Exhibit 10.7
BUSINESS LOAN AGREEMENT
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$10,000,000.00
The above references in the shaded area are for Lender's use only and do not
limit the applicability of this document to any particular loan or item.
Borrower: Tellium, Inc. Lender: Commerce Bank/Shore, N.A.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Oceanport, NJ 07757 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Principal Amount: $10,000,000.00 Initial Interest Rate: 6.75% Date of Agreement: 6-1-00
THIS BUSINESS LOAN AGREEMENT between Tellium, Inc. ("Borrower" or "Grantor") and
Commerce Bank/Shore, N.A. ("Lender") is made and executed on the following terms
and conditions. ▇▇▇▇▇▇▇▇ has applied to Lender for a loan in the total principal
amount of U.S. $10,000,000.00 in order to finance the working capital needs of
the Borrower. ▇▇▇▇▇▇ is conditionally willing to lend the loan amount to
Borrower solely under the terms and conditions specified in this Agreement and
in the Related Documents, to each of which ▇▇▇▇▇▇▇▇ agrees. ▇▇▇▇▇▇▇▇ 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, and (b) all such Loans shall be and remain subject to the
terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of June 1, 2000 and shall continue
thereafter until all Indebtedness has been paid in full, all other obligations
of Borrower hereunder have been performed in full, and the parties terminate
this Agreement in writing.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings customarily attributed to such terms in the Uniform Commercial Code.
All references to dollar amounts in lawful money of the United States of
America.
Agreement: shall mean the within business Loan Agreement dated June 1,
2000, between Tellium, Inc. as Borrower or Grantor and Commerce Bank/Shore,
N.A. as Lender.
Promissory Note: shall mean the Promissory Note dated June 1, 2000,
between Tellium, Inc., as Borrower, and Commerce Bank/Shore, N.A. as
Lender.
Related Documents: shall mean, the executed Business Loan Agreement, the
executed Promissory Note and other agreements related to the within
Loan/transaction.
LOAN. The Loan shall be in an amount not to exceed the principal sum of U.S.
$10,000,000.00 and shall bear interest on so much of the principal sum as shall
be advanced pursuant to the terms of this Agreement and the Related Documents.
The Loan shall bear interest on each Advance from the date of the Advance in
accordance with the terms of the accompanying Promissory Note and related
documents. Borrower shall use the Loan Funds solely for the following specific
purposes: To finance the working capital needs of the Borrower. The Loan amount
shall be subject at all times to all maximum limits and conditions set forth in
the law, this Agreement, the Note, or in any of the Related Documents.
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 which is duly organized, validly
existing, and in good standing under the laws of the State of Delaware and
is validly existing and in good standing in the State of New Jersey.
Borrower has the full power and authority to own its properties and to
transact the businesses in which it is presently engaged or presently
proposes to engage.
Authorization. The execution, delivery, and performance of this Agreement
by Borrower, to the extent to be executed, delivered or performed by
Borrower, have been duly authorized by all necessary action by Borrower; do
not require the consent or approval of any other person, regulatory
authority, or governmental body; and do not conflict with, result in a
violation of, or constitute a default under (a) any provision of its
Articles of Incorporation or organizational documents, by-laws, or any
agreement or other instrument binding upon Borrower or (b) any law,
governmental regulation, court decree or order applicable to Borrower.
Financial Information. Each financial statement of ▇▇▇▇▇▇▇▇ supplied to
Lender truly and completely disclosed ▇▇▇▇▇▇▇▇'s financial condition as of
the date of the statement, and there has been no materially adverse change
in Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to
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Lender or as of the date of the within document. Borrower has no material
contingent obligations except as disclosed in such financial statements.
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower (or the property) is pending, threatened, or anticipated and no
other event has occurred which may materially or adversely affect
Borrower's financial condition or properties - other than litigation,
claims, or other events, if any, which have been disclosed to and
acknowledged by ▇▇▇▇▇▇, in writing.
