Los Alamos National Bank
COMMERCIAL LOAN AGREEMENT
The undersigned, New Mexico Software. Inc., a New Mexico Corporation, and
Xxxxxxx X. Xxxxxxxx, Individually as Guarantor, (hereafter collectively
referred to as Borrower) and Los Alamos National Bank (here after referred
to as the Bank) enter into this agreement concerning a loan in the
principal amount of Three Hundred Thousand and no/100's ($300,000.00) to be
secured by the following
UCC-1 filed 1/9/01 as file number 010109048 securing all furniture,
fixtures, equipment, inventory, accounts, chattel paper, tangibles and
general intangibles now owned or hereafter acquired by New Mexico Software,
Inc. and Letter of Credit dated January 19, 2001, Number XXX000000 from
Xxxxx Fargo Bank to LANB as Beneficiary in the amount of $250,000.00.
On the following understandings, terms and conditions:
1. Representations - Borrower represents and warrants to Bank that the
following paragraphs are true and correct:
A. Financial Condition - All financial statements that have been and
will be delivered to the Bank are and will be true and represent
the financial condition of Borrower. Nothing has occurred or
will occur before funding which will materially affect in any
adverse manner the condition of the Borrower as disclosed in the
financial statements. Borrower has and will have no known actual
or contingent liabilities, except such as are reflected in the
financial statements or in other documents that have been or will
be delivered to the Bank.
B. Liens - The Batik will be the sole lienholder on the collateral
for loans made pursuant hereto and on all future collateral of a
similar kind.
C. Taxes - Borrower has filed and will file all required federal,
state, and local tax returns and has paid and will pay all taxes
and assessments as shown on such returns as they have become due.
No claims have been asserted or are unpaid with respect to such
taxes except as are and will be disclosed in the financial
statements.
2. Borrower's Affirmative Duties
A. Annual Financial Statements - Borrower will furnish to the Bank
no later than ninety days after the expiration of each fiscal
year detailed reports of the Borrower's financial position during
such fiscal year. Financial statements will include the
following: Balance Sheet, Income Statement, Cash Flow Statement
and Tax Returns. These statements must be signed and certified
by the Borrower to be true and correct.
B. Interim Financial Statements - Borrower will furnish to the Bank
interim financial information as may be requested by the Bank
from time to time.
C. Insurance - Borrower will maintain property insurance with Bank
named as loss payee with responsible companies in such amounts
and against such risks as is customarily carried by prudent
owners of similar business and property. Borrower will promptly
furnish the Bank copies of insurance policies as requested.
D. Taxes - Borrower will promptly pay and discharge when due all
taxes, assessments, and governmental charges of every kind and
nature lawfully levied, assessed, or imposed upon Borrower or its
properties except to the extent contested in good faith.
Borrower will set aside funds necessary to pay a contested tax,
assessment, or governmental charge plus all interest and
penalties should its challenge prove unsuccessful. The Borrower
will establish and maintain a reserve for federal income taxes in
accordance with generally accepted accounting practices.
E. Assets - Borrower will not sell, lease, transfer, or otherwise
dispose of any of its assets other than in the ordinary course of
business nor will Borrower dispose of more than 20% of its
capital assets without prior written consent from the Bank.
Borrower will not assign or sell any notes, accounts receivable,
contract rights, chattel paper, general intangibles, or proceeds
thereof due or to become due, either as security or otherwise.
F. Contingent Liabilities - Borrower agrees to inform Bank of any
litigation, changes in contractual obligations, or other changes
in the status quo of the borrower which could materially affect
the business.
Page 1 of 2
G. Bank Services - Borrower agrees to maintain its principal
deposits at the Bank.
H. Information - Borrower will furnish to the Bank with reasonable
promptness such data and information concerning the business of
the Borrower and/or related entities, including any copies of
outstanding contracts, as may be requested by the Bank from time
to time. Bank may inspect the Borrower's books and records as
well as its office at any reasonable time.
I. Management - Borrower and Bank will periodically review
Borrower's executive management and key personnel which shall at
all times be satisfactory to the Bank and Borrower will notify
Bank of any management changes.
J. Line of Credit Reduction and Resting Period - Borrower will
reduce the line of credit principle and interest to zero and rest
the line for at least thirty (30) days annually.
3. Additional Covenants:
A. Indebtedness - Borrower will not create, assume, or incur any
indebtedness regarding the collateral securing this loan without
approval in writing from the Bank.
