Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 1 of 21
`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 1 of 21
`
`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)(cid:21)(cid:3)
`EXHIBIT 2
`
`(cid:3)
`
`(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)(cid:3)
`
`DECLS EXHS PAGE 11
`DECLS EXHSPAGE11
`
`(cid:40)(cid:59)(cid:43)(cid:44)(cid:37)(cid:44)(cid:55)(cid:3)(cid:21)(cid:3)
`EXHIBIT 2
`
`

`

`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 2 of 21
`
`PLEDGE AND GENERAL SECURITY AGREEMENT
`
`Dated as of May 11, 2012
`To Be Effective as of October 4, 2011
`
`By and Between
`
`PERSONALWEB TECHNOLOGIES, LLC
`as Debtor
`
`And
`
`BRILLIANT DIGITAL ENTERTAINMENT, INC.
`as Secured Party
`
`DECLS EXHS PAGE 12
`
`

`

`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 3 of 21
`
`PLEDGE AND GENERAL SECURITY AGREEMENT
`
`THIS PLEDGE AND GENERAL SECURITY AGREEMENT (this “Agreement”) dated
`as of May 11, 2012 to be effective as of October 11, 2011, entered into by and between
`PersonalWeb Technologies, LLC, a Texas limited liability company, as debtor (the “Debtor”),
`and Brilliant Digital Entertainment, Inc., a Delaware corporation, as secured party (the “Secured
`Party”), sets forth the agreement pursuant to which the Debtor pledges and assigns its interest in,
`and grants a perfected security interest and general Lien in and upon, the Collateral described
`herein as security for the obligations incurred by Debtor under that certain Secured Revolving
`Promissory Note of even date herewith (the “Secured Note”).
`
`WHEREAS, it is a condition to the Secured Party making a loan and advance of funds
`pursuant to the Secured Note that the Debtor execute this Agreement in favor of the Secured
`Party.
`
`NOW THEREFORE, in consideration of the premises and mutual covenants contained
`herein and for other good, valuable, and binding consideration, the receipt and sufficiency of
`which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree
`as follows:
`
`1.
`
`Definitions.
`
`Capitalized terms used herein and not otherwise defined herein shall have
`1.1
`the meanings provided in the Secured Note. To the extent that any terms or concepts defined or
`used herein are defined or used in the UCC (as defined below), such terms or concepts shall be
`interpreted for purposes hereof in a manner that is consistent with such definition or use in the
`UCC.
`
`1.2
`
`The following terms shall have the meanings set forth below:
`
`“Account” has the meaning given such term in Section 9.102(a)(2) of the UCC.
`
`“Account Debtor” has the meaning given such term in Section 9.102(a)(3) of the UCC.
`
`“Certificate of Title” has the meaning given such term in Section 9.102(a)(10) of the
`
`“Certificated Security” has the meaning given such term in Section 8.102(a)(4) of the
`
`UCC.
`
`UCC.
`
`“Chattel Paper” has the meaning given such term in Section 9.102(a)(11) of the UCC.
`
`“Collateral” shall mean all right, title, and interest of the Debtor in and to all of the
`following property of the Debtor, whether now owned or hereafter acquired and whether now
`existing or hereafter coming into existence:
`
`(i)
`
`Accounts;
`
`DECLS EXHS PAGE 13
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`

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`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 4 of 21
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`(ii)
`
`(iii)
`
`(iv)
`
`(v)
`
`(vi)
`
`Chattel Paper and rights to receive monies included thereby;
`
`Commercial Tort Claims;
`
`Deposit Accounts;
`
`Documents;
`
`Equity Collateral;
`
`(vii) General Intangibles;
`
`(viii) Goods, including Inventory and Equipment;
`
`(ix)
`
`(x)
`
`(xi)
`
`Instruments and rights to receive monies included thereby;
`
`Intellectual Property;
`
`Investment Property, including Commodity Accounts and Commodity Contracts;
`
`(xii)
`
`Letter-of-Credit Rights;
`
`(xiii) Notes;
`
`(xiv)
`
`other tangible and intangible personal property and Fixtures of the Debtor;
`
`to the extent related to any property described in the clauses (i) through (xiv), all
`(xv)
`books, correspondence, loan files, records, invoices, and other papers, including without
`limitation all tapes, cards, computer runs, and other papers and documents in the possession or
`under the control of the Debtor or any computer service company from time to time acting for
`the Debtor; and
`
`(xvi)
`
`cash and non-cash Proceeds of any and all of the foregoing.
