EXHIBIT 4.1
THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS AND
MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, ASSIGNED OR OTHERWISE
DISPOSED OF, AND NO TRANSFER OF THIS PROMISSORY NOTE WILL BE MADE
BY THE COMPANY OR ITS TRANSFER AGENT IN THE ABSENCE OF SUCH
REGISTRATION OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED.
18% SENIOR SECURED PROMISSORY NOTE
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$1,000,000.00
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Chula Vista,
California
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Issue Date: March
20, 2020
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FOR VALUE RECEIVED, Youngevity
International, Inc., a Delaware corporation (the
“Company”), with its principal place of business at
2400 Boswell Road, Chula Vista, California 91914, its successors
and assigns (the “Company”), promises to pay to the
order of Daniel Mangless (“Payee”), having an address at
________________ ___________________________, the principal sum of
One Million Dollars ($1,000,000) on March 20, 2021 (the
“Maturity
Date”), "), together with interest on the principal
amount hereof at the rate of 18% per annum, payable quarterly, on
the last day of each calendar quarter, commencing on March 31,
2020. Payments on both principal and interest are to be made in
lawful money of the United States of America unless Payee agrees to
another form of payment.
1. This Note is
secured by and entitled to the benefit of a first priority lien
granted by the Company’s subsidiary, CLR Roasters, LLC, a
Florida limited liability company (“CLR”), on physical coffee and
related receivables of its coffee division, as set forth in a
Pledge and Security Agreement, dated as of the date hereof, by and
among the Payee, CLR and the Company (the “Pledge Agreement”), to which
Pledge Agreement reference is hereby made for a description of the
collateral accepted as security for this Note, and the nature and
extent of the security and the rights of the Payee.
2. This Note is one of
a series of up to Five Million ($5,000,000) of notes being issued
by and among the Company and certain note investors (the
“Investors”) as
part of a private offering to institutional and accredited
investors. This Note and all obligations hereunder, and the other
Notes issued as part of this series to the Investors and all
obligations thereunder, respectively, shall rank pari passu with each
other.
3. As used herein, a
“Default” means
a material default by the Company of this Note, the Note Purchase
Agreement dated the date hereof between the Company and Payee, or
the Pledge Agreement issued by the Company to Payee on the date
hereof. Amounts not paid when due hereunder shall bear interest
from the due date until such amounts are paid at the rate of
eighteen percent (18%) per annum; provided, however, that in the event such
interest rate would violate any applicable usury law, the default
rate shall be the highest lawful interest rate permitted under such
usury law. Upon the occurrence of a Default and receipt of written
notice by the Company from Payee of such Default, the principal and
interest due hereunder shall be immediately due and payable by the
Company to Payee.
4. Presentment,
demand, protest or notice of any kind are hereby waived by the
Company. The Company may not set off against any amounts due to
Payee hereunder any claims against Payee or other amounts owed by
Payee to the Company.
5. All rights and
remedies of Payee under this Note are cumulative and in addition to
all other rights and remedies available at law or in equity, and
all such rights and remedies may be exercised singly, successively
and/or concurrently. Failure to exercise any right or remedy shall
not be deemed a waiver of such right or remedy.
6. The Company agrees
to pay all reasonable costs of collection, including attorneys'
fees which may be incurred in the collection of this Note or any
portion thereof and, in case an action is instituted for such
purposes, the amount of all attorneys' fees shall be such amount as
the court shall adjudge reasonable.
7. This Note is made
and delivered in, and shall be governed, construed and enforced
under the laws of the State of California.
8. This Note shall be
subject to prepayment, at the option of the Company, in whole or in
part, at any time and from time to time, without premium or
penalty.
9. This Note or any
benefits or obligations hereunder may not be assigned or
transferred by the Company.
YOUNGEVITY
INTERNATIONAL, INC.
By:
/s/David
Briskie
David
Briskie
President
EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT,
dated as of the date of acceptance set forth below, is entered into
by and between Youngevity International, Inc., a Delaware
corporation, with headquarters located at 2400 Boswell Road, Chula
Vista, California 91914 (the “Company”), and the
buyers
identified on the signature pages hereto (including each successors
and assigns, the “Buyer”
or in the aggregate, the “Buyers”).
