Exhibit 4.1
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT is dated as of May 22, 2004 between CITN
Investment, Inc. (Lender), and CT Holdings, Inc., a Delaware corporation
(Borrower), 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000. The
parties agree as follows:
1. DEFINITIONS AND CONSTRUCTIONS
1.1 Terms. In addition to the terms that are defined within this Agreement,
the following terms shall have the following definitions when used in this
Agreement:
Agreement means this Loan and Security Agreement and any riders, addenda,
extensions, supplements, amendments or modifications to or in connection with
this Loan and Security Agreement.
Bankruptcy Code means the United States Bankruptcy Code (11 U.S.C. Sections 101
et seq.), as amended, and any successor statute.
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Business Day means any day which is not a Saturday, Sunday or other day on which
banks in the State of Texas are authorized or required to close.
Code means the Texas Uniform Commercial Code, as amended from time to time.
Collateral means all of the assets of the Borrower, including without limitation
all of the securities of Parago, Inc. and River Logic, Inc. owned by Borrower
and all proceeds and products, whether tangible or intangible, of the foregoing,
and any and all tangible or intangible property resulting from the sale or other
disposition of the Collateral, or any portion thereof or interest therein, and
the proceeds thereof.
Event of Default means each of the events specified in Section 8.
Lender Expenses means all of the following: costs and expenses (including taxes
or assessments) required to be paid by Borrower under any of the Loan Documents
which are paid or advanced by Lender in connection with Lender's transactions
with Borrower; costs and expenses incurred by Lender in the disbursement or
collection of funds to or from Borrower; charges resulting from the dishonor of
checks; costs and expenses paid or incurred by Lender to correct any default or
enforce any provision of the Loan Documents, or in gaining possession of,
maintaining, handling, preserving, storing, shipping, selling, preparing for
sale or advertising to sell the Collateral, or any portion thereof, irrespective
of whether a sale is consummated; costs and expenses paid or incurred by Lender
that result from third party claims against Lender covered by Borrower's
indemnification of Lender in Section 11.4; costs and expenses paid or incurred
by Lender in enforcing or defending the Loan Documents; and Lender's reasonable
attorneys fees and expenses incurred in advising, structuring, drafting,
reviewing, administering, amending, terminating, enforcing, defending or
otherwise representing Lender in connection with the Loan Documents or the
Obligations (including attorneys fees and expenses incurred in connection with a
workout, a restructuring, an action to lift the automatic stay of Section 362 of
the Bankruptcy Code, any other action or participation by Lender in an
Insolvency Proceeding concerning Borrower or any defense or participation by
Lender in any lender liability, preference or fraudulent conveyance actions).
Insolvency Proceeding means any proceeding commenced by or against any Person
under any provision of the Bankruptcy Code or under any other bankruptcy or
insolvency law, including assignments for the benefit of creditors, formal or
informal moratoria, compositions, extensions generally with its creditors or
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proceedings seeking reorganization, liquidation, arrangement or other similar
relief.
Loan Documents means, collectively, this Agreement, any Notes, any security or
pledge agreements, or other encumbrances or agreements which secure the
Obligations, and any other agreement entered into between Borrower and Lender
relating to or in connection with this Agreement.
Maximum Rate means the maximum non-usurious rate of interest permitted by
applicable law that at any time, or from time to time, may be contracted for,
taken, reserved, charged or received on the Obligations or, to the extent
permitted by applicable law, under such applicable laws that may hereafter be in
effect and which allow a higher maximum non-usurious interest rate than
applicable laws now allow. Notwithstanding any other provision in this
Agreement, the Maximum Rate shall be calculated on a dally basis (computed on
the actual number of days elapsed over a year of 365 or 365 days, as the case
may be).
Note means any promissory note made by Borrower to the order of Lender
concurrently herewith or at any time hereafter.
Obligations means all loans, advances, debts, liabilities (including all amounts
charged to Borrower's loan account pursuant to any agreement authorizing Lender
to charge Borrower's loan account), obligations, fees, covenants and duties
owing by Borrower to Lender of any kind and description (whether pursuant to or
evidenced by the Loan Documents), whether direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, including
any interest that, but for the provisions of the Bankruptcy Code, would have
accrued, and all Lender Expenses which Borrower is required to pay or reimburse
pursuant to the Loan Documents, by law or otherwise.
Term Loan means any term loan made by Lender to Borrower, evidenced by and
repayable in accordance with the terms and conditions of a Note.
