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RELATIONSHIP READY CREDIT AGREEMENT
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BORROWER: AKEENA, INC. LENDER: CITIBANK (WEST), FSB
605 UNIVERSITY AVENUE 210 WEST LEXINGTON DRIVE
LOS GATOS , CA 95032 GLENDALE, CA 91203
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Principal Amount: $500,000.00 Date of Agreement: August 31, 2005
PROMISE TO PAY. Akeena, Inc. ("Borrower") promises to pay to Citibank (West),
FSB ("Lender"), or order, in lawful money of the United States of America, the
principal amount of Five Hundred Thousand & 00/100 Dollars ($500,000.00) or so
much as may be outstanding, together with interest on the unpaid outstanding
principal balance calculated from the date of the first Advance until repayment
of all Advances.
PAYMENT. Borrower will pay all Advances in accordance with the following payment
schedule:
Until Lender cancels Borrower's right to obtain Advances under this
Agreement, Borrower will pay accrued interest and charges each month.
Lender may at any time, in the exercise of its sole discretion, cancel such
right of Borrower to obtain Advances. The date upon which Lender cancels
such right shall be referred to herein as the "Cancellation Date." The
aggregate amount of all Advances outstanding on the Cancellation Date shall
be payable In forty-eight (48) equal consecutive monthly Installments of
principal, together with accrued monthly Interest and any other charges
beginning the first calendar month after the Cancellation Date.
Borrower agrees to maintain its primary business checking account in a
satisfactory manner with Lender and irrevocably authorizes Lender to debit
its account for all payments due under this Agreement.
Unless otherwise agreed or required by applicable law, payments will be applied
in the following order: (1) Interest; (2) charges, fees and penalties; and (3)
principal. The annual Interest rate for this Agreement 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 Lender's address shown above or at such other place as Lender may
designate In writing.
CREDIT LINE. This Agreement covers a revolving line of credit for the principal
amount displayed at the beginning of this Agreement which will be the "Credit
Line." The Credit Line is the maximum amount which Borrower may have outstanding
at any one time. Borrower may borrow, repay and re-borrow up to the amount of
the Credit Line. Borrower agrees not to attempt, request, or obtain an Advance
that will make Borrower's outstanding balance exceed the Credit Line. The Credit
Line will not be increased should Borrower exceed the Credit Line. Borrower
agrees to repay immediately any amount by which Borrower's outstanding balance
exceeds the Credit Line. Any amount greater than the Credit Line will be secured
by the Collateral. By providing Borrower with written notice, Lender may
increase or decrease the Credit Line at any time.
ADVANCES. Advances may be obtained by using checks furnished by Lender,
transfers made on Lender's on-line banking system and any other method
acceptable to Lender from time to time. Lender may not honor a request for an
Advance if: the Credit Line has or would be exceeded by making the Advance;
check is post-dated; Borrower's checks have been reported lost or stolen; check
is not signed by an Authorized Signer; Borrower is in default; Lender has
cancelled Borrower's right to obtain Advances; or any other reasonable
circumstance.
ANNUAL FEE. Borrower agrees to pay an annual fee of $2,500.00 at initiation of
the Credit Line and annually thereafter. The annual fee may be billed, may be
automatically debited from Borrower's primary business checking account or may
be added to the principal balance. The annual fee is non-refundable unless
Borrower notifies Lender of Borrower's cancellation of this Agreement within
thirty (30) days of the mailing of the billing statement on which the fee is
billed. Notwithstanding any of the foregoing, the annual fee of one-half percent
(1/2) shall be reduced to $500.00 for the first year only.
OTHER FEES. Borrower agrees to pay all other fees and charges related to the
Credit Line or this Agreement and the Credit Line may be charged as follows: (1)
Stop Payment Fee: $35.00 when Borrower requests a stop payment on Borrower's
check; (2) Over-Limit Fee: $35.00 for each billing period that the outstanding
principal balance exceeds the Credit Line; (3) Transaction Fee: $5.00 for each
check or other Advance posted above 20 checks or other Advances per billing
period; (4) Check/Other Advance Fee: $35.00 when Lender declines to honor a
check or other request for an Advance; and (5) for businesses located in
Florida, the Florida Documentary Stamp Tax.
AUTHORIZED SIGNERS. All persons whose signatures appear below are authorized to
request an Advance or a repayment under the Credit Line.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's consideration of Borrower's
request to make the initial Advance and each subsequent Advance under this
Agreement shall be subject to the fulfillment to Lender's satisfaction of all of
the covenants and conditions set forth in this Agreement and in the Related
Documents. Borrower shall have provided to Lender all documents that Lender may
require in form and substance satisfactory to Lender. Borrower shall have paid
all fees, charges and other expenses due and payable. All representations and
warranties set forth in this Agreement; in the Related Documents and in any
document delivered to Lender are true and correct. There shall not exist at the
time of any Advance a condition which would constitute an Event of Default and
Lender shall not have cancelled the Credit Line. Lender shall have a first
priority lien on Borrower's Collateral.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change
from time to time based on changes in an independent index which is the Wall
Street Journal Prime Rate (the "Index"). The Index is not necessarily the lowest
rate charged by Lender on its loans. If the Index becomes unavailable during the
term of this Agreement, Lender may designate a substitute index after notice to
Borrower. Lender will tell Borrower the current Index rate upon Borrower's
request. The interest rate change will not occur more often than each day.
Borrower understands that Lender may make loans based on other rates as well.
The interest rate to be applied to the unpaid principal balance of this
Agreement will be at a rate of 1.250 percentage points over the Index. NOTICE:
Under no circumstances will the interest rate on this Agreement be more than the
maximum rate allowed by applicable law.
PREPAYMENT. Borrower 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. Except for the foregoing, 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 Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments of accrued unpaid interest.
Rather, early payments will reduce the principal balance due. Borrower agrees
not to send Lender payments marked "paid in full", "without recourse", or
similar language. If Borrower sends such a payment, Lender may accept it without
losing any of Lender's rights under this Agreement, and Borrower will remain
obligated to pay any further amount owed to Lender. All written communications
concerning disputed amounts, including any check or other payment instrument
that indicates that the payment constitutes "payment in full" of the amount owed
or that is tendered with other conditions or limitations or as full satisfaction
of a disputed amount must be mailed or delivered to: Citibank (West), FSB; 210
West Lexington Drive; Glendale, CA 91203.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged
5.000% OF THE UNPAID PORTION OF THE REGULARLY SCHEDULED PAYMENT OR $35.00,
WHICHEVER IS LESS.
INTEREST AFTER DEFAULT. If any Event of Default shall occur, the variable
Interest rate on this Agreement shall immediately increase to 4.250
RELATIONSHIP READY CREDIT AGREEMENT
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percentage points over the Index, if permitted under applicable law.
COLLATERAL. This Agreement is secured by all property and assets of the Borrower
and any grantor, whether real or personal, described in (a) any security
agreement, assignment, pledge, mortgage, deed of trust or other agreement
intended as a security device (each, a "Collateral Document") which by its terms
is intended to secure all existing and future obligations and indebtedness of
the Borrower to the Lender and (b) any Collateral Document executed by the
Borrower and any grantor in connection with this Agreement.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $35.00. If Borrower
makes a payment and the check or preauthorized charge with which Borrower pays
is later dishonored.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each Advance, and at all times
any indebtedness exists hereunder:
ORGANIZATION. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of California Borrower has the
full power and authority to own its properties and to transact the business
in which it is presently engaged or presently proposes to engage. Borrower
maintains an office at 605 University Avenue, Los Gatos, CA 95032.
Borrower will notify Lender prior to any change in the location of
Borrower's state of organization or any change in Borrower's name.
AUTHORIZATION. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of (a)
Borrower's articles of incorporation or organization, or bylaws, or (b) any
agreement or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to Borrower or
to Borrower's properties.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by Lender in writing.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any security agreements, or
permitted the filing or attachment of any security interests on or
affecting any of the Collateral directly or indirectly securing repayment
of the indebtedness evidenced by this Agreement, that would be prior or
that may in any way be superior to Lender's security interests and rights
in and to such Collateral.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect. Borrower will:
NOTICES OF CLAIMS AND LITIGATION. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of Borrower
or the financial condition of any Guarantor.
RIGHT TO AUDIT. Permit Lender to examine and audit Borrower's books and
records at any time and from time to time.
FINANCIAL STATEMENTS. Furnish Lender with the following.
ADDITIONAL REQUIREMENTS. Such financial statements and related
information in such form and detail as may be satisfactory to Lender
within thirty (30) days of Lender's request.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
INSURANCE. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies acceptable to Lender. In connection with all policies
covering the Collateral, Borrower will provide Lender with policies or
certificates of Insurance with such lender's loss payable or other
endorsements as Lender may require.
BUSINESS PURPOSE. Use all Advances solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
OPERATIONS. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
ADDITIONAL FINANCIAL RESTRICTIONS. LIENS AND ENCUMBRANCES. Create or permit
to exist any liens, security interests or other encumbrances on any of
Borrower's assets.
CONTINUITY OF OPERATIONS. (1) Engage in any business activities
substantially different than those In which Borrower is presently engaged,
or (2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under this
Agreement.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower 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 any of Borrower's property or Borrower's ability to repay
this Agreement or perform Borrower's obligations under this Agreement or
any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect; either now or at the time made or furnished or becomes false
RELATIONSHIP READY CREDIT AGREEMENT
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or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of 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 Borrower.
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 Borrower or by any
governmental agency against any collateral.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect
to any Guarantor or any Guarantor dies or becomes incompetent, or revokes
or disputes the validity of, or liability under, any Guaranty of the
indebtedness evidenced by this Agreement. In the event of a death, Lender,
at its option, may, but shall not be required to, permit the Guarantor's
estate to assume unconditionally the obligations arising under the guaranty
in a manner satisfactory to Lender, and, in doing so, cure any Event of
Default.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
this Agreement is impaired.
INSECURITY. Lender in good faith believes itself insecure.
LENDER'S RIGHTS. If any Event of Default shall occur, Lender may declare the
entire unpaid principal balance on this Credit Line and all accrued unpaid
interest and all other amounts payable under this Agreement immediately due and
payable. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement
AMENDMENTS. This Agreement, together with any Related 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.
ATTORNEYS' FEES; EXPENSES. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and 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. Borrower also shall pay all court costs
and such additional fees as may be directed by the court.
JURY WAIVER. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL
IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR
BORROWER AGAINST THE OTHER.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any
other person who signs, guarantees or endorses this Agreement, to the
extent allowed by law, waive any applicable statute of limitations,
presentment, demand for payment, and notice of dishonor. Upon any change in
the terms of this Agreement, and unless otherwise expressly stated in
writing, no party who signs this Agreement, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. The
obligations under this Agreement are joint and several.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY FEDERAL LAW APPLICABLE TO
LENDER AND, TO THE EXTENT NOT PREEMPTED BY FEDERAL LAW, THE LAWS OF THE
STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAW PROVISIONS.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of Los Angeles County,
State of California. Nothing herein shall affect the right of the Lender to
bring any action or proceeding against the Borrower or its property in the
courts of any other jurisdiction.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all Borrower's accounts with Lender and its
subsidiaries and affiliates (whether checking, savings, or some other
account). This includes all accounts Borrower holds jointly with someone
else and all accounts Borrower may open in the future. However, this does
not include any IRA or Keogh accounts, or any trust accounts for which
setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing
under this Agreement against any and all such accounts, and, at Lender's
option, to administratively freeze all such accounts to allow Lender to
protect Lender's charge and setoff rights provided in this paragraph.
SUCCESSORS AND ASSIGNS. All covenants and agreements by or on behalf of
Borrower contained in this Agreement or any Related Documents shall bind
Borrower's successors and assigns and shall inure to the benefit of Lender
and its successors and assigns. Borrower shall not, however, have the right
to assign Borrower's rights under this Agreement or any interest therein,
without the prior written consent of Lender.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
ADVANCE. The word "Advance" means a disbursement of funds made, or to be
made, to Borrower or on Borrower's behalf under the terms and conditions of
this Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
GUARANTOR. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the indebtedness evidenced by this
Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with this Agreement.
RELATIONSHIP READY CREDIT AGREEMENT
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BORROWER:
AKEENA, INC.
By: /s/ Barry A. Cinnamon
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BARRY A. CINNAMON,
PRESIDENT OF AKEENA, INC,
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LASER PRO Landing, Ver. 5.25.20.003 Corp. Harland Financial Solutions, Inc.
1997, 2005. All Rights Reserved. - CA _____________________ TR-4006 PR-20
