EXHIBIT 10.4
THE BANK OF NEW YORK BUSINESS CREDITLINK(R)
AGREEMENT
LOAN MAXIMUM
NAME OF BORROWER ACCOUNT NUMBER AMOUNT DATE
International Freight
Logistics LTD 6904662192 $50,000.00 03/26/02
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USE OF WORDS
The word "Agreement" means this Business CreditLink Agreement, as the
same, may be amended, modified or supplemented from time to time. The word
"Borrower" means the borrower executing this Agreement. The word "Bank" means
The Bank of New York. The word "Loan" means any loan which is extended to the
Borrower under this Agreement. The words "Loan Account" means the Business
CreditLink loan account established under this Agreement. The word "Guarantor"
means any and all persons executing a guarantee of the Borrower's obligations to
the Bank under this Agreement. The word "Hypothecator" means any and all
persons executing a hypothecation agreement authorizing the Borrower to pledge
or grant a security interest in and lien on certain property of such person as
Collateral (as hereinafter defined) for the Borrower's obligations to the Bank
under this Agreement. Unless otherwise defined in this Agreement, all terms
used in this Agreement which are defined in the Uniform Commercial Code of the
State of New York (the "Code") have the meanings defined therein.
EFFECT OF ENTERING INTO THIS AGREEMENT
By entering into this Agreement, the Borrower requests the Bank to
make Loans as provided in this Agreement and to establish for the Borrower the
Loan Account. The Loan Account is not a deposit account. The Loan Account is
established only for the purpose of disbursing and recording the Loans made
under this Agreement and the payments of such Loans received by the Bank. By
entering into this Agreement, the Borrower agrees to be bound by and to comply
with all terms and conditions of this Agreement. The Borrower agrees that if it
maintains a business checking account at the Bank (the "Designated Business
Account"), the Bank is authorized to charge the Designated Business Account for
all amounts owing to the Bank under this Agreement.
USE OF LOAN PROCEEDS
The Borrower agrees that the proceeds of the Loans made by the Bank to
the Borrower under this Agreement shall be used only for business, commercial or
agricultural purposes and not in whole or in part for any personal, family or
household purposes. The Borrower acknowledges that the Bank is relying on the
foregoing agreement in determining that the Loans are exempt from the disclosure
and other requirements of certain Federal and state laws and regulations
applicable to extensions of credit for personal, family or household purposes
including, but not limited to, the Truth in Lending Act and Regulation Z
promulgated by the Board of Governors of the Federal Reserve System, the Real
Estate Settlement Procedure Act and Regulation X promulgated by the U.S.
Department of Housing and Urban Development, State of New York Plain Language
Law and other State of New York Banking Department rules and regulations.
CREDIT AVAILABILITY
Subject to the terms and conditions of this Agreement, the Bank agrees
to make Loans to the Borrower for the period beginning on the date of this
Agreement and ending on the one year anniversary date of this Agreement (the
"Draw Period"). The Draw Period shall automatically be extended for successive
one year periods, each period to begin on the last day of the then current Draw
Period and end on the one year anniversary date of the last day of the then
current Draw Period unless the Bank shall elect, in its sole and absolute
discretion, not to extend the Draw Period. If the Bank elects not to extend the
Draw Period, the Bank shall provide the Borrower with written notice at least
thirty days prior to the end of the then current Draw Period that the Draw
Period will not be extended. If the Bank notifies the Borrower that the Draw
Period has not been extended, the Borrower may not obtain, and the Bank shall
have no obligation to make, any Loan requested after the then current Draw
Period.
The outstanding amount of such Loans shall not exceed at any time
during the Draw Period the amount set forth above or agreed to in writing by the
Bank and the Borrower from time to time (the "Maximum Amount"). The Borrower
shall not request a Loan if after making such Loan, the amount of outstanding
Loans would exceed the Maximum Amount. The Bank shall have no obligation to
make any Loan if after making such Loan, the amount of outstanding Loans would
exceed the Maximum Amount and the Bank shall have no liability for not making
such Loan. However, if the Borrower makes a request for a Loan in excess of
the Maximum Amount and the Bank, in its discretion, advances amounts in excess
of the Maximum Amount, the entire amount advanced (including the portion that is
in excess of the Maximum Amount) shall be a Loan and shall be subject to the
terms of this Agreement, provided that the portion in excess of the Maximum
Amount shall be payable on demand.
The Borrower may elect to terminate its Loan account by giving the
Bank written notice of such termination. Such termination shall become
effective as soon as the Bank terminates the Borrower's ability to borrow under
this Agreement, all principal of and interest on the Loans then outstanding and
all other amounts owing to the Bank under this Agreement are paid in full and
all unused Loan Account Checks (as hereinafter defined) are returned to the
Bank.
