**Exhibit 4.49**

 

**SECURITY AGREEMENT**

 

SECURITY AGREEMENT (as amended, restated, supplemented orotherwise modified from time to time in accordance herewith and including all attachments, exhibits and schedules hereto, the “*Agreement*”), dated as of November 11, 2002, made by SPEEDCOM WIRELESS CORPORATION, a Delaware corporation(the *“Grantor”*), in favor of DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMG Legacy International Ltd. (collectively, the *“Secured Parties”*). 

 

WHEREAS, the Grantor has issued separate secured promissorynotes to the Secured Parties (the*“Notes”*) in the aggregate principal amount of $290,000 pursuant to a Letter Loan Agreement by and among the Grantor and the Secured Parties dated the date hereof (the*“Letter LoanAgreement”*); and 

 

WHEREAS, it is acondition precedent to the Grantor’s making the loan evidenced by the Letter Loan Agreement to the Secured Parties that the Grantor execute and deliver to the Secured Parties a security agreement providing for the grant to the Secured Partiesof a continuing security interest in all personal property and assets of the Grantor, all in substantially the form hereof to secure all Obligations (hereinafter defined); 

 

NOW, THEREFORE, the parties agree as follows: 

 

*******ARTICLE I.**********Definitions*******

 

Section 1.1. *Definition of Terms Used Herein*.All capitalized terms used herein and not defined herein have the respective meanings provided therefor in the Letter Loan Agreement. All terms defined in the Uniform Commercial Code (hereinafter defined) as in effect from time to time and usedherein and not otherwise defined herein (whether or not such terms are capitalized) have the same definitions herein as specified therein. 

 

Section 1.2. *Definition of Certain Terms Used Herein*. As used herein, the following terms have the following meanings:

 

“*Collateral*” means allaccounts receivable of the Grantor and all personal and fixture property of every kind and nature, including, without limitation, all furniture, fixtures, equipment, raw materials, inventory, or other goods, accounts, contract rights, rights to thepayment of money, insurance refund claims and all other insurance claims and proceeds, tort claims, chattel paper, documents, instruments, securities and other investment property, deposit accounts, rights to proceeds of letters of credit and allgeneral intangibles including, without limitation, all tax refund claims, license fees, patents, patent licenses, patent applications, trademarks, trademark licenses, trademark applications, trade names, copyrights, copyright licenses, copyrightapplications, rights to sue and recover for past infringement of patents, trademarks and copyrights, computer programs, computer software, engineering drawings, service marks, customer lists, goodwill, and all licenses, permits, agreements of anykind or nature pursuant to which the Grantor possesses, uses or has authority to possess or use property (whether tangible or intangible) of others or others possess, use or have authority to possess or 

 

 

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use property (whether tangibleor intangible) of the Grantor, and all recorded data of any kind or nature, regardless of the medium of recording including, without limitation, all books and records, software, writings, plans, specifications and schematics; and all proceeds andproducts of each of the foregoing. 

 

“*Default*” means any event or circumstance which, with the giving of notice, the lapse of time, or both, would (if not cured, waived, or otherwise remedied during such time) constitute an Event of Default.

 

“*Event of Default*” hasthe meaning specified in the Letter Loan Agreement. 

 

*“Indemnitees*” has the meaning specified in Section 7.5(b). 

 

“*Lien*” means: (i) any interest in property securing an obligation owed to, or a claim by, a Person other than theowner of the property, whether such interest is based on the common law, statute, or contract, and including a security interest, charge, claim, or lien arising from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment, depositarrangement, agreement, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes; (ii) to the extent not included under clause (i), any reservation, exception, encroachment, easement,right-of-way, covenant, condition, restriction, lease or other title exception or encumbrance affecting property; and (iii) any contingent or other agreement to provide any of the foregoing. 

 

“*Notes*” has the meaning assigned tosuch term in the first recital of this Agreement. 

 

“*Obligations*” means all indebtedness, liabilities, obligations, covenants and duties of the Grantor to the Secured Parties of every kind, nature and description, direct or indirect, absolute or contingent, dueor not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, now existing of hereafter arising under or in connection with the Notes, the Letter Loan Agreement, this Agreement or the other LoanDocuments. 

 

*“RegisteredOrganization*” means an entity formed by filing a registration document with a United States Governmental Authority, such as a corporation, limited partnership or limited liability company. 

 

*“Revised Article 9*” has the meaningspecified in Section 7.14. 

 

“*SecurityInterest*” has the meaning specified in Section 2.1 of this Agreement. 

 

*“Uniform Commercial Code*” means the Uniform Commercial Code from time to time in effect in the State of New York. 

