================================================================================
LOAN AND SECURITY AGREEMENT
================================================================================
CENTURY BUSINESS CREDIT CORPORATION
and
ALABASTER INDUSTRIES, INC.
================================================================================
Dated: September 20, 1996
================================================================================
Table of Contents
1. (a) General Definitions............................................... 1
(b) Accounting Terms.................................................. 8
(c) Other Terms....................................................... 8
2. Revolving Credit Advances and Demand Loan............................... 8
3. Repayment of the Revolving Credit Advances and Demand
Loan.................................................................... 9
4. Procedure for Revolving Credit Advances................................. 10
5. Interest and Fees....................................................... 10
(a) Interest.......................................................... 10
(b) Fees.............................................................. 11
(i) Minimum Loan Fee.......................................... 11
(ii) Closing Fee............................................... 11
(iii) Collateral Monitoring Fee................................. 11
(iv) Minimum Default Loan Fee.................................. 11
(v) Overadvance Fee........................................... 11
(vi) Financial Information Default............................. 12
6. Security Interest....................................................... 12
7. Representations Concerning the Collateral............................... 12
8. Covenants Concerning the Collateral..................................... 13
9. Collection and Maintenance of Collateral and Records.................... 14
10. Inspections............................................................. 15
11. Financial Information................................................... 15
12. Additional Representations, Warranties and Covenants.................... 16
13. Power of Attorney....................................................... 21
14. Expenses................................................................ 22
15. Assignment By Lender.................................................... 22
16. Waivers................................................................. 23
17. Term of Agreement....................................................... 23
18. Events of Default....................................................... 24
19. Remedies................................................................ 26
-i-
20. Waiver; Cumulative Remedies............................................. 27
21. Application of Payments................................................. 27
22. Depository Accounts..................................................... 27
23. Lock Box Accounts....................................................... 28
24. Revival................................................................. 28
25. Notices................................................................. 28
26. Governing Law and Waiver of Jury Trial.................................. 29
27. Limitation of Liability................................................. 29
28. Entire Understanding.................................................... 29
29. Severability............................................................ 30
30. Captions................................................................ 30
31. Counterparts............................................................ 30
32. Construction............................................................ 30
33. Publicity............................................................... 30
-ii-
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement is made as of September __, 1996 by
and between CENTURY BUSINESS CREDIT CORPORATION ("Lender"), having executive
offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and Alabaster
Industries, Inc. ("Borrower"), having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, the Borrower has requested that Lender make loans and
advances available to Borrower; and
WHEREAS, Lender has agreed to make such loans and advances to
Borrower on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings and the terms and conditions contained herein, the parties hereto
agree as follows:
1. (a) General Definitions. When used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of any Person means (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with such Person, or (b) any Person who is a director
or officer (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of
any Person described in clause (a) above. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, (i) to vote five
percent (5.0%) or more of the securities having ordinary voting power for the
election of directors of such Person, or (ii) to direct or cause the direction
of the management and policies of such Person whether by contract or otherwise.
"Amortizing Availability" means $400,000 less $8,333.33 per month
commencing October 1, 1996 and on the first day of each month thereafter,
subject to adjustment as provided in paragraph 8(h) of this Agreement.
"Ancillary Agreements" means all agreements, instruments, and
documents including, without limitation, notes, mortgages, pledges, powers of
attorney, consents, assignments, contracts, notices, security agreements, trust
agreements whether heretofore, concurrently, or hereafter executed by or on
behalf of Borrower or delivered to Lender, relating to this Agreement or to the
transactions contemplated by this Agreement.
"Authority" shall have the meaning set forth in paragraph
12(e)(iii).
"Closing Date" means September __, 1996 or such other date as may be
agreed upon by the parties hereto.
"Collateral" means and includes:
(A) all Inventory;
(B) all Equipment;
(C) all General Intangibles;
(D) all Receivables;
(E) all books, records, ledgercards, files, correspondence,
computer programs, tapes, disks and related data processing software (owned by
Borrower or in which it has an interest) which at any time evidence or contain
information relating to (A), (B), (C) and (D) above or are otherwise necessary
or helpful in the collection thereof or realization thereupon;
(F) documents of title, policies and certificates of
insurance, securities, chattel paper, other documents or instruments evidencing
or pertaining to (A), (B), (C), (D) and (E) above;
(G) all guaranties, liens on real or personal property,
leases, and other agreements and property which in any way secure or relate to
(A), (B), (C), (D), (E) and (F) above, or are acquired for the purpose of
securing and enforcing any item thereof;
(H) (i) all cash held as cash collateral to the extent not
otherwise constituting Collateral, all other cash or property at any time on
deposit with or held by Lender for the account of Borrower (whether for
safekeeping, custody, pledge, transmission or otherwise), (ii) all present or
future deposit accounts (whether time or demand or interest or non-interest
bearing) of Borrower with Lender or any other Person including those to which
any such cash may at any time and from time to time be credited, (iii) all
investments and reinvestments (however evidenced) of amounts from time to time
credited to such accounts, and (iv) all interest, dividends, distributions and
other proceeds payable on or with respect to (x) such investments and
reinvestments and (y) such accounts; and
(I) all products and proceeds of (A), (B), (C), (D), (E), (F),
(G) and (H) above (including, but not limited to, all claims to items referred
to in (A), (B), (C), (D), (E), (F), (G) and (H) above) and all claims of
Borrower against third parties (x) for (i) loss of, damage to, or destruction
of, and (ii) payments due or to become due under leases, rentals and hires of
any or all of (A), (B), (C), (D), (E), (F), (G) and (H) above and (y) proceeds
payable under, or unearned premiums with respect to policies of insurance in
whatever form.
-2-
"Contract Rate" means an interest rate per annum equal to the
greater of (A) nine percent (9.0%) or (B) the (i) Prime Rate plus (ii) three and
one-quarter percent (3.25%).
"Customer" means and includes the account debtor with respect to any
of the Receivables and/or prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into or
proposes to enter into any contract or other arrangement with the Borrower,
pursuant to which the Borrower is to deliver any personal property or perform
any services.
"Default Rate" means a rate equal to three percent (3.0%) per annum
in excess of the Contract Rate.
"Demand Loan" means the demand loan made by Lender to Borrower
pursuant to paragraph 2(d).
"Demand Loan Amount" means $600,000.
"Eligible Inventory" means Inventory which the Lender, in its sole
and absolute discretion, determines: (a) is subject to the security interest of
Lender and is subject to no other liens or encumbrances whatsoever (other than
Permitted Liens); (b) is in good condition and meets all standards imposed by
any governmental agency, or department or division thereof having regulatory
authority over such Inventory, its use or sale including but not limited to the
Federal Fair Labor Standards Act of 1938 as amended, and all rules, regulations
and orders thereunder; (c) is currently either usable or salable in the normal
course of Borrower's business; and (d) not to be ineligible for any other
reason.
"Eligible Receivables" means and includes each Receivable which
conforms to the following criteria: (a) shipment of the merchandise or the
rendition of services has been completed; (b) no return, rejection or
repossession of the merchandise has occurred; (c) merchandise or services shall
not have been rejected or disputed by the Customer and there shall not have been
asserted any offset, defense or counterclaim; (d) continues to be in full
conformity with the representations and warranties made by the Borrower to the
Lender with respect thereto; (e) Lender is, and continues to be, satisfied with
the credit standing of the Customer in relation to the amount of credit
extended; (f) there are no facts existing or threatened which are likely to
result in any adverse change in a Customer's financial condition; (g) is
documented by an invoice in a form approved by Lender and shall not be unpaid
more than ninety days from invoice date; (h) less than thirty-three percent
(33%) of the unpaid amount of invoices due from such Customer remain unpaid more
than ninety days from invoice date; (i) is not evidenced by chattel paper or an
instrument of any kind with respect to or in payment of the Receivable unless
such instrument is duly endorsed to and in possession of the Lender or
represents a check in payment of a Receivable; (j) if the Customer
-3-
is located outside of the United States, the goods which gave rise to such
Receivable were shipped after receipt by the Borrower from or on behalf of the
Customer of an irrevocable letter of credit, assigned and delivered to the
Lender and confirmed by a financial institution acceptable to the Lender and is
in form and substance acceptable to the Lender, payable in the full amount of
the Receivable in United States dollars at a place of payment located within the
United States; (k) such Receivable is not subject to any lien, other than
Permitted Liens; (l) does not arise out of transactions with any employee,
officer, agent, director, stockholder or Affiliate of the Borrower; (m) is
payable to the Borrower; (n) does not arise out of a ▇▇▇▇ and hold sale prior to
shipment and, if the Receivable arises out of a sale to any Person to which the
Borrower is indebted, the amount of such indebtedness, and any anticipated
indebtedness, is deducted in determining the face amount of such Receivable; (o)
is net of any returns, discounts, claims, credits and allowances; (p) if the
Receivable arises out of contracts between the Borrower and the United States,
any state, or any department, agency or instrumentality of any of them, Borrower
has so notified Lender, in writing, prior to the creation of such Receivable,
and, if Lender so requests, there has been compliance with any governmental
notice or approval requirements, including without limitation, compliance with
the Federal Assignment of Claims Act; (q) is a good and valid account
representing an undisputed bona fide indebtedness incurred by the Customer
therein named, for a fixed sum as set forth in the invoice relating thereto with
respect to an unconditional sale and delivery upon the stated terms of goods
sold by the Borrower, or work, labor and/or services rendered by the Borrower;
(r) the total unpaid Receivables from such Customer does not exceed twenty
percent (20%) of all Eligible Receivables except with respect to Receivables due
from Walmart which Receivables shall not exceed twenty-five percent (25%) of all
Eligible Receivables; (s) does not arise out of progress ▇▇▇▇▇▇▇▇ prior to
completion of the order; and (t) is otherwise satisfactory to the Lender as
determined in good faith by the Lender in the reasonable exercise of its
discretion.
