CHANGE IN TERMS AGREEMENT
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PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
$800,000.00 04-30-2001 7420045 4A0 71 121
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REFERENCES IN THE SHADED AREA ARE FOR LENDER'S USE ONLY AND DO NOT LIMIT THE
APPLICABILITY OF THIS DOCUMENT TO ANY PARTICULAR LOAN OR ITEM.
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BORROWER: AGATE TECHNOLOGIES, INC. LENDER: CHINATRUST BANK (U.S.A.)
000 XXXXXXXX XXXXXXXXXX XXXXXXXXX XXXXXXX
XXXXXXXX, XX 00000 000 XXXXXX XXXXX
XXXXXXXX, XX 00000
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PRINCIPAL AMOUNT: $800,000.00 DATE OF AGREEMENT: JULY 30, 2000
DESCRIPTION OF EXISTING INDEBTEDNESS. ORIGINAL NOTE DATED 10/05/98 IN THE AMOUNT
OF $2.000,000.00 MATURING 10/05/99. AS AMENDED BY: CHANGE IN TERMS AGREEMENT
DATED 10/05/99 MATURING 04/30/2000; CHANGE IN TERMS AGREEMENT DATED 10/29/99
MATURING 04/30/2000; CHANGE IN TERMS AGREEMENT DATED 03/01/2000 MATURING
04/30/2000; CHANGE IN TERMS AGREEMENT DATED 04/30/2000 IN THE AMOUNT OF
$800,000.00 MATURING 07/30/2000.
DESCRIPTION OF COLLATERAL. COLLATERAL DESCRIBED IN FINANCING STATEMENT, FILED ON
10/15/98 ON AGATE TECHNOLOGIES, INC. UNDER INSTRUMENT #9829560584 AND SAVINGS
DEPOSIT ACCOUNT #00000000 UNDER THE NAME OF AGATE TECHNOLOGIES, INC. IN AN
AMOUNT WHICH IS NOT LESS THAN 5O% OF THE OUTSTANDING LOAN AMOUNT. COLLATERAL
DESCRIBED IN FINANCING STATEMENT, FILED ON EI CORPORATION IS ADDED AS COLLATERAL
ON 5/15/2000 AND CONTINUING GUARANTY BY EI CORPORATION IS ADDED ON 5/15/2000,
DESCRIPTION OF CHANGE IN TERMS. THE MATURITY DATE OF THE LOAN IS CHANGED TO
04/30/2001. THE BUSINESS LOAN AGREEMENT DATED 4/30/2000 IS AMENDED BY BUSINESS
LOAN AGREEMENT DATED 07/30/2000. ALL OTHER TERMS AND CONDITIONS STATED IN BUT
NOT LIMITED TO THE SECURITY AGREEMENT, THE ASSIGNMENT OF DEPOSIT AND ALL OTHER
RELATED LOAN DOCUMENTS NOT MODIFIED HEREWITH WILL REMAIN IN FULL FORCE AND
EFFECT WITHOUT WAIVER OR MODIFICATION OF ANY KIND.
PROMISE TO PAY. AGATE TECHNOLOGIES, INC. ("Borrower") promises to pay to
CHINATRUST BANK (U.S.A.) ("Lender"), or order, in lawful money of the United
States of America, the principal amount of Eight Hundred Thousand & 00/100
Dollars ($800,000.00) or so much as may bc outstanding, together with interest
on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in accordance with the following payment
schedule:
ADVANCES FOR REFINANCING LETTERS OF CREDIT, D/A AND D/P FINANCING, AND
REFINANCING AGAINST VENDER'S INVOICES, WILL HAVE A MATURITY NOT
EXCEEDING 120 DAYS. INTEREST ACCRUED ON EACH ADVANCE WILL BE DUE ON THE
FIRST DAY OF EACH AND EVERY MONTH, PRINCIPAL WILL BE DUE AND PAYABLE ON
THE RESPECTIVE SCHEDULED MATURITY ON EACH ADVANCE.
