LOAN AGREEMENT
for a Loan from
First Savings Bank, FSB
1. DATE AND PARTIES. The date of this Loan Agreement (Agreement) is . 04125/00
and the Part are the following:
BORROWER: UNITED HERITAGE
CORPORATE 0 XXXXX XXXX
XXXXXXXX, XX 00000
BANK: First Savings Bank, FSB
a TEXAS banking corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xx 00000
2. BACKGROUND. Borrower has applied for a REVOLVING LINE OF CREDIT (Loan) in the
principal amount of S 962,000.000.00 The Loan shall be evidenced by a promissory
note. 38728 . (Note) dated04125/00 . and executed by Borrower payable to the
order of Bank and all extensions, renewals, modifications, or substitutions
thereof. There may be other documents (Related Documents) that secure, guaranty
or otherwise relate to the Loan, any collateral securing the Loan (Collateral).
or this Agreement. To induce Bank to make the Loan and as part of the
consideration for Bank making the Lose. Borrower and Bank agree m the following
terms. representations. warranties and covenants, which shall prevail so long as
any part of the Loan or any other obligation of Borrower to Bank remains
outstanding or Bank is obligated m make any advances on the Loan.
3. ADVANCES ON LOAN. The Loan is to be made in one or more advances to Borrower
on or before 04/25/01 . At no time shall the outstanding principal balance of
the Loan exceed S 962.000,000.00 . Borrower authorises Bank m honor any written
request for an advance on the Loan from Borrower or from any one of the
following persons: XXXXXX XXXX
Bank may, in in sole di=e= and without liability of any kind. honor any oral
request made by Borrower for an advance on the Loan. Such request cotutituta a
warranty by Borrower that the request is in compliance with this Agreement. the
Note and all Related Docatmeata. The written request shall be made on documents
normally requited by Bank and shall be accompanied by ALL documents normally
required by Bank for the particular type of Loan made to Borrower. Bank's
records shall be conclusive evidence as in the amount of advances, unpaid
principal balances and the seemed' tioetat on the Loan. A check or outer charge
presented against this account in excess of the balance may be treated by Bank.
at its option. as a request for an advance under this Agreement. Any payment by
Bank of any such check or other charge may. at its option. constitute an advance
on the Loan m Borrower. Bank shall have m duty to make any advance except a
expressly stated in the Note.
4. DEPOSITORY RELATIONSHIP. Borrower shall maintain a primary checking, savings,
or similar account. at Bank during the term of this Agreement and any extensions
therein. Back shall have the right, in its sole discretion, n dishonor chain
drawn on such deposit account and to hold such deposit account as cash ..
collateral to secure the payment of the I:oan. Notwithstanding the foregoing.
nothing contained herein shall interfere with Bank's right under statutory and
common law to set-off the balances of any such deposit account against the loan.
5. COLLECTION EXPENSES. Borrower shall, upondemand. reimburse Bank for all fees
and expenses paid or incurred by Bank for the preparation and recordation of all
documentation. the closing, and the enforcement of the Note. this Agreement or
the Related Documents. whether or not a suit is filed. These fees and expenses
include. but are not limited m. accountants' fees and other professional fees.
AB such fees and expenses shall be additional liabilities of Borrower to Bank as
advances under the loan and shall be secured by the Collateral securing the
loan.
6. ATTORNEYS' FEES. Upon demand and to the extent not prohibited by law.
Borrower shall reimburse Bank for all reasonable attorneys' fees paid or
incurred by Bank in comsection with the preparation and meordation of all
documrondoa closing. and enforcement of the Note. this Agreement or the Related
Documents. WHETHER or not a suit is filed. Such reasonable attomeys' fees shall
be additional liabilities of Borrower so Bank as advances under the Loan and
shall be secured by the Collateral securing the loon.
7. LOAN ORIGINATION FEE. At the time of execution of the Note. Borrower shall
pay a non-refundable fee of S 0.00 as worigmation fee for the Loan. S.
AFFIRMATIVE COVENANTS. Borrower agrees:
A. PERFORMANCE OF LOAN OBLIGATIONS. To make full and timely payment of
all principal and imerest obligations, and to comply with the terms
and covenants contained in this Agreement and in the Related
Document.
