Exhibit 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement"), is made and entered into as of the
1st day of March, 2003, by Renegade Venture (NEV) Corporation, a Nevada
corporation with its principal place of business in Pima County, Arizona
(hereinafter called the "Debtor"), in favor of American Capital Ventures,
L.L.C., a Florida limited liability company (hereinafter called the "Secured
Party"), who agree as follows:
RECITALS
WHEREAS, the Debtor is borrowing the principal sum of Six Hundred
Seventy-Five Thousand and 00/100 Dollars ($675,000.00) from the Secured Party
(the "Loan") pursuant to a Secured Promissory Note of even date herewith (the
"Note"); and
WHEREAS, the making of the Loan and acceptance of the Note by the Secured
Party are conditioned upon the granting of this Agreement by the Debtor; and
WHEREAS, in order to secure the full and punctual payment and performance
of the Indebtedness (hereinafter defined), the Debtor has agreed to execute and
deliver this Agreement and to grant a continuing security interest in favor of
the Secured Party in and to the Collateral (hereinafter defined).
AGREEMENT
ARTICLE 1
GENERAL TERMS
Section 1.1 Terms Defined Above or Elsewhere. As used in this Agreement,
the terms "Agreement", "Loan", "Note", "Debtor", and "Secured Party" shall have
the meanings indicated above.
Section 1.2 Certain Definitions. As used in this Agreement, the following
additional terms shall have the meanings indicated:
"Accounts" means all "accounts" (as defined in the UCC) now owned or
hereafter acquired by the Debtor, and shall also mean and include all
accounts receivable, notes, notes receivable, drafts, acceptances, book
debts and similar documents and other monies, obligations or indebtedness
owing or to become owing to the Debtor arising from the sale, lease or
exchange of goods or other property by the Debtor, as to all of the
foregoing whether now in existence or hereafter arising or acquired.
"Chattel Paper" means all "chattel paper" (as defined in the UCC) now owned
or hereafter acquired by the Debtor, including in the case of true leases
the reversionary right of the Debtor in the leased goods which shall be
considered embodied in the chattel paper.
"Collateral" has the meaning set forth in Section 2.1 of this Agreement.
"Collateral Account" has the meaning set forth in Section 5.1 of this
Agreement.
"Collateral Documents" means collectively all mortgages, pledges,
assignments, security agreements, financing statements and other documents
by which the Debtor grants or perfects liens and security interests to the
Secured Party, and all other agreements, documents and instruments required
as security or security devices for any of the Indebtedness, as the same
may from time to time be amended or supplemented. "Documents" means all
"documents" (as defined in the UCC) or other receipts covering, evidencing
or representing goods, now owned or hereafter acquired by the Debtor.
"Equipment" means all "equipment" (as defined in the UCC) now owned or
hereafter acquired by the Debtor.
"Event of Default" shall have the meaning set forth in Section 8.1 of the
Note.
"General Intangibles" means all "general intangibles" (as defined in the
UCC) now owned or hereafter acquired by the Debtor, including without
limitation (i) all contractual rights of and obligations or indebtedness
owing to the Debtor (other than Accounts), all leases in which the Debtor
has an interest either as the landlord or tenant, any management, franchise
or licensing agreement regarding the conduct of the Debtor's business, and
all permits and licenses relative to the operation of the Debtor's
business, or (ii) all things in action, rights represented by judgments,
claims arising out of tort, warranty or contract and other claims
(including without limitation the right to assert and otherwise be the
proper party of interest to commence, control, prosecute and/or settle such
actions, whether as claims, counterclaims or otherwise, and whether
involving matters arising from casualty, condemnation, indemnification,
negligence, strict liability, other tort, contract, warranty or in any
other manner), (iii) rights under service, maintenance or warranty
contracts, and other warranties, guaranties and bonds, (iv) the right to
receive insurance or other proceeds attributable to damage to or loss of
the Collateral, (v) all goodwill, patents, patent licenses, trademarks,
trademark licenses, trade names, service marks, trade secrets, rights in
intellectual property, copyrights, permits and licenses, and (vi) all
rights or claims in respect of refunds for taxes paid. "General
Intangibles" also shall mean and include all deposit accounts of the Debtor
with the Secured Party, whether individual or jointly held with any other
Person, including the Collateral Account.
