EXHIBIT 10.6
RPM TECHNOLOGIES, INC.
MASTER SECURITY AGREEMENT
To: Laurus Master Fund, Ltd.
c/o M&C Corporate Services Limited
X.X. Xxx 000 XX
Xxxxxx House
South Church Street
Xxxxxx Town
Grand Cayman, Cayman Islands
Date: June 19, 2006
To Whom It May Concern:
1. To secure the payment of all Obligations (as hereafter defined), RPM
Technologies, Inc., a Delaware corporation (the "Company"), Laurus Master Fund,
Ltd., ("Laurus")) and each other entity that is required to enter into this
Master Security Agreement (each an "Assignor" and, collectively, the
"Assignors") hereby assigns and grants to Laurus a continuing security interest
in all of the following property now owned or at any time hereafter acquired by
such Assignor, or in which such Assignor now has or at any time in the future
may acquire any right, title or interest (the "Collateral"): all cash, cash
equivalents, accounts, accounts receivable, deposit accounts, inventory,
equipment, goods, fixtures, documents, instruments (including, without
limitation, promissory notes), contract rights, commercial tort claims set
forth on Exhibit B to this Master Security Agreement, general intangibles
(including, without limitation, payment intangibles and an absolute right to
license on terms no less favorable than those current in effect among such
Assignor's affiliates), chattel paper, supporting obligations, investment
property (including, without limitation, all partnership interests, limited
liability company membership interests and all other equity interests owned by
any Assignor), letter-of-credit rights, trademarks, trademark applications,
tradestyles, patents, patent applications, copyrights, copyright applications
and other intellectual property in which such Assignor now has or hereafter may
acquire any right, title or interest, all proceeds and products thereof
(including, without limitation, proceeds of insurance) and all additions,
accessions and substitutions thereto or therefor. In the event any Assignor
wishes to finance the acquisition in the ordinary course of business of any
hereafter acquired equipment and has obtained a written commitment from an
unrelated third party financing source to finance such equipment, Laurus shall
release its security interest on such hereafter acquired equipment so financed
by such third party financing source. Except as otherwise defined herein, all
capitalized terms used herein shall have the meanings provided such terms in
the Securities Purchase Agreement referred to below. All items of Collateral
which are defined in the UCC shall have the meanings set forth in the UCC. For
purposes hereof, the term "UCC" means the Uniform Commercial Code as the same
may, from time to time, be in effect in the State of New York; provided, that
in the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Laurus'
security interest in any Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the term "UCC"
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions of this Agreement relating to such attachment,
perfection, priority or remedies and for purposes of definitions related to
such provisions; provided further, that to the extent that the UCC is used to
define any term herein and such term is defined differently in different
Articles or Divisions of the UCC, the definition of such term contained in
Article or Division 9 shall govern. Notwithstanding anything to the contrary
contained herein, this Master Security Agreement shall automatically terminate
upon the irrevocable payment in full of all obligations under the Note.
2. The term "Obligations" as used herein shall mean and include all debts,
liabilities and obligations owing by each Assignor to Laurus arising under, out
of, or in connection with: (i) that certain Securities Purchase Agreement dated
as of the date hereof by and between the Company and Laurus (the "Securities
Purchase Agreement") and (ii) the Related Agreements referred to in the
Securities Purchase Agreement (the Securities Purchase Agreement and each
Related Agreement, as each may be amended, modified, restated or supplemented
from time to time, collectively, the "Documents"), and in connection with any
documents, instruments or agreements relating to or executed in connection with
the Documents or any documents, instruments or agreements referred to therein
or otherwise, and in connection with any other indebtedness, obligations or
liabilities of each such Assignor to Laurus, whether now existing or hereafter
arising, direct or indirect, liquidated or unliquidated, absolute or
contingent, due or not due and whether under, pursuant to or evidenced by a
note, agreement, guaranty, instrument or otherwise, including, without
limitation, obligations and liabilities of each Assignor for post-petition
interest, fees, costs and charges that accrue after the commencement of any
case by or against such Assignor under any bankruptcy, insolvency,
reorganization or like proceeding (collectively, the "Debtor Relief Laws") in
each case, irrespective of the genuineness, validity, regularity or
enforceability of such Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence or extent of such
collateral, and irrespective of the allowability, allowance or disallowance of
any or all of the Obligations in any case commenced by or against any Assignor
under any Debtor Relief Law.
