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CREDIT AGREEMENT
by and between
JALATE LIMITED, INC., a California corporation
and
XXXXX FARGO HSBC TRADE BANK, N.A.
Dated as of
June 1, 1996
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Exhibit A - Addendum to Agreement
Exhibit B - Facility Supplement(s)
Exhibit C - Collateral/Credit Support Document
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XXXXX FARGO HSBC TRADE BANK CREDIT AGREEMENT
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JALATE LIMITED, INC., a California corporation ("Borrower"), organized under
the laws of the State of California whose chief executive office is located at
the address specified after its signature to this Agreement ("Borrower's
Address") and XXXXX FARGO HSBC TRADE BANK, N.A. ("Trade Bank"), whose address
is specified after its signature to this Agreement, have entered into this
CREDIT AGREEMENT as of June 1, 1996 ("Effective Date"). All references to this
"Agreement" include those covenants included in the Addendum to Agreement
("Addendum") attached as Exhibit A hereto.
1. CREDIT FACILITIES
1.1 THE FACILITIES. Subject to the terms and conditions of this
Agreement, Trade Bank will make available to Borrower each of those credit
facilities ("Facilities") for which a Facility Supplement ("Supplement") is
attached as Exhibit B hereto. Additional terms for each individual Facility
(and each subfacility thereof ("Subfacility")) are set forth in the Supplement
for that Facility. Each Facility will be available from the Closing Date until
the Facility Termination Date for that Facility. Collateral and credit support
required for each Facility are also set forth in the Supplement for each
Facility. Definitions for those capitalized terms not otherwise defined are
contained in Article 8 below.
1.2 CREDIT EXTENSION LIMIT. The aggregate outstanding amount of
all Credit Extensions may at no time exceed SIX MILLION DOLLARS ($6,000,000)
("Overall Credit Limit"). The aggregate outstanding amount of all Credit
Extensions outstanding at any time under any Facility may not exceed that
amount specified as the "Credit Limit" in the Supplement for that Facility, and
the aggregate outstanding amount of all Credit Extensions outstanding at any
time under each Subfacility (or any subcategory thereof) may not exceed that
amount specified as the "Credit Sublimit" in the Supplement for the relevant
Facility. An amount equal to 100% of each unfunded Credit Extension shall be
used in calculating the outstanding amount of Credit Extensions under this
Agreement.
1.3 REPAYMENT: INTEREST AND FEES. Each funded Credit Extension
shall be repaid by Borrower, and shall bear interest from the date of
disbursement at those per annum rates and such interest shall be paid, at the
times specified in the applicable Supplement, Note or Facility Document. With
respect to each Facility, Borrower agrees to pay to Trade Bank the fees
specified in the related Supplement as well as those fees specified in the
relevant Facility Document(s). Interest and fees will be calculated on the
basis of a 360 day year, actual days elapsed. Any overdue payments of
principal (and interest to the extent permitted by law) shall bear interest at
a per annum floating rate equal to the Prime Rate plus 5.0%.
1.4 PREPAYMENTS. Credit Extensions under any Facility may only be
prepaid in accordance with the terms of the related Supplement. At the time of
any prepayment (including, but not limited to, any prepayment which is a result
of the occurrence of an Event of Default and an acceleration of the
Obligations) Borrower will pay to Trade Bank all interest accrued on the amount
so prepaid to the date of such prepayment and all costs, expenses and fees
specified in the Loan Documents.
II. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Trade Bank that the following
representations and warranties are true and correct:
2.1 LEGAL STATUS. Borrower is duly organized and existing and in
good standing under the laws of the jurisdiction indicated in this Agreement,
and is qualified or licensed to do business in all jurisdictions in which such
qualification or licensing is required and in which the failure to so qualify
or to be so licensed could have a material adverse affect on Borrower.
2.2 AUTHORIZATION AND VALIDITY. The execution, delivery and
performance of this Agreement, and all other Loan Documents to which Borrower
is a party, have been duly and validly authorized, executed and delivered by
Borrower and constitute legal, valid and binding agreements of Borrower, and
are enforceable against Borrower in accordance with their respective terms.
2.3 BORROWER'S NAME. The name of Borrower set forth at the end of
this Agreement is its correct name. If Borrower is conducting business under a
fictitious business name, Borrower is in compliance with all laws relating to
the conduct of such business under such name.
2.4 FINANCIAL CONDITION AND STATEMENTS. All financial statements
of Borrower delivered to Trade Bank have been prepared in conformity with GAAP,
and completely and accurately reflect the financial condition of Borrower (and
any consolidated Subsidiaries) at the times and for the periods stated in such
financial statements. Neither Borrower nor any Subsidiary has any material
contingent liability not reflected in the aforesaid statement. Since the date
of the financial statements delivered to Trade Bank for the last fiscal period
of Borrower to end before the Effective Date, there has been no material adverse
change in the financial condition, business or prospects of Borrower. Borrower
is solvent.
2.5 LITIGATION. Except as disclosed in writing to Trade Bank prior
to the Effective Date, there is no action, claim, suit, litigation, proceeding
or investigation pending or (to best of Borrower's knowledge) threatened by or
against or affecting Borrower or
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any Subsidiary in any court or before any governmental authority, administrator
or agency which may result in (a) any material adverse change in the financial
condition or business of Borrower, or (b) any material impairment of the
ability of Borrower to carry on its business in substantially the same manner
as it is now being conducted.
2.6 OTHER OBLIGATIONS. Except as disclosed in writing to Trade
Bank prior to the Effective Date, neither Borrower not any Subsidiary are in
default of any obligation for borrowed money, any purchase money obligation or
any material lease, commitment, contract, instrument or obligation.
2.7 NO DEFAULTS. No Event of Default, and event which with the
giving of notice or the passage of time or both would constitute an Event of
Default, has occurred and is continuing.
2.8 INFORMATION PROVIDED TO TRADE BANK. The information provided to
the Trade Bank concerning Borrower's business is true and correct.
2.9 ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to Bank
in writing prior to the Effective Date, Borrower (as well as any Subsidiary) is
each in compliance in all material respects with all applicable Federal or
state environmental, hazardous waste, health and safety statutes, and any rules
or regulations adopted pursuant thereto, which govern or affect any of
Borrower's or any Subsidiary's operations and/or properties, including without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986,
the Federal Resource Conservation and Recovery Act of 1976, the Federal Toxic
Substances Control Act and the California Health and Safety Code, as any of the
same may be amended, modified or supplemented from time to time. None of the
operations of Borrower or of any Subsidiary is the subject of any Federal or
state investigation evaluating whether any remedial action involving a material
expenditure is needed to respond to a release of any toxic or hazardous waste
or substance into the environment.
III. CONDITIONS TO EXTENDING FACILITIES
3.1 Conditions to Initial Credit Extension. The obligation of
Trade Bank to make the first Credit Extension is subject to the fulfillment to
Trade Bank's satisfaction of the following conditions;
(a) APPROVAL OF TRADE BANK COUNSEL. All legal matters
relating to making the Facilities available to Borrower
must be satisfactory to counsel for Trade Bank.
