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MASTER REVOLVING NOTE
Variable Rate-Maturity Date-Obligatory Advance
(Business and Commercial Loans Only)
_____________________________________________________________________________
| AMOUNT NOTE DATE MATURITY DATE TAX IDENTIFICATION # |
| |
| $5,000,000.00 APRIL 30, 1996 MARCH 1, 1998 ▇▇-▇▇▇▇▇▇▇ |
|_____________________________________________________________________________|
On the Maturity Date, as stated above, for value received, the undersigned
promise(s) to pay to the order of COMERICA BANK-CALIFORNIA ("Bank"), at any
office of the Bank in the State of California, FIVE MILLION AND NO/100
Dollars (U.S.) (or that portion of it advanced by the Bank and not repaid as
later provided) with interest until maturity, whether by acceleration or
otherwise, or an Event of Default, as later defined, at a per annum rate
equal to the Bank's base rate from time to time in effect PLUS 0.00% per
annum and after that at a rate equal to the rate of interest otherwise
prevailing under this Note plus 3% per annum (but in no event in excess of
the maximum rate permitted by law). The Bank's "base rate" is that annual
rate of interest so designated by the Bank and which is changed by the Bank
from time to time. Interest rate changes will be effective for interest
computation purposes as and when the Bank's base rate changes. Interest shall
be calculated on the basis of 360-day year for the actual number of days the
principal is outstanding. Accrued interest on this Note shall be payable on
the 1ST day of each MONTH commencing JUNE 1, 1996, until the Maturity Date
when all amounts outstanding under this Note shall be due and payable in
full. If the frequency of interest payments is not otherwise specified,
accrued interest on this Note shall be payable monthly on the first day of
each month. If any payment of principal or interest under this Note shall be
payable on a day other than a day on which the Bank is open for business,
this payment shall be extended to the next succeeding business day and
interest shall be payable at the rate specified in this Note during this
extension. A late payment charge equal to 5% of each late payment may be
charged on any payment not received by the Bank within 10 calendar days after
the payment due date, but acceptance of payment of this charge shall not
waive any Default under this Note.
The principal amount payable under this Note shall be the sum of all advances
made by the Bank to or at the request of the undersigned, less principal
payments actually received in cash by the Bank. The books and records of the
Bank shall be the best evidence of the principal amount and the unpaid
interest amount owing at any time under this Note and shall be conclusive
absent manifest error. No interest shall accrue under this Note until the
date of the first advance made by the Bank; after that interest on all
advances shall accrue and be computed on the principal balance outstanding
from time to time under this Note until the same is paid in full.
This Note and any other indebtedness and liabilities of any kind of the
undersigned (or any of them) to the Bank, and any and all modifications,
renewals or extensions of it, whether joint or several, contingent or
absolute, now existing or later arising, and however evidenced (collectively,
"Indebtedness") are secured by and the Bank is granted a security interest in
all items deposited in any account of any of the undersigned with the Bank
and by all proceeds of these items (cash or otherwise), all account balances
of any of the undersigned from time to time with the Bank, by all property of
any of the undersigned from time to time in the possession of the Bank and by
any other collateral, rights and properties described in each and every deed
of trust, mortgage, security agreement, pledge, assignment and other security
or collateral agreement which has been, or will at any time(s) later be,
executed by any (or all) of the undersigned to or for the benefit of the Bank
(collectively "Collateral"). Notwithstanding the above, (i) to the extent
that any portion of the Indebtedness is a consumer loan, that portion shall
not be secured by any deed of trust or mortgage on or other security interest
in any of the undersigned's principal dwelling or any of the undersigned's
real property which is not a purchase money security interest as to that
portion, unless expressly provided to the contrary in another place, or (ii)
if the undersigned (or any of them) has(have) given or give(s) Bank a deed of
trust or mortgage covering real property, that deed of trust or mortgage
shall not secure this Note or any other Indebtedness of the undersigned (or
any of them), unless expressly provided to the contrary In another place.
