EXHIBIT 10(vi)
REVOLVING CREDIT AGREEMENT
See attached.
Page 64 of 115
[FIRSTAR LOGO]
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement (the "AGREEMENT") is made and entered into by
and between the undersigned borrower (the "BORROWER") and the undersigned
bank (the "BANK") as of the date set forth on the last page of this Agreement.
ARTICLE 1. LOANS
1.1 REVOLVING CREDIT LOANS. From time to time prior to SEPTEMBER 30, 2001
(the "MATURITY DATE") or the earlier termination hereof, the Borrower may
borrow from the Bank for working capital and other regular and valid purposes
up to the aggregate principal amount outstanding at any one time of the
lesser of (i) $2,000,000.00 (the "LOAN AMOUNT"), or (ii) if applicable, the
BORROWING BASE (defined below). All revolving loans hereunder will be
evidenced by a single promissory note of the Borrower payable to the order of
the Bank in the principal amount of the Loan Amount (the "NOTE"). Although
the Note will be expressed to be payable in the full Loan Amount, the
Borrower will be obligated to pay only the amounts actually disbursed
hereunder, together with accrued interest on the outstanding balance at the
rates and on the dates specified therein and such other changes provided for
herein. In the event that the principal amount outstanding under the Note
exceeds the Borrowing Base at any time, the Borrower will immediately,
without request, prepay an amount sufficient to eliminate such excess.
1.2 BORROWING BASE. The Borrowing Base will be an amount equal to the sum of
(i) 75.00% of the face amount of Eligible Accounts, and (ii) the lesser of
$2,000,000.00 or 50.00% of the Borrower's cost of Eligible Inventory, as such
cost may be diminished as a result of any event causing loss or depreciation
in value of Eligible Inventory less (iii) the current outstanding loan
balance on note(s) in the original amount(s) of $ n/a, and less (iv) undrawn
amounts of outstanding letters of credit issued by Bank or any affiliate
thereof. The Borrower will provide the Bank with information regarding the
Borrowing Base in such form and at such times as the Bank may request. The
terms used in this Section 1.2 will have the meanings set forth in a
supplement entitled "Financial Definitions," a copy of which the Borrower
acknowledges having received with this Agreement and which is incorporated
herein by reference.
1.3 ADVANCES AND PAYING PROCEDURE. The Bank is authorized and directed to
credit any of the Borrower's accounts with the Bank (or to the account the
Borrower designates in writing) for all loans made hereunder, and the Bank is
authorized to debit such account or any other account of the Borrower with
the Bank for the amount of any principal or interest due under the Note or
other amount due hereunder on the due date with respect thereto. Each advance
shall be in the minimum amount of $5,000.
1.4 CLOSING FEE. The Borrower will pay the Bank a one-time closing fee of
$ n/a contemporaneously with execution of this Agreement. This fee is in
addition to all other fees, expenses and other amounts due hereunder.
1.5 LOAN FACILITY FEE. The Borrower will pay a loan facility fee equal to:
[ ] $ n/a per annum, payable annually in advance; (or)
[ ] n/a % per annum of the Loan Amount, payable annually in advance;
(or)
[ ] n/a % per annum of the difference between the Loan Amount and
the unpaid principal amount of the Note outstanding from time to
time, payable quarterly, in arrears, on the last business day of
each third calendar month, and at maturity; (or)
[ ] n/a % per annum of the unpaid principal amount of the Note
outstanding from time to time, payable quarterly, in arrears, on
the last business day of each third calendar month, and at
maturity.
The loan facility fee is payable for the entire period that this Agreement is
in effect, regardless of whether any amounts are outstanding hereunder at any
given time.
1.6 EXPENSES AND ATTORNEYS' FEES. The Borrower will reimburse the Bank and
any Participant (defined below) for all attorneys' fees and all other costs,
fees and out-of-pocket disbursements (including fees and disbursements of
both inside counsel and outside counsel) incurred by the Bank or any
Participant in connection with the preparation, execution, delivery,
administration, defense and enforcement of this Agreement or any of the other
Loan Documents (defined below), including fees and costs related to any
waivers or amendments with respect thereto (examples of costs and fees
include but are not limited to fees and costs for filing, perfecting or
confirming the priority of the Bank's lien, title searches or insurance,
appraisals, environmental audits and other reviews related to the Borrower,
any collateral or the loans, if requested by the Bank). The Borrower will
also reimburse the Bank and any Participant for all costs of collection
before and after judgment, and the costs of preservation and/or liquidation
of any collateral (including fees and disbursements of both inside and
outside counsel).