"Indebtedness" means all present and future amounts, liabilities and
obligations of the Debtor to the Secured Party or to any successor or
transferee thereof under or pursuant to the Note, this Agreement or the
other Collateral Documents, whether said amounts, liabilities or
obligations are liquidated or unliquidated, now existing or hereafter
arising, in principal, interest, deferral and delinquency charges,
prepayment premiums, costs and attorneys' fees, as therein stipulated, and
under and pursuant to all amendments, supplements, restatements, renewals
and extensions to or of any of said documents.
"Instruments" means all "instruments" (as defined in the UCC) now owned or
hereafter acquired by the Debtor, including without limitation all
promissory notes, letters of credit, drafts, bills of exchange and trade
acceptances, now owned or hereafter acquired by the Debtor.
"Inventory" means all "inventory" (as defined in the UCC) now owned or
hereafter acquired by the Debtor, and all replacements of or substitutions
for any of the foregoing.
"Lien" means any interest in property securing an obligation owed to, or a
claim by, a Person other than the owner of the property, whether such
interest is based on jurisprudence, statute or contract, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. For the purposes
of this Agreement, the Debtor shall be deemed to be the owner of any
property which it has accrued or holds subject to a conditional sale
agreement, financing lease or other arrangement pursuant to which title to
the property has been retained by or vested in some other Person for
security purposes.
"Materials" means all materials, all items of machinery, and all items of
equipment now owned or hereafter acquired by the Debtor.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust,
unincorporated organization, governm8rlt or any agency or political
subdivision thereof, or any other form of entity.
"Proceeds' means all "proceeds" (as defined in the UCC) including without
limitation all cash and non-cash proceeds, in whatever form, arising from
the collection, sale, lease, exchange, assignment or other disposition of,
or realization upon, Collateral and, to the extent not otherwise included,
all payments under insurance (whether or not the Secured Party is the loss
payee thereof), or any indemnity, warranty or guaranty payable by reason of
loss or damage to or otherwise with respect to any of the Collateral, and
including proceeds of all such proceeds, in each case whether now existing
or hereafter arising.
"Security Interests" means the security interests in the Collateral and
Proceeds granted hereunder securing the Indebtedness.
"UCC" means the Uniform Commercial Code: - Secured Transactions (Arizona
Revised Statutes 47-9101 et seq.), as amended from time to time; provided,
that if by reason of mandatory provisions of law, the perfection or the
effect of perfection or non-perfection of the Security Interests in any
Collateral or Proceeds is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than Arizona, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for purposes of the
provisions hereof relating to such perfection or effect of perfection or
non-perfection.
ARTICLE 2
SECURITY INTEREST
Section 2.1 The Security Interests. In order to secure the full and
punctual payment and performance of all present and future Indebtedness, the
Debtor hereby grants to the Secured Party a continuing security interest in and
to all right, title and interest of the Debtor in, to or under the following
property, whether now owned or existing or hereafter acquired or arising and
regardless of where located:
(i) the Inventory;
(ii) the Equipment;
(iii) the General Intangibles;
(iv) the Accounts;
(v) the Chattel Paper,
(vi) the Instruments;
(vii) the Collateral Account, all cash deposited therein from time to time,
and all other monies and property of any kind of the Debtor in the
possession or under the control of the Secured Party;
(viii) all books and records (including, without limitation, customer
lists, credit files, computer programs, tapes, disks, punch cards or
other data storage media and the data stored therein, data processing
software, transaction files, master files, printouts and other
computer materials and records) of the Debtor pertaining to any of the
Collateral; and
(ix) all Proceeds of all or any of the Collateral described in items (i)
through (viii) hereof.
The term "Collateral" means each and all of the items and property rights
described in items (i) through (ix) above.
