REVOLVING CREDIT NOTE (for Revolving Credit Agreement)
Exhibit 10.1
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For
Bank Use Only
Due:
March 31, 2023
Obligor
#: 0028586166 Obligation #:
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(for
Revolving Credit Agreement)
$10,000,000.00
Dated as of
September 30, 2021
FOR
VALUE RECEIVED, PARK CITY GROUP, INC. (the "Borrower"), promises to pay to the order
of U.S. Bank National Association (the "Bank") in accordance with the terms of
this Revolving Credit Note (this "Note"), the principal sum of Ten Million
and NO/100 Dollars ($10,000,000.00), payable March 31, 2023 (the
"Maturity
Date").
Interest. Interest on each advance
hereunder shall accrue at an annual rate equal to 1.75% plus the
one-month LIBOR rate quoted by Bank from Reuters Screen LIBOR01
Page or any successor thereto which may be designated by Bank as
provided below, which shall be that one-month LIBOR rate in effect
two New York Banking Days prior to the Rate Adjustment Date,
adjusted for any reserve requirement and any subsequent costs
arising from a change in government regulation, such rate to be
reset monthly on each Rate Adjustment Date. The term "New York Banking Day" means any date
(other than a Saturday or Sunday) on which commercial banks are
open for business in New York, New York. The term "Rate Adjustment Date" means the 1st day
of each month. If the initial advance under this Note occurs other
than on the Rate Adjustment Date, the initial one-month LIBOR rate
shall be that one- month LIBOR rate in effect two New York Banking
Days prior to the later of (a) the immediately preceding Rate
Adjustment Date and (b) the closing date of the loan, which rate
plus the percentage described above shall be in effect until the
next Rate Adjustment Date. If Bank has determined that (a)(i) the
administrator, or any relevant agency or authority for such
administrator, of the rate index described above ("LIBOR") (or any substitute index which
replaces LIBOR (LIBOR or such replacement, the "Benchmark")) has announced that such
Benchmark will no longer be provided, (ii) any relevant agency or
authority has announced that such Benchmark is no longer
representative, or (iii) any similar circumstance exists such that
such Benchmark has become unavailable or ceased to exist, or (b)
similar loans are being documented with a replacement rate to such
Benchmark, Bank will (x) replace such Benchmark with a replacement
rate or (y) if any such circumstance applies to fewer than all
tenors of such Benchmark used for determining an interest period
hereunder, discontinue the availability of the affected interest
periods. In the case of LIBOR, (a) for any advance hereunder where
the rate is reset daily, such replacement rate will be Daily Simple
SOFR, plus the adjustment described below, and (b) for any advance
hereunder where the rate is reset at monthly or longer intervals,
such replacement rate will be Term SOFR, plus the adjustment
described below; provided that if Bank determines in its sole
discretion that (i) Term SOFR is not available for the applicable
advance at the time of such replacement or (ii) the administration
of Term SOFR is not administratively feasible for Bank, then such
replacement rate will be Daily Simple SOFR, plus the adjustment
described below. For purposes of this Note, (a) "SOFR" means the secured overnight
financing rate which is published by the Board of Governors of the
Federal Reserve System (the "Board") and available at
▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇; (b) "Term
SOFR" means a forward-looking term rate based on SOFR and
recommended by the Board; and (c) "Daily Simple SOFR" means a daily rate
based on SOFR and determined by Bank in accordance with the
conventions for such rate. In each case, Bank will add an
adjustment to Term SOFR or Daily Simple SOFR that is selected or
recommended by the Board. In connection with the selection and
implementation of any such replacement rate, Bank may make any
technical, administrative or operational changes that Bank decides
may be appropriate to reflect the adoption and implementation of
such replacement rate. Without limitation of the foregoing, in the
case of a transition to Daily Simple SOFR, Bank will remove any
option to select another rate that may change or is reset on a
daily basis, including, without limitation, Bank's prime rate. Bank
does not warrant or accept any responsibility for the
administration or submission of, or any other matter related to,
LIBOR or with respect to any alternative or successor rate thereto,
or replacement rate thereof, including without limitation whether
any such alternative, successor or replacement rate will have the
same value as, or be economically equivalent to, LIBOR. Bank's
internal records of applicable interest rates shall be
determinative in the absence of manifest error.
Notwithstanding
anything to the contrary in this Note, for purposes of determining
any rate of interest which is based upon a stated formula, neither
the interest rate nor the index or other referenced rate upon which
the interest rate is based shall at any time be less than
0%.
Payment Schedule. Interest is payable
beginning October 31, 2021, and on the last day of each consecutive
month thereafter, plus a final interest payment with the final
payment of principal.
Principal is
payable on March 31, 2023, the maturity date.
Interest will be
computed for the actual number of days principal is unpaid, using a
daily factor obtained by dividing the stated interest rate by
360.
Subject
to applicable law, if any payment is not made on or before its due
date and within any applicable statutory grace period, Bank may
collect a delinquency charge of 5.0% of the unpaid amount.
Collection of the late payment fee shall not be deemed to be a
waiver of Bank's right to declare a default hereunder.
-1-
Notwithstanding any
provision of this Note to the contrary, upon any default or at any
time during the continuation thereof (including failure to pay upon
maturity), Bank may, at its option and subject to applicable law,
(a) increase the interest rate on this Note to a rate of 5% per
annum plus the interest rate otherwise payable under this Note and
(b) until Bank elects to accelerate payment of this Note according
to the default section, increase the required periodic payments
under this Note accordingly. Notwithstanding the foregoing and
subject to applicable law, upon the occurrence of a default by
Borrower or any guarantor involving bankruptcy, insolvency,
receivership proceedings or an assignment for the benefit of
creditors, the interest rate on this Note shall automatically
increase to a rate of 5% per annum plus the rate otherwise payable
under this Note.
In no
event will the interest rate hereunder exceed that permitted by
applicable law. If any interest or other charge is finally
determined by a court of competent jurisdiction to exceed the
maximum amount permitted by law, the interest or charge shall be
reduced to the maximum permitted by law, and Bank may credit any
excess amount previously collected against the balance due or
refund the amount to Borrower.
Without
affecting the liability of any Borrower, endorser, surety or
guarantor, Bank may, without notice, renew or extend the time for
payment, accept partial payments, release or impair any collateral
security for the payment of this Note, or agree not to sue any
party liable on it.
This
Revolving Credit Note constitutes this Note issued under a
Revolving Credit Agreement dated as of the date hereof between
Borrower and Bank, to which Agreement reference is hereby made for
a statement of the terms and conditions under which the loan
evidenced hereby was made and a description of the terms and
conditions upon which the maturity of this Note may be accelerated,
and for a description of the collateral securing this Note.
Capitalized terms used in this Note not otherwise defined herein
shall have the meanings ascribed to them in the Revolving Credit
Agreement.
Without
notice to or consent of Borrower or any guarantor, Bank may create
electronic images of any Loan Documents and destroy paper originals
of any such imaged documents. Such images have the same legal force
and effect as the paper originals and are enforceable against
Borrower and any other parties thereto. Bank may convert any Loan
Document into a "transferrable record" as such term is defined
under, and to the extent permitted by, applicable law, with the
image of such instrument in Bank's possession constituting an
"authoritative copy." If Bank agrees, in its sole discretion, to
accept delivery by telecopy or PDF of an executed counterpart of a
signature page of any Loan Document or other document required to
be delivered under the Loan Documents, such delivery will be valid
and effective as delivery of an original manually executed
counterpart of such document for all purposes. If Bank agrees, in
its sole discretion, to accept any electronic signatures of any
Loan Document or other document required to be delivered under the
Loan Documents, the words "execution," "signed," and "signature,"
and words of like import, in or referring to any document so signed
will be deemed to include electronic signatures and/or the keeping
of records in electronic form, which will be of the same legal
effect, validity and enforceability as a manually executed
signature and/or the use of a paper-based recordkeeping system, to
the extent and as provided for in any applicable law. Bank may rely
on any such electronic signatures without further
inquiry.
All
documents attached hereto, including any appendices, schedules,
riders, and exhibits to this Note, are hereby expressly
incorporated by reference.
Bank's
acceptance of an assumption of the Obligations under this Note, and
any release of Borrower (if any) in connection with such
assumption, does not constitute a novation.
Borrower hereby
acknowledges the receipt of a copy of this Note.
BORROWER:
PARK
CITY GROUP, INC.
a/an
Nevada
Corporation
By:/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name
and
Title:
▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial
Officer
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REVOLVING
CREDIT AGREEMENT
This
Revolving Credit Agreement (this "Agreement") is made and entered into by
and between PARK CITY GROUP, INC. (the "Borrower") and U.S. Bank National
Association (the "Bank") as
of the date set forth on the last page of this
Agreement.
ARTICLE
I. LOANS
1.1 Revolving Credit Loans. From time to
time prior to March 31, 2023 (the "Maturity Date") or the earlier
termination hereof, Borrower may borrow from Bank for working
capital purposes an aggregate amount outstanding at any one time of
the lesser of (i)
$10,000,000.00 (the
"Loan Amount"), less letters
of credit issued by Bank, or (ii) if applicable, the Borrowing Base (defined below). All
revolving loans hereunder will be evidenced by a single promissory
note of Borrower payable to the order of Bank in the principal
amount of the Loan Amount (the "Note"). Although the Note will be
expressed to be payable in the full Loan Amount, Borrower will be
obligated to pay only the amounts actually disbursed hereunder,
together with accrued interest on the outstanding balance at the
rates and on the dates specified therein and such other charges
provided for herein.
