Exhibit 10.13
[LOGO OF SANWA BANK APPEARS HERE]
EQUIPMENT PURCHASE LINE OF CREDIT AGREEMENT
This Equipment Purchase Line of Credit Agreement ("Agreement") is made and
entered into this 22nd day of August, 1994 by and between SANWA BANK CALIFORNIA
(the "Bank") and ISE LABS, INC. (the "Borrower").
SECTION I
DEFINITIONS
1.01. Certain Defined Terms. Unless elsewhere defined in this Agreement the
following terms shall have the following meanings (such meanings to be generally
applicable to the singular and plural forms of the terms defined):
A. "Advance" shall mean an advance to the Borrower under any line of
credit facility or similar facility provided for in Section II of this
Agreement which provides draws by the Borrower against an established
credit line.
B. "Business Day" shall mean a day, other than a Saturday or Sunday, on
which commercial banks are open for business in California.
C. "Collateral" shall mean the property in which the Bank is granted a
security interest pursuant to provisions of the section herein entitled
"Collateral", together with any other personal or real property in which
the Bank may be granted a lien or security interest to secure payment of
the Obligations.
D. "Debt" shall mean all liabilities of the Borrower less Subordinated
Debt.
E. "Effective Tangible Net Worth" shall mean the Borrower's stated net
worth plus Subordinated Debt but less all intangible assets of the
Borrower (i.e., goodwill, trademarks, patents, copyrights, organization
expense and similar intangible items).
F. "Environmental Claims" shall mean all claims, however asserted, by any
governmental authority or other person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death) property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedies or response costs,
restitution, civil or criminal penalties, injunctive relief, or other
type of relief, resulting from or based upon (i) the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or non-
accidental placement, spills, leaks, discharges, emissions or releases)
of any Hazardous Materials at, in, or from property owned, operated or
controlled by the Borrower, or (ii) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
G. "Environmental Laws" shall mean all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
governmental authorities, in each case relating to environmental, health,
safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Clean
Air Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the
Topic Substances Control Act, the Emergency Planning and Community Right-
to-Know Act, the California Hazardous Waste Control law, the California
Solid Waste Management, Resource, Recovery and Recycling Act, the
California Water Code and the California Health and Safety Code.
H. "Equipment" shall mean in connection with the Equipment Purchase
Facility contained in Section II of this Agreement, equipment as defined
in the California Uniform Commercial Code.
I. "Equipment Value" shall mean, in connection with the Equipment
Purchase Facility contained in Section II of this Agreement, the lesser
of: (i) the invoice cost of the Equipment (excluding taxes, license fees,
transportation costs, insurance premiums and installation and connection
expenses, fees and costs); (ii) the book value of the Equipment or (iii)
the liquidation value of the Equipment as determined by the Bank.
J. "ERISA" shall mean the Employment Retirement Income Security Act of
1974, as amended from time to time, including (unless the context
otherwise requires) any rules or regulations promulgated thereunder.
K. "Event of Default" shall have the meaning set forth in the section
herein entitled "Events of Default".
L. "Hazardous Material" shall mean all those substances which are
regulated by, or which may form the basis of liability under any
Environmental Law, including all substances identified under any
Environmental Law as a pollutant, contaminant, hazardous waste, hazardous
constiment, special waste, hazardous substance, hazardous material, or
toxic substance, or petroleum or petroleum derived substance or waste.
M. "Indebtedness" shall mean, with respect to the Borrower, (i) all
indebtedness for borrowed money or for the deferred purchase price of
property or services in respect of which the Borrower is liable,
contingently or otherwise, as obligor, guarantor or otherwise, or in
respect of which the Borrower otherwise assures a credit against loss and
(ii) obligations under leases which shall have been or should be, in
accordance with generally accepted accounting principles, reported as
capital leases in respect of which the Borrower is liable, contingently
or otherwise, or in respect of which the Borrower otherwise assures a
creditor against loss.
N. "Obligations" shall mean all amounts owing by the Borrower to the Bank
pursuant to this Agreement including, but not limited to, the unpaid
principal amount of Advances.
O. "Permitted Liens" shall mean: (i) liens and security interests
securing indebtedness owed by the Borrower to the Bank; (ii) liens for
taxes, assessments or similar charges either not yet due or being
contested in good faith, provided proper reserves are maintained therefor
in accordance with generally accepted accounting procedure; (iii) 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; (iv) purchase money liens or purchase money
security interests upon or in any property acquired or held by the
Borrower in the ordinary course of business to secure Indebtedness
outstanding in the date hereof or permitted to be incurred pursuant to
this Agreement; (v) liens and security interests which, as of the date
hereof, have been disclosed to and approved by the Bank in writing; and
(vi) those liens and security interests which in the aggregate constitute
an immaterial and insignificant monetary amount with respect to the net
value of the Borrower's assets.
P. "Reference Rate" shall mean an index for a variable interest rate
which is quoted, published or announced from time to time by the Bank as
its reference
(1)
rate and as to which loans may be made by the Bank at, below or above
such reference rate.
Q. "Subordinated Debt" shall mean such liabilities of the Borrower which
have been subordinated to those owed to the Bank in a manner acceptable
to the Bank.
1.02. Accounting Terms. All references to financial statements, assets,
liabilities, and similar accounting items not specifically defined herein shall
mean such financial statements or such items prepared or determined in
accordance with generally accepted accounting principles consistently applied
and, except where otherwise specified, all financial data submitted pursuant to
this Agreement shall be prepared in accordance with such principles.
1.03 Other Terms. Other terms not otherwise defined shall have the meanings
attributed to such terms in the California Uniform Commercial Code.
SECTION II
CREDIT FACILITIES
2.01 Commitment to Lend. Subject to the terms and conditions of this
Agreement and so long as no Event of Default occurs, the Bank agrees to extend
to the Borrower the credit accommodations that follow.
2.02 Equipment Purchase Facility. The Bank agrees to make loans and Advances
to the Borrower, upon the Borrower's written request therefor made prior to the
Expiration Date (as defined below in this Section 2.02), to assist the Borrower
in purchasing items of Equipment. Each Advance made hereunder shall be (in an
amount not to exceed 80% of the Value of the items of Equipment being purchased;
provided however, that at no time shall the total aggregate outstanding
principal amount of Advances made under this Equipment Purchase Facility exceed
the sum of $2,000,000.00. This Equipment Purchase Facility is on a
non-revolving basis and any amounts repaid under the Equipment Purchase Facility
may not be reborrowed.
