Security Agreement - Markland Technologies Inc. and Bay View Capital LLC
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT is made as of the ____ day of September, 2003,
by and between MARKLAND TECHNOLOGIES, INC., A FLORIDA CORPORATION ("Debtor");
and BAY VIEW CAPITAL L.L.C., A RHODE ISLAND LIMITED LIABILITY COMPANY ("Secured
Party").
WITNESSETH:
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WHEREAS, Debtor and Security Technology, Inc., a Delaware corporation
("Security", Debtor and Security are hereinafter sometimes referred to
collectively as the "Borrowers"), have executed and delivered to Secured Party a
Loan Agreement of even date herewith (as the same may be amended, extended or
restated from time to time, the "Loan Agreement"); and
WHEREAS, pursuant to the Loan Agreement, Borrowers executed and
delivered to Secured Party a Promissory Note of even date herewith made payable
to Secured Party by Borrowers, jointly and severally, in the original principal
amount of up to One Million Four Hundred Thousand and 00/100 ($1,400,000.00)
Dollars (as the same may be amended, extended, renewed or restated from time to
time, the "Note"); and
WHEREAS, Debtor has agreed to enter into this Security Agreement in
order to induce Secured Party, INTER ALIA, to make the loan evidenced by the
Note;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. THE SECURITY INTERESTS.
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(a) In order (i) to secure the due and punctual payment of the Note;
(ii) to secure the due and punctual payment and performance of all obligations
of Debtor contained herein; (iii) to secure the due and punctual payment and
performance of all indebtedness, obligations and liabilities of Debtor contained
in the Loan Agreement and in all other agreements executed or delivered by
Debtor in connection with or as contemplated by the Loan Agreement; and (iv) to
secure the due and punctual payment and performance of all other indebtedness,
liabilities and obligations of Debtor to Secured Party of every kind and
description, whether direct, indirect or contingent, whether now existing or
hereafter arising or incurred, whether due or to become due, whether otherwise
secured or unsecured and howsoever evidenced, incurred or arising, including,
without limitation, all indebtedness, liabilities and obligations evidenced or
arising pursuant to any promissory note, loan agreement, equipment lease,
conditional sales agreement, consignment agreement, guaranty, overdraft,
bankers' acceptance, forward contract, foreign exchange contract, letter of
credit reimbursement agreement or any other agreement or instrument which may at
any time be executed or issued for Debtor's account or to which Debtor is now or
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hereafter may become a party (all of the foregoing are hereinafter collectively
called the "Obligations"), Debtor hereby grants to Secured Party a continuing
security interest in the following described fixtures and personal property,
whether now existing or hereafter arising (hereinafter collectively called the
"Collateral"):
All fixtures and all tangible and intangible personal property of
Debtor of every kind and description and wherever located, in each case whether
now owned or hereafter acquired by Debtor, or in which Debtor may now have or
hereafter acquire an interest, including, without limitation:
(1) all equipment (as such term is defined in the Uniform
Commercial Code [the "UCC"]), machinery and fixtures, including,
without limitation, all processing and manufacturing equipment, machine
tools, data processing and computer equipment, furniture, tools, dies,
molds, motor vehicles, rolling stock, trailers, airplanes, vessels and
other equipment of every kind and description, in each case whether now
owned or hereafter acquired by Debtor, or in which Debtor may now have
or hereafter acquire an interest;
(2) all inventory (as such term is defined in the UCC),
including without limitation, all merchandise, raw materials, work in
process, parts, components, dies, molds, finished goods, supplies and
all goods returned to or repossessed by Debtor, in each case whether
now owned or hereafter acquired by Debtor, or in which Debtor may now
have or hereafter acquire an interest;
(3) all accounts (as such term is defined in the UCC),
accounts receivable, other receivables, evidences of indebtedness,
notes, drafts, acceptances, contract rights, leases, chattel paper and
electronic chattel paper (as such terms are defined in the UCC),
commercial tort claims (as such term is defined in the UCC), and
general intangibles (as such term is defined in the UCC), including,
without limitation, all collateral and security therefor and all
supporting obligations (as such term is defined in the UCC) of every
kind and description (including, without limitation, all guarantees,
letters of credit, letter-of-credit rights (as such term is defined in
the UCC), liens and security interests in favor of Debtor), and all
goodwill, going concern value, patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and
servicemarks, customer lists, advertising materials, operating manuals,
copyrights, blueprints, designs, engineering drawings and contracts,
proprietary information, product lines, distribution agreements, dealer
contracts, supplier contracts, tax refund claims, licenses, research
and development, and all rights to the payment of money, in each case
whether now owned or hereafter acquired by Debtor, or in which Debtor
may now have or hereafter acquire an interest;
(4) all instruments (as such term is defined in the UCC),
documents of title, policies and certificates of insurance, securities
(as such term is defined in the UCC), securities entitlements (as such
term is defined in the UCC), investment property (as such term is
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defined in the UCC), partnership interests, membership interests in
limited liability companies, bank deposits, deposit accounts (as such
term is defined in the UCC), checking accounts, certificates of deposit
and cash, in each case whether now owned or hereafter acquired by
Debtor, or in which Debtor may now have or hereafter acquire an
interest;
(5) all accessions, additions and improvements to, and all
proceeds and products of, all of the foregoing, including proceeds of
insurance, whether now owned or hereafter acquired by Debtor, or in
which Debtor may now have or hereafter acquire an interest; and
(6) all books, records, documents, computer tapes and discs
relating to all of the foregoing, whether now owned or hereafter
acquired by Debtor, or in which Debtor may now have or hereafter
acquire an interest.
