COMMERCIAL SECURITY AGREEMENT (Premier Power California)
Exhibit
10.5
(Premier
Power California)
This COMMERCIAL SECURITY AGREEMENT
(this “Agreement”) is made
effective July 13, 2009, by and between PREMIER POWER RENEWABLE ENERGY, INC., a
California corporation (“Grantor”) and UMPQUA
BANK (“Lender”).
RECITALS
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A.
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Pursuant
to that certain Loan Agreement dated July 13, 2009, (the “Loan
Agreement”) by and between Lender and PREMIER POWER RENEWABLE
ENERGY, INC., a Delaware corporation ("Borrower"),
Lender has agreed to lend to Borrower, and Borrower has agreed to borrow
from Lender (i) a revolving line of credit in a principal amount not to
exceed Seven Million and 00/100 Dollars ($7,000,000.00) at any one time
outstanding (the “Line of
Credit”) and (ii) an Advised Guidance Line in an amount not to
exceed Five Million and 00/100 Dollars ($5,000,000.00) (the “Guidance Line”
and together with the Line of Credit, the “Loans” and each
a “Loan”).
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B.
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The
Loans shall be evidenced by (i) a Promissory Note (Line of Credit) in the
principal amount of Seven Million and No/100 Dollars ($7,000,000.00) (the
“Line of Credit
Note"), together with such additional promissory notes or
modification thereof as may be necessary to evidence advances under the
Guidance Line (the “Notes” and each
a “Note”).
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C.
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Grantor
is a wholly owned subsidiary of Borrower. As a condition to Lender's
willingness to make the Loans, Lender has required Grantor to grant to
Lender a security interest in the Collateral (as defined herein) for the
purpose of securing the Indebtedness (as defined
herein). Grantor will derive substantial direct and indirect
benefit from Lender’s making the Loans to
Borrower.
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AGREEMENT
NOW, THEREFORE, for good and valuable
consideration, receipt and adequacy of which are hereby acknowledged, Borrower
and Lender hereby agree as follows
1 GRANT OF SECURITY
INTEREST. For valuable consideration, Grantor hereby grants to
Lender a continuing security interest in all presently existing and hereafter
arising Collateral in order to secure prompt repayment of any and all
Indebtedness owed by Borrower to Lender and in order to secure prompt
performance by Grantor of each and all of its covenants and obligations under
this Agreement and otherwise created. Lender's security interest in the
Collateral shall attach to all Collateral without further act on the part of
Lender or Grantor. In the event that any Collateral, including
proceeds, is evidenced by or consists of Negotiable Collateral, Grantor,
immediately upon the request of Lender, shall (a) endorse or assign such
Negotiable Collateral to Lender, (b) deliver actual physical possession of such
Negotiable Collateral to Lender, and (c) ▇▇▇▇ conspicuously all of its records
pertaining to such Negotiable Collateral with a legend, in form and
substance satisfactory to Lender (and in the case of Negotiable
Collateral consisting of tangible chattel paper, immediately ▇▇▇▇ all such
tangible chattel paper with a conspicuous legend in form and substance
satisfactory to Lender), indicating that the Negotiable Collateral is subject to
the security interest granted to Lender hereunder. This Agreement is
the “Premier Power
California Security Agreement” described in the Loan
Agreement. Capitalized terms used but not defined herein shall have
the meanings ascribed in the Loan Agreement.
1
THE
RIDER TO SECURITY AGREEMENT EXECUTED BY NONBORROWER GRANTOR SHALL BE ATTACHED TO
AND MADE A PART OF THIS AGREEMENT.
2 DEFINITIONS. The
following words shall have the following meanings when used in this Agreement.
Terms not otherwise defined in this Agreement or the Loan Agreement shall have
the meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
2.1 Accounts. The word “Accounts” shall mean
and includes all presently existing and hereafter arising accounts, including
without limitation all accounts receivable, contract rights and other forms of
right to payment for monetary obligations or receivables for property sold or to
be sold, leased, licensed, assigned or otherwise disposed of, or for services
rendered or to be rendered (including without limitation all
health-care-insurance receivables) owing to Borrower, and any supporting
obligations, credit insurance, guaranties or security therefor, irrespective of
whether earned by performance.
2.2 Agreement. The word
"Agreement"
means this Commercial Security Agreement, as this Commercial Security
Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Commercial Security Agreement from time
to time.
2.3 Bank Expenses. The
words “Bank
Expenses” shall mean and includes: all reasonable costs or expenses
required to be paid by Grantor under this Agreement which are paid or advanced
by Lender; taxes and insurance premiums of every nature and kind of Borrower
paid by Lender; filing, recording, publication and search fees, appraiser fees,
auditor fees and costs, and title insurance premiums paid or incurred by Lender
in connection with Lender's transactions with Borrower; reasonable costs and
expenses incurred by Lender in collecting the Accounts (with or without suit) to
correct any default or enforce any provision of this Agreement, or in gaining
possession of, maintaining, handling, preserving, storing, shipping, selling,
disposing of, preparing for sale and/or advertising to sell the Collateral,
whether or not a sale is consummated; reasonable costs and expenses of suit
incurred by Lender in enforcing or defending this Agreement or any portion
hereof, including, but not limited to, expenses incurred by Lender in attempting
to obtain relief from any stay, restraining order, injunction or similar process
which prohibits Lender from exercising any of its rights or remedies; and
reasonable attorneys' fees and expenses incurred by Lender in advising,
structuring, drafting, reviewing, amending, terminating, enforcing, defending,
or concerning this Agreement, or any portion hereof or any agreement
related hereto, whether or not suit is brought. Bank Expenses shall
include Lender's reasonable in-house legal charges, and other legal and
attorney’s fees at reasonable rates.
