EXHIBIT 10.14
LOAN AGREEMENT
CRESTMARK: CRESTMARK BANK, A MICHIGAN BANK
BORROWER: BIG BUCK BREWERY & STEAKHOUSE, INC., A MICHIGAN CORPORATION
TYPE/AMOUNT: TERM LOAN ($1,400,000.00)
DATE: NOVEMBER 20, 1998
LOAN AGREEMENT
This Agreement is made this 20th day of November, 1998 by and between
Crestmark Bank, a Michigan bank, whose address is 000 Xxxx Xxxx Xxxx Xxxx, Xxxx,
Xxxxxxxx 00000 ("Crestmark") and Big Buck Brewery & Steakhouse, Inc., whose
principal place of business and chief executive office is located at 000 Xxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxx ("Borrower").
W I T N E S S E T H :
WHEREAS, Borrower desires to borrow certain sums of money from
Crestmark on the terms and conditions as hereinafter set forth;
WHEREAS, Crestmark is willing to lend such sums to Borrower, provided
Borrower complies with all terms and conditions hereinafter set forth; and
WHEREAS, the repayment of the Loan will be secured by a second lien on
all assets of the Borrower.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, and in reliance upon the representations and warranties
hereinafter contained, and subject to the terms and conditions hereinafter
contained, it is hereby agreed between the parties as follows:
1.1 DEFINITIONS:
In this Agreement and in the Collateral Documents (unless the context
thereof requires a contrary definition or unless the same shall be defined
therein, in which latter event, the definitions shall be cumulative and not
exclusive), the following words, phrases, and expressions shall have the
respective meanings attributed to them, to be equally applicable to both the
singular and plural forms, unless the plural form is the term so defined.
1.1.1 "ACCOUNT RECEIVABLE" OR "ACCOUNT" has the meaning ascribed to
such terms under the Uniform Commercial Code, and, without limiting the
foregoing, shall also mean and include any and all other forms of obligations
now owned or hereafter arising or acquired by Borrower evidencing any obligation
for payment for goods of any kind, nature, or description sold or leased or
services rendered, and all proceeds of any of the foregoing.
1.1.2 "ACCOUNT DEBTOR" means any party liable to Borrower for the
payment of an Account.
1.1.3 "AGREEMENT" means this Loan and Financing Agreement, and all
amendments, modifications, extensions and renewals hereof.
1.1.4 "BORROWER" means as defined in the preamble to this Agreement.
1.1.5 "BUSINESS DAYS" means each weekday on which Crestmark is open
during Crestmark's normal course of business.
1.1.6 "COLLATERAL" means any and all of the following now or hereafter
owned (except as provided herein) by Borrower or others pledging same to
Crestmark pursuant to this Agreement or pursuant to any of the Collateral
Documents, including but not by way of limitation thereof:
a. all Accounts Receivable and/or Accounts, cash, documents,
chattel paper, certificates of deposit, instruments, contract rights, general
intangibles, goodwill, patents, tradenames, trademarks, copyrights,
licenses, brands, trade secrets, customer lists, route lists, computer software,
report catalogs, choses in action, notes, drafts, acceptances, tax refunds,
judgments, sums due and any other form of obligation requiring the payment of
money to Borrower, and any claim by Borrower for any of the foregoing;
b. all Inventory, goods, merchandise, products, supplies,
commodities, raw materials, finished goods and work in process;
c. all Equipment, including all machinery, furniture,
fixtures, trade fixtures, tools, dies, leasehold improvements, furnishings, and
titled vehicles and all repossessions and returns of any of the foregoing
located at the locations listed on Exhibit B hereto;
d. all other property (real, personal, tangible, intangible,
or any combination thereof) of Borrower, including, monies, deposit, accounts,
claims and credit balances;
e. all property, collateral or security described in the
Collateral Documents;
f. all accessions, accessories, parts, attachments, additions,
substitutions and replacements of any of the foregoing, used or intended for use
in connection with any of the foregoing;
g. all proceeds, products, proceeds of insurance, proceeds of
eminent domain proceedings and condemnation awards arising from or relating to
all of the foregoing, now or hereafter owned or claimed by Borrower or others
pledging same to Crestmark pursuant hereto or pursuant to the Collateral
Documents; and
h. excepting therefrom all equipment, machinery, furniture and
fixtures, trade fixtures, tools, dies, leasehold improvements, furnishings
located at locations other than those locations listed on Exhibit B.
1.1.7 "COLLATERAL DOCUMENTS" means any and all documents, instruments,
notes, agreements, and written memoranda, referred to in this Agreement or
executed in connection herewith or therewith, now or hereafter existing, and
specifically, but not by way of limitation, the Note and those documents
identified in Section .
1.1.8 "CONSISTENT BASIS" means, in reference to the application of
Generally Accepted Accounting Principles, that the accounting principles
observed in the current period are comparable in all material respects to those
applied in the preceding periods.
1.1.9 "CRESTMARK" means as defined in the preamble to this Agreement.
1.1.10 "DEFAULT" means and shall exist upon the occurrence of any
breach, omission, violation, misstatement, non-observance or non-performance by
Borrower of any representation, warranty, covenant, term, condition, obligation,
provision or undertaking under this Agreement or any of the Collateral
Documents, including, but not limited to, Borrower's failure to pay any
Indebtedness immediately on demand by Crestmark.
1.1.11 "EVENT OF DEFAULT" shall mean, by way of example, but not by way
of limitation, the occurrence of any event, act, omission, breath failure,
violation or other non-observance or non-performance by Borrower or any Person,
of any covenant, condition, agreement, duty provision or undertaking under this
Agreement or any of the Collateral Documents.
1.1.12 "EQUIPMENT" has the meaning ascribed to such term under the
Uniform Commercial Code, and without limiting the foregoing, shall also mean and
include all goods, equipment, furniture, fixtures, trade fixtures, leasehold
improvements, machinery, tools, contrivances and other items of personal
property (other than Inventory) of every kind and description, and wheresoever
located, together with all additions, attachments,
accessions, parts, replacements, substitutions and renewals thereof or
therefore, and all proceeds of any of the foregoing, now owned or hereafter
acquired by any party, person or entity pledging same to Crestmark.
1.1.13 "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means those
principles set forth in Opinion of the Accounting Principles Board of the
American Institute of Certified Public Accountants and the Financial Accounting
Standards Board, or which have other substantial authoritative support and are
applicable in the circumstances as of the date of the report.
