CREDIT AGREEMENT
THIS AGREEMENT is entered into as of September 1, 1995, by and between
Optima Wheel, Inc., a California corporation ("Borrower"), and XXXXX FARGO
BANK, NATIONAL ASSOCIATION ("Bank").
RECITAL
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Borrower has requested from Bank the credit accommodations described below
(collectively, the "Credits"), and Bank has agreed to provide the Credits to
Borrower on the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Bank and Borrower hereby agree as follows:
ARTICLE I
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THE CREDITS
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SECTION 1.1. LINE OF CREDIT.
(a) LINE OF CREDIT. Subject to the terms and conditions of this
Agreement, Bank hereby agrees to make advances to Borrower from time to time up
to and including September 1, 1996, not to exceed at any time the aggregate
principal amount of Three Million Dollars ($3,000,000.00) ("Line of Credit"),
the proceeds of which shall be used for working capital. Borrower's obligation
to repay advances under the Line of Credit shall be evidenced by a promissory
note substantially in the form of Exhibit A attached
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hereto ("Line of Credit Note"), all terms of which are incorporated herein by
this reference.
(b) LIMITATION ON BORROWINGS. Outstanding borrowings under the Line of
Credit, to a maximum of the principal amount set forth above, shall not at any
time exceed an aggregate of eighty percent (80%) of Borrower's assigned
eligible accounts receivable, plus thirty percent (30%) of the value of
Borrower's eligible inventory (exclusive of work in process and inventory which
is obsolete, unsaleable or damaged), with value defined as lower of cost or
market value; provided however, that the outstanding principal balance of all
borrowings against Borrower's inventory shall not at any time exceed an
aggregate of One Million Dollars ($1,000,000.00). All of the foregoing shall
be determined by Bank upon receipt and review of all collateral reports
required hereunder and such other documents and collateral information as Bank
may from time to time require. Borrower acknowledges that said borrowing base
was established by Bank with the understanding that, among other items, the
aggregate of all returns, rebates, discounts, credits and allowances for the
immediately preceding three (3) months at all times shall be less than five
percent (5%) of Borrower's gross sales for said period. If such dilution of
Borrower's accounts for the immediately preceding three (3) months at any time
exceeds five percent (5%) of Borrower's gross sales for said period, or if
there at any time exists any other matters,
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events, conditions or contingencies which Bank reasonably believes may affect
payment of any portion of Borrower's accounts, Bank, in its sole discretion,
may reduce the foregoing advance rate against eligible accounts receivable to a
percentage appropriate to reflect such additional dilution and/or establish
additional reserves against Borrower's eligible accounts receivable.
As used herein, "eligible accounts receivable" shall consist solely of
trade accounts created in the ordinary course of Borrower's business, upon
which Borrower's right to receive payment is absolute and not contingent upon
the fulfillment of any condition whatsoever, and in which Bank has a perfected
security interest of first priority, and shall not include:
(i) any account which is past due more than twice Borrower's
standard selling terms;
(ii) that portion of any account for which there exists any right of
setoff, defense or discount (except regular discounts allowed in the ordinary
course of business to promote prompt payment) or for which any defense or
counterclaim has been asserted;
(iii) any account which represents an obligation of any state or
municipal government or of the United States government or any political
subdivision thereof (except accounts which represent obligations of the United
States government and for which Bank's forms N-138 and N-139 have been duly
executed and acknowledged);
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(iv) any account which represents an obligation of an account debtor
located in a foreign country, except to the extent any such account, in Bank's
determination, is supported by a letter of credit or insured under a policy of
foreign credit insurance, in each case in form, substance and issued by a party
acceptable to Bank;
(v) any account which arises from the sale or lease to
or performance of services for, or represents an obligation of, an employee,
affiliate, partner, member, parent or subsidiary of Borrower;
(vi) that portion of any account which represents interim or
progress xxxxxxxx or retention rights on the part of the account debtor;
(vii) any account which represents an obligation of any account
debtor when twenty percent (20%) or more of Borrower's accounts from such
account debtor are not eligible pursuant to (i) above;
(viii) that portion of any account from an account debtor which
represents the amount by which Borrower's total accounts from said account
debtor exceeds twenty-five percent (25%) of Borrower's total accounts;
(ix) any account deemed ineligible by Bank when Bank, in its sole
discretion, deems the creditworthiness or financial condition of the account
debtor, or the industry in which the
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account debtor is engaged, to be unsatisfactory.
