Exhibit 10.4
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of June 10, 2004 (as
amended, supplemented or modified from time to time, this "Agreement"), made by
TIMEPAYMENT CORP. LLC ("Borrower" or "Grantor") in favor of ACORN CAPITAL GROUP,
LLC ("Secured Party").
RECITALS
A. Pursuant to the Credit Agreement dated as of the date
hereof (as amended, supplemented or modified from time to time, the "Credit
Agreement"; capitalized terms used but not defined herein shall have the
meanings given such terms in the Credit Agreement) by and among Borrower,
certain guarantors named therein, including MicroFinancial Incorporated ("MFI")
and Leasecomm Corporation ("Leasecomm"), and Secured Party, Secured Party has
agreed to make the Loan to Borrower; and
B. In order to induce Secured Party to make the Loan, Grantor
has agreed to grant a continuing Lien on the Collateral pledged by it to secure
the Obligations (as hereinafter defined).
Accordingly, Grantor hereby agrees as follows:
1. Security Interest.
(a) Grant of Security. Subject to Liens permitted by the
Credit Agreement which have priority by operation of law, as security for the
Obligations (as hereinafter defined), Grantor hereby delivers, assigns, pledges,
sets over and grants to Secured Party a first priority security interest in, all
of its right, title and interest, whether now existing or hereafter arising or
acquired, in and to any and all items of its personal property described on
Exhibit A hereto which is executed by an authorized person of Grantor, together
with all substitutions and replacements thereof and any products and proceeds
thereof including any which are described on a supplement hereto in
substantially the form of Exhibit B hereto (the "Collateral").
(b) Security for Obligations. This Agreement secures the
payment of all now existing or hereafter arising obligations of Grantor to
Secured Party, whether primary or secondary, direct or indirect, absolute or
contingent, joint or several, secured or unsecured, due or not, liquidated or
unliquidated, arising by operation of law or otherwise under the Credit
Agreement or any other Credit Document (as defined in the Credit Agreement)
including the Guaranty, whether for principal, interest, fees, expenses or
otherwise, together with all costs of collection or enforcement, including,
without limitation, reasonable attorneys' fees incurred in any collection
efforts or in any action or proceeding (all such obligations being the
"Obligations").
(c) Grantor Remains Liable. This Agreement shall not affect
Grantor's liability to perform all of its duties and obligations under the
transactions giving rise to the Obligations. The exercise by Secured Party of
any of the rights hereunder shall not release Grantor from any of its duties or
obligations under the transactions giving rise to the Obligations, which shall
remain unchanged as if this Agreement had not been executed. Secured Party shall
not have any obligation or liability under the transactions giving rise to the
Obligations by reason of this Agreement, nor shall Secured Party be obligated to
perform any of the obligations or duties of any Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
(d) Supplement. From time to time Grantor may deliver,
assign, pledge, set over and grant to Secured Party a first priority security
interest in any additional items of personal property by delivering on a
supplement hereto in substantially the form of Exhibit B hereto listing such
items; thereafter, all such items of personal property shall be "Collateral"
hereinafter and subject to the terms of this Agreement. If Grantor shall, now or
at any time hereafter, hold or acquire any promissory notes or tangible chattel
paper, Grantor shall forthwith endorse, assign and deliver the same to Iron
Mountain, pursuant to the terms of the Iron Mountain Agreement and Section 5.10
of the Credit Agreement, accompanied by such instruments of transfer or
assignment duly executed in blank as the Secured Party may from time to time
specify.
(e) Continuing Agreement. This Agreement shall create a
continuing security interest in the Collateral and shall remain in full force
and effect until payment in full of the Obligations.
2. Title; Liens and Encumbrances. Grantor represents and
warrants that it is (or to the extent that this Agreement states that the
Collateral is to be acquired after the date hereof, will be) the record and
beneficial owner of, having (or to the extent that this Agreement states that
the Collateral is to be acquired after the date hereof, will have) good and
marketable title to, the Collateral pledged by it hereunder, free of any and all
Liens or options in favor of, or claims of, any other person, except for
Permitted Encumbrances (and the other Liens permitted by Section 6.9 of the
Credit Agreement) and the Liens created by this Agreement. Grantor will promptly
notify Secured Party of any such other Lien or claim made or asserted against
the Collateral and will defend the Collateral against any such Lien or other
claim.
3. State of Organization or Residence; Legal Name. Grantor
represents and warrants to Secured Party as follows:
(a) Grantor does not have a state of organization or
principal residence, except as set forth on Schedule I to the Credit Agreement.
