Filed by Bowne Pure Compliance



 




Exhibit 4.5




SECURITY AGREEMENT




SECURITY AGREEMENT, dated as of January 15, 2008 (this “Agreement”), between SMART
MOVE, INC., a Delaware corporation (the “Company), and the lenders identified on the
signature page hereto (the “Lenders”).



WHEREAS, the Company and the Lenders are party to that certain Securities Purchase Agreement
dated the date hereof (the “SPA”);



WHEREAS, it is intended hereby that all obligations of the Company to the Lenders under the
Transaction Documents (as defined in the SPA) and other agreements to which the Company and Lenders
are from time to time party be secured by the personal property assets of the Company herein
described;



NOW, THEREFORE, in consideration of the promises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:




1. Definitions.



(a) Capitalized terms used herein without definition (by cross-reference or otherwise) shall
have the meanings provided for such terms (by cross-reference or otherwise) in the SPA.



(b) The following capitalized terms, when used herein, shall have the meanings provided for
such terms in Article 9 of the NYUCC (as hereafter defined): Accession, Account, Cash Proceeds,
Certificate of Title, Chattel Paper, Commercial Tort Claim, Commodity Account, Commodity Contract,
Commodity Intermediary, Deposit Account, Document, Electronic Chattel Paper, Equipment, Farm
Products, General Intangible, Goods, Health-Care-Insurance Receivable, Instrument, Inventory,
Investment Property, Letter-of-Credit Right, Non-Cash Proceeds, Payment Intangible, Proceeds,
Promissory Note, Software, Supporting Obligation, and Tangible Chattel Paper. Such terms (and those
in the following clauses of this Section 1) shall include in the singular number the plural and in
the plural number the singular. Nothing contained in this subsection (b) or otherwise in this
Agreement shall be construed to mean that uncapitalized terms used herein which are defined in the
UCC or the NYUCC shall not have the meanings ascribed to such terms in such statutes.



(c) The following capitalized terms, when used herein and not defined in Article 9 of the
NYUCC, shall have the meanings provided therefor elsewhere in the NYUCC: Certificated Security,
Letter of Credit, Securities Intermediary and Uncertificated Security.




(d) As used herein, the following capitalized terms shall have the following meanings:


 


 









 






“Event of Default” means any of the following: (i) any failure by the Company
to pay, when due, any amount payable by it under any Transaction Document, (ii) any other
material breach by the Company of any provision of any Transaction Document which is
not cured within 30 days, (iii) any representation or warranty made by the Company in
any Transaction Document, or otherwise in writing in connection with any such document, or
in any certificate or statement furnished pursuant to or in connection with any such
document, shall be breached or shall prove to be untrue in any material respect on the date
as of which made; (iv) the occurrence of an Insolvency Event with respect to the Company; or
(v) any other Event of Default (as defined in the terms and conditions of any relevant
Transaction Document).




“Government Authority” shall mean any nation or government, any state or
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.




“Insolvency Event” means the occurrence of any of the following with respect to
the Company or another Person: such Person shall make an assignment for the benefit of, or
composition with, creditors or shall become insolvent or be unable, or generally fail, to
pay its debts when due; or any bankruptcy, insolvency or other proceeding for the relief of
financially distressed debtors shall be commenced with respect to such Person, or a
receiver, liquidator, custodian or trustee shall be appointed for such Person or a
substantial part of its assets, and, if any of the same shall occur involuntarily as to such
Person, it shall not be dismissed, stayed or discharged within 60 days; or if any order for
relief shall be entered against such Person under Title 11 of the United States Code
entitled “Bankruptcy”; or such Person shall take any action to effect, or which indicates
its acquiescence in, any of the foregoing; in each of the foregoing situations, whether
under the laws of the United States or the analogous laws of any foreign jurisdiction.




“Loan Agreement” means each agreement (if, as and when executed by the Company
and the Lenders) pursuant to or in connection with which any financial accommodation is
extended by the Lenders to or on behalf of the Company, including, without limitation, the
Debentures.




“NYUCC” means the Uniform Commercial Code of the State of New York (as
currently in effect and as the same may from time to time hereafter be amended).




“Patents” means (i) all United States or other patents which the Company may
from time to time possess or be otherwise entitled to use, and all licenses of United States
or other patents which the Company may from time to time possess or be otherwise entitled to
use (including without limitation the patents described in Section 8(f) hereof), (ii) all
re-issues, divisions, continuations, renewals, extensions and continuations-in-part thereof,
(iii) the right to sue for past, present and future infringements of the foregoing, and (iv)
all rights corresponding to all of the foregoing throughout the world.




“Payment Default” means the failure by the Company to make any payment required
to be made by it pursuant to any Transaction Document to which it is a party at the time
when same is due (after giving effect to any applicable grace period).




“Person” shall mean and include an individual, a partnership, a corporation
(including a business trust), a joint stock company, a limited liability company, a
not-for-profit corporation or other not-for-profit entity, a trust, an unincorporated
association, a joint venture or other entity or a Government Authority.


 


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“Secured Obligations” means all of the indebtedness, obligations and
liabilities of the Company to the Lenders, individually or collectively, whether direct or
indirect, joint or several, absolute or contingent, due or to become due, now existing or
hereafter arising, pursuant to one or more of the Transaction Documents.




“State” means the State of New York.




“Trademarks” means (i) all United States or other trademarks which the Company
may from time to time possess or be otherwise entitled to use, together with the goodwill of
the business connected with the use of, and symbolized by, such trademarks (together with
the trademarks described in Section 8(f) hereof), (ii) all re-issues, divisions,
continuations, renewals, extensions and continuations-in-part thereof, (iii) the right to
sue for past, present and future infringements of the foregoing, and (iv) all rights
corresponding to all of the foregoing throughout the world (excluding intent-to-use United
States applications prior to their conversion into use-based applications).