B. PRESERVE EXISTENCE. To preserve Borrower's present existence until
such time a Bank consents in writing to any change. Bank's consent
to any such change will not be unreasonably withheld provided Bank
can pro&= Bank's security interest and provided further Borrower can
provide Bank with sufficient security to assure repayment of the
Loan.
C. LOSS OR DEPRECIATION OF COLLATERAL. To immediately notify Bank of
any material casualty, loss or depreciation to the Collateral or to
any other property of Borrower which affects Borrower's business.
D. LIFE INSURANCE. To maintain all life insurance policies &sniped to
Bank as Collateral.
E. AGING REPORTS. To furnish Bank a certified and detailed accounts
receivable aging report upon Bank's request, and in event of no
request at least quarterly, in such form and for such periods) a
Bank may request.
F. INSPECTION. To permit Bank, or its agent. to enter upon any of
Borrower's premises and any location where the Collateral u located
at all reasonable draw for the following purposes. without
limitation: (i) m inspect. audit, check, review and obtain copies
from Borrower's books, records. journals. orders. receipts. and any
correspondence and other bosom= related data: (ii) m make
verifications concerning the Collateral, roceeds of the Collateral
and proceeds of proceeds and their use and disposition: and (iii) to
discus the affairs, finances and business of Borrower with any
person or entity who claim to be a creditor of Borrower.
G. BOOKS AND RECORDS. To mantain accurate and complete books and
records regarding its operations and to permit Bank, or its agents,
to examine and copy all or any part of them.
H. FINANCIAL STATEMENTS. To promptly provide Bank with all fkDAWW
stattmentS WHICH Bank may request concerning the Borrower and all
Guarantors. initially and from time m time, within 30 days of the
request(s), or if no request is made, at lent every 12 months from
the dare of this Agreement. including business and personal
financial statements. such statements shall be reasonably current.
accurate. complete, in a form acceptable to Bank and shall be based
on generally accepted accounting principles (GAAP) then in effect.
I. FURNISH DOCUMENTS. To promptly fumiah Bank such other document,
insnumeno and information a Bank may reasonably request.
J. TAXES AND LIENS. To file all Federal. State and other tax and
sunilar remms and pay all taxes or liens assessed against Borrower
or Borrower's properties. whether due now or hereafter, including
but not limited m sales taxes, use taxes, personal property taxes,
documentary stamp taxes, recordation taxes, franchise taxes, income
taxes. withholding taxes, FICA taxes and unemployment taxes when
due, and to promptly fumuh Bank with written evidence of such
payments.
K. LICENSES. PERMITS, BONDS AND OTHER RIGHTS. To acquire and maintain
in full force and effect all licenses, permits, bonds and other
documents or certificates reasonably necessary or required to engage
in and to carry on its business or venture a contemplated by
Borrower and Bank.
L. NOTICE TO BANK BY BORROWER. To promptly notify Bank of the
occurrence of any Event of Default under the terms of this Agreement
and of the occurrence of any default against Borrower by third panes
which materially affects Borrower's business
M. CERTIFICATION OF NO DEFAULT. To furnish Bank a written certification
upon Bank's request. or in event of no request at least quarterly,
that there exists no Event of Default under the terms of this
Agreement or under the Related Documents. and that there exists no
other action, condition or event which with the giving of notice or
lapse of time or both would constitute an Event of Default. If such
a condition does exist, the certificate must accurately and fully
disclose the extent and wave of such condition and state what action
u being taken to correct and proper repairs. renewals. replacements.
additions.
N. 7F DN, =: -: r:a:matu, preserve and keep Borrower's properE good
repair. working order and condition, and from :o tin:- :: =take v:
nexif0 benerments and improvements themay so that tht - '"cutxoo of
the properces s fully preserved and maintained at all times. .
