REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT, is made this 2nd day of January,
2001, by and between Nevtah Capital Management Corporation (the "Borrower"), a
Nevada corporation, and ▇▇▇▇▇▇ Kesonen ("Lender"), a director and officer of the
Borrower.
WHEREAS, Borrower is desirous of borrowing sums over a two-year period up
to an aggregate amount of Five-Hundred Thousand Dollars ($500,000) from Lender
in the form of a revolving line of credit;
WHEREAS, Lender is willing to provide the above-described loans to Borrower
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein contained, the parties agree as follows:
1. Terms of Revolving Credit. Subject to the terms and conditions of this
Agreement, Lender hereby agrees to establish a revolving credit facility
(hereinafter, the "Revolving Credit") in the maximum amount of Five-Hundred
Thousand Dollars ($500,000) in favor of Borrower on the following terms and
conditions:
a. The term of the Revolving Credit shall begin on the date hereof and
shall end on January 1, 2003 (the "Termination Date").
b. Concurrently herewith, Borrower shall execute a Revolving Credit
Master Note in favor of Lender in the face amount of $500,000 (the "Note"),
payable on or before the first day of January, 2011, in the form attached hereto
as Exhibit A and incorporated by reference herein.
c. Advances under the Revolving Credit may be made, in the sole and
absolute discretion of Lender in accordance with the terms of this Agreement, at
any time prior to the Termination Date upon receipt by Lender of written request
therefor signed by Borrower; at no time shall the aggregate obligation of
Borrower to Lender exceed Five-Hundred Thousand Dollars ($500,000). All advances
under the Revolving Credit shall require the prior written approval of ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ who are both directors of Borrower. Borrower may
at any time prior to the Termination Date repay all or any part of said loans
under the Revolving Credit and subsequently receive further advances, consistent
with the terms and conditions hereof.
d. Principal amounts due under the Revolving Credit shall bear
interest and shall be payable in accordance with the terms of the Note.
e. Borrower may prepay under the Note at any time in any amount
without premium or penalty.
f. Amounts borrowed under the Revolving Credit shall be used for the
purposes specified in Section 8.a(2) of this Agreement.
2. Fees and Expenses. Borrower agrees to pay for all costs and expenses
incurred in connection with this Revolving Credit (including legal expenses
incurred in the preparation of this Agreement, the Note, and other documents
(the "Document Preparation Fees")) and the making, protection, enforcement and
collection of all amounts advanced under the Revolving Credit. These costs are
to include the fees of counsel at any time now or hereafter incurred by Lender,
and all costs and expenses incurred in enforcing the rights of Lender under this
Agreement whether or not upon the occurrence of any Event of Default
(hereinafter defined).
3. Promises to Pay. Borrower promises to pay to Lender when due, whether by
normal maturity, acceleration or otherwise, the entire outstanding principal
amount of the Revolving Credit, together with interest, and all other amounts
payable by Borrower to Lender hereunder, including costs of collection.
4. Not used in this Agreement.
5. Events of Default; Acceleration. Any or all of the liabilities of
Borrower to the Lender in connection with the Revolving Credit shall, at the
option of Lender, be immediately due and payable upon the occurrence of any of
the following events of default (each of which shall be hereinafter referred to
as an "Event of Default"): (a) default in the payment, when due or payable, of
any obligation of Borrower under this Agreement or the Note; (b) failure of
Borrower after request by Lender to permit the inspection of books or records of
Borrower; (c) issuance of any injunction or of an attachment or judgment against
any property of Borrower which is not discharged within ten (10) days after
issuance; (d) the insolvency of Borrower, or the filing of any bankruptcy,
reorganization, debt arrangement or other proceeding or case against Borrower
under any bankruptcy or insolvency law or commencement of any dissolution or
liquidation proceeding against Borrower, any of which is either consented to or
acquiesced in by Borrower or remains undismissed for thirty (30) days after the
date of entry or the commencement by Borrower of a voluntary case under the
federal bankruptcy laws or any state insolvency or similar laws, or the consent
by Borrower to the appointment of a receiver, liquidator, assignee, trustee,
custodian or similar official for Borrower or any of its property, as the case
may be, or the making by Borrower of any assignment for the benefit of creditors
or the failure by Borrower generally to pay Borrower's debts, as the case may
be, as they become due; (e) a change in the condition or affairs (financial or
otherwise) of Borrower which in the opinion of the Lender increases Lender's
risk in connection with the Revolving Credit or impairs the prospect of timely
payment of the Revolving Credit; or (f) default in the performance of any
obligation, covenant or agreement contained or referred to herein or in the
Note.
