SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") made as of the 24th day of
September 1997, by and between CERVECERIA RIO XXXXX X.X. de C.V. a Mexican
corporation ("Debtor"), and INTERNACIONAL de MEXICO S.A. de C.V. ("Secured
Party").
RECITALS:
A. Secured Party is the Holder of a Note dated September 24, 997 in which
Cerveceria Rio Xxxxx X.X. de C. V. ("Maker") promises to pay to Internacional de
Mexico S.A. de C.V. ("Holder") or order, the sum of Three Hundred Thousand and
no/100 Dollars ($300,000.00) together with interest thereon at the rate of
twelve percent (12 %) per annum, payable on or before November 23, 1997 when the
balance of principal, together with interest accrued thereon, shall become
immediately due and payable.
B. As security for the payment of the Note in the sum of $300,000.00,
Debtor, Cerveceria Rio Xxxxx X.X. de C.V herewith grants a Security interest in
and to all of the following property ("Collateral") in which Debtor now has or
hereafter acquires any right, title or interest, located at Xxxxxxxxx Xxxxxxx #
000 Xxxxxxx Xxxxxxxxxx, Xxxx of Tecate, State of Baja California Norte, Mexico
and wheresoever located and whether in the additions, substitutions and
replacements thereto and thereof and all proceeds thereof (including but not
limited to accounts, inventory, chattel paper, documents, instruments, deposit
accounts and general intangibles): All accounts receivable, inventory,
equipment, fixed assets, furniture and fixtures, computers together with all
other property situated at the above location.
NOW, THEREFORE, Debtor and Secured Party hereby agree as follows:
I. Creation of Security Interest.
Debtor hereby grants to Secured Party a security interest in the personal
property described above owned by Debtor and any and all additions,
replacements, accessions, substitutions, repairs and proceeds relating thereto
or therefrom (all such personal property collectively referred to as the
"Collateral") for the purpose of securing:
(a) Payment prior to delinquency of the indebtedness (including both
principal and interest) as set forth in the Note in the sum of $300,000.00.
(b) Performance by Debtor of all agreements, covenants, terms and
conditions contained in this Agreement.
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(c) Reimbursement to Secured Party of any and all monies expended by
Secured Party to protect her security interest in or the value of the Collateral
under the provisions of this Agreement.
(d) This Security Agreement also secures: (a) all extensions or
renewals of said promissory note: (b) the repayment of all sums, including but
not limited to reasonable legal expenses, that may be advanced or incurred by
Secured Party for the maintenance, protection or preservation of the Security,
or any part thereof; (c) any and all other sums that may hereafter be advanced
by Secured Party to or for the benefit of Debtor; (d) any and all other
expenditures that may hereafter be made by Secured Party pursuant to the
provisions hereof; and (e) any and all other debts and obligation of Debtor to
Secured Party that may hereafter be incurred.
All matters referred to in Paragraphs 1(a) through 1(d) above are sometimes
referred to as the "Obligations."
2. Warranties. Representations and Covenants of Debtor.
Debtor hereby warrants, represents and covenants as follows:
(a) Debtor is the sole owner of the Collateral, free from any adverse
lien, security interest, encumbrance or adverse claim of any kind whatsoever.
Debtor will notify Secured Party of and will defend the Collateral against all
claims and demands of all persons at any time claiming any interest therein.
(b) The Collateral will be kept at Xxxxxxxxx Xxxxxxx # 000 Xxxxxxx
Xxxxxxxxxx, Xxxx of Tecate, State of Baja California Norte, Mexico and Debtor
will not remove the Collateral without the prior written consent of Secured
Party.
(d) Debtor's principal place of business is Xxxxxxxxx Xxxxxxx # 000
Xxxxxxx Xxxxxxxxxx, Xxxx of Tecate, State of Baja California Norte, Mexico.
Debtor will immediately notify Secured Party in writing of any changes in
Debtor's principal place of business.
(e) At the request of Secured Party, Debtor will join Secured Party in
executing one or more financing statements pursuant to the laws of Mexico, in
form satisfactory to Secured Party, to be Filed in all public offices wherever
filing is deemed by Secured Party to be necessary.
