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Exhibit 10.16
BUSINESS LOAN AGREEMENT
This Business Loan Agreement (this "Agreement") is entered into as of the date
set forth below between Union Bank of California, N.A. ("Bank") and the
undersigned ("Borrower") with respect to each and every extension of credit
(whether one or more, collectively referred to as the "Loan") from Bank to
Borrower. In consideration of the Loan, Bank and Borrower agree to the following
terms and conditions:
1. The Loan.
1.1 The Note. The Loan is evidenced by one or more promissory notes or other
evidences of indebtedness, including each amendment, extension, renewal or
replacement thereof, which are incorporated herein by this reference (whether
one or more, collectively referred to as the "Note").
1.2 Borrowing Base. An amount of the Loan equal to $4,000,000.00, *is a
revolving loan subject to a borrowing base ("Borrowing Base Loan").
Notwithstanding any other provision of this Agreement or any other Loan
Document, Bank shall not be obligated to advance funds under the Borrowing Base
Loan, if the principal amount of such Borrowing Base Loan including such advance
exceeds 80% of Borrower's Eligible Accounts, plus 50% of Borrower's Eligible
Inventory not to exceed $1,400,000.00.
* Wherever "N/A" appears in a blank in this Agreement, it means the Subsection
in which it appears is deemed deleted from this Agreement.
The term "Accounts" means all presently existing and hereafter arising accounts
receivable, contract rights, chattel paper, and all other forms of obligations
owing to Borrower, payable in U.S. Dollars, arising out of the sale or lease of
goods, or the rendition of services by Borrower, whether or not earned by
performance, and any and all credit insurance, guaranties and other security, as
well as all merchandise returned to or reclaimed by Borrower and Borrower's
books and records relating to any of the foregoing.
The term "Eligible Accounts" means those Accounts, net of finance charges, which
are due and payable within ninety (90) days, or less, from the date of the
invoice, have been validly assigned to Bank and strictly comply with all of
Borrower's warranties and representations to Bank, but eligible Accounts shall
not include the following:
(a) Any Account with respect to which the account debtor is an officer,
shareholder, director, employee or agent of Borrower;
(b) Any Account with respect to which the account debtor is a subsidiary of,
related to, or affiliated or has common officers or directors with Borrower;
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(c) Any Account with respect to which goods are placed on consignment,
guaranteed sale or other terms by reason of which the payment by the account
debtor may be conditional;
(d) Any Account with respect to which the account debtor is not a resident of
the United States or Canada;
(e) Any Account with respect to which the account debtor is the United States or
any department, agency or instrumentality of the United States;
(f) Any Account with respect to which Borrower is or may become liable to the
account debtor for goods sold or services rendered by the account debtor to
Borrower;
(g) Any Account with respect to which there is asserted a defense, counterclaim,
discount or setoff, whether well-founded or otherwise, except for those
discounts, allowances and returns arising in the ordinary course of Borrower's
business;
(h) Any Account with respect to which the account debtor becomes insolvent,
fails to pay its debts as they mature or goes out of business or is owed by an
account debtor which has become the subject of a proceeding under any provision
of the United States Bankruptcy Code, as amended, or under any other bankruptcy
or insolvency law, including, but not limited to, assignments for the benefit of
creditors, formal or informal moratoriums, compositions or extensions with all
or substantially all of its creditors;
(i) Any Account owed by any account debtor with respect to which 25% or more of
the aggregate dollar amount of its Accounts is not paid within 90 days from the
date of the invoice;
(j) Any Account that is not paid by the account debtor within 90 days of the
date of invoice;
(k) Any Account that is not paid by the account debtor and for which a credit
memo has been issued which is over 90 days old;
(l) That portion of any Account owed by any single account debtor which exceeds
15% of all of the Accounts;
(m) Any Account which Bank deems not to be an Eligible Account; and
The term "Inventory" shall mean all present and future inventory in which the
Borrower has any interest, including, but not limited to, goods, machinery and
equipment held by the Borrower for sale or lease or to be furnished under a
contract of service and all of Borrower's present and future raw materials, work
in process, finished goods and packing and shipping materials, wherever located,
any documents of title representing any of the above.
