BUSINESS LOAN AGREEMENT
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Principal Loan Date Maturity Loan No. Call/Coll Account Officer Initials
$2,000,000.00 10-11-2001 09-20-2002 242-RK _____
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References 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.
Any item above containing ***** has been omitted due to text length limitations.
Borrower: THE TOPAZ GROUP, INC. Lender: General Bank
1180 NW Maple Street, Suite 180 Kent North Branch
Issaquah, WA 98027 18030 East Valley Highway
Kent, WA 98032-0278
THIS BUSINESS LOAN AGREEMENT dated October 11, 2001, is made and executed
between THE TOPAZ GROUP, INC. ("Borrower") and General Bank ("Lender") on the
following terms and conditions. Borrower has received prior commercial loans
from Lender or has applied to Lender for a commercial loan or loans or other
financial accommodations, including those which may be described on any exhibit
or schedule attached to this Agreement ("Loan"). Borrower understands and agrees
that: (A) in granting, renewing, or extending any Loan, Lender is relying upon
Borrower's representations, warranties, and agreements as set forth in this
Agreement, and (B) all such Loans shall be and remain subject to the terms and
conditions of this Agreement.
TERM. This Agreement shall be effective as of October 11, 2001, and shall
continue in full force and effect until such time as all of Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until September 20,
2002.
ADVANCE AUTHORITY. The following persons currently are authorized to request
advances and authorize payments under the line of credit until Lender receives
from Borrower, at Lender's address shown above: written notice of revocation of
their authority: Apichart Fufuangvanich, President of THE TOPAZ GROUP, INC.; and
Terrance Cuff, Chief Financial Officer of THE TOPAZ GROUP, INC.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation 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 conditions set forth in this
Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following
documents for the Loan: (1) the Note; (2) Security Agreements granting
to Lender security interests in the Collateral; (3) financing
statements and all other documents perfecting Lender's Security
Interests; (4) evidence of insurance as required below; (5)
guaranties; (6) together with all such Related Documents as Lender may
require for the Loan; all in form and substance satisfactory to Lender
and Lender's counsel.
Borrower's Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and
the Related Documents. In addition, Borrower
BUSINESS LOAN AGREEMENT
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shall have provided such other resolutions, authorizations, documents
and instruments as Lender or its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all
fees, charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
Representations and Warranties. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and
correct.
No Event of Default. There shall not exist at the time of any Advance
a condition which would constitute an Event of Default under this
Agreement or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any indebtedness exists:
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 Nevada.
Borrower is duly authorized to transact business in all other states
in which Borrower is doing business, having obtained all necessary
filings, governmental licenses and approvals for each state in which
Borrower is doing business. Specifically, Borrower is, and at all
times shall be, duly qualified as a foreign corporation in all states
in which the failure to so qualify would have a material adverse
effect on its business or financial condition. 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 1180 NW Maple Street, Suite 180,
Issaquah, WA 98027. Unless Borrower has designated otherwise in
writing, the principal office is the office at which Borrower keeps
its books and records including its records concerning the Collateral.
Borrower will notify Lender prior to any change in the location of
Borrower's state of organization or any change in Borrower's name.
Borrower shall do all things necessary to preserve and to keep in full
force and effect its existence, rights and privileges, and shall
comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental or quasi-governmental authority or court
applicable to Borrower and Borrower's business activities.
Assumed Business Names. Borrower has filed or recorded all documents
or filings required by law relating to all assumed business names used
by Borrower. Excluding the name of Borrower, the following is a
complete list of all assumed business names under which Borrower does
business: None.
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
BUSINESS LOAN AGREEMENT
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and do not conflict with, result in a violation of, or constitute a
default under (1) any provision of Borrower's articles of
incorporation or organization, or bylaws, or 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.
Legal Effect. This Agreement constitutes, and any instrument or
agreement Borrower is required to give under this Agreement when
delivered will constitute legal, valid, and binding obligations of
Borrower enforceable against Borrower in accordance with their
respective terms.
Properties. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender
and as accepted by Lender, and except for property tax liens for taxes
not presently due and payable, Borrower owns and has good title to all
of Borrower's properties free and clear of all Security Interests, and
has not executed any security documents or financial statements
relating to such properties. All of Borrower's properties are titled
in Borrower's legal name, and Borrower has not used or filed a
financing statement under any other name for at least the last five
(5) years.
