Exhibit 10.5
Imperial Bank
Member FDIC
April 2, 1998
000 Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx Borrower: Hoovers, Inc.
Subject: Credit Terms and Conditions ("Agreement")
Gentlemen:
To induce you to make loans to the undersigned (herein called "Borrower"),
and in consideration of any loan or loans you, in your sole discretion, may
make to Borrower, Borrower warrants and agrees as follows:
A. Borrower represents and warrants that:
1. EXISTENCE AND RIGHTS. The Borrower is a corporation. Borrower is
duly organized and existing and in good standing under the laws of the State
of Delaware and is authorized and in good standing to do business in the
State of Delaware. Borrower has powers and adequate authority, rights and
franchises to own its property and to carry on its business as now conducted,
and is duly qualified and in good standing in each State in which the
character of the properties owned by it therein or the conduct of its
business makes such qualification necessary, and Borrower has the power and
adequate authority to make and carry out this Agreement Borrower has no
investment in any other business entity, except as previously disclosed to
Bank.
2. AGREEMENT AUTHORIZED. The execution, delivery and performance of
this Agreement are duly authorized and do not require the consent or approval
of any governmental body or other regulatory authority; are not in
contravention of or in conflict with any law or regulation or any term or
provision of Borrower's articles of incorporation, by-laws, or Articles of
Association, as the case may be, and this Agreement is the valid, binding and
legally enforceable obligation of Borrower in accordance with its terms.
3. NO CONFLICT. The execution, delivery and performance of this
Agreement are not in contravention of or in conflict with any agreement,
indenture or undertaking to which Borrower is a party or by which it or any
of its property may be bound or affected, and do not cause any lien, charge
or other encumbrance to be created or imposed upon any such property by
reason thereof.
4. LITIGATION. There is no litigation or other proceeding pending or
threatened against or affecting Borrower, and Borrower is not in default with
respect to any order, writ, injunction, decree or demand of any court or
other governmental or regulatory authority.
5. FINANCIAL CONDITION. The balance sheet of Borrower as of 2/28/98,
and the related profit and loss statement for the 2 month ended on that date,
a copy of which has heretofore been delivered to you by Borrower, and all
other statements and data submitted in writing by Borrower to you in
connection with this request for credit are true and correct, and said
balance sheet and profit and loss statement truly present the financial
condition of Borrower as of the date thereof and the results of the
operations of Borrower for the period covered thereby, and have been prepared
in accordance with generally accepted accounting principles on a basis
consistently maintained subject, however, to year-end audit adjustments.
Since such date there have been no materially adverse changes in the
financial condition or business of Borrower. Borrower has no knowledge of any
liabilities, contingent or otherwise, at such date not reflected in said
balance sheet, and Borrower has not entered into any special commitments or
substantial contracts which are not reflected in said balance sheet, other
than in the ordinary and normal course of its business, which may have a
materially adverse effect upon its financial condition, operations or
business as now conducted.
6. TITLE TO ASSETS. Borrower has good title to its assets, and the
same are not subject to any liens or encumbrances other than those permitted
by Section C.3 hereof.
7. TAX STATUS. Borrower has no liability for any delinquent state,
local or federal taxes, and if Borrower has contracted with any government
agency, Borrower has no liability for renegotiation of profits.
8. TRADEMARKS, PATENTS. Borrower, as of the date hereof, possesses
all necessary trademarks, trade names, copyrights, patents, patent rights,
and licenses to conduct its business as now operated, without any known
conflict with the valid trademarks, trade names, copyrights, patents and
license rights of others.
9. REGULATION U. The proceeds of this loan shall not be used to
purchase or carry margin stock (as defined with Regulation U of the Board of
Governors of the Federal Reserve system).
B. Borrower agrees that so long as it is indebted to you, it will, unless
you shall otherwise consent in writing:
1. RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises
and other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
2. INSURANCE. Maintain public liability, property damage and Insurance
on all its insurable property against fire and other hazards with responsible
insurance carriers to the extent usually maintained by similar businesses.
3. TAXES AND OTHER LIABILITIES. Pay and discharge, before the same
become delinquent and before penalties accrue thereon, all taxes, assessments
and governmental charges upon or against it or any of its properties, and all
its other liabilities at any time existing, except to the extent and so long
as:
(a) The same are being contested in good faith and by appropriate
proceedings in such manners as not to cause any materially adverse effect
upon its financial condition or the loss of any right of redemption from any
sale thereunder, and
(b) it shall have set aside on its books reserves (segregated to the extent
required by generally accepted accounting practice) deemed by it adequate with
respect thereto.
4. RECORDS AND REPORTS. Maintain a standard and modern system of
accounting in accordance with generally accepted accounting principles on a
basis consistently maintained subject, however, to year-end audit
adjustments; permit your representatives to have access to, and to examine
its properties, books and records at all reasonable times; and furnish you:
(a) As soon as available, and in any event within 30 days after the close of
each month of each fiscal year of Borrower, commencing with the month next
ending, a balance sheet, profit and loss statement and reconciliation of
Borrower's capital accounts as of the close of such period and covering
operations for the portion of Borrower's fiscal year ending on the last day
of such period, all in reasonable detail and stating in comparative form the
figures for the corresponding date and period in the previous fiscal year,
prepared in accordance with generally accepted accounting principles on a
basis consistently maintained by Borrower and certified by an appropriate
officer of Borrower, subject, however, to year-end audit adjustments;
(b) As Soon as available, and in any event within 90 days after the close of
each fiscal year of Borrower, a report of audit of Company as of the close of
and for such fiscal year, all in reasonable detail and stating in comparative
form the figures as of the close of and for the previous fiscal year, with
the unqualified opinion of certified public accountants of national
prominence.
