Exhibit 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT
(“Agreement”) is made and entered into as of
April 6, 2009, by and among Anacomp, Inc.
(“Lender”) and Overland Storage, Inc., a California
corporation (“Grantor”).
RECITALS
A. Grantor and Lender are parties to
that certain Authorized Service Provider Agreement between Grantor
and Lender dated as of July 1, 2001, as amended (the
“Service Agreement”).
B. Grantor has issued to Lender a
Promissory Note (with any amendments, the “Note”) in
the principal amount of Two Million Three Hundred Eighty-Six
Thousand Dollars ($2,386,000), subject to adjustment upon
reconciliation of the parties as provided in Section 6.16 of
this Agreement.
C. In connection with the Service
Agreement, Lender provides services, either directly or indirectly,
to Grantor’s customers and end-users pursuant to ongoing
enrollments under the Service Agreement (the
“Enrollments”). Pursuant to Amendment No. 15 to
the Service Agreement, Grantor will be paying Lender in advance for
a portion of the services to be provided pursuant to ongoing
Enrollments (each an “Enrollment Payment” and
collectively, the “Enrollment Payments”). All
Enrollment Payments are secured by this Agreement.
D. Grantor is executing and
delivering to Lender this Agreement to secure its obligations,
responsibilities and covenants as set forth in the Note, any
monetary obligation under the Service Agreement and this
Agreement.
NOW, THEREFORE, in consideration of
the foregoing Recitals, and for other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, Lender and Grantor hereby agree as
follows:
1. Definitions . In addition to any
terms defined elsewhere in this Agreement, the following terms have
the following meanings ascribed to them for purposes of this
Agreement:
1.1 “ Account ”
means all “ accounts ” (as defined in the UCC)
now owned or hereafter created or acquired by Grantor including,
without limitation, all of the following now owned or hereafter
created or acquired by Grantor: (a) accounts receivable,
contract rights, book debts, notes, drafts, and other obligations
or indebtedness owing to Grantor arising from the sale, lease, or
exchange of goods or other property and/or the performance of
services; (b) Grantor’s rights in, to and under all
purchase orders for goods, services, or other property;
(c) Grantor’s rights to any goods, services or other
property represented by any of the foregoing (including returned or
repossessed goods and unpaid sellers’ rights of rescission,
replevin, reclamation, and rights to stoppage in transit);
(d) moneys due to or to become due to Grantor under all
contracts for the sale, lease, or exchange of goods or other
property and/or the performance of Grantor); and (e) Proceeds
of all of the foregoing, and all collateral security and guarantees
of any kind given by any person with respect to any of the
foregoing.
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1.2 “ Affiliate ”
means, with respect to any Person, any Person directly or
indirectly controlling, controlled by or under common control with
such Person.
1.3 “ Agreement ”
means this Security Agreement, as amended from time to
time.
1.4 “ Business ”
means all business activities engaged in by Grantor.
1.5 “ Chattel Paper
” means any writing which evidences both a monetary
obligation and a security interest in or a lease of specific
goods.
1.6 “ Collateral
” means all of the following, whether now owned or hereafter
existing, acquired or arising: (a) all of Grantor’s
Inventory, Equipment and Fixtures; (b) all of Grantor’s
Documents of Title; (c) all of Grantor’s Accounts,
provided, however, that upon the sale of any Account to Faunus
Group International, Inc. (“FGI”) pursuant to that
certain Sale of Accounts and Security Agreement dated
March 18, 2009 or to Marquette Commercial Finance, a division
of Marquette Business Credit, Inc. (together,
“Marquette”) pursuant to that certain Account Transfer
and Purchase Agreement dated November 26, 2008 such Account
shall be automatically released from the security interest provided
in this Agreement; (d) all of Grantor’s Contract Rights;
(e) all of Grantor’s General Intangibles, Chattel Paper,
Instruments and Commercial Tort Claims; (f) all suretyships
and guarantees of Grantor’s existing and future Accounts,
Contract Rights, and General Intangibles, and all security for the
payment or satisfaction of such suretyships and guarantees;
(g) the goods or the services the sale or lease or performance
of which gave rise to any Account, Contract Right or General
Intangible of Grantor, including any returned goods; (h) any
balance or share belonging to Grantor of any deposit account,
agency, or other account with any bank and any other amounts which
may be owing from time to time by any bank to Grantor; (i) all
Investment Property; (j) all Letter of Credit Rights; and
(k) all Products and Proceeds of all of the foregoing,
including all Proceeds of other Proceeds; provided that
“Collateral” shall not include property to the extent
(i) such property is nonassignable by its terms without the
consent of the licensor thereof or another party, or (ii) the
granting of a security interest therein is contrary to applicable
law, provided that upon the cessation of any such restriction or
prohibition, such property shall automatically become part of the
Collateral. Notwithstanding the foregoing, the Snap Intellectual
Property is excluded from the Collateral.
