Exhibit 10.2
COLLATERAL ASSIGNMENT
AND GENERAL SECURITY AGREEMENT
This COLLATERAL ASSIGNMENT AND
GENERAL SECURITY AGREEMENT (this “ Agreement
”), dated as of April 8 th , 2005, is made
by and between Immediatek, Inc., a Nevada corporation, its wholly
owned subsidiary DiscLive, Inc., a Delaware corporation
(collectively referred to herein as “ Company
”) and Osias Blum (“ Secured Party
”).
W I T N E S S E T H:
WHEREAS, contemporaneously with this
Agreement, Immediatek, Inc., a Nevada corporation (“
Borrower ”) entered into that certain Secured
Promissory Note by and between Borrower and Secured Party (the
“ Note ”); and
WHEREAS, to induce Secured Party to
execute the Note, Company has agreed to execute and deliver to the
Secured Party this Agreement for the benefit of the Secured Party
and to grant to the Secured Party a first priority security
interest in certain property of Company to secure the prompt
payment, performance and discharge in full of all of
Company’s obligations under the Note.
NOW, THEREFORE, in consideration of
the agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1.
Certain Definitions . As used in this Agreement, the
following terms shall have the meanings set forth in this
Section 1. Terms used but not otherwise defined in this
Agreement that are defined in Article 9 of the UCC (such as
“ proceeds ”) shall have the respective
meanings given such terms in Article 9 of the UCC.
(a)
“ Collateral ” means the collateral in
which the Secured Party is granted a security interest by this
Agreement. Collateral, as that term is used herein, shall include
the following, whether presently owned or existing or hereafter
acquired or coming into existence, and all additions and accessions
thereto and all substitutions and replacements thereof, and all
proceeds, products and accounts thereof, including, without
limitation, all proceeds from the sale or transfer of the
Collateral and all proceeds of insurance covering the same:
All
assets of the Company, including but not limited to all property
described in Schedule “A” attached hereto.
Notwithstanding the foregoing, the Collateral shall not include
those assets listed on Schedule “B” attached
hereto.
(b)
“ Indebtedness ” means all of the
Company’s obligations under this Agreement and the Note, in
each case, whether now or hereafter existing, voluntary or
involuntary, direct or indirect, absolute or contingent, liquidated
or unliquidated, whether or not jointly owed with others, and
whether or not from time to time decreased or extinguished and
later decreased, created or incurred, and all or any portion of
such obligations or liabilities that are paid, to the extent all or
any part of such payment is avoided or recovered directly or
indirectly from the Secured Party as a preference, fraudulent
transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to
time.
(c)
“ UCC ” means the Uniform Commercial
Code, as currently in effect in the States of Nevada and
Delaware.
2.
Grant of Security Interest . As an inducement for the
Secured Party to execute a Note and to secure the complete and
timely payment, performance and discharge in full, as the case may
be, of the Indebtedness, the Company hereby, unconditionally and
irrevocably, pledges, grants and hypothecates to the Secured Party,
a continuing security interest in, a continuing first lien upon, an
unqualified right to possession and disposition of and a right of
set-off against, in each case to the fullest extent permitted by
law, all of the Company’s right, title and interest of
whatsoever kind and nature in and to the Collateral (the “
Security Interest ”).
3.
Representations, Warranties, Covenants and Agreements of the
Company . The Company represents and warrants to, and covenants
and agrees with, the Secured Party as follows:
(a)
The Company has the requisite corporate power and authority to
enter into this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by
the Company of this Agreement and the filings contemplated therein
have been duly authorized by all necessary action on the part of
the Company and no further action is required by the Company. This
Agreement constitutes a legal, valid and binding obligation of the
Company enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditor’s rights generally.
(b)
The Company represents and warrants that it has no place of
business or offices where its respective books of account and
records are kept (other than temporarily at the offices of its
attorneys or accountants), except as set forth on
Schedule C attached hereto.
