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Exhibit 10.1
BUSINESS LOAN AGREEMENT
This Business Loan Agreement (this "Agreement") is entered into by and
between Comerica Bank-California ("Bank") and Interpore International, Inc., a
Delaware Corporation ("Borrower") as of this 14/th/ day of June, 2002, at
Bank's headquarters office at 000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx
00000.
1. Loans To Borrower. Bank and Borrower agree that any loans which Bank in
its sole discretion has made or may now or hereafter make to Borrower (sometimes
hereinafter collectively referred to as the "Loan") shall be subject to the
terms and conditions of this Agreement unless otherwise agreed to in writing by
Bank and Borrower. In the event there are contradictions between the provisions
of this Agreement and any other written agreement with the Bank, this Agreement
shall prevail. Loan shall be subject to the terms and conditions of this
Agreement, promissory note(s) executed in connection herewith and/or previously
or subsequently executed, and all amendments, renewals and extensions thereof
(singularly or collectively, the "Note"), and all those certain security
agreements and/or such other security or other documents as Bank has required or
may now or hereafter require in connection with the Loan (collectively, the
"Loan Documents").
2. Legal Effect. This Agreement supplements the terms and conditions of the
Loan Documents. Except as otherwise specified herein, all terms used in this
Agreement shall have the same meaning as given in the Note and/or Loan Documents
which are incorporated herein by this reference. Any and all terms used in this
Agreement, the Note and/or the Loan Documents shall be construed and defined in
accordance with the meaning and definition of such term under and pursuant to
the California Uniform Commercial Code, as amended. Except as specifically
modified hereby, all of the terms and conditions of the Note and/or the Loan
Documents shall remain in full force and effect.
3. Interest Rate; Payment Terms; Loan Fees. The principal and interest on
the Loan shall be payable on the terms set forth in the Note and/or the Loan
Documents. If applicable, a loan fee in the sum of Twenty Five Thousand Dollars
($25,000.00) shall be paid concurrently with the execution of this Agreement and
each anniversary of thereafter.
4. Security. As security for Borrower's obligations to Bank under this
Agreement, the Note and/or the Loan Documents and all other indebtedness and
liabilities whatsoever of Borrower to Bank, whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising,
evidenced by the Note and/or the Loan Documents (collectively, the
"Indebtedness"), Borrower hereby grants to Bank, prior to or simultaneously with
the borrowing hereunder, a continuing security interest of first priority,
subject only to Permitted Liens, in all accounts receivable, inventory,
equipment and intangibles (including but not limited to intellectual property)
and all proceeds thereof, and in all collateral provided to Bank pursuant to
any security agreement and/or all collateral that is delivered to Bank and/or
which Bank possesses and all proceeds thereof, (collectively, the "Collateral").
5. Representations and Warranties of Borrower. Borrower represents and
warrants to Bank that as of the date of acceptance of this Agreement, the Note
and/or the Loan Documents, as of the date of borrowing hereunder and at all
times the Loan or any other Indebtedness are outstanding hereunder:
(a) Borrower is duly organized, validly existing and in good standing
under the laws of the State of Delaware;
(b) Borrower has the legal power and authority to own its properties and
assets and to carry out its business as now being conducted; it is qualified to
do business in every jurisdiction except where the failure to be so qualified
would not reasonably be expected to have a Material Adverse Effect; it has the
legal power and authority to execute and perform this Agreement, the Note and/or
the Loan Documents, to borrow money in accordance with its terms, to execute and
deliver this Agreement, the Note and the Loan Documents, and to do any and all
other things required of it hereunder; and this Agreement, the Note and all the
Loan Documents, when executed on behalf of Borrower by its duly authorized
officers shall be its valid and binding obligations legally enforceable in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency, and similar laws and equitable principles affecting the
enforcement of creditors' rights generally;
(c) The execution, delivery and performance of this Agreement, the Note
and/or the Loan Documents and the borrowings hereunder and thereunder (i) have
been duly authorized by all requisite corporate, partnership or company action;
(ii) do not require governmental approval; (iii) will not result (with or
without notice and/or the passage of time) in any conflict with or breach or
violation of or default under, any provision of law, the articles of
incorporation, articles of organization, operating agreement, bylaws or
partnership agreement of Borrower, any provision of any indenture, agreement or
other instrument to which Borrower is a party, or by which it or any of its
properties or assets are bound; and (iv) will not result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon any
of the properties or assets of Borrower except in favor of Bank;
(d) The consolidated balance sheet of Borrower and its subsidiaries as
provided to Bank in connection herewith as of March 31, 2002, and the related
consolidated statement of income of Borrower and its subsidiaries provided to
Bank for the three (3) month period ended March 31, 2002, fairly present the
financial condition of Borrower and its subsidiaries in accordance with
generally accepted accounting principles ("GAAP") consistently applied; and from
the date thereof to the date hereof, there has been no material adverse change
in such condition or operations; and
(e) There is not pending nor, to the best of Borrower's knowledge,
threatened, any litigation, proceeding or governmental investigation which could
materially and adversely affect its business or its ability to perform its
obligations, pay the Indebtedness and/or comply with the covenants set forth
herein and/or in the Note and/or the other Loan Documents.
6. Affirmative Covenants. Until the Indebtedness is paid in full, Borrower
covenants and agrees to do the following:
(a) Furnish to Bank within forty five (45) days after the end of each
quarter, an unaudited balance sheet and statement of income covering Borrower's
operations. Within ninety (90) days of the end of each of Borrower's fiscal
years, furnish to Bank statements of the financial condition of Borrower for
each such fiscal year, including but not limited to, a balance sheet, profit and
loss statement, and statement of cash flow. Said annual statements shall be
audited by an independent certified public accountant selected by Borrower and
reasonably acceptable to Bank;
(b) [Intentionally Omitted];
(c) Promptly inform Bank of the occurrence of any default or event of
default as defined in the Note and/or the Loan Documents (hereinafter referred
to as "Default") or of any event which could have a materially adverse effect
upon Borrower's business, properties, financial condition or ability to comply
with its obligations hereunder, including without limitation its ability to pay
the Indebtedness;
(d) Furnish such other information as Bank may reasonably request;
(e) Keep in full force and effect its own corporate existence in good
standing; continue to conduct and operate its business substantially as
presently conducted and operated and maintain and protect all franchises except
in each case as otherwise permitted with Bank's prior written approval which
shall not be unreasonably withheld or delayed; and preserve all the remainder of
its property used or useful in the conduct of its business and keep the same in
good repair and condition, normal wear and tear excepted;
(f) Comply with the financial covenants set forth in Addendum A,
attached hereto and made a part hereof;
(g) Maintain a standard and modern system of accounting in accordance
with GAAP consistently applied with ledger and account cards and/or computer
tapes and computer disks, computer printouts and computer records pertaining to
the Collateral which contain information as may from time to time be requested
by Bank, not modify or change its method of accounting without the written
consent of Bank first obtained, permit Bank and any of its employees, officers,
or agents, upon demand, during Borrower's usual business hours, or the usual
business hours of any third person having control thereof (upon three (3)
business days' notice unless an Event of Default has occurred and is continuing,
in which event no notice shall be required), to have access to and examine all
of Borrower's records relating to the Collateral, Borrower's financial condition
and the results of Borrower's operations and in connection therewith, permit
Bank or any of its agents, employees, or officer to copy and make extracts
therefrom;
(h) [Intentionally Omitted];
(i) Maintain Borrower's same place of business or chief executive office
as indicated below, and not relocate said address without giving Bank 30 days'
prior written notice;
(j) Maintain insurance with such insurers in such amounts and of a
type reasonably satisfactory to Bank, with Bank to be designated as the payee of
any such insurance policies under a payee/secured lender clause reasonably
acceptable to Bank; Bank hereby acknowledges that the amount and type of
Borrower's insurance policies as in effect on the date hereof, and Borrower's
present insurers, are all satisfactory to Bank; and
(k) On a continuing basis from the date of this Agreement until the
Indebtedness is paid in full and Borrower has performed all of its other
obligations hereunder, Borrower represents and agrees that:
(1) There are not and will not be Hazardous Materials (as later
defined) on, in or under any real or personal property ("Property") now or at
any time owned, occupied or operated by Borrower which in any manner violate any
Environmental Law (as later defined), except for such Hazardous Materials used
in the ordinary course of business in compliance with all applicable laws, rules
and regulations.
(2) Borrower shall promptly conduct all investigations, testing
and other actions necessary to clean up and remove all Hazardous Materials on or
affecting the Property in accordance with every Environmental Law, except for
such Hazardous Materials used in the ordinary course of business in compliance
with all applicable laws, rules and regulations.
(3) Borrower shall defend, indemnify and hold harmless Bank, its
employees, agents, officers, shareholders and directors from and against any and
all claims, damages, fines, expenses, liabilities or causes of action of
whatever kind, including without limit consultant fees, legal expenses and
reasonable attorneys' fees, suffered by any of them as a direct or indirect
result of any actual or asserted violation of any Environmental Law, except as
may be caused solely by Bank's gross negligence or willful misconduct.
(4) Upon ten days notice to Borrower (except in an emergency),
Bank may (but is not obligated to) enter on the Property or take such other
actions as it reasonably deems appropriate to inspect, test for, clean up,
remove or minimize the impact of any Hazardous Materials upon Bank's receipt of
any notice from any source asserting the existence of any Hazardous Materials in
violation of any Environmental Law. All costs and expenses so incurred by Bank,
including without limit consultant fees, legal expenses and reasonable
attorneys' fees, shall be payable by Borrower upon demand.
(5) The provisions of this section shall survive the repayment of
the Indebtedness, the satisfaction of all other obligations of Borrower to Bank,
the discharge or termination by Bank of any lien or security interest from
Borrower, and the foreclosure of or exercise of rights as to any collateral
given to Bank.
(6) "Hazardous Materials" mean all of the following: any asbestos,
petroleum, petroleum by-products, flammable explosives, or radioactive materials
or any hazardous or toxic materials as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Sections 9601 et seq.) or in any other Environmental Law.
(7) "Environmental Law" means any federal, state, local or other
law, ordinance, statute, directive, rule, order or regulation the purpose of
which is to regulate or improve the environment or employee health and safety.
7. Negative Covenants. Borrower shall not do any of the following:
(a) Grant a security interest in or permit a lien, claim or encumbrance
upon any of the Collateral to any person, association, firm, corporation,
entity, governmental agency or instrumentality, other than Permitted Liens;
(b) Permit any levy, attachment or restraint to be made affecting any of
Borrower's assets valued in the aggregate in excess of $500,000;
(c) Permit any judicial officer or assignee to be appointed or to take
possession of any of Borrower's assets valued in the aggregate in excess of
$500,000;
(d) Without Bank's prior written consent which shall not be unreasonably
withheld or delayed, change its business structure, corporate identity or
structure;
(e) Move or relocate any collateral except in the ordinary course of
Borrower's business or as otherwise permitted hereunder;
(f) Enter into any material transaction not in the usual course of
Borrower's business;
(g) Make any change in Borrower's financial structure or in any of its
business objects, purposes or operations which would have a Material Adverse
Effect;
(h) Incur any debt outside the ordinary course of Borrower's business;
(i) Make loans, advances or extensions of credit to any person, except
for (i) sales on open account and otherwise in the ordinary course of business,
and (ii) loans and advances to employees of Borrower in the ordinary course of
business not to exceed $500,000 in the aggregate outstanding at any time;
(j) Guaranty or otherwise, directly or indirectly, in any way be or
become responsible for obligations of any other person, whether by agreement to
purchase the indebtedness of any other person, agreement for the furnishing of
funds to any other person through the furnishing of goods, supplies or services,
by way of stock purchase, capital contribution, advance or loan, for the purpose
of paying and discharging (or causing the payment or discharge of) the
indebtedness of any other person, or otherwise, except for (i) the endorsement
of negotiable instruments by Borrower in the ordinary course of business for
deposit or collection, and (ii) guarantees of the trade or contractual
obligations of Borrower's subsidiaries in the ordinary course of business;
(k) Sell, lease, move, transfer or otherwise dispose of properties and
assets having an aggregate book value of more than Three Million Dollars
($3,000,000.00) (whether in one transaction or in a series of transactions)
except as to the sale of the inventory in the ordinary
course of business; change its name, liquidate, or consolidate with or merge
into any corporation; or without Bank's prior written consent which shall not be
unreasonably withheld or delayed, permit another corporation to merge into it,
acquire all or substantially all of the properties or assets of any other
person, enter into any reorganization or recapitalization or reclassify its
capital stock, or enter into any sale-lease back transaction;
(l) Purchase or hold beneficially any stock or other securities of, or
make any investment or acquire any interest whatsoever in, any other person,
except for (i) the common stock of the subsidiaries owned by Borrower on the
date of this Agreement or other applicable date and (ii) Permitted Investments;
(m) Allow any fact, condition or event to occur or exist with respect
to any employee, pension or profit sharing plan established or maintained by it
which would reasonably be expected to constitute grounds for termination of any
such plan or for the court appointment of a trustee to administer any such plan;
or
(n) Without Bank's prior written consent, acquire or expend for or
commit itself to acquire or expend for fixed assets by lease, purchase or
otherwise in an aggregate amount that exceeds Five Million Dollars
($5,000,000.00) in any fiscal year.