1.1.14 "INDEBTEDNESS" means and includes by way of example, but not by
way of limitation:
a. the Loan, and all loans, indebtedness, expenses and
liabilities of Borrower to Crestmark whether arising under this Agreement, any
of the Collateral Documents, or any other agreement of whatsoever kind, nature
and description, primary or secondary, direct, absolute or contingent, due or to
become due, and whether now existing or hereafter arising and howsoever
evidenced or acquired, and whether joint, several, or joint and several; and
b. all present and future Money Advances made by Crestmark in
connection with the Loan or any loan and the Collateral Documents, or otherwise,
and whether made at Crestmark's option or otherwise, and the Loan, the Note and
all notes now or hereafter executed or existing in connection herewith, and
interest accrued thereon, from time to time; and
c. all future advances made by Crestmark for the protection or
preservation of Crestmark's rights and interests in the Collateral, or arising
under this Agreement or the Collateral Documents, including, but not by way of
limitation, advances for taxes, levies, assessments, insurance or maintenance of
the Collateral, and reasonable attorneys fees; and
d. all costs and expenses, including without limitation
reasonable attorneys' fees, incurred by Crestmark in connection with or arising
out of the protection, enforcement or collection of the Indebtedness or expenses
incurred in answering general legal issues involving the Borrower; and
e. all costs and expenses incurred by Crestmark in connection
with, or arising out of, the sale, disposition, liquidation or other realization
[including, but not by way of limitation, the taking, retaking or holding, and
all proceedings (judicial or otherwise)] of the Collateral, including, without
limitation, reasonable attorneys' fees.
1.1.15 "INVENTORY" has the meaning ascribed to such term under the
Uniform Commercial Code, and without limiting the foregoing, shall also mean and
include all goods, merchandise, products and commodities, held, acquired or
processed by Borrower and intended for sale or lease, and all raw materials,
goods in process and finished goods and supplies of every nature used or usable
in connection with the processing, shipping and sale thereof, regardless of
where the same may be situated, kept or stored, and whether now owned or
hereafter acquired by Borrower, and all of the proceeds of any of the foregoing.
1.1.16 "LOAN" means the Term Loan as hereinafter set forth in Section
2, any Money Advances made thereunder, and the Note, collectively.
1.1.17 "MONEY ADVANCE" means a loan or disbursement of money by
Crestmark, or any other advance of credit by Crestmark, including, but not
limited to, amounts for the payment of interest, fees and expenses of Borrower
under the Loan or any loan.
1.1.18 "NOTE" means the Real Estate Mortgage Note and any other note
executed by Borrower evidencing the Loan or a loan, including all renewals,
extensions, amendments, modifications, restatements, roll-overs or substitutions
thereof, from time to time.
1.1.19 "PERMITTED ENCUMBRANCE" means and include any of the existing
agreements and obligations set forth or described on Exhibit "A" attached hereto
and made a part hereof, if any, without increase, amendment, modification,
extension thereto, or refinancing thereof. If Exhibit "A" is left blank, no
Permitted Encumbrances shall exist.
1.1.20 "PERSON" means, by way of example but not by way of limitation,
an individual, partnership, limited partnership, corporation, limited liability
company, trust, unincorporated organization, entity, government, governmental
agency or governmental subdivision.
1.1.21 "UNIFORM COMMERCIAL CODE" means Act 174 of the Michigan Public
Acts 1962, as amended, and except as otherwise expressly provided herein all
other terms used herein, but not defined herein, shall have the meanings
assigned to them in Article 9, or absent definition in Article 9, in any other
Article of the Uniform Commercial Code.
1.2 LOAN COMMITMENT:
Subject to the terms and conditions contained herein, and upon the
condition that no Default shall exist, Crestmark agrees that it shall make Money
Advances under the Loan pursuant to the following commitment:
1.2.1 TERM LOAN COMMITMENT:
a. Commitment: Bank agrees to make a money advance of ONE
MILLION FOUR HUNDRED THOUSAND ($1,400,000.00) Dollars, the proceeds of which are
to be used to invest in a Missouri Limited Partnership with Bass Pro Outdoor
World, L.P., for the down payment on a site in Atlanta, Georgia, and for working
capital, to be repaid in accordance with a Real Estate Mortgage Note
(hereinafter referred to as "Term Loan");
b. Conditions: subject to the terms and conditions contained
in this Agreement, and upon the condition that no Event of Default shall then
exist and further provided that all conditions precedent hereto and thereto have
been met in the sole discretion of Bank, Bank agrees that it shall fund the Term
Loan.
1.2.2 COMMITMENT FEE: Borrower has paid or will pay to Crestmark a
non-refundable Commitment Fee in the aggregate amount of FOURTEEN THOUSAND
DOLLARS ($14,000.00) for the extension of the Loan, which fee has been fully
earned by Crestmark.
1.3 LOAN ACCOUNT:
1.3.1 DEBITS TO LOAN ACCOUNT: All Indebtedness under this Agreement
shall be charged to a loan account ("Loan Account") in Borrower's name on
Crestmark's books. Crestmark shall render to Borrower, a monthly statement of
the Loan Account, which shall be deemed to be correct and accepted by and
binding upon Borrower, unless Crestmark receives a written statement of
exception within ten (10) Business Days of mailing such statement. Crestmark
shall debit the Loan Account the amount of each Money Advance or expense when
made or incurred.
1.4 EVIDENCE OF INDEBTEDNESS:
Borrower shall execute a Real Estate Mortgage Note in the
principal amount of ONE MILLION FOUR THOUSAND AND NO/100 ($1,400,000.00)
DOLLARS, evidencing the maximum amount provided for under the Loan.
1.5 CROSS COLLATERALIZATION/CROSS DEFAULT:
CRESTMARK AND BORROWER AGREE THAT IT IS THEIR RESPECTIVE
INTENTIONS THAT SECTIONS 6 AND 12 RESPECTIVELY PROVIDE FOR CROSS
COLLATERALIZATION, WHEREBY ALL COLLATERAL IS SECURITY FOR ALL INDEBTEDNESS AND
UPON THE OCCURRENCE OF A DEFAULT, ALL INDEBTEDNESS SHALL BE MATURED, IMMEDIATELY
DUE AND PAYABLE, NOTWITHSTANDING ANY MATURITY DATE THEREOF, IF ANY, TO THE
CONTRARY. BORROWER FURTHER AGREES THAT THE LOAN SHALL BE CROSS-DEFAULTED WITH
ALL LOANS FROM CRESTMARK OR NBD BANK TO BORROWER. ACCORDINGLY, ANY DEFAULT UNDER
THIS AGREEMENT SHALL BE A DEFAULT UNDER EACH OF THE LOANS TO BORROWER, AND ANY
DEFAULT UNDER ANY LOAN TO BORROWER BY CRESTMARK OR NBD BANK SHALL BE A DEFAULT
UNDER THE AGREEMENT.
