EXHIBIT 10
(LOGO)
FIRST REPUBLIC BANK
It's a privilege to serve you(R)
September 24, 2004
Xxxxxx X. Xxxxxxxxx
Ironstone Group, Inc.
000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxxxx:
Congratulations on your new EAGLE ONE LOAN. Enclosed you will find the "EAGLE
ONE LOAN Credit Agreement" referred to in the EAGLE ONE LOAN Application which
was submitted to First Republic Bank. Please carefully review this agreement to
be familiar with all the terms and conditions. Your draw on the credit line will
constitute your approval, and the approval of each Guarantor, to all of the
terms and conditions of the enclosed Eagle One Loan Documents; and at such time
the grant of the security interest in the Collateral as provided in the Loan
Documents will be effective. This is the approval letter identified in the
enclosed agreement; the "Basic Credit Terms" for your EAGLE ONE LOAN are as
follows:
- Your approved "Credit Limit" is $100,000 with an "Opening Date" of
SEPTEMBER 23, 2004.
- Your EAGLE ONE LOAN has a "Term" of 12 months, and will automatically
renew upon our review.
- You have qualified for a 3.00% rate reduction from our standard rate of
Prime + 3.00%, based on your existing relationship with First Republic
Bank. Your resulting variable interest rate based on Xxxxxx's Prime plus a
"Spread" of 0.00% results in an initial rate of 4.75%.
- The "Floor Rate" applicable to your Credit Line is 4.25%.
- A monthly "Regular Payment" will be debited from your checking account
000-0000-0000 on the 15TH of each month.
- Your Loan Number is 0210068644.
- You have been charged a one time nonrefundable fee of $250.00. You will be
charged an annual fee of $150.00 thereafter.
You may access funds from your EAGLE ONE Line of Credit by calling your First
Republic Bank banker to request an advance for a specific dollar amount.
Principal paydowns may be made by calling your FRB Banker, by dropping off a
check at any of our branches, or by mailing a payment to: First Republic Bank,
ATTN: Loan Servicing, 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000.
Here at First Republic Bank, we are committed to outstanding customer service
and exceptional product lines. Our primary means of gauging both is feedback
from you. We ask that you take a moment to complete the customer survey so that
we may improve our products and services for you and our other clients. Again,
congratulations, and thank you for your business.
It's a privilege to serve you,
/s/ Xxxxxx Xxxxx
----------------------------
Xxxxxx Xxxxx
SENIOR VICE PRESIDENT
BUSINESS BANKING MANAGER
SAN FRANCISCO LOS ANGELES SANTA XXXXXXX SAN DIEGO LAS VEGAS NEW YORK
--------------------------------------------------------------------------------
III PINE STREET, SAN FRANCISCO, XXXXXXXXXX 00000-0000, TEL (000) 000-0000 OR
(000) 000-0000, FAX (000) 000-0000
CONVENIENT INTERNET BANKING AT xxx.xxxxxxxxxxxxx.xxx - NEW YORK STOCK EXCHANGE
SYMBOL: FRC - MEMBER FDIC
(FIRST REPUBLIC BANK LOGO)
It's a privilege to serve you(R)
EAGLE ONE LOAN CREDIT DOCUMENTS
EFFECTIVE
AUGUST 2004
FIRST REPUBLIC BANK
EAGLE ONE LOAN
CREDIT DOCUMENTS
The EAGLE ONE LOAN CREDIT DOCUMENTS ("Documents") in this package together with
the Application and Approval Letter are part of the Agreement regarding the
loan(s) to Borrower as described in the Application and Approval Letter. The
following terms and conditions become a part of the Agreement among Bank and
Borrower, effective upon approval of the Application by Bank as stated in the
Application.
SECTION A. LOAN AMOUNT AND TERMS.
Bank will provide an E1LOC or E1TL (both as defined in the Application) ("Loan")
in an amount not to exceed the Credit Limit as set forth in the Approval Letter
("Approval Letter") sent by the Bank on the terms and conditions as follows:
1. TERMS APPLICABLE TO A LINE OF CREDIT LOAN. The following terms shall apply to
an E1LOC Loan if one is identified in the Approval Letter and Application:
(a) Bank will provide an E1LOC Loan in an amount not to exceed the Credit
Limit for the E1LOC Loan identified in the Approval Letter in periodic Advances
upon the oral or written request of Borrower to Bank as set forth in the
Approval Letter. All Advances, up to the Approved Amount, shall be disbursed
into the Account with Bank upon oral or written request of Borrower. As long as
Advances are deposited into the Account, the Bank may rely on the authority of
the Person making the request for an Advance.
(b) Interest only shall be payable on the date set forth in the Approval
Letter and on the same date of each consecutive month beginning with the first
month after the first Advance, and continuing until the date provided in Section
1.(c) below, on which date all accrued interest shall be payable in full.
(c) All principal owed on the E1LOC Loan and unpaid and accrued interest
shall be paid without
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claim, notice or presentment on the earlier of (i) a demand by Bank; (ii) the
occurrence of an Event of Default; or (iii) the Initial Deadline Date or an
Extended Deadline Date unless such Deadline Dates have been automatically
renewed as specified below. The "Initial Deadline Date" shall be thirteen (13)
months after the effective date of the line of credit Loan as specified in the
Approval Letter. This Loan shall automatically renew for an additional twelve
(12) months after the Initial Deadline Date and for consecutive twelve (12)
month periods thereafter (each an "Extended Deadline Date") unless (i) a demand
has been made by Bank, (ii) an Event of Default has occurred and is continuing,
or (iii) Bank notifies Borrower within thirty (30) days prior to the Initial
Deadline Date or any Extended Deadline Date that the Loan is due or will not be
automatically extended.
2. TERMS APPLICABLE TO A TERM LOAN.
The following terms shall apply to a E1TL Loan if one is identified in the
Approval Letter and Application:
(a) Bank will provide an E1TL Loan in a single Advance in an amount not to
exceed the Credit Limit for the E1TL identified in the Approval Letter and which
Advance shall be deposited into the Account.
(b) Principal and interest shall be payable on the date set forth in the
Approval Letter and on the same date of each consecutive month beginning with
the first month after the first Advance, and continuing until the date provided
in Section 2.(c) below, on which date all accrued principal and interest shall
be payable in full.
(c) All principal owed on the E1TL Loan and unpaid and accrued interest
shall be paid without claim, notice or presentment on the earlier of (i) the
occurrence of an Event of Default; or (ii) the Maturity Date as provided in the
Approval Letter.
