Loan No
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. Item
above containing """' has been omitted due to text length limitations.
Borrower: THE COEUR D'ALENES COMPANY Lender: Inland Northwest Bank
P.O. BOX 2610 000 X. Xxxxxxxxx Xxx. SPOKANE, WA 99220-2610 Spokane, WA 99201
Principal Amount: $418,464.49 Interest Rate: 9.000%
Date of Agreement: February 28, 2001
DESCRIPTION OF EXISTING INDEBTEDNESS. Equipment loan in the amount of
$300,000 advanced 6/1/2000, payable interest only, monthly during the draw
period of 5 months, then amortized over 55 months, payable $6,841.58 per month,
on the 1st of each month, commencing 12/1/00, with maturity of 6/1/05, with
interest fixed at 10%, based on Wall Street Journal Prime Rate plus .5%. On
9/28/00, the amount of the line was increased to $500,000 and the draw period
extended to 2/16/01, payable interest only, on the 16th of each month commencing
10/16/00; then on 2/16/01, the loan was to amortize over 60 months payable
$10,654.62 per month with maturity of 2/16/06.
DESCRIPTION OF COLLATERAL. Boldrini 2 1/2 x 10 Plate Roll; Sector
ST1100 Burn Machine; Water Table.
DESCRIPTION OF CHANGE IN TERMS. Upon payment of interest to date, the
balance of this equipment line in the amount of $418,405.75 is hereby termed out
over 60 months. payable $8,717.21 per month commencing April 1, 2001,and on The
first day each month, with maturity of 3/1/06. Also. fees In the amount of
$58.74 for a credit report and UCC filings has been added to the balance owing,
bringing the total loan to $418,464.49. The interest rate is changed to a fixed
rate of 9.0%, and the computation of interest is hereby changed from the 365/365
simple interest rule to the 365/360 rule, AIl other terms and conditions will
remain as originally written.
PROMISE TO PAY. THE COEUR D'ALENES COMPANY ("Borrower") promises to pay
to Inland Northwest Bank ("Lender"), or order, In lawful money of the United
States of America, the principal amount of Four Hundred Eighteen Thousand Four
Hundred Sixty Four & 49/100 Dollars ($418,464.49), together with interest at the
rate of 9.000% per annum on the unpaid principal balance from February 28, 2001,
until paid In full.
PAYMENT. Borrower will pay this loan in 59 payments of $8,717.21 each
payment and an irregular last payment estimated at $8,717.80. Xxxxxxxx's first
payment is due April 1, 2001,and all subsequent payments are due on the same day
of each month after that. Xxxxxxxx's final payment will be due on March 1, 2006,
and will be for all principal and all accrued interest not yet paid. Payments
include principal and interest. Interest on this Agreement is computed on a
365/360 simple interest basis; that is, by applying the ratio of the annual
Interest rate over a year or 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding. Borrower will pay Lender at Xxxxxx's address shown above or at such
other place as Lender may designate in writing.
PREPAYMENT. Xxxxxxxx agrees that all loan fees and other prepaid
finance charges are earned fully as of the date of the loan and will not be
subject to refund upon early payment (whether voluntary or as a result of
default), except as otherwise required by law. Except for the foregoing,
Borrower may pay without penalty all or a portion of the amount owed earlier
than it is due. Early payments will not, unless agreed to by Xxxxxx in writing,
relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make payments under the
payment schedule. Rather, early payments will reduce the principal balance due
and may result in Borrower's making fewer payments. Xxxxxxxx agrees not to send
Lender payments marked "paid in full", "without recourse", or similar language.
If Borrower sends such a payment, Xxxxxx may accept it without losing any of
Xxxxxx's rights under this Agreement, and Borrower will remain obligated to pay
any further amount owed to Lender. All written communications concerning
disputed amounts, including any check or other payment instrument that indicates
that the payment constitutes "payment in full" of the amount owed or that is
tendered with other conditions or limitations or as full satisfaction of a
disputed amount must be mailed or delivered to: Inland Northwest Bank, 000 X.
Xxxxxxxxx Xxx. Spokane, WA 99201.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be
charged 5.000% of the regularly scheduled payment or $50.00, whichever is less.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon
final maturity, Lender, at its option, may, if permitted under applicable law,
increase the interest rate on this Agreement to 18.000% per annum. The interest
rate will not exceed the maximum rate permitted by applicable law.
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 Indebtedness.
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.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Agreement or
the Related Documents is false or misleading in any material respect, either now
or at the time made or furnished or becomes false or misleading at any time
thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a
going business, the insolvency of Xxxxxxxx, the appointment of a receiver for
any part of Xxxxxxxx's property, any assignment for the benefit of creditors,
any type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
2
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 Indebtedness.
This includes a garnishment of any of Xxxxxxxx's accounts, including
deposit accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Xxxxxxxx as to the validity or reasonableness
of the claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice or 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.
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 Xxxxxx believes the prospect of payment or performance
of the Indebtedness is impaired.
Cure Provisions. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of the same
provision or (his Agreement within the preceding twelve (12) months, it may be
cured (and no event of default will have occurred) if Borrower, after receiving
written notice from Lender demanding cure of such default: (1) cures the default
within ten (10) days; or (2) if the cure requires more than ten (10) days,
immediately initiates steps which Lender deems in Xxxxxx's sole discretion to be
sufficient to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid
principal balance on this Agreement and all accrued unpaid interest Immediately
due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Agreement if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Xxxxxx's
attorneys' fees and Xxxxxx's legal expenses, whether or not there is a lawsuit,
including attorneys' fees, expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or, injunction), and appeals. If
not prohibited by applicable law, Xxxxxxxx also will pay any court costs, in
addition to all other sums provided by law.
3
GOVERNING LAW. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the State of Washington.
This Agreement has been accepted by Xxxxxx in the State of Washington.
CHOICE OF VENUE. If there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's
request to submit to the jurisdiction of the courts of SPOKANE County, State of
Washington.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if
Borrower makes a payment on Borrower's loan and the check or preauthorized
charge with which Borrower pays is later dishonored.
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 IRA or Xxxxx accounts, or any trust
accounts for which setoff would be prohibited by law. Borrower authorizes
Xxxxxx, 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 Xxxxxx's
option, to administratively freeze all such accounts to allow Lender to protect
Xxxxxx's charge and setoff rights provided in this paragraph.
COLLATERAL. Borrower acknowledges this Agreement is secured by BOLDRINI
2 1/2 X 10 PLATE ROLL SIN 3038; SECTOR STI 100 BURN MACHINE; AND 21' X 50' WATER
TABLE.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the
terms of the original obligation or obligations, including all agreements
evidenced or securing the obligation(s), remain unchanged and in full force and
effect. Consent by Xxxxxx to this Agreement does not waive Xxxxxx's right to
strict performance of the obligation(s) as changed, nor obligate Lender to make
any future change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender to retain as
liable parties all makers and endorsers of the original obligation(s), including
accommodation parties, unless a party is expressly released by Xxxxxx in
writing. Any maker or endorser, including accommodation makers, will not be
released by virtue of this Agreement. If any person who signed the original
obligation does not sign this Agreement below, then all persons signing below
acknowledge that this Agreement is given conditionally, based on the
representation to Lender that the non-signing party consents to the changes and
provisions of this Agreement or otherwise will not be released by it. This
waiver applies not only to any initial extension, modification or release, but
also to all such subsequent actions.
4
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Xxxxxxxx's interest, this Agreement shall be binding
upon and inure to the benefit of the parties, their successors and assigns, if
ownership of the Collateral becomes vested in a person other than Borrower,
Lender, without notice to Borrower, may deal with Xxxxxxxx's successors with
reference to this Agreement and the Indebtedness by way of forbearance or
extension without releasing Borrower from the obligations of this Agreement or
liability under the Indebtedness.
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of
its rights or remedies under this Agreement without losing them.
Borrower and any other person who signs, guarantees or endorses this
Agreement, to the extent allowed by law, waive presentment, demand for payment,
and notice of dishonor. Upon any change in the terms of this Agreement, and
unless otherwise expressly stated in writing, no party who signs this Agreement,
whether as maker, guarantor, accommodation maker or endorser, shall be released
from liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Xxxxxx's
security interest in the collateral; and take any other action deemed necessary
by Xxxxxx without the consent of or notice to anyone. All such parties also
agree that Xxxxxx may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made. The obligations
under this Agreement are joint and several.