1.6 GRANT OF SECURITY INTEREST:
1.6.1 GRANT OF SECURITY INTEREST: Borrower grants to Crestmark a
continuing security interest in and second lien on the Collateral, now existing
or hereafter arising, and all proceeds and products thereof, as security for the
timely repayment of all Indebtedness, as herein provided for, or as provided for
in the Collateral Documents. Borrower acknowledges that nothing contained in
this Agreement shall be (i) construed as an agreement by Crestmark to resort to
or look to a particular type of the Collateral as security for the repayment of
the Indebtedness or (ii) deemed to limit or reduce any security interest in or
lien upon any portion of the Collateral for the Indebtedness. While this
Agreement is in effect, Borrower shall not sell any Collateral except in the
ordinary course of business.
1.6.2 PERFECTION OF SECURITY INTEREST: Borrower shall execute and
deliver to Crestmark, concurrently with Borrower's execution of this Agreement
and at any time or times hereafter at the request of Crestmark (and pay the cost
of filing or recording same in all public offices deemed necessary by Crestmark)
all financing statements, assignments, certificates of title, applications for
vehicle titles, affidavits, reports, notices, schedules of Accounts,
designations of Inventory, letters of authority and all other documents that
Crestmark may reasonably request, in form satisfactory to Crestmark, to perfect
and maintain the perfection of Crestmark's security interests in the Collateral.
Borrower shall also make appropriate entries on its books and records disclosing
Crestmark's security interests in the Collateral.
1.6.3 BORROWER REMAINS LIABLE: Anything contained herein to the
contrary notwithstanding, (a) Borrower shall remain liable for all damages,
obligations, and liabilities under the contracts and agreements included in the
Collateral to perform all of its duties and obligations to the same extent as if
this Agreement had not been executed, (b) the exercise by Crestmark of any of
its rights under this Agreement or the Collateral Documents shall not release
the Borrower from any of its duties or obligations under the contracts and
agreements included in the Collateral and (c) Crestmark shall have no obligation
or liability under the contracts and agreements included in the Collateral, nor
shall Crestmark be obligated to perform any of the obligations or duties of
Borrower thereunder or to take any action to collect or enforce any claim for
payment. Borrower shall pay all taxes, levies, assessments and charges of any
kind upon or related to the Collateral, Borrower's business, income, revenues
and assets.
1.7 COLLATERAL DOCUMENTS:
Borrower and others herein required have also executed and delivered to
Crestmark the following documents, which are part of the Collateral Documents:
1.7.1 SECURITY AGREEMENT: A Security Agreement dated of even date
herewith granting Crestmark a valid, enforceable, second security interest in
all assets of Borrower, now owned or hereafter acquired, described in the
Security Agreement, junior only to the first lien of NBD Bank.
1.7.2 FINANCING STATEMENTS: A Uniform Commercial Code Financing
Statement executed by Borrower and satisfactory to Crestmark, sufficient to
perfect a valid and enforceable security interest and lien of
the second priority, in and to all assets of Borrower, now owned or hereafter
acquired, as described in the Security Agreement.
1.7.3 SECOND MORTGAGE: A Second Mortgage in form and substance
satisfactory to Crestmark in recordable form, executed by Guarantor in favor of
Crestmark, with respect to Borrower's store, located in Gaylord, Michigan,
("Premises") Said mortgage shall be sufficient, upon recording, to create a
valid, enforceable mortgage lien of the second priority in and to the store,
together with an A.L.T.A. Mortgage Title Insurance Commitment, in form and
substance satisfactory to Crestmark. The final policy to be issued pursuant to
such commitment insuring such Second Mortgage in the amount required by
Crestmark, as a second lien priority. Borrower shall comply with all
requirements of the title insurance company necessary to insure Crestmark's
second lien priority, without exceptions. Bank's second mortgage lien shall be
junior only to NBD's first mortgage lien with a principal balance due and owing
no more than $1,878,543.83.
1.7.4 RESOLUTIONS: Certified Corporate Resolutions authorizing the
Borrower to enter into the Loan Agreement and the Collateral Documents.
1.7.5 MORTGAGOR'S CONSENT: A consent from NBD to the second mortgage
referenced above, together with such other information or representations as may
be required from NBD.
1.8 REPRESENTATIONS AND WARRANTIES:
Borrower represents and warrants to Crestmark that:
1.8.1 ORGANIZATION AND AUTHORITY: Borrower is a corporation, duly
organized and in good standing under the laws of the State of Michigan and has
the corporate power and authority to own its assets and transact its business.
The Person executing this Agreement has full power and complete authority to
execute this Agreement and all Collateral Documents on behalf of Borrower.
Borrower is in compliance with all SEC Rules and Regulations.
1.8.2 TRANSACTIONS LEGAL AND AUTHORIZED: The execution, delivery and
performance of this Agreement, the Collateral Documents and the other
instruments and documents related thereto have been duly authorized by
appropriate corporate action of Borrower, and the execution, delivery and
performance of this Agreement, the Collateral Documents and other instruments
related thereto are not in contravention of Borrower's Articles of Incorporation
or By-Laws, or of the terms of any contract, indenture, agreement or undertaking
to which Borrower is a party or by which it is bound.
1.8.3 ENFORCEABILITY OF OBLIGATIONS: Borrower's Indebtedness to
Crestmark, this Agreement and all Collateral Documents have been duly executed,
are valid, binding upon, in full force and effect and fully enforceable against
Borrower, or any other party thereto in accordance with their respective terms.
1.8.4 PERMISSIONS: Borrower has all requisite permissions, licenses,
registrations and permits required to conduct its business under the laws of the
United States as well as the laws of any state or any foreign country in which
it conducts business. The foregoing constitute all of the authorizations
required by any Person for the operation of Borrower's business in the same
manner as presently conducted, and as proposed to be conducted or conducted from
and after the date hereof. All of the foregoing have been validly issued and are
in full force and effect. To the best of the knowledge and belief of Borrower,
after due investigation, no event has occurred which permits, or after notice or
lapse of time, or both, would permit, revocation or termination of any of the
foregoing or which materially and adversely affects, or in the future may (so
far as Borrower can now reasonably foresee) materially and adversely affect, the
rights of Borrower.
1.8.5 LITIGATION: Borrower represents that there is no litigation or
other proceeding before any court or administrative agency, domestic or foreign,
is pending or threatened litigation.
