EXHIBIT 1.A
SECURITY AGREEMENT
1. IDENTIFICATION.
This Security Agreement (the "Agreement"), dated for identification
purposes only February ___, 2001, is entered into by and between The Tirex
Corporation, a Delaware corporation ("Debtor"), Xxxx X. Xxxxxxxx, Xx., Xxxxx
Xxxx, Xxxxx Xxxxxxx (Xxxx Xxxxxxxx, Xxxxx Xxxx and Xxxxx Xxxxxxx, are referred
to herein individually as a "Shareholder" and collectively "Shareholders") 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 being
collectively, the "Lenders" and each a "Lender".
2. RECITALS.
2.1 The Lenders have made loans to Debtor (the "Loans").
2.2 The Loans are evidenced by those certain Secured Convertible
Notes described on Schedule A hereto ("Notes") and executed by Debtor as the
"Borrower" thereof, for the benefit of each individual Lender as the "Holder"
thereof.
2.3 In order to induce Lenders to make the Loans, and as security
for Debtor's performance of its obligations under the Notes and as security for
the repayment of the Loans and any and all other sums due from Debtor to Lender
whether arising under the Notes issued pursuant to a Subscription Agreement
entered into between Debtor and each Lender relating to the Notes (the
"Subscription Agreement"), or pursuant to other written instruments and
agreements entered into by the Debtor and a Lender, whether before or after the
date hereof, and further specifically including all of the Debtor's obligations
arising under the Notes and the Subscription Agreement relating thereto
(collectively, the "Obligations"), Debtor and Shareholders, 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
certain property specified in this Agreement, 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 as of February ____,
2001, among the Lenders and Collateral Agent.
DEFINED TERMS. The following defined terms which 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.
3.1 As security for the Obligations, Shareholders hereby grant 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 the
Shareholders: the common stock of the Debtor as set forth on Schedule B hereto,
together with medallion signature guaranteed stock powers ("Security Shares").
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Such additional Collateral shall include, but not be limited to, all the
Shareholders right, title and interest in and to the Security Shares, together
with the proceeds of any sale, exchange, liquidation or other disposition,
whether voluntary or involuntary, and including but not limited to any
securities, instruments, and all benefits and entitlements evidenced by or
arising out of the Security Shares and all other securities, instruments and
other property (whether real or personal, tangible or intangible) issued or
accepted in substitution for, or in addition to, the foregoing, and all
dividends, interest, cash, instruments, distributions, income, securities and
any other property (whether real or personal, tangible or intangible) at any
time received, receivable or otherwise distributed in respect of, or in exchange
for, the foregoing, whether now owned or hereafter acquired, and any and all
improvements, additions, replacements, substitutions and any and all proceeds
arising out of or derived from the foregoing.
3.3 The Collateral Agent is hereby specifically authorized 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.
Shareholders shall execute and deliver to the Collateral Agent UCC-1
Financing Statements ("Financing Statements") assigning to the Collateral Agent
security interests in Shareholders' right, title and interest in and to the
Collateral. Debtor and Shareholders hereby authorize the Collateral Agent to
file such Financing Statements at the Debtor's expense, in such filing locations
as the Collateral Agent deems appropriate. Shareholders shall not be deemed
guarantors of the obligations of the Debtor, except to the extent of the
Collateral advanced by each of them, the Lenders having no recourse to them
except for the Collateral.
5. DISTRIBUTION ON LIQUIDATION.
5.1 If any sum is paid as a liquidating distribution on or with
respect to the Collateral, Shareholders shall accept same in trust for the
Lenders and shall deliver same to the Collateral Agent to be applied to the
Obligations then due, in accordance with the terms of the Notes.
5.2 Prior to any Event of Default (as defined herein), Shareholders
shall be entitled to exercise all voting power pertaining to any of the
Collateral, provided such exercise does not impair the Collateral.
