29
EXHIBIT 10.57
SECURITY AGREEMENT
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SECURITY AGREEMENT, dated as of May 5, 2000, between xXXX.xxx, a
Delaware corporation (the "Debtor"), and XXXX.XXX, Inc., a Delaware corporation
(the "Secured Party").
1. Grant of Security Interest. The Debtor, for valuable
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consideration, receipt of which is hereby acknowledged, hereby grants to the
Secured Party, in order to secure the payment when due, whether by acceleration
or otherwise, of the Indebtedness (as that term is defined below) a security
interest in and assignment of, and agrees and acknowledges that the Secured
Party has and shall continue to have a security interest in and assignment of,
any and all of the following property of Debtor, whenever acquired or arising
and wherever located (together, the "Collateral"):
(i) Any and all of Debtor's Tangibles (as that term is defined
below);
(ii) Any and all of Debtor's Intangibles (as that term is defined
below); and
(iii) The products, proceeds and accessions of any and all of the
foregoing.
The term "Collateral" shall in all events include the items of collateral
listed in Schedule II hereto which reproduces in full the definition of
"Collateral" contained in the Loan Commitment, dated April 5, 2000, from
Secured Party to Debtor.
2. Definitions. (a) The term "Indebtedness" as used herein shall
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mean the following:
(i) Any and all obligations of Debtor with respect to the payment of
principal and interest or otherwise to the Secured Party on the loans made
by Secured Party (and the promissory note evidencing such loans), under
the Term Loan Agreement, dated as of May 5, 2000, between the Debtor, as
borrower, and the Secured Party, as lender, as the same may be amended
from time to time, and any extension or renewals of such loans (the "Term
Loan Agreement"); and
(ii) Any and all other obligations of Debtor to Secured Party,
however created or evidenced, whether now
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existing or hereafter arising and any extension or renewals thereof.
(b) The term "Intangibles" as used herein includes and shall be
deemed to mean "accounts", "instruments", "documents", "chattel paper",
"drafts", "checks", and "general intangibles" and each of them, as the
foregoing terms are defined in the Uniform Commercial Code, as in effect in the
State of California, and all other intangible assets now owned or hereafter
acquired by Debtor.
(c) The term "Tangibles" as used herein includes and shall be deemed
to mean "inventory" and "equipment" as defined in said Uniform Commercial Code
and all goods and tangible personal property now owned or hereafter acquired by
Debtor.
(d) Terms not expressly defined herein which are defined in the
Uniform Commercial Code as in effect in the State of California have the same
meaning herein as in said Code.
(e) Terms not expressly defined herein which are defined in the Term
Loan Agreement have the same meaning herein as in said Term Loan Agreement.
(f) As used in this Security Agreement and when required by the
context, each number (singular and plural) shall include all numbers, and each
gender shall include all genders; and unless the context otherwise requires,
the word "person" shall include "corporation, firm or association."
3. Warranties, Covenants and Agreements of Debtor. Debtor warrants,
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covenants and agrees that:
(a) Except for the security interest granted hereby and except as
permitted by the Term Loan Agreement, Debtor is, and as to Collateral acquired
after the date hereof Debtor shall and will be at the time of acquisition the
owner and holder of the Collateral free from any adverse claim, security
interest, encumbrance, lien, charge, or other right, title or interest of any
person other than Secured Party and covenants that at all times the Collateral
will be and remain free of all such adverse claims, security interests, or
other liens or encumbrances; Debtor has full power and lawful authority to
sell, assign and transfer the Collateral to Secured Party and to grant to
Secured Party a first and prior security interest therein as herein provided;
the execution and delivery and the performance hereof are not in contravention
of any charter or by-law provision or of
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any indenture, agreement or undertaking to which Debtor is a party or by which
Debtor or its property are bound; and Debtor will defend the Collateral against
all claims and demands of all persons at any time claiming the same or any
interest therein. Any officer, agent or representative acting for or on behalf
of Debtor in connection with this Security Agreement or any aspect thereof, or
entering into or executing this Security Agreement or any financing statement
on behalf of Debtor, has been duly authorized so to do, and is fully empowered
to act for and represent Debtor in connection with this Security Agreement and
all matters related thereto or in connection therewith.