1.2
Borrowing Base. Not
applicable.
1.3 Advances After Maturity or In Excess of Loan
Amount. Bank shall have no obligation whatsoever, and Bank
has no present intention, to make any advance after the Maturity
Date or which would cause the amount outstanding under this
Agreement to exceed the Loan Amount or any other limitations on
advances stated in this Agreement. Notwithstanding the foregoing,
Bank may from time to time, in its sole and absolute discretion,
make an advance after the Maturity Date or which would cause the
amount of advances outstanding under this Agreement to exceed the
maximum amount which may be outstanding under this Agreement.
Borrower is and shall be and remain unconditionally liable to Bank
for the amount of all such advances. Borrower shall immediately pay
to Bank, without request and in any event upon Bank’s demand,
the amount of any advances made after the Maturity Date or in
excess of the maximum amount which maybe outstanding hereunder,
together with interest on the principal amount of such excess
advances, for so long as such advances are outstanding, at the
highest interest rate from time to time in effect for such
advances. Any such advances shall not be deemed an extension of
this Agreement nor an increase in the amount available for
borrowing under this Agreement.
1.4 Advances and Paying Procedure. Bank is
authorized and directed to credit any of Borrower's accounts with
Bank, any account(s) of Borrower maintained at another institution
and/or any other account(s) designated by Borrower for all loans
made hereunder, and Bank is authorized to debit any account into
which loans made hereunder have been deposited, or any other
account of Borrower with Bank, for the amount of any principal,
interest, fees, expenses and other amounts payable under the Note,
under this Agreement or under any other Loan Document, as and when
such amounts become due and payable. Payments due under the Note
and other Loan Documents will be made in lawful money of the United
States. All payments may be applied by Bank, in whole or in part,
to principal, interest and other amounts due or to become due under
the Loan Documents in any order which Bank elects. If, upon any
request by Borrower to Bank to issue a wire transfer, there is an
inconsistency between the name of the recipient of the wire and its
identification number as specified by Borrower, Bank may, without
liability, transmit the payment via wire based solely upon the
identification number. Requests for loan advances, as well as
directions for payment from ▇▇▇▇▇▇▇▇’s account(s), may be
given orally or in writing. Bank may, but need not, require oral
requests to be confirmed in writing. Each advance shall be
conclusively deemed to have been made at the request of and for the
benefit of Borrower (i) when credited to any deposit account of
Borrower maintained with Bank or any other institution, or (ii)
when advanced in accordance with the instructions of an authorized
person.
1.5
Closing Fee. Not
applicable.
1.6
Loan Facility Fee. Not
applicable.
1.7
Deposit Account Requirements. Not
applicable.
1.8 Expenses and Attorneys' Fees. Upon
demand, Borrower will immediately reimburse Bank and any purchaser
of some or all of the obligations of Borrower under the Note (the
"Purchaser") for all
reasonable attorneys' fees and all other costs, fees, taxes and
out- of-pocket disbursements incurred by Bank or any Purchaser in
connection with the preparation, execution, delivery,
administration, defense and enforcement of this Agreement or any of
the other Loan Documents (defined below), including reasonable
attorneys' fees and all other costs, taxes and fees (a) incurred
before or after commencement of litigation or at trial, on appeal
or in any other proceeding, (b) incurred in any bankruptcy
proceeding, (c) assessing and responding to any subpoena,
garnishment or similar process served on Bank relating to Borrower,
any collateral, any guarantor, the Loan Documents or the extension
of credit evidenced thereby, and (d) related to any waivers or
amendments with respect thereto. Examples of such costs, taxes and
fees include but are not limited to fees, taxes and costs for
filing, perfecting or confirming the priority of Bank's lien, title
searches, title insurance, documentary, intangibles or filing taxes
and fees, appraisals, environmental audits and other reviews
related to Borrower, any collateral, any guarantor, the Loan
Documents or the advances evidenced thereby, if requested by Bank.
Borrower will also reimburse Bank and any Purchaser for all costs
of collection, including all reasonable attorneys' fees, before and
after judgment, and the costs of preservation and/or liquidation of
any collateral.
-3-
1.9 Conditions to Borrowing. Bank will not
be obligated to make (or continue to make) advances hereunder
unless (i) Bank has received executed originals of the Note and all
other documents or agreements applicable to any loans described
herein, including but not limited to the documents specified in
Article III (collectively with this Agreement the "Loan Documents"), in form and content
satisfactory to Bank; (ii) if the Note and loans thereunder are
secured, Bank has received confirmation satisfactory to it that
Bank has a properly
perfected security interest, security title, mortgage or lien, with
the proper priority; (iii) to the extent required by applicable
law, Bank has received and reviewed flood determinations covering
all real estate collateral securing the Note and loans thereunder,
Bank has provided to Borrower any required regulatory notice
pertaining to any such real estate collateral located in a special
flood hazard area, and Borrower or the owner of any such real
estate collateral has provided evidence of sufficient flood
insurance covering any real estate collateral located in a special
flood hazard area and any personal property contents therein, all
in form and content satisfactory to Bank; (iv) Bank has received
certified copies of Borrower's governance documents and
certification of entity status satisfactory to Bank and all other
relevant documents; (v) Bank has received a certified copy of a
resolution or authorization in form and content satisfactory to
Bank authorizing the Note and loans and all acts contemplated by
this Agreement and all related documents, and confirmation of
proper authorization of all guaranties and other acts of third
parties contemplated hereunder; (vi) if required by Bank, Bank has
been provided with an Opinion of Borrower's counsel in form and
content satisfactory to Bank confirming the matters outlined in
Section 2.2 and such other matters as Bank requests; (vii) no
default exists under this Agreement or under any other Loan
Documents, or under any other agreements by and between Borrower
and Bank; and (viii) all proceedings taken in connection with the
transactions contemplated by this Agreement (including any required
environmental assessments), and all instruments, authorizations and
other documents applicable thereto, are satisfactory to Bank and
its counsel.
1.10
Paid-In-Full Period. Not
applicable.
ARTICLE
II. WARRANTIES AND COVENANTS
While
any part of the credit granted to Borrower under this Agreement or
the other Loan Documents is available or any obligations under any
of the Loan Documents are unpaid or outstanding, Borrower
continuously warrants and agrees as follows:
2.1 Accuracy of Information. All
information, certificates or statements given to Bank in connection
with or pursuant to any of the Loan Documents or the loan facility
evidenced thereby will be true and complete when
given.
2.2 Organization and Authority; Litigation.
This Agreement and the other Loan Documents are the legal, valid
and binding obligations of Borrower, enforceable against Borrower
in accordance with their terms. The execution, delivery and
performance of this Agreement and all other Loan Documents to which
Borrower is a party (i) are within Borrower's power; (ii) do not
require the approval of any governmental agency; and (iii) will not
violate any law, agreement or restriction by which Borrower is
bound. Borrower has all requisite power and authority and possesses
all licenses necessary to conduct its business and own its
properties. Each Borrower which is not a natural person is validly
existing and in good standing under the laws of its state of
organization, and this Agreement and all other Loan Documents to
which any such Borrower is a party have been authorized by all
appropriate entity action. There is no litigation or administrative
proceeding threatened or pending against Borrower which would, if
adversely determined, have a material adverse effect on Borrower's
financial condition or its property.
2.3 Existence; Business Activities; Assets; Change
of Control; Investments and Loans; Distributions. Borrower
and any Guarantor each will not (i) make any material change in the
nature or manner of its business activities; or (ii) sell, lease
except to the extent pursuant to a lease previously approved by
Bank in writing, transfer or otherwise dispose of all or any
material portion of its assets. In addition, any Borrower or
Guarantor which is a corporation, limited liability company,
partnership, limited partnership or other legal entity will (i)
preserve its existence, rights and franchises; (ii) not liquidate,
dissolve, acquire another entity or merge or consolidate with or
into another entity, divide or split itself into multiple legal
entities or change its form of organization; and (iii) not amend
its organizational documents in a manner that may conflict with any
term or condition of the Loan Documents. If any Borrower or
Guarantor is a trust, neither the settlor(s) of any such trust nor
any court having jurisdiction over such trust will revoke such
trust, in whole or part, or modify the terms of such trust in a
manner that may conflict with any term or condition of the Loan
Documents. No event shall occur which causes or results in a
transfer of more than 25% of the direct or indirect beneficial
ownership of any Borrower which is a legal entity or any Guarantor
which is a legal entity while any obligations are outstanding or
while Bank has any obligation to provide funding to
Borrower.
