Exhibit 10.18
LOAN AGREEMENT
THIS LOAN AGREEMENT is entered into as of July 28, 1998 by
XXXXXXX-XXXXXX PROPERTIES LTD., an Illinois corporation ("Borrower"), and
EAST-WEST BANK, a California banking corporation ("Lender").
ARTICLE I
LOANS
1.1 The Loans. Lender agrees, on the terms and conditions set forth in
this Agreement, to make advances of the credit available under this Agreement
(each such advance, a "Loan" and collectively, the "Loans") to Borrower from the
date of this Agreement to June 5, 1999 (the "Commitment Termination Date"). The
aggregate amount of Loans outstanding at any time shall not exceed $1,000,000.
Borrower and Lender intend the Loans to be revolving and as such, until the
Commitment Termination Date, Borrower may borrow, repay and reborrow the Loans.
After the Commitment Termination Date, Borrower will not have the right to
borrow, and Lender will not make, any Loans.
1.2 Interest and Fees.
(a) On the first day of the month following the month in which
the first Loan is disbursed and on the first day of each month after such date
(each a "Payment Date"), Borrower shall pay to Lender the amount of interest
which shall have accrued during the calendar month (or portion of such calendar
month, as applicable) immediately preceding such Payment Date. The aggregate
amount of Loans outstanding from time to time shall bear interest at the rate
which is the sum of (i) the Libor Rate published from time to time by The Wall
Street Journal as the interest rate now quoted each business day for obligations
of three months' maturity, under the caption "Money Rates, London Interbank
Offered Rates (Libor)" and (ii) 3.25% per annum. If The Wall Street Journal
discontinues publishing Libor rates, Lender shall select a comparable rate in
its place. Borrower's monthly payment amount shall be calculated based on the
following: (1) interest shall be fixed for each month at the interest rate based
on the applicable Libor rate published on the last business day of the preceding
calendar month; and (2) interest shall be payable in arrears.
(b) Borrower shall on the date of this Agreement pay Lender a
loan fee in the amount of $5,000.
1.3 Principal Repayment.
(a) Borrower shall promptly prepay the principal amount of the
Loans at any time and to the extent that the aggregate principal amount of all
Loans outstanding exceeds $1,000,000, together with accrued interest on the
amount prepaid.
(b) Borrower may, in a minimum amount of $10,000, prepay the
outstanding principal amount of the Loans on any Payment Date.
(c) Borrower shall repay the principal amount of each Loan
outstanding, together with all accrued interest thereon, on the earlier of 45
days from the date such Loan was made and June 6, 1999. All Loans, all accrued
interest thereon and all other amounts owing under this Agreement, the
Promissory Note made by Borrower on the date of this Agreement in the principal
amount of $1,000,000 payable to the order of Lender (the "Note") and all other
documents executed in connection with the Loans (the "Loan Documents") shall be
due and payable on June 6, 1999, unless the maturity shall have been accelerated
pursuant to the terms of this Agreement.
(d) All principal payments received pursuant to Sections 1.3(a),
(b) or (c) shall be applied to repay Loans in descending order of time
outstanding, beginning with the Loan which has been outstanding the longest.
1.4 Manner of Payment. All payments received by Lender later than 1:00
p.m. (Los Angeles time) shall be considered received on the following business
day. Receipt of a check for any payments in and of itself shall not constitute
payment. Lender may apply any payments made pursuant to the terms of this
Agreement and the other Loan Documents in such order as it shall determine in
its sole and absolute discretion.
1.5 Evidence of Debt.
(a) Borrower's indebtedness resulting from all Loans made from
time to time shall be evidenced by the Note.
(b) The books and accounts of Lender shall be conclusive
evidence, absent manifest error, of the amounts of all Loans, repayments,
interest, fees and other charges advanced, due, outstanding or paid pursuant to
this Agreement.
1.6 Overdue Payments. Except as otherwise expressly provided in this
Agreement, any amount payable under this Agreement or any other Loan Document
which is not paid when due (whether as a result of maturity, acceleration or
otherwise) shall bear interest, payable on demand, at a rate equal to the sum of
the interest rate provided for in Section 1.2(a) above plus five percent per
annum.
1.7 Use of Loan Proceeds. Loans may be used only for Borrower's
general working capital purposes.
