REVOLVING CREDIT AGREEMENT
(Business Loans)
Boxes not checked
are inapplicable.
Schonath Family Partnership
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(Name of Customer)
The above named customer ("Customer", whether one or more) agrees with
Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx ("Lender") as follows:
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1. Revolving Loans. Customer requests that Lender lend to Customer from
time to time such amounts as Customer may request in accordance with this
Agreement (the "Loans"), and, subject to the terms of this Agreement, Lender
agrees to lend such amounts up to the aggregate principal amount of
$2,000,000.00 at any time outstanding (the "Credit Limit"). Within the Credit
Limit, Customer may borrow, repay and reborrow under this Agreement. Lender is
not obligated to but may make Loans in excess of the Credit Limit, and in any
event Customer is liable for and agrees to pay all Loans.
2. |_| Borrowing Base. The aggregate amount of all Loans at any time
outstanding under this Agreement shall never exceed the lesser of the Credit
Limit or the Borrowing Base described on Exhibit A.
3. Conditions for Loans. Lender's obligation to make the Initial Loan
is subject to satisfaction of the following conditions:
(a) |_| Lender shall have received the following security documents
and the additional security documents described on Exhibit
B, if any (the "Security Documents"), all accompanied by the
appropriate financing statements: _________________________
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(b) Lender shall have received copies:
|_| certified by the Secretary of Customer of the articles of
incorporation and bylaws of Customer, and resolutions of the
Board of Directors authorizing the issuance, execution and
delivery of this Agreement and the Security Documents, if
any;
|_| certified by a general partner of Customer of the
partnership agreement of Customer, and an authorization
signed by all of the general partners of Customer
authorizing the issuance, execution and delivery of this
Agreement and the Security Documents, if any;
|_| certified by a member or manager of Customer, as
appropriate, of the articles of organization and operating
agreement of Customer, and an authorization signed by a
member or manager of Customer, as appropriate, authorizing
the issuance, execution and delivery of this Agreement and
the Security Documents, if any;
and a certification of the names and addresses of the representatives of
Customer authorized to sign this Agreement and the Security Documents, if any,
and request Loans under this Agreement, together with true signatures of such
representatives.
(c) |_| Lender shall have received an affidavit of sole ownership
executed by the sole proprietor.
(d) |_| Lender shall have received from counsel for Customer a
favorable opinion satisfactory to Lender covering the
matters described in sections 5(c) and 5(d) or 5(e) as
applicable, and 5(h) of this Agreement and such other
matters as Lender may reasonably request.
(e) |_| Lender shall have received a guaranty of payment of the
Loans duly executed by ____________________________________
___________________________________________________________
___________________________ on WBA form ___________________.
(f) All proceedings taken by Customer in connection with the Leans,
the Security Documents and other documents provided to Lender
shall be satisfactory to Lender and Lender shall have received
copies of all documents reasonably required by it.
4. Loan Procedures. Customer may obtain Loans under this Agreement as
provided in (a), (b) or (c) below.
(a) |X| Customer shall give Lender |X| at least two (2) business
days' prior notice or |_|
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of any Loan requested under this Agreement, specifying the date
and amount of the Loan. Lender will make the Loan available to
Customer |X| by crediting the amount of the Loan to Customer's
account (acct. no. __________________________) with |X| Investors
Bank .
________________________________________________________________
Each Loan which is less than the full amount available to
Customer under this Agreement shall be in an amount not less than
$ 500.00 .
(b) |_| Lender will credit Customer's account (acct. no.
_____________________) with Lender whenever the ledger balance in
the account is less than $_____________________ on any banking
day (the "Target Amount"), for whatever reason. The Loan will be
in an amount within the Credit Limit and Borrowing Base
sufficient to increase the balance to the Target Amount. Lender
may decline to make any Loan and may refuse to pay any check
drawn on the account if the amount available to Customer under
this Agreement would not be sufficient to increase the balance in
the account to the Target Amount.
(c) |_|
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|_| Lender's obligation to make each Loan (including the initial Loan) is
subject to the further condition that Lender shall have received a certificate
signed by Customer, dated the date of the Loan request and stating that the
representations and warranties in section 5 are true and correct as of the date
of the request and that no event of default has occurred and is continuing or
would result from such Loan.
5. Representations. Customer represents end warrants to Lender that on the
date of each Loan:
(a) No part of any Loan will be used for personal, family, household
or agricultural purposes.
(b) Customer will not use any part of the proceeds of Loans to
purchase any margin stock within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System.
