Exhibit 10.90
LOAN AGREEMENT
THIS AGREEMENT, is made as of the 29th day of March, 2001, by and among XxxxxXxx
Technologies of Minnesota, Inc., a Minnesota corporation (the "Borrower"), and
Xxxxxx Business Finance Corporation, a Minnesota corporation (the "Lender").
WITNESSETH:
WHEREAS, the Borrower has requested the Lender to extend a real estate loan in
the original principal amount of Nine Hundred Fifty Thousand and 00/100 Dollars
($950,000.00) to provide financing in connection with property located at 00000
Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxx 00000 (the "Project"); and
WHEREAS, the Lender is willing and prepared to extend such a real estate loan to
the Borrower upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. REAL ESTATE LOAN. On the date hereof, the Lender has made a real estate
loan to the Borrower in the original principal amount of Nine Hundred
Fifty Thousand and 00/100 Dollars ($950,000.00) (the "Loan").
2. REAL ESTATE NOTE. The obligation of the Borrower to repay the Loan is
evidenced by that certain Real Estate Note of even date herewith executed
by the Borrower in the original principal amount of Nine Hundred Fifty
Thousand and 00/100 Dollars ($950,000.00) and payable to the order of the
Lender (the "Note").
3. MORTGAGE. As a condition precedent to the making by the Lender of the
Loan, the Borrower has executed and delivered to the Lender that certain
Mortgage, Security Agreement, Fixture Financing Statement and Assignment
of Leases and Rents of even date herewith (the "Mortgage") pursuant to
which the Borrower has granted a first mortgage lien and first security
interest in and to, and a first assignment of leases and rents with
respect to, the Project.
4. ENVIRONMENTAL AND ADA INDEMNIFICATION. Also as a condition precedent to
the making by the Lender of the Loan, the Borrower has executed and
delivered to the Lender that certain Environmental and ADA Indemnification
Agreement (the "Indemnification") of even date herewith.
5. GUARANTY. Also as a condition precedent to the making by the Lender of the
Loan, XxxxxXxx Technologies, Inc., a Delaware corporation ("Guarantor"),
has executed and delivered to the Lender that certain Corporate Guaranty
(the "Guaranty") of even date herewith.
6. ADDITIONAL CONDITIONS TO LENDING. In addition to the preconditions set
forth in Paragraphs 3, 4 and 5 of this Agreement, the obligation of the
Lender to make the Loan is subject to the following:
A. The Borrower Documents, shall be duly executed and delivered by
the Borrower.
B. Borrower and Guarantor shall provide the Lender with copies of
their organizational documents including Certificates of Good
Standing of the Borrower and the Guarantor, duly issued by the
Secretary of State of the State of Minnesota, and the State of
Delaware, respectively, copies of the Borrower's and Guarantor's
Articles of Incorporation, bylaws and any buy-sell agreements,
copies of the resolutions of both the Borrower and Guarantor,
authorizing the execution, delivery and performance of the Borrower
Documents, and the Guaranty, duly certified by an officer thereof.
C. an Opinion of Counsel for the Borrower and the Guarantor dated as
of the date of this Agreement and acceptable in form and substance
to the Lender.
D. The title documents, each of which shall be acceptable to the
Lender including (i) a fully paid mortgage's title insurance policy
issued by American Land Title Insurance Company in the amount equal
to the Loan insuring the Mortgage as a first lien on a good and
marketable fee simple title to the Project, subject only to
"Permitted Encumbrances" (as that term is defined in the Mortgage)
and, without limiting the generality of the foregoing, insuring the
mortgage against claims for mechanic liens, right of parties in
possession and matters which would be disclosed by comprehensive
survey and containing judgment, tax lien, assessment and bankruptcy
searches, a zoning endorsement, comprehensive endorsement and such
other endorsements as shall be requested by Lender, along with
written evidence of payment of all real estate taxes relating to the
land upon which the Project is situated, and all levied and pending
assessments relating to the Project (the "Title Documents").
