EXHIBIT 10.84
LOAN AND SECURITY AGREEMENT
This Agreement is between the undersigned Borrower and Guarantor and the
undersigned Lender concerning a loan to be made by Lender to Borrower and
Guarantor.
SECTION 1. PARTIES
1.1 The "Borrower " is Ride, Inc., a Washington corporation.
1.2 The "Guarantor" is Ride Snowboard Company, a Washington corporation, Ride
Manufacturing, Inc., a California corporation, Carve, Inc., a Washington
corporation, Smiley Hats, Inc, a Nevada corporation and Ride Canada,
Inc., and Ontario corporation and their successors and assigns. All
references to Guarantor shall mean each of them, jointly and
severally, individually and collectively, and the successors and
assigns of each.
1.3 The "Lender" is Advantage Fund II Ltd.
SECTION 2. PROMISSORY NOTE; GUARANTIES
2.1 Borrower has issued a promissory note to Lender in the aggregate amount
of $ 1,725,000 (the "Promissory Note") in consideration of Lender
tendering to Borrower for cancellation 1,500 shares of Borrower's
Series B Cumulative Convertible Preferred Stock (the "Preferred
Stock"). Such Promissory Note is in the form attached hereto as
Exhibit A. Each of the other Guarantors has agreed to guaranty payment
of the Promissory Note pursuant to a Guaranty in the form attached
hereto as Exhibit B.
2.2 Term Loan. Intentionally omitted.
2.3 Accommodations. Intentionally omitted.
SECTION 3. INTEREST AND FEES. Intentionally omitted.
SECTION 4. GRANT OF SECURITY INTEREST
4.1 Grant of Security Interest. Subject to the Intercreditor and
Subordination Agreement dated as of even date herewith by and among
Lender, The CIT Group/Credit Finance, Inc. and U.S. Bank, to secure
the payment and performance in full of all Obligations (as defined
below), Borrower and Guarantor hereby grant to Lender a continuing
security interest in and lien upon, and a right of setoff against, and
Borrower and Guarantor hereby assign and pledge to Lender, all of the
Collateral (as defined below), including any Collateral not deemed
eligible for lending purposes.
4.2 "Obligations" shall mean any and all amounts owing on the Promissory
Note, including principal, interest, charges, fees and expenses,
however evidenced, whether arising under this Agreement or otherwise,
whether now existing or hereafter arising, whether arising before,
during or after the term of the Promissory Note or after the
commencement of any case with respect to Borrower and Guarantor under
the United States Bankruptcy Code or any similar
statute.
4.3 "Collateral" shall mean all of the following property of Borrower and
Guarantor:
(a) All now owned and hereafter acquired right, title and interest of
Borrower and Guarantor in, to and in respect of all: accounts,
interests in goods represented by accounts, returned, reclaimed
or repossessed goods with respect thereto and rights as an unpaid
vendor; contract rights; chattel paper; investment property;
general intangibles (including, but not limited to, tax and duty
refunds, registered and unregistered patents, trademarks, service
marks, copyrights, trade names, applications for the foregoing,
trade secrets, goodwill, processes, drawings, blueprints,
customer lists, licenses, whether as licenser or licensee, chases
in action and other claims, and existing and future leasehold
interests in equipment and fixtures); documents; instruments;
letters of credit, bankers' acceptances or guaranties; cash
moneys, deposits, securities, bank accounts, deposit accounts,
credits and other property now or hereafter held in any capacity
by any depository or other institution; agreements or property
securing or relating to any of the items referred to above;
(b) All now owned and hereafter acquired right, title and interest of
Borrower and Guarantor in, to and in respect of goods, including,
but not limited to: (i) all inventory, wherever located, whether
now owned or hereafter acquired, of whatever kind, nature or
description, including all raw materials, work-in-process,
finished goods, and materials to be used or consumed in Borrower
and Guarantor's business; and all names or marks affixed to or to
be affixed thereto for purposes of selling same by the seller,
manufacturer, lessor or licenser thereof; (ii) all equipment and
fixtures, wherever located, whether now owned or hereafter
acquired, including, without limitation, all machinery,
equipment, motor vehicles, furniture and fixtures, and any and
all additions, substitutions, replacements (including spare
parts), and accessions thereof and thereto; and (iii) all
consumer goods, farm products, crops, timber, minerals or the
like (including oil and gas), wherever located, whether now owned
or hereafter acquired, of whatever kind, nature or description;
(c) All now owned and hereafter acquired right, title and interests
of Borrower and Guarantor in, to and in respect of any personal
property in or upon which Borrower and Guarantor has or may
hereafter have a security interest, lien or right of setoff;
(d) All present and future books and records relating to any of the
above including, without limitation, all computer programs,
printed output and computer readable data in the possession or
control of the Borrower and Guarantor, any computer service
bureau or other third party; and
(e) All products and proceeds of the foregoing in whatever form and
wherever located, including, without limitation, all insurance
proceeds and all claims against third parties for loss or
destruction of or damage to any of the foregoing.
