SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of June 1, 2001, is between XXXXXXXX.XXX,
INC., a Nevada corporation ("Debtor"), and VERUS INVESTMENTS HOLDINGS INC.
("Secured Party").
W I T N E S S E T H:
WHEREAS, Secured Party has agreed to extend and continue to extend credit
to Debtor under the terms of a Convertible Promissory Note dated as of even date
herewith (the "Note").
WHEREAS, to induce Secured Party to extend credit, Debtor has agreed to
pledge and grant a security interest in the Collateral (as hereinafter defined)
as security for the Liabilities (as hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used herein without definition
and defined in the Offer Letter or Guaranty are used herein as defined therein.
In addition, as used herein:
"Accounts" means any "account," as such term is defined in the Uniform
Commercial Code, and, in any event, shall include, without limitation,
"health-care-insurance receivables," as such term is defined in Revised
Article 9.
"Chattel Paper" means any "chattel paper," as such term is defined in
the Uniform Commercial Code, including but not limited to Electronic
Chattel Paper.
"Collateral" shall have the meaning ascribed thereto in Section 3
hereof.
"Contracts" means all contracts, undertakings, or other agreements
(other than rights evidenced by Chattel Paper, Documents or Instruments) in
or under which a Debtor may now or hereafter have any right, title or
interest, including, without limitation, with respect to an Account, any
agreement relating to the terms of payment or the terms of performance
thereof.
"Copyrights" means any copyrights, rights and interests in copyrights,
works protectable by copyrights, copyright registrations and copyright
applications, including, without limitation, the copyright registrations
and applications listed on Schedule III attached hereto, and all renewals
of any of the foregoing, all income, royalties, damages and payments
now and hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for past,
present and future infringements of any of the foregoing and the right to
xxx for past, present and future infringements of any of the foregoing.
"Deposit Accounts" means any "deposit accounts," as such term is
defined in Revised Article 9.
"Documents" means any "documents," as such term is defined in the
Uniform Commercial Code.
"Electronic Chattel Paper" means any "electronic chattel paper," as
such term is defined in Revised Article 9.
"Equipment" means any "equipment," as such term is defined in the
Uniform Commercial Code and, in any event, shall include, Motor Vehicles.
"Event(s) of Default" means any "Default", as such term is defined in
the Note.
"Fixtures" means all of the following now owned or hereafter acquired
by Debtor: plant fixtures; business fixtures; other fixtures and storage
facilities, wherever located; and all additions and accessions thereto and
replacements therefor.
"General Intangibles" means any "general intangibles," as such term is
defined in the Uniform Commercial Code, and, in any event, shall include,
without limitation, all right, title and interest in or under any Contract,
models, drawings, materials and records, claims, literary rights, goodwill,
rights of performance, Copyrights, Trademarks, Patents, warranties, rights
under insurance policies and rights of indemnification, and shall also
include Payment Intangibles.
"Goods" means any "goods", as such term is defined in the Uniform
Commercial Code.
"Letter-of-credit Rights" means any "letter-of-credit rights, as such
term is defined in Revised Article 9.
"Instruments" means any "instrument," as such term is defined in the
Uniform Commercial Code, and shall include, without limitation, promissory
notes, drafts, bills of exchange, trade acceptances, letters of credit, and
Chattel Paper.
"Inventory" means any "inventory," as such term is defined in the
Uniform Commercial Code, and, in any event, shall include, without
limitation, all Inventory as defined in the Credit Agreement.
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"Investment Property" means any "investment property," as such term is
defined in the Uniform Commercial Code.
"Liabilities" shall mean all obligations and liabilities of Debtor
under or in respect of this Agreement and the Note, together with all other
indebtedness, obligations and liabilities of the Debtor to the Secured
Party from time to time.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Patents" means any patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein, all patentable inventions and those patents and patent
applications listed on Schedule IV attached hereto, and the reissues,
divisions, continuations, renewals, extensions and continuations-in-part of
any of the foregoing, and all income, royalties, damages and payments now
or hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for past,
present and future infringements of any of the foregoing and the right to
xxx for past, present and future infringements of any of the foregoing.
"Payment Intangibles" means any "payment intangibles," as such term is
defined in Revised Article 9.
"Permitted Liens" means those liens and encumbrances described on
Schedule VII attached hereto.
"Person" means any natural person, corporation, partnership, trust,
limited liability company, association, governmental authority or unit, or
any other entity, whether acting in an individual, fiduciary or other
capacity.
"Proceeds" means "proceeds," as such term is defined in the Uniform
Commercial Code and, in any event, includes, without limitation, (a) any
and all proceeds of any insurance, indemnity, warranty or guaranty payable
with respect to any of the Collateral, (b) any and all payments (in any
form whatsoever) made or due and payable from time to time in connection
with any requisition, confiscation, condemnation, seizure or forfeiture of
all or any part of the Collateral by any governmental body, authority,
bureau or agency (or any person acting under color of governmental
authority), and (c) any and all other amounts from time to time paid or
payable under, in respect of or in connection with any of the Collateral.
