EXHIBIT 4.4
SECURITY AGREEMENT
To: Laurus Master Fund, Ltd.
c/o Onshore Corporate Services, Ltd.
P.O. Box 1234 G.T
Queensgate House
South Church Street
Grand Cayman, Cayman Islands
Gentlemen:
1. To secure the payment of all Obligations (as hereafter
defined), we hereby grant to you a continuing security interest in all of the
following property now owned or at any time hereafter acquired by us, or in
which we now have or at any time in the future may acquire any right, title or
interest (the "Collateral"): all accounts, inventory, equipment, goods,
documents, instruments (including, without limitation, promissory notes),
contract rights, general intangibles (including, without limitation, payment
intangibles), chattel paper, supporting obligations, investment property,
letter-of-credit rights, trademarks and tradestyles in which we now have or
hereafter may acquire any right, title or interest, all proceeds and products
thereof (including, without limitation, proceeds of insurance) and all
additions, accessions and substitutions thereto or therefor.
2. The term "Obligations" as used herein shall mean and include
all debts, liabilities and obligations owing by each of us to you under that
certain Guaranty, dated as of the date hereof, as amended, modified and
supplemented from time to time (as so amended, modified and supplemented, the
"Guaranty") and all obligations owing by Numerex Corp. ("Company") to you under
the Convertible Term Note dated as of the date hereof in the original principal
amount of $4,500,000, as amended, modified and supplemented from time to time or
otherwise (as so amended, modified and supplemented from time to time, the
"Note").
3. We hereby represent, warrant and covenant to you that: (a)
each of us is a legal entity validly existing, in good standing and formed under
the laws of the jurisdictions set forth below our names on the signature pages
hereto with an organization identification number set forth below our names on
the signature pages hereto and we will provide you thirty (30) days' prior
written notice of any change in our state of formation; (b) our legal names are
as set forth on the signature pages hereto and are identical to that which is
set forth in our certificates or articles of incorporation or other constitutive
documents, as amended through the date hereof; (c) we are the lawful owner of
the Collateral and have the sole right to grant a security interest therein and
will defend the Collateral against all claims and demands of all persons and
entities; (d) we will keep the Collateral free and clear of all attachments,
levies, taxes, liens, security interests and encumbrances of every kind and
nature ("Encumbrances"), except to the extent said Encumbrance does not secure
indebtedness in excess of $150,000 on a combined basis for each of us at any one
time and such Encumbrance is removed or otherwise released within 10 business
days of the creation thereof; (e) we will at our own cost and expense use
commercially
reasonable efforts to keep the Collateral in good state of repair (ordinary wear
and tear excepted) and will use commercially reasonable efforts not to waste or
destroy the same or any part thereof other than ordinary course discarding of
items no longer used or useful in our business; (f) we will not without your
prior written consent, sell, exchange, lease or otherwise dispose of the
Collateral or any of our rights therein, whether by sale, lease or otherwise,
except for (I) Permitted Non-Core Asset Sales (as defined in the Note), (II) the
sale of inventory in the ordinary course of business and (III) the disposition
or transfer in the ordinary course of business during any fiscal year of
obsolete and worn-out equipment having an aggregate fair market value of not
more than $37,500 and only to the extent that (i) the proceeds of any such
equipment disposition are used to acquire replacement equipment which is subject
to your first priority security interest or are used to repay Obligations or to
pay general corporate expenses, or (ii) following the occurrence of an Event of
Default which continues to exist the proceeds of which are remitted to you to be
held as cash collateral for the Obligations; (g) we will name you as an
additional insured and lender's loss payee under all of our policies of
insurance which shall insure, without limitation, the Collateral against such
losses, damages and hazards as you shall reasonably require and in amounts and
under policies issued by insurers reasonably acceptable to you. If we fail to do
so, you may procure such insurance and the cost thereof shall constitute
Obligations; (h) we will at all reasonable times and upon reasonable advance
notice (except that such notice shall not be required in the event you
reasonably believe such access is necessary to preserve or protect the