SECTION 1.2. TERM LOAN I.
(a) TERM LOAN I. Bank has made a loan to Borrower in the original
principal amount of Five Hundred Thousand Dollars ($500,000.00) ("Term Loan
I"), on which the outstanding principal balance as of the date hereof is
$347,221.00. Borrower's obligation to repay Term Loan I is evidenced by a
promissory note substantially in the form of Exhibit B attached hereto ("Term
Note I"), all terms of which are incorporated herein by this reference.
Subject to the terms and conditions of this Agreement, Bank hereby confirms
that Term Loan I remains in full force and effect.
(b) REPAYMENT. The principal amount of Term Loan I shall be repaid in
accordance with the provisions of Term Note I.
(c) PREPAYMENT. Borrower may prepay principal on Term Loan I solely in
accordance with the provisions of Term Note I.
SECTION 1.3. TERM LOAN II.
(a) TERM LOAN II. Subject to the terms and conditions of this Agreement,
Bank hereby agrees to make a loan to Borrower in the principal amount of Two
Hundred Five Thousand Dollars ($205,000.00) ("Term Loan II"), the proceeds of
which shall be used to purchase equipment. Borrower's obligation to repay Term
Loan II shall be evidenced by a promissory note substantially in the form of
Exhibit C attached hereto ("Term Note II"), all terms of which are incorporated
herein by this reference. Bank's commitment to
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grant Term Loan II shall terminate on October 1, 1995.
(b) REPAYMENT. The principal amount of Term Loan II shall be repaid in
accordance with the provisions of Term Note II.
(c) PREPAYMENT. Borrower may prepay principal on Term Loan II solely in
accordance with the provisions of Term Note II.
SECTION 1.4. INTEREST/FEES.
(a) INTEREST. The outstanding principal balance of the Line of Credit,
Term Loan I and Term Loan II shall bear interest at the rate of interest set
forth in the Line of Credit Note, Term Loan I Note and Term Loan II Note.
(b) COMPUTATION AND PAYMENT. Interest shall be computed on the basis of
a 360-day year, actual days elapsed. Interest shall be payable at the times
and place set forth in the Line of Credit Note, Term Note I and Term Note II
(collectively, the "Notes").
(c) LINE OF CREDIT COMMITMENT FEE. Borrower shall pay to Bank a non-
refundable commitment fee for the Line of Credit equal to Five Thousand Dollars
($5,000.00), which commitment fee shall be due and payable in full on the date
of this Agreement.
(d) TERM LOAN II FEE. Borrower shall pay to Bank a non-refundable loan
fee for Term Loan II equal to Five Hundred Dollars ($500.00), which fee shall
be due and payable in full on the date of this Agreement.
SECTION 1.5. COLLECTION OF PAYMENTS. Borrower authorizes Bank to
collect all principal, interest and fees due under each Credit by charging
Borrower's demand deposit account number 4888-
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015120 with Bank, or any other demand deposit account maintained by Borrower
with Bank, for the full amount thereof. Should there be insufficient funds in
any such demand deposit account to pay all such sums when due, the full amount
of such deficiency shall be immediately due and payable by Borrower.
SECTION 1.6. COLLATERAL.
As security for the Line of Credit of Borrower to Bank pursuant to this
Agreement, Borrower grants to Bank security interests of first priority in all
Borrower's accounts receivable, inventory, rights to payment, general
intangibles and equipment and as security for Term Loan I and Term Loan II of
Borrower to Bank pursuant to this Agreement, Borrower grants to Bank security
interests of first priority in all of Borrower's equipment.