Notwithstanding the
foregoing, without the prior consent of Bank, any Borrower or
Guarantor which is a natural person may transfer his or her assets
into a revocable trust beneficially owned and controlled by such
natural person so long as such trust becomes a co- obligor with the
Borrower or Guarantor, as the case may be, on terms satisfactory to
Bank; and any natural person which is a beneficial owner of
Borrower or any Guarantor may transfer his or her interest in
Borrower or such Guarantor to a revocable trust beneficially owned
and controlled by such natural person so long as such trust
executes a guaranty of the obligations of Borrower equivalent in
form and substance to any guaranty then being provided by such
beneficial owner.
Borrower will not,
without the prior written consent of Bank, make any investment in,
or loan any money to, another entity (other than purchases of
securities on a recognized exchange which are not otherwise
restricted by the Loan Documents), or loan any money to any
individual. Any Borrower which is a corporation, limited liability
company, partnership, limited partnership or other legal entity or
which is an irrevocable trust will not, without the prior written
consent of Bank, redeem, purchase, or retire any of the capital
stock or other equity interests in Borrower, or declare or pay any
dividends, or make any other payments or distributions of a similar
type or nature including withdrawal distributions.
2.4 Use of Proceeds; Margin Stock;
Speculation. Advances by Bank hereunder are made for the
business purposes of Borrower and will be used exclusively by
Borrower for working capital purposes. Without limitation of the
foregoing, (a) Borrower will not use any of the loan advances under
the Note to purchase or carry "margin" stock (as defined in
Regulation U of the Board of Governors of the Federal Reserve
System); and (b) no part of any of the proceeds will be used for
speculative investment purposes, including, without limitation,
speculating or hedging in the commodities and/or futures
market.
-4-
2.5 Environmental Matters. Except as
disclosed in a written schedule attached to this Agreement (if no
schedule is attached, there are no exceptions), there exists no
uncorrected violation by Borrower of any federal, state or local
laws (including statutes, regulations, ordinances or other
governmental restrictions and requirements) relating to the
discharge of air pollutants, water pollutants or process waste
water or otherwise relating to the environment or Hazardous
Substances as hereinafter defined, whether such laws currently
exist or are enacted in the future (collectively "Environmental Laws"). The term
"Hazardous Substances" will
mean any hazardous or toxic wastes, chemicals or other substances,
the generation, possession or existence of which is prohibited or
governed by any Environmental Laws. Borrower is not subject to any
judgment, decree, order or citation, or a party to (or threatened
with) any litigation or administrative proceeding, which asserts
that Borrower (i) has violated any Environmental Laws; (ii) is
required to clean up, remove or take remedial or other action with
respect to any Hazardous Substances (collectively "Remedial Action"); or (iii) is required
to pay all or a portion of the cost of any Remedial Action, as a
potentially responsible party. Except as disclosed on Borrower's
environmental questionnaire provided to Bank, there are not now,
nor to Borrower's knowledge after reasonable investigation have
there ever been, any Hazardous Substances (or tanks or other
facilities for the storage of Hazardous Substances) stored,
deposited, recycled or disposed of on, under or at any real estate
owned or occupied by Borrower during the periods that Borrower
owned or occupied such real estate, which if present on the real
estate or in soils or ground water, could require Remedial Action.
To Borrower's knowledge, there are no proposed or pending changes
in Environmental Laws which would adversely affect Borrower or its
business, and there are no conditions existing currently or likely
to exist while the Loan Documents are in effect which would subject
Borrower to Remedial Action or other liability. ▇▇▇▇▇▇▇▇ currently
complies with and will continue to timely comply with all
applicable Environmental Laws; and will provide Bank, immediately
upon receipt, copies of any correspondence, notice, complaint,
order or other document from any source asserting or alleging any
circumstance or condition which requires or may require a financial
contribution by Borrower or Remedial Action or other response by or
on the part of Borrower under Environmental Laws, or which seeks
damages or civil, criminal or punitive penalties from Borrower for
an alleged violation of Environmental Laws.
2.6 Compliance with Laws. Borrower has
complied with and will at all times continue to comply with all
laws applicable to its business and its properties, and has all
permits, licenses and approvals required by such laws, copies of
which have been provided to Bank. If any portion of the loan
advances under this Agreement are guaranteed under a governmental
or quasi-governmental loan guaranty program, ▇▇▇▇▇▇▇▇ has also
complied with and will at all times continue to comply with the
requirements of such program and any related guaranty approval
conditions.
2.7 Restriction on Indebtedness and Capitalized
Leases. Borrower will not create, incur, assume or have
outstanding any indebtedness or liabilities for capitalized leases
except (i) trade indebtedness incurred in the ordinary course of
business owing to third parties; (ii) any indebtedness owing to
Bank and its affiliates; (iii) for any Borrower which is a natural
person or the revocable trust of a natural person, indebtedness
incurred for personal, family or household purposes of such natural
person; (iv) liabilities classified as operating leases in
accordance with Applicable Accounting Standards; and (v) any other
indebtedness outstanding on the date hereof, and shown on
Borrower's financial statements delivered to Bank prior to the date
hereof, provided that such other indebtedness will not be
increased.
2.8 Restriction on Liens. Borrower will not
create, incur, assume or permit to exist any security title,
mortgage, pledge, encumbrance or other lien or levy upon or
security interest in any of Borrower's property now owned or
hereafter acquired, except (i) taxes and assessments which are
either not delinquent or which are being contested in good faith
with adequate reserves provided; (ii) easements, restrictions and
minor title irregularities which do not, as a practical matter,
have an adverse effect upon the ownership and use of the affected
property; (iii) liens in favor of Bank and its affiliates; (iv) for
any Borrower which is a natural person or the revocable trust of a
natural person, liens on owner-occupied residential property or
consumer goods granted to secure indebtedness incurred for
personal, family or household purposes of such natural person,
provided that such property or goods have not been pledged as
collateral to secure the Loan; and (v) other liens disclosed in
writing to Bank prior to the date hereof.
2.9 Restriction on Contingent Liabilities.
Borrower will not guarantee or become a surety or otherwise
contingently liable for any obligations of others, except (i)
pursuant to the deposit and collection of checks and similar
matters in the ordinary course of business; and (ii) guaranties or
other contingent liabilities in favor of Bank and its
affiliates.
2.10 Insurance.
Borrower will maintain insurance on all collateral securing the
Loan and on all of Borrower's other business assets to such extent,
covering such risks and with such insurers as is usual and
customary for businesses operating similar properties, and as is
satisfactory to Bank, including insurance for fire and other risks
insured against by extended coverage, public liability insurance
and workers' compensation insurance; and will include "Lender's
Loss Payable," "Mortgagee" or substantively equivalent endorsements
or policy language in favor of Bank on any casualty policies and
take such other action as Bank may reasonably request to ensure
that Bank will receive (subject to no other interests) the
insurance proceeds on Bank's collateral.
2.11 Taxes
and Other Liabilities. Borrower will pay and discharge, when
due, all of its taxes, assessments, wage and employee obligations,
and other liabilities, except when the payment thereof is being
contested in good faith by appropriate procedures which will avoid
foreclosure of liens securing such items, and with adequate
reserves provided therefor.
2.12 Inspection
of Properties and Records; Fiscal Year. Borrower will permit
representatives of Bank to visit and inspect any of the business
properties and examine any of the books and records of Borrower at
any reasonable time and as often as Bank may reasonably desire.
Borrower will not change its fiscal year.
-5-
2.13 Financial
Information and Reporting. The financial statements and
other information previously provided to Bank is, and all financial
information provided to Bank in the future will be, complete and
accurate and prepared in accordance with Applicable Accounting
Standards. There has been no material adverse change in Borrower's
financial condition since such information was provided to Bank.
Borrower will (i) maintain accounting records in accordance with
Applicable Accounting Standards; (ii) provide
Bank
with such information concerning its business affairs and financial
condition (including insurance coverage) as Bank may request; and
(iii) without request, provide to Bank, in form and content
acceptable to Bank:
Not
applicable.
2.14
Financial Covenants. Not
applicable.
2.15 Financial
Definitions and Calculations. For purposes of Sections 1.2
and 2.13 through 2.15, the following terms shall have the meanings
ascribed to them below. Financial terms used in this Agreement
which are not specifically defined in this Agreement shall have the
meanings ascribed to them under Applicable Accounting Standards. To
the extent not inconsistent with Applicable Accounting Standards,
financial information expressed as a ratio or in a dollar amount
may be rounded to the nearest one-hundredth. For any Subject Party
who does not have a separate fiscal year for tax reporting
purposes, the fiscal year will be deemed to be the calendar year.
Bank’s calculations in determining compliance or
non-compliance by any Subject Party with any financial covenant
requirement shall be deemed final absent manifest
error.
"Applicable Accounting Standards" means
for any Subject Party which is not a natural person or the
revocable trust of a natural person, generally accepted accounting
principles or such other basis of accounting as may be acceptable
to Bank in its sole discretion; and for any Subject Party which is
a natural person or the revocable trust of a natural person, cash
basis accounting principles or such other basis of accounting as
may be acceptable to Bank in its sole discretion. For any given
Subject Party, Applicable Accounting Standards will be consistently
applied through the accounting periods involved.
"Subject Party" shall mean the party or
parties to which a particular financial covenant or financial
reporting requirement applies. If the Subject Party consists of
multiple persons and/or entities, such covenant shall be applied on
a combined basis and without duplication.