The annual interest rate for this Agreement is computed on a 365/360 basis; that
is, by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be
applied first to accrued unpaid interest, then to principal, and any remaining
amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change
from time to time based on changes in an independent Index which is the Prime
rate as published in the Wall Street Journal (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans. If the Index become
unavailable during the term of this loan, Lender may designate a substitute
Index after notice to Borrower. Lender will tell Borrower the current Index rate
upon Borrower's request. Borrower understands that Lender may make loans based
on other rates as well. The interest rate change will not occur more often than
each DAY. The Index currently is 9.500%. The Interest rate to be applied to the
unpaid principal balance of this Agreement will be at a rate of 1.250 percentage
points over the Index, resulting in an Initial rate of 10.750%. NOTICE: Under no
circumstances will the interest rate on this Agreement be more than the maximum
rate allowed by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges
are earned fully as of the date of the loan and will not be subject to refund
upon early payment (whether voluntary or as a result of default), except as
otherwise required by law. Except for the foregoing, Borrower, may pay without
penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's Obligation to continue to make payments of accrued unpaid interest.
Rather, they will reduce the principal balance due.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment or $5.00,
whichever is greater.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this
Agreement or any agreement related to this Agreement, or in any other agreement
or loan Borrower has with Lender. (c) Borrower defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of Borrower's property or Borrower's ability to repay this Note or
perform Borrower's obligations under this Note or any of the Related Documents.
(d) Any representation or statement made or furnished to Lender by Borrower or
on Borrower's behalf is false or misleading in any material respect either now
or at the time made or furnished. (e) Borrower becomes insolvent, a receiver is
appointed for any part of Borrower's property, Borrower makes an assignment for
the benefit of creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries
to take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with Lender.
(g) Any guarantor dies or any of the other events described in this default
section occurs with respect to any guarantor of this Agreement. (h) A material
adverse change occurs in Borrower's financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is impaired. (i) Failure
to meet the deadlines required in the Year 2000 Compliance Agreement to be Year
2000 Compliant or a reasonable likelihood that Borrower cannot be Year 2000
Compliant on or before December 31, 1999. (j) Lender in good xxxxx xxxxx itself
insecure.
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this Agreement
within the preceding twelve (12) months, it may be cured (and no event of
default will have occurred) if Borrower, after receiving written notice from
Lender demanding cure of such default: (a) cures the default within fifteen (15)
days; or (b) it the cure requires more than fifteen (15) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be sufficient
to cure the default and thereafter continues and completes all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Agreement and all accrued unpaid interest immediately due,
without notice, and then Borrower will pay that amount. Upon Borrower's failure
to pay call amounts declared due Pursuant to this
07-0-3000 CHANGE IN TERMS AGREEMENT PAGE 2
LOAN NO 7420045 (CONTINUED)
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section, including failure to pay upon final maturity, Lender, at its option,
may also, if permitted under applicable law, do one or both of the following:
(a) increase the variable interest rate of this Agreement to 6.250 percentage
points over the index, and (b) add any unpaid accrued interest to principal and
such sum will bear interest therefrom until paid at the rate provided in this
Agreement (including any increased rate). Lender may hire or pay someone else to
help collect this Agreement if Borrower does not pay. Borrower also will pay
Lender that amount. This includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses whether or not there is a
lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Borrower also
will pay any court costs, in addition to all other sums provided by law. THIS
AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY LENDER IN THE STATE OF
CALIFORNIA. IF THERE IS A LAWSUIT, BORROWER AGREES UPON LENDER'S REQUEST TO
SUBMIT TO THE JURISDICTION OF THE COURTS OF SANTA XXXXX COUNTY, THE STATE OF
CALIFORNIA. SUBJECT TO THE PROVISIONS ON ARBITRATION, THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all XXX and Xxxxx accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Agreement against any and all such accounts.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement may be requested orally by Borrower or by an authorized
person. All oral requests shall be confirmed in writing on the day of the
request. All communications, instructions, or directions by telephone or
otherwise to Lender are to be directed to Lender's office shown above. The
following party or parties are authorized to request advances under the line of
credit until Lender receives from Borrower at Lender's address shown above
written notice of revocation of their authority: XXXXXXX XXXX, CEO; AND XXXXXXX
XXX, CFO. Borrower agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person or (b) credited to any
of Borrower's accounts with Lender. The unpaid principal balance owing on this
Agreement at any time may be evidenced by endorsements on this Agreement or by
Lender's internal records, including daily computer print-outs. Lender will have
no obligation to advance funds under this Agreement if: (a) Borrower or any
guarantor is in default under the terms of this Agreement or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Agreement; (b) Borrower or any guarantor
ceases doing business or is insolvent; (c) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of this
Agreement or any other loan with Lender; (d) Borrower has applied funds provided
pursuant to this Agreement for purposes other than those authorized by Lender;
or (e) Lender in good xxxxx xxxxx itself insecure under this Agreement or any
other Agreement between Lender and Borrower.
