[LOGO OF SEAFIRST BANK APPEARS HERE]
BUSINESS LOAN AGREEMENT
This Business Loan Agreement ("Agreement") is made between Bank of America NT&SA
doing business as Seafirst Bank ("Bank") and USANA, Inc. ("Borrower") with
respect to the following:
Part A
1. LINE OF CREDIT #1. Subject to the terms of this Agreement, Bank will make
loans to Borrower under a (X) revolving ( ) non-revolving line of credit as
follows:
(a) Total Amount Available: $5,000,000
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( ) Subject to the provisions of any accounts receivable and/or
inventory borrowing plan required herein; it is expressly
understood that collateral ineligible for borrowing purposes
is determined solely by Bank.
( ) Subject to (describe): N/A
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(b) Availability period: May 31, 1998 through May 31, 1999. However,
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if loans are made an/or new promissory notes executed after the last
date, such advances will be subject to the terms of this Agreement
until repaid in full unless a written statement signed by the Bank
and Borrower provides otherwise, or a replacement loan agreement is
executed. The making of such additional advances alone, however,
does not constitute a commitment by the Bank to make any further
advances or extend the availability period.
(c) Interest Rate:
(X) Bank's publicly announced Reference Rate plus 0 percent of the
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principal per annum. "Reference Rate" means the rate of
interest publicly announced from time to time by Bank in
San Francisco, California as its "Reference Rate". The
Reference Rate is set based on various factors including
Bank's cost and desired return, general economic conditions,
and other factors, and is used as a reference point for pricing
some loans. Bank may price loans to its customers at, above,
or below the Reference Rate. Any change in the Reference Rate
shall take effect at the opening of business on the day
specified in the public announcement of a change in the
Reference Rate.
(X) At the option of Borrower, loans within the approved commitment
may be available, in minimum amount of $250,000 or more for
specific periods of time ranging from 30 days to 180 days, at
LIBOR + 2.25%, per annum. Any LIBOR borrowings shall be
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requested at least two business days prior to funding. LIBOR
borrowings shall be based on the British Bankers' Association
Interest Settlement Rate (BBAIRS), page 3750 on Telerate. The
LIBOR rate shall be adjusted for reserves, deposit insurance,
assessments and/or taxes. Borrowing periods for the LIBOR rate
option may be for 30, 60, 90 or 180 days. Under the LIBOR rate
option, any advance which is prepaid prior to maturity may be
subject to a prepayment penalty.
(d) Interest Rate Basis: All interest will be calculated at the per
annum interest rate based on a 360-day year and applied to the actual number of
days elapsed.
(e) Repayment: At the times and in amounts as set forth in note(s)
required under Part B Article 1 of this Agreement.
(f) Loan Fee: N/A payable on N/A.
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(g) Fee on Unutilized Portion of Line: On 8/31/98, and Quarterly
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thereafter, Borrower shall pay a fee based upon the average daily
unused portion of the line of credit. This fee will be calculated
as follows: One-fourth of one percent (0.25%) per annum.
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(h) Other Fee(s) (Identify): N/A
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(i) Collateral. This line of credit shall be secured by a security
interest, which is hereby granted, in favor of Bank on the
following collateral: Accounts Receivable, Inventory, and
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Equipment. Also, collateral securing other loans with Bank may
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secure this loan.
[LOGO OF SEAFIRST BANK APPEARS HERE]
BUSINESS LOAN AGREEMENT
Part B
1. Promissory Note(s). All loans shall be evidenced by promissory notes in a
form and substance satisfactory to Bank.
