f8k081808ex10ii_adex.htm


    Exhibit 10.2

     

    
      SECURITY
AGREEMENT

       

      THIS SECURITY AGREEMENT
(this “Security
Agreement”) is made as of August 12, 2008 (“Effective
Date”) by and between AdEx Media, Inc., a Delaware corporation, with a
principal place of business at 883 North Shoreline Blvd. #A200, Mountain View,
Delaware 94043 (“Maker”)
and Digital Equity Partners, LLC (the “Holder”).

       

      RECITALS

       

      WHEREAS,
Maker and the Members (the “Selling Members”) of Digital Instructor, LLC, a
Colorado limited liability company with a principal place of business at 6899
Winchester Circle # 103, Boulder, CO 80301 (the “Company”)
are parties to that certain Membership Interest Purchase Agreement dated August
12, 2008 (“Purchase
Agreement”) whereby Maker is purchasing all issued and outstanding
membership interests (the “Membership
Interest”) from the Selling Members in consideration for the payment to
the Selling Members of their pro rata portion of the Purchase Price (as defined
in the Purchase Agreement);

       

      WHEREAS,
Maker, in connection with the Purchase Agreement, is issuing to the Holder a
Senior Secured Promissory Note (the “Note”)
evidencing the Maker’s obligation to pay the Holder, as partial consideration,
$500,000 on the terms and conditions set forth in the Note;
and

       

      WHEREAS,
the parties have agreed that the Maker’s obligations under such Note will be
secured by the Maker’s grant to the Holder of a senior security interest in and
to certain Collateral (as defined below), pursuant to the terms and conditions
of this Security Agreement;

       

      NOW,
THEREFORE, in consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth below, the parties hereto,
intending to be legally bound, hereby agree as follows:

       

      1.    SECURITY.

       

      1.1     Grant
of Security Interest.  As security for the prompt and punctual
payment and performance of all Indebtedness (as defined below) of the Maker to
the Holder when and as due under the Note, the Maker hereby grants to the Holder
a senior security interest in the Collateral (as defined below).  For
purposes of this Security Agreement, “Indebtedness”
means all obligations and liabilities of the Maker to the Holder under (i) the
Note issued to the Holder, and (ii) this Security Agreement.

       

      1.2     Collateral
Defined.  As used in this Security Agreement, the term “Collateral”
means the Membership Interest and all proceeds thereof.

       

       

      
        
          
          

        

        
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      1.3     First
Priority Security Interest.  It is the intention of the parties
to create in Holder a first priority security interest in the Collateral, and
Maker shall take all necessary actions to cause the security interest created
hereby to have such priority.  So long as any Indebtedness to the
Holder has not been fully satisfied, the Maker will promptly execute and deliver
to the Holder such assignments, notices, financing statements or other documents
and papers as the Holder may reasonably require in order to perfect and maintain
the security interest in the Collateral granted to the Holder hereby and to give
any third party notice of the Holder’s interest in the Collateral. Upon the full
and final discharge of all of the Indebtedness, the Holder will execute and
deliver such documents, notices, termination statements or other documents and
papers as may be reasonably necessary and requested by the Maker to release the
Collateral from the security interest granted to the Holder in this Security
Agreement.

       

      2.    RIGHTS
AND REMEDIES UPON EVENT OF DEFAULT.

       

      2.1     General
Remedies.  In the event of an occurrence of an Event of Default
(as that term is defined in the Note), in addition to exercising any other
rights or remedies the Holder may have under the Note, at law or in equity, or
pursuant to the provisions of the Delaware Uniform Commercial Code, the Holder
may, at its option, and without demand first made, exercise any one or all of
the following rights and remedies: (i) collect the Collateral and its proceeds;
(ii) take possession of the Collateral wherever it may be found, using all
reasonable means to do so, or require the Maker to assemble the Collateral and
make it available to the Holder at a place designated by the Holder that is
reasonably convenient to the Maker; (iii) proceed with the foreclosure of the
security interest in the Collateral granted herein and the sale or endorsement
and collection of the proceeds of the Collateral in any manner permitted by law
or provided for herein; (iv) sell, lease or otherwise dispose of the Collateral
at public or private sale, with or without having the Collateral at the place of
sale; (v) institute a suit or other action against the Maker for recovery on the
Note or to obtain possession or effect a sale of the Collateral; (vi) exercise
any rights and remedies of a secured party under the Delaware Uniform Commercial
Code; and/or (vii) offset, against any payment due from the Maker to the Holder,
the whole or any part of any Indebtedness of the Holder to the
Maker.

