SECURITY AGREEMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned
INTERACTIVE TELEVISION NETWORKS, INC., a Nevada corporation ("Debtor"), hereby
grants and transfers to PENTAGON BERNINI FUND, LTD., an international business
company organized under the laws of the British Virgin Islands ("Secured
Party"), a security interest in all of the property of Debtor described as
follows (collectively, the "Collateral"):
(a) all accounts, deposit accounts, contract rights, chattel paper,
instruments, documents, general intangibles and other rights to payment of every
kind now existing or at any time hereafter arising;
(b) all inventory, goods held for sale or lease or to be furnished
under contracts for service, or goods so leased or furnished, raw materials,
component parts, work in process and other materials used or consumed in
Debtor's business, now or at any time hereafter owned or acquired by Debtor,
wherever located, and all products thereof, whether in the possession of Debtor,
any warehousemen, any bailee or any other person, or in process of delivery, and
whether located at Debtor's places of business or elsewhere;
(c) all warehouse receipts, bills of sale, bills of lading and other
documents of every kind (whether or not negotiable) in which Debtor now has or
at any time hereafter acquires any interest, and all additions and accessions
thereto, whether in the possession or custody of Debtor, any bailee or any other
person for any purpose;
(d) all money and property heretofore, now or hereafter delivered to
or deposited with Secured Party or otherwise coming into the possession, custody
or control of Secured Party (or any agent or bailee of Secured Party) in any
manner or for any purpose whatsoever during the existence of this Agreement and
whether held in a general or special account or deposit for safekeeping or
otherwise;
(e) all right, title and interest of Debtor under licenses,
guaranties, warranties, management agreements, marketing or sales agreements,
escrow contracts, indemnity agreements, insurance policies, service agreements,
maintenance agreements and other similar contracts of every kind in which Debtor
now has or at any time hereafter shall have an interest;
(f) all Debtor's goods, tools, machinery, furnishings, furniture and
other equipment and fixtures of every kind now existing or hereafter acquired,
and improvements, replacements, accessions and additions thereto, whether
located on any property owned or leased by Debtor or elsewhere, including
without limitation, any of the foregoing now or at any time hereafter located at
or installed on any real property owned or leased by Debtor, and all such goods
after they have been severed and removed from any of said real property; and
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(g) all Debtor's motor vehicles, trailers, mobile homes, boats,
other rolling stock and related equipment of every kind now existing or
hereafter acquired and all additions and accessories thereto, whether located on
any property owned or leased by Debtor or elsewhere; together with whatever is
receivable or received when any of the foregoing or the proceeds thereof are
sold, leased, collected, exchanged or otherwise disposed of, whether such
disposition is voluntary or involuntary, including without limitation, all
rights to payment, including returned premiums, with respect to any insurance
relating to any of the foregoing, and all rights to payment with respect to any
cause of action affecting or relating to any of the foregoing (collectively,
"Proceeds").
2. OBLIGATIONS SECURED. The obligations secured hereby (collectively, the
"Secured Obligations") are the payment and performance of all present and future
obligations of Debtor under : (a) Debtor's 17% Secured Convertible Debenture due
October 1, 2008, in the aggregate principal amount of $4,000,000.00 (the
"Debentures"); (b) that certain Warrant to Purchase Common Stock dated October
20, 2005, issued by Debtor (the "Warrants"); (c) that certain Securities
Purchase Agreement dated as of October 20, 2005, between Debtor and Secured
Party (the "Purchase Agreement") relating to Debtor's issuance of the Debentures
and the Warrants; (d) that certain Registration Rights Agreement dated as of
October 20, 2005, between Debtor and Secured Party; (e) this Agreement; and (f)
any other existing or future agreement made by Debtor for the benefit of Secured
Party that is evidenced by a writing stating that it is secured by this
Agreement.
