EXHIBIT 10.1
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LOAN AGREEMENT
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This Loan Agreement ("Agreement") is made and entered into effective
this 4th day of March, 2005, by, between and among GREYSTONE MANUFACTURING,
L.L.C., an Oklahoma limited liability company ("Greystone" or "Borrower"), and
GLOG INVESTMENT, L.L.C., an Oklahoma limited liability company ("GLOG")
(hereinafter Greystone and GLOG are collectively referred to as "Borrowers"),
and THE F&M BANK & TRUST COMPANY ("F&M"), an Oklahoma banking corporation
("Bank"), as well as PALWEB CORPORATION ("PalWeb") joining as to certain
provisions of this Agreement, and is based upon the following factual recitals.
R E C I T A L S:
On the terms and conditions of this Agreement, Borrowers desire for
Bank to advance and make available or ratify the following loans:
(i) A $1,500,000.00 revolving loan to Greystone ("Revolving
Note") advanced and extended by Bank December 18, 2004;
(ii) A $5,500,000.00 term loan to Greystone ("Term Note");
(iii) A $5,000,000.00 term loan to GLOG ("GLOG Note).
(collectively the Revolving Note and the Term Note shall hereafter be referred
to as "Notes"). Bank and Borrowers desire that Bank advance and make sums
available to Borrowers, and ratify and confirm the Revolving Note of Greystone,
respectively, in accordance with the terms of this Agreement, to be evidenced by
the Notes.
The payment of the Notes is to be secured by a good and valid first
lien upon or security interest in all assets of Greystone, including, without
limitation, all Inventory, Accounts, Contract Rights, Equipment and General
Intangibles, now owned or hereafter acquired, a second lien on certain real
property and certain guaranties by the Guarantors. The payment of the GLOG Note
shall be secured by certain Guaranties and a pledge of preferred stock of
Parent.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, including the extension, renewal, loans and/or
advances in accordance with the terms of this Agreement and subject to the
advance terms stated hereafter, evidenced by the Notes and GLOG Note, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1.0 DEFINITION OF TERMS. As used in this Agreement the following
terms will have the meanings indicated:
2.50 MM GUARANTY shall have the meaning assigned in the definition
of Guarantors.
5.00 MM GUARANTY shall have the meaning assigned in the definition
of Guarantors.
ACCOUNTS. This term shall mean the definition for "Account" or
"Accounts" provided in the Oklahoma U.C.C., the right to payment for goods,
inventory or services sold or leased by Borrower which are not evidenced by an
instrument, chattel paper or writing.
AFFILIATE OR AFFILIATES. "Affiliate or Affiliates" shall mean any
person, entity or corporation directly or indirectly controlling or controlled
by or under the common control of the Borrowers or Parent, as the case may be.
Controlled by or under control, as used with respect to a corporation as a
person shall mean the possession, directly or indirectly, of the power to elect
a majority of the board of directors of such corporation and with respect to an
individual that is not a corporation shall mean the possession, directly or
indirectly, of the power to direct the management policies of that person or
persons.
BANK ADVANCE AMOUNT. This term shall have the meaning assigned in P.
2.1.1 as applicable to Greystone.
BORROWER. This term shall mean Greystone, but shall not mean GLOG.
BORROWERS. This term shall have the meaning used in the preamble of
this Agreement and shall refer collectively to Greystone and GLOG.
BORROWING BASE. This term shall mean the amount determined in
accordance with P. 2.1.1, of this Agreement that may be advanced under the
Revolving Note based on the Qualified Accounts Receivable of Greystone.
BORROWING BASE CERTIFICATE. This term shall mean the certificate
referred to in P. 4.1 for Greystone.
BUSINESS DAY. This term shall mean a day other than Saturday, Sunday
or day upon which state and national banks of the State of Oklahoma are closed
for business.
CAPITAL. Capital shall mean the sum of the capital stock of Borrower
or Borrowers, respectively, including retained earnings (all determined in
accordance with G.A.A.P.) plus the sum of indebtedness to the extent fully
subordinated to the debt of Bank.
CLOSING DATE. This term shall mean the effective date of this
Agreement.
COLLATERAL. Collateral shall mean the property described in the Loan
Documents as defined hereafter and all other property now owned or hereafter
held by the Bank to secure the payment of the Notes or Indebtedness as hereafter
defined, together with all increases, replacements and substitutions therefor,
additions and accessions thereto and all proceeds and products thereof.
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CURRENT ASSETS. Current Assets shall mean all assets of Greystone
which should, in accordance with generally accepted accounting principles, be
classified as current assets.
CURRENT BORROWING BASE CERTIFICATE. This term shall have the meaning
assigned in P. 4.1 and shall establish the Current Borrowing Base for Greystone,
for the thirty-one (31) day period after the Current Borrowing Base Certificate
is accepted, received and verified by Bank.
CURRENT LIABILITIES. Current Liabilities shall mean all indebtedness
of Greystone, respectively, which should, in accordance with G.A.A.P. at each
month, quarter or year end or other date of determination, be classified as
current liabilities, including, without limitation (i) include all indebtedness
payable on demand, within one year from the date of the determination without
any option on the part of Greystone to extend or renew beyond such year; (ii)
all debt outstanding on the Revolving Note; (iii) all accruals for federal or
other taxes based on or measured by income and payable within such year; (iv)
all redemptions and payments of long term debt required to be made within such
year; and (v) any Inter-Company Liabilities to any company who is an affiliate
of or related to Borrower.
EVENT OF DEFAULT. This term shall mean all of the events described
in P. 8.1, ET SEQ. as to Greystone, or P. 8.2, ET SEQ. as to GLOG of this
Agreement and Default shall mean any event which together with the giving of
notice or the lapse of time or both or either, would otherwise constitute an
Event of Default.
FLOATING INTEREST RATE. This term shall mean the Prime Lending Rate
of Interest plus two percent (2.00%) per annum at all times, changing on each
day in which there is a change or adjustment to the Prime Lending Rate of
Interest.
G.A.A.P. G.A.A.P. shall mean Generally Accepted Accounting
Principles consistently applied, as set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and/or in any other statements by such entity or successor entity as the Bank
may approve, which are applicable in the circumstance as to the date in
question, and as referred herein shall mean the principles of accounting
generally used and applicable for the business of the Borrowers. Consistently
applied shall mean that the accounting principles observed in a current period
are comparable in all material respects to those applied in the preceding period
except as stated in the financial statements, notes or accepted by Bank.
GLOG NOTE. This shall mean the Note described in P. 2.3 of this
Agreement and in the Recitals of this Agreement.
GUARANTORS. This term shall mean the following persons executing
joint and several limited guaranties (i) under the GLOG Note: Warren Kruger,
Robert Rosene, Marshall Cogan and Robert Nelson to the extent of the sum of
$5,000,000.00 plus interest, costs and fees ("5.00 MM Guaranty") and (ii) under
the Term Note: Warren Kruger, Robert Rosene, Marshall Cogan and Robert Nelson
for the sum of $2,500,000.00 plus interest, cost and fees ("2.50 MM Guaranty").
This term shall also mean the following persons executing limited guaranties
with
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respect to the Revolving Note: Warren Kruger to the extent of one-half of the
principal balance of the Revolving Note plus interest, costs and fees and Robert
Rosene to the extent of one-half of the principal balance of the Revolving Note
plus interest, costs and fees.
