BUSINESS LOAN AGREEMENT
This Agreement dated as of July 31, 2001 is between Bank of America, N.A.
(the "Bank") and National R.V. Holdings, Inc., a Delaware corporation (the
"Borrower").
1. LINE OF CREDIT; AMOUNT AND TERMS
1.1 Line of Credit Amount.
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(a) During the availability period described below,
the Bank will provide a line of credit to the Borrower. The amount of
the line of credit (the "Commitment") is Fifteen Million Dollars
($15,000,000).
(b) This is a revolving line of credit providing for
cash advances and letters of credit. During the availability period,
the Borrower may repay principal amounts and reborrow them.
(c) The Borrower agrees not to permit the outstanding
principal balance of advances under the line of credit plus the
outstanding amounts of any letters of credit, including amounts drawn
on letters of credit and not yet reimbursed to exceed the Commitment.
1.2 Availability Period. The line of credit is available
between the date of this Agreement and August 1, 2002, or such earlier date as
the availability may terminate as provided in this Agreement (the "Expiration
Date").
1.3 Interest Rate.
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(a) Unless the Borrower elects an optional interest
rate as described below, the interest rate is a rate per year equal to
the Bank's Prime Rate.
(b) The Prime Rate is the rate of interest publicly
announced from time to time by the Bank as its Prime Rate. The Prime
Rate is set by the Bank based on various factors, including the Bank's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans. The
Bank may price loans to its customers at, above, or below the Prime
Rate. Any change in the Prime Rate shall take effect at the opening of
business on the day specified in the public announcement of a change in
the Bank's Prime Rate.
1.4 Repayment Terms.
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(a) The Borrower will pay interest on August 1, 2001
and then monthly thereafter until payment in full of any principal
outstanding under this line of credit.
(b) The Borrower will repay in full all principal and
any unpaid interest or other charges outstanding under this line of
credit no later than the Expiration Date. Any interest period for an
optional interest rate (as described below) shall expire no later than
the Expiration Date.
1.5 Optional Interest Rates. Instead of the interest rate
based on the Bank's Prime Rate, the Borrower may elect the optional interest
rates listed below during interest periods agreed to by the Bank and the
Borrower. The optional interest rates shall be subject to the terms and
conditions described later in this Agreement. Any principal amount bearing
interest at an optional rate under this Agreement is referred to as a "Portion."
The following optional interest rates are available:
(a) the LIBOR Rate plus 2.00 percentage points.
1.6 Letters of Credit.
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(a) This line of credit may be used for financing:
(i) standby letter(s) of credit with a
maximum maturity not to extend beyond the Expiration Date.
(ii) The amount of the letter(s) of credit
outstanding at any one time (including amounts drawn on the
letter(s) of credit and not yet reimbursed) may not exceed Six
Million Dollars ($6,000,000).
(b) The Borrower agrees:
(i) any sum drawn under a letter of credit
may, at the option of the Bank, be added to the principal
amount outstanding under this Agreement. The amount will bear
interest and be due as described elsewhere in this Agreement.
(ii) if there is a default under this
Agreement, to immediately prepay and make the Bank whole for
any outstanding letters of credit.
(iii) the issuance of any letter of credit
and any amendment to a letter of credit is subject to the
Bank's written approval and must be in form and content
satisfactory to the Bank and in favor of a beneficiary
acceptable to the Bank.
(iv) to sign the Bank's Application and
Agreement for Standby Letter of Credit.
(v) to pay any issuance and/or other fees
that the Bank notifies the Borrower will be charged for
issuing and processing letters of credit for the Borrower.
(vi) to allow the Bank to automatically
charge its checking account for applicable fees, discounts,
and other charges.
(vii) to pay the Bank a non-refundable fee
equal to 1.25% per annum of the outstanding undrawn amount of
each standby letter of credit, payable quarterly in advance,
calculated on the basis of the face amount outstanding on the
day the fee is calculated. If there is a default under this
Agreement, at the Bank's option, the amount of the fee shall
be increased to 2.25% per annum, effective starting on the day
the Bank provides notice of the increase to the Borrower.
2. OPTIONAL INTEREST RATES
2.1 Optional Rates. Each optional interest rate is a rate per
year. Interest will be paid on the last day of each interest period, and on the
First day of each month during the interest period. At the end of any interest
period, the interest rate will revert to the rate based on the Prime Rate,
unless the Borrower has designated another optional interest rate for the
Portion. No Portion will be converted to a different interest rate during the
applicable interest period. Upon the occurrence of any event of default under
this Agreement, the Bank may terminate the availability of optional interest
rates for interest periods commencing after the default occurs.
2.2 LIBOR Rate. The election of LIBOR Rates shall be subject
to the following terms and requirements:
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(a) The interest period during which the LIBOR Rate
will be one, two, three, four, five, or six, months. The first day of
the interest period must be a day other than a Saturday or a Sunday on
which the Bank is open for business in New York and London and dealing
in offshore dollars (a "LIBOR Banking Day"). The last day of the
interest period and the actual number of days during the interest
period will be determined by the Bank using the practices of the London
inter-bank market.
(b) Each LIBOR Rate Portion will be for an amount not
less than Five Hundred Thousand Dollars ($500,000).
(c) The "LIBOR Rate" means the interest rate
determined by the following formula, rounded upward to the nearest
1/100 of one percent. (All amounts in the calculation will be
determined by the Bank as of the first day of the interest period.)
LIBOR Rate = London Inter-Bank Offered Rate
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(1.00 - Reserve Percentage)
Where,
(i) "London Inter-Bank Offered Rate" means
the average per annum interest rate at which U.S. dollar
deposits would be offered for the applicable interest period
by major banks in the London inter-bank market, as shown on
the Telerate Page 3750 (or any successor page) at
approximately 11:00 a.m. London time two (2) London Banking
Days before the commencement of the interest period. If such
rate does not appear on the Telerate Page 3750 (or any
successor page), the rate for that interest period will be
determined by such alternate method as reasonably selected by
the Bank. A "London Banking Day" is a day on which the Bank's
London Banking Center is open for business and dealing in
offshore dollars.
(ii) "Reserve Percentage" means the total of
the maximum reserve percentages for determining the reserves
to be maintained by member banks of the Federal Reserve System
for Eurocurrency Liabilities, as defined in Federal Reserve
Board Regulation D, rounded upward to the nearest 1/100 of one
percent. The percentage will be expressed as a decimal, and
will include, but not be limited to, marginal, emergency,
supplemental, special, and other reserve percentages.
