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READY MIX,
INC., a Nevada corporation
3430 EAST FLAMINGO ROAD, SUITE 100
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Lender:
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NATIONAL
BANK OF ARIZONA, a national banking association
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LAS VEGAS,
NV 89121
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Mesa Main
Office
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1119 WEST
SOUTHERN AVENUE
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MESA, AZ
85210
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Principal
Amount: $1,500,000.00
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Interest Rate:
7.345%
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Date of Note:
May 26, 2006
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PROMISE TO
PAY . READY MIX, INC., a
Nevada corporation (“Borrower”) promises to pay to
NATIONAL BANK OF ARIZONA, a national banking association
(“Lender”), or order, in lawful money of the United
States of America, the principal amount of One Million Five Hundred
Thousand & 00/100 Dollars ($1,500,000.00), together with
interest at the rate of 7.345% per annum on the unpaid principal
balance from May 26, 2006, until paid in full. The interest
rate may change under the terms and conditions of the
“INTEREST AFTER DEFAULT” section.
PAYMENT . Borrower will pay this loan in 180 payments of
$13,866.95 each payment. Borrower’s first payment is due
June 26, 2006, and all subsequent payments are due on the same
day of each month after that. Borrower’s final payment will
be due on May 26, 2021, and will be for all principal and all
accrued interest not yet paid. Payments include principal and
interest. Unless otherwise agreed or required by applicable law,
payments will be applied first to any accrued unpaid interest; then
to principal; then to any unpaid collection costs; and then to any
late charges. The annual interest rate for this Note is computed on
a 365/360 basis; that is, by applying the ratio of the annual
interest rate over a year of 360 days, multiplied by the
outstanding principal balance, multiplied by the actual number of
days the principal balance is outstanding. Borrower will pay Lender
at Lender’s address shown above or at such other place as
Lender may designate in writing.
EFFECTIVE
RATE. Borrower agrees to
an effective rate of interest that is the rate specified in this
Note plus any additional rate resulting from any other charges in
the nature of interest paid or to be paid in connection with this
Note.
PREPAYMENT
PENALTY; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and other
prepaid finance charges are earned fully as of the date of the loan
and will not be subject to refund upon early payment (whether
voluntary or as a result of default), except as otherwise required
by law. In any event, even upon full prepayment of this Note,
Borrower understands that Lender is entitled to a minimum
interest charge of $250.00. Upon prepayment of this Note, Lender is
entitled to the following prepayment penalty:
“Prepayment” shall be defined as any accumulated
unscheduled principal reduction of more than 5% of the original
principal note amount, occurring annually from the anniversary date
of this Note. If Borrower chooses to prepay this Note at any time
during the first five years, in whole or in part; a prepayment
penalty will be due concurrent with the prepayment equal to 5% of
the prepayment during the first year, 4% during the second year, 3%
during the third year, 2% during the fourth year and 1% during the
fifth year. Thereafter, the Borrower may prepay this Note, in whole
or in part, without prepayment penalty. Partial prepayments shall
then be applied against required payments of the most remote
maturity, and will not extend the dates nor change the amounts of
subsequent installment payments. No partial prepayment may be made
with funds provided through borrowings. Other than
Borrower’s obligation to pay any minimum interest charge and
prepayment penalty, Borrower may pay all or a portion of the amount
owed earlier than it is due. Early payments will not, unless agreed
to by Lender in writing, relieve Borrower of Borrower’s
obligation to continue to make payments under the payment schedule.
Rather, early payments will reduce the principal balance due and
may result in Borrower’s making fewer payments. Borrower
agrees not to send Lender payments marked “paid in
full”, “without recourse”, or similar language.
If Borrower sends such a payment, Lender may accept it without
losing any of Lender’s rights under this Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any
check or other payment instrument that indicates that the payment
constitutes “payment in full” of the amount owed or
that is tendered with other conditions or limitations or as full
satisfaction of a disputed amount must be mailed or delivered to:
NATIONAL BANK OF ARIZONA, a national banking association; Mesa Main
Office; 1119 WEST SOUTHERN AVENUE; MESA, AZ 85210.
LATE
CHARGE. If a payment is
10 days or more late, Borrower will be charged 10.000% of the
regularly scheduled payment.