SECTION 5. COLLECTION AND ADMINISTRATION. Intentionally omitted.
SECTION 6. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
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Borrower and Guarantor hereby represent, warrant and covenant to
Lender the following, the truth and accuracy of which, and compliance with
which, shall be a condition to Lender exchanging the Preferred Stock for the
Promissory Note:
6.1 Financial and Other Reports.
(a) Borrower and Guarantor shall keep and maintain their books and
records in accordance with generally accepted accounting
principles, consistently applied. Annually, Borrower shall
deliver audited consolidated financial statements of Borrower
accompanied by the report and opinion thereon of independent
certified public accountants acceptable to Lender, as soon as
available, but in no event later than ninety (90) days after
the end of Borrower's fiscal year. Concurrent with the
delivery to Lender of such audited consolidated financials,
Borrower shall deliver to Lender internally prepared
consolidating financial statements (which shall be
consistent with the audited statements).
(b) Borrower shall deliver to Lender promptly upon Borrower's
filing thereof, copies of all reports to or other documents
filed by Borrower and Guarantor with the Securities and
Exchange Commission under the Securities Exchange Act of
1934 and the regulations promulgated thereunder, and all
reports, notices, or statements sent or received by Borrower
to or from the holders of any equity interests of Borrower
(other than routine non-material correspondence sent to
Borrower by shareholders of Borrower) or of any debt for
borrowed money of Borrower registered under the Securities
Act of 1933 or to or from the trustee under any indenture
under which the same is issued.
6.2 Trade Names. Borrower, Guarantor and Ride Canada may from time to time
render invoices under Borrower, Guarantor and Ride Canada's trade
names set forth in Section 10.5(g) and, Borrower and Guarantor
represents that: (a) each trade name does not refer to another
corporation or other legal entity, and (b) all accounts and proceeds
thereof (including any returned merchandise) invoiced under any such
trade names are owned exclusively by Borrower, Guarantor or Ride
Canada.
6.3 Losses. Borrower and Guarantor shall promptly notify Lender in writing of
any loss, damage, investigation, action, suit, proceeding or claim
relating to a material portion of the Collateral or which may result
in any material adverse change in Borrower, Guarantor's or Ride
Canada's business, assets, liabilities or condition, financial or
otherwise.
6.4 Books and Records. Borrower, Guarantor and Ride Canada's books and
records concerning accounts and the respective chief executive offices
of Borrower, Guarantor and Ride Canada are and shall be maintained
only at the address set forth in Section 10.5(d) and (e). Borrower,
Guarantor and Ride Canada's only other places of business and the only
other locations of Collateral, if any, are and shall be the addresses
set forth in Section 10.5(f) hereof, except Borrower, Guarantor or
Ride Canada may change such locations or open a new place of business
after thirty (30) days prior written notice to Lender. Borrower and
Guarantor shall execute and deliver or cause Ride Canada to execute
and deliver to Lender such financing statements, amendments, financing
documents and security and other agreements as Lender may reasonably
require.
