SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), is entered into and made effective as
of March 20, 2007, by and between LOCATEPLUS HOLDINGS CORPORATION, a Delaware
corporation with its principal place of business located at 000 Xxxxxxxx Xxxxxx,
Xxxxx 000X, Xxxxxxx, XX 00000 (the "Parent"), and the each subsidiary of the
Parent listed on Schedule I attached hereto (each a "Subsidiary," and
collectively and together with the Parent, the "Company"), in favor of the
BUYER(S) (the "Secured Party") listed on Schedule I attached to the Securities
Purchase Agreement (the "Securities Purchase Agreement") dated the date hereof
between the Company and the Secured Party.
WHEREAS, The Parent shall issue and sell to the Secured Party, as provided in
the Securities Purchase Agreement, and the Secured Party shall purchase, up to
Six Million Dollars ($6,000,000) of secured convertible debentures (the
"Convertible Debentures"), which shall be convertible into shares of the
Parent's common stock, par value $0.01, in the respective amounts set forth
opposite each Buyer(s) name on Schedule I attached to the Securities Purchase
Agreement;
WHEREAS, to induce the Secured Party to enter into the transaction contemplated
by the Securities Purchase Agreement, the Convertible Debentures, the Investor
Registration Rights Agreement of even date herewith between the Parent and the
Secured Party (the "Investor Registration Rights Agreement"), and the
Irrevocable Transfer Agent Instructions among the Parent, the Secured Party, the
Parent's transfer agent, and Xxxxx Xxxxxxxx, Esq. (the "Transfer Agent
Instructions") (collectively referred to as the "Transaction Documents"), each
Company hereby grants to the Secured Party a security interest in and to the
pledged property of each Company identified on Exhibit A hereto (collectively
referred to as the "Pledged Property") to secure all of the Obligations (as
defined below).
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein
contained, and for other good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1.
DEFINITIONS AND INTERPRETATIONS
Section 1.1. Recitals.
The above recitals are true and correct and are incorporated herein, in their
entirety, by this reference.
Section 1.2. Interpretations.
Nothing herein expressed or implied is intended or shall be construed to confer
upon any person other than the Secured Party any right, remedy or claim under or
by reason hereof.
Section 1.3. Obligations Secured.
The security interest created hereby in the Pledged Property constitutes
continuing collateral security for all of the obligations of the Parent now
existing or hereinafter incurred to the Buyers, whether oral or written and
whether arising before, on or after the date hereof including, without
limitation following obligations (collectively, the "Obligations"):
(a) for so long as the Convertible Debentures are outstanding, the payment
by the Parent, as and when due and payable (by scheduled maturity, acceleration,
demand or otherwise), of all amounts from time to time owing by it in respect of
the Securities Purchase Agreement, the Convertible Debentures and the other
Transaction Documents; and
(b) for so long as the Convertible Debentures are outstanding, the due
performance and observance by the Parent of all of its other obligations from
time to time existing in respect of any of the Transaction Documents, including
without limitation, the Parent's obligations with respect to any conversion or
redemption rights of the Secured Party under the Convertible Debentures.
ARTICLE 2.
PLEDGED PROPERTY; EVENT OF DEFAULT
Section 2.1. Pledged Property.
(a) As collateral security for all of the Obligations, the Company hereby
pledges to the Secured Party, and creates in the Secured Party for its benefit,
a continuing security interest in and to all of the Pledged Property whether now
owned or hereafter acquired.
(b) Without limiting the generality of the foregoing, as additional security
for the payment and performance of the Obligations, each Company hereby grants
to the Secured Party a continuing security interest in, and hereby collaterally
assigns to the Secured Party, all of such Company's right, title and interest in
and to each Deposit Account (as defined below) and in and to any deposits or
other sums at any time credited to each such Deposit Account. In connection
with the foregoing, each Company hereby authorizes and directs each bank or
other depository institution which maintains any Deposit Account to pay or
deliver to the Secured Party upon the Secured Party's written demand thereof
made at any time after the occurrence of an Event of Default has occurred all
balances in each Deposit Account with such depository for application to the
Obligations then outstanding.