2.4 Grantor's Books. The
words “Grantor’s
Books” shall mean and includes all of Grantor's books and records
including but not limited to minute books; ledgers; records indicating,
summarizing or evidencing Grantor's assets, (including, without limitation,
the Accounts) liabilities, business operations or financial
condition, and all information relating thereto, computer programs; computer
disk or tape files; computer printouts; computer runs; and other computer
prepared information and equipment of any kind.
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2.5 Collateral. The
word “Collateral” means the
following described property of Grantor (except to the extent certain property
of Grantor is specifically excluded from this Collateral definition by Lender in
writing, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located: All personal and fixture property of
every kind and nature including without limitation all Goods (including
Inventory, Equipment ,and any accessions thereto), Instruments (including
promissory notes), Documents, Accounts, Chattel Paper (whether tangible or
electronic), Deposit Accounts, Letter-of-Credit Rights (whether or not the
letter of credit is evidenced by a writing), Investment Property (including
securities) and all Supporting Obligations and proceeds, and all
General Intangibles (including Payment Intangibles).
In addition, the term “Collateral” includes
all the following, whether now owned or hereafter acquired, whether now existing
or hereafter arising, and wherever located:
(a) All
attachments, accessions, accessories, tools, parts, supplies, increases, and
additions to and all replacements of and substitutions for any property
described above.
(b)
All products and produce of any of the property
described in this Collateral definition.
(c) All
accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease, or other disposition of any of the
properly described in this Collateral definition.
(d)
All proceeds (including insurance proceeds) from the sale,
destruction, loss, or other disposition of any of the property described in this
Collateral definition.
(e) All
records and data relating to any of the property described in this Collateral
definition, whether in the form of a writing, photograph, microfilm, microfiche,
or electronic media, together with all of Grantor’s right, title, and interest
in and to all computer software required to utilize, create, maintain, and
process any such records or data on electronic media.
2.6 Debt. The
word “Debt”
shall mean, as of any applicable date of determination, all items of
indebtedness, obligation or liability of a Person, whether matured or unmatured,
liquidated or unliquidated, direct or indirect, absolute or contingent, joint or
several, that should be classified as liabilities in accordance with
GAAP. In the case of Borrower, the term "Debt" shall
include, without limitation, the Indebtedness.
2.7 Event of
Default. The words “Event of Default”
mean and include without limitation any of the Events of Default set forth
herein, in the Loan Agreement, or in any of the other Loan
Documents.
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2.8 General
Intangibles. The words “General
Intangibles”shall mean and includes all of Grantor’s present and future
general intangibles and other personal property (including without limitation
all payment intangibles, electronic chattel paper, contract rights, rights
arising under common law, statutes, or regulations, choses or things in action,
goodwill, patents, trade names, trademarks, servicemarks, copyrights,
blueprints, drawings, plans, diagrams, schematics, purchase orders, customer
lists, monies due or recoverable from pension funds, route lists, rights to
payment (including without limitation, rights to payment evidenced by chattel
paper, documents or instruments) and other rights under any royalty or licensing
agreements, infringement claims, software (including without limitation any
computer program that is embedded in goods that consist solely of the medium in
which the program is embedded), information contained on computer disks or
tapes, literature, reports, catalogs, insurance premium rebates, tax refunds,
and tax refund claims), other than goods, Accounts, Inventory, Negotiable
Collateral, and Grantor’s Books.
2.9 Guarantor. The word
"Guarantor"
means and includes without limitation each and all of the guarantors, sureties,
and accommodation parties in connection with the Indebtedness.
2.10
Indebtedness. The
word “Indebtedness” means
the indebtedness evidenced by the Loan Documents, including all principal and
interest and other amounts owing under the Note and any reimbursement agreements
entered into with respect to Letters of Credit, together with all other
indebtedness and costs and expenses for which Borrower is responsible under this
Agreement or under the Loan Documents. In addition, the word “Indebtedness”
includes all other loans, advances, Letter of Credit Obligations, overdrafts,
debts, liabilities (including, without limitation, any and all amounts charged
to Borrower’s loan accounts pursuant to any agreement authorizing Lender to
charge Borrower’s loan accounts), obligations, lease payments, guaranties,
covenants and duties owing by Borrower to Lender of any kind and description
whether advanced pursuant to or evidenced by this Agreement; by any note or
other instrument; or by any other agreement between Lender and Borrower and
whether or not for the payment of money, whether direct or indirect, absolute or
contingent, due or to become due now existing or hereafter arising, including,
without limitation, any interest, fees, expenses, costs and other amounts owed
to Lender that but for the provisions of the United States Bankruptcy Code would
have accrued after the commencement of any Insolvency Proceeding, and including,
without limitation, any debt, liability, or obligations owing from Borrower to
others which Lender may have obtained by assignment, participation, purchase or
otherwise, and further including, without limitation, all interest not paid when
due and all Bank Expenses which Borrower is required to pay or reimburse by this
Agreement, by law, or otherwise. The word “Indebtedness” shall
also include all obligations, debts and liabilities, plus interest thereon, of
Borrower to Lender, as well as all claims by Lender against Borrower, whether
existing now or later; whether they are voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquidated;
whether Borrower may be liable individually or jointly with others; whether
Borrower may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter may
become barred by any statute of limitations; and whether such indebtedness may
be or hereafter may become otherwise unenforceable.
2.11
Insolvency
Proceeding. The words “Insolvency
Proceeding” shall mean and includes any proceeding or case commenced by
or against Borrower or Grantor, or any guarantor of the Indebtedness, or any of
Grantor’s account debtors, under any provisions of the United States Bankruptcy
Code, as amended, or any other bankruptcy or insolvency law, including, but not
limited to assignments for the benefit of creditors, formal or informal
moratoriums, composition or extensions with some or all creditors, any
proceeding seeking a reorganization, arrangement or any other relief under the
United States Bankruptcy Code, as amended, or any other bankruptcy or insolvency
law.
