EXHIBIT 10.28
SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (this "Agreement") is dated as of February
17, 2004 between CT Holdings, Inc., a Delaware corporation ("Pledgor"), and
Xxxxxx X. Xxxxxxx (the "Secured Party").
PRELIMINARY STATEMENT
WHEREAS, the Pledgor is the maker of and has entered into that certain
convertible note, dated of even date herewith, with Secured Party, in the
principal sum of $30,000, bearing interest at the rate or rates therein stated
(the "Note"); and
WHEREAS, in order to induce Secured Party to lend money to Pledgor and to
enter into the Note, Pledgor has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. GRANT OF SECURITY INTEREST. Pledgor hereby grants to the Secured Party a
---------------------------------
lien on and security interest in and to any and all right, title and interest in
all of the shares of Series A-3 Convertible Preferred Stock of Parago, Inc.,
which were obtained using the proceeds of the loan under the Note, together with
(a) any dividends or distributions thereon, (b) any additional shares resulting
from any stock split or similar event, (c) any shares of common stock issued
upon conversion of such shares, and (d) the proceeds from any sale of Parago
resulting in payments to holders of such shares, such assets being herein
sometimes referred to as the "Collateral." All terms used in this Agreement
that are defined in the Uniform Commercial Code of the State of Texas ("UCC")
shall have the same meanings herein as such terms are defined in the UCC, unless
this Agreement shall otherwise specifically provide. The term Collateral as
used herein shall also include, without limitation, all insurance payable by
reason of loss or damage to the Collateral.
2. OBLIGATIONS HEREBY SECURED. The lien and security interest herein
---------------------------------
granted and provided for is made and given to secure, and shall secure, the
payment and performance of (a) Pledgor's obligations under the Note executed in
connection herewith (whether arising before or after the filing of a petition in
bankruptcy) until such time as the Note is paid in full, and (b) any and all
expenses and charges, legal or otherwise, suffered or incurred by the Secured
Party in collecting or enforcing its rights under the Note or protecting or
preserving any security therefor, including, without limitation, the lien and
security interest granted hereby (all of the foregoing being hereinafter
referred to as the "Obligations").
3. COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES. The Pledgor hereby
------------------------------------------------------------
covenants and agrees with, and represents and warrants to, the Secured Party
that:
(a) Pledgor has and will have at all times good title to the
Collateral, and full right, power and authority to grant a security interest in
the Collateral to Secured Party in the manner provided herein, free and clear of
any lien, security interest or other charge or encumbrance other than as
permitted by the Secured Party. This Agreement creates a legal, valid and
binding security interest in favor of Secured Party in the Collateral securing
the Obligations. Possession by Secured Party of all certificates, instruments
and cash constituting Collateral from time to time and/or the filing of the
financing statements delivered prior hereto and/or concurrently herewith by
Pledgor to Secured Party will perfect and establish the first priority of
Secured Party's security interest hereunder in the Collateral.
(b) The Collateral and every part thereof is and shall be free and
clear of all security interests, liens (including, without limitation,
mechanics', laborers' and statutory liens), attachments, levies, and
encumbrances of every kind, nature and description, whether voluntary or
involuntary other than as permitted by the Secured Party. Pledgor shall warrant
and defend the Collateral against any claims and demands of all persons at any
time claiming the same or any interest in the Collateral adverse to the Secured
Party.
(c) Pledgor's office and the office where the records concerning the
Collateral are kept is located at its address set forth on the signature page
hereof. Except as specified elsewhere herein, all Collateral shall be kept at
such address, and Secured Party shall be entitled to maintain possession of the
securities representing the Collateral.
(d) Pledgor shall promptly pay when due all taxes, assessments, and
governmental charges and levies upon or against Pledgor or any of the
Collateral, before the same become delinquent and before penalties accrue
thereon, unless and to the extent that the same are being contested in good
faith by appropriate proceedings which prevent foreclosure or other realization
upon any of the Collateral and preclude interference with the operation of
Pledgor's business in
the ordinary course, and Pledgor shall have established adequate reserves
therefor.
(e) Pledgor shall not, without the Secured Party's prior written
consent, sell, assign, mortgage, lease, or otherwise dispose of the Collateral
or any interest therein.
(f) If any Collateral is in the possession or control of Pledgor's
agents or processors and the Secured Party so requests, Pledgor agrees to notify
such agents or processors in writing of the Secured Party's security interest
therein and instruct them to hold all such Collateral for the Secured Party's
account and subject to the Secured Party's instructions.
(g) Pledgor agrees from time to time to deliver to the Secured Party
upon written notice such evidence of the existence, identity, and location of
its Collateral and of its availability as collateral security pursuant hereto as
the Secured Party may request. The Secured Party shall have the right to verify
all or any part of the Collateral in any reasonable manner, and through any
medium, which the Secured Party considers appropriate (including, without
limitation, the verification of Collateral by use of a fictitious name), and
Pledgor agrees to furnish all assistance and information, and perform any acts,
which the Secured Party may require in connection therewith.