(b) DOCUMENTATION. Trade Bank must have received, in form
and substance satisfactory to Trade Bank, the following
documents and instruments duly executed and in full
force and effect:
(1) a corporate borrowing resolution and incumbency
certificate if Borrower is a corporation, a
partnership or joint venture borrowing
certificate if Borrower is a partnership or
joint venture, and a limited liability company
borrowing certificate if Borrower is a limited
liability company;
(2) the Facility Documents for each Facility,
including, but not limited to, note(s) ("Notes")
for any Revolting Credit or Term Loan Facility,
Trade Bank's standard Continuing Commercial
Letter of Credit Agreement or Continuing Standby
letter of Credit Agreement for any letter of
credit Facility;
(3) those guarantees, security agreements, deeds of
trust, subordination agreements, intercreditor
agreements, factoring agreements, tax service
contracts, and other Collateral Documents
required by Trade Bank to evidence the
collateral/credit support specified in the
Supplement;
(4) if an audit or inspection of any books, records
or property is specified in the Supplement for
any Facility, an audit or inspection report from
Xxxxx Fargo or another auditor or inspector
acceptable to Trade Bank reflecting values and
property conditions satisfactory to Trade Bank;
(5) if an Eximbank guarantee is indicated in any
Facility Supplement, the Borrower Agreement
required by Eximbank together with the U.S.
Small Business Administration/Export-Import Bank
of the United States Joint Application For
Working Capital Guarantee, the "Loan
Authorization Agreement", the "Loan
Authorization Notice", and the latest "Country
Limitation Schedule of Eximbank";
(6) if Eximbank insurance is indicated in any
Facility Supplement, the "Export Credit
Insurance Policy" issued by Eximbank together
with a financial institution endorsement with
respect to that Insurance Policy and Eximbank's
premium payment report evidencing Borrower's
payment in full of all payments required under
the Insurance Policy in accordance with the
terms of the Insurance Policy, and an assignment
agreement accepted by Eximbank and acceptable to
Trade Bank;
(7) if an appraisal of any real property is
specified in any Facility Supplement, an
appraisal from an appraiser acceptable to Trade
Bank reflecting values satisfactory to Trade
Bank;
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(8) if a policy of title insurance is specified in any
Facility Supplement, an ALTA policy containing the
endorsements, and issued by a company, acceptable to
Trade Bank; and
(9) if insurance is required in the Addendum, the insurance
policies specified in the Addendum (or other
satisfactory proof thereof) from insurers acceptable to
Trade Bank.
3.2 CONDITIONS TO MAKING EACH CREDIT EXTENSION. The obligation of Trade
Bank to make each Credit Extension is subject to the fulfillment to Trade
Bank's satisfaction of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in this Agreement, the Facility Documents
and the Collateral Documents will be true and correct on as of
the date of the Credit Extension with the same effect as though
such representations and warranties had been made on and as of
such date;
(b) DOCUMENTATION. Trade Bank must have received, in form and
substance satisfactory to Trade Bank, the following documents
and instruments duly executed and in full force and effect:
(1) if the Credit Extension is the issuance of a Commercial
Letter of Credit, Trade Bank's standard Application For
Commercial Letter of Credit or standard Application and
Agreement For Commercial Letter of Credit;
(2) if the Credit Extension is the issuance of a Standby
Letter of Credit, Trade Bank's standard Application For
Standby Letter of Credit or standard Application and
Agreement For Standby Letter of Credit;
(3) if the Credit Extension is supported by an Eximbank
guarantee, Eximbank's "Preliminary Commitment and
Eximbank's Export Certificate";
(4) if the Credit Extension is the discount of foreign
accounts receivable and the Credit Extension is insured
by Eximbank, an assignment of the accounts being
discontinued in a form acceptable to Eximbank and Trade
Bank, a notice to each account debtor on each such
account, and copies of the invoices, bills of lading or
other evidence of export, together with copies of the
purchase order or contract of sale, pertaining to the
accounts being discounted duly executed by the account
debtor;
(5) if the Credit Extension is insured by Eximbank but is
not the discount of foreign accounts receivable, such
documents and instruments as are required by Eximbank;
(6) if a Borrowing Base Certificate is required for the
Credit Extension, a Borrowing Base Certificate
demonstrating compliance with the requirements for such
Credit Extension.
(c) FEES. Trade Bank must have received any fees required by the
Loan Documents to be paid at the time such Credit Extension is
made.
IV. AFFIRMATIVE COVENANTS
Borrower covenants that so long as Trade Bank remains committed to make
Credit Extensions to Borrower, and until payment of all Obligations and Credit
Extensions, Borrower will comply with each of the following covenants: (For
purposes of this Article IV, and Article V below, reference to "Borrower" may
also extend to Borrower's subsidiaries, if so specified in the Addendum.)
4.1 PUNCTUAL PAYMENTS. Punctually pay all principal, interest, fees and
other Obligations due under this Agreement or under any Loan Document at the
time and place and in the manner specified herein or therein.
4.2 NOTIFICATION TO TRADE BANK. Promptly, but in no event more than 5
calendar days after the occurrence of each such event, provide written notice
in reasonable detail of each of the following:
(a) OCCURRENCE OF A DEFAULT. The occurrence of any Event of Default
or any event which with the giving of notice or the passage of
time of both would constitute an Event of Default;
(b) BORROWER'S TRADE NAMES; PLACE OF BUSINESS. Any change of
Borrower's (or any Subsidiary's) name, trade name or place of
business, or chief executive officer;
(c) LITIGATION. Any action, claim, proceeding, litigation or
investigation threatened or instituted by or against or
affecting Borrower (or any Subsidiary) in any court or before
any government authority, administrator or
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agency which may materially and adversely affect Borrower's (or
any Subsidiary's) financial condition or business or Borrower's
ability to carry on its business in substantially the same
manner as it is now being conducted;
(d) UNINSURED OR PARTIALLY UNINSURED LOSS. Any uninsured or
partially uninsured loss through liability or property damage or
through fire, theft or any other cause affecting Borrower's (or
any Subsidiary's) property in excess of the aggregate amount
required hereunder;
(e) REPORTS MADE TO INSURANCE COMPANIES. Copies of all material
reports made to insurance companies; and
(f) ERISA. The occurrence and nature of any Reportable Event or
Prohibited Transaction, each as defined in ERISA, or any funding
deficiency with respect to any Plan.
4.3 BOOKS AND RECORDS. Maintain at Borrower's address books and records in
accordance with GAAP, and permit any representative of Trade Bank, at any
reasonable time, to inspect, audit and examine such books and records, to make
copies of them, and to inspect the properties of Borrower.
4.4 TAX RETURNS AND PAYMENTS. Timely file all tax returns and reports
required by foreign, federal, state and local law, and timely pay all foreign,
federal, state and local taxes, assessments, deposits and contributions owed by
Borrower. Borrower may, however, defer payment of any contested taxes, provided
that Borrower (i) in good faith contests Borrower's obligation to pay the taxes
by appropriate proceedings promptly instituted and diligently conducted, (ii)
notifies Trade Bank in writing of the commencement of, and any material
development in, the proceedings, (iii) posts bonds or takes any other steps
required to keep the contested taxes from becoming a lien upon any of the
Collateral, and (iv) makes provision, to Trade Bank's satisfaction, for eventual
payment of such taxes in the event Borrower is obligated to make such payment.