ARTICLE
III. COLLATERAL AND GUARANTIES
3.1 Collateral. As of the date of this
Agreement and the Note, this Agreement and the Note are secured by
any and all security interests, pledges and other liens, if any,
against personal property of any Borrower now or hereafter in
existence granted to Bank to secure indebtedness of Borrower to
Bank, regardless of whether the
indebtedness evidenced by the Note is in any way related to or of
the same or different type or class as any other indebtedness or
obligations secured by any such liens, but only if and to the
extent that the instrument or agreement granting any such lien by
its terms secures the Note and/or this Agreement or by its terms
broadly secures all existing and/or future credit granted by Bank
to any Borrower, to any Borrower and others, to others guaranteed,
endorsed or otherwise secured by any Borrower, or to any
debtor-in-possession or other successor-in- interest of any
Borrower; provided, however, that liens originally granted
to secure only indebtedness of a natural person or the revocable
trust of a natural person incurred for personal, family or
household purposes shall not secure the Note.
3.2 Guaranties. This Agreement and the Note
are guaranteed by each and every guaranty now or hereafter in
existence guaranteeing the indebtedness of Borrower to Bank (except
for any guaranty expressly limited by its terms to a specific
separate obligation of Borrower to Bank or which guarantees
indebtedness incurred for personal, family or household
purposes).
3.3 Credit Balances; Setoff. As additional
security for the payment of the obligations described in the Loan
Documents and any other obligations of Borrower to Bank of any
nature whatsoever (collectively the "Obligations"), Borrower hereby grants to
Bank a security interest in, a lien on and an express contractual
right to set off against all accounts of Borrower at Bank, and all
other property of Borrower now or hereafter in the possession of
Bank and the right to refuse to allow withdrawals from any account
(collectively "Setoff").
Bank may, at any time upon the occurrence of a default hereunder
(notwithstanding any notice requirements or grace/cure periods
under this or other agreements between Borrower and Bank) Setoff
against the Obligations whether or
not the Obligations (including future installments) are then due or
have been accelerated, all without any advance or contemporaneous
notice or demand of any kind to Borrower, such notice and demand
being expressly waived.
The
omission of any reference to an agreement in Sections 3.1 and 3.2
above will not affect the validity or enforceability thereof. The
rights and remedies of Bank outlined in this Agreement and the
documents identified above are intended to be
cumulative.
-6-
ARTICLE
IV. DEFAULTS
4.1 Defaults. Notwithstanding any cure periods
described below, Borrower will immediately notify Bank in writing
when Borrower obtains knowledge of the occurrence of any default
specified below. Regardless of whether ▇▇▇▇▇▇▇▇ has given
the required notice, the occurrence of one or more of the following
will constitute a default:
(a)
Nonpayment. Borrower shall fail to pay
(i) any interest due on the Note or any fees, charges, costs or
expenses under the Loan Documents by 5 days after the same becomes
due; or (ii) any principal amount of the Note when
due.
(b)
Nonperformance. Borrower or any
guarantor of Borrower's Obligations to Bank ("Guarantor") shall fail to perform or
observe any agreement, term, provision, condition, or covenant
(other than a default occurring under (a), (c), (d), (e), (f)
or
(g) of
this Section 4.1) required to be performed or observed by Borrower
or any Guarantor hereunder, under any guaranty of Borrower's
Obligations to Bank or under any other Loan Document or other
agreement with or in favor of Bank.
(c)
Misrepresentation. Any financial
information, statement, certificate, representation or warranty
given to Bank by Borrower or any Guarantor (or any of their
representatives) in connection with entering into this Agreement or
the other Loan Documents and/or any borrowing thereunder, or
required to be furnished under the terms thereof, shall prove
untrue or misleading in any material respect (as determined by Bank
in the exercise of its judgment) as of the time when
given.
-7-
(d)
Default on Other Obligations. Borrower
or any Guarantor shall be in default under the terms of any loan
agreement, promissory note, lease, conditional sale contract,
guaranty or other agreement, document or instrument evidencing,
governing or securing any indebtedness or other obligations owing
by Borrower or any Guarantor to Bank or any indebtedness in excess
of $10,000 owing by Borrower or any Guarantor to any third party,
and the period of grace, if any, to cure said default shall have
passed.
(e)
Judgments. Any judgment shall be
obtained against Borrower or any Guarantor which, together with all
other outstanding unsatisfied judgments against Borrower (or such
Guarantor), shall exceed the sum of $10,000 and shall remain
unvacated, unbonded or unstayed for a period of 30 days following
the date of entry thereof.
(f)
Certain Guarantor Events. (i) Any
Guarantor shall die or cease to exist or any event shall occur
which results in or requires the dissolution or winding up of any
Guarantor; or (ii) any Guarantor shall attempt to revoke any
guaranty of the Obligations described herein, or any guaranty
becomes unenforceable in whole or in part for any
reason.
(g)
Certain Borrower Events; Bankruptcy/Insolvency
of Borrower or Guarantor. (i) Borrower shall die or cease to
exist or any event shall occur which results in or requires the
dissolution or winding up of Borrower; or (ii) any bankruptcy,
insolvency or receivership proceedings, or an assignment for the
benefit of creditors, shall be commenced under any Federal or state
law by or against Borrower or any Guarantor.
(h)
Adverse Change; Insecurity. (i) There is
a material adverse change in the business, properties, financial
condition or affairs of Borrower or any Guarantor, or in any
collateral securing the Obligations; or (ii) Bank in good ▇▇▇▇▇
▇▇▇▇▇ itself insecure.
4.2 Termination of Advances; Additional Bank
Rights. Upon the Maturity Date or the occurrence of any of
the events identified in Section 4.1, Bank may at any time
(notwithstanding any notice requirements or grace/cure periods
under this or other agreements between Borrower and Bank) (i)
immediately terminate its obligation, if any, to make additional
loans to Borrower; (ii) Setoff; and/or
(iii)
take such other steps to protect or preserve Bank's interest in any
collateral, including without limitation, notifying account debtors
to make payments directly to Bank, advancing funds to protect any
collateral and insuring collateral at Borrower's expense; all
without demand or notice of any kind, all of which are hereby
waived.
4.3 Acceleration
of Obligations. Upon the occurrence of any event under
Section 4.1(g), the unpaid principal balance of the Obligations,
together with all interest accrued thereon and other amounts
accrued hereunder and under the other Loan Documents, will
thereupon be immediately due and payable, all without presentation,
demand, protest or notice of any kind, all of which are hereby
waived, and notwithstanding anything to the contrary contained
herein or in any of the other Loan Documents. Upon the occurrence
of any of the events identified in Sections 4.1(a) through 4.1(f)
and paragraph 4.1(h), and the passage of any applicable cure
periods, Bank may at any time thereafter, by written notice to
▇▇▇▇▇▇▇▇, declare the unpaid principal balance of any Obligations,
together with the interest accrued thereon and other amounts
accrued hereunder and under the other Loan Documents, to be
immediately due and payable; and the unpaid balance will thereupon
be due and payable, all without presentation, demand, protest or
further notice of any kind, all of which are hereby waived, and
notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents. Nothing contained in Section 4.1, Section 4.2
or this section will limit Bank's right to Setoff as provided in
Section
3.3
or otherwise in this Agreement.
4.4
Other Remedies. Nothing in
this Article IV is intended to restrict Bank's rights under any of
the Loan Documents or at law, and Bank may exercise all such rights
and remedies as and when they are available.
ARTICLE
V. ADDITIONAL TERMS
The
warranties, covenants, conditions and other terms described in this
Section are incorporated into this Agreement. Not
applicable.
-8-
ARTICLE
VI. MISCELLANEOUS
6.1 Delay; Cumulative Remedies. No delay on
the part of Bank in exercising any right, power or privilege
hereunder or under any of the other Loan Documents will operate as
a waiver thereof, nor will any single or partial exercise of any
right, power or privilege hereunder preclude other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein specified are cumulative
and are not exclusive of any rights or remedies which Bank would
otherwise have.
6.2 Relationship to Other Documents. The
warranties, representations, covenants and other obligations of
Borrower (and the rights and remedies of Bank) that are outlined in
this Agreement and the other Loan Documents are intended to
supplement each other. In the event of any inconsistencies in any
of the terms in the Loan Documents, all terms will be cumulative so
as to give Bank the most favorable rights set forth in the
conflicting documents, except that if there is a direct conflict
between any preprinted terms and any transaction-specific terms
(whether included in an additional terms section, addendum or
otherwise), the transaction-specific terms will control.
Furthermore, ▇▇▇▇▇▇▇▇ has had an opportunity to fully review this
Agreement and the other Loan Documents to which Borrower is a
party, and accordingly, Borrower and Bank waive any presumption or
rule requiring construction of this Agreement and the other Loan
Documents against the drafter.
