1
BUSINESS LOAN AGREEMENT
________________________________________________________________________________________________________________________
Principal Loan Date Maturity Loan No. Call Collateral Account Officer Initials
$500.000.00 09-10-1997 12-31-2001 599 328 0189952980 00582 --
________________________________________________________________________________________________________________________
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
Borrower: UNIFIED HOLDINGS, INC. Lender: Bank One. Indiana, NA
000 X XXXXXXXXXXXX XXXXXX XXXXX 000 000 Xxxxxxxx Xxxxxx
XXXXXXXXXXXX, XX 00000 Xxxxxxxxxxxx, XX 00000
THIS BUSINESS LOAN AGREEMENT between UNIFIED HOLDINGS, INC. ("Borrower") and
Bank One, Indiana, NA ("Lender") is made and executed as of September 10,
1997. This Agreement governs all loans, credit facilities and/or other
financial accommodations described herein and, unless otherwise agreed to In
writing by Lender and Borrower, all other present and future loans, credit
facilities and other financial accommodations provided by Lender to Borrower.
All such loans, credit facilities and other financial accommodations,
together with all renewals, amendments and modifications thereof, are
referred to in this Agreement Individually as the "Loan" and collectively as
the "Loans." Borrower 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 shall remain subject to the following terms and conditions
of this Agreement.
TERM. This Agreement shall be effective as of September 10, 1997, and shall
continue thereafter until all Loans and other obligations owing by Borrower
to Lender hereunder have been paid in full and Lender has no commitments or
obligations to make further advances under the Loans to Borrower.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement shall have
the meanings attributed to such terms In the Uniform Commercial Code as
adopted In the State of Indiana. All references to dollar amounts shall mean
amounts in lawful money of the United States of America.
Agreement. The word "Agreement" means this Business Loan Agreement,
as may be amended or modified from time to time, together with all
exhibits and schedules attached hereto from time to time.
Borrower. The word "Borrower" means UNIFIED HOLDINGS, INC.
Collateral. The word "Collateral" means and Includes without
limitation all property and assets granted as collateral for any
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, deed of trust,
assignment, pledge, 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.
ERISA. The word "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended.
Grantor. The word "Grantor" means and includes each and all of the
persons or entities granting a Security Interest in any Collateral
for any of the Loans.
Guarantor. The word "Guarantor" means and Includes each and all of
the guarantors, sureties, and accommodation parties for any of the
Loans.
Indebtedness. The word "Indebtedness" means the Indebtedness
evidenced by the Note, including all principal and accrued interest
thereon, together with all other liabilities, costs and expenses for
which Borrower is responsible under this Agreement or under any of
the Related Documents. In addition, the word "Indebtedness"
includes all other obligations, debts and liabilities, plus any
accrued interest thereon, owing by Borrower, or any one or more of
them, to Lender of any kind or character, now existing or hereafter
arising, as well as all present and future claims by Lender against
Borrower, or any one or more of them, and all renewals, extensions,
modifications, substitutions and rearrangements of any of the
foregoing; whether such Indebtedness arises by note, draft,
acceptance, guaranty, endorsement, letter of credit, assignment,
overdraft, indemnity agreement or otherwise; whether such
Indebtedness is voluntary or involuntary, due or not due, direct or
indirect, absolute or contingent, liquidated or unliquidated;
whether Borrower may be liable Individually or jointly with others;
whether Borrower may be liable primarily or secondarily or as
debtor, maker, comaker, drawer, endorser, guarantor, surety,
accommodation party or otherwise.
Lender. The word "Lender" means Bank One, Indiana, NA, its
successors and assigns.
2
Note. The word "Note" means any and all promissory note or notes
which evidence Borrower's Loans in favor of Lender, as well as any
amendment, modification, renewal or replacement thereof.
Permitted Lions. The words "Permitted Liens" mean: (a) liens and
security interests securing Indebtedness owed by Borrower to Lender;
(b) liens for taxes, assessments, or similar charges either (I) not
yet due, or (II) being contested in good faith by appropriate
proceedings for and which Borrower has established adequate
reserves; (c) purchase money liens or purchase money security
interests upon or in any property acquired or hold by Borrower in
the ordinary course of business to secure any indebtedness permitted
under this Agreement; and (d) liens and security interests which, as
of the date of this Agreement, have been disclosed to and approved
by the Lender in writing.
