SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "Agreement") is made and entered into
effective as of October 4, 2000 by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, an
individual residing at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or his assigns
(the "Secured Party"), and Universal Beverages Holdings Corporation, a Florida
corporation (the "Debtor").
WHEREAS, the Secured Party has extended certain credit to the Debtor,
which is to be repaid with interest in accordance with the terms of a Secured
Promissory Note of even date herewith executed by the Debtor in favor of the
Secured Party and in the original principal amount of One Hundred Fifty Thousand
Dollars ($150,000) (the "Note");
WHEREAS, in order to induce the Secured Party to extend the credit to
the Debtor referred to above, and to secure the payment of the Note, the Debtor
enters into this Agreement providing for, among other things, a security
interest in favor of the Secured Party in the Collateral (as such term is
defined below);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereby agree as follows:
Section 1. Grant of Security Interest. As security for the payment of
the indebtedness of the Debtor to the Secured Party evidenced by the Note and
for the payment and/or performance of all other obligations of the Debtor under
the Note (collectively, the "Obligations"), the Debtor hereby grants, pledges
and assigns to the Secured Party, and creates in favor of the Secured Party, a
security interest subordinate only to (i) liens indicated on Schedule 1 attached
hereto and (ii) statutory liens in all of the Debtor's right, title and interest
in and to the Collateral.
Section 2. References to the Debtor and Definitions. All capitalized
terms not otherwise defined herein shall have the meanings set forth below:
"Collateral" shall mean all of the Debtor's right, title and interest
in and to the cash accounts, accounts receivable and equipment described on the
attached Exhibit A.
"Event of Default" or "Default" shall include the occurrence of any of
the following if not cured or abated within applicable grace or cure periods:
(a) default under the Note;
(b) to the best of the Debtor's knowledge, any representation,
warranty, or statement made or furnished to the Secured Party by or on
behalf of the Debtor in connection with this Agreement shall be untrue
or misleading in any material respect as of the date when made or
furnished, or any covenant of the Debtor under this Agreement shall be
breached; or
1
(c) the dissolution or termination of existence of the Debtor
except where caused by rule on annual or similar report with the
Secretary of State or similar authority where the Debtor is domiciled;
or the insolvency or business failure of the Debtor, or the admission
by the Debtor in writing of any inability to pay the Debtor's debts as
they become due; or the appointment of a receiver or trustee for all or
any part of the property of the Debtor unless vacated within 10 days,
or an assignment by the Debtor of all or a substantial portion of its
assets for the benefit of the Debtor's creditors; or the commencement
of any proceeding under any insolvency laws against the Debtor if such
proceeding is not dismissed within a period of 30 days after
commencement.
(d) the failure to pay to the Secured Party when due, any
extension fee as described under the Note or any transaction fee as
described under Section 3(e) below.
"Uniform Commerical Code" and "applicable Uniform Commercial Code,"
shall mean the Florida Uniform Commercial Code, except in the case of remedies
of the Secured Party, in which case it shall include the Uniform Commercial Code
under which such remedies arise or which governs the exercise of such remedies.
Section 3. Representations, Warranties and Covenants of the Debtor. The
Debtor represents, warrants and covenants that:
(a) The Debtor's Title. Except as provided on Schedule 1 and
immaterial statutory liens, the Debtor is, as to all of the Collateral,
the owner of the Collateral, which is free from any lien, security
interest, or encumbrance, and the Debtor shall defend the Collateral
and proceeds and products thereof against any and all claims and
demands adverse to the interests of the Secured Party.
(b) Filing of Financing Statements and Preservation of
Perfected Security Interests. The Debtor hereby authorizes the Secured
Party, to file in such office or offices as the Secured Party deems
necessary or desirable such financing and continuation statements and
amendments thereof or supplements thereto, and such other documents as
the Secured Party may from time to time require to perfect, preserve
and protect the security interest granted herein. The Debtor shall
immediately notify the Secured Party in writing of any change of
address from that shown in this Agreement and shall also, upon demand,
furnish to the Secured Party such further information and shall execute
and deliver to the Secured Party such financing statements and other
documents and shall pay any and all filing fees and costs with respect
thereto and shall do all such acts as the Secured Party may at any time
or from time reasonably request to establish and maintain perfected
security interests in the Collateral.
(c) Taxes and Assessments. The Debtor shall promptly pay, as
they become due and payable, any taxes and
assessments imposed upon the Collateral.
(d) Authority or Signer to Execute Security Agreement. The
undersigned representative of the Debtor warrants that he has the
authority to enter into and bind the Debtor to the terms of this
Agreement.
2
(e) Transaction Fee. In consideration of Secured Party's
extension of credit to the Debtor, ▇▇▇▇▇ shall pay Secured Party at the
address indicated on Page 1 or such other addresses or places as he
shall from time direct, a transaction fee in the amount of Thirty Five
Thousand Dollars ($35,000), payable in four equal monthly installments
of Eight Thousand Seven Hundred Fifty Dollars ($8,750) commencing
October 4, 2000.
