SECURITY AGREEMENT
This Security Agreement ("AGREEMENT") is dated as of the 30th day of
August, 1999 and is executed by AMERICAN RECRUITMENT CONFERENCES, INC., a
California corporation and XXXXXXXX.xxx, a California corporation, (jointly
referred to herein as "Debtor"), in favor of SUNBURST ACQUISITIONS III, INC.,
and or assigns ("Secured Party").
1. For valuable consideration, and to secure the payment and
performance of the obligations hereinafter described, Debtor hereby assigns to
Secured Party, and grants to Secured Party, pursuant to Division 9 of the
Uniform Commercial Code as adopted in California, a security interest in the
properties and assets of American Recruitment Conferences, Inc. as listed in
Exhibit A attached hereto, referred to herein as "Collateral".
2. This Agreement and the security interest created hereby are given
for the purpose of securing: (a) payment of the indebtedness evidenced by that
certain Promissory Note (the "Note") of even date herewith, in the principal
amount of One Million Four Hundred Thousand ($1,400,000), executed by Debtor to
the order of Secured Party; (b) performance of each agreement of Debtor herein
contained; (c) any and all amendments, modifications, renewals and/or extensions
of any of the foregoing, including but not limited to amendments, modifications,
renewals or extensions which are evidenced by new or additional instruments,
documents or agreements or which change the rate of interest on any obligations
secured hereby.
3. Debtor represents, warrants and agrees that: (a) Debtor has full
title to the Collateral free from any liens, leases, encumbrances, defenses or
other claims; (b) the security interest in the Collateral constitutes and will
continue to constitute a first, prior and indefeasible security interest; (c) no
financing statement covering the Collateral, or any part thereof, is on file in
any public office, except in favor of Secured Party; (d) Debtor will execute all
documents (including financing statements) and take such other action as Secured
Party deems necessary to create and perfect a security interest in the
Collateral; (e) Debtor will, at its sole cost and expense, defend any claims
that may be made against the Collateral; (f) the Collateral shall be kept at,
upon or about the Property or at Debtor's address set forth herein, and Debtor
will not, without Secured Party's prior written consent, part with possession
of, transfer, sell, lease, encumber, conceal or otherwise dispose of the
Collateral or any interest therein other than in the ordinary course of
business;; (g) the Collateral will be maintained in good condition and repair,
and will not be used in violation of any applicable laws, rules or regulations;
(h) Debtor will pay and discharge all taxes and liens on the Collateral prior to
delinquency; (i) Debtor will maintain insurance on the Collateral to the same
extent, and in the same amounts as in effect on the date hereof; (j) Debtor will
permit Secured Party to inspect the Collateral and Debtor's books and records
pertaining thereto at any time; and (k) the Collateral will at all times remain
personal property.
4. In the event that Debtor shall fail to perform any obligation
hereunder, Secured Party may, but shall not be obligated to perform the same,
and the cost thereof shall be
payable by Debtor to Secured Party immediately and without demand, shall bear
interest at the highest rate then in effect under the Note, and shall be secured
hereby.
5. There shall be a "DEFAULT" or "EVENT OF DEFAULT" hereunder upon the
occurrence of any of the following events: (a) default in the payment or
performance of any obligations secured hereby or contained herein; or (b) breach
of any representations or warranty contained herein.
6. Upon the occurrence of any default or event of default hereunder,
all obligations secured hereby shall, at Secured Party's option, immediately
become due and payable without notice or demand, and Secured Party shall have in
any jurisdiction where enforcement hereof is sought, in addition to all other
rights and remedies which Secured Party may have under law, all rights and
remedies of a secured party under the Uniform Commercial Code and in addition
the following rights and remedies, all of which may be exercised with or without
further notice to Debtor: (a)to settle, compromise or release on terms
acceptable to Secured Party, in whole or in part, any amounts owing on the
Collateral; (b) to enforce payment and prosecute any action or proceeding with
respect to any and all of the Collateral; (c) to extend the time of payment,
make allowances and adjustments and issue credits in Secured Party's name or in
the name of Debtor; (d) to foreclose the liens and security interests created
under this Agreement or under any other agreement relating to the Collateral by
any available judicial procedure or without judicial process; (e) to enter any
premises where any Collateral may be located for the purpose of taking
possession of or removing any Collateral; (f) to remove from any premises where
any Collateral may be located, the Collateral and any and all documents,
instruments, computer hardware and software, files and records, and any
receptacles and cabinets containing the same, relating to the Collateral, and
Secured Party may, at Debtor's cost and expense, use the supplies and space of
Debtor at any or all of its places of business as may be necessary or
appropriate to properly administer and control the Collateral or the handling of
collections and realizations thereon; (g) to receive, open and dispose of all
mail addressed to Debtor and notify postal authorities to change the address for
delivery thereof to such address as Secured Party may designate; and (h) to
sell, assign, lease, or otherwise dispose of the Collateral or any part thereof,
either at public or private sale, in lots or in bulk, for cash, on credit or
otherwise, with or without representations or warranties, and upon such terms as
shall be acceptable to Secured Party, all at Secured Party's sole option and as
Secured Party in its sole discretion may deem advisable. Debtor irrevocably
appoints Secured Party its true and lawful attorney in fact, which appointment
is coupled with an interest, for purposes of accomplishing any of the foregoing.
