EX-10.1
2
v060100_ex10-1.htm
Exhibit
10-1
LOAN
SALE AGREEMENT
THIS
LOAN
SALE AGREEMENT (“Agreement”) is made and entered into as of the ____ day
of_____________, 2006, by and between NATIONAL LOAN INVESTORS, L.P. (“NLI” and
“Seller”), and LOGISTICAL SUPPORT, LLC, a
California limited liability company
(“LOGISTICAL” and “Buyer”).
RECITALS
A. Seller
is
the owner and holder of a certain Loan, as evidenced by the Loan Documents
more
hilly described below.
B. Buyer
wishes to purchase the Loan from Seller, and Seller wishes to sell the Loan
to
Buyer, all on the terms and conditions contained herein.
AGREEMENT
NOW,
THEREFORE,
in
consideration of the above recitals, which are hereby made a contractual part
hereof, the payments, provisions and mutual promises contained herein, and.
for
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged by the parties hereto, the parties hereto hereby agree
as
follows:
ARTICLE
1
PURCHASE
AND SALE OF THE LOAN
Section
1.1 Agreement
to Sell and Purchase the Loan. Subject to and. upon the terms and conditions
of
this Agreement, Seller agrees to sell, and Buyer agrees to purchase, all of
Sellers right, title and interest in and to the Loan and the Loan
Documents.
Section
1.2 Purchase
Price. The purchase price (the “Purchase Price”) for the Loan shall be as
follows:
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1.
|
Buyer
shall make an initial deposit of $25,000.00 by cashier’s check or money
order on or before November 30,
2006;
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2.
|
Buyer
shall make a second deposit of $66,666.66 by cashier’s check or money
order on or before December 15,
2006;
|
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3.
|
Buyer
shall have the option to make a third payment of $108,333.34 by cashier’s
check or money order on or before December 31, 2006, for a total
purchase
price of $200,000.00. If Buyer does not make the balloon payment
referenced herein, then Buyer shall pay as
follows:
|
|
| A. |
Buyer
shall make a third deposit of $66,666.67 by cashier’s check or money order
on or before January 15, 2007; and
|
|
| B. |
Buyer
shall make a fourth and final payment of $66,666.67 by cashier’s check or
money order on or before February 15, 2007, for a total purchase
price of
$225,000.00.
|
ARTICLE
2
BUYER’S
REPRESENTATIONS, WARRANTIES, COVENANTS AND ACKNOWLEDGMENTS
Section
2.1 Buyer’s
Representations and Warranties. Buyer hereby represents, warrants, covenants
and
acknowledges that, as of the date hereof, and as of the Closing
Date:
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(a)
|
Buyer
acknowledges that none of Seller’s employees, attorneys or agents has been
authorized to make, and that Buyer has not relied upon, any statements
or
representations other than those specifically contained in this Agreement.
Buyer acknowledges that the Loan is being sold “AS IS, WHERE IS”, arid
without recourse to Seller or Seller’s officers, directors, employees,
agents, attorneys, loan services, successors or
assigns.
|
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(b)
|
Buyer
has taken all necessary action to authorize the execution, delivery
and
performance of this Agreement and has the power and authority to
execute,
deliver and perform this Agreement and all of the transactions
contemplated hereby.
|
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(c)
|
The
execution and delivery of this Agreement and the performance of Buyer’s
obligations hereunder will not conflict with any provisions of any
law,
regulation, order or decree to which Buyer is subject, or conflict
with or
result in a breach of or constitute a default under any of the terms,
conditions, or provisions of any agreement or instrument to which
Buyer is
a party or by which it is bound.
|
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(d)
|
There
is no action, suit or proceeding pending against Buyer in any court
or by
or before any other governmental agency or instrumentality which
would
materially affect the ability of Buyer to carry out the transactions
contemplated by this Agreement.
|
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(e)
|
Buyer
acknowledges that one or more environmental engineering, surveying,
appraisal, title, lien search or similar reports may be contained
in the
Loan File evidencing the results of surveys, investigations, examinations,
studies or appraisals performed with respect to the Mortgaged Property.