(t) As to all Collateral in Debtor's possession, Debtor agrees as
follows:
(i) Except for sales of inventory in the ordinary course of
business at usual and customary rates of gross profit, Debtor will not, without
the prior written consent of Secured Party, sell, offer to sell or otherwise
transfer, exchange or dispose of the Collateral or any interest therein. If the
Collateral or any part thereof is sold, transferred, exchanged, or otherwise
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disposed of (either with or without the written consent of Secured Party), the
security interest of Secured Party shall extend to the proceeds of such sale,
transfer, exchange or other disposition.
(ii) Debtor shall keep the Collateral separate and identifiable
from all other similar property.
(iii) Debtor shall keep the Collateral in good condition and repair,
and will not misuse, abuse, allow to deteriorate, waste or destroy the
Collateral or any part thereof, except for the ordinary wear and tear of its
normal and expected use. Inventory compromising the Collateral shall be kept in
good and salable condition as necessary, and all Collateral shall be dealt with
in such ways as are considered good practice by owners of like property. Debtor
shall permit the Secured Party to inspect the Collateral at reasonable times.
(iv) Except for sales of Inventory comprising the Collateral in the
ordinary course of business, Debtor shall not sell, contract to sell, encumber,
create any security interest in, or transfer or in any manner and proceeds
thereof impair the value of the Collateral until the Obligations have been paid
(g) Debtor will execute any document alone or with Secured party, will
procure any document and do all other acts and pay all connected costs, in a
timely and proper manner which from the character or use of the Collateral may
be reasonably necessary to protect the Collateral against the rights, claims or
interests of third persons, and will otherwise preserve the Collateral as
security hereunder.
3. Preservation of Collateral by Secured Party.
Should Debtor fail or refuse to make any payment, perform or observe
any other covenant, condition or obligation, or fail to take any other action
which Debtor is obligated hereunder to make, perform, observe, take or do at the
time or in the manner herein provided, then Secured Party may, at Secured
Party's sole discretion, without notice to or demand upon Debtor and without
releasing Debtor from any obligation, covenant or condition thereof, make,
perform, observe, take or do the same in such manner and to such extent as
Secured Party may deem necessary to protect her security interest in or the
value of the Collateral. Debtor agrees to reimburse Secured Party on demand for
any payment made, or any expense incurred by Secured Party pursuant to the
foregoing authorization (including actual attorneys' fees), together with simple
interest at the maximum rate of interest permitted by law, from the date of any
such payment or expenditure. Furthermore, Secured Party may commence, appear or
otherwise participate in any action or proceeding purporting to affect her
security interest in or the value of the Collateral.
4. Use of Collateral by Debtor.
Until a Default occurs, Debtor shall have possession of the Collateral
and use it in
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any lawful manner not inconsistent with this Agreement.
5. Default.
Debtor shall be in default under this Agreement upon the occurrence of
any of the following events or conditions which continue or are uncured after
Secured Party gives ten (10) days' prior written notice to Debtor:
(a) Debtor defaults in the payment or fails to perform of any of the
Obligations, or covenant or condition set forth in this Agreement;
(b) Any warranty, representation or statement (including, without
limitation, those made in this Agreement) made or furnished to Secured Party by
or on behalf of Debtor, in connection with this Agreement proves to have been
false in any material respect when made or furnished;
(c) Debtor becomes insolvent; seeks, consents to or acquiesces in the
appointment of a trustee, liquidator or receiver of any substantial part of its
assets; make an assignment for the benefit of creditors; commences any
proceeding under any bankruptcy or insolvency law, or any of the Collateral is
levied or executed upon or seized;
(d) Debtor fails to obtain the dismissal of any bankruptcy or
insolvency proceedings instituted against it by one or more third parties within
sixty (30) days from the commencement thereof;
(e) Debtor fails to pay, is unable to pay or admits its inability to
pay debts as debts mature;
(f) The Collateral is removed in violation of the terms of Paragraph
2(c), above.