(e) Unless otherwise specified, each reference in this Agreement or in any other Transaction
Document to a Transaction Document shall mean such Transaction Document as the same may from time
to time be amended, restated, replaced, supplemented or otherwise modified from time to time with
the consent of the Lenders.



(f) As used in this Agreement, the terms “including,” “including without limitation” and “such
as” (and like terms) are illustrative and not limitative. No difference shall be imputed to the
use in some places herein of “including” and in others of “including without limitation.” Phrases
such as “hereof” and “herein” refer to the entire Agreement and not just the section or other
portion in which said reference appears.



2. Grant of Security Interest. The Company hereby grants to the Lenders, to secure
the payment and performance in full of all of the Secured Obligations, a security interest in and
so pledges and assigns to the Lenders the following properties, assets and rights of the Company,
wherever located, whether now owned or hereafter acquired or arising, and all Proceeds and products
thereof, listed on the attached Schedule 2. Specifically, the Lenders shall have a first lien
security interest securing their convertible debt covering specific assets, but only those assets
which currently secure the senior debt of Silicon Valley Bank to be repaid or acquired by the
Investors, consisting of (but not limited to) 35 flatbed trailers, 65 forklifts, all GPS units in
use or held for use, accounts receivable, office furniture and software, and equity ownership of
subsidiaries; all personal and fixture property of every kind and nature including without
limitation all Goods (including Inventory, Equipment and any Accessions thereto), Instruments
(including Promissory Notes), Documents, Accounts, Chattel Paper (whether Tangible Chattel Paper or
Electronic Chattel Paper), Deposit Accounts, Letter-of-Credit Rights (whether or not the Letter of
Credit is evidenced by a writing), Commercial Tort Claims, Investment Property, Supporting
Obligations, any other contract rights or rights to the payment of money, insurance claims and
proceeds, tort claims, and all General Intangibles (including all Payment Intangibles) (all of the
same listed in this Section 2 being hereinafter called, the “Collateral”). The Lenders
acknowledge that the attachment of its security interest in any Commercial Tort Claim as original
collateral is subject to the Company’s compliance with Section 4(g) and that the Lenders have
confirmed agreement to permit the exclusion from the security interest herein granted of 750 GPS
units which will be available to the Company for purposes of an equipment lease transaction
covering the SmartVaultTM containers to which the subject GPS units are attached.


 


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3. Authorization to File Financing Statements. The Company hereby irrevocably
authorizes the Lenders at any time and from time to time to file in any Uniform Commercial Code
jurisdiction any initial Financing Statements and amendments thereto that (a) indicate the
Collateral (i) as all assets of the Company or words of similar effect, regardless of whether any
particular asset included in the Collateral falls within the scope of Article 9 of the NYUCC, or
(ii) as being of an equal or lesser scope or with greater detail, and (b) contain any other
information required by part 5 of Article 9 of the NYUCC for the sufficiency or filing office
acceptance of any Financing Statement or amendment, including (i) whether the Company is an
organization, the type of organization and any organization identification number issued to the
Company and, (ii) in the case of a Financing Statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates. The Company agrees to furnish any such information to
the Lenders promptly upon request. To the extent the Lenders have previously filed any Financing
Statement with respect to any Collateral, the Company ratifies, confirms and approves the filing of
same by the Lenders.



4. Other Actions. To further insure the attachment, perfection and first priority of,
and the ability of the Lenders to enforce the Lenders’ security interest in the Collateral, the
Company agrees, in each case at the Company’s own expense, to take the following actions with
respect to the following Collateral, if and to the extent only that such collateral currently
secures repayment of Silicon Valley Bank to be repaid or acquired contemporaneously herewith, and
is consistent with the existing rights of Silicon Valley Bank under all agreements with the Company
and any agreements between Silicon Valley Bank and other lenders to or creditors of the Company as
disclosed to the Lenders or described in the Company’s SEC Documents (as defined in the Securities
Purchase Agreement).



(a) Promissory Notes and Tangible Chattel Paper. If the Company shall at any time
hold or acquire any Promissory Notes or Tangible Chattel Paper, the Company shall (when an Event of
Default exists, unless required otherwise by another Loan Document) forthwith endorse, assign and
deliver the same to the Lenders, accompanied by such instruments of transfer or assignment duly
executed in blank as the Lenders may from time to time specify.



(b) Deposit Accounts. For each Deposit Account that the Company at any time opens or
maintains, the Company shall, at the Lenders’ request made at any time while an Event of Default
exists, pursuant to an agreement in form and substance satisfactory to the Lenders, either (1)
cause the depositary bank to agree to comply at any time with instructions from the Lenders to such
depositary bank directing the disposition of funds from time to time credited to such Deposit
Account, without further consent of the Company, or (2) arrange for the Lenders to become the
customer of the depositary bank with respect to the Deposit Account, with the Company being
permitted, only with the consent of the Lenders, to exercise rights to withdraw funds from such
Deposit Account. The Lenders agree with the Company that the Lenders shall not give any such
instructions or withhold any withdrawal rights from the Company unless a Payment Default exists (or
would exist after giving effect to any such withdrawal). The provisions of this paragraph shall not
apply to (i) any Deposit Account for which the Company, the depositary bank and the Lenders have
entered into a cash collateral or “control” agreement specially negotiated among the Company, the
depositary bank and the Lenders for the purpose set forth herein, (ii) Deposit Accounts for which
the Lenders is the depositary and (iii) Deposit Accounts specially and exclusively used for
payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of the
Company’s salaried employees.