Buyer understands and acknowledges that any such reports contained
in the
Loan File or otherwise provided or made available by Seller or its
officers, employees, agents, loan servicers, contractors, or
representatives, is provided without any representations or warranties
as
to any matter expressed in such reports, including, without limitation,
the qualifications or expertise of the author or authors thereof
or the
completeness or accuracy of the facts, assumptions and conclusions
contained therein.
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Page
5
ARTICLE
3
SELLER’S
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section
3.1 Seller’s
Representations and Warranties. Seller hereby represents and warrants to Buyer
as of the date hereof and as of the Closing Date:
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(a)
|
Seller
has taken all necessary action to authorize the execution, delivery
and
performance of this Agreement and has the power and authority to
execute,
deliver and perform this Agreement and all the transactions contemplated
hereby.
|
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(b)
|
The
execution and delivery of this Agreement and the performance of Sellers
obligations hereunder will not conflict with any provisions of any
law,
regulation, order or decree to which Seller is subject, or conflict
with
or result in a breach of or constitute a default under any of the
terms,
conditions or provisions of any agreement or instrument to which
Seller is
a party or by which it is bound.
|
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(c)
|
There
is no action, suit or proceeding pending against Seller in any court
or by
or before any other governmental agency or instrumentality which
would
materially affect the ability of Seller to carry out the transacbon5
contemplated by this Agreement.
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(d)
|
Seller
is the sole owner and holder of the Loan and the Loan
Documents.
|
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(e)
|
The
balance due on the Loan is $338, 365.45 (principal $313,381.21, accrued
interest of $17,928.27, late charges of $935.16, legal fees of $3,120.81,
and Seller is unaware of any rights of offset which could. be alleged
by
borrowers, or guarantors against enforcement of the
Loan.
|
ARTICLE
4
CONDITIONS
PRECEDENT TO CLOSING
Section
4.1 Deposits
of Buyer. On or before the Closing Date (either December 31, 2006 or February
15, 2007), Buyer shall pay:
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(a)
|
the
balance of the Purchase Price (the “Balance of the Purchase Price”) by
cashier’s check or wire transfer of federal
funds;
|
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(b)
|
all
other amounts required to be paid by Buyer at or in connection with
the
Closing hereunder; and,
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Section
4.2
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(a)
|
On
or before the Dosing Date, Seller shall have prepared the following
documents or instruments with respect to the Loan. to be transferred
to
Seller by Buyer:
|
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(i)
|
the
Note with an executed Allonge;
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Page
6
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(ii)
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the
original Assignment of Security executed by Seller in recordable
form;
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(iii)
|
any
other loan documents to be as
appropriate.
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Section
4.3 Closing.
Upon Seller’s receipt of the Balance of the Purchase Price from Buyer and upon
Seller’s receipt of all documents and other items required to be deposited with
the Seller by Buyer, Seller shall close by:
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(a)
|
delivering
to Buyer an original of the Assignment of Security and then delivering
the
same to Buyer;
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(b)
|
delivering
to Buyer the Note with an executed Allonge and a duplicate original
of the
Assignment of Loan Documents;
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(c)
|
delivering
any assignments of other loan documents as appropriate, including,
but not
limited to UCC-1 filings.
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(d)
|
Within
a reasonable amount of time thereafter, Seller shall deliver to buyer
the
Credit Loan File, at Seller’s expense, to Buyer’s address. Seller and its
agents, independent contractors, attorneys and Loan servicers shall
have
no further responsibility for servicing the Loan and shall have no
other
obligation of any kind concerning the Loan. Seller makes no
representations or warranties with respect to the accuracy or completeness
of the servicing records contained in the Credit Loan Pile, other
than the
balance due under the Loan as of November 30,
2006.
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Section
4.4 Closing
and Other Costs.
