SECURITY AGREEMENT
THIS
SECURITY AGREEMENT (as
amended, restated, supplemented or otherwise modified from time to
time, this “
Agreement ”)
dated as of _____ __, 2008 among
OPTIONS MEDIA GROUP HOLDINGS, INC. ,
a Delaware corporation
(the
“
Company ”),
OPTIONS ACQUISITION SUB, INC. (“
Options ”
,
together with Company, and each
other Person who becomes a party to this Agreement by execution of
a joinder in the form of
Exhibit A attached
hereto, is hereinafter sometimes referred to individually as a
“
Debtor ”
and, collectively, as the “
Debtors ”),
and
CUSTOMER ACQUISITION NETWORK HOLDINGS, INC.,
a
Delaware corporation (together
with its successors and assigns, the “
Secured Party ”).
W
I T N E S S E T H:
WHEREAS,
on the date hereof, pursuant to that certain merger agreement
by and among the Debtors and Options Acquisition Corp., dated
June 23, 2008 (the “
Merger Agreement ”),
whereby the Company acquired Options. Pursuant to the terms of the
Merger Agreement, the Company issued, and the Secured Party
acquired that certain senior secured promissory note in the
principal amount of $____________
(such
note, together with any promissory notes or other securities issued
in exchange or substitution therefor or replacement thereof, and as
any of the same may be amended, supplemented, restated or modified
and in effect from time to time, the “
Note ”);
WHEREAS,
each Debtor (other than the Company) from time to time party
hereto is a direct or indirect subsidiary of the Company and,
as such, will derive substantial benefit and advantage from
the financial accommodations to the Company set forth in the
Note, and it will be in each such Debtor’s direct
interest and economic benefit to assist the Company in
procuring said financial accommodations from the Secured
Party; and
NOW,
THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as
follows:
Section
1.
Definitions .
“
Accounts ”
means any “account,” as such term is defined in the
Uniform Commercial Code, and, in any event, shall include, without
limitation, “supporting obligations” as defined in the
Uniform Commercial Code.
“
As-extracted Collateral ”
means any “as-extracted collateral,” as such term is
defined in the Uniform Commercial Code.
“
Capital Lease Obligation ”
means, as to any Person, any obligation that is required to be
classified and accounted for as a capital lease on a balance sheet
of such Person prepared in accordance with GAAP, and the amount of
such obligation shall be the capitalized amount thereof, determined
in accordance with GAAP.
“
Chattel Paper ”
means any “chattel paper,” as such term is defined in
the Uniform Commercial Code, including electronic chattel
paper.
“
Collateral ”
shall have the meaning ascribed thereto in
Section 3 hereof.
“
Commercial Tort Claims ”
means “commercial tort claims”, as such term is defined
in the Uniform Commercial Code.
“
Contracts ”
means all contracts, undertakings, or other agreements (other than
rights evidenced by Chattel Paper, Documents or Instruments) in or
under which a Debtor may now or hereafter have any right, title or
interest, including, without limitation, with respect to an
Account, any agreement relating to the terms of payment or the
terms of performance thereof.
“
Copyrights ”
means any copyrights, rights and interests in copyrights, works
protectable by copyrights, copyright registrations and copyright
applications, including, without limitation, the copyright
registrations and applications listed on
Schedule III attached
hereto (if any), and all renewals of any of the foregoing, all
income, royalties, damages and payments now and hereafter due
and/or payable under or with respect to any of the foregoing,
including, without limitation, damages and payments for past,
present and future infringements of any of the foregoing and the
right to sue for past, present and future infringements of any of
the foregoing.
“
Deposit Accounts ”
means all “deposit accounts” as such term is defined in
the Uniform Commercial Code, now or hereafter held in the name of a
Debtor.
“
Documents ”
means any “documents,” as such term is defined in the
Uniform Commercial Code, and shall include, without limitation, all
documents of title (as defined in the Uniform Commercial Code),
bills of lading or other receipts evidencing or representing
Inventory or Equipment.
“
Equipment ”
means any “equipment,” as such term is defined in the
Uniform Commercial Code and, in any event, shall include, Motor
Vehicles.
“
Event of Default ”
shall have the meaning set forth in the Note.
