EXHIBIT 10.16
BUSINESS LOAN AGREEMENT
This Seafirst Business Loan Agreement ("Agreement") is made between Bank of
America NT&SA doing business as Seafirst Bank ("Bank") and Semitool, Inc.
__("Borrower") with respect to the following:
PART A
I. LINE OF CREDIT #59 . Subject to the terms of this Agreement,
Bank will make loans to Borrower under a [ X] revolving [ ] non-revolving
line of credit as follows:
(a) Total Amount Available: $ _10,000,000.00__
[ ] Subject to the provisions of any
accounts receivable and/or inventory borrowing plan
required herein; it is expressly understood that
collateral ineligible for borrowing purposes is
determined solely by Bank.
[ ] Subject to (describe): N/A
(b) Availability period: September 30, 1997 through March, 31, 1999 .
However, if loans are made and/or new promissory notes executed after
the last date, such advances will be subject to the terms of this
Agreement until repaid in full unless a written statement signed by the
Bank and Borrower provides otherwise, or a replacement loan agreement
is executed. The making of such additional advances alone, however,
does not constitute a commitment by the bank to make any further
advances or extend the availability period.
(c) Interest Rate:
1. Bank's publicly announced Reference Rate plus -0-
percent of the principal per annum. "Reference Rate"
means the rate of interest publicly announced from time
to time by Bank in San Francisco, California as its
"Reference Rate". The Reference Rate is set based on
various factors, including Bank's costs and desired
return, general economic conditions, and other factors,
and is used as a reference point for pricing some loans.
Bank may price loans to its customers at, above, or
below the Reference Rate. Any change in the Reference
Rate shall take effect at the opening of business on the
day specified in the public announcement of a change in
the Reference Rate.
2. LIBOR - At the option of Borrower, loans within
the approved line of credit may be available, in minimum
amounts of $250,000 or more for specific periods of time
ranging from 30 days to 180 days, at LIBOR + 2.0% per
annum. Any LIBOR borrowings shall be requested at least
two business days prior to funding. LIBOR borrowings
shall be based on the British Bankers' Association
Interest Settlement Rate (BBAIRS), page 3750 on
Telerate. The LIBOR rate shall be adjusted for reserves,
deposit insurance, assessments and/or taxes. Borrowing
periods for the LIBOR rate option may be for 30, 60, 90
or 180 days. Under the LIBOR rate option, any advance
which is prepaid prior to maturity may be subject to a
prepayment penalty as described in Exhibit 1 -
Prepayment Fees.
(d) Interest Rate Basis. All interest will be calculated at the per
annum interest rate based on 360-day year and applied to the actual
number of days elapsed.
(e) Repayment: At the times and in amounts as
set forth in note(s) required under Part B Article 1 of this Agreement.
(f) Loan Fee: $ N/A payable on N/A .
(g) Fee on Unutilized Portion of
Line: On December 31, 1997 , and every quarter thereafter, Borrower
shall pay a fee based upon the average daily unused portion of the line
of credit. This fee will be calculated as follows: 1/4% of 1% per annum
(h) Other Fee(s) (identify): N/A
(i) Collateral. This revolving line of
credit shall be secured by a security interest, which is hereby
granted, in favor of Bank on the following collateral: N/A Also,
collateral securing other loans with Bank may secure this loan.
II. LINE OF CREDIT #323 . Subject to the terms of this Agreement,
Bank will make loans to Borrower under a [ X] revolving [ ] non-revolving
line of credit as follows:
(a) Total Amount Available: $ _15,000,000.00__
[ ] Subject to the provisions of any
accounts receivable and/or inventory borrowing plan
required herein; it is expressly understood that
collateral ineligible for borrowing purposes is
determined solely by Bank.
[ ] Subject to (describe): N/A
(b) Availability period: September 30, 1997 through March, 31, 1999 .