`
`“Commercial Tort Claim” has the meaning given such term in Section 9.102(a)(13) of
`the UCC.
`
`“Commodity Account” has the meaning given such term in Section 9.102(a)(14) of the
`
`“Commodity Contract” has the meaning given such term in Section 9.102(a)(15) of the
`
`UCC.
`
`UCC.
`
`“Commodity Intermediary” has the meaning given such term in Section 9.102(a)(17)
`of the UCC.
`
`“Copyright Collateral” shall mean all Copyrights, whether now owned or hereafter
`acquired by the Debtor.
`
`DECLS EXHS PAGE 14
`
`2
`
`

`

`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 5 of 21
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`“Copyrights” shall mean all copyrights, copyright registrations, and applications for
`copyright registrations, including, without limitation, all renewals and extensions thereof, the
`right to recover for all past, present, and future infringements thereof, and all other rights of any
`kind whatsoever accruing thereunder or pertaining thereto.
`
`“Deposit Account” has the meaning given such term in Section 9.102(a)(29) of the
`
`“Documents” has the meaning given such term in Section 9.102(a)(30) of the UCC.
`
`“Entitlement Holder” has the meaning given such term in Section 8.102(a)(7) of the
`
`“Entitlement Order” has the meaning given such term in Section 8.102(a)(8) of the
`
`“Equipment” has the meaning given such term in Section 9.102(a)(33) of the UCC.
`
`“Equity Collateral” shall mean Pledged Equity and Pledged Equity Proceeds.
`
`“Event of Default” shall have the meaning specified in Section 15 of this Agreement.
`
`“Financial Asset” has the meaning given such term in Section 8.102(a)(9) of the UCC.
`
`“Fixtures” has the meaning given such term in Section 9.102(a)(41) of the UCC.
`
`“General Intangibles” has the meaning given such term in Section 9.102(a)(42) of the
`
`UCC.
`
`UCC.
`
`UCC.
`
`UCC.
`
`“Goods” has the meaning given such term in Section 9.102(a)(44) of the UCC, and shall
`include Motor Vehicles.
`
`“Instruments” has the meaning given such term in Section 9.102(a)(47) of the UCC.
`
`“Intellectual Property” shall mean, collectively, all Copyright Collateral, all Patent
`Collateral, and all Trademark Collateral, together with (a) all inventions, processes, production
`methods, proprietary information, know-how, and trade secrets; (b) all licenses or user or other
`agreements granted to the Debtor with respect to any of the foregoing, in each case whether now
`or hereafter owned or used; (c) all information, customer lists, identification of suppliers, data,
`plans, blueprints, specifications, designs, drawings, recorded knowledge, surveys, engineering
`reports, test reports, manuals, materials standards, processing standards, performance standards,
`catalogs, computer and automatic machinery software and programs, splash screens, films,
`masters, and artwork; (d) all field repair data, sales data, and other information relating to sales
`or service of products now or hereafter manufactured; (e) all accounting information and all
`media in which or on which any information or knowledge or data or records may be recorded or
`stored and all computer programs used for the compilation or printout of such information,
`knowledge, records, or data; and (f) all licenses, consents, permits, variances, certifications, and
`approvals of governmental agencies now or hereafter held by the Debtor.
`
`DECLS EXHS PAGE 15
`
`3
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`

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`“Inventory” has the meaning given such term in Section 9.102(a)(48) of the UCC.
`
`“Investment Property” has the meaning given such term in 9.102(a)(49) of the UCC.
`
`“Letter-of-Credit Right” has the meaning given such term in Section 9.102(a)(51) of
`the UCC.
`
`“Lien” shall mean a pledge, assignment, lien, charge, mortgage, encumbrance, or other
`security interest obtained under this Agreement or under any other agreement or instrument with
`respect to any present or future assets, property, contract rights, or revenues in order to secure the
`payment of indebtedness of the party referred to in the context in which the term is used.
`
`“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.
