EXHIBIT 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of June 1, 2000, by
and between eMissions Testing, Inc., a Georgia corporation ("eMissions")
("Debtor"), and GCA Strategic Investment Fund Limited, a Bermuda corporation
("Secured Party").
1. DEFINITIONS.
(a) CERTAIN DEFINED TERMS. The following terms, as used herein, have
the meanings set forth below:
"ACCOUNTS" means all of the following: (a) accounts receivable, contract
rights, book debts, notes, drafts and other obligations and indebtedness arising
from the sale, lease or exchange of goods or other property and/or the
performance of services; (b) rights in, to and under all purchase orders for
goods, services or other property; (c) rights to any goods, services or other
property represented by any of the foregoing (including returned or repossessed
goods and unpaid sellers' rights of rescission, replevin, reclamation and rights
to stoppage in transit); (d) monies due to or to become due under all contracts
for the sale, lease or exchange of goods or other property and/or the
performance of services (whether or not yet earned by performance); and (e)
Proceeds of any of the foregoing and all collateral security and guaranties of
any kind given by any Person with respect to any of the foregoing.
"COLLATERAL" has the meaning assigned to that term in SECTION 3.
"DOCUMENTS" means all "documents" (as defined in the UCC) or other
receipts covering, evidencing or representing goods.
"EQUIPMENT" means all "equipment" (as defined in the UCC), including,
without limitation, all machinery, motor vehicles, trucks, trailers, vessels,
aircraft and rolling stock and all parts thereof and all additions and
accessions thereto and replacements therefor.
"EVENT OF DEFAULT" has the meaning assigned to that term in SECTION 9.
"FIXTURES" means all plant fixtures, business fixtures, other fixtures and
storage office facilities and all additions and accessions thereto and
replacements therefor.
86
"GENERAL INTANGIBLES" means all "general intangibles" (as defined in the
UCC), including, without limitation: (a) all agreements, leases, licenses and
contracts to which Debtor is or may become a party; (b) all obligations or
indebtedness owing to Debtor (other than Accounts) from whatever source arising;
(c) all tax refunds; (d) all intellectual property; (e) all choses in action and
causes of action; and (f) all trade secrets and other confidential information
relating to the business of Debtor.
"INSTRUMENTS" means all "instruments," "chattel paper" or "letters of
credit" (each as defined in the UCC) including, but not limited to, promissory
notes, drafts, bills of exchange and trade acceptances.
"INVENTORY" means all "inventory" (as defined in the UCC), including,
without limitation, finished goods, raw materials, work in process and other
materials and supplies (including packaging and shipping materials) used or
consumed in the manufacture or production thereof and returned and repossessed
goods.
"INVESTMENT PROPERTY" means all "investment property" (as defined in the
UCC), including certificated and uncertificated securities, security
entitlements, securities accounts, commodity contracts and commodity accounts
(each as defined in the UCC).
"NOTE" - means that certain 7% Convertible Debenture of even date
herewith, in the original principal amount of $525,000, made and executed by
eMissions and issued to Secured Party, and all amendments and supplements
thereto, restatements thereof and renewals, extensions, restructuring and
refinancings thereof.
"PERSON" - means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"PROCEEDS" - means all proceeds of, and all other profits, rentals or
receipts, in whatever form, arising from the collection, sale, lease, exchange,
assignment, licensing or other disposition of, or realization upon, any
Collateral including, without limitation, all claims against third parties for
loss of, damage to or destruction of, or for proceeds payable under, or unearned
premiums with respect to, policies of insurance with respect to any Collateral,
and any condemnation or requisition payments with respect to any Collateral, in
each case whether now existing or hereafter arising.
"SECURED OBLIGATIONS" - has the meaning assigned to that term in Section
4.
"SECURITY INTERESTS" - means the security interests granted pursuant to
Section 3, as well as all other security interests created or assigned as
additional security for the Secured Obligations pursuant to the provisions of
this Agreement.
