EXHIBIT 99.3
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made as of June 7, 2004
by and between Donini, Inc. a New Jersey corporation ("Debtor") and Global
Capital Funding Group, L.P., a Delaware limited partnership ("Secured Party").
1. Definitions.
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(a) Certain Defined Terms. The following terms, as used
herein, have the meanings set forth below:
"Accounts" means all of the following: (a) accounts receivable,
contract rights, book debts, notes, drafts and other obligations and
indebtedness arising from the sale, lease or exchange of goods or other property
and/or the performance of services; (b) rights in, to and under all purchase
orders for goods, services or other property; (c) rights to any goods, services
or other property represented by any of the foregoing (including returned or
repossessed goods and unpaid sellers' rights of rescission, replevin,
reclamation and rights to stoppage in transit); (d) monies due to or to become
due under all contracts for the sale, lease or exchange of goods or other
property and/or the performance of services (whether or not yet earned by
performance); and (e) Proceeds of any of the foregoing and all collateral
security and guaranties of any kind given by any Person with respect to any of
the foregoing.
"Collateral" has the meaning assigned to that term in Section 3.
"Documents" means all "documents" (as defined in the UCC) or other
receipts covering, evidencing or representing goods.
"Equipment" means all "equipment" (as defined in the UCC), including,
without limitation, all machinery, motor vehicles, trucks, trailers, vessels,
aircraft and rolling stock and all parts thereof and all additions and
accessions thereto and replacements therefore.
"Event of Default" has the meaning assigned to that term in Section 9.
"Fixtures" means all plant fixtures, business fixtures, other fixtures
and storage office facilities and all additions and accessions thereto and
replacements therefore.
"General Intangibles" means all "general intangibles" (as defined in
the UCC), including, without limitation: (a) all agreements, leases, licenses
and contracts to which Debtor is or may become a party; (b) all obligations or
indebtedness owing to Debtor (other than Accounts) from whatever source arising;
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(c) all tax refunds; (d) all intellectual property; (e) all choses in action and
causes of action; and (f) all trade secrets and other confidential information
relating to the business of Debtor.
"Instruments" means all "instruments," "chattel paper" or "letters of
credit" (each as defined in the UCC) including, but not limited to, promissory
notes, drafts, bills of exchange and trade acceptances.
"Inventory" means all "inventory" (as defined in the UCC), including,
without limitation, finished goods, raw materials, work in process and other
materials and supplies (including packaging and shipping materials) used or
consumed in the manufacture or production thereof and returned and repossessed
goods.
"Investment Property" means all "investment property" (as defined in
the UCC), including certificated and uncertificated securities, security
entitlements, securities accounts, commodity contracts and commodity accounts
(each as defined in the UCC).
"Note" - means that certain Secured Promissory Note of even date
herewith, in the original principal amount of $1,500,000, made and executed by
Debtor and issued to Secured Party, and all amendments and supplements thereto,
restatements thereof and renewals, extensions, restructuring and
refinancings thereof.
"Person" - means and includes natural persons, corporations, limited
partnerships, general partnerships, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Proceeds" - means all proceeds of, and all other profits, rentals or
receipts, in whatever form, arising from the collection, sale, lease, exchange,
assignment, licensing or other disposition of, or realization upon, any
Collateral including, without limitation, all claims against third parties for
loss of, damage to or destruction of, or for proceeds payable under, or unearned
premiums with respect to, policies of insurance with respect to any Collateral,
and any condemnation or requisition payments with respect to any Collateral, in
each case whether now existing or hereafter arising.
"Secured Obligations" - has the meaning assigned to that term in
Section 4.
"Security Interests" - means the security interests granted pursuant to
Section 3, as well as all other security interests created or assigned as
additional security for the Secured Obligations pursuant to the provisions of
this Agreement.
"Securities Purchase Agreement" - means that certain Securities
Purchase Agreement of even date herewith, by and between Debtor and
Secured Party.