All of the foregoing shall be evidenced by and subject to the terms of
such security agreements, financing statements, deeds of trust and other
documents as Bank shall reasonably require, all in form and substance
satisfactory to Bank. Borrower shall reimburse Bank immediately upon demand
for all costs and expenses incurred by Bank in connection with any of the
foregoing security, including without limitation, filing and recording fees and
costs of appraisals, audits and title insurance.
SECTION 1.7. GUARANTIES. All indebtedness of Borrower to Bank pursuant
to this Agreement shall be guaranteed by Pacific Baja Light Metals Holding Inc.
in the principal amount of Three Million Five Hundred Fifty-Five Thousand
Dollars ($3,555,000.00) and Naresh
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Saxena, X.X. Xxxxxxxx, Mugurdich Xxxxxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxxx Xxxxx
in the principal amount of Seven Hundred Twenty-Five Thousand ($725,000.00),
each, as evidenced by and subject to the terms of guaranties in form and
substance satisfactory to Bank.
ARTICLE II
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REPRESENTATIONS AND WARRANTIES
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Borrower makes the following representations and warranties to Bank, which
representations and warranties shall survive the execution of this Agreement
and shall continue in full force and effect until the full and final payment,
and satisfaction and discharge, of all obligations of Borrower to Bank subject
to this Agreement.
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly organized
and existing and in good standing under the laws of the State of California,
and is qualified or licensed to do business (and is in good standing as a
foreign corporation, if applicable) in all jurisdictions in which such
qualification or licensing is required or in which the failure to so qualify or
to be so licensed could have a material adverse effect on Borrower.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement, the Notes, and
each other document, contract and instrument required hereby or at any time
hereafter delivered to Bank in connection herewith (collectively, the "Loan
Documents") have been duly authorized, and upon their execution and delivery in
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accordance with the provisions hereof will constitute legal, valid and binding
agreements and obligations of Borrower or the party which executes the same,
enforceable in accordance with their respective terms.
SECTION 2.3. NO VIOLATION. The execution, delivery and performance by
Borrower of each of the Loan Documents do not violate any provision of any law
or regulation, or contravene any provision of the Articles of Incorporation or
By-Laws of Borrower or result in any breach of or default under any contract,
obligation, indenture or other instrument to which Borrower is a party or by
which Borrower may be bound.
SECTION 2.4. LITIGATION. There are no pending, or to the best of
Borrower's knowledge threatened, actions, claims, investigations, suits or
proceedings by or before any governmental authority, arbitrator, court or
administrative agency which could have a material adverse effect on the
financial condition or operation of Borrower other than those disclosed by
Borrower to Bank in writing prior to the date hereof.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENT. The financial
statement of Borrower dated June 30, 1995, a true copy of which has been
delivered by Borrower to Bank prior to the date hereof, (a) is complete and
correct and presents fairly the financial condition of Borrower, (b) discloses
all liabilities of Borrower that are required to be reflected or reserved
against under generally accepted accounting principles, whether liquidated
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or unliquidated, fixed or contingent, and (c) has been prepared in accordance
with generally accepted accounting principles consistently applied. Since the
date of such financial statement there has been no material adverse change in
the financial condition of Borrower, nor has Borrower mortgaged, pledged,
granted a security interest in or otherwise encumbered any of its assets or
properties except in favor of Bank or as otherwise permitted by Bank in
writing.
SECTION 2.6. INCOME TAX RETURNS. Borrower has no knowledge of any
pending assessments or adjustments of its income tax payable with respect to
any year.
SECTION 2.7. NO SUBORDINATION. There is no agreement, indenture,
contract or instrument to which Borrower is a party or by which Borrower may be
bound that requires the subordination in right of payment of any of Borrower's
obligations subject to this Agreement to any other obligation of Borrower.
SECTION 2.8. PERMITS, FRANCHISES. Borrower possesses, and will
hereafter possess, all permits, franchises and licenses required and rights to
all trademarks, trade names, patents, and fictitious names, if any, necessary
to enable it to conduct the business in which it is now engaged in compliance
with applicable law.