INTEREST
AFTER DEFAULT. Upon
default, including failure to pay upon final maturity, the interest
rate on this Note shall be increased to 18.000% per annum. However,
in no event will the interest rate exceed the maximum interest rate
limitations under applicable law.
DEFAULT. Each of the following shall constitute an event
of default (“Event of Default”) under this
Note:
Payment
Default. Borrower fails
to make any payment when due under this Note.
Other
Defaults. Borrower fails
to comply with or to perform any other term, obligation, covenant
or condition contained in this Note or in any of the related
documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between
Lender and Borrower.
Default in
Favor of Third Parties. Borrower or any Grantor defaults under any loan,
extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Borrower’s
property or Borrower’s ability to repay this Note or perform
Borrower’s obligations under this Note or any of the related
documents.
Environmental Default. Failure of any party to comply with or perform
when due any term, obligation, covenant or condition contained in
any environmental agreement executed in connection with any
loan.
False
Statements. Any warranty,
representation or statement made or furnished to Lender by Borrower
or on Borrower’s behalf under this Note or the related
documents is false or misleading in any material respect, either
now or at the time made or furnished or becomes false or misleading
at any time thereafter.
Insolvency. The dissolution or termination of
Borrower’s existence as a going business, the insolvency of
Borrower, the appointment of a receiver for any part of
Borrower’s property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Creditor or
Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by
any governmental agency against any collateral securing the loan.
This includes a garnishment of any of Borrower’s accounts,
including deposit accounts, with Lender. However, this Event of
Default shall not apply if there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is
the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture
proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or
bond for the dispute.
Events
Affecting Guarantor. Any
of the preceding events occurs with respect to any guarantor,
endorser, surety, or accommodation party of any of the indebtedness
or any guarantor, endorser, surety, or accommodation party dies or
becomes incompetent, or revokes or disputes the validity of, or
liability under, any guaranty of the indebtedness evidenced by this
Note. In the event of a death, Lender, at its option, may, but
shall not be required to, permit the guarantor’s estate to
assume unconditionally the obligations arising under the guaranty
in a manner satisfactory to Lender, and, in doing so, cure any
Event of Default.
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PROMISSORY NOTE
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Loan No:
9001
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(Continued)
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Page 2
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Change In
Ownership. Any change in
ownership of twenty-five percent (25%) or more of the common stock
of Borrower.
Adverse
Change. A material
adverse change occurs in Borrower’s financial condition, or
Lender believes the prospect of payment or performance of this Note
is impaired.
Insecurity. Lender in good faith believes itself
insecure.
Cure
Provisions. If any
default, other than a default in payment is curable and if Borrower
has not been given a notice of a breach of the same provision of
this Note within the preceding twelve (12) months, it may be
cured if Borrower, after receiving written notice from Lender
demanding cure of such default: (1) cures the default within
fifteen (15) days; or (2) if the cure requires more than
fifteen (15) days, immediately initiates steps which Lender
deems in Lender’s sole discretion to be sufficient to cure
the default and thereafter continues and completes all reasonable
and necessary steps sufficient to produce compliance as soon as
reasonably practical.
LENDER’S RIGHTS. Upon default, Lender may declare the entire
unpaid principal balance under this Note and all accrued unpaid
interest immediately due, and then Borrower will pay that
amount.
ATTORNEYS’ FEES; EXPENSES.
Lender may hire or pay someone else
to help collect this Note if Borrower does not pay. Borrower will
pay Lender that amount. This includes, subject to any limits under
applicable law. Lender’s attorneys’ fees and
Lender’s legal expenses, whether or not there is a lawsuit,
including attorneys’ fees, expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic
stay or injunction), and appeals. However, Borrower will only pay
attorneys’ fees of an attorney not Lender’s salaried
employee, to whom the matter is referred after Borrower’s
default. If not prohibited by applicable law, Borrower also will
pay any court costs, in addition to all other sums provided by
law.
GOVERNING
LAW. This Note will be governed by federal law applicable to Lender
and, to the extent not preempted by federal law, the laws of the
State of Arizona without regard to its conflicts of law provisions.
This Note has been accepted by Lender in the State of
Arizona.
