EXHIBIT 10.26
SECURITY AGREEMENT
1. Identification.
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This Security Agreement (the "Agreement"), dated as of August 5, 2005, is
entered into by and between Savoy Resources Corp., a Colorado corporation
("Debtor"), and Xxxxxxx Xxxxxxx, as collateral agent acting in the manner and to
the extent described in the Collateral Agent Agreement defined below (the
"Collateral Agent"), for the benefit of the parties identified on Schedule A
hereto (collectively, the "Lenders").
2. Recitals.
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2.1 The Lenders/ are making/ loans to Debtor (the "Loans"). It is
beneficial to Debtor that the Loan s/ are being made.
2.2 The Loans are/ evidenced by certain convertible promissory notes (each
a "Convertible Note") issued by Debtor on or about the date of/ this Agreement
pursuant to a subscription agreement/ (/the "Subscription Agreement") to which
Debtor and Lenders are parties. The Notes are further identified on Schedule A
hereto and were /or will be executed by Debtor as "Borrower" or "Debtor" for the
benefit of each Lender as the "Holder" or "Lender" thereof. Schedule A hereto
may be amended to include such other Lenders who become parties hereto and sign
this Agreement, the Collateral Agent Agreement and any other agreement
reasonably requested by the Collateral Agent, who will have purchased Notes
pursuant to the Subscription Agreement.
2.3 In consideration of the Loans made/ by Lenders to Debtor and for other
good and valuable consideration, and as security for the performance by Debtor
of its obligations under the Notes and as security for the repayment of the
Loans and all other sums due from Debtor to Lenders arising under the
Transaction Documents (as defined in the Subscription Agreement), and any other
agreement between or among them (collectively, the "Obligations"), Debtor, for
good and valuable consideration, receipt of which is acknowledged, has agreed to
grant to the Collateral Agent, for the benefit of the Lenders, a security
interest in the Collateral (as such term is hereinafter defined), on the terms
and conditions hereinafter set forth./
2.4 The Lenders have appointed Xxxxxxx Xxxxxxx as Collateral Agent pursuant
to that certain Collateral Agent Agreement dated at or about August 5, 2005
("Collateral Agent Agreement"), among the Lenders and Collateral Agent.
2.5 The following defined terms that/ are defined in the Uniform Commercial
Code in effect in the State of New York on the date hereof are used herein as so
defined: Accounts, Chattel Paper, Documents, Equipment, General Intangibles,
Instruments, Inventory and Proceeds.
3. Grant of General Security Interest in Collateral.
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3.1 As security for the Obligations of Debtor, Debtor hereby grants the
Collateral Agent, for the benefit of the Lenders, a security interest in the
Collateral.
3.2 "Collateral" shall mean all of the following property of Debtor:
(A) All now owned and hereafter acquired right, title and interest of
Debtor in, to and in respect of all Accounts, Goods, real or personal
property, all present and future books and records relating to the
foregoing and all products and Proceeds of the foregoing, and as set forth
below:
(i) Accounts: All now owned and hereafter acquired right, title and
interest of Debtor in, to and in respect of all: Accounts, interests in
goods represented by Accounts, returned, reclaimed or repossessed goods
with respect thereto and rights as an unpaid vendor; contract rights;
Chattel Paper; investment property; General Intangibles (including but not
limited to, tax and duty claims and refunds, registered and unregistered
patents, trademarks, service marks, certificates, copyrights, trade names,
applications for the foregoing, trade secrets, goodwill, processes,
drawings, blueprints, customer lists, licenses, whether as licensor or
licensee, chooses in action and other claims, and existing and future
leasehold interests in equipment, real estate and fixtures); Documents;
Instruments; letters of credit, bankers' acceptances or guaranties; cash
moneys;/ deposits; securities, bank accounts, deposit accounts, credits and
other property now or hereafter owned or held in any capacity by Debtor, as
well as its affiliates;/ agreements or property securing or relating to any
of the items referred to above;
(ii) Goods: All now owned and hereafter acquired right, title and
interest of Debtor in, to and in respect of goods, including, but not
limited to:
(a) All Inventory, wherever located, whether now owned or
hereafter acquired, of whatever kind, nature or description, including
all raw materials, work-in-process, finished goods, and materials to
be used or consumed in Debtor' business; finished goods, timber cut or
to be cut, oil, gas, hydrocarbons, and minerals extracted or to be
extracted, and all names or marks affixed to or to be affixed thereto
for purposes of selling same by the seller, manufacturer, lessor or
