GENERAL SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of December 30, 1999 (the "Agreement"),
between US Wireless Data, Inc., a Colorado corporation with offices at 2200
Powell Street, Emeryville, California 94603 (the "Debtor"), and ComVest Capital
Management LLC, a Delaware limited liability company with offices at 830 Third
Avenue, New York, New York 10022 (the "Secured Party");
W I T N E S S E T H:
WHEREAS, the Debtor and the Secured Party are parties to an 8% senior
secured promissory note issued by the Debtor in the aggregate principal amount
of $195,000 (herein, as at any time amended, extended, restated, renewed or
modified, the "Note"); and
WHEREAS, it is a condition to the willingness of the Secured Party to enter
into the Note and make the loan evidenced thereby that the Debtor enter into
this Agreement and grant to the Secured Party the security interest provided for
herein;
NOW, THEREFORE, FOR VALUE RECEIVED, IT IS AGREED:
Section 1. Terms. Unless otherwise defined herein, capitalized terms used
in this Agreement shall have the meaning specified therefor in the Note. As used
herein the following terms shall have the meanings specified and shall include
in the singular number the plural and in the plural number the singular:
"Assigned Agreement Interest" shall mean the profits, proceeds, or other
rights to payment of the Debtor under or from the performance, assignment, sale
or disposition of all contracts and agreements of the Debtor.
"Collateral" means all of the Debtor's right, title and interest in and
under or arising out of each and all of the following:
All personal property and fixtures of the Debtor of any type or
description, wherever located and now existing or hereafter arising or acquired,
including but not limited to the following:
(i) all of the Debtor's goods including, without limitation:
(a) all inventory, including without limitation, equipment held for
lease, whether raw materials, in process or finished, all material or equipment
usable in processing the same and all documents of title covering any inventory
(all of the foregoing, "Inventory"), including without limitation that located
at the locations listed on Schedule I annexed hereto;
(b) all equipment (the "Equipment") employed in connection with the
Debtor's business, together with all present and future additions, attachments
and accessions thereto and all substitutions therefor and replacements thereof,
including without limitation that located at the locations listed on Schedule 1
annexed hereto;
(ii) all of the Debtor's present and future accounts, accounts receivable,
general intangibles, contracts and contract rights (herein sometimes referred to
as "Receivables"), including but not limited to the Debtor's rights to payment
and the Assigned Agreement Interest, together with
(a) all claims, rights, powers or privileges and remedies of the
Debtor relating thereto or arising in connection therewith including, without
limitation, all rights of the Debtor to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option or to
give or receive any notice, consent, waiver or approval, together with full
power and authority to demand, receive, enforce, collect or receipt for any of
the foregoing or any property which is the subject of the Assigned Agreement
Interest, to enforce or execute any checks, or other instruments or orders, to
file any claims and to take any action which (in the opinion of the Secured
Party) may be necessary or advisable in connection with any of the foregoing,
(b) all liens, security, guaranties, endorsements, warranties and
indemnities and all insurance and claims for insurance relating thereto or
arising in connection therewith,
(c) all rights to property forming the subject matter of the
Receivables including, without limitation, rights to stoppage in transit and
rights to, returned or repossessed property,
(d) all writings relating thereto or arising in connection therewith
including, without limitation, all notes, contracts, security agreements,
guaranties, chattel paper and other evidence of indebtedness or security, all
powers-of-attorney, all books, records, ledger cards and invoices, all credit
information, reports or memoranda and all evidence of filings or registrations
relating thereto,
(e) all catalogs, computer and automatic machinery software and
programs, and the like pertaining, to operations by the Debtor in, on or about
any of its plants or warehouses, all sales data and other information relating
to sales or service of products now or hereafter manufactured on or about any of
its plants, and all accounting information pertaining to operations in, on or
about any of its plants, and all media in which or on which any of the
information or knowledge or data is stored or contained, and all computer
programs used for the compilation or printout of such information, knowledge,
records or data, and
(f) all accounts, contract rights, general intangibles and other
property rights of any nature whatsoever arising out of or in connection with
the foregoing, including without limitation, payments due and to become due,
whether as part of the Assigned Agreement Interest or as repayments,
reimbursements, contractual obligations, indemnities, damages or otherwise;
(iii) all of the Debtor's right, title, and market in and to any shares of
capital stock of any subsidiary corporation (collectively, the "Subsidiaries")
and the certificates representing any such shares, together with all goods,
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Inventory, Equipment, Receivables, and all other personal property of the
Subsidiaries;
(iv) all patents, trademarks, trade secrets, copyrights, rights to hardware
or software, and any other intellectual property rights of any description
whatsoever, whether owned or licensed by the Debtor;
(v) all other personal property of the Debtor of any nature whatsoever,
including, without limitation, all accounts, bank accounts, deposits, credit
balances, contract rights, inventory, general intangibles, goods, equipment,
instruments, chattel paper, machinery, furniture, furnishings, fixtures, tools,
supplies, appliances, plans and drawings, together with all customer and
supplier lists and records of the business, and all property from time to time
described in any financing statement (UCC-1) signed by the Debtor naming the
Secured Party as secured party; and
(vi) all items of collateral hereafter acquired, credited or arising and
all additions, accessions, replacements, substitutions or improvements and all
products and proceeds including, without limitation, proceeds of insurance, of
any and all of the Collateral described in clauses (i) through (iv) above.