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(a)
|
Buyer
shall pay (i) any governmental registration, documentary transfer
or
transaction taxes or fees due in connection with the transfer of
the Loan
from Seller to Buyer, (ii) any filing or recording fees or costs
incurred
costs incurred or charged by any title company, and (iii) any sales
or use
taxes determined to be payable in connection with this transaction,
(iv)
be responsible for the payment of any unpaid real estate taxes associated
with the collateral properties (if
any).
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(b)
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Each
party hereto shall pay its own legal fees and other costs in this
transaction.
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Section
4.5 Conformity
to Law. Buyer agrees to abide by all applicable state and federal laws, rules,
and regulations regarding the handling and maintenance of all documents and
records relating to the Loan purchased hereunder, including, without limitation,
the length of time such documents and records are required to be
retained.
Section
4.6 Seller’s
Access to Loan File. Alter the transfer of the Credit Loan File to Buyer
pursuant to the terms of this Agreement, Seller, at Seller’s expense, shall have
the continuing right to use, inspect or make copies of any such documents or
records which remain in the possession or control of Buyer or Buyer’s successors
or assigns, upon Seller’s reasonable notice to Buyer or Buyer’s successors or
assigns, as the case may be. Buyer, on behalf of itself and all of its
successors or assigns. agrees to allow Seller, at Seller’s expense, the
temporary possession, custody, and use of original documents which remain in
the
possession or control of Buyer or Buyer’s successors or assigns for any lawful
purpose and upon reasonable terms and conditions and upon reasonable notice
to
Buyer or Buyer’s successors or assigns.
Page
7
Section
4.7 Buyer’s
right to Due Diligence. Notwithstanding the payment of the deposit of $25,000.00
on or before December 5, 2006, Buyer shall have the right to review Seller’s
loan file and related documents and perform its own due diligence with reference
to the enforceability of the documents that buyer is purchasing. buyer shall
review such documents at Seller’s counsel’s office prior to December 8, 2006. To
the extend that Buyer identifies any issues relating to the enforceability
of
the documents, Buyer will attempt to resolve any such issues with Seller. If
no
resolution is reached, Buyer has the right to withdraw and nullify the
transaction by notice given to Seller, as set forth below, by December 8, 2006.
If Buyer withdraws, Seller shall retain the $25,000.00 deposit as payment
against the existing Loan as set forth in Section 6.16, and the parties shall
retain all rights and remedies as if this transaction had never
occurred.
ARTICLE
5
WAIVER
AND RELEASE
Section
5.1 Waiver
and Release. Subject to the provisions of Section 4.7, Buyer, on behalf of
itself and all of its successors and assigns, hereby waives and relinquishes
any
Claim any of them may now or in the future have against Seller or Seller’s
predecessors in interest or against any officers, directors, employees,
attorneys, agents, contractors, Loan servicers, successors or assigns of Seller
or Seller’s predecessors in interest (collectively, the “Released Persons”), in
any way related to the Loan, the Secured Property, including, without
limitation, any Claim for indemnification or contribution arising under any
federal, state or local statute, regulation, ordinance or rule of law relating
to liability for environmental matters, and Buyer hereby releases the Released
Persons from any such Claim; provided, however, that this waiver and release
shall not bar Buyer from (i) obtaining credit: against the Hill Industries
Loan
amount pursuant to Section 6.16. Buyer has waived and does hereby waive any
and all other remedies for Seller’s breach of this Agreement, including, without
limitation, any right to xxx for actual, consequential or any other
damages.
ARTICLE
6
MISCELLANEOUS
PROVISIONS
Section
6.1 Notices.
All notices and other communications required or permitted hereunder shall
be in
writing and shall be given by registered or certified mail (return receipt
requested), personal delivery, or overnight commercial courier service,
addressed to the recipient as follows (or at such other address as the recipient
may specify by written notice to the other parties):
Page
8
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If
to the Buyer:
Xxxxx
Xxxxxxx
Logistical
Support, LLC
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
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|
with
a copy to:
Xxxxx
X Xxxxxx, Esq.
Xxxxxxxxx
& Bass
00000
Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx,
XX 00000
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|
If
to Seller:
National
Loan Investors, L.P.
