Exhibit 10.6.2
SECURITY AGREEMENT # 11441-102
SECURITY AGREEMENT, dated as of October 21, 1997, between Newriders,
Inc., a Nevada corporation, having its principal office at 000 Xxx Xxxxxxx
Xxxxx, Xxxxxxx Xxxxx, XX 00000 ("Borrower"), and FRANCHISE MORTGAGE ACCEPTANCE
COMPANY LLC, a California limited liability company, having its principal
xxxxxx xx Xxxx Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Lender").
WHEREAS, Lender has made available to Borrower a loan in the principal
amount of $475,000.00 Four Hundred Seventy-Five Thousand Dollars ($475,000.00)
("Lender");
WHEREAS, Borrower's obligations to repay the Loan with interest thereon
are evidenced by a promissory note made by Borrower, dated the date hereof
("Note");
WHEREAS, as a condition of making the Loan, Lender has requested that
Borrower grant to, and create in favor of, Lender a senior security interest
in certain collateral, as set forth in and pursuant to this Agreement; and
WHEREAS, it is the intent of the parties that this Agreement secure all
indebtedness, obligations and liabilities of Borrower to Lender from time to
time under the Note, and any other instruments which may be executed by
Borrower evidencing an obligation to Lender.
NOW, THEREFORE, in consideration of the making of the Loan and other good
and valuable consideration, receipt of which is hereby acknowledged by
Borrower, and in order to induce Lender to make the Loan, Borrower and Lender,
intending to be legally bound hereby, covenant and agree as follows:
1 . Definitions. Unless the context otherwise requires, all terms used
herein which are not defined herein and which are defined in the Uniform
Commercial Code ("UCC") shall have the meanings therein stated. In addition to
other terms defined elsewhere in, this Agreement, the following words and
terms shall have the following meanings, respectively, unless the context
hereof requires otherwise:
"Collateral" has the meaning set forth in Section 2 hereof.
"Proceeds" means whatever is received when Collateral or Proceeds
are sold, exchanged, collected or otherwise disposed of, both cash and non-
cash, including the proceeds of insurance paid or payable on Collateral or
Proceeds.
"Secured Obligations" means all indebtedness, obligations and
liabilities of Borrower to Lender from time to time arising including, but not
limited to, the Note, and all extensions and renewals thereof, whether such
indebtedness, obligations or liabilities are direct or indirect, otherwise
secured or unsecured, joint or several, absolute or contingent, due or to
become due, whether for payment or performance, now existing or hereafter
arising.
2. Grant of Security. As security for the full and timely payment of the
Secured Obligations, Borrower hereby assigns, pledges, transfers and sets over
to Lender, and hereby agrees that Lender shall have, and hereby grants to and
creates in favor of Lender, a first priority security interest under the UCC,
in and to all of Borrower's right, title and interest in, to and under the
following, in each case whether now existing or hereafter arising, now owned
or hereafter acquired, wherever located ("Collateral"):
(a) All of the goods, chattels and property of Borrower described on
Schedule A annexed hereto; and
(b) All Proceeds of and accessions and additions thereto
substitutions for, and all replacements of, any of the foregoing, cash and
non-cash.
3. Representations and Warranties. Borrower represents and warrants that:
(a) Borrower is duly organized, and validly existing and in good
standing under the laws of the State of its organization and Borrower is duly
licensed to do business wherever the ownership of its property or the conduct
of its business requires such licensing.
(b) Borrower has the power and authority to enter into, execute,
deliver and perform the Note, this Agreement and any other agreement or
instrument referred to herein, and this Agreement and all such other
agreements and instruments are valid and binding and enforceable against
Borrower in accordance with their respective terms. Borrower has taken all
action required to authorize the execution, delivery and performance of the
Note, this Agreement and all other agreements or documents required hereunder
and the transactions contemplated hereby.
(c) The execution, delivery and performance by Borrower of this
Agreement and any other agreement or instrument referred to herein shall not,
by the lapse of time, the giving of notice or otherwise, constitute a
violation of, or result in the breach of the terms of any applicable law, rule
or regulation of any governmental body, or any provision contained in
Borrower's Articles or Certificate of Incorporation or Bylaws or in any
agreement, instrument or document to which Borrower is now a party or by which
it or its assets are bound, or result in the creation of any claim, lien,
charge or encumbrance upon any of the property or assets of Borrower. No
consent, approval, authorization or declaration of, designation by, or filing
with, any governmental authority or other person or entity is required in
connection with the valid execution, delivery or performance of the Note or
this Agreement and the consummation of the transactions contemplated hereby,
except as are necessary to perfect Lender's security interest in the
Collateral.