Grantor's chief executive office or principal office, if it is not a registered
organization, as such term is defined under the Uniform Commercial Code as in
effect in the State of New York as it may be amended, supplemented or modified
from time to time (the "UCC"), is set forth on Schedule I to the Credit
Agreement. Grantor shall promptly notify Secured Party of any change in the
foregoing representations.
(b) Grantor's registered or legal name is as set forth on
Schedule I to the Credit Agreement. Grantor currently uses, and during the last
five years has used, no other names including business or trade names, except as
set forth on Schedule I to the Credit Agreement. Grantor shall not change such
name without providing Secured Party 30 days prior written notice.
(c) Subject to Liens permitted by the Credit Agreement which
have priority by operation of law, the grant of the security interest in the
Collateral, combined with the filing of financing statements, the execution of
control agreements, the execution of Assignments, and/or possession of the
Collateral, each as appropriate, is effective to vest in Secured Party a valid
and perfected first priority security interest, superior to the rights of any
person in and to the Collateral as set forth herein.
4. Perfection of Security Interest. Grantor authorizes Secured
Party to file all such financing statements and amendments thereto pursuant to
the UCC or other notices appropriate under applicable law, as Secured Party may
require, each in form satisfactory to Secured Party. Secured Party may transfer,
withdraw or redeem any funds or other property in each deposit account or
securities account constituting Collateral without further consent by Grantor;
provided that Secured Party will not exercise any of such rights other than
during an Event of Default. Grantor also shall pay all filing or recording costs
with respect thereto, and all costs of filing or recording this Agreement or any
other agreement or document executed and delivered pursuant hereto or to the
Obligations (including the cost of all federal, state or local mortgage,
documentary, stamp or other taxes), in each case, in all public offices where
filing or recording is deemed by Secured Party to be necessary or desirable.
Grantor authorizes Secured Party to take all other action which Secured Party
may deem necessary or desirable to perfect or otherwise protect the Liens
created hereunder and to obtain the benefits of this Agreement.
5. Covenants Relating to Collateral. Until the Obligations
shall have been paid in full, and the Credit Agreement shall have terminated,
Grantor covenants and agrees that if Grantor shall become entitled to receive or
shall receive any certificate (including, without limitation, any certificate
representing a dividend or a distribution in connection with any
reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights in respect of the
Collateral, whether in addition to, in substitution of, as a conversion of, or
in exchange for, any shares of the Collateral, or otherwise in respect thereof,
Grantor shall accept the same as the agent of Secured Party, hold the same in
trust for Secured Party and deliver the same forthwith to Secured Party in the
exact form received, duly indorsed by Grantor to Secured Party, if required,
together with an undated assignment covering such certificate duly executed in
blank by Grantor and with, if Secured Party so requests, signature guaranteed,
to be held by Secured Party, subject to the terms thereof, as additional
collateral security for the Obligations. If any of the foregoing property so
distributed in respect of the Collateral shall be received by Grantor, Grantor
shall, until such property is paid or delivered to Secured Party, hold such
property in trust for Secured Party, segregated from other funds or property of
Grantor, as additional collateral security for the Obligations.
6. Collections; Other Rights.
(a) Except as provided herein, Grantor may receive all cash
interest, dividends and distributions paid in respect of the Collateral, and to
exercise all voting rights with respect to the Collateral; provided, however,
that no vote shall be cast or right exercised or other action taken which, in
Secured Party's reasonable judgment, would impair the Collateral or which would
be inconsistent with or result in any violation of any provision of this
Agreement or any other Credit Document.
(b) All of the foregoing amounts set forth in paragraph (a)
of this Section 6 so collected after the occurrence of and during the
continuation of an Event of Default shall be held in trust by Grantor for and as
the property of Secured Party, and shall not be commingled with other funds,
money or property of Grantor.
(c) After the occurrence and during the continuation of an
Event of Default, Grantor will immediately upon receipt of all such checks, cash
or other remittances constituting part of the Collateral or in payment for any
Collateral sold, transferred, leased or otherwise disposed of, deliver any such
items to Secured Party accompanied by a remittance report in form supplied or
approved by Secured Party. Grantor shall deliver such items in the same form
received, endorsed or otherwise assigned by Grantor where necessary to permit
collection of such items.
