SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement"), is entered into and
made effective as of December ___, 2005, by and between ALFA
INTERNATIONAL HOLDINGS CORP., a Delaware corporation with its
principal place of business located at 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000 (the "Company"), and the BUYER(S)
listed on Schedule I attached to the Securities Purchase
Agreement dated the date hereof (the "Secured Party").
WHEREAS, the Company shall issue and sell to the Secured
Party, as provided in the Securities Purchase Agreement of even
date herewith between the Company and the Secured Party (the
"Securities Purchase Agreement"), and the Secured Party shall
purchase up to Five Hundred Thousand Dollars ($500,000) of
secured convertible debentures (the "Convertible Debentures"),
which shall be convertible into shares of the Company's common
stock, par value $0.001 (the "Common Stock") (as converted, the
"Conversion Shares") in the respective amounts set forth
opposite each Buyer(s) name on Schedule I attached to the
Securities Purchase Agreement;
WHEREAS, to induce the Secured Party to enter into the
transaction contemplated by the Securities Purchase Agreement,
the Convertible Debentures, the Investor Registration Rights
Agreement of even date herewith between the Company and the
Secured Party (the "Investor Registration Rights Agreement"),
the Pledge and Escrow Agreement of even date herewith among the
Company, the Secured Party and Xxxxx Xxxxxxxx, Esq. (the "Pledge
Agreement"), the Escrow Agreement of even date herewith among
the Company, the Secured Party, and Xxxxx Xxxxxxxx, Esq. (the
"Escrow Agreement"), and the Irrevocable Transfer Agent
Instructions among the Company, the Secured Party, Transfer
Agent, and Xxxxx Xxxxxxxx, Esq. (the "Transfer Agent
Instructions") (collectively referred to as the "Transaction
Documents"), the Company hereby grants to the Secured Party a
security interest in and to the pledged property identified on
Exhibit A hereto (collectively referred to as the "Pledged
Property") until the satisfaction of the Obligations, as defined
herein below.
NOW, THEREFORE, in consideration of the promises and the
mutual covenants herein contained, and for other good and
valuable consideration, the adequacy and receipt of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS AND INTERPRETATIONS
Section 1.1. Recitals.
The above recitals are true and correct and are
incorporated herein, in their entirety, by this reference.
Section 1.2. Interpretations.
Nothing herein expressed or implied is intended or shall
be construed to confer upon any person other than the Secured
Party any right, remedy or claim under or by reason hereof.
Section 1.3. Obligations Secured.
The obligations secured hereby are any and all obligations
of the Company now existing or hereinafter incurred to the
Secured Party, whether oral or written and whether arising
before, on or after the date hereof including, without
limitation, those obligations of the Company to the Secured
Party under this Agreement, the Transaction Documents, and any
other amounts now or hereafter owed to the Secured Party by the
Company thereunder or hereunder (collectively, the
"Obligations").
ARTICLE 2.
PLEDGED PROPERTY, ADMINISTRATION OF COLLATERAL
AND TERMINATION OF SECURITY INTEREST
Section 2.1. Pledged Property.
(a) Company hereby pledges to the Secured Party, and
creates in the Secured Party for its benefit, a security
interest for such time until the Obligations are paid in full,
in and to all of the property of the Company as set forth in
Exhibit "A" attached hereto and the products thereof and the
proceeds of all such items (collectively, the "Pledged
Property"):
(b) Simultaneously with the execution and delivery of this
Agreement, the Company shall make, execute, acknowledge, file,
record and deliver to the Secured Party any documents reasonably
requested by the Secured Party to perfect its security interest
in the Pledged Property. Simultaneously with the execution and
delivery of this Agreement, the Company shall make, execute,
acknowledge and deliver to the Secured Party such documents and
instruments, including, without limitation, financing
statements, certificates, affidavits and forms as may, in the
Secured Party's reasonable judgment, be necessary to effectuate,
complete or perfect, or to continue and preserve, the security
interest of the Secured Party in the Pledged Property, and the
Secured Party shall hold such documents and instruments as
secured party, subject to the terms and conditions contained
herein.