However, if loans are made and/or new promissory notes executed after
the last date, such advances will be subject to the terms of this
Agreement until repaid in full unless a written statement signed by the
Bank and Borrower provides otherwise, or a replacement loan agreement
is executed. The making of such additional advances alone, however,
does not constitute a commitment by the bank to make any further
advances or extend the availability period.
(c) Interest Rate:
1. Bank's publicly announced Reference Rate plus -0-
percent of the principal per annum. "Reference Rate"
means the rate of interest publicly announced from time
to time by Bank in San Francisco, California as its
"Reference Rate". The Reference Rate is set based on
various factors, including Bank's costs and desired
return, general economic conditions, and other factors,
and is used as a reference point for pricing some loans.
Bank may price loans to its customers at, above, or
below the Reference Rate. Any change in the Reference
Rate shall take effect at the opening of business on the
day specified in the public announcement of a change in
the Reference Rate.
2. LIBOR - At the option of Borrower, loans within
the approved line of credit may be available, in minimum
amounts of $250,000 or more for specific periods of time
ranging from 30 days to 180 days, at LIBOR + 2.0% per
annum. Any LIBOR borrowings shall be requested at least
two business days prior to funding. LIBOR borrowings
shall be based on the British Bankers' Association
Interest Settlement Rate (BBAIRS), page 3750 on
Telerate. The LIBOR rate shall be adjusted for reserves,
deposit insurance, assessments and/or taxes. Borrowing
periods for the LIBOR rate option may be for 30, 60, 90
or 180 days. Under the LIBOR rate option, any advance
which is prepaid prior to maturity may be subject to a
prepayment penalty as described in Exhibit 1 -
Prepayment Fees.
(d) Interest Rate Basis. All interest will be calculated at the per
annum interest rate based on 360-day year and applied to the actual
number of days elapsed.
(e) Repayment: At the times and in amounts as
set forth in note(s) required under Part B Article 1 of this Agreement.
(f) Loan Fee: $ N/A payable on N/A .
(g) Fee on Unutilized Portion of Line: On December 31, 1997 , and every
quarter thereafter, Borrower shall pay a fee based upon the average
daily unused portion of the line of credit. This fee will be calculated
as follows: 1/8% of 1% per annum
(h) Other Fee(s) (identify): N/A
(i) Collateral. This revolving line of credit shall be secured by a
security interest, which is hereby granted, in favor of Bank on the
following collateral: N/A
Also, collateral securing other loans with Bank may secure this loan.
Bank of America NT & SA dba Seafirst Bank
BUSINESS LOAN AGREEMENT
PART B
1. Promissory Note(s). All loans shall be evidenced by promissory notes in
a form and substance satisfactory to Bank.
2. Conditions to Availability of Loan/Line of Credit. Before Bank is
obligated to disburse/make any advance, or at any time thereafter which
Bank deems necessary and appropriate, Bank must receive all of the
following, each of which must be in form and substance satisfactory to
Bank ("loan documents"):
2.1 Original, executed promissory note(s);
2.2 Original executed security agreement(s) and/or deed(s) of trust
covering the collateral described in Part A; 2.3 All collateral
described in Part A in which Bank wishes to have a possessory security
interest; 2.4 Financing statement(s) executed by Borrower; 2.5 Such
evidence that Bank may deem appropriate that the security interests and
liens in favor of Bank are valid, enforceable, and prior to the rights
and interests of others except those consented to in writing by Bank;
+2.6 The following guaranty(ies) in favor of the Bank: N/A +2.7
Subordination agreement(s) in favor of Bank executed by: N/A 2.8
Evidence that the execution, delivery, and performance by Borrower of
this Agreement and the execution, delivery, and performance by Borrower
and any corporate guarantor or corporate subordinating creditor of any
instrument or agreement required under this Agreement, as appropriate,
have been duly authorized; 2.9 Any other document which is deemed by
the Bank to be required from time to time to evidence loans or to
effect the provisions of this Agreement; 2.10 If requested by Bank, a
written legal opinion expressed to Bank, of counsel for Borrower as to
the matters set forth in sections 3.1 and 3.2, and to the best of such
counsel's knowledge after reasonable investigation, the matters set
forth in sections 3.3, 3.5, 3.6, 3.7, 3.8 and such other matters as the
Bank may reasonably request; 2.11 Pay or reimburse Bank for any
out-of-pocket expenses expended in making or administering the loans
made hereunder including without limitation attorney's fees (including
allocated costs of in-house counsel); +2.12 Other (describe): N/A
3. Representations and Warranties. Borrower represents and warrants to
Bank, except as Borrower has disclosed to Bank in writing, as of the
date of this Agreement and hereafter so long as credit granted under
