Credit and Security Agreement



 Exhibit 10.69 

  
 CREDIT AND SECURITY AGREEMENT 
  
 BY AND BETWEEN 
  
 PROVENA FOODS INC. 
  
 AND 
  
 WELLS FARGO BANK, NATIONAL ASSOCIATION 
  
 ACTING THROUGH ITS WELLS FARGO BUSINESS CREDIT OPERATING 
 DIVISION 
  
 NOVEMBER 29, 2005 
  








 TABLE OF CONTENTS 
  

					
	 	  	 	  	Page


	 ARTICLE I
	  	DEFINITIONS	  	1
			
	 Section 1.1
	  	Definitions	  	1
	 Section 1.2
	  	Other Definitional Terms; Rules of Interpretation	  	13
			
	 ARTICLE II
	  	AMOUNT AND TERMS OF THE CREDIT FACILITY	  	14
			
	 Section 2.1
	  	Revolving Advances	  	14
	 Section 2.2
	  	Procedures for Requesting Advances	  	14
	 Section 2.3
	  	[Intentionally Omitted]	  	14
	 Section 2.4
	  	Letters of Credit	  	14
	 Section 2.5
	  	Special Account	  	15
	 Section 2.6
	  	[Intentionally Omitted]	  	15
	 Section 2.7
	  	[Intentionally Omitted]	  	15
	 Section 2.8
	  	Interest; Minimum Interest Charge; Default Interest Rate; Application of Payments; Participations; Usury	  	15
	 Section 2.9
	  	Fees	  	17
	 Section 2.10
	  	Time for Interest Payments; Payment on Non-Business Days; Computation of Interest and Fees	  	18
	 Section 2.11
	  	Lockbox and Collateral Account; Sweep of Funds	  	19
	 Section 2.12
	  	Voluntary Prepayment; Termination of the Credit Facility by the Borrower	  	19
	 Section 2.13
	  	Mandatory Prepayment	  	20
	 Section 2.14
	  	Revolving Advances to Pay Obligations	  	20
	 Section 2.15
	  	Use of Proceeds	  	20
	 Section 2.16
	  	Liability Records	  	20
			
	 ARTICLE III
	  	SECURITY INTEREST; OCCUPANCY; SETOFF	  	20
			
	 Section 3.1
	  	Grant of Security Interest	  	20
	 Section 3.2
	  	Notification of Account Debtors and Other Obligors	  	21
	 Section 3.3
	  	Assignment of Insurance	  	21
	 Section 3.4
	  	Occupancy	  	21
	 Section 3.5
	  	License	  	22
	 Section 3.6
	  	Financing Statement	  	22
	 Section 3.7
	  	Setoff	  	23
	 Section 3.8
	  	Collateral	  	23
			
	 ARTICLE IV
	  	CONDITIONS OF LENDING	  	23
			
	 Section 4.1
	  	Conditions Precedent to the Initial Advances and Letter of Credit	  	23
	 Section 4.2
	  	Conditions Precedent to All Advances and Letters of Credit	  	26

  

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 TABLE OF CONTENTS 
 (continued) 
  

					
	 	  	 	  	Page


	 ARTICLE V
	  	REPRESENTATIONS AND WARRANTIES	  	26
			
	 Section 5.1
	  	Existence and Power; Name; Chief Executive Office; Inventory and Equipment Locations; Federal Employer Identification Number and Organizational Identification Number	  	26
	 Section 5.2
	  	Capitalization	  	27
	 Section 5.3
	  	Authorization of Borrowing; No Conflict as to Law or Agreements	  	27
	 Section 5.4
	  	Legal Agreements	  	27
	 Section 5.5
	  	Subsidiaries	  	27
	 Section 5.6
	  	Financial Condition; No Adverse Change	  	27
	 Section 5.7
	  	Litigation	  	28
	 Section 5.8
	  	Regulation U	  	28
	 Section 5.9
	  	Taxes	  	28
	 Section 5.10
	  	Titles and Liens	  	28
	 Section 5.11
	  	Intellectual Property Rights	  	28
	 Section 5.12
	  	Plans	  	29
	 Section 5.13
	  	Default	  	30
	 Section 5.14
	  	Environmental Matters	  	30
	 Section 5.15
	  	Submissions to Lender	  	30
	 Section 5.16
	  	Financing Statements	  	31
	 Section 5.17
	  	Rights to Payment	  	31
	 Section 5.18
	  	Financial Solvency	  	31
			
	 ARTICLE VI
	  	COVENANTS	  	32
			
	 Section 6.1
	  	Reporting Requirements	  	32
	 Section 6.2
	  	Financial Covenants	  	35
	 Section 6.3
	  	Permitted Liens; Financing Statements	  	36
	 Section 6.4
	  	Indebtedness	  	36
	 Section 6.5
	  	Guaranties	  	37
	 Section 6.6
	  	Investments and Subsidiaries	  	37
	 Section 6.7
	  	Dividends and Distributions	  	37
	 Section 6.8
	  	Salaries	  	37
	 Section 6.9
	  	[Intentionally Omitted]	  	37
	 Section 6.10
	  	Books and Records; Collateral Examination, Inspection and Appraisals	  	38
	 Section 6.11
	  	Account Verification	  	38
	 Section 6.12
	  	Compliance with Laws	  	38
	 Section 6.13
	  	Payment of Taxes and Other Claims	  	39
	 Section 6.14
	  	Maintenance of Properties	  	39
	 Section 6.15
	  	Insurance	  	39
	 Section 6.16
	  	Preservation of Existence	  	40
	 Section 6.17
	  	Delivery of Instruments, etc.	  	40
	 Section 6.18
	  	Sale or Transfer of Assets; Suspension of Business Operations	  	40

  

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 TABLE OF CONTENTS 
 (continued) 
  

					
	 	  	 	  	Page


	 Section 6.19
	  	Consolidation and Merger; Asset Acquisitions	  	40
	 Section 6.20
	  	Sale and Leaseback	  	40
	 Section 6.21
	  	Restrictions on Nature of Business	  	40
	 Section 6.22
	  	Accounting	  	40
	 Section 6.23
	  	Discounts, etc	  	41
	 Section 6.24
	  	Plans	  	41
	 Section 6.25
	  	Place of Business; Name	  	41
	 Section 6.26
	  	Constituent Documents; S Corporation Status	  	41
	 Section 6.27
	  	Performance by the Lender	  	41
			
	 ARTICLE VII
	  	EVENTS OF DEFAULT, RIGHTS AND REMEDIES	  	42
			
	 Section 7.1
	  	Events of Default	  	42
	 Section 7.2
	  	Rights and Remedies	  	44
	 Section 7.3
	  	Certain Notices	  	45
			
	 ARTICLE VIII
	  	MISCELLANEOUS	  	45
			
	 Section 8.1
	  	No Waiver; Cumulative Remedies; Compliance with Laws	  	45
	 Section 8.2
	  	Amendments, Etc	  	45
	 Section 8.3
	  	Notices; Communication of Confidential Information; Requests for Accounting	  	45
	 Section 8.4
	  	Further Documents	  	46
	 Section 8.5
	  	Costs and Expenses	  	46
	 Section 8.6
	  	Indemnity	  	46
	 Section 8.7
	  	Participants	  	47
	 Section 8.8
	  	Execution in Counterparts; Telefacsimile Execution	  	47
	 Section 8.9
	  	Retention of Borrower’s Records	  	47
	 Section 8.10
	  	Binding Effect; Assignment; Complete Agreement; Sharing Information	  	48
	 Section 8.11
	  	Severability of Provisions	  	48
	 Section 8.12
	  	Headings	  	48
	 Section 8.13
	  	Governing Law; Jurisdiction, Venue	  	48
	 Section 8.14
	  	Arbitration	  	48

  

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 CREDIT AND SECURITY AGREEMENT 
  
 Dated as of November     , 2005 
  
 PROVENA FOODS INC., a California corporation (the “Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (
“Lender”) through its WELLS FARGO BUSINESS CREDIT operating division, hereby agree as follows: 
  
 ARTICLE I 
  
 DEFINITIONS 
  
 Section 1.1
Definitions. Except as otherwise expressly provided in this Agreement, the following terms shall have the meanings given them in this Section: 
  
 “Accounts” shall have the meaning given it under the UCC. 
  
 “Accounts Advance Rate” means up to eighty-five. percent (85%), or such lesser rate as the Lender in its sole
discretion may deem appropriate from time to time. 
  
 “Advance” means a Revolving Advance. 
  
 “Affiliate” or “Affiliates” means any Person controlled by, controlling or under common control with the Borrower, including any Subsidiary of the Borrower. For purposes of this definition, “control,” when used
with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. 
  
 “Agreement” means this Credit and Security Agreement. 

 
 “Aggregate Credit Limit” means the aggregate of the Maximum Line
Amount and the L/C Amount. 
  
 “Availability” means the
amount, if any, by which the Borrowing Base exceeds the outstanding principal balance of the Revolving Note. 
  
 “Bond” means the Variable/Fixed Rate Demand Bonds, Series 2003A issued for the benefit of the Borrower pursuant to the Indenture. 
  
 “Bond L/C” means the Letter of Credit issued by Lender in
connection with and as security for the payment of the Bond in the face amount of $6,233,000 which said Letter of Credit shall be secured by the Collateral, including, but not limited to the Deed of Trust and the Equipment. 
  
 “Book Net Worth” means the aggregate of the common and preferred
shareholders’ equity in the Borrower, determined in accordance with GAAP. 
  

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 “Borrowing Base” means at any time the lesser of: 
  
 (a) The Maximum Line Amount; or 
  
 (b) Subject to change from time to time in the Lender’s sole discretion,
the sum of: 
  
 (i) The product of the Accounts
Advance Rate times Eligible Accounts, plus 
  
 (ii) The lesser of (A) $ 2,700,000, or (B) the product of the Inventory Advance Rate times Eligible Inventory, or (C) 85% of the Net Orderly Liquidation Value of Eligible Inventory; provided, that the aggregate amount
of outstanding Advances supported by (x) Eligible Inventory of the Royal Angelus Macaroni Company pasta division of the Borrower shall at no time exceed $150,000, and (y) Eligible Inventory consisting of Inventory that is work-in-process
shall at no time exceed $1,300,000, less 
  
 (iii) The Borrowing Base Reserve, less 
  
 (iv) The Permanent Reserve, less 
  
 (v)
The Real Estate Reserve, less 
  
 (vi) The Letter
of Credit Reserve, Less 
  
 (vii) Obligations
that the Borrower owes to the Lender that have not yet been advanced on the Revolving Note, and the dollar amount that the Lender in its reasonable discretion then determines to be a reasonable determination of the Borrower’s credit exposure
with respect to Wells Fargo Bank Affiliate Obligations. 
  
 “Borrowing Base Reserve” means, as of any date of determination, such amounts (expressed as either a specified amount or as a percentage of a specified category or item) as the Lender may from time to time establish and adjust in
reducing Availability (a) to reflect events, conditions, contingencies or risks which, as determined by the Lender, do or may affect (i) the Collateral or its value, (ii) the assets, business or prospects of the Borrower, or
(iii) the security interests and other rights of the Lender in the Collateral (including the enforceability, perfection and priority thereof), or (b) to reflect the Lender’s judgment that any collateral report or financial information
furnished by or on behalf of the Borrower to the Lender is or may have been incomplete, inaccurate or misleading in any material respect, or (c) in respect of any state of facts that the Lender determines constitutes a Default or an Event of
Default. 
  
 “Business Day” means a day on which the
Federal Reserve Bank of New York is open for business. 
  
 “Capital Expenditures” means for a period, any expenditure of money during such period (i) for the purchase or construction of assets, or for improvements or additions thereto, which are capitalized on the Borrower’s balance
sheet, or (ii) for the lease, purchase or other acquisition of any capital asset, or for the lease of any other asset whether payable currently or in the future. 
  

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 “Change of Control” means the occurrence of any of the following events: 
  
 (a) Any Person or “group” (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934) is or becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a Person will be deemed to have “beneficial
ownership” of all securities that such Person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than fifty percent (50%) of the voting power of all
classes of Owners of the Borrower; 
  
 (b) During any consecutive
two-year period, individuals who at the beginning of such period constituted the board of Directors of the Borrower (together with any new Directors whose election to such board of Directors, or whose nomination for election by the Owners of the
Borrower, was approved by a vote of two thirds of the Directors then still in office who were either Directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to
constitute a majority of the board of Directors of the Borrower then in office; or 
  
 (c) Theodore Arena and Santo Zito shall cease to actively manage the Borrower’s day-to-day business activities and no replacement acceptable to Lender is obtained within 60 days. 
  
 “Collateral” means all of the Borrower’s Accounts, chattel
paper and electronic chattel paper, deposit accounts, documents, Equipment, General Intangibles, goods, instruments, Inventory, Investment Property, letter-of-credit rights, letters of credit, all sums on deposit in any Collateral Account, and any
items in any Lockbox; together with (i) all substitutions and replacements for and products of any of the foregoing; (ii) in the case of all goods, all accessions; (iii) all accessories, attachments, parts, equipment and repairs now
or hereafter attached or affixed to or used in connection with any goods; (iv) all warehouse receipts, bills of lading and other documents of title now or hereafter covering such goods; (v) all collateral subject to the Lien of any
Security Document; (vi) any money, or other assets of the Borrower that now or hereafter come into the possession, custody, or control of the Lender; (vii) all sums on deposit in the Special Account; (viii) proceeds of any and all of
the foregoing; (ix) books and records of the Borrower, including all mail or electronic mail addressed to the Borrower; and (x) all of the foregoing, whether now owned or existing or hereafter acquired or arising or in which the Borrower
now has or hereafter acquires any rights. 
  
 “Collateral
Account” means the “Lender Account” as defined in the Wholesale Lockbox and Collection Account Agreement. 
  
 “Commitment” means the Lender’s commitment to make Advances to, and to issue Letters of Credit for the account of, the Borrower.

  
 “Constituent Documents” means with respect to any
Person, as applicable, such Person’s certificate of incorporation, articles of incorporation, by-laws, certificate of formation, articles of organization, limited liability company agreement, management agreement, operating agreement,
shareholder agreement, partnership agreement or similar document or agreement governing such Person’s existence, organization or management or concerning disposition of ownership interests of such Person or voting rights among such
Person’s owners. 
  

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 “Credit Facility” means the credit facility under which Revolving Advances and Letters of
Credit may be made available to the Borrower by the Lender under Article II. 
  
 “Current Maturities of Long Term Debt” means as of each month end, the amount of the Borrower’s long-term debt and capitalized leases which will become due during that monthly period. 
  
 “Cut-off Time” means 10:00 a.m. Los Angeles, California time.

  
 “Debt” means of a Person as of a given date, all
items of indebtedness or liability which in accordance with GAAP would be included in determining total liabilities as shown on the liabilities side of a balance sheet for such Person and shall also include the aggregate payments required to be made
by such Person at any time under any lease that is considered a capitalized lease under GAAP. 
  
 “Debt Service Coverage Ratio” means (i) the sum of (A) Funds from Operations and (B) Interest Expense minus (C) unfinanced Capital Expenditures and (D) non-cash
deferred income, divided by (ii) the sum of (A) Current Maturities of Long Term Debt, (B) the amount of the Letter of Credit Reserve for such year determined quarterly on a pro rata basis and (B) Interest Expense.

  
 “Deed of Trust” means that certain deed of
trust, assignment of rents, security agreement and fixture filing executed by Borrower in favor of Lender with respect to the Borrower’s real property located in Lathrop, California. 
  
 “Default” means an event that, with giving of notice or passage of time or both, would constitute an Event of
Default. 
  
 “Default Period” means any period of time
beginning on the day a Default or Event of Default occurs and ending on the date identified by the Lender in writing as the date that such Default or Event of Default has been cured or waived. 
  
 “Default Rate” means an annual interest rate in effect during a
Default Period or following the Termination Date, which interest rate shall be equal to three percent (3%) over the applicable Floating Rate, as such rate may change from time to time. 
  
 “Director” means a director if the Borrower is a corporation, a
governor or manager if the Borrower is a limited liability company, or a general partner if the Borrower is a partnership. 
  
 “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time. 
  
 “ERISA Affiliate” means any trade or business (whether or not
incorporated) that is a member of a group which includes the Borrower and which is treated as a single employer under Section 414 of the IRC. 
  

 4 








 “Eligible Accounts” means all unpaid Accounts arising from the sale or lease of goods or the
performance of services, net of any credits, but excluding any such Accounts having any of the following characteristics: 
  
 (i) That portion of Accounts unpaid 90 days or more after the invoice date; 
  
 (ii) That portion of Accounts related to goods or services with respect to which the Borrower has received
notice of a claim or dispute, which are subject to a claim of offset or a contra account, or which reflect a reasonable reserve for warranty claims or returns; 
  

(iii) That portion of Accounts not yet earned by the final delivery of goods or rendition of services, as applicable, by the Borrower
to the customer, including progress billings, and that portion of Accounts for which an invoice has not been sent to the applicable account debtor; 
  
 (iv) Accounts constituting (i) proceeds of copyrightable material unless such copyrightable material shall have been registered with
the United States Copyright Office, or (ii) proceeds of patentable inventions unless such patentable inventions have been registered with the United States Patent and Trademark Office; 
  
 (v) Accounts owed by any unit of government, whether foreign
or domestic (provided, however, that there shall be included in Eligible Accounts that portion of Accounts owed by such units of government for which the Borrower has provided evidence satisfactory to the Lender that (A) the
Lender has a first priority perfected security interest and (B) such Accounts may be enforced by the Lender directly against such unit of government under all applicable laws); 
  
 (vi) Accounts denominated in any currency other than United States dollars; 
  
 (vii) Accounts owed by an account debtor located outside the
United States or Canada which are not (A) backed by a bank letter of credit naming the Lender as beneficiary or assigned to the Lender, in the Lender’s possession or control, and with respect to which a control agreement concerning the
letter-of-credit rights is in effect, and acceptable to the Lender in all respects, in its sole discretion, or (B) covered by a foreign receivables insurance policy acceptable to the Lender in its sole discretion; 
  
 (viii) Accounts owed by an account debtor that is insolvent,
the subject of bankruptcy proceedings or has gone out of business; 
  
 (ix) Accounts owed by an Owner, Subsidiary, Affiliate, Officer or employee of the Borrower; 
  
 (x) Accounts not subject to a duly perfected security interest in the Lender’s favor or which are subject to any Lien in favor of any
Person other than the Lender; 
  
 (xi) That
portion of Accounts that has been restructured, extended, amended or modified; 
  

 5 








 (xii) That portion of Accounts that constitutes advertising, finance charges, service
charges or sales or excise taxes; 
  
 (xiii)
Accounts owed by an account debtor, regardless of whether otherwise eligible, to the extent that the aggregate balance of such Accounts exceeds 15% of the aggregate amount of all Accounts, provided, that such percentage with respect to
Accounts owed by Blue Line Dist, Saladinos, and Roma Foods shall be 25%. 
  