(f) Collateral Installed or Placed Into Service. The
Collateral will not be installed or placed into service until the Note
shall have been paid in full.
(g) Warrant. Simultaneous with the execution of the Note and
this Agreement, Debtor will execute and deliver to the Secured Party, a
warrant to purchase 100,000 shares of ▇▇▇▇▇'▇ common stock,
substantially in the form of Exhibit B attached hereto.
Section 4. Remedies Upon Default. Upon the occurrence of any Event of
Default and at any time thereafter the Secured Party may, at its option, declare
the Note immediately due and payable without demand or notice, and the Secured
Party may reduce the Note to judgment, and in addition may seek judicial
foreclosure of its security interest in the Collateral or, if applicable, assert
its secured position with respect to the Collateral in any bankruptcy,
receivership, or similar proceeding with respect to the Debtor or the Debtor's
assets.
Section 5. Governing Law. This Agreement shall be interpreted in
accordance with Florida law, including all matters of construction, validity,
performance and enforcement, without giving effect to any principles of conflict
of laws. This Agreement may not be changed, modified, amended or terminated
orally.
Section 6. Assignment. Except as otherwise provided herein, the Secured
Party may not assign or transfer this Agreement and any or all rights or
obligations hereunder without prior written consent of the Debtor.
Section 7. Benefit. Except as provided herein, the rights and
privileges of the parties under this Agreement shall inure to the benefit of
their successors and assigns. All promises, covenants and agreements contained
in this Agreement shall be binding upon the personal representatives, heirs,
successors and assigns of the parties.
Section 8. Notices. All notices, offers, acceptance and any other acts
under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
3
The Debtor: Universal Beverages Holdings Corporation
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ Tops Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Secured Party: ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as either of them, by notice to the other may designate
from time to time. Time shall be counted to, or from, as the case may be, the
date of delivery.
Section 9. Severability. If a court of competent jurisdiction makes a
final determination that any provision of this Agreement (or any portion
thereof) is invalid, illegal or unenforceable for any reason whatsoever: (i) the
validity, legality and enforceability of the remaining provisions of this
Agreement shall not in any way be affected or impaired thereby; and (ii) to the
fullest extent possible, the provisions of this Agreement shall be construed so
as to give effect to the intent manifested by the provision held invalid,
illegal or unenforceable.
Section 10. Non-Waiver. The failure of the Secured Party to insist upon
strict performance of any provision hereof shall not constitute a waiver of, or
estoppel against asserting, the right to require such performance in the future,
nor shall it be a waiver or estoppel with respect to later breach of a similar
nature or otherwise.
Section 11. Entire Agreement. The terms and conditions of this Security
Agreement set forth the entire understanding and agreement between the parties
hereto, and supersede all other communications negotiations and prior oral or
written statements regarding the subject matter hereof no change, modification,
rescission, discharge, abandonment or waiver of the terms of this Security
Agreement shall be binding upon the Secured Party unless made in writing and
signed on its behalf by an authorized representatives of the Secured Party.
4
Section 12. Miscellaneous. The headings and subheadings herein are for
the convenience of the parties only, and shall not affect the construction or
interpretation of any of the provisions of this Security Agreement. This
Security Agreement may be executed in one or more counterparts, each of which
shall for all purposes be deemed to be an original but all of which together
shall constitute one and the same Security Agreement. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Security Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be executed by their respective duly authorized representatives
effective as of the date first written above.
Universal Beverages Holdings Corporation
("Debtor")
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ---------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Secured Party")
5
SCHEDULE 1
OUTSTANDING LIENS
See Attached
6
EXHIBIT A
---------
1. All of Debtor's now existing or hereafter arising or acquired Accounts,
accounts receivable, rights to payment and other contract rights,
however created, including without limitation any right to payment for
goods sold or leased or for services rendered, whether arising out of
the sale of Inventory or otherwise and whether or not it has been
earned by performance, and any and all notes, drafts, acceptances,
chattel paper, General Intangibles and other obligations arising out of
or representing any such right ("Accounts Receivable");
2. Accounts, including without limitation, all of Debtor's Accounts
Receivable, chattel paper, contract rights, letters of credit,
instruments and documents ("Accounts"), and all goods whose sale, lease
or other disposition by Debtor has given rise to Accounts and have been
returned to or repossessed or stopped in transit by Debtor;
3. Monies, reserves, deposits, deposit accounts and interest or dividends
thereon, securities, cash, cash equivalents and other property now or
at any time or times hereafter in the possession or under the control
of Secured Party or its bailee;
4. Liens, guarantees and other rights and privileges pertaining to any of
the foregoing;
5. All accessions, substitutions, renewals, improvements and replacements
of and additions to the foregoing; and
6. The equipment described as a Model ▇▇▇▇/50/2 Dual Lane Multipacker,
proposal #0079-00M/Vegal/0 of OCME America Corporation dated June 15,
2000, and subject of Purchaser Order Requisition ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇ issued by Debtor dated 6/2/00.
7
EXHIBIT B
---------
(Form of Warrant)