SECTION 2.9. ERISA. Borrower is in compliance in all material respects
with all applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended or recodified
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from time to time ("ERISA"); Borrower has not violated any provision of any
defined employee pension benefit plan (as defined in ERISA) maintained or
contributed to by Borrower (each, a "Plan"); no Reportable Event as defined in
ERISA has occurred and is continuing with respect to any Plan initiated by
Borrower; Borrower has met its minimum funding requirements under ERISA with
respect to each Plan; and each Plan will be able to fulfill its benefit
obligations as they come due in accordance with the Plan documents and under
generally accepted accounting principles.
SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation.
SECTION 2.11. ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to
Bank in writing prior to the date hereof, Borrower is 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 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
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time to time. None of the operations of Borrower 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. Borrower has no material
contingent liability in connection with any release of any toxic or hazardous
waste or substance into the environment.
ARTICLE III
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CONDITIONS
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SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation
of Bank to grant any of the Credits is subject to the fulfillment to Bank's
satisfaction of all of the following conditions:
(a) APPROVAL OF BANK COUNSEL. All legal matters incidental to the
granting of each of the Credits shall be satisfactory to Bank's counsel.
(b) DOCUMENTATION. Bank shall have received, in form and substance
satisfactory to Bank, each of the following, duly executed:
(i) This Agreement and the Notes.
(ii) Corporate Borrowing Resolution
(iii) Certificate of Incumbency
(iv) Articles of Incorporation
(v) Continuing Guaranties from all guarantors listed in Section 1.7.
(vi) Resolution Authorizing Execution of Guaranty
(vii) Security Agreement: Equipment
(viii) Continuing Security Agreement: Rights to Payment and Inventory
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(ix) UCC Financing Statement.
(x) Such other documents as Bank may require under any other Section
of this Agreement.
(c) FINANCIAL CONDITION. There shall have been no material adverse
change, as determined by Bank, in the financial condition or business of
Borrower or any guarantor hereunder, nor any material decline, as determined by
Bank, in the market value of any collateral required hereunder or a substantial
or material portion of the assets of Borrower or any such guarantor.
(d) INSURANCE. Borrower shall have delivered to Bank evidence of
insurance coverage on all Borrower's property, in form, substance, amounts,
covering risks and issued by companies satisfactory to Bank, and where required
by Bank, with loss payable endorsements in favor of Bank.
SECTION 3.2. CONDITIONS OF EACH EXTENSION OF CREDIT. The obligation of
Bank to make each extension of credit requested by Borrower hereunder shall be
subject to the fulfillment to Bank's satisfaction of each of the following
conditions:
(a) COMPLIANCE. The representations and warranties contained herein and
in each of the other Loan Documents shall be true on and as of the date of the
signing of this Agreement and on the date of each extension of credit by Bank
pursuant hereto, with the same effect as though such representations and
warranties had been made on and as of each such date, and on each such date, no
Event of Default as defined herein, and no condition, event or act which with
the giving of notice or the passage of time or both would constitute such an
Event of Default, shall have occurred and
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be continuing or shall exist.
(b) DOCUMENTATION. Bank shall have received all additional documents
which may be required in connection with such extension of credit.
ARTICLE IV
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AFFIRMATIVE COVENANTS
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Borrower covenants that so long as Bank remains committed to extend credit
to Borrower pursuant hereto, or any liabilities (whether direct or contingent,
liquidated or unliquidated) of Borrower to Bank under any of the Loan Documents
remain outstanding, and until payment in full of all obligations of Borrower
subject hereto, Borrower shall, unless Bank otherwise consents in writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest,
fees or other liabilities due under any of the Loan Documents at the times and
place and in the manner specified therein, and immediately upon demand by Bank,
the amount by which the outstanding principal balance of any of the Credits at
any time exceeds any limitation on borrowings applicable thereto.
SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records in
accordance with generally accepted accounting principles consistently applied,
and permit any representative of Bank, at any reasonable time, to inspect,
audit and examine such books and records, to make copies of the same, and to
inspect the properties of Borrower.
SECTION 4.3. FINANCIAL STATEMENTS. Provide to Bank all of
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the following, in form and detail satisfactory to Bank:
(a) not later than 120 days after and as of the end of each fiscal year,
a reviewed consolidated and consolidating financial statement of Borrower,
Pacific Baja Light Metals Holding Inc. and Baja Pacific Light Metals, Inc.
prepared by a certified public accountand acceptable to Bank, to include
balance sheet and income statement, statement of cash flow and all footnotes;
(b) not later than 45 days after and as of the end of each fiscal
quarter, a consolidated and consolidating financial statement of Borrower,
Pacific Baja Light Metals Holding Inc. and Baja Pacific Light Metals, Inc.
prepared by Borrower, to include balance sheet and income statement;
(c) not later than 15 days after and as of the end of each month, a
borrowing base certificate, an inventory collateral report, an aged listing of
accounts receivable and accounts payable, and a reconciliation of accounts;
(d) not later than 120 days after and as of the end of each calendar
year, a self-prepared financial statement of Pacific Baja Light Metals Holding
Inc., Xxxxxx Xxxxxx, X. X. Xxxxxxxx, Mugurdich Xxxxxxxxxx, Xxxxxxx Xxxxxxx and
Xxxxxxx Xxxxx, to include balance sheet and income statement , and within 30
days after filing, but in no event later than each November 15th, copies of the
filed Federal income tax returns for such year for each individual listed
above;
SECTION 4.4. COMPLIANCE. Preserve and maintain all licenses, permits,
governmental approvals, rights, privileges and
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franchises necessary for the conduct of its business; and comply with the
provisions of all documents pursuant to which Borrower is organized and/or
which govern Borrower's continued existence and with the requirements of all
laws, rules, regulations and orders of any governmental authority applicable to
Borrower and/or its business.
SECTION 4.5. 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 workers' compensation, with all such
insurance carried with companies and in amounts satisfactory to Bank, and
deliver to Bank from time to time at Bank's request schedules setting forth all
insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to
Borrower's business in good repair and condition, and from time to time make
necessary repairs, renewals and replacements thereto so that such properties
shall be fully and efficiently preserved and maintained.
SECTION 4.7. TAXES AND OTHER LIABILITIES. Pay and discharge when due
any and all indebtedness, obligations, assessments and taxes, both real or
personal, including without limitation Federal and state income taxes and state
and local property taxes and assessments, except such (a) as Borrower may in
good faith contest or as to which a bona fide dispute may arise, and (b) for
which Borrower has made provision, to Bank's
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satisfaction, for eventual payment thereof in the event Borrower is obligated
to make such payment.
SECTION 4.8. LITIGATION. Promptly give notice in writing to Bank of any
litigation pending or threatened against Borrower.
SECTION 4.9. FINANCIAL CONDITION. Maintain Borrower's, Baja Pacific
Light Metals Inc.'s and Pacific Baja Light Metals Holding Inc.'s financial
condition on a consolidated basis as follows using generally accepted
accounting principles consistently applied and used consistently with prior
practices, except to the extent modified by the following definitions:
(a) Working Capital not at any time less than $250,000.00, with "Working
Capital" defined as total current assets minus total current liabilities.
(b) Tangible Net Worth not at any time less than $5,000,000.00, with
"Tangible Net Worth" defined as the aggregate of total stockholders' equity
plus subordinated debt less any intangible assets.
(c) Total Liabilities divided by Tangible Net Worth not at any time
greater than 2.0 to 1.0, with "Total Liabilities" defined as the aggregate of
current liabilities and non-current liabilities less subordinated debt, and
with "Tangible Net Worth" as defined above.
(d) Pre-tax profit not less than $1.00 on a quarterly basis, determined
as of each fiscal quarter end.
