Exhibit 10.32
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Loan Agreement") is entered into on this 23rd
day of March, 2004, by and among XXXXXXX MACHINE WORKS, INC., a Texas
corporation ("Xxxxxxx"), EXCALIBUR HOLDINGS, INC., a Texas corporation
("Excalibur Holdings"), and EXCALIBUR INDUSTRIES, INC., a Delaware corporation
("Excalibur Industries") (Xxxxxxx, Excalibur Holdings, and Excalibur Industries
are collectively referred to herein as the "Borrowers"), XXXXXXX XXXXXXXX (the
"Guarantor") and STILLWATER NATIONAL BANK AND TRUST COMPANY (the "Lender").
RECITALS:
WHEREAS, the Borrowers are currently indebted to the Lender by virtue of
prior loans and advances as evidenced by the following notes:
Lender Original
Note No. Date Amount Principal Interest
-------- ---- ------ --------- --------
900005198301 04/15/2003 3,500,000 $3,500,000.00 198,791.06
900005423900 04/15/2003 $ 212,811.46 2,296.95
500,000
900005195802 04/15/2003 1,100,000 $1,100,000.00 61,880.84
900005550600 __________ 500,000 $ 400,547.00 11,759.12
The above described indebtedness is referred to hereafter as the "Prior Debt."
WHEREAS, the Prior Debt and agreements thereto are evidenced by various
loan agreements, promissory notes, security agreements, guaranties and other
instruments and agreements, all of which, collectively, are referred to
hereafter as the "Prior Loan Documents."
NOW THEREFORE, in consideration of the mutual covenants contained herein,
it is agreed as follows:
1. LENDING AGREEMENT. Subject to the terms and conditions hereinafter set
forth, Lender agrees to lend to Borrowers, and the Borrowers agree to
borrow from the Lender from time to time on the Borrowers' request, a sum
of up to FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) (the "Loan"), as
evidenced by the Note (as defined below), which funds advanced under the
Note (as hereafter defined) will be used by the Borrowers solely for the
purchase of equipment and other related personal property used in
connection with the conduct of the Borrowers' business, including but not
limited to the Equipment and other property described at Exhibit "A"
hereto (the "Equipment").
2. BORROWERS' NOTE. The Loan shall be evidenced by a Promissory Note of even
date herewith in the principal face amount of FIVE HUNDRED THOUSAND
DOLLARS ($500,000.00) in form and substance and payable on the terms
approved by the Lender (the "Note"). The Note will bear interest on the
unpaid principal balance at a per annum rate equal to the Reference Rate
plus two percent (2%), which interest rate will be adjusted on each day on
which a change in the Reference Rate occurs (the "Interest Rate"). The
"Reference Rate" will mean the prime rate of interest as published in the
"Money Rates" section of the of the Wall Street Journal, which rate is not
necessarily the lowest rate of interest charged by the Lender. Interest
only on the Note will be paid for ninety (90) days commencing on April 23,
2004, and on the 23rd day of each month thereafter, until June 23, 2004.
Commencing on July 23, 2004, and on the 23rd day of each month thereafter,
monthly payments of principal and interest will be payable on the Note
based on a sixty (60) month amortization at the Interest Rate. The entire
unpaid principal balance of the Note and all accrued interest thereon will
be due and payable on June 23, 2006 (the "Maturity Date").
3. RECOURSE. The Note will be full recourse to the Borrowers and the
Guarantors.
4. COLLATERAL SECURITY. The performance of all covenants and agreements
contained in this Loan Agreement and in the other documents executed or
delivered as a part of this transaction and the payment of the Note and
all renewals, amendments and modifications thereof shall be secured by the
following:
4.1 Security Agreement. The Borrowers shall execute and deliver to
Lender a Security Agreement (the "Security Agreement") granting a
security interest covering all of the Borrowers' goods, chattels,
accounts, inventory, equipment, contract rights, medical equipment,
accounts receivable, health care accounts receivable, general
intangibles, and all other personal property, whether now owned or
hereafter acquired, including but not limited to the property
described at Exhibit "A" hereto, and all proceeds, products, rents,
profits and income therefrom (the "Equipment") and UCC Financing
Statements as necessary to perfect Lender's security interest in
such Equipment.