1.7 “ Contract Right
” means any right to payment under a contract (including but
not limited to contracts for the sale or leasing of goods or for
the rendering of services) not yet earned by performance and not
evidenced by an Instrument or Chattel Paper.
1.8 “ Contingent
Obligation ,” as applied to any Person, means any direct
or indirect liability, contingent or otherwise, of that Person:
(a) with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of
the Person incurring such liability, or the primary effect thereof,
is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with
respect thereto; (b) with respect to any letter of credit
issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of any drawing thereunder; or
(c) under any foreign exchange contract, currency swap
agreement, interest rate swap or cap agreement or other similar
agreement or arrangement
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designed to protect that Person against
fluctuations in currency values or interest rates. Contingent
Obligations will include, without limitation, (1) the direct
or indirect guaranty, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such person of the
obligation of another, (2) the obligation to make take-or-pay
or similar payments if required regardless of nonperformance by any
other party or parties to an agreement, and (3) any liability
of such Person for the obligations of another through any agreement
to purchase, repurchase or otherwise acquire such obligation, to
provide funds for the payment or discharge of such obligation or to
maintain the solvency, financial condition or any balance sheet
item or level of income of another. The amount of any Contingent
Obligation will be equal to the amount of the obligation so
guaranteed or otherwise supported or, if a fixed and determined
amount, the maximum amount so guaranteed.
1.9 “ Copyright License
” means any written agreement now or hereafter in existence
granting to Grantor any right to use any Copyright.
1.10 “ Copyright
” means all of the following: (a) all copyrights,
rights, and interests in copyrights, copyright registrations, and
copyright applications now owned or hereafter created or acquired
by Grantor; (b) all renewals of any of the foregoing;
(c) all income, royalties, damages and payments now or
hereafter due and/or payable under any of the foregoing, including,
without limitation, damages or payments for past or future
infringements of any of the foregoing; (d) the right to sue
for past, present, and future infringements of any of the
foregoing; and (e) all rights corresponding to any of the
foregoing throughout the world.
1.11 “ Equipment
” means all “equipment” (as defined in the UCC)
now owned or hereafter acquired by Grantor including, without
limitation, all machinery, computers, computer equipment, motor
vehicles, trucks, trailers, vessels, aircraft, and rolling stock,
and all parts thereof and all additions and accessions thereto and
replacements therefor.
1.12 “ Event of Default
” has the meaning set forth in paragraph 5 of this
Agreement.
1.13 “ Financing
Statement ” means the form of financing statement that
will be necessary to perfect, upon filing, a security interest in
the Collateral in each jurisdiction in which Grantor is registered
or located or in which a filing is required under the UCC to
perfect such security interest.
1.14 “ Fixtures ”
means all of the following now owned or hereafter acquired by
Grantor: plant fixtures; business fixtures; other fixtures and
storage office facilities, wherever located; and all additions and
accessions thereto and replacements therefor.
1.15 “ GAAP ”
means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of
determination.