(b) All of Debtor's accounts, accounts receivable, contract rights,
chattel paper, general intangibles and rights to the payment of money, and all
collateral and security therefor and related supporting obligations, and all
proceeds thereof, are sometimes hereinafter collectively called the "Customer
Receivables". All of Debtor's equipment, fixtures and inventory are sometimes
hereinafter collectively called the "Tangible Collateral".
(c) The security interests granted pursuant to this SECTION 1 (the
"Security Interests") are granted as security only and shall not subject Secured
Party to, or transfer to Secured Party, or in any way affect or modify, any
obligation or liability of Debtor under any of the Collateral or any transaction
which gave rise thereto.
(d) If Debtor shall at any time acquire a commercial tort claim, as
defined in Article 9 of the UCC, Debtor shall immediately notify Secured Party
in writing of the brief details thereof and shall grant to Secured Party in
writing a security interest therein and in the proceeds thereof, all on the
terms of this Security Agreement, and in writing in form and substance
satisfactory to Secured Party.
(e) For avoidance of doubt it is expressly understood and agreed that
(i) the Collateral is intended to consist of all assets of Debtor, and (ii) to
the extent the UCC is revised subsequent to the date hereof such that the
definition of any of the foregoing terms included in the description of
Collateral is changed, the parties agree that any property which is included in
such changed definitions which would not otherwise be included in the foregoing
grant on the date hereof be included in such grant immediately upon the
effective date of such revision, it being the intention of the parties hereto
that the description of Collateral set forth herein be construed to include the
broadest possible range of property and assets and all tangible and intangible
personal property and fixtures of Debtor of every kind and description.
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SECTION 2. DELIVERY OF PLEDGED SECURITIES AND CHATTEL PAPER.
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(a) All securities of Debtor, whether now owned or hereafter acquired
by Debtor, shall be promptly delivered to Secured Party by Debtor pursuant
hereto (which securities, together with all other securities, securities
entitlements, and shares of stock which may hereafter be delivered to Secured
Party pursuant to the terms hereof, are hereinafter called the "Pledged
Securities"), shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignments in blank,
with signatures appropriately guaranteed, and accompanied in each case by any
required transfer tax stamps, all in form and substance satisfactory to Secured
Party. EXHIBIT A attached hereto and made a part hereof sets forth a complete
description of all Pledged Securities owned by Debtor on the date hereof. Debtor
shall from time to time promptly and in accordance with the foregoing provisions
deliver to Secured Party any and all Pledged Securities which may hereafter be
acquired by Debtor.
(b) Secured Party may at any time or from time to time, in its sole
discretion, require Debtor to cause any chattel paper included in the Customer
Receivables to be delivered to Secured Party or any agent or representative
designated by it, or to cause a legend referring to the Security Interests to be
placed on such chattel paper and upon any ledgers or other records concerning
the Customer Receivables.
SECTION 3. FILING; FURTHER ASSURANCES.
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Debtor will, at its expense, execute, deliver, file and record (in such
manner and form as Secured Party may require), or permit Secured Party to file
and record, any financing statements, any carbon, photographic or other
reproduction of a financing statement or this Security Agreement (which the
parties hereto agree shall be sufficient as a financing statement hereunder),
any specific assignments or other paper that may be reasonably necessary or
desirable, or that Secured Party may request, in order to create, confirm,
preserve, perfect or validate any Security Interest or to enable Secured Party
to exercise and enforce its rights and remedies hereunder or under applicable
law with respect to any of the Collateral. Debtor hereby authorizes Secured
Party, at any time and from time to time, without the Debtor's further signature
or authorization, to file financing statements, continuation statements and
amendments thereto that describe or indicate the Collateral including, without
limitation, an indication that the Collateral consists of "all assets" of the
Debtor or words of similar effect and which contain any other information
required by Part 5 of Article 9 of the UCC for the sufficiency or filing office
acceptance of any financing statement, continuation statement or amendment,
including whether Debtor is an organization, the type of organization and any
organization identification number issued to Debtor. Debtor agrees to furnish
any such information to Secured Party promptly upon request.
SECTION 4. DEBTOR'S REPRESENTATIONS AND WARRANTIES.
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Debtor hereby represents and warrants to Secured Party as follows:
(a) Except as described in EXHIBIT B attached hereto and made
a part hereof, Debtor is, or to the extent that certain of the
Collateral is to be acquired after the date hereof, will be, the owner
of the Collateral free from any adverse lien, security interest or
encumbrance.
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(b) Except for such financing statements as may be described
in EXHIBIT B attached hereto and made a part hereof, no financing
statement covering the Collateral is on file in any public office,
other than the financing statements filed pursuant to this Security
Agreement.
(c) All additional information, representations and warranties
contained in EXHIBIT C attached hereto and made a part hereof, and any
Schedules attached to said EXHIBIT C, are true, accurate and complete
on the date hereof.