INDEBTEDNESS. This term as used herein is used in its most
comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations, debts, and indebtedness to Bank on the Notes,
including without limitation all extensions, renewals and consolidations of the
sums due under the Notes, any and all amendments to or extensions, renewals,
modifications, substitutions and replacements of the Notes and all other
indebtedness or obligations of the Borrower or Guarantors to Bank whether listed
herein or in this Agreement. This shall also refer to the obligation to pay all
other indebtedness and obligations of Borrower to Bank, whether presently
existing, or in any manner or means hereafter incurred, and evidenced in any
manner whatsoever, either by notes, advances, overdrafts, bookkeeping entries,
guaranty agreements, liens or security instruments, or any other method or
means, including any renewal and extension of the Notes, or of any part of any
present or future indebtedness, or other obligations, of Borrower and including
any further loans and advancements made by Bank to Borrower. The fact of
repayment of the Notes and Indebtedness and performance of all other obligations
of Borrower to Bank shall not terminate this Agreement unless the same be
released by Bank at the request of Borrower; but otherwise it shall remain in
full force and effect as to all future advances, indebtedness and any past
indebtedness or other obligations.
INTER-COMPANY ADVANCES. This term shall mean advances of sums by
Parent to Greystone or GLOG or other advances of sums by Borrower to Affiliates,
or Related Parties to Borrower, which advances of sums are shown on the books
and records as an account receivable and have not been repaid within sixty (60)
days of the advance. Inter-Company Liabilities and Inter-Company Receivables
shall be excluded from and not be considered an Inter Company Advance; provided,
however, that any Inter-Company Liabilities to Parent or Affiliates or Related
Parties of Borrower, which are not repaid in full within ninety (90) days of the
advance shall become a Inter-Company Advance and restricted by the subordination
provisions of this Agreement.
INTER-COMPANY LIABILITIES. This term shall mean the sums or
liabilities owed by one or more of the other Borrowers to Affiliates or Related
Parties or Borrower if the sums are capable of being repaid within thirty (30)
days when advanced and are repaid in full within ninety (90) days of the advance
of the sums.
INTER-COMPANY RECEIVABLES. This term shall mean sums owed to one or
more of the Borrowers by one or more of the other Borrowers or Affiliates or
Related Parties which sums are capable of being repaid within thirty (30) days
of when advanced and are repaid within ninety (90) days of the advance of the
sums.
INVENTORY. This term shall mean the definition for "Inventory"
provided in the Oklahoma U.C.C.
LOAN AGREEMENT. This term shall have the meaning used in the
Recitals.
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LOAN DOCUMENTS. Loan Documents shall mean this Agreement, the Notes,
GLOG Note, Security Agreements, Mortgages, guaranties, subordination agreements
and Financing Statements, together with any and all amendments, extensions,
renewals and modifications thereto, and all instruments issued and pursuant
thereto, and all other instruments executed by the Borrowers and delivered to
the Bank in connection with or related to the Notes and GLOG Note made by the
Bank to Borrowers.
MATERIAL ADVERSE EVENT. This shall mean any Material Adverse Event
or effect upon the business, operation, property, assets or condition of
Borrowers, or the impairment of the ability of any Borrowers to perform its
obligation under this Agreement, the Loan Documents or any of the Loan Documents
to which they are a party or of the Bank to enforce or collect the sums due
under the Notes or GLOG Note. In determining whether any individual event would
result in a Material Adverse Event, notwithstanding that such event does not of
itself have such effect, a Material Adverse Event shall be deemed to have
occurred if the cumulative effect of such event and all other existing events
would result in the Material Adverse Event.
NOTES. The Notes shall mean the Term Note and Revolving Note executed
or to be executed by the Borrower and delivered to the Bank to evidence the loan
contemplated by this Agreement as described and set forth in P. 2.0, ET SEQ.
OBSOLETE OR PERISHABLE INVENTORY. Obsolete or Perishable Inventory
shall mean any inventory of Borrowers, respectively, determined on at least a
monthly basis, that is obsolete or perishable inventory in accordance with
G.A.A.P., or is listed on the books and records of Borrowers as obsolete or
perishable or is of a nature that it may be perishable with the passage of time.
OPERATING ACCOUNTS. This term shall mean the various deposit
accounts of each of the Borrowers as identified on Schedule "3.3".
PARENT. This term shall mean PalWeb Corporation, who is the parent
of and owner of all of the equity interests in Greystone.
PERMITTED ENCUMBRANCES. This term shall mean those first mortgage
liens on real estate of Borrower which Bank has acknowledged in writing,
purchase money security interests in vehicles, office equipment leases (or
acknowledged by Bank in writing), long term capital leases wherein Greystone or
GLOG is the tenant or other liens paramount to Bank which Bank has acknowledged
in writing by Bank.
PERMITTED LIENS. This term shall have the meaning set forth in P.
7.1.
PREFERRED STOCK. This shall mean the meaning assigned in P. 2.3.1.
PRIME LENDING RATE OF INTEREST. The Prime Lending Rate of Interest
shall mean the prime or base rate published by the Wall Street Journal,
Southwest Edition, in its money rates
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column as the prime or base rate on corporate loans at large U. S. money center
commercial banks (or a similar or successor rate published therein). If the
Prime Lending Rate is no longer announced or published for any reason, the Bank
may select in its sole discretion such alternative announced and established
prime or base rate of a New York, New York money center commercial bank which
Bank deems to be most comparable to the no longer announced Prime Lending Rate
of Interest.
QUALIFIED ACCOUNTS RECEIVABLE. This term shall mean accounts
receivable arising in the ordinary course of business owned by and payable to
Greystone in a sum of money (exclusive of interest, late charges or carrying
charges), unconditionally due and owing, and not more than one hundred twenty
(120) days from the billing or invoice date; provided, however, that this term
shall not include:
(i) the portion of an account receivable that is in
excess of one hundred twenty (120) days from the billing or invoice
date, but the balance otherwise fully qualifies as a Qualified
Account Receivable;
(ii) accounts receivable that are a contra account or
are subject to a dispute, setoff, recoupment, counterclaim or other
claim that would reduce the amount of the account;
(iii) accounts receivable where the account obligor has
ceased business, filed bankruptcy, made an assignment for the
benefit of its creditors, engaged in or attempted to engage in a
composition with its creditors or trust;
(iv) accounts receivable that are evidenced by a
promissory note, trade acceptance, negotiable instrument or judgment
or is chattel paper or resulting from a sale or lease of goods held
on consignment subject to a security interest in favor of another
creditor;
(v) accounts receivable that are owed to Borrower by a
Related Party, including, but not limited to, its officers,
directors, employees, stockholders or related Affiliates;
(vi) accounts receivable where the account obligor is
insolvent, not a going concern or deemed uncreditworthy by Bank for
material reasons which Bank will disclose in writing to Borrower;
(vii) accounts receivable where the account obligor is a
governmental entity, or is subject to the United States Claims Act
under the Statutes of the United States of America;
(viii) accounts receivable where the obligor has ceased
business, made an assignment for the benefit of creditors, attempted
to engage in a composition of creditors, a trustee, receiver,
liquidator, conservator, custodian or similar officer
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has been appointed to take control, custody or possession of the
account obligor or its assets, including any account obligor who is
adjudged to be insolvent, requested appointment of receiver,
trustee, custodian, liquidator or similar officer for the purpose of
liquidating, winding up, reorganizing, rehabilitating or seeking
relief under any creditors' rights laws now or hereafter enforced;
(ix) accounts receivable where the account obligor has
in its possession shipping tickets, bills of lading, invoices,
delivery receipts and other written records or memoranda;
(x) accounts receivable where the account obligor has
disputed the account receivable in any way;
(xi) accounts receivable which are evidenced by a
promissory note, trade acceptance, negotiable instrument, judgment
or chattel paper under the Uniform Commercial Code; and
(xii) accounts receivable where the entire account
receivable owed by a single obligor that is over one hundred twenty
(120) days from the billing or invoice date (but the balance
otherwise qualifies as a Qualified Account Receivable) if over
twenty percent (20%) of the aggregate accounts receivable owed is
over one hundred twenty (120) days from billing or invoice date and
to that extent the entire account receivable shall be excluded.