(d) Upon any sale, lease, transfer or other disposition of
any item of Collateral in accordance with the terms of the Credit Agreement,
Secured Party shall, at Grantor's expense, execute and deliver to Grantor the
documents as Grantor shall reasonably request to evidence the release of the
item of Collateral from the security interest granted hereby; provided, however,
that at the time of such request and such release, no Event of Default shall
have occurred and be continuing.
7. Events of Default. The occurrence of any one or more Events
of Default by any Obligor under the Credit Agreement shall constitute an event
of default ("Event of Default") by Grantor under this Agreement.
8. Rights and Remedies.
(a) In the event of the occurrence and continuation of any
Event of Default: (i) Secured Party may exercise exclusive control over the
Collateral; (ii) Secured Party shall have the right, with or without (to the
extent permitted by applicable law) notice to Grantor, as to any or all of the
Collateral, by any available judicial procedure or without judicial process, to
take possession of the Collateral and without liability for trespass to enter
any premises where the Collateral may be located for the purpose of taking
possession of or removing the Collateral, and generally to exercise any and all
rights afforded to a secured party under the UCC or other applicable law; (iii)
Secured Party shall have the right to sell, lease, or otherwise dispose of all
or any part of the Collateral, whether in its then condition or after further
preparation or processing, either at public or private sale or at any broker's
board, in lots or in bulk, for cash or for credit, with or without warranties or
representations, and upon such terms and conditions, all as Secured Party in its
sole discretion may deem advisable; (iv) at Secured Party's request, Grantor
shall assemble the Collateral and make it available to Secured Party at places
which Secured Party shall select, whether at Grantor's premises or elsewhere,
and make available to Secured Party, without rent, all of Grantor's premises and
facilities for the purpose of Secured Party's taking possession of, removing or
putting the Collateral in saleable or disposable form; (v) Secured Party shall
have the right to receive any and all cash interest, dividends, distributions,
payments or other proceeds paid in respect of the Collateral and made
application thereof to the Obligations in such order as Secured Party may
determine; and (vi) any or all of the Collateral may be registered in the name
of Secured Party or its nominee and they may thereafter exercise (x) all voting,
corporate and other rights pertaining to such Collateral and (y) any and all
rights of conversion, exchange and subscription and any other rights, privileges
or options pertaining to such Collateral as if it were the absolute owner
thereof (including, without limitation, the right to exchange at its discretion
any and all securities or securities entitlements upon any merger,
consolidation, reorganization, recapitalization or other fundamental change, or
upon the exercise of Grantor or Secured Party of any right, privilege or option
pertaining to such securities or securities entitlements, and in connection
therewith, the right to deposit and deliver any and all of the securities or
securities entitlements with any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as Secured
Party may determine), all without liability except to account for property
actually received by it, but Secured Party shall have no duty to Grantor to
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
(b) Any such sale, lease or other disposition of Collateral
may be made without demand for performance or any notice of advertisement
whatsoever except that where an applicable statute requires reasonable notice of
sale or other disposition, Grantor agrees that the sending of ten days notice by
ordinary mail, postage prepaid, to Grantor of the place and time of any public
sale or of the time at which any private sale or other intended disposition is
to be made, shall be deemed reasonable notice thereof. Notwithstanding the
foregoing, if any of the Collateral may be materially diminished in value during
such ten-day period, Secured Party shall provide Grantor with such shorter
notice as it deems reasonable under the circumstances.
(c) The proceeds of any such sale, lease or other
disposition of the Collateral shall be applied first to the expenses of
retaking, holding, storing, processing and preparing for sale, selling, and the
like, and to the reasonable attorneys' fees and legal expenses incurred by
Secured Party, and then to satisfaction of the Obligations (in any order as
Secured Party may decide in its sole discretion), and to the payment of any
other amounts required by applicable law. If, upon the sale, lease or other
disposition of the Collateral, the proceeds thereof are insufficient to pay all
amounts to which Secured Party is legally entitled, Borrower will be liable for
the deficiency, together with interest thereon, at the rate prescribed in the
agreements giving rise to the Obligations, and the reasonable fees of any
attorneys employed by Secured Party to collect such deficiency. To the extent
permitted by applicable law, Grantor waives all claims, damages and demands
against Secured Party arising out of the repossession, removal, retention or
sale of the Collateral.
