Exhibit 10.1(f)
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, is entered into as of June 29, 2001, by and
between STAR CROSS, INC., a Delaware corporation with offices at 00 Xxxx 00xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 ("Debtor" or "Borrower"), and THCG, INC.,
a Delaware corporation with offices at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000 (the "Secured Party").
WHEREAS, Debtor wishes to obtain a loan from Secured Party and Secured
Party is willing to make such loan to Debtor; and
WHEREAS, Debtor will issue its secured promissory note or notes (the
"Notes") to the Secured Party pursuant to that certain loan agreement, by and
between the Debtor and Secured Party, of even date herewith (the "Loan
Agreement"). The Loan Agreement, this Agreement and other ancillary agreements
between Debtor and Secured Party of even date herewith are sometimes referred to
herein as the "Loan Documents"; and
WHEREAS, the Debtor has agreed to grant the Secured Party a security
interest in all of the assets of Debtor as more fully described on Schedule A
annexed hereto;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Grant of Security Interest. (a) To secure the payment when due (at
maturity, upon acceleration or otherwise) of principal and interest under the
Note and the payment and performance by the Debtor of all obligations,
liabilities and indebtedness of Debtor to the Secured Party pursuant to the Note
and the other Loan Documents, Debtor hereby grants, conveys and assigns to
Secured Party a security interest in all of the property and assets of Debtor,
whether real or personal, tangible or intangible, and whether now owned or
hereafter acquired, or in which it now has or at any time in the future may
acquire any right, title or interest, and all products and proceeds thereof, as
more fully described on Schedule A attached hereto (all of the same being
hereinafter called the "Collateral").
(b) The security interest granted herein given to secure
performance and payment of all obligations, liabilities and indebtedness of
Borrower to Secured Party of whatever kind and whenever or however created or
incurred, whether now existing or hereafter arising (hereinafter called the
"Obligations"), including, without limiting the generality of the foregoing, any
and all obligations and indebtedness arising under the Notes and the other Loan
Documents.
(c) Borrower and Secured Party agree that this Agreement creates,
and is intended to create, valid and continuing Liens upon the Collateral in
favor of Secured Party. Borrower represents, warrants and promises to Secured
Party that: (i) Borrower is the sole owner of each item of the Collateral upon
which it purports to xxxxx x Xxxx pursuant to this Agreement and the other Loan
Documents, and has good and marketable title thereto free and clear of any and
all Liens or claims of others; (ii) the security interests granted pursuant to
this Agreement, upon completion of the filings of UCC-1 financing statements
with the appropriate jurisdictions or upon the physical delivery to Secured
party of any securities constituting a part of the Collateral, will constitute
valid, perfected security interests in all of the Collateral in favor of
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the Secured Party as security for the prompt and complete payment and
performance of the Obligations, enforceable in accordance with the terms hereof
against any and all creditors of and purchasers from the Borrower (other than
purchasers of Inventory in the ordinary course of business) and such security
interests are prior to all other Liens on the Collateral in existence on the
date hereof ; and (iii) no effective security agreement, financing statement,
equivalent security or Lien instrument or continuation statement covering all or
any part of the Collateral is or will be on file or of record in any public
office. Borrower promises to defend the right, title and interest of Secured
Party in and to the Collateral against the claims and demands of all Persons
whomsoever, and shall take such actions, at Borrower's sole cost and expense,
including (x) the prompt delivery of all original Instruments, Chattel Paper and
certificated Stock owned by Borrower , (y) notification of Secured Party's
interest in Collateral at Secured Party's request, and (z) the institution of
litigation against third parties as shall be prudent in order to protect and
preserve Secured Party's interest in the Collateral. Borrower shall xxxx its
books and records pertaining to the Collateral to evidence the Loan Documents
and the Liens granted under the Loan Documents. All Chattel Paper shall be
marked with the following legend: "This writing and the obligations evidenced or
secured hereby are subject to the security interest of THCG, Inc."