(b)(i) Except with respect to those items listed in Schedule 3(b)
hereto, Debtor has not heretofore signed any financing statement or security
agreement which covers any of the Collateral, and no such financing statement
or security agreement is now on file in any public office.
(ii) As long as any amount remains unpaid on any of the Indebtedness or
any additional borrowings may be made by Debtor under any agreements entered
into in connection with the Indebtedness, except as expressly permitted by any
such agreements, (i) Debtor will not enter into or execute any security
agreement or any financing statement covering the Collateral, other than those
security agreements and financing statements in favor of Secured Party
hereunder, and further (ii) there will not be on file in any public office any
financing statement or statements (or any documents or papers filed as such)
covering the Collateral, other than financing statements in favor of Secured
Party hereunder, unless in any case the prior written consent of Secured Party
shall have been obtained.
(iii) Debtor authorizes Secured Party to file, in jurisdictions where
this authorization will be given effect, a financing statement signed only by
Secured Party covering the Collateral, and hereby appoints Secured Party as
Debtor's attorney-in-fact to sign and file any such financing statements
covering the Collateral. At the request of Secured Party, Debtor will join
Secured Party in executing such documents as Secured Party may determine, from
time to time to be necessary or desirable under provisions of any applicable
Uniform Commercial Code in effect where the Collateral is located or where the
Debtor conducts business; without limiting the generality of the foregoing,
Debtor agrees to join Secured Party, at Secured Party's request, in executing
one or more financing statements in form satisfactory to Secured Party, and
Debtor will pay the costs of filing or recording the same, or of filing or
recording this
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Security Agreement, in all public offices at any time and from time to time,
whenever filing or recording of any such financing statement or of this
Security Agreement is deemed by Secured Party to be necessary or desirable. In
connection with the foregoing, it is agreed and understood between the parties
hereto (and Secured Party is hereby authorized to carry out and implement this
agreement and understanding and Debtor hereby agrees to pay the costs thereof)
that Secured Party may, at any time or times, file as a financing statement any
counterpart, copy, or reproduction of this Security Agreement.
(c) Except as specifically otherwise permitted or provided herein,
Debtor's Tangibles shall remain in Debtor's possession and control at all times
at Debtor's risk of loss, and are now kept and at all times shall be kept at
the addresses and locations set forth on Schedule I hereto. If Debtor is using
or will use all or any part of the advances made, obligations incurred, or
credit extended by Secured Party to acquire rights in, possession of, or use of
Tangibles, then Debtor agrees that, within thirty (30) days after Debtor first
receives possession thereof, such Tangibles will be brought to and kept at one
of the addresses and locations set forth on Schedule I hereto.
(d) Debtor will promptly notify Secured Party of any change in any
of addresses or locations set forth on Schedule I hereto and of any new
addresses or locations where Tangibles or other goods, documents, or
instruments are or may be kept, and Debtor will not remove (except in the
ordinary course of its business) the Tangibles or such goods, documents, or
instruments, or any part thereof, from the addresses and locations described
and specified above without the prior written consent of Secured Party.
(e) With respect to accounts, general intangibles and chattel paper
included in the Collateral, Debtor represents and warrants and agrees that
Debtor's books and records with respect to such Collateral are and will be kept
at Debtor's office located at 0000 Xxxxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000,
and such address is that of Debtor's chief executive offices; and Debtor
further covenants and agrees that Debtor will not change such address without
first obtaining Secured Party's prior written consent to such change and filing
such new or additional financing statements and making such other filings or
recordings as Secured Party shall deem necessary or appropriate.
(f) Debtor further covenants and agrees that, if any certificates of
title or similar documents are at any time issued
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or outstanding with respect to any of the Collateral, Debtor will promptly
advise Secured Party thereof, and Debtor will promptly cause the interest of
Secured Party to be properly noted thereon, and if any certificates of title or
similar documents are so issued or outstanding at the time this Security
Agreement is executed by or on behalf of Debtor, then Debtor shall have caused
the interest of Secured Party so to have been properly noted at or before the
time of such execution; and Debtor will further promptly deliver to Secured
Party any such certificate of title or similar document.