3. TERMS APPLICABLE TO BOTH A LINE OF CREDIT LOAN AND A TERM LOAN.
(a) CREDIT PAYMENT; INTEREST RATE.
(i) Borrower promises to pay to Bank, or order, at its office at 000
Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, or at such other place as
the holder hereof may designate, in lawful money of the
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United States of America the Approved Amount or so much thereof as
may be advanced from time to time under the terms and conditions of
this Section A, together with interest as provided above on the
unpaid principal of the Loan.
(ii) Interest on the Loan shall accrue from the date of any Advance
and be calculated as a floating rate based on the Prime Rate plus
the Spread set forth in the Approval Letter ("Interest Rate"), and
shall accrue daily from the date of any Advance. The Interest Rate
shall be adjusted upon a change in the Prime Rate; provided,
however, it shall never be less than the Floor Rate set forth in the
Approval Letter.
(iii) All interest shall be computed on the basis of a 360-day year
for actual days elapsed. Xxxxxxxx acknowledges and agrees that the
calculation of interest on this basis may result in the accrual and
payment of interest in amounts greater than those which would be
payable if interest were calculated on the basis of a three hundred
sixty-five (365) day year.
(iv) Borrower may prepay the Loan in full or in part at any time.
(b) CREDIT FEE. Bank may deduct a fee in an amount and on the date as set
forth in the Approval Letter and thereafter annually on the anniversary of such
date.
(c) AUTOMATIC PAYMENT AUTHORIZATION. Borrower authorizes Bank to make
automatic deductions from the Account as defined in Section A of the Application
in order to pay all of the regularly scheduled installment payments of principal
and/or interest on the Loan and the payment of the principal of the Loan at
maturity (a "Regular Payment") that Borrower is obligated to make to Bank as
provided in the Approval Letter. This authorization shall continue in full force
and effect until the date which is five (5) Business Days after the date on
which Bank actually receives written notice from Borrower expressly revoking
this authority granted to Bank. Bank reserves the right to terminate the
arrangement for automatic deductions from the Account at any time effective upon
written notice to Borrower. Borrower shall maintain the Account at all times
during the term of this Agreement.
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(d) AFTER MATURITY/DEFAULT INTEREST RATE. At Banks sole option in each
instance, upon the occurrence of an Event of Default (whether or not Bank has
elected to accelerate unpaid interest or principal under the Agreement as a
result of such default), or after the maturity date (whether the stated maturity
date or the maturity date resulting from Bank's acceleration of unpaid interest
and principal), then interest on the unpaid principal balance shall accrue at a
rate of interest of five percent (5%) above the Interest Rate.
(e) LATE CHARGE. If a Regular Payment in the full amount due is not
received on or before the tenth (10th) day following the day the Regular Payment
is due, Bank may assess a late charge in the amount of 4% of the amount of the
overdue Regular Payment. Xxxxxxxx agrees that the actual damages suffered by
Bank because of any late Regular Payment are extremely difficult and
impracticable to ascertain, and the late charge described in this Section
represents a reasonable attempt to fix such damages under the circumstances
existing at the time the Approval Letter is executed. Bank's acceptance of any
late charge shall not constitute a waiver of any of the terms of the Agreement
and shall not affect Bank's right to enforce any of its rights and remedies
against any Person liable for payment of the Loan.
(f) APPLICATION OF REGULAR PAYMENTS. Upon the occurrence of an Event of
Default, at its option, Bank shall have the right to apply all Regular Payments
made under the Agreement to principal, interest, and other charges, fees, costs
and expenses payable by Borrower under the Agreement or in connection with the
Loan in such order and amounts as Bank may determine in its sole discretion.
(g) USE OF PROCEEDS. The Loan shall be used for business or commercial
purposes in connection with the business of Borrower and not for personal,
family or household purposes, and no part of the proceeds of the Loan shall be
used to purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
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SECTION B. GENERAL TERMS AND CONDITIONS
The following terms and conditions and representations are part of the Agreement
among Bank and Borrower:
1. REPRESENTATIONS AND WARRANTIES.
Until Bank is repaid in full, each Borrower makes the following representations
and warranties:
(a) EXISTENCE. If Borrower is an entity, it is duly organized, validly
existing and in good standing under the laws of the state in which it is
organized, and each is qualified to do business and is in good standing in each
jurisdiction in which the ownership of its assets or the conduct of its business
requires qualification as a foreign entity.
(b) AUTHORITY. The Agreement and each other document delivered to Bank in
connection with the Loan have been duly authorized, and upon their execution
and delivery will constitute legal, valid and binding agreements and obligations
of Borrower, Guarantor or any Person which executes the same, enforceable in
accordance with their respective terms.
(c) BORROWER. In the Application:
(i) the full and correct name and address;
(ii) state of formation; and
(iii) all trade names for Borrower are complete and accurate.
(d) No CONFLICTS. The execution, delivery and performance by Xxxxxxxx,
Guarantor or any Person of the Agreement and other documents executed in
connection with the Loan and the granting of any liens shall not:
(i) violate any Governmental Requirements applicable to such entity;
(ii) constitute a breach of any provision contained in the
organizational papers of such entity; or
(iii) constitute an event of default under any agreement to which
such entity is now a party or by which such entity may be bound.
(e) FINANCIAL INFORMATION. All financial and other information that has
been or will be supplied to
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Bank is sufficiently complete to give Bank accurate knowledge of Xxxxxxxx's and
each Guarantor's financial condition and is a true statement of Xxxxxxxx's and
each Guarantor's financial condition and reflects any and all contingent
liabilities.
(f) LAWSUITS. There is no lawsuit, tax claim or adjustment or other
dispute pending or threatened against Borrower or any Guarantor, their property
or any of their businesses, or the Collateral.
(g) COMPLIANCE AND TAXES. Borrower and each Guarantor is in compliance
with all Governmental Requirements and satisfied all Taxes, due or payable by
Borrower or Guarantor or any item of Collateral before delinquency.
(h) PERMITS, FRANCHISES. Borrower and Guarantor each possesses, and will
maintain, all Governmental Permits, memberships, franchises, contracts and
licenses required and all trademark rights, trade names, trade name rights,
patents, patent rights and fictitious name rights necessary to enable Borrower
or Guarantor to conduct the business in which Borrower or Guarantor is now
engaged without conflict with the rights of others.
