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EXHIBIT 10.80
LOAN AND SECURITY AGREEMENT
This Agreement is between the undersigned Borrower and the
undersigned Lender concerning loans and other credit accommodations to be made
by Lender to Borrower.
SECTION 1. PARTIES
1.1 The "Borrower" is the person, firm, corporation or other entity
identified in Section 10.5(C) and its successors and assigns. If
more than one Borrower is specified in Section 10.5(C), all
references to Borrower shall mean each of them, jointly and
severally, individually and collectively, and the successors and
assigns of each.
1.2 The "Lender" is THE CIT GROUP/CREDIT FINANCE, INC. and its agents,
designees, representatives, successors and assigns.
SECTION 2. LOANS AND OTHER CREDIT ACCOMMODATIONS
2.1 Revolving Loans. Lender shall, subject to the terms and conditions
contained herein, make revolving loans to Borrower ("Revolving
Loans") in amounts requested by Borrower from time to time, but not
in excess of the Net Availability existing immediately prior to the
making of the requested Revolving Loan and provided the requested
Revolving Loan would not cause the outstanding Obligations to exceed
the Maximum Credit.
(a) The "Maximum Credit" is set forth in Section
10.1(A).
(b) The "Gross Availability" is at any time (i) the
product of the outstanding amount of Eligible Accounts, multiplied by the
Eligible Accounts Percentage set forth in Section 10.1(B), plus: (ii) the
product obtained by multiplying the Eligible Inventory Percentage set forth in
Section 10.1(B) by the values (as determined by Lender based on the lower of
cost or market) of Eligible Inventory, but the amount so added shall not exceed
any sublimits set forth in Section 10.1(C).
(c) The "Net Availability" shall be calculated at any
time as an amount equal to the Gross Availability minus the aggregate amount of
all then-outstanding Obligations to Lender.
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(d) "Eligible Accounts" are accounts created by Borrower
or Ride Canada, Inc. ("Ride Canada") in the ordinary course of the respective
businesses of such entities which are and remain acceptable to Lender for
lending purposes. General criteria for Eligible Accounts are set forth below but
may be revised from time to time by Lender, in its reasonable credit judgment,
on fifteen (15) days' prior written notice to Borrower. Lender shall, in
general, deem and continue to deem accounts to be Eligible Accounts if: (1) such
accounts arise from bona fide completed transactions and have not remained
unpaid for more than the number of days after the invoice date set forth in
Section 10.1(D); (2) the amounts of the accounts reported to Lender are
absolutely owing to Borrower or Ride Canada and payment is not conditional or
contingent, (such as consignments, guaranteed sales or right of return or other
similar terms); (3) the account debtor's chief executive office or principal
place of business is located in the United States or, only in the case of
accounts owing to Ride Canada, Canada; (4) such accounts do not arise from
progress xxxxxxxx, retainages or xxxx and hold sales; (5) there are no contra
relationships, setoffs, counterclaims or disputes existing with respect thereto
and there are no other facts existing or threatened which would impair or delay
the collectibility of all or any portion thereof; (6) the goods giving rise
thereto were not at the time of the sale subject to any liens except those
permitted in this Agreement; (7) such accounts are not accounts with respect to
which the account debtor or any officer or employee thereof is an officer,
employee or agent of or is affiliated with Borrower, directly or indirectly,
whether by virtue of family membership, ownership, control, management or
otherwise, provided that this clause (7) shall not render ineligible accounts
owing to Borrower by Global Sports or Xxxxx Snowboards based upon Xxxxx Xxxxxx'x
being an officer of such account debtors; (8) there has been compliance with the
Assignment of Claims Act or similar State or local law, if applicable, if the
account debtor is the United States or any domestic governmental unit; (9)
Borrower has delivered to Lender such documents as Lender may have requested
pursuant to Section 5.9 hereof in connection with such accounts and Lender shall
have received verifications of such accounts, satisfactory to it, if sent to the
account debtors or any other obligors or any bailees pursuant to Section 5.5
hereof; (10) there are no facts known by Borrower, Ride Canada or Lender
existing or threatened which might result in any adverse change in the account
debtor's financial condition; (11) accounts owed by an account debtor and its
affiliates do not represent more than twenty percent (20%) of all otherwise
Eligible Accounts (the amount exceeding twenty percent (20%) shall not be
eligible); (12) not more than fifty percent (50%) of the accounts of an account
debtor or its affiliates owed to Borrower or Ride Canada are more than the
number of days set forth in Section 10.1(D); (13) such accounts are owed by
account debtors whose total indebtedness to Borrower or Ride Canada does not
exceed the amount of any customer credit limits as established from time to time
on notice to Borrower or Ride Canada (the amount exceeding the credit limit
shall not be eligible); and (14) such accounts are owed by account debtors
deemed creditworthy at all times by Lender.
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(e) "Eligible Inventory" is finished goods inventory for
the current or subsequent model year owned by Borrower or Ride Canada which is
and remains acceptable to Lender for lending purposes and is located at one of
the addresses set forth in Section 10.5(E). "In-transit" inventory may also
qualify as Eligible Inventory if it satisfies the foregoing requirements and, in
addition, is subject to transit and delivery terms acceptable to Lender,
including without limitation, such matters as insurance, purchase orders and
title documents, and shipping delivery dates and locations.