"Environmental Complaint" shall have the meaning set forth in
paragraph 12(e)(iii).
"Equipment" means and includes all of Borrower's now owned or
hereafter acquired equipment, machinery and goods (excluding Inventory), whether
or not constituting fixtures, including, without limitation: plant and office
equipment, tools, dies, molds, parts, data processing equipment, furniture and
trade fixtures, trucks, trailers, loaders and other vehicles and all
replacements and substitutions therefore and all accessions thereto.
"ERISA" shall have the meaning set forth in paragraph 12(f).
-4-
"Event of Default" shall mean the occurrence of any of the events
set forth in paragraph 18.
"Formula Amount" shall have the meaning set forth in paragraph 2(a).
"GAAP" means generally accepted accounting principles, practices and
procedures in effect from time to time.
"General Intangibles" means and includes all of Borrower's now owned
or hereafter acquired general intangibles including, without limitation,
trademarks, tradenames, tradestyles, trade secrets, equipment formulation,
manufacturing procedures, quality control procedures, product specifications,
patents, patent applications, copyrights, registrations, contract rights, choses
in action, causes of action, corporate or other business records, inventions,
designs, goodwill, claims under guarantees, licenses, franchises, tax refunds,
tax refund claims, computer programs, computer data bases, computer program flow
diagrams, source codes, object codes and all other intangible property of every
kind and nature.
"Guarantor" means Vista and any other Person which may hereafter
guarantee payment or performance of the whole or any part of the Obligations and
"Guarantors" means collectively all such Persons.
"Guaranty Agreements" means the Guaranty Agreements which are
executed by each Guarantor in favor of Lender.
"Hazardous Discharge" shall have the meaning set forth in paragraph
12(e)(iii).
"Incipient Event of Default" means any act or event which, with the
giving of notice or passage of time or both, would constitute an Event of
Default.
"Inventory" means and includes all of Borrower's now owned or
hereafter acquired goods, merchandise and other personal property, wherever
located, to be furnished under any contract of service or held for sale or
lease, all raw materials, work in process, finished goods and materials and
supplies of any kind, nature or description which are or might be used or
consumed in Borrower's business or used in selling or furnishing such goods,
merchandise and other personal property, and all documents of title or other
documents representing them.
"Inventory Availability" means the amount of Revolving Credit
Advances against Eligible Inventory Lender may from time to time during the Term
make available to Borrower up to the lesser of (a) $400,000 or (b) up to fifty
percent (50%) of the value of Borrower's Eligible Inventory (calculated on the
basis of the lower
-5-
of cost or market, on a first-in first-out basis) or (c) up to 50% of the sum of
Receivables Availability.
"Letters of Credit" means all letters of credit or guarantees opened
or caused to be opened by Lender for Borrower's account and any drafts and
acceptances thereunder.
"Loans" means the Revolving Credit Advances, the Demand Loan and all
extensions of credit hereunder or under any Ancillary Agreement, including,
without limitation, Letters of Credit.
"Maximum Revolving Amount" means $2,500,000 minus the outstanding
principal amount of the Demand Loan.
"Minimum Average Monthly Loan Amount" means $750,000.
"Minimum Default Average Monthly Loan Amount" means $500,000.
"Obligations" means and includes all Loans, all advances, debts,
liabilities, obligations, covenants and duties owing by Borrower to Lender (or
any corporation that directly or indirectly controls or is controlled by or is
under common control with Lender) of every kind and description (whether or not
evidenced by any note or other instrument and whether or not for the payment of
money or the performance or non-performance of any act), direct or indirect,
absolute or contingent, due or to become due, contractual or tortious,
liquidated or unliquidated, whether existing by operation of law or otherwise
now existing or hereafter arising including, without limitation, any debt,
liability or obligation owing from Borrower to others which Lender may have
obtained by assignment or otherwise and further including, without limitation,
all interest, charges or any other payments Borrower is required to make by law
or otherwise arising under or as a result of this Agreement and the Ancillary
Agreements, together with all reasonable expenses and reasonable attorneys' fees
chargeable to Borrower's account or incurred by Lender in connection with
Borrower's account whether provided for herein or in any Ancillary Agreement.
"Overadvances" shall have the meaning set forth in paragraph
5(b)(v).
"Permitted Liens" means (i) liens of carriers, warehousemen,
mechanics and materialmen incurred in the ordinary course of business securing
sums not overdue; (ii) liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, relating to employees, securing sums (a) not
overdue or (b) being diligently contested in good faith provided that adequate
reserves with respect thereto are maintained on the books of Borrower in
conformity with GAAP, (iii) liens in favor of Lender, (iv) liens for taxes (a)
not yet due or (b) being
-6-
diligently contested in good faith, provided that adequate reserves with respect
thereto are maintained on the books of Borrower in conformity with GAAP
provided, that, the lien shall have no effect on the priority of liens in favor
of Lender or the value of the assets in which Lender has a lien and (v) liens
specified on Exhibit 1(A) hereto.
"Permitted Mortgage Financing" means indebtedness of at least
$250,000 incurred by Borrower secured by a mortgage lien on Borrower's real
property and improvements thereon located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ provided, that (i) the mortgage only encumbers such real property and
not the Collateral; (ii) at such time as an Event of Default shall have occurred
and be continuing, the proceeds of such mortgage loan are received by Borrower
and remitted to Lender for application to the Loans; and (iii) Lender receives a
mortgagee waiver in form and substance satisfactory to Lender from the holder of
such mortgage lien.
"Person" means an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prime Rate" means the prime commercial lending rate of Chase
Manhattan Bank, N.A. as publicly announced in New York, New York to be in effect
from time to time as its "prime" or "base" rate of interest and is neither tied
to any external rate of interest or index nor does it necessarily reflect the
lowest rate of interest actually charged to any particular class or category of
customers. Such rate shall be increased or decreased as the case may be for each
increase or decrease in said rate in an amount equal to such increase or
decrease in said rate; each change to be effective as of the day of the change
in such rate.
"Receivables" means and includes all of Borrower's now owned or
hereafter acquired accounts and contract rights, instruments, insurance
proceeds, documents, chattel paper, letters of credit and Borrower's rights to
receive payment thereunder, any and all rights to the payment or receipt of
money or other forms of consideration of any kind at any time now or hereafter
owing or to be owing to Borrower, all proceeds thereof and all files in which
Borrower has any interest whatsoever containing information identifying or
pertaining to any of Borrower's Receivables, together with all of Borrower's
rights to any merchandise which is represented thereby, and all Borrower's
right, title, security and guaranties with respect to each Receivable,
including, without limitation, all rights of stoppage in transit, replevin and
reclamation and all rights as an unpaid vendor.
"Receivables Availability" means the amount of Revolving Credit
Advances against Eligible Receivables Lender may from time to time during the
term of this Agreement make available to Borrower up to eighty percent (80%) of
the net face amount of Borrower's Eligible Receivables.
-7-
"Revolving Credit Advances" shall have the meaning set forth in
paragraph 2(a).
"Subsidiary" of any Person means a corporation or other entity whose
shares of stock or other ownership interests having ordinary voting power (other
than stock or other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the directors of such
corporation, or other Persons performing similar functions for such entity, are
owned, directly or indirectly, by such Person.
"Term" means the Closing Date through September __, 1998 subject to
acceleration upon the occurrence of an Event of Default hereunder or other
termination hereunder.
"UCC" shall mean the Uniform Commercial Code as adopted in the State
of New York as in effect from time to time.
"Validity Guarantor" means ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Street and any
other Persons who may hereafter guarantee the validity of the Receivables and
Inventory of Borrower and "Validity Guarantors" means collectively all such
Persons.
"Validity Guaranty Agreements" shall mean the Guaranty of Validity
Agreements which are executed by each Validity Guarantor in favor of Lender.
"Vista" means Vista 2000, Inc., a Delaware corporation.
"Vista Security Agreement" means the Security Agreement dated
July 31, 1995 between Borrower and Vista.
"Vista Subordinated Debt" means the indebtedness of Borrower to
Vista as evidenced by the Vista Subordinated Note.
