EXHIBIT 10.10
TERM LOAN AGREEMENT
This Term Loan Agreement (the "Agreement') is made and entered into by and
between the undersigned borrower (the "Borrower") and the undersigned bank (the
"Bank") as of the date set forth on the last page of this Agreement.
ARTICLE 1. LOANS
1.1 Terms for Advance(s). [CHOOSE ONE:]
|X| SINGLE ADVANCE TERM LOAN. As of the date hereof, the
Borrower has obtained a term loan from the Bank in the
amount of, $ 640,000.00 (the "Loan Amount). The term
loan is evidenced by a single promissory note of the
Borrower to the order of the Bank in the principal
amount of the Loan Amount and dated as of the date
hereof (the "Note").
MULTIPLE ADVANCE TERM LOAN. Prior to N/A or the earlier
termination hereof, the Borrower may obtain advances
from the Bank in an aggregate amount not exceeding $
N/A (the "Loan Amount'). The term loans will be
evidenced by a single promissory note of the Borrower
to the Bank in the principal amount of the Loan Amount
and dated as of the date hereof (the "Note"). Although
the Note will be expressed as payable in the full Loan
Amount, the Borrower will be obligated to pay only the
amounts actually disbursed hereunder, together with
accrued interest on the outstanding balance at the
rates and on the dates specified therein and such other
charges provided for herein.
1.2 ADVANCES AND PAYING PROCEDURE. The Bank is authorized and
directed to credit any of the Borrower's accounts with the Bank (or to
the account the Borrower designates in writing) for all loans made
hereunder, and the Bank is authorized to debit such account or any other
account of the Borrower with the Bank for the amount of any principal or
interest due under the Note or other amount due hereunder on the due
date with respect thereto.
1.3 CLOSING FEE. The Borrower will pay the Bank a one-time closing
fee of $ N/A contemporaneously with execution of this Agreement. This
fee is in addition to all other fees, expenses and other amounts due
hereunder.
1.4. COMPENSATING BALANCES. The Borrower will maintain on deposit
with the Bank in non-interest bearing accounts average daily collected
balances, in excess of that required to support account activity and
other credit facilities extended to the Borrower by the Bank, an amount
at least equal to the sum of (i) $ N/A and (ii) N/A % of the Loan Amount
as computed on a monthly basis. If the Borrower fails to keep and
maintain such balances, it will pay a deficiency fee, payable within
five days after receipt of a statement therefore calculated on the
amount by which the Borrower's average daily balances are less than the
requirements set forth above, computed at a rate equal to the rate set
forth in the Note.
1.5 EXPENSES AND ATTORNEYS' FEES. The Borrower will reimburse the
Bank and any Participant (defined below) for all attorneys' fees and all
other costs, fees and out-of-pocket disbursements incurred by the Bank
or any Participant in connection with the preparation, execution,
delivery, administration, defense and enforcement of this Agreement or
any of the other Loan Documents (defined below), including attorneys'
fees and all other costs and fees (a) incurred before or after
commencement of litigation or at trial, on appeal or in any other
proceeding, (b) incurred in any bankruptcy proceeding and (c) related to
any waivers or amendments with respect thereto (examples of costs and
fees include but are not limited to fees and costs for: filing,
perfecting or confirming the priority of the Bank's lien, title searches
or insurance, appraisals, environmental audits and other reviews related
to the Borrower, any collateral or the loans, if requested by the Bank).
The Borrower will also reimburse the Bank and any Participant for all
costs of collection, including all attorneys' fees, before and after
judgment, and the costs of preservation and/or liquidation of any
collateral.
