EXHIBIT 2.10
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (the "SECURITY AGREEMENT"), executed this 13th
day of July, 2004, is made by and among Vista Labs Incorporated, a California
corporation ("GUARANTOR"), Noel McDermott, an individual ("COLLATERAL AGENT"),
and the persons and entities listed on the Schedule of Lenders attached hereto
as EXHIBIT A (each, a "LENDER" and collectively, the "LENDERS").
RECITALS
A. MicroTel International Inc., a Delaware corporation (the
"BORROWER"), and the Lenders are parties to the Stock Purchase Agreement of even
date herewith (the "STOCK PURCHASE AGREEMENT") relating to the purchase by
Borrower of all of the issued and outstanding shares of common stock of Larus
Corporation, a California corporation ("LARUS").
B. Pursuant to the terms of the Stock Purchase Agreement, Borrower
issued certain long term promissory notes (which are defined in the Stock
Purchase Agreement as well as herein as the "LONG TERM NOTES") to each of the
Lenders to satisfy a portion of the aggregate consideration to be paid by
Borrower for the purchase of the shares of Larus from Lenders.
C. Guarantor is delivering a Continuing Guarantee of even date herewith
(the "GUARANTEE") in favor of Lenders pursuant to which the obligations of
Borrower to Lenders under the Long Term Notes are guaranteed by Guarantor.
D. In order to induce Lenders to extend the credit evidenced by the
Long Term Notes, Guarantor has agreed to enter into this Security Agreement to
grant Collateral Agent, for the benefit of itself and the Lenders, the security
interest in the Collateral described below.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND INTERPRETATION. Unless otherwise defined herein, all
other capitalized terms used herein and defined in the Long Term Notes shall
have the respective meanings given to those terms in the Long Term Notes, and
all terms defined in the California Uniform Commercial Code (the "UCC") shall
have the respective meanings given to those terms in the UCC.
2. GRANT OF SECURITY INTEREST. To secure the Obligations as defined in
SECTION 3 hereof, Guarantor hereby grants to Collateral Agent a security
interest in the following property, whether now owned or hereafter acquired by
the Guarantor (the "COLLATERAL"): all tangible and intangible assets of
Guarantor, including, but not limited to, all existing and future inventory,
accounts receivable, furniture, fixtures, equipment, patents, patent
applications, trademarks, copyrights, trade secrets, and any other property
interest or proprietary right, as well as any document, instrument or drawings
embodying the same, and all additions and accessions thereto, substitutions and
replacements therefor, and all proceeds thereof.
3. SECURITY FOR OBLIGATIONS. The obligations secured by this Security
Agreement (the "OBLIGATIONS") shall mean and include all obligations of Borrower
as provided in the Long Term Notes.
4. POSSESSION AND LOCATION OF COLLATERAL. Unless and until any default
occurs hereunder as set forth in SECTION 11 hereof, Guarantor shall have
possession of the Collateral for its use and enjoyment in any lawful manner not
inconsistent with this Security Agreement or the Long Term Notes. The Collateral
will be kept at Guarantor's place of business (or such other place as Guarantor
customarily keeps the Collateral) with respect to such assets and will not be
moved therefrom without the prior written consent of Collateral Agent, except
that Guarantor may make sales of inventory items in the ordinary course of
business. Guarantor shall not replace or make material alterations in the
Collateral without the prior written consent of Collateral Agent. The consent of
Collateral Agent required hereby shall not be unreasonably withheld.
5. FINANCING STATEMENTS. Concurrently with the execution of this
Security Agreement, Guarantor shall execute and deliver to Collateral Agent the
UCC-1 financing statement provided by Collateral Agent.
6. TRANSFER, TAXES, LIENS AND ENCUMBRANCES. Guarantor has title to the
Collateral free and clear of any lien, security interest or encumbrance, except
for the security interests of the Senior Lenders and the security interest
created by this Security Agreement. Title to the Collateral will remain in and
continue to be vested in Guarantor. Guarantor will defend the Collateral and
will not sell, offer to sell or otherwise transfer the Collateral, any portion
thereof, or any interest therein, without the prior written consent of
Collateral Agent, except that Guarantor may make sales of inventory items in the
ordinary course of business. The consent of Collateral Agent required hereby
shall not be unreasonably withheld. Guarantor shall pay all taxes, assessments
and other charges made against the Collateral.