 (xiv) Accounts owed by an account debtor, regardless of whether otherwise eligible, if 25% or more of the total amount of Accounts due from such debtor is ineligible under clauses (i), (ii), or (x) above; and

  
 (xv) Accounts, or portions thereof, otherwise
deemed ineligible by the Lender in its sole discretion. 
  
 “Eligible Inventory” means all Inventory of the Borrower, valued at the lower of cost or market in accordance with GAAP; but excluding any Inventory having any of the following characteristics: 
  
 (i) Inventory that is: in-transit; located at any warehouse,
job site or other premises not approved by the Lender in writing; not subject to a duly perfected first priority security interest in the Lender’s favor; subject to any lien or encumbrance that is subordinate to the Lender’s first priority
security interest; covered by any negotiable or non-negotiable warehouse receipt, bill of lading or other document of title; on consignment from any Person; on consignment to any Person or subject to any bailment unless such consignee or bailee has
executed an agreement with the Lender; 
  
 (ii)
Supplies, packaging, maintenance parts or sample Inventory, or customer supplied parts or Inventory; 
  
 (iii) Inventory that is damaged, defective, obsolete, slow moving or not currently saleable in the normal course of the Borrower’s
operations, or the amount of such Inventory that has been reduced by shrinkage; 
  
 (iv) Inventory that the Borrower has returned, has attempted to return, is in the process of returning or intends to return to the vendor
thereof; 
  
 (v) Inventory that is one year or
more from the date of its manufacture; 
  
 (vi)
Inventory manufactured by the Borrower pursuant to a license unless the applicable licensor has agreed in writing to permit the Lender to exercise its rights and remedies against such Inventory; 
  
 (vii) Inventory that is subject to a Lien in favor of any
Person other than the Lender; 
  

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 (viii) Except in the case of Inventory located at 5010 Eucalyptus Avenue, Chino,
California 91710 and 5060 Eucalyptus Avenue, Chino, California 91710, Inventory stored at locations holding less than 10% of the aggregate value of Borrower’s Inventory; and 
  
 (ix) Inventory otherwise deemed ineligible by the Lender in its sole discretion. 
  
 “Environmental Law” means any federal, state, local or other
governmental statute, regulation, law or ordinance dealing with the protection of human health and the environment. 
  
 “Equipment” means all of the Borrower’s equipment, as such term is defined in the UCC, whether now owned or hereafter acquired, including
all present and future machinery, vehicles, furniture, fixtures, manufacturing equipment, shop equipment, office and recordkeeping equipment, parts, tools, supplies, and including specifically the goods described in any equipment schedule or list
herewith or hereafter furnished to the Lender by the Borrower. 
  
 “Event of Default” is defined in Section 7.1. 
  
 “Financial Covenants” means the covenants set forth in Section 6.2. 
  
 “Floating Rate” means with respect to Revolving Advances evidenced by the Revolving Note, an annual interest rate equal to the sum of the Prime Rate plus one-half of one percent (0.5%), which interest rate
shall, in each case, change when and as the Prime Rate changes; provided, however, if Borrower fails to meet its projections as set forth in the Initial Projections, the Floating Rate shall increase by one-half of one percent (0.5%).
If necessary, such increase will become effective as of the first day of the quarter on which the Borrower’s financial performance, measured quarterly on a year to date basis, deviates from such projections as set forth on the monthly financial
statements delivered to Lender pursuant to Section 6.1(b). 
  
 “Floating Rate Advance” means an Advance bearing interest at the Floating Rate. 
  
 “Funding Date” is defined in Section 2.1. 
  
 “Funds from Operations” means for a given period, the sum of (i) Net Income, (ii) depreciation and amortization, (iii) any
increase (or decrease) in deferred income taxes, (iv) any increase (or decrease) in lifo reserves, and (v) other non-cash items, each as determined for such period in accordance with GAAP. 
  
 “GAAP” means generally accepted accounting principles, applied on a
basis consistent with the accounting practices applied in the financial statements described in Section 5.6. 
  
 “General Intangibles” shall have the meaning given it under the UCC. 
  
 “Guarantor(s)” means any Person now or in the future guaranteeing the Obligations. 
  
 “Guaranty” means each unconditional continuing guaranty or
unconditional continuing guaranty by corporation executed by a Guarantor in favor of the Lender (collectively, the “Guaranties”). 
  

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 “Hazardous Substances” means pollutants, contaminants, hazardous substances, hazardous wastes,
petroleum and fractions thereof, and all other chemicals, wastes, substances and materials listed in, regulated by or identified in any Environmental Law. 
  
 “Indemnified Liabilities” is defined in Section 8.6 
  
 “Indemnitees” is defined in Section 8.6. 
  
 “Indenture” means that certain Indenture of Trust dated as of December 1, 2003 by and between the Borrower
and US Bank National Association. 
  
 “Initial
Projections” means the Borrower’s projections for the remainder of fiscal year ending in 2005 reflecting a loss before taxes no greater than $1,575,000 (excluding the impact of deferred income or gains on the sale of real property) for
such year, and fiscal year ending in 2006 a net profit before taxes of $220,000 (excluding the impact of deferred income or gains on the sale of real property) for such year. 
  
 “IRC” means the Internal Revenue Code of 1986, as amended from time to time. 
  
 “Infringement” or “Infringing” when used with respect to
Intellectual Property Rights means any infringement or other violation of Intellectual Property Rights. 
  
 “Intellectual Property Rights” means all actual or prospective rights arising in connection with any intellectual property or other proprietary
rights, including all rights arising in connection with copyrights, patents, service marks, trade dress, trade secrets, trademarks, trade names or mask works. 
  

“Interest Expense” means for a fiscal year-to-date period, the Borrower’s total gross interest expense during such period (excluding
interest income), and shall in any event include (i) interest expensed (whether or not paid) on all Debt, (ii) the amortization of debt discounts, (iii) the amortization of all fees payable in connection with the incurrence of Debt to
the extent included in interest expense, and (iv) the portion of any capitalized lease obligation allocable to interest expense. 
  
 “Interest Payment Date” is defined in Section 2.10(a). 
  
 “Inventory” shall have the meaning given it under the UCC. 
  
 “Inventory Advance Rate” means up to forty-nine percent (49%), or
such lesser rate as the Lender in its sole discretion may deem appropriate from time to time. 
  
 “Investment Property” shall have the meaning given it under the UCC. 
  
 “L/C Amount” means the sum of (i) the face amount of the Bond L/C (ii) the face amount of the Workers’ Comp L/C and (ii) the
unpaid amount of the Obligation of Reimbursement. 
  

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 “L/C Application” means an application for the issuance of standby or documentary letters of
credit pursuant to the terms of a Standby Letter of Credit Agreement, in form acceptable to the Lender. 
  
 “Letter of Credit” is defined in Section 2.4. 
  
 “Letter of Credit Reimbursement Agreement” means that certain Letter of Credit Reimbursement Agreement executed by Lender and Borrower with
respect to the standby letter of credit issued by Lender for the benefit of Borrower with respect to the Variable/Fixed Rate Demand Bonds, Series 2003A issued in favor of Borrower pursuant to the Indenture. 
  
 “Letter of Credit Reserve” means a reserve against Availability
between $544,000 and the principal reduction payments made by Borrower for each year with respect to the Bonds as set forth in the Indenture. Such reserve amount shall be cumulative from year to year. 
  
 “Licensed Intellectual Property” is defined in
Section 5.11(c). 
  
 “Lien” means any security
interest, mortgage, deed of trust, pledge, lien, charge, encumbrance, title retention agreement or analogous instrument or device, including the interest of each lessor under any capitalized lease and the interest of any bondsman under any payment
or performance bond, in, of or on any assets or properties of a Person, whether now owned or subsequently acquired and whether arising by agreement or operation of law. 
  
 “Loan Documents” means this Agreement, the Notes, the Letter of Credit Reimbursement Agreement any L/C
Applications and the Security Documents, together with every other agreement, note, document, contract or instrument to which the Borrower now or in the future may be a party and which is required by the Lender. 
  
 “Lockbox” means “Lockbox” as defined in the Wholesale
Lockbox and Collection Account Agreement. 
  
 “Material
Adverse Effect” means any of the following: 
  
 (i) A material adverse effect on the business, operations, results of operations, prospects, assets, liabilities or financial condition of the Borrower; 
  
 (ii) A material adverse effect on the ability of the Borrower to perform its obligations under the Loan
Documents; 
  
 (iii) A material adverse effect on
the ability of the Lender to enforce the Obligations or to realize the intended benefits of the Security Documents, including a material adverse effect on the validity or enforceability of any Loan Document or of any rights against any Guarantor, or
on the status, existence, perfection, priority (subject to Permitted Liens) or enforceability of any Lien securing payment or performance of the Obligations; or 
  
 (iv) Any claim against the Borrower or threat of litigation which if determined adversely to the Borrower
would cause the Borrower to be liable to pay an amount exceeding 

  

 9 








 
$100,000 or would result in the occurrence of an event described in clauses (i), (ii) and (iii) above. 
  
 “Maturity Date” means, with respect to the Credit Facility,
December 30, 2008. 
  
 “Maximum Line Amount” means
$6,000,000. 
  
 “Minimum Interest Charge” is defined in
Section 2.8(c). 
  
 “Multiemployer Plan” means a
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) to which the Borrower or any ERISA Affiliate contributes or is obligated to contribute. 
  
 “Net Cash Proceeds” means in connection with any asset sale, the cash proceeds (including any cash payments received by way of deferred payment
whether pursuant to a note, installment receivable or otherwise, but only as and when actually received) from such asset sale, net of (i) attorneys’ fees, accountants’ fees, investment banking fees, brokerage commissions and amounts
required to be applied to the repayment of any portion of the Debt secured by a Lien not prohibited hereunder on the asset which is the subject of such sale, and (ii) taxes paid or reasonably estimated to be payable as a result of such asset
sale. 
  
 “Net Income” means fiscal year-to-date
after-tax net income from continuing operations, including extraordinary losses but excluding extraordinary gains, all as determined in accordance with GAAP. 
  
 “Net Loss” means fiscal year-to-date after-tax net loss from continuing operations as determined in accordance with GAAP. 
  
 “Net Orderly Liquidation Value” means a professional opinion of the
estimated most probable Net Cash Proceeds which could typically be realized at a properly advertised and professionally managed liquidation sale, conducted under orderly sale conditions for an extended period of time (usually six to nine months),
under the economic trends existing at the time of the appraisal. 
  
 “Note” means the Revolving Note. 
  
 “Obligation of Reimbursement” means the obligation of the Borrower to reimburse the Lender pursuant to the terms of the Standby Letter of Credit Agreement and any applicable L/C Application. 
  
 “Obligations” means each Note, the Obligation of Reimbursement,
Borrower’s obligations to Lender under the Letter of Credit Reimbursement Agreement, and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Lender,
whether such debt, liability or obligation now exists or is hereafter created or incurred, whether it arises in a transaction involving the Lender alone or in a transaction involving other creditors of the Borrower, and whether it is direct or
indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several, and including all indebtedness of the Borrower arising under 

  

 10 








 
any Loan Document or guaranty between the Borrower and the Lender, whether now in effect or subsequently entered into, and all Wells Fargo Bank Affiliate
Obligations. 
  
 “Officer” means with respect to the
Borrower, an officer if the Borrower is a corporation, a manager if the Borrower is a limited liability company, or a partner if the Borrower is a partnership. 
  

“OFAC” is defined in Section 6.12(c). 
  
 “Overadvance” means the amount, if any, by which the outstanding principal balance of the Revolving Note is in excess of the then-existing
Borrowing Base. 
  
 “Owned Intellectual Property” is
defined in Section 5.11(a). 
  
 “Owner” means with
respect to the Borrower, each Person having legal or beneficial title to an ownership interest in the Borrower or a right to acquire such an interest. 
  
 “Patent and Trademark Security Agreement” means each and every Patent and Trademark Security Agreement now or hereafter executed by the Borrower
in favor of the Lender dated the same date as this Agreement. 
  
 “Pension Plan” means a pension plan (as defined in Section 3(2) of ERISA) maintained for employees of the Borrower or any ERISA Affiliate and covered by Title IV of ERISA. 
  
 “Permanent Reserve” means a reserve against Availability in the
amount of $500,000; provided, that such amount shall be reduced to $375,000 upon receipt by Lender of the Borrower’s financial statements as set forth in Section 6.1, evidencing a Debt Service Coverage Ratio equal to or greater than
1.10:1.00 for four (4) consecutive quarters, and shall continue to be reduced in increments of $125,000 every two (2) quarters thereafter so long as Borrower continues to achieve a Debt Service Coverage Ratio equal to or greater than
1.10:1.00 for each following two (2) consecutive quarters on a quarter by quarter basis. 
  
 “Permitted Lien” and “Permitted Liens” are defined in Section 6.3(a). 
  
 “Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof. 
  
 “Plan” means an employee benefit plan (as defined in Section 3(3) of ERISA) maintained for employees of the Borrower or any ERISA Affiliate. 
  
 “Premises” means all locations where the Borrower conducts its business or has any rights of possession, including
the locations legally described in Exhibit C attached hereto. 
  
 “Prime Rate” means at any time the rate of interest most recently announced by the Lender at its principal office as its Prime Rate, with the understanding that the Prime Rate is one of the Lender’s base rates, and serves as
the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof in 

  

 11 








 
such internal publication or publications as the Lender may designate. Each change in the rate of interest shall become effective on the date each Prime Rate
change is announced by the Lender. 
  
 “Real Estate
Reserve” means a monthly reserve against Availability of $8,000 per month for real estate property taxes and improvements with respect to the real property located at 251 D’Arcy Parkway, Lathrop, California 95330. The amount held in the
Real Estate Reserve may be reduced from time to time by the amount of any real estate property taxes paid by Borrower and improvement made by Borrower to the real property referred to in the previous sentence upon evidence, satisfactory to Lender,
that such taxes have been paid and such improvements have been made. To the extent that the Real Estate Reserve is reduced pursuant to the previous sentence it shall thereafter be replenished on a monthly basis at the rate of $8,000 per month.

  
 “Reportable Event” means a reportable event (as
defined in Section 4043 of ERISA), other than an event for which the 30-day notice requirement under ERISA has been waived in regulations issued by the Pension Benefit Guaranty Corporation. 
  
 “Revolving Advance” is defined in Section 2.1. 
  
 “Revolving Note” means the Borrower’s revolving promissory
note, payable to the order of the Lender in substantially the form of Exhibit A hereto, as same may be renewed and amended from time to time, and all replacements thereto. 
  
 “Security Documents” means this Agreement, the Wholesale Lockbox and Collection Account Agreement, the Patent and
Trademark Security Agreement, the Deed of Trust, and any other document delivered to the Lender from time to time to secure the Obligations. 
  
 “Security Interest” is defined in Section 3.1. 
  
 “Special Account” means a specified cash collateral account maintained with Lender or another financial institution acceptable to the Lender in
connection with Letters of Credit, as contemplated by Section 2.5. 
  
 “Standby Letter of Credit Agreement” means an agreement governing the issuance of standby letters of credit by Lender entered into between the Borrower as applicant and Lender as issuer. 
  
 “Subsidiary” means any Person of which more than 50% of the
outstanding ownership interests having general voting power under ordinary circumstances to elect a majority of the board of directors or the equivalent of such Person, regardless of whether or not at the time ownership interests of any other class
or classes shall have or might have voting power by reason of the happening of any contingency, is at the time directly or indirectly owned by the Borrower, by the Borrower and one or more other Subsidiaries, or by one or more other Subsidiaries.

  
 “Termination Date” means the earliest of
(i) the Maturity Date, (ii) the date the Borrower terminates the Credit Facility, or (iii) the date the Lender demands payment of the Obligations, following an Event of Default, pursuant to Section 7.2. 
  

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 “UCC” means the Uniform Commercial Code as in effect in the state designated in this Agreement
as the state whose laws shall govern this Agreement, or in any other state whose laws are held to govern this Agreement or any portion of this Agreement. 
  
 “Unused Amount” is defined in Section 2.9(b). 
  
 “Wells Fargo Bank Affiliate Obligations” means all obligations, liabilities, contingent reimbursement obligations, fees, and expenses owing by
the Borrower or its Subsidiaries to any Person that is owned in material part by the Lender, and that relates to any service or facility extended to the Borrower or its Subsidiaries, including: (a) credit cards, (b) credit card processing
services, (c) debit cards, and (d) purchase cards, as well as any other services or facilities from time to time specified by the Lender, whether direct or indirect, absolute or contingent, due or to become due, and whether existing now or
in the future. 
  
 “Wholesale Lockbox and Collection Account
Agreement” means the Wholesale Lockbox and Collection Account Agreement by and between the Borrower and the Lender, dated the same date as this Agreement. 
  

