EX 10.4.19
The Xxxxxx
State Bank
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000 Xxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
"LENDER"
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BORROWER
XXXXXXX OLDSMOBILE-GMC, INC.
COMMERCIAL
ADDRESS LOAN
00000 X-00 XXXXXXXXX
XXXXXX, XX 00000
TELEPHONE NO. IDENTIFICATION NO.
778-8262 00-0000000
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MORTGAGOR OWNER OF COLLATERAL
ADDRESS ADDRESS
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
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AGREEMENTS
1. FINANCING. Subject to the following conditions, Lender shall provide
Borrower with the advances, loans and/or other financial accommodations
identified in Schedule A, as amended from time to time, which is incorporated
into this Agreement by this reference, as well as any other advances, loans
and/or financial accommodations that Borrower and Lender may agree to in
writing.
Such advances, loans and/or other financial accommodations shall be evidenced
and, if applicable, guarantied by guarantors pursuant to and/or secured by
collateral set forth in loan documents that are acceptable to Lender
including, but not limited to, the documents identified in Schedule B, as
amended from time to time (collectively "Loan Documents"), which is
incorporated into this Agreement by this reference.
Borrower shall pay to Lender the principal, interest, fees, expenses and any
other amounts pertaining to the advances, loans and/or other financial
accommodations as described in this Agreement and the Loan Documents.
2. GUARANTIES. [X] If checked, Borrower shall cause the Guarantor(s)
listed on the Guaranty Schedule attached to this Agreement (collectively
"Guarantor") to deliver to Lender executed Guaranties on Lender's guaranty
forms, and in such amounts as Lender shall require, that jointly and
severally, absolutely and unconditionally, guaranty the payment and
performance of all of the Borrower's present and future, joint and/or
several, direct and indirect, absolute and contingent, express and implied,
indebtedness, liabilities, obligations, and covenants to Lender as described
in this Agreement and the Loan Documents. In addition, the Guarantor must
agree to provide Lender with appropriate financial information including tax
returns, a balance sheet and income information satisfactory to the Lender
from time to time as the Lender requires but not less than annually.
3. COLLATERAL. Borrower shall grant and/or cause:
Owner of Collateral identified above whose tax identification and/or social
security number(s) is ______________________ and who is a resident of the
State(s) of _________________________________ or a ________________________
duly organized, validly existing, and in good standing under the laws of the
State(s) of ________________________________________ ; and/or Mortgagor
identified above whose tax identification and/or social security number(s)
is _________________________________ and who is a resident of the State(s) of
____________________________________ or a ___________________________________ ,
duly organized, validly existing, and in good standing under the laws of
the State(s) of _________________________________; (COLLECTIVELY OWNER OF
COLLATERAL AND MORTGAGOR IDENTIFIED ABOVE WILL BE REFERRED TO AS "DEBTOR") to
grant Lender a lien, security interest or other encumbrance upon the
collateral (collectively "Collateral") belonging to the Borrower and/or any
Debtors, as described in the Loan Documents, to secure the payment and
performance of all of the Borrower's present and future, joint and/or
several, direct and indirect, absolute and contingent, express and implied,
indebtedness, liabilities, obligations and covenants to Lender as described
in this Agreement and the Loan Documents.
4. SUPERIOR AND CONTINUING LIENS AND GUARANTIES.
a. Superiority of Lender's Lien. The liens, security interests and
other encumbrances granted to Lender shall be superior to any other
liens, security interests, encumbrances and claims with respect to
the Collateral (unless specifically noted otherwise in the Loan
Documents).
b. Guaranties, Liens and Other Encumbrances. The guaranties and liens,
security interests, and other encumbrances described in the Loan
Documents shall continue and not be released until all of the
indebtedness, liabilities, obligations and covenants guarantied or
secured thereby shall have been paid and/or performed in
full and Lender shall not be obligated to provide any additional
advances, loans or other financial accommodations to or for the
benefit of Borrower (or, if applicable, any of the Debtors) of any
kind.