0000
XX. Xxxxxxxxxx
Xxxxx
0000
Xxxxxxxx
Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx
Xxxxxx
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|
with
a copy to:
Verus
Law Group
Xxxxx
Xxxxxx
0000
Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxx
Xxxxxx, XX 00000
|
For
the
purposes hereof, the date of personal delivery, three (3) Business Days after
the date the notice is deposited in U.S. mail or one (1) Business Day after
the
date the notice is deposited with the overnight commercial courier service,
as
applicable, shall be deemed to be the date upon which notice is given
hereunder
Section
6.2 Severability.
In the event that any provision of this Agreement is found by any court or
other
authority of competent jurisdiction to be illegal or unenforceable, such
provision shall be deemed deleted from this Agreement or modified to the extent
necessary to render this Agreement fully enforceable, and as so altered or
modified, this Agreement shall continue in full force and effect.
Section
6.3 Rights
Cumulative; Waivers. The rights of each of the parties under this Agreement
are
cumulative. The rights of each of the parties hereunder shall not be capable
of
being waived or modified other than by an express written waiver or
modification. Any failure to exercise or any delay in exercising any of such
rights shall not operate as a waiver or modification of that or any other such
right. Any defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such right. No
act
or course of conduct or negotiation on the part of any party shall in any way
preclude such party from exercising any such right or constitute a waiver,
suspension or modification of any such right.
Page
9
Section
6.4 Brokerage
Commissions and Finder’s Fees. Each party to this Agreement warrants to the
other that no person or entity is entitled to any commission, finder’s fee,
acquisition fee or other brokerage-type compensation (collectively, a
“Commission”) based upon the acts of that person or entity with respect to any
transaction contemplated by this Agreement. Each party hereby agrees to
indemnify and defend the other against, and to hold the other harmless for,
from
and against any and all loss, cost, liability or expense (including, without
limitation, attorneys’ fees and Commissions) resulting from or relating to any
Claim for a Commission by any person or entity.
Section
6.5 Article
and Section Headings. The Article and Section headings in this Agreement are
for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section
6.6 Construction.
Unless the context otherwise requires, when used herein, the singular shall
be
deemed to include the plural, the plural shall be deemed to include each of
the
singular, and pronouns of one or no gender shall be deemed to include the
equivalent pronoun of the other or no gender.
Section
6.7 Benefit;
Successors Bound. This Agreement, including the exhibits hereto, shall be
binding upon, and shall inure to the benefit of, the undersigned parties and
their respective heirs, legal representatives, successors, and permitted
assigns. This Agreement shall (to the extent specifically provided herein)
also
inure to the benefit of all Released Persons. It is the specific intention
of
the parties that neither this Agreement nor anything contained herein shall
benefit any person or entity other than those indicated in this
Section.
Section
6.8 Assignment.
The rights and obligations of Buyer under this Agreement shall not be assignable
without the prior written consent of Seller, except that Buyer may, without
the
prior written consent of Seller, assign this Agreement to an entity controlled
by or which controls Buyer or which is under the common control of the person
or
entity controlled by Buyer, provided that such person or entity executes an
assumption agreement pursuant to which such entity assumes Buyer’s obligations
hereunder and which is satisfactory in form and substance to Seller. Buyer
hereby acknowledges and agrees that in the event of such assignment, Buyer
shall
not be released from its obligations hereunder and shall remain liable
hereunder.
Section
6.9 Amendment.
This Agreement may be amended only by an instrument in writing executed by
au.
of the parties hereto.
Section
6.10 Entire
Agreement. This Agreement represents a complete integration of all the prior
and
contemporaneous agreements and understandings of the parties with respect to
the
subject matter of this Agreement. Any and all such prior agreements and
understandings are hereby superseded by this Agreement.
Section
6.11 Counterparts.
This Agreement may be executed in counterparts and via facsimile, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
Page
10
Section
6.12 Survival.
Each and every representation, warranty, covenant, acknowledgment, and
indemnification herein above made by Buyer or Seller shall survive the Closing
and shall not merge into the Closing Documents, but instead shall be
independently enforceable in accordance with the terms of this
Agreement.
