Revolving Credit Line Agreement - Bank of Hawaii and BriteSmile Inc.
REVOLVING CREDIT LINE AGREEMENT
Intending to be legally bound by this Revolving Credit Line Agreement
("Agreement"), dated ____________, 2000, BANK OF HAWAII, a Hawaii corporation,
whose mailing address is 130 Merchant Street, Honolulu Hawaii 96813 (the "Bank")
and BRITESMILE, INC., a Utah corporation, whose mailing address is 490 North
Wiget Lane, Walnut Creek, California 94598 (the "Borrower") agree as follows:
I. Revolving Credit
1.1 In General. Subject to the terms of this Agreement, the Bank hereby
establishes a credit facility in favor of the Borrower (the "Credit
Facility") under which the Bank will extend credit to the Borrower from
time to time until _______________, 2001 (the "Credit Termination
Date"), by way of Loans pursuant to Section 1.2 hereof. Each extension
of credit shall be in such amount as the Borrower may request, but the
aggregate principal amount of all extensions of credit at any one time
outstanding shall not exceed $2,000,000.00 (the "Commitment"). The
Borrower may obtain credit, repay without penalty and obtain further
credit as provided for under this Agreement, from the date hereof until
the Credit Termination Date, in either the full amount of the
Commitment or any lesser sum.
1.2 Drawings. The Borrower may draw on the Commitment in the following
manner(s): By obtaining a cash advance (each such cash advance herein
referred to as a "Loan").
1.3 Purpose. The proceeds of the Loans and other extensions of credit under
the Credit Facility shall be used exclusively for working capital,
capital expenditures and general corporate purposes.
1.4 Security. The Credit Facility and Loans and other extensions of credit
shall be secured by the Letter of Credit.
1.5 Requests for Loans or Credit. In respect of each Loan and each other
extension of credit, the Borrower shall give to the Bank at least one
Business Day's telephonic notice of the Borrower's request therefor (in
each case confirmed prior to disbursement of the Loan or other
extension of credit by a written "Notice of Borrowing" in the form of
Exhibit A attached hereto). Unless otherwise directed in writing by the
Borrower, all proceeds of Loans shall be credited to the Borrower's
Deposit Account No. ______________, maintained with the Bank.
1.6 Interest; Repayment of Loans and Credit.
(a) Interest Rate. Borrower agrees to pay interest on the
outstanding principal balance of each Loan at a floating rate
1.0 percentage point above the Base Rate in effect from time
to time.
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"Base Rate" means the primary index rate established from time
to time by the Bank in the ordinary course of its business and
with due consideration of the money market, and published by
intrabank memoranda for the guidance of its loan officers in
pricing all of its loans which float with the Base Rate.
Any floating rate of interest will increase or decrease during
the term of this Agreement if there is an increase or decrease
in the rate to which the floating rate is tied. If the rate to
which the floating rate is tied is no longer available, the
Bank will choose a new rate that is based on comparable
information.
Interest shall be computed on the basis of the actual number
of days elapsed between payments and on the basis of a 365-day
year (or, in leap years, on the basis of a 366-day year).
In no event shall the Borrower be obligated to pay any amount
under this Agreement that exceeds the maximum amount allowable
by law. If any sum is collected in excess of the applicable
maximum amount allowable by law, the excess collected shall,
at the Bank's discretion, be applied to reduce the principal
balance of the Loans or returned to the Borrower.
(b) Repayment of Loans.
(1) Payment Schedule.
The Borrower agrees to make monthly payments to the
Bank of all accrued interest on the outstanding
principal balance of each Loan on the first day of
each month during the term of this Agreement.
The Borrower agrees to pay in full on or before the
Credit Termination Date all principal and accrued
interest then outstanding under the Credit Facility,
not required to have been previously paid.
(2) Currency, Place and Dates of Payments. Payments shall
be made in United States money at the Bank's address
stated above, or at such other place as the Bank
shall have designated by written notice to the
Borrower. Any payment due on a day that is not a
Business Day shall be made on the next succeeding
Business Day and the extension of time shall be
included in the computation of interest.
"Business Day" means any day on which the Bank is
open to the public for carrying on substantially all
of its banking functions.