(c) Simultaneously with the execution and delivery of this Agreement, the
Company shall make, execute, acknowledge, file, record and deliver to the
Secured Party any documents reasonably requested by the Secured Party to perfect
its security interest in the Pledged Property. Simultaneously with the
execution and delivery of this Agreement, the Company shall make, execute,
acknowledge and deliver to the Secured Party such documents and instruments,
including, without limitation, financing statements, certificates, affidavits
and forms as may, in the Secured Party's reasonable judgment, be necessary to
effectuate, complete
or perfect, or to continue and preserve, the security interest of the Secured
Party in the Pledged Property, and the Secured Party shall hold such documents
and instruments as secured party, subject to the terms and conditions contained
herein.
Section 2.2. Event of Default
An "Event of Default" shall be deemed to have occurred under this Agreement upon
an Event of Default under and as defined in the Convertible Debentures.
ARTICLE 3.
ATTORNEY-IN-FACT; PERFORMANCE
Section 3.1. Secured Party Appointed Attorney-In-Fact.
Upon the occurrence and during the continuance of an Event of Default: (a) the
Company hereby appoints the Secured Party as its attorney-in-fact, with full
authority in the place and stead of the Company and in the name of the Company
or otherwise, from time to time in the Secured Party's discretion to take any
action and to execute any instrument which the Secured Party may reasonably deem
necessary to accomplish the purposes of this Agreement, including, without
limitation, to receive and collect all instruments made payable to the Company
representing any payments in respect of the Pledged Property or any part thereof
and to give full discharge for the same; (b) the Secured Party may demand,
collect, receipt for, settle, compromise, adjust, xxx for, foreclose, or realize
on the Pledged Property as and when the Secured Party may determine, and (c) to
facilitate collection, the Secured Party may notify account debtors and obligors
on any Pledged Property to make payments directly to the Secured Party.
Section 3.2. Secured Party May Perform.
If the Company fails to perform any agreement contained herein, the Secured
Party, at its option, may itself perform, or cause performance of, such
agreement, and the expenses of the Secured Party incurred in connection
therewith shall be included in the Obligations secured hereby and payable by the
Company under Section 8.3.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Authorization; Enforceability.
Each of the parties hereto represents and warrants that it has taken all action
necessary to authorize the execution, delivery and performance of this Agreement
and the transactions contemplated hereby; and upon execution and delivery, this
Agreement shall constitute a valid and binding obligation of the respective
party, subject to applicable bankruptcy, insolvency, reorganization, moratorium
and similar laws affecting creditors' rights or by the principles governing the
availability of equitable remedies.
Section 4.2. Ownership of Pledged Property.
The Company represents and warrants that it is the legal and beneficial owner of
the Pledged Property free and clear of any lien, security interest, option or
other charge or encumbrance (each, a "Lien") except for the security interest
created by this Agreement and other Permitted Liens. For purposes of this
Agreement, "Permitted Liens" means: (1) the security interest created by this
Agreement, (2) existing Liens disclosed by the Company to the Secured Party in
any of the Transaction Documents; (3) inchoate Liens for taxes, assessments or
governmental charges or levies not yet due, as to which the grace period, if
any, related thereto has not yet expired, or being contested in good faith and
by appropriate proceedings for which adequate reserves have been established in
accordance with GAAP; (4) Liens of carriers, materialmen, warehousemen,
mechanics and landlords and other similar Liens which secure amounts which are
not yet overdue by more than 60 days or which are being contested in good faith
by appropriate proceedings; (5) licenses, sublicenses, leases or subleases
granted to other Persons not materially interfering with the conduct of the
business of the Company; (6) Liens securing capitalized lease obligations and
purchase money indebtedness incurred solely for the purpose of financing an
acquisition or lease; (7) easements, rights-of-way, restrictions, encroachments,
municipal zoning ordinances and other similar charges or encumbrances, and minor
title deficiencies, in each case not securing debt and not materially
interfering with the conduct of the business of the Company and not materially
detracting from the value of the property subject thereto; (8) Liens arising out
of the existence of judgments or awards which judgments or awards do not
constitute an Event of Default; (9) Liens incurred in the ordinary course of
business in connection with workers compensation claims, unemployment insurance,
pension liabilities and social security benefits and Liens securing the
performance of bids, tenders, leases and contracts in the ordinary course of
business, statutory obligations, surety bonds, performance bonds and other
obligations of a like nature (other than appeal bonds) incurred in the ordinary
course of business (exclusive of obligations in respect of the payment for
borrowed money); (10) Liens in favor of a banking institution arising by
operation of law encumbering deposits (including the right of set-off) and
contractual set-off rights held by such banking institution and which are within
the general parameters customary in the banking industry and only burdening
deposit accounts or other funds maintained with a creditor depository
institution; (11) usual and customary set-off rights in leases and other
contracts; and (12) escrows in connection with acquisitions and dispositions.