(d) The Borrower shall irrevocably request a LIBOR
Rate Portion no later than12:00 noon San Francisco time on the LIBOR
Banking Day preceding the day on which the London Inter-Bank Offered
Rate will be set, as specified above. For example, if there are no
intervening holidays or weekend days in any of the relevant locations,
the request must be made at least three days before the LIBOR Rate
takes effect.
(e) The Borrower may not elect a LIBOR Rate with
respect to any principal amount which is scheduled to be repaid before
the last day of the applicable interest period.
(f) Each prepayment of a LIBOR Rate Portion, whether
voluntary, by reason of acceleration or otherwise, will be accompanied
by the amount of accrued interest on the amount prepaid and a
prepayment fee as described below. A "prepayment" is a payment of an
amount on a date earlier than the scheduled payment date for such
amount as required by this Agreement.
(g) The prepayment fee shall be equal to the amount
(if any) by which:
(i) the additional interest which would have
been payable during the interest period on the amount prepaid
had it not been prepaid, exceeds
(ii) the interest which would have been
recoverable by the Bank by placing the amount prepaid on
deposit in the domestic certificate of deposit market, the
eurodollar deposit market, or other appropriate money market
selected by the Bank, for a period starting on the date on
which it was prepaid and ending on the last day of the
interest period for such Portion (or the scheduled payment
date for the amount prepaid, if earlier).
(h) The Bank will have no obligation to accept an
election for a LIBOR Rate Portion if any of the following described
events has occurred and is continuing:
(i) Dollar deposits in the principal amount,
and for periods equal to the interest period, of a LIBOR Rate
Portion are not available in the London inter-bank market; or
(ii) the LIBOR Rate does not accurately
reflect the cost of a LIBOR Rate Portion.
3. FEES AND EXPENSES
3.1 Fees.
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(a) Commitment closing fee. The Borrower agrees to
pay to the Bank on the date of this Agreement, a commitment closing fee
of ($46,875.00).
(b) Unused commitment fee. The Borrower agrees to pay
a fee on any difference between the Commitment and the amount of credit
it actually uses, determined by the average of the daily amount of
credit outstanding during the specified period. The fee will be
calculated at .25% per year and will be paid on a quarterly basis. The
calculation of credit outstanding shall include the undrawn amount of
letters of credit.
This fee is due on September 30, 2001 and will accrue from July __,
2001 and is payable on the last day of each following quarter until the
expiration of the availability period.
(c) Waiver Fee. If the Bank, at its discretion,
agrees to waive or amend any terms of this Agreement, the Borrower
will, at the Bank's option, pay the Bank a fee for each waiver or
amendment in an amount advised by the Bank at the time the Borrower
requests the waiver or amendment. Nothing in this paragraph shall imply
that the Bank is obligated to agree to any waiver or amendment
requested by the Borrower. The Bank may impose additional requirements
as a condition to any waiver or amendment.
(d) Late Fee. To the extent permitted by law, the
Borrower agrees to pay a late fee in an amount not to exceed two
percent (2%) of any payment that is more than five (5) days late. The
imposition and payment of a late fee shall not constitute a waiver of
the Bank's rights with respect to the default.
3.2 Expenses. The Borrower agrees to promptly repay the Bank
for it's accrued and reasonable out-of-pocket expenses that include, but are not
limited to, filing, recording and search fees, appraisal fees, title report fees
and documentation fees.
3.3 Reimbursement Costs.
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(a) The Borrower agrees to reimburse the Bank for
reasonable expenses it incurs in the preparation of this Agreement and
any agreement or instrument required by this Agreement in excess of
those fees and costs listed above. Expenses include, but are not
limited to, reasonable attorneys' fees, including any allocated costs
of the Bank's in-house counsel.
(b) The Borrower agrees to reimburse the Bank for the
cost of periodic audits and appraisals of the personal property
collateral securing this Agreement, at such intervals as the Bank may
reasonably require but no more frequently than annually except that the
Bank may conduct audits and appraisals on a basis no more frequent than
quarterly upon the occurrence of an Event of Default. The audits and
appraisals may be performed by employees of the Bank or by independent
appraisers.
4. COLLATERAL
4.1 Personal Property. The Borrower's obligations to the Bank
under this Agreement will be secured by personal property the Borrower now owns
or will own in the future as listed below. The collateral is further defined in
security agreement(s) executed by the Borrower. In addition, all personal
property collateral securing this Agreement shall also secure all other present
and future obligations of the Borrower to the Bank under this Agreement
(excluding any consumer credit covered by the federal Truth in Lending law,
unless the Borrower has otherwise agreed in writing). All personal property
collateral securing any other present or future obligations of the Borrower to
the Bank shall also secure this Agreement.
(a) Accounts as defined in the Uniform Commercial
Code .
4.2 Personal Property Supporting Guaranty. The obligations
of the guarantors Country Coach, Inc., an Oregon corporation, and National R.V.
Holding, Inc., a California corporation to the Bank will be secured by personal
property the guarantor now owns or will own in the future as listed below. The
collateral is further defined in security agreement(s) executed by each
guarantor.
(a) Accounts as defined in the Uniform Commercial
Code.
5. DISBURSEMENTS, PAYMENTS AND COSTS
5.1 Requests for Credit
Each request for an extension of credit will be made in
writing in a manner acceptable to the Bank, or by another means
acceptable to the Bank.
5.2 Disbursements and Payments.
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(a) Each payment by the Borrower will be made at the
Bank's banking center (or other location) selected by the Bank from
time to time; and will be made in immediately available funds, or such
other type of funds selected by the Bank.
(b) Each disbursement by the Bank and each payment by
the Borrower will be evidenced by records kept by the Bank. In
addition, the Bank may, at its discretion, require the Borrower to sign
one or more promissory notes.
5.3 Telephone and Telefax Authorization.
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(a) The Bank may honor telephone or telefax
instructions for advances or repayments or for the designation of
optional interest rates and telefax requests for the issuance of
letters of credit given, or purported to be given, by any one of the
individuals authorized to sign loan agreements on behalf of the
Borrower, or any other individual designated by any one of such
authorized signers.