Section 2.2 No Liability. The Security Interests are granted as security
only and shall not subject the Secured Party to, or transfer or in any way
affect or modify, any obligation or liability of the Debtor with respect to any
of the Collateral or any transaction in connection therewith.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
The Debtor represents and warrants to the Secured Party that:
Section 3.1 No Liens. Other than financing statements or other similar or
equivalent documents or instruments with respect to the Security Interests and
Permitted Liens, no financing statement, mortgage, security agreement or similar
or equivalent document or instrument covering all or any part of the Collateral
or Proceeds is on file or of record in any jurisdiction in which such filing or
recording would be effective to perfect a Lien on such Collateral or Proceeds.
No Collateral or Proceeds is in the possession of any Person (other than the
Debtor) asserting any claim thereto or security interest therein.
Section 3.2 Name. The name of the Debtor as it appears in its Articles of
Incorporation is as it appears on page 1 of this Agreement.
Section 3.3 Taxpayer Identification Number. The federal taxpayer
identification number of the Debtor is ________________________.
Section 3.4 Chief Executive Office. As of the date of this Agreement the
chief executive office of the Debtor in the United States is located at 0000
Xxxxx Xxxx Xxxxxx, Xxxxxx, Xxxxxxx, 00000.
Section 3.5 Records Location. The Debtor maintains all books and records
relating to the Collateral at its Chief Executive Office.
Section 3.6 Business Locations. All of the places of business of the Debtor
are as follows: same as Section 3.4 above.
Section 3.7 Filing Location. When UCC financing statements have been filed
with the Arizona and Nevada Secretaries of State or their designated filing
offices, the Security Interests shall constitute perfected security interests in
the Collateral and the Proceeds to the extent that a security interest therein
may be perfected by filing pursuant to the UCC, prior to all other Liens thereon
and rights of others therein except for Permitted Liens, if any, arising solely
by operation of law.
Section 3.8 No Inconsistent Agreements. The Debtor has not performed any
acts or signed any agreements which might prevent the Secured Party from
enforcing any of the terms of this Agreement or which would limit the Secured
Party in any such enforcement.
ARTICLE 4
COVENANTS
Section 4.1 Notice of Changes. The Debtor will not change its name,
identity, federal tax identification number or corporate structure in any manner
unless it shall have given the Secured Party at least 30 days' prior written
notice thereof. The Debtor will not change the location of (i) its chief
executive office or chief place of business, or (ii) where it keeps or holds any
Collateral or any records relating thereto, from the applicable location
described in Article 3 unless it shall have given the Secured Party at least 30
days' prior written notice thereof.
Section 4.2 Filing. The Debtor agrees that a carbon, photographic,
facsimile, photostatic or other reproduction of this Agreement or of a financing
statement is sufficient as a financing statement. The Debtor shall pay all costs
of or incidental to the recording or filing of any financing, amendment,
continuation, termination or other statements concerning the Collateral.
Section 4.3 Instruments. While an Event of Default has occurred and is
continuing, the Debtor will immediately deliver and pledge to the Secured Party
each Instrument, appropriately endorsed to the Secured Party; provided, that so
long as no Event of Default shall have occurred and be continuing, the Debtor
may refrain from such delivery and may retain possession of, for the purpose of
collection in the ordinary course, any such instruments received by it in the
ordinary course of business.
Section 4.4 Chattel Paper. The Debtor will immediately deliver and pledge
each Chattel Paper to the Secured Party, appropriately endorsed to the Secured
Party, provided that so long as no Event of Default shall have occurred and be
continuing, the Debtor may refrain from such delivery and may retain possession
of, for the purpose of collection in the ordinary course, any Chattel Paper
received by it in the ordinary course of business and the Secured Party shall,
promptly upon request of the Debtor, make appropriate arrangements for making
any other Chattel Paper pledged by the Debtor available to it for purposes of
presentation, collection or renewal (any such arrangement to be effected, to the
extent deemed appropriate to the Secured Party, against trust receipt or like
document).
