Exhibit 10.2
LOAN AGREEMENT
The undersigned, XXXXXXXXXXX.XXX, INCORPORATED, a Nevada corporation
(hereinafter called "Borrower") to induce X-XXXX.XXX, INC. D/B/A HOMEMARK
(hereinafter called "Lender") to lend (but only to the extent provided herein
and otherwise in accordance with the terms and provisions hereof) sums not
exceeding in the aggregate ONE MILLION and 00/100 DOLLARS ($1,000,000.00)
(hereinafter called the "Loan"), hereby agree as follows:
1. LOAN AMOUNT. The principal amount of the Loan shall be a sum not
exceeding in the aggregate One Million and 00/100 Dollars ($1,000,000.00).
Lender shall make the following advances to the Borrower: $500,000.00 on June 6,
2001 and $500,000.00 on or before June 19, 2001.
2. LOAN DOCUMENTS. Borrower agrees to execute (and cause to be executed)
and deliver to, procure for and deposit with Lender the following (all of which
must be in form and substance reasonably acceptable to Lender):
(a) PROMISSORY NOTE. A Promissory Note (the "Note") executed by
Borrower in substantially the form as Exhibit "A" attached hereto and
incorporated herein by reference, evidencing the advances pursuant to this Loan,
on such terms and bearing such rate of interest as outlined below.
(i) Borrower agrees to pay accrued interest on the Maturity Date.
(ii) Borrower agrees to pay principal on the Maturity Date.
(iii) Interest shall accrue from the date of the Notes at the rate of
eight percent (8%) per annum simple interest.
(b) SECURITY AGREEMENT. Borrower shall execute and deliver to Lender
Security Agreements securing the payment of the Notes and Loan in substantially
the form as Exhibit "B" attached hereto and incorporated herein by reference.
(c) OTHER DOCUMENTS. Borrower shall execute such other documents and
instruments as Lender may reasonably require:
(i) to evidence the status, organization or authority of
Borrower to enter into, consummate and secure the Loan;
(ii) to evidence the existence and perfection of a security
interest in the collateral.
LOAN AGREEMENT - PAGE 1
3. NOTICE. Any notice or demand required or permitted to be given in
connection with the Loan shall be deemed to have been given, delivered and
received (whether actually received or not) five (5) days after deposited in any
official depository under the regular care and custody of the United States
Postal Service and sent by registered or certified mail, postage prepaid, return
receipt requested, addressed to the respective parties as follows:
If to Lender: X-Xxxx.xxx, Inc. d/b/a Homemark
00000 Xxxxxxxxx Xxxx, Xxxxx X
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Borrower: Xxxxxxxxxxx.xxx Incorporated
0000 X. XxXxxxxx Xxxx., Xxxxx X-00
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
Upon Borrower's compliance with the provisions of Paragraph 2 of this Loan
Agreement, Lender shall advance and disburse the first advance of $500,000.00
under Loan.
4. APPLICATION OF PROCEEDS. Application of the June 6, 2001 advance shall
be restricted to meeting the payroll obligations of Borrower for the payroll due
to employees on or about June 6, 2001.
5. MATURITY. All principal and interest under the Note for the June 6,
2001 advance shall be due and payable September 30, 2001 and all principal and
interest under the Note for the June 19, 2001 advance shall be immediately due
and payable on or before December 31, 2001.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower warrants,
represents, covenants, and agrees as follows:
(a) Borrower will permit Lender or Lender's representatives at any
and all times, to inspect and examine and copy all of Borrower's books and
records relating to the Loan and Notes.
(b) Borrower may not assign or otherwise transfer this Loan Agreement
or any right hereunder, and this Loan Agreement shall be binding upon Borrower
and the representatives and successors of Borrower.
(c) Borrower shall use its best efforts to protect and preserve the
fiscal integrity of the collateral for this loan and will not do or suffer to be
done any act whereby the value of any part of the collateral may be lessened.