W I T N E S S E T H:
WHEREAS, the Company and the Buyers are
executing and delivering this Agreement in accordance with and in
reliance upon the exemption from securities registration afforded,
inter alia, by Regulation 506 under
Regulation D (“Regulation D”) as promulgated by the
United States Securities and Exchange Commission (the
“SEC”) under the Securities Act of 1933, as amended
(the “1933 Act”), and/or Section 4(a)(2) of the 1933
Act; and
WHEREAS, the Buyers wish to purchase,
and the Company wishes to sell, upon the terms and conditions
stated in this Agreement, 18% senior secured notes in the aggregate
principal amount of $5,000,000, in the form attached as
Exhibit A hereto
(the “Notes”)
;
WHEREAS, the Notes are collateralized by
certain physical coffee and related receivables of the
Company’s subsidiary, CLR Roasters, LLC, a Florida limited
liability company (“CLR”);
WHEREAS, in order to induce Buyers to
purchase the Notes the Company has agreed to issue to Buyers fifty
thousand (50,000) shares of its common stock, $.001 par value per
share (the “Common Stock”) for each one million dollars
($1,000,000) of Notes purchased.
NOW THEREFORE, in consideration of the
premises and the mutual covenants contained herein and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. AGREEMENT
TO PURCHASE; PURCHASE PRICE. On the date of
execution of this Agreement (the “Initial Closing
Date”), and upon the terms and subject to the conditions set
forth herein, substantially
concurrent with the execution and delivery of this Agreement by the
applicable parties hereto, the Buyers will purchase for such amount
set forth opposite each such Buyer’s name in column (3) of
the Initial Closing Date Schedule of Buyers, severally and not
jointly, an aggregate of One Million Dollars ($1,000,000) in
Principal Amount of Notes. On each subsequent Closing Date, (a
“Subsequent Closing Date, and together with the Initial
Closing date, the “Closing Date”) and upon the terms
and subject to the conditions set forth herein substantially
concurrent with the execution and delivery of this Agreement by the
applicable parties hereto, the Buyers will purchase for such amount
set forth opposite each such Buyer’s name in column (3) of
the Subsequent Closing Date Schedule of Buyers, severally and not
jointly, an aggregate of up to Four Million Dollars ($4,000,000) in
Principal Amount of Notes.
2. In
consideration for each Buyer’s execution and delivery of this
Agreement the Company shall issue to each such Buyer fifty thousand
(50,000) shares of its Common Stock for each One Million Dollars
($1,000,000) of Notes purchased.
3. BUYER
REPRESENTATIONS, WARRANTIES, ETC.; ACCESS TO INFORMATION;
INDEPENDENT INVESTIGATION.
Each
Buyer represents and warrants to, and covenants and agrees with,
the Company as follows:
a. The
Buyer is purchasing the Note and the shares of Common Stock for its
own account for investment only and not with a view towards the
public sale or distribution thereof and not with a view to or for
sale in connection with any distribution thereof;
b. The
Buyer is (i) an “accredited investor” as that term is
defined in Rule 501 of the General Rules and Regulations under the
1933 Act by reason of Rule 501(a)(3), and (ii) experienced in
making investments of the kind described in this Agreement and the
related documents, (iii) able, by reason of the business and
financial experience of its officers (if an entity) and
professional advisors (who are not affiliated with or compensated
in any way by the Company or any of its affiliates or selling
agents), to protect its own interests in connection with the
transactions described in this Agreement, and the related
documents, and (iv) able to afford the entire loss of its
investment in the Note and the Shares;
c. All
subsequent offers and sales of the Note and the shares of Common
Stock by the Buyer shall be made pursuant to registration under the
1933 Act or pursuant to an exemption from
registration;
d. The
Buyer understands that the Note and the shares of Common Stock are
being offered and sold to it in reliance on specific exemptions
from the registration requirements of United States federal and
state securities laws and that the Company is relying upon the
truth and accuracy of, and the Buyer’s compliance with, the
representations, warranties, agreements, acknowledgements and
understandings of the Buyer set forth herein in order to determine
the availability of such exemptions and the eligibility of the
Buyer to acquire the Note and the shares of Common
Stock;
e. The
Buyer and its advisors, if any, have been furnished with all
materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Note
and the shares of Common Stock which have been requested by the
Buyer. The Buyer and its advisors, if any, have been afforded the
opportunity to ask questions of the Company and have received
complete and satisfactory answers to any such inquiries. Without
limiting the generality of the foregoing, the Buyer has also had
the opportunity to obtain and to review the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2018,
Quarterly Reports on Form 10-Q for the quarters ended March 31,
2019, June 30, 2019 and September 30, 2019, and Current Reports on
Form 8-K filed with the SEC on January 7, 2019, January 11, 2019,
January 11, 2019, January 11, 2019, February 12, 2019, February 15,
2019, April 16, 2019, May, 23, 2019, June 27, 2019, August 5, 2019,
August 14, 2019, September 24, 2019, October 1, 2019, October 21,
2019, November 18, 2019, December 19, 2019, December 20, 2019,
January 6, 2020, and February 13, 2020 (the “SEC
Documents”).