(c) The execution and delivery of this Agreement and the Security
Documents, and the performance by Customer of its obligations
under this Agreement and the Security Documents, are within its
power, have been duly authorized by proper action on the part of
Customer, are not in violation of any existing law, rule or
regulation, any order or decision of any court, the articles of
incorporation, bylaws, articles of organization, operation
agreement, partnership agreement or other governing documents of
Customer, as applicable, or the terms of any agreement or
restriction to which Customer is a party or by which it is bound,
and do not require the approval or consent of any person or
entity. This Agreement and the Security Documents, when executed
and delivered, will constitute the valid and binding obligations
of Customer enforceable in accordance with their terms.
(d) |_| Customer is a corporation validly existing and in good
standing under the laws of the State of
____________________________________ and is duly qualified to do
business and is in good standing in every jurisdiction in which
the nature of its business or its ownership of properties
requires such qualification.
(e) |X| Customer is a General partnership legally organized and
(general or limited)
validly existing under the laws of the State of Wisconsin .
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(f) |_| Customer is a limited liability company validly existing and
in good standing under the laws of the State of
________________________ and is duly qualified to do business and
is in good standing in every jurisdiction in which the nature of
its business or its ownership of property requires such
qualification.
(g) All financial statements of Customer furnished to Lender were
prepared in accordance with generally accepted principles of
accounting consistently applied throughout the periods involved
and are correct and complete as of their dates.
(h) (i) There is no substance which has been, is or will be present,
used, stored, deposited, treated, recycled or disposed of on,
under, in or about any real estate now or at any time owned or
occupied by Customer ("Property") during the period of Customer's
ownership or use of the Property in a form, quantity or manner
which if known to be present on, under, in or about the Property
would require clean-up, removal or some other remedial action
("Hazardous Substance") under any federal, state or local laws,
regulations, ordinances, codes or rules ("Environmental Laws");
(ii) Customer has no knowledge, after due inquiry, of any prior
use or existence of any Hazardous Substance on the Property by
any prior owner of or person using the Property; (iii) without
limiting the generality of the foregoing, Customer has no
knowledge, after due inquiry, that the Property contains
asbestos, polychlorinated biphenyl (PCBs) or underground storage
tanks; (iv) there are no conditions existing currently or likely
to exist during the term of this Agreement which would subject
Customer to any damages, penalties, injunctive relief or clean-up
costs in any governmental or regulatory action or third-party
claim relating to any Hazardous Substance; (v) Customer is not
subject to any court or administrative proceeding, judgment,
decree, order or citation relating to any Hazardous Substance;
and (vi) Customer in the past has been, at the present is, and in
the future will remain in compliance with all Environmental Laws.
Customer shall indemnify and hold harmless Lender, its directors,
officers, employees and agents from all loss, cost (including
reasonable attorneys' fees and legal expenses), liability and
damage whatsoever directly or indirectly resulting from, arising
out of, or based upon (1) the presence, use, storage, deposit,
treatment, recycling or disposal, at anytime, of any Hazardous
Substance described above on, under, in or about the Property, or
the transportation of any Hazardous Substance to or from the
Property, (2) the violation or alleged violation of any
Environmental Law, permit, judgment or license relating to the
presence, use, storage, deposit, treatment, recycling or disposal
of any Hazardous Substance on, under, in or about the Property,
or the transportation of any Hazardous Substance to or from the
Property, (3) the imposition of any governmental lien for the
recovery of environmental clean-up costs expended under any
Environmental Law, or (4) breach of this representation or
warranty. Customer shall immediately notify Lender in writing of
any governmental or regulatory action or third party claim
instituted or threatened in connection with any Hazardous
Substance on, in, under or about the Property.
(i) There is no litigation or administrative proceeding pending or,
to the knowledge of Customer, threatened against Customer which
might result in any material adverse change in the business or
condition of Customer.
6. Fees. Customer agrees to pay the following nonrefundable fees as a
condition of access to credit under this Agreement:
(a) |_| Commitment fee in the amount of $ ________________________.
