AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
This Amendment to Loan and Security Agreement is entered into as of
February 15, 2001 (the "Amendment"), by and between BANK SINOPAC, LOS ANGELES
BRANCH and FAR EAST NATIONAL BANK (individually, a "Lender" and collectively,
the "Lenders") end INTEGRATED PACKAGING ASSEMBLY CORPORATION, a Delaware
corporation, and OSE, INC., a California corporation (individually a "Borrower"
and collectively, the "Borrowers").
RECITALS
Borrowers and Lenders are parties to that certain Amended and Restated Loan
and Security Agreement dated as of December 1, 2000, as amended (the
"Agreement"). The parties desire to amend the Agreement in accordance with the
terms of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. The following definitions are hereby added or shall replace existing
definitions in Section 1.1 of the Agreement as follows:
"Borrowing Base" means an amount equal to eighty percent (80%) of
Eligible Accounts, as determined by Servicing Agent with reference to the most
recent Borrowing Base Certificates delivered by Borrowers.
"Eligible Accounts" means those Accounts that arise in the ordinary
course of a Borrower's business that comply with all of such Borrower's
representations and warranties to Lenders set forth in Section 5.4; provided,
that standards of eligibility may be fixed and revised from time to time by
Lenders as a consequence of any Collateral audits done pursuant to Section 6.3
in Lender's reasonable judgment and upon notification thereof to Borrowers in
accordance with the provisions hereof. Unless otherwise agreed to by Lenders,
Eligible Accounts shall not include the following:
(a) Accounts that the account debtor has failed to pay within ninety
(90) days of invoice date;
(b) Accounts with respect to which the account debtor is an officer,
employee, or agent of Borrower;
(c) Accounts with respect to which goods are placed on consignment,
guaranteed sale, sale or return, sale on approval, xxxx and hold, or other terms
by reason of which the payment by the account debtor may be conditional;
(d) Accounts with respect to which the account debtor is an Affiliate
of Borrower;
(e) Accounts with respect to which the account debtor disputes
liability or makes any claim with respect thereto as to which Servicing Agent
believes, in its sole discretion, that there may be a basis for dispute (but
only to the extent of the amount subject to such dispute or claim), or is
subject to any Insolvency Proceeding, or becomes insolvent, or goes out of
business; and
(f) Accounts the collection of which Servicing Agent reasonably
determines to be doubtful.
"Revolving Committed Line" means the facility under which Borrowers
may request Advances under Section 2.1.1 in an amount up to Eighteen Million
Dollars ($18,000,000).
"Revolving Maturity Date" means August 15, 2001.
2. Section 2.11(a) is hereby replaced in its entirety with the following:
"(a) Subject to and upon the terms and conditions of this Agreement,
each Lender, severally and not jointly, agrees to make Advances to each Borrower
and/or Borrowers in an individual amount not to exceed such Lender's Commitment
and in an aggregate amount not to exceed the lesser of (i) the Borrowing Base or
(ii) the Revolving Committed Line. Subject to the terms and conditions of this
Agreement, amounts borrowed pursuant to this Section 2.1.1 may be repaid and
reborrowed at any time prior to the Revolving Maturity Date."
3. Section 2.1.1(s) is hereby added to the Agreement:
"(g) The Administrative Agent and Borrowers have entered into that
certain Business Loan Agreement dated November 29, 2000, as amended, whereby
Administrative Agent has extended a loan to Borrowers of up to Seven Million
Dollars ($7,000,000) (the "Sinopac Loan"). Borrowers and Lenders agree that all
credit extensions made to Borrowers under the Sinopac Loan shall be considered
Advances under the Revolving Committed Line hereunder and shall he secured by
the Collateral, and the separate Sinopac Loan shall hereby terminate."
4. Section 2.1.1(h) is hereby added to the Agreement:
(h) Lock Box Account. Borrowers shall open and maintain with Servicing
Agent an account (the "Lock Box Account") into which all funds received by
Borrowers from any source shall immediately be deposited. Borrowers shall direct
all account debtors to mail or deliver all checks or other forms of payment for
amounts owing to Borrowers to a post office box designated by Servicing Agent,
over which Servicing Agent shall have exclusive and unrestricted access.
