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Please Note: String References To Sections Must Be Checked Manually
______________________________________________
CREDIT AND SECURITY AGREEMENT
BY AND BETWEEN
ROCKSHOX, INC.
AND
WELLS FARGO BUSINESS CREDIT, INC.
Dated as of: December 10, 1999
______________________________________________
CREDIT AND SECURITY AGREEMENT
Dated as of December 10, 1999
ROCKSHOX, INC., a Delaware corporation (the "Borrower"), and WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender"), hereby agree as follows:
"Accounts" means all of the Borrower's accounts, as such term is defined in the UCC, including without limitation the aggregate unpaid obligations of customers and other account debtors to the Borrower arising out of the sale or lease of goods or rendition of services by the Borrower on an open account or deferred payment basis.
"Adjusted Net Worth" means Book Net Worth minus the balance of deferred taxes on the asset side of the balance sheet.
"Advance" means a Revolving Advance.
"Affiliate" or "Affiliates" means any Person controlled by or under common control with the Borrower, including (without limitation) any Subsidiary of the Borrower. For purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit and Security Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Availability" means the difference of (i) the Borrowing Base and (ii) the then outstanding principal balance of the Revolving Note.
"Availability Reserve" means as of any date of determination, such amount or amounts as Lender may from time to time establish and revise in good faith and in its reasonable judgment reducing the amount of Revolving Advances which would otherwise be available to Borrower under the lending formula(s) provided for herein: (a) to reflect events, conditions, contingencies or risks which, as determined by Lender in good faith and in its reasonable judgment, do or may affect either (i) the Collateral or its value, (ii) the assets, business or prospects of Borrower, or (iii) the security interests and other rights of Lender in the Collateral (including the enforceability, perfection and priority thereof), or (b) to reflect Lender's good faith belief that any collateral report or financial information furnished by or on behalf of Borrower to Lender is or may have been incomplete, inaccurate or misleading in any material respect, or (c) in respect of any state of facts which Lender determines in good faith constitutes an Event of Default or may, with notice or passage of time or both, constitute an Event of Default.
"Banking Day" means a day other than a Saturday, Sunday or other day on which banks are generally not open for business in Pasadena, California.
"Base Rate" means the rate of interest publicly announced from time to time by Wells Fargo Bank, N.A. as its "base rate" (which "base rate" shall not deviate from the Wall Street Journal Prime Rate except for time lag in adjustments which shall not exceed five (5) Banking Days) or, if such bank ceases to announce a rate so designated, any similar successor rate designated by the Lender.
"Book Net Worth" means the difference between (i) the book value of tangible assets of the Borrower, which, in accordance with GAAP are tangible assets, after deducting adequate reserves in each case where, in accordance with GAAP, a reserve is proper and (ii) all Debt of the Borrower.
"Borrowing Base" means, at any time the lesser of:
"Capital Expenditures" for a period means any expenditure of money for the lease, purchase or other acquisition of any fixed or capital asset.
"Collateral" means all current or hereafter acquired or arising Equipment, General Intangibles, Inventory, Receivables, Investment Property, deposit accounts, letters of credit, proceeds of letters of credit, chattel paper and all sums on deposit in any Collateral Account, and any items in any Lockbox; together with (i) all substitutions and replacements for and products of any of the foregoing; (ii) proceeds of any and all of the foregoing; (iii) in the case of all tangible goods, all accessions; (iv) all accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed to or used in connection with any tangible goods; (v) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods; and (vi) the Life Insurance Policy.
"Collateral Account" means the "WFBCI Account" as defined in the Collection Account Agreement and the "Lender Account" as defined in the Lockbox Agreement.
"Collection Account Agreement" means the Collection Account Agreement of even date herewith by and among the Borrower, Wells Fargo Bank, National Association and the Lender.
"Commitment" means the Lender's commitment to make Advances to or for the Borrower's account pursuant to Article II.
