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EXHIBIT 10.4
PLEDGE AND SECURITY AGREEMENT
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EXHIBIT B
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PLEDGE AND SECURITY AGREEMENT
by and between Xxxxx X. Xxxxxx, as Obligor
and
THE AUGUSTINE FUND, L.P.
as Secured Party
Dated as of September 30, 1999
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PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Agreement") dated as of
September 30, 1999, is entered into by and between Xx. Xxxxx X. Xxxxxx (the
"Obligor"), and THE AUGUSTINE FUND, L.P. (the "Secured Party").
WITNESSETH:
WHEREAS, Thoroughbred Interests, Inc., a Nevada corporation (the
"Company") and the Secured Party are parties to that certain Promissory Note
dated as of the date hereof (including also all Exhibits and Addenda executed by
the parties, the "Note").
WHEREAS, it is a condition precedent to Secured Party's willingness to
execute the Note and to lend the sum of $300,000.00 to the Company (the
"Obligations") be secured by 6,000,000 shares of common stock (the "Common
Stock") of the Company owned or to be purchased by the Obligor.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties executing this Agreement, the parties hereto agree
as follows:
SECTION 1. Grant of Security Interest. The Obligor hereby conveys,
transfers, grants, assigns and pledges to the Secured Party a security interest
in and security title to (together with a right of setoff) the Obligor's right,
title and interest in 6,000,000 shares of Common Stock of the Company owned by
the Obligor (the "Collateral").
SECTION 2. Security for Obligations. This Agreement secured the
performance of the obligations of the Company under the Note (the "Company's
Obligations"), whether now or hereafter existing. Without limiting the
generality of the foregoing, this Agreement secures the performance of the
Company's Obligations and all amounts which would be owned by the Obligor to the
Secured Party but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding involving
the Obligor.
SECTION 3. Representations and Warranties. The Obligor represents and
warrants as follows:
(a) This Agreement creates a valid security interest in the
Collateral, securing the performance of the company's Obligations.
(b) The Collateral is not subject to any lien, security interest or
encumbrance senior to that created by this Agreement.
(c) The Collateral is or may be restricted from transfer under
applicable securities law, unless the Company defaults under its
obligations under the
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Note, at which time the Secured Party may be able to sell the Collateral
pursuant to Rule 144.
SECTION 4. Further Assurances. The Obligor agrees that from time to time
it will promptly execute and deliver all further instruments and documents and
take all further action that may be necessary or that the Secured Party may
reasonably request in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to the Collateral.
SECTION 5. Transfer of Collateral. Except as stated herein, the Obligor
shall not sell, assign (by operation of law or otherwise) or otherwise dispose
of, or grant any option with respect to, the Collateral. The Obligor shall upon
request of the Secured Party provide trade confirmations with respect to any
Common Stock sold.
SECTION 6. Secured Party Appointed Attorney-in-Fact. The Obligor hereby
irrevocably appoints the Secured Party its attorney-in-fact, with full authority
in the place and stead of the Obligor and in the name of the Obligor or
otherwise, at such time as any default has occurred in the Company's Obligations
(a "Default"), to take any action and to execute any instrument which the
Secured Party may deem necessary or advisable to accomplish the purposes of
this Agreement, including, without limitation:
(a) to ask, demand, collect, xxx for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in connection with the Collateral;
(b) to receive, endorse and collect any instruments or documents in
connection therewith; and
(c) to file any claims or take any action or institute any
proceedings which the Secured Party may deem necessary or desirable for
the collection of the Collateral or otherwise to enforce the rights of the
Secured Party with respect to the Collateral.
SECTION 7. Secured Party May Perform. If the Obligor fails to perform any
agreement contained herein, the Secured Party may itself perform or cause the
performance of such agreement, and the expenses of the Secured Party incurred in
connection therewith shall be payable by the Obligor.
SECTION 8. Secured Party's Duties. The powers conferred on the Secured
Party hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers.
SECTION 9. Remedies. If any Default shall have occurred and until such
default is waived in writing in accordance with the Note Purchase Agreement:
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(a) The Secured Party may exercise in respect of the Collateral, in
addition to all of the other rights and remedies of a secured party under
the Uniform Commercial Code in effect in the State of Illinois at that
time or any other applicable jurisdiction, and also may (i) without
notice, except as specified below, sell the Collateral or any part thereof
at public or private sale, at any of the Secured Party's offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as are commercially reasonable. The Obligor agrees that, to the
extent notice of sale shall be required by law, at least ten (10) calendar
days' notice to the Obligor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Secured Party shall not be obligated to make
any sale of Collateral, regardless of notice of sale having been given.