LOAN AGREEMENT - PAGE 2
7. SAVINGS CLAUSE. All agreements between Borrower and Lender, whether
now existing or hereafter arising, are expressly limited so that in no
contingency or event whatsoever, whether by reason of deferment in accordance
with this Loan Agreement or advancement of the Loan proceeds, acceleration of
maturity of the Loan, or otherwise, shall the amount paid or agreed to be paid
to Lender for the use, forbearance or detention of the money to be loaned
hereunder or otherwise, or for the performance or payment of any covenant or
obligation contained herein or in any other document evidencing, securing or
pertaining to the Loan, exceed the maximum permissible under applicable law. All
sums paid or agreed to be paid to Lender for the use, forbearance, or detention
of the Loan shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full stated term of such
indebtedness until payment in full so that the actual rate of interest on
account of such indebtedness is uniform throughout the full stated term thereof.
The terms and provisions of this Paragraph shall control every other provision
of all agreements between Borrower and Lender.
8. SURVIVAL. All agreements, representations and warranties made in this
Loan Agreement and in any other collateral documents evidencing or securing
payment of the Note or in any way related thereto shall survive the making of
any and all advances hereunder.
This Loan Agreement is entered into at Reno, Nevada, effective on the 6th
day of June, 2001.
BORROWER:
XXXXXXXXXXX.XXX, INCORPORATED
a Nevada corporation
By: /s/ Xxxx Xxxxxx
------------------------------------------
Printed Name: Xxxx Xxxxxx
--------------------------------
Title: CEO
---------------------------------------
LENDER:
X-XXXX.XXX, INC. D/B/A HOMEMARK
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------------
Printed Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: CEO
---------------------------------------
LOAN AGREEMENT - PAGE 3
EXHIBIT A
PROMISSORY NOTE
$500,000.00 Dallas, Texas June 6, 2001
FOR VALUE RECEIVED, the undersigned, XXXXXXXXXXX.XXX, INCORPORATED, a
Nevada corporation ("Maker"), hereby unconditionally promises to pay to the
order of X-XXXX.XXX, INC. D/B/A HOMEMARK, a Texas corporation ("Payee"), at such
address holder hereof may designate in writing to Maker, the principal sum of
FIVE HUNDRED THOUSAND AND NO/100S DOLLARS ($500,000.00), bearing simple interest
at the rate of eight percent (8%) per annum on any and all amounts from time to
time remaining unpaid hereon from the date hereof until maturity, howsoever such
maturity may be brought about.
This Note shall be due and payable as follows: all principal and
accrued but unpaid interest shall be due and payable in full in one (1)
installment on or before September 30, 2001.
Payments of principal and interest shall be made in legal and lawful
money of the United States of America at the address of Payee.
It is the intention of Maker and Payee to conform strictly to the
usury laws in force in the State of Texas and the United States of America. It
is therefore agreed that (i) in the event that the maturity hereof is
accelerated by reason of an election by Payee, or if the same is prepaid prior
to maturity, all unearned interest, if any, shall be cancelled automatically, or
if theretofore paid, shall either be refunded to Maker or credited on the unpaid
principal amount of the Note, whichever remedy is chosen by Payee, (ii) the
aggregate of all interest and other charges constituting interest under
applicable law and contracted for, chargeable or receivable under this Note or
otherwise in connection with this loan transaction shall never exceed the
maximum amount of interest, nor produce a rate in excess of the maximum rate of
interest, which Payee may charge Maker under applicable law and in regard to
which Maker may not successfully assert the claim or defense of usury and (iii)
if any excess interest is provided for, it shall be deemed a mistake and the
same shall either be refunded to Maker or credited on the unpaid principal
amount hereof, and this Note shall be automatically deemed reformed so as to
permit only the collection of the maximum non-usurious rate and amount of
interest allowed by applicable law. All sums paid or agreed to be paid to the
holder or holders hereof for the use, forbearance or detention of the
indebtedness evidenced hereby shall, to the full extent permitted by applicable
law, be amortized, prorated, allocated and spread through the fullest term of
this Note.
1
If any payment of principal or interest on this Note shall become due
on a Saturday, Sunday or other day on which Payee is not open for business in
Dallas, Texas such payment shall be made on the next business day on which Payee
is open for business.