6.5 Title. Borrower, Guarantor or Ride Canada has and at all times will
continue to have good and
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marketable title to all of the Collateral, free and clear of all liens,
security interests, claims or encumbrances of any kind except in favor of
Lender, Permitted Liens, and those, if any set forth on Schedule A
hereto. For purposes of this Section 6.5, the term "Permitted Liens"
means:
(a) Liens for taxes not delinquent or statutory liens for taxes in an
amount not to exceed $250,000 provided that the payment of such
taxes which are due and payable is being contested in good faith
and by appropriate proceedings diligently pursued and as to which
adequate financial reserves have been established on Borrower and
Guarantor's books and records and a stay of enforcement of any
such lien is in effect;
(b) Deposits under worker's compensation, unemployment insurance,
social security and other similar laws, or to secure the
performance of bids, tenders or contracts (other than for the
repayment of borrowed money) or to secure indemnity, performance
or other similar bonds for the performance of bids, tenders or
contracts (other than for the repayment of borrowed money) or to
secure statutory obligations (other than liens arising under the
Employee Retirement Income Security Act of 1974 and the
regulations promulgated thereunder or any environmental
protection statute) or surety or appeal bonds, or to secure
indemnity, performance or other similar bonds in the ordinary
course of business;
(c) Liens securing the claims or demands of materialmen, mechanics,
carriers, warehousemen, landlords and other like individuals or
entities, provided that if any such lien arises from the
nonpayment of such claims or demand when due, such claims or
demands do not exceed $50,000 in the aggregate; and
(d) Judgment and other similar liens arising in connection with court
proceedings to the extent the attachment or enforcement of such
liens would not result in an Event of Default hereunder.
6.6 Disposition of Assets. Intentionally omitted.
6.7 Insurance. Borrower and Guarantor shall at all times maintain, with
financially sound and reputable insurers, adequate insurance (including
without limitation, at the option of Lender, earthquake and flood
insurance) with respect to the Collateral and other assets. All such
insurance policies shall be in such form, substance, amounts and coverage
as may be satisfactory to Lender and shall provide for thirty (30) days'
prior written notice to Lender of cancellation or reduction of coverage.
Lender may obtain at Borrower and Guarantor's expense, any such insurance
should Borrower and Guarantor fail to do so and adjust or settle any
claim or other matter under or arising pursuant to such insurance or
to amend or cancel such insurance. Borrower and Guarantor shall
provide evidence of such insurance and a lender's loss payable
endorsement satisfactory to Lender. Borrower and Guarantor shall
deliver to Lender, in kind, all instruments representing proceeds of
insurance received by Borrower and Guarantor. Lender may apply any
insurance proceeds received at any time to the cost of repairs to or
replacement of any portion of the Collateral and/or, at Lender's
option, to payment of or as security for any of the Obligations in any
order or manner as Lender determines.
6.8 Compliance With Laws. Borrower and Guarantor are and at all times will
continue to be, and
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Borrower and Guarantor shall cause Ride Canada at all times to be, in
compliance with the requirements of all material laws, rules, regulations
and orders of any governmental authority relating to its business
(including laws, rules, regulations and orders relating to income,
withholding (including any applicable Canadian withholding laws), excise,
property and social security taxes, minimum wages, employee retirement
and welfare benefits, employee health and safety, or environmental
matters) and all material agreements or other instruments binding on
Borrower, Guarantor or Ride Canada or any of their property. Borrower
and Guarantor shall pay and discharge, and shall cause Ride Canada to
pay and discharge, all taxes, assessments and governmental charges
against Borrower, Guarantor, Ride Canada or any Collateral when due,
unless the same are being contested in good faith. Lender may
establish reserves for the amount contested and penalties which may
accrue thereon.
6.9 Accounts. Intentionally omitted.
6.10 Equipment. With respect to Borrower and Guarantor's equipment, Borrower
and Guarantor shall keep the equipment in good order and repair, and in
running and marketable condition, ordinary wear and tear excepted.