(3) Evidence of Making and Repayment of Loans. The Bank's
records evidencing the date of disbursement and
principal amount of each Loan and the amounts of all
repayments of principal and payments of interest on
each Loan shall constitute prima facie
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evidence of the making and repayment of such Loans
and of the payment of such interest. However, the
Bank's making of erroneous notations in its records
shall not affect the Borrower's obligation to repay
the outstanding balance of principal under a Loan,
and accrued interest thereon, as provided in this
Agreement.
(4) Late Charges. If any payment under this Agreement is
not made when due, the Borrower will pay to the Bank
a late charge in respect of that payment, in the
amount of 7.5% of the overdue payment.
(5) Application of Payments. Payments under this
Agreement may be applied by the Bank to the
indebtedness evidenced by this Agreement in any
manner the Bank deems appropriate. The priority of
application elected by the Bank on any one occasion
shall not determine any such election in the future.
1.7 Fees. In respect to the Credit Facility, the Borrower shall pay on
demand to the Bank the following non-refundable fee: $5,000.00.
1.8 Evidence of Indebtedness; Loan Documents. The Credit Facility is or is
to be evidenced and/or secured by this Agreement, a Master Note in the
form attached as Exhibit B, the Letter of Credit and all such other
documents as the Bank may require from time to time to effectuate the
intent of this Agreement, together with all renewals, extensions and
modifications thereto (collectively the "Loan Documents").
1.9 Borrower's Obligations. The Borrower's obligations to pay, observe and
perform all indebtedness, liabilities, covenants and other obligations
on the part of the Borrower to be paid, observed and performed under
this Agreement and the remainder of the Loan Documents are herein
collectively called the "Obligations".
II. Conditions of Lending
2.1 First Loan or Other Extension of Credit. The obligation of the Bank to
make the first Loan or other extension of credit under this Agreement
is subject to the satisfaction of all of the following conditions on or
before the date on which the Bank shall grant such Loan or other
extension of credit (the "Closing Date"):
(a) Documents Required for Closing. The Bank shall have received,
in each case in form and substance satisfactory to the Bank,
such fully executed originals or certified copies as the Bank
may have requested of each of the following, in each case as
amended through the Closing Date:
(1) Loan Documents. All of the Loan Documents.
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(2) Consents. Evidence that all parties to the Loan
Documents (except the Bank) have obtained all
necessary and appropriate authority, approvals and
consents to execute and deliver the Loan Documents.
(3) Organizational Documents. If any party to the Loan
Documents (except the Bank) is a corporation,
partnership, trust, association or other recognized
legal entity other than a natural person (a "Legal
Entity"), all instruments pursuant to which such
Legal Entity was organized and by which its internal
affairs are governed and, if requested by the Bank, a
Certificate of Good Standing, evidencing such Legal
Entity's good standing and authority to conduct its
business in the jurisdiction(s) in which it conducts
its business.
(4) Evidence of Priority. Evidence acceptable to the Bank
that the Bank's liens on and/or security interests in
the Collateral have the priority required by the
Bank.
(5) Title Insurance, Leasehold Instruments, etc. If the
security for the Credit Facility includes a real
estate mortgage lien, (i) an ALTA Form Lender's Title
Insurance Policy in an amount required by the Bank,
assuring to the Bank the validity and agreed-upon
priority of its mortgage lien, and containing such
endorsements as the Bank may require, and (ii) if
said mortgage lien encumbers a leasehold estate, the
applicable Lease, a lessor's consent to the mortgage,
and a lessor's estoppel certification evidencing that
the Lease is in full force and effect and free of
default, and (iii) an Agreement Regarding Hazardous
Materials, in the form customarily required by the
Bank upon the closing of commercial mortgage loans.
(6) Opinion(s) of Counsel. An opinion or opinions of
counsel for the Borrower and any Guarantor, addressed
to the Bank, covering to the Bank's satisfaction (i)
the due authorization, execution, delivery, binding
effect, and enforceability of the Loan Documents,
(ii) no undisclosed litigation, (iii) no consents or
approvals required, (iv) no conflicts with any
agreement or laws, and (v) such other matters as the
Bank may require.
(7) Insurance. Evidence of the Borrower's compliance with
the provisions stated below in Section 4.6.