"Representative" means any Person acting as agent, representative or
trustee on behalf of the Secured Party from time to time.
"Supporting Obligations" means any "supporting obligations," as such
term is defined in Revised Article 9.
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"Trademarks" means any trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos, other business identifiers, prints and labels on
which any of the foregoing have appeared or appear, all registrations and
recordings thereof, and all applications in connection therewith,
including, without limitation, the trademarks and applications listed in
Schedule V attached hereto and renewals thereof, and all income, royalties,
damages and payments now or hereafter due and/or payable under or with
respect to any of the foregoing, including, without limitation, damages and
payments for past, present and future infringements of any of the foregoing
and the right to xxx for past, present and future infringements of any of
the foregoing.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect from time to time in the State of California.
Section 2. Representations, Warranties and Covenants of Debtor. Debtor
represents and warrants to, and covenants with, the Secured Party as follows:
(a) Debtor is the owner of the Collateral in which it purports to
grant a security interest pursuant to Section 3 hereof (subject, with
respect to after acquired Collateral, to Debtor acquiring the same) and no
lien other than Permitted Liens exists or will exist upon such Collateral
at any time;
(b) this Agreement is effective to create in favor of Secured Party
for the benefit of the Secured Party a valid security interest in and lien
upon all of Debtor's right, title and interest in and to the Collateral,
and, upon the filing of appropriate Uniform Commercial Code financing
statements in the jurisdictions listed on Schedule I attached hereto, such
security interest will be duly perfected in all the Collateral (other than
Instruments not constituting Chattel Paper prior to July 1, 2001), and upon
delivery of the Instruments to the Secured Party or its Representative,
duly endorsed by Debtor or accompanied by appropriate instruments of
transfer duly executed by Debtor, the security interest in the Instruments
will be duly perfected;
(c) all of the Equipment, Inventory and Goods owned by Debtor is
located at the places as specified on Schedule I attached hereto. Except as
disclosed on Schedule I, none of the Collateral is in the possession of any
bailee, warehousemen, processor or consignee. The chief place of business,
chief executive office and the office where Debtor keeps its books and
records are located at the place as specified on Schedule I. Debtor
(including any Person acquired by Debtor) does not do business and has not
done business during the past five (5) years under any trade name or
fictitious business name except as disclosed on Schedule II attached
hereto;
(d) no Copyrights, Patents or Trademarks listed on Schedules III, IV
and V, respectively, if any, have been adjudged invalid or enforceable or
have been canceled, in whole or in part, or are not presently subsisting.
Each of such Copyrights, Patents and Trademarks is valid and enforceable.
Debtor is the sole and exclusive owner of the entire and unencumbered
right, title and interest in and to each of such Copyrights, Patents and
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Trademarks, identified on Schedules III, IV and V, as applicable, as being
owned by Debtor, free and clear of any liens, charges and encumbrances,
including without limitation licenses, shop rights and covenants by Debtor
not to xxx third persons. Debtor has adopted, used and is currently using,
or has a current bona fide intention to use, all of such Trademarks and
Copyrights. Debtor has no notice of any suits or actions commenced or
threatened with reference to the Copyrights, Patents or Trademarks owned by
it;
(e) Debtor agrees to deliver to the Secured Party an updated Schedule
I, II, III, IV, V and/or VII within five (5) days of any change thereto;
(f) all Deposit Accounts maintained by Debtor are described on
Schedule VI hereto, which description includes for each such account the
name of the Debtor maintaining such account, the name, address and
telephone and telecopy numbers of the financial institution at which such
account is maintained, the account number and the account officer, if any,
of such account. No Debtor shall open any new Deposit Accounts unless
Debtor shall have given Secured Party ten (10) Business Days' prior written
notice of its intention to open any such new accounts. Debtor shall deliver
to Secured Party a revised version of Schedule VI showing any changes
thereto within five (5) Business Days of any such change. Debtor hereby
authorizes the financial institutions at which Debtor maintains an account
to provide Secured Party with such information with respect to such account
as Secured Party from time to time reasonably may request, and Debtor
hereby consents to such information being provided to Secured Party;
(g) Debtor's Federal Employer Identification Number is listed below
its signature on the signature pages hereto.
