BUSINESS LOAN AGREEMENT
EXHIBIT
10.5
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Principal
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Loan
Date
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Maturity
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Loan
No.
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Call/Coll
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Account
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Officer
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Initials
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$8,000,000.00
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03-18-2008
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03-18-2018
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7004400
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Stock
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References
in the boxes above are for Lender's use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing "***" has been omitted due to text length
limitations.
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Borrower:
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Lender:
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PACIFIC
COAST BANKERS' BANK
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Xxx
Xxxxxxxx Xxxxx, Xxxxx 000
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000
Xxxx Xxxxxx, Xxxxx 000
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||
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Xxx
Xxxxxxxxx, XX 00000
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Xxx
Xxxxxxxxx, XX 00000
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THIS
BUSINESS LOAN AGREEMENT (this "Agreement") dated March 18, 2008, is made and
executed by and between (i) BELVEDERE SOCAL, a California corporation
("Borrower"); and (ii) PACIFIC COAST BANKERS' BANK ("Lender") on the following
terms and conditions. Borrower has received prior commercial loans from Lender
or has applied to Lender for a commercial loan or loans or other financial
accommodations, Including those that may be described herein or described on any
exhibit or schedule attached to this Agreement Borrower understands and agrees
that (A) in granting, renewing, or extending any Loan, Lender is relying upon
Borrower's representations, warranties, and agreements as set forth in this
Agreement; (B) the granting, renewing, or extending of any Loan by Lender at all
times shall be subject to Lender's sole judgment and discretion; and (C) all
Loans shall be and remain subject to the terms and conditions of this
Agreement
TERM. This Agreement shall be
effective as of March 18, 2008, and shall continue in full force and effect
until such time as all Loans have been paid in full, including principal,
interest, costs, expenses, attorneys' fees, and other fees and charges, or until
March 18, 2018, whichever comes first.
CONDITIONS PRECEDENT TO EACH ADVANCE.
Lender's obligation to make the Initial Advance and each subsequent
Advance under this Agreement shall be subject to the fulfillment to Lender's
satisfaction of all of the conditions set forth in this Agreement and In the
Related Documents, including the following:
Loan Documents. Borrower shall
provide to Lender the following documents for the Loan: (1) the Note; (2)
Security Agreements granting to Lender Security Interests in the Collateral; (3)
all documents Lender may require to perfect Lender's Security Interests in the
Collateral; (4) evidence of insurance as required below; and (5) all such other
Related Documents as Lender may require for the Loan; all the foregoing in form
and substance satisfactory to Lender and Lender's counsel.
Borrower's Authorization.
Borrower shall have provided in form and substance satisfactory to Lender
properly certified resolutions, duly authorizing the execution and delivery of
this Agreement, the Note, and the other Related Documents. In addition, Borrower
shall have provided such other resolutions, authorizations, documents and
instruments as Lender or its counsel, may require.
Payment of Fees and Expenses.
Borrower shall have paid to Lender all fees, charges, and other expenses
that are then due and payable as specified in this Agreement or any Related
Document.
Representations and Warranties.
The representations and warranties set forth in this Agreement, in the
Related Documents, and in any document or certificate delivered to Lender under
this Agreement are true and correct at the date of execution of the agreement or
other document or certificate containing such representations and
warranties.
No Event of Default. There
shall not exist at the time of any Advance a condition that would constitute an
Event of Default under this Agreement or under any Related Document, or, with
the giving of notice or the passage of time, would constitute an Event of
Default.
Deliveries. Borrower shall
deliver to Lender all instruments, certificates, powers, and other items of the
Collateral or items related thereto as Lender may require to perfect Lender's
Security Interests in the Collateral.
Specific Deliveries. Without
limiting the generality of the foregoing, Borrower shall deliver to Lender, all
in form and substance satisfactory to Lender and Lender's counsel, the
following:
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(1)
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A
certificate of the secretary of Borrower attesting to the adoption by
Borrower's board of directors of a resolution authorizing Borrower (a) to
obtain from Lender a line of credit in the amount of $8,000,000.00; (b) to
secure such line of credit with a pledge of 100% of the capital stock of
each of the Banks; and (c) to execute, deliver to Lender, and perform
under this Agreement, the Note, and the other Related Documents, and
identifying the officers of Borrower authorized to execute this Agreement,
the Note, and the Related Documents and certifying the incumbency of such
officers;
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(2)
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The
original stock certificates representing 100% of the capital stock of each
of the Banks together with a stock power for each such certificate
executed in blank;
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(3)
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Evidence
that each of the Banks has declared and paid cash
dividends;
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(4)
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A
certificate of the secretary of each of the Banks attesting to the
adoption by such Bank's board of directors of a resolution providing that
dividends will from time to time be declared and paid by such Bank in an
amount necessary to make all payments of interest, principal, and other
amounts due under this Agreement and the Related Documents as the same
become due; and
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(5)
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Evidence
that the DFI has approved the granting Lender by Borrower of 100% of the
capital stock of each of the Banks as part of the
Collateral.