“
Excluded Property ”
means any Contract, agreement, or Instrument entered into by any
Debtor that by its terms prohibits or requires the consent of any
Peron other than the Company and its Affiliates which has not been
obtained as a condition to the creation by such Debtor of a Lien on
any right, title, or interest in such Contract, agreement, or
Instrument to the extent, and for so long as, such prohibition is
not terminated or rendered unenforceable or otherwise deemed
ineffective by the Uniform Commercial Code, including, without
limitation, Sections 9-406, 9-407, 9-408, or 9-409 thereof, or any
successor provision or provisions or other applicable
law.
“
GAAP ”
means U.S. generally accepted accounting principles.
“
General Intangibles ”
means any “general intangibles,” as such term is
defined in the Uniform Commercial Code, and, in any event, shall
include, without limitation, all right, title and interest in or
under any Contract, models, drawings, materials and records,
claims, literary rights, goodwill, rights of performance,
Copyrights, Trademarks, Patents, warranties, rights under insurance
policies and rights of indemnification.
“
Goods ”
means any “goods”, as such term is defined in the
Uniform Commercial Code, including, without limitation, fixtures
and embedded Software to the extent included in “goods”
as defined in the Uniform Commercial Code.
“
Governmental Authority ”
means the government of the United States of America or any other
nation, or any political subdivision thereof, whether state or
local, or any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administration powers
or functions of or pertaining to government over any Debtor or any
of its Subsidiaries, or any of their respective properties, assets
or undertakings.
“
Instruments ”
means any “instrument,” as such term is defined in the
Uniform Commercial Code, and shall include, without limitation,
promissory notes, drafts, bills of exchange, trade acceptances,
letters of credit, letter of credit rights (as defined in the
Uniform Commercial Code), and Chattel Paper.
“
Inventory ”
means any “inventory,” as such term is defined in the
Uniform Commercial Code.
“
Investment Property ”
means any “investment property”, as such term is
defined in the Uniform Commercial Code.
“
Liabilities ”
shall mean all obligations, liabilities and indebtedness of every
nature of Debtors from time to time owed or owing under or in
respect of this Agreement, the Note, any of the other Security
Documents and any of the other transaction documents, as the case
may be, including, without limitation, the principal amount of all
debts, claims and indebtedness, accrued and unpaid interest and all
fees, costs and expenses, whether primary, secondary, direct,
contingent, fixed or otherwise, heretofore, now and/or from time to
time hereafter owing, due or payable whether before or after the
filing of a bankruptcy, insolvency or similar proceeding under
applicable federal, state, foreign or other law and whether or not
an allowed claim in any such proceeding.
“
Lien ”
shall mean with respect to any asset or property, any mortgage,
lien, pledge, hypothecation, charge, security interest, encumbrance
or adverse claim of any kind and any restrictive covenant,
condition, restriction or exception of any kind that has the
practical effect of creating a mortgage, lien, pledge,
hypothecation, charge, security interest, encumbrance or adverse
claim of any kind (including any of the foregoing created by,
arising under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor with respect to a
Capital Lease Obligation, or any financing lease having
substantially the same economic effect as any of the
foregoing).
“
Motor Vehicles ”
shall mean motor vehicles, tractors, trailers and other like
property, whether or not the title thereto is governed by a
certificate of title or ownership.
“
Patents ”
means any patents and patent applications, including, without
limitation, the inventions and improvements described and claimed
therein, all patentable inventions and those patents and patent
applications listed on
Schedule IV attached
hereto (if any), and the reissues, divisions, continuations,
renewals, extensions and continuations-in-part of any of the
foregoing, and all income, royalties, damages and payments now or
hereafter due and/or payable under or with respect to any of the
foregoing, including, without limitation, damages and payments for
past, present and future infringements of any of the foregoing and
the right to sue for past, present and future infringements of any
of the foregoing.