6. Remedies Upon Default.
Upon the occurrence of any one or more events of default as set forth
in Paragraph 5 above, Secured Party may, at its option, after giving ten (10)
days' prior written notice to Debtor, do any one or more of the following:
(a) Declare all indebtedness and Obligations then owed by Debtor to
Secured Party to be immediately due and payable, whereupon all unpaid principal
of and interest on such indebtedness, Obligations and other amounts declared due
and payable shall be and become immediately due and payable;
(b) Either personally or by means of a court appointed receiver, take
possession of all or any of the Collateral and exclude therefrom Debtor and all
others claiming under Debtor,
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and thereafter hold, store, use, operate, manage, maintain and control, take
repairs, replacements, alterations, additions and improvements to and exercise
all rights and powers of Debtor in respect of the Collateral or any part thereof
including (without limitation) leasing the Collateral for use in the operation
of the business of the Debtor, to any third party. In the event Secured Party
demands, or attempts to take possession of the Collateral in the exercise of any
rights under this Agreement, Debtor agrees to turn over promptly and deliver
complete possession to Secured Party;
(c) Without notice to or demand upon Debtor, make such payments and do
such acts as Secured Party may deem necessary to protect her security interest
in the Collateral, including (without limitation) paying, purchasing, contesting
or compromising any encumbrance, charge or lien which is or appears to be prior
to or superior to the security interest granted hereunder, and, in exercising
any such powers or authority, to pay all expenses incurred in connection
therewith;
(d) Require Debtor to assemble the Collateral, or any portion thereof,
at a place designated by Secured Party and reasonable convenient to all parties,
and to deliver such Collateral to Secured Party, or an agent or representative
designated by Secured Party. Secured Party, and her agents and representatives,
shall have the right without court order or upon any or all of Debtor's premises
and property, to exercise Secured Party's rights hereunder;
(e) Foreclose this agreement and the security interest granted hereby
in any manner permitted by law; and sell the Collateral in such order as Secured
Party may determine, as a whole or in such portions as Secured Party may
determine;
(f) Sell, lease or otherwise dispose of the Collateral at public or
private sale, without having the Collateral at the place of sale, and upon such
terms and in such manner as Secured Party may determine. Secured Party may be a
purchaser at any sale;
(g) Exercise any remedies of a secured creditor under the laws of
Mexico or any other applicable law;
(h) The proceeds of any sale under this Paragraph 6 shall be applied
as follows:
(1) To the repayment of the reasonable costs and expenses of
retaking, holding and preparing for the sale and of selling the Collateral
(including actual attorneys' fees and costs) and the discharge of all
assessments, encumbrances, charges or liens, if any, on the Collateral prior to
the lien hereof (except any taxes, assessments, encumbrances, charges or liens
subject to which such sale shall have been made);
(2) To the payment of the whole or any portion of the amount
then due and unpaid of any indebtedness or Obligations of Debtor to Secured
Party (including principal and interest);
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(3) To the payment of all other amounts (including principal and
interest) secured hereunder; and
(4) The surplus, if any, shall be paid to Debtor or to whomever
may be lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct. Secured Party shall have the right to enforce one or
more remedies hereunder, successively or concurrently, and such action shall not
operate to estop or prevent Secured Party from pursuing any further remedy which
she may have, and any repossession or retaking or sale of the Collateral
pursuant to the terms hereof shall not operate to release Debtor until full
payment of any deficiency has been made in cash.
7. Termination.
In the event that Debtor shall not have suffered any default to occur in
the observance of any of the terms and conditions hereof (or shall have cured
any default to Secured Party's reasonable satisfaction), then upon payment and
performance in full of the Obligations, this Security Agreement shall terminate
and Secured Party (at Debtor's sole cost and expense) shall take all action
necessary to release the security interest granted hereby.