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REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Lender, as of the date of this
Agreement, as of the date of each disbursement of loan proceeds, as of the date
of any renewal, extension, or modification of any Loan, and at all times any
Indebtedness exists:
Organization. Borrower is a
corporation for profit that is, and at all times shall be, duly organized,
validly existing, and in good standing under and by virtue of the laws of the
State of California. Borrower is duly authorized to transact business in all
other states in which Borrower is doing business, having made all necessary
filings and obtained all governmental licenses and approvals for each state in
which Borrower is doing business. Specifically, Borrower is, and at all times
shall be, duly qualified as a foreign corporation in all states in which the
failure to so qualify would have a material adverse effect on its business or
financial condition. Borrower has the full power and authority to own its
properties, including the Banks, and to transact the business in which it is
presently engaged or presently proposes to engage. Borrower maintains it
principal office at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, XX 00000.
Unless Borrower has designated otherwise In writing, such principal office
is
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Loan
No: 7004400
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(Continued)
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Page
2
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the
office at which Borrower keeps its books and records, including its records
concerning the Collateral. Borrower will notify Lender prior to any change in
the location of Borrower's state of organization or any change in Borrower's
name or principal office. Borrower shall do all things necessary to preserve and
to keep in full farce and effect its existence, rights and privileges, and shall
comply with all regulations, rules, ordinances, statutes, orders and decrees of
any governmental or quasi-governmental authority or court applicable to Borrower
and Borrower's business activities.
Assumed Business Names.
Borrower has filed or recorded all documents or filings required by law
relating to all assumed business names used by Borrower. Excluding the name of
Borrower, the following is a complete list of all assumed business names under
which Borrower does business: None.
Authorization. Borrower's
execution, delivery, and performance of this Agreement and all the Related
Documents have been duly authorized by all necessary action by Borrower and do
not conflict with, result in a violation of, or constitute a default under (1)
any provision of (a) Borrower's articles of incorporation or organization, or
bylaws, or (b) any agreement or other instrument binding upon Borrower; or (2)
any law, governmental regulation, court decree, or order applicable to Borrower
or to Borrower's properties or either of the Banks.
Financial Information. Each of
Borrower's and Bank's financial statements supplied to Lender truly and
completely disclosed Borrower's and each Bank's financial condition as of the
date of the statement, and there has been no material adverse change in
Borrower's or either Bank's financial condition subsequent to the date of the
most recent financial statements supplied to Lender. Neither Borrower nor either
Bank has any material contingent obligations except as disclosed in such
financial statements,
Legal Effect, This Agreement
constitutes, and any instrument or agreement Borrower Is required to give under
this Agreement when delivered will constitute legal, valid, and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
Properties, Except as
contemplated by this Agreement or as previously disclosed in Borrower's and each
Bank's financial statements or in writing to Lender and as accepted by Lender,
and except for property tax liens for taxes not presently due and payable,
Borrower and each Bank, respectively, owns and has good title to all of its
respective properties free and dear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's and each Bank's properties are titled in
Borrower's or each Bank's legal name, respectively, and neither Borrower nor
either Bank has used or filed a financing statement under any other name for at
least the last five (5) years.
Litigation and Claims. No
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Borrower or either Bank is pending or
threatened, and no other event has occurred which may materially adversely
affect Borrower's or either Bank's financial condition or properties, other than
litigation, claims, or other events, if any, that have been disclosed to and
acknowledged by Lender in writing at the date of execution of the
Agreement.
Taxes. To the best of
Borrower's knowledge, all of Borrower's and each Bank's (if not filed on a
consolidated basis with Borrower) tax returns and reports that are or were
required to be filed, have been filed, and all taxes, assessments, and other
governmental charges have been paid In full, except those presently being or to
be contested by Borrower or either Bank in good faith in the ordinary course of
business and for which adequate reserves have been provided.
Lien Priority. Unless
otherwise prior to the execution of the Agreement disclosed to Lender in
writing, Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting any
of the Collateral directly or indirectly securing repayment of Borrower's Loan
and Note, that would be prior or that may in any way be superior to Lender's
Security Interests and rights In and to such Collateral prior to the execution
of the Agreement.
Binding Effect This Agreement,
the Note, all Security Agreements (if any), and all other Related Documents are
binding upon the signers thereof, as well as upon their successors,
representatives and assigns and are legally enforceable In accordance with their
respective terms.
Banks Matters. As of the date
hereof, (1) the Capital Value of the Banks is not less than $16,000,000.00; (2)
Professional is well capitalized" within the meaning of the Bank Rules; and (3)
Spectrum is "adequately capitalized" within the meaning of the Bank
Rules.
AFFIRMATIVE COVENANTS.