"SECURITIES PURCHASE AGREEMENT" - means that certain Securities Purchase
Agreement of even date herewith, by and between Debtor and Secured Party.
87
"UCC" - means the Uniform Commercial Code as in effect on the date hereof
in the State of Georgia, PROVIDED that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection of the
Security Interest in any Collateral or the availability of any remedy hereunder
is governed by the Uniform Commercial Code as in effect on or after the date
hereof in any other jurisdiction, "UCC" means the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof relating
to such perfection or effect of perfection or non-perfection or availability of
such remedy.
2. OTHER DEFINITION PROVISIONS. References to "Sections", "subsections",
"Exhibits" and "Schedules" shall be to Sections, subsections, Exhibits and
Schedules, respectively, of this Agreement unless otherwise specifically
provided. Any of the terms defined in Section 1(a) may, unless the context
otherwise requires, be used in the singular or the plural depending on the
reference. All references to statutes and related regulations shall include
(unless otherwise specifically provided herein) any amendments of same and any
successor statutes and regulations.
3. GRANT OF SECURITY INTERESTS
In order to secure the payment and performance of the Secured Obligations
in accordance with the terms thereof, Debtor hereby grants to Secured Party a
continuing security interest in and to all right, title and interest of Debtor's
in the collateral (and any Proceeds therefrom) described on EXHIBIT A hereto,
whether now owned or existing or hereafter acquired or arising (all being
collectively referred to as the "Collateral").
4. SECURITY FOR OBLIGATIONS
This Agreement secures the payment and performance of the Securities
Purchase Agreement and the Note, and all renewals, extensions, restructuring and
refinancings thereof (the "Secured Obligations").
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants as
follows:
(a) BINDING OBLIGATION. This Agreement is the legally valid and
binding obligation of Debtor, enforceable against Debtor in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws or equitable principles relating to
or limiting creditor's rights generally.
(b) OWNERSHIP OF COLLATERAL. Debtor owns the Collateral free and
clear of any lien, security interest or encumbrance. No effective financing
statement or other form of lien notice covering all or any part of the
Collateral is on file in any recording office.
(c) OFFICE LOCATIONS; DEBTOR NAMES.
(i) As of the date hereof, the chief place of business, the
chief executive office and the office where the Debtor keeps
its books and
88
records is located at the place specified on SCHEDULE 5(D)(I)
hereto. Except as set forth on SCHEDULE 5(D)(I), Debtor has
not maintained any other address at any time during the five
years preceding the date hereof.
(ii) Debtor does not do business nor, as of the date hereof,
has it done business during the past five years under any
corporate name, trade name or fictitious business name except
for Debtor's corporate name set forth above and except as
disclosed on SCHEDULE 5(D)(II) hereto.
(d) PERFECTION. This Agreement, together with the UCC filings
referenced herein, and delivery of the Collateral to Secured Party as of the
Closing (as such term is defined in the Securities Purchase Agreement) create to
secure the Secured Obligations a valid, perfected and first priority security
interest in the Collateral, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
(e) GOVERNMENTAL AUTHORIZATIONS; CONSENTS. No authorization,
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or consent of any other Person is required either
(i) for the grant by Debtor of the Security Interests granted hereby or for the
execution, delivery or performance of this Agreement by Debtor or (ii) for the
perfection of or the exercise by Secured Party of its rights and remedies
hereunder (except as may have been taken by or at the direction of Debtor or
Secured Party) other than the filing of financing statements in connection with
the perfection of the Security Interests.
(f) ACCURATE INFORMATION. All information heretofore, herein or
hereafter supplied to Secured Party by or on behalf of Debtor with respect to
the Collateral is and will be accurate and complete in all material respects.
