AMENDED AND RESTATED STANDARD LOAN AGREEMENT By and Between BANK OF AMERICA, N.A. and POINT.360 Dated as of August 25, 2009
AMENDED
AND RESTATED STANDARD LOAN AGREEMENT
By
and Between
BANK
OF AMERICA, N.A.
and
Dated
as of August 25, 2009
TABLE OF
CONTENTS
Page | ||
1.
|
DEFINITIONS
|
1
|
2.
|
THE
FACILITY: LINE OF CREDIT AMOUNT AND TERMS
|
4
|
2.1.
|
Line
of Credit Amount
|
4
|
|
2.2.
|
Availability
Period
|
4
|
|
2.3.
|
Conditions
to Availability of Credit
|
4
|
|
2.4.
|
Repayment
Terms
|
5
|
|
2.5.
|
Interest
Rate
|
5
|
|
2.6.
|
Optional
Interest Rates
|
5
|
|
2.7.
|
Applicable
Margin
|
5
|
|
2.8.
|
Standby
Letters of Credit
|
6
|
3.
|
OPTIONAL
INTEREST RATE
|
7
|
3.1.
|
Optional
Rates
|
7
|
|
3.2.
|
LIBOR
Rate
|
7
|
4.
|
FEES
AND EXPENSES
|
9
|
4.1.
|
Fees
|
9
|
|
4.2.
|
Expenses
|
10
|
|
4.3.
|
Reimbursement
Costs
|
10
|
5.
|
COLLATERAL
|
10
|
6.
|
DISBURSEMENTS,
PAYMENTS AND COSTS
|
10
|
6.1.
|
Disbursements
and Payments
|
10
|
|
6.2.
|
Telephone
and Telefax Authorization
|
10
|
|
6.3.
|
Direct
Debit
|
11
|
|
6.4.
|
Banking
Days
|
11
|
|
6.5.
|
Interest
Calculation
|
11
|
|
6.6.
|
Default
Rate
|
11
|
|
6.7.
|
Taxes
|
12
|
|
6.8.
|
Overdrafts
|
12
|
|
6.9.
|
Payments
in Kind
|
12
|
i
TABLE OF
CONTENTS
(continued)
7.
|
CONDITIONS
|
12
|
7.1.
|
Authorizations
|
13
|
|
7.2.
|
Governing
Documents
|
13
|
|
7.3.
|
Guaranty
|
13
|
|
7.4.
|
Security
Agreements
|
13
|
|
7.5.
|
Stock
Pledge
|
13
|
|
7.6.
|
Perfection
and Evidence of Priority
|
13
|
|
7.7.
|
Payment
of Fees
|
13
|
|
7.8.
|
Principal
Balance of GECC Term Loan
|
14
|
|
7.9.
|
Good
Standing
|
14
|
|
7.10.
|
Legal
Opinion
|
14
|
|
7.11.
|
Intentionally
Omitted
|
14
|
|
7.12.
|
Landlord
Agreement
|
14
|
|
7.13.
|
Insurance
|
14
|
|
7.14.
|
Other
Required Documentation
|
14
|
|
7.15.
|
Other
Conditions
|
15
|
8.
|
REPRESENTATIONS
AND WARRANTIES
|
15
|
8.1.
|
Formation
|
15
|
|
8.2.
|
Authorization
|
15
|
|
8.3.
|
Enforceable
Agreement
|
16
|
|
8.4.
|
Good
Standing
|
16
|
|
8.5.
|
No
Conflicts
|
16
|
|
8.6.
|
Financial
Information
|
16
|
|
8.7.
|
Lawsuits
|
16
|
|
8.8.
|
Collateral
|
16
|
|
8.9.
|
Permits,
Franchises
|
16
|
|
8.10.
|
Other
Obligations
|
17
|
|
8.11.
|
Tax
Matters
|
17
|
|
8.12.
|
No
Event of Default
|
17
|
|
8.13.
|
Insurance
|
17
|
|
8.14.
|
Governmental
Authorization
|
17
|
ii
TABLE OF
CONTENTS
(continued)
9.
|
COVENANTS
|
17
|
9.1.
|
Use
of Proceeds
|
17
|
|
9.2.
|
Financial
Information
|
18
|
|
9.3.
|
Leverage
Ratio
|
19
|
|
9.4.
|
Basic
Fixed Charge Coverage Ratio
|
19
|
|
9.5.
|
Dividends
and Distributions
|
20
|
|
9.6.
|
Bank
as Principal Depository
|
20
|
|
9.7.
|
Other
Debts
|
20
|
|
9.8.
|
Other
Liens
|
20
|
|
9.9.
|
Maintenance
of Assets
|
21
|
|
9.10.
|
Investments
|
21
|
|
9.11.
|
Loans
|
22
|
|
9.12.
|
Change
of Management
|
22
|
|
9.13.
|
Change
of Control
|
22
|
|
9.14.
|
Additional
Negative Covenants
|
22
|
|
9.15.
|
Notices
to Bank
|
23
|
|
9.16.
|
Insurance
|
24
|
|
9.17.
|
Compliance
with Laws
|
24
|
|
9.18.
|
ERISA
Plans
|
24
|
|
9.19.
|
Books
and Records
|
24
|
|
9.20.
|
Audits
|
25
|
|
9.21.
|
Perfection
of Liens
|
25
|
|
9.22.
|
Cooperation
|
25
|
10.
|
DEFAULT
AND REMEDIES
|
25
|
10.1.
|
Failure
to Pay
|
25
|
|
10.2.
|
Other
Bank Agreements
|
25
|
|
10.3.
|
Cross-default
|
25
|
|
10.4.
|
False
Information
|
26
|
|
10.5.
|
Bankruptcy
|
26
|
|
10.6.
|
Receivers
|
26
|
|
10.7.
|
Lien
Priority
|
26
|
|
10.8.
|
Judgments
|
26
|
|
10.9.
|
Material
Adverse Change
|
26
|
|
10.10.
|
Government
Action
|
26
|
|
10.11.
|
Default
under Related Documents
|
27
|
|
10.12.
|
Other
Breach Under Agreement
|
27
|
iii
TABLE OF
CONTENTS
(continued)
11.
|
ENFORCING
THIS AGREEMENT; MISCELLANEOUS
|
27
|
11.1.
|
Disposition
of Schedules and Reports
|
27
|
|
11.2.
|
Returned
Merchandise
|
27
|
|
11.3.
|
Verification
of Receivables
|
27
|
|
11.4.
|
Waiver
of Confidentiality
|
27
|
|
11.5.
|
GAAP
|
28
|
|
11.6.
|
California
Law
|
28
|
|
11.7.
|
Successors
and Assigns
|
28
|
|
11.8.
|
Arbitration
and Waiver of Jury Trial
|
28
|
|
11.9.
|
Severability;
Waivers
|
30
|
|
11.10.
|
Attorneys’
Fees
|
30
|
|
11.11.
|
One
Agreement
|
30
|
|
11.12.
|
Indemnification
|
31
|
|
11.13.
|
Notices
|
31
|
|
11.14.
|
Headings
|
31
|
|
11.15.
|
Counterparts
|
31
|
iv
AMENDED
AND RESTATED STANDARD LOAN AGREEMENT
This
Amended and Restated Standard Loan Agreement dated as of August 25, 2009, is
entered into by and between Bank of America, N.A. (the “Bank”) and Point.360, a
California corporation (the “Borrower”)m with reference to the following
facts:
RECITALS
A. The
Bank and the Borrower are parties to a Standard Loan Agreement, dated as of
August 7, 2007 (the “Prior Loan Agreement”), pursuant to which the Bank has
provided the Borrower a secured working capital revolving credit facility in the
amount of $8,000,000 and a sub-line of credit of $1,000,000 for the issuance of
standby letters of credit.
B. The
Prior Loan Agreement is scheduled to terminate on August 31, 2009.
C. The
Bank and the Borrower wish to enter into this Agreement, which shall amend,
restate, replace and supersede (but shall not constitute a novation of) the
Prior Loan Agreement and which hereinafter shall govern the terms and conditions
under which the Bank shall provide financing to the Borrower.