(d) There are no restrictions upon the voting rights or the
transfer of all or any of the Pledged Securities (other than may appear
on the face of the certificate thereof) and Debtor has the right to
vote, pledge, grant a security interest in, and otherwise transfer the
Pledged Securities free of any encumbrances (other than applicable
restrictions imposed by Federal or state securities laws or
regulations).
(e) EXHIBIT D attached hereto constitutes an accurate and
complete list of all patents, trademarks, tradenames, patent
applications, servicemarks and registrations of the foregoing owned by
or held by Debtor.
SECTION 5. DEBTOR'S COVENANTS.
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Debtor hereby covenants and agrees with Secured Party that Debtor will:
(a) Defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein.
(b) Provide Secured Party, at least fifteen (15) business days
prior to occurrence, with written notice of (i) any change in Debtor's
chief executive office or the office where Debtor maintains its books
and records pertaining to the Customer Receivables, (ii) the movement
or location of Collateral to or at any address other than as set forth
in said EXHIBIT C, and (iii) any event or occurrence which would render
any warranty or information contained in EXHIBIT C OR D hereto
inaccurate or incomplete.
(c) Immediately notify Secured Party of any event causing a
substantial loss or diminution in the value of all or any material part
of the Collateral and the amount or an estimate of the amount of such
loss or diminution.
(d) Not sell or offer to sell or otherwise assign, transfer,
encumber, grant a security interest in, or dispose of the Collateral or
any interest therein, without Secured Party's prior written consent;
PROVIDED, HOWEVER, that Debtor may sell finished goods inventory, if
any, in the ordinary course of its business.
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(e) Except as otherwise permitted by the Loan Agreement, keep
the Collateral free from any adverse lien, security interest or
encumbrance and in good order and repair, reasonable wear and tear
excepted, and not waste or destroy the Collateral or any part thereof.
(f) Not use the Collateral in violation of applicable law or
of any policy of insurance applicable thereto.
(g) Not change its corporate name, identity, structure or
state of organization or formation without Secured Party's prior
written consent.
(h) At Secured Party's request, execute, acknowledge and
deliver such further documents and instruments as Secured Party may
from time to time reasonably request or require to confirm Secured
Party's Security Interests in and to any patent, trademark or service
mark, and any registrations or applications for same.
(i) Promptly pay any and all taxes, assessments and
governmental charges upon the Collateral prior to the date penalties
are attached thereto, except to the extent that such taxes, assessments
and charges shall be contested in good faith by Debtor, adequate
reserves have been set aside therefor, and payment of such contested
taxes made prior to the institution of any enforcement proceeding which
could adversely affect the Security Interests or the Collateral.
(j) Have and maintain insurance at all times with respect to
the Tangible Collateral against risks of fire (including so-called
extended coverage) and theft, and such other risks as Secured Party may
reasonably require in writing, containing such terms, in such form, in
such amounts, for such periods, and written by such companies as may be
reasonably satisfactory to Secured Party, such insurance to name
Secured Party as "additional insured" and "loss payee" thereunder and
to be payable to Secured Party and Debtor as their respective interests
may appear pursuant to Loss Payable Endorsements in form acceptable to
Secured Party. All policies of insurance shall provide for thirty (30)
days' prior written notice to Secured Party of cancellation or material
amendment of the policies, and Debtor shall furnish Secured Party with
certificates or other evidence satisfactory to Secured Party of
compliance with the foregoing insurance provisions. Debtor shall notify
Secured Party of any material change in the insurance maintained with
respect to the Tangible Collateral and shall furnish Secured Party
satisfactory evidence of any such change. Without limiting any other
remedies available to Secured Party, in the event Debtor shall default
in the performance of its obligations under this paragraph (j), Secured
Party, at its option, may effect such insurance coverage with an
insurer acceptable to Secured Party and add the premium(s) paid
therefor to the Obligations secured hereby, and the amount of such
premium(s) shall be payable by Debtor on demand with interest thereon
at the highest rate payable under the agreements evidencing the
Obligations.
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(k) Take such steps as the Secured Party may reasonably
request for Secured Party (i) to obtain an acknowledgement, in form and
substance satisfactory to Secured Party, of any bailee having
possession of any of the Collateral that the bailee holds such
Collateral for Secured Party, (ii) to obtain "control" of any
investment property, deposit accounts, letter-of-credit rights or
electronic chattel paper (as such terms are defined in Article 9 of the
UCC) with any agreements establishing control to be in form and
substance satisfactory to Secured Party, and (iii) otherwise to insure
the continued perfection and priority of Secured Party's security
interest in the Collateral and of the preservation of its rights
therein.
(l) Debtor shall perform all acts and execute all documents,
including, without limitation, assignments for security in form
suitable for filing with the United States Patent and Trademark Office
and the United States Copyright Office and in any other jurisdiction
where any of the patents, applications for patents, trademarks, trade
names, service marks, registrations of trademarks and service marks,
copyrights, other proprietary information and designs are registered,
requested by Secured Party at any time to evidence, perfect and
maintain the security interest in the Collateral granted hereunder and,
to the extent permitted by law, Debtor hereby authorizes Secured Party
to execute and file one or more financing statements (and similar
documents) or copies thereof or of this Agreement with respect to the
Collateral.
