November 21, 2000
IGBAF, INC.
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: X. X. Xxxxxxxxx, President
Dear Xx. Xxxxxxxxx:
Pursuant to our prior discussions, this Letter Loan Agreement will serve to
set forth the terms of the financing agreement by and between IGBAF, INC., a
Texas corporation (the "Borrower") and BANK UNITED (the "Lender"):
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1. LOAN. Subject to the terms and conditions set forth in this Letter
Loan Agreement (the "Loan Agreement") and the other agreements, instruments and
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documents executed and delivered in connection herewith and pursuant hereto
(collectively, together with this Loan Agreement, referred to hereinafter as the
"Loan Documents"), the Lender agrees to lend to the Borrower, and the Borrower
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agrees to borrow from the Lender, the amount of $1,800,000.00 (the "Loan").
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2. PROMISSORY NOTE. The Loan shall be evidenced by a Promissory Note
(herein called, together with any renewals, extensions and increases thereof,
the "Note"), duly executed by the Borrower, dated the date thereof, in the
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original principal amount of the Loan, and in form and substance acceptable to
the Lender. The Loan shall be due and payable in accordance with the terms and
conditions set forth in the Note and in accordance with this Loan Agreement.
3. COLLATERAL. As collateral and security for the Loan, and any and all
other indebtedness or obligations from time to time owing by the Borrower to the
Lender, the Borrower shall grant, or cause the owner thereof to grant, to the
Lender, its successors and assigns, a lien and security interest (which shall be
a first and prior lien and security interest therein), in and to the following
described property, together with any and all products and proceeds thereof (the
"Collateral"):
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Collateral Note. Collateral assignment of Promissory Note dated May 9,
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2000, in the original principal amount of $2,250,000.00, executed by
Hytken's Partnership, Inc., a Texas corporation, payable to the order of
Borrower, together with all renewals, extensions, modifications, or
rearrangements thereof.
4. GUARANTIES. At closing, and as an inducement to the Lender to
execute and deliver this Loan Agreement and to make the Loan to the Borrower,
the Borrower agrees to cause RAMPART CAPITAL CORPORATION, a Texas corporation,
XXXXXXXX'X, INC., a Texas corporation, RAMPART PROPERTIES CORPORATION, a Nevada
corporation, RAMPART FACILITIES CORPORATION, a Texas corporation, SOURCEONE
CAPITAL GROUP, L.L.C., a Nevada limited liability company, RAMPART NEWPORT
CORPORATION, a Texas corporation, IGBF, INC., a Texas corporation, NEWPORT FUND
CORPORATION, an
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Oklahoma corporation, RAMPART VENTURES CORPORATION, L.L.C., a Texas limited
liability company, and RAMPART ACQUISITION CORPORATION, L.L.C., a Texas limited
liability company (collectively, the "Guarantor") to execute and deliver their
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guaranties to the Lender, in form and substance satisfactory to the Lender
(collectively, the "Guaranty Agreement").
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5. COLLATERAL DOCUMENTS. Prior to or contemporaneously with the
closing of the Loan, Borrower shall deliver, or cause to be delivered, to the
Lender, in addition to the Note, the following agreements, documents and
instruments (sometimes collectively referred to hereinafter as the "Collateral
---------
Documents"):
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(a) A Collateral Assignment of Note and Liens in the form required
by the Lender.
(b) Resolutions of the Borrower and Guarantors, in the form
required by the Lender authorizing the Borrower and Guarantors to enter
into the transactions contemplated under this Loan Agreement and the other
Loan Documents.
(c) A Guaranty Agreement, in the form required by the Lender,
guaranteeing the payment and performance of the Note and any other
indebtedness and obligations from time to time owing by the Borrower to the
Lender, executed by each Guarantor.
(d) Such other agreements, instruments, documents and certificates
as may be requested by the Lender to evidence the Loan and to grant and
perfect a lien and security interest in the Collateral.
6. REPRESENTATIONS AND WARRANTIES. The Borrower, and each Guarantor to
the extent that the stated action or information specifically relates to the
Guarantor, hereby represents and warrants, as follows:
(a) Existence. The Borrower and each Guarantor are duly organized,
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validly existing, and in good standing under the laws of the State in which
they were formed, and all other states where it is doing business, and has
all requisite power and authority to execute and deliver this Loan
Agreement and the other Loan Documents.
(b) Authorization. The execution, delivery, and performance of
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this Loan Agreement and all of the other Loan Documents have been duly
authorized, and constitute the legal, valid and binding obligations,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency or similar laws of general application relating to
the enforcement of creditors' rights and except to the extent specific
remedies may generally be limited by equitable principles.