1.6 CONDITIONS TO BORROWING. The Bank will not be obligated to make
(or continue to make) advances hereunder unless (i) the Bank has
received executed originals of the Note and all other documents or
agreements applicable to the loans described herein, including but not
limited to the documents specified in Article III (collectively with
this Agreement the "Loan Documents'), in form and content satisfactory
to the Bank; (ii) if the loan is secured, the Bank has received
confirmation satisfactory to it that the Bank has a properly perfected
security interest, mortgage or lien, with the proper priority, (iii) the
Bank has received certified copies of the Borrower's governance
documents and certification of entity status satisfactory to the Bank
and all other relevant documents; (iv) the Bank has received a certified
copy of a resolution or authorization in form and content satisfactory
to the Bank authorizing the loan and all acts contemplated by this
Agreement and all related documents, and confirmation of proper
authorization of all guaranties and other acts of third parties
contemplated hereunder; (v) if required by the Bank, the Bank has been
provided with Opinion of the Borrower's counsel in form and content
satisfactory to the Bank confirming the matters outlined in Section 2.2
and such other matters as the Bank requests; (vi) no default exists
under this Agreement or under any other Loan Documents, or under any
other agreements by and between the Borrower and the Bank; and (vii) all
proceedings taken in connection with the transactions contemplated by
this Agreement (including any required environmental assessments),and
all instruments, authorizations and other documents applicable thereto,
are satisfactory to the Bank and its counsel.
ARTICLE II. WARRANTIES AND COVENANTS
While any part of the credit granted to the Borrower under this
Agreement or the other Loan Documents is available or any obligations
under any of the Loan Documents are unpaid or outstanding, the Borrower
continuously warrants and agrees as follows:
2.1 ACCURACY OF INFORMATION. All information, certificates or statements
given to the Bank pursuant to this Agreement and the other Loan
Documents will be true and complete when given.
2.2 ORGANIZATION AND AUTHORITY; LITIGATION. This Agreement and the other
Loan Documents are the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their
terms. The execution, delivery and performance of this Agreement and all
other Loan Documents to which the Borrower is a party (i) are within the
borrower's power; (ii) have been duly authorized by all appropriate
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entity action; (iii) do not require the approval of any governmental
agency; and (iv) will not violate any law, agreement or restriction by
which the Borrower is bound. If the Borrower is not an individual, the
Borrower is validly existing and in good standing under the laws of its
state of organization, has all requisite power and authority and
possesses all licenses necessary to conduct its business and own its
properties. There is no litigation or administrative proceeding
threatened or pending against the Borrower which would, if adversely
determined, have a material adverse effect on the Borrower's financial
condition or its property.
2.3 EXISTENCE; BUSINESS ACTIVITIES; ASSETS; CHANGE OF CONTROL. The
Borrower will (i) preserve its existence, rights and franchises; (ii)
not make any material change in the nature or manner of its business
activities; (iii) not liquidate, dissolve, merge or consolidate with or
into another entity or change its form of organization; (iv) not amend
its organizational documents in any manner that may conflict with any
term or condition of the Loan Documents; and (v) not sell, lease,
transferor otherwise dispose of all or substantially all of its assets.
Other than the transfer to a trust beneficially controlled by the
transferor, no event shall occur which causes or results in a transfer
of majority ownership of the Borrower while any Obligations are
outstanding or while the Bank has any obligation to provide funding to
the Borrower.
2.4 USE OF PROCEEDS; MARGIN STOCK; SPECULATION. Advances by the Bank
hereunder will be used exclusively by the Borrower for the purposes
represented to the Bank. The Borrower will not, without the prior
written consent of the Bank, redeem, purchase, or retire any of the
capital stock or declare or pay any dividends, or make any other
payments or distributions of a similar type or nature including
withdrawal distributions. The Borrower will not use any of the loan
proceeds to purchase or carry "margin" stock (as defined in Regulation U
of the Board of Governors of the Federal Reserve System). No part of any
of the proceeds will be used for speculative investment purposes,
including, without limitation, speculating or hedging in the commodities
and/or futures market.
