Exhibit 10.4
FIRST AMENDED SECURITY AGREEMENT
1. DATE: Originally dated September 1,2002 Amended January 16,2003
2. BORROWER: International Travel CD's Inc., a Colorado corporation
3. BORROWER'S MAILING ADDRESS (INCLUDING COUNTY):
000 Xxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
4. SECURED PARTY'S MAILING ADDRESS (INCLUDING COUNTY):
Trident Growth Fund, LP
000 Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
5. CLASSIFICATION OF COLLATERAL: Accounts, cash, contract rights, property,
equipment, general intangibles, instruments, deposit accounts, chattel
paper, leases, mineral rights and all other assets.
6. COLLATERAL (INCLUDING ALL ACCESSIONS): Accounts, cash, contract rights,
property, equipment, general intangibles, instruments, deposit accounts,
chattel paper, leases, mineral rights and all other assets.
a) All attachments, accessions accessories, tools, parts supplies,
increases, and additions to and all replacements of and substitutions
for any property described above.
b) All products and produce of any of the property described in this
Collateral section.
c) All accounts, contracts rights, general intangibles, instruments,
rents, monies, payments, and all other rights, arising out of a sale,
lease, or other disposition of any of the property described in this
Collateral section.
d) All proceeds (including insurance proceeds) from the sale,
destruction, loss, or other deposition of any of the property described
in this Collateral section.
7. OBLIGATION: Secured Promissory Notes ("Notes"), and all other indebtedness,
liabilities and obligations of the Borrower to the Secured Party now owing
or hereinafter incurred.
a) DATE: September 2002 and January 16,2003
b) AMOUNT: $950,000
c) MAKER: The Borrower
d) PAYEE: The Secured Party
e) FINAL MATURITY DATE: As therein provided
f) TERMS OF PAYMENT (OPTIONAL): As therein provided
Borrower grants to Secured Party a security interest in the Collateral and all
its proceeds to secure payment and performance of Borrower's Obligation and all
renewals and extensions of any of the Obligation.
8. BORROWER'S WARRANTIES:
a) OWNERSHIP. Borrower owns the Collateral and has the authority to
grant this security interest.
b) FINANCIAL STATEMENTS. All information about Borrower's financial
condition provided to Secured Party was accurate when submitted, as
will be any information subsequently provided.
9. BORROWER'S COVENANTS:
a) PROTECTION OF COLLATERAL. Borrower will defend the Collateral
against all claims and demands adverse to Secured Party's interest in
it and will keep it free from all liens except those for taxes not yet
due and from all security interests except this one and Permitted Liens
which are only liens granted to secure senior indebtedness consented to
by Secured Party. The Collateral will remain in Borrower's possession
or control at all times, except as otherwise provided in this
agreement. Borrower will maintain the Collateral in good condition and
protect it against misuse, abuse, waste and deterioration except for
ordinary wear and tear resulting from its intended use.
b) INSURANCE. Borrower, in the ordinary course of business, will insure
the Collateral in accord with Secured Party's reasonable requirements.
c) SECURED PARTY'S COSTS. Borrower will pay all expenses incurred by
Secured Party in obtaining, preserving, perfecting, defending and
enforcing this security interest or the Collateral and in collecting or
enforcing the Obligation. Expenses for which Borrower is liable
include, but are not limited to, taxes, assessments, reasonable
attorney's fees, and other legal expenses. These expenses will bear
interest from the dates of payments at the highest rate stated in notes
that are part of the Obligation, and Borrower will pay Secured Party
this interest on demand at a time and place reasonably specified by
Secured Party. These expenses and interest will be part of the
Obligation and will be recovered as such in all respects.
d) ADDITIONAL DOCUMENTS. Borrower will sign any papers that Secured
Party considers necessary to obtain, maintain, and perfect this
security interest or to comply with any relevant law.
e) NOTICE OF CHANGES. Borrower will immediately notify Secured Party of
any material change in the Collateral other than in the ordinary course
of business; change in Borrower's name, address, or location; change in
any matter warranted or represented in this agreement; change that may
affect this security interest; and any Event of Default.
f) USE AND REMOVAL OF COLLATERAL. Borrower will use the Collateral
primarily according to the stated classification unless Secured Party
consents otherwise in writing. Borrower will not allow the Collateral
to become an accession to any goods, to be commingled with other goods,
or to become a fixture, accession, or part of a product or mass with
other goods except as expressly provided in this agreement or in the
ordinary course of business.