"Vista Subordinated Mortgage" means the Mortgage, Security Agreement
and Assignment of Rents and Leases dated August 8, 1995 executed by Borrower in
favor of Vista.
"Vista Subordinated Note" means the promissory note dated July 31,
1995 in the original principal amount of $4,800,000 executed by Borrower in
favor of Vista.
"Vista Subordination Agreement" means the Subordination and
Intercreditor Agreement dated as of the Closing Date among Lender, Vista and
Borrower.
(b) Accounting Terms. Any accounting terms used in this Agreement
which are not specifically defined shall have the meanings customarily given
them in accordance with GAAP.
-8-
(c) Other Terms. All other terms used in this Agreement and defined
in the UCC, shall have the meaning given therein unless otherwise defined
herein.
2. Revolving Credit Advances and Demand Loan.
(a) Subject to the terms and conditions set forth herein and in the
Ancillary Agreements, Lender may, in its sole discretion, make revolving credit
advances (the "Revolving Credit Advances") to Borrower from time to time during
the term of this Agreement which, in the aggregate at any time outstanding, will
not exceed the lesser of (x) the Maximum Revolving Amount or (y) an amount equal
to the sum of:
(i) Receivables Availability, plus
(ii) Inventory Availability, plus
(iii) Amortizing Availability, minus
(iv) such reserves as Lender may reasonably deem proper and
necessary from time to time, including, without limitation, the outstanding face
amount of Letters of Credit.
The sum of 2(a)(i), plus (ii), plus (iii), minus (iv) shall be referred to
as the "Formula Amount".
(b) Notwithstanding the limitations set forth above, Lender retains
the right to lend Borrower from time to time such amounts in excess of such
limitations as Lender may determine in its sole discretion.
(c) Borrower acknowledges that the exercise of Lender's
discretionary rights hereunder may result during the term of this Agreement in
one or more increases or decreases in the advance percentages used in
determining Receivables Availability and Inventory Availability and in
Amortizing Availability and Borrower hereby consents to any such increases or
decreases which may limit or restrict advances requested by Borrower.
(d) Subject to the terms and conditions set forth herein and in the
Ancillary Agreements, Lender may, in its sole discretion, make a demand loan to
Borrower in the Demand Loan Amount. The Demand Loan shall be payable upon the
earlier of demand by Lender or the last day of the Term.
(e) If Borrower does not pay any interest, fees, costs or charges to
Lender when due, Borrower shall thereby be deemed to have requested, and Lender
is hereby authorized at its discretion to make and charge to Borrower's account,
a Revolving Credit Advance to Borrower as of such date in an amount equal to
such unpaid interest, fees, costs or charges.
-9-
(f) Any sums expended by Lender due to Borrower's failure to perform
or comply with its obligations under this Agreement, including but not limited
to the payment of taxes, insurance premiums or leasehold obligations, shall be
charged to Borrower's account as a Revolving Credit Advance and added to the
Obligations.
(g) Lender will account to Borrower monthly with a statement of all
Revolving Credit Advances and other advances, charges and payments made pursuant
to this Agreement, and such account rendered by Lender shall be deemed final,
binding and conclusive unless Lender is notified by Borrower in writing to the
contrary within thirty (30) days of the date each account was rendered
specifying the item or items to which objection is made.
(h) During the Term hereof, Borrower may borrow, prepay and reborrow
Revolving Credit Advances, all in accordance with the terms and conditions
hereof.
3. Repayment of the Revolving Credit Advances and Demand Loan.
Borrower shall be required to (a) make a mandatory prepayment hereunder at any
time that the aggregate outstanding principal balance of the Revolving Credit
Advances made by Lender to Borrower hereunder is in excess of the lessor of
Formula Amount or the Maximum Revolving Amount in an amount equal to such
excess, and (b) repay on the expiration of the Term (i) the then aggregate
outstanding principal balance of Revolving Credit Advances and the Demand Loan
made by Lender to Borrower hereunder together with accrued and unpaid interest,
fees and charges and (ii) all other amounts owed Lender under this Agreement and
the Ancillary Agreements. Any payments of principal, interest, fees or any other
amounts payable hereunder or under any Ancillary Agreement shall be made prior
to 12:00 noon New York time on the due date thereof in immediately available
funds.
4. Procedure for Revolving Credit Advances. The Borrower may by
written or telephonic notice request a borrowing of Revolving Credit Advances
prior to 11:00 A.M. New York time on the business day of its request to incur,
on that day, a Revolving Credit Advance. All Revolving Credit Advances shall be
disbursed from whichever office or other place Lender may designate from time to
time and, together with any and all other Obligations of Borrower to Lender,
shall be charged to the Borrower's account on Lender's books. The proceeds of
each Revolving Credit Advance made by the Lender shall be made available to the
Borrower on the day so requested by way of credit to the Borrower's operating
account maintained with such bank as Borrower designated to Lender. Any and all
Obligations due and owing hereunder may be charged to Borrower's account and
shall constitute Revolving Credit Advances.
5. Interest and Fees.
(a) Interest.
-10-
(i) Except as modified by paragraphs 5(a)(iii) and 5(b)(iv)
below, Borrower shall pay interest on the unpaid principal balance of the Loans
for each day they are outstanding at the Contract Rate.
(ii) Interest shall be (a) computed on the basis of actual
days elapsed over a 360-day year, (b) calculated by Lender on a daily basis and
billed to Borrower monthly and (c) payable in arrears on the last day of each
month, or, at Lender's option, Lender may charge Borrower's account for said
interest.
(iii) Upon the occurrence and during the continuance of an
Event of Default, interest shall be payable at the Default Rate; provided that
other than with respect to an Event of Default arising as a result of an
Overadvance or as a result of the occurrence of an event described in paragraph
18(k) as to which no notice shall be required, Lender shall provide Borrower
notice of the occurrence of such Event of Default and shall not commence
charging the Default Rate for a period of two (2) days following the date of
such notice.
(iv) Notwithstanding the foregoing, in no event shall interest
exceed the maximum rate permitted under any applicable law or regulation, and if
any provision of this Agreement or an Ancillary Agreement is in contravention of
any such law or regulation, such provision shall be deemed amended to provide
for interest at said maximum rate and any excess amount shall either be applied,
at Lender's option, to the outstanding Loans in such order as Lender shall
determine or refunded by Lender to Borrower.
(v) Borrower shall pay principal, interest and all other
amounts payable hereunder, or under any Ancillary Agreement, without any
deduction whatsoever, including, but not limited to, any deduction for any
set-off or counterclaim.
(b) Fees.
(i) Minimum Loan Fee. In the event the average closing daily
unpaid balances of all Loans hereunder during any calendar month is less than
the Minimum Average Monthly Loan Amount, Borrower shall pay to Lender a minimum
loan fee at a rate per annum equal to the Contract Rate on the amount by which
the Minimum Average Monthly Loan Amount exceeds such average closing daily
unpaid balances. Such fee shall be calculated on the basis of a year of 360 days
and actual days elapsed and such fee shall be charged to Borrower's account on
the first day of each month with respect to the prior month.
(ii) Closing Fee. Upon execution of this Agreement by Borrower
and Lender, Borrower shall pay to Lender a closing fee in an amount equal to
$43,750 which shall be deemed earned by Lender on the Closing Date and shall be
payable $31,250
-11-
on the Closing Date and $12,500 on the earlier of the first anniversary of the
Closing Date or earlier termination of this Agreement.
(iii) Collateral Monitoring Fee. Upon Lender's performance of
any collateral monitoring and/or verification including, without limitation, any
field examination, collateral analysis or other business analysis, the need for
which is to be determined by Lender and which monitoring is undertaken by Lender
or for Lender's benefit, an amount equal to $600 per day, per person, for each
person employed to perform such monitoring together with all costs,
disbursements and expenses incurred by the Lender and the person performing such
collateral monitoring and/or verification shall be charged to Borrower's
account.
(iv) Minimum Default Loan Fee. In the event that following the
occurrence of an Event of Default the average closing daily unpaid balance of
all Loans hereunder during any calendar month is less than the Minimum Default
Average Monthly Loan Amount, Borrower shall pay to Lender in lieu of interest
charges provided for in Section 5(a) and the fees provided for in Sections
5(b)(i) and 5(b)(iii), a fee equal to two percent (2.0%) per month on the unpaid
principal balance of the Loans. Such fee shall be computed on the basis of a
year of 360 days and actual days elapsed and such fee shall be charged to
Borrower's account on the first day of each month with respect to the prior
month.
(v) Overadvance Fee. Without affecting Borrower's obligation
to immediately repay any Loans which exceed the amounts permitted by paragraph 2
of this Agreement ("Overadvances"), in the event an Overadvance occurs or is
made by Lender, Borrower shall pay interest on the unpaid balance of the Loans
at the Default Rate for as long as such Overadvance remains outstanding and
shall pay Lender a fee in the amount of $250.00 for each month or part thereof
that an Overadvance exists. Such fee shall be charged to Borrower's account upon
the occurrence of each Overadvance.
