SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT
("Agreement") is made and entered into as of June 25, 1998 by and between
REMEC, Inc., a California corporation ("Borrower"), and UNION BANK OF
CALIFORNIA, N.A. ("Bank"). This Agreement amends and restates in its
entirety that certain Amended and Restated Loan Agreement dated January 17,
1997 between Bank and Borrower, as amended.
SECTION 1. THE LOAN
1.1.1 THE REVOLVING LOAN. Bank will loan to
Borrower an amount not to exceed Nine Million Dollars ($9,000,000)
outstanding in the aggregate at any one time (the "Revolving Loan").
Borrower may borrow, repay and reborrow all or part of the Revolving Loan in
amounts of not less than Ten Thousand Dollars ($10,000) in accordance with
the terms of the Revolving Note. All borrowings of the Revolving Loan must
be made before July 3, 2000 at which time all unpaid principal and interest
of the Revolving Loan shall be due and payable. The Revolving Loan shall be
evidenced by a promissory note (the "Revolving Note") on the standard form
used by Bank for commercial loans. Bank shall enter each amount borrowed and
repaid in Bank's records and such entries shall be deemed to be the amount of
the Revolving Loan outstanding. Omission of Bank to make any such entries
shall not discharge Borrower of its obligation to repay in full with interest
all amounts borrowed.
1.1.1.1 THE STANDBY L/C SUBLIMIT. As a sublimit
to the Revolving Loan, Bank shall issue, for the account of Borrower, one or
more irrevocable standby letters of credit (individually, an "L/C" and
collectively, the "L/Cs"). All such L/Cs shall be drawn on such terms and
conditions as are acceptable to Bank. The aggregate amount available to be
drawn under all outstanding L/Cs and the aggregate amount of unpaid
reimbursement obligations under drawn L/Cs shall not exceed Five Hundred
Thousand Dollars ($500,000) and shall reduce, dollar for dollar, the maximum
amount available under the Revolving Loan. No L/C shall have an expiry date
more than twelve months from its date of issuance and each L/C shall be
governed by the terms of (and Borrower agrees to execute) Bank's standard
form of standby letter of credit application and reimbursement agreement. No
L/C shall expire after July 3, 2000.
1.1.2 THE REVOLVER-TO-TERM LOAN. Bank will loan
to Borrower an amount not to exceed Eight Million Dollars ($8,000,000)
outstanding in the aggregate at any one time (the "Revolver-To-Term Loan").
Borrower may borrow, repay and reborrow all or part of the Revolver-To-Term
Loan in amounts of not less than One Hundred Thousand Dollars ($100,000) in
accordance with the terms of the Revolver-To-Term Note. All borrowings of
the Revolver-To-Term Loan must be made before July 1, 2000, at which time all
unpaid principal under the Revolver-To-Term Loan shall be converted to a
fully amortizing term loan as set forth in Section 1.1.3. The
Revolver-To-Term Loan shall be evidenced by a promissory note (the
"Revolver-To-Term Note") on the standard form used by Bank for commercial
loans. Bank shall enter each amount borrowed and repaid in Bank's records
and such entries shall be deemed to be the amount of the Revolver-To-Term
Loan outstanding. Omission of Bank to make any such entries shall not
discharge Borrower of its obligation to repay in full with interest all
amounts borrowed.
1.1.3 THE TERM LOAN. Solely to repay the
Revolver-To-Term Loan, Bank will loan to Borrower the sum outstanding at the
maturity of the Revolver-To-Term Loan in one disbursement on or before July
1, 2000 (the "Term Loan"). In the event of a prepayment of principal and
payment of any resulting fees, any prepaid amounts shall be applied to the
scheduled principal payments in the reverse order of their maturity. The
Term Loan shall be evidenced by a promissory note (the "Term Note") on the
standard form used by Bank for commercial loans.
1.2 TERMINOLOGY.
As used herein the word "Loan" shall mean,
collectively, all the credit facilities described above.
