AGREEMENT, dated as of July 30, 2012 (as amended, supplemented or otherwise modified from time to time in accordance with the provisions
hereof, this "Agreement"), made by and among Shoreline Memory Inc., an Ontario
corporation ("Shoreline"), and Shoreline Capital Management Ltd., an Ontario
corporation (“Capital”), (Capital together with Shoreline, collectively the “Grantor”) in
favor of Dataram Corporation, a New Jersey corporation (the “Secured Party”), under that certain Convertible
Senior Promissory Note (the “Senior Note”) dated as of the date hereof. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to such terms in the Senior Note.
to the Senior Note, the Secured Party has made Loans and other Advances to the Grantor (the "Loans"),
evidenced by the Senior Note (as amended, supplemented or otherwise modified from time to time) made by the Grantor and payable
to the order of the Secured Party; and
is a condition to the obligations of the Secured Party to make the Loans under the Senior Note that the Grantor (a) grant a first
priority security interest in the Collateral (as defined below) in favor of the Secured Party, to secure the payment and performance
of all of the Secured Obligations and (b) execute and deliver this Agreement;
in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
otherwise specified herein, all references to Sections and Schedules herein are to Sections of this Agreement.
otherwise defined herein, terms used herein that are defined in the PPSA shall have the meanings assigned to them in the PPSA.
purposes of this Agreement, the following terms shall have the following meanings:
the meaning set forth in Section 2
of Default" has the meaning set forth in the Senior Note.
Priority" means, with respect to any lien and security interest purported to be created in any Collateral
pursuant to this Agreement, such lien and security interest is the most senior lien and security interest to which such Collateral
is subject, excluding Permitted Liens (which Permitted Liens may rank pari passu to the First Priority lien and security interest).
Lien” means any one or more of the following with respect to the Collateral:
for taxes, assessments or governmental charges or levies not at the time due and delinquent or the validity of which are being
contested in good faith by proper legal proceedings;
lien of any judgment rendered or claim filed which is being contested in good faith by proper legal proceedings;
or inchoate liens and charges incidental to construction or current operations which have not at such time been filed pursuant
to law or which relate to obligations not yet due or delinquent;
lien or security interest resulting from the deposit of cash or securities in connection with contracts, tenders or expropriation
proceedings, or to secure workers’ compensation, surety or appeal bonds, costs of litigation when required by law and public
and statutory obligations, liens or claims incidental to construction, mechanics’, warehouseman’s, carriers’
and other similar liens;
given to a public utility or any municipality or governmental or other public authority when required by such utility or other
authority in connection with the operations of the Grantor, all in the ordinary course of its business;
lien or security interest on any inventory (and Proceeds thereof) hereafter or previously acquired by the Grantor granted to secure
the indebtedness of the Grantor for the acquisition price of such inventory (including any costs of delivery and installation),
or the repayment of moneys borrowed to pay such acquisition price, or to secure any extension, renewal or replacement of such indebtedness;
lien or security interest on any receivables of the Grantor (and Proceeds thereof) arising out of the sale of any inventory; or
other lien or security interest approved in writing by the Secured Party.
the Personal Property Security Act (Ontario) together with any regulations thereunder, in each case as in effect from time to time.
References to sections of the PPSA shall be construed to also refer to any successor sections.
Certificate" has the meaning set forth in Section 7.
"proceeds" as such term is defined in the PPSA and, in any event, shall include, without limitation, all dividends or
other income from the Collateral, collections thereon or distributions with respect thereto.