Borrower covenants and agrees with Lender that, so long as this Agreement
remains in effect, Borrower will:
Notices of Claims, Litigation, and
Other Matters. Promptly inform Lender in writing of (1) all material
adverse changes in Borrower's or any Bank's or other subsidiary of Borrower's
financial condition; (2) all existing and all threatened litigation, claims,
investigations, administrative proceedings, or similar actions affecting
Borrower, either Bank, any other subsidiary of Borrower, or any Guarantor that
could materially affect the financial condition of Borrower or the financial
condition of either Bank, any other subsidiary of Borrower, or any Guarantor;
and (3) whether or not the same could have such effect, any formal or informal
action of any Bank Regulator relative to Borrower, either of the Banks, or any
other banking subsidiary of Borrower, including any cease and desist order, or
the entry into any consent, supervisory, or management decree or agreement or
similar arrangement by Borrower, either of the Banks, or any other banking
subsidiary of Borrower.
Financial Records. Maintain
its books and records in accordance with GAAP, applied on a consistent basis,
and permit Lender to examine and audit Borrower's and each Bank's books and
records at all reasonable times.
Financial Statements and Reports.
Furnish Lender with such financial statements and other related
information concerning Borrower and each Bank at such frequencies and in such
detail as Lender may reasonably request. Without limiting the generality of the
foregoing, Borrower shall furnish Lender with (1) its annual financial report
within ninety (90) days of each fiscal year end and quarterly financial reports
within thirty (30) days of the end of each Fiscal Quarter; and (2) a detailed
status report of any past due and non-accrual loans and other real estate owned,
and a copy of its FASB 114 Report of impaired loans within thirty (30) days of
the end of each Fiscal Quarter for each Bank and any other banking subsidiary of
Borrower upon request of Lender.
Additional Information.
Furnish such additional information and statements concerning Borrower
and each Bank, as Lender may request from time to time.
Insurance. Maintain in full
force and effect such Insurance policies with reputable companies as are
consistent with sound banking practices during the term of this Agreement, and
shall provide copies of all binders or other evidence of such insurance to
Lender upon request.
Other Agreements. Comply with
all terms and conditions of all other agreements, whether now or hereafter
existing, between Borrower and any other party and notify Lender immediately in
writing of any default in connection with any other such
agreements.
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Loan
No: 7004400
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(Continued)
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Page
3
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Loan
Proceeds. Use all Loan proceeds solely to provide capital contributions
to each of the Banks, unless specifically consented to the contrary by Lender in
writing.
Taxes,
Charges and Lions. Pay and discharge when due all of its indebtedness and
obligations, including all assessments, taxes, governmental charges, levies, and
liens, of every kind and nature, imposed upon Borrower or its properties,
income, or profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a
lien or charge upon any of Borrower's properties, Income, or
profits.
Performance.
Perform and comply, in a timely manner, with all terms, conditions, and
provisions set forth in this Agreement, in the Related Documents, and in all
other instruments and agreements between Borrower and Lender. Borrower shall
notify Lender immediately In writing of any default in connection with any
agreement
Operations.
Maintain executive and management personnel of both itself and each of
the Banks with substantially the same qualifications and experience as the
present executive and management personnel thereof; provide written notice to
Lender of any change in any such executive and management personnel; and conduct
its and the Bank's business affairs in a reasonable and prudent
manner.
Compliance
with Governmental Requirements. Comply, and cause each Bank to comply,
with all laws, ordinances, and regulations, now or hereafter in effect, of all
Bank Regulators and all other governmental authorities applicable to the conduct
of Borrower's or either Bank's properties, businesses, and operations, and to
the use or occupancy of the Collateral, including without limitation, the
Americans With Disabilities Act. Borrower may contest in good faith any such
law, ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Borrower has notified Lender in
writing prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Collateral are not jeopardized. Lender may require Borrower to
post adequate security or a surety bond, reasonably satisfactory to Lender, to
protect Lender's interest.
Inspection.
Permit employees or agents of Lender at any reasonable time to inspect
any and all Collateral for the Loan or Loans and Borrower's other properties and
to examine or audit Borrower's and each Bank's books, accounts, and records and
to make copies and memoranda of Borrower's and each Bank's books, accounts, and
records, If Borrower now or at any time hereafter maintains any records
(including computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower and
each Bank, upon request of Lender, shall notify such party to permit Lender free
access to such records at all reasonable times and to provide Lender with copies
of any records it may request, all at Borrower's expense.
Compliance
Certificates. Unless waived In writing by Lender, provide Lender at least
annually, with a certificate executed by Borrower's chief financial officer, or
other officer or person acceptable to Lender, certifying that the
representations and warranties set forth in this Agreement are true and correct
as of the date of the certificate and further certifying that, as of the date of
the certificate, no Event of Default exists under this Agreement or, with the
passage of time or the giving of notice, would exist.