f. The
Buyer understands that its investment in the Note and the shares of
Common Stock involves a high degree of risk;
g. The
Buyer understands that no United States federal or state agency or
any other government or governmental agency has passed on or made
any recommendation or endorsement of the shares of Common
Stock;
h. This
Agreement has been duly and validly authorized, executed and
delivered on behalf of the Buyer and is a valid and binding
agreement of the Buyer enforceable in accordance with its terms,
subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium and other similar laws affecting
the enforcement of creditors’ rights generally.
i. The
Buyer is not purchasing the Note or the shares of Common
Stock as a
result of any advertisement, article, notice or other communication
regarding the Note or the shares of Common Stock
published
in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or any other
general solicitation or general advertisement.
4. COMPANY
REPRESENTATIONS, ETC.
The
Company represents and warrants to the Buyer that:
a. Reporting
Company Status. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Delaware, and has the requisite corporate power to own its
properties and to carry on its business as now being conducted. CLR
is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Florida, and has
the requisite corporate power to own its properties and to carry on
its business as now being conducted. The Company is duly qualified
as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or
property owned by it makes such qualification necessary other than
those jurisdictions in which the failure to so qualify would not
have a material and adverse effect on the business, operations,
properties, prospects or condition (financial or otherwise) of the
Company. The Company has registered its Common Stock pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the Common Stock is listed and
traded on the Nasdaq Capital Market.
b. Authorized
Shares. The Notes have been duly authorized and the shares
of Common Stock being sold have been duly authorized are duly and
validly issued, fully paid and non-assessable and will not subject
the holder thereof to personal liability by reason of being such
holder.
c. Transaction
Documents. This Agreement, the Notes, the Security
Agreement, dated even date herewith (the “Security
Agreement”) the transactions contemplated hereby have been
duly and validly authorized by the Company and CLR. This Agreement,
the Note and the Security Agreement have been duly executed and
delivered by the Company and, when executed and delivered by the
Company, will each be, a valid and binding agreement of the Company
enforceable in accordance with their terms, subject as to
enforceability to general principles of equity and to bankruptcy,
insolvency, moratorium, and other similar laws affecting the
enforcement of creditors’ rights generally. The Security
Agreement has been duly executed and delivered by CLR and, when
executed and delivered by CLR, will be a valid and binding
agreement of CLR enforceable in accordance with their terms,
subject as to enforceability to general principles of equity and to
bankruptcy, insolvency, moratorium, and other similar laws
affecting the enforcement of creditors’ rights
generally.
d. Non-contravention.