8. Default. The terms "Default" or "Event of Default", as used herein,
shall have the meaning given in the Note and/or the Loan Documents. In addition,
the parties agree that any one or more of the following events shall constitute
a default by Borrower under this Agreement, the Note and/or the Loan Documents:
(a) If Borrower fails or neglects to perform, keep or observe any
term, provision, condition, covenant, agreement, warranty or representation
contained in this Agreement, the Note, the Loan Documents or any other present
or future agreement between Borrower and Bank (other than those covenants and
agreements described in Sections 8(c) and 8(d) hereof), and such failure
continues for fifteen (15) days after the earlier to occur of (i) Borrower
obtaining knowledge of such failure or (ii) Bank's dispatch of notice to
Borrower of such failure;
(b) If any material representation, statement, report or certificate
made or delivered by Borrower, or any of its officers, employees or agents to
Bank is not true and correct in all material respects;
(c) If Borrower fails to pay when due and payable, or declared due and
payable, any principal payment due on the Indebtedness, or if Borrower fails to
pay on or before the third (3rd) calendar day following when due and payable, or
declared due and payable, any other payment due on the Indebtedness (whether for
interest, fees, taxes, reimbursement of Bank expenses, or otherwise);
(d) If Borrower fails or neglects to perform, keep or observe any
term, provision, condition, covenant, agreement, warranty or representation
contained in Section 6(a), 6(f), or 6(i), or Section 7, of this Agreement;
(e) If any Material Adverse Effect shall occur or exist;
(f) If there is any loss, theft, damage or destruction to or of any
assets of Borrower valued in the aggregate in excess of $1,000,000 over
applicable insurance coverage, or if any of Borrower's assets valued in the
aggregate in excess of $1,000,000 over applicable insurance coverage, are
affected, become subject to a writ or distress warrant, or are levied upon, or
come into the possession of any judicial officer or assignee and the same are
not released, discharged or bonded against within thirty (30) days thereafter;
(g) If any insolvency, bankruptcy or other proceeding is filed or
commenced by Borrower or any Guarantor under any state or federal bankruptcy or
insolvency laws seeking its reorganization, dissolution or liquidation or
seeking the appointment of a receiver, trustee, court appointee, sequestrator or
otherwise, for all or any part of the property of Borrower or any Guarantor; or
the sale or other disposition by Borrower or any Guarantor in one or a series of
transaction of all of its assets or property; or the voluntary suspension of the
transaction of business by Borrower or any Guarantor; or the occurrence of
dissolution, termination of existence, merger, consolidation, business failure,
or assignment for the benefit of creditors of or by Borrower or any Guarantor;
(h) If any insolvency, bankruptcy or other proceeding is filed or
commenced against Borrower or any Guarantor under any state or federal
bankruptcy or insolvency laws seeking its reorganization, dissolution or
liquidation or seeking the appointment of a receiver, trustee, court appointee,
sequestrator or otherwise, for all or any part of the property of Borrower or
any Guarantor, without being dismissed within forty-five (45) days of its
commencement;
(i) If Borrower is enjoined, restrained or in any way prevented by
court order from continuing to conduct all or any material part of its business
affairs;
(j) If a notice of lien (other than a Permitted Lien), levy or
assessment is filed of record with respect to any of Borrower's assets valued in
the aggregate in excess of $1,000,000 by the United States Government, or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other government agency, or if any taxes or debts owing at any time
hereafter to any one or more of such entities becomes a lien, whether inchoate
or otherwise, upon any of Borrower's assets valued in the aggregate in excess of
$1,000,000 and the same is not paid on the payment date thereof;
(k) If a judgment or other claim becomes a lien or encumbrance upon
any or all of Borrower's assets and the same is not satisfied, dismissed or
bonded against within thirty (30) days thereafter;
(l) If Borrower's records (other than payroll) are prepared and kept
by an outside computer service bureau at the time this Agreement, the Note
and/or the Loan Documents are entered into or during the term of this Agreement,
the Note and/or the Loan Documents, such an agreement with an outside service
bureau is entered into, and at any time thereafter, without first obtaining the
written consent of Bank, Borrower terminates, modifies, amends or changes its
contractual relationship with said computer service bureau or said computer
service bureau fails to provide Bank with any requested information or financial
data pertaining to Bank's Collateral, Borrower's financial condition or the
results of Borrower's operations;
(m) If Borrower is in a default under any material agreement or
agreements to which Borrower is a party with third parties (other than Bank)
involving indebtedness to such third party or parties, in the aggregate in
excess of $500,000, whether under any indenture, agreement or otherwise;
(n) If Borrower makes any payment on account of indebtedness which has
been subordinated to Borrower's obligations to Bank, including without
limitation the Indebtedness, unless such payment is permitted to be made
pursuant to the terms and conditions of the applicable subordination agreement;
(o) If any material misrepresentation exists now or thereafter in any
warranty or representation made to Bank by any officer or director of Borrower,
or if any such warranty or representation is withdrawn by any officer or
director;
(p) If any Guarantor of Borrower's obligations terminates or attempts
to terminate its guaranty, becomes insolvent or an insolvency proceeding is
commenced by or against any such Guarantor; or
(q) If any reportable event, which the Bank determines constitutes
grounds for the termination of any deferred compensation plan (other than
Borrower's 401K plan) by the Pension Benefit Guaranty Corporation or for the
appointment by the appropriate United States District Court of a trustee to
administer any such plan, shall have occurred and be continuing thirty (30) days
after written notice of such determination shall have been given to Borrower by
Bank, or any such plan shall be terminated within the meaning of Title IV of the
Employment Retirement Income Security Act ("ERISA"), or a trustee shall be
appointed by the appropriate United States District Court to administer any such
plan, or the Pension Benefit Guaranty Corporation shall institute proceedings to
terminate any plan and in case of any event described in this Section 8, the
aggregate amount of the Borrower's liability to the Pension Benefit Guaranty
Corporation under Sections 4062, 4063 or 4064 of ERISA shall exceed five percent
(5%) of Borrower's Tangible Effective Net Worth.
Bank shall not be obligated to make advances to Borrower during any
cure period provided for in Sections 8(f), 8(h), 8(k) and 8(q) above.
9. Rights and Remedies. The parties have agreed as follows with respect
to Bank's rights and remedies upon Default:
(a) Bank shall have all rights and remedies available hereunder and
under the Note and the Loan Documents and under applicable law;
(b) Bank may at its option without notice, accelerate the Indebtedness
and declare all Indebtedness to be due, owing and payable in full;
(c) Bank may at its option without notice, cease advancing money or
extending credit to or for the benefit of Borrower under this Agreement or any
other agreement between Borrower and Bank.
(d) No Default (as defined in this Agreement, the Note and/or the Loan
Documents) shall be waived by Bank except in writing and a waiver of any Default
shall not be a waiver of any other default or of the same default on a future
occasion;
(e) No single or partial exercise of any right, power or privilege
hereunder, or any delay in the exercise hereof, shall preclude other or further
exercise of the rights of the parties under this Agreement, the Note and/or the
Loan Documents; and
(f) No forbearance on the part of Bank in enforcing any of its rights
under this Agreement, the Note and/or the Loan Documents nor any renewal,
extension or rearrangement of any payment or covenant to be made or performed by
Borrower hereunder shall constitute a waiver of any of the terms of this
Agreement, the Note, and/or the Loan Documents, or of any such right.
10. Cross-Default. A Default under this Agreement shall also be a Default
under the Note and the Loan Documents, and vice versa. A Default under this
Agreement, the Note and/or the Loan Documents shall also be a Default under
every other note and other agreement between Bank and Borrower, and vice versa.
11. Cross-Collateral. Any Collateral for this Agreement, the Note and/or
the Loan Documents shall also be Collateral for any other obligations owing by
Borrower to Bank. Notwithstanding the above, if the undersigned has given or
gives Bank a deed of trust or mortgage covering real property, that deed of
trust or mortgage shall not secure this Note or any other indebtedness of the
undersigned, unless expressly provided to the contrary in another place.
12. Survival of Covenants, Agreements, Representations and Warranties. All
covenants, agreements, representations and warranties (a) previously made
(except as specifically subsequently modified); (b) made in connection herewith
or with the Note and/or the Loan Documents and/or any document contemplated
hereby; or (c) executed hereafter (unless such document expressly states that
this Agreement does not apply thereto) shall survive the borrowing hereunder and
thereunder and the repayment in full of the Note and/or the Loan Documents and
any amendments, renewals or extensions thereof and shall be deemed to have been
relied upon by Bank. All statements contained in any certificate or other
document delivered to Bank at any time by or on behalf of Borrower shall
constitute representations and warranties by Borrower.
13. Miscellaneous. The parties agree to the following miscellaneous terms:
(a) This Agreement, the Note and the Loan Documents shall be governed
by California law, without regard for the effect of conflict of laws;
(b) Borrower agrees that it will pay all out of pocket costs of Bank
and expenses (including, without limitation, Bank's reasonable attorneys' fees
and costs and/or fees, transfer charges and costs of Bank's in-house counsel) in
connection with the preparation of this Agreement, the Note and/or the Loan
Documents and/or the documents contemplated hereby and the closing of the Loan;
(c) This Agreement, the Note and/or the Loan Documents shall inure to
the benefit of and shall be binding upon the parties hereto and their respective
successors and assigns; provided, however, that Borrower shall not assign or
transfer its right or obligations under this Agreement, the Note and/or the Loan
Documents without the prior written consent of Bank;
(d) Borrower acknowledges that Bank may provide information regarding
Borrower and the Loan to Bank's parent, subsidiaries and affiliates and service
providers, subject to the terms of the Confidentiality Agreement; and
(e) This Agreement is an integrated agreement and supersedes all prior
negotiations and agreements regarding the subject matter hereof. Any amendments
hereto shall be in writing and be signed by all parties hereto.
(f) Certain initially capitalized terms used in this Agreement have
the meanings ascribed thereto in Addendum A to this Agreement.
14. JURY WAIVER. THE BORROWER AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES
ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE
OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE INDEBTEDNESS.
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IN WITNESS WHEREOF, the parties have executed this Business Loan Agreement
as of the date first set forth above.
Address of Borrower: Borrower:
000 Xxxxxxxxxx Xxxxx Interpore International, Inc.
Xxxxxx, XX 00000
By:_______________________________
Name:_____________________________
Title:____________________________
By:_______________________________
Name:_____________________________
Title:____________________________
Comerica Bank-California
("Bank")
By:_______________________________
Xxx XxXxxxxx
Title: Vice President
ADDENDUM A TO BUSINESS LOAN AGREEMENT
1. Definitions.
Cash Flow as used in this Agreement means for any applicable period of
determination, the net income (as later defined) (after deduction for income
taxes and other taxes of Borrower or its subsidiaries, determined by reference
to income or profits of Borrower or its subsidiaries) for such period, plus, to
the extent deducted in computation of such net income, the amount of
depreciation and amortization expense and the amount of deferred tax liability
during such period, all as determined in accordance with GAAP.
Cash Flow Coverage Ratio means the ratio, as of any applicable period of
determination, the numerator of which is net income plus depreciation plus
amortization plus (or minus) the increase (or decrease) in the deferred tax
liability minus dividends and S-Draws, if an S-Corp, at the greater of actual
draws or net income times the highest prevailing personal tax rate, and the
denominator of which is the current portion of long term debt plus the current
portion of capital lease payments for the same period of determination.