(f) Lender shall have a continuing right to reduce the
Gross Availability by implementing Reserves ("Reserves"), and to increase and
decrease such Reserves from time to time, if and to the extent that, in Lender's
sole judgment, such Reserves are necessary to protect Lender against any state
of facts which does, or would, with notice or passage of time or both,
constitute an Event of Default or have an adverse effect on any Collateral.
Without limiting the generality of the foregoing, if Lender provides Borrower
with accommodations consisting of letters of credit, Lender will reduce Gross
Availability as follows:
(i) for commercial letters of credit for the
purchase of Eligible Inventory, Gross Availability will be reduced by an
amount equal to the product of (A) 45% and (B) the cost of such Eligible
Inventory, plus duty and freight; and
(ii) for standby letters of credit, Gross
Availability will be reduced by an amount equal to 100% of the face
amount of each such letter of credit.
(g) If a voluntary or involuntary petition under the Bankruptcy
Code is filed against the Borrower, then Lender need not make Revolving Loans.
(h) Revolving Loans will not at any time exceed the Gross
Availability (as it may be reduced by any applicable reserve) unless Lender has
consented.
2.2 Term Loan. Intentionally Deleted.
2.3 Accommodations.
(a) Subject to the terms and conditions contained herein, Lender
may in its sole discretion, issue or cause to be issued, from time to time at
Borrower's request and on terms and conditions and for purposes satisfactory to
Lender, credit accommodations consisting of letters of credit, bankers'
acceptances, merchandise purchase guaranties or other guaranties or indemnities
for Borrower's account ("Accommodations"). Borrower shall
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execute and perform additional agreements relating to the Accommodations in form
and substance acceptable to Lender and the issuer of any Accommodations, all of
which shall supplement the rights and remedies granted herein. Any payments made
by Lender or any affiliate of Lender in connection with the Accommodations shall
constitute additional Revolving Loans to Borrower.
(b) In addition to the fees and costs of any issuer in
connection with issuing or administering Accommodations, Borrower shall pay
monthly to Lender, on the first day of each month, a charge on the face amount
of all outstanding Accommodations computed daily from the date of issuance until
termination or payment, at the rate set forth in Section 10.3A(A) (the
"Accommodation Charges").
(c) No Accommodation will be issued unless the full amount of
the Accommodation requested plus fees and costs for issuance, is less than the
Net Availability existing immediately prior to the issuance of the requested
Accommodations, or if the requested Accommodation would cause the sum of the
outstanding Obligations to exceed the Maximum Credit, or cause the sum of the
open amount of Accommodations to exceed, at any time, the Accommodation sublimit
set forth in Section 10.3A(B).
(d) All indebtedness, liabilities and obligations of any sort
whatsoever, however arising, whether present or future, fixed or contingent,
secured or unsecured, due or to become due, paid or incurred, arising or
incurred in connection with any Accommodation shall be included in the term
"Obligations", as defined herein, and shall include, without limitation, (i) all
amounts due or which may become due under any Accommodation, (ii) all amounts
charged or chargeable to Borrower or to Lender by any bank, other financial
institution or correspondent bank which opens, issues or is involved with such
Accommodations; (iii) Lender's Accommodation Charges and all fees, costs and
other charges of any issuer of any Accommodation; and (iv) all duties, freight,
taxes, costs, insurance and all such other charges and expenses which may
pertain directly or indirectly to any Obligations or Accommodations or to the
goods or documents relating thereto.
(e) Borrower unconditionally agrees to indemnify and hold Lender
harmless from any and all loss, claim or liability (including reasonable
attorneys' fees) arising from any transactions or occurrences to any
Accommodation established or opened for Borrower's account, the Collateral
relating thereto and any drafts or acceptance thereunder, including any such
loss or claim due to any action taken by an issuer of any Accommodation.
Borrower further agrees to indemnify and hold Lender harmless for any errors or
omissions in connection with the Accommodations, whether caused by Lender, by
the issuer of any Accommodation or otherwise. Borrower's unconditional
obligation to indemnify and hold
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Lender harmless under this provision shall not be modified or diminished for any
reason or in any manner whatsoever, except for Lender's wilful misconduct.
Borrower agrees that any charges made to Lender by any issuer of any
Accommodation shall be conclusive on Borrower and may be charged to Borrower's
account.
(f) Lender shall not be responsible for: the conformity of any
goods to the documents presented; the validity or genuineness of any documents;
delay, default, or fraud by Borrower or shipper and/or anyone else in connection
with the Accommodations or any underlying transaction.
(g) Borrower agrees that any action taken by Lender, if taken in
good faith, or any action taken by an issuer of any Accommodation, under or in
connection with any Accommodation, shall be binding on Borrower and shall not
create any resulting liability to Lender. In furtherance thereof Lender shall,
upon an Event of Default or if Lender is directly collecting the accounts
pursuant to Section 5.5, have the full right and authority to clear and resolve
any questions of non-compliance of documents; to give any instructions as to
acceptance or rejection of any documents or goods; to execute for Borrower's
account any and all applications for steamship or airway guarantees, indemnities
or delivery orders; to grant any extensions of the maturity of, time of payment
for, or time of presentation of, any drafts, acceptances, or documents; and to
agree to any amendments, renewals, extensions, modifications, changes or
cancellations of any of the terms or conditions of any of the applications or
Accommodations. All of the foregoing actions may be taken in Lender's sole name,
and the issuer thereof shall be entitled to comply with and honor any and all
such documents or instruments executed by or received solely from Lender, all
without notice to or any consent from Borrower. None of the foregoing actions
described in this subsection (g) may be taken by Borrower without Lender's
express written consent.