5. CONDITIONS PRECEDENT. Lender's obligation to provide Borrower with any
advances, loans and/or other financial accommodations shall be subject to the
following conditions precedent. All of the information, Uniform Commercial
Code financing statement lien searches and any other lien searches, insurance
policies, environmental risk assessments, opinion letter(s), appraisals,
credit information, and other materials and documents provided or to be
provided to Lender and all of the actions taken or to be taken for the
attachment, creation, perfection, recording, maintenance, subordination,
release, termination, and giving of notice with respect to the liens,
security interests, and other encumbrances in the Collateral shall be
provided or taken at Borrower's expense:
a. Evidence of Good Standing. Lender shall be provided with such
written evidence of the Borrower and any Guarantors' and Debtors'
legal names and good standing, authorization to conduct business, and
authorization to execute and perform their respective obligations
under this Agreement and the Loan Documents as required by Lender;
b. Execution and Delivery. Borrower shall execute and deliver this
Agreement and the necessary Loan Documents and cause any Guarantors
and Debtors to execute and deliver to Lender the necessary Loan
Documents, and all other documents relating thereto, each in form and
substance acceptable to Lender;
c. Authorization. Lender shall be provided with such written evidence
as required by Lender that the representatives of the Borrower and
any Guarantors and Debtors are authorized to execute this Agreement
and the Loan Documents on behalf of those parties and bind the
Borrower and any Guarantors and Debtors to the terms and conditions
set forth therein;
d. Liens. Lender's liens, security interests, and other encumbrances
upon the Collateral shall be attached, created, filed, perfected and
recorded in accordance with applicable law and notice of such liens,
security interests and encumbrances shall be provided to such parties
as required by Lender;
x. Xxxx Searches. Lender shall be provided with UCC searches, title
insurance policies, or other written evidence as required by Lender
with respect to the validity, enforceability and priority of its
liens, security interests and other encumbrances upon the Collateral;
f. Environmental Assessments. Lender shall be provided with
environmental risk assessments and indemnifications as required by
Lender with respect to the existence of and indemnification for any
past, present or future environmental hazard pertaining to the
Borrower or any Guarantors' and Debtors' business and assets
(including, but not limited to, the Collateral);
g. Legal Opinions. A signed opinion of counsel for the Borrower
addressed to the Lender (i) to the effect that no litigation is
pending or threatened against the Borrower, except such as has been
disclosed to the Lender or is covered by insurance, (ii) to the
effect that the Loan Documents have been duly and validly authorized,
executed and delivered by the Borrower and are enforceable, except as
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and except to the extent that general equitable
principles may limit the right to obtain specific performance, (iii)
the representations and warranties of the Borrower in this Agreement
are true, (iv) the loan transactions entered into pursuant to this
Agreement are not usurious, (v) no registration with, consent of,
approval of, or other action by any Federal, State, or other
governmental authority or regulatory body to the execution and
delivery of the Loan Documents is required by law, or if so required,
such registration has been made, and consent or approval given or
such other appropriate action taken, and (vi) addressing such other
matters as the Lender may reasonably request;
h. Financial Information. Borrower shall provide and cause any
Guarantors and Debtors to provide Lender with such financial
information and business records as required by Lender. Such
financial information and business records shall be acceptable to
Lender and shall not cause Lender to believe in good faith that the
Borrower or any Guarantors or Debtors shall not be able to perform
its respective obligations under this Agreement or the Loan Documents;
i. Absence of Breach. All of the respective representations and
warranties of the Borrower or any Guarantor or Debtor under this
Agreement or the Loan Documents shall be true and correct on and as
of the date of the execution of those documents or the date of any
advances and/or extensions of the loans and/or other financial
accommodations described therein;
j. Absence of Events of Default. No event of default shall exist under
this Agreement or the Loan Documents nor shall any circumstances
exist that would constitute such an event of default except for
giving of notice or the passage of time or both on or before the date
of execution of those documents or the date of any advances and/or
extensions of the loans and/or other financial accommodations
described therein;
k. Borrower shall have paid or cause to have been paid to Lender all
fees and expenses due and payable under this Agreement or any other
Loan Document on or before the date of execution of those documents
or the date of any advances and/or extensions of the loans and/or
other financial accommodations described therein; and
l. Other:
6. REPRESENTATIONS, WARRANTIES AND COVENANTS. Borrower represents and
warrants to and covenants with Lender that:
a. Tax Identification. The tax identification and/or social security
numbers of Borrower are as follows: TAX I.D. #00-0000000
b. Borrower's Residency. Borrower is a resident of the State(s) of N/A
or a CORPORATION duly organized, validly existing and
in good standing under the laws of the State(s) of ARKANSAS and
licensed to conduct business in all of the jurisdictions in which
its business is conducted;
c. Guarantor's Tax Identification and Residency. Guarantors are
residents of the State(s) or duly organized, validly existing and in
good standing under the laws of the State(s) shown in the Guaranty
Schedule attached to this Agreement and licensed to conduct business
in all of the jurisdictions in which their business is conducted.
Guarantors' tax identification and/or social security numbers are
those shown in the Guaranty Schedule attached to this Agreement;
d. Debtor's Tax Identification and Residency. Debtors are residents of
the State(s) or duly organized, validly existing and in good standing
under the laws of the State(s) shown in Section 3 of this Agreement
and licensed to conduct business in all of the jurisdictions in which
their business is conducted. Guarantors' tax identification and/or
social security numbers are those shown in Section 3 of this
Agreement;
e. Ownership of Collateral. Borrower and any Debtors are and shall
remain sole owners of their respective Collateral free of all tax and
other liens, security interests, encumbrances and claims of any kind
except for those specifically described in this Agreement and the
Loan Documents without Lender waiving the event of default as a
result thereof, Borrower shall take and cause any Debtors to take any
action and execute any document needed to discharge any unauthorized
liens, security interests, encumbrances and claims;
f. Location of Offices. The sole executive offices, places of business,
offices where their business records are located, residences and
domiciles of the Borrower and any Guarantors and Debtors are
specifically described in this Agreement and the Loan Documents.