Confidentiality Agreement means that certain letter agreement, dated
April 23, 2002, between Bank and Borrower, regarding Bank's agreement to keep
certain of Borrower's information confidential.
Current Assets as used in this Agreement means, as of any applicable
date of determination, all unrestricted cash, CD's or marketable securities,
non-affiliated accounts receivable, United States Government securities and/or
claims against the United States Government, and inventories (held for sale in
the ordinary course of business) of Borrower and its subsidiaries.
Current Liabilities as used in this Agreement means, as of any
applicable date of determination, (i) all liabilities of Borrower or its
subsidiaries that should be classified as current in accordance with GAAP,
including, without limitation, the outstanding principal of the Indebtedness
under this Agreement, the Note and/or the Loan Documents, plus (ii) to the
extent not otherwise included, all liabilities of Borrower to any of its
affiliates (including officers, directors, shareholders, subsidiaries and
commonly held companies), whether or not classified as current in accordance
with GAAP unless same shall be the long term portion of Subordinated Debt (as
defined below).
Current Ratio as used in this Agreement means, as of an applicable date
of determination, Current Assets divided by Current Liabilities.
Debt shall mean, as of any applicable date of determination, all items
of indebtedness, obligation or liability of a person, whether matured or
unmatured, liquidated or unliquidated, direct or indirect, absolute or
contingent, joint or several, that should be classified as liabilities in
accordance with GAAP excepting such liabilities as shall be Subordinated Debt
(as defined below).
Fixed Charges as used in this Agreement means, as of any applicable
period of determination, with respect to Borrower and its subsidiaries, the sum,
without duplication, of
(a) all interest paid or payable during such period by Borrower or its
subsidiaries on debt of such person; plus (b) all payments of principal or other
sums paid or payable during such period by such person with respect to Debt
having a final maturity more than one year from the date of creation of such
Debt; plus (c) all debt discount and expense amortized or required to be
amortized during such period by such person; plus (d) the maximum amount of all
rents and other payments paid or required to be paid by such person during such
period under any lease or other contract or arrangement providing for use of
real or personal property in respect of which such person is obligated as a
lessee, user or obligor; plus (e) all dividends and other distributions paid or
payable by Borrower (including S-Draws, if applicable, as per the Cash Flow
Coverage Ratio above) or its subsidiaries or otherwise accumulating during such
period on any capital stock of Borrower or its subsidiaries; plus (f) all loans
or other advances made by Borrower or its subsidiaries during such period to any
affiliate of such person.
Guarantor means every person or entity who or which now or hereafter
executes a guaranty in favor of Bank with respect to the Indebtedness.
Material Adverse Effect means a material adverse effect on (i) the
business, assets, condition (financial or otherwise), results of operations, or
prospects of Borrower and its subsidiaries taken as a whole, or any Guarantor;
(ii) the ability of Borrower to perform its obligations under this Agreement and
the Loan Documents to which it is a party (including, without limitation,
repayment of the Obligations as they come due), or the ability of any Guarantor
to perform its obligations under the Loan Documents to which it is a party,
(iii) the validity or enforceability of this Agreement, the Loan Documents, or
the rights or remedies of Bank hereunder and thereunder, (iv) the value of the
assets assigned or pledged to Bank as collateral, or (v) the priority of Bank's
liens with respect to the assets assigned or pledged thereto as collateral.
Net Income shall mean the net income (or loss) of a person for any
period determined in accordance with GAAP but, however, excluding: (a) any gains
or losses on the sale or other disposition, not in the ordinary course of
business, of investments or fixed or capital assets, and any taxes on the
excluded gains and any tax deductions or credits on account on any excluded
losses; and (b) in the case of the Borrower, net earnings of any person in which
Borrower has an ownership interest, unless such net earnings shall have actually
been received by Borrower in the form of cash distributions.
Permitted Indebtedness means (i) Indebtedness owing to Bank in
accordance with the terms of this Agreement and the Loan Documents, and (ii)
other indebtedness of Borrower up to a maximum aggregate amount of One Million
Dollars ($1,000,000) outstanding at any one time incurred in the ordinary course
of business and secured by the Liens described in clause (iv) of the definition
of Permitted Liens hereinbelow.
Permitted Investments means any of the investments listed and
described on Addendum B attached hereto.
Permitted Liens means (i) Liens for current taxes, assessments or
other governmental charges which are not delinquent or remain payable without
any penalty, or are being contested in good faith by appropriate proceedings,
provided that, if delinquent, adequate reserves have been set aside with respect
thereto as required by GAAP and, by reason of nonpayment, no property is subject
to a material risk of loss or forfeiture; (ii) Liens in favor of Bank, in
accordance with the Loan Documents, (iii) statutory liens, such as inchoate
mechanics', inchoate materialmen's, landlord's, warehousemen's, and carriers'
liens, and other similar liens, other than those described in clause (i) above,
arising in the ordinary course of business with respect to obligations which are
not delinquent or are being contested in good faith by appropriate proceedings,
provided that, if delinquent, adequate reserves have been set aside with respect
thereto as required by GAAP and, by reason of nonpayment, no property is subject
to a material risk of loss or forfeiture; (iv) liens relating to indebtedness
owing under capital lease and purchase money obligations permitted hereunder (v)
judgment liens that do not constitute an Event of Default, and (vi) liens, if
they constitute such, of any true lease and consignment UCC filings permitted
hereunder.
Quick Assets as used in this Agreement means, as of any applicable
date of determination, unrestricted cash, CD's or marketable securities and net
accounts receivable arising from the sale of goods and services, and United
States Government securities and/or claims against the United States Government
of Borrower and its subsidiaries.
Quick Ratio as used in this Agreement means, as of an applicable date
of determination, Quick Assets divided by Current Liabilities, excluding
subordinated debt.
Tangible Effective Net Worth as used in this Agreement means Tangible
Net Worth as of any applicable date of determination, increased by the long term
portion of Subordinated Debt (as defined below), if any, of Borrower or its
subsidiaries and decreased by the following: Subscription lists, organization
expenses, trade accounts receivable converted to notes, and money due to
Borrower or its subsidiaries from affiliates (including officers, directors,
subsidiaries and commonly held companies).
Tangible Net Worth as used in this Agreement means, as of any
applicable date of determination, the excess of:
(a) the net book value of all assets of Borrower and its subsidiaries
(other than patents, patent rights, trademarks, trade names, franchises,
copyrights, licenses, goodwill, and similar intangible assets) after all
appropriate deductions in accordance with GAAP (including, without limitation,
reserves for doubtful receivables, obsolescence, depreciation and amortization),
minus
(b) all Total Liabilities of Borrower and its subsidiaries.
Total Liabilities as used in this Agreement means, as of any
applicable date, the total of all items of indebtedness, obligation or liability
which, in accordance with GAAP consistently applied, would be included in
determining the total liabilities of Borrower or its subsidiaries, including,
without limitation, (a) all obligations secured by any mortgage, pledge,
security interest or other lien on property owned or acquired, whether or not
the obligations
secured thereby shall have been assumed; (b) all obligations which are
capitalized lease obligations; and (c) all guaranties, endorsements or other
contingent or surety obligations with respect to the indebtedness of others,
whether or not reflected on the balance sheets of Borrower or its subsidiaries,
including, without limitation, any obligation to furnish funds, directly or
indirectly through the purchase of goods, supplies, services, or by way of stock
purchase, capital contribution, advance or loan or any obligation to enter into
a contract for any of the foregoing.
Total Liabilities to Tangible Effective Net Worth Ratio means, as of
any applicable date, Total Liabilities divided by Tangible Effective Net Worth.
Subordinated Debt as used in this Agreement means indebtedness of
Borrower to third parties which has been subordinated to all Indebtedness owing
by Borrower to Bank pursuant to a subordination agreement in form and content
satisfactory to Bank.
Working Capital as used in this Agreement means, as of any applicable
date of determination, Current Assets less Current Liabilities.
2. Financial Covenants. Borrower shall maintain the following financial
ratios and covenants on a consolidated basis, which shall be monitored on a
quarterly basis, except as noted below.
(a) A ratio of Quick Assets to Current Liabilities of not less than
1.50:1.00;
(b) A ratio of Total Liabilities (less Subordinated Debt as defined
herein) to Tangible Effective Net Worth of less than 0.70:1.00; and
(c) Net Income on a quarterly basis of $1.00;
All financial covenants shall be computed in accordance with GAAP
consistently applied except as otherwise specifically set forth in this
Agreement. All monies due from affiliates (including officers, directors and
shareholders) shall be excluded from Borrower's assets for all purposes
hereunder.
[LOGO]
MASTER REVOLVING NOTE
Variable Rate-Maturity Date-Obligatory Advances
(Business and Commercial Loans Only)
--------------------------------------------------------------------------------
Amount Note Date Maturity Date Tax Identification #
$10,000,000 June 14, 2002 June 14, 2005 00-0000000
--------------------------------------------------------------------------------
On the Maturity Date, as stated above, for value received, the undersigned
promise(s) to pay to the order of Comerica Bank-California ("Bank"), at any
office of the Bank in the State of California, Ten Million and no/100 Dollars
(U.S.) (or that portion of it advanced by the Bank and not repaid as later
provided) with interest until maturity, whether by acceleration or otherwise, or
an Event of Default, as later defined, at a per annum rate equal to the Bank's
base rate from time to time in effect minus 0.75% per annum and after that at a
rate equal to the rate of interest otherwise prevailing under this Note plus 3%
per annum (but in no event in excess of the maximum rate permitted by law). The
Bank's "base rate" is that annual rate of interest so designated by the Bank and
which is changed by the Bank from time to time. Interest rate changes will be
effective for interest computation purposes as and when the Bank's base rate
changes. Interest shall be calculated on the basis of a 360-day year for the
actual number of days the principal is outstanding. Accrued interest on this
Note shall be payable on the first day of each month commencing July 1, 2002,
until the Maturity Date when all amounts outstanding under this Note shall be
due and payable in full. If the frequency of interest payments is not otherwise
specified, accrued interest on this Note shall be payable monthly on the first
day of each month. If any payment of principal or interest under this Note shall
be payable on a day other than a day on which the Bank is open for business,
this payment shall be extended to the next succeeding business day and interest
shall be payable at the rate specified in this Note during this extension. A
late payment charge equal to 5% of each late payment may be charged on any
payment not received by the Bank within 10 calendar days after the payment due
date, but acceptance of payment of this charge shall not waive any Default under
this Note.
The principal amount payable under this Note shall be the sum of all advances
made by the Bank to or at the request of the undersigned, less principal
payments actually received in cash by the Bank. The books and records of the
Bank shall be the best evidence of the principal amount and the unpaid interest
amount owing at any time under this Note and shall be conclusive absent manifest
error. No interest shall accrue under this Note until the date of the first
advance made by the Bank; after that interest on all advances shall accrue and
be computed on the principal balance outstanding from time to time under this
Note until the same is paid in full.
This Note and any other indebtedness and liabilities of any kind of the
undersigned to the Bank, and any and all modifications, renewals or extensions
of it, whether joint or several, contingent or absolute, now existing or later
arising, and however evidenced (collectively "Indebtedness") are secured by and
the Bank is granted a security interest in all items deposited in any account of
any of the undersigned with the Bank and by all proceeds of these items (cash or
otherwise), all account balances of any of the undersigned from time to time
with the Bank, by all property of any of the undersigned from time to time in
the possession of the Bank and by any other
collateral, rights and properties described in each and every deed of trust,
mortgage, security agreement, pledge, assignment and other security or
collateral agreement which has been, or will at any time(s) later be, executed
by any (or all) of the undersigned to or for the benefit of the Bank
(collectively "Collateral"). Notwithstanding the above, if the undersigned has
given or gives Bank a deed of trust or mortgage covering real property, that
deed of trust or mortgage shall not secure this Note or any other indebtedness
of the undersigned, unless expressly provided to the contrary in another place.