Obligations" has the meaning set forth in Section 3
Documents" means this Agreement, the Senior Note, Master Services Agreement, Stock Purchase Agreement, Shareholders
Agreement, Warrant Agreement and all other documents and agreements executed in connection with the transactions contemplated thereunder.
of Security Interest. The Grantor hereby pledges and grants to the Secured Party, for its benefit and hereby creates a continuing
First Priority lien and security interest in favor of the Secured Party, for its benefit in and to all of its right, title and
interest in and to all property and rights of the Grantor, wherever located, whether now existing or hereafter from time to time
arising or acquired (collectively, the "Collateral"), including but not limited
to the following:
of its Accounts;
Real Property and Fixtures;
of its Commercial Tort Claims;
of its Deposit Accounts;
of its General Intangibles and all recourse, indemnification, repurchase and other rights of the Grantor thereunder);
Goods, including, without limitation, Inventory and Equipment;
of its Investment Property (including all of its Securities and Securities Accounts);
of letters of credit, Letter-of-Credit Rights, Instruments, Promissory Notes and Chattel Paper (including electronic chattel paper
and tangible Chattel Paper);
contracts, contract rights, Chattel Paper, Instruments and Documents of the Grantor;
rights, claims or choses in action of the Grantor;
of the Grantor’s interest in insurance policies and bonds held by the Grantor (whether singly or jointly);
money or other assets of the Grantor that now or hereafter come into the possession, custody, or control of the Secured Parties;
of the Grantor’s books and records (including customer lists, credit files, computer print outs, and other computer materials
and records of the Grantor) pertaining to the Collateral;
accessions to, substitutions for and all replacements, products and cash and non-cash proceeds of (a) through (m) above, including
proceeds of and unearned premiums with respect to insurance policies insuring any of the Collateral; and
Proceeds and products, whether tangible or intangible, of any of the foregoing, including proceeds of insurance covering any or
all of the foregoing, and any and all Accounts, books and records, Deposit Accounts, Equipment, Fixtures, General Intangibles,
Inventory, Investment Property, Negotiable Collateral, Supporting Obligations, money, or other real or personal, tangible or intangible
Property resulting from the sale, exchange, collection, or other disposition of any of the foregoing, or any portion thereof or
interest therein, and the proceeds thereof; together with all assets and interests in assets and proceeds thereof now owned or
hereafter acquired by the Secured Parties in or upon which a lien is granted under any of the Transaction Documents.
Obligations. The Secured Parties’ security interest in the Collateral shall secure the payment and performance of the
following (all such obligations, liabilities, sums and expenses set forth in this Section 3
being herein collectively called the "Secured Obligations"):
obligations of the Grantor from time to time arising under the Senior Note, this Agreement or otherwise with respect to the due
and punctual payment of (i) the principal of and premium, if any, and interest on the Loans (including interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable
in such proceeding), when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise
and (ii) all other monetary obligations, including fees, costs, attorneys' fees and disbursements, reimbursement obligations, expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable
in such proceeding), of the Grantor under the Senior Note or this Agreement; and
other agreements, duties, indebtedness, obligations and liabilities of any kind of the Grantor under the Senior Note or this Agreement,
in each case whether now existing or hereafter arising, whether evidenced by a note or other writing, whether allowed in any bankruptcy,
insolvency, receivership or other similar proceeding, whether arising from an extension of credit, issuance of a letter of credit,
acceptance, loan, guaranty, indemnification or otherwise, and whether direct or indirect, absolute or contingent, due or to become
due, primary or secondary, or joint or several.
Financing: Notwithstanding any other provision of this agreement or the Senior Note, the Senior Note and this agreement and
the lien and security interest created under this agreement shall not prevent the Grantor from granting a Permitted Lien described
in paragraphs (f) or (g) of the definition of Permitted Lien (a “Permitted Lender’s Lien”) or from borrowing
under any facility secured by that Permitted Lender’s Lien, provided that Grantor obtains the prior written consent of the
Secured Party which consent shall not be unreasonably withheld. Any such Permitted Lien, whether given before or after the execution
and delivery of this agreement, shall rank pari passu or subordinate to the lien and security interest created under this agreement.
If requested by any holder of a Permitted Lender’s Lien, the Secured Party agrees to give written confirmation that the lien
and security interest created under this agreement is pari passu to such Permitted Lender’s Lien, in such form as may reasonably
be requested by the holder of the Permitted Lender’s Lien.
of Security Interest and Further Assurances.