(vi) Financial Information Default. Without affecting Lender's
other rights and remedies, in the event Borrower fails to deliver the financial
information required by paragraphs 9 and 11 on the date required by this
Agreement, Borrower shall pay Lender a fee in the amount of $100.00 for each
such failure. Such fee shall be charged to Borrower's account upon the
occurrence of each such failure.
6. Security Interest.
(a) To secure the prompt payment to Lender of the Obligations,
Borrower hereby assigns, pledges and grants to Lender a continuing security
interest in and to the Collateral, whether now owned or existing or hereafter
acquired or arising and wheresoever located, whether or not the same is subject
to Article
-12-
9 of the UCC. All of the Borrower's ledger sheets, files, records, books of
account, business papers and documents relating to the Collateral shall, until
delivered to or removed by Lender, be kept by Borrower in trust for Lender until
all Obligations have been paid in full. Each confirmatory assignment schedule or
other form of assignment hereafter executed by Borrower shall be deemed to
include the foregoing grant, whether or not the same appears therein.
(b) Lender may file one or more financing statements disclosing
Lender's security interest in the Collateral without Borrower's signature
appearing thereon or Lender may sign on Borrower's behalf as provided in
paragraph 13 hereof. The parties agree that a carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement. If
any Receivable becomes evidenced by a promissory note or any other instrument
for the payment of money, Borrower will immediately deliver such instrument to
Lender appropriately endorsed.
7. Representations Concerning the Collateral. Borrower represents
and warrants (each of which such representations and warranties shall be deemed
repeated upon the making of each request for a Loan and made as of the time of
each and every Loan hereunder):
(a) all the Collateral (i) is owned by Borrower free and clear of
all claims, liens, security interests and encumbrances (including without
limitation any claims of infringement) except (A) those in Lender's favor and
(B) Permitted Liens and (ii) is not subject to any agreement prohibiting the
granting of a security interest or requiring notice of or consent to the
granting of a security interest; and
(b) all Receivables (i) represent complete bona fide transactions
which require no further act under any circumstances on Borrower's part to make
such Receivables payable by the Customers, (ii) to the best of Borrower's
knowledge, are not subject to any present, future or contingent offsets or
counterclaims, and (iii) do not represent ▇▇▇▇ and hold sales, consignment
sales, guaranteed sales, sale or return or other similar understandings or
obligations of any Affiliate or Subsidiary of Borrower.
8. Covenants Concerning the Collateral. During the Term, Borrower
covenants that it shall:
(a) not dispose of any of the Collateral whether by sale, lease or
otherwise except for (i) the sale of Inventory in the ordinary course of
business, and (ii) the disposition or transfer in the ordinary course of
business during any fiscal year of obsolete and worn-out Equipment having an
aggregate fair market value of not more than $10,000 and only to the extent that
(x) the proceeds of any such disposition are used to acquire replacement
-13-
Equipment which is subject to Lender's first priority security interest or (y)
the proceeds of which are remitted to Lender in reduction of the Obligations;
(b) not encumber, mortgage, pledge, assign or grant any security
interest in any Collateral or any of Borrower's other assets to anyone other
than Lender and except for Permitted Liens;
(c) place notations upon Borrower's books of account and any
financial statement prepared by Borrower to disclose Lender's security interest
in the Collateral;
(d) keep and maintain the Equipment in good operating condition,
except for ordinary wear and tear, and shall make all necessary repairs and
replacements thereof so that the value and operating efficiency shall at all
times be maintained and preserved. Borrower shall not permit any such items to
become a fixture to real estate or accessions to other personal property;
(e) not extend the payment terms of any Receivable without prompt
notice thereof to Lender;
(f) perform all other steps requested by Lender to create and
maintain in Lender's favor a valid perfected first security interest in all
Collateral (except for Permitted Liens);
(g) defend the Collateral against the claims and demands of all
parties; and
(h) cause, at least annually, an appraisal to be performed by an
appraiser satisfactory to Lender, of its Equipment and Lender shall have the
right in its sole discretion based on such appraisal to decrease the amount of
Amortizing Availability to a sum not greater than seventy percent (70%) of the
knockdown liquidation value of the Equipment which is acceptable to Lender in
its sole discretion and on which Lender has a first perfected security interest,
amortizable at a rate to be determined by Lender. In the event Borrower desires
that Lender increase the Amortizing Availability, Borrower shall deliver to
Lender within sixty (60) days of the Closing Date, a Knockdown liquidation value
appraisal of its Equipment performed by an Appraiser satisfactory to Lender and
Lender may in its sole discretion based on such appraisal increase the
Amortizing Availability to a sum not greater than seventy percent (70%) of the
Knockdown liquidation value of the Equipment which is acceptable to Lender in
its sole discretion and on which Lender has a first perfected security interest,
amortizable at a rate equal to 1/48 of the original principal amount of such
Amortizing Availability.
9. Collection and Maintenance of Collateral and Records.
-14-
Lender may at any time verify Borrower's Receivables utilizing an
audit control company or any other agent of Lender. Lender or Lender's designee
may notify customers or account debtors, at any time at Lender's sole
discretion, of Lender's security interest in Receivables, collect them directly
and charge the collection costs and expenses to Borrower's account, but, unless
and until Lender does so or gives Borrower other instructions, Borrower shall
collect all Receivables for Lender, receive all payments thereon for Lender's
benefit in trust as Lender's trustee and immediately deliver them to Lender in
their original form with all necessary endorsements or, as directed by Lender,
deposit such payments as directed by Lender pursuant to paragraphs 22 or 23
hereof. Lender will credit (conditional upon final collection) all such payments
to Borrower's account five (5) business days after receipt by Lender of good
funds in dollars of the United States of America in Lender's account. Any amount
received by Lender after 12:00 noon New York time on any business day shall be
deemed received on the next business day. Promptly after the creation of any
Receivables, Borrower shall provide Lender with schedules describing all
Receivables created or acquired by Borrower and shall execute and deliver
confirmatory written assignments of such Receivables to Lender, but Borrower's
failure to execute and deliver such schedules or written confirmatory
assignments of such Receivables shall not affect or limit Lender's security
interest or other rights in and to the Receivables. Borrower shall furnish, at
Lender's request, copies of contracts, invoices or the equivalent, and any
original shipping and delivery receipts for all merchandise sold or services
rendered and such other documents and information as Lender may require.
Borrower shall also provide Lender on a monthly (within ten (10) days after the
end of each month) or more frequent basis, as requested by Lender, a detailed or
aged trial balance of all of Borrower's existing Receivables specifying the
names and balances due for each account debtor and such other information
pertaining to the Receivables as Lender may request. Borrower shall provide
Lender on a monthly (within ten (10) days after the end of each month), or more
frequent basis, as requested by Lender, a summary report of Borrower's current
Inventory, certified as true and accurate by Borrower's President or Chief
Financial Officer, as well as an aged trial balance of Borrower's existing
accounts payable. Borrower shall provide Lender, as requested by Lender, such
other schedules, documents and/or information regarding the Collateral as Lender
may require.
10. Inspections. At all times during normal business hours, Lender
shall have the right to (a) visit and inspect Borrower's properties and the
Collateral, (b) inspect, audit and make extracts from Borrower's relevant books
and records, including, but not limited to, management letters prepared by
independent accountants, and (c) discuss with Borrower's principal officers, and
independent accountants, Borrower's business, assets, liabilities, financial
condition, results of operations and business prospects. Borrower will deliver
to Lender any instrument
-15-
necessary for Lender to obtain records from any service bureau maintaining
records for Borrower.
11. Financial Information. Borrower shall provide Lender (a) as soon
as available, but in any event within ninety (90) days after the end of each of
Borrower's fiscal years, the balance sheet of Vista and its Subsidiaries on a
Consolidated Basis together with consolidating schedules as at the end of such
fiscal year and the related statements of income, retained earnings and changes
in cash flow of Vista and its Subsidiaries on a Consolidated basis together with
consolidating schedules for such fiscal year, setting forth in comparative form
the figures as at the end of and for the previous fiscal year, which shall have
been reported on by independent certified public accountants who shall be
satisfactory to Lender and shall be accompanied by an audit report issued by
such independent certified public accountants which report with respect to
Borrower shall be unqualified; (b) as soon as available, drafts of Borrower's
balance sheet as at the end of each of Borrower's fiscal years and the related
statements of income, retained earnings and changes in cash flow for such fiscal
year, which have been internally prepared by Borrower; (c) as soon as available,
but in any event within thirty (30) days after the close of each month, the
balance sheet as at the end of such month and the related statements of income,
retained earnings and changes in cash flow for such month, which have been
internally prepared by Borrower. All financial statements required under (a),
(b) and (c) above shall be prepared in accordance with GAAP, subject to year-end
adjustments in the case of monthly statements. Together with the financial
statements furnished pursuant to (a) above, Borrower shall deliver a certificate
of Borrower's certified public accountants addressed to Lender stating that (i)
they have caused this Agreement and the Ancillary Agreements to be reviewed and
(ii) in making the examination necessary for the issuance of such financial
statements, nothing has come to their attention to lead them to believe that any
Event of Default or Incipient Event of Default exists and, in particular, they
have no knowledge of any Event of Default or Incipient Event of Default or, if
such is not the case, specifying such Event of Default or Incipient Event of
Default and its nature, when it occurred and whether it is continuing. At the
times the financial statements are furnished pursuant to (a), (b) and (c) above,
a certificate of Borrower's President or Chief Financial Officer shall be
delivered to Lender stating that, based on an examination sufficient to enable
him to make an informed statement, no Event of Default or Incipient Event of
Default exists, or, if such is not the case, specifying such Event of Default or
Incipient Event of Default and its nature, when it occurred, whether it is
continuing and the steps being taken by Borrower with respect to such event. If
any internally prepared financial information, including that required under
this paragraph is unsatisfactory in any manner to Lender, Lender may request
that Borrower's independent certified public accountants review same.