"Instrument" shall have the meaning specified in Article 3 of the Uniform
Commercial Code, as in effect from time to time in the State of New York and
shall also include any other writing which evidences a right to the payment of
money and is not itself a security agreement or lease and is of a type which is
in the ordinary course of business transferred by delivery with any necessary
endorsement or assignment.
"Lien" means any mortgage, pledge, hypothecation, assignment, security
interest, deposit arrangement, encumbrance (including any easement, right of
way, zoning restriction and the like), lien (statutory or other) or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease involving substantially the same economic effect
as any of the foregoing and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction).
"Permitted Liens" means:
(a) Liens for taxes, assessments or other governmental charges or levies
not at the time delinquent or thereafter payable without penalty or being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with generally accepted accounting principles shall have
been set aside on its books;
(b) Liens of carriers, warehousemen, mechanics, materialman and landlords
incurred in the ordinary course of business for sums not overdue or being
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on its books;
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(c) Liens (other than Liens arising under the Employee Retirement Income
Security Act of 1974, as amended, or Section 412(n) of the Internal Revenue Code
of 1986, as amended) incurred in the ordinary course of business in connection
with workers' compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(d) judgment Liens in existence less than 30 days after the entry thereof
or with respect to which execution has been stayed or which do not exceed
$100,000 in the aggregate;
(e) ground leases in respect of real property on which facilities owned or
leased by the Debtor or any of its subsidiaries are located;
(f) easements, rights-of-way, restrictions, minor defects or irregularities
in title and other similar charges or encumbrances not interfering in any
material respect with the business of the Debtor and its subsidiaries taken as a
whole;
(g) any interest or title of a lessor secured by a lessor's interest under
any lease of real property on which facilities owned or leased by the Debtor or
any of its Subsidiaries are located;
(h) leases or subleases granted to others not interfering in any material
respect with the business of the Debtor and its Subsidiaries taken as a whole;
(i) a Lien on any asset securing indebtedness (including capitalized lease
obligations) incurred or assumed for the purpose of financing the purchase price
(including capitalized lease payments in the nature thereof) of such asset,
provided that such Lien attaches only to the asset acquired with the proceeds of
such indebtedness and attaches concurrently with or within ten (10) days
following the acquisition thereof; and
(j) a Lien existing on the date hereof but only to the extent and as
expressly disclosed in the schedule of Permitted Liens annexed to the Note.
"Person" means any natural person, corporation, firm, association,
partnership, joint venture, limited liability company, joint-stock company,
trust, unincorporated organization, government, governmental agency or
subdivision, or any other entity, whether acting in an individual, fiduciary or
other capacity.
"Receivables" has the meaning specified therefor in clause (ii) of the
definition of Collateral.
"Secured Obligations" means all obligations of the Debtor, whether for
fees, expenses or otherwise, now existing or hereafter arising under this
Agreement and the Note.
Section 2. Security Interests. As security for the payment and performance
of all Secured Obligations the Debtor does hereby grant and assign to the
Secured Party a continuing security interest in all of the Collateral, whether
now existing or hereafter arising or acquired and wherever located, subject to
the priority, if any, of Permitted Liens.
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Section 3. General Representations. Warranties and Covenants. The Debtor
represents, warrants and covenants, which representations, warranties and
covenants shall survive execution and delivery of this Agreement, as follows:
(a) This Agreement is made with full recourse to the Debtor and pursuant to
and upon all the warranties, representations, covenants, and agreements on the
part of the Debtor contained herein, in the Note and otherwise made in writing
in connection herewith or therewith.
(b) Except for the security interest of the Secured Party therein, the
Debtor is, and as to Collateral acquired from time to time after the date hereof
the Debtor will be, the owner of all the Collateral free from any lien, security
interest, encumbrance or other right, title or interest of any Person (other
than Permitted Liens) and the Debtor shall defend the Collateral against all
claims and demands of all Persons at any time claiming the same or any interest
therein adverse to the Secured Party (other than Permitted Liens).
