Exh 10.3
SEAFIRST BANK [LOGO] BUSINESS LOAN AGREEMENT
PART A
This Business Loan Agreement ("Agreement") is made between TUSCANY, INC. DBA
TUSCANY COFFEE ROASTER AND BAGEL BAKERY ("Borrower") and BANK OF AMERICA NW,
N.A., doing business as SEAFIRST BANK (Including its successors and/or assigns
"Bank") with respect to the following:
1) Loan. Subject to the terms of this Agreement, Bank agrees to lend to Borrower
as follows:
(a) Total Amount Available: $1,600,000.
(b) This loan matures on: September 1, 1997
(c) Interest Rate: Bank's publicly announced prime rate plus 1.25
percent of the principal per annum, adjusted on the date of
any Bank prime rate change.
(d) Interest Rate Basis: All interest will be calculated on the
basis of actual number of days elapsed over a year of 360
days.
(e) Repayment: At the times and in amounts as set forth in note(s)
required under Part B Article 1 of this Agreement.
(f) Loan Fee: $8,000 payable upon closing via a direct debit to
account #00000000.
(g) Collateral. This revolving line of credit shall be unsecured.
2) Line of Credit. Subject to the terms of this Agreement, Bank will make
loans to Borrower under a revolving line of credit as follows:
(a) Total Amount Available: $600,000.
(b) Availability Period: Advances are available through March 1,
1997. However, if loans are made and/or new promissory notes
executed after the termination date, such advances will be
subject to the terms of this Agreement until repaid in full
unless a written statement signed by Bank and Borrower
provides otherwise, or a replacement loan agreement is
executed. The making of such additional advances alone,
however, does not constitute a commitment by Bank to make any
further advances or extend the availability period.
(c) Interest Rate: Bank's publicly announced prime rate plus 1.25
percent of the principal per annum, adjusted on the date of
any Bank prime rate change.
(d) Interest Rate Basis: All interest will be calculated on the
basis of actual number of days elapsed over a year of 360
days.
(e) Repayment: At the times and in amounts as set forth in note(s)
required under Part B Article 1 of this Agreement.
(f) Loan Fee: $3,000 payable upon closing via a direct debit to
account #00000000.
(g) Collateral: This revolving line of credit shall be unsecured.
INITIALS: TUSCANY PREMIUM COFFEES
SEAFIRST BANK
PART B
1. Promissory Note(s). All loans shall be evidenced by promissory notes in
a form and substance satisfactory to Bank.
2. Conditions to Availability of Loan/Line of Credit. Before Bank is
obligated to disburse/make any advance, or at any time thereafter which
Bank deems necessary and appropriate, Bank must receive all of the
following, each of which must be in form and substance satisfactory to
Bank ("loan documents"):
2.1 Original, executed promissory note(s);
2.2 Original executed security agreement(s) and/or deed(s) of
trust covering the collateral described in Part A;
2.3 All collateral described in Part A in which Bank wishes to
have a possessory security interest;
2.4 Financing statement(s) executed by Borrower;
2.5 Such evidence that Bank may deem appropriate that the security
interest and liens in favor of Bank are valid, enforceable,
and prior to the rights and interests of others except those
consented to in writing by Bank;
+2.6 The following limited guaranty(ies) in favor of the Bank in
support of Facility #1 at $200,000 each: Xxxx X. XxXxxxxx,
Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxx X. Xxxxxxxxxx,
Xxxxx X. Xxxx, Xxxxxxxx X. Xxxxxx, Xxxxx X. Milgard, Xxxxxxx
X. Xxxxxxx, Xxxxx X. Xxxx. In support of Facility #2: Xxxxxx
X. Xxxxxxxx ($100,000), Xxxx Xxxxxx ($200,000), Xxxx X.
XxXxxxxx ($200,000), Xxxx Xxxxxxxxx ($100,000) and Xxx X.
