SECURITY AGREEMENT
Exhibit 10.3
THIS
SECURITY AGREEMENT (this
“Agreement”) is
made as of December 13, 2018 (the “Funding Date”) by and between
CLR ROASTERS, LLC, a Florida
limited liability company (“CLR Roasters” or “Pledgor”) and Xxxx Xxxxxx (the “Secured Party”) TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF
DECEMBER 13, 2018 BETWEEN THE PLEDGOR, XXXXX FAMILY PLANTATION
GROUP S.A. AND THE SECURED
PARTIES (the “Credit
Agreement”).
RECITALS
A. The
Secured Party and Pledgor entered into the Credit
Agreement.
B. On the Funding
Date, the Secured Party have purchased a Credit Note (as defined in
the Credit Agreement) and may purchase additional Credit Notes (the
“Credit Notes”)
in an amount of up to $5,000,000 from the Company (the
“Loan”).
C. As
collateral to secure payment and performance of the Obligations set
forth in the Credit Agreement, and the Credit Note, the Pledgor has
entered into this Agreement and Pledgor has granted to the Secured
Party a Lien and security interest in and to all of the Collateral
(as defined below).
D. Unless
otherwise expressly defined in this Agreement, all capitalized
terms when used herein, shall have the same meanings defined in the
Credit Agreement.
E. The
Recitals shall be deemed to be an integral part of this Agreement
as though more fully set forth at length in the body of this
Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto agree as
follows:
1. Grant of Security Interest. To
secure the full and timely performance of all of Pledgor’s
Obligations and liabilities to the Secured Party pursuant to Credit
Agreement and Credit Note, and the Loan Documents, Pledgor hereby
unconditionally and irrevocably pledges, grants and hypothecates to
the Secured Party a continuing Lien and security interest (the
“Security
Interest”) in and to its green coffee inventory and
the proceeds thereof (the “Collateral”).
2. Priority of Security Interest.
The Secured Party and Pledgor each acknowledge and agree
that:
(a) the Security
Interest granted by Pledgor in the Collateral owned by Pledgor
pursuant to this Agreement is subject and subordinated to the
rights in the Collateral held by Crestmark Bank under its Amended
and Restated Loan and Security Agreement, dated November 16, 2017,
as amended on December 29, 2017 (the “First Lien”) and is pari passu to the rights in the
Collateral held by the holders of the 2014 Secured Notes issued by
Youngevity International, Inc.; and
(b) upon the occurrence
and continuation of either (i) an Event of Default under the Credit
Agreement, the Credit Notes or any of the Loan Documents or
hereunder, or (ii) an event of
default in respect of the First Lien or the 2014 Secured Notes, the
Secured Party may exercise any of its rights and remedies with
respect to the Collateral owned by Pledgor or the Security Interest
granted by Pledgor hereunder, all as provided in this
Agreement.
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3. Representations and
Covenants.
(a) Other Liens. Pledgor owns all
rights, title and interest in the respective Collateral (or has
appropriate rights to use in the case of property subject to
leases, licenses or similar arrangements in which Pledgor is the
licensee or lessee) and, except for the First Lien other Permitted
Liens as defined below, Pledgor will not permit its Collateral to
be subject to any adverse lien, security interest or encumbrance
(other than Permitted Liens), and Pledgor will defend its
Collateral against the claims and demands of all persons at any
time claiming the same or any interest therein. Except as disclosed
to the Secured Party, no financing statements covering any
Collateral or any proceeds thereof are on file in any public
office. Permitted Liens shall include (i) purchase money liens, and
liens incurred in the ordinary course of business, (ii) liens for
taxes not yet delinquent or which are being contested in good
faith, (iii) any lien on any real or personal property at the time
it is acquired and any lien renewing any of the foregoing, (iv)
Liens as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made
of such property by the Pledgor.
(b) This Agreement
creates in favor of the Secured Party a valid security interest in
the Collateral, subject only to the First Lien and Permitted Liens
(as defined) securing the payment and performance of the
Obligations. Upon making the filings described in the immediately
following paragraph, all security interests created hereunder in
any Collateral, which may be perfected by filing Uniform Commercial
Code (“UCC”)
financing statements and other filings, if any, as may be required
under the laws of the United States (together with the UCC, the
“Required
Filings”) in order to perfect a Security Interest,
shall have been duly perfected. Without limiting the generality of
the foregoing, except for the Required Filings and subject to the
requirements of the laws of Nicaragua, no consent of any third
parties and no authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body is required for: (i) the execution, delivery and performance
of this Agreement; (ii) the creation or perfection of the Security
Interests in the United States created hereunder in the Collateral;
or (iii) the enforcement of the rights of the Secured Party
hereunder.