(b) Certain Other Events. On the Closing Date:
(1) The Borrower shall have paid to the Bank all fees and
other charges required to have been paid in
accordance with the terms of the Loan Documents,
including, without limitation, any fees described in
Section 1.7 above.
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(2) The representations and warranties contained in
Article III shall be true.
(3) No event shall have occurred and be continuing that
(i) constitutes an Event of Default, or (ii) with the
giving of notice or passage of time, or both, would
constitute an Event of Default.
(4) No material adverse change shall have occurred in the
financial condition of the Borrower or any Guarantor
since the date of the most recent of the Borrower's
and Guarantor's financial statements submitted to the
Bank.
(5) No material adverse change shall have occurred in the
physical condition of the Borrower's assets since the
date of this Agreement.
(6) All legal matters incidental to the Closing shall be
satisfactory to legal counsel for the Bank.
2.2 Subsequent Loans or Extensions of Credit. The obligation of the Bank to
make the second or any subsequent Loan or other extension of credit is
subject to (i) the prior satisfaction of all conditions stated above in
Section 2.1, (ii) the satisfaction as of the date of such subsequent
Loan or other extension of credit of the conditions stated above in
Sections 2.1(b)(2) through 2.1(b)(6) of this Agreement, and (iii) the
delivery to the Bank of such additional Loan Documents as may have been
reasonably requested by the Bank in respect to such subsequent Loan or
other extension of credit.
III. Representations and Warranties
To induce the Bank to make the Commitment available to the Borrower, the
Borrower makes the following representations and warranties to the Bank, which
representations and warranties shall survive the execution of this Agreement and
continue so long as the Borrower is indebted to the Bank under the Loan
Documents, and until payment in full of the Credit Facility:
3.1 Organization. The Borrower, if it is a Legal Entity, as well as each
Legal Entity comprising the Borrower, is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and has the lawful power to own its properties and to
engage in the business it conducts.
3.2 No Breach. The execution and performance of the Loan Documents will not
immediately, or with the passage of time or the giving of notice, or
both:
(1) Violate any law or result in a default under any
contract, agreement, or instrument to which the
Borrower is a party or by which the Borrower or its
property is bound; or
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(2) Result in the creation or imposition of any security
interest in, or lien or encumbrance on, any of the
assets of the Borrower, except in favor of the Bank.
3.3 Authorization. The Borrower has the power and authority to incur and
perform the Obligations, and, if the Borrower is a Legal Entity, the
Borrower has taken all corporate, partnership, or other action
necessary to authorize the execution and delivery of the Loan Documents
and its incurring of the Obligations.
3.4 Validity. This Agreement is, and the remainder of the Loan Documents
when delivered will be, legal, valid, binding, and enforceable in
accordance with their respective terms.
3.5 Financial Statements. All financial statements heretofore given by the
Borrower to the Bank, including any schedules and notes pertaining
thereto, were prepared in accordance with generally accepted accounting
principles, consistently applied, ("GAAP") and fully and fairly present
the financial condition of the Borrower at the dates thereof and the
results of operations for the periods covered thereby, and as of the
date of this Agreement there have been no material adverse changes in
the financial condition or business of the Borrower from the date of
the most recent financial statements given to the Bank.
3.6 Taxes. Except as otherwise permitted by this Agreement, the Borrower
has filed all tax returns it was required by law to have filed prior to
the date of this Agreement, has paid or caused to be paid all taxes,
assessments, and other governmental charges that were due and payable
prior to the date of this Agreement, and has made adequate provision
for the payment of such taxes, assessments, or other charges accruing
but not yet payable, and the Borrower has no knowledge of any
deficiency or additional assessment in a materially important amount in
connection with any taxes, assessments, or charges not provided for on
its books.
3.7 Compliance With Law. Except to the extent that the failure to comply
would not materially interfere with the conduct of the business of the
Borrower, the Borrower has complied with all applicable laws in respect
of: (1) restrictions, specifications, or other requirements pertaining
to products that the Borrower sells or to the services it performs; (2)
the conduct of its business; and (3) the use, maintenance, and
operation of its properties.
3.8 Statements and Omissions. No representation or warranty by the Borrower
contained in this Agreement or in any certificate or other document
furnished by the Borrower pursuant to this Agreement contains any
untrue statement of material fact or omits to state a material fact
necessary to make such representation or warranty not misleading in
light of the circumstances under which it was made.
