ECONOMIC DEVELOPMENT
COMMUNITY INVESTMENT FUND PROGRAM
LOAN AGREEMENT
(BIOFORCE NANOSCIENCES, INC.)
ARTICLE 1.0 - GENERAL
1.1 Identification of Parties. This Agreement is entered into by and
between the City of Ames, Iowa and the Ames Chamber of Commerce, jointly, as
Lenders (hereafter referred to as the "Lenders") and Bioforce Nanosciences, Inc.
(hereinafter referred to as the "Borrower").
1.2 Statement of Purpose. WHEREAS, as part of its policy to xxxxxx
economic development, the Lenders have adopted a program of financial assistance
to selected business enterprises by means of loans made in accordance with an
adopted loan policy known as THE COMMUNITY INVESTMENT FUND; and,
WHEREAS, the Lenders have each agreed to loan up to the amount of
Twenty-five Thousand dollars ($25,000) for a total loan of $50,000 to the
Borrower to assist in a certain project; and,
WHEREAS, the Borrower has made application to the City of Ames, Iowa, for
this loan; and
WHEREAS, the Borrower has qualified and been approved for such a loan and
has agreed to the conditions of the receipt of such a loan;
NOW, THEREFORE, the parties hereto, in consideration of the premises, do
agree as follows:
1.3 The Loan. The Lenders agree, upon the terms and condition hereinafter
set forth, to make a loan of money to the Borrower in a total amount not to
exceed $50,000 in order to assist in the financing of the project described in
Article 2.2 of this Agreement. The obligation of the Borrower to repay the loan
shall be evidenced by a Promissory Note of the Borrower to the Lenders in the
amount of $50,000, setting forth a five year schedule of principal and interest
payments, to be in the form attached hereto as Attachment A. In the event the
Borrower fails to receive and/or spend the full face amount of any loan as set
out herein and in said Promissory Note, then the amount of the loan shall be
reduced accordingly.
1.4 Reports. The Borrower shall submit the following reports:
Report Due Date
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Quarterly Finance & Progress Report 10th of the month following
the end of each quarter
Final Progress Report Within 30 days of project
completion
1.5 Assurances. The representations appearing in the Borrower's
application to the Lenders for the loan are incorporated herein and made a part
of this agreement.
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ARTICLE 2.0 - BORROWER'S PROJECT
2.1 Statement of Work and Services. The Borrower shall perform in a
satisfactory and proper manner, as determined by the Lenders, the activities
described in the approved application.
2.2 Project Description. As described in Borrower's approved loan
application attached.
2.3 Conveyance or Disposition of Project. The Borrower shall not sell,
transfer, convey, lease or otherwise dispose of the Project or of any part
thereof, without the consent of the Lenders until the date on which this loan
has been fully repaid.
2.4 Cost Sufficiency. The Lenders do not make any warranty, either
expressed or implied, that the proceeds of the loan available for payment of the
costs of the Project will be sufficient to pay all the costs which will be
incurred in that connection. The Lenders are under no obligation to advance
funds in addition to those specified in this agreement.
ARTICLE 3.0 - BORROWER'S CONTRIBUTED] [ON TO THE PROJECT
3.1 Source(s) of Other Contributions. (as stated in Borrowers Loan
Application)
3.2 The obligation of the Borrower to pay the principal of and interest on
this loan and to perform its other obligations as described within this loan
agreement will be secured by a security interest in and to certain property now
owned or hereafter acquired by Borrower together with the proceeds, products,
increase, issue, accessions, attachments, accessories, parts, additions,
repairs, replacements and substitutes of, to any and or all of the foregoing.
ARTICLE 4.0 - TERMS OF THE LOAN
4.1 Maximum Amount of Loan. It is expressly understood and agreed that the
maximum amount to be loaned to the Borrower by the Lender shall be $50,000.
4.2 Loan Rate. The Lenders and Borrower agree that all funds loaned to
Borrower shall be at an interest rate of Two and one hundred twenty-fifth
percent(2.125%), with a principle and interest payment due on the first day of
each month from and after the date of this Agreement.
4.3 Loan Term. The Lender and Borrower agree that the term of the loan
shall be five years.
4.4 Prepayment of Loan. The outstanding principle of the loan may be
prepaid by the Borrower at any time without penalty.
4.5 Penalty. If, at the end of two years from the effective date of this
agreement, the full-time equivalent positions of employment stated in paragraph
9.9 have not been created and retained for the benefit of the City of Xxxx, a
penalty of up to 30% of the loan balance after the 24th payment on the
amortization schedule stated in the Promissory Notice of this loan agreement
shall then be due and payable in accordance with the graduated penalty charge
below:
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Percent Jobs Created Percent Penalty
0 - 49.9% 30%
50% - 59.9% 25%
60% - 69.9% 20%
70% - 79.9% 15%
80% - 89.9% 10%
90% - 99.9% 5%
The penalty shall be due and payable immediately.