Hazardous Substances. Except as disclosed to and acknowledged by
Lender in writing, Borrower represents and warrants that: (1) During
the period of Borrower's ownership of Borrower's Collateral, there has
been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any Hazardous Substance by any person
on, under, about or from any of the Collateral. (2) Borrower has no
knowledge of, or reason to believe that there has been (a) any breach
or violation of any Environmental Laws; (b) any use, generation,
manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral;
or (c) any actual or threatened litigation or claims of any kind by
any person relating to such matters. (3) Neither Borrower nor any
tenant, contractor, agent or other authorized user of any of the
Collateral shall use, generate, manufacture, store, treat, dispose of
or release any Hazardous Substance on, under, about or from any of the
Collateral; and any such activity shall be conducted in compliance
with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation all Environmental Laws.
Borrower authorizes Lender and its agents to enter upon the Collateral
to make such inspections and tests as Lender may deem appropriate to
determine compliance of the Collateral with this section of the
Agreement. Any inspections or tests made by Lender shall be at
Borrower's expense and for Lender's purposes only and shall not be
construed to create any responsibility or
BUSINESS LOAN AGREEMENT
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liability on the part of Lender to Borrower or to any other person.
The representations and warranties contained herein are based on
Borrower's due diligence in investigating the Collateral for hazardous
waste and Hazardous Substances. Borrower hereby (1) releases and
waives any future claims against Lender for indemnity or contribution
in the event Borrower becomes liable for cleanup or other costs under
any such laws, and (2) agrees to indemnify and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties,
and expenses which Lender may directly or indirectly sustain or suffer
resulting from a breach of this section of the Agreement or as a
consequence of any use, generation, manufacture, storage, disposal,
release or threatened release of a hazardous waste or substance on the
Collateral. The provisions of this section of the Agreement, including
the obligation to indemnify, shall survive the payment of the
indebtedness and the termination, expiration or satisfaction of this
Agreement and shall not be affected by Lender's acquisition of any
interest in any of the Collateral, whether by foreclosure or
otherwise.
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.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax
returns and reports that are or were required to be filed, have been
filed and all taxes, assessments and other governmental charges have
been paid in full, except those presently being or to be contested by
Borrower in good faith in the ordinary course of business and for
which adequate reserves have been provided.
Lien Property. 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 Borrower's Loan and Note, that would be prior or
that may in any way be superior to Lender's Security Interests and
rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof,
as well as upon their successors, representatives and assigns, and are
legally enforceable in accordance with their respective terms.
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
BUSINESS LOAN AGREEMENT
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Borrower or any Guarantor which could materially affect the financial
condition of Borrower or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with
GAAP, applied on a consistent basis, and permit Lender to examine and
audit Borrower's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later
than sixty (60) days after the end of each fiscal year,
Borrower's balance sheet and income statement for the year ended,
audited by a certified public accountant satisfactory to Lender.
Interim Statements. As soon as available, but in no event later
than 45 days after the end of each fiscal year, Borrower's
balance sheet and profit and loss statement for the period ended,
reviewed by a certified public accountant satisfactory to Lender.
Tax Returns. As soon as available, but in no event later than
thirty (30) days after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax
returns, prepared by Borrower.
Additional Requirements. See "Addendum to Loan Agreement" for
additional reporting covenants requirement.
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.
Additional Information. Furnish such additional information and
statements, as Lender may request from time to time.
Financial Covenants and Ratios. Comply with the following covenants
and ratios:
Working Capital Requirements. Borrower shall comply with the
following working capital ratio requirements:
Current Ratio. Maintain a Current Ratio in excess of 2.000
to 1.000. The term "Current Ratio" means Borrower's total
Current Assets divided by Borrower's total Current
Liabilities.
Tangible Net Worth Requirements. Maintain a minimum Tangible Net
Worth of not less than: $15,000,000.00. In addition, Borrower
shall comply with the following net worth ratio requirements:
BUSINESS LOAN AGREEMENT
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Debt/Worth Ratio. Maintain a ratio of Debt/Worth not in
excess of 1.500 to 1.000. The ratio "Debt/Worth" means
Borrower's Total Liabilities divided by Borrower's Tangible
Net Worth.
Other Requirements. See "Addendum to Loan Agreement" for
additional financial covenants requirement.