(m) Except to the extent that Secured Party shall consent,
Debtor (either itself or through licensees) shall maintain all of the
patents, applications for patents, trademarks, trade names, service
marks, registrations of trademarks and service marks, copyrights, other
proprietary information and designs in full force and effect in the
jurisdictions in which the any of the patents, applications for
patents, trademarks, trade names, service marks, registrations of
trademarks and service marks, copyrights, other proprietary information
and designs are currently in effect, free from any claim of abandonment
for non-use and Debtor shall not (and shall not permit any licensee
thereof to) do any act or knowingly omit to do any act whereby any of
the patents, applications for patents, trademarks, trade names, service
marks, registrations of trademarks and service marks, copyrights, other
proprietary information and designs may or shall become invalidated.
(n) In no event shall Debtor, either itself or through any
agent, employee, licensee or designee, file an application for the
registration of any of the patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and
service marks, copyrights, other proprietary information and designs
covered hereby with the United States Patent and Trademark Office or in
any other jurisdiction, file an application for the registration of any
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of the copyrights covered hereby with the United States Copyright
Office or in any other jurisdiction, or grant or assign to any party a
license to use any of the patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and
service marks, copyrights, other proprietary information and designs,
unless it first informs Secured Party, and, upon request of Secured
Party, executes and delivers any and all assignments, agreements,
instruments, documents and papers as Secured Party requests to evidence
Secured Party's interest in the patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and
service marks, copyrights, other proprietary information and designs
and the goodwill relating thereto or represented thereby and, to the
extent permitted by law, Debtor hereby constitutes Secured Party its
attorney-in-fact to execute and file all such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power being coupled with an interest is irrevocable
until the Obligations are paid in full.
(o) Debtor shall take all steps necessary in any proceeding
before the United States Patent and Trademark Office, the United States
Copyright Office or any similar office, to maintain each application
and registration of any of the patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and
service marks, copyrights, other proprietary information and designs in
Debtor's name, including, without limitation, filing of renewals,
affidavits of use, affidavits of incontestability and opposition,
interference and cancellation proceedings.
(p) Debtor shall use consistent standards of quality in its
manufacture of products sold under any of the patents, applications for
patents, trademarks, trade names, service marks, registrations of
trademarks and service marks, copyrights, other proprietary information
and designs.
SECTION 6. RECORDS RELATING TO COLLATERAL.
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Debtor will keep its records concerning the Collateral, including the
Customer Receivables and all chattel paper included in the Customer Receivables,
at its offices at ________________________________________________________, or
at such other place or places of business as Secured Party may approve in
writing. Debtor will hold and preserve such records and chattel paper and will
permit Secured Party's representatives at any time during normal business hours
to examine and inspect the Collateral and to make abstracts from such records
and chattel paper, and will furnish to Secured Party such information and
reports regarding the Collateral as Secured Party may from time to time
reasonably request.
SECTION 7. COLLECTIONS WITH RESPECT TO CUSTOMER RECEIVABLES.
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Debtor will, at its expense, and subject at all times to Secured
Party's right to give reasonable directions and instructions:
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(i) endeavor to collect or cause to be collected from
customers indebted on Customer Receivables, as and when due, any and
all amounts, including interest, owing under or on account of each
Customer Receivable; and
(ii) take or cause to be taken such appropriate action to
repossess goods, the sale or rental of which gave rise to any Customer
Receivable, and to enforce any rights or liens under Customer
Receivables, in the name of Debtor or Secured Party, as Secured Party
may deem proper;
PROVIDED, HOWEVER, that (a) Debtor will at all times use its best judgment to
protect the interests of Secured Party, and (b) Debtor shall not be required
under this SECTION 7 to take any action which would be contrary to any
applicable law, court order or standard practice in Debtor's industry. Debtor
shall, at Secured Party's request following the occurrence of an Event of
Default, notify Debtor's account debtors of the Security Interests in the
Customer Receivables and Secured Party may itself at any such time so notify
account debtors. Secured Party shall have full power at any time after such
notice to collect, compromise, endorse, sell or otherwise deal with any or all
outstanding Customer Receivables or the proceeds thereof in the name of either
Secured Party or Debtor, as Secured Party shall determine. In the event that,
after notice to any account debtors to pay Secured Party, Debtor receives any
payment on a Customer Receivable, all such payments shall be held by Debtor in
trust for Secured Party and immediately turned over to Secured Party.
SECTION 8. RECORD OWNERSHIP OF PLEDGED SECURITIES.
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Upon the occurrence of an Event of Default, Secured Party may cause any
or all of the Pledged Securities to be transferred of record into Secured
Party's name. Debtor will promptly give to Secured Party copies of any notices
or other communications received by Debtor with respect to Pledged Securities
registered in the name of Debtor and Secured Party will promptly give to Debtor
copies of any notices and communications received by Secured Party with respect
to Pledged Securities registered in the name of Secured Party.
SECTION 9. RIGHT TO RECEIVE DISTRIBUTIONS ON PLEDGED SECURITIES.