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1.16 “ General
Intangibles ” means all “general intangibles”
(as defined in the UCC) now owned or hereafter acquired by Grantor
including, without limitation, all right, title, and interest of
Grantor in and to: (a) all agreements, leases, licenses, and
contracts to which Grantor is or may become a party; (b) all
obligations, indebtedness, causes of action or choses in action,
owing to Grantor (other than accounts) from whatever source
arising; (c) all tax refunds; (d) all Intellectual
Property; and (e) all trade secrets, know how and common law
intellectual property rights including, without limitation, rights
in computer software developed by or for Grantor and other
confidential information relating to the business of the Grantor,
including by way of illustration and not limitation: the names and
addresses of, and credit and other business information concerning,
Grantor’s past, present, or future customers; the prices that
Grantor obtains for its services or at which it sells merchandise;
estimating and costs procedures; profit margins; policies and
procedures pertaining to the sale and design of equipment,
components, devices, and services furnished by Grantor; information
concerning suppliers of Grantor and information concerning the
manner of operation, business plans, pledges, projections, and all
other information of any kind or character, whether or not reduced
to writing, with respect to the conduct by Grantor of its business
not generally known by the public.
1.17 “ Governmental
Approvals ” means any consent, right, exemption,
concession, permit, license, authorization, certificate, order,
franchise, determination, or approval of any federal, state,
provincial, municipal, or governmental department, commission,
board, bureau, agency, or instrumentality required for the
ownership of properties by or activities of Grantor.
1.18 “ Governmental
Authority ” means any nation or government, any state,
province or other political subdivision thereof, or any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
1.19 “ Governmental
Requirements ” means all legal requirements in effect
from time to time including all laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules,
regulations, permits, licenses, authorizations, certificates,
orders, franchises, determinations, approvals, consents, notices,
demand letters, directions, and requirements of all governments,
departments, commissions, boards, courts, authorities, agencies,
officials, and officers, foreseen or unforeseen, ordinary or
extraordinary, including but not limited to any change in any law
or regulation, or the interpretation thereof, by any foreign or
domestic governmental or other authority (whether or not having the
force of law), relating now or at any time heretofore or hereafter
to the business or operations of Grantor or to any of the property
owned, leased, or used by Grantor, including, without limitation,
the development, design, construction, acquisition, start-up,
ownership, and operation and maintenance of property.
1.20 “ Incipient
Default ” means an event, which, upon the lapse of time
or the giving of notice, or both, would constitute an Event of
Default.
1.21 “ Indebtedness
” of any Person means all liabilities, obligations and
reserves, contingent or otherwise, of such Person.
1.22 “ Instrument
” means a negotiable instrument or a security or any other
writing which evidences a right to the payment of money and is not
itself a security agreement or lease, and is of a type which is in
the ordinary course of business transferred by delivery with any
necessary endorsement or assignment.
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1.23 “ Intellectual
Property ” means all of the following: Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks, and
Trademark Licenses.
1.24 “ Inventory
” means all “goods” (as defined in the UCC) now
owned or hereafter acquired and held by Grantor for sale or lease
or to be furnished under contracts of service, tangible personal
property which Grantor has so leased or furnished including,
without limitation, tangible personal property, raw materials, work
in process, and materials used, produced or consumed in
Grantor’s business, and will include tangible personal
property held by others for sale on consignment from Grantor,
tangible personal property sold by Grantor on a sale or return
basis, tangible personal property returned to Grantor by the
purchaser following a sale thereof by Grantor, and tangible
personal property represented by Documents of Title. All equipment,
accessories, and parts at any time attached or added to items of
Inventory or used in connection therewith will be deemed to be part
of the Inventory.
1.25 “ Lien ”
means any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
1.26 “ Loan Documents
” means the Note, this Agreement and the Intellectual
Property Security Agreement.
1.27 “ Material Adverse
Effect ” means a material adverse effect on (a) the
business, assets, operations or financial condition of Grantor,
(b) the ability of Grantor to pay the Obligations when due, in
accordance with their terms, or (c) the perfection or priority
of Lender’s lien on and security interest in the Collateral
(as defined in this Agreement) or the value of such
Collateral.
1.28 “ Obligations
” means all (a) debts, liabilities, obligations,
covenants, and duties owing to Lender by Grantor under the Loan
Documents and (b) monetary obligations under the Service
Agreement, including without limitation any and all Enrollment
Payments now or hereafter in existence, all as may be amended,
supplemented, modified, renewed or extended from time to
time.
