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EXHIBIT 10.6
[IMPERIAL BANK LOGO]
STARTER KIT LOAN AND SECURITY AGREEMENT
Borrower: Digital Impact, Inc. Address: 0000 Xxxxx Xxxxxxxx Xxxx.
Date: June 12, 0000 Xxx Xxxxx, XX 00000
THIS LOAN AND SECURITY AGREEMENT ("Agreement") is made and entered into on the
above date between IMPERIAL BANK ("Bank"), whose address is 000 Xxxxxxx
Xxxxxxx, Xxx Xxxx,Xxxxxxxxxx 00000-0000, and the party(ies) name above (jointly
and severally, "Borrower"), whose chief executive office is located at the
above address ("Borrower's Address").
1. LOANS. Bank will make loans to Borrower (the "Loans") up to the amount (the
"Credit Limit") shown on the Schedule to this Agreement (the "Schedule"),
provided no Event of Default and no event which, with notice or passage of time
or both, would constitute an Event of Default has occurred and is continuing.
All Loans and other monetary Obligations will bear interest at the rate shown
on the Schedule. Interest will be payable monthly, on the date shown on the
monthly billing from Bank. Bank may, in its discretion, charge Borrower's
deposit accounts maintained with Bank for any amounts coming due under this
Agreement.
2. SECURITY INTEREST. As security for all present and future indebtedness,
guarantees, liabilities, and other obligations, of Borrower to Bank
(collectively, the "Obligations"), Borrower hereby grants Bank a continuing
security interest in all of Borrower's right title and interest in and to any
property excluding intellectual property now or hereafter described in an
security agreement executed by Borrower to Bank as well as the following types
of property, whether now owned or hereafter acquired, and wherever located
(collectively, the "Collateral"): All "accounts", "general intangibles,"
"chattel paper," "documents," "letters of credit," "instruments," "deposit
accounts," "inventory," "farm products," "fixtures" and "equipment," as such
terms are defined in Division 9 of the California Uniform Commercial Code in
effect on the date hereof, and all products, proceeds and insurance proceeds of
the foregoing, provided, however, in no event shall this Agreement cover any
intellectual property or any rights or interests therein, including any
licenses or sublicenses.
3. REPRESENTATIONS AND AGREEMENTS OF BORROWER. Borrower represents to Bank as
follows, and Borrower agrees that the following representations will continue
to be true, and that Borrower will comply with all of the following agreements
throughout the term of this Agreement:
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower, if a corporation, is and will
continue to be, duly authorized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. The execution, delivery and
performance by Borrower of this Agreement, and all other documents
contemplated hereby have been duly and validly authorized, and do not violate
any law or any provision of and are not grounds for acceleration under, any
agreement or instrument which is binding upon Borrower.
3.2 NAME: PLACES OF BUSINESS. The name of Borrower set forth in this Agreement
is its correct name. Borrower shall give Bank 15 days' prior written notice
before changing its name. The address set forth in the heading to this Agreement
is Borrower's chief executive office. In addition, Borrower has places of
business and Collateral is located only at the locations set forth on the
Schedule. Borrower will give Bank at least 15 days prior written notice before
changing its chief executive office or locating the Collateral at any other
location.
3.3 COLLATERAL. Bank has and will at all times continue to have a first-priority
perfected security interest in all of the Collateral other than specific
equipment identified in existing filed or to be filed Financing Statements.
Borrower will immediately advise Bank in writing of any material loss or damage
to the Collateral.
3.4 FINANCIAL CONDITION AND STATEMENTS. All financial statements now or in the
future delivered to Bank have been, and will be prepared in conformity with
generally accepted accounting principles. Since the last date covered by any
such statement, there has been no material adverse change in the financial
condition or business of Borrower. Borrower will provide Bank: (i) within 30
days after the end of each month, a monthly financial statement prepared by
Borrower, and such other information as Bank shall reasonably request; (ii)
within 120 days
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following the end of Borrower's Fiscal year, complete annual financial
statements, certified by independent certified public accountants acceptable to
Bank and accompanied by the unqualified report thereon by said independent
certified public accountants: and (iii) other financial information reasonably
requested by Bank from time to time.
3.5 TAXES: COMPLIANCE WITH LAW. Borrower has filed, and will file, when due,
all tax returns and reports required by applicable law, and Borrower has paid,
and will pay, when due, all taxes, assessments, deposits and contributions
required by applicable law now or in the future owed by Borrower unless
diligently contested in good faith in proper proceedings, proper reserves for
tax liability are established in Borrower's financial statements according to
GAAP, and a stay of enforcement is in effect with respect to lien arising from
or securing the non-payment thereof. Borrower has complied, and will comply, in
all material respects, with all applicable laws, rules and regulations.