Additional
Assurances. Make, execute, and deliver to Lender such promissory notes,
mortgages, deeds of trust, security agreements, assignments, financing
statements, instruments, documents, and other agreements as Lender or its
attorneys may reasonably request to evidence and secure the Loans and to perfect
all Security Interests.
Loan to
Value Ratio. Maintain at all times a ratio of the Loan to the Capital
Value of the Banks of not greater than 50%.
Debt
Service Coverage Ratio. Cause the Banks, in the aggregate, to maintain,
on a quarterly basis as of the end of each Fiscal Quarter, Net Income after
Taxes for such Fiscal Quarter of not less than 1.50 times the amount of
principal and interest that was due and payable during such Fiscal
Quarter.
Bank
Capitalization. Cause Professional to be "well capitalized" within the
meaning of the Bank Rules; and, until the merger of Spectrum with and into
Profession, cause Spectrum to be "adequately capitalized" within the meaning of
the Bank Rules.
Risk
Based Capital. Cause the Banks, in the aggregate, to maintain, on a
quarterly basis as of the end of each Fiscal Quarter, Risk Based Capital for
such Fiscal Quarter of not less than (1) from December 31, 2008, through
December 30, 2009, $40,000,400.00; and (2) thereafter,
$42,000,000.00.
LENDER'S
EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
Borrower's failure to discharge or pay when due any amounts Borrower is required
to discharge or pay under this Agreement or any Related Documents, Lender on
Borrower's behalf may (but
shall not be obligated to) take any action that Lender deems appropriate,
including discharging or paying all taxes, liens, security interests,
encumbrances and other claims, at any time levied or placed on any Collateral
and paying all costs for insuring, maintaining, and preserving any Collateral.
All such expenditures incurred or paid by Lender for such purposes will then
bear interest at the rate charged under the Note from the date incurred or paid
by Lender to the date of repayment by Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment that will be due and payable at the Note's
maturity.
NEGATIVE
COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
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(1)
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Sell,
transfer, mortgage, assign, pledge, grant a security interest in, allow
any cloud on title with respect to, or otherwise encumber, alienate or
allow the alienation of any of Borrower's interest in any of its bank
subsidiaries (including the Banks), including any stock issued by, or
other equity interests in, any such bank subsidiary; provided, however,
that, nothing in the foregoing to the contrary withstanding, so long as no
Event of Default exists and is continuing, or, with the passage of time or
the giving of notice, would exist, Borrower may merge Spectrum with and
into Professional so long as the only consideration paid to Borrower on
account of the capital stock of Spectrum is capital stock of Professional
and the original certificates evidencing 100% such stock of Professional
issued in exchange for such stock of Spectrum are delivered directly to
Lender or a agent of Lender together with a stock power for each such
certificate executed in blank.
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(2)
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Issue
trust preferred securities, debt securities, or commercial paper, or
otherwise incur indebtedness for borrowed money, or otherwise incur any
other payment obligation, that is in any way senior to the Indebtedness;
provided, however, that, nothing in the foregoing to the contrary
withstanding, so long as no Event of Default exists and Is continuing, or,
with the passage of time or the giving of notice, would exist, Borrower
may issue trust preferred securities in connection with, and which results
in, a
repayment of all Loans.
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Loan
No: 7004400
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(Continued)
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Page
4
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(3)
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Permit
either Bank to Issue trust preferred securities, debt securities, or
commercial paper.
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(4)
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Cease
operations, liquidate, or dissolve.
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(5)
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Permit
either Bank to cease operations, liquidate, or dissolve, other than a
merger of Spectrum with and into Professional complying with the proviso
set forth in subparagraph (1) of this "Negative Covenants"
section.
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(6)
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Incur
any obligation as surety or guarantor other than In the ordinary course of
business.
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(7)
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Enter
into any agreement containing any provisions that would be violated or
breached by the performance of Borrower's obligations under this Agreement
or in connection herewith.
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CESSATION OF ADVANCES, If
Lender has made any commitment to make any Loan to Borrower, whether under this
Agreement or under any other agreement, Lender shall have no obligation to make
Advances or to disburse Loan proceeds if (A) Borrower or any Guarantor is in
default under the terms of this Agreement or any of the Related Documents or any
other agreement that Borrower or any Guarantor has with Lender, or, with the
passage of time or the giving of notice, would be in such default; (B) Borrower,
either Bank, any other subsidiary of Borrower, or any Guarantor becomes
insolvent, files a petition In bankruptcy or similar proceedings, is adjudged a
bankrupt, has a receiver or supervisor appointed for or over it by any court or
Bank Regulator, has any cease and desist order entered against it, or enters
into any consent, supervisory, or management decree or agreement or similar
arrangement with any Bank Regulator; (C) there occurs a material adverse change
In Borrower's financial condition or in the financial condition of either Bank,
any other subsidiary of Borrower, or any Guarantor, or in the value of any
Collateral securing any Loan; or (D) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantor's guaranty of the Loan or any
other loan with Lender.