1.2 Construction. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular and vice versa, the
term "including" is not limiting and the term "or" has the inclusive meaning
generally represented by the phrase "and/or". The words hereof, herein, hereby,
hereunder, and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. Section,
subsection, clause, exhibit and schedule references are to this Agreement unless
otherwise specified. Any reference in this Agreement or in any of the other
Loan Documents to this Agreement or any of the other Loan Documents shall
include all alterations, amendments, changes, extensions, modifications,
renewals, replacements, substitutions and supplements thereto and thereof. All
exhibits, addenda and schedules to this Agreement shall be deemed incorporated
herein by reference. Any terms used in this Agreement which are defined in the
Code shall be construed and defined as set forth in the Code unless otherwise
defined herein.
2. ADVANCES AND TERMS OF PAYMENT
2.1 Loans. Upon request of the Borrower, Lender may, in its sole discretion,
make a Term Loan to Borrower in the original principal amount of One Hundred
Sixty Five Thousand Dollars ($165,000) to be evidenced by and repayable in
accordance with the terms and conditions of a Secured Convertible Promissory
Note. In Lender's sole discretion, Lender may also make additional Term Loans
after the date of this Agreement in an aggregate amount of up to Six Hundred
Thousand Dollars ($600,000) (the "Maximum Loan Amount"). Lender is under no
obligation to advance any funds. Such Term Loan and any other Term Loan
subsequently made by Lender to Borrower shall constitute Obligations and shall
be secured by the Collateral. The occurrence of a default under such Note or
under any Note made in respect of any subsequent Term Loan shall constitute an
Event of Default hereunder.
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2.2 Initial Advance. Lender agrees that, upon satisfaction on or before May
24, 2004 of each of the conditions precedent set forth in this Agreement, Lender
shall advance to Borrower, on Borrower's request, the amount of Two Hundred
Thousand Dollars ($200,000) as Lender's initial Advance under this Agreement,
and all future Advances under this Agreement shall be deemed to be and
constitute, together with the initial Advance, one general obligation of
Borrower and a single loan from Lender to Borrower, and shall be secured by
Lender's security interest in and lien upon all of the Collateral, and by all
other security interests and liens heretofore, now or at any time or times
hereafter granted by Borrower to Lender.
2.3 Overadvances. All Advances made hereunder shall be added to and deemed
part of the Obligations when made. If, at any time and for any reason, the
aggregate amount of the outstanding Revolving Advances exceeds the dollar or
percentage limitations contained in Section 2. 1A (an Overadvance), then
Borrower shall, upon demand by Lender, immediately pay to Lender, in cash, the
amount of such excess.
2.4 Authorization to Make Revolving Advances. Borrower hereby authorizes
Lender to make Advances based upon telephonic or other instructions received
from Borrower, or, at the sole discretion of Lender without instructions from or
notice to Borrower, if such Advances are necessary to satisfy any Obligations.
All requests for Advances hereunder shall specify the date on which the
requested Advance is to be made (which day shall be a business day in Dallas,
Texas) and the amount of the requested Advance. Requests received after 11:00
a.m. Central time on any day shall be deemed to have been made as of the opening
of business on the immediately following Business Day. All Advances made under
this Agreement shall be conclusively presumed to have been made to, at the
request of, and for the benefit of Borrower when deposited to the credit of
Borrower or otherwise disbursed in accordance with the instructions of Borrower
or in accordance with the terms and conditions of this Agreement.
2.5 Interest. Basic Rate; Default Rate. Except where specified to the
contrary in any Loan Document, the outstanding principal balances of all
Obligations shall bear interest at the lesser of (a) interest at the Maximum
Rate or (b) the rate of eight percent (8%) per annum. The outstanding principal
balances of all Obligations shall bear interest, from and after written notice
by Lender to Borrower of the occurrence of an Event of Default and without
constituting a waiver of any such Event of Default, at the lesser of (a)
interest at the Maximum Rate or (b) the rate of eighteen percent (18%) per
annum; provided, however, that in the event an Insolvency Proceeding is
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commenced by or against Borrower, Lender may charge such default rate of
interest without providing written notice thereof to Borrower. All interest
payable under the Loan Documents shall be computed on the basis of a three
hundred sixty (360) day year for the actual number of days elapsed, based on the
aggregate principal amount of the Obligations that are outstanding on each day.
Interest shall continue to accrue until all of the Obligations are paid in full.
