EXHIBIT 10.2
SECURITY AGREEMENT
This Security Agreement (this "Agreement"), dated as of February 4,
2004, is entered into by and between WOWI Acquisition, Inc., a Texas corporation
("WOWI"), and World of Outlaws, Inc., a Texas corporation (the "Secured Party").
WHEREAS, in order to induce the Secured Party to enter into the Asset
Purchase Agreement dated as of the date hereof, by and among WOWI, Xxx Xxxxxxx,
Boundless Motor Sports Racing, Inc., a Nevada corporation and the parent to
WOWI, and Secured Party (the "Purchase Agreement"), and to secure the Note (as
defined in the Purchase Agreement) issued to Secured Party thereunder, the
Secured Party has required that WOWI grant to the Secured Party a security
interest in the Collateral (as defined below) as set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and other agreements hereinafter contained, in order to induce the
Secured Party to undertake its obligations under the Purchase Agreement, WOWI
hereby agrees with the Secured Party for its benefit as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth below.
Capitalized terms used, but not otherwise defined herein shall have the meanings
ascribed to them in the Purchase Agreement.
"Business" means sprint car racing, promotion and race sanctioning
business.
"Charges" shall mean all taxes, charges, fees, imposts, levies or other
assessments, including, without limitation, all net income, gross income, gross
receipts, sales, use, ad valorem, value added, transfer, franchise, profits,
inventory, capital stock, license, withholding, payroll, employment, social
security, unemployment, excise, severance, stamp, occupation and property taxes,
custom duties, fees, assessments, liens, claims and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts, imposed by any taxing or other authority, domestic or
foreign, upon the Collateral or WOWI.
"Collateral" shall mean and include:
(a) all Assets (as defined in the Purchase Agreement);
(b) any and all accounts, accounts receivable, receivables,
contract rights, book debts, checks, notes, drafts, instruments, chattel paper,
acceptances, chooses in action now existing or hereafter arising out of the
business of the WOWI;
(c) any and all of WOWI's inventory, including without
limitation any and all goods held for sale or lease or being processed for sale
or lease in WOWI's business as now or hereafter conducted, whether now owned or
hereinafter acquired, including all materials, goods and work in process,
finished goods, and other tangible property held for sale or lease or furnished
or to be furnished under contracts of service or used or consumed in WOWI's
business, along with all
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documents (including documents of title) covering inventory, all cash and
non-cash proceeds from the sale of inventory including proceeds from insurance;
(d) any and all of WOWI's equipment, including without
limitation any and all furniture, fixtures and equipment, whether now owned or
hereafter acquired, together with all increased parts, fitting, accessories,
equipment, and special tools now or hereafter affixed to any part thereof or
used in connection therewith, and all products, additions, substitutions,
accessions, and all cash and non-cash proceeds, including proceeds from
insurance thereof;
(e) any and all general intangibles, including without
limitation any and all trademarks, trade names, trademark registrations,
trademark applications, service marks, service xxxx registrations, service xxxx
applications, contracts, sanction agreements, racing contracts, sponsor
contracts, and television contracts; and
(f) all proceeds and products of the foregoing in whatever
form, including, but not limited to: cash, deposit accounts (whether or not
comprised solely of proceeds), certificates of deposit, insurance proceeds
(including hazard, flood and credit insurance), negotiable instruments and other
instruments for the payment of money, chattel paper, security agreements,
documents, eminent domain proceeds, condemnation proceeds and tort claim
proceeds.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, security interest, lien (whether statutory or otherwise), charge,
claim or encumbrance, or preference, priority or other security agreement or
preferential arrangement held or asserted in respect of any asset of any kind or
nature whatsoever including, without limitation, any conditional sale or other
title retention agreement, any lease having substantially the same economic
effect as any of the foregoing, and the filing of, or agreement to give, any
financing statement under the Uniform Commercial Code or comparable law of any
jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the condition, operations, assets, business or prospects of WOWI taken as a
whole, (b) WOWI's ability to pay the Obligations in accordance with the terms
thereof, (c) the value of the Collateral, or the Secured Party's Liens on the
Collateral or the priority of any such Lien or (d) the practical realization of
the benefits of the Secured Party's rights and remedies under this Agreement or
the Note.
"Note" shall mean that certain Promissory Note, of even date herewith,
in the original principal amount of $3,003,185.27, and issued by WOWI as "maker"
to Secured Party as "payee".