PRIOR TO SIGNING THIS AGREEMENT, XXXXXXXX READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT. XXXXXXXX AGREES TO THE TERMS OF THE AGREEMENT.
BORROWER:
THE COEUR D'ALENES COMPANY
BUSINESS LOAN AGREEMENT
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.
Borrower: THE COEUR D'ALENES COMPANY Lender: Inland Northwest Bank
P.O. BOX 2610 000 X. Xxxxxxxxx Xxx. SPOKANE, WA 99220-2610 Spokane, WA 99201
5
THIS BUSINESS LOAN AGREEMENT dated February 21, 2001, is made and executed
between THE COEUR D'ALENES COMPANY ("Borrower") and Inland Northwest Bank
("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"). Xxxxxxxx
understands and agrees that: (A) In granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements as
set forth in this Agreement, and (B) all such Loans shall be and remain subject
to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of February 21, 2001, 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. Xxxxxx's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction or all or the conditions set forth in this
Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following
documents for the Loan: (1) the Note; (2) Security Agreements granting to Lender
security interests in the Collateral; (3) financing statements perfecting
Lender's Security Interests; (4) evidence of insurance as required below; (5)
together with all such Related Documents as Lender may require for the Loan; all
in form and substance satisfactory to Lender end 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 or 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.
6
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing under and
by virtue of the laws of the State of Washington. Borrower is duly authorized to
transact business in all other states in which Borrower is doing business,
having obtained all necessary filings, governmental licenses and approvals for
each state in which Borrower is doing business. Specifically, Borrower is, and
at all times shall be, duly qualified as a foreign corporation in all states in
which the failure to so qualify would have a material adverse effect on its
business or financial condition. Xxxxxxxx has the full power and authority to
own its properties and to transect the business in which it is presently engaged
or presently proposes to engage. Borrower maintains an office at P. O. BOX 2610,
SPOKANE, WA 99220-2610. Unless Borrower has designated otherwise in writing, the
principle office is the office at which Borrower keeps its books and records
including its records concerning the Collateral. Borrower will notify Lender of
any change in the location of Xxxxxxxx's principle office. Borrower shall do all
things necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental authority
or court applicable to Borrower and Xxxxxxxx's business activities.
Assumed Business Names. Xxxxxxxx has filed or recorded all documents or
filings required by law relating to all assumed business names used by Xxxxxxxx.
Excluding the name of Xxxxxxxx, the following is a complete list of all assumed
business names under which Borrower does business: None.
Authorization. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a violation of,
or constitute a default under (1) any provision of 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 Xxxxxxxx's financial statements supplied
to Xxxxxx truly and completely disclosed Xxxxxxxx's financial condition as of
the date of the statement, and there has been no material adverse change in
Xxxxxxxx'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.
7
Properties. Except as contemplated by this Agreement or as previously
disclosed in Xxxxxxxx's financial statements or in writing to Lender and as
accepted by Xxxxxx, and except for property tax liens for taxes not presently
due and payable, Borrower owns and has good title to all of Borrower's
properties free and clear of all Security Interests, and has not executed any
security documents or financing statements relating to such properties. All of
Xxxxxxxx's properties are titled in Borrower's legal name, and Xxxxxxxx has not
used, or filed a financing statement under, any other name for at least the last
five (5) years.
Hazardous Substances. Except as disclosed to and acknowledged by Xxxxxx
in writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of 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 shell be conducted in
compliance with all applicable federal, slate, 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 shell not be affected by Xxxxxx'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)
8
against Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been disclosed
to and acknowledged by Xxxxxx in writing.
Taxes. To the best of Xxxxxxxx's knowledge, all of Xxxxxxxx's tax
returns and reports that are or were required to be filed, have been filed, and
all taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith in the
ordinary course of business and for which adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in
writing, Xxxxxxxx has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting any
of the Collateral directly or indirectly securing repayment of
Xxxxxxxx's Loan and Note, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof, as well as
upon their successors, representatives and assigns, and are legally enforceable
in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that, so long
as this Agreement remains in effect, Borrower will:
Notices or Claims and Litigation. Promptly inform Xxxxxx in writing of
(1) all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial condition
of any Guarantor.
Financial Records. Maintain its books and records in accordance with
GAAP, applied on a consistent basis, and permit Xxxxxx to examine and audit
Xxxxxxxx's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Xxxxxxxx's balance sheet and
income statement for the year ended, audited by a certified public accountant
satisfactory to Lender.
9
Interim Statements. As soon as available, but in no event later than 15
days after the end of each fiscal quarter, Xxxxxxxx's balance sheet and profit
and loss statement for the period ended, prepared by Xxxxxxxx.
Additional Requirements. Bank requires receipt of quarterly inventory
listings and A/R & A/P agings, and monthly borrowing base certificates.
All financial reports required to be provided under this Agreement
shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
Additional Information. Furnish such additional information and
statements. as Xxxxxx may request from time to time. Financial Covenants and
Ratios. Comply with the following covenants and ratios:
Working Capital Requirements. Maintain Working Capital in excess of
$1,500,000.00. In addition, Borrower shall comply with the following working
capital ratio requirements:
Current Ratio. Maintain a ratio of Current in excess of 1.500 to 1.000.
This liquidity ratio will be evaluated as of year-end.
Tangible Net Worth Requirements. Maintain a minimum Tangible Net Worth
of not less than: $2,200,000.00. In addition, Borrower shall comply with the
following net worth ratio requirements:
Debt/Equity Ratio. Maintain a ratio of Debt/Equity below 2.000 to
1.000. Other Requirements. Fixed Asset Limitation = $250.000.00.
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 Xxxxxx, will
deliver to Lender from time to time the policies or certificates or insurance in
form satisfactory to Lender, including stipulations that coverages will not be
cancelled or diminished without at least ten (10) 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
10
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 or 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 Xxxxxxxx's business
operations, unless specifically consented to the contrary by Xxxxxx in writing.
Taxes, Charges and Liens. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all assessments,
taxes, governmental charges, levies and liens, of every kind and nature, imposed
upon Borrower or its properties, income, or profits, prior to the date on which
penalties would attach, and all lawful claims that, if unpaid, might become a
lien or charge upon any of Borrower's properties. income, or profits.
Performance. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower and
Lender. Borrower shall notify Xxxxxx immediately in writing of any default in
connection with any agreement.
Operations. Maintain executive and management personnel with
substantially the same qualifications and experience as the present executive
and management personnel; provide written notice to Lender of any change in
executive and management personnel, 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 Xxxxxxxx has notified
Xxxxxx in writing prior to doing so and so long as. in Xxxxxx's sole opinion,
Xxxxxx's interests in the Collateral are not jeopardized. Lender may require
Borrower to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Xxxxxx's interest.
11
Inspection. Permit employees or agents of Lender at any reasonable time
to inspect any and all Collateral for the Loan or Loans and Xxxxxxxx's other
properties and to examine or audit Xxxxxxxx's books, accounts, and records and
to make copies and memoranda of Xxxxxxxx's books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
request of Xxxxxx, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of any records
it may request, all at Borrower's expense.
Compliance Certificates. Unless waived in writing by Xxxxxx, provide
Lender at least annually, with a certificate executed by Xxxxxxxx's chief
financial officer, or other officer or person acceptable to Lender, certifying
that the representations and warranties set forth in this Agreement are true and
correct as of the date of the certificate and further certifying that, as of the
date of the certificate, no Event of Default exists under this Agreement.
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 end in compliance with the
conditions of a permit issued by the appropriate federal, state or local
governmental authorities; shall furnish to Lender promptly end 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 Xxxxxxxx'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 or any
thereof by any court or administrative or governmental authority (including any
request or policy not having the Terce 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, (8) reduce
12
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 Xxxxxxxx agrees to pay Lender such additional amounts as will
compensate Lender therefor, within five (5) days after Xxxxxx's written demand
for such payment, which demand shall be accompanied by an explanation of such
imposition or charge and a calculation in reasonable detail of the additional
amounts payable by Borrower, which explanation and calculations shall be
conclusive in the absence of manifest error.