2.5 ENVIRONMENTAL MATTERS. Except as disclosed in a written schedule
attached to this Agreement (if no schedule is attached, there are no
exceptions), there exists no uncorrected violation by the Borrower of
any federal, state or local laws (including statutes, regulations,
ordinances or other governmental restrictions and requirements) relating
to the discharge of air pollutants, water pollutants or process waste
water or otherwise relating to the environment or Hazardous Substances
as hereinafter defined, whether such laws currently exist or are enacted
in the future (collectively "ENVIRONMENTAL LAWS"). The term "HAZARDOUS
SUBSTANCES" will mean any hazardous or toxic wastes, chemicals or other
substances, the generation, possession or existence of which is
prohibited or governed by any Environmental Laws. The Borrower is not
subject to any judgment, decree, order or citation, or a party to (or
threatened with) any litigation or administrative proceeding, which
asserts that the Borrower (i) has violated any Environmental Laws; (ii)
is required to clean up, remove or take remedial or other action with
respect to any Hazardous Substances (collectively "REMEDIAL ACTION");or
(iii) is required to pay all or a portion of the cost of any Remedial
Action, as a potentially responsible party. Except as disclosed on the
Borrower's environmental questionnaire provided to the Bank, there are
not now, nor to the Borrower's knowledge after reasonable investigation
have there ever been, any Hazardous Substances (or tanks or other
facilities for the storage of Hazardous Substances) stored, deposited,
recycled or disposed of on, under or at any real estate owned or
occupied by the Borrower during the periods that the Borrower owned or
occupied such real estate, which if present on the real estate or in
soils or ground water, could require Remedial Action. To the Borrower's
knowledge, there are no proposed or pending changes in Environmental
Laws which would adversely affect the Borrower or its business, and
there are no conditions existing currently or likely to exist while the
Loan Documents are in effect which would subject the Borrower to
Remedial Action or other liability. The Borrower currently complies with
and will continue to timely comply with all applicable Environmental
Laws; and will provide the Bank, immediately upon receipt, copies of any
correspondence, notice, complaint, order or other document from any
source asserting or alleging any circumstance or condition which
requires or may require a financial contribution by the Borrower or
Remedial Action or other response by or on the part of the, Borrower
under Environmental Laws, or which seeks damages or civil, criminal or
punitive penalties from the Borrower for an alleged violation of
Environmental Laws.
2.6 COMPLIANCE WITH LAWS. The Borrower has complied with all laws
applicable to its business and its properties, and has all permits,
licenses and approvals required by such laws, copies of which have been
provided to the Bank.
2.7 RESTRICTION ON INDEBTEDNESS. The Borrower will not create, incur,
assume or have outstanding any indebtedness for borrowed money
(including capitalized leases) except (i) any indebtedness owing to the
Bank and its affiliates, and (ii) any other indebtedness outstanding on
the date hereof, and shown on the Borrower's financial statements
delivered to the Bank prior to the date hereof, provided that such other
indebtedness will not be increased.
2.8 RESTRICTION ON LIENS. The Borrower will not create, incur, assume or
permit to exist any mortgage, pledge, encumbrance or other lien or levy
upon or security interest in any of the Borrower's property now owned or
hereafter acquired, except (i) taxes and assessments which are either
not delinquent or which are being contested in good faith with adequate
reserves provided; (ii) easements, restrictions and minor title
irregularities which do not, as a practical matter, have an adverse
effect upon the ownership and use of the affected property; (iii) liens
in favor of the Bank and its affiliates; and (iv) other liens disclosed
in writing to the Bank prior to the date hereof.
2.9 RESTRICTION ON CONTINGENT LIABILITIES. The Borrower will not
guarantee or become a surety or otherwise contingently liable for any
obligations of others, except pursuant to the deposit and collection of
checks and similar matters in the ordinary course of business.
2.10 INSURANCE. The Borrower will maintain insurance to such extent,
covering such risks and with such insurers as is usual and customary for
businesses operating similar properties, and as is satisfactory to the
Bank, including insurance for fire and other risks insured against by
extended coverage, public liability insurance and workers' compensation
insurance; and will designate the Bank as loss payee with a "Lender's
Loss Payable" endorsement on any casualty policies and take such other
action as the Bank may reasonably request to ensure that the Bank will
receive (subject to no other interests) the insurance proceeds on the
Bank's collateral.
2.11 TAXES AND OTHER LIABILITIES. The Borrower will pay and discharge,
when due, all of its taxes, assessments and other liabilities, except
when the payment thereof is being contested in good faith by appropriate
procedures which will avoid foreclosure of liens securing such items,
and with adequate reserves provided therefor.