-16-
12. Additional Representations, Warranties and Covenants. Borrower
represents, warrants (each of which such representations and warranties shall be
deemed repeated upon the making of a request for a Loan and made as of the time
of each Loan made hereunder), and covenants that:
(a) Borrower is a corporation duly organized and validly existing
under the laws of the State of Delaware and duly qualified and in good standing
in every other state or jurisdiction in which the nature of Borrower's business
requires such qualification;
(b) the execution, delivery and performance of this Agreement and
the Ancillary Agreements (i) have been duly authorized, (ii) are not in
contravention of Borrower's certificate of incorporation, by-laws or of any
indenture, agreement or undertaking to which Borrower is a party or by which
Borrower is bound and (iii) are within Borrower's corporate powers;
(c) this Agreement and the Ancillary Agreements executed and
delivered by Borrower are Borrower's legal, valid and binding obligations,
enforceable in accordance with their terms;
(d) it keeps and will continue to keep all of its books and records
concerning the Collateral at Borrower's executive offices located at the address
set forth in the introductory paragraph of this Agreement and will not move such
books and records without giving Lender at least thirty (30) days prior written
notice;
(e) (i) the operation of Borrower's business is and will continue to
be in compliance in all material respects with all applicable federal, state and
local laws, including but not limited to all applicable environmental laws and
regulations;
(ii) Borrower will establish and maintain a system to assure
and monitor continued compliance with all applicable environmental laws, which
system shall include periodic reviews of such compliance;
(iii) In the event the Borrower obtains, gives or receives
notice of any release or threat of release of a reportable quantity of any
hazardous substances on its property (any such event being hereinafter referred
to as a "Hazardous Discharge") or receives any notice of violation, request for
information or notification that it is potentially responsible for investigation
or cleanup of environmental conditions on its property, demand letter or
complaint, order, citation, or other written notice with regard to any Hazardous
Discharge or violation of any environmental laws affecting its property or
Borrower's interest therein (any of the foregoing is referred to herein as an
"Environmental Complaint") from any Person or entity, including any state agency
responsible in whole or in part for environmental matters in the state in which
such property is located or the United States
-17-
Environmental Protection Agency (any such person or entity hereinafter the
"Authority"), then the Borrower shall, within seven (7) days, give written
notice of same to the Lender detailing facts and circumstances of which the
Borrower is aware giving rise to the Hazardous Discharge or Environmental
Complaint and periodically inform Lender of the status of the matter. Such
information is to be provided to allow the Lender to protect its security
interest in the Collateral and is not intended to create nor shall it create any
obligation upon the Lender with respect thereto;
(iv) Borrower shall respond promptly to any Hazardous
Discharge or Environmental Complaint and take all necessary action in order to
safeguard the health of any Person and to avoid subjecting the Collateral to any
lien. If Borrower shall fail to respond promptly to any Hazardous Discharge or
Environmental Complaint or Borrower shall fail to comply with any of the
requirements of any environmental laws, the Lender may, but without the
obligation to do so, for the sole purpose of protecting the Lender's interest in
Collateral: (A) give such notices or (B) enter onto Borrower's property (or
authorize third parties to enter onto such property) and take such actions as
the Lender (or such third parties as directed by the Lender) deems reasonably
necessary or advisable, to clean up, remove, mitigate or otherwise deal with any
such Hazardous Discharge or Environmental Complaint. All reasonable costs and
expenses incurred by the Lender (or such third parties) in the exercise of any
such rights, including any sums paid in connection with any judicial or
administrative investigation or proceedings, fines and penalties, together with
interest thereon from the date expended at the Default Rate for Revolving Credit
Advances shall be paid upon demand by the Borrower, and until paid shall be
added to and become a part of the Obligations secured by the liens created by
the terms of this Agreement or any other agreement between Lender and Borrower;
(v) Borrower shall defend and indemnify the Lender and hold
the Lender harmless from and against all loss, liability, damage and expense,
claims, costs, fines and penalties, including attorney's fees, suffered or
incurred by the Lender under or on account of any environmental laws, including,
without limitation, the assertion of any lien thereunder, with respect to any
Hazardous Discharge, the presence of any hazardous substances affecting
Borrower's property, whether or not the same originates or emerges from
Borrower's property or any contiguous real estate, including any loss of value
of the Collateral as a result of the foregoing except to the extent such loss,
liability, damage and expense is attributable to any Hazardous Discharge
resulting from actions on the part of the Lender. The Borrower's obligations
under this paragraph 12(e) shall arise upon the discovery of the presence of any
hazardous substances on the Borrower's property, whether or not any federal,
state, or local environmental agency has taken or threatened any action in
connection with the presence of any hazardous substances. The Borrower's
obligation and the
-18-
indemnifications hereunder shall survive the termination of this Agreement;
(vi) For purposes of paragraph 12(e) all references to
Borrower's property shall be deemed to include all of Borrower's right, title
and interest in and to all owned and/or leased premises.
(f) based upon the Employee Retirement Income Security Act of 1974
("ERISA"), and the regulations and published interpretations thereunder: (i)
Borrower has not engaged in any Prohibited Transactions as defined in paragraph
406 of ERISA and paragraph 4975 of the Internal Revenue Code, as amended; (ii)
Borrower has met all applicable minimum funding requirements under paragraph 302
of ERISA in respect of its plans; (iii) Borrower has no knowledge of any event
or occurrence which would cause the Pension Benefit Guaranty Corporation to
institute proceedings under Title IV of ERISA to terminate any employee benefit
plan(s); (iv) Borrower has no fiduciary responsibility for investments with
respect to any plan existing for the benefit of persons other than Borrower's
employees; and (v) Borrower has not withdrawn, completely or partially, from any
multi-employer pension plan so as to incur liability under the Multiemployer
Pension Plan Amendments Act of 1980;
(g) it is solvent, able to pay its debts as they mature, has capital
sufficient to carry on its business and all businesses in which it is about to
engage and the fair saleable value of its assets (calculated on a going concern
basis) is in excess of the amount of its liabilities;
(h) there is no pending or threatened litigation, actions or
proceeding which involve the possibility of materially and adversely affecting
the Borrower's business, assets, operations, prospects or condition (financial
or otherwise), or the Collateral or the ability of Borrower to perform this
Agreement;
(i) all balance sheets and income statements which have been
delivered to Lender fairly, accurately and properly state Borrower's financial
condition on a basis consistent with that of previous financial statements and
there has been no material adverse change in Borrower's financial condition as
reflected in such statements since the date thereof and such statements do not
fail to disclose any fact or facts which might materially and adversely affect
Borrower's financial condition;
(j) (x) it possesses all of the licenses, patents, copyrights,
trademarks and tradenames necessary to conduct its business, (y) there has been
no assertion or claim of violation or infringement with respect thereof and (z)
all such licenses, patents, copyrights, trademarks and tradenames are listed on
Exhibit 12(j);
-19-
(k) it will pay or discharge when due all taxes, assessments and
governmental charges or levies imposed upon it;
(l) it will promptly inform Lender in writing of: (i) the
commencement of all proceedings and investigations by or before and/or the
receipt of any notices from, any governmental or nongovernmental body and all
actions and proceedings in any court or before any arbitrator against or in any
way concerning any of Borrower's properties, assets or business, which might
singly or in the aggregate, have a materially adverse effect on Borrower; (ii)
any amendment of Borrower's certificate of incorporation or by-laws; (iii) any
change in Borrower's business, assets, liabilities, condition (financial or
otherwise), results of operations or business prospects which has had or might
have a materially adverse effect on Borrower; (iv) any Event of Default or
Incipient Event of Default; (v) any default or any event which with the passage
of time or giving of notice or both would constitute a default under any
agreement for the payment of money to which Borrower is a party or by which
Borrower or any of Borrower's properties may be bound which would have a
material adverse effect on Borrower's business, assets, operations, prospects or
condition (financial or otherwise) or the Collateral; (vi) any change in the
location of Borrower's executive offices; (vii) any change in the location of
Borrower's Inventory or Equipment from the locations listed on Exhibit 12(l)
attached hereto, (viii) any change in Borrower's corporate name; (ix) any
material delay in Borrower's performance of any of its obligations to any
account debtor and of any assertion of any material claims, offsets or
counterclaims by any account debtor and of any allowances, credits and/or other
monies granted by it to any account debtor; (x) and furnish to Lender all
material adverse information relating to the financial condition of any account
debtor; and (xi) any material return of goods;
(m) it will not (i) create, incur, assume or suffer to exist any
indebtedness (exclusive of trade debt) whether secured or unsecured other than
Borrower's indebtedness to Lender and as set forth on Exhibit 12(m) attached
hereto and made a part hereof; (ii) declare, pay or make any dividend or
distribution on any shares of the common stock or preferred stock of Borrower or
apply any of its funds, property or assets to the purchase, redemption or other
retirement of any common or preferred stock of Borrower; (iii) directly or
indirectly, prepay any indebtedness (other than to Lender), or repurchase,
redeem, retire or otherwise acquire any indebtedness of Borrower; (iv) make
advances, loans or extensions of credit to any Person; (v) become either
directly or contingently liable upon the obligations of any Person by
assumption, endorsement or guaranty thereof or otherwise; (vi) enter into any
merger, consolidation or other reorganization with or into any other Person or
acquire all or a portion of the assets or stock of any Person or permit any
other Person to consolidate with or merge with it; (vii) form any Subsidiary or
enter into any partnership, joint venture or similar arrangement; (viii)
materially change the nature of the business in which it is presently engaged;
(ix)
-20-
change its fiscal year or make any changes in accounting treatment and reporting
practices without prior written notice to Lender except as required by GAAP or
in the tax reporting treatment or except as required by law; (x) enter into any
transaction with any Affiliate, except in ordinary course on arms-length terms;
(xi) ▇▇▇▇ Receivables under any name except the present name of the Borrower or
(xii) directly or indirectly redeem, repurchase, retire or otherwise acquire or
make any payment or distribution with respect to the Vista Subordinated Debt,
except that provided no Incipient Event of Default or Event of Default shall
have occurred and be continuing prior to and after giving effect to such
payment, Borrower may make payments with respect to the Vista Subordinated Debt
if (x) the aggregate amount of such payments do not exceed $500,000 and such
payments are made between the Closing Date and December 31, 1996 (the "Period");
(y) such payment is after the Period and is permitted by the terms of Vista
Subordination Agreement; and (z) such payment is made with the proceeds of a
Permitted Mortgage Financing.