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"UCC" - means the Uniform Commercial Code as in effect on the date
hereof in the State of New Jersey, provided that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of the Security Interest in any Collateral or the availability of any remedy
hereunder is governed by the Uniform Commercial Code as in effect on or after
the date hereof in any other jurisdiction, "UCC" means the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such perfection or effect of perfection or non-perfection or
availability of such remedy.
2. Other Definition Provisions. References to "Sections",
"subsections", "Exhibits" and "Schedules" shall be to Sections, subsections,
Exhibits and Schedules, respectively, of this Agreement unless otherwise
specifically provided. Any of the terms defined in Section 1(a) may, unless the
context otherwise requires, be used in the singular or the plural depending on
the reference. All references to statutes and related regulations shall include
(unless otherwise specifically provided herein) any amendments of same and any
successor statutes and regulations.
3. Grant of Security Interests
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In order to secure the payment and performance of the Secured
Obligations in accordance with the terms thereof, Debtor hereby grants to
Secured Party, a continuing security interest in and to all right, title and
interest of Debtor in the collateral (and any Proceeds therefrom) described on
Exhibit A hereto, whether now owned or existing or hereafter acquired or arising
(all being collectively referred to as the "Collateral").
4. Security for Obligations
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This Agreement secures the payment and performance of the Securities
Purchase Agreement and the Note, and all renewals, extensions, restructuring and
refinancings thereof (the "Secured Obligations").
5. Representations and Warranties. Debtor represents and warrants
as follows:
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(a) Binding Obligation. This Agreement is the legally
valid and binding obligation of Debtor, enforceable against Debtor in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or similar laws or equitable principles relating to
or limiting creditor's rights generally.
(b) Ownership of Collateral. Debtor owns the Collateral
free and clear of any lien, security interest or encumbrance. No effective
financing statement or other form of lien notice covering all or any part of the
Collateral is on file in any recording office.
(c) Office Locations; Debtor Names.
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(i) As of the date hereof, the chief place of
business, the chief executive office and the office
where Debtor keeps its books and records is located
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at the place specified on Schedule 5(d)(i) hereto.
Except as set forth on Schedule 5(d)(i), Debtor has
not maintained any other address at any time during
the five years preceding the date hereof.
(ii) Debtor does not do business nor, as of the
date hereof, has it done business during the past
five years under any corporate name, trade name or
fictitious business name except for Debtor's
corporate name set forth above and except as
disclosed on Schedule 5(d)(ii) hereto.
(d) Perfection. This Agreement, together with the UCC
filings referenced herein, create to secure the Secured Obligations a valid,
perfected and first priority security interest in the Collateral, and all
filings and other actions necessary or desirable to perfect and protect such
security interest have been duly taken.
(e) Governmental Authorizations; Consents. No
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or consent of any other Person is
required either (i) for the grant by Debtor of the Security Interests granted
hereby or for the execution, delivery or performance of this Agreement by Debtor
or (ii) for the perfection of or the exercise by Secured Party of its rights and
remedies hereunder (except as may have been taken by or at the direction of
Debtor or Secured Party) other than the filing of financing statements in
connection with the perfection of the Security Interests.
(f) Accurate Information. All information heretofore,
herein or hereafter supplied to Secured Party by or on behalf of Debtor with
respect to the Collateral is and will be accurate and complete in all
material respects.
6. Further Assurances; Covenants
-----------------------------
(a) Other Documents and Actions. Debtor will, from time
to time, at its expense, promptly execute and deliver all further instruments
and documents and take all further action that may be necessary or desirable, or
that Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable Secured
Party to exercise and enforce its rights and remedies hereunder with respect to
any Collateral. Without limiting the generality of the foregoing, Debtor will:
(i) execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby; (ii)
at any reasonable time, upon demand by Secured Party exhibit the Collateral to
allow inspection of the Collateral by Secured Party or persons designated by
Secured Party; and (iii) upon Secured Party's request, appear in and defend any
action or proceeding that may affect Debtor's title to or Secured Party's
security interest in the Collateral.