REQUIREMENTS
Before the Bank makes any Loan under this Agreement, the Borrower must
satisfy all conditions set forth on Schedule A to this Agreement.
LOAN ACCOUNT USE
The Borrower may use any of the following means (if available) to
obtain a Loan under this Agreement:
ATM Access. Provided that the Borrower has an automated teller
machine ("ATM") business banking card ("ATM Card") and an active personal
identification number ("PIN") from the Bank, the Borrower may obtain a Loan by
debiting the Loan Account in the amount of the Loan at any Action Banking Center
ATM located at selected Bank branches ("Action Banking ATM") or any
participating network ATM and either (i) withdrawing such amount to the
Designated Business Account linked to the Borrower's ATM Card. A Loan obtained
in this manner will be deemed advanced to the Borrower by and upon the
withdrawal of cash or the transfer of funds to the Designated Business Account.
Obtaining cash or transferring funds through an ATM is subject to the ATM
cardholder agreement given to the Borrower at the time the Borrower requested
its ATM Card and PIN as amended from time to time, the rules and regulations of
the Bank in effect from time to time for ATM transactions generally and the
maximum daily limits for ATM withdrawals or debits applicable to the Borrower's
ATM Card and, in the case of a participating network ATM, the rules and
regulations of the owner or operator of such ATM. Obtaining cash or
transferring funds through an ATM is further subject to the applicable accounts
being linked to the ATM Card and any ATM system limitations for accessing
accounts and performing particular functions.
Loan Account Check. The Borrower may obtain a Loan by using checks
which may be drawn upon the Loan account (the "Loan Account Checks"). A supply
of these checks will be provided to the Borrower upon execution of this
Agreement. The Bank's receipt of a Loan Account Check for payment or
certification will constitute the Borrower's request to the Bank to make a Loan
in the amount of such Loan Account Check. A Loan obtained in this manner will
be deemed advanced to the Borrower by and upon the payment or certification of
the Loan Account Check. The Bank may, in its discretion, refuse to pay or
certify any Loan Account Check if after paying or certifying such check, the
amount of outstanding Loans would exceed the Maximum Amount. However, if the
Bank does pay such Loan Account Check, the entire amount of the Loan Account
Check (including the portion that is in excess of the Maximum Amount) shall be
a Loan and shall be subject to all of the terms of this Agreement, provided that
the portion in excess of the Maximum Amount shall be payable on demand. If more
than 5 Loan Account Checks are drawn upon the Loan Account in a Statement Period
(as hereinafter defined), the Borrower agrees to pay to the Bank, a fee of $5
for each Loan Account Check drawn on the Loan Account in such Statement Period
in excess of 5 Loan Account Checks. The fee for each Loan account Check in
excess of 5 Loan Account Checks drawn on the Loan Account in a Statement Period
shall be deemed to be a Loan advanced on the date the Loan Account Check is paid
and subject to all of the terms of this Agreement provided that such Loan shall
be payable on the payment date specified in the Periodic Statement (as
hereinafter defined) for such Statement Period.
Automated Response Unit For Business Access. Provided that the
Borrower maintains a Designated Business Account and has an ATM Card and an
active PIN from the Bank, the Borrower may use the Bank's Automated Response
Unit For Business ("ARU") to obtain a Loan by debiting the amount of the Loan
from the Loan account and crediting the Loan to the Designated Business Account
linked to the ARU. A Loan obtained in this manner will be deemed advance to the
Borrower by and upon the transfer of funds to the Designated Business Account.
Transferring funds through the ARU is subject to the rules and regulations of
the Bank in effect from time to time for ARU transactions generally.
The Bank of New York Direct 24 PC Banking (SM) Access.
Provided that the Borrower maintains a Designated Business Account and
has an ATM card and an active PIN from the Bank, the Borrower may use The Bank
of New York Direct 24 PC Banking computer services ("PC") to obtain a Loan by
debiting the Loan Account in the amount of the Loan and crediting such amount to
the Designated Business Account linked to the PC. A Loan obtained in this
manner will be deemed advanced to the Borrower by and upon the transfer of funds
to the Designated Business Account. Transferring fund by PC is subject to the
Direct 24 Banking Services agreement given to the Borrower at the time the
Borrower requested PC services as amended from time to time and the rules and
regulations of the Bank in effect from time to time for PC transactions
generally. Transferring fund by PC is subject to the applicable accounts being
linked to the PC and any PC system limitations for accessing accounts and
performing certain functions.
The Bank is not required to make all of the above means for obtaining
a Loan available to the Borrower at any one time. In addition, the Bank
reserves the right, from time to time, to eliminate one or more of such means
for obtaining a Loan.