“Workers’ Comp L/C” means those certain Letters of Credit in the aggregate face amount of $1,217,614, issued by Lender in connection
with Borrower’s workers compensation insurance, which said Letters of Credit shall be secured by the Collateral, including, but not limited to, cash equal to the aggregate face amount of such Letters of Credit, which said cash shall at all time
be subject to a control agreement in favor of the Lender. 
  
 Section 1.2 Other Definitional Terms; Rules of Interpretation. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP. All terms defined in the UCC and not otherwise defined herein have the
meanings assigned to them in the UCC. References to Articles, Sections, subsections, Exhibits, Schedules and the like, are to Articles, Sections and subsections of, or Exhibits or Schedules attached to, this Agreement unless otherwise expressly
provided. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. Unless the context in which used herein otherwise clearly requires, “or”
has the inclusive meaning represented by the phrase “and/or”. Defined terms include in the singular number the plural and in the plural number the singular. Reference to any agreement (including the Loan Documents), document or instrument
means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof (and, if applicable, in accordance with the terms hereof and the other Loan Documents), except where otherwise
explicitly provided, and reference to any promissory note includes any promissory note which is an extension or renewal thereof or a substitute or replacement therefor. Reference to any law, rule, regulation, order, decree, requirement, policy,
guideline, directive or interpretation means as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect on the determination date, including rules and regulations promulgated thereunder. 
  

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 ARTICLE II 
  

AMOUNT AND TERMS OF THE CREDIT FACILITY 
  
 Section 2.1 Revolving Advances. The Lender agrees, subject to the terms and conditions of this Agreement, to make advances (“Revolving
Advances”) to the Borrower from time to time from the date that all of the conditions set forth in 4.1 are satisfied (the “Funding Date”) to and until (but not including) the Termination Date in an amount not in excess of the Maximum
Line Amount. The Lender shall have no obligation to make a Revolving Advance to the extent that the amount of the requested Revolving Advance exceeds Availability. The Borrower’s obligation to pay the Revolving Advances shall be evidenced by
the Revolving Note and shall be secured by the Collateral. Within the limits set forth in this Section 2.1, the Borrower may borrow, prepay pursuant to Section 2.12, and reborrow. 
  
 Section 2.2 Procedures for Requesting Advances. The Borrower shall
comply with the following procedures in requesting Revolving Advances: 
  
 (a) [Intentionally Omitted]. 
  
 (b) Time for Requests. The Borrower shall request each Advance not later than the Cut-off Time on the Business Day on which the Advance is to be made. Each request that conforms to the terms of this Agreement
shall be effective upon receipt by the Lender, shall be in writing or by telephone or telecopy transmission, and shall be confirmed in writing by the Borrower if so requested by the Lender, by (i) an Officer of the Borrower; or
(ii) a Person designated as the Borrower’s agent by an Officer of the Borrower in a writing delivered to the Lender; or (iii) a Person whom the Lender reasonably believes to be an Officer of the Borrower or such a designated agent.
The Borrower shall repay all Advances even if the Lender does not receive such confirmation and even if the Person requesting an Advance was not in fact authorized to do so. Any request for an Advance, whether written or telephonic, shall be deemed
to be a representation by the Borrower that the conditions set forth in Section 4.2 have been satisfied as of the time of the request. 
  
 (c) Disbursement. Upon fulfillment of the applicable conditions set forth in Article IV, the Lender shall disburse the proceeds of
the requested Advance by crediting the same to the Borrower’s demand deposit account maintained with the Lender unless the Lender and the Borrower shall agree in writing to another manner of disbursement. 
  
 Section 2.3 [Intentionally Omitted]. 
  
 Section 2.4 Letters of Credit. 
  
 (a) The Lender agrees, subject to the terms and conditions
of this Agreement, to issue, the Bond L/C and the Workers’ Comp L/C and any replacement or substitutions therefore (each, a “Letter of Credit”) for the Borrower’s account. Each Letter of Credit shall be issued pursuant to a
separate L/C Application made by the Borrower to the Lender, which must be completed in a manner satisfactory to the Lender. The terms and conditions set forth in each such L/C Application shall supplement the terms and conditions of the Standby
Letter of Credit Agreement. 
  

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 (b) The Workers Comp L/C and any replacement or substitution therefore, shall be issued
with an expiry date no later than eighteen (18) months from the date of issuance or the Maturity Date in effect as of the date of issuance, whichever is earlier. The Bond L/C shall be issued with the Maturity Date as its expiry date.

  
 (c) Any request for issuance of a Letter of
Credit shall be deemed to be a representation by the Borrower that the conditions set forth in Section 4.2 have been satisfied as of the date of the request. 
  
 (d) If a draft is submitted under a Letter of Credit when the Borrower is unable, because a Default Period
exists or for any other reason, to obtain a Revolving Advance to pay the Obligation of Reimbursement, the Borrower shall pay to the Lender on demand and in immediately available funds, the amount of the Obligation of Reimbursement together with
interest, accrued from the date of the draft until payment in full at the Default Rate. Notwithstanding the Borrower’s inability to obtain a Revolving Advance for any reason, the Lender is irrevocably authorized, in its sole discretion, to make
a Revolving Advance in an amount sufficient to discharge the Obligation of Reimbursement and all accrued but unpaid interest thereon. 
  
 Section 2.5 Special Account. If the Credit Facility is terminated for any reason while any Letter of Credit is outstanding, the Borrower shall
thereupon pay the Lender in immediately available funds for deposit in the Special Account an amount equal to the L/C Amount plus any anticipated fees and costs. If the Borrower fails to promptly make any such payment in the amount required
hereunder, then the Lender may make a Revolving Advance against the Credit Facility in an amount sufficient to fulfill this obligation and deposit the proceeds to the Special Account. The Special Account shall be an interest bearing account either
maintained with the Lender or with a financial institution acceptable to the Lender. Any interest earned on amounts deposited in the Special Account shall be credited to the Special Account. The Lender may apply amounts on deposit in the Special
Account at any time or from time to time to the Obligations in the Lender’s sole discretion. The Borrower may not withdraw any amounts on deposit in the Special Account as long as the Lender maintains a security interest therein. The Lender
agrees to transfer any balance in the Special Account to the Borrower when the Lender is required to release its security interest in the Special Account under applicable law. 
  
 Section 2.6 [Intentionally Omitted]. 
  
 Section 2.7 [Intentionally Omitted]. 
  
 Section 2.8 Interest; Minimum Interest Charge; Default Interest Rate; Application of Payments; Participations; Usury.

  
 (a) Interest. Except as provided in
Section 2.8(d) and Section 2.8(g), the principal amount of each Advance shall bear interest as a Floating Rate Advance. 
  
 (b) [Intentionally Omitted]. 
  
 (c) Minimum Interest Charge. Notwithstanding any other terms of this Agreement to the contrary, the Borrower shall pay to the
Lender interest of not less than $16,000 

  

 15 








 
per calendar month (the “Minimum Interest Charge”) during the term of this Agreement, and the Borrower shall pay any deficiency between the Minimum
Interest Charge and the amount of interest otherwise calculated under Section 2.8(a) on the first day of each month and on the Termination Date. When calculating this deficiency, the Default Rate, if applicable, shall be disregarded.

  
 (d) Default Interest Rate. At any time
during any Default Period or following the Termination Date, in the Lender’s sole discretion and without waiving any of its other rights or remedies, the principal of the Revolving Note shall bear interest at the Default Rate or such lesser
rate as the Lender may determine, effective as of the first day of the month in which any Default Period begins through the last day of such Default Period, or any shorter time period that the Lender may determine. The decision of the Lender to
impose a rate that is less than the Default Rate or to not impose the Default Rate for the entire duration of the Default Period shall be made by the Lender in its sole discretion and shall not be a waiver of any of its other rights and remedies,
including its right to retroactively impose the full Default Rate for the entirety of any such Default Period or following the Termination Date. 
  
 (e) Application of Payments. Payments shall be applied to the Obligations on the Business Day of receipt by the Lender in the
Lender’s general account, but the amount of principal paid shall continue to accrue interest at the interest rate applicable under the terms of this Agreement from the calendar day the Lender receives the payment, and continuing through the end
of the first Business Day following receipt of the payment. 
  
 (f) Participations. If any Person shall acquire a participation in the Advances or the Obligation of Reimbursement, the Borrower shall be obligated to the Lender to pay the full amount of all interest
calculated under this Section 2.8, along with all other fees, charges and other amounts due under this Agreement, regardless if such Person elects to accept interest with respect to its participation at a lower rate than that calculated under
this Section 2.8, or otherwise elects to accept less than its prorata share of such fees, charges and other amounts due under this Agreement. 
  
 (g) Usury. In any event no rate change shall be put into effect which would result in a rate greater than the highest rate
permitted by law. Notwithstanding anything to the contrary contained in any Loan Document, all agreements which either now are or which shall become agreements between the Borrower and the Lender are hereby limited so that in no contingency or event
whatsoever shall the total liability for payments in the nature of interest, additional interest and other charges exceed the applicable limits imposed by any applicable usury laws. If any payments in the nature of interest, additional interest and
other charges made under any Loan Document are held to be in excess of the limits imposed by any applicable usury laws, it is agreed that any such amount held to be in excess shall be considered payment of principal hereunder, and the indebtedness
evidenced hereby shall be reduced by such amount so that the total liability for payments in the nature of interest, additional interest and other charges shall not exceed the applicable limits imposed by any applicable usury laws, in compliance
with the desires of the Borrower and the Lender. This provision shall never be superseded or waived and shall control every other provision of the Loan Documents and all agreements between the Borrower and the Lender, or their successors and
assigns. 
  

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 Section 2.9 Fees. 
  
 (a) Origination Fee. The Borrower shall pay the Lender a fully earned and non-refundable origination
fee of $135,000, payable in three (3) equal installments of $45,000 due upon the execution of this Agreement and on the first two anniversaries thereof. 
  

(b) Unused Line Fee. For the purposes of this Section 2.9(b), “Unused Amount” means the Maximum Line Amount
reduced by (i) the outstanding Revolving Advances, (ii) the Real Estate Reserve, (iii) the Permanent Reserve, and (iv) the Letter of Credit Reserve. The Borrower agrees to pay to the Lender an unused line fee at the rate of
one-quarter of one percent (0.25%) per annum on the average daily Unused Amount from the date of this Agreement to and including the Termination Date, due and payable monthly in arrears on the first day of the month and on the Termination Date.

  
 (c) Facility Fee. The Borrower agrees
to pay to the Lender an annual facility fee in the amount of $25,000, which facility fee shall be due and payable on the first and second anniversary of the Closing Date. 
  
 (d) Collateral Exam Fees. The Borrower shall pay the Lender fees in connection with any collateral
exams, audits or inspections conducted by or on behalf of the Lender of any Collateral or the Borrower’s operations or business at the rates established from time to time by the Lender as its collateral exam fees (which fees are currently $95
per hour per collateral examiner), together with all actual out-of-pocket costs and expenses incurred in conducting any such collateral examination or inspection. 
  
 (e) Letter of Credit Fees. The Borrower shall pay to the Lender a fee with respect to each Letter of
Credit, if any, accruing on a daily basis and computed at an annual rate of one and one-half of one percent (1.5%) of the aggregate amount that may then be drawn, assuming compliance with all conditions for drawing (the “Aggregate Face
Amount”), from and including the date of issuance of such Letter of Credit until such date as such Letter of Credit shall terminate by its terms or be returned to the Lender, due and payable monthly in arrears on the first day of each month and
on the date that the Letter of Credit shall terminate by its terms or be returned to the Lender; provided, however, effective as of the first day of the month in which any Default Period begins through the last day of such Default
Period, or any shorter time period that the Lender may determine, in the Lender’s sole discretion and without waiving any of its other rights and remedies, such fee shall increase to three and one-half of one percent (3.5%) of the
Aggregate Face Amount; provided, further, however, the fee shall not increase as to the face amount of any Letter of Credit that is secured by cash. The foregoing fee shall be in addition to any and all fees, commissions and
charges imposed by Lender with respect to or in connection with such Letter of Credit. 
  
 (f) Letter of Credit Administrative Fees. The Borrower shall pay all administrative fees charged by Lender in connection with the
honoring of drafts under any Letter of Credit, amendments thereto, transfers thereof and all other activity with respect to the Letters of Credit at the then – current rates published by Lender for such services rendered on behalf of customers
of Lender generally. 
  

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 (g) Termination Fee. If (i) the Lender terminates the Credit Facility during
a Default Period, or if (ii) the Borrower terminates the Credit Facility on a date prior to the Maturity Date, then the Borrower shall pay the Lender as liquidated damages a termination fee in an amount equal to a percentage of the Maximum Line
Amount calculated as follows: (A) three percent (3%) if the termination occurs on or before the first anniversary of the Funding Date; (B) two percent (2%) if the termination occurs after the first anniversary of the Funding
Date, but on or before the second anniversary of the Funding Date; and (C) one percent (1%) if the termination occurs after the second anniversary of the Funding Date. 
  
 (h) [Intentionally Omitted]. 
  
 (i) [Intentionally Omitted]. 
  
 (j) Waiver of Termination and Prepayment Fees. The Borrower, at the Lender’s discretion, will be
excused from the payment of termination and prepayment fees otherwise due under Section 2.9(g) if such termination or prepayment is made because of refinancing through another division of Lender. 
  
 (k) Overadvance Fees. The Borrower shall pay an
Overadvance fee in the amount of $500.00 for each day or portion thereof during which an Overadvance exists, regardless of how the Overadvance arises or whether or not the Overadvance has been agreed to in advance by the Lender. The acceptance of
payment of an Overadvance fee by the Lender shall not be deemed to constitute either consent to the Overadvance or a waiver of the resulting Event of Default, unless the Lender specifically consents to the Overadvance in writing and waives the Event
of Default on whatever conditions the Lender deems appropriate. 
  
 (l) Other Fees and Charges; Payment of Fees. The Lender may from time to time impose additional fees and charges as consideration for Advances made in excess of Availability or for other events that constitute
an Event of Default or a Default hereunder, including fees and charges for the administration of Collateral by the Lender, and fees and charges for the late delivery of reports, which may be assessed in the Lender’s sole discretion on either an
hourly, periodic, or flat fee basis, and in lieu of or in addition to imposing interest at the Default Rate. 
  
 Section 2.10 Time for Interest Payments; Payment on Non-Business Days; Computation of Interest and Fees. 
  
 (a) Time For Interest Payments. Accrued and unpaid
interest shall be due and payable on the first day of each month and on the Termination Date (each an “Interest Payment Date”), or if any such day is not a Business Day, on the next succeeding Business Day. Interest will accrue from the
most recent date to which interest has been paid or, if no interest has been paid, from the date of advance to the Interest Payment Date. If an Interest Payment Date is not a Business Day, payment shall be made on the next succeeding Business Day.

  
 (b) Payment on Non-Business Days.
Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be 

  

 18 








 
included in the computation of interest on the Advances or the fees hereunder, as the case may be. 
  
 (c) Computation of Interest and Fees. Interest
accruing on the outstanding principal balance of the Advances and fees hereunder outstanding from time to time shall be computed on the basis of actual number of days elapsed in a year of 360 days. 
  
 Section 2.11 Lockbox and Collateral Account; Sweep of Funds.

  
 (a) Lockbox and Collateral Account.

  
 (i) The Borrower upon request by Lender at
any time after the occurrence of an Event of Default, shall instruct all account debtors to pay all Accounts directly to the Lockbox. If, notwithstanding such instructions, the Borrower receives any payments on Accounts, the Borrower shall deposit
such payments into the Collateral Account. The Borrower shall also deposit all cash proceeds of Collateral regardless of source or nature directly into the Collateral Account. Until so deposited, the Borrower shall hold all such payments and cash
proceeds in trust for and as the property of the Lender and shall not commingle such property with any of its other funds or property. All deposits in the Collateral Account shall constitute proceeds of Collateral and shall not constitute payment of
the Obligations. 
  
 (ii) All items deposited in
the Collateral Account shall be subject to final payment. If any such item is returned uncollected, the Borrower will immediately pay the Lender, or, for items deposited in the Collateral Account, the bank maintaining such account, the amount of
that item, or such bank at its discretion may charge any uncollected item to the Borrower’s commercial account or other account. The Borrower shall be liable as an endorser on all items deposited in the Collateral Account, whether or not in
fact endorsed by the Borrower. 
  
 (b) Sweep
of Funds. The Lender shall from time to time, in accordance with the Wholesale Lockbox and Collection Account Agreement, cause funds in the Collateral Account to be transferred to the Lender’s general account for payment of the Obligations.
Amounts deposited in the Collateral Account shall not be subject to withdrawal by the Borrower, except after payment in full and discharge of all Obligations. 
  

Section 2.12 Voluntary Prepayment; Termination of the Credit Facility by the Borrower. Except as otherwise provided herein, the Borrower may
prepay the Advances in whole at any time or from time to time in part. The Borrower may terminate the Credit Facility at any time if it (i) gives the Lender at least 30 days advance written notice prior to the proposed Termination Date, and
(ii) pays the Lender applicable termination fees in accordance with Section 2.9(g). If the Borrower terminates the Credit Facility, all Obligations shall be immediately due and payable, and if the Borrower gives the Lender less than the
required 30 days advance written notice, then the interest rate applicable to borrowings evidenced by Revolving Note shall be the Default Rate for the period of time commencing 30 days prior to the proposed Termination Date through the date that the
Lender actually receives such written notice. If the Borrower does not wish the Lender to consider renewal of the Credit Facility on the next Maturity Date, then the Borrower shall give the Lender at least 30 days written notice 

  

 19 








 
prior to the Maturity Date that it will not be requesting renewal. If the Borrower fails to give the Lender such timely notice, then the interest rate
applicable to borrowings evidenced by the Revolving Note shall be the Default Rate for the period of time commencing 30 days prior to the Maturity Date through the date that the Lender actually receives such written notice. 
  