Borrower shall immediately advise and cause any Guarantors and
Debtors to immediately advise Lender in writing of any change in or
addition to the foregoing addresses;
g. Restructuring. Neither Borrower nor any Guarantor or Debtor shall
become a party to any restructuring of its form of business or
participate in any consolidation, merger, liquidation or dissolution
without obtaining Lender's prior written consent thereto;
h. Beneficiaries. Each of the Guarantors and Debtors, if any, by virtue
of their interest in or relation to Borrower, shall receive a
substantial benefit from Lender's advances, loans and/or other
financial accommodations to Borrower and such benefit shall
constitute adequate consideration for the obligations assumed by any
Guarantor and Debtors under this Agreement and the Loan Documents;
i. Change of Name. Borrower shall provide and cause any Guarantors and
Debtors to provide Lender with thirty (30) or more days' prior
written notice of the nature of any intended change in their
respective names, or the use of any tradename, and when such change
or use shall become effective;
j. Location of Collateral. All of Borrower's and any Debtors' property
constituting a portion of the Collateral is and shall be located at
Borrower's and such Debtors' respective executive offices, places of
business, residences and domiciles specifically described in this
Agreement and the Loan Documents or at such locations to which
Borrower and such Debtors have obtained Lender's prior written
consent;
k. Use of Collateral. Borrower shall use and cause any Debtors to use
the Collateral solely in the ordinary course of their respective
businesses, for the usual purposes intended by the manufacturer (if
applicable), with due care, and in compliance with the laws,
ordinances, regulations, requirements and rules of all federal,
state, county and municipal authorities and insurance policies.
Borrower shall not make or cause any Debtors to refrain from making
any alterations, additions or improvements to the Collateral without
the prior written consent of Lender. Without limiting the foregoing,
all alterations, additions and improvements made to the Collateral
shall be subject to the security interest belonging to Lender, shall
not be removed without the prior written consent of Lender, and shall
be made at Borrower's and the Debtors' sole expense. Borrower shall
take and cause any Debtors to take all actions and make any repairs
or replacements needed to maintain the Collateral in good condition
and working order;
l. Insurance. Borrower shall maintain and cause any Debtors to maintain
insurance on the Collateral in an amount and form and from such
companies as are acceptable to Lender and/or specifically provided in
the Loan Documents. The insurance policies shall require the
insurance companies to provide Lender with at least 10 days'
written notice before such policies are altered or cancelled in
any manner. The insurance policies shall name Lender as a loss payee
and provide that no act or omission of Borrower, any Debtor, or any
other person shall affect the right of Lender to be paid the
insurance proceeds pertaining to the loss or damage of the Collateral;
m. Possession of Chattel Paper. Borrower shall provide and cause any
Debtors to provide Lender with possession of all chattel paper and
instruments constituting a portion of the Collateral and xxxx such
chattel paper and instruments to reflect Lender's security interest
therein;
n. Enforceability of Certain Collateral. All of Borrower's and any
Debtors' accounts, contract rights, chattel paper, documents, general
intangibles, instruments, and other rights and agreements
constituting a portion of the Collateral are and shall be valid,
genuine and legally enforceable obligations and rights belonging to
Borrower and such Debtors against one or more third parties and are
not and shall not be subject to any claim, defense, setoff or
counterclaim of any kind;
o. Substitution of Certain Collateral. Borrower shall not amend,
modify, replace or substitute and shall cause any Debtors not to
amend, modify, replace or substitute any account, contract right,
chattel paper, document, general intangible, instrument, or other
right or agreement constituting the Collateral without the prior
written consent of Lender;
p. Collection Practices. Borrower shall continue to apply and cause any
Debtors to continue to apply their established credit policies with
respect to all future credit transactions. Borrower shall use and
cause any Debtors to use their best efforts to collect from their
account debtors and other third parties, as and when due, any and all
amounts owing under or with respect to each account, contract right,
document, general intangible, instrument or other agreement
(including, without limitation, engaging legal assistance to collect
delinquent obligations from their account debtors and other third
parties) and apply the collected amounts against the outstanding
balances on those obligations and agreements;
q. Records. Borrower shall maintain and cause any Guarantors and
Debtors to maintain complete and accurate books and records of their
respective financial conditions, businesses and properties and with
respect to the Collateral and such records shall be maintained in
accordance with generally accepted accounting principles ("GAAP")
consistently applied, and reflecting all financial transactions;
r. Financial Information. Borrower will, and shall cause any Guarantors
and Debtors to, at all times keep proper books of record and account
in which full, true and correct entries shall be made in accordance
with generally accepted accounting principles and will deliver to
Lender, within ninety (90) days after the end of each fiscal year of
Borrower, Guarantor, and Debtor a copy of the annual financial
statements of Borrower, Guarantor, and Debtor relating to such fiscal
year, such statements to include (i) the balance sheet of Borrower,
Guarantor, and Debtor as at the end of such fiscal year and (ii) the
related income statement, statement of retained earnings and
statement of changes in the financial position of Borrower,
Guarantor, and Debtor for such fiscal year, prepared by such
certified public accountants as may be reasonably satisfactory to
Lender. Borrower also agrees to deliver, and shall cause any
Guarantors and Debtors to deliver, to Lender within fifteen (15) days