1.7 COMPENSATING BALANCES. The Borrower will maintain on deposit with the
Bank in non-interest bearing accounts average daily collected balances, in
excess of that required to support account activity and other credit
facilities extended to the Borrower by the Bank, an amount at least equal to
the sum of (i) $ n/a and (ii) n/a % of the Loan Amount as computed on a
monthly basis. If the Borrower fails to keep and maintain such balances, it
will pay a deficiency fee, payable within five days after receipt of a
statement therefor calculated on the amount by which the Borrower's average
daily balances are less than the requirements set forth above, computed at a
rate equal to the rates set forth in the Note.
1.8 CONDITIONS TO BORROWING. The Bank will not be obligated to make (or
continue to make) advances hereunder unless (i) the Bank has received
executed originals of the Note and all other documents or agreements
applicable to the loans described herein, including but not limited to the
documents specified in Article III (collectively with this Agreement the
"LOAN DOCUMENTS"), in form and content satisfactory to the Bank; (ii) if the
loan is secured, the Bank has received confirmation satisfactory to it that
the Bank has a properly perfected security interest, mortgage or lien, with
the proper priority, (iii) the Bank has received certified copies of the
Borrower's Articles of incorporation and By-Laws, or its Partnership
Agreement (as appropriate), certification of corporate or partnership status
satisfactory to the Bank and all other relevant documents; (iv) the Bank has
received a certified copy of a resolution or authorization in form and content
Page 65 of 115
satisfactory to the Bank authorizing the loan and all acts contemplated by
this Agreement and all related documents, and confirmation of proper
authorization of all guaranties and other acts of third parties contemplated
hereunder; (v) the Bank has been provided with an Opinion of the Borrower's
counsel in form and content satisfactory to the Bank confirming the matters
outlined in Section 2.2 and such other matters as the Bank requests; (vi) no
default exists under this Agreement or under any other Loan Documents, or
under any other agreements by and between the Borrower and the Bank; and
(vii) all proceedings taken in connection with the transactions contemplated
by this Agreement (including any required environment assessments), and all
instruments, authorizations and other documents applicable thereto, are
satisfactory to the Bank and its counsel.
ARTICLE II. WARRANTIES AND COVENANTS
While any part of the credit granted to the Borrower under this Agreement or
the other Loan Documents is available or any obligations under any of the
Loan Documents are unpaid or outstanding, the Borrower continuously warrants
and agrees as follows:
2.1 ACCURACY OF INFORMATION. All information, certificates or statements
given to the Bank pursuant to this Agreement and the other Loan Documents
will be true and complete when given.
2.2 ORGANIZATION AND AUTHORITY; LITIGATION. If the Borrower is a corporation
or partnership, the Borrower is a validly existing corporation or partnership
(as applicable) in good standing under the laws of its state of organization,
and has all requisite power and authority, corporate or otherwise, and
possesses all licenses necessary, to conduct its business and own its
properties. The execution, delivery and performance of this Agreement and the
other Loan Documents (i) are within the Borrower's power; (ii) have been duly
authorized by proper corporate or partnership action (as applicable); (iii)
do not require the approval of any governmental agency, other entity or
person; and (iv) will not violate any law, agreement or restriction by which
the Borrower is bound. This Agreement and the other Loan Documents are the
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their terms. There is no litigation or
administrative proceeding threatened or pending against the Borrower which
would, if adversely determined, have a material adverse effect on the
Borrower's financial condition or its property.
2.3 EXISTENCE; BUSINESS ACTIVITIES; ASSETS. The Borrower will (i) preserve
its corporate or partnership (as applicable) existence, rights and
franchises; (ii) not make any material change in the nature or manner of its
business activities; (iii) not liquidate, dissolve, merge or consolidate with
or into another entity; and (iv) not sell, lease, transfer or otherwise
dispose of all or substantially all of its assets.
2.4 USE OF PROCEEDS; MARGIN STOCK; SPECULATION. Advances by the Bank
hereunder will used exclusively by the Borrower for working capital and other
regular and valid purposes. The Borrower will not, without the prior written
consent of the Bank, redeem, purchase, or retire any of the capital stock or
declare or pay any dividends, or make any other payments or distributions of
a similar type or nature. The Borrower will not use any of the loan proceeds
to purchase or carry "margin" stock (as defined in Regulation U of the Board
of Governors of the Federal Reserve System). No part of any of the proceeds
will be used for speculative investment purposes, including, without
limitation, speculating or hedging in the commodities and/or futures market.