Servicing Agent shall collect the mail delivered to such post office box, open
such mail, and endorse and credit all items to the Lock Box Account. Borrowers
shall direct all account debtors or other persons owing money to Borrowers who
make payments by electronic transfer of funds to wire such funds directly to the
Lock Box Account. Borrowers shall hold in trust for Lenders all amounts that
Borrowers receive despite the directions to make payments to the post office box
or Lock Box Account, and immediately deliver such payments to Servicing Agent in
their original form as received from the account debtor, with proper
endorsements for deposit into the Lock Box Account. Borrowers irrevocably
authorizes Servicing Agent to transfer to the Lock Box Account any funds that
have been deposited into any other accounts or that Lenders have otherwise
received. Borrowers shall not establish or maintain any accounts with any Person
other than Servicing Agent except for accounts opened in the ordinary course of
business from which all funds are transferred on a daily basis to the Lock Box
Account. Lenders shall have all right, tide and interest in all of the items
from time to time in the Lock Box Account and their proceeds. Neither of
Borrowers nor any person claiming through a Borrower shall have any right or
control over the use of, or any right to withdraw any amount from, the Lock Box
Account which shall be under the sole control of Servicing Agent."
5. Section 2.2 is hereby replaced in its entirety with the following:
"Section 2.2 Overadvances. If the aggregate amount of the outstanding
Advances exceeds the lesser of the Committed Revolving Line or the Borrowing
Base at any time, Borrowers shall immediately pay to Servicing Agent, for the
benefit of Lenders, in cash, the amount of such excess."
6. Section 2.3(a) is hereby replaced in its entirety with the following:
"(a) Interest Rate. Except as set forth in Section 2.3(b), any
Advances shall bear interest on the average daily balance thereof, at a per
annum rate equal to the Prime Rate plus one half of one percent (0.50%)."
7. Section 5.4 of the Agreement is hereby replaced in its entirety with
the following:
"Section 5.4 Bona Fide Eligible Accounts. The Eligible Accounts are
bone tide existing obligations. The property and services giving rise to such
Eligible Accounts have been delivered or rendered to the account debtor or to
the account debtor agent for immediate and unconditional acceptance by the
account debtor.
2
Borrower has not received notice of actual or imminent Insolvency Proceeding of
any account debtor that is included in any Borrowing Base Certificate as an
Eligible Account."
8. The following new paragraphs are hereby added to the end of Section
6.3 of the Agreement:
"Within fifteen (15) days after the last day of each month and
together with any Advance request pursuant to Section 2.1.1, Borrowers shall
each deliver to Servicing Agent a Borrowing Base Certificate signed by a
Responsible Officer in substantially the form of Exhibit F hereto.
Lenders shall have a right from time to time initially and thereafter
to audit each of Borrower's Accounts and appraise Collateral at such Borrower's
expense, provided that such audits will be conducted no more often than every
twelve (12) months unless an Event of Default has occurred and is continuing."
9. Section 6.9 of the Agreement is hereby replaced in its entirety with
the following:
"6.9 [Intentionally Omitted]."
10. Section 6.10 of the Agreement is hereby replaced in its entirety
with the following:
"6.10 [Intentionally Omitted]."
11. As a condition to the effectiveness of this Amendment, Servicing Agent
shall have received, in form and substance satisfactory to Servicing Agent, the
following:
(a) this Amendment, duly executed by Borrowers;
(b) a certificate of the Secretary of each Borrower with respect to
incumbency and resolutions authorizing the execution and delivery of this
Amendment;
(c) a legal opinion duly executed by Borrowers' counsel;
(d) corporate guarantee and resolutions duly executed by ORIENT
SEMICONDUCTOR ELECTRONICS, LIMITED;
(e) a nonrefundable loan fee (includes collateral audit fee) of
$90,000 (to be distributed by Servicing Agent to Lenders prorata), outstanding
legal fees, plus any Bank Expenses, including attorneys' fees and expenses,
relating to this Amendment: and
(f) such other documents, and completion of such other matters, as
Lenders may reasonably deem necessary or appropriate.
12. Exhibits A-1 and A-2, and Exhibit D of the Agreement are hereby
replaced in their entirety by the Exhibit A-1 and A-2 and Exhibit D attached
hereto and incorporated therein by this reference.
13. Exhibit F attached hereto is hereby added to the Agreement and
incorporated therein by this reference.
14. Lenders waive Borrowers' violations of Section 6.9 for the quarters
ending June 30, 2000. September 30, 2000, and December 31, 2000, as such section
was in effect prior to this Amendment Lenders do not waive any other failure by
Borrower to perform its Obligations under the Loan Documents. This waiver is not
a continuing waiver with respect to any failure to perform any Obligation after
the date of this Amendment.
