EXHIBIT 10.2
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SECURITY AGREEMENT
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This Security Agreement ("Agreement") dated as of December 31, 2004, by
and between, True To Form, Limited, a Massachusetts corporation ("Debtor") and
wholly owned subsidiary of Global Matrechs, Inc. a Delaware corporation ("GMTH")
and Mark Allen ("Secured Party").
BACKGROUND
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A. Secured Party has extended credit to Debtor as evidenced by that
certain Secured Note dated as of December 31, 2004 (as amended, restated,
modified, or replaced from time to time, the "Note"), in connection with the
merger of True To Form, Limited, a Massachusetts corporation and TTF Acquisition
Corp. Capitalized terms used, but not defined herein, shall have the respective
meanings set forth in the Note. As used herein, property shall mean all personal
and real property of every kind and description (whether tangible or intangible)
in which a person has any right, title or interest.
B. Debtor desires to grant to Secured Party security interests in the property
described herein to secure all of GMTH's and Debtors' obligations and
undertakings to Secured Party under the Note. GMTH is the direct or indirect
owner of all of the equity interest in Debtor.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
SECTION 1 - SECURITY INTEREST
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1.1 Description: As security for the payment of all obligations and
undertakings of every kind or nature whatsoever of Debtor to Secured Party,
whether now existing or hereafter incurred, matured or unmatured, direct or
indirect, primary or secondary, related or unrelated or due or to become due,
arising under the Note, and any extensions, modifications, substitutions,
increases and renewals thereof, and substitutions therefor; the payment of all
amounts advanced by Secured Party to preserve, protect, defend, and enforce its
rights hereunder and in the following property in accordance with the terms of
this Agreement; and the payment of all expenses incurred by Secured Party in
connection therewith (collectively the "Obligations"), Debtor hereby assigns and
grants to Secured Party a continuing lien on and security interest in, upon and
to the following property (the "Collateral"):
(a) Accounts, Contract Rights, Etc. - All of Debtor's now owned and
hereafter acquired, created, or arising accounts, accounts receivable, notes
receivable, contract rights, chattel paper, documents (including documents of
title), instruments, letters of credit and goods;
(b) Inventory - All of Debtor's now owned or hereafter acquired
inventory of every nature and kind, wherever located;
(c) General Intangibles - All of Debtor's now owned and hereafter
acquired, created or arising general intangibles of every kind and description,
including, but not limited, to all existing and future rights to commissions,
customer lists, choses in action, claims, books, records, patents and patent
applications, copyrights, trademarks, tradenames, tradestyles, trademark
applications, blueprints,
drawings, designs and plans, trade secrets, contracts, contract rights, license
agreements, formulae, tax and any other types of refunds, returned and unearned
insurance premiums, rights and claims under insurance policies including without
limitation, credit insurance and key man life insurance policies, and computer
information, software, records and data;
(d) Equipment - All of Debtor's now owned and hereafter acquired
equipment, including, without limitation, machinery, vehicles, furniture and
fixtures, wherever located, and all replacements, parts, accessories,
substitutions and additions thereto;
(e) Deposit Accounts - All of Debtor's now existing and hereafter
acquired or arising deposit accounts of every nature, wherever located, and all
documents and records associated therewith;
(f) Property in Secured Party's Possession - All property of Debtor,
now or hereafter in Secured Party's possession;
(g) Investment Property - All of Debtor's now owned or hereafter
acquired investment property whether registered or unregistered;
(h) Goods - All of Debtor's now owned or hereafter acquired goods;
(i) Letter of Credit Rights - All of Debtor's now owned or
hereafter, letter of credit rights;
(j) Commercial Tort Claims - All of Debtor's commercial tort claims
against any party arising prior to, on or after the date hereof; and
(k) Proceeds - The proceeds (including, without limitation,
insurance proceeds), whether cash or non-cash, of all of the foregoing.
All terms defined in the Uniform Commercial Code as in effect in
the State of Delaware from time to time (the "UCC") and used herein shall
have the same definitions as specified in the UCC. However, if a term is
defined in Article 9 of the UCC differently than in another Article of the
UCC, the term has the meaning specified in Article 9.