In the event of default in the payment of any installment of principal
when due hereunder, or upon the occurrence of any event of default under the
Security Agreement executed in connection herewith or any document or instrument
executed as security for this Note or otherwise in connection herewith, Payee
may declare the entirety of this Note, immediately due and payable, and failure
on the part of Payee to exercise said option and/or any other of its options,
rights and/or remedies shall not constitute a waiver on the part of Payee to
exercise the same at any other time.
Time is of the essence with respect to this Note.
If default is made in the payment of this Note and it is placed in the
hands of an attorney for collection, or collected through probate, bankruptcy or
other proceedings, or if suit is brought on this Note, Maker promises to pay to
Payee reasonable attorneys' fees in addition to all other amounts owing
hereunder.
The indebtedness evidenced by this Note is secured by a certain
Security Agreement ("Security Agreement") of even date herewith, executed by
Maker in favor of Payee . The terms and conditions of the Security Agreement are
incorporated herein by reference.
This Note shall be governed and construed in accordance with the laws
of the State of Texas, and, when and where applicable, the laws of the United
States of America. In the event any one or more provisions contained herein
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected thereby.
EXECUTED AND EFFECTIVE the day and year first written above.
MAKER:
XXXXXXXXXXX.XXX, INCORPORATED
a Nevada corporation
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
2
EXHIBIT B
SECURITY AGREEMENT AND FINANCING STATEMENT
This SECURITY AGREEMENT AND FINANCING STATEMENT (the "Security
Agreement"), is executed to be effective as of the 6th day of June, 2001, by and
between X-XXXX.XXX, INC. D/B/A HOMEMARK, a Texas corporation (hereinafter
referred to as the "Secured Party"), and XXXXXXXXXXX.XXX, INCORPORATED, a Nevada
corporation (hereinafter referred to as the "Secured Party").
P R E M I S E S:
WHEREAS, Debtor has requested that Secured Party extend credit to and loan
Debtor pursuant to a Loan Agreement the amount of $500,000 (the "Indebtedness");
and
WHEREAS, Secured Party is willing to extend credit to Debtor and make the
loan upon the terms and conditions as may be agreed and set forth from time to
time (hereinafter together with any and all amendments, modifications and
supplements thereto and thereof this arrangement is referred to as the "Credit
Agreement");
WHEREAS, Debtor will benefit materially from Secured Party's extension of
credit as contemplated by the Credit Agreement; and
WHEREAS, the Credit Agreement requires, among other things, as a condition
to the effectiveness thereof that this Security Agreement be in effect, pursuant
to which Debtor, shall grant Creditor a security interest in certain properties
of Debtor.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby expressly acknowledged and
confessed, the parties hereto hereby agree as follows:
1. DEFINITIONS. The capitalized terms used herein shall have the meanings
respectively ascribed to each of said terms hereinbelow:
"COLLATERAL" shall mean the Security and all other personal property
of Debtor in which Secured Party otherwise has a security interest.
"CREDIT AGREEMENT" shall have the meaning ascribed to it in the
opening recitals hereof.
"DEBTOR" shall have the meaning ascribed to it in the opening recitals
hereof.
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 1
"DOCUMENTS" shall mean all documents, instruments and chattel paper of
every nature, whether now existing or hereafter acquired or created, and shall
include, in any event, all documents within the meaning of the Uniform
Commercial Code in effect in any applicable jurisdiction.
"EVENT OF DEFAULT" shall have the meaning ascribed to it in SECTION
14(e) of this Security Agreement.
"INSURANCE POLICIES" shall mean all policies of insurance of every
kind and nature, whether the same are presently existing or are hereafter
acquired, including, without limitation, all claims or rights to payment and
proceeds heretofore or hereafter arising from such policies with respect to any
of the Collateral.
"LOAN DOCUMENTS" shall mean invoices, statements of account, work
orders, this Security Agreement and any and all other documents and instruments
related thereto or executed as security for the indebtedness governed thereby or
otherwise in connection therewith, as each of said documents and instruments may
be amended, modified or supplemented from time to time.
