LOAN AGREEMENT
--------------
This Loan Agreement dated effective January 31, 1995, is by and between
Bowlins, Incorporated (individually and collectively the "Borrower"), and FIRST
SECURITY BANX OF NEW MEXICO, N.A. ("Bank"), a national banking association.
RECITALS.
---------
1. Borrower has applied to the Bank for * loan(s) as follows:
LOAN A. $765,000 Real Estate Loan.
LOAN B. $35,000 Equipment Loan.
2. The Bank is willing to make the Loan(s) on the terms and conditions set
forth in this Agreement.
3. The Borrower and the Bank intend and agree to be bound by the terms of
this Agreement.
AGREEMENT.
----------
In consideration of the mutual covenants and agreements contained in this
Agreement and for other good and valuable consideration, the Borrower and the
Bank agree:
SECTION 1 - DEFINITIONS.
------------------------
As used in this Agreement, the following terms shall have the respective
meanings indicated:
1.01 Agreement means this Loan Agreement.
1.02 Bank means First Security Bank of New Mexico, N.A. and its successors
and assigns.
1.03 Borrower means the undersigned borrower(s) and all successors and
assigns.
1.04 Borrower's Resolutions means, if Borrower is a corporation, the
resolutions duly adopted by the Board of Directors of the Borrower authorizing
and consenting to the Loan and to the execution and delivery of the Loan
Documents. The Borrower's Resolutions may be evidenced by the Resolution in a
form acceptable to the Bank.
1.05 Business Day means a day when the Bank is open for business.
1.06 Closing Date means effective January 31, 1995.
1.07 Collateral means all collateral, liens, assignments, mortgages,
security interests, and other rights, presently in connection with the Loans, or
hereafter, created or signed by or in favor of Borrower to the Bank in order to
secure performance and/or repayment of the Loans.
1.08 Collateral Documents means any and all documents executed by or on
behalf of the Borrower, any Guarantor, or any party having any right, title or
interest in any Collateral which evidences, grants, creates, assigns, or
perfects any interest in the Collateral in favor of Bank.
1.09 Governmental Authority means the United States of America; the State
of New Mexico; any political subdivision of any of the foregoing and any agency,
department, commission, board, bureau or instrumentality of any of them which
now or hereafter exercises jurisdiction over the Borrower.
1.10 Guarantor means X. X. Xxxxxx.
1.11 Loans means the loans from the Bank to the Borrower as described in
Section 2, evidenced by the Notes and advanced by the Bank pursuant to the terms
of this Agreement and the other Loan Documents.
1.12 Loan Document(s) means this Agreement, the Notes, all Collateral
Documents, and all other liens, lien interests, and instruments executed in
connection with or as security for the payment of the Loans or for performance
of the Borrower's Obligations under this Agreement, or for both such payment and
performance and all renewals, extensions, modifications and amendments of any of
the foregoing.
1.13 Loan Fees means the fees charged by the Bank in connection with the
Loans, in addition to the expenses described in Paragraph 3.07.
1.14 Note(s) collectively means the following promissory notes executed and
delivered by the Borrower together with all extensions, amendments, modif
ications, revisions, replacements, and substitutions thereof permitted by the
Bank:
(a) $765,000 real estate loan in the form attached as Exhibit 1.14(a);
and
(b) $35,000 equipment loan in the form attached as Exhibit 1.14(b).
1.15 Obligations means all obligations of the Borrower:
(a) To pay the principal of, and interest on, each Note and any
Renewal Note in accordance with their respective terms, now
existing or existing in the future, and to satisfy all of its
other liabilities to the Bank whether hereunder or otherwise,
whether now existing or hereafter incurred, matured or unmatured,
direct or contingent, joint or several, including any extensions,
modifications, renewals thereof and substitutions therefor;
(b) To repay to the Bank all amounts advanced by the Bank hereunder or
otherwise on behalf of the Borrower, including, but without
limitation, advances for Loan Fees, principal or interest payments
to prior secured parties or lienholders, or for taxes or levies;
and
2
(c) To reimburse the Bank, on demand, for all of the Bank's expenses
and costs, including the reasonable fees and expenses of its
counsel, in connection with the administration, amendment,
modification or enforcement of the Loan Documents and any
documents evidencing or relating to a Renewal Note, including,
without limitation, any proceeding brought or threatened to
enforce payment of any of the Obligations.