2.5 ENVIRONMENTAL MATTERS. Except as disclosed in a written schedule attached
to this Agreement (if no schedule is attached, there are no exceptions),
there exists no uncorrected violation by the Borrower of any federal, state
or local laws (including statutes, regulations, ordinances or other
governmental restrictions and requirements) relating to the discharge of air
pollutants, water pollutants or process waste water or otherwise relating to
the environment or Hazardous Substances as hereinafter defined, whether such
laws currently exist or are enacted in the future (collectively
"ENVIRONMENTAL LAWS"). The term "HAZARDOUS SUBSTANCES" will mean any
hazardous or toxic wastes, chemicals or other substances, the generation,
possession or existence of which is prohibited or governed by any
Environmental Laws. The Borrower is not subject to any judgment, decree,
order or citation, or a party to (or threatened with) any litigation or
administrative proceeding, which asserts that the Borrower (i) has violated
any Environmental Laws; (ii) is required to clean up, remove or take remedial
or other action with respect to any Hazardous Substances (collectively
"REMEDIAL ACTION"); or (iii) is required to pay all or a portion of the cost
of any Remedial Action, as a potentially responsible party. Except as
disclosed on the Borrower's environmental questionnaire provided to the Bank,
there are not now, nor to the Borrower's knowledge after reasonable
investigation have there ever been, any Hazardous Substances (or tanks or
other facilities for the storage of Hazardous Substances) stored, deposited,
recycled or disposed of on, under or at any real estate owned or occupied by
the Borrower during the periods that the Borrower owned or occupied such real
estate, which if present on the real estate or in soils or ground water,
could require Remedial Action. To the Borrower's knowledge, there are no
proposed or pending changes in Environmental Laws which would adversely
affect the Borrower or its business, and there are no conditions existing
currently or likely to exist while the Loan Documents are in effect which
would subject the Borrower to Remedial Action or other liability. The
Borrower currently complies with and will continue to timely comply with all
applicable Environmental Laws; and will provide the Bank, immediately upon
receipt, copies of any correspondence, notice, complaint, order or other
document from any source asserting or alleging any circumstance or condition
which requires or may require a financial contribution by the Borrower or
Remedial Action or other response by or on the part of the Borrower under
Environmental Laws, or which seeks damages or civil, criminal or punitive
penalties from the Borrower for an alleged violation of Environmental Laws.
2.6 COMPLIANCE WITH LAWS. The Borrower has complied with all laws applicable
to its business and its properties, and has all permits, licenses and
approvals required by such laws, copies of which have been provided to the
Bank.
2.7 RESTRICTION ON INDEBTEDNESS. The Borrower will not create, incur, assume
or have outstanding any indebtedness for borrowed money (including
capitalized leases) except (i) any indebtedness owing to the Bank, and (ii)
any other indebtedness outstanding on the date hereof, and shown on the
Borrower's financial statements delivered to the Bank prior to the date
hereof, provided that such other indebtedness will not be increased.
2.8 RESTRICTION ON LIENS. The Borrower will not create, incur, assume or
permit to exist any mortgage, pledge, encumbrance or other lien or levy upon
or security interest in any of the Borrower's property now owned or hereafter
acquired, except (i) taxes and assessments which are either not delinquent or
which are being contested in good faith with adequate reserves provided; (ii)
easements, restrictions and minor title irregularities which do not, as a
practical matter, have an adverse effect upon the ownership and use of the
affected property; (iii) liens in favor of the Bank; and (iv) other liens
disclosed in writing to the Bank prior to the date hereof.
2.9 RESTRICTION ON CONTINGENT LIABILITIES. The Borrower will not guarantee or
become a surety or otherwise contingently liable for any obligations of
others, except pursuant to the deposit and collection of checks and similar
matters in the ordinary course of business.
Page 66 of 115
2.10 INSURANCE. The Borrower will maintain insurance to such extent, covering
such risks and with such insurers as is usual and customary for businesses
operating similar properties, and as is satisfactory to the Bank, including
insurance for fire and other risks insured against by extended coverage, public
liability insurance and workers' compensation insurance; and will designate the
Bank as loss payee with a "Lender's Loss Payable" endorsement on any casualty
policies and take such other action as the Bank may reasonably request to
ensure that the Bank will receive (subject to no other interests) the insurance
proceeds on the Bank's collateral.
2.11 TAXES AND OTHER LIABILITIES. The Borrower will pay and discharge, when
due, all of its taxes, assessments and other liabilities, except when the
payment thereof is being contested in good faith by appropriate procedures
which will avoid foreclosure of liens securing such items, and with adequate
reserves provided therefor.
2.12 FINANCIAL STATEMENTS AND REPORTING. The financial statements and other
information previously provided to the Bank or provided to the Bank in the
future are or will be complete and accurate and prepared in accordance with
generally accepted accounting principles. There has been no material adverse
change in the Borrower's financial condition since such information was
provided to the Bank. The Borrower will (i) maintain accounting records in
accordance with generally recognized and accepted principles of accounting
consistently applied throughout the accounting periods involved; (ii) provide
the Bank with such information concerning its business affairs and financial
condition (including insurance coverage) as the Bank may request; and (iii)
without request, provide the Bank with management-prepared financial statements:
/X/ quarterly within 30 days of the end of each quarter;
/ / monthly within n/a days of the end of each month;
and annual audited financial statements prepared by an accounting firm
acceptable to the Bank within 120 days of the end of each fiscal year.
