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EXHIBIT 10.19(E)
CHANGE IN TERMS AGREEMENT
PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER INITIALS
$1,000,000.00 05-09-2001 08-10-2001 0400706198 016/6666 120144 019
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing ***** has been omitted due to text length limitations.
BORROWER: FAFCO, INC. LENDER: BUTTE COMMUNITY BANK
435 OTTERSON DRIVE CHICO OFFICE
CHICO, CA 95928 2041 FOREST AVE
CHICO, CA 95928
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PRINCIPAL AMOUNT: $1,000,000.00 INITIAL RATE: 9.000%
DATE OF AGREEMENT: MAY 9, 2001
DESCRIPTION OF EXISTING INDEBTEDNESS. THIS IS A VARIABLE RATE (1.500% OVER
PRIME RATE AS PUBLISHED BY BUTTE COMMUNITY BANK, MAKING AN INITIAL RATE OF
10.500%), NONDISCLOSABLE REVOLVING LINE OF CREDIT LOAN TO A CORPORATION
FOR $1,000,000.00 DUE ON MAY 10, 2001.
DESCRIPTION OF COLLATERAL. All Inventory, Chattel Paper, Accounts,
Equipment, General Intangibles and Fixtures, including but not limited to
ALL GOODWILL, TRADEMARKS, SERVICEMARKS, TRADE STYLES, TRADE NAMES,
PATENTS, PATENT APPLICATIONS, LEASES, LICENSE AGREEMENT, FRANCHISE
AGREEMENTS, BLUEPRINTS, DRAWINGS, PURCHASE ORDERS, CUSTOMER LISTS, ROUTE
LISTS, INFRINGEMENTS, CLAIMS, COMPUTER PROGRAMS, COMPUTER DISCS, COMPUTER
TAPES, LITERATURE, REPORTS, CATALOGS, DESIGN RIGHTS, INCOME TAX REFUNDS,
PAYMENTS OF INSURANCE AND RIGHTS TO PAYMENTS OF ANY KIND.
DESCRIPTION OF CHANGE IN TERMS. MATURITY DATE TO BE EXTENDED FROM MAY 10,
2001 TO AUGUST 10, 2001. ALL OTHER TERMS AND CONDITIONS TO REMAIN THE SAME.
PROMISE TO PAY. FAFCO, INC. ("BORROWER") PROMISES TO PAY TO BUTTE COMMUNITY
BANK ("LENDER"), OR ORDER, IN LAWFUL MONEY OF THE UNITED STATES OF AMERICA,
THE PRINCIPAL AMOUNT OF ONE MILLION & 00/100 DOLLARS ($1,000,000.00) OR SO
MUCH AS MAY BE OUTSTANDING, TOGETHER WITH INTEREST ON THE UNPAID
OUTSTANDING PRINCIPAL BALANCE OF EACH ADVANCE. INTEREST SHALL BE CALCULATED
FROM THE DATE OF EACH ADVANCE UNTIL REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN ON DEMAND. PAYMENT IN FULL IS DUE
IMMEDIATELY UPON LENDER'S DEMAND. IF NO DEMAND IS MADE, BORROWER WILL PAY
THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING PRINCIPAL PLUS ALL ACCRUED
UNPAID INTEREST ON AUGUST 10, 2001. IN ADDITION, BORROWER WILL PAY REGULAR
MONTHLY PAYMENTS OF ALL ACCRUED ON PAID INTEREST DUE AS OF EACH PAYMENT
DATE, BEGINNING JUNE 10, 2001, WITH ALL SUBSEQUENT INTEREST PAYMENTS TO BE
DUE ON THE SAME DAY OF EACH MONTH AFTER THAT. INTEREST ON THIS AGREEMENT IS
COMPUTED ON A 365/360 SIMPLE INTEREST BASIS; THAT IS, BY APPLYING THE RATIO
OF THE ANNUAL INTEREST RATE OVER A YEAR OF 360 DAYS, MULTIPLIED BY THE
OUTSTANDING PRINCIPAL BALANCE, MULTIPLIED BY THE ACTUAL NUMBER OF DAYS THE
PRINCIPAL BALANCE IS OUTSTANDING. Borrower will pay Lender at Lender's
address shown above or at such other place as Lender may designate in
writing.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to
change from time to time based on changes in an index which is Lender's
Prime Rate (the "Index"). This is the rate Lender charges, or would charge,
on 90-day unsecured loans to the most creditworthy corporate customers.
