Exhibit 10.1
SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Second Amendment to Loan and Security Agreement (this "Amendment") is
entered into as of August 17, 2006, by and between COMERICA BANK ("Bank") and
XXXXX.XXX, INC. ("Xxxxx.xxx") and JADEON, INC. ("Jadeon", and together with
Xxxxx.xxx referred to herein as "Borrower") The term "Borrower" shall also
refer to Jadeon And Xxxxx.xxx individually.
RECITALS
A. Xxxxx.xxx and Bank are parties to that certain Loan and Security
Agreement dated as of February 18, 2005, as amended from time to time, including
by that certain First Amendment to Loan and Security Agreement dated as of June
16, 2005 (collectively, the "Agreement"). The parties desire to amend the
Agreement in accordance with the terms of this Amendment.
B. Jadeon is an Affiliate of Borrower and desires to become a party to the
Agreement as a "Borrower" thereunder by execution of this Amendment. Jadeon and
Xxxxx.xxx are related in a common enterprise and each expects to derive economic
benefit by being co-borrowers under the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Section 1.1 of the Agreement is hereby amended by adding or amending and
restating the following defined terms:
"'Borrowers' shall refer to Xxxxx.xxx, Inc. and Jadeon, Inc.
collectively and 'Borrower' shall refer to Xxxxx.xxx and Jadeon, Inc.
collectively and individually."
"'Borrowing Base' means an amount equal to 75% of Eligible Accounts,
as determined by Bank with reference to the most recent Borrowing Base
Certificate delivered by Borrower."
"'Eligible Accounts' means those Accounts that arise in the ordinary
course of Borrower's business that comply with all of Borrower's representations
and warranties to Bank set forth in Section 5.5; provided, that Bank may change
the standards of eligibility by giving Borrower 30 days prior written notice.
Unless otherwise agreed to by Bank, Eligible Accounts shall not include the
following:
(a) Accounts that the account debtor has failed to pay in full within
90 days of invoice date;
(b) Credit balances over 90 days;
(c) Accounts with respect to an account debtor, 25% of whose Accounts
the account debtor has failed to pay within 90 days of invoice
date;
(d) Accounts with respect to an account debtor, including
Subsidiaries and Affiliates, whose total obligations to Borrower
exceed 25% of all Accounts, to the extent such obligations exceed
the aforementioned percentage, except as approved in writing by
Bank;
(e) Accounts with respect to which the account debtor does not have
its principal place of business in the United States or Canada,
except for Eligible Foreign Accounts;
(f) Accounts with respect to which the account debtor is the United
States or any department, agency, or instrumentality of the
United States;
(g) Accounts with respect to which Borrower is liable to the account
debtor for goods sold or services rendered by the account debtor
to Borrower, but only to the extent of any amounts owing to the
account debtor against amounts owed to Borrower;
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(h) Accounts with respect to which goods are placed on consignment,
guaranteed sale, sale or return, sale on approval, xxxx and hold,
demo or promotional, or other terms by reason of which the
payment by the account debtor may be conditional;
(i) Accounts with respect to which the account debtor is an officer,
employee, agent or Affiliate of Borrower;
(j) Accounts that have not yet been billed to the account debtor or
that relate to deposits (such as good faith deposits) or other
property of the account debtor held by Borrower for the
performance of services or delivery of goods which Borrower has
not yet performed or delivered;
(k) Accounts with respect to which the account debtor disputes
liability or makes any claim with respect thereto as to which
Bank believes, in its sole discretion, that there may be a basis
for dispute (but only to the extent of the amount subject to such
dispute or claim), or is subject to any Insolvency Proceeding, or
becomes insolvent, or goes out of business;
(l) Accounts the collection of which Bank reasonably determines after
inquiry and consultation with Borrower to be doubtful; and
(m) Retentions and hold-backs."
"'Eligible Foreign Accounts' means Accounts with respect to which the
account debtor does not have its principal place of business in the United
States and that are approved by Bank on a case-by-case basis. All Eligible
Foreign Accounts must be calculated in U.S. Dollars."
