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Brian Miles/Bar #191136
Attorney for The National Collection Agency Inc
2 2255 Morello Ave Suite 240
Pleasant Hill, CA 94523
ELECTRONICALLY
3 P 925-938-4500 F I L E D
F 925-938-7007 Superior Court of California,
County of San Francisco
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO 03/03/2020
5 Clerk of the Court
BY: NADITA MASON
UNLIMITED CIVIL JURISDICTION Deputy Clerk
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THE NATIONAL COLLECTION AGENCY, INC. Case No.: CGC-19-580128
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Plaintiff,
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vs. DECLARATION IN SUPPORT OF JUDGMENT
9 [CCP SECTION 585(D)]
RICHARD E. WASHINGTON, ET AL.
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Defendant
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12 I, the undersigned declare as follows:
13 1. That I am the Chief Financial Officer of Main Street Launch, Inc. hereinafter referred to as Main. As
14 Chief Financial Officer of Main, I have care, custody and control of the business records as they relate to this matter
15 and am familiar with the contents thereof. The business records are made in the regular course of business and are
16 made at or about the time of the act, condition or event which they record. Prior to executing this declaration, I
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personally reviewed all the relevant documents and am authorized by plaintiff's assignor Main, to make this
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declaration and if sworn as a witness in this action I could and would be competent to testify thereto, and would
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testify ofmy own personal knowledge as follows:
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2. Plaintiff, The National Collection Agency, Inc., is the assignee of Main with respect to monies due from
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defendant in the sum of$84,642.58.
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3. Defendant executed the Term Loan Promissory Note dated February 21, 2018, a true and correct copy of
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which is attached hereto and marked Exhibit "A" and agreed to the terms and conditions set forth in the Term Loan
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Promissory Note.
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4. Defendant executed the Loan Agreement dated February 21, 2018, a true and correct copy of which is
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attached hereto and marked Exhibit "B" and agreed to the terms and conditions set forth in the Loan Agreement.
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DECLARATION IN SUPPORT OF JUDGMENT [CCP SECTION 585(D)]
[CCP SECTION 585(D)]
5. Defendant executed the Unconditional and Continuing Guarnnty dated Febrnary 21, 2018, a h·ue and
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correct copy of which is attached hereto and marked Exhibit "C" and agreed to the terms !111d conditions set forth in
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the Unconditional and Continuing Guarantee.
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6. Defendant defaulted in the payment of the amount due under said Tenn Loan Promissory Note mat·ked
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Exhibit "A". Attached hernto and marked Exhibit "G" is the itemized statement reflecting a principal balance due of
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$47,086.93.
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8 7. Defendant executed the Term Loan Promissory Note dated August 23, 2016, a true and correct copy of
9 which is attached hereto and marked Exhibit "D" and agreed to the terms and conditions set forth in the Term Loan
10 Promissory Note.
11 8. Defendant executed the Loan Agreement dated August 23, 2016, a true and conect copy of which is
12 attached hereto and marked Exhibit "E" and agreed to the terms nnd conditions set forth in the Loan Agreement.
13 9. Defendant executed the Unconditional and Continuing Guaranty dated August 23, 2016, a trne and
14 correct copy of which is attached hereto and marked Exhibit "F" and agreed to the terms and conditions set forth in
15 the Unconditional and Continuing Guarantee.
16 10. Defendant defaulted in tho payment of the amount due under said Tenn Loan Promissoty Nole marked
17 Exhibit "D". Attached hereto and marked Exhibit "H" is the itemized statement reflecting a principal balance due of
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$37,555.65.
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I declare under penalty of pe1ju1y under the laws of tho State of California that the foregoing is true and
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correct.
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Executed at Oakland, California,
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DECLARA TlON IN SUPPORT OF JUDGMENT [CCP SECTION 585(0)]
(CCP SECTION 58S(D)]
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MA!N STR~d.,,~
LAUNCH
TERM LOAN PROMISSORY NOTE
Amount: $50,000.00 California
February 21, 2018
Date
1. Promise to Pay, FOR VALUE RECEIVED, the undersigned The Washington LLC dba Luxurious
Nail Boutique, a California Limited Liability Company ("Borrower") promises to pay to the order of
MAIN STREET J_.AUNCH, a California nonprofit public benefit corporation ("Lender"), at such place
as maybe designated from time to time in writing by the holder hereof to the Borrower, the principal
sum of Fifty Thousand Dollars ($50,000.00) on or before Six Years (72 months) from the date of
this Note (the "Maturity Date"), together with interest on the unpaid·principal balance. from time to time
outstanding from .the date hereof until the entire principal amount. due hereunder is paid in full at the
"Borrowing Rate" (defined below), payable In accordance with the section entitled "Repayment" s.et
forth below.
2. Interest.
a. Borrowing Rate. The Borrowing Rate shall be 3.50 percent (3~50%) per annum. The
Borrowing Rate shall be calculated on the basis of a 360•day year and the actual number of
days elapsed. ·
b. Savings Clause, Borrower acknowledges that Lender does not intend to violate any
applicable laws. If, at any time, the rate of interest' shall be deemed by any competent court
of law, governmental agency or tribunal to exceed the maximum rate of interest permitted by .
the laws of any applicable jurisdiction or-the rules or regulations of any appropriate regulatory
authority or agency, then, if such rate of interest would be deemed excessive, that portion of
each interest pay~ent attributable to that portion of such interest rate that exceeds the
maximum rate of int_erest so permitted shall be deemed a voluntary repayment of principal.
3. Repayment.
a. Monthly installments of principal and interest shall be each in the amount of Fifty Thousand
Dollars ($50,000.00), commencing March 1, 2018, and continuing on the same day of each
successive month thereafter; with a final payment of all unpaid principal and interest on the
Maturity Date of February 1, 2024. ,
b. All payments shall be made in lawful currency of the United States of America in immediately
available funds, without abatement, counterclaim or set"off and free and clear of, and without
any deduction or withholding for, any taxes or other matters.
c. Prior to occurrence of an Event of Default (c1s defined in § 6 hereof), any payments or
prepayments received under this Note shall be credited, first, to any fees or other charges
due and owing hereunder, secon.d, to interest due and pwing hereunder and, third, to the
reduction of the principal payments outstanding hereunder in the inverse order of maturity.
After occurrence of an Event of Default, payments received under this Note shall be applied
in such manner as the Lender shall determine in its sole discretion. Payment and
acceptance of any sum on account of this Note which is less than the full amount due
hereunder shall not be considered a waiver ofany de'mand or default.