4.2 Excalibur Holdings Stock Pledge Agreement. Excalibur Holdings shall
execute and deliver to the Lender a Stock Pledge Agreement (the
"Excalibur Holdings Stock Pledge Agreement") granting a security
interest covering one hundred percent (100%) of Excalibur Holdings'
common stock in Xxxxxxx, and all proceeds, profits, and income
therefrom (the "Xxxxxxx Stock").
4.3 Excalibur Industries Stock Pledge Agreement. Excalibur Industries
shall execute and deliver to the Lender a Stock Pledge Agreement
(the "Excalibur Industries Stock Pledge Agreement") granting a
security interest covering one hundred percent (100%) of Excalibur
Industries' common stock in Excalibur Holdings, and all proceeds,
profits, and income therefrom (the "Excalibur Holdings Stock").
4.4 Guaranty Agreement. Xxxxxxx Xxxxxxx shall execute and deliver an
unlimited Guaranty Agreement in favor of the Lender in form and
substance satisfactory to the Lender (the "Guaranty Agreement").
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5. REPRESENTATIONS AND WARRANTIES. The Borrowers jointly and severally
represent and warrant that:
5.1 Power and Authority. Each of the Borrowers is duly authorized,
qualified, and licensed under all applicable federal, state and
municipal laws, regulations, ordinances and orders of public
authorities to carry on Borrowers' business in Texas and all other
jurisdictions where Borrowers conduct business; the Borrowers have
adequate authority, power and legal right to enter into and carry
out the provisions of this Loan Agreement and other documents
contemplated herein and to consummate the transactions contemplated
hereby.
5.2 No Default. The making and performance by the Borrowers of this Loan
Agreement, or the documents to be executed in connection herewith,
will not violate any provision or constitute a default under any
indenture, agreement, or instrument to which any of the Borrowers is
bound or affected.
5.3 Ownership. Borrowers own good title to all of the Collateral.
5.4 Financial Statements. The Borrowers' financial statements heretofore
delivered or to be delivered hereafter to Lender are and will be
true and correct in all material respects, have been prepared in
accordance with generally accepted accounting principles
consistently applied, and fully and accurately present the financial
condition reflected therein without material change since the dates
thereof.
5.5 Full Disclosure. Neither this Loan Agreement, nor any statements or
documents referred to herein or delivered by the Borrowers pursuant
to this Loan Agreement, contains any untrue statement or omits to
state a material fact necessary to make the statement herein or
therein not misleading.
5.6 Survival of Representations and Warranties. All covenants,
representations and warranties made herein and under all documents
executed pursuant hereto shall survive the making of the loans
hereunder and the delivery of the Note and other instruments
executed in connection therewith until complete repayment of the
Note and all renewals and modifications thereof, and all other
indebtedness of Borrowers to Lender under the terms of this loan.
6. CONDITIONS PRECEDENT TO LOAN. The Lender will fund up to the full amount
of the Note as requested by the Borrowers on the date when all of the
following conditions precedent have been satisfied (the "Closing Date"):
6.1 Loan. As soon as all of the following conditions set forth at
Sections 6.1.1 through 6.1.6 hereof have been satisfied, and if no
Default has occurred hereunder, the Lender will advance funds under
the Note solely for the purposes set forth in Section 1 hereof.
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Borrowers shall perform the following covenants and deliver or cause
to be delivered to the Lender the following items, all of which will
be in form and substance satisfactory to Lender, and, where
necessary, duly executed and acknowledged, all of which are
conditions precedent to the funding of the Loan.