Related Documents. The words "Related Documents" mean and Include
without limitation the Note and all credit agreements, loan
agreements, environmental agreements, guaranties, security
agreements, mortgages, deeds of trust, and all other instruments,
agreements and documents, whether now or hereafter existing,
executed in connection with the Note.
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 and include
without limitation any type of security interest, whether in the
form of a lien, charge, mortgage, deed of trust, assignment, pledge,
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.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender,
as of the date of this Agreement, as of the date of each request for an
advance or disbursement of Loan proceeds, as of the date of any renewal,
extension or modification of any Loan, and at all times any Indebtedness
exists hereafter:
Organization. Borrower is a corporation which is duly organized,
validly existing, and in good standing under the laws of the State
of Indiana and is duly qualified and in good standing in all other
states in which Borrower is doing business. 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.
Authorization. The execution, delivery, and performance of this
Agreement and all Related Documents to which Borrower is a party
have been duly authorized by all necessary action; do not require
the consent or approval of any other person, regulatory authority or
governmental body; and do not conflict with, result in a violation
of, or constitute a default under (a) any provision of its articles
of incorporation or organization, or bylaws, or any agreement or
other instrument binding upon Borrower or (b) any law, governmental
regulation, court decree, or order applicable to Borrower. Borrower
has all requisite power and authority to execute and deliver this
Agreement and all other Related Documents to which Borrower is a
party.
Financial Information. Each financial statement of Borrower
supplied to Lender truly and completely discloses Borrower'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 and all other Related Documents to
which Borrower is a party constitute legal, valid and binding
obligations of Borrower enforceable against Borrower in accordance
with their respective terms, except as limited by bankruptcy,
insolvency or similar laws of general application relating to the
enforcement of creditors' rights and except to the extent specific
remedies may generally be limited by equitable principles.
Properties. Except as contemplated by this Agreement or as
previously disclosed in Borrower's financial statements or in
writing to Lender and as accepted by Lender, and except for property
tax liens for taxes not presently due and payable, Borrower is the
sole owner of, 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 Borrower's properties are titled in Borrower's
legal name, and Borrower has not used, or filed a financing
statement under, any other name for at least the last six (6) years.
Compliance. Except as disclosed in writing to Lender (a) Borrower
is conducting Borrower's businesses in material compliance with all
applicable federal, state and local laws, statutes, ordinances,
rules, regulations, orders, determinations and court decisions,
Including without limitation, those pertaining to health or
environmental matters, and (b) Borrower otherwise does not have any
known material contingent liability In connection with the release
into the environment, disposal or the improper storage of any toxic
or hazardous substance or solid waste.
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 in any one case or in the
aggregate 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 Lender in
writing.
3
Taxes. All tax returns and reports of Borrower 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
that have been disclosed in writing to Lender which are 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 and
approved by Lender In writing, Borrower has not entered into any
Security Agreements, granted a Security Interest or permitted the
filing or attachment of any Security Interests on or affecting any
of the Collateral, except in favor of Lender.
Licenses, Trademarks and Patents. Borrower possesses and will
continue to possess all permits, licenses, trademarks, patents and
rights thereto which are needed to conduct Borrower's business and
Borrower's business does not conflict with or violate any valid
rights of others with respect to the foregoing.
Commercial Purposes. Borrower intends to use the Loan proceeds
solely for business or commercial related purposes approved by
Lender and such proceeds will not be used for the purchasing or
carrying of "margin stock" as defined in Regulation U issued by the
Board of Governors of the Federal Reserve System.
Employee Benefit Plans. Each employee benefit plan as to which
Borrower may have any liability complies In all material respects
with all applicable requirements of law and regulations, and (i) no
Reportable Event nor Prohibited Transaction (as defined in ERISA)
has occurred with respect to any such plan, (ii) Borrower has not
withdrawn from any such plan or initiated steps to do so, (iii) no
steps have been taken to terminate any such plan, and (iv) there are
no unfunded liabilities other than those previously disclosed to
Lender in writing.