"PROCEEDS" shall mean (i) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to Debtor from time to time with respect
to any of the Collateral, (ii) any and all payments (in any form whatsoever)
made or due and payable to Debtor, from time to time in connection with the
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental body, authority, bureau or agency (or
any person acting under color of governmental authority), (iii) any and all
other amounts from time to time paid or payable under or in connection with any
of the Collateral and (iv) shall include, in any event, all proceeds within the
meaning of the Uniform Commercial Code in effect in any applicable jurisdiction.
"RECORDS" shall mean all books, correspondence, credit files, records
and other documents, whether presently existing or hereafter acquired or
created, including, without limitation, all computer programs, computer tapes,
cards, and other paper and documents in the possession or control of Debtor or
in the possession or control of any affiliate or computer service bureau
relating specifically to the Collateral.
"SECURED OBLIGATIONS" shall have the meaning ascribed to it in SECTION
2 of this Security Agreement; it being expressly agreed and understood that
without in any way whatsoever limiting the generality of such definition
contained in said SECTION 2, Secured Obligations shall include, as of any date,
(i) the unpaid principal of and accrued interest on the Indebtedness governed by
the Credit Agreement and (ii) expenses and charges (including, without
limitation, indemnification or reimbursement obligation and attorneys' fees)
arising under the Credit Agreement, this Security Agreement and/or any other of
the Loan Documents.
"SECURED PARTY" shall have the meaning ascribed to it in the opening
recitals hereof.
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 2
"SECURITY" has the meaning assigned in SECTION 2 of this Security
Agreement.
2. GRANT OF SECURITY INTEREST. As security for the prompt and complete
payment, performance and discharge of all indebtedness and covenants,
conditions, agreements and other obligations of Debtor to Secured Party
(hereinafter collectively called the "Secured Obligations"), including, but not
limited to, all such indebtedness (including principal, interest and expenses
and costs), covenants, conditions, agreements and other obligations under or by
reason of the Indebtedness, the Credit Agreement, this Security Agreement and/or
any and all other Loan Documents or obligations of Debtor to Secured Party,
Debtor hereby assigns and pledges to Secured Party, and grants to Secured Party
a security interest in the following: (all of which are hereinafter collectively
called the "Security"):
(a) all Personal Property of Debtor wherever located.
(b) all Documents;
(c) all Insurance Policies;
(d) all additions, accessions, accessories, enlargements,
substitutions and replacements to and of each and every of the foregoing; and
(e) all Proceeds and products of any and/or all of the foregoing.
3. REPRESENTATIONS AND WARRANTIES. Debtor does hereby warrant and
represent to Secured Party as follows:
(a) Debtor has full power and authority to enter into this Security
Agreement and to grant to Secured Party the assignments, liens, pledges and
security interests contained herein;
(b) Debtor is, or in the case only of items hereinafter acquired
comprising part of the Collateral will be, the legal and equitable owner of each
item of Collateral;
(c) The security interest granted by this Security Agreement will be,
subject to prior security interests, liens, charges, right of setoff,
restriction, charge, and many of such items has been previously assigned,
pledged, or otherwise encumbered by the granting of a security interest in favor
of other parties, all of which Secured Party acknowledges and accepts;
(d) None of the Collateral is affixed to nor will become affixed to
real estate nor is any of the Collateral a fixture nor will any of the
Collateral become a fixture.
4. FUTURE ASSURANCES. Debtor agrees to execute and deliver, immediately
upon the request of Secured Party, all such further assurances, assignments,
financing statements and
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 3
other documents and writings and to do all such further acts and things as
Secured Party may from time to time require to protect, assure defend and/or
enforce its interests, rights and remedies created by, provided in or emanating
from this Security Agreement and to collect the Collateral, all at Debtor's sole
cost and expense.
5. LOCATIONS. Without the express prior written consent of Secured Party,
Debtor shall not remove any item comprising the security outside the states in
which they are located.
6. USE. Debtor hereby agrees that it shall not misuse, abuse, waste or
allow to deteriorate, except for the ordinary wear and tear of its intended
primary use, if applicable, any item compromising the Collateral nor allow or
permit the same to be misused, abused, wasted or to deteriorate, except for the
ordinary wear and tear of its intended primary use, if applicable. Nor shall
Debtor use any item comprising the Collateral, or permit the use thereof, in
violation of any applicable law nor of any term or provision of the Credit
Agreement. Debtor further agrees that it shall not permit the Collateral to
become attached to any real property or to become a fixture.
