EXHIBIT 10.15
Amended and Restated
Bank of America Business Loan Agreement
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This Amended and Restated Business Loan Agreement dated to be effective
February 28, 1997, is between BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, successor by merger to Bank of America Nevada, (referred to
hereinafter as the "Bank") and TJ SYSTEMS CORPORATION, a Delaware
corporation C'TJS") and TJ COMPUTER SERVICES, INC., a Delaware corporation
C'TJCS"). TJS and TJCS are sometimes refer-red to hereinafter individually
as the "Borrower" and collectively as the "Borrowers".
RECITALS
A. Borrowers' business consists of acquiring new computer and
telecommunications equipment ("Leased Equipment") for lease to unaffiliated
third parties ("Lessees"), creating equipment leases ("Equipment Leases")
between Borrowers, as lessor, and such Lessees for the Leased Equipment.
From time to time, Borrowers will assign such Equipment Leases ("Lease
Assignments") to other unaffiliated third party investors ("Assignees") for
negotiated fees ("Assignment Fees"). Pursuant to said Lease Assignments,
Borrowers retain title to the Leased Equipment and grants to said Assignee
a security interest in said Leased Equipment.
B. Bank and Borrowers are parties to that certain Business Loan Agreement
dated as of July I 1, 1995 (the "Original Loan Agreement"), which
established a revolving line of credit in the original maximum principal
amount of Two Million Five Hundred Thousand and No/100 Dollars
($2,500,000.00) (the "Loan"). The Original Loan Agreement was subsequently
modified on December 6, 1995, December 11, 1995, March 10, 1996, July 1,
1996, and August 15, 1996. Capitalized terms used herein without
definition shall have the same meanings given in the Original Loan
Agreement.
C. In connection with the Loan, TJS and TJCS each executed a Security
Agreement dated July 11, 1995, in favor of Bank, granting to Bank
collateral defined therein (the "Security Agreement").
D. In connection with the Loan, TJS executed Uniform Commercial Code
Financing Statements on Form XXX- 0 xxxxx Xxxx 00, 0000, (x) filed in the
office of the Secretary of State- of the State of Nevada on July 28, 1995,
as Filing No. 9510581, (b) filed in the office of the Secretary of State of
the State of New York on July 31, 1995, as Filing No. 154451, and (c)
recorded in the Official Records of Xxxxx County, Nevada on August 9, 1995,
in Book Xx. 000000, Xxxxxxxxxx Xx. 00000; and (ii) TJCS executed Uniform
Commercial Code Financing Statements on Form XXX- 0 xxxxx Xxxx 00, 0000,
(x) filed in the office of the Secretary of State of the State of Nevada on
July 28, 1995, as Filing No. 9510582, (b) filed in the office of the
Secretary of State of the State of New York on July 31, 1995, as Filing No.
154452, and (c) recorded in the Official Records' of Xxxxx County, Nevada
on August 9, 1995, in Book No.950809, Instrument No. 0 1432 (collectively,
the "UCCs").
E. In connection with the Loan, Bank and IBM CREDIT CORPORATION ("IBM
Credit") entered into that certain Intercreditor and Subordination
Agreement made as of July 20, 1995, whereby IBM Credit agreed to
subordinate certain of its security interests to the security interests of
Bank under the Loan.
F. All of the documents certificates or agreements executed in connection
with the Loan, including, without limitation, those listed above and those
which evidence, guaranty, secure or modify the Loan, as any or all of them
may have been amended or modified to date, shall hereinafter be
collectively referred to as the "Existing Loan Documents". This Amended
and Restated Business Loan Agreement (the "Agreement"), all other documents
executed in connection with this Agreement, and the Existing Loan
Documents, as modified hereby, are herein collectively referred to as the
"Loan Documents".
G. The Loan matured on October 31, 1996, and since then Bank has been
forbearing on a day to day basis.
H. As of February 28, 1997, Borrowers were indebted to Bank under the
Existing Loan Documents in the principal amount of Two Million Four Hundred
Seventy-Six Thousand Three Hundred Sixty-Five and
No/l00 Dollars ($2,476,3 65.00), plus accrued and unpaid interest of
Nineteen Thousand Seven Hundred Forty-Two and 13/100 Dollars ($19,742.13)
(collectively, the "Present Debt'), which Present Debt is which Present
Debt is due and payable to Bank without offset, counterclaim or any defense
of any kind or nature. This principal balance is calculated without regard
to any principal payments which are required under this Agreement.
I. Borrowers have requested that Bank modify the Loan as set forth below.
Bank, although under no obligation to do so, is willing to so modify the
Loan, subject to the terms and conditions set forth below.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Accuracy of Recitals. Borrowers acknowledge that the Recitals set forth
above are true, accurate and correct, and such recitals are incorporated
herein by this reference.
2. Reaffirmation of Loan. Borrowers reaffirm all of their obligations
under the Loan Documents, and Borrowers acknowledge that they have no
claims, offsets, or defenses with respect to the payment of sums due under
the Loan or any Loan Document.
3. Modification of Loan Documents. The Loan Documents are hereby amended as
follows:
3.1 Maturity Date. The maturity date of the Loan is hereby extended to
August 30, 1997 (the "1997 Maturity Date'). All sums owing under the Loan
shall be due and payable no later than this extended maturity date.
3.2 Extension of Maturity Date. Borrowers may exercise the option to
extend the maturity of the Loan from the 1997 Maturity Date until January
1, 1998 (the "1998 Maturity Date"), if (a) Borrowers request this extension
in a written notice which shall be delivered to Bank between sixty (60) and
thirty (30) days before the 1997 Maturity Date; and (b) prior to the 1997
Maturity Date, Borrowers satisfy all of the terms and conditions set forth
in Section 3.3 of this Agreement, and if no Event of Default exists under
the Loan Documents, in a manner satisfactory to Bank in its sole and
absolute discretion and judgment. If the Loan is extended beyond the 1997
Maturity Date to the 1998 Maturity Date, Borrowers shall pay to Bank any
remaining unpaid principal balance and accrued and unpaid interest and any
other fees and expenses due under the Loan no later than the 1998 Maturity
Date.