ARTICLE 5.0 - CONDITIONS OF PAYMENT OF LOAN FUNDS TO RECIPIENT
5.1 Requisition for Payment.
a. Payments to the Borrower. All payments to the Borrower shall be
subject to the receipt by the Lenders of a requisition for payment. The
requisition shall be made according to the format specified by the Lenders. Loan
proceeds shall be disbursed to the Borrower by means of two checks, each in the
amount of $25,000, one by the City of Xxxx, the other by the Xxxx Chamber of
Commerce.
b. Supporting Evidence to Accompany Requisition. The Borrower shall
submit to the Lenders such supporting evidence as may be reasonably required by
the Lenders to substantiate all payments which are requested and to substantiate
all payments then made with respect to the project. In addition, the Lenders may
require the Borrower to secure and provide evidence to the Lenders of lien
waivers from any contractor or subcontractor for all work done and for all
materials furnished by them for the project.
5.2 Time of Requisitions. Borrower shall requisition loan funds only as
needed.
5.3 Use of Loan Proceeds. Proceeds of the loan are to be disbursed in
accordance with Article 2.1. Borrower understands and agrees that loan proceeds
shall not be spent on any other purpose(s) or projects(s) than that described in
Article 2.1.
5.4 Suspension of Payments. The Lenders shall have the right to suspend,
withhold, or delay loan payments to the Borrower if it is determined that the
Borrower's project has been changed, interrupted, or significantly delayed or if
the Borrower is found to be not in compliance with any provision of this
Agreement.
5.5 Promissory Note Required. The Lenders shall not provide loan funds to
the Borrower prior to the completion and execution of the promissory note,
Attachment "A" to this Agreement.
ARTICLE 6.0 - LOAN REPAYMENT
6.1 Repayment Schedule. Repayment of the loan shall be made by the
Borrower to the Lenders as specified in Attachment "A", the Promissory Note.
6.2 Default. If any of the following events ("Event of Default") shall
occur and be continuing, the Lenders may declare the Borrower to be in default:
a. Any representation or warranty made by the Borrower under or in
connection with this agreement shall prove to have been incorrect in any
material respect
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when made; or
b. The Borrower shall fail to perform or observe any other term or
condition contained in this Agreement and any such failure shall remain
unremedied for thirty (30) days after written notice thereof shall have been
given to the Borrower by the Lenders; or
c. Execution shall have been levied against the project or any lien
creditors sued to enforce a judgment against the project, or such other
proceeding shall have been brought and shall continue unstayed and in effect for
a period of more than thirty (30) consecutive calendar days; or
d. The Borrower shall sell, transfer, lease or convey the project,
or any part thereof, except as herein provided, without the prior written
consent of the Lenders.
e. If Borrower's Project related business leaves Ames, Iowa before
five years from the date of this agreement, then liquidated damages in the
amount of $50,000.00 are due and payable to the Lenders along with the balance
of principal and interest due on the loan. Said damages pertain to lost economic
development.
6.3 Actions Upon a Declaration of Default. Upon declaration of default by
the Lenders, the Lenders may:
a. By notice to the Borrower, declare the loan payable under the
Promissory Note and this Agreement to be forthwith due and payable, without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by the Borrower;
b. Take whatever action at law or in equity may appear necessary or
desirable to collect the payments and other amounts then due and thereafter to
become due or to enforce performance and observance of any obligation, agreement
or covenant of the Borrower under this Agreement. No remedy herein conferred
upon or reserved to the Lenders is intended to be exclusive of any other remedy
or remedies, and each and every such remedy shall be cumulative, and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
6.4 Form of Payments. All payment of principal, interest, or penalty,
hereunder, or under the Promissory Note, shall be by two checks, each for one
half the amount due, made payable to the City of Xxxx and to the Ames Chamber of
Commerce, respectively.
ARTICLE 7.0 - ADMINISTRATIVE REQUIREMENTS
7.1 Administrative Costs. The Borrower agrees that no. loan proceeds shall
be used for administrative expenses, except for that part used for working
capital purposes that includes administrative expenses.
7.2 Accounts and Records. The Borrower shall maintain books, records,
documents and other evidence pertaining to all costs and expenses incurred and
revenues acquired under this Agreement to the extent and in such detail as will
properly reflect all costs, direct and indirect, of labor, materials, equipment,
supplies, services, and other costs and expenses of whatever nature, for which
payment is made with the proceeds of this loan.
7.3 Inspection of Records. Any time during normal business hours, upon 24
hours notice by the Lenders, and as frequently as is deemed necessary, the
Borrower shall make available to the Lenders, for its examination, all of its
records, contract, invoices,
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payrolls, personnel records, conditions of employment, and all other matters
covered by this Agreement.