6.1.1 Closing Documents. This Loan Agreement, the Note, the Guaranty
Agreements, the Security Agreement, the Excalibur Security
Agreements, and all other documents as might be required by
the Lender, including but not limited to Financing Statements
(all of the foregoing are referred to herein as the "Loan
Documents") shall have been duly authorized, executed and
delivered to Lender.
6.1.2 Insurance. Borrowers will deliver to the Lender prior to the
initial funding of the Note, certificates of insurance
reflecting insurance coverage, premiums prepaid, with
insurance companies satisfactory to Lender, in such amounts
and against such risks as shall be required by the Lender,
including, but not limited to, the following:
6.1.2.1 public liability insurance which designates
Lender as an additional insured; and
6.1.2.2 property damage insurance covering the Collateral
for 100% of full replacement cost, which insurance
designates the Lender as a loss payee.
6.1.3 Financial Statements. The current financial statements of
the Borrowers and each of the Guarantors shall have been
delivered to the Lender, and all of which must be
satisfactory to the Lender.
6.1.4 Property List. The Borrowers shall have provided Lender with a
written request for advance and copies of invoices or purchase
orders reflecting an itemized list and cost of the Equipment
to be purchased with each advance under the Note.
7. COVENANTS. Until payment in full of the Note and all renewals and
modifications thereof, and performance of all obligations owing to Lender
under this Loan Agreement and the Loan Documents, unless the Lender shall
otherwise consent in writing or by e-mail (which consent shall not be
unreasonably withheld), the Borrowers jointly and severally covenant and
agree as follows:
7.1 Performance of Obligations. The Borrowers will promptly and
punctually perform all of the obligations hereunder and under the
Loan Documents, and under all other instruments executed or
delivered pursuant thereto;
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7.2 Use of Loan Proceeds. The Borrowers shall not permit any funds
advanced to Borrowers under the Loan Document to be used for any
purpose other than the purposes set forth in Section 1 hereof;
7.3 Books and Records. The Borrowers will keep and maintain accurate
books and records of account in regard to the Borrowers' business,
which will be kept in accordance with generally accepted accounting
principles consistently applied;
7.4 Lender's Access. Borrowers will at all reasonable times and as often
as Lender may request, upon reasonable advance notice from Lender,
permit any of Lender's officers and employees, and any authorized
representative of Lender, to visit Borrowers' offices to inspect the
Collateral;
7.5 Other Information. Within ten (10) days after becoming aware of the
existence thereof, the Borrowers shall notify the Lender of any
development or other information which may materially and adversely
affect (a) the Borrowers' properties, business prospects, profits or
condition (financial or otherwise); (b) the Collateral; or (c) the
performance by the Borrowers under this Agreement, any of the Loan
Documents, or any other instrument executed pursuant thereto.