2. Conditions to Availability of Loan/Line of Credit. Before Bank is obligated
to disburse/make any advance, or at any time thereafter which Bank deems
necessary and appropriate, Bank must receive all of the following, each of
which must be in form and substance satisfactory to Bank ("loan documents"):
2.1 Original, executed promissory note(s);
2.2 Original executed security agreement(s) and/or deed(s) of trust
covering the collateral described in Part A;
2.3 All collateral described in Part A in which Bank wishes to have
possessory security interest;
2.4 Financing statement(s) executed by Borrower;
2.5 Such evidence that Bank may deem appropriate that the security
interests and liens in favor of Bank are valid, enforceable, and prior
to the rights and interest of others except those consented to in
writing by Bank;
+2.6 The following guaranty(ies) in favor of the Bank: N/A
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+2.7 Subordination agreement(s) in favor of Bank executed by: N/A
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2.8 Evidence that the execution, delivery, and performance by Borrower of
this Agreement and the execution, delivery, and performance by Borrower
and any corporate guarantor or corporate subordinating creditor of any
instrument or agreement required under this Agreement, as appropriate,
have been duly authorized;
2.9 Any other document which is deemed by the Bank to be required from time
to time to evidence loans or to effect the provisions of this
Agreement;
2.10 If requested by Bank, a written legal opinion expressed to Bank, of
counsel for Borrower as to the matters set forth in sections 3.1 and
3.2, and to the best of such counsel's knowledge after reasonable
investigation, the matters set forth in sections 3.3, 3.5, 3.6, 3.7,
3.9 and such other matters as the Bank may reasonably request;
2.11 Pay or reimburse Bank for any out-of-pocket expenses expended in making
or administering the loans made hereunder including without limitation
attorney's fees (including allocated costs of in-house counsel); and
+2.12 Other (describe): N/A
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3. Representations and Warranties. Borrower represents and warrants to Bank,
except as Borrower has disclosed to Bank in writing, as of the date of this
Agreement and hereafter so long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding under
this Agreement and promissory notes that:
+3.1 Borrower is duly organized and existing under the laws of the state
of its organization as a:
General Limited Sole
X Corporation Partnership Partnership Proprietorship dba
- -- -- -- ----
LLC with Duration of
-- -----------------
Borrower is properly licensed and in good standing in each state in
which Borrower is doing business and Borrower has qualified under,
and complied with, where required, the fictitious or trade name
statutes of each state in which Borrower is doing business, and
Borrower has obtained all necessary government approvals for its
business activities; the execution, delivery, and performance of this
Agreement and such notes and other instruments required herein are
within Borrower's powers, have been duly authorized, and, as to
Borrower and any guarantor, are not in conflict with the terms of any
charter, bylaw, or other organization papers of Borrower, and this
Agreement, such notes and the loan documents are valid and
enforceable according to their terms;
3.2 The execution, delivery, and performance of this Agreement, the loan
documents and any other instruments are not in conflict with any law
or any indenture, agreement or undertaking to which Borrower is a
party or by which Borrower is bound or affected;
3.3 Borrower has title to each of the properties and assets as reflected
in its financial statements (except such assets which have been sold
or otherwise disposed of in the ordinary course of business), and no
assets or revenues of the Borrower are subject to any lien except as
required or permitted by this Agreement, disclosed in its financial
statements or otherwise previously disclosed to Bank in writing;
3.4 All financial information, statements as to ownership of Borrower and
all other statements submitted by Borrower to Bank, whether
previously or in the future, are and will be true and correct in all
material respects upon submission and are and will be complete upon
submission insofar as may be necessary to give Bank a true and
accurate knowledge of the subject matter thereof;
3.5 Borrower has filed all tax returns and reports as required by law to
be filed and has paid all taxes and assessments applicable to
Borrower or to is properties which are presently due and payable,
except those being contested in good faith;
3.6 There are no proceedings, litigation or claims (including unpaid
taxes) against Borrower pending or, to the knowledge of the Borrower,
threatened, before any court or government agency, and no other event
has occurred which may have a material adverse effect on Borrower's
financial condition;
3.7 There is no event which is, or with notice or lapse of time, or both,
would be, an Event of Default (as defined in Section 7) under this
Agreement;
+3.8 Year 2000 Compliance: The Borrower has conducted a comprehensive
review and assessment of the Borrower's computer applications and
made inquiry of the Borrower's key suppliers, vendors and customers
with respect to the "year 2000 problem" (that is, the risk that
computer applications may not be able to properly perform
date-sensitive functions after December 31, 1999) and, based on that
review and inquiry, the Borrower does not believe the year 2000
problem will result in a material adverse change in the Borrower's
business condition (financial or otherwise), operations, properties
or prospects, or ability to repay the credit.