2. Secured Party's Rights. (a) Secured Party may, (i) at any time in
Secured Party's own name or in the name of Borrower, communicate with account
debtors, parties to contracts, and obligors in respect of accounts, contracts,
instruments, chattel paper or other Collateral to verify, to Secured Party's
satisfaction, the existence, amount and terms of any such accounts, contracts,
instruments or chattel paper or other Collateral, and (ii) at any time and
without prior notice to Borrower, notify account debtors, parties to contracts,
and obligors in respect of chattel paper, instruments, or other Collateral that
the Collateral has been assigned to Secured Party and that payments shall be
made directly to Secured Party. Upon the request of Secured Party, Borrower
shall so notify such account debtors, parties to contracts, and obligors in
respect of instruments, chattel paper or other Collateral. Borrower hereby
constitutes Secured Party or Secured Party's designee as Borrower's attorney
with power to endorse such Borrower's name upon any notes, acceptance drafts,
money orders or other evidences of payment or Collateral.
(b) Borrower shall remain liable under each contract, instrument
and license to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, and Secured Party shall have no
obligation or liability whatsoever to any person under any contract, instrument
or license (between Borrower and any person other than Secured Party) by reason
of or arising out of the execution, delivery or performance of this Agreement,
and Secured Party shall not be required or obligated in any manner (i) to
perform or fulfill any of the obligations of Borrower, (ii) to make any payment
or inquiry, or (iii) to take any action of any kind to collect, compromise 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 under or
pursuant to any contract, instrument or license.
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(c) Borrower shall, with respect to each owned, leased or
controlled property, during normal business hours and upon reasonable advance
notice (unless a default shall have occurred and be continuing, in which event
no notice shall be required and Secured Party shall have access at any and all
times): (i) provide access to such property to Secured Party and any of its
officers, employees and agents, as frequently as Secured Party determines to be
appropriate; (ii) permit Secured Party and any of its officers, employees and
agents to inspect, audit and make extracts and copies (or take originals if
reasonably necessary) from Borrower's books and records; and (iii) permit
Secured Party to inspect, review, evaluate and make physical verifications and
appraisals of the Inventory and other Collateral in any manner and through any
medium that Secured Party considers advisable, and Borrower agrees to render to
Secured Party, at Borrower's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto.
(d) After the occurrence and during the continuance of a default,
Borrower at its own expense, shall cause the certified public accountant then
engaged by such Borrower to prepare and deliver to Secured Party at any time and
from time to time, promptly upon Secured Party's request, the following reports:
(i) a reconciliation of all accounts; (ii) an aging of all accounts; (iii) trial
balances; and (iv) test verifications of such accounts as Secured Party may
request. Secured Party shall be permitted to observe and consult with Borrower's
accountants in the performance of these tasks.
(e) The rights, powers and remedies of Secured Party hereunder
shall be in addition to all rights, powers and remedies given to Secured Party
by statute (including without limitation, the Uniform Commercial Code) or rule
of law and regardless of whether or not the Uniform Commercial Code is in effect
in the jurisdiction where such rights, powers and remedies are asserted.
3. Secured Party's Appointment as Attorney-in-fact. By its execution of
this Agreement, Borrower hereby grants Secured Party a Power of Attorney . The
power of attorney granted pursuant to this Power of Attorney and all powers
granted under any Loan Document are powers coupled with an interest and shall be
irrevocable until all of the Obligations are repaid in full. The powers
conferred on Secured Party under the Power of Attorney are solely to protect
Secured Party's interests in the Collateral and shall not impose any duty upon
it to exercise any such powers. Secured Party agrees not to exercise any power
or authority granted under the Power of Attorney unless an Event of Default has
occurred and is continuing. Borrower authorizes Secured Party to file any
financing or continuation statement without the signature of Borrower to the
extent permitted by applicable law.