Without limiting the foregoing, the notice required by this
paragraph 7.5 shall include information regarding (i) any
substantial dispute between any of the Borrowers and any
governmental regulatory body or law enforcement authority, including
without limitation medicare payment disputes, (ii) any material
litigation, arbitration or other proceeding, or (iii) any material
claim by or against any of the Borrowers;
7.6 Permits. The Borrowers currently hold and will maintain all
licenses, permits, charters and registrations which are material to
the conduct of Borrowers' business;
7.7 Compliance with Laws. The Borrowers will duly observe and conform,
in all material respects, to all laws, rules and regulations of any
governmental authority applicable to the Borrowers;
7.8 Debt Restriction. Borrowers will not incur or allow to be
outstanding any indebtedness for borrowed money, other than that
evidenced by the Note, indebtedness incurred for liability insurance
premiums financed for no more than twelve (12) months, and ordinary
trade payables, which are incurred in connection with the Borrowers'
business;
7.9 No Redemptions. The Borrowers will not redeem the common stock
interests in the Borrowers from any shareholder of any of the
Borrowers, and none of the Borrowers will permit the transfer of any
common stock interests in any of the Borrowers by any shareholder of
any of the Borrowers to any other shareholder or to any third
person;
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7.10 No Distributions. Borrowers will not, without the Lender's consent,
distributions of cash, or anything else of value, to any of the
shareholders of any of the Borrowers;
7.11 No Merger. None of the Borrowers will merge into or with or
consolidate with any corporation, partnership, limited liability
company, or other legal entity;
7.12 Restriction on New Business. None of the Borrowers will enter into
any businesses unrelated to the ownership and operation of a the
Borrowers' business;
7.13 Capital Expenditures. The Borrowers will not incur debt for capital
expenditures, in excess of Fifty Thousand Dollars ($50,000.00)
annually, including without limitation acquisition of real estate,
acquisition or construction of buildings, fixtures and equipment,
and acquisition of machinery, equipment, vehicles, furniture and
fixtures, except as otherwise contemplated by this Loan Agreement;
7.14 Loans. None of the Borrowers will make any loans or advances to any
of the members of any of the Borrowers, or to any of the Borrowers'
directors, employees, or affiliates without the prior written
consent of the Lender;
7.15 Sale of Assets. The Borrowers will not sell, lease or xxxxx x xxxx
or security interest on any of the Collateral, except for the lien
in favor of the Lender contemplated hereby;
7.16 No Compensation. None of the directors or shareholders of any of the
Borrowers will be paid any salary solely by virtue of their status
as directors or shareholders;
7.17 Insurance Coverage. The Borrowers will continuously maintain the
insurance coverages described at Section 6.1.2, and will pay all
insurance premiums therefor prior to the due dates thereof;
7.18 Prior Loan Documents. The Borrowers shall remain liable for the
Prior Debt evidenced by the Prior Loan Documents.
8. DEFAULT. Each of the following shall constitute a default hereunder and
under each of the Loan Documents ("Default"):
8.1 Nonpayment of Note. Failure to pay when due any interest on or
principal of the Note or any renewals or modifications thereof; or
8.2 Other Nonpayment. Failure to make payment when due of any other
amount payable to the Lender under the terms of this Loan Agreement
or any of the Loan Documents; or
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8.3 Breach of Covenants. Breach by Borrowers in the performance or
observance of any covenants made under this Agreement or any of the
Loan Documents, or under the terms of any other instrument delivered
to Lender in connection with this Loan Agreement; provided that with
respect to any non-monetary covenants, a breach of such non-monetary
covenant, which is not cured by the Borrowers within thirty (30)
days after the occurrence thereof; or
8.4 Creation of Liens. The creation or enforcement of any lien,
mortgage, pledge, security interest, encumbrance, or other lien
(including a lien of attachment, judgment or execution) securing a
charge or obligation affecting any or all of the Collateral; or
8.5 Ownership. The assignment, sale, transfer, encumbrance or conveyance
of all or any portion of the Borrowers' Collateral, without the
prior written consent of Lender, or if any common stock interests in
any of the Borrowers are issued by any of the Borrowers, or conveyed
by existing shareholders of any of the Borrowers without the
Lender's prior written consent, and without compliance with the
provisions of Section 7.21; or
8.6 Judgment. Entry by any court of final judgment (and the expiration
of all appeals) against any of the Borrowers which is not covered by
insurance, or an attachment of any property of any of the Borrowers,
either of which is not discharged to the satisfaction of Lender
within thirty (30) days thereof; or
8.7 Casualty Loss; Condemnation. Substantial damage or destruction by
casualty of all or a substantial portion of the Collateral (which
damage is not covered by insurance), or taking by rights of eminent
domain of all or any substantial portion of the real property owned
by the Borrowers which materially and adversely affects the
Borrowers' ability to conduct the Borrowers' business; or
8.8 Bankruptcy. The institution of bankruptcy, reorganization,
liquidation or receivership proceedings by or against any of the
Borrowers, or the making of any assignment for the benefit of
creditors by or against any of the Borrowers, if any of the
Borrowers becomes insolvent or any admission by any of the Borrowers
of its inability to pay its debts as such debts mature; or
8.9 Governmental Requirements. The issuance of any order, decree or
judgment pursuant to any judicial or administrative proceeding
declaring that the Borrowers' operation of the Borrowers' hospital
business is in material violation of any law, ordinance, rule or
regulation of any governmental agency, department, commission,
board, bureau or instrumentality; or
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8.10 Representations. Any representation, warranty, statement,
certificate, schedule or report made or furnished to the Lender by
any of the Borrowers proves to be false or erroneous in any material
respect at the time of the making thereof, and any of the Borrowers
fails to take or cause to be taken corrective measures with respect
to such representations or warranties satisfactory to the Lender
within thirty (30) days after written notice by the Lender, and such
corrective measures are not completed to Lender's satisfaction
within thirty (30) days after such written notice is given; or
8.11 Cross Default. Any default (as defined or described therein) under
the Prior Loan Documents securing the Prior Debt.