"'Revolving Line' means a Credit Extension of Up to $600,000."
"'Revolving Maturity Date' means August 31, 2006."
2. Section 2.l(b)(i) is amended and restated to read in its entirety as
follows:
"(i) Amount. Subject to and upon the terms and conditions of this
Agreement (1) Borrower may request Advances in an aggregate outstanding amount
not to exceed the lesser of (A) the Revolving Line or (B) the Borrowing Base and
(2) amounts borrowed pursuant to this Section 2.1(b) may be repaid and
reborrowed at any time prior to the Revolving Maturity Date, at which time all
Advances under this Section 2.1 (b) shall be immediately due and payable.
Borrower may prepay any Advances without penalty or premium."
3. Section 2.2 of the Agreement is hereby amended and restated to read in
its entirety as follows:
"2.2 Overadvances. If the aggregate amount of the outstanding Advances
exceeds the lesser of the Revolving Line or the Borrowing Base at any time,
Borrower shall immediately pay to Bank, in cash, the amount of such excess."
4. Section 5.5 of the Agreement is hereby amended and restated to read in
its entirety as follows:
"5.5 Collateral. Borrower has rights in or the power to transfer the
Collateral, and its title to the Collateral is free and clear of Liens, adverse
claims, and restrictions on transfer or pledge except for Permitted Liens. All
Collateral is located solely in the Collateral States. The Eligible Accounts are
bona fide existing obligations. The property or services giving rise to such
Eligible Accounts has been delivered or rendered to the account debtor or its
agent for immediate shipment to and unconditional acceptance by the account
debtor. Borrower has not received notice of actual or imminent Insolvency
Proceeding of any account debtor whose accounts are included in any Borrowing
Base Certificate as an Eligible Account. All Inventory is in all material
respects of good and merchantable quality, free from all material defects,
except for Inventory for which adequate
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reserves have been made. Except as set forth in the Schedule, none of the
Collateral is maintained or invested with a Person other than Bank or Bank's
Affiliates."
5. The first paragraph of Section 6.2 of the Agreement is hereby amended
and restated to read in its entirety as follows:
"6.2 Financial Statement, Reports, Certificates. Borrower shall
deliver the following to Bank (i) as soon as available, but in any event within
thirty (30) days after the end of each calendar month, a company prepared
consolidated and consolidating balance sheet and income statement covering
Borrower's operations during such period, in a form reasonably acceptable to
Bank and certified by a Responsible Officer; (ii) as soon as available, but in
any event within thirty (30) days after the end of each calendar quarter, copies
of Guarantor's personal brokerage statements of all brokerage accounts held in
the name of Guarantor; (iii) copies of all statements, reports and notices sent
or made available generally by Borrower to its security holders or to any
holders of Subordinated Debt and within 5 days of filing with the Securities and
Exchange Commission ("SEC"), all reports on Forms 10-K and 10-Q filed with the
SEC; (iv) promptly upon receipt of notice thereof, a report of any legal actions
pending or threatened against Borrower or any Subsidiary that could result in
damages or costs to Borrower or any Subsidiary of One Hundred Thousand Dollars
($100,000) or more; (v) promptly upon receipt, each management letter prepared
by Borrower's independent certified public accounting firm regarding Borrower's
management control systems; (vi) such budgets, sales projections, operating
plans or other financial information generally prepared by Borrower in the
ordinary course of business as Bank may reasonably request from time to time;
and (vii) within thirty (30) days of the last day of each fiscal quarter, a
report signed by Borrower, in form reasonably acceptable to Bank, listing any
applications or registrations that Borrower has made or filed in respect of any
Patents, Copyrights or Trademarks and the status of any outstanding applications
or registrations, as well as any material change in Borrower's Intellectual
Property Collateral, including but not limited to any subsequent ownership right
of Borrower in or to any Trademark, Patent or Copyright not specified in
Exhibits A, B, and C of any Intellectual Property Security Agreement delivered
to Bank by Borrower in connection with this Agreement."