1.16 Organizational Documents means:
(a) If Borrower is a corporation, copies of the current Articles of
Incorporation and Bylaws of the Borrower and all amendments, and
evidence satisfactory to the Bank that the Borrower is a
corporation in good standing in the State of New Mexico; and
(b) If Borrower is a partnership or other business entity, copies of
the organizational documents and evidence satisfactory to the Bank
that Borrower is a bona fide business entity.
1.17 Person means any individual, partnership, corporation or other
business entity or organization.
1.18 Renewal Note means any promissory note executed and delivered by the
Borrower to the Bank in connection with a renewal, extension, modification,
amendment, revision, replacement or substitution of one or both Notes in
accordance with the terms of this Agreement.
SECTION 2 - THE LOANS.
----------------------
2.01 General Terms.
(a) LOAN A. The maximum principal amount of Loan A shall be $765,000.
The loan shall be:
*A term loan with no right to borrow repaid principal.
LOAN B. The maximum principal amount of Loan B shall be
$35,000.00. The loan shall be:
*A term loan with no right to borrow repaid principal.
(b) Borrower's obligation to repay the Loans shall be evidenced by the
Notes, any Renewal Note, and the other Loan Documents, all of
which Borrower shall execute and deliver to the Bank before it may
receive any Loan proceeds.
(c) Bank shall not advance on Loan A more than 85% of the current
appraised value of the Collateral at any time.
3
2.02 Security for Payaent and Performance. The Collateral is given to
secure Loan A and B and is and will be used as security for any and all other
indebtedness of Borrower to the Bank, whether now existing or hereaf ter
arising. Repayment and performance of the Obligations is secured by the
Collateral Documents, including, but not limited to the following:
Loan A. First REM on land and building located at 136 and 000
Xxxxxxxxx Xxxx., X. X. Xxxxxxxxxxx, Xxx Xxxxxx, 00000. Assignment
of Leases and Rents.
Loan B. First lien on all furniture and equipment located at 136
and 000 Xxxxxxxxx Xxxx., X. X., Xxxxxxxxxxx, Xxx Xxxxxx, 00000.
2.03 Right of Set-off. Collateral includes the Bank's right of setoff
against any balance or share belonging to Borrower of any deposit or other
account with the Bank, notwithstanding any other security for the Loans.
2.04 Collateral; Deficiency. All security held by the Bank under the terms
of this Agreement and the other Loan Documents shall be available as Collateral
for the Loans and may be applied to satisfy the Borrower's Obligations and to
otherwise perform its duties and obligations under the Loan Documents. The
Borrower shall remain liable for any deficiency remaining after such
application.
2.05 Interest on the Notes. Interest shall accrue at the rate specified in
the Notes. The Bank may, at its option, calculate and charge interest as though
each payment is made on the payment due date with principal reductions effective
as of the date of receipt.
2.06 Repayment of the Notes. Each Note shall be due and payable on the
dates specified in the Note and in accordance with the terms thereof. All
payments shall be paid directly to the Bank in immediately available funds.
After written notice of default and a 30 day cure period, the Bank may charge
any deposit account of Borrower for all or any part of the Obligations due or
declared due. The records maintained by the Bank shall be deemed to be evidence
of the date of an amount of each payment on the Note and the other Obligations.
Payments may be applied to any Note(s) in such amounts and in such order or
priority as the Bank deems necessary.
2.07 Guaranty. The Loan(s) will be guaranteed by the Guarantor(s) named in
Paragraph 1.10 in a form acceptable to Bank, to be attached as Exhibit 2.07.
2.08 Loan Fees. The Borrower shall pay the following Loan Fees:
Loan A. None.
Loan B. None.
2.09 Authorized Persons. Xxxxxxx Xxxxxx or X. X. Xxxx is authorized to make
a written or oral request to Bank to advance funds under this Agreement. Any
advance made pursuant to such written or oral request is irrebuttable presumed
to be made for Borrower's benefit. Bank shall make disbursements on the Loan(s)
to Borrower for the account of Borrower unless Borrower directs otherwise in
writing.