`
`“Notes” shall mean all Promissory Notes or other debt instruments (including, without
`limitation, bonds and debentures of any nature whatsoever) from time to time issued to, or held
`by, the Debtor.
`
`“Obligations” shall mean (i) (x) the principal of and interest on the Secured Note and (y)
`all other obligations and liabilities (including, without limitation, indemnities, Fees and interest
`thereon) of the Debtor, whether now existing or hereafter incurred, under, arising out of, or in
`connection with, the Secured Note or otherwise and the due performance and compliance by the
`Debtor with all of the terms, conditions, and agreements contained in the Secured Note; (ii) any
`and all sums advanced by the Secured Party in order to preserve the Collateral or preserve its
`Lien and security interest in the Collateral; (iii) in the event of any proceeding for the collection
`or enforcement of any indebtedness, obligations, or liabilities referred to in clauses (i) and (ii)
`above, the reasonable expenses of any exercise by the Secured Party of its rights hereunder,
`together with reasonable attorneys’ fees and court costs; and (iv) to the extent not otherwise
`included in clauses (i), (ii), and (iii) above, the Debtor’s obligations set forth in Section 22.
`
`“Patent Collateral” shall mean all Patents, whether now owned or hereafter acquired by
`the Debtor.
`
`“Patents” shall mean all patents and patent applications, including, without limitation,
`the inventions and improvements described and claimed therein together with the reissues,
`divisions, continuations, renewals, extensions, and continuations-in-part thereof, all income,
`royalties, damages, and payments now or hereafter due and/or payable under and with respect
`thereto, including, without limitation, damages and payments for past or future infringements
`thereof, the right to sue for past, present, and future infringements thereof, and all rights
`corresponding thereto throughout the world.
`
`“Pledged Equity” shall mean (i) the shares of stock of, or partnership and other
`ownership interest in, any entity, and (ii) all ownership interests of any class or character of a
`successor entity formed by or resulting from a consolidation or merger in which any such issuer
`is not the surviving entity; in each case, whether now or hereafter owned by the Debtor, together
`with any certificates evidencing of the foregoing.
`
`DECLS EXHS PAGE 16
`
`4
`
`

`

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`“Pledged Equity Proceeds” shall mean all shares, securities, moneys, or property
`representing a dividend on any of the Pledged Equity, or representing a distribution or return of
`capital upon or in respect of the Pledged Equity, or resulting from a split-up, revision,
`reclassification, or other like change of the Pledged Equity or otherwise received in exchange
`therefor, and any subscription warrants, rights, or options issued to the holders of, or otherwise in
`respect of, the Pledged Equity.
`
`“Proceeds” has the meaning given such term in Section 9.102(a)(65) of the UCC.
`
`“Promissory Notes” has the meaning given such term in Section 9.102(a)(66) of the
`
`UCC.
`
`“Securities” has the meaning given such term in Section 8.102(a)(15) of the UCC.
`
`“Securities Account” has the meaning given such term in Section 8.501(a) of the UCC.
`
`“Securities Intermediary” has the meaning given such term in Section 8.102(a)(14) of
`the UCC.
`
`“Security Entitlement” has the meaning given such term in Section 8.102(a)(17) of the
`
`UCC.
`
`“Trademark Collateral” shall mean all Trademarks, whether now owned or hereafter
`acquired by the Debtor. Notwithstanding the foregoing, the Trademark Collateral does not and
`shall not include any Trademark that would be rendered invalid, abandoned, void, or
`unenforceable by reason of its being included as part of the Trademark Collateral.
`
`“Trademarks” shall mean all trade names, trademarks and service marks, logos, domain
`names, trademark and service mark registrations, and applications for trademark and service
`mark registrations, including, without limitation, all renewals of trademark and service mark
`registrations, all rights corresponding thereto throughout the world, the right to recover for all
`past, present, and future infringements thereof, all other rights of any kind whatsoever accruing
`thereunder or pertaining thereto, together, in each case, with the product lines and goodwill of
`the business connected with the use of, and symbolized by, each such trade name, trademark, and
`service mark.
`
`“UCC” shall mean the Uniform Commercial Code as in effect in the State of Texas from
`time to time.
`
`“Uncertificated Security” has the meaning given such term in Section 8.102(a)(18) of
`the UCC.