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3.9 No Pending Actions. There is no pending or threatened litigation
affecting the Borrower or any Collateral that may have a material
adverse effect on the business of the Borrower or the Collateral.
IV. Affirmative Covenants
For so long as the Commitment or any of the Obligations remains outstanding, the
Borrower will, unless otherwise permitted by the Bank in writing:
4.1 Payments. Punctually pay when due all sums which may be due under the
Loan Documents.
4.2 Accounting Records. Maintain accurate and proper accounting records and
books in accordance with GAAP, and provide the Bank with access to such
books and accounting records at the Bank's request during the Bank's
normal business hours.
4.3 Financial Reporting. Furnish the Bank with financial reports, certified
as true and correct by the Borrower's chief financial officer, in
reasonable detail and form approved by the Bank, as follows:
(a) Not later than 90 days after and as of the end of each fiscal
year a financial statement of the Borrower, audited by a firm
of independent certified public accountants acceptable to the
Bank, which financial statements shall include a balance sheet
and statements of income and cash flow, all prepared in
accordance with GAAP;
(b) Not later than 45 days after and as of the end of each fiscal
quarter Borrower's Form 10-Q pursuant to Sections 13 or 15(d)
of the Securities Exchange Act of 1934;
(c) From time to time such other information as the Bank may
reasonably request.
4.4 Existence. If the Borrower is a Legal Entity, preserve and maintain the
Borrower's legal existence and timely file all necessary and
appropriate documents and exhibits and pay all appropriate fees and
charges in connection therewith.
4.5 Observance of Laws. Conduct the Borrower's business activities in an
orderly, efficient and regular manner and comply with all requirements
of all applicable state, federal and local laws, rules and regulations.
4.6 Insurance. Maintain and keep in force insurance of the types and in
such amounts as are satisfactory to the Bank, and in no event less than
amounts customarily carried in lines of business similar to the
Borrower's, including but not limited to, property and casualty,
commercial general liability and workers' compensation insurance, and
provide the Bank with a schedule or schedules or
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certificates of insurance from time to time setting forth all insurance
then in effect along with copies of all such policies.
If real or personal properties are given to secure the Obligations or
any guaranty given in support of the Obligations, such properties shall
be covered by property and casualty insurance acceptable to the Bank,
and such policies shall contain a mortgagee's clause and/or lender's
loss payable endorsements and shall require 30 days' prior written
notice to the Bank of any cancellation or material change in coverage.
4.7 Facilities. Keep all of the Borrower's property and business premises
in a good state of repair and condition, make all necessary repairs,
renewals and replacements thereto from time to time so that such
property and business premises shall be fully and efficiently preserved
and maintained, keep such property and business premises free and clear
of all liens, charges or encumbrances except those consented to by the
Bank in writing and permit the Bank's authorized representatives to
make reasonable inspections of the Borrower's property and business
premises.
4.8 Taxes and Other Liabilities. Pay and discharge when due all of the
Borrower's indebtedness, obligations, assessments and taxes, except
such as the Borrower may in good faith contest or as to which a bona
fide dispute may exist, provided that the Borrower has provided
evidence satisfactory to the Bank regarding the Borrower's ability to
pay the disputed items in the event they are determined to be justly
due.
4.9 Notice to the Bank. Promptly give notice to the Bank of (a) the
occurrence of any Event of Default, (b) any change in the name or
organizational structure of the Borrower, (c) any uninsured loss
through fire, theft, liability or property damage exceeding $50,000.00,
(d) any pending or threatened litigation affecting the Borrower or any
Collateral involving an amount exceeding $50,000.00, (e) any event
which could have a material adverse effect on the ability of the
Borrower to continue its business operations in the ordinary course,
(f) any change in the Borrower's principal place of business, and (g)
any change in the location of any Collateral.
4.10 Hazardous Materials. Abide at all times by all applicable hazardous
material laws, rules and regulations and immediately notify the Bank of
any claim or threatened claim affecting any property owned, leased or
occupied by the Borrower.
