BUSINESS LOAN AGREEMENT
EXHIBIT
10.3
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Borrowers:
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Art’s-Way
Manufacturing Co., Inc.
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Lender:
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West
Bank
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0000
Xxx. 0 X
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0000
00xx
Xxxxxx
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Xxxxxxxxx,
XX 00000
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Xxxx
Xxx Xxxxxx, XX 00000
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Guarantor:
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Art’s-Way
Vessels, Inc.
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Art’s-Way
Scientific, Inc.
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0000
Xxxxxxxxxx Xxxx
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000
Xxx Xxxxxx
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Xxxxxxx,
XX 00000
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Xxxxxx,
XX 00000
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THIS BUSINESS LOAN
AGREEMENT dated June 8, 2009, is made and executed between Art’s-Way
Manufacturing Co., Inc. (“Borrower”) and West Bank (“Lender”) on the following
terms and conditions.
Borrower
has made four prior commercial loans from Lender and has applied to Lender for a
renewal and increased $6,000,000 commercial line of credit (collectively “Loans”
and each individually a “Loan”). Borrower understands and agrees
that: (A) In granting, renewing, or extending the Loans, Lender has
relied upon Borrower’s representations, warranties, and agreements as set forth
in the loan documents and/or this Agreement; (B) the granting, renewing, or
extending of any Loan by Lender at all times shall be subject to Lender’s sole
judgment and discretion; and (C) all of the Loans shall hereby become and remain
subject to the terms and conditions of this Agreement.
TERM. This
Agreement shall be effective as of the date stated above and shall continue in
full force and effect until such time as all of Borrower’s obligations to Lender
have been paid in full, including principal, interest, costs, expenses,
attorneys’ fees, and other fees and charges, or until such time as the parties
may agree in writing to terminate this Agreement.
CONDITIONS PRECEDENT TO EACH LINE OF
CREDIT ADVANCE. Lender’s obligation to make the initial
Advance and each subsequent Advance under the line of credit Loan shall be
subject to the fulfillment to Lender’s satisfaction of all of the conditions set
forth in this Agreement and in the Related Documents. Specifically,
but without limitation:
Borrower’s
Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note, and the
Related Documents. In addition, Borrower shall have provided such
other resolutions, authorizations, documents, and instruments as Lender or
Lender’s counsel may require.
Loan
Documents. Borrower shall provide to Lender the following
documents for the line of credit Loan: (1) the Note; (2) Security
Agreements granting to Lender security interests in the Collateral; (3)
financing statements and all other documents perfecting Lender’s Security
Interests; (4) evidence of insurance as required below; (5) guaranties by
Art’s-Way Vessels, Inc. and Art’s-Way Scientific, Inc.; (6) together with all
such Related Documents as Lender may require for the Loan; all in form and
substance satisfactory to Lender and Lender’s counsel.
Business
Loan Agreement (Continued)
Loan No.
___________________
No Event of
Default. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement, any
of the Loans, or any Related Document.
Payment of Fees and
Expenses. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in this
Agreement or any Related Document.
Representations and
Warranties. The representations and warranties set forth in
this Agreement, in the Related Documents, and in any document or certificate
delivered to Lender concerning the Loans are true and correct.
REPRESENTATIONS AND
WARRANTIES. Borrower represents and warrants to Lender that as
of the date of this Agreement, the date of each disbursement of loan proceeds,
and at all times any indebtedness exists:
Assumed Business
Names. Borrower does not operate under any assumed business
names.
Authorization. Borrower’s
execution, delivery, and performance of this Agreement and all the Related
Documents have been duly authorized by all necessary action by Borrower and do
not conflict with, result in a violation of, or constitute a default under (1)
any provision of (a) Borrower’s articles of organization or membership
agreements, or (b) any agreement or other instrument binding upon Borrower or
(2) any law, governmental regulation, court decree, or order applicable to
Borrower or to Borrower’s properties.