1.8.6 FINANCIAL STATEMENTS/REPORTS/CERTIFICATES:
a. EXISTING FINANCIAL INFORMATION/NO ADVERSE CHANGES: The
financial statements furnished to Crestmark and filed with the SEC are true and
correct and have been prepared in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis throughout the periods involved. The
balance sheet fairly presents the condition of Borrower as of the date thereof,
and the profit and loss statement fairly presents the results of operations.
b. FUTURE FINANCIAL INFORMATION: All financial information,
statements, reports and certificates required by this Agreement including, but
not by way of limitation, by Section hereof, will to the best knowledge of
Borrower, be true and accurate.
c. PROJECTED FINANCIAL INFORMATION: The projected financial
statements furnished to Crestmark are based upon reasonable assumptions or facts
then known to Borrower, and fairly present, to the best knowledge of Borrower,
the projected condition of Borrower as therein set forth, and fairly present, to
the best knowledge of Borrower, the projected results of operations. There have
been no material and adverse changes in the projections or financial statements
of Borrower, financial or otherwise subsequent to date of the most recent
projected financial statement furnished to Crestmark.
1.8.7 OWNERSHIP OF COLLATERAL; NO LIENS: Borrower is the owner of and
has good and indefeasible title to of all of the Collateral. The Collateral is
not subject to any liens, purchase options, mortgages, pledges, encumbrances,
claims (legal or equitable), or charges of any kind except Permitted
Encumbrances. Furthermore, no part of the Collateral has been disposed of since
the date of execution hereof, except in the ordinary and usual course of
business, and all Collateral is, and will be located at Borrower's addresses
specified herein, unless disclosed to Crestmark from time to time in writing,
prior to being moved. Borrower's security interest in the Collateral is a first
priority security interest, and Borrower will defend and indemnify Crestmark
against the claims and demands of all other persons claiming an interest in the
Collateral.
1.8.8 LOCATION OF COLLATERAL: All of the Collateral is located in
Michigan at the locations listed on Exhibit B attached hereto, and Borrower
shall not move the Collateral outside of Michigan without the prior written
consent of Crestmark. Borrower shall not change its name, adopt an assumed name,
or move its chief executive office without giving Crestmark at least thirty (30)
days prior written notice.
1.8.9 TAX RETURNS/TAXES: Borrower has filed all federal, state, local
and foreign tax returns which are required to be filed and has paid all taxes,
withholdings, assessments and other government charges which have become due.
Borrower does not know of any proposed material additional tax assessment
against it, or any of its properties, or any basis therefore.
1.8.10 NON-RELIANCE: Crestmark has not undertaken to advise Borrower
with respect to the adequacy of the financial accommodations herein set forth,
but the financial accommodations are solely the decision of Crestmark as to the
type and amount of credit Crestmark is willing to extend and Borrower has made
the decision, exclusive of any statements of Crestmark, or any of its officers
or employees, to accept the same without inducement and/or reliance upon
Crestmark and/or any of its officers and employees.
1.8.11 FULL DISCLOSURE: Neither this Agreement nor any written
statement furnished by or on behalf of Borrower to Crestmark in connection with
the negotiation or the making of the Loan contemplated hereby, taken as a whole,
contains any untrue statement of a material fact or omits a material fact
necessary to make the statements contained therein or herein not misleading.
There is no fact relating to Borrower or the business of Borrower which Borrower
has not disclosed to Crestmark in writing, which materially and adversely
affects, nor as far as Borrower can now foresee, will materially and adversely
affect any of the properties, business, prospects,
profits or conditions (financial or otherwise) of Borrower, or the ability of
Borrower to consummate the transactions or perform and carry out its obligations
and undertakings contemplated or provided in this Agreement.
1.8.12 SOLVENCY: The Borrower is solvent, able to pay its debts as they
mature, does not have unreasonably small capital and has assets the fair market
value of which exceeds its liabilities. The Borrower will not be rendered
insolvent, undercapitalized or unable to pay maturing debts as a result of the
execution of this Agreement or the Collateral Documents.
1.8.13 FORECLOSURE: The Premises are not subject to the institution of
remedial proceedings, foreclosure or other exercise of rights and remedies by
the holder of any security interest against the Collateral or any portion
thereof.
1.8.14 BANKRUPTCY: The Borrower is not the subject of any bankruptcy,
reorganization, arrangement, insolvency or other similar proceeding.
1.8.15 CASUALTY LOSS OR JUDGMENT: The Collateral has not suffered any
loss, substantial damage, destruction, or the issuance or filing of any
attachment, levy, garnishment or the commencement of any related proceeding upon
or in respect to the Borrower or the Collateral.
1.8.16 NO MATERIAL ADVERSE CHANGE: No material adverse change has
occurred in the existing or prospective financial condition, business, assets or
liabilities of the Borrower.
1.8.17 SURVIVAL AND CONTINUATION: All representations, warranties,
indemnifications, consents and agreements contained in this Agreement and/or any
of the Collateral Documents shall survive the execution of this Agreement, the
Collateral Documents and any investigations by Crestmark and shall be, and
continue at all times while any Indebtedness is outstanding, to be true and
accurate. Borrower shall immediately notify Crestmark, in writing, if any of the
foregoing are or have become untrue.
1.9 AFFIRMATIVE COVENANTS:
Borrower covenants and agrees, that so long as any Money
Advances are outstanding or commitments therefore exist under this Agreement and
until all Indebtedness due Crestmark is paid in full, Borrower shall:
1.9.1 PAYMENTS ON INDEBTEDNESS: Pay all Indebtedness when due,
including the principal amount of each Money Advance and accrued interest
thereon, in accordance with the terms of the Note and this Loan Agreement,
whether by acceleration or otherwise. Furthermore, Borrower shall not have any
Money Advances outstanding hereunder contrary to any provisions, limitations or
restrictions hereof, including, but not limited to, any Money Advances in excess
of the Term Loan which are not immediately repaid to Crestmark.
1.9.2 PERFORMANCE OF OBLIGATIONS: Perform or cause to be performed, all
of the terms, conditions, obligations and covenants of Borrower or any other
Person as required by this Agreement, the Collateral Documents or any other
agreement, note or other document executed between (a) Crestmark and (b)
Borrower and/or another Person, whether now existing or hereafter created and
take all action (or not fail to take any action or suffer or permit any
omission) necessary to maintain the representations and warranties made as true
and accurate.
1.9.3 MAINTENANCE OF EXISTENCE: Maintain its corporate existence and
all rights, licenses, leases, agreements and franchises helpful in continuing
the operation of its business in the same manner as of the date of execution
hereof.