2.12 FINANCIAL STATEMENTS AND REPORTING. The financial statements and
other information previously provided to the Bank or provided to the
Bank in the future are or will be complete and accurate and prepared in
accordance with generally accepted accounting principles. There has been
no material adverse change in the Borrower's financial condition since
such information was provided to the Bank. The Borrower will (i)
maintain accounting records in accordance with generally recognized and
accepted principles of accounting consistently applied throughout the
accounting periods involved; (ii) provide the Bank with such information
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concerning its business affairs and financial condition (including
insurance coverage) as the Bank may request; and (iii) without request,
provide the Bank with management-prepared financial statements:
quarterly within N/A days of the end of each quarter;
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monthly within N/A days of the end of each month
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and annual
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within days of the end of each fiscal year.
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2.13 INSPECTION OF PROPERTIES AND RECORDS; FISCAL YEAR. The Borrower
will permit representatives of the Bank to visit and inspect any of the
properties and examine any of the books and records of the Borrower at
any reasonable time and as often as the Bank may reasonably desire. The
Borrower will not change its fiscal year.
2.14 FINANCIAL STATUS. The Borrower will maintain at all times:
(i) Net Working Capital in the amount of at least (v) Capital Expenditures not to exceed $ N/A per
$ N/A . fiscal year.
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(ii) Tangible Net Worth in the amount of at least (vi) Cash Flow Coverage Ratio of at least $ N/A .
$ N/A
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(vii) Officers, Directors, Partners, Members, and
Management Salaries and Other Compensation not
to exN/Ad $
(iii) Debt to Worth Ratio of not more than
$ N/A
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(iv) Current Ratio of at least N/A .
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The terms used in this Section 2.14 will have the meanings set forth in a
supplement entitled "Financial Definitions," a copy of which the Borrower
hereby acknowledges having received with this Agreement and which is
incorporated herein by reference.
ARTICLE III. COLLATERAL AND GUARANTIES
3.1 COLLATERAL. This Agreement and the Note are secured by any and all
security interests, pledges, mortgages/deeds of trust or liens now or
hereafter in existence granted to the Bank to secure indebtedness of
the Borrower to the Bank, including without limitation as described in
the following documents:
[] Real Estate Mortgage(s)/Deed(s) of Trust dated
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[] covering real estate located at
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[] Security Agreement(s) dated
[] Collateral Pledge Agreement(s) dated
[] Other
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3.2 GUARANTIES. This Agreement and the Note are guarantied by each and
every guaranty now or hereafter in existence guarantying the
indebtedness of the Borrower to the Bank (except for any guaranty
expressly limited by its terms to a specific separate obligation of
Borrower to the Bank) including, without limitation, the following:
NUTECH DIGITAL INC.
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3.3 CREDIT BALANCES; SETOFF. As additional security for the payment of
the obligations described in the Loan Documents and any other
obligations of the Borrower to the Bank of any nature whatsoever
(collectively the "Obligations)', the Borrower hereby grants to the
Bank a security interest in, a lien on and an express contractual right
to set off against all depository account balances, cash and any other
property of the Borrower now or hereafter in the possession of the Bank
and the right to refuse to allow withdrawals from any account
(collectively "Setoff J. The Bank may, at any time upon the occurrence
of a default hereunder (notwithstanding any notice requirements or
grace/cure periods under this or other agreements between the Borrower
and the Bank) Setoff against the Obligations whether or not the
Obligations (including future installments) are then due or have been
accelerated, all without any advance or contemporaneous notice or
demand of any kind to the Borrower, such notice and demand being
expressly waived.
The information in this Article III is for information only and the
omission of any reference to an agreement will not affect the validity
or enforceability thereof. The rights and remedies of the Bank outlined
in this Agreement and the documents identified above are intended to be
cumulative.
ARTICLE IV. DEFAULTS
4.1 DEFAULTS. Notwithstanding any cure periods described below, the
Borrower will immediately notify the Bank in writing when the Borrower
obtains knowledge of the occurrence of any default specified below.
Regardless of whether the Borrower has given the required notice, the
occurrence of one or more of the following will constitute a default:
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(a) NONPAYMENT. The Borrower shall fail to pay (i) any interest due on
the Note or any fees, charges, costs or expenses under the Loan
Documents by 5 days after the same becomes due; or (ii) any
principal amount of the Note when due.
(b) NONPERFORMANCE. The Borrower or any guarantor of Borrower's
Obligations to the Bank ("Guarantor")shall fail to perform or
observe any agreement, term, provision, condition, or covenant
(other than a default occurring under (a), (c), (d), (e), (f) or
(g) of this Section 4.1) required to be performed or observed by
the Borrower or any Guarantor hereunder or under any other Loan
Document or other agreement with or in favor of the Bank.