"Obligations" shall mean all amounts owed by WOWI under the Note.
"Permitted Encumbrances" shall mean (a) Liens for taxes, assessments or
other governmental charges not delinquent or being contested in good faith and
by appropriate proceedings and with respect to which proper reserves have been
taken by WOWI; provided, that, the Lien shall have no effect on the priority of
the Liens in favor of the Secured Party or the value of the assets in which the
Secured Party has such a Lien and a stay of enforcement of any such Lien shall
be in effect; (b) judgment Liens that have been stayed or bonded and mechanics',
workers', materialmen's or other like Liens arising in the ordinary course of
WOWI's business with respect to obligations which are not due or which are being
contested in good faith by WOWI; and (c) other Liens incidental to the conduct
of WOWI's business or the ownership of its property and assets which were not
incurred in
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connection with the borrowing of money or the obtaining of advances or credit,
and which do not in the aggregate materially detract from the Secured Party's
rights in and to the Collateral or which do not materially impair the use
thereof in the operation of WOWI's business.
"Termination Date" shall mean the date on which the Obligations are
paid in full.
"Uniform Commercial Code" shall mean the Uniform Commercial Code in
effect in the State of Texas.
ARTICLE II
SECURITY INTEREST
2.1 Security Interest in the Collateral. To secure prompt payment to
Secured Party of the Obligations, WOWI hereby assigns, pledges and grants to the
Secured Party for the benefit of the Secured Party a continuing security
interest in and to all of the Collateral, whether now owned or existing or
hereafter acquired or arising and wheresoever located. WOWI shall xxxx its books
and records as may be necessary or appropriate to evidence, protect and perfect
the Secured Party's security interest and shall cause its financial statements
to reflect such security interest.
2.2 Perfection of Security Interest.
(a) The Secured Party and WOWI, hereby agree as follows:
(i) The Secured Party may at any time and from time
to time file financing statements, continuation statements and
amendments thereto that describe the Collateral and which
contain any other information required for the sufficiency or
filing office acceptance of any financing statements,
continuation statements or amendments. Such financing
statements, continuation statements and amendments thereto may
include generic descriptions of the Collateral and may be
filed by Secured Party without WOWI's signature thereon. WOWI
agrees to furnish any such information to the Secured Party
promptly upon request. Any such financing statements,
continuation statements or amendments may be signed by the
Secured Party on behalf of WOWI.
(ii) WOWI shall, at any time and from time to time
take such steps as the Secured Party may reasonably request in
writing to continue the perfection and priority of the Secured
Party's security interest in any of the Collateral for the
benefit of the Secured Party and of its rights therein, in any
jurisdiction.
(iii) Nothing contained herein shall be construed to
narrow the scope of the Secured Party's security interest in
any of the Collateral or the perfection or priority thereof or
to impair or otherwise limit any of the rights, powers,
privileges or remedies of the Secured Party except (and then
only to the extent) mandated by applicable law.
(b) Contemporaneously herewith, WOWI covenants and agrees to
deliver to the Secured Party any certificates of title, documents or
instruments representing or evidencing the Collateral, with WOWI's
endorsement thereon and/or accompanied by proper
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instruments of transfer and assignment duly executed in blank, all in
form and substance satisfactory to the Secured Party.
2.3 Preservation of Collateral. Following the occurrence of an Event of
Default (as defined in Section 2.15 below), in addition to the rights and
remedies set forth in the Purchase Agreement, the Secured Party: (a) may at any
time take such steps as the Secured Party deems necessary to protect the Secured
Party's interest in and to preserve the Collateral, including the hiring of such
security guards or the placing of other security protection measures as the
Secured Party may deem appropriate; (b) may employ and maintain at WOWI's
premises a custodian who shall have full authority to do all acts necessary to
protect the Secured Party's interests in the Collateral; (c) may lease
facilities to which the Secured Party may move all or part of the Collateral;
and (d) 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 WOWI's
owned or leased property. WOWI shall cooperate fully with all of the Secured
Party's efforts to preserve the Collateral and will take such actions to
preserve the Collateral as the Secured Party may reasonably direct. All of the
Secured Party's expenses of preserving the Collateral, including any expenses
relating to the bonding of a custodian, shall be added as additional principal
to the Note.
2.4 Maintenance. The Collateral shall be kept in good condition and
operating order.