(c) Within 30 days after the close of each month of each fiscal year of
Borrower, a certificate by chief financial officer or partner of Borrower,
stating that Borrower has performed and observed each and every covenant
contained in this letter of Inducement including that certain commitment
letter ("Commitment Letter") from Bank to Borrower, dated March 25, 1998, and
executed on behalf of Borrower on April 2, 1998 to be performed by it and
that no event has occurred and no condition then exists which constitutes an
event of default hereunder or would constitute such an event of default upon
the lapse of time or upon the giving of notice and die lapse of time
specified herein, or, if any such event has occurred or any such condition
exists, specifying the nature thereof,
(d) Promptly after the receipt thereof by Borrower, copies of any final
detailed audit reports submitted to Borrower by independent accountants in
connection with each annual or interim audit of the accounts of Borrower made
by such accountants;
(e) Promptly after the same are available, Copies of all such proxy
statements, financial Statements and reports as Borrower shall send to its
stockholders, if any, and copies of all reports which Borrower may file with
the Securities and Exchange Commission or any governmental authority at any
time substituted therefor; and
(f) Such other information relating to the affairs of Borrower as you
reasonably may request from time to time.
(g) Notice of Default. Promptly notify the Bank in writing of the occurrence
of any event of default hereunder known to Borrower and remaining uncured or
any event known to Borrower and remaining uncured which upon notice and lapse
of time would be an event of default.
C. Borrower agrees that so long as it is indebted to you, it will not,
without your written consent:
1. TYPE OF BUSINESS; MANAGEMENT. Unless Bank is notified of such
changes and such changes shall not have a material adverse effect on the
financial condition or business of the Borrower, make any substantial change
in the character of its business; or make any change in its executive
management.
2. OUTSIDE INDEBTEDNESS. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys other than loans from you except obligations
now existing as shown in financial statement dated 2/28/98, excluding those
being refinanced by your bank unless such indebtedness shall not materially
effect Borrower's compliance with the financial Covenants set forth in
Section 8 of the Commitment Letter; or sell or transfer, either with or
without recourse, any accounts or notes receivable or any moneys due to
become due.
3. LIENS AND ENCUMBRANCES. Create, incur, or assume any mortgage,
pledge encumbrance, lien or charge of any kind (including the charge upon
property at any time purchased or acquired under conditional sale or other
title retention agreement) upon any asset now owned or hereafter acquired by
it, other than liens for taxes not delinquent and liens in your favor.
4. LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or
advances to any person or other entity other than in the ordinary and normal
course of its business as now conducted or make any investment in the
securities of any person or other entity except in the ordinary and normal
course of business other than the United States Government; or guarantee or
otherwise become liable upon the obligation of tiny person or other entity,
except by endorsement of negotiable instruments for deposit or collection in
the ordinary and normal course of its business.
5. ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Purchase
or otherwise acquire the assets or business of any person or other entity if
such purchase or acquisition would cause an event of default in the terms of
any other provision of this Agreement, or liquidate, dissolve, merge or
consolidate, or commence any proceedings therefor; or sell any assets except
in the ordinary and normal course of its business as now conducted; or sell,
lease, assign, or transfer any substantial part of its business or fixed
assets, or any property or other assets necessary for the continuance of its
business as now conducted including without limitation the selling of any
property or other asset accompanied by the leasing back of the same.
6. DIVIDENDS, STOCK PAYMENTS. If a corporation, declare or pay any
dividend (other than dividends payable in common stock of Borrower) or make
any other distribution on any of its Capital stock now outstanding or
hereafter issued or purchase, redeem or retire any of such stock unless
distribution shall not affect Borrower's compliance with the financial
covenants set forth in Section 8 of the Commitment Letter.
D. The occurrence of any one of the following events of default shall, at
your option, terminate your commitment to lend and make all sums of principal
and interest then remaining unpaid on all Borrower's indebtedness to you
immediately due and payable, all without demand, presentment or notice, all
of which are hereby expressly waived;
1. FAILURE TO PAY NOTE. Failure to pay any installment of principal or
of interest on any indebtedness of Borrower to you.
2. BREACH OF COVENANT. Failure of Borrower to perform any other term
or condition of this Agreement binding upon Borrower.
3. BREECH OF WARRANTY. Any of Borrower's representations or
warranties made herein or any statement or certificate at any time given in
writing pursuant hereto or in connection herewith shall be false or
misleading in any material respect.
4. INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent;
or admit its inability to pay its debts as they mature; or make an assignment
for the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
5. JUDGMENTS, ATTACHMENTS. Any money judgement, writ or warrant of
attachment, or similar process shall be entered or filed against Borrower or
any of its assets and shall remaIn unvacated unbonded or unstayed for a
period of 10 days or in any event later than five days prior to the date of
any proposed sale thereunder.
6. BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any
law for the relief of debtors shall be instituted by or against Borrower and,
if instituted against it, shall be consented to by Borrower.
E. MISCELLANEOUS PROVISIONS.
1. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part
of your Bank or any holder of Notes issued hereunder, in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise of any such power, right or privilege
preclude other or other exercise thereof or of any other right, power or
privilege. All rights and remedies existing under this agreement or any note
issued in connection with akin that your Bank may make hereunder, are
cumulative to, and not exclusive of; any rights or remedies otherwise
available.
2. The Commitment Letter dated March 25, 1998 attached hereto as may be
amended or replaced, is incorporated herein by this reference for additional
terms and provisions. in the event of a conflict between this Agreement and
the Commitment Letter, the terms in the Commitment Letter shall prevail.
Xxxxxx'x, Inc.
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Title: V.P.-Finance
By: /s/ Xxxxxxx X. Spain
------------------------------------
Title: Chairman & CEO
IMPERIAL BANK
Member FDIC
NOTE
$ 550,000.00 San Jose California, April 2, 1998
On December 29, 2000 and as hereinafter provided, for value received,
the undersigned promises to pay to IMPERIAL BANK ("Bank") a California
banking corporation, or order, at its Santa Xxxxx Valley Regional office, the
principal sum of $550,000.00 or such sums up to the maximum if so stated, as
the Bank may now or hereafter advance to or for the benefit of the
undersigned in accordance with the terms hereof, together with interest from
date of disbursement or N/A, whichever is later, on the unpaid principal
balance / / at the rate of __% per year [X] at the rate of 1.500% per year in
excess of the rate of interest which Bank has announced as its prime lending
rate (the "Prime Rate"), which shall vary concurrently with any change in
such Prime Rate, or $ N/A , whichever is greater. Interest shall be computed
at the above rate on the basis of the actual number of days during which the
principal balance is outstanding, divided by 360, which shall for interest
computation purposes, be considered one year.