 Section 2.13 Mandatory Prepayment. Without notice or demand, if the
sum of the outstanding principal balance of the Revolving Advances shall at any time exceed the Borrowing Base, the Borrower shall (i) first, immediately prepay the Revolving Advances to the extent necessary to eliminate such excess; and
(ii) if prepayment in full of the Revolving Advances is insufficient to eliminate such excess, pay to the Lender in immediately available funds for deposit in the Special Account an amount equal to the remaining excess. Any payment received by
the Lender hereunder or under Section 2.12 may be applied to the Obligations, in such order and in such amounts as the Lender in its sole discretion may determine from time to time. 
  
 Section 2.14 Revolving Advances to Pay Obligations. Notwithstanding the terms of Section 2.1, the Lender may, in
its discretion at any time or from time to time, without the Borrower’s request and even if the conditions set forth in Section 4.2 would not be satisfied, make a Revolving Advance in an amount equal to the portion of the Obligations from
time to time due and payable, and may deliver the proceeds of any such Revolving Advance to any affiliate of the Lender in satisfaction of any Wells Fargo Bank Affiliate Obligations. 
  
 Section 2.15 Use of Proceeds. The Borrower shall use the proceeds of
Advances and each Letter of Credit for ordinary working capital purposes. 
  
 Section 2.16 Liability Records. The Lender may maintain from time to time, at its discretion, records as to the Obligations. All entries made on any such record shall be presumed correct until the Borrower
establishes the contrary. Upon the Lender’s demand, the Borrower will admit and certify in writing the exact principal balance of the Obligations that the Borrower then asserts to be outstanding. Any billing statement or accounting rendered by
the Lender shall be conclusive and fully binding on the Borrower unless the Borrower gives the Lender specific written notice of exception within 30 days after receipt. 
  
 ARTICLE III 
  
 SECURITY INTEREST; OCCUPANCY; SETOFF 
  
 Section 3.1 Grant of Security Interest. The Borrower hereby pledges, assigns and grants to the Lender, for the benefit of itself and as agent for
any affiliate of the Lender that may provide credit or services to the Borrower that constitute Wells Fargo Bank Affiliate Obligations, a lien and security interest (collectively referred to as the “Security Interest”) in the Collateral,
as security for the payment and performance of the Obligations. Upon request by the Lender, the Borrower will grant the Lender, for the benefit of itself and as agent for any affiliate of the Lender that may provide credit or services to the
Borrower that constitute Wells Fargo Bank Affiliate Obligations, a security interest in all commercial tort claims that the Borrower may have against any Person. 
  

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 Section 3.2 Notification of Account Debtors and Other Obligors. The Lender may at any time
(whether or not a Default Period then exists) notify any account debtor or other Person obligated to pay the amount due that such right to payment has been assigned or transferred to the Lender for security and shall be paid directly to the Lender.
The Borrower will join in giving such notice if the Lender so requests. At any time after the Borrower or the Lender gives such notice to an account debtor or other obligor, the Lender may, but need not, in the Lender’s name or in the
Borrower’s name, demand, sue for, collect or receive any money or property at any time payable or receivable on account of, or securing, any such right to payment, or grant any extension to, make any compromise or settlement with or otherwise
agree to waive, modify, amend or change the obligations (including collateral obligations) of any such account debtor or other obligor. The Lender may, in the Lender’s name or in the Borrower’s name, as the Borrower’s agent and
attorney-in-fact, notify the United States Postal Service to change the address for delivery of the Borrower’s mail to any address designated by the Lender, otherwise intercept the Borrower’s mail, and receive, open and dispose of the
Borrower’s mail, applying all Collateral as permitted under this Agreement and holding all other mail for the Borrower’s account or forwarding such mail to the Borrower’s last known address. 
  
 Section 3.3 Assignment of Insurance. As additional security for the
payment and performance of the Obligations, the Borrower hereby assigns to the Lender any and all monies (including proceeds of insurance and refunds of unearned premiums) due or to become due under, and all other rights of the Borrower with respect
to, any and all policies of insurance now or at any time hereafter covering the Collateral or any evidence thereof or any business records or valuable papers pertaining thereto, and the Borrower hereby directs the issuer of any such policy to pay
all such monies directly to the Lender. At any time, whether or not a Default Period then exists, the Lender may (but need not), in the Lender’s name or in the Borrower’s name, execute and deliver proof of claim, receive all such monies,
endorse checks and other instruments representing payment of such monies, and adjust, litigate, compromise or release any claim against the issuer of any such policy. Any monies received as payment for any loss under any insurance policy mentioned
above (other than liability insurance policies) or as payment of any award or compensation for condemnation or taking by eminent domain, shall be paid over to the Lender to be applied, at the option of the Lender, either to the prepayment of the
Obligations or shall be disbursed to the Borrower under staged payment terms reasonably satisfactory to the Lender for application to the cost of repairs, replacements, or restorations. Any such repairs, replacements, or restorations shall be
effected with reasonable promptness and shall be of a value at least equal to the value of the items or property destroyed prior to such damage or destruction. 
  

Section 3.4 Occupancy. 
  
 (a) The Borrower hereby irrevocably grants to the Lender the right to take exclusive possession of the Premises at any time during a
Default Period without notice or consent. 
  
 (b)
The Lender may use the Premises only to hold, process, manufacture, sell, use, store, liquidate, realize upon or otherwise dispose of goods that are Collateral and for other purposes that the Lender may in good faith deem to be related or incidental
purposes. 
  

 21 








 (c) The Lender’s right to hold the Premises shall cease and terminate upon the
earlier of (i) payment in full and discharge of all Obligations and termination of the Credit Facility, and (ii) final sale or disposition of all goods constituting Collateral and delivery of all such goods to purchasers. 
  
 (d) The Lender shall not be obligated to pay or account for
any rent or other compensation for the possession, occupancy or use of any of the Premises; provided, however, that if the Lender does pay or account for any rent or other compensation for the possession, occupancy or use of any of the
Premises, the Borrower shall reimburse the Lender promptly for the full amount thereof. In addition, the Borrower will pay, or reimburse the Lender for, all taxes, fees, duties, imposts, charges and expenses at any time incurred by or imposed upon
the Lender by reason of the execution, delivery, existence, recordation, performance or enforcement of this Agreement or the provisions of this Section 3.4. 
  
 Section 3.5 License. Without limiting the generality of any other Security Document, the Borrower hereby grants to
the Lender a non-exclusive, worldwide and royalty-free license to use or otherwise exploit all Intellectual Property Rights of the Borrower for the purpose of: (a) completing the manufacture of any in-process materials during any Default Period
so that such materials become saleable Inventory, all in accordance with the same quality standards previously adopted by the Borrower for its own manufacturing and subject to the Borrower’s reasonable exercise of quality control; and
(b) selling, leasing or otherwise disposing of any or all Collateral during any Default Period. 
  
 Section 3.6 Financing Statement. The Borrower authorizes the Lender to file from time to time, such financing statements against collateral
described as “all personal property” or “all assets” or describing specific items of collateral including commercial tort claims as the Lender deems necessary or useful to perfect the Security Interest. All financing statements
filed before the date hereof to perfect the Security Interest were authorized by the Borrower and are hereby re-authorized. A carbon, photographic or other reproduction of this Agreement or of any financing statements signed by the Borrower is
sufficient as a financing statement and may be filed as a financing statement in any state to perfect the security interests granted hereby. For this purpose, the Borrower represents and warrants that the following information is true and correct:

  
 Name and address of Debtor: 
  
 Provena Foods Inc. 
 5010 Eucalyptus Avenue 
 Chino, California
91710 
  
 Federal Employer Identification No. 95-2782215

 Organizational Identification No. C0662567 
  
 Name and address of Secured Party: 
 Wells
Fargo Business Credit 
 245 South Los Robles Avenue, Suite 700 
 Pasadena, California 91101 
  

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 Section 3.7 Setoff. The Lender may at any time or from time to time, at its sole discretion and
without demand and without notice to anyone, setoff any liability owed to the Borrower by the Lender, whether or not due, against any Obligation, whether or not due. In addition, each other Person holding a participating interest in any Obligations
shall have the right to appropriate or setoff any deposit or other liability then owed by such Person to the Borrower, whether or not due, and apply the same to the payment of said participating interest, as fully as if such Person had lent directly
to the Borrower the amount of such participating interest. 
  
 Section 3.8 Collateral. This Agreement does not contemplate a sale of accounts, contract rights or chattel paper, and, as provided by law, the Borrower is entitled to any surplus and shall remain liable for any deficiency. The
Lender’s duty of care with respect to Collateral in its possession (as imposed by law) shall be deemed fulfilled if it exercises reasonable care in physically keeping such Collateral, or in the case of Collateral in the custody or possession of
a bailee or other third Person, exercises reasonable care in the selection of the bailee or other third Person, and the Lender need not otherwise preserve, protect, insure or care for any Collateral. The Lender shall not be obligated to preserve any
rights the Borrower may have against prior parties, to realize on the Collateral at all or in any particular manner or order or to apply any cash proceeds of the Collateral in any particular order of application. The Lender has no obligation to
clean-up or otherwise prepare the Collateral for sale. The Borrower waives any right it may have to require the Lender to pursue any third Person for any of the Obligations. 
  
 ARTICLE IV 
  
 CONDITIONS OF LENDING 
  
 Section 4.1 Conditions Precedent to the Initial Advances and Letter of Credit. The Lender’s obligation to make the initial Advances or to
cause any Letters of Credit to be issued shall be subject to the condition precedent that the Lender shall have received all of the following, each properly executed by the appropriate party and in form and substance satisfactory to the Lender:

  
 (a) This Agreement. 
  
 (b) The Note. 
  
 (c) A Standby Letter of Credit Agreement and L/C Application
for each Letter of Credit that the Borrower wishes to have issued thereunder. 
  
 (d) The Letter of Credit Reimbursement Agreement and all documents related thereto, including any opinions of counsel requested by Lender. 
  
 (e) The Deed of Trust. 
  

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 (f) A true and correct copy of any and all leases pursuant to which the Borrower is
leasing the Premises, together with a landlord’s disclaimer and consent with respect to each such lease. 
  
 (g) A true and correct copy of any and all mortgages pursuant to which the Borrower has mortgaged the Premises, together with a
mortgagee’s disclaimer and consent with respect to each such mortgage. 
  
 (h) A true and correct copy of any and all agreements pursuant to which the Borrower’s property is in the possession of any Person other than the Borrower, together with, in the case of any goods held by such
Person for resale, (i) a consignee’s acknowledgment and waiver of Liens, (ii) UCC financing statements sufficient to protect the Borrower’s and the Lender’s interests in such goods, and (iii) UCC searches showing that
no other secured party has filed a financing statement against such Person and covering property similar to the Borrower’s other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received
notice from the Borrower and the Lender sufficient to protect the Borrower’s and the Lender’s interests in the Borrower’s goods from any claim by such secured party. 
  
 (i) An acknowledgment and waiver of Liens from each warehouse in which the Borrower is storing Inventory.

  
 (j) A true and correct copy of any and all
agreements pursuant to which the Borrower’s property is in the possession of any Person other than the Borrower, together with, (i) an acknowledgment and waiver of Liens from each subcontractor who has possession of the Borrower’s
goods from time to time, (ii) UCC financing statements sufficient to protect the Borrower’s and the Lender’s interests in such goods, and (iii) UCC searches showing that no other secured party has filed a financing statement
covering such Person’s property other than the Borrower, or if there exists any such secured party, evidence that each such secured party has received notice from the Borrower and the Lender sufficient to protect the Borrower’s and the
Lender’s interests in the Borrower’s goods from any claim by such secured party. 
  
 (k) The Wholesale Lockbox and Collection Account Agreement. 
  
 (l) Control agreements with each bank at which the Borrower maintains deposit accounts. 
  
 (m) Pledge agreement executed by Borrower in favor of Lender
with respect to the money market investment account maintained by Wells Fargo Brokerage, LLC together with a control agreement executed by Borrower and Wells Fargo Brokerage, LLC in favor of Lender, all in form and substance satisfactory to Lender.

  
 (n) A Patent and Trademark Security
Agreement. 
  
 (o) Current searches of
appropriate filing offices showing that (i) no Liens have been filed and remain in effect against the Borrower except Permitted Liens or Liens held by Persons who have agreed in writing that upon receipt of proceeds of the initial Advances,
they will satisfy, release or terminate such Liens in a manner satisfactory to the Lender, and (ii) the 

  

 24 








 
Lender has duly filed all financing statements necessary to perfect the Security Interest, to the extent the Security Interest is capable of being perfected
by filing. 
  
 (p) A certificate of the
Borrower’s Secretary or Assistant Secretary certifying that attached to such certificate are (i) the resolutions of the Borrower’s Directors and, if required, Owners, authorizing the execution, delivery and performance of the Loan
Documents, (ii) true, correct and complete copies of the Borrower’s Constituent Documents, and (iii) examples of the signatures of the Borrower’s Officers or agents authorized to execute and deliver the Loan Documents and other
instruments, agreements and certificates, including Advance requests, on the Borrower’s behalf. 
  
 (q) A current certificate issued by the Secretary of State of California, certifying that the Borrower is in compliance with all
applicable organizational requirements of the State of California. 
  
 (r) Evidence that the Borrower is duly licensed or qualified to transact business in all jurisdictions where the character of the property owned or leased or the nature of the business transacted by it makes such
licensing or qualification necessary. 
  
 (s) A
certificate of an Officer of the Borrower confirming, in his personal capacity, the representations and warranties set forth in Article V. 
  
 (t) A Validity Guaranty executed by Theodore Arena and Tom Mulroney in his personal capacity in favor of the Lender. 
  
 (u) Certificates of the insurance required hereunder, with
all hazard insurance containing a lender’s loss payable endorsement in the Lender’s favor and with all liability insurance naming the Lender as an additional insured. 
  
 (v) Payment of the fees and commissions due under Section 2.9 through the date of the initial Advance
or Letter of Credit and expenses incurred by the Lender through such date and required to be paid by the Borrower under Section 8.5, including all legal expenses incurred through the date of this Agreement. 
  
 (w) Evidence that after making the initial Revolving
Advance, satisfying all obligations owed to Comerica Bank, satisfying all trade payables older than 60 days from invoice date, book overdrafts and closing costs, Availability shall be not less than $3,000,000. 
  
 (x) A Customer Identification Information form and such
other forms and verification as the Lender may need to comply with the U.S.A. Patriot Act. 
  
 (y) with respect to the real estate that is encumbered by the Deed of Trust(i) an appraisal ordered by the Lender or its agent of said
real property and all improvements thereon, conforming to Uniform Standards of Professional Appraisal Practice and issued by a real estate appraiser acceptable to the Lender, reflecting values acceptable to the Lender in its discretion, (ii) an
American Land Title Association policy of title insurance, with such endorsements as the Lender may require, issued by an insurer in such amounts as the Lender may require, insuring the Lender’s first priority lien on said real estate, subject
only to such 

  

 25 








 
exceptions as the Lender in its discretion may approve, together with such evidence relating to the payment of liens or potential liens as the Lender may
require, and (iii) an American Land Title Association survey certified to the Lender and to the title company that is acceptable to the Lender. 
  
 (z) with respect to the real estate that is encumbered by the Deed of Trust (i) a current environmental site assessment indicating
that the real property is subject to no “recognized environmental conditions”, as that term is defined by the American Society for Testing and Materials, in its standards for environmental due diligence, and is not in need of remedial
action to avoid subjecting its owner to any present or future liability or contingent liability with respect to the release of toxic or hazardous wastes or substances. 
  
 (aa) with respect to the real estate that is encumbered by the Deed of Trust (i) a flood hazard
determination form, confirming whether or not the parcel is in a flood hazard area and whether or not flood insurance must be obtained, and, if the real estate is located in a flood hazard area, (ii) a policy of flood insurance. 
  
 (bb) with respect to the real estate that is encumbered by
the Deed of Trust, copies of management services and maintenance contracts, fire, health and safety reports, certificates of occupancy, leases and rent rolls, and such other information relating to the real estate and the improvements thereon that
the Lender in its discretion deems necessary. 
  
 (cc) Such other documents as the Lender in its sole discretion may require. 
  
 Section 4.2 Conditions Precedent to All Advances and Letters of Credit. The Lender’s obligation to make each Advance or to cause the issuance of a Letter of Credit shall be subject to the further
conditions precedent that: 
  
 (a) the
representations and warranties contained in Article V are correct on and as of the date of such Advance or issuance of a Letter of Credit as though made on and as of such date, except to the extent that such representations and warranties relate
solely to an earlier date; and 
  
 (b) no event
has occurred and is continuing, or would result from such Advance or issuance of a Letter of Credit which constitutes a Default or an Event of Default. 
  
 ARTICLE V 
  
 REPRESENTATIONS AND WARRANTIES 
  
 The Borrower represents and warrants to the Lender as follows: 
  
 Section 5.1 Existence and Power; Name; Chief Executive Office; Inventory and Equipment Locations; Federal Employer Identification Number and
Organizational Identification Number. The Borrower is a corporation, duly organized, validly existing and in good standing under the laws of the State of California and is duly licensed or qualified to transact business in all jurisdictions
where the character of the property owned or leased or the nature of the business transacted by it makes such licensing or qualification necessary. The Borrower has all requisite 

  

 26 








 
power and authority to conduct its business, to own its properties and to execute and deliver, and to perform all of its obligations under, the Loan
Documents. During its existence, the Borrower has done business solely under the names set forth in Schedule 5.1. The Borrower’s chief executive office and principal place of business is located at the address set forth in Schedule 5.1, and all
of the Borrower’s records relating to its business or the Collateral are kept at that location. All Inventory and Equipment is located at that location or at one of the other locations listed in Schedule 5.1. The Borrower’s federal
employer identification number and organization identification number are correctly set forth in Section 3.6. 
  