(b) Advances will be deposited in and repayments will
be withdrawn from the Borrower's account number 14961-02476, or such
other of the Borrower's accounts with the Bank as designated in writing
by the Borrower.
(c) The Borrower will indemnify and hold the Bank
harmless from all liability, loss, and costs in connection with any act
resulting from telephone or telefax instructions the Bank reasonably
believes are made by any individual authorized by the Borrower to give
such instructions. This paragraph will survive this Agreement's
termination, and will benefit the Bank and its officers, employees, and
agents.
5.4 Direct Debit (Pre-Billing).
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(a) The Borrower agrees that the Bank will debit the
Borrower's deposit account number 14961-02476, or such other of the
Borrower's accounts with the Bank as designated in writing by the
Borrower (the "Designated Account") on the date each payment of
principal and interest and any fees from the Borrower becomes due (the
"Due Date").
(b) Approximately 10 days prior to each Due Date, the
Bank will mail to the Borrower a statement of the amounts that will be
due on that Due Date (the "Billed Amount"). The calculation will be
made on the assumption that no new extensions of credit or payments
will be made between the date of the billing statement and the Due
Date, and that there will be no changes in the applicable interest
rate.
(c) The Bank will debit the Designated Account for
the Billed Amount, regardless of the actual amount due on that date
(the "Accrued Amount"). If the Billed Amount debited to the Designated
Account differs from the Accrued Amount, the discrepancy will be
treated as follows:
(i) If the Billed Amount is less than the
Accrued Amount, the Billed Amount for the following Due Date
will be increased by the amount of the discrepancy. The
Borrower will not be in default by reason of any such
discrepancy.
(ii) If the Billed Amount is more than the
Accrued Amount, the Billed Amount for the following Due Date
will be decreased by the amount of the discrepancy.
Regardless of any such discrepancy, interest will continue to accrue
based on the actual amount of principal outstanding without
compounding. The Bank will not pay the Borrower interest on any
overpayment.
(d) The Borrower will maintain sufficient funds in
the Designated Account to cover each debit. If there are insufficient
funds in the Designated Account on the date the Bank enters any debit
authorized by this Agreement, the Bank may reverse the debit.
5.5 Banking Days. Unless otherwise provided in this Agreement,
a banking day is a day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close, or are in fact closed, in the state
where the Bank's lending office is located, and, if such day relates to amounts
bearing interest at an offshore rate (if any), means any such day on which
dealings in dollar deposits are conducted among banks in the offshore dollar
interbank market. All payments and disbursements which would be due on a day
which is not a banking day will be due on the next banking day. All payments
received on a day which is not a banking day will be applied to the credit on
the next banking day.
5.6 Taxes.
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(a) If any payments to the Bank under this Agreement
are made from outside the United States, the Borrower will not deduct
any foreign taxes from any payments it makes to the Bank. If any such
taxes are imposed on any payments made by the Borrower (including
payments under this paragraph), the Borrower will pay the taxes and
will also pay to the Bank, at the time interest is paid, any additional
amount which the Bank specifies as necessary to preserve the after-tax
yield the Bank would have received if such taxes had not been imposed.
The Borrower will confirm that it has paid the taxes by giving the Bank
official tax receipts (or notarized copies) within thirty (30) days
after the due date.
5.7 Additional Costs. The Borrower will pay the Bank, on
demand, for the Bank's costs or losses arising from any statute or regulation,
or any request or requirement of a regulatory agency which is applicable to all
national banks or a class of all national banks. The costs and losses will be
allocated to the loan in a manner determined by the Bank, using any reasonable
method. The costs include the following:
(a) any reserve or deposit requirements; and
(b) any capital requirements relating to the Bank's
assets and commitments for credit.
5.8 Interest Calculation. Except as otherwise stated in this
Agreement, all interest and fees, if any, will be computed on the basis of a
360-day year and the actual number of days elapsed. This results in more
interest or a higher fee than if a 365-day year is used. Installments of
principal which are not paid when due under this Agreement shall continue to
bear interest until paid.
5.9 Default Rate. Upon the occurrence of any default under
this Agreement, principal amounts outstanding under this Agreement will at the
option of the Bank bear interest at the Bank's Prime Rate plus 2.0 percentage
points. This will not constitute a waiver of any default.
5.10 Interest Compounding. At the Bank's sole option in each
instance, any interest, fees or costs which are not paid when due under this
Agreement shall bear interest from the due date at the Bank's Prime Rate plus
2.0 percentage points. This may result in compounding of interest.
6. CONDITIONS
The Bank must receive the following items, in form and content
acceptable to the Bank, before it is required to extend any credit to the
Borrower under this Agreement:
6.1 Authorizations. Evidence that the execution, delivery and
performance by the Borrower and each guarantor of this Agreement and any
instrument or agreement required under this Agreement have been duly authorized.
6.2 Governing Documents. A copy of the Borrower's and each
guarantor's articles of incorporation.
6.3 Security Agreements. Signed original security agreements,
assignments which the Bank requires.
6.4 Perfection and Evidence of Priority. Financing statements
(and any collateral in which the Bank requires a possessory security interest),
together with evidence that the security interests and liens in favor of the
Bank are valid, enforceable, and prior to all others' rights and interests,
except those the Bank consents to in writing.
6.5 Environmental Information. A completed Bank form
Environmental Questionnaire from Borrower and each guarantor, due within 30 days
of the date of this Agreement
6.6 Guaranties. Guaranties signed by Country Coach, Inc., an
Oregon corporation and National R.V. Inc., a California corporation.
6.7 Good Standing. Certificates of good standing for the
Borrower and for each guarantor from its state of formation and from any other
state in which the Borrower and each guarantor is required to qualify to conduct
its business.
6.8 Payment of Fees. Payment of all accrued and unpaid
expenses incurred by the Bank as required by the paragraph entitled
"Reimbursement Costs."
6.9 Other Items. Any other items that the Bank reasonably
requires.
7. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is
repaid in full, the Borrower makes the following representations and warranties.
Each request for an extension of credit constitutes a renewal of these
representations and warranties as of the date of the request:
7.1 Organization of Borrower. The Borrower is duly formed
and existing under the laws of the state where organized.
7.2 Authorization. This Agreement, and any instrument or
agreement required hereunder, are within the Borrower's powers, have been duly
authorized, and do not conflict with any of its organizational papers.