2
3.9 Borrower has exercised due diligence in inspecting Borrower's properties
for hazardous wastes and hazardous substances. Except as otherwise
previously disclosed and acknowledged to Bank in writing: (a) during the
period of Borrower's ownership of Borrower's properties, there has been
no use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or hazardous substance by any
person in, on, under or about any of Borrower's properties; (b) Borrower
has no actual or constructive knowledge that there has been any use,
generation, manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or hazardous substance by any
person in, on, under or about any of Borrower's properties by any prior
owner or occupant of any of Borrower's properties; and (c) Borrower has
no actual or constructive notice of any actual or threatened litigation
or claims of any kind by any person relating to such matters. The terms
"hazardous waste(s)," "hazardous substance(s)," "disposal," "release,"
and "threatened release" as used in this Agreement shall have the same
meanings as set forth in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq., the Superfund Amendments and Reauthorization Act of 1986,
as amended, Pub. L. No. 99-499, the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, as amended, 49 U.S.C. Section 6901, et
seq., or other applicable state or federal laws, rules or regulations
adopted pursuant to any of the foregoing; and
+3.10 Each chief place of business of Borrower, and the office or offices where
Borrower keeps its records concerning any of the collateral, is located
at: 0000 X. Xxxxxxx Xxxx., Xxxx Xxxx Xxxx, Xxxx.
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4. Affirmative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding under
this Agreement and promissory note(s) Borrower will:
+4.1 Use the proceeds of the loans covered by this Agreement only in
connection with Borrower's business activities and exclusively for the
following purposes:
+4.2 Maintain current assets in an amount at least equal to 1.25 times current
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liabilities, and not less than N/A. Current assets and current
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liabilities shall be determined in accordance with generally accepted
accounting principles and practices, consistently applied;
+4.3 Maintain a tangible net worth of at least N/A and not permit Borrower's
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total indebtedness which is not subordinated in a manner satisfactory to
Bank to exceed 1.0 times Borrower's tangible net worth. "Tangible net
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worth" means the excess of total assets over total liabilities,
excluding, however, from the determination of total assets (a) all assets
which should be classified as intangible assets such as goodwill,
patents, trademarks, copyrights, franchises, and deferred charges
(including unamortized debt discount and research and development
costs), (b) treasury stock, (c) cash held in a sinking or other similar
fund established for the purpose of redemption or other retirement of
capital stock, (d) to the extent not already deducted from total assets,
reserves for depreciation, depletion, obsolescence or amortization of
properties and other reserves or appropriations of retained earnings
which have been or should be established in connection with the business
conducted by the relevant corporation, and (e) any revaluation or other
write-up in book value of assets subsequent to the fiscal year of such
corporation last ended at the date of this Agreement;
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+4.4 Upon request Borrower agrees to insure and to furnish Bank with evidence
of insurance covering the life of Borrower (if an individual) or the
lives of designated partners or officers of Borrower (if a partnership
or corporation) in the amounts stated below. Borrower shall take such
actions as are reasonably requested by Bank, such as assigning the
insurance policies to Bank or naming Bank as beneficiary and obtaining
the insurer's acknowledgment thereof, to provide that in the event of
the death of any of the named insureds the policy proceeds will be
applied to payment of Borrower's obligations owing to Bank;
Name: N/A
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+4.5 Promptly give written notice to Bank of: (a) all litigation and claims
made or threatened affecting Borrower where the amount is $250,000 or
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more; (b) any substantial dispute which may exist between Borrower and
any governmental regulatory body or law enforcement authority; (c) any
Event of Default under this Agreement or any other agreement with Bank
or any other creditor or any event which become an Event of Default; and
(d) any other matter which has resulted or might result in a material
adverse change in Borrower's financial condition or operations;
+4.6 Borrower shall as soon as available, but in any event within 120 days
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following the end of each Borrower's fiscal years and within 45 days
--
following the end of each quarter provide to Bank, in a form
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satisfactory to Bank (including audited statements if required at any
time by Bank), such financial statements and other information
respecting the financial condition and operations of Borrower as Bank
may reasonably request;
* See 11.4 and 11.5 - Additional Provisions:
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4.7 Borrower will maintain in effect insurance with responsible insurance
companies in such amounts and against such risks as is customarily
maintained by persons engaged in businesses similar to that of Borrower
and all policies covering property given as security for the loans shall
have loss payable clauses in favor of Bank. Borrower agrees to deliver
