BUSINESS LOAN AGREEMENT
Exhibit
10.21
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Principal
$584,771.00
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Loan
Date
03-28-2006
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Maturity
03-30-2009
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Loan
No
0000000000
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Call
/ Coll
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Account
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Officer
F8B
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Initials
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|
References
in the shaded area are for Lender’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.
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Borrower: AT&S
Holdings, Inc. Lender: BANK
OF
THE WEST
American
Trailer & Storage,
Inc. Kansas
City BBC #21383
0000
Xxxxxxxxxx
Xxxxxxxxxx 000
X.X. Xxxx Xxxx
Xxx
Xxxxxx
Xxxx, XX 00000 Xxx’x
Xxxxxx, XX 00000
(000)
000-0000
THIS
BUSINESS LOAN AGREEMENT dated March 28, 2006, is made and executed between
AT&S Holdings, Inc.; and American Trailer & Storage, Inc. (“Borrower”)
and BANK OF THE WEST (“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
(“Loan”). Borrower 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 Lender 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 March 28, 2006, 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.
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)
guaranties; (3) together with all such Related Documents as Lender may require
for the Loan; all in form and substance satisfactory to Lender and Lender’s
counsel.
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.
MULTIPLE
BORROWERS.
This
agreement has been executed by multiple obligors who are referred to in this
Agreement individually, collectively and interchangeably as “Borrower.” Unless
specifically stated to the contrary, the word “Borrower” as used in this
Agreement, including without limitation all representations, warranties and
covenants, shall include all Borrowers. Borrower understands and agrees that,
with or without notice to any one Borrower, Lender may (A) make one or more
additional secured or unsecured loans or otherwise extend additional credit
with
respect to any other Borrower; (B) with respect to any other Borrower alter,
compromise, renew, extend, accelerate, or otherwise change one or more times
the
time for payment or other terms of any indebtedness, including increases and
decreases of the rate of interest on the indebtedness; (C) exchange, enforce,
waive, subordinate, fail or decide not to perfect, and release any security,
with or without the substitution of new collateral; (D) release, substitute,
agree not to xxx, or deal with any one or more of Borrower’s or any other
Borrower’s sureties, endorsers, or other guarantors on any terms or in any
manner Lender may choose; (E) determine how, when and what application of
payments and credits shall be made on any indebtedness; (F) apply such security
and direct the order or manner of sale of any Collateral, including without
limitation, any non-judicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may determine;
(G) sell, transfer, assign, or grant participations in all or any part of the
Loan; (H) exercise or refrain from exercising any rights against Borrower or
others, or otherwise act or refrain from acting; (I) settle or compromise any
indebtedness; and (J) subordinate the payment of all or any part of any of
Borrower’s indebtedness to Lender to the payment of any liabilities which may be
due Lender or others.
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.
AT&S
Holdings, Inc. 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 Nevada. AT&S Holdings, Inc. is duly authorized to
transact business in all other states in which AT&S Holdings, Inc. is doing
business, having obtained all necessary filings, governmental licenses and
approvals for each state in which AT&S Holdings, Inc. is doing business.
Specifically, AT&S Holdings, Inc. 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. AT&S Holdings, Inc. 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. AT&S Holdings, Inc. maintains an office at
0000 Xxxxxxxxxx Xxxxxxxxxx, Xxxxxx Xxxx, XX 00000. Unless AT&S Holdings,
Inc. 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. AT&S Holdings, Inc. will notify Lender prior to any change in
the location of AT&S Holdings, Inc.’s state of organization or any change in
AT&S Holdings, Inc.’s name. AT&S Holdings, Inc. 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 AT&S Holdings, Inc. and AT&S Holdings, Inc.’s
business activities.
American
Trailer & Storage, Inc. 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 Missouri. American Trailer & Storage,
Inc. is duly authorized to transact business in all other states in which
American Trailer & Storage, Inc. is doing business, having obtained all
necessary filings, governmental licenses and approvals for each state in which
American Trailer & Storage, Inc. is doing business. Specifically, American
Trailer & Storage, Inc. 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. American
Trailer & Storage, Inc. 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. American Trailer & Storage, Inc. maintains an
office at 0000 Xxxxxxxxxx Xxxxxxxxxx, Xxxxxx Xxxx, XX 00000. Unless American
Trailer & Storage, Inc. has designated otherwise in writing, the principal
office is the office at which American Trailer & Storage, Inc. keeps its
books and records including its records concerning the Collateral. American
Trailer & Storage, Inc. will notify Lender prior to any change in the
location of American Trailer & Storage, Inc. state of organization or any
change in American Trailer & Storage, Inc. name. American Trailer &
Storage, Inc. 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 American Trailer &
Storage, Inc. and American Trailer & Storage, Inc. business
activities.