0. INSURANCE. To keep and tiuinmn the Collateral insured in full with
companies acceptable to Bank, taming Bank and Borrower on the policy
in accordance with their respective INTERESTs, with the loss payable
to Bank. Insurance of the types and in amounts summarily carried by
entities in husk== similar to Borrower's shall be maintained for the
full insurable value, including without limitation, fire, public
liability, property damage. business interruption. rein low
insurance. and worker's compensation insurance. Certified copies of
all such insurance policies or certificates of insurance shall be
delivered upon demand to Bank.
P. ADDITIONAL AFFIRMATIVE COVENANTS. ANNUAL AUDITED STATEMENTS REQUIRED
9. NEGATIVE COVENANTS. Without Bank's prior written conmnt, which
shall not be unreasonably withheld. Borrow agrees:
A. NO CHANGE IN STRUCTURE. Not in change the structure or
ownership of Borrower's entity or business venture,
which includes a change in the mamagement shareholders,
directors. or officers of any corporate borrower and to
notify Bank in writing of any change in name or
management of Borrower.
B. NOT TO FORM. Not to form. organize or participate in the
organization of any other corporation. partnership or
other entity, or in the creation of any other business
entity or merge, consolidate with or into any other
corporation. partnership or other entity.
C. PAY NO DIVIDENDS. Not to pay or declare any dividends
(including but not limited to any trash dividend or
stock dividend) or similar distribution.
D. NO CHANGE IN CAPITAL STRUCTURE OR STOCK. Not to release.
redeem, retire. purchase or otherwise acquire, directly
or indirectly. any of its capital stock or other equity
security or partnership mmmat or make any change in
Borrower's capital structure except to the extent
required by the terms of any agreements signed prior to
this Agreement.
E. DEALINGS WITH INSIDERS. Not to purchase, acquire or
lease any property or services from. or sell. provide or
lease any property or service to. or otherwise deal
with, any insiders. The term 'insiders' includes but is
wit limited to any officer. employee, stockholder.
director. partner. or any immediate family member
thereof. or any business entity who owns a controlling
in== in Borrower.
F. LOANS TO INSIDERS. Not to lend or advance or permit to
be outstanding any loans or advances to any of in
'insiders' which tam is defined above.
G. INCUR NO OTHER LIABILITIES. Not to maur, assume or
otherwise permit any liability to exist for money
borrowed, except from Bank. or in=. assume or otherwise
permit any other debts or obligations outside of the
ordinary course of business, or loan money to,.or
guaranty or otherwise become in any way liable for the
debt or obligations of any other person or entity. H.
USE OF LOAN PROCEEDS. Not to permit the (own proceeds to
be used to purchase. carry, reduce. or retire any loan
incurred m purchase or carry any margin stock. I.
DISPOSE OF NO ASSETS. Not to sell or dispose of or make
any other distribution of any of Borrower's assets,
properties or business other than as permuted in the
Related Documents. 1. NO OTHER LIENS OR ENCUMBRANCES.
Not to permit or suffer any Lien or encumbrance upon any
of Borrower's properties, except to Bank. .. and except
for any valid purchase money security inseresis. or any
other liens specifically agreed to by Bank in writing.
10. REPRESENTATIONS. Borrower represents. guaranties and warrants
to Bank that:
A. AUTHORITY TO DO BUSINESS. Borrower is authorized to do
business in this stare and in each state where it may be
doing business and has full power aW authority to
execute and deliver die Note and enter into this
Agreement and the Related Documents.
B. CORPORATE STATUS. Borrower is duly incorporated and
validly existing and in good standing in the
jurisdiction of Borrower's incorporation and where
Borrower conducts Borrower's business.
C. AUTHORITY TO ENTER AGREEMENTS. This Agreement. the Note.
and the Related Documents will constitute legal. valid,
and binding agreements and are enforceable against
Borrower and all other parties therein.
D. TfrLE AND POSSESSION. Borrower has good and marketable
title to its assets. and enjoys peaceful and undisturbed
possession under all leases tinder which Borrower now
operates.
E. LABOR LAWS. Borrower is complying with all applicable
federal or state labor laws, including but not limited
to the Federal Fair Labor Standards Act.
F. TAX LAWS. Borrower has complied with all federal, state
and local tax laws and permit laws.