3.6 INSURANCE. Borrower will at all times adequately insure all of the
tangible personal property Collateral and carry such other business insurance as
is customary in Borrower's industry. Bank will be designated as Loss Payee on
all such insurance.
3.7 ACCESS TO COLLATERAL AND BOOKS AND RECORDS. At reasonable times but no more
than twice annually (and at any time when an Event of Default exists), on one
business day's notice, Bank, or its agents, shall have the right to inspect the
Collateral, and the right to audit and copy Borrower's books and records,
provided that Bank shall keep all such information confidential except as
required by law.
3.8 BANKING RELATIONSHIP AND OPERATING ACCOUNTS. Borrower shall maintain its
primary operating deposit accounts with Bank. Borrower shall at all times
maintain its primary banking relationship with Bank.
3.9 ADDITIONAL AGREEMENTS. Borrower shall not, without Bank's prior written
consent, do any of the following: (i) enter into any transaction outside the
ordinary course of business except for the sale of capital stock to venture
investors, provided that Borrower promptly delivers written notification to Bank
of any such stock sale;(ii) sell or transfer any Collateral, except in the
ordinary course of business; (iii) pay or declare any dividends on Borrower's
stock (except for dividends payable solely in stock of Borrower): or (iv)
redeem, retire, purchase or otherwise acquire, directly or indirectly, any of
Borrower's stock other than the repurchase of up to five percent (5%) of
Borrower's then issued stock in any fiscal year from Borrower's employees or
directors pursuant to written agreements with Borrower.
4. TERM. This Agreement shall continue in effect until the maturity date set
forth on the Schedule (the "Maturity Date"). This Agreement may be terminated,
without penalty, prior to the Maturity Date as follows: (i) by Borrower,
effective three business days after written notice of termination is given to
Bank: or (ii) by Bank at any time after the occurrence of an Event of Default,
without notice, effective immediately. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay all Obligations in full,
whether or not such Obligations are otherwise then due and payable. No
termination shall in any way affect or impair any security interest or other
right or remedy of Bank, nor shall any such termination relieve Borrower of any
Obligation to Bank, until all of the Obligations have been paid and performed
in full.
5. EVENTS OF DEFAULT AND REMEDIES. The occurrence of any of the following events
shall constitute an "Event of Default" under this Agreement: (a) Any
representation, statement, report or certificate given to Bank by Borrower or
any of its officers, employees or agents, now or in the future, is untrue or
misleading in a material respect; or (b) Borrower fails to pay when due any Loan
or any interest thereon or any other monetary Obligation; or (c) the total
Obligations outstanding at any time exceed the Credit Limit; or (d) Borrower
fails to perform any other non-monetary Obligation, which failure is not cured
within 15 business days after the date due; or (e) Dissolution, termination of
existence, insolvency or business failure of Borrower or appointment of a
receiver, trustee or custodian, for all or any part of the property of,
assignment for the benefit of creditors by, or the commencement of any
proceeding by or against Borrower under any reorganization, bankruptcy,
insolvency, arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, now or in the future in effect, which proceeding is
not dismissed within sixty (60) days in the event of a proceeding commenced
against Borrower; or (f) a material adverse change in the business, operations,
or financial or other condition of Borrower. If an Event of Default occurs, Bank
shall have the right to accelerate and declare all of the Obligations to be
immediately due and payable, increase the interest rate by an additional five
percent per annum, and exercise all rights and remedies recorded by applicable
law. If any interest payment, principal payment or principal balance payment due
from Borrower is delinquent ten or more days, Borrower 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 provision is to be construed as any obligation on
the part of Bank to accept payment past due or less than the total unpaid
principal
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balance after maturity. All payments shall be applied first to any late charges
owing, then to interest and the remainder, if any, to principal.
