Exhibit 10.16
SECURITY AGREEMENT
XxxxXxxxxxx.xxx. Incorporated ("Debtor"), and Xxxxxxx Xxxxxxxx
("Secured Party") agree, effective as of the 22nd day of November, 2000, as
follows:
1. Background and Purpose.
1.1 Debtor has executed a promissory note payable to Secured Party in the
original principal amount of Two Hundred Fifty Thousand Dollars ($250,000) (the
"Note").
1.2 To secure Debtor's obligations under the Note, and Debtor's
obligations under this Agreement, Debtor has agreed to grant to Secured Party
security interest as provided below.
1.3 The parties desire to set forth more fully the terms of this
Agreement.
2. Grant of Security Interest. To secure Debtor's Obligations (as defined in
Xxxxxxxxx 0 xxxxx), Xxxxxx grants to Secured Party a security interest in the
Collateral (as defined in Paragraph 4 below).
3. Obligations. For purposes of this Agreement, "Obligations" means any and
all debts, obligations and liabilities of Debtor to Secured Party arising out
of, or relating in any way to the Note, and any obligations of Debtor to Secured
Party pursuant to this Agreement, whether or not existing or arising after the
date of this Agreement, voluntary or involuntary, jointly owned with others,
direct or indirect, or absolute or contingent, and whether or not from time to
time increased, decreased, extinguished, created, or incurred.
4. Collateral. For purposes of this Agreement, "Collateral" means:
a. All accounts, accounts receivable, contract rights and general
intangibles, including, without limitation, all forms of payment, all present
and future incomes, rents, revenues, issues and profits, goodwill, license and
license rights, bailment or leasehold interests, whether as lessor or lessee,
all causes of action and recoveries for any loss in value of the real estate
of Debtor or items of property described in this Agreement, rights of and to
security agreements and other contracts or assignments providing security to
Debtor, book debts, credits, indemnities, warranties or guarantees payable to
Debtor upon loss or damage of property, invention, designs, design
registrations, trademarks, trade styles, trade name, know-how, powers,
privileges, logos, franchise rights, payments in kind, advertising and
promotional materials, trade secrets, patents, patent rights, copyrights,
patent applications, tax refunds, customer lists, business and accounting
records, including all ledger account cards, computer tapes and disks and other
computer information, in all cases whether now owned or hereafter created or
acquired by Debtor or in which Debtor may now have or may after the date of this
Agreement acquire an interest;
b. All inventory, including, without limitation, all goods held
for sale or lease, finished goods, merchandise, parts and supplies, of every
kind and description, whether now owned or acquired by Debtor after the date of
this Agreement, or in which Debtor may now have
Security Agreement
November 22nd, 2000
Page -2-
or may after the date of this Agreement acquire an interest, including, without
limitation, inventory temporarily out of Debtor's custody or possession and any
returns or repossessions upon any sales or accounts;
c. All goods, including, without limitation, equipment, machinery,
materials, furniture, furnishings, engines, appliances, fixtures, tools, parts,
supplies, and vehicles of every kind and description, whether now owned or
acquired by Debtor after the date of this Agreement or delivered to the real
property of Debtor, or in which Debtor may now have or may after the date of
this Agreement acquire an interest, and all additions, accessions, replacements,
substitutions, and improvements to such goods and wherever located;
d. All documents, documents of title, deposits accounts,
negotiable and nonnegotiable instruments, shares, stocks, warrants, stock
options, bonds, debentures, securities, moneys, sources of money,
uncalled capital, letters of credit, investment property, and chattel
paper whether now owned or acquired after the date of this Agreement by Debtor;
and
e. All proceeds and products of any of the personal property
described above, in any form, including, without limitation, proceeds of any
insurance relating to such collateral or fire and builder's risk insurance and
unrenewed insurance premiums, proceeds constituting of any of the above types of
collateral, all awards made in eminent domain proceedings or purchased in lieu
of such eminent domain proceedings, and proceeds of any tort cause of action in
existence, now or after the date of this Agreement and all replacements,
substitutions, renewals, returns, additions, accessions, rents, royalties,
issues, documents of ownership, and receipts for any of the foregoing.
The term "Collateral" is subject to all licenses previously granted by Debtor
and to all pre-existing contractual obligations of Debtor.
5. Representations and Warranties. As a material inducement to Secured Party
under this Agreement, Debtor represents and warrants that the following are and
shall remain true and correct, except as specifically set forth in a schedule of
exceptions attached to this Agreement:
5.1 Title. Debtor is the owner of all right, title, and interest in the
Collateral free and clear of all liens, encumbrances, and security interests,
except the security interest created by this Agreement.