g) SALE. Borrower will not sell, transfer, or encumber any of the
Collateral without the prior written consent of Secured Party other
than in the ordinary course of business except the Borrower may sell,
transfer or encumber Collateral secured by Permitted Liens.
h) Borrower agrees not to commingle the Rights to Payment, proceeds or
collections thereunder with other property.
i) Borrower agrees, with regard to the Collateral and proceeds, from
time to time when reasonably requested by Secured Party, to prepare and
deliver a schedule of all Collateral and proceeds subject to this
agreement and to assign in writing and deliver to secured party all
accounts, contracts, leases and other chattel paper, instruments,
documents and other evidences thereof.
j) Borrower agrees with regard to the Collateral and proceeds in the
event Secured Party elects to receive payments of rights to payment or
proceeds hereunder, to pay all reasonable expenses incurred by secured
party in connection therewith, including reasonable expenses of
accounting, correspondence, collection efforts, reporting to account or
contract Borrowers, filing, recording, record keeping and expenses
incidental thereto.
10. RIGHTS AND REMEDIES OF SECURED PARTY:
a) GENERALLY. Secured Party may exercise the following rights and
remedies after the occurrence and continuance of an Event of Default:
i. take control of any proceeds of the Collateral;
ii. release any Collateral in Secured Party's possession to
any Borrower, temporarily or otherwise;
iii. take control of any funds generated by the Collateral,
such as refunds from and proceeds of insurance, and reduce any
part of the Obligation accordingly or permit Borrower to use
such funds to repair or replace damaged or destroyed
Collateral covered by insurance; and
iv. demand, collect, convert, redeem, settle, compromise,
receipt for, realize on, adjust, xxx for, and foreclose on the
Collateral as Secured Party desires.
v. exercise any of the other remedies available to the Secured
Party under the Loan Agreement.
b) INSURANCE. If Borrower fails to maintain insurance as required by
this agreement or otherwise by Secured Party, then after written notice
to Borrower, Secured Party may purchase single-interest insurance
coverage up to the replacement value of the Collateral that is
insurable that will protect only Secured Party. If Secured Party
purchases this insurance, its premiums will become part of the
Obligation.
11. EVENTS OF DEFAULT: Each of the following conditions is an Event of Default
if not cured within an applicable cure period:
a) if Borrower defaults in timely payment or performance of any
obligation, covenant, or liability in any written agreement between
Borrower and Secured Party or in any other transaction secured by this
agreement;
b) if any warranty, covenant or representation made to Secured Party by
or on behalf of Borrower proves to have been false in any material
respect when made;
c) if a receiver is appointed for Borrower or any of the Collateral;
d) if any financing statement regarding the Collateral but not related
to this security interest and not favoring Secured Party is filed other
than financing statements for the purpose of noticing Permitted Liens;
e) if any lien, other than Permitted Liens, attaches to any of the
Collateral;
f) if any material amount of the Collateral is lost, stolen, damaged,
or destroyed, unless it is promptly replaced with Collateral of like
quality or restored to its former condition.
g) Secured party, in good faith, believes that any or all of the
Collateral and/or proceeds to be in danger of misuse, dissipation,
commingling, loss, theft, damage or destruction, or otherwise in
jeopardy or unsatisfactory in character or value.
h) A Default shall occur and be continuing under the Notes.
12. REMEDIES OF SECURED PARTY ON DEFAULT:
During the existence of any Event of Default and subject to any applicable cure
periods, Secured Party may declare the unpaid principal and earned interest of
the Obligation immediately due in whole or part, enforce the Obligation, and
exercise any rights and remedies granted by the Uniform Commercial Code or by
this agreement, including the following:
a) require Borrower to deliver to Secured Party all books and records
relating to the Collateral;
b) require Borrower to assemble the Collateral and make it available to
Secured Party at a place reasonably convenient to both parties;
c) take possession of any of the Collateral and for this purpose enter
any premises where it is located if this can be done without breach of
the peace;
d) sell, lease, or otherwise dispose of any of the Collateral in accord
with the rights, remedies, and duties of a secured party under chapters
2 and 9 of the Texas Uniform Commercial Code after notice as required
by those chapters; unless the Collateral threatens to decline speedily
in value, is perishable, or would typically be sold on a recognized
market, Secured Party will give Borrower reasonable notice of any
public sale of the Collateral or of a time after which it may be
otherwise disposed of without further notice to Borrower; in this
event, notice will be deemed reasonable if it is mailed, postage
prepaid, to Borrower at the address specified in this agreement at
least ten days before any public sale or ten days before the time when
the Collateral may be otherwise disposed of without further notice to
Borrower; in this event, notice will be deemed reasonable if it is
mailed, postage prepaid, to Borrower at the address specified in this
agreement at least ten days before any private sale or ten days before
any public sale or ten days before time when the Collateral may be
otherwise disposed of without further notice to Borrower;
e) surrender any insurance policies covering the Collateral and receive
the unearned premium;
f) apply any proceeds from disposition of the Collateral after default
in the manner specified in chapter 9 of the Uniform Commercial Code,
including payment of Secured Party's reasonable attorney's fees and
court expenses; and
g) if disposition of the Collateral leaves the Obligation unsatisfied,
collect the deficiency from Borrower.