4.5 COMPLIANCE WITH LAWS. Comply in all material respects with the
provisions of all foreign, federal, state and local laws and regulations
relating to Borrower, including, but not limited to, those relating to
Borrower's ownership of real or personal property, the conduct and licensing of
Borrower's business, and health and environmental matters.
4.6 INSURANCE. Maintain and keep in force insurance of the types and in
amounts customarily carried in lines of business similar to that of Borrower,
including, but not limited to, fire, extended coverage, public liability, flood,
property damage and worker's compensation, with all such insurance to be in
amounts satisfactory to Trade Bank and to be carried with companies approved by
Trade Bank before such companies are retained, and deliver to Trade Bank from
time to time at Trade Bank's request schedules setting forth all insurance then
in effect. All insurance policies shall name Trade Bank as additional loss
payee, and shall contain a lender's loss payee endorsement in form reasonably
acceptable to Trade Bank. Upon Trade Bank's receipt of any insurance proceeds
pertaining to the Collateral, Trade Bank shall apply such proceeds to reduce the
outstanding funded Credit Extensions, and any remaining amounts after such
application may be held by Trade Bank as collateral for unfunded Credit
Extensions. All such proceeds (including any interest thereon) in excess of the
amounts required to reduce outstanding Credit Extensions and to collateralize
unfunded Credit Extensions shall be released by Trade Bank and remitted to
Borrower. Trade Bank shall have no obligation to Borrower or any creditor of
Borrower to determine which portion, if any, of such insurance proceeds belongs
to Borrower or any creditor of Borrower, other than Trade Bank. If an Event of
Default shall then exist and be continuing, Trade Bank shall be entitled to
apply all proceeds of insurance that Borrower may otherwise be entitled to
reduce the Credit Extensions and/or to collateralize unfunded Credit Extensions.
If Borrower fails to provide or pay for any insurance, Trade Bank may, but is
not obligated to, obtain the insurance at Borrower's expense.
4.7 FURTHER ASSURANCES. At Trade Bank's request and in form and substance
satisfactory to Trade Bank, execute all documents and take all such actions at
Borrower's expense as Trade Bank may deem reasonable necessary or useful to
perfect and maintain Trade Bank's perfected security interest in the Collateral
and in order to fully consummate all of the transactions contemplated by the
Loan Documents.
V. NEGATIVE COVENANTS
Borrower covenants that so long as Trade Bank remains committed to make any
Credit Extensions to Borrower and until all Obligations and Credit Extensions
have been paid, Borrower will not:
5.1 MERGE OR CONSOLIDATION, TRANSFER OF ASSETS. Merge into or consolidate
with any other entity; make any substantial change in the nature of Borrower's
business as conducted as of the date hereof; acquire all or substantially all of
the assets of any other entity; nor sell, lease, transfer or otherwise dispose
of all or a substantial or material portion of Borrower's assets except in the
ordinary course of its business.
5.2 LIENS. Except for Permitted Liens, mortgage, pledge, grant or permit to
exist a security interest in, or lien upon, all or any portion of Borrower's
assets now owned or hereafter acquired.
5.3 USE OF PROCEEDS. Borrower will not use the proceeds of any Credit
Extension except for the purposes, if any, specified for such Credit Extension
in the Supplement covering the Facility under which such Credit Extension is
made.
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VI. EVENTS OF DEFAULT AND REMEDIES
6.1 EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute and "Event of Default.":
(a) FAILURE TO MAKE PAYMENTS WHEN DUE. Borrower's failure to
pay principal, interest, fees or other amounts when due
under any Loan Document.
(b) FAILURE TO PERFORM OBLIGATIONS. Any failure by Borrower
to comply with any covenant or obligation in this
Agreement or in any Loan Document (other than those
referred to in subsection (a) above), and such default
shall continue for a period of twenty calendar days from
the earlier of (i) Borrowers failure to notify Trade
Bank of such Event of Default pursuant to Section 4.2(a)
above, or (ii) Trade Bank's notice to Borrower of such
Event of Default.
(c) UNTRUE OR MISLEADING WARRANTY OR STATEMENT. Any
warranty, representation, financial statement, report or
certificate made or delivered by Borrower under any Loan
Document is untrue or misleading in any material respect
when made or delivered.
(d) DEFAULTS UNDER OTHER LOAN DOCUMENTS. Any "Event of
Default" occurs under any other Loan Document;
any Guaranty is no longer in full force and effect
(or any claim thereof made by Guarantor) or any failure
of a Guarantor to comply with the provisions thereof; or
any breach of the provisions of any Subordination
Agreement or Intercreditor Agreement by any party other
than the Trade Bank.
(c) DEFAULTS UNDER OTHER AGREEMENTS OR INSTRUMENTS. Any
default in the payment or performance of any obligation,
or the occurrence of any event of default, under the terms
of any other agreement or instrument pursuant to which
Borrower, any Subsidiary or any Guarantor or general
partner of Borrower has incurred any debt or other material
liability to any person or entity.
(f) CONCEALING OR TRANSFERRING PROPERTY. Borrower conceals,
removes or transfers any part of its property with intent
to hinder, delay or defraud its creditors, or makes or
suffers any transfer of any of its property which may be
fraudulent under any bankruptcy, fraudulent conveyance or
similar law.
(g) JUDGEMENTS AND LEVIES AGAINST BORROWER. The filing of a
notice of judgement lien against Borrower, or the
recording of any abstract of judgement against Borrower,
in any county in which Borrower has an interest in
real property, or the service of a notice of levy and/or
of a writ of attachment or execution, or other like
process, against the assets of Borrower, or the entry of
a judgement against Borrower.
(h) EVENT OR CONDITION IMPAIRING PAYMENT OR PERFORMANCE. Any
event occurs or condition arises which Trade Bank in good
faith believes impairs or is substantially likely to
impair the prospect of payment or performance by Borrower
of the Obligations, including, but not limited to any
material adverse change in Borrower's financial condition,
business or prospects.
(i) VOLUNTARY INSOLVENCY. Borrower, any Subsidiary or any
Guarantor (i) becomes insolvent, (ii) suffers or consents
to or applies for the appointment of a receiver, trustee,
custodian or liquidator of itself or any of its property,
(iii) generally fails to pay its debts as they become due,
(iv) makes a general assignment for the benefit of
creditors, or (v) files a voluntary petition in bankruptcy,
or seeks reorganization, in order to effect a plan or
other arrangement with creditors or any other relief under
the Bankruptcy Reform Act, Title 11 of the United States
Code, as amended or recodified from time to time
("Bankruptcy Code"), or under any state or Federal
law granting relief to debtors, whether now or hereafter
in effect.
(j) INVOLUNTARY INSOLVENCY. Any involuntary petition or
proceeding pursuant to the Bankruptcy Code or any other
applicable state or federal law relating to bankruptcy,
reorganization or other relief for debtors is filed or
commenced against Borrower, any Subsidiary or Guarantor,
or (b) have an order for relief entered against it by any
court of competent jurisdiction under the Bankruptcy Code
or any other applicable state or federal law relating to
bankruptcy, reorganization or other relief for debtors.
