Exhibit 10.29
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made and entered into as
of the 7th day of May, 1997, by SOUTHHAMPTON ENTERPRISES CORP., a British
Columbia (Canada) corporation (hereinafter called "Debtor"), whose chief
executive office is located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, in favor
of IMPERIAL BANK, a California banking corporation, and its successors and
assigns (hereinafter called "Secured Party"), whose address is 9920 South La
Cienega Boulevard, Lending Services, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. SECURITY INTEREST
Debtor hereby grants to Secured Party a security interest (hereinafter
called the "Security Interest") in all of Debtor's right, title and interest in
and to the property (the "Collateral") described on Schedule 1 attached hereto
and by this reference incorporated herein.
2. OBLIGATION SECURED
The Security Interest shall secure, in such order of priority as
Secured Party may elect:
(a) Payment of the sum of $2,500,000.00 with interest thereon,
extension and other fees, late charges, prepayment premiums and
attorneys' fees, according to the terms of that Promissory Note dated
of even date herewith, made by The Antigua Group, Inc., a Nevada
corporation ("Borrower"), payable to the order of Secured Party, and
all extensions, modifications, renewals or replacements thereof
(hereinafter called the "Note");
(b) Payment, performance and observance by Debtor of each
covenant, condition, provision and agreement contained herein and of
all monies expended or advanced by Secured Party pursuant to the terms
hereof, or to preserve any right of Secured Party hereunder, or to
protect or preserve the Collateral or any part thereof;
(c) Payment, performance and observance by Debtor,
Southhampton Enterprises, Inc., a Texas corporation ("SEI") and
Borrower of each covenant, condition, provision and agreement contained
in that Credit Agreement dated of even date herewith, by and between
Debtor, SEI, Borrower and Secured Party (hereinafter called the "Credit
Agreement") and in any other document or instrument related to the
indebtedness described in subparagraph (a) above and of all monies
expended or advanced by Secured Party pursuant to the terms thereof or
to preserve any right of Secured Party
thereunder; and
(d) Payment and performance of any and all other indebtedness,
obligations and liabilities of Debtor, SEI and/or Borrower to Secured
Party of every kind and character, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter incurred,
whether such indebtedness is from time to time reduced and thereafter
increased or entirely extinguished and thereafter reincurred.
All of the indebtedness and obligations secured by this Agreement are
hereinafter collectively called the "Obligation."
3. USE; LOCATION; CONSTRUCTION
3.1 The Collateral is or will be used or produced primarily for
business purposes.
3.2 Except for certain inventory located at the addresses set forth in
Schedule 3.1, the Collateral will be kept at Debtor's address set forth at the
beginning of this Agreement.
3.3 Debtor's records concerning the Collateral will be kept at Debtor's
address set forth at the beginning of this Agreement.
4. REPRESENTATIONS AND WARRANTIES OF DEBTOR
Debtor hereby represents and warrants that:
4.1 Except for the security interests described in Schedule 4.1
attached hereto and Permitted Liens (as defined in the Credit Agreement) and
financing statements described in Schedule 4.1 attached hereto and by this
reference incorporated herein, Debtor is the owner of the Collateral free of all
security interests or other encumbrances except the Security Interest and no
financing statement covering the Collateral is filed or recorded in any public
office.
4.2 The Collateral is, and is intended to be, used, produced or
acquired by Debtor for use primarily for business purposes. The address of
Debtor set forth at the beginning of this Agreement is the chief executive
office of Debtor.
4.3 Each lease, chattel paper or general intangible included in the
Collateral is genuine and enforceable in accordance with its terms against the
party named therein who is obligated to pay the same (hereinafter called
"Obligor"), and the security interests that are part of each item of chattel
paper included in the Collateral are valid, first and prior perfected security
interests. Each document, instrument and chattel paper included in the
Collateral is complete and regular on its face and free from evidence of forgery
or alteration.
4.4 Debtor is fully authorized and permitted to execute and deliver
this Agreement and to enter into any transactions evidenced by any portion of
the Collateral. The execution, delivery and performance by Debtor of this
Agreement and all other documents and instruments relating to the Obligation
will not result in any breach of the terms and conditions or constitute a
default under any agreement or instrument under which Debtor is a party or is
obligated. Debtor is not in default in the performance or observance of any
covenants, conditions or provisions of any such agreement or instrument.