ARTICLE 5.
DEFAULT; REMEDIES; SUBSTITUTE COLLATERAL
Section 5.1 Method of Realizing Upon the Pledged Property: Other Remedies.
If any Event of Default shall have occurred and be continuing:
(a) The Secured Party may exercise in respect of the Pledged Property, in
addition to any other rights and remedies provided for herein or otherwise
available to it, all of the rights and remedies of a secured party upon default
under the Uniform Commercial Code (whether or not the Uniform Commercial Code
applies to the affected Pledged Property), and also may (i) take
absolute control of the Pledged Property, including, without limitation,
transfer into the Secured Party's name or into the name of its nominee or
nominees (to the extent the Secured Party has not theretofore done so) and
thereafter receive, for the benefit of the Secured Party, all payments made
thereon, give all consents, waivers and ratifications in respect thereof and
otherwise act with respect thereto as though it were the outright owner thereof,
(ii) require the Company to assemble all or part of the Pledged Property as
directed by the Secured Party and make it available to the Secured Party at a
place or places to be designated by the Secured Party that is reasonably
convenient to both parties, and the Secured Party may enter into and occupy any
premises owned or leased by the Company where the Pledged Property or any part
thereof is located or assembled for a reasonable period in order to effectuate
the Secured Party's rights and remedies hereunder or under law, without
obligation to the Company in respect of such occupation, and (iii) without
notice except as specified below and without any obligation to prepare or
process the Pledged Property for sale, (A) sell the Pledged Property or any part
thereof in one or more parcels at public or private sale, at any of the Secured
Party's offices or elsewhere, for cash, on credit or for future delivery, and at
such price or prices and upon such other terms as the Secured Party may deem
commercially reasonable and/or (B) lease, license or dispose of the Pledged
Property or any part thereof upon such terms as the Secured Party may deem
commercially reasonable. The Company agrees that, to the extent notice of sale
or any other disposition of the Pledged Property shall be required by law, at
least ten (10) days' notice to the Company of the time and place of any public
sale or the time after which any private sale or other disposition of the
Pledged Property is to be made shall constitute reasonable notification. The
Secured Party shall not be obligated to make any sale or other disposition of
any Pledged Property regardless of notice of sale having been given. The
Secured Party 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. The
Company hereby waives any claims against the Secured Party arising by reason of
the fact that the price at which the Pledged Property may have been sold at 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 Obligations, even if the
Secured Party accepts the first offer received and does not offer such Pledged
Property to more than one offeree, and waives all rights that the Company may
have to require that all or any part of such Pledged Property be marshaled upon
any sale (public or private) thereof. The Company hereby acknowledges that (i)
any such sale of the Pledged Property by the Secured Party may be made without
warranty, (ii) the Secured Party may specifically disclaim any warranties of
title, possession, quiet enjoyment or the like, and (iii) such actions set forth
in clauses (i) and (ii) above shall not adversely affect the commercial
reasonableness of any such sale of Pledged Property.