(g) Except as expressly permitted under Section 9(c) of the Term
Loan Agreement, Debtor will not sell or offer to sell or otherwise transfer or
encumber or dispose of the Collateral or any interest therein without the prior
written consent of Secured Party.
(h) Debtor will not release or surrender any guaranty, suretyship
agreement or security for any of Debtor's Intangibles at any time or times
except incident to payment in full thereof.
(i) Debtor will take all action necessary to maintain and preserve
all security for Debtor's Intangibles at all times as valid, subsisting and
perfected as to all the property affected and covered thereby and to maintain
the priority and validity of the security for the Intangibles as against the
rights, claims and interests of all other persons.
(j) Notwithstanding anything to the contrary contained herein, it is
understood and agreed that if for any reason Tangibles are at any time kept or
located at locations other than those specified or which may hereafter be
consented to by Secured Party, Secured Party shall nevertheless have and retain
a security interest therein.
4. Special Provisions - Intangibles. (a) After the occurrence of an
--------------------------------
Event of Default, Secured Party shall have the right, exercisable at any time,
to take control of all proceeds of the Collateral (whether cash proceeds or
non-cash proceeds) and to notify any and all account debtors, lessees, or other
obligors to make payment on any and all accounts, leases, or obligations
directly to Secured Party; and, in such circumstances, Debtor will upon request
of Secured Party likewise notify any and all such account debtors, lessees or
other obligors to make payment directly to Secured Party. Upon demand by
Secured Party, all proceeds of Intangibles, whether such proceeds be cash
proceeds or non-cash proceeds, received by
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Debtor shall be held in trust by Debtor for the account of Secured Party, shall
not be commingled with any other funds, accounts, monies or property of Debtor,
and shall be forthwith accounted for, paid over, transmitted and delivered to
Secured Party in the form as received by Debtor promptly upon receipt thereof
by Debtor.
(b) At any time after demand as hereinabove provided, and in any
event, without demand, after any of the Indebtedness shall become due, whether
by acceleration or otherwise, and at any time after the occurrence of an Event
of Default under the Term Loan Agreement and so long as such Event of Default
shall be continuing, Secured Party shall have the right in its own name or in
the name of Debtor to demand, collect, receive, receipt for, xxx for, compound
and give acquittance for, any and all amounts due or to become due on the
Intangibles and to endorse the name of Debtor on all checks, drafts, commercial
paper and other instruments given in payment or part payment thereof, and in
its discretion to settle, compromise, prosecute or defend any action, claim or
proceeding with respect thereto which Secured Party may deem necessary or
appropriate to protect and preserve and realize upon the security interest and
collateral assignment of Secured Party in the Intangibles and the proceeds
thereof and security therefor including, without limitation, the right to sell,
assign, pledge, transfer and make any agreement respecting or otherwise deal
with the Intangibles.
(c) Returned or repossessed goods arising from or relating to any of
Debtor's Intangibles shall be and become a part of the Tangibles included in
the Collateral hereunder.
5. Special Provisions - Tangibles. (a) Any of Debtor's Tangibles in
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the possession of persons other than Debtor must be represented by documents
issued by the person in possession thereof, in form acceptable to Secured
Party, which documents must, upon the reasonable request of the Secured Party,
be delivered to Secured Party and must be either negotiable documents issued in
the name of Debtor or non-negotiable documents issued in the name of Secured
Party or on which the security interest of Secured Party has been noted by the
issuer thereof. Debtor warrants that all such documents are and shall be
genuine, valid and in all respects what they purport to be and that the
Tangibles described therein will be identified or fungible portions of an
identified mass, and that said documents are and will be subject to no terms or
conditions other than is noted therein or thereon.
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(b) At any time after any of the Indebtedness shall become due,
whether by acceleration or otherwise, and after the occurrence of an Event of
Default under the Term Loan Agreement and so long as such Event of Default
shall be continuing, all proceeds of Debtor's Tangibles, whether cash proceeds
or non-cash proceeds, and including, without limitation, proceeds that
constitute Intangibles or that are included in the Collateral as Intangibles,
and proceeds that represent the proceeds of Intangibles, shall be received and
held by Debtor in trust for Secured Party, shall not be commingled with any
other funds, accounts, monies or property of Debtor, and shall be promptly
accounted for, paid over and delivered to Secured Party in the form as received
by Debtor upon receipt thereof by Debtor.
