THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AND HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN
CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR
DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THIS NOTE, THE
REPAYMENT OF ALL INDEBTEDNESS EVIDENCED HEREBY AND THE EXERCISE OF
ANY RIGHT OR REMEDY HEREUNDER BY THE HOLDER HEREOF ARE SUBJECT TO
THE TERMS AND CONDITIONS SET FORTH IN THAT CERTAIN SUBORDINATION
AGREEMENT, DATED ON OR ABOUT SEPTEMBER 30, 2017, BY AND BETWEEN
CROSSROADS FINANCIAL GROUP, LLC AND THE INITIAL HOLDER HEREOF. IN
THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF SUCH SUBORDINATION
AGREEMENT AND THIS NOTE, THE TERMS OF THE SUBORDINATION AGREEMENT
SHALL GOVERN AND CONTROL.
SECURED REVOLVING PROMISSORY NOTE
Up to
US$3,000,000.00
|
October
15, 2020
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For
Value Received, MusclePharm
Corporation, a Nevada
corporation (“the
Company”), hereby
unconditionally promises to pay to the order
of Ryan
Drexler (“Lender”),
in lawful money of the United States of America and in immediately
available funds, the principal sum of three million dollars
(US$3,000,000.00), or, if less, the aggregate unpaid principal
amount of all Advances (as defined below) (the
“Revolving
Loan”), together with
accrued and unpaid Interest (as defined below) thereon and any
Costs of Collection (as defined below), due and payable on the
dates and in the manner set forth below in this Secured Revolving
Promissory Note (the “Note”).
1. Advances. The Lender may, in its sole discretion, make
one or more advances (each, an “Advance,”
and collectively, the “Advances”)
to the Company, and the Company may, to the extent that the Lender
permits in his sole discretion, borrow funds from the Lender
hereunder. While the decision to make any Advance is at all times
within the sole discretion of the Lender, whether the limitation
set forth in clause 1(c) below is satisfied or not, it is
understood and agreed by the Company that, as further limitations
on the making of Advances by the Lender:
(a) each request for an Advance shall be made by
the Company in writing, delivered to the Lender at least one (1)
business days prior to the requested date of such Advance, and
shall specify the date of such Advance and the amount of such
Advance,
(b) requests may only be made if no Event of
Default (as defined below) has occurred and is
continuing,
(c) each request shall be in the amount of at
least ten thousand dollars (US$10,000) and shall be in
thousand-dollar increments, and
(d) the aggregate principal amount of all
Advances outstanding at any time, taking into account any and all
Advances and repayments made as of any date, shall in no event
exceed three million dollars (US$3,000,000.00).
The Lender shall, and is hereby authorized to,
record on the schedule attached hereto the date and amount of each
Advance and the date and amount of each principal payment
hereunder, provided, that, the
failure of the Lender to record any Advance shall have no effect on
the obligation of the Company to repay the Advance or to pay any
other amount hereunder.
2. Interest. Simple interest shall accrue on the
outstanding principal amount of each Advance from the date of such
Advance until payment of such Advance at a rate of twelve percent
(12%) per annum (“Interest”),
compounding annually. Interest shall be calculated on the basis of
a 365-day year for the actual number of days
elapsed.
3. Costs of
Collection. If an Event of
Default (as defined below) has occurred, the Company shall pay the
reasonable costs and expenses (including reasonable
attorney’s fees) incurred by the Lender in the enforcement of
the Lender’s rights hereunder (“Costs of
Collection”).
4. Repayment.
(a) All Advances made and not otherwise repaid,
if any, all accrued Interest not otherwise paid, if any, and all
accrued Costs of Collection not otherwise paid, if any (the
“Repayment
Amount”), or at the sole
discretion of the Lender, any portion of the Repayment Amount,
shall be due and payable on the earlier of (a) the Maturity Date,
as defined below, and (b) three (3) days following any demand of
the Lender (each such date, a “Repayment
Date”). Demand for
payment hereunder shall be made by notice in writing, delivered by
overnight courier to the undersigned at 4500 Park Granada,
Suite 202, Calabasas, CA 91302, or
sent by email to the chief financial officer and the then
independent directors on the Company’s board of directors
(the “Independent
Directors”), at their
email addresses used for Company business (with such demand being
deemed made and effective one (1) business day after being sent via
overnight courier, and effective on the same day it was sent (or,
if not sent on a business day, on the following business day) if
sent via email), setting out details of the amount outstanding and
the appropriate method of payment.
(b) The Company shall be entitled to prepay any
outstanding principal amount of any Advances without premium or
penalty following at least one (1) day’s advance written
notice to the Lender, provided, that, any
such prepayment shall be accompanied by a payment by the Company of
all accrued and unpaid Interest and Costs of Collection on such
prepaid principal.
(c) Unless earlier due and payable as provided
in Section 4(a), the Repayment Amount shall be due and payable on
the earliest of (i) March 31, 2021, (ii) immediately upon receipt
by the Company of a Notice of Acceleration (as defined below) from
the Lender as provided by Section 8(a), (iii) immediately upon the
occurrence of an Event of Default of the type described in Section
7(b) and (iv) as provided by Section 8(b) (the earliest such date
being the “Maturity
Date”).
(d) All payments by the Company under this Note
(including prepayments) shall be made without set-off or
counterclaim and be free and clear and without any deduction or
withholding for any taxes or fees of any nature whatever, unless
the obligation to make such deduction or withholding is imposed by
law. All payments hereunder shall be made in cash in immediately
available U.S. Dollars.
5. Application of
Payments. Payments made
hereunder shall be applied, first, to accrued but unpaid Costs of
Collection, if any; second, to accrued but unpaid Interest, if any;
third to unpaid principal on the Revolving Loan, if any (beginning
with the earliest Advance for which principal remains unpaid and
continuing in chronological order to subsequent Advances). Any
excess amounts remaining after such application shall be returned
to the Company within three (3) business days.
6. Secured
Note. This Note is the
Note referred to in, and is executed and delivered in connection
with, that certain Fifth Amended And Restated Security Agreement
dated as of even date herewith between the Company and the Lender
(as the same may from time to time be amended, modified or
supplemented or restated, the “Security
Agreement”). This Note
and all obligations of the Company hereunder, including without
limitation all Advances, all Interest, and any Costs of Collection,
are secured by the Collateral, as such term is defined in the
Security Agreement. No reference in this Note to the Security
Agreement shall impair the obligation of the Company, which is
absolute and unconditional, to pay all amounts under this Note
strictly in accordance with the terms of this
Note.