"Credit Facility" means the credit facility being made available to the Borrower by the Lender pursuant to Article II.
"Deactivation Period" has the same meaning specified in Section 2.14.
"Debt" of any Person means, without duplication, all items of indebtedness or liability which in accordance with GAAP would be included in determining total liabilities as shown on the liabilities side of a balance sheet of that Person as at the date as of which Debt is to be determined. For purposes of determining a Person's aggregate Debt at any time, "Debt" shall also include the aggregate principal payments required to be made by such Person at any time under any lease that is considered a capitalized lease under GAAP.
"Default" means an event that, with giving of notice or passage of time or both, would constitute an Event of Default.
"Default Period" means any period of time beginning on the day a Default or Event of Default has occurred and ending on the date the Lender notifies the Borrower in writing that such Default or Event of Default has been waived.
"Default Rate" means an annual rate equal to three percent (3%) over the Floating Rate, which rate shall change when and as the Floating Rate changes.
"EBITDA" for a period means, the sum of (i) pretax earnings from continuing operations, (ii) interest expense and, (iii) depreciation, depletion, and amortization of tangible and intangible assets, before (a) special extraordinary gains, (b) minority interests, and (c) miscellaneous gains and losses, in each case for such period, computed and calculated in accordance with GAAP.
"Eligible Accounts" means all unpaid Accounts, net of any credits, except the following shall not in any event be deemed Eligible Accounts:
"Eligible Foreign Accounts" means Accounts due and owing by an Account debtor located outside the United States; but excluding any Accounts having the following characteristics:
"Environmental Laws" has the meaning specified in Section 5.12.
"Equipment" means all of the Borrower's equipment, as such term is defined in the UCC, whether now owned or hereafter acquired, including but not limited to all present and future machinery, vehicles, furniture, fixtures, manufacturing equipment, shop equipment, office and recordkeeping equipment, parts, tools, supplies, and including specifically (without limitation) the goods described in any equipment schedule or list herewith or hereafter furnished to the Lender by the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.
"Event of Default" has the meaning specified in Section 8.1.
"Floating Rate" means an annual rate equal to the sum of the Base Rate plus 0.375%, which annual rate shall change when and as the Base Rate changes.
"Funding Date" has the meaning specified in Section 2.1.
"GAAP" means generally accepted accounting principles, applied on a basis consistent with the accounting practices applied in the financial statements described in Section 5.5, except for any change in accounting practices to the extent that, due to a promulgation of the Financial Accounting Standards Board changing or implementing any new accounting standard, the Borrower either (i) is required to implement such change, or (ii) for future periods will be required to and for the current period may in accordance with generally accepted accounting principles implement such change, for its financial statements to be in conformity with generally accepted accounting principles (any such change is herein referred to as a "Required GAAP Change"), provided that (1) the Borrower shall fully disclose in such financial statements any such Required GAAP Change and the effects of the Required GAAP Change on the Borrower's income, retained earnings or other accounts, as applicable, and (2) the Borrower's financial covenants set forth in Sections 6.12, 6.13, 6.14 and 7.10 shall be adjusted as necessary to reflect the effects of such Required GAAP Change.
"General Intangibles" means all of the Borrower's general intangibles, as such term is defined in the UCC, whether now owned or hereafter acquired, including (without limitation) all present and future patents, patent applications, copyrights, trademarks, trade names, trade secrets, customer or supplier lists and contracts, manuals, operating instructions, permits, franchises, the right to use the Borrower's name, and the goodwill of the Borrower's business.
"Hazardous Substance" has the meaning specified in Section 5.12.
"Inventory" means all of the Borrower's inventory, as such term is defined in the UCC, whether now owned or hereafter acquired, whether consisting of whole goods, spare parts or components, supplies or materials, whether acquired, held or furnished for sale, for lease or under service contracts or for manufacture or processing, and wherever located.