XXXXXX'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Xxxxxxxx. All such expenses will become a
part of the Indebtedness and, at Xxxxxx's option, will (A) be payable on demand;
(8) 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 at 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
Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money, including
capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant a
security interest in, or encumber any of Borrower's assets (except as allowed as
Permitted Liens), or (3) sell with recourse any of Borrower's accounts, except
to Xxxxxx.
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged, (2)
cease operations, liquidate, merge, transfer, acquire or consolidate with any
other entity, change its name, dissolve or transfer or sell Collateral out or
the ordinary course of business, or (3) pay any dividends on Borrower's stock
(other than dividends payable in its stock), provided, however that
notwithstanding the foregoing, but only so long as no Event of Default has
occurred and is continuing or would result from the payment of dividends, if
Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue
Code of 1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the shareholders
13
to pay income taxes and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from their status as
Shareholders of a Subchapter S Corporation because of their ownership of shares
of Borrower's stock, or purchase or retire any of Borrower's outstanding shares
or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance
money or assets, (2) purchase, create or acquire any interest in any other
enterprise or entity, or (3) incur any obligation as surety or guarantor other
than in the ordinary course of business.
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.
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 IRA or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Xxxxxxxx authorizes Xxxxxx, 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 Xxxxxx's option, to
administratively freeze all such accounts to allow Lender to protect Xxxxxx'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. Xxxxxxxx fails to make any payment when due under the
Loan.
Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Agreement,
the Note, or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a
going business, the insolvency of Xxxxxxxx, the appointment of a receiver for
any part of Xxxxxxxx's property, any assignment for the benefit of creditors,
14
any type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
Defective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or lien)
at any time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help, repossession
or any other method, by any creditor of Borrower or by any governmental agency
against any collateral securing the Loan. This includes a garnishment of any of
Xxxxxxxx's accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by Xxxxxxxx as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives Xxxxxx written notice of
the creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount determined
by Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability under,
any Guaranty of the Indebtedness. In the event or 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 Xxxxxx believes the prospect of payment or performance
of the Loan is impaired.
Right to Cure. if any default, other than a default on Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given a
notice of a similar default within the preceding twelve (12) months, it may be
cured (and no Event of Default will have occurred) if Borrower Or Grantor, as
the case may be, after receiving written notice from Lender demanding cure of
such default: (1) cure the default within ten (10) days; or (2) if the cure
requires more than ten (10) days, immediately initiate steps which Lender deems
in Lender's sole discretion to be sufficient to cure the default and thereafter
continue and complete all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical. EFFECT OF AN EVENT OF DEFAULT. If
any Event of Default shall occur, except where otherwise provided in this
Agreement or the Related Documents, all commitments and obligations of Lender
under this Agreement or the Related Documents or any other agreement immediately
will terminate (including any obligation to make further Loan Advances or
disbursements), and, at Lender's option, all Indebtedness immediately will
become due and payable, all without notice of any kind to Borrower, except that
in the case of an Event of Default of the type described in the "Insolvency"
subsection above, such acceleration shall be automatic and not optional. In
addition, Xxxxxx shall have all the rights and remedies provided in the Related
15
Documents or available at law, in equity, or otherwise. Except as may be
prohibited by applicable law, all of Lender's rights and remedies shall be
cumulative and may be exercised singularly or concurrently. Election by Xxxxxx
to pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Borrower or of any Grantor shall not affect Xxxxxx's right to declare a default
and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Xxxxxxxx agrees to pay upon demand all of
Xxxxxx's costs and expenses, including Xxxxxx's attorneys' fees and Xxxxxx's
legal expenses, incurred in connection with the enforcement of this Agreement.
Lender may hire or pay someone else to help enforce this Agreement, and Borrower
shall pay the costs and expenses of such enforcement. Costs and expenses include
Xxxxxx's attorneys' fees and legal expenses whether or not there is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Borrower also
shell pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Consent to Loan Participation. Xxxxxxxx agrees and consents to Xxxxxx's
sale or transfer, whether now or later, or one or more participation interests
in the Loan to one or more purchasers, whether related or unrelated to Lender.
Lender may provide, without any limitation whatsoever, to any one or more
purchasers, or potential purchasers, any information or knowledge Lender may
have about Borrower or about any other matter relating to the Loan, and Borrower
hereby waives any rights to privacy Borrower may have with respect to such
matters. Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of such
participation interests. Xxxxxxxx also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such
interests in the Loan and will have all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all rights of offset or counterclaim that it
may have now or later against Lender or against any purchaser of such a
participation interest end unconditionally agrees that either Lender or such
16
purchaser may enforce Xxxxxxxx's obligation under the Loan irrespective of the
failure or insolvency of any holder of any interest in the Loan. Xxxxxxxx
further agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims or defenses that
Borrower may have against Xxxxxx.
Governing Law. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the State of Washington.
This Agreement has been accepted by Xxxxxx in the State of Washington.
Choice of Venue. If there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's
request to submit to the jurisdiction of the courts of SPOKANE County, State of
Washington.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and signed by
Xxxxxx. No delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by Xxxxxx of a
provision of this Agreement shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Xxxxxx, nor any course of
dealing between Xxxxxx and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any of Lender's rights or of any of Borrower's or any
Grantor's obligations as to any future transactions. Whenever the consent of
Lender is required under this Agreement, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Notices. Subject to applicable law, and except for notice required or
allowed by law to be given in another manner, any notice required to be given
under this Agreement shall be given in writing, and shall be effective when
actually delivered, when actually received by telefacsimile (unless otherwise
required by law), when deposited with a nationally recognized overnight courier,
or, if mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses shown
near the beginning of this Agreement. Any party may change its address for
notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Xxxxxxxx agrees to keep Xxxxxx informed at all
times of Xxxxxxxx's current address. Subject to applicable law, and except for
notice required or allowed by law to be given in another manner, 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
or 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
17
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 contained by or on
behalf of Borrower shall bind Xxxxxxxx's successors and assigns end shall inure
to the benefit of Lender and its successors and assigns. Borrower shall not,
however, have the right to assign Xxxxxxxx's rights under this Agreement or any
interest therein, without the prior written consent of Lender.
Survival of Representations and Warranties. Xxxxxxxx understands and
agrees that in making the Loan, Xxxxxx is relying on all representations,
warranties, and covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Xxxxxxxx further agrees that regardless of
any investigation made by Xxxxxx, all such representations, warranties and
covenants will survive the making of the Loan and delivery to Lender of the
Related Documents, shall be continuing in nature, and shall remain in full force
and effect until such time as Xxxxxxxx's Indebtedness shall be paid in full, or
until this Agreement shall be terminated in the manner provided above, whichever
is the last to occur.
Time is of the Essence. Time is of the essence in the performance of
this Agreement. DEFINITIONS. The following capitalized words and terms shall
have the following meanings when used in this Agreement. Unless specifically
staled 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.
18
Borrower. The word "Borrower" means THE COEUR D'ALENES COMPANY, and all
other persons and entities signing the Note in whatever capacity.
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 or 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 of 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 traction thereof and asbestos.
19
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 Inland Northwest Bank, 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 Xxxxxxxx in the
principal amount of $419,514.49 dated February 21, 2001, together with all
renewals of, extensions of, modifications of, refinancings of, consolidations
of, and substitutions for the note or credit agreement.
Permitted Liens. The words "Permitted Liens" mean (1) liens and
security interests securing Indebtedness owed by Borrower to Lender; (2) liens
for taxes, assessments, or similar charges either not yet due or being contested
in good faith; (3) liens of materialmen, mechanics, warehousemen, or carriers,
or other like liens arising in the ordinary course of business and securing
obligations which are not yet delinquent; (4) purchase money liens or purchase
money security interests upon or in any property acquired or held by Borrower in
the ordinary course of business to secure indebtedness outstanding on the date
of this Agreement or permitted to be incurred under the paragraph of this
Agreement titled "indebtedness and Liens"; (5) liens and security interests
which, as of the date of this Agreement, have been disclosed to and approved by
the Lender in writing; and (6) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Xxxxxxxx's assets.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Loan.