If the undersigned (or any of them) or any guarantor under a guaranty of all
or part of the Indebtedness ("guarantor") (i) fail(s) to pay any of the
indebtedness when due, by maturity, acceleration or otherwise, or fails(s) to
pay any indebtedness owing on a demand basis upon demand; or (ii) fail(s) to
comply with any of the terms or provisions of any agreement between the
undersigned (or any of them) or any such guarantor and the Bank; or (iii)
become(s) insolvent or the subject of a voluntary or involuntary proceeding
in bankruptcy, or a reorganization, arrangement or creditor composition
proceeding, (if a business entity) cease(s) doing business as a going
concern, (if a natural person) die(s) or become(s) incompetent, (if a
partnership) dissolve(s) or any general partner of it dies, becomes
incompetent or becomes the subject of a bankruptcy proceeding or (if a
corporation of a limited liability company) is the subject of a dissolution,
merger or consolidation; or (a) if any warranty or representation made by any
of the undersigned or any guarantor in connection with this Note or any of
the Indebtedness shall be discovered to be untrue or incomplete; or (b) if
there is any termination, notice of termination, or breach of any guaranty,
pledge, collateral assignment or subordination agreement relating to all or
any part of the Indebtedness; or (c) if there is any failure by any of the
undersigned or any guarantor to pay when due any of its Indebtedness (other
than to the Bank) or in the observance or performance of any term, covenant
or condition in any document evidencing, securing or relating to such
Indebtedness; or (d) if the Bank deems itself insecure believing that the
prospect of payment of this Note or any of the Indebtedness is impaired or
shall fear deterioration, removal or waste of any of the Collateral; or (e)
if there is filed or issued a levy or writ of attachment or garnishment or
other like judicial process upon the undersigned (or any of them) or any
guarantor or any of the Collateral, including without limit, any accounts of
the undersigned (or any of them) or any guarantor with the Bank, then the
Bank, upon the occurrence of any of these events (each a "Default"), may at
its option and without prior notice to the undersigned (or any of them),
declare any or all of the Indebtedness to be immediately due and payable
(notwithstanding any provisions contained in the evidence of it to the
contrary), sell or liquidate all or any portion of the Collateral, set off
against the Indebtedness any amounts owing by the Bank to the undersigned (or
any of them), charge interest at the default rate provided in the document
evidencing the relevant Indebtedness and exercise any one or more of the
rights and remedies granted to the Bank by any agreement with the undersigned
(or any of them) or given to it under applicable law. In addition, if this
Note is secured by a deed of trust or mortgage covering real property, then
the trustor or mortgagor shall not mortgage or pledge the mortgaged premises
as security for any other Indebtedness or obligations. This Note, together
with all other Indebtedness secured by said deed of trust or mortgage, shall
become due and payable immediately, without notice, at the option of the
Bank, (a) if said trustor or mortgagor shall mortgage or pledge the mortgaged
premises for any other Indebtedness or obligations or shall convey, assign or
transfer the mortgaged premises by deed, installment sale contract
instrument, or (b) if the title to the mortgaged premises shall become vested
in any other person or party in any manner whatsoever, or (c) if there is any
disposition (through one or more transactions) of legal or beneficial title
to a controlling interest of said trustor or mortgagor. All payments under
this Note shall be in immediately available United States funds, without
setoff or counterclaim.
If this Note is signed by two or more parties (whether by all as makers or by
one or more as an accommodation party or otherwise), the obligations and
undertakings under this Note shall be that of all and any two or more jointly
and also of each severally. This Note shall bind the undersigned, and the
undersigned's respective heirs, personal representatives, successors and
assigns.