 Section 5.2 Capitalization. Schedule 5.2 constitutes a correct and complete list of all Persons holding ownership interests and rights to acquire
ownership interests which if fully exercised would cause such Person to hold more than five percent (5%) of all ownership interests of the Borrower on a fully diluted basis, and an organizational chart showing the ownership structure of all
Subsidiaries of the Borrower. 
  
 Section 5.3 Authorization of
Borrowing; No Conflict as to Law or Agreements. The execution, delivery and performance by the Borrower of the Loan Documents and the borrowings from time to time hereunder have been duly authorized by all necessary corporate action and do not
and will not (i) require any consent or approval of the Borrower’s Owners; (ii) require any authorization, consent or approval by, or registration, declaration or filing with, or notice to, any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or any third party, except such authorization, consent, approval, registration, declaration, filing or notice as has been obtained, accomplished or given prior to the date hereof;
(iii) violate any provision of any law, rule or regulation (including Regulation X of the Board of Governors of the Federal Reserve System) or of any order, writ, injunction or decree presently in effect having applicability to the Borrower or
of the Borrower’s Constituent Documents; (iv) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other material agreement, lease or instrument to which the Borrower is a party or by which
it or its properties may be bound or affected; or (v) result in, or require, the creation or imposition of any Lien (other than the Security Interest) upon or with respect to any of the properties now owned or hereafter acquired by the
Borrower. 
  
 Section 5.4 Legal Agreements. This Agreement
constitutes and, upon due execution by the Borrower, the other Loan Documents will constitute the legal, valid and binding obligations of the Borrower, enforceable against the Borrower in accordance with their respective terms. 
  
 Section 5.5 Subsidiaries. Except as set forth in Schedule 5.5 hereto,
the Borrower has no Subsidiaries. 
  
 Section 5.6 Financial
Condition; No Adverse Change. The Borrower has furnished to the Lender its audited financial statements for its fiscal year ended December 31, 2004 and unaudited financial statements for the fiscal-year-to-date period ended August 31,
2005, and those statements fairly present the Borrower’s financial condition on the dates thereof and the results of its operations and cash flows for the periods then ended and were prepared in accordance with GAAP. Since the date of the most
recent financial statements, there has been no 

  

 27 








 
change in the Borrower’s business, properties or condition (financial or otherwise) which has had a Material Adverse Effect. 
  
 Section 5.7 Litigation. There are no actions, suits or proceedings
pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or any of its Affiliates or the properties of the Borrower or any of its Affiliates before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, which, if determined adversely to the Borrower or any of its Affiliates, would have a Material Adverse Effect on the financial condition, properties or operations of the Borrower or any of its
Affiliates. 
  
 Section 5.8 Regulation U. The Borrower is
not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System), and no part of the proceeds of any Advance will be
used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. 
  
 Section 5.9 Taxes. The Borrower and its Affiliates have paid or caused to be paid to the proper authorities when due all federal, state and local
taxes required to be withheld by each of them. The Borrower and its Affiliates have filed all federal, state and local tax returns which to the knowledge of the Officers of the Borrower or any Affiliate, as the case may be, are required to be filed,
and the Borrower and its Affiliates have paid or caused to be paid to the respective taxing authorities all taxes as shown on said returns or on any assessment received by any of them to the extent such taxes have become due. 
  
 Section 5.10 Titles and Liens. The Borrower has good and absolute
title to all Collateral free and clear of all Liens other than Permitted Liens. No financing statement naming the Borrower as debtor is on file in any office except to perfect only Permitted Liens. 
  
 Section 5.11 Intellectual Property Rights. 
  
 (a) Owned Intellectual Property. Schedule 5.11 is a
complete list of all patents, applications for patents, trademarks, applications to register trademarks, service marks, applications to register service marks, mask works, trade dress and copyrights for which the Borrower is the owner of record (the
“Owned Intellectual Property”). Except as disclosed on Schedule 5.11, (i) the Borrower owns the Owned Intellectual Property free and clear of all restrictions (including covenants not to sue a third party), court orders, injunctions,
decrees, writs or Liens, whether by written agreement or otherwise, (ii) no Person other than the Borrower owns or has been granted any right in the Owned Intellectual Property, (iii) all Owned Intellectual Property is valid, subsisting
and enforceable and (iv) the Borrower has taken all commercially reasonable action necessary to maintain and protect the Owned Intellectual Property. 
  
 (b) Agreements with Employees and Contractors. The Borrower has entered into a legally enforceable agreement with each of its
employees and subcontractors obligating each such Person to assign to the Borrower, without any additional compensation, any Intellectual Property Rights created, discovered or invented by such Person in the course of such Person’s employment
or engagement with the Borrower (except to the extent prohibited by law), 

  

 28 








 
and further requiring such Person to cooperate with the Borrower, without any additional compensation, in connection with securing and enforcing any
Intellectual Property Rights therein; provided, however, that the foregoing shall not apply with respect to employees and subcontractors whose job descriptions are of the type such that no such assignments are reasonably foreseeable.

  
 (c) Intellectual Property Rights Licensed
from Others. Schedule 5.11 is a complete list of all agreements under which the Borrower has licensed Intellectual Property Rights from another Person (“Licensed Intellectual Property”) other than readily available, non-negotiated
licenses of computer software and other intellectual property used solely for performing accounting, word processing and similar administrative tasks (“Off-the-shelf Software”) and a summary of any ongoing payments the Borrower is
obligated to make with respect thereto. Except as disclosed on Schedule 5.11 and in written agreements, copies of which have been given to the Lender, the Borrower’s licenses to use the Licensed Intellectual Property are free and clear of all
restrictions, Liens, court orders, injunctions, decrees, or writs, whether by written agreement or otherwise. Except as disclosed on Schedule 5.11, the Borrower is not obligated or under any liability whatsoever to make any payments of a material
nature by way of royalties, fees or otherwise to any owner of, licensor of, or other claimant to, any Intellectual Property Rights. 
  
 (d) Other Intellectual Property Needed for Business. Except for Off-the-shelf Software and as disclosed on Schedule 5.11, the Owned
Intellectual Property and the Licensed Intellectual Property constitute all Intellectual Property Rights used or necessary to conduct the Borrower’s business as it is presently conducted or as the Borrower reasonably foresees conducting it.

  
 (e) Infringement. Except as disclosed
on Schedule 5.11, the Borrower has no knowledge of, and has not received any written claim or notice alleging, any Infringement of another Person’s Intellectual Property Rights (including any written claim that the Borrower must license or
refrain from using the Intellectual Property Rights of any third party) nor, to the Borrower’s knowledge, is there any threatened claim or any reasonable basis for any such claim. 
  
 Section 5.12 Plans. Except as disclosed to the Lender in writing prior to the date hereof, neither the Borrower nor
any ERISA Affiliate (i) maintains or has maintained any Pension Plan, (ii) contributes or has contributed to any Multiemployer Plan or (iii) provides or has provided post-retirement medical or insurance benefits with respect to
employees or former employees (other than benefits required under Section 601 of ERISA, Section 4980B of the IRC or applicable state law). Neither the Borrower nor any ERISA Affiliate has received any notice or has any knowledge to the
effect that it is not in full compliance with any of the requirements of ERISA, the IRC or applicable state law with respect to any Plan. No Reportable Event exists in connection with any Pension Plan. Each Plan which is intended to qualify under
the IRC is so qualified, and no fact or circumstance exists which may have an adverse effect on the Plan’s tax-qualified status. Neither the Borrower nor any ERISA Affiliate has (i) any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the IRC) under any Plan, whether or not waived, (ii) any liability under Section 4201 or 4243 of ERISA for any withdrawal, partial withdrawal, reorganization or other event under any
Multiemployer Plan or (iii) any liability or knowledge of any facts or circumstances which could result in any liability to 

  

 29 








 
the Pension Benefit Guaranty Corporation, the Internal Revenue Service, the Department of Labor or any participant in connection with any Plan (other than
routine claims for benefits under the Plan). 
  
 Section 5.13
Default. The Borrower is in compliance with all provisions of all agreements, instruments, decrees and orders to which it is a party or by which it or its property is bound or affected, the breach or default of which could have a Material
Adverse Effect. 
  
 Section 5.14 Environmental Matters.

  
 (a) Except as disclosed on Schedule 5.14,
there are not present in, on or under the Premises any Hazardous Substances in such form or quantity as to create any material liability or obligation for either the Borrower or the Lender under the common law of any jurisdiction or under any
Environmental Law, and no Hazardous Substances have ever been stored, buried, spilled, leaked, discharged, emitted or released in, on or under the Premises in such a way as to create any such material liability. 
  
 (b) Except as disclosed on Schedule 5.14, the Borrower has
not disposed of Hazardous Substances in such a manner as to create any material liability under any Environmental Law. 
  
 (c) Except as disclosed on Schedule 5.14, there have not existed in the past, nor are there any threatened or impending requests, claims,
notices, investigations, demands, administrative proceedings, hearings or litigation relating in any way to the Premises or the Borrower, alleging material liability under, violation of, or noncompliance with any Environmental Law or any license,
permit or other authorization issued pursuant thereto. 
  
 (d) Except as disclosed on Schedule 5.14, the Borrower’s businesses are and have in the past always been conducted in accordance with all Environmental Laws and all licenses, permits and other authorizations required pursuant to any
Environmental Law and necessary for the lawful and efficient operation of such businesses are in the Borrower’s possession and are in full force and effect, nor has the Borrower been denied insurance on grounds related to potential
environmental liability. No permit required under any Environmental Law is scheduled to expire within 12 months and there is no threat that any such permit will be withdrawn, terminated, limited or materially changed. 
  
 (e) Except as disclosed on Schedule 5.14, the Premises are
not and never have been listed on the National Priorities List, the Comprehensive Environmental Response, Compensation and Liability Information System or any similar federal, state or local list, schedule, log, inventory or database. 
  
 (f) The Borrower has delivered to the Lender all
environmental assessments, audits, reports, permits, licenses and other documents describing or relating in any way to the Premises or the Borrower’s businesses. 
  
 Section 5.15 Submissions to Lender. All financial and other information provided to the Lender by or on behalf of the
Borrower in connection with the Borrower’s request for the credit facilities contemplated hereby (i) is true and correct in all material respects, (ii) does not 

  

 30 








 
omit any material fact necessary to make such information not misleading and, (iii) as to projections, valuations or proforma financial statements,
present a good faith opinion as to such projections, valuations and proforma condition and results. 
  
 Section 5.16 Financing Statements. The Borrower has authorized the filing of financing statements sufficient when filed to perfect the Security
Interest and the other security interests created by the Security Documents. When such financing statements are filed in the offices noted therein, the Lender will have a valid and perfected security interest in all Collateral which is capable of
being perfected by filing financing statements. None of the Collateral is or will become a fixture on real estate, unless a sufficient fixture filing is in effect with respect thereto. 
  
 Section 5.17 Rights to Payment. Each right to payment and each instrument, document, chattel paper and other
agreement constituting or evidencing Collateral is (or, in the case of all future Collateral, will be when arising or issued) the valid, genuine and legally enforceable obligation, subject to no defense, setoff or counterclaim, of the account debtor
or other obligor named therein or in the Borrower’s records pertaining thereto as being obligated to pay such obligation. 
  
 Section 5.18 Financial Solvency. Both before and after giving effect to the transactions contemplated in the Loan Documents, none of the Borrower
or its Affiliates: 
  
 (a) Was or will be
insolvent, as that term is used and defined in Section 101(32) of the United States Bankruptcy Code and Section 2 of the Uniform Fraudulent Transfer Act; 
  
 (b) Has unreasonably small capital or is engaged or about to engage in a business or a transaction for which
any remaining assets of the Borrower or such Affiliate are unreasonably small; 
  
 (c) By executing, delivering or performing its obligations under the Loan Documents or other documents to which it is a party or by taking
any action with respect thereto, intends to, nor believes that it will, incur debts beyond its ability to pay them as they mature; 
  
 (d) By executing, delivering or performing its obligations under the Loan Documents or other documents to which it is a party or by taking
any action with respect thereto, intends to hinder, delay or defraud either its present or future creditors; and 
  
 (e) At this time contemplates filing a petition in bankruptcy or for an arrangement or reorganization or similar proceeding under any law
of any jurisdiction, nor, to the best knowledge of the Borrower, is the subject of any actual, pending or threatened bankruptcy, insolvency or similar proceedings under any law of any jurisdiction. 
  
 Section 5.19 No Merger. The Borrower has not consolidated with or
merged into any Person, or permitted any other Person to merge into it, or acquired (in a transaction analogous in purpose or effect to a consolidation or merger) all or substantially all the assets of any other Person at any time during the five
(5) year period immediately prior to the date hereof. 
  

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 ARTICLE VI 

 
 COVENANTS 
  
 So long as the Obligations shall remain unpaid, or the Credit Facility shall
remain outstanding, the Borrower will comply with the following requirements, unless the Lender shall otherwise consent in writing: 
  
 Section 6.1 Reporting Requirements. The Borrower will deliver, or cause to be delivered, to the Lender each of the following, which shall be in
form and detail acceptable to the Lender: 
  
 (a)
Annual Financial Statements. As soon as available, and in any event within 90 days after the end of each fiscal year of the Borrower, the Borrower’s audited financial statements with the unqualified opinion of independent certified
public accountants selected by the Borrower and acceptable to the Lender, which annual financial statements shall include the Borrower’s balance sheet as at the end of such fiscal year and the related statements of the Borrower’s income,
retained earnings and cash flows for the fiscal year then ended, prepared, if the Lender so requests, on a consolidating and consolidated basis to include any Affiliates, all in reasonable detail and prepared in accordance with GAAP, together with
(i) copies of all management letters prepared by such accountants; (ii) a report signed by such accountants stating that in making the investigations necessary for said opinion they obtained no knowledge, except as specifically stated, of
any Default or Event of Default and all relevant facts in reasonable detail to evidence, and the computations as to, whether or not the Borrower is in compliance with the Financial Covenants; and (iii) a certificate of the Borrower’s chief
financial officer stating that such financial statements have been prepared in accordance with GAAP, fairly represent the Borrower’s financial position and the results of its operations, and whether or not such Officer has knowledge of the
occurrence of any Default or Event of Default and, if so, stating in reasonable detail the facts with respect thereto. 
  
 (b) Monthly Financial Statements. As soon as available and in any event within 20 days after the end of each month, the
unaudited/internal balance sheet and statements of income and retained earnings of the Borrower as at the end of and for such month and for the year to date period then ended, prepared, if the Lender so requests, on a consolidating and consolidated
basis to include any Affiliates, in reasonable detail and stating in comparative form the figures for the corresponding date and periods in the previous year, all prepared in accordance with GAAP, subject to year-end audit adjustments and which
fairly represent the Borrower’s financial position and the results of its operations; and accompanied by a certificate of the Borrower’s chief financial officer, substantially in the form of Exhibit B hereto stating (i) that such
financial statements have been prepared in accordance with GAAP, subject to year-end audit adjustments, and fairly represent the Borrower’s financial position and the results of its operations, (ii) whether or not such Officer has
knowledge of the occurrence of any Default or Event of Default not theretofore reported and remedied and, if so, stating in reasonable detail the facts with respect thereto, and (iii) all relevant facts in reasonable detail to evidence, and the
computations as to, whether or not the Borrower is in compliance with the Financial Covenants. 
  

 32 








 (c) Collateral Reports. Within 20 days after the end of each month or more
frequently if the Lender so requires, the aging Borrower’s accounts receivable and its accounts payable, a detailed inventory report, an inventory certification report, and a calculation of the Borrower’s Accounts, Eligible
Accounts, Inventory and Eligible Inventory and Accounts reconciliation as at the end of such month or shorter time period. 
  
 (d) Projections. No later than 30 days prior to the first day of each fiscal year, the Borrower’s projected balance sheets,
income statements, statements of cash flow and projected Availability for each month of such fiscal year, each in reasonable detail. Such items will be certified by the Officer who is the Borrower’s chief financial officer as being the most
accurate projections available and identical to the projections used by the Borrower for internal planning purposes and be delivered with a statement of underlying assumptions and such supporting schedules and information as the Lender may in its
discretion require. 
  
 (e) Supplemental
Reports. Weekly, or more frequently if the Lender so requires, the Borrower’s collection reports, copies of invoices and bills of lading for individual sales in excess of $65,000, sales reports, credit memos and Accounts adjustments.

  
 (f) Litigation. Immediately after the
commencement thereof, notice in writing of all litigation and of all proceedings before any governmental or regulatory agency affecting the Borrower (i) of the type described in Section 5.14(c) or (ii) which seek a monetary recovery
against the Borrower in excess of $50,000. 
  
 (g) Defaults. When any Officer of the Borrower becomes aware of the probable occurrence of any Default or Event of Default, and no later than 3 days after such Officer becomes aware of such Default or Event of Default, notice of such
occurrence, together with a detailed statement by a responsible Officer of the Borrower of the steps being taken by the Borrower to cure the effect thereof. 
  
 (h) Plans. As soon as possible, and in any event within 30 days after the Borrower knows or has reason to know that any Reportable
Event with respect to any Pension Plan has occurred, a statement signed by the Officer who is the Borrower’s chief financial officer setting forth details as to such Reportable Event and the action which the Borrower proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event to the Pension Benefit Guaranty Corporation. As soon as possible, and in any event within 10 days after the Borrower fails to make any quarterly contribution required with
respect to any Pension Plan under Section 412(m) of the IRC, the Borrower will deliver to the Lender a statement signed by the Officer who is the Borrower’s chief financial officer setting forth details as to such failure and the action
which the Borrower proposes to take with respect thereto, together with a copy of any notice of such failure required to be provided to the Pension Benefit Guaranty Corporation. As soon as possible, and in any event within ten days after the
Borrower knows or has reason to know that it has or is reasonably expected to have any liability under Sections 4201 or 4243 of ERISA for any withdrawal, partial withdrawal, reorganization or other event under any Multiemployer Plan, the Borrower
will deliver to the Lender a statement of the Borrower’s chief financial officer setting forth details as to such liability and the action which the Borrower proposes to take with respect thereto. 
  