"Investment Property" means all of the Borrower's investment property, as such term is defined in the UCC, whether now owned or hereafter acquired, including but not limited to all securities, security entitlements, securities accounts, commodity contracts, commodity accounts, stocks, bonds, mutual fund shares, money market shares and U.S. Government securities.
"Loan Documents" means this Agreement, the Note, any Subordination Agreement and the Security Documents.
"Lockbox" has the meaning given in the Lockbox Agreement.
"Lockbox Agreement" means the Lockbox and Collection Account Agreement by and among the Borrower, Wells Fargo Bank, National Association, Regulus West LLC and the Lender, of even date herewith.
"Maturity Date" has the meaning specified in Section 2.6.
"Maximum Line" means Five Million Dollars ($5,000,000), unless said amount is reduced pursuant to Section 2.7, in which event it means the amount to which said amount is reduced.
"Minimum Interest Charge" has the meaning specified in Section 2.2(b).
"Note" means the Revolving Note.
"Obligations" means the Note and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Lender under this Agreement and the other Loan Documents, whether such debt, liability or obligation now exists or is hereafter created or incurred, and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several.
"Patent and Trademark Security Agreement" means the Patent and Trademark Security Agreement by the Borrower in favor of the Lender of even date herewith.
"Permitted Lien" has the meaning specified in Section 7.1.
"Person" means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Plan" means an employee benefit plan or other plan maintained for the Borrower's employees and covered by Title IV of ERISA.
"Premises" means all premises where the Borrower conducts its business and has any rights of possession, including (without limitation) the premises legally described in Exhibit C attached hereto.
"Receivables" means each and every right of the Borrower to the payment of money, whether such right to payment now exists or hereafter arises, whether such right to payment arises out of a sale, lease or other disposition of goods or other property, out of a rendering of services, out of a loan, out of the overpayment of taxes or other liabilities, or otherwise arises under any contract or agreement, whether such right to payment is created, generated or earned by the Borrower or by some other person who subsequently transfers such person's interest to the Borrower, whether such right to payment is or is not already earned by performance, and howsoever such right to payment may be evidenced, together with all other rights and interests (including all liens and security interests) which the Borrower may at any time have by law or agreement against any account debtor or other obligor obligated to make any such payment or against any property of such account debtor or other obligor; all including but not limited to all present and future accounts, contract rights, loans and obligations receivable, chattel papers, bonds, notes and other debt instruments, tax refunds and rights to payment in the nature of general intangibles.
"Reportable Event" shall have the meaning assigned to that term in Title IV of ERISA.
"Revolving Advance" has the meaning specified in Section 2.1.
"Revolving Note" means the Borrower's revolving promissory note, payable to the order of the Lender in substantially the form of Exhibit A hereto, as the same may hereafter be amended, restated, supplemented otherwise modified from time to time, and any note or notes issued in substitution therefor, as the same may hereafter be amended, restated, supplemented otherwise modified from time to time.
"Security Documents" means this Agreement, the Collection Account Agreement, the Lockbox Agreement, the Patent and Trademark Security Agreement and any other document delivered to the Lender from time to time to secure the Obligations, as the same may hereafter be amended, restated, supplemented otherwise modified from time to time.
"Security Interest" has the meaning specified in Section 3.1.
"Subsidiary" means any corporation of which more than fifty percent (50%) of the outstanding shares of capital stock having general voting power under ordinary circumstances to elect a majority of the board of directors of such corporation, irrespective of whether or not at the time stock of any other class or classes shall have or might have voting power by reason of the happening of any contingency, is at the time directly or indirectly owned by the Borrower, by the Borrower and one or more other Subsidiaries, or by one or more other Subsidiaries.
"Termination Date" means the earliest of (i) the Maturity Date, (ii) the date the Borrower terminates the Credit Facility, or (iii) the date the Lender demands payment of the Obligations after an Event of Default pursuant to Section 8.2.
"UCC" means the Uniform Commercial Code as in effect from time to time in the state designated in Section 9.13 as the state whose laws shall govern this Agreement, or in any other state whose laws are held to govern this Agreement or any portion hereof.