4. Grant of License to Use Intellectual Property Collateral. Borrower
hereby grants to Secured Party an irrevocable, non-exclusive license
(exercisable upon the occurrence and during the continuance of an Event of
Default without payment of royalty or other compensation to Borrower) to use,
transfer, license or sublicense any intellectual property now owned, licensed
to, or hereafter acquired by Borrower, and wherever the same may be located,
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and including in such license access to all media in which any of the licensed
items may be recorded or stored and to all computer software and programs used
for the compilation or printout thereof, and represents, promises and agrees
that any such license or sublicense is not and will not be in conflict with the
contractual or commercial rights of any third person; provided, that such
license will terminate on the date all of the Obligations are repaid in full.
5. Representations Regarding Security. (a) Debtor represents, warrants
and agrees that, except for the security interests granted hereunder to Secured
Party:
(i) Borrower owns good and indefeasible title to the Collateral;
(ii) no security interest has been or will be granted by Borrower
with respect to any of the Collateral;
(iii) Borrower will not file or permit to be filed any other
financing statements or security instrument in respect of the Collateral in
contravention of (ii); and
(iv) the lien herein referred to as security for the Obligations, in
favor of Secured Party, is and shall be first, prior and superior to all other
liens on the Collateral.
(b) Borrower will execute and deliver such financing statements,
security agreements, collateral assignments, landlord waivers and other
documents as may be requested by the Secured Party from time to time to confirm,
perfect and preserve the security interest created hereby and to preserve the
priority of the security interest created hereby, and in addition, hereby
authorizes the Secured Party to execute on behalf of Borrower, deliver and file
such financing statements, security agreements and other documents without the
signature of Borrower, all at the expense of Borrower.
6. Representations, Warranties and Covenants. All representations,
warranties and covenants contained in the Loan Agreement are hereby incorporated
herein by reference as if such representations, warranties and covenants were
fully set forth herein.
7. Events Of Default.
At the option of Secured Party and without necessity of demand or
notice, all or any part of the Obligations shall immediately become due and
payable irrespective of any agreed maturity upon the happening of any of the
following events of default ("Events of Default"):
(a) A default in the payment of any amount under the Note, when
and as the same shall become due and payable.
(b) A default in the performance or a breach of any of the
covenants of the Borrower contained in the Loan Agreement and continuance of
such default or breach for a
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period of 30 days.
(c) A default or event of default which remains uncured following
any applicable cure period shall have occurred with respect to any Senior Debt
or Junior Unsecured Indebtedness.
(d) Any representation, warranty or certification made by the
Borrower pursuant to the Note, the Loan Agreement or any Loan Document, or in
any written statement provided pursuant hereto or thereto, shall prove to have
been false or misleading as of the date made or thereafter in any material
respect.
(e) A final judgment or judgments for the payment of money in
excess of $25,000 in the aggregate shall be rendered by one or more courts,
administrative or arbitral tribunals or other bodies having jurisdiction over
the Borrower or any Subsidiary unless the same shall be (i) fully covered by
insurance and the issuer(s) of the applicable policies shall have acknowledged
full coverage in writing within fifteen (15) days of judgment, or (ii)
discharged (or provision shall have been made for such discharge), stayed,
bonded, paid or discharged within a period of 30 days from the date of entry
thereof.
(f) There shall be commenced against Borrower any Litigation
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of an order for any such relief which remains unstayed or undismissed for
thirty (30) consecutive days; or Borrower shall have concealed, removed or
permitted to be concealed or removed, any part of its property with intent to
hinder, delay or defraud any of its creditors or made or suffered a transfer of
any of its property or the incurring of an obligation which may be fraudulent
under any bankruptcy, fraudulent transfer or other similar law.
(g) The entry of a decree or order by a court having jurisdiction
adjudging the Borrower or any Subsidiary bankrupt or insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Borrower or any Subsidiary, under federal bankruptcy law, as now
or hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, and the continuance of any such decree or order
unstayed and in effect for a period of 45 days; or the commencement by the
Borrower or any Subsidiary of a voluntary case under federal bankruptcy law, as
now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief under
federal bankruptcy law or any other applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Borrower or any Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Borrower or any Subsidiary in furtherance
of any such action.