(k) CHANGE IN OWNERSHIP. Any change in the ownership of
Borrower, any general partner of Borrower or any Guarantor
which the Trade Bank determines, in its sole discretion,
may adversely affect the creditworthiness of Borrower or
credit support for the Obligations.
6.2 REMEDIES. Upon the occurrence of any Event of Default, or at any
time thereafter, Trade Bank, at its option, and without notice or demand of any
kind (all of which are hereby expressly waived by Borrower), may do any one or
more of the following: (a) terminate Trade Bank's obligation to make Credit
Extensions or to make available to Borrower the Facilities or other financial
accommodations; (b) accelerate and declare all or any part of the Obligations
to be immediately due, payable, and performable, notwithstanding any deferred
or installment payments allowed by any instrument evidencing or relating to any
Credit
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Extension; and/or (c) exercise all its rights, powers and remedies available
under the Loan Documents, or accorded by law, including, but not limited to,
the right to resort to any or all Collateral or other security for any of the
Obligations and to exercise any or all of the rights of a beneficiary or
secured party pursuant to applicable law. Notwithstanding the provisions in
the foregoing sentence, if an Event of Default set out in subsections (i) and
(j) of Section 6.1 above shall occur, then all the remedies specified in the
preceding sentence shall automatically take effect without notice or demand of
any kind (all of which are hereby expressly waived by Borrower) with respect to
any and all Obligations which are not supported by an Eximbank guarantee or are
not insured by Eximbank. All rights, powers and remedies of Trade Bank may be
exercised at any time by Trade Bank and from time to time after the occurrence
of an Event of Default, are cumulative and not exclusive, and shall be in
addition to any other rights, powers or remedies provided by law or equity.
VII. GENERAL PROVISIONS
7.1 NOTICES. All notices to be given under this Agreement shall be
in writing and shall be given personally or by regular first-class mail, by
certified mail return receipt requested, by a private delivery service which
obtains a signed receipt, or by facsimile transmission addressed to Trade Bank
or Borrower at the address indicated after their signature to this Agreement,
or at any other address designated in writing by one party to the other party.
Trade Bank is hereby authorized by Borrower to act on such instructions or
notices sent by facsimile transmission or telecommunications device which Trade
Bank believes come from Borrower. All notices shall be deemed to have been
given upon delivery, in the case of notices personally delivered or delivered
by private delivery service, upon the expiration of 3 calendar days following
the deposit of the notices in the United States mail, in the case of notices
deposited in the United States mail with postage prepaid, or upon receipt, in
the case of notices sent by facsimile transmission.
7.2 WAIVERS. No delay or failure of Trade Bank in exercising any
right, power or remedy under any of the Loan Documents shall affect or operate
as a waiver of such right, power or remedy; nor shall any single or partial
exercise of any such right, power or remedy preclude, waive or otherwise
affect any other or further exercise thereof or the exercise of any other right,
power or remedy. Any waiver, consent or approval by Trade Bank under any of
the Loan Documents must be in writing and shall be effective only to the extent
set out in such writing.
7.3 BENEFIT OF AGREEMENT. The provisions of the Loan Documents
shall be binding upon and inure to the benefit of the respective successors,
assigns, heirs, executors, administrators, beneficiaries and legal
representatives of Borrower and Trade Bank; provided, however, that Borrower may
not assign or transfer any of its rights under any Loan Document without the
prior written consent of Trade Bank, and any prohibited assignment shall be
void. No consent by Trade Bank to any assignment shall release Borrower from
its liability for the Obligations unless such release is specifically given by
Trade Bank to Borrower in writing. Trade Bank reserves the right to sell,
assign, transfer, negotiate or grant participations in all or any part of, or
any interest in, Trade Bank's rights and benefits under each of the Loan
Documents. In connection therewith, Trade Bank may disclose any information
relating to the Facilities, Borrower or its business, or any Guarantor or its
business.
7.4 JOINT AND SEVERAL LIABILITY. If Borrower consists of more
than one person or entity, the liability of each of them shall be joint and
several, and the compromise of any claim with, or the release of, any one such
Borrower shall not constitute a compromise with, or a release of, any other
such Borrower.
7.5 NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of Borrower and Trade Bank and
their respective permitted successors and assigns, and no other person or
entity shall be a third party beneficiary of, or have any direct or indirect
cause of action or claim in connection with, any of the Loan Documents to which
it is not a party.
7.6 GOVERNING LAW AND JURISDICTION. This Agreement shall, unless
provided differently in any Loan Document, be governed by, and be construed in
accordance with, the internal laws of the State of California, except to the
extent Trade Bank has greater rights or remedies under federal law whether as a
national bank or otherwise. Borrower and Trade Bank (a) agree that all actions
and proceedings relating directly or indirectly to this Agreement shall be
litigated in courts located within California; (b) consent to the jurisdiction
of any such court and consent to service of process in any such action or
proceeding by personal delivery or any other method permitted by law; and (c)
waive any and all rights Borrower may have to object to the jurisdiction of any
such court or to transfer or change the venue of any such action or proceeding.
7.7 MUTUAL WAIVER OF JURY TRIAL. Borrower and Trade Bank each
hereby waive the right to trial by jury in any action or proceeding based upon,
arising out of, or in any way relating to, (a) any Loan Document, (b) any other
present or future agreement, instrument or document between Trade Bank and
Borrower, or (c) any conduct, act or omission of Trade Bank or Borrower or any
of their directors, officers, employees, agents, attorneys or any other persons
or entities affiliated with Trade Bank or Borrower, which waiver will apply in
all of the mentioned cases whether the case is a contract or tort case or any
other case. Borrower represents and warrants that no officer, representative
or agent of Trade Bank has represented, expressly or otherwise, that Trade Bank
would not seek to enforce this waiver of jury trial.
7.8 SEVERABILITY. Should any provision of any Loan Document be
prohibited by, or invalid under applicable law, or held by any court of
competent jurisdiction to be void or unenforceable, such defect shall not
affect, the validity of the other provisions of the Loan Documents.
7.9 ENTIRE AGREEMENT AMENDMENTS. This Agreement and the other
Loan Documents are the final, entire and complete agreement between Borrower
and Trade Bank concerning the Credit Extensions and Facilities; supersede all
prior and
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contemporaneous negotiations and oral representations and agreements. There
are no oral understandings, representations or agreements between the parties
concerning the Credit Extensions or the Facilities which are not set forth in
the Loan Documents. This Agreement and the Supplements may not be waived,
amended or superseded except in a writing executed by Borrower and Trade Bank.
7.10 COLLECTION OF PAYMENTS. Unless otherwise specified in any Loan
Document, other than this Agreement or any Note, all principal, interest and
any fees due to Trade Bank by Borrower under this Agreement, any Addendum, any
Supplement, any Facility Document, any Collateral Document or any Note, will be
paid by Trade Bank having Xxxxx Fargo debit any of Borrower's accounts with
Xxxxx Fargo and forwarding such amount debited to Trade Bank, without
presentment, protest, demand for reimbursement or payment, notice of dishonor
or any other notice whatsoever, all of which are hereby expressly waived by
Borrower. Such debit will be made at the time principal, interest or any fee
is due to Trade Bank pursuant to this Agreement, any Addendum, any Supplement,
any Facility Document, any Collateral Document or any Note.