(c) Filing Authorization. Pledgor
hereby authorizes the Secured Party, as the agent and
attorney-in-fact for Pledgor to file one or more financing
statements under the UCC and all other Required Filings, with
respect to the Security Interests, with the proper filing and
recording agencies in any jurisdiction deemed proper by
it.
(d) Further Documentation. At any
time and from time to time, at the sole expense of Pledgor, Pledgor
will promptly and duly execute and deliver such further instruments
and documents and take such further action as the Secured Party may
reasonably request for the purpose of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein
granted. The undersigned Pledgor hereby authorizes Secured Party to
file with the appropriate filing office, now or hereafter from time
to time, financing statements, continuation statements and
amendments thereto, naming the undersigned as Pledgor and covering
all of the Collateral of Pledgor, including but not limited to any
specific listing, identification or type of all or any portion of
the assets of the undersigned. The Secured Party shall
provide Pledgor with a copy of any such filing. The undersigned
acknowledges and agrees, by evidence of its signature below, that
this authorization is sufficient to satisfy the requirements of
Revised Article 9 of the Uniform Commercial Code and the laws of
all other jurisdictions in which Required Filings are to be
made.
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(e) Indemnification. Pledgor agrees
to defend, indemnify and hold harmless Secured Party against any
and all liabilities, costs and expenses (including, without
limitation, all reasonable legal fees and expenses): (i) with
respect to, or resulting from, any delay in paying any and all
excise, sales or other taxes which may be payable or are determined
to be payable with respect to any of the Collateral; (ii) with
respect to, or resulting from, any breach of any law, rule,
regulation or order of any governmental authority applicable to any
of the Collateral; or (iii) in connection with a breach of any of
the transactions contemplated by this Agreement; provided, however, that this
indemnification shall not extend to any damages caused by the gross
negligence or willful misconduct of the Secured Party.
(f) Change of Jurisdiction of
Organization; Relocation of Business or Collateral. Pledgor
shall not change its jurisdiction of organization, relocate its
chief executive office, principal place of business or its records
or allow the relocation of any Collateral (unless such relocation
is in the ordinary course of business) without thirty (30) days
prior written notice to the Secured Party.
(g) Limitations
on Modifications of Accounts, Etc. Upon the occurrence and
during the continuation of any Event of Default (as defined in the
Credit Agreement or Credit Notes), Pledgor shall not, without the
Secured Party’s prior written consent, grant any extension of
the time of payment of any of the accounts, chattel paper,
instruments or amounts due under any contract or document,
compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partly, any person liable for
the payment thereof, or allow any credit or discount whatsoever
thereon other than trade discounts and rebates or payment
extensions granted in the ordinary course of Pledgor’s
business.
(h) Insurance. Pledgor shall
maintain insurance policies insuring the Collateral against loss or
damage from such risks and in such amounts and forms and with such
companies as are customarily maintained by businesses of similar
type and size to Pledgor.
(i) Authority. Pledgor has all
requisite corporate or other
powers and authority to execute this Agreement and to perform all
of its obligations hereunder, and this Agreement has been duly
executed and delivered by Pledgor and constitutes the legal, valid
and binding obligation of Pledgor, enforceable in accordance with
its terms. The execution, delivery and performance by Pledgor of
this Agreement have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau,
agency or instrumentality or domestic; (ii) violate any
provision of any law, rule or regulation or of any order, writ,
injunction or decree presently in effect, having applicability to
Pledgor or the articles of incorporation or by-laws of Pledgor; or
(iii) result in a breach of or constitute a default under any
material indenture, Loan or credit agreement or any other
agreement, lease or instrument to which Pledgor is a party or by
which it or its properties may be bound or affected.