2.13 INSPECTION OF PROPERTIES AND RECORDS; FISCAL YEAR. The Borrower will
permit representatives of the Bank to visit and inspect any of the properties
and examine any of the books and records of the Borrower at any reasonable time
and as often as the Bank may reasonably desire. The Borrower will not change
its fiscal year.
2.14 FINANCIAL STATUS. The Borrower will maintain at all times:
(i) Net Working Capital in the amount of at least (v) Capital Expenditures not to exceed $400,000.00 per fiscal year.
$ n/a.
(ii) Tangible Net Worth in the amount of at least (vi) Cash Flow Coverage Ratio of at least n/a.
$4,750,000.00.
(iii) Debt to Worth Ratio of not more than (vii) Officers, Directors, Partners, and Management Salaries and Other
2.25 TO 1. Compensation not to exceed $ n/a per fiscal year.
(iv) Current Ratio of at least n/a.
The terms used in this Section 2.14 will have the meanings set forth in a
supplement entitled "Financial Definitions," a copy of which the Borrower
hereby acknowledges having received with this Agreement and which is
incorporated herein by reference.
2.15 PAID-IN-FULL PERIOD. / / If checked here, all revolving loans under this
Agreement and the Note must be paid in full for a period of at least n/a
consecutive days during each fiscal year.
ARTICLE III. COLLATERAL AND GUARANTIES
3.1 COLLATERAL. This Agreement and the Note are secured by any and all
security interests, pledges, mortgages or liens now or hereafter in existence
granted to the Bank to secure indebtedness of the Borrower to the Bank,
including without limitation as described in the following documents:
/ / Real Estate Mortgage(s)/Deed(s) of Trust dated ___________________________
covering real estate located at __________________________________________
__________________________________________________________________________
/X/ Security Agreement(s) dated 09/26/00
/ / Collateral Pledge Agreement(s) dated _____________________________________
/ / Other ____________________________________________________________________
__________________________________________________________________________
3.2 GUARANTIES. This loan is guaranteed by UNIVERSAL DISTRIBUTION LLC
UNIVERSAL MFG. CO.
3.3 CREDIT BALANCES; SETOFF. As additional security for the payment of the
obligations described in the Loan Documents and any other obligations of the
Borrower to the Bank of any nature whatsoever (collectively the "OBLIGATIONS"),
the Borrower hereby grants to the Bank a security interest in, a lien on and an
express contractual right to set off against all depository account balances,
cash and any other property of the Borrower now or hereafter in the possession
of the Bank and the right to refuse to allow withdrawals from any account
(collectively "SETOFF"). The Bank may, at any time upon the occurrence of a
default hereunder (notwithstanding any notice requirements or grace/cure
periods under this or other agreements between the Borrower and the Bank)
Setoff against the Obligations WHETHER OR
Page 67 of 115
NOT THE OBLIGATIONS (INCLUDING FUTURE INSTALLMENTS) ARE THEN DUE OR HAVE BEEN
ACCELERATED, ALL WITHOUT ANY ADVANCE OR CONTEMPORANEOUS NOTICE OR DEMAND OF
ANY KIND TO THE BORROWER, SUCH NOTICE AND DEMAND BEING EXPRESSLY WAIVED.
The information in this Article III is for information only and the omission of
any reference to an agreement will not affect the validity or enforceability
thereof. The rights and remedies of the Bank outlined in this Agreement and the
documents identified above are intended to be cumulative.
ARTICLE IV. DEFAULTS
4.1 DEFAULTS. NOTWITHSTANDING ANY CURE PERIODS DESCRIBED BELOW, THE BORROWER
WILL IMMEDIATELY NOTIFY THE BANK IN WRITING WHEN THE BORROWER OBTAINS KNOWLEDGE
OF THE OCCURRENCE OF ANY DEFAULT SPECIFIED BELOW. Regardless of whether the
Borrower has given the required notice, the occurrence of one or more of the
following will constitute a default:
(a) NONPAYMENT. The Borrower shall fail to pay (i) any interest due on the
Note or any fees, charges, costs or expenses under the Loan Documents by
5 days after the same becomes due; or (ii) any principal amount of the
Note when due.
(b) NONPERFORMANCE. The Borrower or any guarantor of Borrower's Obligations
to the Bank ("GUARANTOR") shall fail to perform or observe any agreement,
term, provision, condition, or covenant (other than a default occurring
under (a), (c), (d), (e), (f), or (g) of this Section 4.1) required to be
performed or observed by the Borrower or any Guarantor hereunder or under
any other Loan Document or other agreement with or in favor of the Bank.