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The term "Eligible Inventory" means that portion of Borrower's inventory of raw
materials and finished goods consisting of Borrower's main line(s) of business
products, which is (a) owned by Borrower, free and clear of all liens or
encumbrances except those in favor of Bank, (b) held for sale or lease by
Borrower and normally and currently saleable in the ordinary course of
Borrower's business, (c) of good and merchantable quality, free from defects,
(d) located only at locations in the United States of which Bank is notified in
writing, and (e) as to which Bank has been able to perfect and maintain
perfected a first priority security interest. Eligible Inventory does not
include any of the following: work in process, spare parts, returned items,
damaged, defective or recalled items, items unfit for further processing,
obsolete or unmerchantable items, items used as salesperson's samples or
demonstrators, inventory held on a consignment basis, inventory held in stock
more than twelve (12) months, or inventory which Bank otherwise deems not to be
Eligible Inventory.
1.3 Fee. Borrower shall pay to Bank an annual audit fee.
1.4 Collateral. The payment and performance of all obligations of Borrower under
the Loan Documents is and shall be during the term of the Loan secured by a
perfected security interest in such real or personal property collateral as is
required by Bank and each security interest shall rank in first priority unless
otherwise specified in writing by Bank.
1.5 Guaranty. The payment and performance of all obligations of Borrower under
the Loan Documents are and shall be during the term of the Loan guaranteed by:
Angeles Acquisition Corp.
1.6 Subordination. Certain other obligations of Borrower are and shall be during
the term of the Loan subordinated, to the repayment of the Loan and all other
obligations of Borrower to Bank, pursuant to one or more subordination
agreement(s) in favor Bank executed and delivered by: N/A.
2. Conditions To Availability of the Loan. Before Bank is obligated to disburse
all or any portion of the Loan, Bank must have received (a) the Note and every
other document required by Bank in connection with the Loan, each of which must
be in form and substance satisfactory to Bank (together with this Agreement,
referred to as the "Loan Documents"), (b) confirmation of the perfection of its
security interest in any collateral for the Loan, and (c) payment of any fee
required in connection with the Loan.
3. Representations and Warranties. Borrower represents and warrants (and each
request for a disbursement of the proceeds of the Loan shall be deemed a
representation and warranty made on the date of such request) that:
3.1 Borrower is an individual or Borrower is duly organized and existing under
the laws of the state of its organization and is duly qualified to conduct
business in each jurisdiction in which its business is conducted;
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3.2 The execution, delivery and performance of the Loan Documents executed by
Borrower are within Borrower's power, have been duly authorized, are legal,
valid and binding obligations of Borrower, and are not in conflict with the
terms of any charter, bylaw, or other organization papers of Borrower or with
any law, indenture, agreement or undertaking to which Borrower is a party of by
which Borrower is bound or affected;
3.3 All financial statements and other financial information submitted by
Borrower to Bank are true and correct in all material respects, and there has
been no material adverse change in Borrower's financial condition since the date
of the latest of such financial statements;
3.4 Borrower is properly licensed and in good standing in each state in which
Borrower is doing business, and Borrower has complied with all laws and
regulations affecting Borrower, including without limitation, each applicable
fictitious business name statute;
3.5 There is no event which is, or with notice or lapse of time or both would
be, an Event of Default (as defined in Article 5);
3.6 Borrower is not engaged in the business of extending credit for the purpose
of, and no part of the Loan will be used, directly or indirectly, for purchasing
or carrying margin stock within the meaning of Federal Reserve Board Regulation
U; and
3.7 Borrower is not aware of any fact, occurrence or circumstance which Borrower
has not disclosed to Bank in writing which has, or could reasonably be expected
to have, a material adverse effect on Borrower's ability to repay the Loan or
perform its obligations under the Loan Documents.
4. Covenants. Borrower agrees, so long as the Loan or any commitment to make any
advance under the Loan is outstanding and until full and final payment of all
sums outstanding under any Loan Document, that Borrower will:
4.1 Maintain:
(a) Working Capital equal to at least $500,000.00 As used herein, "Working
Capital" means the excess of current assets over current liabilities);
(b) A ratio of total liabilities to Tangible Net Worth of not greater than 3.75:
1.00 (As used herein "Tangible Net Worth" means net worth increased by
indebtedness of Borrower subordinated to Bank and decreased by patents,
licenses, trademarks, trade names, goodwill and other similar intangible assets,
organizational expenses, and monies due from affiliates including officers,
shareholders and directors);
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(c) A profit before taxes of not less than $800,000.00, to be measured as of the
end of each fiscal year of Borrower for the twelve month period immediately
preceding the date of measurement;
All accounting terms used in this Agreement shall have the definitions given
them by generally accepted accounting principles, unless otherwise defined
herein.
