Attached files
| file | filename |
|---|---|
| 10-K - FORM 10-K DATED DECEMBER 31, 2009 - Ocean Thermal Energy Corp | k123109.htm |
| EX-3.03 - Ocean Thermal Energy Corp | ex303k123109.htm |
| EX-31.01 - Ocean Thermal Energy Corp | ex3101k123109.htm |
| EX-32.01 - Ocean Thermal Energy Corp | ex3201k123109.htm |
LOAN
AGREEMENT
THIS AGREEMENT is dated
December 23, 2009, by and between SOUTHEAST IDAHO COUNCIL OF
GOVERNMENTS, INC. of P.O. Box 6079, Pocatello, ID 83205-6079,
(hereinafter the "Lender"), and TETRIDYN SOLUTIONS, INC., an
Idaho corporation of 1651 Alvin Ricken Dr., Pocatello, ID 83201 (hereinafter the
"Borrower") and DAVID W.
HEMPSTEAD and ANTOINETTE
HEMPSTEAD, a.k.a. Antoinette Knapp, husband and wife, of 1651 Alvin
Ricken Dr., Pocatello, ID 83201(hereinafter the "Guarantors").
WHEREAS, the Borrower has applied to
the Lender for loans for the purpose of obtaining additional working capital;
and
WHEREAS, the Lender is willing to make
such loans to the Borrower on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
ARTICLE I THE
LOANS
SECTION 1.01: THE LOANS, NOTES, AND RATES
Subject to the terms and conditions of
this Agreement, the Lender hereby agrees to lend the Borrower, and the Borrower
hereby agrees to borrow from the Lender and repay to the Lender, the total
principal amount of $150,000 consisting of three separate loans, and all
interest and other charges herein permitted (hereinafter called the
"Loans").
$100,000 of the loan funds shall come
from Lender's Economic Development Agency Loan Program ("EDA Loan
Program"). $25,000 of the loan funds shall come from Lender's Micro I
Loan Program. $25,000 of the loan funds shall come from the Lender's
Micro H Loan Program.
The obligations of the Borrower and
Guarantors to repay the Loans shall be evidenced by three separate promissory
notes (hereafter the "Notes") of the Borrower in a form satisfactory to the
Lender dated the date on which the Loans are made (hereafter known as the
"Closing Date") payable to the order of the Lender for the amount of each
separate Loan with interest on the unpaid principal at the rate of 7% per annum,
and an Unconditional Guaranty Agreement signed by the Guarantors.
SECTION 1.02: THE TERM AND REPAYMENT
The term of each loan shall be 5
years. The Notes shall each be repayable in 60 equal monthly
installments of principal and interest amortized over a term of 120 months, with
a balloon payment falling due on the date the 60th monthly installment falls
due. Borrower and Guarantors affirmatively agree and understand that
the Lender does not agree to extend the maturity date beyond the date the
balloon payments fall due.
Loan
Agreement
Page
1
The first monthly installment shall be
due and payable on the 30th day following the date the Notes are executed by the
Borrower. All subsequent installment payments shall be paid on the
same day of each month thereafter until all sums due under the Notes and this
Agreement shall have been paid in full.
All payments shall be applied first to
interest and then to principal. All payments will be made promptly to
the Lender at its address specified at the beginning of this Agreement, or at
such other address as it may designate in writing.
SECTION 1.03: PURPOSE OF LOAN
The purpose of the loan is to provide
the Borrower with additional working capital.
ARTICLE II REPRESENTATIONS
AND WARRANTIES
The Borrower represents and covenants
the following:
SECTION 2.01: DULY ORGANIZED
The Borrower is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Idaho and has the power to enter into this Agreement and to borrow the loans
provided hereunder.
SECTION 2.02: DULY AUTHORIZED
The making and performance by the
Borrower of this Agreement, and the execution and delivery of the Notes and any
Security Agreements have been duly authorized by all necessary corporate actions
and will not violate any law, rule, regulation, order, writ, judgment, decree,
determination, or award presently in effect having applicability to the Borrower
or any provision of the Borrower's Certificate of Incorporation or Bylaws, or
result in a breach of, or constitute a default under any Indenture or bank loan
or credit agreement or any other agreement or instrument to which the Borrower
is a party or by which it or its property may be bound or affected.