5. COVENANTS OF DEBTOR
5.1 Debtor shall not sell, transfer, assign or otherwise dispose of any
Collateral or any interest therein (except as permitted herein) without
obtaining the prior written consent of Secured Party and shall keep the
Collateral free of all security interests or other encumbrances except the
Security Interest, the security interests described in Schedule 4.1 and the
Permitted Liens. Although proceeds of Collateral are covered by this Agreement,
this shall not be construed to mean that Secured Party consents to any sale of
the Collateral.
5.2 Debtor shall keep and maintain the Collateral in good condition and
repair and shall not use the Collateral in violation of any provision of this
Agreement or any applicable statute, ordinance or regulation or any policy of
insurance insuring the Collateral.
5.3 Debtor shall provide and maintain insurance insuring the Collateral
against risks, with coverage and in form and amount satisfactory to Secured
Party. At Secured Party's request, Debtor shall deliver to Secured Party the
original policies of insurance containing endorsements naming Secured Party as a
loss payee.
5.4 Debtor shall pay when due all taxes, assessments and other charges
which may be levied or assessed against the Collateral.
5.5 Debtor shall prevent any portion of the Collateral from being or
becoming an accession to other goods that are not part of the Collateral.
5.6 Debtor shall keep all titled vehicles properly registered and
licensed, shall provide Secured Party with the license numbers of all titled
vehicles, shall cause the Security Interest to be shown as a valid lien on the
Certificate of Title for all titled vehicles subject only to the LaSalle Lien
(as defined in Schedule 4.1) and shall deliver lien filing receipts to Secured
Party as evidence thereof.
5.7 Debtor, upon demand, shall promptly deliver to Secured Party all
instruments, documents and chattel paper included in the Collateral and all
invoices, shipping or delivery records, purchase
orders, contracts or other items related to the Collateral. Debtor shall notify
Secured Party immediately of any default by any Obligor in the payment or
performance of its obligations with respect to any Collateral. Debtor, without
Secured Party's prior written consent, shall not make or agree to make any
alteration, modification or cancellation of, or substitution for, or credit,
adjustment or allowance on, any Collateral.
5.8 Debtor shall give Secured Party immediate written notice of any
change in the location of: (i) Debtor's chief executive office; (ii) the
Collateral or any part thereof; or (iii) Debtor's records concerning the
Collateral.
5.9 Secured Party or its agents may inspect the Collateral at
reasonable times and may enter into any premises where the Collateral is or may
be located. Debtor shall keep records concerning the Collateral in accordance
with generally accepted accounting principles and, unless waived in writing by
Secured Party, shall ▇▇▇▇ its records and the Collateral to indicate the
Security Interest. Secured Party shall have free and complete access to Debtor's
records and shall have the right to make extracts therefrom or copies thereof.
Upon request of Secured Party from time to time, Debtor shall submit up-to-date
schedules of the items comprising the Collateral in such detail as Secured Party
may require and shall deliver to Secured Party confirming specific assignments
of all accounts, instruments, documents and chattel paper included in the
Collateral.
5.10 Debtor, at its cost and expense, shall protect and defend this
Agreement, all of the rights of Secured Party hereunder, and the Collateral
against all claims and demands of other parties, including without limitation
defenses, setoffs, claims and counterclaims asserted by any Obligor against
Debtor and/or Secured Party. Debtor shall pay all claims and charges that in the
opinion of Secured Party might prejudice, imperil or otherwise affect the
Collateral or the Security Interest. Debtor shall promptly notify Secured Party
of any levy, distraint or other seizure by legal process or otherwise of any
part of the Collateral and of any threatened or filed claims or proceedings that
might in any way affect or impair the terms of this Agreement.
5.11 The Security Interest, at all times, shall be perfected and shall
be prior to any other interests in the Collateral except for the LaSalle Lien.
Debtor shall act and perform as necessary and shall execute and file all
security agreements, financing statements, continuation statements and other
documents requested by Secured Party to establish, maintain and continue the
perfected Security Interest. Debtor, on demand, shall promptly pay all costs and
expenses of filing and recording, including the costs of any searches, deemed
necessary by Secured Party from time to time to establish and determine the
validity and the continuing priority of the Security Interest.