(b) |_| Commitment fee in an amount equal to _________% per year of
the average daily unused portion of the Credit Limit from the
date of this Agreement until the Termination Date specified in
section 15, payable |_| at the times interest is payable under
section 9 |_| on the __________ day of each
_______________________.
(c) |_|
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7. Capital Adequacy. If Lender shall determine that any existing or future
law, rule, regulation, directive, interpretation treaty or guideline regarding
capital adequacy (whether or not having the force of law) increases or would
increase, from that required on the date of this Agreement, the amount of
capital required or expected to be maintained by the Lender, or any corporation
controlling Lender, and if such increase is based upon the existence of Lenders
obligations under this Agreement and other commitments of this type, then from
time to time, within ten days after demand from Lender, the Customer shall pay
to Lender such amount or amounts as will compensate Lender for expenses or costs
required to meet such increased capital requirement. For purposes of calculating
the amount of compensation required, Lender, or any corporation controlling
Lender,
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may conclusively be deemed to have maintained the minimum amount of capital
required on the date of this Agreement, and may base such compensation on the
assumption that Lender (or such corporation) will need to increase its capital
from such minimum amount to the new required amount. The determination of any
amount to be paid by Customer under this section shall take into consideration
policies of Lender, or any corporation controlling Lender, with respect to
capital adequacy and shall be based upon any reasonable method of attribution. A
certificate of Lender setting forth such amount or amounts as shall be necessary
to compensate Lender as specified in this section shall be delivered to Customer
and shall be conclusive absent manifest error.
8. Interest Rate and Other Charges. Customer agrees to pay interest to
Lender on the unpaid principal balance outstanding from time to time under this
Agreement [Check (a) or (b); only one shall apply.]:
(a) |_| At the rate of ____________% per year.
(b) |X| At a rate per year equal to zero (0) percentage points over
the Applicable Federal Rate for loans up to three years ("Index
Rate"). A change in the interest rate will apply both to the
outstanding principal balance and to new Loans. If the Index Rate
ceases to be made available to Lender during the term of this
Agreement, Lender may substitute a comparable index. *
interest under (a) or (b) is computed on the basis of the actual number of days
the principal balance is unpaid based upon a year of |_| 360 days |X| 365 days.
If any payment (other than the final payment) is not made on or before the
_____________ day after its due date, Lender may collect a delinquency charge of
-- % of the unpaid amount. Unpaid principal and interest bear Interest after
maturity (whether by acceleration or lapse time) until paid at the rate |_|
which would otherwise be applicable plus -- % percentage points |_| of -- % per
year, computed on the same basis.
9. Payment Schedule. Customer agrees to pay to Lender the unpaid principal
balance and interest as follows: [Check (a), (b), (c) or (d); only one shall
apply.]
(a) |_| In one payment on the Termination Date specified in section
15.
(b) |_| In payments of interest, beginning ______________, and on the
same day of each ____________ month thereafter, plus a final
payment of unpaid principal and interest due on the Termination
Date specified in section 15.
(c) |_| In installments each equal to __________% of the unpaid
principal balance, plus interest, beginning _______________, and
on the same day of each _______________ month thereafter, plus a
final payment of unpaid principal and interest due on the
Termination Date specified in section 15.
(d) |X| on demand
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In addition, Customer shall immediately pay any amount by which the Loans exceed
the Credit Limit or the Borrowing Base established under section 2, if any, and
any prior unpaid payments. Lender is authorized to automatically charge payments
due under this Agreement to any account of Customer with Lender. If payments are
not automatically charged to Customer's account, payments must be made to the
Lender at its address shown above and are not credited until received in
Lender's office. Lender is authorized to make book entries evidencing Loans and
payments under this Agreement and the aggregate unpaid amount of all Loans as
evidenced by those entries is presumptive evidence that those amounts are
outstanding and unpaid to Lender.
10. Covenants. Customer shall, so long as any amounts remain unpaid, or
Lender has any commitment to make Loans under this Agreement:
*The initial Index Rate is 5.87%.
The Index Rate shall be adjusted on September 4, 1998 and on the same day of
each successful year thereafter.
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(a) Furnish to Lender, as soon as available, such financial information
respecting Customer as Lender from time to time requests, and without
request furnish to Lender;
(i) Within 30 days after the end of each fiscal year of Customer a
balance sheet of Customer as of the close of such fiscal year in
reasonable detail and satisfactory in scope to Lender, prepared
in accordance with generally accepted principles of accounting
applied on a consistent basis, certified by |_| an independent
certified public accountant acceptable to Lender |X| the chief
financial representative of Customer, and
(ii) Within ______ days after the end of each ______________ month a
balance sheet of Customer as of the end of such month and related
statements of income and retained earnings and cash flow for the
period from the beginning of the fiscal year to the end of such
month, prepared in accordance with generally accepted principles
of accounting applied on a consistent basis, certified, subject
to normal year-end adjustments, by an officer or partner of
Customer,
(b) Keep complete end accurate books of records and accounts and permit
any representatives of Lender to examine and copy any of the books and
to visit and inspect any of Customer's tangible or intangible
properties as often as desired.