7.11 COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower will reimburse
Trade Bank for all costs and expenses in connection with field audits or
collateral examinations and property appraisal reports as may be deemed
necessary to Trade Bank in its sole discretion, the preparation, execution,
delivery, filing, recording, analysis, amending and administration of any of
the Loan Documents, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Trade Bank's in-house counsel),
incurred by Trade Bank in exercising any right, power, privilege or remedy
conferred by this Agreement or in the enforcement thereof, including any of the
foregoing incurred in connection with any bankruptcy proceeding relating to
Borrower or the valuation of the Collateral and/or Proceeds, including without
limitation, the seeking of relief from or modification of the automatic stay or
the negotiation and drafting of a cash collateral order. All of the foregoing
shall be paid by Borrower with interest at a rate per annum equal to the
greater of ten percent (10%) or the Prime Rate in effect from time to time.
The "Prime Rate" is a base rate that Xxxxx Fargo Bank, N.A. from time to time
establishes and which serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto. Borrower's
failure to pay costs, fees and expenses incurred, within 30 days from Trade
Bank's demand, will cause such costs, fees and expenses to be added to
principal of the loan and will bear interest thereafter until paid at the rate
stated above.
VIII. DEFINITIONS
8.1 "AGREEMENT" means this Agreement and the Addendum attached
hereto, as corrected or modified from time to time by Trade Bank and Borrower.
8.2 "BANKING DAY" means each day except Saturday, Sunday and a day
specified as a holiday by federal or California statute.
8.3 "CLOSING DATE" means the date on which the first Credit
Extension is made.
8.4 "COLLATERAL" means all property securing the Obligations.
8.5 "COLLATERAL DOCUMENTS" means those security agreement(s),
deed(s) of trust, guarantee(s), subordination agreement(s), intercreditor
agreement(s), and other credit support documents and instruments required by
the Trade Bank to effect the collateral and credit support requirements set
forth in the Supplement with respect to the Facilities.
8.6 "CREDIT EXTENSION" means each extension of credit under the
Facilities (whether funded or unfunded), including, but not limited to, (a) the
issuance of sight or usance commercial letters of credit supported by back-up
letters of credit, (b) the issuance of standby letters of credit, (c) the
issuance of shipping guarantees, (d) the making of loans against imports for
letters of credit, (d) the making of clean import loans outside letters of
credit; (e) the making of advances against export orders, (f) the making of
advances against outgoing collections; (g) the making of revolving credit
working capital loans, (h) the making of term loans, (i) the discounting of
drafts or foreign receivables with recourse, (j) the discounting or purchasing
of promissory notes with recourse to Borrower, and (k) the entry into foreign
exchange contracts.
8.7 "CREDIT LIMIT" means, with respect to any Facility, the amount
specified under the column labeled "Credit Limit" in the Supplement for that
Facility.
8.8 "CREDIT SUBLIMIT" means, with respect to any Subfacility, the
amount specified after the name of that Subfacility under the column labeled
"Credit Sublimit" in the Supplement for the related Facility.
8.9 "DOLLARS" and "S" means United States dollars.
8.10 "EXIMBANK" means the Export-Import Bank of the United States.
8.11 "FACILITY DOCUMENTS" means, with respect to any Facility, those
documents specified in the Supplement for that Facility, and any other
documents customarily required by Trade Bank for such Facility.
8.12 "FACILITY TERMINATION DATE" means, with respect to any
Facility, the date specified in the Supplement for that Facility after which no
further Credit Extensions will be made under that Facility.
8.13 "GAAP" means generally accepted accounting principles, which
are applicable to the circumstances, as of the date of determination, set out in
the opinions and pronouncements of the Accounting Principles Board and the
America Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession.
Page 7 of 8
9
8.14 "LOAN DOCUMENTS" means this Agreement, the Addenda, the
Supplements, the Facility Documents and the Collateral Documents.
8.15 "NOTE" has the meaning specified in Section 3.1(b)(2) above.
8.16 "OBLIGATIONS" means (a) the obligation of Borrower to pay
principal, interest and fees on all funded Credit Extensions and fees on all
unfunded Credit Extensions, and (b) the obligation of Borrower to pay and
perform when due all other indebtedness, liabilities, obligations and covenants
required under the Loan Documents.
8.17 "PERMITTED LIENS" shall have the meaning provided in the
Addendum.
8.18 "PERSON" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and
governments and agencies and political subdivisions thereof.
8.19 "PRIME RATE" means the rate most recently announced by Xxxxx
Fargo at its principal office in San Francisco, California as its "PRIME RATE",
with the understanding that the Prime Rate is one of Xxxxx Fargo's base rates
and serves as the basis upon which effective cases of interest are calculated
for those loans making reference thereto, and is evidenced by the recording
thereof after its announcement in such internal publication or publications as
Xxxxx Fargo may designate. Any change in an interest rate resulting from a
change in the Prime Rate shall become effective as of 12:01 a.m. of the Banking
Day on which each change in the Prime Rate is announced by Xxxxx Fargo.
8.20 "SUBSIDIARY" means (i) any corporation at least the majority of
whose securities having ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) are at the time owned by Borrower and/or one or more Subsidiaries,
and (ii) any joint venture or partnership in which Borrower and/or one or more
Subsidiaries has a majority interest.
8.21 "XXXXX FARGO" means Xxxxx Fargo Bank, N.A.
Borrower and Trade Bank have caused this Agreement to be executed by
their duly authorized officers or representatives on the date specified below.
"BORROWER"
JALATE LIMITED, INC.
By: [SIG]
--------------------------
Title: V.P. Finance & C.F.O.
--------------------------
Borrower's Address:
------------------
0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
"LENDER"
XXXXX FARGO HSBC TRADE BANK,
NATIONAL ASSOCIATION
By: [SIG]
-----------------------------
Xxxx Xxxxx
Title: Assistant Vice President
Lender's Address:
----------------
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Page 8 of 8
10
EXHIBIT A
XXXXX FARGO HSBC TRADE BANK ADDENDUM TO CREDIT AGREEMENT
===============================================================================
THIS ADDENDUM IS ATTACHED TO THE CREDIT AGREEMENT ("CREDIT AGREEMENT") BETWEEN
XXXXX FARGO HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: JALATE LIMITED, INC.
ADDITIONAL AFFIRMATIVE COVENANTS
The following covenants are part of Article IV of the Credit Agreement:
REPORTS. Borrower will furnish the following information or deliver the
following reports to Trade Bank at the times indicated below:
- ANNUAL FINANCIAL STATEMENTS. Not later than 90 calendar days after and
as of the end of each of Borrower's fiscal years, an annual audited financial
statement of Borrower prepared by a certified public accountant acceptable to
Trade Bank and prepared in accordance with GAAP, to include balance sheet,
income statement, statement of cash flow, and source and application of funds
statement.