NOW,
THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
In
addition to the terms which are defined elsewhere in this Agreement, the
following terms have the respective meanings indicated for the purposes of this
Agreement:
“Acceptable
Receivable” means an account receivable which satisfies the following
requirements:
(a)
|
The
account has resulted from the sale of goods or the performance of services
by the Borrower in the ordinary course of the Borrower’s business and
without any further obligation on the part of the Borrower to service,
repair, or maintain any such goods sold other than pursuant to any
applicable warranty.
|
(b)
|
There
are no conditions which must be satisfied before the Borrower is entitled
to receive payment of the account. Accounts arising from COD
sales, consignments or guaranteed sales are not
acceptable.
|
(c)
|
The
debtor upon the account does not claim any defense to payment of the
account, whether well founded or
otherwise.
|
(d)
|
The
account is not the obligation of an account debtor who has asserted or may
assert any counterclaims or offsets against the Borrower (including
offsets for any “contra accounts” owed by the Borrower to the account
debtor for goods purchased by the Borrower or for services performed for
the Borrower).
|
1
(e)
|
The
account represents a genuine obligation of the debtor for goods sold to
and accepted by the debtor, or for services performed for and accepted by
the debtor. To the extent any credit balances exist in favor of
the debtor, such credit balances shall be deducted from the account
balance.
|
(f)
|
The
account balance does not include the amount of any finance or service
charges payable by the account debtor. To the extent any
finance charges or service charges are included, such amounts shall be
deducted from the account balance.
|
(g)
|
The
Borrower has sent an invoice to the debtor in the amount of the
account.
|
(h)
|
The
Borrower is not prohibited by the laws of the state where the account
debtor is located from bringing an action in the courts of that state to
enforce the debtor’s obligation to pay the account. The
Borrower has taken all appropriate actions to ensure access to the courts
of the state where the account debtor is located, including, where
necessary, the filing of a Notice of Business Activities Report or other
similar filing with the applicable state agency or the qualification by
the Borrower as a foreign corporation authorized to transact business in
such state.
|
(i)
|
The
account is owned by the Borrower free of any title defects or any liens or
interests of others except the security interest in favor of the
Bank.
|
(j)
|
The
debtor upon the account is not any of the
following:
|
|
(i)
|
An
employee, affiliate, parent or subsidiary of the Borrower, or an entity
which has common officers or directors with the
Borrower.
|
|
(ii)
|
The
U.S. government or any agency of department of the U.S. government unless
the Bank agrees in writing to accept the obligation, the Borrower complies
with the procedures in the Federal Assignment of Claims Act of 1940
(41 U.S.C. § 15) with respect to the obligation, and the
underlying contract expressly provides that neither the U.S. government
nor any agency or department thereof shall have the right of set-off
against the Borrower.
|
|
(iii)
|
Any
state, county, city or town or
municipality.
|
|
(iv)
|
Any
person or entity located in a foreign
country.
|
(k)
|
The
account is not in default. An account will be considered in
default if any of the following
occur:
|
(l)
|
The
account is not paid within 90 days from its invoice date or
60 days from its due date, whichever occurs first, provided that,
so long as NewsCorp maintains a credit rating of not lower than BBB by
Standard & Poors, accounts in an aggregate amount at any time of up to
Five Hundred Thousand Dollars ($500,000) owed to the Borrower by 20th
Century Fox may be outstanding for up to 120 days from their invoice date
or 90 days from their due date, whichever occurs
first;
|
2
|
(i)
|
the
debtor obligated upon the account suspends business, makes a general
assignment for the benefit of creditors, or fails to pay its debts
generally as they come due; or
|
|
(ii)
|
any
petition is filed by or against the debtor obligated upon the account
under any bankruptcy law or any other law or laws for the relief of
debtors.
|
|
(iii)
|
The
account is not the obligation of a debtor who is in default (as defined
above) on 50% or more of the accounts upon which such debtor is
obligated.
|
(m)
|
The
account does not arise from the sale of goods which remain in the
Borrower’s possession or under the Borrower’s
control.
|
(n)
|
The
account is not evidenced by a promissory note or chattel paper, nor is the
account debtor obligated to the Borrower under any other obligation which
is evidenced by a promissory note.
|
(o)
|
The
account is otherwise acceptable to the
Bank.
|
In
addition to the foregoing limitations, the dollar amount of accounts included as
Acceptable Receivables which are the obligations of a single debtor shall not
exceed the concentration limit established for that debtor. To the
extent the total of such accounts exceed a debtor’s concentration limit, the
amount of any such excess shall be excluded. The concentration limit
for each debtor shall be equal to 20% of the total amount of the Borrower’s
Acceptable Receivables at that time, provided that, so
long as NewsCorp maintains a credit rating of not lower than BBB by Standard
& Poors, the concentration limit for 20th Century
Fox shall be equal to 45% of the total amount of the Borrower’s Acceptable
Receivables at any time.
“Borrowing Base” means
80% of the balance due on Acceptable Receivables.
After
calculating the Borrowing Base as provided above, the Bank may deduct such
reserves as the Bank may establish from time to time in its reasonable credit
judgment, including, without limitation, reserves for rent at leased locations
subject to statutory or contractual landlord’s liens, dilution, and the amount
of estimated maximum exposure, as determined by the Bank from time to time,
under any interest rate contracts which the Borrower enters into with the Bank
(including interest rate swaps, caps, floors, options thereon, combinations
thereof, or similar contracts).
“Borrowing
Certificate” means a certificate setting forth a calculation of the
Acceptable Receivables and the Borrowing Base, substantially in the form of
Exhibit A
attached hereto.
“Credit Limit” means
the amount of Five Million Dollars ($5,000,000).
"GECC" means General
Electric Capital Corporation.
3
“Guarantor “ means
International Video Conversions, Inc., a California corporation and a
wholly-owned subsidiary of Borrower.
2. THE
FACILITY: LINE OF CREDIT AMOUNT AND TERMS
2.1. Line of Credit
Amount.
(a)
|
During
the availability period described below, the Bank will provide a line of
credit (the “Facility”) to the Borrower. The amount of the
Facility (the “Facility Commitment”) is equal to the lesser of
(i) the Credit Limit or (ii) the Borrowing Base as determined by
the Bank from time to time in accordance with this
Agreement.
|
(b)
|
The
Facility is a revolving line of credit. During the availability
period, the Borrower may repay principal amounts and reborrow
them.
|
(c)
|
The
Borrower agrees not to permit the principal balance outstanding to exceed
the Facility Commitment. If the Borrower exceeds this limit,
the Borrower will immediately pay the excess to the Bank upon the Bank’s
demand.
|
2.2. Availability
Period.
The
Facility is available between the date hereof and October 31, 2010, or such
earlier date as the availability may terminate as provided in this Agreement (as
applicable, the “Facility Expiration Date”).
The
availability period for the Facility will be considered renewed if and only if
the Bank has sent to the Borrower a written notice of renewal effective as of
the Facility Expiration Date for the Facility (the “Renewal
Notice”). If the Facility is renewed, it will continue to be subject
to all the terms and conditions set forth in this Agreement except as modified
by the Renewal Notice. If the Facility is renewed, the term
“Expiration Date” shall mean the date set forth in the Renewal Notice as the
Expiration Date and the same process for renewal will apply to any subsequent
renewal of the Facility. A renewal fee may be charged at the Bank’s
option. The amount of the renewal fee will be specified in the
Renewal Notice.
2.3. Conditions to Availability
of Credit.
In
addition to the items required to be delivered to the Bank under the paragraph
entitled “Financial Information” in the “Covenants” section of this Agreement,
the Borrower will promptly deliver the following to the Bank at such times as
may be requested by the Bank:
(a)
|
A
borrowing certificate, in form and detail satisfactory to the Bank,
setting forth the Acceptable Receivables on which the requested extension
of credit is to be based.
|
(b)
|
Copies
of the invoices or the record of invoices from the Borrower’s sales
journal for such Acceptable Receivables and a listing of the names and
addresses of the debtors obligated
thereunder.
|
4
(c)
|
Copies
of the delivery receipts, purchase orders, shipping instructions, bills of
lading and other documentation pertaining to such Acceptable
Receivables.
|
(d)
|
Copies
of the cash receipts journal pertaining to the borrowing
certificate.
|
2.4. Repayment
Terms.
(a)
|
The
Borrower will pay interest on September 1, 2009, and then on the first day
of each month thereafter until payment in full of any principal
outstanding under the Facility.
|
(b)
|
The
Borrower will repay in full any principal, interest or other charges
outstanding under the Facility no later than the Facility Expiration
Date.
|
(c)
|
Any
interest period for an optional interest rate (as described below) shall
expire no later than the Facility Expiration
Date.
|
2.5. Interest
Rate.
(a)
|
The
interest rate is a rate per year equal to the Bank’s Prime Rate plus the
Applicable Margin as defined below.
|
(b)
|
The
Prime Rate is the rate of interest publicly announced from time to time by
the Bank as its Prime Rate. The Prime Rate is set by the Bank
based on various factors, including the Bank’s costs and desired return,
general economic conditions and other factors, and is used as a reference
point for pricing some loans. The Bank may price loans to its
customers at, above, or below the Prime Rate. Any change in the
Prime Rate shall take effect at the opening of business on the day
specified in the public announcement of a change in the Bank’s Prime
Rate.
|
2.6. Optional Interest
Rates.
Instead
of the interest rate based on the rate stated in the paragraph entitled
“Interest Rate” above, the Borrower may elect the optional interest rate listed
below for the Facility during interest periods agreed to by the Bank and the
Borrower. The optional interest rate shall be subject to the terms
and conditions described later in this Agreement. Any principal
amount bearing interest at the optional rate under this Agreement is referred to
as a “Portion.” The following optional interest rate is
available:
The LIBOR
Rate plus the Applicable Margin as defined below.
2.7. Applicable
Margin.