(c)
The Company is the sole owner of the Collateral, free and clear of
any liens, security interests, encumbrances, rights or claims, and
is fully authorized to grant the Security Interest in and to pledge
the Collateral. There is not on file in any governmental or
regulatory authority, agency or recording office an effective
financing statement, security agreement, license or transfer or any
notice of any of the foregoing (other than those that have been
filed in favor of the Secured Party pursuant to this Agreement)
covering or affecting any of the Collateral. So long as this
Agreement shall be in effect, the Company shall not execute and
shall not knowingly permit to be on file in any such office or
agency any such financing statement or other document or instrument
(except to the extent filed or recorded in favor of the Secured
Party pursuant to the terms of this Agreement).
(d)
No written claim has been received that any Collateral or the
Company’s use of any Collateral violates the rights of any
third party. There has been no adverse decision to the
Company’s claim of ownership rights in or exclusive rights to
use the Collateral in any jurisdiction or to the Company’s
right to keep and maintain such Collateral, and there is no
proceeding involving said rights pending or, to the best knowledge
of the Company, threatened before any court, judicial body,
administrative or regulatory agency, arbitrator or other
governmental authority.
(e)
The Company shall at all times maintain its books of account and
records relating to the Collateral at its principal place of
business at the location set forth on Schedule C
attached hereto and may not relocate such books of account and
records unless it delivers to the Secured Party at least
30 days prior to such relocation (i) written notice of
such relocation and the new location thereof (which must be within
the United States) and (ii) evidence that appropriate
financing statements and other necessary documents have been filed
and recorded and other steps have been taken to perfect the
Security Interest to create in favor of the Secured Party valid,
perfected and continuing first priority liens in the
Collateral.
(f)
This Agreement creates in favor of the Secured Party a valid
security interest in the Collateral securing the payment and
performance of the Indebtedness and, upon making the filings
described in the immediately following sentence, a perfected first
priority security interest in such Collateral. Except for the
filing of financing statements under the UCC with the jurisdictions
indicated on Schedule D attached hereto, no
authorization or approval of or filing with or notice to any
governmental authority or regulatory body is required either
(i) for the grant by the Company of, or the effectiveness of,
the Security Interest granted hereby or for the execution, delivery
and performance of this Agreement by the Company or (ii) for
the perfection of or exercise by the Secured Party of his rights
and remedies hereunder.
(g)
The execution, delivery and performance of this Agreement does not
conflict with or cause a breach or default, or an event that with
or without the passage of time or notice, shall constitute a breach
or default, under any agreement to which the Company is a party or
by which the Company is bound. No consent (including, without
limitation, from creditors of the Company) is required for the
Company to enter into and perform its obligations hereunder.
(h)
The Company shall at all times maintain the liens and Security
Interest provided for hereunder as valid and perfected liens and
security interests in the Collateral in favor of the Secured Party
until this Agreement and the Security Interest hereunder shall
terminate pursuant to Section 11. The Company hereby agrees to
defend the same against any and all persons. The Company shall
safeguard and protect all Collateral for the account of the Secured
Party. At the request of the Secured Party, the Company will pay
the cost of filing one or more financing statements pursuant to the
UCC (or any other applicable statute) in all public offices
wherever filing is, or is deemed by the Secured Party to be,
necessary or desirable to effect the rights and obligations
provided for herein. Without limiting the generality of the
foregoing, the Company shall pay all fees, taxes and other amounts
necessary to maintain the Collateral and the Security Interest
hereunder, and the Company shall obtain and furnish to the Secured
Party from time to time, upon demand, such releases and/or
subordinations of claims and liens which may be required to
maintain the priority of the Security Interest hereunder.
(i)
The Company will not transfer, pledge, hypothecate, encumber,
license, sell or otherwise dispose of any of the Collateral without
the prior written consent of the Secured Party.
(j)
The Company shall keep and preserve the Collateral in good
condition, repair and order and shall not operate or locate any
such Collateral (or cause any such Collateral to be operated or
located) in any area excluded from insurance coverage.