`
`Grant of Liens. As security for the due and punctual payment and performance in
`2.
`full of all Obligations (whether at the stated maturity, by acceleration, or otherwise and whether
`now owing or incurred in the future), the Debtor hereby pledges, assigns, charges, delivers, and
`grants to the Secured Party a continuing first priority perfected security interest in and a general
`first Lien upon all of the Debtor’s right, title, and interest in and to the Collateral and all
`
`DECLS EXHS PAGE 17
`
`5
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`

`

`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 8 of 21
`
`additions thereto and substitutions therefor, whether heretofore, now or hereafter received by or
`delivered or transferred to the Secured Party hereunder.
`
`3.
`
`Continuing Security Interest.
`
`This Agreement creates an assignment, pledge, charge, continuing first
`3.1
`priority perfected security interest in, and general first Lien upon, the Collateral and shall (a)
`remain in full force and effect until all Obligations have been paid in full and the Secured Note
`has been terminated, (b) be binding upon the Debtor and its successors, permitted transferees,
`and permitted assigns, and (c) inure, together with the rights and remedies of the Secured Party
`hereunder, to the benefit of the Secured Party and its successors, transferees, and assigns.
`
`Upon the indefeasible payment in full of all Obligations and the
`3.2
`termination of the Secured Note, the assignment, pledge, charge, Lien, and security interest
`granted hereunder shall terminate and, upon delivery and transfer of the Collateral to the Debtor,
`all rights to the Collateral shall revert to the Debtor. Upon such termination, the Secured Party
`will at the sole expense of the Debtor execute and deliver to the Debtor such documents as the
`Debtor shall reasonably request to evidence such termination and the Secured Party shall deliver
`and transfer such Collateral to the Debtor.
`
`Debtor Remains Liable. Anything herein to the contrary notwithstanding, (i) the
`4.
`Debtor shall remain liable under any agreements which have been (in whole or in part) pledged
`or assigned herein to perform all of its duties and obligations thereunder to the same extent as if
`this Agreement had not been executed; (ii) the exercise by the Secured Party of any of the rights
`hereunder shall not release the Debtor from any of its respective duties or obligations under any
`such agreements; and (iii) the Secured Party shall not have any obligation or liability under any
`such agreements by reason of this Agreement, nor shall the Secured Party be obligated to
`perform any of the obligations or duties of the Debtor thereunder or to take any action to collect
`or enforce any claim for payment assigned hereunder.
`
`Delivery and Perfection. The Debtor hereby authorizes the Secured Party to file
`5.
`one or more financing or continuation statements, and amendments thereto, relating to all or any
`part of the Collateral, and agrees to take all such other actions and to execute and deliver and file
`or cause to be filed such other instruments or documents, as the Secured Party may reasonably
`require in order to establish and maintain a perfected, valid, and continuing security interest and
`Lien in the Collateral in accordance with this Agreement and the UCC and other applicable law.
`
`5.1
`
`The Debtor shall, at the written request of the Secured Party:
`
`promptly deliver any and all Documents, Instruments, and Chattel
`(i)
`Paper (including, without limitation, any Certificates of Title) evidencing or relating to the
`Collateral to the Secured Party at the time and place and manner specified in the Secured Party’s
`request;
`
`promptly execute (if applicable) and deliver to the Secured Party
`(ii)
`(or file or record in such offices as the Secured Party may deem necessary or appropriate) any
`and all financing and continuation statements, other agreements, instruments, or other documents
`or amendments thereto, and perform any acts which may be necessary (A) to create, perfect,
`
`DECLS EXHS PAGE 18
`
`6
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`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 9 of 21
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`preserve, or otherwise protect the security interest and Liens granted herein or (B) to enable the
`Secured Party to exercise and enforce its rights hereunder; and
`
`(iii) mark all Certificates of Title in the manner specified in a written
`notice of the Secured Party to the Debtor requesting such marking, to evidence the fact that such
`Certificates of Title are subject to the security interest and Lien of the Secured Party granted
`herein.
`
`Upon the written request of the Secured Party, the Debtor agrees
`5.2
`immediately to deliver to the Secured Party, appropriately endorsed to the order of the Secured
`Party, any Notes, trade acceptance, Chattel Paper, or other Instrument in which a security interest
`must be perfected by delivery or transfer of such Collateral to a secured party, which shall be
`acquired by the Debtor from time to time.