6.11 Financial Covenants. Intentionally omitted.
6.12 Affiliated Transactions. Intentionally omitted.
6.13 Fees and Expenses. Borrower and Guarantor shall pay, on Lender's demand,
all costs, expenses, filing fees and taxes payable in connection with the
preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of the Obligations, Lender's rights
in the Collateral, this Agreement and all other existing and future
agreements or documents contemplated herein or related hereto,
including any amendments, waivers, supplements or consents which may
hereafter be made or entered into in respect hereof, or in any way
involving claims or defense asserted by Lender or claims or defense
against Lender asserted by Borrower, Guarantor, or any third party
directly or indirectly arising out of or related to the relationship
between Borrower and Lender or Guarantor and Lender, including, but
not limited to the following, whether incurred before, during or after
the initial term of the Promissory Note or after the commencement of
any case with respect to Borrower or Guarantor under the United States
Bankruptcy Code or any similar statute: (a) all costs and expenses of
filing or recording (including Uniform Commercial Code financing
statement filing taxes and fees, documentary taxes, intangibles taxes
and mortgage recording taxes and fees, if applicable); (b) all title
insurance and other insurance premiums, appraisal fees, fees incurred
in connection with any environmental report, audit or survey and
search fees; (c) all fees as then in effect relating to the wire
transfer of loan proceeds and other funds and fees then in effect for
returned checks and credit reports; (d) intentionally omitted; and (e)
the costs, disbursements and fees of in-house and outside counsel to
Lender, including but not limited to such fees and disbursements
incurred as a result of a workout, restructuring, reorganization,
liquidation, insolvency proceeding or litigation between the parties
hereto, any third party and in any appeals arising therefrom.
6.14 Further Assurances. At the request of Lender, at any time and from time
to time, at Borrower and Guarantor's sole expense, Borrower and
Guarantor shall execute and deliver or cause Ride Canada or any other
party to execute and deliver to Lender, such agreements, documents and
instruments, including waivers, consents and subordination agreements
from mortgagees or
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other holders of security interests or liens, landlords or bailees,
and do or cause to be done such further acts as Lender, in its
discretion, deems necessary or desirable to create, preserve, perfect
or validate any security interest of Lender in the Collateral and
otherwise to effectuate the provisions and purposes of this Agreement.
Borrower and Guarantor hereby authorize Lender to file financing
statements or amendments against Borrower and Guarantor in favor of
Lender with respect to the Collateral, without Borrower and
Guarantor's signature and to file as financing statements any carbon,
photographic or other reproductions of this Agreement or any financing
statements signed by Borrower and Guarantor.
6.15 Environmental Condition. None of Borrower and Guarantor's properties or
assets has ever been designated or identified in any manner pursuant to
any environmental protection statute as a hazardous waste or hazardous
substance disposal site, or a candidate for closure pursuant to any
environmental protection statute. No lien arising under any
environmental protection statute has attached to any revenues or to any
real or personal property owned by Borrower or Guarantor. Neither
Borrower nor Guarantor has received a summons, citation, notice, or
directive from the Environmental Protection Agency or any other federal
or state governmental agency with respect to any action or omission by
Borrower or Guarantor resulting in the releasing, or otherwise exposing
of hazardous waste or hazardous substances into the environment.
Borrower and Guarantor are and will continue to be in compliance (in
all material respects) with all statutes, regulations, ordinances and
other legal requirements pertaining to the production, storage,
handling, treatment, release, transportation or disposal of any
hazardous waste or hazardous substance.
6.16 Year 2000 Compliance. The Borrower and Guarantor shall take all action
necessary to assure that its and Ride Canada's computer-based systems
are able to effectively process data including dates and date sensitive
functions. The Borrower and Guarantor represent and warrant that the
Year 2000 problem, as it relates to its and Ride Canada's computer
based systems will not result in a material adverse effect on the
Borrower, Guarantor or Ride Canada's business condition. Upon request,
the Borrower and Guarantor shall provide assurance acceptable to the
Lender that the Borrower, Guarantor and Ride Canada's computer systems
and software are or will be Year 2000 compliant on a timely basis. The
Borrower and Guarantor shall immediately advise Lender in writing of
any material changes in the Borrower, Guarantor or Ride Canada's Year
2000 plan, timetable or budget.
6.17 State of Incorporation. If Borrower and Guarantor is a corporation, it
is duly organized, existing and in good standing under the laws of the
state set forth in Section 10.5(h).
6.18 New Capital. Borrower and Guarantor shall use the capital obtained from
any sale of stock or other equity to pay any Obligations owing to the
Lender. Borrower covenants not to issue any stock or equity without
providing Lender with three days prior written notice.