(c) Authority. The execution, delivery and performance of this
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Loan Agreement and the other Loan Documents, and the consummation of the
transactions contemplated hereby and thereby, do not conflict with, result
in a violation of, or constitute a default under (i) any provision of the
Borrower's or any of the Guarantor's formation documents, or any other
agreement or instrument, or (ii) any law, governmental regulation, court
decree, or order applicable to the Borrower or any of the Guarantors, or
require the consent, approval or authorization of any third party.
(d) Financial Condition. Each financial statement supplied to the
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Lender was prepared in accordance with generally accepted accounting
principles, consistently applied, in effect on the date such statements
were prepared and truly discloses and fairly presents the financial
condition as of the date of each such statement, and there has been no
material
2
adverse change in such financial condition or results of operations
subsequent to the date of the most recent financial statement supplied to
the Lender.
(e) Litigation. There are no actions, suits or proceedings pending
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or, to the knowledge of the Borrower, threatened against or affecting the
Borrower, before any court or governmental department, commission or board,
which, if determined adversely to the Borrower, (i) would subject the
Borrower to any liability not fully covered by insurance, or (ii) would
have a material adverse effect on the financial condition, properties, or
operations of the Borrower, or its ability to perform its obligations under
this Loan Agreement.
(f) Tax Returns. The Borrower and each Guarantor has filed all
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federal, state and local tax reports and returns, if any, required by any
law or regulation to be filed by it and has either duly paid all taxes,
duties and charges, if any, indicated due on the basis of such returns and
reports, except those being contested in good faith by appropriate
proceeding, or made adequate provision for the payment thereof, and the
assessment of any material amount of additional taxes in excess of those
paid and reported is not reasonably expected.
(g) No Material Changes. There is no fact known that has not been
--------------------
disclosed to the Lender in writing which may result in any material adverse
change in the Borrower's business, properties or operations. No certificate
or statement herewith or heretofore delivered to the Lender in connection
herewith, or in connection with any transaction contemplated hereby,
contains any untrue statement of a material fact or fails to state any
material fact necessary to keep the statements contained therein from being
misleading.
(h) Ownership of Assets. The Borrower and each Guarantor own all
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of the assets reflected on their most recent balance sheet free and clear
of all liens, security interests or other encumbrances, except as
previously disclosed in writing to the Lender.
(i) Governmental Authority. The Borrower and each Guarantor, (i)
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is not in violation of any law, judgment, decree, order, ordinance, or
governmental rule or regulation, or (ii) has not failed to obtain any
license, permit, franchise or other governmental authorization necessary to
the ownership of any assets or properties or the conduct of business.
(j) Principal Office. The principal office of Borrower and each
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Guarantor, as well as the place at which the Borrower and each Guarantor
keeps its books and records, is the address set forth above.
7. CONDITIONS PRECEDENT TO THE LOAN. Any obligation of the Lender to
make the Loan shall be subject to the complete and continuing satisfaction, on
or before the date hereof, of the following conditions precedent:
(a) Loan Documents. The Borrower, each Guarantor and any other
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person or entity required to do so shall have executed and delivered to the
Lender the Loan Documents to which they are a party and any and all other
documents reasonably required or requested by the Lender to give effect to
the transactions contemplated by this Loan Agreement, all in form and
substance satisfactory to the Lender and its counsel.
(b) Legal Opinion. The Lender shall have received the opinion, in
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form and substance satisfactory to it, of counsel to the Borrower and
Guarantor, which counsel shall be satisfactory to the Lender, certifying
that all subsidiaries of RAMPART CAPITAL CORPORATION have joined in this
transaction.
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(c) Additional Agreements. The Lender shall have received such
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other agreements, instruments, documents and certificates incidental and
appropriate to the transaction provided for herein as the Lender or its
counsel may reasonably request.
8. AFFIRMATIVE COVENANTS. Until the Loan and all other obligations and
liabilities of the Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, the Borrower, and each Guarantor to the
extent that the stated action or information specifically relates to the
Guarantor, agrees and covenants that it will, unless the Lender shall otherwise
consent in writing:
(a) Accounts and Records. Maintain its books and records in
----------------------
accordance with generally accepted accounting principles, applied on a
consistent basis, and permit the Lender to examine, audit, make and take
away copies or reproductions of the Borrower's and Guarantor's books and
records, at all reasonable times.
