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EXHIBIT 10.1
[IMPERIAL BANK LOGO]
NOTE
$3,000,000.00 Inglewood, California, November 18, 1996
On October 30, 1997, and as hereinafter provided, for value received, the
undersigned promises to pay to IMPERIAL BANK ("Bank"), a California banking
corporation, or order, at its LENDING SERVICES office, the principal sum of
$3,000,000.00 MAXIMUM or such sums up to the minimum if so stated, as the Bank
may now or hereafter advance to or for the benefit of the undersigned in
accordance with the terms hereof, together with interest from date of
disbursement or N/A, whichever is later, on the unpaid principal balance [ ] at
the rate of % per year [x] at the rate of 0.000% per year in excess of the
rate of interest which Bank has announced as its prime lending rate (the "Prime
Rate"), which shall vary concurrently with any change in such Prime Rate, or
$250.00, whichever is greater. Interest shall be computed at the above rate on
the basis of the actual number of days during which the principal balance is
outstanding, divided by 360, which shall, for interest computation purposes, be
considered one year.
Interest shall be payable [x] monthly [ ] quarterly [ ] included with
principal [ ] in addition to principal [ ] beginning November 30, 1996, and if
not so paid shall become a part of the principal. All payments shall be applied
first to any late charges owing, then to interest and the remainder, if any, to
principal. [ ] (If checked), Principal shall be payable in installments of
$ or more, each installment on the day of each , beginning .
Advances not to exceed any unpaid balance owing at any one time equal to the
maximum amount specified above, may be made at the option of Bank.
Any partial prepayment shall be applied to the installments, if any, in
inverse order of maturity. Should default be made in the payment of principal
or interest when due, or in the performance or observance, when due, of any
item, covenant or condition of any deed of trust, security agreement or other
agreement (including amendments or extensions thereof) securing or pertaining
to this note, at the option of the holder hereof and without notice or demand,
the entire balance of principal and accrued interest then remaining unpaid
shall (a) become immediately due and payable, and (b) thereafter bear interest,
until paid in full, at the increased rate of 5% per year in excess of the rate
provided for above, as it may vary from time to time.
Defaults shall include, but not be limited to, the failure of the
maker(s) to pay principal or interest when due; the filing as to each person
obligated hereon, whether as maker, co-maker, endorser or guarantor
(individually or collectively referred to as the "Obligor") of a voluntary or
involuntary petition under the provisions of the Federal Bankruptcy Act; the
issuance of any attachment or execution against any asset of any Obligor; the
death of any Obligor; or any deterioration of the financial condition of any
Obligor which results in the holder hereof considering itself, in good faith,
insecure.
If any installment payment, interest payment, principal payment or
principal balance payment due hereunder is delinquent ten or more days, Obligor
agrees to pay Bank a late charge in the amount of 5% of the payment so due and
unpaid, in addition to the payment; but nothing in this paragraph is to be
construed as any obligation on the part of the holder of this note to accept
payment of any payment past due or less than the total unpaid principal balance
after maturity.
If this note is not paid when due, each Obligor promises to pay all
costs and expenses of collection and reasonable attorneys fees incurred by the
holder hereof on account of such collection, plus interest at the rate
applicable to principal, whether or not suit is filed hereon. Each Obligor
shall be jointly and severally liable hereon and consents to renewals,
replacements and extensions of time for payment hereof, before, at, or after
maturity, consents to the acceptance, release or substitution of security for
this note; and waives demand and protest and the right to assert any statute of
limitations. Any married person who signs this note agrees that recourse may be
had against separate property for any obligations hereunder. The indebtedness
evidenced hereby shall be payable in lawful money of the United States. In any
action brought under or arising out of this note, each Obligor, including
successor(s) or assign(s) hereby consents to the application of California law,
to the jurisdiction of any competent court within the State of California, and
to service of process by any means authorized by California law.