(h) Pledgor agrees to execute and deliver to the Secured Party such
further agreements, assignments, instruments, and documents and to do all such
other things as the Secured Party may deem necessary or appropriate to assure
the Secured Party its lien and security interest hereunder, including such
financing statements, and amendments thereof or supplements thereto, and such
other instruments and documents as the Secured Party may from time to time
require in order to comply with the UCC. Pledgor hereby agrees that a carbon,
photographic, or other reproduction of this Agreement or any such financing
statement is sufficient for filing as a financing statement by the Secured Party
without notice thereof to Pledgor wherever the Secured Party in its sole
discretion desires to file the same. In the event for any reason the law of any
jurisdiction other than Texas becomes or is applicable to the Collateral or any
part thereof, or to any of the Obligations, Pledgor agrees to execute and
deliver all such instruments and documents and to do all such other things as
the Secured Party in its sole discretion deems necessary or appropriate to
preserve, protect, and enforce the lien and security interest of the Secured
Party under the law of such other jurisdiction. Pledgor agrees to xxxx its
books and records to reflect the lien and security interest of the Secured Party
in the Collateral.
(i) On failure of Pledgor to perform any of the covenants and
agreements herein contained, the Secured Party may, at its option, perform the
same and in so doing may expend such reasonable sums as the Secured Party may
reasonably deem advisable in the performance thereof, including, without
limitation, the payment of any taxes, liens, and encumbrances, expenditures made
in defending against any adverse claims, and all other expenditures which the
Secured Party may be compelled to make by operation of law or which the Secured
Party may make by agreement or otherwise for the protection of the security
hereof. All such sums and amounts so expended shall be repayable by Pledgor
upon demand and shall constitute additional Obligations secured hereunder. No
such performance of any covenant or agreement by the Secured Party on behalf of
Pledgor, and no such advancement or expenditure therefor, shall relieve Pledgor
of any default under the terms of this Agreement or in any way obligate the
Secured Party to take any further or future action with respect thereto.
4. COLLECTION OF RECEIVABLES. Upon the occurrence of any Event of Default
--------------------------------
and whether or not the Secured Party has exercised any or all of its rights
under other provisions of this Section 4, the Secured Party or its designee may
notify the Pledgor's customers and account debtors at any time that receivables
or any other Collateral have been assigned to the Secured Party or of the
Secured Party's security interest therein, and either in its own name, or
Pledgor's name, or both, demand, collect, receive, receipt for, xxx for,
compound, and give acquittance for any or all amounts due or to become due on
receivables or any other Collateral, and in the Secured Party's discretion file
any claim or take any other action or proceeding which the Secured Party may
deem necessary or appropriate to protect or realize upon the security interest
of the Secured Party in the receivables or any other Collateral.
5. POWER OF ATTORNEY. In addition to any other powers of attorney contained
------------------------
herein, Pledgor hereby appoints the Secured Party, its nominee, and any other
person whom the Secured Party may designate, as Pledgor's attorney-in-fact, with
full power during the existence of an Event of Default to sign Pledgor's name on
verifications of accounts and other Collateral; to send requests for
verification of Collateral to Pledgor's customers, account debtors, and other
obligors; to endorse Pledgor's name on any checks, notes, acceptances, money
orders, drafts, and any other forms of payment or security that may come into
the Secured Party's possession or on any assignments, stock powers, or other
instruments of transfer relating to the Collateral or any part thereof; to sign
Pledgor's name on any invoice or xxxx of lading relating to any Collateral, on
claims to enforce collection of any Collateral, on notices to and drafts against
customers and account debtors and other obligors, on schedules and assignments
of Collateral, on notices of assignment and on public records; to notify the
post office authorities to change the address for delivery of Pledgor's mail to
an address designated by the Secured Party; to receive, open and dispose of all
mail addressed to Pledgor; and to do all things necessary to carry out this
Agreement.
Pledgor hereby ratifies and approves all acts of any such attorney and agrees
that neither the Secured Party nor any such attorney will be liable for any acts
or omissions nor for any error of judgment or mistake of fact or law other than
such person's gross negligence or willful misconduct. The Secured Party may file
one or more financing statements disclosing its security interest in any or all
of the Collateral without Pledgor's signature appearing thereon. Pledgor also
hereby grants the Secured Party a power of attorney to execute any such
financing statements, or amendments and supplements to financing statements, on
behalf of Pledgor without notice thereof to such Pledgor. The foregoing powers
of attorney, being coupled with an interest, are irrevocable until the
Obligations have been fully paid and satisfied.