Security Agreement. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security Interest.
Security Interest. The words "Security Interest" mean, without
limitation, any and all types or collateral security, present and future,
20
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.
Tangible Net Worth. The words "Tangible Net Worth" mean Borrower's
total assets excluding all intangible assets (i.e., goodwill, trademarks,
patents, copyrights, organizational expenses, and similar intangible items, but
including leaseholds and leasehold improvements) less total debt.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS
LOAN AGREEMENT AND XXXXXXXX AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED FEBRUARY 21,2001.
BORROWER:
THE COEUR D'ALENES
LENDER:
CHANGE IN TERMS AGREEMENT
References in the shaded area only applicability of this document to
any particular loan or & Any item above has been omitted due to text length
limitations.
Borrower: THE COEUR D'ALENES COMPANY Lender: Inland Northwest Bank
P. O. BOX 2610 000 X. Xxxxxxxxx Xxx. SPOKANE, WA 99220-2610 Spokane, WA 99201
Principal Amount: $1,500,000.00 Initial Rate: 8.500% Date of Agreement:
February 20, 2001
DESCRIPTION OF EXISTING INDEBTEDNESS. OPERATING LINE OF CREDIT IN THE
AMOUNT OF $1,900,000 ADVANCED 3/27/2000, PAYABLE INTEREST ONLY, ON THE 16TH OF
EACH MONTH, AT WALL STREET JOURNAL PRIME RATE, WITH MATURITY OF 2/16/01.
MATURITY WAS EXTENDED TO 3/16/01.
DESCRIPTION OF COLLATERAL. INVENTORY, ACCOUNTS, CHATTEL PAPER AND
GENERAL INTANGIBLES.
DESCRIPTION OF CHANGE IN TERMS. EFFECTIVE THIS DATE, THE MATURITY OF
THIS LINE OF CREDIT IS HEREBY EXTENDED TO FEBRUARY 16, 2002. ALSO EFFECTIVE THIS
DATE, THE AMOUNT OF THE LINE IS LOWERED TO $1,500,000. THE COMPUTATION OF
INTEREST HAS BEEN CHANGED FROM THE 365/365 SIMPLE INTEREST RULE, TO THE 365/360
RULE. ALL OTHER TERMS AND CONDITIONS WILL REMAIN AS ORIGINALLY WRITTEN.
21
PROMISE TO PAY. THE COEUR D'ALENES COMPANY ("Borrower") promises to pay
to Inland Northwest Bank ("Lender"), or order, In lawful money or the United
States of America, the principal amount of One Million Five Hundred Thousand &
00/100 Dollars $1,500,000.00 or so much as may be outstanding, together with
interest on the unpaid outstanding principal balance of each advance. Interest
shall be calculated from the date of each advance until repayment of each
advance.
PAYMENT. Borrower will pay this loan on demand. Payment in full is due
immediately upon Xxxxxx's demand. If no demand is made, Xxxxxxxx will pay this
loan in one payment of all outstanding principal plus all accrued unpaid
interest on February 16, 2002. In addition, Borrower will pay regular monthly
payments of all accrued unpaid interest due as of each payment date, beginning
March 16, 2001, with all subsequent interest payments to be due on the same day
of each month after that. Interest on this Agreement is computed on a 385/360
simple interest basis; that is, by applying the ratio of the annual interest
rate over a year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is outstanding.
Borrower will pay Lender at Xxxxxx's address shown above in or at such other
place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject
to change from time to time based on changes in an independent index which is
the The Prime Rate as published in the Wall Street Journal (the "index"). The
Index is not necessarily the lowest rate charged by Lender on its loans. If the
Index becomes unavailable during the term of this loan, Lender may designate a
substitute index after notice to Borrower. Lender will tell Borrower the current
Index rate upon Xxxxxxxx's request. The interest rate change will not occur more
often than each day. Borrower understands that Lender may make loans based on
other rates as well. The Index currently is 8 1/2% per annum. The interest rate
to be applied to the unpaid principal balance of the Note will be at a rate
equal to the Index, resulting in an initial rate of 8.500% per annum. NOTICE:
Under no circumstances will the interest rate on the Note be more than the
maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the
amount owed earlier than it is due. Early payments will not, unless agreed to by
Xxxxxx in writing, relieve Xxxxxxxx of Xxxxxxxx's obligation to continue to make
payments of accrued unpaid interest. Rather, early payments will reduce the
principal balance due. Xxxxxxxx agrees not to send Lender payments marked "paid
in full", "without recourse", or similar language. If Borrower sends such a
payment, Xxxxxx may accept it without losing any of Xxxxxx's rights under this
Agreement, and Borrower will remain obligated to pay any further amount owed to
Lender. All written communications concerning disputed amounts, including any
check or other payment instrument #let indicates that the payment constitutes
"payment in full" of the amount owed or that is tendered with other conditions
or limitations or as full Satisfaction of a disputed amount must be mailed or
delivered to: Inland Northwest Bank, 000 X. Xxxxxxxxx Xxx. Spokane, WA 99201.
22
LATE CHARGE. If a payment is 10 days or more late, Borrower will be
charged 5.00% or the regularly scheduled payment or $50.00, whichever is less.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon
final maturity, the total sum due under this Agreement will bear interest from -
the date of acceleration or maturity at the variable interest rate on this
Agreement. The interest rate will not exceed the maximum rate permitted by
applicable law.
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 Indebtedness.
Other Defaults. Borrower fails to comply with or to perform any other
term. obligation, covenant or condition contained in this Agreement or in any or
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.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Agreement or
the Related Documents is false or misleading in any material respect, either now
or at the time made or furnished or becomes false or misleading at any time
thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a
going business, the insolvency of Borrower. the appointment of a receiver for
any part of Xxxxxxxx's property, any assignment for the benefit of creditors.
any type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
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 Indebtedness. This includes a garnishment of
any of Xxxxxxxx's accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply if there is a good faith dispute by
Xxxxxxxx as to the validity or reasonableness of the claim which is the basis of
the creditor or forfeiture proceeding and if Borrower gives Xxxxxx written
notice of the creditor or forfeiture proceeding and deposits with Lender monies
or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
23
Events Affecting Guarantor.
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 Xxxxxx believes the prospect of payment or performance
of the Indebtedness is impaired.
Cure Provisions. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of the same
provision of this Agreement within the preceding twelve (12) months, it may be
cured (and no event of default will have occurred) if Borrower, after receiving
written notice from Lender demanding cure of such default: (1) cures the default
within ten (10) days; or (2) if the cure requires more than ten (10) days,
immediately initiates steps which Lender deems in Xxxxxx's sole discretion to be
sufficient to cure the default end thereafter L continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
LENDER'S RIGHTS. Upon default, Xxxxxx may declare the entire unpaid
principal balance on this Agreement and all accrued unpaid interest immediately
due, and then Borrower will pay that amount.
ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help
collect this Agreement if Borrower does not pay. Borrower will pay Lender that
amount. This includes, subject to any limits under applicable law, Xxxxxx's
attorneys' fees and Xxxxxx's legal expenses, whether or not there is a lawsuit
including attorneys' fees, expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or Injunction), and appeal. If
not prohibited by applicable law, Xxxxxxxx also will pay any court costs; in
addition to the otheisums provided by law.
GOVERNING LAW. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the State of Washington.
This Agreement has been accepted by Xxxxxx in the State or Washington.
CHOICE OF VENUE. If there is a lawsuit. Xxxxxxxx agrees upon Xxxxxx's
request to submit to the jurisdiction or the courts of SPOKANE County, State of
Washington.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $18.00 if
Borrower makes a payment on Borrower's loan and the check or preauthorized
charge with which Borrower pays is later dishonored.
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
24
future. However, this does not include any IRA or Xxxxx accounts, or any trust
accounts for which setoff would be prohibited by law. Borrower authorizes
Xxxxxx, 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 Xxxxxx's
option, to administratively freeze all such accounts to allow Lender to protect
Xxxxxx's charge and setoff rights provided in this paragraph.