Legal Effect. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by ▇▇▇▇▇▇▇▇ when delivered will constitute,
legal, valid, and binding obligations of Borrower-enforceable against
Borrower (and Guarantor, if applicable) in accordance with their respective
terms.
Binding Effect. This Agreement, the Note, the related documents, and all
Security Agreements directly or indirectly securing repayment of Borrower's
Loan and Note are binding upon Borrower, as well as upon ▇▇▇▇▇▇▇▇'s
successors, representatives, and assigns, and are legally enforceable in
accordance with their respective terms.
Survival of Representations and Warranties. ▇▇▇▇▇▇▇▇ understands and
agrees that ▇▇▇▇▇▇ is relying upon the above representations and warranties
in extending Loan Advances to Borrower. ▇▇▇▇▇▇▇▇ further agrees that the
foregoing representations and warranties shall be continuing in nature and,
unless otherwise excepted herein or in the Related documents, shall remain
in full force and effect until such time as Borrower's Loan and Note shall
be paid in full, or until this Agreement shall be terminated in the manner
provided above, whichever is the last to occur.
PAYMENT OBLIGATIONS. Borrower will pay this loan in full on or before June 30,
2001. The annual interest rate for this loan is computed on a 365/360 basis;
that is, by applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay Lender
at ▇▇▇▇▇▇'s address shown above, or at such other place as Lender may designate
in writing. Unless otherwise agreed or required by applicable law, payments
will be applied first to accrued unpaid interest, then to principal, and any
remaining amount to any unpaid collection costs and late charges.
Interest alone shall be payable monthly during the Loan term at the rate
set forth herein (and in the accompanying Promissory Note) on the first day of
each month,
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commencing July 1, 2000, and from and after the first disbursement of the Loan
until June 30, 2001, (hereinafter referred to as the "Maturity Date")
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with ▇▇▇▇▇▇ that, while
this Agreement is in effect, Borrower will:
Adverse Changes/Litigation. Promptly inform ▇▇▇▇▇▇ in writing of (a) all
material adverse changes in Borrower's financial condition; (b) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower which
could materially affect the financial condition of Borrower; and/or (c) any
change in the legal or beneficial ownership of the Borrowing entity which
unreasonably impairs and/or invalidates the security pledged by Borrower in
conjunction with the within Loan.
Financial Records. Maintain its books and records in accordance with
generally accepted accounting principles, applied on a consistent basis,
and permit ▇▇▇▇▇▇ to immediately examine and audit ▇▇▇▇▇▇▇▇'s books,
records, and all other documents at all reasonable times.
Financial Statements. Furnish Lender with, as soon as available, but in no
event later than ninety (90) days after the end of each fiscal year,
▇▇▇▇▇▇▇▇'s balance sheet, tax returns, and income and expense statements
for the year ended, prepared by ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇'s accountant. All
financial reports required to be provided under this Agreement shall be
prepared in accordance with generally accepted accounting principles,
applied on a consistent basis, and certified by Borrower as being true and
correct. The said statements and balance sheet are to be reviewed by a
Certified Public Accountant, satisfactory to Lender. All such statements
shall set forth, in reasonable detail, the results, operations, and
conditions of the Borrower and all related businesses, certified as true
and correct by Borrower and shall be in form satisfactory to Lender.
Additionally, each year, the Borrower shall provide the Lender with signed
income tax returns.
Additional Information. Furnish such additional information and
statements, and other reports with respect to ▇▇▇▇▇▇▇▇'s financial
condition and business operations, as ▇▇▇▇▇▇ may request from time to time.
Loan Proceeds. Use the Loan Funds solely to finance the working capital
needs of the Borrower.
Performance. Perform and comply with all terms, conditions, and provisions
set forth in this Agreement and in all other instruments and agreements
between
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Borrower and Lender, (including the Promissory Note dated June 1, 2000) and
in all other loan agreements now or hereafter existing between Borrower and
any other party. Borrower shall notify Lender immediately, in writing, of
any default in connection with any agreement.