9. Power of Attorney. Grantor authorizes Secured Party and
does hereby make, constitute and appoint Secured Party, and any officer or agent
of Secured Party, with full power of substitution, as Grantor's true and lawful
attorney-in-fact, with power, in its own name or in the name of Grantor,
effective immediately upon the occurrence and during the continuation of an
Event of Default: (i) to endorse any notes, checks, drafts, money orders, or
other instruments of payment (including payments payable under or in respect of
any policy of insurance) in respect of the Collateral that may come into
possession of Secured Party; (ii) to pay or discharge any taxes, liens, security
interest or other encumbrances at any time levied or placed on or threatened
against the Collateral; (iii) to demand, collect, receipt for, compromise,
settle and sue for monies due in respect of the Collateral; (iv) to receive,
open and dispose of all mail addressed to Grantor and to notify the post office
authorities to change the address for delivery of mail addressed to Grantor to
such address as Secured Party may designate; (v) to exercise all membership
rights, powers and privileges in connection with the Collateral to the same
extent as Grantor is entitled to exercise such rights, powers and privileges;
and (vi) generally to do all acts and things which Secured Party deems necessary
to protect, preserve and realize upon the Collateral and Secured Party's
security interest therein. Grantor hereby approves and ratifies all acts of said
attorney or designee, who shall not be liable for any acts of commission or
omission, nor for any error or judgment or mistake of fact or law except for its
own gross negligence or willful misconduct. This power of attorney shall be
irrevocable for the term of this Agreement and thereafter as long as any of the
Obligations shall be outstanding. Secured Party may exercise this power of
attorney only after the occurrence and during the continuance of an Event of
Default.
10. Other Security. To the extent that the Obligations are now
or hereafter secured by property other than the Collateral or by the guaranty
(including, without limitation, the Guaranties), endorsement or property of any
other Person, then Secured Party shall have the right in its sole discretion to
pursue, relinquish, subordinate, modify or take any other action with respect
thereto, without in any way modifying or affecting any of Secured Party's rights
and remedies hereunder.
11. Limitation on Secured Party's Duty in Respect of
Collateral. Secured Party shall not have any duty as to any Collateral in its
possession or control or in the possession or control of any agent or nominee of
it or any income thereon or as to the preservation of rights against prior
parties or any other rights pertaining thereto, except that Secured Party shall
use reasonable care with respect to the Collateral in its possession or under
its control.
12. Miscellaneous.
(a) Notices. Any notice delivered under this Agreement shall
be given in the manner, to the addresses and with the effect set forth in
Section 8.1 of the Credit Agreement.
(b) Amendments. Any term of this Agreement may be amended,
waived, discharged or terminated only by an instrument in writing signed by each
party to this Agreement. No notice to or demand on Grantor shall be deemed to be
a waiver of the Obligations or of the right of Secured Party to take further
action without notice or demand as provided in this Agreement. No course of
dealing between Grantor and Secured Party shall change, modify or discharge, in
whole or in part, this Agreement or any Obligations. No waiver of any term,
covenant or provision of this Agreement shall be effective unless given in
writing by Secured Party and if so given shall only be effective in the specific
instance in which given.
(c) Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that Grantor may not assign or
otherwise transfer any of its rights or Obligations hereunder without the prior
written consent of Secured Party (and any attempted assignment or transfer by
Grantor without such consent shall be null and void).
(d) Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without effecting the validity, legality and enforceability of
the remaining provisions thereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
(e) Right to Deal with Borrower. At any time and from time
to time, without terminating, affecting or impairing the validity of this
Agreement or the obligations of Grantor hereunder, Secured Party may deal with
Borrower in the same manner and as fully as if this Agreement did not exist and
shall be entitled, among other things, to grant Borrower, without notice or
demand and without affecting Grantor's liability hereunder, such extension or
extensions of time to perform, renew, compromise, accelerate or otherwise change
the time for payment of or otherwise change the terms of indebtedness or any
part thereof contained in or arising under any Credit Document or any other
document evidencing Obligations of Borrower to Secured Party, or to waive any
obligation of Borrower to perform any act or acts, as Secured Party may deem
advisable.
(f) Governing Law; Jurisdiction; Consent to Service of
Process. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. GRANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY FEDERAL OR STATE COURT IN THE STATE OF NEW YORK IN ANY
ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND RELATED TO OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND CONSENTS
TO THE PLACING OF VENUE IN NEW YORK COUNTY OR OTHER COUNTY PERMITTED BY LAW. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, GRANTOR HEREBY WAIVES AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
SUCH COURTS, THAT THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT
FORUM, THAT THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER, OR THAT ANY
CREDIT DOCUMENT OR INSTRUMENT REFERRED TO HEREIN MAY NOT BE LITIGATED IN OR BY
SUCH COURTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, GRANTOR AGREES NOT TO
SEEK AND HEREBY WAIVES THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT
BY ANY COURT OF ANY OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON TO
GRANT AN ENFORCEMENT OF SUCH JUDGMENT. EXCEPT AS PROHIBITED BY LAW, GRANTOR
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
ANY CREDIT DOCUMENT. EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 8.1 OF THE
CREDIT AGREEMENT. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY
TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(g) Headings; Counterparts. Article and Section headings and
the table of contents (if applicable) used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this Agreement.