Grantor shall, from time to time, as may be required by the Secured Parties with respect to all Collateral, take all actions as
may be requested by the Purchaser to perfect the security interest of the Secured Party in the Collateral, including, without limitation,
with respect to all Collateral over which control may be obtained within the meaning of the PPSA, section 201 of the federal Electronic
Signatures in Global and National Commerce Act and, as the case may be, section 16 of the Uniform Electronic Transactions Act,
as applicable. The Grantor shall take all actions as may be requested from time to time by the Secured Party so that control of
such Collateral is obtained and at all times held by the Secured Party, for its benefit. All of the foregoing shall be at the sole
cost and expense of the Grantor.
Grantor hereby irrevocably authorizes the Secured Party at any time and from time to time to file in any relevant jurisdiction
any financing statements and amendments thereto that contain the information required by the PPSA of each applicable jurisdiction
for the filing of any financing statement or amendment relating to the Collateral, including any financing or continuation statements
or other documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted
by the Grantor hereunder, without the signature of the Grantor where permitted by law, including the filing of a financing statement
describing the Collateral as all assets now owned or hereafter acquired by the Grantor, or words of similar effect. The Grantor
agrees to provide all information required by the Secured Party pursuant to this Section promptly to the Secured Party.
Grantor hereby further authorizes the Secured Party to file with the United States Patent and Trademark Office and the United States
Copyright Office (and any successor office and any similar office in any state of the United States or in any other country) this
Agreement and other documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest
granted by the Grantor hereunder, without the signature of the Grantor where permitted by law.
to the requirements of anyone who holds a Permitted Lien as those requirements relate to the security granted under the Permitted
Lien, if the Grantor shall at any time hold or acquire any certificated securities, Promissory Notes, tangible Chattel Paper, negotiable
documents or warehouse receipts relating to the Collateral, the Grantor shall indorse, assign and deliver the same to the Secured
Party, accompanied by such instruments of transfer or assignment duly executed in blank as the Secured Party may from time to time
to the requirements of anyone who holds a Permitted Lien as those requirements relate to the security granted under the Permitted
Lien, if any Collateral is at any time in the possession of a bailee, the Grantor shall promptly notify the Secured Party thereof
and, at its request and option, shall promptly obtain an acknowledgment from the bailee, in form and substance satisfactory to
the Secured Party, that the bailee holds such Collateral for the benefit of the Secured Party and the bailee agrees to comply,
without further consent of the Grantor, at any time with instructions of the Secured Party as to such Collateral.
Grantor agrees that at any time and from time to time, at the expense of the Grantor, the Grantor will promptly execute and deliver
all further instruments and documents, obtain such agreements from third parties, and take all further action, that may be necessary
or desirable, or that the Secured Party may reasonably request, in order to perfect and protect any security interest granted hereby
or to enable the Secured Party to exercise and enforce its rights and remedies hereunder, for its benefit, or under any other agreement
with respect to any Collateral.
Dispositions: Until an Event of Default has occurred and the lien and security interest created under this agreement shall
have become enforceable, the Grantor shall be entitled to:
and, where necessary, enforce the collection of all amounts due or to become due to the Debtor under any account; and
lease, license, consign or otherwise dispose of inventory or of any obsolete, worn out, damaged or otherwise unsuitable equipment
forming part of the Collateral, in the ordinary course of the Grantor’s business and for the purpose of carrying on the same.
and Warranties. The Grantor represents and warrants as follows:
has previously delivered to the Purchaser a certificate signed by the Grantor and entitled "Perfection Certificate" ("Perfection
Certificate"), and that: (i) the Grantor's exact legal name is that indicated on the Perfection Certificate and
on the signature page hereof, (ii) the Grantor is an organization of the type, and is organized in the jurisdiction, set forth
in the Perfection Certificate, (iii) the Perfection Certificate accurately sets forth the Grantor's organizational identification
number (or accurately states that the Grantor has none), the Grantor's place of business (or, if more than one, its chief executive
office), and its mailing address, (iv) all other information set forth on the Perfection Certificate relating to the Grantor is
accurate and complete and (v) there has been no change in any such information since the date on which the Perfection Certificate
was signed by the Grantor.
information set forth on the Perfection Certificate relating to the Collateral is accurate and complete and there has been no change
in any such information since the date on which the Perfection Certificate was signed by the Grantor.