Additional Assurances. Make, execute, and deliver to Lender such Security
Agreements, instruments, documents, and any other agreements reasonably
necessary to document and secure the Loan and to perfect Lender's Security
Interests in the Property and Improvements.
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:
Indemnification. Borrower shall defend, release, and indemnify and hold
Lender (and its agents, representatives, employees, and attorneys) harmless
from any and all claims asserted against Lender by any person, entity, or
governmental body, or arising out of or in connection with this Agreement,
and the related documents. Lender shall be entitled to appear in any action
or proceeding to defend itself against such claims, and all costs incurred
by Lender in connection with such defense, (including attorneys' fees,)
shall, upon demand, be paid by ▇▇▇▇▇▇▇▇ to Lender. Lender shall, in its
sole discretion, be entitled to settle or compromise any asserted claims
against it, and such settlement shall be binding upon Borrower for purposes
of this indemnification. All amounts paid by ▇▇▇▇▇▇ under this paragraph
shall be secured by the Borrower's Savings Account which is pledged as
collateral for the within Loan and shall be deemed an additional principal
Advance under the Loan, payable upon demand, and shall bear interest at the
rate applicable to the Loan.
Actions. Lender shall have the right to commence, appear in, or defend any
action or proceeding purporting to affect the rights, duties, or
liabilities of the parties to this Agreement, or the disbursement of funds
from the Loan Fund. In connection with this right, ▇▇▇▇▇▇ may incur and pay
reasonable costs and expenses, including, but not limited to, attorneys'
fees, for both trial and appellate proceedings. Borrower covenants to pay
to Lender on demand all such expenses, together with interest from the date
Lender incurs the expense at the rate specified in the accompanying Note,
and Lender is authorized to disburse funds from the Loan Fund for such
purposes.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has
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made to Lender, or Borrower fails to comply with or to perform, when due, any
other term, obligation, covenant, or condition contained in this Document or any
agreement related to this Document, Promissory Note between the parties dated
June 1, 2000, or in any other agreement or loan Borrower has with Lender. (c)
Borrower defaults 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 property or
▇▇▇▇▇▇▇▇'s ability to repay the loan or perform Borrower's obligations under the
loan documents or any of the Related Documents. (d) Any representation or
statement made or furnished to Lender by Borrower or on Borrower's Behalf is
false or misleading in any material respect either now or at the time made or
furnished. (e) ▇▇▇▇▇▇▇▇ becomes insolvent, a receiver is appointed for any part
of ▇▇▇▇▇▇▇▇'s property, ▇▇▇▇▇▇▇▇ makes an assignment for the benefit of
creditors, or any proceeding is commenced either by Borrower or against Borrower
under any bankruptcy or insolvency laws. (f) Any creditor tries to take any of
▇▇▇▇▇▇▇▇'s property on or in which ▇▇▇▇▇▇ has a lien or security interest. This
includes a garnishment of or levy on any of ▇▇▇▇▇▇▇▇'s accounts with ▇▇▇▇▇▇. (g)
Any guarantor dies or any of the other events described in this default section
occurs with respect to any guarantor of this Agreement. (h) A material adverse
change occurs in Borrower's financial condition, or ▇▇▇▇▇▇ believes the prospect
of payment or performance of the indebtedness is impaired. (i) Borrower, without
the prior written consent of ▇▇▇▇▇▇, prematurely breaks, halts, withdraws, or
interrupts the Commerce Bank Savings Account which has been pledged as
collateral/security for the within Line of Credit. (j) Any change in the legal
or beneficial ownership of the borrowing entity which unreasonably impairs the
security pledged by Borrower in conjunction with the within Loan.