1.8 Net Payments. All payments made by Borrower under this Agreement
and the other Loan Documents shall be made without setoff or counterclaim and in
such amounts as may be necessary in order that all such payments (after
deduction or withholding for or on account of any future taxes, levies, imposts,
duties or other charges of whatsoever nature imposed by any government, any
political subdivision or any taxing authority, including future taxes made
effective retroactively, other than any tax on or measured by the overall net
income of Lender pursuant to the income, bank or franchise tax laws of the
United States or the State of California (collectively, "Taxes")) shall not be
less than the amounts otherwise specified to be paid under this Agreement and
the other Loan Documents. A certificate as to any additional amounts payable to
Lender under this Section 1.8 submitted to Borrower by Lender shall show in
reasonable detail the amount payable and the calculations used to determine in
good faith such amount and shall be conclusive absent manifest error. Any
amounts payable by Borrower under this Section 1.8 with respect to past payments
shall be due within five business days following receipt by Borrower of such
certificate from Lender; any such amounts payable with respect to future
payments shall be due concurrently with such future payments. With respect to
each deduction or withholding for or on account of any Taxes, Borrower shall
promptly furnish to Lender such certificates, receipts and other documents as
may be required (in the reasonable judgment of Lender) to establish any tax
credit to which Lender may be entitled. Without any way affecting any of its
rights under this Section 1.8, Lender agrees that, upon its becoming aware that
any of the present or future payments due it under this Agreement would be
subject to deduction for Taxes, it will notify Borrower in writing, and Lender
further agrees that it will use reasonable efforts not disadvantageous to it (in
its sole determination) in order to avoid or minimize, as the case may be, the
payment by Borrower of any additional amount for Taxes pursuant to this Section
1.8.
ARTICLE II
LOAN ADVANCES AND CONDITIONS
2.1 Requests for Loans. Lender shall make each Loan to Borrower on the
business day following Borrower's request therefor if such request is given by
2:00 p.m. on any business day (or on the second following business day if such
request is given after 2:00 p.m. on any business day), which request shall (a)
be in writing, (b) state the amount of the Loan being requested and (c) include
a certification by Borrower in the form of Exhibit A to this Agreement.
2.2 Conditions Precedent to Initial Loan. Lender's obligation to make
the initial Loan shall be subject to the satisfaction of the conditions
precedent set forth in this Section 2.2.
(a) Loan Documents. Lender shall have received this Agreement and
the Note duly executed by Borrower and a Guaranty (the "Guaranty") duly executed
by Xxxxxxx-Xxxxxx, Inc. (the "Guarantor").
(b) Borrower. Lender shall have received the following concerning
Borrower and Guarantor, in form and substance satisfactory to Lender: (i) a copy
of Borrower's bylaws certified to be true and complete by Borrower's secretary
or assistant secretary; (ii) a copy of Borrower's articles of incorporation and
any amendments, certified by the Illinois Secretary of State; (iii) recent
good-standing certificates regarding Borrower issued by the California and
Illinois Secretaries of State; (iv) certificates of Borrower's and Guarantor's
secretary or assistant secretary, including a copy of resolutions, indicating
that Borrower is authorized to execute and deliver the Loan Documents and to
perform its obligations under the Loan Documents and the Guarantor is authorized
to execute and deliver the Guaranty and perform its obligations under the
Guaranty; (v) a certificate with respect to the incumbency and signature of each
person authorized to execute and deliver the Loan Documents and Loan requests;
and (vi) such other documents as Lender shall reasonably request with respect to
Borrower's existence and authorization.
(c) Other Conditions Precedent. Lender shall have received the
following, in form and substance satisfactory to Lender:
(i) such financial statements of Borrower and the Guarantor
and Borrower's affiliates as Lender shall require;
(ii) if required by Lender, an opinion of counsel to
Borrower and the Guarantor satisfactory to Lender concerning the existence and
power of Borrower and the Guarantor, the due authorization, execution, delivery
and enforceability of the Loan Documents and such other matters as Lender shall
require;
(iii) payment of the loan fee referred to in Section 1.2
above and the payment of all of Lender's costs of closing the Loan, including,
without limitation, legal costs; and
(iv) such other documents, agreements, certificates and
assurances as Lender shall require.