B. Extensions - The Bank will assess extensions and if deemed
appropriate will extend the due date with Borrower paying any
outstanding interest in full and a loan extension fee. Unless
expressly amended by the loan extension, all terms, conditions,
covenants, collateral, liens, obligors, guarantors, and
disclosures in effect for the original loan will remain in full
and effect and unchanged by the extension.
C. Binding Effect - This agreement and the documents executed in
connection herewith will be construed in accordance with and
governed by the laws of the State of New Mexico. All provisions
hereof shall bind and benefit the successors and assigns of Bank
and of heirs, executors, administrators, successors, and assigns
of Borrower provided, however, that Borrower shall not assign
this agreement, or any right, title, or interest thereunder,
without prior written consent of the Bank.
D. The terms of this loan agreement shall survive the execution and
delivery of the promissory note and any other loan documents in
connection herewith.
E. The parties understand and agree that this Loan Agreement will
generally cover their borrowing relationship. Neither party is
obligated to continue the borrowing relationship. There is no
agreement between the parties concerning the extension of further
credit or for the renewal or extension of any specific promissory
note or loan. The provisions of this Loan Agreement shall not
negate or modify in any way the provisions of any promissory
note, security agreement, mortgage, financing statement,
collateral assignment or pledge or any other document of a
contractual nature executed by the parties or either of them in
furtherance of the objectives of this Loan Agreement.
F. To abide by all the terms of this agreement, it being expressly
understood that if Borrower should fail to perform in whole or in
part any one or more of the requirements herein contained, Bank
may accelerate the maturity of said loan so that the remaining
unpaid balance, including advances made as aforesaid, with
interest accrued thereon, may, at the option of the Bank, be
declared immediately due and payable.
G. No representations of any kind have been made to Borrower by Bank
except as specifically set forth in this agreement. Only the
CEO, President, or Commercial Loan Vice President are authorized
to make any representations which might bind the Bank.
H. By mutual agreement in writing, Bank and Borrower may make other
or additional Loan Agreements.
Dated January 24, 2001
New Mexico Software, Inc.
a New Mexico Corporation
by: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, Guarantor
LOS ALAMOS NATIONAL BANK
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, Chairman and CEO
Promissory Note
Los Alamos National Bank
X.X. Xxx 00, Xxx Xxxxxx, XX 00000 (505) 662-5171
New Mexico Software, Inc.
a New Mexico Corporation
0000 Xxxxxx Xxxxxx Xxxx XX
Xxxxxxxxxxx, XX 00000
(Borrowers Name and Address)
$300,000.00 January 24, 2001
(Loan Amount) (Date)
FOR VALUE RECEIVED, and on demand, or if no demand is made, then according
to the payment schedule below, the maker(s), endorser(s), surety(s), and
cosigner(s), jointly and severally, hereinafter called "Borrower(s)",
promise to pay to the order of LOS ALAMOS NATIONAL BANK, hereinafter called
"Lender", at its office in Los Alamos, New Mexico, Three Hundred Thousand
and no/100's DOLLARS principal plus interest, payable on or before July 24,
2001.
This loan bears interest at the interest rate indicated below: (check one)
__ a fixed rate equal to __% per annum; or
__ a floating rate equal to Base Rate plus __% per annum. Base Rate
being that rate of interest announced from time to time by Los Alamos
National Bank as its Base Rate, which may or may not be the lowest
rate of interest charged by the Bank, with adjustments in the rate to
be made on the same day as each change in the Base Rate, but in no
event shall the rate applicable to this loan be less than __% per
annum, the initial rate being __% per annum, with such interest
calculated on the basis of a 365 day year; or
X Wall Street Journal Prime Rate plus 1.00% for an initial rate of
10.00%.
This loan bears interest at the rate of interest indicated above, with such
interest being calculated as indicated below:
__ as a regular loan, with the principal of this loan being disbursed
in its entirety on the date hereof and interest accruing on the
principal amount from the date hereof until paid; or
X as a line of credit, with the principal of this loan being
advanced in one or more draws and interest accruing only on the amount
drawn from the date of the draw to the date of repayment.
X Borrower will reduce the line of credit principal and
interest to zero and rest the line for at least thirty days (30)
annually.
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 due 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.