E. Borrower shall have delivered to a Lender an appraisal reflecting
the value of the Project in the amount $1,265,000, which shall be
certified to Lender prior to disbursement of the loan proceeds.
7. REPRESENTATIONS. In order to induce the Lender to make the Loan, the
Borrower hereby warrants and represents to the Lender as follows:
A. Authority of Borrower. The Borrower has full power and authority to
execute and deliver this Agreement, the Note, the Mortgage, the Security
Agreement and the Indemnification, financing statements, along with all
other documents and agreements to be executed in connection therewith
(collectively, the "Borrower Documents") and to
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incur and perform its obligations thereunder; the execution, delivery and
performance by the Borrower of the Borrower Documents will not violate any
provision of any law, rule, regulation or court order or result in the
breach of, constitute a default under, or create or give rise to any lien
under, any indenture or other agreement or instrument to which the
Borrower is a party or by which the Borrower or its property may be bound
or affected.
B. Enforceability Against the Borrower. Each of the Borrower Documents
constitutes the legal, valid and binding obligation of the Borrower
enforceable in accordance with its respective terms (subject, as to
enforceability, to limitations resulting from bankruptcy, insolvency and
other similar laws affecting creditors' rights generally).
C. Financial Condition. The financial statements of the Borrower
heretofore furnished to the Lender are complete and correct in all
material respects and fairly present the financial condition of the
Borrower at the date of such statements. Since the most recent set of
financial statements delivered by the Borrower to the Lender, there have
been no material adverse changes in the financial condition of the
Borrower.
D. Litigation. There is no action, suit or proceeding pending or, to the
knowledge of the Borrower, threatened against or affecting either of the
Borrower which, if adversely determined, would have a material adverse
effect on the condition (financial or otherwise), business, properties or
assets of either of the Borrower or which would question the validity of
the Borrower Documents or any instrument, document or other agreement
related hereto or required hereby, or impair the ability of the Borrower
to perform their obligations under the foregoing agreements.
E. Licenses. The Borrower possess adequate licenses, permits, franchises,
patents, copyrights, trademarks and trade names, or rights thereto, to
conduct their business substantially as now conducted and as presently
proposed to be conducted.
F. Default. The Borrower is not in default of a material provision under
any agreement, instrument, decree or order to which it is a party or by
which it or its property is bound or affected.
G. Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, or notice to, any governmental
authority or any third party is required in connection with the execution
and delivery of the Borrower Documents or any of the agreements or
instruments herein mentioned relating to the Loan to which the Borrower is
a party or the carrying out or performance of any of the transactions
required or contemplated hereby or thereby or, if required, such consent,
approval, order or authorization has been obtained or such registration,
declaration or filing has been accomplished or such notice has been given
prior to the date hereof.
H. Taxes. The Borrower has filed all tax returns required to be filed and
either paid all taxes shown thereon to be due, including interest and
penalties, which are not being contested in good faith and by appropriate
proceedings, or provided adequate reserves for
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payment thereof, and the Borrower has no information or knowledge of any
objections to or claims for additional taxes in respect of federal income
or excess profits tax returns for prior years.
I. Titles, Etc. Borrower has good title to the Project, free and clear of
all mortgages, liens and encumbrances, except the Permitted Encumbrances
(as described in the Mortgage). The Mortgage constitutes a valid and
perfected first mortgage lien on the Project.
J. Judgments. There are no judgments outstanding or docketed against the
Borrower.
K. Project. The Project and the intended use thereof for the purpose and
in the manner contemplated by this Agreement are permitted by and will
comply in all material respects with all presently applicable use or other
restrictions and requirements in prior conveyances, zoning ordinances and
all development, pollution control, water conservation and other laws,
regulations, rules and ordinances of the United States and the State of
Minnesota and the respective agencies thereof, and the political
subdivision in which the Project is located.