Upon the occurrence and during the continuance of an Event of Default (as
defined in that certain Business Loan Agreement, dated as of even date herewith,
between the undersigned and the Bank (the "Loan Agreement:"), the Bank may at
its option and without prior notice to the undersigned, declare any or all of
the Indebtedness to be immediately due and payable (notwithstanding any
provisions contained in the evidence of it to the contrary), cease advancing
money or extending credit to or for the benefit of the undersigned under this
Note or any other agreement between the undersigned and Bank, terminate this
Note as to any future liability or obligation of Bank, but without affecting
Bank's rights and security interests in any Collateral and the Indebtedness of
the undersigned to Bank, sell or liquidate all or any portion of the Collateral,
set off against the Indebtedness any amounts owing by the Bank to the
undersigned (or any of them), charge interest at the default rate provided in
the document evidencing the relevant Indebtedness and exercise any one or more
of the rights and remedies granted to the Bank by any agreement with the
undersigned or given to it under applicable law. In addition, if this Note is
secured by a deed of trust or mortgage covering real property, then the trustor
or mortgagor shall not mortgage or pledge the mortgaged premises as security for
any other indebtedness or obligations. This Note, together with all other
indebtedness secured by said deed of trust or mortgage, shall become due and
payable immediately, without notice, at the option of the Bank, (a) if said
trustor or mortgagor shall mortgage or pledge the mortgaged premises for any
other indebtedness or obligations or shall convey, assign or transfer the
mortgaged premises by deed, installment sale contract instrument, or (b) if the
title to the mortgaged premises shall become vested in any other person or party
in any manner whatsoever, or (c) if there is any disposition (through one or
more transactions) of legal or beneficial title to a controlling interest of
said trustor or mortgagor. All payments under this Note shall be in immediately
available United States funds, without setoff or counterclaim .
This Note shall bind the undersigned and the undersigned's successors and
assigns.
The undersigned waives presentment, demand, protest, notice of dishonor, notice
of demand or intent to demand, notice of acceleration or intent to accelerate,
and all other notices, and agrees that no extension or indulgence to the
undersigned or release, substitution or nonenforcement of any security, or
release or substitution of any of the undersigned, any guarantor or any other
party, whether with or without notice, shall affect the obligations of any of
the undersigned. The undersigned waives all defenses or right to discharge
available under Section 3605 of the California Uniform Commercial Code and
waives all other suretyship defenses or right to discharge. The undersigned
agrees that the Bank has the right to sell, assign, or grant participations, or
any interest, in any or all of the Indebtedness, and that, in connection with
this right, but without limiting its ability to make other disclosures to the
full extent allowable, the Bank may disclose all documents and information which
the Bank now or later has relating to the undersigned or the Indebtedness. The
undersigned agrees that the Bank may provide
information relating to the Note or to the undersigned to the Bank's parent,
affiliates, subsidiaries and service providers, subject to the terms of the
Confidentiality Agreement (as defined in the Loan Agreement).
The undersigned agrees to reimburse the holder or owner of this Note for any and
all costs and expenses (including without limit, court costs, legal expenses and
reasonable attorney fees, whether inside or outside counsel is used, whether or
not suit is instituted and, if suit is instituted, whether at the trial court
level, appellate level, in a bankruptcy, probate or administrative proceeding or
otherwise) incurred in collecting or attempting to collect this Note or incurred
in any other matter or proceeding relating to this Note.
The undersigned acknowledges and agrees that there are no contrary agreements,
oral or written, establishing a term of this Note and agrees that the terms and
conditions of this Note may not be amended, waived or modified except in a
writing signed by an officer of the Bank expressly stating that the writing
constitutes an amendment, waiver or modification of the terms of this Note. As
used in this Note, the word "undersigned" means, individually and collectively,
each maker, accommodation party, indorser and other party signing this Note in a
similar capacity. If any provision of this Note is unenforceable in whole or
part for any reason, the remaining provisions shall continue to be effective.
THIS NOTE IS MADE IN THE STATE OF CALIFORNIA AND SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED, EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY
IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS.
See Libor Addendum for rate option.
See Loan Agreement and any modifications,
replacements, or substitutions therefore.
INITIAL HERE ______
Interpore International, Inc.
By:___________________________________________its_____________________________
SIGNATURE OF TITLE:
By:___________________________________________its_____________________________
SIGNATURE OF TITLE:
000 Xxxxxxxxxx Xxxxx Xxxxxx XX XXX 00000
-----------------------------------------------------------------------------
Street Address City State Country Zip Code
For Bank Use Only CCAR#
------------------------------------------------------------------------------------------------------
Loan Officer Initials Loan Group name Obligor(s) Name
------------------------------------------------------------------------------------------------------
Loan Officer I.D. No. Loan Group No. Obligor # Note # Amount
------------------------------------------------------------------------------------------------------
LIBOR
Addendum To Master Revolving Note
This Addendum to Master Revolving Note (this "Addendum") is entered into as
of this 14th day of June, 2002, by and between Comerica Bank-California ("Bank")
and Interpore International, Inc. ("Borrower"). This Addendum supplements the
terms of the Master Revolving Note of even date herewith.
15. Definitions.
(a) Advance. As used herein, "Advance" means a borrowing requested by
Borrower and made by Bank under the Note, including a LIBOR Option Advance
and/or a Base Rate Option Advance.
(b) Business Day. As used herein, "Business Day" means any day except a
Saturday, Sunday or any other day designated as a holiday under Federal or
California statute or regulation.
(c) LIBOR. As used herein, "LIBOR" means the rate per annum (rounded upward
if necessary, to the nearest whole 1/8 of 1%) and determined pursuant to the
following formula:
LIBOR= Base LIBOR
100% - LIBOR Reserve Percentage
(1) "Base LIBOR" means the rate per annum determined by Bank at which
deposits for the relevant LIBOR Period would be offered to Bank in
the approximate amount of the relevant LIBOR Option Advance in the
inter-bank LIBOR market selected by Bank, upon request of Bank at
10:00 a.m. California time, on the day that is the first day of
such LIBOR Period.
(2) "LIBOR Reserve Percentage" means the reserve percentage rescribed
by the Board of Governors of the Federal Reserve System (or any
successor) for "Eurocurrency Liabilities" (as defined in Regulation
D of the Federal Reserve Board, as amended), adjusted by Bank for
expected changes in such reserve percentage during the applicable
LIBOR Period.
(d) LIBOR Business Day. As used herein, "LIBOR Business Day" means a
Business day on which dealings in Dollar deposits may be carried out in the
interbank LIBOR market.
(e) LIBOR Period. As used herein, "LIBOR Period" means, with respect to a
LIBOR Option Advance:
(1) initially, the period commencing on, as the case may be, the date
the Advance is made or the date on which the Advance is converted
to a LIBOR Option Advance, and continuing for, in every case, a
thirty (30), sixty (60) or ninety (90) day period, thereafter so
long as the LIBOR Option is quoted for such period in the
applicable interbank LIBOR market, as such period is selected by
Borrower in the notice of Advance as
provided in the Note or in the notice of conversion as
provided in this Addendum; and
(2) thereafter, each period commencing on the last day of the
next preceding LIBOR Period applicable to such LIBOR Option
Advance and continuing for, in every case, on a thirty (30),
sixty (60) or ninety (90) day period, thereafter so long as
the LIBOR Option is quoted for such period in the applicable
interbank LIBOR market, as such period is selected by
Borrower in the notice of continuation as provided in this
Addendum.
(f) Note. As used herein, "Note" means the Master Revolving Note of even
date herewith.
(g) Regulation D. As used herein, "Regulation D" means Regulation D of
the Board of Governors of the Federal Reserve System as amended or supplemented
from time to time.
(h) Regulatory Development. As used herein, "Regulatory Development"
means any or all of the following: (i) any change in any law, regulation or
interpretation thereof by any public authority (whether or not having the force
of law); (ii) the application of any existing law, regulation or the
interpretation thereof by any public authority (whether or not having the force
of law); and (iii) compliance by Bank with any request or directive (whether or
not having the force of law) of any public authority.
16. Interest Rate Options. Borrower shall have the following options regarding
the interest rate to be paid by Borrower on Advances under the Note:
(a) A rate equal to one and three quarter percent (1.75%) above Bank's
LIBOR, (the "LIBOR Option"), which LIBOR Option shall be in effect
during the relevant LIBOR Period; or
(b) A rate equal to three quarters of one percent (0.75%) below the
"Base Rate" as referenced in the Note and quoted from time to time
by Bank as such rate may change from time to time (the "Base Rate
Option").
17. LIBOR Option Advance. The minimum LIBOR Option Advance will not be less
than Five Hundred Thousand and 00/100 Dollars ($500,000.00) for any LIBOR Option
Advance.
18. Payment of Interest on LIBOR Option Advances. Interest on each LIBOR
Option Advance shall be payable pursuant to the terms of the Note. Interest on
such LIBOR Option Advance shall be computed on the basis of a 360-day year and
shall be assessed for the actual number of days elapsed from the first day of
the LIBOR Period applicable thereto but not including the last day thereof.
19. Bank's Records Re: LIBOR Option Advances. With respect to each LIBOR
Option Advance, Bank is hereby authorized to note the date, principal amount,
interest rate and LIBOR Period applicable thereto and any payments made thereon
on Bank's books and records (either manually or by electronic entry) and/or on
any schedule attached to the Note, which notations shall be prima facie evidence
of the accuracy of the information noted.
20. Selection/Conversion of Interest Rate Options. At the time any Advance is
requested under the Note and/or Borrower wishes to select the LIBOR Option for
all or a portion of the outstanding principal balance of the Note, and at the
end of each LIBOR Period, Borrower shall give Bank notice specifying (a) the
interest rate option selected by Borrower; (b) the principal amount subject
thereto; and (c) if the LIBOR Option is selected, the length of the applicable
LIBOR Period. Any such notice may be given by telephone so long as, with respect
to each LIBOR Option selected by Borrower, (i) Bank receives written
confirmation from Borrower not later than three (3) LIBOR Business Days after
such telephone notice is given; and (ii) such notice is given to Bank prior to
10:00 a.m., California time, on the first day of the LIBOR Period. For each
LIBOR Option requested hereunder, Bank will quote the applicable fixed LIBOR
Rate to Borrower at approximately 10:00 a.m., California time, on the first day
of the LIBOR Period. If Borrower does not immediately accept the rate quoted by
Bank, any subsequent acceptance by Borrower shall be subject to a
redetermination of the rate by Bank; provided, however, that if Borrower fails
to accept any such quotation given, then the quoted rate shall expire and Bank
shall have no obligation to permit a LIBOR Option to be selected on such day. If
no specific designation of interest is made at the time any Advance is requested
under the Note or at the end of any LIBOR Period, Borrower shall be deemed to
have selected the Base Rate Option for such Advance or the principal amount to
which such LIBOR Period applied. At any time the LIBOR Option is in effect,
Borrower may, at the end of the applicable LIBOR Period, convert to the Base
Rate Option. At any time the Base Rate Option is in effect, Borrower may convert
to the LIBOR OPTION, and shall designate a LIBOR Period.
21. Default Interest Rate. From and after the maturity date of the Note, or
such earlier date as all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of the Note shall
bear interest until paid in full at an increased rate per annum (computed on the
basis of a 360-day year, actual days elapsed) equal to three percent (3.00%)
above the rate of interest from time to time applicable to the Note.
22. Prepayment. Bank is not under any obligation to accept any prepayment of
any LIBOR Option Advance except as described below or as required under
applicable law. Borrower may prepay a Base Rate Option Advance at any time,
without paying any Prepayment Amount, as defined below. Borrower may prepay an
LIBOR Option Advance in increments of Five Hundred Dollars ($500.00) prior to
the end of the LIBOR Period, as long as (i) Bank is provided written notice of
such prepayment at least five (5) LIBOR Business Days prior to the date thereof
(the "Prepayment Date"); and (ii) Borrower pays the Prepayment Amount. The
notice of prepayment shall contain the following information: (a) the Prepayment
Date; and (b) the LIBOR Option Advance which will be prepaid. On the Prepayment
Date, Borrower shall pay to Bank, in addition to any other amount that may then
be due on the Note, the Prepayment Amount. Bank, in its sole discretion, may
accept any prepayment of a LIBOR Option Advance even if not required to do so
under the Note and may deduct from the amount to be applied against the LIBOR
Option Advance any other amounts required to be paid as part of the Prepayment
Amount.
The Prepaid Principal Amount (as defined below) will be applied to the
LIBOR Option Advance being prepaid as Bank shall determine in its sole
discretion.