V. Negative Covenants
For so long as the Commitment or any of the Obligations remains outstanding, the
Borrower will not, without the prior written consent of the Bank:
5.1 Use of Funds. Use any of the proceeds of the Commitment for any purpose
except as set forth in Section 1.3 of this Agreement.
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5.2 Merger, Consolidation, Sale of Stock or Assets. Merge into or
consolidate with any Legal Entity, acquire or establish any operating
subsidiaries or acquire all or substantially all of the capital stock
or assets of any other legal entity, or (unless the Borrower is a
publicly-held Legal Entity) sell, or permit to be sold, assigned,
pledged or transferred, any interest in the Borrower or legal entities
comprising the Borrower or any of its operating subsidiaries; or sell,
assign, transfer, pledge, mortgage, or otherwise dispose of all or
substantially all of the major assets of the Borrower, except in the
ordinary course of its business.
5.3 Business. Materially change the character of the Borrower's current
business, or engage in any type of business other than the Borrower's
current business.
VI. The Bank's Rights Upon Default
6.1 Events of Default. Each of the following events is an "Event of
Default" under this Agreement:
(a) The Borrower's failure to pay when due any sum payable to the
Bank under the Loan Documents or under any other agreement or
note between the Bank and the Borrower, whether now existing
or hereafter executed;
(b) The Borrower's failure to perform or observe any other
obligation of the Borrower to the Bank (including, without
limitation, all obligations undertaken in any of the Loan
Documents);
(c) The dissolution or insolvency of the Borrower;
(d) The commencement of any proceeding or the taking of any act by
or against the Borrower for any relief under bankruptcy,
insolvency or similar laws for the protection of debtors, or
for the appointment of a receiver of the business or assets of
the Borrower or the Borrower's inability (or admission of
inability) to pay his, her, or its debts as they become due;
(e) Any governmental authority having jurisdiction over the
revokes any authorization or permit materially affecting the
Borrower's ability to do business;
(f) The Borrower defaults in the payment of any material debt owed
by the Borrower to any person or entity other than the Bank,
if such defaults permits the acceleration of such debt;
(g) Any representation, warranty, or other information made or
furnished by the Borrower in respect of the Credit Facility is
or shall be untrue or materially misleading;
(h) The Bank reasonably believes there has been a material
impairment of or decrease in either the Borrower's ability to
pay or perform the Obligations
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or the value of the Collateral or any guaranty given to secure
payment of the Obligations;
(i) A final judgment (which alone or with other outstanding final
judgments) is rendered against the Borrower in an aggregate
amount of $100,000 or more, and each such judgment is not
discharged or stayed pending appeal within 30 days after entry
of such judgment or is not discharged within 30 days after the
expiration of any such stay;
(j) Any third party obtains a court order enjoining or prohibiting
the Borrower or the Bank from performing any of its respective
obligations under the Loan Documents and such order is not
discharged within 60 days after its issuance; or
(k) The Borrower fails to pay when due any amount relating to any
plan governed by the Employee Retirement Income Security Act
of 1974, as amended.
6.2 The Bank's Rights. If an Event of Default shall occur and be continuing
the Bank shall have, in addition to any and all other rights and
remedies, legal or equitable, available to the Bank under any and all
of the Loan Documents or at law, the following additional rights and
remedies:
(a) The absolute right to deny to the Borrower any further Loan or
extension of credit (the Bank's obligation to extend any
further credit to the Borrower shall immediately terminate);
(b) The right, at the option of the Bank, to declare, without
notice, the entire principal amount and accrued interest for
any Loan or extension of credit outstanding under this
Agreement, plus any fees and charges reasonably incurred by
the Bank under any of the Loan Documents, immediately due and
payable;
(c) The right, at the option of the Bank, to charge interest on
any principal amount outstanding under this Agreement at the
rate of 18% per year or three percentage points above the
otherwise applicable interest rate, whichever is greater;
(d) The right to the ex parte appointment without bond of a
receiver, without regard to the value of any Collateral or
solvency of any party liable for payment, observance or
performance of the Obligations and regardless of whether the
Bank has any adequate remedy at law; and
(e) The right to draw on the Letter of Credit.
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VII. Miscellaneous
7.1 Further Assurance. From time to time within five Business Days after
the Bank's demand, the Borrower will execute and deliver such
additional documents and provide such additional information as may be
reasonably requested by the Bank to carry out the intent of this
Agreement.