(j) Defense of Intellectual
Property. Pledgor shall (i) use commercially reasonable
efforts to protect, defend and maintain the validity and
enforceability of its material copyrights, patents, trademarks and
trade secrets; (ii) use commercially reasonable efforts to
detect infringements of its copyrights, patents, trademarks and
trade secrets and promptly advise Secured Party in writing of
material infringements detected; and (iii) not allow any
copyrights, patents, trademarks or trade secrets material to
Pledgor’s businesses to be abandoned, forfeited or dedicated
to the public domain without the written consent of Secured
Party.
(k) Maintenance of Records. Pledgor
will keep and maintain at its own cost and expense satisfactory and
complete records of the Collateral and
may not relocate such books of account and records or tangible
Collateral unless it delivers to the Secured Party at least thirty
(30) days prior to such relocation (i) written notice of such
relocation and the new location thereof; and (ii) evidence that
appropriate financing statements under the UCC and other Required
Filings have been filed and recorded and other steps have been
taken to create in favor of the Secured Party, a valid, perfected
and continuing perfected first priority lien in the
Collateral.
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(l) Inspection Rights. Secured
Party will have full access during normal business hours, and upon
reasonable prior notice, to all of the books, correspondence and
other records of Pledgor relating to the Collateral, and Secured
Party or their representatives may examine such records and make
photocopies or otherwise take extracts from such records, subject
to Pledgor’s reasonable confidentiality requirements. Pledgor
agrees to render to Secured Party, at the expense of Pledgor, such
clerical and other assistance as may be reasonably requested with
regard to the exercise of its rights pursuant to this
paragraph.
(m) Compliance with Laws, Etc.
Pledgor shall comply in all material respects with all laws, rules,
regulations and orders of any governmental authority applicable to
any part of the Collateral or to the operation of Pledgor’s
businesses; provided, however, that Pledgor may
contest any such law, rule, regulation or order in any reasonable
manner which does not, in the reasonable opinion of Pledgor,
adversely affect Secured Party’s rights or the priority of
its liens on the Collateral.
(n) Payment of Obligations. Pledgor
shall pay before delinquency all obligations associated with the
Collateral, including license fees, taxes, assessments and
governmental charges or levies imposed upon the Collateral or with
respect to any of its income or profits derived from the
Collateral; as well as all claims of any kind (including, without
limitation, claims for labor, materials and supplies) against or
with respect to the Collateral, except that no such charge need be
paid if (i) the validity or amount of such charge is being
contested in good faith by appropriate proceedings; (ii) such
proceedings do not involve any material danger of the sale,
forfeiture or loss of any of the Collateral or any interest in the
Collateral; and (iii) such charge is adequately reserved
against on the books of Pledgor in accordance with generally
accepted accounting principles. The obligation of the Company to
repay the Loan evidenced by the Note, together with all interest
accrued thereon, is absolute and unconditional, and there exists no
right of set off or recoupment, counterclaim or defense of any
nature whatsoever to payment of the Loan.
(o) Limitations on Liens on
Collateral. Except for the First Lien and Permitted Liens,
Pledgor shall not create, incur or permit to exist, any liens on
the Collateral outside the scope of this Agreement other than
purchase money liens, liens incurred in the ordinary course of
business, liens for taxes not yet delinquent or which are being
contested in good faith , any lien on any real or personal property
at the time it is acquired, any lien renewing any of the foregoing,
and shall defend the Collateral against, and shall take such other
action as is necessary to remove, any lien or claim on or to the
Collateral, and shall defend the rights, title and interest of
Secured Party in and to any of the Collateral against the claims
and demands of all other persons. Any prior security interest and
lien granted by Pledgor to Secured Party in connection with the
Collateral shall remain in full force and effect, and Secured Party
shall continue to have a first-priority, perfected security
interest in and lien upon the collateral described
therein.
(p) Limitations on Dispositions of
Collateral. Pledgor shall not sell, transfer, lease or
otherwise dispose of a material portion of the Collateral, or offer
or contract to do so without the written consent of Secured Party;
provided,
however, that
Pledgor will be allowed to (i) sell its inventories in the ordinary
course of business; (ii) sell and grant non-exclusive licenses to
its products, intellectual property and related documentation in
the ordinary course of business; and (iii) dispose of obsolete or
worn out inventory.
(q) Good
Standing. Commencing on a date
which shall be not more than thirty (30) days from the date of this
Agreement, Pledgor shall be and at all times preserve and keep in
full force and effect its valid existence and good standing and any
rights and franchises material to its business.