3.3 Conditions to Extension of Maturity Date. Borrowers' right to
exercise the option to extend the Loan to the 1998 Maturity Date as
described in Section 3.2 of this Agreement, is subject to the following
conditions:
(a) Good Condition and Repair. Bank shall have been satisfied that all of
the collateral has been well maintained and is in good repair;
(b) No Default. There shall exist no default or event that, with notice of
the passage of time or both, would be an Event of Default under any of the
Loan Documents, including without limitation this Agreement. There shall
have been no material adverse change in any Borrower's financial condition,
or event or condition that materially impairs any Borrower's ability to
repay the Loan;
(c) Required Principal Reductions. Bank shall have received, in immediately
available funds, principal reductions in the amounts stated below no later
than the dates listed below:
Date Due Principal Reduction
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May 15, 1997 $ 30,000.00
June 15, 1997 $ 40,000.00
July 15, 1997 $ 55,000.00
August 15 1997 $125,000.00
These principal reductions shall be in addition to scheduled principal
payments listed. In Section 3.7 or Section 8.24 of this Agreement, and
shall be applied to the most remote payment of principal due under this
Agreement.
(d) Extension Fee for the 1998 Maturity Date. Bank shall have received, in
immediately available funds, an extension fee in the amount of Ten Thousand
and No/100 Dollars, no later than May 15, 1997.
3.4 Failure to Satisfy Condition. If any of the conditions listed in
Section 3.3 of this Agreement have not been satisfied in a manner
acceptable to Bank in the exercise of Bank's sole judgment and discretion,
Bank, in its sole discretion, may require
payment in full of all principal, interest, fees and expenses under the
Loan and the Loan Documents on the 1997 Maturity Date, and not grant the
extension of the Loan to the 1998 Maturity Date.
3.5 Interest Rate.
(a) Effective February 28, 1997, interest shall accrue on the unpaid
principal balance of the Loan at an annual interest rate equal to the
Reference Rate in effect from time to time plus two hundred (200) basis
points; and
(b) effective April 1, 1997, the interest rate shall accrue on the unpaid
principal balance of the Loan at an increased annual interest rate equal to
the Reference Rate in effect from time to time plus four hundred (400)
basis points (the "Interest Rate").
The Reference Rate is 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 by Bank based on various factors, including its costs
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 date
specified in the public announcement of a change in the Reference Rate.
3.6 Interest Calculation. Except as otherwise stated in this Agreement,
all interest and fees, if any, will be computed on the basis of a 360-day
year and the actual number of days elapsed. This results in more interest
or a higher fee than if a 365-day year is used.
3.7 Payment. Concurrently with the execution of this Agreement, an initial
principal reduction in the amount of One Hundred Eighty Thousand and No/100
Dollars ($180,000.00) shall be due and payable. Beginning March 15, 1997,
installments of principal, each in the amount specified below for the due
date specified below, shall be due and payable on the fifteenth (15th) day
of each month, plus interest accrued through the last day of the
immediately preceding month on the then outstanding principal balance at
the applicable Interest Rate in effect pursuant to Section 3.3 (c) of this
Agreement. The principal payment schedules listed below do not include the
principal reductions required under Section 3.3-W or Section 8.24 of this
Agreement.
Date Due Principal Payment
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Upon execution of this Agreement $ 180,000.00
March 15, 1997 $ 40,000.00
April 15, 1997 $ 40,000.00
May 15, 1997 $ 60,000.00
June 15, 1997 $ 60,000.00
July 15, 1997 $ 60,000.00
August 15, 1997 $ 60,000.00
September 15, 1997 $ 80,000.00
October 15, 1997 $ 80,000.00
November 15, 1997 $ 80,000.00
December 15, 1997 $ 120,000.00
January 1, 1998 all remaining unpaid
principal, accrued and
unpaid interest, and
any unpaid fees and
expenses
The principal payment schedule listed above shall be in effect if Bank
agrees to extend the Loan is extended to the 1998 Maturity Date. If Bank
does not agree to extend the Loan to the 1998 Maturity Date, the principal
payments due concurrently with the execution of this Agreement and on March
15, 1997, April 15, 1997, May 15, 1997, June 15, 1997, July 15, 1997, and
August 15, 1997, shall be due as stated in this Section 3.7, and all
remaining unpaid principal, accrued and unpaid interest, and any unpaid
fees and expenses shall be due no later than the 1997 Maturity Date.
3.8 Term Loan. Borrowers acknowledge that: (a) the Loan is modified to be
a non-revolving term loan; (b) Bank has no obligation to make any
additional advances on the Loan; and (c) any principal payments shall be
applied to the Loan as a permanent principal reduction and shall not be
available for readvance by Borrowers.
3.9 Bank of America Address. All addresses of Bank in the Loan
Documents are amended to read:
Bank of America National Trust & Savings Association
Dept. No. 4934, Attn.: Xxxx X. Xxxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx, 00000
Any notices to the Bank under any of the Loan Documents shall be sent to
this address (or any other address later specified by Bank) certified mail,
return receipt requested.
4. Conditions Precedent. Before this Agreement becomes effective and any
party becomes obligated under it, all of the following conditions shall
have been satisfied at Borrowers' sole cost and expense in a manner
acceptable to Bank in the exercise of Bank's sole judgment and discretion:
(a) Bank shall have received fully executed, and where appropriate,
acknowledged originals this Agreement and any other documents which Bank
may require or request in accordance with this Agreement or the other Loan
Documents.
(b) Bank shall have received, in immediately available funds, a fully
earned and nonrefundable extension fee in the amount of Five Thousand and
No/100 Dollars ($5,000.00).
(c) Bank shall have received, in immediately available funds, the initial
principal reduction required under Section 3.7 of this Agreement in the
amount of One Hundred Eighty Thousand and No/I 00 Dollars ($180,000.00).
(d) Bank shall have received reimbursement, in immediately available
funds, of all costs and expenses incurred by Bank in connection with this
Agreement, including charges for title insurance (including endorsements),
recording, filing, and escrow charges, fees for appraisal, architectural
and engineering review, construction services and environmental services,
mortgage taxes, and legal fees, costs and expenses of Bank's counsel.
Borrowers acknowledge that any extension fees payable in connection with
this transaction does not include the amounts payable by Borrowers under
this Section 4 (d) or under Section 6.8 of this Agreement.
(e) Bank shall have received a copy of each Borrower's articles of
incorporation, bylaws and any amendments thereto.
(f) Evidence of insurance coverage, as required in Section 8.18 of this
Agreement.
(g) Any other items that Bank may reasonably require.
5. Collateral; Audits of Collateral.
5.1 Personal Property. Borrowers' obligations to Bank under this
Agreement will be secured by personal property Borrowers now own or will
own in the future as listed below. The collateral is further defined in
the Security Agreements. In addition, personal property collateral
securing the Loan shall also secure all other present and future
obligations.of Borrowers or any one of them to Bank (excluding consumer
credit covered by the federal Trust in Lending law, unless Borrowers have
otherwise agreed in writing). All personal property collateral securing
any other present or future obligations of Borrowers or any one of them to
Bank shall also secure the Loan.