1.9.4 INFORMATION: Furnish promptly and in a form satisfactory to
Crestmark, such information as Crestmark may request, from to time, and to
permit a representative of Crestmark access to any of its premises, computer
systems and financial records.
1.9.5 NOTIFICATION OF DISPUTES: Notify Crestmark promptly of any claim
adverse to, litigation, or administrative or tax proceeding, or other action
threatened or instituted against Borrower or any property of Borrower or any
other material matter which is not fully covered by insurance which could
adversely impair Borrower's financial condition or its ability to conduct its
business including, but not limited to, any inquiry or proceedings initiated by
any state, federal or foreign regulatory agency. For the purposes of this
Agreement, any single such claim, litigation, proceeding, matter, action or
inquiry in which the sum in dispute is Ten Thousand ($10,000.00) Dollars, or all
such claims, litigation, proceedings, matters, actions or inquiries in which the
aggregate sums in dispute are Twenty-Five Thousand ($25,000.00) Dollars or more,
shall be deemed to be material and adverse.
1.9.6 PAYMENT OF TAXES: Pay when due all taxes, assessments, and other
governmental charges to which Borrower or it's property is or shall be subject
before such charges become delinquent, except that no such charge need be paid
so long as its validity or amount is being contested in good faith by
appropriate proceedings and Borrower shall have established a cash reserve with
respect thereto; provided, however, that any such tax, assessment, or charge
shall be paid forthwith (under protest) upon the filing of any lien securing the
same, commencement of levy, other form of execution, or any other collection
action. Borrower shall, in any case involving a contested payment due from
Borrower in excess of Five Thousand ($5,000.00) Dollars, give written notice
thereof to Crestmark.
1.9.7 PAYMENT OF EXPENSES: Pay, on demand, all pre-closing expenses
incurred by Crestmark in consummating this Agreement and the Collateral
Documents, including reasonable attorneys' fees. Pay the Service Fee on the date
when due and any and all post-closing expenses, on demand, that may arise or
relate to this Agreement, the Collateral Documents or the Borrower, including
reasonable attorneys' fees.
1.9.8 INSURANCE: Maintain and/or cause any other Person pledging any of
the Collateral to maintain with respect to the Collateral pledged by such Person
insurance in such form and amount as is satisfactory to Crestmark, with loss
payable clauses in favor of Crestmark and providing that any losses under the
policies shall be payable to Crestmark. If Borrower fails to obtain or maintain
any required policies, then Crestmark, without waiving any Default by Borrower
relating thereto, may (but without any obligation) at any time thereafter make
such payment or obtain such coverage and take such other actions as Crestmark
deems advisable. Borrower shall not take out separate insurance concurrent in
form or contributing in the event of a loss. Borrower shall also maintain
insurance pursuant to all applicable Worker's Compensation laws, and liability
insurance for damage to persons. All such insurance shall be in such form, with
such companies and in such amounts as shall be acceptable to Crestmark and each
policy shall provide that the insurance company will provide at least thirty
(30) days notice to Crestmark prior to any cancellation or material alteration
or amendment of any policy. In the event any proceeds shall be payable to
Borrower, or otherwise become available, as a result of a casualty to any
Collateral, all such proceeds shall be the property of Crestmark, immediately
turned over to Crestmark and applied to the Indebtedness due Crestmark
1.9.9 COMPLIANCE WITH LAWS: Continue at all times to comply with all
laws, ordinances, regulations or requirements of any governmental authority
relating to Borrower's business, property or affairs, including, without
limitation, all environmental laws and the Fair Labor Standards Act of 1938, 29
U.S.C. 200, et seq., as amended from time to time.
1.9.10 CONTINUATION OF BUSINESS: Maintain and conduct its business in
substantially the same manner as such business is now or has heretofore been
carried on.
1.9.11 PRESERVATION OF COLLATERAL: Maintain the Collateral and every
part thereof, in good repair, working order and condition and, from time to
time, make all needful and proper repairs, renewals, replacements, additions,
improvements and such maintenance thereto, so that at all times the efficiency
of the Collateral shall be fully preserved and maintained. With respect to
Accounts, Borrower shall pursue collections diligently and present evidence
thereof to Crestmark, if requested. Borrower shall, upon request, immediately
deliver to Crestmark evidence of ownership and/or certificates of title relative
to the Collateral and shall place on or otherwise identify the Collateral with
such marks or other methods of identification sufficient to give notice of
Borrower's ownership thereof.
1.9.12 NOTICE OF DEFAULT: Immediately upon becoming aware of any
Default under this Agreement, give written notice thereof to Crestmark,
specifying the nature and period of existence thereof, and what action Borrower
is taking or proposes to take with respect thereto, but such notice shall not
cure the existence of a Default or prohibit Crestmark from exercising its
remedies hereunder.
1.9.13 FINANCIAL INFORMATION/REPORTS: Within the time periods
specified, and if no time period is specified, five (5) Business Days shall be
deemed the time period, deliver to Crestmark, all financial information,
reports, certificates, notices and other information herein required of
Borrower, pursuant to any provision of this Agreement or the Collateral
Documents.
1.9.14 KEY PERSONNEL: Xxxxxxx X. Xxxxxxxx shall continue to be part of
the active management and operation of Borrower's business.
1.10 NEGATIVE COVENANTS:
Borrower covenants and agrees, that so long as any Money
Advances are outstanding or commitments therefore exist under this Agreement,
and until all Indebtedness due Crestmark is paid in full, it will not:
1.10.1 NEGATIVE PLEDGE: Create, assume or otherwise suffer to exist any
mortgage, pledge or other encumbrance, or claim therefore, upon any of its
property (tangible, intangible, personal, real) or Collateral, now owned or
hereafter acquired, or increase, modify, amend, change or alter any
indebtedness, or security interest securing any such indebtedness, giving rise
to a Permitted Encumbrance, if any.
1.10.2 DIVIDENDS: Declare or pay any dividend, or make any other
distribution of, or with regard to, its capital stock or other equity security,
or purchase or retire any of its capital stock or other equity security.
Provided, however, with respect to any year in which Borrower is taxed by the
Internal Revenue Service as an "S" corporation, Borrower may make a distribution
of profits to its shareholders in an amount not to exceed the sum necessary to
enable its shareholders to pay their personal state and federal taxes directly
attributable to the profits earned by Borrower for the year.