QUALIFIED INVENTORY. Qualified Inventory shall mean goods or
materials held for resale by Borrower as well as raw materials and work in
process in the ordinary course of Borrower's business, and the value
attributable to each item of inventory shall be the lesser of cost of such item
to Borrower (less handling and transport costs) or the present fair market value
of such items of inventory determined according to G.A.A.P. Qualified Inventory
shall not include:
(i) Obsolete or Perishable Inventory;
(ii) inventory on consignment; except for consignment
arrangements specifically accepted by Bank in writing (which shall
not be excluded from being Qualified Inventory based on this
sub-section);
(iii) inventory subject to a purchase money security
interest to a person other than Bank;
(iv) any inventory located outside the United States of
America unless the law of the country allows or permits Bank's lien
to be a first lien or security interest in such inventory; and
(v) work in progress which is not capable of being used
to fulfill a contract or purchase order.
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In calculating Qualified Inventory, the Borrower shall use its
daily, weekly or monthly (to the extent applicable and determined in that
fashion) average aggregate balance for Qualified Inventory for the period of
time so calculated as the sum to be used in calculating the Borrowing Base for
any given period of time.
RELATED PARTY OR RELATED PARTIES. These terms shall mean those
companies that are either an Affiliate, Subsidiary, or in which Borrowers own an
interest of such entity or company.
REVOLVING NOTE. This term shall mean the revolving line of credit
note of Borrower, as described in P. 2.1.
SECURITY AGREEMENT. This term shall mean a certain Security
Agreement of equal date herewith granting a lien on the property described in
that certain Security Agreement.
SUBSIDIARY OR SUBSIDIARIES. Subsidiary or Subsidiaries shall mean
any corporation, association, joint stock company, business, trust or similar
organization of which fifty percent (50%) or more of the ordinary voting power
for the election of the majority of the members of the board of directors or any
other governing body is held or controlled by either of the Borrowers or any
other organization, the management of which is directly or indirectly controlled
by either of the Borrowers through the exercise of voting power, control, joint
venture or other entity whether incorporated or not in which either of the
Borrowers have a fifty percent (50%) or more ownership interest.
TERM NOTE. This shall mean the Note described in P. 2.2 of this
Agreement and in the Recitals of this Agreement.
U.C.C. This shall mean the Uniform Commercial Code adopted in the
State of Oklahoma, 12A Okla. Stat. ss. 1-101, ET SEQ.
2.0 LOAN. Subject to the terms and conditions of this Agreement, the
Bank agrees to loan to Borrowers the following:
2.1 REVOLVING NOTE. Greystone has executed and delivered to Bank a
Note evidencing a ONE MILLION FIVE HUNDRED THOUSAND DOLLAR ($1,500,000.00)
revolving loan payable to Bank ("Revolving Note"). A full, true and correct copy
of the Revolving Note is attached as Exhibit "1". The Revolving Note shall bear
interest on the advanced and unpaid principal sums at the Floating Interest Rate
as set out in such note and shall be based upon the actual number of days
elapsed under a 360-day calendar year. The Revolving Note will be payable in
full January 5, 2006.
2.1.1 BORROWING BASE. Greystone shall provide a
Borrowing Base Certificate to Bank on at least a monthly basis and
Bank shall have no obligation to advance on the Revolving Note
unless Greystone has submitted to Bank a Borrowing Base Certificate
no more than thirty-one (31) days old ("Current
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Borrowing Base"). Notwithstanding any other term in the Loan
Agreement, Bank will only make advances on the Revolving Note as
requested by Greystone from time to time upon verification by
Greystone on a form satisfactory to the Bank that the advance when
requested, when added to the aggregate of all principal sums already
outstanding under the Revolving Note will total a sum less than the
following Borrowing Base, to wit:
(i) A sum equal to eighty percent (80%) of the aggregate
of Greystone's Qualified Accounts Receivable as defined herein; and
(ii) A sum equal to fifty percent (50%) of Greystone's
Qualified Inventory.
(collectively "Borrowing Base").
In calculating the Borrowing Base, the amount advanced on the
Revolving Note shall be compared to the Borrowing Base to determine
what is available, if anything, for advance on the Revolving Note.
The Bank Advance Amount shall be the aggregate amount of the
Borrowing Base less the principal balance advanced and outstanding
("Bank Advance Amount"). To the extent applicable and to the extent
that Greystone maintains its records in this fashion, the Borrowing
Base shall use the daily, weekly or monthly average aggregate
balances for Qualified Accounts Receivable and Qualified Inventory
for the period of time so calculated as the sum to be used in
calculating the Borrowing Base.
2.1.2 BORROWING BASE DEFICIENCY. If sums are advanced on
the Revolving Note in excess of the Borrowing Base or if, at any
time, the aggregate unpaid principal balance of the Revolving Note
shall exceed or be greater than the Borrowing Base, Greystone shall
immediately repay the amounts advanced in excess of the Borrowing
Base so that the sums advanced and outstanding on the Revolving Note
do not at any time exceed the Borrowing Base, and in any event,
shall repay such amounts within seven (7) business days that
Greystone becomes aware of the deficiency, or of receipt of a notice
from the Bank of such deficiency, in an amount sufficient to reduce
the unpaid principal balance outstanding on the Revolving Note to an
amount equal to or less than the applicable Borrowing Base.
2.1.3 ADVANCES ON THE REVOLVING NOTE. Notwithstanding
the amount stated as the aggregate face amount of the Revolving
Note, the actual amount available for advance shall be the aggregate
face amount of the Revolving Note less the sum of all advances made
on account thereof, plus all principal payments actually received by
Bank in collected funds subject to the restrictions set out in P. P.
2.1.1 and 2.1.2, inclusive. The actual principal amount due from
Greystone to the Bank under the Revolving Note at any one time on
account of the Revolving Note will be the sum of all advances made
on account thereof, less all principal
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payments actually received by Bank in collected funds. Advances on
the Revolving Note will be made as requested, but the aggregate
advances under the terms of the Revolving Note may not at any one
time exceed the Bank Advance Amount. The Bank will have no
obligation to advance on the Revolving Note unless the conditions
established in P. P. 2.1.1, 2.1.2, and 4.0-4.8, ET SEQ., have been
satisfied or after the occurrence of an Event of Default or an event
which under this Agreement may constitute an Event of Default, which
shall be continuing and uncured. If an Event of Default or an event
which under this Agreement may constitute an Event of Default is
cured by Borrowers, or resolved or waived in writing by Bank, sums
under the Revolving Note will be available for advance, subject to
the other restrictions of this Agreement.
2.2 TERM NOTE. Greystone shall execute and deliver to Bank a Note
evidencing a FIVE MILLION FIVE HUNDRED THOUSAND DOLLAR ($5,500,000.00) term loan
payable to Bank ("Term Note"), or so much as may be advanced hereunder. A full,
true and correct copy of the Term Note is attached as Exhibit "2". The Term Note
shall bear interest at the Floating Interest Rate at all times on the advanced
and unpaid principal sums as set out in the Term Note. Interest shall be payable
monthly. The Term Note will be payable in accordance with the Term Note.
2.2.1 TERM NOTE FUNDING PURPOSES. Bank shall advance to
Greystone the sums on the Term Note to retire certain acquisition
debt incurred and owed by Parent or Greystone to Greystone Plastics,
Inc., an Iowa corporation and secondarily to pay and defer the costs
of this transaction and related working capital purposes .
2.3 GLOG NOTE. GLOG shall execute and deliver to Bank a Note
evidencing a FIVE MILLION DOLLAR ($5,000,000.00) term loan payable to Bank
("GLOG Note"), or so much as may be advanced hereunder. A full, true and correct
copy of the GLOG Note is attached as Exhibit "3". The GLOG Note shall bear
interest at the Floating Interest Rate at all times on the advanced and unpaid
principal sums as set out in the GLOG Note. Interest shall be payable monthly.