6. DEFAULTS AND REMEDIES.
------------------------------
(a) An "Event of Default" shall mean any of the following: (i) an
Event of Default under the Note, or (ii) a breach by Pledgor of any of the terms
hereof.
(b) Upon the occurrence and during the continuation of any Event of
Default, the Secured Party shall have, in addition to all other rights provided
herein or by law, the rights and remedies of a secured party under the UCC
(regardless of whether the UCC is the law of the jurisdiction where the rights
or remedies are asserted and regardless of whether the UCC applies to the
affected Collateral), and further the Secured Party may, without demand and
without advertisement, notice, hearing, or process of law, all of which Pledgor
hereby waives, at any time or times, sell and deliver all or any part of the
Collateral held by or for it at public or private sale, for cash, upon credit,
or otherwise, at such prices and upon such terms as the Secured Party deems
advisable, in its sole discretion. In addition to all other sums due the
Secured Party hereunder, the Pledgor shall pay the Secured Party all costs and
expenses incurred by the Secured Party, including attorneys' fees and court
costs, in obtaining, liquidating or enforcing payment of Collateral or the
Obligations or in the prosecution or defense of any action or proceeding by or
against the Secured Party or Pledgor concerning any matter arising out of or
connected with this Agreement or the Collateral or the Obligations, including,
without limitation, any of the foregoing arising in, arising under or related to
a case under the United States Bankruptcy Code (or any successor statute). Any
requirement of reasonable notice shall be met if such notice is personally
served on or mailed, postage prepaid, to Pledgor in accordance with Section 9(b)
hereof at least 10 days before the time of sale or other event giving rise to
the requirement of such notice; provided however, no notification need be given
to Pledgor if Pledgor has signed, after an Event of Default has occurred, a
statement renouncing any right to notification of sale or other intended
disposition. The Secured Party shall not be obligated to make any sale or other
disposition of the Collateral regardless of notice having been given. The
Secured Party may be the purchaser at any such sale. Pledgor hereby waives all
of its rights of redemption from any such sale. The Secured Party may postpone
or cause the postponement of the sale of all or any portion of the Collateral by
announcement at the time and place of such sale, and such sale may, without
further notice, be made at the time and place to which the sale was postponed or
the Secured Party may further postpone such sale by announcement made at such
time and place.
(c) Without in any way limiting the foregoing, upon the occurrence and
during the continuation of any Event of Default, the Secured Party shall have
the right, in addition to all other rights provided herein or by law, to take
physical possession of any and all of the Collateral, the right for that purpose
to enter without legal process any premises where the Collateral may be found
(provided such entry be done lawfully), and the right to maintain such
possession on Pledgor's premises (Pledgor hereby agreeing to lease such premises
without cost or expense to the Secured Party or its designee if the Secured
Party so requests) or to remove the Collateral or any part thereof to such other
places as the Secured Party may desire. Upon the occurrence and during the
continuation of any Event of Default, the Secured Party shall have the right to
exercise any and all rights with respect to deposit accounts of each Pledgor
maintained with the Secured Party, including, without limitation, the right to
collect, withdraw, and receive all amounts due or to become due or payable under
each such deposit account. Upon the occurrence and during the continuation of
any Event of Default, Pledgor shall, upon the Secured Party's demand, assemble
the Collateral and make it available to the Secured Party at a place designated
by the Secured Party.
(d) Failure by the Secured Party to exercise any right, remedy, or
option under this Agreement or any other agreement between Pledgor, and the
Secured Party or provided by law, or delay by the Secured Party in exercising
the same, shall not operate as a waiver; and no waiver by the Secured Party
shall be effective unless it is in writing and then only to the extent
specifically stated. The rights and remedies of the Secured Party under this
Agreement shall be cumulative and not exclusive of any other right or remedy
which the Secured Party may have. For purposes of this Agreement, an Event of
Default shall be construed as continuing after its occurrence until the same is
waived in writing by the Secured Party.
(e) Anything herein to the contrary notwithstanding, Pledgor agrees to
indemnify and hold the Secured Party, his representatives, agents and attorneys
harmless from and against any and all losses damages or expenses suffered,
sustained or required to be paid by Secured Party by reason of any
representation
or warranty of the Pledgor made pursuant to this Agreement being untrue or
incorrect in any material respect.