AUTHORIZED REPRESENTATIVES
The Borrower authorizes the Bank to accept Loan requests and other
instructions from the Borrower and any person otherwise properly authorized to
do so.
The Borrower is responsible for the proper distribution and monitoring
of the usage of its ATM Card, PIN and any password for access by PC in
connection with the Loan Account.
The Borrower assumes the entire risk of any Loan obtained through the
improper, fraudulent or unauthorized use of the Borrower's ATM Card, PIN,
password for access by PC or the ARU and will be responsible to repay such Loan
and all interest thereon.
PRINCIPAL PAYMENTS
Subject to the terms and conditions of this Agreement, the Borrower
agrees to pay the outstanding principal balance of the Loans in equal
consecutive monthly installments, on the date specified in the Periodic
Statement (as hereinafter defined), each in the amount of 1/60 of the principal
balance of the Loans outstanding on the last day of the Draw Period, commencing
the first calendar month after the calendar month in which the Draw Period ends
and continuing thereafter each successive calendar month until the fifty-ninth
month after the making of the first principal payment when the remaining unpaid
principal balance of the Loans shall be due and payable.
The Borrower may prepay the outstanding principal balance of the Loans
in whole or in part at any time and from time to time.
If, at any time during the Draw Period, the principal balance of the
Loans exceeds the Maximum Amount, the Borrower shall prepay the Loans on demand
in an amount such that, after giving effect to such prepayment, the principal
balance of the Loans does not exceed the Maximum Amount.
Subject to the terms and conditions of this Agreement, each prepayment
shall be applied to the outstanding principal balance of the Loan and, if
prepayment is made after the end of the Draw Period, such prepayment shall be
applied against the remaining monthly installments of principal in the inverse
order of maturity of such installments. To the extent that prepayments reduce
the outstanding principal amount of the Loans below the Maximum Amount during
the Draw Period, credit availability is restored.
INTEREST
The Borrower agrees to pay interest monthly on the outstanding
principal balance of the Loans, on the date specified in the Periodic Statement,
at a rate per annum equal to the Prime Rate (as defined below) plus 1.000%, but
not to exceed the maximum rate permitted by law. If an Event of Default
described below occurs and is continuing, the Borrower agrees to pay interest on
the outstanding principal balance of the Loans, on demand, at a rate per annum
equal to the sum of the rate set forth in the preceding sentence plus 3%, but
not to exceed the maximum rate permitted by law. "Prime Rate" means, for any
day, the prime commercial lending rate of the Bank as publicly announced to be
in effect from time to time, such rate to be adjusted automatically and without
notice, on the effective date of any change in such rate. The Borrower agrees
that the Prime Rate I not the lowest rate at which the Bank may make loans.
Interest shall be calculated on the basis of a 360 day year fro the actual
number of days elapsed.
FEE
The borrower agrees to pay to the Bank upon signing this Agreement a
non-refundable fee in an amount equal to the amount specified on Schedule A to
this Agreement. The Borrower agrees to pay to the Bank at the time of each
extension of the Draw Period a non-red=fundable fee equal to the Bank's standard
annual fee for business Credit Link in effect on the date of such extension.
The Bank shall debit the Loan Account for such fee on the first day of each
extension of the Draw Period. The debiting of the Loan Account in the amount of
such fee shall be a Loan and shall be subject to the terms of this Agreement
provided that such Loan shall be payable on the payment date specified in the
Periodic Statement (as hereinafter defined) for such Statement Period.
LATE CHARGES
If any payment of principal of or interest on the Loans is not paid
within 10 days of the due date of such payment, the Borrower agrees to pay to
the Bank, a fee equal to 5% of the amount of any payment of principal and/or
interest not received when due but in any event not less than $25 with respect
to each such overdue payment for the purpose of defraying the Bank's expenses
incident to the handling of such delinquent payment, which shall be payable on
the eleventh day after the due date of such payment. Such fee shall be in
addition to, and not in lieu of, any other remedy that the Bank may have.
PERIODIC STATEMENT; CHARGING ACCOUNTS
The Bank will send to the Borrower a monthly statement (the "Periodic
Statement") which Statement will set forth in principal amount of each Loan made
during the period covered by such statement (the "Statement Period"), the
payments received during such Statement Period and the amount payable on the
next payment date specified in the Periodic Statement. All payments shall be
made in U.S. Dollars and in available funds. If a payment is not made in
available funds, the Bank may apply the payment immediately but is not required
to restore credit availability until such funds are available.
If the Borrower maintains a Designated Business Account, the Bank
shall charge the Designated Business Account for the principal of and interest
on the Loans, any fees and other amounts owing to the Bank under this Agreement
on the date such amounts become due. The failure of the Bank to charge the
Designated Business Account, shall not affect the Borrower's obligation to make
such payments when due.
