{"id":43349,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/collateral-assignment-and-security-agreement-cyberian-outpost.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"collateral-assignment-and-security-agreement-cyberian-outpost","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/collateral-assignment-and-security-agreement-cyberian-outpost.html","title":{"rendered":"Collateral Assignment and Security Agreement &#8211; Cyberian Outpost Inc. and Fry&#8217;s Electronics Inc."},"content":{"rendered":"<pre>                 COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT\n\n          COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT, dated as of September 4,\n2001, made by CYBERIAN OUTPOST, INC., a Delaware corporation (the \"Company\"), in\n                                                                   -------      \nfavor of FRY'S ELECTRONICS, INC., a California corporation (the \"Holder\").\n                                                                 ------   \n\n                             W I T N E S S E T H:\n                             --------------------\n\n          WHEREAS, the Company and the Holder are parties to that certain\nSecured Promissory Note, dated as of September 4, 2001 (the \"Note\"), in the\n                                                             ----          \nprincipal amount of $13,000,000;\n\n          WHEREAS, pursuant to the Note, the Holder has agreed to make loans to\nthe Company upon the terms and subject to the conditions set forth therein; and\n\n          WHEREAS, it is a condition to the obligation of the Holder to make the\nloans to the Company under the Note, that the Company shall have executed and\ndelivered this Collateral Assignment and Security Agreement to the Holder.\n\n          NOW, THEREFORE, in consideration of the premises and to induce the\nHolder to enter into the Note, and to induce the Holder to make the loans to the\nCompany, the Company hereby agrees with the Holder as follows:\n\n          1.   Defined Terms.\n               ------------- \n\n          1.1  Definitions. (a) Unless otherwise defined herein, terms defined\n               -----------\nin the Note and used herein shall have the meanings given to them in the Note,\nand the following terms which are defined in the Uniform Commercial Code in\neffect in the State of New York on the date hereof are used herein as so\ndefined: Accounts, Certificated Security, Chattel Paper, Documents, Equipment,\nGeneral Intangibles, Instruments, Inventory, Investment Property, Letter-of-\nCredit Rights, Proceeds and Supporting Obligations.\n\n          (b)  The following terms shall have the following meanings:\n\n          \"Agreement\": this Collateral Assignment and Security Agreement, as\n           ---------                                                         \n     the same may be amended, supplemented or otherwise modified from time to\n     time.\n\n          \"Code\": the Uniform Commercial Code as from time to time in effect in\n           ----                                                                 \n     the State of New York.\n\n          \"Collateral\": as defined in Section 2.\n           ----------                            \n\n          \"Copyrights\": (i) all copyrights arising under the laws of the United\n           ----------                                                           \n     States, any other country or any political subdivision thereof, whether\n     registered or unregistered and whether published or unpublished, all\n     registrations and recordings thereof, and all applications in connection\n     therewith, including, without limitation, all registrations, recordings and\n     applications in the United States Copyright Office, and (ii) the right to\n     obtain all renewals thereof.\n\n \n                                                                               2\n\n\n\n          \"Copyright Licenses\": any written agreement naming the Company as\n           ------------------                                               \n     licensor or licensee, granting any right under any Copyright, including,\n     without limitation, the grant of rights to manufacture, distribute, exploit\n     and sell materials derived from any Copyright.\n\n          \"Deposit Accounts\": as defined in the Uniform Commercial Code of any\n           ----------------                                                    \n     applicable jurisdiction and, in any event, including, without limitation,\n     any demand, time, savings, passbook or like account maintained with a\n     depositary institution.\n\n          \"Intellectual Property\": the collective reference to all rights,\n           ---------------------                                           \n     priorities and privileges relating to intellectual property, whether\n     arising under United States, multinational or foreign laws or otherwise,\n     including, without limitation, the Copyrights, the Copyright Licenses, the\n     Patents, the Patent Licenses, the Trademarks and the Trademark Licenses,\n     and all rights to sue at law or in equity for any infringement or other\n     impairment thereof, including the right to receive all proceeds and damages\n     therefrom.\n\n          \"Lien\": any mortgage, pledge, hypothecation, assignment, deposit\n           ----                                                            \n     arrangement, encumbrance, lien (statutory or other), charge or other\n     security interest or any preference, priority or other security agreement\n     or preferential arrangement of any kind or nature whatsoever (including any\n     conditional sale or other title retention agreement and any capital lease\n     having substantially the same economic effect as any of the foregoing).