FIRST CAPITAL GROUP
EQUIPMENT LOAN AND SECURITY AGREEMENT
BORROWER: WORLD WIDE STONE CORPORATION
0000 XXXXX 00XX XXXXXX
XXXXXXX, XXXXXXX 00000
LENDER: FIRST CAPITAL GROUP, INC.
000 XXXXX X.X., XXXXX 000
XXXXXXXXXXX, XXX XXXXXX 00000
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This Equipment Loan and Security Agreement ("Agreement") is between First
Capital Group, Inc. ("Lender") and the party, or parties, designated below as
Borrower ("Borrower"). Lender and Borrower agree as follows:
SECTION 1. AGREEMENT TO LEND.
A. Lender agrees to make the loan (the "Loan") described in the Note/Xxxxxx
(the "Note") attached hereto, in the amount of US$1,080,000.00 ("Note") and
Borrower agrees to repay such loan as set forth in the Note.
B. There may be one or more advances under the Loan. The total of all
advances with respect to the Loan shall not exceed the lesser of (i)
US$1,080,000.00, or (ii) the purchase price of the Collateral. An advance may be
made upon delivery to Lender of a written request for advance in a form
acceptable to Lender executed by Borrower (a "Request for Advance").
C. The Note shall be unconditionally guaranteed by Borrower's wholly owned
subsidiary, Sociedad Xxxxxx Sierra, S.A. de C.V., a Mexican corporation
domiciled in Durango, Durango, Mexico ("Guarantor").
D. The purpose of the Loan is to provide Borrower funds to purchase
equipment which Borrower intends to lease to Guarantor, and intends to place in
a factory of Guarantor in Durango, Durango, Mexico. With respect to any advance
hereunder, until all the Collateral is physically located in Mexico, so as to
perfect the Lender's security interest pursuant to the Deposit and Pledge
Agreement described hereinafter, Lender shall be entitled, at Lender's sole
discretion, to advance only a percentage of the purchase price of the Item.
Additionally, Lender shall be entitled, at Lender's discretion, to require only
one advance under the Loan, and to require that the proceeds of the Loan be
maintained in an interest bearing account, interest to accrue to Borrower, until
the requirements for advance hereunder are met.
SECTION 2. GRANT OF SECURITY INTEREST.
To secure performance of all Borrower's obligations under the Agreement,
Borrower hereby grants Lender a purchase money security interest in the property
and any additional security described in the Note and in the Pledge and Deposit
Agreement attached hereto, together with all increases, substitutions, parts,
equipment, accessories, supplies, improvements, additions and accessions now or
hereafter affixed thereto or used in connection therewith, and all proceeds and
products thereof (referred to collectively as the "Collateral" and individually
as an "Item"). Unless specifically released by Lender, each Item shall secure
Borrower's obligations under the entire Note and Loan.
SECTION 3. PAYMENTS; DEFAULT RATE.
A. Borrower shall make payments to Lender at the address indicated above in
the amounts and on the dates (each a "Payment Date") specified herein and in the
Note.
B. In the event any amount payable under the Agreement shall not be paid
within fifteen (15) days when due, Borrower shall pay to Lender interest on such
account until paid for the period of delinquency at the rate of thirteen percent
(13%) per annum (the "Default Rate"), however not to exceed the maximum rate
allowed by law.
SECTION 4. PREPAYMENT.
A. Provided no Event of Default shall have occurred and be continuing,
Borrower shall have the right, upon not less than thirty days prior written
notice to Lender, to fully prepay a Loan as of the next succeeding Payment Date
following such notice by paying Lender: (1) the then outstanding balance of
principal plus accrued and unpaid interest; and (2) a prepayment fee in the
amount of five percent (5%) of the outstanding principal balance if paid during
the first year after the date of the loan, four percent (4%) of the outstanding
principal balance if paid during the second year after the date of the loan,
three percent (3%) of the outstanding principal balance if paid during the third
year after the date of the loan, two percent (2%) of the outstanding principal
balance if paid during the fourth year after the date of the loan, or one
percent (1%) of the outstanding principal balance if paid during the fifth year
after the date of the loan.