Section 2.2. Rights; Interests; Etc.
(a) So long as no Event of Default (as hereinafter
defined) shall have occurred and be continuing:
(i) the Company shall be entitled to exercise any and
all rights pertaining to the Pledged Property or any part
thereof for any purpose not inconsistent with the terms hereof;
and
(ii) the Company shall be entitled to receive and
retain any and all payments paid or made in respect of the
Pledged Property.
(b) Upon the occurrence and during the continuance of an
Event of Default:
(i) All rights of the Company to exercise the rights
which it would otherwise be entitled to exercise pursuant to
Section 2.2(a)(i) hereof and to receive payments which it
would otherwise be authorized to receive and retain pursuant to
Section 2.2(a)(ii) hereof shall be suspended, and all such
rights shall thereupon become vested in the Secured Party who
shall thereupon have the sole right to exercise such rights and
to receive and hold as Pledged Property such payments; provided,
however, that if the Secured Party shall become entitled and
shall elect to exercise its right to realize on the Pledged
Property pursuant to Article 5 hereof, then all cash sums
received by the Secured Party, or held by Company for the
benefit of the Secured Party and paid over pursuant to Section
2.2(b)(ii) hereof, shall be applied against any outstanding
Obligations; and
(ii) All interest, dividends, income and other
payments and distributions which are received by the Company
contrary to the provisions of Section 2.2(b)(i) hereof shall be
received in trust for the benefit of the Secured Party, shall be
segregated from other property of the Company and shall be
forthwith paid over to the Secured Party; or
(iii) The Secured Party in its sole discretion shall
be authorized to sell any or all of the Pledged Property at
public or private sale in order to recoup all of the outstanding
principal plus accrued interest owed pursuant to the Convertible
Debenture as described herein.
(c) An "Event of Default" shall be deemed to have occurred
under this Agreement upon an Event of Default under the
Convertible Debentures.
ARTICLE 3.
ATTORNEY-IN-FACT; PERFORMANCE
Section 3.1. Secured Party Appointed Attorney-In-Fact.
Upon the occurrence of an Event of Default, the Company
hereby appoints the Secured Party as its attorney-in-fact, with
full authority in the place and stead of the Company and in the
name of the Company or otherwise, from time to time in the
Secured Party's discretion to take any action and to execute any
instrument which the Secured Party may reasonably deem necessary
to accomplish the purposes of this Agreement, including, without
limitation, to receive and collect all instruments made payable
to the Company representing any payments in respect of the
Pledged Property or any part thereof and to give full discharge
for the same. The Secured Party may demand, collect, receipt
for, settle, compromise, adjust, xxx for, foreclose, or realize
on the Pledged Property as and when the Secured Party may
determine. To facilitate collection, the Secured Party may
notify account debtors and obligors on any Pledged Property to
make payments directly to the Secured Party.
Section 3.2. Secured Party May Perform.
If the Company fails to perform any agreement contained
herein, the Secured Party, at its option, may itself perform, or
cause performance of, such agreement, and the expenses of the
Secured Party incurred in connection therewith shall be included
in the Obligations secured hereby and payable by the Company
under Section 8.3.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES
Section 4.1. Authorization; Enforceability.
Each of the parties hereto represents and warrants that it
has taken all action necessary to authorize the execution,
delivery and performance of this Agreement and the transactions
contemplated hereby; and upon execution and delivery, this
Agreement shall constitute a valid and binding obligation of the
respective party, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors'
rights or by the principles governing the availability of
equitable remedies.
Section 4.2. Ownership of Pledged Property.
The Company warrants and represents that it is the legal
and beneficial owner of the Pledged Property free and clear of
any lien, security interest, option or other charge or
encumbrance except for the security interest created by this
Agreement.
ARTICLE 5.