(c) Debtor will promptly report to Secured Party any occurrence or
condition known to or which becomes known to Debtor having any material adverse
effect upon Debtor's Tangibles.
6. Cash Proceeds - General. All cash proceeds of Debtor's Tangibles
-----------------------
or Debtor's Intangibles shall be placed only in a Bank Account.
7. Further Agreements Between the Debtor and the Secured Party. (a)
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Secured Party shall never be under any obligation to collect, attempt to
collect, protect or enforce the Collateral or any security therefor, which
Debtor agrees, and undertakes to do at Debtor's expense, but Secured Party may
do so in its discretion at any time after any of the Indebtedness shall become
due, whether by acceleration or otherwise, and after the occurrence of an Event
of Default and so long as such Event of Default shall be continuing, under the
Term Loan Agreement and at such time Secured Party shall have the right to take
any steps by judicial process or otherwise it may deem proper to effect the
collection of all or any portion of the Collateral or to protect or to enforce
the Collateral or any security therefor. All expenses (including, without
limitation, attorneys' fees and expenses) incurred or paid by Secured Party in
connection with or incident to any such collection or attempt to collect the
Collateral or actions to protect or enforce the Collateral or any security
therefor shall be borne by Debtor or reimbursed by Debtor to Secured Party upon
demand. The proceeds of collection of the Intangibles or other proceeds
received by Secured Party as a result of any such actions in collecting or
enforcing or protecting the Collateral shall be held by Secured Party without
liability for interest thereon and may be applied by Secured Party as Secured
Party may deem appropriate toward payment of any
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of the Indebtedness secured hereby in such order or manner as Secured Party may
elect.
(b) In the event Secured Party shall pay any such taxes,
assessments, interests, costs, penalties or expenses incident to or in
connection with the collection of the Collateral or protection or enforcement
of the Collateral or any security therefor, Debtor, upon demand of Secured
Party, shall pay to Secured Party the full amount thereof with interest at a
rate per annum equal to the rate of interest on loans made pursuant to the Term
Loan Agreement; and so long as Secured Party shall be entitled to any such
payment, this Security Agreement shall operate as security therefor as fully
and to the same extent as it operates as security for payment of the other
Indebtedness secured hereunder, and for the enforcement of such repayment
Secured Party shall have every right and remedy provided for enforcement of
payment of the Indebtedness.
(c) In the event that the Collateral or any part thereof shall now
or hereafter become so related to particular real estate that an interest in it
may arise under the real estate laws of the state in which such real estate is
located, then Debtor shall immediately notify Secured Party of such fact and
take all steps and furnish all information as Secured Party shall reasonably
request for the purpose of creating or extending (as the case may be) a valid
and enforceable lien in such Collateral, including making such additional
filings or recordings, at Debtor's expense, as Secured Party shall deem
necessary or appropriate.
(d) In the event that the Collateral or any part thereof shall now
or hereafter be of a type or nature that perfection of a security interest in
such Collateral is not governed by the Uniform Commercial Code and/or filings
made pursuant thereto, or shall be of a type or nature such that alternative or
additional assignments, notices, acknowledgments by third-parties, filings, or
other acts or instruments are necessary or desirable in order to create, extend
or perfect a security interest or other lien with respect thereto, then Debtor
shall immediately notify Secured Party of such fact and take all steps and
furnish all information as Secured Party shall reasonably request for the
purpose of creating or extending (as the case may be) or perfecting a valid and
enforceable security interest and/or lien in such Collateral, including making
such additional filings or recordings at Debtor's expense as Secured Party
shall deem necessary or appropriate.