SECTION 7. EVENTS OF DEFAULT AND REMEDIES
7.1 Events of Default. All Obligations shall be immediately due and payable,
without notice or demand, upon or at any time after the occurrence or
existence of any one or more of the following "EVENTS OF DEFAULT":
(a) Borrower and Guarantor fails to pay when due any of the
Obligations;
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(b) Any representation, warranty or statement of fact made by
Borrower and Guarantor to Lender in this Agreement or any other
agreement, schedule, confirmatory assignment or otherwise, or to
any affiliate of Lender, shall prove inaccurate or misleading;
(c) Guarantor revokes, terminates or fails to perform any of the
terms of the Guaranty;
(d) Borrower or Guarantor dies or ceases to exist or the usual
business of Borrower or Guarantor ceases or is suspended;
(g) Borrower or Guarantor becomes insolvent, makes an assignment for
the benefit of creditors, makes or sends notice of a bulk
transfer or calls a general meeting of its creditors or principal
creditors;
(h) Any petition or application for any relief under the bankruptcy
laws of the United States now or hereafter in effect or under any
insolvency, reorganization, receivership, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction now
or hereafter in effect (whether at law or in equity) is filed by
or against Borrower or Guarantor;
(i) The indictment or threatened indictment of Borrower or Guarantor
under any criminal statute, or commencement or threatened
commencement of criminal or civil proceedings against Borrower or
Guarantor, pursuant to which statute or proceedings the penalties
or remedies sought or available include forfeiture of any of the
property of Borrower or Guarantor which Lender believes may have
a material adverse effect on the Collateral or Borrower and
Guarantor's business;
7.2 Remedies. Upon the occurrence of an Event of Default and at any time
thereafter, and subject to the rights of other creditors pursuant to
the Subordination Agreement, Lender shall have all rights and remedies
provided in this Agreement, any other agreements between Borrower,
Guarantor and Lender, the Uniform Commercial Code and other applicable
law, all of which rights and remedies may be exercised without notice
to Borrower or Guarantor, all such notices being hereby waived, except
such notice as is expressly provided for hereunder or is not waiveable
under applicable law. All rights and remedies of Lender are cumulative
and not exclusive and are enforceable, in Lender's discretion,
alternatively, successively, or concurrently on any one or more
occasions and in any order Lender may determine. Without limiting the
foregoing, and subject to the rights of other creditors pursuant to
the Subordination Agreement, Lender may (a) accelerate the payment of
all obligations and demand immediate payment thereof to Lender, (b)
with or without judicial process or the aid or assistance of others,
enter upon any premises on or in which any of the Collateral may be
located and take possession of the Collateral or complete processing,
manufacturing and repair of all or any portion of the Collateral, (c)
require Borrower and Guarantor, at Borrower and Guarantor's expense,
to assemble and make available to Lender any part or all of the
Collateral at any place and time designated by Lender, (d) collect,
foreclose, receive, appropriate, setoff and realize upon any and all
Collateral, (e) sell, lease, transfer, assign, deliver or otherwise
dispose of any and all Collateral (including, without limitation,
entering into contracts with respect thereto, by public or private
sales at any exchange, broker's board, any office of Lender or
elsewhere) at such prices or terms as Lender may deem reasonable, for
cash, upon credit or for future delivery, with the Lender having the
right to purchase the whole or any part of the Collateral at any such
public sale, all of the foregoing being free from any right or equity
of redemption of
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Borrower and Guarantor, which right or equity of redemption is hereby
expressly waived and released by Borrower and Guarantor. If any of the
Collateral is sold or leased by Lender upon credit terms or for future
delivery, the Obligations shall not be reduced as a result thereof
until payment therefor is finally collected by Lender. If notice of
disposition of Collateral is required by law, ten (10) days prior
notice by Lender to Borrower and Guarantor designating the time and
place of any public sale or the time after which any private sale or
other intended disposition of Collateral is to be made, shall be
deemed to be reasonable notice thereof and Borrower and Guarantor
waive any other notice. In the event Lender institutes an action to
recover any Collateral or seeks recovery of any Collateral by way of
prejudgment remedy, Borrower and Guarantor waive the posting of any
bond which might otherwise be required.
7.3 Application of Proceeds. Lender may apply the cash proceeds of
Collateral other than accounts actually received by Lender from any
sale, lease, foreclosure or other disposition of the Collateral to
payment of any of the Obligations, in whole or in part and in such
order as Lender may elect, whether or not then due. Borrower and
Guarantor shall remain liable to Lender for the payment of any
deficiency together with interest at the highest rate provided for
herein and all costs and expenses of collection or enforcement,
including reasonable attorneys' fees and legal expenses.