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EXHIBIT "A"
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4. Late Charges. If any amount of principal, Interest, fee,cost and/or other charge Is not paid in full
within fifteen ( 15) days after same Is due, then Borrower shall upon demand pay to the order of
Lender a late fee equal to five percent (5.0%) of the amo.unt then due. Lender may Impose on
Borrower an additional similar late fee for each successive fifteen (15) day period during which all or
any portion of such amount of principal, interest, fee, cost and/or other charge Is not paid In full. The ..
Imposition or collection of this fee shall not, however, constitute a waiver of any default or demand by
Lender.
5. Prepayment. This Note may be prepaid In whole or in part at any time without premium or penalty,
provided that each payment shall be accompanied by payment of all unpaid costs, fees, expenses
and late charges, if any, which are due plus all accrued and unpaid Interest due as of the date of such
prepayment.
6. Default. Upon the failure of Borrower to make any payment when due or the occurrence of any other
Event of Default as defined in that certain Loan Agre.ement of even date between Borrower and
Lender, this Note and ail interest accrued hereon shall. become due and payable forthwith at the
ele.ction of the holder.The payment and acceptance of any sum on account of this Note shall not be
considered a waiver of such right of election. Upon and after the occurrence of any Event of Default,
the outstanding principal balance of this Note sh.all accrue interest at two percent (2.0%) in excess of
the Borrowing Rate.
7. Borrower's Obligations Unaffected.
a. The obligations· of Borrower hereunder are independent of the obligations to Lender of any
pres~nt or future guarantor, endorser or other obligor, or any other party who now or ·
hereafter becomes liable under this Note by contract, by operation of law, or otherwise
(Borrower and each such other party are also referred to as an "Obligor").
b. Borrower waives: (1) diligence, notice of default, non-payment, demand for payment, notice
of acceptance of this. instrument, the Loan Agreement or any other loan or security
instrument, and indulgences and notices of any kind; (2) any delay or failure of Lender in the
exercise of any right or remedy; (3) the release, compromise, subordination, substitution,
impairment, or failure to perfect any security or any rights or remedies against any Obligor(s);
(4) any right to marshaling, subrogation, reimbursement or indemnity, until all Indebtedness
has been fully and indefeasibly paid and Borrower's ability to obtain credit under the Loan
Agreement has been irrevocably terminated; (5) any right to request or obtain from Lender
information on any Obligor(s); and (6) any act, omission or thing which might operate as a
legal or equitable defense or discharge of any Qbligor(s).
c. Without notice to, or further consent of any Obllgor(s), Borrower consents to: (1) every
renewal, forbearance, extension of time, and other change in the terms or conditions of any
indebtedness; (2) every waiver of Lender's rights against any•Obligor(s) or any security,
without such waiver prohibiting the later exercise of the same or similar rights; and (3) any
election of rights or remedies by Lender, Including Lender's enforcement of this instrument
without first pursuing Lender's rights against any Obligor(s) or any security. Neither
bankruptcy, insolvency, merger, consolidation, dissolution or death of any Obligor(s) shall
affect Borrower's obligations to Lender hereunder. Borrower subordinates to the
indebtedness of the Obligor(s) to Lender any claim or security it now or hereafter may have
against any other Obligor(s) or its assets. Without limiting any of Lender's rights or
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EXHIBiT "A.
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Borrower's obligations, Borrower waives all suretyship defenses.
d. Borrower assumes all responsibility for being and keeping itself informed of the financial
condition and assets of the other Obligor(s), and of all other circumstances bearing upon the
risk of nonpayment of the indebtedness and the nature, scope, and extent of the risks that
Borrower assumes and incurs hereunder, and agrees that Lender sl1all have no duty to
advise any Obligor(s) of information known to it regarding such circumstances or risks.
8. Miscellaneous
a. ·Reservation of Lender's Rights. Notwithstanding any course of dealing or course of
performance: (1) neither failure nor delay on the part of Lender to exercise any right, power,
or p·rivilege hereunder shall operate as a waiver thereo·f, nor shall any single or partial
exercise of any right, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege;(2) no notice to or demand upon
Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of
Lender to take further action without notice or demand; and (3) no amendment, modification,
· rescission, waiver or release of any provision of this N_ote shall be effective unless the same
shall be in writing and signed by the holder hereof.
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b. Headings: References to Parties. The headings herein.are for convenience only and shall
not be deemed to be part of this Note. Any references to any party shall be construed in the
masculine, feminine or neuter, singular or plural, as the context may require.
c. Completion of Instrument: Reproduction Admissible. Borrower authorizes lender to complete
this Note if delivered incomplete in any respect. A photographic or other reproduction of this
Note shall be admissible in evidence with the same effect as the original Note in any judicial
or other proceeding, whether or not the original is in existence.
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d. Set-Off. At any time after the occurrence of an Event of Default, without demand or notice
(which Borrower expressly waives), and regardless of the adequacy of any other collate_ral
security, Lender may set off against any and all collateral and other property now or hereafter
In Lender's possession, custody, safekeeping or control (all of the foregoing whether In
Borrower's sole name, jointly with others, or for a specific purpose), and apply same to the
amounts outstanding under this Note.
e. Governing Law. This Note shall be governed by, and shall be construed and Interpreted in
accordance with, the laws of the State of California.
f. Presentment. Without limiting any other provision of this Note, Borrower waives
presentment, demand for payment, protest, notice of nonpayment, and all suretyshtp
defenses.
The Washington LL.C dba Luxurious Nail Boutique
Q
lif~-
rni Limited Liability Company
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-=----=----""L-=-_--_-:.._-_-_-_-_-_-_-_-_-_-_-_-=-.--:------------
R[chard Washington
Owner/Director/CEO
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!EXHIBIT "A"
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MA~N STRJEK::l'
LAUNCH
LOAN AGREEMENT
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Made this February 21, 2018, between The Washington LLC dba Luxurious Nail Boutique, a
California Limited Liability Company ("Borrower"), and MAIN STREET LAUNCH, a California
nonprofit public benefit corporation ("Lender").
RECITALS
A Borrower has requested Lender to make a term loan to Borrower for business purposes.
8. Lender Is willing to make such a term loan on the terms and conditions of this Agreement.
AGREEMENT
1. Definitions and Certain Rules of Construction.
a. Definitions. As used in this Agreement:
l'Affiliate" means a Person that controls, is controlled by, or is under common control with
another Person;
(1) That controls twenty percent (20%) or more of the outstanding voting power of
another Person; or
(2) Twenty percent (20%) or more of whose outstanding voting power is controlled by
another Person.