Assumed
Business Names.
Borrower
has filed or recorded all documents or filings required by law relating to
all
assumed business names used by Borrower. Excluding the name of Borrower, 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 Borrower’s articles of incorporation or organization,
or bylaws, or 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
Borrower’s financial statements supplied to Lender truly and completely
disclosed Borrower’s financial condition as of the date of the statement, and
there has been no material adverse change in Borrower’s financial condition
subsequent to the date of the most recent financial statement supplied to
Lender. Borrower has no material contingent obligations except as disclosed
in
such financial statements.
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 Borrower’s
financial statements or in writing to Lender and as accepted by Lender, and
except for property tax liens for taxes not presently due and payable, Borrower
owns and has good title to all of Borrower’s properties free and clear of all
Security Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower’s properties are titled
in Borrower’s legal name, and Borrower has not used or filed a financing
statement under any other name for at least the last five (5)
years.
Hazardous
Substances.
Except
as disclosed to and acknowledged by Lender in writing, Borrower represents
and
warrants that: (1) During the period of Borrower’s ownership of Borrower’s
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 Borrower’s expense and for
Lender’s purposes only and shall not be construed to create any responsibility
or liability on the part of Lender to Borrower or to any other person. The
representations and warranties contained herein are based on Borrower’s due
diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against
Lender for indemnity or contribution in the event Borrower becomes liable for
cleanup or other costs under any such laws, and (2) agrees to indemnify 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, 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 has been disclosed to and acknowledged by Lender in
writing.
Taxes.
To the
best of Borrower’s knowledge, all of Borrower’s tax returns and reports that are
or were required to be filed, have been filed, and all taxes, assessments and
other governmental charges have been paid in full, except those presently being
or to be contested by Borrower in good faith in the ordinary course of business
and for which adequate reserves have been provided.
Lien
Priority.
Unless
otherwise previously disclosed to Lender in writing, Borrower has not entered
into or granted any Security Agreements, or permitted the filing or attachment
of any Security Interests on or affecting any of the Collateral directly or
indirectly securing repayment of 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 Lender that, so long as this Agreement remains in
effect, Borrower will:
Notices
of Claims and Litigation.
Promptly
inform Lender 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 Lender to examine and audit Borrower’s books and records at all
reasonable times.
Financial
Statements.
Furnish
Lender with the following:
Interim
Statements.
As soon
as available, but in no event later than 20 days after the end of each month,
Borrower’s balance sheet and profit and loss statement for the period ended,
prepared by Borrower in form satisfactory to Lender.
Additional
Requirements.
Annual
Statements.
As soon
as available, but in no event later than one-hundred-twenty (120) days after
the
end of each fiscal year, Borrower’s balance sheet and income statement for the
year ended, audited by a certified public accountant satisfactory to
Lender.
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 Lender may request from time
to
time.
Financial
Covenants and Ratios.
Comply
with the following covenants and ratios:
Minimum
Income and Cash flow requirements.
Borrower
shall comply with the following cash flow requirements:
Cash
Flow / Current Maturity (LTD) Ratio. Maintain
a ratio of Cash Flow / Current Maturity (LTD) in excess of 1.250
to 1.000.
The
ratio “Cash Flow / Current Maturity (LTD)” means Borrower’s Net Profits plus
Depreciation, Depletion and Amortization divided by Borrower’s Current Portion
of Long Term Indebtedness.
Other
Requirements.
Borrower
agrees to maintain the balance on the Note equal to or less than the Borrowing
Base at all times. The Borrowing Base shall be calculated at an amount equal
to
75% of all Accounts Receivable. Borrower shall provide Lender a monthly
Borrowing Base Certificate whenever the $250M xxxxx has a balance, but at a
minimum a quarterly mock borrowing base certificate will be required in a format
acceptable to Lender.
Debt
/ Worth ratio.
Maintain
a ratio of Debt / Worth not in excess of 4.000
to 1.000.
The
ratio “Debt / Worth” means Borrower’s Total Liabilities divided by Borrower’s
Tangible Net Worth calculated using subordinated debt of owners as
equity.
Current
Ratio.
Maintain
a Current Ratio in excess of 1.000
to 1.000.
The
term” Current Ratio” means Borrower’s total Current Assets divided by Borrower’s
total Current Liabilities less current maturity of subordinated debt less
outstanding on the $750M guidance line.
Except
as
provided above, all computations made to determine compliance with the
requirements contained in this paragraph shall be made in accordance with
generally accepted accounting principles, applied on a consistent basis, and
certified by Borrower as being true and correct.
Insurance.