The GLOG Note will be payable in accordance with the GLOG Note.
2.3.1 GLOG NOTE ADVANCES. Bank shall advance sums on the
GLOG Note to fund the purchase from Paul A. Kruger of $5 million of
Parent's Series 2003 Cumulative Convertible Senior Preferred Stock
("Preferred Stock") and only then on the condition that Paul Kruger
pays and applies all sums (of at least $5,000,000.00) received
related thereto to the Bank for application to sums due by Paul
Kruger to Bank.
2.4 PREPAYMENT. The Borrowers will have the right to prepay the
Notes or GLOG Note in whole or in part at any time without premium or penalty,
but with interest at the date of prepayment if the Notes or GLOG Note are paid
in full.
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2.5 SECURITY INTEREST IN ACCOUNTS RECEIVABLE AND INVENTORY. The
descriptions of Qualified Accounts Receivable and Qualified Inventory are for
definitional purposes to determine the respective Borrowing Bases and the
designation and definition of the same shall not be interpreted or implied to
limit the Bank's security interest to such assets as Bank claims and has a first
lien or security interest in all Accounts and Inventory now owned or hereafter
acquired of the Borrowers.
2.6 PAYMENTS AND COLLECTIONS. Borrower hereby irrevocably waives the
right to direct the application of any and all payments and collections any time
or times hereafter received by Bank from and on behalf of Borrower and Borrower
hereby irrevocably agrees that Bank shall have the continuing exclusive right to
apply and reapply any and all such payments and collections received at any time
or times hereafter by Bank or its agent against the obligations owed by each of
the respective Borrowers to Bank in such manner as Bank may deem advisable.
2.7 BORROWING BASE ADVANCES. Upon receipt by Bank of a Current
Borrowing Base Certificate, as set out in P. 4.1, Bank shall establish the Bank
Advance Amount for Greystone, which is available for advance on the Revolving
Note of Greystone for the month following receipt by Bank of the Current
Borrowing Base Certificate from Greystone. Bank shall make advances into
Greystone's operating account or designated accounts based on the Bank Advance
Amount then available on the then Current Borrowing Base as established by the
Current Borrowing Base Certificate. Bank shall have no obligation to advance any
sums if the Borrowing Base Certificate is over thirty-one (31) days old.
2.8 FEES. Borrowers will pay or shall have paid to Bank all costs
and reasonable attorney's fees incurred by Bank attendant to the preparation of
the Loan Documents as well as the following fees:
(i) Borrowers shall pay to Bank any and all of the
reasonable and necessary costs of processing and
obtaining waiver(s) for Borrower (including all costs
of review, inspection, preparation, analysis and
consultation with Borrower, attorneys, consultants
and/or any participants in the Notes) of any of the
provisions of this Agreement and such fees for the
waiver of the covenants as Bank may reasonably require
to process and waive any of the provisions hereof; and
(ii) Any costs of title insurance, title examination,
abstracting, required appraisals, filing fees,
mortgage tax, flood certifications, flood insurance
(if required by law), environmental studies, including
any follow-up environmental reports or studies, as
well as all of the costs incurred by Bank associated
with or related to the execution, delivery and
performance of this transaction which may be lawfully
passed to and paid by Borrower.
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3.0 SECURITY. As a security for any and all Indebtedness of every
kind and description of the Borrowers to the Bank, including without limitation
all advances and loans evidenced by the Notes or GLOG Note and all other
agreements with the Borrowers, including extensions, renewals or changes in the
form of the Notes or GLOG Note or other evidences of indebtedness and including
all other indebtedness or obligations now existing or hereafter created or
arising, direct or indirect, absolute or contingent, joint and several or joint
or several due or to become due, howsoever created, evidenced or arising,
Borrowers grant to the Bank the following collateral as well as other collateral
as may be agreed to from time to time by the Borrowers and the Bank (hereinafter
referred to as "Collateral"), to-wit:
3.1 SECURITY INTEREST. To secure only the Notes, a security interest
in all assets of Borrower, including, without limitation, Accounts, Inventory,
Contract Rights, General Intangibles, Equipment, Furniture, Fixtures and
Insurance now owned or hereafter acquired by the Borrower, as more fully
described in the Security Agreement executed on the same date herewith.
3.2 GUARANTIES. The guaranties of payment of the Notes and GLOG Note
by the Guarantors.
3.2.1 GUARANTY REDUCTION. As payments are made that reduce the
principal balance of the Term Note, the Guarantors of the Term
Note under the 2.50 MM Guaranty shall be entitled to a pro rata
reduction of the Limited Guaranteed Amount of the 2.50 MM
Guaranty due on said Guaranty equal to forty-five percent (45%)
of the reduction of the principal balance of the Term Note from
regular payments or prepayments and not from the sale of
Collateral. (For example, if the principal balance of the Term
Note is reduced by $2,000,000.00 from payments, the Limited
Guaranteed Amount of the 2.50 MM Guaranty will be reduced by 45%
from $2,500,000 by $900,000.00 to the sum of $1,600,000.00).
3.2.2 ROSENE PLEDGE. Robert Rosene or his Affiliates shall
pledge a certificate of deposit maintained with Bank to Bank to
secure the payment of Robert Rosene's guaranties.
3.3 ACCOUNT(S). A pledge or assignment of the operating accounts
into which the accounts receivable of the Borrower are deposited.
3.4 MORTGAGE. Greystone shall grant Bank a second lien on real
estate owned by such parties to secure payment of the Notes. The real property
is described on Schedule "3.4" attached hereto.
3.5 SUBORDINATION. Borrower shall cause all of its Affiliates and
Paul Kruger and any of his Affiliates to execute subordination agreements (on
terms and conditions acceptable to Bank) as to all liens, claims, advances or
other rights or demands. Bank must be a signatory to all subordination
agreements implementing this provision and approve form and substance of those
agreements.
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3.5 PLEDGE. GLOG shall pledge all of its Preferred Stock to Bank to
secure the GLOG Note.
3.6 OTHER INSTRUMENTS. Borrowers also will execute and deliver all
financing statements, other instruments, agreements or documents required by
Bank to perfect its mortgage or security interests and to deliver such
additional collateral as is required.
4.0 CONDITIONS PRECEDENT. The obligation of Bank to perform this
Agreement and to make the initial or any future advances under the Notes or GLOG
Note is subject to the receipt in form and substance satisfactory to the Bank of
the Loan Documents and the performance by the Borrowers, to-wit:
4.1 BORROWING BASE CERTIFICATE. On at least a monthly basis,
Greystone shall provide Bank with a Borrowing Base Certificate ("Current
Borrowing Base Certificate") in a form substantially as set forth in Schedule
"4.1", to establish the sums available for advance on the Revolving Note in
compliance with the provisions of P. 2.0, ET SEQ., above and Bank shall have no
obligation to advance on the Revolving Note unless Greystone has provided Bank
with a Current Borrowing Base Certificate for such Revolving Note.
4.2 INVENTORY AND ACCOUNTS RECEIVABLE. Borrower will provide a
summary of the aging of accounts receivable and a total for inventory on hand by
the 15th day of each month, as well as any other information Bank may require.
This shall constitute a representation as to the items contained in such summary
and that all terms and conditions of this Agreement have been met with respect
to each requested advance.
4.3 CORPORATE EXISTENCE. Each of the Borrowers will provide
satisfactory evidence to the Bank that each of the Borrowers is a limited
liability company validly existing pursuant to the law of the State of Oklahoma
and under the terms set forth in the Borrowers' Articles of Incorporation and
by-laws, certified copies of which have been provided to the Bank.
4.4 LOAN DOCUMENTS. The Loan Documents and all other instruments
incidental to the transaction hereby contemplated will have been duly issued,
executed and delivered to the Bank, all in a form and substance satisfactory to
the Bank.
