loan and security agreement.doc
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1、LOAN AND SECURITY AGREEMENTCOMPANY XYZ, INC., a California corporationBorrower100 Twin Peaks DriveSuite 600Baywatch, CA 94001Address74-6667422Borrower Fed ID Tax No.$14,100,000Credit LimitNovember _, 1999CORPORATE FINANCETHIS LOAN AND SECURITY AGREEMENT (collectively with the Schedule to Loan Agreem
2、ent (the “Schedule”) attached hereto, the “Agreement”) dated the date set forth on the cover page, is entered into by and between the borrower named on the cover page (jointly and severally, the “Borrower”), whose address is set forth on the cover page and ABC BANK Capital Corporation (“ABC BANK”),
3、whose address is 555 South Bend Avenue, Los Angeles, California 90001.ABC BANKLoan and Security Agreement1. DEFINITIONS.1.1 Defined Terms. As used in this Agreement, the following terms have the definitions set forth below:“Acquisition” has the meaning set forth in Section 4.1(z) hereof.“Acquisition
4、 Documents” has the meaning set forth in Section 4.1(z) hereof.“Additional Sums” has the meaning set forth in Section 2.9(a) hereof.“Affiliate” means any Person controlling, controlled by or under common control with Borrower. For purposes of this definition, “control” means the possession, directly
5、 or indirectly, of the power to direct or cause direction of the management and policies of any Person, whether through ownership of common or preferred stock or other equity interests, by contract or otherwise. Without limiting the generality of the foregoing, each of the following shall be an Affi
6、liate: any officer, director, employee or other agent of Borrower, any shareholder, member or subsidiary of Borrower, and any other Person with whom or which Borrower has common shareholders, officers or directors.“Agreement” has the meaning set forth in the preamble.“Applicable Law” has the meaning
7、 set forth in Section 8.2(a) hereof.“Applicable Usury Law” has the meaning set forth in Section 2.8(b) hereof.“Blocked Account” has the meaning set forth in Section 2.9(c) hereof.“Business Day” means any day on which commercial banks in both Los Angeles, California and Phoenix, Arizona are open for
8、business.“Capital Expenditures” means all expenditures made and liabilities incurred for the acquisition of any fixed asset or improvement, replacement, substitution or addition thereto which has a useful life of more than one year and including, without limitation, those arising in connection with
9、Capital Leases.“Capital Lease” means any lease of property by Borrower that, in accordance with GAAP, should be capitalized for financial reporting purposes and reflected as a liability on the balance sheet of Borrower.“Closing Fee” has the meaning set forth in the Schedule.“Closing Date” means the
10、date of the initial advance made by ABC BANK pursuant to this Agreement.“Code” means the Uniform Commercial Code as adopted and in effect in the State of Arizona from time to time. “Collateral” has the meaning set forth in Section3.1 hereof.“Collateral Monitoring Fee” has the meaning set forth in th
11、e Schedule.“Current Assets” at any date means the amount at which the current assets of Borrower would be shown on a balance sheet of Borrower as at such date, prepared in accordance with GAAP, provided that amounts due from Affiliates and investments in Affiliates shall be excluded therefrom.“Curre
12、nt Liabilities” at any date means the amount at which the current liabilities of Borrower would be shown on a balance sheet of Borrower as at such date, prepared in accordance with GAAP, but always to include outstandings on the Revolving Credit Loans regardless of their treatment under GAAP.“Deposi
13、t Accounts” has the meaning set forth in Section 9105 of the Code.“Dominion Account” has the meaning set forth in Section 2.9(c) hereof.“EBITDA” for any fiscal period of Borrower means the net income of Borrower for such fiscal period, plus interest expense, depreciation and amortization and provisi
14、on for income taxes for such fiscal period, and minus non-recurring miscellaneous income and expenses, all calculated in accordance with GAAP.“Eligible Inventory” means individually and collectively the Eligible Raw Materials Inventory and the Eligible WIP and Finished Goods Inventory.“Eligible Raw
15、Materials Inventory” means Inventory which ABC BANK, in its Permitted Discretion, deems Eligible Raw Materials Inventory, based on such considerations as ABC BANK may from time to time deem appropriate. Without limiting the generality of the foregoing, no Inventory shall be Eligible Raw Materials In
16、ventory unless, in ABC BANKs Permitted Discretion, such Inventory (i)consists of raw materials, in good, new and salable condition which are not obsolete or unmerchantable, and are not comprised of work in process, finished goods, packaging materials, supplies, consigned inventory or inventory at th
17、ird party processors or locations; (iii)meets all standards imposed by any governmental agency or authority; (iv)conforms in all respects to the warranties and representations set forth herein; (v)is at all times subject to ABC BANKs duly perfected, first priority security interest; and (vi)is situa
18、ted at a location for which Borrower has delivered to ABC BANK an executed landlord, bailee or related agreement, in form and substance satisfactory to ABC BANK.“Eligible Receivables” means Receivables arising in the ordinary course of Borrowers business from the sale of goods or rendition of servic
19、es, which ABC BANK, in its Permitted Discretion, shall deem eligible based on such considerations as ABC BANK may from time to time deem appropriate. Without limiting the foregoing, a Receivable shall not be deemed to be an Eligible Receivable if (i)the account debtor has failed to pay the Receivabl
20、e within (A) a period of ninety (90) days after invoice date or (B) a period of sixty (60) days after due date, but not to exceed ninety (90) days from invoice date, to the extent of any amount remaining unpaid after such period; (ii)the account debtor has failed to pay more than 25% of all outstand
21、ing Receivables owed by it to Borrower within ninety (90) days after invoice date; (iii) the account debtor is an Affiliate of Borrower; (iv) the goods relating thereto are placed on consignment, guaranteed sale, “bill and hold,” “COD” or other terms pursuant to which payment by the account debtor m
22、ay be conditional; (v) the account debtor is not located in the United States or Ontario, Canada, unless the Receivable is supported by a letter of credit or other form of guaranty or security, in each case in form and substance satisfactory to ABC BANK; (vi) the account debtor is the United States
23、or any department, agency or instrumentality thereof or any State, city or municipality of the United States, except to the extent that the requirements of Section 6.1.12 have been satisfied; (vii) Borrower is or may become liable to the account debtor for goods sold or services rendered by the acco
24、unt debtor to Borrower; (viii) the account debtors total obligations to Borrower exceed 15% of all Eligible Receivables, to the extent of such excess, unless (A) the account debtor is Boeing/McDonnell Douglas, in which case its Receivables shall not be Eligible Receivables to the extent that such ac
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