(b) Right to Additional Information. Furnish Lender with such
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additional information and statements, lists of assets and liabilities, tax
returns, and other reports with respect to Borrower's and Guarantor's
financial condition and business operations as Lender may request from time
to time.
(c) Payments of Obligations. Pay and discharge when due all of its
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indebtedness and obligations, including without limitation, all
assessments, taxes, governmental charges, levies and liens, of every kind
and nature, imposed upon the Borrower or Guarantors, 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 the Borrower's or Guarantor's
properties, income, or profits; provided, however, the Borrower or
Guarantor will not be required to pay and discharge any such assessment,
tax charge, xxxx, xxxx or claim as long as (i) the legality of the same
shall be contested in good faith by appropriate judicial, administrative or
other legal proceedings, and (ii) the Borrower or Guarantor shall have
established on its books adequate reserves with respect to such contested
assessment, tax, charge, xxxx, xxxx or claim in accordance with generally
accepted accounting principles, consistently applied.
(d) Compliance with laws. Conduct its business in an orderly and
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efficient manner consistent with good business practices, and perform and
comply with all statutes, rules, regulations and/or ordinances imposed by
any governmental unit upon the Borrower and its businesses and operations.
(e) Cure of Defect. Promptly cure any defects in the execution and
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delivery of any of the other Loan Documents and all other instruments
executed in connection with this transaction.
(f) Additional Documentation. Execute and deliver, or cause to be
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executed and delivered, any and all other agreements, instruments or
documents which the Lender may reasonably request in order to give effect
to the transactions contemplated under this Loan Agreement and the other
Loan Documents.
(g) Existence. Do or cause to be done all things necessary to
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preserve and keep in full force and effect the Borrower's and each
Guarantor's existence in good standing.
(h) Notice of Matters. Promptly inform Lender of (i) any and all
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material or adverse changes in Borrower's and each Guarantor's financial
condition, (ii) all claims made against Borrower and any Guarantor which
could materially affect the financial condition of Borrower or such
Guarantor, (iii) after the commencement thereof, notify Lender of all
actions, suits and proceedings before any court or any governmental
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department, commission, or board affecting Borrower or any Guarantor, or
any of its properties, and (iv) of the creation, occurrence, or assumption
by Borrower or any Guarantor of any actual or contingent liabilities not
permitted under this Loan Agreement.
9. NEGATIVE COVENANTS. Until the Loan and all other obligations and
liabilities of the Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, the Borrower, and each Guarantor to the
extent that the stated action or information relates to the Guarantor, will not,
without the prior written consent of the Lender:
(a) Nature of Business: Change of Management or Operation. Make
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any material change in the nature of its business as carried on as of the
date hereof, including, but not limited to, any material change in the
management or operation of its business.
(b) Liquidations, Mergers; Consolidations. Liquidate, merge or
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consolidate with or into any other entity.
(c) Sale of Assets. Sell transfer or otherwise dispose of any of
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its assets or properties, other than in the ordinary course of business.
(d) Liens. Create, incur or assume any lien or encumbrance on the
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Collateral.
(e) Indebtedness. Create, incur or assume any indebtedness for
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borrowed money or issue or assume any other note, debenture, bond or other
evidences of indebtedness, or guarantee any such indebtedness or such
evidences of indebtedness of others, except as may otherwise be approved by
Lender, other than (i) borrowing from the Lender, and (ii) borrowing
outstanding on the date hereof and disclosed in writing to the Lender.
10. REPORTING REQUIREMENTS. Until the Loan and all other obligations
and liabilities of the Borrower under this Loan Agreement and the other Loan
Documents are fully paid and satisfied, the Borrower, and each Guarantor to the
extent that the stated action or information relates to the Guarantor, will,
unless the Lender shall otherwise consent in writing, furnish to the
Lender:
(a) Events of Default. As soon as possible and in any event within
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five (5) days after the occurrence of each Event of Default, as defined
herein, or each event which, with the giving of notice or lapse of time, or
both, would constitute an Event of Default, the statement of the President
or the Chief Financial Officer of the Borrower setting forth the details of
such Event of Default or event and the action which the Borrower proposes
to take with respect thereto.
(b) Quarterly. As soon as available and in any event on or before
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the due dates for the 10Q quarterly report filed by Rampart Capital
Corporation with the Securities and Exchange Commission ("SEC"), the
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audited quarterly financial statement of Rampart Capital Corporation.
(c) Annual. As soon as available and in any event on or before the
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due dates for the 10K annual report filed by Rampart Capital Corporation
with the SEC, the audited annual financial statement of Rampart Capital
Corporation.