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(r) Inventory. Except in the ordinary course of business and
pursuant to the First Lien, Pledgor may not consign any of its
inventory or sell any of its inventory on xxxx and hold, sale or
return, sale on approval, or other conditional terms of sale
without the consent of the
Secured Party, which shall not be unreasonably withheld or
delayed.
(s) Offices.
Pledgor may not relocate its chief
executive office to a new location without providing thirty (30)
days prior written notification thereof to the Secured Party and so
long as, at the time of such written notification, Pledgor provides
any financing statements or fixture filings necessary to perfect
and continue the perfection of the Security Interests granted and
evidenced by this Agreement.
(t) Certificates. At any time and from time to time that any
Collateral consists of instruments, certificated securities or
other items that require or permit possession by the secured party
to perfect the security interest created hereby, Pledgor shall
deliver such Collateral to the Agent.
(u) Tangible
Chattel. Pledgor shall cause
all tangible chattel paper constituting Collateral to be delivered
to the Secured Party, or, if such delivery is not possible, then to
cause such tangible chattel paper to contain a legend noting that
it is subject to the security interest created by this Agreement.
To the extent that any Collateral consists of electronic chattel
paper, Pledgor shall cause the underlying chattel paper to be
“marked” within the meaning of Section 9-105 of the UCC
(or successor section thereto).
(v) Third Party. To the extent that any Collateral is in the
possession of any third party, Pledgor shall join with the Secured
Party in notifying such third party of the Secured Party’s
security interest in such Collateral and shall use its best efforts
to obtain an acknowledgement and agreement from such third party
with respect to the Collateral, in form and substance reasonably
satisfactory to the Secured Party.
(w) Further Identification of
Collateral. Pledgor have full rights, title and interest in
and to all identified Collateral. Pledgor shall furnish to Secured
Party from time to time statements and schedules further
identifying and describing the Collateral and such other reports in
connection with the Collateral as Secured Party may reasonably
request, all in reasonable detail.
4. Secured Party’s Appointment as
Attorney-in-Fact.
(a) Powers. Pledgor and Secured
Party hereby appoint the officers or agents of Secured Party (each
an “Agent”) to
act on behalf of Secured Party, with full power of substitution, as
its attorney-in-fact with full irrevocable power and authority in
the place of Pledgor and in the name of Pledgor or in its own name,
so long as an Event of Default has occurred and is continuing, for
the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute any instrument which
may be necessary or desirable to accomplish the purposes of this
Agreement. Without limiting the foregoing, so long as an Event of
Default has occurred and is continuing, Secured Party, in its
discretion, will have the right, without notice to, or the consent
of Pledgor, to do any of the following on behalf of
Pledgor:
(i) to
pay or discharge any obligations in connection with the Collateral,
including license fees and taxes or liens levied or placed on or
threatened against the Collateral;
(ii) to
direct any party liable for any payment under any of the Collateral
to make payment of any and all amounts due or to become due
thereunder directly to Secured Party or as Secured Party
directs;
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(iii) to
ask for or demand, collect and receive payment of and receipt for
any payments due or to become due at any time in respect of or
arising out of any Collateral;
(iv) to
commence and prosecute any suits, actions or proceedings at law or
in equity in any court of competent jurisdiction to enforce any
right in respect of any Collateral;
(v) to
defend any suit, action or proceeding brought against any Pledgor
with respect to any Collateral;
(vi) to
settle, compromise or adjust any suit, action or proceeding
described in subsection (v) above and, to give such discharges or
releases in connection therewith as Secured Party may deem
appropriate;
(vii) to
assign any license or patent right included in the Collateral of a
Pledgor (along with the goodwill of the business to which any such
license or patent right pertains), throughout the world for such
term or terms, on such conditions and in such manner as Secured
Party in their sole discretion determine;
(viii) to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral and to take, at Secured
Party’s option and Pledgor’s expense, any actions which
Secured Party deem necessary to protect, preserve or realize upon
the Collateral and Secured Party’s liens on the Collateral
and to carry out the intent of this Agreement, in each case to the
same extent as if Secured Party were the absolute owners of the
Collateral for all purposes;
(ix) to
exercise the voting and other consensual rights which it would
otherwise be entitled to exercise and all rights of Pledgor to
receive the dividends and interests which it would otherwise be
authorized to receive and retain, shall cease. Upon such notice,
Agent shall have the right to receive, for the benefit of the
Secured Party, any interest, cash dividends or other payments on
the Collateral and, at the option of Agent, to exercise in such
Agent’s discretion all voting rights pertaining thereto.