RIGHT OF SETOFF. To the extent
permitted by applicable law, Lender reserves a right of setoff in all Borrower's
accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts
Borrower may open in the future. However, this does not include any XXX or Xxxxx
accounts, or any trust accounts for which setoff would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on the Indebtedness against any and all such
accounts.
DEFAULT. Each of the following
shall constitute an event of default (an "Event of Default") under this
Agreement:
Payment Default. Borrower
fails to make any payment when due under the Note or otherwise under or in
respect of the Loan.
Other Defaults. Borrower fails
to comply with or to perform any other term, obligation, covenant, or condition
contained in this Agreement, the Note, or in any of the other Related Documents
or to comply with or to perform any term, obligation, covenant, or condition
contained in any other agreement between Lender and Borrower.
Default in Favor of Third Parties.
Should Borrower, either Bank, or any other subsidiary of Borrower default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement in favor of any other creditor or person that
may materially affect any of Borrower's, either Bank's, or any such subsidiary's
property or Borrower's ability to repay the Indebtedness or perform its
respective obligations under this Agreement, the Note, or any of the other
Related Documents.
False Statements. Any
warranty, representation, or statement made or furnished to Lender by Borrower
or on Borrower's behalf under this Agreement or the Related Documents is false
or misleading in any material respect, either now or at the time made or
furnished or becomes false or misleading at any lime thereafter.
Insolvency. The dissolution or
termination of Borrower's, either Bank's, or any other subsidiary of Borrower's
existence as a going business (except with respect to a merger of Spectrum with
and into Professional complying with the proviso set forth in subparagraph (1)
of the "Negative Covenants" section above), the insolvency of Borrower, either
Bank, or any other subsidiary of Borrower, the appointment of a receiver or
supervisor of or for Borrower, either Bank, any other subsidiary of Borrower, or
any part of Borrower's, either Bank's, or any other such subsidiary's property
by any court or Bank Regulator, any assignment for the benefit of creditors, any
type of creditor workout, or the commencement of any proceeding under any
bankruptcy, insolvency, or financial institution regulatory or supervisory laws
by or against Borrower, either Bank, or any other such subsidiary.
Defective Collateralization.
This Agreement or any of the Related Documents ceases to be in full force
and effect (including failure of any collateral document to create a valid and
perfected security interest or lien) at any time and for any
reason.
Creditor or Forfeiture Proceedings.
Commencement of foreclosure or forfeiture proceedings, whether by
judicial proceeding, self-help, repossession or any other method, by any
creditor of Borrower or by any governmental agency against any Collateral. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if there
is a good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture proceeding
and deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
Events Affecting Guarantor.
Any of the preceding events occurs with respect to any Guarantor of any
of the Indebtedness or any Guarantor dies or becomes incompetent, or revokes or
disputes the validity of, or liability under, any Guaranty of the Indebtedness.
In the event of a death, Lender, at its option, may, but shall not be required
to, permit the Guarantor's estate to assume unconditionally the obligations
arising under the guaranty in a manner satisfactory to Lender, and, in doing so,
cure any Event of Default.
Change In Ownership. Upon a
change of control of Borrower (defined as a change of ownership, in the
aggregate, of 51% or more), the Loan shall become immediately due and
payable.
Adverse Change. A material
adverse change occurs in Borrower's, either Bank's, or any other subsidiary of
Borrower's financial condition.
Insecurity. Lender in good
faith believes itself insecure.
Right to Cure. If any default,
other than a default on indebtedness, is curable and if Borrower or Grantor, as
the case may be, has not been given a notice of a similar default within the
preceding twelve (12) months, such default may be cured if Borrower or Grantor,
as the case may be, after receiving written notice from Lender demanding cure of
such default (1) cures such default within thirty (30) days; or (2) if the cure
of such default requires more than thirty (30) days, immediately initiates steps
that Lender deems in Lender's sole discretion to be sufficient to cure such
default
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Loan
No: 7004400
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(Continued)
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Page
5
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and
thereafter diligently continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
EFFECT
OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Advances or Loan disbursements), and, at Lenders option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy that not exclude pursuit
of any other remedy,
and an election to make expenditures or to take action to perform an
obligation of Borrower or of any Grantor shall not affect Lender's right to
declare a default and to exercise its rights and remedies.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part of this
Agreement:
Amendments.
This Agreement, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in
this Agreement. No alteration of or amendment to this Agreement, the Note, or
any other Related Document shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration or
amendment.
Arbitration.