Section
6.13 Construction
of Agreement. Each party acknowledges that it has participated in the
negotiation of this Agreement and the Closing Documents, and no provision of
this Agreement or the Closing Documents shall be construed against or
interpreted to the disadvantage of any party hereto or thereto by reason of
such
party having or being deemed to have drafted such provision; and that each
of
the parties hereto at all times has had access to an attorney in the negotiation
of the terms of and in the preparation and execution of this Agreement and
the
Closing Documents.
Section
6.14 Time
is
of the Essence. The parties acknowledge and agree that time is of the essence
with respect to every provision contained in this Agreement.
Section
6.15 Governing
Law. This Agreement shall be construed and enforced in accordance with, and
shall be governed by, the laws of the State of
California.
Section
6.16 Default
in Payments. In the event that Buyer defaults in the making of payments
hereinunder, then this Agreement shall be null and void. Seller shall have
no
duty to return arty payments made by Buyer to Seller prior to default however,
any arid all such payments made prior to breach shall be allocated as a payment
on the underlying Loan to be applied in accordance with the terms of the Hill
Industries Promissory Note. Buyer further acknowledges and agrees to the
application of such payments made hereunder to the Loan amounts due and owing
under the terms of the Hill Industries Promissory Note given its liability
for
such payments as a successor guarantor of the Hill Industries Promissory Note
buy virtue of the merger which occurred on March 30, 2006 between Logistical
Support, LLC, and Hill Aerospace & Defense, LLC.
Page
11
IN
WITNESS WHEREOF,
the
parties hereto have executed this Agreement as of the date first above
written.
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Buyer:
Logistical
Support, LLC,
a
California limited liability company
By:________________________________
Print
Name: ______________________
Title:___________________________
|
| |
Seller:
National
Loan Investors, L.P.
By:____________________________
Print
Name: Xxx X. Xxxxx
Title:___________________________
|
Page
12
LIST
OF EXHIBITS
| EXHIBIT
“A” |
Form
of Allonge
|
| EXHIBIT
“B” |
Form
of UCC-2 Assignments
|
| EXHIBIT
“C” |
Promissory
Note
|
| EXHIBIT
“D” |
List
of Security Instruments
|
EXHIBIT
“A”
ALLONGE
NOTE ENDORSEMENT
| Customer(s): |
Hill
Industries, Inc.
|
Pay,
without recourse or warranty to the order of Logistical Support, L.L.C. on
July 21, 2006.
| |
NATIONAL
LOAN INVESTORS, L.P.
By:/s/
Xxx X.
Xxxxx
Xxx
X. Xxxxx
Managing
General Partner
|
EXHIBIT
“B”
[Letterhead]
NLI
National Loan Investors, L.P.
0000
X.
X. Xxxxxxxxxx - Xxxxx 0000, Xxxxxxxx Xxxx, Xxxxxxxx 00000
(405)
947-6171 Extension 244 Email: xxxxxx@xxx.xxx
July21.
2006
Logistical
Support, L.L.C.
00000
Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxxxxxxxx 00000
| Subject: |
Borrower/Obligator(s)
Hill Industries, Inc. Hill Aviation Logistics,
LLC
|
Loan
Number: 74400100
Transaction: Transfers
National
Loan Investors, L.P. (NLI) hereby authorize Logistical Support, L.L.C. to file
financing statement amendment(s) in order to assign the below listed financing
statement(s) that does not contain NLI’s signature, where permitted by law in
connection with the above transaction for purposes of perfecting your security
interest under the current Uniform Commercial Code:
Logistical
Support, L.L.C. shall, as soon as practicable following closing, but in no
event
more than thirty (30) days after the Closing Date, properly file and record,
in
the appropriate public offices, all Financing Statement Assignments above
mentioned.
| |
NATIONAL
LOAN INVESTORS, L.P.
By:/s/
M. Xxxx
Xxxxx
M.