6. GENERAL. If any provision of this Agreement is held to be unenforceable, the
remainder of this Agreement shall still continue in full force and effect. This
Agreement and any other written agreements, documents and instruments executed
in connection herewith are the complete agreement between Borrower and Bank and
supersede all prior and contemporaneous negotiations and oral representations
and agreements, all of which are merged and integrated in this Agreement. There
are no oral understandings, representations or agreements between the parties
which are not in this Agreement or in other written agreements signed by the
parties in connection this Agreement. The failure of Bank at any time to require
Borrower to comply strictly with any of the provisions of this Agreement shall
not waive Bank's right later to demand and receive strict compliance. Any waiver
of a default shall not waive any other default. None of the provisions of this
Agreement may be waived except by a specific written waiver signed by an officer
of Bank and delivered to Borrower. The provisions of this Agreement may not be
amended, except in a writing signed by Borrower and Bank. Borrower shall
reimburse Bank for all reasonable attorney's fees and all other reasonable costs
incurred by Bank, in connection with this Agreement (whether or not a lawsuit is
filed) including any post petition bankruptcy activities. If Bank or Borrower
files any lawsuit against the other predicated on a breach of this Agreement,
the prevailing party shall be entitled to recover its reasonable costs and
reasonable attorney's fees from the non-prevailing party. Borrower may not
assign any rights under this Agreement without Bank's prior written consent.
This Agreement shall be governed by the laws of the State of California to the
jurisdiction of whose courts Borrower hereby agrees to submit.
7. MUTUAL WAIVER OF JULY TRIAL. BORROWER AND BANK EACH HEREBY WAIVER THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO, THIS AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF BANK OR
BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR
AFFILIATES.
8. REFERENCE PROCEEDINGS. a. Each controversy, dispute or claim ("Claim")
between the parties arising out of or relating to this Agreement, which is not
settled in writing within ten days after the "Claim Date" (defined as the date
on which a party gives written notice to all other parties that a controversy,
dispute or claim exists), will be settled by a reference proceeding in Los
Angeles, California in accordance with the provisions of Section 638 et seq. of
the California Code of Civil Procedure, or their successor section ("CCP"),
which shall constitute the exclusive remedy for the settlement of any Claim,
including whether such Claim is subject to the reference proceeding and the
parties waive their rights to initiate any legal proceedings against each other
in any court or jurisdiction other than the Superior Court of Los Angeles (the
"Court"). The referee shall be a retired Judge selected by mutual agreement of
the parties, and if they cannot so agree within thirty days after the Claim
Date, the referee shall be selected by the Presiding Judge of the Court. The
referee shall be appointed to sit as a temporary judge, as authorized by law.
The referee shall (a) be requested to set the matter for hearing within sixty
(60) days after the Claim Date and (b) try any and all issues of law or fact and
report a statement of decision upon them, if possible, within ninety (90) days
of the Claim Date. Any decision rendered by the referee will be final, binding
and conclusive and judgment shall entered pursuant to CCP 644 in the Court. All
discovery permitted by this Agreement shall be completed no later than fifteen
(15) days before the first hearing date established by the referee. The referee
may extend such period in the event of a party's refusal to provide requested
discovery for any reason whatsoever, including, without limitation, legal
objections raised to such discovery or unavailability of a witness due to
absence or illness. No party shall be entitled to "priority" in conducting
discovery. Depositions may be taken by either party upon seven (7) days written
notice, and, request for production or inspection of documents shall be
responded to within ten (10) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the
referee whose decision shall be final and binding upon the parties.
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b. The referee shall be required to determine all issues in accordance
with existing case law and the statutory laws of the State of California. The
rules of evidence applicable to proceedings at law in the State of California
will be applicable to the reference proceeding. The referee shall be empowered
to enter equitable as well as legal relief, to provide all temporary and/or
provisional remedies and to enter equitable orders that will be binding upon the
parties. The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that are the
subject of the reference. The parties hereto expressly reserve the right to
contest or appeal from the final judgment or any appealable order or appealable
judgment entered by the referee. The parties expressly reserve the right to
findings of fact, conclusions of law, a written statement of decision, and the
right to move for a new trial or a different judgment, which new trial, if
granted, is also to be a reference proceeding under this provision.
Borrower:
Digital Impact, Inc.
By: /s/ [Signature Illegible]
--------------------------------------------------
President or Vice President
By: /s/ [Signature Illegible]
--------------------------------------------------
(Assistant) Secretary or Chief Financial Officer
Bank:
IMPERIAL BANK
By: /s/ XXXXXX XXXXXXX
--------------------------------------------------
Assistant Vice President
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[IMPERIAL BANK LOGO]
SCHEDULE TO
STARTER KIT LOAN AND SECURITY AGREEMENT (EQUIPMENT ADVANCES)
BORROWER: DIGITAL IMPACT, INC.
DATE: JUNE 12, 1998
This Schedule is an integral part of the Loan and Security Agreement
between Imperial Bank (""Bank'') and the above-named Borrower of even date.