For the
period commencing on the date of this Agreement and ending on the date the Bank
receives a compliance certificate and financial statement for the Borrower's
fiscal quarter ending September 30, 2009 (the “Initial Pricing Period”), the
Applicable Margin for advances bearing interest on the basis of the Prime Rate
shall be minus
one-quarter (0.25) percentage point per annum and the Applicable Margin for
advances bearing interest on the basis of the LIBOR Rate shall be plus two and
one-quarter (2.25) percentage points per annum. Following the Initial
Pricing Period, the Applicable Margin shall be the following amounts per annum,
based upon the Fixed Charge Coverage Ratio (as defined in the “Covenants”
section of this Agreement), as set forth in the most recent compliance
certificate (or, if no compliance certificate is required, the Borrower’s most
recent financial statements) received by the Bank as required in the Covenants
section:
5
Applicable
Margin
(in
percentage points per annum)
|
|||
Pricing
Level
|
Fixed
Charge Coverage Ratio
|
Prime
Rate +/-
|
LIBOR
RATE +
|
1
|
<
1.15x
|
0.50
|
3.00
|
2
|
<
1.25x
|
0.25
|
2.75
|
3
|
<
1.35x
|
0.0
|
2.50
|
4
|
<
1.50x
|
(0.25)
|
2.25
|
5
|
>
1.50x
|
(0.50)
|
2.00
|
Except
during the Initial Pricing Period, the Applicable Margin shall be in effect from
the date the most recent compliance certificate or financial statement is
received by the Bank until the date the next compliance certificate or financial
statement is received; provided, however, that if the Borrower fails to timely
deliver the next compliance certificate or financial statement, the Applicable
Margin from the date such compliance certificate or financial statement was due
until the date such compliance certificate or financial statement is received by
the Bank shall be the highest pricing level set forth above.
2.8. Standby Letters of
Credit.
(a)
|
During
the availability period, at the request of the Borrower, the Bank will
issue standby letters of credit with a maximum maturity of 365 days but
not to extend beyond the Facility Expiration Date. The standby
letters of credit may include a provision providing that the maturity date
will be automatically extended each year for an additional year unless the
Bank gives written notice to the contrary; provided, however, that each
standby letter of credit must include a final maturity date of not later
than one hundred eighty (180) days after the Facility Expiration Date and
which will not be subject to automatic
extension.
|
(b)
|
The
amount of the standby letters of credit outstanding at any one time
(including the drawn and unreimbursed amounts of the standby letters of
credit) may not exceed One Million Dollars
($1,000,000).
|
(c)
|
In
calculating the principal amount outstanding under the Facility
Commitment, the calculation shall include the amount of any standby
letters of credit outstanding, including amounts drawn on any standby
letters of credit and not yet
reimbursed.
|
(d)
|
The
Borrower agrees:
|
6
|
(i)
|
Any
sum drawn under a standby letter of credit may, at the option of the Bank,
be added to the principal amount outstanding under this
Agreement. The amount will bear interest and be due as
described elsewhere in this
Agreement.
|
|
(ii)
|
If
there is a default under this Agreement, to immediately prepay and make
the Bank whole for any outstanding standby letters of
credit.
|
|
(iii)
|
The
issuance of any standby letter of credit and any amendment to a standby
letter of credit is subject to the Bank’s written approval and must be in
form and content satisfactory to the Bank and in favor of a beneficiary
acceptable to the Bank.
|
|
(iv)
|
To
sign the Bank’s form Application and Agreement for Standby Letter of
Credit.
|
|
(v)
|
To
pay any issuance and/or other fees that the Bank notifies the Borrower
will be charged for issuing and processing standby letters of credit for
the Borrower.
|
|
(vi)
|
To
allow the Bank to automatically charge its checking account for applicable
fees, discounts, and other charges.
|
|
(vii)
|
To
pay the Bank a non-refundable fee equal to one and one-half percent (1.5%)
per annum of the outstanding undrawn amount of each standby letter of
credit, payable annually in advance, calculated on the basis of the face
amount outstanding on the day the fee is calculated. If there
is a default under this Agreement, at the Bank’s option, the amount of the
fee shall be increased to six percent (6%) per annum, effective starting
on the day the Bank provides notice of the increase to the
Borrower.
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3. OPTIONAL
INTEREST RATE
3.1. Optional
Rates.
The
optional interest rate provided for in Paragraph 1.7 is a rate per
year. Interest will be paid on the first day of the first month
following the commencement of the applicable interest period, and then on the
same day of each month thereafter until payment
in full of any principal outstanding under this Agreement. No Portion
will be converted to a different interest rate during the applicable interest
period. Upon the occurrence of an event of default under this
Agreement, the Bank may terminate the availability of the optional interest rate
for interest periods commencing after the default occurs. At the end
of any interest period, the interest rate will revert to the rate stated in the
paragraph(s) entitled “Interest Rate” above, unless the Borrower has designated
another optional interest rate for the Portion.
3.2. LIBOR
Rate.
The
election of the LIBOR Rate shall be subject to the following terms and
requirements:
7
(a)
|
The
interest period during which the LIBOR Rate will be in effect will be 30,
60 or 90 days or one year. The first day of the interest period
must be a day other than a Saturday or a Sunday on which banks are open
for business in New York and London and dealing in offshore dollars (a
“LIBOR Banking Day”). The last day of the interest period and
the actual number of days during the interest period will be determined by
the Bank using the practices of the London inter-bank
market.
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(b)
|
Each
LIBOR Rate Portion will be for an amount not less than Five Hundred
Thousand Dollars ($500,000).
|
(c)
|
The
“LIBOR Rate” means the interest rate determined by the following
formula. (All amounts in the calculation will be determined by
the Bank as of the first day of the interest
period.)
|
LIBOR
Rate = London
Inter-Bank Offered Rate
(1.00 - Reserve Percentage)
Where,
|
(i)
|
“London
Inter-Bank Offered Rate” means, for any applicable interest period, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as selected by the Bank from time to
time) at approximately 11:00 a.m. London time two (2) London Banking Days
before the commencement of the interest period, for U.S. Dollar deposits
(for delivery on the first day of such interest period) with a term
equivalent to such interest period. If such rate is not
available at such time for any reason, then the rate for that interest
period will be determined by such alternate method as reasonably selected
by the Bank. A “London Banking Day” is a day on which banks in
London are open for business and dealing in offshore
dollars.
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|
(ii)
|
“Reserve
Percentage” means the total of the maximum reserve percentages for
determining the reserves to be maintained by member banks of the Federal
Reserve System for Eurocurrency Liabilities, as defined in Federal Reserve
Board Regulation D, rounded upward to the nearest 1/100 of one
percent. The percentage will be expressed as a decimal, and
will include, but not be limited to, marginal, emergency, supplemental,
special, and other reserve
percentages.
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(d)
|
The
Borrower shall irrevocably request a LIBOR Rate Portion no later than
12:00 noon Pacific time on the LIBOR Banking Day preceding the day on
which the London Inter-Bank Offered Rate will be set, as specified
above. For example, if there are no intervening holidays or
weekend days in any of the relevant locations, the request must be made at
least three days before the LIBOR Rate takes
effect.
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8
(e)
|
The
Bank will have no obligation to accept an election for a LIBOR Rate
Portion if any of the following described events has occurred and is
continuing:
|
|
(i)
|
Dollar
deposits in the principal amount, and for periods equal to the interest
period, of a LIBOR Rate Portion are not available in the London inter-bank
market; or
|
|
(ii)
|
the
LIBOR Rate does not accurately reflect the cost of a LIBOR Rate
Portion.
|
(f)
|
Each
prepayment of a LIBOR Rate Portion, whether voluntary, by reason of
acceleration or otherwise, will be accompanied by the amount of accrued
interest on the amount prepaid and a prepayment fee as described
below. A “prepayment” is a payment of an amount on a date
earlier than the scheduled payment date for such amount as required by
this Agreement.
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(g)
|
The
prepayment fee shall be in an amount sufficient to compensate the Bank for
any loss, cost or expense incurred by it as a result of the prepayment,
including any loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain
such Portion or from fees payable to terminate the deposits from which
such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by the Bank in connection with the
foregoing. For purposes of this paragraph, the Bank shall be
deemed to have funded each Portion by a matching deposit or other
borrowing in the applicable interbank market, whether or not such Portion
was in fact so funded.
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4. FEES
AND EXPENSES
4.1. Fees.
(a)
|
Closing
Fee. The Borrower agrees to pay a one-time loan fee in
the amount of Thirty-Seven Thousand Five Hundred Dollars
($37,500). This fee is due on the date of this
Agreement. The Borrower acknowledges and agrees that the Bank
may effect payment of this fee when due by charging the full amount
thereof either to the Facility or to the Borrower’s designated deposit
account with the Bank.
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(b)
|
Unused Commitment
Fee. The Borrower agrees to pay a fee on any difference
between the Facility Commitment and the amount of credit it actually uses,
determined by the average of the daily amount of credit outstanding during
the specified period. The fee will be calculated at 0.50% per
year. The calculation of credit outstanding shall include the
undrawn amount of letters of credit. This fee is due in arrears
on September 1, 2009, and on the same day of each following quarter in arrears until
the expiration of the availability
period.
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(c)
|
Waiver
Fee. If the Bank, at its discretion, agrees to waive or
amend any terms of this Agreement, the Borrower will, at the Bank’s
option, pay the Bank a fee for each waiver or amendment in an amount
advised by the Bank at the time the Borrower requests the waiver or
amendment. Nothing in this paragraph shall imply that the Bank
is obligated to agree to any waiver or amendment requested by the
Borrower. The Bank may impose additional requirements as a
condition to any waiver or
amendment.
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9
(d)
|
Late
Fee. To the extent permitted by law, the Borrower agrees
to pay a late fee in an amount not to exceed four percent (4%) of any
payment that is more than fifteen (15) days late. The
imposition and payment of a late fee shall not constitute a waiver of the
Bank’s rights with respect to the default, including Bank’s right to
charge interest at the default interest rate provided for in Section
6.6.
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4.2. Expenses.