this Agreement is available and until full and final payment of all
sums outstanding under this Agreement and promissory notes that:
+3.1 Borrower is duly organized and existing under the laws of the
state of its organization as a:
General Limited
_X Corporation ___ Partnership ___ Partnership
__ Sole Proprietorship
dba LLC with duration of
Borrower is properly licensed and in good standing in
each state in which Borrower is doing business and Borrower
has qualified under, and complied with, where required, the
fictitious or trade name statutes of each state in which
Borrower is doing business, and Borrower has obtained all
necessary government approvals for its business activities;
the execution, delivery, and performance of this Agreement and
such notes and other instruments required herein are within
Borrower's powers, have been duly authorized, and, as to
Borrower and any guarantor, are not in conflict with the terms
of any charter, bylaw, or other organization papers of
Borrower, and this Agreement, such notes and the loan
documents are valid and enforceable according to their terms;
3.2 The execution, delivery, and performance of this Agreement, the
loan documents and any other instruments are not in conflict with any
law or any indenture, agreement or undertaking to which Borrower is a
party or by which Borrower is bound or affected; 3.3 Borrower has title
to each of the properties and assets as reflected in its financial
statements (except such assets which have been sold or otherwise
disposed of in the ordinary course of business), and no assets or
revenues of the Borrower are subject to any lien except as required or
permitted by this Agreement, disclosed in its financial statements or
otherwise previously disclosed to Bank in writing; 3.4 All financial
information, statements as to ownership of Borrower and all other
statements submitted by Borrower to Bank, whether previously or in the
future, are and will be true and correct in all material respects upon
submission and are and will be complete upon submission insofar as may
be necessary to give Bank a true and accurate knowledge of the subject
matter thereof; 3.5 Borrower has filed all tax returns and reports as
required by law to be filed and has paid all taxes and assessments
applicable to Borrower or to its properties which are presently due and
payable, except those being contested in good faith; 3.6 There are no
proceedings, litigation or claims (including unpaid taxes) against
Borrower pending or, to the knowledge of the Borrower, threatened,
before any court or government agency, and no other event has occurred
which may have a material adverse effect on Borrower's financial
condition; 3.7 There is no event which is, or with notice or lapse of
time, or both, would be, an Event of Default (as defined in Section 7)
under this Agreement; 3.8 Borrower has exercised due diligence in
inspecting Borrower's properties for hazardous wastes and hazardous
substances. Except as otherwise previously disclosed and acknowledged
to Bank in writing:
(a) during the period of Borrower's ownership of
Borrower's properties, there has been no use, generation,
manufacture, storage, treatment, disposal, release or
threatened release of any hazardous waste or hazardous
substance by any person in, on, under or about any of
Borrower's properties; (b) Borrower has no actual or
constructive knowledge that there has been any use,
generation, manufacture, storage, treatment, disposal, release
or threatened release of any hazardous waste or hazardous
substance by any person in, on, under or about any of
Borrower's properties by any prior owner or occupant of any of
Borrower's properties; and (c) Borrower has no actual or
constructive notice of any actual or threatened litigation or
claims of any kind by any person relating to such matters. The
terms "hazardous waste(s)," hazardous substance(s),"
"disposal," "release," and "threatened release" as used in
this Agreement shall have the same meanings as set forth in
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et
seq., the Superfund Amendments and Reauthorization Act of
1986, as amended, Pub. L. No. 99-499, the Hazardous Materials
Transportation Act, as amended, 49 U.S. C. Section 1801, et
seq., the Resource Conservation and Recovery Act, as amended,
49 U.S.C. Section 6901, et seq., or other applicable state or
federal laws, rules or regulations adopted pursuant to any of
the foregoing. +3.9 Each chief place of business of Borrower,
and the office or offices where Borrower keeps its records
concerning any of the collateral, is located at: 655 West
Reserve Drive, Kalispell, MT 59901
4. Affirmative Covenants. So long as credit granted under this Agreement
is available and until full and final payment of all sums outstanding
under this Agreement and promissory note(s) Borrower will:
+4.1 Use the proceeds of the loans covered by this Agreement only in
connection with Borrower's business activities and exclusively for the
following purposes: To finance normal short-term cash operating needs.