L. Environmental. Except as disclosed in that certain Phase I
Environmental Report dated June 2, 1997, and Phase II Assessment dated
February, 1998 prepared by Rust Environment & Infrastructure as updated
and certified to Lender on March 24, 2001 (collectively, the
"Environmental Report") and small amounts of hazardous waste (i.e.,
batteries, fluorescent bulbs, parts washing solutions, etc) generated and
stored pursuant to a Very Small Quantity Generator Hazardous Waste License
("VSQG License"), to the best of its knowledge after due inquiry, no
pollutants or other toxic or hazardous waste or substances, including any
solid, liquid, gaseous, or thermal irritant or contaminant, such as smoke,
vapor, soot, fumes, acids, alkalis, chemicals or waste (including
materials to be recycled, reconditioned or reclaimed) (collectively
"substances") which is regulated by law, regulation, ordinance or code
have existed in, on or under any property of the Borrower, or have been
discharged, dispersed, released, stored, treated, generated, disposed of,
or allowed to escape (collectively referred to as an "incident") on any
property of the Borrower. The Borrower shall not nor shall it permit third
parties to cause an incident, shall take reasonable steps to ensure that
an incident does not occur, and shall promptly take all appropriate steps
to remedy an incident, in compliance with all local, state and federal
laws and regulations should an incident occur;
1. except as disclosed in the Environmental Report, no asbestos
or asbestos-containing materials have been installed, used,
incorporated into, or disposed of on any of the Borrower's
property;
2. except as disclosed in the Environmental Report, or as
contained in electrical transformers owned by Northern States
Power or as generated and stored pursuant to the VSQG License,
no polychlorinated biphenyls
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("PCBs") are located on or in any of the Borrower's property,
in the form of electrical transformers, fluorescent light
fixtures with ballasts, cooling oils, or any other device or
form;
3. except as disclosed in the Environmental Report, to the best
of its knowledge after due inquiry, no underground storage
tanks are located on any of the Borrower's property or were
located on the Borrower's property and subsequently removed or
filled, except those tanks that have been identified (by size,
location, age, substance contained therein, and whether in
existence, removed or filled) in writing to the Lender;
4. except as disclosed in the Environmental Report, no dump,
sanitary landfill or gasoline service station are or were
located on any of the Borrower's property;
5. except as disclosed in the Environmental Report, no
investigation, administrative order, consent order and
agreement, litigation, or settlement (collectively referred to
as the "action") including, but not limited to, proceedings or
actions commenced by any person (including, but not limited to
any federal, state, or local government or agency or entity
before any court or administrative agency) with respect to the
foregoing hazardous wastes or substances is proposed,
threatened, anticipated or in existence with respect to any of
the Borrower's property; and
6. except as disclosed in the Environmental Report, to the best
of its knowledge after due inquiry, the Project and the
Borrower's operations at the Project always have been and now
are in compliance with all applicable federal, state and local
statutes, laws and regulations. Except as disclosed in the
Environmental Report, no notice has been served on the
Borrower from any entity, governmental body, or individual
claiming any violation of any law, regulation, ordinance or
code, or requiring compliance with any law, regulation,
ordinance or code, or demanding payment or contribution for
environmental damage or injury to natural resources, or any
injury to human health
8. COVENANTS OF THE BORROWER. On and after the date hereof and until the
payment in full of the Note, and the performance of all other obligations
of the Borrower hereunder, the Borrower agree that, unless the Lender
shall otherwise consent in writing:
A. to keep, perform, enforce and maintain in full force and effect all of
the terms, covenants, conditions and requirements of the Borrower
Documents, and the Title Documents, not to amend, modify, supplement,
terminate, cancel or waive any of the terms, covenants, conditions or
requirements of any of said documents without the prior written consent of
the Lender;
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B. to create, permit to be created or to allow to exist, no liens, charges
or encumbrances on the Project (other than "Permitted Encumbrances" (as
defined in the Mortgage) and the lien of general real estate taxes and
pending and special assessments not yet due and payable) except for such
liens, charges and encumbrances which are being diligently contested in
good faith by appropriate proceedings and provided that, if requested by
the Lender, the Borrower shall have provided to the Lender security