The execution and delivery of this Agreement by the Company, the
execution and delivery of the Security Agreement by the Company and
CLR, the issuance of the Note and the shares of Common Stock being
sold, and the consummation by the Company and CLR of the other
transactions contemplated by this Agreement, including the granting
of a senior security interest in the collateral pursuant to the
Security Agreement, do not and will not conflict with or result in
a breach by the Company or CLR of any of the terms or provisions
of, or constitute a default under (i) the articles of incorporation
or by-laws of the Company or the certificate of formation or
operating agreement of CLR, (ii) any indenture, mortgage, deed of
trust, or other material agreement or instrument to which the
Company or CLR is a party or by which it or any of its properties
or assets are bound, (iii) to its knowledge, any existing
applicable law, rule, or regulation or any applicable decree,
judgment, or (iv) to its knowledge, order of any court, United
States federal or state regulatory body, administrative agency, or
other governmental body having jurisdiction over the Company, CLR
or any of their properties or assets, except such conflict, breach
or default which would not have a material adverse effect on the
transactions contemplated herein. Neither the Company not CLR is in
violation of any material laws, governmental orders, rules,
regulations or ordinances to which its property, real, personal,
mixed, tangible or intangible, or its businesses related to such
properties, are subject.
e. Approvals.
No authorization, approval or consent of any court, governmental
body, regulatory agency, self-regulatory organization, or stock
exchange or market is required to be obtained by the Company or CLR
for the issuance and sale of the Note and the shares of Common
Stock being sold to the Buyers as contemplated by this Agreement,
and grant of the senior security interest under the Security
Agreement, except such authorizations, approvals and consents that
have been obtained.
f. SEC
Documents, Financial Statements. The Company has filed on a
timely basis all reports, schedules, forms, statements and other
documents required to be filed by it with the SEC pursuant to the
reporting requirements of the Exchange Act, including material
filed pursuant to Section 13(a) or 15(d). The Company has not
provided to the Buyer any information which, according to
applicable law, rule or regulation, should have been disclosed
publicly by the Company but which has not been so disclosed, other
than with respect to the transactions contemplated by this
Agreement.
As of
their respective dates, the SEC Documents complied in all material
respects with the requirements of the Act or the Exchange Act as
the case may be and the rules and regulations of the SEC
promulgated thereunder and other federal, state and local laws,
rules and regulations applicable to such SEC Documents, and none of
the SEC Documents contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents
comply as to form in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes
thereto or (ii) in the case of unaudited interim statements, to the
extent they may not include footnotes or may be condensed or
summary statements) and fairly present in all material respects the
financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end
audit adjustments).
5. CERTAIN
COVENANTS AND ACKNOWLEDGMENTS.
a. Restrictive
Legend. Each Buyer acknowledges and agrees that the Note and
the shares of Common Stock being sold shall bear a restrictive
legend in substantially the following form (and a stop-transfer
order may be placed against transfer thereof) in the absence of an
effective registration statement governing their sale:
[THESE
SHARES][THIS NOTE] [HAVE][HAS] NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR OFFERED FOR SALE, IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT OR AN OPINION OF COUNSEL OR OTHER EVIDENCE
ACCEPTABLE TO THE CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED.]
b. Transfer
Restrictions. The Buyer acknowledges that (1) neither the
shares of Common Stock being sold nor the Note have been registered
under the provisions of the 1933 Act and may not be transferred
unless (A) subsequently registered thereunder, or (B) the Buyer
shall have delivered to the Company an opinion of counsel,
reasonably satisfactory in form, scope and substance to the
Company, to the effect that the shares of Common Stock being sold
or the Note to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration; and (2) any sale
of any shares of Common Stock being sold made in reliance on Rule
144 promulgated under the 1933 Act may be made only in accordance
with the terms of said Rule and further, if said Rule is not
applicable, any resale of the Shares under circumstances in which
the seller, or the person through whom the sale is made, may be
deemed to be an underwriter, as that term is used in the 1933 Act,
may require compliance with some other exemption under the 1933 Act
or the rules and regulations of the SEC thereunder.
c. Filings.
The Company undertakes and agrees to make all necessary filings in
connection with the sale of the Note and the shares of Common Stock
being sold to the Buyer under any United States laws and
regulations, or by any domestic securities exchange or trading
market, and to provide a copy thereof to the Buyer promptly after
such filing.