Section 3. Collateral. As collateral security for the prompt payment in
full when due (whether at stated maturity, by acceleration or otherwise) of the
Liabilities, Debtor hereby pledges and grants to the Secured Party, a lien on
and security interest in and to all of Debtor's right, title and interest in the
following property and interests in property, whether now owned by Debtor or
hereafter acquired and whether now existing or hereafter coming into existence
and wherever located (all being collectively referred to herein as
"Collateral"):
(a) the Instruments of Debtor, together with all payments thereon or
thereunder;
(b) all Accounts;
(c) all Inventory;
(d) all General Intangibles;
(e) all Equipment;
(f) all Documents;
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(g) all Contracts;
(h) all Goods;
(i) all Investment Property;
(j) all Fixtures;
(k) all Letter-of-credit rights;
(l) Deposit Accounts, including without limitation the balance from
time to time in all bank and depository accounts maintained by
Debtor; and
(m) all other tangible and intangible property of Debtor, including,
without limitation, all Proceeds, products, accessions, rents,
profits, income, benefits, substitutions, additions and
replacements of and to any of the property of Debtor described in
the preceding clauses of this Section 3 (including, without
limitation, any proceeds of insurance thereon and all rights,
claims and benefits against any Person relating thereto) and all
books, correspondence, files, records, invoices and other papers,
including without limitation all tapes, cards, computer runs,
computer programs, computer files and other papers, documents and
records in the possession or under the control of Debtor or any
computer bureau or service company from time to time acting for
Debtor.
Debtor and Secured Party acknowledge that revised Article 9 of the UCC, in
the form or substantially in the form approved in 1998 by the American Law
Institute and the National Conference of Commissioners on Uniform State Law
("Revised Article 9"), has been adopted in the State of California. Grantor and
Secured Party hereby agree that upon the effective date in California of Revised
Article 9 to the transactions contemplated hereby, all references in this
Agreement to sections of the UCC shall be deemed to refer to the equivalent
corresponding sections of Revised Article 9.
Section 4. Covenants; Remedies. In furtherance of the grant of the pledge
and security interest pursuant to Section 3 hereof, Debtor hereby agrees with
the Secured Party, for the benefit of Secured Party and the Lenders, as follows:
4.1. Delivery and Other Perfection; Maintenance, etc.
(a) Delivery of Instruments. Debtor shall deliver and pledge to the
Secured Party or its Representative any and all Instruments, duly endorsed
and/or accompanied by such instruments of assignment and transfer executed
by Debtor in such form and substance as the Secured Party or its
Representative may request; provided, that so long as no Event of Default
shall have occurred and be continuing, Debtor may retain for collection in
the ordinary course of business any Instruments received by Debtor in the
ordinary course of business, and the Secured Party or its Representative
shall, promptly upon request of a Debtor, make appropriate arrangements for
making any other Instruments pledged by Debtor
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available to Debtor for purposes of presentation, collection or renewal
(any such arrangement to be effected, to the extent deemed appropriate by
the Secured Party or its Representative, against trust receipt or like
document).
(b) Other Documents and Actions. Debtor shall give, execute, deliver,
file and/or record any financing statement, notice, instrument, document,
agreement or other papers that may be necessary or desirable (in the
reasonable judgment of the Secured Party or its Representative) to create,
preserve, perfect or validate the security interest granted pursuant hereto
or to enable the Secured Party or its Representative to exercise and
enforce the rights of the Secured Party hereunder with respect to such
pledge and security interest, provided that notices to account debtors in
respect of any Accounts, Payment Intangibles or Instruments shall be
subject to the provisions of clause (e) below.
(c) Books and Records. Debtor shall maintain at its own cost and
expense complete and accurate books and records of the Collateral,
including, without limitation, a record of all payments received and all
credits granted with respect to the Collateral and all other dealings with
the Collateral. Upon the occurrence and during the continuation of any
Event of Default, Debtor shall deliver and turn over any such books and
records (or true and correct copies thereof) to the Secured Party or its
Representative at any time on demand. Debtor shall permit any
representative of the Secured Party to inspect such books and records at
any time during reasonable business hours and will provide photocopies
thereof at Debtor's expense to the Secured Party upon request of the
Secured Party.
(d) Motor Vehicles. Debtor shall, promptly upon the request of the
Secured Party or its Representative, cause the Secured Party to be listed
as the lienholder on each certificate of title or ownership covering any
items of Equipment, including Motor Vehicles.
(e) Notice to Account Debtor; Verification. (i) Upon the occurrence
and during the continuance of any Event of Default, upon request of the
Secured Party or its Representative, Debtor shall promptly notify (and
Debtor hereby authorizes the Secured Party and its Representative so to
notify) each account debtor in respect of any Accounts, Payment Intangibles
or Instruments that such Collateral has been assigned to the Secured Party
hereunder, and that any payments due or to become due in respect of such
Collateral are to be made directly to the Secured Party, and (ii) the
Secured Party and its Representative shall have the right at any time or
times to make direct verification with the account debtors of any and all
of the Accounts and Payment Intangibles.