4.5 AUTHORITY. The Bank shall have received a certified copy of
corporate Resolutions and other documents reasonably required to authorize the
execution, delivery and performance of all of the Loan Documents by the parties
thereto and all in a form satisfactory to the Bank.
4.6 ADVANCE REQUEST. The Borrower is not in default under any
provisions of this Agreement as defined herein, and with regard to advances,
Borrower, for the various Notes, provides to Bank a request for an advance on a
Borrowing Base Certificate for the Note on which the advance is requested in a
form and substance satisfactory to Bank.
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5.0 REPRESENTATIONS AND WARRANTIES. Borrowers severally represent
and warrant that:
5.1 LAWFUL EXISTENCE. Each of the Borrowers are duly organized and
legally existing and in good standing under the laws of the State of Oklahoma.
5.2 AUTHORITY. The execution, delivery and performance by Borrowers
of this Agreement and the Loan Documents and the performance by them of their
respective obligations (a) are and will be within the limited liability company
powers of the Borrowers; (b) have been and will be duly authorized by the Board
of Directors, Managers or Members of the Borrowers; (c) are not and will not be
in contravention of the laws or the terms of the Articles, Operating Agreements,
By-laws, material agreement or undertaking to which the Borrowers or any of
their property is bound; (d) do not require any consent or approval (including
governmental) which has not been given; (e) do not contravene any statute, rule
or regulation, or any other contractual or government restriction upon them; (f)
are not subject to the jurisdiction of any state or federal agency or regulatory
authority; and (g) would not result in the imposition of liens, charges or other
encumbrance on any of the material properties or assets of the Borrowers except
as may be required pursuant to this Agreement.
5.3 BINDING OBLIGATION. This Agreement and all Loan Documents will
be, when executed and delivered, legal and valid and binding obligations of each
of the Borrowers, enforceable in accordance with their terms, except as may be
limited by bankruptcy, insolvency similar laws and/or judicial decisions
affecting creditors' rights generally.
5.4 FINANCIAL DATA. Subject to any limitations stated herein, any
balance sheet, earnings statement and other financial statement which have been
or shall hereafter be furnished to Bank to make this loan, do, or as to
subsequent financial statements, will fairly represent the financial condition
of the Borrowers as of the dates for which the same were furnished; have been
prepared in accordance with G.A.A.P. consistently applied; and no material
adverse change has since occurred in the condition, financial or otherwise, of
the Borrowers; reports and other papers and data furnished to the Bank are or
will be at the time same are so furnished, accurate and correct in all material
respects sufficient to give Bank as complete and accurate knowledge of
Borrowers' financial position as possible.
5.5 LITIGATION. There is not now pending against the Borrowers or
Parent, nor to the knowledge of the Borrowers or Parent is there threatened any
litigation, legal or administrative proceeding, investigation or any other
action of any nature against it or affecting it, the outcome of which would
materially and adversely affect its financial condition or business.
5.6 COLLATERAL. All of the Collateral hypothecated to the Bank
hereunder is and will be owned by the respective Borrowers free and clear of all
liens, claims or encumbrances whatsoever, except for the rights herein granted
to the Bank, and Borrowers have the right to cause such Collateral to be
hypothecated to the Bank as security for Borrowers' obligations, except for
Permitted Encumbrances, Permitted Liens, liens expressly subordinated to the
Bank's security interest or as recognized by Bank in writing.
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5.7 TAXES. Borrowers have valid extensions or have filed all federal
and state tax returns to be filed, paid all taxes shown thereon to be due,
including interest and penalty, if any, or provided an adequate reserve for
payment thereof, except for federal or state tax liability which has been
disclosed to the Bank in writing.
6.0 AFFIRMATIVE COVENANTS. Until the full and final payment of all
obligations, Borrowers SEVERALLY covenant and agree that unless the Bank waives
compliance in writing, it will perform or cause to be performed the following
agreements:
6.1 FINANCIAL STATEMENTS. Furnish to Bank for Borrowers and/or
Parent:
(i) Within one hundred twenty (120) days after and at
the close of each fiscal year of Borrowers and Parent: each of their
consolidated and consolidating financial statements (to the extent
applicable) including a balance sheet, statement of income and
retained earnings, and a statement of cash flows for such fiscal
year, audited by an independent certified public accounting firm
acceptable to Bank (except for GLOG, which shall not be required to
provide an audit); all such financial reports to be prepared in
accordance with G.A.A.P., consistently applied (except where changes
in generally accepted accounting principles have resulted in
inconsistent application of such principles between accounting
periods and such resulting inconsistency in generally accepted
accounting principles is disclosed in the financial statements);
(ii) Within forty-five (45) days after the close of each
quarter of a year: a balance sheet and statement of income for
Borrower and/or Parent from the beginning of such fiscal year to the
end of such quarterly period, prepared in conformity with G.A.A.P.,
consistently applied, certified by an appropriate financial officer
of Borrowers that an Event of Default has not occurred;
(iii) Borrowers shall use its best efforts to cause each
Guarantor to provide Bank with financial statements and copies of
their most recent tax return at least annually or at such times as
Bank may reasonably request;
(iv) Copies of and access to such other books, records
and reports, including unaudited financial statements of Borrowers,
as Bank may from time to time reasonably request; and
(v) On execution of this Agreement and each year
thereafter, each of the Borrowers shall deliver to Bank a list of
all assets in sufficient form to allow Bank to perfect its lien or
security interest on all of such assets.
6.2 INSPECTION. Borrowers shall each permit any authorized
representative of the Bank to visit and inspect any of the properties (including
inventory if applicable) of the
15
Borrowers, including books and records, and to make extracts therefrom, and to
discuss its affairs and finances as the Bank may reasonably request.
6.3 CONDUCT OF BUSINESS. Borrowers shall maintain their lawful
existence and use their best efforts to maintain in full force and effect all
material licenses, leases, contracts and other rights necessary or desirable to
the conduct of their business.
6.4 ADVANCES. Borrower will only use advances under the Revolving
Notes for working capital consistent with the terms of this Agreement or short
term capital needs in the ordinary course of Borrower's business.
6.5 PAYMENT OF TAXES AND ASSESSMENTS. Borrowers will duly pay and
discharge, or cause to be paid and discharged, all taxes, assessments and other
government charges or rents imposed upon it and its properties or any part
thereof, or upon the income or profits therefrom, or due by them, as well as all
claims for labor, materials or supplies which if unpaid might by law become a
lien or mechanic's or materialmen's lien on any property of the Borrowers,
except for such items as are being in good faith appropriately contested by
Borrowers and with respect to material liens or charges of amounts for which
adequate reserves are set aside and maintained on the books of the Borrowers.
6.6 NOTICES. Borrowers, or any of them, will promptly give written
notices to the Bank of (a) all litigation affecting Borrowers, or either of
them, where the amount involved, either in the case or in the aggregate, is
THREE HUNDRED THOUSAND DOLLARS ($300,000.00) or more; (b) any claim or notice of
an alleged or purported violation of any rule, law or statute of any
governmental or regulatory body, law enforcement authority or other person
relating to the Property upon which Borrowers will principally operate their
business; (c) any labor controversy resulting in or threatened to result in a
strike; (d) any Event of Default under the terms of this Agreement or any
instrument provided herein; or (e) a violation of any of the terms of the Loan
Documents by any party other than the Bank.
6.7 INSURANCE. Borrowers will keep adequately insured by duly
licensed insurers, insurance on all premises used in operation of their business
(whether owned or leased), on all inventory and equipment of Borrowers, and also
keep Borrowers adequately insured at all times with responsible insurance
carriers against liability on account of damage to persons or property and under
all applicable workmen's compensation laws. All such insurance shall be in such
amounts and with such coverage as is usually carried by corporations of a
similar size engaged in the same or similar business similarly situated. All
such property or hazard insurance shall name Bank as a loss payee, shall be
payable to Bank and Borrowers as their interests may appear and shall provide
for at least thirty (30) days advance notice of cancellation to Bank. Upon
request of Bank, Borrowers shall furnish insurance certificates evidencing
compliance with this section. This section shall not require for compliance with
its terms that Borrowers have an appraisal made of their assets.