(b) Any cash held by the Secured Party as Pledged Property and all cash
proceeds received by the Secured Party in respect of any sale of or collection
from, or other realization upon, all or any part of the Pledged Property shall
be applied (after payment of any amounts payable to the Secured Party pursuant
to Section 8.3 hereof) by the Secured Party against, all or any part of the
Obligations in such order as the Secured Party shall elect, consistent with the
provisions of the Securities Purchase Agreement. Any surplus of such cash or
cash proceeds held by the Secured Party and remaining after the indefeasible
payment in full in cash of all of the Obligations shall be paid over to
whomsoever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct.
(c) In the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the Secured Party is
legally entitled, the Company shall be liable for the deficiency, together with
interest thereon at the rate specified in the Convertible Debentures for
interest on overdue principal thereof or such other rate as shall be fixed by
applicable law, together with the costs of collection and the reasonable fees,
costs, expenses and other client charges of any attorneys employed by the
Secured Party to collect such deficiency.
(d) The Company hereby acknowledges that if the Secured Party complies with
any applicable state, provincial, or federal law requirements in connection with
a disposition of the Pledged Property, such compliance will not adversely affect
the commercial reasonableness of any sale or other disposition of the Pledged
Property.
(e) The Secured Party shall not be required to marshal any present or future
collateral security (including, but not limited to, this Agreement and the
Pledged Property) for, or other assurances of payment of, the Obligations or any
of them or to resort to such collateral security or other assurances of payment
in any particular order, and all of the Secured Party's rights hereunder and in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that the Company lawfully may, the Company hereby agrees that it will
not invoke any law relating to the marshaling of collateral which might cause
delay in or impede the enforcement of the Secured Party's rights under this
Agreement or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that it lawfully may, the Company hereby irrevocably waives the
benefits of all such laws.
Section 5.2 Duties Regarding Pledged Property.
The Secured Party shall have no duty as to the collection or protection of the
Pledged Property or any income thereon or as to the preservation of any rights
pertaining thereto, beyond the safe custody and reasonable care of any of the
Pledged Property actually in the Secured Party's possession.
ARTICLE 6.
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, from the date hereof and until the
Obligations have been fully paid and satisfied or the Convertible Debentures
have been fully converted, unless the Secured Party shall consent otherwise in
writing (as provided in Section 8.4 hereof):
Section 6.1. Existence, Properties, Etc.
(a) The Company shall do, or cause to be done, all things, or proceed with
due diligence with any actions or courses of action, that may be reasonably
necessary (i) to maintain Company's due organization, valid existence and good
standing under the laws of its state of incorporation, and (ii) to preserve and
keep in full force and effect all qualifications, licenses and
registrations in those jurisdictions in which the failure to do so could have a
Material Adverse Effect (as defined below); and (b) the Company shall not do, or
cause to be done, any act impairing the Company's corporate power or authority
(i) to carry on the Company's business as now conducted, and (ii) to execute or
deliver this Agreement or any other document delivered in connection herewith,
including, without limitation, any UCC-1 Financing Statements required by the
Secured Party (which other loan instruments collectively shall be referred to as
the "Loan Instruments") to which it is or will be a party, or perform any of its
obligations hereunder or thereunder. For purpose of this Agreement, the term
"Material Adverse Effect" shall mean any material and adverse affect as
determined by Secured Party in its reasonable discretion, whether individually
or in the aggregate, upon (a) the Company's assets, business, operations,
properties or condition, financial or otherwise; (b) the Company's ability to
make payment as and when due of all or any part of the Obligations; or (c) the
Pledged Property.
Section 6.2. Financial Statements and Reports.
The Company shall furnish to the Secured Party within a reasonable time such
financial data as the Secured Party may reasonably request.
Section 6.3. Accounts and Reports.