(f) Intellectual Property. Debtor represents and warrants that the
Copyrights, Patents and Trademarks listed on Schedules III, IV and V,
respectively, constitute all of the registered Copyrights and all of the
Patents and Trademarks now owned by Debtor. If Debtor shall (i) obtain
rights to any new patentable inventions, any registered Copyrights or any
Patents or Trademarks, or (ii) become entitled to the benefit of any
registered Copyrights or any Patents or Trademarks or any improvement on
any Patent, the provisions of this Agreement above shall automatically
apply thereto and Debtor shall give to Secured Party prompt written notice
thereof. Debtor hereby authorizes Secured Party to modify this
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Agreement by amending Schedules III, IV and V, as applicable, to include
any such registered Copyrights or any such Patents and Trademarks. Debtor
shall have the duty (i) to prosecute diligently any patent, trademark, or
service xxxx applications pending as of the date hereof or hereafter, (ii)
to make application on unpatented but patentable inventions and on
trademarks, copyrights and service marks, as appropriate, (iii) to preserve
and maintain all rights in the Copyrights, Patents and Trademarks, to the
extent material to the operations of the business of Debtor and (iv) to
ensure that the Copyrights, Patents and Trademarks are and remain
enforceable, to the extent material to the operations of the business of
Debtor. Any expenses incurred in connection with Debtor's obligations under
this Section 4.1(f) shall be borne by Debtor. Debtor shall abandon any
right to file a patent, trademark or service xxxx application, or abandon
any pending patent, application or any other Copyright, Patent or Trademark
without the written consent of Secured Party, which consent shall not be
unreasonably withheld.
(g) Further Identification of Collateral. Debtor will, when and as
often as requested by the Secured Party or its Representative, furnish to
the Secured Party or such Representative, statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as the Secured Party or its Representative
may reasonably request, all in reasonable detail.
(h) Control of Certain Collateral. Debtor will take any and all
actions required or requested by the Secured Party, from time to time, to
(i) cause the Secured Party to obtain exclusive control of any Investment
Property, Letter-of-credit Rights or Electronic Chattel Paper owned by
Debtor in a manner acceptable to the Secured Party and (ii) obtain from any
issuers of Investment Property or any letter-of-credit and such other
Persons, for the benefit of the Secured Party, written confirmation of and
consent to the Secured Party's control over such Investment Property and
Letter-of-credit Rights. For purposes of this Section 4.1(h), the Secured
Party shall have exclusive control of Investment Property if (i) such
Investment Property consists of certificated securities and a Debtor
delivers such certificated securities to the Secured Party (with
appropriate endorsements if such certificated securities are in registered
form); (ii) such Investment Property consists of uncertificated securities
and either (x) a Debtor delivers such uncertificated securities to the
Secured Party or (y) the issuer thereof agrees, pursuant to documentation
in form and substance satisfactory to the Secured Party, that it will
comply with instructions originated by the Secured Party without further
consent by Debtor, and (iii) such Investment Property consists of security
entitlements and either (x) the Secured Party becomes the entitlement
holder thereof or (y) the appropriate securities intermediary agrees,
pursuant to the documentation in form and substance satisfactory to the
Secured Party, that it will comply with entitlement orders originated by
the Secured Party without further consent by any Debtor.
(i) Marking of Chattel Paper. Debtor will not create any Chattel Paper
without placing a legend on the Chattel Paper acceptable to Secured Party
indicating that Secured Party has a security interest in the Chattel Paper.
Without limiting the foregoing, Debtor shall place such a legend on the
first page of the Chattel Paper and on each page upon which
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a signature or initial appears. Debtor shall not create more than one
original Chattel Paper for any underlying transaction.
(j) Compliance with Loan Documents. Debtor shall comply with the
provisions of the Loan Documents applicable thereto, including, without
limitation, maintenance of insurance, restrictions on dispositions, and
providing Secured Party and its representatives the right to inspections
with respect to the Collateral.
4.2 Other Liens. Debtor will not create, permit or suffer to exist, and
will defend the Collateral against and take such other action as is necessary to
remove, any lien or other encumbrance on the Collateral except Permitted Liens,
and will defend the right, title and interest of the Secured Party in and to the
Collateral and in and to all Proceeds thereof against the claims and demands of
all Persons whatsoever.
4.3 Preservation of Rights. Whether or not any Event of Default has
occurred or is continuing, the Secured Party and its Representative may, but
shall not be required to, take any steps the Secured Party or its Representative
deems necessary or appropriate to preserve any Collateral or any rights against
third parties to any of the Collateral, including obtaining insurance of
Collateral at any time when Debtor has failed to do so, and Debtor shall
promptly pay, or reimburse the Secured Party for, all expenses incurred in
connection therewith.
4.4 Name Change; Location; Bailees.
(a) Debtor will notify Secured Party promptly in writing prior to any
change in Debtor's name, identity or corporate structure, or the proposed
use by Debtor of any tradename or fictitious business name other than any
such name set forth on Schedule II attached hereto.
(b) Except for the sale of Inventory in the ordinary course of
business and except as expressly permitted by the Credit Agreement, Debtor
will keep the Collateral at the locations specified in Schedule I
applicable to Debtor. Debtor will give Secured Party thirty (30) day's
prior written notice of any change in Debtor's chief place of business,
state of organization or of any new location for any of the Collateral.