5.2 Truth. All information that Debtor has provided to Secured Party
concerning the Collateral is true and correct.
5.3 No Defenses. No defenses, offsets, claims or counterclaims exist
against Debtor that may be asserted against Secured Party in any proceeding to
enforce Secured Party's rights in the Collateral.
Security Agreement
November 22nd, 2000
Page -3-
5.4 No Conflict. The execution, delivery, and performance of this
Agreement by Debtor is not in violation of any applicable law or regulation or
contractual obligation of Debtor.
5.5 First Priority Lien. The liens granted to Secured Party under this
Agreement will constitute a first priority lien on the Collateral upon the
timely filing of a UCC-1 Financing Statement.
5.6 Due Authorization. Debtor has been duly authorized to execute and
deliver this Agreement, which is a valid and binding obligation by Debtor.
6. Covenants of Debtor.
6.1 Protection of Security Interest. Contemporaneously with the execution
of this Agreement, Debtor shall properly execute and deliver to Secured Party
UCC-1 Financing Statements to enable Secured Party to perfect Secured Party's
security interest in the Collateral. Debtor agrees also to execute, file, and
record such other statements, notices, and agreements, take such action and
obtain such certificates and documents, in accordance with all applicable laws,
statutes, and regulations as may be necessary or advisable to perfect, evidence,
and continue Secured Party's security interest in the Collateral.
6.2 Transactions Involving Collateral. Debtor shall not, without the
prior written consent of Secured Party, (a) sell, offer to sell, or otherwise
transfer the Collateral except in the ordinary course of business, or to pledge,
mortgage, encumber, or otherwise permit the Collateral to be subject to any
lien, security interest, or charge, other than the security interest created by
this Agreement.
6.3 Compliance with Laws. Debtor shall comply with all laws, statute, and
regulations pertaining to the Collateral.
6.4 Taxes, Assessments, and Liens. Debtor shall pay when due all taxes,
assessments, and liens with regard to the Collateral.
7. Authorized Action by Secured Party. Debtor irrevocably appoints Secured
Party as Debtor's attorney in fact to do any act that Debtor is obligated to do
pursuant to this Agreement to preserve or protect the Collateral and to
preserve, protect, or establish Secured Party's lien on the Collateral. Debtor
further irrevocably appoints Secured Party to exercise such rights and powers as
Debtor might exercise with respect to the Collateral following an Event of
Default, as defined below. These powers shall include without limitation the
right to (a) collect by legal proceedings or otherwise, and endorse, receive,
and receipt all dividends, interest, payments, proceeds and other sums and
property now or after the date of this Agreement payable on account of the
Collateral, (b) transfer the Collateral to Secured Party's own or Secured
Party's nominee's name and (c) make any compromise or settlement and take any
action Secured Party deems advisable with respect to the Collateral. Debtor
agrees to reimburse Secured Party on demand for any costs and expenses,
including without limitation attorney fees, which Secured
Security Agreement
November 22/nd/, 2000
Page -4-
Party may incur while acting as Debtor's attorney in fact under this Agreement,
all of which costs and expenses are included in the Obligations secured by this
Agreement. Secured Party shall have no obligation to act pursuant to this
paragraph and shall not be required to make any presentment, demand, or protest,
or give any notice or take any action to preserve any rights against any other
person in connection with the Collateral.
8. Defaults and Remedies.
8.1 Event of Default. Any of the following events or conditions
shall constitute an Event of Default by Debtor under this Agreement:
a. Default in payment of the obligations in accordance with
the terms of the Note;
b. Default in the performance of any Obligations or breach
of any agreement, representation, or warranty contained in this Agreement;
c. Any levy or proceeding against the Collateral or Debtor's
interest in the Collateral, except if Debtor is conducting appropriate
proceedings in good faith to contest the levy or proceeding; or
d. The filing of a petition by or against Debtor under the
provisions of the Bankruptcy Code.
8.2 Remedies. Upon the occurrence of an Event of Default, Secured
Party:
a. Shall have and may exercise the right to sell or
otherwise dispose of all or a portion of the Collateral, and to apply the
proceeds of such sale or disposition in the order following to (i) the expenses
of selling or otherwise disposing of the Collateral and the reasonable
attorneys' fees and legal expenses incurred by the Secured Party; and (ii) the
satisfaction of the Obligations.
b. Shall have and may exercise all other rights and remedies
accorded to Secured Party by the Nevada Revised Statutes;
c. May declare all unperformed Obligations, in whole or in
party, of Debtor immediately due and payable without demand or notice; and
d. May require Debtor to take any and all action necessary
to make the Collateral available to Secured Party.