No single or partial exercise of any power hereunder, or under any deed
of trust, security agreement or other agreement in connection herewith shall
produce other or further exercises thereof or the exercise of any other such
power. The holder hereof shall at all times have the right to proceed against
any portion of the security for this note in such order and in such manner as
such holder may consider appropriate, without waiving any rights with respect
to any of the security. Any delay or omission on the part of the holder hereof
in exercising any right hereunder, or under any deed of trust, security
agreement or other agreement, shall not operate as a waiver of such right, or
of any other right, under this note or any deed of trust, security agreement or
other agreement in connection herewith.
TRITEAL CORPORATION
By /s/ [SIG]
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- ----------------------------------- -------------------------------------
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[IMPERIAL BANK LOGO]
ITEMIZATION OF AMOUNT FINANCED
DISBURSEMENT INSTRUCTIONS
Name(s): Date: November 18, 1996
TRITEAL CORPORATION
$ paid to you directly by Cashiers Check No.
$ 3,000,000.00 credited to deposit account No. 11-070-337
when advances are requested.
$ paid on Loan(s) No.
$ amounts paid to Bank for:
Amounts paid to others on your behalf:
$ to Title Insurance Company
$ to Public Officials
$ to
$ to
$ to
$ to
$ 3,000,000.00 SUBTOTAL (NOTE AMOUNT)
LESS $ 0.00 Prepaid Finance Charge (Loan fee(s))
$ 3,000,000.00 TOTAL (AMOUNT FINANCED)
Upon consummation of this transaction, this document will also serve as the
authorization for Imperial Bank to disburse the loan proceeds as stated above.
TRITEAL CORPORATION
BY [SIG]
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Signature Signature
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Signature Signature
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[IMPERIAL BANK LOGO]
AGREEMENT TO PROVIDE INSURANCE
(REAL OR PERSONAL PROPERTY)
TO: IMPERIAL BANK Date: November 18, 1996
9920 S. La Cienega Blvd. Borrower: TRITEAL CORPORATION
Inglewood, CA 90301
In consideration of a loan in the amount of $3,000,000, secured by all tangible
personal property including inventory and equipment.
I/We agree to obtain adequate insurance coverage to remain in force during the
term of the loan.
I/We also agree to advise the below named agent to add Imperial Bank as loss
payee on the new or existing insurance policy, and to furnish Bank at above
address with a copy of said policy/endorsements and any subsequent renewal
policies.
I/We understand that the policy must contain:
1. Fire and extended coverage in an amount sufficient to cover:
a) The amount of the loan, OR
b) All existing encumbrances, whichever is greater;
But not in excess of the replacement value of the improvements on
the real property.
2. Lender's "Loss Payable" Endorsement Form 438 BFU in favor of
Imperial Bank, or any other form acceptable to Bank.
INSURANCE INFORMATION
Insurance Co./Agent: Johnson & Higgins Telephone No.: 552-4266
Agent's Address:
TRITEAL CORPORATION
Signature of Obligor: BY /s/ [SIG]
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Signature of Obligor:
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===============================================================================
ST. PAUL FIRE
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FOR BANK USE ONLY
INSURANCE VERIFICATION: Date: 12/30/96
Person Spoken to: Hana Hughes
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Policy Number: TE06100944
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Effective From: 7/1/96 To: 7/1/97
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Verified By: [SIG]
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L 245 E (R 10/92)
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[IMPERIAL BANK LOGO]
CORPORATE RESOLUTION REGARDING CREDIT
OFFICE: LENDING SERVICES ADDRESS: 9920 S. La Cienega Blvd.