CREDIT LIMIT (EQUIPMENT)
(Section 1): $350,000 (such amount to be funded under the aggregate
Credit Limit). At no time shall total equipment Advances
exceed the Credit Limit. Equipment Advances will be made
during two consecutive advance periods identified as
Period (1) and Period (2).
Period (1) Equipment Advances will be made only on or
prior to December 17, 1998 (the "Last Advance Date" for
Period (1)) and Period (2) Equipment Advances will be
made only during the period beginning December 18, 1998
and on or prior to June 17, 1999 (the "Last Advance
Date" for Period (2)), and in either case only for the
purpose of purchasing equipment reasonably acceptable to
Bank. Borrower must provide invoices for the equipment to
Bank on or before the Last Advance Date for Period (1)
and/or Period (2).
INTEREST RATE
(Section 1): The rate equal to Bank's Prime Rate in effect from time
to time, plus .25% per annum during each advance period
and prime plus .50 after each advance period has ended
through maturity. Interest shall be calculated on the
basis of a 360 day year for the actual number of days
elapsed. The Prime Rate shall be the rate announced from
time to time by Bank as its "Prime Rate," as a base rate
upon which other rates charged by Bank are based, and it
is not necessarily the best rate available at Bank. The
interest rate applicable to the Obligations shall change
on each date there is a change in the Prime Rate.
MATURITY DATE
(Section 4): After the Last Advance Date of Period (1) and/or the Last
Advance Date of Period (2), the unpaid principal balance
of the Equipment Advances advanced during either period
shall be repaid in 24 equal monthly installments of
principal plus interest. The 24 equal monthly
installments shall commence for Period (1) on December
18, 1998 and for Period (2) on June 18, 1999 and shall
continue on the same day of each month thereafter until
the entire unpaid principal balance of the Equipment
Advances and all accrued unpaid interest have been paid
(subject to Bank's right to accelerate the Equipment
Advances upon the occurrence and during the continuation
of an Event of Default).
BORROWER: BANK:
DIGITAL IMPACT, INC. IMPERIAL BANK
By: /s/ XXXXXXX X. PARK By: /s/ XXXXXX XXXXXXX
----------------------------- -------------------------
PRESIDENT OR VICE PRESIDENT ASSISTANT VICE PRESIDENT
By:
-----------------------------
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[IMPERIAL BANK LOGO]
MASTER SCHEDULE TO STARTER KIT LOAN AND SECURITY AGREEMENT
BORROWER: DIGITAL IMPACT, INC.
DATE: JUNE 12, 1998
This Schedule is incorporated into and an integral part of the Starter Kit
Loan and Security Agreement between Imperial bank ("Bank") and the above-named
Borrower of even date.
CREDIT LIMIT (AGGREGATE)
(Section 1): $350,000 (includes, without limitation, Equipment,
if any)
INTEREST RATE (Section 1): The rate equal to Bank's Prime Rate in effect
from time to time, plus .25% per year. Interest
shall be calculated on the basis of a 360 day
year for the actual number of days elapsed. The
Prime Rate shall be the rate announced from time
to time by Bank as its "Prime Rate;" as a base
rate upon which other rates charged by Bank are
based, and it is not necessarily the best rate
available at Bank. The interest rate applicable
to the Obligations shall change on each date
there is a change in the Prime Rate
MATURITY DATE (Section 4): For working capital loans, December 17, 1999
OTHER LOCATIONS AND ADDRESSES
(Section 3.2): ________________________________________________
________________________________________________
________________________________________________
________________________________________________
BORROWER: BANK:
DIGITAL IMPACT, INC. IMPERIAL BANK
By: /s/ XXXXXXX X. PARK By: /s/ XXXXXX XXXXXXX
-------------------------- -------------------------
President or Vice President Assistant Vice President
By:
----------------------------
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[IMPERIAL BANK LOGO]
RESOLUTION AUTHORIZING CREDIT
BORROWER: DIGITAL IMPACT, INC., A CORPORATION
ORGANIZED UNDER THE LAWS OF THE STATE OF CALIFORNIA
DATE: JUNE 12, 1998
I, the undersigned, officer of the above-named borrower, a corporation
organized under the laws of the state set forth above, do hereby certify that
the following is a full, true and correct copy of resolutions duly and regularly
adopted by the Board of Directors of said corporation as required by law, and by
the by-laws, of said corporation, and that said resolutions are still in full
force and effect and have not been in any way modified, repealed, rescinded,
amended or revoked.