6. Waivers. Borrower waives demand, notice, protest, notice of acceptance
of this Agreement, notice of loans made, credit extended, and all other action
taken in reliance hereon and all other demands and notices of any type.
8. Borrower's Representations and Warranties. To induce Lender to enter
into this Agreement, Borrower represents and warrants to Lender as follows:
a. Existence; Power; Authority. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada. Borrower is duly and validly authorized by all necessary corporation
action and has full power and authority to enter into this Agreement, to make
the borrowings hereunder, to execute and deliver this Agreement and the Note,
and to perform and comply with the terms, conditions, and agreements set forth
herein and therein.
b. Binding Agreement. This Agreement constitutes, and the Note, when
made and delivered for value received will constitute, the valid and legally
binding obligations of Borrower, enforceable in accordance with their respective
terms.
c. Litigation. There are no proceedings pending or, to the knowledge
of Borrower, threatened before any court, administrative body or other tribunal
which could adversely affect the financial condition or operations of Borrower
or which relate to any of the matters described in clauses (e) and (h) of
Section 5 hereof.
d. No Conflicting Agreements. The execution of and performance under
this Agreement and the Note and the borrowings hereunder and thereunder by the
Borrower will not violate: (A) any statute, regulation or other provision of
law; (B) any order of a court or instrumentality of government having
jurisdiction over the Borrower; (C) any provision of the Memorandum and Articles
of Association of the Borrower; and (D) any indenture, contract, agreement or
other instrument to which the Borrower is a party or by which the Borrower or
any of its property is bound. There are no provisions of any existing mortgage,
deed of trust, contract, lease, or other agreement of any kind binding on the
Borrower or affecting its business or property which would conflict with or in
any way restrict or prohibit the execution, delivery or performance of the terms
of this Agreement or the Note.
e. Information. All information, whether provided orally or contained
in any financial statement, report, certificate, opinion, letter or any other
written document, given to Lender by Borrower, or by any other person in
connection with the Revolving Credit at any time during the term hereof is and
shall constitute a representation and warranty by Borrower hereunder. Borrower
hereby represents and warrants that all such information is in all material
respects true, complete and accurate, and does not and shall not fail to state
any material fact or any fact necessary to make such information not misleading.
f. Assets and Properties. Borrower has good and marketable title to
all of its assets and properties, free and clear of any security interests,
liens or encumbrances of any type or kind whatsoever.
g. Taxes. All taxes, assessments, impositions and levies of any type
or kind imposed upon Borrower and its properties, operations, and income
("Taxes") have been paid and discharged prior to the date when any interest or
penalty would accrue for the nonpayment thereof, except for those being
contested in good faith and by appropriate proceedings by Borrower.
h. Violation of Laws, etc. Neither the consummation of this Agreement
nor the use, directly or indirectly, of all or any portion of the proceeds of
the Revolving Credit will violate or result in a violation of any provision of
any applicable law or of any applicable order of, or restriction imposed by, any
applicable governmental or regulatory entity or authority.
8. Borrower's Covenants. Until all obligations and liabilities of Borrower
to Lender under this Agreement and the Note have been paid and performed in
full, Borrower shall keep and perform the following covenants, and does hereby
covenant, agree and promise to Lender as follows:
a. General Affirmative Covenants. Borrower shall, at all times during
the term of the Revolving Credit and at all times that any advances hereunder
are outstanding, do the following:
(1) Use of Proceeds. Use any and all amounts advanced under this
Agreement solely for the working capital needs of Borrower.
(2) Information. Furnish to Lender, promptly from time to time,
such information concerning the operations, business, affairs, and financial
condition of the Borrower as Lender may reasonably request.
(3) Books, Records, and Inspections. At all times (a) maintain
complete and accurate books and records and (b) permit any person designated by
Lender to enter, examine, audit, and inspect all properties, books, operations
and records of Borrower at any reasonable time and from time to time wherever
such properties, books, and records are located.
(4) Litigation. Promptly notify Lender of any litigation
instituted or threatened against Borrower and of the entry of any judgment or
lien against any of Borrower's assets or properties.
(5) Compliance with Laws. At all times comply with all applicable
laws and orders of any court or other governmental authority, and all
regulations and standards of any applicable regulatory entity.
(6) Maintain Existence. At all times maintain in full force and
effect its corporate existence, rights, privileges, and qualify and remain
qualified in all jurisdictions where qualification is required.
(7) Taxes. Except to the extent that the validity or amount
thereof is being contested in good faith and by appropriate proceedings, pay and
discharge all Taxes prior to the date when any interest or penalty would accrue
for nonpayment thereof.