Borrower and Lender agree that all disputes, claims and controversies between
them whether individual, joint, or class in nature, arising from this Agreement,
the Note, the other Related Documents, or otherwise, including contract and tort
disputes, shall be arbitrated pursuant to the Rules of the American Arbitration
Association in effect at the time the claim is filed, upon request of either
party. No act to take or dispose of any Collateral shall constitute a waiver of
this arbitration agreement or be prohibited by this arbitration agreement This
includes obtaining injunctive relief or a temporary restraining order, invoking
a power of sale under any deed of trust or mortgage; obtaining a writ of
attachment or imposition of a receiver; or exercising any rights relating to
personal property, Including taking or disposing of such property with or
without judicial process pursuant to Article (or Division) 9 of the Uniform
Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any Collateral, including any claim to rescind, reform, or otherwise modify any
agreement relating to the Collateral, shall also be arbitrated, provided however
that no arbitrator shall have the right or the power to enjoin or restrain any
act of any party. Borrower and Lender agree that in the event of an action for
judicial fore-closure pursuant to California Code of Civil Procedure Section
726, or any similar provision in any other state, the commencement of such an
action will not constitute a waiver of the right to arbitrate and the
court shall refer to arbitration as much of such action, including
counterclaims, as lawfully may be referred to arbitration. Judgment upon arty
award rendered by any arbitrator may be entered in any court having
Jurisdiction. Nothing in this Agreement shall preclude any party from seeking
equitable relief from a court of competent jurisdiction. The statute of
limitations, estoppel, waiver, !aches, and similar doctrines which would
otherwise be applicable in art action brought by a party shall be applicable In
any arbitration proceeding, and the commencement of an arbitration proceeding
shall be deemed the commencement of an action for these purposes. The Federal
Arbitration Act shall apply to the construction, interpretation, and enforcement
of this arbitration provision.
Attorneys'
Fees and Lender's Expenses. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Agreement,
the Note, and any other Related Documents. Lender may hire or pay someone else
to help enforce this Agreement, the Note, and any other Related Documents, and
Borrower shall pay the costs and expenses of such enforcement. Costs and
expenses include Lender's attorneys' fees and legal expenses whether or not
there is a lawsuit, including attorneys' fees and legal expenses for
arbitration, bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
arbitration collection services. Borrower also shall pay all court costs and
such additional fees as may be directed by the court.
Caption
Headings. Caption headings in this Agreement, the Note, and any other
Related Documents are for convenience purposes only and are not to be used to
interpret or define the provisions hereof or thereof,
Consent
to Loan Participation and Syndication. Borrower agrees and consents to
Lender's sale or transfer, whether now or later, of one or more participation
interests in or syndications of the Loan to one or more purchasers, whether
related or unrelated to Lender. Lender may provide, without any limitation
whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower, the Banks, and any
other subsidiary of Borrower, or about any other matter relating to the Loan,
and Borrower hereby waives any rights to privacy Borrower may have with respect
to such matters. Borrower additionally waives any and all notices of sale of
participation interests or syndications, as well as all notices of any
repurchase of any such participation interests or syndications. Borrower also
agrees that the purchasers of any such participation interests or syndications
will be considered as the absolute owners of such interests in the Loan and will
have all the rights granted under the participation or syndication agreement or
agreements governing the sale of such participation interests or syndications.
Borrower further waives all rights of offset or counterclaim that it may have
now or later against Lender or against any purchaser of such a participation
interest or syndication and unconditionally agrees that either Lender or such
purchaser may enforce Borrower's obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. Borrower
further agrees that the purchaser of any such participation interests or
syndication may enforce its Interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
Governing
Law. This Agreement, the Note, and the other Related Documents will be
governed by federal law applicable to Lender and, to the extent not preempted by
federal law, the laws of the State of California without regard to its conflicts
of law provisions. This Agreement has been accepted by Lender In the State of
California.
Choice
of Venue. If there is a lawsuit arising out or of related to this
Agreement, the Note, the other Related Documents, the Loan, or the Collateral,
Borrower agrees upon Lender's request to submit to the jurisdiction of the
courts of San Francisco County, State of California.
No
Waiver by Lender. Lender shall not be deemed to have waived any rights
under this Agreement, the Note, or any other Related Document unless such waiver
is given in writing and signed by Lender. No delay or omission on the part of
Lender in exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement, the Note, or
any other Related Document shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any
other provision hereof or thereof. No prior waiver by Lender, nor any course of
dealing between Lender and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any of Lender's rights or of any of Borrower's or any
Grantor's obligations as to any future transactions. Whenever the consent of
Lender is
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required
under this Agreement, the Note, or any other Related Document, the granting of
such consent by Lender in any instance shall not constitute continuing consent
to subsequent instances where such consent Is required and in all cases such
consent may be granted or withheld in the sole discretion of
Lender.
Notices, Any notice required
to be given under this Agreement, the Note, or any other Related Document shall
be given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed, when
deposited in the United States mail, as first class, certified or registered
mail postage prepaid, directed to the addresses shown near the beginning of this Agreement.