Collateral and/or during the continuance of an Event of Default) allow you or
your representatives free access to and the right of inspection of the
Collateral provided that you do not unreasonably interfere with our normal
business operations; (i) we hereby indemnify and save you harmless from all
loss, costs, damage, liability and/or expense, including reasonable attorneys'
fees, that you may sustain or incur to enforce payment, performance or
fulfillment of any of the Obligations and/or in the enforcement of this
Agreement or in the prosecution or defense of any action or proceeding either
against you or us concerning any matter growing out of or in connection with
this Agreement, and/or any of the Obligations and/or any of the Collateral,
except to the extent caused by your own gross negligence or willful misconduct;
(j) with respect to all accounts arising out of contracts between us and the
United States of America, or any state, or any department, agency or
instrumentality of any of them (each, a "Government Contract"), we will, upon
your request, comply with any governmental notice or approval requirements,
including, without limitation, compliance with the Federal Assignment of Claims
Act, and (k) each account shall conform to the following criteria: (i) shipment
of the merchandise or rendition of services has been completed, (ii) merchandise
or services shall not have been rejected or disputed by the account debtor and
there shall not have been asserted any offset, defense or counterclaim (other
than any such rejections, disputes, offsets, defenses or counterclaims which are
asserted in the ordinary course of business), and (iii) each such account shall
be a good and valid account representing an undisputed bona fide indebtedness
(other than in connection with any such dispute arising in the ordinary course
of business) incurred by the account debtor liable therefor, for a fixed sum as
set forth in the invoice relating thereto with respect to an unconditional sale
and delivery upon the stated terms of goods sold by us, or work, labor and/or
services rendered by us, as applicable. You acknowledge that concurrent with
each such sale, and your receipt in immediately available funds of all proceeds
of such required to be paid to you pursuant to the Note, you shall promptly take
all action
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reasonably requested by us to release your security interest in those assets
sold pursuant to a Permitted Non-Core Asset Sale.
4. Following the occurrence and during the continuance of an
Event of Default, you shall have the right to instruct all of our account
debtors to remit payments on all accounts in accordance with your express
written instructions. If, despite such instructions, we shall receive any
payments with respect to accounts, we shall receive such payments in trust for
your benefit, shall segregate such payments from our other funds and shall
deliver or cause to be delivered to you, in the same form as so received with
all necessary endorsements, all such payments as soon as practicable, but in no
event later than five (5) business days after our receipt thereof. Following the
occurrence and during the continuation of an Event of Default, you shall have
full power and authority to collect each account, through legal action or
otherwise, and may settle, compromise, or assign (in whole or in part) the claim
for any account, or otherwise exercise any other right now existing or hereafter
arising with respect to any account if such action is commercially reasonable
and will expedite collection.
5. We shall be in default under this Agreement upon the happening
of any of the following events or conditions, each such event or condition being
an "Event of Default" (a) the occurrence of any Event of Default under and as
defined in the Note and/or Guaranty which is not cured within any applicable
notice, cure, grace or similar period; (b) any warranty, representation or
statement made or furnished to you by any of us or on our behalf was false in
any material respect when made or furnished; (c) any of us shall breach in any
material respect any provision of this Agreement, as the same may be amended,
modified and supplemented from time to time, and such breach shall not have been
cured during any applicable notice, cure, grace or similar period; (d) except to
the extent otherwise expressly permitted hereunder, the loss, theft, damage,
destruction, sale or encumbrance to or of any of the Collateral or the making of
any levy, seizure or attachment thereof or thereon except to the extent (i) said
levy, seizure or attachment does not secure indebtedness in excess of $100,000
and such levy, seizure or attachment has not been removed or otherwise released
within 10 business days of the creation or the assertion thereof or (ii) (I)