The
Borrower agrees to immediately repay the Bank for expenses that include, but are
not limited to, filing, recording and search fees, appraisal fees, title report
fees, and documentation fees.
4.3. Reimbursement
Costs.
(a)
|
The
Borrower agrees to reimburse the Bank for any expenses it incurs in the
preparation of this Agreement and any agreement or instrument required by
this Agreement. Expenses include, but are not limited to,
reasonable attorneys’ fees, including any allocated costs of the Bank’s
in-house counsel to the extent permitted by applicable
law.
|
(b)
|
The
Borrower agrees to reimburse the Bank for the cost of periodic field
examinations of the Borrower’s books, records and collateral, and
appraisals of the collateral, at such intervals as the Bank may reasonably
require. The actions described in this paragraph may be
performed by employees of the Bank or by independent
appraisers.
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5. COLLATERAL
The
timely payment and performance of the Borrower’s obligations to the Bank under
this Agreement are secured by a security interest in the Collateral described in
the Security Agreement, of even date herewith, by and between the Borrower and
the Bank.
6. DISBURSEMENTS,
PAYMENTS AND COSTS
6.1. Disbursements and
Payments.
(a)
|
Each
payment by the Borrower will be made in U.S. Dollars and immediately
available funds by direct debit to a deposit account as specified
below.
|
(b)
|
Each
disbursement by the Bank and each payment by the Borrower will be
evidenced by records kept by the Bank. In addition, the Bank
may, at its discretion, require the Borrower to sign one or more
promissory notes.
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6.2. Telephone and Telefax
Authorization.
(a)
|
The
Bank may honor telephone or telefax instructions for advances or
repayments or
for the designation of optional interest rates and telefax requests for
the issuance of letters of credit given, or purported to be given, by any
one of the individuals authorized to sign loan agreements on behalf of the
Borrower, or any other individual designated by any one of such authorized
signers.
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10
(b)
|
Advances
will be deposited in and repayments will be withdrawn from the Borrower’s
designated deposit account with the Bank (the “Designated Bank
Account”).
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(c)
|
The
Borrower will indemnify and hold the Bank harmless from all liability,
loss, and costs in connection with any act resulting from telephone or
telefax instructions the Bank reasonably believes are made by any
individual authorized by the Borrower to give such
instructions. This paragraph will survive this Agreement’s
termination, and will benefit the Bank and its officers, employees, and
agents.
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6.3. Direct
Debit.
(a)
|
The
Borrower agrees that interest and principal payments and any fees will be
deducted automatically on the due date from the Designated Deposit
Account.
|
(b)
|
The
Borrower will maintain sufficient funds in the account on the dates the
Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date the Bank enters any debit
authorized by this Agreement, the Bank may reverse the
debit.
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6.4. Banking
Days.
Unless
otherwise provided in this Agreement, a banking day is a day other than a
Saturday, Sunday or other day on which commercial banks are authorized to close,
or are in fact closed, in the state where the Bank’s lending office is located,
and, if such day relates to amounts bearing interest at an offshore rate (if
any), means any such day on which dealings in dollar deposits are conducted
among banks in the offshore dollar interbank market. All payments and
disbursements which would be due on a day which is not a banking day will be due
on the next banking day. All payments received on a day which is not
a banking day will be applied to the credit on the next banking
day.
6.5. Interest
Calculation.
Except as
otherwise stated in this Agreement, all interest and fees, if any, will be
computed on the basis of a 360-day year and the actual number of days
elapsed. This results in more interest or a higher fee than if a
365-day year is used. Installments of principal which are not paid
when due under this Agreement shall continue to bear interest until
paid.
6.6. Default
Rate.
Upon the
occurrence of any default or after maturity or after judgment has been rendered
on any obligation under this Agreement, all amounts outstanding under this
Agreement, including any interest, fees, or costs which are not paid when due,
will at the option of the Bank bear interest at a rate which is 2.0 percentage
points higher than the rate of interest otherwise provided under this
Agreement. This may result in compounding of
interest. This will not constitute a waiver of any
default.
11
6.7. Taxes.
If any
payments to the Bank under this Agreement are made from outside the United
States, the Borrower will not deduct any foreign taxes from any payments it
makes to the Bank. If any such taxes are imposed on any payments made
by the Borrower (including payments under this paragraph), the Borrower will pay
the taxes and will also pay to the Bank, at the time interest is paid, any
additional amount which the Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such taxes had not been
imposed. The Borrower will confirm that it has paid the taxes by
giving the Bank official tax receipts (or notarized copies) within thirty (30)
days after the due date.
6.8. Overdrafts.
At the
Bank’s sole option in each instance, the Bank may do one of the
following:
(a)
|
The
Bank may make advances under this Agreement to prevent or cover an
overdraft on any account of the Borrower with the Bank. Each
such advance will accrue interest from the date of the advance or the date
on which the account is overdrawn, whichever occurs first, at the interest
rate described in this Agreement. The Bank may make such
advances even if the advances may cause any credit limit under this
Agreement to be exceeded.
|
(b)
|
The
Bank may reduce the amount of credit otherwise available under this
Agreement by the amount of any overdraft on any account of the Borrower
with the Bank.
|
This
paragraph shall not be deemed to authorize the Borrower to create overdrafts on
any of the Borrower’s accounts with the Bank.
6.9. Payments in
Kind.
If the
Bank requires delivery in kind of the proceeds of collection of the Borrower’s
accounts receivable, such proceeds shall be credited to interest, principal, and
other sums owed to the Bank under this Agreement in the order and proportion
determined by the Bank in its sole discretion. All such credits will
be conditioned upon collection and any returned items may, at the Bank’s option,
be charged to the Borrower.
7. CONDITIONS
Before
the Bank is required to extend any credit to the Borrower under this Agreement,
it must receive any documents and other items it may reasonably require, in form
and content acceptable to the Bank, including any items specifically listed
below.
12
7.1. Authorizations.
Evidence
that the execution, delivery and performance by the Borrower of this Agreement
and/or any instrument or agreement required under this Agreement to which the
Borrower is a party have been duly authorized by the Borrower.
7.2. Governing
Documents.
Certification
from the secretary of the Borrower that there have been no changes to the
organizational documents of the Borrower from the copies of those documents
delivered by the Borrower in conjunction with the Prior Loan
Agreement.
7.3. Guaranty.
Written
confirmation from the Guarantor that the continuing guaranty executed by the
Guarantor in favor of the Bank in conjunction with the Prior Loan Agreement
remains in full force and effect and hereinafter shall apply to the Borrower’s
indebtedness, liabilities and obligations under this Agreement.
7.4. Security
Agreements.
Written
confirmation from an authorized officer of the Borrower and the Guarantor that
the respective security agreements executed by the Borrower and the Guarantor in
favor of the Bank in conjunction with the Prior Loan Agreement shall remain in
full force and effect and hereinafter shall secure the payment and performance
of the Borrower’s indebtedness, liabilities and obligations to the Bank under
this Agreement.
7.5. Stock
Pledge.
Written
confirmation from an authorized officer of the Borrower that the stock pledge
agreement executed by the Borrower in favor of the Bank in conjunction with the
Prior Loan Agreement covering all of the capital stock of the Guarantor shall
remain in full force and effect and hereinafter shall secure the payment and
performance of the Borrower’s indebtedness, liabilities and obligations to the
Bank under this Agreement.
7.6. Perfection and Evidence of
Priority.
Evidence
that the security interests and liens created in favor of the Bank in
conjunction with the Prior Loan Agreement continue to be valid, enforceable,
properly perfected in a manner acceptable to the Bank, and prior to all others’
rights and interests, except those the Bank previously consented to in
writing.
7.7. Payment of
Fees.
Payment
of all fees and other amounts due and owing to the Bank, including without
limitation payment of all accrued and unpaid expenses incurred by the Bank as
required by the paragraph entitled “Reimbursement Costs.”
13
7.8. Principal Balance of GECC
Term Loan.
Confirmation
from the Borrower that as of the date of this Agreement the outstanding
principal amount of the GECC Term Loan is Two Million Eight Hundred Thirty-Eight
Thousand Six Hundred Eleven Dollars ($2,838,611).
7.9. Good
Standing.
Certificates
of good standing for the Borrower from the State of California and from any
other state in which the Borrower is required to qualify to conduct its
business.
7.10. Legal
Opinion.
A written
opinion from legal counsel to the Borrower, covering such matters as the Bank
may require. The legal counsel and the terms of the opinion must be
acceptable to the Bank.
7.11. Intentionally
Omitted.
7.12. Landlord
Agreement.
The
landlord waiver signed by the lessor of the Borrower’s leased facility located
at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 in conjunction with the Prior Loan
Agreement shall be in effect on the date of this Agreement or the Bank shall
have established a reserve against borrowing availability under the Facility in
an amount equal to three (3) months rent for such facility.
7.13. Insurance.
Evidence
of insurance coverage, as required in the “Covenants” section of this
Agreement.
7.14. Other Required
Documentation.
(a)
|
Secretary
Certificate. A secretary certificate from the secretary
of the Borrower, attaching the authorizations required by Paragraph 7.1,
the organizational documents required by Paragraph 7.2, signatures and
incumbency information regarding officers and such other information as
the Bank may reasonably request.
|
(b)
|
Closing Date Borrowing
Certificate. A completed borrowing certificate on the
Bank’s standard form, demonstrating the Borrower’s borrowing base as of
the month end immediately preceding the date of this
Agreement.