(i) NO DEFAULTS. There is no default by Borrower or any Guarantor on any
obligation for borrowed money, any purchase money obligation or any other
material lease, commitment, contract, instrument or obligation to which it is a
party.
(j) TITLE TO ASSETS. Borrower has and at all times will have good,
marketable and indefeasible title to the Collateral, free and clear of all
liens, claims, encumbrances, or other security interests except Permitted Liens;
and the right to grant the security interest in the Collateral.
(k) NO OFFSETS. Each account, right to payment, instrument, document,
chattel paper and other item of Collateral is (or will be when arising or
issued) the valid and legally enforceable obligation, subject to no defense or
set off (other than those arising in the ordinary course of business) of the
obligor named therein.
(l) CONTINUING AND CUMULATIVE WARRANTIES. The warranties and
representations set forth in this Section and in any other agreement shall be
true and correct at the time of execution of the Agreement and
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shall constitute continuing representations and warranties as long as any of the
Obligations remain unpaid or unperformed. The warranties and representations
shall be cumulative and in addition to any and all other warranties and
representations which Borrower shall give, or cause to be given, to Bank, either
now or hereafter.
2. COVENANTS. Each Borrower agrees, until Bank is repaid in full or the
Agreement is terminated, whichever occurs first:
(a) ACCOUNTING METHODS; BOOKS AND RECORDS. Each shall maintain a standard
and modern system of accounting in accordance with generally accepted accounting
principles, consistently applied; not modify or change its method of accounting;
permit Bank and any of Bank's representatives, on demand, during its usual
business hours, or the usual business hours of third persons having control
thereof, to have access to and examine all of its books relating to any of the
Obligations, its financial condition and the results of its operations. Each
irrevocably authorizes all accountants and auditors employed or retained by it
to respond to and answer all requests from Bank for financial and other
information. Upon Bank's request, each shall deliver to Bank such reports and
information concerning its business, financial condition and affairs as Bank may
reasonably request.
(b) EXISTENCE. Each shall maintain its existence in good standing under
the law of the state of its organization and maintain its qualification as a
foreign entity in each jurisdiction in which the nature of its business requires
such qualification.
(c) CHANGE. No Borrower or Guarantor shall, without the prior written
consent of Bank,
(i) change its name, business structure, identity or state of
formation or dissolve, suspend business, liquidate, merge, transfer
or consolidate with any other entity;
(ii) without at least thirty days' prior written notice to Bank,
change the location of its business;
(iii) transfer or sell any of its assets other than in the ordinary
course of business; and
(iv) purchase or lease all or the greater part of the assets or
business of another.
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(d) RELIANCE BY BANK. The Bank may conclusively presume that all
requests, statements, information, certifications, and representations, whether
written or oral, submitted or made by Borrower or any of their agents to Bank
in connection with the Loan are true and correct, and Bank shall be entitled to
rely thereon, without investigation or inquiry of any kind by Bank.
(e) FINANCIAL INFORMATION. Each shall deliver or cause to be delivered to
Bank within ten (10) days of a request from Bank, updated financial information
described in the Application. Each shall be at all times in compliance with all
financial requirements of Bank and shall immediately notify Bank of any adverse
change in the financial condition of Borrower and each Guarantor. Each
acknowledges that Bank will review its credit annually and authorizes Bank to
make whatever inquiries it deems necessary and appropriate, including for the
purposes of verifying or checking on any information given and evaluating
Borrower's or any Guarantors credit and reverifying their credit from time to
time, including obtaining credit bureau reports.
(f) LIQUIDITY. Each shall remain liquid at all times during the term of
this Loan such that the total value of its assets will exceed its liabilities
(contingent and non-contingent) and will be able to pay its debts as they come
due.
(g) MAINTENANCE OF PROPERTIES. Each shall maintain its business properties
in good condition and repair. Borrower shall pay when due all judgment claims
against either.
(h) TAXES. Each shall pay when due all Taxes.
(i) INSURANCE. Each shall keep in force insurance with companies
acceptable to Bank and in such amounts and types as is usual in the business
carried on by each, or as Bank may reasonably request. Insurance policies shall
be in form and substance satisfactory to Bank.
(j) PENSION PLANS. Each shall pay all amounts necessary to fund all of its
employee benefit plans in accordance with their terms, and neither shall permit
the occurrence of any event with respect to any such plan which would result in
its liability, including any
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liability to the Pension Benefit Guaranty Corporation or any other Governmental
Authority.
(k) COMPLIANCE WITH LAWS. Each shall at all times comply with and keep in
effect all Governmental Permits relating to it, the Collateral, and its other
assets. Each shall at all times comply with and shall cause the Collateral to
comply with:
(i) all Governmental Requirements;
(ii) all requirements and orders of all judicial authorities which
have jurisdiction over it or the Collateral; and
(iii) all covenants, conditions, restrictions and other documents
relating to it or the Collateral.
(l) NOTIFICATIONS. Each shall promptly notify Bank of:
(i) any material adverse change in its or any Guarantor's financial
condition and of any condition or event which constitutes a breach
of or Event of Default under the Agreement; and
(ii) any material pending, threatened or imminent litigation,
governmental investigations or claims, complaints, actions or
prosecutions involving Borrower or any Guarantor.
(m) BANK EXPENSES. Each agrees to reimburse Bank for any and all Bank
Expenses, and hereby authorizes and approves all advances and payments by Bank
for items constituting Bank Expenses.
3. WAIVERS. Each Borrower waives:
(a) presentment, demand for payment, protest, notice of demand, dishonor,
protest and non-payment, and all other notices and demands in connection with
the delivery, acceptance, performance, default under, and enforcement of the
Agreement;
(b) the right to assert any statute of limitations as a defense to the
enforcement of any or all of the Agreement to the fullest extent permitted by
law;
(c) all rights, remedies, and benefits under California Civil Code
Sections 1479 and 2822(a) and
(d) all rights to require marshalling of assets or liens or all rights to
require Bank to exercise any other right or power or to pursue any other remedy
which Bank may have.
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4. DEFAULT. Bank, at its option, may declare Borrower to be in default under the
Agreement upon the occurrence of any or all of the following events (the
declaration of such a default by Bank shall constitute an "Event of Default"):
(a) FAILURE TO PAY. Borrower or Guarantor fails to make a payment under
the Agreement when due.