 

*******ARTICLE II.**********Security Interest*******

 

Section 2.1. *Security Interest*. As security forthe payment and performance, in full of the Obligations, and any extensions, renewals, modifications or refinancings of the Obligations, the Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges, hypothecates and transfersto the Secured Parties, and hereby grants to the Secured Parties, their successors 

 

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and assigns, a securityinterest in, all of such Grantor’s right, title and interest in, to and under the Collateral (the “*Security Interest*”). 

 

Section 2.2. *No Assumption of Liability*. The Security Interest is granted as security only and shall not subject the SecuredParties to, or in any way alter or modify, any obligation or liability of the Grantor with respect to or arising out of the Collateral. 

 

*******ARTICLE III.**********Representations and Warranties*******

 

The Grantor represents and warrants to the Secured Partiesthat: 

 

Section 3.1. *Title andAuthority*. The Grantor has good and valid rights in and title to the Collateral with respect to which it has purported to grant a security interest hereunder and has full power and authority to grant to the Secured Parties the SecurityInterest and to execute, deliver and perform its obligations in accordance with the terms of this Agreement, without the consent or approval of any other Person other than any consent or approval which has been obtained. 

 

Section 3.2. *Filings; Actions to AchievePerfection*. Fully executed Uniform Commercial Code financing statements (including fixture filings, as applicable) or other appropriate filings, recordings or registrations containing a description of the Collateral have been delivered tothe Secured Parties for filing in each United States governmental, municipal or other office specified in Schedule A, which are all the filings, recordings and registrations that are necessary to publish notice of and protect the validity ofand to establish a legal, valid and perfected security interest in favor of the Secured Parties in respect of all Collateral in which the Security Interest may be perfected by filing, recording or registration in the United States (or any politicalsubdivision thereof) and its territories and possessions, and no further or subsequent filing, refiling, recording, rerecording, registration or reregistration is necessary in any such jurisdiction, except as provided under applicable law withrespect to the filing of continuation statements or with respect to the filing of amendments or new filings to reflect the change of the Grantor’s name, location, identity or corporate structure. The Grantor’s name is listed in thepreamble of this Agreement identically to how it appears on its certificate of incorporation or other organizational documents. 

 

Section 3.3. *Validity and Priority of Security Interest*. The Security Interest constitutes (a) a legal and valid securityinterest in all the Collateral securing the payment and performance of the Obligations, (b) subject only to the filings described in Section 3.2 above and other previously perfected security interests in the Collateral listed on Schedule 3.3to this Agreement (“Existing Liens”), a perfected security interest in all Collateral in which a security interest may be perfected by filing, recording or registration in the United States pursuant to the Uniform Commercial Code orother applicable law in the United States (or any political subdivision thereof) and its territories and possessions or any other country, state or nation (or any political subdivision thereof). The Security Interest is and shall be subordinate toany other Existing Lien on any of the Collateral. 

 

Section 3.4. *Absence of Other Liens*. The Grantor’s Collateral is owned by the Grantor free and clear of any Lien other than Existing Liens. Without limiting the foregoing and except as set forth on Schedule3.4 to this Agreement, the Grantor has not filed or consented to any 

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filing described inSchedule A in favor of any Person other than the Secured Parties, nor permitted the granting or assignment of a security interest or permitted perfection of any security interest in the Collateral in favor of any Person other than the SecuredParties. The Grantor’s having possession of all instruments and cash constituting Collateral from time to time and the filing of financing statements in the offices referred to in Schedule A hereto results in the perfection of suchsecurity interest. Such security interest is, or in the case of Collateral in which the Grantor obtain rights after the date hereof, will be, a perfected, first priority security interest. Such notices, filings and all other action necessary ordesirable to perfect and protect such security interest have been duly taken. 

 

Section 3.5. *Valid and Binding Obligation*. This Agreement constitutes the legal, valid and binding obligation of the Grantor, enforceable against the Grantor in accordance with its terms,except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specificperformance, injunctive relief, or other equitable remedies, and (iii) to the extent the indemnification provisions contained in this Agreement may be limited by applicable federal or state securities laws. 

 

*******ARTICLE IV.**********Covenants*******

 

Section 4.1. *Change of Name; Location of Collateral; Place of Business, State of Formation or Organization*. 

 

(a) The Grantor shall notify the Secured Parties in writing promptly of any change (i) in its corporate name or in anytrade name used to identify it in the conduct of its business or in the ownership of its properties, (ii) in the location of its chief executive office, its principal place of business, any office in which it maintains books or records relating toCollateral owned by it (including the establishment of any such new office or facility), (iii) in its identity or corporate structure such that a filed filing made under the Uniform Commercial Code becomes misleading or (iv) in its Federal TaxpayerIdentification Number. In extension of the foregoing, the Grantor shall not effect or permit any change referred to in the preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise that are required in orderfor the Secured Parties to continue at all times following such change to have a valid, legal and perfected first priority security interest in all the Collateral. 

