EXHIBIT 10.18
SECURITY AGREEMENT
(ACCOUNTS RECEIVABLE
INVENTORY AND EQUIPMENT)
BETWEEN
FINOVA CAPITAL CORPORATION
000 XXXX 00XX XXXXXX
XXX XXXX, XXX XXXX 00000
AND
AZUREL LTD.
SCENT 1-2-3, INC.
000 XXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
PRIVATE LABEL COSMETICS, INC.
FASHION LABORATORIES, INC.
P.L.C. SPECIALTIES, INC.
INTERNATIONAL COSMETIC GROUP, INC.
00-00 XXXXX XXXXXX
XXXXXXXX, XXX XXXXXX 00000
CAMBRIDGE BUSINESS SERVICES CORPORATION BUSINESS SERVICES CORPORATION
00 XXXXXXXXXXXX XXXXXX
XXXX XXXXXXXXXX, XXX XXXX 00000
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This Security Agreement, made and entered into in Maricopa County,
Arizona, this 6th day of February, 1998 by and between AZUREL LTD. and SCENT
1-2-3, INC., corporations existing under and by virtue of the laws of the State
of Delaware, with their principal place of business located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, CAMBRIDGE BUSINESS SERVICES CORPORATION, a
corporation existing under and by virtue of the laws of the State of Delaware,
with its principal place of business located at 00 Xxxxxxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxxx, Xxx Xxxx, 00000, FASHION LABORATORIES, INC., a corporation existing
under and by virtue of the laws of the State of Delaware, with its principal
place of business located at 00-00 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000,
PRIVATE LABEL COSMETICS, INC. , P.L.C. SPECIALTIES, INC. and INTERNATIONAL
COSMETIC GROUP, INC., corporations existing under any by virtue of the laws of
the State of New Jersey ("Borrower") and FINOVA CAPITAL CORPORATION, a Delaware
corporation, with a place of business located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("FINOVA"). This Agreement sets forth the terms and conditions
upon which FINOVA may, in its sole and absolute discretion, make loans, advances
and other financial accommodations to or for the benefit of Borrower upon the
security referred to herein.
Section 1. DEFINED TERMS
1.1. All terms used herein which are defined in Article 1 or Article 9 of
the Uniform Commercial Code (the "UCC") shall have the same meaning as given
therein unless otherwise defined in this Agreement. All references to the plural
shall also mean the singular.
1.2. "Account" or "Accounts" shall mean all of Borrower's present and
hereafter created accounts receivable, contract rights, general intangibles,
security deposits, trade styles, trademarks, chattel paper, notes, drafts,
acceptances, leases, lease payments, rents, tax refunds, options to purchase
real or personal property, securities, stock options, customer lists, insurance
claims, patents, patent applications, documents, instruments, copyrights,
claims, and any other choses in action, as such terms may be defined in the UCC,
including, without limitation, all obligations for the payment of money arising
out of Borrower's sale, lease or other disposition of goods or other property or
Borrower's rendition of services, and to all of Borrower's merchandise which is
represented thereby whether delivered or undelivered, and to all proceeds
thereof including, but not limited to, the proceeds of any insurance thereon
whether or not specifically assigned to FINOVA.
1.3."Account Debtor" shall mean each debtor or obligor in any way
obligated on or in connection with any Account.
1.4. "Collateral" shall have the meaning set forth in Section 4.1 hereof.
1.5. "Costs and Expenses" shall include, but not be limited to
commissions, fees, appraisal fees, taxes, title insurance premiums, internal and
external audit expenses for routine and non-routine audits, field examination
expenses, filing, recording and search expenses, reasonable attorney's fees and
disbursements (as may be incurred with respect to the effectuation of this
Agreement or any claim of any nature or litigation whatsoever arising out of or
as a result of the interpretation of this Agreement or the financing provided
for hereunder, including, but not limited to,
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FINOVA Capital Corporation Security Agreement
all fees and expenses for the service and filing of papers, premiums on bonds
and undertakings, fees of marshals, sheriffs, custodians, auctioneers and
others, travel expenses and all court costs and collection charges), Facility
Fees (as defined herein), postage, wire transfer fees, check dishonor fees and
other out of pocket expenses arising out of or relating to the negotiations,
preparation, consummation, administration and enforcement of this Agreement or
any other agreement between Borrower and FINOVA including, but not limited to
any guaranty of the Obligations (as defined herein).
1.6. "Default Rate of Interest" shall have the meaning set forth in
Section 3.2 hereof.
1.7. "Eligible Accounts" shall mean Accounts created by Borrower in the
ordinary course of its business arising out of its sale of goods or rendition of
services, which are and at all times shall continue to be acceptable to FINOVA
in its sole and absolute discretion. Standards of eligibility may be fixed and
revised from time to time solely by FINOVA in its exclusive judgment. In
determining eligibility, FINOVA may, but need not, rely on agings, reports and
schedules of Accounts furnished by Borrower but reliance by FINOVA thereon from
time to time shall not be deemed to limit its right to revise standards of
eligibility at any time without notice as to both Borrower's present and future
Accounts.
1.8. "Events of Default" shall have the meaning set forth in Section 8.1
hereof.
1.9. "Facility Fee" shall have the meaning set forth in Section 3.5
hereof.
1.10. "Line of Credit" as used herein is solely for the purpose of
computing the Facility Fee and does not represent any amount or amounts
available for borrowing purposes nor any limit as to the amount or amounts
available for borrowing purposes, each of which shall be determined at FINOVA's
sole and absolute discretion. Subject to the preceding sentence, Borrower's Line
of Credit is $3,500,000.
1.11. "Net Amount of Eligible Accounts" shall mean the gross amount of
Eligible Accounts less sales, excise or similar taxes, and less returns,
discounts, claims, credits, reserves (as determined by FINOVA in its sole
discretion) and allowances of any nature at any time issued, owing, granted,
outstanding, available or claimed.