5.12 If Debtor shall fail to pay any taxes, assessments,
expenses or charges, to keep all of the Collateral free from other security
interests, encumbrances or claims excepting the security interests described in
Schedule 4.1, to keep the Collateral in good condition and repair, to procure
and maintain insurance thereon, or to perform otherwise as required herein,
Secured Party may advance the monies necessary to pay the same, to accomplish
such repairs, to procure and maintain such insurance or to so perform; Secured
Party is hereby authorized to enter upon any property in the possession or
control of Debtor for such purposes.
5.13 All rights, powers and remedies granted Secured Party herein, or
otherwise available to Secured Party, are for the sole benefit and protection of
Secured Party, and Secured Party may exercise any such right, power or remedy at
its option and in its sole and absolute discretion without any obligation to do
so. In addition, if under the terms hereof, Secured Party is given two or more
alternative courses of action, Secured Party may elect any alternative or
combination of alternatives at its option and in its sole and absolute
discretion. All monies advanced by Secured Party under the terms hereof and all
amounts paid, suffered or incurred by Secured Party in exercising any authority
granted herein, including reasonable attorneys' fees, shall be added to the
Obligation, shall be secured by the Security Interest, shall bear interest at
the highest rate payable on any of the Obligation until paid, and shall be due
and payable by Debtor to Secured Party immediately without demand.
6. NOTIFICATION AND PAYMENTS; COLLECTION OF COLLATERAL; USE OF COLLATERAL
BY DEBTOR
6.1 Secured Party, before or after the occurrence of any Event of
Default, defined below, and without notice to Debtor, may notify any or all
Obligors of the existence of the Security Interest and may direct the Obligors
to make all payments on the Collateral to Secured Party. Until Secured Party has
notified the Obligors to remit payments directly to it, Debtor, at Debtor's own
cost and expense, shall collect or cause to be collected the accounts and monies
due under the accounts, documents, instruments and general intangibles or
pursuant to the terms of the chattel paper. Secured Party shall not be liable or
responsible for any embezzlement, conversion, negligence or default by Debtor or
Debtor's agents with respect to such collections; all agents used in such
collections shall be agents of Debtor and not agents of Secured Party. Unless
Secured Party notifies Debtor in writing that it waives one or more of the
requirements set forth in this sentence, any payments or other proceeds of
Collateral received by Debtor, before or after notification to Obligors, shall
be held by Debtor in trust for Secured Party in the same form in which received,
shall not be commingled with any assets of Debtor and shall be turned over to
Secured Party not later than the next business day following the day of receipt.
All payments and other proceeds of Collateral received by Secured Party directly
or from Debtor may be applied to the Obligation in such order and manner and at
such time as Secured Party, in its sole discretion, shall
determine. In addition, Debtor shall promptly notify Secured Party of the return
to or possession by Debtor of goods underlying any Collateral; Debtor shall hold
the same in trust for Secured Party and shall dispose of the same as Secured
Party directs.
6.2 Before or after the occurrence of an Event of Default and without
notice to Debtor, Secured Party may, either in Debtor's name or in Secured
Party's name, endorse Debtor's name on any instruments, documents, or chattel
paper included in or pertaining to the Collateral. When an Event of Default
exists and without notice to Debtor, Secured Party may, either in Debtor's name
or in Secured Party's name, demand and ▇▇▇ on the Collateral and enforce,
compromise, settle or discharge the Collateral. Any Receiver (as that term is
defined in the Credit Agreement) shall also have following an Event of Default
the powers given to Secured Party in this Section 6.2. Debtor hereby irrevocably
appoints Secured Party and/or any Receiver its attorney in fact, with full power
of substitution, for all such purposes.
6.3 Until the occurrence of an Event of Default, Debtor may: (i) use,
consume and sell any inventory included in the Collateral in any lawful manner
in the ordinary course of Debtor's business provided that all sales shall be at
commercially reasonable prices; and (ii) subject to Paragraphs 6.1 and 6.2
above, retain possession of any other Collateral and use it in any lawful manner
consistent with this Agreement.
7. COLLATERAL IN THE POSSESSION OF SECURED PARTY
7.1 Secured Party shall use such reasonable care in handling,
preserving and protecting the Collateral in its possession as it uses in
handling similar property for its own account. Secured Party, however, shall
have no liability for the loss, destruction or disappearance of any Collateral
unless there is affirmative proof of a lack of due care; and lack of due care
shall not be implied solely by virtue of any loss, destruction or disappearance.