4
SECTION 3 - REPRESENTATIONS AND AFFIRMATIVE COVENANTS.
------------------------------------------------------
The Borrower represents, warrants, covenants and agrees that:
3.01 Status. The Borrower is a duly organized and validly existing
corporation, partnership or other business entity, in good standing and duly
authorized to carry on its business in the State of New Mexico as now conducted
and to enter into and perform its obligations under this Agreement and each of
the Loan Documents.
3.02 Maintenance of Status. The Borrower will maintain its existence as a
business entity which is duly authorized to do business in the State of New
Mexico, will comply with all statutes and rules and regulations applicable to
its organization and existence and its business in New Mexico or elsewhere, and
will maintain its properties and other assets in good condition.
3.03 Due Authorization. The execution, delivery and performance by the
Borrower of the Loan Documents have been duly authorized by all necessary
corporate action by the Borrower and its Board of Directors.
3.04 Validity and Binding Effect. The Loan Documents have been duly and
validly executed, issued and delivered by the Borrower and constitute valid and
legally binding obligations of the Borrower, enforceable in accordance with
their terms except as may be limited by bankruptcy, insolvency, reorganization
or other similar laws related to or affecting enforcement of creditors' rights.
3.05 Compliance. The execution and delivery by the Borrower of the Loan
Documents and compliance by the Borrower with the terms thereof will not
violate:
(a) Any law or regulation, including but not limited to any securities
law or regulation;
(b) Borrower's Organizational Documents; or
(c) Any other instrument or agreement binding upon the Borrower.
3.06 Impositions. The Borrower will comply with all legal requirements and
will pay all taxes, assessments, governmental charges and other obligations
which, if unpaid, might become a lien against the Collateral and the Borrower's
other property, except liabilities being contested in good faith and against
which, if requested by the Bank, the Borrower will set up reserves to satisfy
such obligations as they become due.
3.07 Expenses and Loan Fees. The Borrower will pay any and all fees, costs
and expenses, of whatever kind and nature, including but not limited to
attorneys' fees, title insurance premiums, surveys, environmental audits,
appraisal fees, recording fees, and filing fees, incurred by Bank in connection
with the origination of the two subject loans (whether or not the Loans are
advanced) and all shall be borne and paid by Borrower on demand by Bank and
until so paid constitute part of the Obligations of Borrower secured by the Loan
Documents and the Collateral, and shall accrue interest at the Note rate or, if
applicable, at the default rate. Borrower hereby authorizes Bank to
5
make advances on the Loan (s) , if available, to pay such costs and expenses if
Bank, in its sole discretion, chooses to do so.
3.08 Accuracy of Representations. No certificate, statement, document,
financial or other information delivered by or on behalf of Borrower to the Bank
in connection herewith or in connection with the Loans contains any untrue
statement of a material fact or fails to state any material fact necessary to
keep such information from being misleading. Borrower represents and warrants
all financial and other information hereafter furnished to the Bank will be
materially accurate and complete and acknowledges that such information will be
submitted to the Bank with the intent that the Bank will rely upon such
information.
3.09 Financial and Other Information. The Borrower shall deliver to the
Bank the following financial and other information:
(a) Financial Statements.
Within one hundred twenty (120) days after the end of each fiscal
year, annual financial statements acceptable to the Bank,
including balance sheet, statement of income, notes thereto, and
any other financial information reasonably requested by Bank. The
statements shall be audited (Initial;
(b) Semi-annual Information.
Within sixty (60) days after the end of the second fiscal quarter,
Borrower's internally prepared balance sheet and statement of
income. Such internally prepared information shall be prepared and
conform with generally accepted accounting principles,
consistently applied, with certification that such information is
materially true, accurate, and complete to the best knowledge of
the person preparing such information and the President of
Borrower.
(c) Financial Information on Guarantors.
Borrower shall obtain and furnish annually, in form acceptable to
the Bank, a financial statement of each Guarantor. Additionally,
Borrower shall furnish to the Bank annually the individual federal
income tax return, with all schedules, of each Guarantor.
(d) Additional Information.
Borrower shall provide such additional financial and other
information about the Borrower and its business activities, and
any other guarantor which the Bank shall reasonably require during
the term of these Loans.