1.12. "Obligations" shall mean any and all loans, advances,
accommodations, indebtedness, liabilities, Costs and Expenses and all
obligations of every kind and nature owing by Borrower to FINOVA, however
evidenced, whether as principal, guarantor or otherwise, whether arising under
this Agreement, any supplement hereto, or otherwise, whether now existing or
hereafter arising, whether direct or indirect, absolute or contingent, joint or
several, due or not due, primary or secondary, liquidated or unliquidated,
secured or unsecured, original, renewed, modified or extended, and whether
arising directly or acquired from others (including, without limitation,
wherever applicable, FINOVA's participations or interests in Borrower's
obligations to others) and including, without limitation,
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FINOVA Capital Corporation Security Agreement
FINOVA's charges, of whatever nature, commissions, interest, expenses, costs and
attorneys' fees, all of which are chargeable to Borrower in connection with any
of the foregoing.
1.13. "Records" shall have the meaning set forth in Section 4.1(f)
hereof.
1.14. "Renewal Date" shall have the meaning set forth in Section 9.1
hereof.
Section 2 . LOANS AND ADVANCES
2.1. FINOVA shall from time to time, in its sole and absolute discretion,
make loans, advances and other financial accommodations to or for the benefit of
Borrower of up to: (a) 85% of the Net Amount of Eligible Accounts (or such
greater or lesser percentage thereof as FINOVA shall, in its sole and absolute
discretion determine); (b) 50% of eligible inventory (as determined by FINOVA in
its sole and absolute discretion and priced at the lower of cost or market) in
an amount not to exceed $500,000.
2.2. All Obligations shall be charged to an account in the Borrower's
name as maintained on FINOVA's books. FINOVA shall render to Borrower a monthly
statement of its account which statement shall be deemed correct, accepted by,
and conclusively binding upon Borrower as an account stated, except to the
extent that Borrower shall deliver to FINOVA written notice of any specific
exceptions thereto within thirty (30) days after the date such statement is
rendered.
2.3. All principal, interest, fees, commissions, charges, Costs and
Expenses incurred with or in respect of this Agreement or any supplement or
amendment hereto (all of which shall be cumulative and not exclusive) and any
and all Obligations shall be charged as an advance to Borrower's account as
maintained by FINOVA.
2.4. All Obligations shall be payable at FINOVA's office specified above
or at such other place as FINOVA may hereafter designate from time to time. If
requested, Borrower shall execute and deliver to FINOVA one or more promissory
notes in form and substance satisfactory to FINOVA to further evidence the
Obligations.
Section 3. INTEREST AND FEES
3.1. FINOVA is authorized to charge the Borrower's loan account as an
advance on the first day of each month as follows: (a) all Costs and Expenses;
(b) interest on Borrower's monthly average loan balance (inclusive of all
advances made pursuant to paragraph 2.1 of this Agreement together with all
costs and expenses charged to Borrower's account); and (c) Letter of Credit,
Guaranty or Acceptance Fees ("LC Fees"), if any. Interest shall be payable by
Borrower to FINOVA at the per annum Prime Rate (the "Prime Rate") plus 2.5% (the
"Interest Rate"). As used herein the term "Prime Rate" shall be deemed to mean
the prime commercial rate as published from time to time in the Wall Street
Journal, in effect on the date hereof (whether or not such rate is the lowest
rate available by FINOVA) and as same may be adjusted upwards or downwards from
time to time. The Interest Rate shall never be less than six (6%) percent per
annum nor greater than the highest rate permitted by law. Any change in the
Interest Rate shall become effective on the first day of the month following the
month in which the Prime Rate shall have been increased or decreased, as the
case may be. The Interest Rate shall be calculated based on a three hundred
sixty (360) day year for the actual number of days elapsed and shall be charged
to Borrower on all Obligations. All interest charged or chargeable to Borrower
shall be deemed as an additional advance and shall become part of the
Obligations.
3.2. In the event any amount to be advanced or charged to the Borrower
under this Agreement (together with any other agreement between FINOVA and the
Borrower) exceeds the amount available to Borrower for borrowing pursuant to any
percentage or sublimit set forth in this
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FINOVA Capital Corporation Security Agreement
Agreement (hereinafter sometimes referred to as an "Overadvance") on each of any
day in any month, the Interest Rate charged to the Borrower for that month on
all Obligations shall be at a rate which is one percent (1%) above the Interest
Rate otherwise applicable herein without regard as to whether any such
Overadvance is made with or without FINOVA's knowledge or consent. The Interest
Rate will be restored each time the Overadvance is fully repaid to FINOVA.
3.3. Borrower agrees that upon the occurrence of any Event of Default
(whether caused by the Borrower, an Account Debtor or others), the Interest Rate
on all Obligations shall immediately convert to the daily rate of two (2%)
percent per annum above the then applicable Interest Rate (the "Default Rate of
Interest") and all interest accruing hereunder together with all Obligations
shall thereafter be payable upon demand.
3.4. In no event shall the Interest Rate or the Default Rate of Interest
exceed the highest rate permitted under any applicable law or regulation. If any
part or provision of this Agreement is in contravention of any such law or
regulation such part or provision shall be deemed amended to conform thereto and
any payments of interest made in excess of such highest rate permitted, if any,
shall be deemed to be payments of principal Obligations to the extent of such
excess.
3.5. Borrower shall pay FINOVA an annual Facility Fee in the amount of
.5% of the Line of Credit extended by FINOVA to Borrower. The Facility Fee is
payable upon the execution and delivery of this Agreement and upon each annual
anniversary date of this Agreement until such time as this Agreement has been
terminated in accordance with its terms.
3.6. Borrower shall pay FINOVA an Audit Fee in the amount of $750 per day
for each auditor performing an examination of the Borrower's books and records,
such Audit Fee to be in addition to all other Costs and Expenses incurred by
FINOVA with regard to each such examination, all of which shall be deemed part
of the Obligations.