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 (i) Disputes. Promptly upon knowledge thereof, notice of (i) any disputes or
claims by the Borrower’s customers; (ii) credit memos; and (iii) any goods returned to or recovered by the Borrower. 
  
 (j) Officers and Directors. Promptly upon knowledge thereof, notice of any change in the persons constituting the Borrower’s
Officers and Directors. 
  
 (k)
Collateral. Promptly upon knowledge thereof, notice of any loss of or material damage to any Collateral or of any substantial adverse change in any Collateral or the prospect of payment thereof. 
  
 (l) Commercial Tort Claims. Promptly upon knowledge
thereof, notice of any commercial tort claims it may bring against any Person, including the name and address of each defendant, a summary of the facts, an estimate of the Borrower’s damages, copies of any complaint or demand letter submitted
by the Borrower, and such other information as the Lender may request. 
  
 (m) Intellectual Property. 
  
 (i) 30 days prior written notice of Borrower’s intent to acquire material Intellectual Property Rights; except for transfers permitted under Section 6.18, the Borrower will give the Lender 30 days prior
written notice of its intent to dispose of material Intellectual Property Rights and upon request shall provide the Lender with copies of all proposed documents and agreements concerning such rights. 
  
 (ii) Promptly upon knowledge thereof, notice of (A) any
Infringement of its Intellectual Property Rights by others, (B) claims that the Borrower is Infringing another Person’s Intellectual Property Rights and (C) any threatened cancellation, termination or material limitation of its
Intellectual Property Rights. 
  
 (iii) Promptly
upon receipt, copies of all registrations and filings with respect to its Intellectual Property Rights. 
  
 (n) Reports to Owners. Promptly upon their distribution, copies of all financial statements, reports and proxy statements which the
Borrower shall have sent to its Owners. 
  
 (o)
SEC Filings. Promptly after the sending or filing thereof, copies of all regular and periodic reports which the Borrower shall file with the Securities and Exchange Commission or any national securities exchange. 
  
 (p) Tax Returns of Borrower. As soon as possible, and
in any event no later than five days after they are due to be filed, copies of the state and federal income tax returns and all schedules thereto of the Borrower. 
  
 (q) Violations of Law. Promptly upon knowledge thereof, notice of the Borrower’s violation of
any law, rule or regulation, the non-compliance with which could have a Material Adverse Effect on the Borrower. 
  

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 (r) Other Reports. From time to time, with reasonable promptness, any and all
deposit records, equipment schedules, copies of invoices to account debtors, shipment documents and delivery receipts for goods sold, and such other material, reports, records or information as the Lender may request, including but not
limited to an updated listing of the Borrower’s Customers which shall be delivered to Lender on a semi-annual basis. 
  
 Section 6.2 Financial Covenants. 
  
 (a) Minimum Book Net Worth. The Borrower will maintain, during each period described below, its Book Net Worth, determined as of
the end of each month, in an amount not less than the amount set forth for each such period: 
  

				
	 Period

	  	Minimum Book
Net Worth


	 August 1, 2005 through September 30, 2005
	  	$	7,800,000
	 October 1, 2005 Through December 31, 2005
	  	$	7,500,000
	 January 1, 2006 Through March 31, 2006
	  	$	7,500,000
	 April 1 Through June 30, 2006
	  	$	7,500,000
	 July 1, 2006 Through September 30, 2006
	  	$	7,500,000
	 October 1, 2006 Through December 31, 2006
	  	$	7,600,000
	 January 1, 2007 and each month thereafter
	  	$	7,600,000

  
 (b)
Minimum Net Income/Maximum Net Loss. The Borrower will achieve, for each period described below, measured on a year-to-date basis, Net Income/Net Loss of not less or more (as the case may be) than the amount set forth for each such period
(numbers appearing between “( )” are negative): 
  

					
	 Quarter

	  	 Minimum Net Income/
 Maximum Net Loss

	 
	 Quarter ending September 30, 2005
	  	$	(750,000	)
	 Quarter ending December 31, 2005
	  	$	(900,000	)
	 Quarter ending March 31, 2006
	  	$	(200,000	)
	 Quarter ending June 30, 2006
	  	$	(200,000	)
	 Quarter ending September 30, 2006
	  	$	(250,000	)
	 Quarter ending December 31, 2006
	  	$	(250,000	)

  
 (c)
Minimum Debt Service Coverage Ratio. The Borrower will maintain, during each period described below, measured on a year-to-date basis, a Debt Service Coverage Ratio, determined as at the end of each quarter, of not less than the ratio set
forth for each such period: 
  

			
	 Quarter

	  	Minimum Debt Service
Coverage Ratio


	 Quarter ending June 30, 2006
	  	0.15 to 1.00
	 Quarter ending September 30, 2006
	  	0.20 to 1.00
	 Quarter ending December 31, 2006
	  	0.28 to 1.00
	 Quarter ending March 31, 2007
	  	1.00 to 1.00

  

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 (d) Capital Expenditures. The Borrower will not incur or contract to incur Capital
Expenditures of more than $500,000 in the aggregate during any fiscal year. 
  
 Section 6.3 Permitted Liens; Financing Statements. 
  
 (a) The Borrower will not create, incur or suffer to exist any Lien upon or of any of its assets, now owned or hereafter acquired, to
secure any indebtedness; excluding, however, from the operation of the foregoing, the following (each a “Permitted Lien”; collectively, “Permitted Liens”): 
  
 (i) In the case of any of the Borrower’s property which
is not Collateral, covenants, restrictions, rights, easements and minor irregularities in title which do not materially interfere with the Borrower’s business or operations as presently conducted; 
  
 (ii) Liens in existence on the date hereof and listed in
Schedule 6.3 hereto, securing indebtedness for borrowed money permitted under Section 6.4; 
  
 (iii) The Security Interest and Liens created by the Security Documents; and 
  
 (iv) Purchase money Liens relating to the acquisition of
machinery and equipment of the Borrower not exceeding the lesser of cost or fair market value thereof, not exceeding $50,000 for any one purchase or $100,000 in the aggregate during any fiscal year, and so long as no Default Period is then in
existence and none would exist immediately after such acquisition. 
  
 (b) The Borrower will not amend any financing statements in favor of the Lender except as permitted by law. Any authorization by the Lender to any Person to amend financing statements in favor of the Lender shall be
in writing. 
  
 Section 6.4 Indebtedness. The Borrower will
not incur, create, assume or permit to exist any indebtedness or liability on account of deposits or advances or any indebtedness for borrowed money or letters of credit issued on the Borrower’s behalf, or any other indebtedness or liability
evidenced by notes, bonds, debentures or similar obligations, except: 
  
 (a) Indebtedness arising hereunder; 
  
 (b) Indebtedness of the Borrower in existence on the date hereof and listed in Schedule 6.4 hereto; and 
  
 (c) Indebtedness relating to Permitted Liens. 
  

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 Section 6.5 Guaranties. The Borrower will not assume, guarantee, endorse or otherwise become
directly or contingently liable in connection with any obligations of any other Person, except: 
  
 (a) The endorsement of negotiable instruments by the Borrower for deposit or collection or similar transactions in the ordinary course of
business; and 
  
 (b) Guaranties, endorsements
and other direct or contingent liabilities in connection with the obligations of other Persons, in existence on the date hereof and listed in Schedule 6.4 hereto. 
  
 Section 6.6 Investments and Subsidiaries. The Borrower will not make or permit to exist any loans or advances to, or
make any investment or acquire any interest whatsoever in, any other Person or Affiliate, including any partnership or joint venture, nor purchase or hold beneficially any stock or other securities or evidence of indebtedness of any other Person or
Affiliate, except: 
  
 (a) Investments in direct
obligations of the United States of America or any agency or instrumentality thereof whose obligations constitute full faith and credit obligations of the United States of America having a maturity of one year or less, commercial paper issued by
U.S. corporations rated “A-1” or “A-2” by Standard & Poor’s Ratings Services or “P-1” or “P-2” by Moody’s Investors Service or certificates of deposit or bankers’ acceptances having a
maturity of one year or less issued by members of the Federal Reserve System having deposits in excess of $100,000,000 (which certificates of deposit or bankers’ acceptances are fully insured by the Federal Deposit Insurance Corporation);

  
 (b) Travel advances or loans to the
Borrower’s Officers and employees not exceeding at any one time an aggregate of $50,000; 
  
 (c) Prepaid rent not exceeding one month or security deposits; and 
  
 (d) Current investments in the Subsidiaries in existence on the date hereof and listed in Schedule 5.5
hereto. 
  
 Section 6.7 Dividends and Distributions. The
Borrower will not declare or pay any dividends (other than dividends payable solely in stock of the Borrower) on any class of its stock, or make any payment on account of the purchase, redemption or other retirement of any shares of such stock, or
other securities or evidence of its indebtedness or make any distribution in respect thereof, either directly or indirectly. 
  
 Section 6.8 Salaries. The Borrower will not pay excessive or unreasonable salaries, bonuses, commissions, consultant fees or other compensation; or
increase the salary, bonus, commissions, consultant fees or other compensation of any Director, Officer or consultant, or any member of their families, by more than 10% in any one year, either individually or for all such persons in the aggregate,
or pay any such increase from any source other than profits earned in the year of payment. 
  
 Section 6.9 [Intentionally Omitted]. 
  

 37 








 Section 6.10 Books and Records; Collateral Examination, Inspection and Appraisals. 
  
 (a) The Borrower will keep accurate books of record and
account for itself pertaining to the Collateral and pertaining to the Borrower’s business and financial condition and such other matters as the Lender may from time to time request in which true and complete entries will be made in accordance
with GAAP and, upon the Lender’s request, will permit any officer, employee, attorney, accountant or other agent of the Lender to audit, review, make extracts from or copy any and all company and financial books and records of the Borrower at
all times during ordinary business hours, to send and discuss with account debtors and other obligors requests for verification of amounts owed to the Borrower, and to discuss the Borrower’s affairs with any of its Directors, Officers,
employees or agents. 
  
 (b) The Borrower hereby
irrevocably authorizes all accountants and third parties to disclose and deliver to the Lender or its designated agent, at the Borrower’s expense, all financial information, books and records, work papers, management reports and other
information in their possession regarding the Borrower. 
  
 (c) The Borrower will permit the Lender or its employees, accountants, attorneys or agents, to examine and inspect any Collateral or any other property of the Borrower at any time during ordinary business hours.

  
 Section 6.11 Account Verification. 
  
 (a) The Lender or its agent may at any time and from time to
time send or require the Borrower to send requests for verification of accounts or notices of assignment to account debtors and other obligors. The Lender or its agent may also at any time and from time to time telephone account debtors and other
obligors to verify accounts. 
  
 (b) The Borrower
shall pay when due each account payable due to a Person holding a Permitted Lien (as a result of such payable) on any Collateral. 
  
 Section 6.12 Compliance with Laws. 
  
 (a) The Borrower shall (i) comply, and cause each Subsidiary to comply, with the requirements of applicable laws and
regulations, the non-compliance with which would materially and adversely affect its business or its financial condition and (ii) use and keep the Collateral, and require that others use and keep the Collateral, only for lawful purposes,
without violation of any federal, state or local law, statute or ordinance. 
  
 (b) Without limiting the foregoing undertakings, the Borrower specifically agrees that it will comply, and cause each Subsidiary to comply, with all applicable Environmental Laws and obtain and comply with all
permits, licenses and similar approvals required by any Environmental Laws, and will not generate, use, transport, treat, store or dispose of any Hazardous Substances in such a manner as to create any material liability or obligation under the
common law of any jurisdiction or any Environmental Law. 
  
 (c) The Borrower shall (i) ensure, and cause each Subsidiary to ensure, that no Owner shall be listed on the Specially Designated Nationals and Blocked Person List or other 

  

 38 








 
similar lists maintained by the Office of Foreign Assets Control (“OFAC”), the Department of the Treasury or included in any Executive Orders,
(ii) not use or permit the use of the proceeds of the Credit Facility or any other financial accommodation from the Lender to violate any of the foreign asset control regulations of OFAC or other applicable law, (iii) comply, and
cause each Subsidiary to comply, with all applicable Bank Secrecy Act laws and regulations, as amended from time to time, and (iv) otherwise comply with the USA Patriot Act as required by federal law and the Lender’s policies and
practices. 
  
 Section 6.13 Payment of Taxes and Other
Claims. The Borrower will pay or discharge, when due, (a) all taxes, assessments and governmental charges levied or imposed upon it or upon its income or profits, upon any properties belonging to it (including the Collateral) or upon or
against the creation, perfection or continuance of the Security Interest, prior to the date on which penalties attach thereto, (b) all federal, state and local taxes required to be withheld by it, and (c) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon any properties of the Borrower; provided, that the Borrower shall not be required to pay any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which proper reserves have been made. 
  
 Section 6.14 Maintenance of Properties. 
  
 (a) The Borrower will keep and maintain the Collateral and all of its other properties necessary or useful in its business in good
condition, repair and working order (normal wear and tear excepted) and will from time to time replace or repair any worn, defective or broken parts; provided, however, that nothing in this covenant shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties if such discontinuance is, in the Borrower’s judgment, desirable in the conduct of the Borrower’s business and not disadvantageous in any material respect to the Lender.
The Borrower will take all commercially reasonable steps necessary to protect and maintain its Intellectual Property Rights. 
  
 (b) The Borrower will defend the Collateral against all Liens, claims or demands of all Persons (other than the Lender) claiming the
Collateral or any interest therein. The Borrower will keep all Collateral free and clear of all Liens except Permitted Liens. The Borrower will take all commercially reasonable steps necessary to prosecute any Person Infringing its Intellectual
Property Rights and to defend itself against any Person accusing it of Infringing any Person’s Intellectual Property Rights. 
  
 Section 6.15 Insurance. The Borrower will obtain and at all times maintain insurance with insurers acceptable to the Lender, in such amounts, on
such terms (including any deductibles) and against such risks as may from time to time be required by the Lender, but in all events in such amounts and against such risks as is usually carried by companies engaged in similar business and owning
similar properties in the same general areas in which the Borrower operates. Without limiting the generality of the foregoing, the Borrower will at all times maintain business interruption insurance including coverage for force majeure and keep all
tangible Collateral insured against risks of fire (including so-called extended coverage), theft, collision (for Collateral consisting of motor vehicles) and such other risks and in such amounts as the Lender may reasonably request, with any loss
payable to the Lender to the extent of its 

  

 39 








 
interest, and all policies of such insurance shall contain a lender’s loss payable endorsement for the Lender’s benefit. All policies of liability
insurance required hereunder shall name the Lender as an additional insured. 
  
 Section 6.16 Preservation of Existence. The Borrower will preserve and maintain its existence and all of its rights, privileges and franchises necessary or desirable in the normal conduct of its business and
shall conduct its business in an orderly, efficient and regular manner. 
  
 Section 6.17 Delivery of Instruments, etc. Upon request by the Lender, the Borrower will promptly deliver to the Lender in pledge all instruments, documents and chattel paper constituting Collateral, duly endorsed or assigned by the
Borrower. 
  
 Section 6.18 Sale or Transfer of Assets;
Suspension of Business Operations. The Borrower will not sell, lease, assign, transfer or otherwise dispose of (i) the stock of any Subsidiary, (ii) all or a substantial part of its assets, or (iii) any Collateral or any interest
therein (whether in one transaction or in a series of transactions) to any other Person other than the sale of Inventory in the ordinary course of business and will not liquidate, dissolve or suspend business operations. The Borrower will not
transfer any part of its ownership interest in any Intellectual Property Rights and will not permit any agreement under which it has licensed Licensed Intellectual Property to lapse, except that the Borrower may transfer such rights or permit such
agreements to lapse if it shall have reasonably determined that the applicable Intellectual Property Rights are no longer useful in its business. If the Borrower transfers any Intellectual Property Rights for value, the Borrower will pay over the
proceeds to the Lender for application to the Obligations. The Borrower will not license any other Person to use any of the Borrower’s Intellectual Property Rights, except that the Borrower may grant licenses in the ordinary course of its
business in connection with sales of Inventory or provision of services to its customers. 
  
 Section 6.19 Consolidation and Merger; Asset Acquisitions. The Borrower will not consolidate with or merge into any Person, or permit any other Person to merge into it, or acquire (in a transaction analogous in
purpose or effect to a consolidation or merger) all or substantially all the assets of any other Person. 
  
 Section 6.20 Sale and Leaseback. The Borrower will not enter into any arrangement, directly or indirectly, with any other Person whereby the
Borrower shall sell or transfer any real or personal property, whether now owned or hereafter acquired, and then or thereafter rent or lease as lessee such property or any part thereof or any other property which the Borrower intends to use for
substantially the same purpose or purposes as the property being sold or transferred. 
  
 Section 6.21 Restrictions on Nature of Business. The Borrower will not engage in any line of business materially different from that presently engaged in by the Borrower and will not purchase, lease or
otherwise acquire assets not related to its business. 
  
 Section
6.22 Accounting. The Borrower will not adopt any material change in accounting principles other than as required by GAAP. The Borrower will not adopt, permit or consent to any change in its fiscal year. 
  

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 Section 6.23 Discounts, etc. After notice from the Lender, the Borrower will not grant any
discount, credit or allowance to any customer of the Borrower or accept any return of goods sold. The Borrower will not at any time modify, amend, subordinate, cancel or terminate the obligation of any account debtor or other obligor of the
Borrower. 
  