6. GOVERNING
LAW: MISCELLANEOUS. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware. A
facsimile transmission of this signed Agreement shall be legal and
binding on all parties hereto. This Agreement may be signed in one
or more counterparts, each of which shall be deemed an original.
The headings of this Agreement are for convenience of reference and
shall not form part of, or affect the interpretation of, this
Agreement. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of
the remainder of this Agreement or the validity or enforceability
of this Agreement in any other jurisdiction. This Agreement may be
amended only by an instrument in writing signed by the party to be
charged with enforcement. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect
to the subject matter hereof.
7. NOTICES.
Any notice required or permitted hereunder shall be given in
writing (unless otherwise specified herein) and shall be deemed
effectively given, (i) on the date delivered, (a) by personal
delivery, or (b) if advance copy is given by fax, (ii) seven
business days after deposit in the United States Postal Service by
regular or certified mail, or (iii) three business days mailing by
international express courier, with postage and fees prepaid,
addressed to each of the other parties thereunto entitled at the
following addresses, or at such other addresses as a party may
designate by ten days advance written notice to each of the other
parties hereto.
COMPANY:
Youngevity International, Inc.
2400
Boswell Road
Chula
Vista, California 91914
with a
copy
to:
Gracin & Marlow, LLP
405
Lexington Avenue, 26th Floor
New
York, New York 10174
Attention: Hank
Gracin, Esq.
Facsimile: (212)
208-4657
BUYER: At
the address set forth on the signature page of this
Agreement.
8. SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective
successors and permitted assigns.
IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties set forth below as of the date
set forth below.
YOUNGEVITY
INTERNATIONAL, INC.
By:
______________________________
Name:
David Briskie
Title:
President
Dated:
____________________, 2020
[BUYER SIGNATURE PAGES TO YOUNGEVITY INTERNATIONAL, INC. SECURITIES
PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Securities
Purchase Agreement to be duly executed by their respective
authorized signatories as of the date first indicated
above.
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Signature of Authorized
Signatory of Buyer:
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Name of Authorized
Signatory:
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Title of Authorized
Signatory:
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Email Address of
Authorized Signatory:
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Facsimile Number of
Authorized Signator:
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Address for Notice to Buyer:
Closing Principal
Amount:
$___________
EIN Number: _______________________
SCHEDULE OF PURCHASERS
INITIAL CLOSING DATE
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(1)
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(2)
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(3)
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(4)
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Buyer
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Principal Amount Notes
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Shares of Common Stock
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Closing Date
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Dan
Mangless
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$1,000,000
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50,000
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3/20/20
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SCHEDULE OF PURCHASERS
SUBSEQUENT CLOSING DATE
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(1)
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(2)
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(3)
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(4)
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Buyer
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Principal Amount Notes
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Shares of Common Stock
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Closing Date
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EXHIBIT 10.2
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT (this
“Agreement”), is made as of March [ ], 2020 (the
“Funding Date”) by and among CLR ROASTERS, LLC, a
Florida limited liability company (“Pledgor”),
YOUNGEVITY INTERNATIONAL, INC, a Delaware corporation (the
“Company”); and THE PURCHASERS LISTED ON EXHIBIT A
(individually the "Secured Creditor" and collectively, the
“Secured Creditors”) TO THOSE CERTAIN NOTE PURCHASE
AGREEMENTS, DATED AS OF MARCH [ ], 2020 BETWEEN THE COMPANY AND THE
SECURED CREDITORS (the "Purchase Agreement").
WHEREAS, the Secured Parties have each
entered into a Purchase Agreement with the Company;
WHEREAS, on or after the Funding Date,
the Secured Parties have purchased Notes (the "Notes") in an amount
of up to $5,000,000 from the Company;
WHEREAS, as collateral to secure payment
and performance of the Obligations set forth in the Purchase
Agreement and the Notes, the Company and Pledgor have 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).
NOW, THEREFORE, in consideration of the
premises and the agreements herein and in order to induce the
Secured Creditors to accept the Note, the Pledgor hereby agrees
with the Secured Creditor as follows:
SECTION
1. Definitions. All
terms used in this Agreement which are defined in Article 9 of the
Uniform Commercial Code (the “Code”) currently in
effect in the State of Delaware and which are not otherwise defined
herein shall have the same meanings herein as set forth
therein.