(a) Machinery, equipment, and furniture, including Leased Equipment,
provided such Leased Equipment may be subject to the terms of Equipment
Leases and security interests in favor of Assignees.
(b) Inventory.
(c) Receivables (including accounts receivable due on Leased Equipment
subject to third party assignments), patents, trademarks and other general
intangibles.
5.2 Ownership. Borrowers lawfully possess and hold a 100% ownership
interest in all of the collateral for the Loan, free and clear of any
defects, reservations of title and conditional sales contracts, and also of
any security interests other than those in favor of Bank, other than those
previously approved by Bank in writing. There is no financing statement
affecting any collateral for the Loan on file in any public office except
for financing statements in favor of Bank, other than those previously
approved by Bank in writing.
5.3 Access to Properly, Books and Records. Borrowers shall allow Bank to
examine, copy and audit its books and records. Any site visit, observation
or examination by Bank shall be solely for the purpose of protecting Bank's
security and preserving Bank's rights under the Loan Documents. Bank owes
no duty of care to protect Borrowers or any other party against, or to
inform Borrowers or any other party of, any adverse condition affecting the
Loan, the collateral for the Loan, or Borrowers' ability to repay the Loan.
If any of the Borrowers' properties, books or records are in the possession
of a third party, Borrowers authorize the Bank or its agents to have access
to perform inspections or audits and to respond to the Bank's requests for
information concerning such properties, books and records.
5.4 Bank Use Only. Borrowers acknowledge that any inspections, audits or
evaluations performed by Bank of the collateral securing the Loan pursuant
to this Agreement (a) are solely for Bank's use in evaluating and
underwriting an existing or proposed transaction in Bank's capacity as an
existing or proposed lender, and (b) shall not be relied upon by any person
or entity, including, without limitation, any Borrower, other than Bank.
Bank makes no express or implied representation or warranty of any kind
with respect to such inspection, audit or evaluation of the collateral.
Bank expressly disclaims any liability to any person or entity, including,
without limitation, any Borrower, with respect to such inspections, audits
or evaluations.
6. Payments and Costs.
6.1 Telephone Authorization. Bank may honor telephone instructions for
repayments given by any one of the individuals authorized to sign loan
agreements on behalf of Borrowers, or any other individual designated in
writing by any one of such authorized signers. Borrowers indemnify and
excuse Bank (including its officers employees, and agents) from all
liability, loss, and costs in connection with any act resulting from
telephone instructions it reasonably believes are made by any individual
authorized by Borrowers to give such instructions. This indemnity and
excuse will survive this Agreement's termination.
6.2 Direct Debit.
(a) Borrowers agree that interest and principal payments and any fees will
be deducted automatically on the due date from Borrowers' account number
[ ], or such other of Borrowers' accounts with Bank as designated
in writing by Borrowers (the "Designated Account").
(b) Bank will debit the Designated Account on the dates the payments become
due. If a Due date does not fall on a Banking Day, as defined below, Bank
will debit the Designated Account on the first Banking Day following the
due date.
(c) Borrowers will maintain sufficient funds in the Designated Account on
the dates Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date Bank enters any debit
authorized by this Agreement, the debit will be reversed.
6.3 Banking Days. Unless otherwise provided in this Agreement, a banking
day is a day other than a Saturday or a Sunday on which Bank is open for
business in Nevada. All payments and disbursements which would be due on a
day which is not a banking day will be due on the next banking day. All
payments received on a day which is not a banking day will be applied to
the credit on the next banking day.
6.4 Taxes. Borrowers will not deduct any taxes from any payments it makes
to Bank. If any government authority imposes any taxes on any payments
made by Borrowers, Borrowers will pay the taxes and will also pay to Bank,
at the time interest is paid, any additional amount which Bank specifies as
necessary to preserve the after-tax yield Bank would have received if such
taxes had not been imposed. Upon request by Bank, Borrowers will confirm
that it has paid the taxes by giving Bank official tax receipts (or
notarized copies) within thirty (30) days after the due date. However,
Borrowers will not pay Bank's net income taxes.
(6.5) Prepayment. Borrowers may prepay the Loan in full or in part at any
time. The prepayment will be applied to the most remote payment of
principal due under this Agreement.
6.6 Late Charge on Late Payments. In the event any payment required
hereunder is received by Bank fifteen (15) days after its due date,
Borrowers agree to pay to Bank a late charge of five percent (5.00%) of
each overdue payment (whether the overdue payment is a payment of interest
only or a payment consisting of principal and interest). Borrowers will
pay this late charge only once on any late payment.
6.7 Default Rate. Upon the occurrence and during the continuation of any
default under this Agreement or any of the Loan Documents, advances under
this Agreement will, at the option of Bank, bear interest at a rate per
annum which is two hundred (200) basis points higher than the rate of
interest otherwise provided under this Agreement. This will not constitute
a waiver of any default.
6.8 Expenses and Costs. Borrowers agree to reimburse Bank, immediately
upon written request of Bank, in immediately available funds.
(a) Audit Expense. Bank's cost of periodic audits and appraisals of the
personal property collateral securing the Loan, at such intervals as Bank
may reasonably require, immediately upon written request of Bank. The
audits and appraisals may be performed by employees of Bank or by
independent appraisers.
(b) Administration Costs. All reasonable costs incurred by Bank in
connection with administering this Agreement.
7. Borrowers' Representations and Warranties. Borrowers represent and
warrant to Bank as follows:
7.1 Loan Documents. All representations and warranties made and given by
Borrowers in the Loan Documents are true, complete, accurate and correct.
7.2 Borrowing Entity. Each Borrower is a Delaware corporation, which is
duly organized, validly existing and in good standing under the laws of the
State of Delaware. There have been no changes in the organization,
composition, ownership, structure or formation documents of Borrowers since
the inception of the Loan. In each state in which each Borrower does
business, it is properly licensed, in good standing, and, where required,
in compliance with fictitious name statutes.
7.3 Enforceable Loan Documents. The Loan Documents, including this
Agreement, to which Borrowers are a party are legal, valid and binding,
agreements of Borrowers enforceable in accordance with their respective
terms, and any instrument or agreement required hereunder or thereunder,
when executed and delivered, will be similarly legal, valid, binding and
enforceable.