Any party may change Its address for notices under this Agreement, the Note, and
any other Related Document by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. For
notice purposes, Borrower agrees to keep Lender informed at all times of
Borrower's current address. Unless otherwise provided or required by law, if
there is more than one Borrower, any notice given by Lender to any Borrower is
deemed to be notice given to all Borrowers.
Severability. If a court of
competent jurisdiction finds any provision of this Agreement, the Note, or any
other Related Document to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. if feasible, the
offending provision shall be considered modified so that it becomes legal,
valid, and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement, the Note, or the other Related
Document, as the case may be. Unless otherwise required by law, the Illegality,
invalidity, or unenforceability of any provision of this Agreement, the Note, or
any other Related Document shall not affect the legality, validity, or
enforceability of any other provision hereof or thereof.
Subsidiaries and Affiliates of
Borrower. To the extent the context of any provisions of this Agreement,
the Note, or any other Related Document makes it appropriate, including any
representation, warranty, or covenant, the word "Borrower" as used herein or
therein shall include all of Borrower's subsidiaries and affiliates.
Notwithstanding the foregoing however, under no circumstances shall this
Agreement, the Note, or any other Related Document be construed to require
Lender to make any Loan or other financial accommodation to any of Borrower's
subsidiaries or affiliates.
Successors and Assigns. All
covenants and agreements by or on behalf of Borrower contained in this
Agreement, the Note, or any other Related Document shall bind Borrower's
successors and assigns and shall inure to the benefit of Lender and its
successors and assigns. Borrower shall not, however, have the right to assign
Borrower's rights under this Agreement, the Note, or any other Related Document
or any interest herein or therein, without the prior written consent of
Lender.
Survival of Representations and
Warranties. Borrower understands and agrees that in making the Loan,
Lender is relying on all representations, warranties, and covenants made by
Borrower in this Agreement or in any certificate or other instrument delivered
by Borrower to Lender under this Agreement or the Related Documents. Borrower
further agrees that regardless of any investigation made by Lender, all such
representations, warranties and covenants will survive the making of the Loan
and delivery to Lender of the Related Documents, shall be continuing in nature,
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full, or until this Agreement shall be terminated
in the manner provided above, whichever is the last to occur.
Time Is of the Essence. Time
is of the essence in the performance of this Agreement, the Note, and every
other Related Document.
DEFINITIONS. The following
capitalized words and terms shall have the following meanings when used in this
Agreement. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America.
Words and terms used in the singular shall include the plural, and the plural
shall include the singular, as the context may require. Including" and the like
are not limiting; and "or" is not exclusive. Words and terms not otherwise
defined in this Agreement shall have the meanings attributed to such terms in
the Uniform Commercial Code. Accounting words and terms not otherwise defined in
this Agreement shall have the meanings assigned to them in accordance with GAAP
as in effect on the date of this Agreement:
Advance. The word 'Advance"
means a disbursement of Loan funds made, or to be made, to Borrower or on
Borrower's behalf on a line of credit Of multiple advance basis under
the terms and conditions of this Agreement.
Agreement The word 'Agreement'
means this Business Loan Agreement, as this Business Loan Agreement may be
amended or modified from time to time, together with all exhibits and schedules
attached to this Business Loan Agreement from time to lime.
Bank Regulator. The words
"Bank Regulator" mean the FRB, the FDIC, the DFI, or any other governmental or
quasi-governmental authority having regulatory or supervisory authority over
banks or bank holding companies.
Bank Rules. The words "Bank
Rules" mean the Rules and Regulations of the Federal Financial Institutions
Examination Council.
Banks. The word "Banks" means
(i) until Spectrum has been merged with and into Professional, Spectrum and
Professional; and (ii) thereafter, Professional. For the avoidance of doubt,
after such merger, references herein to “each of the Banks", "each Bank", and
the like shall be deemed to mean Professional alone.
Borrower. The word "Borrower"
means BELVEDERE SOCAL, a California corporation, and includes all co-signers and
co-makers signing the Note and all their respective successors and
assigns.
Call Report. The words "Call
Report" mean a quarterly Report of Condition and Income filed by a Bank with the
FDIC.
Capital Value. The words
°Capital Value" mean, as to each Bank, as of the end of each Fiscal Quarter,
such Bank's “Tier-1 Capital" as reflected in its Call Report for such Fiscal
quarter in accordance with the Bank Rules and any other applicable rules and
regulations of the FRB.
Collateral. The word
"Collateral" means all property and assets granted as collateral security for a
Loan, whether real or personal property, whether granted directly or indirectly,
whether granted now or in the future, and whether granted in the form of a
security interest, mortgage, collateral mortgage, deed of trust, assignment,
pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever, whether
created by law, contract, or otherwise.
DFI. The initials "DFI" mean
the California Department of Financial Institutions.