3.10 Collateral Title, Liens. Borrower shall, at its own expense, take any
and all actions necessary to remove any encumbrances or clouds upon title to the
Collateral, except those agreed to in writing by the Bank; and Borrower shall
keep the Collateral free and clear of such encumbrances or clouds upon title,
except those agreed to in writing by the Bank.
6
3.11 Solvency. The Borrower is solvent, and there are no proceedings
pending or threatened against it which could materially adversely affect its
financial condition or its ability to timely perform all Obligations, nor are
there any governmental or any judicial proceedings of any kind pending or
threatened against it except as disclosed to the Bank in writing prior to
closing.
3.12 Collateral Free and Clear. The Collateral is free and clear of any
adverse liens, restrictions or limitations including any restriction from
transfer except those that have been disclosed to the Bank in writing prior to
closing.
3.13 Notice to Bank of Adverse Claims. The Borrower will promptly notify
the Bank of:
(a) Any litigation or any claim or controversy which might be the
subject of litigation against the Borrower affecting any of the
Collateral, if such litigation or potential litigation might, in
the event of an unfavorable outcome, have a material adverse
effect on such entity's financial condition or on the Bank's lien
or security interest in the Collateral or might cause an Event of
Default;
(b) Any material adverse change in the financial condition or business
of the Borrower;
(c) Any other matter which in the opinion of the Borrower might
materially adversely affect the financial condition of the
Borrower; and/or
(d) The occurrence of any Event of Default.
3.14 Limitations on Borrower; Prohibitions. During the term of the Loans,
including the term of any Renewal Note:
(a) Borrower will notify the Bank in writing of any change in the
offices of the President,, or any other executive officer of
Borrower, within three (3) business days following the date of any
such change.
3.15 Records. The Borrower will keep accurate records, in accordance with
generally accepted accounting principles, of all its transactions so that at any
time, and from time to time, its true and complete financial condition may be
readily determined and, at the Bank's reasonable request, make such records
available for the Bank's inspection and permit the Bank to make and retain
copies thereof.
3.16 Payment of Wages. The Borrower shall pay all wages and payroll taxes
(federal, state and local) as they become due and shall comply with all
applicable federal, state and local labor laws.
3.17 Further Assurances. Throughout the term of the Loans, Borrower and any
guarantor shall take whatever action is deemed by the Bank to be necessary to
preserve and/or protect the Banks lien on the Collateral, including, without
limitation, executing additional documents.
7
3.18 No Assignment. Neither the Loans or the proceeds nor the
Borrower's rights under the Loan Documents may be assigned by the Borrower
without the Bank's prior written consent. Any such assignment without such
consent shall be void.
SECTION 4 - CLOSING CONDITIONS.
-------------------------------
4.01 Conditions Precedent to Closing. The Bank shall not be obligated to
close the Loans unless all of the following conditions shall be satisfied at the
time of such advance, or current compliance with such condition shall have been
waived in writing by the Bank and unless all warranties were substantially true,
correct and accurate at the time made and remain so through closing;
(a) The Loan Documents and Other Items. The Bank shall have received
original, properly executed Loan Documents and other documents or
items, including:
(1) This Agreement;
(2) The Note(s);
(3) The Collateral Documents described in Section 2.02;
(4) The Guaranty(s).
(b) No Default. There shall be no Event of Default under any Loan
Document.
(c) No Potential Default. No event shall have occurred which, with
notice or lapse of time or both, would constitute an Event of
Default under any Loan Document, unless such potential default
shall have been cured to the satisfaction of Bank prior to the
ripening of such potential default into actual default.
(d) Fulfillment of Conditions. The Borrower shall have satisfied all
conditions for the advance and the Borrower shall be in current
compliance with all of its covenants, agreements and obligations
under any Loan Document.
SECTION 5 - DEFAULT AND REMEDIES.
---------------------------------
5.01 Events of Default. The occurrence, whether voluntary or involuntary or
arising by operation of law, or as a result of a judicial or governmental action
or otherwise, of any Event of Default, as defined in the Notes, including any
Renewal Note, any Collateral Documents or the failure to observe or perform any
duty, obligation, warranty, requirement, condition, limitation, or restriction
in this Agreement, any Note, or any event of default under any other indenture,
Agreement, or undertaking between the Borrower and the Bank or between the
Borrower and any lender other than the Bank, shall constitute an Event of
Default under this Agreement.