 Section 6.24 Plans. Unless disclosed to the
Lender pursuant to Section 5.12, neither the Borrower nor any ERISA Affiliate will (i) adopt, create, assume or become a party to any Pension Plan, (ii) incur any obligation to contribute to any Multiemployer Plan, (iii) incur
any obligation to provide post-retirement medical or insurance benefits with respect to employees or former employees (other than benefits required by law) or (iv) amend any Plan in a manner that would materially increase its funding
obligations. 
  
 Section 6.25 Place of Business; Name. The
Borrower will not transfer its chief executive office or principal place of business, or move, relocate, close or sell any business location. The Borrower will not permit any tangible Collateral or any records pertaining to the Collateral to be
located in any state or area in which, in the event of such location, a financing statement covering such Collateral would be required to be, but has not in fact been, filed in order to perfect the Security Interest. The Borrower will not change its
name or jurisdiction of organization. 
  
 Section 6.26
Constituent Documents; S Corporation Status. The Borrower will not amend its Constituent Documents without the consent of Lender, which consent will not be unreasonably withheld. The Borrower will not become an S Corporation.

  
 Section 6.27 Performance by the Lender. If the Borrower
at any time fails to perform or observe any of the foregoing covenants contained in this Article VI or elsewhere herein, and if such failure shall continue for a period of ten calendar days after the Lender gives the Borrower written notice thereof
(or in the case of the agreements contained in Section 6.13 and Section 6.15, immediately upon the occurrence of such failure, without notice or lapse of time), the Lender may, but need not, perform or observe such covenant on behalf and
in the name, place and stead of the Borrower (or, at the Lender’s option, in the Lender’s name) and may, but need not, take any and all other actions which the Lender may reasonably deem necessary to cure or correct such failure (including
the payment of taxes, the satisfaction of Liens, the performance of obligations owed to account debtors or other obligors, the procurement and maintenance of insurance, the execution of assignments, security agreements and financing statements, and
the endorsement of instruments); and the Borrower shall thereupon pay to the Lender on demand the amount of all monies expended and all costs and expenses (including reasonable attorneys’ fees and legal expenses) incurred by the Lender in
connection with or as a result of the performance or observance of such agreements or the taking of such action by the Lender, together with interest thereon from the date expended or incurred at the Default Rate. To facilitate the Lender’s
performance or observance of such covenants of the Borrower, the Borrower hereby irrevocably appoints the Lender, or the Lender’s delegate, acting alone, as the Borrower’s attorney in fact (which appointment is coupled with an interest)
with the right (but not the duty) from time to time to create, prepare, complete, execute, deliver, endorse or file in the name and on behalf of the Borrower any and all instruments, documents, assignments, security agreements, financing statements,
applications for insurance and other agreements and writings required to be obtained, executed, delivered or endorsed by the Borrower hereunder. 
  

 41 








 Section 6.28 Engagement of Kibel Green Inc. Borrower shall hire and continue to use the services
of Kibel Green Inc. in order to identify key areas of improvement in the Borrower’s business and to assist the Borrower in preparing cash flow models and monthly projections, until Borrower has achieved a positive Net Income for at least four
(4) consecutive quarters. 
  
 ARTICLE VII 

 
 EVENTS OF DEFAULT, RIGHTS AND REMEDIES 
  
 Section 7.1 Events of Default. “Event of Default”, wherever
used herein, means any one of the following events: 
  
 (a) Default in the payment of any Obligations when they become due and payable; 
  
 (b) Default in the performance, or breach, of any covenant or agreement of the Borrower contained in this Agreement or any Loan Document;

  
 (c) An Overadvance arises as the result of
any reduction in the Borrowing Base, or arises in any manner on terms not otherwise approved of in advance by the Lender in writing; 
  
 (d) A Change of Control shall occur; 
  
 (e) Any Financial Covenant shall become inapplicable due to the lapse of time and the failure to amend any such covenant to cover future
periods; 
  
 (f) The Borrower or any Guarantor
shall be or become insolvent, or admit in writing its or his inability to pay its or his debts as they mature, or make an assignment for the benefit of creditors; or the Borrower or any Guarantor shall apply for or consent to the appointment of any
receiver, trustee, or similar officer for it or him or for all or any substantial part of its or his property; or such receiver, trustee or similar officer shall be appointed without the application or consent of the Borrower or such Guarantor, as
the case may be; or the Borrower or any Guarantor shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding
relating to it or him under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against the Borrower or any such Guarantor; or any judgment, writ, warrant of attachment or execution or
similar process shall be issued or levied against a substantial part of the property of the Borrower or any Guarantor; 
  
 (g) A petition shall be filed by or against the Borrower or any Guarantor under the United States Bankruptcy Code naming the Borrower or
such Guarantor as debtor; 
  
 (h) Any
representation or warranty made by the Borrower in this Agreement, by any Guarantor in any guaranty delivered to the Lender, or by the Borrower (or any of its Officers) or any Guarantor in any agreement, certificate, instrument or financial
statement or 

  

 42 








 
other statement contemplated by or made or delivered pursuant to or in connection with this Agreement or any such guaranty shall prove to have been incorrect
in any material respect when deemed to be effective; 
  
 (i) The rendering against the Borrower of an arbitration award, final judgment, decree or order for the payment of money in excess of $50,000 and the continuance of such arbitration award, judgment, decree or order unsatisfied and in effect
for any period of 30 consecutive days without a stay of execution; 
  
 (j) A default under any bond, debenture, note or other evidence of material indebtedness of the Borrower owed to any Person other than the Lender, or under any indenture or other instrument under which any such
evidence of indebtedness has been issued or by which it is governed, or under any material lease or other contract, and the expiration of the applicable period of grace, if any, specified in such evidence of indebtedness, indenture, other
instrument, lease or contract; 
  
 (k) Any
Reportable Event, which the Lender determines in good faith might constitute grounds for the termination of any Pension Plan or for the appointment by the appropriate United States District Court of a trustee to administer any Pension Plan, shall
have occurred and be continuing 30 days after written notice to such effect shall have been given to the Borrower by the Lender; or a trustee shall have been appointed by an appropriate United States District Court to administer any Pension Plan; or
the Pension Benefit Guaranty Corporation shall have instituted proceedings to terminate any Pension Plan or to appoint a trustee to administer any Pension Plan; or the Borrower or any ERISA Affiliate shall have filed for a distress termination of
any Pension Plan under Title IV of ERISA; or the Borrower or any ERISA Affiliate shall have failed to make any quarterly contribution required with respect to any Pension Plan under Section 412(m) of the IRC, which the Lender determines in good
faith may by itself, or in combination with any such failures that the Lender may determine are likely to occur in the future, result in the imposition of a Lien on the Borrower’s assets in favor of the Pension Plan; or any withdrawal, partial
withdrawal, reorganization or other event occurs with respect to a Multiemployer Plan which results or could reasonably be expected to result in a material liability of the Borrower to the Multiemployer Plan under Title IV of ERISA; 
  
 (l) An event of default shall occur under any Security
Document; 
  
 (m) The Borrower shall liquidate,
dissolve, terminate or suspend its business operations or otherwise fail to operate its business in the ordinary course, merge with another Person unless the Borrower is the surviving entity; or sell or attempt to sell all or substantially all of
its assets, without the Lender’s prior written consent; 
  
 (n) Default in the payment of any amount owed by the Borrower to the Lender other than any indebtedness arising hereunder; 
  
 (o) Any Person signing a validity guaranty in favor of the Lender shall repudiate, purport to revoke or fail to perform any obligation
under such validity guaranty in favor of the Lender, any such Person shall die and no replacement, acceptable to Lender, shall execute a validity guaranty within 60 days of the death of such Person; 
  

 43 








 (p) Any event or circumstance with respect to the Borrower shall occur such that the
Lender shall believe in good faith that the prospect of payment of all or any part of the Obligations or the performance by the Borrower under the Loan Documents is impaired or any material adverse change in the business or financial condition of
the Borrower shall occur; 
  
 (q) Any breach,
default or event of default by or attributable to any Affiliate under any agreement between such Affiliate and the Lender shall occur; or 
  
 (r) The indictment of any Director, Officer, Guarantor, or any Owner of the Borrower for a felony offence under state or federal law.

  
 Section 7.2 Rights and Remedies. During any Default
Period, the Lender may exercise any or all of the following rights and remedies: 
  
 (a) The Lender may, by notice to the Borrower, declare the Commitment to be terminated, whereupon the same shall forthwith terminate;

  
 (b) The Lender may, by notice to the
Borrower, declare the Obligations to be forthwith due and payable, whereupon all Obligations shall become and be forthwith due and payable, without presentment, notice of dishonor, protest or further notice of any kind, all of which the Borrower
hereby expressly waives; 
  
 (c) The Lender may,
without notice to the Borrower and without further action, apply any and all money owing by the Lender to the Borrower to the payment of the Obligations; 
  
 (d) The Lender may exercise and enforce any and all rights and remedies available upon default to a secured party under the UCC, including
the right to take possession of Collateral, or any evidence thereof, proceeding without judicial process or by judicial process (without a prior hearing or notice thereof, which the Borrower hereby expressly waives) and the right to sell, lease or
otherwise dispose of any or all of the Collateral (with or without giving any warranties as to the Collateral, title to the Collateral or similar warranties), and, in connection therewith, the Borrower will on demand assemble the Collateral and make
it available to the Lender at a place to be designated by the Lender which is reasonably convenient to both parties; 
  
 (e) The Lender may make demand upon the Borrower and, forthwith upon such demand, the Borrower will pay to the Lender in immediately
available funds for deposit in the Special Account pursuant to Section 2.5 an amount equal to the aggregate maximum amount available to be drawn under all Letters of Credit then outstanding, assuming compliance with all conditions for drawing
thereunder; 
  
 (f) The Lender may exercise and
enforce its rights and remedies under the Loan Documents; 
  
 (g) The Lender may without regard to any waste, adequacy of the security or solvency of the Borrower, apply for the appointment of a receiver of the Collateral, to which appointment the Borrower hereby consents,
whether or not foreclosure proceedings have been 

  

 44 








 
commenced under the Security Documents and whether or not a foreclosure sale has occurred; and 
  
 (h) The Lender may exercise any other rights and remedies available to it by law or agreement. 

 
 Notwithstanding the foregoing, upon the occurrence of an Event of Default described in
Section 7.1(f) or (g), the Obligations shall be immediately due and payable automatically without presentment, demand, protest or notice of any kind. If the Lender sells any of the Collateral on credit, the Obligations will be reduced only to
the extent of payments actually received. If the purchaser fails to pay for the Collateral, the Lender may resell the Collateral and shall apply any proceeds actually received to the Obligations. 
  
 Section 7.3 Certain Notices. If notice to the Borrower of any intended
disposition of Collateral or any other intended action is required by law in a particular instance, such notice shall be deemed commercially reasonable if given (in the manner specified in Section 8.3) at least ten calendar days before the date
of intended disposition or other action. 
  
 ARTICLE VIII

  
 MISCELLANEOUS 
  
 Section 8.1 No Waiver; Cumulative Remedies; Compliance with Laws. No
failure or delay by the Lender in exercising any right, power or remedy under the Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy under the Loan Documents. The remedies provided in the Loan Documents are cumulative and not exclusive of any remedies provided by law. The Lender may comply with any applicable state or
federal law requirements in connection with a disposition of the Collateral and such compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. 
  
 Section 8.2 Amendments, Etc. No amendment, modification, termination
or waiver of any provision of any Loan Document or consent to any departure by the Borrower therefrom or any release of a Security Interest shall be effective unless the same shall be in writing and signed by the Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific purpose for which given. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other
circumstances. 
  
 Section 8.3 Notices; Communication of
Confidential Information; Requests for Accounting. Except as otherwise expressly provided herein, all notices, requests, demands and other communications provided for under the Loan Documents shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight courier of national reputation, (d) transmitted by telecopy, or (e) sent as electronic mail, in each case delivered or sent to the party to whom notice
is being given to the business address, telecopier number, or e mail address set forth below next to its signature or, as to each party, at such other 

  

 45 








 
business address, telecopier number, or e mail address as it may hereafter designate in writing to the other party pursuant to the terms of this Section. All
such notices, requests, demands and other communications shall be deemed to be an authenticated record communicated or given on (a) the date received if personally delivered, (b) when deposited in the mail if delivered by mail,
(c) the date delivered to the courier if delivered by overnight courier, or (d) the date of transmission if sent by telecopy or by e mail, except that notices or requests delivered to the Lender pursuant to any of the provisions of Article
II shall not be effective until received by the Lender. All notices, financial information, or other business records sent by either party to this Agreement may be transmitted, sent, or otherwise communicated via such medium as the sending party may
deem appropriate and commercially reasonable; provided, however, that the risk that the confidentiality or privacy of such notices, financial information, or other business records sent by either party may be compromised shall be borne
exclusively by the Borrower. All requests for an accounting under Section 9-210 of the UCC (i) shall be made in a writing signed by a Person authorized under Section 2.2(b), (ii) shall be personally delivered, sent by registered
or certified mail, return receipt requested, or by overnight courier of national reputation, (iii) shall be deemed to be sent when received by the Lender and (iv) shall otherwise comply with the requirements of Section 9-210. The
Borrower requests that the Lender respond to all such requests which on their face appear to come from an authorized individual and releases the Lender from any liability for so responding. The Borrower shall pay the Lender the maximum amount
allowed by law for responding to such requests. 
  
 Section 8.4
Further Documents. The Borrower will from time to time execute, deliver, endorse and authorize the filing of any and all instruments, documents, conveyances, assignments, security agreements, financing statements, control agreements and other
agreements and writings that the Lender may reasonably request in order to secure, protect, perfect or enforce the Security Interest or the Lender’s rights under the Loan Documents (but any failure to request or assure that the Borrower
executes, delivers, endorses or authorizes the filing of any such item shall not affect or impair the validity, sufficiency or enforceability of the Loan Documents and the Security Interest, regardless of whether any such item was or was not
executed, delivered or endorsed in a similar context or on a prior occasion). 
  
 Section 8.5 Costs and Expenses. The Borrower shall pay on demand all costs and expenses, including reasonable attorneys’ fees, incurred by the Lender in connection with the Obligations, this Agreement, the
Loan Documents, any Letter of Credit and any other document or agreement related hereto or thereto, and the transactions contemplated hereby, including all such costs, expenses and fees incurred in connection with the negotiation, preparation,
execution, amendment, administration, performance, collection and enforcement of the Obligations and all such documents and agreements and the creation, perfection, protection, satisfaction, foreclosure or enforcement of the Security Interest.

  
 Section 8.6 Indemnity. In addition to the payment of
expenses pursuant to Section 8.6, the Borrower shall indemnify, defend and hold harmless the Lender, and any of its participants, parent corporations, subsidiary corporations, affiliated corporations, successor corporations, and all present and
future officers, directors, employees, attorneys and agents of the foregoing (the “Indemnitees”) from and against any of the following (collectively, “Indemnified Liabilities”): 
  
 (i) Any and all transfer taxes, documentary taxes,
assessments or charges made by any governmental authority by reason of the execution and delivery of the Loan Documents or the making of the Advances; 
  

 46 








 (ii) Any claims, loss or damage to which any Indemnitee may be subjected if any
representation or warranty contained in Section 5.14 proves to be incorrect in any respect or as a result of any violation of the covenant contained in Section 6.12(b) ; and 
  
 (iii) Any and all other liabilities, losses, damages, penalties, judgments, suits, claims, costs and
expenses of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel) in connection with the foregoing and any other investigative, administrative or judicial proceedings, whether or not such Indemnitee shall be
designated a party thereto, which may be imposed on, incurred by or asserted against any such Indemnitee, in any manner related to or arising out of or in connection with the making of the Advances and the Loan Documents or the use or intended use
of the proceeds of the Advances. Notwithstanding the foregoing, the Borrower shall not be obligated to indemnify any Indemnitee for any Indemnified Liability caused by the gross negligence or willful misconduct of such Indemnitee. 
  
 If any investigative, judicial or administrative proceeding arising from any of the foregoing
is brought against any Indemnitee, upon such Indemnitee’s request, the Borrower, or counsel designated by the Borrower and satisfactory to the Indemnitee, will resist and defend such action, suit or proceeding to the extent and in the manner
directed by the Indemnitee, at the Borrower’s sole costs and expense. Each Indemnitee will use its best efforts to cooperate in the defense of any such action, suit or proceeding. If the foregoing undertaking to indemnify, defend and hold
harmless may be held to be unenforceable because it violates any law or public policy, the Borrower shall nevertheless make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrower’s obligation under this Section 8.6 shall survive the termination of this Agreement and the discharge of the Borrower’s other obligations hereunder. 
  
 Section 8.7 Participants. The Lender and its participants, if any, are
not partners or joint venturers, and the Lender shall not have any liability or responsibility for any obligation, act or omission of any of its participants. All rights and powers specifically conferred upon the Lender may be transferred or
delegated to any of the Lender’s participants, successors or assigns. 
  
 Section 8.8 Execution in Counterparts; Telefacsimile Execution. This Agreement and other Loan Documents may be executed in any number of counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. Delivery of an executed counterpart of this Agreement by telefacsimile shall be equally as effective as delivery of an original
executed counterpart of this Agreement. Any party delivering an executed counterpart of this Agreement by telefacsimile also shall deliver an original executed counterpart of this Agreement but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this Agreement. 
  
 Section 8.9 Retention of Borrower’s Records. The Lender shall have no obligation to maintain any electronic records or any documents, schedules, invoices, agings, or other papers 

  

 47 








 
delivered to the Lender by the Borrower or in connection with the Loan Documents for more than 30 days after receipt by the Lender. If there is a special
need to retain specific records, the Borrower must inform the Lender of its need to retain those records with particularity, which must be delivered in accordance with the notice provisions of Section 8.3 within 30 days of the Lender taking
control of same. 
  