(b) FAILURE TO PERFORM. Borrower or any Guarantor or Person fails to
perform any obligation or comply with any requirement under the Agreement or any
Guaranty beyond any applicable cure period, if any.
(c) MISREPRESENTATION. If any statement, information, certification,
representation or warranty, whether oral or written, made by Borrower or any
Guarantor to Bank is false or misleading.
(d) INSOLVENCY. If an Insolvency Proceeding is commenced by Borrower or
any Guarantor; or if an Involuntary Insolvency Proceeding is commenced against
Borrower or any Guarantor and not dismissed within sixty (60) days.
(e) RECEIVERS; TERMINATION. A receiver or similar official is appointed
for any of Borrower's assets; or Guarantor or any co-guarantor is liquidated or
dissolved.
(f) INJUNCTION. If Borrower or Guarantor is enjoined, restrained or in any
way prevented by court order from continuing to conduct all or any material part
of Borrower's or Guarantor's business affairs.
(g) SECURITY. If the validity or priority of the Bank's security interest
in the Collateral is impaired for any reason or Bank, in good faith, believes
the Collateral is in danger of misuse, dissipation; loss or damage.
(h) TRANSFERS; DISSOLUTION; DEATH. The dissolution, termination or
liquidation of Borrower or Guarantor if it is a corporation, partnership,
limited liability company or other entity; or the transfer of more than
twenty-five percent (25%) of the beneficial interests in Borrower or Guarantor;
or the death or incompetency of Borrower or Guarantor if Borrower or Guarantor
is an individual.
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(i) LAWSUITS. Any lawsuit or lawsuits are filed against Borrower or
Guarantor which, if lost, would materially impair its financial condition or
ability to repay the Loan.
(j) JUDGMENTS. Any judgments or arbitration awards are entered against
Borrower or Guarantor, or any of them enters into any settlement agreements with
respect to any litigation or arbitration, any of which would materially impair
Xxxxxxxx's or Guarantor's financial condition or ability to repay the loan.
(k) MATERIAL ADVERSE CHANGE. A material adverse change occurs in
Borrower's financial condition from that shown in the original Application, or
in Borrower's ability to repay the Loan, or in the Collateral, including,
without limitation, failure to remain liquid as provided in Section B.2.(f).
5. REMEDIES. If an Event of Default shall have occurred and not been cured or
waived in accordance with the terms hereof, Bank shall have the following rights
and powers and may, at its option, without notice of its election and without
demand, do any one or more of the following:
(a) accelerate and declare any or all of the Obligations to be immediately
due and payable;
(b) discontinue advancing money or extending credit to or for the benefit
of Borrower in connection with the Loan or under any other document or agreement
between Bank and Borrower; or
(c) exercise any or all rights and remedies under any or all of the
Agreement and applicable law.
6. INDEMNIFICATION. Borrower shall indemnify and hold the Bank harmless from
and against any and all claims, damages, liabilities, actions, and expenses
(including attorneys' fees and costs) of every kind (collectively, the "Claims")
arising out of or relating to any of the following:
(a) a breach of any Obligations or warranties under the Agreement;
(b) any act or omission by Borrower or Guarantor or their
employees/agents; or
(c) the Collateral or any of Borrower's properties. Xxxxxxxx's obligation
to indemnify under this
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Section 6 shall survive the cancellation of the Obligations and the release of
the Bank's lien on any Collateral.
7. MISCELLANEOUS.
(a) RELATIONSHIP. Bank shall not be deemed a partner, joint venturer,
trustee, fiduciary or participant in Borrower or Xxxxxxxx's business. The
relationship of Borrower and Bank is solely that of borrower and bank.
(b) POWER OF ATTORNEY. Each Borrower irrevocably appoints Bank, with full
power of substitution, as its attorney-in-fact, coupled with an interest, with
full power, in Bank's own name or in the name of Borrower:
(i) to sign, record and file all documents referred to in the
Agreement;
(ii) and after an Event of Default:
(a) endorse any checks, notes, and other instruments or
documents evidencing the Collateral, or proceeds thereof;
(b) discharge claims, demands, liens, or taxes affecting any
of the Collateral;
(c) collect payment on any Collateral;
(d) xxxxxx, and give releases of, any insurance claim that
relates to any of the Collateral, obtain payment of claim, and
make all determinations with respect to any such policy of
insurance, and endorse Xxxxxxxx's name on any proceeds of such
policies of insurance;
(e) instruct any accountant or other person having control of
any books or records relating to the Collateral to give Bank
full rights of access with respect thereto;
(f) execute on behalf of Borrower any document exercising or
assigning any option to purchase, sell, dispose of or lease
any; and
(g) deal with any of the Collateral as though Bank were the
owner thereof. Bank shall have the right to exercise the power
of attorney granted in this Section directly or to delegate
all or part of such power. Bank shall not be obligated to act
on behalf of Borrower as attorney-in-fact.
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SECTION C. SECURITY AGREEMENT
The following terms and conditions and representations are a part of the
agreement among Bank and Borrower. This Section C applies to any Borrower
granting a security interest as set forth below.
1. SECURITY INTEREST. Borrower hereby grants to Bank a continuing valid, first
priority security interest in all of the following present and future assets now
owned or hereafter acquired ("Collateral"):
(a) Equipment;
(b) Inventory;
(c) Farm Products;
(d) fixtures located at Borrower's business location at the address set
forth in the Application;
(e) other Goods, Instruments and Documents;
(f) Chattel Paper;
(g) General Intangibles;
(h) Accounts and all other obligations now or hereafter owing to Borrower;
(i) all deposit accounts and certificates of deposit, Regular Payment
Intangibles, including those maintained with Bank
(j) Investment Property,
(k) Letters of Credit Rights;
(l) all Supporting Obligations;
(m) all proceeds and products of the foregoing; and
(n) all of each Borrower's Books relating to the foregoing. Terms used
herein shall have the meanings provided in the California Commercial Code.
2. COVENANTS. Until Bank is repaid in full, Borrower hereby covenants and agrees
as follows:
(a) NOTIFICATIONS. It shall promptly notify Bank of any material loss of
or damage to any Collateral or of any adverse change, known to Borrower, in the
prospect of payment of any material sums due on or under any item of Collateral.
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(b) GOOD REPAIR. It shall:
(i) keep all tangible Collateral in good repair, normal depreciation
excepted;
(ii) not misuse or permit the misuse of any Collateral; or
(iii) use or permit the use of any item of Collateral for any
unlawful purpose or in any negligent manner.