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8. Remedies. (a) After any of the Indebtedness shall become due,
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whether by acceleration or otherwise, and upon the occurrence of an Event of
Default in the Term Loan Agreement, in addition to any other remedies provided
for in any of the agreements relating to any of the Indebtedness or available
under applicable law, Secured Party shall have and may exercise with reference
to the Collateral and Indebtedness any or all of the rights and remedies of a
secured party under the Uniform Commercial Code in effect in the State of
California, and as otherwise granted herein or under any other applicable law
or under any other agreement executed by Debtor, including, without limitation,
the right and power to sell, at public or private sale or sales, or otherwise
dispose of, lease or otherwise utilize the Collateral and any part or parts
thereof in any manner authorized or permitted under said Uniform Commercial
Code after default by a debtor, and to apply the proceeds thereof toward
payment of any costs and expenses and attorneys' fees and expenses thereby
incurred by Secured Party and toward payment of the Indebtedness in such order
or manner as Secured Party may elect. Specifically and without limiting the
foregoing, Secured Party may require Debtor to assemble the Collateral or any
security therefor and make it available to Secured Party at a place to be
designated by Secured Party; and Secured Party shall have the right to take
possession of all or any part of the Collateral or any security therefor and of
all books, records, papers and documents of Debtor or in Debtor's possession or
control relating to the Collateral which are not already in Secured Party's
possession, and for such purpose may enter upon any premises upon which any of
the Collateral or any security therefor or any of said books, records, papers
and documents are situated and remove the same therefrom without any liability
for trespass or damages thereby occasioned. To the extent permitted by law,
Debtor expressly waives any notice of sale or other disposition of the
Collateral and all other rights or remedies of Debtor or formalities prescribed
by law relative to sale or disposition of the Collateral or exercise of any
other right or remedy of Secured Party existing after default hereunder; and to
the extent any such notice is required and cannot be waived, Debtor agrees that
if such notice is given in the manner provided in Section 9 hereof at least
three (3) days before the time of the sale or disposition, such notice shall be
deemed reasonable and shall fully satisfy any requirement for giving of said
notice.
(b) After any of the Indebtedness shall become due, whether by
acceleration or otherwise, and at any time after the occurrence of an Event of
Default under the Term Loan Agreement
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and so long as such Event of Default shall be continuing, Secured Party is
expressly granted the right, at its option, to transfer at any time to itself
or to its nominee the Collateral, or any part thereof, and to receive the
payments, collections, monies, income, proceeds or benefits attributable or
accruing thereto and to hold the same as security for the Indebtedness or to
apply it on the principal and interest or other amounts owing on any of the
Indebtedness in such order or manner as Secured Party may elect.
(c) All rights to marshalling of assets of Debtor, including any
such right with respect to the Collateral, are hereby waived by Debtor.
(d) All recitals in any instrument of assignment or any other
instrument executed by Secured Party incident to sale, lease, transfer,
assignment or other disposition, lease or utilization of the Collateral or any
part thereof hereunder shall be full proof of the matters stated therein and no
other proof shall be requisite to establish full legal propriety of the sale or
other action taken by Secured Party or of any fact, condition or thing incident
thereto and all prerequisites of such sale or other action or of any fact,
condition or thing incident thereto shall be presumed conclusively to have been
performed or to have occurred.
9. General.
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(a) No Impairment, etc. The execution and delivery of
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this Security Agreement in no manner shall impair or affect any other security
(by endorsement or otherwise) for the payment or performance of the
Indebtedness and no security taken hereafter as security for payment or
performance of the Indebtedness shall impair in any manner or affect this
Security Agreement, all such present and future additional security to be
considered as cumulative security. Any of the Collateral may be released from
this Security Agreement without altering, varying or diminishing in any way the
force, effect, lien, security interest, or charge of this Security Agreement as
to the Collateral not expressly released, and this Security Agreement shall
continue as a first and prior lien, security interest and charge on all of the
Collateral not expressly released until all the Indebtedness secured hereby has
been paid or performed in full. Any future assignment of the interest of
Debtor in and to any of the Collateral shall not deprive Secured Party of the
right to sell or otherwise dispose of or utilize all or any part of the
Collateral as above provided or necessitate the sale or disposition thereof in
parcels or in severality.
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(b) Liability for Deficiency. This Security Agreement shall not be
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construed as relieving Debtor from full liability on the Indebtedness and any
and all future and other indebtedness secured hereby and for any deficiency
thereon.
(c) Powers of Secured Party. In protecting, exercising or assuring
-----------------------
its interests, rights and remedies under this Security Agreement, Secured Party
may, after the occurrence of an Event of Default, receive, open and dispose of
mail addressed to Debtor and execute, sign and endorse negotiable and other
instruments for the payment of money, documents of title and other evidences of
payment, shipment or storage for any form of Collateral or proceeds on behalf
of and in the name of Debtor.