3. CONTINUING AGREEMENT; REVOCATION; OBLIGATION UNDER OTHER AGREEMENTS;
TERMINATION. This is a continuing agreement, and all rights, powers and remedies
hereunder shall apply to all present and future Secured Obligations, including
those arising under successive transactions that either continue the Secured
Obligations, increase or decrease them, or from time to time create new Secured
Obligations after all or any prior Secured Obligations have been satisfied, and
notwithstanding the dissolution, liquidation or bankruptcy of Debtor or any
other event or proceeding affecting Debtor. This Agreement shall not apply to
any new Secured Obligations created after actual receipt by Secured Party of
written notice of its revocation as to such new Secured Obligations; provided
however, that Secured Obligations arising after revocation under agreements
existing prior to receipt by Secured Party of such revocation, and extensions,
renewals or modifications of Secured Obligations existing prior to receipt by
Secured Party of such revocation, shall
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not be considered new Secured Obligations. Any such notice must be sent to
Secured Party by registered U.S. mail, postage prepaid, addressed to its
office, at
If to the Secured Party:
Pentagon Bernini Fund, Ltd.
c/o Pentagon Capital Management Plc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone No.: ▇▇▇ (▇)▇▇ ▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇ (▇)▇▇ ▇▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
With a copy to:
Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire
or at such other address as Secured Party shall from time to time designate. The
obligations of Debtor hereunder shall be in addition to any obligations of
Debtor under any other grants or pledges of security for any liabilities or
obligations of Debtor or any other person or entity heretofore or hereafter
given to Secured Party unless said other grants or pledges of security are
expressly modified or revoked in writing; and this Agreement shall not, unless
expressly herein provided, affect or invalidate any such other grants or pledges
of security. This Agreement will terminate upon the payment and performance of
all of the Secured Obligations, and the termination of all commitments, if any,
of Secured Party to extend credit to Debtor existing at the time Secured Party
receives written notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS JOINT AND SEVERAL; SEPARATE ACTIONS; WAIVER OF STATUTE OF
LIMITATIONS; REINSTATEMENT OF LIABILITY. If more than one person or entity has
signed this Agreement as a Debtor, the obligations of each Debtor hereunder are
joint and several and independent of the obligations of each other Debtor, and a
separate action or actions may be brought and prosecuted against any Debtor
whether action is brought against any other Debtor or any other person or
entity, or whether such other Debtor or any other person or entity is joined in
any such action or actions. Each Debtor acknowledges that this Agreement is
absolute and unconditional, there are no conditions precedent to the
effectiveness of this Agreement, and this Agreement is in full force and effect
and is binding on such Debtor as of the date written below, regardless of
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whether Secured Party obtains collateral or any guaranties from others or takes
any other action contemplated by such Debtor. Each Debtor waives the benefit of
any statute of limitations affecting such Debtor's liability hereunder or the
enforcement thereof, and each Debtor agrees that any payment of any Secured
Obligations or other act which tolls any statute of limitations applicable
thereto shall similarly operate to toll such statute of limitations with respect
to such Debtor's liability hereunder. The liability of each Debtor hereunder
shall be reinstated and revived, and the rights of Secured Party shall continue,
if and to the extent that for any reason any amount at any time paid on account
of any Secured Obligation is rescinded or must be otherwise restored by Secured
Party, whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, all as though such amount had not been paid. The determination as to
whether any amount so paid must be rescinded or restored shall be made by
Secured Party in its sole discretion; provided however, that if Secured Party
chooses to contest any such matter at the request of a Debtor, such Debtor
agrees to indemnify and hold Secured Party harmless from and against all costs
and expenses, including without limitation reasonable attorneys' fees, expended
or incurred by Secured Party in connection therewith, including without
limitation, in any litigation with respect thereto.
5. OBLIGATIONS OF SECURED PARTY. Secured Party has no obligation to make
any loans hereunder. Any money received by Secured Party in respect of the
Collateral may be deposited, at Secured Party's option, into a non-interest
bearing account over which Debtor shall have no control, and the same shall, for
all purposes, be deemed Collateral hereunder.
6. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Secured Party that: (a) Debtor is the owner and has possession or control of the
Collateral and Proceeds; (b) Debtor has the right to grant a security interest
in the Collateral and Proceeds; (c) all Collateral and Proceeds are genuine,
free from liens, adverse claims, setoffs, default, prepayment, defenses and
conditions precedent of any kind or character, except the lien created hereby,
liens heretofore disclosed by Debtor to Secured Party, in writing, or liens
otherwise agreed to by Secured Party; (d) all statements contained herein and,
where applicable, in the Collateral are true and complete in all material
respects; (e) no financing statement covering any of the Collateral or Proceeds,
and naming any secured party other than Secured Party, is on file in any public
office; (f) where Collateral consists of rights to payment, all persons
appearing to be obligated on the Collateral and Proceeds have authority and
capacity to contract and are bound as they appear to be, all property subject to
chattel paper has been properly registered and filed in compliance with law and
to perfect the interest of Debtor in such property, and all such Collateral and
Proceeds comply with all applicable laws concerning form, content and manner of
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preparation and execution; and (g) where the Collateral consists of equipment,
Debtor is not in the business of selling goods of the kind included within such
Collateral, and Debtor acknowledges that no sale of any such Collateral,
including without limitation, any such Collateral which Debtor may deem to be
surplus, has been consented to or acquiesced in by Secured Party, except as
specifically set forth in writing by Secured Party.
7. COVENANTS OF DEBTOR.
(a) Debtor agrees in general: (i) to pay the Secured Obligations
when due; (ii) to indemnify Secured Party against all losses, claims, demands,
liabilities and expenses of every kind caused by property subject hereto, except
to the extent such losses are caused by Secured Party's willful misconduct or
gross negligence; (iii) to pay all costs and expenses, including without
limitation reasonable attorneys' fees, incurred by Secured Party in the
perfection and preservation of the Collateral or Secured Party's interest
therein and/or the realization, enforcement and exercise of Secured Party's
rights, powers and remedies hereunder; (iv) to permit Secured Party to exercise
its powers; (v) to execute and deliver such documents as Secured Party deems
necessary to create, perfect and continue the security interests contemplated
hereby; and (vi) not to change its jurisdiction of formation, chief place of
business or the places where Debtor keeps any of the Collateral or Debtor's
records concerning the Collateral and Proceeds without first giving Secured
Party written notice of the address to which Debtor is moving same.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless
Secured Party agrees otherwise in writing: (i) where applicable, to insure the
Collateral with Secured Party as loss payee, in form, substance and amounts,
under agreements, against risks and liabilities, and with insurance companies
satisfactory to Secured Party; (ii) where applicable, to operate the Collateral
in accordance with all applicable statutes, rules and regulations relating to
the use and control thereof, and not to use any Collateral for any unlawful
purpose or in any way that would void any insurance required to be carried in
connection therewith; (iii) not to remove the Collateral from Debtor's premises,
except (A) for deliveries to buyers in the ordinary course of Debtor's business
and (B) Collateral which consists of mobile goods, in which case Debtor agrees
not to remove or permit the removal of such Collateral from its state of
domicile for a period in excess of thirty (30) calendar days; (iv) to pay when
due all license fees, registration fees and other charges in connection with any
Collateral; (v) not to permit any lien on the Collateral or Proceeds, including
without limitation, liens arising from repairs to or storage of the Collateral,
except in favor of Secured Party; (vi) not to sell, hypothecate or dispose of,
nor permit the transfer by operation of law of, any of the Collateral or
Proceeds or any interest therein, except sales of inventory to buyers in the
ordinary course of Debtor's business; (vii) to permit Secured Party to inspect
the Collateral at any time; (viii) to keep, in accordance with generally
accepted accounting principles, complete and accurate records regarding all
Collateral and Proceeds, and to permit Secured Party to inspect the same and
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make copies thereof at any reasonable time; (ix) if requested by Secured Party,
to receive and use reasonable diligence to collect Collateral consisting of
accounts and other rights to payment and Proceeds, in trust and as the property
of Secured Party, and to immediately endorse as appropriate and deliver such
Collateral and Proceeds to Secured Party daily in the exact form in which they
are received together with a collection report in form satisfactory to Secured
Party; (x) not to commingle Collateral or Proceeds, or collections thereunder,
with other property; (xi) to give only normal allowances and credits and to
advise Secured Party thereof immediately in writing if they affect any rights to
payment or Proceeds in any material respect; (xii) from time to time, when
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; (xiii) in the event Secured
Party elects to receive payments of rights to payment or Proceeds hereunder, to
pay all expenses incurred by Secured Party in connection therewith, including
without limitation expenses of accounting, correspondence, collection efforts,
reporting to account or contract debtors, filing, recording, record keeping and
expenses incidental thereto; and (xiv) to provide any service and do any other
acts which may be necessary to maintain, preserve and protect all Collateral
and, as appropriate and applicable, to keep all Collateral in good and saleable
condition, to deal with the Collateral in accordance with the standards and
practices adhered to generally by users and manufacturers of like property, and
to keep all Collateral and Proceeds free and clear of all defenses, rights of
offset and counterclaims.