6.3 Further Assurances. Borrower shall
promptly correct any defect or error that may be discovered in any
Loan Document or in the execution, acknowledgment or recordation of
any Loan Document. Promptly upon request by Bank, ▇▇▇▇▇▇▇▇ also
shall do, execute, acknowledge, deliver, record, re-record, file,
re-file, register and re-register, any and all deeds, conveyances,
mortgages, deeds of trust, trust deeds, assignments, estoppel
certificates, financing statements and continuations thereof,
notices of assignment, transfers,
certificates, assurances and other instruments, and must take or
cause to be taken such further actions, that may be required by law
or by Bank, all in form and substance satisfactory to Bank in its
sole discretion and all at the expense of Borrower: (a) to carry
out more effectively the purposes of the Loan Documents; (b) to
perfect and maintain the validity, effectiveness and priority of
any security interests intended to be created by the Loan
Documents; (c) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm the rights granted or intended to be
granted to Bank in connection with any Loan Document; and (d) to
carry out the intention or facilitate the performance of the
provisions of any Loan Document. Borrower shall furnish to Bank
evidence satisfactory to Bank of every such recording, filing or
registration.
-9-
6.4 Successors; Assignment. The rights,
options, powers and remedies granted in this Agreement and the
other Loan Documents shall be binding upon Borrower and Bank and
their respective successors and assigns, and shall inure to the
benefit of Borrower and Bank and the successors and assigns of
Bank, including without limitation any purchaser of any or all of
the rights and obligations of Bank under the Note and the other
Loan Documents. Borrower may not assign its rights or Obligations
under this Agreement or any other Loan Documents without the prior
written consent of Bank. Bank's acceptance of an assumption of the
Obligations under the Note, and any release of Borrower (if any) in
connection with such assumption, does not constitute a
novation.
6.5 Disclosure. Bank may, in connection with
any sale or potential sale of all or any interest in the Note and
other Loan Documents, disclose any financial information Bank may
have concerning Borrower to any purchaser or potential purchaser.
From time to time, Bank may, in its sole discretion and without
obligation to Borrower, any Guarantor or any other third party,
disclose information about Borrower, the Loan Documents and
advances hereunder to any Guarantor, surety or other accommodation
party. This provision does not obligate Bank to supply any
information or release Borrower from its obligation to provide such
information, and ▇▇▇▇▇▇▇▇ agrees to keep all Guarantors, sureties
or other accommodation parties advised of its financial condition
and other matters which may be relevant to their obligations to
Bank.
6.6 Indemnification. Except for harm arising
from Bank's willful misconduct, ▇▇▇▇▇▇▇▇ hereby indemnifies and
agrees to defend and hold Bank harmless from any and all losses,
costs, damages, claims and expenses of any kind suffered by or
asserted against Bank relating to claims by third parties arising
out of the financing provided under the Loan Documents or related
to any collateral (including, without limitation, Borrower's
failure to perform its obligations relating to Environmental
Matters described in Section 2.5 above). This indemnification and
hold harmless provision will survive the termination of the Loan
Documents and the satisfaction of the Obligations due
Bank.
6.7 Notice
of Claims Against Bank; Limitation of Certain Damages. In
order to allow Bank to mitigate any damages to Borrower from Bank's
alleged breach of its duties under the Loan Documents or any other
duty, if any, to Borrower, ▇▇▇▇▇▇▇▇ agrees to give Bank immediate
written notice of any claim or defense it has against Bank, whether
in tort or contract, relating to any action or inaction by Bank
under the Loan Documents, or the transactions related thereto, or
of any defense to payment of the Obligations for any reason. The
requirement of providing timely notice to Bank represents the
parties' agreed-to standard of performance regarding claims against
Bank. Notwithstanding any claim that Borrower may have against
Bank, and regardless of any notice Borrower may have given Bank,
Bank will not be liable to Borrower
for consequential and/or special damages arising therefrom, except
those damages arising from Bank's willful
misconduct.
6.8 Notices. For purposes of this Agreement
and the other Loan Documents, notice of any record shall be deemed
delivered when the record has been (a) deposited in the United
States Mail, postage pre-paid, (b) received by overnight delivery
service, (c) received by telex, (d) received by telecopy, (e)
received through the internet, or (f) when personally
delivered.
6.9
USA
PATRIOT Act; Anti-Corruption Laws and Sanctions.
(a) IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. Bank hereby
notifies Borrower, any guarantor and any pledgor of collateral
(each of Borrower, any guarantor and any pledgor of collateral, a
"Loan Party") that, pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)), as amended from time to
time, and any successor statute (the "PATRIOT Act"), it may be required to
obtain, verify and record information that identifies such Loan
Party, which information includes the name and address of such Loan
Party and other information that will allow Bank to identify such
Loan Party in accordance with the PATRIOT Act.
(b)
▇▇▇▇▇▇▇▇
represents, warrants, covenants and agrees as follows:
(i) Borrower, each and
all entities 50% or more owned, directly or indirectly, by Borrower
("Subsidiaries"), and their
respective officers, employees, directors and, to the knowledge of
Borrower, agents are and at all times will remain in compliance in
all material respects with the following: (A) the Foreign Corrupt
Practices Act of 1977, as amended, and the rules and regulations
thereunder, and any other anti-corruption law applicable to
Borrower and any Subsidiaries (collectively, "Anti-Corruption Laws") and (B)
applicable sanctions administered or enforced from time to time by
the U.S. government, including those administered by the U.S.
Department of the Treasury's Office of Foreign Assets Control, and
any successor thereto ("OFAC") and the U.S. Department of State,
the United Nations Security Council, the European Union, Her
Majesty's Treasury or other relevant sanctions authority
("Sanctions"). Borrower and
any Subsidiaries have implemented and maintain in effect policies
and procedures designed to ensure compliance with Anti-Corruption
Laws and applicable Sanctions.
(ii) Borrower
will not, directly or indirectly, use any proceeds of the loans
made hereunder, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
individual or entity, (A) in furtherance of an offer, payment,
promise to pay, or authorization of the payment or giving of money,
or anything else of value, to any individual or entity in violation
of any Anti-Corruption Laws or (B)(1) to fund any activities or
business of or with any individual or entity, or
in any
country or territory, that, at the time of such funding, is the
subject of Sanctions, or (2) in any other manner that would result
in a violation of Sanctions by any individual or entity (including
any individual or entity participating in the loans made hereunder,
whether as Bank, underwriter, advisor, investor, or
otherwise).
-10-
(iii) None
of Borrower, any Subsidiary or any of their respective directors,
officers or employees is an individual or entity that is, or is 50%
or more owned (individually or in the aggregate, directly or
indirectly) or controlled by individuals or entities (including any
agency, political subdivision or instrumentality of any government)
that are (a) the target of any Sanctions or (b) located, organized
or resident in a country or territory that is the subject of
Sanctions (currently Crimea, Cuba, Iran, North Korea and
Syria).
(iv) Borrower
shall, and shall cause each Subsidiary to, provide such information
and take such actions as are reasonably requested by Bank to assist
Bank in maintaining compliance with Anti-Corruption Laws,
Sanctions, and applicable anti-money laundering laws and
regulations ("AML Laws").
Without limitation of the foregoing, Borrower represents and
warrants that the most recent certification of beneficial ownership
of any Borrower which is a "legal entity" within the scope of the
ownership certification requirements of the AML Laws is true and
correct as of the date of this Agreement; and Borrower agrees to
immediately (A) notify Bank in writing of any event that results in
any individual becoming or ceasing to be the beneficial owner,
directly or indirectly, of 25% or more of any such "legal entity"
Borrower; (B) notify Bank of any change in the individual
previously identified by ▇▇▇▇▇▇▇▇'s representative(s)
("Account Opener/Certifier")
as the individual who holds a significant responsibility to
control, manage or direct any such "legal entity" Borrower; and (C)
upon request of Bank, provide in a form acceptable to Bank an
updated certification, signed by a representative of any such
"legal entity" Borrower acting as an Account Opener/Certifier under
regulations implemented under the AML Laws, of the beneficial
ownership and control of such Borrower.
6.10 Communication
By Cellular Phone or Other Wireless Device. By providing
Bank with a telephone number for a cellular phone or other wireless
device, including a number that Borrower later converts to a
cellular number, Borrower is expressly consenting to receiving
communications - including but not limited to prerecorded or
artificial voice message calls, text messages, and calls made by an
automatic telephone dialing system - from Bank and Bank’s
affiliates and agents at that number. This express consent applies
to each such telephone number that Borrower provides to Bank now or
in the future and permits such calls for non- marketing purposes.
Calls and messages may incur access fees from Borrower’s
cellular provider.
6.11 Applicable
Law and Jurisdiction; Joint Liability; Severability. For
purposes of this Agreement and all other Loan Documents, Borrower
acknowledges that the parties are relying upon the applicability
and effectiveness of federal law which preempts, or provides an
alternative or alternatives to, otherwise applicable state law.
Absent such federal preemption, this Agreement and all other Loan
Documents, unless otherwise provided therein, shall be governed by
and interpreted in accordance with the internal laws of the State
of Utah. BORROWER HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
ANY COUNTY, STATE OR FEDERAL COURT SITUATED IN THE STATE OF UTAH,
AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, WITH REGARD TO
ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS
AGREEMENT, THE NOTE, THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR
ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING. Nothing herein shall affect
Bank's rights to serve process in any manner permitted by law, or
limit Bank's right to bring proceedings against Borrower in the
competent courts of any other jurisdiction or jurisdictions. This
Agreement, the other Loan Documents and any amendments thereto
(regardless of when executed) shall be deemed effective and
accepted only at Bank's offices, and only upon Bank's receipt of
the executed originals thereof. If there is more than one Borrower,
the liability of Borrowers under this Agreement and all other Loan
Documents shall be joint and several, and any reference to a party
in the singular shall be deemed to refer to each and all such
parties. Invalidity of any provision of this Agreement or any other
Loan Document shall not affect the validity of any other
provision.