2.3 Conditions Precedent to All Loans. Lender's obligation to make any
Loan (including the initial Loan) is subject to all of the following conditions
precedent:
(a) Lender shall not have previously made a Loan in the week in
which Borrower is proposing a Loan to be made;
(b) the Loan shall be in an amount not less than $10,000;
(c) the Loan, when aggregated with all outstanding Loans, shall
not exceed $1,000,000;
(d) there shall exist no "Event of Default" (as defined in
Section 6.1 below) or event which, with the passage of time or the giving of
notice, or both would become an Event of Default (a "Potential Event of
Default");
(e) Lender is satisfied that no material adverse change in the
business or financial condition or management of Borrower or the Guarantor has
occurred; and
(f) all of the representations and warranties given by Borrower
and the Guarantor in the Loan Documents shall be deemed to have been made on
each date that a Loan is made and such representations and warranties shall be
true on such date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower makes the representations and warranties set forth in this
Article III to Lender.
3.1 Existence. Borrower is a corporation duly organized, validly
existing and in good standing under the laws of Illinois and has been duly
qualified to transact business as a foreign corporation in California.
3.2 Power. Borrower has all necessary corporate power to enter into
the Loan Documents and perform its obligations under such Loan Documents.
3.3 Enforceability of Loan Documents. The Loan Documents have been
duly executed and delivered by Borrower and are the legal, valid and binding
obligations of Borrower, enforceable against Borrower in accordance with their
respective terms.
3.4 Approvals. (a) Borrower has obtained all material approvals,
licenses, exemptions and other authorizations from, and have accomplished all
material filings, registrations and qualifications with, all applicable
governmental authorities that are necessary for the transaction of their
business; and (b) no authorization or approval or other action by, and no notice
to or filing with any governmental authority or regulatory body is required for
the due execution, delivery and performance by Borrower of the Loan Documents.
3.5 No Conflict. Borrower's execution and delivery of, and its
performance of its obligations under, the Loan Documents do not and will not
conflict with (a) any (i) contractual or legal restriction or obligation, or
(ii) court or regulatory order, binding on or affecting Borrower, or (b) any
restriction contained in any of Borrower's constituent or governing documents.
3.6 Pending Litigation or Other Proceedings. There is no pending or,
to the knowledge of Borrower, threatened action, proceeding or investigation
before any court, governmental agency or arbitrator against or affecting
Borrower or any of Borrower's material assets which, if decided adversely to
Borrower, would materially and adversely affect the financial condition of
Borrower, or would materially and adversely affect the present or future ability
of Borrower to perform its obligations under the Loan Documents.
3.7 Solvency. Borrower is not insolvent and will not be rendered
insolvent by the transactions contemplated by the Loan Documents. After giving
effect to such transactions, Borrower will not be left with an unreasonably
small amount of capital with which to engage in its business or undertakings,
nor will Borrower have intended to incur, or believe that it has incurred, debts
beyond its ability to pay such debts as they mature.
3.8 Taxes. Borrower has filed all required federal, state and local
tax returns. Borrower has paid all federal, state and local taxes due (including
any interest and penalties) other than taxes being promptly and actively
contested in good faith and by appropriate proceedings. Borrower has established
and is maintaining adequate reserves for tax liabilities (including contested
liabilities) in accordance with generally accepted accounting principles.
3.9 Laws. Borrower is in material compliance with all laws,
regulations and court orders applicable to it and its business, including all
state and federal securities laws. Borrower has no any liability, contingent or
otherwise, under any applicable law governing the use or disposal of hazardous
materials.
3.10 Insurance. Borrower has insurance coverage for its properties in
prudent amounts provided by prudent insurers given the nature of its business
and the kinds of properties it owns.
3.11 No Contractual Defaults. There are no material defaults by
Borrower under any material contract to which Borrower is a party. Borrower has
not received an notice nor does it have any knowledge of any existing
circumstances in respect of which it could receive any notice of default or
breach in respect of any of its material contracts.
3.12 Financial Position. The financial statements and all financial
data delivered to Lender relating to Borrower and the Guarantor are true,
correct and complete in all material respects. Such financial statements fairly
present the financial position of the parties or properties who are their
subjects as of the dates indicated. No material adverse change has occurred in
such financial position since the date of such financial statements, and, except
for the Loans, Borrower has incurred no indebtedness since the date of any such
statements.
3.13 Disclosure. None of Borrower's representations or warranties
contained in this Agreement or any other document, certificate or written
statement furnished to Lender by or on behalf of Borrower contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained in this Agreement or in such other
document, certificate or written statement (when taken in their entirety) not
misleading. There is no fact known to Borrower which materially or adversely
affects the business, operations, assets or condition (financial or otherwise)
of Borrower which has not been disclosed in this Agreement or in another written
statement delivered to Lender by Borrower.