8
If any payment required by these Notes is not made within ten (10) days of
written notice, or if any non-mandatory default as described in any security
agreement, assignment, pledge agreement, real estate mortgage, or assignment of
rents or leases which provide security for the loans is not cured within thirty
(30) days of written notice, the unpaid balance of these Notes, and any other
liabilities of the maker to the holder, direct or indirect, absolute or
contingent, now or heretofore existing or hereafter arising (all hereinafter
called "Obligations") shall become immediately due and payable at the option of
the holder, without notice or demand. Written notice shall be by certified mail
and shall be deemed received when deposited, postage prepaid, in the United
States mail.
SECTION 6 - MISCELLANEOUS.
--------------------------
6.01 Execution and Form of Documents. Each written instrument required by
this Agreement or any of the other Loan Documents to be furnished to the Bank
shall be duly executed by the person or persons specified (or where no
particular person is specified, by such person as the Bank shall require), duly
acknowledged where required by the Bank and, in the case of affidavits and
similar sworn instruments, duly sworn to and subscribed before a notary public
duly authorized to act in the premises by Governmental Authority; shall be
furnished to the Bank in one or more copies as required by the Bank; shall be in
such form and of such substance as shall be effective, in the judgment of the
Bank, to accomplish the results intended by such instrument; and shall in all
respects be in form and substance satisfactory to the Bank and to its legal
counsel.
6.02 Form of Evidence of Facts. Where evidence of the existence or
nonexistence of any fact is required by this Agreement or any of the other Loan
Documents to be furnished to the Bank, such evidence shall in all respects be in
form and substance satisfactory to the Bank, and the duty to furnish such
evidence shall not be considered satisfied until the Bank shall have
acknowledged, in writing, that it is satisfied; provided that, if the Bank fails
to so acknowledge within sixty (60) days after receipt of such evidence, it
shall be deemed to be satisfied.
6.03 Severability. If any item, term or provision contained in the Loan
Documents is in conf lict, or may hereafter be held to be in conflict with the
laws of the United States or the State of New Mexico, as applicable, or any
political subdivision of any of them, then only the documents containing such
provision shall be affected and it shall be affected only as to such particular
item, term or provision and shall in all other respects remain in full force and
effect.
6.04 No Waiver. No course of dealing between the Bank and the Borrower or
any guarantor, or any delay on the part of the Bank in exercising any rights
hereunder or under the Loan Documents shall operate as a waiver of any rights of
the Bank, except to the extent, if any, expressly waived in writing by the Bank.
6.05 Survival. All covenants, agreements, representations and warranties
made by the Borrower in the Loan Documents and in any certificates or other
documents or instruments delivered pursuant to this Agreement shall survive the
making by the Bank of the Loans and the execution and delivery of the Loan
Documents, and shall continue in full force and effect until the Obligations are
paid in full.
9
6.06 Notices. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by hand delivery,
facsimile transmission, delivery by commercial courier or by depositing the same
in the United States Mail (certified), postage prepaid, addressed to the
respective parties as follows:
If to the Borrower: Bowlins, Incorporated
000 Xxxxxxxxx Xxxx., X. X.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
If to the Bank: First Security Bank of New Mexico, X.X.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Vice President
6.08 Modification. This Agreement shall not be changed orally or by course
of conduct or dealing but shall be changed only by agreement in writing signed
by all parties hereto.
6.09 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which, when so executed and delivered, shall be
an original, but such counterparts shall together constitute one and the same
instrument.
6.10 Binding Effect. This Agreement shall be binding upon the Bank, the
Borrower and its successors, assigns, heirs and personal representatives.
6.11 No Partnership or Joint Venture. Notwithstanding anything to the
contrary in the Loan Documents, and notwithstanding any action the Bank takes
pursuant to the Loan Documents, the Bank and the Borrower shall not be deemed to
be engaged in a partnership or joint venture, nor shall the Bank be deemed to be
an agent or principal of the Borrower.