13. GENERAL PROVISIONS
a) Parties Bound. Secured Party's rights under this agreement shall
inure to the benefit of its successors and assigns. Assignment of any
part of the Obligation and delivery by Secured Party
of any part of the Collateral will fully discharge Secured Party from
responsibility for that part of the Collateral. If Borrower is more
than one, all their representations, warranties, and agreements are
joint and several. Borrower's obligations under this agreement shall
bind Borrower's personal representatives, successors, and assigns.
b) Waiver. Neither delay in exercise nor partial exercise of any
Secured Party's remedies or rights shall waive further exercise of
those remedies or rights. Secured Party's failure to exercise remedies
or rights does not waive subsequent exercise of those remedies or
rights. Secured Party's waiver of any default does not waive further
default. Secured Party's waiver of any right in this agreement or of
any default is binding only if it is in writing. Secured Party may
remedy any default without waiving it.
c) Reimbursement. If Borrower fails to perform any of Borrower's
obligations, Secured Party may perform those obligations and be
reimbursed by Borrower on demand at the place where the note is payable
for any sums so paid, including attorney's fees and other legal
expenses, plus interest on those sums from the dates of payment at the
rate stated in the note for matured, unpaid amounts. The sum to be
reimbursed shall be secured by this security agreement.
d) Interest Rate. Interest included in the Obligation shall not exceed
the maximum amount of non-usurious interest that may be contracted for,
taken, reserved, charged, or received under law; any interest in excess
of that maximum amount shall be credited to the principal of the
obligation or, if that has been paid, refunded. On any acceleration or
required or permitted prepayment of the Obligation, any such excess
shall be canceled automatically as of the acceleration or prepayment
or, if already paid, credited on the principal amount of the Obligation
or, if the principal amount has been paid, refunded. This provision
overrides other provisions in this and all other instruments concerning
the Obligation.
e) Modifications. No provisions of this agreement shall be modified or
limited except by written agreement.
f) Severability. The unenforceability of any provision of this
agreement will not effect the enforceability or validity of any other
provision.
g) After-Acquired Consumer Goods. This security interest shall attach
to after acquired consumer goods only to the extent permitted by law.
h) Applicable Law. This agreement will be construed according to Texas
laws.
i) Place of Performance. This agreement is to be performed in the
county of Secured Party's mailing address. In this case, the agreement
will be performed in Dallas county, Texas.
j) Financing Statement. A carbon, photographic, or other reproduction
of this agreement or any financing statement covering the Collateral is
sufficient as a financing statement.
k) Presumption of Truth and Validity. If the Collateral is sold after
default, recitals in the xxxx of sale or transfer will be prima facie
evidence of their truth, and all prerequisites to the sale specified by
this agreement and by the Texas Uniform Commercial Code will be
presumed satisfied.
1) Singular and Plural. When the context requires, singular nouns and
pronouns include the plural.
m) Cumulative Remedies. Foreclosure of this security interest by suit
does not limit Secured Party's remedies, including the right to sell
the Collateral under the terms of this agreement. All remedies of
Secured Party may be exercised at the same or different times, and no
remedy shall be a defense to any other. Secured Party's rights and
remedies include all those granted by law or otherwise, in addition to
those specified in this agreement.
n) Agency. Borrower's appointment of Secured Party as Borrower's agent
is coupled with an interest and will survive any disability of
Borrower.
Secured Party:
----------------------------
Trident Growth Fund, LP
By: Trident Management, LLC, its General Partner
By: Xxxxxx Xxxx, Authorized Member
Borrower:
International CD's, Inc.
-----------------------------
Xxxxxx Xxxxxxxxxx
Title: President