A. Purpose. Advances made under the Equipment Purchase Facility shall be
used to purchase equipment.
B. Interest Rate. Interest shall accrue on the outstanding principal
balance of Advances under this Equipment Purchase Facility at a variable
rate equal to the Bank's Reference Rate, as it may change from time to
time (the "Variable Rate"). The Variable Rate shall be adjusted
concurrently with any change in the Reference Rate. Interest shall be
calculated on the basis of 360 days per year but charged on the actual
number of days elapsed.
C. Payment of Interest. The Borrower hereby promises and agrees to pay
interest monthly on the first day of each month, commencing on September
1, 1994.
D. Repayment of Principal. Unless sooner due in accordance with he terms
of this Agreement, on August 1, 1995 the Borrower hereby promises and
agrees to pay to the Bank in full the aggregate unpaid principal balance
of all Advances then outstanding, together with all accrued and unpaid
interest thereon.
Any payment received by the Bank shall, at the Bank's option, first be
applied to pay any late fees or other fees then due and unpaid, and then
to interest then due and unpaid and the remainder thereof (if any) shall
be applied to reduce principal.
E. Making Line Advances/Notice of Borrowing. Each Advance made hereunder
shall be conclusively deemed to have been made at the request of and for
the benefit of the Borrower (i) when credited to any deposit account of
the Borrower maintained with the Bank or (ii) when paid in accordance
with the Borrower's written instructions. Subject to any other
requirements set forth in this Agreement, Advances shall be made by the
Bank upon written notice received from the Borrower in form acceptable to
the Bank, which notice shall be received not later than 2:30 p.m.
(California Time) on the date specified for such Advance, which date
shall be a Business Day. Requests for Advances received after such time
may, at the Bank's option, be deemed to be a request for an Advance to be
made on the next succeeding Business Day.
F. Security Interest in Equipment. Upon the Bank's request, the Borrower
shall execute and deliver to the Bank, prior to the making of any Advance
under this Equipment Purchase Facility, such documents and instruments
(in form and substance satisfactory to the Bank) which the Bank may
require with respect to such Advance and the perfection of the Bank's
security interest in the Equipment pertaining to such Advance.
G. Late Fee. If any payment of principal or interest, or any portion
thereof, under this Equipment Purchase Facility is not paid within ten
(10) calendar days after it is due, a late payment charge equal to five
percent (5%) of such past due payment may be assessed and shall be
immediately payable.
H. Conversion to Term Loan. It is hereby agreed that the Borrower may,
by giving written notice to the Bank at least five (5) days prior to
August 1, 1995, convert the principal balance outstanding under the
Equipment Purchase facility as of the Expiration Date to be payable on a
term loan basis. The term loan (the "Converted Term Loan") shall be in
the amount of such outstanding principal balance and shall be evidenced
by a promissory note or credit agreement (the "Term Agreement")
containing the following payment terms: The Converted Term Loan shall be
for an amount not greater than the outstanding principal balance on the
date the Borrower elects the term loan conversion. The principal will be
payable monthly in 60 equal installments and interest will be payable
monthly at Reference Rate. Accrued and unpaid interest under the
Equipment Purchase facility shall be paid to the Bank concurrently with
the Borrower's execution of the Term Agreement. Interest shall accrue and
principal and interest shall be paid in accordance with the terms and
provisions of the Term Agreement.
I. Expiration of the Equipment Purchase Facility. Unless earlier
terminated in accordance with the terms of this Agreement, the Bank's
commitment to make Advances to the Borrower hereunder shall automatically
expire on August 1, 1995 (the "Expiration Date").
J. Line Account. The Bank shall maintain on its books a record of
account in which the Bank shall make entries for each Advance and such
other debits and credits as shall be appropriate in connection with the
Equipment Purchase Facility (the "Line Account"). The Bank shall provide
the Borrower with a monthly statement of the Borrower's Line Account,
which statement shall be considered to be correct and conclusively
binding on the Borrower unless the Borrower notifies the Bank to the
contrary within thirty (30) days after the Borrower's receipt of any such
statement which it deems to be incorrect.
K. Amounts Payable on Demand. If the Borrower fails to pay on demand any
amount so payable under this Agreement, the Bank may, at its option and
without any obligation to do so and without waiving any default
occasioned by the Borrower's failure to pay such amount, create an
Advance in an amount equal to the amount so payable, which Advance shall
thereafter bear interest as provided under this Equipment Purchase
Facility.
In addition, the Borrower hereby authorizes the Bank, if and to the
extent payment owed to the Bank under the Equipment Purchase Facility is
not made when due to charge, from time to time, against any or all of the
Borrower's deposit accounts with the Bank any amounts so due.
(2)
SECTION III
COLLATERAL
3.01. Grant of Security Interest. To secure payment and performance of all the
Borrower's Obligations under this Agreement and the performance of all the
terms, covenants and agreements contained in this Agreement (and any and all
modifications, extensions and renewals of the Agreement) and in any other
document instruments or agreement evidencing or related to the Obligations or
the Collateral, and also to secure all other liabilities, loans, guarantees,
covenants and duties owed by the Borrower to the Bank, whether or not evidenced
by this or by any other agreement, absolute or contingent, due or to become due,
now existing or hereafter and howsoever created, the Borrower hereby grants to
the Bank a security interest in and to all of the following property:
A. Equipment. All goods and equipment ("Equipment") now owned or hereafter
acquired by the Borrower or in which the Borrower now has or may hereafter
acquire any interest including, but not limited to, all machinery,
furniture, furnishings, fixtures, tools, supplies and motor vehicles of
every kind and description and all additions, accessions, improvements,
replacements and substitutions thereto and thereof.
B. Inventory. All inventory ("Inventory") now owned or hereafter acquired
by the Borrower including, but not limited to, all raw materials, work in
process, finished goods, merchandise, parts and supplies of every kind and
description, including inventory temporarily out of the Borrower's
custody or possession, together with all returns on accounts.
C. Accounts and Contract Rights. All accounts and contract rights now
owned or hereafter created or acquired by the Borrower, including but not
limited to, all receivables and all rights and benefits due to the
Borrower under any contract or agreement.