\n\n          \"Obligations\": the collective reference to the unpaid principal of\n           -----------                                                       \n     and interest on the loans made under the Note and all other obligations and\n     liabilities of the Company to the Holder, whether direct or indirect,\n     absolute or contingent, due or to become due, or now existing or hereafter\n     incurred, which may arise under, out of, or in connection with, the Note,\n     any guarantee made pursuant to Section 1.2 of the Note, or this Agreement.\n\n          \"Patents\": (i) all letters patent of the United States, any other\n           -------                                                          \n     country or any political subdivision thereof, all reissues and extensions\n     thereof and all goodwill associated therewith, (ii) all applications for\n     letters patent of the United States or any other country and all divisions,\n     continuations and continuations-in-part thereof and (iii) all rights to\n     obtain any reissues or extensions of the foregoing.\n\n          \"Patent License\": all agreements, whether written or oral, providing\n           --------------                                                      \n     for the grant by or to the Company of any right to manufacture, use or sell\n     any invention covered in whole or in part by a Patent.\n\n          \"Permitted Encumbrances\": (i) liens of warehousemen, mechanics,\n           ----------------------                                        \n     materialmen, workers, repairmen, common carriers, or landlords, liens for\n     taxes, assessments or other governmental charges (other than federal tax\n     and ERISA liens), and other similar liens arising by operation of law, in\n     each case arising in the ordinary course of business and for amounts that\n     are not yet due and payable or which are being contested in good faith by\n     appropriate proceedings promptly instituted and diligently conducted and\n     for which an adequate reserve or other appropriate provision shall have\n     been made to the extent required by generally accepted accounting\n     principals; (ii) pledges or deposits in connection with workers'\n     compensation, unemployment insurance and other social security legislation;\n     (iii) deposits to secure the performance of bids, trade contracts (other\n     than for borrowed money), statutory obligations, surety and appeal bonds,\n     performance\n\n \n                                                                               3\n\n     bonds and other obligations of a like nature incurred in the ordinary\n     course of business; and (iv) the lessor's interest in property leased to\n     the Company.\n\n          \"Receivable\": any right to payment for goods sold or leased or for\n           ----------                                                        \n     services rendered, whether or not such right is evidenced by an Instrument\n     or Chattel Paper and whether or not it has been earned by performance\n     (including, without limitation, any Account).\n\n          \"Trademarks\": (i) all trademarks, trade names, corporate names,\n           ----------                                                     \n     company names, business names, fictitious business names, trade styles,\n     service marks, logos and other source or business identifiers, and all\n     goodwill associated therewith, now existing or hereafter adopted or\n     acquired, all registrations and recordings thereof, and all applications in\n     connection therewith, whether in the United States Patent and Trademark\n     Office or in any similar office or agency of the United States, any State\n     thereof or any other country or any political subdivision thereof, or\n     otherwise, and all common-law rights related thereto, and (ii) the right to\n     obtain all renewals thereof.\n\n          \"Trademark License\" means any agreement, written or oral, providing\n           -----------------                                                 \n     for the grant by or to the Company of any right to use any Trademark.\n\n          \"Vehicles\" means all cars, trucks, trailers, construction and earth\n           --------                                                          \n     moving equipment and other vehicles covered by a certificate of title law\n     of any state and all tires and other appurtenances to any of the foregoing.\n\n          1.2  Other Definitional Provisions. (a) The words \"hereof,\" \"herein,\"\n               -----------------------------\n\"hereto\" and \"hereunder\" and words of similar import when used in this Agreement\nshall refer to this Agreement as a whole and not to any particular provision of\nthis Agreement, and Section, subsection and Schedule references are to this\nAgreement unless otherwise specified.\n\n          (b)  The meanings given to terms defined herein shall be equally\napplicable to both the singular and plural forms of such terms.\n\n          2.   