Without limiting the generality of the foregoing, Agent shall have
the right (but not the obligation) to exercise all rights with
respect to the Collateral as it were the sole and absolute owner
thereof, including, without limitation, to vote and/or to exchange,
at its sole discretion, any or all of the Collateral in connection
with a merger, reorganization, consolidation, recapitalization or
other readjustment concerning or involving the Collateral of
Pledgor or any of its direct or indirect subsidiaries;
(x) to
operate the Business of Pledgor 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 delivery, in such
parcel or parcels and at such time or times and at such place or
places, and upon such terms and conditions as the Agent may deem
commercially reasonable, all without (except as shall be required
by applicable statute and cannot be waived) advertisement or demand
upon or notice to Pledgor or right of redemption of a Pledgor,
which are hereby expressly waived. Upon each such sale, lease,
assignment or other transfer of Collateral, the Secured Party, may,
unless prohibited by applicable law which cannot be waived,
purchase all or any part of the Collateral being sold, free from
and discharged of all trusts, claims, right of redemption and
equities of any Pledgor, which are hereby waived and
released;
(xi) to
sign and endorse any drafts, assignments, proxies, stock powers,
verifications, notices and other documents relating to the
Collateral; and
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(xii) to
notify Pledgor and any obligors under instruments or accounts to
make payments directly to the Agent, on behalf of the Secured
Party, and to enforce Pledgor’s rights against such account
Pledgor and obligors.
Pledgor
hereby ratifies whatever actions Secured Party lawfully does or
causes to be done in accordance with this Section 3. This power of
attorney will be a power coupled with an interest and will be
irrevocable.
(b) No Duty on Secured Party’s
Part. The powers conferred on Secured Party by this
Section 4 are solely to protect Secured Party’s interest
in the Collateral and do not impose any duty upon it to exercise
any such powers. Secured Party will be accountable only for amounts
that it actually receives as a result of the exercise of such
powers, and neither Secured Party nor any of their officers,
directors, employees or agents will, in the absence of willful
misconduct or gross negligence, be responsible to Pledgor for any
act or failure to act pursuant to this Section 4.
(c) Application
of Proceeds. The proceeds of
any sale, lease or other disposition of the Collateral hereunder or
from payments made on account of any insurance policy insuring any
portion of the Collateral shall be applied: (i) first, to the
expenses of retaking, holding, storing, processing and preparing
for sale, selling, and the like (including, without limitation, any
taxes, fees and other costs incurred in connection therewith) of
the Collateral, to the reasonable attorneys’ fees and
expenses incurred by the Agent in enforcing the Secured
Party’ rights hereunder and in connection with collecting,
storing and disposing of the Collateral; and (ii) then to
satisfaction of the Obligations, and to the payment of any other
amounts required by applicable law, after which the Secured Party
shall pay to Pledgor any surplus proceeds.
(d) Liability
for Deficiency. Upon the sale, license or other disposition
of the Collateral, the proceeds thereof are insufficient to pay all
amounts to which the Secured Party are legally entitled, Pledgor
will be liable for the deficiency, together with interest thereon,
at the Default Rate set forth in the Credit Notes or the lesser
amount permitted by applicable law (the “Default Rate”), and the reasonable
fees of any attorneys employed by the Secured Party to collect such
deficiency. To the extent permitted by applicable law, Pledgor
waives all claims, damages and demands against the Secured Party
arising out of the repossession, removal, retention or sale of the
Collateral, unless due solely to the gross negligence or willful
misconduct of the Secured Party as determined by a final judgment
(not subject to further appeal) of a court of competent
jurisdiction.
5. Duty To Hold In Trust.
Upon the occurrence of any Event of
Default and at any time thereafter, Pledgor shall, upon receipt of
any revenue, income
, dividend,
interest or other sums subject
to the Security Interests, whether payable pursuant to the Notes or
otherwise, or of any check, draft, note, trade acceptance 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, in accordance with
the provisions of Section 4(c) above and if any amounts are
remaining to the Secured Party, pro rata in proportion to their respective then-currently
outstanding principal amount of Note for application to the
satisfaction of the Obligations.