2.6 Maximum Charges. Notwithstanding any provision contained in this Agreement
or any of the other Loan Documents, in no contingency or event whatsoever shall
the aggregate of all amounts that are contracted for, charged or collected
pursuant to the terms of this Agreement or any of the other Loan Documents and
that are deemed interest under applicable law exceed that highest rate
permissible under any applicable law. No agreements, conditions, provisions or
stipulations contained in this Agreement or any of the other Loan Documents or
the exercise by Lender of the right to accelerate the payment or maturity of all
or any portion of the Obligations, or the exercise of any option whatsoever
contained in any of the Loan Documents, or the prepayment by Borrower of any of
the Obligations, or the occurrence of any contingency whatsoever, shall entitle
Lender to charge or receive in any event, interest or any charges, amounts,
premiums or fees deemed interest by applicable law (such interest, charges,
amounts, premiums and fees referred to in this Section collectively as Interest)
in excess of the Maximum Rate and in no event shall Borrower be obligated to pay
Interest exceeding the Maximum Rate, and all agreements,
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conditions or stipulations, if any, which may in any event or contingency
whatsoever operate to bind, obligate or compel Borrower to pay Interest
exceeding the Maximum Rate shall be without binding force or effect, at law or
in equity, to the extent only of the excess of Interest over the Maximum Rate.
If any Interest is charged or received in excess of the Maximum Rate (Excess),
Borrower acknowledges and stipulates that any such charge or receipt shall be
the result of an accident and bona fide error, and such Excess, to the extent
received, shall be applied first to reduce the principal Obligations and the
balance, if any, returned to Borrower, it being the intent of the parties hereto
not to enter at any time into a usurious or otherwise illegal relationship. The
right to accelerate the maturity of any of the Obligations does not include the
right to accelerate any interest that has not otherwise accrued on the date of
such acceleration, and Lender does not intend to collect any unearned interest
in the event of any such acceleration. Borrower recognizes that, with
fluctuations in the rates of interest set forth above and the Maximum Rate, such
an unintentional result could inadvertently occur but for the agreements of the
parties to limit interest to the Maximum Rate and to apply, credit or return any
Excess as provided herein. All monies paid to Lender hereunder or under any of
the other Loan Document, whether at maturity or by prepayment, shall be subject
to any rebate of unearned interest as and to the extent required by applicable
law. By the execution of this Agreement, Borrower covenants that (a) the credit
or return of any Excess shall constitute the acceptance by Borrower of such
Excess, and (b) Borrower shall not seek or pursue any other remedy, legal or
equitable, against Lender, based in whole or in part upon contracting for,
charging or receiving any Interest in excess of the Maximum Rate. For the
purpose of determining whether or not any Excess has been contracted for,
charged or received by Lender, all Interest at any time contracted for, charged
or received from Borrower in connection with this Agreement shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and spread in
equal parts throughout the full term of the Obligations. Borrower and Lender
shall, to the extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee or premium rather than as Interest and
(b) exclude voluntary prepayments and the effects thereof. The provisions of
this Section shall be deemed to be incorporated into every Loan Document
(whether or not any provision of this Section is referred to therein). All such
Loan Documents and communications relating to any Interest owed by Borrower and
all figures set forth therein shall, for the sole purpose of computing the
extent of the Obligations, be automatically recomputed by Borrower, and by any
court considering the same, to give effect to the adjustments or credits
required by this Section. Notwithstanding any provisions contained in this
Agreement or any of the other Loan Documents providing that interest is to be
computed on the basis of a 360 day year, interest shall never exceed the Maximum
Rate computed on the basis of a 365 or 366 year, as the case may be. In no
event shall Borrower be obligated to pay any of the fees payable under this
Agreement to the extent that the amount of such fees otherwise payable under
such sections, when added to the amount of interest charged hereunder or
otherwise, would result in the assessment or collection of sums deemed to be
Interest in excess of the Maximum Rate (it being the express intent and
understanding of the parties hereto that such fees not constitute interest or a
charge for the use or detention of money).
2.7 Repayment of the Obligations. All of the Obligations shall be payable by
Borrower to Lender upon the earliest of (a) the receipt by Lender or Borrower of
any collections or proceeds of any of the Collateral, to the extent of such
collections or proceeds, (ii) the occurrence of an Event of Default in
consequence of which Lender elects to accelerate the maturity and payment of the
Obligations or (iii) termination of the Loan Agreement pursuant to Section 3.1
or Section 3.2; provided, however, that any portion of the Obligations payable
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on demand under any of the Loan Documents shall be paid on demand. All Notes
shall be due and payable upon termination of the Loan Agreement.
2.8 Conversion Rights. The Lender shall have the right to convert any or all
of the Obligations into up to 71,000,000 shares of common stock of the Borrower
(if the Maximum Loan Amount is advanced to the Borrower), and a pro rata amount
of such number of shares in the event less than the Maximum Loan Amount is
advanced to the Borrower.