6.12 Copies;
Entire Agreement; Modification. Borrower hereby acknowledges
the receipt of a copy of this Agreement and all other Loan
Documents. Without notice to or consent of Borrower or any
guarantor, Bank may create electronic images of any Loan Documents
and destroy paper originals of any such imaged documents. Such
images have the same legal force and effect as the paper originals
and are enforceable against Borrower and any other parties thereto.
Bank may convert any Loan Document into a "transferrable record" as
such term is defined under, and to the extent permitted by,
applicable law, with the image of such instrument in Bank's
possession constituting an "authoritative copy." If Bank agrees, in
its sole discretion, to accept delivery by telecopy or PDF of an
executed counterpart of a signature page of any Loan Document or
other document required to be delivered under the Loan Documents,
such delivery will be valid and effective as delivery of an
original manually executed counterpart of such document for all
purposes. If Bank agrees, in its sole discretion, to accept any
electronic signatures of any Loan Document or other document
required to be delivered under the Loan Documents, the words
"execution," "signed," and "signature," and words of like import,
in or referring to any document so signed will be deemed to include
electronic signatures and/or the keeping of records in electronic
form, which will be of the same legal effect, validity and
enforceability as a manually executed signature and/or the use of a
paper-based recordkeeping system, to the extent and as provided for
in any applicable law. Bank may rely on any such electronic
signatures without further inquiry.
IMPORTANT:
READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING AND SIGNED BY THE
PARTIES ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE
TERMS OF THIS AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL
OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN BORROWER AND BANK. A
MODIFICATION OF ANY OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN
BORROWER AND BANK, WHICH OCCURS AFTER RECEIPT BY BORROWER OF
THIS NOTICE,
MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE AND
SHOULD NOT BE RELIED UPON.
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6.13 Waiver
of Jury Trial. TO THE EXTENT PERMITTED BY LAW, ▇▇▇▇▇▇▇▇ AND BANK
HEREBY JOINTLY AND SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO ANY OF THE LOAN
DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED
THERETO. BORROWER AND BANK EACH REPRESENTS TO THE OTHER THAT THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
6.14 Attachments.
All documents attached hereto, including any appendices, schedules,
riders, and exhibits to this Agreement, are hereby expressly
incorporated by reference.
IN
WITNESS WHEREOF, the undersigned have executed the REVOLVING CREDIT
AGREEMENT as of September 30, 2021. BORROWER:
PARK
CITY GROUP, INC.
a/an
Nevada
Corporation
By:/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name
and Title:
▇▇▇▇ ▇▇▇▇▇▇▇, Chief Financial
Officer
BANK:
U.S.
Bank National Association
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇ Name and
Title: ▇▇▇▇▇ ▇▇▇▇▇, Officer
BORROWER ADDRESS:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-12-
UNLIMITED
CONTINUING GUARANTY
This
Guaranty (this "Agreement")
is made by ReposiTrak, Inc. (the "Guarantor") in favor of U.S. Bank
National Association (the "Bank").
1. Guaranty.
For value received, and to induce Bank to extend or continue credit
or other financial accommodations now or in the future to PARK CITY
GROUP, INC. (the "Borrower"), Guarantor hereby absolutely
and unconditionally jointly and severally guarantees prompt payment
of and promises to pay or cause to be paid to Bank the Obligations
(as hereinafter defined), whether or not the Obligations are valid
and enforceable against Borrower, whenever the Obligations become
due, whether on demand, at maturity or by reason of acceleration,
or at the time Borrower or Guarantor shall become the subject of
any bankruptcy or insolvency proceeding. As used herein, the term
"Obligations" shall mean all
loans, drafts, overdrafts, checks, notes and all other debts,
liabilities and obligations of every kind owing by Borrower to
Bank, whether direct or indirect, absolute or contingent,
liquidated or unliquidated whether of the same or a different
nature and whether existing now or in the future, including
interest thereon and all costs, expenses and reasonable attorneys'
fees (including fees of inside counsel) paid or incurred by Bank at
any time in attempting to collect any of the foregoing, to realize
on any collateral securing any of the foregoing or this Agreement,
and to enforce this Agreement, whether such costs, expenses or fees
are incurred before or after commencement of litigation or at
trial, on appeal, after judgment or in any other proceeding. The
definition of "Obligations" also includes the amount of any
payments made to Bank or another on behalf of Borrower (including
payments resulting from liquidation of collateral) which are
recovered from Bank by a trustee, receiver, creditor or other party
pursuant to applicable Federal or state law (the "Surrendered Payments"). In the event
that Bank makes any Surrendered Payments (including pursuant to a
negotiated settlement), the Surrendered Payments shall immediately
be reinstated as Obligations, regardless of whether Bank has
surrendered or cancelled this Agreement prior to returning the
Surrendered Payments. For purposes of this Agreement, "Loan Documents" shall mean any
promissory note, loan agreement, security or pledge agreement,
assignment, financing statement, lease, mortgage, deed to secure
debt, deed of trust or other pledge or conveyance of an interest in
real or personal property, indemnity agreement, subordination,
letter of credit and letter of credit reimbursement agreement,
banker's acceptance, and any other agreement, document or
instrument previously, concurrently or hereafter executed or
delivered by Borrower to or in favor of Bank evidencing, creating,
securing or otherwise related to the Obligations, including all
amendments, replacements, extensions, renewals and deferrals
thereof or thereto.
Notwithstanding
anything herein to the contrary, the obligations of a Guarantor
hereunder shall not include any obligation to pay or perform the
obligations of any Borrower under any agreement, contract or
transaction that constitutes a "swap" within the meaning of Section
1a(47) of the Commodity Exchange Act (7 U.S.C. §1,
et seq., as amended from
time to time, and any successor statute) if and only to the extent
that the guaranty by such Guarantor of, or the grant by such
Guarantor of a security interest to secure, such obligation is or
becomes illegal under the Commodity Exchange Act or any rule,
regulation or order of the Commodity Futures Trading Commission (or
the application or official interpretation thereof) by virtue of
such Guarantor's failure for any reason to constitute an "eligible
contract participant" as defined in the Commodity Exchange Act and
the regulations thereunder at the time the guaranty by such
Guarantor or the grant of such security interest becomes effective
with respect to such obligation.
2. Consent
to Bank Actions; No Discharge. Guarantor agrees that Bank
does not have to take any steps whatsoever to realize upon any
collateral securing the Obligations, or to proceed against Borrower
or any other guarantor or surety for the Obligations either before
or after proceeding against Guarantor; and Guarantor waives any
claim of marshalling of assets against Bank or any collateral.
Guarantor also agrees that Bank may do or refrain from doing any of
the following without notice to, or the consent of, Guarantor,
without reducing or discharging Guarantor's liability under this
Agreement: (i) renew, amend, modify, extend or release any existing
or future Obligations (including making additional advances, or
changing the interest rate or amount, time or manner of payment of
any Obligations), and make additional extensions of credit to
Borrower (which will become additional Obligations), regardless of
when such modifications or additional extensions of credit are
made, and regardless of whether they are similar to or different
from any other Obligations; (ii) amend, supplement and waive
compliance with any of the provisions of documents evidencing or
related to any of the Obligations; (iii) settle, modify, release,
compromise or subordinate any Obligation, any collateral securing
any Obligation or this Agreement, or the liability of any other
party responsible for payment of any Obligation; and (iv) accept
partial payments and apply any payments and all other amounts
received from Borrower, from liquidation of any collateral or from
any other guarantor to the Obligations (or any other amounts due to
Bank) in any manner that Bank elects. Guarantor also expressly
agrees that Guarantor's liability will not be reduced or discharged
by Bank's failure or delay in perfecting (or to continue perfection
of) any security interest, security title, mortgage, deed to secure
debt or other lien on any collateral securing the Obligations or
this Agreement, or to protect the value or condition of any such
collateral. GUARANTOR SPECIFICALLY
ACKNOWLEDGES THAT THIS AGREEMENT COVERS ALL EXISTING AND FUTURE
OBLIGATIONS OF BORROWER TO BANK REGARDLESS OF THE AMOUNT OF THOSE
OBLIGATIONS; THAT BANK CAN MAKE ADDITIONAL EXTENSIONS OF CREDIT TO
BORROWER WITHOUT NOTIFYING GUARANTOR; AND THAT BANK CAN DEMAND
PAYMENT FROM AND IMPOSE LIABILITY ON GUARANTOR WITHOUT FIRST TRYING
TO COLLECT FROM BORROWER OR ANY OTHER
GUARANTOR.
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3. Waivers.