7.3 Enforceable Agreement. This Agreement is a legal, valid
and binding agreement of the Borrower, enforceable against the Borrower in
accordance with its terms, and any instrument or agreement required hereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable.
7.4 Good Standing. In each state in which the Borrower does
business, it is properly licensed, in good standing, and, where required, in
compliance with fictitious name statutes.
7.5 No Conflicts. This Agreement does not conflict with any
law, agreement, or obligation by which the Borrower is bound.
7.6 Financial Information. All financial and other information
that has been or will be supplied to the Bank is sufficiently complete to give
the Bank accurate knowledge of the Borrower's (and any guarantor's) financial
condition, including all material contingent liabilities. Since the date of the
most recent financial statement provided to the Bank, there has been no material
adverse change in the business condition (financial or otherwise), operations,
properties or prospects of the Borrower (or any guarantor).
7.7 Lawsuits. There is no lawsuit, tax claim or other dispute
pending or threatened against the Borrower which, if lost, would impair the
Borrower's financial condition or ability to repay the loan, except as have been
disclosed in writing to the Bank.
7.8 Collateral. All collateral required in this Agreement is
owned by the grantor of the security interest free of any title defects or any
liens or interests of others.
7.9 Permits, Franchises. The Borrower possesses all permits,
memberships, franchises, contracts and licenses required and all trademark
rights, trade name rights, patent rights and fictitious name rights necessary to
enable it to conduct the business in which it is now engaged.
7.10 Other Obligations. The 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.
7.11 Tax Matters. The Borrower has no knowledge of any
pending assessments or adjustments of its income tax for any year and all taxes
due have been paid.
7.12 No Event of Default. There is no event which is, or with
notice or lapse of time or both would be, a default under this Agreement.
7.13 Insurance. The Borrower has obtained, and maintained in
effect, the insurance coverage required in the "Covenants" section 8.20 of this
Agreement.
7.14 ERISA Plans.
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(a) Each Plan (other than a multiemployer plan) is in
compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law. Each Plan has received
a favorable determination letter from the IRS and to the best knowledge
of the Borrower, nothing has occurred which would cause the loss of
such qualification. The Borrower has fulfilled its obligations, if any,
under the minimum funding standards of ERISA and the Code with respect
to each Plan, and has not incurred any liability with respect to any
Plan under Title IV of ERISA.
(b) There are no claims, lawsuits or actions
(including by any governmental authority), and there has been no
prohibited transaction or violation of the fiduciary responsibility
rules, with respect to any Plan which has resulted or could reasonably
be expected to result in a material adverse effect.
(c) With respect to any Plan subject to Title IV of
ERISA:
(i) No reportable event has occurred under
Section 4043(c) of ERISA for which the PBGC requires 30-day
notice.
(ii) No action by the Borrower or any ERISA
Affiliate to terminate or withdraw from any Plan has been
taken and no notice of intent to terminate a Plan has been
filed under Section 4041 of ERISA.
(iii) No termination proceeding has been
commenced with respect to a Plan under Section 4042 of ERISA,
and no event has occurred or condition exists which might
constitute grounds for the commencement of such a proceeding.
(d) The following terms have the meanings indicated
for purposes of this Agreement:
(i) "Code" means the Internal Revenue Code
of 1986, as amended from time to time.
(ii) "ERISA" means the Employee Retirement
Income Security Act of 1974, as amended from time to time.
(iii) "ERISA Affiliate" means any trade or
business (whether or not incorporated) under common control
with the Borrower within the meaning of Section 414(b) or (c)
of the Code.
(iv) "PBGC" means the Pension Benefit
Guaranty Corporation.
(v) "Plan" means a pension, profit-sharing,
or stock bonus plan intended to qualify under Section 401(a)
of the Code, maintained or contributed to by the Borrower or
any ERISA Affiliate, including any multiemployer plan within
the meaning of Section 4001(a)(3) of ERISA.
7.15 Location of Borrower. The Borrower's place of business
(or, if the Borrower has more than one place of business, its chief executive
office) is located at the address listed under the Borrower's signature on this
Agreement.
7.16 Environmental Matters. The Borrower (a) is not in
violation of any health, safety, or environmental law or regulation regarding
hazardous substances and (b) is not the subject of any claim, proceeding,
notice, or other communication regarding hazardous substances. "Hazardous
substances" means any substance, material or waste that is or becomes designated
or regulated as "toxic," "hazardous," "pollutant," or "contaminant" or a similar
designation or regulation under any federal, state or local law (whether under
common law, statute, regulation or otherwise) or judicial or administrative
interpretation of such, including without limitation petroleum or natural gas.
8. COVENANTS
The Borrower agrees, so long as credit is available under this
Agreement and until the Bank is repaid in full:
8.1 Use of Proceeds. To use the proceeds of the credit only
for (I) working capital, (ii) acquisitions, (iii) capital expenditures (iv)
general corporate purposes, or (v) the issuance of performance and financial
standby letters of credit for general business purposes including worker's
compensation.
8.2 Financial Information. To provide the following financial
information and statements in form and content acceptable to the Bank, and such
additional information as requested by the Bank from time to time:
(a) Within 120 days of the Borrower's fiscal year
end, the Borrower's annual financial statements certified and dated by
an authorized financial officer of the Borrower. These financial
statements must be audited (with an unqualified opinion)by a Certified
Public Accountant acceptable to the Bank. The statements shall be
prepared on a consolidated and consolidating basis. The consolidating
schedules may be Borrower prepared.
(b) Within 30 days of the period's end(excluding the
last month of each fiscal quarter), the Borrower's monthly financial
statements. These financial statements may be Borrower prepared. The
statements shall be prepared on a consolidated and consolidating basis.
(c) Within 55 days of the period's end (excluding the
Fourth Fiscal Quarter), the Borrower's quarterly financial statements.
These statements shall be prepared on a consolidated and consolidating
basis.
(d) Promptly, upon sending or receipt, copies of any
management letters and correspondence relating to management letters,
sent or received by the Borrower to or from the Borrower's auditor, or,
if no management letter is prepared, a letter from such auditor stating
that no deficiencies were noted that would otherwise be addressed in a
management letter.
(e) Copies of the Borrower's Form 10-K Annual Report,
Form 10-Q Quarterly Report and Form 8-K Current Report within 30 days
after the date of filing with the Securities and Exchange Commission.
