REVISED FACILITY DESCRIPTION RIDER
LOAN AGREEMENT DATED AUGUST 27, 1996 (the "LOAN AGREEMENT")
REVOLVING CREDIT WITH BORROWING BASE
The Bank agrees, on the terms and conditions herein set forth, to
make revolving credit advances to Borrower from time to time from
August 27, 1996 to and including August 27, 1997 in an aggregate
amount not to exceed at any one time outstanding the lesser of
(i) $3,750,000.00 or (ii) the sum of:
80% of Borrowing Base Guarantors' "Eligible Accounts" (as
hereinafter defined)
50% of Borrowing Base Guarantors' "Eligible Inventory" (as
hereinafter defined)
50% of Borrowing Base Guarantors' "Eligible Equipment" (as
hereinafter defined)
"Eligible Accounts" are those accounts (as defined in Article 9
of the Uniform Commercial Code) arising from the sale of goods or
services in the ordinary course of Borrowing Base Guarantors'
business and which the Bank, in the exercise of its credit
judgment, deems to be eligible for inclusion in the borrowing
base hereunder. Such accounts must be subject to the Bank's
perfected security interest, and must be subject to no other
lien, encumbrance or security interest to which the Bank has not
consented in writing. Such accounts must be evidenced by an
invoice or other documentary evidence satisfactory to the Bank.
Without limiting the generality of the foregoing, in no event
shall an account be an "Eligible Account" if any of the following
are applicable thereto:
a. it arises out of a sale to any person or entity who is
controlled by, under common control with or otherwise affiliated
with or related to the Borrower or any of the Guarantors; or
b. it remains unpaid more than 90 days after the original
invoice date; or
c. the account debtor is a supplier or creditor of the
Borrower or any of the Guarantors, or has disputed liability on
any account owing to the Borrower or any of the Guarantors, or
the account is otherwise subject to a right of setoff or
recoupment; or
d. the account debtor is located outside of the
continental United States, unless the account is secured by a
letter of credit, bank guaranty or other collateral acceptable to
the Bank; or
e. the sale from which the account arises is made on a
xxxx-and-hold, sale on approval, guaranteed return, consignment
or any other return or repurchase basis; or
f. the account debtor is the United States of America or
any state or other governmental unit, or any agency, department
or instrumentality or any of them; or
g. the goods giving rise to the account have not been
shipped and delivered to and accepted by the account debtor, or
the services giving rise to the account have not been rendered
and accepted by the account debtor; or the account does not
otherwise represent a final sale; or
h. the accounts of any single account debtor exceed a
credit limit to be determined by the Bank from time to time, to
the extent such account exceeds such credit limit; or
i. the Bank determines in its sole judgment, that the
collection of the account is uncertain or that the account may
not be paid by reason of the account debtor's inability or
unwillingness to pay; or
j. the accounts of a single account debtor for which 10%
or more of all of the accounts of that debtor are more than 90
days past due based on original invoice date.
Eligible Accounts shall be valued at the full face amount
thereof, less any available discounts and any amounts charged for
shipping or taxes.
"Eligible Inventory" consists of the Borrowing Base Guarantors'
inventory (as defined in Article 9 of the Uniform Commercial
Code) of finished goods and raw materials (but not work-in-process)
owned by the Borrowing Base Guarantors' and used in the
ordinary course of the Borrowing Base Guarantors' business, and
which is, in the Bank's sole judgement;
a. in good and saleable condition, and not obsolete or
unmerchantable;
b. located in the continental United States in facilities
owned by the Borrowing Base Guarantors' (or if located in
facilities leased by the Borrowing Base Guarantors', the landlord
thereof shall have entered into a waiver agreement satisfactory
to the Bank) and which is not in transit;
c. not subject to any licensing, patent, trademark,
royalty, copyright or other rights that would prevent the Bank
from selling such inventory without interference by or payment
over to any third party;
d. not packaging materials or office supplies to be used
by the Borrowing Base Guarantors';
e. conforms to all applicable standards promulgated by any
governmental authority having regulatory authority over such
goods or the use or sale thereof;
f. subject to the Bank's perfected security interest and
subject to no other lien, encumbrance or security interest to
which the Bank has not consented in writing; and
g. otherwise acceptable to the Bank.