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(h) A default under, cancellation of or other invalidity or termination
of the License Agreement by and between Xxxxxx & Co. Securities, Inc. and Holder
to be entered into by and between the parties hereto.
8. Remedies.
(a) Upon the occurrence of an Event of Default referred to in
Section 7(a), (f), (g) or (h), the Note shall become and be due and payable
immediately, without presentation, demand, protest or other formalities of any
kind, all of which are expressly waived by the Borrower. Upon the occurrence of
an Event of Default other than one referred to in Sections 7(a), (f), (g) or
*h), the Lender may declare, by written notice to the Borrower, all amounts due
under the Note to be due and payable immediately, and upon such declaration the
same shall become due and payable immediately, without presentation, demand,
protest or other formalities of any kind, all of which are expressly waived by
the Borrower.
(b) The Lender may institute such actions or proceedings in law
or equity as it shall deem expedient for the protection of its rights and may
prosecute and enforce its claims against all assets of the Borrower, and in
connection with any such action or proceeding shall be entitled to receive from
the Borrower payment of the principal amount of the Note plus accrued interest
to the date of payment plus reasonable expenses of collection, including,
without limitation, attorneys' fees and expenses.
(c) Without limiting the generality of the foregoing, Borrower
expressly agrees that upon the occurrence of any Event of Default, Lender may
collect, receive, assemble, process, appropriate and realize upon the
Collateral, or any part thereof, and may forthwith sell, lease, assign, give an
option or options to purchase or otherwise dispose of and deliver said
Collateral (or contract to do so), or any part thereof, in one or more parcels
at public or private sale or sales, at any exchange at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. Lender shall have the right upon any such public sale, to the
extent permitted by law, to purchase for the benefit of Lender the whole or any
part of said Collateral so sold, free of any right of equity of redemption,
which right Borrower hereby releases. Such sales may be adjourned or continued
from time to time with or without notice. Lender shall have the right to conduct
such sales on Borrower's premises or elsewhere and shall have the right to use
Borrower's premises without rent or other charge for such sales or other action
with respect to the Collateral for such time as Lender deems necessary or
advisable.
(d) Upon the occurrence and during the continuance of an Event of
Default and at Lender's request, Borrower further agrees to assemble the
Collateral and make it available to Lender at places which Lender shall
reasonably select, whether at its premises or elsewhere. Until Lender is able to
effect a sale, lease, or other disposition of the Collateral, Lender shall have
the right to complete, assemble, use or operate the Collateral or any part
thereof, to the extent that Lender deems appropriate, for the purpose of
preserving such Collateral or its value or for any other purpose. Lender shall
have no obligation to Borrower to maintain or preserve the rights of Borrower as
against third parties with respect to any Collateral while such Collateral is in
the possession of Lender. Lender may, if it so elects,
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seek the appointment of a receiver or keeper to take possession of any
Collateral and to enforce any of Lender's remedies with respect thereto without
prior notice or hearing. To the maximum extent permitted by applicable law,
Borrower waives all claims, damages and demands against Lender, its Affiliates,
agents, and the officers and employees of any of them arising out of the
repossession, retention or sale of any Collateral except such as are determined
in a final judgment by a court of competent jurisdiction to have arisen solely
out of the gross negligence or willful misconduct of such Person. Borrower
agrees that ten (10) days prior notice by Lender to Borrower of the time and
place of any public sale or of the time after which a private sale may take
place is reasonable notification of such matters. Borrower shall remain liable
for any deficiency if the proceeds of any sale or disposition of the Collateral
are insufficient to pay all amounts to which Lender is entitled.
(e) Lender's rights and remedies under this Agreement shall be
cumulative and nonexclusive of any other rights and remedies which Lender may
have under any Loan Document or at law or in equity. Recourse to the Collateral
shall not be required. All provisions of this Agreement are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited, to the extent necessary, so that they do not render this
Agreement invalid or unenforceable, in whole or in part.