If Bank exercises its right to accelerate the payment of the Note prior to
maturity based upon an Event of Default under the Note, Borrower shall pay to
Bank, in addition to any other amounts that may then be due on the Note, on the
date specified by Bank as the Prepayment Date, the Prepayment Amount.
Bank's determination of the Prepayment Amount shall be conclusive in the
absence of obvious error or fraud. If requested in writing by Borrower, Bank
shall provide Borrower a written statement specifying the Prepayment Amount.
The following (the "Prepayment Amount") shall be due and payable in full
on the Prepayment Date:
(a) If the principal amount of the LIBOR Option Advance being prepaid
exceeds Seven Hundred Fifty Thousand Dollars ($750,000), then the Prepayment
Amount is the sum of: (i) the amount of the principal balance of the LIBOR
Option Advance which Borrower has elected to prepay or the amount of the
principal balance of the LIBOR Option Advance which Bank has required Borrower
to prepay because of acceleration, as the case may be (the "Prepaid Principal
Amount"); (ii) interest accruing on the Prepaid Principal Amount up to, but not
including, the Prepayment Date; (iii) Five Hundred Dollars ($500.00); plus (iv)
the present value, discounted at the Reinvestment Rates (as defined below) of
the positive amount by which (A) the interest Bank would have earned had the
Prepaid Principal Amount not been paid prior to the end of the LIBOR Period at
the Note's interest rate exceeds (B) the interest Bank would earn by reinvesting
the Prepaid Principal Amount at the Reinvestment Rates.
(b) If the principal amount of the LIBOR Option Advance being prepaid is
Seven Hundred Fifty Thousand Dollars ($750,000) or less, then the Prepayment
Amount is the sum of: (i) the principal amount of the LIBOR Option Advance which
Borrower has elected to prepay or the principal amount of the LIBOR Option
Advance which Bank has required Borrower to prepay because of acceleration due
to an Event of Default under the Note, as the case may be (the "Prepaid
Principal Amount"); (ii) interest accruing on the Prepaid Principal Amount up
to, but not including, the Prepayment Date; plus (iii) an amount equal to two
percent (2%) of the Prepaid Principal Amount.
"Reinvestment Rates" mean the per annum rates of interest equal to one
half percent (1/2%) above the rates of interest reasonably determined by Bank to
be in effect not more than seven (7) days prior to the Prepayment Date in the
secondary market for United States Treasury Obligations in amount(s) and with
maturity(ies) which correspond (as closely as possible) to the LIBOR Option
Advance being prepaid.
BY INITIALING BELOW, BORROWER ACKNOWLEDGE(S) AND AGREE(S) THAT: (A) THERE
IS NO RIGHT TO PREPAY ANY LIBOR OPTION ADVANCE, IN WHOLE OR IN PART, WITHOUT
PAYING THE PREPAYMENT AMOUNT, EXCEPT AS OTHERWISE REQUIRED UNDER APPLICABLE LAW;
(B) BORROWER SHALL BE LIABLE FOR PAYMENT OF THE PREPAYMENT AMOUNT IF BANK
EXERCISES ITS RIGHT TO ACCELERATE PAYMENT OF ANY LIBOR OPTION ADVANCE AS PART OR
ALL OF THE OBLIGATIONS OWING UNDER THE NOTE, INCLUDING WITHOUT LIMITATION,
ACCELERATION UNDER A DUE-ON-SALE PROVISION; (C) BORROWER
WAIVES ANY RIGHTS UNDER SECTION 2954.10 OF THE CALIFORNIA CIVIL CODE, OR ANY
SUCCESSOR STATUTE; AND (D) BANK HAS MADE EACH LIBOR OPTION ADVANCE PURSUANT TO
THE NOTE IN RELIANCE ON THESE AGREEMENTS.
_______________________
BORROWER'S INITIALS
23. Hold Harmless and Indemnification. Borrower agrees to indemnify Bank and
to hold Bank harmless from, and to reimburse Bank on demand for, all losses and
expenses which Bank sustains or incurs as a result of (i) any payment of a LIBOR
Option Advance prior to the last day of the applicable LIBOR Period for any
reason, including, without limitation, termination of the Note, whether pursuant
to this Addendum or the occurrence of an Event of Default; (ii) any termination
of a LIBOR Period prior to the date it would otherwise end in accordance with
this Addendum; or (iii) any failure by Borrower, for any reason, to borrow any
portion of a LIBOR Option Advance.
24. Funding Losses. The indemnification and hold harmless provisions set forth
in this Addendum shall include, without limitation, all losses and expenses
arising from interest and fees that Bank pays to lenders of funds it obtains in
order to fund the loans to Borrower on the basis of the LIBOR Option(s) and all
losses incurred in liquidating or re-deploying deposits from which such funds
were obtained and loss of profit for the period after termination. A written
statement by Bank to Borrower of such losses and expenses shall be conclusive
and binding, absent manifest error, for all purposes. This obligation shall
survive the termination of this Addendum and the payment of the Note.
25. Regulatory Developments Or Other Circumstances Relating To Illegality or
Impracticality of LIBOR. If any Regulatory Development or other circumstances
relating to the interbank Euro-dollar markets shall, at any time, in Bank's
reasonable determination , make it unlawful or impractical for Bank to fund or
maintain, during any LIBOR Period, to determine or charge interest rates based
upon LIBOR, Bank shall give notice of such circumstances to Borrower and:
A. In the case of a LIBOR Period in progress, Borrower shall, if
requested by Bank, promptly pay any interest which had accrued prior to such
request and the date of such request shall be deemed to be the last day of the
term of the LIBOR Period; and
B. No LIBOR Period may be designated thereafter until Bank determines
that such would be practical.
26. Additional Costs. Borrower shall pay to Bank from time to time, upon
Bank's request, such amounts as Bank determines are needed to compensate Bank
for any costs it incurred which are attributable to Bank having made or
maintained a LIBOR Option Advance or to Bank's obligation to make a LIBOR Option
Advance, or any reduction in any amount receivable by Bank hereunder with
respect to any LIBOR Option or such obligation (such increases in costs and
reductions in amounts receivable being herein called "Additional Costs"),
resulting from any Regulatory Developments, which (i) change the basis of
taxation of any amounts payable to Bank hereunder with respect to taxation of
any amounts payable to Bank hereunder with respect to any LIBOR Option Advance
(other than taxes imposed on the overall net income of Bank for any LIBOR Option
Advance by the jurisdiction where Bank is headquartered or the jurisdiction
where Bank extends the LIBOR Option Advance; (ii) impose or modify any reserve,
special deposit, or similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, Bank (including
any LIBOR Option Advance or any deposits referred to in the definition of
LIBOR); or (iii) impose any other condition affecting this Addendum (or any of
such extension of credit or liabilities). Bank shall notify Borrower of any
event occurring after the date hereof which entitles Bank to compensation
pursuant to this paragraph as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. Determinations by Bank for
purposes of this paragraph, shall be conclusive, provided that such
determinations are made on a reasonable basis.
27. Legal Effect. Except as specifically modified hereby, all of the terms and
conditions of the Note remain in full force and effect.
IN WITNESS WHEREOF, the parties have agreed to the foregoing as of the
date first set forth above.
INTERPORE INTERNATIONAL, INC. COMERICA BANK-CALIFORNIA
By:___________________________ By:__________________________
Xxx XxXxxxxx
Title:________________________ Title: Vice President
By:___________________________
Title:________________________
[LOGO]
Security Agreement
As of June 14, 2002, for value received, the undersigned ("Debtor") pledges,
assigns and grants to Comerica Bank-California ("Bank"), a California banking
corporation, whose address is 000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Commercial Loan Documentation, Mail Code 4770, a continuing security
interest and lien (any pledge, assignment, security interest or other lien
arising hereunder is sometimes referred to herein as a "security interest") in
all of Debtor's right, title and interest in and to the collateral (as defined
below) to secure payment when due, whether by stated maturity, demand
acceleration or otherwise, of all existing and future indebtedness
("Indebtedness") to the Bank of Debtor. Indebtedness includes without limit any
and all obligations or liabilities of the Debtor to the Bank, whether absolute
or contingent, direct or indirect, voluntary or involuntary, liquidated or
unliquidated, joint or several, known or unknown; any and all obligations or
liabilities for which the Debtor would otherwise be liable to the Bank were it
not for the invalidity or unenforceability of them by reason of any bankruptcy,
insolvency or other law, or for any other reason; any and all amendments,
modifications, renewals and/or extensions of any of the above; all costs
incurred by Bank in establishing, determining, continuing, or defending the
validity or priority of its security interest, or in pursuing its rights and
remedies under this Agreement or under any other agreement between Bank and
Debtor or in connection with any proceeding involving Bank as a result of any
financial accommodation to Debtor; and all other costs of collecting
Indebtedness, including without limit attorney fees. Debtor agrees to pay Bank
all such costs incurred by the Bank, immediately upon demand, and until paid all
costs shall bear interest at the highest per annum rate applicable to any of the
Indebtedness, but not in excess of the maximum rate permitted by law. Any
reference in this Agreement to attorney fees shall be deemed a reference to
reasonable fees, costs, and expenses of both in-house and outside counsel and
paralegals, whether inside or outside counsel is used, whether or not a suit or
action is instituted, and to court costs if a suit or action is instituted, and
whether attorney fees or court costs are incurred at the trial court level, on
appeal, in a bankruptcy, administrative or probate proceeding or otherwise.
Debtor further covenants, agrees and represents as follows:
Collateral shall mean all of the following property Debtor now or later owns or
has an interest in, wherever located:
X all Accounts Receivable (for purposes of this Agreement, "Accounts
Receivable" consists of all accounts, general intangibles, chattel paper
(including without limit electronic chattel paper and tangible chattel
paper),contract rights, deposit accounts, documents, instruments and rights
to payment evidenced by chattel paper, documents or instruments health care
insurance receivables, commercial tort claims, letters of credit, letter of
credit rights, supporting obligations, and rights to payment for money or
funds advanced or sold),
X all Inventory,
X all Equipment and Fixtures,
X all Software (for purposes of this Agreement "Software" consists of all (i)
computer programs and supporting information provided in connection with a
transaction relating to the program, and (ii) computer programs embedded in
goods and any supporting information provided in connection with a
transaction relating to the program whether or not the program is associated
with the goods in such a manner that it customarily is considered part of the
goods, and whether or not, by becoming the owner of the goods, a person
acquires a right to use the program in connection with the goods, and whether
or not the program is embedded in goods that consist solely of the medium in
which the program is embedded),
X specific items listed below and/or on attached Schedule A, if any, is/are
also included in Collateral:
X all goods, instruments, documents, policies and certificates of insurance,
deposits, money or other property (except real property which is not a
fixture) which are now or later in possession of Bank, or as to which Bank
now or later controls possession by documents or otherwise, and
X all additions, attachments, accessions, parts, replacements, substitutions,
renewals, interest, dividends distributions, rights of any kind (including
but not limited to stock splits, stock rights, voting and preferential
rights), products, and proceeds of or pertaining to the above including,
without limit, cash or other property which were proceeds and are recovered
by a bankruptcy trustee or otherwise as a preferential transfer by Debtor.
In the definition of Collateral, a reference to a type of collateral shall not
be limited by a separate reference more specific or narrower type of that
collateral.
Warranties, Covenants and Agreements. Debtor warrants, covenants and agrees as
follows:
Debtor shall furnish to Bank, in form and at intervals as Bank may
request, any information Bank may reasonably request and allow
Bank to examine, inspect, and copy any of Debtor's books and
records (upon three (3) business days' notice unless an Event of
Default has occurred and is continuing, in which event no notice
shall be required), subject to the terms of the Confidentiality
Agreement. Debtor shall, at the reasonable request of Bank, xxxx
its records pertaining to the Collateral to clearly indicate the
security interest of Bank under this Agreement.
At the time any Collateral becomes, or is represented to be, subject to
a security interest in favor of Bank Debtor shall be deemed to
have warranted that (a) Debtor is the lawful owner of the
Collateral and has the right and authority to subject it to a
security interest granted to Bank; (b) none of the Collateral is
subject to any security interest other than Permitted Liens; (c)
there are no financing statements on file, other than in favor
of Bank or in connection with Permitted Liens; (d) no person,
other than Bank, has possession or control (as defined in the
Uniform Commercial Code) of any Collateral of such nature that
perfection of a security interest may be accomplished by
control; and (e) Debtor acquired its rights in the Collateral in
the ordinary course of its business.