 


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(c) Investment Property. If the Company shall at any time hold or acquire any
Certificated Securities, the Company shall forthwith endorse, assign and deliver the same to the
Lenders, accompanied by such instruments of transfer or assignment duly executed in blank as the
Lenders may from time to time specify. If any securities now or hereafter acquired by the Company
are uncertificated and are issued to the Company or its nominee directly by the issuer thereof, the
Company shall immediately notify the Lenders thereof and, at the Lenders’ request and option,
pursuant to an agreement in form and substance satisfactory to the Lenders, cause the issuer to
agree to comply with instructions from the Lenders as to such securities, without further consent
of the Company or such nominee. If any securities, whether certificated or uncertificated, or
other Investment Property now or hereafter acquired by the Company are held by the Company or its
nominee through a Securities Intermediary or Commodity Intermediary, the Company shall immediately
notify the Lenders thereof and, at the Lenders’ request and option, pursuant to an agreement in
form and substance satisfactory to the Lenders, either (i) cause such Securities Intermediary or
(as the case may be) Commodity Intermediary to agree to comply with entitlement orders or other
instructions from the Lenders to such Securities Intermediary as to such securities or other
Investment Property, or (as the case may be) to apply any value distributed on account of any
commodity contract as directed by the Lenders to such Commodity Intermediary, in each case without
further consent of the Company or such nominee, or (ii) in the case of financial assets or other
Investment Property held through a Securities Intermediary, arrange for the Lenders to become the
entitlement holder with respect to such Investment Property, with the Company being permitted, only
with the consent of the Lenders, to exercise rights to withdraw or otherwise deal with such
Investment Property. The Lenders agrees with the Company that the Lenders shall not give any such
entitlement orders or instructions or directions to any such issuer, Securities Intermediary or
Commodity Intermediary, and shall not withhold its consent to the exercise of any withdrawal or
dealing rights by the Company, unless an Event of Default exists (or would exist after giving
effect to any such investment or withdrawal). The provisions of this paragraph shall not apply to
any financial assets credited to a securities account for which the Lenders is the Securities
Intermediary.



(d) Collateral in the Possession of a Bailee. If any goods are at any time in the
possession of a bailee, the Company shall promptly notify the Lenders thereof and, if requested by
the Lenders, shall promptly obtain an acknowledgment from the bailee, in form and substance
satisfactory to the Lenders, that the bailee holds such Collateral for the benefit of the Lenders
and shall act upon the instructions of the Lenders, without the further consent of the Company.



(e) Electronic Chattel Paper and Transferable Records. If the Company at any time
holds or acquires an interest in any Electronic Chattel Paper or any “transferable record,” as that
term is defined in Section 201 of the federal Electronic Signatures in Global and National Commerce
Act, or in §16 of the Uniform Electronic Transactions Act as in effect in any relevant
jurisdiction, the Company shall promptly notify the Lenders thereof and, at the request of the
Lenders, shall take such action as the Lenders may reasonably request to vest in the Lenders
control, under §9-105 of the NYUCC, of such Electronic Chattel Paper or control under Section 201
of the federal Electronic Signatures in Global and National Commerce Act or, as the case may be,
§16 of the Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of such
transferable record.


 


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(f) Letter-of-Credit Rights. If the Company is at any time a beneficiary under a
letter of credit now or hereafter issued in favor of the Company, the Company shall promptly notify
the Lenders thereof and, at the request and option of the Lenders at any time when an
Event of Default exists, the Company shall, pursuant to an agreement in form and substance
satisfactory to the Lenders, either (i) arrange for the issuer and any confirmer of such letter of
credit to consent to an assignment to the Lenders of the proceeds of any drawing under the letter
of credit or (ii) arrange for the Lender to become the transferee beneficiary of the letter of
credit, with the Lenders agreeing, in each case, that the proceeds of any drawing under the letter
to credit shall be held as collateral for the Secured Obligations.



(g) Commercial Tort Claims. If the Company shall at any time hold or acquire a
Commercial Tort Claim, the Company shall immediately notify the Lenders in a writing signed by the
Company of the brief details thereof and grant to the Lenders in such writing a security interest
therein and in the proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance satisfactory to the Lenders.



(h) Other Actions as to any and all Collateral. The Company further agrees to take
any other action reasonably requested by the Lenders to insure the attachment, perfection and first
priority of, and the ability of the Lenders to enforce, the Lenders’ security interest in any and
all of the Collateral including, without limitation, (1) executing, delivering and, where
appropriate, filing Financing Statements and amendments relating thereto under the Uniform
Commercial Code, to the extent, if any, that the Company’s signature thereon is required therefor,
(2) causing the Lenders’ name to be noted as secured party on any certificate of title for a titled
good if such notation is a condition to attachment, perfection or priority of, or ability of the
Lenders to enforce, the Lenders’ security interest in such Collateral, (3) complying with any
provision of any statute, regulation or treaty of the United States or any foreign jurisdiction to
any Collateral if compliance with such provision is a condition to attachment, perfection or
priority of (or comparable concepts under the laws of the United States or any foreign
jurisdiction), or ability of the Lenders to enforce, the Lenders’ security interest in such
Collateral, (4) making such filings in the United States Copyright Office and the United States
Patent and Trademark Office as the Lenders shall request to register, file or otherwise confirm
Lenders’ security interest in intellectual property, or rights therein, held by the Company, (5)
obtaining governmental and other third party consents and approvals, including without limitation
any consent of any licensor, lessor or other person obligated on Collateral, (6) obtaining waivers
from mortgagees and landlords in form and substance satisfactory to the Lenders and (7) taking all
actions required by any earlier versions of the Uniform Commercial Code or by other law, as
applicable in any relevant Uniform Commercial Code jurisdiction, or by other law as applicable in
any foreign jurisdiction.