This rate may or may not be the lowest rate available from Lender at any
given time. Lender will tell Borrower the current index rate upon
Borrower's request. The interest rate change will not occur more often than
each DAY. Borrower understands that Lender may make loans based on other
rates as well. THE INDEX CURRENTLY IS 7.500% PER ANNUM. THE INTEREST RATE
TO BE APPLIED TO THE UNPAID PRINCIPAL BALANCE OF THE NOTE WILL BE AT A
RATE OF 1.500 PERCENTAGE POINTS OVER THE INDEX, RESULTING IN AN INITIAL
RATE OF 9.000% PER ANNUM. NOTICE: Under no circumstances will the interest
rate on the Note be more than the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. In any event, even upon full
prepayment of this Agreement, Borrower understands that Lender is entitled
to a MINIMUM INTEREST CHARGE OF $50.00. Other than Borrower's obligation
to pay any minimum interest charge, Borrower may pay without penalty all
or a portion of the amount owed earlier than it is due. Early payments
will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments of accrued unpaid
interest. Rather, early payments will reduce the principal balance due.
Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender's rights under this Agreement,
and Borrower will remain obligated to pay any further amount owed to
Lender. All written communications concerning disputed amounts, including
any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with
other conditions or limitations or as full satisfaction of a disputed
amount must be mailed or delivered to: Butte Community Bank, CHICO OFFICE,
2041 FOREST AVE, CHICO, CA 95928.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be
charged 5.000% OF THE REGULARLY SCHEDULED PAYMENT OR $5.00, WHICHEVER IS
GREATER.
INTEREST AFTER DEFAULT. Upon Borrower's failure to pay all amounts
declared due pursuant to this section, including failure to pay upon final
maturity, the total sum due under this Agreement will bear interest from
the date of acceleration or maturity at the variable interest rate on this
Agreement.
DEFAULT. Each of the following shall constitute an Event of Default under
this Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under
the Indebtedness.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement
or in any of the Related Documents or to comply with or to perform
any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any
material respect, either now or at the time made or furnished or
becomes false or misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as
a going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency
laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the
Indebtedness. This includes a garnishment of any of Borrower's
accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture proceeding
and deposits with Lender monies or a surety bond for the creditor or
forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.
EVENTS AFFECTING GUARANTOR.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent
(25%) or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
CURE PROVISIONS. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of
the same provision of this Agreement within the preceding twelve (12)
months, it may be cured (and no event of default will have occurred)
if Borrower, after receiving written notice from Lender demanding
cure of such default: (1) cures the default within fifteen (15) days;
or (2) if the cure requires more than fifteen (15) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be
sufficient to cure the default and thereafter continues and completes
all reasonable and necessary steps sufficient to produce compliance
as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance on this Agreement and all accrued unpaid interest
immediately due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Agreement if Borrower does not pay. Borrower will pay Lender
that amount. This includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses, whether or not there
is a lawsuit, including attorneys' fees, expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), and appeals. Borrower also will pay any court costs, in
addition to all other sums provided by law.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND ENFORCED
IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF CALIFORNIA.
THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF CALIFORNIA.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's
request to submit to the jurisdiction of the courts of BUTTE County, State
of
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CHANGE IN TERMS AGREEMENT PAGE 2
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California.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 if
Borrower makes a payment on Borrower's loan and the check or
preauthorized charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender
reserves a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts
Borrower holds jointly with someone else and all accounts Borrower may
open in the future. However, this does not include any IRA or Keough
accounts, or any trust accounts for which setoff would be prohibited by
law. Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on the indebtedness against any
and all such accounts.
LINE OF CREDIT. This Agreement evidences a revolving line of credit.