7.2 Enforcement and Waiver by the Bank. The Bank shall have the right at
all times to enforce the provisions of the Loan Documents, as they may
be amended from time to time, in strict accordance with their terms,
notwithstanding any conduct or custom on the part of the Bank in
refraining from so doing at any time or times. The failure of the Bank
at any time or times to enforce its rights under such provisions,
strictly in accordance with the same, shall not be construed as having
created a custom in any way or manner contrary to specific provisions
of the Loan Documents or as having in any way or manner modified or
waived the same. All rights and remedies of the Bank are cumulative and
concurrent and the exercise of one right or remedy shall not be deemed
a waiver or release of any other right or remedy.
7.3 Expenses of the Bank. The Borrower will, on demand, reimburse to the
Bank all reasonable expenses, including reasonable attorneys' fees
(including allocated costs of the Bank's in-house counsel), incurred by
the Bank in connection with the administration, amendment,
modification, workout, or enforcement of the Loan Documents and the
collection or attempted collection of the indebtedness evidenced by the
Loan Documents, whether or not legal proceedings are commenced.
7.4 Notices. Any notices or consents required or permitted by this
Agreement or the remainder of the Loan Documents shall be in writing
and shall be deemed delivered if delivered in person or if sent by
certified mail, postage prepaid, return receipt requested, or by FAX,
at the addresses or FAX numbers noted below, unless such address or FAX
number is changed by written notice hereunder:
BORROWER BANK
Mr. Paul Boyer, Chief Financial Mr. Scott Nahme, Vice President
Officer Bank of Hawaii
BRITESMILE, INC. Corporate Banking Division
490 North Wiget Lane 130 Merchant Street, 20th Floor
Walnut Creek, California 94598 Honolulu, Hawaii 96813
PHONE: (925) 941-6260 PHONE: (808) 538-4238
FAX: (925) 941-6266 FAX: (808) 537-8301
7.5 Waiver and Release by the Borrower. To the maximum extent permitted by
applicable law, the Borrower (and each of them, if more than one):
(a) Waives notice and opportunity to be heard, after acceleration
of the indebtedness evidenced by the Loan Documents, before
exercise by the
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Bank of the remedy of setoff or of any other remedy or
procedure permitted by any applicable law or by any prior
agreement with the Borrower, and, except where specifically
required by this Agreement or by any applicable law, notice of
any other action taken by the Bank;
(b) Waives presentment, demand for payment, notice of dishonor,
and any and all other notices or demands in connection with
the delivery, acceptance, performance, or enforcement of this
Agreement, and consents to any extension of time (and even
multiple extensions of time for longer than the original
term), renewals, releases of any person or organization liable
for the payment of the Obligations under this Agreement, and
waivers or modifications or other indulgences that may be
granted or consented to by the Bank in respect of the Loans
and other extensions of credit evidenced by this Agreement;
and
(c) Releases the Bank and its officers, agents, and employees from
all claims for loss or damage caused by any act or omission on
the part of any of them except willful misconduct.
7.6 Sales and Participations. The Borrower consents to the Bank's
negotiation, offer, and sale to third parties ("Participants") of the
Credit Facility or participating interests in the Credit Facility, to
any and all discussions and agreements heretofore or hereafter made
between the Bank and any Participant or prospective Participant
regarding the interest rate, fees, and other terms and provisions
applicable to the Credit Facility, and to the Bank's disclosure to any
Participant or prospective Participant, from time to time, of such
financial and other information pertaining to the Borrower and the
Credit Facility as the Bank and such Participant or prospective
Participant may deem appropriate (whether public or non-public,
confidential or non-confidential, and including information relating to
any insurance required to be carried by the Borrower and any financial
or other information bearing on the Borrower's creditworthiness and the
value of any Collateral). The Borrower acknowledges that the Bank's
disclosure of such information to any Participant or prospective
Participant constitutes an ordinary and necessary part of the process
of effectuating and servicing the Credit Facility.
7.7 Applicable Law. The substantive laws of the State of Hawaii shall
govern the construction of this Agreement and the rights and remedies
of the parties hereto.