1.29 “ Patent License
” means any written agreement now or hereafter in existence
granting to Grantor any right to use any invention on which a
subsisting Patent exists.
1.30 “ Patents ”
means all of the following: (a) all patents and patent
applications now owned or hereafter created or acquired by Grantor
and the inventions and improvements described and claimed therein,
and all patentable inventions; (b) the reissues, divisions,
continuations, renewals, extensions, and continuations-in-part of
any of the foregoing; (c) all income, royalties, damages, or
payments now and hereafter due and/or payable under any of the
foregoing or with respect to any of the foregoing including,
without limitation, damages or payments for past or future
infringements of any of the foregoing; (d) the right to sue
for past, present, and future infringements of any of the
foregoing; and (e) all rights corresponding to any of the
foregoing throughout the world.
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1.31 “ Person ”
means any individual, corporation, partnership, trust, association
or other entity or organization, including any government,
political subdivision, agency or instrumentality
thereof.
1.32 “ Proceeds ”
means all proceeds of, and all other profits, rentals, or receipts,
in whatever form, arising from the collection, sale, lease,
exchange, assignment, licensing, or other disposition of, or
realization upon, any Collateral including, without limitation, all
claims of Grantor against third parties for loss of, damage to, or
destruction of, or for proceeds payable for loss of, damage to, or
destruction of, or for proceeds payable under, or unearned premiums
with respect to, policies of insurance with respect to any
Collateral, and any condemnation or requisition payments with
respect to any Collateral, in each case whether now existing or
hereafter arising.
1.33 “ Snap Intellectual
Property ” means all of the Intellectual Property and
General Intangibles purchased by Grantor from Adaptec, Inc.
(“Adaptec”) pursuant to that certain Asset Purchase
Agreement dated as of June 27, 2008, as amended.
1.34 “ Trademark
” means all of the following now owned or hereafter created
or acquired by Grantor: (a) all 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 registrations,
recordings, and applications in the United States Patent and
Trademark Office or in any similar office or agency of the United
States, any State thereof, and in any other country or any
political subdivision thereof; (b) all reissues, extensions,
or renewals thereof; (c) all income, payable under any of the
foregoing or with respect to any of the foregoing, including
damages or payments for past or future infringements of any of the
foregoing; (d) the right to sue for past, present, and future
infringements of any of the foregoing; (e) all rights
corresponding to any of the foregoing throughout the world; and
(f) all goodwill associated with or symbolized by any of the
foregoing.
1.35 “ Trademark
License ” means any written agreement now or hereafter in
existence granting to Grantor any right to use any
Trademark.
1.36 “ UCC ”
means the California Uniform Commercial Code, as amended from time
to time, and any successor statute; provided, however, that if by
reason of mandatory provisions of law, the perfection or the effect
of perfection or non-perfection of the security interest in any
Collateral is governed by the Uniform Commercial Code, or other
applicable statute, law, or provision relating to the perfection or
the effect of perfection or non-perfection of any such security
interest, as in effect on or after the date hereof in any other
jurisdiction, then “UCC” will mean the Uniform
Commercial Code or such other statute, law, or provision as in
effect in such other jurisdiction for purposes of the provision
hereof relating to such perfection or the effect of perfection or
non-perfection.
Any capitalized term not defined in
this Agreement will have the meaning given to it under the UCC. Any
accounting term not defined in this Agreement will have the meaning
given to it under GAAP.
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2. Security Interest .
2.1 Grant of Security
Interest . Grantor hereby grants to Lender a continuing
security interest in and to all right, title, and interest of
Grantor in the Collateral, whether now owned or existing or
hereafter acquired or arising, regardless of where located, to
secure payment and performance of the Obligations and all renewals,
extensions, restructurings, and refinancings of the same.