DEFAULT; REMEDIES; SUBSTITUTE COLLATERAL
Section 5.1. Default and Remedies.
(a) If an Event of Default occurs, then in each such case
the Secured Party may declare the Obligations to be due and
payable immediately, by a notice in writing to the Company, and
upon any such declaration, the Obligations shall become
immediately due and payable.
(b) Upon the occurrence of an Event of Default, the
Secured Party shall: (i) be entitled to receive all
distributions with respect to the Pledged Property, (ii) to
cause the Pledged Property to be transferred into the name of
the Secured Party or its nominee, (iii) to dispose of the
Pledged Property, and (iv) to realize upon any and all rights in
the Pledged Property then held by the Secured Party.
Section 5.2. Method of Realizing Upon the Pledged
Property: Other Remedies.
Upon the occurrence of an Event of Default, in addition to
any rights and remedies available at law or in equity, the
following provisions shall govern the Secured Party's right to
realize upon the Pledged Property:
(a) Any item of the Pledged Property may be sold for cash
or other value in any number of lots at brokers board, public
auction or private sale and may be sold without demand,
advertisement or notice (except that the Secured Party shall
give the Company ten (10) days' prior written notice of the time
and place or of the time after which a private sale may be made
(the "Sale Notice")), which notice period is hereby agreed to be
commercially reasonable. At any sale or sales of the Pledged
Property, the Company may bid for and purchase the whole or any
part of the Pledged Property and, upon compliance with the terms
of such sale, may hold, exploit and dispose of the same without
further accountability to the Secured Party. The Company will
execute and deliver, or cause to be executed and delivered, such
instruments, documents, assignments, waivers, certificates, and
affidavits and supply or cause to be supplied such further
information and take such further action as the Secured Party
reasonably shall require in connection with any such sale.
(b) Any cash being held by the Secured Party as Pledged
Property and all cash proceeds received by the Secured Party in
respect of, sale of, collection from, or other realization upon
all or any part of the Pledged Property shall be applied as
follows:
(i) to the payment of all amounts due the Secured
Party for the expenses reimbursable to it hereunder or owed to
it pursuant to Section 8.3 hereof;
(ii) to the payment of the Obligations then due and
unpaid.
(iii) the balance, if any, to the person or persons
entitled thereto, including, without limitation, the Company.
(c) In addition to all of the rights and remedies which
the Secured Party may have pursuant to this Agreement, the
Secured Party shall have all of the rights and remedies provided
by law, including, without limitation, those under the Uniform
Commercial Code.
(i) If the Company fails to pay such amounts due upon
the occurrence of an Event of Default which is continuing, then
he Secured Party may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company and collect the monies adjudged or decreed
to be payable in the manner provided by law out of the property
of Company, wherever situated.
(ii) The Company agrees that it shall be liable for
any reasonable fees, expenses and costs incurred by the Secured
Party in connection with enforcement, collection and
preservation of the Transaction Documents, including, without
limitation, reasonable legal fees and expenses, and such amounts
shall be deemed included as Obligations secured hereby and
payable as set forth in Section 8.3 hereof.
Section 5.3. Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relating to the Company or the property of the
Company or of such other obligor or its creditors, the Secured
Party (irrespective of whether the Obligations shall then be due
and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Secured Party shall have made
any demand on the Company for the payment of the Obligations),
subject to the rights of Previous Security Holders, shall be
entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of
the Obligations and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Secured Party (including any claim for the reasonable legal fees
and expenses and other expenses paid or incurred by the Secured
Party permitted hereunder and of the Secured Party allowed in
such judicial proceeding), and
(ii) to collect and receive any monies or other
property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by the Secured
Party to make such payments to the Secured Party and, in the
event that the Secured Party shall consent to the making of such
payments directed to the Secured Party, to pay to the Secured
Party any amounts for expenses due it hereunder.
Section 5.4. Duties Regarding Pledged Property.