Section 4. GRANTING PROVISIONS
4.1. As security for the prompt performance, observance and payment in
full of all Obligations, Borrower hereby grants to FINOVA a continuing security
interest in, lien upon and right of setoff against, and Borrower hereby assigns,
transfers, pledges and sets over to FINOVA the following (which, together with
any of Borrower's other property in which FINOVA may at any time have a security
interest or lien, whether pursuant to any supplement or amendment hereto, or
otherwise, all of which are herein collectively referred to as the
"Collateral"): (a) All of Borrower's present and future Accounts; (b) all of
Borrower's monies, securities and other property and the proceeds thereof, now
or hereafter held or received by, or in transit to, FINOVA from or for Borrower,
or for the account of Borrower, whether for safekeeping, pledge, custody,
transmission, collection or otherwise, and all of Borrower's deposits (general
or special) including, but not limited to security deposits, balances, sums and
credits with FINOVA at any time existing or with a third party for the
Borrower's account; (c) all of Borrower's present and future right, title and
interest, and all of Borrower's present and future rights, remedies, security
and liens, in, to and in respect of the Accounts and other Collateral,
including, without limitation, rights of stoppage in transit, replevin,
repossession and reclamation and other rights and remedies of an unpaid vendor,
lienor or secured party, guarantees or other contracts of suretyship with
respect to the Accounts, deposits or other security for the obligation of any
Account Debtor, and credit and other insurance; (d) all of Borrower's present
and future right, title and interest in, to and in respect of all goods relating
to, or which by sale have resulted in, Accounts including, without limitation,
all goods described in invoices, documents, contracts or instruments with
respect to, or otherwise representing or evidencing, any Accounts or other
Collateral, including without limitation, all returned, reclaimed or
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FINOVA Capital Corporation Security Agreement
repossessed goods; (e) all of Borrower's present and future deposit accounts;
(f) all of Borrower's present and future books, records, ledger cards, computer
programs (including all software and data contained in or by any computer
whether in the possession of the Borrower or any other party) and other property
and general intangibles evidencing or relating to the Accounts and any other
Collateral or any Account Debtor, together with the file cabinets, containers,
tapes or disks, in which the foregoing are stored ("Records"); (g) all of
Borrower's presently owned or hereafter acquired inventory; (h) all of
Borrower's machinery and equipment, whether presently owned or hereinafter
acquired; (i) all other of Borrower's present and future general intangibles of
every kind and description, including, without limitation, customer lists, stock
options, patent, trademark and copyright applications, trade names and
trademarks, and the goodwill of the business symbolized thereby, patents,
copyrights, licenses and Federal, State and local tax refund claims, leases,
rents and insurance claims of all kinds; and (j) all proceeds of the foregoing,
in any form, including, without limitation, all claims against third parties for
loss or damage to or destruction of any or all of the foregoing. The security
interests granted herein shall remain effective whether or not the Collateral
covered thereby is acceptable to FINOVA or deemed by it to be ineligible for the
purposes of any loans or advances contemplated under this Agreement.
4.2. Borrower shall deliver to FINOVA a duplicate and/or original invoice,
and all original documents evidencing the delivery of goods or the performance
of services with regard to each Account, including but not limited to all
original contracts, orders, invoices, bills of lading, warehouse receipts,
delivery tickets and shipping receipts, together with schedules describing the
Accounts and/or written confirmatory assignments to FINOVA of each Account, in
form and substance satisfactory to FINOVA and duly executed by Borrower,
together with such other information as FINOVA may request. In no event shall
the making (or the failure to make) of any schedule or assignment or the content
of any schedule or assignment or Borrower's failure to comply with the
provisions hereof be deemed or construed as a waiver, limitation or modification
of FINOVA's security interest in, lien upon and assignment of the Collateral or
Borrower's representations, warranties or covenants under this Agreement or any
supplement or amendment hereto.
Section 5. ENFORCEMENT OF RIGHTS IN AND TO COLLATERAL
5.1. Until Borrower's authority to do so is curtailed or terminated at any
time by FINOVA in its sole and absolute discretion, Borrower shall (at
Borrower's expense) collect on FINOVA's behalf as FINOVA's property and in trust
for FINOVA, and deliver to FINOVA in their original form on the same date as the
date of the actual receipt thereof, all checks, drafts, notes, acceptances,
cash, wire transfers and any other evidences of payment, applicable to any
assigned Account ("Collection"). Five (5) working days shall be allowed
subsequent to receipt by FINOVA of all Collections (other than wire transfers)
to permit bank clearance and collection. Two (2) working days shall be allowed
subsequent to receipt by FINOVA of all wire transfers.
5.2. FINOVA or FINOVA's representatives shall at all times have free
access to and right of inspection of the Collateral and have full access to and
the right to examine and make copies of Borrower's Records, to confirm and
verify all Accounts, to perform general audits and to do whatever else FINOVA
deems necessary to protect FINOVA's interests. FINOVA may at any time remove
from Borrower's premises or require Borrower or its accountants or auditors to
deliver any Records to FINOVA. FINOVA may, at Borrower's cost and expense, use
any of Borrower's personnel, supplies, computer equipment (including all
computer programs, software and data) and space at Borrower's places of business
or at any other place as FINOVA may designate, as may be reasonably necessary
for the handling of collections.
5.3 . Merchandise received in settlement
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FINOVA Capital Corporation Security Agreement
of any assigned Account shall be received in trust for, segregated and delivered
to or for the account of FINOVA. All returns of merchandise, credits issued by
Borrower, claims or disputes of Account Debtors whether or not accepted by
Borrower or given an allowance of any nature shall be reported by Borrower to
FINOVA at least weekly. Each such report shall be accompanied by copies of all
documentation provided to Borrower in support of all merchandise returns,
credits, claims and disputes. Borrower shall immediately upon obtaining
knowledge thereof report to FINOVA all reclaimed, repossessed and returned
goods, Account Debtor claims and any other matter affecting the value,
enforceability or collectability of Accounts. At FINOVA's request, any goods
reclaimed or repossessed by or returned to Borrower will be set aside, marked
with FINOVA's name and held by Borrower (at Borrower's place of business or at
such other place as FINOVA may designate) for FINOVA's account and subject to
FINOVA's security interest.