D. General Intangibles. All general intangibles now owned or hereafter
created or acquired by the Borrower, including but not limited to,
goodwill, trademarks, trade styles, trade names, patents, patent
applications, software, customer lists and business records.
E. Chattel Paper and Documents. All documents, instruments and chattel
paper now owned or hereafter acquired by the Borrower.
F. Monies and Other Property in Possession. All monies, and property of
the Borrower now or hereafter in the possession of the Bank or the Bank's
agents, or any one of them, including, but not limited to, all deposit
accounts, certificates of deposit, stocks, bonds, indentures, warrants,
options and other negotiable and non-negotiable securities and
instruments, together with all stock rights, rights to subscribe,
liquidating dividends, cash dividends, payments, dividends paid in stock,
new securities or other property to which the Borrower may become entitled
to receive on account of such property.
3.02. Continuing Lien & Proceeds. The Bank's security interest in the Collateral
shall be a continuing lien and shall include all proceeds and products of the
Collateral including, but not limited to, the proceeds of any insurance thereon
as well as all accounts, contract rights, documents, instruments and chattel
paper resulting from the sale or disposition of any Equipment.
3.03. Exclusion of Consumer Debt. The Obligations and performance secured hereby
shall not include any indebtedness of the Borrower incurred for personal, family
or household purposes except to the extent any disclosure required under any
consumer protection law (including but not limited to the Truth in Lending Act)
or any regulation thereto, as now existing or hereafter amended, is or has been
given.
SECTION IV
CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Initial Extension of Credit and/or First
Advance. The obligation of the Bank to make the initial extension of credit
and/or the first Advance hereunder is subject to the conditions precedent that
the Bank shall have received before the date of such extension of credit and/or
the first Advance all of the following, in form and substance satisfactory to
the Bank.
A. Authority to Borrow. Evidence relating to the duly given approval and
authorization of the execution, delivery and performance of this
Agreement, all other documents, instruments and agreement s required under
this Agreement and all other actions to be taken by the Borrower hereunder
or thereunder.
B. Loan Fees. Evidence that any required loan fees and expenses as set
forth above with respect to each credit facility have been paid or
provided for by the Borrower.
C. Audit. The opportunity to conduct an audit of the Borrower's books,
records and operations and the Bank shall be satisfied as to the condition
thereof.
D. Miscellaneous Documents. Such other documents, instruments, agreements
and opinions as are necessary, or as the Bank may reasonably require, to
consummate the transactions contemplated under this Agreement, all fully
executed.
4.02. Conditions Precedent All Extensions of Credit and/or Advances. The
obligation of the Bank to make any extensions of credit and/or each Advance to
or on account of the Borrower (including the initial extension of credit and/or
the first Advance) shall be subject to the further conditions precedent that, as
of the date of each extension of credit or Advance and after the making of such
extension of credit or Advance.
A. Representations and Warranties. The representations and warranties set
forth in the Section entitled "Representations and Warranties" herein and
in any other document, instruments, agreements or certificate delivered to
the Bank hereunder are true and correct.
B. Collateral. The security interest in the Collateral has been duly
authorized, created and perfected with first priority and is in full force
and effect and the Bank has been provided with satisfactory evidence of
all filings necessary to establish such perfection and priority.
C. Event of Default. No event has occurred and is continuing which
constitutes, or, with the Lapse of time or giving of notice or both, would
constitute an Event of Default.
D. Subsequent Approvals, Etc. The Bank shall have received such
supplemental approvals, opinions or documents as the Bank may reasonably
request.
4.03. Reaffirmation of Statements. For the purposes hereof, the Borrower's
acceptance of the proceeds of any extension of credit and the Borrower's
execution of any document or instrument evidencing or creating any Obligation
hereunder shall each be deemed to constitute this Borrower's representation and
warranty that the statements set forth above in this Section are true and
correct.
(3)
SECTION V
REPRESENTATIONS AND WARRANTIES
The Borrower hereby makes the following representations and warranties to the
Bank, which representations and warranties are continuing:
5.01. Status. The Borrower is a corporation duly organized and validly
existing under the laws of the State of California and is properly licensed,
qualified to do business and in good standing in and, where necessary to
maintain the Borrower's rights and privileges, has complied with the fictitious
name statute of every jurisdiction in which the Borrower is doing business.
5.02. Authority. The execution, delivery and performance by the Borrower of
this Agreement and any instrument, document or agreement required hereunder have
been duly authorized and do not and will not; (i) violate any provision of any
law, rule, regulation, writ, judgment or injunction presently in effect
affecting the Borrower; (ii) result in a breach of or constitute a default under
any material agreement to which the Borrower is a party or by which it or its
properties may be bound or affected; or (iii) require any consent or approval
of its stockholders or violate any provision of its articles of incorporation or
by-laws.
5.03. Legal Effect. This Agreement constitutes, and any document, instrument
or agreement required hereunder when delivered will constitute, legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
5.04. Fictitious Trade Styles. The Borrower currently uses no fictitious trade
styles in connection with its business operations. The Borrower shall notify
the Bank within thirty (30) days of the use of any fictitious trade style at any
future date, indicating the trade style and state(s) of its use.
5.05. Financial Statements. All financial statements, information and other
data which may have been and which may hereafter be submitted by the Borrower to
the Bank are true, accurate and correct and have been and will be prepared in
accordance with generally accepted accounting principles consistently applied
and accurately represent the Borrower's financial condition and, as applicable,
the other information disclosed therein. Since the most recent submission of any
such financial statement, information or other data to the Bank, the Borrower
represents and warrants that no material adverse change in the Borrower's
financial condition or operations has occurred which has not been fully
disclosed to the Bank in writing.
5.06. Litigation. Except as have been disclosed to the Bank in writing, there
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or the Borrower's
properties before any court or administrative agency which, if determined
adversely to the Borrower, would have a material adverse effect on the
Borrower's financial condition, operations or the Collateral.
5.07. Title to Assets. The Borrower has good and marketable title to all of
its assets (including, but not limited to, the Collateral) and the same are not
subject to any security interest, encumbrance, lien or claim of any third person
except for Permitted Liens.
5.08. ERISA. If the Borrower has a pension, profit sharing or retirement plan
subject to ERISA, such plan has been and will continue to be funded in
accordance with its terms and otherwise complies with and continues to comply
with the requirements of ERISA.