7.4 No Conflicts. This Agreement does not conflict with any law,
agreement, or obligation by which any Borrower is bound.
7.5 Financial Information. All financial and other information that has
been or will be supplied to Bank is: (a) sufficiently complete to give Bank
accurate knowledge of each Borrower's financial condition; (b) in form and
content required by Bank and in accordance with Generally Accepted
Accounting Practices ("GAAP"); and (c) in compliance with all applicable
government regulations. No material adverse change has occurred in the
business assets, or financial condition of Borrowers since Borrowers last
supplied financial statements or information to Bank.
7.6 Lawsuits. There is no lawsuit, tax claim or other dispute pending or
threatened against any Borrower, which, if lost, would impair Borrowers'
financial condition or ability to repay the Loan, except as have been
disclosed in writing to Bank prior to this Agreement.
7.7 Permits, Franchises. Borrowers possess all permits, memberships,
franchises, contracts, and licenses required and all trademark rights,
trade name rights, patent rights, and fictitious name rights necessary to
enable it to conduct the business in which it is now engaged without
conflict with the rights of others.
7.8 Other Obligations. Borrowers are not in default on any obligation for
borrowed money, any purchase money obligation or any other material lease,
commitment, contract, instrument or obligation.
7.9 Income Tax Returns. Borrowers have no knowledge or any pending
assessments or adjustments of its income tax for any year.
7.10 No Default. No Event of Default has occurred and is continuing, and
no event has occurred and is continuing which, with notice or the passage
of time or both, would be an Event of Default.
7.11 No Claims or Defenses. The Present Debt is due and payable to Bank,
and Borrowers have no claims, offsets, counterclaims or defenses with
respect to: (a) the payment of the Present Debt; (b) the payment or any
other sums due under the Loan Documents; (c) the performance of Borrowers'
obligations under the Loan Documents; or (d) any liability under any of the
Loan Documents.
7.12 Claims, Disputes, Impairments. Borrowers have no pending
litigation, tax claims, proceedings or disputes that may adversely affect
Borrowers' financial condition or impair Borrowers' ability to perform
under the Loan Documents.
7.13 ERISA Plans.
(a) Borrowers have fulfilled their obligations, if any, under the minimum
funding standards of ERISA and the Code with respect to each Plan and is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and has not incurred any liability with
respect to any Plan under Title IV of ERISA.
(b) No reportable event has occurred under Section 4043(b) of ERISA for
which the PBGC requires thirty (30) days' notice.
(c) No action by Borrowers to terminate or withdraw from any Plan has been
taken and no notice of intent to terminate a Plan has been filed under
Section 4041 of ERISA.
(d) No proceeding has been commenced with respect to a Plan under Section
4042 of ERISA, and no event has occurred or condition exists which might
constitute grounds for the commencement of such a proceeding.
(e) The following terms have the meanings indicated for purposes of this
Agreement:
(i) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(ii) "ERISA" means the Employee Retirement Income Act of 1974, as
amended from time to time.
(iii) "PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
(iv) "Plan" means any employee pension benefit plan maintained or
contributed to by the Borrower and insured by the Pension Benefit Guaranty
Corporation under Title IV of ERISA.
7.14 Location of Borrower. Borrowers' place of business (or, if Borrowers
have more than one place of business, its chief executive office) is
located at the address listed under Borrowers' signature on this Agreement.
8. Covenants. Borrowers agree, so long as credit is available under this
Agreement and until Bank is repaid in full:
8.1 Use of Proceeds. To use the proceeds of the credit only for working
capital.
8.2 Financial Information. To provide the following financial information
and statements and such additional information as requested by Bank from
time to time:
(a) Within 120 days of each calendar year end, Borrowers' annual financial
statements for the immediately preceding calendar year, including
Borrowers' Form 10-KSB. These financial statements must be prepared by a
Certified Public Accountant ("CPA") acceptable to Bank. The statements
shall be prepared on a consolidated basis.
(b) Within 60 days of each calendar quarter end, Borrowers' Quarterly
financial statements for the immediately preceding calendar quarter,
including Borrowers' Form 10-QSB. These statements may be internally
prepared. The statements shall be prepared on a consolidated basis.
(c) Promptly upon Bank's request, such other statements, lists of property
and accounts, budgets, forecasts or reports of Borrowers as Bank may
reasonably request from time to time.
8.3 Tangible Net Worth. To maintain on a consolidated basis Tangible Net
Worth equal to at least Four Million Five Hundred Thousand and No/100
Dollars ($4,500,000.00), to be measured on a quarterly basis. Patents,
trademarks, trade names, organization expense, treasury stock, unamortized
debt discount and expense, deferred research and development costs,
deferred marketing expenses, and other like intangibles) less total
liabilities, including but not limited to accrued and deferred income
taxes, and any reserves against assets.
8.4 Equipment Leases in Default. Not to have more than Five Hundred
Thousand and No/100 Dollars ($500,000.00) in the aggregate of Equipment
Leases in default at any time.
8.5 Other Debts. Not to have outstanding or incur any direct or contingent
debts (other than those to Bank), or become liable for the debts of others
without Bank's written consent. This does not prohibit:
(a) Acquiring goods, supplies or merchandise on normal trade credit.
(b) Endorsing negotiable instruments received in the usual course of
business.
(c) Obtaining surety bonds in the usual course of business.
(d) Additional debts for the acquisition of fixed or capital assets, to
the extent permitted elsewhere in this Agreement.
(e) Additional debts and lease obligations for business purposes which do
not exceed a total principal amount of One Million and No/100 Dollars
($1,000,000.00) outstanding at any one time.
8.6 Other Liens. Not to create, assume, or allow any security interest or
lien (including judicial liens) on property Borrowers now or later own,
except:
(a) Deeds of trust and security agreements in favor of Bank.
(b) Liens for taxes not yet due.
(c) Liens outstanding on the date of this Agreement disclosed in writing to
Bank.
(d) Additional purchase money security interests if the total principal
amount of debts secured by such liens does not exceed Two Hundred Thousand
and No/100 Dollars ($200,000.00) at any one time.
(e) Liens created through assignment of Equipment Lease stream revenues to
third-party lenders.
8.7 Dividends. Not to declare or pay any dividends on any of its shares,
except:
(a) dividends payable on its preferred stock;
(b) from earnings available for dividends and earned during the
immediately preceding fiscal year, and in any event, not in
excess of Two Hundred Thirty Thousand and No/100 Dollars($230,000.00) in
any one fiscal year;
(c) in an amount in each fiscal year sufficient to cover the federal and
state income tax liabilities of Borrowers' shareholder's for the
preceding fiscal year arising as a direct result of Borrowers'
reported income tax for such fiscal year.
