EXHIBIT 10.2
Security Agreement for the
benefit of Kevin T. Ryan dated December 12, 2006
SECURITY AGREEMENT
THIS SECURITY
AGREEMENT (the “
Agreement ”) is made as of December 12, 2006, by
SEAENA INC., a Nevada corporation (“ Debtor ”)
for the benefit of KEVIN T. RYAN (the “ Secured Party
”).
Factual Background
A. This
Agreement is executed by Debtor for the purpose of inducing Secured
Party to advance One Million Ninety-Six Thousand Nine Hundred
Forty-Three and 13/100 Dollars ($1,096,943.13) to Debtor (the
“ Advance ”). The Advance is a portion of the
indebtedness evidenced by a certain Amended and Restated Promissory
Note executed by Debtor in favor of Secured Party dated December
12, 2006 (the “ Note ”), in the stated principal
amount of One Million Nine Hundred Seventy-Eight Thousand Nine
Hundred Forty-Three and 13/100 Dollars ($1,978,943.13) (“
Loan ”).
B. Debtor
has agreed to use a portion of the proceeds of the Advance to pay
off a certain Loan made by North Fork Bank, as Lender, to Debtor,
as borrower (the “ NFB Loan ”). The NFB Loan was
guaranteed by Secured Party.
C. Debtor
has agreed to grant to Secured Party a first priority perfected
security interest in all the property of Debtor, whether presently
owned by Debtor or hereafter acquired, as described in Exhibit
A attached hereto (collectively, the “ Collateral
”). The NFB Loan was secured (prior to repayment in full
thereof) by a first priority perfected security interest in the
Collateral, constituting substantially all of the property and
assets of Debtor. In this Agreement, Debtor grants to Secured Party
a first priority perfected security interest in the Collateral in
lieu of the position previously held by North Fork Bank as the
holder of such first priority perfected security
interest.
|
|
D.
|
The
parties desire to agree as set forth below.
|
NOW, THEREFORE,
with reference to the above
recitals, and in reliance thereon, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1.
Creation of Security Interest . Debtor hereby grants
to Secured Party a security interest in, and does hereby
collaterally assign, pledge, mortgage, convey and set over unto the
Secured Party, all of Debtor’s present and hereafter acquired
right, title and interest in and to the Collateral, for the purpose
of securing payment of all indebtedness, obligations and
liabilities of Debtor to Secured Party evidenced by or arising
under or in connection with the Note, including but not limited to
the Advance, and all other agreements entered into concurrently
therewith (collectively the “ Loan Documents ”)
and performance of all agreements, covenants, terms and conditions
contained in the foregoing documents and instruments (all
obligations of Debtor as described in this Section 1 shall be
collectively referred to herein as the “ Obligations
”).
2.
Warranties, Representations and Covenants of Debtor .
Debtor hereby warrants, represents and covenants as
follows:
46411.0002\YOKENS\LAS\128173. 4 1
(a) Debtor
is and will be the sole owner of the Collateral, free from any
lien, security interest, encumbrance or adverse claim of any kind.
Debtor will not permit any financing statement to be filed with
respect to the Collateral or any portion thereof, except in favor
of Secured Party. Debtor will notify Secured Party of, and will
defend the Collateral against, all claims and demands of all
persons at any time claiming the same or any interest
therein.
(b) The
Collateral will not be used and was not purchased for personal,
family or household purposes.
(c) Subject
to the terms of Subparagraph 2(e) hereof, the Collateral will be
kept on the business premises of Debtor, and Debtor will not remove
the Collateral from the Premises without the prior written consent
of Secured Party.
(d) Debtor
authorizes Secured Party to file one or more financing statements
identifying the Collateral and evidencing the security interest of
Secured Party in the Collateral pursuant to the requirements of the
Uniform Commercial Code and in form satisfactory to Secured Party.
Debtor will pay cost of filing the same in all public offices
wherever filing is deemed by Secured Party to be necessary or
desirable.
(e) Without
the prior written consent of Secured Party, Debtor will not sell,
exchange, dispose of, lease, offer to sell or otherwise transfer or
otherwise deal with the Collateral or any portion or interest
therein, unless simultaneously therewith new items of Collateral,
which items may be similar to those proposed to be disposed of and
which shall be of equal or greater value, are substituted therefor.