3.14 ERISA. Borrower has not incurred any material accumulated funding
deficiency within the meaning of ERISA, and has not incurred any material
liability to the Pension Benefit Guaranty Company ("PBGC") in connection with
any employee benefit plan subject to the provisions of ERISA or other class of
benefit that PBGC has elected to insure.
ARTICLE IV
COVENANTS
While any obligation of Borrower under the Loan Documents remains
outstanding, Borrower shall comply with the following covenants.
4.1 Organization and Status of Borrower. Borrower shall maintain its
corporate existence and all licenses and permits relating thereto in good
standing in every jurisdiction in which the nature of its business makes
qualification necessary or where failure to qualify would have a material
adverse effect on its financial condition or the performance of its obligations
under the Loan Documents.
4.2 Compliance with Laws. Borrower shall remain in compliance in all
material respects with all laws and requirements applicable to its business,
including all applicable federal and state securities laws, and obtain all
authorizations, consents, approvals, orders, licenses, exemptions from, and
accomplish all filings or registrations or qualifications with, any governmental
agency that are necessary for the transaction of its business.
4.3 Books and Records. Borrower shall maintain full and complete books
of account and other records reflecting the results of its operations, in
accordance with generally accepted accounting principles applied on a consistent
basis, and permit Lender and its agents, at all reasonable times and from time
to time, to inspect and copy any such books and records.
4.4 Notice of Certain Matters. Borrower shall give notice to Lender,
promptly upon learning thereof, of each of the following:
(a) any litigation or claim of any kind that might subject
Borrower to liability in excess of $50,000, whether covered by insurance or not;
(b) any material dispute between Borrower and any governmental
agency;
(c) the occurrence of an Event of Default;
(d) the existence of any "reportable event" as defined in ERISA;
and
(e) any other event or condition causing a material adverse
change in the financial condition of Borrower or the Guarantor.
4.5 Further Assurances. Borrower shall execute and acknowledge (or
cause to be executed and acknowledged) and deliver to Lender all documents, and
take all actions, required by Lender from time to time to confirm the rights
created or now or hereafter intended to be created under the Loan Documents and
the transactions contemplated thereunder, to maintain, protect, perfect and
further the validity and enforceability of the Loan Documents or other
collateral for Borrower's obligations under the Loan Documents.
4.6 Taxes. Borrower shall pay and discharge all taxes, assessments and
governmental charges or levies imposed on it, on its income or profits or on any
of its property prior to the date on which penalties attach thereto.
4.7 Information.
(a) Borrower shall deliver the following information to Lender:
(i) as soon as available and in any event not later than 90
days following the end of each fiscal year of Guarantor, a consolidated and
consolidating (including separate information for Borrower) balance sheet of
Guarantor as of the end of such year and consolidated and consolidating
(including separate information for Borrower) statements of income,
shareholders' equity and cash flow of Guarantor for such year, setting forth in
each case in comparative form corresponding consolidated and consolidating
figures from the preceding fiscal year and certified in accordance with
generally accepted accounting principles by independent certified public
accountants satisfactory to Lender, together with Guarantor's report to the
Securities and Exchange Commission on Form 10K;
(ii) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal year of
Guarantor, a consolidated and consolidating (including separate information for
Borrower) balance sheet of Guarantor as of the end of such quarter and the
related consolidated and consolidating (including separate information for
Borrower) statement of income of Guarantor for such quarter and the portion of
Guarantor's fiscal year ended at the end of such quarter, setting forth in each
case in comparative form the figures for the corresponding portion of
Guarantor's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation and preparation in accordance with
generally accepted accounting principles by the chief financial officer of
Guarantor, together with Guarantor's report to the Securities and Exchange
Commission on Form 10Q;
(iii) simultaneously with delivery of each set of financial
statements referred to in Sections 4.8(a)(i) and (ii) above, a certificate of
the chief financial officer of Borrower stating whether there exists on the date
of such certificate any Event of Default or Potential Event of Default, setting
forth the details thereof and the action that Borrower is taking or proposes to
take with respect thereto; and
(iv) such other information concerning Borrower and
Guarantor, as Lender shall reasonably request.