Guarantor expressly waives all rights of setoff and counterclaims,
as well as diligence in collection or prosecution, presentment,
demand of payment or performance, protest, notice of dishonor,
nonpayment or nonperformance of any Obligation. Guarantor also
expressly waives notice of acceptance of this Agreement, and the
right to receive all other notices and demands of any kind relating
to the Obligations or this Agreement and waives any and all
defenses arising from invalidity, ineffectiveness, or
unenforceability of the Loan Documents as well as any defenses of
Borrower or of any other guarantor or surety pertaining to the
Obligations (except for discharge of the Obligations by final
payment). Guarantor agrees that any right of subrogation,
reimbursement,
performance or indemnification as to payment or enforcement of any
security interest securing the Obligations shall not be enforceable
by any Guarantor until Bank is paid in full. In addition to, and
not in substitution or lieu of, all of the other waivers and
releases contained herein from Guarantor, Guarantor hereby
specifically, unconditionally and jointly and severally waives any
and all defenses predicated upon: (i) change of ownership of any
collateral covered by any mortgage, deed to secure debt, deed of
trust or security agreement or other security instrument securing
the Obligations; (ii) acquiring additional collateral; (iii)
substitution of different collateral in exchange or exchanges for
part or parts of any original collateral; (iv) sale or other
disposition, either in whole or in part, of any collateral for the
Obligations, without notice to Guarantor unless otherwise required
by applicable law; (v) the fact that there may be persons other
than Guarantor solvent and responsible for the payment of the
Obligations; (vi) any change in form of organization, amendment of
organizational documents, release, death, dissolution, liquidation,
revocation, acquisition, consolidation, division, or termination of
the existence of Borrower or any other guarantor; (vii) Bank
obtaining, modifying or releasing guaranties of Borrower's
obligations from others, which guaranties might be on terms
different than the terms of this Agreement and of which terms
Guarantor might not have any knowledge; (viii) an election of
remedies; or (ix) any other defenses based on suretyship or
impairment of collateral.
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4. Borrower's
Financial Condition. Guarantor warrants and represents to
Bank that (i) Guarantor is sufficiently knowledgeable and
experienced in financial and business matters to evaluate and
understand the risks assumed in connection with the execution of
this Agreement; (ii) Guarantor has had the opportunity to examine
the records, reports, financial statements, and other information
relating to the financial condition of Borrower and the
Obligations; (iii) Guarantor has relied solely upon investigations
of Borrower's financial condition conducted by Guarantor or
Guarantor's authorized representative in deciding to execute this
Agreement; and (iv) Guarantor, or its authorized representative,
shall continue to independently review, monitor and investigate the
financial condition of Borrower and shall independently keep itself
informed of the terms of ▇▇▇▇▇▇▇▇'s present and future credit
facilities and other financial relationships with Bank while this
Agreement is in effect. Guarantor
specifically relieves Bank of any duty, obligation or
responsibility of any nature whatsoever to advise Guarantor of any
change in Borrower's financial condition or in the terms of
Borrower's present or future credit facilities and other financial
relationships with Bank.
5. Financial
Information and Reporting; Credit Reports. Guarantor
warrants that all financial information previously provided to Bank
is, and all financial information provided to Bank in the future
will be, complete and accurate and prepared in accordance with
Applicable Accounting Standards and that no material adverse change
has occurred in Guarantor's financial condition since such
information was provided to Bank. Guarantor acknowledges and agrees
that, in connection with Bank’s monitoring or enforcement of
this Agreement or the Obligations, Bank may from time to time
obtain from third party vendors credit reports and other
information concerning Guarantor's credit and employment history.
Guarantor covenants and agrees that while this Agreement is in
effect, Guarantor shall provide to Bank from time to time upon
request any information regarding Guarantor's financial condition
which Bank reasonably requests; and without request, Guarantor will
provide to Bank the following financial information, in form and
content acceptable to Bank:
Not
applicable.
6.
Financial Covenants. Not
applicable.
7. Financial
Definitions and Calculations. For purposes of Sections 5
through 7, the following terms shall have the meanings ascribed to
them below. Financial terms used in this Agreement which are not
specifically defined in this Agreement shall have the meanings
ascribed to them under Applicable Accounting Standards. To the
extent not inconsistent with Applicable Accounting Standards,
financial information expressed as a ratio or in a dollar amount
may be rounded to the nearest one-hundredth. For any Subject Party
who does not have a separate fiscal year for tax reporting
purposes, the fiscal year will be deemed to be the calendar year.
Bank’s calculations in determining compliance or
non-compliance by any Subject Party with any financial covenant
requirement shall be deemed final absent manifest
error.
"Applicable Accounting Standards" means
for any Subject Party which is not a natural person or the
revocable trust of a natural person, generally accepted accounting
principles or such other basis of accounting as may be acceptable
to Bank in its sole discretion; and for any Subject Party which is
a natural person or the revocable trust of a natural person, cash
basis accounting principles or such other basis of accounting as
may be acceptable to Bank in its sole discretion. For any given
Subject Party, Applicable Accounting Standards will be consistently
applied through the accounting periods involved.
"Subject Party" shall mean the party or
parties to which a particular financial covenant or financial
reporting requirement applies. If the Subject Party consists of
multiple persons and/or entities, such covenant shall be applied on
a combined basis and without duplication.
8. Collateral;
Setoff. Guarantor grants to Bank a security interest in all
property in which Guarantor has an ownership interest which is now
or in the future in the possession of Bank to secure payment under
this Agreement. Guarantor hereby authorizes Bank, without further
notice to anyone, to charge any account of Guarantor for the amount
of any and all Obligations due under this Agreement, and grants
Bank a contractual right to set off (without notice or demand) amounts due
hereunder against all accounts of Guarantor at Bank, and all other
property now or hereafter in the possession of Bank and the right
to refuse to allow withdrawals from any account (collectively
"Setoff").
As of
the date of this Agreement, this Agreement is also secured by any
and all security interests, pledges and other liens, if any,
against personal property now or hereafter in existence granted to
Bank to secure indebtedness of Guarantor to Bank, regardless of whether the Obligations are in
any way related to or of the same or different type or class as any
other indebtedness or obligations secured by any such liens, but
only if and to the extent that the instrument or agreement granting
any such lien by its terms secures this Agreement or by its
terms broadly secures all existing and/or future credit granted by
Bank to any Guarantor, to any Guarantor and others, to others
guaranteed, endorsed or otherwise secured by any Guarantor, or to
any debtor-in-possession or other successor-in-interest of any
Guarantor; provided, however, that liens originally granted
to secure only indebtedness of a natural person or the revocable
trust of a natural person incurred for personal, family or
household purposes shall not secure this Agreement.
-15-
9. Duration
of Guaranty; Revocation; Continuing Obligations. This is a
continuing guaranty and shall not be revoked by death, dissolution,
merger, bankruptcy, incompetency or insolvency of Guarantor. This
Agreement shall remain in full force and effect with respect to
Guarantor until Bank receives written notice from Guarantor
revoking this Agreement as to Guarantor. In the event that this
Agreement is revoked by Guarantor, said revocation shall have no
effect on the continuing liability of Guarantor to guarantee
unconditionally the prompt payment of all Obligations which are
contracted or incurred before the revocation becomes effective,
including such prior Obligations which are subsequently renewed,
modified or extended after the revocation becomes effective, as
well as all extensions of credit made after revocation pursuant to
commitments made prior to such revocation. Revocation of this
Agreement by any Guarantor shall not relieve any other Guarantor of
any liability hereunder after the effective date of such
revocation.
10. Acceleration
of Obligations. If (i) any Guarantor which is a natural
person shall die, (ii) any Guarantor which is a corporation,
limited liability company, partnership, limited partnership or
other legal entity shall cease to exist, (iii) any event shall
occur which results in or requires the liquidation, dissolution or
winding up of any Guarantor which is a corporation, limited
liability company, partnership, limited partnership or other legal
entity, (iv) any Guarantor shall become the subject of any
incompetency, bankruptcy or insolvency proceedings, (v) any
Guarantor which is a corporation, limited liability company,
partnership, limited partnership or other legal entity shall amend
its organizational documents in a manner that may conflict with any
term or condition of the Loan Documents, or (vi) the settlor of or
any court having jurisdiction over any Guarantor which is a trust
revokes such trust, in whole or part, or modifies the terms of such
trust in a manner that may conflict with any term or condition of
the Loan Documents; in any such case, Guarantor's liability
hereunder to pay the Obligations shall become immediately due and
payable whether or not the Obligations are then due and payable by
Borrower or any other guarantor.
11. Additional
Terms: The warranties, covenants, conditions and other terms
described in this Section are incorporated into this
Agreement.
Not
Applicable.
12. Prior
Agreements. Unless and except to the extent that (a) this
Agreement specifically provides that it amends and restates an
earlier guaranty or (b) Bank shall hereafter expressly agree in
writing to limit the effectiveness of this Agreement, the effect of
any earlier or later guaranty by Guarantor shall be cumulative with
this Agreement, and all guaranties by Guarantor shall be construed
to provide Bank with the broadest possible scope and amount of
guaranteed obligations.