7. Default. There shall exist an event of default
hereunder (an “Event of
Default”)
if
(a) the Company fails to repay or pay any and
all unpaid principal, accrued and unpaid Interest, accrued and
unpaid Costs of Collection and all other amounts owing under this
Note and the Security Agreement when due and payable pursuant to
the terms of this Note, unless such failure is cured within three (3) days of the
date the Lender has given notice of such breach to the
Company;
(b) the Company or any of its subsidiaries files
any petition or action for relief under any bankruptcy,
reorganization, insolvency or moratorium law or any other law for
the relief of, or relating to, debtors, now or hereafter in effect,
or makes any general assignment for the benefit of
creditors;
(c) an involuntary petition is filed against the
Company or any of its subsidiaries (unless such petition is
dismissed or discharged within sixty (60) days) under any
bankruptcy statute or similar law now or hereafter in effect, or a
custodian, receiver, trustee, assignee for the benefit of creditors
(or other similar official) is appointed to take possession,
custody or control of any property of the
Company;
(d) the Company breaches any other material term
of this Note or the Security Agreement (unless, in the case of any
curable material breach, such material breach is cured within
thirty (30) days of the earlier of the date on which (x) the Lender
has given notice of such breach to the Company and (y) the Company
has actual knowledge of such breach);
(e) the Company amends or modifies the terms of
any existing indebtedness in a manner that increases the principal
amount thereof or the interest rate applicable thereto, accelerates
the maturity of the obligations thereunder or otherwise adversely
affects the Lender; provided,
that, the foregoing shall not
constitute an Event of Default if approved by a majority of the
Independent Directors;
(f) a final judgment or judgments for the
payment of money aggregating in excess of $1,000,000 that are not
covered by insurance or an indemnity from a creditworthy party are
rendered against the Company and/or any of its subsidiaries and
which judgments are not, within thirty (30) days after the entry
thereof, bonded, discharged or stayed pending appeal, or are not
discharged within thirty (30) days after the expiration of such
stay; provided,
that, the foregoing shall not
constitute an Event of Default if such judgment is entered in
connection with a matter for which there is a reserve as of the
date hereof or that, as of the date hereof, is otherwise pending or
has been threatened against the Company in
writing;
(g) the Company fails to pay, when due, giving
effect to any applicable grace period, any payment with respect to
any funded indebtedness in excess of $500,000 due to any third
party (other than, with respect to unsecured funded indebtedness
only, payments contested by the Company in good faith by proper
proceedings and with respect to which adequate reserves have been
set aside for the payment thereof in accordance with U.S. generally
accepted accounting principles) or is otherwise in breach or
violation of any agreement for monies owed or owing in an amount in
excess of $500,000, other than (i) unsecured trade obligations in
the ordinary course of business, which breach or violation permits
the other party thereto to declare a default or otherwise
accelerate amounts due thereunder or (ii) matters disclosed in the
Company’s securities filings; provided,
that, the foregoing shall not
constitute an Event of Default if such failure to pay is approved
in writing by a majority of the Independent Directors;
or
(h) there exists any circumstances or events
that would, with or without the passage of time or the giving of
notice, result in a default or event of default under any agreement
binding the Company or any subsidiary, which default or event of
default would or is likely to have a material adverse effect on the
business, assets, operations or financial condition of the Company
and its subsidiaries, taken as a whole; provided,
that, the foregoing shall not
constitute an Event of Default if such circumstances or events are
undertaken, caused, approved, consented to or voted in favor of by
the Lender in his capacity as an employee, officer or director of
the Company.
8. Acceleration and
Remedies.
(a) Upon the occurrence and during the
continuance of any Event of Default described in clause (a) or
clauses (d) through (h) of Section 7 of this Note, the Lender shall
be entitled to accelerate the entire indebtedness hereunder,
including all principal, all Interest and all Costs of Collection,
which shall become due and payable following receipt by the Company
of written notice of the occurrence of said Event of Default
(“Notice of
Acceleration”).
(b) Upon the occurrence and during the
continuance of any Event of Default described in clauses (b) or (c)
of Section 7 of this Note, the entire indebtedness hereunder,
including all principal, all Interest, and all Costs of Collection,
shall be automatically accelerated, and shall be immediately due
and payable, without any demand, notice, or other action of the
Lender or any other person or entity.
(c) Notwithstanding anything to the contrary in
this Note or any other agreement, instrument or document, upon the
occurrence and during the continuance of any Event of Default, the
Lender may exercise any and all rights and remedies it may have
under this Note, the Security Agreement, or applicable
law.
9. Covenants.
(a) Restrictions on Additional
Indebtedness and Liens and Subordination. The Company may not incur or suffer to exist any
Indebtedness (as defined below) other than Permitted Indebtedness
(as defined below) or any Lien (as defined below) other than
Permitted Liens (as defined below).
(i) “Indebtedness” shall mean any and all indebtedness for
borrowed money; all obligations in respect of any deferred purchase
price; all obligations in respect of capital leases; all
reimbursement obligations in respect of letters of credit, surety
bonds and similar instruments; all obligations evidenced by notes,
bonds, loan agreements, debentures and similar instruments; and all
guarantee obligations and contingent obligations in respect of any
of the foregoing.
(ii) “Permitted
Indebtedness” shall mean
(a) Indebtedness evidenced by this Note; (b) Indebtedness in
respect of taxes, fees, assessments or other governmental charges
or levies, either not delinquent or being contested in good faith
by appropriate proceedings; provided,
that, the Company
maintains adequate reserves therefor; (c) Indebtedness existing as
of the date hereof and set forth on the schedule of Permitted
Indebtedness attached hereto, or pursuant to an instrument set
forth on such schedule or disclosed in the Company’s
securities filings; (d) Indebtedness to trade creditors (including
suppliers) incurred in the ordinary course of business, including
Indebtedness incurred in the ordinary course of business with
corporate credit cards; (e) extensions, refinancings, repayment and
renewals of the obligations under this Note and under any Permitted
Indebtedness described in clauses (c) or (d)
above, provided,
that, the principal amount
is not increased or the terms modified to impose materially more
burdensome terms upon the Company unless such increase or
modification is approved by a majority of the Independent
Directors; (f) Indebtedness incurred after the date of this Note
and approved by a majority of the Independent Directors; and (g)
Indebtedness evidenced by that certain Amended and Restated
Convertible Secured Promissory Note dated August 21, 2020 issued by
the Company to the Lender.