The Borrower shall promptly examine the Periodic Statement. If the
Periodic Statement contains an error or a discrepancy with respect to Business
CreditLink activity, the Borrower agrees to give the Bank written notice thereof
within 30 days after receipt of the statement. If the Borrower fails to give
such notice, the Bank shall be released of all liability to the Borrower.
APPLICATION OF PAYMENTS
The Bank shall choose the order in which payments are applied to the
amounts due under this Agreement, except as otherwise required by law. Any
payment in excess of the total outstanding obligations of the Borrower under
this Agreement may be credited by the Bank to the Designated business Account as
a deposit provided the Borrower maintains a Designated Business Account or
returned to the Borrower in accordance with the Bank's practices.
RIGHT OF SET-OFF
The Bank shall have a lien on the balances of the Borrower now or
hereafter on deposit with or held as custodian by the Bank and the Bank shall
have full authority to set-off such balances against the obligations of the
borrower under this Agreement or any other obligation of the borrower to the
Bank, and may at any time, without notice to the extent permitted by law, apply
the same to such obligations, whether or not due.
ACCOUNTS; ATM, ARU AND PC SERVICES
Any checking or savings accounts which the borrower maintains at the
Bank, and ATM, ARU and PC services, are governed by the terms and conditions of
other agreements between the Bank and the Borrower and such rules and
regulations as the Bank may establish from time to time. ATM transactions
conducted at a participating network ATM may be subject to additional applicable
rules and regulations of the owner or operator of such ATM. Pursuant to such
other agreements, rules and regulations, the Bank may impose charges in
connection with, and place limitations on the use of, such accounts, or ATM, ARU
or PC services. Any such charges and limitations will be in addition to all
charges and limitations imposed under this Agreement. In the event any term or
condition in this Agreement with respect to the Loan account conflicts with any
term or condition of any agreement governing such other accounts, or ATM, ARU or
PC services, the terms and conditions of this Agreement will be controlling with
respect to the Loan Account.
A Loan obtained from a participating network ATM located in a foreign
country, and which is advanced from such ATM in a currency other than U.S.
Dollars, will be denominated on the books and records of the Bank as a Loan in
U.S. Dollars. The Borrower will be bound by the Bank's determination of the
currency conversion rate and the date and manner in which the Bank made the
conversion.
LOAN ACCOUNT; LOAN ACCOUNT CHECKS
The Bank has the right to debit the Loan Account if (i) the Bank is
served with legal papers in connection with a judgment or tax lien or other
legal mandate resulting from legal proceedings in which the Borrower is
involved, or (ii) any payment made to the Bank under this Agreement is returned
to the Bank for any reason.
Paid Loan Account Checks will not be returned to the Borrower. Copies
of the checks may be obtained from the Bank upon request. The Bank may charge
the Borrower for any costs or expenses incurred by the Bank if the Bank
processes a stop payment order of a Loan Account Check, certifies a Loan account
Check or produces copies of canceled Loan account Checks or statements of
account. The Bank may charge the Borrower for the cost of printing the Loan
Account Checks. The cost of printing Loan Account Checks will vary depending on
the design and quantity selected.
If the Borrower gives the Bank an order not to pay any Loan Account
Check, the Bank will not be responsible even though the Loan Account Check is
paid by the Bank if (i) the Bank acted in a commercially reasonable manner, or
(ii) the Bank did not have reasonable opportunity to act on the Borrower's
order. The Bank will not be responsible if the Bank pays any Loan Account Check
more than 14 days after the Borrower has ordered the Bank in writing not to pay
it. The Borrower agrees not to issue any post-dated Loan Account Checks. If,
however, the Borrower issues a post-dated Loan Account Check, the Bank will not
be responsible if for any reason the Bank pays the Loan Account Check before the
stated date of the Loan Account Check, unless applicable law requires otherwise.
The Borrower agrees to safe-guard the Loan Account Checks. The
Borrower will promptly notify the Bank in writing of any Loan Account Checks
which have been lost or stolen and the circumstances surrounding the loss or
theft. In the event the Bank's obligation to make Loans terminates or the
Borrower closes its Loan account, the Borrower will return any unused Loan
Account Checks to the Bank at the address set forth opposite its name on the
signature page of this Agreement or such other address hereinafter specified by
written notice from the Bank to the borrower.
All Loan Account Checks must be payable in the currency of the United
States of America. The Borrower agrees not to draw a Loan Account Check payable
in any foreign currency. If the Borrower does, the Bank will have the right to
return the Loan Account Check unpaid. If, however, the Bank should pay the Loan
Account Check, the Borrower will be bound by the Bank's determination of the
currency conversion rate and the date and manner in which the Bank made the
conversion.