to Bank such evidence of insurance as Bank may reasonably require and,
within thirty (30) days after notice from Bank, to obtain such
additional insurance with an insurer satisfactory to the Bank;
4.8 Borrower will pay all indebtedness taxes and other obligations for which
the Borrower is liable or to which its income or property is subject
before they shall become delinquent, except any which is being contested
by the Borrower in good faith;
4.9 Borrower will continue to conduct its business as presently constituted,
and will maintain and preserve all rights, privileges and franchises
now enjoyed, conduct Borrower's business in an orderly, efficient and
customary manner, keep all Borrower's properties in good working order
and condition, and from time to time make all needed repairs, renewals
or replacements so that the efficiency of Borrower's properties shall be
fully maintained and preserved;
4.10 Borrower will maintain adequate books, accounts and records and prepare
all financial statements required hereunder in accordance with generally
accepted accounting principles and practices consistently applied, and
in compliance with the regulations of any governmental regulatory body
having jurisdiction over Borrower or Borrower's business;
4.11 Borrower will permit representatives of Bank to examine and make copies
of the books and records of Borrower and to examine the collateral of
the Borrower at reasonable times;
4
4.12 Borrower will perform, on request of Bank, such acts as may be necessary
or advisable to perfect any lien or security interest provided for
herein or otherwise carry out the intent of this Agreement;
4.13 Borrower will comply with all applicable federal, state and municipal
laws, ordinances, rules and regulations relating to its properties,
charters, businesses and operations, including compliance with all
minimum funding and other requirements related to any of Borrower's
employee benefit plans;
4.14 Borrower will permit representatives of Bank to enter onto Borrower's
properties to inspect and test Borrower's properties as Bank, in its
sole discretion, may deem appropriate to determine Borrower's compliance
with section 5.8 of this Agreement; provided however, that any such
inspections and tests shall be for Bank's sole benefit and shall not be
construed to create any responsibility or liability on the part of Bank
to Borrower or to any third party.
5. Negative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding under
this Agreement and promissory note(s):
+5.1 Borrower will not, during any fiscal year, expend or incur in the
aggregate more than N/A for fixed assets, nor more than N/A for any
--- ---
single fixed asset whether or not payable that fiscal year or later
under any purchase agreement or lease;
5.2 Borrower will not, without the prior written consent of Bank, purchase
or lease under an agreement for acquisition, incur any other
indebtedness for borrowed money, mortgage, assign, or otherwise encumber
any of Borrower's assets, nor sell, transfer or otherwise hypothecate
any such assets except in the ordinary course of business. Borrower
shall not guaranty, endorse, co-sign, or otherwise become liable upon
the obligations of others, except by the endorsement of negotiable
instruments for deposit or collection in the ordinary course of
business. For purposes of this paragraph, the sale or assignment of
accounts receivable, or the granting of a security interest therein,
shall be deemed the incurring of indebtedness for borrowed money; See
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11.6 - Additional Provisions;
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+5.3 The total of salaries, withdrawals, or other forms of compensation,
whether paid in cash or otherwise, by Borrower shall not exceed the
following amounts for the persons indicated, nor will amounts in excess
of such limits be paid to any other person:
Name: N/A
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5.4 Borrower will not, without Bank's prior written consent, declare any
dividends on shares of its capital stock, or apply any of its assets to
the purchase, redemption or other retirement of such shares, or
otherwise amend its capital structure;
+5.5 Borrower will not make any loan or advance to any person(s) or purchase
or otherwise acquire the capital stock, assets or obligations of, or any
interest in, any person, except:
(a) commercial bank time deposits maturing within one year,
(b) marketable general obligations of the United States or a State, or
marketable obligations fully guarantied by the United States,
(c) short-term commercial paper with the highest rating of a generally
recognized rating service, and
(d) other investments relating to the Borrower's business which,
together with such other investments now outstanding, do not in the
aggregate exceed the sum of $1,000,000 at any time;
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5.6 Borrower will not liquidate or dissolve or enter into any consolidation,
merger, pool, joint venture, syndicate or other combination, or sell,
lease, or dispose of Borrower's business assets as a whole or such as
in the option of Bank constitute a substantial portion of Borrower's
business or assets;
5
5.7 Borrower will not engage in any business activities or operations
substantially different from or unrelated to present business
activities or operations; and/or
5.8 Borrower, and Borrower's tenants, contractors, agents or other
parties authorized to use any of Borrower's properties, will not
use, generate, manufacture, store, treat, dispose of, or release
any hazardous substance or hazardous waste in, on, under or about
any of Borrower's properties except as previously disclosed to
Bank in writing as provided in section 3.9; and any such activity
shall be conducted in compliance with all applicable federal,
state and local laws, regulations and ordinances, including
without limitation those described in section 3.9.