(n) all financial projections of Borrower's performance prepared by
Borrower or at Borrower's direction and delivered to Lender will represent, at
the time of delivery to Lender, Borrower's best estimate of Borrower's future
financial performance and will be based upon assumptions which are reasonable in
light of Borrower's past performance and then current business conditions;
(o) it will not make capital expenditures in any fiscal year an
amount in excess of $50,000;
(p) none of the proceeds of the Loans hereunder will be used
directly or indirectly to "purchase" or "carry" "margin stock" or to repay
indebtedness incurred to "purchase" or "carry" "margin stock" within the
respective meanings of each of the quoted terms under Regulation G of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect; and
(q) it will bear the full risk of loss from any loss of any nature
whatsoever with respect to the Collateral. At it's own cost and expense in
amounts and with carriers acceptable to Lender, it shall (i) keep all its
insurable properties and properties in which it has an interest insured against
the hazards of fire, flood, sprinkler leakage, those hazards covered by extended
coverage insurance and such other hazards, and for such amounts, as is customary
in the case of companies engaged in businesses similar to Borrower's including,
without limitation, business interruption insurance; (ii) maintain a bond in
such amounts as is customary in the case of companies engaged in businesses
similar to Borrower's insuring against larceny, embezzlement or other criminal
misappropriation of insured's officers and employees who may either singly or
jointly with others at any time have access to the assets or funds of Borrower
either directly or through authority to draw upon such funds or to direct
generally the disposition of such assets; (iii) maintain public and product
liability insurance
-21-
against claims for personal injury, death or property damage suffered by others;
(iv) maintain all such worker's compensation or similar insurance as may be
required under the laws of any state or jurisdiction in which Borrower is
engaged in business; (v) furnish Lender with (x) copies of all policies and
evidence of the maintenance of such policies at least thirty (30) days before
any expiration date, (y) endorsements to such policies naming Lender as
"co-insured" or "additional insured" and appropriate loss payable endorsements
in form and substance satisfactory to Lender, naming Lender as loss payee, and
(z) evidence that as to Lender the insurance coverage shall not be impaired or
invalidated by any act or neglect of Borrower and the insurer will provide
Lender with at least thirty (30) days notice prior to cancellation. Borrower
shall instruct the insurance carriers that in the event of any loss thereunder,
the carriers shall make payment for such loss to lender and not to Borrower and
Lender jointly. If any insurance losses are paid by check, draft or other
instrument payable to Borrower and Lender jointly, Lender may endorse Borrower's
name thereon and do such other things as Lender may deem advisable to reduce the
same to cash. Lender is hereby authorized to adjust and compromise claims. All
loss recoveries received by Lender upon any such insurance may be applied to the
Obligations, in such order as Lender in its sole discretion shall determine. Any
surplus shall be paid by Lender to Borrower or applied as may be otherwise
required by law. Any deficiency thereon shall be paid by Borrower to Lender, on
demand.
13. Power of Attorney. Borrower hereby appoints Lender or any other
Person whom Lender may designate as Borrower's attorney, with power to: (i)
endorse Borrower's name on any checks, notes, acceptances, money orders, drafts
or other forms of payment or security that may come into Lender's possession;
(ii) sign Borrower's name on any invoice or ▇▇▇▇ of lading relating to any
Receivables, drafts against customers, schedules and assignments of Receivables,
notices of assignment, financing statements and other public records,
verifications of account and notices to or from customers; (iii) verify the
validity, amount or any other matter relating to any Receivable by mail,
telephone, telegraph or otherwise with account debtors; (iv) execute customs
declarations and such other documents as may be required to clear Inventory
through Customs; (v) do all things necessary to carry out this Agreement, any
Ancillary Agreement and all related documents; and (vi) on or after the
occurrence and continuation of an Event of Default, notify the post office
authorities to change the address for delivery of Borrower's mail to an address
designated by Lender, and to receive, open and dispose of all mail addressed to
Borrower. Borrower hereby ratifies and approves all acts of the attorney.
Neither Lender nor the attorney will be liable for any acts or omissions or for
any error of judgment or mistake of fact or law. This power, being coupled with
an interest, is irrevocable so long as any Receivable which is assigned to
Lender or in which Lender has a security interest remains unpaid and until the
Obligations have been fully satisfied.
-22-
14. Expenses. Borrower shall pay all of Lender's out-of-pocket costs
and expenses, including, without limitation, reasonable fees and disbursements
of counsel and appraisers, in connection with the preparation, execution and
delivery of this Agreement and the Ancillary Agreements, and in connection with
the prosecution or defense of any action, contest, dispute, suit or proceeding
concerning any matter in any way arising out of, related to or connected with
this Agreement or any Ancillary Agreement. Borrower shall also pay all of
Lender's fees, charges, out-of-pocket costs and expenses, including without
limitation reasonable fees and disbursements of counsel and appraisers, in
connection with (a) the preparation, execution and delivery of any waiver, any
amendment thereto or consent proposed or executed in connection with the
transactions contemplated by this Agreement or the Ancillary Agreements, (b)
Lender's obtaining performance of the Obligations under this Agreement and any
Ancillary Agreements, including, but not limited to, the enforcement or defense
of Lender's security interests, assignments of rights and liens hereunder as
valid perfected security interests, (c) any attempt to inspect, verify, protect,
collect, sell, liquidate or otherwise dispose of any Collateral, (d) any
appraisals or re-appraisals of any property (real or personal) pledged to Lender
by Borrower as Collateral for, or any other Person as security for, Borrower's
Obligations hereunder and (e) any consultations in connection with any of the
foregoing, including, without limitation, environmental consultants and
accountants. Borrower shall also pay Lender's customary bank charges for all
bank services performed or caused to be performed by Lender for Borrower at
Borrower's request or in connection with Borrower's loan account with Lender.
All such costs and expenses together with all filing, recording and search fees,
taxes and interest payable by Borrower to Lender shall be payable on demand and
shall be secured by the Collateral. If any tax by any governmental authority is
or may be imposed on or as a result of any transaction between Borrower and
Lender which Lender is or may be required to withhold or pay, Borrower agrees to
indemnify and hold Lender harmless in respect of such taxes, and Borrower will
repay to Lender the amount of any such taxes which shall be charged to
Borrower's account; and until Borrower shall furnish Lender with indemnity
therefor (or supply Lender with evidence satisfactory to it that due provision
for the payment thereof has been made), Lender may hold without interest any
balance standing to Borrower's credit and Lender shall retain its security
interests in any and all Collateral.
