BUSINESS LOAN AGREEMENT
|
Principal
$2,000,000.00
|
Loan
Date
April
1, 2010
|
Maturity
April
1, 2011
|
Loan
No
|
Call
/ Coll
|
Account
|
Officer
|
Initials
|
|
References
in the boxes above are for Xxxxxx’s use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing “***” has been omitted due to text length
limitations.
|
|||||||
|
Borrower:
|
Wyoming
Financial Lenders, Inc.
|
Lender:
|
WERCS
|
|
00000
X Xxxxxx, Suite 000
|
000
Xxxx 0xx
Xxxxxx
|
||
|
Omaha,
NE 68137
|
Casper,
WY 82601
|
||
THIS
BUSINESS LOAN AGREEMENT dated April 1, 2010, is made and executed between
Wyoming Financial Lenders, Inc. (“Borrower) and WERCS (“Lender) on the following
terms and conditions. Borrower has received prior commercial loans from
Lender or has applied to Lender for a commercial loan or loans or other
financial accommodations, including those which may be described on any exhibit
or schedule attached to this Agreement. Xxxxxxxx understands and agrees
that: (A) in granting, renewing, or extending any Loan, Lender is
relying upon Borrower’s representations, warranties, and agreements as set forth
in this Agreement; (B) the granting, renewing, or extending of any Loan by
Xxxxxx at all times shall be subject to Lender’s sole judgment and discretion;
and (C) all such Loans shall be and remain subject to the terms and
conditions of this Agreement.
TERM. This Agreement
shall be effective as of April 1,2010, and shall continue in full force and
effect until such time as all of Borrower’s Loans in favor of 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.
ADVANCE AUTHORITY. The
following person or persons are authorized to request advances and authorize
payments under the line of credit until Xxxxxx receives from Borrower, at
Xxxxxx’s address shown above, written notice of revocation of such
authority: Xxxx Xxxxxxxx,
President of Wyoming Financial Lenders, Inc.; Xxxx Xxxxxx, Treasurer of Wyoming
Financial Lenders, Inc.; and Xxx Xxxxxx, Secretary of Wyoming Financial Lenders,
Inc.
CONDITIONS PRECEDENT TO EACH
ADVANCE. Lender’s obligation to make the initial Advance and each
subsequent Advance under this Agreement 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.
Loan Documents. Borrower
shall provide to Lender the following documents for the 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; (6) together with all such Related Documents as Lender
may require for the Loan; all in form and substance satisfactory to Lender and
Xxxxxx’s counsel.
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 its counsel
may require.
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 under
this Agreement are true and correct.
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 or under any Related
Document.
REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Lender, as of the date of this
Agreement, as of the date of each disbursement of loan proceeds, as of the date
of any renewal, extension or modification of any Loan, and at all times any
Indebtedness exists:
Organization. Borrower
is a corporation for profit 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 Wyoming. 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. Xxxxxxxx maintains an office at 00000 X Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxxx 00000. 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 prior to any change in 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.
Assumed Business Names.
Xxxxxxxx has filed or recorded all documents or filings required by law
relating to all assumed business names used by Xxxxxxxx. Excluding the
name of Xxxxxxxx, the following is a complete list of all assumed business names
under which Borrower does business: None.
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
incorporation or organization, or bylaws, 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.
Financial Information.
Each of Xxxxxxxx’s financial statements supplied to Xxxxxx truly and
completely disclosed Xxxxxxxx’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.
Legal Effect. This
Agreement constitutes, and any 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.
Properties. Except as
contemplated by this Agreement or as previously disclosed in Borrowers financial
statements or in writing to Lender and as accepted by Xxxxxx, 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 Xxxxxxxx’s properties are
titled in Borrower’s legal name, and Xxxxxxxx has not used or filed a financing
statement under any other name for at least the last five
(5) years.
Hazardous Substances.
Except as disclosed to and acknowledged by Xxxxxx 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. (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; and 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 of
the Collateral with this section of the Agreement. Any inspections or
tests made by Lender shall be at Borrowers 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.
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 Xxxxxx in
writing.
Taxes. To the best of
Xxxxxxxx’s knowledge, all of Xxxxxxxx’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.
