BUSINESS LOAN AGREEMENT
Exhibit 10.1
| Principal | Loan Date | Maturity | Loan No | Call /Coll | Account | Officer | Initials | |||||||
| $2,000,000.00 | 12-30-2008 | 06-30-2009 | 010 | P-20754 | MRS | |||||||||
| References in the boxes above are for Xxxxxx’s use only and do not limit the applicability of this document to any particular loan or item. |
||||||||||||||
| Any item above containing “ * * * ” has been omitted due to text length limitations. |
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Borrower:
|
Community First, Inc. (TIN: 00-0000000) | Lender: | TENNESSEE COMMERCE BANK | |||
| 000 X. Xxxxx Xxxxxxxx Xxxx | MAIN OFFICE | |||||
| Columbia, TN 38402 | 000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000 | |||||
| Franklin, TN 37067 | ||||||
| (000) 000-0000 |
THIS BUSINESS LOAN AGREEMENT dated December 30, 2008, is made and executed between Community
First, Inc. (“Borrower”) and TENNESSEE COMMERCE 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. 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; (B) the
granting, renewing, or extending of any Loan by Xxxxxx at all times shall be subject to
Lender’s sole judgment and discretion; and (C) all such Loans shall be and remain subject to
the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of December 30, 2008, and shall continue in full
force and affect until such time as all of Borrower’s Loans in favor of Lender have been paid
in full, including principal, interest, costs, expenses, attorneys’ fees, and other fees and
charges, or until such time as the parties may agree in writing to terminate this Agreement.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender’s obligation to make the initial Advance and each
subsequent Advance under this Agreement shall be subject to the fulfillment to Lender’s
satisfaction of all of the conditions set forth in this Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following documents for the Loan: (1)
the Note; (2) together with all such Related Documents as Lender may require for the Loan;
all in form and substance satisfactory to Lender and Xxxxxx’s counsel.
Borrower’s Authorization. Borrower shall have provided in form and substance satisfactory
to Lender properly certified resolutions, duly authorizing the execution and delivery of
this Agreement, the Note and the Related Documents. In addition, Borrower shall have
provided such other resolutions, authorizations, documents and instruments as Lender or its
counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees, charges, and
other expenses which are then due and payable as specified in this Agreement or any Related
Document.
Representations and Warranties. The representations and warranties set forth in this
Agreement, in the Related Documents, and in any document or certificate delivered to Lender
under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a condition which
would constitute an Event of Default under this Agreement or under any Related Document.
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 Tennessee. 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. 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. Xxxxxxxx maintains an office at 000 X. Xxxxx Xxxxxxxx Xxxx, Xxxxxxxx, XX
00000. Unless Borrower has designated otherwise in writing, the principal office is the
office at which Borrower keeps its books and records including its records concerning the
Collateral. Borrower will notify Lender prior to any change in the location of Borrower’s
state of organization or any change in Borrower’s name. 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 Borrower’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
(a) Borrower’s articles of incorporation or organization, or bylaws, or (b) 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 Borrower’s financial condition subsequent to
the date of the most recent financial statement supplied to Lender. Borrower has no material
contingent obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is
required to give under this Agreement when delivered will constitute legal, valid, and
binding obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
Properties. Except as contemplated by this Agreement or as previously disclosed in
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 the
Collateral, there has been no use, generation, manufacture, storage, treatment, disposal,
release or threatened release of any Hazardous Substance by any person on, under, about or
from any of the Collateral. (2) Borrower has no knowledge of, or reason to believe that
there has been (a) any breach or violation of any Environmental Laws; (b) any use,
generation, manufacture, storage, treatment, disposal, release or threatened release of any
Hazardous Substance on, under, about or from the Collateral by any prior owners or occupants
of any of the Collateral; or (c) any actual or threatened litigation or claims of any kind
by any person relating to such matters. (3) Neither Borrower nor any tenant, contractor,
agent or other authorized user of any of the Collateral shall use, generate, manufacture,
store, treat, dispose of or release any Hazardous Substance on, under, about or from any of
the Collateral; and any such activity shall be conducted in compliance with all applicable
federal, state, and local laws, regulations, and ordinances, including without limitation
all Environmental Laws. Borrower authorizes Lender and its agents to enter upon the
Collateral to make such inspections and tests as Lender may deem appropriate to determine
compliance of the Collateral with this section of the Agreement. Any inspections or tests
made by Lender shall be at Borrower’s expense and for Lender’s purposes only and shall not
be construed to create any responsibility or liability on the part of Lender to Borrower or
to any other person. The representations and warranties contained herein are based on
Borrower’s due diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against Lender for
indemnity or contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (2) agrees to indemnify, defend, 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 and
defend, shall survive the payment of the Indebtedness and the termination, expiration or
satisfaction of this Agreement and shall not be affected by Lender’s acquisition of any
interest in any of the Collateral, whether by
| (Continued) | Page 2 |
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 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 Borrower’s Loan and Note, that would be prior or that may in any way be superior
to Lender’s Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all
Related Documents are binding upon the signers thereof, as well as upon their successors,
representatives and assigns, and are legally enforceable in accordance with their respective
terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with 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 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 such financial statements and other related
information at such frequencies and in such detail as
Lender may reasonably request.
