BUSINESS LOAN AGREEMENT (ASSET BASED)
Principal Loan Date Maturity Loan No Call/Coil Account Officer Initials
--------- --------- -------- ------- ----------------- ----------------
$1,500,000.00 02/13/02 2/16/03 2921 JMA
References in the shaded area are for Lender's use only and do not limit
the applicability of this document to any particular loan or item.
Borrower: THE COEUR D'ALENES COMPANY Lender: Inland Northwest Bank
P. O. BOX 2610 ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇.
SPOKANE, WA 99220-2610 Spokane, WA 99201
THIS BUSINESS LOAN AGREEMENT (ASSET BASED) dated February 13, 2002, is made and
executed between THE COEUR D'ALENES COMPANY ("Borrower") and inland Northwest
Bank ("Lender") on the following terms and conditions. Borrower has received
prior commercial loans from Lender or has applied to Lender for a commercial
loan or loans or other financial accommodations, including those which may be
described on any exhibit or schedule attached to this Agreement ("Loan").
▇▇▇▇▇▇▇▇ understands and agrees that: (A) in granting, renewing, or extending
any Loan, Lender is relying upon Borrower's representations, warranties, and
agreements as set forth in this agreement; (B) the granting, renewing, or
extending of any Loan by ▇▇▇▇▇▇ at all times shall be subject to ▇▇▇▇▇▇'s sole
judgment and discretion; and (C) all such Loans shall be and remain subject to
the terms and conditions of this Agreement.
TERM. This Agreement shall be affective as of February 13, 2002, and shall
continue in full force and effect until such time as all of Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until February 16,
2003.
LINE OF CREDIT. ▇▇▇▇▇▇ agrees to make Advances to Borrower from time to time
from the date of this Agreement to the Expiration Date, provided the aggregate
amount of such Advances outstanding at any time does not exceed the Borrowing
Base. Within the foregoing limits, Borrower may borrow, partially or wholly
prepay, and reborrow under this Agreement as follows:
Conditions Precedent to Each Advance. ▇▇▇▇▇▇'s obligation to make any
Advance to or for the account of Borrower under this Agreement is subject to the
following conditions precedent, with all documents, instruments, opinions,
reports, and other items required under this Agreement to be in form and
substance satisfactory to Lender:
(1) Lender shall have received evidence that this Agreement and all Related
Documents have been duly authorized, executed, and delivered by ▇▇▇▇▇▇▇▇ to
Lender.
(2) Lender shall have received such opinions of counsel, supplemental
opinions, and documents as ▇▇▇▇▇▇ may request.
(3) The security interests in the Collateral shall have been duly
authorized, created, and perfected with first lien priority and shall be in full
force and effect.
(4) All guaranties required by Lender for the credit facility(ies) shall
have been executed by each Guarantor, delivered to Lender, and be in full force
and effect.
(5) Lender, at its option and for its sole benefit, shall have conducted an
audit of Borrower's Accounts, Inventory, books, records, and operations, and
Lender shall be satisfied as to their condition.
(B) Borrower shall have paid to Lender all fees, costs, and expenses
specified in this Agreement and the Related Documents as are then due and
payable.
O) There shall not exist at the time of any Advance a rendition which would
constitute an Event of Default under this Agreement, and Borrower shall have
delivered to Lander the compliance certificate called for in the paragraph below
titled "Compliance Certificate"
Making Loan Advances. Advances under this credit facility, as well as
directions for payment from ▇▇▇▇▇▇▇▇'s accounts, may be requested orally or in
writing by authorized persons. Lender may, but need not, require that all oral
requests be confirmed in writing. Each Advance shall be conclusively deemed to
have been made at the request of and for the benefit of Borrower (1) when
credited to any deposit account of Borrower maintained with Lender or(2) when
advanced in accordance with the instructions of an authorized person. Lender, at
its option, may set a cutoff time, after which all requests for Advances will be
treated as having been requested on the next succeeding Business Day.