7.2 Debtor shall be solely responsible for taking any and all actions
to preserve rights against all Obligors; Secured Party shall not be obligated to
take any such actions whether or not the Collateral is in Secured Party's
possession. Debtor waives presentment and protest with respect to any instrument
included in the Collateral on which Debtor is in any way liable and waives
notice of any action taken by Secured Party with respect to any instrument,
document or chattel paper included in any Collateral that is in the possession
of Secured Party.
8. EVENTS OF DEFAULT; REMEDIES
8.1 As used herein the term "Event of Default" shall have the meaning
given to it in the Credit Agreement.
8.2 Upon the occurrence of any Event of Default and at any time while
such Event of Default is continuing, Secured Party shall
have the following rights and remedies and may do one or more of the following:
(a) Declare all or any part of the Obligation to be
immediately due and payable, and the same, with all costs and charges,
shall be collectible thereupon by action at law.
(b) Without further notice or demand and without legal
process, take possession of the Collateral wherever found and, for this
purpose, enter upon any property occupied by or in the control of
Debtor. Debtor, upon demand by Secured Party, shall assemble the
Collateral and deliver it to Secured Party or to a place designated by
Secured Party that is reasonably convenient to both parties.
(c) Operate the business of Debtor as a going concern,
including, without limitation, extend sales or services to new
customers and advance funds for such operation. Secured Party shall not
be liable for any depreciation, loss, damage or injury to the
Collateral or other property of Debtor as a result of such action.
Debtor hereby waives any claim of trespass or replevin arising as a
result of such action.
(d) Exercise any or all of its rights, powers and privileges
hereunder.
(e) Pursue any legal or equitable remedy available to collect
the Obligation, to enforce its title in and right to possession of the
Collateral and to enforce any and all other rights or remedies
available to it.
(f) Upon obtaining possession of the Collateral or any part
thereof, after notice to Debtor as provided in Paragraph 8.4 herein,
sell such Collateral at public or private sale either with or without
having such Collateral at the place of sale. The proceeds of such sale,
after deducting therefrom all expenses of Secured Party in taking,
storing, repairing and selling the Collateral (including reasonable
attorneys' fees) shall be applied to the payment of the Obligation, and
any surplus thereafter remaining shall be paid to Debtor or any other
person that may be legally entitled thereto. In the event of a
deficiency between such net proceeds from the sale of the Collateral
and the total amount of the Obligation, Debtor, upon demand, shall
promptly pay the amount of such deficiency to Secured Party.
8.3 Secured Party, so far as may be lawful, may purchase all or any
part of the Collateral offered at any public or private sale made in the
enforcement of Secured Party's rights and remedies hereunder.
8.4 Any demand or notice of sale, disposition or other intended action
hereunder or in connection herewith, whether required by the Uniform Commercial
Code or otherwise, shall be deemed to be commercially reasonable and effective
if such demand or notice is given to Debtor at least five (5) days prior to such
sale, disposition or other intended action, in the manner provided herein for
the giving of notices.
8.5 Debtor shall pay all costs and expenses, including without
limitation costs of Uniform Commercial Code searches, court costs and reasonable
attorneys' fees, incurred by Secured Party in enforcing payment and performance
of the Obligation or in exercising the rights and remedies of Secured Party
hereunder. All such costs and expenses shall be secured by this Agreement and by
all deeds of trust and other lien and security documents securing the
Obligation. In the event of any court proceedings, court costs and attorneys'
fees shall be set by the court and not by jury and shall be included in any
judgment obtained by Secured Party.
8.6 In addition to any remedies provided herein for an Event of
Default, Secured Party shall have all the rights and remedies afforded a secured
party under the Uniform Commercial Code and all other legal and equitable
remedies allowed under applicable law. No failure on the part of Secured Party
to exercise any of its rights hereunder arising upon any Event of Default shall
be construed to prejudice its rights upon the occurrence of any other or
subsequent Event of Default. No delay on the part of Secured Party in exercising
any such rights shall be construed to preclude it from the exercise thereof at
any time while that Event of Default is continuing. Secured Party may enforce
any one or more rights or remedies hereunder successively or concurrently. By
accepting payment or performance of any of the Obligation after its due date,
Secured Party shall not thereby waive the agreement contained herein that time
is of the essence, nor shall Secured Party waive either its right to require
prompt payment or performance when due of the remainder of the Obligation or its
right to consider the failure to so pay or perform an Event of Default.