As used herein the word "Note" shall mean,
collectively, all the promissory notes described above and all reimbursement
agreements entered into with respect to L/Cs.
As used herein, the words "Loan Documents" shall
mean all documents executed in connection with this Agreement.
1.3 PURPOSE OF LOAN. The proceeds of the Revolving Loan
shall be used only for general working capital purposes, and the proceeds of
the Revolver-To-Term Loan shall be used only for general business purposes,
including the purchase of plant, property and equipment, or the acquisition
of other businesses. The proceeds of the Term Loan shall be used only for
the purpose specified in Section 1.1.3.
- 1 -
1.4 INTEREST. The unpaid principal balance of the
Revolving Loan, the Revolver-to-Term Loan and the Term Loan shall bear
interest at the rates provided in the Revolving Note, the Revolver-to-Term
Note and the Term Note, respectively, and selected by Borrower. Such loans
may be prepaid in full or in part only in accordance with the terms of such
notes and any such prepayment shall be subject to the prepayment fee provided
for therein.
1.5 UNUSED COMMITMENT FEE. Borrower shall pay to Bank a
fee on the unutilized portions of the Revolving Loan and the
Revolver-to-Term Loan ("Non-utilization Fee") calculated and payable annually
in arrears, based on the combined unutilized amount of such loans, at a rate
of 9 basis points per annum, not to exceed $15,000 per annum.
1.6 L/C FEES. All fees in connection with L/Cs shall be
in accordance with Bank's standard schedule of fees as published from time to
time, except that the issuance/maintenance fee for each L/C shall be one
percent (1%) per annum (minimum $150), payable annually in advance on the
date such L/C is issued and on each anniversary of such date.
1.7 BALANCES. Borrower shall maintain its major
depository accounts with Bank until the Note and all sums payable pursuant to
this Agreement have been paid in full.
1.8 DISBURSEMENT. Following execution hereof, Bank
shall disburse the proceeds of the Loan as provided in Bank's standard form
Authorization executed by Borrower.
1.9 CONTROLLING DOCUMENT. In the event of any
inconsistency between the terms of this Agreement and any Note or any of the
other Loan Documents, the terms of such Note or other Loan Documents will
prevail over the terms of this Agreement.
SECTION 2. CONDITIONS PRECEDENT
Bank shall not be obligated to disburse all or any portion of the
proceeds of the Loan unless at or prior to the time for the making of such
disbursement, the following conditions have been fulfilled to Bank's
satisfaction:
2.1 COMPLIANCE. Borrower shall have performed and
complied with all terms and conditions required by this Agreement to be
performed or complied with by it prior to or at the date of the making of
such disbursement and shall have executed and delivered to Bank the Note and
other documents deemed necessary by Bank.
2.2 GUARANTIES. Xxxxxxxx, Inc., REMEC Microwave,
Inc., Radian Technology, Inc., Remec Wireless, Inc., Magnum Microwave
Corporation, Verified Technical Corporation, Q-Bit Corporation, and REMEC
Canada, Inc. ("Guarantors") shall have executed and delivered to Bank their
respective continuing guaranties in form and amount satisfactory to Bank.
2.3 BORROWING RESOLUTION. Borrower shall have
provided Bank with certified copies of resolutions duly adopted by the Board
of Directors of Borrower, authorizing this Agreement and the Loan Documents.
Such resolutions shall also designate the persons who are authorized to act
on Borrower's behalf in connection with this Agreement and to do the things
required of Borrower pursuant to this Agreement.
2.4 CONTINUING COMPLIANCE. At the time any
disbursement is to be made, there shall not exist any event, condition or act
which constitutes an event of default under Section 6 hereof or any event,
condition or act which with notice, lapse of time or both would constitute
such event of default; nor shall there be any such event, condition, or act
immediately after the disbursement were it to be made.
SECTION 3. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants that:
3.1 BUSINESS ACTIVITY. The principal business of
Borrower is the manufacture of microwave electronic components and
subsystems.