The Company shall maintain a standard system of accounting in accordance with
generally accepted accounting principles consistently applied ("GAAP") and
provide, at its sole expense, to the Secured Party the following:
(a) as soon as available, a copy of any notice or other communication
alleging any nonpayment or other material breach or default, or any foreclosure
or other action respecting any material portion of its assets and properties,
received respecting any of the indebtedness of the Company in excess of $500,000
(other than the Obligations), or any demand or other request for payment under
any guaranty, assumption, purchase agreement or similar agreement or arrangement
respecting the indebtedness or obligations of others in excess of $500,000; and
(b) within fifteen (15) days after the making of each submission or filing,
a copy of any report, financial statement, notice or other document, whether
periodic or otherwise, submitted to the shareholders of the Company, or
submitted to or filed by the Company with any governmental authority involving
or affecting (i) the Company that could reasonably be expected to have a
Material Adverse Effect; (ii) the Obligations; (iii) any part of the Pledged
Property; or (iv) any of the transactions contemplated in this Agreement or the
Loan Instruments (except, in each case, to the extent any such submission,
filing, report, financial statement, notice or other document is posted on XXXXX
Online).
Section 6.4. Maintenance of Books and Records; Inspection.
The Company shall maintain its books, accounts and records in accordance with
GAAP, and permit the Secured Party, its officers and employees and any
professionals designated by the Secured Party in writing, at any time during
normal business hours and upon reasonable notice to visit and inspect any of its
properties (including but not limited to the collateral security
described in the Transaction Documents and/or the Loan Instruments), corporate
books and financial records, and to discuss its accounts, affairs and finances
with any employee, officer or director thereof (it being agreed that, unless an
Event of Default shall have occurred and be continuing, there shall be no more
than two (2) such visits and inspections in any Fiscal Year).
Section 6.5. Maintenance and Insurance.
(a) The Company shall maintain or cause to be maintained, at its own
expense, all of its material assets and properties in good working order and
condition, ordinary wear and tear excepted, making all necessary repairs thereto
and renewals and replacements thereof.
(b) The Company shall maintain or cause to be maintained, at its own
expense, insurance in form, substance and amounts (including deductibles), which
the Company deems reasonably necessary to the Company's business, (i) adequate
to insure all assets and properties of the Company of a character usually
insured by persons engaged in the same or similar business against loss or
damage resulting from fire or other risks included in an extended coverage
policy; (ii) against public liability and other tort claims that may be incurred
by the Company; (iii) as may be required by the Transaction Documents and/or
applicable law and (iv) as may be reasonably requested by Secured Party, all
with financially sound and reputable insurers.
Section 6.6. Contracts and Other Collateral.
The Company shall perform all of its obligations under or with respect to each
instrument, receivable, contract and other intangible included in the Pledged
Property to which the Company is now or hereafter will be party on a timely
basis and in the manner therein required, including, without limitation, this
Agreement, except to the extent the failure to so perform such obligations would
not reasonably be expected to have a Material Adverse Effect.
Section 6.7. Defense of Collateral, Etc.
The Company shall defend and enforce its right, title and interest in and to any
part of: (a) the Pledged Property; and (b) if not included within the Pledged
Property, those assets and properties whose loss would reasonably be expected to
have a Material Adverse Effect, each against all manner of claims and demands on
a timely basis to the full extent permitted by applicable law (other than any
such claims and demands by holders of Permitted Liens).
Section 6.8. Taxes and Assessments.
The Company shall (a) file all material tax returns and appropriate schedules
thereto that are required to be filed under applicable law, prior to the date of
delinquency (taking into account any extensions of the original due date), (b)
pay and discharge all material taxes, assessments and governmental charges or
levies imposed upon the Company, upon its income and profits or upon any
properties belonging to it, prior to the date on which penalties attach thereto,
and (c) pay all material taxes, assessments and governmental charges or levies
that, if
unpaid, might become a lien or charge upon any of its properties; provided,
however, that the Company in good faith may contest any such tax, assessment,
governmental charge or levy described in the foregoing clauses (b) and (c) so
long as appropriate reserves are maintained with respect thereto if and to the
extent required by GAAP.