Debtor shall file with the Secured Party a certificate signed by
Debtor describing such portion of the Collateral as is being so
disposed of and stating that the same has become obsolete, worn
out, damaged, destroyed, sold, transferred, or exchanged, and that
such portion of the Collateral will be replaced immediately upon
the removal thereof. Such certificate likewise shall certify as to
the reasonable and equivalent value of the property as acquired or
to be acquired in replacement or substitution. All after-acquired
property of the Debtor located on the Premises and all additions or
replacements acquired pursuant to the provisions of this paragraph
shall immediately be and become, without any other act on the part
of the Debtor, subject to the security interest and lien of this
Security Agreement, which security interest shall be prior to any
other security interest or lien on such property. Unless expressly
recited or provided to the contrary in this Security Agreement or
in the other Loan Documents, Debtor may not hereafter acquire any
property to be located on the Premises subject to prior security
interests. If the Collateral or any part thereof is sold,
transferred, exchanged, or otherwise disposed of, the security
interest of Secured Party shall extend to the proceeds of such
sale, transfer, exchange or other disposition.
(f) Debtor
shall cause the Collateral at all times to be kept insured at its
own expense under one or more policies with such companies, for
such periods and amounts, against such risks and liabilities, and
in such form as are reasonably satisfactory to the Secured Party,
with Secured Party as a named insured and with loss payable to the
Secured Party and mortgagee clauses attached to all policies in
favor of and in form satisfactory to Secured Party. Such insurance
policies shall provide for at least thirty (30) days prior written
notice to Secured Party of cancellation, termination, lapse,
reduction in amount or material change in coverage of
such
46411.0002\YOKENS\LAS\128173. 4 2
policies, and shall be delivered to
and held by Secured Party, together with evidence of payment of
premiums thereon. Debtor will promptly notify Secured Party of any
loss or damage to the Collateral and will not adjust or settle such
or any loss without the written consent of the Secured Party. In
the event of foreclosure or sale under this Agreement, all right,
title and interest of the Debtor in and to any insurance policies
then in force shall pass to the purchaser at any sale, and Secured
Party is hereby appointed attorney-in-fact for Debtor to assign and
transfer said policies. In the event of damage or casualty
resulting in a loss payable under any of the aforementioned
insurance policies, Secured Party is authorized (i) to adjust and
settle any claim under the appropriate policy pursuant to which
right Secured Party is hereby appointed attorney-in-fact for Debtor
to make proof of loss, or (ii) to allow Secured Party on behalf of
and in the name and stead of Debtor to adjust and settle any such
claim. In either case, Secured Party is authorized to collect and
receipt for any such insurance proceeds paid pursuant to the
settlement and such authorization is hereby deemed an assignment to
Secured Party by Debtor of its rights to any such
proceeds.
(g) Debtor
will keep the Collateral in good condition and repair. From time to
time and at the request of Secured Party, Debtor will make
necessary or desirable repairs, replacements, renewals and
additions to the Collateral which may be required by reason of use,
wear, obsolescence, damage or destruction, however caused, to the
end that the efficiency of the business conducted on the Premises
shall not be impaired. Debtor will not misuse, abuse, allow to
deteriorate, waste or destroy the Collateral or any part thereof,
except for ordinary wear and tear in the course of its normal and
expected use. Debtor will not use the Collateral in violation of
any statute or governmental rule, regulation or
ordinance.
(h) Debtor
will pay prior to delinquency all taxes and assessments assessed
against the Collateral, imposed on account of its use or operation
or imposed upon the Secured Party’s Note (“
Impositions ”) and shall deliver to Secured Party,
within ten (10) days after the due date of each Imposition, a
receipt or other evidence satisfactory to Secured Party of the
payment thereof.
(i) At
the Secured Party’s request, Debtor will execute any
document, will procure any document and will do all other acts
which from the character or use of the Collateral may be reasonably
necessary to protect the Collateral against the rights, claims or
interests of third persons, and will otherwise preserve the
Collateral as security hereunder.
(j) Debtor
shall furnish promptly to Secured Party such information concerning
the Collateral as Secured Party may from time to time request.
