LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (the "Loan Agreement") dated as of
September 2, 2005, between RVision, LLC, a California Limited Liability Company
(the "Debtor") and Xxxxxxx X. Xxxxx, an individual residing in Salt Lake County,
Utah as the Lender Representative (the "Lender Representative") for JES
Holdings, LLC, Fiserv ISS & Co. Trustee FBO H. Xxxxxx Xxxxxxxx, XXX and Xxxxx X.
Xxxxx, (individually a "Lender" and collectively the "Lending Group").
RECITALS
The equity owners of the Debtor have entered into a Consolidation
Agreement dated August 30, 2005, with Eagle Lake Incorporated ("Eagle Lake"),
the equity owners of Custom Federal, Inc. ("CFED") and Xxxxxx Xxxxx which
provides for the consolidation of the businesses and operations of the three
companies. The transactions contemplated by the Consolidation Agreement are
schedule to close on or before November 2, 2005 (the "Closing"). As a condition
precedent to the Closing of the consolidation transaction, Eagle Lake is require
to sell between 2,000,000 and 2,800,000 shares of Eagle Lake common stock for
gross proceeds of between $2,000,000 million and $2,800,000 million in
transactions exempt from registration under the Securities Act (the "Private
Placement"). Pending the Closing, the Debtor desires to borrow $300,000 from
Lender to provide additional funding for the production of its products,
primarily its Carbide 50 and its surveillance device known as XXXX. Lender is
willing to provide Debtor with the Loan as evidenced by the Senior Secured
Promissory Note of even date herewith a copy of which is attached hereto as
Exhibit B (the "Senior Note") on the condition that the Debtor grants Lender a
first lien position security interest in the Collateral to secure the Debtor's
obligations to the Lender and on the other terms and conditions set forth herein
and the other Loan Documents. Debtor will benefit from the Lender's extension of
the Loan to Debtor and Debtor desires to grant Lender a first lien position
security interest in the Collateral and has negotiated a Subordination Agreement
of even date herewith (the "Subordination Agreement") with Eagle Lake in which
Eagle Lake agrees to subordinate the obligations arising under the Secured
Promissory Note and Security Agreement dated March 27, 2002, in order to provide
Lender with a first lien position in the Collateral. This Loan and Security
Agreement, the Senior Note, the Subordination Agreement and any other documents
and instruments executed and delivered in connection herewith and therewith
shall be referred to as the "Loan Documents").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and promises contained
herein and in order to induce the Lender to make the Loan, the Debtor hereby
agrees with the Lender as follows:
1. Incorporation of Recitals. The above stated recitals are
incorporated herein and made a part hereof by this reference.
2. Definitions. All capitalized terms used but not defined herein shall
have the meanings given to them in the other Loan Documents
3. Agreement to Lend. Subject to the terms and conditions of this Loan
Agreement, the Lending Group through the Lender Representative agrees to make a
loan to Debtor in the amount of Three Hundred Thousand Dollars ($300,000) (the
"Loan") as evidenced by the Senior Note. All outstanding principal and interest
shall be due and payable on or before the earlier of the Closing or December 1,
2005.
4. Interest. The Debtor agrees to pay the Lender interest on the unpaid
principal amount of the Loan from and including the date the Loan is made to but
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not including the date on which the Loan is paid in full. The Loan shall bear
simple interest for each day the Loan is outstanding at the rate of nine percent
(9%) per annum (the "Base Rate").
5. Loan Fee; Costs. Upon disbursement of the proceeds of the Loan to
Debtor, Debtor agrees to issue a total of 24,000 Units of Debtor's limited
liability company interest which shall automatically be converted into 24,000
shares of common stock (8 units/shares for each $100 of the Loan) of Eagle Lake
upon consummation of the Closing to the Lending Group beneficiaries listed on
Exhibit A and in the amounts set forth on Exhibit A (the "Loan Fee"). In the
event that the Closing does not occur, the Lending Group will own the Loan Fee
which will remain as Units of the Debtor and the Loan will be due and payable on
December 1, 2005. Debtor also agrees to reimburse Lender for fees and costs
incurred in connection with the transactions relating to the Loan in the amount
of $2,500 upon disbursement of the proceeds of the Loan.