8. Notices.
All notices required or permitted hereunder shall be in writing or by fax
and may be delivered personally to the other party sent by registered mail or
wire or other telegraphic communication to the parties addressed as follows:
To Debtor:
Cerveceria Rio Xxxxx X.X. de X.X, Xxxxxxxxx Xxxxxxx # 000 Xxxxxxx
Xxxxxxxxxx, Xxxx of Tecate, State of Baja California Norte, Mexico.
American Craft Brewing International Limited, Xxx Xxxxxxxx Xxxxxxxxx, Xxxxx
0000, Xxxxxxxx, Xxxxxxxxx 00000.
To Secured Party:
Internacional de Mexico SA. de CV., Boulevard Xxxxxxxxxx 1711-302-B, Xxxx
xxx Xxx, Xxxxxxx, Xxxx Xxxxxxxxxx Xxxxx, Xxxxxx, X.X. 00000.
Such notices sent as provided above shall be effective when received by the
addressee thereof, but if sent by registered or certified mail, postage prepaid,
shall be effective three (3) business days after being deposited in the United
States mail.
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9. Other Remedies.
Any and all remedies expressly conferred on Secured Party shall be deemed
cumulative with, and not exclusive of, any other remedy conferred hereby or by
law on Secured Party, and the exercise of any one remedy shall not preclude the
exercise of any other.
10. Waiver.
By exercising or failing to exercise any of her rights, options or
elections hereunder, Secured Party shall not be deemed to have waived any breach
or default on the part of Debtor or to have released Debtor from any of its
indebtedness or Obligations hereunder, unless such waiver or release is in
writing, signed by Secured Party. In addition, the waiver by Secured Party of
any breach hereof or any default in payment of any indebtedness or obligations
secured hereby shall not be deemed to constitute a waiver of any succeeding
breach or default.
ii. General Terms.
(a) In this Agreement, whenever and wherever the context so requires,
the singular shall include the plural, and the masculine the feminine or neuter
gender, and vice versa.
(b) In any action or proceeding brought to enforce any provisions of
this Agreement, or to seek damages for a breach of any provision hereof, or
where any provision hereof is asserted as a defense, the successful party shall
be entitled to recover reasonable attorneys' fees and costs in addition to any
other available remedy.
(c) All agreements covenants, conditions and provisions of this
Agreement shall be binding upon the heirs, successors and assigns of Debtor and
the successors in interest of Debtor in and to the Collateral, and shall inure
to the benefit of Secured Party, her successors and assigns.
(d) The headings in this Agreement are inserted for convenience only
and shall not effect the meaning or interpretation of this Agreement or any
provision hereof.
(e) The validity, construction and effect of this Agreement shall be
governed by the laws of Mexico.
(f) This Agreement can be modified or rescinded only by an instrument
in writing expressly referring to this Agreement and signed by all of the
parties.
(h) If any provision of this Agreement or any application thereof
shall be invalid or unenforceable, the remainder of this Agreement and any other
application of such provision shall not be affected.
IN WITNESS WHEREOF, Secured Party and Debtor have executed this instrument.
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Dated: September 24, 1997 at Tecate, Mexico.
This Agreement is executed on behalf of DEBTOR, Cerveceria Rio Xxxxx X.X. de C.V
by its duly authorized officers.
DEBTOR: Cerveceria Rio Xxxxx X.X. de C.V
BY: /s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx X. X. Xxxxxxxx, President
BY: /s/ Xxxxx X. Xxx
-------------------------------
Xxxxx X. Xxx, Secretary
SECURED PART : Internacional de Mexico S.A. de C.V.
BY: /s/ Xxxxxxxx Xxxxxxxxx Xxxxx
-------------------------------
Xxxxxxxx Xxxxxxxxx Xxxxx, President
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SHAREHOLDER CONSENT
The undersigned, American Craft Brewing International Limited, is the sole
shareholder of Cerveceria Rio Xxxxx X.X. de C.V. and consents to the execution
of the above security agreement and note in the principal sum of $300,000.00.
American Craft Brewing International Limited
BY: /s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx X. X. Xxxxxxxx, President
BY: /s/ Xxxxx X. Xxx
-------------------------------
Xxxxx X. Xxx, Secretary
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