       

      2.2     Limited
Power of Attorney.  After an Event of Default resulting in the
enforcement of the rights hereunder, the Maker does hereby make, constitute and
appoint the Holder or any agent of the Holder as the Maker's true and lawful
attorney-in-fact, with power to (a) sign any assignments of the leases or
subleases included in the Collateral reasonably necessary to return such leases
or subleases to Holder, and (b) endorse the name of the Maker or any of the
Maker's mangers, officers or agents upon any notes, checks, drafts, money
orders, or other instruments of payment or Collateral that may come into the
Holder’s (including any agent of Holder) possession in full or part payment of
any Indebtedness.  The Maker hereby ratifies all that said attorney
shall lawfully do or cause to be done by virtue hereof.  This power of
attorney is coupled with an interest, and is irrevocable.

       

       

      
        
          
          

        

        
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      2.3     No
Election of Remedies.  The election by the Holder of any right
or remedy will not prevent the Holder from exercising any other right or remedy
against the Maker.

       

      2.4     Proceeds.  If
an Event of Default (as defined in the Note) occurs, all proceeds and payments
with respect to the Collateral will be retained by the Holder (or if received by
the Maker will be held in trust and will be forthwith delivered by the Maker to
the Holder in the original form received, endorsed in blank) and held by the
Holder as part of the Collateral or applied by the Holder to the payment of the
Indebtedness.

       

      2.5     Sales
of Collateral.  Any item of Collateral may be sold for cash or
other value at public or private sale or other disposition and the proceeds
thereof collected by or for the Holder as provided in the Delaware Uniform
Commercial Code or under other applicable law.  The Maker agrees to
promptly execute and deliver, or promptly cause to be executed and delivered,
such instruments, documents, assignments, waivers, certificates and affidavits
and supply or cause to be supplied such further information and take such
further action as the Holder may reasonably require in connection with any such
sale or disposition.  The Holder will have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Maker, which right or equity is
hereby waived or released.  If any notice of a proposed sale, lease,
license or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least ten (10) days before
such sale, lease, license or other disposition.  The Holder agrees to
give the Maker ten (10) days’ prior written notice of any sale, lease, license
or other disposition of Collateral (or any part thereof) by the
Holder.

       

      2.6     Application
of Proceeds.  The proceeds of all sales and collections in
respect of the Collateral, the application of which is not otherwise
specifically herein provided for, will be applied as follows:  (i)
first, to the payment of the costs and expenses of such sale or sales; (ii)
second, any surplus then remaining will be applied to the payment of unpaid
principal under the Note; and (iii) third, any surplus then remaining will be
paid to the Maker.

       

      2.7     Warranties
and Representations.  Maker warrants and represents that as of
the Closing Date, Maker has good, indefeasible and merchantable title to and
ownership of the Collateral, free and clear of all liens.

       

      2.8     Covenants.  Until
the Indebtedness are fully paid, performed and satisfied and this Agreement is
terminated, Maker covenants that it shall:

       

      2.8.1 Defend in
good faith the Collateral against the claims and demands of all
persons;

       

      2.8.2 Advise
Holder in writing, at least thirty (30) days prior thereto, of any change in
Maker’s principal place of business, registered office or other places of
business, or the opening of any new places of business, or any change in Maker’s
name or the adoption by Maker of trade names, assumed names or fictitious
names;

       

       

       

      
        
          
          

        

        
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      2.8.3 Notify
Holder in writing immediately upon the creation of any Accounts (as defined by
the UCC) with respect to which the account debtor is the United States of
America or any department, agency or instrumentality thereof, or any foreign
government or instrumentality thereof or any business which is located in a
foreign country;

       

      2.8.4 Mark its
books and records of Accounts to indicate the security interest granted to
Holder under this Agreement;

       

      2.8.5 Immediately
notify Holder in writing of any information, which Maker has or may receive with
respect to the Collateral, which might in any manner materially adversely affect
the value thereof, or the rights of Holder with respect
thereto;

       

      2.8.6 Not
encumber, pledge, mortgage, grant a security interest in, assign, sell, lease or
otherwise dispose of or transfer, whether by sale, merger, consolidation,
liquidation, dissolution or otherwise, any of the
Collateral.

       

      3.    GENERAL
PROVISIONS.

       

      3.1     No
Third Party Beneficiaries; Construction.  Nothing in this
Security Agreement, express or implied, is intended to confer upon any third
party any rights, remedies, obligations, or liabilities under or by reason of
this Security Agreement, except as expressly provided in this Security
Agreement.  This Security Agreement and its exhibits are the result of
negotiations between the parties and have been reviewed by each party hereto;
accordingly, this Security Agreement will be deemed to be the product of the
parties hereto, and no ambiguity will be construed in favor of or against any
party.