(c) Maintain insurance coverage in the forms (together with any lender's
loss payee clause requested by Lender), amounts and with companies
which would be carried by prudent management in connection with
businesses engaged in similar activities in similar geographic areas,
Without limiting this section or the requirements of any Security
Document, Customer will [i] keep all its physical property insured
against fire and extended coverage risks in amounts and with
deductibles at least equal to those generally maintained by businesses
engaged in similar activities in similar geographic areas, [ii]
maintain all such workers' compensation and similar insurance as may
be required by law and [iii] maintain, in amounts and with deductibles
at least equal to those generally maintained by businesses engaged in
similar activities in similar geographic areas, general public
liability insurance against claims for bodily injury, death or
property damage occurring on, in or about the properties of Customer,
business interruption insurance end product liability insurance.
(d) Pay and discharge all lawful taxes, assessments and governmental
charges upon Customer or against its properties prior to the date on
which penalties attach, unless and to the extent only that such taxes,
assessments and charges are contested in good faith and by appropriate
process by Customer.
(e) Do all things necessary to maintain its existence, to preserve and
keep in full force and effect its rights and franchises necessary to
continue its business and comply with all applicable laws, regulations
and ordinances.
(f) Timely perform and observe the following financial covenants, all
calculated in accordance with generally accepted principles of
accounting applied on a consistent basis:
(i) |_| Maintain at all times an excess of current assets over
current liabilities of not less than $_____________.
(ii) |_| Maintain at all times a tangible net worth of not less than $
____________________.
(iii) |_| Not make any expenditures for fixed or capital assets which
would cause the aggregate of all such expenditures to exceed
$__________________ during any fiscal year.
(iv) |_| Maintain at all times a ratio of current assets to current
liabilities of net less than _____________ to one.
(v) |_| Maintain at all times a ratio of total liabilities to
tangible net worth of not greater than ___________ to one.
(vi) |_| .
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(g) Furnish to Lender the Borrowing Base Certificates required under
Exhibit A, if any.
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(h) Not create or permit to exist any lien or encumbrance with respect to
Customer's properties, except liens in favor of Lender, liens for
taxes if they are being contested in good faith by appropriate
proceedings and for which appropriate reserves are maintained, liens
or encumbrances permitted under any Security Document and
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(if left blank, no other permitted liens or encumbrances)
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(i) Not take any action or permit any event to occur which materially
impairs Customer's ability to make payments under this Agreement when
due. Such events include, without limitation, the fact that Customer,
Customer's spouse or any surety for Customer's obligations under this
Agreement ceases to exist, dies, changes marital status or domicile or
becomes insolvent or the subject of bankruptcy or insolvency
proceedings.
(j) Timely perform all duties and responsibilities imposed on Customer
under Section 5(h).
(k) |_| Unless otherwise consented to in writing by Lender, timely perform
and observe all additional covenants described on Exhibit C.
11. Security Interest. This Agreement is secured by all existing and future
security agreements, assignments and mortgages from Customer to Lender, from any
guarantor of this Agreement to Lender, and from any other person to Lender
providing collateral security for Customer's obligations, and payment of the
Loans may be accelerated according to any of them. However, if Customer is a
natural person, and unless checked here |_| Lender disclaims as security for
this Agreement any existing or future first lien mortgage or equivalent security
interest Lender may have on a 1-4 family dwelling used as Customer's principal
place of residence. Unless a lien would be prohibited by law or would render a
nontaxable account taxable, Customer also grants to Lender a security interest
and lien in any deposit account Customer may at any time have with Lender.
Lender may at any time after the occurrence of an event of default set-off any
amount unpaid under this Agreement against any deposit balances or other money
now or hereafter owed to Customer by Lender.
12. Default and Acceleration. Upon the occurrence of any one or more of the
following events of default: (a) Customer fails to pay any amount when due under
this Agreement or under any other instrument evidencing any indebtedness of
Customer, (b) any representation or warranty made under this Agreement or
information provided by Customer in connection with this Agreement is or was
false or fraudulent in any material respect, (c) a material adverse change
occurs in Customer's financial condition, (d) Customer fails to timely observe
or perform any of the covenants or duties contained in this Agreement, (e) any
guaranty of Customer's obligations under this Agreement is revoked or becomes
unenforceable for any reason or any such guarantor dies or ceases to exist, or
(f) an event of default occurs under any Security Document;
then, at Lender's option, and upon written or verbal notice to Customer,
Lender's obligation to make Loans under this Agreement shall terminate and the
total unpaid balance shall become immediately due and payable without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by Customer. Lender's obligation to make loans under
this Agreement shall automatically terminate and the total unpaid balance shall
automatically become due and payable in the event Customer becomes the subject
of bankruptcy or other insolvency proceedings. Lender may waive any default
without waiving any other subsequent or prior default. Customer agrees to pay
Lender's costs of administration of this Agreement. Customer also agrees to pay
all costs of collection before and after Judgment, including reasonable
attorneys' fees (including those incurred in successful defense or settlement of
any counterclaim brought by Customer or incident to any action or proceeding
involving Customer brought pursuant to the United States Bankruptcy Code).