9. REMEDIES. On the occurrence of a Default, as defined in Section 8 of this
Agreement, the Lender may, at Lender's option, take any of the following
actions:
9.1 Acceleration of Note. The Lender may declare the Note and all
renewals and modifications thereof to be immediately due and payable
whereupon the Note and any renewals and modifications thereof shall
become forthwith due and payable without presentment, demand,
protest or notice of any kind, and the Lender shall be entitled to
proceed simultaneously or selectively and successively to enforce
its rights under the Note, this Loan Agreement, and any or all of
the Loan Documents, and any of the instruments executed pursuant to
the terms thereof, or in connection therewith, and all renewals and
modifications thereof, and to exercise all other remedies available
to the Lender at law or in equity. Nothing contained herein shall
limit Lender's rights and remedies available under applicable law.
9.2 Selective Enforcement. In the event the Lender shall elect to
selectively and successively enforce its rights under any of the
Loan Documents, such action shall not be deemed a waiver or
discharge of any other lien, encumbrance or security instrument
securing payment of the Note until such time as the Lender shall
have been paid in full all amounts owing under the Note. The
foreclosure of any lien provided pursuant to the terms of the Loan
Documents without the simultaneous foreclosure of all such liens
shall not merge the liens granted which are not foreclosed with any
interest that the Lender might obtain as a result of such selective
and successive foreclosure.
10. RELEASE. Borrowers and Guarantor hereby jointly and severally release,
acquit and forever discharge the Lender and the Lender's subsidiaries,
affiliates, officers, directors, shareholders, agents, employees,
servants, attorneys and representatives, as well as the respective heirs,
personal representatives, successors and assigns of any and all of them
(hereafter collectively called the "Released Lender Parties") from any and
all claims, demands, debts, actions, causes of action, suits, contracts,
agreements, obligations, accounts, defenses, offsets against indebtedness
and liabilities of any kind or character whatsoever, known or unknown,
suspected or unsuspected, in contract or in tort, at law or in equity,
including without implied limitation, such claims and defenses as fraud,
mistake, duress and usury, which the Borrowers or Guarantor ever had, now
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have, or might hereafter have against the Released Lender Parties, jointly
or severally, for or by reason of any matter, cause or thing whatsoever
occurring prior to the date of this Agreement, whether or not related in
whole or in part, directly or indirectly to the Borrowers' or Guarantor's
indebtedness. In addition, the Borrowers and Guarantor agree not to
commence, join in, prosecute or participate in any suit or other
proceeding in a position which is adverse to any of the Released Lender
Parties arising directly or indirectly from any of the foregoing matters.