8.8 Loans to Officers. Not to make any loans, advances or other extensions
of credit to any of Borrowers' executives, officers, directors or
shareholders (or any relatives of any of the foregoing) in excess of Thirty
Thousand and No/100 Dollars ($30,000.00) in the aggregate.
8.9 Change of Ownership. Not to cause, permit, or suffer any change,
direct or indirect, in Borrowers' capital ownership, except between
existing shareholders.
8.10 Notices to Bank. To promptly notify Bank in writing of:
(a) any lawsuit over Two Hundred Thousand and No/100 Dollars ($200,000.00)
against any Borrower.
(b) any substantial dispute between any Borrower and any government
authority.
(c) any failure to comply with this Agreement.
(d) any material adverse change in any Borrower's financial condition or
operations.
(e) any change in any Borrower's name, legal structure, place of business,
or chief executive office if said Borrower has more than one place of
business.
8.11 Books and Records. To maintain adequate books and records.
8.12 Audits. To allow Bank and its agents to inspect Borrowers' properties
and examine, audit, and make copies of books and records at any reasonable
time. If any of Borrowers' properties, books or records are in the
possession of a third party, Borrowers authorize that third party to permit
Bank or its agents to have access to perform inspections or audits and to
respond to Bank's requests for information concerning such properties,
books and records.
8.13 Compliance with Laws. To comply with the laws (including any
fictitious name statute), regulations, and orders of any government body
with authority over Borrower's business.
8.14 Preservation of Rights. To maintain and preserve all rights,
privileges and franchises Borrowers now have.
8.15 Maintenance of Properties. To make any repairs, renewals, or
replacements to keep Borrowers' properties in good working condition.
8.16 Perfection of Liens. To help Bank perfect and protect its security
interests and liens, and reimburse it for related costs it incurs to
protect its security interests and liens.
8.17 Cooperation. To take any action requested by Bank to carry out the
intent of this Agreement.
8.18 Insurance.
(a) Insurance Covering Collateral. To maintain all risk property damage
insurance policies covering the tangible property comprising the
collateral. Each insurance policy must be in an amount acceptable to Bank.
The insurance must be issued by an insurance company acceptable to the Bank
and must include a lender's loss payable endorsement in favor of Bank in a
form acceptable to Bank.
(b) General Business Insurance. To maintain insurance satisfactory to Bank
as to amount, nature and carrier covering property damage (including loss
of use and occupancy) to any of Borrowers' properties, public liability
insurance, including coverage for contractual liability, product liability
and workers' compensation, and any other insurance which is usual for
Borrowers' business.
(c) Evidence of Insurance. To deliver to Bank, upon the request of Bank,
a copy of each insurance policy, or, if permitted by Bank, a certificate of
insurance listing all insurance in force.
8.19 Additional Negative Covenants. Not to, without Bank's written
consent:
(a) engage in any business activities substantially different from
Borrowers' present business.
(b) liquidate or dissolve any Borrower's business.
(c) enter into any consolidation, merger, pool, joint venture, syndicate or
other combination.
(d) lease, or dispose of all or a substantial part of any Borrower's
business or assets except in the ordinary course of Borrowers' business.
(e) Acquire or purchase a business or its assets.
(f) sell or otherwise dispose of any assets for less than fair market value
or enter into any sale and leaseback agreement covering any of its fixed or
capital assets.
8.20 Transfer of Assets to a Trust. Not to transfer any of Borrowers'
assets to a trust unless (a) the trust agreement governing the trust to
which the assets are to be transferred has been reviewed by Bank and Bank
has determined in its sole discretion that such transfer will not be
adverse to Bank's interest; and (b) the trustee of such trust issues a
guaranty of payment in favor of Bank for the Loan and all of Borrowers'
obligations under the Loan Documents in such form as is acceptable to Bank
in its sole discretion.
8.21 ERISA Plans. To give prompt written notice to Bank of-
(a) the occurrence of any reportable event under Section 4043(b) of ERISA
for which the PBGC requires thirty (30) days' notice.
(b) any action by Borrowers to terminate or withdraw from a Plan or the
filing of any notice of intent to terminate under Section 4041(b) of ERISA.
(c) any notice of noncompliance made with respect to a Plan under Section
4041(b) of ERISA.
(d) The commencement of any proceeding with respect to a Plan under
Section 4041 of ERISA.
8.22 Ratio of Residual Value to Unfinanced Capital Expenditures. The ratio
of cash received from residual value of Leased Equipment liquidations at
scheduled Equipment Lease maturities to Unfinanced Capital Expenditures may
not be less than 2.00:1.00 on a quarterly basis. This ratio shall be
tested at the end of each calendar quarter for the immediately preceding
quarter, by dividing the sum of actual cash received from the liquidation
or sale of Leased Equipment sold at Equipment Lease maturities during the
immediately preceding calendar quarter, per Borrowers' current Form 10-QSB,
or Form 10-KSB, as applicable, by the sum of the calculated Unfinanced
Capital Expenditures.
"Unfinanced Capital Expenditures" means the total cost of Leased Equipment
purchases, less the proceeds from discounted Equipment Lease rentals.
8.23 Adjusted EBITDA Debt Coverage Ratio. To maintain on a consolidated
basis an Adjusted EBITDA Debt Coverage Ratio of at least 1.0:1.0. This
ratio will be calculated at the end of each fiscal quarter, using the
prorated current portion of lease payments due on assigned non-recourse
discounted operating leases.
"Adjusted EBITDA Debt Coverage Ratio" means the ratio of Adjusted EBITDA to
the sum of the current portion of long term debt plus (a) the current
portion of lease payments due on assigned non-recourse discounted operating
lease, plus (b) non-lease related interest expense, plus (e) dividends.
"Adjusted EBITDA" means the sum of operating income plus (a) operating
lease depreciation, plus (b) operating lease interest.
8.24 New Equity Investments. To pay to Bank twenty-five percent (25%) of
net proceeds from new equity investments within ninety (90) days of
Borrowers' receipt of said investments, to be applied as principal
reductions to the Loan. Such principal reductions shall be in addition to
any other payments required under this Agreement. and shall be applied to
the most remote payment of principal due under this Agreement.