Interest shall be payable /X/ monthly / / quarterly / / included with
principal /X/ in addition to principal / / beginning May 2, 1998, and if not
so paid shall become a part of the principal. All payments shall be applied
first to any late charges owing, then to interest and the remainder, if any,
to principal. /X/ (If checked), Principal shall be payable in installments of
$ * or more, each installment on the 2nd day of each month, beginning
advances not to exceed any unpaid balance owing at any one time equal to the
maximum amount specified above, may be made at the option of Bank.
Initial Here: LA PS
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal
or interest when due, or in the performance or observance, when due, of any
item, covenant or condition of any deed of trust, security agreement or other
agreement (Including amendments or extensions thereof) securing or pertaining
to this note, at the option of the holder hereof and without notice or
demand, the entire balance of principal and accrued Interest then remaining
unpaid shall (a) become immediately due and payable, and (b) thereafter bear
interest, until paid in full, at the increased rate of 5% per year in excess
of the rate provided for above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the
maker(s) to pay principal or interest when due; the filing as to each person
obligated hereon, whether as maker, co-maker, endorser or guarantor
(individually or collectively referred to as the "Obligor") of a voluntary or
involuntary petition under the provisions of the Federal Bankruptcy Act; the
issuance of any attachment or execution against any asset of any Obligor; the
death of any Obligor; or any deterioration of the financial condition of any
Obligor which results in the holder hereof considering itself, in good faith,
insecure.
If any installment payment, interest payment, principal payment or
principal balance payment due hereunder is delinquent ten or more days,
Obligor agrees to pay Bank a late charge in the amount of 5% of the payment
so due and unpaid, in addition to the payment; but nothing in this paragraph
is to be construed as any obligation on the part of the holder of this note
to accept payment of any payment past due or less than the total unpaid
principal balance after maturity.
If this note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorneys fees incurred by
the holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Each Obligor
shall be jointly and severally liable hereon and consents to renewals,
replacements and extensions of time for payment hereof, before, at, or after
maturity; consents to the acceptance, release or substitution of security for
this note; and waives demand and protest and the right to assert any statute
of limitations. Any married person who signs this note agrees that recourse
may be had against separate property for any obligations hereunder. The
indebtedness evidenced hereby shall be payable in lawful money of the United
States. In any action brought under or arising out of this note, each
Obligor, including successor(s) or assign(s) hereby consents to the
application of California law, to the jurisdiction of any competent court
within the State of California, and to service of process by any means
authorized by California law.
No single or partial exercise of any power hereunder, or under any deed
of trust, security agreement or other agreement in connection herewith shall
preclude other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of the holder
hereof in exercising any right hereunder, or under any deed of trust,
security agreement or other agreement, shall not operate as a waiver of such
right, or of any other right, under this note or any deed of trust, security
agreement or other agreement in connection herewith.
Initial Here: LA PS
* See attached Addendum. A default under any obligation of the undersigned to
Bank shall be a default hereunder, Subject to provisions in Credit Terms
and Conditions dated April 2, 1998, and all amendments thereto and
replacements therefor.
Notwithstanding anything to the
contrary, Borrower shall have ten days Xxxxxx'x Inc.
following notice to make any payment By: /s/ Xxxx Xxxxxxxx
prior to such failure being a default --------------------------
hereunder but shall nevertheless apply By: /s/ Xxxxxxx Xxxxx
the late charge above to such late --------------------------
payments.
ADDENDUM TO NOTE
DATED APRIL 2, 1998
Advances under the Note shall be available through December 31, 1998
("revolving draw period"). During the revolving draw period, interest only on
each advance shall be due monthly beginning May 2, 1998 until the end of each
fiscal quarter. At the end of each fiscal quarter commencing with the quarter
ending July 31, 1998) the outstanding principal balance of the advances made
during each quarter under the Note shall be payable monthly in 24 equal
payments of principal plus accrued interest based on an amortization of 24
months. All principal and accrued interest shall in any event be due and
payable on or before December 29, 2000.
If a dispute arises out of or relates to this contract, or the breach
thereof, and if said dispute cannot be settled through direct discussions,
the parties agree to first endeavor to settle the dispute in an amicable
manner by mediation administered by the American Arbitration Association
under its Commercial Mediation Rules, before resorting to arbitration.
Thereafter, any unresolved controversy or claim arising out of or relating to
this contract, or breach thereof, shall be settled and finally determined by
one arbitrator in DALLAS County, Texas, in accordance with the arbitration
rules of JAMS/Endispute and judgment by the arbitrator may be entered into
any court having jurisdiction thereof Any decision rendered by the arbitrator
will be binding. The parties hereto expressly reserve the right to contest or
appeal from the final judgment or any appealable order or appeal able
judgment entered AS A RESULT OF A DECISION by the arbitrator.
XXXXXX'X, INC.
BY: /s/ Xxxx Xxxxxxxx
-------------------------------------
BY: /s/ Xxxxxxx Xxxxx
-------------------------------------
IMPERIAL BANK
Member FDIC
NOTE
$200,000.00 * San Jose, California, June 17, 1997
On January 12, 2000, and as hereinafter provided, for value received,
the undersigned promises to pay to IMPERIAL BANK ("Bank"), a California
banking corporation, or order, at its Santa Xxxxx Valley Regional office the
principal sum of$200,000.00 * or such sums up to the maximum if so stated as
the Bank may now or hereafter advance to or for the benefit of the
undersigned in accordance with the terms hereof, together with interest from
date of disbursement or N/A, whichever is later, on the unpaid principal
balance / / at the rate of __% per year /X/ at the rate of 1.500% per year in
excess of the rate of interest which Bank has announced as its prime lending
rate (the "Prime Rate"), which shall vary concurrently with any change in
such Prime Rate, __________ whichever is greater. Interest shall be computed at
the above rate on the basis of the actual number of days during which the
principal balance is outstanding, divided by 360, which shall, for interest
computation purposes, be considered one year.