Advances under this Agreement may be requested orally by Borrower or as
provided in this paragraph. Lender may, but need not, require that all
oral requests be confirmed in writing. All communications, instructions,
or directions by telephone or otherwise to Lender are to be directed to
Lender's office shown above. The following persons currently are
authorized to request advances and authorize payments under the line of
credit until Lender receives from Borrower, at Lender's address shown
above, written notice of revocation of their authority: ALEX N. WATT,
EXECUTIVE VP/SECRETARY OF FAFCO, INC.; NANCY I. GARVIN, VICE PRESIDENT OF
FINANCE OF FAFCO, INC.; AND FREEMAN A. FORD, PRESIDENT OF FAFCO, INC.
Borrower agrees to be liable for sums either: (A) advanced in accordance
with the instruction of an authorized person or (B) credited to any of
Borrower's accounts with Lender. The unpaid principal balance owing on
this Agreement at any time may be evidenced by endorsements on this
Agreement or by Lender's internal records, including daily computer
print-outs. Lender will have no obligation to advance funds under this
Agreement if: (A) Borrower or any guarantor is in default under the terms
of this Agreement or any agreement that Borrower or any guarantor has with
Lender, including any agreement made in connection with the signing of
this Agreement; (B) Borrower or any guarantor ceases doing business or is
insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit,
modify or revoke such guarantor's guarantee of this Agreement or any other
loan with Lender; (D) Borrower has applied funds provided pursuant to this
Agreement for purposes other than those authorized by Lender; or (E)
Lender in good faith believes itself insecure.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the
terms of the original obligation or obligations, including all agreements
evidenced or securing the obligation(s), remain unchanged and in full
force and effect. Consent by Lender to This Agreement does not waive
Lender's right to strict performance of the obligation(s) as changed, nor
obligate Lender to make any future change in terms. Nothing in this
Agreement will constitute a satisfaction of the obligation(s). It is the
intention of Lender to retain as liable parties all makers and endorsers
of the original obligation(s), including accommodation parties, unless a
party is expressly released by Lender in writing. Any maker or endorser,
including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign
this Agreement below, then all persons signing below acknowledge that this
Agreement is given conditionally, based on the representation to Lender
that the non-signing party consents to the changes and provisions of this
Agreement or otherwise will not be released by it. This waiver applies not
only to any initial extension, modification or release, but also to all
such subsequent actions.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Borrower's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors and
assigns. If ownership of the Collateral becomes vested in a person other
than Borrower, Lender, without notice to Borrower, may deal with
Borrower's successors with reference to this Agreement and the
Indebtedness by way of forbearance or extension without releasing Borrower
from the obligations of this Agreement or liability under the Indebtedness.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING
AGENCIES. Please notify us if we report any inaccurate information about
your account(s) to a consumer reporting agency. Your written notice
describing the specific inaccuracy(ies) should be sent to us at the
following address: Butte Community Bank 672 Person Rd Paradise, CA 95969
MISCELLANEOUS PROVISIONS. This Agreement is payable on demand. The
inclusion of specific default provisions or rights of Lender shall not
preclude Lender's right to declare payment of this Agreement on its
demand. Lender may delay or forgo enforcing any of its rights or remedies
under this Agreement without losing them. Borrower and any other person
who signs, guarantees or endorses this Agreement, to the extent allowed by
law, waive any applicable statute of limitations, presentment, demand for
payment, and notice of dishonor. Upon any change in the terms of this
Agreement, and unless otherwise expressly stated in writing, no party who
signs this Agreement, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. All such parties agree that
Lender may renew or extend (repeatedly and for any length of time) this
loan or release any party or guarantor or collateral; or impair, fail to
realize upon or perfect Lender's security interest in the collateral; and
take any other action deemed necessary by Lender without the consent of
or notice to anyone. All such parties also agree that Lender may modify
this loan without the consent of or notice to anyone other than the party
with whom the modification is made. The obligations under this Agreement
are joint and several.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE
PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT.
CIT SIGNERS:
X_____________________________________
NANCY I. GARVIN
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