7. INSURANCE. Debtor shall insure the Collateral with companies
acceptable to Secured Party against such casualties and in such amounts as
Secured Party shall require. All insurance policies shall name Secured Party as
its interests may appear as loss payee and such policies evidencing same shall
be furnished to Secured Party. All insurance policies shall provide for written
notice to Secured Party at least thirty (30) days prior to cancellation.
8. PARTIES LIABLE ON COLLATERAL. Debtor will preserve the liability of
all account debtors and other persons liable with respect to any of the
collateral and will preserve the priority of all security therefor. Secured
Party shall have no duty to preserve such liability or security, but may do so
at the expense of Debtor.
9. OTHER ENCUMBRANCES. Except as otherwise acknowledge by Secured Party
that prior security interests exist on much of the Collateral, Debtor shall
attempt to maintain the Collateral free from any security interest, lien,
charge, encumbrance or other charge adverse to Secured Party, whether superior
or inferior, and shall defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein adverse to Secured Party.
10. DISCHARGE OF TAXES, LIENS, ETC. BY SECURED PARTY. At its sole option,
Secured Party may discharge any taxes, liens, security interests or other
encumbrances at any time levied or placed on any item comprising the Collateral,
may pay for insurance thereon and may pay for the maintenance and preservation
thereof, and Debtor agrees to reimburse Secured Party pursuant to the foregoing
authorization, plus interest thereon at the rate specified in Section 12 of this
Security Agreement.
11. POWER OF ATTORNEY. Debtor hereby appoints Secured Party as its agent
and attorney-in-fact with full power in Debtor's name and behalf to do each and
every act and thing which Debtor may or is required to do under this Agreement;
however, Secured Party shall in no event be required to take any action
whatsoever hereunder. Without limiting the generality of the foregoing, Secured
Party may execute, sign, endorse, transfer or deliver in the name of
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 4
Debtor or otherwise notes, checks, drafts and/or other instruments for the
payment of money and receipts, certificates of origin, applications for
certificates of title or any other documents appropriate to evidence, perfect or
realize upon the security interest and obligations created by this Security
Agreement.
12. SECURED PARTY'S RIGHTS AND REMEDIES.
(a) (i) Secured Party may at any time, notify any one or more of the
account debtors of Debtor and other persons whose obligations to Debtor have
been assigned, or in which Secured Party is granted a security interest,
hereunder and any other party Secured Party deems appropriate of this Security
Agreement, of the security interests and assignments contained herein, and that
payments under such obligations or in respect thereof shall be made directly to
Secured Party and/or to a lock box designated by Secured Party. If requested by
Secured Party, debtor will so notify such account debtors and other persons.
Secured Party may in its own name or in the name of Debtor communicate with such
account debtors and other persons.
Secured Party shall also have the right at any time to collect any
money or property attributable to the interests of Debtor in the Collateral and
to enforce, whether judicially or non-judicially, any and all of Debtor's rights
and remedies respecting such money or property and to apply the same and/or the
proceeds thereof as security for or in reduction of the Secured Obligations. The
foregoing notwithstanding and without in any way limiting the generality of the
provisions of this Security Agreement, Debtor and Secured Party agree that
Secured Party shall not be liable in the collection of any such money or
property, except that Secured Party shall be obligated to apply the same as and
when received for the account of Debtor and/or as security for or in reduction
of the Secured Obligations, and it shall not be obligatory upon Secured Party to
file suit or take other action to enforce any rights of Debtor hereby assigned
or in which Secured Party is granted a security interest hereunder, unless
Secured Party is requested so to do by Debtor and unless and until Secured Party
is, to its satisfaction, indemnified by Debtor against costs of court,
attorney's fees, other expenses of collection and any and all other exposure of
Secured Party in connection therewith. If pursuant to the terms hereof Secured
Party obtains possession of any property, including money, and the same is held
as security for the Secured Obligations, same shall be deemed part of the
Collateral and subject to the terms hereof.