Debtor will keep the Collateral free at all times from all claims,
liens, security interests and encumbrances other than Permitted
Liens. Debtor will not, without the prior written consent of
Bank, sell, transfer or lease, or permit to be sold, transferred
or leased, any or all of the Collateral, except as permitted
under the terms of the Loan Agreement (as hereinafter defined),
and will not return any Inventory to its supplier. Bank or its
representatives may at all reasonable times inspect the
Collateral and may enter upon all premises where the Collateral
is kept or might be located (upon three (3) business days'
notice unless an Event of Default has occurred and is
continuing, in which event no notice shall be required).
Debtor will do all acts and will execute or cause to be executed all
writings reasonably requested by Bank to establish, maintain and
continue an exclusive, perfected and first security interest of
Bank in the Collateral. Debtor agrees that Bank has no
obligation to acquire or perfect any lien on or security
interest in any asset(s), whether realty or personalty, to
secure payment of the Indebtedness, and Debtor is not relying
upon assets in which the Bank may have a lien or security
interest for payment of the indebtedness.
Debtor will pay within the time that they can be paid without
interest or penalty all taxes, assessments and similar charges
which at any time are or may become a lien, charge, or
encumbrance upon any Collateral, except to the extent Borrower
is contesting the same in good faith in appropriate proceedings
and Borrower has established reserves in accordance with GAAP.
If Debtor fails to pay any of these taxes, assessments, or other
charges in the time provided above, Bank has the option (but not
the obligation) to do so and Debtor agrees to repay all amounts
so expended by Bank immediately upon demand, together with
interest at the highest lawful default rate which could be
charged by Bank on any Indebtedness.
Debtor will keep the Collateral in good condition and will protect it
from loss, damage, or deterioration from any cause. Debtor has
and will maintain at all times (a) with respect to the
Collateral, insurance under an "all risk" policy against fire
and other risks customarily insured against, and (b) public
liability insurance and other insurance as may be required by
law or reasonably required by Bank, all of which insurance shall
be in amount, form and content, and written by companies as may
be satisfactory to Bank, containing a lender's loss payable
endorsement acceptable to Bank. Debtor will deliver to Bank
immediately upon demand evidence satisfactory to Bank that the
required insurance has been procured. If Debtor fails to
maintain satisfactory insurance Bank has the option (but not the
obligation) to do so and Debtor agrees to repay all amounts so
expended by Bank immediately upon demand, together with interest
at the highest lawful default rate which could be charged by
Bank on any Indebtedness.
[Intentionally Omitted.]
Debtor at all times shall be in strict compliance with all
Environmental Laws.
If Bank, acting in its sole discretion, redelivers Collateral to
Debtor or Debtor's designee for the purpose of (a) the ultimate
sale or exchange thereof; or (b) presentation, collection,
renewal, or registration of transfer thereof; or (c) loading,
unloading, storing, shipping, transshipping, manufacturing,
processing or otherwise dealing with it preliminary to sale or
exchange; such redelivery shall be in trust for the benefit of
Bank and shall not constitute a release of Bank's security
interest in it or in the proceeds or products of it unless Bank
specifically so agrees in writing. If Debtor requests any such
redelivery, Debtor will deliver with such request a duty
executed financing statement in form and substance satisfactory
to Bank. Any proceeds of Collateral coming into Debtor's
possession as a result of any such redelivery shall be held in
trust for Bank and immediately delivered to Bank for application
on the Indebtedness. Bank may (in its sole discretion) deliver
any or all of the Collateral to Debtor, and such delivery by
Bank shall discharge Bank from all liability or responsibility
for such Collateral. Bank, at its option, may require delivery
of any Collateral to Bank at any time with such endorsements or
assignments of the Collateral as Bank may request.
At any time and without notice, upon the occurrence and during
the continuance of an Event of Default, Bank may, as to
Collateral other than Equipment, Fixtures or Inventory, (a)
cause any or all of such Collateral to be transferred to its
name or to the name of its nominees; (b) receive or collect by
legal proceedings or otherwise all dividends, interest,
principal payments and other sums and all other distributions at
any time payable or receivable on account of such Collateral,
and hold the same as Collateral or apply the same to the
Indebtedness, the manner and distribution of the application to
be in the sole discretion of Bank; (c) enter into any extension,
subordination, reorganization, deposit, merger or consolidation
agreement or any other agreement relating to or affecting such
Collateral, and deposit or surrender control of such Collateral,
and accept other property in exchange for such Collateral and
hold or apply the property or money so received pursuant to this
Agreement; and (d) take such actions in its own name or in
Debtor's name as Bank, in its sole discretion, deems necessary
or appropriate to establish exclusive control (as defined in the
Uniform Commercial Code) over any Collateral of such nature that
perfection of the Bank's security interest may be accomplished
by control.
Bank may assign any of the Indebtedness and deliver any or all of
the Collateral to its assignee, who then shall have with respect
to Collateral so delivered all the rights and powers of Bank
under this Agreement, and after that Bank shall be fully
discharged from all liability and responsibility with respect to
Collateral so delivered.
[Intentionally Omitted.]
Debtor shall defend, indemnify and hold harmless Bank, its
employees, agents, shareholders, affiliates, officers, and
directors from and against any and all claims, damages, fines,
expenses, liabilities or causes of action of whatever kind,
including without limit consultant fees, legal expenses, and
attorney fees, suffered
by any of them as a direct or indirect result of any actual or
asserted violation of any law, including, without limit,
Environmental Laws, or of any remediation relating to any
property required by any law, including without limit
Environmental Laws, INCLUDING ANY CLAIMS, DAMAGES, FINES,
EXPENSES, LIABILITIES OR CAUSES OF ACTION OF WHATEVER KIND
RESULTING FROM BANK'S OWN NEGLIGENCE, except and to the extent
(but only to the extent) caused by Bank's gross negligence or
willful misconduct.
Collection of Proceeds.
Debtor agrees to collect and enforce payment of all Collateral until
Bank shall direct Debtor to the contrary. Immediately upon
notice to Debtor by Bank and at all times after that, after the
occurrence and during the continuance of an Event of Default
Debtor agrees to fully and promptly cooperate and assist Bank in
the collection and enforcement of all Collateral and to hold in
trust for Bank all payments received in connection with
Collateral and from the sale, lease or other disposition of any
Collateral, all rights by way of suretyship or guaranty and all
rights in the nature of a lien or security interest which Debtor
now or later has regarding Collateral. Immediately upon and
after such notice, Debtor agrees to (a) endorse to Bank and
immediately deliver to Bank all payments received on Collateral
or from the sale, lease or other disposition of any Collateral
or arising from any other rights or interests of Debtor in the
Collateral, in the form received by Debtor without commingling
with any other funds, and (b) immediately deliver to Bank all
property in Debtor's possession or later coming into Debtor's
possession through enforcement of Debtor's rights or interests
in the Collateral. Debtor irrevocably authorizes Bank or any
Bank employee or agent to endorse the name of Debtor upon any
checks or other items which are received in payment for any
Collateral, and to do any and all things necessary in order to
reduce these items to money. Bank shall have no duty as to the
collection or protection of Collateral or the proceeds of it,
nor as to the preservation of any related rights, beyond the use
of reasonable care in the custody and preservation of Collateral
in the possession of Bank. Debtor agrees to take all steps
necessary to preserve rights against prior parties with respect
to the Collateral. Nothing in this Section 3.1 shall be deemed a
consent by Bank to any sale, lease or other disposition of any
Collateral.
Debtor agrees that immediately upon Bank's request (upon the occurrence
and during the continuance of an Event of Default) the
indebtedness shall be on a "remittance basis" as follows: Debtor
shall at its sole expense establish and maintain (and Bank at
Bank's option, may establish and maintain at Debtor's expense):
(a) an United States Post Office lock box (the "Lock Box"), to
which Bank shall have exclusive access and control. Debtor
expressly authorizes Bank, from time to time, to remove contents
from the Lock Box, for disposition in accordance with this
Agreement. Debtor agrees to notify all account debtors and other
parties obligated to Debtor that all payments made to Debtor
(other than payments by electronic funds transfer) shall be
remitted, for the credit of Debtor, to the Lock Box, and Debtor
shall include a like statement on all invoices; and (b) a non-
interest bearing deposit account with Bank which shall be
titled as designated by Bank (the "Cash Collateral Account")
to which Bank shall have exclusive access and control. Debtor
agrees to notify all account debtors and other parties
obligated to Debtor that all payments made to Debtor by
electronic funds transfer shall be remitted to the Cash
Collateral Account, and Debtor, at Bank's request, shall
include a like statement on all invoices. Debtor shall execute
all documents and authorizations as required by Bank to
establish and maintain the Lock Box and the Cash Collateral
Account.
All items or amounts which are remitted to the Lock Box, to the
Cash Collateral Account, or otherwise delivered by or for the
benefit of Debtor to Bank on account of partial or full
payment of, or with respect to, any Collateral shalt, at
Bank's option, (a) be applied to the payment of the
Indebtedness, whether then due or not, in such order or at
such time of application as Bank may determine in its sole
discretion, or, (b) be deposited to the Cash Collateral
Account. Debtor agrees that Bank shall not be liable for any
loss or damage which Debtor may suffer as a result of Bank's
processing of items or its exercise of any other rights or
remedies under this Agreement, including without limitation
indirect, special or consequential damages, loss of revenues
or profits, or any claim, demand or action by any third party
arising out of or in connection with the processing of items
or the exercise of any other rights or remedies under this
Agreement. Debtor agrees to indemnify and hold Bank harmless
from and against all such third party claims, demands or
actions, and all related expenses or liabilities, including,
without limitation, attorney's fees and INCLUDING CLAIMS,
DAMAGES, FINES, EXPENSES, LIABILITIES OR CAUSES OF ACTION OF
WHATEVER KIND RESULTING FROM BANK'S OWN NEGLIGENCE except to
the extent (but only to the extent) caused by Bank's gross
negligence or willful misconduct.
Defaults, Enforcement and Application of Proceeds.
An "Event of Default" as defined in the Loan Agreement shall be an
Event of Default hereunder.
Upon the occurrence of any Event of Default, Bank may at its
discretion and without prior notice to Debtor declare any or
all of the indebtedness to be immediately due and payable, and
shall have and may exercise any one or more of the following
rights and remedies:
Exercise all the rights and remedies upon Default, in
foreclosure and otherwise, available to secured parties
under the provisions of the Uniform Commercial Code and
other applicable law;
Institutelegal proceedings to foreclose upon the lien and
security interest granted by this Agreement, to recover
judgment for all amounts then due and owing as
Indebtedness, and to collect the same out of any
Collateral or the proceeds of any sale of it;
Institutelegal proceedings for the sale, under the judgment
or decree of any court of competent jurisdiction, of
any or all Collateral; and/or
Personally or by agents, attorneys, or appointment of a
receiver, enter upon any premises where Collateral
may then be located, and take possession of all or
any of it and/or render it unusable; and without
being responsible for loss or damage to such
Collateral, hold, operate, sell, lease, or dispose of
all or any Collateral at one or more public or
private sales, leasings or other dispositions, at
places and it on terms and conditions as Bank may
deem fit, without any previous demand or
advertisement; and except as provided in this
Agreement, all notice of sale, lease or other
disposition, and advertisement, and other notice or
demand, any right or equity of redemption, and any
obligation of a prospective purchaser or lessee to
inquire as to the power and authority of Bank to
sell, lease, or otherwise dispose of the Collateral
or as to the application by Bank of the proceeds of
sale or otherwise, which would otherwise be required
by, or available to Debtor under, applicable law are
expressly waived by Debtor to the fullest extent
permitted.