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(c)
|
Closing Date
Compliance Certificate. A completed compliance
certificate on the Bank’s standard form, demonstrating that as of the date
of this Agreement, the Borrower is in compliance with all of the financial
covenants required under this
Agreement.
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(d)
|
Additional
Information. The Bank shall have received and been
satisfied with its review of such additional information relating to
litigation, tax, accounting, labor, insurance, material contracts,
contingent liabilities and management matters affecting the Borrower and
the Guarantor as the Bank may reasonably
request.
|
14
7.15. Other
Conditions.
(a)
|
Satisfactory Updated
Field Examination. The Bank shall have completed and
been satisfied with the results of an updated field examination of the
Borrower’s assets and books and
records.
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(b)
|
Satisfactory Due
Diligence Review. The Bank shall have completed and been
satisfied with the results of its due diligence review, including a
satisfactory review of the terms and conditions of all of the Borrower’s
related party debt, the Borrower’s sources of
funds.
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(c)
|
No Material Adverse
Change. There shall not have occurred a material adverse
change in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Borrower and its subsidiaries taken as a whole or in the facts and
information regarding such entities as indicated on the audited financial
statements for the Borrower’s fiscal year ended June 30, 2008 other than
as described to the Bank (goodwill impairment and non-recurring cash and
non-cash charges).
|
(d)
|
No Material Adverse
Litigation. There shall not be as of the date of this
Agreement any action, suit, investigation or proceeding pending or
threatened in any court or before any arbitrator or governmental authority
that purports (i) to materially and adversely affect the Borrower or its
subsidiaries, or (ii) to affect any transaction contemplated hereby or the
ability of the Borrower or its subsidiaries or any other guarantor to
perform their respective obligations under this Agreement or any of the
other loan documents entered into in connection with this
Agreement.
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8. REPRESENTATIONS
AND WARRANTIES
When the
Borrower signs this Agreement, and until the Bank is repaid in full, the
Borrower makes the following representations and warranties. Each
request for an extension of credit constitutes a renewal of these
representations and warranties as of the date of the request:
8.1. Formation.
The
Borrower is a corporation organized under the laws of the State of
California.
8.2. Authorization.
This
Agreement, and any instrument or agreement required hereunder, are within the
Borrower’s powers, have been duly authorized, and do not conflict with any of
its organizational papers.
15
8.3. Enforceable
Agreement.
This
Agreement is a legal, valid and binding agreement of the Borrower, enforceable
against the Borrower in accordance with its terms, and any instrument or
agreement required hereunder, when executed and delivered, will be similarly
legal, valid, binding and enforceable.
8.4. Good
Standing.
In each
state in which the Borrower does business, it is properly licensed, in good
standing, and, where required, in compliance with fictitious name
statutes.
8.5. No
Conflicts.
This
Agreement does not conflict with any law, agreement, or obligation by which the
Borrower is bound.
8.6. Financial
Information.
All
financial and other information that has been or will be supplied to the Bank is
sufficiently complete to give the Bank accurate knowledge of the Borrower’s (and
the Guarantor’s) financial condition, including all material contingent
liabilities. Since the date of the most recent financial statement
provided to the Bank, there has been no material adverse change in the business
condition (financial or otherwise), operations, properties or prospects of the
Borrower (or the Guarantor) other than as described in Section
7.15(c). If the Borrower is comprised of the trustees of a trust, the
foregoing representations shall also pertain to the trustor(s) of the
trust.
8.7. Lawsuits.
There is
no lawsuit, tax claim or other dispute pending or threatened against the
Borrower which, if lost, would impair the Borrower’s financial condition or
ability to repay the loan, except as have been disclosed in writing to the
Bank.
8.8. Collateral.
All
collateral required in this Agreement is owned by the grantor of the security
interest free of any title defects or any liens or interests of others, except
those which have been approved by the Bank in writing.
8.9. Permits,
Franchises.
The
Borrower possesses all permits, memberships, franchises, contracts and licenses
required and all trademark rights, trade name rights, patent rights, copyrights,
and fictitious name rights necessary to enable it to conduct the business in
which it is now engaged.
16
8.10. Other
Obligations.
The
Borrower is not in default on any obligation for borrowed money, any purchase
money obligation or any other material lease, commitment, contract, instrument
or obligation, except as have been disclosed in writing to the
Bank.
8.11. Tax
Matters.
The
Borrower has no knowledge of any pending assessments or adjustments of its
income tax for any year and all taxes due have been paid, except as have been
disclosed in writing to the Bank.
8.12. No Event of
Default.
There is
no event which is, or with notice or lapse of time or both would be, a default
under this Agreement.
8.13. Insurance.
The
Borrower has obtained, and maintained in effect, the insurance coverage required
in the “Covenants” section of this Agreement.
8.14. Governmental
Authorization.
No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any governmental authority (including, without limitation, any
nation, state or other political subdivision thereof, any central bank, and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions, and any corporation or other entity owned or controlled by any of the
foregoing) is necessary or required in connection with the execution, delivery
or performance by, or enforcement against, the Borrower of this Agreement or any
other instrument or agreement required hereunder.
9. COVENANTS
The
Borrower agrees, so long as credit is available under this Agreement and until
the Bank is repaid in full:
9.1. Use of
Proceeds.
(a)
|
To
use the proceeds of the Facility only for working capital and general
corporate purposes and for the issuance of standby letters of
credit.
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(b)
|
The
proceeds of the credit extended under this Loan Agreement may not be used
directly or indirectly to purchase or carry any “margin stock” as that
term is defined in Regulation U of the Board of Governors of the Federal
Reserve System, or extend credit to or invest in other parties for the
purpose of purchasing or carrying any such “margin stock,” or to reduce or
retire any indebtedness incurred for such
purpose.
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17
9.2. Financial
Information.
To
provide the following financial information and statements in form and content
acceptable to the Bank, and such additional information as requested by the Bank
from time to time:
(a)
|
A
Borrowing Certificate as of the last day of each month within twenty (20)
days after month end and, upon the Bank’s request, copies of the invoices
or the record of invoices from the Borrower’s sales journal for the
Borrower’s Acceptable Receivables and a listing of the names and addresses
of the debtors obligated thereunder, copies of the delivery receipts,
purchase orders, shipping instructions, bills of lading and other
documentation pertaining to such Acceptable Receivables, and copies of the
cash receipts journal pertaining to the Borrowing
Certificate.
|
(b)
|
Upon
the Bank's request, a detailed aging of the Borrower’s receivables by
invoice or a summary aging by account debtor, as specified by the
Bank.
|
(c)
|
Upon
the Bank's request, a summary aging by vendor of accounts
payable.
|
(d)
|
If
the Bank requires the Borrower to deliver the proceeds of accounts
receivable to the Bank upon collection by the Borrower, a schedule of the
amounts so collected and delivered to the
Bank.
|
(e)
|
Upon
the Bank’s request, a listing of the names and addresses of all debtors
obligated upon the Borrower’s accounts
receivable.
|
(f)
|
Copies
of all letters of credit issued in support of the Borrower’s accounts
receivable.
|
(g)
|
Promptly
upon the Bank’s request, such other books, records, statements, lists of
property and accounts, budgets, forecasts or reports as to the Borrower
and the Guarantor as the Bank may
request.
|
(h)
|
Within
90 days after the Borrower’s fiscal year end, the annual financial
statements of the Borrower. These financial statements must be
audited (with an opinion satisfactory to the Bank) by a Certified Public
Accountant acceptable to the Bank. The statements shall be
prepared on a consolidated basis.
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(i)
|
Within
45 days after the period’s end in the case of the first three fiscal
quarters of each fiscal year of the Borrower and within 60 days after the
end of the fourth fiscal quarter of each such fiscal year, quarterly
financial statements of the Borrower, certified and dated by an authorized
financial officer. These financial statements may be
company-prepared. The statements shall be prepared on a
consolidated basis.
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(j)
|
Promptly,
upon sending or receipt, copies of any management letters and
correspondence relating to management letters, sent or received by the
Borrower to or from the Borrower’s auditor. If no management
letter is prepared, the Bank may, in its discretion, request a letter from
such auditor stating that no deficiencies were noted that would otherwise
be addressed in a management
letter.
|
18
(k)
|
Copies
of the Form 10-K Annual Report, Form 10-Q Quarterly Report and Form 8-K
Current Report for the Borrower concurrent with the date of filing with
the Securities and Exchange
Commission.
|
(l)
|
Financial
projections covering a time period acceptable to the Bank and specifying
the assumptions used in creating the projections. The
projections shall be provided to the Bank no less often than 45 days after
the end of each fiscal year.
|
(m)
|
Within
45 days after the end of each fiscal quarter, a compliance
certificate of the Borrower, signed by an authorized financial officer and
setting forth (i) the information and computations (in sufficient detail)
to establish that the Borrower is in compliance with all financial
covenants at the end of the period covered by the financial statements
then being furnished and (ii) whether there existed as of the date of such
financial statements and whether there exists as of the date of the
certificate, any default under this Agreement and, if any such default
exists, specifying the nature thereof and the action the Borrower is
taking and proposes to take with respect
thereto.
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9.3. Leverage
Ratio.
To
maintain on a consolidated basis a Leverage Ratio of at least
1.75:1.0.