1.2 Lien Documents: As Secured Party deems necessary, Debtor shall
execute and deliver to Secured Party, or have executed and delivered (all in
form and substance satisfactory to Secured Party), any agreements, documents,
instruments and writings, required to evidence, perfect or protect Secured
Party's lien and security interest in the Collateral required hereunder or as
Secured Party may request from time to time.
1.3 Other Actions:
(a) Secured Party is hereby authorized to file financing statements
and amendments to financing statements without Debtor's signature in accordance
with the UCC. Debtor hereby authorizes Secured Party to file all financing
statements and amendments to financing statements describing the Collateral in
any filing office as Secured Party, in its sole discretion may determine,
including financing statements listing "All Assets" in the collateral
description therein. Debtor agrees to comply with the requirements of all state
and federal laws and requests of Secured Party in order for Secured Party to
have and maintain a valid and perfected first security interest in the
Collateral including, without
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limitation, executing such documents as Secured Party may require to obtain
control (as defined in the UCC) over all deposit accounts, letter of credit
rights and investment property.
(b) In addition to the foregoing, Debtor shall do anything further
that may be reasonably required by Secured Party to secure Secured Party and
effectuate the intentions and objects of this Agreement, including, without
limitation, the execution and delivery of security agreements, contracts and any
other documents required hereunder. At Secured Party's request, Debtor shall
also immediately deliver (with execution by Debtor of all necessary documents or
forms to reflect, implement or enforce the security interest of Secured Party
described herein) to Secured Party all items of which Secured Party must receive
possession to obtain a perfected security interest, including without
limitation, all notes, stock powers, letters of credit, certificates and
documents of title, chattel paper, warehouse receipts, instruments, and any
other similar instruments constituting Collateral.
1.4 Filing Security Agreement: A carbon, photographic or other
reproduction or other copy of this Agreement or of a financing statement is
sufficient as and may be filed in lieu of a financing statement.
1.5 Power of Attorney: The officers of Secured Party or his
representative is hereby irrevocably made, constituted and appointed the true
and lawful attorney for Debtor (without requiring it to act as such) with full
power of substitution to do the following: (a) if Debtor refuses or is unable
for more than three (3) business days after being requested to do so, execute,
in the name of Debtor, schedules, assignments, instruments, documents and
statements that Debtor is obligated to give Secured Party hereunder or that are
necessary to perfect (or continue to evidence the perfection of such security
interest); and (c) during the continuance of any Event of Default, do such other
and further acts and deeds in the name of Debtor that Secured Party, consistent
with the requirements of the UCC, may reasonably deem necessary or desirable to
enforce any Account or other Collateral or perfect Secured Party's security
interest in the Collateral.
SECTION 2 - [INTENTIONALLY DELETED]
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SECTION 3 - COVENANTS
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3.1 Debtor covenants that:
(a) Payment of Taxes and Claims - Debtor shall pay, before they
become delinquent,
(i) all taxes, assessments and governmental charges or levies
imposed upon it or upon Debtor's property after the date hereof, and
(ii) all claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other Persons entitled to the benefit of
statutory or common law liens or other encumbrances, which, if unpaid, would
result in the imposition of a lien or other encumbrance upon its property;
provided, however, that Debtor shall not be required to pay any such tax,
assessment, charge, levy, claim or demand if the amount, applicability or
validity thereof shall at the time be contested in good faith and by appropriate
proceedings by Debtor, and if Debtor shall have set aside on its books adequate
reserves in respect thereof, if so required in accordance with GAAP; which
deferment of payment is permissible so long as no lien or other encumbrance
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has been entered and Debtor's title to, and its right to use, its property are
not materially adversely affected thereby.
(b) Property - Debtor shall maintain its property in its current
condition (normal wear and tear excepted) and make all necessary renewals,
replacements, additions, betterments and improvements thereto and will pay and
discharge when due the cost of repairs and maintenance to its property, and will
pay all rentals when due for all real estate leased by Debtor.