Section 4.5 Accounts Collection. The Debtor shall use its best efforts to
cause to be collected from its account debtors, as and when due, any and all
amounts owing under or on account of each Account (including, without
limitation, Accounts which are delinquent, such Accounts to be collected in
accordance with lawful collection procedures) and shall apply forthwith upon
receipt thereof all such amounts as are so collected to the outstanding balance
of such Account. Subject to the rights of the Secured Party hereunder if an
Event of Default shall have occurred and be continuing (including without
limitation under Section 5.3 hereof), the Debtor may allow as adjustments to
amounts owing under its Accounts (i) an extension or renewal of the time or
times of payment, or settlement for less than the total unpaid balance, and (ii)
a refund or credit due, all in accordance with the Debtor's ordinary course of
business consistent with its historical collection practices and with sound
business judgment. The costs and expenses (including, without limitation,
attorneys' fees) of collection, whether incurred by the Debtor or the Secured
Party, shall be borne by the Debtor.
Section 4.6 Account Debtors. Upon the occurrence and continuance of an
Event of Default, and at any time thereafter, the Debtor upon request of the
Secured Party will promptly notify (and the Debtor hereby authorizes the Secured
Party to so notify) each account debtor in respect of any Account or General
Intangible that such Collateral has been assigned to the Secured Party
hereunder, and that any payments due or to become due in respect of such
Collateral are to be made directly to the Secured Party or its designee.
Section 4.7 Accounts Aging. The Debtor shall from time to time at the
request of the Secured Party furnish the Secured Party with a schedule of the
Accounts which shall include the names and addresses of each account Debtor. The
Debtor at its expense shall furnish to the Secured Party from time to time upon
request by the Secured Party a listing and aging of all Accounts. So long as no
Event of Default has occurred and is continuing, the foregoing may not be
requested by the Secured Party more than once in any calendar quarter; after the
occurrence and continuance of a Default, then the Secured Party shall be
entitled to make such requests at any time and from time to time.
Section 4.8 Transfer and Other Liens. The Debtor will not sell, lease,
transfer, exchange or otherwise dispose of the Collateral or the Proceeds, or
any part thereof, without the prior written consent of the Secured Party and
will not permit any Lien to attach to the Collateral or the Proceeds, or any
part thereof, other than Permitted Liens.
Section 4.9 Condition of Collateral. The Debtor will maintain, preserve and
keep its Collateral constituting tangible personal property at all times in
thorough repair and good working order and condition, and from time to time make
all needful repairs, renewals and additions so that its value and the Security
Interests shall at no time become materially impaired. The Debtor will not do or
permit anything to be done to the Collateral that may violate the terms of any
insurance covering the Collateral or any part thereof.
Section 4.10 Insurance. The Debtor shall at all times maintain insurance
upon the Collateral in commercially reasonable amounts.
Section 4.11 Right of Inspection and Information. The Debtor will furnish
to the Secured Party promptly upon request and in the form and content specified
by the Secured Party such data and information concerning the Collateral and the
Proceeds as the Secured Party may from time to time reasonably specify.
Section 4.12 Taxes. The Debtor will pay or cause to be paid as and when due
and payable all taxes, levies, license fees, assessments, and other impositions
levied on the Collateral or any part thereof before its use and operation.
Section 4.13 Specific Assignments. After the occurrence and continuance of
an Event of Default (but without limiting the generality of Section 4.14
hereof), upon request by the Secured Party, the Debtor will promptly execute and
deliver to the Secured Party written assignments and endorsements in form and
content satisfactory to the Secured Party of specific Chattel Paper and Accounts
or groups of either, but the Security Interest of the Secured Party hereunder
shall not be limited in any way by such assignments. Such Accounts and Chattel
Paper are to secure payment of the Indebtedness and are not sold to the Secured
Party whether or not any assignment thereof which is separate from this
Agreement is in form absolute.
Section 4.14 Further Assurances. On request of the Secured Party, the
Debtor will promptly (i) correct any defect, error or omission which may be
discovered in the contents of this Agreement or any financing statement relating
thereto or in the execution or acknowledgment of this Agreement or any financing
statement; (ii) execute, acknowledge, deliver and record such further
instruments (including, without limitation, further security agreements,
financing statements, continuation statements and assignments of accounts,
contract rights, general intangibles and proceeds) and do such further acts as
may be necessary, desirable or proper to carry out more effectively the purposes
of this Agreement and to more fully identify and subject to the Security
Interests hereof any property intended to be covered hereby, including without
limitation any renewals, additions, substitutions, replacements or accessions to
the Collateral; and (iii) execute, acknowledge, deliver and record any document
or instrument (including specifically any financing statement) necessary,
desirable or proper to protect the Lien and Security Interests hereunder against
the rights or interests of third persons. The Debtor shall pay all reasonable
costs connected with any of the foregoing.