SECTION 2.03: LEGALLY BINDING INSTRUMENTS
When this Agreement is executed by the
Borrower, Guarantors, and the Lender, and when the Notes are executed and
delivered by the Borrower for value, and the Guaranty Agreements are executed
and delivered by the Guarantors for value, each such instrument shall constitute
the legal, valid, and binding obligation of the Borrower and Guarantors in
accordance with their terms. Any Security Agreements and Financing
Statements shall constitute legal, valid, and binding liens or security
interests in the Collateral therein described.
SECTION 2.04: NO LEGAL SUITS
There are no legal actions, suits, or
proceedings pending or, to the knowledge of the Borrower, threatened against the
Borrower before any court or administrative agency, which, if determined
adversely to the Borrower, would have a material adverse effect on the financial
condition or business of the Borrower.
Loan
Agreement
Page 2
SECTION 2.05: NO LEGAL AUTHORIZATION NEEDED
No authorization, consent or approval,
or any formal exemption of any governmental body, regulatory authorities
(Federal, State or Local) or mortgagee, creditor, or third party is or was
necessary to the valid execution and delivery by the Borrower of this Agreement,
the Notes, or any Security Agreement, Financing Statement, Deed of Trust, or
Mortgage.
SECTION 2.06: NOT IN DEFAULT
The Borrower is not in default of any
obligation, covenant, or condition contained in any bond, debenture, note or
other evidence of indebtedness or any mortgage, deed of trust or Collateral
instrument securing the same.
SECTION 2.07: TAXES ARE PAID
The Borrower has filed all tax returns
which are required and has paid all taxes which have or may become due pursuant
to said returns or pursuant to any assessments levied against the Borrower or
its personal or real property by any taxing agency, federal, state or
local. No tax liability has been assessed by the Internal Revenue
Service or other taxing agency, federal, state or local for taxes materially in
excess of those already provided for and the Borrower knows of no basis for any
such deficiency assessment. Borrower has paid in full all personal
and real property taxes by any taxing agency, federal, state or local against
the property which Borrower owns or is obligated to pay.
SECTION 2.08: NO ADVERSE CHANGE
The Borrower certifies that there has
been no adverse change since the date of loan application in the financial
conditions, organizations, operation, business prospects, fixed properties, or
personnel of the Borrower.
ARTICLE III CONDITIONS' OF
LENDING
The obligation of the Lender to make
the Loan shall be subject to the fulfillment at the time of closing of each of
the following conditions:
SECTION 3.01: EXECUTION OF OFFER OF CREDIT
The Borrower shall have executed and
delivered to the Lender the Offer of Credit.
SECTION 3.02: EXECUTION AND DELIVERY OF NOTES AND LOAN AGREEMENT
The Borrower shall have executed and
delivered to the Lender this Loan Agreement and the Notes in a form satisfactory
to the Lender.
Loan
Agreement
Page
3
SECTION 3.03: EXECUTION AND DELIVERY OF SECURITY AGREEMENT
The Borrower and Guarantors shall have
executed and delivered, to the Lender, their Security Agreements and Financing
Statements in a form satisfactory to the Lender giving the Lender security in
all of the Borrower's equipment and inventory and the Guarantors' personal
property, household furnishings and jewelry described in Exhibit A attached
hereto (the "Collateral"). Borrower and Guarantors do hereby
authorize Lender to prepare and file such financing statements wherever
necessary to perfect the security interests granted to Lender. Said
Security Agreements and Financing Statements are intended by the parties to
secure payment of the principal of the Notes, the interest thereon, and any
other sums payable by the Borrower and Guarantors under this or any other
agreement they have with Lender.
The Borrower agrees that Lender is
granted a security interest in any equipment that is acquired or received by
Borrower during the term of this Loan. Borrower shall notify Lender
of such acquisition or receipt within fourteen (14) days
thereof. Such security interest shall attach through the security
agreement executed in conjunction with and through this agreement and shall be
perfected through the financing statement executed in conjunction with this
agreement.
SECTION 3.04: EXECUTION AND CERTIFICATION OF RESOLUTION OF BOARD OF DIRECTORS
The Borrower shall have executed and
delivered to the Lender a duly certified copy of a Resolution of the Board of
Directors authorizing the execution and delivery by the Borrower of this
Agreement, the Notes, and Security Agreement.
SECTION 3.05: ORGANIZATIONAL DOCUMENTATION
The Borrower shall have delivered to
the Lender copies of Borrower's Certificate of Incorporation, Bylaws and a
Certificate of Good Standing from the Idaho Secretary of State.
SECTION 3.06: GUARANTEES
The Lender shall have received duly
executed personal Guaranty Agreements of the Guarantors, David W. Hempstead and
Antoinette Hempstead, husband and wife.