(c) MISREPRESENTATION. Any financial information, statement, certificate,
representation or warranty given to the Bank by the Borrower or any
Guarantor (or any of their representatives) in connection with entering
into this Agreement or the other Loan Documents and/or any borrowing
thereunder, or required to be furnished under the terms thereof, shall
prove untrue or misleading in any material respect (as determined by the
Bank in the exercise of its judgment) as of the time when given.
(d) DEFAULT ON OTHER OBLIGATIONS. The Borrower or any Guarantor shall be in
default under the terms of any loan agreement, promissory note, lease,
conditional sale contract or other agreement, document or instrument
evidencing, governing, or securing any indebtedness owing by the Borrower
or any Guarantor to the Bank or any indebtedness in excess of $10,000
owing by the Borrower to any third party, and the period of grace, if
any, to cure said default shall have passed.
(e) JUDGMENTS. Any judgment shall be obtained against the Borrower or any
Guarantor which, together with all other outstanding unsatisfied
judgments against the Borrower (or such Guarantor), shall exceed the sum
of $10,000 and shall remain unvacated, unbonded or unstayed for a period
of 30 days following the date of entry thereof.
(f) INABILITY TO PERFORM; BANKRUPTCY/INSOLVENCY. (i) The Borrower or any
Guarantor shall die or cease to exist; or (ii) any Guarantor shall attempt
to revoke any guaranty of the Obligations described herein, or any
guaranty becomes unenforceable in whole or in part for any reason; or
(iii) any bankruptcy, insolvency or receivership proceedings, or an
assignment for the benefit of creditors, shall be commenced under any
Federal or state law by or against the Borrower or any Guarantor; or (iv)
the Borrower or any Guarantor shall become the subject of any out-of-court
settlement with its creditors; or (v) the Borrower or any Guarantor is
unable or admits in writing its inability to pay its debts as they mature.
(g) ADVERSE CHANGE; INSECURITY. (i) There is a material adverse change in
the business, properties, financial condition or affairs of the Borrower
or any Guarantor, or in any collateral securing the Obligations, or (ii)
the Bank in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure.
4.2 TERMINATION OF LOANS; ADDITIONAL BANK RIGHTS. Upon the Maturity Date or
the occurrence of any of the events identified in Section 4.1, the Bank may at
any time (notwithstanding any notice requirements or grace/cure periods under
this or other agreements between the Borrower and the Bank) (i) immediately
terminate its obligation, if any, to make additional loans to the Borrower;
(ii) Setoff; and/or (iii) take such other steps to protect or preserve the
Bank's interest in any collateral, including without limitation, notifying
account debtors to make payments directly to the Bank, advancing funds to
protect any collateral and insuring collateral at the Borrower's expense; all
without demand or notice of any kind, all of which are hereby waived.
4.3 ACCELERATION OF OBLIGATIONS. Upon the Maturity Date or the occurrence of
any of the events identified in Sections 4.1(a) through 4.1(e) and 4.1(g), and
the passage of any applicable cure periods, the Bank may at any time
thereafter, by written notice to the Borrower, declare the unpaid principal
balance of any Obligations, together with the interest accrued thereon and
other amounts accrued hereunder and under the other Loan Documents, to be
immediately due and payable; and the unpaid balance will thereupon be due and
payable, all without presentation, demand, protest or further notice of any
kind, all of which are hereby waived, and notwithstanding anything to the
contrary contained herein or in any of the other Loan Documents. Upon the
occurrence of any event under Section 4.1(f), the unpaid principal balance of
any Obligations, together with all interest accrued thereon and other amounts
accrued hereunder and under the other Loan Documents, will thereupon be
immediately due and payable, all without presentation, demand, protest or
notice of any kind, all of which are hereby waived, and notwithstanding
anything to the contrary contained herein or in any of the other Loan
Documents. NOTHING CONTAINED IN SECTION 4.1, SECTION 4.2 OR THIS SECTION WILL
LIMIT THE BANK'S RIGHT TO SETOFF AS PROVIDED IN SECTION 3.3 OR OTHERWISE IN
THIS AGREEMENT.
4.4 OTHER REMEDIES. Nothing in this Article IV is intended to restrict the
Bank's rights under any of the Loan Documents or at law, and the Bank may
exercise all such rights and remedies as and when they are available.
Page 68 or 115
ARTICLE V. OTHER TERMS
5.1 FINANCIAL DEFINITIONS SUPPLEMENT. If a Borrowing Base or covenants
regarding financial status apply to this loan, the "FINANCIAL DEFINITIONS"
Supplement identified in Sections 1.2 and 2.14 of this Agreement is hereby
incorporated into this Agreement. The Borrower acknowledges receiving a copy
of such Supplement.