Section 4.15 Collateral Indemnity. If the validity or priority of this
Agreement or any rights, security interests or other interests created or
evidenced hereby shall be attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Debtor will give prompt
written notice thereof to the Secured Party and at the Debtor's own cost and
expense will diligently endeavor to cure any defect that may be developed or
claimed, and will take all necessary and proper steps for the defense of such
legal proceedings, and the Secured Party (whether or not named as a party to
legal proceedings with respect thereto) is hereby authorized and empowered to
take such additional steps as in its judgment and discretion may be necessary or
proper for the defense of any such legal proceedings or the protection of the
validity or priority of this Agreement and the rights, security interests and
other interests created or evidenced hereby, and all reasonable expenses so
incurred of every kind and character shall be a demand obligation owing by the
Debtor to the Secured Party and shall be a part of the Indebtedness.
Section 4.16 Non-Liability. The Debtor hereby agrees to indemnify and hold
the Secured Party harmless from and against any and all liability, loss or
damage which the Secured Party may incur under or by reason of this Agreement,
and from any and all claims, costs, expenses and demands whatsoever which may be
asserted against the Secured Party by reason of any act of the Secured Party
under this Agreement or otherwise incurred by the Secured Party in connection
with the enforcement of its rights under this Agreement, other than any such
liability, loss, damage, claims, costs, expenses or demands arising from the
gross negligence or willful misconduct of the Secured Party.
ARTICLE 5
DEFAULT
Section 5.1 Collateral Account. Upon the occurrence and continuance of an
Event of Default, and at any time thereafter, the Secured Party may require the
Debtor to establish a cash collateral account (the "Collateral Account") in the
name and under the control of the Secured Party at the Secured Party or a bank
satisfactory to the Secured Party, which shall be Subject to access and
withdrawal by the Secured Party only. In such event, all payments (in the form
of cheeks, drafts, cash or otherwise) received by the Debtor in satisfaction, in
whole or in part, of any Accounts, Chattel Paper, Instruments or General
Intangibles (or Proceeds therefrom) of the Debtor shall be deposited by the
Debtor in the Collateral Account. The Debtor will deposit for credit to the
Collateral Account all such items of payment and remittances within one (1l
business day of the receipt thereof, and shall not commingle any such items of
payment and remittances with any of the Debtor's other property. Funds in the
Collateral Account are and shall be subject to a security interest in favor of
the Secured Party to secure the Indebtedness, and the Secured Party may apply or
cause to be applied (subject to collection) any or all of the balance from time
to time standing in the Collateral Account against the Indebtedness in such
order as determined by the Secured Party.
Section 5.2 General Authority. The Debtor hereby irrevocably appoints the
Secured Party its agent and attorney in fact, with full power of substitution,
in the name of the Debtor or the Secured Party, for the sole use and benefit of
the Secured Party, but at the Debtor's expense, to exercise, at any time (and
from time to time) while an Event of Default has occurred and is continuing, all
or any of the following powers with respect to all or any of the Collateral and
the Proceeds:
(i) to endorse the name of the Debtor upon any check, draft or other
instrument payable to the Debtor evidencing payment upon any Account,
Chattel Paper, Instrument or General Intangible,
(ii) to notify postal service authorities to change the address for
delivery of the Debtor's mail to a "lockbox" address designated and
controlled by the Secured Party, and to receive, open and dispose of
all mail addressed to the Debtor,
(iii) to demand, xxx for, collect, receive and give acquittance for any and
all monies due or to become due for or as Collateral (or Proceeds) or
by virtue thereof,
(iv) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect to any of the Collateral and the Proceeds, and
(v) to extend the time of payment of any or all of the Collateral and the
Proceeds and to make any allowance and other adjustments with
reference thereto.
The aforesaid mandate and power of attorney, being coupled with an interest, is
irrevocable so long as any of the Indebtedness remains outstanding.