`
`Notwithstanding Section 9207 of the UCC, the Secured Party may hold as
`5.3
`additional security any Proceeds, including money and funds, received from the Collateral, all of
`which shall constitute Collateral hereunder, and the Secured Party shall not be required to apply
`such money or funds to reduce the Obligations other than as expressly set forth herein.
`
`Relation to Other Security Documents. To the extent applicable, the provisions of
`6.
`this Agreement supplement the provisions of any real estate mortgage or deed of trust granted by
`the Debtor to the Secured Party and securing the payment or performance of any of the
`Obligations. Nothing contained in any such real estate mortgage or deed of trust shall derogate
`from any of the rights or remedies of the Secured Party hereunder.
`
`Proceeds of Sale. Nothing contained in this Agreement shall limit or restrict in
`7.
`any way the Secured Party’s right to receive Proceeds of the Collateral in any form in accordance
`with the provisions of this Agreement. All Proceeds that are received by the Debtor contrary to
`the provisions of this Agreement shall be received in trust for the benefit of the Secured Party,
`shall be segregated from other property or funds of the Debtor and shall be forthwith paid over to
`the Secured Party as Collateral in the same form as so received (with any necessary endorsement,
`document or instrument of transfer).
`
`Records and Information. The Debtor agrees to keep, at its office set forth in
`8.
`Section 12(d), its records concerning the Collateral. The Debtor agrees to promptly furnish to
`the Secured Party such information concerning itself, the Collateral, and any Account Debtor as
`the Secured Party may reasonably request.
`
`Inspection. The Debtor agrees upon reasonable notice provided by the Secured
`9.
`Party, to permit the Secured Party, through its officers and agents, to examine and inspect the
`Collateral and all records pertaining thereto, and to make extracts from such records as the
`Secured Party may reasonably require.
`
`Use of Collateral. Except upon the occurrence and during the continuance of any
`10.
`Potential Event of Default or Event of Default, the Debtor may in the ordinary course of its
`business use, consume, exhibit, demonstrate, sell, lease, or otherwise dispose of its Inventory, or,
`with the prior written consent of the Secured Party, its Equipment, in carrying on its businesses
`substantially in the same manner as now conducted; provided, however, that a sale in the
`
`DECLS EXHS PAGE 19
`
`7
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`ordinary course of business shall not include any transfer or sale in satisfaction, partial or
`complete, of a debt owed by the Debtor or any transfer or sale to any shareholder or affiliate of
`the Debtor for consideration less than the consideration which would have been paid to the
`Debtor by an unaffiliated third party in an arms’ length transaction; and provided further that any
`such disposition shall not be unlawful or inconsistent with the terms of this Agreement or of any
`policy of insurance covering such Collateral.
`
`No Disposition. The Debtor covenants and agrees that it will not sell, assign,
`11.
`transfer, exchange, or otherwise dispose of, or grant any option with respect to, any of the
`Collateral, except as provided for in Section 10 hereof, nor will it create, incur, or permit to exist
`any Lien on or with respect to any of the Collateral, any interest therein, or any Proceeds thereof,
`except for the security interests and Liens granted or created in connection with this Agreement,
`the Secured Note or any other obligation of the Debtor in favor of the Secured Party.
`
`Representations and Warranties. The Debtor represents and warrants to the
`12.