SECTION
2. Pledge and Grant of
Security Interest. (a) As collateral security for all of the
Obligations (as defined in Section 3 hereof), the Pledgor hereby
pledges, assigns and grants to the Secured Creditor a continuing
security interest in all of the property described on Exhibit “B” to this
Agreement (the “Pledged Collateral”); and (ii) all
proceeds of the foregoing.
(b) The
Pledgor hereby represents and warrants to the Secured Creditor as
follows:
(i)
The Pledged
Collateral is not pledged to secure any indebtedness other than the
Notes;
(ii)
The execution,
delivery, and performance of the Pledgor of this Agreement will not
violate any provision of law, any order of any court or other
agency of government, or any agreement or other instrument to which
the Pledgor is a party or by which the Pledgor is bound, or be in
conflict with, result in a breach of or constitute (with due
notice, lapse of time, or both) a default under any such agreement
or other instrument, or result in the creation or imposition of any
lien, charge, or encumbrance of any nature whatsoever upon any of
the property of assets of the Pledgor, except as contemplated by
the provisions of this Agreement;
(iii)
This Agreement
constitutes the legal, valid and binding obligation of the Pledgor
and is enforceable against the Pledgor in accordance with the terms
hereof; and
(iv)
The Pledgor is the
legal and beneficial owner of the Pledged Collateral.
SECTION
3. Security for
Obligations. The security interest created hereby in the
Pledged Collateral constitutes continuing collateral security for
all of the following obligations, whether now existing or hereafter
incurred (the “Obligations”):
(a) the
prompt payment by the Company, as and when due and payable, of all
amounts owing by it in respect of the Notes; and
(b) the
due performance and observance by the Pledgor of all of its other
obligations from time to time existing under this
Agreement.
SECTION
4. Covenants as to the
Pledged Collateral. So long as any of the Obligations shall
remain outstanding, the Pledgor will not create or suffer to exist
any lien, security interest or other charge or encumbrance upon or
with respect to any Pledged Collateral except for the security
interest created hereby.
SECTION
5. Additional Provisions
Concerning the Pledged Collateral. The Pledgor hereby
authorizes the Secured Creditor to file, without the signature of
the Pledgor where permitted by law, one or more financing or
continuation statements, and amendments thereto, relating to the
Pledged Collateral.
SECTION
6. Remedies Upon
Default. If any Event of Default under the Note shall have
occurred and be continuing:
(a) The
Secured Creditors may, exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to them, all of the rights and
remedies of a secured party on default under the Code then in
effect in the State of Delaware, and without limiting the
generality of the foregoing and without notice except as specified
below, sell the Pledged Collateral or any part thereof in one or
more parcels at public or private sale at such price or prices and
on such other terms as the Secured Creditors may deem commercially
reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least five days’ notice to the
Pledgor 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. The Secured Creditors shall not be obligated to make
any sale of Pledged Collateral regardless of notice of sale having
been given. The Secured Creditors may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the
time and place to which it was so adjourned.
(b) All
cash proceeds received by the Secured Creditors in respect of any
sale of, collection from, or other realization upon, all or any
part of the Pledged Collateral shall be applied by the Secured
Creditors against the Obligations. Any surplus of such cash or cash
proceeds held by the Secured Creditor sand remaining after payment
in full of all of the Obligations shall be paid over to the Pledgor
or to such person as may be lawfully entitled to receive such
surplus.
(c) In
the event that the proceeds of any such sale, collection or
realization are insufficient to pay all amounts to which the
Secured Creditors are legally entitled, the Company shall remain
liable for the deficiency and the Secured Creditors shall retain
all rights to collect on such Obligations provided by applicable
law.