Xxxxxxxxxx ($200,000);
+2.7 Subordination agreement(s) in favor of Bank executed by: N/A;
2.8 Evidence that the execution, delivery, and performance by
Borrower of this Agreement and the execution, delivery, and
performance by Borrower and any corporate guarantor or
corporate subordinating creditor of any instrument or
agreement required under this Agreement, as appropriate, have
been duly authorized;
2.9 Any other document which is deemed by the Bank to be required
from time to time to evidence loans or to effect the
provisions of this Agreement;
2.10 If requested by Bank, a written legal opinion expressed to
Bank, of counsel for Borrower as to the matters set forth in
sections 3.1 and 3.2, and to the best of such counsel's
knowledge after reasonable investigation, the matters set
forth in sections 3.3, 3.5, 3.6, 3.7, 3.8 and such other
matters as the Bank may reasonably request;
2.11 Pay or reimburse Bank for any out-of-pocket expenses expended
in making or administering the loans made hereunder including
without limitation attorney's fees (including allocated costs
of in-house counsel);
3. Representations and Warranties. Borrower represents and warrants to
Bank, except as Borrower has disclosed to Bank in writing, as of the
date of this Agreement and hereafter so long as credit granted under
this Agreement is available and until full and final payment of all
sums outstanding under this Agreement and promissory notes that:
+3.1 Borrower is duly organized and existing under the laws of the
state of its organization as a:
General Limited Sole dba Tuscany Coffee
Corporation Partnership Partnership Proprietorship Roaster and Bagel
Bakery
Borrower is properly licensed and in good standing in each
state in which Borrower is doing business and Borrower has
qualified under, and complied with, where required, the
fictitious or trade name statutes of each state in which
Borrower is doing business, and Borrower has obtained all
necessary government approvals for its business activities;
the execution, delivery, and performance of this Agreement and
such notes and other instruments required herein are within
Borrower's powers, have been duly authorized, and, as to
Borrower and any guarantor, are not in conflict with the terms
of any charter, bylaw, or other organization papers of
Borrower, and this Agreement, such notes and the loan
documents are valid and enforceable according to their terms;
3.2 The execution, delivery, and performance of this Agreement,
the loan documents and any other instruments are not in
conflict with any law or any indenture, agreement or
undertaking to which Borrower is a party or by which Borrower
is bound or affected;
3.3 Borrower has title to each of the properties and assets as
reflected in its financial statements (except such assets
which have been sold or otherwise disposed of in the ordinary
course of business), and no assets or revenues of the Borrower
are subject to any lien except as required or permitted by
this Agreement, disclosed in its financial statements or
otherwise previously disclosed to Bank in writing;
3.4 All financial information, statements as to ownership of
Borrower and all other statements submitted by Borrower to
Bank, whether previously or in the future, are and will be
true and correct in all material respects upon submission and
are and will be complete upon submission insofar as may be
necessary to give Bank a true and accurate knowledge of the
subject matter thereof;
3.5 Borrower has filed all tax returns and reports as required by
law to be filed and has paid all taxes and assessments
applicable to Borrower or to its properties which are
presently due and payable, except those being contested in
good faith;
3.6 There are no proceedings, litigation or claims (including
unpaid taxes) against Borrower pending or, to the knowledge of
the Borrower, threatened, before any court or government
agency, and no other event has occurred which may have a
material adverse effect on Borrower's financial condition;
3.7 There is no event which is, or with notice or lapse of time,
or both, would be, an Event of Default (as defined in
Section 7) under this Agreement;
3.8 Borrower has exercised due diligence in inspecting Borrower's
properties for hazardous wastes and hazardous substances.