(c) If any Collateral is at any time in the possession or control of
any warehousemen, bailee, consignee or processor, Debtor shall, upon the
request of Secured Party or its Representative, notify such warehousemen,
bailee, consignee or processor of the lien and security interest created
hereby and shall instruct such Person to hold all such Collateral for
Secured Party's account subject to Secured Party's instructions.
4.5 Deposit Accounts.
(a) At Secured Party's request, on or prior to the Closing Date, or at
any time thereafter, the Secured Party and Debtor shall enter into a bank
agency agreement ("Bank Agency Agreement"), in a form specified by the
Secured Party, with each financial institution
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with which Debtor maintains from time to time any Deposit Accounts (general
or special), which financial institutions are set forth on Schedule VI
attached hereto. Pursuant to the Bank Agency Agreements and pursuant
hereto, Debtor grants and shall grant to the Secured Party a continuing
lien upon, and security interest in, all such Deposit Accounts and all
funds at any time paid, deposited, credited or held in such accounts
(whether for collection, provisionally or otherwise) or otherwise in the
possession of such financial institutions, and each such financial
institution shall act as the Secured Party's agent in connection therewith.
Following the Closing Date, no Debtor shall establish any Deposit Account
with any financial institution unless prior thereto, at the request of
Secured Party, the Secured Party and Debtor shall have entered into a Bank
Agency Agreement with such financial institution.
(b) Upon the Secured Party's request, Debtor shall establish lock-box
or blocked accounts (collectively, "Blocked Accounts") in Debtor's name
with such banks as are acceptable to the Secured Party ("Collecting
Banks"), subject to irrevocable instructions in a form specified by the
Secured Party, to which the obligors of all Accounts and payment
intangibles shall directly remit all payments on Accounts and payment
intangibles and in which Debtor will immediately deposit all cash payments
for Inventory or other cash payments constituting proceeds of Collateral in
the identical form in which such payment was made, whether by cash or
check. In addition, the Secured Party may establish one or more depository
accounts at each Collecting Bank or at a centrally located bank
(collectively, the "Depository Account"). From and after receipt by any
Collecting Bank of written notice from the Secured Party to such Collecting
Bank that an Event of Default has occurred and is continuing, all amounts
held or deposited in the Blocked Accounts held by such Collecting Bank
shall be transferred to the Depository Account. Subject to the foregoing,
Debtor hereby agrees that all payments received by the Secured Party
whether by cash, check, wire transfer or any other instrument, made to such
Blocked Accounts or otherwise received by the Secured Party and whether in
respect of the Accounts or as proceeds of other Collateral or otherwise
will be the sole and exclusive property of the Secured Party for the
benefit of the Secured Party. Debtor, and any of its affiliates, employees,
agents and other Persons acting for or in concert with Debtor shall, acting
as trustee for the Secured Party, receive, as the sole and exclusive
property of the Secured Party, any moneys, checks, notes, drafts or other
payments relating to and/or proceeds of Accounts, Payment Intangibles or
other Collateral which come into the possession or under the control of
Debtor or any affiliates, employees, agent or other Persons acting for or
in concert with Debtor, and immediately upon receipt thereof, Debtor or
Persons shall deposit the same or cause the same to be deposited in kind,
in a Blocked Account.
4.6 Events of Default, Etc. During the period during which an Event of
Default shall have occurred and be continuing:
(a) Debtor shall, at the request of the Secured Party or its
Representative, assemble the Collateral at such place or places as may be
reasonably designated by the Secured Party or its Representative;
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(b) the Secured Party or its Representative may make any reasonable
compromise or settlement deemed desirable with respect to any of the
Collateral and may extend the time of payment, arrange for payment in
installments, or otherwise modify the terms of, any of the Collateral;
(c) the Secured Party shall have all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform Commercial
Code (whether or not said Uniform Commercial Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled under
the laws in effect in any jurisdiction where any rights and remedies
hereunder may be asserted, including, without limitation, the right, to the
maximum extent permitted by law, to exercise all voting, consensual and
other powers of ownership pertaining to the Collateral as if the Secured
Party were the sole and absolute owner thereof (and Debtor agrees to take
all such action as may be appropriate to give effect to such right);
(d) the Secured Party or its Representative in their discretion may,
in the name of the Secured Party or in the name of Debtor or otherwise,
demand, xxx for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so;
(e) the Secured Party or its Representative may take immediate
possession and occupancy of any premises owned, used or leased by Debtor
and exercise all other rights and remedies of an assignee which may be
available to the Secured Party; and
(f) the Secured Party may, upon ten (10) Business Days' prior written
notice to Debtor of the time and place (which notice Debtor hereby agrees
is commercially reasonable notification for purposes hereof), with respect
to the Collateral or any part thereof which shall then be or shall
thereafter come into the possession, custody or control of the Secured
Party or its Representative, sell, lease, assign or otherwise dispose of
all or any part of such Collateral, at such place or places as the Secured
Party deems best, and for cash or for credit or for future delivery
(without thereby assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Secured Party or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at any public sale
(or, to the extent permitted by law, at any private sale) and thereafter
hold the same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise), of
Debtor, any such demand, notice and right or equity being hereby expressly
waived and released. The Secured Party may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the sale, and
such sale may be made at any time or place to which the sale may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.6 shall be applied in accordance with Section 4.9 hereof.