Borrower shall use all tangible Collateral only in the ordinary course of its
business and in a manner consistent with the terms of all insurance policies
relating to said Collateral.
(c) TAXES. Borrower shall promptly pay all Taxes assessed upon or against
any Collateral or the security interest.
(d) LIEN FREE. Except for the lien of Bank and Permitted Liens, Borrower
shall keep all Collateral free and clear of all liens, claims, or restrictions
on the use or removal thereof, including without limitation landlords' liens.
(e) INSPECTION. Borrower shall at all reasonable times, permit Bank or its
representatives to examine or inspect (on two (2) business days' notice) any
Collateral wherever located, and to examine, inspect and copy Xxxxxxxx's books
and records pertaining to the Collateral and its business and financial
condition and to discuss with Account Debtors and other obligors requests for
verifications of amounts owed to Borrower.
(f) RECORDS. Borrower shall keep accurate and complete books and records
pertaining to the Collateral.
(g) REPORTS. On Bank's request, Xxxxxxxx shall deliver to Bank such
reports and information available to Borrower's management concerning the
Collateral and Borrower's business and affairs as Bank may reasonably request.
All reports and information provided to Bank by Borrower shall be complete and
accurate in all material respects.
(h) DELIVERY. On Bank's request (before or after an Event of Default),
Borrower shall, deliver to Bank any instrument, document or chattel paper
constituting Collateral, duly endorsed or assigned by Xxxxxxxx.
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(i) INSURANCE. Borrower shall at all times keep all tangible Collateral
insured against risks of fire (including so-called extended coverage), theft,
collision (in case of Collateral consisting of motor vehicles) and such other
risks and in such amounts as Bank may reasonably request, with any loss payable
to Bank to the extent of its interest and the value of such Collateral.
(j) USE. Borrower shall not use or keep any Collateral, or permit it to be
used or kept, for any unlawful purpose or in violation of any Governmental
Requirements.
(k) FIXTURES. Borrower shall not permit any Collateral to be affixed to
any real property without first assuring to the reasonable satisfaction of Bank
that the Security Interest will be senior to any other interest then or
thereafter held by any lienholder or owner or purchaser of the real property.
3. EVENTS OF DEFAULT. In addition to the Events of Default set forth elsewhere
in the Agreement, an additional Event of Default shall be if any of Borrower's
assets are attached, or are levied upon, or come into the possession of any
Judicial Officer or Assignee.
4. BANK'S RIGHTS AND REMEDIES. If an Event of Default shall have occurred and
not been cured or waived in accordance with the terms hereof, Bank shall have
the following rights, at its option, without notice of its election and without
demand, do any one or more of the following:
(a) UCC RIGHTS. Bank shall have all of the rights and remedies of a
secured party under the Code and under the Agreement and under all other
applicable laws.
(b) PAYMENTS. Without notice to or demand upon Borrower or any Guarantor,
make such payments and do such acts as Bank considers reasonable to protect its
security interest in the Collateral, to satisfy or contest or compromise any
lien, charge or claim which in the opinion of Bank appears to be superior to
Bank's interest and to pay all related expenses. Borrower shall promptly
reimburse Bank therefore as Bank Expenses. Any payments made by Bank shall not
constitute:
(i) an agreement by Bank to make similar payments in the future, or
16
(ii) a waiver by Bank of any default under the Agreement.
Bank need not inquire as to, or contest the validity of, any such expense, tax,
security interest, encumbrance or lien and the receipt of the usual official
notice for the payment thereof shall be conclusive evidence that the same was
validly due and owing.
(c) LICENSE. In taking such action Bank shall have a license to use any
trademarks, trade names or all Intellectual Property in disposing of the assets.
(d) RECEIVER. Bank may obtain the appointment of a receiver to take
possession of and, at the option of Bank, to collect, sell or dispose of the
Collateral.
(e) JUDICIAL ACTION. Bank may obtain a judgment for breach of any of the
Obligations and foreclose or otherwise enforce its security interest in the
Collateral by any judicial procedure.
(f) PROCEEDS OF COLLATERAL. The proceeds of any disposition of the
Collateral by Bank shall be applied as provided in the Code or under other
applicable law.
(g) REMEDIES CUMULATIVE. The remedies of Bank, as provided herein, shall
be cumulative and concurrent, and may be pursued singularly, successively or
together, at the sole discretion of Bank, and may be exercised as often as
occasion therefore shall arise.
5. LIABILITY FOR DEFICIENCY. Borrower shall at all times remain liable for any
deficiency remaining on the Obligations for which Borrower is liable after any
disposition of Collateral.
6. ACTIONS. Bank shall have the right, but not the obligation, to commence,
appear in, or defend any action or proceeding which affects or which Bank
determines may affect:
(a) the Collateral;
(b) Borrower's or Bank's rights or obligations under the Agreement;
(c) the Loan.
17
SECTION D. CONTINUING GUARANTY
The following terms and conditions and representations are part of the Agreement
among Bank, Borrower and Guarantor. This Section D applies to any Guarantor as
identified in the Application.
1. GUARANTY OF PAYMENT AND PERFORMANCE. Guarantor, as primary obligor and not
merely as surety, absolutely and unconditionally guarantees and promises to pay
Bank or order, on demand, in lawful money of the United States, any and all
Obligations (as hereinafter defined) of Borrower to Bank under any existing or
future agreement with Bank, and also absolutely and unconditionally guarantees
the due performance by Borrower of all its Obligations under all existing and
future agreements with Bank.
2. CONTINUING GUARANTY. This Guaranty is, as to each Guarantor, a continuing
guaranty, which shall remain effective without reaffirmation until it has been
terminated in writing sent by certified mail to Bank at the address set forth in
the Application. Such termination shall be applicable only to transactions
committed to or having their inception after the effective date of termination
and upon actual receipt of written notice by Bank and shall not affect rights
and obligations arising out of transactions committed to or having their
inception prior to such date. Termination by any Guarantor shall not affect the
continuing liability hereunder of any Guarantor who does not give notice of
termination. This Guaranty shall not be impaired by any modification,
supplement, extension or amendment of any contract or agreement to which the
parties thereto may hereafter agree, or by any modification, release or other
alteration of any of the Obligations hereby guaranteed or of any security
therefore, including without limitation, pursuant to a bankruptcy or
reorganization proceeding in connection with Borrower, or by any agreement or
arrangements whatsoever with Borrower or anyone else. Guarantor acknowledges and
agrees that the Obligations of Borrower are a revolving credit and/or that the
amount of the Obligations may at any one time be zero dollars, which shall not
constitute a termination of this Guaranty.