(f) Within the period(s) provided in (a) and (c)
above, a compliance certificate of the Borrower signed by an authorized
financial officer of the Borrower setting forth (i) the information and
computations (in sufficient detail) to establish that the Borrower is
in compliance with all financial covenants at the end of the period
covered by the financial statements then being furnished and (ii)
whether there existed as of the date of such financial statements and
whether there exists as of the date of the certificate, any default
under this Agreement and, if any such default exists, specifying the
nature thereof and the action the Borrower is taking and proposes to
take with respect thereto.
(g) Within 30 days after the Borrower's fiscal year
end, Borrower's financial projections and budget, including capital
expenditures, for the following fiscal year.
(h) Promptly upon the Bank's request, such other
books, records, statements, lists of property and accounts, budgets,
forecasts or reports as to the Borrower and as to each guarantor of the
Borrower's obligations to the Bank as the Bank may request.
8.3 Tangible Net Worth. To maintain on a consolidated basis
Tangible Net Worth equal to at least the sum of the following:
(a) One hundred five million dollars ($105,000,000); plus
(b) the sum of 50% of net income after income taxes (without
subtracting losses) earned in each quarterly accounting period
commencing after March 31, 2001; plus
(c) the net proceeds from any equity securities issued for cash
after the date of this Agreement.
"Tangible net worth" means the value of the Borrower's total assets (including
leaseholds and leasehold improvements and reserves against assets but excluding
goodwill, patents, trademarks, trade names, organization expense, unamortized
debt discount and expense, capitalized or deferred research and development
costs, deferred marketing expenses, and other like intangibles, and monies due
from affiliates, officers, directors, employees, shareholders, members or
managers of the Borrower) less total liabilities, including but not limited to
accrued and deferred income taxes, but excluding the non-current portion of
Subordinated Liabilities.
"Subordinated Liabilities" means liabilities subordinated to the Borrower's
obligations to the Bank in a manner acceptable to the Bank in its sole
discretion.
8.4 Profitability. Not to incur on a consolidated basis, a net
loss before taxes and extraordinary items in any two consecutive quarterly
accounting periods.
8.5 Minimum EBITDA . To maintain on a consolidated basis
EBITDA indicated for each cumulative period specified below:
Period Minimum EBITDA
From April 1, 2001
through June 30, 2001 $1,000,000
From April 1, 2001
through September 30, 2001 $3,250,000
From April 1, 2001
through December 31, 2001 $6,000,000
From January 1, 2002
through March 31, 2002 $3,000,000
"EBITDA" means net income, less income or plus loss from discontinued
operations and extraordinary items, plus income taxes, plus interest expense,
plus depreciation, depletion, amortization and other non-cash charges.
8.6 Minimum Liquidity. To have immediately available liquidity
of at least twenty million dollars ($20,000,000) (i) on the date of closing
immediately following the closing of each and every stock redemption of the
Borrower, and (ii) on the date 30 days following the date of closing, of each
and every stock redemption of the Borrower. Borrower shall, on the dates
provided in (i) and (ii) provide the Bank with a compliance certificate of the
Borrower signed by an authorized financial officer of the Borrower, setting
forth the information and computations (in sufficient detail) to establish that
the Borrower is in compliance with this financial covenant.
"Liquidity" means and shall be composed of cash, marketable securities and/or
availability under the Commitment.
8.7 Capital Expenditures. Not to spend or incur obligations
(including the total amount of any capital leases) for more than Five Million
Dollars ($5,000,000) in the period from July 1, 2001 to June 30, 2002 to acquire
fixed assets.
8.8 Other Debts. Not to have outstanding or incur any direct
or contingent liabilities or capital lease obligations (other than those to the
Bank), or become liable for the liabilities of others, without the Bank's
written consent. This does not prohibit:
(a) Acquiring goods, supplies, or merchandise on
normal trade credit.
(b) Endorsing negotiable instruments received in the
usual course of business.
(c) Obtaining surety bonds in the usual course of
business.
(d) Liabilities and capital leases in existence on
the date of this Agreement disclosed in writing to the Bank.
(e) Additional debts and lease obligations for the
acquisition of fixed assets, to the extent permitted elsewhere in this
Agreement.
(f) Additional debts and lease obligations for
business purposes which, together with the debts permitted under
subparagraph(s) (a) through (e), above, do not exceed a total principal
amount of one million Dollars ($1,000,000) outstanding at any one time.
8.9 Other Liens. Not to create, assume, or allow any
security interest or lien (including judicial liens) on property the Borrower
now or later owns, except:
(a) Liens and security interests in favor of the
Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement
disclosed in writing to the Bank.
(d) Additional purchase money security interests
inequipment or other personal property fixed assets or real property
acquired after the date of this Agreement, if the total principal
amount of debts secured by such liens does not exceed one million
Dollars ($1,000,000) at any one time.
8.10 Loans and Investments. Not to have any existing, or make
any new, loans or other extensions of credit to, or investments in, any
individual or entity, or make any capital contributions or other transfers of
assets to, any individual or entity, except for:
(a) extensions of credit in the nature of accounts
receivable or notes receivable arising from the sale or lease of goods
or services in the ordinary course of business to non-affiliated
entities.
(b) investments in any of the following:
(i) certificates of deposit;
(ii) U.S. treasury bills and other
obligations of the federal government;
(iii) readily marketable securities
(including commercial paper, but excluding restricted stock
and stock subject to the provisions of Rule 144 of the
Securities and Exchange Commission) rated at least "A" by
Standard & Poor's or at least "A" by Xxxxx'x Investors
Service, Inc.;
8.11 Notices to Bank. To promptly notify the Bank in writing
of:
(a) any lawsuit over Five hundred thousand Dollars
($500,000) against the Borrower (or any guarantor).
(b) any substantial dispute between the Borrower (or
any guarantor) and any government authority.
(c) any event of default under this Agreement, or any
event which, with notice or lapse of time or both, would constitute an
event of default.
(d) any material adverse change in the Borrower's (or
any guarantor's) business condition (financial or otherwise),
operations, properties or prospects, or ability to repay the credit.
(e) any change in the Borrower's name, legal
structure, place of business, or chief executive office if the Borrower
has more than one place of business.