7. RISK OF LOSS AND INSPECTION OF COLLATERAL. Guarantor shall have all
risk of loss of the Collateral, and Guarantor will keep the Collateral in good
order and repair. Collateral Agent shall have the right, at any reasonable time,
to enter upon the premises where the Collateral is located to examine and
inspect the Collateral in person or by agent. Any refusal to permit such entry
shall be a breach of this Security Agreement.
8. INSURANCE. Guarantor shall keep the Collateral insured, at its own
expense, in an amount not less than its full insurable value, against loss by
fire, theft, vandalism and malicious mischief, storm, earthquake and extended
coverage, and Guarantor shall cause the Lenders to be named loss payees in such
insurance, and furnish to Collateral Agent written evidence thereof.
9. REPRESENTATIONS WARRANTIES. Guarantor hereby represents and warrants
to Collateral Agent and the Lenders as follows:
(a) AUTHORIZATION. Guarantor has full power and authority to
enter into this Security Agreement.
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(b) RESTATEMENT OF REPRESENTATIONS AND WARRANTIES. On and as
of the date any property becomes Collateral, the foregoing representations and
warranties shall be deemed restated with respect to such additional Collateral.
10. COVENANTS. Guarantor hereby agrees as follows:
(a) LIENS ON COLLATERAL. Guarantor agrees not to create,
incur, assume or suffer to exist any lien or security interest of any kind upon
the Collateral other than in favor of the Senior Lenders.
(b) FURTHER ASSURANCES. Guarantor agrees that at any time and
from time to time, at Guarantor's expense, Guarantor will promptly execute and
deliver all further instruments and documents and take all further action, that
may be necessary or desirable, or that Collateral Agent may reasonably request,
in order to perfect and protect any security interest granted or purported to be
granted hereby or to enable Collateral Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral.
11. EVENTS OF DEFAULT; REMEDIES.
(a) EVENT OF DEFAULT. An Event of Default shall be deemed to
have occurred under this Security Agreement upon the occurrence and during the
continuance of an Event of Default (as defined in the Long Term Notes).
(b) RIGHTS UNDER THE UCC. In addition to all other rights
granted hereby, and otherwise by law, Collateral Agent shall have, with respect
to the Collateral, the rights and obligations of a secured party under the UCC.
(c) NOTICE, ETC. In any case where notice of sale is required,
ten (10) days notice shall be deemed reasonable notice. Collateral Agent may
have resort to the Collateral or any portion thereof with no requirement on the
part of Collateral Agent to proceed first against any other Person (as defined
in the Long Term Notes) or property.
(d) OTHER REMEDIES. Upon the occurrence and during the
continuance of an Event of Default, (i) at the request of Collateral Agent,
Guarantor shall assemble and make available to Collateral Agent all of the
Collateral at a place or places reasonably convenient to both Guarantor and
Collateral Agent.
(e) APPLICATION OF COLLATERAL PROCEEDS. The proceeds and/or
avails of the Collateral, or any part thereof, and the proceeds and the avails
of any remedy hereunder (as well as any other amounts of any kind held by
Collateral Agent at the time of, or received by Collateral Agent after, the
occurrence of an Event of Default) shall be paid to and applied as follows:
(i) first, to the payment of reasonable costs and
expenses, including all amounts expended to preserve the value of the
Collateral, of foreclosure or suit, if any, and of such sale and the exercise of
any other rights or remedies, and of all proper fees, expenses, liability and
advances, including reasonable legal expenses and attorneys' fees, incurred or
made hereunder by Collateral Agent;
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(ii) second, to the payment to each Lender of the
amount then owing or unpaid on such Lender's Long Term Note, and in case such
proceeds shall be insufficient to pay in full the whole amount so due, owing or
unpaid upon such Long Term Note, then its Pro Rata Share of the amount remaining
to be distributed (to be applied first to accrued interest and second to
outstanding principal); and
(iii) third, to the payment of the surplus, if any,
to Guarantor, its successors and assigns, or to whomsoever may be lawfully
entitled to receive the same.