The net cash proceeds resulting from the collection, liquidation, sale, lease or
other disposition of the Collateral shall be applied, first, to the expenses
(including reasonable attorneys' fees) of retaking, holding, storing, processing
and preparing for sale, selling, collecting, liquidating and the like, and then
to the satisfaction of all obligations and indebtedness secured hereby. Such
proceeds shall be applied to particular obligations and indebtedness, or against
principal or interest, in Secured Party's absolute discretion. Debtor will, at
Secured Party's request, assemble all Collateral and make it available to
Secured Party at such place or places as Secured Party may designate which are
reasonably convenient to both parties, whether at the premises of Debtor or
elsewhere, and will make available to Secured Party all premises and facilities
of Debtor for the purpose of
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Secured Party's taking possession of the Collateral or removing or putting the
Collateral in salable form. Debtor agrees to pay all costs and expenses incurred
by Secured Party in the enforcement of this Agreement, including without
limitation reasonable attorney's fees, whether or not suit is filed hereon.
7. This Agreement may not be altered or amended except with the written
consent of each of the parties. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, assigns and successors. The term "Secured Party" shall mean the
holder and owner, including any pledgee or assignee, of the Note or other
obligations secured hereby whether or not named as the Secured Party herein. All
of Secured Party's rights and remedies hereunder are cumulative and not
exclusive, and are in addition to all rights and remedies provided by law or
under any other agreement between Debtor and Secured Party, or otherwise. Where
the context permits, the plural term shall include the singular, and vice versa.
Where more than one person, partnership, corporation or other entity executes
this Agreement as Debtor, their liability hereunder shall be joint and several.
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California. Notice of acceptance hereof by
Secured Party is hereby waived by Debtor.
8. This Agreement shall be construed under the laws of the State of
California and the parties agree that the exclusive jurisdiction for any
litigation arising from this Agreement shall be in Los Angeles, California. The
prevailing party in any such litigation shall be entitled to recover its
attorneys fees.
"Debtor":
AMERICAN RECRUITMENT CONFERENCES,
INC., a California corporation
By: S/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
XXXXXXXX.xxx, a California corporation
By: /S/ XXXXX X. XXXXXX
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EXHIBIT A TO SECURITY AGREEMENT
AND UCC-1 FINANCING STATEMENT
AMERICAN RECRUITMENT CONFERENCES, INC. - DEBTOR
All of Debtor's right, title and interest in all of the following
collateral, whether presently existing or hereafter acquired or arising, and
wherever located:
1. Accounts;
2. Equipment;
3. General Intangibles;
4. Inventory;
5. Negotiable Collateral;
6. any money, deposit accounts or other assets of
Debtor in which Secured Party receives a security interest or which hereafter
come into the possession, custody or control of Secured Party; and
7. the proceeds of any of the foregoing, including,
but not limited to, proceeds of insurance covering the collateral, or any
portion thereof, and any and all Accounts, Equipment, General Intangibles,
Inventory, Negotiable Collateral, money, deposit accounts or other tangible and
intangible property resulting from the sale or other disposition of the
collateral, or any portion thereof or interest therein, and the proceeds
thereof.
As used herein:
The term "Accounts" means and includes all presently existing and
hereafter arising accounts, contract rights, instruments, notes, drafts,
documents, chattel paper and all other forms of obligations owing to Debtor
arising out of the sale or lease of goods or the rendition of services by
Debtor, whether or not earned by performance, and any and all credit insurance,
guaranties and other security therefor, as well as all merchandise returned to
or reclaimed by Debtor, and Debtor's Books (except minute books) relating to any
of the foregoing, except for Debtor's accounts receivable that have been
previously pledged, sold or otherwise encumbered.