6. Conversion by Lender. Commencing on the date that Eagle Lake offers
shares in a Private Placement for a minimum of $2,000,000 million and continuing
until close of the offering, Lender may convert the principal amount and accrued
interest owing under the Loan into post-closing post-reverse split shares of
common stock of Eagle Lake at the conversion rate equal to the price per shares
offered in the Private Placement memorandum. If Lender elects to convert the
principal amount and accrued interest owing under the Loan into Eagle Lake
shares, it shall provide to Borrower and Eagle Lake prior written notice of such
election and shall comply with the terms and conditions set forth in the
offering memorandum for the Private Placement including the execution and
delivery of subscription documents.
7. Grant of Security Interest. The Debtor hereby grants to the Lender,
to secure the payment of all monies due by Debtor to the Lender with respect to
the Loans and the performance of all obligations of Debtor to the Lender arising
under the Loan Documents and the Loans, and under all other documents and
agreements delivered by Debtor to Lender pursuant to the Senior Note, of every
kind and description, whether absolute or contingent, due or to become due, now
existing or hereafter incurred, including amounts that would become due but for
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. ss. 362(a), (collectively, the "Obligations"), a security interest in
all assets and property of the Debtor, wherever located, including the following
(collectively the "Collateral"):
(a) Inventory. All inventory now owned or hereafter acquired
by Debtor, including, without limitation, all merchandise, raw
materials, parts, supplies, packing and shipping materials, work in
process and finished products, and documents of title representing any
of the foregoing.
(b) Accounts. All now existing and hereafter arising
receivables, accounts, contract rights, royalties, license rights and
all other forms of obligations owing to Debtor arising out of the sale
or lease of goods, the licensing of technology or the rendering of
services by Debtor, whether or not earned by performance, and any and
all credit insurance, guaranties, and other security therefor, as well
as all merchandise returned to or reclaimed by Debtor;
(c) Negotiable Collateral. All of Debtor's letters of credit,
advices of credit, negotiable documents, warehouse receipts, bills of
lading, certificates of title, certificates of deposit, chattel paper,
instruments, notes, documents and documents of title.
(d) Proceeds. All proceeds of the foregoing (including,
without limitation, whatever is receivable or received when Collateral
or proceeds are sold, collected, exchanged or otherwise disposed of,
whether such disposition is voluntary or involuntary, including,
without limitation, rights to payment or performance with respect to
return premiums, insurance proceeds, indemnities, warranties, and
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causes of action affecting or relating to the Collateral), and all
claims, rights and interests in any of the above and all substitutions
therefor and additions and accessions thereto.
8. Representations, Warranties and Covenants. Until the Obligations are
indefeasibly paid and performed in full, the Debtor hereby represents and
warrants to and covenants with the Lender that:
(a) Ownership of Collateral. Debtor is the owner of, and has
good and marketable title to, the Collateral, free and clear of all
Liens. "Lien" means any security interest, pledge, bailment, mortgage,
deed of trust, conditional sales and title retention agreement
(including any lease in the nature thereof), charge, encumbrance or
other similar arrangement or interest in real or personal property,
whether such interest is based on common law, statute or contract.
(b) Enforceable Lien. This Loan Agreement creates a valid and
enforceable Lien on the Collateral in favor of Lender, and all filings
and other actions necessary or desirable to protect and perfect such
Lien have been duly taken or will be taken including without limitation
the filing of such UCC-1 financing statements in favor of the Lending
Group and the filing by Eagle Lake of such UCC-2 Financing Statement
Amendments reflecting the subordination of Eagle Lake to the Lending
Group.
(c) Name. Debtor does not conduct business under any business
name, trade name or style other than the name set forth in the
introductory paragraph hereof. None of the Collateral has been held in
the name of any other person or entity over the past 5 years.
(d) No Untrue Statement. All information set forth herein and
in the other Loan Documents, or hereafter supplied to Lender by or on
behalf of Debtor with respect to the Collateral, contains no known
untrue statement of a material fact and does not omit and will not omit
to state any material fact necessary to make any information so
supplied, in light of the circumstances under which they were supplied,
not misleading.
(e) Protection of Collateral and Lender's Lien. Debtor agrees
to perform all acts that may be necessary to maintain, preserve,
protect and perfect the Collateral, the Lien granted to Lender therein
and the first priority of Lender's Lien. Debtor agrees to appear in and
defend any action or proceeding, which may affect its title to, or
Lender's interest in, any Collateral that is material to the business
of Debtor, including, without limitation, suits for infringement of any
Proprietary Collateral.