 Section 8.10 Binding Effect; Assignment;
Complete Agreement; Sharing Information. The Loan Documents shall be binding upon and inure to the benefit of the Borrower and the Lender and their respective successors and assigns, except that the Borrower shall not have the right to assign
its rights thereunder or any interest therein without the Lender’s prior written consent. To the extent permitted by law, the Borrower waives and will not assert against any assignee any claims, defenses or set-offs which the Borrower could
assert against the Lender. This Agreement shall also bind all Persons who become a party to this Agreement as a borrower. This Agreement, together with the Loan Documents, comprises the complete and integrated agreement of the parties on the subject
matter hereof and supersedes all prior agreements, written or oral, on the subject matter hereof. To the extent that any provision of this Agreement contradicts other provisions of the Loan Documents, this Agreement shall control. Without limiting
the Lender’s right to share information regarding the Borrower and its Affiliates with the Lender’s participants, accountants, lawyers and other advisors, the Lender may share any and all information they may have in their possession
regarding the Borrower and its Affiliates, and the Borrower waives any right of confidentiality it may have with respect to such sharing of information. 
  
 Section 8.11 Severability of Provisions. Any provision of this Agreement which is prohibited or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof. 
  
 Section 8.12 Headings. Article, Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

  
 Section 8.13 Governing Law; Jurisdiction, Venue. The
Loan Documents shall be governed by and construed in accordance with the substantive laws (other than conflict laws) of the State of California. The parties hereto hereby (i) consent to the personal jurisdiction of the state and federal courts
located in the State of California in connection with any controversy related to this Agreement; (ii) waive any argument that venue in any such forum is not convenient; (iii) agree that any litigation initiated by the Lender or the
Borrower in connection with this Agreement or the other Loan Documents may be venued in either the state or federal courts located in the County of Los Angeles, California and (iv) agree that a final judgment in any such suit, action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 
  
 Section 8.14 Arbitration. 
  
 (a) Arbitration. The parties hereto agree, upon demand by any party, to submit to binding arbitration all claims, disputes and
controversies between or among them (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, 

  

 48 








 
contract or otherwise arising out of or relating to in any way this Agreement and their negotiation, execution, modification, extension, substitution,
formation, inducement, enforcement, default or termination. 
  
 (b) Governing Rules. Any arbitration proceeding will (i) proceed in a location in California selected by the American Arbitration Association (“AAA”); (ii) be governed by the Federal
Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such other administrator as the parties shall
mutually agree upon, in accordance with the AAA’s commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the arbitration shall
be conducted in accordance with the AAA’s optional procedures for large, complex commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be referred to, as
applicable, as the “Rules”). If there is any inconsistency between the terms hereof and the Rules, the terms and procedures set forth herein shall control. Any party who fails or refuses to submit to arbitration following a demand by any
other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any dispute. Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12
U.S.C. §91 or any similar applicable state law. 
  
 (c) No Waiver of Provisional Remedies, Self-Help and Foreclosure. The arbitration requirement does not limit the right of any party to (i) foreclose against collateral or real estate collateral; (ii) exercise self-help
remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after
the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any party to submit any dispute to arbitration or reference hereunder, including those arising from the exercise of the actions
detailed in sections (i), (ii) and (iii) of this paragraph. 
  
 (d) Arbitrator Qualifications and Powers. Any arbitration proceeding will be decided by a single arbitrator selected according to the Rules. The arbitrator will be a neutral attorney licensed in the State of
California or a neutral retired judge of the state or federal judiciary of California, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated. The arbitrator will
determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator’s
discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of California and may
grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and
fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant to the Federal Rules of Civil Procedure, the California Rules of Civil Procedure or other applicable law. Judgment
upon the award rendered by the arbitrator may be entered in any court having 

  

 49 








 
jurisdiction. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver
of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief. 
  
 (e) Discovery. In any arbitration proceeding discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date and within 180 days of the filing of the dispute with the AAA. Any
requests for an extension of the discovery periods, or any discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party’s presentation and that no
alternative means for obtaining information is available. 
  
 (f) Expert Witnesses and Reports. If either party chooses to present an expert witness, Section 2034 of the Code of Civil Procedure of the State of California or any successor provision shall be applicable
to the arbitration whether or not the California Arbitration Act is deemed to apply to the arbitration. 
  
 (g) Payment of Arbitration Costs and Fees. The arbitrator shall award all costs and expenses of the arbitration proceeding.

  
 (h) Real Property Collateral; Judicial
Reference. Notwithstanding anything herein to the contrary, no dispute shall be submitted to arbitration if the dispute concerns indebtedness secured directly or indirectly, in whole or in part, by any real property unless (i) the holder of
the deed of trust, mortgage, lien or security interest specifically elects in writing to proceed with the arbitration, or (ii) all parties to the arbitration waive any rights or benefits that might accrue to them by virtue of the single action
rule statute of California, thereby agreeing that all indebtedness and obligations of the parties, and all deeds of trust, mortgages, liens and security interests securing such indebtedness and obligations, shall remain fully valid and enforceable.
If any such dispute is not submitted to arbitration, the dispute shall be referred to a referee in accordance with California Code of Civil Procedure Section 638 et seq., and this general reference agreement is intended to be specifically
enforceable in accordance with said Section 638. A referee with the qualifications required herein for arbitrators shall be selected pursuant to the AAA’s selection procedures. Judgment upon the decision rendered by a referee shall be
entered in the court in which such proceeding was commenced in accordance with California Code of Civil Procedure Sections 644 and 645. 
  
 (i) Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by
a party required in the ordinary course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between the parties potentially applies to a dispute, the arbitration provision most directly related to the
Agreement or the subject matter of the dispute shall control. This arbitration provision shall survive termination, amendment or expiration of this Agreement or any relationship between the parties. 
  

 50 








  
 [Remainder of page
intentionally left blank.] 
  

 51 








 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective
officers thereunto duly authorized as of the date first above written. 
  

									
	 Provena Foods Inc.
 5010 Eucalyptus
Avenue
 Chino, California 91710
	 	 	 	PROVENA FOODS INC.
	 Telecopier:
	 	 (909) 627-7315
	 	 	 	 By:
	 	 /s/ Thomas J. Mulroney

	 Attention: Thomas J. Mulroney
	 	 	 	 Name:
	 	 Thomas J. Mulroney

	 e-mail: provenafds@aol.com
	 	 	 	 Title:
	 	 Chief Financial Officer

			
	 Wells Fargo Business Credit
 245 South Los
Robles Avenue, Suite 700
 Pasadena, California 91101
 Telecopier:
(626) 844-9063
 Attention: Tony S. Lee
	 	 	 	 WELLS FARGO BANK, NATIONAL
 ASSOCIATION, acting through its Wells
 Fargo Business Credit operating division

	 e-mail: tony.s.lee@wellsfargo.com
	 	 	 	 By:
	 	 /s/ Angelo Samperisi

	 	 	 	 	 	 	 Name:
	 	 Angelo Samperisi

	 	 	 	 	 	 	 Title:
	 	 Vice President


  

 S-1 








  
 Table of Exhibits and
Schedules 
  

			
	 Exhibit A
	  	Form of Revolving Note
		
	 Exhibit B
	  	Compliance Certificate
		
	 Exhibit C
	  	Premises
		
	 Schedule 5.1
	  	Trade Names, Chief Executive Office, Principal Place of Business, and Locations of Collateral
		
	 Schedule 5.2
	  	Capitalization and Organizational Chart
		
	 Schedule 5.5
	  	Subsidiaries
		
	 Schedule 5.7
	  	Litigation Matters
		
	 Schedule 5.11
	  	Intellectual Property Disclosures
		
	 Schedule 5.14
	  	Environmental Matters
		
	 Schedule 6.3
	  	Permitted Liens
		
	 Schedule 6.4
	  	Permitted Indebtedness and Guaranties










  
 Exhibit A to Credit and
Security Agreement 
  
 REVOLVING NOTE 
  

			
	 $6,000,000
	  	November 29, 2005

  
 For value received,
the undersigned, PROVENA FOODS, INC., a California corporation (the “Borrower”), hereby promises to pay on the Termination Date under the Credit Agreement (defined below), to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (the
“Lender”), acting through its Wells Fargo Business Credit operating division, at its office in 245 South Los Robles Avenue, Suite 700, Pasadena, California 91101, or at any other place designated at any time by the holder hereof, in lawful
money of the United States of America and in immediately available funds, the principal sum of Six Million Dollars ($6,000,000) or the aggregate unpaid principal amount of all Revolving Advances made by the Lender to the Borrower under the Credit
Agreement (defined below) together with interest on the principal amount hereunder remaining unpaid from time to time, computed on the basis of the actual number of days elapsed and a 360-day year, from the date hereof until this Note is fully paid
at the rate from time to time in effect under the Credit and Security Agreement dated the same date as this Note (the “Credit Agreement”) by and between the Lender and the Borrower. The principal hereof and interest accruing thereon shall
be due and payable as provided in the Credit Agreement. This Note may be prepaid only in accordance with the Credit Agreement. 
  
 This Note is issued pursuant, and is subject, to the Credit Agreement, which provides, among other things, for acceleration hereof. This Note is the
Revolving Note referred to in the Credit Agreement. This Note is secured, among other things, pursuant to the Credit Agreement and the Security Documents as therein defined, and may now or hereafter be secured by one or more other security
agreements, mortgages, deeds of trust, assignments or other instruments or agreements. 
  
 The Borrower shall pay all costs of collection, including reasonable attorneys’ fees and legal expenses if this Note is not paid when due, whether or not legal proceedings are commenced. 
  
 Presentment or other demand for payment, notice of dishonor and protest are
expressly waived. 
  

			
	 PROVENA FOODS, INC.

		
	 By:
	 	 
	 Name:
	 	 Thomas J. Mulroney

	 Its:
	 	 Chief Financial Officer



  

 A-1 








  
 Exhibit B to Credit and
Security Agreement 
  
 COMPLIANCE CERTIFICATE

  

			
	 To:
	  	Wells Fargo Business Credit
	 Date:
	  	November 29, 2005
	 Subject:
	  	Financial Statements

  
 In accordance with our
Credit and Security Agreement dated as of November 29 2005 (the “Credit Agreement”), attached are the financial statements of Provena Foods Inc. (the “Borrower”) as of and for November 29, 2005 (the “Reporting
Date”) and the year-to-date period then ended (the “Current Financials”). All terms used in this certificate have the meanings given in the Credit Agreement. 
  
 I certify that the Current Financials have been prepared in accordance with GAAP, subject to year-end audit adjustments, and
fairly present the Borrower’s financial condition as of the date thereof. 
  
 I further hereby certify as follows: Events of Default. (Check one): 
  

	 	 ̈	The undersigned does not have knowledge of the occurrence of a Default or Event of Default under the Credit Agreement except as previously reported in writing to the Lender.


  

	 	 ̈	The undersigned has knowledge of the occurrence of a Default or Event of Default under the Credit Agreement not previously reported in writing to the Lender and attached hereto is a
statement of the facts with respect to thereto. The Borrower acknowledges that pursuant to 2.8(d) of the Credit Agreement, the Lender may impose the Default Rate at any time during the resulting Default Period. 

  
 Material Adverse Change in Litigation Matters of the Borrower. I
further hereby certify as follows (check one): 
  

	 	 ̈	The undersigned has no knowledge of any material adverse change to the litigation exposure of the Borrower or any of its Guarantors or Affiliates. 

  

	 	 ̈	The undersigned has knowledge of material adverse changes to the litigation exposure of the Borrower or any of its Guarantors or Affiliates not previously disclosed in Schedule 5.7.
Attached to this Certificate is a statement of the facts with respect thereto. 

  
 Financial Covenants. I further hereby certify as follows (check and complete each of the following): 
  
 1. Minimum Book Net Worth. Pursuant to Section 6.2(a) of the Credit Agreement, as of the Reporting Date, the Borrower’s Book Net Worth
was $                    , which 

  

 B-1 








 
 ̈ satisfies  ̈ does not satisfy the requirement that such amount be not less than the applicable amount set forth in Section 6.2(a) of the Credit Agreement. 
  
 2. Minimum Net Income/Maximum Net Loss. Pursuant to
Section 6.2(b) of the Credit Agreement, the Borrower’s Net Income/Net Loss for the                      period ending on the
Reporting Date, was $                    , which  ̈ satisfies  ̈ does not satisfy the requirement that such amount be not less than the applicable amount set forth
in Section 6.2(b) of the Credit Agreement 
  
 3. Minimum
Debt Service Coverage Ratio. Pursuant to Section 6.2(c) of the Credit Agreement, as of the Reporting Date, the Borrower’s Debt Service Coverage Ratio was
                     to 1.00, which  ̈ satisfies  ̈ does not satisfy the requirement that such ratio be no less than the applicable ratio set forth in Section 6.2(c) of
the Credit Agreement. 
  
 4. Capital Expenditures. Pursuant
to Section 6.2(d) of the Credit Agreement, for the year-to-date period ending on the Reporting Date, the Borrower has expended or contracted to expend during the year ended
                    , 200  , for Capital Expenditures,
$                     in the aggregate, which  ̈ satisfies  ̈ does not satisfy the requirement that such expenditures not exceed
$                     in the aggregate during such year. 
  
 5. Salaries. As of the Reporting Date, the Borrower has not paid excessive or unreasonable salaries, bonuses,
commissions, consultant fees or other compensation, or increased the salary, bonus, commissions, consultant fees or other compensation of any Director, Officer or consultant, or any member of their families, by more than 10% over the amount paid in
the Borrower’s previous fiscal year, either individually or for all such persons in the aggregate, and has not paid any increase from any source other than profits earned in the year of payment, and as a consequence  ̈ is  ̈ is not in compliance with Section 6.8 of
the Credit Agreement. 
  
 Attached hereto are all relevant facts
in reasonable detail to evidence, and the computations of the financial covenants referred to above. These computations were made in accordance with GAAP. 
  

			
	PROVENA FOODS INC.
		
	 By:
	 	 
	 Its
	 	 Chief Financial Officer



  

 B-2 








  
 Exhibit C to Credit and
Security Agreement 
  
 PREMISES 
  
 The Premises referred to in the Credit and Security Agreement are legally
described as follows: 
  
 Locations where the Borrower conducts its business or
has any rights of possession: 
  
 5010 Eucalyptus Ave., Chino, CA 91710

  
 5060 Eucalyptus Ave., Chino, CA 91710 
  
 251 Darcy Parkway, Lathrop, CA 95330 
  

 C-1 








  
 Schedule 5.1 to Credit and
Security Agreement 
  
 TRADE NAMES, CHIEF EXECUTIVE
OFFICE, PRINCIPAL PLACE OF BUSINESS, 
 AND LOCATIONS OF COLLATERAL 
  
 TRADE NAMES 
  
 Swiss American Sausage Co. 
  
 Royal Angelus Macaroni Co. 
  
 Economy Services, Inc. 
  
 Sav-On Food Co., Inc. 
  
 Royal Brands, Inc. 
  
 Provena Foods Inc. 
  
 CHIEF EXECUTIVE OFFICE/PRINCIPAL PLACE OF BUSINESS 

 
 5010 Eucalyptus Ave., Chino, CA 91710 
  
 OTHER INVENTORY AND EQUIPMENT LOCATIONS 
  
 5010 Eucalyptus Ave., Chino, Ca 91710 
  
 5060 Eucalyptus Ave., Chino, CA 91710 
  
 251 Darcy Parkway, Lathrop, CA 95330 
  

 S-5.1-1 








  
 Schedule 5.2 to Credit and
Security Agreement 
  
 CAPITALIZATION AND ORGANIZATIONAL
CHART 
  

							
	 Holder

	  	Type of Rights/Stock

	  	No. of shares (after
exercise of all rights
to acquire shares)

	  	Percent interest on a
fully diluted basis


	 	  	 	  	 	  	 
	 	  	 	  	 	  	 

  
 Attach organizational chart showing the ownership structure of all Subsidiaries of the Borrower. 
  

 S-5.2-1 








  
 Schedule 5.5 to Credit and
Security Agreement 
  
 SUBSIDIARIES 

 
 None 
  

 S-5.5-1 








  
 Schedule 5.7 to Credit and
Security Agreement 
  
 LITIGATION MATTERS IN EXCESS OF
$10,000.00 
  
 None other than Workers’ Compensation
claims which are covered by insurance. 
  

 S-5.7-1 








  
 Schedule 5.11 to Credit
and Security Agreement 
  
 INTELLECTUAL PROPERTY
DISCLOSURES 
  
 None 
  

 S-5.11-1 








  
 Schedule 5.14 to Credit
and Security Agreement 
  
 ENVIRONMENTAL MATTERS

  
 None as evidenced by Phase I site assessments:

  
 251 Darcy Parkway, Lathrop, CA dated June 20, 2005

  
 5101 & 5060 Eucalyptus Ave., Chino, CA dated
July 21, 1998 
  

 S-5.14-1 








  
 Schedule 6.3 to Credit and
Security Agreement 
  
 PERMITTED LIENS

  

									
	 Creditor

	  	 Collateral

	  	Jurisdiction

	  	Filing Date

	  	Filing No.


	 GE Capital Public Finance, Inc.
	  	Pavan long good line.	  	 	  	October 31, 2003	  	 

  

 S-6.3-1 








  
 Schedule 6.4 to Credit and
Security Agreement 
  
 Permitted Indebtedness and Guaranties

  
 INDEBTEDNESS 
  

										
	 Creditor

	  	Principal
Amount

	  	Maturity Date

	  	Monthly
Payment

	  	Collateral


	 GE Capital Public Finance, Inc.
	  	$	866,750	  	November 1, 2008	  	16,221.97	  	Pavan T.H.T. “Inox” very
high temperature long-
cut pasta line.

  
 GUARANTIES

  

					
	 Primary Obligor

	  	Amount and Description
of Obligation Guaranteed

	  	Beneficiary of Guaranty


	 None
	  	 	  	 

  

 S-6.4-1