(8) Events of Default. Promptly inform Lender of the occurrence
of any Event of Default or the occurrence of any condition, event or act which,
with the giving of notice or lapse of time or both, would constitute an Event of
Default hereunder.
b. General Negative Covenants. Without the prior written consent of
Lender, Borrower shall not at any time during the term of the Revolving Credit:
(1) Guaranties. Indorse, guaranty or become surety for the
obligation of any person, firm or corporation, except that Borrower may indorse
checks or other instruments for deposit or collection in the ordinary course of
business.
(2) Transfers and Encumbrances. Sell, sell and leaseback,
mortgage, pledge or otherwise encumber or dispose of any of Borrower's property,
real or personal, now owned or hereafter acquired, or permit any lien or
security interest to exist thereon, except for Permitted Liens.
9. Confession of Judgment; Jurisdiction and Venue. Upon the occurrence of
any Event of Default hereunder and following acceleration of the Revolving
Credit, Borrower authorizes and empowers any attorney admitted to practice
before any court of record in the United States to appear on behalf of Borrower
and confess judgment on behalf of the Borrower against Borrower in the full
amount due under this Agreement plus attorneys' fees of fifteen percent (15%) of
such amount. (Notwithstanding the amount of any such judgment, Lender agrees to
use reasonable efforts to obtain legal counsel who will charge Lender for
services on an hourly basis, at his or her customary hourly rate(s) and only for
time expended and actual expenses incurred, and Lender agrees not to enforce a
judgment for legal fees against Borrower in an amount in excess of the fees and
expenses actually charged to Lender for services rendered by, and for actual
expenses incurred by its counsel in connection with such confession of judgment
and the collection of all amounts owed by Borrower to Lender.) In any action
brought by Lender under this Agreement, Borrower consents to the exercise of
personal jurisdiction over it by the courts of the State of Colorado and agrees
that venue shall be proper in any County of the State of Colorado or in the City
of Denver, in addition to any other court where venue may be proper. Borrower
waives and releases, to the extent permitted by law, all errors and all rights
of exemption, appeal, stay of execution, inquisition and extension upon any levy
on real estate or personal property to which the Borrower may otherwise be
entitled under the laws of the United States of America now in force or which
may hereafter be passed, as well as the benefit of any or every statute,
ordinance, or rule of court which may be lawfully waived conferring upon
Borrower any right or privilege of exemption, stay of exercise, or supplementary
proceedings, or other relief from the enforcement or immediate enforcement of a
judgment or related proceedings on a judgment. The authority and power to appear
for and enter judgment against Borrower shall be exercisable concurrently in one
or more jurisdictions and shall not be exhausted or extinguished by one or more
exercises thereof, or by any imperfect exercise thereof or by any judgment
entered pursuant thereto. Such authority and power may be exercised on one or
more occasions, from time to time, in the same or different jurisdictions, as
often as Lender shall deem necessary or desirable, for all of which this
Agreement shall be sufficient warrant.
10. Notices. All notices, consents, approvals, requests, demands and other
communications which are required or may be given hereunder shall be in writing
and shall be duly given if personally delivered, sent by telefax, telegram or
overnight courier or posted by U.S. registered or certified mail, return receipt
requested, postage prepaid and addressed to the other parties at the addresses
set forth below.
Lender
▇▇▇▇▇▇ Kesonen
-----------------------------
-----------------------------
Borrower:
Nevtah Capital Management Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may from time to time change the address to which notices to it
are to be sent by giving notice of such change to the other parties in the
manner set forth herein. Notices shall be deemed given on the next business day
following the day such notice is posted or sent by courier in the manner
described above, and if sent by telefax or telegram, on the date such notice is
sent, and if delivered in person, on the date so delivered. Any notice period
shall commence on the day such notice is deemed given. For the purposes of this
Agreement, the term "business day" shall include all days other than Saturdays,
Sundays and federal banking holidays.