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4.7 Deficiency. If the proceeds of sale, collection or other realization of
or upon the Collateral are insufficient to cover the costs and expenses of such
realization and the payment in full of the Liabilities, Debtor shall remain
liable for any deficiency.
4.8 Private Sale. Debtor recognizes that the Secured Party may be unable to
effect a public sale of any or all of the Collateral consisting of securities by
reason of certain prohibitions contained in the Securities Act of 1933, as
amended (the "Act"), and applicable state securities laws, but may be compelled
to resort to one or more private sales thereof to a restricted group of
purchasers who will be obliged to agree, among other things, to acquire such
Collateral for their own account for investment and not with a view to the
distribution or resale thereof. Debtor acknowledges and agrees that any such
private sale may result in prices and other terms less favorable to the seller
than if such sale were a public sale and, notwithstanding such circumstances,
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner. The Secured Party shall be under no obligation
to delay a sale of any of the Collateral to permit Debtor to register such
Collateral for public sale under the Act, or under applicable state securities
laws, even if Debtor would agree to do so. The Secured Party shall not incur any
liability as a result of the sale of any such Collateral, or any part thereof,
at any private sale provided for in this Agreement conducted in a commercially
reasonable manner, and Debtor hereby waives any claims against the Secured Party
arising by reason of the fact that the price at which the Collateral may have
been sold at such a private sale was less than the price which might have been
obtained at a public sale or was less than the aggregate amount of the
Liabilities, even if the Secured Party accepts the first offer received and does
not offer the Collateral to more than one offeree.
Debtor further agrees to do or cause to be done all such other acts and
things as may be necessary to make such sale or sales of any portion or all of
any such Collateral valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or awards of
any and all courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at Debtor's
expense, provided that Debtor shall be under no obligation to take any action to
enable any or all of such Collateral to be registered under the provisions of
the Act. Debtor further agrees that a breach of any of the covenants contained
in this Section 4.8 will cause irreparable injury to the Secured Party, that the
Secured Party has no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section 4.8
shall be specifically enforceable against Debtor, and Debtor hereby waives and
agrees not to assert any defenses against an action for specific performance of
such covenants except for a defense that no Event of Default has occurred and is
continuing.
4.9 Application of Proceeds. The proceeds of any collection, sale or other
realization of all or any part of the Collateral, and any other cash at the time
held by the Secured Party under this Agreement, shall be applied:
first, to payment of all expenses payable or reimbursable under this
Agreement or the Note;
second, to payment of all accrued unpaid interest on the Liabilities;
12
third, to payment of principal of the Liabilities;
fourth, to payment of any other amounts owing constituting
Liabilities; and
last, any remainder shall be for the account of and paid to Debtor.
4.10 Attorney-in-Fact. Debtor hereby irrevocably constitutes and appoints
the Secured Party, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of Debtor and in the name of Debtor or in its own name, from time to time
in the discretion of the Secured Party, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to execute
and deliver any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement and, without limiting the
generality of the foregoing, hereby gives the Secured Party the power and right,
on behalf of Debtor, without notice to or assent by Debtor, to do the following
upon the occurrence and during the continuation of any Event of Default:
(a) to ask, demand, collect, receive and give acquittance and receipts
for any and all moneys due and to become due under any Collateral and, in
the name of Debtor or its own name or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other
Instruments for the payment of moneys due under any Collateral and to file
any claim or to take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Secured Party for the purpose
of collecting any and all such moneys due under any Collateral whenever
payable and to file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by the Secured
Party for the purpose of collecting any and all such moneys due under any
Collateral whenever payable;
(b) to pay or discharge charges or liens levied or placed on or
threatened against the Collateral other than the Permitted Liens, to effect
any insurance called for by the terms of this Agreement and to pay all or
any part of the premiums therefor;
(c) to direct any party liable for any payment under any of the
Collateral to make payment of any and all moneys due, and to become due
thereunder, directly to the Secured Party or as the Secured Party shall
direct, and to receive payment of and receipt for any and all moneys,
claims and other amounts due, and to become due at any time, in respect of
or arising out of any Collateral;
(d) to sign and indorse any invoices, freight or express bills, bills
of lading, storage or warehouse receipts, drafts against debtors,
assignments, verifications and notices in connection with accounts and
other Documents constituting or relating to the Collateral;
(e) to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the
Collateral or any part thereof and to enforce any other right in respect of
any Collateral;
13
(f) to defend any suit, action or proceeding brought against Debtor
with respect to any Collateral;
(g) to settle, compromise or adjust any suit, action or proceeding
described above and, in connection therewith, to give such discharges or
releases as the Secured Party may deem appropriate; and
(h) generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral as fully and
completely as though the Secured Party were the absolute owners thereof for
all purposes, and to do, at the Secured Party's option and at Debtor's
expense, at any time, or from time to time, all acts and things which the
Secured Party reasonably deems necessary to protect, preserve or realize
upon the Collateral and the Secured Party's lien therein, in order to
effect the intent of this Agreement, all as fully and effectively as Debtor
might do.