5.4 All claims and disputes relating to Accounts shall be adjusted within
a reasonable time at Borrower's own cost and expense.
5.5. FINOVA is authorized and empowered at any time, with or without the
occurrence of an Event of Default, to compromise or extend the time for payment
of any Account, for such amounts and upon such terms as FINOVA may in its sole
discretion determine, and to accept the return of the merchandise represented by
any Account, all without notice to or consent by Borrower, and without
discharging or affecting Borrower's Obligations hereunder to any extent, and
Borrower will, upon demand, pay to FINOVA the amount of any allowance given or
authorized by FINOVA hereunder. FINOVA shall have the right (in addition to its
other rights hereunder or otherwise), with or without the occurrence of an Event
of Default and without notice to Borrower, to appropriate, set off and apply to
the payment of any or all of the Obligations, any portion or all of the
Collateral, in such manner as FINOVA shall in FINOVA's sole discretion
determine, to enforce payment of any Collateral, to settle, compromise or
release in whole or in part, any amounts owing on any Collateral, to prosecute
any action, suit or proceeding with respect to the Collateral, to extend the
time of payment of any and all Collateral, to make allowances and adjustments
with respect thereto, to issue credits in FINOVA's or Borrower's name, to sell,
assign and deliver the Collateral (or any part thereof) at public or private
sale, for cash, upon credit or otherwise at FINOVA's sole option and discretion,
and FINOVA may bid or become purchaser at any such sale, free from any right of
redemption which is hereby expressly waived. Any public or private sale of the
Collateral shall be deemed reasonable to the extent Borrower shall have received
written notice of such sale at least five (5) days prior to its occurrence and
shall not have delivered written objection to FINOVA.
SECTION 6. REPRESENTATIONS AND WARRANTIES
Borrower hereby represents, warrants and covenants to FINOVA the following
(which shall survive the execution and delivery of this Agreement), the truth
and accuracy of which, and continuing compliance with, being a continuing
condition of the making of all loans and advances hereunder by FINOVA or under
any supplement or amendment hereto:
6.1 . Borrower is and shall be the owner of the Collateral free and clear
of all liens, security interests, claims and encumbrances of every kind and
nature, except in FINOVA's favor or as otherwise consented to in writing by
FINOVA, and Borrower shall indemnify and defend FINOVA from and against all
cost, loss and expense with regard to the same. None of Borrower's Accounts nor
any of its inventory has been previously sold or assigned to any person, firm or
corporation and will not be sold or assigned, other than to FINOVA, at any time
during the term of this Agreement without first obtaining FINOVA's consent in
writing. Borrower shall not execute any security agreement or UCC financing
statement in favor of any other party or borrow against the security
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of any corporate asset, including but not limited to the Collateral, without
first obtaining FINOVA's consent in writing. FINOVA shall have the right of
first refusal to provide Borrower with financing in order to: (a) purchase or
lease of any property which is presently subject to a lien senior to that of
FINOVA=s and pursuant to financing which the Borrower seeks to replace; and (b)
acquire any property after the date of this Agreement with purchase money
financing. Such right of first refusal to be based upon substantially the same
terms and conditions offered to Borrower in writing by any other lender. FINOVA
shall respond to any written request for financing, which request shall include
a copy of the other lender's financing proposal or offer, within ten (10) days
of such written request. FINOVA shall not unreasonably withhold its consent to
such financing. FINOVA's right of first refusal shall become effective sixty
(60) days from the date of this Agreement.
6.2 . (a) Without first obtaining FINOVA's consent in writing Borrower
will not directly or indirectly sell, lease, transfer, abandon or otherwise
dispose of all or any portion of Borrower's property or assets (except in the
ordinary course of business) or consolidate or merge with or into any other
entity or permit any other entity to consolidate or merge with or into Borrower;
(b) Borrower will preserve, renew and keep in full force and effect
Borrower's existence and good standing as a corporation and its rights and
franchises with respect thereto;
(c) Borrower will continue to engage in business of the same type as
Borrower is engaged as of the date hereof; and
(d) Borrower will give FINOVA thirty (30) days prior written notice
of any proposed change in Borrower's corporate name which notice shall set forth
the new name.
6.3. Borrower's Records and principal executive office are maintained at
the address referred to herein. Borrower shall not change such location without
FINOVA's prior written consent and prior to making any such change, Borrower
agrees to execute any additional financing statements or other documents or
notices which FINOVA may require.
6.4 . Borrower shall maintain its shipping forms, invoices and other
related documents in a form satisfactory to FINOVA and shall maintain its books,
records and accounts in accordance with generally accepted accounting principles
consistently applied. Borrower agrees to furnish FINOVA monthly with accounts
receivable agings, inventory reports (if requested by FINOVA), and interim
financial statements (including balance sheet, statement of income and surplus
account, and cash flow statement) hereafter collectively referred to as "Interim
Financial Statements"), and to furnish FINOVA, at any time or from time to time
with such other information regarding Borrower's business affairs and financial
condition as FINOVA may reasonably request, including, without limitation, cash
flow and other projections, earnings forecasts, schedules, agings and reports.
Borrower hereby irrevocably authorizes and directs all accountants, auditors and
any other third parties to deliver to FINOVA, at Borrower's expense, copies of
Borrower's financial statements, papers related thereto, and other accounting
records of any kind or nature in their possession and to disclose to FINOVA any
information they may have regarding Borrower's business affairs and financial
condition. Borrower shall furnish FINOVA with audited financial statements
within ninety (90) days of the end of its fiscal year end certified by
independent public accountants selected by Borrower and as to whom FINOVA has no
objection. All financial statements and information shall fairly present
Borrower's financial condition and the results of Borrower's operations for the
periods in which the financial statements are furnished.
