EXHIBIT 10.36
[LOGO OF IMPERIAL BANK]
PROMISSORY NOTE
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Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$931,485.75 09-30-1999 10-07-2002 613521 900 JMC
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Reference in the shaded area are for Lender's use only and do not limit the applicability of this
document to any particular loan or item.
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Borrower: ANCHOR PACIFIC UNDERWRITERS, INC. Lender: Imperial Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇., #400 East Bay Regional Office
Concord, CA 94520 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Principal Amount: $931,485.75 Initial Rate: 10.750% Date of Note: September 30, 1999
PROMISE TO PAY. ANCHOR PACIFIC UNDERWRITERS, INC. ("Borrower") promises to pay
to Imperial Bank ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Nine Hundred Thirty One Thousand Four Hundred
Eighty Five & 75/100 Dollars ($931,485.75), together with interest on the unpaid
principal balance from September 30, 1999, until paid in full.
PAYMENT. Subject to any payment changes resulting from changes in the index,
Borrower will pay this loan in 35 principal payments of $16,500.00 each and one
final principal and interest payment of $357,156.87. ▇▇▇▇▇▇▇▇'s first principal
payment is due November 7, 1999, and all subsequent principal payments are due
on the same day of each month after that. In addition, Borrower will pay regular
monthly payments of all accrued unpaid interest due as of each payment date.
▇▇▇▇▇▇▇▇'s first interest payment is due November 7, 1999, and all subsequent
interest payments are due on the same day of each month after that. ▇▇▇▇▇▇▇▇'s
final payment due October 7, 2002, will be for all principal and accrued
interest not yet paid. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate over a
year of 360 days, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance is outstanding. Borrower will
pay Lender at ▇▇▇▇▇▇'s address shown above or at such other place as Lender may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to any unpaid collection costs and any late
charges, then to any unpaid interest, and any remaining amount to principal.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Imperial Bank Prime Rate
(the "Index"). The Prime Rate is the rate announced by Lender as its Prime Rate
of Interest from time to time. Lender will tell Borrower the current Index rate
upon ▇▇▇▇▇▇▇▇'s request. Borrower understands that Lender may make loans based
on other rates as well. The interest rate change will not occur more often than
each day. The Index currently is 8.250%. The interest rate to be applied to the
unpaid principal balance of this Note will be at a rate of 2.500 percentage
points over the index, resulting in an initial rate of 10.750%. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. ▇▇▇▇▇▇▇▇ agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even upon
full prepayment of this Note, ▇▇▇▇▇▇▇▇ understands that Lender is entitled to a
minimum interest charge of $250.00. Other than ▇▇▇▇▇▇▇▇'s obligation to pay any
minimum interest charge, Borrower may pay without penalty all or a portion of
the amount owed earlier than it is due. Early payments will not, unless agreed
to by ▇▇▇▇▇▇ in writing, relieve ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇'s obligation to continue
to make payments under the payment schedule. Rather, they will reduce the
principal balance due and may result in Borrower making fewer payments.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this Note or
any agreement related to this Note, or in any other agreement or loan Borrower
has with Lender. (c) Any representation or statement made or furnished to Lender
by Borrower or on ▇▇▇▇▇▇▇▇'s behalf is false or misleading in any material
respect either now or at the time made or furnished. (▇) ▇▇▇▇▇▇▇▇ becomes
insolvent, a receiver is appointed for any part of ▇▇▇▇▇▇▇▇'s property, ▇▇▇▇▇▇▇▇
makes an assignment for the benefit of creditors, or any proceeding is commenced
either by Borrower or against Borrower under any bankruptcy or insolvency laws.
(e) Any creditor tries to take any of ▇▇▇▇▇▇▇▇'s property on or in which ▇▇▇▇▇▇
has a lien or security interest. This includes a garnishment of any of
▇▇▇▇▇▇▇▇'s accounts with ▇▇▇▇▇▇. (f) Any guarantor dies or any of the other
events described in this default section occurs with respect to any guarantor of
this Note. (g) A material adverse change occurs in Borrower's financial
condition, or ▇▇▇▇▇▇ believes the prospect of payment or performance of the
indebtedness is impaired. (h) Lender in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure.
If any default, other than a default in payment, is curable and if Borrower has
not been given a notice of a breach of the same provision of this Note within
the preceding twelve (12) months, it may be cured (and no event of default will
have occurred) if Borrower, after receiving written notice from Lender demanding
cure of such default: (a) cures the default within ten (10) days; or (b) if the
cure requires more than ten (10) days, immediately initiates steps which Lender
deems in ▇▇▇▇▇▇'s sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps sufficient
to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, ▇▇▇▇▇▇ may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon Borrower's failure to pay
all amounts declared due pursuant to this section, including failure to pay upon
final maturity, Lender, at its option, may also, if permitted under applicable
law, do one or both of the following: (a) increase the variable interest rate on
this Note to 7.500 percentage points over the Index, and (b) add any unpaid
accrued Interest to principal and such sum will bear interest therefrom until
paid at the rate provided in this Note (including any increased rate). Lender
may hire or pay someone else to help collect this Note if Borrower does not pay.
▇▇▇▇▇▇▇▇ also will pay Lender that amount. This includes, subject to any limits
under applicable law, ▇▇▇▇▇▇'s attorneys' fees and ▇▇▇▇▇▇'s legal expenses
whether or not there is a lawsuit, including attorneys' fees and legal expenses
for bankruptcy proceedings (including efforts to modify or vacate any automatic
stay or injunction), appeals, and any anticipated post-judgment collection
services. ▇▇▇▇▇▇▇▇ also will pay any court costs, in addition to all other sums
provided by law. This Note has been delivered to Lender and accepted by Lender
in the State of California. If there is a lawsuit, ▇▇▇▇▇▇▇▇ agrees upon ▇▇▇▇▇▇'s
request to submit to the jurisdiction of the courts of Los Angeles County, the
State of California. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ hereby waive the right to any jury
trial in any action, proceeding, or counterclaim brought by either ▇▇▇▇▇▇ or
Borrower against the other. (Initial Here JRD) This Note shall be governed by
and construed in accordance with the laws of the State of California.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $25.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, ▇▇▇▇▇▇▇▇'s accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and ▇▇▇▇▇ accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes ▇▇▇▇▇▇, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Note against any and all such accounts.
CREDIT TERMS AND CONDITIONS AGREEMENT. This Note is subject to the provisions of
the Credit Terms and Conditions Agreement dated September 30, 1997 and all
amendments thereto and replacements therefor.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive any
applicable statute of limitations, presentment, demand for payment, protest and
notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend (repeatedly
and for any length of time) this loan, or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect ▇▇▇▇▇▇'s security
interest in the collateral; and take any other action deemed necessary by Lender
without the consent of or notice to anyone. All such parties also agree that
▇▇▇▇▇▇ may modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made.
PROMISSORY NOTE Page 2
(Continued)
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PRIOR TO SIGNING THIS NOTE, ▇▇▇▇▇▇▇▇ READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. ▇▇▇▇▇▇▇▇ AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE.
BORROWER:
ANCHOR PACIFIC UNDERWRITERS, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Authorized Officer
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