(e) EBITDA Coverage Ratio not less than 2.0 to 1.0 as of
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each fiscal year end, with "EBITDA" defined as net profit before tax plus
interest expense (net of capitalized interest expense), depreciation expense
and amortization expense, and with "EBITDA Coverage Ratio" defined as EBITDA
divided by the aggregate of total interest expense plus the prior period
current maturity of long-term debt and the prior period current maturity of
subordinated debt.
SECTION 4.10. FINANCIAL CONDITION. Maintain Borrower's financial
condition as follows using generally accepted accounting principles
consistently applied and used consistently with prior practices, except to the
extent modified by the following definitions:
(a) Working Capital not at any time less than $500,000.00, with "Working
Capital" defined as total current assets minus total current liabilities.
(b) Tangible Net Worth not at any time less than $2,500,000.00, with
"Tangible Net Worth" defined as the aggregate of total stockholders' equity
plus subordinated debt less any intangible assets.
(c) Total Liabilities divided by Tangible Net Worth not at any time
greater than 2.5 to 1.0, with "Total Liabilities" defined as the aggregate of
current liabilities and non-current liabilities less subordinated debt, and
with "Tangible Net Worth" as defined above.
(d) Pre-tax profit not less than $1.00 on a quarterly basis, determined
as of each fiscal quarter end.
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(e) EBITDA Coverage Ratio not less than 2.0 to 1.0 as of each fiscal year
end, with "EBITDA"defined as net profit before tax plus interest expense (net
of capitalized interest expense), depreciation expense and amortization
expense, and with "EBITDA Coverage Ratio" defined as EBITDA divided by the
aggregate of total interest expense plus the prior period current maturity of
long-term debt and the prior period current maturity of subordinated debt.
SECTION 4.11. NOTICE TO BANK. Promptly (but in no event more than five
(5) days after the occurrence of each such event or matter) give written notice
to Bank in reasonable detail of: (a) the occurrence of any Event of Default,
or any condition, event or act which with the giving of notice or the passage
of time or both would constitute an Event of Default; (b) any change in the
name or the organizational structure of Borrower, or any action, claim,
investigation, suit or proceeding pending or asserted by or before any
governmental authority, arbitrator, court or administrative agency challenging
or denying Borrower's qualification for tax treatment as if it were a
partnership for income tax purposes]; (c) 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; or (d) any termination or
cancellation of any insurance policy which Borrower is required to maintain, or
any uninsured or partially uninsured loss through liability or property damage,
or through fire, theft or any other cause affecting Borrower's property.
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ARTICLE V
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NEGATIVE COVENANTS
------------------
Borrower further covenants that so long as Bank remains committed to
extend credit to Borrower pursuant hereto, or any liabilities (whether direct
or contingent, liquidated or unliquidated) of Borrower to Bank under any of the
Loan Documents remain outstanding, and until payment in full of all obligations
of Borrower subject hereto, Borrower will not without Bank's prior written
consent:
SECTION 5.1. USE OF FUNDS. Use any of the proceeds of any of the
Credits except for the purposes stated in Article I hereof.
ARTICLE VI
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EVENTS OF DEFAULT
-----------------
SECTION 6.1. The occurrence of any of the following shall constitute an
"Event of Default" under this Agreement:
(a) Borrower shall fail to pay when due any principal, interest, fees or
other amounts payable under any of the Loan Documents.
(b) Any financial statement or certificate furnished to Bank in
connection with, or any representation or warranty made by Borrower or any
other party under this Agreement or any other Loan Document shall prove to be
incorrect, false or misleading in any material respect when furnished or made.
(c) Any default in the performance of or compliance with any obligation,
agreement or other provision contained herein or in any other Loan Document
(other than those referred to in subsections
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(a) and (b) above), and with respect to any such default which by its nature
can be cured, such default shall continue for a period of twenty (20) days from
its occurrence.
(d) Any default in the payment or performance of any obligation, or any
defined event of default, under the terms of any contract or instrument (other
than any of the Loan Documents) pursuant to which Borrower or any guarantor
hereunder has incurred any debt or other liability to any person or entity,
including Bank.