LENDER'S RIGHTS. Upon default, ▇▇▇▇▇▇ may declare the entire unpaid principal
balance on the loan and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including,
failure to pay upon final maturity, Lender, at its option, may also, if
permitted under applicable law, increase the variable interest rate on the
accompanying Note to 3 percentage points over the rate of interest charged prior
to default. The interest rate will not exceed the maximum rate permitted by
applicable law. Lender may hire or pay some other individual/entity to help
collect/enforce the obligations due under the loan agreements if Borrower does
not pay; Borrower will also pay Lender for such additional amounts. This
includes, subject to any limits under applicable law, ▇▇▇▇▇▇'s attorneys' fees
and ▇▇▇▇▇▇'s legal expenses, whether or not there is a lawsuit, including
attorneys' fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgement collection services. If not prohibited by applicable
law, Borrower will pay any court costs, in addition to all other sums provided
by law. This Agreement has been delivered to Lender and accepted by Lender in
the State of New Jersey. If there is a lawsuit, ▇▇▇▇▇▇▇▇ agrees, upon ▇▇▇▇▇▇'s
request, to
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submit to the jurisdiction of the courts of Monmouth County, the State of New
Jersey or such other lawful jurisdiction as the Lender may determine. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New Jersey.
Additionally, upon default, and without any further notice to the Borrower,
the Lender shall have complete and uninterrupted access to the Commerce Bank
Savings Account (Account #▇▇▇▇▇▇▇) which has been pledged as collateral for the
within Loan. That is, the said Savings Account has been assigned to the Lender,
and/or its successors. By signing the within Agreement, ▇▇▇▇▇▇▇▇ consents to
the assignment of the aforementioned Savings Account to the benefit of the
Lender, or its successor. However, notwithstanding anything contained herein to
the contrary, such an assignment shall only occur if Borrower is in default of
any of its obligations connected with the within Agreement.
With regard to the above, the Borrower shall sign and execute such other
documents as Lender may, in its sole discretion, deem necessary to effectuate
the assignment as aforesaid. Borrower hereby irrevocably appoints ▇▇▇▇▇▇,
and/or its successor, as its Power of Attorney to sign any and all documents in
this regard. The representations and obligations contained herein shall survive
settlement.
Finally, nothing contained herein shall prevent Lender (and/or its
successors) from pursuing any other recourse as law or equity may allow.
ADDITIONAL REMEDIES: Notwithstanding anything contained herein to the contrary,
in the event of ▇▇▇▇▇▇▇▇'s default, Lender may also avail itself to the
following:
TERMINATION OF ACCOUNT. If Borrower's Account is in default, Lender may,
at its option, and without further notice or demand, eliminate Borrower's
available credit by reducing Borrower's credit line to zero. In such an
event, Lender will require Borrower to return any unused credit line
account checks (if applicable) and, until Borrower does so, and until the
principal balance of the loan has been paid in full, Lender will not
release its interest in the collateral for the loan. Additionally, in such
an event, Lender will no longer supply Borrower with additional credit line
account checks (if applicable). Moreover, Borrower shall immediately repay
to Lender, any principal balance, accrued finance charges, and any other
charges which may be due and owing.
SUSPENSION OF CREDIT PRIVILEGES. Lender may, temporarily or permanently,
prohibit additional advances, or may reduce Borrower's credit line during
any period in which (a) the value of the Lender's collateral declines
significantly; (b) Lender has reason to believe that the Borrower will be
unable to
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meet the repayment terms set forth herein because there has been a material
change in any of the Borrower's financial circumstances; and/or (c)
Borrower does not abide by any obligation contained in the within
Agreement.
CESSATION OF ADVANCES. Lender shall have no obligation to make Loan
Advances or to disburse Loan proceeds under this Agreement or under any
other agreement 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; (b) Borrower or
any Guarantor dies, becomes incompetent or insolvent, files a petition in
bankruptcy or similar proceeds, or is adjudged a bankrupt; (c) there occurs
a material adverse change in Borrower's financial condition, in the
financial condition of any Guarantor, or in the value of any Collateral
securing any Loan; (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; or (e) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure, even
though no Event of Default shall have occurred.