6. FURTHER ACTION BY DEBTOR AND : COVENANTS AND WARRANTS.
6.1 Collateral Agent at all times shall have a perfected security
interest in the Collateral which shall be prior to any other unperfected
interest therein. Subject to the security interest described herein,
Shareholders have 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. Shareholders 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 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 might prejudice, imperil or otherwise affect the Collateral
or its security interest therein.
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6.2 Shareholders will not sell, transfer, assign or pledge those
items of Collateral and Debtor and Shareholders will not allow any such items to
be sold, transferred, assigned or pledged, without the prior written consent of
Collateral Agent. Although proceeds of Collateral are covered by this Security
Agreement, this shall not be construed to mean that Collateral Agent consents to
any sale of the Collateral.
6.3 Debtor and Shareholders will, at all reasonable times, allow
Collateral Agent or its representatives free and complete access to all of
Debtor 's and Shareholders' records which in any way relate to the Collateral,
for such inspection and examination as Collateral Agent deems necessary.
6.4 Debtor and Shareholders, at their sole cost and expense, will
protect and defend this Security Agreement, all of the rights of Collateral
Agent hereunder, and the Collateral against the claims and demands of all other
parties.
6.5 Debtor and Shareholders 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 might in any way affect or impair any of the rights of Collateral Agent
under this Security Agreement.
6.6 Shareholders, at their own expense, will obtain and maintain in
force insurance policies covering losses or damage to those items of Collateral
which constitute physical personal property, if any. The insurance policies to
be obtained by Shareholders shall be in form and amounts reasonably acceptable
to Collateral Agent. Shareholders shall make the Collateral Agent a loss payee
thereon. Collateral Agent is hereby irrevocably appointed Debtor's and
Shareholder's attorney-in-fact to endorse any check or draft that may be payable
to Shareholders, so that Collateral Agent may collect the proceeds payable for
any loss under such insurance. The proceeds of such insurance, 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 , and 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 and
Shareholders to Collateral Agent upon demand and shall bear interest at 18% per
annum from the dates of such expenditures until paid.
6.8 Upon the request of Collateral Agent, Debtor will furnish
within five (5) days thereafter to Collateral Agent, or to any proposed assignee
of this Security Agreement, a written statement in form satisfactory to
Collateral Agent, duly acknowledged, certifying the amount of the principal and
interest then owing under the Obligations, whether 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.
6.9 The Debtor and Shareholders will, at Debtors expense, 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 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 reasonable require.
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6.10 Shareholders, each as to himself, represents and warrants that
he is the true and lawful exclusive owner of the Collateral, free and clear of
any liens and encumbrances and acquired the Security Shares for purposes of
calculating the holding period for purposes of Rule 144 under the Securities Act
of 1933 ("Rule 144") on the dates set forth on Schedule B.
6.11 Shareholders hereby agree not to divest themselves of any right
under the Collateral absent prior written approval of the Collateral Agent.
6.12 Debtor and Shareholders will cooperate and provide such
certificate, resolutions, representations, legal opinions and all other matters
necessary to facilitate a transfer or sale of any part of the Collateral
pursuant to Rule 144. Debtor and Shareholders are unaware of any impediment to
the resale of the security by the Collateral Agent pursuant to Rule 144. Debtor
and Shareholders will take no action that would impede or limit the Collateral
Agent's ability to resell all the Security Shares pursuant to Rule 144. For so
long as any Security Shares are subject to this Security Agreement, the
Shareholders will not sell any security of the Debtor which sale would be
aggregate with sales by the Collateral Agent pursuant to Rule 144.
7. POWER OF ATTORNEY.
Shareholders hereby irrevocably constitute and appoint the Collateral
Agent as the true and lawful attorney of Debtor and Shareholders, with full
power of substitution, in the place and stead of Debtor and Shareholders and in
the name of Debtor and Shareholders 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 which the Collateral Agent may deem necessary or
advisable to accomplish the purposes of this Agreement which Debtor or
Shareholders fail to take or fail to execute within five (5) business days of
the Collateral Agent's reasonable request therefore. This power of attorney is
coupled with an interest, is irrevocable and shall not be affected by any
subsequent disability or incapacity of Debtor or Shareholders.