satisfactory to the Lender as set forth in Section 1.3 of the Mortgage;
C. to obtain and maintain, or cause to be obtained and maintained, at all
times during the term of the Loan, if applicable (and, from time to time
at the request of the Lender, furnish the Lender with proof of payment of
premiums on):
1. comprehensive general liability insurance (including operations,
contingent liability, operations of subcontractors, complete
operations and contractual liability insurance) in such amount as
the Lender may require from time to time (but with coverage of not
less than $2,000,000/$1,000,000) and naming the Lender as an
additional insured;
2. hazard insurance, insuring against loss by fire, lightning,
vandalism, malicious mischief and other risks customarily covered by
a standard extended coverage endorsement, in an amount not less than
the Loan Amount or the full insurable value of the Project,
whichever is greater, and naming the Lender as mortgagee and loss
payee; and
3. flood insurance, if any of the Land is located in a "flood plain"
as defined by the Federal Insurance Administration, in the maximum
obtainable amount up to the Loan Amount, naming the Lender as loss
payee (unless an appropriate official of the city in which the Land
is located states in writing that all of the Land is not located in
a "flood plain" as defined by the Federal Insurance Administration);
such policies of insurance to be in form and content satisfactory to
the Lender and to be placed with insurers acceptable to the Lender
licensed to transact business in the State of Minnesota and to
contain an agreement of the insurer to give not less than thirty
(30) days' prior written notice to the Lender in the event of
cancellation, termination, amendment change or non-renewal of such
policy affecting the coverage thereunder; acceptance of such
insurance policies not to bar the Lender from requiring additional
insurance (either in type or amount) at a later date which it
reasonably deems necessary;
D. to give immediate notice to the Lender after the Borrower has knowledge
of the occurrence of an Event of Default, or an event which with the
giving of notice or lapse of time or both would constitute an Event of
Default, a statement signed by the Borrower setting forth details of such
Event of Default or event and the action which the Borrower has taken, is
taking or proposes to take to correct the same;
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E. to pay and discharge all real estate taxes prior to the attachment of
penalties with respect thereto and installments of special assessments
payable therewith, and insurance premiums with respect to the insurance
required to be maintained by the Borrower under the terms of any of the
Borrower Documents, and utility charges incurred by the Borrower prior to
or during the term of this Agreement, except if such taxes, assessments or
premiums are being contested in good faith by appropriate proceedings and
provided that, if requested by the Lender, the Borrower shall have
deposited into escrow with the Lender an amount equal to such taxes,
assessments or premiums plus penalties accrued thereon;
F. to cause to be prepared financial statements of the Borrower and the
Guarantor as follows:
1. as soon as available and in any event within one hundred
twenty (120) days after the end of each fiscal year of the
Borrower annual financial statements of the Borrower (balance
sheet, statement of income, and statement of changes in
financial position) for such year, all in reasonable detail
and audited by independent certified public accountants
selected by the Borrower and acceptable to the Lender in
accordance with generally accepted accounting principles,
consistently applied, which statement shall also be
accompanied by a certificate signed by an officer of the
Borrower in the form attached hereto as Exhibit A;
2. as soon as available and in any event within one-hundred
twenty (120) days after the end of each fiscal year, annual
financial statements of the Guarantor (balance sheet,
statement of income, and statement of cash flow) on a combined
and combining basis, all in reasonable detail and prepared and
audited by independent certified public accountants of
recognized standing selected by the Borrower and acceptable to
the Lender to the effect that the same have been prepared in
accordance with generally accepted accounting principles,
consistently applied, which statement shall also be
accompanied by a certificate signed by an officer of such
entity;
3. on or before December 15 of each year or within thirty (30)
days after the filing of their tax returns, financial
statements and copies of the tax returns of the Borrower and
the Guarantor;
4. monthly internally prepared financial statements as soon as
available, and in any event within thirty (30) days after the
end of each month;
5. from time to time, with reasonable promptness, such further
information regarding the business, operations, affairs and
financial and other condition of the Borrower as the Lender
may request.