9. MISCELLANEOUS PROVISIONS
9.1 The acceptance of this Agreement by Secured Party shall not be
considered a waiver of or in any way to affect or impair any other security that
Secured Party may have, acquire simultaneously herewith, or hereafter acquire
for the payment or performance of the Obligation, nor shall the taking by
Secured Party at any time of any such additional security be construed as a
waiver of or in any way to affect or impair the Security Interest; Secured Party
may resort, for the payment or performance of the Obligation, to its several
securities therefor in such order and manner as it may determine.
9.2 Without notice or demand, without affecting the obligations of
Debtor hereunder or the personal liability of any
person for payment or performance of the Obligation, and without affecting the
Security Interest or the priority thereof, Secured Party, from time to time,
may: (i) extend the time for payment of all or any part of the Obligation,
accept a renewal note therefor, reduce the payments thereon, release any person
liable for all or any part thereof, or otherwise change the terms of all or any
part of the Obligation; (ii) take and hold other security for the payment or
performance of the Obligation and enforce, exchange, substitute, subordinate,
waive or release any such security; (iii) join in any extension or subordination
agreement; or (iv) release any part of the Collateral from the Security
Interest.
9.3 Debtor waives and agrees not to assert: (i) any right to require
Secured Party to proceed against any guarantor, to proceed against or exhaust
any other security for the Obligation, to pursue any other remedy available to
Secured Party, or to pursue any remedy in any particular order or manner; (ii)
the benefits of any legal or equitable doctrine or principle of marshalling;
(iii) the benefits of any statute of limitations affecting the enforcement
hereof; (iv) demand, diligence, presentment for payment, protest and demand, and
notice of extension, dishonor, protest, demand and nonpayment, relating to the
Obligation; and (v) any benefit of, and any right to participate in, any other
security now or hereafter held by Secured Party.
9.4 The terms herein shall have the meanings in and be construed under
the Uniform Commercial Code. This Agreement shall be governed by and construed
according to the laws of the State of California, except to the extent Secured
Party has greater rights or remedies under Federal law, whether as a national
bank or otherwise, in which case such choice of California law shall not be
deemed to deprive Lender of any such rights and remedies as may be available
under Federal law. Each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be void or invalid, the same shall not affect the
remainder hereof which shall be effective as though the void or invalid
provision had not been contained herein.
9.5 No modification, rescission, waiver, release or amendment of any
provision of this Agreement shall be made except by a written agreement executed
by Debtor and a duly authorized officer of Secured Party.
9.6 This is a continuing agreement which shall remain in full force and
effect until actual receipt by Secured Party of written notice of its revocation
as to future transactions and shall remain in full force and effect thereafter
until all of the Obligation incurred before the receipt of such notice, and all
of the Obligation incurred thereafter under commitments extended by Secured
Party before the receipt of such notice, shall have been paid and performed in
full.
9.7 No setoff or claim that Debtor now has or may in the
future have against Secured Party shall relieve Debtor from paying or performing
the Obligation.
9.8 Time is of the essence hereof. If more than one Debtor is named
herein, the word "Debtor" shall mean all and any one or more of them, severally
and collectively. All liability hereunder shall be joint and several. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their heirs, personal representatives, successors and assigns. The
term "Secured Party" shall include not only the original Secured Party hereunder
but also any future owner and holder, including pledgees, of note or notes
evidencing the Obligation. The provisions hereof shall apply to the parties
according to the context thereof and without regard to the number or gender of
words or expressions used.
9.9 Except for telephonic notices (if any) permitted herein, any
notices or other communications required or permitted to be given by this
Agreement to Debtor or Secured Party must be (i) given in writing and personally
delivered or mailed by prepaid certified or registered mail, or (ii) made by
telefacsimile delivered or transmitted (but confirmed on the date the
telefacsimile is transmitted by one of the other methods of giving of notice
provided in this Section), to the person to whom such notice or communication is
directed, to the address of such person as follows:
Debtor: Southhampton Enterprises Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Secured Party: Imperial Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy (which shall not constitute notice) to:
Imperial Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice to be personally delivered may be delivered to the principal offices
(determined as of the date of such delivery) of the person to whom such notice
is directed. Any such notice or other communication shall be deemed to have been
given (whether actually received or not) on the day it is personally delivered
as
aforesaid; or, if mailed, on the third day after it is mailed as aforesaid; or,
if transmitted by telefacsimile, on the day that such notice is transmitted and
confirmed as aforesaid; provided that notice to Secured Party shall be deemed
given only if given to Secured Party at both notice addresses. Debtor or Secured
Party may change its address for purposes of this Credit Agreement by giving
notice of such change to the other parties pursuant to this Section.