6. Section 6.2(a) of the Agreement is hereby amended and restated to read
in its entirety as follows:
"(a) Within thirty (30) days after the last day of each month,
Borrower shall deliver to Bank with the monthly financial statements (i) a
Compliance Certificate certified as of the last day of the applicable month and
signed by a Responsible Officer in substantially the form of Exhibit C and (ii)
a Borrowing Base Certificate signed by a Responsible Officer in substantially
the form of Exhibit D hereto, together with aged listings by invoice date of
accounts receivable and accounts payable."
7. Section 6.7 of the Agreement is hereby amended and restated to read in
its entirety as follows:
"6.7 Accounts. Each Borrower shall maintain all its depository,
operating and investment accounts with Bank or Bank's Affiliates."
8. Sections 11 and 12 of the Agreement are hereby amended and restated in
their entirety to read as follows:
"11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. This Agreement shall
be governed by, and construed in accordance with, the internal laws of the State
of California, without regard to principles of conflicts of law. Borrowers and
Bank hereby submit to the exclusive jurisdiction of the state and Federal courts
located in the County of Santa Xxxxx, State of California. THE UNDERSIGNED
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT
MAY BE WAIVED UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH
PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL
OF ITS, HIS OR HER CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT
OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION
ARISING OUT OF OR RELATED TO THIS LOAN AND SECURITY AGREEMENT OR ANY OTHER
DOCUMENT, INSTRUMENT OR AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.
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12. REFERENCE PROVISION.
12.1 In the event the Jury Trial Waiver set forth above is not
enforceable, the parties elect to proceed under this Judicial Reference
Provision.
12.2 With the exception of the items specified in clause (c),
below, any controversy, dispute or claim (each, a "Claim") between the parties
arising out of or relating to this Loan and Security Agreement or any other
document, instrument or agreement between the undersigned parties (collectively
in this Section, the "Comerica Documents"), will be resolved by a reference
proceeding in California in accordance with the provisions of Sections 638 et
seq. of the California Code of Civil Procedure ("CCP"), or their successor
sections, which shall constitute the exclusive remedy for the resolution of any
Claim, including whether the Claim is subject to the reference proceeding.
Except as otherwise provided in the Comerica Documents, venue for the reference
proceeding will be in the state or federal court in the county or district where
the real property involved in the action, if any, is located or in the state or
federal court in the county or district where venue is otherwise appropriate
under applicable law (the "Court").
12.3 The matters that shall not be subject to a reference are the
following: (i) nonjudicial foreclosure of any security interests in real or
personal property, (ii) exercise of self-help remedies (including, without
limitation, set-off), (iii) appointment of a receiver and (iv) temporary,
provisional or ancillary remedies (including, without limitation, writs of
attachment, writs of possession, temporary restraining orders or preliminary
injunctions). This reference provision does not limit the right of any party to
exercise or oppose any of the rights and remedies described in clauses (i) and
(ii) or to seek or oppose from a court of competent jurisdiction any of the
items described in clauses (iii) and (iv). The exercise of, or opposition to,
any of those items does not waive the right of any party to a reference pursuant
to this reference provision as provided herein.
12.4 The referee shall be a retired judge or justice selected by
mutual written agreement of the parties. If the parties do not agree within ten
(10) days of a written request to do so by any party, then, upon request of any
party, the referee shall be selected by the Presiding Judge of the Court (or his
or her representative). A request for appointment of a referee may be heard on
an ex parte or expedited basis, and the parties agree that irreparable harm
would result if ex parte relief is not granted. Pursuant to CCP Section 170.6,
each party shall have one peremptory challenge to the referee selected by the
Presiding Judge of the Court (or his or her representative).
12.5 The parties agree that time is of the essence in conducting
the reference proceedings. Accordingly, the referee shall be requested, subject
to change in the time periods specified herein for good cause shown, to (i) set
the matter for a status and trial-setting conference within fifteen (15) days
after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the
conference and (iii) report a statement of decision within twenty (20) days
after the matter has been submitted for decision.