At any sale pursuant to this Section 4.2, whether
under the power of sale, by virtue of judicial
proceedings or otherwise, it shall not be necessary
for Bank or a public officer under order of a court
to have present physical or constructive possession
of Collateral to be sold. The recitals contained in
any conveyances and receipts made and given by Bank
or the public officer to any purchaser at any sale
made pursuant to this Agreement shall, to the extent
permitted by applicable law, conclusively establish
the truth and accuracy of the matters stated
(including, without limit, as to the amounts of the
principal of and interest on the Indebtedness, the
accrual and nonpayment of it and advertisement and
conduct of the sale); and all prerequisites to the
sale shall be presumed to have been satisfied and
performed. Upon any sale of any Collateral, the
receipt of the officer making the sale under judicial
proceedings or of Bank shall be sufficient discharge
to the purchaser for the purchase money, and the
purchaser shall not be obligated to see to the
application of the money. Any sale of any Collateral
under this Agreement shall be a perpetual bar against
Debtor with respect to that Collateral. At any sale
or other disposition of the Collateral pursuant to
this Section 4.2, Bank disclaims all warranties which
would otherwise be given under the Uniform Commercial
Code, including without limit a disclaimer of any
warranty relating to title, possession, quiet
enjoyment or the like, and Bank may communicate these
disclaimers to a purchaser at such disposition. This
disclaimer of warranties will not render the sale
commercially unreasonable.
Upon the occurrence and during the continuance of an Event of
Default, debtor shall at the request of Bank, notify the
account debtors or obligors of Bank's security interest in the
Collateral and direct payment of it to Bank. Bank may, itself,
upon the occurrence and during the continuance of any Event of
Default so notify and direct any account debtor or obligor. At
the reasonable request of Bank, whether or not an Event of
Default shall have occurred, Debtor shall immediately take
such actions as the Bank shall request to establish exclusive
control (as defined in the Uniform Commercial Code) by Bank
over any Collateral which is of such a nature that perfection
of a security interest may be accomplished by control.
The proceeds of any sale or other disposition of Collateral
authorized by this Agreement shall be applied by Bank first
upon all expenses authorized by the Uniform Commercial Code
and all reasonable attorney fees and legal expenses incurred
by
Bank; the balance of the proceeds of the sale or other
disposition shall be applied in the payment of the
Indebtedness, first to interest, then to principal, then to
remaining Indebtedness and the surplus, if any, shall be paid
over to Debtor or to such other person(s) as may be entitled
to it under applicable law. Debtor shall remain liable for any
deficiency, which it shall pay to Bank immediately upon
demand. Debtor agrees that Secured Party shall be under no
obligation to accept any noncash proceeds in connection with
any sale or disposition of Collateral unless failure to do so
would be commercially unreasonable. If Secured Party agrees in
its sole discretion to accept noncash proceeds (unless the
failure to do so would be commercially unreasonable), Secured
Party may ascribe any commercially reasonable value to such
proceeds. Without limiting the foregoing, Secured Party may
apply any discount factor in determining the present value of
proceeds to be received in the future or may elect to apply
proceeds to be received in the future only as and when such
proceeds are actually received in cash by Secured Party.
Nothing in this Agreement is intended, nor shall it be construed,
to preclude Bank from pursuing any other remedy provided by
law for the collection of the Indebtedness or for the recovery
of any other sum to which Bank may be entitled for the breach
of this Agreement by Debtor. Nothing in this Agreement shall
reduce or release in any way any rights or security interests
of Bank contained in any existing agreement between Borrower,
Debtor, or any Guarantor and Bank.
No waiver of Default or consent to any act by Debtor shall be
effective unless in writing and signed by an authorized
officer of Bank. No waiver of any Default or forbearance on
the part of Bank in enforcing any of its rights under this
Agreement shall operate as a waiver of any other Default or of
the same Default on a future occasion or of any rights.
Debtor hereby (a) irrevocably appoints Bank or any agent of Bank
(which appointment is coupled with an interest) the true and
lawful attorney of Debtor (with full power of substitution) in
the name, place and stead of, and at the expense of, Debtor
and (b) authorizes Bank or any agent of Bank, in its own name,
at Debtor's expense, to do any of the following at any time
(upon the occurrence and during the continuance of an Event of
Default), as Bank, in its sole discretion, deems appropriate:
to demand, receive, xxx for, and give receipts or acquittances
for any moneys due or to become due on any Collateral
and to endorse any item representing any payment on or
proceeds of the Collateral;
to execute and file in the name of and on behalf of Debtor all
financing statements or other filings deemed necessary
or desirable by Bank to evidence, perfect, or continue
the security interests granted in this Agreement; and
to do and perform any act on behalf of Debtor permitted or
required under this Agreement.
Upon the occurrence and during the continuance of an Event of
Default, Debtor also agrees, upon request of Bank, to assemble
the Collateral and make it available to
Bank at any place designated by Bank which is reasonably
convenient to Bank and Debtor.
The following shall be the basis for any finder of fact's
determination of the value of any Collateral which is the
subject matter of a disposition giving rise to a calculation
of any surplus or deficiency under Section 9615(f) of the
Uniform Commercial Code (as in effect on or after July 1,
2001): (a) The Collateral which is the subject matter of the
disposition shall be valued in an "as is" condition as of the
date of the disposition, without any assumption or expectation
that such Collateral xxxx be repaired or improved in any
manner; (b) the valuation shall be based upon an assumption
that the transferee of such Collateral desires a resale of the
Collateral for cash promptly (but no later than 30 days)
following the disposition; (c) all reasonable closing costs
customarily borne by the seller in commercial sales
transactions relating to property similar to such Collateral
shall be deducted including, without limitation, brokerage
commissions, tax prorations, attorney's fees, whether inside
or outside counsel is used, and marketing costs; (d) the value
of the Collateral which is the subject matter of the
disposition shall be further discounted to account for any
estimated holding costs associated with maintaining such
Collateral pending sale (to the extent not accounted for in
(c) above), and other maintenance, operational and ownership
expenses; and (e) any expert opinion testimony given or
considered in connection with a determination of the value of
such Collateral must be given by persons having at least 5
years experience in appraising property similar to the
Collateral and who have conducted and prepared a complete
written appraisal of such Collateral taking into consideration
the factors set forth above. The "value" of any such
Collateral shall be a factor in determining the amount of
proceeds which would have been realized in a disposition to a
transferee other than a secured party, a person related to a
secured party or a secondary obligor under Section 9615(f) of
the Uniform Commercial Code.
Miscellaneous.
Until Bank is advised in writing by Debtor to the contrary, all
notices, requests and demands required under this Agreement or
by law shall be given to, or made upon, Debtor at the first
address indicated in Section 5.15 below.
Debtor xxxx give Bank not less than 30 days' prior written notice
of all contemplated changes in Debtor's name, location, chief
executive office, principal place of business, and/or location
of any Collateral (other than the Sales of Inventory in the
ordinary course of business), but the giving of this notice
shall not cure any Event of Default caused by this change.
Bank assumes no duty of performance or other responsibility under
any contracts contained within the Collateral.
Bank has the right to sell, assign, transfer, negotiate or grant
participations or any interest in, any or all of the
Indebtedness and any related obligations, including without
limit this Agreement. in connection with the above, but
without limiting its ability to make other disclosures to the
full extent allowable, Bank may disclose all documents and
information which Bank now or later has relating to Debtor,
the Indebtedness or this Agreement, however obtained, subject
to the terms of the Confidentiality Agreement. Debtor further
agrees that Bank may provide information relating to this
Agreement or relating to Debtor to the Bank's parent,
affiliates, subsidiaries, and service providers.
In addition to Bank's other rights, any indebtedness owing from Bank to
Debtor can be set off and applied by Bank on any Indebtedness
at any time(s) either before or after maturity or demand
without notice to anyone. Any such action shall not constitute
acceptance of collateral in discharge of any portion of the
Indebtedness.
[Intentionally Omitted.]
[Intentionally Omitted.]
In the event that applicable law shall obligate Bank to give prior
notice to Debtor of any action to be taken under this
Agreement, Debtor agrees that a written notice given to Debtor
at least ten days before the date of the act shall be
reasonable notice of the act and, specifically, reasonable
notification of the time and place of any public sale or of
the time after which any private sale, lease, or other
disposition is to be made, unless a shorter notice period is
reasonable under the circumstances. A notice shall be deemed
to be given under this Agreement when delivered to Debtor or
when placed in an envelope addressed to Debtor and deposited,
with postage prepaid, in a post office or official depository
under the exclusive care and custody of the United States
Postal Service or delivered to an overnight courier. The
mailing shall be by overnight courier, certified, or first
class mail.
Notwithstanding any prior revocation, termination, surrender, or
discharge of this Agreement in whole or in part, the
effectiveness of this Agreement shall automatically continue
or be reinstated in the event that any payment received or
credit given by Bank in respect of the Indebtedness is
returned, disgorged, or rescinded under any applicable law,
including, without limitation, bankruptcy or insolvency laws,
in which case this Agreement, shall be enforceable against
Debtor as if the returned, disgorged, or rescinded payment or
credit had not been received or given by Bank, and whether or
not Bank relied upon this payment or credit or changed its
position as a consequence of it. In the event of continuation
or reinstatement of this Agreement, Debtor agrees upon demand
by Bank to execute and deliver to Bank those documents which
Bank determines are appropriate to further evidence (in the
public records or otherwise) this continuation or
reinstatement, although the failure of Debtor to do so shall
not affect in any way the reinstatement or continuation.
This Agreement and all the rights and remedies of Bank under this
Agreement shall inure to the benefit of Bank's successors and
assigns and to any other holder who derives from Bank title to
or an interest in the Indebtedness or any portion of it,
and shall bind Debtor and the heirs, legal representatives, successors,
and assigns of Debtor. Nothing in this Section 5.10 is deemed a consent
by Bank to any assignment by Debtor.
[Intentionally Omitted.]
Except as otherwise provided in this Agreement, all terms in this Agreement have
the meanings assigned to them in Division 9 (or, absent definition in
Division 9, in any other Division) of the Uniform Commercial Code, as
those meanings may be amended, revised or replaced from time to time.
"Uniform Commercial Code', means the California Uniform Commercial Code,
as amended.
No single or partial exercise, or delay in the exercise, of any right or power
under this Agreement, shall preclude other or further exercise of the
rights and powers under this Agreement. The unenforceability of any
provision of this Agreement shall not affect the enforceability of the
remainder of this Agreement. This Agreement constitutes the entire
agreement of Debtor and Bank with respect to the subject matter of this
Agreement. No amendment or modification of this Agreement shall be
effective unless the same shall be in writing and signed by Debtor and an
authorized officer of Bank. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPALS.
To the extent that any of the Indebtedness is payable upon demand, nothing
contained in this Agreement shall modify the terms and conditions of that
Indebtedness nor shall anything contained in this Agreement prevent Bank
from making demand, without notice and with or without reason, for
immediate payment of any or all of that Indebtedness at any time(s),
whether or not an Event of Default has occurred.
Debtor represents and warrants that:
Debtor's exact name is the name set forth in this Agreement. Debtor
further represents and warrants the following and agrees that
Debtor is, and at all times shall be a registered organization
which is organized under the laws of the State of Delaware; and
Except as to Inventory which in the ordinary course of Debtor's business
is in the hands of Debtor's agents or direct sales
representatives or held for use by hospitals, the Collateral is
located and shall be maintained only at the locations identified
in Schedule A attached hereto. Debtor, from time to time, at the
request of Bank will provide Bank with an updated list of its
agents and direct sales representatives.
This Agreement shall be terminated only by the authorized filing of a
termination statement in accordance with the applicable provisions of the
Uniform Commercial Code, but the obligations contained in Section 2.13 of
this Agreement shall survive termination.
Debtor agrees to reimburse the Bank upon demand for any and all costs and
expenses (including, without limit, court costs, legal expenses
and reasonable attorneys, fees, whether inside or outside counsel
is used, whether or not suit is instituted and, if suit is
instituted, whether at the trial court level, appellate level `
in a bankruptcy, probate or administrative proceeding or
otherwise) incurred in enforcing or attempting to enforce this
Agreement or in exercising or attempting to exercise any right or
remedy under this Agreement or incurred in any other matter or
proceeding relating to this Security Agreement.
As used herein, "Loan Agreement" means that certain Business Loan
Agreement, dated as of even date herewith, between Debtor and
Bank, as the same may be amended or restated from time to time in
accordance with its terms. All initially capitalized terms used
but not defined herein have the meanings given to such terms in
the Loan Agreement.
DEBTOR AND BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL
ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTER CONSULTING (OR HAVING
HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL
BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE
INDEBTEDNESS.
DEBTOR: Interpore International, Inc.