Grantor has at all times operated its business in compliance with all applicable provisions of the federal Fair Labor Standards
Act, as amended, and with all applicable provisions of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances.
the time the Collateral becomes subject to the lien and security interest created by this Agreement, the Grantor will be the sole,
direct, legal and beneficial owner thereof, free and clear of any lien, security interest, encumbrance, claim, option or right
of others except for the security interest created by this Agreement or any Permitted Lien.
pledge of the Collateral pursuant to this Agreement creates a valid and perfected First Priority security interest in the Collateral,
securing the payment and performance when due of the Secured Obligations.
has full power, authority and legal right to borrow the Loans and pledge the Collateral pursuant to this Agreement.
of this Agreement and the Senior Note has been duly authorized, executed and delivered by the Grantor and constitutes a legal,
valid and binding obligation of the Grantor enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights generally and subject to equitable principles (regardless
of whether enforcement is sought in equity or at law).
authorization, approval, or other action by, and no notice to or filing with, any governmental authority or regulatory body is
required for the borrowing of the Loans and the pledge by the Grantor of the Collateral pursuant to this Agreement or for the execution
and delivery of the Senior Note and this Agreement by the Grantor or the performance by the Grantor of its obligations thereunder.
execution and delivery of the Senior Note and this Agreement by the Grantor and the performance by the Grantor of its obligations
thereunder, will not violate any provision of any applicable law or regulation or any order, judgment, writ, award or decree of
any court, arbitrator or governmental authority, domestic or foreign, applicable to the Grantor or any of its property, or the
organizational or governing documents of the Grantor or any agreement or instrument to which the Grantor is party or by which it
or its property is bound.
Grantor has taken all action required on its part for control (as defined in the PPSA, section 201 of the federal Electronic Signatures
in Global and National Commerce Act and, as the case may be, section 16 of the Uniform Electronic Transactions Act, as applicable)
to have been obtained by the Secured Party, for its benefit, over all Collateral with respect to which such control may be obtained
pursuant to the PPSA. No person other than the Secured Party has control or possession of all or any part of the Collateral.
Distributions and Receivables.
Secured Party agrees that unless an Event of Default shall have occurred and be continuing, the Grantor may, to the extent the
Grantor has such right as a holder of the Collateral consisting of securities, other Equity Interests or indebtedness owed by any
obligor, vote and give consents, ratifications and waivers with respect thereto, except to the extent that, in the Secured Party's
reasonable judgment, any such vote, consent, ratification or waiver could detract from the value thereof as Collateral or which
could be inconsistent with or result in any violation of any provision of the Senior Note or this Agreement, and from time to time,
upon request from the Grantor, the Secured Party shall deliver to the Grantor suitable proxies so that the Grantor may cast such
votes, consents, ratifications and waivers.
Secured Party agrees that the Grantor may, unless an Event of Default shall have occurred and be continuing, receive and retain
all dividends and other distributions with respect to the Collateral consisting of securities, other Equity Interests or indebtedness
owed by any obligor.
any Event of Default shall have occurred and be continuing, the Secured Party may, or at its request, the Grantor shall, notify
account debtors and other persons obligated on any of the Collateral of the security interest of the Secured Party in any account,
chattel paper, general intangible, instrument or other Collateral and that payment thereof is to be made directly to the Secured
The Grantor covenants as follows:
Grantor will not, without providing at least thirty (30) days' prior written notice to the Secured Party, change its legal name,
identity, type of organization, jurisdiction of organization, corporate structure, location of its chief executive office or its
principal place of business or its organizational identification number. The Grantor will, prior to any change described in the
preceding sentence, take all actions reasonably requested by the Secured Party to maintain the perfection and priority of the Secured
Parties' security interest in the Collateral.