5. Conflicts; Other Jurisdictions. In the case of any direct conflict between the
provisions of this Agreement and any other Transaction Document, whether governed by the laws of
the United States, any state therein or any other jurisdiction, those provisions shall control
which afford to the Secured Party the greater rights, security and indemnification. Without
limiting the generality of the foregoing, the parties hereto acknowledge that the inclusion of
supplemental rights or remedies in favor of the Secured Party with respect to any Collateral in any
such Transaction Document shall not be deemed a conflict with this Agreement.



6. Representations and Warranties. The Company hereby makes the following
representations and warranties to the Lenders, which representations and warranties shall survive
the execution, delivery and performance of this Agreement and the other Transaction Documents:


 


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(a) The Company is the owner of, or has other rights in, the Collateral, free from any adverse
lien, security interest or other encumbrance, except for the security interest created by this
Agreement and other liens permitted by the Transaction Documents.




(b) None of the Collateral constitutes, or is the proceeds of, Farm Products.



(c) None of the account debtors or other persons obligated on any of the Collateral is a
governmental authority subject to the Federal Assignment of Claims Act or like federal, state or
local statute or rule in respect of such Collateral.




(d) The Company holds no Commercial Tort Claim.



(e) The Company has at all times operated its business in compliance with all applicable
provisions of the federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control, shipment, storage or
disposal of hazardous materials or substances.



(f) On the date hereof, the Company does not hold or have any interest in (directly or through
a nominee or through a Securities Intermediary or Commodity Intermediary) any Investment Property
(whether Certificated Securities, Uncertificated Securities or otherwise).




(g) On the date hereof:




(i) the Company does not hold or otherwise have any interest in any Electronic Chattel
Paper or any such transferable record.




(ii) the Company is not a beneficiary under a letter of credit issued in favor of the
Company.




(iii) the Company possesses no rights in any material or significant copyrights,
regardless of whether same have been registered with the United States Copyright Office or
not.



7. Grant of License to Use Patent and Trademark Collateral. For the purpose of
enabling the Lenders to exercise rights and remedies hereunder at such time (after the occurrence
of an Event of Default) as the Lenders, without regard to this Section 7, shall be lawfully
entitled to exercise such rights and remedies, the Company hereby grants to the Lenders (effective
upon the occurrence of an Event of Default) an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Company) to use, license or sublicense any
Patent or Trademark now owned or hereafter acquired by the Company (or as to which Company is now
or hereafter a licensee) and wherever the same may be located, and including in such license
reasonable access to all media in which any of the licensed items may be recorded or stored and to
all computer and automatic machinery software and programs used for the compilation or printout
thereof.




8. Special Provisions Concerning Trademarks and Patents.



(a) The Company (either itself or through licensees) will, for each Patent, not do any act, or
omit to do any act, whereby any Patent which is material to the conduct of the Company’s business
may become abandoned or dedicated.


 


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(b) The Company shall notify the Lenders immediately if it knows or has reason to know that
any application or registration relating to any Patent or Trademark which is material to the
conduct of the Company’s business may become abandoned or dedicated, or of any adverse
determination or development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and Trademark Office or
any court) regarding the Company’s ownership of any Patent or Trademark which is material to the
Company’s business, its right to register the same, or to keep and maintain the same.



(c) In no event shall the Company, either itself or through any agent, employee, licensee or
designee, file an application for the registration of any Patent or Trademark with the United
States Patent and Trademark Office or any similar office or agency in any other country or any
political subdivision thereof, unless it promptly informs the Lenders, and, upon request of the
Lenders, executes and delivers any and all agreements, instruments, documents, and papers as the
Lenders may request to evidence the Lenders’ security interest in such Patent or Trademark and the
goodwill and general intangibles of the Company relating thereto or represented thereby, and the
Company hereby constitutes the Lenders its attorney-in-fact after an Event of Default has occurred
to execute and file all such writings for the foregoing purposes, all acts of such attorney being
hereby ratified and confirmed; such power, being coupled with an interest, is irrevocable until the
Secured Obligations are paid in full.



(d) The Company will take all necessary steps that are consistent with good business practices
in any proceeding before the United States Patent and Trademark Office or any similar office or
agency in any other country or any political subdivision thereof, to maintain and pursue each
application relating to the Patents (and to obtain the relevant registration) and to maintain each
registration of each of the Patents which is material to the conduct of the Company’s business,
including, without limitation, filing of applications for renewal, affidavits of use, affidavits of
incontestability and opposition, interference and cancellation proceedings.



(e) In the event that any Collateral consisting of a Patent is infringed, misappropriated or
diluted by a third party, the Company shall notify the Lenders within (30) days after it learns
thereof and shall, if consistent with good business practice, promptly sue for infringement,
misappropriation or dilution and to recover any and all damages for such infringement,
misappropriation or dilution, and take such other actions as are appropriate under the
circumstances to protect such Collateral consisting of a Patent.



(f) If, before the Secured Obligations have been satisfied in full, the Company obtains rights
to any new trademark material to its business or new patent, or becomes entitled to the benefit of
any trademark material to its business or patent application or patent for any reissue, division,
continuation, renewal, extension, or continuation-in-part of any Patent, or any improvement on any
Patent, or any Trademark, the provisions of Section 2 hereof shall automatically apply thereto and
the Company shall give the Lenders prompt notice thereof in writing.



(g) The Company shall have the duty, through counsel reasonably acceptable to the Lenders, to
prosecute diligently any patent or trademark application pending as of the date of this Agreement
or thereafter until the Secured Obligations have been paid in full, to make application on
unpatented but patentable inventions and to preserve and maintain all rights in patent and
trademark applications; provided, however, that the Company shall have no
obligation
to make application on any unpatented but patentable inventions if making such application
would be unnecessary or imprudent in the good faith business judgment of the Company. Any expenses
incurred in connection with such an application shall be borne by the Company.