6. FURTHER ASSURANCES; COVENANTS
(a) OTHER DOCUMENTS AND ACTIONS. Debtor will, from time to time, at
their expense, promptly execute and deliver all further instruments and
documents and take all further action that may be necessary or desirable, or
that Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable Secured
Party to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, Debtor will:
(i) execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby; (ii)
at any reasonable time, upon demand by Secured Party exhibit the Collateral to
allow inspection of the Collateral by Secured Party or persons designated by
Secured Party; and (iii) upon Secured Party's request, appear in and defend any
action or proceeding that may affect Debtor' title to or Secured Party's
security interest in the Collateral.
(b) SECURED PARTY AUTHORIZED. Debtor hereby authorizes Secured Party
to file one or more financing or continuation statements, and amendments
thereto, relating to all or any part of the Collateral without the signatures of
Debtor where permitted by law.
89
(c) CORPORATE OR NAME CHANGE. Debtor will notify Secured Party
promptly in writing at least 30 days prior to (a) any change in Debtor's name
and (b) Debtor's commencing the use of any trade name, assumed name or
fictitious name.
(d) BUSINESS LOCATIONS. Debtor shall give Secured Party thirty (30)
days' prior written notice of any change in its chief place of business or of
any new location of business or any new location for any of the Collateral. With
respect to any new location (which in any event shall be within the continental
United States), Debtor shall execute such documents and take such actions as
Secured Party reasonably deems necessary to perfect and protect the Security
Interests.
(e) BAILEES. No Collateral shall at any time be in the possession or
control of any warehouseman, bailee or Debtor's agents or processors without
Secured Party's prior written consent and unless Secured Party, if Secured Party
has so requested, has received warehouse receipts or bailee letters reasonably
satisfactory to Secured Party prior to the commencement of such storage. Debtor
shall, upon the request of Secured Party, notify any such warehouseman, bailee,
agent or processor of the Security Interests.
(f) INSURANCE. Debtor shall maintain insurance with respect to the
Collateral of types and in amounts that are customary for similarly situated
businesses. Debtor hereby directs all insurers under such policies of insurance
with respect to its assets to pay all material proceeds of such insurance
policies to Secured Party.
(g) TAXES AND CLAIMS. Debtor will pay (i) all taxes, assessments and
other governmental charges imposed upon the Collateral before any penalty
accrues thereon and (ii) all claims (including claims for labor, services,
materials and supplies) for sums that have become due and payable and that by
law have or may become a lien upon any of the Collateral before any penalty or
fine is incurred with respect thereto; PROVIDED that no such tax, charge or
claim need be paid if a Debtor is contesting same in good faith by appropriate
proceedings promptly instituted and diligently conducted and if Debtor has
established such reserve or other appropriate provision, if any, as shall be
required in conformity with generally accepted accounting principles
consistently applied.
(h) COLLATERAL DESCRIPTION. Debtor will furnish to Secured Party,
from time to time, statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral as
Secured Party may reasonably request, all in reasonable detail.
(i) USE OF COLLATERAL; RENEGOTIATION OF TERMS OF DEBENTURE. Debtor
will not use or permit any Collateral to be used unlawfully or in violation of
any provision of this Agreement or any applicable statue, regulation or
ordinance or any policy of insurance covering any of the Collateral.
(j) RECORDS OF COLLATERAL. Debtor shall keep full and accurate books
and records relating to the Collateral and shall stamp or otherwise xxxx such
books and records in
90
such manner as Secured Party may reasonably request indicating that the
Collateral is subject to the Security Interests.
(k) OTHER INFORMATION. Debtor will, promptly upon request, provide
to Secured Party all information and evidence it may reasonably request
concerning the Collateral to enable Secured Party to enforce the provisions of
this Agreement.
7. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Debtor hereby irrevocably
appoints Secured Party as its attorney-in-fact, with full authority in the place
and stead of Debtor and in the name of Debtor, Secured Party or otherwise, from
time to time in Secured Party's discretion to take any action and to execute any
instrument that Secured Party may deem necessary or advisable after the
occurrence and during the continuation of an Event of Default to accomplish the
purposes of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to Secured
Party;
(b) to ask, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for monies due and to become due under or in
respect of any of the Collateral;
(c) to file any claims or take any action or institute any
proceedings that Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral;
(d) to pay or discharge taxes or liens, levied or placed upon or
threatened against the Collateral, the legality or validity thereof and the
amounts necessary to discharge the same to be determined by Secured Party in its
sole discretion, and such payments made by Secured Party to become obligations
of Debtor, due and payable immediately without demand and secured by the
Security Interests; and
(e) 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 Secured Party were the absolute owner thereof for all purposes, and to
do, at Secured Party's option and Debtor's expense, at any time or from time to
time, all acts and things that Secured Party deems necessary to protect,
preserve or realize upon the Collateral.
Neither Secured Party nor any Person designated by Secured Party shall be liable
for any acts or omissions or for any error of judgment or mistake of fact or law
other than as a result of Secured Party's or such Person's gross negligence or
willful misconduct. This power, being coupled with an interest, is irrevocable
so long as this Agreement shall remain in force.
8. TRANSFERS AND OTHER LIENS
Debtor shall not without Secured Party's prior written consent:
91
(a) Sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Collateral.
(b) Create or suffer to exist any lien, security interest or other
charge or encumbrance upon or with respect to any of the Collateral to secure
indebtedness of any Person except for the security interest created by this
Agreement.
9. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an Event of Default by Debtor under this Agreement:
(a) GENERAL DEFAULT. Debtor shall fail to observe or perform any
covenant, obligation, term or condition contained in the Securities Purchase
Agreement, the Note or this Agreement.
(b) NONPAYMENT. Debtor shall fail to pay any principal, interest or
other amount owing under the Note or Securities Purchase Agreement when and as
the same shall be due and payable.
(c) MATERIAL MISREPRESENTATIONS. Any representation or warranty set
forth herein shall prove to be false in any material respect.
(d) GOING CONCERN. Debtor shall terminate its corporate existence or
shall cease to operate as a going concern.
(e) JUDGMENTS. A judgment shall be entered against either Debtor or
a warrant of execution or similar process shall be issued or levied against its
property and within thirty (30) days after such judgment, warrant or process
shall not have been paid in full or proper appeal of the same made.
(f) DEBTOR RELIEF - VOLUNTARY. Debtor shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing.
(g) DEBTOR RELIEF - INVOLUNTARY. Any involuntary case or other
proceeding shall be commenced against Debtor seeking liquidation, reorganization
or other relief with respect to it or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
92
shall remain undismissed and unstayed for a period of thirty (30) days; or an
order for relief shall be entered against Debtor under the federal bankruptcy
laws as now or hereafter in effect.
(h) OTHER. The occurrence any "Event of Default" as that term is
defined in Securities Purchase Agreement.
10. REMEDIES
(a) If any Event of Default shall have occurred and be continuing,
Secured Party may declare the entire outstanding principal amount of the Note
immediately due and payable, provided that upon the occurrence of any Event of
Default set forth in Section 9(f) or 9(g), the outstanding principal amount of
the Note shall become automatically due and payable, without any notice, demand
or other action on the part of Secured Party.