This Agreement may be executed in counterparts (and by different parties hereto
on different counterparts), each of which shall constitute an original, but all
of which when taken together shall constitute a single contract. Delivery of an
executed counterpart of a signature page of this Agreement or of any other
Credit Document by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement or of such other Credit Document.
(h) No Waiver; Rights Cumulative. No course of dealing
between Grantor and Secured Party, or Secured Party's failure to exercise or
delay in exercising any right, power or privilege hereunder shall operate as a
waiver thereof. Any single or partial exercise of any right, power or privilege
hereunder shall not preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. All of Secured Party's rights
and remedies with respect to the Collateral, whether established hereby or by
any other agreements, instruments or documents or by law, shall be cumulative
and may be exercised singly or concurrently.
(i) No Partnership. The relationship between Secured Party
and Grantor shall be only of creditor-debtor and no relationship of agency,
partner or joint- or co-venturer shall be created by or inferred from this
Agreement or the other Credit Documents. Grantor shall indemnify, defend, and
save Secured Party harmless from any and all claims asserted against Secured
Party as being the agent, partner, or joint-venturer of Grantor.
(j) Entire Agreement. This Agreement and the other Credit
Documents embody the entire agreement and understanding between Grantor and
Secured Party with respect to the subject matter hereunder and supersede all
prior conflicting or inconsistent agreements, consents and understandings
relating to such subject matter. Grantor acknowledges and agrees that there is
no oral agreement between Grantor and Secured Party which has not been
incorporated in this Agreement or another Credit Document.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed this
Agreement to be effective for all purposes as of the date above first written.
TIMEPAYMENT CORP. LLC
By_________________________________
Name:
Title:
State of )
) ss.
County of _____________________)
On June __, 2004, before me, a Notary Public, personally
appeared ____________, personally known to me or proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal. SEAL
Signature:
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EXHIBIT A
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This Exhibit A to the Pledge and Security Agreement, dated as
of June 10, 2004 (as amended, supplemented or modified from time to time, the
"Pledge Agreement"), made by TIMEPAYMENT CORP. LLC ("Grantor") in favor of ACORN
CAPITAL GROUP, LLC (the "Secured Party") describes the Collateral granted by
Grantor to Secured Party pursuant to the Pledge Agreement. "UCC" means the
Uniform Commercial Code as in effect in the State of New York as the UCC may be
amended, supplemented or modified from time to time. Any reference to any
agreement, instrument or document shall be construed as referring to such
agreement, instrument or document, as amended, supplemented or modified from
time to time. The Collateral shall be all of Grantor's right, title and
interest, whether now existing or hereafter arising or acquired, in and to any
and all of the following items of personal property of Grantor:
a. Accounts (as defined in the UCC), including
Health-Care-Insurance Receivables (as defined in the UCC).
b. Certificated Securities (as defined in the UCC).
c. Chattel Paper (as defined in the UCC).
d. All of Grantor's rights (including rights as licensee
and lessee) with respect to (i) computer and other electronic data
processing units, memory units, display terminals, printers, computer
elements, card readers, tape drives, hard and soft disk drives,
cables, electrical supply hardware, generators, power equalizers,
accessories, peripheral devices and other related computer hardware;
(ii) all Software (as defined in the UCC), and all software programs
designed for use on the computers and electronic data processing
hardware described in clause (A) above, including all operating
system software, utilities and application programs in any form
(source code and object code in magnetic tape, disk or hard copy
format or any other listings whatsoever); (iii) any firmware
associated with any of the foregoing; and (iv) any documentation for
hardware, Software and firmware described in clauses (A), (B), and
(C) above, including flow charts, logic diagrams, manuals,
specifications, training materials, charts and pseudo codes (the
"Computer Hardware and Software") and all rights with respect to the
Computer Hardware and Software, including any and all licenses,
options, warranties, service contracts, program services, test
rights, maintenance rights, support rights, improvement rights,
renewal rights and indemnifications, and any substitutions,
replacements, additions or model conversions of any of the foregoing
(collectively, "Intellectual Property").