(d) Subrogation. Secured Party is hereby subrogated to all of
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Debtor's interests, rights and remedies in respect to the Collateral and all
security now or hereafter existing with respect thereto and all guaranties and
endorsements thereof and with respect thereto.
(e) Insurance. Without limiting any of Debtor's obligations under
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any of the agreements entered into in connection with the Indebtedness, if any
part of Debtor's Tangibles or any security for any of the Intangibles now or
hereafter existing consists of or includes or affects tangible goods of the
type which are customarily insured by persons situated similarly to Debtor
against loss, casualty, fire damage, theft or other destruction or loss, and in
any event upon request by Secured Party, Debtor agrees (at Debtor's expense) to
take out and maintain, or to cause same to be taken out and maintained, such
insurance with respect to such goods as may reasonably be requested by Secured
Party, with Secured Party named as an assured under such insurance. Secured
Party may act and is hereby authorized to act, as attorneys for Debtor in
obtaining, adjusting, settling and cancelling such insurance and endorsing any
drafts by insurers of such goods, but Secured Party shall not be obligated by
this provision so to act; and if, at any time or times, Debtor shall fail to
take out or maintain insurance as required under this Security Agreement or
under this Article, Secured Party may (but shall not be obligated to), without
waiving such default by Debtor, take out or maintain such insurance, and all
premiums and other costs paid by Secured Party incident thereto shall be
repayable upon demand by Debtor to Secured Party, with interest thereon from
the date expended by Secured Party until repaid at the rate equal to the rate
of interest on loans made pursuant to the Term Loan Agreement, and shall be and
become a part of the Indebtedness secured hereby.
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(f) Notices. Any communications, notice or demand to be given
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hereunder shall be duly given if in writing (including telegraphic
communications) and delivered, mailed or telegraphed:
if to Debtor, at:
xXXX.xxx
0000 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention:
Facsimile No.:
if to Secured Party, at:
XXXX.XXX, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx and
Xxxxxxxx X. Xxxxxxxx
Facsimile No.: (000) 000-0000
or, as to any party, to such other address as shall be designated by such party
in a prior written notice to each other party similarly given.
(g) Deposits; Set-off. Any deposit, deposit account, certificate of
-----------------
indebtedness or deposit or other sums at any time credited by or due from the
holder of the Indebtedness to Debtor and any securities or other property of
Debtor in the possession of the holder of the Indebtedness may at all times be
held and treated as additional and cumulative collateral security for the
payment of the Indebtedness, and Debtor grants Secured Party a security
interest in all such deposits, deposit accounts, certificates, sums, securities
and other properties as additional and cumulative security for payment of the
Indebtedness. The holder of the Indebtedness may, at any time, to the full
extent permitted by law, after the Indebtedness shall become due, whether by
acceleration or otherwise, or at any time after the occurrence of an Event of
Default under the Term Loan Agreement and so long as such Event of Default
shall be continuing, apply or set-off such deposits, deposit accounts,
certificates, securities, sums or properties against the Indebtedness at any
time in the care of Debtor.
(h) No Duty to Preserve Collateral. Secured Party shall not be
------------------------------
obligated to take any steps necessary to preserve
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any rights in the Collateral or in any security therefor against any other
party, which obligation Debtor hereby assumes.
(i) No Waiver. No delay or omission on the part of Secured Party in
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exercising any right hereunder shall operate as a waiver of any such right or
any other right. A waiver on any one or more occasions shall not be construed
as a bar to or waiver of any right or remedy on any future occasion. The
remedies of Secured Party hereunder are cumulative, and the exercise of any one
or more of the remedies provided for herein shall not be construed as an
election or as a waiver of any of the other remedies of Secured Party provided
for herein or existing by law or otherwise.
(j) Assignment. All rights of Secured Party hereunder shall inure
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to the benefit of its successors and assigns; and all obligations of Debtor
shall bind its successors and assigns.
(k) Governing Law. This Security Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of California, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of any of the security interests hereunder, or remedies
hereunder, are governed by the laws of a jurisdiction other than the State of
California.