Grant of Security Interest. As collateral security for the prompt\n               --------------------------                                 \nand complete payment and performance when due (whether at the stated maturity,\nby acceleration or otherwise) of the Obligations, the Company hereby grants to\nthe Holder a security interest in all of the following property now owned or at\nany time hereafter acquired by the Company or in which the Company now has or at\nany time in the future may acquire any right, title or interest (collectively,\nthe \"Collateral\"):\n     ----------   \n\n          (a)  all Accounts;\n               \n          (b)  all Chattel Paper;\n               \n          (c)  all Deposit Accounts;\n               \n          (d)  all Documents;\n               \n          (e)  all Equipment;\n               \n          (f)  all General Intangibles;\n\n \n                                                                               4\n\n          (g)  all Instruments;\n               \n          (h)  all Intellectual Property;\n               \n          (i)  all Inventory;\n               \n          (j)  all Investment Property;\n               \n          (k)  all Letter-of-Credit Rights;\n               \n          (l)  all Vehicles;\n\n          (m)  all other property not otherwise described above;\n\n          (n)  all books and records pertaining to the Collateral; and\n\n          (o)  to the extent not otherwise included, all Proceeds, Supporting\nObligations and products of any and all of the foregoing and all collateral\nsecurity and guarantees given by any person with respect to any of the\nforegoing.\n\n          3.   Representations and Warranties. The Company hereby represents and\n               ------------------------------\nwarrants that:\n\n          3.1  Title; No Other Liens. Except for the security interest granted\n               ---------------------\nto the Holder pursuant to this Agreement, and other than as set forth on\nSchedule 1, the Company owns each item of the Collateral free and clear of any\n----------                       \nand all Liens or claims of others other than Permitted Encumbrances. Other than\nas set forth on Schedule 1, no financing statement or other public notice with\n                ----------    \nrespect to all or any part of the Collateral is on file or of record in any\npublic office, except such as have been filed in favor of the Holder pursuant to\nthis Agreement.\n\n          3.2  Perfected First Priority Liens. The security interests granted\n               ------------------------------\npursuant to this Agreement (a) upon completion of the filings and other actions\nspecified on Schedule 2 will constitute perfected security interests in the\n             ----------     \nCollateral (other than security interest in vehicles granted hereunder which\nshall not be required to be perfected) in favor of the Holder, as collateral\nsecurity for the Obligations and (b) other than as set forth on Schedule 1, are\n                                     -------------------------------------  \nprior to all other Liens on the Collateral in existence on the date hereof.\n\n          3.3  Inventory and Equipment. The Inventory and the Equipment are kept\n               ----------------------- \nat the locations listed on Schedule 3.\n                           ---------- \n\n          3.4  Jurisdiction of Organization; Chief Executive Office. The\n               ----------------------------------------------------\nCompany's jurisdiction of organization is Delaware, its identification number\nfrom Delaware is 2905438 and its chief executive office or sole place of\nbusiness is located at 23 North Main Street, Kent, Connecticut 06757. The\nCompany has delivered to the Holder a copy of its Certificate of Incorporation\ncertified by the Secretary of State of the State of Delaware. Schedule 4 lists\nall Intellectual Property owned by the Company in its own name as of the date\nhereof.\n\n          4.   Covenants. The Company covenants and agrees with the Holder that,\n               ---------\nfrom and after the date of this Agreement until the Obligations shall have been\npaid in full:\n\n \n                                                                               5\n\n          4.1  Delivery of Instruments, Certificated Securities and Chattel\n               ------------------------------------------------------------\nPaper. If any amount payable under or in connection with any of the Collateral\n-----\nshall be or become evidenced by any Instrument, Certificated Security or Chattel\nPaper, such Instrument, Certificated Security or Chattel Paper shall be\nimmediately delivered to the Holder, duly endorsed in a manner satisfactory to\nthe Holder, to be held as Collateral pursuant to this Agreement.\n\n          4.2  Maintenance of Perfected Security Interest; Liens; Further\n               ----------------------------------------------------------\nDocumentation. (a) The Company shall maintain the security interest created by\n-------------\nthis Agreement as a perfected security interest having at least the priority\ndescribed in subsection 3.2 and shall defend such security interest against the\nclaims and demands of all persons whomsoever.\n\n          (b)  The Company will furnish to the Holder from time to time\nstatements and schedules further identifying and describing the assets and\nproperty of the Company and such other reports in connection therewith as the\nHolder may reasonably request, all in reasonable detail.\n\n          (c)  The Company will not create, incur, assume or suffer to exist any\nLien upon any of its property, whether now or hereafter acquired, except for (i)\nthe Liens created by this Agreement, (ii) those Liens set forth on Schedule 1\nand (iii) Permitted Encumbrances.\n\n          (d)  At any time and from time to time, upon the written request of\nthe Holder, and at the sole expense of the Company, the Company will promptly\nand duly execute and deliver such further instruments and documents and take\nsuch further actions as the Holder may reasonably request for the purpose of\nobtaining or preserving the full benefits of this Agreement and of the rights\nand powers herein granted, including, without limitation, (i) the filing of any\nfinancing or continuation statements under the Uniform Commercial Code (or other\nsimilar laws) in effect in any jurisdiction with respect to the security\ninterests created hereby and (ii) in the case of Investment Property, Deposit\nAccounts, Letter-of-Credit Rights and any other relevant Collateral, taking any\nactions necessary to enable the Holder to obtain \"control\" (within the meaning\nof the applicable Uniform Commercial Code) with respect thereto.