The undersigned waive(s) presentment, demand, protest, notice of dishonor,
notice of demand or intent to demand, notice of acceleration or intent to
accelerate, and all other notices and agree(s) that no extension or
indulgence to the undersigned (or any of them) or release, substitution or
nonenforcement of any security, or release or substitution of any of the
undersigned, any guarantor or any other party, whether with or without
notice, shall affect the obligations of any of the undersigned. The
undersigned waive(s) all defenses or right to discharge available under
Section 3-605 of the California Uniform Commercial Code and waive(s) all
other suretyship defenses or right to discharge. The undersigned agree(s)
that the Bank has the right to sell, assign, or grant participations, or any
interest, in any or all of the Indebtedness, and that, in connection with
this right, but without limiting its ability to make other disclosures to the
full extent allowable, the Bank may disclose all documents and information
which the Bank now or later has relating to the undersigned or the
Indebtedness. The undersigned agree(s) that the Bank may provide information
relating to the Note or to the undersigned to the Bank's parent, affiliates,
subsidiaries and service providers.
The undersigned agree(s) to reimburse the holder or owner of this Note for
any and all costs and expenses (including without limit, court costs, legal
expenses and reasonable attorney fees, whether inside or outside counsel is
used, whether or not suit is instituted and, if suit is instituted, whether
at the trial court level, appellate level, in a bankruptcy, probate or
administrative proceeding or otherwise) incurred in collecting or attempting
to collect this Note or incurred in any other matter or proceeding relating
to this Note.
The undersigned acknowledge(s) and agree(s) that there are no contrary
agreements, oral or written, establishing a term of this Note and agree(s)
that the terms and conditions of this Note may not be amended, waived or
modified except in a writing signed by an officer of the Bank expressly
stating that the writing constitutes an amendment, waiver or modification of
the terms of this Note. As used in this Note, the word "undersigned" means,
individually and collectively, each maker, accommodation party, indorser and
other party signing this Note in a similar capacity. If any provision of this
Note is unenforceable in whole or part for any reason, the remaining
provisions shall continue to be effective. THIS NOTE IS MADE IN THE STATE OF
CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
THE MAXIMUM INTEREST RATE SHALL NOT EXCEED THE HIGHEST APPLICABLE USUARY
CEILING.
THE UNDERSIGNED AND THE BANK ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A
CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED, EACH PARTY, AFTER CONSULTING
(OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE,
KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO
TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE OR THE INDEBTEDNESS.
THIS NOTE IS SUBJECT TO THE TERMS OF A LETTER AGREEMENT DATED MAY 1, 1996.
For Corporations, Partnerships, Trust or Estates
▇▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC. By: Its:
____________________________ ___________________ ____________________
OBLIGOR NAME TYPED/PRINTED SIGNATURE OF TITLE
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PKWY, #220 By: /s/ (▇▇▇▇▇ ▇. ▇▇▇: PRESIDENT &
▇▇▇▇▇▇▇) (CHAIRMAN)
____________________________ ___________________ ____________________
STREET ADDRESS SIGNATURE OF TITLE
PLEASANTON By: Its:
____________________________ ___________________ ____________________
CITY SIGNATURE OF TITLE
CA 94566 By: /s/ (▇▇▇▇▇ ▇▇▇▇) Its: C.F.O.