Except as otherwise previously disclosed and acknowledged to
Bank in writing: (a) during the period of Borrower's ownership
of Borrower's properties, there has been no use, generation,
manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or hazardous
substance by any person in, on, under or about any of
Borrower's properties; (b) Borrower has no actual or
constructive knowledge that there has been any use,
generation, manufacture, storage, treatment, disposal, release
or threatened release of any hazardous waste or hazardous
substance by any person in, on, under or about any of
Borrower's properties by any prior owner or occupant of any of
Borrower's properties; and (c) Borrower has no actual or
constructive notice of any actual or threatened litigation or
claims of any kind by any person relating to such matters. The
terms "hazardous waste(s), "hazardous substance(s),"
"disposal," "release," and "threatened release" as used in
this Agreement shall have the same meanings as set forth in
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9501, et
seq., the Superfund Amendments and Reauthorization Act of
1986, as amended, Pub. L. No. 99-499, the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801, et
seq., the Resource Conservation and Recovery Act, as amended,
49 U.S.C. Section 6901, et seq., or other applicable state or
federal laws, rules or regulations adopted pursuant to any of
the foregoing.
+3.9 Each chief place of business of Borrower, and the office or
offices where Borrower keeps its records concerning any of the
collateral, is located at: 000 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000.
4. Affirmative Covenants. So long as credit granted under this Agreement
is available and until full and final payment of all sums outstanding
under this Agreement and promissory note(s) Borrower will:
+4.1 Use the proceeds of the loans covered by this Agreement only
in connection with Borrower's business activities and
exclusively for the following purposes: General corporate
purposes including funding of new store development.
+4.2 Maintain current assets in an amount at least equal to N/A
times current liabilities, and not less than $ N/A. Current
assets and current liabilities shall be determined in
accordance with generally accepted accounting principles and
practices, consistently applied;
+4.3 Maintain a tangible net worth plus convertible subordinated
debt of at least $2,000,000 through Dec. 30, 1996, at least
$4,000,00 as of Dec. 31, 1996, and thereafter. "Tangible net
worth" means the excess of total assets over total
liabilities, excluding, however, from the determination of
total assets (a) all assets which should be classified as
intangible assets such as goodwill, patents, trademarks,
copyrights, franchises, and deferred charges (including
unamortized debt discount and research and development costs),
(b) treasury stock, (c) cash held in a sinking or other
similar fund established for the purpose of redemption or
other retirement of capital stock, (d) to the extent not
already deducted from total assets, reserves for depreciation,
depletion, obsolescence or amortization of properties and
other reserves or appropriations of retained earnings which
have been or should be established in connection with the
business conducted by the relevant corporation, and (e) any
revaluation or other write-up in book value of assets
subsequent to the fiscal year of such corporation last ended
at the date of this Agreement;
+4.4 Upon request Borrower agrees to insure and to furnish Bank
with evidence of insurance covering the life of Borrower (if
an individual) or the lives of designated partners or officers
of Borrower (if a partnership or corporation) in the amounts
stated below. Borrower shall take such actions as are
reasonably requested by Bank, such as assigning the insurance
policies to Bank or naming Bank as beneficiary and obtaining
the insurer's acknowledgment thereof, to provide that in the
event of the death of any of the named insureds the policy
proceeds will be applied to payment of Borrower's obligations
owing to Bank;
Name: N/A Amount: N/A
Name: N/A Amount: N/A
+4.5 Promptly give written notice to Bank of: (a) all litigation
and claims made or threatened affecting Borrower where the
amount is $ 50,000 or more; (b) any substantial dispute which
may exist between Borrower and any governmental regulatory
body or law enforcement authority; (c) any Event of Default
under this Agreement or any other agreement with Bank or any
other creditor or any event which become an Event of Default;
and (d) any other matter which has resulted or might result in
a material adverse change in Borrower's financial condition or
operations;
+4.6 Borrower shall as soon as available, but in any event within
90 days following the end of each Borrower's fiscal years and