(c) Existence and Rights - Debtor shall do (or cause to be done) all
things necessary to preserve and keep in full force and effect its existence,
good standing, rights and franchises. Debtor shall maintain any and all
licenses, permits, franchises or other governmental authorizations necessary to
the ownership of its property or to the conduct of its businesses.
(d) Issue Taxes - Debtor shall pay all taxes (other than taxes based
upon or measured by any Secured Party's income or revenues or any personal
property tax), if any, in connection with the recording of any lien documents.
The obligations of Debtor hereunder shall survive the termination of this
Agreement.
(e) Sale of Property - Debtor shall not engage in any sale of all or
substantially all of its assets, except pursuant to a reorganization or
consolidation of Debtor with and into GMTH.
(f) Liens and Encumbrances - Debtor shall not: (i) execute a
negative pledge agreement with any Person covering any of its property or
property of the Subsidiaries , or (ii) cause or permit or agree or consent to
cause or permit in the future (upon the happening of a contingency or
otherwise), its property or property of the Subsidiaries (including, without
limitation, the Collateral), whether now owned or hereafter acquired, to be
subject to a lien, security interest or other claim or encumbrance except for
Permitted Liens. As used herein, "Permitted Liens" means: (x) liens securing
taxes, assessments or governmental charges or levies or the claims or demands of
materialmen, mechanics, carriers, warehousemen, landlords, and other like
persons, provided the payment thereof is not at the time required by Section
3.1(a); (y) liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance, social
security and other like laws; and (z) those liens, security interests or other
encumbrances existing as of the date hereof.
(g) Other Agreements - Debtor shall not become or be a party to any
contract or agreement which at the time of becoming a party to such contract or
agreement materially impairs Debtor's ability to perform under this Agreement,
or under any other instrument, agreement or document to which Debtor is a party
or by which it is or may be bound.
(h) Change of Location or Jurisdiction of Organization - Debtor
agrees that it shall not change its name or jurisdiction of organization without
ten (10) days' prior written notice to Secured Party and that if its principal
place of business changes from that indicated on the signature page of this
Agreement, Debtor will immediately notify the Secured Party in writing of the
additions or changes to the locations of the Collateral.
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SECTION 4 - DEFAULT
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4.1 Events of Default: The occurrence of an Event of Default (as
defined in the Note) shall constitute an event of default ("Event of Default")
hereunder and Secured Party shall thereupon have the option to declare Debtor in
default under this Agreement, and declare all liabilities, indebtedness and
obligations of Debtor to Secured Party under this Agreement and the Note,
whether matured or contingent, immediately due and payable including, but not
limited to, interest, principal, expenses, advances to protect Secured Party's
position and all of Secured Party's rights hereunder and thereunder, all without
demand, notice, presentment or protest or further action of any kind.
4.2 Rights and Remedies on Default: In addition to all other rights,
options and remedies granted to Secured Party under this Agreement (each of
which is also then exercisable by Secured Party), Secured Party may, upon the
occurrence of an Event of Default, exercise any other rights granted to it under
the UCC and any other applicable law, including, without limitation, the
following rights and remedies:
(a) the right to take possession of, send notices, and collect
directly the Collateral, with or without judicial process (including, without
limitation the right to notify the United States postal authority to redirect
all mail addressed to Debtor to an address designated by Secured Party);
(b) by its own means or with judicial assistance, enter Debtor's
premises and take possession of the Collateral, or render it unusable, or
dispose of the Collateral on such premises without any liability for rent,
storage, utilities or other sums, and Debtor shall not resist or interfere with
such action; or
(c) require Debtor at Debtor's expense to assemble all or any part
of the Collateral and make it available to Secured Party at any place designated
by Secured Party.