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IN WITNESS WHEREOF, the Debtor has duly executed and delivered this
Security Agreement as of the date first above written.
xXXX.xxx
By
------------------------------
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(Schedule I)
Locations of Tangibles
----------------------
xXxx.xxx Headquarters
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000
xXxx.xxx Oregon
0000 XX 000xx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
xXxx.xxx Santa Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
xXxx.xxx Ireland
Xxxx X00
Xxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxxxx Xxxxxx
Dublin 24
Ireland
xXxx.xxx UK
Building A Xxxxxxx Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxxxx
Xxxxx XX00 0XX
44
(Schedule II)
Security for Loan
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The Loan shall be secured by a first lien on and perfected first
security interest in any and all of the assets of Debtor, in each case now
owned or hereafter acquired, including without limitation, all equipment,
inventory, merchandise, raw materials, parts, supplies, contract rights,
general intangibles, goodwill, Trademarks, Patents, domain names, leases,
license agreements, franchise agreements, blueprints, drawings, purchase
orders, customer information, customer lists, route lists, infringements,
claims, Debtor Software (as hereinafter defined), computer discs, computer
tapes, literature, reports, catalogs, design rights, income tax refunds,
payments of insurance, rights to payment of any kind, accounts, royalties,
license rights, DID Numbers and all other forms of obligations owing to Debtor
arising out of the sale or lease of goods, licensing of technology or rendering
of services by Debtor, documents, cash, deposit accounts, securities,
securities entitlements, securities accounts, investment property, financial
assets, letters of credit, certificates of deposit, instruments, chattel paper,
bank accounts and other deposit accounts; Copyrights and like protections and
derivative work thereof, all trade secret rights, including all rights to
unpatented inventions, know-how, operating manuals, license rights and
agreements and confidential information, all mask work or similar rights
available for the protection of semiconductor chips, all claims for damages by
way of any past, present and future infringement of any of the foregoing and
any and all intellectual property rights in any of the foregoing, all other
tangible and intangible personal property and fixtures of Debtor, including,
without limitation, all proceeds, products, offspring, accessions, rents,
profits, income, benefits, substitution and replacement of and to any of the
property of Debtor described herein (including, without limitation, any
proceeds of insurance thereon and all causes of action, claims and warranties
now or hereafter held by Debtor in respect of any of the listed items) and, to
the extent related to any property so described or such proceeds, products and
accessions, all books, correspondence, credit files, records, invoices and
other papers, including, without limitation, all tapes, cards, computer runs
and other papers and documents (collectively, the "Collateral").
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The following terms, as used herein, shall have the meaning set forth
following such term below:
"Debtor Software" shall mean any and all computer software and/or programs
developed and owned by the Debtor or licensed by the Debtor from third parties
and used in the business and operations of the Debtor, including all
Maintenance Modifications and Upgrades thereto and Derivative Works thereof, as
well as Documentations relating to any of the foregoing, and shall further
include any and all Code (including Source Code and Object Code), as well as
any and all other intellectual property rights, constituting or relating to any
of the foregoing.
"Maintenance Modifications" means modifications, Upgrades or revisions
made by the Debtor to the Debtor Software that correct errors or support new
releases of operating systems.
"Upgrades" means revised versions of the Debtor Software that result in
(1) substantial performance, structural or functional improvements or
additions, including the substantial redesign or replacement of any part of the
Source Code or (2) a change in the version number (including any changes to the
number to the right of the decimal point) of the Debtor Software.
"Derivative Works" means a work that is based upon one or more preexisting
works, such as a revision, modification, translation, abridgement,
condensation, expansion, or any other form in which such preexisting works may
be recast, transformed, or adapted, and that, if prepared without authorization
of the owner of the copyright in such preexisting work, would constitute a
copyright infringement.
"Code" means computer programming code. Code shall include both Object
Code and Source Code. Code shall include any and all Maintenance Modifications
and Upgrades thereto.
"Source Code" means Code in human readable programming languages, plus all
related development documents.
"Object Code" means Code in machine-readable form.
"Documentation" means user manuals and other written materials that relate
to the Debtor Software. Documentation shall include Maintenance Modifications
and Upgrades thereto.
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(Schedule 3(b))
Items for Which A Financing Statement
-------------------------------------
Or Security Agreement Has Been Signed
-------------------------------------
None.
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