For purposes of this definition, "control" means the direct or indirect power to redirect or
cause the direction of the management, operations, or policies of a Person through 9 ny means
(including through legal or beneficial ownership of voting stock or other equity interests, through
one or more Intermediaries, or pursuant to contract, arrangement, or understanding). ,
"Collateral" means all property described in .any Security Document.
"Commonly Controlled Entity" means any entity under common control with Borrower under
26 U.S,C, § 414(b) or (c).
"Consolidated Cash Flow" means, for any period, the total of:
(1) Consolidated N(;lt Income; plus
(2) Amounts deducted in computing such Consolidated Net Income in respect of
depreciation, amortization, interest on indebtedness (Including payments in the
nature of interest on capitalized leases), and taxes based upon or measured by
income; minus
(3) Capital expenditures. ·
"Consolidated Fixed Charges" means, for any period, the sum of:
(1) The aggregate amount of interest, including payment in the nature of Interest under
capitalized leases, paid•or accrued by Borrower or any Subsidiary (whether such
interest is reflected as an item of expense or capitalized) on indebtedness; plus
(2) The aggregate amount of all mandatory, scheduled payments, prepayments and
sinking fund payments, In each case with respect to principal paid or accrued by
Borrower or a Subsidiary in respect of indebtedness of borrowed money, .
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indebtedness evidenced by notes, debentures or similar Instruments, indebtedness in
respect of capitalized leases, indebtedness for the deferred purchase price of asse_ts
(other than normal trade accounts payable In the ordinary course of business), and
indebtedness in respect of mandatory redemption, dividend or distribution rights on
capital stock or other equity; plus
(3) Any dividends or distributions paid or payable by Borrower or any Subsidiary (other
than dividends or distributions paid or payable by a Subsidiary only to Borrower or to
another Subsidiary).
"Consolidated NE?t Income" means the net Income of Borrower and its Subsidiaries,
determined on a consolidated basis, excluding:
(1) Income (or deficit) of any Person in which Borrower has an ownership interest,
except for amounts actually received in cash, to the extent accrued durln·g the time
Borrower has· an ownership interest in such Person;
(2) The aggregate amount _of all investments, regardless of form, by Borrower in any
such Person for the purpose of funding any deficit of such Person;
(3) All amounts included in computing net income (or deficit) in respect to write-up of any
asset; and
(4) Extraordinary and non-recurring gains.
"Events of Default" are defined in § 6 of this Agreement.
"Governmental Unit" means the United States, any State of the United States, the District of
Columbia, Puerto Rico, any territory or insular possession subject to United States jurisdiction,
_any county, any municipality, and foreign state_, any other domestic.or foreign government, and
any court, tribunal, department, agency or instrumentality of any of the foregoing,
"Guarantors" means, for the purposes of§ 3(a) and § 4(a) of this Agreement, Richard
Washington for all other purposes, "Guarantors" Includes not only such Persons, but also all
other Persons who may hereafter guaranty the payment or collectio~ of, or become
accommodation parties with respect to, any portion of the Obligations.
The term "indebtedness" includes every obligation of any kind to pay money or deliver value,
whether on account of a loan, purchase, lease (whether or not capitalized), letter of credit,
contingent obligation (such as a guaranty br reimbursement obligation), indemnity, funded or
unfunded liability, or other undertaking.
"Law" and "Laws" mean all present and future laws, statutes, codes, rules,regulations,
ordinances, rules of law, principles of law, orders, decrees, judgments, directives, or the
equivalent.
. "Loan" means the Term Loan,
"Loan Documents" means this Agreement, the Notes, the Security Documents, and all other
agreements, instruments, guaranties, pledges, assignments, certificates, and other documents
delivered by Borrower, any Guarantor or any other Person under or in connection with this
Agreement or any Obligations, as the same may be amended, modified, restated or
supplemented from time to time.
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EXHIBIT "B"
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"Material Adverse Change" means a material adverse change in any one or more of the
following:
(1) Borrower's, any Subsidiary's or any Guarantor's assets, operations, business or
financial condition, or business or financial prospects;
(2) Borrower's ability to pay or perform the Obligations when due;
(3) Any Collateral;
(4) The perfection or priority of Lender's Security Interest in any Collateral; or
(5) Lender's rights and remedies under any Loan Document.
"Note" means the Term Note.
"Obligations" means all present and future indebtedness, obligations, covenants,
undertakings and liability of Borrower to Lender of any kind whatsoever (Including the Loan and
other amounts due under the Loan Documents, Including all principal, interest, premiums, fees,
charges, costs, expenses and other amounts), individually or with others, joint or several, direct or
indirect, absolute or contingent, liquidated or disputed, due or to become due, however
evidenced, however created (including directly, by assignment, transfer, pursuant to Law, or by
operation of Law), whether or not same are from time to time reduced or extinguished and
thereafter increased or incurred, and whether or not presently contemplated by· the parties on the
date hereof.
. "Person" includes any individual, partnership, joint venture, firm, association, trust,
corporation, limited liability company, low-profit limited liability company, or any other type of
association or entity, including any Governmental Unit.
"PBGC" means the Pension Benefit Guaranty Corporation.
·The term "record" when used as a noun means information that Is inscribed on a tangible
medium or vyhich is stored In an electronic or other medium and is retrievable in perceivable form.
"Requiremer.it" or "Requirements" mean all present and future terms, conditions and
requirements of any license, permit, consent, approval, covenant, restriction, or easement.
"Security Documents" means all agreements, security agreements, mortgages, assignments,
documents or instruments now or hereafter securing all or any part of the Obligations or of any
indebtedness of a·ny Guarantor, as the same_ may be amended, modified, restated or
supplemented from time to time.
"Security Interest" includes any lien, charge, mortgage, pledge, assignment, encumbrance,
retained title,purchase, or security Interest, whether created or arising voluntarily, involuntarily or
by operation of law:
"State" means the State of California.
"Subsidiary" means a Person of which Borrower directly or indirectly owns or controls
(including through ownership or control of intermediate entities) voting or other power sufficient
wnder ordinary circumstances (not dependent upon the happening of a contingency) to elect or to
control the actions of a majority of the directors, officers, trustees,
managing partners, managers,
or others under whose authority the power of such Person Is exercised or under whose direction
· the business or affairs of such Person are managed.
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EXHIBIT "B
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"Tangible Net Worth" means the result of subtracting the following from the aggregate of the
issued share capital, surplus, reserves, and retained earnings account on a balance sheet of -
Bor~ower and its Subsidiaries: any capitalized leaseholds; share capital discount and expense;
unamortized discount and expense on indebtedness; write-up of assets; any excess of cost over
market value of lnvestmenti;;; development, pre-operating, preproduction, and start-up expenses;
the Loan; deferred expenses; notes, accounts receivable or other sums ctue from any Subsidiary,
Affiliate or Guarantor or from any officer; director, manager, or direct or indirect owner of any
equity Interest In Borrower; goodwill; and all other intangible assets to the extent included in such
balance sheet of Borrower and Its Subsidiaries.