6.5 . Each Account represents a valid and legally enforceable indebtedness
based upon a bona fide sale and delivery of goods or rendition of services
usually dealt in by Borrower in the ordinary course of
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its business which has been finally accepted by the Account Debtor. Each Account
is and will be for a liquidated amount maturing as stated in the invoice
rendered to the Account Debtor who is unconditionally liable to make payment at
maturity of the amount stated in each invoice, document or instrument evidencing
the Account in accordance with the terms thereof, without offset, defense,
deduction, counterclaim, discount or condition. Every assigned Account, and any
evidence of indebtedness with respect thereto shall be paid in full at maturity.
If any Account is not paid in full at maturity, the amount of such unpaid
Account (whether in whole or in part) may be charged against and deducted from
any advance then or thereafter made by FINOVA to Borrower or, in the event
Borrower then has no borrowing availability, Borrower shall pay FINOVA, upon
demand, the full amount remaining unpaid thereon. Such payment or deduction
shall not constitute a reassignment, and FINOVA may retain the Account as
collateral for all Obligations of Borrower to FINOVA until the same have been
fully satisfied.
6.6. All statements made and all unpaid balances appearing in the
invoices, documents and instruments evidencing each Account are true and correct
and are in all respects what they purport to be and all signatures and
endorsements that appear thereon are genuine and all signatories and endorsers
have full capacity to contract. Each Account Debtor is solvent and financially
able to pay in full each Account when it matures. None of the transactions
underlying or giving rise to any Account shall violate any state or federal laws
or regulations, and all documents relating to the Accounts shall be legally
sufficient under such laws or regulations and shall be legally enforceable in
accordance with their terms and all recording, filing and other requirements of
giving public notice under any applicable law have been and shall be duly
complied with.
6.7. Borrower is solvent and will so remain. Borrower's federal, state and
local taxes of every kind and nature, including, but not limited to employment
taxes, are current, and there are no pending tax audits or examinations with
respect to Borrower's federal, state or local tax returns.
6.8. Borrower shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets prior to the date on which penalties attach thereto unless disputed in
good faith provided FINOVA is notified in writing and adequate reserves are
provided therefor. Borrower shall be liable for all taxes and penalties imposed
upon any transaction under this Agreement or any supplement or amendment hereto
or giving rise to the Accounts or any other Collateral or which FINOVA may be
required to withhold or pay for any reason. Borrower agrees to indemnify and
hold FINOVA harmless with respect thereto, and to repay to FINOVA on demand the
amount thereof, and until paid by Borrower such amounts shall be added to and
included in Borrower's Obligations.
6.9. There is no investigation by any state, federal or local agency
pending or threatened against Borrower and there is no action, suit, proceeding
or claim pending or threatened against Borrower or Borrower's assets or goodwill
or affecting any transactions contemplated by this Agreement, or any supplement
or amendment hereto, or any agreements, instruments or documents delivered in
connection herewith or therewith before any court, arbitrator, or governmental
or administrative body or agency which if adversely determined with respect to
Borrower would result in any material adverse change in Borrower's business,
properties, assets, goodwill or condition, financial or otherwise.
6.10. The execution, delivery and performance of this Agreement, any
supplement or amendment hereto, or any agreements, instruments and documents
executed and delivered in connection herewith, are within Borrower's corporate
powers, have been duly authorized, are not in contravention of law or the terms
of Borrower's charter, by-laws or other incorporation papers, or of any
indenture, agreement or undertaking to which Borrower is a party or by which
Borrower is bound.
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6.11. Borrower shall keep and maintain, at its sole cost and expense,
satisfactory and complete Records including records of all Accounts, all
payments received and credits granted thereon, and all other dealings therewith.
Upon the sale of goods or the rendering of services, Borrower shall make
appropriate entries in its books and records disclosing such assignments of
Accounts to FINOVA, and shall execute and deliver all papers and instruments,
and do all things necessary to effectuate this Agreement and facilitate the
collection of the Accounts. FINOVA is hereby vested with all of Borrower's
rights, securities and guarantees with respect to each Account, including the
right of stoppage in transit. Notwithstanding the failure of Borrower to execute
and deliver such written assignment as aforesaid, each Account created by
Borrower shall be deemed assigned to FINOVA and shall become its property.
6.12. If any Account Debtor of Borrower shall reject or return any of the
goods which created an assigned Account, Borrower shall promptly deliver the
same to FINOVA, or notify FINOVA and hold the same, separate and apart from
Borrower's stock, in trust for and subject to the order of FINOVA, and FINOVA
may take and sell the same, without notice, for such price and upon such terms
as it may, in its sole and absolute discretion, determine. Borrower shall remain
liable for any difference between the original invoice price and the net
proceeds of re-sale, after deducting any expenses incurred by FINOVA in
connection with such re-sale. Notwithstanding the foregoing, FINOVA may require
Borrower to pay to it the original invoice price of such rejected or returned
goods. In case any such goods shall be re-sold, the Account thereby created
shall be FINOVA's property and shall be deemed assigned hereunder.
6.13. All monies, Accounts and other property of Borrower which may come
into FINOVA's possession in any manner, and all sums to the credit of Borrower
may be retained by FINOVA and applied to the Obligations or any of the
Borrower's obligations owing to FINOVA's parent, any of its subsidiaries or any
of its affiliates. Borrower's obligations as set forth in the preceding sentence
shall remain applicable and enforceable as against Borrower should FINOVA be
merged into or with any other entity, including, but not limited to, its parent
corporation. Borrower absolutely and unconditionally guarantees and grants a
security interest to FINOVA in and to all of its Collateral to secure any and
all Obligations (including but not limited to all obligations of any entity
which is a parent, subsidiary or affiliate of Borrower, whether arising under
this Agreement or otherwise, and whether or not then due and however created)
which Borrower may at any time owe to FINOVA or its parent, any of its
subsidiaries or any of its affiliates.
6.14. FINOVA's agents and examiners shall have the right at any time
during business hours to review, inspect, examine, check and make copies of
extracts from Borrower's Records.
6.15. Borrower shall, at Borrower's expense, duly execute and deliver, or
shall cause to be duly executed and delivered, such further agreements,
instruments and documents, including, without limitation, additional security
agreements, mortgages, deeds of trust, deeds to secure debt, collateral
assignments, UCC financing statements or amendments and continuations thereof,
landlord's or mortgagee's waivers of liens and consents to the exercise by
FINOVA of all of its rights and remedies hereunder, under any supplement or
amendment hereto, or applicable law with respect to the Collateral. In addition,
Borrower shall do or cause to be done such further acts as may be necessary or
proper, in FINOVA's opinion, to evidence, perfect, maintain and enforce its
security interest and the priority thereof in and to the Collateral and to
otherwise effect the provisions and purposes of this Agreement or any supplement
or amendment hereto. Where permitted by law, Borrower hereby authorizes FINOVA
to execute and file one or more UCC financing statements covering the Collateral
signed only by FINOVA.
6.16. Borrower shall, at Borrower=s expense, maintain insurance covering
the Collateral
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FINOVA Capital Corporation Security Agreement
in such amounts and with such insurance companies as may be acceptable to FINOVA
in its sole and absolute discretion. Borrower shall have FINOVA named as
mortgagee, loss payee and additional insured on all such insurance policies. In
the event Borrower shall fail to maintain insurance acceptable to FINOVA, FINOVA
without notice, may obtain such insurance in the name of the Borrower and charge
Borrower's account with the costs and expenses of such insurance. All expenses
incurred by FINOVA with regard to such insurance policies shall be deemed part
of the Obligations.
6.17. The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation G issued by the Board of
Governors of the Federal Reserve System), and no proceeds of any loan or
advances made by FINOVA to Borrower pursuant to Section 2.1 will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock, or in any manner which might cause
such loan or advance or the application of such proceeds to violate (or require
any regulatory filing under) Regulation G, Regulation T, Regulation U, or
Regulation X of the Board of Governors of the Federal Reserve System, in each
case as in effect on the date or dates of such loan or advance and such use of
proceeds. Further, no proceeds of any loan or advance will be used to acquire
any security of a class which is registered pursuant to Section 12 of the
Securities Exchange Act of 1934.
6.18. The Borrower hereby agrees that it shall have a minimum net worth of
at least Three Million Five Hundred Thousand Dollars ($3,500,000) at the time of
the execution and delivery of this Agreement and for so long as this Agreement
is in effect.
Section 7. ADDITIONAL POWERS
7.1. FINOVA shall have the right at any time in its sole and absolute
discretion: (a) to notify Account Debtors that Borrower's Accounts have been
assigned to and are payable to FINOVA; and (b) to collect any and all Accounts
directly in its own name and charge all of its collection costs and expenses
including, but not limited to, its legal expenses to the Borrower's account as
part of the Obligations.
7.2 . Borrower hereby appoints FINOVA or FINOVA's designee as Borrower's
attorney-in-fact, at Borrower's own cost and expense, to exercise at any time
all or any of the following powers which, being coupled with an interest, shall
be irrevocable until all Obligations have been paid in full: (a) to redirect,
receive, open and dispose of all mail addressed to Borrower and to notify postal
authorities to change the address for delivery thereof to such address as FINOVA
may designate; (b) to execute and file in Borrower's name financing statements
and amendments under the UCC; (c) to receive, take, endorse, assign, deliver,
accept and deposit, in FINOVA's or Borrower's name, any and all checks, notes,
drafts, acceptances, money orders, remittances or other evidences of payment of
money or Collateral which may come into FINOVA's possession; (d) to sign
Borrower's name on any drafts against Account Debtors, assignments and
verifications of Accounts; (e) to transmit to Account Debtors notice of FINOVA's
interest therein and to request from such Account Debtors at any time, in
FINOVA's or Borrower's name or that of FINOVA's designee, information concerning
the Accounts and the amounts owing thereon; (f) to notify Account Debtors to
make payment directly to FINOVA; (g) to take or bring, in FINOVA's or Borrower's
name, and in FINOVA's sole and absolute discretion all steps, actions, suits or
proceedings deemed necessary or desirable by FINOVA to effect collection of the
Collateral; and (h) to do all other acts and things necessary to carry out this
Agreement. Borrower hereby releases FINOVA and FINOVA's officers, employees and
designees, from all liability arising from any act or acts under this Agreement
or in furtherance thereof, whether by omission or commission, and whether based
upon any error of judgment or mistake of law or fact.