(f) Charges on Collateral. Debtor agrees to pay promptly when
due all taxes, Liens and all other charges now or hereafter imposed
upon or affecting any Collateral. Should the Debtor fail to do so the
Lender may, in its discretion, discharge taxes, charges and other
encumbrances at any time levied or placed on or assessed with respect
to the Collateral, make repairs thereof and pay any necessary filing
fees, if the failure to do so could have a material adverse effect on
the business, properties, assets, operation or condition (financial or
otherwise) of the Debtor and any subsidiaries, taken as a whole. The
Debtor agrees to reimburse the Lender on demand for any and all
expenditures so made and until paid the amount thereof shall be a debt
secured by the Collateral. The Lender shall not have any obligation to
the Debtor to make any such expenditures, nor shall the making thereof
relieve the Debtor of any default prior to reimbursement by the Debtor
to the Lender in full of any such expenditures.
(g) Further Assurances. Debtor agrees to procure, execute and
deliver from time to time any endorsements, assignments, financing
statements, collateral assignments and other writings reasonably deemed
necessary or appropriate by Lender to perfect, maintain and protect its
Lien hereunder and the priority thereof.
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(h) Changes in Name or Location. Debtor shall not change its
name, its state of incorporation, the location of the Collateral or the
location of Debtor's principal executive office except upon 30 days'
advance written notice to Lender.
(i) Records of Collateral. Debtor shall keep separate,
accurate and complete records of the Collateral and provide Lender with
such records and such other reports and information relating to the
Collateral as Lender may reasonably request from time to time.
(j) Transfer of Collateral. Debtor agrees not to sell,
encumber, lease, rent, license, abandon, or cause to be rendered
invalid or unenforceable, or otherwise dispose of or transfer any
Collateral, or right or interest therein, except for a de minimis
portion thereof, other than to Lender, or with the prior written
consent of Lender.
(k) Notice of Loss. Debtor shall promptly notify Lender in
writing of any material loss, damage or destruction to, infringement
of, and the occurrence of any event that could have a material adverse
effect on, any Collateral or Lender's Lien therein, whether or not
covered by insurance, including, without limitation, any petition under
the Bankruptcy Code filed by or against any licensor of any of the
Proprietary Collateral for which Debtor is a licensee.
9. Certain Remedies. Upon the occurrence and during the continuance of
an event of default hereunder, the Lender after 60 days from written notice to
the Debtor may at any time in its discretion transfer any property constituting
Collateral into its own name or that of its nominee and receive the income
thereon and hold the same as security for Obligations or apply it on principal
or interest due on Obligations. None of the aforementioned rights or remedies
shall inure to the benefit of the Lender at any time when an event of default is
not continuing. The powers conferred on the Lender by this paragraph are solely
to protect the interest of the Lender and shall not impose any duties on the
Lender to exercise any powers.
10. Default: Remedies. Debtor shall be in default under this Loan
Agreement upon the occurrence of an Event of Default as defined in the Senior
Note or any other event of default under any other Loan Documents, including
without limitation any breach of any representation, warranty or covenant in
this Loan Agreement. Thereupon, and as long as such event of default continues
after 60 days from written notice to the Debtor, the Lender shall then have in
any jurisdiction where enforcement hereof is sought, to the fullest extent
permitted by law from time to time, in addition to all other rights and
remedies, the rights and remedies of a secured party under the Uniform
Commercial Code of California, including without limitation thereto the right to
take immediate possession of the Collateral, and for this purpose the Lender
may, so far as Debtor can give authority therefor, enter upon any premises on
which the Collateral, or any part thereof, may be situated and remove the same
therefrom. The Debtor will upon demand make the Collateral available to the
Lender at a place and time designated by the Lender that is reasonably
convenient to both parties. The Lender will give the Debtor at least ten (10)
days prior written notice of the time and place of any public sale of Collateral
or of the time after which any private sale thereof is to be made.
11. Private Sale and Compliance with Law.
(a) Lender shall not incur any liability as a result of the
sale of Collateral, or any part thereof, at any private sale conducted
in a commercially reasonable manner. Debtor hereby waives any claim
against Lender arising by reason of the fact that the price at which
Collateral may have been sold at such a private sale conducted in a
commercially reasonable manner was less than the price which might have
been obtained at a public sale or was less than the aggregate amount of
the Obligations, even if Lender accepts the first offer received and
does not offer Collateral to more than one offeree.