 


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(h) The Lenders shall have the right but shall in no way be obligated to bring suit in its own
name to enforce the Patents and Trademarks and any license thereunder, in which event the Company
shall, at the request of the Lenders, do any and all lawful acts and execute any and all proper
documents required by the Lenders in aid of such enforcement action and indemnify the Lenders for
all costs and expenses incurred by the Lenders in the exercise of its rights under this Section
(h).



(i) The Company represents and warrants that (x) it has no Patents or Trademarks which are
material to the business or operations of the Company or otherwise important to the Company except
such as are listed on Schedule 12 to the Perfection Certificate, and (y) it is not the holder,
owner or licensee of any copyright (i) material to its business or (ii) which has been registered
with the United States Copyright Office.



(j) Until the occurrence of an Event of Default, the Lenders hereby grants to the Company the
exclusive, nontransferable right and license to use the Trademarks and to make, have made, use and
sell the inventions disclosed and claimed in the Patents for the Company’s benefit and account and
for none other. The Company agrees not to sell or assign its interest in, or grant any sublicense
under, the license granted to the Company in this clause (j) without the prior written consent of
the Lenders, which consent will not be unreasonably withheld or delayed.



9. Covenants Concerning Company’s Legal Status. The Company covenants with the
Lenders as follows: (a) without providing at least 60 days prior written notice to the Lenders,
the Company will not change its name, its place of business or, if more than one, chief executive
office, or its mailing address or organizational identification number if it has one, (b) if the
Company does not have an organizational identification number and later obtains one, the Company
shall forthwith notify the Lenders of such organizational identification number, and (c) the
Company will not change its type of organization, jurisdiction of organization or other legal
structure.



10. Covenants Concerning Collateral, Etc. The Company further covenants with the
Lenders as follows:



(a) The Collateral, to the extent not delivered to the Lenders pursuant to Section 4, will be
kept at those locations listed on Schedule 10 hereto, and the Company will not remove the
Collateral from such locations (except for the sale of Inventory in the ordinary course of the
Company’s business) without providing at least 60 days (or such lesser number of days agreed to at
the relevant time by the Lenders) prior written notice to the Lenders.



(b) Except for the security interest herein granted and liens permitted by the Transaction
Documents: (1) the Company is and shall be the owner of or have other rights in the Collateral free
from any lien, security interest or other encumbrance, and (2) the Company shall defend the same
against all claims and demands of all persons at any time claiming the same or any interests
therein adverse to the Lenders.


 


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(c) The Company shall not pledge, mortgage or create, or suffer to exist a security interest
in the Collateral in favor of any person other than the Lenders except for liens permitted by the
Transaction Documents.



(d) The Company will keep the Collateral in good order and repair (reasonable wear and tear
excepted) and will not use the same in violation of law or any policy of insurance thereon.



(e) The Company will permit the Lenders, or its designee, to inspect the Collateral (wherever
located) at any reasonable time.



(f) The Company will pay promptly when due all taxes, assessments, governmental charges and
levies upon the Collateral or incurred in connection with the use or operation of such Collateral
or incurred in connection with this Agreement (except for taxes, assessments and government charges
which are being contested in good faith and by appropriate proceedings diligently conducted and the
Company has set aside on its books adequate reserves therefor in accordance with generally accepted
accounting principles).



(g) The Company will continue to operate its business in compliance with all applicable
provisions of the federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control, shipment, storage or
disposal of hazardous materials or substances.



(h) The Company will not sell or otherwise dispose, or offer to sell or otherwise dispose, of
the Collateral or any interest therein except for (1) sales and leases of Inventory, and licenses
of general intangibles, in the ordinary course of the Company’s business and (2) sales or other
dispositions of obsolescent items of equipment in the ordinary course of business consistent with
the Company’s past practices except to the extent same is prohibited by the Note.



(i) The Company will, whenever the Company acquires or otherwise possesses any significant or
material copyrights or any rights or interests therein, provide to the Lenders a list thereof,
identified (to the extent applicable) by title, author and Copyright Office registration number and
date.



11. Insurance. The Company will maintain with financially sound and reputable
insurers insurance with respect to its properties and business against loss and damage by fire and
other risks, casualties and contingencies in such manner and to the extent that like properties are
customarily so insured by other corporations engaged in the same or similar business similarly
situated. In the event of failure by the Company to provide and maintain insurance as herein
provided, the Lenders may, at its option, provide such insurance and charge the amount thereof to
the Company. Lenders, to the extent applicable to the type of policy, shall be named as a loss
payee (“as its interests may appear” or like language); to the extent applicable and Lenders is not
so named, such will be done no later than ten days following the Company’s execution hereof.
Certificates of insurance naming Lenders as loss payee shall be promptly delivered to Lenders; such
certificate shall also state, as to the policies referenced therein, that none of such policies
shall be cancelled by the insurer without at least 30 days prior written notice to Lenders.


 


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12. Collateral Protection Expenses; Preservation of Collateral.



(a) Expenses Incurred by Lenders. In its discretion, the Lenders may discharge taxes
and other encumbrances at any time levied or placed on any of the Collateral, make repairs thereto
and pay any necessary filing fees or, if the Company fails to do so, insurance premiums. The
Company agrees to reimburse the Lenders on demand for any and all expenditures so made. The
Lenders shall have no obligation to the Company to make any such expenditures, nor shall the making
thereof relieve the Company of any default.