(iii) “Lien” shall mean any lien, claim, encumbrance or
similar interest in or on any asset, including without limitation
any security interest or mortgage.
(iv) “Permitted
Liens” shall mean (a)
Liens securing Indebtedness evidenced by this Note; (b) Liens for
taxes, fees, assessments or other governmental charges or levies,
either not delinquent or being contested in good faith by
appropriate proceedings, provided,
that, the Company
maintains adequate reserves therefor; (c) claims of materialmen,
mechanics, carriers, warehousemen, processors or landlords arising
out of operation of law so long as the obligations secured thereby
(i) are not past due or (ii) are being properly contested and for
which the Company has established adequate reserves; (d) Liens
consisting of deposits or pledges made in the ordinary course of
business in connection with workers’ compensation,
unemployment insurance, social security and similar laws; (e) Liens
on equipment (including capital leases) to secure purchase money
Indebtedness existing as of the date hereof, or any permitted
refinancing thereof, so long as such security interests do not
apply to any property of the Company other than the equipment so
acquired, and the Indebtedness secured thereby does not exceed the
cost of such equipment, and provided,
that, any extension,
renewal or replacement Lien shall be limited to the property
encumbered by the existing Lien and the principal amount of the
Indebtedness being extended, renewed, or refinanced (as may have
been reduced by any payment thereon) does not increase; (f) Liens
on accounts, inventory, machinery, equipment, instruments,
documents, chattel paper, general intangibles and other assets to
secure purchase money Indebtedness under agreements set forth on
the schedule of Permitted Indebtedness attached hereto; (g) Liens
to secure the obligations under agreements set forth on the
schedule of Permitted Liens attached hereto or to secure Permitted
Indebtedness; and (h) Liens securing Indebtedness evidenced by that
certain Amended and Restated Convertible Secured Promissory Note
dated as of August 21, 2020 issued by the Company to the
Lender.
10. Waivers. The Company, for itself and its legal
representatives, successors and assigns, hereby expressly waives
demand, protest, presentment, notice of dishonor, notice of
acceptance, and notice of protest, and all other demands and
notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note.
11. Transfer; Successors and
Assigns. The terms and
conditions of this Note shall inure to the benefit of and be
binding upon the respective successors and assigns of the Company
and the Lender. Notwithstanding the foregoing, the Lender may not
assign, pledge or otherwise transfer this Note without the prior
written consent of the Company. Subject to the preceding sentence,
this Note may be transferred only upon surrender of the original
Note for registration of transfer, duly endorsed, or accompanied by
a duly executed written instrument of transfer in form satisfactory
to the Company. Thereupon, a new note for the same principal amount
and interest will be issued to, and registered in the name of, the
transferee. Interest and principal are payable only to the
registered holder of this Note.
12. Governing
Law. This Note shall be
governed by and construed in accordance with the laws of the State
of California (without giving effect to any conflict of laws
principles that would require application of the laws of another
jurisdiction).
13. Jurisdiction. Each
of the Company and the Lender irrevocably submits to the
jurisdiction of the courts of the State of California and of the
United States sitting in the State of California, and of the courts
of its own corporate or individual domicile with respect to actions
or proceedings brought against it as a defendant, for purposes of
all proceedings. Each of the Company and the Lender irrevocably
waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any
proceeding and any claim that any proceeding has been brought in an
inconvenient forum. Any process or summons for purposes of any
proceeding may be served on the Company or the Lender, as
applicable, by mailing a copy thereof by registered mail, or a form
of mail substantially equivalent thereto, addressed to it at its
address as provided for notices under this
Note.
14. Waiver of Jury
Trial. Each of the Company and the
Lender hereby irrevocably waives any and all right to trial by jury
in any proceeding.
15. Notices. Any notice required or permitted by this
Note shall be in writing and shall be deemed sufficient when
delivered personally or by overnight courier or sent by email or
fax (upon customary confirmation of receipt), or forty-eight (48)
hours after being deposited in the U.S. mail as certified or
registered mail with postage prepaid, addressed to the party to be
notified at such party’s address or fax
number as set forth on the signature page, as
subsequently modified by written notice, or if no address is
specified on the signature page, at the most recent address set
forth in the Company’s books and
records; provided,
that, any notice to the
Company by the Lender also shall be provided to the Independent
Directors.
16. Amendments and
Waivers. Any term of this
Note may be amended only with the written consent of the Company
and the Lender. Any amendment or waiver effected in accordance
herewith shall be binding upon the Company, the Lender and each
transferee of this Note.
17. Entire
Agreement. This Note,
together with the Security Agreement, constitutes the entire
agreement between the Company and the Lender pertaining to the
subject matter hereof, and any and all other written or oral
agreements existing between the Company and the Lender are
expressly canceled.
18. Counterparts. This Note may be executed in any number of
counterparts, each of which will be deemed to be an original and
all of which together will constitute a single
agreement.
19. Loss of Note. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of
this Note or any Note exchanged for it, and indemnity satisfactory
to the Company (in case of loss, theft or destruction) or surrender
and cancellation of such Note (in the case of mutilation), the
Company will make and deliver in lieu of such Note a new Note of
like tenor.
20. Interest Rate
Limitation. Notwithstanding
anything to the contrary contained herein, the interest paid or
agreed to be paid under this Note shall not exceed the maximum rate
of non-usurious interest permitted by applicable law (the
“Maximum
Rate”). If the Lender
shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal amount
remaining owed under this Note or, if it exceeds such unpaid
principal amount, refunded to the Company. In determining whether
the interest contracted for, charged, or received by the Lender
exceeds the Maximum Rate, the Lender may, to the extent permitted
by applicable law, (i) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (ii)
exclude voluntary prepayments and the effects thereof, and (iii)
amortize, prorate, allocate and spread in equal or unequal parts
the total amount of interest throughout the contemplated term of
this Note.