Inglewood, CA 90301
RESOLVED, that TRITEAL CORPORATION
borrow from IMPERIAL BANK, hereinafter referred to as "Bank", from time to
time, such sums of money as, in the judgement of the officer or officers
hereinafter authorized, this corporation may require: provided that the
aggregate amount of such borrowing, pursuant to this resolution, shall not at
any one time exceed the principal sum of Three Million Dollars and Zero
Cents ($3,000,000.00), in addition to such amount as may be otherwise
authorized;
RESOLVED FURTHER, that any 1 of the following named officers
------------
(Specify Number)
Arthur Budman Chief Financial Officer
- ---------------------------------- the -------------------------------------
Jeff Witous Chairman & CEO
- ---------------------------------- the -------------------------------------
- ---------------------------------- the -------------------------------------
- ---------------------------------- the -------------------------------------
- ---------------------------------- the -------------------------------------
of this corporation (the officer or officers acting in combination, authorized
to act pursuant hereto being hereinafter designated as "authorized officers"),
be and they are hereby authorized, directed and empowered, for and on behalf
and in the name of this corporation (1) to execute and deliver to the Bank such
notes or other evidences of indebtedness of this corporation for the monies so
borrowed, with interest thereon, as the Bank may require, and to execute and
deliver, from time to time, renewals or extensions of such notes or other
evidences of indebtedness; (2) to grant a security interest in, transfer, or
otherwise hypothecate or deed in trust for Bank's benefit and deliver by such
instruments in writing or otherwise as may be demanded by the Bank, and of the
property of this corporation as may be required by the Bank to secure the
payment of any notes or other indebtedness of this corporation or third
parties to the Bank, whether arising pursuant to this resolution or otherwise;
and (3) to perform all acts and execute and deliver all instruments which the
Bank may deem necessary to carry out the purposes of this resolution;
RESOLVED FURTHER that said authorized officers be and they are hereby
authorized and empowered, and that any one of said authorized officers be and
he/she is hereby authorized and empowered (1) to discount with or sell to the
Bank conditional sales contracts, notes, acceptances, drafts, bailment
agreements, leases, receivables and evidences of indebtedness payable to this
corporation, upon such terms as may be agreed upon by them and the Bank, and to
endorse in the name of this corporation said notes, acceptances, drafts,
bailment agreements, leases, receivables and evidences of indebtedness so
discounted, and to guarantee the payment of the same to the Bank, and (2) to
apply for and obtain from the Bank letters of credit and in connection
therewith to execute such agreement, applications, guarantees, indemnities and
other financial undertakings as Bank may require;
RESOLVED FURTHER, that said authorized officers are also authorized to
direct the disposition of the proceeds of any such obligation, and to accept or
direct delivery from the Bank of any property of this corporation at any time
held by the Bank;
RESOLVED FURTHER, that the authority given hereunder shall be deemed
retroactive and any and all acts authorized hereunder performed prior to the
passage of this resolution are hereby ratified and affirmed:
RESOLVED FURTHER, that this resolution will continue in full force and
effect until the Bank shall receive official notice in writing from this
corporation of the revocation thereof by a resolution duly adopted by the
Board of Directors of this corporation, and that the certification of the
Secretary of this corporation as to the signatures of the above named persons
shall be binding on this corporation.
I, Gregory J White, Secretary of the above named corporation, duly
organized and existing under the laws of the State of Delaware , do hereby
certify that the foregoing is a full, true and correct copy of a resolution of
the Board of Directors of said corporation, duly and regularly passed and
adopted by the Board of Directors of said corporation.
I further certify that said resolution is still in full force and
effect and has not been amended or revoked, and that the specimen signatures
appearing below are the signatures of the officers authorized to sign for this
corporation by virtue of said resolution.
EXECUTED ON 12/19/96.
AUTHORIZED SIGNATURES:
Signature: /s/ ARTHUR BUDMAN
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Arthur Budman
Signature: /s/ JEFF WITOUS /s/ GREGORY J. WHITE
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Jeff Witous Gregory J. White (Secretary)
Signature: ______________________________
Signature: ______________________________
Signature: ______________________________
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CREDIT AGREEMENT
This Credit Agreement ("Agreement") is made by and between TriTeal
Corporation ("Borrower") and Imperial Bank, a California banking corporation,
("Bank"). This Agreement, to the extent applicable, supercedes all prior credit
agreements between Borrower and Bank.
In consideration of mutual covenants and conditions hereof, the parties
hereto agree as follows:
1. REPRESENTATIONS OF BORROWER
Borrower represents and warrants that:
1.01 EXISTENCE AND RIGHTS. Borrower is a corporation duly organized and
existing and in good standing under the laws of California, without limit as to
the duration of its existence and is authorized and in good standing to do
business in the State of California; Borrower has corporate powers and adequate
authority, rights and franchises to own its property and to carry on its
business as now conducted, and is duly qualified and in good standing in each
State in which the character of the properties owned by it therein or the
conduct of its business makes such qualification necessary; and Borrower has
the power and adequate authority to make and carry out this Agreement.