(b) Lenders’ Obligations and Duties. Anything herein to the contrary notwithstanding,
the Company shall remain liable for its obligations under each contract or agreement included in
the Collateral. The Lenders shall not have any obligation or liability under any such contract or
agreement by reason of or arising out of this Agreement or the receipt by the Lenders of any
payment relating to any of the Collateral, nor shall the Lenders be obligated in any manner to
perform any of the obligations of the Company under or pursuant to any such contract or agreement,
to make inquiry as to the nature or sufficiency of any payment received by the Lenders in respect
of the Collateral or as to the sufficiency of any performance by any party under any such contract
or agreement, to present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts which may have been assigned to the Lenders or to which the
Lenders may be entitled at any time or times. The Lenders’ sole duty with respect to the custody,
safe keeping and physical preservation of the Collateral in its possession, under §9-207 of the
NYUCC of the State or otherwise, shall be to deal with such Collateral in the same manner as the
Lenders deals with similar property for its own account.



13. Notification to Account Debtors and Other Persons Obligated on Collateral.
Whenever an Event of Default exists, the Company shall, at the request of the Lenders, notify
account debtors and other persons obligated on any of the Collateral of the security interest of
the Lenders in any Account, Chattel Paper, General Intangible, Instrument or other Collateral and
that payment thereof is to be made directly to the Lenders or to any financial institution
designated by the Lenders as the Lenders’ agent therefor, and the Lenders may itself, whenever an
Event of Default exists, without notice to or demand upon the Company, so notify account debtors
and other persons obligated on Collateral. After the making of such a request or the giving of any
such notification, the Company shall hold as trustee for the Lenders any Proceeds of collection of
Accounts, Chattel Paper, General Intangibles, Instruments and other Collateral received by the
Company without commingling the same with other funds of the Company and shall turn the same over
to the Lenders in the identical form received, together with any necessary endorsements or
assignments. The Lenders, at its option, shall apply the Proceeds of collection of Accounts,
Chattel Paper, General Intangibles, Instruments and other Collateral received by the Lenders to the
Secured Obligations, such Proceeds to be immediately entered after final payment in cash or other
immediately available funds of the items giving rise to them, or hold such Proceeds as collateral
for the Secured Obligations.




14. Power of Attorney.



(a) Appointment and Powers of Lenders. The Company hereby irrevocably constitutes and
appoints the Lenders and any officer or agent thereof, with full power of substitution, as its true
and lawful attorneys-in-fact with full irrevocable power and authority in the place and stead of
the Company or in the Lenders’ own name, for the purpose of carrying out the terms of this
Agreement, to take any and all appropriate action and to execute any and all
documents and instruments that may be necessary or desirable to accomplish the purposes of
this Agreement and, without limiting the generality of the foregoing, hereby gives said attorneys
the power and right, on behalf of the Company, without notice to or assent by the Company, to do
the following:



 


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(i) whenever an Event of Default exists, generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral in such manner as is
consistent with the NYUCC and as fully and completely as though the Lenders were the
absolute owner thereof for all purposes, and to do at the Company’s expense, at any time, or
from time to time, all acts and things which the Lenders deems necessary to protect,
preserve or realize upon the Collateral and the Lenders’ security interest therein, in order
to effect the intent of this Agreement, all as fully and effectively as the Company might
do, including, without limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal or local agencies or authorities with
respect to trademarks, copyrights and patentable inventions and processes, and (ii) the
execution, delivery and recording, in connection with any sale or other disposition of any
Collateral, of the endorsements, assignments or other instruments of conveyance or transfer
with respect to such Collateral; and




(ii) to the extent that the Company’s authorization given in Section 3 is not
sufficient, to file such Financing Statements with respect hereto, with or without the
Company’s signature, or a photocopy of this Agreement in substitution for a Financing
Statement, as the Lenders may deem appropriate and to execute in the Company’s name such
Financing Statements and amendments thereto and continuation statements which may require
the Company’s signature.



(b) Ratification by Company. To the extent permitted by law, the Company hereby
ratifies all that said attorneys shall lawfully do or cause to be done by virtue of this Agreement.
This power of attorney is a power coupled with an interest and shall be irrevocable.



(c) No Duty on Lenders. The powers conferred on the Lenders hereunder are solely to
protect its interests in the Collateral and shall not impose any duty upon it to exercise any such
powers. The Lenders shall be accountable only for the amounts that it actually receives as a
result of the exercise of such powers and neither it nor any of its officers, directors, employees
or agents shall be responsible to the Company for any act or failure to act, except for the
Lenders’ own gross negligence or willful misconduct.



15. Remedies. Whenever an Event of Default exists, the Lenders may, without notice to
or demand upon the Company, declare this Agreement to be in default, and the Lenders shall
thereafter have in any jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the NYUCC or of any other
jurisdiction in which Collateral is located, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Lenders may, so far as the Company can give
authority therefor, enter upon any premises on which the Collateral may be situated and remove the
same therefrom. The Lenders may in its discretion require the Company to assemble all or any part
of the Collateral at such location or locations within the jurisdiction(s) of the Company’s
principal office(s) or at such other locations as the Lenders may reasonably designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold
on a recognized market, the Lenders shall give to the Company at least five Business Days prior
written notice of the time and place of any public sale of Collateral or
of the time after which any private sale or any other intended disposition is to be made. The
Company hereby acknowledges that five Business Days prior written notice of such sale or sales
shall be reasonable notice. In addition, the Company waives any and all rights that it may have to
a judicial hearing in advance of the enforcement of any of the Lenders’ rights hereunder,
including, without limitation, the Lenders’s right following an Event of Default to take immediate
possession of the Collateral and to exercise its rights with respect thereto.