+4.2 Maintain current assets in an amount at least equal to N/A times
current liabilities, and not less than $ N/A in excess thereof. Current
assets and current liabilities shall be determined in accordance with
generally accepted accounting principles and practices, consistently
applied; +4.3 Maintain a tangible net worth of at least $70,000,000
plus 50% of net income (excluding losses) and not permit Borrower's
total indebtedness which is not subordinated in a manner satisfactory
to Bank to exceed __1.0_times Borrower's tangible net worth. "Tangible
net worth" means the excess of total assets over total liabilities,
excluding, however, from the determination of total assets (a) all
assets which should be classified as intangible assets such as
goodwill, patents, trademarks, copyrights, franchises, and deferred
charges (including unamortized debt discount and research and
development costs), (b) treasury stock, (c) cash held in a sinking or
other similar fund established for the purpose of redemption or other
retirement of capital stock, (d) to the extent not already deducted
from total assets, reserves for depreciation, depletion, obsolescence
or amortization of properties and other reserves or appropriations of
retained earnings which have been or should be established in
connection with the business conducted by the relevant corporation, and
(e) any revaluation or other write-up in book value of assets
subsequent to the fiscal year of such corporation last ended at the
date of this Agreement; +4.4 Upon request Borrower agrees to insure and
to furnish Bank with evidence of insurance covering the life of
Borrower (if an individual) or the lives of designated partners or
officers of Borrower (if a partnership or corporation) in the amounts
stated below. Borrower shall take such actions as are reasonably
requested by Bank, such as assigning the insurance policies to Bank or
naming Bank as beneficiary and obtaining the insurer's acknowledgment
thereof, to provide that in the event of the death of any of the named
insureds the policy proceeds will be applied to payment of Borrower's
obligations owing to Bank;
Name: ______N/A__________Amount: $ _____N/A____
Name: ______N/A__________Amount: $ _____N/A____
+4.5 Promptly give written notice to Bank of: (a) all litigation and
claims made or threatened affecting Borrower where the amount is
$250,000 or more; (b) any substantial dispute which may exist between
Borrower and any governmental regulatory body or law enforcement
authority; (c) any Event of Default under this Agreement or any other
agreement with Bank or any other creditor or any event which become an
Event of Default; and (d) any other matter which has resulted or might
result in a material adverse change in Borrower's financial condition
or operations; +4.6 Borrower shall as soon as available, but in any
event within 90 days following the end of each Borrower's fiscal years
and within 45 days following the end of each quarter provide to Bank,
in a form satisfactory to Bank (including audited statements if
required at any time by Bank), such financial statements and other
information respecting the financial condition and operations of
Borrower as Bank may reasonably request; 4.7 Borrower will maintain in
effect insurance with responsible insurance companies in such amounts
and against such risks as is customarily maintained by persons engaged
in businesses similar to that of Borrower and all policies covering
property given as security for the loans shall have loss payable
clauses in favor of Bank. Borrower agrees to deliver to Bank such
evidence of insurance as Bank may reasonably require and, within thirty
(30) days after notice from Bank, to obtain such additional insurance
with an insurer satisfactory to the Bank; 4.8 Borrower will pay all
indebtedness taxes and other obligations for which the Borrower is
liable or to which its income or property is subject before they shall
become delinquent, except any which is being contested by the Borrower
in good faith; 4.9 Borrower will continue to conduct its business as
presently constituted, and will maintain and preserve all rights,
privileges and franchises now enjoyed, conduct Borrower's business in
an orderly, efficient and customary manner, keep all Borrowers
properties in good working order and condition, and from time to time
make all needed repairs, renewals or replacements so that the
efficiency of Borrower's properties shall be fully maintained and
preserved; 4.10 Borrower will maintain adequate books, accounts and
records and prepare all financial statements required hereunder in
accordance with generally accepted accounting principles and practices
consistently applied, and in compliance with the regulations of any