 

(b) Without limiting Section 4.1(a), without the prior written consent of the Secured Partiesin each instance, the Grantor shall not change its (i) principal residence, if it is an individual, (ii) place of business, if it has only one place of business and is not a Registered Organization, (iii) principal place of business, if it has morethan one place of business and is not a Registered Organization, or (iv) state of incorporation, formation or organization, if it is a Registered Organization. 

 

Section 4.2. *Records*. The Grantor shall maintain, at its own cost and expense, such complete and accurate records withrespect to the Collateral owned by it as is consistent with its current practices and in accordance with such prudent and standard practices used in industries that are the same as or similar to those in which the Grantor is engaged, but in anyevent to include complete accounting records indicating all payments and proceeds received with respect 

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to any part of the Collateral,and, at such time or times as the Secured Parties may reasonably request, promptly to prepare and deliver to the Secured Parties a duly certified schedule or schedules in form and detail satisfactory to the Secured Parties showing the identity,amount and location of any and all Collateral. 

 

Section 4.3. *Periodic Certification; Notice of Changes*. In the event there should at any time be any change in the information represented and warranted herein or in the documents and instruments executed and deliveredin connection herewith, the Grantor shall immediately notify the Secured Parties in writing of such change (this notice requirement shall be in extension of and shall not limit or relieve the Grantor of any other covenants hereunder). 

 

Section 4.4. *Protection of Security*. The Grantorshall, at its own cost and expense, take any and all actions necessary to defend title to the Collateral against all persons and to defend the Security Interest of the Secured Parties in the Collateral and the priority thereof against any Lien.

 

Section 4.5. *Inspection andVerification*. The Secured Parties and such persons as the Secured Parties may reasonably designate shall have the right to inspect the Collateral, all records related thereto (and to make extracts and copies from such records) and thepremises upon which any of the Collateral is located, to discuss the Grantor’s affairs with the officers of the Grantor and its independent accountants and to verify under reasonable procedures the validity, amount, quality, quantity, value,condition and status of, or any other matter relating to, the Collateral, including, in the case of collateral in the possession of any third Person, by contacting any account debtor or third Person possessing such Collateral for the purpose ofmaking such a verification. Out-of-pocket expenses in connection with any inspections by representatives of the Secured Parties shall be (a) the obligations of the Grantor with respect to any inspection after the Secured Parties’ demand paymentof the Notes or (b) the obligation of the Secured Parties in any other case. 

 

Section 4.6. *Taxes; Encumbrances*. At their option, the Secured Parties may discharge, Liens other than Existing Liens at any time levied or placed on the Collateral and may pay for themaintenance and preservation of the Collateral to the extent the Grantor fails to do so and the Grantor shall reimburse the Secured Parties on demand for any payment made or any expense incurred by the Secured Parties pursuant to the foregoingauthorization; provided, however, that nothing in this Section shall be interpreted as excusing the Grantor from the performance of, or imposing any obligation on the Secured Parties to cure or perform, any covenants or other obligation of theGrantor with respect to any Lien or maintenance or preservation of Collateral as set forth herein. 

 

Section 4.7. *Use and Disposition of Collateral*. The Grantor shall not make or permit to be made an assignment, pledge orhypothecation of any Collateral or shall grant any other Lien in respect of the Collateral without the prior written consent of the Secured Parties. The Grantor shall not make or permit to be made any transfer of any Collateral and the Grantor shallremain at all times in possession of the Collateral owned by it, other than with respect to Existing Liens and other liens approved by the Secured Parties. 

 

Section 4.8. *Insurance/Notice of Loss*. Within a reasonable period of time following the date of this Agreement, Grantor, atits own expense, shall maintain or cause to be maintained 

 