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G. to promptly give notice in writing to the Lender of any and all
litigation involving the Borrower where the amount in dispute exceeds
$50,000 and is not covered by insurance, and of any and all litigation if
the aggregate amount in dispute in connection with such litigation exceeds
$50,000 and is not covered by insurance, and of any and all material
proceedings commenced against the Borrower by or before any court or
governmental or regulatory agency;
H. to comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, a breach of which
would materially and adversely affect the business or credit of the
Borrower, except where diligently contested in good faith and by proper
proceedings;
I. that the Borrower shall not enter into any tenant leases for leased
space within the Project without the prior written consent of the Lender;
J. to preserve and maintain all of the Borrower's rights, privileges and
permits or licenses necessary or desirable in the normal conduct of the
Borrower's business; and not to suspend business operations or convey,
transfer, encumber or pledge any of the property or assets that are
secured by the Mortgage;
K. to keep all of the assets and properties necessary in the Borrower's
business, in good working order and condition, ordinary wear and tear
excepted;
L. to obtain all necessary and convenient state, federal, local and
private clearances, authorizations, permits and licenses with respect to
the business operations of the Borrower, including, without limitation,
any export and other trade licenses or permits required by law for the
present or future business operations of the Borrower; and
M. except for those guaranties and obligations existing as of the date
hereof and disclosed on the attached Schedule 9.M, or otherwise in the
ordinary course of Borrower's business, the Borrower shall not assume,
guarantee, endorse, contingently agree to purchase or otherwise become
liable (directly or indirectly, absolutely or contingently) in connection
with the obligations of any other person, firm or corporation, nor shall
the Borrower make or permit to exist any loans or advances by the Borrower
to, or purchase or otherwise acquire all or any substantial part of the
assets of, or any shares of stock or similar interest in, any other
person, corporation or entity; provided, however, loans or advances by and
between the Borrower and the Guarantor shall be permitted and shall not
require advance consent of the Lender;
N. not to undertake or permit without prior written approval of the Lender
any other or additional construction on the Project site that is the
subject of the Mortgage;
O. the Borrower shall immediately notify the Lender of any termination of
its license and permits issued by any governmental or regulatory
authorities that are necessary to run its business operation.
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P. Borrower shall not permit, as at the end of each fiscal quarter, the
Debt Service Coverage Ratio to be less than 1.25 to 1.00. For purposes of
this provision "Debt Service Coverage Ratio" means, as at the end of any
fiscal quarter for the three month fiscal quarter ending on such date
(i.e. the last day of September, December, March and June) for Borrower,
the ratio whose numerator is EBITDA, minus non-financed capital
expenditures, minus cash taxes, and whose denominator is interest
payments, plus the current maturities of long-term debt, plus the current
portion of capital leases. "EBITDA" means, in any fiscal period,
Borrower's net income for net loss (other than extraordinary or
non-recurring gains of Borrower for such period), plus (i) the amount of
all interest expense, income tax expense, depreciation expense and
amortization expense of Borrower for such period, and plus or minis (as
the case may be) (ii) any other non-cash charges which have been added or
subtracted, as the case may be, in calculating Borrower's net income for
such period.