9.10 A carbon, photographic or other reproduced copy of this Agreement
and/or any financing statement relating hereto shall be sufficient for filing
and/or recording as a financing statement.
10. NON-DEBTOR BORROWER PROVISIONS
10.1 All advances of principal under the Note shall be made to Borrower
subject to and in accordance with the terms thereof. It is not necessary for
Secured Party to inquire into the powers of Borrower or SE Corp or the officers,
directors, partners or agents acting or purporting to act on its behalf. Debtor
is and shall continue to be fully informed as to all aspects of the business
affairs of Borrower that it deems relevant to the risks it is assuming and
hereby waives and fully discharges Secured Party from any and all obligations to
communicate to Debtor any facts of any nature whatsoever regarding Borrower, SE
Corp and the business affairs of Borrower and SE Corp.
10.2 Debtor authorizes Secured Party, without notice or demand, without
affecting the obligations of Debtor hereunder or the personal liability of any
person for payment or performance of the Obligation and without affecting the
lien or the priority of the lien created hereby, from time to time, at the
request of any person primarily obligated therefor, to renew, compromise,
extend, accelerate or otherwise change the time for payment or performance of,
or otherwise change the terms of, all or any part of the Obligation, including
increase or decrease any rate of interest thereon. Debtor waives and agrees not
to assert: (i) any right to require Debtor to proceed against Borrower or SE
Corp; (ii) the benefits of any statutory provision limiting the liability of a
surety; and (iii) any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation from any cause whatsoever of
the liability of Borrower or SE Corp. Debtor shall have no right of subrogation
and hereby waives any right to enforce any remedy which Secured Party now has,
or may hereafter have, against Borrower and/or SE Corp.
10.3 Nothing contained herein shall affect or limit the right of
Secured Party to proceed against any person or entity, including Debtor or any
partner in Debtor, with respect to the enforcement of any guarantee or other
similar rights.
10.4 Debtor waives all right and defenses that Debtor may have because
a principal's liability for the Obligation may be secured by real property. This
means, among other things: (1) Secured
Party may pursue its remedies against Debtor without first foreclosing on any
real or personal property collateral pledged by Borrower; and (2) if Secured
Party forecloses on any real property collateral pledged by Borrower: (A) the
amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price; and (B) Secured Party may pursue its remedies against Debtor even if
Secured Party, by foreclosing on the real property collateral, has destroyed any
right Debtor may have to collect from Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses Debtor may have because a
principal's liability for the Obligation is secured by real property. These
rights and defenses include, but are not limited to, any rights or defenses
based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil
Procedure. Furthermore, Debtor waives all rights and defenses arising out of an
election of remedies by Secured Party, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a secured
obligation, has destroyed Debtor's rights of subrogation and reimbursement
against the principal by the operation of Section 580d of the California Code of
Civil Procedure or otherwise.
IN WITNESS WHEREOF, these presents are executed as of the date
indicated above.