7.4 Lender's Cure of Third Party Agreement Default. Lender may, at its
option, cure any default by Borrower and Guarantor under any agreement
with a third party or pay or bond on appeal any judgment entered
against Borrower and Guarantor, discharge taxes, liens, security
interests or other encumbrances at any time levied on or existing with
respect to the Collateral and pay any amount, incur any expense or
perform any act which, in Lender's sole judgment, is necessary or
appropriate to preserve, protect, insure, maintain, or realize upon the
Collateral. Lender may charge Borrower and Guarantor's loan account for
any amounts so expended, such amounts to be repayable by Borrower and
Guarantor on demand. Lender shall be under no obligation to effect such
cure, payment, bonding or discharge, and shall not, by doing so, be
deemed to have assumed any obligation or liability of Borrower and
Guarantor.
SECTION 8. JURY TRIAL WAIVER; CERTAIN OTHER WAIVERS AND CONSENTS
8.1 JURY TRIAL WAIVER. BORROWER, GUARANTOR AND LENDER EACH WAIVE ALL RIGHTS
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INSTITUTED BY EITHER OF
THEM AGAINST THE OTHER WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT, THE OBLIGATIONS, THE COLLATERAL, ANY ALLEGED TORTIOUS
CONDUCT BY BORROWER, GUARANTOR OR LENDER, OR, IN ANY WAY, DIRECTLY OR
INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN
BORROWER, GUARANTOR AND LENDER. IN NO EVENT WILL LENDER BE LIABLE FOR
LOST PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES.
8.2 Counterclaims. Borrower and Guarantor waive all rights to interpose any
claims, deductions, setoffs or counterclaims of any kind, nature or
description in any action or proceeding instituted by Lender with
respect to this Agreement, the Obligations, the Collateral or any
matter arising therefrom or relating thereto, except compulsory
counterclaims.
8.3 Jurisdiction. Borrower and Guarantor hereby irrevocably submit and
consent to the nonexclusive jurisdiction of the State and Federal
Courts located in the State of Washington and
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any other State where any Collateral is located with respect to any
action or proceeding arising out of this Agreement, the Obligations,
the Collateral or any matter arising therefrom or relating thereto. In
any such action or proceeding, Borrower and Guarantor waive personal
service of the summons and complaint or other process and papers
therein and agrees that the service thereof may be made by mail
directed to Borrower and Guarantor at its chief executive office set
forth herein or other address thereof of which Lender has received
notice as provided herein, service to be deemed complete five (5) days
after mailing, or as permitted under the rules of either of said
Courts. Any such action or proceeding commenced by Borrower and
Guarantor against Lender will be litigated only in a Federal Court
located in the district, or a State Court in the State and County, in
which the office of Lender designated in Section 10.5(a) is located
and Borrower and Guarantor waive any objection based on FORUM NON
CONVENIENS and any objection to veque in connection therewith.
8.4 No Waiver by Lender. Lender shall not, by any act, delay, omission or
otherwise be deemed to have expressly or impliedly waived any of its
rights or remedies unless such waiver shall be in writing and signed by
an authorized officer of Lender. A waiver by Lender of any right or
remedy on any one occasion shall not be construed as a bar to or waiver
of any such right or remedy which Lender would otherwise have on any
future occasion, whether similar in kind or otherwise.
SECTION 9. TERM OF AGREEMENT; MISCELLANEOUS
9.1 Term. This Agreement shall only become effective upon execution and
delivery by Borrower, Guarantor and Lender and shall continue in full
force and effect until all Obligations due under the Promissory Note
are paid in full.
9.2 Early Termination. Intentionally omitted.
9.3 Termination Indemnity Deposit. Intentionally omitted.
9.4 Notices. Except as otherwise provided, all notices, requests and
demands hereunder shall be (a) made to Lender at its address set forth
in Section 10.5(a) and to Borrower and Guarantor at its chief executive
office set forth in Section 10.5(d), or to such other address as either
party may designate by written notice to the other in accordance with
this provision, and (b) deemed to have been given or made: if by hand,
immediately upon delivery; if by telex, telegram or telecopy (fax),
immediately upon receipt; if by overnight delivery service, one day
after dispatch; and if by first class or certified mail, three (3) days
after mailing.