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3. TERM OF AGREEMENT AND EARLY TERMINATION
3.1 Term. This Agreement shall become effective in accordance with Section
14.1 and shall continue in full force and effect for a term ending two (2) years
after the date hereof and shall be deemed automatically renewed for successive
terms of one (1) year thereafter until terminated as of the end of the initial
term or any renewal term (each a Term) by either party giving the other written
notice at least sixty days prior to the end of the then current Term.
3.2 Effect of Termination. Upon termination of this Agreement, all of the
Obligations shall be immediately due and payable in full. No termination of
this Agreement shall relieve or discharge Borrower of Borrower's duties,
obligations and covenants hereunder until all of the Obligations have been fully
and indefeasibly paid and satisfied, and Lender's continuing security interest
in the Collateral shall remain in effect until all of the Obligations have been
fully and indefeasibly paid and satisfied.
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest. Borrower hereby grants to Lender a continuing
security interest in all presently existing and hereafter acquired or arising
Collateral to secure prompt repayment of any and all Obligations and in order to
secure prompt performance by Borrower of each and all of its covenants and
duties under the Loan Documents. Lender's security interest in the Collateral
shall attach to all Collateral without further act on the part of Lender or
Borrower. Other than sales of Inventory to buyers in the ordinary course of
business, Borrower has no authority, express or implied, to dispose of any item
or portion of the Collateral.
4.2 Negotiable Collateral. In the event that any Collateral, including
proceeds, is evidenced by or consists of negotiable Collateral, Borrower shall
immediately endorse and assign such negotiable Collateral to Lender and deliver
physical possession of such negotiable Collateral to Lender.
4.3 Delivery of Additional Documentation Required. Borrower shall execute and
deliver to Lender, concurrently with Borrower's execution and delivery of this
Agreement and at any time thereafter at the request of Lender, all security
agreements, pledges, assignments, endorsements of certificates, affidavits,
reports, notices, letters of authority, and all other documents that Lender may
reasonably request, in form satisfactory to Lender, to perfect and continue
perfected Lender's security interest in the Collateral and in order to fully
consummate all of the transactions contemplated hereunder and under the Loan
Documents.
4.4 Power of Attorney. Borrower hereby irrevocably designates, makes,
constitutes and appoints Lender (and any of Lender's agents designated by
Lender) as Borrower's true and lawful attorney-in-fact, and Lender, or Lender's
agent, may, without notice to Borrower and in either Borrower's or Lender's
name, but at the cost and expense of Borrower, at such time or times as Lender
in its sole discretion may determine: (a) take control, in any manner, of any
item of payment or proceeds relating to any Collateral; (b) prepare, file and
sign Borrower's name to any notice of lien, assignment or satisfaction of lien
or similar document in connection with any of the Collateral; (c) sign
Borrower's name on any of documents described in Section 4.3 or on any other
similar documents to be executed, recorded or filed in order to perfect or
continue perfected Lender's security interest in the Collateral; (d) sign
Borrower's name on any documents, instruments or agreements relating to the
Collateral; (e) endorse Borrower's name on any checks, notes, acceptances, money
orders, drafts or other items of payment or proceeds relating to any Collateral
that may come into Lender's possession and deposit the same to the account of
Lender for application to the Obligations; (f) do all other acts and things
necessary, in Lender's determination, to fulfill Borrower's obligations under
this Agreement or any of the other Loan Documents; (g) at any time that an Event
of Default has occurred and is continuing, notify the post office authorities to
change the address for delivery of Borrower's mail to an address designated by
Lender, to receive and open all mail
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addressed to Borrower, and to retain all mail relating to the Collateral and
forward all other mail to Borrower; (h) at any time that an Event of Default has
occurred and is continuing, use the information recorded on or contained in any
data processing equipment and computer hardware and software relating to the
Collateral and to which Borrower has access; and (i) at any time that an Event
of Default has occurred and is continuing, sell or assign any Collateral upon
such terms, for such amounts and at such time or times as Lender deems
advisable. The appointment of Lender as Borrower's attorney-in-fact and each
and every one of Lender's rights and powers, being coupled with an interest, is
irrevocable until all of the Obligations have been fully repaid and performed
and this Agreement has been terminated.
4.5 Right To Inspect. Lender, through any of his agents, shall have the right
at any time or times during Borrower's business hours, to inspect Borrower's
Books in order to verify the amount or condition of, or any other matter
relating to, the Collateral. If an Event of Default has occurred or if Lender
reasonably believes that an Event of Default has occurred, Lender may conduct
any of the inspections referenced in this Section at any time without regard to
Borrower's or any third party's business hours.