9. Hazardous Waste Indemnification. Each Borrower will indemnify and hold
Bank harmless from any loss or liability directly or indirectly arising out
of the use, generation, manufacture, production, storage, release,
threatened release, discharge, disposal or presence of a hazardous
substance. This indemnity will apply whether the hazardous substance is
on, under or about each Borrower's property or operations or property
leased to each Borrower. The indemnity includes but is not limited to
attorneys' fees (including the reasonable estimate of the allocated cost of
in-house counsel and staff). The indemnity extends to Bank, its parent,
subsidiaries and all of their directors, officers, employees, agents,
successors, attorneys, and assigns. For these purposes, the term
"hazardous" or "toxic" means any substance which is or becomes designated
as "hazardous" or "toxic" under any federal, state, or local law. This
indemnity will survive repayment of Borrowers' obligations to Bank.
10. Events of Default. Notwithstanding any provision of the Loan
Documents, from and after the date of this Agreement, the following shall
constitute "Events of Default":
10.1 Failure to Pay. Borrowers fail to make a payment when due under: (a)
this Agreement; (b) any of the other Loan Documents; or (c) any other
agreement any Borrower has with Bank or any affiliate of Bank.
10.2 Non-Compliance. Borrowers fail to meet the conditions of, or fail to
perform, any obligation under: (a) this Agreement; (b) any of the other
Loan Documents; or (c) any other agreement any Borrower has with Bank or
any affiliate of Bank.
10.3 Cross-Default. Any default occurs under any agreement in connection
with any credit any Borrower has obtained from anyone else or which any
Borrower has guaranteed.
10.4 Lien Priority. Bank fails to have an enforceable first lien on all
property given as collateral for the Loan.
10.5 False Information. Borrowers or any officer, authorized agent or
accountant of Borrowers have given Bank false, incomplete or misleading
information or representations.
10.6 Death. If any principal officer or majority shareholder of any
Borrower dies.
10.7 Bankruptcy. Any Borrower files a bankruptcy petition, a bankruptcy
petition is filed against any Borrower, or any Borrower makes a general
assignment for the benefit of creditors.
10.8 Receivers. A receiver or similar official is appointed for any
Borrower's business, or the business of any Borrower is terminated.
10.9 Lawsuits. Any lawsuit or lawsuits are filed against Borrowers in an
aggregate amount of Two Hundred Thousand and No/100 Dollars ($200,000.00).
10.10 Judgments. Any judgments or arbitration awards are entered against
any Borrower, or any Borrower enters into any settlement agreements with
respect to any litigation or arbitration, in, an aggregate amount of Two
Hundred Thousand and No/100 Dollars ($200,000.00).
10.11 Government Action. Any governmental authority takes action that Bank
reasonably believes materially adversely affects Borrowers' financial
condition or ability to repay the Loan or perform pursuant to any of the
Loan Documents.
10.12 Default under Related Agreements. Any subordination agreement,
security agreement, deed of trust, or other document required by the Loan
Documents is violated or no longer in effect.
10.13 Other Breach under Agreement. Any Borrower fails to meet the
conditions of, or fails to perform any obligation under, any terms of this
Agreement not specifically referred to in this Article.
10.14 Dissolution or Liquidation. Any Borrower dissolves or liquidates, or
if Borrower is a trust, the trust is revoked or materially modified or
there is a change or substitution of the trustee.
10.15 Material Adverse Change. A material adverse change occurs in: (a)
the financial condition of Borrowers; (b) the value of the collateral; (c)
the ability of Borrowers to repay the Loan; (d) the control or ownership of
Borrowers; or (e) the operations or business of Borrowers.
10.16 ERISA Plans. The occurrence of any one or more of the following
events with respect to Borrowers, provided such event or events could
reasonably be expected, in the judgment of Bank, to subject Borrowers to
any tax, penalty or liability (or any combination of the foregoing) which,
in the aggregate, could have a material adverse effect on the financial
condition of Borrowers with respect to a Plan:
(a) A reportable event with respect to a Plan which is, in the reasonable
judgment of Bank, likely to result in the termination of such Plan for
purposes of Title IV of ERISA.
(b) Any plan termination (or commencement of any proceeding to terminate a
Plan) or Borrowers' full or partial withdrawal from a Plan.
If any of the foregoing Events of Default occur, Bank may do any one or
more of the following, in Bank's sole and absolute discretion: declare
Borrowers in default, require Borrowers to repay Borrowers' entire debt
immediately and without prior notice, collect interest at the default
interest rate contained in the Note from the date of default without
accelerating the payments or exercising any other remedies, and exercise
any and all of Bank's rights, powers and remedies under any of the Loan
Documents, including this Agreement, or otherwise available at law or in
equity. If a bankruptcy petition is filed with respect to any Borrower,
the entire debt outstanding under this Agreement will automatically be due
and payable immediately. Borrowers shall have fifteen (I 5) days, from
receipt of written notice of an Event of Default, to cure the default.
11. Borrowers Acknowledgments. Borrowers hereby acknowledge and agree
that:
11.1 No Breach By Bank. Bank (including all its predecessors) has not
breached any duty to any Borrower in connection with the Loan, and Bank
(including all its predecessors) has fully performed all obligations it may
have had or now has to Borrowers.
11.2 Interest and Other Charges. All interest or other fees or charges
heretofore imposed, accrued or collected by Bank (including all its
predecessors) under the Loan Documents or in connection with the Loan
through the date hereof, and the methodof computing the same, were and are
proper and agreed to by Borrowers and were properly computed and collected.
11.3 Note Balances. The outstanding balances owing on the Note, as
described in this Agreement, are true and correct.
11.4 No Waiver. Except as specifically provided herein, by entering into
this Agreement, Bank does not waive any existing default or any default
hereafter occurring, or become obligated to waive any condition or
obligation in any agreement between or among any of the parties hereto.
11.5 No Future Obligations. Bank has no obligation to make any additional
loan or extension of credit to or for the benefit of any Borrower, and no
obligation to further extend the maturity date of any credit extended to
any Borrower.
11.6 No Third -Party Beneficiaries. This agreement is not intended for,
and shall not be construed to be for, the benefit of any person not a
signatory thereto.
12. Reference and Arbitration.
12.1 Mandatory Arbitration. Unless expressly prohibited by law, any
controversy or claim between or among the parties, including those arising
out of or relating to this Agreement or the Loan Documents and any claim
based on or arising from an alleged tort, shall at the request of any party
be determined by arbitration. The arbitration shall be conducted in
accordance with the United States Arbitration Act (Title 9, U.S. Code),
notwithstanding any choice of law provision in this Agreement, and under
the Commercial Rules of the AAA. The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy
concerning whether an issue is arbitrable shall be determined by the
arbitrator(s). Judgment upon the arbitration award may be entered in any
court having jurisdiction. The institution and maintenance of an action
for judicial relief or pursuit of a provisional or ancillary remedy shall
not constitute a waiver of the right of any party, including the plaintiff,
to submit the controversy or claim to arbitration if any other party
contests such action for judicial relief.