G. OTHER LAWS. Borrower u not in violation of other federal
laws or state laws, including but not limited to. ERISA
(Employee Retirement Income Security Act) or RICO
(Rack,taa Influeaeed and Corrupt Organizations).
H. COMPLIANCE. Borrower is in compliance with all laws,
orders, judgements. decrees and regulations (Laws) of
all federal, foreign, sine and local governmental
authorities relating to the business operations wed the
assets of Borrower. the violation of which would have an
adverse effect on the value of or Bank's imemat in any
of the Collateral or would have a materially adverse
effect on Borrower's financial condition. business or
conduct of its business.
I. ADVERSE AGREEMENTS. Borrower is no a party to, not is
Borrower bound by. any agreement that materially or
adversely affects Borrower's bumess. properties, assets
or operations.
1. OTHER CLAIMS. There arc no outstanding claims or rights that
would conflict with the execution. delivery or performance by
Borrower of the terms of the Note, this Agreement or the
Related Documents or that would cause a hen to be placed on
the Collateral given for this Loco. including proceeds of the
Collateral and proceeds of proceeds, except those. if any,
disclosed to and agreed to by Bank in writing prior to the
execution of this Agreement.
K. ACCURATE STATEMENTS. All financial statements. books,
records. documents. and instruments submitted by
Borrower to Bank in connection with the Loan are actuate
and complete, and there has been to material adverse
change in the financial condition of Borrower as shown
by such statements. books. records, documents or
instruments.
L. SOLVENCY. Borrower u solvent, able to pay its debts as
they minim, and has sufficient capital to carry on its
business and all businesses in which Borrower is or will
be engaged. Borrower's total assets. at a present. fair
market value. are greater than the amount of Borrower's
total obligations. Borrower will not be rendered
insolvent by the execution of the Note, this Agreement
or Related Documents or by any other transactions.
M. LITIGATION. There are no proceedings pending or
threatened before any court or administrative agency
which will or could have a materially adverse affect
upon the financial condition or operations of Borrower.
N. SURVIVAL OF WARRANTIES. All represemunom, warranties,
statements, guaranties and covenants contained in the
Note. this Agreement or any Related Documents shall
survive the execution of such documents.
0. ADDITIONAL REPRESENTATIONS.
11. EVENTS OF DEFAULT. Borrower shad be to a . : upon the
occurrence of any of the following events.;. .asnnces or
conditions (Events of Default):
A Failure by any party obligated on the Loan to make
payment when due: or
B. A default or breach by Borrower, Owner or any co-signer,
endorser. surety. or guarantor under any of the terms of
this Agreement. the Note. any construction loan
agreement or other loan agreement, any security
agreement. mortgage. deed m secure debt. deed of aunt.
trust deed. or any other document or instrument
evidencing, guarantying, se=eing or otherwise relating
to the Loan: or
C. The making or furnishing of any verbal or writen
representation. statement or warranty to Bank which is
or becomes false or incorrect in any material respect by
or on behalf of Borrorowei. owner, or any co-signer.
endorser. surety or guarantor of the Loan. or
D. Failure to obtain or maintain the mmrance coverages
required by Bank. or insurance as is customary and
proper for the Collateral (as herein defined): or
E. The death. dissolution or insolvency of. the appointment
of a receiver by or on behalf of. the assignment for the
benefit of creditors by or on behalf of, the voluntary
or involuntary termination of existence by. or by
commencement of any proceeding tinder any present or
future federal or state insolvency. bankruptcy,
reorgamation, composition or debtor relief law by or
against Borrower, owner, or any co-signer, endorser.
surety or guarantor of the Loan. or
F. A good faith belief by Bank at any time that Bank is
insecure with respect Borrower. or any co-signer.
endorser. surety or guarantor. that the prospect of any
payment is impaired or that the Collateral (as herein
defined) is mtpaued: of
G. Fail to pay or provide proof of payment of any tax.
assessment, rent, insurance premium or escrow. escrow
deficiency on or before its due dam: or
H. A material adverse change in Borrower's business,
including ownership, management. and financial
conditions, which in Bank's opinion. impairs the
Collateral or repayment of the Obligations. or
1. A transfer of a substantial part of Borrower's money or
property.