11. Miscellaneous.
a. No Waiver. No failure or delay of any party hereto to exercise any
right given to it hereunder, or to insist on strict compliance with any
provision hereunder, shall constitute a waiver of such provision or of any other
provision hereof, or a waiver of any breach, and no waiver of any provision or
breach of any provision shall constitute a waiver of any other provision or
breach or of any subsequent breach of the same provision. No waiver shall be
effective unless in writing and signed by the party having the right to waive
such provision.
b. Survival. All covenants, agreements, representations and warranties
made herein and in any other instruments or documents delivered pursuant hereto
shall survive the execution and delivery of this Agreement and shall continue in
full force and effect so long as any of the amounts due hereunder are
outstanding and unpaid.
c. Entire Agreement; Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof, superseding all prior negotiations, correspondence, understandings and
agreements, if any, between the parties; no amendment or modification of this
Agreement shall be binding on the parties unless made in writing and duly
executed by all parties. There are no oral or implied agreements and no oral or
implied warranties between the parties hereto other than those expressed herein.
d. Binding Effect; Assignability. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. This Agreement shall not be assignable by the Borrower without the
prior written consent of Lender.
e. Headings. The section and other headings in this Agreement are for
reference only and shall not limit or otherwise affect any of the terms hereof.
f. Further Assurances and Corrective Instruments. The parties hereto
agree to execute, acknowledge, seal and deliver, after the date hereof, without
additional consideration, such further assurances, instruments and documents,
and to take such further actions, as the parties hereto shall request in order
to fulfill the intent of this Agreement and the transactions contemplated
hereby.
g. Severability. Any provision in this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
h. Governing Law. This Agreement is made in and shall be governed by
and construed and interpreted in accordance with this laws of the State of
Colorado.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement under seal, with the intention of making it a sealed instrument, as of
the day and year first above written.
ATTEST: BORROWER:
NEVTAH CAPITAL MANAGEMENT
CORPORATION
By: (SEAL)
_________________________________ ------------------------------
_____________________, Secretary (Vice) President
LENDER:
------------------------------
▇▇▇▇▇▇ KESONEN
EXHIBIT A
REVOLVING CREDIT MASTER NOTE
$500,000 Denver, Colorado
January 2, 2001
FOR VALUE RECEIVED, the undersigned (hereinafter, the "Borrower") promises
to pay to the order of ▇▇▇▇▇▇ Kesonen (hereinafter, "Lender") at Lender's
offices at ___________________________ or at such other place as the holder of
this Note may from time to time designate, in lawful money of the United States
of America, the principal sum of Five-Hundred Thousand Dollars ($500,000) (or so
much thereof as has been advanced or re-advanced hereunder from time to time)
together with interest thereon at the rate and upon the terms hereinafter
provided. The following terms shall apply to this Note.
1. Interest Rate. For the period from the date of this Note until the date
on which the entire principal balance outstanding is paid in full (at stated
maturity, on acceleration or otherwise), interest shall accrue on the principal
balance from time to time outstanding at the rate of eight percent (8%) per
annum.
2. Repayment. Interest accrued hereunder on the outstanding principal
amount shall be paid monthly in arrears on the first day of each month,
beginning on the first day of the month which immediately follows the first
month in which there is an outstanding balance of principal under this Note.
The entire amount of principal outstanding on January 1, 2011, together
with all accrued unpaid interest thereon at the rates hereinabove specified,
shall be paid on or before the tenth day of January 2011 (the "Repayment Date").
The entire unpaid balance of principal, together with all accrued and
unpaid interest thereon, shall be paid in full on or before the Repayment Date.
3. Calculation of Interest. Interest shall be calculated on the basis of a
three hundred sixty (360) days per year factor applied to the actual days on
which there exists an unpaid principal balance. Interest shall be calculated by
Lender and billed to Borrower for each appropriate period; provided, however,
that failure of Lender to ▇▇▇▇ Borrower shall not relieve Borrower's payment
obligations hereunder.
4. Application of Payments. All payments made hereunder shall be applied
first to late penalties or other sums owing the holder, next to accrued and
unpaid interest, and then to principal.
5. Optional Prepayment. Borrower may prepay this Note in whole or in part
at any time or from time to time without penalty or additional interest.
6. Event of Default. As used herein the term "Event of Default" shall mean
(a) a failure to make any payment of any amount required to be paid pursuant to
this Note on the date such payment is due under this Note; and (b) an Event of
Default as such term is defined under the Revolving Credit Loan Agreement
between the parties of even date herewith (the "Loan Agreement").
7. Late Payment Penalty. Should any payment of interest or principal and
interest due hereunder be received by the holder of this Note more than ten (10)
days after its due date, Borrower shall pay a late payment penalty equal to five
percent (5%) of the amount overdue for each month outstanding until paid,
beginning with the due date of the late payment.
8. Acceleration Upon Event of Default. Upon the occurrence of an Event of
Default, Lender may, at its option, in its sole and absolute discretion and
without notice or demand, declare the entire unpaid balance of principal plus
accrued interest and any other sums payable hereunder immediately due and
payable.