9. Taxes and Charges. Debtor agrees to pay prior to delinquency, all
taxes, charges, liens and assessments, if any, against the Collateral, and upon
the failure of Debtor to do so, Secured Party at his option may pay any of them
and shall be the sole judge of the legality or validity thereof and the amount
necessary to discharge the same. Any such payment by Secured Party shall be
immediately due and payable by Debtor to Secured Party and shall become part of
the indebtedness evidenced by the Note.
10. Definition of Debtor. The term "Debtor" as used throughout this
Agreement shall include (a) the respective successors and assigns of Debtor; and
(b) any individual, association, trust, partnership, corporation, or other
entity to which all or substantially all of the business or assets of Debtor
shall have been transferred or with or into which Debtor shall have been merged,
consolidated, reorganized or absorbed.
11. Continuing Agreement. This is a continuing agreement and all the
rights, powers and remedies of Secured Party hereunder shall continue to exist
unless (a) all indebtedness shall have been paid in full, or (b) Secured Party,
upon request of Debtor, has executed a termination statement. Otherwise this
Agreement shall continue irrespective of the fact that any or all of the
Indebtedness may have become barred by any statute of limitations or that the
liability of Debtor may have ceased, and notwithstanding the death, incapacity
or bankruptcy of Debtor or any other event or proceeding affecting Debtor
12. MISCELLANEOUS.
(a) Complete Agreement; Modification of Agreement. This Agreement
and the other Loan Documents constitute the complete agreement between the
parties with respect to the subject matter hereof and thereof, supersede all
prior agreements, commitments, understandings or inducements (oral or written,
expressed or implied). No Loan Document may
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be modified, altered or amended except by a written agreement signed by Secured
Party and Borrower.
(b) No Waiver. Neither Secured Party's failure, at any time, to
require strict performance by Borrower of any provision of any Loan Document,
nor Secured Party's failure to exercise, nor any delay in exercising, any right,
power or privilege hereunder, shall operate as a waiver thereof or waive, affect
or diminish any right of Secured Party thereafter to demand strict compliance
and performance therewith. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. Any suspension or waiver of any
provision under the Loan Documents or a default hereunder shall not suspend,
waive or affect any other provision under any Loan Document or a default
hereunder, and shall not be construed as a bar to any right or remedy which
Secured Party would otherwise have had on any future occasion. None of the
undertakings, indemnities, agreements, warranties, covenants and representations
of Borrower to Secured Party contained in any Loan Document and no default by
Borrower under any Loan Document shall be deemed to have been suspended or
waived by Secured Party, unless such waiver or suspension is by an instrument in
writing signed by an officer or other authorized employee of Secured Party and
directed to Borrower specifying such suspension or waiver (and then such waiver
shall be effective only to the extent therein expressly set forth), and Secured
Party shall not, by any act (other than execution of a formal written waiver),
delay, omission or otherwise, be deemed to have waived any of its rights or
remedies hereunder.
(c) Severability; Section Titles. Wherever possible, each
provision of the Loan Documents shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of any Loan
Document shall be prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of such
Loan Document. The Section titles contained in any Loan Document are and shall
be without substantive meaning or content of any kind whatsoever and are not a
part of the agreement between the parties hereto.
(d) Authorized Signature. Until Secured Party shall be notified
in writing by Borrower to the contrary, the signature upon any document or
instrument delivered pursuant hereto and believed by Secured Party or any of
Secured Party's officers, agents, or employees to be that of an officer of
Borrower shall bind Borrower and be deemed to be the act of Borrower affixed
pursuant to and in accordance with resolutions duly adopted by Borrower's Board
of Directors, and Secured Party shall be entitled to assume the authority of
each signature and authority of the person whose signature it is or appears to
be unless the person acting in reliance thereon shall have actual knowledge to
the contrary.