COLLATERAL
To secure the Borrower's obligations to thee Bank under this Agreement
including but not limited to, the borrowers obligations to repay the Loans and
to pay interest, fees, expenses and other mounts described in this Agreement,
and any other indebtedness, liabilities and obligations of the Borrower of any
kind to the Bank whether in existence now or arising at any time in the future,
the Borrower grants to the Bank a security interest in and a lien upon all
personal property (other than margin stock) and fixtures of the Borrower whether
presently existing or existing in the future or presently owned or acquired in
the future by the Borrower and whether or not subject to the Code, including,
but not limited to, all goods, money, instruments, accounts, farm products,
inventory, equipment, documents, chattel paper, investment property intangibles,
and all interest, dividends and other distributions thereon paid and payable in
cash or property, and all replacements and substitutions for, all accessions and
additions to, and all products and Proceeds of, all of the foregoing (all of
which are referred to as the "Collateral"). For purposes of the foregoing,
margin stock shall be as defined in Regulation U promulgated by the Board of
Governors of the Federal Reserve System, as amended from time to time.
As used in this Agreement, the term Proceeds shall have the meaning
set forth in Article 9 of the Uniform Commercial Code and, to the extent not
otherwise included, shall include, but not be limited to, (i) any and all
proceeds of any insurance, causes and rights of action or settlements thereof,
escrowed amounts or property, judicial and arbitration judgments and awards,
payable to the Borrower from or in respect of any person from time to time; (ii)
any and all payments (in any form whatsoever) made or due and payable to the
Borrower from time to time in connection the ownership of the Collateral,
including, without limitation, all dividends, interest and other amounts
collected or distributed on account of the Collateral or in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any governmental authority; (iii) all claims of the
Borrower for losses or damages arising out of or relating to or for any breach
of any agreements, covenants, representations or warranties or any default
whether or not with respect to or under any of the Collateral (without limiting
any direct or independent rights of the Bank with respect to the Collateral);
and (iv) any and all other amounts from time to time paid or payable under or
in connection with the collateral.
Upon the Bank's request, the Borrower agrees to xxxx its books and
records to reflect the Bank's security interest in the Collateral.
The Borrower agrees to maintain such insurance on the Collateral in
such amounts and covering such risks as is usually maintained by persons engaged
in similar businesses on such personal property and fixtures in the same general
areas in which the Borrower conducts its business.
The borrower authorizes the Bank, at the Borrower's expense, to take
all actions necessary to perfect, whether by filing, possession, control or
otherwise, its security interest in the Collateral under any applicable law or
regulation. The Borrower authorizes the Bank to file one or more financing
statements and any amendments thereto without the Borrower's signature appearing
thereon. The Borrower agrees to do all other necessary acts and file, record,
make execute and deliver such deeds, agreements, notices, instruments and
financing statements as the Bank may require to perfect the Bank's security
interest in the Collateral and enforce its rights in the Collateral.
The Borrower agrees not to change its name, its jurisdiction of
organization if the Borrower is a registered organization, its place of business
or if the Borrower has more than one place of business, its chief executive
office or its primary residence if the borrower is an individual, remove any
records of the Borrower relating to the Collateral or move any of the Collateral
without obtaining the prior written consent of the Bank.
The Bank may, without any notice to the borrower, in its discretion,
whether or not any of the obligations of the Borrower are due, in its name or in
the name of the borrower, demand, xxx for, collect and receive any money or
property at any time due, payable or receivable on or on account of or in
exchange for, and may compromise, settle or extend the time of payment of, any
of the demands or obligations represented by any of the Collateral, and may also
exchange any of the Collateral for other property upon the reorganization,
recapitalization or other readjustment of the issuer, maker or other person who
is obligated on or otherwise has liabilities with respect to the Collateral, and
in connection therewith may deposit any of the Collateral with any committee or
depository upon such terms as the Bank may in its discretion deem appropriate,
and the Borrower does hereby constitute and appoint the Bank the Borrower's true
and lawful attorney to compromise, settle or extend payment of said demands or
obligations and exchange such Collateral as the Borrower might or could do
personally; all without liability or responsibility for action herein authorized
and taken o not taken in good faith. The Bank is entitled at any time in its
discretion to notify and account debtor or the obligor on any instrument to make
payment to it, regardless of whether or not the Borrower had been previously
making collections on the Collateral, and the Bank may take control of any
Proceeds of any of the Collateral. Upon request of the Bank, the Borrower shall
receive and hold all Proceeds of the Collateral in trust for the Bank and not
commingle any collections with any of its own funds and immediately deliver such
collections to the Bank.