(f) any actual contingent liabilities of the Borrower
(or any guarantor), and any such contingent liabilities which are
reasonably foreseeable, where such liabilities are in excess of one
hundred million Dollars ($100,000,000) in the aggregate.
(h) the receipt of any notice or communication
regarding (i) any threatened or pending investigation or enforcement
action by any governmental authority or any other claim relating to
health, safety, the environment, or any hazardous substances with
regard to the Borrower's property, activities, or operations or (ii)
any belief or suspicion of the Borrower that hazardous substances exist
on or under the Borrower's real property.
8.12 Books and Records. To maintain adequate books and
records.
8.13 Audits. To allow the Bank and its agents to inspect the
Borrower's properties and examine, audit, and make copies of books and records
during normal business hours and upon reasonable notice. If any of the
Borrower's properties, books or records are in the possession of a third party,
the Borrower authorizes that third party to permit the Bank or its agents to
have access to perform inspections or audits and to respond to the Bank's
requests for information concerning such properties, books and records.
8.14 Compliance with Laws. To comply with the laws (including
any fictitious name statute), regulations, and orders of any government body
with authority over the Borrower's business.
8.15 Preservation of Rights. To maintain and preserve all
rights, privileges, and franchises the Borrower now has.
8.16 Maintenance of Properties. To make any repairs, renewals,
or replacements to keep the Borrower's properties in good working condition.
8.17 Perfection of Liens. To help the Bank perfect and protect
its security interests and liens, and reimburse it for related costs it incurs
to protect its security interests and liens.
8.18 Cooperation. To take any action reasonably requested by
the Bank to carry out the intent of this Agreement.
8.19 General Business Insurance. To maintain insurance
satisfactory to the Bank as to amount, nature and carrier covering property
damage (including loss of use and occupancy) to any of the Borrower's
properties, public liability insurance including coverage for contractual
liability, product liability and workers' compensation, and any other insurance
which is usual for the Borrower's business.
8.20 Additional Negative Covenants. Not to, without the
Bank's written consent:
(a) engage in any business activities substantially
different from the Borrower's present business.
(b) liquidate or dissolve the Borrower's business.
(c) enter into any consolidation, merger, or other
combination, or become a partner in a partnership, a member of a joint
venture, or a member of a limited liability company provided that
Borrower may merge a wholly-owned subsidiary onto itself.
(d) except with respect to transactions with wholly
owned subsidiaries of the Borrower, sell, assign, lease, transfer or
otherwise dispose of any assets for less than fair market value, or
enter into any agreement to do so, except used, worn-out or surplus
equipment, all in the ordinary course of business.
(e) except with respect to transactions with wholly
owned subsidiaries of the Borrower, sell, assign, lease, transfer or
otherwise dispose of all or a substantial any part of the Borrower's
business or the Borrower's assets.
(f) acquire or purchase a business or its assets
(g) voluntarily suspend its business for more than
14 days in any 360 day period.
8.21 Bank as Principal Depository. To maintain the Bank as
its principal depository bank, including for the maintenance of business, cash
management, operating and administrative deposit accounts.
8.22 ERISA Plans. With respect to a Plan subject to Title IV
of ERISA, to give prompt written notice to the Bank of:
(a) The occurrence of any reportable event under
Section 4043(c) of ERISA for which the PBGC requires 30-day notice.
(b) Any action by the Borrower or any ERISA Affiliate
to terminate or withdraw from a Plan or the filing of any notice of
intent to terminate under Section 4041 of ERISA.
(c) The commencement of any proceeding with respect
to a Plan under Section 4042 of ERISA.
8.23 Compliance with Environmental Requirements. With regard
to the Borrower's and each guarantor's property, activities, or operations, to
comply with the recommendations of any qualified environmental engineer or
orders or directions issued by any governmental authority relating to health,
safety, the environment, or any hazardous substances including those orders or
directives requiring the investigation, clean-up, or removal of hazardous
substances.
9. HAZARDOUS SUBSTANCES
9.1 Indemnity Regarding Hazardous Substances. The Borrower
will indemnify and hold harmless the Bank from any loss or liability the Bank
incurs in connection with or as a result of this Agreement, which directly or
indirectly arises out of the use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal or presence of a hazardous
substance. This indemnity will apply whether the hazardous substance is on,
under or about the Borrower's property or operations or property leased to the
Borrower. The indemnity includes but is not limited to attorneys' fees
(including the reasonable estimate of the allocated cost of in-house counsel and
staff). The indemnity extends to the Bank, its parent, subsidiaries and all of
their directors, officers, employees, agents, successors, attorneys and assigns.
9.2 Definition of Hazardous Substances. "Hazardous substances"
means any substance, material or waste that is or becomes designated or
regulated as "toxic," "hazardous," "pollutant," or "contaminant" or a similar
designation or regulation under any federal, state or local law (whether under
common law, statute, regulation or otherwise) or judicial or administrative
interpretation of such, including without limitation petroleum or natural gas.
This indemnity will survive repayment of the Borrower's obligations to the Bank.
10. DEFAULT
If any of the following events occurs, the Bank may do one or
more of the following: declare the Borrower in default, stop making any
additional credit available to the Borrower, and require the Borrower to repay
its entire debt immediately and without prior notice. If an event of default
occurs under the paragraph entitled "Bankruptcy," below, with respect to the
Borrower, then the entire debt outstanding under this Agreement will
automatically be due immediately.
10.1 Failure to Pay. The Borrower fails to make a payment
under this Agreement within Five (5) days after the date when due.
10.2 Lien Priority. The Bank fails to have an enforceable
first lien on or security interest in any property given as security for this
Agreement (or any guaranty).
10.3 False Information. The Borrower or any guarantor or any
party pledging collateral to the Bank (each an "Obligor") has given the Bank
false or misleading information or representations.
10.4 Bankruptcy. The Borrower (or any Obligor) files a
bankruptcy petition, a bankruptcy petition is filed against the Borrower (or any
Obligor) or the Borrower (or any Obligor) makes a general assignment for the
benefit of creditors.
10.5 Receivers. A receiver or similar official is appointed
for a substantial portion of the Borrower's (or any Obligor's) business, or the
business is terminated, or any Obligor is liquidated or dissolved.