(d) Governmental Action. Promptly after the commencement thereof,
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notice of all actions, suits and proceedings before any court or any
governmental department, commission or board affecting the Borrower or any
of the Guarantors.
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(e) Evidence of Payment of Obligations. Upon demand of the Lender,
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evidence of payment of all assessments, taxes, charges, levies, liens and
claims against the Borrower or any of the Guarantors, which authorize the
appropriate governmental official to deliver to the Lender at any time a
written statement of any assessments, taxes, charges, levies, liens and
claims against Borrower or any of the Guarantors.
All references to a preceding period shall mean the period ending as of the
end of the month, quarter or fiscal year for which the applicable report is
delivered. All references to a period immediately following shall mean the
period beginning on the first day of the month, quarter or fiscal year following
the end of the period for which the applicable report is delivered. All
financial reports furnished to the Lender pursuant to this Loan Agreement shall
be prepared in such form and such detail as shall be satisfactory to the Lender,
shall be prepared on the same basis as those prepared in prior years.
11. EVENTS OF DEFAULT. Each of the following shall constitute an "Event
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of Default" under this Loan Agreement:
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(a) Any default in the payment when due of any part of the
principal of, or interest on, the Note or any other indebtedness or
obligation from time to time owing by the Borrower to the Lender, which is
not cured within five (5) days after the Lender gives the Borrower written
notice thereof.
(b) Any default, breach, or failure in the performance of any
term, condition, warranty, agreement, or covenant of this Loan Agreement or
any of the other Loan Documents, which is not cured within thirty (30) days
after the Lender gives the Borrower written notice thereof; provided,
however, if such Event of Default cannot be cured within such thirty (30)
day period, Borrower shall advise Lender of all actions being taken by
Borrower and the Borrower shall not be in default hereunder unless the
Borrower fails to commence promptly to cure such default and proceed to
cure the same within a period of time approved by Lender but in no event
less than thirty (30) days.
(c) Any representation or warranty set forth in this Loan
Agreement or in any of the other Loan Documents proves to have been false
or untrue in any material respect when made.
(d) If Borrower or any Obligated Party (as defined below): (i)
becomes insolvent, or makes a transfer in fraud of creditors, or makes an
assignment for the benefit of creditors, or admits in writing its inability
to pay its debts as they become due; (ii) generally is not paying its debts
as such debts become due; (iii) has a receiver, trustee or custodian
appointed for, or take possession of, all or substantially all of the
assets of such party, either in a proceeding brought by such party or in a
proceeding brought against such party and such appointment is not
discharged or such possession is not terminated within sixty (60) days
after the effective date thereof or such party consents to or acquiesces in
such appointment or possession; (iv) files a petition for relief under the
United States Bankruptcy Code or any other present or future federal or
state insolvency, bankruptcy or similar laws (all of the foregoing
hereinafter collectively called "Applicable Bankruptcy Law") or an
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involuntary petition for relief is filed against such party under any
Applicable Bankruptcy Law and such involuntary petition is not dismissed
within sixty (60) days after the filing thereof, or an order for relief
naming such party is entered under any Applicable Bankruptcy Law, or any
composition, rearrangement, extension, reorganization or other relief of
debtors now or hereafter existing is requested or consented to by such
party; (v) fails to have discharged within a period of thirty (30) days any
attachment, sequestration or similar writ levied upon any property of such
party; or (vi) fails to pay within thirty (30) days any final money
judgment against such party.
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(e) The liquidation, dissolution, merger, or consolidation of the
Borrower or any Obligated Party.
Nothing contained in this Loan Agreement shall be construed to limit the Events
of Default enumerated in any of the other Loan Documents or any other document
executed in connection with the Loan and all such Events of Default shall be
cumulative. The term "Obligated Party" as used herein, shall mean any party
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other than Borrower who secures, guaranties, and/or is otherwise obligated to
all or any portion of the indebtedness evidenced by the Note.
12. REMEDIES. Upon the occurrence of any one or more of the foregoing
Events of Default, the entire unpaid balance of principal of the Notes, together
with all accrued but unpaid interest thereon, and all other indebtedness then
owing by the Borrower to the Lender, shall, at the option of the Lender, become
immediately due and payable without further presentation, demand for payment,
notice of intent to accelerate, notice of acceleration or dishonor, protest or
notice of protest of any kind, all of which are expressly waived by the
Borrower. All rights and remedies of the Lender set forth in this Loan Agreement
and in any of the other Loan Documents may also be exercised by the Lender at
its option to be exercised in its sole discretion, upon the occurrence of an
Event of Default.