"Year 2000 Compliant" has the meaning specified in Section 6.15.
Certificates of any Related Lender sent to the Borrower from time to time claiming compensation under this Section 2.5, stating the reason therefor and setting forth in reasonable detail the calculation of the additional amount or amounts to be paid to the Related Lender hereunder to restore its Return shall be conclusive absent manifest error. In determining such amounts, the Related Lender may use any reasonable averaging and attribution methods.
Name and address of Secured Party:
Wells Fargo Business Credit, Inc.
245 South Los Robles Avenue, Suite 600
Pasadena, California 91101
The Borrower represents and warrants to the Lender as follows:
So long as the Obligations shall remain unpaid, or the Credit Facility shall remain outstanding, the Borrower will comply with the following requirements, unless the Lender shall otherwise consent in writing:
Minimum Adjusted Net Worth |
|
January 2000 |
$25,000 |
February 2000 |
$25,000 |
March 2000 |
$26,000 |
April 2000 |
$24,000 |
May 2000 |
$21,000 |
June 2000 |
$21,000 |
July 2000 |
$19,000 |
August 2000 |
$19,000 |
September 2000 |
$19,000 |
October 2000 |
$19,000 |
November 2000 |
$20,000 |
December 2000 |
$20,000 |
January 2001 |
$20,000 |
February 2001 |
$20,000 |
March 2001 |
$22,000 |
April 2001 |
$22,000 |
May 2001 |
$19,000 |
June 2001 |
$19,000 |
July 2001 |
$17,000 |
August 2001 |
$17,000 |
September 2001 |
$17,000 |
October 2001 |
$17,000 |
November 2001 |
$18,000 |
December 2001 |
$18,000 |
Period |
Minimum EBITDA |
Six months ending March 31, 2000 |
$4,500 |
Three months ending June 30, 2000 |
$(6,200) |
Six months ending September 30, 2000 |
$(6,400) |
Nine months ending December 31, 2000 |
$(2,000) |
Fiscal year ending March 31, 2001 |
$2,100 |
Three months ending June 30, 2001 |
$(5,500) |
Six months ending September 30, 2001 |
$(5,700) |
Nine months ending December 31, 2001 |
$(1,300) |
So long as the Obligations shall remain unpaid, or the Credit Facility shall remain outstanding, the Borrower agrees that, without the Lender's prior written consent:
Notwithstanding the foregoing, upon the occurrence of an Event of Default described in subsections (d) or (e) of Section 8.1, the Obligations shall be immediately due and payable automatically without presentment, demand, protest or notice of any kind.
If to the Borrower:
Rockshox, Inc.
401 Charcot, Inc.
San Jose, California 95131
Telecopier: (408) 570-3590
Attention: Chris Birkett
If to the Lender:
Wells Fargo Business Credit, Inc.
245 South Los Robles Avenue, Suite 600
Pasadena, California 91101
Telecopier: (626) 844-9063
Attention: Account Executive
or, as to each party, at such other address or telecopier number as may hereafter be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section. All such notices, requests, demands and other communications shall be deemed to have been given on (a) the date received if personally delivered, (b) when deposited in the mail if delivered by mail, (c) the date sent if sent by overnight courier, or (d) the date of transmission if delivered by telecopy, except that notices or requests to the Lender pursuant to any of the provisions of Article II shall not be effective until received by the Lender.
If any investigative, judicial or administrative proceeding arising from any of the foregoing is brought against any Indemnitee, upon such Indemnitee's request, the Borrower, or counsel designated by the Borrower and satisfactory to the Indemnitee, will resist and defend such action, suit or proceeding to the extent and in the manner directed by the Indemnitee, at the Borrower's sole costs and expense. Each Indemnitee will use its best efforts to cooperate in the defense of any such action, suit or proceeding. If the foregoing undertaking to indemnify, defend and hold harmless may be held to be unenforceable because it violates any law or public policy, the Borrower shall nevertheless make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. The Borrower's obligation under this Section 9.7 shall survive the termination of this Agreement and the discharge of the Borrower's other obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.
WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation By Name: Its Vice President |
ROCKSHOX, INC., a Delaware corporation By Its |
Table of Exhibits and Schedules
Exhibit A |
Form of Revolving Note |
Exhibit B |
Compliance Certificate |
Exhibit C |
Premises |
Exhibit D |
Form of Officer's Certificate |
Exhibit E |
Borrower's Counsel's Opinion |
Schedule 5.1 |
Trade Names, Chief Executive Office, Principal Place of Business, and Locations of Collateral |
Schedule 5.4 |
Subsidiaries |
Schedule 7.1 |
Permitted Liens |
Schedule 7.2 |
Permitted Indebtedness and Guaranties |
Schedule 7.4 |
Investments |
Exhibit A to Credit and Security Agreement
REVOLVING NOTE
$5,000,000 San Jose, California
December 10, 1999
For value received, the undersigned, ROCKSHOX, INC., a Delaware corporation (the "Borrower"), hereby promises to pay on the Termination Date under the Credit Agreement (defined below), to the order of WELLS FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender"), at its main office in Pasadena, California, or at any other place designated at any time by the holder hereof, in lawful money of the United States of America and in immediately available funds, the principal sum of Five Million Dollars ($5,000,000) or, if less, the aggregate unpaid principal amount of all Revolving Advances made by the Lender to the Borrower under the Credit Agreement (defined below) together with interest on the principal amount hereunder remaining unpaid from time to time, computed on the basis of the actual number of days elapsed and a 360-day year, from the date hereof until this Note is fully paid at the rate from time to time in effect under the Credit and Security Agreement of even date herewith (as the same may hereafter be amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement") by and between the Lender and the Borrower. The principal hereof and interest accruing thereon shall be due and payable as provided in the Credit Agreement. This Note may be prepaid only in accordance with the Credit Agreement.
This Note is issued pursuant, and is subject, to the Credit Agreement, which provides, among other things, for acceleration hereof. This Note is the Revolving Note referred to in the Credit Agreement. This Note is secured, among other things, pursuant to the Credit Agreement and the Security Documents as therein defined, and may now or hereafter be secured by one or more other security agreements, mortgages, deeds of trust, assignments or other instruments or agreements.
The Borrower hereby agrees to pay all costs of collection, including reasonable attorneys' fees and legal expenses in the event this Note is not paid when due, whether or not legal proceedings are commenced.
Presentment or other demand for payment, notice of dishonor and protest are expressly waived.
ROCKSHOX, INC.,
a Delaware corporation
By
Its President
Exhibit B to Credit and Security Agreement
Compliance Certificate
To: |
Wells Fargo Business Credit, Inc. |
Date: |
_____________________ |
Subject: |
Financial Statements |
In accordance with our Credit and Security Agreement dated as of December 10, 1999 (the "Credit Agreement"), attached are the financial statements of ROCKSHOX, INC. (the "Borrower") as of and for ________________, _____ (the "Reporting Date") and the year-to-date period then ended (the "Current Financials"). All terms used in this certificate have the meanings given in the Credit Agreement.
I certify that the Current Financials have been prepared in accordance with GAAP, subject, in the case of quarterly or interim financial statements, to year-end audit adjustments and the absence of footnotes, and fairly present the Borrower's financial condition and the results of its operations as of the date thereof.
Events of Default. (Check one):
"
The undersigned does not have knowledge of the occurrence of a Default or Event of Default under the Credit Agreement."
The undersigned has knowledge of the occurrence of a Default or Event of Default under the Credit Agreement and attached hereto is a statement of the facts with respect to thereto.I hereby certify to the Lender as follows:
"
The Reporting Date does not mark the end of one of the Borrower's fiscal quarters, hence I am completing only paragraph __ below."