SECTION 3. INTEREST AND FEES
3.1 Interest.
(a) Interest on the Revolving Loans shall be payable by Borrower
on the first day of each month, calculated upon the closing daily balances in
the loan account of Borrower for each day during the immediately preceding
month, at the per annum rate set forth as the Interest Rate in Section 10.3(A).
The Interest Rate shall increase or decrease by an amount equal to each increase
or decrease, respectively, in the Prime Rate (as defined below), effective as of
the date of each such change. On and after any Event of Default or termination
or non-renewal hereof, interest on all unpaid Obligations shall accrue at a rate
equal to two percent (2%) per annum in excess of the Interest Rate otherwise
payable until
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such time as all Obligations are indefeasibly paid in full (notwithstanding
entry of any judgment against Borrower or the exercise of any other right or
remedy by Lender), and all such interest shall be payable on demand. Interest
shall in no month be less than the Interest Rate multiplied by the Minimum
Borrowing set forth in Section 10.1(E). In no event shall charges constituting
interest exceed the rate permitted under any applicable law or regulation, and
if any provision of this Agreement is in contravention of any such law or
regulation, such provision shall be deemed amended to conform thereto.
The "Prime Rate" is the rate of interest publicly announced by The Chase
Manhattan Bank in New York, New York, or its successors and assigns from time to
time as its prime rate.
3.2 Fees. Borrower shall pay to Lender:
(a) Closing Fee. At closing a Closing Fee in the amount set
forth in Section 10.3(C).
(b) Facility Fee. A Facility Fee (fully earned at closing or the
beginning of any renewal term) payable in installments at each anniversary of
closing or renewal term as set forth in Section 10.3(D).
(c) Collateral Handling Fee. At closing and on each anniversary
of closing, including each anniversary occurring during any renewal term, a
Collateral Handling Fee (fully earned at closing and on each anniversary date)
in the amount set forth in Section 10.3(E).
(d) Unused Line Fee. Intentionally Omitted.
SECTION 4. GRANT OF SECURITY INTEREST
4.1 Grant of Security Interest. To secure the payment and performance in
full of all Obligations, Borrower hereby grants to Lender a continuing
security interest in and lien upon, and a right of setoff against, and
Borrower hereby assigns and pledges to Lender, all of the Collateral,
including any Collateral not deemed eligible for lending purposes.
4.2 "Obligations" shall mean any and all Revolving Loans, Accommodations and
all other indebtedness, liabilities and obligations of every kind,
nature and description owing by Borrower to Lender and/or its
affiliates, including principal, interest,
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charges, fees and expenses, however evidenced, whether as principal,
surety, endorser, guarantor or otherwise, whether arising under this
Agreement or otherwise, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal Term
or after the commencement of any case with respect to Borrower under the
United States Bankruptcy Code or any similar statute, whether direct or
indirect, absolute or contingent, joint or several, due or not due,
primary or secondary, liquidated or unliquidated, secured or unsecured,
original, renewed or extended and whether arising directly or howsoever
acquired by Lender including from any other entity outright,
conditionally or as collateral security, by assignment, merger with any
other entity, participations or interests of Lender in the obligations
of Borrower to others, assumption, operation of law, subrogation or
otherwise and shall also include all amounts chargeable to Borrower
under this Agreement or in connection with any of the foregoing.
4.3 "Collateral" shall mean all of the following property of Borrower:
(a) All now owned and hereafter acquired right, title and
interest of Borrower 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
licensor or licensee, choses 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 Lender, its affiliates or any entity which, at
any time, participates in Lender's financing of Borrower or at any other
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 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'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 licensor thereof;
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(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 in, to and in respect of any personal property in or upon
which Borrower 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, 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
5.1 Collections. Borrower will, at Borrower's expense and in the manner
requested by Lender from time to time, direct that all remittances and
all other proceeds of accounts and other Collateral be sent to a lock
box designated by Lender, and deposited into a bank account selected by
Lender with acceptable arrangements with the bank providing among other
things, that following the occurrence of an Event of Default all funds
deposited in the bank account shall be transferred solely to Lender.
Borrower shall bear all risk of loss of any funds deposited into such
account. In connection therewith, Borrower shall execute such lock box
and bank account agreements as Lender shall specify. Any collections or
other proceeds received by Borrower shall be held in trust for Lender
and Borrower shall cause all such collections or other proceeds to be
remitted immediately to Lender in kind.
Borrower will cause Ride Canada to collect all of Ride Canada's accounts
and other proceeds of Collateral and promptly deposit such collections and
proceeds in a bank account selected by Lender with arrangements with such bank
that Ride Canada will have
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access and control of such account but that upon notice by Lender to the bank of
an occurrence of an Event of Default, Ride Canada shall have no right of
withdrawal or use of any funds in such account and all funds at any time
deposited in such account shall be promptly transferred and deposited into a
bank account maintained in the name of Lender. Borrower shall cause Bank Canada
to execute such bank account agreements relating to the foregoing as Lender
shall specify. Bank Canada shall also acknowledge and agree that following an
Event of Default any collections of accounts or other proceeds shall be held in
trust for Lender and be immediately deposited into the above account or be
remitted to Lender.