6.12 Assignment by the Bank. The Loan Documents,, and the Loans
contemplated thereby, may be placed, participated, assigned and/or serviced by
the Bank and/or its successors and assigns, and in connection with any of the
foregoing, the Bank may receive servicing, brokerage or other fees. Any such
placement, participation, assignment or servicing shall be at the Bank's sole
option; and the Bank and its successors and assigns shall have no obligations to
disclose to the Borrower the receipt, or contemplated receipt, of any such fees,
nor shall the Borrower have any claim or right to the same.
6.13 Relation to Other Documents. The provisions of this Agreement are not
intended to supersede the provisions of the other Loan Documents, but should be
construed as supplemental thereto. However, except as specifically provided
herein, if there is any inconsistency between the provisions of this Agreement
and the other Loan Documents, it is intended that this Agreement shall be
controlling.
6.14 Jurisdiction. Borrower hereby irrevocably agrees that any legal action
or proceedings against the Borrower with respect to this Agreement may be
brought in the courts of the State of New Mexico or in the U.S. District Court
for the District of New Mexico. Borrower hereby consents and attorns to the
jurisdiction of such courts and further
10
consents to the personal jurisdiction of any court located within Bernalillo
County, New Mexico, with respect to any lawsuit to enforce the obligations of
Borrower under this Agreement. This provision shall not limit the right of the
Bank to bring such action or proceedings against the Borrower in the courts of
such other states or jurisdictions where the Borrower may be subject to
jurisdiction.
6.15 Governing Law. This Agreement and the Loan Documents have been
negotiated, executed and delivered solely within the State of New Mexico. The
rights and obligations of the parties under this Agreement and under each of the
Loan Documents shall be governed by and construed and interpreted in accordance
with the laws of the State of New Mexico.
6.16 18 U.S.C S1014. Borrower represents and warrants that it is aware of
and, through duly authorized officers and/or directors, has read and understand
the provisions of 18 U.S.C. 1014 which provide generally:
Whoever knowingly makes any false statement or report, or
willfully overvalues any land, property or security, for the
purpose of influencing in any way, the action of... any
institution the accounts of which are insured by the Federal
Deposit Insurance corporation... upon any application, advance,
discount, purchase, purchase agreement, repurchase agreement,
commitment, or loan, or any change or extension of any of the
same, by renewal, deferment of action or otherwise, or the
acceptance, release, or substitution of security therefor, shall
be fined not more than $1,000,000 or imprisoned not more than 30
years or both.
6.17 N.M.S.A. S58-6-5. Borrower represents and warrants that it is aware of
and through its duly authorized officers and/or authorized representatives, has
read and understands the provisions of N.M.S.A. S58-6-5 which provides:
"A contract, promise or commitment to loan money or to grant,
extend or renew credit or any modification thereof, in an amount
greater than twenty-five thousand dollars ($25,000), not
primarily for personal, family or household purposes, made by a
financial institution shall not be enforceable unless in writing
and signed by the party to be charged or that party's authorized
representative...."
6.18 Indemnity. Borrower hereby agrees to indemnify and hold harmless Bank,
its directors, officers and employees from any and all liability, expense,
costs, charges or assessments, including attorneys' fees and expenses, with
respect to hazardous or toxic substances or waste handling, disposal, storage,
repairs or cleanup, whether incurred or imposed pursuant to local, state or
federal law. Borrower also agrees to indemnify and hold harmless Bank, its
directors, officers and employees from and against any and all liability,
expense, damage, demands, claims and lawsuits, including attorneys' fees and
expenses, arising out of this Agreement or the other Loan Document(s) or in
connection therewith, unless arising from Bank's willful misconduct.
11
This Agreement was executed on the dates indicated; it is effective as
of January 31, 1995.
BANK: FIRST SECURITY BANK OF NEW MEXICO, N.A.