Initial Here: LA PS
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal
or interest when due, or in the performance or observance, when due, of any
item, covenant or condition of any deed of trust, security agreement or other
agreement (including amendment, or extensions thereof) securing or pertaining
to this note, at the option of the holder hereof and without notice or
demand, the entire balance of principal and accrued interest then remaining
unpaid shall (a) become immediately due and payable, and (b) thereafter bear
interest, until paid in full, at the increased rate of 5% per year in excess
of the rate provided for above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the
maker(s) to pay principal or interest when due; the filing as to each person
obligated hereon, whether as maker, co-maker, endorser or guarantor
(individually or collectively referred to as the "Obligor") of a voluntary or
involuntary petition under the provisions of the Federal Bankruptcy Act; the
issuance of any attachment or execution against any asset of any Obligor; the
death of any Obligor; or any deterioration of the financial condition of any
Obligor which results in the holder hereof considering itself, in good faith,
insecure.
/XX/ If any installment payment or principal balance payment due hereunder is
delinquent ten or more days, Obligor agrees to pay a late charge in the
amount of 5% of the payment so due and unpaid, in addition to the payment;
but nothing in this paragraph is to be construed as any obligation on the
part of the holder of this note to accept payment of any installment past due
or less than the total unpaid principal balance after maturity.
If this note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorney's fees incurred by
the holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Each Obligor
shall be jointly and severally liable hereon and consents to renewals,
replacements and extensions of time for payment hereof, before, at, or after
maturity; consents to the acceptance, release or substitution of security for
this note; and waves demand and protest and the right to assert any statute
of limitations. Any married person who signs this note agrees that recourse
may be had against separate property for any obligations hereunder. The
Indebtedness evidenced hereby shall be payable in lawful money of the United
States. In any action brought under or arising out of this note, each
Obligor, including successor(s) or assign(s) hereby consents to the
application of California law, to the jurisdiction of any competent Court
within the State of California, and to service of process by any means
authorized by California law.
No single or partial exercise of any power hereunder, or under any deed
of trust, Security agreement or other agreement in connection herewith shall
preclude other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of the holder
hereof in exercising any right hereunder, or under any deed of trust,
security agreement or other agreement, shall not operate as a waiver of such
right, or of any other right, under this note or any deed of trust, security
agreement or other agreement in connection herewith.
Initial Here: LA PS
* See Addendum attached hereto and incorporated herein this reference.
Notwithstanding anything to the contrary, Borrower shall have ten
days following notice to make any payment prior to such failure
being a default hereunder but shall never-the-less apply to such
late payments.
Xxxxxx'x, Inc.
By: /s/ Xxxx Xxxxxxxx
-----------------------------
[ILLEGIBLE] By: /s/ Xxxxxxx Xxxxx
----------------------------- -----------------------------
ADDENDUM TO NOTE
DATED JUNE 17, 1997
Disbursements under the Note shall be available through December 12, 1997.
The undersigned shall make monthly payments of interest only to Bank, in
arrears, commencing on July 12, 1997 and thereafter on the twelfth (12th) day
of each calendar month through and including December 12, 1997 on which date
the outstanding balance of the Note shall be converted to an amortizing loan
payable in 24 equal monthly payments of principal, together with accrued
interest commencing January 12, 1998, and thereafter on the twelfth (12th)
day of each calendar month until January 12, 2000, on which date all
principal and accrued but unpaid interest under the Note shall be due and
payable in full.
As hereinafter set forth, in any action brought under, in connection with or
arising out of this Note, each Obligor, including successor(s) or assign(s)
consents, to the, application of California law (other than provisions on
conflicts of law), to the jurisdiction of any competent court within the
State of California and to service of process by any means authorized by
California law.
XXXXXX'X, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
By: /s/ Xxxxxxx Xxxxx
--------------------------------- Initial Here: LA PS
IMPERIAL BANK
Member FDIC
SECURITY AND LOAN AGREEMENT
(ACCOUNTS RECEIVABLE)
This Agreement is entered into between Xxxxxx'x, Inc. a Delaware Corporation
(herein called "Borrower") and IMPERIAL BANK (herein called "Bank").
1. Bank hereby commits, subject to all the terms and conditions of this
Agreement and prior to the termination of its commitment as hereinafter
provided, to make loans to Borrower from time to time in such amounts as
may be determined by Bank up to, but not exceeding in the aggregate
unpaid principal balance, the following Borrowing Base:
80.00% of Eligible Accounts
and in no event more than $ 150,000.00
2. The amount of each loan made by Bank to Borrower hereunder shall be
debited to the loan ledger account of Borrower maintained by Bank
(herein called "Loan Account") and Bank shall credit the Loan Account
with all loan repayments made by Borrower. Borrower promises to pay Bank
(a) the unpaid balance of Borrower's Loan Account on demand and (b) on
or before the tenth day of each month, interest on the average daily
unpaid balance of the Loan Account during the immediately preceding month
at the rate of One & 250/100ths percent (1.250%) per annum in excess of
the rate of interest which Bank has announced as its prime lending rate
("Prime Rate") which shall vary concurrently with any change in such
Prime Rate. Interest shall be computed at the above rate on the basis
of the actual number of days during which the principal balance of the
loan account is outstanding divided by 360, which shall for interest
computation purposes be considered one year. Bank at its option may
demand payment of any or all of the amount due under the Loan Amount
including accrued but unpaid interest at any time. Such notice may be
given verbally or in writing and should be effective upon receipt by
Borrower. The amount of interest payable each month by Borrower shall not
be less than a minimum monthly charge of $0.00. Bank is hereby
authorized to charge Borrower's deposit account(s) with Bank for all
sums due Bank under this Agreement.
3. Requests for loans hereunder shall be in writing duly executed by Borrower
in a form satisfactory to Bank and shall contain a certification setting
forth the matters referred to in Section 1, which shall disclose that
Borrower's entitled to the amount of loan being requested.
