Business Revolving Credit Account Agreement
("Agreement")
between the party listed below as Borrower (the"Borrower"), and SIGNATURE
BANK
(the "Bank").
1.
Subject to the terms and conditions of this Agreement and in consideration
thereof, the Bank agrees to make loans C'Loan(s)") to the Borrower at any
time
and from time to time on or after the date hereof in an aggregate principal
amount up to but not exceeding the credit limit set forth below (the "Credit
Line"). The Borrower hereby agrees to repay the Loans together with interest
thereon as hereinafter set forth.
2.
The
Bank shall charge, and the Borrower agrees to pay, an annual, non-refundable
commitment fee of one half of one (0.50%) percent of the amount of the Credit
Line. Such fee shall be payable in full on the execution of this Agreement
and
on each anniversary thereof.
3.
The
Borrower may borrow, repay and reborrow, all in accordance with, and under
and
pursuant to, the terms and conditions of this Agreement.
(a)
The
Borrower may borrow under the Credit Line by writing special checks, provided
by
the Bank. Each borrowing shall constitute a representation and warranty by
the
Borrower that no Event of Default (as defined below), or any event which
with
the passage of time or the giving of notice, or both, would constitute an
Event
of Default, has occurred and is continuing. Each check paid by the Bank shall
be
deemed to be a Loan made hereunder and shall reduce the Borrower's availability
under the Credit Line. Each such borrowing and each payment of principal
and
interest on the Loans shall be recorded by the Bank on its records and such
records shall be conclusively presumed to represent the amounts outstanding
hereunder absent manifest error. The Bank is not obligated to honor a request
for a Loan on an account which is deemed delinquent or any request for a
Loan
which, if made would result in all outstanding Loans exceeding the Credit
Limit
A delinquent account is an account one day or more past due for principal,
interest or any other amount that may be owed hereunder.
(b)
Principal of the Loans shall be payable in monthly installments equal to
1/36 of
the outstanding principal balance of the Loans as of the billing date prior
to
the due date of such installment, and in full as otherwise required by the
Bank
or pursuant or the terms of this Agreement. If the amount of any Loan exceeds
the remaining unused portion of the Credit Line as specified in paragraph
1, the
Bank may, but is not obligated to, make such Loan. If the Bank should make
any
such Loan in excess of the Credit Line, such excess Loan shall not be deemed
to
constitute an increase in the Borrower's Credit Line and such excess Loan
shall
be due and payable UPON DEMAND.
(c)
The
Loans shall bear interest on the unpaid principal amount thereof at a
fluctuating rate per annum equal at all times to The Wall Street Journal
Prime
Rate plus a Spread set forth below. The Wall Street Journal Prime Rate (the
"Prime Rate") means the variable per annum rate of interest published in
Eastern
Edition of The Wall Street Journal as the prime rate. If more than one prime
rate is published in the Eastern edition of The Wall Street Journal on any
day,
then the highest rate published shall be the Prime Rate for that day. Interest
and fees shall be due and payable monthly with each principal payment and
upon
payment In full of the unpaid principal amount of the Loans. Any amount hereof
which is not paid within ten days of its due date shall be subject to a late
charge of 5% of the amount of the overdue payment. Interest shall be calculated
by applying a daily rate determined on the basis of a 360-day year to the
unpaid
principal for each day during the calendar year. Any change in the interest
rate
on the Loans resulting from a change in the Prime Rate shall become effective
as
of the opening of business on the day on which such change in the Prime Rate
shall become effective.
(d)
If
any payment of principal is due and payable on a Saturday, Sunday or legal
holiday under the laws of the State of New York, the maturity thereof shall
be
extended to the next succeeding business day and interest thereon shall be
payable at the then applicable rate during such extension.
(e)
The
Borrower hereby authorizes and directs the Bank to charge any account of
the
Borrower maintained at any office of the Bank for the amount of the principal,
interest or any fee due hereunder when the same becomes due and payable under
the terms of this Agreement.
(f)
Anything in this Agreement to the contrary notwithstanding, the Bank shall
not
charge, take or receive, and the Borrower shall not be obligated to pay,
interest in excess of the maximum rate from time to time permitted by applicable
law. Should any interest be taken or received by the Bank that is in an amount
that is excess of such maximum rate, than that excess amount shall
be
deemed to be an additional payment of principal by Borrower even if there
is a
delay by ihe Bank in crediting that payment towards principal.
4.
The
Borrower may repay the Loans without premium or penalty in whole or in part
at
any time and from time to time.
5.
The
proceeds of the Loans shall be used by the Borrower solely for business or
commercial purposes of the Borrower and specifically not for (i) the purchase
or
financing the acquisition of equipment, motor vehicles or other property
or the
making of leasehold improvements or (ii) investing in or financing the purchase
of "margin stock" as such term or terms of similar purport and effect shall
be
defined in Regulation U of the Board of Governors of the Federal Reserve
System
as now and from time to time hereafter in effect. The Borrower specifically
represents and warrants to the Bank that it is not engaged principally,
or as one of its important activities, in the business of extending credit
for
the purpose of purchasing or carrying margin stock and that no part of the
proceeds of any Loan will be used for any purpose which violates, or which
is
inconsistent with, the provisions of Regulation T, U or X of said Board of
Governors. If requested by the Bank, the Borrower will furnish to the Bank
a
statement in conformity with the requirements of Federal Reserve Form U-1
referred to in said Regulation U and to the foregoing effect.