\n\n          4.3  Changes in Locations, Name, etc. The Company will not, except\n               --------------------------------\nupon 15 days' prior written notice to the Holder and delivery to the Holder of\n(a) all additional executed financing statements and other documents reasonably\nrequested by the Holder to maintain the validity, perfection and priority of the\nsecurity interests provided for herein and (b) if applicable, a written\nsupplement to Schedule 3 showing any additional location at which Inventory or\n              ----------            \nEquipment shall be kept:\n\n          (a)  permit any of the Inventory or Equipment to be kept at a location\nother than those listed on Schedule 3;\n                           ---------- \n\n          (b)  change its jurisdiction of organization or the location of its\nchief executive office or sole place of business from that specified in\nsubsection 3.4; or\n\n          (c)  change its name.\n\n          4.4  Intellectual Property.\n               --------------------- \n\n \n                                                                               6\n\n\n          (a)  The Company (either itself or through licensees) will not do any\nact, or omit to do any act, whereby any material Patent may become forfeited,\nabandoned or dedicated to the public.\n\n          (b)  The Company (either itself or through licensees) will not do any\nact that knowingly uses any material Intellectual Property to infringe the\nintellectual property rights of any other Person.\n\n          (c)  The Company will notify the Holder immediately if it knows, or\nhas reason to know, that any application or registration relating to any\nmaterial Intellectual Property may become forfeited, abandoned or dedicated to\nthe public, or of any adverse determination or development (including, without\nlimitation, the institution of, or any such determination or development in, any\nproceeding in the United States Patent and Trademark Office, the United States\nCopyright Office or any court or tribunal in any country) regarding the\nCompany's ownership of, or the validity of, any material Intellectual Property\nor the Company's right to register the same or to own and maintain the same.\n\n          (d)  Whenever such Company, either by itself or through any agent,\nemployee, licensee or designee, shall file an application for the registration\nof any Intellectual Property with the United States Patent and Trademark Office,\nthe United States Copyright Office or any similar office or agency in any other\ncountry or any political subdivision thereof, the Company shall report such\nfiling to the Holder within five Business Days after the last day of the fiscal\nquarter in which such filing occurs. Upon request of the Holder, the Company\nshall execute and deliver, and have recorded, any and all agreements,\ninstruments, documents, and papers as the Holder may request to evidence the\nHolders' security interest in any Copyright, Patent or Trademark and the\ngoodwill and general intangibles of the Company relating thereto or represented\nthereby.\n\n          (e)  The Company will take all reasonable and necessary steps,\nincluding, without limitation, in any proceeding before the United States Patent\nand Trademark Office, the United States Copyright Office or any similar office\nor agency in any other country or any political subdivision thereof, to maintain\nand pursue each application (and to obtain the relevant registration) and to\nmaintain each registration of the material Intellectual Property, including,\nwithout limitation, filing of applications for renewal, affidavits of use and\naffidavits of incontestability.\n\n          In the event that any material Intellectual Property is infringed,\nmisappropriated or diluted by a third party, the Company shall (i) take such\nactions as the Company shall reasonably deem appropriate under the circumstances\nto protect such Intellectual Property and (ii) if such Intellectual Property is\nof material economic value, promptly notify the Holder after it learns thereof\nand sue for infringement, misappropriation or dilution, to seek injunctive\nrelief where appropriate and to recover any and all damages for such\ninfringement, misappropriation or dilution.\n\n          4.5  Notices. The Company will advise the Holder promptly, in\n               -------\nreasonable detail, of:\n\n          (a)  any Lien (other than security interests created hereby or those\nlisted on Schedule 1) on any of the Collateral which would adversely affect the\n          ----------                                                           \nability of the Holder to exercise any of its remedies hereunder; and\n\n \n                                                                               7\n\n          (b)  of the occurrence of any other event which could reasonably be\nexpected to have a material adverse effect on the aggregate value of the\nCollateral or on the security interests created hereby.\n\n          5.   Remedies. If an Event of Default shall occur and be continuing,\n               --------\nthe Holder may exercise, in addition to all other rights and remedies granted to\nit in this Agreement and in any other instrument or agreement securing,\nevidencing or relating to the Obligations, all rights and remedies of a secured\nparty under the Code.\n\n          6.   Execution of Financing Statements. Pursuant to any applicable\n               ---------------------------------                             \nlaw, the Company authorizes the Holder to file or record financing statements\nand other filing or recording documents or instruments with respect to the\nCollateral without the signature of the Company in such form and in such offices\nas the Holder determines appropriate to perfect the security interests of the\nHolder under this Agreement. The Company authorizes the Holder to use the\ncollateral description \"all personal property\" in any such financing statements.