(b) If Borrower fails to furnish promptly any information or
report required by Section 4.8(a) above or any other person fails to furnish
promptly any information or report required by any other provision of any of the
Loan Documents, or if Lender reasonably determines such reports to be
unacceptable, Lender may elect (in addition to exercising any other right or
remedy it has under the Loan Documents) to make an audit of all the books and
records of Borrower and to prepare the information or report which Borrower
failed to deliver. Such audit shall be performed and such information or report
shall be prepared by an independent firm of certified public accountants to be
selected by Lender. Borrower shall pay all expenses of the audit and other
related services.
4.8 Insurance. Borrower shall maintain insurance with responsible and
reputable insurance companies in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which Borrower operates.
4.9 Maintenance of Properties. Borrower shall maintain and preserve
all of its properties in good working order and condition in accordance with the
terms of all leases of space in such properties and otherwise in accordance with
prudent standards or business conduct.
4.10 Debt. Borrower shall not incur any "Debt" (as defined below)
other than pursuant to this Agreement and Borrower's debt incurred in connection
with the acquisition of Xxxxxxx Properties Ltd. in the approximate amount of
$22,000,000. "Debt" means any of (a) indebtedness or liability for borrowed
money whether or not evidenced by a written instrument, or for the deferred
purchase price of property or services; (b) obligations as lessee under leases
which should have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases; (c) obligations under any
guarantee or other agreement to become secondarily liable for any obligation of
another, endorsements (other than for collection or deposit in the ordinary
course of business) and other contingent obligations to purchase, to provide
funds for payment, to supply funds to invest or otherwise to assure a creditor
against loss; or (d) obligations secured by a lien on Borrower's property,
whether or not the obligations have been assumed by Borrower. Debt shall not
include current accounts payable incurred by Borrower in reasonable amounts in
the ordinary course of Borrower's business.
4.11 Liens. Borrower shall not create, incur, assume or suffer to
exist any lien, security interest or other charge or encumbrance (including the
lien or retained security title of a conditional vendor) of any kind, upon or
with respect to any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter acquired, or sign or file
under the Uniform Commercial Code of any jurisdiction a financing statement
which names Borrower as debtor, or sign any security agreement authorizing any
secured party thereunder to file such financing statement, or assign any
accounts.
ARTICLE V
EVENTS OF DEFAULT
5.1 Events of Default. The occurrence of any of the following shall be
an "Event of Default":
(a) Borrower's failure to pay when due any installment of
principal or interest under this Agreement or any other sum required to be paid
by the terms of any Loan Document;
(b) the failure of Borrower, within 30 days following written
notice from Lender, to observe or perform any covenant or other agreement
contained in any Loan Document (other than the covenants or agreements referred
to above in Section 5.1(a)); provided, however, that the notice and 30-day grace
period set forth above shall be applicable only to a failure to observe or
perform any covenant or other agreement which is reasonably susceptible of being
cured; provided further, that should Borrower be unable to cure its failure
within such 30-day period despite beginning to cure such failure promptly after
receipt of notice and prosecuting such attempt diligently during such 30-day
period, the cure period shall be extended an additional 30 days so long as
Borrower continues diligently to prosecute the cure during such additional
period;
(c) any written representation, warranty or financial statement
given by Borrower or Guarantor shall have been untrue in any material respect
when given;
(d) the occurrence of a default under any of the Loan Documents
and the failure of any such default to be cured during the permitted time, if
any, for such cure;
(e) either of Borrower or Guarantor shall be unable or shall
admit in writing its inability to pay its debts when due, or shall make an
assignment for the benefit of creditors; or either of them shall apply for or
consent to the appointment of any receiver, trustee or similar officer for such
person or for all or any substantial part of such person's property; or either
of them shall institute (by petition, application, answer, consent or otherwise)
any bankruptcy, insolvency, reorganization, arrangement, readjustment of debts,
dissolution, liquidation, or similar proceedings relating to such person under
the laws of any jurisdiction;
(f) if a receiver, trustee or similar officer shall be appointed
for Borrower or Guarantor, or for all or any substantial part of any such
person's property without the application or consent of such person, and such
appointment shall continue undischarged for a period of 60 days (whether or not
consecutive); or any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation or similar proceedings shall be
instituted (by petition, application or otherwise) against any such person and
shall remain undismissed for a period of 60 days (whether or not consecutive);
(g) all or any material part of the assets of Borrower or
Guarantor shall become subject to attachment, execution or judicial seizure
(whether by enforcement of money judgment, by writ or warrant of attachment, or
by any other process) in an amount greater than $25,000;
(h) Borrower or Guarantor, as applicable, shall be in default in
the payment of any indebtedness (whether or not secured) or the performance of
any other obligation secured by a lien on any material asset of such entity and
such default is not cured within the time, if any, specified for such a cure in
any applicable agreement;
(i) any of the Loan Documents shall cease to be a valid, binding
and enforceable obligation of the person purported to be bound; or Borrower or
Guarantor shall assert such cessation or failure in writing; or
(j) the occurrence of a material adverse change in the financial
condition of Guarantor.