licensor thereof and all Inventory that/ may be returned to Debtor by
its customers or repossessed by Debtor and all of Debtor's right,
title and interest in and to the foregoing (including all of Debtor's
rights as a seller of goods);
(b) All Equipment and fixtures, wherever located, whether now
owned or hereafter acquired, including, without limitation, all
machinery, motor vehicles, furniture and fixtures, and any and all
additions, substitutions, replacements (including spare parts), and
accessions thereof and thereto (including, but not limited to Debtor's
rights to acquire any of the foregoing, whether by exercise of a
purchase option or otherwise);
(iii) Property: All now owned and hereafter acquired right, title and
interests of Debtor in, to and in respect of any real or other personal
property in or upon which Debtor has or may hereafter have a security
interest, lien or right of setoff;
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(iv) Books and Records: All present and future books and records
relating to any of the above including, without limitation, all computer
programs, printed output and computer readable data in the possession or
control of the Debtor, any computer service bureau or other third party;
and
(v) Products and Proceeds: All products and Proceeds of the foregoing
in whatever form and wherever located, including, without limitation, all
insurance proceeds and all claims against third parties for loss or
destruction of or damage to any of the foregoing.
(B) All now owned and hereafter acquired right, title and interest of
Debtor in, to and in respect of the following:
(i) the shares of stock, partnership interests, member interests or
other equity interests at any time and from time to time acquired by Debtor
of any and all entities now or hereafter existing, all or a portion of such
stock or other equity interests that/ are acquired by such entities at any
time (such entities, together with the existing issuers, being hereinafter
referred to collectively as the "Pledged Issuers" and individually as a
"Pledged Issuer"), the certificates representing such shares, partnership
interests, member interests or other interests, all options and other
rights, contractual or otherwise, in respect thereof and all dividends,
distributions, cash, instruments, investment property and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares, partnership interests,
member interests or other interests;
(ii) all additional shares of stock, partnership interests, member
interests or other equity interests from time to time acquired by Debtor,
of any Pledged Issuer, the certificates representing such additional
shares, all options and other rights, contractual or otherwise, in respect
thereof and all dividends, distributions, cash, instruments, investment
property and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
additional shares, interests or equity; and
(iii) all security entitlements of Debtor in, and all Proceeds of any
and all of the foregoing in each case, whether now owned or hereafter
acquired by Debtor and howsoever its interest therein may arise or appear
(whether by ownership, security interest, lien, claim or otherwise).
3.3 The Collateral Agent is hereby specifically authorized, after the
Maturity Date (defined in the Notes), accelerated or otherwise, if the Debtor
fails to pay the principal and remaining accrued but unpaid interest on the
Convertible Notes and said amount has not been converted to Common Stock of the
Debtor on or prior to the Maturity Date, or after an Event of Default (as
defined herein) and the expiration of any applicable cure period, to transfer
any Collateral into the name of the Collateral Agent and to take any and all
action deemed advisable to the Collateral Agent to remove any transfer
restrictions affecting the Collateral.
4. Perfection of Security Interest.
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4.1 Debtor shall prepare, execute and deliver to the Collateral Agent UCC-1
Financing Statements. The Collateral Agent is instructed to prepare and file, at
Debtor's cost and expense, financing statements in such jurisdictions deemed
advisable to the Collateral Agent, including but not limited to the State of
Colorado. The Financing Statements are deemed to have been filed for the benefit
of the Collateral Agent and Lenders identified on Schedule A hereto.
4.2
(A)/ All other certificates and instruments constituting Collateral from
time to time required to be pledged to Collateral Agent pursuant to the terms
hereof (the "Additional Collateral") shall be delivered upon written request to
Collateral Agent promptly by the Debtor. All such certificates and instruments
shall be held by or on behalf of Collateral Agent pursuant hereto and shall be
delivered in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment or undated stock powers
executed in blank, all in form and substance satisfactory to Collateral Agent.