3.2 AFFILIATES AND SUBSIDIARIES. Borrower's
affiliates and subsidiaries (those entities in which Borrower has either a
controlling interest or at least a 25% ownership interest ("Subsidiaries" and
"Affiliates, respectively)) and their addresses, and the names of Borrower's
principal shareholders, are as provided on a schedule delivered to Bank on or
before the date of this Agreement.
3.3 AUTHORITY TO BORROW. The execution, delivery and
performance of this Agreement, the Note and all other agreements and
instruments required by Bank in connection with the Loan are not in
contravention of any of the terms of any indenture, agreement or undertaking
to which Borrower is a party or by which it or any of its property is bound
or affected.
3.4 FINANCIAL STATEMENTS. The financial statements of
Borrower, including both a balance sheet at January 31, 1998, together with
supporting schedules, and an income statement for the twelve (12) months ended
January 31,
- 2 -
1998, have heretofore been furnished to Bank, and are true and complete and
fairly represent the financial condition of Borrower during the period
covered thereby. Since January 31, 1998, there has been no material adverse
change in the financial condition or operations of Borrower.
3.5 TITLE. Except for assets which may have been
disposed of in the ordinary course of business, Borrower has good and
marketable title to all of the property reflected in its financial statements
delivered to Bank and to all property acquired by Borrower since the date of
said financial statements, free and clear of all liens, encumbrances,
security interests and adverse claims except those specifically referred to
in said financial statements.
3.6 LITIGATION. There is no litigation or proceeding
pending or threatened against Borrower or any of its property which is
reasonably likely to affect the financial condition, property or business of
Borrower in a materially adverse manner or result in liability in excess of
Borrower's insurance coverage.
3.7 DEFAULT. Borrower is not now in default in the
payment of any of its material obligations, and there exists no event,
condition or act which constitutes an event of default under Section 6 hereof
and no condition, event or act which with notice or lapse of time, or both,
would constitute such an event of default.
3.8 ORGANIZATION. Borrower is duly organized and
existing under the laws of the state of its organization, and has the power
and authority to carry on the business in which it is engaged and/or proposes
to engage.
3.9 POWER. Borrower has the power and authority to
enter into this Agreement and to execute and deliver the Note and all of the
other Loan Documents.
3.10 AUTHORIZATION. This Agreement and all things
required by this Agreement have been duly authorized by all requisite action
of Borrower.
3.11 QUALIFICATION. Borrower is duly qualified and in
good standing in any jurisdiction where such qualification is required.
3.12 COMPLIANCE WITH LAWS. Borrower is not in
violation with respect to any applicable laws, rules, ordinances or
regulations which materially affect the operations or financial condition of
Borrower.
3.13 ERISA. Any defined benefit pension plans as
defined in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), of Borrower meet, as of the date hereof, the minimum funding
standards of Section 302 of ERISA, and no Reportable Event or Prohibited
Transaction as defined in ERISA has occurred with respect to any such plan.
3.14 REGULATION U. No action has been taken or is
currently planned by Borrower, or any agent acting on its behalf, which would
cause this Agreement or the Note to violate Regulation U or any other
regulation of the Board of Governors of the Federal Reserve System or to
violate the Securities and Exchange Act of 1934, in each case as in effect
now or as the same may hereafter be in effect. Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock as one of its important activities and none of the proceeds of
the Loan will be used directly or indirectly for such purpose.
3.15 CONTINUING REPRESENTATIONS. These
representations shall be considered to have been made again at and as of the
date of each disbursement of the Loan and shall be true and correct as of
such date or dates.
SECTION 4. AFFIRMATIVE COVENANTS
Until the Note and all sums payable pursuant to this Agreement or
any other of the Loan Documents have been paid in full, unless Bank waives
compliance in writing, Borrower agrees that:
4.1 USE OF PROCEEDS. Borrower will use the proceeds
of the Loan only as provided in Section 1.3, above.