Debtor hereby agrees that a notice received by it at least ten
(10) days before the time of any intended public sale or of the time after
which any private sale or other disposition of the Collateral is to be
made, shall be deemed to be reasonable notice of such sale or other
disposition. If permitted by applicable law, any perishable inventory or
Collateral which threatens to speedily decline in value or which is sold on
a recognized market may be sold immediately by Secured Party without prior
notice to Debtor. Debtor covenants and agrees not to interfere with or
impose any obstacle to Secured Party's exercise of its rights and remedies
with respect to the Collateral, after the occurrence of an Event of Default
hereunder.
To the extent that applicable law imposes duties on Secured
Party to exercise remedies in a commercially reasonable manner, Debtor
acknowledges and agrees that it is not commercially unreasonable for
Secured Party (a) to fail to incur expenses reasonably deemed significant
by the Secured Party to prepare Collateral for disposition or otherwise to
complete raw material or work in process into finished goods or other
finished products for disposition, (b) to fail to obtain third party
consents for access to Collateral to be disposed of, or to obtain or, if
not required by other law, to fail to obtain governmental or third party
consents for the collection or disposition of Collateral to be collected or
disposed of, (c) to fail to exercise collection remedies against account
debtors or other persons obligated on Collateral or to remove liens,
security interests or other encumbrances on or any adverse claims against
Collateral, (d) to exercise collection remedies against account debtors and
other persons obligated on Collateral directly or through the use of
collection agencies and other collection specialists, (e) to advertise
dispositions of Collateral
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through publications or media of general circulation, whether or not the
Collateral is of a specialized nature, (f) to contact other persons,
whether or not in the same business as Debtor, for expressions of interest
in acquiring all or any portion of the Collateral, (g) to hire one or more
professional auctioneers to assist in the disposition of Collateral,
whether or not the collateral is of a specialized nature, (h) to dispose of
Collateral by utilizing Internet sites that provide for the auction of
assets of the types included in the Collateral or that have the reasonable
capability of doing so, or that match buyers and sellers of assets, (i) to
dispose of assets in wholesale rather than retail markets, (j) to disclaim
disposition warranties, (k) to purchase insurance or credit enhancements to
insure Secured Party against risks of loss, collection or disposition of
Collateral or to provide to Secured Party a guaranteed return from the
collection or disposition of Collateral, or (l) to the extent deemed
appropriate by Secured Party, to obtain the services of other brokers,
investment bankers, consultants and other professionals to assist Secured
Party in the collection or disposition of any of the Collateral. Debtor
acknowledges that the purpose of this paragraph is to provide
non-exhaustive indications of what actions or omissions by Secured Party
would not be commercially unreasonable in Secured Party's exercise of
remedies against the Collateral and that other actions or omissions by
Secured Party shall not be deemed commercially unreasonable solely on
account of not being indicated in this paragraph. Without limitation upon
the foregoing, nothing contained in this paragraph shall be construed to
grant any rights to Debtor or to impose any duties on Secured Party that
would not have been granted or imposed by this Agreement or by applicable
law in the absence of this paragraph.
4.3 Nature of Remedies: Secured Party shall have the right to proceed
against all or any portion of the Collateral in any order and may apply such
Collateral to the liabilities and obligations of Debtor to Secured Party in any
order. All rights and remedies granted Secured Party hereunder and under any
agreement referred to herein, or otherwise available at law or in equity, shall
be deemed concurrent and cumulative, and not alternative remedies, and Secured
Party may proceed with any number of remedies at the same time until all
existing and future liabilities and obligations of Debtor to Secured Party, are
satisfied in full. The exercise of any one right or remedy shall not be deemed a
waiver or release of any other right or remedy, and Secured Party, upon the
occurrence of an Event of Default, may proceed against Debtor, and/or the
Collateral, at any time, under any agreement, with any available remedy and in
any order.
SECTION 5 - MISCELLANEOUS
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5.1 Governing Law: This Agreement, and all related agreements and
documents, and all matters arising hereunder or related hereto, shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to its otherwise applicable principles of conflicts of laws. The
provisions of this Agreement and other agreements and documents referred to
herein are to be deemed severable, and the invalidity or unenforceability of any
provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
5.2 Waiver:
(a) No omission or delay by Secured Party in exercising any right or
power under this Agreement or any other document will impair such right or power
or be construed to be a waiver of any default, or Event of Default or an
acquiescence therein, and any single or partial exercise of any such right or
power will not preclude other or further exercise thereof or the exercise of any
other right, and
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no waiver of Secured Party's rights hereunder will be valid unless in writing
and signed by Secured Party, and then only to the extent specified.