If any Collateral consists of uncertificated securities, unless the immediately
following sentence is applicable thereto, Debtor shall cause Collateral Agent
(or its custodian, nominee or other designee) to become the registered holder
thereof, or cause each issuer of such securities to agree that it will comply
with instructions originated by Collateral Agent with respect to such securities
without further consent by Debtor. If any Collateral consists of security
entitlements, Debtor shall transfer such security entitlements to Collateral
Agent (or its custodian, nominee or other designee) or cause the applicable
securities intermediary to agree that it will comply with entitlement orders by
Collateral Agent without further consent by Debtor.
(B)/ Within five (5) days after the receipt by Debtor of any Additional
Collateral, a Pledge Amendment, duly executed by Debtor, in substantially the
form of Annex I hereto (a "Pledge Amendment"), shall be delivered to Collateral
Agent in respect of the Additional Collateral to be pledged pursuant to this
Agreement. Debtor hereby authorizes Collateral Agent to attach each Pledge
Amendment to this Agreement and agrees that all certificates or instruments
listed on any Pledge Amendment delivered to Collateral Agent shall for all
purposes hereunder constitute Collateral.
(C)/ If Debtor shall receive, by virtue of Debtor being or having been an
owner of any Collateral, any (i) stock certificate (including, without
limitation, any certificate representing a stock dividend or distribution in
connection with any increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares, stock split, spin-off or
split-off), promissory note or other instrument, (ii) option or right, whether
as an addition to, substitution for, or in exchange for, any Collateral, or
otherwise, (iii) dividends payable in cash (except such dividends permitted to
be retained by Debtor pursuant to Section 5.2 hereof) or in securities or other
property or (iv) dividends or other distributions in connection with a partial
or total liquidation or dissolution or in connection with a reduction of
capital, capital surplus or paid-in surplus, Debtor shall receive such stock
certificate, promissory note, instrument, option, right, payment or distribution
in trust for the benefit of Collateral Agent, shall segregate it from Debtor's
other property and shall deliver it forthwith to Collateral Agent, in the exact
form received, with any necessary endorsement and/or appropriate stock powers
duly executed in blank, to be held by Collateral Agent as Collateral and as
further collateral security for the Obligations.
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5. Distribution on Liquidation.
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5.1 If any sum is paid as a liquidating distribution on or with respect to
the Collateral, Debtor shall deliver same to the Collateral Agent to be applied
to the Obligations, then due and unpaid, in accordance with the terms of the
Convertible Notes.
5.2 So long as no Event of Default exists, Debtor shall be entitled (i) to
exercise all voting power pertaining to any of the Collateral, provided such
exercise is not contrary to the interests of the Lenders and does not impair the
Collateral and (ii) may receive and retain any and all dividends, interest
payments or other distributions paid in respect of the Collateral.
5.3. Upon the occurrence and during the continuation of an Event of
Default, all rights of Debtor, upon notice given by Collateral Agent, to
exercise the voting power and receive payments, which it would otherwise be
entitled to pursuant to Section 5.2, shall cease and all such rights shall
thereupon become vested in Collateral Agent, which shall thereupon have the sole
right to exercise such voting power and receive such payments.
5.4 All dividends, distributions, interest and other payments that/ are
received by Debtor contrary to the provisions of Section 5.3 shall be received
in trust for the benefit of Collateral Agent, shall be segregated from other
funds of Debtor, and shall be forthwith paid over to Collateral Agent as
Collateral in the exact form received with any necessary endorsement and/or
appropriate stock powers duly executed in blank, to be held by Collateral Agent
as Collateral and as further collateral security for the Obligations.
6. Further Action By Debtor; Covenants and Warranties.
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6.1 Collateral Agent at all times shall have a perfected security interest
in the Collateral. Debtor has and will continue to have full title to the
Collateral free from any liens, leases, encumbrances, judgments or other claims.
Collateral Agent'/s security interest in the Collateral constitutes and will
continue to constitute a first, prior and indefeasible security interest in
favor of Collateral Agent. Debtor will do all acts and things, and will execute
and file all instruments (including, but not limited to, security agreements,
financing statements, continuation statements, etc.) reasonably requested by
Collateral Agent to establish, maintain and continue the perfected security
interest of Collateral Agent in the Collateral, and will promptly, on demand,
pay all costs and expenses of filing and recording, including the costs of any
searches reasonably deemed necessary by Collateral Agent from time to time to
establish and determine the validity and the continuing priority of the security
interest of Collateral Agent, and also pay all other claims and charges that, in
the opinion of Collateral Agent, exercised in good faith, are reasonably likely
to materially prejudice, imperil or otherwise affect the Collateral or
Collateral Agent's or Lenders' security interests therein.