"Term Loan" means a term loan In the principal amount ofFifty Thousand Dollars
($50,000.00), evidenced by Borrower's note with appropriate Insertions (the "Term Note").
"UCC" means the Uniform Commercial Code as now or hereafter in effect.in the State.
b, Miscellaneous. The captions and headings in this Agreement are for convenience only
and are not to be used to interpret or define the provisions of this Agreement. Any
references to any Person shall be construed in the masculine, feminine or neuter,
s'ingular or plural,
a·s the context may require. The terms "include_s" and "including" are
not exclusive.
2, The Loan.
a. Commitment. Lender hereby agrees, on tne terms and conditions of this Agreement, to
make the 1erm Loan to Borrower.
b. Manner of Borrowing. Prior to or concurrently with the execution hereof, Borrower shall
certify to Lender that the officer (or officers) of Borrower that execute this Agreement and
the other Loan Documents is (or are) authorized to execute this Agreement and the other
Loan·oocuments on Borrower's behalf, and Lender may conclusively rely on such
certification until it receives notice in writing to the contrary.
3. Conditions Precedent. ,
a. Term Loan. The obligation of Lender to make the Term Loan Is subject to the following
conditions precedent:
(1) Lender shall have received a certified copy of all action taken by Borrower
to authorize the execution, delivery, and performance of this Agreement
and the other Loan Documents required by this Section and the borrowing
by it hereunder, and such other records ~s Lender shall reasbnably
require.
(2) Borrower shall have granted to Lender a perfected first-priority security
interest in all of its presently owned and hereafter acquired personal
property and fixtures, including all equipment, fixtures, inventory, accounts,
general intangibles, chattel paper, documents, instruments, deposit
accounts, letter-of-credit rights, and investment property, and all proceeds
of the foregoing (each as defined In the UCC), upon the terms and
conditions set forth in a security agreement with terms and conditions
satisfactory to Lender.
(3) Each Guarantor shall have executed and delivered to Lender Its guaranty
of all Obligations, with terms and conditions satisfactory to Lender.
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(4) Borrower shall have paid to Lender a non-refundable administrative fee
(including, but not limited to,guaranty premium, UCC filing fees, etc.) of
$1,164.00.
b. Conditions for Lender's Benefit. These conditions precedent exist solely for Lender's
benefit, and Lender in its sole discretion shall determine whether they have been
satisfied.
4. Representations and Warranties.
a. To induce Lender to enter Into this Agreement and make the Term Loan, Borrower
hereby represents and wc;1rrants to Lender that:
(1) Corporate Existence, Power and Authority. Borrower is a corporation duly
incorporated, validly existing, and in good standing under the Laws of
California and Is duly qualified to transact business or own real property in
each state or other jurisdiction in which any material part of its assets are
located or in which it conducts any important or material part of its
business. Borrower has corporate power to make this Agreement and to
borrow hereunder. The making and performance by Borrower of the Loan
Documents have been duly authorized by all necessary corporate action.
(2) Obligations Absolute. The Loan Documents are the legal, valid and
binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms. Borrower's obligation to repay the
Loan, together with all interest accrued thereon and other charges, is
absolute and unconditional, and there exists no right of set-off or
recoupment, counterclaim, cross-claim or defense of any nature
whatsoever to payment of performance of the obligations.
(3) No Violation. Borrower's execution, delivery and performance of the Loan
Documents do not and shall hot (A) violate any Law or Requirement to
which Borrower is subject, (B) conflict with or result in a breach of
Borrower's Articles of Organization or Bylaws or any agreement 9r
instrument to which Borrower is a party or by which It or its assets are
bound, or (C) result in the creation or imposition of any Security Interest
upon any ofBorrower's present or future assets, other than Security
Interests in favor of Lender.
(4) Financial Condition. Th.e financial statements (including balance sheets,
statements of income and retained earnings, statements of cash flows,
and, with respect to individuals, personal financial statements) of Borrower,
its Subsidiaries, and the Guarantors that have been furnished to Lender
are complete and correct and fairly represent the financial condition of
Borrower, its Subsidiaries and the Guarantors as at the dates of said
financial statements and the results of their operations and financial
activities for the periods ending on said dates, There is no material·
indebtedness not disclosed by, or rese1ved against, in said financial
statements. At the present time there are no material unrealized or
anticipated losses from any unfavorable commitments of Borrower, any
Subsidiary or any Guarantor. Since the date of the latest of such financial
statements there has been no Material Adverse Change.
(5) Litigation. There are not suits or proceedings pending or (to Borrower's
knowledge) threatened against or affecting Borrower, any Subsidiary or
any Guarantor that, if adversely determined, would directly or Indirectly
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cause a Material Adverse Change. There are no proceedings by or before
any Governmental Unit pending or (to Borrower's knowledge) threatened
against Borrower, any Subsidiary or any Guarantor.
