of the Company with respect
to the Collateral is accurate and complete in all material
respects as of the date furnished.
(r) Schedule A attached hereto contains a list of all of the
subsidiaries of Company.
4. Defaults. The following events shall be "Events of Default":
(a) The occurrence of an Event of Default (as defined in the
Notes) under the Notes;
(b) Any representation or warranty of the Company in this
Agreement or in the Intellectual Property Security Agreement
shall prove to have been incorrect in any material respect
when made;
(c) The failure by the Company to observe or perform any of its
obligations hereunder or in the Intellectual Property Security
Agreement for ten (10) days after receipt by the Company of
notice of such failure from the Secured Party; and
(d) Any breach of, or default under, the Warrants.
5. Duty To Hold In Trust. Upon the occurrence of any Event of
Default and at any time thereafter, the Company shall, upon
receipt by it of any revenue, income or other sums subject to
the Security Interest, whether payable pursuant to the Notes
or otherwise, or of any check, draft, note, trade acceptance
or other instrument evidencing an obligation to pay any such
sum, hold the same in trust for the Secured Party and shall
forthwith endorse and transfer any such sums or instruments,
or both, to the Secured Party for application to the
satisfaction of the Obligations.
6. Rights and Remedies Upon Default. Upon occurrence of any Event
of Default and at any time thereafter, the Secured Party shall
have the right to exercise all of the remedies conferred
hereunder and under the Notes, and the Secured Party shall
have all the rights and remedies of a secured party under the
UCC and/or any other applicable law (including the Uniform
Commercial Code of any jurisdiction in which any Collateral is
then located). Without limitation, the Secured Party shall
have the following rights and powers:
(a) The Secured Party shall have the right to take possession of
the Collateral and, for that purpose, enter, with the aid and
assistance of any person, any premises where the Collateral,
or any part thereof, is or may be placed and remove the same,
and the Company shall assemble the Collateral and make it
available to the Secured Party at places which the Secured
Party shall reasonably select, whether at the Company's
premises or elsewhere, and make available to the Secured
Party, without rent, all of the Company's respective premises
and facilities for the purpose of the Secured Party taking
possession of, removing or putting the Collateral in saleable
or disposable form.
(b) The Secured Party shall have the right to operate the business
of the Company using the Collateral and shall have the right
to assign, sell, lease or otherwise dispose of and deliver all
or any part of the Collateral, at public or private sale or
otherwise, either with or without special conditions or
stipulations, for cash or on credit or for future delivery, in
such parcel or parcels and at such time or times and at such
place or places, and upon such terms and conditions as the
Secured Party may deem commercially reasonable, all without
(except as shall be required by applicable statute and cannot
be waived) advertisement or demand upon or notice to the
Company or right of redemption of the Company, which are
hereby expressly waived. Upon each such sale, lease,
assignment or other transfer of Collateral, the Secured Party
may, unless prohibited by applicable law which cannot be
waived, purchase all or any part of the Collateral being sold,
free from and discharged of all trusts, claims, right of
redemption and equities of the Company, which are hereby
waived and released.
(c) Notwithstanding anything herein to the contrary, the
rights of the Secured Party herein are subject to the rights of the Pre-Existing
Liens disclosed in Section 3(c) above.
7. Applications of Proceeds. The proceeds of any such sale, lease or other
disposition of the Collateral hereunder shall be applied first, to the expenses
of retaking, holding, storing, processing and preparing for sale, selling, and
the like (including, without limitation, any taxes, fees and other costs
incurred in connection therewith) of the Collateral, to the reasonable
attorneys' fees and expenses incurred by the Secured Party in enforcing its
rights hereunder and in connection with collecting, storing and disposing of the
Collateral, and then to satisfaction of the Obligations, and to the payment of
any other amounts required by applicable law, after which the Secured Party
shall pay to the Company any surplus proceeds. If, upon the sale, license or
other disposition of the Collateral, the proceeds thereof are insufficient to
pay all amounts to which the Secured Party is legally entitled, the Company will
be liable for the deficiency, together with interest thereon, at the rate of 15%
per annum (the "Default Rate"), and the reasonable fees of any attorneys
employed by the Secured Party to collect such deficiency. To the extent
permitted by applicable law, the Company waives all claims, damages and demands
against the Secured Party arising out of the repossession, removal, retention or
sale of the Collateral, unless due to the gross negligence or willful misconduct
of the Secured Party.