Binding
Effect. This Agreement, the Note, all Security Agreements, and
all Related Documents are binding upon the signers thereof, as well as upon
their successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
Financial
Information. Each of Borrower’s financial statements supplied
to Lender truly and completely disclosed Borrower’s financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower’s financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material
contingent obligations except as disclosed in such financial
statements.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Hazardous
Substances. Except as disclosed to and acknowledged by Lender
in writing, Borrower represents and warrants that: (1) During the
period of Borrower’s ownership of the Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from any of
the Collateral; (2) Borrower has no knowledge of, or reason to believe that
there has been (a) any breach or violation of any Environmental Laws; (b) any
use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any
actual or threatened litigation or claims of any kind by any person relating to
such matters; and (3) Neither Borrower nor any tenant, contractor, agent or
other authorized user of any of the Collateral shall use, generate, manufacture,
store, treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral unless any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation, all Environmental
Laws. Borrower authorizes Lender and its agents to enter upon the
Collateral to make such inspections and tests as Lender may deem appropriate to
determine compliance with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower’s expense and for
Lender’s purposes only and shall not be construed to create any responsibility
or liability on the part of Lender to Borrower or to any other
person. The representations and warranties contained herein are based
on Borrower’s due diligence in investigating the Collateral for hazardous waste
and Hazardous Substances. Borrower hereby (1) releases and waives any
future claims against Lender for indemnity or contribution in the event Borrower
becomes liable for cleanup or other costs under any such laws, and (2) agrees to
indemnify, defend, and hold harmless Lender against any and all claims, losses,
liabilities, damages, penalties, and expenses which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release of a hazardous waste or substance on the
Collateral. The provisions of this section of the Agreement,
including the obligation to indemnify and defend, shall survive the payment of
the Indebtedness and the termination, expiration or satisfaction of this
Agreement and shall not be affected by Lender’s acquisition of any interest in
any of the Collateral, whether by foreclosure or otherwise.
Legal Effect. This
Agreement and every instrument or agreement Borrower is required to give under
this Agreement when delivered will constitute legal, valid, and binding
obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
Lien
Priority. Unless otherwise previously disclosed to Lender in
writing, Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting any
of the Collateral directly or indirectly securing repayment of the Loans that
would be prior or that may in any way be superior to Lender’s Security Interests
and rights in and to the Collateral.
Litigation and
Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Borrower
is pending or threatened, and no other event has occurred which may materially
adversely affect Borrower’s financial condition or properties, other than
litigation, claims, or other events, if any, that have been disclosed to and
acknowledged by Lender in writing.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Organization. Borrower
is a corporation which is, and at all times shall be, duly organized, validly
existing, and in good standing under and by virtue of the laws of the State of
Delaware. Borrower is duly authorized to transact business in all
other states in which Borrower is doing business, having obtained all necessary
filings, governmental licenses, and approvals for each state in which Borrower
is doing business. Specifically, Borrower is, and at all times shall
be, duly qualified as a foreign corporation in all states in which the failure
to so qualify would have a material adverse effect on its business or financial
condition. Borrower has the full power and authority to own its
properties and to transact the business in which it is presently engaged or
presently proposes to engage. Borrower maintains its principal office
and place of business at 0000 Xxx 0 Xxxx, Xxxxxxxxx, Xxxx. Unless
Borrower has designated otherwise in writing, the principal office is the office
at which Borrower keeps its books and records including its records concerning
the Collateral. Borrower will notify Lender in writing prior to any
change in its principal place of business, the location of Borrower’s state of
organization, or any change in Borrower’s name. Borrower shall do all
things necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to Borrower and Borrower’s business activities.
Properties. Except
as contemplated by this Agreement or as previously disclosed in Borrower’s
financial statements or in writing to Lender and as accepted by Lender, and
except for property tax liens for taxes not presently due and payable, Borrower
owns and has good title to all of Borrower’s properties free and clear of all
Security Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower’s properties
are titled in Borrower’s legal name, and Borrower has not used or filed a
financing statement under any other name.
Securities Laws. To
the best of Borrower’s knowledge, Borrower is in full compliance with all
securities laws applicable to Borrower.
Subsidiaries. Borrower
has two wholly-owned subsidiaries: Art’s-Way Vessels, Inc. and
Art’s-Way Scientific, Inc.