(c) There is no financing statement (or similar statement or instrument of
registration under the law of any jurisdiction) or any assignment of patent,
trademark or copyright now on file or registered in any public office covering
any interest of any kind in the Collateral, or intended to cover any such
interest, which has not been terminated or released by the secured party named
therein and so long as the Note remains outstanding or any of the Secured
Obligations of the Debtor remain unpaid, the Debtor will not execute and there
will not be on file in any public office any financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) or
statements relating to the Collateral, except (i) financing statements filed or
to be filed in respect of and covering the security interest of the Secured
Party hereby granted and provided for and (ii) as specified in Schedule 2 and
(iii) with respect to Permitted Liens.
(d) The chief executive office and chief place of business of the Debtor is
located at the address of the Debtor listed on the signature page hereof, and
the Debtor will not move its chief executive office and chief place of business
except to such new location as the Debtor may establish in accordance with the
last sentence of this Section 3(d). The originals of all Assigned Agreement
Interest and all documents (as well as all duplicates thereof) evidencing all
Receivables and all other contract rights or accounts and other property of the
Debtor and the only original books of account and records of the Debtor relating
thereto are, and will continue to be, kept at such chief executive office. The
Debtor shall establish no such new location until (i) it shall have given to the
Secured Party not less than 30 days' prior written notice of its intention to do
so, clearly describing such new location and providing such other information in
connection therewith as the Secured Party may reasonably request, and (ii) with
respect to such new location, it shall have taken such action, satisfactory to
the Secured Party (including, without limitation, all action required by Section
7 hereof), to maintain the security interest of the Secured Party in the
Receivables intended to be granted at all times fully perfected and in full
force and effect.
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(e) The Debtor has no Collateral located outside of the states of
California and Colorado.
(f) The name of the Debtor is as set forth on the signature page hereto and
the Debtor shall not change such name, conduct its business in any other name or
take title to the Collateral in any other name while this Agreement remains in
effect. The Debtor has never had any name, or conducted business under any name
in any jurisdiction, other than its name set forth on the signature page hereto,
during the past six years other than as set forth in Schedule 2 annexed hereto.
(g) At the Debtor's own expense, the Debtor will: (i) without limiting the
provisions of the Note, keep the Collateral fully insured at all times with
financially sound and responsible insurance carriers against loss or damage by
fire and other risks, casualties and contingencies and in such manner and to the
same extent that like properties are customarily so insured by other entities
engaged in the same or similar businesses similarly situated and keep adequate
insurance at all times against liability on account of damage to persons and
properties and under all applicable workers' compensation laws, by insurers and
in amounts approved by the Secured Party, for the benefit of the Debtor and the
Secured Party, (ii) upon request by the Secured Party, promptly deliver the
insurance policies or certificates thereof to the Secured Party, and (iii) keep
the Collateral in good condition at all times (normal wear and tear excepted)
and maintain same in accordance with all manufacturer's specifications and
requirements. Upon any failure of the Debtor to comply with its obligations
pursuant to this Section 3(g), the Secured Party may at its option, and without
affecting any of its other rights or remedies provided herein or as a secured
party under the Uniform Commercial Code, procure the insurance protection it
deems necessary and/or cause repairs or modifications to be made to the
Collateral and the cost of either or both of which shall be a lien against the
Collateral added to the amount of the indebtedness secured hereby and payable on
demand with interest at a rate per annum equal to 18%.
(h) The Debtor hereby assigns to the Secured Party all of Debtor's right,
title and interest in and to any and all moneys which may become due and payable
with respect to the Collateral under any policy insuring the Collateral (except
proceeds relating to tangible personal property which are applied to restoration
or replacement), including return of unearned premium, and shall cause any such
insurance company to make payment directly to the Secured Party for application
to amounts outstanding under the Note in accordance with the terms of the Note
and, to the extent not provided therein, in such order as the Secured Party
shall determine.
(i) The Debtor will not use the Collateral in violation of any statute or
ordinance or applicable insurance policy and will promptly pay all taxes and
assessments levied against the Collateral.
(j) The Debtor will not sell, transfer, change the registration, if any,
dispose of, attempt to dispose of, substantially modify or abandon the
Collateral or any part thereof other than sales of Inventory in the ordinary
course of business and the disposition of obsolete or worn-out Equipment in the
ordinary course of business.
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(k) The Debtor will not assert against the Secured Party any claim or
defense which the Debtor may have against any seller of the Collateral or any
part thereof or against any other Person with respect to the Collateral or any
part thereof.
(l) The Debtor will indemnify and hold the Secured Party harmless from and
against any loss, liability, damage, costs and expenses whatsoever arising from
the Debtor's use, operation, ownership or possession of the Collateral or any
part thereof.