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(b) Debtor agrees that in any sale of any of the Collateral
whenever an event of default hereunder shall have occurred and be
continuing, Lender is hereby authorized to comply with any limitation
or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
or in order to obtain any required approval of the sale or of the
purchaser by any governmental regulatory authority or official, and
Debtor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall Lender be liable or accountable to Debtor
for any discount allowed by reason of the fact that such Collateral is
sold in compliance with any such limitation or restriction
12. Application of Proceeds. All proceeds received by the Lender in
respect of any sale of, collection from, or other realization upon all or any
part of the Collateral shall be held by the Lender as Collateral for, and
promptly applied in whole by the Lender against, the Obligations in the
following order of priority:
FIRST: To the repayment of the costs and expenses of such sale,
collection or other realization, and all expenses, liabilities
and advances made or incurred by the Lender in connection
therewith;
SECOND: After payment in full of the amounts specified in the
preceding subparagraph, to the payment of all Obligations; and
THIRD: After payment in full of the amounts specified in the
preceding subparagraphs, to the payment to or upon the order
of the Debtor, or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining.
13. Lender Representative Appointed Attorney-in-Fact. The Debtor hereby
irrevocably appoints Lender Representative as the Debtor's attorney-in-fact,
with full authority in the place and stead of the Debtor and in the name of the
Debtor, the Lender Representative or otherwise, from time to time in the Lender
Representative's discretion upon the occurrence and during the continuation of
an event of default hereunder, to take any action and to execute any instrument
which the Lender Representative may deem necessary or advisable to accomplish
the purposes of this Loan Agreement, including, without limitation to file any
claims or take any action or institute any proceedings which the Lender may deem
reasonably necessary for the collection of any of the Collateral or otherwise to
enforce the rights of the Lender with respect to any of the Collateral.
14. Lender's Duties. The powers conferred on the Lender Representative
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers. Except for the safe custody
of any Collateral in its possession and the accounting for moneys actually
received by it hereunder, the Lender Representative shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
15. Indemnity and Expenses. The Debtor agrees to defend, indemnify and
hold harmless the Lender from and against any and all claims, losses and
liabilities growing out of or resulting from this Loan Agreement (including,
without limitation, enforcement of this Loan Agreement), except claims, losses
or liabilities resulting from the Lender's gross negligence or willful
misconduct.
16. Amendments, Etc. No amendment or waiver of any provision of this
Loan Agreement nor consent to any departure by the Debtor herefrom shall in any
event be effective unless the same shall be in writing and signed by the Lender,
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and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. None of the Debtor's rights or
obligations or any interest therein hereunder may be assigned without the
written consent of the Lender.
17. Addresses for Notices. Any notice required or permitted under this
Loan Agreement shall be given in writing and shall be deemed effectively given
upon personal delivery to the party to be notified or upon delivery by confirmed
facsimile transmission, nationally recognized overnight courier service, or upon
deposit with the United States Post Office, by registered or certified mail,
postage prepaid and addressed to the party to be notified at the address
indicated below, or at such other address as such party may designate by ten
(10) days' advance written notice to the other parties.
If to the Debtor: RVision
Attn: Xxxxxxx Xxxxxxxx
0000 X Xxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
If to the Lender: Eagle Lake Incorporated
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
18. Continuing Security Interest. This Loan Agreement shall create a
continuing security interest in the Collateral, and shall (a) remain in full
force and effect until payment and performance in full of the Obligations (or 91
days after payment and performance in full of the Obligations solely if the
Lender has, in good faith based upon an opinion of Lender's counsel, reasonable
cause to believe that such payment may constitute a voidable preference under
federal bankruptcy law and no reasonable defense to such preference exists), (b)
be binding upon the Debtor, its successors and assigns and (c) inure to the
benefit of the Lender and their successors, transferees and assigns. Upon the
payment in full of the Obligations (or 91 days after payment and performance in
full of the Obligations solely if the Lender has, in good faith based upon an
opinion of Lender's counsel, reasonable cause to believe that such payment will
constitute a voidable preference under federal bankruptcy law and no reasonable
defense to such preference exists), the security interest granted hereby shall
terminate and all rights to the Collateral shall revert to the Debtor. Upon any
such termination, the Lender will, at the Debtor's expense, execute and deliver
to the Debtor such documents, as the Debtor shall reasonably request to evidence
such termination.