\n\n          7.   Severability. Any provision of this Agreement which is prohibited\n               ------------\nor unenforceable in any jurisdiction shall, as to such jurisdiction, be\nineffective to the extent of such prohibition or unenforceability without\ninvalidating the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction shall not invalidate or render\nunenforceable such provision in any other jurisdiction.\n\n          8.   Amendments in Writing. None of the terms or provisions of this\n               ---------------------\nAgreement may be waived, amended, supplemented or otherwise modified except by a\nwritten instrument executed by the Company and the Holder.\n\n          9.   No Waiver by Course of Conduct; Cumulative Remedies. The Holder\n               ---------------------------------------------------\nshall not by any act (except by a written instrument pursuant to Section 8),\ndelay, indulgence, omission or otherwise be deemed to have waived any right or\nremedy hereunder or to have acquiesced in any Event of Default. No failure to\nexercise, nor any delay in exercising, on the part of the Holder, any right,\npower or privilege hereunder shall operate as a waiver thereof. No single or\npartial exercise of any right, power or privilege hereunder shall preclude any\nother or further exercise thereof or the exercise of any other right, power or\nprivilege. A waiver by the Holder of any right or remedy hereunder on any one\noccasion shall not be construed as a bar to any right or remedy which the Holder\nwould otherwise have on any future occasion. The rights and remedies herein\nprovided are cumulative, may be exercised singly or concurrently and are not\nexclusive of any other rights or remedies provided by law.\n\n          10.  Enforcement Expenses; Indemnification. (a) The Company agrees to\n               -------------------------------------\npay or reimburse the Holder for all its costs and expenses incurred in enforcing\nor preserving any rights under this Agreement, including, without limitation,\nthe fees and disbursements of counsel (including the allocated fees and expenses\nof in-house counsel) to the Holder.\n\n          (b)  The Company agrees to pay, and to save the Holder harmless from,\nany and all liabilities with respect to, or resulting from any delay in paying,\nany and all stamp, excise, sales or other taxes which may be payable or\ndetermined to be payable with respect to any of the Collateral or in connection\nwith any of the transactions contemplated by this Agreement.\n\n \n                                                                               8\n\n          (c)  The Company agrees to pay, and to save the Holder harmless from,\nany and all liabilities, obligations, losses, damages, penalties, actions,\njudgments, suits, costs, expenses or disbursements of any kind or nature\nwhatsoever (other than those resulting from the gross negligence or willful\nmisconduct of the Holder) with respect to the execution, delivery, enforcement,\nperformance and administration of this Agreement.\n\n          (d)  The agreements in this Section 10 shall survive repayment of the\nObligations and all other amounts payable under the Note.\n\n          11.  Notices. All notices, requests and demands to or upon the Holder\n               -------\nhereunder shall be effected in the manner provided for in the Note.\n\n          12.  Section Headings. The Section and subsection headings used in\n               ----------------\nthis Agreement are for convenience of reference only and are not to affect the\nconstruction hereof or be taken into consideration in the interpretation hereof.\n\n          13.  Successors and Assigns. This Agreement shall be binding upon the\n               ----------------------\nsuccessors and assigns of the Company and shall inure to the benefit of the\nHolder and its successors and assigns.\n\n          14.  Governing Law. This Agreement shall be governed by, and construed\n               -------------\nand interpreted in accordance with, the law of the State of New York.\n\n          15.  WAIVER OF JURY TRIAL. THE COMPANY HEREBY IRREVOCABLY AND\n               --------------------                                     \nUNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING\nTO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.\n\n \n                                                                               9\n\n          IN WITNESS WHEREOF, the undersigned has caused this Collateral\nAssignment and Security Agreement to be duly executed and delivered as of the\ndate first above written.\n\n                                  CYBERIAN OUTPOST, INC.\n                            \n                            \n                            \n                                  By: \/s\/ Darryl Peck\n                                      -------------------------------\n                                       Name:  Darryl Peck\n                                       Title: CEO\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7254],"corporate_contracts_industries":[9497],"corporate_contracts_types":[9622,9626],"class_list":["post-43349","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-cyberian-outpost-inc","corporate_contracts_industries-retail__electronics","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43349","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43349"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43349"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43349"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43349"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}