CLOSING OF ACCOUNT. Upon sixty (60) days advanced written notice to Lender (at
the address shown above), Borrower may close the Account if (a) the principal
balance on the account is zero; and (b) Borrower (if applicable) has not issued
any credit line account checks which are still outstanding. In the event both
the aforementioned conditions (and any other conditions contained in the loan)
are satisfied, within sixty (60) days of the receipt of ▇▇▇▇▇▇▇▇'s request to
close the account, ▇▇▇▇▇▇ will release its security interest in the collateral
which secures the account.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title, and interest in and to Borrower's accounts with Lender
(whether checking, savings, certificate of deposit, or some other account),
including, without limitation, all accounts held jointly with another
entity/individual and all accounts Borrower may open in the future, excluding,
however, all IRA and ▇▇▇▇▇ Accounts, and all trust accounts for which the grant
of a security interest would be prohibited by law. Borrower authorizes ▇▇▇▇▇▇,
to the extent permitted by applicable law, to charge or setoff all sums owing on
this Agreement against any and all such accounts.
INCORPORATION BY REFERENCE. The Promissory Note dated June 1, 2000 is
incorporated herein at length.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
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Agency. Nothing in this Agreement shall be construed to constitute the
creation of a partnership or joint venture between Lender and Borrower or
any contractor. ▇▇▇▇▇▇ is not an agent or representative of Borrower.
This Agreement does not create a contractual relationship with and shall
not be construed to benefit or bind Lender in any way with or create any
contractual duties by ▇▇▇▇▇▇ to any contractor, subcontractor, materialman,
laborer, or any other person. The relationship between ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
will, at all times, be that of a Creditor and Debtor.
Amendments. This Agreement, together with the Commitment Letter, Note,
Assignment of Accounts, Business Loan Agreement, Support Documents and
Related Documents, constitute 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 shall be effective, unless given in writing and
signed by the party or parties sought to be charged or bound by the
alteration of amendment.
Applicable Law. This Agreement has been delivered to Lender and accepted
by Lender in the State of New Jersey. If there is a lawsuit, ▇▇▇▇▇▇▇▇
agrees upon ▇▇▇▇▇▇'s request to submit to the jurisdiction of the courts of
Monmouth County, the State of New Jersey or any such other New Jersey
County as the Lender may determine. This Agreement shall be governed by
and construed in accordance with the laws of the State of New Jersey.
Litigation. Borrower represents that there is no Litigation pending,
threatened, or anticipated against Borrower which would, in any way, affect
Borrower's ability to repay the Loan amount as referenced herein.
Authority to File Notices. Borrower appoints and designates Lender as its
attorney-in-fact to file for record any notice that ▇▇▇▇▇▇ deems necessary
to protect its interest under this Agreement. This power shall be deemed
coupled with an interest and shall be irrevocable while any sum or
performance remains due and owing under this Agreement or under any of the
Related Documents or Support Documents.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
Multiple Parties; Corporate/Company Authority. All obligations of Borrower
under this Agreement shall be joint and several, and all references to
Borrower
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shall mean each and every Borrower. This means that each of the
persons/entities signing below is responsible for all obligations in this
Agreement.
Consent to Loan Participation. ▇▇▇▇▇▇▇▇ agrees and consents to ▇▇▇▇▇▇'s sale or
transfer, whether now or later, of one or more participation interests in the
Loans 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 or about any other matter relating to the Loan, and Borrower hereby
expressly waives any rights to privacy it may have with respect to such matters.
Borrower additionally expressly waives any and all notices of sale of
participation interest, as well as all notices of any repurchase of such
participation interests. ▇▇▇▇▇▇▇▇ also agrees that the purchasers of any such
participation interest will be considered as the absolute owners of such
interest in the Loans and will have all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. 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 and unconditionally agrees that either Lender or such
purchaser may enforce Borrower's obligation under the Loans - irrespective of
the failure or insolvency of any holder of any interest in the Loans. ▇▇▇▇▇▇▇▇
further agrees that the purchaser of any such participation interests may
enforce its interest - irrespective of any personal claims or defenses that
Borrower may have against ▇▇▇▇▇▇.
Costs and Expenses. ▇▇▇▇▇▇▇▇ agrees to pay, upon demand, all of ▇▇▇▇▇▇'s
expenses, including, without limitation, attorneys' fees, incurred in connection
with the preparation, execution, enforcement, modification, and collection of
this Agreement or in connection with the Loans made pursuant to this Agreement.