15. Assignment By Lender. Lender may assign any or all of the
Obligations together with any or all of the security therefor and any transferee
shall succeed to all of Lender's rights with respect thereto. In the event of
assignment by Lender other than to an Affiliate of Lender and Borrower
terminates this Agreement within three (3) months following the date of such
assignment, no early termination fee shall be payable in connection with such
termination. Upon such transfer, Lender shall be released from all
responsibility for the Collateral to the extent
-23-
same is assigned to any transferee. Lender may from time to time sell or
otherwise grant participations in any of the Obligations and the holder of any
such participation shall, subject to the terms of any agreement between Lender
and such holder, be entitled to the same benefits as Lender with respect to any
security for the Obligations in which such holder is a participant. Borrower
agrees that each such holder may exercise any and all rights of banker's lien,
set-off and counterclaim with respect to its participation in the Obligations as
fully as though Borrower were directly indebted to such holder in the amount of
such participation.
16. Waivers. Borrower waives presentment and protest of any
instrument and notice thereof, notice of default and all other notices to which
Borrower might otherwise be entitled.
17. Term of Agreement. This Agreement shall continue in full force
and effect until the expiration of the Term; provided, however, Lender may
terminate at any time upon ninety (90) days notice. The Term shall be
automatically extended for successive periods of two (2) years each unless
Borrower shall have provided Lender with a written notice of termination, at
least sixty (60) days prior to the expiration of the initial Term or any renewal
Term. Upon such extension of the initial Term or any renewal Term, Borrower
shall pay Lender an extension fee in an amount equal to the product of (x) the
Maximum Revolving Amount times (y) one percent (1.0%). Notwithstanding the
foregoing, Lender shall release its security interests at any time after thirty
(30) days notice upon payment to it of all Obligations if Borrower shall have
(i) provided Lender with an executed release of any and all claims which
Borrower may have or thereafter shall have under this Agreement and (ii) paid to
Lender an early payment fee as follows:
(a) during the period ending with the expiration of the initial
Term, the fee shall be equal to the product of (x) fifty percent (50%) of the
average monthly interest (including any minimum loan fees payable hereunder)
payable by Borrower to Lender from the Closing Date until the date of payment of
the fee hereunder multiplied by (y) the difference between (i) twenty-four and
(ii) the number of full months which have elapsed from the Closing Date until
the date of payment of the fee hereunder;
(b) during the period ending during any renewal Term of this
Agreement, the fee shall be equal to the product of (x) fifty percent (50%) of
the average monthly interest (including any minimum loan fees payable hereunder)
payable by Borrower to Lender from the date such renewal Term commences until
payment of the fee hereunder multiplied by (y) the difference between (i) twenty
four (24) and (ii) the number of full months which have elapsed from the date
such renewal Term is in effect until the date of payment of the fee hereunder;
such fee being intended to compensate Lender for its costs and expenses incurred
in initially approving this Agreement or
-24-
extending same. Such early payment fee shall also be due and payable by Borrower
to Lender upon termination of this Agreement by Lender after the occurrence of
an Event of Default.
18. Events of Default. The occurrence of any of the following shall
constitute an Event of Default:
(a) failure to make payment of any of the Obligations when required
hereunder;
(b) failure to pay any taxes when due unless such taxes are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been provided on Borrower's books;
(c) failure to perform under and/or committing any breach of this
Agreement or any Ancillary Agreement or any other agreement between Borrower and
Lender;
(d) occurrence of a default under any agreement to which Borrower is
a party with third parties which has a material adverse affect upon Borrower's
business, assets, operations, prospects or condition (financial or otherwise)
including all leases for any premises where Inventory or Equipment is located;
(e) any representation, warranty or statement made by Borrower
hereunder, in any Ancillary Agreement, any certificate, statement or document
delivered pursuant to the terms hereof, or in connection with the transactions
contemplated by this Agreement should at any time be false or misleading in any
material respect;
(f) if any Validity Guarantor attempts to terminate, challenges the
validity of, or its liability under any Validity Guaranty Agreement and there
shall be no Validity Guarantor remaining who has not defaulted or breached his
obligations under the Validity Guaranty Agreement and Borrower shall fail to
provide Lender with a replacement Validity Guarantor acceptable to Lender within
thirty (30) days of such occurrence or if any Validity Guarantor shall die and
there shall be no Validity Guarantor remaining who has not defaulted or breached
his obligations under the Validity Guaranty Agreement and Borrower shall fail to
provide Lender with a replacement Validity Guarantor acceptable to Lender within
thirty (30) days of such occurrence;
(g) should any Validity Guarantor default in its obligations under
any Validity Guaranty Agreement or if any proceeding shall be brought to
challenge the validity, binding effect of any Validity Guaranty Agreement or
should any Validity Guarantor breach any representation, warranty or covenant
contained in any Validity Guaranty Agreement or should any Validity Guaranty
Agreement cease to be a valid, binding and enforceable obligation and there
shall be no Validity Guarantor remaining who shall not
-25-
have defaulted or breached his obligations under the Validity Guaranty
Agreement;
(h) an attachment or levy is made upon any of Borrower's assets
having an aggregate value in excess of $15,000, or a judgment is rendered
against Borrower or any of Borrower's property involving a liability of more
than $15,000, which shall not have been vacated, discharged, stayed or bonded
pending appeal within thirty (30) days from the entry thereof;
(i) any change in Borrower's condition or affairs (financial or
otherwise) which in Lender's opinion, impairs Lender's lien on, affects the
priority of Lender's lien on or impacts Lender's access to Collateral having an
aggregate value in excess of $25,000 or the ability of Borrower to perform its
Obligations;
(j) any lien created hereunder or under any Ancillary Agreement for
any reason ceases to be or is not a valid and perfected lien having a first
priority interest;
(k) if Borrower shall (i) apply for, consent to or suffer to exist
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property,
(ii) make a general assignment for the benefit of creditors, (iii) commence a
voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (iv) be adjudicated a bankrupt or insolvent, (v) file a petition
seeking to take advantage of any other law providing for the relief of debtors,
(vi) acquiesce to, or fail to have dismissed, within thirty (30) days, any
petition filed against it in any involuntary case under such bankruptcy laws, or
(vii) take any action for the purpose of effecting any of the foregoing;
(l) Borrower shall admit in writing its inability, or be generally
unable to pay its debts as they become due or cease operations of its present
business;
(m) any Validity Guarantor shall (i) apply for, consent to or suffer
to exist the appointment of, or the taking possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
they become due or cease operations of its present business, (iii) make a
general assignment for the benefit of creditors, (iv) commence a voluntary case
under the federal bankruptcy laws (as now or hereafter in effect), (v) be
adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (vii) acquiesce
to, or fail to have dismissed, within thirty (30) days, any petition filed
against it in any involuntary case under such bankruptcy laws or (viii) take any
action for the purpose of effecting any of the foregoing and there shall be no
Validity Guarantor who shall not have
-26-
defaulted or breached his obligations under the Validity Guaranty Agreement;
(n) Borrower directly or indirectly sells, assigns, transfers,
conveys, or suffers or permits to occur any sale, assignment, transfer or
conveyance of any assets of Borrower or any interest therein, except as
permitted herein;
(o) Borrower fails to operate in the ordinary course of business;
(p) Lender shall in good ▇▇▇▇▇ ▇▇▇▇ itself insecure or unsafe or
shall fear diminution in value, removal or waste of the Collateral;
(q) a default by Borrower in the payment, when due, of any principal
of or interest on any indebtedness for money borrowed;
(r) any (i) transfer of ownership of not less than fifty percent
(50%) of the common stock of Borrower or (ii) change in senior management of the
Borrower which is not acceptable to Century provided, that Borrower may retain a
management consulting firm which has ▇▇▇▇▇ ▇▇▇▇▇▇▇ as an executive officer or
another management consulting firm acceptable to Lender without breaching the
foregoing restriction;
(s) the indictment or threatened indictment of Borrower, any officer
of Borrower or any Validity Guarantor under any criminal statute, or
commencement or threatened commencement of criminal or civil proceeding against
Borrower, any officer of Borrower pursuant to which statute or proceeding
penalties or remedies sought or available include forfeiture of any of the
property of Borrower or any Validity Guarantor;
(t) the occurrence of a breach of any provision of the Vista
Subordination Agreement or if any proceeding shall be brought to challenge the
validity or binding effect of the Vista Subordination Agreement or should the
Vista Subordination Agreement be terminated; or
(u) the occurrence of a default or event of default under the Vista
Subordinated Note, the Vista Subordinated Mortgage or the Vista Security
Agreement.
19. Remedies. Upon the occurrence of an Event of Default pursuant to
paragraph 18(k) herein, all Obligations shall be immediately due and payable and
this Agreement shall be deemed terminated; upon the occurrence and continuation
of any other of the Events of Default, Lender shall have the right to demand
repayment in full of all Obligations, whether or not otherwise due. Until all
Obligations have been fully satisfied, Lender shall retain its security interest
in all Collateral. Lender shall have,
-27-
in addition to all other rights provided herein, the rights and remedies of a
secured party under the UCC, and under other applicable law, all other legal and
equitable rights to which Lender may be entitled, including without limitation,
the right to take immediate possession of the Collateral, to require Borrower to
assemble the Collateral, at Borrower's expense, and to make it available to
Lender at a place designated by Lender which is reasonably convenient to both
parties and to enter any of the premises of Borrower or wherever the Collateral
shall be located, with or without force or process of law, and to keep and store
the same on said premises until sold (and if said premises be the property of
Borrower, Borrower agrees not to charge Lender for storage thereof), and the
right to apply for the appointment of a receiver for Borrower's property.