Location of Borrower's Offices and Records. Borrower's place of
business, or Borrower's chief executive office if Borrower has more
than one place of business, is located at 000 X XXXXXXXXXXXX XXXXXX
XXXXX 000, XXXXXXXXXXXX, XX 00000. Unless Borrower has designated
otherwise In writing this location is also the office or offices
where Borrower keeps Its records concerning the Collateral.
Information. All information heretofore or contemporaneously
herewith furnished by Borrower to Lender for the purposes of or in
connection with this Agreement or any transaction contemplated
hereby is, and all information hereafter furnished by or on behalf
of Borrower to Lender will be, true and accurate in every material
respect on the date as of which such information is dated or
certified; and none of such information is or will be incomplete by
omitting to state any material fact necessary to make such
information not misleading.
Survival of Representations and Warranties. Borrower understands
and agrees that Lender, without Independent investigation, is
relying upon the above representations and warranties in extending
Loan advances to Borrower. - Borrower further agrees that the
foregoing representations and warranties shall be continuing in
nature and shall remain In full force and effect during the term of
this Agreement.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
Litigation. Promptly inform Lender in writing of (a) all material
adverse changes in Borrower's financial condition, (b) 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, and (c) the
creation, occurrence or assumption by Borrower of any actual or
contingent liabilities not permitted under this Agreement.
Financial Records. Maintain its books and records in accordance
with generally accepted accounting principles, applied on a
consistent basis, and permit Lender to examine, audit and make and
take away copies or reproductions of Borrower's books and records at
all reasonable times. 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 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.
Financial Statements. Furnish Lender with, as soon as available,
but in no event later than one hundred twenty (120) days after the
end of each fiscal year, Borrower's balance sheet, income statement,
and statement of changes in financial position for the year ended,
compiled by a certified public accountant satisfactory to Lender,
together with the management letter, if any, prepared by such
accountants promptly upon receipt, and, as soon as available, but in
no event later than forty five (45) days after the end of each
fiscal quarter, Borrower's balance sheet, income statement, and
statement of changes in financial position for the period ended,
prepared and certified, subject to year-end review adjustments, as
correct to the best knowledge and belief by Borrower's chief
financial officer or other officer or person acceptable to Lender.
All financial reports required to be provided under this Agreement
shall be prepared in accordance with generally accepted accounting
principles, applied on a consistent basis, and certified by Borrower
as being true and correct.
Additional Information. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables
and payables, inventory schedules, budgets, forecasts, tax returns,
and other reports with respect to Borrower's financial condition and
business operations as Lender may request from time to time.
Insurance. Maintain fire and other risk insurance, public liability
insurance, business interruption 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
reasonably acceptable to Lender. Borrower, upon request of Lender,
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 thirty (30) days' prior written notice to Lender.
In connection with all policies covering
4
assets in which Lender holds or is offered a Security Interest for the
Loans, Borrower will provide Lender with such lender 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: (a) the name of the insurer; (b) the risks insured; (c)
the amount of the policy; (d) the properties insured; (a) the then
current property values on the basis of which Insurance has been
obtained, and the manner of determining those values; and (f) the
expiration date of the policy.
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 Borrower's business
operations, unless specifically consented to the contrary by Lender
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,
Borrower will not be required to pay and discharge any such
assessment, tax, charge, xxxx xxxx or claim so long as (a) the
legality of the same shall be contested in good faith by appropriate
proceedings, and (b) Borrower shall have established on its books
adequate reserves with respect to such contested assessment, tax,
charge, levy, lien, or claim in accordance with generally accepted
accounting principles. Borrower, upon demand of Lender, will
furnish to Lender evidence of payment of the assessments, taxes,
charges, levies, liens and claims and will authorize the appropriate
governmental official to deliver to Lender at any time a written
statement of any assessments, taxes, charges, levies, liens and
claims against Borrower's properties, income, or profits.
Performance. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and in the Related Documents
in a timely manner, and promptly notify Lender if Borrower learns of
the occurrence of any event which constitutes an Event of Default
under this Agreement or under any of the Related Documents.
Operations. Conduct its business affairs in a reasonable and
prudent manner and in compliance with all applicable federal, state
and municipal laws, ordinances, rules and regulations respecting its
properties, charters, businesses and operations, including without
limitation, compliance wit the Americans With Disabilities Act, all
applicable environmental statutes, rules, regulations and ordinances
and with all minimum funding standards and other requirements of
ERISA and other laws applicable to Borrower's employee benefit
plans.