Lien Priority. Unless
otherwise previously disclosed to Lender in writing, Xxxxxxxx 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 Borrower’s Loan and Note, that would be prior
or that may in any way be superior to Lender’s Security Interests and rights in
and to such Collateral.
Binding Effect. This
Agreement, the Note, all Security Agreements (if any), 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.
AFFIRMATIVE COVENANTS.
Borrower covenants and agrees with Xxxxxx that, so long as this Agreement
remains in effect, Borrower will:
Notices of Claims and
Litigation. Promptly inform Xxxxxx in writing of (1) all
material adverse changes in Borrower’s financial condition, 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.
Financial Records.
Maintain its books and records in accordance with GAAP, applied on a consistent
basis, and permit Xxxxxx to examine and audit Xxxxxxxx’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, Xxxxxxxx’s balance sheet and income statement
for the year ended, prepared by Xxxxxxxx.
Tax Returns. As soon as
available, but in no event later than one-hundred-twenty (120) days after
the applicable filing date for the tax reporting period ended, federal and other
governmental tax returns, prepared by a tax professional satisfactory to
Lender.
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.
Additional Information.
Furnish such additional information and statements as Xxxxxx may request from
time to time.
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 Xxxxxx, 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 sixty (60) days’ prior written notice to
Lender. Each insurance policy also shall include an endorsement providing
that coverage in favor of Lender will not be 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 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.
Guaranties. Prior to
disbursement of any Loan proceeds, furnish executed guaranties of the Loans in
favor of Xxxxxx, executed by the guarantors named below, on Xxxxxx’s forms, and
in the amounts and under the conditions set forth in those
guaranties.
|
Names of Guarantors
|
Amounts
|
|
|
Unlimited
|
Other Agreements. Comply
with all terms and conditions of all other agreements, whether now or hereafter
existing, between Borrower and any other party and notify Lender immediately in
writing of any default in connection with any other such
agreements.
Loan Proceeds. Use all
Loan proceeds solely to pay off, in full, loan no. 10101 from Banco Popular to
Borrower existing on the date hereof, obtain releases of any and all collateral
securing such loan, and obtain releases of any and all guarantees of such loan,
and, only after said payoff is made and releases are obtained, use the balance
for Borrower’s business operations, unless specifically consented to the
contrary by Xxxxxx in writing.
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. Provided however,
Xxxxxxxx will not be required to pay and discharge any such assessment, tax,
charge, xxxx, xxxx or claim so long as (1) the legality of the same shall
be contested in good faith by appropriate proceedings, and (2) Borrower
shall have established on Borrower’s books adequate reserves with respect to
such contested assessment, tax, charge, levy, lien, or claim in accordance with
GAAP.
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 Xxxxxx
immediately in writing of any default in connection with any
agreement.
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;
and conduct its business affairs in a reasonable and prudent
manner.
Environmental Studies.
Promptly conduct and complete, at Borrower’s expense, all such investigations,
studies, samplings and testings as may be requested by Lender or any
governmental authority 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.
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 proceeding,
including appropriate appeals, so long as Borrower has notified Lender in
writing prior to doing so and so long as, in Xxxxxx’s sole opinion, Xxxxxx’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 Xxxxxx’s interest.
Inspection. Permit
employees or agents of Lender at any reasonable time to inspect any and all
Collateral for the Loan or Loans and Xxxxxxxx’s other properties and to examine
or audit Xxxxxxxx’s books, accounts, and records and to make copies and
memoranda of Xxxxxxxx’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
Xxxxxx, 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.
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.
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 as Lender or its attorneys may reasonably request
to evidence and secure the Loans and to perfect all Security
Interests.
RECOVERY OF ADDITIONAL COSTS.
If the imposition of or any change in any law, rule, regulation or
guideline, or the interpretation or application of any thereof by any court or
administrative or governmental authority (including any request or policy not
having the force of law) shall impose, modify or make applicable any taxes
(except federal, state or local income or franchise taxes imposed on Lender),
reserve requirements, capital adequacy requirements or other obligations which
would (A) increase the cost to Lender for extending or maintaining the
credit facilities to which this Agreement relates, (B) reduce the amounts
payable to Lender under this Agreement or the Related Documents, or
(C) reduce the rate of return on Lender’s capital as a consequence of
Lender’s obligations with respect to the credit facilities to which this
Agreement relates, then Borrower agrees to pay Lender such additional amounts as
will compensate Lender therefor, within five (5) days after Xxxxxx’s
written demand for such payment, which demand shall be accompanied by an
explanation of such imposition or charge and a calculation in reasonable detail
of the additional amounts payable by Borrower, which explanation and
calculations shall be conclusive in the absence of manifest error.