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Unless an Event of Default shall have occurred, Debtor shall be
entitled, from time to time, to collect and receive for its own use all
dividends, interest and other payments and distributions made upon or with
respect to the Pledged Securities, except
(i) stock dividends,
(ii) dividends payable in securities or other property, and
cash dividends (unless otherwise provided in the Loan Agreement),
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(iii) dividends or distributions on dissolution, or on partial
or total liquidation, or in connection with a reduction of capital,
capital surplus or paid-in surplus, and
(iv) other securities issued with respect to or in lieu of the
Pledged Securities (whether upon conversion of the convertible
securities included therein or through stock split, spin-off,
split-off, reclassification, merger, consolidation, sale of assets,
combination of shares or otherwise).
Secured Party shall have the right to receive and retain all dividends, interest
and other payments and distributions made upon or with respect to the Pledged
Securities, except those which Debtor is specifically authorized to receive as
provided above, and Debtor shall take all such action as may be necessary or
appropriate to give effect to such right. From time to time upon receiving a
written request from Debtor accompanied by a certificate signed by its principal
financial officer stating that no Event of Default has occurred and is
continuing, Secured Party shall deliver to Debtor suitable assignments and
orders for the payment to Debtor or upon its order of all dividends, interest
and other payments and distributions to which Debtor is entitled as set forth
herein, upon or with respect to any Pledged Securities which are registered in
Secured Party's name.
SECTION 10. RIGHT TO VOTE PLEDGED SECURITIES.
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Unless an Event of Default shall have occurred, Debtor shall have the
right, from time to time, to vote and to give consents, ratifications and
waivers with respect to the Pledged Securities and to exercise conversion rights
with respect to the convertible securities included therein, and Secured Party
shall, upon receiving a written request from Debtor accompanied by a certificate
signed by its principal financial officer stating that no Event of Default has
occurred and is continuing, deliver to Debtor or as specified in such request
such proxies, powers of attorney, consents, ratifications and waivers as Secured
Party shall approve in respect of any Pledged Securities which are registered in
Secured Party's name, and make such arrangements with respect to the conversion
of convertible securities as shall be specified in Debtor's request and be in
form and substance satisfactory to Secured Party.
If an Event of Default shall have occurred, and provided Secured Party
elects to exercise the rights hereinafter set forth by notice to Debtor of such
election, Secured Party shall have the right to the extent permitted by law, and
Debtor shall take all such action as may be necessary or appropriate to give
effect to such right, to vote and to give consents, ratifications and waivers
and take any other action with respect to all the Pledged Securities with the
same force and effect as if Secured Party were the absolute and sole owner
thereof. The curing of any such Event of Default shall not divest Secured Party
of its rights under SECTIONS 8, 9, 10 and 11 hereof unless and until Secured
Party in writing reinstates the rights of Debtor which existed prior to the
occurrence of the Event of Default.
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SECTION 11. GENERAL AUTHORITY.
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Debtor hereby irrevocably appoints Secured Party Debtor's true and
lawful attorney, with full power of substitution, in the name of Debtor, Secured
Party or otherwise, for the sole use and benefit of Secured Party, but at
Debtor's expense, to the extent permitted by law to exercise, at any time and
from time to time after any Event of Default has occurred, all or any of the
following powers with respect to all or any of the Collateral (which power shall
be in addition and supplemental to any powers, rights and remedies of Secured
Party described herein or otherwise available to Secured Party under applicable
law):
(i) to demand, sue for, collect, receive and give acquittance
for any and all moneys due or to become due upon or by virtue thereof,
(ii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts, documents and other negotiable and
non-negotiable instruments and chattel paper taken or received by
Secured Party in connection therewith,
(iii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(iv) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof or any related goods
securing the Customer Receivables, as fully and effectually as if
Secured Party were the absolute owner thereof,
(v) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto, and
(vi) to discharge any taxes, liens, security interests or
other encumbrances at any time placed thereon.
The power conferred on Secured Party under this SECTION 11 is solely to
protect, realize upon and enforce Secured Party's Security Interests and rights
and remedies in respect to the Collateral and shall not impose any duty upon
Secured Party to exercise such power.
SECTION 12. EVENTS OF DEFAULT.
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Debtor shall be in default under this Security Agreement upon the
occurrence of any one or more of the following events (each such event is herein
referred to as an "Event of Default"):
(a) default by Debtor in the payment, observance or
performance of any obligation, covenant or agreement herein contained,
or breach by Debtor of any representation or warranty herein contained;
or
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(b) the occurrence of any "Event of Default" as defined in the
Loan Agreement, or in any agreement now or hereafter securing the Note,
or in any agreement now or hereafter evidencing or securing any of the
Obligations.
SECTION 13. REMEDIES UPON EVENT OF DEFAULT.
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(a) If any Event of Default shall have occurred, Secured Party may
exercise all the rights and remedies of a secured party under the UCC (whether
or not the UCC is in effect in the jurisdiction where such rights and remedies
are exercised) and, in addition, Secured Party may, without being required to
give any notice, except as herein provided or as may be required by mandatory
provisions of law, (i) apply the cash, if any, then held by it as Collateral in
the manner specified in SECTION 15 hereof, and (ii) if there shall be no such
cash or if such cash shall be insufficient to pay all the Obligations in full,
sell the Collateral, or any part thereof, at public or private sale or at any
broker's board or on any securities exchange, for cash, upon credit or for
future delivery, and at such price as Secured Party may deem satisfactory.