11. MISCELLANEOUS. It is further agreed as follows:
11.1 Recording Fees. The Borrowers will pay all recording and filing fees
and notary fees;
11.2 Expenses. The Borrowers will pay all attorneys' fees and expenses
incurred by the Lender which are incidental to (a) the negotiation
and preparation of the Loan Documents; (b) the enforcement or
defense of any or all of the Loan Documents and any instrument
executed pursuant thereto or in connection therewith to evidence or
secure the Borrowers' indebtedness to the Lender, and all renewals
and modifications thereof; (c) the protection of the Lender's
collateral; (d) the negotiation and preparation of all renewals and
modifications to the Loan Documents; (e) the partial or full release
of any of the Lender's liens on the Collateral; and (f) any legal
advice sought by the Lender in connection with the Loan Documents.
11.3 Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given if delivered personally or
sent by facsimile transmission or by registered or certified mail,
postage prepaid, return receipt requested and addressed as listed
below or to such other address as the party concerned may substitute
by written notice to the other. All notices shall be deemed received
on the date of personal delivery, the date of confirmation of
receipt of a facsimile transmission, or within three days (excluding
Saturdays, Sundays and holidays recognized in the United States)
after being mailed:
The Borrowers and
the Guarantor: 00000 XX 0000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
With a copy to: Xxxxxx X. XxXxxxxxx
Xxxxxx & Xxxxx, LLP
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
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The Lender: Stillwater National Lender and Trust Company
0000 X. Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Executive Vice President
Fax: (000) 000-0000
With a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxxxx, P.C.
000 X. Xxxxxxxx
0000 Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
11.4 Amendment and Waiver. This Loan Agreement and the Loan Documents may
not be amended or modified in any way, except by an instrument in
writing executed by all of the parties thereto; provided, however,
Lender may, in writing: (i) extend the time for performance of any
of the obligations of Borrowers; (ii) waive any default by
Borrowers; and (iii) waive the satisfaction of any condition that is
precedent to the performance of Lender's obligations under this Loan
Agreement. In the event of a waiver of an event of default by
Lender, such specific event of default shall be deemed to have been
cured and not continuing, but no such waiver shall extend to the
reoccurrence of the same default or any subsequent or other default
or impair any consequence of such subsequent or other default.
11.5 Non-Waiver; Cumulative Remedies. No failure on the part of Lender to
exercise and no delay in exercising any right hereunder shall
operate as a waiver thereof, nor shall any single or partial
exercise by the Lender of any right hereunder preclude any other or
further right of exercise thereof. The remedies herein provided are
cumulative and not alternative.
11.6 Applicable Law. This Loan Agreement, all of the Loan Documents and
all other documents executed pursuant thereto and in connection
therewith to evidence or secure the loans contemplated hereby shall
be deemed to be a contract made under the laws of the State of
Oklahoma. Nothing in this Loan Agreement shall be construed to
constitute the Lender as a joint venturer with the Borrowers or to
constitute a partnership among any of such parties.
11.7 Descriptive Headings. The descriptive headings of the paragraphs of
this Loan Agreement are for convenience only and shall not be used
in the construction of the terms hereof.
11.8 Integrated Agreement. This Loan Agreement, all of the Loan Documents
and the other loan documents executed pursuant hereto or in
connection herewith constitute the entire agreement between the
parties hereto, and there are no agreements, understandings,
warranties or representations between the parties other than those
set forth in such documents, and this Loan Agreement, and the Loan
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Documents supercede and replace all prior agreements, letters, and
understandings between the Lender the Borrowers, including but not
limited to a certain letter dated December 12, 2003, signed by the
Lender and addressed to the Borrowers, and the Borrowers agree that
the Lender has no obligations under such letter.
11.9 Time of Essence. Time is of the essence of this Loan Agreement.
11.10 Binding Effect. This Loan Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective successors,
personal representatives, legal representatives and assigns.
11.11 Third Party Beneficiary. Nothing in this Loan Agreement, express or
implied, is intended to confer on any person, other than the parties
hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Loan Agreement.