5.2 Charges to Loan Account. At Lender's option, all payments of principal,
interest, fees, costs, expenses and other charges provided for in this
Agreement, or in any other agreement now or hereafter existing between
Lender and Borrower, may be charged on the date when due, as principal
to any loan account of Borrower maintained by Lender. Interest, fees for
Accommodations and any other amounts payable by Borrower to Lender based
on a per annum rate shall be calculated on the basis of actual days
elapsed over a 360-day year.
5.3 Payments.
(a) All Obligations shall be payable at Lender's Office set
forth in Section 10.5(A) or at Lender's bank designated in Section 10.5(B) or at
such other bank or place as Lender may expressly designate from time to time for
purposes of this Section. All payments due under this Agreement, all loans and
Accommodations to be provided by Lender to Borrower hereby, all determinations
of the amount of Eligible Accounts and the value of Eligible Inventory, and all
other calculations and transactions contemplated under this Agreement will be in
United States Dollars. Lender shall apply all proceeds of accounts or other
Collateral received by Lender and all other payments in respect of the
Obligations to the Revolving Loans or to any other Obligations then due, in
whatever order or manner Lender shall determine.
(b) For purposes of determining Gross Availability and Net
Availability and for the calculation of the Minimum Borrowing, remittances and
other payments will be treated as credited to the loan account of Borrower
maintained by Lender and Collateral balances to which they relate, upon the date
of Lender's receipt of advice from Lender's bank that such remittances or other
payments have been credited to Lender's account or in the case of remittances or
other payments received directly in kind by Lender, upon the date of Lender's
deposit thereof at Lender's bank, subject to final payment and collection. In
computing interest charges, the loan account of Borrower will be credited with
remittances
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and other payments for the number of days set forth in Section
10.3(B) after the day Lender has received advice of receipt of remittances in
Lender's account at Lender's Bank. For purposes of this Agreement, "BUSINESS
DAY" shall mean any day other than a Saturday, Sunday or any other day on which
Lender or banks located in states where Lender has its offices, are authorized
to close.
5.4 Loan Account Statements. Lender shall render to Borrower monthly a loan
account statement. Each statement shall be considered correct and
binding upon Borrower as an account stated, except to the extent that
Lender receives, within sixty (60) days after the mailing of such
statement, written notice from Borrower of any specific exceptions by
Borrower to that statement.
5.5 Direct Collections. Lender may, at any time, (a) notify any account
debtor that the accounts and other Collateral which includes a monetary
obligation have been assigned to Lender by Borrower or Ride Canada, as
applicable, and that payment thereof is to be made to the order of and
directly to Lender, (b) send, or cause to be sent by its designee,
requests (which may identify the sender by a pseudonym) for verification
by telephone, in writing or otherwise of accounts and other Collateral
directly to any account debtor or any other obligor or any bailee with
respect thereto, (c) demand, collect or enforce payment of any accounts
or such other Collateral, but without any duty to do so, and Lender
shall not be liable for any failure to collect or enforce payment
thereof, (d) take or bring, in the name of Lender or Borrower or Ride
Canada, as applicable, all steps, actions, suits or proceedings deemed
by Lender necessary or desirable to effect collection of or other
realization upon the accounts and other Collateral, (e) after an Event
of Default, change the address for delivery of mail to Borrower or to
Ride Canada, as applicable, and to receive and open mail addressed to
Borrower or to Ride Canada, as applicable, and (f) after an Event of
Default, extend the time of payment of, compromise or settle for cash,
credit, return of merchandise, and upon any terms or conditions, any and
all accounts or other Collateral which includes a monetary obligation
and discharge or release the account debtor or other obligor, without
affecting any of the Obligations. At Lender's request, all invoices and
statements sent to any account debtor, other obligor or bailee, shall
state that the accounts and such other Collateral have been assigned to
Lender and are payable directly and only to Lender .
5.6 Attorney-in-Fact. Borrower hereby irrevocably appoints Lender as
Borrower's attorney-in-fact and authorizes Lender at Borrower's sole
expense, to exercise at any times in Lender's discretion all or any of
the powers necessary for Lender to obtain information about the
Collateral or to enforce Lender's rights.
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5.7 Liability. Borrower hereby releases and exculpates Lender, its officers
and employees from any liability arising from any acts under this
Agreement or in furtherance thereof, including, without limitation, from
liability for any withholding taxes imposed by any Province of Canada,
except for gross negligence or willful misconduct. Lender will not have
any liability to Borrower for lost profits or other special or
consequential damages.
5.8 Administration of Accounts. After written notice by Lender to Borrower
or without notice after an Event of Default, Borrower shall not, and
shall not permit Ride Canada to: (a) amend, modify, settle or compromise
any of the accounts or any other Collateral which includes a monetary
obligation, (b) release in whole or in part any account debtor or other
person liable for the payment of any of the accounts or any such other
Collateral, or (c) grant any credits, discounts, allowances, deductions,
return authorizations or the like with respect to any of the accounts or
any such other Collateral.