5.09. Taxes. The Borrower has filed all tax returns required to be filed and
paid all taxes shown thereon to be due, including interest and penalties, other
than taxes which are currently payable without penalty or interest or those
which are being duly construed in good faith.
5.10. Environmental Compliance. The operations of the Borrower comply, and
during the term of this Agreement will at all times comply, in all respects with
all Environmental Laws; the Borrower has obtained licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits") and necessary for its ordinary operations, all such
Environmental Permits are in good standing, and the Borrower is in compliance
with all material terms and conditions of such Environmental Permits; neither
the Borrower nor any of its present properties or operations are subject to any
outstanding written order from or agreement with any governmental authority nor
subject to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material; there are no
Hazardous Materials or other conditions or circumstances existing, or arising
from operations prior to the date of this Agreement, with respect to any
property of the Borrower that would reasonably be expected to give rise to
Environmental Claims; provided however, that with respect to property leased
from an unrelated third party, the foregoing representation is made to the best
knowledge of the Borrower. In addition, (i) the Borrower does not have or
maintain any underground storage tanks which are not properly registered or
permitted under applicable Environmental Laws or which are leaking or disposing
of Hazardous Material off-site, and (ii) the Borrower has notified all of its
employees of the existence, if any, of any health hazard arising from the
conditions of their employment and have met all notification requirements under
Title III of CERCLA and all other Environmental Laws.
SECTION VI
COVENANTS
The Borrower covenants and agrees that, during the term of this Agreement, and
so long thereafter as the Borrower is indebted to the Bank under this Agreement,
the Borrower shall, unless the Bank otherwise consents in writing:
6.01. Preservation of Existence; Compliance with Applicable Laws. Maintain and
preserve its existence and all rights and privileges now enjoyed; not liquidate
or dissolve, merge or consolidate with or into, or acquire any other business
organization; and conduct its business in accordance with all applicable laws,
rules and regulations.
6.02. Maintenance of Insurance. Maintain insurance in such amounts and
covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the
Borrower operates and maintain such other insurance and coverages as may be
required by the Bank. All such insurance shall be in form and amount and with
companies satisfactory to the Bank. With respect to insurance covering
properties in which the Bank maintains a security interest or lien, such
insurance shall be in an amount not less than the full replacement value
thereof, at the Bank's request, shall name the Bank as loss payee pursuant to a
loss payable endorsement satisfactory to the Bank and shall not be altered or
canceled except upon ten (10) days' prior written notice to the Bank. Upon the
Bank's request, the Borrower shall furnish the Bank with the original policy or
binder of all such insurance.
6.03. Maintenance of Collateral and Other Properties. Except for Permitted
Liens, the Borrower shall keep and maintain the Collateral free and clear of all
levies, liens, encumbrances and security interests (including but not limited
to, any lien of attachment, judgment or execution) and defend the Collateral
against any such levy, lien, encumbrance or security interest; comply with all
laws, statutes and regulations pertaining to the Collateral and its use and
operation; execute, file and record such statements, notices and agreements,
take such actions and obtain such certificates and other documents as necessary
to perfect, evidence and constitute the Bank's security interest in the
Collateral and the priority thereof; maintain accurate and complete records of
the Collateral which show all sales, claims and allowances; and properly care
for, house, store and maintain the Collateral in good condition, free of misuse,
abuse and deterioration, other than normal wear and tear. The Borrower shall
also maintain and preserve all its properties in good working order and
condition in accordance with the general practice of other businesses of similar
character and size, ordinary wear and tear excepted.
6.04. Location and Maintenance of Equipment.
(4)
A. Location. The Equipment shall at all times be in the Borrower's
physical possession, shall not be held for sale or lease and shall be
kept only at the following locations(s): 2095 Ringwood Avenue, San Jose,
CA 95131.
The Borrower shall not desicrate, abandon or remove, or permit the
removal of, the Equipment, or any part thereof, from the locations(s)
shown above or remove or permit to be removed any accessories now or
hereafter placed upon the Equipment.
B. Equipment Schedules. Upon the Bank's demand, the Borrower shall
immediately provide the Bank with a complete and accurate description of
the Equipment including, as applicable, the make, model, identification
number and serial number of each item of Equipment. In addition, the
Borrower shall immediately notify the Bank of the acquisition of any new
or additional Equipment or the replacement of any existing Equipment and
shall supply the Bank with a complete description of any such additional
or replacement Equipment.
C. Maintenance of Equipment. The Borrower shall, at the Borrower's sole
cost and expense, keep and maintain the Equipment in a good state of
repair and shall not destroy, misuse, abuse, illegally use or be
negligent in the care of the Equipment or any part thereof. The Borrower
shall not remove, destroy, obliterate, change, cover, paint, deface or
alter the name plates, serial numbers, labels or other distinguishing
numbers or identification marks placed upon the Equipment or any part
thereof by or on behalf of the manufacturer, any dealer or rebuilder
thereof, or the Bank. The Borrower shall allow the Bank and its
representatives free access to and the right to inspect the Equipment at
all times and shall comply with the terms and conditions of any leases
covering the real property on which the Equipment is located and any
orders, ordinances, laws, regulations or rules or any federal, state or
municipal agency or authority having jurisdiction of such real property
or the conduct of business of the persons having control or possession of
the Equipment.
D. Fixtures. The Equipment is not now and shall not at any time hereafter
be so affixed to the real property on which it is located as to become a
fixture or a part thereof. The Equipment is now and shall at all times
hereafter be and remain personal property of the Borrower.
6.05. Location of Inventory. The Inventory (i) is now and shall at all times
hereafter be of good and merchantable quality and free from defects; (ii) is not
now and shall not at any time hereafter be served with a bailee, warehouseman
or similar party without the Bank's prior written consent and, in such event,
the Borrower will concurrently therewith cause any such bailee, warehouseman or
similar party to issue and deliver to the Bank in form acceptable to the Bank,
warehouse receipts in the Bank's name evidencing the storage of Inventory; (iii)
shall at all times be in the Borrower's physical possession; (iv) shall not be
held by others on consignment, sale on approval, or sale or return: and (v)
shall be kept only at the following locations(s): 2095 Ringwood Avenue, San
Jose, CA 95131.
6.06. Payment of Obligations and Taxes. Make timely payment of all assessments
and taxes and all of its liabilities and obligations including, but not limited
to, trade payables, unless the same are being contested in good faith by
appropriate proceedings with the appropriate court or regulatory agency. For
purposes hereof, the Borrower's issuance of a check, draft or similar instrument
without delivery to the intended payee shall not constitute payment.