(e) The filing of a notice of judgment lien against Borrower or any
guarantor hereunder; or the recording of any abstract of judgment against
Borrower or any guarantor hereunder in any county in which Borrower or such
guarantor 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 any guarantor hereunder; or the entry of a judgment
against Borrower or any guarantor hereunder.
(f) Borrower or any guarantor hereunder shall become insolvent, or shall
suffer or consent to or apply for the appointment of a receiver, trustee,
custodian or liquidator of itself or any of its property, or shall generally
fail to pay its debts as they become due, or shall make a general assignment
for the benefit of creditors; Borrower or any guarantor hereunder shall file a
voluntary petition in bankruptcy, or seeking 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
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Xxxxxx Xxxxxx 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; or 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 or any guarantor hereunder, or Borrower or any such guarantor
shall file an answer admitting the jurisdiction of the court and the material
allegations of any involuntary petition; or Borrower or such guarantor shall be
adjudicated a bankrupt, or an order for relief shall be entered against
Borrower or any Guarantor 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.
(g) There shall exist or occur any event or condition which Bank in good
faith believes impairs, or is substantially likely to impair, the prospect of
payment or performance by Borrower of its obligations under any of the Loan
Documents.
(h) The death or incapacity of any guarantor. The dissolution or
liquidation of Borrower or any guarantor; or Borrower or any such guarantor, or
any of their directors, stockholders or members, shall take action seeking to
effect the dissolution or liquidation of Borrower or such guarantor.
(i) Any change in ownership during the term of this Agreement of an
aggregate of twenty-five percent (25%) or more of
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the common stock of Borrower.
SECTION 6.2. REMEDIES. Upon the occurrence of any Event of Default: (a)
all indebtedness of Borrower under each of the Loan Documents, any term thereof
to the contrary notwithstanding, shall at Bank's option and without notice
become immediately due and payable without presentment, demand, protest or
notice of dishonor, all of which are hereby expressly waived by Borrower; (b)
the obligation, if any, of Bank to extend any further credit under any of the
Loan Documents shall immediately cease and terminate; and (c) Bank shall have
all rights, powers and remedies available under each of the Loan Documents, or
accorded by law, including without limitation the right to resort to any or all
security for any of the Credits and to exercise any or all of the rights of a
beneficiary or secured party pursuant to applicable law. All rights, powers
and remedies of Bank may be exercised at any time by 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.
ARTICLE VII
-----------
MISCELLANEOUS
-------------
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of 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
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otherwise affect any other or further exercise thereof or the exercise of any
other right, power or remedy. Any waiver, permit, consent or approval of any
kind by Bank of any breach of or default under any of the Loan Documents must
be in writing and shall be effective only to the extent set forth in such
writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party
is required or may desire to give to any other party under any provision of
this Agreement must be in writing delivered to each party at the following
address:
BORROWER: Optima Wheel, Inc.
00000 Xxxxxx Xxxx
Xx Xxxxxx, XX 00000
BANK: XXXXX FARGO BANK, NATIONAL ASSOCIATION
000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
or to such other address as any party may designate by written notice to all
other parties. Each such notice, request and demand shall be deemed given or
made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit
in the U.S. mail, first class and postage prepaid; and (c) if sent by
telecopy, upon receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all payments, advances,
charges, costs and expenses, including reasonable attorneys' fees (to include
outside counsel fees and all allocated costs of Bank's in-house counsel),
incurred by Bank-in
Page 24
connection with a) the negotiation and preparation of this Agreement and the
other Loan Documents, Bank's continued administration hereof and thereof, and
the preparation of any amendments and waivers hereto and thereto, (b) the
enforcement of Bank's rights and/or the collection of any amounts which become
due to Bank under any of the Loan Documents, and (c) the prosecution or defense
of any action in any way related to any of the Loan Documents, including
without limitation, any action for declaratory relief, and including any of the
foregoing incurred in connection with any bankruptcy proceeding relating to
Borrower.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors and assigns of the parties; provided however, that
Borrower may not assign or transfer its interest hereunder without Bank's prior
written consent. Bank reserves the right to sell, assign, transfer, negotiate
or grant participations in all or any part of, or any interest in, Bank's
rights and benefits under each of the Loan Documents. In connection therewith,
Bank may disclose all documents and information which Bank now has or may
hereafter acquire relating to any of the Credits, Borrower or its business, any
guarantor hereunder or the business of such guarantor, or any collateral
required hereunder.