Except as provided above, all computations made to determine
compliance with the requirements contained in this paragraph
shall be made in accordance with generally accepted accounting
principles, 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. Borrower, upon
request of Lender, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be cancelled or
diminished without at least thirty (30) days prior written notice to
Lender. 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 Borrower or any other person.
In connection with all policies covering assets in which Lender holds
or is offered a security interest for the Loans, Borrower will provide
Lender with such lender's loss payable or other endorsements as Lender
may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports
on each existing insurance policy showing such information as Lender
may reasonably request, including without limitation the following:
(1) the name of the Insurer; (2) the risks insured; (3) the amount of
the policy; (4) the properties insured; (5) the then current property
values on the basis of which insurance has been obtained, and the
manner of determining those values; and (6) the expiration date of the
policy. In addition, upon request of Lender (however not more often
than annually), Borrower will have an independent appraiser
satisfactory to Lender determine, as applicable, the actual cash value
or replacement cost of any Collateral. The cost of such appraisal
shall be paid by Borrower.
Guaranties. Prior to disbursement of any Loan proceeds, furnish
executed guaranties of the Loans in favor of Lender, executed by the
guarantors named below, on Lender's forms, and in the amounts and
under the conditions set forth in those guaranties.
Names of Guarantors Amounts
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Creative Gems & Jewelry Co., Ltd. $2,200,000.00
Advance Gems & Jewelry Co., Ltd. $2,200,000.00
Advance Gems Manufacturing Co., Ltd. $2,200,000.00
Apichart Fufuangvanich $2,200,000.00
BUSINESS LOAN AGREEMENT
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Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and
any other party and notify Lender immediately in writing of any
default in connection with any other such agreements.
Loan Fees, Charges and Expenses. In addition, to all other agreed upon
fees, charges, and expenses, pay the following: (1)--Loan Fee
$7,500.00; (2)--Documentation Fee: $250.00.
Loan Proceeds. Use all Loan proceeds solely for the following specific
purposes: Working capital for business operation for gem & jewelry
trade.
Taxes, Charges and Liens. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every
kind and nature, imposed upon Borrower or its properties, income, or
profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon any
of Borrower's properties, income, or profits.
Performance. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between
Borrower and Lender. Borrower shall notify Lender immediately in
writing of any default in connection with any agreement.
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.
Environmental Studies. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as
may be requested by Lender or any governmental authority relative to
any substance, or any waste or by-product of any substance defined as
toxic or a hazardous substance under applicable federal, state, or
local law, rule, regulation, order or directive, at or affecting any
property or any facility owned, leased or used by Borrower.
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, and to the use or occupancy of
the Collateral, including without limitation, the Americans With
Disabilities Act. Borrower may contest in good faith any such law,
ordinance, or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Borrower has
notified Lender in writing prior to doing so and so long as, in
Lender's sole opinion, Lender's interests in the Collateral are not
jeopardized. Lender may require Borrower to
BUSINESS LOAN AGREEMENT
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post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender's interest.
Inspection. Permit employees or agents of Lender at any reasonable
time to inspect any and all Collateral for the Loan or Loans and
Borrower's other properties and to examine or audit Borrower's books,
accounts, and records and to make copies and memoranda of Borrower's
books, accounts, and records. If Borrower now or at any time hereafter
maintains any records (including without limitation computer generated
records and computer software programs for the generation of such
records) in the possession of a third party, Borrower, upon request of
Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of
any records it may request, all at Borrower's expense.
Compliance Certificates. Unless waived in writing by Lender, provide
Lender within forty-five (45) days after the end of each fiscal
quarter, with a certificate executed by Borrower's chief financial
officer, or other officer or person acceptable to Lender, certifying
that the representations and warranties set forth in this Agreement
are true and correct as of the date of the certificate and further
certifying that, as of the date of the certificate, no Event of
Default exists under this Agreement.
Environmental Compliance and Reports. Borrower shall comply in all
respect with any and all Environmental Laws; not cause or permit to
exist, as a result of an intentional or unintentional action or
omission on Borrower's part or on the part of any third party, on
property owned and/or occupied by Borrower, any environmental activity
where damage may result to the environment, unless such environmental
activity is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within
thirty (30) days after receipt thereof a copy of any notice, summons,
lien, citation, directive, letter or other communication from any
governmental agency or instrumentality concerning any intentional or
unintentional action or omission on Borrower's part in connection with
any environmental activity whether or not there is damage to the
environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security agreements,
assignments, financing statements, instruments, documents and other
agreements as Lender or its attorneys may reasonably request to
evidence and secure the Loans and to perfect all Security Interests.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any
BUSINESS LOAN AGREEMENT
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time levied or placed on any Collateral and paying all costs for insuring,
maintaining and preserving any Collateral. All such expenditures incurred or
paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Lender to the date of repayment
by Borrower. All such expenses will 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 Note and be apportioned among and be payable with any installment payments
to become due during either (1) the term of any applicable insurance policy; or
(2) the remaining term of the Note; or (C) be treated as a balloon payment which
will be due and payable at the Note's maturity.