3
15. Borrowers represents and warrants that the representations and
warranties contained in the Agreement are true and correct as of the date of
this Amendment, and that no Event of Default has occurred and is continuing.
16. Unless otherwise defined, all initially capitalized terms in this
Amendment shall be as defined in the Agreement. The Agreement, as amended
hereby, shall be and remain in full force and effect in accordance with its
respective terms and hereby is ratified and confirmed in all respects. Except as
expressly set forth herein, the execution, delivery, and performance of this
Amendment shall not operate as a waiver of, or as an amendment of, any right,
power, or remedy of Lenders under the Agreement, as in effect prior to the date
hereof. Borrowers ratify and reaffirm the continuing effectiveness of all
promissory notes, guaranties, security agreements, mortgages, deeds of trust,
environmental agreements, and all other instruments, documents and agreements
entered into in connection with the Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
first date above written.
INTEGRATED PACKAGING ASSEMBLY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Controller/Acting Chief
Financial Officer
---------------------------------
OSE, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Title: President
---------------------------------
BANK SINOPAC, LOS ANGELES BRANCH
By: /s/
------------------------------------
Title: Vice President & DGM
---------------------------------
Maximum Commitment: $12,000,000
Pro Rata Share: 66.7%
FAR EAST NATIONAL BANK
By: /s/
------------------------------------
Title: Vice President
---------------------------------
Maximum Commitment: $6,000,000
Pro Rata Share: 33.3%
4
EXHIBIT D
COMPLICANCE CERTIFICATE
TO: FAR EAST NATIONAL BANK, as Servicing Agent
FROM: INTEGRATED PACKAGING ASSEMBLY CORPORATION and OSE, INC.
The undersigned authorized officer of Integrated Packaging Assembly
Corporation hereby certifies that in accordance with the terms and conditions of
the Amended and Restated Loan and Security Agreement among each Borrower, Agents
and Lenders (the "Agreement"), (i) each Borrower is in complete compliance for
the period ending _________________ with all required covenants except as noted
below and (ii) all representations and warranties of each Borrower stated in the
Agreement are true and correct in all material respects as of the date hereof.
Attached herewith are the required documents supporting the above certification.
The Officer further certifies that these are prepared in accordance with
Generally Accepted Accounting Principles (GAAP) and are consistently applied
from one period to the next except as explained in an accompanying letter or
footnotes.
Please indicate compliance status by circling Yes/No under "Complies" column.
Reporting Covenant Required Complies
------------------ -------- ----------
FYE Financial Statements, 10K Annually within 15 days of filing Yes No
Quarterly Financial Statements, 10Q Quarterly within 15 days of filing Yes No
A/R & A/P Agings, Borrowing Base Cert Monthly within 15 days Yes No
Guarantor FYE Financial Statements Annually within 120 days of FYE Yes No
Guarantor Quarterly Financial Statements Quarterly within 60 days of quarter end Yes No
A/R Audit Initial and Annual Yes No
Intellectual Property acquired/developed Reporting (Section 6.8) Yes No
Comments Regarding Exceptions: See Attached BANK USE ONLY
Received By:
-------------------
AUTHORIZED SIGNER
Sincerely,
Date:
-------------------------------- --------------------------
SIGNATURE
Verified:
-------------------------------- -----------------------
TITLE AUTHORIZED SIGNER
Date:
-------------------------------- ---------------------------
DATE
Compliance Status: Yes No
5
EXHIBIT F
BORROWING BASE CERTIFICATE
--------------------------------------------------------------------------------
Borrower: Lenders: BANK SINOFAC, LOS ANGELES
---------------------------- BRANCH and FAR EAST NATIONAL BANK
Commitment Amount: $18,000,000
--------------------------------------------------------------------------------
ACCOUNTS RECEIVABLE
1. Accounts Receivable Book Value as of ________ $__________
2. Additions (please explain on reverse) $__________
3. TOTAL ACCOUNTS RECEIVABLE $__________
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4. Amounts over 90 days due $__________
5. Demo Accounts $__________
6. Intercompany/Employee Accounts $__________
7. Other (please explain on reverse) $__________
8. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $__________
9. Eligible Accounts (#3 minus #8) $__________
10. LOAN VALUE OP ACCOUNTS (80% of #9) $__________
BALANCES
11. Maximum Loan Amount $18,000,000
12. Total Funds Available [Lesser of #l1 or #10] $__________
13. Present balance owing on Line of Credit $__________
14. Outstanding under Sublimits (Letters of Credit) $__________
15. RESERVE POSITION (#12 minus #13 and #14) $__________
The undersigned represents and warrants that the foregoing is true, complete and
correct, and that the information reflected in this Borrowing Base Certificate
complies with the representations and warranties set forth in the Amended and
Restated Loan and Security Agreement between the undersigned and Lenders.