Xxxx Xxxxx
Documentation
Division
|
EXHIBIT
“C”
LOAN
#2000316198
SECURED
PROMISSORY NOTE
September
15, 1999
1. INDEBTEDNESS.
FOR VALUE RECEIVED, the undersigned, HILL
INDUSTRIES, INC.,
a
California corporation (“Maker”) promises to pay to SANTA
XXXXXX BANK,
a
California banking corporation (hereinafter referred to as “Bank”), on order, at
0000 Xxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000-0000 or such other place
as
may be designated in writing by the holder of this Secured Promissory Note
(hereinafter referred to as this “Note”), the principal sum of Nine Hundred
Thousand and 00/100 Dollars ($900000.00), or such lesser amount as may be
outstanding from time to time, together with interest accrued thereon. This
Note
evidences revolving advances made by Bank to Maker pursuant to
Sections 2.1A of that certain Amended and Restated Loan and Security
Agreement, of even date herewith, between Bank and Maker, as amended from time
to time (the “Loan Agreement”).
2. INTEREST.
Commencing on the date hereof the unpaid principal balance of this Note shall
bear interest at a rate two (2.00) percentage points in excess of the prime
rate
of interest (the highest variable rate of interest, per annum, published daily
as the “prime rate” in the Money Rates Section of the Western Edition of the
Wall Street Journal - hereinafter referred to as the “Prime Rate”). In the event
that such a rate is no longer published, then the “Prime Rate” shall mean the
variable rate of interest, per annum, most recently announced by Bank at its
office in Santa Xxxxxx, as its “prime rate”, with the understanding that Bank’s
“prime rate” is one of its base rates and serves as a basis upon which effective
rates of interest are calculated for loans making reference thereto and may
not
be the lowest of Bank’s base rates). In the event that any installment required
pursuant to Section 3 of this Note is not paid when due, or any other default
occurs under the terms of this Note, and without affecting any of Bank’s rights
and remedies provided herein, the unpaid principal balance of this Note shall
thereafter bear interest at a rate seven (7.00) percentage points above the
Prime Rate. In the event that the Prime Rate is, from time to time hereafter,
changed, adjustments in the rate of interest payable hereunder shall be made
as
of 12:01 A.M. on the effective date of the change in the Prime Rate. Interest
chargeable hereunder shall be calculated on the basis of a three hundred sixty
(360) day year for actual days elapsed.
3. PAYMENT.
Principal and interest shall be due and payable on the dates and in the manner
as follows:
(a) Commencing
on the first (1st) day of October, 1999, and continuing on the same day of
each
and every calendar month thereafter, Maker shall make monthly payments of
interest accrued on the unpaid principal balance hereof,
(b) Commencing
on the first (1st)
day of
October, 1999, and continuing on the same day of each and every calendar month
thereafter, Maker shall make a monthly principal payment in the amount of
Seventy Five Thousand Dollars ($75,000.00).
(c) On
the
first (1st) day of February, 2000, Maker shall make payment in full of the
unpaid principal balance hereof remaining unpaid on such date, together with
any
and all accrued and unpaid interest hereunder.
4. REDUCTION
IN THE MAXIMUM CREDIT LINE. The monthly installments of principal required
under
Section 3b of this Note shall constitute a permanent reduction in the
Maximum Credit Line (as that term is defined in the Loan Agreement). Maker
shall
not be entitled to reborrow the installment payments made pursuant to such
Section.
5. PREPAYMENT.
Maker may prepay all or part of the principal balance due under this Note,
without premium or penalty. With each prepayment Maker shall also pay the
interest accrued on the principal amount being prepaid to the date of such
prepayment. So long as not event of default shall have occurred under the Loan
Agreement, subject to the provisions of Section 4 of this Note, Maker may
request advances from Bank following the prepayment of any amounts
hereunder.
6. COMPOUND
INTEREST. Interest not paid when due may be added to the unpaid principal
balance hereof and shall thereafter bear interest at the same rate as principal.
All payments hereunder are to be applied first to the payment of accrued
interest and the balance remaining applied to the payment of principal. All
principal and interest due hereunder is payable in lawful money of the United
States of America.