Event of Default. The words
"Event of Default" mean any of the events of default set forth in the "Default"
section above.
BUSINESS
LOAN AGREEMENT
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FDIC.
The initials 'FDIC" mean the Federal Deposit Insurance
Corporation.
FRB.
The initials "FRB" mean the Board of Governors of the Federal Reserve
System.
Fiscal
Quarter. The words 'Fiscal Quarter' mean a quarterly accounting period
ending March 31, June 30, September 30, or December 31 of a calendar
year,
GAAP.
The initials "GAAP" mean generally accepted accounting
principles.
Grantor.
The word "Grantor" means each and all of the persons or entities granting
a Security interest in any Collateral for the Loan, including all Borrowers
granting such a Security Interest.
Guarantor.
The word "Guarantor" means any guarantor, surety, or accommodation party
of any or all of the Loan.
Guaranty.
The word "Guaranty" means the guaranty from Guarantor to Lender,
Including without limitation a guaranty of all or part of the Note.
Hazardous
Substances. The words 'Hazardous Substances" mean materials that, because
of their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health
or the environment when improperly used, treated, stored, disposed of,
generated, manufactured, transported or otherwise handled. The words 'Hazardous
Substances" are used in their very broadest sense and include without limitation
any and all hazardous or toxic substances, materials or waste as defined by or
listed under the Environmental Laws. The term "Hazardous Substances" also
Includes, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos.
Indebtedness.
The word "Indebtedness" means the indebtedness evidenced by the Note or
the other Related Documents, including all principal and interest together with
all other indebtedness and costs and expenses for which Borrower is responsible
under this Agreement or under any of the Related Documents.
Lender.
The word "Lender" means PACIFIC COAST BANKERS' BANK, its successors and
assigns.
Loan.
The word 'Loan" means any and all loans and financial accommodations from
Lender to Borrower whether now or hereafter existing, and however evidenced,
including those loans and financial accommodations described herein or described
on any exhibit or schedule attached to this Agreement from time to
time.
Net
Income after Taxes. The words "Net Income after Taxes" mean, as to each
Bank, as of the end of each Fiscal Quarter, such Bank's "Net income after Taxes"
as reflected in its Call Report for such Fiscal Quarter in accordance with the
Bank Rules and any other applicable rules and regulations of the
FRB.
Note.
The word 'Note means the Note executed by Borrower in the principal
amount of $8,000,000.00 dated March 18, 2008, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of, and
substitutions for such note.
Permitted
Liens. The words "Permitted Liens' mean (1) liens and security interests
securing Indebtedness owed by Borrower to Lender; (2) liens for taxes,
assessments, or similar charges either not yet due or being contested in good
faith; (3) liens of materialmen, mechanics, warehousemen, or carriers, or other
like liens arising in the ordinary course of business and securing obligations
which are not yet delinquent; (4)
purchase money liens or purchase money security Interests upon or in any
property acquired or held by Borrower in the ordinary course of business to
secure indebtedness outstanding on the date of this Agreement or permitted to be
incurred under the paragraph of this Agreement titled "Indebtedness and Liens';
(5) liens and security interests which, as of the date of this Agreement, have
been disclosed to and approved by the Lender in writing; and (6) those liens and
security interests which in the aggregate constitute an immaterial and
Insignificant monetary amount with respect to the net value of Borrower's
assets.
Professional.
The word "Professional means Professional Business Bank, a California
banking corporation.
Related
Documents. The words 'Related Documents' mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Loan.
Risk
Based Capital. The words "Risk Based Capital" mean, as to each Bank, as
of the end of each Fiscal Quarter, such Bank's `Risk-Based Capital" as reflected
in its Call Report for such Fiscal Quarter in
accordance with the Bank Rules and any other applicable rules and
regulations of the FRB.
Security
Agreement The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements, understandings or
other agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security interest.
Security
Interest The words "Security Interest" mean, without limitation, any and
all types of collateral security, present and future, whether in the form of a
lien, charge, encumbrance, mortgage, deed of trust, security deed, assignment,
pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or
title retention contract, lease or consignment intended as a security device, or
any other security or lien Interest whatsoever whether created by law, contract,
or otherwise.
Spectrum.
The word 'Spectrum" means Spectrum Bank, a California banking
corporation.
[Signatures
on Following Page]
BUSINESS
LOAN AGREEMENT
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BORROWER
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND
BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED MARCH 18,
2008.
BORROWER:
California
corporation
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By:
/s/ Xxxxxxx
Xxxxxxxxx
|
By:
/s/ Xxxxxxx XxXxxx
|
|
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Xxxxxxx
Xxxxxxxxx, Chief Executive Officer
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Xxxxxxx
XxXxxx, Chief Financial Officer
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LENDER:
PACIFIC
COAST BANKERS' BANK
By:
____________________________________
Authorized
Signer