(b) If any Event of Default shall have occurred and be continuing,
Secured Party may exercise in respect of the Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the UCC (whether or
not the UCC applies to the affected Collateral) and also may: (i) require Debtor
to, and Debtor hereby agree that it will, at its expense and upon request of
Secured Party forthwith, assemble all or part of the Collateral as directed by
Secured Party and make it available to Secured Party at a place to be designated
by Secured Party which is reasonably convenient to both parties; (ii) without
notice or demand or legal process, enter upon any premises of Debtor and take
possession of the Collateral; (iii) without notice except as specified below,
sell the Collateral or any part thereof in one or more parcels at public or
private sale, at any of Secured Party's offices or elsewhere, at such time or
times, for cash, on credit or for future delivery, and at such price or prices
and upon such other terms as Secured Party may deem commercially reasonable;
(iv) notify the obligors on any Accounts or Instruments to make payments
thereunder directly to Secured Party; and (v) without notice to Debtor, renew,
modify or extend any of the Accounts and Instruments or grant waivers or
indulgences with respect thereto or accept partial payment thereof, or
substitute any obligor thereon, in any manner as Secured Party may deem
advisable, without affecting or diminishing Debtor' continuing obligations
hereunder. Debtor agrees that, to the extent notice of sale shall be required by
law, at least ten days' notice to Debtor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. At any sale of the Collateral, if permitted by law,
Secured Party may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for the purchase of the Collateral or any portion
thereof for the account of Secured Party. Secured Party shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. To
the extent permitted by law, Debtor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law now
existing or hereafter enacted.
93
(c) Upon the occurrence of an Event of Default hereunder, Secured
Party shall have the right to enter upon the premises of Debtor where the
Collateral is located (or is believed to be located) without any obligation to
pay rent to Debtor, or any other place or places where the Collateral is
believed to be located and kept, to render the Collateral useable or saleable,
to remove the Collateral therefrom to the premises of Secured Party or any agent
of Secured Party for such time as Secured Party may desire in order to
effectively collect or liquidate the Collateral, and/or to require Debtor to
assemble the Collateral and make it available to Secured Party at a place or
places to be designated by Secured Party. Upon the occurrence of an Event of
Default hereunder, Secured Party shall have the right to take possession of
Debtor' original books and records, to obtain access to Debtor's data processing
equipment, computer hardware and software relating to the Collateral and to use
all of the foregoing and the information contained therein in any manner Secured
Party deems appropriate; and Secured Party shall have the right to notify postal
authorities to change the address for delivery of Debtor' mail to an address
designated by Secured Party and to receive, open and dispose of all mail
addressed to Debtor.
11. LIMITATION ON DUTY OF SECURED PARTY WITH RESPECT TO COLLATERAL. Beyond
the safe custody thereof, Secured Party shall have no duty with respect to any
Collateral in its possession or control (or in the possession or control of any
agent or bailee) or with respect to any income thereon or the preservation of
rights against prior parties or any other rights pertaining thereto. Secured
Party shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property. Secured
Party shall not be liable or responsible for any loss or damage to any of the
Collateral, or for any diminution in the value thereof, by reason of the act or
omission of any warehouseman, carrier, forwarding agency, consignee or other
agent or bailee selected by Secured Party in good faith.
12. APPLICATION OF PROCEEDS. Upon the occurrence and during the
continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Collateral shall be applied: FIRST, to
all fees, costs and expenses incurred by Secured Party with respect to the
Collateral; and SECOND, to the Secured Obligations. Secured Party shall pay over
to Debtor any surplus and Debtor shall remain liable for any deficiency.
94
13. EXPENSES. Debtor agrees to pay all insurance expenses and all expenses
of protecting, storing, warehousing, appraising, insuring, handling, maintaining
and shipping the Collateral, all costs, fees and expenses of perfecting and
maintaining the Security Interests, and any and all excise, property, sales and
use taxes imposed by any state, federal or local authority on any of the
Collateral, or with respect to periodic appraisals and inspections of the
Collateral, or with respect to the sale or other disposition thereof. If Debtor
fails promptly to pay any portion of the above expenses when due or to perform
any other obligation of Debtor under this Agreement, Secured Party may, at its
option, but shall not be required to, pay or perform the same, and Debtor agree
to reimburse Secured Party therefor on demand. All sums so paid or incurred by
Secured Party for any of the foregoing, any and all other sums for which Debtor
may become liable hereunder and all costs and expenses (including attorneys'
fees, legal expenses and court costs) incurred by Secured Party in enforcing or
protecting the Security Interests or any of their rights or remedies under this
Agreement shall be payable on demand, shall constitute Secured Obligations,
shall bear interest until paid at the rate provided in the Note and shall be
secured by the Collateral.
14. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL. Upon payment
in full of all Secured Obligations, the Security Interests shall terminate and
all rights to the Collateral shall revert to Debtor. Upon such termination of
the Security Interests or release of any Collateral, Secured Party will, at the
expense of Debtor, execute and deliver to Debtor such documents as Debtor shall
reasonably request to evidence the termination of the Security Interests or the
release of such Collateral, as the case may be.
15. NOTICES. Each notice, communication and delivery under this Agreement:
(a) shall be made in writing signed by the party giving it; (b) shall specify
the section of this Agreement pursuant to which given; (c) shall either be
delivered in person or by telecopier, a nationally recognized next business day
courier service or Express Mail; (d) unless delivered in person, shall be given
to the address specified below; (e) shall be deemed to be given (i) if delivered
in person, on the date delivered, (ii) if sent by telecopier, on the date of
telephonic confirmation of receipt, (iii) if sent by a nationally recognized
next business day courier service with all costs paid, on the next business day
after it is delivered to such courier, or (iv) if sent by Express Mail (with
postage and other fees paid), on the next business day after it is mailed. Such
notice shall not be effective unless copies are provided contemporaneously as
specified below, but neither the manner nor the time of giving notice to those
to whom copies are to be given (which need not be the same as the addressee)
shall control the date notice is given or received. The addresses and
requirements for copies are as follows:
If to eMissions:
eMissions Testing, Inc.
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telecopier No.
Confirmation No.
Attention: Xxxxxxx Xxxxxxx, President
95
If to Secured Party:
GCA Strategic Investment Fund Limited
Mechanics Xxxxxxxx
00 Xxxxxx Xxxxxx
Xxxxxxxx XX XX
Xxxxxxx
Attn: Xxxxx X. Xxxxxx
Telecopier No.678-947- 6499
Confirmation No.000-000-0000
16. WAIVERS, NON-EXCLUSIVE REMEDIES, SEVERABILITY. Except as otherwise
expressly set forth in any particular provision of this Agreement, any consent
or approval required or permitted by this Agreement to be given by Secured Party
may be given, and any term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the performance or observance by
Debtor of any term of this Agreement, the Securities Purchase Agreement or the
Note may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written specific
consent of Secured Party. No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon. No course of dealing or
delay or omission on the part of Secured Party in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon Debtor shall entitle Debtor to other or further notice or demand in
similar or other circumstances. The rights in this Agreement, the Securities
Purchase Agreement and the Note are cumulative and are not exclusive of any
other remedies provided by law. The invalidity, illegality or unenforceability
of any provision in or obligation under this Agreement shall not affect or
impair the validity, legality or enforceability of the remaining provisions or
obligations under this Agreement.
17. SUCCESSORS AND ASSIGNS. This Agreement is for the benefit of Secured
Party and its successors and assigns, and in the event of an assignment of all
or any of the Secured Obligations, the rights hereunder, to the extent
applicable to the Secured Obligations so assigned, may be transferred with such
Secured Obligations. This Agreement shall be binding on Debtor and its
successors and assigns, provided that Debtor shall not assign this Agreement
without Secured Party's prior written consent.
18. CHANGES IN WRITING. No amendment, modification, termination or waiver
of any provision of this Agreement or consent to any departure by Debtor
therefrom, shall in any event be effective without the written concurrence of
Secured Party and Debtor.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia, without giving effect to the
conflicts of law principles thereof.
96
20. HEADINGS. Cross reference pages and headings contained herein are for
convenience of reference only, do not constitute a part of this Agreement, and
shall not be deemed to limit or affect any of the provisions hereof.