12.2 Provisional Remedies, Self-Help and Foreclosure. No provision of this
Section 12 shall limit the right of any party to this Agreement to exercise
self-help remedies such as setoff, foreclosure against or sale of any real
or personal property or collateral or security, or obtaining provisional or
ancillary remedies from a court of competent jurisdiction before, after, or
during the pendency of any arbitration or other proceeding. The exercise
of a remedy does not waive the right of either party to resort to
arbitration or reference. At Bank's option, foreclosure under a deed of
trust or mortgage may be accomplished either by exercise of power of sale
under the deed of trust or by judicial foreclosure of the deed of trust or
mortgage.
13. Release of Bank. In consideration of the agreements and of Bank set
forth in this Agreement, Borrowers and all of their respective heirs,
personal representatives, predecessors, successors and assigns
(individually and collectively, the "Releasors"), hereby fully release,
remise, and forever discharge Bank, the parent of Bank and all other
affiliates and predecessors of Bank, and all past and present officers,
directors, agents, employees, servants, partners, shareholders, attorneys
and managers of Bank, the parent of Bank, and all other affiliates, and
predecessors of Bank and all of their respective heirs, personal
representatives, predecessors, successors and assigns, for, from, and
against any and all claims, liens, demands, causes of action,
controversies, offsets, obligations, losses, damages and liabilities of
every kind and character whatsoever, including, without limitation, any
action, omission, misrepresentation or other basis of liability founded
either in tort or contract and the duties arising thereunder, that the
Releasors, or any one of more of them, has had in the past, or now has,
whether known or unknown, whether asserted or unasserted, by reason of any
matter, cause or thing set forth in, relating to or arising out of, or in
any way connected with or resulting from, the Loan or the Loan Documents.
14. Joint and Several Liability.
(a) Each Borrower agrees that Borrowers are jointly and severally liable
to Bank for the payment of all obligations arising under this Agreement,
and that such liability is independent of the obligations of the other
Borrower. Bank may bring an action against any Borrower, whether an action
is brought against the other Borrower.
(b) Each Borrower agrees that any release which be given by Bank to the
other Borrower will not release such Borrower from its obligations under
this Agreement.
(c) Each Borrower waives any right to assert against Bank any defense,
setoff, counterclaim, or claims which such Borrower may have against the
other Borrower or any other party liable to Bank for the obligations of
Borrowers under this Agreement.
(d) Each Borrower agrees that it is solely responsible for keeping itself
informed as to the financial condition of the other Borrower and of all
circumstances which bear upon the risk of nonpayment. Each Borrower waives
any right it may have to require Bank to disclose to such Borrower any
information which Bank may now or hereafter acquire concerning the
financial condition of the other Borrower.
(e) Each Borrower waives all rights to notices of default or nonperformance
by any other Borrower under this Agreement. Each Borrower waives all
rights to notices of the existence or the creation of new indebtedness by
any other Borrower.
(f) Each Borrower represents and warrants to Bank that it will derive
benefit, directly or indirectly, from the collective administration and
availability of credit under this Agreement. Each Borrower agrees that
Bank will not be required to inquire as to the disposition by any Borrower
of funds disbursed in accordance with the terms of this Agreement.
(g) Each Borrower waives any right of subrogation, reimbursement
indemnification and contribution (contractual, statutory or otherwise),
including without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, which
such Borrower may now or hereafter have against any other Borrower with
respect to the indebtedness incurred under this Agreement. Each Borrower
waives any right to enforce any remedy which Bank now has or may hereafter
have against any other Borrower, and waives any benefit of, and right to
participate in, any security now or hereafter held by Bank.
15. Rights in the Event of Bankruptcy. If there shall be filed by or
against any Borrower a petition (whether voluntary or involuntary) under
any chapter of the United States Bankruptcy Code (the "Code") on or after
the date of this Agreement, it is the intention of Borrowers and Bank that
the terms and conditions of this Agreement with respect to Borrowers shall
be incorporated into a plan of reorganization under Section 1129 of Code (a
"PI&'). Borrowers agree that under any potential Plan which may be filed
in the future (a) this Agreement shall represent a necessary element
of such Plan, (b) Borrowers will not seek to alter or amend any of terms
and conditions of this Agreement, (c) such terms and conditions are
necessary for Bank's adequate protection, and (d) such terms and conditions
will remain binding upon Borrowers in any such Plan. If Borrowers fail to
obtain confirmation of a plan of reorganization incorporating the terms of
this Agreement within one hundred twenty (120) days after a petition is
filed, Bank is entitled to the automatic and absolute lifting of any
automatic stay as to the enforcement of any of the Loan Documents against
the collateral, including specifically, but not limited to, the stay
imposed by Section 362 of the Code. Borrowers hereby consent to the
immediate lifting of any such automatic stay, and will not contest any
motion by Bank to lift such stay. Borrowers acknowledge that Bank's
interest in the collateral can be adequately protected only if a plan of
reorganization incorporating the terms of this Agreement is confirmed
within one hundred twenty (120) days after the petition is filed. Bank
reserves its right to seek all remedies available to credits under the
Code, including, but not limited to, the right to move for relief from the
automatic stay at any time.
16. Miscellaneous.
16.1 Incorporation. This agreement shall form a part of each of the Loan
Documents, and all references to one of the Loan Documents shall mean that
document as hereby modified.
16.2 No Prejudice; Reservation of Rights. This Agreement shall not
prejudice any rights or remedies of Bank under the Loan Documents. Bank
reserves, without limitation, all rights which it has against any
indemnitor, guarantor, or endorser of the Note.
16.3 No Impairment. Except as specifically hereby amended, the Loan
Documents shall each remain unaffected by this Agreement and all such
documents shall remain in force and effect.
16.4 Purpose and Effect of Bank's Approval. Bank's approval of any matter
in connection with the Loan shall be for the sole purpose of protecting
Bank's security and rights. No such approval shall result in a waiver of
any default of Borrowers. In no event shall Bank's approval be a
representation of any kind with regard to the matter being approved.