(m) The Debtor will maintain the confidentiality of all customer lists and
not sell or otherwise dispose of such lists except that the Debtor shall deliver
copies thereof to the Secured Party upon its request, which may be made at any
time and from time to time after an Event of Default.
(n) The Debtor will not enter into any agreement that is inconsistent with
the Debtor's obligations under this Agreement, without the prior written consent
of the Secured Party.
Section 4. Special Provisions Concerning the Assigned Agreement Interest.
The Debtor represents, warrants and agrees as follows:
(a) The Assigned Agreement Interest constitutes the legal, valid and
binding obligations of the Debtor and, to the best of its knowledge, the other
parties thereto, enforceable in accordance with their respective terms.
(b) The Debtor will faithfully abide by, perform and discharge each and
every material obligation, covenant and agreement to be performed by the Debtor
under the Assigned Agreement Interest.
(c) The Debtor will not act or fail to act in a manner likely (directly or
indirectly) to entitle any party thereto to claim that the Debtor is in default
under the terms thereof.
(d) The Debtor will not terminate or permit the termination of any Assigned
Agreement Interest, except in accordance with its terms, other than in the
ordinary course of business or as it deems necessary or desirable in the normal
course of its business.
(e) Without the prior written consent of the Secured Party, the Debtor will
not, other than in the ordinary course of business, waive or in any manner
release or discharge any party to any Assigned Agreement Interest from any of
the material obligations, covenants, conditions and agreements to be performed
by it under such Assigned Agreement Interest including, without limitation, the
obligation to make all payments in the manner and at the time and places
specified.
(f) If the Secured Party so requests after the occurrence of an Event of
Default and, if prior to the Maturity Date, acceleration of the Note
("Acceleration"), the Debtor will hold any payments received by it which are
assigned and set over to the Secured Party by this Agreement for and on behalf
of the Secured Party and turn them promptly over to the Secured Party forthwith
in the same form in which they are received (together with any necessary
endorsement) for application to amounts outstanding under the Note in accordance
with the terms of the Note and, to the extent not provided therein, in such
order as the Secured Party shall determine.
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(g) The Debtor will appear in and defend every action or proceeding arising
under, growing out of or in any manner connected with the Assigned Agreement
Interest or the obligations, duties or liabilities of the Debtor and any
assignee thereunder.
(h) Should the Debtor fail to make any payment or to do any act as herein
provided after 15 day's notice by the Secured Party, the Secured Party may (but
without obligation on the Secured Party's part to do so and without notice to or
demand on the Debtor and without releasing the Debtor from any obligation
hereunder) make or do the same in such manner and to such extent as the Secured
Party may deem necessary to protect the security interests provided hereby,
including specifically, without limiting the general powers, the right to appear
in and defend any action or proceeding purporting to affect the security
interests provided hereby and the Debtor, and the Secured Party may also perform
and discharge each and every obligation, covenant and agreement of the Debtor
contained in any Assigned Agreement Interest and, in exercising any such powers,
pay necessary costs and expenses, employ counsel and incur and pay reasonable
attorneys' fees.
(i) Upon the request of the Secured Party, the Debtor will send to the
Secured Party copies of all notices, documents and other papers furnished or
received by it with respect to any of the Assigned Agreement Interest.
Section 5. Special Provisions Concerning Receivables.
(a) As of the time when each Receivable arises, the Debtor shall be deemed
to have warranted as to each such Receivable that such Receivable and all papers
and documents relating thereto are genuine and in all respects what they purport
to be, and that all papers and documents relating thereto:
(i) will be signed by the account debtor named therein (or such
account debtor's duly authorized agent) or otherwise be binding on the account
debtor;
(ii) will represent the genuine, legal, valid and binding obligation
of the account debtor evidencing indebtedness unpaid and owed by such account
debtor arising out of the performance of labor or services or the sale and
delivery of merchandise or both;
(iii) to the extent evidenced by writings, will be the only original
writings evidencing and embodying such obligation of the account debtor named
therein; and
(iv) will be in compliance and will conform with all applicable
federal, state and local laws (including applicable usury laws) and applicable
laws of any relevant foreign jurisdiction.
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(b) The Debtor will keep and maintain at the Debtor's own cost and expense
satisfactory and complete records of the Receivables, including, but not limited
to, records of all payments received, all credits granted thereon, all
merchandise returned and all other dealings therewith, and the Debtor will make
the same available to the Secured Party, at the Debtor's own cost and expense,
at any and all reasonable times upon demand of the Secured Party. The Debtor
shall, at the Debtor's own cost and expense, deliver the Receivables (including,
without limitation, all documents evidencing the Receivables) and such books and
records to the Secured Party or to its representatives upon its demand at any
time after the occurrence of an Event of Default and, if prior to the Maturity
Date, Acceleration. If the Secured Party shall so request, the Debtor shall
legend, in form and manner satisfactory to the Secured Party, the Receivables
and other books, records and documents of the Debtor evidencing or pertaining to
the Receivables with an appropriate reference to the fact that the Receivables
have been assigned to the Secured Party and that the Secured Party has a
security interest therein.