Section 5.3 Accounts, Chattel Paper, Documents, General Intangibles,
Instruments and Other Collateral. While an Event of Default has occurred and is
continuing, the Debtor will make no material change to the terms of any Account,
Chattel Paper, Documents, General Intangibles, Instruments or other Collateral
without the prior written permission of the Secured Party. Upon the occurrence
and continuance of an Event of Default, the Debtor upon request of the Secured
Party will promptly notify (and the Debtor hereby authorizes the Secured Party
to so notify each obligor or account debtor in respect of any Collateral that
such Collateral has been assigned to the Secured Party hereunder, and that any
payments due or to became due in respect of such Collateral are to be made
directly to the Secured Party or its designee.
Section 5.4 Sale. Upon the occurrence and continuance of an Event of
Default, the Secured Party may exercise all rights of a secured party under the
UCC and other applicable law (including without limitation such rights under the
UCC or other applicable law authorizing the taking of self-help remedies by a
secured party in protecting its rights in, to and under collateral) and, in
addition, the Secured Party may, without being required to give any notice,
except as herein provided or as may be required by mandatory provisions of law,
(i) withdraw all cash in the Collateral Account and apply such cash and other
cash, if any, then held by it as Collateral or Proceeds against the Indebtedness
or (ii) sell the Collateral and the Proceeds or any part thereof at public or
private sale, for cash, upon credit or for future delivery, and at such price or
prices as the Secured Party may deem satisfactory. The Secured Party may be the
purchaser of any or all of the Collateral and Proceeds so sold at any public
sale (or, if the Collateral and Proceeds is of a type customarily sold in a
recognized market or is of a type which is the subject of widely distributed
standard price quotations, at any private sale). The Debtor will execute and
deliver such documents and take such other action as the Secured Party deems
necessary or advisable in order that any such sale may be made in compliance
with law. Upon any such sale the Secured Party shall have the right to deliver,
assign and transfer to the purchaser thereof the Collateral and Proceeds so
sold. Each purchaser at any such sale shall hold the Collateral and Proceeds so
sold to it absolutely and free from any claim or right of whatsoever kind,
including any equity or right of redemption of the Debtor which may be waived,
and the Debtor, to the extent permitted by law, hereby specifically waives all
rights of redemption, stay or appraisal which it has or may have under any law
now existing or hereafter adopted. The Debtor agrees that ten (10) days prior
written notice of the time and place of any sale or other intended disposition
of any of the Collateral and Proceeds constitutes "reasonable notification"
within the meaning of Section 9-504(3) (or any comparable section in any other
jurisdiction) of the UCC, except that shorter or no notice shall be reasonable
as to any Collateral and Proceeds which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market. The
notice (if any) of such sale shall (1) in case of a public sale, state the time
and place fixed for such sale, and (2) in the case of a private sale, state the
day after which such sale may be consummated. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Secured Party may fix in the notice of such sale. At any such sale the
Collateral and Proceeds may be sold in one lot as an entirety or in separate
parcels or portions, as the Secured Party may determine. The Secured Party shall
not be obligated to make any such sale pursuant to any such notice. The Secured
Party may, without notice or publication, adjourn any public or private sale or
cause the same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or place to
which the same may be so adjourned. In case of any sale of all or any part of
the Collateral and Proceeds on credit or for future delivery, the Collateral or
Proceeds so sold may be retained by the Secured Party until the selling price is
paid by the purchaser thereof, but the Secured Party shall not incur any
liability in case of the failure of such purchaser to take up and pay for the
Collateral and Proceeds so sold and, in case of any such failure, such
Collateral and Proceeds may again be sold upon like notice.
The Secured Party, instead of exercising the power of sale herein conferred
upon it, may proceed by a suit or suits at law or in equity to foreclose the
Security Interests and sell the Collateral and Proceeds, or any portion thereof,
under a judgment or decree of a court or courts of competent jurisdiction.