6.07. Inspection Rights. At any reasonable time and from time to time permit
the Bank or any representative thereof to examine and make copies of the records
and visit the properties of the Borrower and to discuss the business and
operations of the Borrower with any employee or representative thereof. If the
Borrower now or at any time hereafter maintains any records (including, but not
limited to, computer generated records and computer programs for the generation
of such records) in the possession of a third party, the Borrower hereby agrees
to notify such third party to permit the Bank free access to such records at all
reasonable times and to provide the Bank with copies of any records it may
request, all at the Borrower's expense, the amount of which shall be payable
immediately upon demand. In addition, the Bank may, at any reasonable time and
from time to time conduct inspections and audits of the Collateral and the
Borrower's accounts payable, the cost and expenses of which shall be paid by the
Borrower to the Bank upon demand.
6.08. Reporting Requirement. Deliver or cause to be delivered to the Bank in
form and detail satisfactory to the Bank:
A. Interim Statements. Not later than 45 days after the end of each
quarter, the Borrower's financial statement as of the end of such
quarter.
B. Receivables and Payables Agings. Not later than 45 days after the end
of each quarter, an aging of accounts receivable and an aging of accounts
payable.
C. Other Reporting Requirements. Borrower to provide; (i) a CPA reviewed
financial statement within 30 days of filing Borrower's Schedule 1020,
but not later than March 1st of each calendar year, beginning October
1994; and (ii) by March 1st of each calendar year, an annual
certification by the Chief Financial Officer that the company is in
compliance with all loan covenants and conditions.
D. Other Information. Promptly upon the Bank's request, such other
information pertaining to the Borrower, the Collateral, or any Guarantor
as the Bank may reasonably request.
6.09. Payment of Dividends. The Borrower shall not declare or pay any dividends
on any class of stock now or hereafter outstanding except dividends payable
solely in the corporation's capital stock.
6.10. Redemption or Repurchase of Stock. The Borrower shall not redeem or
repurchase any class of the corporation's stock now or hereafter outstanding.
6.11. Additional Indebtedness. Not after the date hereof, create, incur or
assume, directly or indirectly, any liability or indebtedness other than (i)
indebtedness owed or to be owed to the Bank or (ii) indebtedness to trade
creditors incurred in the ordinary course of the Borrower's business.
6.12. Loans. Not make any loans or advances or extend credit to any third
person, including, but not limited to, directors, officers, shareholders,
partners, employees, affiliated entities or subsidiaries of the Borrower, except
for credit extended in the ordinary course of the Borrower's business as
presently conducted.
6.13. Liens and Encumbrances. Not create, assume or permit to exist any
security interest, encumbrance, mortgage, deed of trust or other lien
(including, but not limited to, a lien of attachment, judgment or execution)
affecting any of the Borrower's properties, or execute or allow to be filed any
financing arrangement continuation thereof affecting any such properties, except
for Permitted Liens or as otherwise provided in this Agreement without prior
written approval from Sanwa Bank.
6.14. Transfer Assets. Not sell, contract for sale, transfer, convey, assign,
lease or sublet any of its assets including, but not limited to, the
Collateral, except in the ordinary course of business as presently conducted by
the Borrower and then, only for full, fair and reasonable consideration.
6.15. Change in the Nature of Business. Not make any material change in the
financial structure or in the nature of its business as existing or conducted as
of the date of this Agreement.
6.16. Financial Condition. Maintain at all times:
A. Net Worth. A minimum Effective Tangible Net Worth of not less than
$5,000,000.00.
B. Debt to Net Worth Ratio. A Debt to Effective Tangible Net Worth ratio
of not more than 2.00 to 1.00.
C. Quick Ratio. A rate of liquid assets to current liabilities of not
less than 1.00 to 1.00.
D. Additional Financial Requirement. The following additional financial
requirement: A minimum Debt Service Coverage Ratio of 1.50 to 1.00
measured annually at fiscal year end. For purposes of the foregoing, the
term "Debt Service Coverage Ratio" is defined as net after tax profit
plus depreciation divided by the current portion of long term debt.
(5)
6.17. Compensation of Employees. Compensate its employees for services rendered
at an hourly rate at least equal to minimum hourly rate prescribed by any
applicable federal or state law or regulation.
6.18. Other Restrictions. Borrower to be profitable annually.
6.19. Environmental Compliance. The Borrower shall:
A. Conduct its operations and keep and maintain all of its properties in
compliance with all Environmental Laws.
B. Give prompt written notice to the Bank but in no event later than 10
days after becoming aware, of the following: (i) any enforcement,
cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against the Borrower or any of its affiliates or
any of their respective properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in
the vicinity of the property of the Borrower or its affiliates that could
reasonably be anticipated to cause such property or any part thereof to
be subject to any restrictions on the ownership, occupancy,
transferability or use of such property under any Environmental Laws.
C. Upon the written request of the Bank, the Borrower shall submit to the
Bank, at the Borrower's sole cost and expense, at reasonable intervals, a
report providing an update of the names of any environmental, health or
safety compliance, hazard or liability issue identified in any notice
required pursuant to this Section.
D. At all times indemnify and hold harmless the Bank from and against any
and all liability arising out of any Environmental Claims.
6.20. Notice. Give the Bank prompt written notice of any and all (i) Events of
Default; (ii) litigation, arbitration or administrative proceedings to which the
Borrower is a party and which affects the Collateral; (iii) any change in its
place of business or the acquisition of more than one place of business; (iv)
any proposed or actual change in its name, identity or business nature; (v) any
change in the location of the Equipment or Inventory; and (vi) other matters
which have resulted in, or might result in a material adverse change in the
Collateral or the financial condition or business operations of the Borrower.
SECTION VII
EVENTS OF DEFAULT
Any one or more of the following described events shall constitute an event of
default under this Agreement.
7.01. Non-Payment. The Borrower shall fail to pay any Obligations within 10
days of when due.
7.02. Performance Under This and Other Agreements. The Borrower shall fail in
any material respect to perform or observe any term, covenant or agreement
contained in this Agreement or in any document, instrument or agreement
evidencing or relating to any indebtedness of the Borrower (whether owed to the
Bank or third persons), and any such failure (exclusive of the payment of money
to the Bank under this Agreement or under any other document, instrument or
agreement, which failure shall constitute and be an immediate Event of Default
if not paid when due or when demanded to be due) shall continue for more than 30
days after written notice from the Bank to the Borrower of the existence and
character of such Event of Default.