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6.2 Other than in the ordinary course of business, and except for
Collateral that/ is substituted by assets of identical or greater value or that/
has become obsolete or is of inconsequential/ value, Debtor will not sell,
transfer, assign or pledge those items of Collateral (or allow any such items to
be sold, transferred, assigned or pledged), without the prior written consent of
Collateral Agent, other than a transfer of the Collateral to a wholly-owned
subsidiary, on prior notice to Collateral Agent, and provided the Collateral
remains subject to the security interest herein described. Although Proceeds of
Collateral are covered by this Agreement, this shall not be construed to mean
that Collateral Agent consents to any sale of the Collateral, except as provided
herein. Sales of Collateral in the ordinary course of business shall be free of
the security interest of Lenders and Collateral Agent and Lenders and Collateral
Agent shall promptly execute such documents (including without limitation
releases and termination statements) as may be required by Debtor to evidence or
effectuate the same.
6.3 Debtor will, at all reasonable times and upon reasonable notice, allow
Collateral Agent or its representatives free and complete access to the
Collateral and all of Debtor's records that/ in any way relate to the
Collateral, for such inspection and examination as Collateral Agent reasonably
deems necessary.
6.4 Debtor, at its sole cost and expense, will protect and defend this
Security Agreement, all of the rights of Collateral Agent and Lenders hereunder,
and the Collateral against the claims and demands of all other persons.
6.5 Debtor will promptly notify Collateral Agent of any levy, distraint or
other seizure by legal process or otherwise of any part of the Collateral, and
of any threatened or filed claims or proceedings that are reasonably likely to
affect or impair any of the rights of Collateral Agent under this Security
Agreement in any material respect.
6.6 Debtor, at its own expense, will obtain and maintain in force insurance
policies covering losses or damage to those items of Collateral that/ constitute
physical personal property. The insurance policies to be obtained by Debtor
shall be in form and amounts reasonably acceptable to Collateral Agent. For so
long as the Obligations are unpaid and unconverted, Debtor shall make the
Collateral Agent a first/ loss payee thereon to the extent of its interest in
the Collateral. Collateral Agent is hereby irrevocably (until the Obligations
are paid in full or converted to Common Stock of the Debtor) appointed Debtor's
attorney-in-fact to endorse any check or draft that may be payable to Debtor so
that Collateral Agent may collect the proceeds payable for any loss under such
insurance. The proceeds of such insurance (subject to the rights of senior
secured parties), less any costs and expenses incurred or paid by Collateral
Agent in the collection thereof, shall be applied either toward the cost of the
repair or replacement of the items damaged or destroyed, or on account of any
sums secured hereby, whether or not then due or payable.
6.7 Collateral Agent may, at its option, and without any obligation to do
so, pay, perform and discharge any and all amounts, costs, expenses and
liabilities herein agreed to be paid or performed by Debtor. Upon Debtor's
failure to do so, all amounts expended by Collateral Agent in so doing shall
become part of the Obligations secured hereby, and shall be immediately due and
payable by Debtor to Collateral Agent upon demand and shall bear interest at the
lesser of 15% per annum or the highest legal amount from the dates of such
expenditures until paid.
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6.8 Upon the request of Collateral Agent, Debtor will furnish to Collateral
Agent within five (5) business days thereafter, or to any proposed assignee of
this Security Agreement, a written statement in form reasonably satisfactory to
Collateral Agent, duly acknowledged, certifying the amount of the principal and
interest and any other sum then owing under the Obligations, whether to its
knowledge any claims, offsets or defenses exist against the Obligations or
against this Security Agreement, or any of the terms and provisions of any other
agreement of Debtor securing the Obligations. In connection with any assignment
by Collateral Agent of this Security Agreement, Debtor hereby agrees, to the
extent of any unpaid Obligations, to cause the insurance policies required
hereby to be carried by Debtor, if any, to be endorsed in form satisfactory to
Collateral Agent or to such assignee, with loss payable clauses in favor of such
assignee, and to cause such endorsements to be delivered to Collateral Agent
within ten (10) calendar days after request therefor by Collateral Agent.