4.2 PAYMENT OF OBLIGATIONS. Borrower will pay and
discharge promptly all taxes, assessments and other governmental charges and
claims levied or imposed upon it or its property, or any part thereof,
provided, however, that Borrower shall have the right in good faith to
contest any such taxes, assessments, charges or claims and, pending the
outcome of such contest, to delay or refuse payment thereof provided that
adequately funded reserves are established by it to pay and discharge any
such taxes, assessments, charges and claims.
4.3 MAINTENANCE OF EXISTENCE. Borrower will maintain
and preserve its existence and assets and all rights, franchises, licenses
and other authority necessary for the conduct of its business and will
maintain and preserve its property, equipment and facilities in good order,
condition and repair. Bank may, at reasonable times, visit and inspect any
of the properties of Borrower.
- 3 -
4.4 RECORDS. Borrower will keep and maintain full
and accurate accounts and records of its operations according to generally
accepted accounting principles and will permit Bank to have access thereto,
to make examination and photocopies thereof, and to make audits during
regular business hours. Costs for such audits shall be paid by Borrower.
4.5 INFORMATION FURNISHED. Borrower will furnish to
Bank:
(a) Within forty-five (45) days after the
close of each fiscal quarter, except for the final quarter of each fiscal
year, Borrower's and each Pledgor's unaudited balance sheets as of the close
of such fiscal quarter, and unaudited income and expense statements with
supportive schedules and statements of retained earnings for such fiscal
quarter, in each case prepared in accordance with generally accepted
accounting principles and accompanied by a consolidating schedule;
(b) Within ninety (90) days after the close
of each fiscal year, a copy of Borrower's consolidated statement of financial
condition including at least its balance sheet as of the close of such fiscal
year, and its income and expense statement and retained earnings statement
for such fiscal year, examined and prepared on an audited basis by
independent certified public accountants selected by Borrower and reasonably
satisfactory to Bank in accordance with generally accepted accounting
principles applied on a basis consistent with that of previous years,
accompanied by an unaudited consolidating schedule;
(c) As soon as available, copies of such
financial statements and reports as Borrower may file with any state or
federal agency, including its 10-K and 10-Q reports;
(d) Such other financial statements and
information as Bank may reasonably request from time to time;
(e) In connection with each financial
statement provided hereunder, a statement executed by the president or chief
financial officer of Borrower certifying that no default has occurred and no
event exists which with notice or the lapse of time, or both, would result in
a default hereunder;
(f) In connection with each fiscal year-end
statement required hereunder, any management letter of Borrower's certified
public accountants;
(g) Within forty-five (45) days after each
fiscal quarter, a certification of compliance with all covenants under this
Agreement, executed by Borrower's chief financial officer or other duly
authorized officer of Borrower, in form acceptable to Bank;
(h) Prompt written notice to Bank of all
events of default under any of the terms or provisions of this Agreement or
of any other agreement, contract, document or instrument entered or to be
entered into with Bank, any litigation in excess of One Million Dollars
($1,000,000) which, if decided adversely to Borrower, would have a material
adverse effect on Borrower's financial condition, and any other matter which
has resulted in, or is likely to result in, a material adverse change in
Borrower's financial condition or operations;
(i) Prior written notice to Bank of any
changes in Borrower's officers and other senior management, Borrower's name,
and the location of Borrower's and each Pledgor's assets, principal place of
business or chief executive office; and
4.6 QUICK RATIO. Borrower shall maintain at all
times a ratio of cash, accounts receivable and marketable securities to
current liabilities of not less than 1.5:1.0, as such terms are defined by
generally accepted accounting principles.
4.7 TANGIBLE NET WORTH. Borrower will at all times
maintain a Tangible Net Worth of not less than the sum of (a) One Hundred
Fifty-Five Million Dollars ($155,000,000), (b) fifty percent (50%) of
Borrower's net profit after taxes for each fiscal year of Borrower ending
after January 31, 1998 and on or before the date of computation, and (c) one
hundred percent (100%) of the net proceeds of any equity securities issued by
Borrower on or after July 1, 1998. "Tangible Net Worth" shall mean net worth
increased by indebtedness of Borrower subordinated to Bank and decreased by
patents, licenses, trademarks, trade names, goodwill and other similar
intangible assets, organizational expenses, and monies due from affiliates
(including officers, shareholders and directors).