7.4 Monitoring by Lenders. The Lenders shall have the right to make
scheduled and unscheduled visits to the Borrower in order to monitor project
performance and compliance with this Agreement.
7.5 Audit Requirements. Borrower shall have an audit of the project
conducted by a certified public accountant, to include all income and
expenditures of loan proceeds and local cash, if and when called for by the
Lenders.
ARTICLE 8.0 - OTHER CONDITIONS
8.1 This agreement is, and the Promissory Note, other documents and
agreements required by the Agreement when delivered hereunder or pursuant
thereto shall be, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms.
8.2 Neither the execution, delivery or performance of this Loan Agreement
or the Promissory Note, the consummation of the transactions contemplated
hereby, nor the fulfillment of or compliance with the terms and conditions of
this Loan Agreement conflicts with or results in a breach of any of the terms,
conditions or provisions of any restriction in any organizational document or
any agreement or instrument to which the Borrower is now a party or by which the
Borrower is bound, or constitutes a default under any of the foregoing, or.
results in the creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the Borrower under the terms of
any instrument or agreement, other than as provided in this Loan Agreement.
8.3 There is no litigation or proceeding pending, or to the knowledge of
the Borrower threatened, against the Borrower affecting in any manner whatsoever
the right of the Borrower to execute this Agreement or the other agreements
required to be executed by the Borrower under the Agreement or the ability of
the Borrower to pay the payments required hereunder or to otherwise comply with
the Borrower's obligations contained herein or therein.
8.4 The Borrower will comply in all material respects with all applicable
laws, rules, ordinances, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon the Borrower or upon the
Borrower's property except to the extent contested in good faith.
8.5 The Borrower agrees that the Lenders shall have no responsibility nor
incur any expense for maintenance or preservation of the Project or for the
payment of any taxes, assessments or other governmental charges assessed or
levied with respect to the Project.
ARTICLE 9 - MISCELLANEOUS
9.1 Agreement Coverage.
a. This instrument, and any referenced attachments hereto or
documents referred to herein, contains the entire agreement between the parties
and any statements,
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inducements or promises not contained herein shall not be binding upon said
parties. This Agreement shall be binding upon the successors in interest of the
respective parties.
b. If any of the provisions herein shall be in conflict with the
laws of the State of Iowa, or shall be declared to be invalid by any court of
record of this state, such invalidity shall be construed to affect only such
portions as are declared invalid or in conflict with the law and such remaining
portion or portions of the agreement shall remain in effect and shall be
construed as if such invalid or conflicting portion of such agreement were not
contained herein.
9.2 Term of the Agreement. This Agreement shall be in full force and
effect from the date hereof and shall continue in effect so long as the loan is
outstanding and unpaid or unforgiven.
9.3 Maintenance of the Project and Insurance. The Borrower covenants that,
so long as the loan is outstanding and unpaid, the Borrower shall keep, or cause
to be kept, the Project in as good repair and condition, as same may be, or may
be hereafter placed upon completion, ordinary wear and tear only excepted; and
shall not suffer or commit waste or damage upon the Project. In addition, the
Borrower may be required to keep in force insurance, premiums therefore to be
prepaid without notice or demand, against loss by fire, tornado, and other
hazards, casualties, and contingencies as the Lenders may require on the
Project, in an amount not less than the full insurable value of the Project, or
not less than the unpaid balance of principal on the loan with such insurance
payable to the Borrower and the Lenders as their interests may appear. The
Borrower may be required to deposit such policies with proper riders with the
Lenders.
9.4 Amendment of this Agreement. The Lenders or the Borrower may, during
the duration of this Agreement, deem it necessary to make alterations to the
provisions of this Agreement. Any changes to this Agreement, which are provided
by the Lenders, shall be incorporated into this Agreement. The provisions of the
amendment shall be in effect as of the date of the amendment unless otherwise
specified within the amendment. A waiver of any condition of this Agreement must
be in writing from the duly authorized official of the Lenders.
9.5 Indemnity, Fees and Expenses.
a. The Borrower will indemnify and save harmless the Lenders and
their officers and employees from and against any and all losses, by it or them
while it or they are acting in good faith to carry out the transactions
contemplated by this Agreement or to safeguard its or their interests or
ascertain, determine or carry out its or their obligations under this Agreement
or any law or contract applicable to said transaction.
b. The Borrower shall, upon demand, pay to the Lenders the amount of
any and all reasonable expenses, including the reasonable fees and expenses of
its counsel and of any experts and agents, which the Lenders may incur in
connection with the exercise or enforcement of any of the rights of the Lenders
hereunder, the failure by the Borrower to perform or observe any of the
provisions hereof, the collection of payments due under this Agreement, and any
other reasonable expenses of the Lenders related to the Project or this
financing (including reasonable attorney's fees) which are not otherwise
expressly required to be paid by the Borrower under the terms of this Agreement.
c. The Borrower agrees to pay all appraisal fees, survey fees,
recording fees, license and permit fees and insurance premiums related to
Borrower's Project.