SECTION 5. CONDITIONS PRECEDENT.
Lender may refuse to make any advance if any Event of Default or any event
which, with the passage of time or the giving of notice or both, that would
constitute an Event of Default shall have occurred and be continuing. The
obligation of the Lender to make any advance is further subject to Borrower
providing the following, at its expense, in form and substance satisfactory to
Lender.
A. Articles of incorporation and by-laws of Borrower, and resolutions of
the board of directors, each certified by the secretary or an assistant
secretary, duly authorizing the Loan and grant of security interest hereunder
and the execution, delivery and performance of this Loan and the Note;
B. Evidence of compliance with the insurance provisions hereof;
C. If requested by Lender, a favorable written opinion of counsel for
borrower as to each matter set forth in Section 6 and as to other matters as
Lender may reasonably request;
D. A completed and signed Note and Request for Advance;
E. Evidence that Borrower has title to the Collateral relating to such
advance free of all security interests or encumbrances or, if such security
interests or encumbrances exist, waivers, releases or subordinations thereof;
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F. Executed Pledge and Deposit Agreement, financing statements and other
documents necessary to perfect Lender's security interest in the Collateral
relating to such advance including copies of such documents reflecting the
filing of such documents with the appropriate public officers;
G. With respect to advances for the purchase of equipment, Borrower shall
have provided to Lender a purchase order, delivery ticket, invoice or other
written evidence satisfactory to Lender containing a detailed description of
such equipment, the exact cost thereof and the scheduled delivery date;
H. Borrower shall have delivered and/or executed, as requested by Lender,
such other documents or items as Lender or its counsel may reasonably require as
may be necessary or convenient to ensure preservation of the rights of Lender
under the Loan documents;
I. As of the date of each advance, Lender shall not have determined, in its
sole discretion, that neither Lender nor Guarantor has suffered a material
adverse change in its financial condition; and
J. Such other documents as Lender may reasonably request.
SECTION 6. BORROWER'S REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that:
A. The proceeds of each Loan will be used solely in the conduct of
Borrower's business.
B. Upon each advance by Lender under any Loan, Borrower will have title to
the Collateral relating to such advance, and other than Lender's security
interests, there will be no liens, security interests or encumbrances against
such Collateral, and such Collateral will be personal property. Such Collateral
will not become real property or inventory or, without the prior written consent
of Lender, become fixtures.
C. Borrower and Guarantor are each fully organized and in good standing in
the state of its incorporation and is duly qualified to do business where such
qualification is necessary to carry on its present business operations.
D. This Agreement has been duly authorized by Borrower, and the execution,
delivery and performance thereof do not require any stockholder approval, do not
require the approval of or the giving of notice to any governmental authority,
do not contravene any law or Borrower's certificate or articles of incorporation
or by-laws and do not contravene or constitute a default under by indenture or
others agreement to which Borrower is a party or by which it is bound.
E. This Agreement is a legal, valid and binding obligation of Borrower,
enforceable in accordance with its terms.
F. There are no pending or threatened proceedings before any court or other
body or any judgments which may materially adversely affect Borrower or
Guarantor.
G. The balance sheet and related earnings statement of Borrower for its
most recent fiscal year have been furnished to Lender and are in accordance with
generally accepted accounting principles consistently applied, and there has
been no material adverse change in Borrower's condition or operations.
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H. Borrower shall not dissolve or consolidate with or merge into any other
entity or transfer or lease substantially all of its assets to any third party
without prior written consent of Lender. Borrower will immediately give written
notice to Lender of any change in its principal place of business.
SECTION 7. SALE OF COLLATERAL, MORTGAGES, LIENS, ETC.
So long as any obligations of Borrow under the Agreement remain
unsatisfied, Borrower will not sell, transfer, lease, assign or otherwise
dispose of or relinquish possession of the Collateral (except to Guarantor) and
will not create, incur, assume or allow to exist, any security interest, lien,
encumbrance or claim on or with respect to the Collateral title thereto or any
interest therein except: (a) the rights of Lender and Borrower herein provided;
(b) encumbrances which result from claims against Lender; and (c) liens for
taxes either not yet due or being appropriately contested in good faith.