3. Each Assignor hereby jointly and severally represents, warrants and
covenants to Laurus that:
(a) it is a corporation, partnership or limited liability company, as the case
may be, validly existing, in good standing and formed under the respective laws
of its jurisdiction of formation set forth on Schedule A, and each Assignor
will provide Laurus thirty (30) days' prior written notice of any change in any
of its respective jurisdiction of formation;
(b) its legal name is as set forth in its Certificate of Incorporation or other
organizational document (as applicable) as amended through the date hereof and
as set forth on Schedule A, and it will provide Laurus thirty (30) days' prior
written notice of any change in its legal name;
(c) its organizational identification number (if applicable) is as set forth on
Schedule A hereto, and it will provide Laurus thirty (30) days' prior written
notice of any change in its organizational identification number;
(d) it is the lawful owner of its Collateral and it has the sole right to grant
a security interest therein and will defend the Collateral against all claims
and demands of all persons and entities;
(e) it will keep its Collateral free and clear of all attachments, levies,
taxes, liens, security interests and encumbrances of every kind and nature
("Encumbrances"), except (i) Encumbrances securing the Obligations and (ii)
Encumbrances securing indebtedness of each such Assignor not to exceed $50,000
in the aggregate for all such Assignors so long as all such Encumbrances are
removed or otherwise released to Laurus' satisfaction within ten (10) days of
the creation thereof;
(f) it will, at its and the other Assignors' joint and several cost and expense
keep the Collateral in good state of repair (ordinary wear and tear excepted)
and will not waste or destroy the same or any part thereof other than ordinary
course discarding of items no longer used or useful in its or such other
Assignors' business;
(g) it will not, without Laurus' prior written consent, sell, exchange, lease
or otherwise dispose of any Collateral, whether by sale, lease or otherwise,
except for the sale of inventory in the ordinary course of business and for the
disposition or transfer in the ordinary course of business during any fiscal
year of obsolete and worn-out equipment or equipment no longer necessary for
its ongoing needs, having an aggregate fair market value of not more than
$25,000 and only to the extent that:
(i) the proceeds of each such disposition are used to acquire replacement
Collateral which is subject to Laurus' first priority perfected security
interest, or are used to repay the Obligations or to pay general corporate
expenses; or
(ii) following the occurrence of an Event of Default which continues to exist
the proceeds of which are remitted to Laurus to be held as cash collateral for
the Obligations;
(h) it will insure or cause the Collateral to be insured in Laurus' name (as an
additional insured and loss payee) against loss or damage by fire, theft,
burglary, pilferage, loss in transit and such other hazards as Laurus shall
specify in amounts and under policies by insurers acceptable to Laurus and all
premiums thereon shall be paid by such Assignor and the policies delivered to
Laurus. If any such Assignor fails to do so, Laurus may procure such insurance
and the cost thereof shall be promptly reimbursed by the Assignors, jointly and
severally, and shall constitute Obligations;
(i) it will at all reasonable times allow Laurus or Laurus' representatives
free access to and the right of inspection of the Collateral;
(j) such Assignor (jointly and severally with each other Assignor) hereby
indemnifies and saves Laurus harmless from all loss, costs, damage, liability
and/or expense, including reasonable attorneys' fees, that Laurus may sustain
or incur to enforce payment, performance or fulfillment of any of the
Obligations and/or in the enforcement of this Master Security Agreement or in
the prosecution or defense of any action or proceeding either against Laurus or
any Assignor concerning any matter growing out of or in connection with this
Master Security Agreement, and/or any of the Obligations and/or any of the
Collateral except to the extent caused by Laurus' own gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and nonappealable decision); and
(k) all commercial tort claims (as defined in the Uniform Commercial Code as in
effect in the State of New York) held by any Assignor are set forth on Schedule
B to this Master Security Agreement; each Assignor hereby agrees that it shall
promptly, and in any event within five (5) Business Days after the same is
acquired by it, notify Laurus of any commercial tort claim acquired by it and
unless otherwise consented to in writing by Laurus, it shall enter into a
supplement to this Master Security Agreement granting to Laurus a security
interest in such commercial tort claim, securing the Obligations[.][; and]
4. The occurrence of an Event of Default (as defined in the Note) shall
constitute an "Event of Default" under this Master Security Agreement.