6. Waiver, Release and Indemnification. Borrower hereby:
(a) releases and waives any claims against Bank for indemnity
or contribution in the event Borrower becomes liable for
cleanup or other costs under any of the applicable federal,
state or local laws, regulations or ordinances, including
without limitation those described in section 3.9, and
(b) agrees to indemnify and hold Bank harmless from and against
any and all claims, losses, liabilities, damages, penalties
and expenses which Bank may directly or indirectly sustain
or suffer resulting from a breach of (i) any of Borrower's
representations and warranties with respect to hazardous
wastes and hazardous substances contained in section 3.9,
or (ii) section 5.8. The provisions of this section 6 shall
survive the full and final payment of all sums outstanding
under this Agreement and promissory notes and shall not be
affected by Bank's acquisition of any interest in any of the
Borrower's properties, whether by foreclosure or otherwise.
7. Events of Default. The occurrence of any of the following events
("Events of Default") shall terminate any and all obligations on
the part of Bank to make or continue the loan and/or line of
credit and, at the option of Bank, shall make all sums of interest
and principal outstanding under the loan and/or line of credit
immediately due and payable, without notice of default,
presentment or demand for payment, protest or notice of non
payment or dishonor, or other notices or demands of any kind or
character, all of which are waived by Borrower, and Bank may
proceed with collection of such obligations and enforcement and
realization upon all security which it may hold and to the
enforcement of all rights hereunder or at law:
7.1 The Borrower shall fail to pay when due any amount payable
by it hereunder on any loans or notes executed in connection
herewith;
7.2 Borrower shall fail to comply with the provisions of any
other covenant, obligation or term of this Agreement for a
period of fifteen (15) days after the earlier of written
notice thereof shall have been given to the Borrower by Bank
or Borrower or any Guarantor has knowledge of an Event of
Default or an event that can become an Event of Default;
7.3 Borrower shall fail to pay when due any other obligation for
borrowed money, or to perform any term or covenant on its
part to be performed under any agreement relating to such
obligation or any such other debt shall be declared to be
due and payable and such failure shall continue after the
applicable grace period;
7.4 Any representation or warranty made by Borrower in this
Agreement or in any other statement to Bank shall prove to
have been false or misleading in any material respect when
made, or Borrower's representations regarding the "year
2,000 problem" shall cease to be true, whether or not true
when made, and as a result Bank reasonably believes that
Borrower's financial condition or its ability to pay its
debts as they come due will thereby be materially impaired;
6
7.5 Borrower makes an assignment for the benefit of creditors, files a
petition in bankruptcy, is adjudicated insolvent or bankrupt,
petitions to any court for a receiver or trustee for Borrower or
any substantial part of its property, commences any proceeding
relating to the arrangement, readjustment, reorganization or
liquidation under any bankruptcy or similar laws, or if there is
commenced against Borrower any such proceedings which remain
undismissed for a period of thirty (30) days or, if Borrower by any
act indicates its consent or acquiescence in any such proceeding or
the appointment of any such trustee or receiver;
7.6 Any judgement attaches against Borrower or any of its properties
for an amount in excess of $500,000 which remains unpaid, unstayed
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on appeal, unbonded, or undismissed for a period of thirty (30)
days;
7.7 Loss of any required government approvals, and/or any governmental
regulatory authority takes or institutes action which, in the
opinion of Bank, will adversely affect Borrower's condition,
operations or ability to repay the loan and/or line of credit;
7.8 Failure of Bank to have a legal, valid and binding first lien on,
or a valid and enforceable prior perfected security interest in,
any property covered by any deed of trust or security agreement
required under this Agreement;
7.9 Borrower dies, becomes incompetent, or ceases to exist as a going
concern;
7.10 Occurrence of an extraordinary situation which gives Bank
reasonable grounds to believe that Borrower may not, or will be
unable to, perform its obligations under this or any other
agreement between Bank and Borrower; or
7.11 Any of the preceding events occur with respect to any guarantor of
credit under this Agreement, or such guarantor dies or becomes
incompetent, unless the obligations arising under the guaranty and
related agreements have been unconditionally assumed by the
guarantor's estate in a manner satisfactory to Bank.