“
Permitted Lien ”
shall mean:
(i)
Liens
created by this Agreement;
(ii)
Liens
for taxes or other governmental charges not at the time due
and payable, or which are being contested in good faith by
appropriate proceedings diligently prosecuted, so long as
foreclosure, distraint, sale or other similar proceedings have
not been initiated, and in each case for which the Company and
its Subsidiaries maintain adequate reserves in accordance with
GAAP in respect of such taxes and charges;
(iii)
Liens
arising in the ordinary course of business in favor of
carriers, warehousemen, mechanics and materialmen, or other
similar Liens imposed by law, which remain payable without
penalty or which are being contested in good faith by
appropriate proceedings diligently prosecuted, which
proceedings have the effect of preventing the forfeiture or
sale of the property subject thereto, and in each case for
which adequate reserves in accordance with GAAP are being
maintained;
(iv)
Liens
arising in the ordinary course of business in connection with
worker’s compensation, unemployment compensation and
other types of social security (excluding Liens arising under
ERISA);
(v)
Attachments,
appeal bonds (and cash collateral securing such bonds),
judgments and other similar Liens, for sums not exceeding
$250,000 in the aggregate for the Company and its
Subsidiaries, arising in connection with court
proceedings,
provided that
the execution or other enforcement of such Liens is effectively
stayed;
(vi)
Easements,
rights of way, restrictions, minor defects or irregularities
in title and other similar Liens arising in the ordinary
course of business and not materially detracting from the
value of the property subject thereto and not interfering in
any material respect with the ordinary conduct of the business
of the Company or any of its Subsidiaries;
(vii)
Liens
arising solely by virtue of any statutory or common law
provision relating to banker’s liens, rights of set-off
or similar rights and remedies and burdening only deposit
accounts or other funds maintained with a creditor depository
institution,
provided that
no such deposit account is a dedicated cash collateral account or
is subject to restrictions against access by the depositor in
excess of those set forth by regulations promulgated by the Board
of Governors of the U.S. Federal Reserve System and that no such
deposit account is intended by the Company or any of its
Subsidiaries to provide collateral to the depository institution;
and
(viii)
Liens
securing Capital Lease Obligations, provided that such Liens
attach only to the fixed assets financed by such Capital Lease
Obligations and such Liens attach concurrently with, or within
ninety (90) days, after the acquisition thereof.
“
Person ”
means an individual, a limited liability company, a partnership, a
joint venture, a corporation, a trust, an unincorporated
organization, a Governmental Authority or any other legal
entity.
“
Proceeds ”
means “proceeds,” as such term is defined in the
Uniform Commercial Code and, in any event, includes, without
limitation, (a) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable with respect to any of the Collateral,
(b) any and all payments (in any form whatsoever) made or due and
payable from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental body, authority, bureau
or agency (or any person acting under color of governmental
authority), and (c) any and all other amounts from time to time
paid or payable under, in respect of or in connection with any of
the Collateral.
“
Representative ”
means any Person acting as agent, representative or trustee on
behalf of the Secured Party from time to time.
“
Software ”
means all “software” as such term is defined in the
Uniform Commercial Code, now owned or hereafter acquired by a
Debtor, other than software embedded in any category of Goods,
including, without limitation, all computer programs and all
supporting information provided in connection with a transaction
related to any program.
“
Trademarks ”
means any trademarks, trade names, corporate names, company names,
business names, fictitious business names, trade styles, service
marks, logos, other business identifiers, prints and labels on
which any of the foregoing have appeared or appear, all
registrations and recordings thereof, and all applications in
connection therewith, including, without limitation, the trademarks
and applications listed in
Schedule V attached
hereto (if any) and renewals thereof, and all income, royalties,
damages and payments now or hereafter due and/or payable under or
with respect to any of the foregoing, including, without
limitation, damages and payments for past, present and future
infringements of any of the foregoing and the right to sue for
past, present and future infringements of any of the
foregoing.
“
Uniform Commercial Code ”
shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York; provided,
that to the extent that the Uniform Commercial Code is used to
define any term herein and such term is defined differently in
different Articles or Divisions of the Uniform Commercial Code, the
definition of such term contained in Article or Division 9 shall
govern; provided, that, if, by mandatory provisions of applicable
laws, any or all of the attachment, perfection, or priority of
Secured Party’s security interest in Collateral is governed
by the Uniform Commercial Code as enacted and in effect in a
jurisdiction other than the State of New York, the term
“
Uniform Commercial Code ”
means the Uniform Commercial Code as enacted and in effect in such
other jurisdiction solely for purposes of the provisions hereof
relating to such attachment, perfection, or priority and for
purposes of definitions related to such provisions..