XXXXXX’S EXPENDITURES.
If any action or proceeding is commenced that would materially affect Xxxxxx’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 Xxxxxxxx. 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 Xxxxxx that, while this Agreement is in
effect, Borrower shall not, without the prior written consent of
Lender:
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 Xxxxxx.
Continuity of
Operations. (1) Engage in any business activities
substantially different than those in which Borrower is 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) pay any dividends on
Borrower’s stock (other than dividends payable in its stock); provided, however
that notwithstanding the foregoing, but only so long as no Event of Default has
occurred and is continuing or would result from the payment of dividends, if
Borrower is a “Subchapter S Corporation” (as defined in the Internal Revenue
Code of 1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the shareholders
to pay income taxes and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from their status as
Shareholders of a Subchapter S Corporation because of their ownership of shares
of Borrower’s stock, or purchase or retire any of Borrower’s outstanding shares
or alter or amend Borrower’s capital structure.
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 other than in the ordinary course of business.
Agreements. Enter into
any agreement containing any provisions which would be violated or breached by
the performance of Borrower’s obligations under this Agreement or in connection
herewith.
CESSATION OF ADVANCES.
If Lender has made any commitment to make any Loan 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 dies,
becomes incompetent or 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.
DEFAULT. Each of the
following shall constitute an Event of Default under this
Agreement:
Payment Default.
Xxxxxxxx fails to make any payment when due under the Loan.
Other Defaults. Borrower
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 between Lender and Borrower.
Default in Favor of Third
Parties. Borrower or any Grantor 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 Grantor’s property or Borrower’s or any Grantor’s
ability to repay the Loans or perform their respective obligations under this
Agreement or any of the Related Documents.
False Statements. Any
warranty, representation or statement made or furnished to Lender by Borrower 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.
Insolvency. The
dissolution or termination of Xxxxxxxx’s existence as a going business, the
insolvency of Xxxxxxxx, the appointment of a receiver for any part of Xxxxxxxx’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.
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.
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 Xxxxxxxx’s
accounts. However, this Event of Default shall not apply if there is a
good faith dispute by Xxxxxxxx as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower
gives Xxxxxx 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.
Events Affecting
Guarantor. Any of the preceding events occurs with respect to any
Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
Change in Ownership. Any
change in ownership of twenty-five percent (25%) or more of the common stock of
Borrower.
Adverse Change. A
material adverse change occurs in Borrower’s financial condition, or a change
occurs in the current management of Borrower, or Xxxxxx believes the prospect of
payment or performance of the Loan is impaired.
Insecurity. Lender in
good faith believes itself insecure.
Right to Cure. If any
default, other than a default on Indebtedness, is curable and if Borrower or
Grantor, as the case may be, has not been given a notice of a similar default
within the preceding twelve (12) months, it may be cured if Borrower or
Grantor, as the case may be, after Xxxxxx sends written notice to Borrower or
Grantor, as the case may be, demanding cure of such default: (1) cures the
default within ten (10) days; or (2) if the cure requires more than
ten (10) days, immediately initiates steps which Lender deems in Xxxxxx’s
sole discretion to be sufficient to cure the default and thereafter continues
and completes 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, 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 Xxxxxx 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 Grantor shall not affect
Xxxxxx’s right to declare a default and to exercise its rights and
remedies.
CURRENT RATIO. From the
date of this Agreement and thereafter until the Note and all other Liabilities
of the Borrower to the Lender are paid in full, Borrower shall not permit the
ratio of Borrower’s current assets to Borrower’s current liabilities to at any
time be less than 1.0:1.0.
DEBT TO ADJUSTED NET WORTH.
Borrower shall not permit the ratio of Xxxxxxxx’s total debt to
Xxxxxxxx’s adjusted net worth, defined as total liabilities less subordinated
debt / net worth plus subordinated debt, to at anytime exceed
2.50:1.
RESTRICTED PAYMENTS.