(c) MISREPRESENTATION. Any financial information, statement,
certificate, representation or warranty given to the Bank by the
Borrower or any Guarantor (or any of their representatives) in
connection with entering into this Agreement or the other Loan
Documents and/or any borrowing there under, or required to be
furnished under the terms thereof, shall prove untrue or misleading
in any material respect (as determined by the Bank in the exercise
of its judgment) as of the time when given.
(d) DEFAULT ON OTHER OBLIGATIONS. The Borrower or any Guarantor shall
be in default under the terms of any loan agreement, promissory
note, lease, conditional sale contract or other agreement, document
or instrument evidencing, governing or securing any indebtedness
owing by the Borrower or any Guarantor to the Bank or any
indebtedness in excess of $10,000 owing by the Borrower to any
third party, and the period of grace, if any, to cure said default
shall have passed.
(e) JUDGMENTS. Any judgment shall be obtained against the Borrower or
any Guarantor which, together with all other outstanding
unsatisfied judgments against the Borrower (or such Guarantor),
shall exceed the sum of $10,000 and shall remain unvacated,
unbonded or unstayed for a period of 30 days following the date of
entry thereof.
(f) INABILITY TO PERFORM; BANKRUPTCY/INSOLVENCY. (i) The Borrower or
any Guarantor shall die or cease to exist; or (ii) any Guarantor
shall attempt to revoke any guaranty of the Obligations described
herein, or any guaranty becomes unenforceable in whole or in part
for any reason; or (iii) any bankruptcy, insolvency or receivership
proceedings, or an assignment for the benefit of creditors, shall
be commenced under any Federal or state law by or against the
Borrower or any Guarantor; or (iv) the Borrower or any Guarantor
shall become the subject of any out-of-court settlement with its
creditors; or (v) the Borrower or any Guarantor is unable or admits
in writing its inability to pay its debts as they mature; or (vi)
if the Borrower is a limited liability company, any member thereof
shall withdraw or otherwise become disassociated from the Borrower.
(g) ADVERSE CHANGE; INSECURITY. (i) There is a material adverse change
in the business, properties, financial condition or affairs of the
Borrower or any Guarantor, or in any collateral securing the
Obligations; or (ii) the Bank in good xxxxx xxxxx itself insecure.
4.2 Termination of Loans; Additional Bank Rights. Upon the occurrence
of any of the events identified in Section 4.1, the Bank may at any
time (notwithstanding any notice requirements or grace/cure periods
under this or other agreements between the Borrower and the Bank) (i)
immediately terminate its obligation, if any, to make additional loans
to the Borrower; (ii) Setoff; and/or (iii) take such other steps to
protect or preserve the Bank's interest in any collateral, including
without limitation, notifying account debtors to make payments directly
to the Bank, advancing funds to protect any collateral and insuring
collateral at the Borrower's expense; all without demand or notice of
any kind, all of which are hereby waived.
4.3 Acceleration of Obligations. Upon the occurrence of any of the
events identified in Sections 4.1 (a) through 4.1 (e) and 4.1(g), and
the passage of any applicable cure periods, the Bank may at any time
thereafter, by written notice to the Borrower, declare the unpaid,
principal balance of any Obligations, together with the interest
accrued thereon and other amounts accrued hereunder and under the other
Loan Documents, to be immediately due and payable; and the unpaid
balance will thereupon be due and payable, all without presentation,
demand, protest or further notice of any kind, all of which are hereby
waived, and notwithstanding anything to the contrary contained herein
or in any of the other Loan Documents. Upon the occurrence of any event
under Section 4.1(f), the unpaid principal balance of any Obligations,
together with all interest accrued thereon and other amounts accrued
hereunder and under the other Loan Documents, will thereupon be
immediately due and payable, all without presentation, demand, protest
or notice of any kind, all of which are hereby waived, and
notwithstanding anything to the contrary contained herein or in any of
the other Loan Documents. NOTHING CONTAINED IN SECTION 4.1, SECTION 4.2
OR THIS SECTION WILL LIMIT THE BANK'S RIGHT TO SETOFF AS PROVIDED IN
SECTION 3.3 OR OTHERWISE IN THIS AGREEMENT.