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insurance covering physicalloss or damage to the Collateral. In extension of the foregoing and without limitation, such insurance shall be payable to the Secured Parties as loss payee under a “standard” loss payee clause, and the Secured Parties shall be listed asan “additional insured” on Grantor’s general liability insurance. Such insurance shall not be terminated, cancelled or not renewed for any reason, including non-payment of insurance premiums, unless the insurer shall have provided theSecured Parties at least 30 days prior written notice. Grantor irrevocably makes, constitutes and appoints the Secured Parties (and all officers, employees or agents designated by the Secured Parties) as its true and lawful agent andattorney-in-fact for the purpose, at any time following the Secured Parties’ demand for payment of the Notes, of making, settling and adjusting claims in respect of Collateral under policies of insurance, endorsing the name of Grantor on anycheck, draft, instrument or other item of payment for the proceeds of such policies of insurance and for making all determinations and decisions with respect thereto. In the event that Grantor at any time or times shall fail to obtain or maintainany of the policies of insurance required hereby or to pay any premium in whole or part relating thereto, the Secured Parties may, without waiving or releasing any obligation or liability of Grantor hereunder, in their sole discretion, obtain andmaintain such policies of insurance and pay such premium and take any other actions with respect thereto as the Secured Parties deem advisable. All sums disbursed by the Secured Parties in connection and in accordance with this Section, includingreasonable attorneys’ fees, court costs, expenses and other charges relating thereto, shall be payable upon demand, by Grantor to the Secured Parties and shall be additional Obligations secured hereby. Grantor shall promptly notify the SecuredParties if any material portion of the Collateral owned or held by Grantor is damaged or destroyed. The proceeds of any casualty insurance in respect of any casualty loss of any of the Collateral shall (i) so long as the Secured Parties have notdemanded payment of the Notes, be disbursed to Grantor for direct application by Grantor solely to the repair or replacement of Grantor’s property so damaged or destroyed, and (ii) in all other circumstances, be held by the Secured Parties ascash collateral for the Obligations. The Secured Parties may, at their sole option, disburse from time to time all or any part of such proceeds so held as cash collateral, upon such terms and conditions as the Secured Parties may reasonablyprescribe, for direct application by the Secured Parties solely to the repair or replacement of Grantor’s property so damaged or destroyed, or Grantor may apply all or any part of such proceeds to the Obligations. 

 

Section 4.9. *Legend*. Grantor shall legend, inform and manner satisfactory to the Secured Parties, its accounts and its books, records and documents evidencing or pertaining thereto with an appropriate reference to the fact that such accounts have been assigned to the Secured Parties and thatthe Secured Parties have a security interest therein. 

 

*******ARTICLE V.**********Further Assurances; Power of Attorney*******

 

Section 5.1. *Further Assurances*. Grantor shall, at its own expense, execute, acknowledge, deliver and cause to be duly filedall such further instruments and documents and take all such actions as the Secured Parties may from time to time reasonably request to better assure, preserve, protect and perfect the Security Interest and the rights and remedies created hereby,including the payment of any fees and taxes required in connection with the execution and delivery of this Agreement, the granting of the Security Interest and the filing of any financing statements (including fixture filings) or other documents inconnection herewith or therewith. If any amount payable under or in connection with any of the Collateral shall be or become evidenced by any promissory note or other instrument, such note or instrument shall be 

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immediately pledged anddelivered to the Secured Parties, duly endorsed in a manner satisfactory to the Secured Parties. 

 

Section 5.2.    *Power of Attorney*. 

 

(a) Grantor hereby irrevocably (as a power coupled with an interest) constitutes and appoints the Secured Parties (and all officers,employees or agents designated by the Secured Parties), its attorney-in-fact with full power of substitution, for the benefit of the Secured Parties, 

 

(i) to take all appropriate action and to execute all documents and instruments that may be necessary or desirable toaccomplish the purposes of this Agreement, and without limiting the generality of the foregoing, Grantor hereby grants the power to file one or more financing statements (including fixture filings), continuation statements, filings with the UnitedStates Patent and Trademark Office or United States Copyright Office (or any successor office or any similar office in any other country) or other documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the SecurityInterest granted by Grantor, without the signature of Grantor, and naming Grantor as debtor and the Secured Parties as secured party; and 

 

(ii) at any time following the Secured Parties’ demand for payment of the Notes (i) to receive, endorse, assignand/or deliver any and all notes, acceptances, checks, drafts, money orders or other evidences of payment relating to the Collateral or any part thereof; (ii) to demand, collect, receive payment of, give receipt for and give discharges and releasesof all or any of the Collateral; (iii) to sign the name of Grantor on any invoice or bill of lading relating to any of the Collateral; (iv) to send verifications of accounts to any account debtor or any other Person liable for an account; (v) tocommence and prosecute any and all suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect or otherwise realize on all or any of the Collateral or to enforce any rights in respect of any Collateral; (vi)to settle, compromise, compound, adjust or defend any actions, suits or proceeding relating to all or any of the Collateral; and (vii) to use, sell, assign, transfer, pledge, make any agreement with respect to or otherwise deal with all or any ofthe Collateral, and to do all other acts and things necessary to carry out the purposes of this Agreement, as fully and completely as though the Secured Parties were the absolute owner of the Collateral for all purposes; *provided, however,*that nothing herein contained shall be construed as requiring or obligating the Secured Parties to make any commitment or to make any inquiry as to the nature or sufficiency of any payment received by the Secured Parties, or to present or fileany claim or notice, or to take any action with respect to the Collateral or any part thereof or the moneys due or to become due in respect thereof or any property covered thereby, and no action taken or omitted to be taken by the Secured Partieswith respect to the Collateral or any part thereof shall give rise to any defense, counterclaim or offset in favor of Grantor or to any claim or action against the Secured Parties. 