21. Indemnification. The
Company shall, to the fullest extent permitted by law, indemnify
(but only to the extent of and out of Company assets) the Lender
against all reasonable expenses (including reasonable
attorneys’ fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the Lender in
connection with any claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative, before or by any
court or any administrative or legislative body or authority, in
which the Lender is involved, as a party or otherwise, or with
which the Lender may be threatened, arising in connection with this
Note or the Security Agreement (each, an “Action”), except to the extent the same has been
finally adjudicated to constitute fraud, gross negligence or
willful misconduct of the Lender or a breach by the Lender of this
Note or the Security Agreement. Promptly after receipt by the
Lender of notice of the commencement or threatened commencement
against it of any third party Action, the Lender will notify the
Company. The Company will be entitled to assume the defense of the
Action unless the Lender shall have reasonably concluded that a
conflict may exist between the Company and the Lender in conducting
the defense of the Action. If the Company assumes the defense of
any Action in accordance with the provisions of this Section, it
will not be liable to the Lender for any legal or other expenses
subsequently separately incurred by the Lender in connection with
the defense of such Action. The Company shall not be liable for any
settlement of a third-party Action effected without its written
consent, which consent may not be unreasonably
withheld.
22. Severability. In the event that any provision of this Note is
invalid or unenforceable under any applicable statute or rule of
law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to
conform with such statute or rule of law. Any such provision which
may prove invalid or unenforceable under any law shall not affect
the validity or enforceability of any other provision of this
Note.
[Remainder of Page Intentionally Left Blank]
IN WITNESS
WHEREOF, the undersigned have
duly executed this Secured Revolving Promissory Note as of the date
indicated herein.
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MusclePharm Corporation
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By:
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/s/ Allen Sciarillo
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Name: Allen
Sciarillo
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Title:
Chief Financial Officer
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Acknowledged and Agreed:
/s/ Ryan Drexler_____________
Schedule of Permitted Indebtedness
Purchase and Sale Agreement, dated as of January 11, 2016, between
the Company and Prestige Capital Corporation, as amended or
modified through the date hereof, and as hereafter amended or
modified with the consent of the Lender in his capacity as such or
as a director or officer of the Company, providing for aggregate
borrowings up to a maximum principal amount of $12,000,000 (as
amended).
Loan and Security Agreement, dated as of October 6, 2017, among the
Company, Canada MusclePharm Enterprises Corp. and Crossroads
Financial Group, LLC, as amended or modified through the date
hereof, and as hereafter amended or modified with the consent of
the Lender in his capacity as such or as a director or officer of
the Company, providing for aggregate borrowings up to a maximum
principal amount of $4,000,000 (as amended).
Capital leases outstanding at December 31, 2019 described in Note 6
to the Consolidated Financial Statements contained in the
Company’s 10-K for the year ended December 31,
2019.
Amounts payable under the Settlement Agreement, dated as of
September 25, 2020, between the Company and NBF Holdings Canada
Inc.
Schedule of Permitted Liens
Loan and Security Agreement, dated as of October 6, 2017, among the
Company, Canada MusclePharm Enterprises Corp. and Crossroads
Financial Group, LLC, as amended or modified through the date
hereof, and as hereafter amended or modified with the consent of
the Lender in his capacity as such or as a director or officer of
the Company, providing for aggregate borrowings up to a maximum
principal amount of $4,000,000 (as amended).
Fifth Amended and Restated Security Agreement
This
Fifth Amended and Restated Security
Agreement (this “Agreement”), dated as of October
15, 2020, is entered into between Ryan Drexler, an individual
(“Grantee”), and
MusclePharm Corporation, a
Nevada corporation, as grantor (“Grantor”).
Background
WHEREAS,
Grantor and Grantee previously entered into (i) a secured revolving
promissory note dated as of October 4, 2019 (the
“Revolver
Note”), (ii) a collateral receipt and security
agreement dated as of December 27, 2019 (the “Bond”) and (iii) a convertible
secured promissory note dated as of November 8, 2017 (the
“Convertible
Note”, together with the Revolver Note and the Bond,
the “Prior
Notes”);
WHEREAS,
Grantor and Grantee previously agreed to amend and restate the
Prior Notes to make certain amendments as set forth in that certain
Amended and Restated Convertible Secured Promissory Note, issued on
August 21, 2020 by Grantor to Grantee (the “August Note”);
WHEREAS,
Grantor and Grantee intend to enter into a secured revolving
promissory note dated as of the date hereof (the “New Revolver Note”);
and
WHEREAS,
as a condition precedent to entering into the New Revolver Note,
the parties now desire to amend and restate the Fourth Amended and
Restated Security Agreement to provide Grantee with a first
priority lien in respect of obligations due under the New Revolver
Note.
Agreement
NOW
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Grantor and Grantee
hereby amend and restate the terms of, and supersede in their
entirety, the Fourth Amended and Restated Security Agreement, and
Grantor hereby agrees, for the benefit of Grantee, as
follows:
Certain
Definitions
Section
1.01. Definitions.
The
terms “Account,”
“Equipment,”
“Inventory,” and
“Proceeds” shall
have the meanings ascribed to such terms in the UCC.
As used
herein:
“Collateral” shall have the meaning
set forth in Section 2.01.
“Dispute” means any pending,
decided or settled opposition, injunction, action, claim,
counterclaim, lawsuit, proceeding, hearing, investigation,
complaint, arbitration, mediation, demand, decree or formal
enquiry, or any other dispute, disagreement, or claim of any
kind.
“Excluded Property” means (i) any
permit, license, contract or lease to the extent that (and in each
case only for so long as) such grant of a security interest therein
or assignment thereof is prohibited by any applicable laws or is
prohibited by, or constitutes a breach or default under or results
in the termination of or gives rise to a right on the part of the
parties thereto other than Grantor to terminate, such permit,
license, contract or lease, except to the extent that such laws or
the term in such permit, license, contract or lease providing for
such prohibition, breach, default or right of termination are
ineffective or rendered unenforceable under applicable laws
(including the UCC), and (ii) any property owned by Grantor on the
date hereof or hereafter acquired that is subject to a lien
permitted to be incurred pursuant to clause (e) of the definition
of Permitted Liens contained in the August Note or the New Revolver
Note.
“Governmental Authority” means the
government of the United States or any other country, any state or
other political subdivision thereof, any supranational or
multinational authority, and any entity, body or authority
exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any of the
foregoing.