Taxes. To the best
of Borrower’s knowledge, all of Borrower’s tax returns and reports that are or
were required to be filed, have been filed, and all taxes, assessments and other
governmental charges have been paid in full, except those presently being or to
be contested by Borrower in good faith in the ordinary course of business and
for which adequate reserves have been provided.
AFFIRMATIVE
COVENANTS. Borrower covenants and agrees with Lender that, so
long as this Agreement remains in effect, Borrower will:
Accounts. Maintain
its primary deposit accounts and credit card accounts at
Lender.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Additional
Assurances. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements or documents
as Lender or Lender’s counsel may reasonably require to create, evidence, and
perfect Lender’s security and collateral interests in all assets of Borrower and
its subsidiaries.
Additional
Information. Furnish such additional information and
statements, as Lender may request from time to time.
Collateral. Grant
and maintain first priority security and mortgage interests to Lender in all
assets of Borrower and its subsidiaries subject only to Permitted Liens, if
any.
Compliance
Certificate. Unless waived in writing by Lender, provide
Lender at least annually, with a certificate executed by Borrower’s chief
financial officer, or other officer or person acceptable to Lender, certifying
that the representations and warranties set forth in this Agreement are true and
correct as of the date of the certificate and further certifying that, as of the
date of the certificate, no Event of Default exists under this
Agreement.
Compliance with Governmental
Requirements. Comply with all laws, ordinances, and
regulations, now or hereafter in effect, of all governmental authorities
applicable to the conduct of Borrower’s properties, businesses, and operations,
and to the use or occupancy of the Collateral, including without limitation, the
Americans With Disabilities Act. Borrower may contest in good faith
any such law, ordinance, or regulation and withhold compliance during any
proceedings, including appropriate appeals, so long as Borrower has notified
Lender in writing prior to doing so and so long as, in Lender’s sole opinion,
Lender’s interests in the Collateral are not jeopardized. Lender may
require Borrower to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender’s interest.
Cross-collateralization. Make,
execute, and deliver to Lender such promissory notes, mortgages, deeds of trust,
security agreements, assignments, financing statements, instruments, documents
and other agreements or documents as Lender or Lender’s counsel may reasonably
require to completely cross-collateralize the Loans.
Environmental Compliance and
Reports. Borrower shall comply in all respects with any and
all Environmental Laws; not cause or permit to exist, as a result of an
intentional or unintentional action or omission on Borrower’s part or on the
part of any third party, on property owned and/or occupied by Borrower, any
environmental activity where damage may result to the environment, unless such
environmental activity is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within thirty
(30) days after receipt thereof a copy of any notice, summons, lien, citation,
directive, letter or other communication from any governmental agency or
instrumentality concerning any intentional or unintentional action or omission
on Borrower’s part in connection with any environmental activity whether or not
there is damage to the environment and/or other natural
resources.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Environmental
Studies. Promptly conduct and complete, at Borrower’s expense,
all such investigations, studies, samplings and testings as may be requested by
Lender relative to any substance, or any waste or by-product of any substance
defined as toxic or a hazardous substance under applicable federal, state, or
local law, rule, regulation, order or directive, at or affecting any property or
any facility owned, leased, or used by Borrower.
Financial
Covenants. Maintain a minimum debt-service coverage ratio of
1.5 calculated as of Borrower’s fiscal year end. The ratio shall be
calculated as (net income plus interest expenses plus non-cash charges) divided
by (total principal and interest payments due during succeeding fiscal year
except loan maturities). Maintain a maximum debt to tangible net
worth ratio of 1.5 and a minimum tangible net worth of $11,500,000, both
calculated as of Borrower’s fiscal year end.
Financial
Records. Maintain its books and records in accordance with
GAAP, applied on a consistent basis, and permit Lender to examine and audit
Borrower’s books and records at all reasonable times.
Financial
Statements. Furnish Lender with the following:
Annual
Statements. As soon as available, but in no event later than
one-hundred-twenty (120) days after the end of each fiscal year, Borrower’s
balance sheet and income statement for the year ended, audited by a certified
public accountant satisfactory to Lender.