6. Expenses Incurred by Secured
Party. If Pledgor fail to perform or comply with any of its
agreements or covenants contained in this Agreement, and Secured
Party performs or complies, or otherwise causes performance or
compliance, with such agreement or covenant in accordance with the
terms of this Agreement, then the reasonable expenses of Secured
Party incurred in connection with such performance or compliance
will be payable by Pledgor to the Secured Parties on demand and
will constitute Obligations secured by this Agreement.
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7. Remedies. If an Event of
Default has occurred and is continuing, Secured Party may exercise,
in addition to all other rights and remedies granted to it in this
Agreement and in any other instrument or agreement relating to the
Obligations, all rights and remedies of a Secured Party under the
New York Uniform Commercial Code, as amended from time to time (the
“Code”). Without
limiting the foregoing, in such circumstances, without demand of
performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law) to or upon
Pledgor or any other person (all of which demands, defenses,
advertisements and notices are hereby waived), Secured Party may
collect, receive, appropriate and realize upon any or all of the
Collateral and/or may sell, lease, assign, give an option or
options to purchase or otherwise dispose of and deliver any or all
of the Collateral (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any
exchange, broker’s board or office of Secured Party or
elsewhere upon such terms and conditions as Secured Party may deem
advisable, for cash or on credit or for future delivery without
assumption of any credit risk. Secured Party will have the right
upon any such public sale or sales and, to the extent permitted by
law, upon any such private sale or sales, to purchase all or any
part of the Collateral so sold, free of any right or equity of
redemption in Pledgor, which right or equity is hereby waived or
released. Subject to the provisions of Section 4(c), Secured Party
will apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all
reasonable expenses incurred therein or in connection with the care
or safekeeping of any of the Collateral or in any way relating to
the Collateral or the rights of Secured Party under this Agreement
(including, without limitation, reasonable attorneys’ fees
and expenses) to the payment in whole or in part of the
Obligations, in such order as Secured Party may elect, and only
after such application and after the payment by Secured Party of
any other amount required by any provision of law, need Secured
Party account for the surplus, if any, to Pledgor. To the extent
permitted by applicable law, Pledgor waives all claims, damage and
demands it may acquire against Secured Party arising out of the
exercise by Secured Party of any of its rights hereunder. If any
notice of a proposed sale or other disposition of Collateral is
required by law, such notice will be deemed reasonable and proper
if given at least ten (10) days before such sale or other
disposition. Pledgor will remain liable for any deficiency of
Pledgor if the proceeds of any sale or other disposition of the
Collateral are insufficient to pay the Obligations and the
reasonable fees and disbursements of any attorneys employed by
Secured Party to collect such deficiency.
8. Limitation on Duties Regarding
Preservation of Collateral. The sole duty of Secured Party
with respect to the custody, safekeeping and preservation of the
Collateral, under the appropriate Code section or otherwise, will
be to deal with it in the same manner as Secured Party deals with
similar property for its own account. Neither Secured Party nor any
of its employees, affiliates or agents will be liable for failure
to demand, collect or realize upon all or any part of the
Collateral or for any delay in doing so or will be under any
obligation to sell or otherwise dispose of any Collateral upon the
request of Pledgor or otherwise.
9. Powers Coupled with an
Interest. All authorizations and agencies contained in this
Agreement with respect the Collateral are irrevocable and powers
coupled with an interest.
10. No Waiver; Cumulative Remedies.
Secured Party will not by any act (except by a written instrument
pursuant to Section 11(a) hereof) of delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Event of Default under the
Note or in any breach of any of the terms and conditions of this
Agreement. No failure to exercise, nor any delay in exercising, on
the part of Secured Party, any right, power or privilege hereunder
will operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder will preclude any other or
further exercise thereof or the exercise of any other right, power
or privilege. A waiver by Secured Party of any right or remedy
under this Agreement on any one occasion will not be construed as a
bar to any right or remedy that Secured Party would otherwise have
on any subsequent occasion. The rights and remedies provided in
this Agreement are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies
provided by law.
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11. Miscellaneous.
(a) Amendments and Waivers. Any
term of this Agreement may only be amended by prior written consent
of Pledgor and the Secured Party. Any amendment or waiver effected
in accordance with this Section 11(a) will be binding upon all of
the parties hereto and their respective successors and
assigns.