after filing same, a copy of Borrower's, Guarantors', and Debtors'
income tax returns and also, from time to time, such other financial
information with respect to Borrower, Guarantor and Debtor as Lender
may request;
s. Inspection of Records. Borrower shall permit and cause any
Guarantors and Debtors to permit officers, agents and employees of
Lender to examine their business and financial records and properties
and the Collateral and to discuss any issues pertaining to their
business operations, financial conditions or the Collateral with
their officers, employees, accountants and other representatives and
agents;
t. Information. All information that has been provided to Lender by or
on behalf of Borrower or any Guarantor or Debtor is true and correct
and does not and shall not omit any material fact necessary to make
such information not misleading. All information that will be
provided to Lender by or on behalf of Borrower or any Guarantor or
Debtor shall be true and correct and shall not omit any material fact
necessary to make such information not misleading. Neither Borrower
nor any Guarantor or Debtor is aware of any fact which has or might
have a material and adverse effect on their business operations,
financial conditions, or assets or the Collateral or have failed or
shall fail to disclose any material facts to Lender that might be
relevant to Lender's decision to enter into or continue to advance
funds, make loans or provide financial accommodations under this
Agreement or any of the Loan Documents;
u. Obligations. This Agreement and each Loan Document constitutes the
Borrower's legal and binding obligations to Lender that are fully
enforceable in accordance with their respective terms and conditions;
v. Conflict of Laws. Borrower's and any Guarantors' and Debtors'
execution of this Agreement and the Loan Documents and performance of
their respective obligations thereunder does not and shall not
conflict with the provisions of any statute, regulation, ordinance,
rule of law, contract or other agreement which may now or hereafter
be binding on those entities;
w. Repayment. Borrower and any Guarantors and Debtors shall duly and
punctually repay the advances, loans and/or other financial
accommodations evidenced by this Agreement and the Loan Documents in
accordance with the terms of the Loan Documents and perform all of
their other respective obligations hereunder or thereunder;
x. Default in Other Obligations. Neither Borrower nor any Guarantor or
Debtor are or shall be in default under any material loan agreement,
indenture, mortgage, security agreement or other agreement or
obligation to which they are a party or by which any of their
respective properties may be bound;
y. Litigation and Claims. No action, suit, or proceeding governmental
investigation or arbitration is or shall be pending or, to the
knowledge of Borrower, threatened against Borrower or any Guarantor
or Debtor which might result in any material and adverse change in
their respective business operations or financial conditions or
materially affect the Collateral and there are and shall be no
outstanding judgments against Borrower or any Guarantor or Debtor;
z. Transfer/Sale of Collateral. Borrower shall not transfer, sell,
lease, assign, convey or otherwise dispose of any of the Collateral
or the properties or assets used in connection with or incidental to
the operation of its business without the prior written consent of
Lender except for inventory sold in the ordinary course of its
business. No Guarantor, if any, shall transfer, sell, lease, assign,
convey or otherwise dispose of any of its properties or assets that
would materially and adversely affect its financial condition or
ability to satisfy it obligations under this Agreement and the Loan
Documents without the prior written consent of Lender. No Debtor, if
any, shall transfer, sell, lease, assign, convey or otherwise dispose
of any of the Collateral without the prior written consent of Lender
except for inventory sold in the ordinary course of its business;
aa. Guaranties. Neither Borrower nor any Guarantor shall assume,
guaranty or otherwise become liable for the obligations of any person
or entity except for such Guarantor's guaranty of Borrower's
obligations to Lender or by virtue of Borrower's or such Guarantor's
endorsement of commercial paper or similar instruments in the
ordinary course of business or except as follows:
ab. Insider Loans. Borrower shall not make a loan to any of its
shareholders, directors, officers or employees or any other person
outside the ordinary course of Borrower's business without the prior
written consent of Lender;
ac. Solvency. Borrower and any Guarantors and Debtors are Solvent and
shall continue to be Solvent after the execution of this Agreement
and the Loan Documents and the creation of Lender's security interest
in the Collateral. "Solvent" shall mean, with respect to the
Borrower and any Guarantor and Debtor, at the time of determination,
that the fair market value of its assets is in excess of the total
amounts of its liabilities including contingent liabilities, that it
is able and shall be able to pay its debts as they mature, and that
it has and shall have sufficient capital to conduct its business and
other financial transactions;
ad. Tax Returns. Borrower and each Guarantor and Debtor have filed and
shall file all tax returns required to be filed by federal, state or
local law (including, but not limited to, all income, franchise,
employment, property and sales tax returns) and have paid and shall
pay all of the tax liabilities and other fees and assessments charged
against that entity or its property when due. Neither Borrower nor
any Guarantor or Debtor knows of any pending investigation of those
entities by any taxing or other governmental authority or of any
pending but unassessed tax liability or other fee or assessment owing
by those entities;
ae. Margin Stock. Neither Borrower nor any Guarantor or Debtor is
engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations G, T, U or X
of the Board of Governors of the Federal Reserve System), and no part
of the advances, loans and/or other financial accommodations provided
by Lender under this Agreement or any of the Loan Documents shall be
used to purchase or carry any such margin stock or to extend credit
to others for the purpose of purchasing or carrying margin stock.