8. Costs and Expenses. The Company agrees to pay all out-of-pocket fees, costs
and expenses incurred in connection with any filing required hereunder,
including without limitation, any financing statements, continuation statements,
partial releases and/or termination statements related thereto or any expenses
of any searches reasonably required by the Secured Party. The Company shall also
pay all other claims and charges which in the reasonable opinion of the Secured
Party might prejudice, imperil or otherwise affect the Collateral or the
Security Interest therein. The Company will also, upon demand, pay to the
Secured Party the amount of any and all reasonable expenses, including the
reasonable fees and expenses of its counsel and of any experts and agents, which
the Secured Party may incur in connection with (i) the enforcement of this
Agreement, (ii) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Collateral, or (iii) the exercise or
enforcement of any of the rights of the Secured Party under the Notes. Until so
paid, any fees payable hereunder shall be added to the principal amount of the
Notes and shall bear interest at the Default Rate.
9. Responsibility for Collateral. The Company assumes all liabilities and
responsibility in connection with all Collateral, and the obligations of the
Company hereunder or under the Notes and the Warrants shall in no way be
affected or diminished by reason of the loss, destruction, damage or theft of
any of the Collateral or its unavailability for any reason.
10. Security Interest Absolute. All rights of the Secured Party and all
Obligations of the Company hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Notes, the Warrants or any agreement entered into in connection with the
foregoing, or any portion hereof or thereof; (b) any change in the time, manner
or place of payment or performance of, or in any other term of, all or any of
the Obligations, or any other amendment or waiver of or any consent to any
departure from the Notes, the Warrants or any other agreement entered into in
connection with the foregoing; (c) any exchange, release or nonperfection of any
of the Collateral, or any release or amendment or waiver of or consent to
departure from any other collateral for, or any guaranty, or any other security,
for all or any of the Obligations; (d) any action by the Secured Party to
obtain, adjust, settle and cancel in its sole discretion any insurance claims or
matters made or arising in connection with the Collateral; or (e) any other
circumstance which might otherwise constitute any legal or equitable defense
available to the Company, or a discharge of all or any part of the Security
Interest granted hereby. Until the Obligations shall have been paid and
performed in full, the rights of the Secured Party shall continue even if the
Obligations are barred for any reason, including, without limitation, the
running of the statute of limitations or bankruptcy. The Company expressly
waives presentment, protest, notice of protest, demand, notice of nonpayment and
demand for performance. In the event that at any time any transfer of any
Collateral or any payment received by the Secured Party hereunder shall be
deemed by final order of a court of competent jurisdiction to have been a
voidable preference or fraudulent conveyance under the bankruptcy or insolvency
laws of the United States, or shall be deemed to be otherwise due to any party
other than the Secured Party, then, in any such event, the Company's obligations
hereunder shall survive cancellation of this Agreement, and shall not be
discharged or satisfied by any prior payment thereof and/or cancellation of this
Agreement, but shall remain a valid and binding obligation enforceable in
accordance with the terms and provisions hereof. The Company waives all right to
require the Secured Party to proceed against any other person or to apply any
Collateral which the Secured Party may hold at any time, or to marshal assets,
or to pursue any other remedy. The Company waives any defense arising by reason
of the application of the statute of limitations to any obligation secured
hereby.