[BORROWER]
------------------------------------
By:
---------------------------------
Authorized Signer
6
CORPORATE RESOLUTIONS TO BORROW
--------------------------------------------------------------------------------
Borrower: Integrated Packaging Assembly Corporation
--------------------------------------------------------------------------------
I, the undersigned Secretary or Assistant Secretary of Integrated Packaging
Assembly Corporation (the "Corporation"), HEREBY CERTIFY that the Corporation is
organized and existing under and by virtue of the laws of the State of Delaware.
I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are true and
complete copies of the Certificate of Incorporation, as amended and the Bylaws
of the Corporation, each of which is in full force and effect on the date
hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation,
duly called and held, at which a quorum was present and voting (or by other duly
authorized corporate action in lieu of a meeting), the following resolutions
were adopted.
BE IT RESOLVED, that any one (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
Xxxxxx Xxxxx President & CEO /s/ Xxxxxx Xxxxx
-------------------- --------------------- -----------------------
Xxxxxxx X. Xxxxxx Controller/Acting CFO /s/ Xxxxxxx X. Xxxxxx
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
Borrow Money. To borrow from time to time from the Lenders, on such terms
as may be agreed upon between the officers, employees, or agents and the
Lenders, such sum or sums of money as in their judgment should be borrowed,
without limitation, including such sums as are specified in that certain Amended
and Restated Loan and Security Agreement dated as of December 1, 2000, as
amended by that certain Amendment to Loan and Security Agreement dated
February 15, 2001, as amended from time to time (the "Loan Agreement").
Execute Loan Agreement. To execute and deliver to Far East National Bank.
as Servicing Agent, Bank Sinopac, Los Angeles Branch, as Administrative Agent,
and the Lenders, the Loan Agreement and the related promissory notes, and also
to execute and deliver one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for the Loan Agreement and such
notes, one or more of the notes, or any portion of the notes.
Grant Security. To grant a security interest to Servicing Agent in the
Collateral described in the Loan Agreement, which security interest shall secure
all of the Corporation's Obligations, as described in the Loan Agreement.
7
Negotiate Items. To draw, endorse, and discount with Servicing Agent or
Lenders all drafts, trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to the Corporation or in which the
Corporation may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the account of the Corporation with
Servicing Agent or Lenders, or to cause such other disposition of the proceeds
derived therefrom as they may deem advisable.
Further Acts. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder, and in
all cases, to do and perform such other acts and things, to pay any and all fees
and costs, and to execute and deliver such other document; and agreements as
they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
resolutions and performed prior to the passage of these resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and each Agent and Lenders may rely on these Resolutions until written
notice of their revocation shall have been delivered to and received by them.
Any such notice shall not affect any of the Corporation's agreements or
commitments in effect at the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set forth opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Corporation; and
that the Resolutions arc in full force and effect and have not been modified or
revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on February 15, 2001 and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Assistant Secretary
--------------------------------------------------------------------------------
8
CORPORATE RESOLUTIONS TO BORROW
--------------------------------------------------------------------------------
Borrower: OSE, Inc.
--------------------------------------------------------------------------------
I, the undersigned Secretary or Assistant Secretary of OSE, INC. (the
"Corporation"), HEREBY CERTIFY that the Corporation is organized and existing
under and by virtue of the laws of the State of California.
I FURTHER CERTIFY that attached hereto as Attachments 1 and 2 are true and
complete copies of the Certificate of Incorporation, as amended and the Bylaws
of the Corporation, each of which is in full force and effect on the date
hereof.
I FURTHER CERTIFY that at a meeting of the Directors of the Corporation,
duly called and held, at which a quorum was present and voting (or by other duly
authorized corporate action in lieu of a meeting), the following resolutions
were adopted.
BE IT RESOLVED, that any one (1) of the following named officers,
employees, or agents of this Corporation, whose actual signatures are shown
below:
NAMES POSITIONS ACTUAL SIGNATURES
Xxxxxx Xxxxx President & CEO /s/ Xxxxxx Xxxxx
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
-------------------- --------------------- -----------------------
acting for an on behalf of this Corporation and as its act and deed be, and they
hereby are, authorized and empowered:
Borrow Money. To borrow from time to time from the Lenders, on such terms
as may be agreed upon between the officers, employees, or agents and the
Lenders, such sum or sums of money as in their judgment should be borrowed,
without limitation, including such sums as are specified in that certain Amended
and Restated Loan and Security Agreement dated as of December 1, 2000, as
amended by that certain Amendment to Loan and Security Agreement dated
February 15, 2001, as amended from time to time (the "Loan Agreement").