“Intellectual Property” means (a)
any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship and
derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or
hereafter existing, created, acquired or held (collectively, the
“Copyrights”);
(b) any and all trade secrets, and any and all intellectual
property rights in computer software and computer software products
now or hereafter existing, created, acquired or held; (c) any and
all design rights that may be available, now or hereafter existing,
created, acquired or held; (d) all patents, patent applications and
like protections including, without limitation, improvements,
divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same (collectively, the
“Patents”); (e)
any trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like
protections, and the entire goodwill connected with and symbolized
by such trademarks, other than any intent-to-use United States
trademark applications for which an amendment to allege use or
statement of use has not been filed under 15 U.S.C.
§ 1051I or 15 U.S.C. § 1051(d), respectively,
or if filed, has not been deemed in conformance with 15 U.S.C.
§ 1051(a) or examined and accepted, respectively, by the
United States Patent and Trademark Office, provided that, upon such filing
and acceptance, such intent-to-use applications shall be included
in the definition of Collateral (collectively, the
“Trademarks”);
(f) all mask work registrations or applications therefor or similar
rights, now owned or hereafter acquired (collectively, the
“Mask Works”);
(g) any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with the
right, but not the obligation, to sue for and collect such damages
for said use or infringement of the intellectual property rights
identified above; (h) all licenses or other rights to use any of
the Copyrights, Patents, Trademarks, or Mask Works and all license
fees and royalties arising from such use to the extent permitted by
such license or rights; (i) all amendments, extensions, renewals
and extensions of any of the Copyrights, Trademarks, Patents, or
Mask Works; and (j) all proceeds and products of the foregoing,
including without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
“Secured
Obligations” means all obligations of Grantor under or
in respect of the August Note, the New Revolver Note and this
Agreement.
“UCC” means the Uniform Commercial
Code as in effect on the date hereof in the State of New York, as
amended from time to time, and any successor statute; provided that
if by reason of mandatory provision of law, the perfection or the
effect of perfection or non-perfection of the security interest in
the Collateral is governed by the Uniform Commercial Code of
another jurisdiction, “UCC” means the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provision hereof relating to such perfection or
effect of perfection or non-perfection.
Section
1.02. Note Definitions. Unless otherwise
defined herein or the context otherwise requires, terms used in
this Agreement, including its preamble and recitals, have the
meanings provided in the August Note and/or the New Revolver Note,
as applicable.
Section
1.03. UCC Definitions. Unless otherwise
defined herein or the context otherwise requires, terms for which
meanings are provided in the UCC are used in this Agreement,
including its preamble and recitals, with such meanings; provided,
however, that the term “instrument” shall be such term
as defined in Article 9 of the UCC rather than Article 3 of the
UCC.
Section
1.04. Interpretation; Headings. Each term used
in any exhibit to this Agreement and defined in this Agreement but
not defined therein shall have the meaning set forth in this
Agreement. Unless the context otherwise requires,
(i) “including” means “including, without
limitation” and (ii) words in the singular include the
plural and words in the plural include the singular. A reference to
any party to this Agreement, the August Note, the New Revolver Note
or any other agreement or document shall include such party’s
successors and permitted assigns. A reference to any agreement or
order shall include any amendment of such agreement or order from
time to time in accordance with the terms hereof and thereof. A
reference to any legislation, to any provision of any legislation
or to any regulation issued thereunder shall include any amendment
thereto, any modification or re-enactment thereof, any legislative
provision or regulation substituted therefor and all regulations
and statutory instruments issued thereunder or pursuant thereto.
The headings contained in this Agreement are for convenience and
reference only and do not form a part of this Agreement. Section,
article and exhibit references in this Agreement refer to sections
or articles of, or exhibits to, this Agreement unless otherwise
specified.
ARTICLE II
Security
Interest
Section
2.01. Grant
of Security Interest.
(a) As collateral
security for the Secured Obligations, Grantor hereby grants to
Grantee a continuing Lien on and a continuing first priority
security interest in and lien and mortgage on all of
Grantor’s and Grantor’s subsidiaries’ right,
title, and interest in each and all of its assets and properties,
wherever the same may be now or hereafter located, whether now
owned by or owing to, or hereafter existing or hereafter acquired
by or arising in favor of, Grantor or its subsidiaries (including
under any trade name or derivations thereof), whether tangible or
intangible, and all products and Proceeds thereof (together, the
“Collateral”),
including all of the following and all products and Proceeds
thereof:
(i) all Intellectual
Property (the “Intellectual
Property Collateral”);
(ii) all
goods and Equipment, including all laboratory equipment, computer
equipment, office equipment, machinery, fixtures, vehicles
(including motor vehicles and trailers), and any interest in any of
the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions, and improvements to any of
the foregoing, wherever located;
(iii) all
Inventory, including all merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and
finished products including such inventory as is temporarily out of
Grantor’s custody or possession or in transit and including
any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any
of the foregoing and any documents of title representing any of the
above, and Grantor’s books relating to any of the
foregoing;
(iv) all
Accounts (including healthcare receivables), all contract rights or
rights to payment of money, leases, license agreements, franchise
agreements, commercial tort claims, documents, instruments
(including any promissory notes), chattel paper (whether tangible
or electronic), cash and cash equivalents, insurance policy claims
and proceeds, all general intangibles (including payment
intangibles), all letters of credit, certificates of deposit,
letters of credit rights (whether or not the letter of credit is
evidenced by a writing), securities, material intercompany notes,
and all other investment property, supporting obligations, and
financial assets, in each case, unless otherwise defined in this
Agreement, as defined in the UCC;
(v) all books, records,
databases, customer lists, credit files, computer files, programs,
printouts and other computer materials and records, and all other
information relating to the foregoing and any general intangibles
at any time evidencing or relating to any of the foregoing;
and
(vi) any
and all claims, rights and interests in any of the above and all
substitutions for, additions, attachments, accessories, accessions
and improvements to and replacements, products, proceeds and
insurance proceeds of any or all of the foregoing.
(b) With respect to the
Intellectual Property Collateral, Grantor hereby grants to Grantee
all of Grantor's and Grantor’s subsidiaries’ right,
title and interest in, to and under the Intellectual Property
Collateral, including, without limitation, the
following:
(i) Any and all claims
for damages by way of past, present and future infringements of any
of the rights in the Intellectual Property Collateral, with the
right, but not the obligation, to sue for and collect such damages
for said use or infringement of the rights in the Intellectual
Property Collateral;
(ii) All
licenses or other rights to use any of the Intellectual Property
Collateral and all license fees and royalties arising from such use
to the extent permitted by such license or rights;
(iii) All
amendments, extensions, renewals and extensions of any of the
Intellectual Property Collateral; and
(iv) All
proceeds and products of the Intellectual Property Collateral,
including without limitation all payments under insurance or any
indemnity or warranty payable in respect of any of the
foregoing.