1.02 AGREEMENT AUTHORIZED. The execution, delivery and performance of this
Agreement are duly authorized and do not require the consent or approval of any
governmental body or other regulatory authority; are not in contravention of or
in conflict with any law or regulation or any term or provision of Borrower's
articles of incorporation, by-laws, as the case may be, and this Agreement is
the valid, binding and legally enforceable obligation of Borrower in accordance
with its terms; subject only to bankruptcy, insolvency or similar laws
affecting creditors rights generally.
1.03 NO CONFLICT. The execution, delivery and performance of this Agreement
are not in contravention of or in conflict with any agreement, indenture or
undertaking to which Borrower is a party or by which it or any of its property
may be bound or affected, and do not cause any lien, charge or other
encumbrance to be created or imposed upon any such property by reason thereof.
1.04 LITIGATION. There is no litigation or other proceeding pending or
threatened against or affecting Borrower which if determined adversely to
Borrower or its interest would have a material adverse effect on the financial
condition of Borrower, and Borrower is not in default with respect to any
order, writ, injunction, decree or demand of any court or other governmental or
regulatory authority.
1.05 FINANCIAL CONDITION. The balance sheet of Borrower as of September 30,
1996, a copy of which has heretofore been delivered to Bank by Borrower, and
all other statements and data submitted in writing by Borrower to Bank in
connection with this request for credit are true and correct, and said balance
sheet truly presents the financial condition of Borrower as of the date
thereof, and has been prepared in accordance with generally accepted accounting
principles on a basis consistently maintained. Since such date, there have been
no material adverse changes in the ordinary course of
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business. Borrower has no knowledge of any liabilities, contingent or
otherwise, at such date not reflected in said balance sheet, and Borrower has
not entered into any special commitments or substantial contracts which are not
reflected in said balance sheet, other than in the ordinary and normal course
of its business, which may have a materially adverse effect upon its financial
condition, operations or business as now conducted.
1.06 TITLE TO ASSETS. Borrower has good title to its assets, and the same are
not subject to any liens or encumbrances other than those permitted by Section
3.03 hereof.
1.07 TAX STATUS. Borrower has no liability for any delinquent state, local or
federal taxes, and, if Borrower has contracted with any government agency,
Borrower has no liability for renegotiation of profits.
1.08 TRADEMARKS, PATENTS. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights and
license to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
1.09 REGULATION U. The proceeds of the Loan shall not be used to purchase or
carry margin stock (as defined within Regulation U of the Board of Governors of
the Federal Reserve system).
2. AFFIRMATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, under
borrowings, or other indebtedness, it will, unless Bank shall otherwise consent
in writing:
2.01 RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises and
other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
2.02 INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment.
2.03 TAXES AND OTHER LIABILITIES. Pay and discharge, before the same become
delinquent and before penalties accrue thereon, all taxes, assessments and
governmental charges upon or against it or any of its properties, and all its
other liabilities at any time existing, except to the extent and so long as:
a. The same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any materially adverse
affect upon its financial condition or the loss of any right of
redemption from any sale thereunder; and
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b. It shall have set aside on its books reserves (segregated to
the extent required by generally accepted accounting practice) deemed by it
adequate with respect thereto.
2.04 NON-UTILIZATION FEE. Pay a fee of 0.5% per year on the average unused
portion of the loan commitment, as a non-utilization fee calculated on a
quarterly basis, payable in arrears. In lieu of the Non-Utilization Fee,
Borrower may maintain average collected balances in non-interest bearing Demand
Deposit Accounts with Bank equal to $300,000.00. Demand Deposit Balances shall
be computed after reduction for uncollected funds, reserve requirements,
deposit insurance, and all balances necessary for the cost of services provided
Borrower.