12.6 The referee will have power to expand or limit the amount
and duration of discovery. The referee may set or extend discovery deadlines or
cutoffs for good cause, including a party's failure to provide requested
discovery for any reason whatsoever. Unless otherwise ordered based upon good
cause shown, no party shall be entitled to "priority" in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and
all other discovery shall be responded to within fifteen (15) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whoso decision shall be final and
binding.
12.7 Except as expressly set forth herein, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of hearings, the order of presentation of evidence, and all
other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter, except that when any
party so requests, a court reporter will be used at any hearing conducted before
the referee, and the referee will be provided a courtesy copy of the transcript.
The party making such a request shall have the obligation to arrange for and pay
the court reporter. Subject to the referee's power to award costs to the
prevailing party, the parties will equally share the cost of the referee and the
court reporter at trial.
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12.8 The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State of
California. The rules of evidence applicable to proceedings at law in the State
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, enter equitable orders
that will be binding on the parties and rule on any motion which would be
authorized in a court proceeding, including without limitation motions for
summary judgment or summary adjudication. The referee shall issue a decision at
the close of the reference proceeding which disposes of all claims of the
parties that are the subject of the reference. Pursuant to CCP Section 644, such
decision shall be entered by the Court as a judgment or an order in the same
manner as if the action had been tried by the Court and any such decision will
be final, binding and conclusive. The parties reserve the right to appeal from
the final judgment or order or from any appealable decision or order entered by
the referee. The parties reserve the right to findings of fact, conclusions of
laws, a written statement of decision, and the right to move for a new trial or
a different judgment which new trial, if granted, is also to be a reference
proceeding under this provision.
12.9 If the enabling legislation which provides for appointment
of a referee is repealed (and no successor statute is enacted), any dispute
between the parties that would otherwise be determined by reference procedure
will be resolved and determined by arbitration. The arbitration will be
conducted by a retired judge or justice, in accordance with the California
Arbitration Act Section 1280 through Section 1294.2 of The CCP as amended from
time to time. The limitations with respect to discovery set forth above shall
apply to any such arbitration proceeding.
12.10 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES,
DISPUTES AND CLAIMS RESOLVED UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A
REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO
CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND
VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS
REFERENCE PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR
AMONG THEM ARISING OUT OF OR IN ANY WAY RELATED TO, THIS LOAN AND SECURITY
AGREEMENT OR THE OTHER COMERICA DOCUMENTS."
9. A new Section 14 is added to the Agreement to read in its entirety as
follows:
"14 CO-BORROWERS.
14.1 Co-Borrowers. Borrowers are jointly and severally liable for
the Obligations and Bank may proceed against one Borrower to enforce the
Obligations without waiving its right to proceed against the other Borrower.
This Agreement and the Loan Documents are a primary and original obligation of
each Borrower and shall remain in effect notwithstanding future changes in
conditions, including any change of law or any invalidity or irregularity in the
creation or acquisition of any Obligations or in the execution or delivery of
any agreement between Bank and any Borrower. Each Borrower shall be liable for
existing and future Obligations as fully as if all of the Credit Extensions were
advanced to such Borrower. Bank may rely on any certificate or representation
made by any Borrower as made on behalf of, and binding on, all Borrowers,
including without limitation Advance Request Forms, Borrowing Base Certificates
and Compliance Certificates. Borrowers are jointly and severally liable for the
Obligations and Bank may proceed against one or more of the Borrowers to enforce
the Obligations without waiving its right to proceed against any of the other
Borrowers. Each Borrower appoints each other Borrower as its agent with all
necessary power and authority to give and receive notices, certificates or
demands for and on behalf of both Borrowers, to act as disbursing agent for
receipt of any Advances on behalf of each Borrower and to apply to Bank on
behalf of each Borrower for Advances, any waivers and any consents. This
authorization cannot be revoked, and Bank need not inquire as to one Borrower's
authority to act for or on behalf of another Borrower.