(c) Except in the ordinary course of business prior to an Event of Default
and, if prior to the Maturity Date, Acceleration, the Debtor will not rescind or
cancel any indebtedness evidenced by any Receivable or modify any term thereof
or make any adjustment with respect thereto, or extend or renew the same, or
compromise or settle any dispute, claim, suit or legal proceeding relating
thereto, or sell any Receivable or interest therein, without the prior written
consent of the Secured Party, except that the Debtor may grant discounts in
connection with the prepayment of any Receivable in an amount which is customary
in the line of business in which the Debtor is engaged and consistent with the
Debtor's past practices.
(d) The Debtor will duly fulfill all obligations on its part to be
fulfilled under or in connection with the Receivables and will do nothing to
impair the rights of the Secured Party in the Receivables.
(e) The Debtor shall endeavor to collect or cause to be collected from the
account debtor named in each Receivable, as and when due (including, without
limitation, Receivables which are delinquent, such Receivables to be collected
in accordance with generally accepted lawful collection procedures) any and all
amounts owing under or on account of such Receivable, and credit forthwith (on a
daily basis) upon receipt thereof all such amounts as are so collected to the
outstanding balance of such Receivable. The costs and expenses (including
attorneys' fees) of collection, whether incurred by the Debtor or the Secured
Party, shall be borne by the Debtor.
(f) Upon request of the Secured Party, at any time when an Event of Default
and, if prior to the Maturity Date, Acceleration shall exist, the Debtor shall
promptly notify (in manner, form and substance satisfactory to the Secured
Party) all Persons who are at any time obligated under any Receivable that the
Secured Party possesses a security interest in such Receivable and that all
payments in respect thereof are to be made to such account as the Secured Party
directs.
Section 6. Special Provisions Concerning Equipment. The Debtor will do
nothing to impair the rights of the Secured Party in the Equipment. The Debtor
shall cause the Equipment to at all times constitute and remain personal
property. The Debtor will at all times keep all Equipment insured with
financially responsible insurance companies in favor of the Secured Party, at
the expense of the Debtor, against such perils and in such amounts as are
customary for Persons in the same general line of business as the Debtor and
operating in similar geographic locations and markets. If the Debtor shall fail
to insure the Equipment to the Secured Party's satisfaction, or if the Debtor
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shall fail so to endorse and deposit all policies or certificates with respect
thereto, the Secured Party shall have the right (but shall be under no
obligation) to procure such insurance and the Debtor agrees to reimburse the
Secured Party for all costs and expenses of procuring such insurance, together
with interest at a rate per annum equal to 18%. The Secured Party may apply any
proceeds of such insurance when received by it pursuant to the terms of this
Section 6 or Section 3(h) hereof toward the payment of any of the Secured
Obligations, whether or not the same shall then be due. The Debtor retains all
liability and responsibility in connection with the Equipment and the liability
of the Debtor to pay the Secured Obligations shall in no way be affected or
diminished by reason of the fact that such Equipment may be lost, destroyed,
stolen, damaged or for any reason whatsoever unavailable to the Debtor.
Section 7. Financing Statements; Documentation; Stamp Taxes.
(a) The Debtor will, at its own expense, make, execute, endorse,
acknowledge, file and/or deliver to the Secured Party from time to time such
lists, descriptions and designations of Inventory, warehouse receipts, bills of
lading, documents of title, vouchers, invoices, schedules, confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates, reports and other assurances or instruments and take
such further steps relating to the Collateral and other property or rights
covered by the security interest hereby granted, which the Secured Party deems
appropriate or advisable to perfect, preserve or protect its security interest
in the Collateral. The Debtor hereby constitutes the Secured Party its
attorney-in-fact to execute and file in the name and on behalf of the Debtor
such additional financing statements as the Secured Party may request, such acts
of such attorney being hereby ratified and confirmed; such power, being coupled
with an interest, is irrevocable until the Secured Obligations are paid in full.
Further, to the extent permitted by applicable law, the Debtor authorizes the
Secured Party to file any such financing statements without the signature of the
Debtor. The Debtor will pay all applicable filing fees and related expenses in
connection with any such financing statements.