5.9 Documents. Borrower shall deliver to Lender, as Lender may request, all
documents, schedules, invoices, proofs of delivery, purchase orders,
statements, contracts and all other information evidencing or relating
to the Collateral, in form and substance satisfactory to Lender and duly
executed by Borrower or Ride Canada, as applicable. Without limiting the
provisions of Section 5.5, Borrower's or Ride Canada's, as applicable,
granting of credits, discounts, allowances, deductions, return
authorizations or the like will be promptly reported to Lender in
writing. In no event shall any schedule or confirmatory assignment (or
the absence thereof or omission of any of the accounts or other
Collateral therefrom) limit or in any way be construed as a waiver,
limitation or modification of the security interests or rights of Lender
or the warranties, representations and covenants of Borrower under this
Agreement. Any documents, schedules, invoices or other paper delivered
to Lender by Borrower may be destroyed or otherwise disposed of by
Lender six (6) months after receipt by Lender, unless Borrower requests
their return in writing in advance and makes prior arrangements for
their return at Borrower's expense.
5.10 Access. Lender shall have access, prior to an Event of Default during
reasonable business hours and on or after an Event of Default at any
time, to all of the premises where Collateral is located for the
purposes of inspecting or copying the Collateral, and all Borrower's or
Ride Canada's, as applicable, books and records. Lender, at no charge,
may use such of Borrower's or Ride Canada's, as applicable, personnel,
equipment, including computer equipment, programs, printed output and
computer
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readable media, supplies and premises for the collection of accounts and
realization on other Collateral as Lender, in its sole discretion, deems
appropriate. Borrower hereby irrevocably authorizes all accountants and
third parties to disclose and deliver to Lender at Borrower's expense
all financial information, books and records, work papers, management
reports and other information in their possession regarding Borrower.
5.11 Environmental Audits. From time to time, but not more frequently than
semi-annually (provided Borrower is not in default) as requested by
Lender, at the sole expense of Borrower, Borrower shall provide Lender,
or its designee, complete access to all of Borrower's facilities for the
purpose of conducting an environmental audit of such facilities as
Lender may deem necessary.
SECTION 6. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Borrower hereby represents, warrants and covenants to Lender the following, the
truth and accuracy of which, and compliance with which, shall be continuing
conditions of the making of loans or other credit accommodations by Lender to
Borrower:
6.1 Financial and Other Reports.
(a) Borrower shall keep and maintain its books and records in
accordance with generally accepted accounting principles, consistently applied.
Borrower shall, at its expense on or before Wednesday of each week, deliver to
Lender true and complete weekly inventory reports for Borrower and Ride Canada
relating to the prior week. Borrower shall, at its expense, deliver to Lender:
(i) true and complete agings of its and Ride Canada's accounts receivable and
accounts payable on or before the tenth (10th) day of each month relating to the
prior month; (ii) weekly perpetual inventory reports on finished goods for
Borrower and Ride Canada; (iii) monthly inventory reports covering Borrower's
and Ride Canada's respective raw materials and work in process by location on or
before the thirtieth (30th) day of each month relating to the prior month, and
(iv) internally prepared interim financial statements on or before the thirtieth
(30th) day of each month relating to the prior month. 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 statement (which shall be
consistent with the audited statements).
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Borrower shall provide cash flow projections in a format and at such intervals
as may be acceptable to Lender. All of the foregoing shall be in such form and
together with such information with respect to the business of Borrower, Ride
Canada or any guarantor, as Lender may in each case request.
(b) Borrower shall deliver to Lender promptly upon Borrower's
filing thereof, copies of all reports to or other documents filed by Borrower
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 and Ride Canada may from time to time render
invoices under Borrower's and Ride Canada's trade names set forth in
Section 10.5(g) and, Borrower represents that: (a) each trade name does
not refer to another corporation or other legal entity, (b) all accounts
and proceeds thereof (including any returned merchandise) invoiced under
any such trade names are owned exclusively by Borrower or Ride Canada
and (c) Lender may receive, endorse and deposit to any loan account of
Borrower maintained by Lender all checks or other remittances made
payable to any trade name of Borrower or Ride Canada representing
payment with respect to such sales or services.
6.3 Losses. Borrower 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's or Ride Canada's business, assets,
liabilities or condition, financial or otherwise.
6.4 Books and Records. Borrower's and Ride Canada's books and records
concerning accounts and the respective chief executive offices of
Borrower and Ride Canada are and shall be maintained only at the address
set forth in Section 10.5(d) and (e). Borrower's 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 or Ride Canada may change such locations or open a new
place of business after thirty (30) days prior written notice to Lender.
Borrower 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.
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6.5 Title. Borrower or Ride Canada has and at all times will continue to
have good and 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'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. Borrower shall not, without Lender's prior
written consent, directly or indirectly, or permit Ride Canada, directly
or indirectly, to: (a) sell, lease, transfer, assign, abandon or
otherwise dispose of any part of the Collateral or any material portion
of its other assets (other than sales of inventory to buyers in the
ordinary course of business) or (b) consolidate with or merge with or
into any other entity, or permit any other entity to consolidate with or
merge with or into Borrower or Ride Canada or (c) form or acquire any
interest in any firm, corporation or other entity.