Collateral, to the extent not delivered to the Secured Party pursuant to Section 5, will be kept at those locations
listed on the Perfection Certificate and the Grantor will not remove the Collateral from such locations without providing at least
thirty (30) days' prior written notice to the Purchaser. The Grantor will, prior to any change described in the preceding sentence,
take all actions reasonably required by the Secured Party to maintain the perfection and priority of the Secured Party’s
security interest in the Collateral.
Grantor shall, at its own cost and expense, defend title to the Collateral and the First Priority lien and security interest of
the Secured Party therein against the claim of any person claiming against or through the Grantor and shall maintain and preserve
such perfected First Priority security interest for so long as this Agreement shall remain in effect.
Grantor will not sell, offer to sell, dispose of, convey, assign or otherwise transfer, grant any option with respect to, restrict,
or grant, create, permit or suffer to exist any mortgage, pledge, lien, security interest, option, right of first offer, encumbrance
or other restriction or limitation of any nature whatsoever on, any of the Collateral or any interest therein, except as expressly
provided for in the Senior Note or this agreement or with the prior written consent of the Secured Party.
Grantor will keep the Collateral in good order and repair and will not use the same in violation of law or any policy of insurance
thereon. The Grantor will permit the Secured Party, or its designee, to inspect the Collateral at any reasonable time, wherever
Grantor will pay promptly when due all taxes, assessments, governmental charges, and levies upon the Collateral or incurred in
connection with the use or operation of the Collateral or incurred in connection with this Agreement.
for direct shipments to the end user, Inventory shall be maintained at locations designated by the Secured Party. Inventory for
direct shipments to the end user may be maintained at locations designated by the Grantor, and if required, at locations under
the control of the Secured Party.
Party Appointed Attorney-in-Fact. The Grantor hereby appoints the Secured Party the Grantor's attorney-in-fact, with full authority
in the place and stead of the Grantor and in the name of the Grantor or otherwise, from time to time during the continuance of
an Event of Default in the Secured Party's discretion to take any action and to execute any instrument which the Secured Party
may deem necessary or advisable to accomplish the purposes of this Agreement (but the Secured Party shall not be obligated to and
shall have no liability to the Grantor or any third party for failure to do so or take action). This appointment, being coupled
with an interest, shall be irrevocable. The Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof.
Party May Perform. If the Grantor fails to perform any obligation contained in this Agreement, the Secured Party may itself
perform, or cause performance of, such obligation, and the expenses of the Secured Party incurred in connection therewith shall
be payable by the Grantor; provided that the Secured Party shall not be required to perform or discharge any obligation
of the Grantor.
Care. The Secured Party shall have no duty with respect to the care and preservation of the Collateral beyond the exercise
of reasonable care. The Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment substantially equal to that which the Secured Party accords
its own property, it being understood that the Secured Party shall not have any responsibility for (a) ascertaining or taking action
with respect to any claims, the nature or sufficiency of any payment or performance by any party under or pursuant to any agreement
relating to the Collateral or other matters relative to any Collateral, whether or not the Purchaser has or is deemed to have knowledge
of such matters, or (b) taking any necessary steps to preserve rights against any parties with respect to any Collateral. Nothing
set forth in this Agreement, nor the exercise by the Secured Party of any of the rights and remedies hereunder, shall relieve the
Grantor from the performance of any obligation on the Grantor's part to be performed or observed in respect of any of the Collateral.
13. Remedies Upon Default.
If any Event of Default shall have occurred and be continuing:
Secured Party, for its benefit, without any other notice to or demand upon the Grantor, may assert all rights and remedies of a
secured party under the PPSA or other applicable law, including, without limitation, the right to take possession of, hold, collect,
sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose of all or any portion of the Collateral.