with respect to any loss, theft, destruction or damage to or of any of the
Collateral (collectively, a "Loss") in an aggregate amount equal to $1,000,000
or more on a combined basis for all Collateral, you shall have received within
ninety (90) days of the occurrence of such Loss insurance proceeds in an amount
not less than ninety percent (90%) of the fair market value of the Collateral
subject to such Loss and (II) with respect to any Loss in an aggregate amount
less than $1,000,000 on a combined basis for all Collateral, you shall have
repaired, replaced or otherwise restored the Collateral subject to such Loss
within ninety (90) days of the occurrence of such Loss; (e) other than in
connection with a Permitted Transaction, any of us shall become insolvent, cease
operations, dissolve, terminate our business existence, make an assignment for
the benefit of creditors, or suffer the appointment of a receiver, trustee,
liquidator or custodian of all or any part of our property; (f) any proceedings
under any bankruptcy or insolvency law shall be commenced by or against any of
us and if commenced against us shall not be dismissed within 45 days; (g) any of
us shall repudiate or purport to revoke any of our obligations under the Note or
any guaranty agreement made by any of us in favor of you after expiration of
applicable cure, notice, grace or similar period; or (h) if any Core Company
shall at any time transfer in any manner whatsoever, including by way of merger,
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consolidation or otherwise, any of its assets to a Non-Core Company. For
purposes of subsection (e) above, the term "Permitted Transaction" shall mean a
Permitted Non-Core Asset Sale or any winding-up, dissolution, merger or
liquidation of any subsidiary of the Company following the sale of all or
substantially all of its assets as a result of a Permitted Non-Core Asset Sale.
For purposes of subsection (h) above, the following terms shall have the
following meanings: (1) "Core Company" shall mean any one or more of the
following companies: Numerex Corp. (a Pennsylvania corporation), Numerex
Solutions, LLC (a Delaware limited liability company), Cellemetry LLC (a
Delaware limited liability company), Numerex Investment Corp. (a Delaware
corporation), Mobileguardian LLC (a Delaware limited liability company) and
Uplink Security, Inc. (a Georgia corporation); and (2) "Non-Core Company" shall
mean any one or more of the following companies: Digilog Inc. (a Pennsylvania
corporation), DCX Systems Inc. (a Pennsylvania corporation), DCX Systems
Australia PTY Limited (an Australian company), Broadband Networks Inc. (a
Delaware corporation) and BNI Solutions LLC (a Delaware limited liability
company). You hereby acknowledge that you will not unreasonably withhold your
consent to any non-bankruptcy internal corporate reorganization or restructuring
of the Company and/or any of its subsidiaries.
6. Upon the occurrence of any Event of Default and for so long as
such Event of Default is continuing, you may declare all Obligations immediately
due and payable and you shall have the remedies of a secured party provided in
the Uniform Commercial Code as in effect in the State of New York, this
Agreement and other applicable law. Upon the occurrence of any Event of Default
and for so long as such Event of Default is continuing, you will have the right
to take possession of the Collateral and to maintain such possession on our
premises or to remove the Collateral or any part thereof to such other premises
as you may desire. Upon your request (following the occurrence of an Event of
Default for so long as such Event of Default is continuing), we shall assemble
the Collateral and make it available to you at a place designated by you. If any
notification of intended disposition of any Collateral is required by law, such
notification, if mailed, shall be deemed properly and reasonably given if mailed
at least ten (10) days before such disposition, postage prepaid, addressed to us
either at our address shown herein or at any other address for such notice as we
may provide you from time to time in writing pursuant to Section 11 hereof. Any
proceeds of any disposition of any of the Collateral shall be applied by you in
the following order to the extent of any such proceeds: first, to the payment of
all reasonable expenses in connection with the sale of the Collateral, including
reasonable attorneys' fees and other legal expenses and disbursements and the
reasonable expense of retaking, holding, preparing for sale, selling, and the
like, second, toward the payment of the Obligations in such order of application
as you may elect subject to the terms of the Note, and third, to us or as
otherwise required by the Uniform Commercial Code or as a court of competent
jurisdiction may direct.