8. POWERS OF SECURED PARTY. Debtor appoints Secured Party its true
attorney in fact to perform any of the following powers, which are coupled with
an interest, are irrevocable until termination of this Agreement and may be
exercised from time to time by Secured Party's officers and employees, or any of
them, whether or not Debtor is in default: (a) to perform any obligation of
Debtor hereunder in Debtor's name or otherwise; (b) after an Event of Default
(as defined in Section 12 hereof) has occurred, to give notice to account
debtors or others of Secured Party's rights in the Collateral and Proceeds, to
enforce the same and make extension agreements with respect thereto; (c) after
an Event of Default has occurred, to release persons liable on Collateral or
Proceeds and to give receipts and acquittances and compromise disputes in
connection therewith; (d) to release security; (e) to resort to security in any
order; (f) to prepare, execute, file, record or deliver notes, assignments,
schedules, designation statements, financing statements, continuation
statements, termination statements, statements of assignment, applications for
registration or like papers to perfect, preserve or release Secured Party's
interest in the Collateral and Proceeds; (g) after an Event of Default has
occurred, to receive, open and read mail addressed to Debtor; (h) to take cash,
instruments for the payment of money and other property to which Secured Party
is entitled; (i) after an Event of Default has occurred, to verify facts
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concerning the Collateral and Proceeds by inquiry of obligors thereon, or
otherwise, in its own name or a fictitious name; (j) after an Event of Default
has occurred, to endorse, collect, deliver and receive payment under instruments
for the payment of money constituting or relating to Proceeds; (k) to prepare,
adjust, execute, deliver and receive payment under insurance claims, and to
collect and receive payment of and endorse any instrument in payment of loss or
returned premiums or any other insurance refund or return, and to apply such
amounts received by Secured Party, where appropriate, toward repair or
replacement of the Collateral, or, if Secured Party determines in good faith
that the amount of such insurance proceeds (together with any additional amounts
deposited with Secured Party) is insufficient to restore the Collateral to its
value and condition prior to the loss, or that such restoration or replacement
cannot be completed prior to the maturity date of the Secured Obligations
secured hereby, or that its security interest in the Collateral will likely be
impaired despite any such repair or replacement, toward repayment of the Secured
Obligations; (l) to exercise all rights, powers and remedies which Debtor would
have, but for this Agreement, with respect to all Collateral and Proceeds
subject hereto; (m) to enter onto Debtor's premises in inspecting the
Collateral; (n) after an Event of Default has occurred, to make withdrawals from
and to close deposit accounts or other accounts with any financial institution,
wherever located, into which Proceeds may have been deposited, and to apply
funds so withdrawn to payment of the Secured Obligations; (o) to preserve or
release the interest evidenced by chattel paper to which Secured Party is
entitled hereunder and to endorse and deliver evidences of title incidental
thereto; and (p) to do all acts and things and execute all documents in the name
of Debtor or otherwise, deemed by Secured Party as necessary, proper and
convenient in connection with the preservation, perfection or enforcement of its
rights hereunder.
9. EACH DEBTOR'S WAIVERS REGARDING SECURED OBLIGATIONS OF OTHER DEBTORS.
With respect to the Secured Obligations of each Debtor to Secured Party secured
hereby:
(a) Each other Debtor waives any right to require Secured Party to:
(i) proceed against Debtor or any other person or entity; (ii) marshal assets or
proceed against or exhaust any security held from Debtor or any other person or
entity; (iii) give notice of the terms, time and place of any public or private
sale of personal property security held from Debtor or any other person or
entity, or otherwise comply with the provisions of the applicable Uniform
Commercial Code or any successor provision; (iv) take any action or pursue any
other remedy in Secured Party's power; or (v) make any presentment or demand for
performance, or give any notice of nonperformance, protest, notice of protest or
notice of dishonor hereunder or in connection with any obligations or evidences
of Secured Obligations held by Secured Party as security for or which constitute
in whole or in part the Secured Obligations secured hereunder, or in connection
with the creation of new or additional Secured Obligations.