6.2 Remedies upon Default. Upon the occurrence of any Event of
Default, Lender may, at its option, do any of the following:
(a) terminate its obligation to make any Loans;
(b) declare the principal of all amounts owing under the Loan
Documents, together with all accrued interest thereon and all other amounts
owing in connection therewith, to be immediately due and payable, regardless of
any other specified maturity or due date, without notice of default, presentment
or demand for payment, notice or demand of any kind, and without the necessity
of prior recourse to any security; provided, that any Event of Default with
respect to Borrower described in Sections 6.1(e) or (f) shall automatically,
without declaration or other action on Lender's part, cause all such amounts to
be immediately due and payable without notice or demand;
(c) if the Event of Default may be cured by the payment of money,
Lender may (but shall not be obligated) to make such payment from its own funds;
provided, that the making of such payment by Lender shall not be deemed to cure
such Event of Default, and that the same shall not be cured unless and until
Borrower reimburses Lender for such payment. If Lender advances its own funds
for such purposes, the funds advanced shall be considered advances under the
Note, notwithstanding that such advances may cause the total amount advanced
under this Agreement to exceed the aggregate face amount of the Note or the
amount committed to be advanced pursuant to this Agreement; and
(d) exercise any of its rights under the Loan Documents,
including the right to foreclose on any security, and exercise any other rights
with respect to any security, whether under the Loan Documents or as provided by
law, all in such order and in such manner as Lender in its sole discretion may
determine.
6.3 Cumulative Remedies; No Waiver. Lender's remedies under the Loan
Documents are cumulative and shall be in addition to all rights and remedies
provided by law or in equity from time to time. The exercise by Lender of any
right or remedy shall not constitute a cure or waiver of any default, nor
invalidate any notice of default or any act done pursuant to any such notice,
nor prejudice Lender in the exercise of any other right or remedy. No waiver by
Lender of any default shall be implied from any omission by Lender to take
action on account of such default if such default persists or is repeated. No
express waiver by Lender of any default shall affect any default other than the
default expressly waived, and any such express waiver shall be operative only
for the time and to the extent of any Loan Document shall be construed as a
waiver of any subsequent breach of the same covenant, term or condition.
Lender's consent to or approval of any act by Borrower requiring further consent
or approval shall not be deemed to waive or render unnecessary Lender's consent
to or approval of any subsequent act.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. Any notice, demand or request required under this
Agreement shall be given in writing at the addresses set forth below by personal
service; telecopy; overnight courier; or registered or certified, first class
mail, return receipt requested.
If to Borrower:
Xxxxxxx-Xxxxxx Properties Ltd.
000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxxx
Fax No.: (000) 000-0000
If to Lender:
East-West Bank
000 Xxxxxxxxxx Xxxxx
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxx or Xxxxxxxx Xxxx
Fax No.: (000) 000-0000
Such addresses may be changed by notice to the other parties given in the same
manner as required above. Any notice, demand or request shall be deemed received
as follows: (i) if sent by personal service, at the time such personal service
is effected; (ii) if sent by telecopy, upon the sender's receipt of a
confirmation report generated by the sender's telecopier indicating receipt by
the recipient's telecopier; (iii) if sent by overnight courier, on the business
day immediately following deposit with the overnight courier; and (iv) if sent
by mail, 48 hours following deposit in the mail.
7.2 Governing Law. All questions with respect to the construction of
this Agreement and the rights and liabilities of the parties to this Agreement
shall be governed by the laws of the State of California.
7.3 Binding on Successors. This Agreement shall inure to the benefit
of, and shall be binding upon, the successors and assigns of each of the parties
to this Agreement.