Maintain
fire and other risk insurance, public liability insurance and such other
insurance as Lender may require with respect to Borrower’s properties and
operations, in form, amounts, coverages and with insurance companies acceptable
to Lender. Borrower, upon request of Lender, will deliver to Lender from time
to
time the policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be cancelled or diminished
without at least fifteen (15) 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.
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 for Borrower’s business operations, unless specifically
consented to the contrary by Lender 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.
Performance.
Perform
and comply, in a timely manner, with all terms, conditions, and provisions
set
forth in this Agreement, in the Related Documents, and in all other instruments
and agreements between Borrower and Lender. Borrower shall notify Lender
immediately in writing of any default in connection with any
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;
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
Lender’s sole opinion, Lender’s interests in the Collateral are not jeopardized.
Lender may require Borrower to post adequate security or a surety bond,
reasonably satisfactory to Lender, to protect Lender’s interest.
Inspection.
Permit
employees or agents of Lender at any reasonable time to inspect any and all
Collateral for the Loan or Loans and Borrower’s other properties and to examine
or audit Borrower’s books, accounts, and records and to make copies and
memoranda of Borrower’s books, accounts and records. If Borrower now or at any
time hereafter maintains any records (including without limitation computer
generated records and computer software programs for the generation of such
records) in the possession of a third party, Borrower, upon request of Lender,
shall notify such party to permit Lender free access to such records at all
reasonable times and to provide Lender with copies of any records it may
request, all at Borrower’s expense.
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 therefore, within five (5) days
after Lender’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.
LENDER’S
EXPENDITURES.
If any
action or proceeding is commenced that would materially affect Lender’s interest
in the Collateral or if Borrower fails to comply with any provision of this
Agreement or any Related Documents, including but not limited to Borrower’s
failure to discharge or pay when due any amounts Borrower is required to
discharge or pay under this Agreement or any Related Documents, Lender on
Borrower’s behalf may (but shall not be obligated to) take any action that
Lender deems appropriate, including but not limited to discharging or paying
all
taxes, liens, security interests, encumbrances and other claims, at any time
levied or placed on any Collateral and paying all costs for insuring,
maintaining and preserving any Collateral. All such expenditures incurred or
paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Lender to the date of repayment
by Borrower. All such expenses will become a part of the Indebtedness and,
at
Lender’s option, will (A) be payable on demand; (B) be added to the balance of
the Note and be apportioned among and be payable with any installment payments
to become due during either (1) the term of any applicable insurance policy;
or
(2) the remaining term of the Note; or (C) be treated as a balloon payment
which
will be due and payable at the Note’s maturity.
NEGATIVE
COVENANTS.
Borrower
covenants and agrees with Lender that while this agreement is in effect,
Borrower shall not, without the prior written consent of the
Lender:
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.
RIGHT
OF SETOFF.
To the
extent permitted by applicable law, Lender reserves a right of setoff in all
Borrower’s accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Borrower holds jointly with someone else
and all accounts Borrower may open in the future. However, this does not include
any XXX or Xxxxx accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the Indebtedness against
any and all such accounts, and, at Lender’s option, to administratively freeze
all such accounts to allow Lender to protect Lender’s charge and setoff rights
provided in this paragraph.
DEFAULT.
Each of
the following shall constitute an Event of Default under this
Agreement:
Payment
Default.
Borrower
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 Borrower’s existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part of Borrower’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 Borrower’s accounts, including deposit
accounts, with Lender. However, this event of Default shall not apply if there
is a good faith dispute by Borrower as to the validity or reasonableness of
the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture proceeding
and deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as being
an adequate reserve or bond for the dispute.
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.
In the event of a death, Lender, at its option, may, but shall not be required
to, permit the Guarantor’s estate to assume unconditionally the obligations
arising under the guaranty in a manner satisfactory to Lender, and, in doing
so,
cure any Event of Default.
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 Lender
believes the prospect of payment or performance of the Loan is
impaired.
Insecurity.
Lender
in good faith believes itself insecure.
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 Lender
to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Borrower or of any Grantor shall not affect Lender’s right to declare a default
and to exercise its rights and remedies.
MISCELLANEOUS
PROVISIONS.
The
following miscellaneous provisions are a part of this Agreement:
Amendments.
This
Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement shall be effective
unless given in writing and signed by the party or parties sought to be charged
or bound by the alteration or amendment.
Attorneys’
Fees; Expenses.
Borrower
agrees to pay upon demand all of Lender’s costs and expenses, including Lender’s
attorneys’ fees and Lender’s legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may hire or pay someone else to help
enforce this Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender’s attorneys’ fees and legal
expenses whether or not there is a lawsuit, including attorneys’ fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate
any
automatic stay or injunction), and appeals. 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.