7.03. Representations and Warranties: Financial Statements. Any representation
of warranty made by the Borrower under or in connection with this Agreement or
any financial statement given by the Borrower or any Guarantor shall prove to
have been incorrect in any material respect when made or given or when deemed to
have been made or given.
7.04. Insolvency. The Borrower or any Guarantor shall: (1) become insolvent or
be unable to pay its debts as they mature; (ii) make an assignment for the
benefit of creditors or to an agent authorized to liquidate any substantial
amount of its properties or assets; (iii) file a voluntary petition in
bankruptcy or seeking reorganization or to effect a plan or other arrangement
with creditors; (iv) file an answer admitting the material allegations of an
involuntary petition relating to bankruptcy or reorganization or join in any
such petition; (v) become or be adjudicated a bankrupt; (vi) apply for or
consent to the appointment of, or consent that an order be made, appointing any
receiver, custodian or trustee for itself or any of its properties, assets or
businesses; or (vii) any receiver, custodian or trustee shall have been
appointed for all or a substantial part of its properties assets or businesses
and shall not be discharged within 30 days after the date of such appointment.
7.05. Execution. Any writ of execution or attachment or any judgment lien shall
be issued against any property of the Borrower and shall not be discharged or
bonded against or released within 30 days after the issuance or attachment of
such writ or lien.
7.06. Revocation or Limitation of Guaranty. Any Guaranty shall be revoked or
limited or its enforceability or validity shall be contested by any Guarantor,
by operation of law, legal proceeding or otherwise or any Guarantor who is a
natural person shall die.
7.07. Suspension. The Borrower shall voluntarily suspend the transaction of
business or allow to be suspended, terminated, revoked or expired any permit
license or approval of any governmental body necessary to conduct the Borrower's
business as now conducted.
7.08. Change in Ownership. There shall occur a sale, transfer, disposition or
encumbrance (whether voluntary or involuntary), or an agreement shall be entered
into to do so, with respect to more than 10% of the issued and outstanding
capital stock of the Borrower.
7.09. Impairment of Collateral. There shall occur any injury or damage to all
or any part of the Collateral or all or any part of the Collateral shall be
lost, stolen or destroyed, which changes cause the Collateral, in the sole and
absolute judgement of the Bank, to become unacceptable as to character and
value.
SECTION VIII
REMEDIES ON DEFAULT
Upon the occurrence of any Event of Default, the Bank may, at its sole election,
without demand and upon only such notice as may be required by law:
8.01. Acceleration. Declare any or all of the Borrower's indebtedness owing to
the Bank, whether under this Agreement or under any other document, instrument
or agreement, immediately due and payable, whether or not otherwise due and
payable.
8.02. Cease Extending Credit. Cease making Advances or otherwise extending
credit to or for the account of the Borrower under this Agreement or under any
other agreement now existing or hereafter entered into between the Borrower and
the Bank.
8.03. Termination. Terminate this Agreement as to any future obligation of the
Bank without affecting the Borrower's obligations to the Bank or the Bank's
rights and remedies under this Agreement of under any other document,
instrument or agreement.
8.04. Segregate Collections. Require the Borrower to segregate all collections
and proceeds of the Collateral so that they are capable of identification and to
deliver such collections and proceeds to the Bank, in kind, without commingling,
at such times and in such manner as required by the Bank.
(6)
8.05. Records of Collateral. Require the Borrower to periodically deliver to the
Bank records and schedules showing the status, condition and location of the
Collateral and such contracts or other matters which affect the Collateral. In
connection herewith, the Bank may conduct such audits or other examination of
such records, including, but not limited to, verification of balances owing by
any account debtor of the Borrower, as the Bank, in its sole and absolute
discretion, deems necessary.
8.06. Notification of Account Debtors.
A. Notify any or all of the Borrower's Account Debtors, or any buyers or
transferees of the Collateral or other persons of the Bank's interest in
the Collateral and the proceeds thereof and instruct such person(s) to
thereafter make any payment due the Borrower directly to the Bank.
B. The Borrower hereby irrevocably and unconditionally appoints the Bank
as its attorney-in-fact to: (i) endorse the Borrower's name on any notes,
acceptances, checks, drafts, money orders or other evidence of payment
that may come into the Bank's possession; (ii) sign the Borrower's name on
any invoice or bill of lading relating to any of the Collateral; (iii)
notify post office authorities to change the address for delivery of mail
addressed to the Borrower to such address as the Bank may designate and
take possession of and open mail addressed to the Borrower and remove
therefrom, proceeds of and payments on the Collateral; and (iv) demand,
receive and endorse payment and give receipts, releases and satisfactions
for and sue for all money payable to the Borrower. All of the preceding
may be done either in the name of the Bank or in the name of the Borrower
with the same force and effect as the Borrower could have done had this
Agreement not been entered into.
C. Require the Borrower to indicate on the face of all invoices (or such
other documentation as may be specified by the Bank relating to the sale,
delivery or shipment of goods giving ???? to the account) that the account
has been assigned to the Bank and that all payments are to be made
directly to the Bank at such address as the Bank may designate.
8.07. Compromise. Grant extensions, compromise claims and settle any account for
less than the amount owing thereunder, all without notice to the Borrower or any
obligor on or guarantor of the Obligations.
8.08. Protection of Security Interest. Make such payments and do such acts as
the Bank, in its sole judgement, considers necessary and reasonable to protect
its security interest or lien in the Collateral. The Borrower hereby irrevocably
authorizes the Bank to pay, purchase, contest or compromise any encumbrance,
lien or claim which the Bank, in its sole judgement, deems to be prior or
superior to its security interest. Further, the Borrower hereby agrees to pay to
the Bank, upon demand therefor, all expenses and expenditures (including
attorneys' fees) incurred in connection with the foregoing.