RESOLVED, that this corporation borrow from Imperial Bank ("Bank"), from
time to time, such sum or sums of money as, in the judgment of the officer or
officers authorized hereby, this corporation may require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, in the name of this corporation, to execute and deliver to
Bank the loan agreements, security agreements, notes financing statements, and
other documents and instruments providing for such loans and evidencing or
securing such loans and said authorized officers are authorized from time to
time to execute renewals, extensions and/or amendments of said loan agreements,
security agreements, and other documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, as security for any and all indebtedness of this corporation to
Bank, whether arising pursuant to this resolution or otherwise, to grant to but
not limited to, any and all real property, accounts, inventory, equipment,
general intangibles, instruments documents, chattel paper, notes, money, deposit
accounts, furniture, fixtures, goods and other property of every kind, and to
execute and deliver to Bank any and all pledge agreements mortgages, deeds of
trust, financing statements, security agreements and other agreements, which
said instruments and the note or notes and other instruments referred to in the
proceeding paragraph may contain such provisions, covenants, recitals and
agreements as Bank may require, and said authorized officers may approve, and
the execution thereof by said authorized officers shall be conclusive evidence
of such approval.
RESOLVED FURTHER, that Bank may conclusively rely on a certified copy of
these resolutions and a certificate of an officer of this corporation as to the
officers of this corporation and their offices and signatures, and continue to
conclusively rely on such certified copy of these resolutions and said
certificate for all past, present and future transactions until written notice
of any change hereto or thereto is given to Bank by this corporation by
certified mail, return receipt requested.
The undersigned further hereby certified that the following persons are the
fully elected and acting officers of the corporation named above as borrower and
that the following are their actual signatures.
NAMES OFFICE(S) ACTUAL SIGNATURES
----- --------- -----------------
XXXXXXX XXXX PRESIDENT/CHAIRMAN XXXXXXX XXXX
-------------------------- ------------------------ --------------------------
-------------------------- ------------------------ --------------------------
-------------------------- ------------------------ --------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as such corporate officer on
the date set forth above.
X /s/ XXXXXXX XXXXXX
----------------------------------------------------
Its: Secretary
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[IMPERIAL BANK LETTERHEAD]
IMPERIAL BANK
INTERNATIONAL DIVISION
000 XXXXXXX XXXXXX
XXXXX 0000
XXX XXXXXXXXX, XX 00000
Telex: 3730628 (IMPERIAL INW)
Tel: (000) 000-0000 FAX: (000) 000-0000
DATE: 12/31/98
DIGITAL IMPACT, INC.
0000 XXXXX XXXXXXXX XXXX.
XXX XXXXX, XX 00000
ATTN: XXXX XXXXXXXX
DEAR CUSTOMER:
AT YOUR REQUEST, WE HEREBY ESTABLISH OUR STANDBY LETTER OF CREDIT NO.
0SF98000522, A COPY OF WHICH IS ATTACHED FOR YOUR INFORMATION. SHOULD YOU HAVE
ANY QUESTIONS REGARDING THIS L/C, PLEASE CONTACT OUR INTERNATIONAL BANKING
DIVISION AT 000-000-0000.
PLEASE REVIEW THE DETAILS OF THE LETTER OF CREDIT.
ANY INCONGRUITY MUST BE REPORTED AS SOON AS POSSIBLE OR THE TERMS AND
CONDITIONS OF THE LETTER OF CREDIT SHALL BE DEEMED CONCLUSIVELY TO COMPLY WITH
THE APPLICATION. THIS L/C IS SUBJECT TO THE U.C.P. 1993 ICC PUBLICATION NO. 500
THIS IS A COMPUTER GENERATED ADVICE WHICH DOES NOT REQUIRE AN AUTHORIZED
SIGNATURE.
Page 1
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[IMPERIAL BANK LETTERHEAD]
INTERNATIONAL DIVISION, 000 XXXXXXX XXXXXX, XXXXX 0000, XXX XXXXXXXXX, XX 00000
IRREVOCABLE STANDBY LETTER OF CREDIT NO. OSF98000522 DATED DECEMBER 31, 1998
BENEFICIARY: APPLICANT:
CASIOPEA VENTURE CORPORATION DIGITAL IMPACT INC.
X/X XXX XXXXXXX XXXXXXXXXX 0000 XXXXX XXXXXXXX BLVD.