7.8 Binding Effect. This Agreement shall inure to the benefit of the
parties hereto and their respective heirs, personal representatives,
successors and permitted assigns, and shall be binding on the parties
hereto and their respective heirs, personal representatives, successors
and assigns.
7.9 Merger. This Agreement and the remainder of the Loan Documents
constitute the full and complete agreement between the Bank and the
Borrower with respect to the Credit Facility, and all prior oral and
written agreements,
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commitments, and undertakings shall be deemed to have been merged into
the Loan Documents and such prior oral and written agreements,
commitments, and undertakings shall have no further force or effect
except to the extent expressly incorporated in the Loan Documents.
7.10 Amendments; Consents. No amendment, modification, supplement,
termination, or waiver of any provision of this Agreement or the other
Loan Documents, and no consent to any departure by the Borrower
therefrom, may in any event be effective unless in writing signed by
the Bank, and then only in the specific instance and for the specific
purpose given.
7.11 Assignments.
(a) The Borrower shall have no right to assign any of its rights
or obligations under the Loan Documents without the prior
written consent of the Bank.
(b) The Bank may sell participations in the Credit Facility, as
contemplated by Section 7.6 above, and the Bank may assign the
Loan Documents (or the receivables evidenced thereby) to a
Federal Reserve Bank or to any other agency or instrumentality
of the United States of America to support borrowings of
Federal Funds.
7.12 Severability. If any provision of any of the Loan Documents shall be
held invalid under any applicable law, such invalidity shall not affect
any other provision of the Loan Documents that can be given effect
without the invalid provision, and, to this end, the provisions of the
Loan Documents are severable.
7.13 The Bank's Right of Setoff; Security Interest in Accounts. At any time,
the Bank may set off obligations owed by the Bank to the Borrower (such
as balances in checking and savings accounts) against the Obligations,
whether or not an Event of Default shall have occurred or shall have
been declared, and without first resorting to other Collateral. To
secure the Obligations, the Borrower grants to the Bank a security
interest in all checking, savings, and other deposit accounts now or
hereafter maintained by the Borrower with the Bank.
7.14 Time is of the Essence. Time is of the essence under and in respect of
this Agreement.
7.15 Joint and Several Liability. If more than one Borrower has signed this
Agreement, all Borrowers shall be liable under this Agreement jointly,
and each of them severally, for the payment, observance, and
performance of all of the Obligations.
7.16 Headings. The headings of the various provisions of this Agreement are
inserted for convenience of reference only and shall not affect the
meaning or construction of any provision.
13
<PAGE>
7.17 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original instrument and all of which shall together
constitute one and the same agreement.
7.18 Dispute Resolution. Any controversy or claim arising out of or relating
to this Agreement or any of the other Loan Documents shall, at the
request of either party, be decided by binding arbitration conducted in
the State of Hawaii without a judge or jury, under the auspices of the
American Arbitration Association or Dispute Prevention and Resolution,
Inc. in accordance with Chapter 658 of the Hawaii Revised Statutes and
the respective and applicable rules of the aforementioned
organizations. The arbitrator will apply any applicable statute of
limitations and will determine any controversy concerning whether an
issue is arbitrable. Judgment upon the arbitration award may be entered
in any court having jurisdiction. The prevailing party will be entitled
to recover its reasonable attorneys' fees and costs as determined by
the arbitrator. This agreement to arbitrate shall not limit or restrict
the right, if any, of any party to exercise before, during or following
any arbitration proceeding, with respect to any claim or controversy,
self-help remedies such as setoff, to foreclose a mortgage or lien or
other security interest in any Collateral judicially or by power of
sale, or to obtain provisional or ancillary remedies such as injunctive
relief from a court having jurisdiction. Either party may seek those
remedies without waiving its right to submit the controversy or claim
in question to arbitration.