Notwithstanding the
foregoing, in no event shall the Collateral include any Excluded
Property; provided that, notwithstanding the foregoing, a security
interest shall be, and is hereby, granted in (A) any property
immediately upon such property ceasing to be Excluded Property and
(B) any and all proceeds, products, substitutions and replacements
of Excluded Property to the extent such proceeds, products,
substitutions and replacements do not themselves constitute
Excluded Property.
(c) Grantor shall, and
shall cause its subsidiaries to, take such commercially reasonable
steps as Grantee reasonably requests in writing to obtain the
consent of, or waiver by, any person whose consent or waiver is
necessary, by contract or law, for the grant of the security
interest in the Collateral or any portion thereof, including any
license or other contract, whether now existing or entered into in
the future.
Section
2.02. Continuing
Security Interest.
(a) This Agreement
creates a continuing security interest in the Collateral and shall:
(i) remain in full force and effect until the date on which the
Secured Obligations are paid and performed in full; (ii) be binding
upon Grantor and its successors, transferees and assigns; and (iii)
inure, together with the rights and remedies of Grantee, to the
benefit of Grantee and its successors and assigns.
(b) Grantee shall have
all rights to perfect, continue, maintain, and protect
Grantee’s interest and rights under the August Note and the
New Revolver Note.
(c) Upon the date on
which the Secured Obligations are paid and performed in full, the
security interest granted herein shall automatically terminate and
all rights to the Collateral, in each case to the extent the
Collateral has not been previously disposed of or dealt with in
accordance with this Agreement or otherwise, shall revert to
Grantor. Upon any such termination, and from time to time following
such termination, Grantee will, at Grantor’s sole expense,
promptly execute and deliver to Grantor such instruments and
documents necessary and as Grantor shall reasonably request to
evidence such termination.
Section 2.03. Grantor
Remains Liable. Anything herein to the contrary
notwithstanding: (a) Grantor shall remain liable under the
contracts included in the Collateral to the extent set forth
therein and as to all other Collateral, and shall perform all of
its duties and obligations under such contracts and other
Collateral to the same extent as if this Agreement had not been
executed; (b) the exercise by Grantee of any of its rights and
remedies hereunder shall not operate to release Grantor from any of
its duties or obligations under any contracts included in the
Collateral and as to any other Collateral; and (c) Grantee shall
not have any obligation or liability under any such contracts
included in the Collateral or as to any other Collateral by reason
of this Agreement, and Grantee shall not be obligated to perform or
fulfill any of the obligations or duties of Grantor thereunder or
to take any action to collect or to (i) make any inquiry as to
the nature or sufficiency of any payment Grantor may be entitled to
receive thereunder, (ii) present or file and claim or
(iii) enforce any claim for payment assigned
hereunder.
Section
2.04. Authorization
to File Financing Statements.
(a) Grantor hereby
irrevocably appoints Grantee its attorney-in-fact and authorizes
Grantee at any time and from time to time, without notice to
Grantor, to file in any UCC jurisdiction or other appropriate
location any financing statements or other appropriate documents
and any amendments thereto and continuations thereof that: (i)
describe or indicate the Collateral (x) as all assets of
Grantor or words of similar effect, regardless of whether any
particular asset comprised in the Collateral falls within the scope
of Article 9 of the UCC or such jurisdiction, or (y) with
greater detail; and (ii) contain any other information required by
Article 9 of the UCC or other applicable law or as otherwise
appropriate for the sufficiency or filing office acceptance of any
financing statement or other document or amendment or continuation,
including, as applicable, whether Grantor is an organization, the
type of organization and any organization identification number
issued to Grantor.
(b) Grantor agrees to
furnish any such information required for purposes of
Section 2.04(a) to Grantee promptly upon request.
Section
2.05. Recordation. Grantor authorizes the
Commissioner for Patents, the Commissioner for Trademarks and the
Register of Copyrights and any other government officials to record
and register this Agreement upon request by Grantee.
Section
2.06. Other Actions. Without limiting any
other obligations of Grantor in respect of the Collateral set forth
herein or in the August Note or the New Revolver Note, Grantor
hereby agrees to take any action reasonably requested by Grantee to
effect the attachment, perfection and first priority of (subject to
any Permitted Liens (as such term is defined in the August Note
and/or the New Revolver Note)), and the ability of Grantee to
enforce, Grantee’s security interest in any and all of the
Collateral (and to pay all reasonable documented out-of-pocket
expenses incurred in connection therewith), including any of the
following: (a) comply with any provision of any law as to any
Collateral if compliance with such provision is a condition to
attachment, perfection or priority of, or ability of Grantee to
enforce, Grantee’s security interest in any material portion
of the Collateral; (b) obtain Governmental Authority and all other
third party consents and approvals, including without limitation
any consent of any licensor, lessor or other person obligated on
the Collateral, to the extent such consent or approval is a
condition to attachment, perfection or priority of, or ability of
Grantee to enforce, Grantee’s security interest in any
material portion of the Collateral; (c) furnish to Grantee, from
time to time, statements and schedules further identifying and
describing the Collateral and such other reports in connection with
the Collateral as Grantee may reasonably request, and all in
reasonable detail; and (d) at Grantee’s request, appear in
and defend any Dispute that may affect Grantor’s title to or
Grantee’s security interest in any material portion of the
Collateral.
ARTICLE III
Representations
and Warranties
Grantor
represents and warrants to Grantee as follows:
Section
3.01. Grantor’s Legal Status. (a) Except
as set forth in Schedule 3.01, Grantor’s exact legal name is
that indicated in the preamble hereto, Grantor has not, during the
past five years, been known by or used any other corporate or
fictitious name, nor been a party to any merger, acquisition or
consolidation; and (b) Grantor is an organization of the type and
organized in the jurisdiction set forth in the preamble
hereto.