9. Event of Default Defined. As used herein, the term "Event of Default"
shall mean and include each or all of the following events:
A. the Borrower or Guarantor shall fail to pay, when due, any amounts
required to be paid by the Borrower under the Note, or any other
indebtedness of the Borrower or Guarantor to the Lender, or the Borrower
or the Guarantor shall otherwise be in default under the terms of any or
indebtedness to any third party lender and such default is not cured
within the applicable cure period or the third party lender has not
otherwise waived the default;
B. the Borrower or Guarantor shall fail to observe or perform any of their
respective covenants, conditions or agreements to be observed or performed
by either of them under the Borrower Documents, the Guaranty or any other
credit or similar agreement between the Borrower and the Lender or the
Guaranty for a period of five (5) days after written notice, specifying
such default and requesting that it be remedied, given to such party by
the Lender, unless the Lender shall agree in writing to an extension of
such time prior to its expiration, or for such longer period as may be
reasonably necessary to remedy such default (other than defaults which can
be cured by a money payment) provided that such party is proceeding with
reasonable diligence to remedy the same;
C. the Borrower or Guarantor shall file a petition in bankruptcy or for
reorganization or for an arrangement pursuant to any present or future
state or federal bankruptcy act or under any similar federal or state law,
or shall be adjudicated a bankrupt or insolvent, or shall make a general
assignment for the benefit of its or his creditors, or shall be unable to
pay its debts generally as they become due; or if a petition or answer
proposing the adjudication of the Borrower or Guarantor as a bankrupt or
its reorganization under any present or future state or federal bankruptcy
act or any similar federal or state law shall be filed in any court and
such petition or answer shall not be discharged or denied within
forty-five (45) days after the filing thereof; or if a receiver, trustee
or liquidator of the Borrower or any Guarantor or of all or substantially
all of the assets of the Borrower or
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Guarantor or of the Project shall be appointed in any proceeding brought
against the Borrower or Guarantor and shall not be discharged within
ninety (90) days of such appointment; or if the Borrower or Guarantor
shall consent to or acquiesce in such appointment; or if any property of
the Borrower or Guarantor (including, without limitation, the estate or
interest of the Borrower in the Project or any part thereof) shall be
levied upon or attached in any proceeding;
D. final judgment(s) for the payment of money in excess of $100,000,
individually or in the aggregate, shall be rendered against the Borrower
or the Guarantor and shall remain undischarged for a period of thirty (30)
days during which execution shall not be effectively stayed;
E. the Borrower or Guarantor shall be or become insolvent (whether in the
equity or bankruptcy sense);
F. any representation or warranty made by the Borrower or Guarantor in the
Borrower Documents or by any Guarantor in the Guaranty shall prove to be
untrue or misleading in any material respect, or any statement,
certificate or report furnished hereunder or under any of the foregoing
documents by or on behalf of the Borrower or Guarantor shall prove to be
untrue or misleading in any material respect on the date when the facts
set forth and recited therein are stated or certified;
G. any material adverse change in the financial condition of the Borrower
or Guarantor which, in the reasonable opinion of the Lender, increases its
risk with respect to the Note;
H. the Borrower or Guarantor shall liquidate, dissolve, terminate or
suspend its business operations or otherwise fail to operate its business
in the ordinary course, or sell all or substantially all of its assets,
without the prior written consent of the Lender;
I. except as otherwise provided in the Mortgage, the Borrower or the
Guarantor shall fail to pay, withhold, collect or omit any tax or tax
deficiency when assessed or due (other than any tax or tax deficiency
which is being contested in good faith and by proper proceedings and for
which it shall have set aside on its books adequate reserves therefor) or
notice of any state or federal tax liens shall be filed or issued;
J. any property of the Borrower or of the Guarantor shall be garnished,
levied upon or attached in any proceeding and such garnishment or
attachment shall remain undischarged for a period of thirty (30) days
during which execution has not been effectively stayed;
K. the Project is condemned, destroyed or damaged to any material extent,
whether or not the same is covered by insurance and the Lender has the
right to apply the proceeds of such insurance or condemnation award as a
prepayment of the Note pursuant to Section 2.02 or 2.03 of the Mortgage;
or
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L. the Borrower sells, leases, assigns, transfers or otherwise disposes of
the Project.
10. NOTICES. All notices, consents, requests, demands and other communications
hereunder shall be given to or made upon the respective parties hereto at
their respective addresses specified below or, as to any party, at such
other address as may be designated by it in a written notice to the other
party. All notices, requests, consents and demands hereunder shall be
effective when personally delivered or duly deposited in the United States
mails, certified or registered, postage prepaid, or delivered to the
telegraph company, addressed as aforesaid.
IF TO THE LENDER:
Xxxxxx Business Finance Corporation
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxx
IF TO THE BORROWER:
XxxxxXxx Technologies of Minnesota, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Treasurer
WITH A COPY TO:
Xxxx Xxxxxxxx Xxxx, Esq.
Winthrop & Weinstine, P.A.