Section
2.
Representations, Warranties and Covenants of Debtors
.
Each Debtor represents and warrants to, and covenants with, the
Secured Party as follows:
(a)
Such
Debtor has rights in and the power to transfer the Collateral
in which it purports to grant a security interest pursuant
to
Section 3 hereof
(subject, with respect to after acquired Collateral, to such Debtor
acquiring the same) and no Lien other than Permitted Liens exists
or will exist upon such Collateral at any time.
(b)
This
Agreement is effective to create in favor of Secured Party a
valid security interest in and Lien upon all of such
Debtor’s right, title and interest in and to the
Collateral, and upon (i) (A) the filing of appropriate Uniform
Commercial Code financing statements in the jurisdictions
listed on
Schedule I attached
hereto, and (B) each Deposit Account being subject to an Account
Control Agreement (as hereinafter defined) between the applicable
Debtor and depository institution and the Secured Party, such
security interest will be a duly perfected first priority security
interest in all of the Collateral (other than Instruments not
constituting Chattel Paper), and (ii) upon delivery of the
Instruments to the Secured Party or its Representative, duly
endorsed by such Debtor or accompanied by appropriate instruments
of transfer duly executed by such Debtor, the security interest in
the Instruments will be duly perfected.
(c)
All
of the Equipment, Inventory and Goods owned by such Debtor is
located at the places as specified on
Schedule I attached
hereto. Except as disclosed on
Schedule I ,
none of the Collateral is in the possession of any bailee,
warehousemen, processor or consignee.
Schedule I discloses
such Debtor’s name as of the date hereof as it appears in
official filings in the state or province, as applicable, of its
incorporation, formation or organization, the type of entity of
such Debtor (including corporation, partnership, limited
partnership or limited liability company), organizational
identification number issued by such Debtor’s state of
incorporation, formation or organization (or a statement that no
such number has been issued), such Debtor’s state or
province, as applicable, of incorporation, formation or
organization and the
chief place of business, chief executive officer and the office
where such Debtor keeps its books and records and the states in
which such Debtor conducts its business. Such Debtor has only one
state or
province, as applicable, of
incorporation, formation or organization. Such Debtor does not do
business and has not done business during the past five (5) years
under any trade name or fictitious business name except as
disclosed on
Schedule II attached
hereto.
(d)
No
Copyrights, Patents or Trademarks listed on
Schedules III, IV and V ,
respectively, if any, have been adjudged invalid or unenforceable
or have been canceled, in whole or in part, or are not presently
subsisting. Each of such Copyrights, Patents and Trademarks (if
any) is valid and enforceable. Such Debtor is the sole and
exclusive owner of the entire and unencumbered right, title and
interest in and to each of such Copyrights, Patents and Trademarks,
identified on
Schedules III, IV and V ,
as applicable, as being owned by such Debtor, free and clear of any
liens, charges and encumbrances, including without limitation
licenses, shop rights and covenants by such Debtor not to sue third
persons. Such Debtor has adopted, used and is currently using, or
has a current bona fide intention to use, all of such Trademarks
and Copyrights. Such Debtor has no notice of any suits or actions
commenced or threatened with reference to the Copyrights, Patents
or Trademarks owned by it.
(e)
Each
Debtor agrees to deliver to the Secured Party an
updated
Schedule I, II, III, IV and/or V within
five (5) Business Days of any change thereto.
(f)
All
depositary and other accounts including, without limitation,
Deposit Accounts, securities accounts, brokerage accounts and
other similar accounts, maintained by each Debtor are
described on
Schedule VI hereto,
which description includes for each such account the name of the
Debtor maintaining such account, the name, address and telephone
and telecopy numbers of the financial institution at which such
account is maintained, the account number and the account officer,
if any, of such account. No Debtor shall open any new Deposit
Accounts, securities accounts, brokerage accounts or other accounts
unless such Debtor shall have given Secured Party ten (10) Business
Days’ prior written notice of its intention to open any such
new accounts. Each Debtor shall deliver to Secured Party a revised
version of
Schedule VI showing
any changes thereto within five (5) Business Days of any such
change. Each Debtor hereby authorizes the financial institutions at
which such Debtor maintains an account to provide Secured Party or
its Representative with such information with respect to such
account as Secured Party or its Representative from time to time
reasonably may request, and each Debtor hereby consents to such
information being provided to Secured Party and its Representative.