18
3. JOINT AND SEVERAL OBLIGATIONS. The obligations hereunder are joint and
several as to each and every Guarantor, and are independent of Borrower's
obligations. A separate action or actions may be brought against Guarantor, or
any one of them, whether action is brought against Borrower or whether Xxxxxxxx
is joined in any such action or actions. Each Guarantor agrees that any releases
which may be given by Bank to any one or more of the Guarantor shall not release
him, her or it from this Guaranty.
4. AUTHORIZATION. Guarantor authorizes Bank, without notice or demand and
without affecting its Lability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate or other wise change the time
for payment of, or otherwise change any of the terms of the Obligations;
(b) take and hold security for the payment of this Guaranty or the
Obligations, and exchange, enforce, waive and release any such security;
(c) apply such security and direct the order or manner of sale thereof as
Bank in its sole discretion may determine;
(d) accept or discharge (in whole or in part) additional guarantors; and
(e) assign, without notice, this Guaranty in whole or in part and/or
Bank's rights hereunder to anyone at any time.
5. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and warrants to
Bank that:
(a) to the best of its knowledge, upon execution of this Guaranty, it will
remain liquid; the total value of its assets will exceed its liabilities
(contingent and non-contingent); and it will be able to pay its debts as they
come due;
(b) it has duly authorized by all necessary action the execution, delivery
and performance of the Guaranty and in accordance with the provisions hereof
will constitute legal, valid and binding obligations of Guarantor, enforceable
in accordance with their respective terms;
19
(c) the execution, delivery and performance by it of this Agreement shall
not:
(i) violate any Governmental Requirements by which it is bound;
(ii) constitute an event of default under any agreement to which it
is now a party or by which it may be bound; or
(iii) will conflict with or result in the breach of, or require any
consent under, its organizational documents;
(d) all its financial statements and information delivered to Bank are
true and correct and have been prepared in accordance with generally accepted
accounting principles consistently applied, and there has been no material
adverse change in its financial condition;
(e) there are not presently any actions or proceedings pending by or
against it before any court or administrative agency, and it has no knowledge of
any pending, threatened or imminent litigation, govern mental investigations or
claims, complaints, actions or prosecutions;
(f) its sole place of business or chief executive office or residence is
as set forth in the Application, and it covenants and agrees that it will not,
during the term of this Agreement, without thirty (30) days' prior written
notification to Bank, relocate its place of business or chief executive office
or residence; and
(g) its warranties and representations set forth in this Section shall be
true and correct at the time of execution of the Agreement by Guarantor and
shall constitute continuing representations and warranties as long as any of
the Obligations remain unpaid or unperformed.
The warranties, representations and agreements set forth herein shall be
cumulative and in addition to any and all other warranties, representations and
agreements which it shall give, or cause to be given, to Bank, either now or
hereafter.
6. COVENANTS. Until Bank is repaid in full or the Agreement is terminated,
whichever occurs first:
(a) ACCOUNTING METHODS. Guarantor shall maintain a standard and modern
system of accounting in accordance with generally accepted accounting prin-
20
ciples consistently applied, as may from time-to-time be required by Bank; not
modify or change its method of accounting; permit Bank and any of Bank's
representatives, on demand, during its usual business hours, or the usual
business hours of third persons having control thereof, to have access to and
examine all of its books relating to any of its obligations to Bank, its
financial condition and the results of Guarantor's operations, and, in
connection therewith, permit Bank or any of Bank's representatives to copy and
make extracts therefrom.
(b) FINANCIAL INFORMATION. Guarantor shall deliver or cause to be
delivered to Bank within ten (10) days of a request from Bank financial
information described in the Application, which shall be complete and prepared
in accordance with generally accepted accounting principles. Guarantor shall be
at all times in compliance with all financial requirements of Bank.
(c) NOTIFICATIONS. Guarantor shall promptly notify Bank of:
(i) any material adverse change in Guarantor's financial condition
and of any condition which constitutes a breach or Event of Default;
(ii) any material pending, threatened litigation, investigations or
claims involving Guarantor; or
(iii) any material adverse change in Guarantor's financial status.
7. WAIVERS. Guarantor waives any right to require Bank to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from any person or
marshalling of assets or liens; (c) proceed against any other Guarantor; or (d)
pursue any other remedy available to Bank. Guarantor waives any defense arising
by reason of any disability or other defense of Borrower or by reason of the
cessation from any cause whatsoever of the liability of Borrower. Guarantor
waives all presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, notices of default or demand,
notices of acceptance of and reliance on this Guaranty and of the existence,
creation, or incurring of new or additional indebtedness, notices of renewal,
extension or modification of the Obligations, notice of any and all favorable
and unfavorable information, whether financial or other,
21
about Borrower, heretofore, now, or hereafter learned or acquired by Bank and
all other notices to which Guarantor or any of them might otherwise be entitled,
and the right to a jury trial in any action hereunder or arising out of Bank's
transactions with Borrower. Guarantor hereby waives any and all suretyship
defenses now or hereafter available to it under the California Civil Code or the
Commercial Code, including, without limitation, (i) California Civil Code
Sections 2799, 2808, 2809, 2810, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2845,
2846, 2847, 2848, 2849, 2850, 2899 and 3433; (ii) Chapter 2 of Title 14 of the
California Civil Code; or (iii) California Commercial Code Section 3605.
Guarantor waives the benefit of any statute of limitations affecting its
liability hereunder or the enforcement hereof. Guarantor acknowledges that the
waivers provided herein are made with Guarantor's full knowledge of the
significance and consequence of such waivers, and that Bank is relying on such
waivers.
8. SUBROGATION; SUBORDINATION. So long as any Obligations of Borrower to Bank
remains outstanding, Guarantor waives and agrees not to assert any right of
subrogation, indemnity or contribution against Borrower or any other person, and
any right to participate in security now or hereafter held by Bank, including,
without limitation, any such right set forth in California Civil Code Sections
1845, 2848 or 2849. Any and all present and future debts and obligations of
Borrower to each Guarantor are hereby subordinated to the full payment and
performance of all Obligations of Borrower to Bank. Any amounts received on such
Obligations or obligations owed to Guarantor shall be held by Guarantor as
trustee and paid over to Bank without affecting Guarantor's liability under this
Guaranty.