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:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets
(except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(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, or (3) pay any dividends
on Borrower's stock (other than dividends payable in its stock), provided,
however that notwithstanding the foregoing, but only so long as no Event of
Default has occurred and is continuing or would result from the payment of
dividends, if Borrower is a "Subchapter S Corporation" (as defined in the
Internal Revenue Code of 1986, as amended), Borrower may pay cash dividends
on its stock to its shareholders from time to time in amounts necessary to
enable the shareholders to pay income taxes and make estimated income tax
payments to satisfy their liabilities under federal and state law which
arise solely from their status as Shareholders of a Subchapter S
Corporation because of their ownership of shares of Borrower's stock, or
purchase or retire any of Borrower's outstanding shares or alter or amend
Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or
assets, (2) purchase, create or acquire any interest in any other
enterprise or entity, or (3) incur any obligation as surety or guarantor
other than in the ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in
BUSINESS LOAN AGREEMENT
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Borrower's financial condition, in the financial condition of any Guarantor, or
in the value of any Collateral securing any Loan; or (D) any Guarantor seeks,
claims or otherwise attempts to limit, modify or revoke such Guarantor's
guaranty of the Loan or any other loan with Lender; or (E) Lender in good faith
deems itself insecure, even though no Event of Default shall have occurred.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (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 on the
indebtedness against any and all such accounts.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Borrower fails to make any payment when due under the
Loan.
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 or any Grantor 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 or any Grantor's property or
Borrower's or any Grantor's ability to repay the Loans or perform their
respective 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 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.
Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method,
BUSINESS LOAN AGREEMENT
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by any creditor of Borrower or by any governmental agency against any
collateral securing the Loan. This includes a garnishment of any of
Borrower's accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower gives Lender
written notice of the creditor or forfeiture proceeding and deposits with
Lender monies or a surety bond for the creditor or forfeiture proceeding,
in an amount determined by Lender, in its sole discretion, as being an
adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the indebtedness. 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 the
Loan is impaired.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If any default, other than a default on indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given
a notice of a similar default within the preceding twelve (12) months, it
may be cured (and no Event of Default will have occurred) if Borrower or
Grantor, as the case may be, after receiving written notice from Lender
demanding cure of such default: (1) cure the default within fifteen (15)
days; or (2) if the cure requires more than fifteen (15) days, immediately
initiate steps which Lender deems in Lender's sole discretion to be
sufficient to cure the default and thereafter continue and complete all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's right
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude pursuit
of
BUSINESS LOAN AGREEMENT
(Continued)
Page 12
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any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Lender's
right to declare a default and to exercise its rights and remedies.
ADDENDUM. See "Addendum to Loan Agreement" attached hereto and made a part
hereof.
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.
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.
Consent to Loan Participation. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, or potential purchasers, any information or
knowledge Lender may have about Borrower or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower may
have with respect to such matters. Borrower additionally waives any and all
notices of sale of participation interests, as well as all notices of any
repurchase of such participation interests. Borrower also agrees that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the sale
of such participation interests. Borrower further waives all rights of
offset or counterclaim that it may have now or later against Lender or
against any purchaser of such a participation interest and unconditionally
agrees that either Lender or such purchaser may enforce Borrower's
obligation under the Loan irrespective of the failure or insolvency of any
holder of any interest in the Loan. Borrower further agrees that the
BUSINESS LOAN AGREEMENT
(Continued)
Page 13
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purchaser of any such participation interests may enforce its interests
irrespective of any personal claims or defenses that Borrower may have
against Lender.
Governing Law. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Washington.
This Agreement has been accepted by Lender in the State of Washington.
No Waiver by Lender. 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 Lender's 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 Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's rights
or of any of Borrower's or any 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.