(d) Borrower has good, indefeasible and merchantable title to, and
ownership of the Collateral, free and clear of all liens, claims, security
interests and encumbrances except those of Lender.
(e) Borrower is not in violation of any applicable statute,
regulation or ordinance of any governmental entity, including, without
limitation, the United States of America, any state, city, town, municipality,
county or of any other jurisdiction, or of any agency thereof, which could in
any respect materially and adversely affect the Collateral, or the business,
property, assets, operations or condition, financial or otherwise, of
Borrower.
(f) Borrower is not in default in any material respect with respect
to any indenture, loan agreement mortgage, lease, deed or other similar
agreement relating to the borrowing of monies to which it is a party, or by
which it or its assets may be bound.
(g) Borrower has delivered to Lender its financial statements as
part of its credit review ("Financial Statements"). The Financial Statements
have been prepared in accordance with generally accepted accounting principles
consistently applied and fully and fairly present the assets, liabilities and
financial condition of Borrower as of the respective dates thereof and for the
periods covered thereby; there are no omissions of other facts or
circumstances which are or may be material and there has been no material
adverse change in the fimcial condition of Borrower since the date of such
Financial Statements. Borrower further agrees that during the term of this
Security Agreement, Borrower shall provide Secured Party, within 90 days of
Borrower's fiscal year-end, with annual financial statements certified by an
accountant or by Borrower's chief financial officer and quarterly financial
statements prepared by Borrower.
(h) There are no actions or proceedings which are threatened or
pending in any court or before any governmental agency or instrumentality
against Borrower, its assets, or the Collateral, which may materially
adversely affect Borrower.
(i) Borrower has filed or has obtained extensions for the filing of
all federal, state and local tax returns and other reports it is required by
law to file, and has paid all taxes, assessments and charges reflected thereon
that are due and payable, and has reserved funds or made adequate provision
for the payment of such taxes, assessments and charges accruing but not yet
payable.
(j) The security interest granted by Borrower to Lender in the
Collateral will, when perfected in accordance with the UCC, constitute a valid
first lien and security interest in the Collateral.
(k) Borrower has not, within the six (6) year period immediately
preceding the date of this Agreement, (i) changed its name, been the surviving
entity of a merger or consolidation, or acquired all or substantially all of
the assets of any person or entity, or (ii) been known as or used any other
corporate or fictitious name, trade name, division name or other name.
(l) No representation or warranty by Borrower contained herein or in
any certificate or other document furnished by Borrower pursuant hereto, in
connection with the transactions contemplated hereunder, contains any untrue
statement of material fact, or omits to state a material fact necessary to
make it not misleading or necessary to provide Lender with proper information
as to Borrower and its affairs.
4. Covenants Applicable to the Collateral. Borrower and Leader agree
that, at all times during the term of this Agreement, the following provisions
shall be applicable to the Collateral:
(a) Borrower will keep accurate and complete books and records
concerning the Collateral owned or acquired by it in accordance with generally
accepted accounting principles.
(b) Lender shall have the right to review the books and records of
Borrower pertaining to the Collateral and to copy them and to make excerpts
therefrom, all at such reasonable times upon reasonable notice and as often as
Lender may reasonably request.
(c) Borrower shall maintain and keep its principal place of business
and its chief executive office at the address set forth above, and at no other
location without giving Lender at least thirty (30) days prior written notice
of any move. Borrower shall maintain and keep its records concerning the
Collateral at that address and at no other location without giving Lender at
lean thirty (30) days prior written notice of any move. Borrower shall keep
any personal property comprising the Collateral only at the above address.
Borrower may change any such location only if it has given Lender thirty (30)
days prior written notice of the now location.
(d) Borrower shall not sell, lease, transfer or otherwise dispose of
any of the Collateral.
(e) Borrower shall cause the Collateral to be maintained and
preserved in the same condition, repair and working order as when new,
ordinary wear and tear excepted, and shall promptly make or cause to be made
all repairs, replacements and other improvements in connection therewith which
are necessary or desirable to that end.
(f) Borrower shall not affix or permit the Collateral to become
affixed to real estate or to any other goods.
(g) Borrower shall keep the title to all Collateral, in each case as
from time to time owned or acquired by it, free and clear of all liens or
encumbrances of any nature whatsoever, except in favor of Lender. Borrower
will defend such title against the claims and demands of all persons.