7. LATE
CHARGE. If a payment of principal or interest is ten (10) days or more late,
Maker will be charged five percent (5.00%) of the amount of such payment. The
late charge payable by Maker hereunder is in addition to, and not in lieu of,
all other rights and remedies of Bank.
8. WAIVERS.
Maker, for itself, its legal representatives, successors and assigns, expressly
waives presentment, protest, demand, notice of dishonor, notice of nonpayment,
notice of maturity, notice of protest, presentment for the purpose of
accelerating maturity, and diligence in collection, and consents that Bank
may
extend the time for payment or otherwise modify the terms of payment of any
part
or the whole of the debt evidenced hereby. To the fullest extent permitted
by
law, Maker waives the statute of limitations in any action brought by Bank
in
connection with this Note.
9. ACCELERATION.
IT IS EXPRESSLY AGREED THAT UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT UNDER
THE TERMS OR CONDITIONS OF THE LOAN AGREEMENT, THEN THE UNPAID PRINCIPAL BALANCE
OF THIS NOTE, TOGETHER WITH INTEREST ACCRUED THEREON, SHALL THEREUPON BE
IMMEDIATELY DUE AND PAYABLE AT THE OPTION OF THE HOLDER HEREOF, WITHOUT
PRESENTMENT, DEMAND, PROTEST OR NOTICE OF PROTEST OF ANY KIND, ALL OF WHICH
ARE
HEREBY EXPRESSLY WAIVED.
10. ATTORNEYS’
FEES AND CHOICE OF LAW. In the event it should become necessary to employ
counsel to collect this Note, Maker agrees to pay the reasonable attorney’s fees
and paralegals’ fees (including allocated costs for in-house legal services
provided and attorneys’ fees and paralegals’ fees in all bankruptcy proceedings)
and cost of the holder hereof, whether or not suit is brought. This Note and
all
transactions hereunder and/or evidenced hereby shall be governed by, construed
under and enforced in accordance with the laws of the State of
California.
2
11. PARTICIPATION.
Bank reserves the right to sell, assign, transfer, negotiate, or grant
participation interests in all or any part of, or any interest in Bank’s rights
and benefits hereunder. In connection therewith, Bank may disclose all documents
and information which Bank now or hereafter may have relating to
Maker.
12. MODIFICATION.
This Note may not be changed, modified, amended or terminated
orally.
13. WAIVER
OF
JURY TRIAL. MAKER AND BANK HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT
OR
ANY OTHER LOAN DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY
DEALINGS BETWEEN MAKER AND BANK RELATING TO THIS AGREEMENT, WHETHER SOUNDING
IN
CONTRACT, TORT OR OTHERWISE MAKER AND BANK EACH ACKNOWLEDGE THAT THIS WAIVER
IS
A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF MAKER
AND BANK HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT
AND
THAT EACH OF MAKER AND BANK WILL CONTINUE TO RELY ON THIS WAIVER IN ANY RELATED
FUTURE DEALINGS BETWEEN MAKER AND BANK. MAKER AND BANK FURTHER WARRANT AND
REPRESENT THAT THEY EACH KNOWINGLY AND VOLUNTARILY WAIVE THEIR RESPECTIVE JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
| |
HILL
INDUSTRIES, INC.,
a
California corporation
By:/s/
[illegible]
Title: Pres.
|
SANTA
XXXXXX BANK hereby accepts this Note and agrees to the provisions contained
in
Section 13 of the Note.
| |
SANTA
XXXXXX BANK,
a
California banking corporation
By:/s/
[illegible]
Title: Senior
Vice President
|
3
ALLONGE
Pay
to
the order of National
Loan Investors, LP.
(“NLI”),
WITHOUT
REPRESENTATION, WARRANTY OR RECOURSE except for any representation, warranty
or
recourse explicitly stated in that certain Loan Purchase Agreement dated March
20, 2002 between NLI and the undersigned.
| |
U.S.