“Leverage
Ratio” means the ratio of (a) the total assets of the Borrower (excluding
goodwill and other intangible assets of the Borrower) to (b) the total
liabilities of the Borrower (excluding the deferred gain on the sale of the
Borrower’s so-called “Media Center” property).
This
ratio will be calculated at the end of each fiscal quarter of the
Borrower.
9.4. Basic Fixed Charge Coverage
Ratio.
To
maintain on a consolidated basis a Basic Fixed Charge Coverage Ratio of at least
1.1:1.0.
“Basic
Fixed Charge Coverage Ratio” means the ratio of (a) the sum of EBITDA plus
lease expense and rent expense to (b) the sum of income taxes (to the
extent paid in cash), interest expense, lease expense, rent expense, the current
portion of long term debt (excluding amounts outstanding under the Facility) and
the current portion of capitalized lease obligations.
“EBITDA”
means net income, less income or plus loss from discontinued operations and
extraordinary items, plus income taxes, plus interest expense, plus
depreciation, depletion, amortization, Sarbanes Oxley Act-related cash expenses
incurred between December 2008 and June 2009 of no more than $1,100,000 and
other non-recurring, non-cash charges, provided that any
such non-recurring, non-cash charges if incurred after June 30, 2009 shall be
approved by the Bank.
This
ratio will be calculated at the end of each fiscal quarter of the Borrower,
using the results of the twelve-month period ending with that fiscal
quarter. The current portion of long-term liabilities will be
measured as of the last day of the calculation period.
19
9.5. Dividends and
Distributions.
Not to
declare or pay any dividends (except dividends paid in capital stock),
redemptions of stock or membership interests, distributions and withdrawals (as
applicable) to its owners.
9.6. Bank as Principal
Depository.
To
maintain the Bank as its principal depository bank, including for the
maintenance of business, cash management, operating and administrative deposit
accounts.
9.7. Other
Debts.
Not to
have outstanding or incur any direct or contingent liabilities (other than those
to the Bank), or become liable for the liabilities of others, without the Bank’s
written consent. This does not prohibit:
(a)
|
Acquiring
goods, supplies, or merchandise on normal trade
credit.
|
(b)
|
Endorsing
negotiable instruments received in the usual course of
business.
|
(c)
|
The
Borrower’s term loan indebtedness to GECC, the aggregate outstanding
principal amount of which on the date of this Agreement is Two Million
Eight Hundred Thirty-Eight Thousand Six Hundred Eleven Dollars
($2,838,611).
|
(d)
|
Obtaining
surety bonds in the usual course of
business.
|
(e)
|
Liabilities,
lines of credit and leases in existence on the date of this Agreement
disclosed in writing to the Bank.
|
(f)
|
The
Borrower’s term loan indebtedness to Xxxxxx Brothers (“Xxxxxx”) in an
original principal amount of up to $6,400,000 (the “Xxxxxx Loan”),
incurred by the Borrower to finance the purchase of the Borrower’s leased
facility located at 0000 Xxxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx (the “Burbank
Facility”).
|
(g)
|
Additional
debts and lease obligations for the acquisition of fixed assets, to the
extent permitted elsewhere in this
Agreement.
|
(h)
|
The
Borrower’s term loan indebtedness to X.X. Xxxxxx Trust (“Xxxxxx”) in an
original principal amount of up to $3,562,500 (the “Xxxxxx Loan”),
incurred by the Borrower to finance the purchase of the Borrower’s
facility located at 0000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx (the “Vine
Facility”).
|
9.8. Other
Liens.
Not to
create, assume, or allow any security interest or lien (including judicial
liens) on property the Borrower now or later owns, except:
(a)
|
Liens
and security interests in favor of the
Bank.
|
20
(b)
|
Liens
for taxes not yet due.
|
(c)
|
Liens
outstanding on the date of this Agreement disclosed in writing to the
Bank, including liens in favor of GECC, which are subject to the terms of
the intercreditor agreement required by Paragraph 7.11
hereof.
|
(d)
|
Additional
purchase money security interests in assets acquired after the date of
this Agreement, if the total principal amount of debts secured by such
liens does not exceed Five Hundred Thousand Dollars ($500,000) at any one
time.
|
(e)
|
The
lien created by the deed of trust on the Burbank Facility, granted by the
Borrower to Xxxxxx as collateral security for the payment and performance
of the Borrower’s obligations to Xxxxxx in connection with the Xxxxxx
Loan.
|
(f)
|
The
lien created by the deed of trust on the Vine Facility, granted by the
Borrower to Xxxxxx as collateral security for the payment and performance
of the Borrower’s obligations to Xxxxxx in connection with the Xxxxxx
Loan.
|
9.9. Maintenance of
Assets.
(a)
|
Not
to sell, assign, lease, transfer or otherwise dispose of any part of the
Borrower’s business or the Borrower’s assets except in the ordinary course
of the Borrower’s business.
|
(b)
|
Not
to sell, assign, lease, transfer or otherwise dispose of any assets for
less than fair market value, or enter into any agreement to do
so.
|
(c)
|
Not
to enter into any sale and leaseback agreement covering any of its fixed
assets.
|
(d)
|
To
maintain and preserve all rights, privileges, and franchises the Borrower
now has.
|
(e)
|
To
make any repairs, renewals, or replacements to keep the Borrower’s
properties in good working
condition.
|
9.10. Investments.
Not to
have any existing, or make any new, investments in any individual or entity, or
make any capital contributions or other transfers of assets to any individual or
entity, except for:
(a)
|
Existing
investments disclosed to the Bank in
writing.
|
(b)
|
Investments
in the Borrower’s current
subsidiaries.
|
(c)
|
Investments
in any of the following:
|
|
(i)
|
certificates
of deposit;
|
|
(ii)
|
U.S.
treasury bills and other obligations of the federal
government;
|
21
|
(iii)
|
readily
marketable securities (including commercial paper, but excluding
restricted stock and stock subject to the provisions of Rule 144 of the
Securities and Exchange
Commission).
|
9.11. Loans.
Not to
make any loans, advances or other extensions of credit to any individual or
entity, except for:
(a)
|
Existing
extensions of credit disclosed to the Bank in
writing.
|
(b)
|
Extensions
of credit to the Borrower’s current
subsidiaries.
|
(c)
|
Extensions
of credit in the nature of accounts receivable or notes receivable arising
from the sale or lease of goods or services in the ordinary course of
business to non-affiliated
entities.
|
9.12. Change of
Management.
Not to
make any substantial change in the present executive or management personnel of
the Borrower.
9.13. Change of
Control.
Not to
cause or permit:
(a)
|
Xxxx
X. Bagerdjian to cease to be the chief executive officer of the Borrower
unless within sixty (60) days after Mr. Bagerdjian ceases to hold such
office the Borrower secures a replacement chief executive officer
satisfactory to the Bank.
|
(b)
|
Xxxx
X. Bagerdjian to cease to own directly or indirectly, beneficially or of
record, at least fifteen (15%) of all shares of voting securities of the
Borrower (provided that such percentage may be less than fifteen percent
(15%), but not less than seven and one-half percent (7.5%), if such
reduction is due to the issuance of shares of voting securities of the
Borrower as consideration for an acquisition permitted under Paragraph
9.14(b) below).
|
(c)
|
Individuals
who constituted the Borrower’s board of directors as of the date of this
Agreement (collectively, the “Existing Directors”) to cease to constitute
a majority of the directors then in office (provided that the Existing
Directors may constitute less than a majority if such reduction is due to
the appointment of additional directors in connection with an acquisition
permitted under Paragraph 9.14(b)
below).
|
9.14. Additional Negative
Covenants.
Not to,
without the Bank’s written consent:
22
(a)
|
Except
as permitted under Paragraph 9.14(b) below, enter into any consolidation,
merger, or other combination, or become a partner in a partnership, a
member of a joint venture, or a member of a limited liability
company.
|
(b)
|
Acquire
or purchase a business or its assets for total purchase consideration of
more than Three Million Dollars ($3,000,000) for any single transaction or
Four Million Dollars ($4,000,000) in the aggregate in any fiscal year for
all such transactions, or acquire or purchase a business or its assets
irrespective of the total amount of purchase consideration for such
transaction or the total purchase consideration for all such transactions
in any year if the Borrower cannot demonstrate to the Bank’s reasonable
satisfaction that the Borrower would be in pro forma compliance with the
financial and other covenants set forth in this Agreement after giving
effect to such acquisition or purchase or if the Bank otherwise does not
consent to such acquisition or
purchase.
|
(c)
|
Engage
in any business activities substantially different from the Borrower’s
present business.
|
(d)
|
Liquidate
or dissolve the Borrower’s
business.
|
(e)
|
Voluntarily
suspend its business for more than seven (7) days in any thirty (30) day
period.
|
9.15. Notices to
Bank.