----
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Xxxxx X. Xxxxxxx, Vice President
Executed on: 1-30-95
--------------------------------
BORROWER: BOWLINS, INCORPORATED
--------
By: /s/ X. X. Xxxxxx
---------------------------------------
X. X. Xxxxxx, President
Executed on: 1-30-95
--------------------------------
GUARANTOR: /s/ X. X. Xxxxxx
---------------------------------------
X. X. Xxxxxx
Executed on: 1-30-95
--------------------------------
12
Exhibit 1. 14 (a)
(Page 1 of 2)
FIRST SECURITY BANK
Promissory Note
$765,000.00 January 31 1995
Albuquerque, New Mexico
FOR VALUE RECEIVED, BOWLINS, INCORPORATED ("Maker") promises to pay to
the order of FIRST SECURITY BANK, at its offices in Albuquerque, New Mexico
Seven Hundred Sixty Five Thousand Dollars ($765,000.00), plus interest, payable
in monthly payments beginning February 28, 1995 and continuing on the last day
of each month thereafter through December 29, 1999. Monthly payments shall be
Six Thousand Eight Hundred Eighty Three Dollars ($6,883.00) for the first twelve
(12) months and adjusted annually thereafter at the January payment based on an
initial 20-year amortization. The entire balance, including all principal and
accrued interest shall be due and payable in full January 29, 2000.
This loan bears interest from the date hereof until maturity at a
floating rate equal to First Security Bank's prime plus 1/2% per annum, with
adjustments in the rate to be made on the same day as each change in the rate.
First Security Bank's "prime rate" is its announced rate of interest
used as a reference point from which it may calculate the cost of credit to
customers. It is subject to change from time to time. First security Bank may
make loans bearing interest above, at, or below its prime rate. Interest will be
calculated on the basis of a 360-day year. The Bank may, at its option,
calculate and charge interest as though each payment is made on the payment due
date with principal reductions effective as of the day of receipt. If the rate
of interest to be charged by the Bank hereunder is tied to or based on a rate of
interest announced or published by a party other than the Bank (the "Index") and
such party ceases to announce or publish the Index, the Bank, by notice to
maker, may substitute for the Index a rate of interest established from time to
time by a commercial bank located in New York, New York whose interest rate has
historically been comparable to the Index. If the maturity date of this Note is
stated to be due on a Saturday, Sunday, or a public holiday, or the equivalent
for banks generally under the laws of the State of New Mexico, the maturity date
shall be the next succeeding day the Bank is open for business, and such
extension of time shall in such case be included in the computation of the
payment of interest. In the event of default in payment at the time due, or in
the event of acceleration, the unpaid balance shall bear interest at the Prime
Rate, plus 5%. The makers, endorsers, and sureties hereof hereby severally waive
protest, presentment demand, and notice of protest and non-payment in case this
Note (or any payment due hereunder) is not paid when due, and they agree to any
renewal of this Note or to
Exhibit 1. 14 (a)
(Page 2 of 2)
any extension, acceleration, or postponement of the time of payment, or any
other indulgence, to any substitution, exchange or release of collateral, and to
the addition or release of any party or person primarily or secondarily liable
without prejudice to the holder or notice to makers, endorsers, and sureties.
If this Note is payable in more than one payment, a late charge of
$15.00 will be charged for any payment which is not paid within 10 days of its
due date.
If any payment required by this Note is not made within ten (10) days
of written notice, or if any non-mandatory default as described in any security
agreement, assignment, pledge agreement, real estate mortgage, or assignment of
rents or leases which provide security for this loan is not cured within thirty
(30) days of written notice, the unpaid balance of this Note, and any other
liabilities of the makers to the holder, direct or indirect, absolute or
contingent, now or heretofore existing or hereafter arising (all hereinafter
called "Obligations") shall become immediately due and payable at the option of
the holder, without notice or demand. Written notice shall be by certified mail
and shall be deemed received when deposited, postage prepaid, in the United
States mail. The undersigned will pay on demand all costs of collection,
including reasonable costs and attorneys' fees incurred or paid by the holder in
attempting to enforce payment of this Note.
Any deposits and checking, savings, or any other types of accounts or
other sums at any time credited by or due from the holder to any maker,
endorser, or surety hereof and any securities or other property of any maker,
endorser, or surety hereof in the possession of the holder may at all times be
held and treated as collateral security for the payment of any and all
obligations. The holder may, without notice to the makers, endorsers and
sureties, apply or set off such deposits or other sums against such Obligations
at any time when due and payable even if due only by reason of acceleration
regardless of any security for this loan.