The term "Debtor's Books" means and includes all of Debtor's books and
records including, but not limited to: records indicating, summarizing or
evidencing Debtor's assets, liabilities, and the Accounts; all information
relating to Debtor's business operations or
financial condition; and all computer programs, disc or tape files, printouts,
runs, and other computer prepared information and the equipment containing such
information.
The term "Equipment" means and includes all of Debtor's machinery,
machine tools, motors, equipment, furniture, furnishings, fixtures, motor
vehicles, tools, parts, dies, jigs, goods, and any interest in any of the
foregoing, and all attachments, accessories, accessions, replacements,
substitutions, additions and improvements thereto, wherever located.
The term "General Intangibles" means and includes all of Debtor's
general intangibles and all other presently owned or hereafter acquired
intangible personal property of Debtor (including, without limitation, any and
all agreements, rights under agreements, licenses, permits, chooses or things in
action, goodwill, patents, copyrights, trade names, service marks, trademarks,
all applications for any patents, copyrights, trade names, service marks,
blueprints, drawings, purchase orders, customer lists, monies due or recoverable
from pension funds, route lists, infringement claims, computer programs,
computer discs, computer tapes, literature, reports, catalogs, deposit accounts,
tax refunds and tax refund claims internet websites, domain names, URL
registrations, database of users of the website, webpage designs and software
necessary to operate such website) other than goods and Accounts, as well as
Debtor's Books relating to any of the foregoing.
The term "Inventory" means and includes all of Debtor's inventory in
which Debtor has any interest, including, but not limited to, goods held for
sale or lease or to be furnished under a contract of service and all of Debtor's
present and future raw materials, work in process, finished goods, and packing
and shipping materials, wherever located, and any documents of title
representing any of the above.
The term "Negotiable Collateral" means and includes all of Debtor's
present and future letters of credit, advises of credit, notes, drafts,
instruments, documents, leases, and chattel paper, and Debtor's Books relating
to any of the foregoing.
PROMISSORY NOTE
$1,400,000 August 30, 1999
For value received, AMERICAN RECRUITMENT CONFERENCES, INC., a
California corporation and XXXXXXXX.xxx, a California corporation (jointly
referred to herein as "DEBTOR"), promises and agrees to pay to the order of
Sunburst Acquisitions III, Inc. or assigns ("LENDER"), in lawful money of the
United States of America, the principal sum of $1,400,000 with interest on the
principal sum owing thereunder at the rate of 10% per annum, all amounts payable
and due on January 23, 2000.
Unless otherwise specified in writing by Lender, all payments hereunder
shall be paid to Lender at 0000 Xxxxx Xxxx Xxx, Xxxxxxxx, Xxxxxxxx 00000. Lender
reserves the right to require any payment on this Note, whether such payment is
a regular installment, prepayment or final payment, to be by wired federal funds
or other immediately available funds.
Debtor expressly waives demand and presentment for payment, notice of
nonpayment, protest, notice of protest, notice of dishonor, notice of intent to
accelerate the maturity hereof, notice of the acceleration of the maturity
hereof, bringing of suit and diligence in taking any action to collect amounts
called for hereunder and in the handling of securities at any time existing in
connection herewith; such parties are and shall be jointly, severally, directly
and primarily liable for the payment of all sums owing and to be owing hereon,
regardless of an without any notice, diligence, act or omission as or with
respect to the collection of any amount called for hereunder or in connection
with any right, lien, interest or property at any and all times had or existing
as security for any amount called for hereunder.
This Note evidences all advances made, interest due and all amounts
otherwise owed to Lender. This Note may be prepaid in whole or in part at any
time without penalty.
This Note is secured by the Security Agreement (Exhibit A to Promissory
Note).
This Note has been executed and delivered in and shall be construed in
accordance with and governed by the laws of the State of California and of the
United States of America.
Should Debtor not make any payments of principal or interest when due,
Lender may proceed to enforce its legal remedies and shall be entitled to
collect its attorneys' fees in connection with any demands, litigation, or other
process as necessary for collection hereunder. Any litigation involving this
Note or the related Security Agreement shall be conducted in the courts located
solely in Los Angeles, California and all parties consent to jurisdiction
therein.
This Note shall be construed under the laws of the State of California
and the parties agree that the exclusive jurisdiction for any litigation arising
from this Note shall be in Los
Angeles, California. The prevailing party in any such litigation shall be
entitled to recover its attorneys fees.
DEBTOR:
AMERICAN RECRUITMENT CONFERENCES, INC.
By: /S/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
President
XXXXXXXX.XXX
By: /S/ XXXXX X. XXXXXX
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