Neither Borrower, any Guarantor or Debtor, nor any person acting on
their behalf has taken or shall take any action that might cause the
transactions contemplated by this Agreement or the Loan Documents to
violate Regulations G, T, U or X or to violate the Securities
Exchange Act of 1934, as amended;
af. Compliance with ERISA. Borrower and any Guarantors and Debtors have
complied and shall comply with all applicable minimum funding and
other requirements of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and there are and shall be no existing
conditions that would give rise to liability thereunder including,
without limitation, any current or potential withdrawal liability
from a multiemployer plan (as defined in Section 3(37) of ERISA). No
reportable event (as defined in Section 4043 of ERISA) has occurred
or shall occur in connection with any employee benefit plan of those
entities that might constitute grounds for the termination thereof by
the Pension Benefit Guaranty Corporation or for the appointment of a
trustee to administer that plan. Borrower shall immediately notify
and cause such Guarantors and Debtors to immediately notify Lender of
any fact (including, but not limited to, any "reportable event" as
that term is defined in Section 4043 of ERISA) arising in connection
with any employee benefit plan belonging to those entities which
might constitute grounds for the termination thereof by the Pension
Benefit Guaranty Corporation or for the appointment of a trustee to
administer that plan and, following such notification, Borrower shall
provide or cause such Guarantors and Debtors to provide Lender with
any additional information or documents as may be requested by Lender
with respect thereto;
ag. Investment Company. Neither Borrower nor any Guarantor or Debtor is
or shall be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
ah. Holding Companies and Affiliates. Neither Borrower nor any Guarantor
or Debtor is or shall be a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of a "holding
company" or a "public utility" within the meaning of the Public
Utility Holding Company Act of 1935, as amended;
ai. Compliance with Applicable Environmental Law. Borrower, each
Guarantor and Debtor, and their respective properties are and shall
be in compliance with all environmental, health and safety laws,
rules and regulations and neither Borrower nor any Guarantor or
Debtor is or shall be subject to any liability or obligation for
remedial action thereunder. No investigation or inquiry by any
governmental authority is or shall be pending or, to the knowledge of
Borrower, threatened against Borrower, any Guarantor or Debtor, or
any of their respective properties with respect to any toxic waste,
toxic substance or Hazardous Material as defined herein. No
Hazardous Materials are or shall be located on or under Borrower or
any Guarantor or Debtor's properties. Neither Borrower, nor any
Guarantor or Debtor has caused or permitted or shall cause or permit
any toxic or hazardous waste or substance to be stored, transported,
or disposed of on or under or released from any of its properties.
The term "Hazardous Materials" shall mean any substance, material, or
waste which is or becomes regulated by any governmental authority
including, but not limited to: (i) petroleum, (ii) asbestos, (iii)
polychlorinated biphenyls, (iv) those substances, materials or wastes
designated as a "hazardous substance" pursuant to Section 311 of the
Clean Water Act or listed pursuant to Section 307 of the Clean Water
Act or any amendments or replacements to these statutes, (v) those
substances, materials or wastes defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery
Act or any amendments or replacements to that statute, or (vi) those
substances, materials or wastes defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, or any amendments or replacements to
that statute;
aj. Compliance with Other Laws. Neither Borrower nor any Guarantor or
Debtor has violated or shall violate any applicable federal, state,
county or municipal statute, regulation or ordinance which may
materially and adversely affect its respective business operations
or financial condition or the Collateral. No event of default (or
circumstances which, with notice or the passage of time or both,
would constitute an event of default) has occurred or shall occur
under this Agreement or the Loan Documents;
ak. Notification Regarding Events of Default. Without limiting any of
the representations, warranties and covenants contained herein,
Borrower shall immediately notify and cause any Guarantors and
Debtors to immediately notify Lender of: (i) the occurrence of any
event of default (or circumstances which, with notice or the passage
of time or both, would constitute an event of default) under this
Agreement or the Loan Documents, (ii) the commencement of any action,
suit, or proceeding or any other matter that might have a material
adverse effect on the Borrower, any Guarantor or Debtor, or the
Collateral, (iii) any change in the management of Borrower;
al. Commercial Purpose. This Agreement and the Loan Documents and the
obligations herein and therein are executed and incurred for
commercial and not consumer purposes and all proceeds of Lender's
advances, loans and/or other financial accommodations to Borrower
shall be used exclusively in the Borrower's business and for no other
purpose;
am. Lender's Influence. Lender has not exercised or attempted to
exercise, directly or indirectly, any degree of control or influence
of any kind whatsoever over the internal business operations or
financial affairs of Borrower, or to the best of Borrower's
knowledge, any Guarantor or Debtor. Borrower shall immediately
notify and cause any Guarantors and Debtors to immediately notify
Lender in writing of any actions that they consider to constitute an
exercise or attempt to exercise such control or influence in the
future. Lender has not acted as a business, investment or financial
consultant or advisor to Borrower or any Guarantor or Debtor.