5. REPRESENTATIONS AND WARRANTIES. Borrower makes the following
representations and warranties to Lender and each such representation and
warranty shall be deemed to be repeated with each Advance made by Lender and
shall be conclusively presumed to have been relied on by Lender regardless of
any investigation made or information possessed by Lender. The following
representations and warranties shall be cumulative and in addition to any and
all other representations and warranties which Borrower shall now or hereafter
give, or cause to be given, to Lender.
5.1 No Prior Encumbrances; Security Interests. Borrower has good and
indefeasible title to the Collateral, free and clear of liens, claims, security
interests or encumbrances.
5.2 Due Authorization; No Conflict. The execution, delivery and performance of
the Loan Documents to which Borrower is a party are within Borrower's powers and
are not in conflict with nor create a default under any material agreement to
which Borrower is a party.
5.3 Litigation. There are no actions or proceedings pending by or against
Borrower before any court or administrative agency and Borrower has no knowledge
or notice of any pending, threatened or imminent litigation, governmental
investigations, or claims, complaints, actions or prosecutions involving
Borrower or any guarantor of the Obligations, except for ongoing collection
matters in which Borrower is the plaintiff and such matters as have been
disclosed to Lender in writing.
6. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that during the term
of this Agreement and until payment in full of the Obligations, and unless
Lender shall otherwise consent in writing, Borrower shall do all of the
following:
6.1 No Offsets or Counterclaims. All payments hereunder and under the other
Loan Documents made by or on behalf of Borrower shall be made without offset or
counterclaim, and Borrower hereby waives any right to offset, against the
repayment of the Obligations, any claims it may have against Lender.
6.2 Compliance with Law. Borrower shall comply with the requirements of all
applicable laws, rules, regulations and orders of governmental authorities
relating to Borrower and the conduct of his business.
7. NEGATIVE COVENANTS. Borrower covenants and agrees that during the term of
this Agreement and until payment in full of the Obligations, Borrower will not,
without Lender's prior written consent, create, incur, assume or permit to exist
any security interest, lien, pledge, mortgage or
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encumbrance on any Collateral in which Lender holds a lien, except the security
interests granted to Lender by Borrower.
8. EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "Event of Default" under this Agreement:
8.1 Failure to Pay. Borrower fails to pay when due and payable, or when
declared due and payable, any portion of the Obligations (whether principal,
interest, fees and charges due Lender, reimbursement of Lender Expenses, or
other amounts constituting Obligations);
8.2 Failure to Perform. Borrower fails or neglects to perform, keep or observe
any term, provision, condition, representation, warranty, covenant or agreement
contained in this Agreement, in any of the other Loan Documents or in any other
present or future agreement between Borrower and Lender;
8.3 Misrepresentation. Any misstatement or misrepresentation now or hereafter
exists in any warranty, representation, statement or report made to Lender by
Borrower or any officer, employee, agent or director of Borrower, or if any such
warranty or representation is withdrawn by any of them;
8.4 Misrepresentation of Collateral. Any writing, document, aging, certificate
or other evidence of the Collateral shall be incomplete, incorrect or misleading
at the time the same is furnished to Lender;
8.5 Material Adverse Change. There is a material adverse change in Borrower's
business or financial condition;
8.6 Material Impairment. There is a material impairment of the prospect of
repayment of any portion of the Obligations owing to Lender or a material
impairment of the value or priority of Lender's security interests in the
Collateral;
8.7 Levy or Attachment. Any material portion of Borrower's assets is attached,
seized, subjected to a writ or distress warrant, or is levied upon, or comes
into the possession of any judicial officer;
8.8 Insolvency by Borrower. An Insolvency Proceeding is commenced by Borrower;
8.9 Insolvency Against Borrower. An Insolvency Proceeding is commenced against
Borrower;
8.10 Injunction Against Borrower. Borrower is enjoined, restrained or in any
way prevented by court order from continuing to conduct all or any material part
of its business affairs;
8.11 Government Lien. A notice of lien, levy or assessment is filed of record
with respect to any of Borrower's assets by the United States government, or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, or any taxes or debts owing at any time
hereafter to any one or more of such entities becomes a lien, whether xxxxxx or
otherwise, upon any of Borrower's assets and the same is not paid on the payment
date thereof;
8.12 Judgment. A judgment is entered against Borrower;
8.13 Cross Default to Material Agreements. There is a default in any material
agreement to which Borrower is a party with one or more third parties or by
which Borrower or his property or assets are bound;
Notwithstanding anything contained in this Section 8 to the contrary, Lender
shall refrain from exercising
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its rights and remedies and an Event of Default shall not be deemed to have
occurred by reason of the occurrence of any of the events set forth in Sections
8.7, 8.9 8.11 or 8.12 of this Agreement if, within ten days from the date
thereof, the same is released, discharged, dismissed, bonded against or
satisfied; provided, however, Lender shall not be obligated to make Advances to
Borrower during such period.