14.2 Subrogation and Similar Rights. Notwithstanding any other
provision of this Agreement or any other Loan Document, each Borrower
irrevocably waives, until all obligations are paid in full and Bank has no
further obligation to make Credit Extensions to Borrower, all rights that it may
have at law or in equity (including, Without limitation, any law subrogating the
Borrower to the rights of Bank under the Loan Documents) to seek contribution,
indemnification, or any other form of reimbursement from any other Borrower, or
any other Person now or hereafter primarily or secondarily liable for any of the
Obligations, for any payment made by the
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Borrower with respect to the Obligations in connection with the Loan Documents
or otherwise and all rights that it might have to benefit from, or to
participate in, any security for the Obligations as a result of any payment made
by the Borrower with respect to the Obligations in connection with the Loan
Documents or otherwise. Any agreement providing for indemnification,
reimbursement or any other arrangement prohibited under this Section shall be
null and void. If any payment is made to a Borrower in contravention of this
Section, such Borrower shall hold such payment in trust for Bank and such
payment shall be promptly delivered to Bank for application to the Obligations,
whether matured or unmatured.
14.3 Waivers of Notice. Each Borrower waives, to the extent
permitted by law, notice of acceptance hereof; notice of the existence, creation
or acquisition of any of the Obligations; notice of an Event of Default except
as set forth herein; notice of the amount of the Obligations outstanding at any
time; notice of any adverse change in the financial condition of any other
Borrower or of any other fact that might increase the Borrower's risk;
presentment for payment; demand; protest and notice thereof as to any
instrument; and all other notices and demands to which the Borrower would
otherwise be entitled by virtue of being a co-borrower or a surety. Each
Borrower waives any defense arising from any defense of any other Borrower, or
by reason of the cessation from any cause whatsoever of the liability of any
other Borrower. Bank's failure at any time to require strict performance by any
Borrower of any provision of the Loan Documents shall not waive, alter or
diminish any right of Bank thereafter to demand strict compliance and
performance therewith. Each Borrower also waives any defense arising from any
act or omission of Bank that changes the scope of the Borrower's risks
hereunder. Each Borrower hereby waives any right to assert against Bank any
defense (legal or equitable), setoff, counterclaim, or claims that such Borrower
individually may now or hereafter have against another Borrower or any other
Person liable to Bank with respect to the Obligations in any manner or
whatsoever.
14.4 Subrogation Defenses. Until all Obligations are paid in full
and Bank has no further obligation to make Credit Extensions to Borrower, each
Borrower hereby waives any defense based on impairment or destruction of its
subrogation or other rights against any other Borrower and waives all benefits
which might otherwise be available to it under California Civil Code Sections
2809, 2810, 2819,2839, 2845, 2848, 2849, 2850, 2899, and 3433 and California
Code of Civil Procedure Sections 580a, 580b, 580d and 726, as those statutory
provisions are now in effect and hereafter amended, and under any other similar
statutes now and hereafter in effect.
14.5 Right to Settle, Release.
(a) The liability of Borrowers hereunder shall not be
diminished by (i) any agreement, understanding or representation that any of the
Obligations is or was to be guaranteed by another Person or secured by other
property, or (ii) any release or unenforceability, whether partial or total, of
rights, if any, which Bank may now or hereafter have against any other Person,
including another Borrower, or property with respect to any of the Obligations.
(b) Without notice to any Borrower and without affecting the
liability of any Borrower hereunder, Bank may (i) compromise, settle, renew,
extend the time for payment, change the manner or terms of payment, discharge
the performance of, decline to enforce, or release all or any of the Obligations
with respect to a Borrower, (ii) grant other indulgences to a Borrower in
respect of the Obligations, (iii) modify in any manner any documents relating to
the Obligations with respect to a Borrower, (iv) release, surrender or exchange
any deposits or other property securing the Obligations, whether pledged by a
Borrower or any other Person, or (v) compromise, settle, renew, or extend the
time for payment, discharge the performance of, decline to enforce, or release
all or any obligations of any guarantor, endorser or other Person who is now or
may hereafter be liable with respect to any of the Obligations.