2.05 RECORDS AND REPORTS. Maintain a standard and modern system of accounting
in accordance with generally accepted accounting principles on a basis
consistently maintained; permit Bank's representatives to have access to, and
to examine its properties, books and records at all reasonable times and upon
reasonable notice during normal business hours; and furnish Bank:
a. QUARTERLY FINANCIAL STATEMENTS. Within forty five (45) days
after the close of each quarter of each fiscal year of Borrower,
commencing with the first quarter next ending, a balance sheet, profit
and loss statement and form 10-Q as of the close of such period and
covering operations for the portion of Borrower's fiscal year ending on
the last day of such period, all in reasonable detail, prepared in
accordance with generally accepted accounting principles on a basis
consistently maintained by Borrower and certified by an appropriate
officer of Borrower;
b. ANNUAL FINANCIAL STATEMENT. Within 90 days of fiscal year end, a
financial report of Borrower as of the close of and for each fiscal
year, and form 10-K, all in reasonable detail, prepared on an audited
basis by an independent certified public accountant selected by Borrower
and reasonable acceptable to Bank, in accordance with generally accepted
accounting principles on a basis consistently maintained by Borrower and
certified by an appropriate officer of Borrower;
c. MONTHLY LIQUIDITY VERIFICATION. Within 30 days of each
month-end, copies of bank or brokerage house statements evidencing
compliance with Minimum Liquidity covenant.
d. OTHER INFORMATION. Such other information relating to the
affairs of Borrower as the Bank reasonably may request from time to
time;
e. MANAGEMENT LETTER. In connection with each fiscal year end
financial statement furnished to Bank hereunder, any management letter
of Borrower's independent certified public accountant.
2.06 NOTICE OF DEFAULT. Promptly notify Bank in writing of the occurrence of
any event of default hereunder or any event which upon notice and lapse of time
would be an event of default.
2.07 OPERATING ACCOUNTS. Maintain all primary deposit accounts and banking
relationship with Bank during the term of the Loan. Borrower shall maintain, or
cause to be maintained, on deposit with Imperial Bank, non-interest bearing
demand deposit balances sufficient to compensate Bank for
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all services provided by Bank. Balances shall be calculated after reduction for
the reserve requirement of the Federal Reserve Board and uncollected funds. Any
deficiencies shall be charged directly to the Borrower on a monthly basis.
2.08 ATTORNEY'S FEES. Pay promptly to Bank without demand after notice, with
interest thereon from the date of expenditure at the rate applicable to the
Loan, reasonable attorneys' fees and all costs and expenses paid or incurred by
Bank in collecting or compromising the Loan after the occurrence of an event of
default, whether or not suit is filed. If suit is brought to enforce any
provision of this Agreement, the prevailing party shall be entitled to recover
its reasonable attorneys' fees and court costs in addition to any other remedy
or recovery awarded by the court.
2.09 GAAP AND CALCULATIONS. All financial covenants and financial information
referenced herein shall be interpreted and prepared in accordance with
generally accepted accounting principles applied on a basis consistent with
previous years. Compliance with financial covenants shall be calculated and
monitored on a quarterly basis.
2.10 TANGIBLE NET WORK. Maintain a minimum Tangible Net Worth (the excess of
all assets, excluding any value for goodwill, trademarks, patents, copyrights,
organization expense and other similar intangible items, over its liabilities,
less subordinated debt) of not less than $20,000,000.
2.11 MINIMUM LIQUIDITY. At all times maintain cash and Marketable Securities
of no less than $10,000,000.00. "Marketable Securities" shall be defined as
readily negotiable "Margin Stocks" as defined by Regulation U with a per-share
market value of no less than $5.00; or municipal, corporate, or United States
Government debt instruments rated "Baa" or higher.
3. NEGATIVE COVENANTS OF BORROWER
Borrower agrees that so long as it is indebted to Bank, it will not,
without Bank's written consent:
3.01 TYPE OF BUSINESS; MANAGEMENT. Make any substantial change in the
character of its business; or make any change in its Chief Executive Officer or
Chief Financial Officer.
3.02 LOANS, INVESTMENTS, SECONDARY LIABILITIES. Make any loans or advances to
any person or other entity other than in the ordinary and normal course of its
business and consistent with past practices or make any investment in
unmarketable securities of any person or other entity; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in
the ordinary and normal course of its business and consistent with past
practices.