7.4 Attorneys' Fees.
(a) Borrower shall reimburse Lender for all reasonable attorneys'
fees, costs and expenses, incurred by Lender in connection with the enforcement
of Lender's rights under this Agreement and each of the other Loan Documents,
including, without limitation, reasonable attorneys' fees, costs and expenses
for trial, appellate proceedings, out-of-court negotiations, workouts and
settlements or for enforcement of rights under any state or federal statute,
including, without limitation, reasonable attorneys' fees, costs and expenses
incurred to protect Lender's security and attorneys' fees, costs and expenses
incurred in bankruptcy and insolvency proceedings such as (but not limited to)
seeking relief from stay in a bankruptcy proceeding. The term "expenses" means
any expenses incurred by Lender in connection with any of the out-of-court, or
state, federal or bankruptcy proceedings referred to above, including, without
limitation, the fees and expenses of any appraisers, consultants and expert
witnesses retained or consulted by Lender in connection with any such
proceeding.
(b) Lender shall also be entitled to its attorneys' fees, costs
and expenses incurred in any post-judgment proceedings to collect and enforce
the judgment. This provision is separate and several and shall survive the
merger of this Agreement into any judgment on this Agreement.
7.5 Counterparts. This Agreement may be executed in any number of
original counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one instrument. The original
signature page of any counterpart may be detached from such counterpart and
attached to any other counterpart identical to such counterpart (except having
additional signature pages executed by other parties to this Agreement) without
impairing the legal effect of any such signature(s).
7.6 Entire Agreement. This Agreement and the other Loan Documents
constitute the entire agreement and understanding between the parties in respect
of the subject matter of this Agreement and supersede all prior agreements and
understandings with respect to such subject matter, whether oral or written.
7.7 Waivers. Waiver by Lender of any term, covenant or condition under
this Agreement or the Loan Documents, or of any default by Borrower under this
Agreement or the Loan Documents, or any failure by Lender to insist upon strict
performance by Borrower of any term, covenant or condition contained in this
Agreement or the Loan Documents, shall be effective or binding on Lender only if
made in writing by Lender; no such wavier shall be implied from any omission by
Lender to take action with respect to any such term, covenant, condition or
default. No express written waiver by Lender of any term, covenant, condition or
default shall affect any other term, covenant, condition or default or cover any
other time period than the application of any such term, covenant or condition
to the matter as to which a waiver has been given or the default or time period
specified in such express waiver. This Agreement may be amended only by an
instrument in writing signed by the parties to this Agreement.
7.8 Severability. If any part of this Agreement is declared invalid
for any reason, such shall not affect the validity of the rest of the Agreement.
The other parts of this Agreement shall remain in effect as if this Agreement
had been executed without the invalid part. The parties declare that they intend
and desire that the remaining parts of this Agreement continue to be effective
without any part or parts that have been declared invalid.
7.9 Expenses. Borrower shall pay promptly all costs, charges, and
expenses incurred by Lender in connection with the Loans, including, without
limitation, commitment fees, loan fees, service charges, title charges, tax and
lien service charges, costs of inspection, costs of consulting engineers,
recording fees, processing fees, appraisal fees, attorneys' fees, real property
taxes and assessments and insurance premiums, and any fees in consideration of
Lender's commitment to provide the Loan.
EAST-WEST BANK, a California banking corporation
By:
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Xxxxxxxx Xxxx, Vice President
XXXXXXX-XXXXXX PROPERTIES LTD., an Illinois corporation
By:
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Xxxxxxx Xxxx, Chief Financial Officer
EXHIBIT A
FORM OF CERTIFICATION FOR LOAN REQUEST
Xxxxxxx-Xxxxxx Properties Ltd. ("Borrower") certifies as follows to
East-West Bank ("Lender") pursuant to Section 2.1 of the Loan Agreement dated as
of July 28, 1998 between Borrower and Lender (the "Loan Agreement"), with the
understanding that Lender is relying on this certification in determining
whether to make a "Loan" (as defined in the Loan Agreement) to Borrower:
1. No Event of Default or any Potential Event of Default has occurred
and is continuing;
2. The representations and warranties contained in the Loan Agreement
are or will be true on the date on which the requested Loan is to be made; and
3. The aggregate amount of all Loans outstanding (including the amount
of the Loan being requested) does not exceed $1,000,000.
All capitalized terms used in this Certificate without definition are
used as defined in the Loan Agreement.
Date: _________
XXXXXXX-XXXXXX PROPERTIES LTD., an
Illinois corporation
By:
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