4. As used in this Agreement, the following terms shall have the following
meanings:
A. "Accounts" means any right to payment for goods sold or leased, or to
be sold or to be leased, or for services rendered or to be rendered no
matter how evidenced, including accounts receivable, contract rights,
chattel paper, instruments, purchase orders, notes, drafts,
acceptances, general intangibles and other forms of obligations and
receivables.
B. "Collateral means any and all personal property of Borrower which is
assigned or hereafter is assigned to Bank as security or in which Bank
now has or hereafter acquires a security interest.
C. "Eligible Accounts" means all of Borrower's Accounts excluding,
however, (1) all Accounts under which payment is not received within
90 days from any invoice date, (2) all Accounts against which the
account debtor or any other person obligated to make payment thereon
asserts any defense, offset, counterclaim or other right to avoid or
reduce the liability represented by the Account and (3) any Accounts
if the account debtor or any other person liable in connection
therewith is insolvent, subject to bankruptcy or receivership
proceedings or has made an assignment for the benefit of creditors or
whose credit standing is unacceptable to Bank and Bank has so notified
Borrower, Eligible Accounts shall only include such accounts as Bank
in its sole discretion shall determine are eligible from time to time.
5. Borrower hereby assigns to Bank all Borrower's present and future Accounts,
including all proceeds due thereunder, all guaranties and security
therefor, and, hereby grants to Bank a continuing security interest in all
moneys in the Collateral Account referred to in Section 6 hereof, as
security for any and all obligations of Borrower to Bank, whether now owing
or hereafter incurred and whether direct, indirect, absolute or contingent.
So long as Borrower is indebted to Bank or Bank is committed to extend
credit to Borrower, Borrower will execute and deliver to Bank such
assignments, including Bank's standard forms of Specific or General
Assignment covering individual Accounts, notices, financing statements, and
other documents and papers as Bank may require in order to affirm,
effectuate or further assure the assignment to Bank of the Collateral or to
give any third party, including the account debtors obligated on the
Accounts, notice of Bank's interest in the Collateral.
Initial Here: LA PS
6. Unless Bank exercises its rights to collect the Accounts pursuant to
paragraph 10, Borrower will collect with diligence all Borrower's
Accounts. Any collection of Accounts by Borrower, whether in the
form of cash, checks, notes, or other instruments for the payment of
money (properly endorsed or assigned where required to enable Bank to
collect same), shall be in trust for Bank and Borrower shall deliver
said collections daily to Bank. The proceeds of such collections when
received by Bank may be applied by Bank directly to the payment of
Borrower's Loan Account or any other obligation secured hereby. Any
credit given by Bank upon receipt of said proceeds shall be conditional
credit subject to collection. Returned items at Bank's option may be
charged to Borrower's general account. All collections of the Accounts
shall be set forth on an itemized schedule, showing the name of the
account debtor, the amount of each payment and such other information as
Bank may request. * after default.
Initial Here: LA PS
7. Unless Bank exercises its rights to collect the Accounts pursuant to
paragraph 10, Borrower may continue its present policies with respect to
returned merchandise and adjustments.
8. Borrower represents and warrants to Bank: (i) If Borrower is a
corporation, that Borrower is duly organized and existing in the State
of its incorporation and the execution, delivery and performance hereof
are within Borrower's corporate powers, have been duly authorized and are
not in conflict with law or the terms of any charter, by-law or other
Incorporation papers, or of any indenture, agreement or undertaking to
which Borrower is a party or by which Borrower is found or affected, (ii)
Borrower is, or at the time the collateral becomes subject to Bank's
security interest will be, the true and lawful owner of and has, or at
the time the Collateral becomes subject to Bank's security interest will
have, good and clear title to the Collateral, subject only to Bank's
rights therein, (iii) Each Account is, or at the time the Account comes
into existence will be, a true and correct statement of a bona fide
indebtedness incurred by the debtor named therein in the amount of the
Account for either merchandise sold or delivered (or being held subject
to Borrower's delivery instructions) to, or services rendered, performed
and accepted by, the account debtor, (iv) and (v) any and all financial
information, including information relating to the Collateral, submitted
by Borrower to Bank, whether previously or in the future, is or will
be true and correct.
Initial Here: LA PS
Page 1 of 2
9. Borrower will: (i) furnish Bank from time to time such financial
statements and information Bank may reasonably request and inform Bank
immediately upon the occurrence of a material adverse change therein;
(ii) Furnish Bank periodically, in such form and detail and at such
times as Bank may require, statements showing aging and reconciliation
of the Accounts and collections thereon; (iii) Permit representatives of
Bank to inspect the Borrower's books and records relating to the
Collateral and make extracts therefrom at any reasonable time and to
arrange for verification of the Accounts, under reasonable procedures,
acceptable to Bank, directly with the account debtors or otherwise at
Borrower's expense; (iv) Promptly notify Bank of any attachment or other
legal process levied against any of the Collateral and any information
received by Borrower relative to the Collateral, including the Accounts,
the account debtors or other persons obligated in connection therewith,
which may in any way affect the value of the Collateral or the rights
and remedies of Bank in respect thereto; (v) Reimburse Bank upon demand
(or any and all legal costs, including reasonable attorneys' fees, and
other expense incurred in collecting any sums payable by Borrower under
Borrower's Loan Account or any other obligation secured hereby,
enforcing any term or provision of this Security Agreement or otherwise
or in the checking, handling and collection of the Collateral and the
preparation and enforcement of any agreement relating thereto; (vi)
Notify Bank of each location and or each office of Borrower at which
records of Borrower relating to the Accounts are kept: (vii) Provide,
maintain and deliver to Bank policies insuring the Collateral against
loss or damage by such risks and in such amounts, forms and companies as
Bank may require and with loss payable to Bank, and, in the event Bank
takes possession of the Collateral, the Insurance policy or policies and
any unearned or returned premium thereon shall at the option of Bank,
become the sole property of Bank, such policies and the proceeds of any
other insurance covering or in any way relating to the Collateral,
whether now in existence or hereafter obtained, being hereby assigned to
Bank; (viii) In the event the unpaid balance of Borrower's Loan Account
shall exceed the maximum amount of outstanding loans to which Borrower
is entitled under Section 1 hereof, Borrower shall immediately pay to
Bank, from its own funds and not from the proceeds of Collateral, for
credit to Borrower's Loan Account the amount of such excess.