The Bank may, in its sole discretion, take possession of the
Collateral at any time, either prior to or subsequent to a default under any of
the obligations. The Bank may, without any notice to the Borrower, in its
discretion, and for its own benefit, lend, use, transfer or repledge to a third
party al or any part of the Collateral by itself or commingled with the property
of others, in bulk or otherwise.
The Bank may, without any notice to the borrower, in its discretion,
transfer, or cause to be transferred, all or any part of the Collateral to its
name, or to the name of its nominee, vote the Collateral so transferred, and
receive income and make or receive collections, including money, thereon and
hold said income and collections as Collateral or apply said income and
collections to any of the obligations of the Borrower, the manner and
distribution of the application to be made as the Bank shall elect.
With respect to the Collateral, the Bank shall have no duty to send
notices, perform services, exercise any rights of collection, enforcement,
conversion or exchange, vote, pay for insurance, taxes or other charges or take
any action of any kind in connection with the management of the Collateral and
its only duty with respect to the Collateral shall be to use reasonable care in
its custody and preservation while in the Bank's possession, which shall not
include any steps necessary to preserve, obtain, secure or acquire rights or
property against or from any party.
The Borrower represents that at the time the Collateral becomes
subject to the Bank's security interest, the borrower shall be the sole owner of
the Collateral and shall be fully authorized and able to sell, thereafter,
pledge and/or grant a security interest in the Collateral to the Bank and the
Collateral shall be free and clear of all other claims, liens, charges, security
interests and encumbrances except security interests in favor of the Bank or as
permitted in writing by the Bank. The Borrower represents and warrants to the
Bank that any information furnished to the Bank regarding the collateral is true
and correct on the date hereof and is complete in all material respects.
The borrower agrees to keep the Collateral free and clear of all
claims, liens, charges, security interest and encumbrances other than the Bank's
security interest or as permitted in writing by the Bank.
INFORMATION
Upon the Bank's request, the Borrower agrees to promptly, and in all
cases no more than 30 days after such request, provide such information
(including financial statements and tax returns of the Borrower and any
Guarantor) to the Bank and to permit the Bank to inspect and make copies of its
books and records, as the Bank shall reasonably request from time to time.
EVENTS OF DEFAULT
Each of the following events shall be an Event of Default under this
Agreement:
1. The failure of the Borrower to make any payment of principal of or interest
on the Loans or other amounts payable under this Agreement when due and payable.
2. The failure of the Borrower to observe or perform any other obligation or
agreement contained in this Agreement or in any instrument, document or
agreement delivered in connection with this Agreement.
3. The failure of any Guarantor to observe or perform any of its obligations or
agreements under its guarantee or in any instrument, document or agreement
delivered in connection with its guarantee or any Hypothecator to observe or
perform any of its obligations or agreements under its hypothecation agreement
or in any instrument, document or agreement delivered in connection with its
hypothecation agreement.
4. Any information furnished to the Bank by the Borrower, any Guarantor or any
Hypothecator or any representation made by the Borrower in this Agreement or in
any instrument, document or agreement delivered in connection with this
Agreement, any Guarantor in its guarantee or in any Hypothecator in its
hypothecation agreement or in any instrument, document or agreement delivered
in connection with such hypothecation agreement, shall be incorrect, incomplete
or untrue at the time it is furnished or made to the Bank.
5. The failure of the Borrower, any Guarantor or any Hypothecator to pay or
perform any other present or future liability or obligation to the Bank or any
other person (including without limitation on any individual, government
authority or company).
6. The failure of the Borrower, any Guarantor or any Hypothecator to pay any
other indebtedness for borrowed money, acceleration of the maturity of such
indebtedness or the occurrence of any event which with notice or the lapse of
time would permit acceleration of such indebtedness.
7. The Borrower, any Guarantor or any Hypothecator that is a natural person,
shall become incompetent or die.
8. The Borrower, any Guarantor or any Hypothecator that is not a natural person,
shall dissolve, merge or consolidate, or sell or dispose of all or substantially
all of its assets.
9. An adverse change in the business, property, operations, management,
ownership or prospects of the Borrower, in the Collateral or in the collateral
securing the obligation of any Guarantor under its guarantee or in the financial
condition or credit standing of the Borrower, any Guarantor or any Hypothecator
shall have occurred in the sole opinion of the Bank.
10. The commencement of any proceeding, procedure or other remedy supplemental
to the enforcement of a judgment against the Borrower, any Guarantor or any
Hypothecator.