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6.7 Insurance. Borrower 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's expense, any such insurance should
Borrower 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 shall provide evidence of such insurance and a
lender's loss payable endorsement satisfactory to Lender. Borrower shall
deliver to Lender, in kind, all instruments representing proceeds of
insurance received by Borrower. 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 is and at all times will continue to be,
and Borrower 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 or
Ride Canada or any of their property. Borrower shall pay and discharge,
and shall cause Ride Canada to pay and discharge, all taxes, assessments
and governmental charges against Borrower, 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. With respect to each account deemed an Eligible Account,
except as reported in writing to Lender, Borrower has no knowledge that
any of the criteria for eligibility are not or are no longer satisfied
and the eligibility criteria will continue to be satisfied. All
statements made and all unpaid balances and other information appearing
in the invoices, agreements, proofs of rendition of services and
delivery of goods and other documentation relating to the accounts, and
all confirmatory assignments, schedules, statements of account and books
and records with respect thereto, are true and correct and in all
respects what they purport to be.
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6.10 Equipment. With respect to Borrower's equipment, Borrower 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. Borrower will not, directly or indirectly: (a)
lend or advance money or property to, guarantee or assume indebtedness
of, or invest (by capital contribution or otherwise) in any person,
firm, corporation or other entity; or (b) declare, pay or make any
dividend (other than regularly-scheduled, but not accelerated or prepaid
dividends on Borrower's shares of Class A and Class B Preferred Stock),
redemption or other distribution on account of any shares of any class
of stock of Borrower now or hereafter outstanding; or (c) make any
payment of the principal amount of or interest on any indebtedness owing
to any officer, director, shareholder, or affiliate of Borrower; or (d)
make any loans or advances to any officer, director, employee,
shareholder or affiliate of Borrower, (e) enter into any sale, lease or
other transaction with any officer, director, employee, shareholder or
affiliate of Borrower on terms that are less favorable to Borrower than
those which might be obtained at the time from persons who are not an
officer, director, employee, shareholder or affiliate of Borrower.
6.13 Fees and Expenses. Borrower 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, any guarantor or any third party directly or
indirectly arising out of or related to the relationship between
Borrower and Lender or any guarantor and Lender, including, but not
limited to the following, whether incurred before, during or after the
initial or any renewal Term or after the commencement of any case with
respect to Borrower or any 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,
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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) all expenses and
costs heretofore and from time to time hereafter incurred by Lender
during the course of periodic field examinations of the Collateral and
Borrower's operations including field examiner travel, food and lodging,
plus a per diem charge at the rate set forth in Section 10.3(G) for
Lender's examiners in the field and office; 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's sole expense, Borrower 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 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 hereby authorizes
Lender to file financing statements or amendments against Borrower in
favor of Lender with respect to the Collateral, without Borrower's
signature and to file as financing statements any carbon, photographic
or other reproductions of this Agreement or any financing statements
signed by Borrower.
6.15 Environmental Condition. None of Borrower'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. Borrower has not received a
summons, citation, notice, or directive from the Environmental
Protection Agency or any other federal or state governmental agency any
action or omission by Borrower resulting in the releasing, or otherwise
exposing of hazardous waste or hazardous substances into the
environment. Borrower is 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.
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6.16 Year 2000 Compliance. The Borrower 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 represents and warrants 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's or Ride Canada's business
condition. Upon request, the Borrower shall provide assurance acceptable
to the Lender that the Borrower's and Ride Canada's computer systems and
software are or will be Year 2000 compliant on a timely basis. The
Borrower shall immediately advise Lender in writing of any material
changes in the Borrower's or Ride Canada's Year 2000 plan, timetable or
budget.
6.17 State of Incorporation. If Borrower 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).
SECTION 7. EVENTS OF DEFAULT AND REMEDIES
7.1 Events of Default. All Obligations shall be immediately due and payable,
without notice or demand, and any provisions of this Agreement as to
future loans and credit accommodations by Lender shall terminate
automatically, upon the termination or non-renewal of this Agreement or,
at Lender's option, upon or at any time after the occurrence or
existence of any one or more of the following "EVENTS OF DEFAULT":
(a) Borrower fails to pay when due any of the Obligations or
fails to perform any of the terms of this Agreement or any other existing or
future financing, security or other agreement between Borrower and Lender or any
affiliate of Lender;
(b) Any representation, warranty or statement of fact made by
Borrower 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) Any guarantor revokes, terminates or fails to perform any of
the terms of any guaranty, endorsement or other agreement of such party in favor
of Lender or any affiliate of Lender;
(d) Any judgment or judgments aggregating in excess of the
amount set forth in Section 10.5(i) or any injunction or attachment is obtained
against Borrower or any guarantor, which remains unstayed for a period of ten
(10) days or is enforced;
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(e) Borrower or any guarantor dies or ceases to exist or the
usual business of Borrower or any guarantor ceases or is suspended;
(f) Any change in the controlling ownership of Borrower;
(g) Borrower or any 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 any guarantor;
(i) The indictment or threatened indictment of Borrower or any
guarantor under any criminal statute, or commencement or threatened commencement
of criminal or civil proceedings against Borrower or any guarantor, pursuant to
which statute or proceedings the penalties or remedies sought or available
include forfeiture of any of the property of Borrower or such guarantor which
Lender believes may have a material adverse effect on the Collateral or
Borrower's business;
(j) Any default or event of default occurs on the part of
Borrower under any material agreement, document or instrument to which Borrower
is a party or by which Borrower or any of its property is bound;
(k) Lender in good faith believes that either (i) the prospect
of payment or performance of the Obligations is impaired or (ii) the Collateral
is not sufficient to secure fully the Obligations; or
(l) Any material change occurs in the nature or conduct of
Borrower's business.