4.8 LIQUIDITY. Borrower will at all times maintain a
ratio of Liquid Assets to the unsecured portion of the Lease Balance of not
less than 1.5:1.0. "Liquid Assets" shall mean cash and short investments
consisting of commercial paper, U.S. Treasury Bills, Corporate Bonds and
Notes, and Municipal Bonds and Notes, all with maturities of less than 12
months. "Lease Balance" shall mean the aggregate liability for which
Borrower is liable pursuant to that certain financing obligation undertaken
in connection with the acquisition of real property.
4.9 FIXED CHARGE COVERAGE RATIO. Borrower will
maintain a ratio of EBITDA, plus lease payments, to Fixed Charges of not less
than 2.0:1.0. "EBITDA" shall mean income from operations after deducting all
expenses other than interest, taxes, depreciation, and amortization. "Fixed
Charges" shall mean the sum of (I) that portion of term obligations
(including principal and interest), (ii) lease payments on real property,
(iii) income taxes and (iv) dividends, all during the twelve
- 4 -
(12) months preceding the date of calculation. Compliance with this
subsection shall be measured as of the end of each of Borrower's fiscal
quarters, for the immediately preceding twelve (12) month period.
4.10 FUNDED DEBT TO EBITDA RATIO. Borrower will
maintain at all times a ratio of Funded Debt to EBITDA of not more than
1.5:1.0. "Funded Debt" shall mean all borrowed funds including loans and
capital leases, whether senior or subordinated, plus the Lease Balance.
4.11 INSURANCE. Borrower will keep all of its
insurable property, real, personal or mixed, insured by good and responsible
companies against fire and such other risks as are customarily insured
against by companies conducting similar business with respect to like
properties. Borrower will maintain adequate worker's compensation insurance
and adequate insurance against liability for damages to persons and property.
4.12 ADDITIONAL REQUIREMENTS. Borrower will promptly,
upon demand by Bank, take such further action and execute all such additional
documents and instruments in connection with this Agreement as Bank in its
reasonable discretion deems necessary, and promptly supply Bank with such other
information concerning its affairs as Bank may request from time to time.
4.13 LITIGATION AND ATTORNEYS' FEES. Borrower will
pay promptly to Bank upon demand, reasonable attorneys' fees (including but
not limited to the reasonable estimate of the allocated costs and expenses of
in-house legal counsel and legal staff) and all costs and other expenses paid
or incurred by Bank in collecting, modifying or compromising the Loan or in
enforcing or exercising its rights or remedies created by, connected with or
provided for in this Agreement or any of the Loan Documents, whether or not
an arbitration, judicial action or other proceeding is commenced. If such
proceeding is commenced, only the prevailing party shall be entitled to
attorneys' fees and court costs.
4.14 BANK EXPENSES. Borrower will pay or reimburse
Bank for all costs, expenses and fees incurred by Bank in preparing and
documenting this Agreement and the Loan, and all amendments and modifications
thereof, including but not limited to all filing and recording fees, costs of
appraisals, insurance and attorneys' fees, including the reasonable estimate
of the allocated costs and expenses of in-house legal counsel and legal staff.
4.15 REPORTS UNDER PENSION PLANS. Borrower will
furnish to Bank, as soon as possible and in any event within 15 days after
Borrower knows or has reason to know that any event or condition with respect
to any defined benefit pension plans of Borrower described in Section 3 above
has occurred, a statement of an authorized officer of Borrower describing
such event or condition and the action, if any, which Borrower proposes to
take with respect thereto.