COLLATERAL. Borrower acknowledges this Agreement is secured by INVENTORY,
ACCOUNTS, CHATTEL PAPER AND GENERAL INTANGIBLES.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement, as well as directions for payment from Xxxxxxxx's
accounts, may be requested orally or in writing by Borrower or by an authorized
person. Lender may, but need not, require that all oral requests be confirmed in
writing. Xxxxxxxx agrees to be liable for all sums either: (A) advanced in
accordance with the instructions of an authorized person or (B) credited to any
of Xxxxxxxx's accounts with Xxxxxx. The unpaid principal balance owing on this
Agreement at any time may be evidenced by endorsements on this Agreement or by
Xxxxxx's internal records, including daily computer print-outs. Lender will have
no obligation to advance funds under this Agreement if: (A) Borrower or any
guarantor is in default under the terms of this Agreement or any agreement that
Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Agreement; (B) Borrower or any guarantor
ceases doing business or is insolvent; (C) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of this
Agreement or any other loan with Lender; or (D) Borrower has applied funds
provided pursuant to this Agreement for purposes other than those authorized by
Lender.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of
the original obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and in full force and effect.
Consent by Xxxxxx to this Agreement does not waive Xxxxxx's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a satisfaction
of the obligation(s). It is the intention of Lender to retain as liable parties
all makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Xxxxxx in writing. Any maker or
endorser, including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent
actions.
25
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on
transfer of Xxxxxxxx's interest, this Agreement shall be binding upon and inure
to the benefit of the parties, their successors and assigns. If ownership of the
Collateral becomes vested in a person other than Xxxxxxxx, Lender, without
notice to Xxxxxxxx, may deal with Xxxxxxxx's successors with reference to this
Agreement and the Indebtedness by way of forbearance or extension without
releasing Borrower from the obligations of this Agreement or liability under the
Indebtedness.
MISCELLANEOUS PROVISIONS. This Agreement is payable on demand. The inclusion of
specific default provisions or rights of Lender shall not preclude Lender's
right to declare payment or this Agreement on its demand. Lender may delay or
forgo enforcing any of its rights or remedies under this Agreement without
losing them. Borrower and any other person who signs, guarantees or endorses
this Agreement, to the extent allowed by law, waive presentment, demand for
payment, and notice of dishonor. Upon any change in the terms of this Agreement,
and unless otherwise expressly stated in writing, no party who signs this
Agreement, whether as maker, guarantor, accommodation maker or endorser, shall
be released from liability. All such parties agree that Lender may renew or
extend (repeatedly and for any length of time) this loan or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Xxxxxx's
security interest in the collateral; and take any other action deemed necessary
by Xxxxxx without the consent of or notice to anyone. All such parties also
agree that Xxxxxx may modify this loan without the consent or of notice to
anyone other than the party with whom the modification is made. The obligations
under this Agreement are joint and several.
PRIOR TO SIGNING THIS AGREEMENT, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. XXXXXXXX
AGREES TO THE TERMS OF THE AGREEMENT.
BORROWER:
THE COEUR D'ALENES COMPANY
BUSINESS LOAN AGREEMENT (ASSET BASED)
References in the shaded area are for Lender's use only and do not
limit the applicability or this document to any particular loan or item Any item
above containing """' has been omitted due to text length limitations.
Borrower: THE COEUR D'ALENES COMPANY Lender: Inland Northwest Bank
P. O. BOX 2610 000 X. Xxxxxxxxx Xxx. _ SPOKANE, WA 99220-2610 Spokane, WA 99201
26
THIS BUSINESS LOAN AGREEMENT (ASSET BASED) dated February 20, 2001, is
made and executed between THE COEUR D'ALENES COMPANY ("Borrower") and Inland
Northwest Bank ("Lender") an 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 finance accommodations, including those which
may be described on any exhibit or schedule attached to this Agreement ("Loan").
Xxxxxxxx understands and agrees that: (A) In granting, renewing, or extending
any Loan, Lender is relying upon Borrower's representations, warranties, and
agreements as set forth In this Agreement, and (B) all such Loans shall be and
remain subject to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of February 20, 2001, 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 February
16, 2002.
LINE OF CREDIT. Xxxxxx agrees to make Advances to Borrower from time to
time from the date of this Agreement to the Expiration Date, provided the
aggregate amount of such Advances outstanding at any time does not exceed the
Borrowing Base. Within the foregoing limits, Borrower may borrow, partially or
wholly prepay, and reborrow under this Agreement as follows:
Conditions Precedent to Each Advance. Xxxxxx's obligation to make any
Advance to or for the account of Borrower under this Agreement is subject to the
following conditions precedent. with all documents, instruments, opinions,
reports, and other items required under this Agreement to be in form and
substance satisfactory to Lender:
(1) Lender shall have received evidence that this Agreement and all
Related Documents have been duly authorized, executed, and delivered; by
Xxxxxxxx to Lender.
(2) Lender shall have received such opinions of counsel, supplemental
opinions, end documents as Xxxxxx may request.
(3) The security interests in the Collateral shall have been duly
authorized, created, and perfected with first lien priority and shall be in full
force and effect.
(4) All guaranties required by Lender for the credit facility(ies)
shall have been executed by each Guarantor, delivered to Lender, and be in full
force and effect.
(5) Lender. at its option and for its sole benefit, shall have
conducted an audit of Borrower's Accounts, Inventory, books, records, and
operations, and Lender shall be satisfied as to their condition.
27
(6) Borrower shall have paid to Lender all fees, costs, and expenses
specified In this Agreement and the Related Documents as are then due and
payable.
(7) There shall not exist at the time of any Advance a condition which
would constitute an Event of Default under this Agreement, and Borrower shall
have delivered to Lender the compliance certificate called for in the paragraph
below titled "Compliance Certificate."
Making Loan Advances. Advances under this credit facility, as well as
directions for payment from Xxxxxxxx's accounts. may be requested orally or in
writing by authorized persons. Lender may, but need not, require that all oral
requests be confirmed in writing. Each Advance shall be conclusively deemed to
have been made at the request of and for the benefit of Borrower (l) when
credited to any deposit account of Borrower maintained with Lender or (2) when
advanced in accordance with the instructions of an authorized person. Lender, at
its option, may set a cutoff time, after which all requests for Advances will be
treated as having been requested on the next succeeding Business Day.
Mandatory Loan Repayments. If at any time the aggregate principal
amount of the outstanding Advances shall exceed the applicable Borrowing Base,
Borrower, immediately upon written or oral notice from Lender, shall pay to
Lender an amount equal to the difference between the outstanding principal
balance of the Advances and the Borrowing Base. On the Expiration Date, Borrower
shall pay to Lender in full the aggregate unpaid principal amount of all
Advances then outstanding and all accrued unpaid interest, together with all
other applicable fees, costs and charges, if any, not yet paid.
Loan Account. Lender shall maintain on its books a record of account in
which Lender shall make entries for each Advance and such other debits and
credits as shall be appropriate in connection with the credit facility. Lender
shall provide Borrower with periodic statements of Xxxxxxxx's account, which
statements shall be considered to be correct and conclusively binding on
Borrower unless Borrower notifies Lender to o the contrary within thirty (30)
days after Xxxxxxxx's receipt of any such statement which Borrower deems to be
incorrect.
COLLATERAL. To secure payment of the Primary Credit Facility and
performance of all other Loan, obligations and duties owed by Borrower to
Lender, Borrower (and others, if required) shall grant to Lender Security
Interests in such property and assets as Lender may require. Lender's Security
Interests in the Collateral shall be continuing liens and shall include the
proceeds and products of the Collateral, including without limitation the
proceeds or any insurance. With respect to the Collateral, Xxxxxxxx agrees and
represents and warrants to Xxxxxx:
Perfection of Security Interests. Xxxxxxxx agrees to execute such
financing statements and to take whatever other actions are requested by the
Lender to perfect and continue Xxxxxx's Security Interests in the Collateral.
Upon request of Xxxxxx, Xxxxxxxx will deliver to Lender any and all of the
28
documents evidencing, or constituting the Collateral, and Xxxxxxxx will note
Xxxxxx's interest upon any and all chattel paper if not delivered to Lender for
possession By Xxxxxx. Contemporaneous with the execution of this Agreement,
Borrower will, execute bn4 or more UCC financing statements and any similar
statements as may be required by applicable law, and Lender will file such
financing statements and all such similar statements in the appropriate location
or locations. Borrower hereby appoints Xxxxxx as its irrevocable
attorney-in-fact for the purpose of executing any documents necessary to perfect
or to continue any Security Interest. Xxxxxx may at any time, and without
further authorization from Borrower, file a carbon, photograph. facsimile, or
other reproduction of any financing statement for use as a financing statement.