 

(b) The provisions of this Article shall in no event relieve Grantor of any of its obligations hereunder withrespect to the Collateral or any part thereof or impose any obligation on the Secured Parties to proceed in any particular manner with respect to the Collateral or any part thereof, or in any way limit the exercise by the Secured Parties of anyother or further right 

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which it may have on the dateof this Agreement or hereafter, whether hereunder, by law or otherwise. 

 

*******ARTICLE VI.**********Remedies*******

 

Section 6.1.    *Remedies upon Default.*

 

(a) Upon the occurrence and during the continuance of an Event of Default, Grantor agrees to deliver each item of itsCollateral to the Secured Parties on demand, and it is agreed that the Secured Parties shall have the right to take any of or all the following actions at the same or different times (but at all times subject to any Existing Liens): with or withoutlegal process and with or without prior notice or demand for performance, to take possession of the Collateral and without liability for trespass to enter any premises where the Collateral may be located for the purpose of taking possession of orremoving the Collateral, exercise Grantor’s right to bill and receive payment for completed work and, generally, to exercise any and all rights afforded to a secured party under the Uniform Commercial Code or other applicable law. Withoutlimiting the generality of the foregoing, Grantor agrees that the Secured Parties shall have the right, subject to the mandatory requirements of applicable law, to sell or otherwise dispose of all or any part of the Collateral, at public or privatesale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery as the Secured Parties shall deem appropriate. The Secured Parties shall be authorized at any such sale (if it deems it advisable to doso) to restrict the prospective bidders or purchasers to persons who will represent and agree that they are purchasing the Collateral for their own account for investment and not with a view to the distribution or sale thereof, and upon consummationof any such sale the Secured Parties shall have the right to assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each such purchaser at any such sale shall hold the property sold absolutely, free from anyclaim or right on the part of Grantor, and Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which Grantor now has or may at any time in the future have under any rule of law or statute now existingor hereafter enacted. 

 

(b) TheSecured Parties shall give Grantor ten (10) days’ written notice (which Grantor agrees is reasonable notice within the meaning of Section 9-504(3) of the Uniform Commercial Code) of the Secured Parties’ intention to make any sale ofCollateral. Such notice, in the case of a public sale, shall state the time and place for such sale and, in the case of a sale at a broker’s board or on a securities exchange, shall state the board or exchange at which such sale is to be madeand the day on which the Collateral, or portion thereof, will first be offered for sale at such board or exchange. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as the SecuredParties may fix and state in the notice (if any) of such sale. At any such sale, the Collateral, or portion thereof, to be sold may be sold in one lot as an entirety or in separate parcels, as the Secured Parties may (in their sole and absolutediscretion) determine. The Secured Parties shall not be obligated to make any sale of any Collateral if it shall determine not to do so, regardless of the fact that notice of sale of such Collateral shall have been given. The Secured Parties may,without 

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notice orpublication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for sale, and such sale may, without further notice, be made at the time and place to which the same wasso adjourned. In case any sale of all or any part of the Collateral is made on credit or for future delivery, the Collateral so sold may be retained by the Secured Parties until the sale price is paid by the purchaser or purchasers thereof, but theSecured Parties shall not incur any liability in case any such purchaser or purchasers shall fail to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may be sold again upon like notice. At any public (or,to the extent permitted by law, private) sale made pursuant to this Section, the Secured Parties may bid for or purchase, free (to the extent permitted by law) from any right of redemption, stay, valuation or appraisal on the part of Grantor (allsaid rights being also hereby waived and released to the extent permitted by law), the Collateral or any part thereof offered for sale and may make payment on account thereof by using any claim then due and payable to the Secured Parties fromGrantor as a credit against the purchase price, and the Secured Parties may, upon compliance with the terms of sale, hold, retain and dispose of such property without further accountability to Grantor therefor. For purposes hereof, a writtenagreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof; the Secured Parties shall be free to carry out such sale pursuant to such agreement and Grantor shall not be entitled to the return of the Collateral orany portion thereof subject thereto, notwithstanding the fact that after the Secured Parties shall have entered into such an agreement all Obligations have been paid in full. As an alternative to exercising the power of sale herein conferred uponit, the Secured Parties may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuantto a proceeding by a court-appointed receiver. 

 

Section 6.2. *Application of Proceeds*. The Secured Parties shall apply the proceeds of any collection or sale of the Collateral, as well as any Collateral consisting of cash, as follows: 

 

(a) FIRST, to the payment of all costs and expenses incurredby the Secured Parties in connection with such collection or sale or otherwise in connection with this Agreement or any of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, and any other costs orexpenses incurred in connection with the exercise of any right or remedy hereunder, under the Letter Loan Agreement, the Notes and the other Loan Documents; 

 

(b) SECOND, to the payment in full of the Obligations; and 

 

(c) THIRD, to Grantor, its successors or assigns, or to whomsoever may be lawfully entitled to receive thesame, or as a court of competent jurisdiction may otherwise direct. 

 

Subject to the foregoing, the Secured Parties shall have absolute discretion as to the time of application of such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by theSecured Parties (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of any such proceeds, moneys or balances by the Secured Parties or of the officer making the sale shall be a sufficient dischargeto the 

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purchaser or purchasers ofthe Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Secured Parties or such officer or be answerable in any way for the misapplication thereof.

 

Section 6.3.  *Grant of Licenseto Use Intellectual Property*.  For the purpose of enabling the Secured Parties to exercise rights and remedies under this Article at such time as the Secured Parties shall be lawfully entitled to exercise such rights and remedies,Grantor hereby grants to the Secured Parties an irrevocable, non-exclusive license (exercisable without payment of royalty or other compensation to Grantor) to use, license or sub-license any of the Collateral consisting of intellectual property nowowned or hereafter acquired by Grantor, 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 software and programs usedfor the compilation or printout thereof. The use of such license by the Secured Parties may be exercised, at the option of the Secured Parties, only following the Secured Parties’ demand for payment of the Notes. 

 

*******ARTICLE VII. Miscellaneous*******

 

Section7.1.  *Notices*. All communications and notices hereunder to the Grantor and to the Secured Parties shall (except as otherwise expressly permitted herein) be in writing and delivered to the Grantor or the Secured Parties, asthe case may be, as provided in the Letter Loan Agreement. 

 

Section 7.2.  *Security Interest Absolute*. All rights of the Secured Parties hereunder, the Security Interest and all obligations of Grantor hereunder shall be absolute and unconditional irrespective of (a) anylack of validity or enforceability of the Letter Loan Agreement, the Notes, any Loan Document or any agreement with respect to any of the Obligations or any other agreement or instrument relating to any of the foregoing, (b) any change in the time,manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Letter Loan Agreement, the Notes, any Loan Document or any other agreement orinstrument, (c) any exchange, release or non-perfection of any Lien on other collateral, or any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, or (d) anyother circumstance that might otherwise constitute a defense available to, or a discharge of, Grantor in respect of the Obligations or this Agreement. 

 

Section 7.3.  *Survival of Agreement*. All covenants, agreements, representations and warranties made by Grantorherein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the making of the loan and the executionand delivery to the Secured Parties of the Notes, regardless of any investigation made by the Secured Parties or on their behalf; and shall continue in full force and effect until this Agreement shall terminate. 

 

Section 7.4.  *Binding Effect; SeveralAgreement; Successors and Assigns*. This Agreement shall become effective as to Grantor when a counterpart hereof executed on behalf of Grantor shall have been delivered to the Secured Parties and a counterpart hereof shall have been executedon behalf of the Secured Parties, and thereafter shall be binding upon Grantor and the 

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Secured Parties and theirrespective successors and assigns, and shall inure to the benefit of Grantor, the Secured Parties and their respective successors and assigns, except that Grantor shall not have the right to assign or transfer its rights or obligations hereunder orany interest herein or in the Collateral (and any such assignment or transfer shall be void) except as expressly contemplated by this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents. 

 

Section 7.5. *Secured Parties’ Fees and Expense;Indemnification*. 

 

(a)  Grantor agrees to pay upon demand to the Secured Parties the amount of any and all reasonable expenses, including all reasonable fees, disbursements and other charges of its counsel and of any experts or agents, whichthe Secured Parties may incur in connection with (i) the administration of this Agreement (including the customary fees and charges of the Secured Parties for any audits conducted by them or on their behalf with respect to the accounts inventory),(ii) the custody or preservation of, or the sale of, collection from or other realization upon any of the Collateral, (iii) the exercise, enforcement or protection of any of the rights of the Secured Parties hereunder or (iv) the failure of Grantorto perform or observe any of the provisions hereof. 

 

(b)  Grantor agrees to indemnify the Secured Parties and the agent, contractors and employees of the Secured Parties (collectively, the *“Indemnitees*”) against, and hold each of them harmlessfrom, any and all losses, claims, damages, liabilities and related expenses, including reasonable fees, disbursements and other charges of counsel, incurred by or asserted against any of them arising out of, in any way connected with, or as a resultof, the execution, delivery, or performance of this Agreement or any agreement or instrument contemplated hereby or any claim, litigation, investigation or proceeding relating hereto or to the Collateral, whether or not any Indemnitee is a partythereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. 

 

(c)  Any such amounts payable as provided hereunder shall be additional Obligations secured hereby. Theprovisions of this Section shall remain operative and in full force and effect regardless of the termination of this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents, the consummation of the transactions contemplatedhereby, the repayment of any of the Obligations, the invalidity or unenforceability of any term or provision of this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents, or any investigation made by or on behalf of theSecured Parties. All amounts due under this Section shall be payable on written demand therefor. 

 

Section 7.6.  *GOVERNING LAW*.  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. 

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Section7.7.  *Waivers; Amendment.*

 

        (a)  No failure or delay of the Secured Parties in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of anysuch right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Secured Parties hereunderand under the Letter Loan Agreement are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provisions of this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents orconsent to any departure by Grantor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be effective only in the specific instance and for the purpose for whichgiven. No notice to or demand on Grantor in any case shall entitle Grantor to any other or further notice or demand in similar or other circumstances. 

 

        (b)  Neither this Agreement nor any provision hereof may be waived, amended ormodified except pursuant to an agreement or agreements, in writing entered into by the Secured Parties and Grantor. 

 

Section 7.8.  *WAIVER OF JURY TRIAL*.  EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE LETTER LOAN AGREEMENT OR THE NOTES. EACH PARTY HERETO (A) CERTIFIES THAT NOREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETOHAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE LETTER LOAN AGREEMENT AND THE NOTES, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 

 

Section 7.9.*  Severability*.  In the event any one or more of the provisionscontained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it beingunderstood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace theinvalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. 

 

Section 7.10.  *Counterparts*.  This Agreement may be executed in two or morecounterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. Each party shall be entitled to rely on a facsimile signature of any other party hereunder as if it were an original.

 

Section 7.11.  *Jurisdiction;Consent to Service of Process.*

 

(a) Grantor hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of 

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the UnitedStates of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, the Letter Loan Agreement or the Notes, or for recognition or enforcement of anyjudgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federalcourt. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreementshall affect any right that the Secured Parties may otherwise have to bring any action or proceeding relating to this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents against Grantor or its properties in the courts of anyjurisdiction. 

 

(b)  Grantor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out ofor relating to this Agreement, the Letter Loan Agreement, the Notes or the other Loan Documents in any New York State or Federal court. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of aninconvenient forum to the maintenance of such action or proceeding in any such court. 

 

(c)   Each party to this Agreement irrevocably consents to service of process in the manner provided for noticesin Section 7.1. Nothing in this Agreement will affect the right of any party to this Agreement to process in any other manner permitted by law. 

 

Section 7.12. *Termination*. This Agreement and the Security Interest shall terminate when all the Obligations have been paidin full, at which time the Secured Parties shall execute and deliver to Grantor, at Grantor’s expense, all Uniform Commercial Code termination statements and similar documents which Grantor shall reasonably request to evidence such termination.Any execution and delivery of termination statements or documents pursuant to this Section shall be without recourse to or warranty by the Secured Parties. 

 

Section 7.13. *Prejudgment Remedy Waiver*. Grantor acknowledges that this Agreement, the Letter Loan Agreement, the Notes andthe other Loan Documents evidence a commercial transaction and that it could, under certain circumstances have the right, to notice of and hearing on the right of the Secured Parties to obtain a prejudgment remedy, such as attachment, garnishmentand/or replevin, upon commencing any litigation against Grantor. Notwithstanding, Grantor hereby waives all rights to notice, judicial hearing or prior court order to which it might otherwise have the right under any state or federal statute orconstitution in connection with the obtaining by the Secured Parties of any prejudgment remedy by reason of this Agreement, the Letter Loan Agreement, the Notes, the other Loan Documents or by reason of the Obligations or any renewals or extensionsof the same. Grantor also waives any and all objection which it might otherwise assert, now or in the future, to the exercise or use by the Secured Parties of any right of setoff, repossession or self help as may presently exist under statute orcommon law. 

 

Section 7.14. *ConcerningRevised Article 9 of the Uniform Commercial Code*. The parties acknowledge and agree to the following provisions of this Agreement in anticipation of the possible application, in one or more jurisdictions to the transactions contemplatedhereby, of 

 

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the revised Article 9 of theUniform Commercial Code in the form or substantially in the form approved in 1998 by the American Law Institute and the National Conference of Commissioners on Uniform State Law (“*Revised Article 9*”). 