 


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16. Standards for Exercising Remedies. To the extent that applicable law imposes
duties on the Lenders to exercise remedies in a commercially reasonable manner, the Company
acknowledges and agrees that it is not commercially unreasonable for the Lenders (a) to incur or
fail to incur expenses reasonably deemed necessary by the Lenders to prepare Collateral for
disposition or otherwise to complete raw material or work in process into finished goods or other
finished products for disposition, (b) to fail to obtain third party consents for access to
Collateral to be disposed of, or to obtain or (if not required by other law) to fail to obtain
governmental or third party consents for the collection or disposition of Collateral to be
collected or disposed of, (c) to fail to exercise collection remedies against account debtors or
other persons obligated on Collateral or to fail to remove liens or encumbrances on or any adverse
claims against Collateral, (d) to exercise collection remedies against account debtors and other
persons obligated on Collateral directly or through the use of collection agencies and other
collection specialists, (e) to advertise dispositions of Collateral through publications or media
of general circulation, whether or not the Collateral is of a specialized nature, (f) to contact
other persons, whether or not in the same business as the Company, for expressions of interest in
acquiring all or any portion of the Collateral, (g) to hire or fail to hire one or more
professional auctioneers to assist in the disposition of Collateral, whether or not the collateral
is of a specialized nature, (h) to dispose of Collateral by utilizing Internet sites that provide
for the auction of assets of the types included in the Collateral or that have the reasonable
capability of doing so, or that match buyers and sellers of assets, (i) to dispose of assets in
wholesale rather than retail markets, (j) to disclaim disposition warranties, (k) to purchase
insurance or credit enhancements to insure the Lenders against risks of loss, collection or
disposition of Collateral or to provide to the Lenders a guaranteed return from the collection or
disposition of Collateral, or (l) to the extent deemed appropriate by the Lenders, to obtain the
services of other brokers, investment bankers, consultants and other professionals to assist the
Lenders in the collection or disposition of any of the Collateral. The Company acknowledges that
the purpose of this Section 16 is to provide non-exhaustive indications of what actions or
omissions by the Lenders would not be commercially unreasonable in the Lenders’ exercise of
remedies against the Collateral and that other actions or omissions by the Lenders shall not be
deemed commercially unreasonable solely on account of not being indicated in this Section 16.
Without limitation upon the foregoing, nothing contained in this Section 16 shall be construed to
grant any rights to the Company or to impose any duties on the Lenders that would not have been
granted or imposed by this Agreement or by applicable law in the absence of this Section 16.



17. No Waiver by Lenders, etc. The Lenders shall not be deemed to have waived any of
its rights upon or under the Secured Obligations or the Collateral unless such waiver shall be in
writing and signed by the Lenders and any other person or entity required by the Note to sign such
waiver. No delay or omission on the part of the Lenders in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not be construed as a
bar to or waiver of any right on any future occasion. All rights and remedies of the Lenders with
respect to the Secured Obligations or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the Lenders deems
expedient.


 


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18. Suretyship Waivers by Company. The Company waives demand, notice, protest, notice
of acceptance of this Agreement, notice of loans made, credit extended, Collateral received or
delivered or other action taken in reliance hereon and all other demands and notices of any
description. With respect to both the Secured Obligations and the Collateral, the Company assents
to any extension or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest in any Collateral,
to the addition or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or adjusting of any thereof,
all in such manner and at such time or times as the Lenders may deem advisable. The Lenders shall
have no duty as to the collection or protection of the Collateral or any income thereon, nor as to
the preservation of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in Section 12(b). The Company
further waives any and all other suretyship defenses.



19. Marshalling. The Lenders shall not be required to marshal any present or future
collateral security (including but not limited to this Agreement and the Collateral) for, or other
assurances of payment of, the Secured Obligations or any of them or to resort to such collateral
security or other assurances of payment in any particular order, and all of its rights hereunder
and in respect of such collateral security and other assurances of payment shall be cumulative and
in addition to all other rights, however existing or arising. To the extent that it lawfully may,
the Company hereby agrees that it will not invoke any law relating to the marshalling of collateral
which might cause delay in or impede the enforcement of the Lenders’ rights under this Agreement or
under any other instrument creating or evidencing any of the Secured Obligations or under which any
of the Secured Obligations is outstanding or by which any of the Secured Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may, the Company hereby
irrevocably waives the benefits of all such laws.



20. Proceeds of Dispositions; Expenses. The Company shall pay to the Lenders on
demand any and all expenses, including reasonable attorneys’ fees and disbursements, incurred or
paid by the Lenders in protecting, preserving or enforcing the Lenders’ rights under or in respect
of any of the Secured Obligations or any of the Collateral, or otherwise in connection with this
Agreement. After deducting all of said expenses, the residue of any proceeds of collection or sale
of the Secured Obligations or Collateral shall, to the extent actually received in cash, be applied
to the payment of the Secured Obligations in such order or preference as the Lenders may determine
or held by it as otherwise provided in the Note, proper allowance and provision being made for any
Secured Obligations not then due. Upon the final payment and satisfaction in full of all of the
Secured Obligations and after making any payments required by Sections 9-608(a)(1)(C) or
9-615(a)(3) of the NYUCC or other applicable law, any excess shall be returned to the Company, and
the Company shall remain liable for any deficiency in the payment of the Secured Obligations.



21. Overdue Amounts. Until paid, all amounts due and payable by the Company hereunder
shall be a debt secured by the Collateral and shall bear, whether before or after judgment,
interest (to the fullest extent permitted by applicable law) at the rate of eighteen percent (18%)
per annum.


 


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22. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE THAT WOULD RESULT IN THE APPLICATION OF THE LAWS
OF ANOTHER JURISDICTION, except to the extent that matters of title or procedural issues of
foreclosure are required to be governed by the laws of the state in which the Collateral, or part
thereof, is located.