The Reporting Date marks the end of one of the Borrower's fiscal quarters, hence I am completing all paragraphs below except paragraph __."
The Reporting Date marks the end of the Borrower's fiscal year, hence I am completing all paragraphs below.Financial Covenants. I further hereby certify as follows:
1. Minimum Adjusted Net Worth. Pursuant to Section 6.12 of the Credit Agreement, as of the Reporting Date the Borrower's Adjusted Net Worth was $____________ which " satisfies " does not satisfy the requirements of Section 6.12.
2. Minimum EBITDA. Pursuant to Section 6.13 of the Credit Agreement, the Borrower's EBITDA for the ________ period ending on the Reporting Date, was $____________, which " satisfies " does not satisfy the requirements of Section 6.13.
3. Capital Expenditures. Pursuant to Section 7.10 of the Credit Agreement, for the year-to-date period ending on the Reporting Date, the Borrower has expended or contracted to expend during the _____________ year ended ______________, ___, for Capital Expenditures, $__________________ in the aggregate, which " satisfies " does not satisfy the requirements of Section 7.10.
4. Salaries. As of the Reporting Date, the Borrower " is " is not in compliance with Section 7.16 of the Credit Agreement concerning salaries.
Attached hereto are all relevant facts in reasonable detail to evidence, and the computations of the financial covenants referred to above. These computations were made in accordance with GAAP.
ROCKSHOX, INC.,
a Delaware corporation
By
[Name]
Its Chief Financial Officer
Exhibit C to Credit and Security Agreement
Premises
The Premises referred to in the Credit and Security Agreement are legally described as follows:
(See Attached)
Exhibit D to Credit Agreement
OFFICER'S CERTIFICATE
TO: Wells Fargo Business Credit, Inc.
245 South Los Robles Avenue, Suite 600
Pasadena, California 91101
To induce you to make one or more loans from time to time to Rockshox, Inc., a Delaware corporation (the "Borrower"), in accordance with the Credit and Security Agreement dated December 10, 1999 between it and you (the "Credit and Security Agreement") and all other Loan Documents (as defined in the Credit and Security Agreement), I hereby represent and warrant to you, in my capacity as _________________ of the Borrower, that each and every representation and warranty set forth in Article V of the Credit and Security Agreement is true and correct in all material respects as of the date hereof.
Dated: _____________
Very truly yours,
Exhibit E to Credit Agreement
FORM OF OPINION OF BORROWER'S COUNSEL
(See Attached)
Schedule 5.1 to Credit and Security Agreement
TRADE NAMES, CHIEF EXECUTIVE OFFICE, PRINCIPAL PLACE OF
BUSINESS, AND LOCATIONS OF COLLATERAL
(See Attached)
Schedule 5.4 to Credit and Security Agreement
Subsidiaries
Rockshox Taiwan (branch office - in process)
Schedule 7.1 to Credit and Security Agreement
Permitted Liens
[See attached]
Schedule 7.2 to Credit and Security Agreement
Permitted Indebtedness and Guaranties
NONE.
Schedule 7.4 to Credit and Security Agreement
INVESTMENTS
None.