3.03 ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Except in the
ordinary course of business or for the betterment of the business, purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings
therefor; or sell any assets except in the ordinary course of its business
consistent with past practices or for the betterment of the business; or except
in the ordinary course of business or for the
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betterment of the business, sell, lease assign or transfer any substantial part
of its business or fixed assets, or any property or other assets necessary for
the continuance of its business as now conducted, including without limitation
the selling of any dividends, property or other asset accompanied by the
leasing back of the same.
3.04 MAXIMUM QUARTERLY TANGIBLE NET WORTH REDUCTION. In any fiscal quarter,
suffer a Tangible Net Worth decline of more than $2,000,000.00.
4. EVENTS OF DEFAULT
The occurrence of any of the following events of default shall, at
Bank's option, terminate Bank's commitment to lend and make all sums of
principal and interest then remaining unpaid on all Borrower's indebtedness to
Bank immediately due and payable, all without demand, presentment or notice,
all of which are hereby expressly waived:
4.01 FAILURE TO PAY NOTE. Failure to pay any installment of principal or
interest on any indebtedness of Borrower to Bank.
4.02 BREACH OF COVENANT. Failure of Borrower to perform any other term or
condition of this Agreement binding upon Borrower.
4.03 BREACH OF WARRANTY. Any of Borrower's representations or warranties
made herein or any statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading in any
respect.
4.04 INSOLVENCY; RECEIVER OR TRUSTEE. Borrower shall become insolvent; or
admit its inability to pay its debts as they mature; or make an assignment for
the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
4.05 JUDGMENTS, ATTACHMENTS. Any money judgment, writ or warrant of
attachment, or similar process shall be entered or filed against Borrower or
any of its assets and shall remain unvacated, unbonded or unstayed for a period
later than five days prior to the date of any proposed sale thereunder.
4.06 BANKRUPTCY. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall be consented to.
5. MISCELLANEOUS PROVISIONS
5.01 FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
Bank or any holder of Notes issued hereunder, in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies
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existing under this Agreement or any note issued in connection with a loan that
Bank may make hereunder, are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
5.02 ADDITIONAL REMEDIES. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
5.03 INUREMENT. The benefits of this Agreement shall inure to the successors
and assigns of Bank and the permitted successors and assigns of Borrower.
5.04 APPLICABLE LAW. This Agreement and all other agreements and instruments
required by Bank in connection therewith shall be governed by and construed
according to the laws of the State of California, to the jurisdiction of whose
courts the parties hereby agree to submit.
5.05 OFFSET. In addition to and not in limitation of all rights of offset
that Bank or other holder of the Loan may have under applicable law, Bank or
other holder of the Notes shall, upon the occurrence of any Event of Default or
any event which with the passage of time or notice would constitute such an
Event of Default, have the right to appropriate and apply to the payment of the
Loan any and all balances, credits, deposits, accounts or moneys of Borrower
then or thereafter with Bank or other holder, within ten (10) days after the
Event of Default, and notice of the occurrence of any Event of Default by Bank
to Borrower.
5.06 SEVERABILITY. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
5.07 TIME OF THE ESSENCE. Time is hereby declared to be of the essence of
this Agreement and of every part hereof.
5.08 INTEGRATION CLAUSES. Except for documents the instruments specifically
referenced herein, the Agreement constitutes the entire agreement between Bank
and Borrower regarding the Loan, and all prior communications verbal or written
between Borrower and Bank shall be of no further effect or evidentiary value.
In the event of a conflict or inconsistency among any other documents and
instruments and this Agreement, the provisions of this Agreement shall prevail.
5.09 ACCOUNTING. All accounting terms shall have the meanings applied under
generally accepted accounting principles unless otherwise specified.
5.10 MODIFICATION. This Agreement may be modified only by a writing signed
by both parties hereto.
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This Agreement is executed on behalf of the parties by duly authorized
representatives as of December 19, 1996.
IMPERIAL BANK ("Bank")
By: /s/ [SIG]
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Title: Vice President
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TRITEAL CORPORATION ("Borrower")
By: /s/ [SIG]
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Title: CFO
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