2.5 Ownership of Collateral. WOWI shall be the sole owner of the
Collateral, subject to the security interest granted to Secured Party hereunder,
free from any setoff, claim, restriction, lien, security interest or
encumbrance.
2.6 Defense of the Secured Party's Interests. Until payment in full or
other release of all of the outstanding Obligations, the Secured Party's
interests in the Collateral shall continue in full force and effect. WOWI shall
defend the Secured Party's interests in the Collateral against any and all
Persons whatsoever. At any time following demand by the Secured Party for
payment of all Obligations, the Secured Party shall have the right to take
possession of the indicia of the Collateral and the Collateral in whatever
physical form contained. If the Secured Party exercises this right to take
possession of the Collateral, WOWI shall, upon demand, assemble it in the best
manner possible and make it available to the Secured Party at a place reasonably
convenient to the Secured Party. In addition, with respect to all Collateral,
the Secured Party shall be entitled to all of the rights and remedies set forth
herein and further provided by the Uniform Commercial Code or other applicable
law. WOWI shall, and each of the Secured Party may, at its option, instruct all
suppliers, carriers, forwarders, warehouses or others receiving or holding cash,
checks, Inventory, documents or instruments in which the Secured Party holds a
security interest to deliver same to the Secured Party and/or subject to the
Secured Party's order and if they shall come into WOWI's possession, they, and
each of them, shall be held by WOWI in trust as the Secured Party's trustee, and
WOWI will immediately deliver them to the Secured Party in their original form
together with any necessary endorsement.
2.7 Compliance with Laws. WOWI shall comply with all acts, rules,
regulations and orders of any legislative, administrative or judicial body or
official applicable to the Collateral or any part thereof or to the operation of
WOWI's business the non-compliance with which could reasonably be expected to
have a Material Adverse Effect. WOWI may, however, contest or dispute any acts,
rules, regulations, orders and directions of those bodies or officials in any
reasonable
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manner, provided that any related Lien is inchoate or stayed and sufficient
reserves are established to the reasonable satisfaction of the Secured Party to
protect the Secured Party's Lien on or security interest in the Collateral. The
Collateral at all times shall be maintained in accordance with the requirements
of all insurance carriers which provide insurance with respect to the Collateral
so that such insurance shall remain in full force and effect.
2.8 Inspection of Premises. At all reasonable times the Secured Party
shall have full access to and the right to audit, check, inspect and make
abstracts and copies from WOWI's books, records, audits, correspondence and all
other papers relating to the Collateral and the operation of WOWI's business.
The Secured Party and its agents may upon reasonable advance notice, enter upon
WOWI's and its subsidiaries' premises at any time during business hours and at
any other reasonable time, and from time to time, for the purpose of inspecting
the Collateral and any and all records pertaining thereto and the operation of
WOWI's business, provided, however, the Secured Party shall conduct such
inspections no more than one (1) time per year unless an Event of Default shall
have occurred and be continuing, in which event there shall be no restrictions
on the number of inspections the Secured Party may charge WOWI.
2.9 Insurance. WOWI shall bear the full risk of any loss of any nature
whatsoever with respect to the Collateral. At WOWI's own cost and expense, as
applicable, in amounts and with carriers reasonably acceptable to the Secured
Party, WOWI shall (a) keep the Collateral insured, as is customary in the case
of companies engaged in businesses similar to that of WOWI; (b) furnish the
Secured Party with (i) copies of all policies and evidence of the maintenance of
such policies by the renewal thereof at least thirty (30) days before any
expiration date, and (ii) appropriate loss payable endorsements in form and
substance satisfactory to the Secured Party, naming the Secured Party as a
co-insured and loss payee as its interests may appear with respect to all
insurance coverage referred to in clause (a) above, and providing (A) that all
proceeds thereunder shall be payable to the Secured Party, (B) no such insurance
shall be affected by any act or neglect of the insured or owner of the property
described in such policy, and (C) that such policy and loss payable clauses may
not be cancelled, amended or terminated unless at least thirty (30) days' prior
written notice is given to the Secured Party. In the event of any loss
thereunder, the carriers named therein hereby are directed by the Secured Party,
WOWI to make payment for such loss that would ordinarily be made payable to WOWI
rather than to a third party to the Secured Party and not to WOWI and the
Secured Party jointly. If any insurance losses are paid by check, draft or other
instrument payable to WOWI and the Secured Party jointly, the Secured Party may
endorse WOWI's name thereon and do such other things as the Secured Party may
deem advisable to reduce the same to cash. The Secured Party is hereby
authorized to adjust and compromise claims under insurance coverage referred to
in clauses (a) and (b) above. All loss recoveries received by the Secured Party
upon any such insurance may be applied to the Obligations, in such order as the
Secured Party in its sole discretion shall determine. Any surplus shall be paid
by the Secured Party to WOWI, or applied as may be otherwise required by law.