10.6 Lawsuits. Any lawsuit or lawsuits are filed against the
Borrower (or any Obligor) in an aggregate amount of Two Million Five Hundred
Thousand Dollars ($2,500,000) or more in excess of any insurance coverage,
provided that the insurer has issued a letter of responsibility for payment up
to the amount of insurance coverage.
10.7 Judgments. Any judgments or arbitration awards are
entered against the Borrower (or any Obligor), or the Borrower (or any Obligor)
enters into any settlement agreements with respect to any litigation or
arbitration, in an aggregate amount of Two Million Five Hundred Thousand Dollars
($2,500,000) or more in excess of any insurance coverage, provided that the
insurer has issued a letter of responsibility for payment up to the amount of
insurance coverage.
10.8 Government Action. Any government authority takes
action that the Bank believes materially adversely affects the Borrower's (or
any Obligor's) financial condition or ability to repay.
10.9 Material Adverse Change. A material adverse change
occurs, or is reasonably likely to occur, in the Borrower's (or any Obligor's)
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit; or the Bank determines that it is
insecure for any other reason.
10.10 Cross-default. Any default occurs under any agreement in
connection with any credit the Borrower (or any Obligor) or any of the
Borrower's related entities or affiliates has obtained from anyone else or which
the Borrower (or any Obligor) or any of the Borrower's related entities or
affiliates has guaranteed in the amount of Five Hundred Thousand Dollars
($500,000) or more in the aggregate where such default remains uncured for
fourteen (14) days.
10.11 Default under Related Documents. Any default occurs
under any guaranty, subordination agreement, security agreement, deed of trust,
mortgage, or other document required by or delivered in connection with this
Agreement or any such document is no longer in effect, or any guarantor purports
to revoke or disavow the guaranty.
10.12 Other Bank Agreements. The Borrower (or any Obligor) or
any of the Borrower's related entities or affiliates fails to meet any material
conditions of, or fails to perform any material obligation under any other
agreement the Borrower (or any Obligor) or any of the Borrower's related
entities or affiliates has with the Bank or any affiliate of the Bank. If, in
the Bank's opinion, the breach is capable of being remedied, the breach will not
be considered an event of default under this Agreement for a period of thirty
(30) days after the date on which the Bank gives written notice of the breach to
the Borrower; provided, however, that the Bank will not be obligated to extend
any additional credit to the Borrower during that period.
10.13 ERISA Plans. Any one or more of the following events
occurs with respect to a Plan of the Borrower subject to Title IV of ERISA,
provided such event or events could reasonably be expected, in the judgment of
the Bank, to subject the Borrower to any tax, penalty or liability (or any
combination of the foregoing) which, in the aggregate, could have a material
adverse effect on the financial condition of the Borrower:
(a) A reportable event shall occur under Section
4043(c) of ERISA with respect to a Plan.
(b) Any Plan termination (or commencement of
proceedings to terminate a Plan) or the full or partial withdrawal from
a Plan by the Borrower or any ERISA Affiliate.
10.14 Other Breach Under Agreement. The Borrower fails to meet
the conditions of, or fails to perform any obligation under, any term of this
Agreement not specifically referred to in this Article. This includes any
failure or anticipated failure by the Borrower to comply with any financial
covenants set forth in this Agreement, whether such failure is evidenced by
financial statements delivered to the Bank or is otherwise known to the Borrower
or the Bank. If, in the Bank's opinion, the breach is capable of being remedied,
the breach will not be considered an event of default under this Agreement for a
period of thirty (30) days after the date on which the Bank gives written notice
of the breach to the Borrower; provided, however, that the Bank will not be
obligated to extend any additional credit to the Borrower during that period.
11. ENFORCING THIS AGREEMENT; MISCELLANEOUS
11.1 GAAP. Except as otherwise stated in this Agreement, all
financial information provided to the Bank and all financial covenants will be
made under generally accepted accounting principles, consistently applied.
Except as otherwise stated in this Agreement, all financial covenants will be
calculated based on the Borrower's business, excluding personal assets and
liabilities.
11.2 California Law. This Agreement is governed by
California law.
11.3 Successors and Assigns. This Agreement is binding on the
Borrower's and the Bank's successors and assignees. The Borrower agrees that it
may not assign this Agreement without the Bank's prior consent. The Bank may
sell participations in or assign this loan, and may exchange financial
information about the Borrower with actual or potential participants or
assignees; provided that such actual or potential participants or assignees
shall agree to treat all financial information exchanged as confidential. If a
participation is sold or the loan is assigned, the purchaser will have the right
of set-off against the Borrower.
11.4 Arbitration and Waiver of Jury Trial.
(a) This paragraph concerns the resolution of any
controversies or claims between the Borrower and the Bank, whether
arising in contract, tort or by statute, including but not limited to
controversies or claims that arise out of or relate to: (i) this
Agreement (including any renewals, extensions or modifications); or
(ii) any document related to this Agreement (collectively a "Claim").
(b) At the request of the Borrower or the Bank, any
Claim shall be resolved by binding arbitration in accordance with the
Federal Arbitration Act (Title 9, U. S. Code) (the "Act"). The Act will
apply even though this Agreement provides that it is governed by the
law of a specified state.
(c) Arbitration proceedings will be determined in
accordance with the Act, the applicable rules and procedures for the
arbitration of disputes of JAMS or any successor thereof ("JAMS"), and
the terms of this paragraph. In the event of any inconsistency, the
terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and
conducted in any U. S. state where real or tangible personal property
collateral for this credit is located or if there is no such
collateral, in California. All Claims shall be determined by one
arbitrator; however, if Claims exceed Five Million Dollars
($5,000,000), upon the request of any party, the Claims shall be
decided by three arbitrators. All arbitration hearings shall commence
within ninety (90) days of the demand for arbitration and close within
ninety (90) days of commencement and the award of the arbitrator(s)
shall be issued within thirty (30) days of the close of the hearing.
However, the arbitrator(s), upon a showing of good cause, may extend
the commencement of the hearing for up to an additional sixty (60)
days. The arbitrator(s) shall provide a concise written statement of
reasons for the award. The arbitration award may be submitted to any
court having jurisdiction to be confirmed and enforced.