9. LENDER'S RIGHTS AND REMEDIES
9.1 Rights and Remedies. Upon the occurrence of an Event of Default, Lender
may, at its election, without notice of its election and without demand, do any
one or more of the following, all of which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this Agreement, any of the
other Loan Documents or otherwise, immediately due and payable in full;
(b) Cease advancing money or extending credit to or for the benefit of Borrower
under this Agreement, any of the other Loan Documents or any other agreement
between Borrower and Lender;
(c) Terminate this Agreement and any of the other Loan Documents as to any
future liability or obligation of Lender, but without affecting Lender's rights
and security interest in the Collateral and without affecting the Obligations;
(d) Settle or adjust disputes and claims directly with Account Debtors for
amounts and upon terms which Lender considers advisable and, in such cases,
Lender will credit Borrower's loan account with only the net amounts received by
Lender in payment of such disputed Accounts, after deducting all Lender Expenses
incurred or expended in connection therewith;
(e) Without notice to or demand upon Borrower or any guarantor, make such
payments and do such acts as Lender considers necessary or reasonable to protect
its security interest in the Collateral. Borrower agrees to assemble the
Collateral if Lender so requires and to deliver or make the Collateral available
to Lender at a place designated by Lender. Borrower authorizes Lender to enter
any premises where the Collateral is located, to take and maintain possession of
the Collateral, or any part of it, and to pay, purchase, contest or compromise
any encumbrance, charge or lien that in Lender's determination appears to be
prior or superior to its security interest and to pay all expenses incurred in
connection therewith. With respect to any of Borrower's owned premises,
Borrower hereby grants Lender a license to enter into possession of such
premises and to occupy the same, without charge, in order to exercise any of
Lender's rights or remedies provided herein, at law, in equity, or otherwise;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale,
advertise for sale and sell (in the manner provided for herein) the Collateral.
Lender is hereby granted a license or other right to use, without charge,
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale and selling any Collateral. Borrower's
rights under all licenses and all franchise agreements shall inure to Lender's
benefit;
(g) Sell the Collateral at either a public or private sale, or both, by way of
one or more contracts or transactions, for cash or on terms, in such manner and
at such places (including Borrower's premises) as Lender determines is
commercially reasonable. It is not necessary that the Collateral be present at
any such sale;
(h) Lender shall give notice of the disposition of the Collateral as follows:
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(1) Lender shall give the Borrower a notice in writing of the time and
place of public sale or, if the sale is a private sale or some other disposition
other than a public sale is to be made, then the time on or after which the
private sale or other disposition is to be made;
(2) The notice shall be personally delivered or mailed, postage prepaid,
to Borrower as provided in Section 12, at least five (5) calendar days before
the date fixed for the sale, or at least five (5) calendar days before the date
on or after which the private sale or other disposition is to be made, unless
the Collateral is perishable or threatens to decline speedily in value. Notice
to Persons other than Borrower claiming an interest in the Collateral shall be
sent to such addresses as they have furnished to Lender;
(i) Lender may credit bid and purchase at any public sale;
(j) Any deficiency that exists after disposition of the Collateral as provided
above shall be paid immediately by Borrower. Any excess will be remitted
without interest by Lender to the party or parties legally entitled to such
excess; and
(k) In addition to the foregoing, Lender shall have all rights and remedies
provided by law and any rights and remedies contained in any other Loan
Documents. All such rights and remedies shall be cumulative.
9.2 No Waiver. No delay on the part of Lender in exercising any right, power
or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege under this Agreement
or otherwise, preclude other or further exercise of the right, power or
privilege or the exercise of any other right, power or privilege.
10. TAXES AND EXPENSES REGARDING THE COLLATERAL. If Borrower fails to pay any
monies (whether taxes, assessments, insurance premiums or otherwise) due to
third parties regarding the Collateral, or fails to make any deposits or furnish
any required proof of payment or deposit, or fails to perform any of Borrower's
other covenants under the terms of this Agreement, then in its discretion and
without prior notice to Borrower, Lender may do any or all of the following:
(a) make any payment which Borrower has failed to pay or any part thereof; (b)
set up such reserves in Borrower's loan account as Lender deems necessary to
protect Lender from the exposure created by such failure; or (c) take any other
action deemed necessary by Lender to preserve and protect its interests and
rights under this Agreement. Any payments made by Lender shall not constitute
an agreement by Lender to make similar payments in the future or a waiver by
Lender of any Event of Default under this Agreement. Lender need not inquire as
to, or contest the validity of, any such expense, tax, security interest,
encumbrance or lien and the receipt of notice for the payment thereof shall be
conclusive evidence that the same was validly due and owing.