4.2 Give written notice to Bank within 15 days of the following:
(a) Any litigation or arbitration proceeding affecting Borrower where the amount
in controversy is $25,000.00 or more;
(b) Any material dispute which may exist between Borrower and any government
regulatory body or law enforcement body;
(c) Any Event of Default or any event which, upon notice, or lapse of time, or
both, would become an Event of Default;
(d) Any other matter which has resulted or is likely to result in a material
adverse change in Borrower's financial condition or operation; and
(e) Any Change in Borrower's name or the location of Borrower's principal place
of business, or the location of any collateral for the Loan, or the
establishment of any new place of business or the discontinuance of any existing
place of business.
4.3 Furnish to Bank an income statement, balance sheet, and statement of
retained earnings, with supportive schedules ("Financial Statement"), and any
other financial information requested by Bank, prepared in accordance with
generally accepted accounting principles and in a form satisfactory to Bank as
follows:
(a) Within 30 days after the close of each month, Borrower's Financial Statement
as of the close of such period;
(b) Within 90 days after the close of each fiscal year, a copy of Borrower's
annual Financial Statement prepared by Xxxxx Xxxxxxxx certified public
accountant on a (n) reviewed basis. Any independent certified public accountant
who prepares Borrower's Financial Statement shall be selected by Borrower and
reasonably satisfactory to Bank;
(c) If any portion of the Loan is a Borrowing Base Loan, within 20 days after
each calendar month end, a copy of Borrower's monthly accounts receivable and
accounts payable agings, and a certification of compliance with the borrowing
base described in Section 1.2 above, executed by Borrower, which certificate
shall accurately report Borrower's Accounts and Inventory and Eligible Accounts
and Inventory; and
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(d) A perpetual inventory system is required to be operating and in place prior
to March 31, 1997.
(e) Promptly upon request, any other financial information requested by Bank.
4.4 Pay or reimburse Bank for all costs, expenses and fees incurred by Bank in
preparing and documenting this Agreement and the Loan, and all amendments and
modifications thereof, including but not limited to all filing and recording
fees, costs of appraisals, insurance and attorney's fees, including the
reasonable estimate of the allocated costs and expenses of in-house legal
counsel and staff.
4.5 Maintain and preserve Borrower's existence, present form of business and all
rights, privileges and franchises necessary or desirable in the normal course of
its business, and keep all of Borrower's properties in good working order and
condition.
4.6 Maintain and keep in force insurance with companies acceptable to Bank and
in such amounts and types, including without limitation fire and public
liability insurance, as is usual in the business carried on by Borrower, or as
Bank may reasonably request. Such insurance policies must be in form and
substance satisfactory to Bank.
4.7 Maintain adequate books, accounts and records and prepare all financial
statements required hereunder in accordance with generally accepted accounting
principles, and in compliance with the regulations of any governmental
regulatory body having jurisdiction over Borrower or Borrower's business and
permit employees or agents of Bank at any reasonable time to inspect Borrower's
assets and properties, and to examine or audit Borrower's books, accounts and
records and make copies and memoranda thereof.
4.8 At all times comply with, or cause to be complied with, all laws, statutes,
rules, regulations, orders and directions of any governmental authority having
jurisdiction over Borrower or Borrower's business, and all material agreements
to which Borrower is a party.
4.9 [omitted]
4.10 Not purchase the debt or equity of another person or entity except for
savings accounts and certificates of deposit of Bank, direct U.S. Government
obligations and commercial paper issued by corporations with top ratings of
Xxxxx'x or Standard & Poor's, provided that all such permitted investments shall
mature within one year of purchase.
4.11 Not sell or discount any account receivable or evidence of indebtedness,
except to Bank or not borrow any money or become contingently liable for money
borrowed, except pursuant to agreements made with Bank.
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4.12 Neither liquidate, dissolve, enter into any consolidation, merger,
partnership, or other combination; nor convey, sell or lease all or the greater
part of its assets or business; nor purchase or lease all or the greater part of
the assets or business of another.
4.13 Not engage in any business activities or operations substantially different
from or unrelated to present business activities and operations.
4.14 Not, in any single fiscal year of Borrower, expend or incur obligations of
more than $400,000.00 for the acquisition of fixed or capital assets.
4.15 Not, in any single fiscal year of Borrower, enter into any lease of real or
personal property which would cause Borrower's aggregate annual obligations
under all such real and personal property leases to exceed $N/A.