9. FINANCIAL CONDITION. Guarantor assumes the responsibility to keep informed of
the financial status of Borrower and of any circumstance which may affect
Guarantor's obligations or Borrower's, and Guarantor recognizes and agrees that
Bank is not obligated to keep Guarantor informed of any such circumstances.
Where Borrower is a corporation, partnership or limited liability company it is
not necessary for Bank to inquire into the powers of Borrower or the officers,
directors, partners, manager or agents acting or purporting to act on its
behalf, and any Obligations made or created in reliance upon the
22
professed exercise of such powers shall be guaranteed hereunder. Guarantor
agrees that by executing this Guaranty it assumes all risks of bankruptcy or
reorganization cases or proceedings in connection with Borrower.
10. REVIVAL. If Bank is required to reimburse to Borrower or any person any
amount previously paid or recovered on account of the Obligations as a
preference, fraudulent transfer or because of any bankruptcy proceeding or
similar proceeding, Guarantor's obligations shall be reinstated and revived.
11. MISCELLANEOUS.
(a) DEATH OF GUARANTOR; BINDING EFFECT. The death of any Guarantor shall
not terminate this Guaranty as to such deceased or as to any other Guarantor.
This Guaranty shall be binding upon the heirs, executors, administrators,
successors and assigns of each Guarantor and shall inure to the benefit of
Bank's successors and assigns. Guarantor may not assign its rights or
obligations hereunder.
(b) SINGULAR; PLURAL. In all cases where there is more than one Borrower
named herein, or when this Guaranty is executed by more than one Guarantor, the
"Borrower" and the word "Guarantor," respectively, shall mean all and any one
or more of them.
(c) CONSULTATION WITH ATTORNEY. Each Guarantor declares that he, she or it
understands the contents of this Guaranty and has had an opportunity to consult
with an attorney regarding the form and content of this Guaranty.
SECTION E. MISCELLANEOUS
The following terms and conditions are part of this Agreement among Bank,
Borrower and Guarantor and applies to Borrower and Guarantor with respect to the
Agreement.
(a) CHOICE OF LAW; VENUE. The Agreement shall be governed by and construed
in accordance with California law. The parties agree that all actions or
proceedings arising in connection with the Agreement shall be litigated only in
the state courts located in the County of San Francisco, State of California, or
the federal courts located in the Northern District of California. Each waives
any
23
right it may have to assert the doctrine of forum non conveniens or to object to
such venue and hereby consents to any court-ordered relief.
(b) SUCCESSORS AND ASSIGNS. The Agreement shall be binding on Borrower's,
Guarantor's and Bank's successors and assigns. Xxxxxxxx and Xxxxxxxxx each
agrees that they may not assign any of the Agreement without Bank's prior
consent. Bank may assign, in whole or in part, all of its right, title and
interest in and to the Agreement at any time without the consent of Borrower or
Guarantor. In connection with any assignment, Bank may disclose all documents
and information that Bank has or may hereafter have relating to Borrower or
Guarantor.
(c) TIME OF ESSENCE. Time is of the essence of each provision of the
Agreement.
(d) SEVERABILITY; WAIVERS. Each provision of the Agreement shall be
severable from every other provision of the Agreement for the purpose of
determining the legal enforceability of any provision. No waiver by Bank of
any of its rights or remedies in connection with the Agreement shall be
effective unless it is in writing and signed by Bank. No omission by Bank to
exercise a right as to any event shall be interpreted as a waiver or release of
any subsequent right or remedy as to a subsequent event.
(e) ATTORNEYS' FEES. On demand Borrower and Guarantor shall reimburse Bank
for all costs and expenses, including, without limitation, reasonable attorneys'
fees costs and disbursements (and fees and disbursements of Bank's in-house
counsel) (collectively the "Fees and Costs") expended or incurred by Bank in
any way in connection with the amendment, interpretation and enforcement of the
Agreement and Bank's rights hereunder and to the Collateral. Fees and Costs
shall include, without limitation, attorneys fees and costs incurred in any
State, Federal or Bankruptcy Court, and in any Insolvency Proceeding of any
kind.
(f) NOTICES. Any notice or demand required under the Agreement shall be
given in writing (at the addresses set forth in the Application) by any of the
following means:
(i) personal service;
24
(ii) telegram or telecopying or electronic mail;
(iii) overnight courier; or
(iv) registered or certified, first class U.S. mail, return receipt
requested, or to such other addresses as the parties may specify
from time to time in writing.
Any notice, demand sent pursuant to either subsection (i) or (ii), above, shall
be deemed received upon such personal service or upon dispatch by electronic
means. Any notice, demand or request sent pursuant to subsection (iii), above,
shall be deemed received on the business day immediately following deposit with
the overnight courier, and, if sent pursuant to subsection (iv), above, shall be
deemed received forty-eight (48) hours following deposit into the U.S. mail.
(g) HEADINGS. Article and paragraph headings are for reference only and
shall not affect the interpretation or meaning of any provisions of the
Agreement.
(h) NO THIRD PARTY BENEFICIARIES. The Agreement is entered into for the
benefit of Bank and Guarantors and their respective permitted successors and
assigns. No other Person shall have any rights under the Agreement.
(i) INTEGRATION AND AMENDMENT. The Agreement and any other documents
executed in connection with the Agreement may not be changed or terminated
orally. No modification to the Agreement or any other documents shall be
effective unless in writing signed by Bank. Except for currently existing
obligations of Borrower to Bank, all prior agreements, representations,
warranties and negotiations between the parties (oral or written), if any, are
merged into the Agreement.
(j) CONSTRUCTION. Neither the Agreement nor any ambiguity therein shall be
construed against Bank, whether under any rule of construction or otherwise. The
Agreement has been reviewed by all parties and shall be interpreted according to
the ordinary meaning of the words except as expressly defined herein or in the
Code.
(k) JOINT AND SEVERAL LIABILITY. If more than one Person or entity signs
the Agreement (other than the Guarantor), the obligations of each signatory
(other than the Guarantor) shall be joint and several.
25
(l) FURTHER ASSURANCES. Within seven (7) days after written request by
Bank, Borrower or Guarantor will execute and deliver to Bank further documents
as may reasonably be requested by Bank.
(m) REMEDIES. All rights and remedies under the Agreement and under any
other agreement between Bank and Borrower or Guarantor shall be cumulative and
in addition to all right, power and remedies given to Bank at law.