15.6 Subordination. All indebtedness of a Borrower now or
hereafter arising held by another Borrower is subordinated to the Obligations
and the Borrower holding the indebtedness shall take all actions reasonably
requested by Bank to effect, to enforce and to give notice of such
subordination."
10. All references in the Agreement to Bank's address at 0000 Xxxxxxxxx
Xxx., Xxxxx 0000, Xx Xxxxxxx, XX 00000, shall mean and refer to 00 X Xxxxxxx
Xxxx, Xxx Xxxx, XX 00000.
11. Exhibit A to the Agreement is hereby amended to include Exhibit A-1
attached hereto.
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12. Exhibit C to the Agreement is hereby replaced with Exhibit C attached
hereto.
13. Exhibit D is added to the Agreement in the form of Exhibit D attached
hereto.
14. For good and valuable consideration received, and intending to be
legally bound, Jadeon hereby acknowledges and agrees that, upon the execution
and delivery by Jadeon of this Amendment, it shall for all purposes be joined
to, and become, as of the date of this Amendment, a Borrower to, and shall
assume and incur the obligations of a Borrower under the Agreement and all other
Loan Documents, and do hereby grant to Bank a continuing security interest in
all presently existing and hereafter acquired or arising Collateral to secure
prompt repayment of any and all Obligations and to secure prompt performance by
each Borrower of its covenants and duties under the Loan Documents.
15. No course of dealing on the part of Bank or its officers, nor any
failure or delay in the exercise of any right by Bank, shall operate as a waiver
thereof, and any single or partial exercise of any such right shall not preclude
any later exercise of any such right. Bank's failure at any time to require
strict performance by a Borrower of any provision shall not affect any right of
Bank thereafter to demand strict compliance and performance. Any suspension or
waiver of a right must be in writing signed by an officer of Bank.
16. Unless otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as amended
hereby, shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. Except as
expressly set forth herein, the execution, delivery, and performance of this
Amendment shall not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Bank under the Agreement, as in effect prior to the date
hereof.
17. Each Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is continuing.
18. As a condition to the effectiveness of this Amendment, Bank shall have
received, in form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by each Borrower;
(b) a Certificates of the Secretary of Borrowers with
respect to incumbency and resolutions authorizing the execution and delivery of
this Amendment;
(c) an Agreement to Provide Insurance, duly executed by
Jadeon, Inc.;
(d) an Automatic Debit Authorization, duly executed by
Jadeon, Inc.;
(e) an Intellectual Property Security Agreement, duly
executed by Jadeon, Inc.;
(f) a Guaranty, duly executed by Innuity, Inc.;
(g) a Third Party Security Agreement, duly execute by
Innuity, Inc.;
(h) an Intellectual Property Security Agreement, duly
executed by Innuity, Inc.;
(i) a Warrant from Innuity, Inc.;
(j) an Affirmation and Amendment of Guaranty executed by
Xxxx Xxxx;
(k) a financing statement (Form UCC-1) naming Jadeon, Inc.
as debtor;
(l) a financing statement (Form UCC-1) naming Innuity, Inc,
as debtor;
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(m) a nonrefundable amendment fee in the amount of $2,500,
which may be debited from any of Borrower's accounts;
(n) all reasonable Bank Expenses incurred through the date
of this Amendment, Which may be debited from any of Borrower's accounts; and
(o) such other documents, and completion of such other
matters, as Bank may reasonably deem necessary or appropriate.
19. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
XXXXX.XXX, INC.
By: /s/ Xxxx Xxxx
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Title: CEO
JADEON, INC.
By: /s/ Xxxx Xxxx
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Title: Director
COMERICA BANK
By: /s/ Xxxxx X Xxxxxx
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Title: AVP