11.12 Participation. Lender is authorized to sell participation interests
in the loan evidenced by this Agreement to other financial
institutions; and Borrowers agree that subject to the terms of the
agreements of participation, each holder of a participation interest
will be entitled to rely on the terms of the loan documents executed
in connection herewith as if such holder had been named as an
original party to the loan documents. In connection with the sale
and proposed sales of such participation interests, the Lender is
authorized to disclose all financial and other information about the
Borrowers and the Guarantors and provide copies of the Loan
Documents to all potential and actual participants, and any such
actions taken prior to the date hereof are hereby authorized.
11.13 Accuracy of Information. This Loan Agreement has been entered into
by the Lender based upon the information, data and representations
furnished by the Borrowers to the Lender, and the Lender's
obligation to close and fund the loan is subject to the continued
accuracy of all matters submitted to the Lender herewith. By
acceptance hereof, the Borrowers jointly and severally represent and
warrant to the Lender that all such information, data and
representations heretofore and hereafter furnished to the Lender are
complete and accurate in all material respects and there is
contained therein no untrue statement of a material fact or omission
to state a material fact necessary in order to make the statements
made in light of the circumstances under which they were made not
misleading, and this warranty shall be true at the time the loan is
closed and shall survive closing. There shall be no material change
at the time the loan is closed of the income and expenses of the
property, the financial condition of the Borrowers and all other
features of the transaction shall be as represented by the Borrowers
to the Lender.
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11.14 Maximum Legal Rate of Interest. Notwithstanding any other provisions
of this Loan Agreement or any of the Loan Documents to the contrary,
the total interest charges incurred by the Borrowers pursuant to the
Note shall not exceed the maximum legal rate of interest under
Oklahoma law. If the holder of the Note shall ever be entitled to
receive, collect or apply, as interest on the loans, any amount in
excess of the maximum legal rate of interest permitted to be charged
by applicable law, and, in the event any holder of the Note ever
receives, collects or applies, as interest, any such excess, such
amount which would be excessive interest shall be applied to the
reduction of the unpaid principal balance of the Note, and if the
principal balance is paid in full, any remaining excess shall be
forthwith paid to Borrowers. In determining whether or not the
interest paid or payable under any specific contingency exceeds the
highest lawful rate, Borrowers and Lender shall, to the maximum
extent permitted, under applicable law: (a) characterize any
non-principal payment as an expense, fee or premium rather than as
interest; (b) exclude voluntary prepayments and the effects thereof;
(c) "spread" the total amount of interest on the Note throughout the
entire term of the Note so that the interest rate is uniform
throughout the entire term of the Note.
11.15 No Responsibility of Lender. Notwithstanding any term or provision
of the Loan Documents, Lender shall not have any obligation or
responsibility for the management, conduct or operation of the
business and affairs of Borrowers. No provision hereof or of any of
the other Loan Documents shall be construed or interpreted to create
any relationship between Borrowers and Lender other than that of
debtor and creditor.
11.16 Jurisdiction. The Borrowers hereby jointly and severally submit to
the jurisdiction of any state or federal court located in Tulsa
County, Oklahoma, or in Xxxxxx County, Texas, as elected by the
Lender, in connection with any action or proceeding commenced for
the collection, enforcement, or defense of this Loan Agreement, the
Note, or any of the other Loan Documents, and hereby waives all
objections to venue or any objections based on the theory of
non-convenient forum in connection therewith.
11.17 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be an original instrument, but all
of which taken together will constitute one agreement.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed as of the day and year first above written.
XXXXXXX MACHINE WORKS, INC., A TEXAS
CORPORATION
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By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
EXCALIBUR HOLDINGS, INC., A TEXAS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
EXCALIBUR INDUSTRIES, INC., A DELAWARE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
(the "Borrowers")
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
XXXXXXX XXXXXXXX, INDIVIDUALLY
(the "Guarantor")
STILLWATER NATIONAL BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X Xxxxxx
Title: Senior Vice President
(the "Lender")
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