Environmental Compliance and Reports. Borrower shall comply in all
respects with all federal, state and local environmental laws,
statutes, regulations and ordinances; not cause or permit to exist,
as a result of an intentional or unintentional action or omission on
its 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;
and 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,
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.
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:
Maintain Basic Business. Engage in any business activities
substantially different than those in which Borrower is presently
engaged.
Continuity of Operations. Cease operations, liquidate, dissolve or
merge or consolidate with or into any other entity.
Liens. Mortgage, assign, pledge, grant a security Interest In or
otherwise encumber Borrower's assets, except as allowed as a
Permitted Lien.
Transfer of Assets. Transfer, sell or otherwise dispose of any of
Borrower's assets other than in the ordinary course of business.
Transfer of Ownership. Permit the sale, pledge or other transfer of
any ownership interest In Borrower.
Investments. Invest in, or purchase, create, form or acquire any
Interest in, any other enterprise or entity.
CONDITIONS PRECEDENT TO ADVANCES. If Lender is obligated to make any Loan
advances or to otherwise disburse any Loan proceeds to Borrower, such
obligation shall be subject to the conditions precedent that as of the date
of such advance or disbursement and after giving effect thereto (a) all
representations and
5
warranties made to Lender In this Agreement and the Related Documents shall
be true and correct as of and as if made on such date, (b) no material
adverse change In the financial condition of Borrower or any Guarantor since
the effective date of the most recent financial statements furnished to
Lender, or in the value of any Collateral, shall have occurred and be
continuing, (c) no event has occurred and Is continuing, or would result from
the requested advance or disbursement, which with notice or lapse of time, or
both, would constitute an Event of Default, (d) no Guarantor has sought,
claimed or otherwise attempted to limit, modify or revoke such Guarantor's
guaranty of any Loan, and (a) Lender has received all Related Documents
appropriately executed by Borrower and all other proper parties.
TANGIBLE NET WORTH. Borrower will maintain a Minimum Tangible Net Worth of
$975,000.00 until 12-31-1997, and increasing each January 1 at to the greater
of the existing covenant or 90% of prior FYE Tangible Net Worth.
FIXED CHARGE RATIO. Maintain as of the end of each fiscal year a ratio of
Adjusted Net Income for the 12 month period ending with such fiscal year to
Fixed Charges for such 12 month period of not less than 1.20 to 1.00.
For purposes of this Agreement and to the extent the following terms are
utilized in this Agreement, the term "Tangible Net Worth" shall mean
borrower's total assets excluding all intangible assets (including, without
limitation, goodwill, trademarks, patents, copyrights, organization expenses,
and similar Intangible items) less total liabilities excluding Subordinated
Debt. The term "Subordinated Debt" shall mean all indebtedness owing by
Borrower which has been subordinated by written agreement to all indebtedness
now or hereafter owing by Borrower to Lender, such agreement to be in form
and substance acceptable to Lender. The term "Liquid Assets" shall mean
borrower's unencumbered cash, marketable securities and accounts receivable
net of reserves. The term "Adjusted Net Income" means earnings before
interest, taxes, -depreciation and amortization. The term "Fixed Charges"
mean interest expense plus current maturities of long-term debt plus current
maturities of capital leases plus dividends plus cash capital expenditures.
The term "Cash Flow" shall mean net income after taxes, and exclusive of
extraordinary items, plus depreciation and amortization. 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.
RIGHT OF SETOFF. Unless a lien would be prohibited by law or would render a
nontaxable account taxable, Borrower grants to Lender a contractual
possessory security interest in, and hereby assigns, conveys, delivers,
pledges, and transfers to Lender all Borrower's right, title and interest in
and to, Borrower's accounts with Lender (whether checking, savings, or any
other account), including without limitation all accounts held jointly with
someone else and all accounts Borrower may open in the future. Borrower
authorizes Lender, to the extent permitted by applicable law, to charge or
setoff all sums owing on the Indebtedness against any and all such accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an event of
Default under this Agreement:
Default on Indebtedness. Failure of Borrower to make any payment
when due on any of the Indebtedness.