Borrower shall notify and cause such Guarantors and Debtors to notify
Lender in writing of any attempt by Lender to act as a consultant or
advisor to those entities in the future;
an. Lender's Duty. Lender does not have and shall not have any fiduciary
or similar duty to Borrower, any Guarantor or Debtor;
ao. Lender's Relationship. Lender has not participated and shall not
participate in any type of joint venture or partnership with
Borrower, or any Guarantor or Debtor and the execution and
consummation of this Agreement and the Loan Documents and the
transactions contemplated therein do not and shall not constitute or
amount to a joint venture or partnership;
ap. Lender Not an Agent. Except as expressly set forth in this Agreement
or the Loan Documents, Lender has not acted and shall not act in any
respect as the agent of Borrower or any Guarantor or Debtor for any
purpose and no agency relationship has been or shall be created by
the execution of this Agreement and the Loan Documents or the
consummation of the transactions contemplated thereby;
aq. Borrower's Agreement to Take Action. Borrower shall execute and
deliver and cause any Guarantors and Debtors to execute and deliver
to Lender any documents and take any actions as may be requested by
Lender to carry out the intent and purposes of this Agreement and the
Loan Documents and the transactions contemplated thereby and to
preserve and perfect Lender's liens, security interests and other
encumbrances in the Collateral;
ar. Fiscal Year. Borrower or any Guarantor or Debtor shall not change
its fiscal year without the express written consent of Lender, which
shall not be unreasonably withheld;
as. Prepayments. Borrower or any Guarantors or Debtor shall not make any
voluntary or optional prepayment of any indebtedness for borrowed
money incurred or permitted to
exist under the terms of this Agreement, other than indebtedness
evidenced by the Notes;
at. Lock Box. If Lender so requests at any time (whether or not Borrower
is in default of this Agreement), Borrower shall direct, and shall
cause Debtors to direct, each of its account debtors to make payments
due under the relevant account or chattel paper directly to a special
lock box to be under the control of Lender. Borrower hereby
authorizes and directs Lender to deposit into a special collateral
account to be established and maintained with Lender all checks,
drafts, and cash payments received in said lock box. All deposits in
said collateral account shall constitute proceeds of Collateral and
shall not constitute payment of any indebtedness under the Loan
Documents. At its option, Lender may, at any time, apply finally
collected funds on deposit in said collateral account to the payment
of the indebtedness in such order of application as Lender may
determine, or permit Borrower or Debtors to withdraw all or any part
of the balance on deposit in said collateral account. If the
collateral account is so established, Borrower agrees, and Borrower
shall cause Debtors to agree, promptly to deliver to Lender, for
deposit into said collateral account, all payments on accounts and
chattel paper received by Borrower or Debtors. All such payments
shall be delivered to Lender in the form received (except for any
necessary endorsement). Until so deposited all payments on accounts
and chattel paper received by Borrower or Debtors shall be held in
trust by the recipient for and as the property of Lender and shall
not be commingled with any other funds or property of the recipient;
and
au.
7. FINANCIAL COVENANTS. [ ] If checked, the Borrower covenants and agrees
that from the date hereof until payment in full of all indebtedness and the
performance of all obligations under the Loan Documents, the Borrower shall
at all times maintain the financial positions and ratios in accordance with
GAAP (unless otherwise specified) as stated on the Financial Covenants
Schedule attached to this Agreement.
8. PRESENTMENT, DEMANDS AND NOTICES. Borrower hereby waives and shall cause
any Guarantors and Debtors to waive all of their respective rights to
diligence, presentment, demand, protest, and notice (including, but not
limited to, notice of dishonor, default, non-payment, and the creation,
existence and extension of any and all indebtedness and obligations under
this Agreement and the Loan Documents and of any security and collateral
therefor) to the maximum extent permitted by law.
9. DEFAULT. Borrower shall be in default under this Agreement and the Loan
Documents in the event that Borrower, any Guarantor and Debtor, or any other
party guarantying or securing the advances, loans and/or other financial
accommodations described therein:
a. fails to pay any obligation to Lender when due;
b. fails to perform or observe any term, condition or covenant, or any
warranty or representation by or on behalf of Borrower should prove
to be false or misleading in any material respect;
c. allows or causes the Collateral to be damaged in any material
respect, destroyed, lost, stolen, seized, or confiscated;
d. seeks to revoke, terminate or otherwise limit its liability to Lender;
e. files a petition in voluntary bankruptcy or seeking relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law, or consents to
the filing of any petition against such entity under such law, or a
petition is filed against such entity under any such law, or such
entity admits insolvency or bankruptcy or becomes insolvent or
bankrupt or makes an assignment for the benefit of creditors, or a
custodian (including, without limitation, a receiver, liquidator or
trustee) of such entity or any of its property is appointed by court
order or takes possession thereof;
f. any report, certificate, financial statement or other document
furnished prior to the execution of or pursuant to the terms of this
Agreement shall prove to be false or misleading in any material
respect;
g. permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Borrower, or any Guarantor or any Debtor;
or
h. causes Lender to deem itself insecure in good faith for any reason.
10. RIGHTS OF LENDER ON DEFAULT. If there is a default under this Agreement
or any of the Loan Documents, Lender shall be entitled to exercise one or
more of the following remedies without notice, presentment or demand (except
as required by law):
a. Acceleration - to declare Borrower's and any Guarantors' or Debtors'
obligations to Lender to be immediately due and payable in full (such
acceleration shall be automatic and immediate in the event Borrower
is in default under paragraph 9, part (e) above)
b. Collection Without Judicial Process - to collect Borrower's and any
Guarantors' or Debtors' outstanding obligations with or without
resorting to judicial process;
c. Delivery of Collateral - to require Borrower and any Debtors to
deliver and make available to Lender any Collateral at a place
reasonably convenient to Lender and those entities;
d. Take Possession - to take possession, management and control of the
Collateral without seeking the appointment of a receiver;
e. Collection of Proceeds - to collect all rents, issues, income,
profits and proceeds from the Collateral until Borrower's and any
Guarantors' and Debtors' obligations to Lender are satisfied in full;
f. Appointment of Receiver - to apply for and obtain, without notice and
upon ex parte application, the appointment of a receiver for the
Collateral without regard to Borrower's or any Guarantors' and
Debtors' financial condition or solvency, the adequacy of the
Collateral to secure the payment or performance of the obligations of
those entities to Lender, or the existence of any waste to the
Collateral;
g. Foreclosure - to foreclose any deed of trust, mortgage, lien,
security interest or other encumbrance on the Collateral;
h. Setoff - to setoff Borrower's and any Guarantors' and Debtors'
obligations to Lender against any amounts due to those entities
including, but not limited to, the Borrower's and Guarantors' and
Debtors' monies, instruments, and deposit accounts maintained with
Lender;
i. Additional Collateral - require Borrower or Guarantor or any Debtor
to pledge additional collateral to the Lender from the Borrower's or
Guarantor's or any Debtor's assets, the acceptability and sufficiency
of such collateral to be determined in the Lender's sole discretion;
and
j. Lender's Contractual Rights - to exercise all other rights available
to Lender under the Loan Documents, any other written agreement, or
applicable law.