Borrower will promptly take such action as may be necessary to discharge any
encumbrance not permitted hereunder.
SECTION 8. TAXES.
Borrower shall pay when due and indemnify Lender against all sales, use,
personal property or other taxes, charges, or withholding of any nature
(together with any penalties, fines or interest) imposed against the Lender,
Borrower or the Collateral by any government or taxing authority (including but
not limited to Mexican government and taxing authority) with respect to the
Collateral of the purchase, ownership, delivery, possession, use or disposition
thereof, or the rentals, receipts or earnings arising therefrom, or with respect
to any Loan (excluding taxes on or measured solely by Lenders' net income)
unless, and to the extent only, that any such tax, charge or withholding is
being appropriately contested by Borrower in good faith.
SECTION 9. USE AND MAINTENANCE OF COLLATERAL.
A. Borrower shall comply with all governmental laws and requirements with
respect to the use and maintenance of each Item. Borrower shall retain
possession of each Item. Unless Lender shall first otherwise consent in writing,
Borrower shall keep each Item at the factory of Borrower's subsidiary, Sociedad
Xxxxxx Sierra, S.A. de C.V., in Durango, Durango, Mexico. If any Item is of a
type normally used in more than on location, Borrower will give prompt written
notice to Lender of any use of such Item in any location other than the one at
which Borrower shall have previously advised Lender such Item will be used.
B. Borrower will use Collateral in accordance with the manufacturers'
instructions, for the purposes which the manufactures intend and for business or
commercial purposes only and not for personal, family or household use.
C. Borrower, at its own expense, will repair and maintain the Collateral to
keep in as good condition as on the execution of the Note, ordinary wear and
tear excepted. Borrower may add parts or accessories to any Item if such
addition does not impair the value or warranties of such Item and is really
removable without causing material damage.
SECTION 10. INSPECTION OF COLLATERAL.
Upon request, Borrower shall advise Lender of the location of each Item and
shall, at any reasonable time, make each Item and Borrower's records pertaining
to it available for inspection.
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SECTION 11. LOSS OR DESTRUCTION.
If any Item, shall be lost, stolen damaged beyond repair or permanently
rendered unfit for use for any reason (an "Event of Loss"), Borrower shall,
within ten (10) days, give written notice to Lender of the Event of Loss and the
facts pertaining thereto. Borrower shall, at Lender's option, either (a) replace
such Item with collateral acceptable to Lender within thirty (30) days after the
Event of Loss and such replacement shall automatically become the Collateral; or
(b) on the first Payment Date at least twenty (20) days after the Event of Loss,
pay Lender an amount equal to the outstanding principal balance with respect to
the applicable Loan multiplied by the original purchase price of such Item
divided by the total original purchase price of all Items (the "Casualty
Value"). The Casualty Value received by Lender will be applied to Borrower's
obligation, whether or not matured, in any order, at Lender's option.
SECTION 12. INSURANCE
At its own expense, Borrower shall maintain property insurance acceptable
to Lender with respect to all Items in an amount not less than the amount
specified in the applicable Note and Schedule. Each insurance policy shall name
Lender as loss payee. Each policy shall provide that it may be altered or
canceled by the insurer only after thirty (30) days prior written notice to
Lender. Borrower shall cause evidence satisfactory to Lender showing the
existence of such insurance to be delivered to Lender upon demand and thirty
(30) days prior to expiration or cancellation showing renewal or replacement of
such policy. In the event Borrower shall fail to maintain required insurance,
Lender shall have the right, but not the duty, to obtain such insurance as
Lender deems necessary, and Borrower shall reimburse Lender for the payment of
all premiums therefor together with interest from the date of Lender's payment
at the rate of eighteen percent (18%) per annum or the maximum allowed by law,
whichever is lower. Lender shall have full power to collect all insurance
proceeds and to apply them at its option to any obligation secured hereby,
whether or not matured, or to the replacement or repair of the Collateral.