____________________________ ___________________ ____________________
STATE ZIP CODE SIGNATURE OF TITLE
For Individuals or Sole Proprietorships
Name(s) of Obligor(s) Signature(s) of
(Type or Print) Obligor(s)
_____________________ ____________________
_____________________ _____________________ ____________________
STREET ADDRESS
_____________________ _____________________ ____________________
CITY
_____________________ _____________________ ____________________
STATE ZIP CODE
______________________________________________________________________________
| For Bank Use Only | CCAR # |
|_________________________________________|____________________________________|
|Loan Officer Initials | Loan Group Name | Obligor(s) Name |
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ | HIGH TECH | ▇▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC. |
|______________________|__________________|____________________________________|
|Loan Officer I.D. No. | Loan Group No. | Obligor # | Note # | Amount |
| 48703 | 95820 | | | $5,000,000.00 |
|______________________|__________________|___________|________|_______________|
[Logo]
CORPORATION RESOLUTIONS AND INCUMBENCY CERTIFICATION -
AUTHORITY TO PROCURE LOANS
________________________________________________________________________________
I certify that I am the duly elected and qualified Secretary of ▇▇▇▇▇▇▇▇▇▇
ENTERPRISES, INC. a CALIFORNIA corporation (the "Corporation") and the keeper
of the records of the Corporation; that the following is a true and correct
copy of resolutions duly adopted by the Board of Directors of the Corporation
in accordance with its bylaws and applicable statutes on or as of MAY 6, 1996;
Copy of Resolutions:
Be it Resolved, That:
1. Any (insert number required to sign) (TWO) of the following (insert
titles only) CEO, CFO, EXECUTIVE V.P. of the Corporation are/is authorized,
for, on behalf of, and in the name of the Corporation to:
(a) Negotiate and procure loans, letters of credit and other credit or
financial accomodations from COMERICA BANK-CALIFORNIA (the "Bank")
up to an amount not exceeding $5 MILLION (if left blank, then
unlimited);
(b) Discount with the Bank commercial or other business paper belonging to
the Corporation made or drawn by or upon third parties, without limit
as to amount;
(c) Purchase, sell, exchange, assign, endorse for transfer and/or deliver
certificates and/or instruments representing stocks, bonds, evidences
of indebtedness or other securities owned by the Corporation, whether
or not registered in the name of the Corporation;
(d) Give security for any liabilities of the Corporation to the Bank by
grant, security interest, assignment, lien, deed of trust or
mortgage upon any real or personal property, tangible or intangible of
the Corporation; and
(e) Execute and deliver in form and content as may be required by the Bank
any and all notes, evidences of indebtedness, applications for letters
of credit, guaranties, subordination agreements, loan and security
agreements, financing statements, assignments, liens, deeds of trust,
mortgages, trust receipts and other agreements, instruments or
documents to carry out the purposes of these Resolutions, any or all
of which may relate to all or to substantially all of the Corporation's
property and assets.
2. Said Bank be and it is authorized and directed to pay the proceeds of any
such loans or discounts as directed by the persons so authorized to sign,
whether so payable to the order of any of said persons in their individual
capacities or not, and whether such proceeds are deposited to the individual
credit of any of said persons or not;
3. Any and all agreements, instruments and documents previously executed and
acts and things previously done to carry out the purposes of these
Resolutions are ratified, confirmed and approved as the act or acts of the
Corporation.
4. These Resolutions shall continue in force, and the Bank may consider the
holders of said offices and their signatures to be and continue to be as set
forth in a certified copy of these Resolutions delivered to the Bank, until
notice to the contrary in writing is duly served on the Bank (such notice to
have no effect on any action previously taken by the Bank in reliance on
these Resolutions).
5. Any person, corporation or other legal entity dealing with the Bank may
rely upon a certificate signed by an officer of the Bank to effect that these
Resolutions and any agreement, instrument or document executed pursuant to
them are still in full force and effect and binding upon the Corporation.
6. The Bank may consider the holders of the offices of the Corporation and
their signatures, respectively, to be and continue to be as set forth in the
Certificate of the Secretary of the Corporation until notice to the contrary
in writing is duly served on the Bank.
I further certify that the above Resolutions are in full force and effect as
of the date of this Certificate; that these Resolutions and any borrowings or
financial accommodations under these Resolutions have been properly noted in
the corporate books and records, and have not been rescinded, annulled,
revoked or modified; that neither the foregoing Resolutions nor any actions
to be taken pursuant to them are or will be in contravention of any provision
of the articles of incorporation or bylaws of the Corporation or of any
agreement, indenture or other instrument to which the Corporation is a party
or by which it is bound; and that neither the articles of incorporation nor
bylaws of the Corporation nor any agreement, indenture or other instrument to
which the Corporation is a party or by which it is bound require the vote or
consent of shareholders of the Corporation to authorize any act, matter or
thing described in the foregoing Resolutions.