Borrower will reimburse Lender for all expenses for the perfection, termination,
and the continuation of the perfection of Xxxxxx's security interest in the
Collateral. Borrower promptly will notify Lender of any change in Xxxxxxxx's
name including any change to the assumed business names of Xxxxxxxx. Borrower
also promptly will notify Lender of any change in Borrower's Social Security
Number or Employer Identification Number. Xxxxxxxx further agrees to notify
Xxxxxx in writing prior to any change in address or location of Xxxxxxxx's
principal governance office or should
Borrower merge or consolidate with any other entity.
Collateral Records. Borrower does now, and at all times hereafter
shall, keep correct and accurate records of the Collateral, all of which records
shall be available to Lender or Xxxxxx's representative upon demand for
inspection and copying at any reasonable time. With respect to the Accounts,
Xxxxxxxx agrees to keep and maintain such records as Lender may require,
including without limitation information concerning Eligible Accounts and
Account balances and agings. Records related to Accounts (Receivables) are or
will be located at ____. With respect to the Inventory, Xxxxxxxx agrees to keep
and maintain such records as Lender may require, including without limitation
information concerning Eligible Inventory end records itemizing and describing
the kind, type, quality, and quantity of Inventory, Borrower's Inventory costs
and selling prices, and the daily withdrawals and additions to Inventory.
Records related to Inventory are or will be located at ______. The above is an
accurate and complete list of all locations at which Borrower keeps or maintains
business records concerning Xxxxxxxx's collateral.
Collateral Schedules. Concurrently with the execution and delivery of
this Agreement, Borrower shall execute and deliver to Lender schedules of
Accounts and Inventory and schedules of Eligible Accounts and Eligible Inventory
in form and substance satisfactory to the Lender. Thereafter supplemental
schedules shall be delivered according to the following schedule:
a Representations and Warranties Concerning Accounts. With respect to the
Accounts, Borrower represents and warrants to Lender:
(1) Each Account represented by Borrower to be an Eligible Account for
purposes of this Agreement conforms to the requirements or the definition of an
S Eligible Account;
(2) All Account information listed on schedules delivered to Lender
will be true and correct, subject to immaterial variance; and
(3) Lender, its assigns, or agents shall have the right at any time and
at Xxxxxxxx's expense to inspect, examine, and audit Xxxxxxxx's records I; and
to confirm with Account Debtors the accuracy of such Accounts.
29
Representations and Warranties Concerning Inventory. With respect to
the inventory, represents and warrants to Lender: (1) All inventory represented
by borrower to be Eligible Inventory for purposes of this agreement conforms to
the requirements of the definition of Eligible inventory represented by Borrower
to be Eligible Borrower;
inventory, (2) All Inventory values listed on schedules delivered to
Lender will be true and correct, subject to immaterial variance; (3) The value
of the Inventory will be determined on a consistent accounting basis; (4) Except
as agreed to the contrary by Xxxxxx in writing, all Eligible Inventory is now
and at all times hereafter will be in Borrower's physical possession and shall
not be held by others on consignment, sale on
approval, or sale or return; (5) Except as reflected in the Inventory
schedules delivered to Lender, all Eligible Inventory is now and at all times
hereafter will be of good and merchantable quality, free from defects; (6)
Eligible Inventory is not now end will not at any time hereafter be stored with
a bailee, warehouseman, or similar party without Lender's prior written consent,
and, in such event, Borrower will concurrently at the time of bailment cause any
such bailee, warehouseman, or similar party to issue and deliver to Lender, in
form acceptable to Lender, warehouse receipts in Lender name evidencing the
storage of Inventory; and (7) Lender, its assigns, or agents shall have the
right at any time and at Borrower's expense to inspect and examine the Inventory
and to check and test the same as to quality, quantity, value, and condition.
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 or all of the conditions set
forth in this Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following
documents for the Loan: (1) the Note; (2) Security Agreements granting to Lender
security interests in the Collateral, (3) financing statements perfecting
Lender's Security Interests; (4) evidence of insurance as required below; (5)
together with all such Related Documents as Lender may require for the Loan; all
in form and substance satisfactory to Lender end Lender's counsel.
30
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.
Fees and Expenses Under This Agreement. Borrower shall have paid to
Lender all fees, costs, and expenses specified in this Agreement and the Related
Documents as are then due and payable.
Representations and Warranties. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document or
certificate delivered to Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement or
under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to
Lender, as of the date of this Agreement, as of the date of each disbursement of
loan proceeds, as of the date of any renewal, extension or modification of any
Loan, and at all times any Indebtedness exists:
Organization. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing under and
by virtue of the laws of the State of Idaho. Borrower is duly authorized to
transact business in the State of Washington and all other states in which
Borrower is doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign corporation in all states in which the failure to so qualify would have
a material adverse effect on its business or financial condition. Borrower has
the full power and authority to own its properties and to transact the business
in which it is presently engaged or presently proposes to engage. Borrower
maintains its principle office at 0000 XXXX XXXXXXXX, XXXXXXX, XX. Unless
Borrower has designated otherwise in writing, this is the principle office at
which Borrower keeps its books and records including its records concerning the
Collateral. Borrower will notify Lender of any change in the location of
Xxxxxxxx's principle office. Borrower shall do all things necessary to preserve
and to keep in full force and effect its existence, rights end privileges, and
shall comply with all regulations, rules, ordinances, statutes, orders and
decrees of any governmental Or quasi-governmental authority or court applicable
to Borrower and Xxxxxxxx's business activities.
Assumed Business Names. Xxxxxxxx has filed or recorded all documents or
filings required by law relating to all assumed business names used by Xxxxxxxx.
Excluding the name of Xxxxxxxx, the following is a complete list of all assumed
business names under which Borrower does business: None.
31
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 Xxxxxxxx's financial statements supplied
to Xxxxxx truly and completely disclosed Xxxxxxxx's financial condition as of
the date of the statement, and there has been no material adverse change in
Xxxxxxxx'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 Xxxxxxxx's financial statements or in writing to Lender and as
accepted by Xxxxxx, and except for property tax liens for taxes not presently
due and payable, Borrower owns and has good title to all of Borrower's
properties free and clear of all Security Interests, and has not executed any
security documents or financing statements relating to such properties. All of
Xxxxxxxx's properties are titled in Borrower's legal name, and Xxxxxxxx has not
used, or filed a financing statement under, any other name for at least the last
five (5) years.
Hazardous Substances. Except as disclosed to and acknowledged by Xxxxxx
in writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of 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
32
by Xxxxxx 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 end 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 Xxxxxx's acquisition of any interest
in any of the Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes)
against Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been disclosed
to and acknowledged by Xxxxxx in writing.
Taxes. To the best of Xxxxxxxx's knowledge, all of Xxxxxxxx's tax
returns and reports that are or were required to be filed, have been filed, and
all taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith in the
ordinary course or business and for which adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in
writing, Xxxxxxxx has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting any
of the Collateral directly or indirectly securing repayment of Borrower's Loan
and Note, that would be prior or that may in any way be superior to Xxxxxx's
Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof, as well as
upon their successors, representatives and assigns, and are legally enforceable
in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that,
so long as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Xxxxxx in writing of
(1) all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations, administrative
33
proceedings or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial condition
of any Guarantor.
Financial Records. Maintain its books and records in accordance with
GAAP, applied on a consistent basis, and permit Xxxxxx to examine and audit
Xxxxxxxx's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Xxxxxxxx's balance sheet and
income statement for the year ended, audited by a certified public accountant
satisfactory to Lender.
Interim Statements. As soon as available, but in no event later than 15 days
after the end of each fiscal quarter, Xxxxxxxx's balance sheet and profit and
loss statement for the period ended, prepared by Xxxxxxxx.