Bank National Association, f/k/a Firstar Bank, National Association,
successor by mergert to U.S. Bank National Association, successor
in
merger to Santa Xxxxxx Bank
By:/s/
Xxxxxxx X.
Xxxxxxxxx
Xxxxxxx
x. Xxxxxxxxx, Attorney-In-Fact
|
ID
105,
74400100, 200, HILL INDUSTRIES, INC. ET AL
EXHIBIT
“D”
|
1.
|
Amended
and Restated Loan and Security Agreement dated
9/15/99
|
|
2.
|
Extension
and Modification Agreement dated
11/7/01
|
|
3.
|
Forbearance
and Modification Agreement dated
12/1/02
|
|
4.
|
Second
Forbearance and Modification Agreement dated
2/1/04
|
|
5.
|
Loan
Modification Agreement dated
1/26/05
|
|
6.
|
Commercial
Security Agreement dated 2/8/99 (Hill Worldwide,
LLC)
|
|
7.
|
Commercial
Security Agreement dated 2/8/99 (Hill Aerospace & Defense,.
LLC)
|
|
8.
|
Commercial
Security Agreement dated 2/8/99 (Hill Aviation & Logistics,
LLC)
|
|
9.
|
Commercial
Security Agreement dated 2/8/99 (Hill industries,
Inc.)
|
|
10.
|
Commercial
Security Agreement dated 2/8/99 (Hill industries,
LLC)
|
|
11.
|
Security
Agreement dated 9/15/99 by Hill Industries,
LLC
|
|
12.
|
Security
Agreement dated 9/15/99 by Hill Aerospace & Defense,
LLC
|
|
13.
|
Security
Agreement dated 9/15/99 by Hill Aviation Logistics,
LLC
|
|
14.
|
Security
Agreement dated 9/15/99 by Hill Worldwide,
LLC
|
|
15.
|
Financing
Statement #9835860181 and all supplementals pertaining
thereto
|
|
16.
|
Financing
Statement #9835860155 and all supplementals pertaining
thereto
|
|
17.
|
Financing
Statement #9913260283 and all supplementals pertaining
thereto
|
|
18.
|
Financing
Statement #9835860186 and all supplementals pertaining
thereto
|
|
19.
|
First
Amended and Restated Guaranty dated
1/26/05
|
|
20.
|
Continuing
Guaranty dated 9/15/99 by Xxxxx
Xxxxxxxx
|
|
21.
|
Continuing
Guaranty dated 9/15/99 by G. Xxxxx Xxxxxxx, as
Trustee
|
|
22.
|
Continuing
Guaranty dated 9/15/99 by Hill Industries,
LLC
|
|
23.
|
Continuing
Guaranty dated 9/15/99 by Hill Aviation Logistics,
LLC
|
|
24.
|
Continuing
Guaranty dated 9/15/99 by Hill Worldwide,
LLC
|
|
25.
|
Continuing
Guaranty dated 9/15/99 by Hill Aerospace & Defense,
LLC
|
|
26.
|
Commercial
Guaranty dated 2/8/99 by Xxxxx
Xxxxxxxx
|
|
27.
|
Commercial
Guaranty dated 8/7/97 by Xxxxx
Xxxxxxxx
|
|
28.
|
Commercial
Guaranty dated 2/8/99 by Hill Aviation Logistics,
LLC
|
|
29.
|
Commercial
Guaranty dated 8/7/97 by Hill Aviation Logistics,
LLC
|
|
30.
|
Commercial
Guaranty dated 2/8/99 by Hill Worldwide,
LLC
|
|
31.
|
Commercial
Guaranty dated 8/7/97 by Hill Worldwide,
LLC
|
|
32.
|
Commercial
Guaranty dated 2/8/99 by Hill Aerospace & Defense,
LLC
|
|
33.
|
Commercial
Guaranty dated 8/7/97 by Hill Aerospace & Defense,
LLC
|
|
34.
|
Commercial
Guaranty dated 2/8/99 by Hill Industries,
LLC
|
|
35.
|
Commercial
Guaranty dated 8/7/97 by Hill Industries,
LLC
|