(b) The Debtor agrees to procure, pay for, affix to any and all documents
and cancel any documentary tax stamps required by and in accordance with,
applicable law and the Debtor will indemnify and hold the Secured Party harmless
against any liability (including interest and penalties) in respect of such
documentary stamp taxes.
Section 8. Special Provisions Concerning Remedies and Sale. In addition to
any rights and remedies now or hereafter granted under applicable law and not by
way of limitation of any such rights and remedies, upon the occurrence of an
Event of Default and, if prior to the Maturity Date, Acceleration, the Secured
Party shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code as enacted in any applicable jurisdiction in addition to
the rights and remedies provided herein, in the Note and in any other agreement
executed in connection with the Note whereby the Debtor has granted any Lien to
the Secured Party. Without in any way limiting the foregoing, upon the giving of
notice to the Debtor of Secured Party's intent to pursue any one or all of the
following or any other remedies:
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(a) Upon the occurrence of an Event of Default and, if prior to the
Maturity Date, Acceleration, the Secured Party shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in any
applicable jurisdiction in addition to the rights and remedies provided herein,
in the Note and any other document whereby the Debtor has granted any Lien to
the Secured Party. The Secured Party shall have the right, without further
notice to, or assent by, the Debtor, in the name of the Debtor or in the name of
the Secured Party or otherwise:
(i) to ask for, demand, collect, receive, compound and give
acquittance for the Receivables or any part thereof;
(ii) to extend the time of payment of, compromise or settle for cash,
credit or otherwise, and upon any terms and conditions, any of the Receivables;
(iii) to endorse the name of the Debtor on any checks, drafts or other
orders or instruments for the payment of moneys payable to the Debtor which
shall be issued in respect of any Receivable;
(iv) to file any claims, commence, maintain or discontinue any
actions, suits or other proceedings deemed by the Secured Party necessary or
advisable for the purpose of collecting or enforcing payment of any Receivable;
(v) to make test verifications of the Receivables or any portion
thereof,
(vi) to notify any or all account debtors under any or all of the
Receivables to make payment thereof directly to the Secured Party for the
account of the Secured Party and to require the Debtor to forthwith give similar
notice to the account debtors;
(vii) to require the Debtor forthwith to account for and transmit to
the Secured Party in the same form as received all proceeds (other than physical
property) of collection of Receivables received by the Debtor and, until so
transmitted, to hold the same in trust for the Secured Party and not commingle
such proceeds with any other funds of the Debtor;
(viii) to take possession of any or all of the Collateral and, for
that purpose, to enter, with the aid and assistance of any Person or Persons and
with or without legal process, any premises where the Collateral, or any part
thereof, are, or may be, placed or assembled, and to remove any of such
Collateral;
(ix) to execute any instrument and do all other things necessary and
proper to protect and preserve and realize upon the Collateral and the other
rights contemplated hereby;
(x) upon notice to such effect, to require the Debtor to deliver, at
the Debtor's expense, any or all Collateral to the Secured Party at a place
designated by the Secured Party; and
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(xi) without obligation to resort to other security, at any time and
from time to time, to sell, re-sell, assign and deliver all or any of the
Collateral, in one or more parcels at the same or different times, and all
right, title and interest, claim and demand therein and right of redemption
thereof, at public or private sale, for cash, upon credit or for future
delivery, and at such price or prices and on such terms as the Secured Party may
determine, with the amounts realized from any such sale to be applied to the
Secured Obligations in the manner determined by the Secured Party.
The Debtor hereby agrees that all of the foregoing may be effected without
demand, advertisement or notice (except as otherwise provided herein or as may
be required by law), all of which (except as otherwise provided) are hereby
expressly waived, to the extent permitted by law. The Secured Party shall not be
obligated to do any of the acts hereinabove authorized, but in the event that
the Secured Party elects to do any such act, the Secured Party shall not be
responsible to the Debtor except for its gross negligence or willful misconduct.
(b) The Secured Party may take legal proceedings for the appointment of a
receiver or receivers (to which the Secured Party shall be entitled as a matter
of right) to take possession of the Collateral pending the sale thereof pursuant
either to the powers of sale granted by this Agreement or to a judgment, order
or decree made in any judicial proceeding for the foreclosure or involving the
enforcement of this Agreement. If, after the exercise of any or all of such
rights and remedies, any of the Secured Obligations shall remain unpaid, the
Debtor shall remain liable for any deficiency. After the indefeasible payment in
full of the Secured Obligations, any proceeds of the Collateral received or held
by the Secured Party shall be turned over to the Debtor and the Collateral shall
be reassigned to the Debtor by the Secured Party without recourse to the Secured
Party and without any representations, warranties or agreements of any kind.