5. Upon the occurrence of any Event of Default and at any time thereafter,
Laurus may declare all Obligations immediately due and payable and Laurus shall
have the remedies of a secured party provided in the UCC as in effect in the
State of New York, this Agreement and other applicable law. Upon the
occurrence of any Event of Default and at any time thereafter, Laurus will have
the right to take possession of the Collateral and to maintain such possession
on any Assignor's premises or to remove the Collateral or any part thereof to
such other premises as Laurus may desire. Upon Laurus' request, each Assignor
shall assemble or cause the Collateral to be assembled and make it available to
Laurus at a place designated by Laurus. If any notification of intended
disposition of any Collateral is required by law, such notification, if mailed,
shall be deemed properly and reasonably given if mailed at least ten (10) days
before such disposition, postage prepaid, addressed to the applicable Assignor
either at such Assignor's address shown herein or at any address appearing on
Laurus' records for such Assignor which Laurus in good faith believes to be
accurate. Any proceeds of any disposition of any of the Collateral shall be
applied by Laurus to the payment of all expenses in connection with the sale of
the Collateral, including reasonable attorneys' fees and other legal expenses
and disbursements and the reasonable expenses of retaking, holding, preparing
for sale, selling, and the like, and any balance of such proceeds may be
applied by Laurus toward the payment of the Obligations in such order of
application as Laurus may elect, and each Assignor shall be liable for any
deficiency. For the avoidance of doubt, following the occurrence and during
the continuance of an Event of Default, Laurus shall have the immediate right
to withdraw any and all monies contained in any deposit account in the name of
any Assignor and controlled by Laurus and apply same to the repayment of the
Obligations (in such order of application as Laurus may elect). The parties
hereto each hereby agree that the exercise by any party hereto of any right
granted to it or the exercise by any party hereto of any remedy available to it
(including, without limitation, the issuance of a notice of redemption, a
borrowing request and/or a notice of default), in each case, hereunder, under
the Securities Purchase Agreement or under any other Related Agreement which
has been publicly filed with the SEC shall not constitute confidential
information and no party shall have any duty to the other party to maintain
such information as confidential.
6. If any Assignor defaults in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on such
Assignor's part to be performed or fulfilled under or pursuant to this Master
Security Agreement, Laurus may, at its option without waiving its right to
enforce this Master Security Agreement according to its terms, immediately or
at any time thereafter and without notice to any Assignor, perform or fulfill
the same or cause the performance or fulfillment of the same for each
Assignor's joint and several account and at each Assignor's joint and several
cost and expense, and the cost and expense thereof (including reasonable
attorneys' fees) shall be added to the Obligations and shall be payable on
demand with interest thereon at the highest rate permitted by law, or, at
Laurus' option, debited by Laurus from any other deposit accounts in the name
of any Assignor and controlled by Laurus.
7. Each Assignor appoints Laurus, any of Laurus' officers, employees or any
other person or entity whom Laurus may designate as such Assignor's attorney,
with power to execute such documents in each such Assignor's behalf and to
supply any omitted information and correct patent errors in any documents
executed by any Assignor or on any Assignor's behalf; to file financing
statements against such Assignor covering the Collateral (and, in connection
with the filing of any such financing statements, describe the Collateral as
"all assets and all personal property, whether now owned and/or hereafter
acquired" (or any substantially similar variation thereof)); to sign such
Assignor's name on public records; and to do all other things Laurus deem
necessary to carry out this Master Security Agreement. Each Assignor hereby
ratifies and approves all acts of the attorney and neither Laurus nor the
attorney will be liable for any acts of commission or omission, nor for any
error of judgment or mistake of fact or law other than gross negligence or
willful misconduct (as determined by a court of competent jurisdiction in a
final and non-appealable decision). This power being coupled with an interest,
is irrevocable so long as any Obligations remains unpaid.
8. No delay or failure on Laurus' part in exercising any right, privilege or
option hereunder shall operate as a waiver of such or of any other right,
privilege, remedy or option, and no waiver whatever shall be valid unless in
writing, signed by Laurus and then only to the extent therein set forth, and no
waiver by Laurus of any default shall operate as a waiver of any other default
or of the same default on a future occasion. Laurus shall have the right to
enforce any one or more of the remedies available to Laurus, successively,
alternately or concurrently. Each Assignor agrees to join with Laurus in
executing such documents or other instruments to the extent required by the UCC
in form satisfactory to Laurus and in executing such other documents or
instruments as may be required or reasonably deemed necessary by Laurus for
purposes of affecting or continuing Laurus' security interest in the
Collateral.