(n) MARRIED PERSONS. Any married person who signs the Application hereby
expressly agrees that recourse may be had against his/her community or separate
property for all his/her obligations under the Agreement.
SECTION F. DEFINITIONS
For purposes of the Agreement, the following terms shall have the following
definitions in addition to the definitions provided elsewhere in these
documents:
(a) ACCOUNT DEBTORS means all persons who now are or hereafter become in
any way obligated, liable, or responsible for any payment of any kind in
connection with any or all of the Accounts.
(b) ADVANCE(S) shall mean an extension or all extensions of credit under
this Agreement.
(c) AGREEMENT means the Documents, the Application and the Approval
Letter, any concurrent or subsequent extensions, supplements, amendments or
modifications to any of the Documents and the Application.
(d) BANK means and refers to First Republic Bank, a Nevada banking
corporation, with a place of business located at 000 Xxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000.
(e) BANK EXPENSES means all costs and expenses incurred by Bank in
connection with the Agreement or the transactions contemplated thereby,
including, but not limited to, any expenses incurred in any proceedings or case
in the U.S. Bankruptcy Courts in enforcing or defending its rights in its
Collateral, or under the Agreement or under any note or other document executed
in connection with the Agreement.
26
(f) BANKRUPTCY CODE means Bankruptcy Reform Act of 1978 (11USC Section
101-1330) as now or hereafter amended or recodified.
(g) BORROWER OR BORROWERS means the Person or Persons identified in the
Application.
(h) XXXXXXXX'S BOOKS means all of Xxxxxxxx's books and records including,
but not limited to: minute books; ledgers, records indicating, summarizing or
evidencing Xxxxxxxx's assets, liabilities, the Collateral, the Obligations, and
all information relating thereto; records indicating, summarizing or evidencing
Borrower's business operations or financial condition; and all computer
programs, disc or tape files, printouts, runs, and other computer prepared
information and the equipment containing such information.
(i) BUSINESS DAY means any day other than a day on which commercial banks
in California are authorized or required by law to close.
(j) CODE means the Uniform Commercial Code applicable to this transaction,
as presently in effect and any replacements as and when such replacements become
effective.
(k) COLLATERAL means all property more specifically defined elsewhere in
the Documents, if any, of Borrower or Guarantor or any third Person now or
hereafter securing all or any part of the Obligations.
(l) DEFAULT means any event which, with notice or passage of time or both,
would constitute an Event of Default.
(m) GOVERNMENTAL AUTHORITIES means
(i) the United States;
(ii) the state, county, city or other political subdivision in which
any of the Collateral is located;
(iii) all other governmental or quasi-governmental authorities,
boards, bureaus, agencies, commissions, departments, administrative
tribunals, instrumentalities and authorities; and
(iv) all judicial authorities and public utilities having or
exercising jurisdiction over Borrower, any Guarantor or the
Collateral.
27
The term "Governmental Authority" means any one of the Governmental Authorities.
(n) GOVERNMENTAL PERMITS means all permits, approvals, licenses, and
authorizations now or hereafter issued by any Governmental Authorities for or in
connection with the conduct of Borrower's or any Guarantor's business or the
ownership or use by Borrower or any Guarantor of the Collateral or any of either
one's other assets or properties.
(o) GOVERNMENTAL REQUIREMENTS means all existing and future laws,
ordinances, rules, regulations, orders, and requirements of all Governmental
Authorities applicable to Borrower, any Guarantor, the Collateral or any of
Borrower's other assets or properties.
(p) GUARANTIES means, collectively, the Guaranty from any Guarantor
identified in the Application and all other guaranty agreements of any kind, if
any, now or hereafter executed by any Guarantors, and all extensions, renewals,
modifications and replacement of any or all such documents.
(q) GUARANTORS means, collectively,
(i) the Person or Person, if any, now or hereafter guaranteeing
payment of the Loan or payment or performance of the other
Obligations, including the Persons, if any identified as guarantors
in the Application; and
(ii) Person or Persons, if any, now or hereafter entering into any
of the third party pledge agreements.
(r) INSOLVENCY PROCEEDING means any proceeding commenced by or against any
person or entity, including Borrower, under any provision of the federal
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law,
including, but not limited to, assignments for the benefit of creditors, formal
or informal moratoriums, compositions or extensions with some or all creditors.
(s) JUDICIAL OFFICER OR ASSIGNEE means any trustee, receiver, controller,
custodian, assignee for the benefit of creditors or any other person or entity
having powers or duties like or similar to the powers and
28
duties of a trustee, receiver, controller, or assignee for the benefit of
creditors.
(t) OBLIGATIONS means all debts, obligations, and liabilities of Borrower
to the Bank currently existing or hereafter made, incurred or created, whether
voluntary or involuntary, and however arising or evidenced, whether direct or
acquired by Bank by assignment or succession, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, whether
under any of the Agreement, or otherwise, and whether Borrower may be liable
individually or jointly, or whether recovery upon such debt may be or become
barred by any statute of limitations or otherwise unenforceable, including all
attorneys' fees and costs now or hereafter payable by Borrower to Bank under the
Agreement or in connection with the collection and enforcement of such debts,
obligations and liabilities. Notwithstanding anything to the contrary contained
in the Agreement the term "Obligations" shall not include any debts that are or
may hereafter constitute "consumer credit" which is subject to the disclosure
requirements of the federal Truth-In Lending Act (15 U.S.C. Section 1601, et
seq.) or any similar state law in effect from time to time, unless Bank and
Borrower shall otherwise agree in a separate written agreement.
(u) PERMITTED LIENS means any of the following:
(i) liens for taxes, fees, assessments or other governmental
charges/levies, either not delinquent or being contested in good
faith by appropriate proceedings;
(ii) equipment leases or vendor liens for equipment or trade
fixtures, or
(iii) any other liens agreed to in writing by Bank.
(v) PERSON means any natural person or any legal entity, including any
corporation, partnership, joint venture, trust, limited liability company,
unincorporated organization, trustee, or Governmental Authority.
(w) PRIME RATE means a fluctuating rate per annum at all times equal to
the rate Bank of America announces at its main offices in Charlotte, North
29
Carolina to be in effect from time to time as its reference rate.
(x) TAXES shall mean foreign, federal, state and local taxes, assessments,
and governmental charges now or hereafter levied, including all income,
franchise, personal property, real property, excise, withholding, sales and use
taxes.
30
NOTES:
31