6.9 Debtor will, at its own expense, for so long as the Obligations are
unpaid and unconverted and to the extent of Collateral Agents' interest in the
Collateral, make, execute, endorse, acknowledge, file and/or deliver to the
Collateral Agent from time to time such vouchers, invoices, schedules,
confirmatory assignments, conveyances, financing statements, transfer
endorsements, powers of attorney, certificates, reports and other reasonable
assurances or instruments and take further steps relating to the Collateral and
other property or rights covered by the security interest hereby granted, as the
Collateral Agent may reasonably require to perfect its security interest
hereunder.
6.10 Debtor represents and warrants that it is the true and lawful
exclusive owner of the Collateral, free and clear of any liens and encumbrances.
6.11 Debtor hereby agrees not to divest itself of any right under the
Collateral, except as permitted herein, absent prior written approval of the
Collateral Agent, except to a subsidiary organized and located in the United
States on prior notice to Collateral Agent, provided the Collateral remains
subject to the security interest herein described.
6.12 For so long as the Obligations are unpaid and unconverted, Debtor
shall cause each Subsidiary of Debtor in existence on the date hereof and each
Subsidiary not in existence on the date hereof to execute and deliver upon
written request to Collateral Agent promptly and in any event within 10 days
after the formation, acquisition or change in status thereof (A) a guaranty
guaranteeing the Obligations and, (B) if requested by Collateral Agent, a
security and pledge agreement substantially in the form of this Agreement/ (x)
certificates evidencing all of the capital stock of each Subsidiary and any
entity owned by such Subsidiary, (y) undated stock powers executed in blank with
signatures guaranteed, and (z) such opinion of counsel and such approving
certificate of such Subsidiary as Collateral Agent may reasonably request in
respect of complying with any legend on any such certificate or any other matter
relating to such shares and (E) such other agreements, instruments, approvals,
legal opinions or other documents reasonably requested by Collateral Agent in
order to create, perfect, establish the first priority of or otherwise protect
any lien purported to be covered by any such pledge and security agreement or
otherwise to effect the intent that all property and assets of such Subsidiary
shall become Collateral for the Obligations. For purposes of this Agreement,
"Subsidiary" means, with respect to any entity at any date/ (any corporation,
limited or general partnership, limited liability company, trust, estate,
association, joint venture or other business entity) of which more than 50% of
(A) the outstanding capital stock having (in the absence of contingencies)
ordinary voting power to elect a majority of the board of directors or other
managing body of such entity, (B) in the case of a partnership or limited
liability company, the interest in the capital or profits of such partnership or
limited liability company or, (C) in the case of a trust, estate, association,
joint venture or other entity, the beneficial interest in such trust, estate,
association or other entity business is, at the time of determination, owned or
controlled directly or indirectly through one or more intermediaries, by such
entity. Annex I annexed hereto contains a list of all Subsidiaries of the Debtor
as of the date of this Agreement.
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7. Power of Attorney.
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After the occurrence and during the uncured continuation of an Event of
Default as defined in Section 9 below, Debtor hereby irrevocably constitutes and
appoints the Collateral Agent as the true and lawful attorney of Debtor, with
full power of substitution, in the place and stead of Debtor and in the name of
Debtor or otherwise, at any time or times, in the discretion of the Collateral
Agent, to take any action and to execute any instrument or document that/ the
Collateral Agent may deem necessary or advisable to accomplish the purposes of
this Agreement. This power of attorney is coupled with an interest and is
irrevocable until the Obligations are satisfied or converted into Common Stock
of the Debtor.
8. Performance By The Collateral Agent.
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If Debtor fails to perform any material covenant, agreement, duty or
obligation of Debtor under this Agreement, the Collateral Agent may, after any
applicable cure period, at any time or times in its discretion, take action to
effect performance of such obligation. All reasonable expenses of the Collateral
Agent incurred in connection with the foregoing authorization shall be payable
by Debtor as provided in Paragraph 12.1 hereof. No discretionary right, remedy
or power granted to the Collateral Agent under any part of this Agreement shall
be deemed to impose any obligation whatsoever on the Collateral Agent with
respect thereto, such rights, remedies and powers being solely for the
protection of the Collateral Agent.