Additional Information. Furnish such additional information and statements, as Xxxxxx may
request from time to time.
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 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 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. Provided however, Xxxxxxxx will not be required to pay and discharge any such
assessment, tax, charge, xxxx, xxxx
or claim so long as (1) the legality of the same shall be contested in good faith by
appropriate proceedings, and (2) Borrower shall have established on Borrower’s books adequate
reserves with respect to such contested assessment, tax, charge, levy, lien, or claim in
accordance with GAAP.
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 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 and in compliance with
the conditions of a permit issued by the appropriate federal, state or local
governmental authorities; shall furnish to Lender promptly and in any event within thirty (30)
days after receipt thereof a copy of any notice, summons, lien, citation, directive, letter or
other communication from any governmental agency or instrumentality concerning any intentional
or unintentional action or omission on Borrower’s part in connection with any environmental
activity whether or not there is damage to the environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages,
deeds of trust, security agreements, assignments, financing statements, instruments, documents
and other agreements as Lender or its attorneys may reasonably request to evidence and secure
the Loans and to perfect all Security Interests.
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
| (Continued) | Page 3 |
the rate charged under the Note from the date incurred or paid by Xxxxxx 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.
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 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 to any other
person, enterprise or entity, (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.
Agreements. Borrower will not enter into any agreement containing any provisions which would be
violated or breached by the performance of Borrower’s obligations under this Agreement or in
connection herewith.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to Borrower, whether
under this Agreement or under any other agreement, Lender shall have no obligation to make Loan
Advances or to disburse Loan proceeds if: (A) Borrower or any Guarantor is in default under the
terms of this Agreement or any of the Related Documents or any other agreement that Borrower or
any Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes incompetent or becomes
insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged a bankrupt; (C)
there occurs a material adverse change in Borrower’s financial condition, in the financial
condition of any Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such Guarantor’s guaranty
of the Loan or any other loan with Lender; or (E) Lender in good xxxxx xxxxx itself insecure, even
though no Event of Default shall have occurred.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of
setoff in all Borrower’s accounts with Lender (whether checking, savings, or some other account).
This includes all accounts Borrower 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 debt against any and all such accounts, and, at Lender’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.
Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension
of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of
any other creditor or person that may materially affect any of Borrower’s or any Grantor’s
property or Borrower’s or any Grantor’s ability to repay the Loans or perform their respective
obligations under this Agreement or any of the Related Documents.
False Statements. Any warranty, representation or statement made or furnished to Lender by
Borrower or on Borrower’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.
Insolvency. The dissolution or termination of 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 of Borrower’s accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply if there is a good faith dispute by 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.
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.
Insecurity. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise
provided in this Agreement or the Related Documents, all commitments and obligations of Lender
under this Agreement or the Related Documents or any other agreement immediately will terminate
(including any obligation to make further Loan Advances or disbursements), and, at Lender’s
option, all Indebtedness immediately will become due and payable, all without notice of any kind
to Borrower, except that in the case of an Event of Default of the type described in the
“Insolvency” subsection above, such acceleration shall be automatic and not optional. In addition, Lender shall have all the rights and remedies provided in the Related Documents or available at
law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender’s
rights and remedies shall be cumulative and may be exercised singularly or concurrently. Election
by 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 shall pay all court costs and such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience purposes only and
are not to be used to interpret or define the
provisions of this Agreement.
Consent to Loan Participation. 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
| (Continued) | Page 4 |
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 and unconditionally agrees that either Lender or such 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 federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of Tennessee without regard to its
conflicts of law provisions. This Agreement has been accepted by Xxxxxx in the State of Tennessee.
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. 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. Unless
otherwise provided or required by law, if there is more than one Borrower, any notice given by
Lender to any Borrower is deemed to be notice given to all Borrowers.