I further certify that the following named persons have been duly elected to
the offices set opposite their respective names, that they continue to hold
these offices at the present time, and that the signatures which appear below
are the genuine, original signatures of each respectively:
(PLEASE SUPPLY GENUINE SIGNATURES OF AUTHORIZED SIGNERS BELOW)
NAME (Type or Print) TITLE SIGNATURE
▇▇▇▇▇ ▇▇▇▇ CFO /s/ ▇▇▇▇▇ ▇▇▇▇
______________________ ______________________ ______________________
______________________ ______________________ ______________________
______________________ ______________________ ______________________
▇▇▇ ▇▇▇▇▇▇▇ EXECUTIVE V.P. /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________ ______________________ ______________________
______________________ ______________________ ______________________
▇▇▇▇▇ ▇▇▇▇▇▇▇ CEO /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________ ______________________ ______________________
In Witness Whereof, I have affixed my name as Secretary and have caused the
corporate seal of said Corporation to be affixed this 15th day of May, 1996.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________
Secretary
▇▇▇ ▇▇▇▇▇▇▇
___________________________________________________________________
| |
| The Above Statements are Correct. ____________________________ |
| SIGNATURE OF OFFICER OR |
| DIRECTOR OF, IF NONE, A |
| SHAREHOLDER OTHER THAN |
| SECRETARY WHEN SECRETARY IS |
| AUTHORIZED TO SIGN ALONE |
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▇▇▇▇▇▇▇▇'S AUTHORIZATION
DATE: APRIL 30, 1996
_____________________
I (we) hereby authorize and direct COMERICA BANK-CALIFORNIA ("Bank") to pay
to (UNDISBURSED) $
___________________________________________ ____________________________
to ___________________________________________ $____________________________
to ___________________________________________ $____________________________
to ___________________________________________ $____________________________
of the proceeds of my (our) loan from the Bank evidenced by a note in the
original principal amount of $5,000,000.00, dated APRIL 30, 1996.
Borrower(s): ▇▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC.
____________________________
By: /s/ ▇▇▇▇▇ ▇▇▇▇ Its: CFO
_______________________________ ______________________________
Signature of ▇▇▇▇▇ ▇▇▇▇ Title (if applicable)
By: Its:
_______________________________ ______________________________
Signature of Title (if applicable)
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Its: CEO
_______________________________ ______________________________
Signature of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title (if applicable)
By: Its:
_______________________________ ______________________________
Signature of Title (if applicable)
INTEREST/FEES
Interest on the line of credit shall be computed on the basis of a 360-day
year for the actual number of days the principal is outstanding, at the
Bank's Prime Rate. Accrued interest shall be due and payable on the 1st day
of each month commencing June 1, 1996, until the Maturity Date when all
amounts outstanding shall be due and payable in full.
Borrower shall pay to Bank a commitment fee for the line of credit equal to
.35% per annum which commitment fee shall be due and payable as follows:
$17,500 upon execution of the documents herein and $14,583.33 on May 1, 1997.
REPRESENTATIVES AND WARRANTIES:
▇▇▇▇▇▇▇▇ makes the following representatives and warranties to Bank, which
representatives and warranties shall survive the execution of this letter.
Borrower is a corporation duly organized and existing and in good standing
under the laws of the State of California, and is qualified or licensed to do
business in all jurisdictions in which it conducts its business.
This Agreement has been duly authorized, executed and delivered, and is a valid
and binding agreement of Borrower.
There are no pending or threatened actions, suits or proceedings before any
court or administrative agency which may adversely affect the financial
condition or operation of Borrower other than those heretofore disclosed by
Borrower to Bank in writing.