within 45 days following the end of each quarter provide to
Bank, in a form satisfactory to Bank (including audited
statements if required at any time by Bank), such financial
statements, which will include a covenant compliance
certificate signed by the Borrower's Chief Financial Officer,
and other information respecting the financial condition and
operations of Borrower as Bank may reasonably request;
4.7 Borrower will maintain in effect insurance with responsible
insurance companies in such amounts and against such risks as
is customarily maintained by persons engaged in businesses
similar to that of Borrower and all policies covering property
given as security for the loans shall have loss payable
clauses in favor of Bank. Borrower agrees to deliver to Bank
such evidence of insurance as Bank may reasonably require and,
within thirty (30) days after notice from Bank, to obtain such
additional insurance with an insurer satisfactory to the Bank;
4.8 Borrower will pay all indebtedness taxes and other obligations
for which the Borrower is liable or to which its income or
property is subject before they shall become delinquent,
except any which is being contested by the Borrower in good
faith;
4.9 Borrower will continue to conduct its business as presently
constituted, and will maintain and preserve all rights,
privileges and franchises now enjoyed, conduct Borrower's
business in an orderly, efficient and customary manner, keep
all Borrowers properties in good working order and condition,
and from time to time make all needed repairs, renewals or
replacements so that the efficiency of Borrower's properties
shall be fully maintained and preserved;
4.10 Borrower will maintain adequate books, accounts and records
and prepare all financial statements required hereunder in
accordance with generally accepted accounting principles and
practices consistently applied, and in compliance with the
regulations of any governmental regulatory body having
jurisdiction over Borrower or Borrower's business;
4.11 Borrower will permit representatives of Bank to examine and
make copies of the books and records of Borrower and to
examine the collateral of the Borrower at reasonable times;
4.12 Borrower will perform, on request of Bank, such acts as may be
necessary or advisable to perfect any lien or security
interest provided for herein or otherwise carry out the intent
of this Agreement;
4.13 Borrower will comply with all applicable federal, state and
municipal laws, ordinances, rules and regulations relating to
its properties, charters, businesses and operations, including
compliance with all minimum funding and other requirements
related to any of Borrower's employee benefit plans;
4.14 Borrower will permit representatives of Bank to enter onto
Borrower's properties to inspect and test Borrower's
properties as Bank, in its sole discretion, may deem
appropriate to determine Borrower's compliance with section
5.8 of this Agreement; provided however, that any such
inspections and tests shall be for Bank's sole benefit and
shall not be construed to create any responsibility or
liability on the part of Bank to Borrower or to any third
party.
+4.15 Borrower in addition to scheduled quarterly principal payments
under Facility #1, will apply a minimum of 25% of all equity
and convertible subordinated debt net proceeds raised, first
to fully repay Facility #1, and thereafter to repay
outstandings remaining under Facility #2.
+4.16 Borrower to provide monthly schedule detailing the capital
(equity and convertible subordinated debt) raised for the
month and paydown the applicable credit line.
5. Negative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding
under this Agreement and promissory note(s):
+5.1 Borrower will not, during any fiscal year, expend or incur in
the aggregate more than $N/A for fixed assets, nor more than
$N/A for any single fixed asset whether or not payable that
fiscal year or later under any purchase agreement or lease;
5.2 Borrower will not, without the prior written consent of Bank,
purchase or lease under an agreement for acquisition, incur
any other indebtedness for borrowed money, mortgage, assign,
or otherwise encumber any of Borrower's assets, nor sell,
transfer or otherwise hypothecate any such assets except in
the ordinary course of business. Borrower shall not guaranty,
endorse, co-sign, or otherwise become liable upon the
obligations of others, except by the endorsement of negotiable
instruments for deposit or collection in the ordinary course
of business. For purposes of this paragraph, the sale or
assignment of accounts receivable, or the granting of a
security interest therein, shall be deemed the incurring of
indebtedness for borrowed money;
+5.3 The total of salaries, withdrawals, or other forms of