b. Reaffirmation and Continuing Nature of Representations and Warranties, These
representations and warranties are of a continuing nature and shall survive the
termination of this Agreement and full payment and performance of the Obligations,
5, Covenants. So long as the Term Loan shall be outsta,nding and until the full payment and
performance of all Obligations, Borrower agrees that, unless Lender shall otherwise consent in
writing:
a. Financial and Other Information. Borrower shall furnish Lender:
(1) Within one hundred twenty (120) days after the end of each fiscal year of
Borrower, copies of balance sheets of Borrower and its Subsidiaries, as at
the close of such fiscal year, and statements of income and retained
earnings and statements of cash flows of Borrower and its Subsidiaries for
such year, certified by independent certified accountants selected by
Borrower and satisfactory to Lender;
(2) Within thirty (30) days after the end of each of the first three quarters of
eacl1 fiscal year of Borrower, copies of balance sheets of Borrower and its
Subsidiaries as at the end of such quarter, and statements of income and
retained e_arnings and statements of cash flows of Borrower and its
Subsidiaries for the period from the beginning of the fiscal year to the end
of such quarter, in each case certified by an authorized financial or ·
accounting officer of Borrower;
(3) Within one hundred twenty (120) days after the end of each fiscal year of
Borrower, a certificate of such independent public accountants, and within
thirty (30) days after the end of each quarter of each fiscal year a certificate
of an authorized financial or a9counting officer of Borrower, in each case
stating whether Borrower is in compliance with the financial covenants set
forth in§ 5(b) though (g) hereof, and whether any Event of Default or any
event that with notice, lapse of time or otherwise would become an Event
of Default has continued or is continuing;
(4) Within one hundred twenty (120) days after the end of each tax year,
copies of Borrower's and each
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Brian Miles/Bar #191136 Attorney for The National Collection Agency Inc 2 2255 Morello Ave Suite 240 Pleasant Hill, CA 94523 ELECTRONICALLY 3 P 925-938-4500 F I L E D F 925-938-7007 Superior Court of California, County of San Francisco 4 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO 03/03/2020 5 Clerk of the Court BY: NADITA MASON UNLIMITED CIVIL JURISDICTION Deputy Clerk 6 THE NATIONAL COLLECTION AGENCY, INC. Case No.: CGC-19-580128 7 Plaintiff, 8 vs. DECLARATION IN SUPPORT OF JUDGMENT 9 [CCP SECTION 585(D)] RICHARD E. WASHINGTON, ET AL. 10 Defendant 11 12 I, the undersigned declare as follows: 13 1. That I am the Chief Financial Officer of Main Street Launch, Inc. hereinafter referred to as Main. As 14 Chief Financial Officer of Main, I have care, custody and control of the business records as they relate to this matter 15 and am familiar with the contents thereof. The business records are made in the regular course of business and are 16 made at or about the time of the act, condition or event which they record. Prior to executing this declaration, I 17 personally reviewed all the relevant documents and am authorized by plaintiff's assignor Main, to make this 18 declaration and if sworn as a witness in this action I could and would be competent to testify thereto, and would 19 testify ofmy own personal knowledge as follows: 20 2. Plaintiff, The National Collection Agency, Inc., is the assignee of Main with respect to monies due from 21 defendant in the sum of$84,642.58. 22 3. Defendant executed the Term Loan Promissory Note dated February 21, 2018, a true and correct copy of 23 which is attached hereto and marked Exhibit "A" and agreed to the terms and conditions set forth in the Term Loan 24 Promissory Note. 25 4. Defendant executed the Loan Agreement dated February 21, 2018, a true and correct copy of which is 26 attached hereto and marked Exhibit "B" and agreed to the terms and conditions set forth in the Loan Agreement. 27 28 1 DECLARATION IN SUPPORT OF JUDGMENT [CCP SECTION 585(D)] [CCP SECTION 585(D)] 5. Defendant executed the Unconditional and Continuing Guarnnty dated Febrnary 21, 2018, a h·ue and 2 correct copy of which is attached hereto and marked Exhibit "C" and agreed to the terms !111d conditions set forth in 3 the Unconditional and Continuing Guarantee. 4 6. Defendant defaulted in the payment of the amount due under said Tenn Loan Promissory Note mat·ked 5 Exhibit "A". Attached hernto and marked Exhibit "G" is the itemized statement reflecting a principal balance due of 6 $47,086.93. 7 8 7. Defendant executed the Term Loan Promissory Note dated August 23, 2016, a true and correct copy of 9 which is attached hereto and marked Exhibit "D" and agreed to the terms and conditions set forth in the Term Loan 10 Promissory Note. 11 8. Defendant executed the Loan Agreement dated August 23, 2016, a true and conect copy of which is 12 attached hereto and marked Exhibit "E" and agreed to the terms nnd conditions set forth in the Loan Agreement. 13 9. Defendant executed the Unconditional and Continuing Guaranty dated August 23, 2016, a trne and 14 correct copy of which is attached hereto and marked Exhibit "F" and agreed to the terms and conditions set forth in 15 the Unconditional and Continuing Guarantee. 16 10. Defendant defaulted in tho payment of the amount due under said Tenn Loan Promissoty Nole marked 17 Exhibit "D". Attached hereto and marked Exhibit "H" is the itemized statement reflecting a principal balance due of 18 $37,555.65. 19 I declare under penalty of pe1ju1y under the laws of tho State of California that the foregoing is true and 20 correct. 21 Executed at Oakland, California, 22 23 24 25 26 27 28 2 DECLARA TlON IN SUPPORT OF JUDGMENT [CCP SECTION 585(0)] (CCP SECTION 58S(D)] ' ( u MA!N STR~d.,,~ LAUNCH TERM LOAN PROMISSORY NOTE Amount: $50,000.00 California February 21, 2018 Date 1. Promise to Pay, FOR VALUE RECEIVED, the undersigned The Washington LLC dba Luxurious Nail Boutique, a California Limited Liability Company ("Borrower") promises to pay to the order of MAIN STREET J_.AUNCH, a California nonprofit public benefit corporation ("Lender"), at such place as maybe designated from time to time in writing by the holder hereof to the Borrower, the principal sum of Fifty Thousand Dollars ($50,000.00) on or before Six Years (72 months) from the date of this Note (the "Maturity Date"), together with interest on the unpaid·principal balance. from time to time outstanding from .the date hereof until the entire principal amount. due hereunder is paid in full at the "Borrowing Rate" (defined below), payable In accordance with the section entitled "Repayment" s.et forth below. 2. Interest. a. Borrowing Rate. The Borrowing Rate shall be 3.50 percent (3~50%) per annum. The Borrowing Rate shall be calculated on the basis of a 360•day year and the actual number of days elapsed. · b. Savings Clause, Borrower acknowledges that Lender does not intend to violate any applicable laws. If, at any time, the rate of interest' shall be deemed by any competent court of law, governmental agency or tribunal to exceed the maximum rate of interest permitted by . the laws of any applicable jurisdiction or-the rules or regulations of any appropriate regulatory authority or agency, then, if such rate of interest would be deemed excessive, that portion of each interest pay~ent attributable to that portion of such interest rate that exceeds the maximum rate of int_erest so permitted shall be deemed a voluntary repayment of principal. 