7.2 Remedies. Upon the occurrence of an Event of Default and at any time
thereafter, Lender shall have all rights and remedies provided in this
Agreement, any other agreements between Borrower and Lender, the Uniform
Commercial Code and other applicable law, all of which rights and
remedies may be exercised without notice to Borrower, 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
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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, 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, at Borrower'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 Borrower, which right or equity of
redemption is hereby expressly waived and released by Borrower. 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 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 waives 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 waives
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 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 under any agreement with a third
party or pay or bond on appeal any judgment entered against Borrower,
discharge taxes, liens, security interests or
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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's loan account for any amounts so expended,
such amounts to be repayable by Borrower 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.
SECTION 8. JURY TRIAL WAIVER; CERTAIN OTHER WAIVERS AND CONSENTS
8.1 JURY TRIAL WAIVER. BORROWER 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 OR
LENDER, OR, IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES
TO THE RELATIONSHIP BETWEEN BORROWER AND LENDER. IN NO EVENT WILL LENDER
BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES.
8.2 Counterclaims. Borrower waives 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 hereby irrevocably submits and consents to the
nonexclusive jurisdiction of the State and Federal Courts located in the
State in which the office of Lender designated in Section 10.5(a) is
located and 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 waives 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 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
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commenced by Borrower 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 waives any objection based on FORUM NON CONVENIENS and any
objection to venue 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 and Lender and shall continue in full force and
effect for a term set forth in Section 10.6 from the date hereof and
shall be deemed automatically renewed, based upon all of the terms and
provisions of this Agreement, for successive terms of equal duration
thereafter unless terminated as of the end of the initial or any renewal
term (each a "TERM") by either party giving the other written notice at
least sixty (60) days' prior to the end of the then current Term.
9.2 Early Termination. Borrower may also terminate this Agreement by giving
Lender at least thirty (30) days prior written notice and payment in
full of all of the Obligations as provided herein, including the Early
Termination Fee, unpaid Facility Fee and any other fees. Thirty days
after receipt of such early termination notice, Lender need not make any
further loans or accommodations. Lender shall also have the right to
terminate this Agreement at any time upon or after the occurrence of an
Event of Default. If Lender terminates this Agreement upon or after the
occurrence of an Event of Default, Borrower shall pay Lender forthwith,
in full, payment in all Obligations, including the Early Termination
Fee, unpaid Facility Fee and any other fees. In view of the
impracticality and extreme difficulty of ascertaining actual damages and
by mutual agreement of the parties as to a reasonable calculation of
Lender's lost profits, the Early Termination fee shall be the percentage
of the Maximum Credit set forth in Section 10.3(h). Provided no Event of
Default has occurred and is continuing at the time of Lender's receipt
and satisfactory review of Borrower's March 31, 1999 financial statement
and reports, Lender agrees, upon written request of Borrower given to
Lender on or before delivery of such financials, to negotiate with
Borrower an increase in the Maximum Credit and a decrease in the
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Interest Rate. If Borrower and Lender are unable to reach a mutually
satisfactory agreement, Borrower may, at its option but upon written
notice provided at least 30 days prior to the first anniversary of the
closing, terminate this Agreement on the first anniversary date, and
shall pay in full all of the outstanding Obligations plus a ----
termination fee equal to one percent (1%) of the then Maximum Credit.
All other fees required to be paid as described above, including but not
limited to any unpaid Facility Fee, Collateral Handling Fee or Early
Termination Fee, shall be waived.
9.3 Termination Indemnity Deposit. Upon termination of this Agreement by
Borrower, as permitted herein, in addition to payment of all Obligations
which are not contingent, Borrower shall deposit such amount of cash
collateral as Lender determines is necessary to secure Lender from loss,
cost, damage or expense, including reasonable attorneys' fees, in
connection with any open Accommodations or remittance items or other
payments provisionally credited to the Obligations and/or to which
Lender has not yet received final and indefeasible payment.
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 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 assignable nor inure to the successors and
assigns of Borrower.
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9.7 Discharge of Borrower. No termination of this Agreement shall relieve or
discharge Borrower 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.
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 in which the office of Lender set
forth in Section 10.5(A) below is located.
SECTION 10. ADDITIONAL DEFINITIONS AND TERMS
10.1 (a) Maximum Credit: $15,000,000, provided that the Maximum
Credit shall increase to $17,000,000 only
for the period of October 15, 1998 through
and including December 15, 1998.
(b) Gross Availability Formulas:
Eligible Accounts Percentage: 85%, provided that the Dilution
Percentage does not exceed 5%.
The Dilution Percentage is the
sum of Borrower's or Ride
Canada's credits, allowances,
discounts, write-offs,
contra-accounts and offsets and
deductions which reduce the value
of accounts receivable divided by
gross invoices. The initial dilution
percentage hereunder until
May 31, 1999 shall be 11%.
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Thereafter Lender shall calculate
the Dilution Percentage on a
trailing 13 month average basis.