Any deficiency thereon shall be paid by WOWI to the Secured Party, on demand.
2.10 Failure to Pay Insurance. If WOWI fails to obtain insurance as
hereinabove provided, or to keep the same in force, the Secured Party, if the
Secured Party so elect, may obtain such insurance and pay the premium therefor
and such expenses so paid shall be part of the Obligations.
2.11 Payment of Taxes. WOWI will pay, when due, all taxes, assessments
and other Charges lawfully levied or assessed upon WOWI or any of the Collateral
including, without
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limitation, real and personal property taxes, assessments and charges and all
franchise, income, employment, social security benefits, withholding, and sales
taxes. If any tax by any governmental authority is or may be imposed on or as a
result of any transaction between WOWI and the Secured Party which the Secured
Party may be required to withhold or pay or if any taxes, assessments, or other
Charges remain unpaid after the date fixed for their payment, or if any claim
shall be made which, in the Secured Party's opinion, may possibly create a valid
Lien on the Collateral, the Secured Party may without notice to WOWI pay the
taxes, assessments or other Charges and each of WOWI hereby indemnifies and
holds the Secured Party harmless in respect thereof. The Secured Party will not
pay any taxes, assessments or Charges to the extent that WOWI has contested or
disputed those taxes, assessments or Charges in good faith, by expeditious
protest, administrative or judicial appeal or similar proceeding provided that
any related tax lien is stayed and sufficient reserves are established to the
reasonable satisfaction of the Secured Party to protect the Secured Party's
security interest in or Lien on the Collateral. The amount of any payment by the
Secured Party under this Section 2.11 shall be added to the Obligations and,
until WOWI shall furnish the Secured Party with an indemnity therefor (or supply
the Secured Party with evidence satisfactory to the Secured Party that due
provision for the payment thereof has been made), the Secured Party may hold
without interest any balance standing to WOWI's credit and the Secured Party
shall retain its security interest in any and all Collateral held by the Secured
Party.
2.12 Exculpation of Liability. Nothing herein contained shall be
construed to constitute the Secured Party as WOWI's agent for any purpose
whatsoever, nor shall the Secured Party be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof. The
Secured Party, whether by anything herein or in any assignment or otherwise,
does not assume WOWI's obligations under any contract or agreement assigned to
the Secured Party, and the Secured Party shall not be responsible in any way for
the performance by WOWI of any of the terms and conditions thereof.
2.13 Financing Statements. No financing statement covering any of the
Collateral or any proceeds thereof is on file in any public office.
2.14 Disposition of Collateral. No Collateral may be sold, leased or
otherwise disposed of by WOWI outside the ordinary course of business, without
the prior written consent of Secured Party.
2.15 Event of Default. An Event of Default shall be as defined in the
Note.
2.16 Rights and Remedies. If any Event of Default shall occur, then, in
each and every such case, Secured Party may, at any time thereafter exercise
and/or enforce any of the following rights and remedies, at Secured Party's
option: (a) take possession or control of, store, lease, sell or otherwise
dispose of, all or any part of the Collateral; (b) take any other action which
the Secured Party deems necessary or desirable to protect and realize upon its
security interest in the Collateral; and (c) in addition to the foregoing, and
not in substitution therefor, exercise any one or more of the rights and
remedies exercisable by Secured Party under any other provisions of this
Agreement, or as provided by applicable law (including, without limitation, the
Uniform Commercial Code as in effect in the jurisdiction in which the Collateral
is located (hereinafter referred to as the "UCC"). In taking possession of the
Collateral, Secured Party may enter the WOWI's premises and otherwise proceed
without legal process, if this can be done without breach of the peace. WOWI
shall, upon Secured
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Party's demand, promptly make the Collateral or other security available to
Secured Party at a place designated by the Secured Party, which place shall be
reasonably convenient to both parties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
WOWI represents and warrants as follows:
3.1 WOWI has full power, authority and legal right to grant to the
Secured Party a security interest in the Collateral pursuant to this Agreement,
and the execution and delivery of this Agreement has been duly authorized by
WOWI.