(ii) All payments received by Debtor under or in connection with
any of the Collateral shall be held by Debtor in trust for Secured Party, shall
be segregated from all other funds of Debtor and shall, forthwith upon receipt
by Debtor, be turned over to the Secured Party, in the same form as received by
Debtor (duly endorsed to Secured Party, if appropriate), and Secured Party shall
apply the same as security for, or in reduction of, the Secured Obligations.
Debtor further agrees that upon the request of Secured Party, Debtor will
deposit, immediately upon receipt and in the form received, and properly
endorsed all payments received on the Collateral in a special account with and
designated by Secured Party. Any funds in such account shall be applied by
Secured Party as security for, or in reduction of, the Secured Obligations.
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 5
(b) Upon the occurrence of an Event of Default and at any time
thereafter, Secured Party, without in any way whatsoever waiving such Event of
Default, may, at its sole option, take possession of any one or more items
comprising the Collateral (of which it does not previously have possession) and
have, hold, manage, lease, and/or operate, the same on such terms and for such
period of time as Secured Party may deem proper; and further may collect and
receive all rents, issues, products, proceeds and profits therefrom, with full
power to make from time to time all alterations, renovations, repairs and
replacements thereto and thereof as may seem appropriate to Secured Party, and
to apply such rents, issues, products, proceeds and profits to the payment of
(1) the cost of all such alterations, renovations, repairs and replacements and
expenses incident to taking and retaining possession of such one or more items
of Security and the management and operation thereof and/or the discharge of all
taxes, charges, claims, assessments and any other encumbrances which may exist
thereon and the cost of keeping said property insured together with interest
thereon at the lesser of eighteen percent (18%) or the highest nonusurious rate
of interest allowed by applicable law or (2) the Secured Obligations together
with all costs and attorneys fees, all in such order of priority as to any of
such items as Secured Party in its discretion may determine, any statute, law,
custom or use to the contrary notwithstanding.
(c) Upon the occurrence of an Event of Default and at any time
thereafter, Secured Party may exercise, in addition to all other rights and
remedies granted to it in this Security Agreement, all rights and remedies of a
secured party under the Uniform Commercial Code as in effect in any jurisdiction
in which any of the Collateral may at the time be located and all rights and
remedies which Secured Party may have pursuant to the terms of the Credit
Agreement. Without limiting the generality of the foregoing, Debtor hereby
expressly agrees that in any such event, Secured Party, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified below of time and place of public or private sale) to or upon
Debtor or any other person (all and each of which demands, advertisements and/or
notices are hereby expressly waived), may forthwith collect, receive,
appropriate and/or realize upon the Collateral, or any part thereof, and/or may
forthwith sell, lease assign, give option or options to purchase, or sell or
otherwise dispose of and deliver the Collateral, or any part thereof, (or
contract to do so), or any part thereof, in one or more parcels at public or
private sale or sales, at any exchange, broker's board or at any of Secured
Party's offices or elsewhere at such prices as Secured Party may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.
Secured Party shall have the right upon such public sale or sales, and to the
fullest extent permitted by law, upon any such private sale or sales, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption in Debtor, which right is hereby expressly waived and
released. Debtor further agrees, at the request of Secured Party, to assemble
the Collateral, and to make it available to Secured Party at places which
Secured Party shall reasonably select, whether at Debtor's premises or
elsewhere. Secured Party shall apply the net proceeds, if any, of any such
collection, recovery, receipt, appropriation, realization or sale, to the
payment of the Secured Obligations. To the extent permitted by applicable law,
Debtor waives all claims, damages and demands against Secured Party arising out
of the repossession, retention or sale of the Collateral. Debtor agrees that
Secured Party need not give more than 10 days' notice (which notification shall
be deemed given when mailed, postage prepaid, addressed to Debtor at its address
determined pursuant to SECTION 14 hereof) of the time and place of any public
sale or of the time after which
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 6
a private sale may take place and that such notice is reasonable notification of
such matters; provided however, no notification need be given to Debtor if it
has signed after default a statement renouncing or modifying any right to
notification of sale or other intended disposition. Secured Party shall not be
liable for any depreciation in the value of the Collateral or any part thereof.