8.3 Remedies Cumulative. All of Secured Party's rights and remedies,
whether evidenced by this Agreement or by any other writing, shall be cumulative
and may be exercised
Security Agreement
November 22nd, 2000
Page-5-
singularly or concurrently. Election by Secured Party to pursue any remedy shall
not exclude pursuit of any other remedy.
9. Waiver of Hearing. Debtor expressly waives any constitutional or other
right to a judicial hearing prior to the time Secured Party takes possession or
disposes of the Collateral upon an Event of Default as provided in Paragraph 8
above.
10. Escrow. The parties may convey all or a portion of the Collateral to an
escrow officer mutually agreed-upon by the parties (the "Escrow Officer")
pursuant to mutually agreeable escrow instructions that require the Escrow
Officer to sell the portion of the Collateral conveyed into escrow and to use
the proceeds of such sale(s) to satisfy the Obligations.
11. Additional Documentation; Cooperation. Each party shall, upon the request
of the other, execute, acknowledge, and deliver to the other any instrument that
may be required to accomplish the intent of this Agreement. Each party agrees to
cooperate to effectuate the intent of this Agreement and shall take all
appropriate action necessary or useful in doing so.
12. Nonresponsibility of Secured Party. Secured Party is not responsible for
the preservation or exercise of any rights to, or granted by, any Collateral and
is not responsible for insuring any such Collateral or for the wear, destruction
(partial or total), or depreciation of Collateral in possession.
13. Miscellaneous.
13.1 Notices. All notices, requests, consents and other communications
which are required or permitted hereunder shall be in writing and shall be
delivered personally, sent by facsimile transmission, or mailed by certified or
registered mail, postage prepaid, return-receipt requested (in which case it
shall be deemed given three (3) business days after mailing) to the addresses
listed in the preamble of this Agreement.
13.2 Entire Agreement. This Agreement, together with the Note contains the
entire understanding of the parties in respect of its subject matter and
supersedes all prior agreements and understandings (oral or written) between or
among the parties with respect to such subject matter.
13.3 Assignment. The rights and obligations of this Agreement shall bind
and insure to the benefit of the parties and their respective successors and
assigns.
13.4 Counterparts; Facsimile. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument. Executed copies of this
Agreement of this Agreement may be delivered by facsimile, and delivery of
executed facsimile copies to the parties and their counsel shall be deemed to be
a delivery of a duplicate original and sufficient delivery to result in entry to
this Agreement by the transmitting party.
Security Agreement
November 22nd, 2000
Page -6-
13.5 Governing Law, Jurisdiction and Waiver of Venue. This Agreement shall
be governed by and construed in accordance with the laws of the State of Nevada
regardless of the fact that any of the parties hereto may be or may become a
resident of a different country, state, or jurisdiction. Any suit, action, or
proceeding arising out of, or with respect to, this Agreement shall be filed in
a court of competent jurisdiction within the County of Washoe, State of Nevada
or in the U.S. District Court for the District of Nevada, Northern Division. The
parties hereby consent to the personal jurisdiction of such courts within the
County of Washoe, State of Nevada and the U.S. District Court for the District
of Nevada, Northern Division. The parties hereby waive any objections to venue
in such courts with Washoe County, State of Nevada and the U.S. District Court
for the District of Nevada, Northern Division.
13.6 Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to receive from the other its reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which such party may
be entitled.
13.7 Severability. In case any provision of this Agreement shall, for any
reason, be held to be invalid, unenforceable, or illegal, such provision shall
be severed from this Agreement, and such invalidity, unenforceable or illegality
shall not affect any other provisions of this Agreement.
13.8 Waiver. Secured Party shall not be deemed to have waived any rights
under this Agreement unless such waiver is in writing and signed by secured
Party. No delay or omission on the part of Secured Party in exercising any right
shall operate as a waiver of such right or any other right.
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered as of the day and year first above written.
SECURED PARTY
By:
-------------------------------
Name:
--------------------------
Title:
-------------------------
XXXXXXXXXXX.XXX, INCORPORATED, a
Nevada corporation
By: /s/ XXXX XXXXXXX
-------------------------------
Name: XXXX XXXXXXX
--------------------------
Title: CEO
-------------------------