11. Term of Agreement. This Agreement and the Security Interest shall terminate
on the date on which all payments under the Notes have been made in full and all
other Obligations have been paid or discharged. Upon such termination, the
Secured Party, at the request and at the expense of the Company, will join in
executing any termination statement with respect to any financing statement
executed and filed pursuant to this Agreement.
12. Power of Attorney; Further Assurances.
(a) The Company authorizes the Secured Party, and does hereby make, constitute
and appoint it, and its respective officers, agents, successors or assigns with
full power of substitution, as the Company's true and lawful attorney-in-fact,
with power, in its own name or in the name of the Company, to, after the
occurrence and during the continuance of an Event of Default, (i) endorse any
notes, checks, drafts, money orders, or other instruments of payment (including
payments payable under or in respect of any policy of insurance) in respect of
the Collateral that may come into possession of the Secured Party; (ii) to sign
and endorse any UCC financing statement or any invoice, freight or express xxxx,
xxxx of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts, and other
documents relating to the Collateral; (iii) to pay or discharge taxes, liens,
security interests or other encumbrances at any time levied or placed on or
threatened against the Collateral; (iv) to demand, collect, receipt for,
compromise, settle and xxx for monies due in respect of the Collateral; and (v)
generally, to do, at the option of the Secured Party, and at the Company's
expense, at any time, or from time to time, all acts and things which the
Secured Party deems necessary to protect, preserve and realize upon the
Collateral and the Security Interest granted therein in order to effect the
intent of this Agreement, the Notes and the Warrants, all as fully and
effectually as the Company might or could do; and the Company hereby ratifies
all that said attorney shall lawfully do or cause to be done by virtue hereof.
This power of attorney is coupled with an interest and shall be irrevocable for
the term of this Agreement and thereafter as long as any of the Obligations
shall be outstanding.
(b) On a continuing basis, the Company will make, execute, acknowledge, deliver,
file and record, as the case may be, in the proper filing and recording places
in any jurisdiction, including, without limitation, the jurisdictions indicated
on Schedule B, attached hereto, all such instruments, and take all such action
as may reasonably be deemed necessary or advisable, or as reasonably requested
by the Secured Party, to perfect the Security Interest granted hereunder and
otherwise to carry out the intent and purposes of this Agreement, or for
assuring and confirming to the Secured Party the grant or perfection of a
security interest in all the Collateral.
(c) The Company hereby irrevocably appoints the Secured Party as the Company's
attorney-in-fact, with full authority in the place and stead of the Company and
in the name of the Company, from time to time in the Secured Party's discretion,
to take any action and to execute any instrument which the Secured Party may
deem necessary or advisable to accomplish the purposes of this Agreement,
including the filing, in its sole discretion, of one or more financing or
continuation statements and amendments thereto, relative to any of the
Collateral without the signature of the Company where permitted by law.
13. Notices. All notices, requests, demands and other communications hereunder
shall be in writing, with copies to all the other parties hereto, and shall be
deemed to have been duly given when (i) if delivered by hand, upon receipt, (ii)
if sent by facsimile, upon receipt of proof of sending thereof, (iii) if sent by
nationally recognized overnight delivery service (receipt requested), the next
business day or (iv) if mailed by first-class registered or certified mail,
return receipt requested, postage prepaid, four days after posting in the U.S.
mails, in each case if delivered to the following addresses:
If to the Company: Insynq, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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With a copy to: xx Xxxxxx & Xxxxx, LLP
----------------------
000 Xxxxxx Xxxxxx
-----------------
Xxx Xxxxx, Xxxxxxxxxx 00000
---------------------------
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
--------------------------
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
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If to the Secured Party: AJW Partners, LLC
AJW Offshore, Ltd.
AJW Qualified Partners, LLC
New Millennium Capital Partners II, LLC
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx
Facsimile: 000-000-0000
With a copy to: Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
14. Other Security. To the extent that the Obligations are now or hereafter
secured by property other than the Collateral or by the guarantee, endorsement
or property of any other person, firm, corporation or other entity, then the
Secured Party shall have the right, in its sole discretion, to pursue,
relinquish, subordinate, modify or take any other action with respect thereto,
without in any way modifying or affecting any of the Secured Party's rights and
remedies hereunder.