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FINOVA Capital Corporation Security Agreement
Section 8 . EVENTS OF DEFAULT
8.1 . All Obligations shall be, at FINOVA's option, immediately due and payable
without notice or demand and the provision of this Agreement (or any supplement
or amendment hereto) as to future loans and advances to or for the benefit of
Borrower shall, at FINOVA's option, terminate forthwith upon the occurrence of
any one or more of the following events of default (the "Events of Default"):
(a) if Borrower shall fail to pay FINOVA when due any amounts owing to FINOVA
under any Obligation, or shall breach any of the terms, covenants, conditions or
provisions of this Agreement, any supplement or amendment hereto or any other
agreement between Borrower and FINOVA; (b) if any guarantor, endorser or other
person liable on the Obligations shall terminate or breach any of the terms,
covenants, conditions or provisions of any guaranty, endorsement or other
agreement of such person with, or in favor of FINOVA; (c) if any representation,
warranty, or statement of fact made to FINOVA at any time by Borrower or on
Borrower's behalf is false or misleading; (d) if Borrower, or any guarantor,
endorser or other person liable on the Obligations shall become insolvent, fail
to meet its or their debts as they mature, call a meeting of creditors or have a
creditors' committee appointed, make an assignment for the benefit of creditors,
commence or have commenced by or against Borrower or any guarantor, endorser or
other person liable on the Obligations any action or proceeding for relief under
any bankruptcy law (except that in the event an involuntary bankruptcy petition
is filed against the Borrower, such action may be dismissed within forty-five
(45) days from the date the petition is filed which dismissal shall be deemed to
cure such default, however, in any event the Borrower must promptly obtain an
order of the Bankruptcy Court authorizing the Borrower to continue to borrow
from FINOVA on a secured basis in accordance with this Agreement pending the
dismissal of the involuntary petition or entry of an order for relief), or if a
judgment is entered against Borrower or any guarantor, endorser or other person
liable on the Obligations (which has not been bonded or otherwise secured) or if
Borrower or any guarantor, endorser or other person liable on the Obligations
suspends or
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FINOVA Capital Corporation Security Agreement
discontinues doing business for any reason, or if a receiver, custodian or
trustee of any kind is appointed with regard to any property of Borrower or
guarantor, endorser or other person liable on the Obligations; (e) if there
shall be a material adverse change in Borrower's business, assets or condition
(financial or otherwise) from the date hereof; (f) if there is any change in the
voting control of Borrower; or (g) if at any time FINOVA shall, in FINOVA's sole
and absolute discretion, consider the Obligations insecure or any part of the
Collateral unsafe, insecure or insufficient and Borrower (or other person or
entity acting on Borrower's behalf) shall not on FINOVA's demand furnish other
Collateral or make payment on account, satisfactory to FINOVA. However,
notwithstanding anything to the contrary contained in the foregoing, Borrower
shall have fifteen (15) days after receipt of written notice from FINOVA to cure
any failure to comply with any of the requirements contained in paragraphs 6.1,
6.2(b), 6.4, 6.7 and 6.8 of this Agreement.
8.2 . In the event FINOVA seeks to take possession of all or any portion
of the Collateral by judicial process (including, but not limited to, FINOVA
obtaining an order of attachment, a temporary restraining order, a preliminary
or permanent injunction or otherwise) against the Borrower or with regard to the
Collateral, Borrower irrevocably waives: (a) the posting of any bond, surety or
security with respect thereto which might otherwise be required, (b) any demand
for possession prior to the commencement of any suit or action to recover the
Collateral, and (c) any requirement that FINOVA retain possession and not
dispose of any Collateral until after trial or final judgment.
8.3. Borrower agrees that the giving of ten (10) days' notice by FINOVA,
sent by ordinary mail, postage prepaid, to Borrower's address set forth herein,
designating the place and time of any public sale or of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be deemed to be reasonable notice thereof and Borrower waives any other
notice with respect thereto.
8.4. The net cash proceeds resulting from the exercise of any of FINOVA's
rights or remedies under this Agreement, under the UCC or otherwise, shall be
applied by FINOVA to the payment of the Obligations in such order as FINOVA may
elect, and Borrower shall remain liable to FINOVA for any deficiency. Without
limiting the generality of the foregoing, if FINOVA enters into any credit
transaction, directly or indirectly, in connection with the disposition of any
Collateral, FINOVA shall have the option, at any time, in FINOVA's sole and
absolute discretion, to reduce the Obligations by the amount of such credit
transaction or any part thereof or to defer the reduction thereof until actual
receipt by FINOVA of cash in connection therewith.
8.5. The enumeration of the foregoing rights and remedies is not intended
to be exclusive, and such rights and remedies are in addition to and not by way
of limitation of any other rights or remedies FINOVA may have under the UCC or
other applicable law. FINOVA shall have the right, in FINOVA's sole and absolute
discretion, to determine which rights and remedies, and in which order any of
the same, are to be exercised, and to determine which Collateral is to be
proceeded against and in which order, and the exercise of any right or remedy
shall not preclude the exercise of any others, all of which shall be cumulative.
8.6. No act, failure or delay by FINOVA shall constitute a waiver of any
of its rights or remedies. No single or partial waiver by FINOVA of any
provision of this Agreement or any supplement or amendment hereto, or breach or
default thereunder, or of any right or remedy which FINOVA may have shall
operate as a waiver of any other provision, breach, default, right or remedy or
of the same provision, breach, default, right or remedy on a future occasion.
8.7 . Borrower waives presentment, notice of dishonor, protest and notice
of protest of all instruments included in or evidencing any of the Obligations
or the Collateral and any and all notices or demands whatsoever (except as
expressly provided
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FINOVA Capital Corporation Security Agreement
herein). FINOVA may, at all times, proceed directly against Borrower or any
guarantor or endorser to enforce payment of the Obligations and shall not be
required to take any action of any kind to preserve, collect or protect FINOVA's
or Borrower's rights in the Collateral.
Section 9. MISCELLANEOUS
9.1. This Agreement shall become effective upon acceptance by FINOVA and
shall continue in full force and effect for a term ending two (2) years from the
date hereof (the "Renewal Date") and from year to year thereafter, unless and
until terminated pursuant to the terms hereof. In addition to FINOVA's right to
declare this Agreement immediately terminated at any time upon the occurrence of
an Event of Default, either party may terminate this Agreement on the Renewal
Date or on the anniversary of the Renewal Date in any year by giving the other
party at least sixty (60) days prior written notice by registered or certified
mail, return receipt requested. No termination of this Agreement, however, shall
relieve or discharge Borrower of Borrower's duties, obligations and covenants
hereunder until all Obligations have been paid in full and FINOVA's continuing
security interest in and to the Collateral shall remain in effect until all such
Obligations have been fully discharged.