(d) Debtor hereby expressly waives grace, notice, demand,
presentment, protest, notice of protest, notice of intention to accelerate,
notice of acceleration and all other notice of any kind whatsoever, in
connection with this Security Agreement and the Collateral, or any part thereof,
to the fullest extent permitted by applicable law.
(e) The following events, acts or occurrences shall constitute
"Events of Default" hereunder:
(i) The Debtor shall default in the payment of its obligations
to Secured Party pursuant to the Credit Agreement; or
(ii) The Debtor shall default in the performance or observance of
any term, covenant, condition or agreement on its part to be performed or
observed under the Credit Agreement; or
(iii) The Debtor shall default in the performance or observance
of any term, covenant, condition or agreement on its part to be performed or
observed hereunder (and not constituting an Event of Default under any other
clause of this Section), and such default shall continue unremedied for ten (10)
days after the earlier of the date on which (a) the Debtor knows or reasonably
should have known thereof, or (b) the Secured Party has given the Debtor notice
thereof; or
(iv) Either (a) the Debtor or any of its Subsidiaries shall
become insolvent or generally fail to pay, or admit in writing its inability to
pay, its debts as they become due, or shall voluntarily commence any proceeding
or file any petition under any bankruptcy, insolvency or similar law or seeking
dissolution or reorganization or the appointment of a receiver, trustee,
custodian or liquidator for itself or a substantial portion of its property,
assets or business or to effect a plan or other arrangement with its creditors,
or shall file any answer admitting the jurisdiction of the court and the
material allegations of an involuntary petition filed against it in any
bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankruptcy
or shall make a general assignment for the benefit of creditors, or shall
consent to, or acquiesce in the appointment or, a receiver, trustee, custodian
or liquidator for itself or a substantial portion of its property, assets or
business; or (b) an order for relief is entered against the Debtor or any of its
Subsidiaries; or (c) corporate action shall be taken by the Debtor or any of its
Subsidiaries for the purpose of effectuating any of the foregoing; or
(v) Involuntary proceedings or an involuntary petition shall be
commenced or filed against the Debtor or any of its Subsidiaries under any
bankruptcy, insolvency or similar law or seeking the dissolution or
reorganization of the Debtor or any of its Subsidiaries or the appointment of a
receiver, trustee, custodian or liquidator for the Debtor or
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 7
any of its Subsidiaries or of a substantial part of the property, assets or
business of the Debtor or any of its Subsidiaries, or any writ, judgment,
warrant of attachment, execution or similar process shall be issued or levied
against a substantial part of the property assets or business of the Debtor or
any of its Subsidiaries, and such proceedings or petition shall not be dismissed
or such writ, judgment, warrant of attachment, execution or similar process
shall not be released, vacated or fully bonded, within thirty (30) days after
commencement, filing or levy, as the case may be; or
13. NOTICES. Except where telephone instructions or notices are authorized
hereby to be given, all notices, demands, instructions and other communications
required or permitted to be given to or made upon any party hereto or any other
Person shall be in writing and shall be personally delivered or sent by
registered or certified mail, postage prepaid, return receipt requested, or by
courier (with messenger delivery specified in the case of a telegram),
nationally recognized overnight delivery service, or by telecopier. Unless
otherwise specified in a notice sent or delivered in accordance with the
foregoing provisions of this Section, notices, demands, instructions and other
communications in writing shall be given to or made upon the respective parties
hereto at their respective addresses (or to their respective telecopier numbers)
indicated below, and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party below:
If to Secured Party: X-Xxxx.xxx, Inc. d/b/a Homemark
00000 Xxxxxxxxx Xxxx, Xxxxx X
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
If to Debtor: Xxxxxxxxxxx.xxx, Incorporated
0000 X. XxXxxxxx Xxxx., Xxxxx X-00
Xxxx, Xxxxxx 00000
Fax: (000) 000-0000
All written notices, demands, instructions and other communications
hereunder shall be deemed to have been given and received (i) if mailed, four
Business Days after deposit with the United States Postal Service in the manner
set forth above or when receipted for at the address set forth above for the
Person to whom it is sent, whichever is earlier or (ii) if given by any other
method, when received.