SECTION 5. NEGATIVE COVENANTS
Until the Note and all other sums payable pursuant to this
Agreement or any other of the Loan Documents have been paid in full, unless
Bank waives compliance in writing, Borrower agrees that:
5.1 ENCUMBRANCES AND LIENS. Borrower and Guarantors
will not create, assume or suffer to exist any mortgage, pledge, security
interest, encumbrance, or lien (other than for taxes not delinquent and for
taxes and other items being contested in good faith) on property of any kind,
whether real, personal or mixed, now owned or hereafter acquired, or upon the
income or profits thereof, except to Bank and except for minor encumbrances
and easements on real property which do not affect its market value, and
except for existing liens on Borrower's personal property and future purchase
money security interests encumbering only the personal property purchased.
5.2 BORROWINGS. Borrower will not sell, discount or
otherwise transfer any account receivable or any note, draft or other
evidence of indebtedness, except to Bank or except to a financial institution
at face value for deposit or collection purposes only and without any fee
other than fees normally charged by the financial institution for deposit or
collection services. Borrower will not borrow any money, become contingently
liable to borrow money, nor enter any agreement to directly or indirectly
obtain borrowed money, except pursuant to agreements made with Bank.
5.3 SALE OF ASSETS, LIQUIDATION OR MERGER. Borrower
will neither liquidate nor dissolve nor enter into any consolidation, merger,
partnership or other combination, nor convey, nor sell, nor lease all or the
greater part of its assets or business, nor purchase or lease all or the
greater part of the assets or business of another where the total purchase
price exceeds Thirty Million Dollars ($30,000,000) or where the cash
consideration exceeds Fifteen Million Dollars ($15,000,000).
5.4 LOANS, ADVANCES AND GUARANTIES. Borrower will
not, except in the ordinary course of business as currently conducted, make
any loans or advances, become a guarantor or surety, pledge its credit or
properties in any manner or extend credit; provided, however, loans or
advances to Affiliates or Subsidiaries may be made in amounts not to exceed
Ten Million Dollars ($10,000,000) for property, plant and equipment.
5.5 INVESTMENTS. Borrower will not purchase the debt
or equity of another person or entity except for savings accounts and
certificates of deposit of Bank, direct U.S. Government obligations and
commercial paper issued by
- 5 -
corporations with the top ratings of Xxxxx'x or Standard & Poor's, provided
all such permitted investments shall mature within one year of purchase.
5.6 CHANGES/MERGERS. Borrower will not changes its
name; liquidate or dissolve, or enter into any consolidation, merger,
partnership, joint venture or other combination; redeem, purchase, retire or
otherwise acquire any shares of any class of capital stock of Borrower in
excess of Ten Million Dollars ($10,000,000); prepay any subordinated debt,
debt for borrowed money, or debt secured by any permitted Lien, or enter into
or modify any agreement as a result of which the terms of payment of any such
debt are waived or modified.
5.7 TRANSACTIONS WITH RELATED PERSONS. Borrower will
not directly or indirectly enter into any transaction with or for the benefit
of a Related Person on terms more favorable to the Related Person than would
have been obtainable in an arms length dealing. "Related Person" shall mean
any Affiliate of Borrower, or any officer, employee, director or shareholder
of Borrower or any Affiliate, or a relative of any of the foregoing.
5.8 LOSSES. Borrower will not incur a cumulative net
loss, after provision for income taxes, for an amount in excess of Five
Hundred Thousand Dollars ($500,000) for any two or more consecutive fiscal
quarters, nor incur a net loss for any fiscal year.
SECTION 6. EVENTS OF DEFAULT
The occurrence of any of the following events ("Events of Default")
shall terminate any obligation on the part of Bank to make or continue the
Loan and automatically, unless otherwise provided under the Note, shall make
all sums of interest and principal and any other amounts owing under the Loan
immediately due and payable, without notice of default, presentment or demand
for payment, protest or notice of nonpayment or dishonor, or any other
notices or demands:
6.1 Borrower shall default in the due and punctual
payment of the principal of or the interest on the Note or any of the other
Loan Documents; or
6.2 Any default shall occur under the Note; or
6.3 Borrower shall default in the due performance or
observance of any covenant or condition of the Loan Documents; or
6.4 Any guaranty or subordination agreement now or
hereafter required hereunder is breached or becomes ineffective, or any
guarantor or subordinating creditor dies, disavows or attempts to revoke or
terminate such guaranty or subordination agreement.