12. REMEDIES ON DEFAULT. Upon the occurrence of any Event of
Default. Back, at its option. may declare the Loan nmmediately
due and payable as well as invoke any or all other remedies
provided in the Note, any Related Document or by law. AB
remedies are cumulative and not exclusive. Bank r also
entitled to all remedies provided at law or equity. whether or
not expressly set forth.
13. NOTICE. All nonees. requests, and demands under this Agreement
shall be given by regular United States mail. postage prepaid,
or personal delivery, at the address set forth above or such
other address as the parties may designate m writing.
14. GENERAL PROVISIONS.
A. TIME IS OF THE ESSENCE. Time is of the essence in
Borrower's performance of all duties and obligations
imposed by this Agreement.
B. NO WAIVER BY BANK. Bank's course of dealing, or Bank's
forbearance from. or delay in. the exercise of any of
Bank's rights. remedies. privileges or right in instat
upon Borrower's atria performance of any provisions
contained m this Agrameat, or other loan documents.
shall not be construed as a waiver by Bank. unless any
such waiver e m writing and is signed by Bank.
C. AMENDMENT. The provisions contained in this Agreement my
not be amended, except through a written amendment which
is signed by Borrower and Balk.
D. FURTHER ASSURANCES. Borrower, upon request of Bank,
agrees to execute. acknowledge, deliver and record or
file such further instruments or documents as my be
required by Bank to secure the Note or confute any Iien.
E. GOVERNING LAW. Ibis Agreement shall be goveraad by the
laws of the State of TEXAS, provided that such laws are
not otherwise preempted by federal laws and regulations.
F. FORUM AND VENUE. In the event of litigation pertaining
to this Agreement, the exclusive forum. venue and place
of jurisdiction shall be in the State of TEXAS. miles:
otherwise designated in writing by Bank or otherwise
required by law.
G. SUCCESSORS. This Agreement shall inure In the benefit of
and bind the bets. perwnd representatives, sutxeswrs and
assigns of the panes: provided however, that Borrower
may not assign, transfer or dekgase my of the rights or
obligations under this Agreement.
H. NUMBER AND GENDER. Whenever used. the singular shall
include the plural. the plural the singular, and the use
of any gender shall be applicable m all genders.
1. DEFINITIONS. The serms used in this Agreement if not
defined bereio, shall have their manmgs as defined in
the other documents executed contemporaneoudy. or in
conjunction. with this Agreement.
J. PARAGRAPH HEADINGS. The hesdings at the beginning of any
pumps* or any subparagraph. in this Agreement an for
convenience only and doll trot be dispositive in
iooesprefing or construing this Agreement.
K. IF HELD UNENFORCEABLE. If my provision of this Agreement
shag be held unmilbreeable or void. then such provision
than be severable from the remaining provisions and
aball in no way affect the enforceability of the
remaining provisions nor the validity of this Agreement.
L. CHANGE IN APPLICATION. Borrower wiB notify Bank m
writing prior to any change in Borrower': name. address.
or other application information.
M. NOTICE. All notices under this Agreement must be in
writing. Any notice given by Back to Borrower hereuoder
will be effective upon persona delivery or 24 hours
after maiimg by that class United States mail. postage
prepaid. addressed to Borrower at the address militated
below Borrower's name on page ons of this Apeement. Any
notice given by Borrower m Bade hereunder will be
effective upon receipt by Bank at the address indicated
below Bank's name on page one of this Agreement. Such
addresses may be changed by written notice to the other
party.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR CONTEMPORANEOUS.
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
The parties' signatures below indicate
agreement with the statements contained within this box.
BORROWER: UNITED HERITAGE CORPORATE
(Corporate Seao)
BY: XXXXXX MIZEI
BANK: First Savings Bank, FSB
By:
By:
By:
(*Corporate Seal be a hot failure to affix shall am affect validity or reliance)
a TEX corporation
(Corporate Seal)
By: XXX IB
VICE PRESIDENT
(*Corporate Seal be a hot failure to affix shall am affect validity or reliance)