If notice prior to disposition of the Collateral or any portion thereof is necessary under applicable law, written notice mailed
to the Grantor at its notice address as provided in Section 17 hereof ten (10) days prior to the date of such disposition
shall constitute reasonable notice, but notice given in any other reasonable manner shall be sufficient. So long as the sale of
the Collateral is made in a commercially reasonable manner, the Secured Party may sell such Collateral on such terms and to such
purchaser(s) as the Secured Party in its absolute discretion may choose, without assuming any credit risk and without any obligation
to advertise or give notice of any kind other than that necessary under applicable law. Without precluding any other methods of
sale, the sale of the Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in
conformity with reasonable commercial practices of creditors disposing of similar property. At any sale of the Collateral, if permitted
by applicable law, the Secured Party may be the purchaser, licensee, assignee or recipient of the Collateral or any part thereof
and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion
of the Collateral sold, assigned or licensed at such sale, to use and apply any of the Secured Obligations as a credit on account
of the purchase price of the Collateral or any part thereof payable at such sale. To the extent permitted by applicable law, the
Grantor waives all claims, damages and demands it may acquire against the Secured Party arising out of the exercise by it or them
of any rights hereunder. The Grantor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption
with respect to the Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling the Collateral and
any other security for the Secured Obligations or otherwise. At any such sale, unless prohibited by applicable law, the Secured
Party or any custodian may bid for and purchase all or any part of the Collateral so sold free from any such right or equity of
redemption. Neither of the Secured Party nor any custodian shall be liable for failure to collect or realize upon any or all of
the Collateral or for any delay in so doing, nor shall it be under any obligation to take any action whatsoever with regard thereto.
rights of the Grantor to (i) exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant
to Section 8(a)
and (ii) receive the dividends and other distributions which it would otherwise
be entitled to receive and retain pursuant to Section 8(b), shall immediately cease, and all such rights shall thereupon
become vested in the Secured Party, for its benefit, which shall have the sole right to exercise such voting and other consensual
rights and receive and hold such dividends and other distributions as Collateral.
cash held by the Secured Party as Collateral and all cash Proceeds received by the Secured Party in respect of any sale of, collection
from, or other realization upon all or any part of the Collateral shall be applied in whole or in part by the Secured Party to
the payment of expenses incurred by the Secured Party in connection with the foregoing, including reasonable attorneys' fees, and
the balance of such proceeds shall be applied or set off against all or any part of the Secured Obligations in such order as the
Secured Party shall elect. Any surplus of such cash or cash Proceeds held by the Secured Party and remaining after payment in full
of all the Secured Obligations shall be paid over to the Grantor or to whomsoever may be lawfully entitled to receive such surplus.
The Grantor shall remain liable for any deficiency if such cash and the cash Proceeds of any sale or other realization of the Collateral
are insufficient to pay the Secured Obligations and the fees and other charges of any attorneys employed by the Secured Party to
collect such deficiency.
the Secured Party shall determine to exercise its rights to sell all or any of the Collateral pursuant to this Section, the Grantor
agrees that, upon request of the Secured Party, the Grantor will, at its own expense, do or cause to be done all such acts and
things as may be necessary to make such sale of the Collateral or any part thereof valid and binding and in compliance with applicable
Waiver and Cumulative Remedies. The Secured Party shall not by any act (except by a written instrument pursuant to Section
16), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced
in any Default or Event of Default. All rights and remedies herein provided are cumulative and are not exclusive of any rights
or remedies provided by law.
Interest Absolute. All rights of the Secured Party hereunder, and all Secured Obligations of the Grantor hereunder, shall be
absolute and unconditional irrespective of:
illegality or lack of validity or enforceability of any Secured Obligation or any related agreement or instrument;
change in the time, place or manner of payment of, or in any other term of, the Secured Obligations, or any rescission, waiver,
amendment or other modification of the Senior Notes, this Agreement or any other agreement, including any increase in the Secured
Obligations resulting from any extension of additional credit or otherwise;
taking, exchange, substitution, release, impairment or non-perfection of any Collateral or any other collateral, or any taking,
release, impairment, amendment, waiver or other modification of any guaranty, for all or any of the Secured Obligations;
manner of sale, disposition or application of proceeds of any Collateral or any other collateral or other assets to all or part
of the Secured Obligations;
default, failure or delay, wilful or otherwise, in the performance of the Secured Obligations;
defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to, or be asserted
by, the Grantor against the Secured Party; or
other circumstance (including, without limitation, any statute of limitations) or manner of administering the Loans or any existence
of or reliance on any representation by the Secured Party that might vary the risk of the Grantor or otherwise operate as a defense
available to, or a legal or equitable discharge of, the Grantor or any other grantor, guarantor or surety.