(b) Secured Party Authorized. Debtor hereby authorizes
Secured Party to file one or more financing or continuation statements, and
amendments thereto, relating to all or any part of the Collateral without the
signature of Debtor where permitted by law.
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(c) Corporate or Name Change. Debtor will notify Secured
Party promptly in writing at least 30 days prior to (a) any change in Debtor's
name and (b) Debtor's commencing the use of any trade name, assumed name or
fictitious name.
(d) Business Locations. Debtor shall give Secured Party
thirty (30) days' prior written notice of any change in its chief place of
business or of any new location of business or any new location for any of the
Collateral. With respect to any new location (which in any event shall be within
the continental United States), Debtor shall execute such documents and take
such actions as Secured Party reasonably deems necessary to perfect and protect
the Security Interests.
(e) Bailees. No Collateral shall at any time be in the
possession or control of any warehouseman, bailee or Debtor's agents or
processors without Secured Party's prior written consent and unless Secured
Party, if Secured Party has so requested, has received warehouse receipts or
bailee letters reasonably satisfactory to Secured Party prior to the
commencement of such storage. Debtor shall, upon the request of Secured
Party, notify any such warehouseman, bailee, agent or processor of the
Security Interests.
(f) Insurance. Debtor shall maintain insurance with
respect to the Collateral of types and in amounts that are customary for
similarly situated businesses. Debtor hereby directs all insurers under such
policies of insurance with respect to its assets to pay all material proceeds of
such insurance policies to Secured Party.
(g) Taxes and Claims. Debtor will pay (i) all taxes,
assessments and other governmental charges imposed upon the Collateral before
any penalty accrues thereon and (ii) all claims (including claims for labor,
services, materials and supplies) for sums that have become due and payable and
that by law have or may become a lien upon any of the Collateral before any
penalty or fine is incurred with respect thereto; provided that no such tax,
charge or claim need be paid if a Debtor is contesting same in good faith by
appropriate proceedings promptly instituted and diligently conducted and if
Debtor has established such reserve or other appropriate provision, if any, as
shall be required in conformity with generally accepted accounting principles
consistently applied.
(h) Collateral Description. Debtor will 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.
(i) Use of Collateral. Debtor will not use or permit any
Collateral to be used unlawfully or in violation of any provision of this
Agreement or any applicable statue, regulation or ordinance or any policy of
insurance covering any of the Collateral.
(j) Records of Collateral. Debtor shall keep full and
accurate books and records relating to the Collateral and shall stamp or
otherwise xxxx such books and records in such manner as Secured Party may
reasonably request indicating that the Collateral is subject to the
Security Interests.
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(k) Other Information. Debtor will, promptly upon
request, provide to Secured Party all information and evidence it may reasonably
request concerning the Collateral to enable Secured Party to enforce the
provisions of this Agreement.
7. Secured Party Appointed Attorney-in-Fact. Debtor hereby
irrevocably appoints Secured Party as its attorney-in-fact, with full authority
in the place and stead of Debtor and in the name of Debtor, Secured Party or
otherwise, from time to time in Secured Party's discretion to take any action
and to execute any instrument that Secured Party may deem necessary or advisable
after the occurrence and during the continuation of an Event of Default to
accomplish the purposes of this Agreement, including, without limitation:
(a) to obtain and adjust insurance required to be paid to
Secured Party;
(b) to ask, demand, collect, xxx for, recover, compound,
receive and give acquittance and receipts for monies due and to become due under
or in respect of any of the Collateral;
(c) to file any claims or take any action or institute
any proceedings that Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
Secured Party with respect to any of the Collateral;
(d) to pay or discharge taxes or liens, levied or placed
upon or threatened against the Collateral, the legality or validity thereof and
the amounts necessary to discharge the same to be determined by Secured Party in
its sole discretion, and such payments made by Secured Party to become
obligations of Debtor, due and payable immediately without demand and secured by
the Security Interests; and
(e) generally to sell, transfer, pledge, make any
agreement with respect to or otherwise deal with any of the Collateral as fully
and completely as though Secured Party were the absolute owner thereof for all
purposes, and to do, at Secured Party's option and Debtor's expense, at any time
or from time to time, all acts and things that Secured Party deems necessary to
protect, preserve or realize upon the Collateral.