Lender may pay some other individual/entity to help collect the Loans and to
enforce this Agreement, and Borrower will pay that amount. This includes,
subject to any limits under applicable law, ▇▇▇▇▇▇'s attorneys' fees and
▇▇▇▇▇▇'s legal expenses, whether or not there is a lawsuit, including attorneys'
fees for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. ▇▇▇▇▇▇▇▇ also will pay any of ▇▇▇▇▇▇'s court costs, in
addition to all other sums provided by law.
Entire Agreement. This Agreement and the Related Documents constitute all of
the agreements between the parties relating to the closing and supersede all
other prior or concurrent oral or written agreements or understandings relating
to the closing.
Notices. All notices required to be given under this Agreement shall be given
in writing, may be sent by telefacsimile (unless otherwise required by law), and
shall be effective when actually delivered or when deposited with a nationally
recognized overnight courier
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or deposited in the United States mail, first class, postage prepaid, addressed
to the party to whom the notice is to be given at the address shown herein. Any
party may change its address for notices under this Agreement by giving formal
written notice to the other parties, specifying that the purpose of the notice
is to change the party's address. To the extent permitted by applicable law, if
there is more than one Borrower, notice to any Borrower will constitute notice
to all Borrowers. For notice purposes, Borrower will keep Lender informed at all
times of ▇▇▇▇▇▇▇▇'s current address(es).
Successors and Assigns. All covenants and agreements contained by or on behalf
of Borrower shall bind its successors and assigns and shall inure to the benefit
of Lender, its successors, and assigns. BORROWER SHALL NOT, HOWEVER, HAVE THE
RIGHT TO ASSIGN ITS RIGHTS UNDER THIS AGREEMENT OR ANY INTEREST THEREIN, WITHOUT
THE PRIOR WRITTEN CONSENT OF LENDER.
Severability. If a court of competent jurisdiction finds any provision of this
Agreement to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending provision shall be
deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects shall remain
valid and enforceable.
Survival. All warranties, representations, and covenants made by Borrower in
this Agreement shall be considered to have been relied upon by ▇▇▇▇▇▇ and will
survive the making of the Loan and delivery to Lender of the Related Documents -
regardless of any investigation made by ▇▇▇▇▇▇ or on ▇▇▇▇▇▇'s behalf.
Time is of the Essence. Time is of the Essence in the performance of this
Agreement.
Waiver. Lender shall not be deemed to have waived any rights under this
Agreement, unless such waiver is given in writing and signed by ▇▇▇▇▇▇. 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 ▇▇▇▇▇▇ of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by ▇▇▇▇▇▇, nor any course of dealing between
▇▇▇▇▇▇ and Borrower, or between Lender and any Grantor/Guarantor, shall
constitute a waiver of any of Lender's rights or of any obligations of Borrower
or of any Grantor/Guarantor as to any future actions, obligations, or
transactions. Whenever the consent of Lender is required under this Agreement,
the granting of such consent by Lender in any instance shall not constitute
continuing consent
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in subsequent instances where such consent is required, and in all cases, such
consent may be granted or withheld in the sole discretion of Lender.
PRIOR TO SIGNING THIS DOCUMENT, ▇▇▇▇▇▇▇▇ READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS BUSINESS LOAN AGREEMENT, ▇▇▇▇▇▇▇▇ AGREES TO THE TERMS OF THE BUSINESS
LOAN AGREEMENT AND ACKNOWLEDGES RECEIPT OF AN EXECUTED COPY OF THE SAME.
▇▇▇▇▇▇▇▇ ALSO ACKNOWLEDGES REVIEWING THE CONTENTS OF THIS AGREEMENT WITH AN
ATTORNEY OF ITS OWN CHOICE.
ATTEST
Telliurn, Inc., Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
Date: 6 - 1 - 00 Date: 1 June 00
-------------------------- -----------------------------
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