Mandatory Loan Repayments. If at any time the aggregate principal amount of
the outstanding Advances shall exceed the applicable Borrowing Base, Borrower,
immediately upon written or oral notice from Lender, shall pay to Lender an
amount equal to the difference between the outstanding principal balance of the
Advances and the Borrowing Base. On the Expiration Date, Borrower shall pay to
Lender in full the aggregate unpaid principal amount of all Advances then
outstanding and all accrued unpaid interest, together with all other applicable
fees, costs and charges, if any, not yet paid.
Loan Account. Lender shall maintain on its books a record of account in
which Lender shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the credit facility. Lender
shall provide Borrower with periodic statements of ▇▇▇▇▇▇▇▇'s account, which
statements shall be considered to be correct and conclusively binding on
Borrower unless Borrower notifies Lender to the contrary within thirty (30) days
alter Borrower's receipt of any such statement which Borrower deems to be
incorrect.
COLLATERAL. To secure payment of the Primary Credit Facility and performance of
all other Loan, obligations and duties owed by Borrower to Lender, Borrower (and
others, if required) shall grant to Lender Security interests in such property
and assets as Lender may require. Lender's Security Interests in the Collateral
shall be continuing liens and shall include the proceeds and products of the
Collateral, including without limitation the proceeds of any insurance. With
respect to the Collateral, ▇▇▇▇▇▇▇▇ agrees and represents and warrants to
▇▇▇▇▇▇:
Perfection of Security Interests. ▇▇▇▇▇▇▇▇ agrees to execute financing
statements and all documents perfecting ▇▇▇▇▇▇'s Security interest and to take
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whatever other actions are requested by ▇▇▇▇▇▇ to perfect and continue ▇▇▇▇▇▇'s
Security interests in the Collateral. Upon request of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ will
deliver to Lender any and all of the documents evidencing or constituting the
Collateral, and Borrower will note ▇▇▇▇▇▇'s interest upon any and all chattel
paper and instruments if not delivered to Lender for possession by ▇▇▇▇▇▇.
Contemporaneous with the execution of this Agreement, ▇▇▇▇▇▇▇▇ will execute one
or more UCC financing statements and any similar statements as may be required
by applicable law, and Lender will file such financing statements and all such
similar statements in the appropriate location or locations. Borrower hereby
appoints ▇▇▇▇▇▇ as its irrevocable attorney-in-fact for the purpose of executing
any documents necessary to perfect or to continue any Security Interest. Lender
may al any time, and without further authorization from Borrower, file a carbon,
photograph, facsimile, or other reproduction or any financing statement for use
as a financing statement. Borrower will reimburse Lender for all expenses for
the perfection, termination, and the continuation of the perfection of ▇▇▇▇▇▇'s
security interest in the Collateral. Borrower promptly will notify Lender before
any change in ▇▇▇▇▇▇▇▇'s name including any change to the assumed business names
of ▇▇▇▇▇▇▇▇. Borrower also promptly will notify Lender before any change in
Borrower's Social Security Number or Employer Identification Number. ▇▇▇▇▇▇▇▇
further agrees to notify ▇▇▇▇▇▇ in writing prior to any change in address or
location of ▇▇▇▇▇▇▇▇'s principal governance office or should Borrower merge or
consolidate with any other entity
Collateral Records. Borrower ▇▇▇▇ now, and at all times hereafter shall,
keep correct and accurate records of the Collateral, all of which records shall
be available to Lender or Lender's representative upon demand for inspection and
copying at any reasonable time. With respect to the Accounts, ▇▇▇▇▇▇▇▇ agrees to
keep and maintain such records as Lender may require, including without
limitation information concerning Eligible Accounts and Account balances and
agings. Records related to Accounts (Receivables) are or will be located at.
With respect to the inventory, ▇▇▇▇▇▇▇▇ agrees to keep and maintain such records
as Lender may require, including without limitation information concerning
Eligible Inventory and records itemizing and describing the kind, type, quality,
and quantity of inventory, Borrower's inventory costs and selling prices, and
the daily withdrawals and additions to Inventory. Records related to inventory
are or will be located at. The above is an accurate and complete list of all
locations at which Borrower keeps or maintains business records concerning
▇▇▇▇▇▇▇▇'s collateral.