7. APPLICATION OF PROCEEDS. The proceeds and avails of the Collateral at
------------------------------
any time received by the Secured Party after the occurrence and during the
continuation of any Event of Default shall, when received by the Secured Party
in cash or its equivalent, be applied by the Secured Party as follows:
(i) First, to the payment and satisfaction of all sums paid and costs
and expenses incurred by the Secured Party hereunder or otherwise in connection
herewith, including such monies paid or incurred in connection with protecting,
preserving or realizing upon the Collateral or enforcing any of the terms
hereof, including reasonable attorneys' fees and court costs, together with any
interest thereon as set forth in the Note (but without preference or priority of
principal over interest or of interest over principal), to the extent the
Secured Party is not reimbursed therefor by the Pledgor; and
(ii) Second, to the payment and satisfaction of the remaining
Obligations;
Pledgor shall remain liable to the Secured Party for any deficiency. Any
surplus remaining after the full payment and satisfaction of the foregoing shall
be returned to Pledgor or to whomsoever the Secured Party reasonably determines
is lawfully entitled thereto.
8. CONTINUING AGREEMENT. This Agreement shall be a continuing agreement in
---------------------------
every respect and shall remain in full force and effect until the Obligations
have been fully paid. Upon such termination of this Agreement, the Secured
Party shall, upon the request and at the expense of Pledgor, forthwith release
its security interest hereunder and return any Collateral to Pledgor.
9. MISCELLANEOUS.
--------------------
(a) This Agreement cannot be changed or terminated orally. All of the
rights, privileges, remedies, and options given to the Secured Party hereunder
shall inure to the benefit of its successors and assigns, and all the terms,
conditions, covenants, agreements, representations, and warranties of and in
this Agreement shall bind the Pledgor and its legal representatives, successors
and assigns, provided that Pledgor may not assign its rights or delegate its
duties hereunder without the Secured Party's prior written consent.
(b) Except as otherwise specified herein, all notices hereunder shall
be in writing (including, without limitation, notice by telecopy) and shall be
given to the relevant party at its address or telecopier number set forth below,
or such other address or telecopier number as such party may hereafter specify
by notice to the other given by United States certified or registered mail, by
telecopy or by other telecommunication device capable of creating a written
record of such notice and its receipt. Notices hereunder shall be addressed:
to the Pledgor: to the Secured Party:
CT Holdings, Inc. Xxxxxx X. Xxxxxxx
8750 North Central Expressway 0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000 Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, Xxxxx 00000
Phone No. 000-000-0000 Phone No. 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Attention: CEO and CFO
Each such notice, request or other communication shall be effective (i) if given
by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section and a confirmation of such telecopy has been received
by the sender, (ii) if given by mail, five (5) days after such communication is
deposited in the mail, certified or registered with return receipt requested,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the addresses specified in this Section.
(c) In the event and to the extent that any provision hereof shall be
deemed to be invalid or unenforceable by reason of the operation of any law or
by reason of the interpretation placed thereon by any court, this Agreement
shall to such extent be construed as not containing such provision, but only as
to such locations where such law or interpretation is operative, and the
invalidity or unenforceability of such provision shall not affect the validity
of any remaining provisions hereof, and any and all other provisions hereof
which are otherwise lawful and valid shall remain in full force and effect.
(d) The lien and security interest herein created and provided for
stand as direct and primary security for the Obligations of the Pledgor pursuant
to the Note. No application of any sums received by the Secured Party in
respect of the Collateral or any disposition thereof to the reduction of the
Obligations or any part thereof shall in any manner entitle Pledgor to any
right, title or interest in or to the Obligations or any collateral or security
therefor, whether by subrogation or otherwise, unless and until the Obligation
has been fully paid.
Pledgor acknowledges that the lien and security interest hereby created and
provided are absolute and unconditional and shall not in any manner be affected
or impaired by any acts of omissions whatsoever of the Secured Party or any
other holder of the Obligation, and without limiting the generality of the
foregoing, the lien and security interest hereof shall not be impaired by any
acceptance by the Secured Party or any other holder of any Obligations of any
other security for or guarantors upon any of the Obligations or by any failure,
neglect or omission on the part of the Secured Party or any other holder of any
Obligations to realize upon or protect any of the Obligations or any collateral
or security therefor. Except as otherwise permitted by the Secured Party, the
lien and security interest hereof shall not in any manner be impaired or
affected by any sale, pledge, surrender, compromise, settlement, release,
renewal, extension, indulgence, alteration, substitution, exchange, change in,
modification or disposition of any of the Obligations or of any collateral or
security therefor, or of any guaranty thereof, or of any instrument or agreement
setting forth the terms and conditions pertaining to any of the foregoing.
(e) This Agreement shall be deemed to have been made in the State of
Texas and shall be governed by, and construed in accordance with, the laws of
the State of Texas, without giving effect to its conflicts of laws principals.
The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning of any provision hereof.
(f) This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterpart signature pages, each
constituting an original, but all together one and the same instrument.
In Witness Whereof, the parties have caused this Security and Pledge Agreement
to be duly executed and delivered as of the date and year first above written.
Pledgor:
CT HOLDINGS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Pledgor's Address:
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Secured Party:
XXXXXX X. XXXXXXX
_________________________________________
Xxxxxx X. Xxxxxxx