The Secured Party shall have no duty as to the collection
or protection of the Pledged Property or any income thereon or
as to the preservation of any rights pertaining thereto,
beyond the safe custody and reasonable care of any of the
Pledged Property actually in the Secured Party's possession.
ARTICLE 6.
AFFIRMATIVE COVENANTS
The Company covenants and agrees that, from the date hereof
and until the Obligations have been fully paid and satisfied,
unless the Secured Party shall consent otherwise in writing (as
provided in Section 8.4 hereof):
Section 6.1. Existence, Properties, Etc.
(a) The Company shall do, or cause to be done, all things,
or proceed with due diligence with any actions or courses of
action, that may be reasonably necessary (i) to maintain
Company's due organization, valid existence and good standing
under the laws of its state of incorporation, and (ii) to
preserve and keep in full force and effect all qualifications,
licenses and registrations in those jurisdictions in which the
failure to do so could have a Material Adverse Effect (as
defined below); and (b) the Company shall not do, or cause to be
done, any act impairing the Company's corporate power or
authority (i) to carry on the Company's business as now
conducted, and (ii) to execute or deliver this Agreement or any
other document delivered in connection herewith, including,
without limitation, any UCC-1 Financing Statements required by
the Secured Party to which it is or will be a party, or perform
any of its obligations hereunder or thereunder. For purpose of
this Agreement, the term "Material Adverse Effect" shall mean
any material and adverse affect as determined by Secured Party
in its sole discretion, whether individually or in the
aggregate, upon (a) the Company's assets, business, operations,
properties or condition, financial or otherwise; (b) the
Company's to make payment as and when due of all or any part of
the Obligations; or (c) the Pledged Property.
Section 6.2. Financial Statements and Reports.
The Company shall furnish to the Secured Party within a
reasonable time such financial data as the Secured Party may
reasonably request, including, without limitation, the
following:
(a) The balance sheet of the Company as of the close of
each fiscal year, the statement of earnings and retained
earnings of the Company as of the close of such fiscal year, and
statement of cash flows for the Company for such fiscal year,
all in reasonable detail, prepared in accordance with generally
accepted accounting principles consistently applied, certified
by the chief executive and chief financial officers of the
Company as being true and correct and accompanied by a
certificate of the chief executive and chief financial officers
of the Company, stating that the Company has kept, observed,
performed and fulfilled each covenant, term and condition of
this Agreement during such fiscal year and that no Event of
Default hereunder has occurred and is continuing, or if an Event
of Default has occurred and is continuing, specifying the nature
of same, the period of existence of same and the action the
Company proposes to take in connection therewith;
(b) A balance sheet of the Company as of the close of each
quarter, and statement of earnings and retained earnings of the
Company as of the close of such quarter, all in reasonable
detail, and prepared substantially in accordance with generally
accepted accounting principles consistently applied, certified
by the chief executive and chief financial officers of the
Company as being true and correct; and
(c) Copies of all accountants' reports and accompanying
financial reports submitted to the Company by independent
accountants in connection with each annual examination of the
Company.
Section 6.3. Accounts and Reports.
The Company shall maintain a standard system of accounting
in accordance with generally accepted accounting principles
consistently applied and provide, at its sole expense, to the
Secured Party the following:
(a) as soon as available, a copy of any notice or other
communication alleging any nonpayment or other material breach
or default, or any foreclosure or other action respecting any
material portion of its assets and properties, received
respecting any of the indebtedness of the Company in excess of
$15,000 (other than the Obligations), or any demand or other
request for payment under any guaranty, assumption, purchase
indebtedness or obligations of others in excess of $15,000,
including any received from any person acting on behalf of the
Secured Party or beneficiary thereof; and
(b) within fifteen (15) days after the making of each
submission or filing, a copy of any report, financial statement,
notice or other document, whether periodic or otherwise,
submitted to the shareholders of the Company, or submitted to or
filed by the Company with any governmental authority involving
or affecting (i) the Company that could have a Material Adverse
Effect; (ii) the Obligations; (iii) any part of the Pledged
Property; or (iv) any of the transactions contemplated in this
Agreement or the Loan Instruments.