Article I Definitions 1
Section 1.1 Definitions 1
Section 1.2 Cross References 9
Article II Amount and Terms of the Credit Facility 9
Section 2.1 Revolving Advances 9
Section 2.2 Interest; Minimum Interest Charge; Default Interest; Participations; Usury 10
Section 2.3 Fees 11
Section 2.4 Computation of Interest and Fees; When Interest Due and Payable 11
Section 2.5 Maturity Date 11
Section 2.6 Voluntary Prepayment; Reduction of the Maximum Line; Termination of the Credit Facility by the Borrower 12
Section 2.7 Termination and Line Reduction Fees; Waiver of Termination and Line Reduction Fees 12
Section 2.8 Mandatory Prepayment 12
Section 2.9 Payment 12
Section 2.10 Payment on Non-Banking Days 12
Section 2.11 Use of Proceeds 13
Section 2.12 Liability Records 13
Section 2.13 Deactivation of Credit Facility 13
Article III Security Interest; Occupancy; Setoff 13
Section 3.1 Grant of Security Interest 13
Section 3.2 Notification of Account Debtors and Other Obligors 13
Section 3.3 Assignment of Insurance 14
Section 3.4 Occupancy 14
Section 3.5 License 14
Section 3.6 Financing Statement 15
Section 3.7 Setoff 15
Article IV Conditions of Lending 15
Section 4.1 Conditions Precedent to the Initial Revolving Advance 15
Section 4.2 Conditions Precedent to All Advances 17
Article V Representations and Warranties 17
Section 5.1 Corporate Existence and Power; Name; Chief Executive Office; Inventory and Equipment Locations; Tax Identification Number 17
Section 5.2 Authorization of Borrowing; No Conflict as to Law or Agreements 18
Section 5.3 Legal Agreements 18
Section 5.4 Subsidiaries 18
Section 5.5 Financial Condition; No Adverse Change 18
Section 5.6 Litigation 19
Section 5.7 Regulation U 19
Section 5.8 Taxes 19
Section 5.9 Titles and Liens 19
Section 5.10 Plans 19
Section 5.11 Default 20
Section 5.12 Environmental Matters 20
Section 5.13 Submissions to Lender 21
Section 5.14 Financing Statements 21
Section 5.15 Rights to Payment 21
Article VI Borrower's Affirmative Covenants 21
Section 6.1 Reporting Requirements 21
Section 6.2 Books and Records; Inspection and Examination 23
Section 6.3 Account Verification 24
Section 6.4 Compliance with Laws 24
Section 6.5 Payment of Taxes and Other Claims 24
Section 6.6 Maintenance of Properties 24
Section 6.7 Insurance 25
Section 6.8 Preservation of Existence 25
Section 6.9 Delivery of Instruments, etc. 25
Section 6.10 Collateral Account 25
Section 6.11 Performance by the Lender 26
Section 6.12 Minimum Book Net Worth 26
Section 6.13 Minimum EBITDA 27
Section 6.14 New Covenants 27
Section 6.15 Year 2000 Compliance 27
Article VII Negative Covenants 28
Section 7.1 Liens 28
Section 7.2 Indebtedness 28
Section 7.3 Guaranties 29
Section 7.4 Investments and Subsidiaries 29
Section 7.5 Dividends 29
Section 7.6 Sale or Transfer of Assets; Suspension of Business Operations 29
Section 7.7 Consolidation and Merger; Asset Acquisitions 30
Section 7.8 Sale and Leaseback 30
Section 7.9 Restrictions on Nature of Business 30
Section 7.10 Capital Expenditures 30
Section 7.11 Accounting 30
Section 7.12 Discounts, etc. 30
Section 7.13 Defined Benefit Pension Plans 30
Section 7.14 Place of Business; Name 30
Section 7.15 Organizational Documents 31
Section 7.16 Salaries 31
Section 7.17 Change in Ownership 31
Article VIII Events of Default, Rights and Remedies 31
Section 8.1 Events of Default 31
Section 8.2 Rights and Remedies 33
Section 8.3 Certain Notices 33
Article IX Miscellaneous 34
Section 9.1 No Waiver; Cumulative Remedies 34
Section 9.2 Amendments, Etc. 34
Section 9.3 Addresses for Notices, Etc. 34
Section 9.4 Further Documents 35
Section 9.5 Collateral 35
Section 9.6 Costs and Expenses 35
Section 9.7 Indemnity 35
Section 9.8 Participants 36
Section 9.9 Execution in Counterparts 36
Section 9.10 Binding Effect; Assignment; Complete Agreement; Exchanging Information 36
Section 9.11 Severability of Provisions 37
Section 9.12 Headings 37
Section 9.13 Governing Law; Jurisdiction, Venue; Waiver of Jury Trial 37
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