Debtor shall permit and hereby authorizes Secured Party to examine
and inspect the Collateral and any portion thereof wherever the
same may be located. Following an Event of Default (as hereinafter
defined), Debtor shall, at the request of Secured Party, assemble
the Collateral or such portion thereof as may be designated by
Secured Party, together with all documents and records pertaining
thereto, at such place as Secured Party may designate.
(k) The
Debtor shall mark its books and records as may be necessary or
appropriate to evidence, protect and perfect the Secured
Party’s security interest in the Collateral. Such security
interest constitutes a valid, first priority security interest in
the presently existing Collateral, and will constitute a valid,
first priority security interest in Collateral acquired
after
46411.0002\YOKENS\LAS\128173. 4 3
the date hereof, in each case, to
the extent that a security interest in such Collateral can be
perfected by the filing of a financing statement or, in the case of
Collateral consisting of instruments, documents, chattel paper or
certificated securities, to the extent that Secured Party takes
possession of such Collateral.
(l) The
Debtor shall take all action that may be necessary or desirable, or
that the Secured Party may request, so as at all times to maintain
the validity, perfection, enforceability and priority of the
Secured Party’s security interest in the Collateral or to
enable the Secured Party to protect, exercise or enforce its rights
hereunder and in the Collateral, including, but not limited to,
(i) delivering to the Secured Party, endorsed or accompanied
by such instruments of assignment as the Secured Party may specify,
and stamping or marking, in such manner as the Secured Party may
specify, any and all chattel paper, instruments, letters of credits
and advices thereof and documents evidencing or forming a part of
the Collateral, (ii) entering into warehousing, lockbox and
other custodial arrangements satisfactory to the Secured Party, and
(iii) executing and delivering financing statements,
instruments of pledge, mortgages, hypothecs notices and
assignments, in each case in form and substance satisfactory to the
Secured Party, relating to the creation, validity, perfection,
maintenance or continuation of the Secured Party’s security
interest under the Nevada Uniform Commercial Code or other
applicable law. All charges, expenses and fees the Secured Party
may incur in doing any of the foregoing, and any taxes relating
thereto, shall, at Secured Party’s request, be charged to
Debtor and added to the Obligations and bear interest at the
Default Interest Rate as specified in the Note, or, at the Secured
Party’s option, shall be paid to the Secured Party
immediately upon demand.
(m) With
respect to the Collateral, at the time the Collateral becomes
subject to the Secured Party’s security interest:
(a) the Debtor shall be the sole owner of and fully authorized
and able to sell, transfer, pledge and/or grant a security interest
with the agreed priority in each and every item of the Collateral
to the Secured Party; (b) each document and agreement executed
by the Debtor or delivered to the Secured Party in connection with
this Agreement shall be true and correct in all respects; and
(c) all signatures and endorsements of the Debtor that appear
on such documents and agreements shall be genuine and the Debtor
shall have full capacity to execute same.
(n) At
any time during the continuance of an Event of Default, the Debtor
shall, and the Secured Party may, at its option, instruct all
builders, customers, suppliers, carriers, forwarders, warehousers
or others receiving or holding cash, checks, documents or
instruments in which the Secured Party holds a security interest to
deliver same to the Secured Party and/or subject to the Secured
Party’s order and if they shall come into any Debtor
Party’s possession, they, and each of them, shall be held by
such Debtor Party in trust as the Secured Party’s trustee,
and such Debtor Party will immediately deliver them to the Secured
Party in their original form together with any necessary
endorsement.
(o) At
all reasonable times the Secured Party shall have full access to
and the right to audit, check, inspect and make abstracts and
copies from the Debtor’s books, records, audits,
correspondence and all other papers relating to the Collateral and
the operation of the Debtor’s business. The Secured Party and
its agents may enter upon any of the Debtor Parties’ premises
at any time during business hours and at any other reasonable time,
and from time to
46411.0002\YOKENS\LAS\128173. 4 4
time, for the purpose of inspecting
the Collateral and any and all records pertaining thereto and the
operation of such Debtor’s business.
(p) The
Debtor’s chief executive office is located at 1181 Grier
Drive, Suite B, Las Vegas, Nevada 89119 . Until written notice is given to the Secured
Party by the Debtor of any other office at which the Debtor keeps
its records pertaining to the Collateral, all such records shall be
kept at such executive office.
(q) At
any time following the occurrence and continuance of an
Eve