Borrower shall indemnify and hold harmless Lender and any assignee or
transferee of Lender and their agents and employees from and against all claims,
liability (including strict products liability and strict liability in tort),
costs, fees or expenses (including attorney's fees) relating to the Collateral
or any part thereof, including, without limitation, the construction, purchase,
delivery, installation or ownership of the Collateral or as a result of the use,
maintenance, repair, replacement, operation or condition thereof (whether
defects are latent or discoverable by Lender or by Borrower) or by reason or as
a result of any act or omission of Borrower, its agents or employees. This
Section shall be effective from the date the first Item is ordered and shall
remain in effect notwithstanding the full payment of any Loan or the release of
Lenders' security interest in any Collateral. Borrower shall give Lender prompt
notice of any claim or liability indemnified against.
SECTION 13. ASSIGNMENT.
Lender may at any time, without notice to Borrower, transfer, assign or
grant a security interest in this Agreement, any Loan, its interest in any Item,
or any sums due or to become due hereunder, and Lender's transferee and assignee
shall have all of Lender's rights and remedies hereunder. Borrower shall not,
without the prior written consent of Lender, assign any of its rights or
delegate any of its duties hereunder.
SECTION 14. EVENTS OF DEFAULT; REMEDIES.
A. EVENTS OF DEFAULT. The following shall constitute Events of Default
under this Agreement:
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(i) Failure to Pay. Borrower shall fail to make any required payment
when due;
(ii) Other Breaches. Borrower shall fail to perform or observe any
other obligation, covenant or condition under this Agreement or in any
other related documents or in any other agreement between Lender and
Borrower. If such a failure is curable and if Borrower has not been given a
prior notice of a breach of the same provision in this Agreement, it may be
cured (and no Event of Default will have occurred) if Borrower, after
receiving written notice from Lender demanding cure of such failure (a)
cures the failure within ten (10) days; or (b) if the cure requires more
than ten (10) days, immediately initiates steps sufficient to cure the
failure and thereafter continues and completes all reasonable and necessary
steps sufficient to produce compliance as soon as reasonably practical;
(iii) Insurance. Borrower shall fail to maintain required insurance;
(iv) Statements. Any representation or warranty made by Borrower
herein, in any Note and Schedule or any other document in connection
herewith shall be incorrect at any time in any material respect;
(v) Creditor Proceedings. Borrower's insolvency, bankruptcy or
assignment for the benefit of creditors, or the appointment of or
Borrower's consent to the appointment of a trustee or receiver for the
Borrower or a substantial part of its property; or
(vi) Change in Financial Condition. An adverse change in Borrower's
financial condition as a result of which Lender, in good faith, deems
itself or any Item to be insecure;
(vii) Default by Guarantor. The occurrence of any of the foregoing
Events of Default with regard to any guarantor of any of Borrower's
obligations under the Loan or Note; or
B. Lender's Remedies: At any time after the occurrence of an Event of
Default, Lender shall have the remedies of a secured party under the Uniform
Commercial Code and other applicable law and may also exercise one or more of
the following remedies:
(i) Declare all unpaid amounts hereunder and under any or all Loans to
be immediately due and payable , whereupon interest on the outstanding
balance under each Loan (the "Accelerated Balance") shall be calculated
from the date of such Event of Default, both before and after Judgment, at
the Default Rate or the maximum rate allowed by law, whichever is lower;
(ii) Recover from Borrower as liquidated damages for loss of the
bargain and for internal cost, and not as a penalty, five percent (5%) of
the Accelerated Balance;
(iii) Proceed by court action to enforce performance by Borrower of
this Agreement and/or to recover damages for the breach thereof; or
(iv) Require Borrower, at Lender's request and at Borrower's own cost,
to promptly deliver possession of the Collateral to Lender in such manner
and to such place as Lender shall direct, or Lender may at any hour,
without notice to Borrower and without liability except for malicious acts
by its agents, enter upon Borrower's premises or any other premises and
take possession of or render unusable any Item and attachments thereon,
whether or not part of the Collateral, and hold, lease, or sell at public
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or private sale any such Item and attachments. If Lender leases or sells
the Collateral, Lender shall have the right to recover from Borrower any
deficiency remaining after the application of the proceeds to the amounts
due under this Agreement.