6.
On the
date hereof and on each date that the Borrower requests a Loan, the Borrower
represents and warrants to the Bank as follows;
(a)
If
the Borrower is not an individual, the Borrower is duly organized, validly
existing and in good standing under the laws of the State of its organization
and is duly qualified and is in good standing in all other jurisdictions
where
the character or nature of its business requires such
qualification.
(b)
The
execution, delivery and performance by the Borrower of this Agreement is
within
the Borrower's power and has been duly authorized by all necessary
action.
(c)
No
authorization or approval or other action by, and no notice to or filing
with,
any governmental authority or
regulatory body is required for the execution, delivery and performance by
the
Borrower of this Agreement.
(d)
This
Agreement has been duly executed and delivered on behalf of the Borrower
and
constitutes the legal, valid and binding obligation of the
Borrower, enforceable against the Borrower in accordance with its
terms.
(e)
The
financial statements of the Borrower previously furnished to the Bank fairly
present the financial condition of the Borrower as at the date of such financial
statements and since such date there has been (i) no material increase in
the
liabilities of the Borrower and (ii) no material adverse change in the
Borrower.
(f)
There
is no pending or threatened action, proceeding or investigation affecting
the
Borrower before any court, governmental agency or arbitrator, which may either
in one case or in the aggregate, result in a material adverse
change in the Borrower.
(g)
The
Borrower has filed all federal, state and local tax returns required to be
filed
(subject to extensions granted) and has paid all taxes, assessments and
governmental charges and levies thereon to be due includine interest and
penalties.
(h)
The
Borrower is in all material respects in compliance with all federal and state
laws and regulations in all jurisdictions where the failure to comply with
such
laws or regulations could result in a material adverse change in the
Borrower.
7.
The
Borrower hereby covenants that so long as any amount remains outstanding
and
unpaid hereunder the Borrower shall:
(a)
Upon
request of the Bank, provide the Bank with its most recently prepared federal
tax return and financial statements prepared by a certified public
accountant.
(b)
Upon
request of the Bank, provide the Bank with its such other information as
the
Bank may from time to time reasonably request.
(c)
Promptly give notice in writing to the Bank of the occurrence of any Event
of
Default under this Agreement or the occurrence of any event which with the
passage of time, or the giving of notice or both will be an Event of
Default.
(d)
Permit any representatives of the Bank to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at
any reasonable time and as often as may reasonably be desired.
(e)
Not
merge or consolidate with any other person, or liquidate or dissolve itself
(or
suffer any liquidation or
dissolution) or convey, sell or lease assets other than in the ordinary course
of business, or make any material change
in
the present method of conducting business.
8.
The
occurrence of any of the following shall be an "Event of Default"
(a)
Failure by the Borrower to pay the principal of, or any installment on, the
Loans when due, or failure to pay any interest on the Loans or any fee hereunder
within ten days after any such interest or fee becomes due;
or
(b)
Any
representation or warranty made by the Borrower in this Agreement or in any
certificate, financial or other statement furnished to the Bank at any time
under or in connection with this Agreement shall prove to have been untrue
or
misleading in any material respect; or
(c)
Default by the Borrower in the observance or performance of any covenant
or
agreement contained in this Agreement, and the continuance of the same for
15
days; or
(d)
The
Borrower, or any guarantor of the Loans, shall (i) default in the payment
of
principal or interest on any obligation for borrowed money (other than the
Loans), or any obligation for the deferred purchase price of property, beyond
the period of grace, if any, provided with respect thereto, (ii) default
in the
performance or observance of any other term, condition or agreement contained
in
any such obligation described in clause (i) or in any agreement relating
thereto
if the effect thereof is to cause, or permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders) to cause, such
obligation to become due prior to its stated maturity, or (iii) default in
any
other agreement with the Bank; or
(e)
The
Borrower, or any guarantor of the Loans, (i) shall file a petition or otherwise
take any action under any existing or future law of any jurisdiction, federal
or
state, domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, (A) seeking to have any order for relief entered with
respect to it or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment liquidation, dissolution, composition
or
other relief with respect to it or its debts, or (B) seeking appointment
of a
receiver, trustee, custodian or other similar official for it or for all
or any
substantial part of its property or (ii) the Borrower or any such guarantor
shall make a general assignment for the benefit of its creditors; or (iii)
there
shall be commenced against the Borrower or any such guarantor any case,
proceeding or other action of a nature referred to in clause (i) above or
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its property, which case,
proceeding or other action (1) results m the entry of an order for reliefer
(2)
remains undismissed, undischarged or unbonded for a period of 60 days; or
(iv)
me Borrower or any such guarantor shall generally not, or shall be unable
to,
pay its debts as they become due or shall admit in writing its inability
to pay
its debts; or
(f)
Default by any guarantor upon his, her or its guarantee of the Loans pursuant
to
the terms thereof or any such guarantee shall cease to be in full force and
effect or shall be declared to be null and void, or the validity or
enforceabihty thereof shall be contested by any such guarantor or any other
party shall deny that it has any further liability to the Bank with respect
thereto; or
(g)
Final
judgment for the payment of money in excess of $ 15,000 shall be rendered
against the Borrower or any guarantor of the Loans, and the same shall remain
undischarged for a period of 30 days during which execution of such judgment
shall not be effectively stayed;
(h)
The
Bank shall determine that there has been an adverse change in the financial
condition of the Borrower; or
(i)
The
Borrower (i) borrows any money from another lender, (ii) pledges its assets
to
another lender (iii) guarantees any obligation to another lender; or (iv)
has a
lien placed against the assets of the Borrower by a creditor other than the
Bank.