VIII. Definitions
8.1 Base Rate shall have the meaning given in Section 1.6.
8.2 Business Day shall have the meaning given in Section 1.6(b)(2).
8.3 Closing Date shall have the meaning given in Section 2.1.
8.4 Commitment shall have the meaning given in Section 1.1.
8.5 Credit Facility shall have the meaning given in Section 1.1.
8.6 Credit Termination Date shall have the meaning given in Section 1.1.
8.7 Event of Default shall have the meaning given in Section 6.1.
8.8 GAAP shall have the meaning given in Section 3.5.
8.9 Legal Entity shall have the meaning given in Section 2.1(a)(3).
8.10 Letter of Credit shall mean an irrevocable standby letter of credit, in
form and substance acceptable to the Bank, in the amount of
$2,000,000.00 issued by the Bank of Nova Scotia or financial
institution acceptable to the Bank at its discretion. Such letter of
credit shall have an expiry date no earlier than thirty (3) business
days following the Credit Termination Date.
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8.11 Loan shall have the meaning given in Section 1.2.
8.12 Loan Documents shall have the meaning given in Section 1.8.
8.13 Notice of Borrowing shall have the meaning given in Section 1.5.
8.14 Obligations shall have the meaning given in Section 1.9.
8.15 Participant shall have the meaning given in Section 7.6.
IN WITNESS WHEREOF, the Borrower and the Bank have duly executed this Agreement.
BRITESMILE, INC. BANK OF HAWAII
By By
------------------------------ ------------------------------
Its Its
Bank
By
------------------------------
Its
Borrower
A&W/DSK:5/17/00
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EXHIBIT A
Notice of Borrowing
DATE: , 2000
---------------------------
TO: Bank of Hawaii
Attn: Mr. Scott Nahme, Vice President
130 Merchant Street, 20th Floor
Honolulu, Hawaii 96813
Telecopier No.: (808) 537-8301
SUBJECT: Revolving Credit Line Agreement (the "Agreement") dated
______________, 2000, between BANK OF HAWAII (the "Bank")
and BRITESMILE, INC. (the "Borrower").
Pursuant to Section 1.5 of the Agreement, the Borrower hereby requests a draw
under the Credit Facility and confirms the following instructions therefor
(capitalized terms not defined herein shall have the respective meanings
assigned in the Agreement):
FORM OF DRAWING
_ LOAN
.............................. .................................
Requested Date:
.............................. .................................
Principal Amount:
.............................. .................................
METHOD OF DRAWING
_ Credit to Borrower's Deposit Account No. ____________ maintained with
the Bank.
_ Wire funds to:
ABA #:
Credit Account Number:
Special Instructions:
Borrower hereby certifies as follows:
1. The representations and warranties set forth in Article III of
the Agreement are true and correct on and as of the date
hereto, provided that the representations and warranties set
forth in the first sentence of Section 3.5 of the Agreement
shall be deemed to be made with respect to the financial
statements most recently delivered to the Bank pursuant to the
Agreement.
2. As of the date hereof, no event has occurred and is continuing
that (a) constitutes an Event of Default under the Agreement,
or (b) with the giving of notice or passage of time, or both,
would constitute an Event of Default. The Borrower has
observed and performed all of the Borrower's covenants and
other agreements, and satisfied every condition, contained in
the Agreement and in the other Loan Documents, to be observed,
performed or satisfied by the Borrower.
BRITESMILE, INC.
By:___________________________________
Authorized Signatory
Borrower
<PAGE>
Exhibit B
Master Note
$2,000,000.00 Honolulu, Hawaii
________________, 2000
The undersigned ("Borrower") promises to pay to the order of BANK OF
HAWAII ("Bank") the principal amount of $2,000,000.00 or so much thereof as
shall have been disbursed by the Bank and may remain outstanding, together with
interest on outstanding balances of principal in accordance with and under the
terms of that certain Revolving Credit Line Agreement of even date, between Bank
and Borrower, relating to the Credit Facility therein described.
BRITESMILE, INC.
By
-------------------------------
Its
By
-------------------------------
Its
Borrower
<PAGE>
Master Note
$2,000,000.00 Honolulu, Hawaii
_________________________, 2000
The undersigned ("Borrower") promises to pay to the order of BANK OF
HAWAII ("Bank") the principal amount of $2,000,000.00 or so much thereof as
shall have been disbursed by Bank and may remain outstanding, together with
interest on outstanding balances of principal in accordance with and under the
terms of that certain Revolving Credit Line Agreement of even date, between Bank
and Borrower, relating to the Credit Facility therein described.
BRITESMILE, INC.
By
-------------------------------
Its
By
-------------------------------
Its
Borrower
A&W/DSK:5/17/00