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2.12
Inventory. The
word “Inventory” shall mean
and includes all present and future inventory in which Grantor has any interest,
including, but not limited to, goods held by Grantor for sale or lease or to be
furnished under a contract of service and all of Grantor’s present and future
raw materials, work in process, finished goods (including without limitation any
computer program embedded in any of the foregoing goods and any supporting
information provided in connection therewith that (i) is associated with the
goods in such a manner that the program customarily is considered part of the
goods or that (ii) by becoming the owner of the goods, a person acquires a right
to use the program in connection with the goods), together with any advertising
materials and packing and shipping materials, wherever located and any documents
of title representing any of the above, and any equipment, fixtures or other
property used in the storing, moving, preserving, identifying, accounting for
and shipping or preparing for the shipping of inventory,
and any and all other items hereafter acquired
by Grantor by way of substitution, replacement, return, repossession or
otherwise, and all additions and accessions thereto, and the resulting product
or mass, and any documents of title respecting any of the above.
2.13
Letter of Credit
Obligations. The words “Letter of Credit
Obligations” shall mean, as of any applicable date of determination, the
sum of the undrawn amount of any letter(s) of credit issued by Lender upon the
application of and/or for the account of Grantor, plus any unpaid reimbursement
obligations owing by Grantor to Lender in respect of any such letter(s) of
credit.
2.14 Negotiable Collateral. The
words “Negotiable
Collateral” shall mean and include all of Grantor's present and future
letters of credit, advises of credit, letter-of-credit rights, certificates of
deposit, notes, drafts, money, documents (including without limitation all
negotiable documents), instruments (including without limitation all promissory
notes), tangible chattel paper or any other similar property.
2.15 Person or person. The
word “Person”
or “person”
shall mean and includes any individual, corporation, partnership, joint
venture, firm, association, trust, unincorporated association, joint
stock company, government, municipality, political subdivision or agency or
other entity.
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OBLIGATIONS OF
GRANTOR. Grantor warrants and covenants to Lender as
follows:
3.1 Perfection Of Security
Interest. Grantor agrees to execute such financing statements
and to take whatever other actions, including but not limited to delivery of
documents of title and warehouse receipts, that are reasonably requested by
Lender to perfect and continue Lender’s security interest in the Collateral.
Upon request of Lender, Grantor will deliver to Lender any and all of the
documents evidencing or constituting the Collateral, and Grantor will note
Lender’s interest upon any and all chattel paper if not delivered to Lender for
possession by Lender. Grantor hereby appoints Lender as its attorney-in-fact
(which appointment is coupled with an interest and is irrevocable) for the
purpose of executing any documents necessary to perfect or to continue the
security interest granted in this Agreement. Lender may at any time, and without
further authorization from Grantor, file a carbon, photographic or other
reproduction of any financing statement or of this Agreement for use as a
financing statement. Grantor will reimburse Lender for all reasonable expenses
for the perfection and the continuation of the perfection of Lenders security
interest in the Collateral. Grantor promptly will notify Lender before any
change in Grantor’s name including any change to the assumed business names of
Grantor. This is a continuing Agreement and will continue in effect until the
Indebtedness and Lender’s obligation to make further Advances has
terminated.
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3.2 No Violation. The
execution and delivery of this Agreement will not violate any law or agreement
governing Grantor or to which Grantor is a party, and its certificate or
articles of incorporation and bylaws do not prohibit any term or condition of
this Agreement.
3.3 Enforceability of
Collateral. To the extent the Collateral consists of Accounts,
Chattel Paper, or General Intangibles, the Collateral is legally enforceable in
accordance with its terms, is genuine, and complies with applicable laws
concerning form, content and manner of preparation and execution, and all
persons appearing to be obligated on the Collateral have authority and capacity
to contract and are in fact obligated as they appear to be on the Collateral. At
the time any Account becomes subject to a security interest in favor of Lender,
the Account shall be a good and valid Account representing an undisputed, bona
fide indebtedness incurred by the account debtor, and in the case of accounts
receivable, for merchandise held subject to delivery instructions or theretofore
shipped or delivered pursuant to a contract of sale, or for services theretofore
performed by Grantor with or for the account debtor there shall be no setoffs or
counterclaims against any such account; and no agreement under which any
deductions or discounts may be claimed shall have been made with the account
debtor except those disclosed to Lender in writing.
3.4 Location of the
Collateral. Grantor, upon written request of Lender, will
deliver to Lender in form reasonably satisfactory to Lender a schedule of real
properties and Collateral locations relating to Grantor’s operations, including
without limitation the following: (a) all real property owned or
being purchased by Grantor; (b) all real property being rented or leased by
Grantor; (c) all storage facilities owned, rented, leased, or being used by
Grantor; and (d) all other properties where Collateral is or may be located.
Except in the ordinary course of its business (which shall include, without
limitation, te disposition of worn, damaged, or obsolete Equipment, and
Equipment no longer used by Grantor), Grantor shall not remove the Collateral
from its existing locations without the prior written consent of Lender, which
consent shall not be unreasonably withheld, conditioned or delayed.
3.5 Removal of Collateral. Grantor
shall keep the Collateral (or to the extent the Collateral consists of
intangible property such as Accounts, the records concerning the Collateral) at
Grantor’s principal place of business, or at such other locations as such
Collateral is currently located, or as may be reasonably acceptable to Lender.
Except in the ordinary course of its business, including, without limitation,
the sales of Inventory, Grantor shall not remove, in any given calendar year,
Collateral having an aggregate value in excess of Twenty-Five Thousand Dollars
($25,000) from its existing locations without the prior written consent of
Lender which consent shall not be unreasonably withheld, conditioned or delayed.