Severability. If a court of competent jurisdiction finds any provision of this Agreement to be
illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the
offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal, valid and enforceable.
If the offending provision cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or enforceability of any other
provision of this Agreement.
Subsidiaries and Affiliates of Borrower. To the extent the context of
any provisions of this Agreement makes it appropriate, including without limitation any
representation, warranty or covenant, the word “Borrower” as used in this Agreement shall include
all of Borrower’s subsidiaries and affiliates. Notwithstanding the foregoing however, under no
circumstances shall this Agreement be construed to require Lender to make any Loan or other
financial accommodation to any of Borrower’s subsidiaries or affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained in this
Agreement or any Related Documents shall bind Borrower’s successors and assigns and shall inure to
the benefit of Lender and its successors and assigns. Borrower shall not, however, have the right to
assign Borrower’s rights under this Agreement or any interest therein, without the prior written
consent of Lender.
Survival of Representations and Warranties. 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 Borrower’s Indebtedness shall be paid in full,
or until this Agreement shall be terminated in the manner provided above, whichever is the last to
occur.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
Waive Jury. All parties to this Agreement hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by any party against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used
in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts
shall mean amounts in lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and terms not otherwise defined in this Agreement shall have the meanings assigned
to them in accordance with generally accepted accounting principles as in effect on the date of
this Agreement:
Advance. The word “Advance” means a disbursement of Loan funds made, or to be made, to Borrower or
on Borrower’s behalf on a line of credit or multiple advance basis under the terms and conditions
of this Agreement.
Agreement. The word “Agreement” means this Business Loan Agreement, as this Business Loan Agreement
may be amended or modified from time to time, together with all exhibits and schedules attached to
this Business Loan Agreement from time to time.
Borrower. The word “Borrower” means Community First, Inc. and includes all co-signers and co-makers
signing the Note and all their successors and assigns.
Collateral. The word “Collateral” means all property and assets granted as collateral security for
a Loan, whether real or personal property, whether granted directly or indirectly, whether granted
now or in the future, and whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien,
charge, lien or title retention contract, lease or consignment intended as a security device, or any
other security or lien interest whatsoever, whether created by law, contract, or otherwise.
Environmental Laws. The words “Environmental Laws” mean any and all state, federal and local
statutes, regulations and ordinances relating to the protection of human health or the environment,
including without limitation the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. (“CERCLA”), the Superfund Amendments and
Reauthorization Act of 1986, Pub. L. No. 99-499 (“XXXX”), the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., the Tennessee Hazardous Waste Management Substances Act of 1998, T.C.A.,
00-000-000, et seq., or other applicable state or federal laws, rules, or regulations adopted
pursuant thereto.
Event of Default. The words “Event of Default” mean any of the events of default set forth in this Agreement in the default section of this Agreement.
GAAP. The word “GAAP” means generally accepted accounting principles.
Grantor. The word “Grantor” means each and all of the persons or entities granting a Security
Interest in any Collateral for the Loan, including without limitation all Borrowers granting such a
Security Interest.
Guarantor.
The word “Guarantor” means any guarantor, surety, or
accommodation party of any or all of the Loan.
Guaranty.
The word “Guaranty” means the guaranty from Guarantor to Lender, including without
limitation a guaranty of all or part of the Note.
Hazardous Substances. The words “Hazardous Substances” mean materials that, because of their
quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a
present or potential hazard to human health or the environment when improperly used, treated,
stored, disposed of, generated, manufactured, transported or otherwise handled. The words
“Hazardous Substances” are used in their very broadest sense and include without limitation any and
all hazardous or toxic substances, materials or waste as defined by or listed under the
Environmental Laws. The term “Hazardous Substances” also includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The word “Indebtedness” means the Indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other indebtedness and costs and
expenses for which Borrower is responsible under this Agreement or under any of the Related
Documents.
Lender. The word “Lender” means TENNESSEE COMMERCE BANK, its successors and assigns.
| (Continued) | Page 5 |
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 Community First, Inc. in the principal amount of
$2,000,000.00 dated December 30, 2008, 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 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.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND XXXXXXXX
AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED DECEMBER 30, 2008.
BORROWER:
| COMMUNITY FIRST, INC. |
||||
| By: | /s/ Xxxxxx Xxxxxxxxx | |||
| Xxxxxx Xxxxxxxxx, Chief financial Officer of | ||||
| Community First, Inc. | ||||
LENDER:
| TENNESSEE COMMERCE BANK |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Authorized Signer | ||||