Notices. Subject to applicable law, and except for notice required or
allowed by law to be given in another manner, any notice required to be
given under this Agreement shall be given in writing, and shall be
effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United
States mail, as first class, certified or registered mail postage prepaid,
directed to the addresses shown near the beginning of this Agreement. Any
party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of
the notice is to change the party's address. For notice purposes, Borrower
agrees to keep Lender informed at all times of Borrower's current address.
Subject to applicable law, and except for notice required or allowed by law
to be given in another manner, if there is more than one Borrower, any
notice given by Lender to any Borrower is deemed to be notice given to all
Borrowers.
Severability. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
BUSINESS LOAN AGREEMENT
(Continued)
Page 14
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Subsidiaries and Affiliates of Borrower. To the extent the context of any
provisions of this Agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower" as
used in this Agreement shall include all of Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing however, under no circumstances
shall this Agreement be construed to require Lender to make any Loan or
other financial accommodation to any of Borrower's subsidiaries or
affiliates.
Successors and Assigns. All covenants and agreements contained by or on
behalf of Borrower 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.
Survival of Representations and Warranties. Borrower understands and agrees
that in extending Loan Advances, Lender is relying on all representations,
warranties, and covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties
and covenants will survive the extension of Loan Advances and delivery to
Lender of the Related Documents, shall be continuing in nature, shall be
deemed made and redated by Borrower at the time each Loan Advance is made,
and shall remain in full force and effect until such time as Borrower's
indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
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 Loan funds made, or to
be made, to Borrower or on Borrower's behalf on a line of credit or
multiple advance basis under the terms and conditions of this Agreement.
Agreement. The word "Agreement" means this Business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time,
together with all exhibits and schedules attached to this Business Loan
Agreement from time to time.
Borrower. The word "Borrower" means THE TOPAZ GROUP, INC.
BUSINESS LOAN AGREEMENT
(Continued)
Page 15
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Collateral. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage,
collateral chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention
contract, lease or consignment intended as a security device, or any other
security or lien interest whatsoever, whether created by law, contract, or
otherwise.
Environmental Laws. The words "Environmental Laws" mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human, health or the environment, including without
limitation 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 1968, Pub.
L. No. 99-499 "(SARA"), 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., or other applicable state or federal laws,
rules, or regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
Grantor. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including
without limitation all Borrowers granting such a Security Interest.
Guarantor. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" also includes, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other
BUSINESS LOAN AGREEMENT
(Continued)
Page 16
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indebtedness and costs and expenses for which Borrower is responsible under
this Agreement or under any of the Related Documents.
Lender. The word "Lender" means General Bank, its successors and assigns.
Loan. The word "Loan" means any and all loans and financial accommodations
from Lender to Borrower whether now or hereafter existing, and however
evidenced, including without limitation those loans and financial
accommodations described herein or described on any exhibit or schedule
attached to this Agreement from time to time.
Note. The word "Note" means the Note executed by THE TOPAZ GROUP, INC. in
the principal amount of $2,000,000.00 dated October 11, 2001, together with
all renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Permitted Liens. The words "Permitted Liens" mean (1) liens and security
interests securing indebtedness owed by Borrower to Lender; (2) liens for
taxes, assessments, or similar charges either not yet due or being
contested in good faith; (3) liens of materialmen, mechanics, warehousemen,
or carriers, or other like liens arising in the ordinary course of business
and securing obligations which are not yet delinquent; (4) purchase money
liens or purchase money security interests upon or in any property acquired
or held by Borrower in the ordinary course of business to secure
indebtedness outstanding on the date of this Agreement or permitted to be
incurred under the paragraph of this Agreement titled "Indebtedness and
Liens"; (5) liens and security interests which, as of the date of this
Agreement, have been disclosed to and approved by the Lender in writing;
and (6) those liens and security interests which in the aggregate
constitute an immaterial and insignificant monetary amount with respect to
the net value of Borrower's assets.
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 the Loan.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
Security Interest. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien or title retention contract, lease or consignment
BUSINESS LOAN AGREEMENT
(Continued)
Page 17
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intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
Tangible Net Worth. The words "Tangible Net Worth" mean Borrower's total
assets excluding all intangible assets (i.e., goodwill, trademarks,
patents, copyrights, organization expenses, and similar intangible items,
but including leaseholds and leasehold improvements) less total debt.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED OCTOBER 11, 2001.
BORROWER:
THE TOPAZ GROUP, INC.