Initial Here: LA PS
10. Upon default Bank may at any time, without prior notice to Borrower,
collect the Accounts and may give notice of assignment to any and all
account debtors, and Borrower does hereby make, constitute appoint Bank
its irrevocable, true and lawful attorney with power to receive, open and
dispose of all mail addressed to Borrower, to endorse the name of Borrower
upon any checks or other evidences, of payment that may come into the
possession of Bank upon the Accounts to endorse the name of the
undersigned upon any document or instrument relating to the Collateral;
in its name or otherwise, to demand, xxx for, collect and give
acquittances for any and all moneys due or to become due upon the
Accounts; to compromise, prosecute or defend any action, claim or
proceeding with respect thereto; and to do any and all things necessary
and proper to carry out the purpose herein contemplated.
11. Until Borrower's Loan Account and all other obligations secured hereby
shall have been repaid in full, Borrower shall not sell, dispose of or
grant a security interest in any of the Collateral other than to Bank, or
execute any financing statements covering the Collateral in favor of any
secured party or person other than Bank.
Initial Here: LA PS
12. Should: (i) Default be made in the payment of any obligation, or breach be
made in any warranty, statement, promise, term or condition, contained
herein or hereby secured; (ii) Any statement or representation made for the
purpose of obtaining credit hereunder prove false; (iv) Borrower become
insolvent or make an assignment for the benefit of creditors; or (v) Any
proceeding be commenced by or against Borrower under any bankruptcy,
reorganization, arrangement, readjustment of debt or moratorium law or
statute; then in any such event, Bank may, at its option and without demand
first made and without notice to Borrower, do any one or more of the
following: (a) Terminate its obligation to make loans to Borrower as
provided in Section 1 hereof; (b) Declare all sums secured hereby due and
payable; (c) Immediately take possession of the Collateral wherever it may
be found, using all necessary force to do, or require Borrower to assemble
the Collateral and make it available to Bank at a place designated by Bank
which is reasonably convenient to Borrower and Bank, and Borrower waives
all claims for damages due to or arising from or connected with any such
taking; (d) Proceed in the foreclosure of Bank's security interest and sale
of the Collateral in any manner permitted by law, or provided for herein,
(e) Sell, lease or otherwise dispose of the Collateral at public or private
sale, with or without having the Collateral at the place of sale, and upon
terms and in such manner as Bank may determine, and Bank may purchase same
at any such sale; (f) Retain the Collateral in full satisfaction of the
obligations secured thereby; (g) Exercise any remedies of a secured party
under the Uniform Commercial Code. Prior to any such disposition, Bank may,
at as option, cause any of the Collateral to be repaired or reconditioned
in such manner and to such extent as Bank may deem advisable, and any sums
expended therefor by Bank shall be repaid by Borrower and secured hereby.
Bank shall have the right to enforce one or more remedies hereunder
successively or concurrently, and any such action shall not estop or
prevent Bank from pursuing any further remedy which it may have hereunder
or by law. If a sufficient sum is not realized from any such Disposition of
Collateral to pay all obligations secured by this Security Agreement,
Borrower hereby promises and to pay Bank deficiency.
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13. If any writ of attachment, garnishment, execution or other legal process
be issued against any property of Borrower, or any assessment for taxes
against Borrower, other than real property, is made by the Federal or
State government or any department thereof, the obligation of Bank to
make loans to Borrower as provided in Section 1 hereof shall immediately
terminate and the unpaid balance of the Loan Account, all other
obligations secured hereby and all other sums do hereunder shall
immediately become due and payable without demand, presentment at Bank's
option upon notice.
14. Borrower authorizes Bank to destroy all invoices, delivery receipts,
reports and other types of documents and records submitted to Bank in
connection with the transactions contemplated herein at any time
subsequent to four months from the time such items are delivered to Bank.
15. Nothing herein shall in any way limit the effect of the conditions set
forth in any other security or other agreement executed by Borrower, but
each and every condition hereof shall be in addition thereto.
16. Additional Provisions. (a) Subject to conditions and limitations contained
in the Credit Terms & Conditions dated Xxxxx 0, 0000, (x) If any
installment payment, interest payment, principal payment or principal
balance, due hereunder is delinquent ten or more days, Obligor agrees to
pay Bank a late charge in the amount or 5% of the payment so due and
unpaid, in addition to the payment; but nothing in this paragraph to be
construed as any obligation on the part of the holder of this note to
accept payment of any payment past due or less than the total unpaid
principal after maturity. All payments shall be applied first to any late
charges owing, then to interest and the remainder, if any, to principal.
Initial Here: LA PS
Executed this 2nd day of April, 1998
Xxxxxx'x, Inc.
----------------------------------
(Name of Borrower)
IMPERIAL BANK BY: /s/ Xxxxxxx X. Spain
------------------------------
(Authorized Signature and Title)
Xxxxxxx X. Spain,
Chairman/CEO/Secretary
BY: /s/ Xxxxxxx X. Ghozl BY: /s/ Xxxx Xxxxxxxx
----------------------------- --------------------------------
Xxxxxxx X. Ghozl, Title (Authorized Signature and Title)
SVP and Manager Xxxx Xxxxxxxx, V.P. Finance
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* If none, insert "None"
(c) Notwithstanding anything to the contrary, Borrower shall have ten days
following notice to make any payment prior to such failure being a default
hereunder, but (b) shall nevertheless apply to such late payments.
(d) A default under any obligation of the undersigned to Bank shall be a
default hereunder.