13. Relationship
to Other Documents. The warranties, representations,
covenants and other obligations of Guarantor (and the rights and
remedies of Bank) that are outlined in this Agreement and the other
Loan Documents are intended to supplement each other. In the event
of any inconsistencies in any of the terms in the Loan Documents,
all terms will be cumulative so as to give Bank the most favorable
rights set forth in the conflicting documents, except that if there
is a direct conflict between any preprinted terms and any
transaction-specific terms (whether included in an additional terms
section, addendum or otherwise), the transaction-specific terms
will control. Furthermore, Guarantor has had an opportunity to
fully review this Agreement and the other Loan Documents to which
Guarantor is a party, and accordingly, Guarantor and Bank waive any
presumption or rule requiring construction of this Agreement and
the other Loan Documents against the drafter.
14. Further
Assurances. Guarantor shall promptly correct any defect or
error that may be discovered in any Loan Document or in the
execution, acknowledgment or recordation of any Loan Document.
Promptly upon request by Bank, Guarantor also shall do, execute,
acknowledge, deliver, record, re-record, file, re-file, register
and re-register, any and all deeds, conveyances, mortgages, deeds
of trust, trust deeds, assignments, estoppel certificates,
financing statements and continuations thereof, notices of
assignment, transfers, certificates, assurances and other
instruments, and must take or cause to be taken such further
actions, that may be required by law or by Bank, all in form and
substance satisfactory to Bank in its sole discretion and all at
the expense of Guarantor: (a) to carry out more effectively the
purposes of the Loan Documents; (b) to perfect and maintain the
validity, effectiveness and priority of any security interests
intended to be created by the Loan Documents; (c) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm the
rights granted or intended to be granted to Bank in connection with
any Loan Document; and (d) to carry out the intention or facilitate
the performance of the provisions of any Loan Document. Guarantor
shall furnish to Bank evidence satisfactory to Bank of every such
recording, filing or registration.
15. Notices.
For purposes of this Agreement and the other Loan Documents, notice
of any record shall be deemed delivered when the record has been
(a) deposited in the United States Mail, postage pre-paid, (b)
received by overnight delivery service, (c) received by telex, (d)
received by telecopy, (e) received through the internet, or (f)
when personally delivered.
16. Successors;
Assignment; Disclosure. The rights, options, powers and
remedies granted in this Agreement and the other Loan Documents
shall be binding upon Guarantor and Bank and their respective
successors and assigns, and shall inure to the benefit of Bank and
the successors and assigns of Bank, including without limitation
any purchaser of any or all of the rights and obligations of Bank
under the Loan Documents. Bank may, in connection with any sale or
potential sale of all or any interest in the rights and obligations
of Bank under the Loan Documents, disclose any financial or other
information Bank may have concerning Guarantor, whether provided by
Guarantor or obtained from Bank's vendors or other sources, to any
purchaser or potential purchaser of such rights and/or
obligations. Guarantor may not assign its rights or Obligations
under this Agreement or any other Loan Documents without the prior
written consent of Bank.
-16-
17. Copies;
Entire Agreement; Modification. Guarantor hereby
acknowledges the receipt of a copy of this Agreement. Without
notice to or consent of Guarantor, Bank may create electronic
images of this Agreement and destroy paper originals of any such
imaged documents. Such images have the same legal force and effect
as the paper originals and are enforceable against Guarantor and
any other parties thereto. Bank may convert any Loan Document into
a "transferrable record" as such term is defined under, and to the
extent permitted by, applicable law, with the image of such
instrument in Bank's possession constituting an "authoritative
copy." If Bank agrees, in its sole discretion, to accept delivery
by telecopy or PDF of an executed counterpart of a signature page
of any Loan Document or other document required to be delivered
under the Loan Documents, such delivery will be valid and effective
as delivery of an original manually executed counterpart of such
document for all purposes. If Bank agrees, in its sole discretion,
to accept any electronic signatures of any Loan Document or other
document required to be delivered under the Loan Documents, the
words "execution," "signed," and "signature," and words of like
import, in or referring to any document so signed will be deemed to
include electronic signatures and/or the keeping of records in
electronic form, which will be of the same legal effect, validity
and enforceability as a manually executed signature and/or the use
of a paper-based recordkeeping system, to the extent and as
provided for in any applicable law. Bank may rely on any such
electronic signatures without further inquiry.
IMPORTANT:
READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING AND SIGNED BY THE
PARTIES ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE
TERMS OF THIS AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO ALL
OTHER LOAN DOCUMENTS NOW IN EFFECT BETWEEN GUARANTOR AND BANK. A
MODIFICATION OF ANY LOAN DOCUMENT NOW IN EFFECT BETWEEN GUARANTOR
AND BANK, WHICH OCCURS AFTER RECEIPT BY GUARANTOR OF THIS NOTICE,
MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO SUCH LOAN DOCUMENTS ARE NOT ENFORCEABLE AND SHOULD
NOT BE RELIED UPON.
18. USA
PATRIOT Act. IMPORTANT INFORMATION ABOUT PROCEDURES FOR
OPENING A NEW ACCOUNT. Bank hereby notifies Borrower, any guarantor
and any pledgor of collateral (each of Borrower, any guarantor and
any pledgor of collateral, a "Loan
Party") that, pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), as amended from time to time, and any successor statute
(the "PATRIOT Act"), it may
be required to obtain, verify and record information that
identifies such Loan Party, which information includes the name and
address of such Loan Party and other information that will allow
Bank to identify such Loan Party in accordance with the PATRIOT
Act.
19. Organization
and Authority; Litigation. This Agreement and the other Loan
Documents are the legal, valid and binding obligations of
Guarantor, enforceable against Guarantor in accordance with their
terms. The execution, delivery and performance of this Agreement
and all other Loan Documents to which Guarantor is a party (i) are
within Guarantor's power; (ii) do not require the approval of any
governmental agency; and (iii) will not violate any law, agreement
or restriction by which Guarantor is bound. Guarantor has all
requisite power and authority and possesses all licenses necessary
to conduct its business and own its properties. Each Guarantor
which is not a natural person is validly existing and in good
standing under the laws of its state of organization, and this
Agreement and all other Loan Documents to which any such Guarantor
is a party have been authorized by all appropriate entity action.
There is no litigation or administrative proceeding threatened or
pending against Guarantor which would, if adversely determined,
have a material adverse effect on Guarantor's financial condition
or its property.
20. Communication
By Cellular Phone or Other Wireless Device. By providing
Bank with a telephone number for a cellular phone or other wireless
device, including a number that Guarantor later converts to a
cellular number, Guarantor is expressly consenting to receiving
communications - including but not limited to prerecorded or
artificial voice message calls, text messages, and calls made by an
automatic telephone dialing system - from Bank and Bank's
affiliates and agents at that number. This express consent applies
to each such telephone number that Guarantor provides to Bank now
or in the future and permits such calls for non-marketing purposes.
Calls and messages may incur access fees from Guarantor's cellular
provider.
21. Applicable
Law and Jurisdiction; Interpretation; Joint Liability;
Severability. For purposes of this Agreement and all other
Loan Documents, Guarantor acknowledges that the parties are relying
upon the applicability and effectiveness of federal law which
preempts, or provides an alternative or alternatives to, otherwise
applicable state law. Absent such federal preemption, this
Agreement and all other Loan Documents, unless otherwise provided
therein, shall be governed by and interpreted in accordance with
the internal laws of the State of Utah. Guarantor acknowledges that
all other Loan Documents will be governed by and interpreted in
accordance with the internal laws of the State of Utah, the state
in which the loan facility or other extension of credit was
originated. GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION
OF ANY COUNTY, STATE OR FEDERAL COURT SITUATED IN THE STATE OF
UTAH, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS, WITH
REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO
THIS AGREEMENT, THE COLLATERAL, ANY OTHER LOAN DOCUMENT, OR ANY
TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING. Nothing herein shall affect
Bank's rights to serve process in any manner permitted by law, or
limit Bank's right to bring proceedings against Guarantor in the
competent courts of any other jurisdiction or jurisdictions. This
Agreement, the other Loan Documents and any amendments thereto
(regardless of when executed) shall be deemed effective and
accepted only at Bank's offices, and only upon Bank's receipt of
the executed originals thereof. If there is more than one
Guarantor, the liability of Guarantors under this Agreement and all
other Loan Documents shall be joint and several, and any reference
to a party in the singular shall be deemed to refer to each and all
such parties. Invalidity of any provision of this Agreement or any
other Loan Document shall not affect the validity of any other
provision.
-17-
22. Waiver
of Jury Trial. TO THE EXTENT PERMITTED BY LAW, GUARANTOR AND BANK
HEREBY JOINTLY AND SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ALL
DOCUMENTS RELATING TO THIS AGREEMENT, THE OBLIGATIONS THEREUNDER OR
ANY TRANSACTION ARISING THEREFROM OR CONNECTED THERETO. GUARANTOR
AND BANK EACH REPRESENTS TO THE OTHER THAT THIS WAIVER IS
KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
23. Attachments.
All documents attached hereto, including any Appendices, Schedules,
Riders, and Exhibits to this Agreement, are hereby expressly
incorporated by reference.
Dated
as of: September 30, 2021. GUARANTOR:
ReposiTrak,
Inc.
a/an
Utah
Corporation
By:/s/ ▇▇▇▇
▇▇▇▇▇▇▇
Name
and
Title:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇, Chief Financial
Officer
GUARANTOR ADDRESS:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-18-