By:/s/ Terrance Cuff, CFO
----------------------------------------
Terrance Cuff, Chief Financial Officer of
THE TOPAZ GROUP, INC.
LENDER:
GENERAL BANK
- ------------------------------------
Authorized Signer
[Logo] General Bank ADDENDUM TO LOAN AGREEMENT
This Addendum entered into between The Topaz Group, Inc. ("Borrower") and
General Bank ("Lender") and dated October 11, 2001 is attached to and a part of
that certain Loan Agreement also entered into between the said parties of even
date (the "Agreement"). Defined terms used but not defined herein have the
respective meanings assigned to them in said Loan Agreement. In the event of any
conflict between any term or provision in the said Loan Agreement and in this
Addendum, this Addendum shall control.
I. THE COMMITMENT
WORKING CAPITAL FACILITY
Aggregate Amount. Upon the terms and subject to the conditions set forth in the
Agreement, Lender shall make advances (the "Advances") to Borrower as follows:
Loans or working capital advances up to the Maturity Date in the maximum amount
of $2,000,000 during the term of the loan. The advance is subject to a quarterly
Borrowing Base of 80% of the aggregate amount of eligible accounts receivable
and shall not exceed the lesser of the Borrowing Base or $2,000,000.
Within the limits of the Commitment and subject to the terms and conditions of
the Agreement, Borrower may borrow, prepay, repay and reborrow under this
Section I from time to time during the period from the effective date of the
Agreement to and including September 20, 2002 (the "Maturity Date") or the
earlier date of the termination in whole of the commitment pursuant to the
Agreement.
II. REPAYMENTS
Repayment of Working Capital. The unpaid principal amount of all advances
outstanding on the Maturity Date shall be repaid in full on such Maturity Date,
unless Lender has otherwise approved an extension or renewal of the credit
facility.
III. ADDITIONAL TERMS AND CONDITIONS
A. REPORTING COVENANTS
Borrower agrees, so long as Lender has any Commitment hereunder or any amount
hereunder remains unpaid, to provide Lender with the following:
o CPA-Audited annual business financial statements to be submitted within 60
days from each Fiscal Year End. (FYE: 12/31)
o Annual business tax return or extension to be submitted within 30 days of
filing.
o Quarterly Interim CPA - reviewed financial statements to be submitted
within 45 days from each period end; number of periods: 4.
o Quarterly Compliance Certificate prepared and signed by CFO or corporate
officer to be submitted within 45 days from each period end.
Addendum to Loan Agreement
Page 2
o Personal financial statements and tax returns of all guarantors are
required annually.
The following report(s) are to be submitted monthly within 25 days from each
period end.
o accounts receivable aging report
o accounts payable report
o inventory list
Monthly Borrowing Base Certificate prepared and signed by CFO or corporate
officer to be submitted within 25 days from each period end.
The Borrowing Base excludes ineligible accounts receivable as follows:
o accounts over 60 days past due date.
o accounts with 50% of the balance over 60 days past due ("cross aging"
accounts).
o the amount of accounts in excess of 20% of total receivables after
excluding factored (non-recourse) and/or insured (acceptable to Lender)
portion (account concentration).
o foreign open accounts, contra accounts, consignment, promotion/demo
accounts, government accounts, affiliate accounts, employee accounts and
credit memos.
o accounts deemed by Lender as uncollectible or unacceptable for whatever
reason.
Should the Loans outstanding exceed the Borrowing Base (at Lender's sole
determination), the excess portion shall be due and payable within 14 days of
Lender's written notice to Borrower.
B. FINANCIAL COVENANTS
Borrower agrees, so long as Lender has any Commitment hereunder or any amount
hereunder remains unpaid, that Borrower shall abide by and comply with the
following:
o Current Ratio. Maintain a ratio of current assets to current liabilities in
excess of 2.0:1.0 (defined as total current assets divided by current
liabilities).
o Tangible Net Worth. Borrower must maintain a minimum Tangible Net Worth of
not less than $15,000,000 (defined as stated net worth less intangibles,
net loans to affiliate(s), net loans to shareholders/principals/officers,
plus subordinated debt).
o Net Worth Ratio. Maintain a ratio of total liabilities to tangible net
worth of not more than 1.5:1:0 (defined as total liabilities less
subordinated debt divided by stated net worth less intangible, net loans to
affiliate(s), net loans to shareholders/principals/officers, plus
subordinated debt).
o Borrower will establish no new credit facilities, engage in any debt
restructure, or accelerate payment of any existing debt without prior
written approval from Lender.
o Borrower will not engage in any bulk sale of assets without prior written
approval from Lender.