In addition, all of such Debtor’s depositary, security,
brokerage and other accounts including, without limitation, Deposit
Accounts shall be subject to the provisions of
Section 4.5 hereof.
(g)
Such
Debtor does not own any Commercial Tort Claim except for those
disclosed on
Schedule VII hereto
(if any).
(h)
Such
Debtor does not have any interest in real property except as
disclosed on
Schedule VIII (if
any). Each Debtor shall deliver to Secured Party a revised version
of
Schedule VIII showing
any changes thereto within ten (10) Business Days of any such
change. Except as otherwise agreed to by Secured Party, all such
interests in real property are subject to a mortgage or deed of
trust (in form and substance satisfactory to Secured Party) in
favor of Secured Party (hereinafter, a “
Mortgage ”).
(i)
All
Equipment (including, without limitation, Motor Vehicles)
owned by a Debtor and subject to a certificate of title or
ownership statute is described on
Schedule IX hereto.
(j)
The
Company has no direct or indirect subsidiaries other than
Options.
Section
3.
Collateral .
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the
Liabilities, each Debtor hereby pledges and grants to the Secured
Party, for the benefit of itself a Lien on and security interest in
and to all of such Debtor’s right, title and interest in the
personal property and assets of such Debtor, whether now owned by
such Debtor or hereafter acquired and whether now existing or
hereafter coming into existence and wherever located (all being
collectively referred to herein as “
Collateral ”),
including, without limitation:
(a)
all
Instruments, together with all payments thereon or
thereunder:
(b)
all
Accounts;
(c)
all
Inventory;
(d)
all
General Intangibles (including payment intangibles (as defined
in the Uniform Commercial Code) and Software);
(e)
all
Equipment;
(f)
all
Documents;
(g)
all
Contracts;
(h)
all
Goods;
(i)
all
Investment Property;
(j)
all
Deposit Accounts, including, without limitation, the balance
from time to time in all bank accounts maintained by such
Debtor;
(k)
all
Commercial Tort Claims specified on
Schedule VII ;
(l)
all
As-extracted Collateral;
(m)
all
Trademarks, Patents and Copyrights; and
(n)
all
other tangible and intangible property of such Debtor,
including, without limitation, all interests in real property,
Proceeds, tort claims, products, accessions, rents, profits,
income, benefits, substitutions, additions and replacements of
and to any of the property of such Debtor described in the
preceding clauses of this
Section 3 (including,
without limitation, any proceeds of insurance thereon, insurance
claims and all rights, claims and benefits against any Person
relating thereto), other rights to payments not otherwise included
in the foregoing, and all books, correspondence, files, records,
invoices and other papers, including without limitation all tapes,
cards, computer runs, computer programs, computer files and other
papers, documents and records in the possession or under the
control of such Debtor, any computer bureau or service company from
time to time acting for such Debtor ;
provided,
however, that the Collateral shall not include any Excluded
Property.
Section
4.
Covenants; Remedies .
In furtherance of the grant of the pledge and security interest
pursuant to
Section 3 hereof,
each Debtor hereby agrees with the Secured Party as
follows:
4.1.
Delivery and Other Perfection; Maintenance, etc
.
(a)
Delivery of Instruments, Documents, Etc .
Each Debtor shall deliver and pledge to the Secured Party or its
Representative any and all Instruments, negotiable Documents,
Chattel Paper and certificated securities not maintained in a
securities account (accompanied by stock powers executed in blank)
duly endorsed and/or accompanied by such instruments of assignment
and transfer executed by such Debtor in such form and substance as
the Secured Party or its Representative may request;
provided ,
that so long as no Event of Default shall have occurred and be
continuing, each Debtor may retain for collection in the ordinary
course of business any Instruments, negotiable Documents and
Chattel Paper received by such Debtor in the ordinary course of
business, and the Secured Party or its Representative shall,
promptly upon request of a Debtor, make appropriate arrangements
for making any other Instruments, negotiable Documents and Chattel
Paper pledged by such Debtor available to such Debtor for purposes
of presentation, collection or renewal (any such arrangement to be
effected, to the extent deemed appropriate by the Secured Party or
its Representative, against trust receipt or like document).