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d. It is the intention of the parties that the Lenders shall not
incur pecuniary liability by reason of the terms of this Agreement and the
Borrower shall indemnify and hold harmless the Lenders (including any person at
any time serving as an officer or employee of the Lenders) against all claims by
or on behalf of any person, firm or corporation, arising out of the same, and
all costs and expenses incurred in connection with any such claim or in
connection with any action or proceeding brought thereon.
The obligation of the parties under this Section shall survive the
termination of this Agreement.
9.6 Binding Effect: Governing Law. This Agreement shall be binding upon
and inure to the benefit of the Borrower and the Lenders and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lenders. This Agreement shall also inure to the benefit of the
Lenders. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Iowa.
9.7 Obligations of the Borrower Hereunder Unconditional. The obligations
of the Borrower to make the payments required in Attachment "A" and other
articles hereof and to perform and observe the other agreements contained herein
shall be absolute and unconditional and shall not be subject to any defense or
any right of set-off, counterclaim or recoupment arising out of any breach by
the Lenders of any obligation to the Borrower, whether hereunder or otherwise,
or out of any indebtedness or liability at anytime owing to the Borrower by the
Lenders and until such time as the principal shall have been fully paid or
provision for the payment thereof shall have been made in accordance with the
Agreement, the Borrower (i) will riot suspend or discontinue any payments
provided for in Attachment "A" hereof, (ii) will perform and observe all other
agreements contained in this Agreement, and (iii) shall not terminate this
Agreement for any cause, it being the intention of the parties that the payments
required hereunder will be paid in full when due without any delay or diminution
whatsoever.
9.8 Waivers. No waiver by the Lenders of any default hereunder shall
operate as a waiver of any other default or of the same default on a future
occasion. No delay on the part of the Lenders in exercising any right or remedy
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right or remedy by the Lenders shall preclude future exercise thereof or the
exercise of any other right or remedy.
9.9 Additional Provisions. The following items of requirements are also
agreed to:
a. The Borrower shall create and retain not less than thirty (30)
permanent full-time jobs located in the City of Xxxx.
b. Loan proceeds shall not be advanced nor shall loan proceeds be
used to reimburse project expenses prior to approval of a loan agreement between
the Lenders and Borrower.
9.10 Suspension and Termination of This Agreement
a. Suspension. If the Borrower fails to comply with the conditions
of this Agreement, the Lenders may, alter notice to the Borrower, suspend the
Agreement and withhold further payments or prohibit the Borrower from incurring
additional obligations of funds, pending corrective action by the Borrower or a
decision to terminate. The Lenders may determine to allow such necessary and
proper costs which the Borrower could not
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reasonably avoid during the period of suspension.
b. Termination for Cause. The Lenders may terminate this Agreement
in whole, or in part, at any time before the date of completion, whenever it is
determined that the Borrower has failed to comply with the conditions of the
Agreement after notice and reasonable opportunity to cure. The Lenders shall
promptly notify the Borrower in writing of the determination and the reasons for
the termination, together with the effective date. Payments made to Borrower or
recoveries by the Lenders under Agreements terminated for cause shall be in
accord with the legal rights and liabilities of the parties. Payments and
recoveries may include, but are not limited to the following: Payments may be
allowed for costs determined to be in compliance with this Agreement up to the
date of termination, based on audits approved by Lenders. The Borrower shall
return to the Lenders all unspent funds within one week of notice of
termination. Further, any costs previously paid by the Lenders which are
subsequently determined to be unallowable through audit shall be returned to the
Lenders within thirty (30) days of such determination.
9.11 Litigation. The Borrower agrees to pay the costs of any litigation
arising from the failure of the Borrower to comply with this Agreement or
resulting from the negligence or incompetence of the Borrower. Furthermore, the
Borrower shall indemnify and save harmless the Lenders from suits, actions or
claims of any character brought for or on account of any injuries or damages
received by any person or property resulting from operations of the Borrower or
any persons working under him, carrying out the terms of this Agreement.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the
day and year last specified below:
XXXX CHAMBER OF COMMERCE THE CITY OF AMES IOWA
By: /s/ Xxxxx Xxxxx By: /s/ Xxx Xxxxxxx
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Xxx Xxxxxxx, Mayor
Attest: /s/ Xxxxx Xxxxxx Attest: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, City Clerk
Date: 2-24-05 Date: Jan. 28, 2005
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BIOFORCE NANOSCIENCES, INC.
By: /s/ Xxxxxxxx Xxxx Date: 11 Jan 05
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Xxxxxxxx Xxxx, President & CEO
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