5.2 ADDITIONAL TERMS; ADDENDUM/SUPPLEMENTS. The warranties, covenants,
conditions and other terms described in this Section and/or in the Addendum
and/or other attached document(s) referenced in this Section are incorporated
into this Agreement:
SEE ATTACHED ADDENDUM
ARTICLE VI. MISCELLANEOUS
6.1 DELAY; CUMULATIVE REMEDIES. No delay on the part of the Bank in
exercising any right, power or privilege hereunder or under any of the other
Loan Documents will operate as a waiver thereof, nor will any single or partial
exercise of any right, power or privilege hereunder preclude other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein specified are cumulative and are not exclusive of
any rights or remedies which the Bank would otherwise have.
6.2 RELATIONSHIP TO OTHER DOCUMENTS. The warranties, covenants and other
obligations of the Borrower (and the rights and remedies of the Bank) that
are outlined in this Agreement and the other Loan Documents are intended to
supplement each other. In the event of any inconsistencies in any of the
terms in the Loan Documents, all terms will be cumulative so as to give the
Bank the most favorable rights set forth in the conflicting documents, except
that if there is a direct conflict between any preprinted terms and
specifically negotiated terms (whether included in an addendum or otherwise),
the specifically negotiated terms will control.
6.3 PARTICIPATIONS; GUARANTORS. The Bank may, at its option, sell all or
any interests in the Note and other Loan Documents to other financial
institutions (the "PARTICIPANT"), and in connection with such sales (and
thereafter) disclose any financial information the Bank may have concerning
the Borrower to any such Participant or potential Participant. From time to
time, the Bank may, in its discretion and without obligation to the Borrower,
any guarantor or any other third party, disclose information about the
Borrower and this loan to any guarantor, surety or other accommodation party.
This provision does not obligate the Bank to supply any information or
release the Borrower from its obligation to provide such information, and the
Borrower agrees to keep all Guarantors advised of its financial condition and
other matters which may be relevant to the Guarantors' obligations to the
Bank.
6.4 SUCCESSORS. The rights, options, powers and remedies granted in this
Agreement and the other Loan Documents will extend to the Bank and to its
successors and assigns, will be binding upon the Borrower and its successors
and assigns and will be applicable hereto and to all renewals and/or
extensions hereof.
6.5 INDEMNIFICATION. Except for harm arising from the Bank's willful
misconduct, the Borrower hereby indemnifies and agrees to defend and hold the
Bank harmless from any and all losses, costs, damages, claims and expenses of
any kind suffered by or asserted against the Bank relating to claims by third
parties arising out of the financing provided under the Loan Documents or
related to any collateral (including, without limitation, the Borrower's
failure to perform its obligations relating to Environmental Matters
described in Section 2.5 above). This indemnification and hold harmless
provision will survive the termination of the Loan Documents and the
satisfaction of the Obligations due the Bank.
6.6 NOTICE OF CLAIMS AGAINST BANK; LIMITATION OF CERTAIN DAMAGES. In order
to allow the Bank to mitigate any damages to the Borrower from the Bank's
alleged breach of its duties under the Loan Documents or any other duty, if
any, to the Borrower, the Borrower agrees to give the Bank immediate written
notice of any claim or defense it has against the Bank, whether in tort or
contract, relating to any action or inaction by the Bank under the Loan
Documents, or the transactions related thereto, or of any defense to payment
of the Obligations for any reason. The requirement of providing timely
notice to the Bank represents the parties' agreed-to standard of performance
regarding claims against the Bank. Notwithstanding any claim that the
Borrower may have against the Bank, and regardless of any notice the Borrower
may have given the Bank, THE BANK WILL NOT BE LIABLE TO THE BORROWER FOR
CONSEQUENTIAL AND/OR SPECIAL DAMAGES ARISING THEREFROM, EXCEPT THOSE DAMAGES
ARISING FROM THE BANK'S WILLFUL MISCONDUCT.
6.7 NOTICES. Although any notice required to be given hereunder or under
any of the other Loan Documents might be accomplished by other means, notice
will always be deemed given when placed in the United States Mail, with
postage prepaid, or sent by overnight delivery service, or sent by telex or
facsimile, in each case to the address set forth below or as amended.
6.8 PAYMENTS. Payments due under the Note and other Loan Documents will be
made in lawful money of the United States, and the Bank is authorized to
charge payments due under the Loan Documents against any account of the
Borrower. All payments may be applied by the Bank to principal, interest and
other amounts due under the Loan Documents in any order which the Bank elects.