Section 6.9. Compliance with Law and Other Agreements.
The Company shall maintain its business operations and property owned or used in
connection therewith in compliance with (a) all applicable federal, state and
local laws, regulations and ordinances governing such business operations and
the use and ownership of such property, and (b) all agreements, licenses,
franchises, indentures and mortgages to which the Company is a party or by which
the Company or any of its properties is bound, except where the failure to so
comply would not reasonably be expected to have a Material Adverse Effect.
Section 6.10. Notice of Default.
The Company shall give written notice to the Secured Party of the occurrence of
any Event of Default.
Section 6.11. Notice of Litigation.
The Company shall give notice, in writing, to the Secured Party of (a) any
actions, suits or proceedings wherein the amount at issue is in excess of
$250,000, instituted by any persons against the Company, or affecting any of the
assets of the Company, and (b) any dispute, not resolved within fifteen (15)
days of the commencement thereof, between the Company on the one hand and any
governmental or regulatory body on the other hand, which might reasonably be
expected to have a Material Adverse Effect on the business operations or
financial condition of the Company.
Section 6.13. Future Subsidiaries.
If the Company shall hereafter create or acquire any subsidiary, simultaneously
with the creation or acquisition of such subsidiary, the Company shall cause
such subsidiary to grant to the Secured Party a security interest of the same
tenor as created under this Agreement.
Section 6.14. Establishment of Deposit Account, Dominion Account Agreements.
Within ten (10) days of the date hereof, each Company, the Secured Party, and
each applicable bank or other depository institution shall enter into a deposit
account agreement ("Deposit Account Agreement") in the form of Exhibit B with
respect to each of the Company's savings, passbook, money market or other
depository accounts, and all certificates of deposit, maintained by each Company
with any bank, savings and loan association, credit union or other depository
institution (each, a "Deposit Account") maintained or used by each Company
providing dominion and control over such accounts to the Secured Party such that
upon notice by the Secured Party to such bank or other depository institution of
the occurrence of an Event of
Default all actions under such account shall be taken solely at the Secured
Party's direction. Each Company's current Deposit Accounts are set forth on
Schedule 6.14 attached hereto.
Each Company shall cause all cash, all collections and proceeds from accounts
receivable, all receipts from credit card payments, and all proceeds from the
sale of any Pledged Property to be deposited into a Deposit Account in the
ordinary course of business and consistent with past practices.
While any Convertible Debentures remain outstanding, the Company shall have
valid and effective Deposit Account Agreements in place at all times with
respect to all of its Deposit Accounts. No Deposit Account shall be
established, used or maintained by the Company unless it first enters into a
Deposit Account Agreement.
With respect to each Deposit Account, from an after the occurrence of an Event
of Default, the Secured Party shall have the right, at any time and from time to
time, to exercise its rights under such Deposit Account Agreement, including,
for the avoidance of any doubt, the exclusive right to give instructions to the
financial institution at which such Deposit Account is maintained as to the
disposition of funds or other property on deposit therein or credited thereto.
The Secured Party hereby covenants and agrees that it will not send any such
notice to a financial institution at which any such Deposit Account is
maintained directing the disposition of funds or other property therein unless
and until the occurrence of an Event of Default.
ARTICLE 7.
NEGATIVE COVENANTS
The Company covenants and agrees that, from the date hereof until the
Obligations have been fully paid and satisfied, the Company shall not, unless
the Secured Party shall consent otherwise in writing:
Section 7.1. Liens and Encumbrances.
Directly or indirectly make, create, incur, assume or permit to exist any Lien
in, to or against any part of the Pledged Property other than Permitted Liens.
Section 7.2. Restriction on Redemption and Cash Dividends
Directly or indirectly, redeem, repurchase or declare or pay any cash dividend
or distribution on its capital stock without the prior express written consent
of the Secured Party.