8. Successors; Waivers. Notwithstanding the Events of Default above, this
Agreement shall be binding upon and inure to the benefit of Borrower and
Bank, their respective successors and assigns, except that Borrower may
not assign its rights hereunder. No consent or waver under this
Agreement shall be effective unless in writing and signed by the Bank
and shall not waive or affect any other default, where prior or
subsequent thereto, and whether of the same or different type. No delay
or omission on the part of the Bank in exercising any right shall
operate as a waiver of such right or any other right.
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9. Arbitration.
9.1 At the request of either Bank or Borrower any controversy or claim
between the Bank and Borrower, arising from or relating to this
Agreement or any loan document executed in connection with this
Agreement or arising from any alleged tort shall be settled by
arbitration in Seattle, Washington. The Untied States Arbitration Act
will apply to the arbitration proceedings which will be administered
by the American Arbitration Association under its commercial rules of
arbitration except that unless the amount of the claims(s) being
arbitrated exceeds $5,000,000 there shall be only one arbitrator. Any
controversy over whether an issue is arbitrable shall be determined by
the arbitrator(s). Judgement upon the arbitration award may be entered
in any court having jurisdiction. The institution and maintenance of
any action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of either
party, including plaintiff, to submit the controversy or claim to
arbitration if such action for judicial relief is contested. For
purposes of the application of the statute of limitations the filing
of an arbitration as provided herein is the equivalent of filing a
lawsuit and the arbitrator(s) will have the authority to decide
whether any claim or controversy is barred by the statute of
limitations, and if so, to dismiss the arbitration on that basis. The
parties consent to the joinder in the arbitration proceedings of any
guarantor, hypothecator or other party having an interest related to
the claim or controversy being arbitrated.
9.2 Notwithstanding the provisions of Section 9.1, no controversy or claim
shall be submitted to arbitration without the consent of all parties
if at the time of the proposed submission, such controversy or claim
arises from or relates to an obligation secured by real property or by
a marine vessel;
9.3 No provision of this Section 9 shall limit the right of the Borrower
or the Bank to exercise self-help remedies such as setoff, foreclosure
or sale of any collateral, or obtaining any ancillary provisional or
interim remedies from a court of competent jurisdiction before, after
or during the pendency of any arbitration proceeding. The exercise of
any such remedy does not waive the right of either party to request
arbitration. At Bank's option foreclosure under any deed of trust may
be accomplished by exercise of the power of sale under the deed of
trust of judicial foreclosure as a mortgage.
10. Collection Activities, Lawsuits and Governing Law. Borrower agrees to pay
Bank all of Bank's costs and expenses (including reasonable attorney's fees
and the allocated cost for in-house legal services incurred by Bank),
incurred in the documentation and administration of this Agreement and the
loans reflected herein. The nonprevailing party shall, upon demand by the
prevailing party, reimburse the prevailing party of all of its costs,
expenses and reasonable attorneys' fees (including the allocated cost of
in-house counsel) incurred in connection with any controversy or claim
between said parties relating to this Agreement or any of the loan
documents, or to an alleged tort arising out of the transactions evidenced
by this agreement or any of the loan documents, including those incurred in
any action, bankruptcy proceeding, arbitration or other alternative dispute
resolution proceeding, or appeal, or in the course of exercising any
judicial or nonjudicial remedies. If suit is instituted by Bank to enforce
this Agreement or any of the loan documents, Borrower consents to the
personal jurisdiction of the courts of the State of Washington and Federal
Courts located in the State of Washington. Borrower further consents to the
venue of such suit being lain in Seattle, Washington. This Agreement and
any notes, security agreements and other loan documents entered into
pursuant to this Agreement shall be construed in accordance with the laws
of the State of Washington.
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+11. Additional Provisions. Borrower agrees to the additional provisions set
forth immediately following this Section 11 or on any "Exhibit - N/A"
attached to and hereby incorporated into Agreement. This Agreement
supersedes all oral negotiations or agreements between Bank and Borrower
with respect to the subject matter hereof and constitutes the entire
understanding and Agreement of the matters set forth in this Agreement.
11.1 If any provision of this Agreement is held to be invalid or
unenforceable the (a) such provision shall be deemed modified if
possible, or if not possible, such provision shall be deemed
stricken, and (b) all other provisions shall remain in full force
and effect.