To
promptly notify the Bank in writing of:
(a)
|
Any
lawsuit over One Million Dollars ($1,000,000) against the Borrower or the
Guarantor.
|
(b)
|
Any
substantial dispute between any governmental authority and the Borrower or
the Guarantor.
|
(c)
|
Any
event of default under this Agreement, or any event which, with notice or
lapse of time or both, would constitute an event of
default.
|
(d)
|
Any
material adverse change in the Borrower’s (or the Guarantor’s) business
condition (financial or otherwise), operations, properties or prospects,
or ability to repay the credit.
|
(e)
|
Any
change in the Borrower’s name, legal structure, place of business, or
chief executive office if the Borrower has more than one place of
business.
|
(f)
|
Any
actual contingent liabilities of the Borrower (or the Guarantor), and any
such contingent liabilities which are reasonably foreseeable, where such
liabilities are in excess of One Million Dollars ($1,000,000) in the
aggregate.
|
23
9.16. Insurance.
(a)
|
General Business
Insurance. To maintain insurance satisfactory to the
Bank as to amount, nature and carrier covering property damage (including
loss of use and occupancy) to any of the Borrower’s properties, business
interruption insurance, public liability insurance including coverage for
contractual liability, product liability and workers’ compensation, and
any other insurance which is usual for the Borrower’s
business. Each policy shall provide for at least thirty (30)
days prior notice to the Bank of any cancellation
thereof.
|
(b)
|
Insurance Covering
Collateral. If required by the Bank, to maintain all
risk property damage insurance policies covering the tangible property
comprising the collateral. Each such insurance policy required
by the Bank must be for the full replacement cost of the collateral and
include a replacement cost endorsement. Such insurance (if
required by the Bank) must be issued by an insurance company acceptable to
the Bank and must include a lender’s loss payable endorsement in favor of
the Bank in a form acceptable to the
Bank.
|
(c)
|
Evidence of
Insurance. Upon the request of the Bank, to deliver to
the Bank a copy of each insurance policy, or, if permitted by the Bank, a
certificate of insurance listing all insurance in
force.
|
9.17. Compliance with
Laws.
To comply
with the laws (including any fictitious or trade name statute), regulations, and
orders of any government body with authority over the Borrower’s
business. The Bank shall have no obligation to make any advance to
the Borrower except in compliance with all applicable laws and regulations and
the Borrower shall fully cooperate with the Bank in complying with all such
applicable laws and regulations.
9.18. ERISA
Plans.
Promptly
during each year, to pay and cause any subsidiaries to pay contributions
adequate to meet at least the minimum funding standards under ERISA with respect
to each and every Plan; file each annual report required to be filed pursuant to
ERISA in connection with each Plan for each year; and notify the Bank within ten
(10) days of the occurrence of any Reportable Event that might constitute
grounds for termination of any capital Plan by the Pension Benefit Guaranty
Corporation or for the appointment by the appropriate United States District
Court of a trustee to administer any Plan. “ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to
time. Capitalized terms in this paragraph shall have the meanings
defined within ERISA.
9.19. Books and
Records.
To
maintain adequate books and records.
24
9.20. Audits.
To allow
the Bank and its agents to inspect the Borrower’s properties and examine, audit,
and make copies of books and records at any reasonable time. If any
of the Borrower’s properties, books or records are in the possession of a third
party, the Borrower authorizes that third party to permit the Bank or its agents
to have access to perform inspections or audits and to respond to the Bank’s
requests for information concerning such properties, books and
records.
9.21. Perfection of
Liens.
To help
the Bank maintain the perfection of and protect its security interests and
liens, and reimburse it for related costs it incurs to protect its security
interests and liens.
9.22. Cooperation.
To take
any action reasonably requested by the Bank to carry out the intent of this
Agreement.
10. DEFAULT
AND REMEDIES
If any of
the following events of default occurs, the Bank may do one or more of the
following: declare the Borrower in default, stop making any additional credit
available to the Borrower, and require the Borrower to repay its entire debt
immediately and without prior notice. If an event which, with notice
or the passage of time, will constitute an event of default has occurred and is
continuing, the Bank has no obligation to make advances or extend additional
credit under this Agreement. In addition, if any event of default
occurs, the Bank shall have all rights, powers and remedies available under any
instruments and agreements required by or executed in connection with this
Agreement, as well as all rights and remedies available at law or in
equity. If an event of default occurs under the paragraph entitled
“Bankruptcy,” below, with respect to the Borrower, then the entire debt
outstanding under this Agreement will automatically be due
immediately.
10.1. Failure to
Pay.
The
Borrower fails to make a payment under this Agreement when due.
10.2. Other Bank
Agreements.
Any
default occurs under any other agreement the Borrower (or any Obligor) or any of
the Borrower’s related entities or affiliates has with the Bank or any affiliate
of the Bank. For purposes of this Agreement, “Obligor” shall mean the
Guarantor or any party pledging collateral to the Bank.
10.3. Cross-default.
Any
default occurs under any agreement in connection with any credit in excess of
Five Hundred Thousand Dollars ($500,000) the Borrower (or any Obligor) or any of
the Borrower’s related entities or affiliates has obtained from anyone else or
which the Borrower (or any Obligor) or any of the Borrower’s related entities or
affiliates has guaranteed.
25
10.4. False
Information.
The
Borrower or any Obligor has given the Bank materially false or misleading
information or representations.
10.5. Bankruptcy.
The
Borrower, any Obligor, or any general partner of the Borrower or of any Obligor
files a bankruptcy petition, a bankruptcy petition is filed against any of the
foregoing parties, or the Borrower, any Obligor, or any general partner of the
Borrower or of any Obligor makes a general assignment for the benefit of
creditors. The default will be deemed cured if any bankruptcy
petition filed against the Borrower, any Obligor, or any general partner of the
Borrower or of any Obligor is dismissed within a period of forty-five (45) days
after the filing; provided, however, that such cure opportunity will be
terminated upon the entry of an order for relief in any bankruptcy case arising
from such a petition.
10.6. Receivers.
A
receiver or similar official is appointed for a substantial portion of the
Borrower’s or any Obligor’s business, or the business is terminated, or, if any
Obligor is anything other than a natural person, such Obligor is liquidated or
dissolved.
10.7. Lien
Priority.
The Bank
fails to have an enforceable first lien (except for any prior liens to which the
Bank has consented in writing) on or security interest in any property given as
security for this Agreement (or any guaranty).
10.8. Judgments.
Any
judgments or arbitration awards are entered against the Borrower or any Obligor,
or the Borrower or any Obligor enters into any settlement agreements with
respect to any litigation or arbitration, in an aggregate amount of Two Hundred
Fifty Thousand Dollars ($250,000) or more in excess of any insurance coverage or
in an aggregate amount of Five Hundred Thousand Dollars ($500,000) or more,
irrespective of the amount of insurance coverage.
10.9. Material Adverse
Change.
A
material adverse change occurs, or is reasonably likely to occur, in the
Borrower’s (or any Obligor’s) business condition (financial or otherwise),
operations, properties or prospects, or ability to repay the
credit.
10.10. Government
Action.
Any
government authority takes action that the Bank believes materially adversely
affects the Borrower’s or any Obligor’s financial condition or ability to
repay.
26
10.11. Default under Related
Documents.
Any
default occurs under any guaranty, subordination agreement, security agreement,
deed of trust, mortgage, or other document required by or delivered in
connection with this Agreement or any such document is no longer in effect, or
any guarantor purports to revoke or disavow the guaranty.
10.12. Other Breach Under
Agreement.
A default
occurs under any other term or condition of this Agreement not specifically
referred to in this Article. This includes any failure or anticipated
failure by the Borrower (or any other party named in the Covenants section) to
comply with any financial covenants set forth in this Agreement, whether such
failure is evidenced by financial statements delivered to the Bank or is
otherwise known to the Borrower or the Bank. If, in the Bank’s
opinion, the breach is capable of being remedied, the breach will not be
considered an event of default under this Agreement for a period of thirty (30)
days after the date on which the Bank gives written notice of the breach to the
Borrower.
11. ENFORCING
THIS AGREEMENT; MISCELLANEOUS
11.1. Disposition of Schedules and
Reports.
The Bank
will not be obligated to return any schedules, invoices, statements, budgets,
forecasts, reports or other papers delivered by the Borrower. The
Bank will destroy or otherwise dispose of such materials at such time as the
Bank, in its discretion, deems appropriate.
11.2. Returned
Merchandise.
Until the
Bank exercises its rights to collect the accounts receivable as provided under
any security agreement required under this Agreement, the Borrower may continue
its present policies for returned merchandise and adjustments. Credit
adjustments with respect to returned merchandise shall be made immediately upon
receipt of the merchandise by the Borrower or upon such other disposition of the
merchandise by the debtor in accordance with the Borrower’s
instructions. If a client adjustment is made with respect to any
Acceptable Receivable, the amount of such adjustment shall no longer be included
in the amount of such Acceptable Receivable in computing the Borrowing
Base.
11.3. Verification of
Receivables.
The Bank
may at any time, either orally or in writing, request confirmation from any
debtor of the current amount and status of the accounts receivable upon which
such debtor is obligated.
11.4. Waiver of
Confidentiality.
The
Borrower authorizes the Bank to discuss the Borrower’s financial affairs and
business operations with any accountants, auditors, business consultants, or
other professional advisors employed by the Borrower, and authorizes such
parties to disclose to the Bank such financial and business information or
reports (including management letters) concerning the Borrower as the Bank may
request.
27
11.5. GAAP.
Except as
otherwise stated in this Agreement, all financial information provided to the
Bank and all financial covenants will be made under generally accepted
accounting principles, consistently applied.
11.6. California
Law.
This
Agreement is governed by California law.
11.7. Successors and
Assigns.