If
a Debtor retains possession of any Chattel Paper, negotiable
Documents or Instruments pursuant to the terms hereof, such Chattel
Paper, negotiable Documents and Instruments shall be marked with
the following legend: “This writing and the obligations
evidenced or secured hereby are subject to the security interest
of Customer
Acquisition Network Holdings, Inc .”
(b)
Other Documents and Actions .
Each Debtor shall give, execute, deliver, file and/or record any
financing statement, registration, notice, instrument, document,
agreement, Mortgage or other papers that may be necessary or
desirable (in the reasonable judgment of the Secured Party or its
Representative) to create, preserve, perfect or validate the
security interest granted pursuant hereto (or any security interest
or Mortgage contemplated or required hereunder, including with
respect to
Section 2(h) of
this Agreement) or to enable the Secured Party or its
Representative to exercise and enforce the rights of the Secured
Party hereunder with respect to such pledge and security
interest,
provided that
notices to account debtors in respect of any Accounts or
Instruments shall be subject to the provisions of clause (e)
below. Notwithstanding
the foregoing each Debtor hereby irrevocably authorizes the Secured
Party at any time and from time to time to file in any filing
office in any jurisdiction any Uniform Commercial Code initial
financing statements (and other similar filings or registrations
under other applicable laws and regulations pertaining to the
creation, attachment, or perfection of security interests) and
amendments thereto that (a) indicate the Collateral (i) as all
assets of such Debtor or words of similar effect, regardless of
whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Uniform Commercial Code of the
State of New York or such jurisdiction, or (ii) as being of an
equal or lesser scope or with greater detail, and (b) contain any
other information required by part 5 of Article 9 of the Uniform
Commercial Code of the State of New York or any other State for the
sufficiency or filing office acceptance of any financing statement
or amendment, including (i) whether such Debtor is an organization,
the type of organization and any organization identification number
issued to such Debtor, and (ii) in the case of a financing
statement filed as a fixture filing or indicating Collateral as
As-extracted Collateral or timber to be cut, a sufficient
description of real property to which the Collateral relates. Each
Debtor agrees to furnish any such information to the Secured Party
promptly upon request. Each Debtor also ratifies its authorization
for the Secured Party to have filed in any jurisdiction any like
initial financing statements or amendments thereto if filed prior
to the date hereof.
(c)
Books and Records .
Each Debtor (or the Company on behalf of a Debtor) shall maintain
at its own cost and expense complete and accurate books and records
of the Collateral, including, without limitation, a record of all
payments received and all credits granted with respect to the
Collateral and all other dealings with the Collateral. Upon the
occurrence and during the continuation of any Event of Default,
each Debtor shall deliver and turn over any such books and records
(or true and correct copies thereof) to the Secured Party or its
Representative at any time on demand. Each Debtor shall permit any
Representative of the Secured Party to inspect such books and
records upon reasonable advance notice, at any time during
reasonable business hours and will provide photocopies thereof at
such Debtor’s expense to the Secured Party upon request of
the Secured Party; provided, that, after the occurrence of an Event
of Default, Debtors shall permit any Representative of the Secured
Party to inspect such books and records at any time with or without
prior notice.
(d)
Motor Vehicles .
Each Debtor shall, promptly upon acquiring same, cause the Secured
Party to be listed as the lienholder on each certificate of title
or ownership covering any items of Equipment, including Motor
Vehicles, having a value in excess of $50,000 in the aggregate for
all such items of Equipment of the Debtor, or otherwise comply with
the certificate of title or ownership laws of the relevant
jurisdiction issuing such certificate of title or ownership in
order to properly evidence and perfect Secured Party’s
security interest in the assets represented by such certificate of
title or ownership.
(e)
Notice to Account Debtors; Verification .
(i) Upon the occurrence and during the continuance of any Event of
Default (or if any rights of set-off (other than set-offs against
an Account arising under the
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