(b) Transfer; Successors and
Assigns. This Agreement will be binding upon and inure to
the benefit of Pledgor and Secured Party, and their respective
successors or assigns. Pledgor may not assign any of its/his rights
or delegate any of its/his duties under this
Agreement.
(c) Governing Law. This Agreement
will be governed by and construed in accordance with the laws of
the State of Delaware without regard to the laws that might be
applicable under conflicts of laws principles. Any action or
proceeding seeking to enforce any provision of, or based on any
right arising out of, any of this Agreement must be brought against
any of the parties in the courts of the State of Delaware, Kent
County, or, if it has or can acquire jurisdiction, in the United
States District Court for the District of Delaware, and each of the
parties consents to the jurisdiction of those courts (and of the
appropriate appellate courts) in any such action or proceeding and
waives any objection to venue laid therein. Nothing in this Section
11(c), however, affects the right of any party to serve legal
process in any other manner permitted by law.
(d) Counterparts. This Agreement
may be executed in any number of counterparts (including by
facsimile), each of which will be an original, but all of which
together will constitute one instrument.
(e) Titles and Subtitles. The
titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or
interpreting this Agreement.
(f) Notices. All notices, requests
and demands to or upon the Secured Party or Pledgor hereunder shall
be effected in the manner provided for in the Purchase
Agreement.
(g) Term. This Agreement shall terminate on the date on
which all payments under the Notes have been indefeasibly satisfied
in full and all other Obligations have been satisfied in full or
discharged (through cash payment or conversion);
provided,
however,
that all indemnities of the Notes contained in this Agreement shall
survive and remain operative and in full force and effect
regardless of the termination of this
Agreement.
(h) Severability. In the event that
any one or more of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal or unenforceable in
any respect, such provision(s) shall be ineffective only to the
extent of such invalidity, illegality or unenforceability without
invalidating the remainder of such provision or the remaining
provisions of this Agreement and such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement, which shall remain in full force and
effect.
(i) Entire Agreement. This
Agreement and the other documents evidencing, securing, or relating
to the Notes constitute the entire understanding and agreement
between the parties with regard to the subjects hereof and thereof
and supersede all prior agreements, representations and
undertakings of the parties, whether oral or written, with respect
to such subject matter.
(j)
Secured Party
Representations and Warranties. Secured Party hereby
represents and warrants that he (i) has engaged his own independent
legal and financial advisors in connection with the Loan
contemplated by this Agreement and the Loan Documents, (ii)
understands that a substantial part of the Collateral consists of
certain assets (i.e. green coffee inventory and
the proceeds thereof) owned by Pledgor and located in Nicaragua
(the “Foreign Assets”), (iii) understands that
perfecting his security interest over the Foreign Assets and
foreclosing against the Foreign Assets will be difficult, will
require compliance with local laws and regulations regarding
perfection of security interests and foreclosure and will require
Secured Party to engage independent legal counsel familiar with the
requirements under Nicaraguan law in order to attempt to perfect
such security interest and/or foreclose against the Foreign Assets,
(iv) is not relying solely or predominantly on his ability to
obtain a perfected security interest in the Foreign Assets and/or
his ability to foreclose against the Foreign Assets in making his
decision to invest in the Company by purchasing the Credit Note,
(v) understands that similar to the state-by-state lender licensing
regime and requirements for perfection of security interests by
filing financing statements in the U.S., a U.S. lender desiring to
obtain a security interest over the foreign assets of a borrower
may be required by local laws of the foreign jurisdiction to obtain
a license or governmental approval or file certain paperwork
documents, instruments or other information with the local
authorities, and (vi) understands that each foreign jurisdiction
has specific licensing and registration and filing requirements,
making consultation with counsel in the jurisdiction critical.
Neither the Company, the Placement Agent nor any of their
representatives or legal counsel makes any representation or
warranty regarding the ability of the Secured Party to obtain a
perfected security interest in the Foreign Assets or the ability of
the Secured Party to foreclose thereon.
[Signature
pages follows]
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IN
WITNESS WHEREOF, Pledgor and Secured Party have caused this
Agreement to be duly executed and delivered as of the date first
above written.
SECURED
PARTY:
/s/ Xxxx
Xxxxxx
Xxxx
Xxxxxx
CLR
ROASTERS, LLC
By: /s/ Xxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Manager
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