Initial Here: LA PS
Page 2 of 2
IMPERIAL BANK
Member FDIC
GENERAL SECURITY AGREEMENT
(Tangible and Intangible Personal Property)
This Agreement is executed on July 12, 1996, by Xxxxxx'x Inc., formerly known
as THE REFERENCE PRESS, INC. (hereinafter called "Obligor"). In consideration
of financial accommodations given, to be given or continued, the Obligor
grants to IMPERIAL BANK (hereinafter called "Bank") a security interest in
(a) all property (i) delivered to Bank by Obligor, (ii) which shall be in
Bank's possession or control in any matter or for any purpose, (iii)
described below, (iv) now owned or hereafter acquired by Obligor of the type
or class described below and/or in any supplementary schedule hereto, or in
any financing statement filed by Bank and executed by or on behalf of
Obligor; (b) the proceeds, increase and products of such property all
accessions thereto, and all property which Obligor may receive on account of
such collateral which Obligor will immediately deliver to Bank (collectively
referred to as "Collateral") to secure payment and performance of all of
Obligor's present or future debts or obligations to Bank, whether absolute or
contingent (hereafter referred to as "Debt"). Unless otherwise defined,
words used herein have the meanings given them in the California Uniform
Commercial Code.
Collateral:
A. VEHICLE, VESSEL, AIRCRAFT:
Identification License or
Year Make/Manufacturer Model and Serial No. Registration No. New or Used
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Engine or other equipment:
--------------------------------------------------------------------
(FOR AIRCRAFT - ORIGINAL INK SIGNATURE ON COPY TO FAA)
B. DEPOSIT ACCOUNTS:
Type Account Number Amount $
----------------------- -------------------- -------------------
In name of Depository
--------------------------------------- --------------------------------
AND ALL EXTENSIONS OR RENEWALS THEREOF.
C. ACCOUNTS, INTANGIBLES AND OTHER: (DESCRIBE)
All personal property, whether presently existing or hereafter
created or acquired, including but not limited to: All accounts,
chattel paper, documents, instruments, money, deposit accounts and
general intangibles including returns, repossessions, books and
records relating thereto, and equipment containing said books and
records. All good including equipment and inventory. All proceeds
including, without limitation, insurance proceeds. All guarantees
and other security therefor.
The collateral not in Bank's possession will be located at: 0000
Xx Xxxxxx Xx., Xxx. 000, Xxxxxx, XX 00000
/ / If checked, the Obligor is executing this Agreement as an Accommodation
Debtor only and the Obligor's liability is limited to the security interest
granted in the Collateral described herein. The party being accommodated is
("Borrower").
All the terms and provisions on the reverse side hereof are incorporated herein
as though set forth in full, and constitute a part of this Agreement.
Signature
Name (indicate title, If applicable) Address
Xxxxxx'x, Inc. formerly known as BY /s/ Xxxx Xxxxxxxx 0000 Xx Xxxxxx Xx.
-------------------------------- -------------------------------- -------------------
THE REFERENCE PRESS INC. BY /s/ Xxxxxxx X. Spain Ste. 250 Austin, TX
-------------------------------- -------------------------------- -------------------
78752
-------------------------------- -------------------------------- -------------------
Page 1 of 2
SECURITY AGREEMENT (CONTINUED)
Obligor represents, warrants and agrees:
1. Obligor will immediately pay (a) any Debt when due, (b) Banks costs of
collecting the Debt, of protecting, insuring or realizing on Collateral,
and any expenditure of Bank pursuant hereto, including attorneys' fees and
expenses, with interest at the rate of 24% per year, or the rate applicable
to the Debt, which ever is less, from the date of expenditure, and (c) any
deficiency after realization of Collateral.
2. Obligor will use the proceeds of any loan that becomes Debt hereunder
for the purpose indicated on the application therefore, and will promptly
contract to purchase and pay the purchase price of any property which becomes
Collateral hereunder from the proceeds of any loan made for that purpose.
3. As to all Collateral in Obligor's possession (unless specifically otherwise
agreed to by Bank in writing), Obligor will:
(a) Have, or has, possession of the Collateral at the location disclosed
to Bank and will not remove the Collateral from the location.
(b) Keep the Collateral separate and identifiable.
(c) Maintain the Collateral in good and saleable condition, repair it if
necessary, clean, feed, shelter, water, medicate, fertilize,
cultivate, irrigate, prune and otherwise deal with the Collateral in
all such ways as are considered good practice by owners of like
property, use it lawfully and only as permitted by Insurance policies,
and permit Bank to inspect the Collateral at any reasonable time.
(d) Not sell, contract to sell, lease, encumber or transfer the Collateral
(other than Inventory Collateral) until the Debt has been paid, even
though Bank has a security interest in proceeds of such Collateral.
4. As to Collateral which is inventory and accounts, Obligor:
(a) May until notice from Bank, sell, lease or otherwise dispose of
inventory Collateral in the ordinary course of business only, and
collect the cash proceeds thereof.
(b) Will, upon notice from Bank, deposit all cash proceeds as received in
a demand deposit account with Bank, containing only such proceeds and
deliver statements identifying units of inventory disposed of,
accounts which gave rise to proceeds, and all acquisitions and returns
of inventory as required by Bank.
(c) Will receive in trust, schedule on forms satisfactory to the Bank and
deliver to Bank all non-cash proceeds other than Inventory received in
trade.
(d) If not in default, may obtain release of Bank's interest in individual
units of inventory upon request, therefore, payment to Bank of the
release price of such units shown on any Collateral schedule
supplementary hereto, and compliance herewith as to proceeds thereof.
5. As to Collateral which are accounts, chattel paper, general intangibles and
proceeds described in 4(c) above, Obligor warrants, represents and agrees:
(a) All such Collateral is genuine, enforceable in accordance with its
terms, free from default, prepayment, defense and conditions precedent
(except as disclosed to Bank in writing), and is supported by invoices
to, or rights against, the debtors thereon. Obligor will supply Bank
with duplicate invoices or other evidence of Obligor's rights on
Bank's request;
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(b) All persons appearing to be obligated on such Collateral have
authority and capacity to contract;
(c) All chattel paper is in compliance with law as to form, content and
manner of preparation and execution and has been properly registered,
recorded, and/or filed to protect Obligor's interest thereunder;
(d) If an account debtor shall also be indebted to Obligor on another
obligation, any payment made by him not specifically designated to be
applied on any particular obligation shall be considered to be a
payment on the account in which Bank has a security interest. Should
any remittance include a payment not on an account, it shall be
delivered to Bank and, if no event of default has occurred, Bank shall
pay Obligor the amount of such payment;
(e) Obligor agrees not to compromise, settle or adjust any account or
renew or extend the time of payment thereof without appropriate
disclosure to Bank.