11. WAIVERS AND INDEMNIFICATIONS
11.1 Waivers. Borrower waives demand, protest, notice of protest, notice of
default or dishonor, notice of payment and nonpayment, notice of any default,
notice of nonpayment at maturity, notice of intention to accelerate and notice
of acceleration, so that Lender may exercise any and all rights and remedies
under the Loan Agreement or any other Loan Documents, or as otherwise provided
at law or in equity, immediately upon the occurrence of any Event of Default,
without any further notice, grace or opportunity to cure whatsoever. Borrower
further waives notice prior to Lender's taking possession or control of the
Collateral, any bond or security which might be required by any court prior to
allowing Lender to exercise any of Lender's remedies, and the benefit of all
valuation, appraisement and exemption laws.
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11.2 No Marshaling. Borrower, on its own behalf and on behalf of its successors
and assigns, hereby expressly waives all rights, if any, to require a marshaling
of assets by Lender or to require that Lender first resort to some or any
portion of the Collateral before foreclosing upon, selling or otherwise
realizing on any other portion thereof.
11.3 Lender's Liability for Collateral. Lender shall not in any way or manner be
liable or responsible for: (a) the safekeeping of the Collateral; (b) any loss
or damage thereto occurring or arising in any manner or fashion from any cause;
(c) any diminution in the value thereof; or (d) any act or default of any
carrier, warehouseman, bailee, forwarding agency or other Person. All risk of
loss, damage or destruction of the Collateral shall be borne by Borrower.
11.4 Indemnification. Borrower shall defend, indemnify and hold harmless
Lender, its successors, agents and assigns, from and against any and all claims,
suits, actions, causes of action, debts, liabilities, damages, losses,
obligations, charges, judgments and expenses, including attorneys fees and
costs, of any nature whatsoever, in any way relating to or arising from the
transactions contemplated by this Agreement or any Loan Document (including
those relating to or arising from any alleged or actual violation of any law,
and including those relating to or arising from any intangibles tax, stamp tax,
franchise tax, indebtedness tax and any other tax that may be payable by Lender
or Borrower on account of execution or delivery of this Agreement or any of the
other Loan Documents or the creation of any of the Obligations); provided that
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the foregoing indemnification shall not extend to liabilities, damages, losses,
obligations, judgments and expenses proximately caused by the gross negligence
or willful misconduct of Lender or his agents, participants or assigns. This
indemnification provision shall survive the termination of this Agreement.
12. NOTICES. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement, the Loan Documents or any other
agreement entered into in connection herewith shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by receipted overnight delivery service to Borrower
or to Lender, as the case may be, at their addresses set forth below:
If to Borrower: CT Holdings, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
If to Lender: CITN Investment, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
The parties may change the address at which they are to receive notices
hereunder by notice in writing in the foregoing manner given to the other. All
notices or demands sent in accordance with this Section, other than notices by
Lender in connection with the Code, shall be deemed received on the earlier of
the date of actual receipt or three calendar days after the deposit thereof in
the mail. Borrower acknowledges and agrees that notices sent by Lender in
connection with the Code shall be deemed sent when deposited in the mail or
otherwise sent by Lender in accordance with the delivery methods set forth
above.
13. DESTRUCTION OF BORROWER'S DOCUMENTS. All documents or other papers
delivered to Lender may be destroyed or otherwise disposed of by Lender four
months after they are delivered to or received by Lender unless Borrower
requests in writing the return of the documents or other papers and makes
arrangements, at Borrower's expense, for their return.
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14. GENERAL PROVISIONS
14.1 Effectiveness; Time of the Essence. This Agreement and the other Loan
Documents shall be binding and deemed effective when executed by Borrower and
Lender. Time is of the essence of this Agreement and the other Loan Documents.
14.2 Successors and Assigns. This Agreement shall bind and inure to the benefit
of the respective successors and assigns of each of the parties; provided,
however, that Borrower may not assign this Agreement or any rights or duties
hereunder without Lender's prior written consent and any prohibited assignment
shall be void and of no effect as against Lender. No consent to an assignment
by Lender shall release Borrower from its Obligations. Lender and its
successors and assigns may assign this Agreement and any other Loan Document and
its rights and duties hereunder and thereunder. Lender reserves the right to
sell, assign, transfer, negotiate or grant participations in all or any part of,
or any interest in Lender's rights and benefits hereunder. In connection
therewith, Lender may disclose all documents and information which Lender now or
hereafter may have relating to Borrower or Borrower's business.