3000 Xxxx Xxxxxxxx Plaza
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
11. MISCELLANEOUS.
A. Waivers, etc. No failure on the part of the Lender to exercise, and no
delay in exercising, any right or remedy hereunder or under applicable law
or any document or agreement related hereto shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof or the exercise of
any other right or remedy. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
B. Expenses. The Borrower shall reimburse the Lender for any and all costs
and expenses, including without limitation reasonable attorneys' fees,
paid or incurred by the Lender in connection with (i) the preparation of
this Agreement, the Note, the Mortgage, the Guaranty, the Indemnification,
the Security Agreement and any other document or agreement related hereto
or thereto, and the transactions contemplated hereby, which amount shall
be paid prior to the making of any advance hereunder; (ii) the negotiation
of
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any amendments, modifications or extensions to any of the foregoing
documents, instruments or agreements and the preparation of any and all
documents necessary or desirable to effect such amendments, modifications
or extensions; and (iii) the enforcement by the Lender during the term
hereof or thereafter of any of the rights or remedies of the Lender under
any of the foregoing documents, instruments or agreements under applicable
law, whether or not suit is filed with respect thereto.
C. Amendments, etc. This Agreement and the Note may not be amended or
modified, nor may any of their terms (including without limitation, terms
affecting the maturity of or rate of interest on the Note) be modified or
waived, except by written instruments signed by the Lender and the
Borrower.
D. Successors. This Agreement shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
assigns; provided, however, that the Borrower may not transfer or assign
their right to borrow hereunder without the prior written consent of the
Lender.
E. Offsets. Nothing in this Agreement shall be deemed a waiver or
prohibition of the Lender's right of banker's lien, offset, or
counterclaim, which right the Borrower hereby grant to the Lender.
F. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Agreement by signing any
such counterpart.
G. Governing Law. This Agreement, the Note and all other agreements
related hereto, shall be construed in accordance with and governed by the
laws of the State of Minnesota without giving effect to the choice of law
provisions thereof.
H. Headings. The descriptive headings for the several sections of this
Agreement are inserted for convenience only and shall not define or limit
any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
BORROWER:
XXXXXXXX TECHNOLOGIES
OF MINNESOTA, INC.
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
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Its: President
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LENDER:
XXXXXX BUSINESS FINANCE
CORPORATION
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By:
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Its:
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EXHIBIT A
(Form of Certificate Certifying Financial Records)
The undersigned hereby certifies to Xxxxxx Business Finance Corporation
("Lender"), that:
(i) the financial statement(s) attached hereto are complete and correct in
all material respects and fairly present the financial condition of
XxxxxXxx Technologies of Minnesota, Inc., a Minnesota corporation (the
"Borrower") and the "Project" (as those terms are defined in that certain
term loan agreement ("Loan Agreement") dated as of ____________, 2001 by
and between the Borrower and the Lender) as of the date of said financial
statement(s), including all guaranty and other contingent obligations of
the Borrower;
(ii) except as set forth on Exhibit A attached hereto (if any), no "Event
of Default" (as that term is defined in the Loan Agreement) has occurred
and is continuing as of the date hereof which has not been waived by the
Lender, and no event has occurred and is continuing as of the date hereof
which with notice or lapse of time or both would constitute an Event of
Default, or, if such an event has occurred and is continuing, the steps
which the Borrower has taken, is taking or proposes to take to correct the
same are specified in said Exhibit A; and
(iii) the warranties, representations and covenants of the Borrower set
forth and contained in the Loan Agreement and the documents related
thereto are true and correct in all material respects as of the date
hereof.
IN WITNESS WHEREOF, the undersigned has signed and delivered this Certificate to
the Lender as of the _____ day of ___________, 200____.
XxxxxXxx Technologies of Minnesota, Inc.,
a Minnesota corporation
By:
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Its:
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Schedule 9M
GUARANTIES
Borrower is also a co-borrower, jointly and severally liable, with XxxxxXxx
Technologies of Georgia, Inc. for the loans extended to Borrower and co-borrower
as identified and set forth in that certain Loan Agreement dated January 31,
2001, naming Coast Business Credit as lender, and Borrower and XxxxxXxx
Technologies of Georgia, Inc. as co-borrowers.
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