Borrower shall not purchase or redeem any shares of its stock, declare or
pay any dividends thereon (other than stock dividends), make any distribution to
stockholders as such or set aside any funds for any such purpose, and shall not
prepay, purchase or redeem any of its subordinated indebtedness without Lenders’
prior approval.
SUBORDINATION OF SHAREHOLDER
DEBT. Any obligation due and owing from Borrower to any Shareholder
now existing or hereinafter arising shall be, upon request of Lender be
subordinated to the Indebtedness described herein.
BEST PRACTICES. Borrower
shall be fully compliant with the “Best Practices” promulgated by the Community
Financial Service Association of America. “Best Practices” describe the
operating standards that lenders are subject to.
LOAN PROCEEDS. Loan
proceeds shall only be for the use of Wyoming Financial Lenders,
Inc..
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 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. Xxxxxxxx agrees to pay upon demand all of Xxxxxx’s costs
and expenses, including Xxxxxx’s attorneys’ fees and Xxxxxx’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
Xxxxxx’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. Borrower
also shall pay all court costs and such additional fees as may be directed by
the court.
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.
Consent to Loan
Participation. Xxxxxxxx agrees and consents to Xxxxxx’s sale or
transfer, whether now or later, of one or more participation interests in the
Loan 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 about any other matter relating to the Loan, and Borrower
hereby waives any rights to privacy Borrower 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. Xxxxxxxx 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 Xxxxxxxx’s obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. Xxxxxxxx
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 Xxxxxx.
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
Nebraska without regard to its conflicts of law provisions. This Agreement
has been accepted by Xxxxxx in the State of Nebraska.
Choice of Venue. If
there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx’s request to submit to the
jurisdiction of the courts of Xxxxxxx County, State of Nebraska.
No Waiver by Xxxxxx.
Lender shall not be deemed to have waived any rights under this Agreement unless
such waiver is given in writing and signed by Xxxxxx. 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 Xxxxxx 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 Xxxxxx, nor any course of dealing between
Xxxxxx 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
(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, Xxxxxxxx agrees to keep Xxxxxx
informed at all times of Xxxxxxxx’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.
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.
Subsidiaries and Affiliates of
Borrower. 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.
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. Xxxxxxxx understands and agrees that, in extending Loan
Advances, Xxxxxx 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 Xxxxxx, all such representations, warranties and covenants will survive
the extension of Loan Advances and delivery to Lender of the Related Documents,
shall be continuing in nature, shall be deemed made and redated by Borrower at
the time each Loan Advance is made, and shall remain in full force and effect
until such time as Xxxxxxxx’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.
Waive
Jury. All parties to this Agreement hereby waive the right to any jury
trial in any action, proceeding, or counterclaim brought by any party against
any other party.
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.
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 Wyoming Financial Lenders, Inc. and includes all co-signers and
co-makers signing the Note and all their successors and assigns.
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.
Grantor. The word
“Grantor” means each and all of the persons or entities granting a Security
Interest in any Collateral for the Loan, including without limitation all
Borrowers granting such a Security Interest.
Guarantor. The word
“Guarantor” means any guarantor, surety, or accommodation party of any or all of
the Loan.
Guaranty. The word
“Guaranty” means the guaranty from Guarantor to Lender, including without
limitation a guaranty of all or part of the Note.
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 is responsible under this
Agreement or under any of the Related Documents.
|
BUSINESS LOAN
AGREEMENT
|
||
|
Loan
No:
|
(Continued)
|
Page
7
|
Lender. The word
“Lender” means WERCS, its successors and assigns.
Loan. The word “Loan”
means any and all loans and financial accommodations from Lender to Borrower
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 Note executed by Wyoming Financial Lenders, Inc. in the principal
amount of $2,000,000.00 dated April 1, 2010, together with all renewals of,
extensions 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 Xxxxxxxx’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.
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.
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.
XXXXXXXX
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND
XXXXXXXX AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED APRIL
1, 2010.
BORROWER:
WYOMING
FINANCIAL LENDERS, INC.
|
By:
|
|
|
Xxxx
Xxxxxxxx, President of Wyoming
|
|
|
Financial
Lenders, Inc.
|
LENDER:
WERCS,
a Wyoming corporation
|
By:
|
|
|
Authorized
Signer
|