Other Defaults. Failure of Borrower, any Guarantor or any Grantor
to comply with or to perform when due any other term, obligation,
covenant or condition contained in this Agreement, the Note or in
any of the other Related Documents, or failure of Borrower to comply
with or to perform any other term, obligation, covenant or condition
contained in any other agreement now existing or hereafter arising
between Lender and Borrower.
False Statements. Any warranty, representation or statement made or
furnished to Lender under this Agreement or the Related Documents is
false or misleading In any material respect.
Default to Third Party. The occurrence of any event which permits
the acceleration of the maturity of any indebtedness owing by
Borrower, Grantor or any Guarantor to any third party under any
agreement or undertaking.
Bankruptcy or Insolvency. If the Borrower, Grantor or any
Guarantor: (i) becomes insolvent, or makes a transfer in fraud of
creditors, or makes an assignment for the benefit of creditors, or
admits in writing its Inability to pay its debts as they become due;
(ii) generally is not paying its debts as such debts become due;
(iii) has a receiver, trustee or custodian appointed for, or take
possession of, all or substantially all of the assets of such party
or any of the Collateral, either in a proceeding brought by such
party or in a proceeding brought against such party and such
appointment is not discharged or such possession Is not terminated
within sixty (60) days after the effective date thereof or such
party consents to or acquiesces In such appointment or possession;
(iv) files a petition for relief under the United States Bankruptcy
Code or any other present or future federal or state insolvency,
bankruptcy or similar laws (all of the foregoing hereinafter
collectively called "Applicable Bankruptcy Law") or an involuntary
petition for relief is filed against such party under any Applicable
Bankruptcy Law and such involuntary petition is not dismissed within
sixty (60) days after the filing thereof, or an order for relief
naming such party is entered under any Applicable Bankruptcy Law, or
any composition, rearrangement, extension, reorganization or other
relief of debtors now or hereafter existing is requested or
consented to by such party; (v) fails to have discharged within a
period of sixty (60) days any attachment, sequestration or similar
writ levied upon any property of such party; or (vi) fails to pay
within thirty (30) days any final money judgment against such party.
Liquidation, Death and Related Events. If Borrower, Grantor or any
Guarantor is an entity, the liquidation, dissolution, merger or
consolidation of any such entity or, If any of such parties is an
individual, the death or legal incapacity of any such individual.
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, any
creditor of any Grantor against any collateral securing the
Indebtedness, or by any governmental agency.
6
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, Lender
may, at its option, without further notice or demand, (a) terminate all
commitments and obligations of Lender to make Loans to Borrower, if any,
(b) declare all Loans and any other Indebtedness immediately due and
payable, (c) refuse to advance any additional amounts under the Note, or
(d) exercise all the rights and remedies provided in the Note or in any
of the Related Documents or available at law, in equity, or otherwise;
provided, however, if any Event of Default of the type described in the
"Bankruptcy or Insolvency" subsection above shall occur, all Loans and
any other Indebtedness shall automatically become due and payable,
without any notice, demand or action by Lender. 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 Lender to pursue any remedies 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 any Grantor shall not affect Lender's right
to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS.
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.
Applicable Law. This Agreement has been delivered to Lender and
accepted by Lender in the State of Indiana. Subject to the
provisions on arbitration, this Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana without
regard to any conflict of laws or provisions thereof.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF)
HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE
(WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE
UNDERSIGNED AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS
DOCUMENT OR ANY OTHER RELATED DOCUMENT. THIS PROVISION IS A
MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED
HEREIN OR IN THE OTHER RELATED DOCUMENTS.