8.09. Foreclosure. Enforce any security interest or lien given or provided for
under this Agreement or under any security agreement, mortgage, deed of trust or
other document relating to the Collateral, in such manner and such order, as to
all or any part of the Collateral, as the Bank, in its sole judgement, deems to
be necessary or appropriate and the Borrower hereby waives any and all rights,
obligations or defenses now or hereafter established by law relating to the
foregoing. In the enforcement of its security interest or lien, the Bank is
authorized to enter upon the premises where any Collateral is located and take
possession of the Collateral or any part thereof, together with the Borrower's
records pertaining thereto, or the Bank may require the Borrower to assemble the
Collateral and records pertaining thereto and make such Collateral and records
available to the Bank at a place designated by the Bank. The Bank may sell the
Collateral or any portions thereof, together with all additions, accessions and
accessories thereto, giving only such notices and following only such procedures
as are required by law, at either a public or private sale, or both, with or
without having the Collateral present at the time of sale, which sale shall be
on such terms and conditions and conducted in such manner as the Bank determines
in its sole judgement to be commercially reasonable. Any deficiency which exists
after the disposition or liquidation of the Collateral shall be a continuing
liability of any obligor on or any guarantor of the Obligations and shall be
immediately paid to the Bank.
8.10. Application of Proceeds. All amounts received by the Bank as proceeds from
the disposition or liquidation of the Collateral shall be applied to the
Borrower's indebtedness to the Bank as follows: first, to the costs and expenses
of collection, enforcement, protection and preservation of the Bank's lien in
the Collateral, including court costs and reasonable attorneys' fees, whether or
not suit is commenced by the Bank; next, to those costs and expenses incurred by
the Bank in protecting, preserving, enforcing, collecting, selling or disposing
of the Collateral; next, to the payment of accrued and unpaid interest on all of
the Obligations; next, to the payment of the outstanding principal balance of
the Obligations; and last, to the payment of any other indebtedness owed by the
Borrower to the Bank. Any excess Collateral or excess proceeds existing after
the disposition or liquidation of the Collateral will be returned or paid by the
Bank to the Borrower.
8.11. Non-Exclusivity of Remedies. Exercise one or more of the Bank's rights set
forth herein or seek such other rights or pursue such other remedies as may be
provided by law, in equity or in any other agreement now existing or hereafter
entered into between the Borrower and the Bank, or otherwise.
SECTION IX
MISCELLANEOUS PROVISIONS
9.01. Default Interest Rate. If an Event of Default has occurred and is
continuing, the Bank, at its option, may require the Borrower to pay to the Bank
interest on any Indebtedness or amount payable under this Agreement at a rate
which is 3% in excess of the rate or rates otherwise then in effect under this
Agreement.
9.02. Reliance. Each warranty, representation, covenant and agreement contained
in this Agreement shall be conclusively presume to have been relied upon by the
Bank regardless of any investigation made or information possessed by the Bank
and shall be cumulative and in addition to any other warranties,
representations, covenants or agreements which the Borrower shall now or
hereafter give, or cause to be given, to the Bank.
9.03. Dispute Resolution.
A. Disputes. It is understood and agreed that, upon the request of any
party to this Agreement, any dispute, claim or controversy of any kind,
whether in contract or in tort, statutory or common law, legal or
equitable, now existing or hereinafter arising between the parties in any
way arising out of, pertaining to or in connection with: (i) this
Agreement, or any related agreements, documents or instruments, (ii) all
past and present loans, credits, accounts, deposit accounts (whether
demand deposits or time deposits) safe deposit boxes, safekeeping
agreements, guarantees, letters of credit, goods or services, or other
transactions, contracts or agreements of any kind, (iii) any incidents,
omissions, acts, practices, or occurrences causing injury to any party
whereby another party or its agents, employees or representatives may be
liable, in whole or in part, (iv) any aspect of the past or present
relationships of the parties, shall be resolved through a two-step dispute
resolution process administered by the Judicial Arbitration & Mediation
Services, Inc. ("JAMS") as follows:
B. Step I - Mediation. At the request of any party to the dispute, claim
or controversy, the matter shall be referred to the nearest office of JAMS
for mediation, which is an informal, non-binding conference or conferences
between the parties in which a retired judge or justice from the JAMS
panel will seek to guide the parties to a resolution of the case.
C. Step II - Arbitration (Contracts Not Secured By Real Property). Should
any dispute, claim or controversy remain unresolved at the conclusion of
the Step I Mediation Phase, then (subject to the restriction at the end of
this subparagraph) all such remaining matters shall be resolved by final
and binding arbitration before a different judicial panelist, unless the
parties shall agree to have the mediator panelist act as arbitrator. The
hearing shall be conducted at a location determined by the arbitrator in
Los Angeles, California (or such other city as may be agreed upon by the
parties) and shall be administered by and in
(7)
accordance with the then existing Rules of Practice and Procedure of JAMS
and judgement upon any award rendered by the arbitrator may be entered by
any State of Federal Court having jurisdiction thereof. The arbitrator shall
determine which is the prevailing party and shall include in the award that
party's reasonable attorney's fees and costs. This subparagraph shall apply
only if, at the time of the submission of the matter to JAMS, the dispute or
issues involved do not arise out of any transaction which is secured by real
property collateral or, if so secured, all parties consent to such
submission.
As soon as practicable after selection of the arbitrator, the arbitrator, or
the arbitrator's designated representative, shall determine a reasonable
estimate of anticipated fees and costs of the arbitrator, and render a
statement to each party setting forth that party's pro-rata share of said
fees and costs. Thereafter, each party shall, within 10 days of receipt of
said statement, deposit said sum with the arbitrator. Failure of any party
to make such a deposit shall result in a forfeiture by the non-depositing
of the right to prosecute or defend the claim which is the subject of the
arbitration, but shall not otherwise serve to abate, stay or suspend the
arbitration proceedings.
D. Step II-Trial By Court Reference (Contracts Secured By Real Property). If the
dispute, claim or controversy is not one required or agreed to be submitted to
arbitration, as provided in the above subparagraph, and has not been resolved by
Step I mediation, then any remaining dispute, claim or controversy shall be
submitted for determination by a trial on Order of Reference conducted by a
retired judge or justiee from the panal of JAMS appointed pursuant to the
provisions of Section 638(1) of the California Code of Civil Procedure, or any
amendment, addition or successor section thereto, to hear the case and report a
statement of decision thereon. The parties intend this general reference
agreement to be specifically enforceable in accordance with said section. If the
parties are unable to agree upon a member of the JAMS panel to act as referee,
then one shall be appointed by the Presiding Judge of the county wherein the
hearing is to be held. The parties shall pay in advance, to the referee, the
estimated reasonable fees and costs of the reference, as may be specified in
advance by the referee. The parties shall initially share equally, by paying
their proportionate amount of the estimated fees and costs of the reference.