3.2 No authorization, approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for the
grant by WOWI to the Secured Party of a security interest in the Collateral
pursuant to this Agreement or for the execution, delivery or performance of this
Agreement by WOWI.
3.3 No part of the Collateral is used or was bought for personal,
family or household purposes.
ARTICLE IV
LIABILITY AND INDEMNIFICATION
WOWI agrees to indemnify and to hold the Secured Party harmless from
and against all losses, liabilities, claims, damages, costs and expenses
(including actual attorneys' fees and disbursements) with respect to (a) any
action taken or any omission by the Secured Party with respect to this
Agreement, provided that the Secured Party's conduct does not constitute willful
misconduct or gross (not mere) negligence, and (b) any claims arising out of
Secured Party's security interest in the Collateral.
ARTICLE V
CONTINUING SECURITY INTEREST, ASSIGNMENT OF OBLIGATIONS
This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until payment in full
of the Obligations, (b) be binding upon WOWI and its successors and assigns, (c)
inure, together with the rights and remedies of the Secured Party hereunder, to
the benefit of the Secured Party and its successors, transferees and assigns,
(d) constitute, along with the Purchase Agreement, the Note and the other
agreements and instruments relating thereto, the entire agreement between WOWI
and the Secured Party, and (e) be severable in the event that one or more of the
provisions herein is determined to be illegal or unenforceable. Upon the payment
in full of the Obligations, the Secured Party, at the request and expense of
WOWI, as the case may be, shall release the security interests in the Collateral
granted herein and execute such termination statements as may be necessary
therefor, to the extent that such Collateral shall not have been sold or
otherwise applied pursuant to the terms hereof.
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ARTICLE VI
RETURN OF COLLATERAL
Subject to any duty imposed by law or otherwise to the holder of any
subordinate lien on the Collateral known to the Secured Party, and subject to
the direction of a court of competent jurisdiction, upon the payment in full of
the Obligations, WOWI shall be entitled to the return of all Collateral in the
possession of the Secured Party, provided, however, that (a) the Secured Party
shall not be obligated to return to WOWI or deliver to the holder of any
subordinate lien any such Collateral until they are satisfied that all amounts
with respect to the Obligations are no longer subject to being recaptured under
applicable bankruptcy or insolvency laws or otherwise and (b) if the Secured
Party determines not to return Collateral in its possession (pursuant to clause
(a) of this Article VI), the Secured Party shall turn over such possessory
Collateral, upon the reasonable request of WOWI, as the case may be, and upon
WOWI's grant of a second priority security interest in the possessory
Collateral, as the case may be, to a replacement lender which requires a first
priority interest in the possessory Collateral. Any return or turn over of
Collateral, however effected, shall be without recourse to the Secured Party,
and the Secured Party shall be entitled to receive appropriate documentation to
such effect. The return of Collateral shall be affected without representation
or warranty and shall not entitle WOWI to any right to any endorsement.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment; Waiver. No amendment or waiver of any provision of this
Agreement nor consent to any departure by WOWI herefrom shall in any event be
effective unless the same shall be in writing and signed by the Secured Party,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
7.2 Expenses. WOWI will upon demand pay to the Secured Party the amount
of any and all reasonable expenses actually incurred, including the fees and
expenses of its counsel and of any experts and agents, which the Secured Party
may incur in connection with (a) the administration of this Agreement, (b) the
custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (c) the exercise or enforcement of any
of the rights of the Secured Party hereunder, and (d) the failure by WOWI to
perform or observe any of the provisions hereof.
7.3 Notices. All notices, demands and requests of any kind which either
party may be required or desires to serve upon the other hereunder shall be in
writing and shall be delivered and be effective in accordance with the notice
provision of the Purchase Agreement.
7.4 Governing Law, Terms. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Texas without regard to
its choice of laws principles. Unless otherwise defined herein or in the
Purchase Agreement, terms defined in the Uniform Commercial Code are used herein
as therein defined.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
WOWI ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx, President
WORLD OF OUTLAWS, INC.
By: /s/ Xxx Xxxxxxx
------------------------------
Name: Xxx Xxxxxxx, President
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