9. Event of Default.
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An event of default ("Event of Default") shall be deemed to have occurred
hereunder upon the occurrence of any event of default as defined and described
in this Agreement, in the Convertible Notes, Subscription Agreement, and any
other agreement to which Debtor and a Lender are parties. Upon and after any
Event of Default, after the applicable cure period, /any or all of the
Obligations shall become immediately due and payable, at the option of the
Collateral Agent, for the benefit of the Lenders, and the Collateral Agent may
dispose of Collateral as provided below. A default by Debtor of any of its
material obligations pursuant to this Agreement and any of the Transaction
Documents (as defined in the Subscription Agreement) shall be an Event of
Default hereunder and an "Event of Default" as defined in the Convertible Notes/
and Subscription Agreement.
10. Disposition of Collateral.
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Upon and after any Event of Default that/ is then continuing,
10.1 The Collateral Agent may exercise its rights with respect to each and
every component of the Collateral, without regard to the existence of any other
security or source of payment for the Obligations. In addition to other rights
and remedies provided for herein or otherwise available to it, the Collateral
Agent shall have all of the rights and remedies of a lender on default under the
Uniform Commercial Code then in effect in the State of New York.
10.2 If any notice to Debtor of the sale or other disposition of Collateral
is required by then applicable law, ten/ business (10/) days' prior written
notice (that/ Debtor agrees is reasonable notice within the meaning of Section
9.612(a) of the Uniform Commercial Code) shall be given to Debtor of the time
and place of any sale of Collateral that/ Debtor hereby agrees may be by private
sale. The rights granted in this Section are in addition to any and all rights
available to Collateral Agent under the Uniform Commercial Code.
10.3 The Collateral Agent is authorized, at any such sale, if the
Collateral Agent deems it advisable to do so, in order to comply with any
applicable securities laws, to restrict the prospective bidders or purchasers to
persons who will represent and agree, among other things, that they are
purchasing the Collateral for their own account for investment, and not with a
view to the distribution or resale thereof, or otherwise to restrict such sale
in such other manner as the Collateral Agent deems advisable to ensure such
compliance. Sales made subject to such restrictions shall be deemed to have been
made in a commercially reasonable manner.
10.4 All proceeds received by the Collateral Agent, for the benefit of the
Lenders in respect of any sale, collection or other enforcement or disposition
of Collateral, shall be applied (after deduction of any amounts payable to the
Collateral Agent pursuant to Paragraph 12.1 hereof) against the Obligations pro
rata among the Lenders in proportion to their interests in the Obligations. Upon
payment in full of all Obligations, Debtor shall be entitled to the return of
all Collateral, including cash, which has not been used or applied toward the
payment of Obligations or used or applied to any and all costs or expenses of
the Collateral Agent incurred in connection with the liquidation of the
Collateral (unless another person is legally entitled thereto). Any assignment
of Collateral by the Collateral Agent to Debtor shall be without representation
or warranty of any nature whatsoever and wholly without recourse. To the extent
allowed by law, each Lender may purchase the Collateral and pay for such
purchase by offsetting up to such Lender's pro rata portion of the purchase
price with sums owed to such Lender by Debtor arising under the Obligations or
any other source.