(c) Upon any sale of any of the Collateral, whether made under the power of
sale hereby given or under judgment, order or decree in any judicial proceeding
for the foreclosure or involving the enforcement of this Agreement:
(i) the Secured Party may, to the extent permitted by law, bid for and
purchase the property being sold, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property in its own absolute right
without further accountability, and may, in paying the purchase money therefor,
deliver any Note or claims for interest thereon and any other instruments
evidencing the Secured Obligations or agree to the satisfaction of all or a
portion of the Secured Obligations in lieu of cash in payment of the amount
which shall be payable thereon, and the Note and such instruments, in case the
amounts so payable thereon shall be less than the amount due thereon, shall be
returned to the Secured Party after being appropriately stamped to show partial
payment;
(ii) the Secured Party may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of assignment
and transfer of the property sold;
(iii) the Secured Party is hereby irrevocably appointed the true and
lawful attorney-in-fact of the Debtor in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and transfer of the
property thus sold and for such other purposes as are necessary or desirable to
effectuate the provisions (including, without limitation, this Section 8) of
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this Agreement, and for that purpose it may execute and deliver all necessary
deeds, bills of sale and instruments of assignment and transfer, and may
substitute one or more Persons with like power, the Debtor hereby ratifying and
confirming all that its said attorney, or such substitute or substitutes, shall
lawfully do by virtue hereof; but if so requested by the Secured Party or by any
purchaser, the Debtor shall ratify and confirm any such sale or transfer by
executing and delivering to the Secured Party or to such purchaser all property,
deeds, bills of sale, instruments or assignment and transfer and releases as may
be designated in any such request;
(iv) all right, title, interest, claim and demand whatsoever, either
at law or in equity or otherwise, of the Debtor of, in and to the property so
sold shall be divested; such sale shall be a perpetual bar both at law and in
equity against the Debtor, its successors and assigns, and against any and all
Persons claiming or who may claim the property sold or any part thereof from,
through or under the Debtor, its successors or assigns;
(v) the receipt of the Secured Party or of the officer thereof making
such sale shall be a sufficient discharge to the purchaser or purchasers at such
sale for his or their purchase money, and such purchaser or purchasers, and his
or their assigns or personal representatives, shall not, after paying such
purchase money and receiving such receipt of the Secured Party or of such
officer therefor, be obliged to see to the application of such purchase money or
be in any way answerable for any loss, misapplication or non-application
thereof; and (vi) to the extent that it may lawfully do so, and subject to any
legal requirement that the Secured Party act in a commercially reasonable
manner, the Debtor agrees that it will not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption laws, or any law
permitting it to direct the order in which the Collateral or any part thereof
shall be sold, now or at any time hereafter in force, which may delay, prevent
or otherwise affect the performance or enforcement of this Agreement, the Note
or any other agreement executed in connection with the Note whereby the Debtor
has granted any Lien to the Secured Party, and the Debtor hereby expressly
waives all benefit or advantage of any such laws and covenants that it will not
hinder, delay or impede the execution of any power granted or delegated to the
Secured Party in this Agreement, but will suffer and permit the execution of
every such power as though no such laws were in force. In the event of any sale
of Collateral pursuant to this Section, the Secured Party shall, at least 10
days before such sale, give the Debtor written, telecopied or telex notice of
its intention to sell.
Section 9. Application of Moneys.
(a) Except as otherwise provided herein or in the Note, all moneys which
the Secured Party shall receive, in accordance with the provisions hereof, shall
be applied (to the extent thereof) in the following manner: First, to the
payment of all costs and expenses reasonably incurred in connection with the
administration and enforcement of, or the preservation of any rights under, this
Agreement or any of the reasonable expenses and disbursements of the Secured
Party (including, without limitation, the fees and disbursements of its counsel
and agents); Second, to the payment of all Secured Obligations arising out of
the Note in accordance with the terms of the Note and, if not therein provided,
in such order as the Secured Party may determine; and Third, to the payment of
all other Secured Obligations in such order as the Secured Party may determine.
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(b) If after applying any amounts which the Secured Party has received in
respect of the Collateral any of the Secured Obligations remain unpaid, the
Debtor shall continue to be liable for any deficiency, together with interest.
Section 10. Fees and Expenses, etc. Any and all fees, costs and expenses of
whatever kind or nature, including but not limited to the reasonable attorneys'
fees and legal expenses incurred by the Secured Party in connection with the
collection, administration or enforcement of its rights under this Agreement,
the filing or recording of any documents (including all taxes in connection
therewith) in public offices, the payment or discharge of any taxes, counsel
fees, maintenance fees, fees and other costs relating to the encumbrances or
otherwise protecting, maintaining, preserving the Collateral, or in defending or
prosecuting any actions or proceedings arising out of or related to the
Collateral, shall be borne and paid by the Debtor on written demand by the
Secured Party and until so paid shall be added to the principal amount of the
Secured Obligations and shall bear interest at a rate per annum equal to 18%. In
addition, the Debtor will pay, and indemnify and hold the Secured Party harmless
from and against, any and all liabilities, obligations, losses, damages
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the Collateral, including (without
limitation) claims of patent or trademark infringement and any claim of unfair
competition or anti-trust violation.