Further, Lender may, at any time or times after default by Borrower, sell and
deliver all Collateral held by or for Lender at public or private sale for cash,
upon credit or otherwise, at such prices and upon such terms as Lender, in
Lender's sole discretion, deems advisable or Lender may otherwise recover upon
the Collateral in any commercially reasonable manner as Lender, in its sole
discretion, deems advisable. The requirement of reasonable notice shall be met
if such notice is mailed postage prepaid to Borrower at Borrower's address as
shown in Lender's records, at least ten (10) days before the time of the event
of which notice is being given. Lender may be the purchaser at any sale, if it
is public. In connection with the exercise of the foregoing remedies, Lender is
granted permission to use all of Borrower's trademarks, tradenames, tradestyles,
patents, patent applications, licenses, franchises and other proprietary rights
which are used in connection with (a) Inventory for the purpose of disposing of
such Inventory and (b) Equipment for the purpose of completing the manufacture
of unfinished goods. The proceeds of sale shall be applied first to all costs
and expenses of sale, including attorneys' fees, and second to the payment (in
whatever order Lender elects) of all Obligations. Lender will return any excess
to Borrower and Borrower shall remain liable to Lender for any deficiency. In
addition to all other sums due to Lender, Borrower shall pay Lender, for costs
and expenses incurred by Lender for internal collection efforts to obtain or
enforce payment of Receivables, an amount equal to fifteen percent (15%) of the
net face amount of any Receivables collected.
20. Waiver; Cumulative Remedies. Failure by Lender to exercise any
right, remedy or option under this Agreement or any supplement hereto or any
other agreement between Borrower and Lender or delay by Lender in exercising the
same, will not operate as a waiver; no waiver by Lender will be effective unless
it is in writing and then only to the extent specifically stated. Lender's
rights and remedies under this Agreement will be cumulative and not exclusive of
any other right or remedy which Lender may have.
21. Application of Payments. Borrower irrevocably waives the right
to direct the application of any and all payments
-28-
at any time or times hereafter received by Lender from or on Borrower's behalf
and Borrower hereby irrevocably agrees that Lender shall have the continuing
exclusive right to apply and reapply any and all payments received at any time
or times hereafter against Borrower's Obligations hereunder in such manner as
Lender may deem advisable notwithstanding any entry by Lender upon any of
Lender's books and records.
22. Depository Accounts. Any payment received by Borrower on account
of any Collateral shall be held by Borrower in trust for Lender and Borrower
shall promptly deliver same in kind to Lender or deposit all such payments into
a cash collateral account at such bank as Lender may designate for application
to payment of the Obligations. Borrower shall also execute such further
documents as Lender may deem necessary to establish such an account and all
funds deposited in such account shall immediately be deemed Lender's property.
23. Lock Box Accounts. Borrower shall, at Lender's request, instruct
all of its customers and account debtors to make such payments on account of
Receivables to an account under Lender's dominion and control at such bank as
Lender may designate. Borrower shall also execute such further documents as
Lender may deem necessary to establish such an account and all funds deposited
in such account shall immediately be deemed Lender's property.
24. Revival. Borrower further agrees that to the extent Borrower
makes a payment or payments to Lender, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to a trustee, receiver or any other party
under any bankruptcy act, state or federal law, common law or equitable cause,
then, to the extent of such payment or repayment, the obligation or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if said payment had not been made.
25. Notices. Any notice or request hereunder may be given to
Borrower or Lender at the respective addresses set forth below or as may
hereafter be specified in a notice designated as a change of address under this
paragraph. Any notice or request hereunder shall be given by registered or
certified mail, return receipt requested, hand delivery, overnight mail or
telecopy (confirmed by mail). Notices and requests shall be, in the case of
those by hand delivery, deemed to have been given when delivered to any officer
of the party to whom it is addressed, in the case of those by mail or overnight
mail, deemed to have been given when deposited in the mail or with the overnight
mail carrier, and, in the case of a telecopy, when confirmed.
Notices shall be provided as follows:
If to the Lender: Century Business Credit Corporation
-29-
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ & Hessen LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower: Alabaster Industries, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Vista 2000, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
26. Governing Law and Waiver of Jury Trial. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. LENDER SHALL HAVE THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER
APPLICABLE LAW INCLUDING, BUT NOT LIMITED TO, THE UNIFORM COMMERCIAL CODE OF NEW
YORK. BORROWER AGREES THAT ALL ACTIONS AND PROCEEDINGS RELATING DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT OR ANY OTHER OBLIGATIONS
SHALL BE LITIGATED IN THE FEDERAL DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK OR, AT LENDER'S OPTION, IN ANY OTHER COURTS LOCATED IN NEW YORK STATE OR
ELSEWHERE AS LENDER MAY SELECT AND THAT SUCH COURTS ARE CONVENIENT FORUMS AND
BORROWER SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS. BORROWER WAIVES
PERSONAL SERVICE OF PROCESS AND CONSENTS THAT SERVICE OF PROCESS UPON BORROWER
MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED
TO BORROWER AT BORROWER'S ADDRESS APPEARING ON LENDER'S RECORDS, AND SERVICE SO
MADE SHALL BE DEEMED COMPLETED TWO (2) DAYS AFTER THE SAME SHALL HAVE BEEN SO
MAILED. BOTH PARTIES HERETO WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BETWEEN BORROWER AND LENDER AND BORROWER WAIVES THE RIGHT TO ASSERT
IN ANY ACTION OR PROCEEDING INSTITUTED BY LENDER WITH REGARD TO THIS AGREEMENT
OR ANY OF THE OBLIGATIONS ANY OFFSETS OR COUNTERCLAIMS WHICH IT MAY HAVE.
-30-
27. Limitation of Liability. Borrower acknowledges and understands
that in order to assure repayment of the Obligations hereunder Lender may be
required to exercise any and all of Lender's rights and remedies hereunder and
agrees that neither Lender nor any of Lender's agents shall be liable for acts
taken or omissions made in connection herewith or therewith except for actual
bad faith.
28. Entire Understanding. This Agreement and the Ancillary
Agreements contain the entire understanding between Borrower and Lender and any
promises, representations, warranties or guarantees not herein contained shall
have no force and effect unless in writing, signed by the Borrower's and
Lender's respective officers. Neither this Agreement, the Ancillary Agreements,
nor any portion or provisions thereof may be changed, modified, amended, waived,
supplemented, discharged, cancelled or terminated orally or by any course of
dealing, or in any manner other than by an agreement in writing, signed by the
party to be charged.
29. Severability. Wherever possible each provision of this Agreement
or the Ancillary Agreements shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or the Ancillary Agreements shall be prohibited by or invalid under applicable
law such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions thereof.
30. Captions. All captions are and shall be without substantive
meaning or content of any kind whatsoever.
31. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same instrument.
-31-
32. Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments,
schedules or exhibits thereto.
33. Publicity. Borrower hereby authorizes Lender to make appropriate
announcements of the financial arrangement entered into by and between Borrower
and Lender, including, without limitation, announcements which are commonly
known as tombstones, in such publications and to such selected parties as Lender
shall in its sole and absolute discretion deem appropriate.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
ATTEST: ALABASTER INDUSTRIES, INC.
By: /s/ [ILLEGIBLE] By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- -------------------------
Secretary
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: PRESIDENT
CENTURY BUSINESS CREDIT
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: S.V. Pres.
-32-
EXHIBITS (a)-(d)
Exhibit 1(A) - Permitted Liens
Liens granted by Borrower to Vista pursuant to the Vista Security
Agreement and the Vista Mortgage
Exhibit 12(j) - Licenses, Patents, Trademarks and Copyrights
APPLICATION OR ISSUE OR
PATENTS PATENT NO. COUNTRY FILING DATE TITLE
------- -------------- ------- ----------- -----
29/051,350 U.S.A. 3/6/96 "Carrier for
supporting a large
drink cup in an
automobile cup
holder"
REG. NO. OR REG. OR
TRADEMARKS APPLICATION NO. ▇▇▇▇ COUNTRY FILING DATE
---------- --------------- ---- ------- -----------
1,568,430 ALABASTER U.S.A. 11/28/89
1,567,206 ALABASTER U.S.A. 11/21/89
Exhibit 12(l) - Inventory Locations
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Exhibit 12(m) - Permitted Indebtedness
Indebtedness of Borrower to Vista as evidenced by a promissory note dated
July 31, 1995 in the principal amount of $4,800,000
Indebtedness of Borrower pursuant to a Permitted Mortgage Financing