Debtor hereby ratifies, to the extent permitted by law, all that such
attorneys lawfully do or cause to be done by virtue hereof. The power of
attorney granted hereunder is a power coupled with an interest and shall be
irrevocable until the Liabilities are indefeasibly paid in full.
Debtor also authorizes the Secured Party, at any time from and after the
occurrence and during the continuation of any Event of Default, (x) to
communicate in its own name with any party to any Contract with regard to the
assignment of the right, title and interest of Debtor in and under the Contracts
hereunder and other matters relating thereto and (y) to execute, in connection
with any sale of Collateral provided for in Section 4.5 hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
4.11 Perfection. Prior to or concurrently with the execution and delivery
of this Agreement, Debtor shall:
(a) file such financing statements, assignments for security and other
documents in such offices as may be necessary or as the Secured Party or
the Representative may request to perfect the security interests granted by
Section 3 of this Agreement;
(b) at Secured Party's request, deliver to the Secured Party or its
Representative the originals of all Instruments together with, in the case
of Instruments constituting promissory notes, allonges attached thereto
showing such promissory notes to be payable to the order of a blank payee;
and
(c) at Secured Party's request, deliver to the Secured Party or its
Representative the originals of all Motor Vehicle titles, duly endorsed
indicating the Secured Party's interest therein as lienholder.
Debtor hereby authorizes Secured Party to file a financing statement
describing the Collateral
14
4.12 Termination. This Agreement and the liens and security interests
granted hereunder shall not terminate until satisfaction of and the full and
complete performance and indefeasible satisfaction of all the Liabilities (other
than contingent indemnification obligations), whereupon the Secured Party shall
forthwith cause to be assigned, transferred and delivered, against receipt but
without any recourse, warranty or representation whatsoever, any remaining
Collateral to or on the order of Debtor. The Secured Party shall also execute
and deliver to Debtor upon such termination such Uniform Commercial Code
termination statements, certificates for terminating the liens on the Motor
Vehicles (if any) and such other documentation as shall be reasonably requested
by Debtor to effect the termination and release of the liens and security
interests in favor of the Secured Party affecting the Collateral.
4.13 Further Assurances.
(a) At any time and from time to time, upon the written request of the
Secured Party or its Representative, and at the sole expense of Debtor,
Debtor will promptly and duly execute and deliver any and all such further
instruments, documents and agreements and take such further actions as the
Secured Party or its Representative may reasonably require in order for the
Secured Party to obtain the full benefits of this Agreement and of the
rights and powers herein granted in favor of the Secured Party, including,
without limitation, using Debtor's best efforts to secure all consents and
approvals necessary or appropriate for the assignment to the Secured Party
of any Collateral held by Debtor or in which Debtor has any rights not
heretofore assigned, the filing of any financing or continuation statements
under the Uniform Commercial Code with respect to the liens and security
interests granted hereby, transferring Collateral to the Secured Party's
possession (if a security interest in such Collateral can be perfected by
possession), placing the interest of the Secured Party as lienholder on the
certificate of title of any Motor Vehicle and obtaining waivers of liens
from landlords and mortgagees. Debtor also hereby authorizes the Secured
Party and its Representative to file any such financing or continuation
statement without the signature of Debtor to the extent permitted by
applicable law.
(b) Upon the request of the Secured Party, Debtor shall procure
insurers' acknowledgements of any assignments of key man life insurance
policies which may be assigned to the Secured Party as additional security
for the Liabilities (if any) and will take all such further action as
required by any insurer or the Secured Party in connection with any such
assignment.
4.14 Limitation on Duty of Secured Party. The powers conferred on the
Secured Party under this Agreement are solely to protect the Secured Party's
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. The Secured Party shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither the
Secured Party nor its Representative nor any of their respective officers,
directors, employees or agents shall be responsible to Debtor for any act or
failure to act, except for willful misconduct. Without limiting the foregoing,
the Secured Party and any Representative shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in their
possession if such Collateral is accorded treatment substantially equivalent to
that which the relevant Secured Party or any
15
Representative, in its individual capacity, accords its own property consisting
of the type of Collateral involved, it being understood and agreed that neither
the Secured Party nor any Representative shall have any responsibility for
taking any necessary steps (other than steps taken in accordance with the
standard of care set forth above) to preserve rights against any person with
respect to any Collateral.