DISHONORED
ITEM FEE. Borrower will
pay a fee to Lender of $28.00 if Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF
SETOFF. To the extent
permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking,
savings, or some other account). This includes all accounts
Borrower holds jointly with someone else and all accounts Borrower
may open in the future. However, this does not include any IRA or
Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Borrower authorizes Lender, to the extent
permitted by applicable law, to charge or setoff all sums owing on
the indebtedness against any and all such accounts.
COLLATERAL. Borrower acknowledges this Note is secured by a
Deed of Trust and Fixture Filing, and an Assignment of Rents from
Borrower to Lender of even date.
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1.
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ARBITRATION IS FINAL AND BINDING ON
THE PARTIES AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A
COURT.
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2.
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IN
ARBITRATION THE PARTIES ARE WAIVING THEIR RIGHT TO LITIGATE IN
COURT, INCLUDING THEIR RIGHT TO A JURY TRIAL.
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3.
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DISCOVERY IN ARBITRATION IS MORE
LIMITED THAN DISCOVERY IN COURT.
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4.
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ARBITRATORS ARE NOT REQUIRED TO
INCLUDE FACTUAL FINDINGS OR LEGAL REASONING IN THEIR AWARDS. THE
RIGHT TO APPEAL OR SEEK MODIFICATION OF ARBITRATORS’ RULINGS
IS VERY LIMITED.
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5.
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A
PANEL OF ARBITRATORS MIGHT INCLUDE AN ARBITRATOR WHO IS OR WAS
AFFILIATED WITH THE BANKING INDUSTRY.
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6.
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ARBITRATION WILL APPLY TO ALL
DISPUTES BETWEEN THE PARTIES, NOT JUST THOSE CONCERNING THE
AGREEMENT.
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7.
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IF
YOU HAVE QUESTIONS ABOUT ARBITRATION, CONSULT YOUR ATTORNEY OR THE
AMERICAN ARBITRATION ASSOCIATION.
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(a) Any
claim or controversy (“Dispute”) between or among the
parties and their employees, agents, affiliates, and assigns,
including, but not limited to, Disputes arising out of or relating
to this agreement, this arbitration provision (“arbitration
clause”),-or any related agreements or instruments relating
hereto or delivered in connection herewith (“Related
Agreements”), and including, but not limited to, a Dispute
based on or arising from an alleged tort, shall at the request of
any party be resolved by binding arbitration in accordance with the
applicable arbitration rules of the American Arbitration
Association (the “Administrator”). The provisions of
this arbitration clause shall survive any termination, amendment,
or expiration of this agreement or Related Agreements. The
provisions of this arbitration clause shall supersede any prior
arbitration agreement between or among the parties.
(b) The
arbitration proceedings shall be conducted in a city mutually
agreed by the parties. Absent such an agreement, arbitration will
be conducted in Phoenix, Arizona or such other place as may be
determined by the Administrator. The Administrator and the
arbitrator(s) shall have the authority to the extent practicable to
take any action to require the arbitration proceeding to be
completed and the arbitrator(s)’ award issued within
150 days of the filing of the Dispute with the Administrator.
The arbitrator(s) shall have the authority to impose sanctions on
any party that fails to comply with time periods imposed by the
Administrator or the arbitrator(s), including the sanction of
summarily dismissing any Dispute or defense with prejudice. The
arbitrator(s) shall have the authority to resolve any Dispute
regarding the terms of this agreement, this arbitration clause, or
Related Agreements, including any claim or controversy regarding
the arbitrability of any Dispute. All limitations periods
applicable to any Dispute or defense, whether by statute or
agreement, shall apply to any arbitration proceeding hereunder and
the arbitrator(s) shall have the authority to decide whether any
Dispute or defense is barred by a limitations period and, if so, to
summarily enter an award dismissing any Dispute or defense on that
basis. The doctrines of compulsory counterclaim, res judicata, and
collateral estoppel shall apply to any arbitration proceeding
hereunder so that a party must state as a counterclaim in the
arbitration proceeding any claim or controversy which arises out of
the transaction or occurrence that is the subject matter of the
Dispute. The arbitrator(s) may in the arbitrator(s)’
discretion and at the request of any party: (1) consolidate in a
single arbitration proceeding any other claim arising out of the
same transaction involving another party to that transaction that
is bound by an arbitration clause with Lender, such as borrowers,
guarantors, sureties, and owners of collateral; and (2) consolidate
or administer multiple arbitration claims or controversies as a
class action in accordance with Rule 23 of the Federal Rules
of Civil Procedure.