governmental regulatory body having jurisdiction over Borrower or
Borrower's business; 4.11 Borrower will permit representatives of Bank
to examine and make copies of the books and records of Borrower and to
examine the collateral of the Borrower at reasonable times; 4.12
Borrower will perform, on request of Bank, such acts as may be
necessary or advisable to perfect any lien or security interest
provided for herein or otherwise carry out the intent of this
Agreement; 4.13 Borrower will comply with all applicable federal, state
and municipal laws, ordinances, rules and regulations relating to its
properties, charters, businesses and operations, including compliance
with all minimum funding and other requirements related to any of
Borrower's employee benefit plans; 4.14 Borrower will permit
representatives of Bank to enter onto Borrower's properties to inspect
and test Borrower's properties as Bank, in its sole discretion, may
deem appropriate to determine Borrower's compliance with section 5.8 of
this Agreement; provided however, that any such inspections and tests
shall be for Bank's sole benefit and shall not be construed to create
any responsibility or liability on the part of Bank to Borrower or to
any third party.
5. Negative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding
under this Agreement and promissory note(s):
+5.1 Borrower will not, during any fiscal year, expend or incur in the
aggregate more than $_N/A for fixed assets, nor more than $ N/A for any
single fixed asset whether or not payable that fiscal year or later
under any purchase agreement or lease; 5.2 Borrower will not, without
the prior written consent of Bank, purchase or lease under an agreement
for acquisition, incur any other indebtedness for borrowed money,
mortgage, assign, or otherwise encumber any of Borrower's assets, nor
sell, transfer or otherwise hypothecate any such assets except in the
ordinary course of business. Borrower shall not guaranty, endorse,
co-sign, or otherwise become liable upon the obligations of others,
except by the endorsement of negotiable instruments for deposit or
collection in the ordinary course of business. For purposes of this
paragraph, the sale or assignment of accounts receivable, or the
granting of a security interest therein, shall be deemed the incurring
of indebtedness for borrowed money; +5.3 The total of salaries,
withdrawals, or other forms of compensation, whether paid in cash or
otherwise, by Borrower shall not exceed the following amounts for the
persons indicated, nor will amounts in excess of such limits be paid to
any other person:
Name: ____________N/A_________________________
Monthly/Yearly Amount: $ _____N/A_________________
Name: ____________N/A_________________________
Monthly/Yearly Amount: $ _____N/A_________________
5.4 Borrower will not, without Bank's prior written consent, declare
any dividends on shares of its capital stock, or apply any of its
assets to the purchase, redemption or other retirement of such shares,
or otherwise amend its capital structure; +5.5 Borrower will not make
any loan or advance to any person(s) or purchase or otherwise acquire
the capital stock, assets or obligations of, or any interest in, any
person, except:
(a) commercial bank time deposits maturing within one
year,
(b) marketable general obligations of the United States
or a State, or marketable obligations fully
guarantied by the United States,
(c) short-term commercial paper with the highest rating
of a generally recognized rating service,
(d) other investments related to the Borrower's business
which, together with such other investments now
outstanding, do not in the aggregate exceed the sum
of $ N/A at any time;
5.6 Borrower will not liquidate or dissolve or enter into any
consolidation, merger, pool, joint venture, syndicate or other
combination, or sell, lease, or dispose of Borrower's business assets
as a whole or such as in the opinion of Bank constitute a substantial
portion of Borrower's business or assets; 5.7 Borrower will not engage
in any business activities or operations substantially different from
or unrelated to present business activities or operations; and 5.8
Borrower, and Borrower's tenants, contractors, agents or other parties
authorized to use any of Borrower's properties, will not use, generate,
manufacture, store, treat, dispose of, or release any hazardous
substance or hazardous waste in, on, under or about any of Borrower's
properties, except as previously disclosed to Bank in writing as
provided in section 3.8; and any such activity shall be conducted in
compliance with all applicable federal, state and local laws,
regulations and ordinances, including without limitation those
described in section 3.8.