19. Governing Law: Terms. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to conflict of laws principles, except to the extent that the validity or
perfection of the security interest hereunder, or remedies hereunder, in respect
of any particular Collateral are governed by the laws of a jurisdiction other
than the State of California. Unless otherwise defined herein, terms defined in
the Uniform Commercial Code in effect in the State of California are used herein
as therein defined.
20. Consent to Jurisdiction; Waiver of Jury Trial.
(a) CONSENT TO JURISDICTION. EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY (I) AGREES THAT ANY SUIT, ACTION OR OTHER LEGAL
PROCEEDING ARISING OUT OF THIS LOAN AGREEMENT MAY BE BROUGHT IN THE
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA OR,
IF SUCH COURT DOES NOT HAVE JURISDICTION OR WILL NOT ACCEPT
JURISDICTION, IN ANY COURT OF GENERAL JURISDICTION IN THE COUNTY OF
SANTA CLARA, CALIFORNIA; (II) CONSENTS TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING; AND (III) WAIVES ANY
OBJECTION WHICH SUCH PARTY MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
SUIT AMONG OR PROCEEDING IN ANY SUCH COURT.
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(b) SERVICE OF PROCESS. EACH PARTY IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY PROCESS, PLEADING, NOTICES OR OTHER PAPERS BY THE
MAILING OF COPIES THEREOF BY REGISTERED, CERTIFIED OR FIRST CLASS MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT SUCH PARTY'S ADDRESS AS SET FORTH IN
THIS LOAN AGREEMENT, OR BY ANY OTHER METHOD PROVIDED OR PERMITTED UNDER
NEVADA LAW.
(c) WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS LOAN AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
21. Injunctive Relief. The parties hereto acknowledge and agree that
any party's remedy at law for a breach or threatened breach of any of the
provisions of this Loan Agreement would be inadequate and such breach or
threatened breach shall be per se deemed as causing irreparable harm to such
party. Therefore, in the event of such breach or threatened breach, the parties
hereto agree that, in addition to any available remedy at law, including but not
limited to monetary damages, an aggrieved party, without posting any bond, shall
be entitled to seek equitable relief in the form of specific enforcement,
temporary restraining order, temporary or permanent injunction, or any other
equitable remedy that may then be available to the aggrieved party.
22. Counterparts. This Loan Agreement may be signed in counterparts,
with the same effect as if the signatures were on the same instrument.
23. Severability. If one or more provisions of this Loan Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (a) such
provision shall be excluded from this Loan Agreement, (b) the balance of the
Loan Agreement shall be interpreted as if such provision were so excluded and
(c) the balance of this Loan Agreement shall be enforceable in accordance with
its terms.
IN WITNESS WHEREOF, the Debtor and the Lender have executed this Loan
and Security Agreement as of the date first above written.
RVISION, LLC LENDER
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------------- --------------------
Xxxxxxx X. Xxxxxxx, President Xxxxxxx X. Xxxxx, as representative for
the Lending Group listed on Exhibit A
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EXHIBIT A
LENDING GROUP
Name Address Loan Amount #Unit/Shares
---------------------------- ----------------------------------------- ------------------------ ----------------------
JES Holdings, LLC 0000 X. 0000 X. $50,000.00 4,000/4,000
Xxxx Xxxx Xxxx, XX 00000
---------------------------- ----------------------------------------- ------------------------ ----------------------
Fiserv ISS & Co. Trustee Fiserv ISS Co. Trustee FOB $100,000.00 8,000/8,000
FBO H. Xxxxxx Xxxxxxxx, XXX X. Xxxxxx Xxxxxxxx XXX
Xxxx Xxxxxx Xxx 000000
Xxxxxx, XX 00000-0000
---------------------------- ----------------------------------------- ------------------------ ----------------------
Xxxxx X. Xxxxx 0000 Xxxxx Xxx, #000 $150,000.00 12,000/12,000
Xxx Xxxxx, XX 00000
---------------------------- ----------------------------------------- ------------------------ ----------------------
Total $300,000.00 24,000/24,000
============================ ========================================= ======================== ======================