C. In addition, to any amounts recoverable under Section 14B above, Lender
shall be entitled to recover all expenses and collection costs which Lender
shall have incurred by reason of any Event of Default, including, but not
limited to, salary paid to and expenses incurred by employees and reasonable
attorneys' fees including attorneys' fees on appeal.
D. Lender's remedies shall be cumulative and shall be in addition to all
other remedies at law or in equity. Borrower waives any requirements of law
which might limit any of the remedies herein to the extend permitted by law. No
express or implied waiver of any Event of Default shall be a waiver of any
subsequent Event of Default. Lender's failure or delay in exercising any rights
shall not be a waiver of any such right upon the continuation or recurrence of
any Event of Default. Any single or partial exercise of any right by Lender
shall not exhaust the name or be waiver of any other right.
SECTION 15. RIGHTS TO PERFORM FOR BORROWER.
If Borrower fails to perform any of its agreements contained herein, Lender
may perform them, and all expenses of Lender in connection therewith shall be
payable by Borrower upon demand together with interest at the rate of eighteen
percent (18%) per annum or the maximum allowed by law, whichever is lower.
SECTION 16. FURTHER ASSURANCES, FINANCIAL INFORMATION.
Borrower, at its expense, will promptly execute and deliver to Lender such
documents of further assurance and take such action as Lender may deem advisable
and request in order to carry out the intent of this Agreement and protect
Lender's rights, including without limitation: (a) financing statements and
other documents necessary to protect Lender's security interest in the
Collateral; and (b) reports containing a balance sheet, income statement and
statement of sources and uses of funds prepared by accountants acceptable to
Lender within One Hundred Twenty (120) days after the close of each fiscal year
of Borrower and within forty-five (45) days after the close of each fiscal
quarter.
SECTION 17. NOTICES.
All required notices shall be in writing , and shall be effective when
deposition in the United States mail, first class postage prepaid, addressed to
the address shown above or to such other address as a party shall designate in
writing to the other party.
SECTION 18. GENERAL.
A. Entire Agreement. This Agreement and the security documents executed in
conjunction with this Agreement constitute the entire agreement of the parties
as to its subject matter. None of the parties make any representations or
warranties in connection with this Loan which are not stated in this Loan.
B. Amendments. This Loan may be amended only in writing signed by all
parties to this Loan.
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C. Notice. Notice required under this Loan shall be in writing and will be
deemed given on the earlier of when actually received or three (3) days after
the notice is deposited in the United States mail, certified or registered,
addressed to the appropriate party at the address first set forth above, or any
other address, of which the party to receive notice has notified the other in
writing.
D. Change of Address. Borrower will notify Lender in writing at least
thirty (30) days before changing its principal place of business or chief
executive office.
E. Binding Effects. This Loan benefits and binds Lender and Borrower and
their successors, assigns, heirs and personal representatives.
F. Agreement to Provide Financial Statements. Borrower agrees to provide
financial statements annually, or quarterly, as may reasonably be requested by
Lender throughout the term of the Loan.
G. Limited Power of Attorney. Borrower hereby appoints Lender as its
attorney-in-fact, to execute and file on behalf of Borrower and authorized
Lender to file without Borrower's signature any Uniform Commercial Code
financing statement and amendments Lender deems advisable to secure the
interests of Lender.
H. Joint and Several Liability. If there is more than one Borrower named in
this Loan, the liability of each shall be joint and several.
I. Severability. If a court of competent jurisdiction holds any provision
of this Loan to be unenforceable, all other provisions of this Loan will remain
valid, to the extent consistent with the court's holding.
J. Section Heading. Section headings are for convenience only and have no
independent substantive meaning.