4.16 Borrower will promptly, upon demand by Bank, take such further action and
execute all such additional documents and instruments in connection with this
Agreement as Bank in its reasonable discretion deems necessary, and promptly
supply Bank with such other information concerning its affairs as Bank may
request from time to time.
5. Events of Default. The occurrence of any of the following events ("Events of
Default") shall terminate any obligation on the part of Bank to make or continue
the Loan and automatically, unless otherwise provided under the Loan Documents,
shall make all sums of interest and principal and any other amounts owing under
the Loan immediately due and payable, without notice of default, presentment or
demand for payment, protest or notice of nonpayment or dishonor, or any other
notices or demands:
5.1 Borrower shall default in the due and punctual payment of the principal of
or the interest on the Note or any of the Loan Documents;
5.2 Any default shall occur under the Note;
5.3 Borrower shall default in the due performance or observance of any covenant
or condition of the Loan Documents;
5.4 Any guaranty or subordination agreement required hereunder is breached or
becomes ineffective, or any guarantor or subordinating creditor dies or disavows
or attempts to revoke or terminate such guaranty or subordination agreement; or
5.5 There is a change in ownership or control of 10% or more of the issued and
outstanding stock of Borrower or any quarantor, or (if the Borrower is a
partnership) there is a change in ownership or control of any general partner's
interest.
6. Miscellaneous.
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6.1 The rights, power and remedies given to Bank hereunder shall be cumulative
and not alternative and shall be in addition to all rights, power, and remedies
given to Bank by law against Borrower or any other person, including but not
limited to Bank's rights of setoff or banker's lien.
6.2 Any forbearance or failure or delay by Bank in exercising any right, power
or remedy hereunder shall not be deemed a waiver thereof and any single or
partial exercise of any right, power or remedy shall not preclude the further
exercise thereof. No waiver shall be effective unless it is in writing and
signed by an officer of Bank.
6.3 The benefits of this Agreement shall inure to the successors and assigns of
Bank and the permitted successors and assignees of Borrower, and any assignment
by Borrower without Bank's consent shall be null and void.
6.4 This Agreement and all other agreements and instruments required by Bank in
connection herewith shall be governed by and construed according to the laws of
the State of California.
6.5 Should any one or more provisions of this Agreement be determined to be
illegal or unenforceable, all other provisions nevertheless shall be effective.
In the event of conflict between the provisions of this Agreement and the
provisions of any note or reimbursement agreement evidencing any indebtedness
hereunder, the provisions of such note or reimbursement agreement shall prevail.
6.6 Except for documents and instruments specifically referenced herein, this
Agreement constitutes the entire agreement between Bank and Borrower regarding
the Loan and all prior communications, verbal or written, between Borrower and
Bank shall be of no further effect or evidentiary value.
6.7 The section and subsection headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
6.8 This Agreement may be amended only in writing signed by all parties hereto.
6.9 Borrower and Bank may execute one or more counterparts to this Agreement,
each of which shall be deemed an original, but taken together shall be one and
the same instrument.
6.10 Any notices or other communications provided for or allowed hereunder shall
be effective only when given by one of the following methods and addressed to
the respective party at its address given with the signatures at the end of this
Agreement and shall be considered to have been validly given: (a) upon delivery,
if delivered personally; (b) upon receipt, if mailed, first class postage
prepaid, with the United States Postal Service; (c) on the next business day if
sent by overnight courier service of recognized standing; and (d) upon telephone
confirmation of receipt, if telecopied.
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7. Additional Provisions. The following additional provision, if any, are hereby
made part of this Agreement:
In Witness Whereof, the parties hereto have duly executed this Agreement as of
January 15, 1997.
Union Bank of California, N.A. ("Bank") ("Borrower")
By: /s/ Xxx Xxxxxxx
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Title: Vice President Angeles Metal Trim Co.
Printed Name: Xxx Xxxxxxx
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxx
------------------------- ----------------------------
Title: Vice President Title: President
Printed Name: Xxxxx X. Sraiya Printed Name: Xxxxxxxx X. Xxxxxx
By: By: /s/ Xxxxxxx X. Xxxxx
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Title: Title: Secretary
Printed Name: Printed Name: Xxxxxxx X. Xxxxx
Address where notices to Bank are to be Address where notices to Bank are
sent: to be sent:
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Fax Number: Fax Number:
(000) 000-0000