(b) Secured Party may require Debtor to assemble all or any part of the
Collateral and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient. Any holder of an Obligation may be
the purchaser of any or all of the Collateral so sold at any public sale (and,
if the Collateral is of a type customarily sold in a recognized market or is of
a type which is the subject of widely distributed standard price quotations, at
any private sale) and thereafter hold the same absolutely, free from any right
or claim of whatsoever kind. Upon any such sale Secured Party shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold. Each purchaser at any such sale shall hold the Collateral so sold
absolutely, free from any claim or right of whatsoever kind, including any
equity or right of redemption of Debtor.
(c) Unless the Collateral to be sold is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Secured Party shall give Debtor at least twenty (20) days' prior written
notice of its intention to make any such public or private sale or sale at a
broker's board or on a securities exchange. Such notice, in case of a public
sale, shall state the time and place fixed for such sale, and in case of sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or the
portion thereof so being sold, will first be offered for sale at such board or
exchange. Such notice, in case of a private sale or disposition, shall state the
time after which any private sale or other intended disposition is to be made.
(d) Any such public sale shall be held at such time or times within
ordinary business hours and at public or private place or places as Secured
Party may fix in the notice of such sale. At any public or private sale, the
Collateral may be sold in one lot as an entirety or in separate parcels, as
Secured Party may determine. Secured Party shall not be obligated to make such
sale pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
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<PAGE>
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but Secured Party
shall not incur any liability in case of the failure of such purchaser to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may again be sold upon like notice.
(e) Debtor acknowledges that Secured Party may be unable to effect a
public sale of Pledged Securities by reason of prohibitions contained in
applicable state and federal securities laws, and agrees that Secured Party is
authorized, at any such sale, if it deems it advisable so to do, to restrict the
prospective bidders or purchasers of any of the Pledged Securities to persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or sale of any of such
Pledged Securities. Debtor agrees that any private sale of Pledged Securities
may be at prices and on terms less favorable than if sold at public sales, and
Debtor agrees that such private sales shall not by reason thereof be deemed to
have been made in a commercially unreasonable manner. Secured Party shall have
no obligation to delay any sale of Pledged Securities for the period of time
necessary to permit the issuer of such Pledged Securities to register such
securities for public sale under applicable securities laws, even if such issuer
would agree to do so.
(f) Secured Party, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
(g) Secured Party, and any officer or agent of Secured Party is hereby
constituted and appointed as true and lawful attorney-in-fact of Debtor with
power: (i) to license, whether general, special or otherwise, and whether on an
exclusive or non-exclusive basis, subject to any existing licenses, any of the
patents, applications for patents, trademarks, trade names, service marks,
registrations of trademarks and service marks, copyrights, other proprietary
information and designs, for such term or terms, on such conditions, and in such
manner, as Secured Party shall in its sole discretion determine; (ii) to enforce
(and shall have the exclusive right to enforce) against any licensee or
sublicensee all rights and remedies of Debtor in, to and under any one or more
licenses of any of the patents, applications for patents, trademarks, trade
names, service marks, registrations of trademarks and service marks, copyrights,
other proprietary information and designs, and take or refrain from taking any
action under any thereof, and Debtor hereby releases Secured Party from, and
agrees to hold Secured Party free and harmless from and against any claims
arising out of, any action taken or omitted to be taken with respect to any such
licenses except for Secured Party's own gross negligence or willful misconduct;
(iii) to execute and deliver on behalf of Debtor, one or more instruments of
assignment of any of the patents, applications for patents, trademarks, trade
names, service marks, registrations of trademarks and service marks, copyrights,
13
<PAGE>
other proprietary information and designs, in form suitable for filing,
recording or registration in the United States Patent and Trademark Office, the
United States Copyright Office or in any other jurisdiction; (iv) to bring suit
and/or otherwise to pursue any claims that Debtor may have against any third
party for infringement of any of the patents, applications for patents,
trademarks, trade names, service marks, registrations of trademarks and service
marks, copyrights, other proprietary information and designs.
(h) All rights and remedies contained herein shall be separate and
cumulative and in addition to all other rights and remedies available to a
secured party under applicable law, and the exercise of one shall not in any way
limit or prejudice the exercise of any other such rights or remedies.
SECTION 14. RIGHT OF SECURED PARTY TO USE AND OPERATE TANGIBLE
---------- ---------------------------------------------------
COLLATERAL, ETC.
----------------
Upon the occurrence of an Event of Default, to the extent permitted by
law, Secured Party shall have the right and power to take possession of all or
any part of the Tangible Collateral, and to exclude Debtor and all persons
claiming under Debtor wholly or partly therefrom, and thereafter to hold, store,
and/or use, operate, manage and control the same. Upon any such taking of
possession, Secured Party may, from time to time, at Debtor's expense, make all
such repairs, replacements, alterations,, additions and improvements to and of
the Tangible Collateral as Secured Party may deem proper. In such case, Secured
Party shall have the right to manage and control the Tangible Collateral and to
carry on the business and to exercise all rights and powers of Debtor in respect
thereto as Secured Party shall deem best, including the right to enter into any
and all such agreements with respect to the leasing and/or operation of the
Tangible Collateral or any part thereof as Secured Party may deem fit; and
Secured Party shall be entitled to collect and receive all rents, issues,
profits, fees, revenues and other income of the same and every part thereof.