This
Agreement is binding on the Borrower’s and the Bank’s respective successors and
assignees. The Borrower agrees that it may not assign this Agreement
without the Bank’s prior consent. The Bank may sell participations in
or assign this loan, and may exchange information about the Borrower (including,
without limitation, any information regarding any hazardous substances) with
actual or potential participants or assignees. If a participation is
sold or the loan is assigned, the purchaser will have the right of set-off
against the Borrower.
11.8. Arbitration and Waiver of
Jury Trial.
(a)
|
This
paragraph concerns the resolution of any controversies or claims between
the parties, whether arising in contract, tort or by statute, including
but not limited to controversies or claims that arise out of or relate
to: (i) this agreement (including any renewals, extensions
or modifications); or (ii) any document related to this agreement
(collectively a “Claim”). For the purposes of this arbitration
provision only, the term “parties” shall include any parent corporation,
subsidiary or affiliate of the Bank involved in the servicing, management
or administration of any obligation described or evidenced by this
agreement.
|
(b)
|
At
the request of any party to this agreement, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title
9, U.S. Code) (the “Act”). The Act will apply even though this
agreement provides that it is governed by the law of a specified
state. The arbitration will take place on an individual basis
without resort to any form of class
action.
|
(c)
|
Arbitration
proceedings will be determined in accordance with the Act, the
then-current rules and procedures for the arbitration of financial
services disputes of the American Arbitration Association or any successor
thereof (“AAA”), and the terms of this paragraph. In the event
of any inconsistency, the terms of this paragraph shall
control. If AAA is unwilling or unable to (i) serve as the
provider of arbitration or (ii) enforce any provision of this
arbitration clause, the Bank may designate another arbitration
organization with similar procedures to serve as the provider of
arbitration.
|
28
(d)
|
The
arbitration shall be administered by AAA and conducted, unless otherwise
required by law, in any U.S. state where real or tangible personal
property collateral for this credit is located or if there is no such
collateral, in the state specified in the governing law section of this
agreement. All Claims shall be determined by one arbitrator;
however, if Claims exceed Five Million Dollars ($5,000,000), upon the
request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within
ninety (90) days of the demand for arbitration and close within ninety
(90) days of commencement and the award of the arbitrator(s) shall be
issued within thirty (30) days of the close of the
hearing. However, the arbitrator(s), upon a showing of good
cause, may extend the commencement of the hearing for up to an additional
sixty (60) days. The arbitrator(s) shall provide a concise
written statement of reasons for the award. The arbitration
award may be submitted to any court having jurisdiction to be confirmed,
judgment entered and enforced.
|
(e)
|
The
arbitrator(s) will give effect to statutes of limitation in determining
any Claim and may dismiss the arbitration on the basis that the Claim is
barred. For purposes of the application of the statute of limitations, the
service on AAA under applicable AAA rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning
this arbitration provision or whether a Claim is arbitrable shall be
determined by the arbitrator(s). The arbitrator(s) shall have
the power to award legal fees pursuant to the terms of this
agreement.
|
(f)
|
This
paragraph does not limit the right of any party
to: (i) exercise self-help remedies, such as but not
limited to, setoff; (ii) initiate judicial or non-judicial
foreclosure against any real or personal property collateral;
(iii) exercise any judicial or power of sale rights, or (iv) act
in a court of law to obtain an interim remedy, such as but not limited to,
injunctive relief, writ of possession or appointment of a receiver, or
additional or supplementary
remedies.
|
(g)
|
The
procedure described above will not apply if the Claim, at the time of the
proposed submission to arbitration, arises from or relates to an
obligation to the Bank secured by real property. In this case,
all of the parties to this agreement must consent to submission of the
Claim to arbitration. If both parties do not consent to
arbitration, the Claim will be resolved as follows: The parties will
designate a referee (or a panel of referees) selected under the auspices
of AAA in the same manner as arbitrators are selected in AAA administered
proceedings. The designated referee(s) will be appointed by a court as
provided in California Code of Civil Procedure Section 638 and the
following related sections. The referee (or presiding referee
of the panel) will be an active attorney or a retired
judge. The award that results from the decision of the
referee(s) will be entered as a judgment in the court that appointed the
referee, in accordance with the provisions of California Code of Civil
Procedure Sections 644 and 645.
|
(h)
|
The
filing of a court action is not intended to constitute a waiver of the
right of any party, including the suing party, thereafter to require
submittal of the Claim to
arbitration.
|
(i)
|
By
agreeing to binding arbitration, the parties irrevocably and voluntarily
waive any right they may have to a trial by jury in respect of any
Claim. Furthermore, without intending in any way to limit this
agreement to arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a
trial by jury in respect of such Claim to the maximum extent they may
legally do so under applicable California law. This provision
is a material inducement for the parties entering into this
agreement.
|
29
11.9. Severability;
Waivers.
If any
part of this Agreement is not enforceable, the rest of the Agreement may be
enforced. The Bank retains all rights, even if it makes a loan after
default. If the Bank waives a default, it may enforce a later
default. Any consent or waiver under this Agreement must be in
writing.
11.10. Attorneys’
Fees.
The
Borrower shall reimburse the Bank for any reasonable costs and attorneys’ fees
incurred by the Bank in connection with the enforcement or preservation of any
rights or remedies under this Agreement and any other documents executed in
connection with this Agreement, and in connection with any amendment, waiver,
“workout” or restructuring under this Agreement. In the event of a
lawsuit or arbitration proceeding, the prevailing party is entitled to recover
costs and reasonable attorneys’ fees incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator. In
the event that any case is commenced by or against the Borrower under the
Bankruptcy Code (Title 11, United States Code) or any similar or successor
statute, the Bank is entitled to recover costs and reasonable attorneys’ fees
incurred by the Bank related to the preservation, protection, or enforcement of
any rights of the Bank in such a case. As used in this paragraph,
“attorneys’ fees” includes the allocated costs of the Bank’s in-house
counsel.
11.11. One
Agreement.
This
Agreement and any related security or other agreements required by this
Agreement, collectively:
(a)
|
represent
the sum of the understandings and agreements between the Bank and the
Borrower concerning this credit;
|
(b)
|
replace
any prior oral or written agreements between the Bank and the Borrower
concerning this credit; and
|
(c)
|
are
intended by the Bank and the Borrower as the final, complete and exclusive
statement of the terms agreed to by
them.
|
In the
event of any conflict between this Agreement and any other agreements required
by this Agreement, this Agreement will prevail. Any reference in any
related document to a “promissory note” or a “note” executed by the Borrower and
dated as of the date of this Agreement shall be deemed to refer to this
Agreement, as now in effect or as hereafter amended, renewed, or
restated.
30
11.12. Indemnification.
The
Borrower will indemnify and hold the Bank harmless from any loss, liability,
damages, judgments, and reasonable costs of any kind relating to or arising
directly or indirectly out of (a) this Agreement or any document required
hereunder, (b) any credit extended or committed by the Bank to the Borrower
hereunder, and (c) any litigation or proceeding related to or arising out of
this Agreement, any such document, or any such credit. This indemnity
includes but is not limited to reasonable attorneys’ fees (including the
reasonable allocated cost of in-house counsel). This indemnity
extends to the Bank, its parent, subsidiaries and all of their directors,
officers, employees, agents, successors, attorneys, and assigns. This
indemnity will survive repayment of the Borrower’s obligations to the
Bank. All sums due to the Bank hereunder shall be obligations of the
Borrower, due and payable immediately without demand.
11.13. Notices.
Unless
otherwise provided in this Agreement or in another agreement between the Bank
and the Borrower, all notices required under this Agreement shall be personally
delivered or sent by first class mail, postage prepaid, or by overnight courier,
to the addresses on the signature page of this Agreement, or sent by facsimile
to the fax numbers listed on the signature page, or to such other addresses as
the Bank and the Borrower may specify from time to time in
writing. Notices and other communications shall be effective
(i) if mailed, upon the earlier of receipt or five (5) days after deposit
in the U.S. mail, first class, postage prepaid, (ii) if telecopied, when
transmitted, (iii) if sent by electronic mail, when transmitted, or (iv) if
hand-delivered, by courier or otherwise (including telegram, lettergram or
mailgram), when delivered.
11.14. Headings.
Article
and paragraph headings are for reference only and shall not affect the
interpretation or meaning of any provisions of this Agreement.
11.15. Counterparts.
This
Agreement may be executed in as many counterparts as necessary or convenient,
and by the different parties on separate counterparts each of which, when so
executed, shall be deemed an original but all such counterparts shall constitute
but one and the same agreement.
[Rest
of page intentionally left blank; signature page follows]
31
This
Agreement is executed as of the date stated at the top of the first
page.
Bank
of America, N.A.
By
\s\ harad X. Xxxxx
Xxxxxx X. Xxxxx
Vice President
|
a
California corporation
By
\s\ Xxxx X. Steel
Xxxx X. Steel
Executive Vice
President,
Finance and
Administration
and Chief Financial
Officer
|
Address
where notices to
the
Bank are to be sent:
Bank of America,
N.A.
000 Xxxxx Xxxx
Xxxxxx,
00xx
Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx
00000
Attn: Xxxxxx Xxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail: sharad.bhatt@
xxxxxxxxxxxxx.xxx
|
Address
where notices to
the
Borrower are to be sent::
0000 Xxxxx Xxxxxxx
Xxxxxx
Xxxxxxx, Xxxxxxxxxx
00000
Attn: Chief Financial
Officer
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
E-mail:
xxxxxx@xxxxx000.xxx
|
32