For purposes of this Security Agreement, the term "Pro Rata Share" shall mean,
when calculating a Lender's portion of any distribution or amount, that
distribution or amount (expressed as a percentage) equal to a fraction (i) the
numerator of which is the original outstanding principal amount of such Lender's
Long Term Note and (ii) the denominator of which is the original aggregate
outstanding principal amount of all Long Term Notes issued under the Stock
Purchase Agreement. In the event that a Lender receives payments or
distributions in excess of its Pro Rata Share, then such Lender shall hold in
trust all such excess payments or distributions for the benefit of the other
Lenders and shall pay such amounts held in trust to such other holders upon
demand by such holders.
12. AUTHORIZED ACTION BY COLLATERAL AGENT.
(a) Guarantor hereby appoints Collateral Agent as Guarantor's
attorney-in-fact, with full authority in the place and stead of Guarantor and in
the name of Guarantor or otherwise, from time to time in Collateral Agent's
discretion and to the full extent permitted by law to take any action and to
execute any instrument which Collateral Agent may deem reasonably necessary or
advisable to accomplish the purposes of this Security Agreement in accordance
with the terms and provisions hereof, including without limitation, to receive,
endorse and collect all instruments made payable to Guarantor representing any
dividend, interest payment or other distribution in respect of the Collateral or
any part thereof and to give full discharge for the same.
(b) This power of attorney is a power coupled with an interest
and shall be irrevocable. The powers conferred on Collateral Agent hereunder are
solely to protect the Collateral Agent and Lenders' interests in the Collateral
and shall not impose any duty upon Collateral Agent to exercise any such powers.
Collateral Agent shall be accountable only for amounts that he actually receives
as a result of the exercise of such powers and in no event shall Collateral
Agent or any of his employees or agents be responsible to Guarantor for any act
or failure to act, except for gross negligence or willful misconduct.
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13. COLLATERAL AGENT.
(a) APPOINTMENT. The Lenders hereby appoint Noel McDermott as
Collateral Agent for the Lenders under this Security Agreement (in such
capacity, the "COLLATERAL AGENT") to serve from the date hereof until the
termination of this Security Agreement.
(b) POWERS AND DUTIES OF COLLATERAL AGENT, INDEMNITY BY
LENDERS.
(i) Each Lender hereby irrevocably authorizes the
Collateral Agent to take such action and to exercise such powers hereunder as
provided herein, together with such powers as are reasonably incidental thereto.
Collateral Agent may execute any of his duties hereunder by or through agents or
employees at his discretion.
(ii) Upon the death, resignation or removal of the
Collateral Agent, the Lenders shall appoint a successor collateral agent to act
under the Long Term Notes and this Security Agreement. If no such successor
collateral agent shall have been so appointed by the Lenders and shall have
accepted such appointment within 30 days after Collateral Agent's death, giving
of notice of resignation or removal as Collateral Agent, then Collateral Agent
shall be deemed to be Warren P. Yost or his successor-in-interest to his Long
Term Note. Upon the acceptance of any appointment as successor collateral agent
hereunder by a successor collateral agent, such successor collateral agent shall
thereupon succeed to and become vested with all rights, powers, privileges,
duties and obligations of Collateral Agent hereunder, and the Collateral Agent
shall be discharged from his duties and obligations. After Collateral Agent's
death, resignation or removal hereunder as the Collateral Agent, the provisions
of this SECTION 13 shall continue in effect for his benefit in respect of any
actions taken or omitted to be taken by him while he was acting as such
Collateral Agent.
14. MISCELLANEOUS.
(a) NOTICES. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Guarantor, Collateral Agent or Lenders under this Security Agreement shall be in
writing and telecopied, mailed or delivered to each party at the telecopier
number or its address set forth below (or to such other telecopy number or
address as the recipient of any notice shall have notified the other in
writing). All such notices and communications shall be effective (a) when sent
by Federal Express or other overnight service of recognized standing, on the
business day following the deposit with such service; (b) when mailed by
registered or certified mail, first class postage prepaid and addressed as
aforesaid through the United States Postal Service, upon receipt; (c) when
delivered by hand, upon delivery; and (d) when telecopied, upon confirmation of
receipt.
Guarantor: Vista Labs Incorporated
9485 Haven Avenue, Suite 100
Rancho Cucamonga, CA 91730
Telephone:
Facsimile:
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Collateral Agent: Noel McDermott
502 Village Circle
Santa Cruz, CA 95060
Telephone: ____________________
Facsimile: _____________________
Lenders: See the Schedule of Lenders on EXHIBIT A.