Notwithstanding any other provision of this Agreement:
(a) Grantor will remain liable under the contracts and
agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to
the same extent as if this Agreement had not been executed; and
(b) Lender will not have any obligation or liability under the
contracts and agreements included in the Collateral by reason of
this Agreement, nor will Lender be obligated to perform any of the
obligations or duties of Grantor thereunder or to take any action
to collect or enforce any claim for payment assigned
hereunder.
2.2 Affirmative Covenants of
Grantor . Grantor will: (a) do all acts that may be
necessary to maintain, preserve, and protect the Collateral;
(b) pay promptly when due all taxes, assessments, charges,
encumbrances, and liens now or hereafter imposed upon or affecting
the Collateral, except to the extent the same are being contested
in good faith and Grantor maintains sufficient reserves therefor;
(c) procure, execute, and deliver from time to time any
endorsements, assignments, financing statements, and other writings
reasonably necessary or appropriate to perfect, maintain, and
protect Lender’s security interest hereunder and the priority
thereof, and to deliver promptly to Lender all records of
(1) Collateral or (2) insurance proceeds; (d) appear
in and defend any action or proceeding which may affect its title
to or Lender’s interest in the Collateral, except to the
extent the failure to do so could not reasonably be expected to
have a Material Adverse Effect; (e) keep accurate and complete
records of the Collateral and provide Lender with such books,
records, and such other reports and information relating to the
Collateral as Lender may reasonably request from time to time upon
prior written notice and during normal business hours;
(f) when an Event of Default under this Agreement has occurred
and is continuing, and after demand, account fully for and
immediately deliver to Lender in the form received, all Collateral
and all proceeds, endorsed to Lender as appropriate, and unless so
delivered all Collateral and all such proceeds will be held by
Grantor in trust for Lender, separate from all other property of
Grantor and identified as the property of Lender; (g) keep the
Collateral in good condition and repair, reasonable wear and tear
excepted; (h) at any reasonable time, upon prior written
notice and during normal business hours, exhibit to and allow
inspection by Lender (or persons designated by Lender) of all
Collateral not embodying Intellectual Property; (i) give
thirty (30) calendar days’ prior written notice of any
change in Grantor’s chief place of business or trade name(s)
or style(s) set forth therein; (1) comply with all laws,
regulations, and ordinances relating to the possession, operation,
maintenance, and control of the Collateral; (j) execute and
file such financing or continuation, statements, or amendments
thereto, and such other instruments or notices as may be reasonably
necessary in order to perfect and preserve the security interest
granted or intended to be granted hereby under the laws of any
applicable jurisdiction; and (k) upon Lender’s request,
appear in and defend any action or proceeding that may affect
Grantor’s title to or Lender’s security interest in the
Collateral, except to the extent the failure to do so could not
reasonably be expected to have a Material Adverse
Effect.
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2.3 Negative Covenants of
Grantor . Grantor will not, without the prior written consent
of Lender: (a) use or permit the Collateral to be used
unlawfully or in violation of any provision of this Agreement, or
any applicable statute, regulation, or ordinance or any policy of
insurance covering the Collateral; (b) cause any waste or
unusual or unreasonable depreciation of the Collateral; or
(c) after default under this Agreement and upon demand,
modify, waive or release any provisions of any Account, Contract
Right, item of Chattel Paper, Instrument or other right to the
payment of money constituting Collateral.
2.4 Insurance . Upon
execution of this Agreement, Grantor will insure the Collateral,
with Lender named as a loss payee, in reasonable form and amounts,
with companies reasonably acceptable to Lender, and against normal
risks and liabilities. Grantor will deliver copies of such policies
to Lender at Lender’s request. In the event of loss of
insured Collateral, Lender may make any claim thereunder, and until
the Collateral is promptly replaced by Grantor from the segregated
proceeds of the insurance, Lender may collect and receive payment
of and endorse any instrument in payment of loss, and apply such
amounts received, at Lender’s election, to replacement of
Collateral or to the Obligations. Lender will not by the fact of
approving, disapproving, accepting, preventing, obtaining or
failing to obtain any insurance, incur any liability for or with
respect to the amount of insurance carried, the form or legal
sufficiency of insurance contracts, solvency of insurance
companies, or payment or defense of lawsuits. Grantor he