6.8 FURTHER ASSURANCES. Borrowers will promptly cure any defects in
the issuance of the Notes or GLOG Note and the execution of this Agreement, the
security agreements or any
16
other instrument or documents referred to or mentioned herein. Borrowers will
immediately execute and deliver to the Bank upon request all such other and
further instruments as may be reasonably required or desired by the Bank from
time to time in compliance with or in accomplishment of the covenants and
agreements, security agreements and such other instruments and documents
referred to or mentioned herein, or to further evidence and more fully describe
the properties intended as security for the obligations, and to be subject to
the Security Agreement; also to correct any omission in the Security Agreement
or any Exhibit thereto or to perfect any Security Interest or liens, to make any
recordings, to file any notices, or to obtain any consents, all as may be
necessary or appropriate in connection therewith.
6.9 GOVERNMENT REGULATIONS. Borrowers will comply in all material
respects with the laws, rules, regulations and requirements of any governmental
authority having jurisdiction over the Borrowers unless validly contested in a
manner so as not to cause a loss or forfeiture of any rights, interests or
obligations materially secured to the Bank pursuant to this Agreement or any of
the Loan Documents.
6.10 DAMAGE AND LOSS TO COLLATERAL. The Borrowers will promptly
notify the Bank of any material damage to and/or loss of any of the Collateral
and the costs or expenses necessary for the repair and replacement thereof.
7.0 NEGATIVE COVENANTS. Until payment in full of the Notes or GLOG
Note, the Borrowers, GLOG and/or Parent (to the extent applicable) agree that
unless the Bank consents in writing, the Borrower, GLOG and/or Parent (to the
extent applicable) severally will not perform or permit to be performed, any of
the following acts:
7.1 LIENS. Except for Permitted Encumbrances and liens expressly
subordinated to the Bank's security interest, Borrowers will not create, assume
or suffer to exist any lien, charge or encumbrance on any of the properties
encumbered to the Bank, except as to liens for taxes, assessments and other
governmental charges or levies or the claims or demands of landlords, carriers,
warehousemen, mechanics, laborers, materialmen and other like persons arising by
operation of law in the ordinary course of business for sums which are not yet
due and payable, or such liens the enforcement of which are effectively stayed
and are being contested in good faith by appropriate proceedings diligently
conducted; deposits or pledges to secure the payment of workmen's compensation,
unemployment insurance or other social security benefits or obligations, public
or statutory obligations, surety or appeal bonds or other obligations of a like
general nature incurred in the ordinary course of business; zoning restrictions,
easements, licenses, restrictions on the use of real property or minor
irregularities in title thereto which do not materially impair the use of such
property in the operation of the Borrowers' business; rights reserved to or
vested in any municipality or governmental, statutory or public authority to
control or regulate any property of the Borrowers or to use such property in a
manner which does not materially impair the use of such property for the
purposes for which it is held by the Borrowers (hereafter also "Permitted
Liens").
7.2 TRANSFER OF INTEREST. Without the prior written consent of the
Bank, Borrowers will not permit, assist or cause the sale, assignment, transfer,
conveyance or encumbrance, in
17
whole or in part, or of a substantial part or a bulk sale of the assets of
Borrowers nor enter into a sale and leaseback for part or all of the assets of
Borrowers, which transaction is or would be out of the ordinary course of
Borrowers' business.
7.3 DEBT. Without prior written consent of Bank, Borrowers will not
create, assume or suffer to exist any indebtedness for borrowed money, or issue
or sell any obligation of the Borrowers (whether absolutely, contingently or
otherwise), excluding the debt evidenced by the Loan Documents or regularly
accruing accounts payable or other ordinary course of business obligations,
except for subordinated debt or account payables which are unsecured and without
priority over the sums due on the Notes or GLOG Note, respectively, hereunder.
7.4 LOANS. Borrowers will not make any loans, advances or extensions
of credit to persons, firms or corporations, nor will Borrowers assume,
guaranty, endorse or otherwise become contingently liable for the obligations of
any other person, firm, corporation or individual except by the endorsement of
negotiable instruments for deposit or collection in the ordinary course of
Borrowers' business or other ordinary course of business transactions, except
for advances between affiliated companies.
7.5 ADVANCES. Borrowers will not use monies advanced under the Notes
or GLOG Note for purposes other than consistent with the provisions of this
Agreement, in the ordinary course of Borrowers' business or as set out in
Schedule "7.5" attached hereto.
7.6 MERGER. Without the prior consent of Bank, neither Borrowers nor
Parent will merge or consolidate into any other corporation or partnership; nor
enter into any pool, joint venture, syndicate or any other combination with any
person, firm or entity; or acquire substantially all of the assets of any other
corporation for cash or by issuing its capital stock in exchange therefor or
otherwise.
7.7 LIQUIDATION. Without the prior written consent of the Bank,
neither Borrowers nor Parent will liquidate, dissolve or enter into any
consolidation or merger, which constitutes a liquidation.
7.8 CHANGE IN BUSINESS. Borrowers will not engage in any business
activities substantially different from or unrelated to the present or proposed
business activities and operations, without the prior written consent of the
Bank.
7.9 DIVIDENDS AND DISTRIBUTIONS. Except with Bank's prior consent,
which will not be unreasonably withheld and for which Bank shall receive no fee
or recover no expense, Parent will not declare or pay any cash or asset dividend
on any of its shares or make any other distribution, gift or disposition of
assets to shareholders or related persons to such shareholders in respect of its
shares, or make or commit to make, any payment on account of the purchase,
redemption or other retirement of any of its shares or warrants or options
therefore. Borrower may pay Inter-Company Liabilities and may receive
Inter-Company Receivables in the ordinary course of business.
18
7.10 CAPITAL EXPENDITURES. Borrower will not expend more than the
aggregate of $500,000.00 in any fiscal year for new capital expenditures, and
without first giving Banks prior written notice when such expenditures exceed
the sum of $250,000.00. This covenant shall include any expenditures for capital
leases. Borrower will further provide the Bank with a schedule of all capital
expenditures at least annually.
7.11 PAYMENTS TO SUBORDINATED DEBT. Borrower shall not, during the
term of this Agreement, pay sums on subordinated debt to Affiliates or Related
Parties, if any, without the written consent of Bank; provided that with the
Bank's written consent, Borrower may create subordinated debt that is unsecured
and with a lower priority to the payment of the sums owed Bank hereunder and pay
interest on such subordinated debt with the express written consent of Bank. The
Bank will not charge a fee to Borrower or seek to recover an expense from
Borrower related to Borrower's request that the Bank approve a payment on
subordinated debt.
8.1.0 GREYSTONE EVENTS OF DEFAULT. Regardless of the terms of any
note or other instrument evidencing indebtedness from Borrower to Bank, the
occurrence of the following events shall constitute a Greystone Event of Default
hereunder, which, at the option of Bank (for so long as the Event continues)
shall make all sums of interest and principal remaining on the obligations
payable to Bank under the Notes immediately due and payable, without notice of
default, presentment or demand for payment, protest or notice of payment or
dishonor, or any other notices of any kind or character, and the Bank may
terminate all obligations of the Bank to make further disbursements or advances
under the note after the occurrence of any of the following events, which shall
be continuing:
8.1.1 NON-PAYMENT. The failure to pay when due any installment of
interest or principal in accordance with the terms of the Notes or other
instrument evidencing Borrower's indebtedness to Bank, or non-payment when due
of any other sums payable by Borrower, Parent or Guarantors of the Notes to
Bank.