9.5 Severability. If any provision of this Agreement is held to be invalid
or unenforceable, such provision shall not affect this Agreement as a
whole, but this Agreement shall be construed as though it did not
contain the particular provision held to be invalid or unenforceable.
9.6 Entire Agreement; Amendments; Assignments. This Agreement contains the
entire agreement of the parties as to the subject matter hereof, all
prior commitments, proposals and negotiations concerning the subject
matter hereof being merged herein. Neither this Agreement nor any
provision hereof shall be amended, modified or discharged orally or by
course of conduct, but only by a written agreement signed by an
authorized officer of Lender. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and assigns, except that any obligation of Lender under this
Agreement shall not be
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assignable nor inure to the successors and assigns of Borrower and
Guarantor.
9.7 Discharge of Borrower and Guarantor. No termination of this Agreement
shall relieve or discharge Borrower and Guarantor of its Obligations,
grants of Collateral, duties and covenants hereunder or otherwise until
such time as all Obligations to Lender have been indefeasibly paid and
satisfied in full, including, without limitation, the continuation and
survival in full force and effect of all security interests and liens
of Lender in and upon all then existing and thereafter-arising or
acquired Collateral and all warranties and waivers of Borrower and
Guarantor.
9.8 Usage. All terms used herein which are defined in the Uniform
Commercial Code shall have the meanings given therein unless otherwise
defined in this Agreement and all references to the singular or plural
herein shall also mean the plural or singular, respectively.
9.9 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington.
SECTION 10. ADDITIONAL DEFINITIONS AND TERMS
10.1 Intentionally omitted.
10.2 Term Loan. Intentionally Omitted
10.3 Interest, Fees & Charges. Intentionally omitted.
10.4 Financial Covenants. Intentionally omitted.
10.5 (a) Lender's Office: c/o Genesee International, Inc.
10500 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
(b) Lender's Bank: Intentionally omitted
(c) Borrower and Guarantor:Ride, Inc.
Ride Snowboard Company
Ride Manufacturing, Inc.
Smiley Hats, Inc.
Carve, Inc.
Ride Canada, Inc.
(d) Borrower and Guarantors Chief Executive Office:
0000-000xx Xxxxxx Xxxxxxx, Xxxxxxxxxx 00000
(e) Locations of Eligible Inventory Collateral:
Smiley Hats, Inc.
000 Xxxxxxxx
Xxxxxx, XX 89
Ride Manufacturing, Inc.
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000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Ride Manufacturing, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 91
Ride Canada,
000 Xxxxxxxxxxx, Xxxxx #0
Xxxxxxxxx, XX
X0X 0X0
(f) Borrower and Guarantor's Other Offices and Location of
Collateral:
WMI - Kamloop
B.C., Canada
Expeditors - Brussels, Belgium
(g) Borrower and Guarantor's Trade Names for Invoicing:
Ride Sports;
Ride Snowboards;
Smiley Hats;
Ride Canada
(h) Borrower and Guarantors' State of Incorporation:
Ride Snowboards, Washington
Ride Manufacturing, California
Smiley Hats, Nevada
Carve, Inc. Xxxxxxxxxx
Xxxx Xxxxxx, Xxx., Xxxxxxx, Xxxxxx
(i) Judgment Amount Intentionally omitted
10.6 Term: Intentionally omitted.
11
IN WITNESS WHEREOF, Borrower, Guarantor and Lender have duly executed
this Agreement this ___day of February, 1999.
LENDER: BORROWER:
ADVANTAGE FUND II LTD. RIDE, INC.
By: By:
Title: Title:
GUARANTORS:
RIDE MANUFACTURING, INC.
By:
Title:
RIDE SNOWBOARD COMPANY
By :
Title:
SMILEY HATS, INC.
By:
Title:
RIDE CANADA, INC.
By:
CARVE, INC.