Page 69 of 115 11/99
6.9 APPLICABLE LAW AND JURISDICTION; INTERPRETATION; JOINT LIABILITY. This
Agreement and all other Loan Documents will be governed by and interpreted in
accordance with the internal laws of the State of Iowa, except to the extent
superseded by Federal Law. Invalidity of any provisions of this Agreement
will not affect any other provision. THE BORROWER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN THE COUNTY
OR FEDERAL JURISDICTION OF THE BANK'S BRANCH WHERE THE LOAN WAS ORIGINATED,
AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY
ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTE
THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR ANY TRANSACTIONS ARISING
THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
Nothing herein will affect the Bank's rights to serve process in any manner
permitted by law, or limit the Bank's right to bring proceedings against the
Borrower in the competent courts of any other jurisdiction or jurisdictions.
This Agreement, the other Loan Documents and any amendments hereto
(regardless of when executed) will be deemed effective and accepted only upon
the Bank's receipt of the executed originals thereof. If there is more than
one Borrower, the liability of the Borrowers will be joint and several, and
the reference to "Borrower" will be deemed to refer to all Borrowers.
6.10 COPIES; ENTIRE AGREEMENT; MODIFICATION. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all other Loan
Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS
OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY
ENFORCED. THE TERMS OF THIS AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER
CREDIT AGREEMENTS NOW IN EFFECT BETWEEN BORROWER AND THE BANK. A MODIFICATION
OF ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN BORROWER AND THE BANK,
WHICH OCCURS AFTER RECEIPT BY BORROWER OF THIS NOTICE, MAY BE MADE ONLY BY
ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED MODIFICATIONS TO SUCH CREDIT
AGREEMENTS ARE NOT ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
6.11 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY JOINTLY AND
SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING RRELATING TO ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS THEREUNDER,
ANY COLLATERAL SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM
OR CONNECTED THERETO. THE BORROWER AND THE BANK EACH REPRESENTS TO THE OTHER
THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
6.12 ATTACHMENTS. All documents attached hereto, including any appendices,
schedules, riders, and exhibits to this Agreement, are hereby expressly
incorporated by reference.
IN WITNESS WHEREOF, the undersigned have executed this REVOLVING CREDIT
AGREEMENT as of SEPTEMBER 26, 2000.
(Individual Borrower) RAINBO COMPANY LLC
------------------------------------------
Borrower Name (Organization)
(SEAL) a NEBRASKA limited liability company
---------------------------- ----------------------------------------
Borrower Name N/A By Universal Mfg. Co., Manager
-------------- ---------------------------------------
Name and Title ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
(SEAL) ----------------------------
---------------------------- By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Borrower Name N/A Name and Title
-------------- ----------------------------
FIRSTAR BANK, N.A. (Bank)
------------------------------------------
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name and Title ▇▇▇▇ ▇▇▇▇▇▇, SENIOR VICE
PRESIDENT
---------------------------
Borrower Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
--------------------------------------------------------------
--------------------------------------------------------------
Borrower Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
--------------------------------------------------------
Page 70 of 115 11/99
[LOGO]
ADDENDUM TO REVOLVING CREDIT AGREEMENT
This Addendum is made part of the Revolving Credit Agreement (the
"AGREEMENT") made and entered into by and between the undersigned borrower
(the "BORROWER") and the undersigned bank (the "BANK") as of the date
identified below. The warranties, covenants and other terms described below
are hereby added to the Agreement.
GUARANTOR FINANCIAL REPORTING. IN ADDITION TO THE OTHER FINANCIAL
REPORTING REQUIREMENTS OUTLINED IN THE LOAN DOCUMENTS, THE BORROWER WILL
ASSURE THAT ALL GUARANTORS PROVIDE THE BANK WITH COPIES OF ALL THEIR
FINANCIAL STATEMENTS IN FORM ACCEPTABLE TO THE BANK [ ] AND THEIR TAX
RETURNS (CHECK IF APPLICABLE) FOR THEIR CALENDAR OR FISCAL YEAR END, AS
APPROPRIATE, WITHIN 120 DAYS AFTER THE END OF SUCH YEAR. FAILURE TO
PROVIDE THIS FINANCIAL INFORMATION WILL CONSTITUTE A DEFAULT UNDER THE
TERMS OF THE AGREEMENT.
BORROWER SHALL MAINTAIN OR PROVIDE AT ALL TIMES:
1) BORROWER AGREES NOT TO GRANT ANY SECURITY INTEREST IN ANY REAL PROPERTY
WITHOUT PRIOR WRITTEN CONSENT OF THE BANK.
2) ALL FINANCIAL COVENANTS FOR THIS LOAN AGREEMENT WILL BE MEASURED ON A
COMBINED BASIS WITH UNIVERSAL DISTRIBUTION, LLC, AND RAINBO COMPANY, LLC.
3) ADDITIONAL BORROWING BASE TERMS: a) ELIGIBLE INVENTORY TO INCLUDED
LIFO RESERVES TIMES (X) 30% b) ELIGIBLE BORROWINGS TO BE REDUCED BY ALL
BALANCES DUE TO FORD MOTORCRAFT AND AC/DELCO.