To the extent that the Collateral consists of vehicles, or other titled
property, Grantor shall not take or permit any action which would require
application for certificates of title for the vehicles outside the State of
California, without the prior written consent of Lender which consent shall not
be unreasonably withheld, conditioned or delayed.
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3.6 Transactions Involving
Collateral. Except for Inventory sold or Accounts collected in
the ordinary course of Grantor’s business, and as otherwise expressly provided
herein, Grantor shall not sell, offer to sell, or otherwise transfer or dispose
of the Collateral in any calendar year of an aggregate value in excess of
Twenty-Five Thousand Dollars ($25,000). While Grantor is not in
default under this Agreement, Grantor may sell Inventory, but only in the
ordinary course of its business and only to buyers who qualify as a buyer in the
ordinary course of business. A sale in the ordinary course of
Grantor’s business does not include a transfer in partial or total satisfaction
of a debt or any bulk sale. Except for Approved Prior Liens, Grantor shall not
pledge, mortgage, encumber or otherwise permit the Collateral to be subject to
any lien, security interest, encumbrance, or charge, other than the security
interest provided for in this Agreement, without the prior written consent of
Lender, which consent shall not be unreasonably withheld, conditioned or
delayed. This includes security interests even if junior in right to the
security interests granted under this Agreement. Unless waived by Lender, all
proceeds from any disposition of the Collateral not permitted hereunder, shall
be held in trust for Lender and shall not be commingled with any other funds;
provided however, this requirement shall not constitute consent by Lender to any
sale or other disposition. Upon receipt, Grantor shall immediately deliver any
such proceeds to Lender or use such proceeds to purchase replacement
Collateral.
3.7 Title. Grantor
represents and warrants to Lender that, except for the lien of this Agreement
and the Approved Prior Liens, it holds good and marketable title to the
Collateral, free and clear of all liens and encumbrances, other than liens for
taxes not yet payable. To the best of Grantor’s knowledge, no financing
statement covering any of the Collateral is on file in any public office other
than those which reflect the security interest created by this Agreement or to
which Lender has specifically consented. Grantor shall defend Lender’s rights in
the Collateral against the claims and demands of all other persons.
3.8 Collateral Schedules and
Locations. As often as Lender shall require, and insofar as
the Collateral consists of Accounts and General Intangibles, Grantor shall
deliver to Lender schedules of such Collateral, including such information as
Lender may require, including without limitation names and addresses of account
debtors and agings of Accounts and General Intangibles. Insofar as the
Collateral consists of Inventory, Grantor shall deliver to Lender, as often as
Lender shall require, such lists, descriptions, and designations of such
Collateral as Lender may reasonably require to identify the nature, extent, and
location of such Collateral. Such information shall be submitted for Grantor and
each of its subsidiaries or related companies.
3.9 Maintenance and Inspection of
Collateral. Grantor shall maintain all tangible Collateral in
good condition and repair, ordinary wear and tear and damage by casualty
excluded. Grantor will not intentionally commit or willingly permit damage to or
destruction of the Collateral or any part of the Collateral. Lender and its
designated representatives and agents shall have the right at all reasonable
times to examine, inspect, and audit the Collateral wherever located. Grantor
shall immediately notify Lender of all cases involving the return, rejection,
repossession, loss or damage of or to any Collateral in excess of Twenty-Five
Thousand Dollars ($25,000) in any given instance; of any request for credit or
adjustment or of any other dispute arising with respect to the Collateral in
excess of Twenty-Five Thousand Dollars ($25,000) in any given instance; and
generally of all happenings and events materially adversely affecting the
Collateral or the value or the amount of the Collateral.
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3.10 Taxes, Assessments and
Liens. Grantor will pay when due all taxes, assessments and
liens upon the Collateral, its use or operation, upon this Agreement, upon any
promissory note or notes evidencing the Indebtedness, or upon any of the other
Loan Documents. Grantor may withhold any such payment or may elect to contest
any lien if Grantor is in good faith conducting an appropriate proceeding to
contest the obligation to pay and so long as Lender’s interest in the Collateral
is not jeopardized in Lender’s sole opinion. If the Collateral is subjected to a
lien which is not discharged within fifteen (15) days, Grantor shall deposit
with Lender cash, a sufficient corporate surety bond or other security
satisfactory to Lender in an amount adequate to provide for the discharge of the
lien plus any interest, costs, attorneys’ fees or other charges that are likely
to accrue as a result of foreclosure or sale of the Collateral. In any contest
Grantor shall defend itself and Lender and shall satisfy any final adverse
judgment before enforcement against the Collateral. Grantor shall name Lender as
an additional obligee under any surety bond furnished in the contest
proceedings.
3.11 Compliance With Governmental
Requirements. Grantor shall materially comply promptly with
all laws, ordinances, rules and regulations of all governmental authorities, now
or hereafter in effect, applicable to the ownership, production, disposition, or
use of the Collateral. Grantor may contest in good faith any such law, ordinance
or regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Lender’s interest in the Collateral, in Lender’s
reasonable opinion, is not jeopardized.
3.12 Hazardous
Substances. Grantor represents end warrants that, the
Collateral never has been, during Grantor’s ownership thereof, and never will be
so long as this Agreement remains a lien on the Collateral, except in compliance
with applicable laws, used for the generation, manufacture, storage,
transportation, treatment, disposal, release, or threatened release of any
hazardous waste or substance, as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended, 42
U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99499 (“▇▇▇▇”), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., Chapters 6.5 through 7.7 of
Division 20 of the California Health and Safety Code, Section 25100, et seq., or
other applicable state or Federal laws, rules, or regulations adopted pursuant
to any of the foregoing. The terms “hazardous waste” and “hazardous substance”
shall also include, without limitation, petroleum and petroleum by-products or
any fraction thereof and asbestos. The representations and warranties contained
herein are based on Grantor’s due diligence in investigating the Collateral for
hazardous wastes and substances. Grantor hereby: (a) releases and
waives any future claims against Lender for indemnity or contribution in the
event Grantor becomes liable for cleanup or other costs under any such laws; and
(b) agrees to indemnify and hold harmless Lender against any and all claims and
losses resulting from a breach of this provision of this Agreement. This
obligation to indemnify shall survive the payment of the Indebtedness and the
satisfaction of this Agreement.
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3.13 Maintenance of Casualty
Insurance. Grantor shall procure and maintain all risks
insurance, including without limitation fire, theft and liability coverage,
together with such other insurance as Lender may reasonably require with respect
to the Collateral, in form, amounts, coverages and basis reasonably acceptable
to Lender and issued by a company or companies reasonably acceptable to
Lender. Grantor, upon written request of Lender, will deliver to
Lender from time to time the policies or certificates of insurance in form
reasonably satisfactory to Lender, including, to the extent generally available,
stipulations that coverages will not be cancelled or diminished without at least
ten (10) days’ prior written notice to Lender and not including any disclaimer
of the insurer’s liability for failure to give such a notice. Each insurance
policy also shall include an endorsement providing that coverage in favor of
Lender will not be impaired in any way by any act, omission or default of
Grantor or any other person. In connection with all policies covering assets in
which Lender holds or is offered a security interest, Grantor will provide
Lender with such loss payable or other endorsements as Lender may reasonably
require. If Grantor at any time fails to obtain or maintain any
insurance as required under this Agreement, Lender may (but shall not be
obligated to) obtain such insurance as Lender deems appropriate, including if it
so chooses “single interest insurance,” which will cover only Lender’s interest
in the Collateral.
3.14 Application of Insurance
Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral in excess of Twenty-Five Thousand Dollars ($25,000) in
the aggregate during any given calendar year. Lender may make proof
of loss if Grantor fails to do so within fifteen (15) days of the
casualty. All proceeds of any insurance on the Collateral, including
accrued proceeds thereon, shall be held by Lender as part of the Collateral. If
Lender consents to repair or replacement of the damaged or destroyed Collateral,
Lender shall, upon satisfactory proof of expenditure, pay or reimburse Grantor
from the proceeds for the reasonable cost of repair or
restoration. If Lender does not consent to repair or replacement of
the Collateral, Lender shall retain a sufficient amount of the proceeds to pay
all of the Indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within nine
(9) months after their receipt and which Grantor has not committed to the repair
or restoration of the Collateral shall be used to prepay the
Indebtedness.
3.15 Insurance
Reserves. From and after the occurrence of an Event of Default
continuing beyond any applicable Cure Period, Lender may require Grantor to
maintain with Lender reserves for payment of insurance premiums, which reserves
shall be created by monthly payments from Grantor of a sum estimated by Lender
to be sufficient to produce, at least fifteen (15) days before the premium due
date, amounts equal to the insurance premiums to be paid. If fifteen (15) days
before payment is due, the reserve funds are insufficient, Grantor shall upon
written demand pay any deficiency to Lender. The reserve funds shall be held by
Lender as a general deposit and shall constitute a non-interest-bearing account
which Lender may satisfy by payment of the insurance premiums required to be
paid by Grantor as they become due. Lender does not hold the reserve funds in
trust for Grantor, and Lender is not the agent of Grantor for payment of the
insurance premiums required to be paid by Grantor. The responsibility for the
payment of premiums shall remain Grantor’s sole responsibility.
3.16 Insurance
Reports. Grantor, upon written request of Lender, shall
furnish to Lender reports on each existing policy of insurance showing such
information as Lender may reasonably request including the
following: (a) the name of the insurer; (b) the risks insured; (c)
the amount of the policy; (d) the property insured; (e) the then current value
on the basis of which insurance has been obtained and the manner of determining
that value; (f) the expiration date of the policy; and (g) confirmation of
Lender named as Loss Payee. In addition, Grantor shall upon request by Lender
(however not more often than annually) have an independent appraiser reasonably
satisfactory to Lender determine, as applicable, the cash value or replacement
cost of the Collateral.
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4
GRANTOR’S RIGHT TO POSSESSION
AND TO COLLECT ACCOUNTS. Until the exercise by Lender of
its remedies upon the occurrence of an Event of Default which continues beyond
any applicable Cure Period, and except as otherwise provided below
with respect to Accounts, Grantor may have possession of the tangible personal
property and beneficial use of all the Collateral and may use it in any lawful
manner not inconsistent with this Agreement or the Loan Documents, provided that
Grantor’s right to possession and beneficial use shall not apply to any
Collateral where possession of the Collateral by Lender is required by law to
perfect Lender’s security interest in such Collateral. Until otherwise notified
by Lender in writing, Grantor may collect any of the Collateral consisting of
Accounts. At any time after giving Grantor written notice of an Event
of Default, Lender may exercise its rights to collect the Accounts and to notify
account debtors to make payments directly to Lender for application to the
Indebtedness. If Lender at any time has possession of any Collateral, whether
before or after an Event of Default, Lender shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral if Lender
takes such action for that purpose as Grantor shall request or as Lender, in
Lender’s sole discretion, shall deem appropriate under the circumstances, but
failure to honor any request by Grantor shall not of itself be deemed to be a
failure to exercise reasonable care. Lender shall not be required to take any
steps necessary to preserve any rights in the Collateral against prior parties,
nor to protect, preserve or maintain any security interest given to secure the
Indebtedness.
5
EXPENDITURES BY
LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without limitation
all taxes, liens, security interests, encumbrances, and other claims, at any
time levied or placed on the Collateral. Lender also may (but shall
not be obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purposes
will then bear interest at the highest rate allowable under the Notes from the
date incurred or paid by Lender to the date of repayment by
Grantor. All such expenses shall become a part of the Indebtedness
and, at Lender’s option, will: (a) be payable on demand; (b) be added
to the balance of the Notes and be apportioned among and be payable with any
installment payments to become due during either: (i) the term of any
applicable insurance policy; or (ii) the remaining term of the Notes;
or (c) be treated as a balloon payment which will be due and payable at the
maturity of the Notes. This Agreement also will secure payment of
these amounts. Such right shall be in addition to all other rights
and remedies to which Lender may be entitled upon the occurrence of an Event of
Default.
6
EVENTS OF DEFAULT. Each of the
following shall constitute an Event of Default under this Agreement, to the
extent not cured during any applicable Cure Period:
6.1 Default on
Indebtedness. Failure of Borrowers to make any payment when
due on the Indebtedness, or to comply with or to perform any other term,
obligation, covenant, or condition contained in this Agreement, the Loan
Agreement, or in any of the other Loan Documents.
6.2 Default in Favor of Third
Parties. Borrowers, or any one of them defaults under any
loan, extension of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person that may
materially affect Borrower or Borrower’s ability to repay the Loans or perform
their respective obligations under this Agreement, the Loan Agreement, or any of
the other Loan Documents.
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6.3
False
Statements. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrowers under this Agreement, the Loan
Agreement or any of the other Loan Documents is false or misleading in any
material respect, either now or at the time made or furnished.
6.4
Defective
Collateralization. This Agreement, the Loan Agreement or any
of the other Loan Documents ceases to be in full force and effect (including
failure of any collateral documents to create a valid and perfected first
priority security interest or lien, subject only to the Approved Prior Liens) at
any time and for any reason.
6.5
Insolvency. The dissolution or
termination of any Borrower’s existence as a going business, the insolvency of
any Borrower, the appointment of a receiver for any part of any Borrower’s
property, any assignment for the benefit of creditors, any type of creditor
workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against any Borrower.
6.6
Creditor or Forfeiture
Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by
any creditor of Borrowers or by any governmental agency against the Collateral
or any other collateral securing the Indebtedness. This includes a garnishment
of any of Borrowers’ deposit accounts with Lender.
6.7
Adverse
Change. A material adverse change occurs (i) in Borrower
or any Subsidiary’s financial condition, or (ii) with respect to Borrower or any
Subsidiary which could reasonably be expected to result in the material
impairment of prospect of payment or performance of the Loans.
6.8 Insecurity. Lender,
in good faith, deems itself insecure.
6.9
Events
Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor dies or
becomes incompetent.
7
RIGHTS AND REMEDIES ON
DEFAULT. If an Event of Default occurs under this Agreement,
at any time thereafter, Lender shall have all the rights of a secured party
under the California Uniform Commercial Code. In addition and without
limitation, Lender may exercise any one or more of the following rights and
remedies:
7.1
Accelerate
Indebtedness. Lender may declare the entire Indebtedness,
including any prepayment penalties provided for in the Loan Documents,
immediately due and payable, without notice.
7.2
Assemble Collateral. Lender
may require Grantor to deliver to Lender all or any portion of the Collateral
and any and all certificates of title and other documents relating to the
Collateral. Lender may require Grantor to assemble the Collateral and
make it available to Lender at a place to be designated by
Lender. Lender also shall have full power to enter upon the property
of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the time of
repossession, Grantor agrees Lender may take such other goods, provided that
Lender makes reasonable efforts to return them to Grantor after
repossession.
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7.3 Sell the
Collateral. Lender shall have full power to sell,
lease, transfer, or otherwise deal with the Collateral or proceeds thereof in
its own name or that of Grantor. Lender may sell the Collateral at
public auction or private sale. Unless the Collateral threatens to decline
speedily in value or is of a type customarily sold on a recognized market,
Lender will give Grantor such notice as may be required by applicable law of the
time after which any private sale or any other intended disposition of the
Collateral is to be made. All expenses relating to the disposition of
the Collateral, including without limitation the expenses of retaking, holding,
insuring, preparing for sale and selling the Collateral, shall become a part of
the Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the highest rate allowable under the Notes from date of expenditure
until repaid.
7.4 Appoint
Receiver. To the extent permitted by
applicable law, Lender shall have the following rights and remedies regarding
the appointment of a receiver: (a) Lender may have a receiver
appointed as a matter of right to enforce any of the remedies provided herein;
(b) the receiver may be an employee of Lender and may serve without bond; and
(c) all fees of the receiver and his or her attorney shall become part of the
Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the highest rate allowable under the Notes from date of expenditure
until repaid.
7.5 Collect Revenues, Apply
Accounts. Lender, either itself or through a receiver, may
collect the payments, rents, income, and revenues from the Collateral. Lender
may at any time in its discretion transfer any Collateral into its own name or
that of its nominee and receive the payments, rents, income, and revenues
therefrom and hold the same as security for the Indebtedness or apply it to
payment of the Indebtedness in such order of preference as Lender may determine.
Insofar as the Collateral consists of accounts, general intangibles, insurance
policies, instruments, chattel paper, choses in action, or similar property,
Lender may demand, collect, receipt for, settle, compromise, adjust, ▇▇▇ for,
foreclose, or realize on the Collateral as Lender may determine, whether or not
Indebtedness or Collateral is then due. For these purposes, Lender may, on
behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to be
sent; and endorse notes, checks, drafts, money orders, documents of title,
instruments, and items pertaining to payment, shipment, or storage of any
Collateral. To facilitate collection, Lender may notify account
debtors and obligors on any Collateral to make payments directly to
Lender.
7.6 Obtain
Deficiency. If Lender chooses to sell any or all of the
Collateral, Lender may obtain a judgment against Grantor for any deficiency
remaining on the Indebtedness due to Lender after application of all amounts
received from the exercise of the rights provided in this Agreement. Grantor
shall be liable for a deficiency even if the transaction described in this
subsection is a sale of Accounts or Chattel paper.
7.7 Other Rights and Remedies.
Lender shall have all the rights and remedies of a secured creditor under the
provisions of the Uniform Commercial Code, as may be amended from time to time.
In addition, Lender shall have and may exercise any or all other rights and
remedies it may have available at law, in equity, or otherwise.
7.8 Cumulative Remedies. All of
Lender’s rights and remedies, whether evidenced by this Agreement or the
Guaranty or by any other writing, shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy
shall not exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor under this
Agreement, after Grantor’s failure to perform, shall not affect Lender’s right
to declare a default and to exercise its remedies.
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8
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part
of this Agreement:
8.1 Amendments. This
Agreement, together with the Loan Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
8.2 Applicable
Law. This Agreement has been delivered to Lender and accepted
by Lender in the State of California. If there is a lawsuit, Grantor agrees upon
Lenders request to submit to the jurisdiction of the courts of Sacramento
County, the State of California. This Agreement shall be governed by and
construed in accordance with the laws of the State of California.
8.3 Notices. All
notices required to be given to Grantor and Lender under this Agreement shall be
given in writing and shall be delivered as proscribed in Section 12.1 of the
Loan Agreement.
8.4 Attorneys’ Fees;
Expenses. Grantor agrees to pay upon demand all of Lender’s
reasonable costs and expenses, including reasonable attorneys’ fees and Lenders
legal expenses, incurred in connection with the enforcement of this
Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor shall pay the reasonable costs and expenses of such
enforcement. Costs and expenses include Lenders reasonable attorneys’ fees and
legal expenses whether or not there is a lawsuit, including reasonable
attorneys’ fees and legal expenses for bankruptcy proceedings (and including
efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Grantor also shall pay all court
costs and such additional fees as may be directed by the court.
8.5 Caption Headings. Caption headings in this
Agreement are for convenience purposes only and are not to be used to interpret
or define the provisions of this Agreement.
8.6 Incorporation Recitals.
All recitals set forth in the Recital section of this
Agreement are incorporated herein and are deemed to be true and correct as of
the Effective Date.
8.7 Power of
Attorney. Grantor hereby appoints Lender as its true and
lawful attorney-in-fact, irrevocably, with full power of substitution to do the
following: (a) to demand, collect, receive, receipt for, ▇▇▇ and
recover all sums of money or other property which may now or hereafter become
due, owing or payable from the Collateral; (b) to execute, sign and endorse any
and all claims, instruments, receipts, checks, drafts or warrants issued in
payment for the Collateral; (c) to settle or compromise any and all claims
arising under the Collateral, and, in the place and stead of Grantor, to execute
and deliver its release and settlement for the claim; and (d) to file any claim
or claims or to take any action or institute or take part in any proceedings,
either in its own name or in the name of Grantor, or otherwise, which in the
discretion of Lender may seem to be necessary or advisable. This
power is given as security for the Indebtedness, and the authority hereby
conferred is and shall be irrevocable and shall remain in full force and effect
until renounced by Lender. Lender agrees that this power of attorney
shall not be exercised until such time as Lender gives Grantor written notice of
an Event of Default and any applicable Cure Period has expired.
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8.8 Preference Payments. Any
monies Lender pays because of an asserted preference claim in Grantor’s
bankruptcy will become a part of the Indebtedness and, at Lender’s option, shall
be payable by Grantor as provided above in the “Expenditures By Lender”
paragraph of this Agreement.
8.9 Severability. If a
court of competent jurisdiction finds any provision of this Agreement to be
invalid or unenforceable as to any person or circumstance, such finding shall
not render that provision invalid or unenforceable as to any other persons or
circumstances. If feasible, any such offending provision shall be deemed to be
modified to be within the limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be stricken and all other
provisions of this Agreement in all other respects shall remain valid and
enforceable.
8.10 Successor
Interests. Subject to the limitations set forth above on
transfer of the Collateral, this Agreement shall be binding upon and inure to
the benefit of the parties, their successors and assigns.
8.11 Waiver. Lender
shall not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing and signed by Lender. No delay or omission
on the part of Lender in exercising any right shall operate as a waiver of such
right or any other right. A waiver by Lender of a provision of this Agreement
shall not prejudice or constitute a waiver of Lenders right otherwise to demand
strict compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender’s rights
or of any of Grantor’s obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
8.12 Jury Trial
Waiver.
GRANTOR
AND 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 AGREEMENT OR THE INDEBTEDNESS.
8.13 Judicial Reference
Provision. In the event the Jury Trial Waiver set forth in
Section 8.12
above is not enforceable, the parties elect to proceed under this Judicial
Reference Provision.
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8.13.1 With
the exception of the items specified in Section 8.13.03,
below, any controversy, dispute or claim (each, a “Claim”) between the
parties arising out of or relating to this Agreement, the Indebtedness, or any
of the Loan Documents, or any other document, instrument or agreement between
the undersigned parties (collectively in this Section, the “Bank Documents”),
will be resolved by a reference proceeding in California in accordance with the
provisions of Sections 638 et seq. of the California Code of Civil Procedure
(“CCP”), or
their successor sections, which shall constitute the exclusive remedy for the
resolution of any Claim, including whether the Claim is subject to the reference
proceeding. Except as otherwise provided in the Bank Documents, venue for the
reference proceeding will be in the state or federal court in the county or
district where the real property involved in the action, if any, is located or
in the state or federal court in the county or district where venue is otherwise
appropriate under applicable law (the “Court”).
8.13.2 The
matters that shall not be subject to a reference are the following: (i)
nonjudicial foreclosure of any security interests in real or personal property,
(ii) exercise of self-help remedies (including, without limitation, set-off),
(iii) appointment of a receiver and (iv) temporary, provisional or ancillary
remedies (including, without limitation, writs of attachment, writs of
possession, temporary restraining orders or preliminary injunctions). This
reference provision does not limit the right of any party to exercise or oppose
any of the rights and remedies described in clauses (i) and (ii) or to seek or
oppose from a court of competent jurisdiction any of the items described in
clauses (iii) and (iv). The exercise of, or opposition to, any of those items
does not waive the right of any party to a reference pursuant to this reference
provision as provided herein.
8.13.3 The
referee shall be a retired judge or justice selected by mutual written agreement
of the parties. If the parties do not agree within ten (10) days of a written
request to do so by any party, then, upon request of any party, the referee
shall be selected by the Presiding Judge of the Court (or his or her
representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would
result if ex parte relief is not granted. Pursuant to CCP § 170.6,
each party shall have one peremptory challenge to the referee selected by the
Presiding Judge of the Court (or his or her representative).
8.13.4 The
parties agree that time is of the essence in conducting the reference
proceedings. Accordingly, the referee shall be requested, subject to change in
the time periods specified herein for good cause shown, to (i) set the matter
for a status and trial-setting conference within fifteen (15) days after the
date of selection of the referee, (ii) if practicable, try all issues of law or
fact within one hundred twenty (120) days after the date of the conference and
(iii) report a statement of decision within twenty (20) days after the matter
has been submitted for decision.
8.13.5 The
referee will have power to expand or limit the amount and duration of
discovery. The referee may set or extend discovery deadlines or
cutoffs for good cause, including a party’s failure to provide requested
discovery for any reason whatsoever. Unless otherwise ordered based upon good
cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and
all other discovery shall be responded to within fifteen (15) days after
service. All disputes relating to discovery which cannot be resolved by the
parties shall be submitted to the referee whose decision shall be final and
binding.
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8.13.6 Except
as expressly set forth herein, the referee shall determine the manner in which
the reference proceeding is conducted including the time and place of hearings,
the order of presentation of evidence, and all other questions that arise with
respect to the course of the reference proceeding. All proceedings
and hearings conducted before the referee, except for trial, shall be conducted
without a court reporter, except that when any party so requests, a court
reporter will be used at any hearing conducted before the referee, and the
referee will be provided a courtesy copy of the transcript. The party making
such a request shall have the obligation to arrange for and pay the court
reporter. Subject to the referee’s power to award costs to the prevailing party,
the parties will equally share the cost of the referee and the court reporter at
trial.
8.13.7 The
referee shall be required to determine all issues in accordance with existing
case law and the statutory laws of the State of California. The rules of
evidence applicable to proceedings at law in the State of California will be
applicable to the reference proceeding. The referee shall be empowered to enter
equitable as well as legal relief, enter equitable orders that will be binding
on the parties and rule on any motion which would be authorized in a court
proceeding, including without limitation motions for summary judgment or summary
adjudication. The referee shall issue a decision at the close of the reference
proceeding which disposes of all claims of the parties that are the subject of
the reference. Pursuant to CCP § 644, such decision shall be entered
by the Court as a judgment or an order in the same manner as if the action had
been tried by the Court and any such decision will be final, binding and
conclusive. The parties reserve the right to appeal from the final
judgment or order or from any appealable decision or order entered by the
referee. The parties reserve the right to findings of fact,
conclusions of laws, a written statement of decision, and the right to move for
a new trial or a different judgment, which new trial, if granted, is also to be
a reference proceeding under this provision.
8.13.8 If
the enabling legislation which provides for appointment of a referee is repealed
(and no successor statute is enacted), any dispute between the parties that
would otherwise be determined by reference procedure will be resolved and
determined by arbitration. The arbitration will be conducted by
a retired judge or justice, in accordance with the California Arbitration Act
§1280 through §1294.2 of the CCP as amended from time to time. The limitations
with respect to discovery set forth above shall apply to any such arbitration
proceeding.
8.13.9 THE
PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS,
HIS OR HER OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL
BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY
CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR IN ANY WAY
RELATED TO, THIS AGREEMENT, THE INDEBTEDNESS, THE LOAN DOCUMENTS, OR THE OTHER
BANK DOCUMENTS.
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8.14 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be an
original, but all of which shall constitute one and the same instrument, with
the same effect as if all parties had signed the same signature page. The
parties authorize removal of the signature page of this Agreement from any
counterpart copy and the attachment of all signature pages to a single
counterpart copy so that the signatures of all those signing will be physically
attached to the same document. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of an
originally executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by facsimile shall also
deliver an originally executed counterpart of this Agreement, but failure to
deliver an originally executed counterpart shall not affect the validity,
enforceability or binding effect of this Agreement.
GRANTOR ACKNOWLEDGES HAVING READ ALL
THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT, AND GRANTOR AGREES TO ITS
TERMS. THIS AGREEMENT IS DATED AS OF THE DATE FIRST SET FORTH
ABOVE.
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GRANTOR:
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PREMIER
POWER RENEWABLE ENERGY, INC., a California corporation
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By:
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Its:
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LENDER:
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Umpqua
Bank, an Oregon corporation
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By: | |||
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▇▇▇▇▇▇
▇▇▇▇▇▇, Vice President
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