6. Waiver, Release and Indemnification. Borrower hereby:
(a) releases and waives any claims against Bank for indemnity or
contribution in the event Borrower becomes liable for cleanup or other
costs under any of the applicable federal, state or local laws,
regulations or ordinances, including without limitation those described
in section 3.8, and (b) agrees to indemnify and hold Bank harmless from
and against any and all claims, losses, liabilities, damages, penalties
and expenses which Bank may directly or indirectly sustain or suffer
resulting from a breach of (i) any of Borrower's representations and
warranties with respect to hazardous wastes and hazardous substances
contained in section 3.8, or (ii) section 5.8. The provisions of this
section 6 shall survive the full and final payment of all sums
outstanding under this Agreement and promissory notes and shall not be
affected by Bank's acquisition of any interest in any of the Borrower's
properties, whether by foreclosure or otherwise.
7. Events of Default. The occurrence of any of the following events
("Events of Default") shall terminate any and all obligations on the
part of Bank to make or continue the loan and/or line of credit and, at
the option of Bank, shall make all sums of interest and principal
outstanding under the loan and/or line of credit immediately due and
payable, without notice of default, presentment or demand for payment,
protest or notice of non payment or dishonor, or other notices or
demands of any kind or character, all of which are waived by Borrower,
and Bank may proceed with collection of such obligations and
enforcement and realization upon all security which it may hold and to
the enforcement of all rights hereunder or at law:
7.1 The Borrower shall fail to pay when due any amount payable by
it hereunder on any loans or notes executed in connection herewith;
7.2 Borrower shall fail to comply with the provisions of any other
covenant, obligation or term of this Agreement for a period of fifteen
(15) days after the earlier of written notice thereof shall have been
given to the Borrower by Bank or Borrower or any Guarantor has
knowledge of an Event of Default or an event that can become an Event
of Default; 7.3 Borrower shall fail to pay when due any other
obligation for borrowed money, or to perform any term or covenant on
its part to be performed under any agreement relating to such
obligation or any such other debt shall be declared to be due and
payable and such failure shall continue after the applicable grace
period; 7.4 Any representation or warranty made by Borrower in this
Agreement or in any other statement to Bank shall prove to have been
false or misleading in any material respect when made; 7.5 Borrower
makes an assignment for the benefit of creditors, files a petition in
bankruptcy, is adjudicated insolvent or bankrupt, petitions to any
court for a receiver or trustee for Borrower or any substantial part of
its property, commences any proceeding relating to the arrangement,
readjustment, reorganization or liquidation under any bankruptcy or
similar laws, or if there is commenced against Borrower any such
proceedings which remain undismissed for a period of thirty (30) days
or, if Borrower by any act indicates its consent or acquiescence in any
such proceeding or the appointment of any such trustee or receiver;
+7.6 Any judgment attaches against Borrower or any of its properties
for an amount in excess of $100,000 which remains unpaid, unstayed on
appeal, unbonded, or undismissed for a period of thirty (30) days; 7.7
Loss of any required government approvals, and/or any governmental
regulatory authority takes or institutes action which, in the opinion
of Bank, will adversely affect Borrower's condition, operations or
ability to repay the loan and/or line of credit; 7.8 Failure of Bank to
have a legal, valid and binding first lien on, or a valid and
enforceable prior perfected security interest in, any property covered
by any deed of trust or security agreement required under this
Agreement; 7.9 Borrower dies, becomes incompetent, or ceases to exist
as a going concern; 7.10 Occurrence of an extraordinary situation which
gives Bank reasonable grounds to believe that Borrower may not, or will
be unable to, perform its obligations under this or any other agreement
between Bank and Borrower; or 7.11 Any of the preceding events occur
with respect to any guarantor of credit under this Agreement, or such
guarantor dies or becomes incompetent, unless the obligations arising
under the guaranty and related agreements have been unconditionally
assumed by the guarantor's estate in a manner satisfactory to Bank.