Section 5.5 Dealing with Collateral. For the purpose of enforcing any and
all rights and remedies under this Agreement after the occurrence and
continuance of an Event of Default, the Secured Party may (i) require the Debtor
to, and the Debtor agrees that it will, at its expense and upon the request of
the Secured Party, forthwith assemble all or any part of the Collateral and
Proceeds not otherwise in the possession or control of the Secured Party as
directed by the Secured Party and make it available at a place designated by the
Secured Party which is, in its opinion, reasonably convenient to the Secured
Party and the Debtor, and the Secured Party shall be entitled to specific
performance of this obligation, (ii) to the extent permitted by applicable law
of Arizona, Nevada, or any other state, enter, with or without process of law
and without breach of the peace, any premise where any of the Collateral or
Proceeds is or may be located, and without charge or liability to it seize and
remove such Collateral or Proceeds from such premises, (iii) have access to and
use the Debtor's books and records relating to the Collateral and Proceeds and
(iv) prior to the disposition of the Collateral and Proceeds, store or transfer
it without charge in or by means of any storage or transportation facility owned
or leased by the Debtor, process, repair or recondition it or otherwise prepare
it for disposition in any manner and to the extent the Secured Party deems
appropriate and, in connection with such preparation and disposition, use
without charge any trademark, trade name, copyright, patent or technical process
used by the Debtor.
Section 5.6 Limitation on Duty of Secured Party. Beyond the exercise of
reasonable care in the custody thereof, the Secured Party shall have no duty as
to any Collateral or Proceeds in its possession or control or in the possession
or control of any agent or bailee or any income thereon. The Secured Party shall
be deemed to have exercised reasonable care in the custody of the Collateral and
Proceeds in its possession if the Collateral and Proceeds is accorded treatment
substantially equal to that which it accords its own property, and shall not be
liable or responsible for any loss or damage to any of the Collateral or
Proceeds, or for any diminution in the value thereof, by reason of the act or
omission of any warehouseman, carrier, forwarding agency, consignee or other
agent or bailee selected by the Secured Party in good faith. The Debtor agrees
that the Secured Party shall not be obligated to preserve rights against prior
parties obligated on any Chattel Paper, Instruments or other Collateral.
Section 5.7 Appointment of Agent. At any time or times, in order to comply
with any legal requirement in any jurisdiction, the Secured Party may appoint a
bank or trust company or one or more other Persons with such power and authority
as may be necessary for the effectual operation of the provisions hereof and as
may be specified in the instrument of appointment.
Section 5.8 Expenses. In the event that the Debtor fails to comply with any
provisions of this Agreement or the Collateral Documents, such that the value of
any Collateral or the validity, perfection, rank or value of any Security
Interest hereunder is thereby diminished or potentially diminished or put at
risk, the Secured Party may, but shall not be required to, effect such
compliance on behalf of the Debtor, and the Debtor shall reimburse the Secured
Party for the reasonable costs thereof on demand. All insurance expenses and all
reasonable expenses of protecting, storing, warehousing, appraising, preparing
for sale, handling, maintaining and shipping the Collateral, any and all excise,
property, sales, and use taxes imposed by any federal, state or local authority
on any of the Collateral, all reasonable expenses in respect of periodic
appraisals and inspections of the Collateral to the extent the same may be
requested from time to time, and all reasonable expenses in respect of the sale
or other disposition thereof shall be borne and paid by the Debtor, or the
Debtor shall cause the same to be paid; and if the Debtor fails to promptly pay
or cause to be paid any portion thereof when due, the Secured Party may, at its
option, but shall not be required to, pay the same and charge the Debtor's
account therefor, and the Debtor agrees to reimburse the Secured Party therefor
on demand. All sums so paid or incurred by the Secured Party for any of the
foregoing and any and all other sums for which the Debtor may become liable
hereunder and all costs and expenses (including reasonable attorneys' fees,
legal expenses and court costs) incurred by the Secured Party in enforcing or
protecting the Security Interests or any of its rights or remedies under this
Agreement or the other Collateral Documents, shall, together with interest
thereon until paid at the Default Rate (as defined in the Note), be additional
Indebtedness hereunder and Debtor agrees to pay all of the foregoing sums
promptly on demand.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Attachment of Security Interest. The parties hereto understand
vied acknowledge that the Security Interests created by this Agreement shall
attach to the Collateral and the Proceeds in accordance with and pursuant to the
applicable provisions of the UCC as in effect in the place or places where the
Collateral and Proceeds may be located at the time of attachment.