Borrower
agrees and consents to Lender’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. Borrower also agrees that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the sale
of
such participation interests. Borrower further waives all rights of offset
or
counterclaim that it may have now or later against Lender or against any
purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower’s obligation under the Loan
irrespective of the failure or insolvency of any holder of any interest in
the
Loan. Borrower further agrees that the purchaser of any such participation
interests may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
Governing
Law. This Agreement will be governed by federal law applicable to Lender, and
to
the extent not preempted by federal law, the laws of the State of Missouri
without regard to its conflict of law provisions. This Agreement has been
accepted by Lender in the State of Missouri.
Choice
of Venue.
If there
is a lawsuit, Borrower agrees upon Lender’s request to submit to the
jurisdiction of the courts of Xxxxxxx County, State of Missouri.
Joint
and Several Liability.
All
obligations of Borrower under this agreement shall be joint and several, and
all
references to Borrower shall mean each and every Borrower. This means that
Borrower signing below is responsible for all obligations in this Agreement.
Where any one or more of the parties is a corporation, partnership, limited
liability company or similar entity, it is not necessary for Lender to inquire
into the power of any of the officers, directors, partners, members, or other
agents acting or purporting to act on the entity’s behalf, and any obligations
made or created in reliance upon the professed exercise of such powers shall
be
guaranteed under this Agreement.
No
Waiver by Lender.
Lender
shall not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing and signed by Lender. No delay or omission on the
part of Lender in exercising any right shall operate as a waiver of such right
or any other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender’s right otherwise to demand
strict compliance with that provision or any other provision of this Agreement.
No prior waiver by Lender, nor any course of dealing between Lender and
Borrower, or between Lender and any Grantor, shall constitute a waiver of any
of
Lender’s rights or of any of Borrower’s or any Grantor’s obligations as to any
future transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
Notices.
Any
notice required to be given under this Agreement shall be given in writing,
and
shall be effective when actually delivered, when actually received by
telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the
United States mail, as first class, certified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Agreement.
Any party may change its address for notices under this Agreement by giving
formal written notice to the other parties, specifying that the purpose of
the
notice is to change the party’s address. For notice purposes, Borrower agrees to
keep Lender informed at all times of Borrower’s current address. Unless
otherwise provided or required by law, if there is more than one Borrower,
any
notice given by Lender to any Borrower is deemed to be notice given to all
Borrowers.
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.
Borrower
understands and agrees that in extending Loan Advances, Lender is relying on
all
representations, warranties, and covenants made by Borrower in this Agreement
or
in any certificate or other instrument delivered by Borrower to Lender under
this Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties and
covenants will survive the 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 Borrower’s Indebtedness shall be paid
in full, or until this Agreement shall be terminated in the manner provided
above, whichever is the last to occur.
Time
is of the Essence.
Time is
of the essence in the performance of this Agreement.
DEFINITIONS.
The
following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United
States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Agreement shall have the meanings
attributed to such terms in the Uniform Commercial Code. Accounting words and
terms not otherwise defined in this Agreement shall have the meanings assigned
to them in accordance with generally accepted accounting principles as in effect
on the date of this Agreement:
Advance.
The word
“Advance” means a disbursement of Loan funds made, or to be made, to Borrower or
on Borrower’s behalf on a line of credit or multiple advance basis under the
terms and conditions of this Agreement.
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 American Trailer & Storage, Inc. and includes all
co-signers and co-makers signing the Note.
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.
Lender.
The word
“Lender” means BANK OF THE WEST, 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 AT&S Holdings, Inc.; and American Trailer
& Storage, Inc. in the principal amount of $584,771.00 dated March 28, 2006,
together with all renewals of, extensions of, modifications of, refinancings
of,
consolidations of, and substitutions for the note or credit
agreement.
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.
ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT
ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER(S) AND US (LENDER) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
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.
BORROWER
ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT
AND
BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED MARCH 28,
2006.
BORROWER:
AT&S
HOLDINGS, INC.
By:
//S// By:___________//S//________________________
Xxxxxxx
X. Xxxxx, Chairman of AT&S Holdings, Inc.
Xxxxxxx
X. Xxxxx, XX, President of AT&S Holdings, Inc,
AMERICAN
TRAILER & STORAGE, INC.
By:
//S// By:_____________//S//_______________________
Xxxxxxx
X. Xxxxx, Chairman of American Trailer &
Xxxxxxx
X. Xxxxx, XX, President of
Storage,
Inc.
American
Trailer & Storage, Inc.
LENDER:
BANK
OF
THE WEST
By:
//S//
Xxxx
Xxxxx, Loan Officer
