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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 90001.1. 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 Documents” has the meaning set for
4、th 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 or indirectly, of the power to dir
5、ect 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 Affiliate: any officer, director, emplo
6、yee 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 set forth in Section 8.2(a) hereof
7、.“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 business.“Capital Expenditures” mea
8、ns 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 Capital Leases.“Capital Lease” mean
9、s 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 date of the initial advance made by
10、 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 the Schedule.“Current Assets” at any
11、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.“Current Liabilities” at any date means t
12、he 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.“Deposit Accounts” has the meaning set for
13、th 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 provision for income taxes for such fiscal
14、 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 Materials Inventory” means Inventor
15、y 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 Inventory unless, in ABC BANKs Permit
16、ted 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 third party processors or locations; (iii)meets all standards imposed by any governmental agency or authority; (iv)conf