Collateral Schedules. Concurrently with the execution and delivery of this
Agreement, ▇▇▇▇▇▇▇▇ shall execute and deliver to Lender schedules of . Accounts
and inventory and schedules of Eligible Accounts and Eligible inventory in form
and substance satisfactory to the Lender. Thereafter supplemental schedules
shall be delivered according to the following schedule:
Representations and Warranties Concerning Accounts. With respect to the
Accounts, Borrower represents and warrants to Lender: (1) Each Account
represented by Borrower to be an Eligible Account for purposes of this Agreement
conforms to the requirements of the definition of an Eligible Account: (2) All
Account information listed on schedules delivered to Lender will be hue and
correct, subject to immaterial variance; and (3) Lender, its assigns, or agents
shall have the right at any time and at Borrower's expense to inspect, examine,
and audit ▇▇▇▇▇▇▇▇'s records and to confirm with Account Debtors the accuracy of
such Accounts.
Representations and Warranties Concerning Inventory. With respect to the
inventory, Borrower represents and warrants to Lender: (1) All Inventory
represented by Borrower to be Eligible inventory for purposes of this Agreement
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conforms to the requirements of the definition of Eligible Inventory; (2) All
inventory values listed on schedules delivered to Lender will be true and
correct, subject to immaterial variance; (3) The value of the inventory will be
determined on a consistent accounting basis; (4) Except as agreed to the
contrary by ▇▇▇▇▇▇ in writing, all Eligible Inventory is now and at all times
hereafter will be in Borrower's physical possession and shall not be held by
others on consignment, sale on approval, or sale or return; (5) Except as
reflected in the inventory schedules delivered to Lender, all Eligible Inventory
is now and at all times hereafter will be of good and merchantable quality, free
from defects; [6) Eligible inventory is not now and will not at any time
hereafter be stored
Page 2
With a bailee, warehouseman, or similar party without ▇▇▇▇▇▇'s prior written
consent, and, in such event, Borrower will concurrently at the time of bailment
cause any such bailee, warehouseman, or similar party to issue and deliver to
Lender, in form acceptable to Lender, warehouse receipts in Lender name
evidencing the storage of Inventory; and (7) Lender, its assigns, or agents
shall have the right at any time and at Borrower's expense to inspect and
examine the Inventory and to check and test the same as to quality, quantity,
value and condition.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to ▇▇▇▇▇▇'s satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following documents
for the Loan: (1) the Note; (2) Security Agreements granting to Lender security
interests in the Collateral; (3) financing statements and all other documents
perfecting Lender's Security Interest; (4) evidence of insurance as required
below; (5) together with all such Related Documents as Lender may require for
the Loan; all in form and substance satisfactory to Lender and Lender's counsel.
Borrower's Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and the
Related Documents. In addition, Borrower shall have provided such other
resolutions, authorizations documents and instruments as Lender or its counsel
may require.
Fees and Expenses Under This Agreement. Borrower shall have paid to Lender
all fees, costs, and expenses specified in this Agreement and the Related
Documents as are then due and payable.
Representations and Warranties. Borrow represents and warrants to Lender,
as of the date of this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a
condition would constitute an Event of Default under this Agreement or under any
Related Document.
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REPRESENTATIONS AND WARRANTIES. Borrow represents and warrants to Lender, as of
the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing under and
by virtue of the laws of the State of Idaho. Borrower is duly authorized to
transact business in the State of Washington and all other states in which
Borrower is doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign corporation in all states in which the failure to so qualify would have
a material adverse effect on its business or financial condition. Borrower has
the full power and authority to own its properties and to transact the business
in which it is presently engaged or presently proposes to engage. Borrower
maintains its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇. Unless
Borrower has designated otherwise in writing, this is the principal office at
which Borrower keeps its books and records including its records the Collateral.