- ANNUAL FORM 10-K STATEMENTS. Not later than 90 calendar days after and
as of the end of each of Borrower's fiscal years, a 10-K Statement.
- QUARTERLY FORM 10-Q STATEMENTS. Not later than 60 calendar days after
and as of the end of each of Borrower's fiscal quarters, a 10-Q Statement.
- monthly FINANCIAL STATEMENTS. Not later than 30 calendar days after
and as of the end of each calendar month, a financial statement of Borrower
prepared by Borrower, to include balance sheet and income statement.
CERTIFICATE OF ACCURACY AND NO EVENT OF DEFAULT. At the time
each financial statement of Borrower required above is delivered to Trade Bank,
a certificate of the president or chief financial officer of Borrower that said
financial statements are accurate and that there exists no Event of Default
under the Agreement nor any condition, act or event which with the giving of
notice or the passage of time or both would constitute an Event of Default.
- INVENTORY LIST: Not later than 30 calendar days after and as of the
end of each of Borrower's fiscal quarters, an inventory report showing the
types, locations and unit or dollar values of all the inventory collateral,
starting 12/31/96.
- INSURANCE: Borrower will maintain in full force and effect insurance
coverage on all Borrower's property, including, but not limited to, the
following types of insurance coverage:
policies of fire insurance
marine cargo insurance
business personal property insurance
All the insurance referred to in the preceding sentence must be in
form, substance and amounts, and issued by companies, satisfactory to Trade
Bank, and cover risks required by Trade Bank and contain loss payable
endorsements in favor of Trade Bank.
FINANCIAL COVENANTS. Borrower will maintain the following (if Borrower has any
Subsidiaries which must be consolidated under GAAP, the following applies to
borrower and the consolidated Subsidiaries):
- CURRENT RATIO. Not at any time less than 1.5 to 1.0 ("CURRENT RATIO"
means total current assets divided by total current liabilities, and "CURRENT
ASSETS" and "CURRENT LIABILITIES" have the meanings given to them in accordance
with GAAP; provided, however, that "current liabilities" will include
indebtedness which is subordinated to the Obligations to Trade Bank under a
subordination agreement in form and substance acceptable to Trade Bank or by
subordination language acceptable to Trade Bank in the instrument evidencing
such indebtedness.)
- WORKING CAPITAL. Not at any time less than $3,500,000. ("WORKING
CAPITAL" means total current assets minus total current liabilities; provided,
however, that "current liabilities" will include indebtedness which is
subordinated to the Obligations to Trade Bank under a subordination agreement
in form and substance acceptable to Trade Bank or by subordination language
acceptable to Trade Bank in the instrument evidencing such
indebtedness.)
- TANGIBLE NET WORTH. Not at any time less than $4,750,000. ("TANGIBLE
NET WORTH" means the excess of total assets over total liabilities determined
in accordance with GAAP, (a) excluding, however, in determining total assets
(i) all assets which would be classified as intangible assets under GAAP,
including, but not limited to, goodwill, licenses, patents, trademarks, trade
names, copyrights, capitalized software and organizational costs, licenses and
franchises, and (ii) assets which Trade Bank determines in its business
judgment would not be available or would be of relatively small value in a
liquidation of Borrower's business,
Page 1 of 2
11
including, but not limited to, prepaid expenses, loans to officers or
affiliates and other items, and (b) including, in determining total
liabilities, indebtedness which is subordinated to the Obligations to
Trade Bank.)
- TOTAL LIABILITIES DIVIDED BY TANGIBLE NET WORTH. Not at any time
greater than 1.25 to 1.0. ("Tangible Net Worth" has the meaning given
to it above, and "Total Liabilities" includes indebtedness which is
subordinated to the Obligations to Trade Bank under a subordination
agreement in form and substance acceptable to Trade Bank or by
subordination language acceptable to Trade Bank in the instrument
evidencing such indebtedness.)
- QUARTERLY PRE-TAX PROFIT. Not less than $1.00 on a quarterly basis
(determined as of each 1st, 2nd and 3rd fiscal quarter end).
- ANNUAL PRE-TAX PROFIT. Not less than $1.00 on an annual basis
(determined for a full 12-month period).
ADDITIONAL NEGATIVE COVENANTS
The following covenants are part of Article V of the Credit Agreement (Borrower
shall also cause any Subsidiary to comply with the following covenants):
- USE OF PROCEEDS. Borrower will not use the proceeds of any Credit
Extension except for the purposes, if any, specified for such Credit
Extension in the Supplement covering the Facility under which such
Credit Extension is made.
- LIENS. Borrower will not create or permit any liens, charges, security
interests, encumbrances or adverse claims with respect to any of its
property or other assets except for the following "PERMITTED LIENS":
purchase money security interests in specific items of Borrower's
equipment;
leases of specific items of Borrower's equipment;
liens for Borrower's taxes not yet payable;
additional security interests and liens consented to in writing by
Trade Bank in its sole discretion;
Congress Xxxxxxx Corporation (Western) lien on Borrower's accounts
receivable;
- ACQUISITIONS OF ASSETS. Borrower will not acquire any assets or enter
into any other transaction outside the ordinary course of Borrower's
business.
- LOANS AND INVESTMENTS. Borrower will not make any loans or advances to,
or investments in, any person or entity except for accounts receivable
created in the ordinary course of Borrower's business.
- INDEBTEDNESS FOR BORROWED MONEY. Borrower will not incur any
indebtedness for borrowed money, except to Trade Bank and except for
indebtedness subordinated to the Obligations by an instrument or
agreement in form acceptable to Trade Bank, and to Congress Xxxxxxx
Corporation (Western).
- GUARANTEES. Borrower will not guarantee or otherwise become liable
with respect to the obligations of any other person or entity, except
for endorsement of instruments for deposit into Borrower's account in
the ordinary course of Borrower's business.
- DIVIDENDS AND DISTRIBUTIONS OF CAPITAL OF CORPORATION. If Borrower is a
corporation, Borrower will not pay or declare any dividends or make any
distribution of capital on Borrower's stock (except for dividends
payable solely in stock of Borrower).
- STOCK REDEMPTIONS. Borrower will not redeem, retire, purchase or
otherwise acquire, directly or indirectly, any of Borrower's stock.
- INVESTMENTS IN, OR ACQUISITIONS OF, SUBSIDIARIES. Borrower will not
make any investments in, or form or acquire, any subsidiaries.
- CAPITAL EXPENDITURES. Borrower shall not, without the prior written
consent of Trade Bank, make any capital expenditures in any fiscal year,
in excess of $250,000.
- COMPENSATION. Borrower will not, without the prior written consent of
Trade Bank, pay, accrue or obligate itself to pay, directly or
indirectly, any salaries, bonuses or other compensation or fees to its
officers, directors, shareholders or partners, or any members of their
immediate families, in excess of $2,500,000.