Lender's rights and remedies are cumulative and may be exercised
together, separately, and in any order. In the event that Lender
institutes an action seeking recovery of any of the Collateral by way
of a prejudgment remedy in an action against Borrower or Debtors,
Borrower hereby waives and shall cause Debtors to waive the posting
of any bond which might otherwise be required.
11. BORROWING CERTIFICATE. [ ] If checked, every request for an advance
made by Borrower shall be made by mailing or telecopying to Lender a
completed Borrowing Certificate (each a "Borrowing Certificate") in the form
attached hereto as Exhibit A. In addition to the Borrowing Certificate,
Borrower shall submit to Lender such other documents and certifications as
may from time to time be required together with such other information as
Lender may request. Lender is hereby authorized by Borrower to make advances
upon the receipt of a Borrowing Certificate executed by an individual
purporting to be an officer of Borrower, unless the Lender has actual
knowledge that the individual executing such Borrowing Certificate is not so
authorized.
12. HOLD HARMLESS AND INDEMNIFICATION. Lender shall not be responsible for
the performance of any of Borrower's or any Debtors' obligations with respect
to the Collateral under any circumstances.
Borrower hereby indemnifies and holds Lender harmless, and shall cause any
Guarantors and Debtors to indemnify and hold Lender harmless, from all
claims, damages, liabilities (including attorneys' fees and legal expenses),
causes of action, actions, suits and other legal proceedings (cumulatively,
"Claims") in any matter relating to or arising out of this Agreement or any
Loan Documents or any act, event or transaction related or attendent thereto
or pertaining to their respective businesses or the Collateral (including,
but not limited to, those Claims involving Hazardous Materials). Borrower
shall immediately provide and cause any Guarantors and Debtors to immediately
provide Lender with written notice of any such Claim. Borrower, upon the
request of Lender, shall defend or cause such Guarantors and Debtors to
defend Lender from such Claims, and pay the attorneys' fees, legal expenses
and other costs incurred in connection therewith. In the alternative, Lender
shall be entitled to employ its own legal counsel to defend such Claims at
Borrower's and/or such Guarantors' and Debtors' cost.
13. REIMBURSEMENT FOR EXPENSES. Upon demand, Borrower shall immediately
reimburse or cause any Guarantors and Debtors to immediately reimburse Lender
for all amounts (including reasonable attorneys' fees and legal expenses)
expended by Lender, to the extent permitted by applicable law, in the: (i)
negotiation, preparation, amendment, extension, modification, replacement or
substitution of this Agreement or the Loan Documents, (ii) attachment,
creation, filing, perfection, and recording of Lender's liens, security
interests, and other encumbrances in the Collateral or any UCC and other
searches and title or insurance policies in connection therewith, (iii)
defense of the validity and priority of Lender's liens, security interests
and other encumbrances against the Collateral, and (iv) enforcement or
defense of any obligation or the exercise of any right or remedy described in
this Agreement or the Loan Documents, and (v) refinancing or restructuring of
the advances, loans and/or financial accommodations provided under this
Agreement in the nature of a "work out" or in any insolvency or bankruptcy
proceedings. These sums shall bear interest at the lower of the highest rate
described in any of the Loan Documents or the highest rate allowed by law
from the date of payment until the date of reimbursement and be secured by
the Collateral.
14. APPLICATION OF MONIES. All payments to Lender made by or on behalf of
Borrower or any Guarantors and Debtors or monies received by Lender from the
Collateral or otherwise may be applied against any amounts paid by Lender in
connection with the exercise of its rights or remedies described in this
Agreement and the Loan Documents (including attorneys' fees and legal
expenses together with interest at the rate described in the foregoing
paragraph) and then to the payment of the remaining obligations under this
Agreement and the Loan Documents in whatever order Lender chooses.
15. POWER OF ATTORNEY. Borrower hereby appoints and shall cause any
Guarantors and Debtors, jointly and severally, to appoint Lender as their
attorney-in-fact to endorse their names on all instruments and other
documents payable to those entities. In addition, Lender shall be entitled,
but not required, to perform any action or execute any document required to
be taken or executed by Borrower or any Guarantors and Debtors under this
Agreement or the Loan Documents. Lender's performance of such action or
execution of such documents shall not relieve Borrower or any Guarantors and
Debtors from any obligation to cure any default under this Agreement and the
Loan Documents. The powers of attorney described in this paragraph are
coupled with an interest and are irrevocable.