The Secured Party may adjourn any public or private sale from time to time
by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) All cash proceeds received by the Secured Party in respect of
any sale of, collection from or other realization upon all or any part of
the Collateral may, in the discretion of the Secured Party, be held by the
Secured Party as collateral for, and/or then or at any time thereafter be
applied in whole or in part by the Secured Party against, all or any part
of the Company's Obligations. Any surplus of such cash or cash proceeds
held by the Secured Party and remaining after satisfaction in full of all
the Company's Obligations shall be paid over to the Obligor or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION 10. Remedies Cumulative. Each right, power and remedy of the
Secured Party as provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy provided for in
this Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by the Secured Party of
any one or more of such rights, powers, or remedies shall not preclude the
simultaneous or later exercise by the Secured Party of any or all such other
rights, powers, or remedies.
SECTION 11. Expenses. The Obligor will upon demand pay to the Secured
Party the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel which the Secured Party may incur in connection
with the exercise or enforcement of any of the rights of the Secured Party
hereunder or the failure by the Obligor to perform or observe any of the
provisions hereof.
SECTION 12. Possession Until Default. Until a Default shall occur the
Collateral shall be held in escrow by the Escrow Agent (as defined in the Note),
subject to and upon the terms hereof, the Note and its related escrow agreement.
The Obligor shall deliver the Collateral to the Escrow Agent at or prior to the
closing of the transactions contemplated in the Note. The Escrow Agent shall
hold the Collateral in escrow and shall release the Collateral to a party other
than the Obligor only upon the following conditions. (I) If the Note is not
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repaid in full in a timely manner as described in the Note, or (II) If the
Secured Party informs the Escrow Agent and the Obligor in writing with
reasonable specificity of a Default, the Obligor or the company shall have five
(5) business days to cure the Default; if the Default is cured, the Secured
Party shall inform the Escrow Agent in writing, and no further action will be
taken. If the Escrow Agent is not informed in writing by the Secured Party that
the Default has been cured within such five (5) day period, the Escrow Agent
shall deliver the Collateral to the Secured Party to effect the purposes of this
Security Agreement.
SECTION 13. Amendments; Etc. No waiver of any provision of this Agreement
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. No amendment
of any provision of this Agreement shall be effective unless the same shall be
in writing and signed by the Secured Party and the Obligor.
SECTION 14. Addresses for Notices. All notices and other communications
provided for hereunder shall be given in the form and manner and delivered (a)
to the Secured Party at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000, or (b) to the Obligor at the address set forth on the signature page
hereof or, (c) as to either party, at such other address as shall be designated
by such party in a written notice to the other party.
SECTION 15. Continuing Security Interest; Assignments Under Note. This
Agreement shall crease a continuing security interest in the Collateral and
shall (a) remain in full force and effect until the performance in full of the
Company's Obligations, (b) be binding upon the Obligor and its successors and
assigns, and (c) inure to the benefit of and be enforceable by the Secured Party
and its successors, transferees and assigns. Upon the performance in full of the
Company's Obligations and all other amounts payable under this Agreement, the
security interest granted hereby shall terminate and all rights to the
Collateral shall revert to the Obligor. The Secured Party shall not, by any act,
delay, omission or otherwise, be deemed to have waived any of its rights or
remedies hereunder unless such waiver is in writing and signed by the Secured
Party and then only to the extent therein set forth. A waiver by the Secured
Party of any right or remedy on any occasion shall not be construed as a bar to
the exercise of any such right or remedy which the Secured Party has or would
otherwise have had on any other occasion.
SECTION 16. Governing Law; Terms. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without reference
to the conflict or choice or law principles thereof, except to the extent that
the validity or perfection of the security interest hereunder, or the remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of Illinois. Any terms used herein which are
used in the Uniform Commercial Code of the State of Illinois shall have the same
meanings herein as such terms have in said Uniform Commercial Code.
SECTION 17. Miscellaneous.
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(a) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such separate
counterparts shall together constitute but one and the same instrument. A
facsimile of the signature page hereof faxed to the Escrow Agent shall be
deemed acceptance of this Agreement for all purposes, and the other party
hereof may rely upon such facsimile as if this Agreement were executed in
the presence of the party so relying.
(b) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of
such prohibition or unenforceability in such jurisdiction without
invalidating the remaining provisions hereof in such jurisdiction or
affecting the validity or enforceability of such provision in any other
jurisdiction.
IN WITNESS WHEREOF, the Obligor and the Secured Party have caused this
Agreement to be duly executed and delivered as of the date first above written.
OBLIGOR
/s/ Xxxxx X. Xxxxxx
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Xx. Xxxxx X. Xxxxxx
Address: 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel. 000.000.0000
Fax. 000.000.0000
SECURED PARTY
THE AUGUSTINE FUND, L.P.
By: Augustine Capital Management, Inc., its General Partner
By:
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(Duly Authorized Representative)
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