ARBITRATION. Lender and Borrower agree that upon the written demand
of either party, whether made before or after the institution of any
legal proceedings, but prior to the rendering of any judgment In
that proceeding, all disputes, claims and controversies between
them, whether individual, joint, or class in nature, arising from
this Agreement, any Related Document or otherwise, Including without
limitation contract disputes and tort claims, shall be arbitrated
pursuant to the Commercial Rules of the American Arbitration
Association. Any arbitration proceeding held pursuant to this
arbitration provision shall be conducted In the city nearest the
Borrower's address having an AAA regional office, or at any other
place selected by mutual agreement of the parties. No act to take
or dispose of any Collateral shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration
agreement. This arbitration provision shall not limit the right of
either party during any dispute, claim or controversy to seek, use,
and employ ancillary, provisional or preliminary rights and/or
remedies, judicial or otherwise, for the purposes of realizing upon,
preserving, protecting, foreclosing upon or proceeding under
forcible entry and detainer for possession of, any real or personal
property, and any such action shall not be deemed an election of
remedies. This includes, without limitation, obtaining injunctive
relief or a temporary restraining order, invoking a power of sale
under any deed of trust or mortgage, obtaining a writ of attachment
or imposition of a receivership, or exercising any rights relating
to personal property, Including taking or disposing of such property
with or without judicial process pursuant to Article 9 of the
Uniform Commercial Code. Any disputes, claims, or controversies
concerning the lawfulness or reasonableness of any act, or exercise
of any right or remedy, concerning any Collateral, including any
claim to rescind, reform, or otherwise modify any agreement relating
to the Collateral, shall also be arbitrated; provided however that
no arbitrator shall have the right or the power to enjoin or
restrain any act of either party. Judgment upon any award rendered
by any arbitrator may be entered In any court having jurisdiction.
Nothing In this arbitration provision shall preclude either party
from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches
and similar doctrines which would otherwise be applicable in an
action brought by a party shall be applicable in any arbitration
proceeding, and the commencement of an arbitration proceeding shall
be deemed the commencement of any Action for these purpose. The
Federal Arbitration Act (Title 9 of the United States Code) shall
apply to the construction, Interpretation, and enforcement of this
arbitration provision.
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. Borrower agrees and consents to
Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loans 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 it 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.
Costs and Expenses. Borrower agrees to pay upon demand all of
Lender's expenses, Including attorneys' fees, incurred in connection
with the preparation, execution, enforcement, modification and
collection of this Agreement or in connection with the Loans made
pursuant to this Agreement. Lender may hire one or more attorneys
to help collect the Indebtedness If Borrower does not pay, and
Borrower will pay Lender's reasonable attorneys' fees.
Notices. All notices required to be given under this Agreement
shall be given in writing, and shall be effective when actually
delivered or when deposited with a nationally recognized overnight
courier or deposited in the United States mail, first class, postage
prepaid, addressed to the party to whom the notice is to be
7
given at the address shown above. 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, Borrower will keep
Lender informed at all times of Borrower's current addresses).
Severability. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as to any
person or circumstance, such finding shall not render that provision
invalid or unenforceable as to any other persons or circumstances.
If feasible, any such offending provision shall be deemed to be
modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall
be stricken and all other provisions of this Agreement in all other
respects shall remain valid and enforceable.
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which together shall constitute the same document. Signature pages
may be detached from the counterparts to a single copy of this
Agreement to physically form one document.
Successors and Assigns. All covenants and agreements contained by
or on behalf of Borrower shall bind its successors and assigns and
shall inure to the benefit of Lender, its successors and assigns.
Borrower shall not, however, have the right to assign its rights
under this Agreement or any interest therein, without the prior
written consent of Lender.
Survival. All warranties, representations, and covenants made by
Borrower in this Agreement or in any certificate or other instrument
delivered by Borrower to Lender under this Agreement shall be
considered to have been relied upon by Lender and will survive the
making of the Loan and delivery to Lender of the Related Documents,
regardless of any investigation made by Lender or on Lender's
behalf.
Time Is of the Essence. Time is of the essence In the performance
of this Agreement.
Waiver. Lender shall not be deemed to have waived any rights under
this Agreement unless such waiver is given In writing and signed by
Lender. 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 Lender 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 Lender, nor any course of
dealing between Lender and Borrower, or between Lender and any
Grantor or Guarantor, shall constitute a waiver of any of Lender's
rights or of any obligations of Borrower or of any Grantor 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 in subsequent
instances where such consent is required, and in all cases such
consent may be granted or withheld in the sole discretion of Lender.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS EXECUTED AS
OF THE DATE SET FORTH ABOVE.
BORROWER:
UNIFIED HOLDINGS, INC.
By: /s/ Xxxx X. Xxxx
XXXX X. XXXX, PRESIDENT & CEO
LENDER:
Bank One, Indiana, NA
By:
Authorized Officer