K. Language; Applicable Law. This Agreement is executed in the Spanish and
English languages, both of which shall be binding and constitute one and the
same document, provided, however, that in case of any kind of dispute or
controversy (whether a suit or a preliminary procedure to a suit such as
pre-trial motions and/or injunction proceedings) the Spanish version shall
prevail in the applicable courts in Mexico and the English version shall prevail
in the applicable courts of the State of New Mexico and the United States of
America. This Loan shall be governed by and construed in accordance with the
internal laws of the State of New Mexico, without regard to the conflict of laws
principals thereof.
L. Forum. Borrower hereby irrevocably submits generally and unconditionally
for itself and in respect of its property to the jurisdiction of any state
court, or any United States of America federal court, sitting in Albuquerque,
Bernalillo County, State of New Mexico, United States of America and to the
jurisdiction of any appropriate court sitting in the state and country in which
any of the collateral securing the Loans is located, over any suit, action or
proceeding arising out of or relating to this Agreement or the Indebtedness.
Borrower hereby irrevocably waives, to the fullest extent permitted by law, any
objection that Borrower may now or hereafter have to the laying of venue in any
such court and any claim that any such court is an inconvenient forum.
Notwithstanding the foregoing, Lender and Borrower both expressly agree that in
the event either one of them elects to initiate any legal action or procedure of
any type in Mexico (whether a lawsuit or preliminary to a lawsuit such as
pre-trial motions and/or injunction proceedings) with respect to any controversy
arising from the construction, interpretation and/or enforcement of the terms
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and provisions of any or all of the Loan Documents, the parties expressly and
irrevocably waive any alternative forum that Mexican law grants to them by
virtue of their current or future domicile, to the fullest extent permitted by
article 1093 of the Commerce Code of the Mexican Republic, and, in such a case,
expressly submit themselves to the courts with jurisdiction on commercial or
mercantile disputes in the City of Durango, State of Durango, Republic of
Mexico. Lender and Borrower hereby irrevocably waive, to the fullest extent
permitted by law, any objection that either one of them may now or hereafter
have to the laying of venue in any such court and any claim that any such court
is an inconvenient forum.
M. Judgment Currency. If for the purposes of obtaining a judgment in any
court with respect to any obligation of Borrower under this Agreement or the
other Loan Documents, it becomes necessary to convert any amount due hereunder
or in the Loan Documents into a currency other than U.S. dollar, then such
conversion shall be made at the prevailing spot rate of exchange at the close of
business on the day before the day on which the judgment is given at the place
where such court is located. If there is a change in such rate of exchange
prevailing between the day on which the judgment is given and the date of
payment thereof, Borrower agrees to pay such additional amounts (if any) as may
be necessary to insure that the amount paid on such date is the amount in U.S.
dollar, which when converted at such rate of exchange in effect on the day of
payment, is the amount due under this Agreement or any other Loan Document in
U.S. dollar, as the case may be. Any amount due from Borrower under this
paragraph will be due as separate debt and shall not be affected by or merged
into any judgment being obtained for any other sums due under or in respect of
this Agreement or any Loan Document, as the case may be.
N. Construction. This Loan and the Note shall be construed no more strictly
against one party than the other, regardless of which party drafted the Loan and
corresponding Note.
O. Future Obligations of LENDER. Notwithstanding any provision of this Loan
or any related document to the contrary, LENDER HAS NO OBLIGATION TO MAKE ANY
LOAN TO BORROWER OR TO EXTEND ANY CREDIT TO BORROWER EXCEPT AS PROVIDED IN THE
ATTACHED NOTE OR AS LENDER AND BORROWER MAY AGREE IN WRITING AFTER THE DATE OF
THIS AGREEMENT. IF LENDER MAKES ANY LOAN TO BORROWER OTHER THAN THAT DESCRIBED
IN THE ORIGINAL NOTE ATTACHED TO THIS AGREEMENT, THE TERMS OF THIS AGREEMENT
WILL NOT APPLY UNLESS LENDER AND BORROWER SO AGREE IN WRITING.