By:
Title:
12
SCHEDULE A
PERMITTED LIENS
The security and other interests reflected in each of the following
financing statements shall constitute Permitted Liens:
1. UCC-1 Financing Statement No. 00-000-0000 filed by Textron
Financial Corporation on December 11, 1995 with the Washington
State Department of Licensing;
2. UCC-1 Financing Statement No. 00-000-0000 filed by Key Corp
Leasing, a Division of Key Corporate Capital Inc. on April 20,
1998 with the Washington State Department of Licensing;
3. UCC-1 Financing Statement No. 00-000-0000 filed by Key Corp
Leasing, a Division of Key Corporate Capital Inc. on April 20,
1998 with the Washington State Department of Licensing;
4. UCC-1 Financing Statement No. 00-000-0000 filed by Key Corp
Leasing, a Division of Key Corporate Capital Inc. on April 20,
1998 with the Washington State Department of Licensing;
5. UCC-1 Financing Statement No. 00-000-0000 filed by Key Corp
Leasing, a Division of Key Corporate Capital Inc. on April 23,
1998 with the Washington State Department of Licensing;
6. UCC-1 Financing Statement No. 00-000-0000 filed by Key Corp
Leasing, a Division of Key Corporate Capital Inc. on July 10,
1998 with the Washington State Department of Licensing;
7. UCC-1 Financing Statement No. 00-000-0000 filed by U.S. Bank,
N.A., on July 1, 1998 with the Washington State Department
of Licensing;
8. UCC-1 Financing Statement No. 00-000-0000 filed by U.S. Bank, on
September 15, 1997 with the Washington State Department of
Licensing;
9. UCC-1 Financing Statement No. 00-000-0000 filed by U.S. Bank, on
July 11, 1997 with the Washington State Department of Licensing;
10. UCC-1 Financing Statement No. 00-000-0000 filed by U.S. Bank
of Washington N.A., on May 18, 1994 with the Washington State
Department of Licensing;
11. UCC-1 Financing Statement No. 00-000-0000 filed by U.S. Bank
of Washington N.A., on July 8, 1996 with the Washington State
Department of Licensing;
12. UCC-1 Financing Statement No. 9716048 filed by U.S. Bank, on
September 22, 1997 with the Nevada Secretary of State.
13. UCC-1 Financing Statement No. 00-000-0000 filed by The CIT
Group/Credit Finance,
13
Inc. on August 12, 1998 with the Washington State Department of
Licensing;
14. UCC-1 Financing Statement No. 00-000-0000 filed by The CIT
Group/Credit Finance on August 12, 1998 with the Washington
State Department of Licensing;
15. UCC-1 Financing Statement No. 00-000-0000 filed by The CIT
Group/Credit Finance on August 12, 1998 with the Washington
State Department of Licensing;
16. UCC-1 Financing Statement No. 00-000-0000 filed by The CIT
Group/Credit Finance, Inc. on August 12, 1998 with the
Washington State Department of Licensing;
17. UCC-1 Financing Statement No. 00-000-0000 filed by The CIT
Group/Credit Finance, Inc. on August 12, 1998 with the
Washington State Department of Licensing;
18. UCC-1 Financing Statement No. 9812925 filed by The CIT
Group/Credit Finance, Inc., on August 12, 1998 with the Nevada
Secretary of State.
19. UCC-1 Financing Statement No. 9812926 filed by The CIT
Group/Credit Finance, Inc., on August 12, 1998 with the Nevada
Secretary of State.
20. UCC-1 Financing Statement No. 9812928 filed by The CIT
Group/Credit Finance, Inc., on August 12, 1998 with the Nevada
Secretary of State.
21. UCC-1 Financing Statement No. 9812929 filed by The CIT
Group/Credit Finance, Inc., on August 12, 1998 with the Nevada
Secretary of State.
22. UCC-1 Financing Statement No. 9822360913 filed by The CIT
Group/Credit Finance, Inc., on August 11, 1998 with the
California Secretary of State.
23. UCC-1 Financing Statement No. 9822360932 filed by The CIT
Group/Credit Finance, Inc., on August 11, 1998 with the
California Secretary of State.
24. UCC-1 Financing Statement No. 9822361063 filed by The CIT
Group/Credit Finance, Inc., on August 11, 1998 with the
California Secretary of State.
25. UCC-1 Financing Statement No. 9719860591 filed by U.S. Bank
on July 14, 1997 with the California Secretary of State.
26. UCC-1 Financing Statement No. 00-000-0000 filed by Hongkong
Bank of Canada on February 1, 1995 with the Washington Secretary
of State.
27. UCC-1 Financing Statement No. 96-19760019 filed by U.S. Bank
on July 10, 1996 with the California Secretary of State.
14