Borrower(s) hereby 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. Borrower(s) hereby agree to any renewal of this note or
to any extensions, acceleration, or postponement of the time of payment or
any other indulgence. Borrower(s) hereby agree 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
Lender or notice to Borrower(s).
If Lender at any time in good faith believes for any reason, including any
default as described in any security agreement, assignment, pledge
agreement, or mortgage which provides security for this loan, that the
prospect of receiving any payment required by this note is impaired, the
unpaid balance of this note and any other liabilities of the Borrower(s) to
the Lender, direct or indirect, absolute or contingent, now or heretofore
existing or hereafter arising, shall become immediately due and payable, at
the option of the Lender without notice of demand.
The undersigned will pay on demand all costs of collection, including
reasonable attorney's fees incurred or paid by the Lender in attempting to
enforce payment of this note.
Any deposits and checking, savings, or any other types of accounts, or sums
at any time credited by or due from Lender to any Borrower hereof and any
securities or other property of any Borrower hereof in the possession of
Lender may at all times be held and treated as collateral security for the
payment of any and all obligations hereunder. Lender may, without notice
to the Borrower(s), 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.
This note may not be assumed without the prior written consent of Los
Alamos National Bank.
In signing this promissory note, Borrower(s) affirm that the primary
purpose of this loan is for commercial undertakings and acknowledge receipt
of a copy, certifying that it was filled in prior to signing.
Borrower(s) Guarantor(s)
New Mexico Software, Inc.
a New Mexico Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, Guarantor
This section is for information purposes; it may not include every
agreement or item of collateral securing this note.
__ This note is unsecured.
X This note is secured by All furniture, fixtures, equipment,
inventory, accounts, chattel paper, tangibles and general intangibles now
owned or hereafter acquired by New Mexico Software, Inc. and Letter of
Credit dated January 19, 2001 Number XXX000000 from Xxxxx Fargo Bank to
LANB as Beneficiary in the amount of $250,000.00.
More specifically described in:
X Security Agreement dated 1/24/01. __ Assignment dated ____.
__ Pledge Agreement dated ____. __ Mortgage dated ____.
X Loan Agreement dated 1/24/01.
The purpose of this loan is: Working Capital.
This loan is a renewal of 630349-70.
Officer: Xxxx Xxxxx/md
Approved by: /s/ Xxxx Xxxxx
Xxxx Xxxxx, Chairman and CEO
Los Alamos National Bank
Xxxx Xxxxxx Xxx 00 - Xxx Xxxxxx, Xxx Xxxxxx 00000 - (000) 000-0000
Continuing Guaranty
(1) For valuable consideration, the undersigned parties, herein called
Guarantor whether singular or plural, jointly and severally if more than
one, unconditionally guarantee and promise to pay, on demand and in lawful
money of the United States, to the order of Los Alamos National Bank,
herein called Bank, at its office at 1200 Trinity, Los Alamos, New Mexico,
any and all indebtedness to Bank of
New Mexico Software, Inc., a New Mexico Corporation
herein called Borrower whether singular or plural, and such indebtedness
herein called Borrower's Indebtedness. The term "Borrower's Indebtedness"
is used in this guaranty in its most comprehensive sense and includes any
and all advances, debts, obligations, and liabilities of borrower
heretofore, now, or hereafter made, incurred, or created, whether voluntary
or involuntary and however arising whether due or not due, absolute or
contingent, liquidated or unliquidated, determined or undetermined, and
whether Borrower may be liable individually or jointly with others, or
whether recovery upon Borrower's Indebtedness may be or hereafter become
barred by any statute of limitations, or whether Borrower's Indebtedness
may be or hereafter become otherwise unenforceable.
(2) The liability of Guarantor under this Guaranty herein called
Guarantor's Liability, shall not exceed at any one time the sum of
principal plus interest thereon,
Fifty Thousand and no/100's Dollars ($50,000.00)
(3) Notwithstanding the foregoing limitation on Guarantor's Liability
hereunder, Bank may permit Borrower's Indebtedness to exceed Guarantor's
Liability. This is a continuing guaranty relating to all of Borrower's
Indebtedness, including that arising under successive transactions which
shall either continue Borrower's Indebtedness or from time to time renew it
on the same or different terms after it has been satisfied. This Guaranty
shall not apply to any of Borrower's Indebtedness created after actual
receipt by Bank of written notice of Guarantor's revocation of this
Guaranty as to future transactions, provided that any such revocation as to
future transactions shall not apply to (a) future disbursements made under
any multiple advance loans to Borrower, (b) loans to Borrower which Bank
has committed to make prior to actual receipt by Bank of written notice of
revocation as to future transactions, or (c) any renewals or extensions of
Borrower's Indebtedness outstanding prior to actual receipt by Bank of
written notice of revocation as to future transactions. Any such
revocation of this Guaranty as to future transactions by one or more of the
undersigned Guarantors shall in no way affect the liability of the
remaining Guarantors as to any future transactions. Any payment made by
Guarantor under this Guaranty shall not reduce Guarantor's Liability unless
written notice to that effect is actually received by Bank at or prior to
the time of such payment.