(k)
The Company will at all times cause to be carried and maintained on
and in respect of the Collateral, insurance in such amounts,
against such risks and with such insurance companies as the Secured
Party shall from time to time require or approve, as evidenced by
insurance certificates provided to Secured Party. The Company will
cause each such insurance company to agree to advise the Secured
Party promptly of any default in the payment of any premium and of
any other act or omission on the part of the Company which might
invalidate or render unenforceable, in whole or in part, any
insurance on the Collateral.
(l)
The Company shall, within ten (10) days of obtaining knowledge
thereof, advise the Secured Party promptly, in sufficient detail,
of any substantial change in the Collateral, and of the occurrence
of any event which would have a material adverse effect on the
value of the Collateral or on the Secured Party’s security
interest therein.
(m)
The Company shall promptly execute and deliver to the Secured Party
such further documents and take such further action as the Secured
Party may from time to time request and may in his sole discretion
deem necessary to perfect, protect or enforce his Security Interest
in the Collateral.
(n)
The Company shall permit the Secured Party and his representatives
and agents to inspect the Collateral at any time, and to make
copies of records pertaining to the Collateral as may be requested
by the Secured Party from time to time.
(o)
The Company will take all steps reasonably necessary to diligently
pursue and seek to preserve, enforce and collect any rights,
claims, causes of action and accounts receivable in respect of the
Collateral.
(p)
The Company shall promptly notify the Secured Party in sufficient
detail upon becoming aware of any attachment, garnishment,
execution or other legal process levied against any Collateral and
of any other information received by the Company that may
materially affect the value of the Collateral, the Security
Interest or the rights and remedies of the Secured Party
hereunder.
(q)
All information heretofore, herein or hereafter supplied to the
Secured Party by or on behalf of the Company with respect to the
Collateral is accurate and complete in all material respects as of
the date furnished.
4.
Defaults . The following events shall be “
Events of Default ”:
(a)
The occurrence of an event of default under the Note;
(b)
Any representation or warranty of the Company in this Agreement
shall prove to have been incorrect in any material respect when
made; and
(c)
The failure by the Company to observe or perform any of its
obligations hereunder for ten (10) days after receipt by the
Company of notice of such failure from the Secured Party.
5.
Duty To Hold In Trust . Upon the occurrence of any Event of
Default and at any time thereafter, the Company shall, upon receipt
by it of any sums subject to the Security Interest, whether payable
pursuant to the Note or otherwise, or of any check, draft, note or
other instrument evidencing an obligation to pay any such sum, hold
the same in trust for the Secured Party and shall forthwith endorse
and transfer any such sums or instruments, or both, to the Secured
Party for application to the satisfaction of the Indebtedness.
6.
Rights and Remedies Upon Default . Upon occurrence of any
Event of Default and at any time thereafter, the Secured Party
shall have the right to exercise all of the remedies conferred
hereunder and under the Note, and the Secured Party shall have all
the rights and remedies of a secured party under the UCC and/or any
other applicable law (including the Uniform Commercial Code of any
jurisdiction in which any Collateral is then located). Without
limitation, the Secured Party shall have the following rights and
powers:
(a)
The Secured Party shall have the right to take possession of the
Collateral and, for that purpose, enter, with the aid and
assistance of any person, any premises where the Collateral, or any
part thereof, is or may be placed and remove the same, and the
Company shall assemble the Collateral and make it available to the
Secured Party at places which the Secured Party shall reasonably
select, whether at the Company’s premises or elsewhere, and
make available to the Secured Party, without rent, all of the
Company’s respective premises and facilities for the purpose
of the Secured Party taking possession of, removing or putting the
Collateral in saleable or disposable form.
(b)
The Secured Party shall have the right to operate the business of
the Company using the Collateral and shall have the right to
assign, sell, lease or otherwise dispose of and deliver all or any
part of the Collateral, at public or private sale or otherwise,
either with or without special conditions or stipulations, for cash
or on credit or for future d
|