4.4 OTHER REMEDIES. Nothing in this Article IV is intended to restrict
the Bank's rights under any of the Loan Documents or at law, and the
Bank may exercise all such rights and remedies as and when they are
available.
ARTICLE V. OTHER TERMS
5.1 FINANCIAL DEFINITIONS SUPPLEMENT. If covenants regarding financial
status apply to this loan, the "Financial Definitions" Supplement
identified in Section 2.14 of this Agreement is hereby incorporated
into this Agreement. The Borrower acknowledges receiving a copy of such
Supplement. 5.2 ADDITIONAL TERMS; ADDENDUM/SUPPLEMENTS. The warranties,
covenants, conditions and other terms described in this Section and/or
in the Addendum and/or other attached document(s) referenced in this
Section are incorporated into this Agreement:
SEE ATTACHED ADDENDUM
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ARTICLE VI. MISCELLANEOUS
6.1 DELAY; CUMULATIVE REMEDIES. No delay on the part of the Bank in
exercising any right, power or privilege hereunder or under any of the
other Loan Documents will operate as a waiver thereof, nor will any
single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein specified are
cumulative and are not exclusive of any rights or remedies which the
Bank would otherwise have.
6.2 RELATIONSHIP TO OTHER DOCUMENTS. The warranties, covenants and
other obligations of the Borrower (and the rights and remedies of the
Bank) that are outlined in this Agreement and the other Loan Documents
are intended to supplement each other. In the event of any
inconsistencies in any of the terms in the Loan Documents, all terms
will be cumulative so as to give the Bank the most favorable rights set
forth in the conflicting documents, except that if there is a direct
conflict between any preprinted terms and specifically negotiated terms
(whether included in an addendum or otherwise), the specifically
negotiated terms will control.
6.3 PARTICIPATIONS; GUARANTORS. The Bank may, at its option, sell all
or any interests in the Note and other Loan Documents to other
financial institutions (the "Participant)', and in connection with such
sales (and thereafter) disclose any financial information the Bank may
have concerning the Borrower to any such Participantor potential
Participant. From time to time, the Bank may, in its discretion and
without obligation to the Borrower, any Guarantor or any other third
party, disclose information about the Borrower and this loan to any
Guarantor, surety or other accommodation party. This provision does not
obligate the Bank to supply any information or release the Borrower
from its obligation to provide such information, and the Borrower
agrees to keep all Guarantors advised of its financial condition and
other matters which may be relevant to the Guarantors' obligations to
the Bank.
6.4 SUCCESSORS. The rights, options, powers and remedies granted in
this Agreement and the other Loan. Documents will extend to the Bank
and to its successors and assigns, will be binding upon the Borrower
and its successors and assigns and will be applicable hereto and to all
renewals and/or extensions hereof.
6.5 INDEMNIFICATION. Except for harm arising from the Bank's willful
misconduct, the Borrower hereby indemnifies and agrees to defend and
hold the Bank harmless from any and all losses, costs, damages, claims
and expenses of any kind suffered by or asserted against the Bank
relating to claims by third parties arising out of the financing
provided under the Loan Documents or related to any collateral
(including, without limitation, the Borrower's failure to perform its
obligations relating to Environmental Matters described in Section 2.5
above). This indemnification and hold harmless provision will survive
the termination of the. Loan Documents and the satisfaction of the
Obligations due the Bank.
6.6 NOTICE OF CLAIMS AGAINST BANK; LIMITATION OF CERTAIN DAMAGES. In
order to allow the Bank to mitigate any damages to the Borrower from
the Bank's alleged breach of its duties under the Loan Documents or any
other duty, if any, to the Borrower, the Borrower agrees to give the
Bank immediate written notice of any claim or defense it has against
the Bank, whether in tort or contract, relating to any action or
inaction by the Bank under the Loan Documents, or the transactions
related thereto, or of any defense to payment of the Obligations for
any reason. The requirement of providing timely notice to the Bank
represents the parties' agreed-to standard of performance regarding
claims against the Bank. Notwithstanding any claim that the Borrower
may have against the Bank, and regardless of any notice the Borrower
may have given the Bank, the Bank will not be liable to the Borrower
for consequential and/or SPECIAL DAMAGES ARISING THERE FROM, EXCEPT
THOSE DAMAGES ARISING FROM THE BANK'S WILLFUL MISCONDUCT.