`Secured Party throughout the term of this Agreement that:
`
`The Debtor is and will be the sole legal and beneficial owner of all of the
`(a)
`Collateral now owned or hereafter acquired free and clear of any Lien, security interest,
`assignment, option, or other charge or encumbrance, except for the Liens and security interests
`granted or created in connection with this Agreement, the Secured Note or any other obligation
`of the Debtor in favor of the Secured Party;
`
`This Agreement has been duly and validly authorized by the Debtor and
`(b)
`executed and delivered by the Debtor and constitutes the legal, valid, and binding obligation of
`the Debtor, enforceable against the Debtor in accordance with its terms (subject to applicable
`bankruptcy, reorganization, insolvency, moratorium, or similar laws affecting creditors’ rights
`generally and subject, as to enforceability, to equitable principles of general application
`(regardless of whether enforcement is sought in a proceeding in equity or at law)) and, subject to
`the performance of the relevant procedures as specified in Section 5 herein with respect to such
`Collateral, creates a valid, binding, enforceable, and first priority perfected security interest in
`and general first Lien upon all of the Collateral, and the Debtor is duly authorized to make all
`filings and take all other actions necessary or desirable to perfect and to continue perfected such
`security interest;
`
`As of the date hereof and on the date of delivery or transfer to the Secured
`(c)
`Party of any Collateral under this Agreement, the Debtor has good and marketable title to the
`Collateral;
`
`(d)
`
`The office where the Debtor maintains all records relating to the Collateral
`
`is located at:
`
`112 E Line Street
`Suite 204
`Tyler, TX 75702
`Attn: Manager
`
`DECLS EXHS PAGE 20
`
`8
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`The Debtor is a limited liability company duly organized and validly
`(e)
`existing under the laws of the State of Texas;
`
`(f)
`
`[Omitted.]
`
`All Pledged Equity in which the Debtor currently has or shall hereafter
`(g)
`acquire an interest is and will be, as applicable, duly authorized, validly existing, fully paid, and
`non-assessable (in the case of any equity interest in a corporation) and duly issued and
`outstanding (in the case of any equity interest in any other entity), and none of such Pledged
`Equity is or will be subject to any contractual restriction, or any restriction under the charter, by-
`laws, partnership agreement, or other organizational document of the respective issuer, upon the
`transfer of such Pledged Equity.
`
`Except pursuant to licenses and other user agreements entered into by the
`(h)
`Debtor in the ordinary course of business, the Debtor owns and possesses the right to use, and
`has done nothing to authorize or enable any other Person to use, any Copyright, Patent or
`Trademark owned or used by the Debtor on the date hereof, and all registrations therefor are
`valid and in full force and effect; and the Debtor owns or possesses the right to use all such
`Copyrights, Patents and Trademarks.
`
`To the Debtor’s knowledge, (i) there is no violation by others of any right
`(i)
`of the Debtor with respect to any Copyright, Patent or Trademark listed in Schedule 1, under the
`name of the Debtor and (ii) the Debtor is not infringing in any respect upon any Copyright,
`Patent or Trademark of any other Person; and no proceedings have been instituted or are pending
`against the Debtor or, to the Debtor’s knowledge, threatened, and no claim against the Debtor
`has been received by the Debtor, alleging any such violation.
`
`13.
`
`Covenants.
`
`(a)
`
`The Debtor shall:
`
`Maintain, or cause to be maintained, all items of the Collateral in
`(i)
`good condition and repair, ordinary wear and tear excepted in the case of Equipment, and pay, or
`cause to be paid, the costs of repairs to or maintenance of that Collateral which is of a type that
`could be repaired or maintained;
`
`of insurance;
`
`(ii)
`
`Not use any Collateral in violation of law or any applicable policy
`
`Pay or cause to be paid when due all taxes, assessments, and other
`(iii)
`charges relating to the Collateral or this Agreement and reimburse the Secured Party for all costs
`of and fees incurred in connection with any filing of the documents and instruments referred to in
`Section 5;
`
`Not change its: (a) name or the name under which it does business;
`(iv)
`(b) chief executive office; (c) type of organization; (d) jurisdiction of organization; or (e) other
`legal structure without at least thirty (30) days’ prior written notice to the Secured Party. Prior to
`effectuating any change described in the preceding sentence, the Debtor shall take or cause to be
`
`DECLS EXHS PAGE 21
`
`9
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`
`taken all actions deemed by the Secured Party to be necessary or desirable to prevent any
`financing or continuation statement from becoming seriously misleading or rendered ineffective,
`or the security interests granted herein from becoming unperfected or the relative priority thereof
`otherwise impaired, as a result of such removal or change;
`
`Perform and observe all the material terms and provisions of any
`(v)
`agreement for the sale or lease of goods, or any agreement for the rendering of services, giving
`rise to an Account to be performed or observed by it, maintain any such agreement in full force
`and effect, enforce any such agreement in accordance with its terms, and take all such action to
`such end as may be from time to time reasonably requested by the Secured Party.
