FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment ("First Amendment") amends that certain Credit Agreement
dated November 15, 1996, by and between IMPERIAL BANK ("Bank") and EARTHSHELL
CONTAINER CORPORATION, a Delaware Corporation ("Borrower") (the "Agreement").
The parties desire to amend the Agreement and consideration of the mutual
covenants and conditions hereof, agree as follows:
1. The dollar amount of "$9,000,000" in Section 2. is hereby amended to read
"$13,000,000." The date of "November 15, 1996" is hereby amended to read
"October 6, 1997."
2. A new Section 5.15 is hereby added to read in its entirety as follows:
"REFERENCE PROVISION. a. Other than (i) non-judicial
foreclosure and all matters in connection therewith regarding security
interests in real or personal property; or (ii) the appointment of a
receiver, or the exercise of other provisional remedies (any and all of
which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this
Credit Agreement or any Note issued pursuant thereto (collectively, the
"Agreement"), which controversy, dispute or claim is not settled in
writing within thirty (30) days after the "Claim Date" (defined as the
date on which a party subject to the Agreement gives written notice to
all other parties that a controversy, dispute or claim exists), will be
settled by a reference proceeding in California in accordance with the
provisions of Section 638 ET SEQ. of the California Code of Civil
Procedure, or their successor section ("CCP"), which shall constitute the
exclusive remedy for the settlement of any controversy, dispute or claim
concerning this Agreement, including whether such controversy, dispute or
claim is subject to the reference proceeding and except as set forth
above, the parties waive their rights to initiate any legal proceedings
against each other in any court or jurisdiction other than the Superior
Court in the County where the real property securing this Agreement, if
any, is located or Los Angeles County if none (the "Court"). The referee
shall be a retired Judge of the Court selected by mutual agreement of the
parties, and if they cannot so agree within forty-five (45) days after
the Claim Date, the referee shall be promptly selected by the Presiding
Judge of the Court (or his representative). The referee shall be
appointed to sit as a temporary judge, with all of the powers of a
temporary judge, as authorized by law, and upon selection should take and
subscribe to the oath of office as provided for in Rule 244 of the
California Rules of Court (or any subsequently enacted Rule). Each party
shall have one peremptory challenge pursuant to CCP Section 170.6. The
referee shall (a) be requested to set the matter for hearing within sixty
(60) days after the Claim
Date and (b) try any and all issues of law or fact and report a statement
of decision upon them, if possible, within ninety (90) days of the Claim
Date. Any decision rendered by the referee will be final, binding and
conclusive and judgment shall be entered pursuant to CCP Section 644 in
any court in the State of California having jurisdiction. Any party may
apply for a reference proceeding at any time after thirty (30) days
following notice to any other party of the nature of the controversy,
dispute or claim, by filing a petition for a hearing and/or trial. All
discovery permitted by this Agreement shall be completed no later than
fifteen (15) days before the first hearing date established by the
referee. The referee may extend such period in the event of a party's
refusal to provide requested discovery for any reason whatsoever,
including, without limitation, legal objections raised to such discovery
or unavailability of a witness due to absence or illness. No party shall
be entitled to "priority" in conducting discovery. Depositions may be
taken by either party upon seven (7) days written notice, and request for
production or inspection of documents shall be responded to within ten
(10) days after service. All disputes relating to discovery which cannot
be resolved by the parties shall be submitted to the referee whose
decision shall be final and binding upon the parties. Pending appointment
of the referee as provided herein, the Superior Court is empowered to
issue temporary and/or provisional remedies, as appropriate.
b. Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted
including the time and place of all hearings, the order of presentation of
evidence, and all other questions that arise with respect to the course of
the reference proceeding. All proceedings and hearings conducted before
the referee, except for trial, shall be conducted without a court reporter,
except that when any party so requests, a court reporter will be used at
any hearing conducted before the referee. The party making such a request
shall have the obligation to arrange for and pay for the court reporter.
The costs of the court reporter at the trial shall be borne equally by the
parties.
c. The referee shall be required to determine all issues in accordance
with existing case law and the statutory laws of the State of California.
The rules of evidence applicable to proceedings at law in the State of
California will be applicable to the reference proceeding. The referee
shall be empowered to enter equitable as well as legal relief, to provide
all temporary and/or provisional remedies and to enter equitable orders
that will be binding upon the parties. The referee shall issue a single
judgment at the close of the reference proceeding which shall dispose of
all of the claims of the parties that are the subject of the reference.
The parties hereto expressly reserve the right to contest or appeal from
the final judgment or any appealable order or appealable judgment entered
by the referee. The parties hereto expressly reserve the right to findings
of fact, conclusions of law, a
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written statement of decision, and the right to move for a new trial or a
different judgment, which new trial, if granted, is also to be a reference
proceeding under this provision.
d. In the event that the enabling legislation which provides for
appointment of a referee is repealed (and no successor statute is
enacted), any dispute between the parties that would otherwise be
determined by the reference procedure herein described will be resolved
and determined by arbitration. The arbitration will be conducted by a
retired judge of the Court, in accordance with the California Arbitration
Act, Section 1280 through Section 1294.2 of the CCP as amended from time
to time. The limitations with respect to discovery as set forth herein
above shall apply to any such arbitration proceeding."
5. Except as herein, the Agreement remains unchanged and hereby ratified and
confirmed.
6. This First Amendment shall be effective as of October 6, 1997 and the
parties hereby confirm that the Agreement as amended is in full force and
effect.
EARTHSHELL CONTAINER CORPORATION IMPERIAL BANK
"BORROWER" "BANK"
By:/s/ Xxxxx Xxxxxxx By:/s/ Xxxxxx X. Xxxxxxxxxxx
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Xxxxx Xxxxxxx Xxxxxx X. Xxxxxxxxxxx
Chief Financial Officer Regional Vice President
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