11. Waiver of Automatic Stay. Debtor acknowledges and agrees that should a
proceeding under any bankruptcy or insolvency law be commenced by or against
Debtor, or if any of the Collateral should become the subject of any bankruptcy
or insolvency proceeding, then the Collateral Agent should be entitled to, among
other relief to which the Collateral Agent or Lenders may be entitled under the
Convertible Notes, Subscription Agreement and any other agreement to which the
Debtor, Lenders or Collateral Agent are parties/ (collectively "Loan Documents")
and/or applicable law, an order from the court granting immediate relief from
the automatic stay pursuant to 11 U.S.C. Section 362 to permit the Collateral
Agent to exercise all of its rights and remedies pursuant to the Loan Documents
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and/or applicable law. Debtor EXPRESSLY WAIVES THE BENEFIT OF THE AUTOMATIC STAY
IMPOSED BY 11 U.S.C. SECTION 362. FURTHERMORE, DEBTOR/ EXPRESSLY ACKNOWLEDGES
AND AGREES THAT NEITHER 11 U.S.C. SECTION 362 NOR ANY OTHER SECTION OF THE
BANKRUPTCY CODE OR OTHER STATUTE OR RULE (INCLUDING, WITHOUT LIMITATION, 11
U.S.C. SECTION 105) SHALL STAY, INTERDICT, CONDITION, REDUCE OR INHIBIT IN ANY
WAY THE ABILITY OF THE COLLATERAL AGENT TO ENFORCE ANY OF ITS RIGHTS AND
REMEDIES UNDER THE LOAN DOCUMENTS AND/OR APPLICABLE LAW. Debtor hereby consents
to any motion for relief from stay that/ may be filed by the Collateral Agent in
any bankruptcy or insolvency proceeding initiated by or against Debtor, and
further agrees not to file any opposition to any motion for relief from stay
filed by the Collateral Agent. Debtor represents, acknowledges and agrees that
this provision is a specific and material aspect of this Agreement, and that the
Collateral Agent would not agree to the terms of this Agreement if this waiver
were not a part of this Agreement. Debtor further represents, acknowledges and
agrees that this waiver is knowingly, intelligently and voluntarily made, that
neither the Collateral Agent nor any person acting on behalf of the Collateral
Agent has made any representations to induce this waiver, that Debtor has been
represented (or has had the opportunity to be represented) in the signing of
this Agreement and in the making of this waiver by independent legal counsel
selected by Debtor and that Debtor has had the opportunity to discuss this
waiver with counsel. Debtor further agrees that any bankruptcy or insolvency
proceeding initiated by Debtor will only be brought in the Federal Court within
the Southern District of New York.
12. Miscellaneous.
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12.1 Expenses. Debtor shall pay to the Collateral Agent, on demand, the
amount of any and all reasonable expenses, including, without limitation,
attorneys'/ fees, legal expenses and brokers'/ fees, which the Collateral Agent
may incur in connection with (a) sale, collection or other enforcement or
disposition of Collateral; (b) exercise or enforcement of any the rights,
remedies or powers of the Collateral Agent hereunder or with respect to any or
all of the Obligations upon breach or threatened breach; or (c) failure by
Debtor to perform and observe any agreements of Debtor contained herein that/
are performed by the Collateral Agent.
12.2 Waivers, Amendment and Remedies. No course of dealing by the
Collateral Agent and no failure by the Collateral Agent to exercise, or delay by
the Collateral Agent in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Collateral Agent. No amendment, modification or
waiver of any provision of this Agreement and no consent to any departure by
Debtor therefrom, shall, in any event, be effective unless contained in a
writing signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Collateral Agent, not only
hereunder, but also under any instruments and agreements evidencing or securing
the Obligations and under applicable law, are cumulative, and may be exercised
by the Collateral Agent from time to time in such order as the Collateral Agent
may elect.
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12.3 Notices. All notices or other communications given or made hereunder
shall be in writing and shall be personally delivered or deemed delivered the
first business day after being faxed (provided that a copy is delivered by first
class mail) to the party to receive the same at its address set forth below or
to such other address as any/ party shall hereafter give to the other by notice
duly made under this Section:
To Debtor: Savoy Resources Corp.
18826 Pagentry Place/
Xxxxxxxx, Xxxxxxxx 000000/
Attn: Xxxxxx Xxxxxxx, President and CEO/
Fax: 000-00-00-000-0000/
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With an additional copy by
telecopier only to: Xxxxxxxx Xxxx, Esq./
Xxxx & Associates/
00000 Xxxxxxxx Xxxxx/
Xxxxxxxx, Xxxxxxxx 00000/
Fax: (000) 000-0000
To Lenders: To the addresses and telecopier numbers
set forth on Schedule A
To the Collateral Agent: Xxxxxxx X. Xxxxxxx
Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Any party may change its address by written notice in accordance with this
paragraph.
12.4 Term; Binding Effect. This Agreement shall (a) remain in full force
and effect until payment and satisfaction in full of all of the Obligations or
conversion of the Obligations into Common Stock of the Debtor; (b) be binding
upon Debtor, and its successors and permitted assigns; and (c) inure to the
benefit of the Collateral Agent, for the benefit of the Lenders and their
respective successors and assigns. All the rights and benefits granted by Debtor
to the Collateral Agent and Lenders in the Loan Documents and other agreements
and documents delivered in connection therewith are deemed granted to both the
Collateral Agent and Lenders.