21. COUNTERPARTS. This Agreement may be executed by each party upon a
separate copy, and in such case one counterpart of this Agreement shall consist
of enough of such copies to reflect the signatures of all of the parties. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, and each of which shall constitute one and the same agreement. Any
party may deliver an executed copy of this Agreement and of any documents
contemplated hereby by facsimile transmission to another party and such delivery
shall have the same force and effect as any other delivery of a manually signed
copy of this Agreement or of such other documents.
DULY EXECUTED and delivered by the parties on the date first written
above.
eMISSIONS TESTING, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: President
----------------------------------
GCA STRATEGIC INVESTMENT FUND LIMITED
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Director
----------------------------------
97
EXHIBIT A
COLLATERAL
1. Five gas analyzers used in the business of Debtor with serial numbers:
2. Five dynamometers used in the business of Debtor with serial numbers:
3. All after acquired equipment of Debtor.
98
SCHEDULE 5(D)(I)
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
99
SCHEDULE 5.2(D)(II)
None.
100
AMENDMENT NUMBER 1
TO
SECURITY AGREEMENT
THIS IS AMENDMENT NUMBER 1 ("this Amendment") that is being executed and
delivered by and between eMissions Testing, Inc., a Georgia corporation
("eMissions") and GCA Strategic Investment Fund Limited, a Bermuda corporation
("GCA"), and dated effective as of September15, 2000 in order to amend that
certain Security Agreement by and between eMissions and the GCA and dated as of
June 1, 2000 (the "Security Agreement") and by which eMissions and GCA, in
consideration of the mutual promises contained in the Security Agreement and in
this Amendment and other good and valuable consideration (the sufficiency,
mutuality and adequacy of which are hereby acknowledged), hereby agree as
follows:
1. AMENDMENT TO ss. 1(A). The Security Agreement ss. 1(a) is hereby
amended by deleting the defined term "Note" in its entirety and substituting in
lieu of it the following:
"NOTES" - means all of the 7% Convertible Debentures made and
executed by eMissions and issued to Secured Party pursuant to the
Securities Purchase Agreement dated as of June 1, 2000, as amended,
and all amendments and supplements thereto, restatements thereof and
renewals, extensions, restructuring and refinancings thereof.
2. AMENDMENT TO ss.4. The Security Agreement ss.4 is hereby amended by
deleting it in its entirety and substituting in lieu of it the following:
This Agreement secures the payment and performance of the Securities
Purchase Agreement and the Notes, and all renewals, extensions, restructurings
and refinancings thereof (the "Secured Obligations").
3. NO OTHER EFFECT ON THE SECURITY AGREEMENT. Except as amended by this
Amendment, the Security Agreement remains in full force and effect.
4. EFFECTIVE DATE. This Amendment is effective as of September 15, 2000.
5. MISCELLANEOUS.
(a) CAPTIONS; CERTAIN DEFINITIONS. Titles and captions of or in this
Amendment are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Amendment or the
intent of any of its provisions. The parties to this Amendment agree to all
Definitions in this statement of the parties to this Amendment. A capitalized
term in this Amendment has the same meaning as it has as a capitalized term in
the Security Agreement unless the context clearly indicates to the contrary.
101
(b) CONTROLLING LAW. This Amendment is governed by, and shall be
construed and enforced in accordance with the laws of the State of Georgia
(except the laws of that jurisdiction that would render such choice of laws
ineffective).
(c) COUNTERPARTS. This Amendment may be executed in one or more
counterparts (one counterpart reflecting the signatures of all parties), each of
which shall be deemed to be an original, and it shall not be necessary in making
proof of this Amendment or its terms to account for more than one of such
counterparts. This Amendment may be executed by each party upon a separate copy,
and one or more execution pages may be detached from a copy of this Amendment
and attached to another copy in order to form one or more counterparts.
DULY EXECUTED and delivered by eMissions and GCA, on September 15, 2000,
effective as set forth above.
EMISSIONS: eMissions Testing, Inc.
---------
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Title: President
-----------------------------
GCA: GCA Strategic Investment Fund Limited
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Title: Director
-----------------------------
* * * * *
102