Interim
Statements. As soon as available, but in no event later than
thirty (30) days after the end of each month, Borrower’s and each subsidiary’s
balance sheet, income statement, and accounts receivable aging schedule,
prepared by Borrower.
All
financial reports required to be provided under this Agreement shall be prepared
in accordance with GAAP, applied on a consistent basis, and certified by
Borrower as being true and correct.
Guaranties. Prior
to disbursement of any Loan proceeds, furnish executed guaranties of the Loans
in favor of Lender, executed by the guarantors named below, on Lender’s forms,
and in the amounts and under the conditions set forth in those
guaranties.
Inspection. Permit
employees or agents of Lender at any reasonable time to inspect any and all
Collateral for the Loans and Borrower’s other properties and to examine or audit
Borrower’s books, accounts, and records and to make copies and memoranda of
Borrower’s books, accounts, and records. If Borrower now or at any
time hereafter maintains any records (including without limitation computer
generated records and computer software programs for the generation of such
records) in the possession of a third party, Borrower, upon request of Lender,
shall notify such party to permit Lender free access to such records at all
reasonable times and to provide Lender with copies of any records it may
request, all at Borrower’s expense.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Insurance. Maintain
fire and other risk insurance, public liability insurance, and such other
insurance as Lender may require with respect to Borrower’s properties and
operations, in form, amounts, coverages and with insurance companies acceptable
to Lender. Borrower, upon request of Lender, will deliver to Lender
from time to time the policies or certificates of insurance in form satisfactory
to Lender, including stipulations that coverages will not be cancelled or
diminished without at least thirty (30) days prior written notice to
Lender. Each insurance policy also shall include an endorsement
providing that coverage in favor of Lender will not impaired in any way by any
act, omission or default of Borrower or any other person. In
connection with all policies covering assets in which Lender holds or is offered
a security interest for the Loans, Borrower will provide Lender with such
lender’s loss payable or other endorsements as Lender may require.
Insurance
Reports. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (1) the name of
the Insurer; (2) the risks insured; (3) the amount of the policy; (4) the
properties insured; (5) the then current property values on the basis of which
insurance has been obtained, and the manner of determining those values; and (6)
the expiration date of the policy. In addition, upon written request
of Lender (however not more often than annually), Borrower will have an
independent appraiser satisfactory to Lender determine, as applicable, the
actual cash value or replacement cost of any Collateral. The cost of
such appraisal shall be paid by Borrower.
Loan Proceeds. Use
all proceeds of the Loans solely for the business operations of Borrower and its
subsidiaries, unless otherwise specifically agreed to in advance by Lender in
writing. The line of credit Loan proceeds shall be used for working
capital, letter of credit, and corporate credit card purposes of Borrower and
its subsidiaries.
Names of
Guarantors. Art’s-Way Vessels, Inc. and Art’s-Way Scientific,
Inc.
Notices of Claims and
Litigation. Promptly inform Lender in writing of (1) all
material adverse changes in the financial condition of Borrower or either
Guarantor, and (2) all existing and all threatened litigation, claims,
investigations, administrative proceedings or similar actions affecting Borrower
or any Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
Operations. Maintain
executive and management personnel with substantially the same qualifications
and experience as the present executive and management personnel; provide
written notice to Lender of any change in executive and management personnel;
conduct its business affairs in a reasonable and prudent manner.
Other
Agreements. Comply with all terms and conditions of all other
material agreements, whether now or hereafter existing, between Borrower and any
other entity and notify Lender immediately in writing of any default in
connection with any other such agreements.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Performance. Perform
and comply, in a timely manner, with all terms, conditions, and provisions set
forth in this Agreement, in the Related Documents, and in all other instruments
and agreements between Borrower and Lender. Borrower shall notify
Lender immediately in writing of any default in connection with any such
agreement.
Taxes, Charges and
Liens. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes, governmental
charges, levies and liens, of every kind and nature, imposed upon Borrower or
its properties, income, or profits, prior to the date on which penalties would
attach, and all lawful claims that, if unpaid, might become a lien or charge
upon any of Borrower’s properties, income, or profits.