Eligible Inventory shall be valued at the lower of cost or
market, on a first-in, first-out basis.
"Eligible Equipment" means equipment (as defined in the Uniform
Commercial Code) which:
a. is owned by the Borrowing Base Guarantors' free and
clear of all liens, encumbrances, and rights of others except the
security interest in favor of the Bank;
b. is located in the jurisdiction of which Bank has
perfected a security interest;
c. the Bank reasonably determines is not obsolete,
unsalable, damaged, or unfit for further processing; and
d. is otherwise reasonably acceptable to Bank.
At such intervals as the Bank may request, but in any event
not less often than monthly, Borrower agrees to deliver to the
Bank a certificate in the form of Exhibit A hereto, for each of
the Borrowing Base Guarantors, stating as of the date of such
certificate the amount of the Borrowing Base Guarantors' total
accounts, total inventory, total equipment, Eligible Accounts,
Eligible Inventory and Eligible Equipment and a summary borrowing
base certificate in the form of Exhibit B hereto. If at any time
the Bank determines or the certificates show that the outstanding
principal amount of all advances exceeds the Bank's maximum
commitment to the Borrower set forth in the first paragraph
hereof, you agree immediately to pay to the Bank an amount
sufficient to reduce the outstanding amount to or under the
Bank's maximum commitment.
The Bank's representatives shall have the right to audit the
Borrowing Base Guarantors books and records and to inspect the
Borrowing Base Guarantors inventory and equipment from time to
time, the costs of such audits and inspections to be borne by
Borrower. As soon as possible after learning that any account,
inventory or equipment has ceased to be an Eligible Account,
Eligible Inventory or Eligible Equipment, Borrower agrees to
notify the Bank and, if necessary, pay to the Bank the amount
necessary to reduce the total amount outstanding hereunder to the
limits of the commitment set forth in the first paragraph hereof.
Borrower hereby authorizes the Bank to contact the Borrowing Base
Guarantors account debtors from time to time to verify the
accounts.
Upon written notice to Borrower of its intention to do so,
the Bank may establish a lock-box special deposit account for the
collection of the accounts, and may notify the Borrowing Base
Guarantors account debtors that payments on the accounts are to
be made to such lock box or special deposit account. Borrower
hereby appoints the bank its attorney-in-fact to endorse the
Borrowing Base Guarantors names on any notes, checks, drafts,
acceptances or other instruments that may come into the Bank's
possession, and otherwise to effect collection of the accounts.
The Bank may establish a reasonable clearance period for any
instruments received by it in payment of the accounts.
Borrower will repay, and pay interest on, the aggregate
unpaid principal amount of all advances hereunder in accordance
with your promissory note dated August 27, 1996 (the "Note")
evidencing the indebtedness resulting from such advances.
So long as the Note remains unpaid or the Bank shall have
any commitment to advance funds to Borrower hereunder, Borrower
agrees that it will comply with the terms of the Loan Agreement.
If any term of the Loan Agreement is inconsistent with the terms
set forth herein or with the terms of the Note, then the terms
hereof or of the Note, as the case may be, shall govern.
Within the limits of this commitment, Borrower may borrow,
prepay and reborrow.
BORROWER: ROTHERWOOD CORPORATION
BY: /s/ Xxxxx Xxxxxxxxx
XXXXX XXXXXXXXX, PRESIDENT
GUARANTOR: XXXXXX INC.
BY: /s/ Xxxx Xxxxx
XXXX XXXXX, SECRETARY
GUARANTOR: THE AMERICAN COMPANIES, INC.
BY: /s/ Xxxx X. Xxxx
XXXX XXXX, SECRETARY
GUARANTOR: SAGEBRUSH TECHNOLOGY, INC.
BY: /s/ Xxxx X. Xxxx
XXXX XXXX, SECRETARY
GUARANTOR: PACER CORPORATION
BY: /s/ Xxxx Xxxxx
XXXX XXXXX, SECRETARY
GUARANTOR: AMERICAN BINDERY-XXXXX, INC.
BY: /s/ Xxxxx X. Xxxxxxxxx
XXXXX X. XXXXXXXXX, PRESIDENT
XXXX XXXXX KANSAS CITY BANK
By: __________________________
Title: ________________________