(b) Debtor releases Secured Party, its agents, administrators and
executors, its officers, employees and agents, of and from any claims for loss
or damage resulting from acts or conduct of any or all of them arising through
the date hereof, unless caused solely by willful misconduct or gross negligence.
5.3 Modification: No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf of
the party against whom enforcement is sought.
5.4 Signatories: Each individual signatory hereto represents and
warrants that he is duly authorized to execute this Agreement on behalf of his
principal and that he executes the Agreement in such capacity and not as a
party.
5.5 Successors and Assigns: All provisions herein shall inure to,
become binding upon the successors, representatives, trustees, administrators,
executors, heirs and assigns of the parties hereto.
5.6 Consent to Jurisdiction: Debtor irrevocably consents to the
exclusive jurisdiction of the federal courts or the state courts of the State of
New York sitting in the Borough of Manhattan in connection with any and all
actions and proceedings whether arising hereunder or under any other agreement
or undertaking and irrevocably agrees to service of process to the address of
Debtor set forth herein by certified mail, return receipt requested.
5.7 WAIVER OF JURY TRIAL: DEBTOR AND SECURED PARTY HEREBY WAIVE ANY AND
ALL RIGHTS ANY MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION
COMMENCED BY OR AGAINST SECURED PARTY WITH RESPECT TO RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO.
5.8 No Marshalling. Secured Party shall not be required to marshal any
present or future collateral security (including but not limited to this
Agreement and the Collateral) for, or other assurances of payment of, the
obligations (or any of them) secured hereunder or to resort to such collateral
security or other assurances of payment in any particular order, and all of its
rights hereunder and in respect of such collateral security and other assurances
of payment shall be cumulative and in addition to all other rights, however
existing or arising. To the extent that it lawfully may, Debtor hereby agrees
that it will not invoke any law relating to the marshalling of collateral which
might cause delay in or impede the enforcement of Secured Party's rights under
this Agreement or under any other instrument creating or evidencing any of the
obligations secured hereunder or under which any of such obligations is
outstanding or by which any of such obligations is secured or payment thereof is
otherwise assured, and, to the extent that it lawfully may, Debtor hereby
irrevocably waives the benefits of all such laws.
5.9 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered by hand, sent by facsimile
transmission with confirmation of receipt, sent via a reputable overnight
courier service with confirmation of receipt requested, or mailed by registered
or certified mail (postage prepaid and return receipt requested) to the parties
at the following addresses (or at such other address for a party as shall be
specified by like
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notice), and shall be deemed given on the date on which delivered by hand or
otherwise on the date of receipt as confirmed:
To GMTH or the Debtor:
True To Form, Limited
90 Grove Street, Suite 201
Ridgefield, Connecticut 06877
Attn: Michael Sheppard
Facsimile: (203)431-8304
With a copy to:
Foley Hoag LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
Attn: David A Broadwin, Esq.
Facsimile: (617) 832-7000
To the Secured Party:
Mark Allen
91 French Avenue
Braintree, MA 02184
PH: 781.848.1174
FX: 781.848.1175
With a copy to:
Samuel Krieger
Krieger & Prager LLP
39 Broadway
New York, NY 10006
Facsimile: (212 ) 363-2999
[SIGNATURES TO FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the undersigned parties have executed this
Agreement the day and year first above written.
TRUE TO FORM, LIMITED
By: /s/ Michael Sheppard
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Name/Title: Michael Sheppard, Treasurer
Acknowledged and Accepted:
/s/ Mark J. Allen
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Mark Allen
GLOBAL MATRECHS, INC.
By: /s/ Michael Sheppard
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Name/Title: Michael Sheppard, President
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