(b) NONWAIVER. No failure or delay on Guarantor, Collateral
Agent or Lenders' part in exercising any right hereunder shall operate as a
waiver thereof or of any other right nor shall any single or partial exercise of
any such right preclude any other further exercise thereof or of any other
right.
(c) AMENDMENTS AND WAIVERS. This Security Agreement may not be
amended or modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Collateral Agent. Each waiver or consent
under any provision hereof shall be effective only in the specific instances for
the purpose for which given.
(d) ASSIGNMENTS. This Security Agreement shall be binding upon
and inure to the benefit of Lenders, Collateral Agent and Guarantor and their
respective successors and assigns; PROVIDED, HOWEVER, that Guarantor may not
assign its rights and duties hereunder without the prior written consent of
Collateral Agent.
(e) CUMULATIVE RIGHTS, ETC. The rights, powers and remedies of
Lenders and Collateral Agent under this Security Agreement shall be in addition
to all rights, powers and remedies given to Lenders and Collateral Agent by
virtue of any applicable law, rule or regulation of any governmental authority,
the Long Term Notes, the Guarantee, or any other agreement, all of which rights,
powers, and remedies shall be cumulative and may be exercised successively or
concurrently without impairing Collateral Agent's rights hereunder. Guarantor
waives any right to require Collateral Agent or Lenders to proceed against any
Person or to exhaust any collateral or to pursue any remedy in Collateral Agent
or Lenders' power.
(f) PARTIAL INVALIDITY. If any time any provision of this
Security Agreement is or becomes illegal, invalid or unenforceable in any
respect under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Security Agreement nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
(g) EXPENSES. Guarantor shall pay on demand all reasonable
fees and expenses, including reasonable attorneys' fees and expenses, incurred
by Collateral Agent with respect to any amendments or waivers hereof requested
by Guarantor or in the enforcement or attempted enforcement of any of the
Obligations or in preserving any of Collateral Agent or Lenders' rights and
remedies (including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting this Security
Agreement, the Long Term Notes, the Guarantee or the Obligations or any
bankruptcy or similar proceeding involving Guarantor).
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(h) GOVERNING LAW. This Security Agreement shall be governed
by and construed in accordance with the laws of the State of California without
reference to conflicts of law rules (except to the extent governed by the UCC).
(i) JURY TRIAL. GUARANTOR, LENDERS AND COLLATERAL AGENT, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVE ALL
RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this Security Agreement to
be executed as of the day and year first above written.
GUARANTOR:
Vista Labs Incorporated,
a California corporation
By: /S/ CARMINE T. OLIVA
-----------------------------------------
Carmine T. Oliva, Chief Executive Officer
LENDERS:
See Schedule of Lenders on EXHIBIT A for signatures.
COLLATERAL AGENT:
S/ NOEL MCDERMOTT, BY WARREN P. YOST, ATTORNEY-IN-FACT
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Noel McDermott
[Signatures continued on next page]
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EXHIBIT A
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SCHEDULE OF LENDERS
PRINCIPAL
AMOUNT
LENDER'S NAME AND ADDRESS OF NOTE LENDER'S SIGNATURE
------------------------- ------- ------------------
Noel McDermott, as Trustee of the Noel C. $1,680,000 S/ NOEL MCDERMOTT, TRUSTEE, BY WARREN P.
McDermott Revocable Living Trust dated ----------------------------------------
December 18, 1995 YOST, ATTORNEY-IN-FACT
502 Village Circle ----------------------
Santa Cruz, CA 95060 Noel McDermott, Trustee of the Noel C.
McDermott Revocable Living Trust dated
December 18, 1995
Warren P. Yost and Gail A. Yost, as Co-Trustees $1,320,000 /S/ WARREN P. YOST
Under Declaration of Trust dated March 9, 1988 ------------------
10324 Miner Place Warren P. Yost, Co-Trustee Under Declaration
Cupertino, CA 95014 of Trust dated March 9, 1988
/S/ GAIL A. YOST
----------------
Gail A. Yost, Co-Trustee Under Declaration
of Trust dated March 9, 1988
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