23. Jurisdiction. The Company hereby agrees that ANY LEGAL ACTION OR PROCEEDING
AGAINST THE COMPANY WITH RESPECT TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT MAY BE BROUGHT
IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT
OF NEW YORK AS THE LENDERS MAY ELECT, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE COMPANY
ACCEPTS AND CONSENTS FOR ITSELF AND IN RESPECT TO ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE, unless
waived by the Lenders in writing, with respect to any action or proceeding brought by the Company
against the Lenders, and further consents (to the extent permitted by applicable law) to the
service of process in any such action or proceeding being made upon the Company by mail at the
address stated alongside its name on the signature page hereof or at such other address as the
Lenders are notified of in accordance with Section 24(h) hereof. The Company hereby waives any
objection that it may now or hereafter have to the venue of any such suit or any such court or that
such suit is brought in an inconvenient court. Nothing herein shall limit the right of the Lenders
to bring proceedings against the Company in the courts of any other jurisdiction. The Company
covenants that it is and will remain subject to service of process in the State of New York so long
as any of the Secured Obligations is outstanding. Nothing herein shall affect the right of the
Lenders to serve process in any other manner permitted by law.




24. Miscellaneous.



(a) No Waiver. No delay on the part of the Lenders in exercising any of its rights,
remedies, powers and privileges hereunder or partial or single exercise thereof, shall constitute a
waiver thereof. None of the terms and conditions of this Agreement may be changed, waived,
modified or varied in any manner whatsoever unless in writing duly signed by the Company and the
Lenders. No notice to or demand on the Company in any case shall entitle the Company to any other
or further notice or demand in similar or other circumstances or constitute a waiver of any of the
rights of the Lenders to any other or further action in any circumstances without notice or demand.



(b) Binding Effect. The obligations of the Company hereunder shall remain in full
force and effect without regard to, and shall not be impaired by, (i) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or the like of the Company;
(ii) any exercise or non-exercise, or any waiver of, any right, remedy, power or privilege under or
in respect of this Agreement or any of the other Transaction Documents, any other agreement
executed in connection with any of the foregoing whereby the Company has granted any Lien to the
Lenders or any other agreement executed in connection with any of the foregoing, the Secured
Obligations or any security for any of the Secured Obligations; or (iii) any amendment to or
modification of any of the foregoing; whether or not the Company shall have notice or knowledge of
any of the foregoing. The rights and remedies of the Lenders herein provided are cumulative and
not exclusive of any rights or remedies which the Lenders would otherwise have.


 


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(c) No Violation. All rights, remedies and powers provided by this Agreement may be
exercised only to the extent that the exercise thereof does not violate any applicable provision of
law, and the provisions hereof are intended to be subject to all applicable mandatory provisions of
law that may be controlling and to be limited to the extent necessary so that they will not render
this Agreement invalid, unenforceable in whole or in part or not entitled to be recorded,
registered or filed under the provisions of any applicable law.



(d) No Obligation of Lenders. It is expressly agreed, anything herein, in the
Transaction Documents or in any other agreement or instrument executed by the Company in connection
with any of the Transaction Documents to the contrary notwithstanding, that the Company shall
remain liable to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Lenders shall not have any obligations or liabilities with respect to any
Collateral by reason of or arising out of this Agreement, nor shall the Lenders be required or
obligated in any manner to perform or fulfill any of the obligations of the Company under or
pursuant to any or in respect of any Collateral.



(e) Successors. This Agreement shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of the Lenders and their respective successors and
assigns, except that the Company may not transfer or assign any of its obligations, rights or
interest hereunder without the prior written consent of the Lenders and any such purported
assignment by the Company shall be void. All agreements, representations and warranties made
herein shall survive the execution, delivery and performance of this Agreement.



(f) Headings; Amendments. The descriptive headings of the several sections of this
Agreement are inserted for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement. No provision of this Agreement shall be waived,
amended or supplemented except by a written instrument executed by the Company and the Lenders.



(g) Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



(h) Notices. Any notice or demand upon the Company pursuant to this Agreement or any
other Transaction Document shall be deemed to have been sufficiently given or served for all
purposes thereof when mailed, postage prepaid, by registered or certified mail, return receipt
requested, or when telegraphed, telecopied, telexed or sent by messenger or by Federal Express (or
similar overnight express or courier service), to the Company at its address set forth below or at
such other address as the Company may designate in a writing delivered to the Lenders, provided
that in the case where the Lenders are required to give only five days’ notice of a proposed sale
of the Collateral such notice shall not be deemed given until delivered to the chief executive
office of the Company (or the latest such chief executive office of which the Lenders have been
notified in accordance with the provisions hereof). All notices to the Lenders under this
Agreement shall be deemed to have been given when delivered by mail, telegraph, telecopy, telex,
messenger or Federal Express (or similar overnight express or courier service) to the Lenders at
their respective addresses set forth below or at such other address as the Lenders may designate in
a writing delivered to the Company.


 


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(i) Counterparts. This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which when so executed and delivered
shall be an original, but all of which counterparts taken together shall be deemed to constitute
one and the same instrument. Telecopied signatures hereto shall be of the same force and effect as
an original of a manually signed copy.



25. Waiver of Jury Trial. EACH OF THE COMPANY AND THE LENDERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS EITHER MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN), OR ACTIONS OF THE LENDERS, THE COMPANY OR ANY OTHER PERSON. Except as prohibited by
law, the Company waives any other right which it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages.



IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed as of the date
first above written.



	 	 	 	 	 
	 	SMART MOVE, INC. 

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 





Address:


 


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	Accepted:	 	 
	 
	 	 	 	 
	PROFESSIONAL OFFSHORE OPPORTUNITY FUND, LTD.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 

	 	Address:	 	 
	 
	 	 	 	 
	PROFESSIONAL TRADERS FUND, LTD.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 

	 	Address:	 	 
	 
	 	 	 	 
	ENTITIES DESIGNATED BY SMART MOVE, INC.	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 
	 

	 	Address:	 	 







 


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