(c) The
arbitrator(s) shall be selected in accordance with the rules of the
Administrator from panels maintained by the Administrator. A single
arbitrator shall have expertise in the subject matter of the
Dispute. Where three arbitrators conduct an arbitration proceeding,
the Dispute shall be decided by a majority vote of the three
arbitrators, at least one of whom must have expertise in the
subject matter of the Dispute and at least one of whom must be a
practicing attorney. The arbitrator(s) shall award to the
prevailing party recovery of all costs and fees (including
attorneys’ fees and costs, arbitration administration fees
and costs, and arbitrator(s)’ fees). The arbitrator(s),
either during the pendency of the arbitration proceeding or as part
of the arbitration award, also may grant provisional or ancillary
remedies including but not limited to an award of injunctive
relief, foreclosure, sequestration, attachment, replevin,
garnishment, or the appointment of a receiver.
(d) Judgement upon an arbitration award may
be entered in any court having jurisdiction, subject to the
following limitation: the arbitration award is binding upon the
parties only if the amount does not exceed Four Million Dollars
($4,000,000.00); if the award exceeds that limit, either party may
demand the right to a court trial. Such a demand must be filed with
the Administrator within thirty (30) days following
the
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PROMISSORY NOTE
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Loan No:
9001
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(Continued)
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Page 3
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date of the
arbitration award; if such a demand is not made with that time
period, the amount of the arbitration award shall be binding. The
computation of the total amount of an arbitration award shall
include amounts awarded for attorneys’ fees and costs,
arbitration administration fees and costs, and arbitrator(s)’
fees.
(e) No
provision of this arbitration clause, nor the exercise of any
rights hereunder, shall limit the right of any party to:
(1) judicially or non-judicially foreclose against any real or
personal property collateral or other security; (2) exercise
self-help remedies, including but not limited to repossession and
setoff rights; or (3) obtain from a court having jurisdiction
thereover any provisional or ancillary remedies including but not
limited to injunctive relief, foreclosure, sequestration,
attachment, replevin, garnishment, or the appointment of a
receiver. Such rights can be exercised at any time, before or after
initiation of an arbitration proceeding, except to the extent such
action is contrary to the arbitration award. The exercise of such
rights shall not constitute a waiver of the right to submit any
Dispute to arbitration, and any claim or controversy related to the
exercise of such rights shall be a Dispute to be resolved under the
provisions of this arbitration clause. Any party may initiate
arbitration with the Administrator. If any party desires to
arbitrate a Dispute asserted against such party in a complaint,
counterclaim, cross-claim, or third-party complaint thereto, or in
an answer or other reply to any such pleading, such party must make
an appropriate motion to the trial court seeking to compel
arbitration, which motion must be filed with the court within
45 days of service of the pleading, or amendment thereto,
setting forth such Dispute. If arbitration is compelled after
commencement of litigation of a Dispute, the party obtaining an
order compelling arbitration shall commence arbitration and pay the
Administrator’s filing fees and costs within 45 days of
entry of such order. Failure to do so shall constitute an agreement
to proceed with litigation and waiver of the right to arbitrate. In
any arbitration commenced by a consumer regarding a consumer
Dispute, Lender shall pay one half of the Administrator’s
filing fee, up to $250.
(f) Notwithstanding the applicability of
any other law to this agreement, the arbitration clause, or Related
Agreements between or among the parties, the Federal Arbitration
Act, 9 U.S.C. Section 1 et seq., shall apply to the
construction and interpretation of this arbitration clause. If any
provision of this arbitration clause should be determined to be
unenforceable, all other provisions of this arbitration clause
shall remain in full force and effect.
SUCCESSOR
INTERESTS. The terms of
this Note shall be binding upon Borrower, and upon Borrower’s
heirs, personal representatives, successors and assigns, and shall
inure to the benefit of Lender and its successors and
assigns.