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6. Obligor owns all Collateral absolutely, and no other person has or claims
any interest in any Collateral, except as disclosed to and accepted by Bank
in writing. Obligor will defend any proceeding which may affect title to or
Bank's security interest in any Collateral, and will indemnify and hold
Bank free and harmless from all costs and expenses of Bank's defense.
7. Obligor will pay when due all existing or future charges, liens or
encumbrances on and all taxes and assessments now or hereafter imposed on
or affecting the Collateral and, if the Collateral is in Obligor's
possession, the realty on which the Collateral is located.
8. Obligor will insure the Collateral with Bank as loss payee in form and
amounts with companies, and against risks and liability satisfactory to
Bank, and hereby assigns such policies to Bank, agrees to deliver them to
Bank at Bank's request, and authorizes Bank to make any claim thereunder,
to cancel the insurance on Obligor's default, and to receive payment of and
endorse any instrument in payment of any loss or return premium. If Obligor
should fail to deliver the required policy or policies to the Bank, Bank
may, at Obligor's cost and expense, without any duty to do so, get and pay
for insurance naming as the insured, at Bank's option, either both Obligor
and Bank, or only Bank, and the cost thereof shall be secured by this
Security Agreement, and shall be repayable as provided in Paragraph 1
above.
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9. Obligor will give Bank any information it reasonably requires. All
information at any time supplied to Bank by Obligor (including, but not
limited to, the value and condition of Collateral, financial statements,
financing statements, and statements made in documentary Collateral) is
correct and complete, and Obligor will notify Bank of any adverse change
in such information. Obligor will promptly notify Bank of any change of
Obligor's residence, chief executive office or mailing address.
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10. Upon Default Bank is irrevocably appointed Obligor's attorney-in-fact to do
any act which Obligor is obligated hereby to do, to exercise such rights as
Obligor may exercise, to use such equipment as Obligor might use, to enter
Obligor's premises to give notice of Bank's security interest, and to
collect Collateral and proceeds and to execute and file in Obligor's name
any financing statements and amendments thereto required to perfect Bank's
security interest hereunder, all to protect and preserve the Collateral and
Bank's rights hereunder. Bank may:
(a) Endorse, collect and receive delivery or payment of instruments and
documents constituting Collateral;
(b) Make extension agreements with respect to or affecting Collateral,
exchange it for other Collateral, release persons liable thereon or
take security for the payment thereof, and compromise disputes in
connection therewith;
(c) Use or operate Collateral for the purpose of preserving Collateral or
its value and for preserving or liquidating Collateral.
11. If more than one Obligor signs this Agreement, their liability is joint and
several. Any Obligor who is married agrees that recourse may be had
against separate property for the Debt. Discharge of any Obligor except for
full payment, or any extension, forbearance, change of rate of interest, or
acceptance, release or substitution of Collateral or any impairment or
suspension of Bank's rights against an Obligor or any transfer of an
Obligor's interest to another shall not affect the liability of any other
Obligor. Until the Debt shall have been paid or performed in full, Bank's
rights shall continue even if the Debt is outlawed. All Obligors waive: (a)
any right to require Bank to proceed against any Obligor before any other,
or to pursue any other remedy; (b) presentment, protest and notice of
protest, demand and notice of nonpayment, demand or performance, notice of
sale, and advertisement of sale; (c) any right to the benefit of or to
direct the application of any Collateral until the Debt shall have been
paid; (d) and any right of subrogation to Bank until Debt shall have been
paid or performed in full.
12. Upon default, at Bank's option, without demand or notice, all or any part
of the Debt shall immediately become due. Bank shall have all rights given
by law, and may sell, in one or more sales, Collateral in any county where
Bank has an office, Bank may purchase at such sale. Sales for cash or on
credit to a wholesaler, retailer or user of the Collateral, or at public or
private auction, are all to be considered commercially reasonable. Bank may
require Obligor to assemble the Collateral and make it available to Bank at
the entrance to the location of the Collateral, or a place designated by
Bank.
Defaults subject to section 16(c) of the Capital Security and Loan
Agreement shall include.
Initial here: LA
(a) Obligor's failure to pay or perform this or any agreement with Bank or
breach of any warranty herein, or Borrower's failure to pay or perform
any agreement with Bank.
(b) Any change in Obligor's or Borrower's financial condition which in
Bank's judgement impairs the prospect Borrower's payment or
performance.
(c) Any actual or reasonably anticipated deterioration of the Collateral
or in the market price thereof which causes it, in Bank's judgement,
to become unsatisfactory as security.
(d) Any levy or seizure against Borrower or any of the Collateral.
(e) Termination of business, assignment for creditors, insolvency,
appointment of receiver, or the filing of any petition under
bankruptcy or debtor's relief laws of, by or against Obligor or
Borrower or any guarantor of the Debt.
(f) Any warranty or representation which is false.
13. Bank's acceptance of partial or delinquent payments or the failure of Bank
to exercise any right or remedy shall not waive any obligation of Obligor
or Borrower or right of Bank to modify this Agreement, or waive any other
similar default.
14. On transfer of all or any part of the Debt, Bank may transfer all or any
part of the Collateral. Bank may deliver all or any part of the Collateral
to any Obligor at any time. Any such transfer or delivery shall discharge
Bank from all liability and responsibility with respect to such Collateral
transferred or delivered. This Agreement benefits Bank's successors and
assigns and binds Obligor's heirs, legatees, personal representatives,
successors and assigns. Obligor agrees not to assert against any assignee
of Bank any claim or defense that may exist against Bank. Time is of the
essence. This Agreement and supplementary schedules hereto contain the
entire security agreement between Bank and Obligor. Obligor will execute
any additional agreements, assignments or documents reasonably required by
Bank to carry this Agreement into effect.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of California. All words used herein in the singular
shall be considered to have been used in the plural where the context and
construction so require.
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