8. PERFORMANCE BY THE COLLATERAL AGENT.
If Debtor or Shareholders fail to perform any material covenant,
agreement, duty or obligation of Debtor or Shareholders under this Agreement,
the Collateral Agent may, 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 and Shareholders 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.
An event of default ("Event of Default") shall be deemed to have
occurred hereunder upon the occurrence of any event of default as defined in the
Notes or Subscription Agreement. Upon and after any Event of Default, after the
applicable cure period, if any, 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 or Shareholders of any of their obligations
pursuant to this Agreement including but not limited to the obligations set
forth in Section 6 of this Agreement, or a misrepresentation by Debtor or
Shareholders of a material fact stated herein, shall be deemed an Event of
Default hereunder and an event of default as defined in the Obligations.
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10. DISPOSITION OF COLLATERAL.
10.1 Upon and after any Event of Default which is then continuing,
(a) 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 or any other
component of the Collateral. 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
("Code") then in effect in the State of New York.
(b) If any notice to Shareholders of the sale or other
disposition of Collateral is required by then applicable law, five (5) days'
prior notice (or, if longer, the shortest period of time permitted by then
applicable law) to Shareholders of the time and place of any public sale of
Collateral or of the time after which any private sale or any other intended
disposition is to be made, shall constitute reasonable notification.
(c) 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.
(d) All cash 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 the interest in the
Obligations. Upon payment in full of all Obligations, Shareholders 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 Shareholders
shall be without representation or warranty of any nature whatsoever and wholly
without recourse. The Lenders may purchase the Collateral and pay for such
purchase by offsetting any sums owed to Lender by Debtor arising under the
Obligations or any other source.
(e) No exercise by the Collateral Agent of any right hereby
given it, no dealing by the Collateral Agent with Debtor, Shareholders or any
other person, and no change, impairment or suspension of any right or remedy of
the Collateral Agent shall in any way affect any of the obligations of Debtor or
Shareholders hereunder or any Collateral furnished by Shareholders or give
Debtor or Shareholders any recourse against the Collateral Agent.
10.2 The Security Shares shall be released to the Shareholders upon
the sooner of (i) complete satisfaction of the Obligations, or (ii) the timely
compliance by the Debtor of its registration obligations set forth in Section
10.1(iv) of the Subscription Agreement. Notwithstanding anything contained in
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this Security Agreement the Collateral Agent Agreement or in the Subscription
Agreement to the contrary, the Security Shares shall be released and returned
promptly upon the effectiveness of the SB-2 registration statement required to
be filed by the Company pursuant to Section 10.1(iv) of the Subscription
Agreement, provided said registration statement is declared effective within 150
days after the Closing Date as defined in Section 14(b) of the Subscription
Agreement, otherwise the Security Shares shall remain subject to this Agreement
and retained by the Collateral Agent until the complete satisfaction of the
Obligations.
10.3 The Shareholders collectively may substitute with the
Collateral Agent a sum of money equal to not less than all sums due, payable or
accruing on the Obligations through the Maturity Date of the Notes as substitute
Collateral and receive the Security Shares in lieu thereof. Said sum of money
will be held as Collateral pursuant to this Security Agreement and shall be
deposited in an interest bearing account for the benefit of the Shareholders
provided each of the Shareholders provide to the Collateral Agent a taxpayer
identification number and other documents reasonably requested by Collateral
Agent.