Failure of any party to make such a fee deposit shall result in a forfeiture by
the non-depositing party of the right to prosecute or defend any cause of action
which is the subject of the reference, but shall not otherwise serve to abate,
stay or suspend the reference proceeding.
E. Provisional Remedies, Self Help and Foreclosure. No provision of, or the
exercise of any rights under any portion of this Dispute Resolution provision,
shall limit the right of any party to exercise self help remedies such as set
off, foreclosure against any real or personal property collateral, or the
obtaining of provisional or ancillary remedies, such as injunctive relief of the
appointment of a receiver, from any court having jurisdiction before, during or
after the pendency of any arbitration. At the Bank's option, foreclosure under a
deed of trust or mortgage may be accomplished either by exercise of power of
sale under the deed of trust or mortgage, or by judicial foreclosure. The
institution and maintenance of an action for provisional remedies, pursuit of
provisional or ancillary remedies or exercise of self help remedies shall not
communicate a waiver of the right of any party to submit the controversy or
claim to arbitration.
9.04. Waiver of Jury. The Borrower and the Bank hereby expressly and voluntarily
waive any and all rights, whether arising under the California constitution, any
rules of the California Code of Civil Procedure, common law or otherwise, to
demand a trial by jury in any action, manner, claim or cause of action
whatsoever arising out of or in any way related to this Agreement or any other
agreement, document or transaction contemplated hereby.
9.05. Restructuring Expenses. In the event the Bank and the Borrower negotiate
for, or enter into, any restructuring, modification or refinancing of the
Indebtedness under this Agreement for the purposes of remedying an Event of
Default, The Bank, may require the Borrower to reimburse all of the Bank's costs
and expenses incurred in connection therewith, Including, but not limited to
reasonable attorney's fees and the costs of any audit or appraisals required by
the Bank to be performed connection with such restructuring, modification or
refinancing.
9.06. Attorney's Fees. In the event of any suit, mediation, arbitration or
other action in relation to this Agreement or any document, instrument or
agreement executed with respect to, evidencing or securing the indebtedness
hereunder, the prevailing party, in addition to all other sums to which it may
be entitled, shall be entitled to reasonable attorney's fees.
9.07. Notices. All notices, payments, requests, information and demands wich
either party hereto may desire, or may be required to give or make to the other
party shall be given or made to such party by hand delivery or through deposit
in the United States mail, postage prepaid, or by Western Union telegram,
addressed to the address set forth below such party's signature to this
Agreement or to such other address as maybe specified from time to time in
writing by either party to the other.
9.08. Waiver. Neither the failure nor delay by the Bank in exercising any right
hereunder or under any document, instrument or agreement mentioned herein shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right hereunder or under any document, instrument or agreement mentioned herein
preclude other or further exercise thereof or the exercise of any other right;
nor shall any waiver of any right or default hereunder or under any other
document, instrument or agreement mentioned herein constitute a waiver of any
other default of the same or any other term or provision.
9.09. Conflicting Provisions. To the extent that any of the terms or provisions
contained in this Agreement are inconsistent with those contained in any other
document, instrument or agreement executed pursuant hereto, the terms and
provisions combined herein shall control. Otherwise, such provisions shall be
considered cumulative.
9.10. Binding Effect; Assignment. This Agreement shall be binding upon and more
to the benefit of the Borrower and the Bank and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder or any interest herein without the Bank's prior written consent. The
Bank may sell, assign or grant participations in all or any portion of its
rights and benefits hereunder. The Borrower agrees that, in connection with any
such sale, grant or assignment, the Bank may deliver to the prospective buyer,
participant or assignee financial statements and other relevant information
relating to the Borrower and any guarantor.
9.11. Jurisdiction. This Agreement, any notes issued hereunder, the rights of
the parities hereunder to and concerning the Collateral, and any documents,
instruments or agreements mentioned or referred to herein shall be governed by
and consumed according to the laws of the State of California, to the
jurisdiction of whose courts the parties hereby submit.
9.12. Headings. The headings set forth herein are solely for the purpose of
identification and have no legal significance.
9.13. Entire Agreement. This Agreement and all documents, instruments and
agreements mentioned herein constitute the entire and complete understanding of
the parties with respect to the transactions contemplated hereunder. All
previous conversations, memoranda and writings between the parties or
pertaining to the transactions contemplated hereunder that are not incorporated
or referenced in this Agreement or in such documents, instruments and agreements
are superseded hereby.
(8)
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first hereinabove written.
BANK: BORROWER:
SANWA BANK CALIFORNIA ISE LABS, INC.
By: By: /s/ Saeed A. Malik
------------------------------- -----------------------------------
Name/Title Saeed A. Malik, President
Address: By: /s/ Alex M. Barrios
-----------------------------------
Mountain View Office Alex M. Barrios, Vice President
601 Showers Drive
P.O. Box 670 By: /s/ Lawrence F. Jorstad
Mountain View, CA 94040 -----------------------------------
Lawrence F. Jorstad, Vice President
Address:
2095 Ringwood Avenue
San Jose, CA 95131
(9)
[LOGO OF SANWA BANK
CALIFORNIA APPEARS
HERE]
LOAN DISBURSEMENT INSTRUCTIONS
($2,000,000.00 Equipment Purchase Facility)
Date: August 22, 1994 Loan Number:
-------------
The undersigned hereby instructs Sanwa Bank California to disburse the proceeds
of this loan as shown below:
DISBURSEMENT AMOUNT
1. Credited to the following account: NOT PRESENTLY DISBURSED $-0-
---------------------------- -----------
---------------------------------------------------------------
2. Pay off the following loan with Sanwa Bank California: $
-------- -----------
---------------------------------------------------------------
3. Paid to the following third party as indicated: $
--------------- -----------
---------------------------------------------------------------
===========
TOTAL: $-0-
-----------
BORROWER:
ISE LABS, INC.
By: /s/ Saeed A. Malik
-----------------------------------
Saeed A. Malik, President
By: /s/ Alex M. Barrios
-----------------------------------
Alex M. Barrios, Vice President
By: /s/ Laurence F. Jorstad
-----------------------------------
Laurence F. Jorstad, Vice President
(1)