(e) The arbitrator(s) will have the authority to
decide whether any Claim is barred by the statute of limitations and,
if so, to dismiss the arbitration on that basis. For purposes of the
application of the statute of limitations, the service on JAMS under
applicable JAMS rules of a notice of Claim is the equivalent of the
filing of a lawsuit. Any dispute concerning this arbitration provision
or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal
fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of the
Borrower or the Bank to: (i) exercise self-help remedies, such as but
not limited to, setoff; (ii) initiate judicial or nonjudicial
foreclosure against any real or personal property collateral; (iii)
exercise any judicial or power of sale rights, or (iv) act in a court
of law to obtain an interim remedy, such as but not limited to,
injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary remedies.
(g) The procedure described above will not apply if
the Claim, at the time of the proposed submission to arbitration,
arises from or relates to an obligation to the Bank secured by real
property. In this case, both the Borrower and the Bank must consent to
submission of the Claim to arbitration. If both parties do not consent
to arbitration, the Claim will be resolved as follows: The Borrower and
the Bank will designate a referee (or a panel of referees) selected
under the auspices of JAMS in the same manner as arbitrators are
selected in JAMS administered proceedings. The designated referee(s)
will be appointed by a court as provided in California Code of Civil
Procedure Section 638 and the following related sections. The referee
(or the presiding referee of the panel) will be an active attorney or a
retired judge. The award that results from the decision of the
referee(s) will be entered as a judgment in the court that appointed
the referee, in accordance with the provisions of California Code of
Civil Procedure Sections 644 and 645.
(h) The filing of a court action is not intended to
constitute a waiver of the right of the Borrower or the Bank, including
the suing party, thereafter to require submittal of the Claim to
arbitration.
(i) By agreeing to binding arbitration, the parties
irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Claim. Furthermore, without intending in any way
to limit this agreement to arbitrate, to the extent any Claim is not
arbitrated, the parties irrevocably and voluntarily waive any right
they may have to a trial by jury in respect of such Claim. This
provision is a material inducement for the parties entering into this
Agreement.
11.5 Severability; Waivers. If any part of this Agreement is
not enforceable, the rest of the Agreement may be enforced. The Bank retains all
rights, even if it makes a loan after default. If the Bank waives a default, it
may enforce a later default. Any consent or waiver under this Agreement must be
in writing.
11.6 Administration Costs. The Borrower shall pay the Bank
for all reasonable costs incurred by the Bank in connection with administering
this Agreement.
11.7 Attorneys' Fees. The Borrower shall reimburse the Bank
for any reasonable costs and attorneys' fees incurred by the Bank in connection
with the enforcement or preservation of any rights or remedies under this
Agreement and any other documents executed in connection with this Agreement,
and in connection with any amendment, waiver, "workout" or restructuring under
this Agreement. In the event of a lawsuit or arbitration proceeding, the
prevailing party is entitled to recover costs and reasonable attorneys' fees
incurred in connection with the lawsuit or arbitration proceeding, as determined
by the court or arbitrator. In the event that any case is commenced by or
against the Borrower under the Bankruptcy Code (Title 11, United States Code) or
any similar or successor statute, the Bank is entitled to recover costs and
reasonable attorneys' fees incurred by the Bank related to the preservation,
protection, or enforcement of any rights of the Bank in such a case. As used in
this paragraph, "attorneys' fees" includes the allocated costs of the Bank's
in-house counsel.
11.8 One Agreement. This Agreement and any related security
or other agreements required by this Agreement, collectively:
(a) represent the sum of the understandings and
agreements between the Bank and the Borrower concerning this credit;
(b) replace any prior oral or written agreements
between the Bank and the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the
final, complete and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
11.19 Indemnification. The Borrower will indemnify and hold
the Bank harmless from any loss, liability, damages, judgments, and costs of any
kind relating to or arising directly or indirectly out of (a) this Agreement or
any document required hereunder, (b) any credit extended or committed by the
Bank to the Borrower hereunder, and (c) any litigation or proceeding related to
or arising out of this Agreement, any such document, or any such credit. This
indemnity includes but is not limited to attorneys' fees (including the
allocated cost of in-house counsel). This indemnity extends to the Bank, its
parent, subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns. This indemnity will survive repayment of the
Borrower's obligations to the Bank. All sums due to the Bank hereunder shall be
obligations of the Borrower, due and payable immediately without demand.
11.10 No Future Commitment. The Borrower acknowledges that the
Bank has made no commitment to extend any additional credit to the Borrower or
to continue the credit provided hereunder after this Agreement expires or is
terminated as provided herein.
11.11 Notices. Unless otherwise provided in this Agreement or
in another agreement between the Bank and the Borrower, all notices required
under this Agreement shall be personally delivered or sent by first class mail,
postage prepaid, or by overnight courier, to the addresses on the signature page
of this Agreement, or sent by facsimile to the fax numbers listed on the
signature page, or to such other addresses as the Bank and the Borrower may
specify from time to time in writing. Notices and other communications sent by
(a) first class mail shall be deemed delivered on the earlier of actual receipt
or on the fourth business day after deposit in the U.S. mail, postage prepaid,
(b) overnight courier shall be deemed delivered on the next business day, and
(c) telecopy shall be deemed delivered when transmitted.
11.12 Headings. Article and paragraph headings are for
reference only and shall not affect the interpretation or meaning of any
provisions of this Agreement.
11.13 Counterparts. This Agreement may be executed in as many
counterparts as necessary or convenient, and by the different parties on
separate counterparts each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
agreement.
11.14 Prior Agreement Superseded. This Agreement supersedes
the Business Loan Agreement entered into as of March 11, 1999 between the Bank
of America National Trust and Savings Association and the Borrower, and any
credit outstanding thereunder shall be deemed to be outstanding under this
Agreement.
This Agreement is executed as of the date stated at the top of the first page.
Bank of America, N.A. National R.V. Holdings, Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------- ----------------------------
Typed Name: Xxxxx Xxxxxx Typed Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President Title: Chief Financial Officer
Inland Empire Regional Commercial Banking Xx_________________________
Xxxxxx, #0000 Typed Name:_________________
0000 00xx Xxxxxx, Xxxxxx Xxxxx Title:________________________
Xxxxxxxxx, XX 00000
Facsimile: 909/781-1595 Address where notice to the
Borrower are to be sent:
0000 X. Xxxxxx Xxxx.
Xxxxxx, XX 00000
Facsimile: 909/943-6117
With Copies to
Xxxxxx, Xxxxxx White &
XxXxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