`
`(b)
`
`The Debtor shall not, without the prior written consent of the Secured
`
`Party:
`
`Permit anything to be done that might impair the value of the
`(i)
`Collateral or adversely affect the security or Liens intended to be afforded by this Agreement in
`favor of the Secured Party;
`
`(ii) Modify, amend, or waive any terms or conditions of the Collateral
`or any rights or interests therein; or
`
`(iii) Waive any default under or breach of any agreement giving rise to
`or connected with any Account Receivable.
`
`14.
`
`Further Assurances and Protections.
`
`The Debtor shall at its expense do, file, record, make, execute, and deliver
`(a)
`all such acts, notices, instruments, statements, or other documents as the Secured Party may
`reasonably request (which request may be oral or in writing) to register in the name of the
`Secured Party, perfect, preserve, or otherwise protect the security interest and Liens of the
`Secured Party in the Collateral or any part thereof or to give effect to the rights, powers, and
`remedies of the Secured Party under this Agreement; and
`
`The Debtor will give prompt written notice to the Secured Party of, and
`(b)
`defend the Collateral against, any suit, action, or proceeding related to the Collateral or which
`could adversely affect the security interests and Liens granted hereunder.
`
`Events of Default. The occurrence of any of the following events or conditions
`15.
`shall constitute an event of default (each an “Event of Default”) under this Agreement:
`
`(a)
`
`The occurrence and continuation of an Event of Default as defined in the
`
`Secured Note;
`
`The Debtor fails to make, when due, any transfer, delivery, pledge,
`(b)
`assignment or grant of Collateral required to be made by it and that failure continues unremedied
`for five (5) business days after notice of that failure is given to the Debtor; or
`
`DECLS EXHS PAGE 22
`
`10
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`Case 5:18-md-02834-BLF Document 869-3 Filed 04/19/23 Page 13 of 21
`
`The failure or refusal by the Debtor to perform, or the breach or violation
`(c)
`of, any of the terms, obligations, covenants, or warranties of this Agreement or the Secured Note
`other than those specified in clause (b) and that failure or refusal continues unremedied for five
`(5) business days after notice of such failure or refusal is given to the Debtor.
`
`Remedies upon an Event of Default. On and after the occurrence and continuance
`16.
`of an Event of Default, all Obligations shall become immediately due and payable, upon notice
`by the Secured Party to the Debtor. In such event, the Secured Party may, in its discretion:
`
`request that the Debtor, and upon such request the Debtor shall, assemble
`(a)
`the Collateral at such place or places reasonably convenient to the Secured Party designated in
`such request;
`
`enforce collection of any of the Collateral by suit or any other lawful
`(b)
`means available to the Secured Party, or demand, collect, or receive any money or property at
`any time payable or receivable on account of or in exchange for any of the Collateral;
`
`surrender, release, or exchange or otherwise modify the terms of all or any
`(c)
`part of the Collateral, or compromise or extend or renew for any period any indebtedness
`thereunder or evidenced thereby;
`
`assert all other rights and remedies of a secured party under the UCC
`(d)
`(whether or not in effect in any applicable jurisdiction) and all other applicable law, including,
`without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options
`to purchase, or otherwise retain, liquidate, or dispose of all or any portion of the Collateral. The
`proceeds of any collection, liquidation, or other disposition of the Collateral shall be applied by
`the Secured Party first to the payment of all expenses (including, without limitation, all fees,
`taxes, reasonable attorneys’ fees and legal expenses) incurred by the Secured Party in connection
`with retaking, holding, collecting, or liquidating the Collateral. The balance of such proceeds, if
`any, shall, to the extent permitted by law, be applied to the payment of the Obligations in such
`order of application as determined by the Secured Party in its sole discretion to the extent such
`order of application is not inconsistent with applicable law. In case of any deficiency, the Debtor
`shall, whether or not then due, remain liable therefor. If notice prior to disposition of the
`Collateral or any portion thereof is necessary under applicable law, written notice mailed to the
`Debtor at its notice address specified on the signature page hereof five (5) business days prior to
`the date of such disposition shall constitute reasonable notice, but notice given in any other
`reasonable manner shall be sufficient. Without precluding any other methods of sale or other
`disposition, the sale or other disposition of the Collateral or any portion thereof shall have been
`made in a commercially reasonable manner if conducted in conformity with reasonable
`commerc