None of the terms or provisions of this Agreement may be amended, modified, supplemented, terminated or waived, and no consent
to any departure by the Grantor therefrom shall be effective unless the same shall be in writing and signed by the Secured Party
and the Grantor, and then such amendment, modification, supplement, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which made or given.
For Notices. All notices and other communications provided for in this Agreement shall be in writing and shall be given in
the manner and become effective as set forth in the Senior Note, and addressed to the respective parties at their addresses as
specified on the signature pages hereof or as to either party at such other address as shall be designated by such party in a written
notice to each other party.
Security Interest; Further Actions. This Agreement shall create a continuing First Priority lien and security interest in the
Collateral and shall subject to Section 19, remain in full force and effect until payment and performance in full
of the Secured Obligations.
Release. On the date on which all Secured Obligations have been paid and performed in full and all commitments of the Secured
Parties to lend or make any extensions of credit shall have terminated or waived, the Secured Party will, at the request and sole
expense of the Grantor, (a) duly assign, transfer and deliver to or at the direction of the Grantor (without recourse and without
any representation or warranty) such of the Collateral as may then remain in the possession of the Secured Party, together with
any monies at the time held by the Secured Party hereunder, and (b) execute and deliver to the Grantor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement.
20. Governing Law; Jurisdiction.
This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising
out of or relating to this Agreement (except, as to the Senior Note, as expressly set forth therein) and the transactions contemplated
hereby shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without regard to the conflicts
of law provisions of the State of New Jersey, or of any other state. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN CONNECTION WITH ANY CLAIM, ACTION, SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO HEREBY IRREVOCABLY AGREES THAT ANY SUCH CLAIM, ACTION, SUIT OR PROCEEDING
MAY BE BROUGHT IN ANY NEW JERSEY STATE COURT OR UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY AND WAIVES ANY OBJECTION
TO THE VENUE OF THE AFORESAID COURTS.
This Agreement shall (i) be binding upon the Grantor, its respective successors and assigns and (ii) inure, together
with the rights and remedies of the Secured Party hereunder, to the benefit of the Secured Party and each of their successors,
transferees and assignees; provided that the Grantor may not assign or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of the Secured Party. Except for the holder of a Permitted Lien, no other
Persons (including any other creditor of the Grantor) shall have any interest herein or any right or benefit with respect hereto.
Should any one or more of the provisions of this Agreement be determined to be illegal or unenforceable, all other provisions shall
remain effective and binding on the parties hereto.
Entire Agreement. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in counterparts
(and by different parties hereto in different counterparts), each of which shall constitute an original, but all taken together
shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in
electronic (i.e., "pdf" or "tif") format shall be effective as delivery of a manually executed counterpart
of this Agreement. This Agreement constitutes the entire contract among the parties with respect to the subject matter hereof and
supersede all previous agreements and understandings, oral or written, with respect thereto.
[SIGNATURE PAGE FOLLOWS]
WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
|SHORELINE CAPITAL MANAGEMENT LTD, as Grantor
SHORELINE MEMORY INC., as Grantor
By: /s/ Trevor Folk
Name: Trevor Folk
Address for Notices:
Suite 103, 145 King Street West, Toronto,
Ontario M5W 1J8
By /s/ Trevor Folk
Name: Trevor Folk
Address for Notices:
Suite 103, 145 King Street West, Toronto,
Ontario M5W 1J8
DATARAM CORPORATION, as Secured Party
John H. Freeman
Name: John H. Freeman
Title: President and CEO
Address for Notices:
777 Alexander Road, Suite 100
Princeton, NJ 08540