compensation, whether paid in cash or otherwise, by Borrower
shall not exceed the following amounts for the persons
indicated, nor will amounts in excess of such limits be paid
to any other person:
Name: N/A Amount: N/A
Name: N/A Amount: N/A
5.4 Borrower will not, without Bank's prior written consent,
declare any dividends on shares of its capital stock, or apply
any of its assets to the purchase, redemption or other
retirement of such shares, or otherwise amend its capital
structure;
+5.5 Borrower will not make any loan or advance to any person(s) or
purchase or otherwise acquire the capital stock, assets or
marketable general obligations of the United States or a
State, or marketable obligations fully guarantied by the
United States, (c) short-term commercial paper with the
highest rating of a generally recognized rating service, (d)
other investments related to the Borrower's business which,
together with such other investments now outstanding, do not
in the aggregate exceed the sum of $100,000 at any time;
5.6 Borrower will not liquidate or dissolve or enter into any
consolidation, merger, pool, joint venture, syndicate or other
combination, or sell, lease, or dispose of Borrower's business
assets as a whole or such as in the opinion of Bank constitute
a substantial portion of Borrower's business or assets;
5.7 Borrower will not engage in any business activities or
operations substantially different from or unrelated to
present business activities or operations; and
5.8 Borrower, and Borrower's tenants, contractors, agents or other
parties authorized to use any of Borrower's properties, will
not use, generate, manufacture, store, treat, dispose of, or
release any hazardous substance or hazardous waste in, on,
under or about any of Borrower's properties; and
any such activity shall be conducted in compliance with all
applicable federal, state and local laws, regulations and
ordinances, including without limitation those described in
section 3.8.
6. Waiver, Release and Indemnification. Borrower hereby: (a) releases and
waives any claims against Bank for indemnity or contribution in the
event Borrower becomes liable for cleanup or other costs under any of
the applicable federal, state or local laws, regulations or ordinances,
including without limitation those described in section 3.8, and (b)
agrees to indemnify and hold Bank harmless from and against any and all
claims, losses, liabilities, damages, penalties and expenses which Bank
may directly or indirectly sustain or suffer resulting from a breach of
(i) any of Borrower's representations and warranties with respect to
hazardous wastes and hazardous substances contained in section 3.8, or
(ii) section 5.8. The provisions of this section 6 shall survive the
full and final payment of all sums outstanding under this Agreement and
promissory notes and shall not be affected by Bank's acquisition of any
interest in any of the Borrower's properties, whether by foreclosure or
otherwise.
7. Events of Default. The occurrence of any of the following events
("Events of Default") shall terminate any and all obligations on the
part of Bank to make or continue the loan and/or line of credit and, at
the option of the Bank, shall make all sums of interest and principal
outstanding under the loan and/or line of credit immediately due and
payable, without notice of default, presentment or demand for payment,
protest or notice of non payment or dishonor, or other notices or
demands of any kind or character, all of which are waived by Borrower,
and Bank may proceed with collection of such obligations and
enforcement and realization upon all security which it may hold and to
the enforcement of all rights hereunder or at law:
7.1 The Borrower shall fail to pay when due any amount payable by
it hereunder on any loans or notes executed in connection
herewith;
7.2 Borrower shall fail to comply with the provisions of any other
covenant, obligation or term of this Agreement for a period of
fifteen (15) days after the earlier of written notice thereof
shall have been given to the Borrower by Bank or Borrower or
any Guarantor has knowledge of an Event of Default or an event
that can become an Event of Default;
7.3 Borrower shall fail to pay when due any other obligation for
borrowed money, or to perform any term or covenant on its part
to be performed under any agreement relating to such
obligation or any such other debt shall be declared to be due
and payable and such failure shall continue after the
applicable grace period;
7.4 Any representation or warranty made by Borrower in this
Agreement or in any other statement to Bank shall prove to
have been false or misleading in any material respect when
made;
7.5 Borrower makers an assignment for the benefit of creditors,
files a petition in bankruptcy, is adjudicated insolvent or