8. Successors; Waivers. Notwithstanding the Events of Default above, this
Agreement shall be binding upon and inure to the benefit of Borrower
and Bank, their respective successors and assigns, except that Borrower
may not assign its rights hereunder. No consent or waiver under this
Agreement shall be effective unless in writing and signed by the Bank
and shall not waive or affect any other default, whether prior or
subsequent thereto, and whether of the same or different type. No delay
or omission on the part of the Bank in exercising any right shall
operate as a waiver of such right or any other right.
9. Arbitration.
9.1 At the request of either Bank or Borrower any controversy or claim
between the Bank and Borrower, arising from or relating to this
Agreement or any Loan Document executed in connection with this
Agreement or arising from any alleged tort shall be settled by
arbitration in King County Washington. The United States Arbitration
Act will apply to the arbitration proceedings which will be
administered by the American Arbitration Association under its
commercial rules of arbitration except that unless the amount of the
claim(s) being arbitrated exceeds $5,000,000 there shall be only one
arbitrator. Any controversy over whether an issue is arbitrable shall
be determined by the arbitrator(s). Judgment upon the arbitration award
may be entered in any court having jurisdiction. The institution and
maintenance of any action for judicial relief or pursuit of a
provisional or ancillary remedy shall not constitute a waiver of the
right of either party, including plaintiff, to submit the controversy
or claim to arbitration if such action for judicial relief is
contested.
For purposes of the application of the statute of limitations
the filing of an arbitration as provided herein is the equivalent of
filing a lawsuit and the arbitrator(s) will have the authority to
decide whether any claim or controversy is barred by the statute of
limitations, and if so, to dismiss the arbitration on that basis. The
parties consent to the joinder in the arbitration proceedings of any
guarantor, hypothecator or other party having an interest related to
the claim or controversy being arbitrated. 9.2 Notwithstanding the
provisions of Section 9.1, no controversy or claim shall be submitted
to arbitration without the consent of all parties if at the time of the
proposed submission, such controversy or claim arises from or relates
to an obligation secured by real property; 9.3 No provision of this
Section 9 shall limit the right of the Borrower or the Bank to exercise
self-help remedies such as setoff, foreclosure or sale of any
collateral, or obtaining any ancillary provisional or interim remedies
from a court of competent jurisdiction before, after or during the
pendency of any arbitration proceeding. The exercise of any such remedy
does not waive the right of either party to request arbitration. At
Bank's option foreclosure under any deed of trust may be accomplished
by exercise of the power of sale under the deed of trust or judicial
foreclosure as a mortgage.
10. Collection Activities, Lawsuits and Governing Law. Borrower agrees to
pay Bank all costs and expenses (including reasonable attorney's fees
and the allocated cost for in-house legal services incurred by Bank),
to enforce this Agreement, any notes or any Loan Documents pursuant to
this Agreement, whether or not suit is instituted. If suit is
instituted by Bank to enforce this Agreement or any of these documents,
Borrower consents to the personal jurisdiction of the Courts of the
State of Washington and Federal Courts located in the State of
Washington. Borrower further consents to the venue of this suit, being
laid in King County, Washington. This Agreement and any notes and
security agreements entered into pursuant to this Agreement shall be
construed in accordance with the laws of the State of Washington.