Execute Loan Agreement. To execute and deliver to Far East National Bank,
as Servicing Agent, Bank SinoPac, Los Angeles Branch, as Administrative Agent,
and the Lenders, the Loan Agreement and the related promissory notes, and also
to execute and deliver one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for the Loan Agreement and such
notes, one or more of the notes, or any portion of the notes.
Grant Security. To grant a security interest to Servicing Agent in the
Collateral described in the Loan Agreement, which security interest shall secure
all of the Corporation's Obligations, as described in the Loan Agreement.
Negotiate Items. To draw, endorse, and discount with Servicing Agent or
Lenders all drafts, trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to the Corporation or in
9
which the Corporation may have an interest, and either to receive cash for the
same or to cause such proceeds to be credited to the account of the Corporation
with Servicing Agent or Lenders, or to cause such other disposition of the
proceeds derived therefrom as they may deem advisable.
Further Acts. In the case of lines of credit, to designate additional or
alternate individuals as being authorized to request advances thereunder, and in
all cases, to do and perform such other acts and things, to pay any and all fees
and costs, and to execute and deliver such other documents and agreements as
they may in their discretion deem reasonably necessary or proper in order to
carry into effect the provisions of these Resolutions.
BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
resolutions and performed prior to the passage of these resolutions are hereby
ratified and approved, that these Resolutions shall remain in full force and
effect and each Agent and Lenders may rely on these Resolutions until written
notice of their revocation shall have been delivered to and received by them.
Any such notice shall not affect any of the Corporation's agreements or
commitments in effect at the time notice is given.
I FURTHER CERTIFY that the officers, employees, and agents named above are
duly elected, appointed, or employed by or for the Corporation, as the case may
be, and occupy the positions set forth opposite their respective names; that the
foregoing Resolutions now stand of record on the books of the Corporation; and
that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever.
IN WITNESS WHEREOF, I have hereunto set my hand on February 15, 2001 and
attest that the signatures set opposite the names listed above are their genuine
signatures.
CERTIFIED TO AND ATTESTED BY:
X /s/ Xxxxxx Xxxxx
-----------------------------------
Secretary
--------------------------------------------------------------------------------
10
INTEGRATED PACKAGING ASSEMBLY CORPORATION
AND OSE, INC.
REVOLVING PROMISSORY NOTE
$12,000,000 San Jose, California
February 15, 2001
FOR VALUE RECEIVED, INTEGRATED PACKAGING ASSEMBLY CORPORATION, a Delaware
corporation, and OSE, INC., a California corporation (individually a "Borrower"
and collectively, the "Borrowers"), jointly and severally, promise to pay to the
order of Bank SinoPac, Los Angeles Branch (the "Lender") the principal amount of
Twelve Million Dollars ($12,000,000) or, if less, the aggregate amount of
Advances (as defined in the Loan Agreement referred to below) made by Lender to
a Borrower pursuant to the Loan Agreement referred to below outstanding on the
Revolving Maturity Date (as defined in the Loan Agreement referred to below).
All unpaid amounts of principal and interest shall be due and payable in full on
the Revolving Maturity Date.
Borrowers also promises to pay interest on the unpaid principal amount
hereof from the date hereof until paid at the rates and at the times which shall
be determined in accordance with the provisions of the Loan Agreement.
Notwithstanding any other limitations contained in this Note, Lender does not
intend, to charge and Borrowers shall not be required to pay any interest or
other fees or charges in excess of the maximum permitted by applicable law. Any
payments in excess of such maximum shall be refunded to the a Borrower or
credited against principal.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
office of Servicing Agent described in the Loan Agreement. Until notified of the
transfer of this Note, each Borrower shall be entitled to deem Lender or such
person who has been so identified by the transferor in writing to the a Borrower
as the holder of this Note, as the owner and bolder of this Note.
This Note is referred to in, and is entitled to the benefits of, the
Amended and Restated Loan and Security Agreement dated as of December 1, 2000,
and amended by that certain Amendment to Loan and Security Agreement dated
February 15, 2001, and as amended from time to time (the "Loan Agreement") among
the Borrowers, the financial institutions named therein and the Agents. The Loan
Agreement, among other things, (i) provides for the making of advances (the
"Advances") by Lender to a Borrower from time to time in an aggregate amount not
to exceed at any time outstanding the U.S. dollar amounts stated therein, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The terms of this Note are subject to amendment only in the manner provided
in the Loan Agreement.