All financial and other information submitted by Borrower to Bank is true and
correct in all material respects and presents fairly the financial condition
of Borrower, and has been prepared in accordance with generally accepted
accounting principals consistently applied. As of the date of such financial
statements, and since such date, there has been no material adverse change in
the condition or operation of Borrower, nor has Borrower mortgaged, pledged
or granted a security interest in or encumbered any of ▇▇▇▇▇▇▇▇'s assets or
properties except as permitted by this letter.
The obligations of Borrower under this letter or any promissory notes
executed in connection herewith are not subordinated in right of payment to
any other obligation of Borrower.
Borrower possesses, and will hereafter possess, all permits, memberships,
franchises, contracts and licenses required and all trademark rights trade
names, trade name rights, patents, 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.
Borrower is in compliance in all material respects with all applicable
provisions of the Employee Retirement Income Security Act of 1974 (ERISA),
and no Reportable Event, as defined in said Act, has occured and is
continuing with respect to any Plan initiated by Borrower thereunder.
CONDITIONS PRECEDENT:
Borrower shall execute any and all promissory notes and other loan documents
deemed necessary by Bank to evidence the Revolving Line of Credit and all
terms and conditions of this letter.
COVENANTS:
So long as the Revolving Line of Credit remains available or any indebtedness
remains outstanding, borrower shall, unless Bank otherwise consents in
writing:
Punctually pay (1) the interest and principal on any promissory notes
executed in connection with this letter at the times and place an in the
manner specified in said promissory notes; (2) any fees due hereunder at the
times and place and in the manner specified herein; and (3) immediately upon
demand by Bank, the principal amount by which ▇▇▇▇▇▇▇▇ has exceeded any
limitation on advances hereunder.
Maintain adequate books and accounts in accordance with generally accepted
accounting principals consistently applied, and permit any representative of
Bank, at any reasonable time, to inspect, audit and examine such books and
inspect the properties of Borrower.
Provide to Bank not later than 120 days after and as of the end of each
fiscal year, unqualified CPA audited financial statements.
Provide to Bank not later than 45 days after and as of the end of each fiscal
quarter the company's internally prepared financial statement and accounts
receivable aging report.
Maintain a Quick Ratio (defined as cash and accounts receivable divided by
current liabilities) not at any time less than 1.50 : 1.0.
Maintain Tangible Net Worth (defined as stockholders' equity plus
subordinated debt less any treasury stock and less any intangible assets) not
at any time less than $10,500,000.00 plus 75% of net quarterly profits and
100% of any new equity raised.
Maintain a ratio of Total Debt to Tangible Net Worth (defined as current
liabilities and non-current liabilities less subordinated debt divided by
Tangible Net Worth) not at any time greater than 0.75 : 1.0
Maintain profitable operations on a quarterly basis.
Borrower represents, warrants and covenants with Bank that Borrower will not,
without Bank's prior written consent:
Grant a security interest in or permit a lien, claim or encumbrance upon any
of Borrower's assets to any person, association, firm, corporation, entity or
governmental agency or instrumentality;
Permit any levy, attachment or restraint to be made affecting any of
Borrower's assets;
Permit any judicial officer or assignee to be appointed or to take possession
of any or all of ▇▇▇▇▇▇▇▇'s assets;
Not declare or pay any cash dividend on the capital stock of Borrower, or
purchase or acquire in any way for any considerations any shares of such
capital stock.
Not acquire through stock purchases, or otherwise, the assets or business of
any other person or entity, and not liquidate or dissolve, merge or
consolidate with any other person or entity by purchase, sale or otherwise
that would result in the violation of any financial covenants.
Not change the present character of ▇▇▇▇▇▇▇▇'s business or enter into any
transaction not in the usual course of ▇▇▇▇▇▇▇▇'s business.