BY SIGNING HERE BORROWER AGREES TO THE DESIGNATED PROVISIONS IN THIS ADDENDUM:
[SIG]
---------------------------------------
(SIGNATURE)
PAGE 2 OF 2
12
EXHIBIT B
XXXXX FARGO HSBC TRADE BANK SIGHT COMMERCIAL LETTERS OF CREDIT SUPPLEMENT
===============================================================================
THIS SUPPLEMENT IS AN INTEGRAL PART OF THE CREDIT AGREEMENT BETWEEN XXXXX FARGO
HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: JALATE LIMITED, INC.
FACILITY TERMINATION DATE: MAY 31, 1997
CREDIT LIMIT FOR THIS SIGHT COMMERCIAL CREDITS FACILITY AND SUBLIMITS: CREDIT
LIMIT: $6,000,000
CREDIT SUBLIMITS
---------------------------
- GOODS CONSIGNED TO, OR CONTROLLED BY, TRADE BANK $6,000,000
THE AGGREGATE AMOUNT OF CREDIT EXTENSIONS OUTSTANDING UNDER THIS FACILITY AND
THE FOLLOWING OTHER FACILITIES MAY NOT AT ANY ONE TIME EXCEED $6,000,000:
1. LOANS UNDER THE LOANS AGAINST IMPORTS FOR L/C REIMBURSEMENTS SUPPLEMENT
2. GUARANTEES UNDER THE SHIPPING GUARANTEES SUPPLEMENT
FACILITY DESCRIPTION:
Trade Bank will issue sight commercial letters of credit (each a "Sight
Commercial Credit") for the account of Borrower as indicated under the heading
"Facility Purpose" below. Subject to the credit sublimits specified above,
these Sight Commercial Credits will be transferable or not transferable and have
the goods related to them consigned to or not consigned to, or controlled by or
not controlled by, Trade Bank. The Facility Credit Limit specified above refers
to the aggregate undrawn amount of all Sight Commercial Credits which may be at
any one time outstanding under this Facility together with the aggregate amount
of drafts drawn under such Sight Commercial Credits which have not been
reimbursed as provided below at such time. The Facility Credit Sublimits
specified above refer to the aggregate undrawn amount of all Sight Commercial
Credits which may be at any one time outstanding under each subcategory under
this Facility together with the aggregate amount of all drafts drawn under such
Sight Commercial Credits which have not been reimbursed as provided below at
such time.
FACILITY PURPOSE: The Facility may only be used for the following purpose(s):
To assist Borrower in its business of importing, manufacturing and wholesaling
of women's and children's apparel.
FACILITY DOCUMENTS:
BEFORE THE FIRST SIGHT COMMERCIAL CREDIT IS ISSUED:
Trade Bank's standard form Continuing Commercial Letter of Credit
Agreement (Form TB 020)
BEFORE EACH SIGHT COMMERCIAL CREDIT IS ISSUED:
Trade Bank's standard form Application For Commercial Letter of Credit
(Form TB 002)
BEFORE EACH SIGHT COMMERCIAL CREDIT IS AMENDED:
Trade Bank's standard form Application For Amendment To Letter of
Credit (Form TB 010)
SUBFACILITY DOCUMENTS:
- GOODS CONSIGNED TO, OR CONTROLLED BY, TRADE BANK: See Exhibit C-
Collateral/Credit Support Document.
TERM: No Sight Commercial Credit may expire more than 120 calendar days after
the date it is issued.
REIMBURSEMENTS FOR DRAWINGS:
The amount of each drawing paid by Trade Bank under a Sight Commercial Credit
will be reimbursed to Trade Bank as follows:
- By Trade Bank having Xxxxx Fargo Bank, N.A. debit any of Borrower's
accounts with Xxxxx Fargo Bank, N.A. and forwarding such amount debited
to Trade Bank.
- Immediately on demand of Trade Bank.
- By treating such amount drawn as an advance to Borrower to be repaid at
the end of any term specified by Trade Bank to Borrower in writing.
Page 1 of 2
13
FEES: The following fees will apply to the Sight Commercial Credits:
- FACILITY FEE: Borrower will pay the following Facility Fee to Trade
Bank before this Facility is made available to Borrower: $7,500.
- FACILITY FEES/FEES FOR INCREASING CREDIT AMOUNTS OR EXTENDING EXPIRATION
DATES: (Minimum $50) 1/8 of 1% per annum for every 120-day period or
fraction thereof of the term of each Sight Commercial Credit on the
amount of each Sight Commercial Credit and of any increase in such
amount.
PAYABLE: At the time each Sight Commercial Credit is issued or
increased and at the time the expiration date of any Sight Commercial
Credit is extended.
- AMENDMENT FEES: (Minimum $50)
$50 for each amendment, unless the amendment is an increase in the Sight
Commercial Credit amount or an extension of the expiration date, in
which case the Issuance Fee above will substitute for any Amendment Fee.
PAYABLE: At the time each amendment is issued.
- NEGOTIATION/PAYMENT/EXAMINATION FEES: (Minimum $75) 1/8 of 1% of the
face amount of each drawing under each Sight Commercial Credit.
PAYABLE: At the time any draft or other documents are negotiated, paid
or examined.
INTEREST RATE:
All drawings under Sight Commercial Credits not reimbursed on the day they are
paid by Trade Bank will bear interest at the following rate from the date they
are paid by Trade Bank to the date such payment is fully reimbursed;
- PRIME RATE: The Prime Rate plus 5% per annum.
- INTEREST PAYMENT DATES: Interest on unreimbursed drawings under Sight
Commercial Credits will be paid on the date the unreimbursed drawing is
fully reimbursed.
COLLATERAL/CREDIT SUPPORT DOCUMENTS: See Exhibit C - Collateral/Credit
Support Document.
BY INITIALING HERE BORROWER AGREES TO ALL THE TERMS OF THIS SUPPLEMENT:_________
Page 2 of 2
14
EXHIBIT B
LOANS AGAINST IMPORTS
XXXXX FARGO HSBC TRADE BANK FOR LETTER OF CREDIT REIMBURSEMENT SUPPLEMENT
------------------------------------------------------------------------------
THIS SUPPLEMENT IS AN INTEGRAL PART OF THE CREDIT AGREEMENT BETWEEN XXXXX
FARGO HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: Jalate Limited, Inc.
FACILITY TERMINATION DATE: May 31, 1997
CREDIT LIMIT FOR THIS LOANS AGAINST IMPORTS FACILITY AND SUBLIMITS: Credit
Limit: $2,000,000
Credit Sublimits
-------------------------------
- Supported by Guarantee or Insurance or
Other Collateral $2,000,000
Floating Interest Rate
No Borrowing Base
The aggregate amount Credit Extensions outstanding under this Facility and the
following other Facilities may not at any one time exceed $2,000,000:
1. Guarantees under the Shipping Guarantees Supplement
FACILITY DESCRIPTION
Trade Bank will make loans to Borrower solely for the purpose of financing
Borrower's obligations to reimburse Trade Bank for amounts paid by Trade Bank
under sight and usance Commercial Credits issued by Trade Bank for the account
of Borrower in connection with Borrower's imports. Loans made by Trade Bank
under this Facility cannot be used by Borrower to repay outstanding clean
import loans that have matured. Subject to the credit sublimits specified
above, these loans may be supported by (i) a standby letter of credit in favor
of Trade Bank or (ii) a guarantee or other collateral.