LENDER’S
EXPENDITURES. If any action or proceeding is commenced that
would materially affect Lender’s interest in the Collateral or if Borrower fails
to comply with any provision of this Agreement or any Related Documents,
including but not limited to Borrower’s failure to discharge or pay when due any
amounts Borrower is required to discharge or pay under this Agreement or any
Related Documents, Lender on Borrower’s behalf may (but shall not be obligated
to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All
such expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Borrower. All such expenses will
become a part of the Indebtedness and, at Lender’s option, will (A) be payable
on demand; (B) be added to the balance of the Note and be apportioned among and
be payable with any installment payments to become due during either (1) the
term of any applicable insurance policy; or (2) the remaining term of the Note;
or (C) be treated as a balloon payment which will be due and payable at the
Note’s maturity.
NEGATIVE
COVENANTS. Borrower covenants and agrees with Lender that
while this Agreement is in effect, Borrower and Guarantors shall not, without
the prior written consent of Lender:
Borrowing
Base. Allow the amount advanced pursuant to the line of credit
Loan to exceed the sum of (60% of Borrower’s accounts receivable less than 90
days old) plus (60% of Borrower’s finished goods inventory) plus (50% of
Borrower’s raw material inventory and work-in-process) calculated at each month
end.
Capital
Expenditures. Make or contract to make capital expenditures,
including leasehold improvements, in any fiscal year in excess of $500,000 or
incur liability for rentals of property (including both real and personal
property) in an amount which, together with capital expenditures, shall in any
fiscal year exceed such sum. This limitation shall not include
expenditures for the building addition completed in 2009 and the planned roof
replacement expected to be completed in 2009 in the amounts disclosed to Lender
before the effective date of this Agreement.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Continuity of
Operations. (1) Engage in any business activities
substantially different than those in which Borrower and its subsidiaries are
presently engaged, (2) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) make any distribution
with respect to any capital account except from a subsidiary to Borrower,
whether by reduction of capital or otherwise.
Indebtedness and
Liens. (1) Except for trade debt incurred in the normal course
of business and indebtedness to Lender contemplated by this Agreement, create,
incur or assume indebtedness for borrowed money, including capital leases, (2)
sell, transfer, mortgage, assign, pledge, lease, grant a security interest in,
or encumber any of Borrower’s assets (except as allowed as Permitted Liens), or
(3) sell with recourse any of Borrower’s accounts, except to
Lender.
Loans, Acquisitions and
Guaranties. (1) Loan, invest in, or advance money or assets to
any other person, enterprise, or entity, (2) purchase, create, or acquire any
interest in any other enterprise or entity, or (3) incur any obligation as
surety or guarantor.
CESSATION OF
ADVANCES. If Lender has made any commitment to make any Loan
or Loan Advance to Borrower, whether under this Agreement or under any other
agreement, Lender shall have no obligation to make Loan Advances or to disburse
Loan proceeds if: (A) Borrower or any Guarantor is in default under
the terms of this Agreement or any of the Related Documents or any other
agreement that Borrower or any Guarantor has with Lender; (B) Borrower or any
Guarantor becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower’s financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor’s guaranty of the Loan or any other loan with Lender; or (E) Lender in
good xxxxx xxxxx itself insecure, even though no Event of Default shall have
occurred.
RIGHT OF SETOFF. To
the extent permitted by applicable law, Lender reserves a right of setoff in all
Borrower’s and Guarantors’ accounts with Lender (whether checking, savings, or
some other account). This includes all accounts Borrower or either of
the Guarantors holds jointly with someone else and all accounts Borrower may
open in the future. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender’s option, to
administratively freeze all such accounts to allow Lender to protect Lender’s
charge and setoff rights provided in this paragraph.
DEFAULT. Each of
the following shall constitute an Event of Default under this
Agreement:
Adverse Change. A
material adverse change occurs in Borrower’s or either Guarantor’s financial
condition, or Lender believes the prospect of payment or performance of any of
the Loans is impaired.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Creditor or Forfeiture
Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency against
any collateral securing the Loan. This includes a garnishment of any
of Borrower’s accounts, including deposit accounts, with
Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
Dissolution or
Insolvency. The dissolution of Borrower or either Guarantor
(regardless of whether election to continue is made) or any other termination of
Borrower’s or either Guarantor’s existence as a going business, the insolvency
of Borrower or either Guarantor, the appointment of a receiver for any part of
Borrower’s or either Guarantor’s property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any proceeding
under any bankruptcy or insolvency laws by or against Borrower or either
Guarantor.