Additional Requirements. BANK REQUIRES RECEIPT OF QUARTERLY INVENTORY LISTINGS,
MONTHLY BORROWING BASE CERTIFICATES AND A/R & A/P AGINGS QUARTERLY.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements, as
Xxxxxx may request from time to time.
Financial Covenants and Ratios. Comply with the following covenants and ratios:
Working Capital Requirements. Maintain Working Capital in excess of
$1,500,000.00. In addition, Borrower shall comply with the following working
capital ratio requirements:
CURRENT RATIO Ratio. Maintain a ratio of CURRENT RATIO in excess of 1.500 to
1.000. The term "Current Ratio" means Borrower's total Current Assets divided by
Borrower's total Current Liabilities. This liquidity ratio will be evaluated as
of year-end.
Tangible Net Worth Requirements. Maintain a minimum Tangible Net Worth of not
less than: $2,200,000.00. In addition, Borrower shall comply with the following
net worth ratio requirements:
DEBT EQUITY RATIO Ratio. Maintain a ratio of DEBT EQUITY RATIO below 2.000 to
1.000. This leverage ratio will be evaluated as of year-end.
Other Requirements. FIXED ASSET LIMITATION = $250,000.00.
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 Xxxxxx, will deliver
to Lender from 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 ten (10) 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
34
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 Xxxxxxxx's
business operations, unless specifically consented to the contrary by Xxxxxx in
writing.
Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes governmental
charges, levies, and liens, of every kind and nature, imposed upon Borrower or
its properties, income, or profits, prior to the date on which penalties would
attach, and all lawful claims that, if unpaid, might become a lien or charge
upon any of Borrower's properties, income, or profits.
Performance. Perform and comply, in a timely manner, with all terms, conditions,
and provisions set forth in this Agreement, in the Related Documents, and in all
other instruments and agreements between Borrower and Lender. Borrower shall
notify Xxxxxx immediately in writing of any default in connection with any
agreement.
Operations. Maintain executive and management personnel with substantially the
same qualifications and experience as the present executive and management
personnel; provide written notice to Lender of any change in executive and
management personnel; conduct its business affairs in a reasonable and prudent
manner.
Environmental Studies. Promptly conduct and complete, at Borrower's expense, all
such investigations, studies, samplings and testings as may be requested by
Lender or any governmental authority relative to any substance, or any waste or
by-product of any substance defined as toxic or a hazardous substance under
applicable federal, state, or local law, rule, regulation, order or directive,
at or affecting any property or any facility owned, leased or used by Borrower.
Compliance with Governmental Requirements. Comply with all laws, ordinances, and
regulations, now or hereafter in effect, of all governmental authorities
applicable to the conduct of Borrower's properties, businesses and operations,
and to the use or occupancy of the Collateral, including without limitation, the
Americans with Disabilities Act. Borrower may contest in good faith any such
law, ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Borrower has notified Lender in
writing prior to doing so and so long as, in Xxxxxx's sole opinion, Xxxxxx's
interests in the Collateral are not jeopardized. Lender may require Borrower to
post adequate security or a surety bond, reasonably satisfactory to Lender, to
protect Xxxxxx's interest.
Inspection. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Xxxxxxxx's other
properties and to examine or audit Xxxxxxxx's books, accounts, and records and
to make copies and memoranda of Xxxxxxxx's books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
35
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.
Compliance Certificates. Unless waived in writing by Xxxxxx, provide Lender
within ten (10) days after the end of each month, with a certificate executed by
Xxxxxxxx's chief financial officer, or other officer or person acceptable to
Lender, certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and further
certifying that, as of the date of the certificate, no Event of Default exists
under this agreement.
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 Assurance. 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.
Xxxxxx's Expenditures. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to ) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Xxxxxxxx. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the
normal course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money, including
capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant a
security interest in, or encumber any of Borrower's assets (except as allowed as
Permitted Liens), or (3) sell with recourse any of Borrower's accounts, except
to Xxxxxx.
36
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged, (2)
cease operations, liquidate, merge, transfer, acquire or consolidate with any
other entity, change its name, dissolve or transfer or sell Collateral out of
the ordinary course of business, or (3) pay any dividends on Borrower's stock
(other than dividends payable in its stock), provided, however that
notwithstanding the foregoing, but only so long as no Event of Default has
occurred and is continuing or would result from the payment of dividends, if
Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue
Code of 1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the shareholders
to pay income taxes and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from their status as
Shareholders of a Subchapter S Corporation because of their ownership of sharer
of Borrower's stock, or purchase or retire any of Borrower's outstanding shares
or alter or amend Borrower's capital structure.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance
money or assets, (2) purchase, create or acquire any interest in any other
enterprise or entity, or (3) incur any obligation as surety or guarantor other
than in the ordinary course of business.
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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of seton 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 IRA or Xxxxx accounts, or any trust accounts
for which section would be prohibited by law. Xxxxxxxx authorizes Xxxxxx, to the
extent permitted by applicable law, to charge or set on all sums owing on the
Indebtedness against any and all such accounts, and, at Xxxxxx's option, to
administratively freeze all such accounts to allow Lender to protect Xxxxxx's
charge and seton rights provided in this paragraph.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement: Payment Default. Xxxxxxxx fails to make any payment when due under
the Loan.
Other Defaults. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in any of
37
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.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Agreement,
the Note, or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Insolvency. The dissolution or termination of Xxxxxxxx's existence as a
going business, the insolvency of Xxxxxxxx, the appointment of a receiver for
any part of Xxxxxxxx's property, any assignment for the benefit of creditors,
any type of creditor workout, or the commencement of any proceeding under any
bankruptcy or insolvency laws by or against Borrower.
Defective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or lien)
at any time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help, repossession
or any other method, by any creditor of Borrower or by any governmental agency
against any collateral securing the Loan. This includes a garnishment of any or
Borrower's accounts, including deposit accounts, with Lender. However, this
Event of Default shall not apply if there is a good faith dispute by Xxxxxxxx as
to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding end 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 Xxxxxx believes the prospect of payment or performance
of the Loan is impaired.
Right to Cure. If any default, other than a default on Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given a
notice of a similar default within the preceding twelve (12) months, it may be
cured (and no Event of Default will have occurred) if Borrower or Grantor, as
the case may be, after receiving written notice from Lender demanding cure of
38
such default: (1) cure the default within ten (10) days; or (2) if the cure
requires more than ten (10) days, immediately initiate steps which Lender deems
in Lender's sole discretion to be sufficient to cure the default and thereafter
continue and complete all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursement), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's rights
and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Xxxxxx to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Xxxxxx's
right to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the party or
parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Xxxxxxxx agrees to pay upon demand all of
Xxxxxx's costs and expenses, including Xxxxxx's attorneys' fees and Xxxxxx's
legal expenses, incurred in connection with the enforcement of this Agreement.
Lender may hire or pay someone else to help enforce this Agreement, and Borrower
shall pay the costs and expenses or such enforcement. Costs and expenses include
Xxxxxx's attorneys' fees end legal expenses whether or not there is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Borrower also
shell pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Consent to Loan Participation. Xxxxxxxx agrees and consents to Xxxxxx's
sale or transfer, whether now or later, of one or more participation interests
in the Loan to one or more purchasers, whether related or unrelated to Lender.
Lender may provide, without any limitation whatsoever, to any one or more
purchasers, or potential purchasers, any information or knowledge Lender may
39
have about Borrower or about any other matter relating to the Loan, and Borrower
hereby waives any rights to privacy Borrower may have with respect to such
matters. Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of such
participation interests. Xxxxxxxx also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such
interests in the Loan and will have all the rights granted under the
participation agreement or agreements governing the sale of such participation
interests. Borrower further waives all rights of offset or counterclaim that it
may have now or later against Lender or against any purchaser of such a
participation interest end unconditionally agrees that either Lender or such
purchaser may enforce Xxxxxxxx's obligation under the Loan irrespective of the
failure or insolvency or any holder of any interest in the Loan. Xxxxxxxx
further agrees that the purchaser of any such participation interests may
enforce its interests irrespective of any personal claims or defenses that
Borrower may have against Xxxxxx.
Governing Law. This Agreement will be governed by, construed and
enforced in accordance with federal law and the laws of the State of Washington.
This Agreement has been accepted by Xxxxxx in the State of Washington.