1.10.3 LOANS/LIABILITIES: Make a loan, or incur or assume any
obligations or liability as lender, guarantor, surety, indemnitor or otherwise
with respect to any indebtedness or other obligation of any Person, unless such
obligation or liability does not materially adversely affect Borrower's ability
to repay the Loan at maturity.
1.10.4 DISTRIBUTIONS: Make, directly or indirectly, any disbursements,
loans, advances or distributions, in money or otherwise, other than customary
salary and bonuses, to any stockholders, officers or directors.
1.10.5 TRANSACTIONS WITH AFFILIATES/NO SUBSIDIARIES: Enter into any
transaction with any stockholders of Borrower or such stockholders' affiliates,
except on terms not less favorable than would be usual and customary in similar
transactions between persons or entities dealing at arm's length. Borrower does
not have and will not organize or acquire any subsidiaries.
1.10.6 DEFAULT IN PAYMENT OF OTHER DEBT: Default in the payment of any
indebtedness owed to NBD Bank or any successor or assign of NBD Bank for
borrowed money.
1.10.7 JUDGMENT: Suffer or permit any judgment, decree or order not
fully covered by insurance to be entered by a court of competent jurisdiction
against Borrower or Guarantor or permit or suffer any writ or warrant of
attachment or any similar process to be filed against Borrower or Guarantor or
against any property or asset of Borrower or Guarantor.
1.11 BOOKS/RECORDS/FINANCIAL REPORTS/CERTIFICATES:
Borrower covenants and agrees, that so long as any Money Advances are
outstanding or commitments therefore exist under this Agreement, and until all
Indebtedness due Crestmark is paid in full, it will keep proper books of
accounts in a manner satisfactory to Crestmark. Crestmark shall have the right,
at any time, to verify any of the collateral, documentation or books, whether
such documentation is furnished weekly, monthly or annually in whatever manner
and in whatever frequency it deems necessary, including through telephone
contact with customers or vendors.
1.12 REMEDIES UPON DEFAULT:
Upon the occurrence of any Default, Crestmark can charge the Default
Interest Rate on the Note, and Crestmark has the following rights and remedies,
provided further that the rights or remedies contained herein or otherwise
available shall be cumulative and not exclusive, together with any and all other
rights and remedies which may be available, whether contained in this Agreement,
the Collateral Documents, or available by virtue of law or equity, including the
Uniform Commercial Code and any action by Crestmark shall not serve to release
or discharge any other security, property or Collateral held by Crestmark in
connection with this transaction.
1.12.1 ACCELERATION: All Indebtedness shall accelerate without notice
or demand, and immediately be due and payable, without presentation, notice or
demand, notwithstanding the maturity or due date, if any, therein to the
contrary, all of which are expressly waived by Borrower.
1.12.2 ACCESS TO PREMISES/REPOSSESSION OF COLLATERAL: Crestmark or any
of its agents or representatives shall have the right to enter the premises of
Borrower or any other place(s) where the books, records and Collateral of
Borrower may then be kept and maintained, and remove all such books, records and
Collateral for such time as Crestmark may desire in order to effectively collect
and liquidate the Collateral. All expenses relating thereto, including moving
expenses, the leasing of additional facilities and the hiring of security guards
shall be borne by Borrower. Upon request by Crestmark, Borrower shall assemble
the Collateral and make it available to Crestmark at a time and place to be
designated by Crestmark which is reasonably convenient to Crestmark and
Borrower; Borrower shall fully cooperate with all of Crestmark's efforts to
preserve the Collateral and will take such actions to preserve the Collateral as
Crestmark may direct. Borrower also agrees that Crestmark shall also have the
right to peacefully retake the Collateral, and Borrower waives any right it may
have in such instances, to a judicial hearing prior to such retaking.
1.12.3 DISPOSITION OF THE COLLATERAL: Crestmark or any of its agents or
representatives shall have the right to sell and deliver the Collateral at a
public or private sale (by way of one or more contracts or transactions), by way
of parcels or in bulk, for cash, credit or otherwise, at such prices and upon
such terms as Crestmark or its agents deem advisable. Crestmark shall have no
obligation to preserve any rights to the Collateral or marshal any Collateral
for the benefit of any Person, including Guarantor.
1.12.4 WAIVERS: To the extent permitted by applicable law, Borrower
agrees to waive and does hereby absolutely and irrevocably waive and relinquish
the benefits and advantages of any valuation, stay, appraisement, extension or
redemption laws now or hereafter existing which, but for this provision, might
be applicable to any
sale made under the judgment, order or decree of any court, or otherwise, based
on any note contemplated hereby, or on any claim for interest on such notes, or
any security interest set forth in this Agreement.
1.12.5 APPOINTMENT OF RECEIVER: Crestmark shall be entitled, to the
extent provided by law, to the appointment of a receiver of the business and
premises of Borrower, and of the rents and profits derived therefrom, and all
Collateral. This appointment shall be in addition to any other rights, relief or
remedies afforded Crestmark. Such receiver, in addition to any other rights to
which he shall be entitled, shall be authorized to sell any and all property of
Borrower for the benefit of Crestmark pursuant to provisions of Michigan law and
the Uniform Commercial Code of Michigan. In the event of any deficiency,
Borrower and Guarantor shall remain liable therefor.
1.12.6 INJUNCTIONS: Borrower and Guarantor acknowledge that upon the
occurrence of a Default, no remedy at law will provide adequate relief to
Crestmark; therefore, Borrower agrees that Crestmark shall be entitled to
temporary and permanent injunctive, or other equitable relief in any such case
without proving actual damages, it being acknowledged that the nature of
Borrower's business dictates such relief is necessary in order to preserve the
Collateral and rights of Crestmark.
1.12.7 EXPENSES: Borrower shall pay to Crestmark, on demand, any and
all expenses, including reasonable attorneys' fees and collection expenses,
incurred or paid by Crestmark in protecting or enforcing its rights under this
Agreement, the Collateral Documents or pursuant to any other document or
agreement relating to the Loan. Crestmark shall apply the net proceeds of any
sale, disposition or holding of Collateral, after deducting all costs and
expenses of every kind incurred arising from the retaking, holding, preparing
for sale, selling, leasing or collecting or in any way relating to the rights of
Crestmark hereunder, to the payment of any portion of the Indebtedness, in whole
or in part, whether due or not due, absolute or contingent, making proper rebate
for interest or discount on items not then due, and only after so applying such
net proceeds and ascertainment by Crestmark of any other amounts required by any
existing or future provision of law, need Crestmark account to Borrower for
surplus, if any. Borrower shall remain liable to Crestmark for the payment of
any deficiency of any Indebtedness, together with interest thereon, until paid.