16.5 Integration. The Loan Documents, including this Agreement, (a)
integrate all the terms and conditions mentioned in or incidental to the
Loan Documents; (b) supersede all oral negotiations and prior and other
writings with respect to their subject matter; and (c) are intended by the
parties as the final expression of the agreement with respect to the terms
and conditions set forth in those documents, including this Agreement, and
as the complete and exclusive statement of the terms agreed to by the
parties. If there is any conflict between the terms, conditions and
provisions of this Agreement and those of any other agreement or
instrument, including the other Loan Documents, the terms, conditions and
provisions of this Agreement shall prevail. No supplement modification or
amendment of this Agreement or the other Loan Documents shall be effective
unless in writing and signed by Bank and Borrowers.
16.6 Cross Default. Any default under this Agreement or an Event of
Default under any of the Loan Documents shall be an Event of Default under
each and every of the other Loan Documents.
16.7 Counterparts/Construction/Time of Essence. This Agreement and any
attached consents or exhibits requiring signatures may be executed in any
number of counterparts, each of which, when so executed, shall be deemed an
original, but all of which shall constitute one and the same agreement.
Section headings and paragraph titles used in this Agreement are for
reference only and shall not affect or limit the interpretation of meaning
of any provisions of this Agreement. As used in this Agreement, the word
"include(s)" means "include(s), without limitation", and the word
"including" means "including, but not limited to".
16.8 Severability. If any court of competent jurisdiction determines any
provision of this Agreement or any provision in any of the other Loan
Documents to be invalid, illegal or unenforceable, that portion shall be
deemed severed from the rest, which shall remain in full force and effect.
16.9 Exchange of Information. Borrowers agree that Bank may exchange or
disclose financial information about any Borrower with or to any
BankAmerica Corporation affiliates or other related entities.
16.10 Governing Law/Rights in Event of Litigation. This Agreement shall be
governed by and construed according to the laws of the State of Nevada.
Borrowers hereby submit to jurisdiction and venue in Xxxxx County, Nevada,
and agrees that any and all litigation or arbitration proceeding shall be
maintained in Xxxxx County, Nevada. In the event of judicial proceedings,
Borrowers agree that all issues in such judicial proceeding litigation
(including defenses, cross-claims and counter-claims) shall be resolved by
a judge and not a jury and, therefore, Borrowers waive their rights to a
jury trial which they otherwise would have had.
16.11 Attorneys' Fees. In any lawsuit or arbitration proceeding between
Bank and any Borrower which relates to, arises out of, or involves in any
way this Agreement or any of the other Loan Documents, the prevailing party
in said action shall be entitled to recover all of its attorneys' fees
(including any allocated fees of in-house counsel) and costs (including but
not limited to "taxable costs" as defined by statute) associated with such
suit or arbitration.
16.12 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns; provided, however,
Borrowers may not transfer their rights under the Loan Documents without
the prior written consent of Bank. Bank may transfer its rights under the
Loan Documents to any successor in interest.
16.13 No Waiver/Cumulative Remedies/Survival. No failure to exercise or no
delay in exercising any right, power or remedy hereunder or under any of
the Loan Documents shall impair any rights power or remedy that Bank may
have, nor shall such delay be construed to be a waiver of any of such
rights, powers or remedies. Bank shall not be deemed to have waived any
right, power or remedy except in writing signed by an officer of Bank
expressly stating that it is a waiver of same right, power or remedy. The
rights, powers and remedies of Bank under the Loan Documents are cumulative
and not exclusive of any rights, powers or remedies that Bank would
otherwise have, and may be pursued at any time and from time to time and in
such order as Bank shall determine in its sole discretion. The
representations, warranties, acknowledgments and agreements set forth
herein shall survive the date of this Agreement.
16.14 Mutual Agreement. The parties hereto agree that the terms and
provisions of this Agreement embody their mutual intent and that such terms
and provisions are not to be construed more liberally in favor, nor more
strictly against, any party. This Agreement shall not be construed as if
it had been prepared by one of the parties, but rather as if it had been
prepared by all of the parties.
16.15 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to Bank and all financial covenants will be made under
generally accepted account principles, consistently applied.
16.16 Disposition of Schedules. Reports, Etc. Delivered by Borrowers.
Bank will not be obligated to return any schedules, invoices, statements,
budgets, forecasts, reports or other papers delivered by Borrowers. Bank
will destroy or otherwise dispose of such materials at such time as Bank,
in its discretion, deems appropriate.
16.17 Returned Merchandise. Until Bank exercises its rights to collect
the accounts receivable as provided under any security agreement required
under this Agreement, Borrowers may continue their present policies for
returned merchandise and adjustments. Credit adjustments with respect to
returned merchandise shall be made immediately upon receipt of the
merchandise by Borrowers or upon such other disposition of the merchandise
by the debtor in accordance with Borrowers' instructions.
16.18 Verification of Receivables. Bank may at any time, either orally
or in writing, request confirmation from any debtor of the current amount
and status of the accounts receivable upon which such debtor is obligated.
16.19 Indemnification. Borrowers agree to indemnify Bank against, and hold
Bank harmless from, all claims, actions, losses, costs and expenses
(including attorneys' fees and allocated costs for in-house legal services)
incurred by Bank and arising from any contention whether well-founded or
otherwise, that there has been a failure to comply with any law regulating
Borrowers' sales or leases to or performance of services for debtors
obligated upon Borrowers' accounts receivable and disclosures in connection
therewith. This indemnity will survive repayment of Borrowers'
obligations to Bank and termination of this Agreement.
16.20 Notices. All notices required under this Agreement shall be
personally delivered or sent by first class mail, postage prepaid, to the
addresses on the signature page of this Agreement, or to such other
addresses as Bank and Borrowers may specify from time to time.
16.21 Prior Agreement Superseded. This Agreement supersedes the Original
Loan Agreement, which was subsequently modified on December 6, 1995,
December 11, 1995, March 10, 1996, July 1, 1996, and August 15, 1996, and
any credit outstanding thereunder shall be deemed outstanding under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the dates set forth below to be effective as of the day and
year set forth above.
Bank of America National TJ Systems Corporation,
Trust and Savings Association a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
------------------------- -----------------------
Xxxxx X. Xxxxxx, its Xxxxxxx X. Xxxxxxx, its
Vice President President
TJ Computer Services, Inc.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx, its
President
Address where notices to Address to where notices to the
the Bank are to be sent: Borrowers are to be sent:
000 Xxxxx Xxxxx Xxxxxx, 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Dept. 4934 Xxx Xxxxx, XX 00000
ATTN.: Xxxx X. Xxxxxxxxx
Xxxxxxx , Xxxxxxx 00000