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(b) Each Debtor waives any defense to its obligations hereunder
based upon or arising by reason of: (i) any disability or other defense of each
other Debtor or any other person or entity; (ii) the cessation or limitation
from any cause whatsoever, other than payment in full, of the Secured
Obligations of each other Debtor or any other person or entity; (iii) any lack
of authority of any officer, director, partner, agent or any other person or
entity acting or purporting to act on behalf of any other Debtor, or any defect
in the formation of any other Debtor; (iv) the application by any other Debtor
of the proceeds of any Secured Obligations for purposes other than the purposes
represented by such other Debtor to, or intended or understood by, Secured Party
or Debtor; (v) any act or omission by Secured Party which directly or indirectly
results in or aids the discharge of any other Debtor or any portion of the
Secured Obligations by operation of law or otherwise, or which in any way
impairs or suspends any rights or remedies of Secured Party against any other
Debtor; (vi) any impairment of the value of any interest in security for the
Secured Obligations of any other Debtor to Secured Party or any portion thereof,
including without limitation, the failure to obtain or maintain perfection or
recordation of any interest in any such security, the release of any such
security without substitution, and/or the failure to preserve the value of, or
to comply with applicable law in disposing of, any such security; (vii) any
modification of the Secured Obligations of any other Debtor to Secured Party, in
any form whatsoever, including without limitation any modification made after
revocation hereof to any Secured Obligations of such other Debtor to Secured
Party incurred prior to such revocation, and including without limitation the
renewal, extension, acceleration or other change in time for payment of, or
other change in the terms of, the Secured Obligations or any portion thereof,
including without limitation increase or decrease of the rate of interest
thereon; or (viii) or any requirement that Secured Party give any notice of
acceptance of this Agreement. Until all Secured Obligations of all Debtors to
Secured Party shall have been paid in full, no Debtor shall have any right of
subrogation, and each Debtor waives any right to enforce any remedy which
Secured Party now has or may hereafter have against any other Debtor or any
other person or entity and waives any benefit of, or any right to participate
in, any security now or hereafter held by Secured Party. Debtor further waives
all rights and defenses Debtor may have arising out of (A) any election of
remedies by Secured Party, even though that election of remedies, such as a
non-judicial foreclosure with respect to any security for any portion of the
Secured Obligations, destroys Debtor's rights of subrogation or Debtor's rights
to proceed against any other Debtor for reimbursement, or (B) any loss of rights
Debtor may suffer by reason of any rights, powers or remedies of any other
Debtor in connection with any anti-deficiency laws or any other laws limiting,
qualifying or discharging such other Debtor's Secured Obligations, including
without limitation any rights a Debtor may have to a fair market value hearing
to determine the size of a deficiency following any foreclosure sale or other
disposition of any security for any portion of the Secured Obligations of any
Debtor to Secured Party.
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10. AUTHORIZATIONS TO SECURED PARTY REGARDING SECURED OBLIGATIONS OF OTHER
DEBTORS TO SECURED PARTY. With respect to the Secured Obligations of any Debtor
to Secured Party, each other Debtor authorizes Secured Party, either before or
after revocation hereof, without notice to or demand on such Debtor, and without
affecting such Debtor's liability hereunder, from time to time to: (a) alter,
compromise, renew, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of, the Secured Obligations of any other
Debtor to Secured Party or any portion thereof, including without limitation
increase or decrease of the rate of interest thereon; (b) take and hold
security, other than the Collateral and Proceeds, for the payment of the Secured
Obligations of any Debtor to Secured Party or any portion thereof, and exchange,
enforce, waive, subordinate or release the Collateral and Proceeds, or any part
thereof, or any such other security; (c) after an Event of Default has occurred,
apply the Collateral and Proceeds or such other security and direct the order or
manner of sale thereof, including without limitation, a non-judicial sale
permitted by the terms of the controlling security agreement, mortgage or deed
of trust, as Secured Party in its discretion may determine; (d) release or
substitute any one or more of the endorsers or guarantors of the Secured
Obligations of any Debtor to Secured Party, or any portion thereof, or any other
party thereto; and (e) apply payments received by Secured Party from any Debtor
to any Secured Obligations of such Debtor to Secured Party, in such order as
Secured Party shall determine in its sole discretion, whether or not such
Secured Obligations is covered by this Agreement, and each Debtor hereby waives
any provision of law regarding application of payments which specifies
otherwise.
11. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor
agrees to pay, prior to delinquency, all insurance premiums, taxes, charges,
liens and assessments against the Collateral and Proceeds, and upon the failure
of Debtor to do so, Secured Party at its option may pay any of them and shall be
the sole judge of the legality or validity thereof and the amount necessary to
discharge the same. Any such payments made by Secured Party shall be obligations
of Debtor to Secured Party, due and payable immediately upon demand, together
with interest at a rate determined in accordance with the provisions of Section
18 hereof, and shall be secured by the Collateral and Proceeds, subject to all
terms and conditions of this Agreement.
12. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "Event of Default" under this Agreement: (a) any default in the
payment or performance of any obligation (after giving effect to any applicable
grace or cure period), or any defined event of default, under (i) the
Debentures, the Warrants, the Purchase Agreement, the Registration Rights
Agreement or any other contract or instrument evidencing any Secured
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Obligations, or (ii) any other agreement between any Debtor and Secured Party
relating to or executed in connection with any Secured Obligations; (b) any
representation or warranty made by any Debtor herein shall prove to be
incorrect, false or misleading in any material respect when made; (c) any Debtor
shall fail to observe or perform any obligation or agreement contained herein;
(d) any attachment or like levy on any property of any Debtor; and (e) Secured
Party, in good faith, believes 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.
13. REMEDIES. Upon the occurrence of any Event of Default, Secured Party
shall have the right to declare immediately due and payable all or any Secured
Obligations secured hereby and to terminate any commitments to extend credit to
Debtor. Secured Party shall have all other rights, powers, privileges and
remedies granted to a secured party upon default under the New York Uniform
Commercial Code or otherwise provided by law, including without limitation, the
right to contact all persons obligated to Debtor on any Collateral or Proceeds
and to instruct such persons to deliver all Collateral and/or Proceeds directly
to Secured Party. All rights, powers, privileges and remedies of Secured Party
shall be cumulative. No delay, failure or discontinuance of Secured Party in
exercising any right, power, privilege or remedy hereunder shall affect or
operate as a waiver of such right, power, privilege or remedy; nor shall any
single or partial exercise of any such right, power, privilege or remedy
preclude, waive or otherwise affect any other or further exercise thereof or the
exercise of any other right, power, privilege or remedy. Any waiver, permit,
consent or approval of any kind by Secured Party of any default hereunder, or
any such waiver of any provisions or conditions hereof, must be in writing and
shall be effective only to the extent set forth in writing. It is agreed that
public or private sales, for cash or on credit, to a wholesaler or retailer or
investor or user of property of the types subject to this Agreement, or public
auction, are all commercially reasonable since differences in the sales prices
generally realized in the different kinds of sales are ordinarily offset by the
differences in the costs and credit risks of such sales. While an Event of
Default exists: (a) Debtor will deliver to Secured Party from time to time, as
requested by Secured Party, current lists of all Collateral and Proceeds; (b)
Debtor will not dispose of any of the Collateral or Proceeds except on terms
approved by Secured Party; (c) at Secured Party's request, Debtor will assemble
and deliver all Collateral and Proceeds, and books and records pertaining
thereto, to Secured Party at a reasonably convenient place designated by Secured
Party; and (d) Secured Party may, without notice to Debtor, enter onto Debtor's
premises and take possession of the Collateral. With respect to any sale by
Secured Party of any Collateral subject to this Agreement, Debtor hereby
expressly grants to Secured Party the right to sell such Collateral using any or
all of Debtor's trademarks, trade names, trade name rights and/or proprietary
labels or marks.