GENERAL
PROVISIONS. If any part
of this Note cannot be enforced, this fact will not affect the rest
of the Note. Lender may delay or forgo enforcing any of its rights
or remedies under this Note without losing them. Borrower and any
other person who signs, guarantees or endorses this Note, to the
extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Note, and
unless otherwise expressly stated in writing, no party who signs
this Note, whether as maker, guarantor, .accommodation maker or
endorser, shall be released from liability. All such parties agree
that Lender may renew or extend (repeatedly and for any length of
time) this loan or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender’s security
interest in the collateral; and take any other action deemed
necessary by Lender without the consent of or notice to anyone. All
such parties also agree that Lender may modify this loan without
the consent of or notice to anyone other than the party with whom
the modification is made. The obligations under this Note are joint
and several.
PRIOR TO
SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE. BORROWER AGREES TO THE TERMS OF THE
NOTE.
BORROWER
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY
NOTE.
READY MIX,
INC., A NEVADA CORPORATION
By: /s/ Bradley
E.
Larson
BRADLEY E. LARSON,
Chief Executive Officer of
READY MIX, INC., a Nevada
corporation
LASER PRO Lending, Ver. 5.31.00.004
Copr. Harland Financial Solutions, Inc. 1997, 2006. All Rights
Reserved. — AZ C:\LPWIN\CFI\LPL\D20.FC TR-26474
PR-1
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READY MIX,
INC., a Nevada corporation
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Lender:
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NATIONAL
BANK OF ARIZONA, a national banking
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3430 EAST
FLAMINGO ROAD, SUITE 100
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association
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LAS VEGAS,
NV 89121
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Mesa Main
Office
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1119 WEST
SOUTHERN AVENUE
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MESA, AZ
85210
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THIS
BUSINESS LOAN AGREEMENT dated May 26, 2006, is made and
executed between READY MIX, INC., a Nevada corporation
(“Borrower”) and NATIONAL BANK OF ARIZONA, a national
banking association (“Lender”) on the following terms
and conditions. Borrower has received prior commercial loans from
Lender or has applied to Lender for a commercial loan or loans or
other financial accommodations, including those which may be
described on any exhibit or schedule attached to this Agreement
(“Loan”). Borrower understands and agrees that:
(A) in granting, renewing, or extending any Loan, Lender is
relying upon Borrower’s representations, warranties, and
agreements as set forth in this Agreement; (B) the granting,
renewing, or extending of any Loan by Lender at all times shall be
subject to Lender’s sole judgment and discretion; and
(C) all such Loans shall be and remain subject to the terms
and conditions of this Agreement.
TERM. This Agreement shall be effective as of
May 26, 2006, and shall continue in full force and effect
until such time as all of Borrower’s Loans in favor of Lender
have been paid in full, including principal, interest, costs,
expenses, attorneys’ fees, and other fees and charges, or
until such time as the parties may agree in writing to terminate
this Agreement.
CONDITIONS
PRECEDENT TO EACH ADVANCE. Lender’s obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be
subject to the fulfillment to Lender’s satisfaction of all of
the conditions set forth in this Agreement and in the Related
Documents.
Loan
Documents. Borrower shall
provide to Lender the following documents for the Loan: (1) the
Note; (2) Security Agreements granting to Lender security
interests in the Collateral; (3) financing statements and all
other documents perfecting Lender’s Security Interests;
(4) evidence of insurance as required below; (5) together
with all such Related Documents as Lender may require for the Loan;
all in form and substance satisfactory to Lender and Lender’s
counsel.
Borrower’s Authorization.
Borrower shall have provided in form
and substance satisfactory to Lender properly certified
resolutions, duly authorizing the execution and delivery of this
Agreement, the Note and the Related Documents. In addition,
Borrower shall have provided such other resolutions,
authorizations, documents and instruments as Lender or its counsel,
may require.
Payment of
Fees and Expenses. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
Representations and Warranties.
The representations and warranties
set forth in this Agreement, in the Related Documents, and in any
document or certificate delivered to Lender under this Agreement
are true and correct.
No Event of
Default. There shall not
exist at the time of any Advance a condition which would constitute
an Event of Default under this Agreement or under any Related
Document.
REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to
Lender, as of the date of this Agreement, as of the date of each
disbursement of loan proceeds, as of the date of any renewal,
extension or modification of any Loan, and at all times any
Indebtedness exists:
Organization. Borrower is a corporation for profit which is,
and at all times shall be, duly organized, validly existing, and in
good standing under and by virtue of the laws of the State of
Nevada. Borrower is duly authorized to transact business in the
State of Arizona and all other states in which Borrower is doing
business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing
business. Specifically, Borrower is, and at all times shall be,
duly qualified as a foreign corporation in all states in which the
failure to so qualify would have a material adverse effect on its
business or financial condition. Borrower has the full power and
authority to own its properties and to transact the business in
which it is presently engaged or presently proposes to engage.
Borrower maintains an office at 3430 EAST FLAMINGO ROAD, SUITE 100,
LAS VEGAS, NV 89121. Unless Borrower has designated otherwise in
writing, the principal office is the office at which Borrower keeps
its books and records including its records concerning the
Collateral. Borrower will notify Lender prior to any change in the
location of Borrower’s state of organization or any change in
Borrower’s name. Borrower shall do all things necessary to
preserve and to keep in full force and effect its existence, rights
and privileges, and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to Borrower and
Borrower’s business activities.
Assumed
Business Names. Borrower
has filed or recorded all documents or filings required by law
relating to all assumed business names used by Borrower. Excluding
the name of Borrower, the following is a complete list of all
assumed business names under which Borrower does business:
None.
Authorization. Borrower’s execution, delivery, and
performance of this Agreement and all the Related Documents have
been duly authorized by all necessary action by Borrower and do not
conflict with, result in a violation of, or constitute a default
under (1) any provision of (a) Borrower’s articles
of incorporation or organization, or bylaws, or (b) any agreement
or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to
Borrower or to Borrower’s properties.
Financial
Information. Each of
Borrower’s financial statements supplied to Lender truly and
completely disclosed Borrower’s financial condition as of the
date of the statement, and there has been no material adverse
change in Borrower’s financial condition subsequent to the
date of the most recent financial statement supplied to Lender.
Borrower has no material contingent obligations except as disclosed
in such financial statements.
Legal
Effect. This Agreement
constitutes, and any instrument or agreement Borrower is required
to give under this Agreement when delivered will constitute legal,
valid, and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms.
Properties. Except as contemplated by this Agreement or as
previously disclosed in Borrower’s financial statements or in
writing to Lender and as accepted by Lender, and except for
property tax liens for taxes not presently due and payable,
Borrower owns and has good title to all of Borrower’s
properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to
such properties. All of Borrower’s properties are titled in
Borrower’s legal name, and Borrower has not used or filed a
financing statement under any other name for at least the last five
(5) years.
Hazardous
Substances. Except as
disclosed to and acknowledged by Lender in writing, Borrower
represents and warrants that: (1) During the period of
Borrower’s ownership of the Collateral, there has been no
use, generation, manufacture, storage, treatment, disposal, release
or threatened release of any Hazardous Substance by any person on,
under, about or from any of the Collateral. (2) Borrower has
no knowledge of, or reason to believe that there has been
(a) any breach or violation of any Environmental Laws;
(b) any use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any Hazardous Substance
on, under, about or from the
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BUSINESS LOAN
AGREEMENT
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Loan No:
9001
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(Continued)
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Page 2
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Collateral by
any prior owners or occupants of any of the Collateral; or
(c) any actual or threatened litigation or claims of any kind
by any person relating to such matters. (3) Neither Borrower
nor any tenant, contractor, agent or other authorized user of any
of the Collateral shall use, generate, manufacture, store, treat,
dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be
conducted in compliance with all applicable federal, state, and
local laws, regulations, and ordinances, including without
limitation all Environmental Laws. Borrower authorizes Lender and
its agents to enter upon the Collateral to make such inspections
and tests as Lender may deem appropriate to determine compliance of
the Collateral with this section of the Agreement. Any inspections
or tests made by Lender shall be at Borrower’s expense and
for Lender’s purposes only and shall not be construed to
create any responsibility or liability on the part of Lender to
Borrower or to any other person. The representations and warranties
contained herein are based on Borrower’s due diligence in
investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future
claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such
laws, and (2) agrees to indemnify and hold
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