9. The Assignors shall jointly and severally pay all of Laurus' reasonable
fees, charges, out-of-pocket costs and expenses, including reasonable fees and
disbursements of counsel and appraisers, in connection with (a) the
preparation, execution and delivery of any waiver, any amendment thereto or
consent proposed or executed in connection with the transactions contemplated
by the Documents, (b) Laurus' obtaining performance of the Obligations under
the Documents, including, but not limited to the enforcement or defense of
Laurus' security interests, assignments of rights and liens hereunder as valid
perfected security interests, (c) any attempt to inspect, verify, protect,
collect, sell, liquidate or otherwise dispose of any Collateral, (d) any
appraisals or re-appraisals of any property (real or personal) pledged to
Laurus by any Assignor as Collateral for, or any other Person as security for,
the Obligations hereunder and (e) any consultations in connection with any of
the foregoing. The Assignors shall also jointly and severally pay Laurus'
customary bank charges for all bank services (including wire transfers)
performed or caused to be performed by Laurus for any Assignor at any
Assignor's request or in connection with any Assignor's loan account (if any)
with Laurus. All such costs and expenses together with all filing, recording
and search fees, taxes and interest payable by the Assignors to Laurus shall be
payable on demand and shall be secured by the Collateral. If any tax by any
nation or government, any state or other political subdivision thereof, and any
agency, department or other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government (each, a
"Governmental Authority") is or may be imposed on or as a result of any
transaction between any Assignor, on the one hand, and Laurus on the other
hand, which Laurus is or may be required to withhold or pay, the Assignors
hereby jointly and severally indemnify and hold Laurus harmless in respect of
such taxes, and the Assignors will repay to Laurus the amount of any such taxes
which shall be charged to the Assignors' account; and until the Assignors shall
furnish Laurus with indemnity therefor (or supply Laurus with evidence
satisfactory to it that due provision for the payment thereof has been made),
Laurus may hold without interest any balance standing to each Assignor's credit
(if any) and Laurus shall retain its liens in any and all Collateral.
10. THIS MASTER SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS. All of the rights, remedies, options, privileges and
elections given to Laurus hereunder shall inure to the benefit of Laurus'
successors and assigns. The term "Laurus" as herein used shall include Laurus,
any parent of Laurus', any of Laurus' subsidiaries and any co-subsidiaries of
Laurus' parent, whether now existing or hereafter created or acquired, and all
of the terms, conditions, promises, covenants, provisions and warranties of
this Agreement shall inure to the benefit of each of the foregoing, and shall
bind the representatives, successors and assigns of each Assignor.
11. Each Assignor hereby consents and agrees that the state or federal courts
located in the County of New York, State of New York shall have exclusive
jurisdiction to hear and determine any claims or disputes between Assignor, on
the one hand, and Laurus, on the other hand, pertaining to this Master Security
Agreement or to any matter arising out of or related to this Master Security
Agreement, provided, that Laurus and each Assignor acknowledges that any
appeals from those courts may have to be heard by a court located outside of
the County of New York, State of New York, and further provided, that nothing
in this Master Security Agreement shall be deemed or operate to preclude Laurus
from bringing suit or taking other legal action in any other jurisdiction
reasonably necessary to collect the Obligations, to realize on the Collateral
or any other security for the Obligations, or to enforce a judgment or other
court order in favor of Laurus. Each Assignor expressly submits and consents
in advance to such jurisdiction in any action or suit commenced in any such
court, and each Assignor hereby waives any objection which it may have based
upon lack of personal jurisdiction, improper venue or forum non conveniens.
Each Assignor hereby waives personal service of the summons, complaint and
other process issues in any such action or suit and agrees that service of such
summons, complaint and other process may be made by registered or certified
mail addressed to such assignor at the address set forth on the signature lines
hereto and that service so made shall be deemed completed upon the earlier of
such Assignor's actual receipt thereof or three (3) days after deposit in the
U.S. mails, proper postage prepaid.
The parties desire that their disputes be resolved by a judge applying such
applicable laws. Therefore, to achieve the best combination of the benefits of
the judicial system and of arbitration, the parties hereto waive all rights to
trial by jury in any action, suite, or proceeding brought to resolve any
dispute, whether arising in contract, tort, or otherwise between Laurus, and/or
any Assignor arising out of, connected with, related or incidental to the
relationship established between them in connection with this Master Security
Agreement or the transactions related hereto.
12. It is understood and agreed that any person or entity that desires to
become an Assignor hereunder, or is required to execute a counterpart of this
Master Security Agreement after the date hereof pursuant to the requirements of
any Document, shall become an Assignor hereunder by (x) executing a Joinder
Agreement in form and substance satisfactory to Laurus, (y) delivering
supplements to such exhibits and annexes to such Documents as Laurus shall
reasonably request and (z) taking all actions as specified in this Master
Security Agreement as would have been taken by such Assignor had it been an
original party to this Master Security Agreement, in each case with all
documents required above to be delivered to Laurus and with all documents and
actions required above to be taken to the reasonable satisfaction of Laurus.
13. All notices from Laurus to any Assignor shall be sufficiently given if
mailed or delivered to such Assignor's address set forth below.
Very truly yours,
RPM TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxx
----------------------
Name: Xxxxx Xxxx
Title: CEO
Address: 00000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000-0000
ACKNOWLEDGED:
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxxx Grin
---------------------
Name: Xxxxxx Grin
Title: Director
SCHEDULE A
Entity Jurisdiction of
Formation Organization Identification Number
RPM Technologies, Inc. Delaware 2611798
SCHEDULE B
COMMERCIAL TORT CLAIMS
None.