8.1.2 INVOLUNTARY LIEN. The attachment of any involuntary lien in
the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) or more, of any kind or
character, upon the assets or property of the Borrower, except for taxes due,
but not in default, and liens being contested in such a manner as to prevent the
foreclosure thereof and except for Permitted Liens.
8.1.3 JUDGMENT. The entry against Borrower or Parent, of any
judgment in the amount of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) or more
on a claim not covered by insurance which has not been stayed pending appeal.
8.1.4 ACT OF INSOLVENCY. Either the Borrower or Parent shall (i)
apply for or consent to the appointment of a receiver, trustee or liquidator of
all or a substantial part of its assets, (ii) admit in writing an inability to
pay its debts as they fall due, (iii) make a general assignment for the benefit
of its creditors, (iv) be adjudicated a bankrupt or insolvent, (v) file a
voluntary petition in bankruptcy or file a petition or answer seeking
reorganization or arrangement with the creditors, seeking to take advantage of
any insolvency laws, or (vi) admit by answer, default or
19
otherwise, the material allegations of a petition filed against it in any
bankruptcy, reorganization, rearrangement or insolvency proceedings.
8.1.5 CONDEMNATION. The condemnation, seizure or appropriation of
all, or such as in the option of the Bank, constitutes substantially all of the
property of either of the Borrower or Parent.
8.1.6 SUSPENSION OF BUSINESS. The voluntary or involuntary
suspension of business by either of the Borrower or Parent outside of the
ordinary course of either of the Borrower's business, for a period deemed by the
Bank to substantially affect Borrower's ability to repay its obligations.
8.1.7 SECURITY INTEREST. The failure of any security interest,
mortgage or assignment to constitute a valid first and prior security interest
or lien on the Collateral for the Notes, except as otherwise provided herein or
for Permitted Encumbrances or Permitted Liens. Upon such failure, Borrower shall
have fifteen (15) days, after notice by Bank to Borrower or after Borrower
otherwise know of such failure, to cure this event unless Bank is compelled to
take immediate actions to protect its interest.
8.1.8 GENERAL DEFAULT. The breach of or default by Borrower or
Parent under any covenant, agreement, term, condition, provision,
representation, or warranty contained in this Agreement, not specifically
referred to in this section, if such breach or default is not cured within
fifteen (15) days after the notice by Bank to Borrower of the occurrence thereof
or after Borrower otherwise know of such event.
8.1.9 TERMINATION OF CORPORATE EXISTENCE. Either the Borrower or
Parent ceases to be a validly existing entity under the laws of the State of
Oklahoma, which shall continue in excess of thirty (30) days after notice by
Bank of such default.
8.1.10 MATERIAL ADVERSE EFFECT. A Material Adverse Effect shall
occur which in the sole discretion of the Bank impairs the ability of either of
the Borrower or the Parent or Guarantors to repay the indebtedness under the
Notes, this Agreement or the Loan Documents or realize the value out of the
Collateral pledged hereunder.
8.1. 11 CURE. Except for payment failures and except as otherwise
stated herein, Borrower shall be given ten (10) days notice of and opportunity
to cure a Greystone Event of Default other than a Material Default.
8.2.0 GLOG EVENTS OF DEFAULT. Regardless of the terms of any note or
other instrument evidencing indebtedness of GLOG to Bank, the occurrence of the
following events shall constitute a GLOG Event of Default hereunder as to the
GLOG Note and GLOG Indebtedness, which, at the option of Bank (for so long as
the Event continues) shall make all sums of interest and principal remaining on
the obligations payable to Bank under the GLOG Note immediately due and payable,
without notice of default, presentment or demand for payment, protest or notice
of payment or dishonor, or any other notices of any kind or character,
20
and the Bank may terminate all obligations of the Bank to make further
disbursements or advances under the note after the occurrence of any of the
following events, which shall be continuing:
8.2.1 NON-PAYMENT. The failure to pay when due any installment of
interest or principal in accordance with the terms of the GLOG Note or other
instrument evidencing GLOG's indebtedness to Bank, or non-payment when due of
any other sums payable by GLOG or Guarantors of the GLOG Note to Bank.
8.2.2 INVOLUNTARY LIEN. The attachment of any involuntary lien in
the sum of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) or more, of any kind or
character, upon the assets or property of GLOG, or either of them, except for
taxes due, but not in default, and liens being contested in such a manner as to
prevent the foreclosure thereof and except for Permitted Liens.
8.2.3 JUDGMENT. The entry against GLOG of any judgment in the amount
of THREE HUNDRED THOUSAND DOLLARS ($300,000.00) or more on a claim not covered
by insurance which has not been stayed pending appeal.
8.2.4 ACT OF INSOLVENCY. GLOG shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of all or a substantial part of
its assets, (ii) admit in writing an inability to pay its debts as they fall
due, (iii) make a general assignment for the benefit of its creditors, (iv) be
adjudicated a bankrupt or insolvent, (v) file a voluntary petition in bankruptcy
or file a petition or answer seeking reorganization or arrangement with the
creditors, seeking to take advantage of any insolvency laws, or (vi) admit by
answer, default or otherwise, the material allegations of a petition filed
against it in any bankruptcy, reorganization, rearrangement or insolvency
proceedings.
8.2.5 CONDEMNATION. The condemnation, seizure or appropriation of
all, or such as in the option of the Bank, constitutes substantially all of the
property of the GLOG.
8.2.6 SUSPENSION OF BUSINESS. The voluntary or involuntary
suspension of business by GLOG outside of the ordinary course of GLOG's
business, for a period deemed by the Bank to substantially affect GLOG's ability
to repay its obligations.
8.2.7 SECURITY INTEREST. The failure of any security interest,
mortgage or assignment to constitute a valid first and prior security interest
or lien on the Collateral for the GLOG Note, except as otherwise provided herein
or for Permitted Encumbrances or Permitted Liens. Upon such failure, GLOG shall
have fifteen (15) days, after notice by Bank to GLOG or after GLOG otherwise
know of such failure, to cure this event unless Bank is compelled to take
immediate actions to protect its interest.
8.2.8 GENERAL DEFAULT. The breach of or default by GLOG under any
covenant, agreement, term, condition, provision, representation, or warranty
contained in this Agreement, not specifically referred to in this section, if
such breach or default is not cured within fifteen (15)
21
days after the notice by Bank to GLOG of the occurrence thereof or after GLOG
otherwise know of such event.
8.2.9 TERMINATION OF CORPORATE EXISTENCE. GLOG ceases to be a
validly existing entity under the laws of the State of Oklahoma, which shall
continue in excess of thirty (30) days after notice by Bank of such default.
8.2.10 MATERIAL ADVERSE EFFECT. A Material Adverse Effect shall
occur which in the sole discretion of the Bank impairs the ability of either
GLOG or Guarantors to repay the indebtedness under the GLOG Note, or realize the
value out of the Collateral pledged to secure the GLOG Note.
8.2.11 CURE. Except for payment failures and except as otherwise
stated herein, GLOG shall be given ten (10) days notice of and opportunity to
cure a GLOG Event of Default other than a Material Default.
9.0 REMEDIES. If an Event of Default occurs, which shall be
continuing, the Bank may exercise any one or more of the following options:
9.1 ACCELERATION OF THE NOTES. The Bank may declare the Notes in the
event of a Greystone Event of Default or the GLOG Note in the event of a GLOG
Event of Default to be immediately due and payable, at which time the same will
be due and payable and the Bank will be entitled to proceed selectively and
successively to enforce the Bank's rights under the Notes or GLOG Note,
respectively, the Loan Documents, or any of the other documents securing the
payment of the Notes or GLOG Note, respectively, without limitation.