MAKER: BOWLINS, INCORPORATED
-----
By:______________________________
Xxxxxxx X. Xxxxxx
2
Exhibit 1. 14 (b)
(Page 1 of 2)
FIRST SECURITY BANK
Promissory Note
$35,000.00 January 31, 1995
Albuquerque, Now Mexico
FOR VALUE RECEIVED, BOWLINS, INCORPORATED ("Maker") promises to pay to
the order of FIRST SECURITY BANK, at its offices in Albuquerque, New Mexico
Thirty Five Thousand Dollars ($35,000.00), plus interest, payable in monthly
payments beginning February 28, 1995 and continuing on the last day of each
month thereafter through December 29, 2001. Monthly payments shall be Five
Hundred Sixty Three Dollars ($563.00) for the first twelve (12) months and
adjusted annually thereafter at the January payment based on a seven (7) year
amortization. The entire balance, including all principal and accrued interest
shall be due and payable in full January 29, 2002.
This loan bears interest from the date hereof until maturity at a
floating rate equal to First Security Bank's prime plus 1/2% per annum, with
adjustments in the rate to be made on the same day as each change in the rate.
First Security Bank's "prime rate" is its announced rate of interest
used as a reference point from which it may calculate the cost of credit to
customers. It is subject to change from time to time. First Security Bank may
make loans bearing interest above, at, or below its prime rate. Interest will be
calculated on the basis of a 360-day year. The Bank may, at its option,
calculate and charge interest as though each payment is made on the payment due
date with principal reductions effective as of the day of receipt. If the rate
of interest to be charged by the Bank hereunder is tied to or based on a rate of
interest announced or published by a party other than the Bank (the "Index") and
such party ceases to announce or publish the Index, the Bank, by notice to
maker, may substitute for the Index a rate of interest established from time to
time by a commercial bank located in New York, New York whose interest rate has
historically been comparable to the Index. If the maturity date of this Note is
stated to be due on a Saturday, Sunday, or a public holiday, or the equivalent
for banks generally under the laws of the State of New Mexico, the maturity date
shall be the next succeeding day the Bank is open for business, and such
extension of time shall in such case be included in the computation of the
payment of interest. In the event of default in payment at the time due, or in
the event of acceleration, the unpaid balance shall bear interest at the Prime
Rate, plus 5%. The makers, endorsers, and sureties hereof hereby severally waive
protest, presentment, demand, and notice of protest and non-payment in case this
Note (or any payment due hereunder) is not paid when due, and they agree to any
renewal of this Note or to
Exhibit 1. 14 (b)
(Page 2 of 2)
any extension, acceleration, or postponement Of the time of payment, or any
other indulgence, to any substitution, exchange or release of collateral, and to
the addition or release of any party or person primarily or secondarily liable
without prejudice to the holder or notice to makers, endorsers, and sureties.
If this Note is payable in more than one payment, a late charge of
$15.00 will be charged for any payment which is not paid within 10 days of its
due date.
If any payment required by this Note is not made within ton (10) days
of written notice, or if any non-mandatory default as described in any security
agreement, assignment, pledge agreement, real estate mortgage, or assignment of
rents or leases which provide security for this loan is not cured within thirty
(30) days of written notice, the unpaid balance of this Note, and any other
liabilities of the makers to the holder, direct or indirect, absolute or
contingent, now or heretofore existing or hereafter arising (all hereinafter
called "Obligations") shall become immediately due and payable at the option of
the holder, without notice or demand. Written notice shall be by certified mail
and shall be deemed received when deposited, postage prepaid, in the United
States mail. The undersigned will pay on demand all costs of collection,
including reasonable costs and attorneys' fees incurred or paid by the holder in
attempting to enforce payment of this Note.
Any deposits and checking, savings, or any other types of accounts or
other sums at any time credited by or due f rom the holder to any maker,
endorser, or surety hereof and any securities or other property of any maker,
endorser, or surety hereof in the possession of the holder may at all times be
held and treated as collateral security for the payment of any and all
obligations. The holder may, without notice to the makers, endorsers and
sureties, apply or set off such deposits or other sums against such Obligations
at any time when due and payable even if due only by reason of acceleration
regardless of any security for this loan.
MAKER: BOWLINS, INCORPORATED
-----
By:_________________________
Xxxxxxx X. Xxxxxx
2