Default in Favor of Third
Parties. Borrower or any Guarantor defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of Borrower’s or any Guarantor’s property or Borrower’s or any
Guarantor’s ability to repay the Loans or perform their respective obligations
under this Agreement or any of the Related Documents.
Defective
Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or lien)
at any time and for any reason.
Events Affecting
Guarantors. Any of the preceding events occurs with respect to
any Guarantor of any of the Indebtedness or any Guarantor revokes or disputes
the validity of, or liability under, any Guaranty of the
Indebtedness.
False
Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or the Guarantors or on Borrower’s behalf under
this Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Insecurity. Lender
in good xxxxx xxxxx itself insecure and allows Borrower a Right to Cure as
described below.
Other
Defaults. Borrower or either Guarantor fails to comply with or
to perform any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other agreement with
Lender.
Payment
Default. Borrower or Guarantors fail to make any payment when
due under the Loans.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Right to Cure. If
any default, other than a payment default, is curable and if Borrower or either
Guarantor, as the case may be, has not been given a notice of similar default
within the preceding twelve (12) months, it may be cured if Borrower or a
Guarantor, as the case may be, after receiving written notice from Lender
demanding cure of such default: (1) cure the default within twenty
(20) days; or (2) if the cure requires more than twenty (20) days, immediately
initiates steps which Lender deems in Lender’s sole discretion to be sufficient
to cure the default and thereafter continue and complete all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably
practical.
EFFECT OF AN EVENT OF
DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender’s option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower or Guarantors, except that in the case of an Event of Default
of the type described in the “Insolvency” subsection above, such acceleration
shall be automatic and not optional. In addition, Lender shall have
all the rights and remedies provided in the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by
applicable law, all of Lender’s rights and remedies shall be cumulative and may
be exercised singularly or concurrently. Election by Lender to pursue
any remedy shall not exclude pursuit of any other remedy, and an election to
make expenditures or to take action to perform an obligation of Borrower or of
any Guarantor shall not affect Lender’s right to declare a default and to
exercise its rights and remedies.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part
of this Agreement.
Amendments. This
Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement or any
Related Document shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
Attorneys’ Fees;
Expenses. Borrower agrees to pay upon demand all of Lender’s
costs and expenses, including Lender’s attorneys’ fees and Lender’s legal
expenses, incurred in connection with the enforcement of this
Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender’s attorneys’ fees and
legal expenses, whether or not there is a lawsuit, including attorneys’ fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated post judgment
collection services.
Caption
Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Choice of Venue. If
there is a lawsuit related to this Agreement or the Loans, Borrower agrees to
submit to the personal jurisdiction of the courts of Polk County, State of
Iowa.
Consent to Loan
Participation. Borrower agrees and consents to Lender’s sale
or transfer, whether now or later, of one or more participation interests in the
Loans to one or more purchasers, whether related or unrelated to
Lender. Lender may provide, without any limitation whatsoever, to any
one or more purchasers, or potential purchasers, any information or knowledge
Lender may have about Borrower or Guarantors or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower or
Guarantors may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation interests, as
well as all notices of any repurchase of such participation
interests. Borrower also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such
interests in the Loan and will have all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all rights of offset or
counterclaim that it may have now or later against Lender or against any
purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower’s obligation under the Loan
irrespective of the failure or insolvency of any holder of any interest in the
Loan. Borrower further agrees that the purchaser of any such
participation interests may enforce its interests irrespective of any personal
claims or defenses that Borrower may have against Lender.
Governing
Law. This Agreement will be governed by federal law applicable to
Lender and, to the extent not preempted by federal law, the laws of the State of
Iowa without regard to its conflicts of law provisions. This
Agreement has been accepted by Lender in Polk County, Iowa.