Upon the violation by Borrower of any term or condition of this letter, or
upon the occurrence of any Event of Default as defined in any other document
executed by Borrower in connection with the Revolving Line of Credit, the
outstanding principal balance under the line of Credit, together with all
accrued and unpaid interest thereon, shall become immediately due and
payable, at Bank's option,
without presentment, demand or notice of dishonor, all of which are expressly
waived by Borrower. Borrower may be required, at Bank's sole discretion, to
provide cash security in an amount equal to the sum total of any letters of
credit outstanding. Bank shall have no obligation to make further advances
under the Revolving Line of Credit or make additional transactions under the
Letter of Credit subfacility; and Bank shall have all rights, powers and
remedies available under law or accorded by any promissory note or other loan
document executed in connection herewith.
No delay or failure on the part of the Bank to exercise any right, power or
remedy under this letter, or any other document executed in connection
herewith, or to declare a default hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Bank of any such right,
power or remedy preclude any other or further thereof or the exercise of any
other right power or remedy.
Borrower shall reimburse Bank for all costs and expenses, including
reasonable attorneys' fees, expended or incurred by Bank in enforcing the
terms hereof, in actions for declaratory relief in any other way related to
this letter, in collecting any sums which become due Bank on any promissory
note executed in connection with this Letter Agreement, and in the
protection, preservation or enforcement of any security interest granted by
Borrower to Bank.
This letter shall be binding on an inure to the benefit of the successors,
heirs and assigns of the parties, provided however, that Borrower may not
assist or transfer its interest hereunder without the prior written consent
of the Bank. Bank reserves the right to sell, assign, transfer, negotiate or
grant participation in all or any part of, or any interest in, Bank's rights
and benefits hereunder and under any promissory notes executed in connection
with this Letter Agreement or any collateral documents thereto. In
connection therewith Bank may disclose all documents and inform which Bank now
or hereafter may have relating to the Revolving Line of Credit, Borrower or
its business, any Guarantor hereunder or the business of such Guarantor, or
any collateral for the Revolving Line of Credit.
The undersigned agree(s) that the Bank may provide information relating to
this Letter Agreement or relating to the undersigned to the Bank's parent,
affiliates, subsidiaries and service providers.
This letter and all other documents executed in connection with this
Revolving Line of Credit shall be governed by the laws of the State of
California.
Your acknowledgment of this letter shall constitute acceptance of the
foregoing terms and conditions.
Sincerely,
COMERICA BANK-CALIFORNIA
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Vice President Date: May 1, 1996
-------------------
Acknowledged and accepted:
▇▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇▇▇▇ Date: 5/3/96
Title: CFO -------------------
---------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇ Date: 5/15/96
Title: President & Chairman -------------------
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FIRST MODIFICATION TO LETTER AGREEMENT - REVOLVING LINE OF CREDIT
This First Modification to the Letter Agreement - Revolving Line of
Credit (this "Modification") is entered into by and between ▇▇▇▇▇▇▇▇▇▇
ENTERPRISES, INC. ("Borrower") and Comerica Bank-California ("Bank") as of
this 20TH day of MAY 1996 at, San Jose, California.
RECITALS
A. Bank and Borrower have previously entered into or are concurrently
herewith entering into a Letter Agreement - Revolving Line of Credit (the
"Agreement") dated May 1, 1996.
▇. ▇▇▇▇▇▇▇▇ has requested, and Bank has agreed, to modify the
Agreement as set forth below:
INCORPORATION BY REFERENCE. The Agreement as modified hereby and the
Recitals are incorporated herein by this reference.
- Borrower shall be authorized to make loans to employees up to
$250,000 in aggregate.
LEGAL EFFECT. Except as specifically set forth in this Modification,
all of the terms and conditions of the Agreement remain in full force and
effect.
INTEGRATION. This is an integrated Modification and supersedes all
prior negotiations and agreements regarding the subject matter hereof. All
amendments hereto must be in writing and signed by the parties.
IN WITNESS WHEREOF, the parties have agreed as of the date first set
forth above.
COMERICA BANK-CALIFORNIA
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇, Vice President
▇▇▇▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Its: CFO
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: CEO
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