Such rents, issues, profits, fees, revenues and other income shall be applied to
pay the expenses of holding and operating the Tangible Collateral and of
conducting the business thereof, and of all maintenance, repairs, replacements,
alterations, additions and improvements, and to make all payments which Secured
Party may be required or may elect to make, if any, for taxes, assessments,
insurance and other charges upon the Tangible Collateral or any part thereof,
and all other payments which Secured Party may be required or authorized to make
under any provision of this Security Agreement (including legal costs and
attorney's fees). The remainder of such rents, issues, profits, fees, revenues
and other income shall be applied to the payment of the Obligations in such
order or priority as Secured Party shall determine (subject to the provisions of
SECTION 15 hereof) and, unless otherwise provided by law or by a court of
competent jurisdiction, any surplus shall be paid over to Debtor.
SECTION 15. APPLICATION OF COLLATERAL AND PROCEEDS.
----------- ---------------------------------------
The proceeds of any sale of, or other realization upon, all or any part
of the Collateral shall be applied in the following order of priorities:
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<PAGE>
(a) first, to pay the expenses of such sale or other
realization, including reasonable commission to Secured Party's agent,
and all expenses, liabilities and advances incurred or made by Secured
Party in connection therewith, and any other unreimbursed expenses for
which Secured Party is to be reimbursed pursuant to SECTION 16 hereof;
(b) second, to the payment of the Obligations in such order
and manner as Secured Party, in its sole discretion, shall determine;
and
(c) finally, unless applicable law otherwise provides, to pay
to Debtor, or its successors or assigns, or as a court of competent
jurisdiction may direct, any surplus then remaining from such proceeds.
SECTION 16. EXPENSES; SECURED PARTY'S LIEN.
----------- -------------------------------
Debtor will forthwith upon demand pay to Secured Party:
(a) the amount of any taxes which Secured Party may at any
time be required to pay by reason of the Security Interests (including
any applicable transfer taxes and taxes payable in connection with the
filing of financing statements to perfect the Security Interests) or to
free any of the Collateral from any lien thereon, and
(b) the amount of any and all reasonable out-of-pocket
expenses, including reasonable attorneys' fees and the reasonable fees
and disbursements of any agents not regularly in its employ, which
Secured Party may incur in connection with (i) the preparation and
administration of this Security Agreement, (ii) the collection, sale or
other disposition of any of the Collateral, (iii) the exercise by
Secured Party of any of the powers, rights or remedies conferred upon
it hereunder, or (iv) any default on Debtor's part hereunder.
SECTION 17. TERMINATION OF SECURITY INTERESTS; RELEASE OF COLLATERAL.
---------- --------------------------------------------------------
Upon the repayment and performance in full of all the Obligations and
Secured Party's receipt of a writing signed by Debtor terminating all
obligations of Secured Party to extend credit or provide financial
accommodations to Debtor, the Security Interests shall terminate and all rights
to the Collateral shall revert to Debtor. Upon any such termination of the
Security Interests or release of Collateral, Secured Party will, at Debtor's
expense to the extent permitted by law, 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.
SECTION 18. NOTICES.
---------- -------
All notices, communications and demands hereunder shall be in writing
and sent by certified or registered mail, return receipt requested, or by
overnight delivery service, with all charges prepaid, to the applicable party or
parties at the addresses set forth below, or by facsimile transmission
15
<PAGE>
(including, without limitation, computer generated facsimile), promptly
confirmed in writing sent by first class mail, to the FAX numbers and addresses
set forth below:
(i) If to Debtor, to it at:
____________________________
____________________________
with a copy to:
____________________________
____________________________
____________________________
(ii) If to Secured Party, to it at:
Bay View Capital L.L.C.
5600 Post Road, No. 114-372
East Greenwich, RI 02818
with a copy to:
MacAdams & Wieck, Incorporated
101 Dyer Street, Suite 400
Providence, RI 02903
Attn: Richard L.Gemma, Esq.
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties complying as to delivery with the terms
of this Section. All such notices and correspondence shall be deemed given upon
the earliest to occur of (i) actual receipt, (ii) if sent by certified or
registered mail, three (3) business days after being postmarked, (iii) if sent
by overnight delivery service, when received or when delivery is refused, or
(iv) if sent by facsimile, when receipt of such transmissions acknowledged.
SECTION 19. WAIVERS; NON-EXCLUSIVE REMEDIES.
----------- --------------------------------
(a) Except as otherwise specifically provided herein, Debtor hereby
waives demand, notice, protest, notice of acceptance of this Security Agreement,
notice of loans made, credit extended, collateral received or delivered or other
action taken in reliance hereon (and all other demands and notice of any
description). With respect to both the Obligations and the Collateral, Debtor
hereby assents to any extension or postponement of the time of payment or any
other indulgence, to any substitution, exchange or release of Collateral, to the
16
<PAGE>
addition or release of any party or person primarily or secondarily liable, to
the acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as
Secured Party may deem advisable.