Section 6.4. Maintenance of Books and Records;
Inspection.
The Company shall maintain its books, accounts and records
in accordance with generally accepted accounting principles
consistently applied, and permit the Secured Party, its officers
and employees and any professionals designated by the Secured
Party in writing, at any time to visit and inspect any of its
properties (including but not limited to the collateral security
described in the Transaction Documents and/or the Loan
Instruments), corporate books and financial records, and to
discuss its accounts, affairs and finances with any employee,
officer or director thereof.
Section 6.5. Maintenance and Insurance.
(a) The Company shall maintain or cause to be
maintained, at its own expense, all of its assets and properties
in good working order and condition, making all necessary
repairs thereto and renewals and replacements thereof.
(b) The Company shall maintain or cause to be
maintained, at its own expense, insurance in form, substance
and amounts (including deductibles), which the Company deems
reasonably necessary to the Company's business, (i) adequate to
insure all assets and properties of the Company, which assets
and properties are of a character usually insured by persons
engaged in the same or similar business against loss or damage
resulting from fire or other risks included in an extended
coverage policy; (ii) against public liability and other tort
claims that may be incurred by the Company; (iii) as may be
required by the Transaction Documents and/or applicable law and
(iv) as may be reasonably requested by Secured Party, all with
adequate, financially sound and reputable insurers.
Section 6.6. Contracts and Other Collateral.
The Company shall perform all of its obligations under or
with respect to each instrument, receivable, contract and other
intangible included in the Pledged Property to which the Company
is now or hereafter will be party on a timely basis and in the
manner therein required, including, without limitation, this
Agreement.
Section 6.7. Defense of Collateral, Etc.
The Company shall defend and enforce its right, title and
interest in and to any part of: (a) the Pledged Property; and
(b) if not included within the Pledged Property, those assets
and properties whose loss could have a Material Adverse Effect,
the Company shall defend the Secured Party's right, title and
interest in and to each and every part of the Pledged Property,
each against all manner of claims and demands on a timely basis
to the full extent permitted by applicable law.
Section 6.8. Payment of Debts, Taxes, Etc.
The Company shall pay, or cause to be paid, all of its
indebtedness and other liabilities and perform, or cause to be
performed, all of its obligations in accordance with the
respective terms thereof, and pay and discharge, or cause to be
paid or discharged, all taxes, assessments and other
governmental charges and levies imposed upon it, upon any of its
assets and properties on or before the last day on which the
same may be paid without penalty, as well as pay all other
lawful claims (whether for services, labor, materials, supplies
or otherwise) as and when due.
Section 6.9. Taxes and Assessments; Tax Indemnity.
The Company shall (a) file all tax returns and appropriate
schedules thereto that are required to be filed under applicable
law, prior to the date of delinquency, (b) pay and discharge all
taxes, assessments and governmental charges or levies imposed
upon the Company, upon its income and profits or upon any
properties belonging to it, prior to the date on which penalties
attach thereto, and (c) pay all taxes, assessments and
governmental charges or levies that, if unpaid, might become a
lien or charge upon any of its properties; provided, however,
that the Company in good faith may contest any such tax,
assessment, governmental charge or levy described in the
foregoing clauses (b) and (c) so long as appropriate reserves
are maintained with respect thereto.
Section 6.10. Compliance with Law and Other Agreements.
The Company shall maintain its business operations and
property owned or used in connection therewith in compliance
with (a) all applicable federal, state and local laws,
regulations and ordinances governing such business operations
and the use and ownership of such property, and (b) all
agreements, licenses, franchises, indentures and mortgages to
which the Company is a party or by which the Company or any of
its properties is bound. Without limiting the foregoing, the
Company shall pay all of its indebtedness promptly in accordance
with the terms thereof.
Section 6.11. Notice of Default.