SECTION 7.5, ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
Loan Documents constitute the entire agreement
Page 25
between Borrower and Bank with respect to the Credits and supersede all prior
negotiations, communications, discussions and correspondence concerning the
subject matter hereof. This Agreement may be amended or modified only by a
written instrument executed by each party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is made and
entered into for the sole protection and benefit of the parties hereto 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, this Agreement or any other of the
Loan Documents to which it is not a party.
SECTION 7.7. TIME. Time is of the essence of each and every provision
of this Agreement and each other of the Loan Documents.
SECTION 7.8. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or any
remaining provisions of this Agreement.
SECTION 7.9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, except to the
extent Bank has greater rights or remedies under Federal law, whether as a
national bank or
Page 26
otherwise, in which case such choice of California law shall not be deemed to
deprive Bank of any such rights and remedies as may be available under Federal
law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
Optima Wheel, Inc. XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXXX PRES By: /S/ XXXXX X. XXXXX
--------------------------- -------------------------
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxx
President Vice President
Page 27
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
is entered into as of March 26, 1996, by and between OPTIMA
WHEEL, INC., a California corporation ("Borrower"), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION ("Bank").
RECITALS
--------
WHEREAS, Borrower is currently indebted to Bank pursuant to the terms and
conditions of that certain Credit Agreement between Borrower and Bank dated as
of September 1, 1995, as amended fromtime to time ("Credit Agreement").
WHEREAS, Bank and Borrower have agreed to certain changes in the terms and
conditions set forth in the Credit Agreement and have agreed to amend the
Credit Agreement to reflect said changes.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree that the Credit
Agreement shall be amended as follows:
1. Section 1.1.(a) is hereby amended by deleting "Three Million Dollars
($3,000,000.00)" as the maximum principal amount available under the Line of
Credit, and by substituting for said amount "Three Million Five Hundred
Thousand Dollars ($3,500,000.00)," with such change to be effective upon the
execution and delivery to Bank of a promissory note substantially in the form
of Exhibit A attached hereto (which promissory note shall replace and be deemed
the Line of Credit Note defined in
Page 28
and made pursuant to the Credit Agreement) and all other contracts, instruments
and documents required by Bank to evidence such change.
2. Section 1.4. (c) is hereby deleted in its entirety, and the following
substituted therefor:
"(c) LINE OF CREDIT COMMITMENT FEE.
Borrower shall pay to Bank a non-
refundable commitment fee for the
Line of Credit equal to Five Hundred
Dollars ($500.00), which commitment
fee shall be due and payable in full
upon execution of this amendment."
3. Except as specifically provided herein, all terms and conditions of
the Credit Agreement remain in full force and effect, without waiver or
modification. All terms defined in the Credit Agreement shall have the same
meaning when used in this Amendment. This Amendment and the Credit Agreement
shall be read together, as one document.
4. Borrower hereby remakes all representations and warranties contained
in the Credit Agreement and reaffirms all covenants set forth therein.
Borrower further certifies that as of the date of this Amendment there exists
no Event of Default as defined in the Credit Agreement, nor any condition, act
or event which with the giving of notice or the passage of time or both would
constitute any such Event of Default.
Page 29
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first written above.
OPTIMA WHEEL, INC. XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By: /S/ XXXXXXX X. XXXXX PRES By: /S/ XXXXX X. XXXXX
-------------------------- ---------------------
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxx
President Vice President
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