(h) Borrower will faithfully preserve and protect Lender's security
interest in the Collateral and will, at its own cost and expense, cause said
security interest to be perfected and continue to be perfected, and for
such purpose Borrower will, from time to time at the request of Leader and at
the expense of Borrower, make, execute, acknowledge and deliver, and file or
record, or cause to be filed or recorded, in the proper filing places, all
such instruments, documents and notices, including without limitation
financing statements and continuation statements, as Lender my deem necessary
or advisable from time to time in order to perfect and continue the perfection
of said security interest. Borrower will do all such other acts and things and
make, execute, acknowledge and deliver all such other instruments and
documents, including without limitation further security agreements, pledges,
endorsements, assignments and notices, as Lender my deem necessary or
advisable from time to time in order to perfect and preserve the priority of
said security interest as a first lien on and security interest in the
Collateral prior to the rights of a other persons therein or thereto. Borrower
hereby appoints Lender (and any of Lender's officers, employees, or agents
designated by Lender) as Borrower's attorney, coupled with an interest, to do
all things necessary to carry out this paragraph, including, but not limited
to, signing financing statements and other documents as Borrower's Attorney-
in-fact to preserve and protect the priority of Lender's lien and security
interest in any or all of the Collateral.
(i) Borrower will not, without the prior written consent of Lender,
(i) borrow or permit any person to borrow against any of the Collateral, (ii)
create, incur, assume or suffer to exist any lien with respect to any of the
Collateral, (iii) permit any levy or attachment to be made against any of the
Collateral, or (iv) permit any financing statement to be on file with respect
to any of the Collateral.
(j) Borrower shall bear the entire risk of loss of damage to, or
destruction of the Collateral. Borrower will insure the Collateral against all
risk of loss in an amount not less than the full replacement value thereof
with insurers acceptable to Lender. Lender shall be named as an additional
insured and the policies shall be endorsed in favor of Lender with such loss
payable riders as Lender may designate. The original or certified copies of
the polices or a certificate of insurance shall be delivered to Lender and
shall provide that they may not be cancelled without thirty (30) days prior
written notice to Lender. If Borrower fails to obtain and keep such insurance
in full force and effect, or fails to pay the premiums when due, Lender may do
so for the account of Borrower and add the cost thereof to the Secured
Obligations and the same shall be payable to Lender on demand. Borrower hereby
assigns to Lender all moneys which may become payable on account of such
insurance, including, without limitation, any return of unearned premiums
which may be due upon cancellation of any such insurance, and directs the
insurers to pay Lender any amount so due. Leader, its officers, employees,
authorized agents, successors and assigns, are hereby appointed attorneys-in-
fact of Borrower, for the purpose of endorsing any draft or check which may be
payable to Borrower in order to collect the proceeds of such insurance or any
return of unearned premiums. Such appointment is irrevocable and coupled with
an interest.
(k) Upon the occurrence and during the continuation or existence of
any Event of Default, Borrower shall Promptly upon demand by Lander assemble
the Collateral and make it available to Leader at the place or places to be
designated by Lender. The right of Lender to have the Collateral assembled and
made available to it is of the essence of this Agreement and Lender may, at
its election, enforce such right by an action for specific performance.
(l) Lender shall have no duty to collect or protect the Collateral
or any part thereof beyond exercising reasonable care in the custody of any
Collateral actually in the possession of Lender.
5. Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default:"
(a) The failure to pay the Note or any installment thereunder on the
due date thereof;
(b) The failure to pay any other obligation or perform any other
agreement to Lender however arising;
(c) The failure to perform or observe any term, covenant, warranty
or representation contained in this Agreement or any document, instrument or
agreement referred to herein, which is required to be performed or observed by
Borrower and which failure is not cured to Lender's reasonable satisfaction
within ten (10) days after the giving of notice by Lander to Borrower of such
failure;
(d) The Collateral or a significant part of Borrower's other assets
are sold or attached, seized, levied upon or subjected to a writ or distress
warrant, or come within the possession of any receiver, trustee, custodian or
assignee for the benefit of creditors and the same is not released within
sixty (60) days thereafter;
(e) An application is made by Borrower or any person other than
Borrower for the appointment of a receiver, trustee or custodian for the
Collateral or any other of Borrower's assets and, in the case of an
application made by a third party, it is not dismissed within sixty (60) days
after the application therefor.
(f) A petition under any section or chapter of the Bankruptcy Code
or any similar law or regulation is filed by or against Borrower and, in the
case of any petition filed by any third party, such petition is not dismissed
within sixty (60) days of such filing; or Borrower makes an assignment for the
benefit of its creditors; or any case or proceeding is filed by or against
Borrower for its dissolution, liquidation, or termination; or
(g) Borrower ceases to conduct its business or is enjoined,
restrained or in any way prevented by court order from conducting all or any
material part of its business affairs.