13. Indemnification. Customer agrees to defend, indemnity and hold harmless
Lender, its directors, officers, employees and agents, from and against any and
all loss, cost, expense, damage or liability (including reasonable attorneys'
fees) incurred in connection with any claim, counterclaim or proceeding brought
as a result of, arising cut of or relating to any transaction financed or to be
financed, in whole or in part, directly or indirectly, with the proceeds of any
Loan or the entering into and performance of this Agreement or any document or
instrument relating to this Agreement by Lender or the activities of Customer.
This indemnity will survive termination of this Agreement, the repayment of all
Loans and the discharge and release or any Security Documents,
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14. Venue. To the extent not prohibited by law, venue for any legal
proceeding relating to enforcement of this Agreement shall be, at Lender's
option, the county in which Lender has its principal office in this state, the
county in which Customer resides, or the county in which this Agreement was
executed by Customer,
15. Termination. Unless sooner terminated under section 12, Customer's
right to obtain Loans and Lender's obligation to extend credit under this
Agreement shall terminate on demand (the "Termination Date"). Customer may
terminate Customer's right to obtain Loans under this Agreement at any time and
for any reason by written notice to the Lender. Such notice of termination
signed by a Customer shall be binding on each Customer who signs this Agreement.
Termination, for whatever reason, does not affect Lender's rights, powers and
privileges, nor Customer's duties and liabilities, with regard to the then
existing balance under this Agreement.
16. Amendment. No amendment, modification, termination or waiver of any
provision of this Agreement shall in any event be effective unless it is in
writing and signed by Lender, and then such waiver or consent shall be effective
only in the specific instance and for the specific purposes for which given.
17. Entire Agreement. This Agreement, including the Exhibits attached or
referring to it, and the Security Documents, are intended by Customer and Lender
as a final expression of their Agreement and as a complete and exclusive
statement of its terms, there being no conditions to the full effectiveness of
this Agreement except as set forth in this Agreement and the Security Documents.
18. No Waiver; Remedies. No failure on the part of Lender to exercise, and
no delay in exercising, any right, power or remedy under this Agreement shall
operate as a waiver of such right, power or remedy; nor shall any single or
partial exercise of any right under this Agreement preclude any other or further
exercise of the right or the exercise of any other right. The remedies provided
in this Agreement are cumulative and not exclusive of any remedies provided by
law.
19. More Than One Customer. If more than one person signs this Agreement as
Customer, Lender may at its option and without notice refuse any request for a
Loan upon notice from any of the undersigned. Any of the undersigned Customers
may request Loans under this Agreement. Each of the undersigned Customers is
jointly and severally liable for all Loans and other obligations under this
Agreement.
20. Notice. Except as otherwise provided in this Agreement, all notices
required or provided for under this Agreement shall be in writing and mailed,
sent or delivered, if to Customer, at any Customer's last known address as shown
on the records of Lender, and if to Lender, at its address shown below, or, as
to each party, at such other address as shall be designated by such party in a
written notice to the other party. All such notices shall be deemed duly given
when delivered by hand or courier, or three business days after being deposited
in the mail (including any private mail service), postage prepaid, provided that
notice to Lender pursuant to section 15 shall not be effective until received by
Lender.
21. Address. Customer's address is shown below. Customer shall immediately
notify Lender in writing of any change of address.
22. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of Lender and Customer and their respective heirs, personal
representative, successors and assigns except that Customer may not assign or
transfer any of Customer's rights under this Agreement without the prior written
consent of Lender.
23. Interpretation. The validity, construction and enforcement of this
Agreement are governed by the internal laws of Wisconsin. Invalidity of any
provision of this Agreement shall not effect the validity of any other
provisions of this Agreement.
24. Other Provisions. (if none stated, there are no other provisions.)
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Dated as of September 4, 1997 .
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Xxxxxx Xxxxxxxx and Xxxx Xxxxxxxx(SEAL) Schonath Family Partnership(SEAL)
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By /s/ Xxxxxx Xxxxxxxx By /s/ Xxxxxx Xxxxxxxx
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( ) (Managing General Partner )
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(Title) (Title)
000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 * Xxxxxx Xxxxxxxx
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(Address)
By ______________________________
*Type or print name signed above. ( )
---------------------------------
(Title)
*
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(Address)
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