Section
3.02. Ownership; No Liens. Grantor owns the
Collateral free and clear of any liens, security interests, or
other encumbrances, except for the security interest created by
this Agreement and any Permitted Liens. No effective security
agreement, financing statement, assignment, equivalent security,
lien or other instrument similar in effect covering all or any part
of the Collateral is on file or of record in any public office,
except such as may have been filed in favor of Grantee relating to
this Agreement or in connection with any Permitted
Liens.
Section
3.03. Validity.
(a) Except as set forth
on Schedule 3.03, Grantor has good title to, has
rights in, and has the power to transfer each item of the
Collateral, free and clear of any and all liens, security
interests, and other encumbrances except any Permitted Liens, and
has full power and authority to grant to Grantee the security
interest in such Collateral pursuant to this
Agreement.
(b) Subject to
Permitted Liens, this Agreement creates a valid security interest
in the Collateral securing the payment and performance in full of
the Secured Obligations. Upon filing appropriate financing
statements in the applicable filing offices, all filings,
registrations and recordings presently necessary to create and
perfect the first priority security interest granted to Grantee in
the Collateral for which a security interest may be perfected by
filing will have been taken.
Section
3.04. Authorization; Approval. No
authorization or approval by, and no notice to or filing with, any
Governmental Authority or any person: (a) is required for the grant
by Grantor of the security interest granted hereby (except as to
any later arising or acquired commercial tort claims) or for the
execution, delivery, and performance of this Agreement by Grantor;
or (b) is required for the perfection of the security interest of
Grantee in the Collateral or exercise by Grantee of its rights and
remedies hereunder, other than the filing of financing statements
in the appropriate offices, to the extent that the security
interest in the Collateral can be perfected by the filing of
financing statements.
Section
3.05. Enforceability. This Agreement is the
legal, valid and binding obligation of Grantor, enforceable against
Grantor in accordance with its terms, subject, as to enforcement of
remedies, to bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally or general
equitable principles.
ARTICLE IV
Covenants
Section
4.01. Covenants.
(a) For so long as this
Agreement shall remain in effect, Grantor hereby covenants and
agrees to abide by and perform all obligations and covenants set
forth in the August Note, the New Revolver Note and herein,
including, without limitation, the conversion obligations (as
applicable) and restrictions on indebtedness and liens set forth in
the August Note and/or the New Revolver Note.
(b) Grantor agrees that
it will not interfere with any right, power and remedy of Grantee
provided for in this Agreement or now or hereafter existing at law
or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by Grantee of any one or more of such
rights, powers or remedies.
(c) Without limiting
any of the foregoing covenants, Grantor agrees (i) not to use
or permit any of the Collateral to be used unlawfully in any
material respect or in material violation of any provision of the
August Note or the New Revolver Note or any applicable law or any
policy of insurance covering the Collateral and (ii) to pay
promptly when due all taxes now or hereafter imposed upon or
affecting any of the Collateral.
ARTICLE V
Rights
and Duties of Grantee
Section
5.01. Grantee
Appointed Attorney-in-Fact.
(a) Grantor, on behalf
of itself and its subsidiaries, hereby irrevocably appoints Grantee
(and each of Grantee’s designees) as Grantor’s and such
subsidiaries’ true and lawful attorney-in-fact, with full
authority and power in the place and stead of Grantor and such
subsidiaries and in the name of Grantor, such subsidiaries, Grantee
or otherwise, from time to time in Grantee’s discretion from
and after the occurrence and during the continuation of an Event of
Default, to take any appropriate action and to execute any
instrument that Grantee may deem reasonably necessary or advisable
to accomplish the purposes of this Agreement, including: (i) to
ask, demand, collect, enforce, sue for, recover, compromise,
receive, and acquit and receipts for monies due and to become due
under or in respect of any of the Collateral; (ii) to receive,
endorse, and collect any checks, drafts or other instruments,
documents, and chattel paper in connection with clause (a)
above; (iii) to file any claims or take any action or institute any
proceedings (or to settle, adjust or compromise any such
proceeding) that Grantee may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the
rights of Grantee with respect to any of the Collateral; (iv) to
perform the affirmative obligations of Grantor hereunder; (v) to
execute and deliver, for and on behalf of Grantor and such
subsidiaries, any and all instruments, documents, agreements, and
other writings necessary or advisable for the exercise on behalf of
Grantor and its subsidiaries of any rights, benefits or options
created or existing under or pursuant to the Collateral (including
but not limited to executing and delivering to any Governmental
Authority any correspondence or other documentation necessary or
advisable to effect a transfer of any regulatory approval); and
(vi) to execute endorsements, assignments, or other instruments of
transfer with respect to the Collateral.
(b) Notwithstanding the
foregoing, Grantee shall not be obligated to and shall have no
liability to Grantor or any third party for failure to take any of
the actions described in Section 5.01(a).
(c) Grantor hereby
acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section 5.01 is irrevocable and
coupled with an interest.
Section
5.02. Grantee May Perform. If Grantor fails to
perform any agreement or covenant contained herein, Grantee may
itself (but shall not be obliged to) perform, or cause performance
of, such agreement or covenant, and in connection therewith Grantee
shall be entitled to act as Grantor’s true and lawful
attorney-in-fact and with the full benefits of Section 5.01
hereof.
ARTICLE VI
Remedies
Section
6.01. Certain Remedies. If any Event of
Default shall have occurred and is continuing: (a) Grantee may
exercise in respect of the Collateral, in addition to other rights
available to it at law or in equity or otherwise, or under the
August Note and/or the New Revolver Note, all the rights and
remedies of a secured party on default under the UCC (whether or
not the UCC applies to the affected Collateral) or any other
applicable law, and also may: (i) require Grantor to, and Grantor
hereby agrees that it shall, at Grantor’s expense and
promptly upon request of Grantee, assemble all or part of the
Collateral as directed by Grantee and make it available to Grantee
at a place to be designated by Grantee that is reasonably
convenient to both parties; (ii) exercise any and all rights and
remedies of Grantor under or in connection with the Collateral;
(iii) foreclose or otherwise enforce Grantee’s security
interest in any manner permitted by law or provided for in this
Agreement, and sell any of all of the Collateral in any
commercially reasonable manner; and (iv) without notice or demand
of legal process, all of which are hereby expressly waived by
Grantor, enter into property where any of the Collateral is located
and take possession thereof; provided, however, that
notwithstanding the foregoing, Grantee may transfer the Collateral
or any portion thereof without any preparation or processing; and
(b) Grantor, on behalf of itself and its subsidiaries, specifically
waives (to the extent permitted by law) all rights of redemption,
stay or appraisal which it has or may have under any law now
existing or hereafter adopted.