9.2 SELECTIVE ENFORCEMENT. In the event the Bank elects to
selectively and successively enforce the Bank's rights under the Loan Documents
or the instruments securing payment of the Notes or GLOG Note, such action will
not be deemed to be waiver or discharge of any other lien or encumbrance
securing payment of the Notes or GLOG Note, respectively, until such time as the
Bank has been paid in full all sums advanced by the Bank under the Notes or GLOG
Note, together with all interest, fees and other Bank's expenses including, but
not limited to, a reasonable attorneys' fee.
9.3 WAIVER OF DEFAULT. The Bank may waive any default which has
occurred and any of the consequences of such default, but no such waiver will
extend to any subsequent or other default or impair any consequences of such
subsequent or other default.
9.4 SETOFF. Upon the occurrence of an Event of Default which shall
be continuing, any indebtedness from the Bank to Greystone upon a Greystone
Event of Default or to GLOG upon a GLOG Event of Default, including without
limitation, under any general or special deposit account, may be setoff or
otherwise applied by the Bank, under a general lien covering such indebtedness
which is hereby granted, to any obligation of the Borrowers under this Agreement
to Bank at any time and from time to time, either before or after maturity and
without
22
demand or notice to anyone. The rights granted by this paragraph shall be in
addition to the rights of the Bank under statutory banker's lien or other rights
of setoff.
9.5 ADDITIONAL RIGHTS. When any indebtedness or liability of the
Borrowers hereunder is due and payable and is unpaid in whole or in part, the
Bank shall have, in addition to all other rights and remedies, howsoever
granted, the rights and remedies under the Oklahoma Uniform Commercial Code (the
"Code"), regardless of whether the Code is the law of the jurisdiction where the
rights and remedies are asserted, including the right to take possession of the
Collateral, and for that purpose, the Bank may, so far as the Borrowers can give
authority therefor, enter upon the premises where the Collateral may be located
and remove the same therefrom. Bank may further require Borrowers to assemble
the Collateral and make it available to Bank at a place mutually convenient to
Bank and Borrowers. Unless the Collateral is perishable or threatens to decline
speedily in value, or is of a type customarily sold in a recognized market, the
Bank shall give Borrowers at least ten (10) days prior written notice which
shall be deemed to be a reasonable notice under the Code before the time after
which any public or private sale or other intended disposition is to be made,
and any such notice shall be deemed commercially reasonable.
9.6 NON-WAIVER OF RIGHTS. No delay or omission to exercise any
right, power or remedy accruing to Bank upon any breach or default of Borrowers
under this Agreement or any of the Loan Documents or other agreements or
instrument executed pursuant hereto or in connection herewith shall impair any
such right, power or remedy of Bank, nor shall it be construed to be a waiver of
any such breach or default or any acquiescence therein, or of any similar breach
or default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default heretofore occurring.
Any waiver, permit, consent or approval of any kind or character on the part of
the Bank, or any breach or default or conditions in the making of any loan under
this Agreement, or any waiver on the part of the Bank of any condition or
provision of this Agreement or any agreement or instrument executed pursuant
hereto or in connection herewith, must be in writing signed by the Bank and
shall be effective only to the extent of the provisions of such writing
specifically set forth. All other remedies, either under this Agreement or by
law otherwise afforded the Bank, shall be cumulative and not alternative.
Notwithstanding any term contained herein, the occurrence of an
Event of Default by GLOG or Greystone shall not constitute an Event of Default
as to the other unless an Event of Default has occurred as to the other.
10.0 MISCELLANEOUS.
10.1 INDEMNITY. The Borrowers hereby agree to indemnify and hold the
Bank harmless from any liability, loss, damage or expense, including reasonable
attorneys' fees that the Bank may incur in good faith in compliance with the
enforcement of the terms of this Agreement or in defending the terms of this
Agreement or any of the Loan Documents.
23
10.2 AGREEMENT. This Agreement has been delivered and accepted and
it shall be a contract made under and shall be entered into and governed by the
laws of the State of Oklahoma. The Notes or GLOG Note shall be deemed to be
obligations made under and shall be construed in accordance with and governed by
the laws of the State of Oklahoma.
10.3 PARTIAL INVALIDITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity only, without invalidating the remainder of
such provision or the remaining portions of this Agreement.
10.4 BINDING EFFECT. This Agreement shall be binding upon the
Borrowers and the Bank and each of their respective successors and assigns and
shall inure to the benefit of the Bank and its successors and assigns.
10.5 NOTICES. All notices, requests and demands shall be served by
registered or certified mail as follows:
BORROWERS:
----------
Greystone Manufacturing, L.L.C.
GLOG Investment, L.L.C.
1613 East 15th Street
Tulsa, Oklahoma 74120
William W. Pritchard
Del L. Gustafson
Hall, Estill, Hardwick, Gable, Golden & Nelson
320 South Boston Avenue
Suite 400
Tulsa, Oklahoma 74103
BANK:
-----
THE F&M BANK & TRUST COMPANY
1330 South Harvard
P. O. Box 4500
Tulsa, Oklahoma 74159
and
J Schaad Titus
Titus, Hillis & Reynolds, P.C.
First Place Tower
15 East Fifth Street, Suite 2750
24
Tulsa, Oklahoma 74103
or at such other addresses as any party hereby designates for such purposes and
a written notice to the other parties hereto. Notices will be deemed to have
been given on the third business day after notice is deposited in the mail
properly addressed, postage prepaid, certified mail, return receipt requested.
10.6 SECTION HEADINGS. The section and paragraph headings of this
Agreement are for convenience and shall not affect, limit or expand any term or
provision hereof.
10.7 COUNTERPARTS. This Agreement may be executed in as many
counterparts as may be deemed necessary, convenient and it shall not be
necessary that the signatures of the all parties hereto be contained in any one
counterpart hereof; and each counterpart shall be deemed an original, but all of
which together shall be construed as one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused the instrument to
be duly executed on the date first above written.
(SIGNATURE PAGES FOLLOW)
25
BORROWERS:
GREYSTONE MANUFACTURING , L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: /s/ Warren F. Kruger
----------------------------------
Manager
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On March 4th, 2005, this instrument was acknowledged before me by
Warren F. Kruger as Manager of GREYSTONE MANUFACTURING, L.L.C., an Oklahoma
limited liability company.
Given under my hand and seal the day and year last above written.
/s/ Kay Maness
----------------------------------
NOTARY PUBLIC
( S E A L )
Notary Commission Number: 02007996
My Commission Expires: June 2, 2006
26
GLOG INVESTMENT, L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: /s/ Robert B. Rosene
-----------------------------------
ROBERT B. ROSENE, JR., MANAGER
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On March 4th, 2005, this instrument was acknowledged before me by
Robert B. Rosene as Manager of GLOG INVESTMENT, L.L.C., an Oklahoma limited
liability company.
Given under my hand and seal the day and year last above written.
/s/ Kay Maness
-----------------------------------
NOTARY PUBLIC
( S E A L )
Notary Commission Number: 02007996
My Commission Expires: June 2, 2006
27
BANK:
THE F&M BANK & TRUST COMPANY
BY: /s/ Steve McNeely
-----------------------------------
STEVE MCNEELY,
SENIOR EXECUTIVE VICE PRESIDENT
28
JOINING IN THIS AGREEMENT AS TO CERTAIN REPRESENTATIONS, WARRANTIES AND
PROVISIONS:
PARENT:
PALWEB CORPORATION,
AN OKLAHOMA CORPORATION
By: /s/ Warren F. Kruger
-----------------------------------
President
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On March 4th, 2005, this instrument was acknowledged before me by
Warren F. Kruger as President of PALWEB CORPORATION, an Oklahoma corporation.
Given under my hand and seal the day and year last above written.
/s/ Kay Maness
-----------------------------------
NOTARY PUBLIC
( S E A L )
Notary Commission Number: 02007996
My Commission Expires: June 2, 2006
29
SCHEDULE "3.3"
LIST OF OPERATING ACCOUNTS