No reference herein to the Loan Agreement and no provision of this Note or
the Loan Agreement shall alter or impair the obligation of Borrowers, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, and in the currency herein prescribed.
Borrowers promise to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note.
Borrowers hereby consent to renewals and extensions of time at or after the
maturity hereof, without notice, and hereby waives diligence, presentment,
protest, demand and notice of every kind and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demand
hereunder.
This Note shall be governed by, and construed in accordance with, the laws
of the State of California without giving effect to its choice of law doctrine.
This Note shall be governed by, and construed in accordance with, the laws
of the State of California without giving effect to its choice of law doctrine.
IN WITNESS WHEREOF, each Borrower has caused this Note to be executed and
delivered by its duly authorized officer, as of the date and the place first
above written.
INTEGRATED PACKAGING ASSEMBLY CORPORATION OSE, INC.
BY: BY:
--------------------------- ---------------------------
TITLE: TITLE:
--------------------------- ---------------------------
INTEGRATED PACKAGING ASSEMBLY CORPORATION
AND OSE, INC.
REVOLVING PROMISSORY NOTE
$6,000,000 San Jose, California
February 15, 2001
FOR VALUE RECEIVED, INTEGRATED PACKAGING ASSEMBLY CORPORATION, a Delaware
corporation, and OSE, INC., a California corporation (individually a "Borrower"
and collectively, the "Borrowers"), jointly and severally, promise to pay to the
order of Far East National Bank (the "Lender") the principal amount of Six
Million Dollars ($6,000,000) or, if less, the aggregate amount of Advances (as
defined in the Loan Agreement referred to below) made by Lender to a Borrower
pursuant to the Loan Agreement referred to below outstanding on the Revolving
Maturity Date (as defined in the Loan Agreement referred to below). All unpaid
amounts of principal and interest shall be due and payable in full on the
Revolving Maturity Date.
Borrowers also promises to pay interest on the unpaid principal amount
hereof from the date hereof until paid at the rates and at the times which shall
be determined in accordance with the provisions of the Loan Agreement.
Notwithstanding any other limitations contained in this Note, Lender does not
intend to charge and Borrowers shall not be required. to pay any interest or
other fees or charges in excess of the maximum permitted by applicable law. Any
payments in excess of such maximum shall be refunded to the a Borrower or
credited against principal.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
office of Servicing Agent described in the Loan Agreement. Until notified of the
transfer of this Note, each Borrower shall be entitled to deem Lender or such
person who has been so identified by the transferor in writing to the a Borrower
as the holder of this Note, as the owner and holder of this Note.
This Note is referred to in, and is entitled to the benefits of, the
Amended and Restated Loan and Security Agreement dated as of December 1, 2000,
and amended by that certain Amendment to Loan and Security Agreement dated
February 15, 2001, and as amended from time to time (the "Loan Agreement") among
the Borrowers, the financial institutions named therein and the Agents. The Loan
Agreement, among other things, (i) provides for the making of advances (the
"Advances") by Lender to a Borrower from time to time in an aggregate amount not
to exceed at any time outstanding the U.S. dollar amounts stated therein, and
(ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepaymerits on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
The terms of this Note are subject to amendment only in the manner
provided in the Loan Agreement.
No reference herein to the Loan Agreement and no provision of this Note or
the Loan Agreement shall alter or impair the obligation of Borrowers, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, and in the currency herein prescribed.
Borrowers promise to pay all costs and expenses, including reasonable
attorneys' fees, incurred in the collection and enforcement of this Note.
Borrowers hereby consent to renewals and extensions of time at or after the
maturity hereof, without notice, and hereby waives diligence, presentment,
protest, demand and notice of every kind and, to the full extent permitted by
law, the right to plead any statute of limitations as a defense to any demand
hereunder.
This Note shall be governed by, and construed in accordance with, the laws
of the State of California without giving effect to its choice of law doctrine.
This Note shall be governed by, and construed in accordance with, the laws
of the State of California without giving effect to its choice of law doctrine.
IN WITNESS WHEREOF, each Borrower has caused this Note to be executed and
delivered by its duly authorized officer, as of the date and the place first
above written.
INTEGRATED PACKAGING ASSEMBLY CORPORATION OSE, INC.
BY: BY:
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TITLE: TITLE:
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