000 XXXXX XXXX, XXXXX 000 XXX XXXXX, XX 00000
XXX XXXXX, XX 00000
EXPIRY DATE AND PLACE: AMOUNT:
JANUARY 15, 2002 AT OUR OFFICE $108,229.95 (ONE HUNDRED
000 XXXXXXX XXXXXX, XXXXX 0000 EIGHT THOUSAND TWO
XXX XXXXXXXXX, XX 00000 HUNDRED TWENTY NINE
AND 95/100 U.S. DOLLARS)
GENTLEMEN:
WE HEREBY ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR
AVAILABLE BY PAYMENT OF YOUR DRAFT(S) DRAWN AT SIGHT ON IMPERIAL BANK, SAN
FRANCISCO, CA. DRAFT(S) MUST BE MARKED AS DRAWN UNDER IMPERIAL BANK STANDBY
LETTER OF CREDIT NO. 0SF98000522 AND ACCOMPANIED BY THE FOLLOWING DOCUMENT(S):
1. THE ORIGINAL OF THIS STANDBY LETTER OF CREDIT AND AMENDMENTS, IF ANY.
2. YOUR WRITTEN STATEMENT: (A) CERTIFYING THAT TENANT HAS FAILED TO PERFORM A
PAYMENT OBLIGATION OR OTHER OBLIGATION UNDER THE TERMS OF ITS LEASE DATED
NOVEMBER 30, 1998, FOR REFERENCE PURPOSES, AND COVERING THE PREMISES AT 000
XXXXX XXXX, XXXXX 000, XXX XXXXX, XX ("THE LEASE"), AND THAT AS A RESULT OF
SUCH FAILURE, YOU ARE ENTITLED TO DRAW AGAINST AND RECEIVED PROCEEDS UNDER
THIS LETTER OF CREDIT IN THE AMOUNT OF $_______, OR (B) SPECIFYING EITHER
(I) THAT YOUR DRAW IS BEING MADE AS DEFAULT RELATED DRAW PURSUANT TO
SUBSECTION 6.1.2.2 OF THE LEASE, OR (II) THAT YOUR DRAW IS BEING MADE AS AN
EXPIRATION RELATED DRAW PURSUANT TO SUBSECTION 6.1.2.4 OR SUBSECTION
6.1.2.6 OF THE LEASE.
SPECIAL CONDITIONS:
1. PARTIAL DRAWING ALLOWED.
2. YOU MAY TRANSFER THIS LETTER OF CREDIT TO YOUR TRANSFEREE(S), SUCCESSORS OR
ASSIGNS UPON SATISFACTORY DELIVERY AND PRESENTATION TO THE ISSUING BANK OF
(1) THE ORIGINAL STANDBY LETTER OF CREDIT AND AMENDMENTS, IF ANY, FOR
PROPER ENDORSEMENT (2) A REQUEST FOR TRANSFER ON THE ISSUER'S USUAL
TRANSFER FORM (3) VERIFICATION OF SIGNATURE AND AUTHORITY ON SUCH TRANSFER
FORM SIGNING FOR THE BENEFICIARY (4) PAYMENT OF A TRANSFER FEE AND (5) ANY
OTHER REASONABLE REQUIREMENTS RELATIVE TO THE UCP 500 AND U.S. GOVERNMENT
REGULATIONS.
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[IMPERIAL BANK LETTERHEAD]
INTERNATIONAL DIVISION, 000 XXXXXXX XXXXXX, XXXXX 0000, XXX XXXXXXXXX, XX 00000
IRREVOCABLE STANDBY LETTER OF CREDIT NO. OSF98000522 DATED DECEMBER 31, 1998
PAGE 2
ALL DOCUMENTS DRAWN UNDER THIS LETTER OF CREDIT ARE TO BE DISPATCHED IN ONE LOT
BY COURIER TO IMPERIAL BANK, INTERNATIONAL BANKING DIVISION, 000 XXXXXXX XXXXXX
XXXXX 0000, XXX XXXXXXXXX, XX 00000.
WE HEREBY ENGAGE WITH YOU THAT ALL DRAFTS DRAWN UNDER AND IN COMPLIANCE WITH THE
TERMS OF THIS CREDIT WILL BE DULY HONORED IF DRAWN AND PRESENTED FOR PAYMENT AT
THIS OFFICE ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.
EXCEPT SO FAR AS OTHERWISE EXPRESSLY STATED, THIS CREDIT IS SUBJECT TO THE
"UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS" (1993 REVISION)
INTERNATIONAL CHAMBER OF COMMERCE (PUBLICATION NO. 500).
/s/ [Signature Illegible] /s/ [Signature Illegible]
--------------------- ---------------------
AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE