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14. DISPOSITION OF COLLATERAL AND PROCEEDS. Upon the transfer of all or
any part of the Secured Obligations, Secured Party may transfer all or any part
of the Collateral or Proceeds and shall be fully discharged thereafter from all
liability and responsibility with respect to any of the foregoing so
transferred, and the transferee shall be vested with all rights and powers of
Secured Party hereunder with respect to any of the foregoing so transferred; but
with respect to any Collateral or Proceeds not so transferred, Secured Party
shall retain all rights, powers, privileges and remedies herein given. Any
proceeds of any disposition of any of the Collateral or Proceeds, or any part
thereof, may be applied by Secured Party to the payment of expenses incurred by
Secured Party in connection with the foregoing, including reasonable attorneys'
fees, and the balance of such proceeds may be applied by Secured Party toward
the payment of the Secured Obligations in such order of application as Secured
Party may from time to time elect.
15. STATUTE OF LIMITATIONS. Until all Secured Obligations have been paid
in full and all commitments, if any, by Secured Party to extend credit to any
Debtor have been terminated, the power of sale and all other rights, powers,
privileges and remedies granted to Secured Party hereunder shall continue to
exist and may be exercised by Secured Party at any time and from time to time
irrespective of the fact that the Secured Obligations or any part thereof may
have become barred by any statute of limitations, or that the personal liability
of Debtor may have ceased, unless such liability shall have ceased due to the
payment in full of all Secured Obligations.
16. MISCELLANEOUS. (a) Each Debtor hereby waives any right (i) to require
Secured Party to make any presentment or demand, or give any notice of
nonpayment or nonperformance, protest, notice of protest or notice of dishonor
hereunder, (ii) to direct the application of payments or security for any
Secured Obligations of any Debtor, or Secured Obligations of customers of any
Debtor, or (iii) to require proceedings against others or to require exhaustion
of security; and (b) Debtor hereby consents to extensions, forbearances or
alterations of the terms of Secured Obligations, the release or substitution of
security, and the release of any guarantors. Until all Secured Obligations shall
have been paid in full, no Debtor shall have any right of subrogation or
contribution, and each Debtor hereby waives any benefit of or right to
participate in any of the Collateral or Proceeds or any other security now or
hereafter held by Secured Party.
17. NOTICES. All notices, requests and demands required under this
Agreement must be in writing, addressed to Secured Party at the address
specified in Section 3 hereof and to Debtor at the address of its chief
executive office specified below or to such other address as any party may
designate by written notice to each other party, and shall be deemed to have
been given or made as follows: (a) if personally delivered, upon delivery; (b)
if sent by mail, upon the earlier of the date of receipt or three (3) days after
deposit in the U.S. mail, first class and postage prepaid; and (c) if sent by
telecopy, upon receipt.
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18. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Secured Party
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including without limitation reasonable attorneys' fees (to
include outside counsel fees and all allocated costs of Secured Party's in-house
counsel), expended or incurred by Secured Party in exercising any right, power,
privilege or remedy conferred by this Agreement or in the enforcement thereof,
whether incurred at the trial or appellate level, in an arbitration proceeding
or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Secured Party or any other person or
entity) relating to Debtor or in any way affecting any of the Collateral or
Secured Party's ability to exercise any of its rights or remedies with respect
thereto. All of the foregoing shall be paid by Debtor with interest from the
date of demand until paid in full at a rate per annum equal to ten percent
(10%).
19. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties (subject to any
limitations on transfer set forth in the Purchase Agreement, the Debentures or
the Warrants), and may be amended or modified only in writing signed by Secured
Party and Debtor.
20. SEVERABILITY OF PROVISIONS. If any provision of this Agreement is held
to be prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or any remaining provisions of this
Agreement.
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, County of New York,
applicable to contracts made and to be performed in the State of New York.
Debtor warrants that its chief executive office is located at the
following address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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Debtor warrants that the Collateral (except goods in transit) is located
or domiciled at the following additional addresses: None.
IN WITNESS WHEREOF, this Agreement has been duly executed as of October
20, 2005.
INTERACTIVE TELEVISION NETWORKS, INC.,
a Nevada corporation
By: ________________________
Name: _______________________
Title: ________________________
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