15. Miscellaneous.
(a) No course of dealing between the Company and the Secured Party, nor any
failure to exercise, nor any delay in exercising, on the part of the Secured
Party, any right, power or privilege hereunder or under the Notes shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
(b) All of the rights and remedies of the Secured Party with respect to the
Collateral, whether established hereby or by the Notes or by any other
agreements, instruments or documents or by law shall be cumulative and may be
exercised singly or concurrently.
(c) This Agreement constitutes the entire agreement of the parties with respect
to the subject matter hereof and is intended to supersede all prior
negotiations, understandings and agreements with respect thereto. Except as
specifically set forth in this Agreement, no provision of this Agreement may be
modified or amended except by a written agreement specifically referring to this
Agreement and signed by the parties hereto.
(d) In the event that any provision of this Agreement is held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason, unless such
provision is narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right under this Agreement shall
be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default or right, whether of the same or similar nature or otherwise.
(f) This Agreement shall be binding upon and inure to the benefit of each party
hereto and its successors and assigns.
(g) Each party shall take such further action and execute and deliver such
further documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) This Agreement shall be construed in accordance with the laws of the State
of New York, except to the extent the validity, perfection or enforcement of a
security interest hereunder in respect of any particular Collateral which are
governed by a jurisdiction other than the State of New York in which case such
law shall govern. Each of the parties hereto irrevocably submit to the exclusive
jurisdiction of any New York State or United States Federal court sitting in
Manhattan county over any action or proceeding arising out of or relating to
this Agreement, and the parties hereto hereby irrevocably agree that all claims
in respect of such action or proceeding may be heard and determined in such New
York State or Federal court. The parties hereto agree that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
The parties hereto further waive any objection to venue in the State of New York
and any objection to an action or proceeding in the State of New York on the
basis of forum non conveniens.
(i) EACH PARTY HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATER OF
THIS AGREEMENT, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY
HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR EACH PARTY TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH PARTY HAS ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH PARTY WILL CONTINUE TO RELY
ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT
SUCH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVES ITS RIGHTS TO A JURY TRIAL
FOLLOWING SUCH CONSULTATION. THIS WAIVER IS IRREVOCABLE, MEANING THAT,
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS AND SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF A
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
(j) This Agreement may be executed in any number of 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. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed on the day and year first above written.
INSYNQ, INC.
By: _______________________________
Xxxx Xxxxx
Chief Executive Officer
AJW PARTNERS, LLC
By: SMS Group, LLC
By: _______________________________
Xxxxx X. Xxxxxxxx
Manager
AJW OFFSHORE, LTD.
By: First Street Manager II, LLC
By: _______________________________
Xxxxx X. Xxxxxxxx
Manager
AJW QUALIFIED PARTNERS, LLC
By: AJW Manager, LLC
By: _______________________________
Xxxxx X. Xxxxxxxx
Manager
NEW MILLENNIUM CAPITAL PARTNERS II, LLC.
By: First Street Manager II, LLC
By: _____________________________________
Xxxxx X. Xxxxxxxx
Manager
15
A-1
SCHEDULE A
Principal Place of Business of the Company:
0000 Xxxxxxxx, #000
Xxxxxx, Xxxxxxxxxx 00000
Locations Where Collateral is Located or Stored:
0000 Xxxxxxxx, #000
Xxxxxx, Xxxxxxxxxx 00000
List of Subsidiaries of the Company:
0000 Xxxxxxxx, #000
Xxxxxx, Xxxxxxxxxx 00000
X-0
XXXXXXXX X
Xxxxxxxxxxxxx:
Xxxxxx Xxxxxx, Xxxxx xx Xxxxxxxxxx