3. Repayment. a. Monthly installments of principal and interest shall be each in the amount of Fifty Thousand Dollars ($50,000.00), commencing March 1, 2018, and continuing on the same day of each successive month thereafter; with a final payment of all unpaid principal and interest on the Maturity Date of February 1, 2024. , b. All payments shall be made in lawful currency of the United States of America in immediately available funds, without abatement, counterclaim or set"off and free and clear of, and without any deduction or withholding for, any taxes or other matters. c. Prior to occurrence of an Event of Default (c1s defined in § 6 hereof), any payments or prepayments received under this Note shall be credited, first, to any fees or other charges due and owing hereunder, secon.d, to interest due and pwing hereunder and, third, to the reduction of the principal payments outstanding hereunder in the inverse order of maturity. After occurrence of an Event of Default, payments received under this Note shall be applied in such manner as the Lender shall determine in its sole discretion. Payment and acceptance of any sum on account of this Note which is less than the full amount due hereunder shall not be considered a waiver ofany de'mand or default. 1 EXHIBIT "A" ( 4. Late Charges. If any amount of principal, Interest, fee,cost and/or other charge Is not paid in full within fifteen ( 15) days after same Is due, then Borrower shall upon demand pay to the order of Lender a late fee equal to five percent (5.0%) of the amo.unt then due. Lender may Impose on Borrower an additional similar late fee for each successive fifteen (15) day period during which all or any portion of such amount of principal, interest, fee, cost and/or other charge Is not paid In full. The .. Imposition or collection of this fee shall not, however, constitute a waiver of any default or demand by Lender. 5. Prepayment. This Note may be prepaid In whole or in part at any time without premium or penalty, provided that each payment shall be accompanied by payment of all unpaid costs, fees, expenses and late charges, if any, which are due plus all accrued and unpaid Interest due as of the date of such prepayment. 6. Default. Upon the failure of Borrower to make any payment when due or the occurrence of any other Event of Default as defined in that certain Loan Agre.ement of even date between Borrower and Lender, this Note and ail interest accrued hereon shall. become due and payable forthwith at the ele.ction of the holder.The payment and acceptance of any sum on account of this Note shall not be considered a waiver of such right of election. Upon and after the occurrence of any Event of Default, the outstanding principal balance of this Note sh.all accrue interest at two percent (2.0%) in excess of the Borrowing Rate. 7. Borrower's Obligations Unaffected. a. The obligations· of Borrower hereunder are independent of the obligations to Lender of any pres~nt or future guarantor, endorser or other obligor, or any other party who now or · hereafter becomes liable under this Note by contract, by operation of law, or otherwise (Borrower and each such other party are also referred to as an "Obligor"). b. Borrower waives: (1) diligence, notice of default, non-payment, demand for payment, notice of acceptance of this. instrument, the Loan Agreement or any other loan or security instrument, and indulgences and notices of any kind; (2) any delay or failure of Lender in the exercise of any right or remedy; (3) the release, compromise, subordination, substitution, impairment, or failure to perfect any security or any rights or remedies against any Obligor(s); (4) any right to marshaling, subrogation, reimbursement or indemnity, until all Indebtedness has been fully and indefeasibly paid and Borrower's ability to obtain credit under the Loan Agreement has been irrevocably terminated; (5) any right to request or obtain from Lender information on any Obligor(s); and (6) any act, omission or thing which might operate as a legal or equitable defense or discharge of any Qbligor(s). c. Without notice to, or further consent of any Obllgor(s), Borrower consents to: (1) every renewal, forbearance, extension of time, and other change in the terms or conditions of any indebtedness; (2) every waiver of Lender's rights against any•Obligor(s) or any security, without such waiver prohibiting the later exercise of the same or similar rights; and (3) any election of rights or remedies by Lender, Including Lender's enforcement of this instrument without first pursuing Lender's rights against any Obligor(s) or any security. Neither bankruptcy, insolvency, merger, consolidation, dissolution or death of any Obligor(s) shall affect Borrower's obligations to Lender hereunder. Borrower subordinates to the indebtedness of the Obligor(s) to Lender any claim or security it now or hereafter may have against any other Obligor(s) or its assets. Without limiting any of Lender's rights or 2 11 EXHIBiT "A. ( Borrower's obligations, Borrower waives all suretyship defenses. d. Borrower assumes all responsibility for being and keeping itself informed of the financial condition and assets of the other Obligor(s), and of all other circumstances bearing upon the risk of nonpayment of the indebtedness and the nature, scope, and extent of the risks that Borrower assumes and incurs hereunder, and agrees that Lender sl1all have no duty to advise any Obligor(s) of information known to it regarding such circumstances or risks. 8. Miscellaneous a. ·Reservation of Lender's Rights. Notwithstanding any course of dealing or course of performance: (1) neither failure nor delay on the part of Lender to exercise any right, power, or p·rivilege hereunder shall operate as a waiver thereo·f, nor shall any single or partial exercise of any right, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power, or privilege;(2) no notice to or demand upon Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action without notice or demand; and (3) no amendment, modification, · rescission, waiver or release of any provision of this N_ote shall be effective unless the same shall be in writing and signed by the holder hereof. I b. Headings: References to Parties. The headings herein.are for convenience only and shall not be deemed to be part of this Note. Any references to any party shall be construed in the masculine, feminine or neuter, singular or plural, as the context may require. c. Completion of Instrument: Reproduction Admissible. Borrower authorizes lender to complete this Note if delivered incomplete in any respect. A photographic or other reproduction of this Note shall be admissible in evidence with the same effect as the original Note in any judicial or other proceeding, whether or not the original is in existence. . . d. Set-Off. At any time after the occurrence of an Event of Default, without demand or notice (which Borrower expressly waives), and regardless of the adequacy of any other collate_ral security, Lender may set off against any and all collateral and other property now or hereafter In Lender's possession, custody, safekeeping or control (all of the foregoing whether In Borrower's sole name, jointly with others, or for a specific purpose), and apply same to the amounts outstanding under this Note. e. Governing Law. This Note shall be governed by, and shall be construed and Interpreted in accordance with, the laws of the State of California. f. Presentment. Without limiting any other provision of this Note, Borrower waives presentment, demand for payment, protest, notice of nonpayment, and all suretyshtp defenses. The Washington LL.C dba Luxurious Nail Boutique Q lif~- rni Limited Liability Company ~ /~ . -=----=----""L-=-_--_-:.._-_-_-_-_-_-_-_-_-_-_-_-=-.--:------------ R[chard Washington Owner/Director/CEO 3 !EXHIBIT "A" ( ( MA~N STRJEK::l' LAUNCH LOAN AGREEMENT ,. Made this February 21, 2018, between The Washington LLC dba Luxurious Nail Boutique, a California Limited Liability Company ("Borrower"), and MAIN STREET LAUNCH, a California nonprofit public benefit corporation ("Lender"). RECITALS A Borrower has requested Lender to make a term loan to Borrower for business purposes. 