13. RIGHTS CUMULATIVE. All rights of the Lender under the terms of this
Loan Agreement shall be cumulative of, and in addition to, the rights of the
Lender under any and all other agreements between the Borrower and Lender
(including, but not limited to, the other Loan Documents), and not in
substitution or diminution of any rights now or hereafter held by the Lender
under the terms of any other agreement.
14. WAIVER AND AGREEMENT. Neither the failure nor any delay on the part
of the Lender to exercise any right, power or privilege herein or under any of
the other Loan Documents shall operate as a waiver thereof, nor shall any single
or partial exercise of such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
No waiver of any provision in this Loan Agreement or in any of the other Loan
Documents and no departure by the Borrower therefrom shall be effective unless
the same shall be in writing and signed by the Lender, and then shall be
effective only in the specific instance and for the purpose for which given and
to the extent specified in such writing. No modification or amendment to this
Loan Agreement or to any of the other Loan Documents shall be valid or effective
unless the same is signed by the party against whom it is sought to be enforced.
15. MAXIMUM INTEREST RATE. Regardless of any provision contained in
this Loan Agreement, any of the other Loan Documents, or any other document or
instrument executed pursuant hereto or thereto, the Lender shall never be
entitled to receive, collect, charge or apply, as interest on the Loan
contemplated hereunder, any amount in excess of the highest lawful rate, and, in
the event the Lender ever receives, collects, charges or applies as interest,
any such excess, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated hereunder as such; and, if the
principal debt of the Loan is paid in full, any remaining excess shall forthwith
be paid to the Borrower. In determining whether or not the interest paid or
payable under any specific contingency exceeds the highest lawful rate, Borrower
and the Lender shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee, or premium rather
than as interest, (ii) exclude voluntary prepayments and the effects thereof,
and (iii) amortize, prorate, allocate, and spread, in equal parts, the total
amount of interest throughout the entire contemplated term of the Loan so that
the interest rate is uniform throughout the entire term of the Loan; provided,
that if the Loan is paid and performed in full prior to the end of the full
contemplated term thereof, and if the interest received for the actual period of
existence thereof exceeds the highest lawful rate, the Lender shall refund to
the Borrower or credit against the principal debt of the Loan the amount of such
excess and, in such event, the Lender shall not be subject to any penalties
provided by any
7
laws for contracting for, charging, taking, reserving, or receiving interest in
excess of the highest lawful rate.
16. NOTICES. Except as otherwise provided herein, all notices, demands,
requests, and other communications required or permitted hereunder shall be
given in writing and sent by (i) personal delivery, or (ii) expedited delivery
service with proof of delivery, or (iii) United States mail, postage prepaid,
registered or certified mail, return receipt requested, or (iv) facsimile
(provided that such facsimile is confirmed by expedited delivery service or by
United States mail in the manner previously described), addressed to the
addressee at such party's address contained in the Loan Documents, or to such
other address as either party shall have designated by written notice, sent in
accordance with this paragraph at least ten (10) days prior to the date of the
giving of such notice. Any such notice or communication shall be deemed to have
been given and received either at the time of personal delivery, or in the case
of mail, as of the date of deposit in an official depository of the United
States mail, or in the case of either delivery service or facsimile, upon
receipt. To the extent actual receipt is required, rejection or other refusal to
accept or the inability to deliver because of changed address of which no notice
was received shall be deemed to be receipt of the notice, demand, request or
other communication sent.
17. CONSTRUCTION. This Loan Agreement and the other Loan Documents have
been executed and delivered in the State of Texas, shall be governed by and
construed in accordance with the laws of the State of Texas, and shall be
performable by the parties hereto in Houston, Xxxxxx County, Texas.
18. CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION.
Any suit, action or proceeding against the Borrower with respect to this Loan
Agreement, the Note or any judgment entered by any court in respect thereof, may
be brought in the courts of the State of Texas, County of Xxxxxx, or in the
United States courts located in the State of Texas as the Lender in its sole
discretion may elect and the Borrower hereby submits to the non-exclusive
jurisdiction of such courts for the purpose of any such suit, action or
proceeding. The Borrower hereby irrevocably waives any objections which it may
now or hereafter have to the laying of venue of a suit, action or proceeding
arising out of or relating to this Loan Agreement or any of the Notes brought in
the courts located in the State of Texas, County of Xxxxxx, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum.