Borrower will notify Lender prior to any change in the location of Borrower's
state of organization or any changes in Borrower's name. Borrower shall do all
things necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to Borrower and ▇▇▇▇▇▇▇▇'s business activities.
Assumed Business Names. ▇▇▇▇▇▇▇▇ has filed or recorded all documents or
filings required by law relating to all assumed business names used by ▇▇▇▇▇▇▇▇.
Excluding the name of ▇▇▇▇▇▇▇▇, the following is a complete list of all assumed
business names under which Borrower does business. None.
Authorization. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a violation of,
or constitute a default under (1) any provision of Borrower's articles of
incorporation or organization, or bylaws, or any agreement or other instrument
binding upon Borrower or (2) any law, governmental regulation, court decree, or
order applicable to Borrower or to Borrower's properties.
Financial Information. Each of ▇▇▇▇▇▇▇▇'s financial statements supplied to
▇▇▇▇▇▇ truly and completely disclosed ▇▇▇▇▇▇▇▇'s financial condition as of the
date of the statement, and there has been no material adverse change in
▇▇▇▇▇▇▇▇'s financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will constitute
legal, valid, and binding obligations of Borrower enforceable against Borrower
in accordance with their respective terms.
Properties. Except as contemplated by this Agreement or as previously
disclosed in ▇▇▇▇▇▇▇▇'s financial statements or in writing to Lender and as
accepted by ▇▇▇▇▇▇, and except for property tax liens for taxes not presently
due and payable, Borrower owns and has good title to all of Borrower's
properties free and clear of all Security interests, and has not executed any
security documents or financing statements relating to such properties. All of
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▇▇▇▇▇▇▇▇'s properties are titled in ▇▇▇▇▇▇▇▇'s legal name, and ▇▇▇▇▇▇▇▇ has not
used or filed a financing statement under any other name for at least the last
five (5) years.
Hazardous Substances. Except as disclosed to and acknowledged by ▇▇▇▇▇▇ in
writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from any of
the Collateral. (2) Borrower has no knowledge of, or reason to believe that
there has been (a) any breach or violation of any Environmental Laws; (b) any
use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any
actual or threatened litigation or claims of any kind by any person relating to
such matters. (3) Neither Borrower nor any tenant, contractor, agent or other
authorized user of any of the Collateral shall use, generate, manufacture,
store, treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation all Environmental Laws. Borrower
authorizes Lender and its agents to enter upon the Collateral to make such
inspections and tests as Lender may deem appropriate to determine compliance of
the Collateral with this section of the Agreement. Any inspections or tests made
by Lender shall be at Borrower's expense and for Lender's purposes only and
shall not be construed to create any responsibility or liability on the part of
Lender to Borrower or to any other person. The representations and warranties
contained herein are based on Borrower's due diligence in investigating the
Collateral for hazardous waste and Hazardous Substances. Borrower hereby (1)
releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (2) agrees to indemnify and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or suffer resulting
from a breach of this section of the Agreement or as a consequence of any use,
generation, manufacture, storage, disposal, release or threatened release of a
hazardous waste or substance on the Collateral. The provisions of this section
of the Agreement, including the obligation to indemnify, shall survive the
payment of the Indebtedness and the termination, expiration or satisfaction of
this Agreement and shall not be affected by ▇▇▇▇▇▇'s acquisition of any interest
in any of the Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Borrower
is pending or threatened, and no other event has occurred which may materially
adversely affect Borrower's financial condition or properties, other than
litigation, claims, or other events, if any, that have been disclosed to and
acknowledged by ▇▇▇▇▇▇ in writing.