9.2 If FINOVA terminates this Agreement upon the occurrence of an Event of
Default or if Borrower terminates this Agreement as to future transactions other
than on the Renewal Date or any anniversary o the Renewal Date, in view of the
impracticality and extreme difficulty in ascertaining FINOVA's actual damages
and by mutual agreement of the parties as to a reasonable calculation of
FINOVA's lost profits as a result thereof, Borrower hereby agrees that it shall
immediately pay to FINOVA by wire transfer, certified check or bank cashier's
check, Borrower's entire Obligations owing thereunder, plus liquidated damages
of an amount equal to: (a) four percent (4%) of the Line of Credit if this
Agreement is terminated prior to February 5, 1999; (b) two percent (2%) of the
Line of Credit if this Agreement is terminated during the period from February 6
1999, to February 5, 2000; and (c) one percent (1%) of the Line of Credit if
this Agreement is terminated during any subsequent term. Prior to its actual
receipt of payment as aforesaid, FINOVA shall be free to exercise, without
limitation, all of its rights under this Agreement or under any other agreement
it may then have with Borrower. Borrower's default of any provision under this
Agreement may be considered and construed at the sole option of FINOVA, as a
termination of this Agreement by Borrower. The liquidated damages provided for
in this paragraph 9.2 shall be deemed included in the Obligations and shall be
presumed to be the amount of damages sustained by FINOVA due to the Borrower's
early termination and Borrower agrees that such damages are reasonable and
appropriate under the circumstances currently existing.
9.3. This Agreement, and any supplement or amendment hereto and any
agreements, instruments or documents delivered or to be delivered in connection
herewith, constitute the entire agreement and understanding between FINOVA and
Borrower concerning the subject matter hereof and thereof and as such supersedes
all other prior or contemporaneous agreements, understandings, negotiations and
discussions, representations, warranties, commitments, offers, contracts,
whether written or oral, all of which are merged into this Agreement. FINOVA and
Borrower agree that neither party shall be bound by anything not expressed
herein, nor shall this Agreement be modified orally.
9.4. All amendments to and modifications of this Agreement shall be in
writing and signed by Borrower and FINOVA, which requirement shall not be
modified by oral agreement or by course of conduct.
9.5. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been duly given or made: (a) by hand,
immediately upon sending: (b) upon posting if by Federal Express, Express Mail
or any other overnight delivery service; or (c) upon posting if by certified
mail, return receipt requested. All notices, requests and demands are to be
given or made to the respective parties at the addresses set forth herein or at
such other
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FINOVA Capital Corporation Security Agreement
addresses as either party may designate in writing by notice in accordance with
the provisions of this paragraph.
9.6. Borrower and FINOVA each hereby waive all rights to a trial by jury in
any action or proceeding of any kind arising out of or relating to this
Agreement, any supplement or amendment hereto, the Obligations, the Collateral
or any such other transaction. Borrower hereby waives all of its rights of
setoff and rights to interpose any defenses and/or counterclaims in the vent of
any litigation with respect to any matter connected with this Agreement, any
supplement or amendment hereto, the Obligations, the Collateral or any other
transaction between the parties. Borrower hereby irrevocably consents and
submits to the jurisdiction and venue of the federal and state courts located in
Maricopa County, Arizona (without regard to an choice of law rules) in
connection with any action or proceeding of any kind arising out of or relating
to this Agreement, any supplement hereto, the Obligations, the Collateral or any
such other transaction. Borrower agrees that any action brought by it against
FINOVA whether with regard to this Agreement or otherwise shall be subject to
the jurisdiction and venue of the federal and state courts located in Maricopa
County, Arizona (without regard to any choice of law rules.)
9.7. In any litigation brought by FINOVA, Borrower waives personal service
of any summons, complaint or other process and agrees that service thereof may
be made by certified or registered mail directed to Borrower at Borrower's
address set forth below and service so made shall be complete two (2) days after
the same shall have been posted. Within twenty (20) days after such mailing,
Borrower shall appear ans answer such summons, complaint or other process,
failing which Borrower shall be deemed in default and judgement may be entered
by FINOVA against Borrower for the amount of the claim and for any other relief
requested therein.
9.8. This Agreement and all transactions hereunder are deemed to be
consummated in the State of Arizona and shall be governed by and interpreted in
accordance with the substantive and procedural laws of the State of Arizona
(without regard to any choice of law rules). If any part or provision of this
Agreement shall be determined to be invalid or in contravention of any
applicable law or regulation of the controlling jurisdiction, such part or
provision shall be severed without affecting the validity of any other part or
provision of this Agreement.
9.9. Borrower hereby consents to and authorized FINOVA to issue appropriate
press releases and to cause a tombstone to be published announcing the
consummation of this transaction and the aggregate amount thereof.
9.10. This Agreement shall inure to and be binding upon the parties hereto
and their successors and assigns.
ATTEST: AZUREL, LTD.
/s/ Xxx Xxxxxxxxxx By: /s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: PRIVATE LABEL COSMETICS, INC.
/s/ Xxx Xxxxxxxxxx By: /s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: CAMBRIDGE BUSINESS SERVICES CORPORATION
/s/ Xxxxx XxXxxxxx By: /s/Xxxxxx Xxxxxx
Xxxxx XxXxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: SCENT 1-2-3, INC.
/s/Xxx Xxxxxxxxxx By: /s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: P.L.C. SPECIALTIES, INC.
/s/Xxx Xxxxxxxxxx By: /s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: INTERNATIONAL COSMETIC GROUP, INC.
/s/Xxx Xxxxxxxxxx By:/s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
ATTEST: FASHION LABORATORIES, INC.
/s/Xxx Xxxxxxxxxx By: /s/Xxxxxx Xxxxxx
Xxx Xxxxxxxxxx, Secretary Xxxxxx Xxxxxx, Chairman of the Board
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ACCEPTED:
FINOVA CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Underwriter
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