The Company shall give written notice to the Secured Party
of the occurrence of any default or Event of Default under this
Agreement, the Transaction Documents or any other Loan
Instrument or any other agreement of Company for the payment of
money, promptly upon the occurrence thereof.
Section 6.12. Notice of Litigation.
The Company shall give notice, in writing, to the Secured
Party of (a) any actions, suits or proceedings wherein the
amount at issue is in excess of $50,000, instituted by any
persons against the Company, or affecting any of the assets of
the Company, and (b) any dispute, not resolved within fifteen
(15) days of the commencement thereof, between the Company on
the one hand and any governmental or regulatory body on the
other hand, which might reasonably be expected to have a
Material Adverse Effect on the business operations or financial
condition of the Company.
ARTICLE 7.
NEGATIVE COVENANTS
The Company covenants and agrees that, from the date hereof
until the Obligations have been fully paid and satisfied, the
Company shall not, unless the Secured Party shall consent
otherwise in writing:
Section 7.1. Indebtedness.
The Company shall not directly or indirectly permit,
create, incur, assume, permit to exist, increase, renew or
extend on or after the date hereof any indebtedness on its part,
including commitments, contingencies and credit availabilities,
or apply for or offer or agree to do any of the foregoing.
Section 7.2. Liens and Encumbrances.
The Company shall not directly or indirectly make, create,
incur, assume or permit to exist any assignment, transfer,
pledge, mortgage, security interest or other lien or encumbrance
of any nature in, to or against any part of the Pledged Property
or of the Company's capital stock, or offer or agree to do so,
or own or acquire or agree to acquire any asset or property of
any character subject to any of the foregoing encumbrances
(including any conditional sale contract or other title
retention agreement), or assign, pledge or in any way transfer
or encumber its right to receive any income or other
distribution or proceeds from any part of the Pledged Property
or the Company's capital stock; or enter into any sale-leaseback
financing respecting any part of the Pledged Property as lessee,
or cause or assist the inception or continuation of any of the
foregoing.
Section 7.3. Certificate of Incorporation, By-Laws,
Mergers, Consolidations, Acquisitions and Sales.
Without the prior express written consent of the Secured
Party, the Company shall not: (a) Amend its Certificate of
Incorporation or By-Laws; (b) issue or sell its stock, stock
options, bonds, notes or other corporate securities or
obligations; (c) be a party to any merger, consolidation or
corporate reorganization, (d) purchase or otherwise acquire all
or substantially all of the assets or stock of, or any
partnership or joint venture interest in, any other person, firm
or entity, (e) sell, transfer, convey, grant a security interest
in or lease all or any substantial part of its assets, nor (f)
create any subsidiaries nor convey any of its assets to any
subsidiary.
Section 7.4. Management, Ownership.
The Company shall not materially change its ownership,
executive staff or management without the prior written consent
of the Secured Party. The ownership, executive staff and
management of the Company are material factors in the Secured
Party's willingness to institute and maintain a lending
relationship with the Company.
Section 7.5. Dividends, Etc.
Except with respect to its shares of Series B Preferred
Stock outstanding as of the date hereof, the Company shall not
declare or pay any dividend of any kind, in cash or in property,
on any class of its capital stock, nor purchase, redeem, retire
or otherwise acquire for value any shares of such stock, nor
make any distribution of any kind in respect thereof, nor make
any return of capital to shareholders, nor make any payments in
respect of any pension, profit sharing, retirement, stock
option, stock bonus, incentive compensation or similar plan
(except as required or permitted hereunder), without the prior
written consent of the Secured Party.
Section 7.6. Guaranties; Loans.
The Company shall not guarantee nor be liable in any
manner, whether directly or indirectly, or become contingently
liable after the date of this Agreement in connection with the
obligations or indebtedness of any person or persons, except for
(i) the indebtedness currently secured by the liens identified
on the Pledged Property identified on Exhibit A hereto and (ii)
the endorsement of negotiable instruments payable to the Company
for deposit or collection in the ordinary course of business.