Section 11. Miscellaneous.
(a) All notices, communications and distributions hereunder shall be in
writing (including telecopied communication) and mailed by certified mail,
telecopied, personally delivered or delivered by Federal Express or other
reputable overnight courier service, if to the Debtor addressed to it at its
address set forth opposite its signature below, if to the Secured Party,
addressed to it at its address set forth opposite its signature below, or as to
either party at such other address as shall be designated by such party in a
written notice to such other party complying as to delivery with the terms of
this Section. All such notices and other communications shall be effective (i)
if mailed by certified mail, three days after the date of deposit thereof with
the U.S. Postal Service, properly addressed with postage prepaid, (ii) if
telecopied, upon receipt by the addressee, (iii) if personally delivered, upon
such delivery and (iv) if delivered by overnight courier service, on the
business day following delivery thereof to such courier service in time for
next-business-day delivery.
(b) No delay on the part of the Secured Party in exercising any of its
rights, remedies, powers and privileges hereunder or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by the Debtor and the Secured Party. No
notice to or demand on the Debtor in any case shall entitle the Debtor to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of any of the rights of the Secured Party to any other or
further action in any circumstances without notice or demand.
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(c) The obligations of the Debtor hereunder shall remain in full force and
effect without regard to, and shall not be impaired by, (i) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or the like of the Debtor; (ii) any exercise or non-exercise, or any waiver of,
any right, remedy, power or privilege under or in respect of the Note, this
Agreement or any other agreement executed in connection with the Note whereby
the Debtor has granted any Lien to the Secured Party or any other agreement
executed in connection with any of the foregoing, the Secured Obligations or any
security for any of the Secured Obligations; or (iii) any amendment to or
modification of any of the foregoing; whether or not the Debtor shall have
notice or knowledge of any of the foregoing. The rights and remedies of the
Secured Party herein provided are cumulative and not exclusive of any rights or
remedies which the Secured Party would otherwise have.
(d) This Agreement shall be binding upon the Debtor and its successors and
assigns and shall inure to the benefit of the Secured Party and its successors
and assigns, except that the Debtor may not transfer or assign any of its
obligations, rights or interest hereunder without the prior written consent of
the Secured Party and any such purported assignment by the Debtor shall be void.
All agreements, representations and warranties made herein shall survive the
execution and delivery of this Agreement.
(e) The descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
(f) Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(g) All rights, remedies and powers provided by this Agreement may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law, and the provisions hereof are intended to be
subject to all applicable mandatory provisions of law that may be controlling
and to be limited to the extent necessary so that they will not render this
Agreement invalid, unenforceable in whole or in part or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
(h) This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and be governed by the laws of the State
of New York except to the extent that matters of title, or creation, perfection
and priority of the security interests created hereby, or procedural issues of
foreclosure are required to be governed by the laws of the state in which the
Collateral, or part thereof, is located. EACH PARTY HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL
BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR OTHER LITIGATION BASED ON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTE OR ANY
FINANCING DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
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(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE SECURED PARTY'S ENTERING INTO THIS AGREEMENT.
(i) It is expressly agreed, anything herein, in the Note or in any other
agreement or instrument executed in connection with the Note to the contrary
notwithstanding, that the Debtor shall remain liable to perform all of the
obligations, if any, assumed by it with respect to the Collateral and the
Secured Party shall not have any obligations or liabilities with respect to any
Collateral by reason of or arising out of this Agreement, nor shall the Secured
Party be required or obligated in any manner to perform or fulfill any of the
obligations of the Debtor under or pursuant to any or in respect of any
Collateral.
(j) This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which counterparts taken
together shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
US WIRELESS DATA, INC., as Debtor
By:
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Name:
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Title:
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COMVEST CAPITAL MANAGEMENT
LLC, as Secured Party
By:
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Name:
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Title:
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Schedule 1
LOCATION OF CERTAIN INVENTORY AND EQUIPMENT COLLATERAL
Current place(s) of business of the Debtor:
Intellectual Property Registrations
Schedule 2
EXISTING FINANCING STATEMENTS
Number of Description Amount of
Date of Indebtedness Financing Financing Location
Secured Party Statement Statement Filed Collateral Of Secured
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OTHER NAMES UNDER WHICH DEBTOR HAS CONDUCTED BUSINESS