12.5 Captions. The captions of Paragraphs, Articles and Sections in this
Agreement have been included for convenience of reference only, and shall not
define or limit the provisions hereof and have no legal or other significance
whatsoever.
11
12.6 Governing Law; Venue; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to conflicts of laws principles that would result in the application of
the substantive laws of another jurisdiction, except to the extent that the
perfection of the security interest granted hereby in respect of any item of
Collateral may be governed by the law of another jurisdiction. Any legal action
or proceeding against Debtor with respect to this Agreement may be brought in
the courts in the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, Debtor
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. Debtor hereby
irrevocably waives any objection that/ it/ may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out of or
in connection with this Agreement brought in the aforesaid courts and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought in
an inconvenient forum. If any provision of this Agreement, or the application
thereof to any person or circumstance, is held invalid, such invalidity shall
not affect any other provisions that can be given effect without the invalid
provision or application, and to this end the provisions hereof shall be
severable and the remaining, valid provisions shall remain of full force and
effect.
12.7 Entire Agreement. This Agreement contains the entire agreement of the
parties and supersedes all other agreements and understandings, oral or written,
with respect to the matters contained herein.
12.8 Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
13. Intercreditor Terms. As between the Lenders, any distribution under
paragraph 5 shall be made proportionately based upon the remaining principal
amount (plus accrued and unpaid interest) to each as to the total amount then
owed to the Lenders as a whole. The rights of each Lender hereunder are pari
passu to the rights of the other Lenders hereunder. Any recovery hereunder shall
be shared ratably among the Lenders according to the then remaining principal
amount owed to each (plus accrued and unpaid interest) as to the total amount
then owed to the Lenders as a whole.
[THIS SPACE INTENTIONALLY LEFT BLANK]
12
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Security Agreement, as of the date first written above.
"DEBTOR" "THE COLLATERAL AGENT"
SAVOY RESOURCES CORP. XXXXXXX X. XXXXXXX
a Colorado corporation
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
------------------ ----------------------
Xxxxxx Xxxxxxx
Its: President and CEO
APPROVED BY "LENDERS":
/s/ Xxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxxxxx
------------------- --------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT WHALEHAVEN CAPITAL FUND LIMITED
/s/ Xxxxxxxx Lijahm /s/ X. Xxxxxx
------------------- -------------------
CMS CAPITAL OSHER CAPITAL INC.
This Security Agreement may be signed by facsimile signature and
delivered by confirmed facsimile transmission.
13
SCHEDULE A TO SECURITY AGREEMENT
---------------------------------------------------------------
LENDER NOTE PRINCIPAL
ALPHA CAPITAL AKTIENGESELLSCHAFT $425,000.00
Xxxxxxxxx 0
0000 Xxxxxxxxxxx
Vaduz, Lichtenstein
Fax: 000-00-00000000
WHALEHAVEN CAPITAL FUND LIMITED $200,000.00
0xx Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Fax: (000) 000-0000
CMS CAPITAL $100,000.00
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
OSHER CAPITAL INC. $50,000.00
0 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Fax:
TOTAL $775,000.00
---------------------------------------------------------------
14
ANNEX I
TO
SECURITY AGREEMENT
PLEDGE AMENDMENT
This Pledge Amendment, dated _________ __ 200_, is delivered pursuant to
Section 4.3 of the Security Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Security Agreement,
dated August 5, 2005, as it may heretofore have been or hereafter may be
amended, restated, supplemented or otherwise modified from time to time and that
the shares listed on this Pledge Amendment shall be hereby pledged and assigned
to Collateral Agent and become part of the Collateral referred to in such
Security Agreement and shall secure all of the Obligations referred to in such
Security Agreement.
-------------------- ---------------------- -------------------- ---------------
Number Certificate
Name of Issuer of Shares Class Number(s)
-------------- --------- ----- ---------
-------------------- ---------------------- -------------------- ---------------
-------------------- ---------------------- -------------------- ---------------
-------------------- ---------------------- -------------------- ---------------
-------------------- ---------------------- -------------------- ---------------
-------------------- ---------------------- -------------------- ---------------
SAVOY RESOURCES CORP.
By: ______________________________________
Xxxxxx Xxxxxxx, President and CEO
15