P. Waiver. The makers, sureties, guarantors and endorsers of the Note
jointly and severally waive presentment for payment, protest, notice of protest
and notice of non-payment, and consent that the Note or any payment thereunder
may be extended or renewed without demand or notice and further consent ot the
release of any Collateral or party thereof, with or without substitution.
Q. Conflicts. If there are any conflicts between this Agreement and any
Note, or exhibits, attachments, supplements or Addenda thereto or to any
guaranties of any obligations under any Note, or any other document which
incorporates this Agreement, the Agreement shall control.
R. Usury Laws. Borrower, Lender and all other parties to the Loan Documents
intend to conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between Borrower and Lender (or any
other party liable with respect to any indebtedness under the Loan Documents)
are hereby limited by the provisions of this Section which shall override and
control all such agreements, whether now existing or hereafter arising. In no
way, nor in any event or contingency (including but not limited to prepayment,
default, demand for payment, or acceleration of the maturity of any obligation),
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shall the interest taken, reserved, contracted for, charged, chargeable, or
received under this Agreement, the Notes, any of the other Loan Documents, or
otherwise, exceed the maximum amount permitted under applicable law ("Maximum
Amount"). If, from any possible construction of any document, interest would
otherwise be payable in excess of the Maximum Amount, any such construction
shall be subject to the provisions of this Section and such document shall ipso
facto be automatically reformed and the interest payable shall be automatically
reduced to the Maximum Amount, without the necessity of execution of any
amendment or new document. If Lender shall ever receive anything of value which
is characterized as interest under applicable law and which would apart from
this provision be in excess of the Maximum Amount, an amount equal to the amount
which would have been excessive interest shall, without penalty, be applied to
the reduction of the principal amount owing on the indebtedness due and owing
under the Loan Documents in the inverse order of its maturity and not to the
payment of interest, or be refunded to Borrower or the other payor thereof, at
the election of Lender in its sole discretion or as required by applicable law.
The right to accelerate maturity of the Notes or any other indebtedness does not
include the right to accelerate any interest which has not otherwise accrued on
the date of such acceleration, and Lender does not intend to charge or receive
any unearned interest in the event of acceleration. All interest paid or agreed
to be paid to Lender shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of such indebtedness due and owing under
the Loan Documents so that the amount of interest on account of such
indebtedness does not exceed the Maximum Amount. As used in this Section, the
term "applicable law" shall mean the laws of the State of New Mexico or the
federal laws of the United States applicable to this transaction, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future.
S. Further Assurances. Borrower will, on request of Lender (a) promptly
correct any defect, error or omission in any Loan Document; (b) execute,
acknowledge, deliver, procure, record or file such further instruments and do
such further acts deemed necessary, desirable or proper by Lender to carry out
the purposes of the Loan Documents and to identify and subject to the liens and
security interests of the Loan Documents any property intended to be covered
thereby, including any renewals, additions, substitutions, replacements, or
appurtenances to the collateral securing the Notes; (c) execute, acknowledge,
deliver, procure, file or record any document or instrument deemed necessary,
desirable, or proper by Lender to protect the liens or the security interests
under the Loan Documents against the rights or interests of third persons; and
(d) provide such certificates, documents, reports, information, affidavits and
other instruments and do such further acts deemed necessary, desirable or proper
by Lender to comply with the requirements of any agency having jurisdiction over
Lender.
The undersigned, being duly authorized signatories, agree to all the terms
and conditions set forth above and on the foregoing pages hereof, and in witness
whereof, they hereby execute this Agreement on the date written below.
DATE: 04/13/99 DATE: April 13, 1999
------------------------------- -------------------------------
BORROWER: LENDER:
WORLD WIDE STONE CORPORATION FIRST CAPITAL GROUP, INC.
BY: /s/ Xxxxxxx X. Xxxxxxxxxx BY: /s/ Xxxx Xxxxxxxxx
--------------------------------- ---------------------------------
ITS: Executive Vice President ITS: President
-------------------------------- --------------------------------
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