Also without limiting the generality of the foregoing, neither the Secured
Party nor any Representative shall have any obligation or liability under any
Contract or license by reason of or arising out of this Agreement or the
granting to the Secured Party of a security interest therein or assignment
thereof or the receipt by the Secured Party or any Representative of any payment
relating to any Contract or license pursuant hereto, nor shall the Secured Party
or any Representative be required or obligated in any manner to perform or
fulfill any of the obligations of Debtor under or pursuant to any Contract or
license, or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it or the sufficiency of any performance
by any party under any Contract or license, or to present or file any claim, or
to take any action to collect or enforce any performance or the payment of any
amounts which may have been assigned to it or to which it may be entitled at any
time or times.
Section 5. Miscellaneous.
5.1 No Waiver. No failure on the part of the Secured Party or any of its
Representatives to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Secured Party or
any of its Representatives of any right, power or remedy hereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. The rights and remedies hereunder provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights and
remedies provided by law.
5.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws and decisions of the State of New York,
without regard to conflict of law principles thereof.
5.3 Notices. All notices, approvals, requests, demands and other
communications hereunder shall be in writing and delivered by hand or by
nationally recognized overnight courier, or sent by first class mail or sent by
telecopy (with such telecopy to be confirmed promptly in writing sent by first
class mail), sent:
(a) if to Debtor, to: xxxxxxxx.xxx, inc.
00 Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
16
(b) if to Secured Party, to: Verus Investments Holdings Inc.
c/o Verus Support Services, Inc.
000 Xxxxxxx Xxxxxx, #0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Operating Officer
or to such other address or addresses or telecopy number or numbers as any party
hereto may most recently have designated in writing to the other party by such
notice. All such communications shall be deemed to have been given or made (i)
if delivered in person, when delivered, (ii) if delivered by telecopy, on the
date of transmission if transmitted on a business day before 4:00 p.m. New York
time, otherwise on the next business day, (iii) if delivered by overnight
courier, one (1) business day after delivery to the courier properly addressed
and (iv) if mailed, three (3) business days after deposited in the United States
mail, certified or registered.
5.4 Amendments, Etc. The terms of this Agreement may be waived, altered or
amended only by an instrument in writing duly executed by Debtor sought to be
charged or benefited thereby and the Secured Party. Any such amendment or waiver
shall be binding upon the Secured Party and Debtor sought to be charged or
benefited thereby and their respective successors and assigns.
5.5 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the respective successors and assigns of each of the parties
hereto, provided, that Debtor shall not assign or transfer its rights hereunder
without the prior written consent of the Secured Party.
5.6 Counterparts; Headings. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.
5.7 Severability. If any provision hereof is invalid and unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (a) the other
provisions hereof shall remain in full force and effect in such jurisdiction and
shall be liberally construed in favor of the Secured Party and its
Representative in order to carry out the intentions of the parties hereto as
nearly as may be possible and (b) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered as of the day and year first above written.
DEBTOR:
XXXXXXXX.XXX, INC.
By:
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
SECURED PARTY:
VERUS INVESTMENTS HOLDINGS INC.
By:
-------------------------------
Name: Xxxxx Xxxx
Title: President and CEO
17
SCHEDULE I
(LOCATION OF ALL EQUIPMENT, INVENTORY AND GOODS OF THE DEBTOR)
PRINCIPLE OFFICE
----------------
00 XXXXXXXX XXXX
XXXXXX, XX 00000
CO-LOCATION
-----------
000 XXXXXXXXXX XXXXXX
XXXXXX, XX 00000
SALES OFFICE
------------
000 XXXXX XXXXXXXX XXXXXX, XXXXX 000
XXXXXX XXXX, XX 00000
SCHEDULE II
(TRADE NAMES OF THE DEBTOR)
xxxxxxxx.xxx
SCHEDULE III
(LISTS OF COPYRIGHTS)
NONE
SCHEDULE IV
(LISTS OF PATENTS)
PATENT APPLICATION NO. 09/375,384
FILED 8/17/99
FOR: METHOD AND SYSTEM FOR DISTRIBUTING OTHERWISE UNAVAILABLE WORKS OVER THE
INTERNET
SCHEDULE V
(LISTS OF TRADEMARKS)
SERIAL NUMBER 75/008579
XXXX BOOKTECH
SCHEDULE VI
(LISTS OF DEPOSIT ACCOUNTS OF THE DEBTOR)
FLEET BANK 002763-5834
FLEET BANK 002763-5850
FLEET BANK 941837-7121
WINCHESTER CO-OPERATIVE BANK 00-00-0000000000
WINCHESTER SAVINGS BANK 00-00-000000000
SCHEDULE VII
(PERMITTED LIENS)
SECURED PARTY FILING TYPE FILING NUMBER FILING DATE
------------- ----------- ------------- -----------
COPYTRON, INC UCC-1 00736275 8/8/00
BOSTON FINANCIAL, CORP UCC-1 200100682100 3/16/01
VERUS INVESTMENTS
HOLDINGS INC UCC-1 200103447210 6/22/01