(4) Guarantor's obligations hereunder are joint and several, and are
independent of the obligations of borrower. A separate action or actions
may be brought and prosecuted against Guarantor, whether or not action is
broucht against Borrower, and whether or not Borrower is joined in any such
action or actions. Guarantor waives the benefit of any statute of
limitations affecting Guarantor's liability hereunder or the enforcement
thereof.
(5) Guarantor authorizes Bank, without notice or demand, and without
affecting Guarantor's Liability thereunder from time to time to (a) renew,
compromise, extend, accelerate, or otherwise change the time for payment of
or other terms of Borrower's Indebtedness or any part thereof, including
increasing or decreasing the rate of interest thereon; (b) take and hold
security for the payment of this Guaranty or Borrower's Indebtedness, and
exchange, enforce, waive, forego, and release such security; (c) apply such
security and direct the order or manner or sale thereof as Bank in its
discretion may determine; (d) release or substitute any Guarantor or
endorser of Borrower's Indebtedness; and (e) assign this Guaranty in whole
or in part without notice.
(6) If Borrower fails to pay Borrower's Indebtedness, or any part thereof,
when due, whether by acceleration or otherwise, according to the terms
thereof, Guarantor, immediately upon written demand of Bank, will pay to
Bank the amount of Borrower's Indebtedness then due, as if that amount
constituted the direct and primary obligation of Guarantor.
(7) In addition to all liens upon, and rights of setoff against, the
moneys, securities, and other property of Guarantor given to Bank by law,
Bank shall have a lien upon and a right of setoff against all moneys,
securities, and other property of Guarantor now or hereafter in the
possession of or on deposit with Bank, whether held in a general or special
account or deposit, or for safekeeping or otherwise; and every such lien
and right of setoff may be exercised without demand upon or notice to
Guarantor. No lien or right of setoff shall be deemed to have been waived
by any act or conduct of Bank, or by any failure to exercise such right of
setoff or to enforce such lien, or by any delay in doing so, and every
right of setoff and lien shall continue in full force and effect until such
right of setoff or lien is specifically waived or released by written
instrument executed by Bank.
(8) Guarantor waives any right to require Bank to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower;
or (c) pursue any other remedy in Bank's power whatsoever. Guarantor
waives any claim of exemption and consents that any subsequent execution
for Borrower's Indebtedness guaranteed hereby may be satisfied without
limitation or exclusion by any exemption for homestead or otherwise.
Guarantor waives any defense arising by reason of any disability or other
defense of Borrower, or because Borrower ceases, for any reason, to be
liable for repayment of Borrower's Indebtedness or any portion thereof.
Until Borrower's Indebtedness is paid in full, even though Borrower's
Indebtedness is in excess of Guarantor's Liability hereunder, Guarantor
shall have no right of subrogation, and waives any right to enforce any
remedy which Bank now has or may hereafter have against Borrower, and
waives any benefit of and any right to participate in any security now or
hereafter held by Bank. Guarantor waives all presentments, demands for
performance, notices of non-performance,
protests, notices of protests, notices of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation, or incurring of
new or additional Borrower's Indebtedness.
(9) If a petition in bankruptcy or for an arrangement or reorganization of
Borrower under federal bankruptcy laws, or for the appointment of a
receiver for Borrower or any of its property is filed by or against
Borrower, or if Borrower makes an assignment for the benefit of creditors
or becomes insolvent, all of Borrower's Indebtedness shall, for purposes of
this Guaranty, be deemed at Bank's election, to have become immediately due
and payable.