6.7 NOTICES. Notice of any record shall be deemed delivered when the
record has been (a) deposited in the United States Mail, postage
pre-paid, (b) received by overnight delivery service, (c) received by
telex, (d) received by telecopy, (e) received through the internet, or
(f) when personally delivered.
6.8 PAYMENTS. Payments due under the Note and other Loan Documents will
be made in lawful money of the United States. All payments may be
applied by the Bank to principal, interest and other amounts due under
the Loan Documents in any order which the Bank elects.
6.9 APPLICABLE LAW AND JURISDICTION; INTERPRETATION; JOINT LIABILITY;
SEVERABILITY This Agreement and all other Loan Documents will be
governed by and interpreted in accordance with the internal laws of the
State of CALIFORNIA , except to the extent superseded by Federal law.
Invalidity of any provisions of this Agreement will not affect any
other provision. THE BORROWER HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT SITUATED IN THE COUNTY OR
FEDERAL JURISDICTION OF THE BANK'S BRANCH WHERE THE LOAN WAS
ORIGINATED, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO
THIS AGREEMENT, THE NOTE, THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR
ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATIONOF ANY OF THE FOREGOING. Nothing herein will affect the
Bank's rights to serve process in any manner permitted by law, or limit
the Bank's right to bring proceedings against the Borrower in the
competent courts of any other jurisdiction or jurisdictions. This
Agreement, the other Loan Documents and any amendments hereto
(regardless of when executed) will be deemed effective and accepted
only at the Bank's offices, and only upon the Bank's receipt of the
executed originals thereof. If there is more than one Borrower, the
liability of the Borrowers will be joint and several, and the reference
to "Borrower" will be deemed to refer to all Borrowers. Invalidity of
any provision of this Agreement shall not affect the validity of any
other provision.
6.10 COPIES; ENTIRE AGREEMENT; MODIFICATION. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all other Loan
Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE
READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING, EXPRESSING
CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE. NO OTHER TERMS
OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE
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LEGALLYENFORCED. THE TERMS OF THIS AGREEMENT MAY ONLY BE CHANGED BY
ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH
RESPECT TO ALL OTHER CREDIT AGREEMENTSNOW IN EFFECT BETWEEN
BORROWERANDTHEBANK. AMODIFICATION OF ANY OTHER CREDIT AGREEMENTS NOW IN
EFFECT BETWEEN BORROWERAND THE BANK, WHICH OCCURS AFTER RECEIPT BY
BORROWER OF THIS NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN
INSTRUMENT. ORAL OR IMPLIED MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE
NOT ENFORCEABLE AND SHOULD NOT BE RELIED UPON. 6.11 WAIVER OF JURY
TRIAL. THE BORROWER AND THE BANK HEREBY JOINTLY AND SEVERALLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO
ANY OF THE LOAN DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY COLLATERAL
SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR
CONNECTED THERETO. THE BORROWER AND THE BANK EACH REPRESENTS TO THE
OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
6.12 ATTACHMENTS. All documents attached hereto, including any
appendices, schedules, riders, and exhibits to this Agreement, are
hereby expressly incorporated by reference.
IN WITNESS WHEREOF, the undersigned have executed this TERM LOAN
AGREEMENT as of NOVEMBER 7, 2002 .
(Individual Borrower)
__________________________N/A_________________________
Borrower Name (Organization)
a
-----------------------------------------------------
Borrower Name XXX XXXXXX By____________________________________________________
-----------------------------------------------------
__________________________________________________ Name and Title N/A
----------------------------------------
Borrower Name _____________________________________ Name and Title N/A
---------------------------------------
U.S. BANK N.A.
---------------------------------
By_______________________________
Name and Title XXX XXXXXXXX, VICE PRESIDENT
--------------------------------
Borrower Address 0000 XXXXXXXXXXX XXXXX, XXXXXX, XX 00000
-----------------------------------------------------
Borrower Telephone No.:
----------------------------------------------------------------------
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