Upon and after an Event of Default, all of the Secured Obligations may,
at the option of Lender and without demand, notice, or legal process of any
kind, be declared, and immediately shall become, due and payable.
6. Rights and Remedies. If one or more Events of Default shall occur and
be continuing or shall exist, then and in any such event, Lender shall have
such rights and remedies in respect of the Collateral or any part thereof as
are provided by the UCC as in effect in the jurisdiction or jurisdictions whom
the Collateral is located, and such other rights and remedies in respect
thereof which it may have at law or in equity or under this Agreement,
including, but not limited to, the right to (i) enter any premises where
Collateral is located and take possession of it without demand or notice and
without prior judicial hearing or legal proceedings, which Borrower hereby
expressly waives, and/or (ii) sell all or any portion of the Collateral at
public or private sale, with ten (10) days' prior written notice to Borrower,
at such time or times and in such manner and upon such terms, whether for cash
or on credit as Lender in its sole judgment reasonably exercised may
determine. Lender shall apply the Proceeds of any such sale and any Proceeds
received by Lander toward payment of the Secured Obligations.
7. PERSONAL -JURISDICTION AND SERVICE OF PROCESS. BORROWER HEREBY
IRREVOCABLY CONSENTS TO PERSONAL JURISDICTION AND VENUE IN ANY COURT OF THE
STATE OF CONNECTICUT OR ANY FEDERAL COURT SITTING IN THE STATE OF CONNECTICUT,
AND HEREBY WAIVES ANY CLAIM BORROWER MAY HAVE THAT SUCH COURT IS AN
INCONVENIENT FORUM FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING
ARISING OUT OF THIS AGREEMENT, THE NOTE, ANY OTHER INSTRUMENT OR ANY OF THE
AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, WHICH IS BROUGHT
AGAINST BORROWER, AND HEREBY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
SUIT, ACTION OR PROCEEDING MAY BE HEARD OR DETERMINED IN ANY SUCH COURT.
BORROWER FURTHER CONSENTS TO THE SERVICE OF PROCESS ANY SUCH SUIT, ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS SET FORTH ABOVE, SUCH SERVICE TO
BECOME EFFECTIVE TEN (10) DAYS AFTER SUCH MAILING,
8. Severability. The Provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall,
as to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining Provisions
hereof in any jurisdiction.
9. Governing. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State of Connecticut without regard to its conflict of
law provisions.
10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts each
of which, when so executed and delivered by the parties, constituting an
original but all such counterparts together constituting but one and the same
instrument.
11. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of Lender, Borrower and their respective successors
and assigns, except that Borrower may not assign of transfer any of its rights
or obligations hereunder or any interest herein without the consent of Lender.
Except to the extent otherwise required by its context, the word "Lender"
where used in this Agreement shall mean and include the holder of the Note
issued to Lender, and the holder of such Note shall be, bound by and have the
benefits of this Agreement the same as if such holder had been a signatory
hereto.
12. Miscellaneous. No delay or failure on the part of Lender in exercising any
right, remedy, power or privilege hereunder shall operate as a waiver thereof
or of any other right, remedy, power or privilege of Lender hereunder or any
instrument or instruments now or hereafter evidencing the Secured Obligations;
nor shall any single or partial exercise of any such right, remedy, power or
privilege preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights and remedies of Lender
under this Agreement are cumulative and not exclusive of any rights or
remedies which it might otherwise have.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto duly
authorized and intending to be, legally bound hereby, have executed and
delivered this Security Agreement as of the date first above written.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY LLC
By: /s/
------------------------------
Title:___________________________
NEWRIDERS, INC.
By: /s/ XX Xxxxxxxx
----------------------------
Title: Exec. VP Finance + Admin.
SCHEDULE A
To Security Agreement between
Franchise Mortgage Acceptance Company LLC as Lender
and
Newriders, Inc. as Borrower
Collateral Description:
ALL FURNITURE, FIXTURES AND EQUIPMENT NOW OR HEREAFTER OWNED, ACQUIRED, HELD
OR USED BY BORROWER IN ITS OPERATIONS OF EASYRIDERS CAFE RESTAURANT LOCATED AT
THE ADDRESSES LISTED BELOW, ALL ADDITIONS, ATTACHMENTS, ACCESSIONS THERETO,
SUBSTITUTIONS FOR, AND ALL REPLACEMENTS OF, ANY OF THE FOREGOING, CASH AND
NON-CASH, AND PROCEEDS OF THE FOREGOING COLLATERAL, INCLUDING GENERAL
INTANGIBLES.
Collateral Location:
0000 X. Xxxxxxxxxx
Xxxxxx, XX 00000