9. Confession of Judgment. Upon the occurrence of any Event of Default,
Borrower authorizes and empowers any attorney admitted to practice before any
court of record in the United States to appear on behalf of Borrower and confess
judgment on behalf of Borrower against Borrower in the full amount due under
this Agreement plus attorneys' fees of fifteen percent (15%) of such amount.
(Notwithstanding the amount of any such judgment, Lender agrees by accepting
this Note to use reasonable efforts to obtain legal counsel who will charge
Lender for services on an hourly basis, at his or her customary hourly rate(s)
and only for time expended and actual expenses incurred, and Lender agrees not
to enforce a judgment for legal fees against Borrower in an amount in excess of
the fees and expenses actually charged to Lender for services rendered by, and
for actual expenses incurred by its counsel in connection with such confession
of judgment and the collection of all amounts owed by Borrower to Lender.) In
any action brought by Lender under this Agreement, Borrower consents to the
exercise of personal jurisdiction over it by the courts of the State of Colorado
and agrees that venue shall be proper in any County of the State of Colorado or
in the City and County of Denver, in addition to any other court where venue may
be proper. Borrower waives and releases, to the extent permitted by law, all
errors and all rights of exemption, appeal, stay of execution, inquisition and
extension upon any levy on real estate or personal property to which Borrower
may otherwise be entitled under the laws of the United States of America now in
force or which may hereafter be passed, as well as the benefit of any or every
statute, ordinance, or rule of court which may be lawfully waived conferring
upon Borrower any right or privilege of exemption, stay of exercise, or
supplementary proceedings, or other relief from the enforcement or immediate
enforcement of a judgment or related proceedings on a judgment. The authority
and power to appear for and enter judgment against Borrower shall be exercisable
concurrently in one or more jurisdictions and shall not be exhausted or
extinguished by one or more exercises thereof, or by any imperfect exercise
thereof or by any judgment entered pursuant thereto. Such authority and power
may be exercised on one or more occasions, from time to time, in the same or
different jurisdictions, as often as Lender shall deem necessary or desirable,
for all of which this Agreement shall be sufficient warrant.
10. Expenses of Collection. Should this Note be referred to an attorney for
collection, whether or not judgment has been confessed or suit has been filed,
Borrower shall pay all of Lender's actual costs, fees (including reasonable
attorneys' fees) and expenses resulting from such referral.
11. Waiver of Protest. Borrower hereby waives presentment, notice of
dishonor and protest.
12. Commercial Loan. Borrower acknowledges and warrants that this Note
evidences a "commercial loan" and that the proceeds of the Note will be used for
the sole purpose of supplying the working capital required for Borrower's
business purposes.
13. Waiver. No failure or delay by the holder hereof to insist upon the
strict performance of any term, provision, or agreement of this Note, or to
exercise any right, power or remedy consequent upon a breach thereof, shall
constitute a waiver of any such term, provision or agreement or of any such
breach, or preclude the holder hereof from exercising any such right, power or
remedy at any later time or times. By accepting payment after the due date of
any amount payable under this Note, the holder hereof shall not be deemed to
have waived the right either to require prompt payment when due of all other
amounts due under this Note, or to declare a default hereunder.
14. Notices. All notices, consents, approvals, requests, demands and other
communications which are required or may be given hereunder shall be in writing
and shall be duly given if personally delivered, sent by telefax, telegram or
overnight courier or posted by U.S. registered or certified mail, return receipt
requested, postage prepaid and addressed to the other parties at the addresses
set forth below.
If to the holder:
▇▇▇▇▇▇ Kesonen
----------------------------
----------------------------
If to Borrower:
Nevtah Capital Management Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party may from time to time change the address to which notices to it
are to be sent by giving notice of such change to the other parties in the
manner set forth herein. Notices shall be deemed given on the next business day
following the day such notice is posted or sent by courier in the manner
described above, and if sent by telefax or telegram, on the date such notice is
sent, and if delivered in person, on the date so delivered. Any notice period
shall commence on the day such notice is deemed given. For the purposes of this
Agreement, the term "business day" shall include all days other than Saturdays,
Sundays and federal banking holidays.
15. Headings. The section headings in this Note are for reference only, and
shall not limit or otherwise affect any of the terms hereof.
16. Choice of Law. This Note is executed in and shall be governed,
construed and enforced in accordance with the laws of the State of Colorado.
17. Binding Effect. This Note shall be binding upon Borrower and its
successors and assigns.
IN WITNESS WHEREOF, the undersigned has executed this Note under seal, with
the intention that it be a sealed instrument on the day and year first above
written.
ATTEST: BORROWER:
Nevtah Capital Management Corporation
By: (SEAL)
_________________________________ --------------------------------
______________________, Secretary (Vice) President