e. Any right of Grantor to payment under a contract for
the sale or lease of goods or the rendering of services, which right
is at the time not yet earned by performance.
f. Deposit Accounts (as defined in the UCC).
g. Documents (as defined in the UCC).
h. Equipment (as defined in the UCC).
i. Financial Assets (as defined in the UCC).
j. General Intangibles (as defined in the UCC), including
Payment Intangibles (as defined in the UCC) and Software.
k. Goods (as defined in the UCC) (including all of its
Equipment, Fixtures and Inventory, all as defined in the UCC), and
all accessions, additions, attachments, improvements, substitutions
and replacements thereto and therefor.
l. Instruments (as defined in the UCC).
m. All past, present and future: trade secrets, know-how
and other proprietary information; trademarks, internet domain names,
service marks, trade dress, trade names, business names, designs,
logos, slogans (and all translations, adaptations, derivations and
combinations of the foregoing) indicia and other source and/or
business identifiers, and the goodwill of the business relating
thereto and all registrations which have heretofore been or may
hereafter be issued thereon throughout the world; copyrights
(including copyrights for computer programs) and copyright
registrations or applications for registrations which have heretofore
been or may hereafter be issued throughout the world and all tangible
property embodying the copyrights, unpatented inventions (whether or
not patenable); patent applications and patents; industrial design
applications and registered industrial designs; license agreements
related to any of the foregoing and income therefrom; books, records,
writings, computer tapes or disks, flow diagrams, specification
sheets, computer software, source codes, object codes, executable
code, data, databases and other physical manifestations, embodiments
or incorporations of any of the foregoing; the right to sue for all
past, present and future infringements of any of the foregoing; all
other intellectual property; and all common law and other rights
throughout the world in and to all of the foregoing.
n. Inventory (as defined in the UCC).
o. Investment Property (as defined in the UCC).
p. Money (of every jurisdiction whatsoever) (as defined in
the UCC).
q. Letter-of-Credit Rights (as defined in the UCC).
r. Payment Intangibles (as defined in the UCC).
s. Security Entitlements (as defined in the UCC).
t. Software (as defined in the UCC).
u. Uncertificated Securities (as defined in the UCC).
v. To the extent not included in the foregoing, all other
personal property of any kind or description; together with all
books, records, writings, data bases, information and other property
relating to, used or useful in connection with, or evidencing,
embodying, incorporating or referring to any of the foregoing, and
all Proceeds (as defined in the UCC), products, offspring, rents,
issues, profits and returns of and from any of the foregoing;
provided that to the extent that the provision of any lease or
license of Computer Hardware or Software or Intellectual Property
expressly prohibit (which prohibition is enforceable under applicable
law) any assignment thereof, and the grant of a security interest
therein, Secured Party will not enforce its security interest in
Grantor's rights under such lease or license (other than in respect
of the Proceeds thereof) for so long as such prohibition continues,
it being understood that upon the request of Secured Party, Grantor
will in good faith use reasonable efforts to obtain consent for the
creation of a security interest in favor of Secured Party (and to
Secured Party's enforcement of such security interest) in such
Secured Party's rights under such lease or license.
TIMEPAYMENT CORP. LLC
By_________________________________
Name:
Title:
EXHIBIT B
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SUPPLEMENT NO. _______ dated as of _____________, 200_ (this
"Supplement") to Pledge and Security Agreement dated as of June ___, 2004 (as
amended, supplemented or modified from time to time, the "Pledge Agreement")
made by TIMEPAYMENT CORP. LLC (the "Grantor") in favor of ACORN CAPITAL GROUP,
LLC (the "Secured Party").
As security for the Obligations (as defined in the Pledge
Agreement), Grantor hereby delivers, assigns, pledges, sets over and grants to
Secured Party a first priority security interest in, all of Grantor's right,
title and interest, whether now existing or hereafter arising or acquired, in
and to any and all items of personal property of Grantor described below
together with all substitutions and replacements thereof and any products and
proceeds thereof:
[Describe collateral.]
Exhibit A to the Pledge Agreement executed by Grantor shall be
deemed amended to include all of the foregoing items of personal property and
such items shall be "Collateral" as defined in the Pledge Agreement and subject
to the terms of the Pledge Agreement.
This Supplement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned parties have executed this
Supplement to be effective for all purposes as of the date above first written.
TIMEPAYMENT CORP. LLC
By_________________________________
Name:
Title: