Exhibit
10.4


 


SECURITY AGREEMENT


 


THIS SECURITY AGREEMENT (the “Agreement”) is
made this 30th day of April, 2010, by GOVDEALS, INC., a corporation organized
under the laws of the State of Delaware (the “Debtor”), for the benefit of BANK
OF AMERICA, N.A., a national banking association, its successors and assigns
(the “Lender”).


 


RECITALS


 


A.                                   LIQUIDITY SERVICES, INC., a corporation
organized under the laws of the State of Delaware (the “Borrower”) has applied
to the Lender for a revolving credit facility in the maximum principal amount
of Thirty Million Dollars ($30,000,000) and, as part of that revolving credit facility, a letter
of credit facility in the maximum principal amount of Ten Million Dollars
($10,000,000)
(collectively, the “Credit Facilities”), which is to be advanced pursuant to
the terms of a Financing and Security Agreement of even date herewith by and
between the Borrower and the Lender (as amended, modified, restated,
substituted, extended and renewed at any time and from time to time, the “Financing
Agreement”).


 


B.                                     All defined terms used in this Agreement
and not defined herein shall have the meaning given to such terms in the
Financing Agreement.


 


C.                                     The payment and performance of all
Obligations of the Borrower under the Financing Documents are unconditionally
and irrevocably guaranteed by Debtor pursuant to the terms and conditions of
that certain Guaranty of Payment Agreement of even date herewith, executed by
Debtor in favor of Lender (as amended, modified, substituted, extended and renewed
from time to time the “Guaranty”).


 


D.                                    The Lender has required, as a condition
to entering into the Financing Agreement, that the Debtor execute, among other
things, the Guaranty and this Agreement as additional security for the payment
and performance of the Guaranty.


 


AGREEMENTS


 


NOW, THEREFORE, in consideration of the
premises, the mutual agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Debtor and the Lender hereby agree as follows:


 


ARTICLE I


COLLATERAL


 


As security for the payment of all of the
Obligations evidenced by the Financing Documents and for the Debtor’s
performance of, and compliance with, all of the terms, covenants, conditions,
stipulations and agreements contained in the Guaranty and all other Obligations
of the Debtor to the Lender, whether now existing or hereafter created, the
Debtor hereby grants to the Lender and agrees that the Lender shall have a
perfected, continuing security interest in all of the following property and
assets of the Debtor, wherever situated (the “Collateral”):


 

















 


(a)                                  All inventory, both now owned and
hereafter acquired and as the same may now and hereafter from time to time be
constituted (the “Inventory”);


 


(b)                                 All accounts and contract rights, chattel
paper, instruments and documents, both now owned and hereafter created or
acquired (individually, an “Account” and collectively, the “Accounts”);


 


(c)                                  All equipment, furniture and fixtures,
both now owned and hereafter acquired, together with (i) all additions,
parts, fittings, accessories, special tools, attachments and accessions now and
hereafter affixed thereto and/or used in connection therewith and (ii) all
replacements thereof and substitutions therefore (the “Equipment”);


 


(d)                                 All general intangibles (including,
without limitation, all books and records, things in action, contractual
rights, tax returns, goodwill, literary rights, rights to performance,
copyrights, trademarks and patents), both now owned and hereafter acquired;


 


(e)                                  All notes, notes receivable, drafts,
acceptances and similar instruments and documents, both now owned and hereafter
created or acquired;


 


(f)                                    all proceeds (cash and non-cash) and
products thereof, and all returned, rejected or repossessed goods, the sale or
lease of which shall have given or shall give rise to an Account and all cash
and non-cash proceeds and products of all such goods;


 


provided, however,
notwithstanding the foregoing, “Collateral” shall not include (i) any
permit, lease, license, contract, instrument or other agreement belonging to
the Debtor that prohibits, or requires the consent of any Person other than the
Debtor as a condition to, the creation of a Lien thereon, or any permit, lease,
license contract or other agreement belonging to the Debtor to the extent that
any requirement of law applicable thereto prohibits the creation of a Lien
thereon, but only, in each case, to the extent, and for so long as, such
prohibition is not terminated or rendered unenforceable or otherwise deemed
ineffective by the Uniform Commercial Code, Bankruptcy Code or any other
requirement of Law, (ii) any United States intent-to-use trademark or
service mark application to the extent, and solely during the period in which
the grant of a Lien therein would impair the validity or the enforceability of
such intent-to-use trademark or service mark under federal law, and (iii) any
property subject to a Lien permitted by the Financing Agreement, if and for so
long as the contractual obligation governing such Lien prohibits the Lien of
this Agreement applying to such property.


 


The Debtor further agrees that the Lender shall have
in respect thereof all of the rights and remedies of a secured party under the
Uniform Commercial Code as well as those provided in this Agreement.  The Debtor covenants and agrees to execute
and deliver such financing statements and other instruments and filings as are
necessary in the opinion of the Lender to perfect such security interest.  Notwithstanding the fact that the proceeds of
the Collateral constitute a part of the Collateral, the Debtor may not dispose
of the Collateral, or any part thereof, other than in the ordinary course of
its business or as otherwise may be permitted by this Agreement.


 


2

















 


ARTICLE II


REPRESENTATIONS AND WARRANTIES


 


Debtor represents and warrants to the Lender
that:


 


Section 2.1                                      Title to Properties.


 


Debtor has good and marketable title to all
of its properties, including, without limitation, the Collateral and Debtor has
legal, enforceable and uncontested rights to use freely such property and
assets, except, in each case, as could not reasonably be expected to have a
Material Adverse Effect.


 


Section 2.2                                      Accounts.


 


With respect to all Accounts and to the best
of Debtor’s knowledge (a) they are genuine, and are not evidenced by a
judgment, an Instrument, or Chattel Paper (unless such judgment has been
assigned and such Instrument or Chattel Paper has been endorsed and delivered
to Lender); (b) they represent bona fide transactions completed in
accordance with the terms and provisions contained in the invoices, purchase
orders and other contracts relating thereto, and the underlying transaction
therefor is in accordance with all applicable Laws; and (c) the amounts
shown on Debtor’s books and records, with respect thereto are actually and
absolutely owing to Debtor and are not contingent or subject to reduction for
any reason other than regular discounts, credits or adjustments allowed by
Debtor in its reasonable discretion.


 


Section 2.3                                      Inventory.


 


Substantially all of the Inventory of Debtor
is located at the places of business set forth on the Collateral Disclosure
List or as permitted by Section 6.2.14 of the Financing Agreement.


 


Section 2.4                                      Patents, Trademarks, Etc.


 


Debtor owns, possesses, or has the right to
use all necessary patents, licenses, trademarks, copyrights, permits and
franchises to own its properties and to conduct its business as now conducted,
without known conflict with the rights of any other Person, except, in each
case, as would not reasonably be expected to have a Material Adverse
Effect.  Any and all obligations to pay
royalties or other charges with respect to such properties and assets are
properly reflected on the financial statements previously furnished to Lender,
to the extent required by GAAP.


 


Section 2.5                                      Business Names and Addresses.


 


Debtor has not changed its name, identity or
corporate structure in a manner which could result in a Material Adverse
Effect, since the date Debtor or Borrower last delivered a Collateral
Disclosure List to Lender.


 


3

















 


Section 2.6                                      Presence of Hazardous Materials or
Hazardous Materials Contamination.


 


To the best of Debtor’s knowledge, (a) no
Hazardous Materials are located on any real property owned, controlled or
operated by of Debtor or for which Debtor is, or is claimed to be, responsible,
except for reasonable quantities of necessary supplies for use by Debtor in the
ordinary course of its current line of business and stored, used and disposed
in accordance with applicable Laws; and (b) no property owned, controlled
or operated by Debtor or for which Debtor has, or is claimed to have,
responsibility has ever been used as a manufacturing, storage, or dump site for
Hazardous Materials nor is affected by Hazardous Materials Contamination at any
other property.  “Hazardous Materials”
means (a) any “hazardous waste” as defined by the Resource Conservation
and Recovery Act of 1976, as amended from time to time, and regulations
promulgated thereunder; (b) any “hazardous substance” as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended from time to time, and regulations promulgated thereunder; (c) any
substance the presence of which on any property now or hereafter owned,
acquired or operated by Debtor is prohibited by any Law similar to those set
forth in this definition; and (d) any other substance which by Law
requires special handling in its collection, storage, treatment or
disposal.  “Hazardous Materials
Contamination” means the contamination (whether presently existing or occurring
after the date of this Agreement) by Hazardous Materials of any property owned,
operated or controlled by Debtor or for which Debtor has responsibility,
including, without limitation, improvements, facilities, soil, ground water,
air or other elements on, or of, any property now or hereafter owned, acquired
or operated by Debtor, and any other contamination by Hazardous Materials for
which Debtor is, or is claimed to be, responsible.


 


Section 2.7                                      Perfection and Priority of Collateral.


 


Lender has, or upon execution of this
Agreement and filing of any financing statement required under the Uniform
Commercial Code, will have a valid and perfected Lien on and security interest
in all Collateral, free of all other Liens, claims and rights of third parties
whatsoever except Permitted Liens.


 


Section 2.8                                      Collateral Disclosure List.


 


As of the Closing Date, and at all times thereafter,
whenever a Collateral Disclosure List is delivered to Lender pursuant to the
Financing Agreement, the information contained in the Collateral Disclosure
List is complete and correct in all material respects.  The Collateral Disclosure List completely and
accurately identifies (a) the type of entity, the state of organization
and the chief executive office of Debtor, (b) each other place of business
of Debtor, (c) the location of all books and records pertaining to the
Collateral, and (d) each location, other than the foregoing, where any of
the Collateral is located and other than as permitted by Section 6.2.14 of
the Financing Agreement.


 


Section 2.9                                      No Suspension or Debarment.


 


Neither Debtor nor any Subsidiary nor any of
their respective directors, officers or employees has received any notice of,
or information concerning, any proposed, contemplated or initiated suspension
or debarment, be it temporary or permanent, due to an administrative or a 


 


4

















 


statutory basis, of Debtor
or any Subsidiary by the United States of America or any department, agency or
instrumentality thereof.


 


Section 2.10                                Taxes.


 


Debtor has filed all returns, reports and
forms for taxes that, to the knowledge of Debtor, are required to be filed, and
has paid all taxes as shown on such returns or on any assessment received by
it, to the extent that such taxes have become due, unless and to the extent
only that such taxes, assessments and governmental charges are currently contested
in good faith and by appropriate proceedings by Debtor, such taxes are not the
subject of any Liens other than Permitted Liens, and adequate reserves therefor
have been established as required under GAAP. 
All tax liabilities of Debtor were, as of the date of the audited
financial statements previously furnished to Lender, and are now, adequately
provided for on the books of Debtor.


 


Section 2.11                                ERISA.


 


With respect to any Plan that is maintained
or contributed to by Debtor and/or by any Commonly Controlled Entity or as to
which Debtor retains material liability: (a) no “accumulated funding
deficiency” as defined in Code §412 or ERISA §302 has occurred, whether or not
that accumulated funding deficiency has been waived; (b) no Reportable
Event has occurred other than events for which reporting has been waived; (c) no
termination of any plan subject to Title IV of ERISA has occurred; (d) neither
Debtor nor any Commonly Controlled Entity has incurred a “complete withdrawal”
within the meaning of ERISA §4203 from any Multi-employer Plan; (e) neither
Debtor nor any Commonly Controlled Entity has incurred a “partial withdrawal”
within the meaning of ERISA §4205 with respect to any Multi-employer Plan; (f) no
Multi-employer Plan to which Debtor or any Commonly Controlled Entity has an
obligation to contribute is in “reorganization” within the meaning of ERISA
§4241 nor has notice been received by Debtor or any Commonly Controlled Entity
that such a Multi-employer Plan will be placed in “reorganization”.  “Commonly Controlled Entity” means an entity,
whether or not incorporated, which is under common control with Debtor within
the meaning of Section 414(b) or (c) of the Internal Revenue
Code.  “Plan” means any pension plan that
is covered by Title IV of ERISA and in respect of which Debtor or a Commonly
Controlled Entity is an “employer” as defined in Section 3 of ERISA.  “Multi-employer Plan” means a Plan that is a
Multi-employer plan as defined in Section 4001(a)(3) of ERISA.


 


ARTICLE III


AFFIRMATIVE COVENANTS OF DEBTOR


 


Until payment in full and the performance of
all of the Obligations, the Debtor agrees with Lender as follows:


 


Section 3.1                                      Compliance with Laws.


 


Debtor shall comply with all applicable Laws
and observe the valid requirements of Governmental Authorities, the
noncompliance with or the nonobservance of which could reasonably be expected
to have a Material Adverse Effect.


 


5

















 


Section 3.2                                      Insurance Generally.


 


(a)                                  Debtor shall maintain insurance in an amount
customary and consistent with Debtor’s current practice, covering property
damage (including loss of use and occupancy) to any of Debtor’s properties,
business interruption insurance, public liability insurance including coverage
for contractual liability, product liability and workers’ compensation, and any
other insurance which is usual for Debtor’s business.  Each policy shall provide for at least thirty
(30) days prior notice to Lender of any cancellation thereof and name Lender as
loss payee or additional insured, as appropriate.


 


(b)                                 In addition to the insurance requirements
stated above, Debtor shall also maintain all risk property damage insurance
policies covering the tangible property comprising the Collateral to the extent
and in amounts customary and consistent with Debtor’s current practice.  The insurance must include a lender’s loss
payable endorsement in favor of Lender in a form acceptable to Lender in its
reasonable discretion and shall provide for at least thirty (30) days prior
notice to Lender of any cancellation thereof.


 


(c)                                  Upon the request of Lender, Debtor shall
deliver to Lender a copy of each insurance policy, or, if permitted by Lender,
a certificate of insurance listing all insurance in force.


 


Section 3.3                                      Existence.


 


Debtor shall maintain its existence in good
standing in the State of Delaware and in each other jurisdiction where it is
required to register or qualify to do business if the failure to do so in such
other jurisdiction could reasonably be expected to have a Material Adverse
Effect and remain a Registered Organization under the laws of the State of
Delaware.


 


Section 3.4                                      Maintenance of Properties.


 


Debtor will at all times (a) maintain,
preserve, protect and keep its properties, whether owned or leased, in good
operating condition, working order and repair (ordinary wear and tear
excepted), and from time to time will make all proper repairs, maintenance,
replacements, additions and improvements thereto needed to maintain such
properties in good operating condition, working order and repair, and (b) do
or cause to be done all things necessary to preserve and to keep in full force
and effect its material franchises, leases of real and personal property, trade
names, patents, trademarks, copyrights and permits which are necessary for the
orderly continuance of its business, except, in each case, where the failure to
do so could not reasonably be expected to have a Material Adverse Effect.


 


Section 3.5                                      Maintenance of the Collateral.


 


Debtor will maintain the Collateral in the
condition purchased, excepting ordinary wear and tear, and will not permit
anything to be done to the Collateral that may materially impair the value
thereof, taken a whole.  Lender shall not
have any duty to, and Debtor hereby releases Lender from all claims of loss or
damage caused by the delay or failure to collect or enforce any of the
receivables of Debtor or to, preserve any rights against any other party with
an interest in the Collateral.


 


6

















 


Section 3.6                                      Taxes.


 


Except to the extent that the validity or
amount thereof is being contested in good faith and by appropriate proceedings,
Debtor will pay and discharge all taxes prior to the date when any interest or
penalty would accrue for the nonpayment thereof.


 


Section 3.7                                      ERISA.


 


Debtor will, and will cause each of its
Commonly Controlled Entities to, comply with the funding requirements of ERISA
with respect to Plans for its respective employees.  Debtor will not permit with respect to any Plan
(a) any prohibited transaction or transactions under ERISA or the Internal
Revenue Code, which results, or may result, in any material liability of Debtor
and/or any Subsidiary and/or Affiliate, or (b) any Reportable Event if,
upon termination of the Plan or Plans with respect to which one or more such
Reportable Events shall have occurred, there is or would be any material
liability of Debtor and/or any Subsidiary and/or Affiliate to the PBGC.  Upon Lender’s request, Debtor will deliver to
Lender a copy of the most recent actuarial report, financial statements and
annual report completed with respect to any Plan.


 


Section 3.8                                      Hazardous Materials; Contamination.


 


Debtor agrees to:


 


(a)                                  give notice to Lender immediately upon
Debtor’s acquiring knowledge of the presence of any Hazardous Materials or any
Hazardous Materials Contamination on any property owned, operated or controlled
by Debtor or for which Debtor is, or is claimed to be, responsible (provided
that such notice shall not be required for Hazardous Materials placed or stored
on such property in accordance with applicable Laws in the ordinary course
(including, without limitation, quantity) of Debtor’s line of business
expressly described in this Agreement), with a full description thereof;


 


(b)                                 promptly comply with any Laws requiring
the removal, treatment or disposal of Hazardous Materials or Hazardous
Materials Contamination and provide Lender with satisfactory evidence of such
compliance;


 


(c)                                  provide Lender, within thirty (30) days
after a demand by Lender, with a bond, letter of credit or similar financial
assurance evidencing to Lender’s satisfaction that the necessary funds are
available to pay the cost of removing, treating, and disposing of such
Hazardous Materials or Hazardous Materials Contamination and discharging any
Lien which may be established as a result thereof on any property owned,
operated or controlled by Debtor or for which Debtor is, or is claimed to be,
responsible; and


 


(d)                                 as part of the Obligations of Debtor,
defend, indemnify and hold harmless Lender and its agents, employees, trustees,
successors and assigns from any and all claims which may now or in the future
(whether before or after the termination of this Agreement) be asserted as a
result of the presence of any Hazardous Materials or any Hazardous Materials
Contamination on any property owned, operated or controlled by Debtor or for
which Debtor is, or is claimed to be, responsible.  Debtor acknowledges and agrees that this
indemnification shall survive the termination of this Agreement and the payment
and performance of all of the other Obligations.


 


7

















 


Section 3.9                                      Other Liens, Security Interests, Etc.


 


Debtor will keep the Collateral free from all
liens, security interests and claims of every kind and nature, other than the
security interest granted to the Lender pursuant to this Agreement and the
Permitted Liens.


 


Section 3.10                                Defense of Title and Further Assurances.


 


At its expense, Debtor will defend the title
to the Collateral (and any part thereof), and will, except as otherwise set
forth in this Section 3.10, immediately execute, acknowledge and deliver
any renewal, affidavit, deed, assignment, security agreement, certificate or
other document which Lender may require in order to perfect, preserve,
maintain, continue, protect and/or extend the Lien granted to Lender under this
Agreement and the first priority of that Lien, subject only to the Permitted
Liens.  Debtor hereby authorizes the
filing of any financing statement or continuation statement required under the
Uniform Commercial Code.  Debtor will
take any and all steps and observe such formalities as Lender may require, in
order to create and maintain a valid Lien upon, pledge of, or paramount
security interest in, the Collateral, subject to the Permitted Liens.  Debtor shall pay to Lender on demand all
taxes, costs and expenses incurred by Lender in connection with the
preparation, execution, recording and filing of any such document or
instrument.  To the extent that the
proceeds of any of the Accounts or receivables of Debtor are expected to become
subject to the control of, or in the possession of, a party other than Debtor
or Lender, Debtor shall cause all such parties to execute and deliver security
documents or other documents as requested by Lender and as may be necessary to
evidence and/or perfect the security interest of Lender in those proceeds.  Debtor hereby irrevocably appoints Lender as
Debtor’s attorney-in-fact, with power of substitution, in the name of Lender or
in the name of Debtor or otherwise, for the use and benefit of Lender, but at
the cost and expense of Debtor and without notice to Debtor, to execute and
deliver any and all of the instruments and other documents and take any action
which Lender may require pursuant the foregoing provisions of this Section 3.10.


 


Section 3.11                                Landlord’s Waivers.


 


Debtor shall use commercially reasonable
efforts to deliver to Lender a waiver in form acceptable to Lender and its
counsel in their reasonable discretion from each landlord for Debtor’s premises
listed on Schedule 6.1.14 of the Financing Agreement.


 


Section 3.12                                Government Accounts.


 


Debtor will promptly notify Lender if any of
the Receivables arise out of contracts with the United States of America or any
department, agency or instrumentality thereof for the sale of products or
provision of services and, as appropriate and at request of Lender, within
thirty (30) days of such request, execute any documents and take any steps
required by Lender in order that all moneys due and to become due under such
contracts shall be assigned to Lender and notice thereof given to the
applicable Governmental Authority under the Federal Assignment of Claims Act or
any other applicable Laws.  Debtor shall
provide Lender with all necessary information and will execute and deliver such
documents as are required to comply with the Federal Assignment of Claims Act
of 1940 (31 U.S.C. §3727 and 41 U.S.C. §15).


 


8

















 


Section 3.13                                Use of Premises and Equipment.


 


Debtor agrees that until the Obligations are
fully paid and Lender has no further obligation to extend any credit to
Borrower, during the occurrence and continuance of an Event of Default, Lender
shall have, and is hereby granted, a right of ingress and egress to the places
where the Collateral is located, and may proceed over and through any of Debtor’s
owned or leased property.


 


Section 3.14                                Protection of Collateral.


 


Debtor agrees that Lender may at any time
following an Event of Default take such steps as Lender deems reasonably
necessary to protect the interest of Lender in, and to preserve the Collateral,
including, the hiring of such security guards or the placing of other security
protection measures as Lender deems appropriate, may employ and maintain at any
of Debtor’s premises a custodian who shall have full authority to do all acts
necessary to protect the interests of Lender in the Collateral and may lease
warehouse facilities to which Lender may move all or any part of the Collateral
to the extent commercially reasonable. 
Debtor agrees to cooperate fully with Lender’s efforts to preserve the
Collateral and will take such actions to preserve the Collateral as Lender may
reasonably direct.  All of Lender’s
expenses of preserving the Collateral, including any reasonable expenses
relating to the compensation and bonding of a custodian, shall be part of the
Enforcement Costs.


 


Section 3.15                                Business Names; Locations.


 


Debtor will notify Lender not less than
thirty (30) days prior to (a) any change in the name under which Debtor
conducts its business, (b) any change of the location of the chief
executive office of Debtor, and (c) the opening of any new place of
business or the closing of any existing place of business, and (d) any
change in the location of the places where the Collateral, or any part thereof,
or the books and records, or any part thereof, are kept other than as permitted
by Section 6.2.14 of the Financing Agreement.


 


ARTICLE IV


NEGATIVE COVENANTS OF DEBTOR


 


Until payment in full and the performance of
all of the Obligations, without the prior written consent of the Lender, the
Debtor will not directly or indirectly:


 


Section 4.1                                      Liens; Confessed Judgment.


 


(a) Create, incur, assume or suffer to
exist any Lien upon any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens, (b) assume or suffer to
exist any provision in any instrument or other document for confession of
judgment, cognovit or other similar right or remedy, (c) allow or suffer
to exist any Permitted Liens to be superior to Lender’s Liens on the
Collateral, (d) enter into any contracts for the consignment of goods,
will not execute or suffer the filing of any financing statements or the
posting of any signs giving notice of consignments, and will not, as a material
part of its business, engage in the sale of goods belonging to others, and (e) allow
or suffer to exist the failure of any Lien described herein to attach to,
and/or remain at all times perfected on, any of the Collateral.


 


9

















 


Section 4.2                                      ERISA Compliance.


 


And will not allow any Commonly Controlled
Entity to:  (a) engage in or permit
any “prohibited transaction” (as defined in ERISA); (b) cause any “accumulated
funding deficiency” as defined in ERISA and/or the Internal Revenue Code; (c) terminate
any pension plan in a manner which could result in the imposition of a lien on
the property of Debtor pursuant to ERISA; (d) terminate or consent to the
termination of any Multi-employer Plan; or (e) incur a complete or partial
withdrawal with respect to any Multi-employer Plan.


 


Section 4.3                                      Prohibition on Hazardous Materials.


 


Debtor shall not place, manufacture or store
or permit to be placed, manufactured or stored any Hazardous Materials on any
property owned, operated or controlled by Debtor or for which Debtor is
responsible other than Hazardous Materials placed or stored on such property in
accordance with applicable Laws in the ordinary course of Debtor’s business
expressly described in this Agreement.


 


Section 4.4                                      Transfer of Collateral.


 


Transfer, or permit the transfer, to a
location not listed on the Collateral Disclosure List, of the books and records
related to any of the Collateral or of any of the Collateral having an
aggregate value in excess of Five Hundred Thousand Dollars ($500,000) except
for (a) Collateral in transit, (b) Collateral maintained at a
temporary location for a period not to exceed six (6) months or (c) Collateral
located at a customer’s place of business which is offered for sale in the
ordinary course of business; provided, however, after the occurrence and
continuance of an Event of Default, Debtor will promptly disclose the locations
of all of the Collateral to Lender.


 


Section 4.5                                      Sale and Leaseback.


 


Directly or indirectly enter into any
arrangement to sell or transfer all or any substantial part of its fixed assets
then owned by it and thereupon or within one year thereafter rent or lease the
assets so sold or transferred.


 


Section 4.6                                      Sale of Accounts.


 


Except in the ordinary course of its
business, sell, discount, allow credits or allowances, transfer, assign, extend
the time for payment on, convey, lease, assign, transfer or otherwise dispose
of the Collateral, except, prior to an Event of Default, dispositions expressly
permitted elsewhere in this Agreement, the sale of Inventory in the ordinary
course of business.


 


ARTICLE V


EVENTS OF DEFAULT


 


The occurrence of one or more of the
following events shall be “Events of Default” under this Agreement, and the
terms “Event of Default” or “default” shall mean, whenever they are used in
this Agreement, any one or more of the following events:


 


10






 












 


Section 5.1                                      Failure to Pay.


 


The Debtor shall fail to pay
or perform any of the Obligations, when and as the same shall become due and
payable under the Guaranty.


 


Section 5.2                                      Breach of Representations and Warranties.


 


Any representation or
warranty made in this Agreement or in any report, statement, schedule,
certificate, opinion (including any opinion of counsel for Debtor), financial
statement or other document furnished in connection with this Agreement, any of
the other Financing Documents, or the Obligations, shall prove to have been
false or misleading when made (or, if applicable, when reaffirmed) in any
material respect.


 


Section 5.3                                      Failure to Comply with Covenants.


 


The failure of Debtor to
perform, observe or comply with any covenant, condition or agreement contained
in Sections Section 3.2, 3.3, 3.6 or 3.8 hereof or in Section 4
hereof.


 


Section 5.4                                      Other Defaults.


 


The failure of Debtor to
perform, observe or comply with any covenant, condition or agreement contained
in this Agreement other than those set forth in Sections 5.1, 5.2, or 5.3
above, which default shall remain un-remedied for thirty (30) days after
written notice thereof to the Debtor by the Lender.


 


Section 5.5                                      Default Under Other Financing Documents.


 


A default shall occur under
any of the other Financing Documents, and such default is not cured within any
applicable grace period provided therein.


 


Section 5.6                                      Receiver; Bankruptcy.


 


Debtor shall (a) apply
for or consent to the appointment of a receiver, trustee or liquidator of itself
or any of its property, (b) admit in writing its inability to pay its
debts as they mature, (c) make a general assignment for the benefit of
creditors, (d) be adjudicated a bankrupt or insolvent, (e) file a
voluntary petition in bankruptcy or a petition or an answer seeking or
consenting to reorganization or an arrangement with creditors or to take
advantage of any bankruptcy, reorganization, insolvency, readjustment of debt,
dissolution or liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding under any such
law, or take corporate action for the purposes of effecting any of the
foregoing, (f) by any act indicate its consent to, approval of or
acquiescence in any such proceeding or the appointment of any receiver of or
trustee for any of its property, or suffer any such receivership, trusteeship
or proceeding to continue undischarged for a period of sixty (60) days, or (g) by
any act indicate its consent to, approval of or acquiescence in any order,
judgment or decree by any court of competent jurisdiction or any Governmental
Authority enjoining or otherwise prohibiting the operation of a material
portion of Debtor’s business or the use or disposition of a material portion of
Debtor’s assets.


 


11

















 


Section 5.7                                      Involuntary Bankruptcy, etc.


 


(a) An order for relief
shall be entered in any involuntary case brought against Debtor under the
Bankruptcy Code, or (b) any such case shall be commenced against Debtor
and shall not be dismissed within sixty (60) days after the filing of the
petition, or (c) an order, judgment or decree under any other Law is
entered by any court of competent jurisdiction or by any other Governmental
Authority on the application of a Governmental Authority or of a Person other
than Debtor (i) adjudicating Debtor bankrupt or insolvent, or (ii) appointing
a receiver, trustee or liquidator of Debtor or of a material portion of Debtor’s
assets, or (iii) enjoining, prohibiting or otherwise limiting the
operation of a material portion of Debtor’s business or the use or disposition
of a material portion of Debtor’s assets, and such order, judgment or decree
continues unstayed and in effect for a period of thirty (30) days from the date
entered.


 


Section 5.8                                      Judgment.


 


Unless adequately insured in
the opinion of Lender, the entry of a final judgment for the payment of money
involving more than Two Million Dollars ($2,000,000) against Debtor, and the
failure by Debtor to discharge the same, or cause it to be discharged, within
thirty (30) days from the date of the order, decree or process under which or
pursuant to which such judgment was entered, or to secure a stay of execution
pending appeal of such judgment.


 


Section 5.9                                      Execution; Attachment.


 


Any execution or attachment
shall be levied against Collateral having an aggregate value in excess of Five
Hundred Thousand Dollars ($500,000), or any part thereof, and such execution or
attachment shall not be set aside, discharged or stayed within thirty (30) days
after the same shall have been levied.


 


Section 5.10                                Debarment or Suspension.


 


Debtor is debarred or
suspended, whether temporarily or permanently, by the United States of America
or any department, agency or instrumentality thereof.


 


Section 5.11                                Liquidation, Termination or Dissolution.


 


Debtor shall liquidate,
dissolve or terminate its existence or shall suspend or terminate a substantial
portion of its business operations.


 


Section 5.12                                Default Under Other Borrowings.


 


Default shall be made with
respect to any evidence of indebtedness or liability for borrowed money (other
than under the Credit Facilities and other unsecured Indebtedness of up to One
Million Dollars ($1,000,000)) if the effect of such default is to accelerate the
maturity of such evidence of indebtedness or liability or to permit the holder
or obligee thereof to cause any indebtedness to become due prior to its stated
maturity.


 


12

















 


ARTICLE VI


RIGHTS AND REMEDIES UPON DEFAULT


 


Section 6.1                                      Demand; Acceleration.


 


Upon the occurrence of an
Event of Default, and in every such event and at any time thereafter, the
Lender may declare the Obligations due and payable, without presentment,
demand, protest, or any notice of any kind, all of which are hereby expressly
waived, anything contained herein or in any of the other Financing Documents to
the contrary notwithstanding.


 


Section 6.2                                      Specific Rights With Regard to Collateral.


 


In addition to all other
rights and remedies provided hereunder or as shall exist at law or in equity
from time to time, the Lender may, without notice to the Debtor:


 


(a)                                  request any account debtor obligated on
any of the Accounts to make payments thereon directly to the Lender, with the
Lender taking control of the cash and non-cash proceeds thereof;


 


(b)                                 compromise, extend or renew any of the
Collateral or deal with the same as it may deem advisable;


 


(c)                                  make exchanges, substitutions or
surrenders of all or any part of the Collateral;


 


(d)                                 remove from any of the Debtor’s place of
business all books, records, ledger sheets, correspondence, invoices and
documents, relating to or evidencing any of the Collateral or without cost or
expense to the Lender, make such use of the Debtor’s place(s) of business
as may be reasonably necessary to administer, control and collect the
Collateral;


 


(e)                                  repair, alter or supply goods if
necessary to fulfill in whole or in part the purchase order of any account
debtor;


 


(f)                                    demand, collect, receipt for and give
renewals, extensions, discharges and releases of any of the Collateral;


 


(g)                                 institute and prosecute legal and
equitable proceedings to enforce collection of, or realize upon, any of the
Collateral;


 


(h)                                 settle, renew, extend, compromise,
compound, exchange or adjust claims in respect of any of the Collateral or any
legal proceedings brought in respect thereof;


 


(i)                                     endorse the name of the Debtor upon any
items of payment relating to the Collateral or on any Proof of Claim in
Bankruptcy against an account debtor;


 


(j)                                     clear Inventory through customs in Lender’s
or Debtor’s name and to sign and deliver to customs officials powers of
attorney in Debtor’s name for such purpose; and


 


13

















 


(k)                                  take any other
action necessary or beneficial to realize upon or dispose of the Collateral or
to carry out the terms of this Agreement.


 


Section 6.3                                      Application of Proceeds.


 


Any proceeds of sale or
other disposition of the Collateral will be applied by Lender to the payment
first of any and all Enforcement Costs, and any balance of such proceeds will
be applied to the Obligations in such order and manner as Lender shall
determine.  If the sale or other
disposition of the Collateral fails to fully satisfy the Obligations, Debtor
and Borrower shall remain liable to Lender for any deficiency.


 


Section 6.4                                      Performance by Lender.


 


If the Debtor shall fail to
pay the Obligations or otherwise fail to perform, observe or comply with any of
the conditions, covenants, terms, stipulations or agreements contained in this
Agreement or any of the other Financing Documents, the Lender without notice to
or demand upon Debtor and without waiving or releasing any of the Obligations
or any Default or Event of Default, may (but shall be under no obligation to)
at any time thereafter make such payment or perform such act for the account
and at the expense of Debtor, and may enter upon the premises of Debtor for
that purpose and take all such action thereon as Lender may consider necessary
or appropriate for such purpose and Debtor hereby irrevocably appoints Lender
as its attorney-in-fact to do so, with power of substitution, in the name of
Lender, in the name of Debtor or otherwise, for the use and benefit of Lender,
but at the cost and expense of Debtor and without notice to Debtor.  All sums so paid or advanced by Lender
together with interest thereon from the date of payment, advance or incurring
until paid in full at the Post-Default Rate and all costs and expenses, shall
be paid by Debtor to Lender on demand, and shall constitute and become a part
of the Obligations.


 


Section 6.5                                      Uniform Commercial Code.


 


Lender
shall have all of the rights and remedies of a secured party under the
applicable Uniform Commercial Code and other applicable Laws.  Upon demand by Lender, Debtor shall assemble
the Collateral and make it available to Lender, at a place designated by
Lender.  Lender or its agents may without
notice from time to time enter upon Debtor’s premises to take possession of the
Collateral, to remove it, to render it unusable, to process it or otherwise
prepare it for sale, or to sell or otherwise dispose of it.


 


Any
written notice of the sale, disposition or other intended action by Lender with
respect to the Collateral which is sent by regular mail, postage prepaid, to
Debtor at the address set forth in Section 7.1 (Notices), or such other
address of Debtor which may from time to time be shown on Lender’s records, at
least ten (10) days prior to such sale, disposition or other action, shall
constitute commercially reasonable notice to Debtor.  Lender may alternatively or additionally give
such notice in any other commercially reasonable manner.  Nothing in this Agreement shall require
Lender to give any notice not required by applicable Laws.


 


If
any consent, approval, or authorization of any state, municipal or other
Governmental Authority or of any other Person or of any Person having any
interest therein, should be necessary to effectuate any sale or other
disposition of the Collateral, Debtor agrees to execute 


 


14

















 


all
such applications and other instruments, and to take all other action, as may
be required in connection with securing any such consent, approval or
authorization.


 


Debtor recognizes that Lender
may be unable to effect a public sale of all or a part of the Collateral
consisting of Investment Property by reason of certain prohibitions contained
in the Securities Act of 1933, as amended, and other applicable Federal and
state Laws.  Lender may, therefore, in
its discretion, take such steps as it may deem appropriate to comply with such
Laws and may, for example, at any sale of the Collateral consisting of
securities restrict the prospective bidders or purchasers as to their number,
nature of business and investment intention, including, without limitation, a
requirement that the Persons making such purchases represent and agree to the
satisfaction of Lender that they are purchasing such securities for their
account, for investment, and not with a view to the distribution or resale of
any thereof.  Debtor covenants and agrees
to do or cause to be done promptly all such acts and things as Lender may
request from time to time and as may be necessary to offer and/or sell the
securities or any part thereof in a manner which is valid and binding and in
conformance with all applicable Laws.  
Upon any such sale or disposition, Lender shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral consisting
of securities so sold.


 


Section 6.6                                      Other Remedies.


 


Lender may from time to time
proceed to protect or enforce its rights by an action or actions at law or in
equity or by any other appropriate proceeding, whether for the specific
performance of any of the covenants contained in this Agreement or in any of
the other Financing Documents, or for an injunction against the violation of
any of the terms of this Agreement or any of the other Financing Documents, or
in aid of the exercise or execution of any right, remedy or power granted in
this Agreement, the Financing Documents, and/or applicable Laws.  Lender is authorized to offset and apply to
all or any part of the Obligations all moneys, credits and other property of
any nature whatsoever of Debtor now or at any time hereafter in the possession
of, in transit to or from, under the control or custody of, or on deposit with,
Lender or any Affiliate of Lender.


 


ARTICLE VII


MISCELLANEOUS


 


Section 7.1                                      Notices.


 


All notices, certificates or
other communications hereunder shall be given as set forth in Section 4.1
of the Guaranty.


 


Section 7.2                                      Consents and Approvals.


 


If any consent, approval, or
authorization of any state, municipal or other governmental department, agency
or authority or of any person, or any person, corporation, partnership or other
entity having any interest therein, should be necessary to effectuate any sale
or other disposition of the Collateral, the Debtor agrees to execute all such
applications and other instruments, and to take all other action, as may be
required in connection with securing any such consent, approval or
authorization.


 


15

















 


Section 7.3                                      Remedies, Etc. Cumulative.


 


Each right, power and remedy
of the Lender as provided for in this Agreement or in any of the other
Financing Documents or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in
addition to every other right, power or remedy provided for in this Agreement
or in any of the other Financing Documents or now or hereafter existing at law
or in equity, by statute or otherwise, and the exercise or beginning of the
exercise by the Lender of any one or more of such rights, powers or remedies
shall not preclude the simultaneous or later exercise by the Lender of any or
all such other rights, powers or remedies. 
In order to entitle the Lender to exercise any remedy reserved to it
herein, it shall not be necessary to give any notice, other than such notice as
may be expressly required in this Agreement.


 


Section 7.4                                      No Waiver of Rights by the Lender.


 


No failure or delay by the
Lender to insist upon the strict performance of any term, condition, covenant
or agreement of this Agreement or of any of the other Financing Documents, or
to exercise any right, power or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, condition, covenant or agreement or of
any such breach or preclude the Lender from exercising any such right, power or
remedy at any later time or times.  By
accepting payment after the due date of any amount payable under this Agreement
or under any of the other Financing Documents, the Lender shall not be deemed
to waive the right either to require prompt payment when due of all other
amounts payable under this Agreement or under any of the other Financing
Documents, or to declare a default for failure to effect such prompt payment of
any such other amount.


 


Section 7.5                                      Entire Agreement.


 


The Financing Documents
shall completely and fully supersede all other agreements, both written and
oral, between the Lender and the Debtor relating to the Obligations.  Neither the Lender nor the Debtor shall
hereafter have any rights under such prior agreements but shall look solely to
the Financing Documents for definition and determination of all of their
respective rights, liabilities and responsibilities relating to the
Obligations.