Taxes. To the best of ▇▇▇▇▇▇▇▇'s knowledge, all of ▇▇▇▇▇▇▇▇'s tax returns
and reports that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full, except
those presently being or to be contested by Borrower in good faith in the
ordinary course of business and for which adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing,
▇▇▇▇▇▇▇▇ has not entered into or granted any Security Agreements, or permitted
6
the filing or attachment of any Security interests on or affecting any of the
Collateral directly or indirectly securing repayment of Borrower's Loan and
Note, that would be prior or that may in any way be superior to Lender's
Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any),
and all Related Documents are binding upon the signers thereof, as well as upon
their successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with ▇▇▇▇▇▇ that, so long
as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform ▇▇▇▇▇▇ in writing of (1)
all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial condition
of any Guarnator.
Financial Records. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit ▇▇▇▇▇▇ to examine and audit ▇▇▇▇▇▇▇▇'s
books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, ▇▇▇▇▇▇▇▇'s balance sheet and
income statement for the year ended, audited by a certified public accountant
satisfactory to Lender.
BUSINESS LOAN AGREEMENT (ASSET BASED)
loan No: 2921-001 (Continued) Page 3
Interim Statements. As soon as available, but in no event later than 15
days after the end of each fiscal quarter, ▇▇▇▇▇▇▇▇'s balance sheet and profit
and loss statement for the period ended, prepared by ▇▇▇▇▇▇▇▇.
Additional Requirements. BANK REQUIRES RECEIPT OF MONTHLY BORROWING BASE
CERTIFICATES AND A/R & A/P AGINGS QUARTERLY.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements,
as ▇▇▇▇▇▇ may request from time to time. Financial Covenants and Ratios. Comply
with the following covenants and ratios:
Working Capital Requirements. Maintain Working Capital in excess of
$1,500,000.00. In addition, Borrower shall comply with the following working
capital ratio requirements:
CURRENT RATIO Ratio. Maintain a ratio of CURRENT RATIO in excess of 1.500
to 1.000. The term "Current Ratio" means Borrower's total Current Assets divided
by Borrower's total Current Liabilities. This liquidity ratio will be evaluated
as of year-end.
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Minimum Income and Cash flow Requirements.
Tangible Net Worth Requirements. Maintain a minimum Tangible Net Worth of
not less than: $2,200,000.00.
Other Requirements. INVESTMENT IN FIXED ASSETS LIMITED TO $250,000.00
ANNUALLY
THE COMPANY MUST MAINTAIN ITS DEBT TO TOTAL EQUITY RATIO BELOW 2.0 TO 1.0.
Except as provided above, all computations made to determine compliance
with the requirements contained in this paragraph shall be made in accordance
with generally accepted accounting principles, applied on a consistent basis,
and certified by Borrower as being true and correct.
Insurance. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies acceptable to Lender. Borrower, upon request of ▇▇▇▇▇▇, will
deliver to Lender from time to time the policies or certificates of insurance in
form satisfactory to Lender, including stipulations that coverages will not be
cancelled or diminished without at least ten (10) days prior written notice to
Lender. Each insurance policy also shall include an endorsement providing that
coverage in favor of Lender will not be impaired in any way by any act, omission
or default of Borrower or any other person. In connection with all policies
covering assets in which Lender holds or is offered a security interest for the
Loans, Borrower will provide Lender with such lender's loss payable or other
endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties
insured; (5) the then current property values on the basis of which insurance
has been obtained, and the manner of determining those values; and (6) the
expiration date of the policy. In addition, upon request of Lender (however not
more often than annually), Borrower will have an independent appraiser
satisfactory to Lender determine, as applicable, the actual cash value or
replacement cost of any Collateral. The cost of such appraisal shall be paid by
Borrower.
Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any other
party and notify Lender immediately in writing of any default in connection with
any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for ▇▇▇▇▇▇▇▇'s business
operations, unless specifically consented to the contrary by ▇▇▇▇▇▇ in writing.
Taxes, Charges and Liens. Pay end discharge when due all of its
indebtedness and obligations, including without limitation all assessments,
taxes, governmental charges, levies and liens, of every kind and nature, imposed
upon Borrower or its properties, income, or profits, prior to the date on which
penalties would attach, and all lawful claims that, if unpaid, might become a
lien or charge upon any of Borrower's properties, income, or profits.