19. INVALID PROVISIONS. If any provision of this Loan Agreement or any
of the other Loan Documents is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable and the
remaining provisions of this Loan Agreement or any of the other Loan Documents
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance. Furthermore, in lieu of
each such illegal, invalid or unenforceable provision, there shall be added as
part of such Loan Documents a provision mutually agreeable to the Borrower and
Lender as similar in terms to such illegal, invalid or unenforceable provision
as may be possible and be legal, valid and enforceable. In the event the
Borrower and Lender are unable to agree upon a provision to be added to the Loan
Documents within a period of ten (10) business days after a provision of the
Loan Documents is held to be illegal, invalid or unenforceable, then a provision
acceptable to the Lender as similar in terms to the illegal, invalid and
unenforceable provision as is reasonably possible and be legal, valid and
enforceable shall be added automatically to such Loan Documents. In either case,
the effective date of the added provision shall be the date upon which the prior
provision was held to be illegal, invalid or unenforceable.
20. EXPENSES. The Borrower shall pay all costs and expenses (including,
without limitation, the reasonable attorneys' fees of the Lender's legal
counsel) in connection with (1) the preparation of this Loan Agreement and the
other Loan Documents, and any and all extensions, renewals, amendments,
supplements, extensions or modifications thereof, (ii) any action required
8
in the course of administration of the Loan, and (iii) any action in the
enforcement of the Lender's rights upon the occurrence of Event of Default.
21. BINDING EFFECT. This Loan Agreement shall be binding upon and inure
to the benefit of the Borrower, the Lender and their respective heirs,
successors, assigns and legal representatives; provided however, that the
Borrower may not, without the prior written consent of the Lender, assign any
rights, powers, duties or obligations hereunder.
22. HEADINGS. Section headings are for convenience of reference only
and shall in no way affect the interpretation of this Loan Agreement.
23. SURVIVAL. All representations and warranties made by the Borrower
in this Loan Agreement shall survive delivery of the Note and the making of the
Loan.
24. NO THIRD PARTY BENEFICIARY. The parties do not intend the benefits
of this Loan Agreement to inure to any third party, nor shall this Loan
Agreement be construed to make or render the Lender liable to any materialman,
supplier, contractor, subcontractor, purchaser or lessee of any property owned
by the Borrower, or for debts or claims accruing to any such persons against the
Borrower. Notwithstanding anything contained herein or in the Notes, or in any
other Loan Documents, or any conduct or course of conduct by any or all of the
parties hereto, before or after signing this Loan Agreement or any of the other
Loan Documents, neither this Loan Agreement nor any other Loan Documents shall
be construed as creating any right, claim or cause of action against the Lender,
or any of its officers, directors, agents or employees, in favor of any
materialman, supplier, contractor, subcontractor, purchaser or lessee of any
property owned by the Borrower, nor to any other person or entity other than the
Borrower.
25. COUNTERPARTS. This Loan Agreement may be separately executed in any
number of counterparts, each of which shall be an original, but all of which,
taken together, shall be deemed to constitute one and the same agreement.
26. JURY WAIVER. THE BORROWER, GUARANTOR, AND LENDER HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE BORROWER, GUARANTOR AND LENDER ARISING OUT OF
OR IN ANY WAY RELATED TO THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS. THIS
PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED
HEREIN OR IN THE OTHER LOAN DOCUMENTS.
27. ENTIRE AGREEMENT. THIS 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.
If the foregoing correctly sets forth our mutual agreement, please so
acknowledge by signing and returning the additional copy of this Loan Agreement
enclosed herewith.
BANK UNITED
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Closing Supervisor
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ACCEPTED this 21st day of November, 2000.
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BORROWER:
IGBAF, INC.
By: /s/ X. X. Xxxxxxxxx
-------------------------------------
Name: X. X. Xxxxxxxxx
-------------------------------------
Title: President
----------------------------------
GUARANTOR:
RAMPART CAPITAL CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
XXXXXXXX'X, INC.
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
RAMPART PROPERTIES CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
RAMPART FACILITIES CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
SOURCEONE CAPITAL GROUP, L.L.C.
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
10
RAMPART NEWPORT CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
IGBF, INC.
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
NEWPORT FUND CORPORATION
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
RAMPART VENTURES
CORPORATION, L.L.C.
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
RAMPART ACQUISITION
CORPORATION, L.L.C.
By: /s/ X. X. Xxxxxxxxx
--------------------------------------
Name: X. X. Xxxxxxxxx
------------------------------------
Title: President
-----------------------------------
11