14.3 Headings. Headings and numbers have been set forth herein for convenience
only. Unless the contrary is compelled by context, everything contained in each
paragraph applies equally to this Agreement.
14.4 Interpretation. Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against Lender or Borrower, whether under
any rule of construction or otherwise. On the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of all parties hereto.
14.5 Severability of Provisions. Each provision of this Agreement shall be
severable from every other provision of this Agreement for the purpose of
determining the legal enforceability of any specific provision.
14.6 Amendments in Writing. Neither this Agreement nor any provision hereof
shall be amended, modified, waived or terminated orally or by course of conduct
or pattern of dealing, but only by a written agreement signed by Lender. Any
purported amendment, modification, waiver or termination of this Agreement or
any provision hereof that is not in writing and signed by Lender shall be void
and of no effect.
14.7 Integration. This Agreement, together with the other Loan Documents,
reflects the entire agreement between the parties with respect to the subject
matter hereof. This Agreement, together with the other Loan Documents,
supersedes all prior agreements, understandings and negotiations, if any, which
are merged into this Agreement and the other Loan Documents.
14.8 Counterparts. This Agreement may be executed in any number of counterparts
and by different parties on separate counterparts each of which, when executed
and delivered, shall be deemed an original and all of which, when taken
together, shall constitute but one and the same Agreement.
14.9 Revival and Reinstatement of Obligations. If the incurrence or payment of
Obligations by Borrower or the transfer by Borrower to Lender of any property of
Borrower should for any reason subsequently be declared to be void or voidable
under any state or federal law relating to creditors' rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances,
preferences and other voidable or recoverable payments of money or transfers of
property (a Voidable Transfer), and if Lender is required to repay or restore,
in whole or in part, any such Voidable Transfer, or elects to do so upon the
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advice of its counsel, then, as to any Voidable Transfer, or the amount thereof
that Lender is required or elects to repay or restore, and as to all reasonable
costs, expenses and attorneys fees of Lender related thereto, the liability of
Borrower automatically shall be revived, reinstated and restored and shall exist
as though such Voidable Transfer had never been made.
14.10 Consultation with Counsel. Borrower and Lender acknowledge that they have
been given the opportunity to consult with counsel of their choice prior to
entering into this Agreement. Lender acknowledges that the Borrower's counsel
does not represent Lender in any manner in connection with this Agreement or the
transactions contemplated hereby.
14.11 Limitation of Liability. No claim may be made by Borrower or any other
person or entity against Lender or the agents of Lender for any special,
indirect, punitive or consequential damages in respect of any claim for breach
of contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith, and Borrower hereby waives, releases and
agrees not to xxx upon any claim for any such damages.
14.12 Fax Execution. Delivery of an executed counterpart of this Agreement or
any other Loan Document by fax transmission shall be equally as effective as
delivery of an executed hard copy of the same. Any party delivering an executed
counterpart of this Agreement or any other Loan Document by fax transmission
shall also deliver an executed hard copy of the same, but the failure by such
party to deliver an executed hard copy shall not affect the validity,
enforceability and binding effect of this Agreement or such other Loan Document.
15. CHOICE OF LAW; VENUE. THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT AND THE RIGHTS OF THE PARTIES SHALL BE
DETERMINED UNDER, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF TEXAS. THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS AGREEMENT SHALL BE LITIGATED ONLY IN THE STATE COURTS
LOCATED IN DALLAS COUNTY, TEXAS OR FEDERAL COURTS WHOSE VENUE INCLUDES DALLAS
COUNTY, TEXAS. THE PARTIES EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN ANY SUCH COURT, AND THE
PARTIES HEREBY WAIVE ANY OBJECTION WHICH EITHER MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION AND HEREBY CONSENT TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. FURTHER, BORROWER AND
LENDER EACH WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT EACH
MAY HAVE TO ASSERT THE DOCTRINE OF "FORUM NON CONVENIENS" OR TO OBJECT TO VENUE
TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
16. JURY TRIAL XXXXX. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND
LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN,
INCLUDING CONTRACT, TORT, BREACH OF DUTY, AND ALL OTHER COMMON LAW OR STATUTORY
CLAIMS. BORROWER AND LENDER REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND
EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement at Dallas,
Texas.
BORROWER:
CT Holdings, Inc.
By: _______________________________
Name: _____________________________
Title: ____________________________
LENDER:
CITN Investment, Inc.
By: _______________________________
Name: _____________________________
Title: ____________________________
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