(e) Notices. Except as otherwise provided herein, whenever any
notice, demand, request or other communication shall or may be given to or
served upon any party by any other party, or whenever any party desires to give
or serve upon any other party any communication with respect to this Agreement,
each such communication shall be in writing and shall be deemed to have been
validly served, given or delivered (a) upon the earlier of actual receipt and
three (3) days after deposit in the United States Mail, registered or certified
mail,
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return receipt requested, with proper postage prepaid, (b) upon transmission,
when sent by telecopy or other similar facsimile transmission (with such
telecopy or facsimile promptly confirmed by delivery of a copy by personal
delivery or United States Mail as otherwise provided in this Section 10(e), (c)
one (1) Business Day after deposit with a reputable overnight courier with all
charges prepaid or (d) when hand-delivered, all of which shall be addressed to
the party to be notified and sent to the address or facsimile number indicated
in Schedule B or to such other address (or facsimile number) as may be
substituted by notice given as herein provided. Failure or delay in delivering
copies of any such communication to any person (other than Borrower or Secured
Party) designated in Schedule B to receive copies shall in no way adversely
affect the effectiveness of communication.
(f) Counterparts. Any Loan Document may be executed in any number
of separate counterparts by one or more of the parties thereto, and all of said
counterparts taken together shall constitute one and the same instrument.
(g) Time of the Essence. Time is of the essence for performance
of the Obligations under the Loan Documents.
(H) GOVERNING LAW. THE LOAN DOCUMENTS AND THE OBLIGATIONS ARISING
UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS.
(i) SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. (A)
BORROWER HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN
THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO
HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN BORROWER AND SECURED PARTY
PERTAINING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS;
PROVIDED, THAT SECURED PARTY AND BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK; AND
FURTHER PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO
PRECLUDE SECURED PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR
ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF SECURED PARTY. BORROWER EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. BORROWER HEREBY
WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN
ANY SUCH
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ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER
PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE
ADDRESS SET FORTH IN SCHEDULE B OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL
BE DEEMED COMPLETED UPON THE EARLIER OF BORROWER?S ACTUAL RECEIPT THEREOF OR
THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.
(B) THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE BETWEEN SECURED PARTY AND BORROWER ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
(j) Capitalized terms not defined in this Agreement shall have
the meaning given such terms in the Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Security
Agreement on the date first above written.
STAR CROSS, INC.
(Corporate Seal)
By: /s/ Xxxxxxx Xxxx
----------------------------
THCG, INC.
By: /s/ Xxxxxx X. Xxxx
----------------------------
Xxxxxx X. Xxxx, CEO
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SCHEDULE A
Description of Collateral
All of Debtor's property and assets, including, without limitation, all
of the following property and assets in which it now has or at any time in the
future may acquire any right, title or interest: all accounts; all bank and
deposit accounts and all funds on deposit therein; all cash and cash
equivalents; all commodity contracts; all investments, stock and investment
property, including all of the capital stock of Xxxxxx & Co., Securities, Inc.;
all inventory and equipment; all goods; all chattel paper, documents and
instruments; all books and records; all general intangibles; and to the extent
not otherwise included, all proceeds and products of all and any of the
foregoing and all collateral security and guarantees given by any person with
respect to any of the foregoing, but excluding in all events hazardous waste
(all of the foregoing, together with any other collateral pledged to the Secured
Party pursuant to this Agreement or any other Loan Document, collectively, the
"Collateral").
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SCHEDULE B
NOTICES
All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand or
overnight courier, if telecopied or if mailed, certified or registered mail,
with first-class postage paid, in each case addressed as follows:
if to Debtor, to: Xxxxxx Xxxx
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx XxXxxxxxxx, Esq.
Telecopy No.:(000) 000-0000
if to THCG, to: Xxxxxx Xxxx
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxx & Xxxxxxxxxx, LLP
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
Attn: H. Xxxxx Xxxxxxx, Xx., Esq.
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