SOUTHHAMPTON ENTERPRISES CORP., a
British Columbia (Canada) corporation
Witness (Other Than Notary):
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Type/Print Name:▇▇▇▇▇ ▇. ▇▇▇▇▇ Type/Print Name: L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
DEBTOR
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 7th day of
May, 1997, by L. ▇▇▇▇▇▇ ▇▇▇▇▇▇, the President of SOUTHHAMPTON ENTERPRISES CORP.,
a British Columbia (Canada) corporation, on behalf of that corporation.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
My commission expires:
My Commission Expires July 31, 1997
SCHEDULE 1
COLLATERAL
All of Debtor's right, title or interest, whether present, future, or
contingent, in and to property of any kind, whether now or hereafter existing
and wherever located (the "Collateral"), including, without limitation:
(a) All bank accounts, certificates of deposit,
accounts, general intangibles, instruments, documents and
chattel paper (including all accounts receivable, notes,
drafts, franchise fees, royalties receivable, lease agreements
and security agreements), patents, patent applications,
trademarks, service members, trademark and service ▇▇▇▇
applications, tradenames, trade secrets, goodwill, copyrights,
registrations, licenses, franchises, customer books, tax refund
claims, claims against third parties, and increase to and
profits from all such property;
(b) All inventory, including all goods held for sale
or lease in Debtor's business, as now or hereafter conducted,
and all materials, work in process and finished goods used or
to be consumed in Debtor's business (whether or not the
inventory is represented by warehouse receipts or bills of
lading or has been or may be placed in transit or delivered to
a public warehouse);
(c) All fixtures, equipment and other goods which are
not inventory, including all furniture, fixtures, furnishings,
vehicles (whether titled or non-titled), machinery, materials
and supplies, wherever located, including but not limited to
such items described on the collateral schedule (if any)
attached hereto and by this reference made a part hereof,
together with all parts, accessories, attachments, additions
thereto or replacements therefor;
(d) All investment property not referred to above,
including, without limitation, all issued and outstanding stock
in The Antigua Group, Inc., a Nevada corporation ("Antigua"),
now owned or hereafter acquired by Debtor, including, without
limitation 2,074,600 shares of common stock evidenced by
Certificate No. _________, together with all earnings thereon,
all additions thereto, all proceeds thereof from sale or
otherwise, all substitutions therefor, and all securities
issued with respect thereto as a result of any stock dividend,
stock split, warrants or other rights, reclassification,
readjustment or other change in the capital structure of
Antigua, and the securities of any corporation or other
properties received upon the conversion or exchange thereof
pursuant to any merger, consolidation, reorganization, sale of
assets or other agreement or received upon any liquidation of
Antigua or such other corporation.
together with (i) all policies or certificates of insurance covering any of the
foregoing property, and all awards, loss payments, proceeds and premium refunds
that may become payable with respect to such policies; (ii) all property of
Debtor that is now or may hereafter be in the possession or control of Secured
Party in any capacity, including without limitation all monies owed or that
become owed by Secured Party to Debtor; and (iii) all proceeds of any of the
foregoing property, whether due or to become due from any sale, exchange or
other disposition thereof, whether cash or non-cash in nature, and whether
represented by checks, drafts, notes or other instruments for the payment of
money, including, without limitation, all property, whether cash or non-cash in
nature, derived from tort, contractual or other claims arising in connection
with any of the foregoing property.
SCHEDULE 3.1
OTHER COLLATERAL LOCATIONS
1. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
SCHEDULE 4.1
PERMITTED SECURITY INTERESTS AND FINANCIAL STATEMENTS
A. SECURITY INTERESTS
1. A senior security interest ("LaSalle Lien") in favor of LaSalle
Business Credit, Inc., and securing: (a) repayment of (i) revolving line of
credit to Borrower in the maximum principal amount of $12,000,000, (ii) a term
loan to Borrower in the principal amount of $775,000, and (iii) a term loan to
Borrower in the principal amount of $3,500,000; and (b) payment and performance
of obligations incidental to such loans.
2. A junior security interest in favor of the Cruttenden ▇▇▇▇ Bridge
Fund, LLC, and securing (a) repayment of a note made by Borrower in the
principal amount of $1,020,000 and (b) payment and performance of obligations
incidental to the indebtedness evidenced by such note.
3. A junior security interest in favor of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as agent
for the entities described in Schedule 4.1A, and securing (a) repayment of
indebtedness owed by Debtor in the aggregate principal amount of approximately
$6,378,000 and (b) payment and performance of obligations incidental to such
indebtedness.
4. A security interest granted in connection with a refinancing of the
indebtedness described in items A.1-A.3 above, but only if such Security
Interest is a Permitted Lien (as defined in the Credit Agreement).
B. FINANCING STATEMENTS
1. Financing statements filed to perfect the security interests
described in items A.1- A.3 above.
2. A financing statement filed in favor of St. Claire Group covering
inventory and pertaining to indebtedness in the approximate amount of $189,000
CDN.
3. A financing statement in favor of Guiness Import Company (Canada)
Limited covering certain Collateral and filed only as a protective filing with
respect to inventory of such entity held by Debtor.
SCHEDULE 4.1A
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustees under the ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust of 1988, dated 10/4/88.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian Under the Uniform Gifts to Minors Act fbo
▇▇▇ ▇. ▇▇▇▇▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Custodian Under the Uniform Gifts to Minors Act fbo
▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
E. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Trustee, E. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., Revocable
Intervivos Trust dated December 31, 1982.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee under the 1989 Trust Agreement established
separate irrevocable Gift Trusts f/b/o the children of ▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇ dated March 7, 1989.