If
an
Event of Default described in clause (e) above occurs, then the Bank's
obligation to make Loans shall immediately terminate, and the Loans, together
with accrued interest thereon shall be immediately due and payable, all without
notice or demand from the Bank and if auy other Event of Default occurs,
the
Bank may declare, by notice to the Borrower, the Bank's obligation to make
Loans
immediately terminated and/or the principal amount of the Loans, together
with
accrued interest thereon, to be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower, anything contained herein to the contrary
notwithstanding. At the Bank's option, the Bank may require the Borrower
to pay
all amounts owed pursuant to the schedule stated in paragraph 3(b) hereof
or any
other schedule the Bank deems appropriate.
9.
All
notices, requests and demands shall be deemed to have been given when sent
to
the last known address of the respective parties hereto
10.
No
failure to exercise and no delay in exercising, on the part of the Bank,
any
right, power or privilege hereunder shall operate as a waiver thereof; nor
shall
any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law. No
modification, or waiver or any provision of this Agreement, nor consent to
any
departure by the Borrower from the provisions hereof or thereof, shall be
effective unless the same shall be in writing from the Bank and then such
waiver
or consent shall be effective only in the specific instance and for the purpose
for which it is given. No notice to the Borrower shall entitle the Borrower
to
any other or further notice in other or similar circumstances unless expressly
provided for herein. No course of dealing between the Borrower and the Bank
shall operate as a waiver of any of the rights of the Bank under this Agreement.
The Borrower agrees to pay on demand reasonable attorneys' fees and any other
costs and expenses incurred by the Bank in connection with the enforcement
of
this Agreement.
11.
In
addition to any rights or remedies of the Bank provided by law, upon the
occurrence of any Event of Default, the Bank is hereby authorized without
notice
to the Borrower to offset and appropriate and apply all deposits (general
and
special) and other indebtedness at any time held or owing by the Bank or
for the
credit or the account of the Borrower against and on account of all obligations,
liabilities and claims maybe contingent or unmatured.
12.
For
the purposes of paragraphs 6 through 17 of this Agreement, the term "Borrower"
shall mean and include the Borrower and any subsidiaries of the Borrower.
If the
Borrower has no subsidiaries and/or if there are no guarantors, then the
provisions of this Agreement relating to subsidiaries and/or guarantors shall
be
deemed surplusage without affecting the applicability of the provisions of
this
Agreement to the Borrower alone.
13.
All
agreements, representations and warranties made herein and in any certificates
delivered pursuant hereto shall survive the execution and delivery of this
Agreement, and the making and renewal of the Loans, and shall continue in
'full
force and effect until the indebtedness of the Borrower under the Loans has
been
paid in full.
14.
This
Agreement shall be binding upon and inure to the benefit of the Borrower
and the
Bank and their respective successors and assigns, except that the Borrower
may
not transfer or assign any of its rights or interest hereunder without the
prior
written consent of the Bank
15.
This
Agreement and the rights and obligations of the parties hereunder and there
under shall be governed bys and construed and interpreted in
accordance with, the laws of the State of New York, excluding those laws
applicable to conflicts or choice of law. If any of the provisions of this
Agreement shall be or become illegal or unenforceable under any law, the
other
provisions shall remain in full force and effect.
16.
Upon
ten (10) days written notice from the Bank to the Borrower, the Bank may
amend
the terms of this agreement and such amendment shall be deemed effective
against
the Borrower if the Borrower borrows any amounts under this Agreement on
or
after the tenth (10th) day after such written notice is
given
17.
The Borrower and the Bank waive all rights to trial by jury in any
action or proceeding involving, directly or indirectly any matter (whether
sounding in tort, contract or otherwise) in any way, arising out of, relating
to, or connected with this Agreement or the transactions contemplated
hereby.
BORROWER
| Bedminster National Corp. | ||
| |
|
|
| Credit Line: $50,000.00 | By: | /s/ Xxxx Xxxxxxxx |
|
Name: Xxxx Xxxxxxxx |
||
| Title: Charman & CEO | ||
|
Address:
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxx.
XX
00000
|