8. Lender Is willing to make such a term loan on the terms and conditions of this Agreement. AGREEMENT 1. Definitions and Certain Rules of Construction. a. Definitions. As used in this Agreement: l'Affiliate" means a Person that controls, is controlled by, or is under common control with another Person; (1) That controls twenty percent (20%) or more of the outstanding voting power of another Person; or (2) Twenty percent (20%) or more of whose outstanding voting power is controlled by another Person. For purposes of this definition, "control" means the direct or indirect power to redirect or cause the direction of the management, operations, or policies of a Person through 9 ny means (including through legal or beneficial ownership of voting stock or other equity interests, through one or more Intermediaries, or pursuant to contract, arrangement, or understanding). , "Collateral" means all property described in .any Security Document. "Commonly Controlled Entity" means any entity under common control with Borrower under 26 U.S,C, § 414(b) or (c). "Consolidated Cash Flow" means, for any period, the total of: (1) Consolidated N(;lt Income; plus (2) Amounts deducted in computing such Consolidated Net Income in respect of depreciation, amortization, interest on indebtedness (Including payments in the nature of interest on capitalized leases), and taxes based upon or measured by income; minus (3) Capital expenditures. · "Consolidated Fixed Charges" means, for any period, the sum of: (1) The aggregate amount of interest, including payment in the nature of Interest under capitalized leases, paid•or accrued by Borrower or any Subsidiary (whether such interest is reflected as an item of expense or capitalized) on indebtedness; plus (2) The aggregate amount of all mandatory, scheduled payments, prepayments and sinking fund payments, In each case with respect to principal paid or accrued by Borrower or a Subsidiary in respect of indebtedness of borrowed money, . 1 indebtedness evidenced by notes, debentures or similar Instruments, indebtedness in respect of capitalized leases, indebtedness for the deferred purchase price of asse_ts (other than normal trade accounts payable In the ordinary course of business), and indebtedness in respect of mandatory redemption, dividend or distribution rights on capital stock or other equity; plus (3) Any dividends or distributions paid or payable by Borrower or any Subsidiary (other than dividends or distributions paid or payable by a Subsidiary only to Borrower or to another Subsidiary). "Consolidated NE?t Income" means the net Income of Borrower and its Subsidiaries, determined on a consolidated basis, excluding: (1) Income (or deficit) of any Person in which Borrower has an ownership interest, except for amounts actually received in cash, to the extent accrued durln·g the time Borrower has· an ownership interest in such Person; (2) The aggregate amount _of all investments, regardless of form, by Borrower in any such Person for the purpose of funding any deficit of such Person; (3) All amounts included in computing net income (or deficit) in respect to write-up of any asset; and (4) Extraordinary and non-recurring gains. "Events of Default" are defined in § 6 of this Agreement. "Governmental Unit" means the United States, any State of the United States, the District of Columbia, Puerto Rico, any territory or insular possession subject to United States jurisdiction, _any county, any municipality, and foreign state_, any other domestic.or foreign government, and any court, tribunal, department, agency or instrumentality of any of the foregoing, "Guarantors" means, for the purposes of§ 3(a) and § 4(a) of this Agreement, Richard Washington for all other purposes, "Guarantors" Includes not only such Persons, but also all other Persons who may hereafter guaranty the payment or collectio~ of, or become accommodation parties with respect to, any portion of the Obligations. The term "indebtedness" includes every obligation of any kind to pay money or deliver value, whether on account of a loan, purchase, lease (whether or not capitalized), letter of credit, contingent obligation (such as a guaranty br reimbursement obligation), indemnity, funded or unfunded liability, or other undertaking. "Law" and "Laws" mean all present and future laws, statutes, codes, rules,regulations, ordinances, rules of law, principles of law, orders, decrees, judgments, directives, or the equivalent. . "Loan" means the Term Loan, "Loan Documents" means this Agreement, the Notes, the Security Documents, and all other agreements, instruments, guaranties, pledges, assignments, certificates, and other documents delivered by Borrower, any Guarantor or any other Person under or in connection with this Agreement or any Obligations, as the same may be amended, modified, restated or supplemented from time to time. 2 EXHIBIT "B" ( "Material Adverse Change" means a material adverse change in any one or more of the following: (1) Borrower's, any Subsidiary's or any Guarantor's assets, operations, business or financial condition, or business or financial prospects; (2) Borrower's ability to pay or perform the Obligations when due; (3) Any Collateral; (4) The perfection or priority of Lender's Security Interest in any Collateral; or (5) Lender's rights and remedies under any Loan Document. "Note" means the Term Note. "Obligations" means all present and future indebtedness, obligations, covenants, undertakings and liability of Borrower to Lender of any kind whatsoever (Including the Loan and other amounts due under the Loan Documents, Including all principal, interest, premiums, fees, charges, costs, expenses and other amounts), individually or with others, joint or several, direct or indirect, absolute or contingent, liquidated or disputed, due or to become due, however evidenced, however created (including directly, by assignment, transfer, pursuant to Law, or by operation of Law), whether or not same are from time to time reduced or extinguished and thereafter increased or incurred, and whether or not presently contemplated by· the parties on the date hereof. . "Person" includes any individual, partnership, joint venture, firm, association, trust, corporation, limited liability company, low-profit limited liability company, or any other type of association or entity, including any Governmental Unit. "PBGC" means the Pension Benefit Guaranty Corporation. ·The term "record" when used as a noun means information that Is inscribed on a tangible medium or vyhich is stored In an electronic or other medium and is retrievable in perceivable form. "Requiremer.it" or "Requirements" mean all present and future terms, conditions and requirements of any license, permit, consent, approval, covenant, restriction, or easement. "Security Documents" means all agreements, security agreements, mortgages, assignments, documents or instruments now or hereafter securing all or any part of the Obligations or of any indebtedness of a·ny Guarantor, as the same_ may be amended, modified, restated or supplemented from time to time. "Security Interest" includes any lien, charge, mortgage, pledge, assignment, encumbrance, retained title,purchase, or security Interest, whether created or arising voluntarily, involuntarily or by operation of law: "State" means the State of California. "Subsidiary" means a Person of which Borrower directly or indirectly owns or controls (including through ownership or control of intermediate entities) voting or other power sufficient wnder ordinary circumstances (not dependent upon the happening of a contingency) to elect or to control the actions of a majority of the directors, officers, trustees, managing partners, managers, or others under whose authority the power of such Person Is exercised or under whose direction · the business or affairs of such Person are managed. 