11. WAIVER OF AUTOMATIC STAY. The Debtor and Shareholders acknowledge and
agree that should a proceeding under any bankruptcy or insolvency law be
commenced by or against the Debtor or Shareholders, or if any of the Collateral
(as defined in the Security Agreement) 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 may be entitled
under the Note, Security Agreement, Subscription Agreement and any other
agreement to which the Debtor, Shareholders, 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 and/or applicable law. THE DEBTOR
AND SHAREHOLDERS EXPRESSLY WAIVE THE BENEFIT OF THE AUTOMATIC STAY IMPOSED BY 11
U.S.C. SECTION 362. FURTHERMORE, THE DEBTOR AND SHAREHOLDERS EXPRESSLY
ACKNOWLEDGE AND AGREE 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. The Debtor and
Shareholders hereby consent to any motion for relief from stay which may be
filed by the Collateral Agent in any bankruptcy or insolvency proceeding
initiated by or against the Debtor and Shareholders, further, agree not to file
any opposition to any motion for relief from stay filed by the Collateral Agent.
The Debtor and Shareholders represent, acknowledge and agree 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. The Debtor and Shareholders further represent,
acknowledge and agree 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 the Debtor and Shareholders have 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 the Debtor and
Shareholders and that the Debtor and Shareholders have had the opportunity to
discuss this waiver with counsel. The Debtor and Shareholders further agree that
any bankruptcy or insolvency proceeding initiated by the Debtor or Shareholders
and will only be brought in courts within the geographic boundaries of New York
State.
12. MISCELLANEOUS.
12.1 EXPENSES. Debtor and Shareholders shall severally pay to the
Collateral Agent, on demand, the amount of any and all reasonable expenses,
including, without limitation, attorneys' fees, legal expenses and brokers'
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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; or (c) failure by
Debtor or Shareholders to perform and observe any agreements of Debtor or
Shareholders contained herein which are performed by the Collateral Agent.
12.2 WAIVERS, AMENDMENT AND REMEDIES. No courses 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 or Shareholders 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.
12.3 NOTICES. Any notice or other communications under the
provisions of this Agreement shall be given in writing and delivered in person,
by reputable overnight courier or delivery service, by facsimile machine
(receipt conformed) with a copy sent by first class mail on the date of
transmissions, or by registered or certified mail, return receipt requested,
directed to its addresses set forth below (or to any new address of which either
party hereto shall have informed the other by the giving of notice in the manner
provided herein):
To Debtor: The Tirex Corporation
0000 xxx Xx. Xxxxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
With a copy to: Xxxxxxxx, Xxxxx & Xxxxxxxxxx, L.L.C.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
To Shareholders: To the addresses and telecopier numbers
Set forth on Schedule B hereto
To Lenders: To the addresses and telecopier numbers
Set forth on Schedule A hereto
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
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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; (b) be binding upon Debtor and Shareholders, and their successors
and assigns; and (c) inure to the benefit of the Collateral Agent, for the
benefit of the Lenders and their heirs, legal representatives, successors in
title and assigns.
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.
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 principles of conflicts or choice of law, 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 the Debtor and Shareholders with respect to this
Agreement may be brought in the courts of 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, each of the Debtor and Shareholders hereby irrevocably accepts
for itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The Debtor and Shareholders hereby
irrevocably waive any objection which they 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 which 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 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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed and delivered this
Security Agreement, as of the date first written above.
"DEBTOR"
THE TIREX CORPORATION
a Delaware corporation
By: _________________________________
Its: ________________________________
"SHAREHOLDERS"
/s/ XXXX X. XXXXXXXX, XX.
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XXXX X. XXXXXXXX, XX.
/s/ XXXXX XXXX
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XXXXX XXXX
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
"THE COLLATERAL AGENT"
XXXXXXX XXXXXXX
/s/ XXXXXXX XXXXXXX
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APPROVED:
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THIS SECURITY AGREEMENT MAY BE EXECUTED BY FACSIMILE SIGNATURE AND DELIVERED BY
CONFIRMED FACSIMILE TRANSMISSION.