+11. Additional Provisions. Borrower agrees to the additional provisions set
forth immediately following this Section 11 or on any "Exhibit__N/A_"
attached to and hereby incorporated into Agreement. This Agreement
supersedes all oral negotiations or agreements between Bank and
Borrower with respect to the subject matter hereof and constitutes the
entire understanding and Agreement of the matters set forth in this
Agreement.
11.1 If any provision of this Agreement is held to be invalid or
unenforceable, then (a) such provision shall be deemed modified if
possible, or if not possible, such provision shall be deemed stricken,
and (b) all other provisions shall remain in full force and effect.
11.2 If the imposition of or any change in any law, rule, or regulation
guideline or the interpretation or application of any thereof by any
court of administrative or governmental authority (including any
request or policy whether or not having the force of law) shall impose
or modify any taxes (except U.S. federal, state or local income or
franchise taxes imposed on Bank), reserve requirements, capital
adequacy requirements or other obligations which would: (a) increase
the cost to Bank for extending or maintaining any loans and/or line of
credit to which this Agreement relates, (b) reduce the amounts payable
to Bank under this Agreement, such notes and other instruments, or(c)
reduce the rate of return on Bank's capital as a consequence of Bank's
obligations with respect to any loan and/or line of credit to which
this Agreement relates, then Borrower agrees to pay Bank such
additional amounts as will compensate Bank therefor, within five (5)
days after Bank's written demand for such payment, which demand shall
be accompanied by an explanation of such imposition or charge and a
calculation in reasonable detail of the additional amounts payable by
Borrower, which explanation and calculations shall be conclusive,
absent manifest error. 11.3 Bank may sell participations in or assign
this loan in whole or in part without notice to Borrower and Bank may
provide information regarding the Borrower and this Agreement to any
prospective participant or assignee. If a participation is sold or the
loan is assigned the purchaser will have the right of set off against
the Borrower and may enforce its interest in the Loan irrespective of
any claims or defenses the Borrower may have against the Bank. 11.4 Not
permit Borrower's debt coverage ratio to fall below 1.50 (measured
quarterly based upon the immediately preceding four quarters financial
results), and computed as follows:
Debt Net Income + Depreciation + Amortization -
Coverage = Maint. CAPEX ($3,000,000) - Dividends
------------------------------------------
Ratio Current Portion Long-Term Debt
11.5 So long as any amounts or obligations of any type are owing by
Borrower to Bank, or Bank is committed to lend to Borrower:
a) Borrower shall not, without the prior written consent
of Bank, create or permit to exist any lien or
encumbrance upon, or transfer any interest in, any of
its accounts receivable or inventory, other than
sales of inventory in the ordinary course of
business.
b) Borrower to provide Loan Agreement Compliance Certificates on
a quarterly basis; and
c) If at any time the principal amount outstanding under
Borrower's revolving line of credit from Bank exceeds
the sum of (I) 50% of Borrower's accounts receivable
plus (ii) 25% of the value (based on the lower of
cost or market) of Borrower's inventory, then, upon
request by Bank, Borrower shall grant to Bank a
security interest in all of its accounts receivable
and inventory to secure all obligations of Borrower
under the revolving line of credit, pursuant to a
security agreement and UCC filings in form
satisfactory to Bank.
12. Notices. Any notices shall be given in writing to the opposite party's
signature below or as that party may otherwise specify in writing.
13. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
This Business Loan Agreement (Parts A and B) executed by the parties on
____September 30,_____________19_97__. Borrower acknowledges having read al
of the provisions of this Agreement and Borrower agrees to its terms.
SEAFIRST BANK Spokane & Eastern
------------------------
(Branch/Office)
By: /s/Joe Poole
------------------------
Title: Vice President
Address: P.O. Box 1446
City, State, Zip Spokane, WA 99210
Phone: (509) 353-1475
Fax: (509) 353-1492
Semitool, Inc.
------------------------
(Borrower Name)
By: /s/Raymon F. Thompson
------------------------
Raymon F. Thompson
Title: President
Address: 655 West Reserve Drive
City, State, Zip: Kalispell, MT 59901
Phone: (406) 752-2107
Fax: (406) 752-5522