Section 7.3. Incurrence of Indebtedness.
Directly or indirectly, incur or guarantee, assume or suffer to exist any
indebtedness, other than the indebtedness evidenced by the Convertible
Debentures and other Permitted Indebtedness. "Permitted Indebtedness" means:
(i) indebtedness evidenced by Convertible Debentures; (ii) indebtedness
described on the Disclosure Schedule to the Securities Purchase
Agreement; (iii) indebtedness incurred solely for the purpose of financing the
acquisition or lease of any equipment by the Company, including capital lease
obligations with no recourse other than to such equipment; (iv) indebtedness (A)
the repayment of which has been subordinated to the payment of the Convertible
Debentures on terms and conditions acceptable to the Secured Party, including
with regard to interest payments and repayment of principal, (B) which does not
mature or otherwise require or permit redemption or repayment prior to or on the
91st day after the maturity date of any Convertible Debentures then outstanding;
and (C) which is not secured by any assets of the Company; (v) indebtedness
solely between the Company and/or one of its domestic subsidiaries, on the one
hand, and the Company and/or one of its domestic subsidiaries, on the other
which indebtedness is not secured by any assets of the Company or any of its
subsidiaries, provided that (x) in each case a majority of the equity of any
such domestic subsidiary is directly or indirectly owned by the Company, such
domestic subsidiary is controlled by the Company and such domestic subsidiary
has executed a security agreement in the form of this Agreement and (y) any such
loan shall be evidenced by an intercompany note that is pledged by the Company
or its subsidiary, as applicable, as collateral pursuant to this Agreement; (vi)
reimbursement obligations in respect of letters of credit issued for the account
of the Company or any of its subsidiaries for the purpose of securing
performance obligations of the Company or its subsidiaries incurred in the
ordinary course of business so long as the aggregate face amount of all such
letters of credit does not exceed $500,000 at any one time; and (vii) renewals,
extensions and refinancing of any indebtedness described in clauses (i) or (iii)
of this subsection.
Section 7.4. Places of Business.
Change the location of its chief place of business, chief executive office or
any place of business disclosed to the Secured Party, unless such change in
location is to a different location within the United States and the Company
provides notice to the Secured Party of new location within 10 days' of such
change in location.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices.
All notices or other communications required or permitted to be given pursuant
to this Agreement shall be in writing and shall be considered as duly given on:
(a) the date of delivery, if delivered in person or by nationally recognized
overnight delivery service or (b) five (5) days after mailing if mailed from
within the continental United States by certified mail, return receipt requested
to the party entitled to receive the same:
If to the Secured Party: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx-Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx Xxxxxxxx Xxxxx, Esq.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
And if to the Company: LocatePLUS Holdings Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone:
Facsimile:
With a copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention:
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address by giving notice to the other party
stating its new address. Commencing on the tenth (10th) day after the giving of
such notice, such newly designated address shall be such party's address for the
purpose of all notices or other communications required or permitted to be given
pursuant to this Agreement.
Section 8.2. Severability.
If any provision of this Agreement shall be held invalid or unenforceable, such
invalidity or unenforceability shall attach only to such provision and shall not
in any manner affect or render invalid or unenforceable any other severable
provision of this Agreement, and this Agreement shall be carried out as if any
such invalid or unenforceable provision were not contained herein.
Section 8.3. Expenses.
In the event of an Event of Default, the Company will pay to the Secured Party
the amount of any and all reasonable out-of-pocket expenses, including the
reasonable fees and expenses of its counsel, which the Secured Party may incur
in connection with: (i) the custody or preservation of, or the sale, collection
from, or other realization upon, any of the Pledged Property; (ii) the exercise
or enforcement of any of the rights of the Secured Party hereunder or (iii) the
failure by the Company to perform or observe any of the provisions hereof.
Section 8.4. Waivers, Amendments, Etc.