Crestmark shall not be required to proceed against any other party, or against
any other security for any Indebtedness or pursue any other right or remedy
hereunder, or under any other instrument or agreement, but all such rights and
remedies shall be cumulative and in addition to all other rights and remedies of
Crestmark.
1.12.8 ENFORCEMENT OF RIGHTS: Crestmark shall be entitled to enforce
its rights hereunder and to avail itself of its security interests in the
Collateral, simultaneously or successively, in such order and priority as
Crestmark shall determine. All rights, remedies and security interests in the
Collateral shall continue in full force and effect until all Indebtedness of
Borrower and Guarantor shall be satisfied in full, and no single action or
actions shall be deemed an election of remedies.
1.12.9 RIGHT OF OFFSET: Crestmark or its assigns shall have the right
of offset against any funds (i) of Borrower on deposit with or in the possession
of Crestmark, (ii) of Borrower on deposit in any account of Borrower established
pursuant to this Agreement or the Collateral Documents.
1.12.10 APPLICATION OF PROCEEDS: The proceeds of any sale or other
disposition of the Collateral shall be applied by Crestmark, first upon all
expenses authorized by this Agreement, the Collateral Documents or by law,
including reasonable attorney's fees incurred by Crestmark; the balance of the
proceeds of such sale or other disposition shall be applied to the payment of
the Indebtedness, first to interest, then to principal, then to other
Indebtedness, and the surplus, if any, shall be paid over to the Borrower or to
such other Person or Persons as may be entitled thereto under applicable law.
The Borrower and Guarantor shall remain liable for any deficiency, which the
Borrower or Guarantor shall pay to Crestmark immediately upon demand.
Nothing herein contained shall be construed to make Crestmark
an agent or Trustee of Borrower for any purpose whatsoever, and Crestmark shall
not be responsible or liable for any shortage, discrepancy,
damage, loss or destruction or any part of the Collateral wherever the same may
be located and regardless of the cause thereof (except to the extent it is
determined by final judicial decision that Crestmark's act or omission
constituted gross negligence or willful misconduct). Crestmark shall not, under,
circumstances or in any event whatsoever, have any liability for any error or
omission or delay of any kind occurring in the settlement, collection or payment
of any of the Accounts, liquidation of the Collateral or any instrument received
in payment thereof or for any damage resulting therefrom (except to the extent
it is determined by a final judicial decision that Crestmark's error, omission
or delay constituted gross negligence or willful misconduct). Crestmark does
not, by anything herein or in any assignment or otherwise, assume any of the
Borrower's obligations under any contract or agreement assigned to Crestmark,
and Crestmark shall not be responsible in any way for the performance by the
Borrower or Guarantor of any kind of the terms and conditions thereof.
1.13 NOTICE:
Any notice served to or upon Borrower shall be given to
Borrower for all purpose by being sent certified mail, return receipt requested,
postage prepaid, or other expedited mail service, addressed to Borrower at the
address hereinabove set forth, or at such other address as shall be designated
by Borrower to Crestmark in writing, and any such notice shall be given to
Crestmark, for all purposes, by being sent certified mail, return receipt
requested, postage prepaid, or other expedited mail service, to 000 Xxxx Xxxx
Xxxx Xxxx, Xxxx, Xxxxxxxx 00000 Michigan, or at such other address as Crestmark
may designate to Borrower in writing.
1.14 TERMINATION:
Crestmark may terminate this Agreement and its obligations
hereunder upon Event of Default, provided this Agreement shall not have been
terminated earlier because of an Event of Default, this Agreement terminates on
May 18, 1999. All of Borrowers obligations, duties, promises, covenants,
representations or warranties under this Agreement and Borrower's obligations,
duties, promises, covenants, representations or warranties under the Collateral
Documents, shall continue and remain in full force and effect until (i) the
Indebtedness is irrevocably paid in full in cash and (ii) Borrower receives
written notification of the termination of Loan from Crestmark.
1.15 CONDITIONS PRECEDENT TO ADVANCES:
1.15.1 CONDITIONS PRECEDENT TO INITIAL MONEY ADVANCES: The obligation
of Crestmark to make an initial disbursement or initial Money Advance is subject
to all the conditions and requirements of this Agreement and delivery of the
following required documents or other action, all of which are conditions
precedent:
a. CORPORATE STATUS: A Certificate of Good Standing of
Borrower certified by the State of Michigan, and any other State in which it
conducts business, to the effect that Borrower is authorized to do business
within said jurisdiction.
b. RESOLUTIONS: Certified resolutions of Borrower authorizing
the consummation of the transactions contemplated hereby and providing for the
execution of a written direction of payment if proceeds are to be paid to a
Person other than Borrower.
c. CERTIFIED DOCUMENTS: A true copy, as of the date of
execution hereof, of the Articles of Incorporation, and By-Laws of Borrower,
including all amendments to the foregoing, certified to by the secretary of
Borrower and a certified list of all names under which Borrower has over the
last five (5) years or now conducts business in each jurisdiction where it has
or now conducts business under such name(s).
1.16 MISCELLANEOUS:
1.16.1 BINDING EFFECT: This Agreement shall be binding upon and shall
inure to the benefit of Borrower and Crestmark, and their respective successors
and assigns, provided that the foregoing shall not authorize any assignment by
Borrower of its rights or duties hereunder, which assignment, in whole or in
part, by Borrower shall not be permissible.
1.16.2 DELAY/WAIVER: No delay or failure of Crestmark in exercising any
right, remedy, power or privilege hereunder shall affect such right, remedy,
power or privilege, nor shall any single or partial exercise thereof preclude
the exercise of any other right, remedy, power or privilege. No delay or failure
of Crestmark at any time to demand strict adherence to the terms of this
Agreement shall be deemed to constitute a course of conduct inconsistent with
Crestmark's right at any time to demand strict adherence to the terms of this
Agreement or the Collateral Documents.
1.16.3 INCORPORATION BY REFERENCE: The Collateral Documents are
incorporated herein by reference, and in the event any provision thereof is
inconsistent with the provisions of this Agreement, then this Agreement shall be
deemed paramount unless the rights and remedies of Crestmark would be adversely
affected or diminished thereby.
1.16.4 APPLICABLE LAW: This Agreement and the Collateral Documents
shall be interpreted, and the rights of the parties hereunder shall be
determined, under the laws of the State of Michigan.