11.2 If the imposition of or any change in any law, rule, or regulation
guideline or the interpretation or application of any thereof by
any court of administrative or governmental authority (including
any request or policy whether or not having the force of law) shall
impose or modify any taxes (except U.S., federal, state or local
income or franchise taxes imposed on Bank), reserve requirements,
capital inadequacy requirements or other obligations which would:
(a) increase the cost to Bank for extending or maintaining any
loans and/or line of credit to which this Agreement relates, (b)
reduce the amounts payable to Bank under this Agreement, such notes
and other instruments, or (c) reduce the rate of return on Bank's
capital as a consequence of Bank's obligations with respect to any
loan and/or line of credit to which this Agreement relates, then
Borrower agrees to pay Bank such additional amounts as will
compensate Bank therefore, within five (5) days after Bank's
written demand for such payment, which demand shall be accompanied
by an explanation of such imposition or charge and a calculation in
reasonable detail of the additional amounts payable by borrower,
which explanation and calculations shall be conclusive absent
manifest error.
11.4 Borrower agrees to provide audited financial statements annual
within 120 days of fiscal year end.
11.5 Borrower agrees to provide Form 10K annually within 120 days of
fiscal year end and FORM 10Q quarterly within 45 days of quarter
end.
11.6 Leases where both asset and related obligations are off balance
sheet will be allowed.
12. Miscellaneous. If any provision of this Agreement is held to be invalid
or unenforceable, then (a) such provision shall be deemed modified if
possible, or if not possible, such provision shall be deemed stricken,
and (b) all other provisions shall remain in full force and effect.
12.1 If the imposition of or any change in any law, rule, or regulation
guideline or the interpretation or application of any thereof by
any court of administrative or governmental authority (including
any request or policy whether or not having the force of law) shall
impose or modify any taxes (except U.S. federal, state or local
income or franchise taxes imposed on Bank), reserve requirements,
capital adequacy requirements or other obligations which would: (a)
increase the cost to Bank for extending or maintaining any loans
and/or line of credit to which this Agreement relates, (b) reduce
the amounts payable to Bank under this Agreement, such notes and
other instruments, or (c) reduce the rate of return on Bank's
capital as a consequence of Bank's obligations with respect to any
loan and/or line of credit to which this Agreement relates, then
Borrower agrees to pay Bank such additional amounts as will
compensate Bank therefor, within five (5) days after Bank's written
demand for such payment, which demand shall be accompanied by an
explanation of such imposition or change and a calculation in
reasonable detail of the additional amounts payable by Borrower,
which explanation and calculations shall be conclusive, absent
manifest error.
9
12.2 Bank may sell participations in or assign this loan in
whole or in part without notice to Borrower and Bank may
provide information regarding the Borrower and this
Agreement to any prospective participant or assignee. If a
participation is sold or the loan is assigned the purchaser
will have the right to set off against the Borrower and may
enforce its interest in the Loan irrespective of any claims
or defenses the Borrower may have against the Bank.
13. Notices. Any notices shall be given in writing to the opposite
party's signature below or as that party may otherwise specify in
writing.
14. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT,
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OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
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ENFORCEABLE UNDER WASHINGTON LAW.
---------------------------------
This Business Loan Agreement (Parts A and B) executed by the parties on ________
(date) Borrower acknowledges having read all of the provisions of this Agreement
and Borrower agrees to its terms.
Bank of America NT&SA. D.B.A. Seafirst Eastern Commercial, Team #1
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(Branch/Office)
By: /s/ J. Xxxx Xxxxxxxx
----------------------
J. Xxxx Xxxxxxxx Title: Vice President
---------------------- -------------------------------
Address: 000 X. Xxxxxxxxx Xxxx, Xxxxx, Xxx: Xxxxxxx, XX 00000
---------------------- -------------------------------
Phone: (000) 000-0000 Fax: (000) 000-0000
---------------------- -------------------------------
--------------------------------------------------------------------------------------
USANA, INC.
By: /s/ Xxxxxxx X. Xxxxxx Title: Vice President of Finance, CFO
------------------------ ------------------------------
Xxxxxxx X. Xxxxxx
------------------------
Address: 0000 X. Xxxxxxx Xxxx. Xxxx, Xxxxx, Xxx Xxxx Xxxxxx, XX 00000
------------------------ ------------------------------
Phone: (000) 000-0000 Fax: (000) 000-0000
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