If the Dilution Percentage is 5%
or less, the Eligible Accounts
Percentage will not be reduced. If
the Dilution Percentage exceeds
5%, then the Eligible Accounts
Percentage shall be reduced by
1% for each percent of dilution
(for example a 7% Dilution
Percentage shall reduce an 85%
Eligible Accounts Percentage to a
78% Eligible Accounts
Percentage).
The aggregate Revolving Loans outstanding at
any one time based upon the Eligible
Accounts and the Eligible Inventory of Ride
Canada shall not exceed one-third (1/3) of
Borrower's total outstanding Revolving
Loans.
Eligible Inventory Percentages:
Finished Goods 55%
Raw Materials N/A%
(c) Inventory Sublimit(s): $6,500,000 from April 1st
through September 30th of
each year;
$3,250,000 during October of
each year;
$2,500,000 during November
of each year;
$2,000,000 during December of
each year; and
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Lender shall make no Revolving
Loans based upon the Eligible
Inventory of Borrower or Ride
Canada from January 1st through
and including March 31st of each
year.
(d) Maximum days after Invoice
Date for Eligible Accounts: 90 days, provided that accounts
with extended terms may not be
outstanding for more than 30 days
past due date or 180 days past
invoice date.
(e) Minimum Borrowing: $N/A
10.2 Term Loan: Intentionally Deleted
10.3 Interest, Fees & Charges:
(a) Interest Rate: Prime Rate
plus % per annum 1.50%; provided, however, such
interest rate margin shall be
permanently reduced to 0.50% if,
based upon the financial
statements delivered by Borrower
to Lender hereunder, Lender
determines that Borrower has
positive net income on a
consolidated basis for the trailing
twelve-month period ending
June 30, 1999 or for the trailing
twelve-month period ending at the
end of any subsequent fiscal
quarter of Borrower.
(b) Clearance: 3 Business
Days
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(c) Closing Fee: $75,000, provided
that Lender
acknowledges prior
receipt from
Borrower of one-
half ($37,500) of
such fee.
(d) Facility Fee:
First Anniversary: 0.50% of the then applicable
Maximum Credit.
Second Anniversary: 0.50% of the then applicable
Maximum Credit.
(e) Collateral Handling Fee: $25,000
(f) Unused Line Fee: per annum N/A %
(g) Field Examination per diem
charge per examiner Lender's prevailing
rate (currently $650)
(h) Early Termination Fee:
First year: 3.0% of the
Maximum Credit.
Second year: 1.0% of the
Maximum Credit.
Third year
or during any renewal term: 1.0% of the
Maximum Credit.
10.3A Accommodations:
(a) Lender's Charge for Accommodations 1.5% per annum (over a
360 - day year) of the face
amount of any standby or
documentary letter of
credit plus any fees and
costs incurred by Lender
from the issuing bank.
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(b) Sublimit for Accommodations: $8,000,000
10.4 Financial Covenants: Intentionally Omitted
10.5 (a) Lender's Office: 000 Xxxxx Xxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(b) Lender's Bank: Bank of America, N.T. & S.A.
(c) Borrower: Ride Snowboard Company
Ride Manufacturing, Inc.
SMP Clothing, Inc.
Smiley Hats, Inc.
(d) Borrower's Chief Executive Office: 0000-000xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxxxxx 00000
(e) Locations of Eligible Inventory
Collateral: SMP Clothing, Inc.
0000 Xxxxxxxxxx, Xxx. X
Xxxxx Xxxxx. XX 00000
Smiley Hats, Inc.
000 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Ride Manufacturing, Inc.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Ride Manufacturing
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Ride Canada, Inc.
000 Xxxxxxxxxxx Xxxxx, #0
Xxxxxxxxx, XX Xxxxxx
X0X 0X0
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(f) Borrower's Other Offices and Locations
of Collateral: WMI - Kamloops,
B.C., Canada
Expeditors -
Brussels, Belgium
Expeditors - Hong Kong
(g) Borrower's Trade Names for Invoicing: Ride Sports;
Ride Snowboards;
SMP Clothing;
Smiley Hats; and
Ride Canada
(h) Borrower's State of Incorporation: Ride Snowboard Company
Washington
Ride Manufacturing, Inc.
California
SMP Clothing, Inc.
Washington
Smiley Hats, Inc.
Nevada
(i) Judgment Amount $50,000.00
10.6 Term: 3 Years
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IN WITNESS WHEREOF, Borrower and Lender have duly executed this
Agreement this ____ day of August, 1998.
LENDER BORROWER:
THE CIT GROUP/CREDIT
FINANCE, INC. RIDE SNOWBOARD COMPANY
By:____________________ By:______________________
Title:__________________ Title:_____________________
RIDE MANUFACTURING, INC.
By:______________________
Title:_____________________
SMP CLOTHING, INC.
By:______________________
Title:_____________________
SMILEY HATS, INC.
By:______________________
Title:_____________________
ACKNOWLEDGED AND AGREED:
RIDE CANADA, INC.
By:______________________
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Title:_____________________
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RIDE, INC.
By:______________________
Title:_____________________
PRESTON BINDING COMPANY
By:______________________
Title:_____________________
CARVE, INC.
By:______________________
Title:_____________________
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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;
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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.
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