1.16.5 FURTHER ASSURANCES: Borrower, from time to time, upon written
request of Crestmark, will make, execute, acknowledge and deliver all such
further and additional instruments and take all such further action as may be
required, to carry out the intent and purpose of this Agreement and to provide
for the payment of the Loan, note(s), borrowings and Money Advances, according
to the intent and purpose herein and therein expressed.
1.16.6 HOLD HARMLESS/INDEMNITY: Borrower hereby assumes responsibility
and liability for, and hereby holds harmless and indemnifies Crestmark from and
against, any and all liabilities, demands, obligations, injuries, costs, damages
(direct, indirect or consequential), awards, loss of interest, principal, or any
portion of the Indebtedness, charges, expenses, payments of monies and
reasonable attorney fees, incurred or suffered, directly or indirectly, by
Crestmark and/or asserted against Crestmark by any Person whatsoever, including
Borrower, which arise in whole or in part out of this Agreement, or the
Collateral Documents, or the relationship herein set forth or the exercise of
any right or remedy including the realization, disposition or sale of the
Collateral, or any portion thereof, or the exercise of any right in connection
therewith even if the above are caused by the sole action, inaction, omission or
negligence of Crestmark, but Borrower shall not be liable if the damages result
solely from the fraud or gross negligence of Crestmark.
1.16.7 SURVIVAL AND CONTINUATION: All representations, warranties,
covenants, indemnifications, consents and agreements contained in this Agreement
and/or any of the Collateral Documents shall survive the execution of this
Agreement, the Collateral Documents and any investigations by Crestmark and
shall be, and continue at all times while any Indebtedness is outstanding, to be
true and accurate. Borrower shall immediately notify Crestmark, in writing, if
any of the foregoing are or have become untrue.
1.16.8 COMPLETE AGREEMENT: This Agreement incorporates and/or contains
the entire agreement of the parties hereto and none of the parties shall be
bound by anything not expressed in writing.
1.16.9 SEVERABILITY: If any provision of this Agreement is in conflict
with any statute or rule of law or is otherwise unenforceable for any reason,
then that provision shall be deemed null and void to the extent of the conflict
or unenforceability and shall be deemed severable. The offending provision shall
not invalidate any other provision of this Agreement.
1.16.10 AMENDMENT: This Agreement and the Collateral Documents may only
be amended, modified or extended by written instrument executed by Crestmark and
Borrower.
1.16.11 DUPLICATE ORIGINALS: Two or more duplicate originals of this
Agreement may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument.
1.16.12 TIME OF ESSENCE: Time shall be of the essence in this
Agreement.
1.16.13 REINSTATEMENT: Borrower further agrees that to the extent
Borrower makes a payment or payments to Crestmark, which payment or payments or
any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment or repayment, the obligation
or part thereof intended to be satisfied shall be revived and continued in full
force and effect as if said payment had not been made.
1.16.14 CONSENT TO JURISDICTION: BORROWER HEREBY WAIVES ANY PLEA OF
JURISDICTION OR VENUE ON THE GROUNDS THAT BORROWER IS NOT A RESIDENT OF OAKLAND
COUNTY, MICHIGAN, AND HEREBY SPECIFICALLY AUTHORIZE, AT THE OPTION OF CRESTMARK,
ANY ACTION BROUGHT TO ENFORCE BORROWER'S OBLIGATIONS TO CRESTMARK TO BE
INSTITUTED AND PROSECUTED IN EITHER THE CIRCUIT COURT OF OAKLAND COUNTY,
MICHIGAN, OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
MICHIGAN, AT THE OPTION OF CRESTMARK, AND BORROWER HEREBY SUBMITS TO THE
JURISDICTION OF SUCH COURT.
1.16.15 RELEASE OF CLAIMS AGAINST CRESTMARK: In consideration of
Crestmark's making the Loan described in this Agreement, Borrower does hereby
release and discharge Crestmark of and from any and all claims, harm, injury,
and damage of any and every kind, known or unknown, legal or equitable, which
Borrower has against Crestmark from the date of Borrower's first contact with
Crestmark up to the date of this Agreement. Borrower confirms to Crestmark that
it has reviewed the effect of this release with competent legal counsel of their
choice, or have been afforded the opportunity to do so, prior to execution of
this Agreement and the Collateral Documents and each acknowledges and agree that
Crestmark is relying upon this release in extending the Loan to Borrower.
1.16.16 WAIVER OF JURY TRIAL: BORROWER DOES KNOWINGLY AND VOLUNTARILY
AND INTELLIGENTLY WAIVE THEIR CONSTITUTIONAL RIGHT TO A TRIAL BY JURY WITH
RESPECT TO ANY CLAIM, DISPUTE, CONFLICT OR CONTENTION, IF ANY, AS MAY ARISE
UNDER THIS AGREEMENT OR UNDER THE COLLATERAL DOCUMENTS, AND AGREE THAT ANY
LITIGATION BETWEEN THE PARTIES CONCERNING THIS AGREEMENT AND THE COLLATERAL
DOCUMENTS SHALL BE HEARD BY A COURT OF COMPETENT JURISDICTION SITTING WITHOUT A
JURY. BORROWER HEREBY CONFIRMS TO CRESTMARK THAT THEY HAVE REVIEWED THE EFFECT
OF THIS WAIVER OF JURY TRIAL WITH COMPETENT LEGAL COUNSEL OF THEIR CHOICE, OR
HAVE BEEN AFFORDED THE OPPORTUNITY TO DO SO, PRIOR TO SIGNING THIS AGREEMENT AND
THE COLLATERAL DOCUMENTS AND EACH ACKNOWLEDGE AND AGREE THAT CRESTMARK IS
RELYING UPON THIS WAIVER IN EXTENDING THE LOAN TO BORROWER.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first appearing above.
CRESTMARK: BORROWER:
CRESTMARK BANK, BIG BUCK BREWERY & STEAKHOUSE, INC.,
A MICHIGAN BANK A MICHIGAN CORPORATION
By: /S/ XXXXXXXX XXXXXXX By: /S/ XXXXXXX X. XXXXXXXX
--------------------------- ----------------------------
XXXXXXXX XXXXXXX XXXXXXX X. XXXXXXXX
Its: Vice President Its: President
EXHIBIT A
PERMITTED ENCUMBRANCES
1. Those certain equipment filings as reflected in the U.C.C. index
searches held by Crestmark as of the date certified, without, increase,
amendment, modification, extension or refinancing.
2. A First Real Estate Mortgage held by NBD as Mortgagee on the Gaylord
store.
EXHIBIT B
LOCATION OF COLLATERAL
000 X. Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
0000 Xxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
0000 00xx Xxxxxx XX
Xxxxx Xxxxxx, XX 00000