The Secured Party's delay or failure at any time or times hereafter to require
strict performance by Company of any undertakings, agreements or covenants shall
not waive, affect, or diminish any right of the Secured Party under this
Agreement to demand strict compliance and performance herewith. Any waiver by
the Secured Party of any Event of Default shall not waive or affect any other
Event of Default, whether such Event of Default is prior or subsequent thereto
and whether of the same or a different type. None of the undertakings,
agreements and covenants of the Company contained in this Agreement, and no
Event of Default, shall be deemed to have been waived by the Secured Party, nor
may this Agreement be amended, changed or modified, unless such waiver,
amendment, change or modification is evidenced by an instrument in writing
specifying such waiver, amendment, change or modification and signed by the
Secured Party in the case of any such waiver, and signed by the Secured Party
and the Company in the case of any such amendment, change or modification.
Section 8.5. Continuing Security Interest; Partial Release.
(a) This Agreement shall create a continuing security interest in the Pledged
Property and shall: (i) remain in full force and effect until payment or
conversion in full of the Convertible Debentures; (ii) be binding upon the
Company and its successors and assigns; and (iii) inure to the benefit of the
Secured Party and its successors and assigns. Upon the payment or satisfaction
in full or conversion in full of the Convertible Debentures, this Agreement and
the security interest created hereby shall terminate, and, in connection
therewith, the Company shall be entitled to the return, at its expense, of such
of the Pledged Property as shall not have been sold in accordance with Section
5.2 hereof or otherwise applied pursuant to the terms hereof and the Secured
Party shall deliver to the Company such documents as the Company shall
reasonably request to evidence such termination.
(b) Effective upon the closing of a disposition of any Pledged Property,
provided the Secured Party consents in writing prior to such disposition or such
disposition is made in the ordinary course of business, the security interest
granted hereunder in the Pledged Property so disposed of shall terminate and the
Secured Party shall deliver such documents as the Company shall reasonably
request to evidence such termination; provided, however, the security interest
granted hereunder in all remaining Pledged Property shall remain in full force
and effect.
Section 8.6. Independent Representation.
Each party hereto acknowledges and agrees that it has received or has had the
opportunity to receive independent legal counsel of its own choice and that it
has been sufficiently apprised of its rights and responsibilities with regard to
the substance of this Agreement.
Section 8.7. Applicable Law: Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with the laws
of the State of New Jersey without regard to the principles of conflict of laws.
The parties further agree
that any action between them shall be heard in Xxxxxx County, New Jersey, and
expressly consent to the jurisdiction and venue of the Superior Court of New
Jersey, sitting in Xxxxxx County and the United States District Court for the
District of New Jersey sitting in Newark, New Jersey for the adjudication of any
civil action asserted pursuant to this Paragraph.
Section 8.8. Waiver of Jury Trial.
AS A FURTHER INDUCEMENT FOR THE SECURED PARTY TO ENTER INTO THIS AGREEMENT AND
TO MAKE THE FINANCIAL ACCOMMODATIONS TO THE COMPANY, THE COMPANY HEREBY WAIVES
ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS
AGREEMENT AND/OR ANY AND ALL OTHER DOCUMENTS RELATED TO THIS TRANSACTION.
Section 8.9. Entire Agreement.
This Agreement constitutes the entire agreement among the parties and supersedes
any prior agreement or understanding among them with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement as of the date first above written.
COMPANY:
LOCATEPLUS HOLDINGS CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
COMPANY:
LOCATEPLUS CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
COMPANY:
WORLDWIDE INFORMATION, INC.
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
COMPANY:
CERTIFION CORPORATION
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
COMPANY:
DATAPHANT, INC.
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
COMPANY:
METRIGENICS, INC.
By: /s/ Xxx X. Xxxxxxxxx
Name: Xxx X. Xxxxxxxxx
Title: Chief Executive Officer
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as
of the date first above written.
SECURED PARTY:
CORNELL CAPITAL PARTNERS, L.P.
BY: YORKVILLE ADVISORS, LLC
ITS: INVESTMENT MANAGER
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Portfolio Manager