       

      3.2     Rights
and Remedies Cumulative.  The rights and remedies of the Holder
herein provided will be cumulative and not exclusive of any other rights or
remedies provided by law, in equity, by contract or
otherwise.

       

      3.3     Attorneys’
Fees.  If any party hereto commences or maintains any action at
law or in equity (including counterclaims or cross-complaints) against the other
party hereto by reason of the breach or claimed breach of any term or provision
of this Security Agreement, then the prevailing party in said action will be
entitled to recover its reasonable attorney’s fees and court costs incurred
therein.

       

      3.4     Successors
and Assigns.  The terms and conditions of this Security
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties.  Any transferee of the Note
shall automatically and without any further action become a secured party for
all purposes hereunder, subject to the terms and conditions of the
Note.

       

      3.5     Governing
Law.  This Security Agreement shall be construed and enforced
in accordance with the laws of the State of Delaware without reference to
principles of conflict of law.

       

       

      
        
          
          

        

        
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      3.6     Counterparts;
Facsimiles.  This Security Agreement may be executed and
delivered by facsimile signature and in two (2) or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one
instrument.

       

      3.7     Headings.  The
headings and captions used in this Security Agreement are used only for
convenience and are not to be considered in construing or interpreting this
Security Agreement.  All references in this Security Agreement to
sections, paragraphs, exhibits and schedules shall, unless otherwise provided,
refer to sections and paragraphs hereof and exhibits and schedules attached
hereto, all of which exhibits and schedules are incorporated herein by this
reference.

       

      3.8     Severability.  If
one or more provisions of this Security Agreement are held to be unenforceable
under applicable law, such provision(s) shall be excluded from this Security
Agreement and the balance of the Security Agreement shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.

       

      3.9     Further
Assurances.  From and after the date of this Security
Agreement, upon the request of the Holder or the Maker, the Maker and the Holder
shall execute and deliver such instruments, documents or other writings as may
be reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Security Agreement.

       

      3.10     Amendment
and Waivers.  This Security Agreement may be amended only by a
written agreement executed by each of the parties hereto.  No
amendment of or waiver of, or modification of any obligation under this Security
Agreement will be enforceable unless set forth in a writing signed by the party
against which enforcement is sought.  Any amendment effected in
accordance with this section will be binding upon all parties hereto and each of
their respective successors and assigns.  No delay or failure to
require performance of any provision of this Security Agreement shall constitute
a waiver of that provision as to that or any other instance.  No
waiver granted under this Security Agreement as to any one provision herein
shall constitute a subsequent waiver of such provision or of any other provision
herein, nor shall it constitute the waiver of any performance other than the
actual performance specifically waived.

       

      3.11     Entire
Agreement.  This Security Agreement, the documents referred to
herein, and any other agreements executed as of the date hereof together
constitute the entire agreement between the parties hereto pertaining to the
subject matter hereof, and any and all other written or oral agreements existing
between the parties hereto are expressly canceled.

       

      3.12     Notice.
Any notice required or permitted by this Security Agreement shall be in writing
and shall be deemed sufficient upon delivery, when delivered personally or by
overnight courier or sent by telegram or fax, or forty-eight (48) hours after
being deposited in the U.S. Mail, as certified or registered mail, with postage
prepaid, addressed to the party to be notified at the address or facsimile
number set forth on the signature page below, or at such other address or
facsimile number as such other party may designate by one of the indicated means
of notice herein to the other party, and if to Holder, with a copy to Giovanni
Ruscitti, Esq., Berg Hill Greenleaf & Ruscitti LLP, 1712 Pearl Street,
Boulder CO 80302, facsimile to (303) 402-1601, and if to the Maker, at the
Maker’s principal executive office, with a copy to Eric K. Ferraro, Esq.,
Bullivant Houser Bailey PC, 601 Delaware Street, Suite 1800, San Francisco, CA
94108, facsimile to (415) 352-2701.

       

       

      
        
          
          

        

        
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      IN WITNESS WHEREOF, the
parties have caused this SECURITY AGREEMENT to be executed and delivered as of
the date first above written.

       

       

       

       

      
        
          	
                  AdEx
      Media, Inc.

                   

                   

                   

                	 
      	
                  Digital
      Equity Partners LLC

                   

                   

                
	
                  By:

                	 
      	 
      	
                  By:

                	 
      
	
                  Name:

                	 
      	 
      	
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                  Title:

                	 
      	 
      	
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