The Company shall not make any loan, advance or extension of
credit to any person other than in the normal course of its
business.
Section 7.7. Debt.
The Company shall not create, incur, assume or suffer to
exist any additional indebtedness of any description whatsoever
in an aggregate amount in excess of $25,000 (excluding any
indebtedness of the Company to the Secured Party, trade accounts
payable and accrued expenses incurred in the ordinary course of
business and the endorsement of negotiable instruments payable
to the Company, respectively for deposit or collection in the
ordinary course of business).
Section 7.8. Conduct of Business.
The Company will continue to engage, in an efficient and
economical manner, in a business of the same general type as
conducted by it on the date of this Agreement.
Section 7.9. Places of Business.
The location of the Company's chief place of business is
000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000. The Company
shall not change the location of its chief place of business,
chief executive office or any place of business disclosed to the
Secured Party or move any of the Pledged Property from its
current location without thirty (30) days' prior written notice
to the Secured Party in each instance.
ARTICLE 8.
MISCELLANEOUS
Section 8.1. Notices.
All notices or other communications required or permitted
to be given pursuant to this Agreement shall be in writing and
shall be considered as duly given on: (a) the date of delivery,
if delivered in person, by nationally recognized overnight
delivery service or (b) five (5) days after mailing if mailed
from within the continental United States by certified mail,
return receipt requested to the party entitled to receive the
same:
If to the Secured Party: Cornell Capital Partners, LP
000 Xxxxxx Xxxxxx-Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx Xxxxxxxx, Esq.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
And if to the Company: Alfa International Holdings Corp.
Empire State Building-Suite 1103
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address by giving notice to the other
party stating its new address. Commencing on the tenth (10th)
day after the giving of such notice, such newly designated
address shall be such party's address for the purpose of all
notices or other communications required or permitted to be
given pursuant to this Agreement.
Section 8.2. Severability.
If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or
render invalid or unenforceable any other severable provision of
this Agreement, and this Agreement shall be carried out as if
any such invalid or unenforceable provision were not contained
herein.
Section 8.3. Expenses.
In the event of an Event of Default, the Company will pay
to the Secured Party the amount of any and all reasonable
expenses, including the reasonable fees and expenses of its
counsel, which the Secured Party may incur in connection with:
(i) the custody or preservation of, or the sale, collection
from, or other realization upon, any of the Pledged Property;
(ii) the exercise or enforcement of any of the rights of the
Secured Party hereunder or (iii) the failure by the Company to
perform or observe any of the provisions hereof.
Section8.4. Waivers, Amendments, Etc.
The Secured Party's delay or failure at any time or times
hereafter to require strict performance by Company of any
undertakings, agreements or covenants shall not waiver, affect,
or diminish any right of the Secured Party under this Agreement
to demand strict compliance and performance herewith. Any
waiver by the Secured Party of any Event of Default shall not
waive or affect any other Event of Default, whether such Event
of Default is prior or subsequent thereto and whether of the
same or a different type. None of the undertakings, agreements
and covenants of the Company contained in this Agreement, and no
Event of Default, shall be deemed to have been waived by the
Secured Party, nor may this Agreement be amended, changed or
modified, unless such waiver, amendment, change or modification
is evidenced by an instrument in writing specifying such waiver,
amendment, change or modification and signed by the Secured
Party.
Section8.5. Continuing Security Interest.
This Agreement shall create a continuing security interest
in the Pledged Property and shall: (i) remain in full force and
effect until payment in full of the Obligations; and (ii) be
binding upon the Company and its successors and heirs and (iii)
inure to the benefit of the Secured Party and its successors and
assigns. Upon the payment or satisfaction in full of the
Obligations, the Company shall be entitled to the return, at its
expense, of such of the Pledged Property as shall not have been
sold in accordance with Section 5.2 hereof or otherwise applied
pursuant to the terms hereof.