---------------------------------------
DEBTOR NAME TYPED/PRINTED
By:___________________________________________
SIGNATURE OF
Its:__________________________________________
TITLE (If applicable)
By:___________________________________________
SIGNATURE OF
Its:__________________________________________
TITLE (If applicable)
Borrower(s):
Interpore International, Inc.
[LOGO]
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement (the "Agreement") is made as
of June 14, 2002, by and between INTERPORE INTERNATIONAL, INC., a Delaware
corporation ("Grantor"), and COMERICA BANK-CALIFORNIA, a California banking
corporation ("Secured Party").
RECITALS
A. Secured Party has agreed to lend to Grantor certain funds (the "Loan")
and Grantor desires to borrow such funds from Secured Party pursuant to the
terms of a Master Revolving Note and a Business Loan Agreement, each dated of
even date herewith (the "Loan Documents"). All capitalized terms used herein
without definition shall have the meanings ascribed to them in the Loan
Documents.
B. In order to induce Secured Party to make the Loan, Grantor has agreed
to assign certain intangible property to Secured Party for purposes of securing
the obligations of Grantor to Secured Party.
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
28. Grant of Security Interest. As collateral security for the prompt and
complete payment and performance of all of Grantor's present or future
indebtedness, obligations and liabilities to Secured Party, Grantor hereby
grants a security interest and mortgage to Secured Party, as security, in and to
Grantor's entire right, title and interest in, to and under the following (all
of which shall collectively be called the "Collateral"):
(a) Any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship and derivative
work thereof, whether published or unpublished and whether or not the same also
constitutes a trade secret, now or hereafter existing, created, acquired or
held, including without limitation those set forth on Exhibit A attached hereto
(collectively, the "Copyrights");
(b) Any and all trade secrets, and any and all intellectual property
rights in computer software and computer software products now or hereafter
existing, created, acquired or held;
(c) Any and all design rights which may be available to Grantor now
or hereafter existing, created, acquired or held;
(d) All patents, patent applications and like protections including,
without limitation, improvements, divisions, continuations, renewals, reissues,
extensions and
continuations-in-part of the same, including without limitation the patents and
patent applications set forth on Exhibit B attached hereto (collectively, the
"Patents");
(e) Any trademark and servicemark rights, whether registered or not,
applications to register and registrations of the same and like protections, and
the entire goodwill of the business of Grantor connected with and symbolized by
such trademarks, including without limitation those set forth on Exhibit C
attached hereto (collectively, the "Trademarks");
(f) Any and all claims for damages by way of past, present and future
infringement of any of the rights included above, with the right, but not the
obligation, to xxx for and collect such damages for said use or infringement of
the intellectual property rights identified above;
(g) All licenses or other rights to use any of the Copyrights,
Patents or Trademarks, and all license fees and royalties arising from such use
to the extent permitted by such license or rights; and
(h) All amendments, extensions, renewals and extensions of any of the
Copyrights, Trademarks or Patents; and
(i) All proceeds and products of the foregoing, including without
limitation all payments under insurance or any indemnity or warranty payable in
respect of any of the foregoing.
29. Authorization and Request. Grantor authorizes and requests that the
Register of Copyrights and the Commissioner of Patents and Trademarks record
this security agreement.
30. Covenants and Warranties. Grantor represents, warrants, covenants and
agrees as follows:
(a) Grantor is now the sole owner of the Collateral, except for
licenses granted by Grantor to its customers in the ordinary course of business;
(b) Performance of this Agreement does not conflict with or result in
a breach of any material agreement to which Grantor is party or by which Grantor
is bound, except to the extent that certain intellectual property agreements
prohibit the assignment of the rights thereunder to a third party without the
licensor's or other party's consent and this Agreement constitutes an
assignment;
(c) During the term of this Agreement, Grantor will not transfer or
otherwise encumber any interest in the Collateral, except for licenses granted
by Grantor in the ordinary course of business, or as set forth in this
Agreement;
(d) Each of the Patents is valid and enforceable, and no part of the
Collateral has been judged invalid or unenforceable, in whole or in part, and no
claim has been made that any part of the Collateral violates the rights of any
third party;
(e) Grantor shall deliver to Secured Party within thirty (30) days of
the last day of each fiscal year, a report signed by Grantor, in form reasonably
acceptable to Secured Party, listing any applications or registrations that
Grantor has made or filed in respect of any patents, copyrights or trademarks
and the status of any outstanding applications or registrations. Grantor shall
promptly advise Secured Party of any material change in the composition of the
Collateral, including but not limited to any subsequent ownership right of the
Grantor in or to any Trademark, Patent or Copyright not specified in this
Agreement;
(f) Grantor shall (i) protect, defend and maintain the validity and
enforceability of the Trademarks, Patents and Copyrights, and (ii) not allow any
Trademarks, Patents or Copyrights to be abandoned, forfeited or dedicated to the
public without the written consent of Secured Party, which shall not be
unreasonably withheld, unless Grantor determines that reasonable business
practices suggest that abandonment is appropriate;
(g) Grantor shall, from time to time, execute and file such other
instruments, and take such further actions as Secured Party may reasonably
request from time to time to perfect or continue the perfection of Secured
Party's interest in the Collateral;
(h) This Agreement creates, and in the case of after acquired
Collateral, this Agreement will create at the time Grantor first has rights in
such after acquired Collateral, in favor of Secured Party a valid and perfected
first priority security interest in the Collateral in the United States, subject
only to Permitted Liens, securing the payment and performance of the obligations
evidenced by the Loan Documents upon making the filings referred to in clause
(i) below;
(i) Except for, and upon, the filing of a Financing Statement (Form
UCC-1) with the Secretary of State of the State of Delaware and the filing with
the United States Patent and Trademark office with respect to the Patents and
Trademarks and the Register of Copyrights with respect to the Copyrights
necessary to perfect the security interests created hereunder, and, except as
has been already made or obtained, no authorization, approval or other action
by, and no notice to or filing with, any U.S. governmental authority or U.S.
regulatory body is required either (i) for the grant by Grantor of the security
interest granted hereby or for the execution, delivery or performance of this
Agreement by Grantor in the U.S. or (ii) for the perfection in the United States
or the exercise by Secured Party of its rights and remedies hereunder;
(j) All information heretofore, herein or hereafter supplied to
Secured Party by or on behalf of Grantor with respect to the Collateral is
accurate and complete in all material respects.
(k) Grantor shall not enter into any agreement that would materially
impair or conflict with Grantor's obligations hereunder without Secured Party's
prior written consent, which consent shall not be unreasonably withheld. Grantor
shall not permit the inclusion in any material contract to which it becomes a
party of any provisions that could or might in any way prevent the creation of a
security interest in Grantor's rights and interests in any property included
within the definition of the Collateral acquired under such contracts, except
that certain contracts may contain anti-assignment provisions that could in
effect prohibit the creation of a
security interest in such contracts if Grantor is required, in its commercially
reasonable judgment to accept such provisions; and
(l) Upon any executive officer of Grantor obtaining knowledge thereof,
Grantor will promptly notify Secured Party in writing of any event that
materially adversely affects the value of any of the Collateral, the ability of
Grantor to dispose of any Collateral or the rights and remedies of Secured Party
in relation thereto, including the levy of any legal process against any of the
Collateral.
31. Secured Party's Rights. Secured Party shall have the right, but not the
obligation, to take, at Grantor's sole expense, any actions that Grantor is
required under this Agreement to take but which Grantor fails to take, after
fifteen (15) days' notice to Grantor. Grantor shall reimburse and indemnify
Secured Party for all reasonable costs and expenses incurred in the reasonable
exercise of its rights under this section 4.
32. Inspection Rights. Grantor hereby grants to Secured Party and its
employees, representatives and agents the right to visit, during reasonable
hours upon prior reasonable written notice to Grantor, any of Grantor's plants
and facilities that manufacture, install or store products (or that have done so
during the prior six-month period) that are sold utilizing any of the
Collateral, and to inspect the products and quality control records relating
thereto upon reasonable notice to Grantor and as often as may be reasonably
requested.
33. Further Assurances; Attorney in Fact.
(a) On a continuing basis, Grantor will make, execute, acknowledge and
deliver, and file and record in the proper filing and recording places in the
United States, all such instruments, including, appropriate financing and
continuation statements and collateral agreements and filings with the United
States Patent and Trademark Office and the Register of Copyrights, and take all
such action as may reasonably be deemed necessary or advisable, or as requested
by Secured Party, to perfect Secured Party's security interest in all
Copyrights, Patents and Trademarks and otherwise to carry out the intent and
purposes of this Agreement, or for assuring and confirming to Secured Party the
grant or perfection of a security interest in all Collateral.
(b) Grantor hereby irrevocably appoints Secured Party as Grantor's
attorney-in-fact, with full authority in the place and stead of Grantor and in
the name of Grantor, from time to time upon the occurrence and during the
continuance of an Event of Default in Secured Party's discretion, to take any
action and to execute any instrument which Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including:
(1) To modify, in its sole discretion, this Agreement without
first obtaining Grantor's approval of or signature to such modification by
amending Exhibit A, Exhibit B and Exhibit C, hereof, as appropriate, to include
reference to any right, title or interest in any Copyrights, Patents or
Trademarks acquired by Grantor after the execution hereof or to delete any
reference to any right, title or interest in any Copyrights, Patents or
Trademarks in which Grantor no longer has or claims any right, title or
interest;
(2) To file, in its sole discretion, one or more financing or
continuation statements and amendments thereto, relative to any of the
Collateral without the signature of Grantor where permitted by law; and
(3) To transfer the Collateral into the name of Secured Party or
a third party to the extent permitted under the California Uniform Commercial
Code.
34. Events of Default. The occurrence of any Event of Default (as defined
in the Loan Documents) shall constitute an Event of Default under this
Agreement.
35. Remedies. Upon the occurrence and during the continuance of an Event of
Default, Secured Party shall have the right to exercise all the remedies of a
secured party under the California Uniform Commercial Code, including without
limitation the right to require Grantor to assemble the Collateral and any
tangible property in which Secured Party has a security interest and to make it
available to Secured Party at a place designated by Secured Party. Secured Party
shall have a nonexclusive, royalty free license to use the Copyrights, Patents
and Trademarks to the extent reasonably necessary to permit Secured Party to
exercise its rights and remedies upon the occurrence of an Event of Default.
Grantor will pay any expenses (including reasonable attorneys' fees) incurred by
Secured Party in connection with the exercise of any of Secured Party's rights
hereunder, including without limitation any expense incurred in disposing of the
Collateral. All of Secured Party's rights and remedies with respect to the
Collateral shall be cumulative.
36. Indemnity. Grantor agrees to defend, indemnify and hold harmless
Secured Party and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement, and
(b) all losses or expenses in any way suffered, incurred, or paid by Secured
Party as a result of or in any way arising out of, following or consequential to
transactions between Secured Party and Grantor, whether under this Agreement or
otherwise (including without limitation attorneys fees and expenses), except for
losses arising from or out of Secured Party's gross negligence or willful
misconduct.
37. Course of Dealing. No course of dealing, nor any failure to exercise,
nor any delay in exercising any right, power or privilege hereunder shall
operate as a waiver thereof.
38. Attorneys Fees. If any action relating to this Agreement is brought by
either party hereto against the other party, the prevailing party shall be
entitled to recover reasonable attorneys fees, costs and disbursements.
39. Amendments. This Agreement may be amended only by a written instrument
signed by both parties hereto.
40. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute the same instrument.
41. California Law and Jurisdiction; Jury Waiver. This Agreement shall be
governed by the laws of the State of California, without regard for choice of
law provisions. Grantor and
Secured Party consent to the exclusive jurisdiction of any state or federal
court located in Santa Xxxxx County, California. GRANTOR AND SECURED PARTY EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THE LOAN DOCUMENTS, THIS AGREEMENT, OR
ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
* * *
[remainder of this page intentionally left blank]
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
Address of Grantor: GRANTOR:
000 Xxxxxxxxxx Xx
Xxxxxx, XX 00000 Interpore International, Inc., a
Delaware corporation
By:_____________________________
Name:___________________________
Its:____________________________
By:_____________________________
Name:___________________________
Its:____________________________
Address of Secured Party: SECURED PARTY:
00 X. Xxxxxxx Xxxx Xxxxxxxx Bank-California, a
Xxx Xxxx, XX. 00000 California Banking corporation
By:_____________________________
Xxx XxXxxxxx
Title: Vice President