No Waiver by
Lender. Lender shall not be deemed to have waived any rights
under this Agreement unless such wavier is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any
right shall operate as a waiver of such right or any other right. A
waiver by Lender of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender’s right otherwise to demand strict compliance with
that provision or any other provision of this Agreement. No prior
waiver by Lender, nor any course of dealing between Lender and Borrower, or
between Lender and any Grantor, shall constitute a waiver of any of Lender’s
rights or of any of Borrower’s or any grantor’s obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
Notices. Any notice
required to be given under this Agreement shall be given in writing, and shall
be effective when actually delivered, when actually received by telefacsimile or
email (unless otherwise required by law), when deposited with a nationally
recognized overnight courier, or, if mailed, when deposited in the United States
mail, as first class, certified or registered mail postage prepaid, directed to
the addresses shown near the beginning of this Agreement. Any party
may change its address for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice is to
change the party’s address. For notice purposes, Borrower agrees to
keep Lender informed at all times of Borrower’s current
address. Unless otherwise provided or required by law, if there is
more than one Borrower, any notice given by Lender to any Borrower is deemed to
be notice given to all Borrowers.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Severability. If a
court of competent jurisdiction finds any provision of this Agreement to be
illegal, invalid, or unenforceable as to any circumstance, that finding shall
not make the offending provision illegal, invalid, or unenforceable as to any
other circumstance. If feasible, the offending provision shall be
considered modified so that it becomes legal, valid and
enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
Successors and
Assigns. All covenants and agreements by or on behalf of
Borrower contained in this Agreement or any Related Documents shall bind
Borrower’s successors and assigns and shall inure to the benefit of Lender and
its successors and assigns. Borrower shall not, however, have the
right to assign Borrower’s rights under this Agreement or any interest therein,
without the prior written consent of Lender.
Survival of Representations and
Warranties. Borrower understands and agrees that in making the
Loan, Lender is relying on all representations, warranties, and covenants made
by Borrower in this Agreement or in any certificate or other instrument
delivered by Borrower to Lender under this Agreement or the Related
Documents. Borrower further agrees that regardless of any
investigation made by Lender, all such representations, warranties and covenants
will survive the making of the Loan and delivery to Lender of the Related
Documents, shall be continuing in nature, and shall remain in full force and
effect until such time as Borrower’s Indebtedness shall be paid in full, or
until this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
Time is of the
Essence. Time is of the essence in the performance of this
Agreement.
DEFINITIONS. The
following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the singular shall
include the plural, and the plural shall include the singular, as the context
may require. Words and terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the Uniform Commercial
Code. Accounting words and terms not otherwise defined in this
Agreement shall have the meanings assigned to them in accordance with generally
accepted accounting principles as in effect on the date of this
Agreement:
Advance. The word
“Advance” means a disbursement of Loan funds made, or to be made, to Borrower or
on Borrower’s behalf on a line of credit or multiple advance basis under the
terms and conditions of this Agreement or any Related Document.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Agreement. The word
“Agreement” means this Business Loan Agreement, as this Business Loan Agreement
may be amended or modified from time to time, together with all exhibits and
schedules attached to this Business Loan Agreement from time to
time.
Borrower. The word
“Borrower” means Art’s-Way Manufacturing Co., Inc. and includes all co-signers
and co-makers signing the Note and all their successors and
assigns. In addition, to the extent the context of any provisions of
this Agreement makes it appropriate, including without limitation any
representation, warranty, or covenant, the word “Borrower” as used in this
Agreement shall include all of Borrower’s subsidiaries and
affiliates. Notwithstanding the foregoing however, under no
circumstances shall this Agreement be construed to require Lender to make any
Loan or other financial accommodation to any of Borrower’s subsidiaries or
affiliates.
Collateral. The
word “Collateral” means all property and assets granted as collateral security
for a Loan, whether real or personal property, whether granted directly or
indirectly, whether granted now or in the future, and whether granted in the
form of a security interest, mortgage, collateral mortgage, deed of trust,
assignment, pledge, crop pledge, chattel mortgage, collateral chattel mortgage,
chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt,
lien, charge, lien or title retention contract, lease or consignment intended as
a security device, or any other security or lien interest whatsoever, whether
created by law, contract, or otherwise.