ARBITRATION. LENDER AND BORROWER AGREE THAT ALL DISPUTES, CLAIMS AND
CONTROVERSIES BETWEEN THEM, WHETHER INDIVIDUAL, JOINT, OR CLASS IN NATURE,
ARISING FROM THIS AGREEMENT OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONTRACT
AND TORT DISPUTES, SHALL BE ARBITRATED PURSUANT TO THE RULES OF THE AMERICAN
ARBITRATION ASSOCIATION, UPON REQUEST OF EITHER PARTY. No act to take or dispose
of any collateral securing this Agreement shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration agreement. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; invoking a power of sale under any deed of trust or mortgage;
obtaining a writ of attachment or imposition of a receiver; or exercising any
rights relating to personal property, including taking or disposing of such
property with or without judicial process pursuant to Article 9 of the Uniform
Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any collateral securing this Agreement, including any claim to rescind, reform,
or otherwise modify any agreement relating to the collateral securing this
Agreement, shall also be arbitrated, provided however that no arbitrator shall
have the right or the power to enjoin or restrain any act of any party. Lender
and Borrower agree that in the event of an action for judicial foreclosure
pursuant to California Code of Civil Procedure Section 726, or any similar
provision in any other state, the commencement of such an action will not
constitute a waiver of the right to arbitrate and the court shall refer to
arbitration as much of such action, including counterclaims, as lawfully may be
referred to arbitration. Judgment upon any award rendered by any arbitrator may
be entered in any court having jurisdiction. Nothing in this Agreement shall
preclude any party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches, and similar
doctrines which would otherwise be applicable in an action brought by a party
shall be applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of an action for these
purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of
the original obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a satisfaction
of the obligation(s). It is the intention of Lender to retain as liable parties
all makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent
actions.
MISCELLANEOUS PROVISIONS. Lender may delay or forego enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any other
person who signs, guarantees or endorses this Agreement, to the extent allowed
by law, waive any applicable statute of limitations, presentment, demand for
payment, protest and notice of dishonor. Upon any change in the terms of this
Agreement, and unless otherwise expressly stated in writing, no party who signs
this Agreement, whether as maker, guarantor, accommodation maker or endorser,
shall be released from liability. All such parties agree that Lender may renew
or extend (repeatedly and for any length of time) this loan, or release any
party or guarantor or collateral; or impair, fail to realize upon or perfect
Lender's security interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All such parties
also agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made.
07-30-3000 CHANGE IN TERMS AGREEMENT PAGE 3
LOAN NO 7420045 (CONTINUED)
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PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER
AGREES TO THE TERMS OF THE AGREEMENT AND ACKNOWLEDGES RECEIPT OF A COMPLETED
COPY OF THE AGREEMENT.
BORROWER:
AGATE TECHNOLOGIES, INC.
BY: COPY /S/ XXXXXXX XXXX BY: /S/ XXXXXXX XXX
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XXXXXXX XXXX, CEO XXXXXXX XXX, CFO