FACILITY DOCUMENTS: Promissory Note
SubFacility Documents:
- Supported by Accounts Receivable, Inventory or Other Collateral:
See Exhibit C - Collateral/Credit Support Document.
TERM: Each loan made under this Facility must be repaid within 60 calendar
days after it is made.
FEES: The following fees will apply to this Facility:
- FACILITY FEE: Borrower will pay the following Facility Fee to Trade
Bank before this Facility is made available to Borrower: $7,500.
INTEREST RATE: All advances under this Facility will bear interest at the
following rate:
Prime Rate Provisions: So long as Borrower's Tangible New Worth (as defined in
Exhibit A Addendum to Credit Agreement), as reported in Borrower's current
monthly financial statement as required in Exhibit A, Addendum to Credit
Agreement, is less than $6,250,000, all loans made under this Facility shall
bear interest per annum at the Prime Rate plus 0.75% effective as of the date of
Borrower's current monthly financial statement. If at any time prior to the
Facility Termination Date (as defined above), Borrower's Tangible Net Worth, as
reported in Borrower's monthly financial statement, is $6,250,000 or more, but
less than $7,000,000, all loans made under this Facility shall bear interest per
annum at the Prime Rate plus 0.50%, effective as of the date of Borrower's
current monthly financial statement. If at any time prior to the Facility
Termination Date, Borrower's Tangible Net Worth is equal to or greater that
$7,000,000, all loans made under this Facility shall bear interest per annum at
the Prime Rate plus 0.25%. All adjustments to the interest rate applicable to
the Advances pursuant to the foregoing shall take effect as of the date of the
financial statement entitling Borrower to such adjustment. Notwithstanding the
foregoing, Borrower acknowledges and agrees that no adjustment in the interest
rate shall become effective if any Event of Default (after giving effect to any
available grace and/or cure periods) exists as of the date of the delivery of
the financial statements entitling Borrower to such adjustment, and such
adjustment shall be suspended and shall only become effective when Borrower
shall have cured such Event of Default to Trade Bank's satisfaction, or Trade
Bank shall have permanently waived such Event of Default. Notwithstanding any
of the foregoing, any overdue payments of principal (and interest to the extent
permitted by law) shall bear interest at a per annum floating rate equal to the
Prime Rate plus 5.0%.
Interest Payment Dates: Interest on the outstanding advances under this
Facility will be paid at the maturity of each advance.
PREPAYMENTS: Prepayments of the outstanding loans under this Facility are
permitted in any amounts.
COLLATERAL/CREDIT SUPPORT DOCUMENTS: See Exhibit C- Collateral/Credit Support
Document.
BY INITIALING HERE BORROWER AGREES TO ALL THE TERMS OF THIS SUPPLEMENT:
Page 1 of 1
15
EXHIBIT B
XXXXX FARGO HSBC TRADE BANK SHIPPING GUARANTEES SUPPLEMENT
----------------------------------------------------------------------------
THIS SUPPLEMENT IS AN INTEGRAL PART OF THE CREDIT AGREEMENT BETWEEN XXXXX FARGO
HSBC TRADE BANK AND THE FOLLOWING BORROWER:
NAME OF BORROWER: Jalate Limited, Inc.
FACILITY TERMINATION DATE: May 31, 1997
CREDIT LIMIT FOR THIS SHIPPING GUARANTEES FACILITY AND SUBLIMITS: Credit
Limit: $500,000
CREDIT SUBLIMITS
-------------------------------
- SHIPPING GUARANTEE FACILITY $500,000
The aggregate amount Credit Extensions outstanding under this Facility and the
following other Facilities may not at any one time exceed $2,000,000.
1. Loans under the Loans Against Imports for L/C Reimbursements Supplement
FACILITY DESCRIPTION AND PURPOSE:
Trade Bank will issue shipping guarantees for the account of Borrower. These
shipping guarantees will be undertakings for delivery of cargo without surrender
of bills of lading, or any other undertakings, agreements, guarantees,
indemnities, releases, bonds, letters, documents or authorizations to or in
favor of a carrier or other person or entity in order to permit delivery to
Borrower of property. The Credit Limit specified above for this Facility refers
to the aggregate amount of all shipping guarantees which may be outstanding at
any one time.
FACILITY DOCUMENTS:
Indemnity For Undertakings In Connection With Deliveries of Goods or Issuance
of Duplicate Bills of Lading.
TERM:
No shipping guarantee issued by Trade Bank for Borrower will expire more than
90 calendar days after the date it is issued.
REIMBURSEMENTS FOR PAYMENTS UNDER GUARANTEES:
The amount of each payment made by Trade Bank under shipping guarantees issued
by Trade Bank for Borrower will be reimbursed to Trade Bank as follows:
- By Trade Bank having Xxxxx Fargo Bank, N.A. debit any of Borrower's accounts
with Xxxxx Fargo Bank, N.A. and forwarding such amount debited to Trade Bank.
- Immediately on demand of Trade Bank.
- By treating such amount drawn as an advance to Borrower to be repaid at the
end of any term specified by Trade Bank to Borrower in writing.
FEES: The following fees will apply to this Facility and the issuance of each
shipping guarantee:
- Facility Fee: Borrower will pay the following Facility Fee to Trade Bank
before this Facility is made available to Borrower: $7,500.
- Issuance Fee: (Minimum $75).
Payable: At the time each shipping guarantee is issued.
INTEREST RATE:
All payments made by Trade Bank under shipping guarantees issued for Borrower
which are not reimbursed on the day they are made by Trade Bank will bear
interest at the following rate from the date they are made to the date such
payment is fully reimbursed:
- Prime Rate: The Prime Rate plus 5% per annum.
PAGE 1 OF 2
16
- Interest Payment Dates: Interest on payments made by Trade Bank under this
Facility which are not reimbursed on the day the are made will be paid on the
date the payment is fully reimbursed.
PREPAYMENTS: Permitted in any amounts.
COLLATERAL/CREDIT SUPPORT DOCUMENTS: See Exhibit C - Collateral/Credit Support
Document.
BY INITIALING HERE BORROWER AGREES TO ALL THE TERMS OF THIS SUPPLEMENT:_______
Page 2 of 2
17
EXHIBIT C
XXXXX FARGO HSBC TRADE BANK COLLATERAL/CREDIT SUPPORT DOCUMENT
==============================================================================
* PERSONAL PROPERTY SECURITY FROM BORROWER:
First priority lien in the following assets of Borrower:
inventory
Second priority lien in the following assets of Borrower:
accounts receivable
COLLATERAL DOCUMENTS:
Security Agreement: Rights to Payment and Inventory
UCC-1 Financing Statement
UCC-3 Search
* INTERCREDITOR AGREEMENT: The creditor or creditors named below under
the heading "Collateral Documents" will enter into an intercreditor
arrangement with Trade Bank with respect to the Obligations under this
Facility.
COLLATERAL DOCUMENTS:
Intercreditor Agreement with Congress Xxxxxxx Corporation
(Western).
BY INITIALING HERE BORROWER AGREES TO ALL THE TERMS OF THE EXHIBIT:___________
Page 1 of 1