Environmental
Laws. The words “Environmental Laws” mean any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments
and Reauthorization Act of 1986, Pub. L. No. 99-499 (“XXXX”), the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other
applicable state or federal laws, rules, or regulations adopted pursuant
thereto.
Event of
Default. The words “Event of Default” mean any of the events
of default set forth in this Agreement in the default section of this
Agreement.
GAAP. The word
“GAAP” means generally accepted accounting principles.
Guarantor. The word
“Guarantor” means any guarantor, surety, or accommodation party of any or all of
the Loans, including specifically Art’s-Way Vessels, Inc. and Art’s-Way
Scientific, Inc.
Guaranty. The word
“Guaranty” means the guaranty from Guarantor to Lender, including without
limitation a guaranty of all or part of the Note.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Hazardous
Substances. The words “Hazardous Substances” mean materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard to
human health or the environment when improperly used, treated, stored, disposed
of, generated, manufactured, transported or otherwise handled. The
words “Hazardous Substances” are used in their very broadest sense and include
without limitation any and all hazardous or toxic substances, materials or waste
as defined by or listed under the Environmental Laws. The term
“Hazardous Substances” also includes, without limitation, petroleum and
petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The
word “Indebtedness” means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Borrower and Guarantors are
responsible under this Agreement or under any of the Related
Documents.
Lender. The word
“Lender” means West Bank, its successors and assigns.
Loan. The word
“Loan” means any and all loans and financial accommodations from Lender to
Borrower or Guarantors whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations described
herein or described on any exhibit or schedule attached to this Agreement from
time to time.
Note. The word
“Note” means the promissory note executed by Borrower in the principal amount of
$6,000,000 dated on or about the date of this Agreement, together with all
renewals of, extension of, modifications of, refinancings of, consolidations of,
and substitutions for the note or credit agreement.
Permitted
Liens. The words “Permitted Liens” mean (1) liens and security
interests securing Indebtedness owed by Borrower to Lender; (2) liens for taxes,
assessments, or similar charges either not yet due or being contested in good
faith; (3) liens of materialmen, mechanics, warehousemen, or carriers, or other
like liens arising in the ordinary course of business and securing obligations
which are not yet delinquent; (4) purchase money liens or purchase money
security interests upon or in any property acquired or held by Borrower in the
ordinary course of business to secure Indebtedness outstanding on the date of
this Agreement or permitted to be incurred under the paragraph of this Agreement
titled “Indebtedness and Liens”; (5) liens and security interests which, as of
the date of this Agreement, have been disclosed to and approved by the Lender in
writing; and (6) those liens and security interests which in the aggregate
constitute an immaterial and insignificant monetary amount with respect to the
net value of Borrower’s assets.
Related
Documents. The words “Related Documents” mean all promissory
notes, credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Loan, the Loans, or this
Agreement, all in form satisfactory to Lender and Lender’s Counsel.
Security
Agreement. The words “Security Agreement” mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
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Business
Loan Agreement (Continued)
Loan No.
___________________
Security
Interest. The words “Security Interest” mean, without
limitation, any and all types of collateral security, present and future,
whether in the form of a lien, charge, encumbrance, mortgage, deed of trust,
security deed, assignment, pledge, crop pledge, chattel mortgage, collateral
chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional
sale, trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest whatsoever
whether created by law, contract, or otherwise.
BORROWER
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND
BORROWER AGREES TO ITS TERMS.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS BUSINESS LOAN AGREEMENT AND ALL
OTHER DOCUMENTS RELATING TO THIS DEBT.
|
BORROWER:
|
LENDER:
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|||
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ART’S-WAY
MANUFACTURING CO., INC.
|
WEST
BANK
|
|||
|
By:
|
/s/ J. Xxxx XxXxxxxxx, Xx.
|
By:
|
/s/ Xxxxx X. Xxxxx
|
|
|
J.
Xxxx XxXxxxxxx, Xx.
|
Xxxxx
X. Xxxxx
|
|||
|
Chairman
|
Senior
Vice President
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
|
Xxxxxx
Xxxxxxx
|
||||
|
President
|
||||
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