3 11 EXHIBIT "B ,,,i.,•.,·, "Tangible Net Worth" means the result of subtracting the following from the aggregate of the issued share capital, surplus, reserves, and retained earnings account on a balance sheet of - Bor~ower and its Subsidiaries: any capitalized leaseholds; share capital discount and expense; unamortized discount and expense on indebtedness; write-up of assets; any excess of cost over market value of lnvestmenti;;; development, pre-operating, preproduction, and start-up expenses; the Loan; deferred expenses; notes, accounts receivable or other sums ctue from any Subsidiary, Affiliate or Guarantor or from any officer; director, manager, or direct or indirect owner of any equity Interest In Borrower; goodwill; and all other intangible assets to the extent included in such balance sheet of Borrower and Its Subsidiaries. "Term Loan" means a term loan In the principal amount ofFifty Thousand Dollars ($50,000.00), evidenced by Borrower's note with appropriate Insertions (the "Term Note"). "UCC" means the Uniform Commercial Code as now or hereafter in effect.in the State. b, Miscellaneous. The captions and headings in this Agreement are for convenience only and are not to be used to interpret or define the provisions of this Agreement. Any references to any Person shall be construed in the masculine, feminine or neuter, s'ingular or plural, a·s the context may require. The terms "include_s" and "including" are not exclusive. 2, The Loan. a. Commitment. Lender hereby agrees, on tne terms and conditions of this Agreement, to make the 1erm Loan to Borrower. b. Manner of Borrowing. Prior to or concurrently with the execution hereof, Borrower shall certify to Lender that the officer (or officers) of Borrower that execute this Agreement and the other Loan Documents is (or are) authorized to execute this Agreement and the other Loan·oocuments on Borrower's behalf, and Lender may conclusively rely on such certification until it receives notice in writing to the contrary. 3. Conditions Precedent. , a. Term Loan. The obligation of Lender to make the Term Loan Is subject to the following conditions precedent: (1) Lender shall have received a certified copy of all action taken by Borrower to authorize the execution, delivery, and performance of this Agreement and the other Loan Documents required by this Section and the borrowing by it hereunder, and such other records ~s Lender shall reasbnably require. (2) Borrower shall have granted to Lender a perfected first-priority security interest in all of its presently owned and hereafter acquired personal property and fixtures, including all equipment, fixtures, inventory, accounts, general intangibles, chattel paper, documents, instruments, deposit accounts, letter-of-credit rights, and investment property, and all proceeds of the foregoing (each as defined In the UCC), upon the terms and conditions set forth in a security agreement with terms and conditions satisfactory to Lender. (3) Each Guarantor shall have executed and delivered to Lender Its guaranty of all Obligations, with terms and conditions satisfactory to Lender. 4 IEXHIBIT "B 11 ( ..J (4) Borrower shall have paid to Lender a non-refundable administrative fee (including, but not limited to,guaranty premium, UCC filing fees, etc.) of $1,164.00. b. Conditions for Lender's Benefit. These conditions precedent exist solely for Lender's benefit, and Lender in its sole discretion shall determine whether they have been satisfied. 4. Representations and Warranties. a. To induce Lender to enter Into this Agreement and make the Term Loan, Borrower hereby represents and wc;1rrants to Lender that: (1) Corporate Existence, Power and Authority. Borrower is a corporation duly incorporated, validly existing, and in good standing under the Laws of California and Is duly qualified to transact business or own real property in each state or other jurisdiction in which any material part of its assets are located or in which it conducts any important or material part of its business. Borrower has corporate power to make this Agreement and to borrow hereunder. The making and performance by Borrower of the Loan Documents have been duly authorized by all necessary corporate action. (2) Obligations Absolute. The Loan Documents are the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with their respective terms. Borrower's obligation to repay the Loan, together with all interest accrued thereon and other charges, is absolute and unconditional, and there exists no right of set-off or recoupment, counterclaim, cross-claim or defense of any nature whatsoever to payment of performance of the obligations. (3) No Violation. Borrower's execution, delivery and performance of the Loan Documents do not and shall hot (A) violate any Law or Requirement to which Borrower is subject, (B) conflict with or result in a breach of Borrower's Articles of Organization or Bylaws or any agreement 9r instrument to which Borrower is a party or by which It or its assets are bound, or (C) result in the creation or imposition of any Security Interest upon any ofBorrower's present or future assets, other than Security Interests in favor of Lender. (4) Financial Condition. Th.e financial statements (including balance sheets, statements of income and retained earnings, statements of cash flows, and, with respect to individuals, personal financial statements) of Borrower, its Subsidiaries, and the Guarantors that have been furnished to Lender are complete and correct and fairly represent the financial condition of Borrower, its Subsidiaries and the Guarantors as at the dates of said financial statements and the results of their operations and financial activities for the periods ending on said dates, There is no material· indebtedness not disclosed by, or rese1ved against, in said financial statements. At the present time there are no material unrealized or anticipated losses from any unfavorable commitments of Borrower, any Subsidiary or any Guarantor. Since the date of the latest of such financial statements there has been no Material Adverse Change. (5) Litigation. There are not suits or proceedings pending or (to Borrower's knowledge) threatened against or affecting Borrower, any Subsidiary or any Guarantor that, if adversely determined, would directly or Indirectly 5 ... ·•'···-··;",, • •,,, cause a Material Adverse Change. There are no proceedings by or before any Governmental Unit pending or (to Borrower's knowledge) threatened against Borrower, any Subsidiary or any Guarantor. b. Reaffirmation and Continuing Nature of Representations and Warranties, These representations and warranties are of a continuing nature and shall survive the termination of this Agreement and full payment and performance of the Obligations, 5, Covenants. So long as the Term Loan shall be outsta,nding and until the full payment and performance of all Obligations, Borrower agrees that, unless Lender shall otherwise consent in writing: a. Financial and Other Information. Borrower shall furnish Lender: (1) Within one hundred twenty (120) days after the end of each fiscal year of Borrower, copies of balance sheets of Borrower and its Subsidiaries, as at the close of such fiscal year, and statements of income and retained earnings and statements of cash flows of Borrower and its Subsidiaries for such year, certified by independent certified accountants selected by Borrower and satisfactory to Lender; (2) Within thirty (30) days after the end of each of the first three quarters of eacl1 fiscal year of Borrower, copies of balance sheets of Borrower and its Subsidiaries as at the end of such quarter, and statements of income and retained e_arnings and statements of cash flows of Borrower and its Subsidiaries for the period from the beginning of the fiscal year to the end of such quarter, in each case certified by an authorized financial or · accounting officer of Borrower; (3) Within one hundred twenty (120) days after the end of each fiscal year of Borrower, a certificate of such independent public accountants, and within thirty (30) days after the end of each quarter of each fiscal year a certificate of an authorized financial or a9counting officer of Borrower, in each case stating whether Borrower is in compliance with the financial covenants set forth in§ 5(b) though (g) hereof, and whether any Event of Default or any event that with notice, lapse of time or otherwise would become an Event of Default has continued or is continuing; (4) Within one hundred twenty (120) days after the end of each tax year, copies of Borrower's and each