SECTION
7. Notices, Etc.
All notices and other communications provided for hereunder shall
be in writing and shall be mailed, faxed or delivered, if to the
Company or Pledgor, to them at the Company’s address set
forth above; and if to the Secured Creditors, to the address set
forth opposite their name on Exhibit A hereto; or as to any
of such parties at such other address as shall be designated by
such parties in a written notice to the other parties hereto
complying as to delivery with the terms of this Section 7. All such
notices and other communications shall be effective (i) if mailed,
when deposited in the mail, (ii) if faxed, when the facsimile
transmission is acknowledged as received, or (iii) if delivered,
upon delivery.
SECTION
8. Miscellaneous.
(a) No
amendment of any provisions of this Agreement shall be effective
unless it is in writing and signed by the Pledgor and the Secured
Creditors, and no waiver of any provision of this Agreement, and no
consent to any departure by the Pledgor, shall be effective unless
it is in writing and signed by the Secured Creditors, and then such
waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(b) No
failure on the part of the Secured Creditors to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Secured Creditors
provided herein are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law.
(c) Any
provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceabilty without
invalidating the remaining portions hereof or thereof or affecting
the validity or enforceability of such provision on any other
jurisdiction.
(d) This
Agreement shall create a continuing security interest in the
Pledged Collateral and shall (i) remain in full force and effect
until the payment in full or release of the Obligations and (ii) be
binding on the Pledgor and its assigns and shall inure, together
with all rights and remedies of the Secured Creditors hereunder, to
the benefit of the Secured Creditors and their heirs, successors
and assigns.
(e) Upon
the satisfaction in full of the Obligations: (i) this Agreement and
the security interest created hereby shall terminate and all rights
to the Pledged Collateral shall revert to the Pledgor, and (ii) the
Secured Creditors will, upon the Pledgor’s request at the
Pledgor’s expense, (A) return to the Pledgor such of the
Pledged Collateral as shall not have been sold or otherwise
disposed of or applied pursuant to the terms hereof and (B) execute
and deliver to the Pledgor such documents as the Pledgor shall
reasonably request to evidence such termination.
(f) This
Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, except as required by mandatory
provisions of law and except to the extent that the validity and
perfection or the perfection and the effect of perfection or
non-perfection of the security interest created hereby, or remedies
hereunder, in respect of any particular Pledged Collateral are
governed by the law of a jurisdiction other than the State of
Delaware. The parties hereto agree that all actions or proceedings
arising in connection with this Agreement shall be tried and
litigated exclusively in the State and Federal courts located in
Delaware. The aforementioned choice of venue is intended by the
parties to be mandatory and not permissive in nature, thereby
precluding the possibility of litigation between the parties with
respect to or arising out of this Agreement in any jurisdiction
other than that specified in this paragraph. Each party hereby
waives any right it may have to assert the doctrine of forum non
conveniens or similar doctrine or to object to venue with respect
to any proceeding brought in accordance with this paragraph, and
stipulates that the State and Federal courts located in Delaware
shall have in personam jurisdiction and venue over each of them for
the purpose of litigating any dispute, controversy, or proceeding
arising out of or related to this Agreement. Each party hereby
authorizes and accepts service of process sufficient for personal
jurisdiction in any action against it as contemplated by this
paragraph by registered or certified mail, return receipt
requested, postage prepaid, to its address for the giving of
notices as set forth in this Agreement. Any final judgment rendered
against a party in any action or proceeding shall be conclusive as
to the subject of such final judgment and may be enforced in other
jurisdictions in any manner provided by law.
IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed and delivered as of the
date first above written.
YOUNGEVITY
INTERNATIONAL INC.
By: __________________________________ Name:
David Briskie
Title:
President
By: __________________________________ Name:
Title:
SECURED
CREDITORS
[NAME
OF INVESTOR]
By: __________________________________ Name:
Title:
EXHIBIT A
LIST OF SECURED CREDITORS
EXHIBIT B
COLLATERAL
All of
CLR’s rights to receive $0.225 per pound of green coffee
shipped by it from Flores Zeldon
Importer and Exporter, LTD under that certain Finance,
Security and AR AP Monetization Agreement, dated ________ 2020 by
and between H&H Coffee Group Export Corp., H&H Export Y
Cia. Ltda and CLR.