(10) Any indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to Borrower's Indebtedness to bank. If bank so
requests, the indebtedness of Borrower to Guarantor shall be collected,
enforced, and received by Guarantor as trustee for Bank, and shall be paid
to Bank on account of Borrower's Indebtedness to bank without reducing or
otherwise affecting in any manner Guarantor's liability.
(11) Where any one or more of Borrowers are corporations, LLC or
partnerships, it is not necessary for Bank to inquire into the powers of
Borrowers or of the officers, directors, members, managers, partners, or
agents acting or purporting to act on their behalf, and any of Borrower's
Indebtedness made or created in reliance upon the professed exercise of
such powers shall be guaranteed hereunder.
(12) Guarantor agrees to pay a reasonable attorney's fee and all other
costs and expenses which are incurred by Bank in enforcing this Guaranty.
(13) Each Guarantor agrees that recourse may be had against his or her
separate and community property for all of his or her obligations under
this Guaranty.
(14) If more than one Borrower is named herein, or if more than one
Guarantor has executed this Guaranty, than the words "Borrower" and
"Guarantor" respectively, shall at once mean all of them together and
collectively, each of them jointly with each of the others, and each of
them separately and severally.
(15) Bank makes no representations to nor agreements with Guarantor which
limit or qualify in any way the terms of this Guaranty or the liabilities
and obligations of Guarantor hereunder.
(16) This Guaranty shall also bind the heirs, personal representatives,
successors and assigns of Guarantor and shall inure to Bank and its
successors and assigns.
(17) This Guaranty shall be governed by, subject to, and construed pursuant
to the laws of the State of New Mexico. Guarantor hereby consents to the
jurisdiction of the United States District Court for the District of New
Mexico or state courts of the State of New Mexico in any action seeking to
enforce this Guaranty.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty
this
January 24, 2001.
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx Xxxxxxxx
Los Alamos National Bank
X.X. Xxx 00, Xxx Xxxxxx, Xxx Xxxxxx 00000 (505) 662-5171
INTEREST RATE CHANGE
ALLONGE
AGREEMENT
By mutual agreement and for mutual and valuable consideration, receipt
of which is hereby acknowledged, the undersigned borrower(s), herein
called Borrower, whether singular or plural, and Los Alamos National
Bank, Los Alamos, New Mexico, herein called Lender, hereby implement
the following amendment(s) to the original loan by Lender to Borrower
described below. Unless expressly amended by this allonge, all terms,
conditions, covenant, collateral, liens, obligors, guarantors, and
discourses in effect for the original loan on the date of this allonge
remain in full effect and unchanged by this allonge.
DESCRIPTION OF ORIGINAL LOAN BEING AMENDED BY THIS ALLONGE
Original Note Number Original Note Date Original Note Amount Current Principal Balance
630349-71 January 24, 2001 $ 300,000.00 $ 300,000.00
PAYMENT EXTENSION
Original Due Date Original Payment Amount Extended Due Date Extended Payment Amount
(including principal and interest)
July 24, 2001 $315,958,.58 July 24, 2002 $300,000.00
Cumulative Number of Amount of Interest Due to be Paid by Borrower Non-Refundable Extension to be Paid by
Times Extended on Signing of this Allonge Borrower on Signing of This Allonge
2 $ 12,041.06 $50.00
AGREEMENT BETWEEN LENDER & BORROWER WITH REGARD TO FUTURE INTEREST RATE CHANGES
Apply with lender
INTEREST RATE CHANGE
Old Interest Rate New Interest Rate Effective Date of Rate Change
8.00% 7.00% January 24, 2002
OTHER AMENDMENTS
In no event shall the interest rate on this note be less than 7.00% per annum.
REASON FOR THIS ALLONGE
To establish a minimum annual interest rate of 7.00% and to extend the maturity
date.
DATE LENDING OFFICER'S CERTIFICATION AND APPROVAL
January 24, 2002 I certifiy that I have received all
documentation supporting the above-referenced
BORROWER'S NAME AND ADDRESS loan, and that, except as expressly provided
New Mexico Software, Inc. herein, this allonge in no way diminishes the
a New Mexico Corporation Lender's position therin. On behalf of
0000 Xxxxxx Xxxxxx Xxxx XX Lender, I hereby approve this allonge.
Xxxxxxxxxxx, Xxx Xxxxxx 00000
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, Chairman and CEO
BORROWER'S SIGNATURE
By: /s/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, President Xxxxxxx X. Xxxxxxxx, Guarantor