16. ESSENCE OF TIME. Borrower and Lender agree that time is of the essence
with respect to this Agreement and the Loan Documents.
17. MODIFICATION AND WAIVER. The modification or waiver of any Borrower's or
any Guarantors' and Debtors' obligations or Lender's rights under this
Agreement or the Loan Documents must be contained in a writing signed by
Lender. Lender may perform any of Borrower's or any Guarantors' and Debtors'
obligations or delay or fail to exercise any of its rights without causing a
waiver of those obligations or rights. A waiver on one occasion shall not
constitute a waiver on any other occasion. Borrower's and any Guarantors'
and Debtors' obligations to Lender under this Agreement and the Loan
Documents shall not be affected if Lender amends, compromises, exchanges,
fails to exercise, impairs or releases any of the obligations belonging to
any co-borrower, Guarantor or obligor or any of its rights against any
co-borrower, Guarantor, obligor or Collateral.
18. SUCCESSORS AND ASSIGNS. This Agreement and the Loan Documents shall be
binding upon and inure to the benefit of Borrower, Lender and their
respective successors, assigns, trustees, receivers, administrators, personal
representatives, legatees and devisees.
19. ASSIGNMENT AND PARTICIPATIONS. Borrower and any Guarantors and Debtors
shall not be entitled to assign any of their rights, remedies or obligations
described in this Agreement or the Loan Documents without the prior written
consent of Lender which may be withheld by Lender in its sole discretion.
Lender shall be entitled to grant participations in or assign some or all of
its rights and remedies described in this Agreement and the Loan Documents
without notice to or the prior consent of Borrower or any Guarantors and
Debtors in any manner.
20. NOTICES. Any notice or other communication to be provided under this
Agreement or the Loan Documents shall be in writing and sent to the parties
at the addresses described in this Agreement or the Loan Documents or such
other address as the parties may designate in writing from time to
time.
21. SEVERABILITY. If any provision of this Agreement or the Loan Documents
is invalid, illegal or unenforceable, the remaining provisions of this
Agreement and the Loan Documents shall continue to be valid, legal and
enforceable in all respects.
22. CHOICE OF LAW AND CONSENT TO JURISDICTION AND VENUE. This Agreement and
the Loan Documents shall be governed by the laws of the state indicated in
the Lender's address (unless specified otherwise in such documents).
Borrower hereby consents and shall cause any Guarantors and Debtors to
consent to the jurisdiction and venue of any court located in the state
indicated in the Lender's address in the event of any legal proceeding with
respect to the negotiation, execution, or delivery of this Agreement or the
Loan Documents, the enforcement of any obligation, right or remedy
thereunder, or the assertion of any claim, defense, setoff or counterclaim in
connection therewith.
23. WAIVER OF JURY TRIAL. LENDER AND BORROWER KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT
TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH
THE FINANCIAL ACCOMMODATIONS DESCRIBED HEREIN, THIS AGREEMENT AND ANY OTHER
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER
MAKING THE LOAN EVIDENCED BY THE PROMISSORY NOTE.
24. MISCELLANEOUS. All references to Borrower shall refer to all of the
parties signing below. Borrower's obligations to Lender, if there be more
than one Borrower signing below, shall be joint and several. This Agreement,
the Loan Documents and other documents delivered in connection therewith
represent the entire complete and integrated understanding between Borrower,
any Guarantors or Debtors, and Lender pertaining to the terms and conditions
of those documents and the advances, loans and/or other financial
accommodations described therein and supersedes all prior agreements and
commitments, written and oral, relating to the subject matter hereof.
25. ADDITIONAL TERMS.
DATED THIS 5TH DAY OF DECEMBER, 1994. LENDER: THE XXXXXX STATE BANK
/s/ Xxxxx XxXxxxxxx
----------------------------------------------
XXXXX XXXXXXXXX
SENIOR VICE PRESIDENT
BORROWER: XXXXXXX OLDSMOBILE-GMC, INC. BORROWER: XXXXXXX OLDSMOBILE-GMC, INC.
/s/ Xxxxx Xxxxxxx
-------------------------------------------------
XXXXX XXXXXXX /s/ Xxxx Xxxxxxx
PRESIDENT ----------------------------------------------
XXXX XXXXXXX
VICE PRESIDENT
BORROWER: XXXXXXX OLDSMOBILE-GMC, INC. BORROWER:
/s/ Xxx Xxxxxxx
-------------------------------------------------
XXX XXXXXXX
SECRETARY ----------------------------------------------
BORROWER: BORROWER:
-------------------------------------------------
----------------------------------------------
BORROWER: BORROWER:
-------------------------------------------------
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SCHEDULE A
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PRINCIPAL FUNDING/
TYPE OF INTEREST AMOUNT/ CREDIT AGREEMENT MATURITY CUSTOMER LOAN
LOAN RATE LIMIT DATE DATE NUMBER NUMBER
-------------------------------------------------------------------------------------------
DRAW 8.500% $2,800,000.00 12/05/94 02/03/95 11125003 119512
-------------------------------------------------------------------------------------------
SCHEDULE B
