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SECURITY AGREEMENT

Security Agreement

SECURITY AGREEMENT | Document Parties: SEAENA INC. | KEVIN T. RYAN You are currently viewing:
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SEAENA INC. | KEVIN T. RYAN

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Title: SECURITY AGREEMENT
Governing Law: Nevada     Date: 12/27/2006
Industry: Retail (Catalog and Mail Order)     Law Firm: Snell & Wilmer L.L.P.     Sector: Services

SECURITY AGREEMENT, Parties: seaena inc. , kevin t. ryan
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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:

 

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(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

 

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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

 

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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

 

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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


 
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