Dated as of SEPTEMBER 26, 2000
--------------------
(Individual Borrower) RAINBO COMPANY LLC
----------------------------------------
Borrower Name (Organization)
___________________________(SEAL) a NEBRASKA limited liability company
--------------------------------------
Borrower Name N/A
------------------- By Universal Mfg. Co., Manager
-------------------------------------
___________________________(SEAL) Name and Title ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Borrower Name N/A
------------------- By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name and Title
--------------------------
FIRSTAR BANK, N.A. (Bank)
-----------------------------------
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name and Title ▇▇▇▇ ▇▇▇▇▇▇, SENIOR
--------------------------
VICE PRESIDENT
--------------------------
Page 71 or 115
[LOGO]
LIMITED LIABILITY COMPANY RIDER
This Limited Liability Company Rider (the "Rider") is made part of the
Revolving Credit Agreement (the "Agreement") made and entered into by and
between the undersigned borrower (the "Borrower") and the undersigned bank (the
"Bank") as of the date of the Agreement. The representations, warranties,
covenants and other terms described below are hereby added to the Agreement.
Except as specifically provided herein, the Agreement shall remain in full force
and effect in accordance with its terms.
1. LIMITED LIABILITY COMPANY. All references in the Agreement to
"corporation", "corporate", "Articles of Incorporation and By-Laws", and
"partnership" are deleted and replaced with "limited liability company",
"limited liability company", "Articles of Organization and operating
agreement, if any, of the Borrower", and "Limited Liability Company"
respectively.
2. LIMITED LIABILITY COMPANY COVENANTS During the term of this Agreement
and except as provided below, Borrower will not: (a) amend its Articles of
Organization or Operating Agreement in any manner that may conflict with any
term or condition of the Agreement; (b) take any action to withdraw the
authority of or to limit or restrict the authority of any person authorized to
deal and contract with Bank and to bind and obligate Borrower; (c) merge or
consolidate with, or transfer all or any material portion of its assets and
properties to, any other entity; (d) permit any Member to withdraw from Borrower
or to receive any type of withdrawal distribution; (e) pay any distribution to
any Member, except as agreed to by the Bank; or (f) waive, compromise or forego
any rights that Borrower may have against any Member for any obligation owed the
Borrower, including capital contributions. None of the above actions shall be
effective against Bank unless and until Borrower shall notify Bank in writing
and Bank shall have expressly agreed to such actions in writing. Any
distribution by Borrower in violation of this Agreement shall be considered a
wrongful distribution for purposes of the Limited Liability Company Law of the
state in which Borrower is organized, and an event of default under the
Agreement.
3. LIMITED LIABILITY COMPANY REPRESENTATIONS AND WARRANTIES. Borrower
represents and warrants to Bank that (a) the execution of the Agreement does
not and will not conflict with or result in a violation of any operating
agreement of the Borrower; (b) no event causing dissolution or dissociation has
occurred and Borrower has no knowledge of any event, which with the passage of
time or the giving of notice or both would result in dissolution or
dissociation; (c) Borrower has not dissolved and is not winding up or
liquidating its business; (d) Borrower has not filed articles of dissolution
with the secretary of state; and (e) Borrower has not delivered notice of
dissolution to any claimant.
4. DEFAULT. The following shall be added to the Agreement as additional
events of default:
(i) The Borrower is dissolved or files articles of dissolution or
gives notice of dissolution to any claimant; (ii) an event occurs which results
in the dissociation of any Member of the Borrower; (iii) the Borrower shall
default in the performance of any agreement, provision or covenant of this
Rider; or (iv) any representation given in this Rider to the Bank by the
Borrower shall prove untrue (as determined by the Bank in the exercise of its
reasonable judgment) as of the time when given.
5. AUTHORIZATION. Borrower represents and warrants to the Bank that the
execution, delivery and performance of the terms of this Rider is within the
power of the Borrower and has been duly authorized by all necessary action.
Dated as of SEPTEMBER 26, 2000.
--------------------
(Individual Borrower) RAINBO COMPANY LLC
-------------------------------------------
Borrower Name (Organization)
___________________________(SEAL) a NEBRASKA limited liability company
-----------------------------------------
Borrower Name n/a
------------------- By Universal Mfg. Co., Manager
----------------------------------------
___________________________(SEAL) Name and Title ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
----------------------------
Borrower Name n/a
------------------- By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name and Title
-----------------------------
FIRSTAR BANK, N.A. (Bank)
-------------------------------------
By /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name and Title ▇▇▇▇ ▇▇▇▇▇▇, SENIOR
--------------------------
VICE PRESIDENT
--------------------------
Page 72 or 115