(b) Except as otherwise provided by applicable law, Secured Party shall
not have any duty as to the collection or protection of the Collateral or any
income thereon, nor as to the preservation of rights against prior parties, nor
as to the preservation of any rights pertaining thereto beyond the safe custody
of any Collateral in its possession. Except as otherwise provided by applicable
law, Secured Party may exercise its rights with respect to the Collateral
without resorting or regard to other collateral or sources of reimbursement for
liability. Except as otherwise provided by applicable law, Secured Party shall
not be required to marshal any present or future security for (including, but
not limited to, this Security Agreement and the Collateral subject to the
Security Interest created hereby), or guaranties of, the Obligations or any of
them, or to resort to such security or guarantees in any particular order; and
all of its rights hereunder and in respect of such security and guarantees shall
be cumulative and in addition to all other rights, however existing or arising.
To the extent that it lawfully may do so, Debtor hereby agrees that it will not
invoke any law relating to the marshalling of Collateral which might cause delay
in or impede the enforcement of Secured Party's rights under this Security
Agreement or under any other instrument evidencing any of the Obligations or
under which any of the Obligations is outstanding or by which any of the
Obligations is secured or guaranteed, and to the extent that it lawfully may do
so, Debtor hereby irrevocably waives the benefits of all such laws.
(c) No failure on the part of Secured Party to exercise, and no delay
in exercising, and no course of dealing with respect to, any right, power or
remedy under this Security Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise by Secured Party of any right, power or
remedy under this Security Agreement preclude any other right, power or remedy.
The remedies in this Security Agreement are cumulative and are not exclusive of
any other remedies provided by law, including any rights of setoff in favor of
Secured Party.
(d) Debtor, to the extent it may lawfully do so, hereby consents to the
jurisdiction of the courts of the State of Rhode Island and the Federal District
Court for the District of Rhode Island for the purpose of any suit or proceeding
brought in connection with or with respect to this Security Agreement.
SECTION 20. WAIVER OF JURY TRIAL.
----------- ---------------------
EACH OF DEBTOR AND SECURED PARTY HEREBY EXPRESSLY WAIVES TRIAL BY JURY
IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT.
17
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SECTION 21. CHANGES IN WRITING.
----------- -------------------
Neither this Security Agreement nor any provision hereof may be
changed, waived, discharged or terminated orally but only by a statement in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
SECTION 22. RHODE ISLAND LAW; MEANING OF TERMS.
----------- -----------------------------------
This Security Agreement shall be construed in accordance with and
governed by the laws of the State of Rhode Island applicable to contracts made
and performed in said state, except to the extent that remedies provided by the
laws of any state other than Rhode Island are governed by the laws of such
state. Unless otherwise defined herein, or unless the context otherwise
requires, all terms used herein which are defined in the UCC as in effect in the
State of Rhode Island have the meanings therein stated.
SECTION 23. SEPARABILITY.
----------- -------------
If any provision hereof is invalid or unenforceable in any
jurisdiction, the other provisions hereof shall remain in full force and effect
in such jurisdiction and shall be liberally construed in favor of Secured Party.
SECTION 24. SUCCESSORS AND ASSIGNS.
----------- -----------------------
This Security Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, including,
without limitation, any subsequent holders of the Note or any of the
Obligations, each of whom shall, without further act, become a party hereto by
becoming a holder of the Note or such Obligations.
SECTION 25. HEADINGS.
---------- --------
The headings in this Security Agreement are for the purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 26. COUNTERPARTS.
----------- -------------
This Security Agreement may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same agreement.
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<PAGE>
IN WITNESS WHEREOF, this Security Agreement has been executed by the
parties hereto all as of the day and year first above written.
MARKLAND TECHNOLOGIES, INC.
By:
--------------------------------------
Title:
-----------------------------
BAY VIEW CAPITAL L.L.C.
By:
--------------------------------------
Title:
-----------------------------
19
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EXHIBIT A
---------
PLEDGED SECURITIES EXISTING ON DATE HEREOF
------------------------------------------
<PAGE>
EXHIBIT B
---------
FINANCING STATEMENTS ON FILE ON DATE HEREOF
-------------------------------------------
Filing Secured File Collateral
Office Party No. Date Description
------ ----- --- ---- -----------
<PAGE>
EXHIBIT C
---------
ADDITIONAL REPRESENTATIONS AND WARRANTIES
-----------------------------------------
1. Debtor's exact name is:_______________________________________
2. Debtor's Federal Tax Identification Number is: #_____________.
3. Debtor's organization number assigned to Debtor by the Secretary of
State of its state of formation is #__________________.
4. Debtor uses in its business and owns the following trade names:
____________
5. Debtor's chief executive office is: ________________________________
6. Debtor's principal place of business is: ____________________________
7. Debtor has other places of business located at: ____________________-
8. Debtor owns or has an interest in personal property located elsewhere
at:__________________________________________________________________
9. Debtor owns property consisting of fixtures at the following locations:
Address Record Owner of Real Estate
True and complete legal descriptions of such real estate are attached hereto as
Schedules ______________.
<PAGE>
EXHIBIT D
---------
PATENTS, TRADEMARKS, TRADENAMES, ETC.
-------------------------------------