Section 6.2 Notices. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served shall be deemed to
have been sufficiently given and served for all purposes (if mailed) three
calendar days after being deposited, postage prepaid, in the United States mail,
registered or certified mail, or (if delivered by express courier) one calendar
day after being delivered to such courier, or (if delivered in person) the same
day as delivery, in each case addressed (until another address or addresses are
given in writing in accordance with this Section) as follows:
If to Debtor: Renegade Venture Corporation
Attn: Xxx Xxxxxx, Chairman/CEO
0000 Xxxxx Xxxxx Xxxxxxxxx, #0
Xxxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile Number (000) 000-0000
If to Secured Party: American Capital Ventures, L.L.C.
Attn: Xxxx X. Xxxxxx, Managing Director
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Facsimile Number (000) 000-0000
Section 6.3 Amendment. Neither this Agreement nor any provisions thereof
may be changed, waived, discharged or terminated orally or in any manner other
than by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
Section 6.4 Waivers. No course of dealing on the part of the Secured Party,
its officers, employees, consultants or agents, nor any failure or delay by the
Secured Party with respect to exercising any of its rights, powers or privileges
under this Agreement shall operate as a waiver thereof.
Section 6.5 Cumulative Rights. The rights and remedies of the Secured Party
under this Agreement and the other Collateral Documents and Loan Documents (as
defined in the Note) shall be cumulative, and the exercise or partial exercise
of any such right or remedy shall not preclude the exercise of any other right
or remedy.
Section 6.6 Titles of Articles, Sections and Subsections. All titles or
headings to articles, sections, subsections or other divisions of this Agreement
or the exhibits hereto are only for the convenience of the parties and shall not
be construed to have any effect or meaning with respect to the other content of
such articles, sections, subsections or other divisions, such other content
being controlling as to the agreement between the parties hereto.
Section 6.7 Singular and Plural. Words used herein in the singular, where
the context so permits, shall be deemed to include the plural and vice versa.
The definitions of words in the singular herein shall apply to such words when
used in the plural where the context so permits and vice versa.
Section 6.8 Governing Law. This Agreement is a contract made under and
shall be construed in accordance with and governed by the laws of the United
States of America and the State of Arizona.
Section 6.9 Successors and Assigns.
(a) All covenants and agreements contained by or on behalf of the Debtor or
the Secured Party in this Agreement shall bind their respective successors and
assigns and shaII inure to the benefit of the Secured Party and the Debtor and
their respective successors and assigns.
(b) This Agreement is for the benefit of the Secured Party and for such
other Person or Persons as may from time to time become or be the holders of any
of the Indebtedness, and this Agreement shall be transferrable and negotiable,
with the same force and effect and to the same extent as the Indebtedness may be
transferrable, it being understood that, upon the transfer or assignment by the
Secured Party of any of the Indebtedness, the legal holder of such Indebtedness
shall have all of the rights granted to the Secured Party under this Agreement.
(c) The Debtor hereby recognizes and agrees that the Secured Party may,
from time to time, one or more times, transfer all or any portion of the
Indebtedness to one or more third parties. Such transfers may include, but are
not limited to, sales of participation interests in such Indebtedness in favor
of one or more third party lenders. Upon any permitted transfer or assignment of
the Indebtedness, the Secured Party may transfer and deliver any or all of the
Collateral to the transferee of such Indebtedness and such Collateral shall
secure any and all of the Indebtedness in favor of such a transferee or assignee
then existing and thereafter arising, and after any such transfer has taken
place, the Secured Party shall be fully discharged from any and all future
liability and responsibility to Debtor with respect to such Collateral, and the
transferee thereafter shall be vested with all the powers, rights and duties
with respect to such Collateral and shall acknowledge in writing that it shall
be liable for all of the obligations of the Secured Party hereunder.
Section 6.10 Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof; each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Debtor:
Renegade Venture(NEV) Corporation,
a Nevada corporation
By: /s/ Xxx Xxxxxx
Xxx Xxxxxx, Chairman/CEO
Secured Party:
American Capital Ventures, L.L.C.,
a Florida limited liability company
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, Managing Director