bankrupt, petitions to any court for a receiver or trustee for
Borrower or any substantial part of its property, commences
any proceeding relating to the arrangement, readjustment,
reorganization or liquidation under any bankruptcy or similar
laws, or if there is commenced against Borrower any such
proceedings which remain undismissed for a period of thirty
(30) days or, if Borrower by any act indicates its consent or
acquiescence in any such proceeding or the appointment of any
such trustee or receiver;
+7.6 Any judgment attaches against Borrower or any of its
properties for an amount in excess of $50,000 which remains
unpaid, unstayed on appeal, unbonded, or undismissed for a
period of thirty (30) days;
7.7 Loss of any required government approvals, and/or any
governmental regulatory authority takes or institutes action
which, in the opinion of Bank, will adversely affect
Borrower's condition, operations or ability to repay the loan
and/or line of credit;
7.8 Failure of Bank to have a legal, valid and binding first lien
on, or a valid and enforceable prior perfected security
interest in, any property covered by any deed of trust or
security agreement required under this Agreement;
7.9 Borrower dies, becomes incompetent, or ceases to exist as a
going concern;
7.10 Occurrence of an extraordinary situation which gives Bank
reasonable grounds to believe that Borrower may not, or will
be unable to, perform its obligations under this or any other
agreement between Bank and Borrower; or
7.11 Any of the preceding events occur with respect to any
guarantor of credit under this Agreement, or such guarantor
dies or becomes incompetent, unless the obligations
arising under the guaranty and related agreements have been
unconditionally assumed by the guarantor's estate in a manner
satisfactory to Bank.
8. Successors; Waivers. Notwithstanding the Events of Default above, this
Agreement shall be binding upon and inure to the benefit of Borrower
and Bank, their respective successors and assigns, except that Borrower
may not assign its rights hereunder. No consent or waiver under this
Agreement shall be effective unless in writing and signed by the Bank
and shall not waive or affect any other default, whether prior or
subsequent thereto, and whether of the same or different type. No delay
or omission on the part of the Bank in exercising any right shall
operate as a waiver of such right or any other right.
9. Arbitration.
9.1 At the request of either Bank or Borrower any controversy or
claim between the Bank and Borrower, arising from or relating
to this Agreement or any Loan Document executed in connection
with this Agreement or arising from any alleged tort shall be
settled by arbitration in King County Washington. The United
States Arbitration Act will apply to the arbitration
proceedings which will be administered by the American
Arbitration Association under its commercial rules of
arbitration except that unless the amount of the claim(s)
being arbitrated exceeds $5,000,000 there shall be only one
arbitrator. Any controversy over whether an issue is
arbitrable shall be determined by the arbitrator(s). Judgment
upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of any action
for judicial relief or pursuit of a provisional or ancillary
remedy shall not constitute a waiver of the right of either
party, including plaintiff, to submit the controversy or claim
to arbitration if such action for judicial relief is
contested.
For purposes of the application of the statute of limitations
the filing of an arbitration as provided herein is the
equivalent of filing a lawsuit and the arbitrator(s) will have
the authority to decide whether any claim or controversy is
barred by the statute of limitations, and if so, to dismiss
the arbitration on that basis. The parties consent to the
joinder in the arbitration proceedings of any guarantor,
hypothecator or other party having an interest related to the
claim or controversy being arbitrated.
9.2 Notwithstanding the provisions of Section 9.1, no controversy
or claim shall be submitted to arbitration without the consent
of all parties if at the time of the proposed submission, such
controversy or claim arises from or relates to an obligation
secured by real property;
9.3 No provision of this Section 9 shall limit the right of the
Borrower or the Bank to exercise self-help remedies such as
setoff, foreclosure or sale of any collateral, or obtaining
any ancillary provisional or interim remedies from a court of
competent jurisdiction before, after or during the pendency of
any arbitration proceeding. The exercise of any such remedy
does not waive the right of either party to request
arbitration. At Bank's option foreclosure under any deed of
trust may be accomplished by exercise of the power of sale
under the deed of trust or judicial foreclosure as a mortgage.