 


Section 7.6                                      Survival of Agreement; Successors and
Assigns.


 


All
covenants, agreements, representations and warranties made by the Debtor herein
and in any certificate, in the Financing Documents and in any other instruments
or documents delivered pursuant hereto shall survive the making by the Lender
of the Credit Facilities and the execution and delivery of the Revolving Credit
Note, and shall continue in full force and effect so long as any of the
Obligations are outstanding and unpaid. 
Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party; and all covenants, promises and agreements by or on behalf of the
Debtor, which are contained in this Agreement shall inure to the benefit of the
successors and assigns of the Lender, and all covenants, promises and
agreements by or on behalf of the Lender which are contained in this Agreement
shall inure to the benefit of the permitted successors and permitted 


 


16

















 


assigns of the Debtor, but this Agreement may not be assigned by the
Debtor without the prior written consent of the Lender.


 


Section 7.7                                      Enforcement Costs.


 


Debtor shall pay to Lender
on demand all Enforcement Costs, together with interest thereon from the date
incurred or advanced until paid in full at a per annum rate of interest equal at
all times to the Post-Default Rate. 
Enforcement Costs shall be immediately due and payable at the time
advanced or incurred, whichever is earlier. 
Without implying any limitation on the foregoing, Debtor shall pay, as
part of the Enforcement Costs, upon demand any and all stamp and other Taxes
and fees payable or determined to be payable in connection with the execution
and delivery of this Agreement and the other Financing Documents and to save
Lender harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay any Taxes or fees
referred to in this Section.  The
provisions of this Section shall survive the execution and delivery of
this Agreement and the repayment of the Obligations.


 


Section 7.8                                      Counterparts.


 


This Agreement may be
executed in any number of counterparts all of which together shall constitute a
single instrument.


 


Section 7.9                                      Governing Law.


 


(a)                                  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE, WITHOUT REGARD TO ITS CONFLICTS OF
LAW PRINCIPLES INSOFAR AS SUCH PRINCIPLES WOULD DEFER TO THE SUBSTANTIVE LAWS
OF SOME OTHER JURISDICTION.


 


(b)                                 EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
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
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  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.


 


(c)                                  EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS 


 


17

















 


AGREEMENT OR ANY OTHER
FINANCING DOCUMENT IN ANY COURT REFERRED TO IN SECTION 7.9(b).  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


Section 7.10                                Modifications.


 


No modification or waiver of
any provision of this Agreement, nor consent to any departure by the Debtor
therefrom, shall in any event be effective unless the same shall be in writing,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. 
No notice to or demand on the Debtor in any case shall entitle the
Debtor to any other or further notice or demand in the same, similar or other
circumstance.


 


Section 7.11                                Illegality.


 


If fulfillment of any
provision hereof or any transaction related hereto or to any of the other
Financing Documents, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by law, then ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity; and if any clause or provisions herein contained other than the
provisions hereof pertaining to repayment of the Obligations operates or would
prospectively operate to invalidate this Agreement in whole or in part, then
such clause or provision only shall be void, as though not herein contained,
and the remainder of this Agreement shall remain operative and in full force
and effect; and if such provision pertains to repayment of the Obligations,
then, at the option of the Lender, all of the Obligations of the Debtor to the
Lender shall become immediately due and payable.


 


Section 7.12                                Gender, Etc.


 


Whenever used herein, the
singular number shall include the plural, the plural the singular and the use
of the masculine, feminine or neuter gender shall include all genders.


 


Section 7.13                                Headings.


 


The headings in this
Agreement are for convenience only and shall not limit or otherwise affect any
of the terms hereof.


 


Section 7.14                                Waiver of Trial by Jury.


 


THE DEBTOR AND THE LENDER
HEREBY JOINTLY AND SEVERALLY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
WHICH THE DEBTOR AND THE LENDER MAY BE PARTIES, ARISING OUT OF OR IN ANY
WAY PERTAINING TO (A) THIS AGREEMENT, (B) ANY OF THE FINANCING
DOCUMENTS, OR (C) THE COLLATERAL. 
THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST
ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES
WHO ARE NOT PARTIES TO THIS AGREEMENT.


 


18

















 


THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY THE DEBTOR AND THE LENDER, AND THE DEBTOR AND
THE LENDER HEREBY REPRESENT THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE
BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY
WAY MODIFY OR NULLIFY ITS EFFECT.  THE
DEBTOR AND THE LENDER FURTHER REPRESENT THAT THEY HAVE BEEN REPRESENTED IN THE
SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.


 


Section 7.15                                Liability of the Lender.


 


Debtor hereby agrees that
Lender shall not be chargeable for any negligence, mistake, act or omission of
any accountant, examiner, agency or attorney employed by Lender in making
examinations, investigations or collections, or otherwise in perfecting,
maintaining, protecting or realizing upon any lien or security interest or any
other interest in the Collateral or other security for the Obligations.


 


By inspecting the Collateral
or any other properties of Debtor or by accepting or approving anything
required to be observed, performed or fulfilled by Debtor or to be given to
Lender pursuant to this Agreement or any of the other Financing Documents,
Lender shall not be deemed to have warranted or represented the condition,
sufficiency, legality, effectiveness or legal effect of the same, and such
acceptance or approval shall not constitute any warranty or representation with
respect thereto by Lender.


 


[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]


 


19

















 


IN WITNESS WHEREOF, the
Debtor has signed this Agreement on the day and year first above written.


 


	
   

  	
  GOVDEALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James M. Rallo

  
	
   

  	
   

  	
  Name:

  	
  James M. Rallo

  
	
   

  	
   

  	
  Title:

  	
  Vice President, Chief
  Financial

  
	
   

  	
   

  	
   

  	
  Officer &
  Treasurer

  



 


[Signature Page to
Security Agreement]