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Performance. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower and
Lender. Borrower shall notify ▇▇▇▇▇▇ immediately in writing of any default in
connection with any agreement.
Operations. Maintain executive and management personnel with substantially
the same qualifications and experience as the present executive and management
personnel; provide written notice to Lender of any change in executive and
management personnel; conduct its business affairs in a reasonable end prudent
manner.
Environmental Studies. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may be
requested by Lender or any governmental authority relative to any substance, or
any waste or by-product of any substance defined as toxic or a hazardous
substance under applicable federal, state, or local law, rule, regulation, order
or directive, at or affecting any property or any facility owned, leased or used
by Borrower.
Compliance with Governmental Requirements. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all governmental
authorities applicable to the conduct of Borrower's properties, businesses and
operations, and to the use or occupancy of the Collateral, including without
limitation, the Americans With Disabilities Act. Borrower may contest in good
faith any such law, ordinance, or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Borrower has notified
Lender in writing prior to doing so and so long as, in ▇▇▇▇▇▇'s sole opinion,
▇▇▇▇▇▇'s interests in the Collateral are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect ▇▇▇▇▇▇'s interest.
Inspection. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and ▇▇▇▇▇▇▇▇'s other
properties and to examine or audit ▇▇▇▇▇▇▇▇'s books, accounts, and records and
to make copies and memoranda of ▇▇▇▇▇▇▇▇'s books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records end computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
request of ▇▇▇▇▇▇, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of any records
it may request, all at Borrower's expense.
Compliance Certificates. Unless waived in writing by ▇▇▇▇▇▇, provide Lender
within ten (10) days after the end of each month, with a certificate executed by
▇▇▇▇▇▇▇▇'s chief financial officer, or other officer or person acceptable to
Lender, certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and further
certifying that, as of the dateof the certificate, no Event of Default exists
under this Agreement.
Environmental Compliance and Reports. Borrower shall comply in all respects
with any and all Environmental Laws; not cause or permit to exist, as a result
of an intentional or unintentional action or omission on Borrower's part or on
the part of any third party, on property owned and/or occupied by Borrower, any
environmental activity where damage may result to the environment, unless such
9
environmental activity is pursuant to end in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within thirty
(30) days after receipt thereof a copy of any notice, summons, lien, citation,
directive, letter or other communication from any governmental agency or
instrumentality concerning any intentional or unintentional action or omission
on Borrower's part in connection with any environmental activity whether or not
there is damage to the environment and/or other natural resources.
Additional Assurances Make, execute, and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments, financing
statements, instruments, documents and other agreements as Lender or its
attorneys may reasonably request to evidence and secure the Loans and to perfect
all Security Interests.
▇▇▇▇▇▇'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect ▇▇▇▇▇▇'s interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by ▇▇▇▇▇▇▇▇. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
BUSINESS LOAN AGREEMENT (ASSET BASED)
Loan No: 2921-001 (Continued)
Page 4
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge, lease,
grant a security interest in, or encumber any of Borrower's assets (except as
allowed as Permitted Liens), or (3) sell with recourse any of Borrower's
accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged, (2)
cease operations, liquidate, merge, transfer, acquire or consolidate with any
10
other entity, change its name, dissolve or transfer or sell Collateral out of
the ordinary course of business, or (3) pay any dividends on Borrower's stock
(other than dividends payable in its stock), provided, however that
notwithstanding the foregoing, but only so long as no Event of Default has
occurred and is continuing or would result from the payment of dividends, if
Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue
Code of 1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the shareholders
to pay income taxes and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from their status as
Shareholders of a Subchapter S Corporation because of their ownership of shares
of Borrower's stock, or purchase or retire any of Borrower's outstanding shares
or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or
assets, (2) purchase, create or acquire any interest in any other enterprise or
entity, or (3) incur any obligation as surety or guarantor other than in the
ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. ▇▇▇▇▇▇▇▇ authorizes ▇▇▇▇▇▇, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at ▇▇▇▇▇▇'s option, to
administratively freeze all such accounts to allow Lender to protect ▇▇▇▇▇▇'s
charge and setoff rights provided in this paragraph.