SECTION 7. MISCELLANEOUS PROVISIONS
7.1 ADDITIONAL REMEDIES. The rights, powers and
remedies given to Bank hereunder shall be cumulative and not alternative and
shall be in addition to all rights, powers and remedies given to Bank by law
against Borrower or any other person, including but not limited to Bank's
rights of set off or banker's lien.
7.2 NONWAIVER. Any forbearance or failure or delay
by Bank in exercising any right, power or remedy hereunder shall not be
deemed a waiver thereof and any single or partial exercise of any right,
power or remedy shall not preclude the further exercise thereof. No waiver
shall be effective unless it is in writing and signed by an officer of Bank.
7.3 INUREMENT. The benefits of this Agreement shall
inure to the successors and assigns of Bank and the permitted successors and
assigns of Borrower, and any assignment by Borrower without Bank's consent
shall be null and void.
7.4 APPLICABLE LAW. This Agreement and all other
agreements and instruments required by Bank in connection herewith shall be
governed by and construed according to the laws of the State of California.
7.5 SEVERABILITY. Should any one or more provisions
of this Agreement be determined to be illegal or unenforceable, all other
provisions nevertheless shall be effective. In the event of any conflict
between the provisions of this Agreement and the provisions of any Note or
reimbursement agreement evidencing any indebtedness hereunder, the provisions
of such Note or reimbursement agreement shall prevail.
7.6 INTEGRATION CLAUSE. Except for documents and
instruments specifically referenced herein, this Agreement constitutes the
entire agreement between Bank and Borrower regarding the Loan and all prior
communications, verbal or written, between Borrower and Bank shall be of no
further effect or evidentiary value.
- 6 -
7.7 CONSTRUCTION. The section and subsection
headings herein are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
7.8 AMENDMENTS. This Agreement may be amended only
in writing signed by all parties hereto.
7.9 COUNTERPARTS. Borrower and Bank may execute one
or more counterparts to this Agreement, each of which shall be deemed an
original, but when together shall constitute one and the same instrument.
SECTION 8. SERVICE OF NOTICES
8.1 Any notices or other communications provided for
or allowed hereunder shall be effective only when given by one of the
following methods and addressed to the respective party at its address given
with the signatures at the end of this Agreement and shall be considered to
have been validly given: (a) upon delivery, if delivered personally; (b)
upon receipt, if mailed, first class postage prepaid, with the United States
Postal Service; (c) on the next business day, if sent by overnight courier
service of recognized standing; and (d) upon telephoned confirmation of
receipt, if telecopied.
8.2 The addresses to which notices or demands are to
be given may be changed from time to time by notice delivered as provided
above.
THIS AGREEMENT is executed on behalf of the parties by duly
authorized officers as of the date first above written.
UNION BANK OF CALIFORNIA, X.X. XXXXX, INC.
By: /s/ Xxxx XxXxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------------ --------------------------------
Title Vice President Title Chairman & CEO
---------------------------------- ------------------------------
By: [ILLEGIBLE] By: /s/ Xxxxxxx X. XxXxxxxx
------------------------------------ --------------------------------
Title: Vice President Title: SVP, CFO & Secretary
---------------------------------- -----------------------------
Address: 000 "X" Xxxxxx, Xxxxxx Xxxxx Address: 0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000 Xxx Xxxxx, XX 00000
Attention: Xxxx XxXxxx Attention: Xxxxxx Xxxxxxx
----------------------------- -------------------------
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
---------------------------- ------------------------
Telephone: (000) 000-0000 Telephone: (000) 000-0000
---------------------------- ------------------------
- 7 -