11. The validity or enforceability of this Agreement, any guarantee of this
Agreement or any hypothecation agreement or other document, instrument or
agreement delivered in connection with this Agreement, shall be contested or
declared null and void or the Borrower, any Guarantor or any Hypothecator shall
deny that it has any liability or obligation under or with respect to this
Agreement or any guarantee of this Agreement or any hypothecation agreement or
other document, instrument or agreement delivered in connection with this
Agreement.
12. The commencement by or against the Borrower, any Guarantor or any
Hypothecator of a case or proceeding under any bankruptcy, insolvency or other
law relating to the relief of debtors, the readjustment, competition or
extension of indebtedness or reorganization or liquidation.
If any Event of Default occurs, the Bank may, by written notice to the
Borrower take either or both of the following action, at the same or different
times: (a) terminate its obligation to make Loans and (b) declare the
outstanding Loans to be due whereupon the principal amount of, and accrued
interest on, the Loans together with all other amounts owed to the Bank under
this Agreement shall be due and payable provided that if an Event of Default
described in item 12 above shall occur, the Bank's obligation to make Loans
hereunder shall automatically terminate and the entire outstanding principal of,
and accrued interest on, the Loans and all other amounts owed to the Bank under
this Agreement shall become immediately and automatically due and payable
without demand or notice to the Borrower, any Guarantor or any Hypothecator.
Except as otherwise provided in this Agreement, the borrower waives
any presentment, demand, protest, notice of protest or other notice of any kind.
REMIDIES
Upon the failure of the Borrower of any Guarantor to pay any
obligations under this Agreement when becoming or made due in accordance with
this Agreement, the Bank may exercise any or all of the remedies that the Bank
has under this Agreement or at law. The Bank may, without demand of performance
or other demand, advertisement or notice of any kind to the Borrower (all and
each of which are expressly waived), immediately collect, receive appropriate
and realize upon the Collateral, or any part of it. The Bank may immediately
sell, assign, give options to purchase, contract to sell or otherwise dispose
of and deliver the Collateral, or any part of it, at one or more public or
private sale or sales, at any of the Bank's offices or elsewhere upon such terms
and conditions as the Bank may deem advisable. At any such sale, the Bank will
have the right to purchase the whole or any part of the Collateral, free of any
right of redemption which the Borrower may have (which right, to the extent
permitted by law, is expressly waived and released). The Bank will apply the
proceed of any such collection, recovery, receipt, appropriation, realization or
sale, after deducting all reasonable costs and expenses thereof, to the
obligations in such order as the Bank chooses. The Borrower agrees, that, to
the extent that notice of sale or other disposition is required by law, the Bank
need not give more than 5 business days notice of the time and place of any
public sale or of the time after which a private sale or other intended
disposition is to take place and that such notice is reasonable notification of
such matters. The Borrower also agrees to assemble the Collateral at such place
or places as the Bank designates by written notice.
No failure by the Bank to exercise, and no delay in exercising, any
right, remedy or power shall operate as a waiver of any such right, remedy or
power not shall any single or partial exercise by the Bank of any right, remedy
or power preclude any other or future exercise thereof or the exercise of any
other right, remedy or power.
Each and every right, remedy or power the Bank has under this
Agreement or at law is cumulative and not exclusive of any other right, remedy
or power, and may be exercised by the Bank at any time and from time to time.
If the Collateral secures other obligations to the Bank in addition to
the obligations under this Agreement, the Bank may apply the proceed to all of
the Borrower's obligations to the Bank (including the obligations under this
Agreement) in such order and priority as the Bank determines.
ENFORCEMENT COSTS
The Borrower agrees to pay all costs and expenses incurred by the Bank
(including but not limited to, reasonable attorneys' fees and expenses, and cost
of any insurance and payment of taxes or other charges) of, or incidental to the
custody, care, sale or collection of, or realization upon, any of the
Collateral, or in any way relating to the Bank's enforcement of the obligations
of the Borrower under his Agreement or the protection of the Bank's rights in
connection with this Agreement, whether or not litigation is commenced.
AMENDMENTS AND WAIVERS
This Agreement may not be amended, and compliance with its terms may
not be waived, orally or by course of dealing, but only by a writing signed by
an authorized officer of the Bank or as provided in the next sentence. The
Bank reserves the right to amend or modify the provisions of this Agreement at
any time by mailing or delivering a copy of such amendment or modification to
the Borrower. Such amendment or modification shall be binding on the Borrower
30 days after it is mailed or delivered and may apply to Loans outstanding on
the effective date as well as Loans made after the effective date.
ASSIGMENT
This Agreement shall be binding upon and inure to the benefit of the
Borrower and Bank and their respective successors and assigns. The Borrower may
not assign its rights and obligations under this Agreement. The Bank may assign
its rights and/or obligations under this Agreement at any time without the
consent of or notice to the Borrower.