7. If we default in the performance or fulfillment of any of the
terms, conditions, promises, covenants, provisions or warranties on our part to
be performed or fulfilled under or pursuant to this Agreement, you may, at your
option without waiving your right to enforce this Agreement according to its
terms, at any time after five (5) days' written notice to Numerex Corp., as our
agent (provided that no such notice shall be required in the event prompt action
is necessary to preserve or protect the Collateral), perform or fulfill the same
or cause the
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performance or fulfillment of the same for our account and at our sole cost and
expense, and the reasonable out-of-pocket cost and expense thereof (including
reasonable attorneys' fees) shall be added to the Obligations and shall be
payable on demand with interest thereon at the highest interest rate under the
Note.
8. We appoint you, any of your officers, employees or any other
person or entity whom you may designate as our attorney, with power to execute
such documents in our behalf and to supply any omitted information and correct
patent errors in any documents executed by us or on our behalf; to file
financing statements against us covering the Collateral; to sign our name on
public records only if and to the extent necessary to evidence, perfect and/or
preserve the security interest created pursuant to this Agreement; and to take
all such other reasonable actions that are necessary to carry out this
Agreement. We hereby ratify and approve all acts of the attorney and neither you
nor the attorney will be liable for any acts of commission or omission, nor for
any error of judgment or mistake of fact or law other than gross negligence or
willful misconduct. This power being coupled with an interest, is irrevocable so
long as any Obligations remains unpaid.
9. No delay or failure on your part in exercising any right,
privilege or option hereunder shall operate as a waiver of such or of any other
right, privilege, remedy or option, and no waiver whatever shall be valid unless
in writing, signed by you and then only to the extent therein set forth, and no
waiver by you of any default shall operate as a waiver of any other default or
of the same default on a future occasion. You shall have the right to enforce
any one or more of the remedies available to you, successively, alternately or
concurrently. We agree to join with you in executing financing statements or
other instruments to the extent required by the Uniform Commercial Code in form
satisfactory to you and in executing such other documents or instruments as may
be reasonably required or deemed necessary by you for purposes of effecting or
continuing your security interest in the Collateral.
10. This Agreement cannot be changed or terminated orally, and
shall be governed by and construed in accordance with the laws of the State of
New York, without regard to principles of conflicts of laws. Any action brought
by either party against the other concerning the transactions contemplated by
this Agreement shall be brought only in any state or federal court sitting in
the Borough of Manhattan, City of New York; provided that nothing contained in
this Agreement shall be deemed to preclude you from bringing suit or taking
other legal action in any other court of competent jurisdiction and nothing
shall be deemed to preclude us from asserting any defenses or counterclaims in
any such actions. You, we and the individuals executing this Agreement agree to
submit to the jurisdiction of such courts and waive trial by jury. You, we and
the individuals executing this Agreement further consent that any summons,
subpoena or other process or papers (including, without limitation, any notice
or motion or other application to either of the aforementioned courts or a judge
thereof) or any notice in connection with any proceedings hereunder, may be
served by registered or certified mail, return receipt requested, or by personal
service provided a reasonable time for appearance is permitted, or in such other
manner as may be permissible under the rules of said courts. You, we and the
individuals executing this Agreement waive any objection to jurisdiction and
venue of any action instituted hereon in the Supreme Court for the State of New
York, County of New York or the United
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States District Court for the Southern District of New York and shall not assert
any defense based on lack of jurisdiction or venue or based upon forum non
conveniens in any action brought in either such court.
11. All notices from you to us shall be sufficiently given if
mailed or delivered to us at our address set forth below unless you shall have
received from us in writing another address for notices. Copies of all notices
to us shall also be sent to: Legal Counsel, Numerex Corp., 1600 Parkwood Circle
SE, Suite 200, Atlanta, Georgia 30339, facsimile: (770) 693-5951, and Richard
Baltz, Esq., Arnold & Porter, 555 12th Street, N.W., Washington, D.C. 20004,
facsimile: (202) 942-5999.