 

(a)   In applying the law of any jurisdiction inwhich Revised Article 9 is in effect, the Collateral is all assets of Grantor, whether or not within the scope of Revised Article 9. The Collateral shall also include, without limitation, the following categories of assets as defined in RevisedArticle 9: goods (including inventory, equipment and any accessions thereto), instruments (including promissory notes), documents, accounts (including health-care-insurance receivables), chattel paper (whether tangible or electronic), depositaccounts, letter-of-credit rights (whether or not the letter of credit is evidenced by a writing), commercial tort claims, securities and all other investment property, general intangibles (including payment intangibles and software), supportingobligations and any and all proceeds of any thereof, wherever located, whether now owned and hereafter acquired. If Grantor shall at any time, whether or not Revised Article 9 is in effect in any particular jurisdiction, acquire a commercial tortclaim, as defined in Revised Article 9, Grantor shall immediately notify the Secured Parties in a writing signed by Grantor of the brief details thereof and grant to the Secured Parties in such writing a security interest therein and in the proceedsthereof, all upon the terms of this Agreement, with such writing to be in form and substance satisfactory to the Secured Parties. The Secured Parties may at any time and from time to time, pursuant to the provisions of Article V, file financingstatements, continuation statements and amendments thereto that describe the Collateral as all assets of Grantor or words of similar effect and which contain any other information required by Part 5 of Revised Article 9 for the sufficiency or filingoffice acceptance of any financing statement, continuation statement or amendment, including whether Grantor is an organization, the type of organization and any organization identification number issued to Grantor. Grantor shall furnish any suchinformation to the Secured Parties promptly upon request. Any such financing statements, continuation statements or amendments may be signed by the Secured Parties on behalf of Grantor, as provided in Article V, and may be filed at any time in anyjurisdiction whether or not Revised Article 9 is then in effect in that jurisdiction. 

 

(b)   Grantor shall at any time and from time to time, whether or not Revised Article 9 is in effect in any particular jurisdiction, take such steps as the Secured Parties may reasonablyrequest for the Secured Parties (i) to obtain an acknowledgement, in form and substance satisfactory to the Secured Parties, of any bailee having possession of any of the Collateral that the bailee holds such Collateral for the Secured Parties, (ii)to obtain “control” of any investment property, deposit accounts, letter-of-credit rights or electronic chattel paper (as such terms are defined in Revised Article 9 with corresponding provisions in §§ 9-104, 9-105, 9-106 and9-107 relating to what constitutes “control” for such items of Collateral), with any agreements establishing control to be in form and substance satisfactory to the Secured Parties, and (iii) otherwise to insure the continued perfectionand priority of the Secured Parties’ security interest in any of the Collateral and of the preservation of its rights therein, whether in anticipation and following the effectiveness of Revised Article 9 in any jurisdiction. 

 

(c)     Nothing contained in this Sectionshall be construed to narrow the scope of the security interest granted hereby in any of the Collateral or the perfection or priority thereof or to impair or otherwise limit any of the rights, powers, privileges or remedies of the Secured Partieshereunder except as (and then only to the extent) specifically mandated by Revised Article 9 to the extent then applicable. 

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*[Signaturepage follows]*

 

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IN WITNESSWHEREOF, the parties have duly executed this Security Agreement as of the day and year first written above. 

 

SPEEDCOM WIRELESS CORPORATION

 

By:
 
 
  
Name:

Title:

 

DMG LEGACY FUND LLC

 

By:
 
 
  
Name:

Title:

 

DMG LEGACY INSTITUTIONAL FUND LLC

 

By:
 
 
  
Name:

Title:

 

DMG LEGACY INTERNATIONAL LTD.

 

By:
 
 
  
Name:

Title:

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**SCHEDULE A**

 

**Places of Business; Chief ExecutiveOffice; Filing Locations**

 

State of Incorporation:

Delaware 

 

Chief Executive Office:

7020 Professional Parkway East 

Sarasota, Florida 34240 

 

Filing Locations:

Secretary of State of the State of Delaware 

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**SCHEDULE 3.3**

**Existing Liens**

 

Tax Lien held by the State of Florida Department of Revenue for approximately $15,000. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGLegacy International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated April 26, 2002 among the parties. 

 

SDS Merchant Fund, L.P., DMG Legacy Fund LLC, DMG LegacyInstitutional Fund LLC and DMG International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated June 10, 2002 among the parties. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGLegacy International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated August 8, 2002 among the parties. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGLegacy International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated September 18, 2002 among the parties. 

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**SCHEDULE 3.4**

**Absence of Other Liens**

 

Tax Lien held by the State of Florida Department of Revenue for approximately $15,000. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGLegacy International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated April 26, 2002 among the parties. 

 

SDS Merchant Fund, L.P., DMG Legacy Fund LLC, DMG LegacyInstitutional Fund LLC and DMG International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated June 10, 2002 among the parties. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGInternational Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated August 8, 2002 among the parties. 

 

DMG Legacy Fund LLC, DMG Legacy Institutional Fund LLC and DMGLegacy International Ltd. hold a blanket security interest in all of the Company’s accounts receivable and personal property pursuant to the Security Agreement dated September 18, 2002 among the parties.