ENTIRE AGREEMENT
This Agreement contains the entire agreement and understanding between
the Bank and the Borrower with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
SEVERABILITY
Every provision of this Agreement is intended to be severable; if any
term or provision of this Agreement shall be invalid, illegal or unenforceable
for any reason whatsoever, the validity, legality and enforceability for the
remaining provisions hereof shall not in any way be affected or impaired
thereby.
COMPLETION OF AGREEMENT
The Borrower authorizes the Bank to date this Agreement and to
complete any blank space herein.
NOTICES
Any notices to the Bank shall be effective only upon receipt by the
Bank and if directed to the address set forth opposite its name on the signature
page of this Agreement or such other address hereafter specified by written
notice from the Bank to the Borrower.
Notices, amendments, modifications, instructions, Periodic Statements
and other information and communications to the Borrower shall be sent to the
address set forth opposite the Borrower's name on the signature page o this
Agreement or such other address hereafter specified by written notice from the
Borrower to the Bank. All mail directed to such address shall be deemed
properly addressed and delivered and shall be effective whether or not received
by the Borrower. The borrower shall promptly notify the Bank of any change of
address.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that the Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and is duly qualified to do business in the State of
New York that the execution, delivery and performance of this Agreement are
within the Borrower's corporate powers and have been duly authorized by all
necessary action of its board of directors and shareholders; and that each
person executing this Agreement has the authority to execute and deliver this
Agreement on behalf of the Borrower. The Borrower further represents and
warrant that the borrower's name appearing on the signature page of this
Agreement is the Borrower's exact name as set forth in its principal document
of organization and the organizational number appearing on the signature page
of this Agreement is the organizational number assigned by the agency where its
organizational documents are filed or, if there is no number on he signature
page, the agency does nor assign organizational numbers.
APPLICABLE LAW
THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED, AND ALL RIGHTS AND
OBLIGATIONS HEREUNDER DETERMINED, IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGAR TO THE PRINCIPLES OF CONFLICT OF LAWS.
LEGAL PROCEEDINGS
THE BORROWER SUBMITS TO THE JURISDICTION OF STATE AND FEDERAL COURTS
LOCATED IN THE CITY AND STATE OF NEW YORK IN PERSONAM AND AGREES THAT ALL
ACTIONS AND PROCEEDINGS RELATED DIRECTLY OR INDIRECTLY TO THIS AGREEMENT SHALL
BE LITIGATED ONLY IN SAID COURTS OR COURTS LOCTED ELSEWHERE AS SELETED BY THE
BANK AND THAT SUCH COURTS ARE CONVENIENT FORUMS. THE BORROWER WAIVES PERSONAL
SEVICE UPON IT AND CONSENTS TO SERVICE OF PROCESS BY MAILING A COPY THEREOF TO
IT BY REGISTERED OR CERTIFIED MAIL.
IN ANY LEGAL PROCEEDING, THE BORROWER AGREES NOTTO MAKE ANY
COUNTERCLAIM AGAINST THE BAK OR TO REDUCE THE AMONT OF THE BANK'S CLAIM BY
OFFSETTING SUCH CLAIM BY THE AMOUNT OF ANY CLAIM THE BORRWER HAS AGAINST THE
BANK.
WAIVER OF TRIAL BY JURY
THE BORROWER AND THE BANK WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
International Freight Logistics LTD 0 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
By: /s/ Xxxxx Xxxxxxx
______________________________________
Name $ Title: Xxxxx Xxxxxxx, President
ORGANIZATIONAL NUMBER:
THE BANK OF NEW YORK 000 Xxxx Xxxxxxx Xx
Xxxxxx Xxxxxx, XX 00000
By:/s/
______________________________________
Name: ________________________________
Title: _______________________________
SCHEDULE A
TO
BUSINESS CREDITLINK AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
International Freight Logistics LTD
Before the Bank makes any Loan under the Business CreditLink
Agreement, the Bank must receive all of the following duly executed and
appropriately completed and in form and substance satisfactory to the Bank:
- The Business CreditLink Agreement.
- A corporate resolution of the Borrower authorizing the execution,
delivery and performance of the Business CreditLink Agreement on the
Bank's standard form.
- Signature cards for the Borrower on the Bank's standard form.
- UCC-1 Financing Statements in sufficient number for the Bank to
obtain a perfected security interest in the Collateral.
- Guarantees of the Borrower's obligations under the Business
CreditLink Agreement from each of Xxxxx Xxxxx and Xxxxx Xxxxxxx on the
Bank's standard form.
- As origination fee in the amount of $250.00.
SM The Bank of New York Direct 24 PC Banking is a service xxxx of The
Bank of New York.