14. SEVERABILITY. Any provision of this Security Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. NO WAIVER; CUMULATIVE REMEDIES. Secured Party shall not by any act,
delay, omission, indulgence, release of security, release of any person
(including any endorser, guarantor or surety), or otherwise be deemed to have
waived any of its rights or remedies hereunder or available to Secured Party at
law or equity or otherwise, and no waiver shall be valid unless in writing,
signed by Secured Party, and then only to the extent therein set forth. A waiver
by Secured Party of any right or remedy hereunder on any one occasion shall not
be
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 8
construed as a bar to any right or remedy which Secured Party would otherwise
have had on any future occasion. No failure to exercise, nor any delay in
exercising, on the part of Secured Party, any right, power or privilege or at
law hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights, remedies, powers and recourses hereunder provided are cumulative and
may be exercised singly or concurrently, and are not exclusive of any rights,
remedies, powers and recourses provided by law or elsewhere granted to Secured
Party, such that this Security Agreement is made and accepted without prejudice
to any of the rights remedies, powers and recourses possessed by Secured Party.
Further, the right of Secured Party to collect the indebtedness secured hereby
and to enforce any other security therefor may be exercised by Secured Party
either prior to, simultaneous with, or subsequent to any action taken by it
hereunder.
16. WAIVERS; AMENDMENTS. None of the terms and provisions of this Security
Agreement may be waived, altered, modified or amended except by an instrument in
writing executed by the parties hereto.
17. LIMITATION BY LAW. All rights, remedies, powers and resources provided
in this Security Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all such
provisions are intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent necessary so that
they will not render this Security Agreement invalid, unenforceable in whole or
in part, or not entitled to be recorded, registered, or filed under the
provisions of any applicable law.
18. WAIVER OF MARSHALLING. All rights to marshalling of assets of Debtor,
including any such right with respect to the Collateral, are hereby waived by
Debtor.
19. SECURITY AGREEMENT AS FINANCING STATEMENT. Secured Party is authorized
to file this Security Agreement or a photocopy hereof as a financing statement
with respect to any one or more items comprising the Collateral.
20. NOTICE OF CHANGES, ETC. Debtor will notify Secured Party immediately
(i) of any material change in the Collateral, (ii) of a change in Debtor's chief
place of business and (iii) of the occurrence of any Event of Default.
21. SUCCESSORS AND ASSIGNS. Secured Party may assign this Security
Agreement and its rights hereunder and/or the indebtedness secured hereby from
time to time. Further, this Security Agreement shall be binding upon Debtor and
its successors and assigns and shall inure to the benefit of Secured Party and
its successors and assigns; provided, however, (i) that the foregoing shall not
imply or be construed to imply that Debtor may dispose of any item comprising
the Collateral except as specifically allowed in the Credit Agreement and (ii)
that nothing contained herein, the Credit Agreement, any other of the Loan
Documents or elsewhere is intended or shall be construed to give any other
person any right, remedy or claim under, to or in respect of any of the
foregoing documents or the Collateral or any part thereof.
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 9
22. APPLICABLE LAW. This Security Agreement shall be governed by, and be
construed and interpreted in accordance with, the laws of the State of Texas in
force at the date of this instrument, except as required by mandatory provisions
of law and except to the extent that remedies provided under the laws of any
state other than Texas are governed by the laws of such state.
23. GENDER. Where appropriate, the use of one gender shall be construed as
the others or any of them; and the singular number shall be construed to include
the plural and vice versa.
24. COUNTERPARTS. This Security Agreement may be executed in several
counterparts, and by the parties hereto on separate counterparts, and each
counterpart, when so executed and delivered, shall constitute an original
instrument, and all such counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, Debtor and Secured Party have caused this Security
Agreement and Financing Statement to be executed and delivered by their duly
authorized officers as of the date first set forth above.
DEBTOR:
XXXXXXXXXXX.XXX, INCORPORATED
a Nevada company
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
SECURED PARTY:
X-XXXX.XXX, INC. D/B/A HOMEMARK
a Texas corporation
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
SECURITY AGREEMENT AND FINANCING STATEMENT - Page 10