Neither Secured Party nor any Person designated by Secured Party shall be liable
for any acts or omissions or for any error of judgment or mistake of fact or law
other than as a result of Secured Party's or such Person's gross negligence or
willful misconduct. This power, being coupled with an interest, is irrevocable
so long as this Agreement shall remain in force.
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8. Transfers and Other Liens
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Debtor shall not without Secured Party's prior written consent:
(a) Sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of
the Collateral.
(b) Create or suffer to exist any lien, security interest
or other charge or encumbrance upon or with respect to any of the Collateral to
secure indebtedness of any Person except for the security interest created by
this Agreement.
9. Events of Default.
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The occurrence of any one or more of the following events shall
constitute an Event of Default by Debtor under this Agreement:
(a) General Default. Debtor shall fail to observe or
perform any covenant, obligation, term or condition contained in the Securities
Purchase Agreement, the Note, or this Agreement.
(b) Nonpayment. Debtor shall fail to pay any principal,
interest or other amount owing under the Note or Securities Purchase Agreement
when and as the same shall be due and payable.
(c) Material Misrepresentations. Any representation or
warranty set forth herein shall prove to be false in any material respect.
(d) Going Concern. Debtor shall terminate its corporate
existence or shall cease to operate as a going concern.
(e) Judgments. A judgment shall be entered against either
Debtor or a warrant of execution or similar process shall be issued or levied
against its property and within thirty (30) days after such judgment, warrant or
process shall not have been paid in full or proper appeal of the same made.
(f) Debtor Relief - Voluntary. Debtor shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of
the foregoing.
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(g) Debtor Relief - Involuntary. Any involuntary case or
other proceeding shall be commenced against Debtor seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of thirty (30) days; or an order for relief shall be entered against
Debtor under the federal bankruptcy laws as now or hereafter in effect.
(h) Other. The occurrence any "Event of Default" as that
term is defined in Securities Purchase Agreement.
10. Remedies
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(a) If any Event of Default shall have occurred and be
continuing, Secured Party may declare the entire outstanding principal amount of
the Note immediately due and payable, provided that upon the occurrence of any
Event of Default set forth in Section 9(f) or 9(g), the outstanding principal
amount of the Note shall become automatically due and payable, without any
notice, demand or other action on the part of Secured Party.
(b) If any Event of Default shall have occurred and be
continuing, Secured Party may exercise in respect of the Collateral, in addition
to all other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party on default under the UCC
(whether or not the UCC applies to the affected Collateral) and also may: (i)
require Debtor to, and Debtor hereby agrees that it will, at its expense and
upon request of Secured Party forthwith, assemble all or part of the Collateral
as directed by Secured Party and make it available to Secured Party at a place
to be designated by Secured Party which is reasonably convenient to both
parties; (ii) without notice or demand or legal process, enter upon any premises
of Debtor and take possession of the Collateral; (iii) without notice except as
specified below, sell the Collateral or any part thereof in one or more parcels
at public or private sale, at any of Secured Party's offices or elsewhere, at
such time or times, for cash, on credit or for future delivery, and at such
price or prices and upon such other terms as Secured Party may deem commercially
reasonable; (iv) notify the obligors on any Accounts or Instruments to make
payments thereunder directly to Secured Party; and (v) without notice to Debtor,
renew, modify or extend any of the Accounts and Instruments or grant waivers or
indulgences with respect thereto or accept partial payment thereof, or
substitute any obligor thereon, in any manner as Secured Party may deem
advisable, without affecting or diminishing Debtor's continuing obligations
hereunder. Debtor agrees that, to the extent notice of sale shall be required by
law, at least ten days' notice to Debtor of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. At any sale of the Collateral, if permitted by law,
Secured Party may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for the purchase of the Collateral or any portion
thereof for the account of Secured Party. Secured Party shall not be obligated
to make any sale of Collateral regardless of notice of sale having been given.
Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefore, and such sale may, without
further notice, be made at the time and place to which it was so adjourned. To
the extent permitted by law, Debtor hereby specifically waives all rights of
redemption, stay or appraisal which it has or may have under any law now
existing or hereafter enacted.
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(c) Upon the occurrence of an Event of Default hereunder,
Secured Party shall have the right to enter upon the premises of Debtor where
the Collateral is located (or is believed to be located) without any obligation
to pay rent to Debtor, or any other place or places where the Collateral is
believed to be located and kept, to render the Collateral useable or saleable,
to remove the Collateral therefrom to the premises of Secured Party or any agent
of Secured Party for such time as Secured Party may desire in order to
effectively collect or liquidate the Collateral, and/or to require Debtor to
assemble the Collateral and make it available to Secured Party at a place or
places to be designated by Secured Party. Upon the occurrence of an Event of
Default hereunder, Secured Party shall have the right to take possession of
Debtor's original books and records, to obtain access to Debtor's data
processing equipment, computer hardware and software relating to the Collateral
and to use all of the foregoing and the information contained therein in any
manner Secured Party deems appropriate; and Secured Party shall have the right
to notify postal authorities to change the address for delivery of Debtor's mail
to an address designated by Secured Party and to receive, open and dispose of
all mail addressed to Debtor.
11. Limitation on Duty of Secured Party with Respect to
Collateral. Beyond the safe custody thereof, Secured Party shall have no duty
with respect to any Collateral in its possession or control (or in the
possession or control of any agent or bailee) or with respect to any income
thereon or the preservation of rights against prior parties or any other rights
pertaining thereto. Secured Party shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property. Secured Party shall not be liable or responsible for any loss
or damage to any of the Collateral, or for any diminution in the value thereof,
by reason of the act or omission of any warehouseman, carrier, forwarding
agency, consignee or other agent or bailee selected by Secured Party in
good faith.
12. Application of Proceeds. Upon the occurrence and during the
continuance of an Event of Default, the proceeds of any sale of, or other
realization upon, all or any part of the Collateral shall be applied: first, to
all fees, costs and expenses incurred by Secured Party with respect to the
Collateral; and second, to the Secured Obligations. Secured Party shall pay over
to Debtor any surplus and Debtor shall remain liable for any deficiency.
13. Expenses. Debtor agrees to pay all insurance expenses and all
expenses of protecting, storing, warehousing, appraising, insuring, handling,
maintaining and shipping the Collateral, all costs, fees and expenses of
perfecting and maintaining the Security Interests, and any and all excise,
property, sales and use taxes imposed by any state, federal or local authority
on any of the Collateral, or with respect to periodic appraisals and inspections
of the Collateral, or with respect to the sale or other disposition thereof. If
Debtor fails promptly to pay any portion of the above expenses when due or to
perform any other obligation of Debtor under this Agreement, Secured Party may,
at its option, but shall not be required to, pay or perform the same, and Debtor
agrees to reimburse Secured Party therefore on demand. All sums so paid or
incurred by Secured Party for any of the foregoing, any and all other sums for
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which Debtor may become liable hereunder and all costs and expenses (including
attorneys' fees, legal expenses and court costs) incurred by Secured Party in
enforcing or protecting the Security Interests or any of their rights or
remedies under this Agreement shall be payable on demand, shall constitute
Secured Obligations, shall bear interest until paid at the rate provided in the
Note and shall be secured by the Collateral.
14. Termination of Security Interests; Release of Collateral. Upon
payment in full of all Secured Obligations, the Security Interests shall
terminate and all rights to the Collateral shall revert to Debtor. Upon such
termination of the Security Interests or release of any Collateral, Secured
Party will, at the expense of Debtor, execute and deliver to Debtor such
documents as Debtor shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be.