Section 8.6. Independent Representation.
Each party hereto acknowledges and agrees that it has
received or has had the opportunity to receive independent legal
counsel of its own choice and that it has been sufficiently
apprised of its rights and responsibilities with regard to the
substance of this Agreement.
Section 8.7. Applicable Law: Jurisdiction.
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without
regard to the principles of conflict of laws. The parties
further agree that any action between them shall be heard in
Xxxxxx County, New Jersey, and expressly consent to the
jurisdiction and venue of the Superior Court of New Jersey,
sitting in Xxxxxx County and the United States District Court
for the District of New Jersey sitting in Newark, New Jersey for
the adjudication of any civil action asserted pursuant to this
Paragraph.
Section 8.8. Waiver of Jury Trial.
AS A FURTHER INDUCEMENT FOR THE SECURED PARTY TO ENTER INTO
THIS AGREEMENT AND TO MAKE THE FINANCIAL ACCOMMODATIONS TO THE
COMPANY, THE COMPANY HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR
ANY AND ALL OTHER DOCUMENTS RELATED TO THIS TRANSACTION.
Section 8.9. Entire Agreement.
This Agreement constitutes the entire agreement among the
parties and supersedes any prior agreement or understanding
among them with respect to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this
Security Agreement as of the date first above written.
COMPANY:
ALFA INTERNATIONAL HOLDINGS CORP.
By: /S/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: President &CEO
SECURED PARTY:
CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
Its: General Partner
By: /s/ Xxxx Xxxxxx
-------------------
Name: Xxxx Xxxxxx
Title: Portfolio Manager
EXHIBIT A
DEFINITION OF PLEDGED PROPERTY
For the purpose of securing prompt and complete payment and
performance by the Company of all of the Obligations, the
Company unconditionally and irrevocably hereby grants to the
Secured Party a continuing security interest in and to, and lien
upon, the following Pledged Property of the Company:
(a) all goods of the Company, including, without
limitation, machinery, equipment, furniture, furnishings,
fixtures, signs, lights, tools, parts, supplies and motor
vehicles of every kind and description, now or hereafter owned
by the Company or in which the Company may have or may hereafter
acquire any interest, and all replacements, additions,
accessions, substitutions and proceeds thereof, arising from the
sale or disposition thereof, and where applicable, the proceeds
of insurance and of any tort claims involving any of the
foregoing;
(b) all inventory of the Company, including, but not
limited to, all goods, wares, merchandise, parts, supplies,
finished products, other tangible personal property, including
such inventory as is temporarily out of Company's custody or
possession and including any returns upon any accounts or other
proceeds, including insurance proceeds, resulting from the sale
or disposition of any of the foregoing;
(c) all contract rights and general intangibles of
the Company, including, without limitation, goodwill,
trademarks, trade styles, trade names, leasehold interests,
partnership or joint venture interests, patents and patent
applications, copyrights, deposit accounts whether now owned or
hereafter created;
(d) all documents, warehouse receipts, instruments
and chattel paper of the Company whether now owned or hereafter
created;
(e) all accounts and other receivables, instruments
or other forms of obligations and rights to payment of the
Company (herein collectively referred to as "Accounts"),
together with the proceeds thereof, all goods represented by
such Accounts and all such goods that may be returned by the
Company's customers, and all proceeds of any insurance thereon,
and all guarantees, securities and liens which the Company may
hold for the payment of any such Accounts including, without
limitation, all rights of stoppage in transit, replevin and
reclamation and as an unpaid vendor and/or lienor, all of which
the Company represents and warrants will be bona fide and
existing obligations of its respective customers, arising out of
the sale of goods by the Company in the ordinary course of
business;
(f) to the extent assignable, all of the Company's
rights under all present and future authorizations, permits,
licenses and franchises issued or granted in connection with the
operations of any of its facilities;
(g) all products and proceeds (including, without
limitation, insurance proceeds) from the above-described Pledged
Property.