ARTICLE VII
Miscellaneous
Section
7.01. Assignments. Grantor and Grantee shall
not be permitted to assign this Agreement without the prior written
consent of the other party and any purported assignment in
violation of this Section 7.01 shall be null and void.
Section
7.02. Successors and Assigns. The provisions
of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted
assigns.
Section
7.03. Notices. All notices and other
communications shall be given as set forth in the August Note and
the New Revolver Note.
Section
7.04. Entire Agreement. This Agreement, the
August Note and the New Revolver Note contain the entire agreement
between the Parties relating to the subject matter hereof and
supersede all oral statements and prior writings with respect
thereto.
Section
7.05. Modification. No provision hereof may be
amended or modified except by an agreement or agreements in writing
executed by Grantor and Grantee.
Section
7.06. No
Delay; Waivers; etc.
(a) No failure to
exercise and no delay in the exercise, on the part of Grantee, of
any right, remedy, power or privilege hereunder and no course of
dealing with respect thereto shall impair such right, remedy, power
or privilege or be construed to or operate as a waiver thereof, nor
shall any single or partial exercise of any power or right
hereunder preclude other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. Grantee
shall not be deemed to have waived any rights hereunder unless such
waiver shall be in writing and signed by Grantee.
(b) Grantor waives any
right to require Grantee to proceed against any person or to
exhaust any of the Collateral or to pursue any remedy in such
Grantee’s power.
Section
7.07. Severability. If any provision of this
Agreement shall be held to be invalid, illegal or unenforceable,
then, to the fullest extent permitted by law, the validity,
legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section
7.08. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State
of California (without giving effect to any conflict of laws
principles that would require application of the laws of another
jurisdiction).
Section
7.09. Jurisdiction. Grantor irrevocably
submits to the jurisdiction of the courts of the State of
California and of the United States sitting in the State of
California, and of the courts of its own corporate domicile with
respect to actions or proceedings brought against it as a
defendant, for purposes of all proceedings. Grantor irrevocably
waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any
proceeding and any claim that any proceeding has been brought in an
inconvenient forum. Any process or summons for purposes of any
proceeding may be served on Grantor by mailing a copy thereof by
registered mail, or a form of mail substantially equivalent
thereto, addressed to it at its address as provided for notices
under the August Note and the New Revolver Note.
Section
7.10. Waiver of Jury Trial. Grantor hereby irrevocably waives any and all
right to trial by jury in any proceeding.
Section
7.11. Waiver of Immunity. To the extent that
Grantor has or hereafter may be entitled to claim or may acquire,
for itself or any of its assets, any immunity from suit,
jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment
in aid of execution, or otherwise) with respect to itself or any of
its property, Grantor hereby irrevocably waives such immunity in
respect of its obligations hereunder to the fullest extent
permitted by law.
Section
7.12. Counterparts; Facsimile Signatures. This
Agreement may be executed and delivered by facsimile signature
(including PDF) and in any number of counterparts, each of which
shall be deemed an original but all of which together shall
constitute one and the same instrument.
Section 7.13. Rights
Not Exclusive. The rights, powers and remedies of Grantee
under this Agreement are cumulative and are not exclusive of, and
shall be in addition to, all rights, powers and remedies given to
Grantee by virtue of any law, the August Note and/or the New
Revolver Note, all of which rights, powers and remedies shall be
cumulative and may be exercised successively or concurrently
without impairing Grantee’s security interest in the
Collateral.
Section
7.14. Indemnification. Grantor shall, to the
fullest extent permitted by law, indemnify (but only to the extent
of and out of Grantor assets) Grantee against all reasonable
expenses (including reasonable attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by Grantee in connection with any claim, action, suit or
proceeding, whether civil, criminal, administrative or
investigative, before or by any court or any administrative or
legislative body or authority, in which Grantee is involved, as a
party or otherwise, or with which Grantee may be threatened,
arising in connection with the Prior Notes, the August Note, the
New Revolver Note or this Agreement (each, an “Action”), except to the extent the
same has been finally adjudicated to constitute fraud, gross
negligence or willful misconduct of Grantee or a breach by Grantee
of the Prior Notes, the August Note, the New Revolver Note or this
Agreement. Promptly after receipt by Grantee of notice of the
commencement or threatened commencement against it of any third
party Action, Grantee will notify Grantor. Grantor will be entitled
to assume the defense of the Action unless Grantee shall have
reasonably concluded that a conflict may exist between Grantor and
Grantee in conducting the defense of the Action. If Grantor assumes
the defense of any Action in accordance with the provisions of this
Section, it will not be liable to Grantee for any legal or other
expenses subsequently separately incurred by Grantee in connection
with the defense of such Action. Grantor shall not be liable for
any settlement of a third-party Action effected without its written
consent, which consent may not be unreasonably
withheld.
Section
7.15. Amendment and Restatement;
Reaffirmation. Grantor hereby acknowledges that it has
reviewed the terms and provisions of this Agreement and consents to
the amendment and restatement of the Fourth Amended and Restated
Security Agreement effected pursuant to this Agreement. Grantor
hereby confirms that this Agreement will continue to secure, to the
fullest extent possible in accordance with the terms hereof, the
payment and performance of the obligations set forth herein and in
the August Note and the New Revolver Note, as applicable now or
hereafter existing, and that this Agreement does not constitute a
novation of the obligations and liabilities existing under the
Fourth Amended and Restated Security Agreement or the Prior Notes.
Grantor and Grantee hereby agree that, on the date hereof, the
terms and provisions of the Fourth Amended and Restated Security
Agreement shall be and hereby are amended and restated in their
entirety by the terms, conditions and provisions of this Agreement,
and the terms and provisions of the Fourth Amended and Restated
Security Agreement shall be superseded by this
Agreement.
[Remainder
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IN
WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the date first set forth above.
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Ryan Drexler, an individual
as Grantee
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By:
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/s/ Ryan Drexler
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MusclePharm Corporation, a Nevada corporation
as
Grantor
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By:
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/s/
Allen
Sciarillo
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Name: Ryan Drexler
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Title:
Chief
Financial Officer
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[Signature
page to Fifth Amended and Restated Security Agreement]