15. Notices. Each notice, communication and delivery under this
Agreement: (a) shall be made in writing signed by the party giving it; (b) shall
specify the section of this Agreement pursuant to which given; (c) shall either
be delivered in person or by telecopier, a nationally recognized next business
day courier service or Express Mail; (d) unless delivered in person, shall be
given to the address specified below; (e) shall be deemed to be given (i) if
delivered in person, on the date delivered, (ii) if sent by telecopier, on the
date of telephonic confirmation of receipt, (iii) if sent by a nationally
recognized next business day courier service with all costs paid, on the next
business day after it is delivered to such courier, or (iv) if sent by Express
Mail (with postage and other fees paid), on the next business day after it is
mailed. Such notice shall not be effective unless copies are provided
contemporaneously as specified below, but neither the manner nor the time of
giving notice to those to whom copies are to be given (which need not be the
same as the addressee) shall control the date notice is given or received. The
addresses and requirements for copies are as follows:
If to Debtor:
Donini, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.
Confirmation No.
Attention: Xx. Xxxxx Xxxxx
If to Secured Party:
Global Capital Funding Group, L.P.
000 Xxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telecopier No.000-000-0000
Confirmation No.000-000-0000
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with a copy to:
Global Capital Advisors, LLC
X.X. Xxx 000
Xxxxxxxxxxxx, XXXX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No. 000-000-0000
16. Waivers, Non-Exclusive Remedies, Severability. Except as
otherwise expressly set forth in any particular provision of this Agreement, any
consent or approval required or permitted by this Agreement to be given by
Secured Party may be given, and any term of this Agreement or of any other
instrument related hereto or mentioned herein may be amended, and the
performance or observance by Debtor of any term of this Agreement, the
Securities Purchase Agreement or the Note may be waived (either generally or in
a particular instance and either retroactively or prospectively) with, but only
with, the written specific consent of Secured Party. No waiver shall extend to
or affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of Secured Party
in exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon Debtor shall entitle Debtor to
other or further notice or demand in similar or other circumstances. The rights
in this Agreement, the Securities Purchase Agreement and the Note are cumulative
and are not exclusive of any other remedies provided by law. The invalidity,
illegality or unenforceability of any provision in or obligation under this
Agreement shall not affect or impair the validity, legality or enforceability of
the remaining provisions or obligations under this Agreement.
17. Successors and Assigns. This Agreement is for the benefit of
Secured Party and its successors and assigns, and in the event of an assignment
of all or any of the Secured Obligations, the rights hereunder, to the extent
applicable to the Secured Obligations so assigned, may be transferred with such
Secured Obligations. This Agreement shall be binding on Debtor and its
successors and assigns, provided that Debtor shall not assign this Agreement
without Secured Party's prior written consent.
18. Changes in Writing. No amendment, modification, termination or
waiver of any provision of this Agreement or consent to any departure by Debtor
therefrom, shall in any event be effective without the written concurrence of
Secured Party and Debtor.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey, without giving
effect to the conflicts of law principles thereof.
20. Headings. Cross reference pages and headings contained herein
are for convenience of reference only, do not constitute a part of this
Agreement, and shall not be deemed to limit or affect any of the
provisions hereof.
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21. Counterparts. This Agreement may be executed by each party
upon a separate copy, and in such case one counterpart of this Agreement shall
consist of enough of such copies to reflect the signatures of all of the
parties. This Agreement may be executed in two or more counterparts, each of
which shall be an original, and each of which shall constitute one and the same
agreement. Any party may deliver an executed copy of this Agreement and of any
documents contemplated hereby by facsimile transmission to another party and
such delivery shall have the same force and effect as any other delivery of a
manually signed copy of this Agreement or of such other documents.
Signature Page Follows
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DULY EXECUTED and delivered by the parties on the date first
written above.
DONINI, INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
GLOBAL CAPITAL FUNDING GROUP, L.P.
By its General Partner, Global Capital
Management Services, Inc.
By: /s/ XXXXX X. XXXXXX
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
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EXHIBIT A
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COLLATERAL
All equipment, accounts, general intangibles, inventory, and other
fixed assets of the Company, whether owned as of this date of hereafter acquired
and any proceeds thereof.
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SCHEDULE 5(d)(i)
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SCHEDULE 5.2(d)(ii)
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