10. Collection Activities, Lawsuits and Governing Law. Borrower agrees to
pay Bank all costs and expenses (including reasonable attorney's fees
and the allocated cost for in-house legal services incurred by Bank),
to enforce this Agreement, any notes or any Loan Documents pursuant to
this Agreement, whether or not suit is instituted. If suit is
instituted by Bank to enforce this Agreement or any of these documents,
Borrower consents to the personal jurisdiction of the Courts of the
State of Washington and Federal Courts located in the State of
Washington. Borrower further consents to the venue of this suit, being
laid in King County, Washington. This Agreement and any notes and
security agreements entered into pursuant to this Agreement shall be
construed in accordance with the laws of the State of Washington.
+11. Additional Provisions.
Borrower agrees to the additional provisions set forth immediately
following this Section 11 or on any "Exhibit N/A" attached to and
hereby incorporated into Agreement. This Agreement supersedes all oral
negotiations or agreements between Bank and Borrower with respect to
the subject matter hereof and constitutes the entire understanding and
Agreement of the matters set forth in this Agreement.
11.1 If any provision of this Agreement is held to be invalid or
unenforceable, then (a) such provision shall be deemed
modified if possible, or if not possible, such provision shall
be deemed stricken, and (b) all other provisions shall remain
in full force and effect.
11.2 If the imposition of or any change in any law, rule, or
regulation guideline or the interpretation or application of
any thereof by any court of administrative or governmental
authority (including any request or policy whether or not
having the force of law) shall impose or modify any taxes
(except U.S. federal, state or local income or franchise taxes
imposed on Bank), reserve requirements, capital adequacy
requirements or other obligations which would: (a) increase
the cost to Bank for extending or maintaining any loans and/or
line of credit to which this Agreement relates, (b) reduce the
amounts payable to Bank under this Agreement, such notes and
other instruments, or (c) reduce the rate of return on Bank's
capital as a consequence of Bank's obligations with respect to
any loan and/or line of credit to which this Agreement
relates, then Borrower agrees to pay Bank such additional
amounts as will compensate Bank therefor, within five (5) days
after Bank's written demand for such payment, which demand
shall be accompanied by an explanation of such imposition or
charge and a calculation in reasonable detail of the
additional amounts payable by Borrower, which explanation and
calculations shall be conclusive, absent manifest error.
11.3 Bank may sell participations in or assign the loan in whole or
in part without notice to Borrower and Bank may provide
information regarding the Borrower and this Agreement to any
prospective participant or assignee. If a participation is
sold or the loan is assigned the purchaser will have the right
of set off against the Borrower and may enforce its interest
in the Loan irrespective of any claims or defenses the
Borrower may have against the Bank.
12. Notices. Any notices shall be given in writing to the opposite party's
signature below or as that party may otherwise specify in writing.
13. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
This Business Loan Agreement (Parts A and B) executed by the parties on
19 Borrower acknowledges having read all of the provisions
of this Agreement and Borrower agrees to its terms.
BANK OF AMERICA NW., N.A. doing business as SEAFIRST BANK
Metro Commercial Banking Term #1
(Division/Branch)
By: /s/ Xxxxxxx X. Xxxxxx Name & Title: Xxxxxxx X. Xxxxxx, Vice President
--------------------------------------- ----------------------------------------
Address: 000 Xxxxx Xxxxxx Xxxx, Xxxxx, Xxx: Xxxxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
Tuscany, Inc. dba Tuscany Coffee Roaster and Bagel Bakery
(Borrower)
By: /s/ Xxxxx Xxxxxxx Name & Title: Xxxxx Xxxxxxx, Executive Vice President & CFO
--------------------------------------- ----------------------------------------------
Address: 000 Xxxxx Xxxxxx, Xxxxx 000 Xxxx, Xxxxx, Zip: Xxxxxxx, XX 00000
Phone: (000) 000-0000, Ext. 13 Fax: (000) 000-0000