C. OTHER TERMS AND CONDITIONS
o Accounts receivable are to be directly remitted to Lender by notice and is
subject to the following specific provisions:
Addendum to Loan Agreement
Page 3
< Borrower shall inform all its debtors to remit all check payments
directly to the designated lockbox.
< All sales invoices shall be stamped to indicate that all check
payments shall be directly remitted to the designated lockbox.
< 50% of the lockbox proceeds shall be applied to any outstanding loan,
subject to a monthly review by Lender. Lender reserves the right and
option to apply up to 100% of lockbox proceeds to repay outstanding
loans whenever an event of default exists.
< Borrower shall not instruct its customers to change the payment method
other than sending payments directly to the designated lockbox at
Lender, without Lender's prior written consent.
< Lender reserves the right to make direct account receivable
notification and/or verification without Borrower's prior consent.
< Other terms and conditions as may be specified by Lender or as
stipulated in a lockbox operating agreement.
o The Borrower shall maintain total depository relationship with operating
checking/savings account(s) maintained at Lender; any operating account(s)
established or to be established at another financial institution requires
the prior written consent of Lender.
o Borrower authorizes Lender to debit its operating checking account for
payments and fees due under letters of credit or collections, Loan Advances
and/or acceptances as they become due and payable.
o Lender reserves the right to conduct on-site audit on the Borrower's
accounts receivable and inventory, in addition to other books and records,
no more than two times in a twelve month period by Lender's appointed
auditors with the audit fee to be paid by Borrower. When deemed necessary
and at Lender's sole determination, Lender may conduct additional audits at
Lender's own expense. If the audit discloses findings and conclusions that
Lender deems unsatisfactory, Lender reserves the right to cancel or modify
the credit approval, and/or to take such corrective action as it deems
appropriate, including but not limited to termination or reduction of the
Commitment.
IV. PRE-FUNDING CONDITIONS:
o This credit approval is subject to a satisfactory pre-funding audit on the
Borrower's accounts receivable and inventories. Lender will judge the audit
findings and conclusions as satisfactory at its sole discretion and
determination. If the audit discloses findings and conclusions that are
deemed unsatisfactory, Lender reserves the right to cancel or modify the
credit approval, and/or to take such corrective action as it deems
appropriate, including but not limited to termination or reduction of the
credit facility.
V. SPECIAL TERMS & CONDITIONS
o Borrower shall maintain profitable pre-tax earnings. o Borrower shall
retain earnings within the company.
o Borrower shall not invest its cash in securities or commodities trading.
o Borrower shall pay Lender's pre-funding audit costs as well as legal
expenses for Lender's counsel in Thailand.
Addendum to Loan Agreement
Page 4
o All accounts receivable shall be coursed through Lender's lock-box account.
Accounts receivable deposited with other financial institutions require
Lender's prior approval.
VI. COST AND EXPENSES
The "Costs and Expenses" provision set forth in the Loan Agreement is hereby
deleted and shall be replaced in its entirety by the following:
Borrower agrees to pay upon demand all of Lender's expenses, including without
limitation attorneys' fees, incurred in connection with the preparation,
execution, enforcement, modification and collection of the Agreement or in
connection with the Loans made pursuant to the Agreement. Lender may pay any
third parties to help collect the Loans and to enforce the Agreement, and
Borrower will pay that amount. This includes, subject to any limits under
applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or
not there is a lawsuit, including attorneys' fees for bankruptcy proceedings
(including without limitation proceedings or efforts concerning cash collateral
arrangements or motions, any proposed disclosure statement or plan, any
assumption/rejection motion, or proceedings or efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Borrower also will pay any court costs, in addition to all
other sums provided by law.
Additionally, upon Lender's request, Borrower will promptly pay to Lender such
fees, costs and out-of-pocket incidental expenses charged or incurred by Lender
with respect to the "Loans" and/or "Commitment". Borrower authorizes Lender to
charge Borrower's account for any such fees, costs and expenses.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO FOREBEAR
FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
BORROWER: LENDER:
The Topaz Group, Inc. General Bank
By:/s/ Terrence Cuff, CFO By:
------------------------------ ------------------------------
Terence Cuff, CFO Authorized Officer