DEFAUT. Each of the following shall constitute an Event of Default under this
Agreement: Payment Default. ▇▇▇▇▇▇▇▇ fails to make any payment when due under
the Loan.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of the
Related Documents or to comply with or to perform any term, obligation, covenant
or condition contained in any other agreement between Lender end Borrower.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Agreement or
the Related Documents is false or misleading in any material respect, either now
or at the time made or furnished or becomes false or misleading at any time
thereafter.
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Insolvency. The dissolution or termination of ▇▇▇▇▇▇▇▇'s existence as a
going business, the insolvency of ▇▇▇▇▇▇▇▇, the appointment of a receiver for
any part of ▇▇▇▇▇▇▇▇'s property, any assignment for the benefit of creditors,
any type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
Detective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any time
and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help, repossession
or any other method, by any creditor of Bonower or by any governmental agency
against any collateral securing the Loan. This includes a garnishment of any of
▇▇▇▇▇▇▇▇'s accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by ▇▇▇▇▇▇▇▇ as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives ▇▇▇▇▇▇ written notice of
the creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute.
Events Attacting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness. In the event of a death, Lender, at its option,
may, but shall not be required to, permit the Guarantor's estate to assume
unconditionally the obligations arising under the guaranty in a manner
satisfactory to Lender, and, in doing so, cure any Event of Default.
Change in Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or ▇▇▇▇▇▇ believes the prospect of payment or performance of the Loan
is impaired.
Right to Cure. If any default, other than a default on Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given a
notice of a similar default within the preceding twelve (12) months, it may be
cured (and no Event of Default will have occurred) if Borrower or Grantor, as
the case may be, after receiving written notice from Lender demanding cure of
such default: (1) cure the default within ten (10) days; or (2) if the cure
requires more than ten (10) days, immediately initiate steps which Lender deems
in Lender's sole discretion to be sufficient to cure the default and thereafter
continue and complete all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
12
described in the "Insohrsncy" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by ▇▇▇▇▇▇ to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not effect ▇▇▇▇▇▇'s
right to declare a default and to exercise its rights and remedies. MISCULANEOUS
PROVISIONS. The following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. ▇▇▇▇▇▇▇▇ agrees to pay upon demand all of
▇▇▇▇▇▇'s costs and expenses, including ▇▇▇▇▇▇'s attorneys' fees and ▇▇▇▇▇▇'s
legal expenses, incuned in connection with the enforcement of this Agreement.
Lender may hire or pay someone else to help enforce this Agreement, and Borrower
shall pay the costs and expenses of such enforcement. Costs and expenses include
▇▇▇▇▇▇'s attorneys' fees and legal expenses whether or not there Is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injuction),
appeals, and any anticipated post-judgement collection services. Borrower also
shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement.
Consent to Loan Participation. ▇▇▇▇▇▇▇▇ agrees and consents to ▇▇▇▇▇▇'s sale or
transfer, whether now or later, of one or more participation interests in the
Loan to one or more purchasers, or potential purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation whatsoever, to
any one or more purchasers, or potential purchasers, any information or
knowledge Lender may have about Borrower or about any other matter relating to
the Loan, and Borrower hereby waives any rights to privacy Borrower may have
with respect to such matters. Borrower additionally waives any and all notices
of sale of participation interests, as well as all notices of any repurchase of
such participation interests. ▇▇▇▇▇▇▇▇ also agrees that the purchasers of any
such participation interests will be considered as the absolute owners of such
interests in the Loan and will have all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all rights of offset or counterclaim that it
may have now or later against Lender or against any purchaser of such a
participation interest and unconditionally agrees that either Lender or such
purchaser may enforce ▇▇▇▇▇▇▇▇'s obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. ▇▇▇▇▇▇▇▇
further agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims or defenses that
Borrower may have against ▇▇▇▇▇▇.
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