[SIGNATURE LINES ON FOLLOWING PAGE]
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[SIGNATURE PAGE NO. 1 TO SECURITY AGREEMENT]
Very truly yours,
NUMEREX CORP.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Pennsylvania
Org. ID#: PA2569500
NUMEREX SOLUTIONS LLC
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: MANAGER
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Delaware
Org. ID#: DE3361359
CELLEMETRY LLC
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: MANAGER
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Delaware
Org. ID#: DE2896495
[SIGNATURE LINES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURE PAGE NO. 2 TO SECURITY AGREEMENT]
NUMEREX INVESTMENT CORP.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Delaware
Org. ID#: DE2429448
BROADBAND NETWORKS INC.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 2820 E. College Ave. Suite B
State College, PA 16801-7548
State of Formation: Delaware
Org. ID#: DE2280048
BNI SOLUTIONS LLC
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: MANAGER
------------------------------
Address: 2820 E. College Ave. Suite B
State College, PA 16801-7548
State of Formation: Delaware
Org. ID#: DE3410681
[SIGNATURE LINES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURE PAGE NO. 3 TO SECURITY AGREEMENT]
DIGILOG INC.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 2360 Maryland Road
Willow Grove, PA 19090
State of Formation: Pennsylvania
Org. ID#: PA2587972
DCX SYSTEMS INC.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 2360 Maryland Road
Willow Grove, PA 19090
State of Formation: Pennsylvania
Org. ID#: PA2608798
DCX SYSTEMS AUSTRALIA PTY LIMITED
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: DIRECTOR
------------------------------
Address: Lindfield Executive Centre
12 Tryon Rd.
P.O. Box 42
Lindfield, NSW 2072, Australia
State of Formation: Australia
Org. ID#: 078013573
[SIGNATURE LINES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURE PAGE NO. 4 TO SECURITY AGREEMENT]
MOBILEGUARDIAN LLC
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: MANAGER
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Delaware
Org. ID#: DE3597074
UPLINK SECURITY, INC.
By: /s/ STRATTON J. NICOLAIDES
-------------------------------
Its: CEO
------------------------------
Address: 1600 Parkwood Circle SE, Suite 200
Atlanta, GA 30339
State of Formation: Georgia
Org. ID#: GAK823623
Dated as of: January 13, 2004
ACKNOWLEDGED:
LAURUS MASTER FUND, LTD.
By: /s/ DAVID GRIN
----------------------------
Its:
---------------------------
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STATE OF Georgia)
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of Numerex Corp., the corporation described in and which executed the
above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the manager of Numerex Solutions LLC, the limited liability company described
in and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said limited liability company.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the manager of Cellemetry, LLC, the limited liability company described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said limited liability company.
Pamela S. Lester
-----------------------
Notary Public
11
STATE OF Georgia)
: ss.:
COUNTY OF Cobb)
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of Numerex Investment Corp., the corporation described in and which
executed the above instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of BroadBand Networks Inc., the corporation described in and which
executed the above instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
________________________________
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the manager of BNI Solutions LLC, the limited liability company described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said limited liability company.
Pamela S. Lester
-----------------------
Notary Public
12
STATE OF Georgia)
: ss.:
COUNTY OF Cobb)
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of Digilog Inc., the corporation described in and which executed the
above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of DCX Systems Inc., the corporation described in and which executed
the above instrument; and that s/he signed her/his name thereto by order of the
board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the Director of DCX Systems Australia PTY Limited, the ______________
described in and which executed the above instrument; and that s/he signed
her/his name thereto by order of the board of directors of said
__________________.
Pamela S. Lester
-----------------------
Notary Public
13
STATE OF Georgia)
: ss.:
COUNTY OF Cobb)
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the manager of MobileGuardian LLC, the limited liability company described in
and which executed the above instrument; and that s/he signed her/his name
thereto by order of the board of directors of said limited liability company.
Pamela S. Lester
-----------------------
Notary Public
STATE OF Georgia )
: ss.:
COUNTY OF Cobb )
On the 13th day of January, 2004, before me personally came Stratton J.
Nicolaides to me known, who, being by me duly sworn did depose and say that s/he
is the CEO of Uplink Security, Inc., the corporation described in and which
executed the above instrument; and that s/he signed her/his name thereto by
order of the board of directors of said corporation.
Pamela S. Lester
-----------------------
Notary Public
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