Choice of Venue. if there is a lawsuit, Xxxxxxxx agrees upon Xxxxxx's
request to submit to the jurisdiction of the courts or SPOKANE County, State of
Washington.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and signed by
Xxxxxx. No delay or omission on the part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver by Xxxxxx of a
provision of this Agreement shall not prejudice or constitute a waiver of
Lender's right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Xxxxxx, nor any course of
dealing between Xxxxxx and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any of Lender's rights or of any of Borrower's or any
Grantor's obligations as to any future transactions. Whenever the consent of
Lender is required under this Agreement, the granting of such consent by Lender
in any instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Notices. Subject to applicable law, and except for notice required or
allowed by law to be given in another manner, 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,
40
or, if mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses shown
near the beginning of this Agreement. Any party may change its address for
notices under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Xxxxxxxx agrees to keep Xxxxxx informed at all
times of Xxxxxxxx's current address. Subject to applicable law, and except for
notice required or allowed by law to be given in another manner, 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 or this Agreement
shall not affect the legality, validity or enforceability of any other provision
of this Agreement.
limitation any representation, warranty or covenant, the word
"Borrower" as used in this Agreement shall include all of Borrower's
subsidiaries end Subsidiaries and Affiliates of Borrower. To the extent the
context of any provisions of this Agreement makes it appropriate, including
without
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 contained by or on
behalf of Borrower shall bind Xxxxxxxx's successors and assigns end shall inure
to the benefit of Lender and its successors and assigns. Borrower shall not,
however, have the right to assign Xxxxxxxx's rights under this Agreement or any
interest therein, without the prior written consent of Lender.
Survival of Representations and Warranties. Xxxxxxxx understands and
agrees that in extending Loan Advances, Xxxxxx is relying on all
representations, warranties, and covenants made by Borrower in this Agreement or
in any certificate Or Other instrument delivered by Borrower to
S Lender under this Agreement or the Related Documents. Xxxxxxxx further
agrees that regardless of any investigation made by Xxxxxx, all such
representations, warranties and covenants will survive the extension of Loan
Advances and delivery to Lender of the Related Documents, shall be continuing in
41
nature, shall be deemed made and redated by Xxxxxxxx at the time each Loan
Advance is made, and shall remain in full force and effect until such time as
Xxxxxxxx's Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of
this Agreement.
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 or
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 1; 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:
Account. The word "Account" means a trade account, account receivable,
other receivable, or other right to payment for goods sold or services rendered
owing to Borrower (or to a third party grantor acceptable to Lender).
Advance. The word "Advance" means a disbursement of Loan funds made, or
to be made, to Borrower or on Borrower's behalf under the terms and conditions
of this Agreement
Agreement. The word "Agreement" means this Business Loan Agreement
(Asset Based), as this Business Loan Agreement (Asset Based) may be amended or
modified from time to time, together with all exhibits and schedules attached to
this Business Loan Agreement (Asset Based) from time to time.
Borrower. The word "Borrower" means THE COEUR D'ALENES COMPANY, and all
other persons and entities signing the Note in whatever capacity.
Borrowing Base. The words "Borrowing Base" mean, as determined by
Lender from time to time, the lesser of (1) $1,500,000.00 or(2) the sum of (a)
80.000% of the aggregate amount of Eligible Accounts, plus (b) 35.000% of the
aggregate amount of Eligible Inventory.
Business Day. The words "Business Day" mean a day on which commercial
banks are open in the State of Washington.
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,
42
lease or consignment intended as a security device, or any other security or
lien interest whatsoever, whether created by law, contract, or otherwise. The
word Collateral also includes without limitation ail collateral described in the
Collateral section of this Agreement.
_ Eligible Accounts. The words "Eligible Accounts" mean at any time, all
of Borrower's Accounts which contain selling terms and conditions acceptable to
Lender. The net amount of any Eligible Account against which Borrower may borrow
shall exclude all returns, discounts, credits, end offsets of any nature. Unless
otherwise agreed to by Xxxxxx in writing, Eligible Accounts do not include:
(1) Accounts with respect to which the Account Debtor is employee or
agent or Borrower.
(2) Accounts with respect to which the Account Debtor is a subsidiary
of, or affiliated with Borrower or its shareholders, officers, or directors.
(3) Accounts with respect to which goods are placed on consignment,
guaranteed sale, or other terms by reason of which the payment by the Account
Debtor may be conditional.
(4) Accounts with respect to which Borrower is or may become liable to
the Account Debtor for goods sold or services rendered by the Account Debtor to
Borrower.
(5) Accounts which are subject to dispute, counterclaim, or setoff.
(6) Accounts with respect to which the goods have not been shipped or
delivered, or the services have not been rendered, to the Account Debtor.
O Accounts with respect to which Lender, in its sole discretion, deems
the creditworthiness or financial condition of the Account Debtor to be
unsatisfactory.
(8) Accounts of any Account Debtor who has filed or has had filed
against it a petition in bankruptcy or an application for relief under any
provision of any state or federal bankruptcy, insolvency, or debtor-in-relief
acts; or who has had appointed a trustee, custodian, or receiver for the assets
of such Account Debtor; or who has made an assignment for the benefit of
creditors or has become insolvent or fails generally to pay its debts (including
its payrolls) as such debts become due.
(9) Accounts which have not been paid in full within 30 DAY from the
invoice date.
Eligible Inventory. The words "Eligible Inventory" mean at any time,
all of Borrower's Inventory as defined below except:
(1) Inventory which is not owned by Borrower free and clear or all
security interests, liens, encumbrances, and claims of third parties. (2)
inventory which Lender, in its sole discretion, deems to be obsolete, unsalable,
damaged, defective, or unfit for further processing. (3) BANK WILL ALLOW 35% OF
DISTRIBUTION INVENTORY ONLY.
43
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, end 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, at 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.
Expiration Date. The words "Expiration Date" mean the date of
termination of Xxxxxx's commitment to lend under 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 pert 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.
Inventory. The word "inventory" means all or Borrower's raw materials,
work in process, finished goods, merchandise, parts and supplies, of every kind
and description, and goods held for sale or lease or furnished under contracts
of service in which Borrower now has or hereafter acquires any right, whether
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held by Xxxxxxxx or others, and all documents of title, warehouse receipts,
bills of lading, and all other documents of every type covering all or any part
of the foregoing. Inventory includes inventory temporarily out of Xxxxxxxx's
custody or possession and all returns on Accounts.
Lender. The word "Lender" means Inland Northwest Bank, 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 Xxxxxxxx in the
principal amount of $1,500,000.00 dated February 20, 2001, together with all
renewals of, extensions of, modifications of, refinancings of, consolidations
of, and substitutions for the note or credit agreement.
Permitted Liens. The words "Permitted Liens" mean (1) liens and
security interests securing Indebtedness owed by Borrower to Lender; (2) liens
for taxes, assessments, or similar charges either not yet due or being contested
in good faith; (3) liens of materialmen, mechanics, warehouseman, or carriers,
or other like liens arising in the ordinary course of business and securing
obligations which are not yet delinquent; (4) purchase money liens or purchase
money security interests upon or in any property acquired or held by Borrower in
the ordinary course of business to secure indebtedness outstanding on the date
of this Agreement or permitted to be incurred under the paragraph of this
Agreement tiled "Indebtedness and Liens"; (5) liens and security interests
which, as of the date of this Agreement, have been disclosed to and approved by
the Lender in writing; and (6) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Xxxxxxxx's assets.
Primary Credit Facility. The words "Primary Credit Facility" mean the
credit facility described in the Line of Credit section of this 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.
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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.
Tangible Net Worth. The words Tangible Net Worth" mean Borrower's total
assets excluding all intangible assets (i.e., goodwill, trademarks, patents,
copyrights, organizational expenses, and similar intangible items, but including
leaseholds and leasehold improvements) less total debt.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS
LOAN AGREEMENT (ASSET BASED) AND XXXXXXXX AGREES TO ITS TERMS. THIS BUSINESS
LOAN AGREEMENT (ASSET BASED) IS DATED FEBRUARY 20, 2001.
BORROWER:
THE COEUR D'ALENES COMPANY
LENDER:
INLAND NORTHWEST
By:
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