ARTICLE IV AFFIRMATIVE
COVENANTS OF THE BORROWER
The Borrower agrees to comply with the
following covenants from the date hereof until the Lender has been fully repaid
with interest, unless the Lender shall otherwise consent in
writing.
SECTION 4.01: PAYMENT OF THE LOANS
The Borrower agrees to pay punctually
the principal and interest on the Notes according to their terms and conditions
and to pay punctually any other amounts that may become due and payable to the
Lender under or pursuant to the terms of this Agreement or the
Notes.
Loan
Agreement
Page
4
SECTION 4.02: PAYMENT OF OTHER INDEBTEDNESS
The Borrower agrees to pay punctually
the principal and interest due on any other indebtedness now or hereafter at any
time owing by the Borrower to the Lender or any other lender.
SECTION 4.03: PAYMENT OF LOAN ORGANIZATION FEES
In consideration of the Lender's
expenses associated with processing and servicing these loans, the Borrower
agrees to pay to the Lender a processing fee of 2.25% of the principal amount of
the loan amount ($3,375) at Loan Closing.
SECTION 4.04: MAINTAIN AND INSURE PROPERTY
The Borrower and Guarantors agree at
all times to maintain the property provided as Security for this Loan in a
condition equal to the condition of said property at the time this Agreement is
executed, normal wear and tear excepted, and in any event in such condition and
repair that the Lender's security will be adequately protected. The
Borrower also agrees to maintain, during the term of the Loan, adequate hazard
insurance policies covering fire and extended coverage and such other hazards as
may be deemed appropriate in amounts at least equal to the unpaid balance of the
Notes, and issued by companies satisfactory to the Lender with acceptable loss
payee clauses in favor of the Lender. The policy of insurance shall
include a proof of insurance provision requiring not less than 30 days written
notice to Lender prior to cancellation.
The Borrower further agrees to maintain
workers' compensation insurance in amounts required by law. Borrower
shall maintain public liability for bodily injury and property damage insurance
with limits of not less than $100,000 for injury to one person and $100,000 for
injury to two or more persons in one occurrence, and $100,000 for damage to
property. Borrower shall deliver to Lender certificates of insurance
showing insurance coverages from companies authorized to issue insurance
policies in the State of Idaho.
SECTION 4.06: PAY ALL TAXES
The Borrower agrees to duly pay and
discharge all personal property taxes, assessments, and governmental charges
upon it or against the property securing these loans prior to the date on which
the penalties attached thereto, except that the Borrower shall not be required
to pay any such tax, assessment, or governmental charge which is being contested
by it in good faith and by appropriate proceedings. If so requested
by Lender, Borrower will provide a bond guaranteeing payment of such taxes or
assessments in any case in which Borrower contests any tax and refuses to pay
under the section.
SECTION 4.07: MAINTAIN EXISTENCE
The Borrower agrees to maintain its
corporate existence, rights, privilege, and franchises within the State of Idaho
and qualify and remain qualified as a foreign corporation in each jurisdiction
in which its present or future operations or its ownership of property requires
such qualification.
Loan
Agreement
Page
5
SECTION 4.08: PROVIDE FINANCIAL AND JOB INFORMATION
The Borrower agrees to maintain
adequate records and books of account, in which complete entries will be made
reflecting all of its business and financial transactions, such entries to be
made in accordance with generally accepted principles of good accounting
practice consistently applied in the case of financial
transactions.
Borrower agrees to deliver to the
Lender its annual financial statements certified by an authorized agent of the
Borrower to be true and accurate copies within sixty (60) days of the close of
the Borrower's Fiscal Year. The Financial Statements shall include a
year end balance sheet, year end income and expense ledger, current inventory
list, and current accounts receivable ledger. The Lender retains the
right to request audited statements from the Borrower, to be obtained at the
Borrower's expense.
Guarantors agree to provide Lender with
copies of their federal and state income tax returns within 30 days of the date
they are prepared and submitted to the Internal Revenue Service, the Idaho Tax
Commission or other state taxing agency.
The Borrower further agrees to provide
job hiring or retention data to the Lender every year of the
Loan. This job data will include the number of employees, the number
of minorities and female employees, and the average annual wages of its
employees.
SECTION 4.09: CONSENT TO THE DISCLOSURE OF LOAN INFORMATION
The Borrower does hereby consent and
authorize Lender to publicly disclose the following information about the
loan.
1. The
principal amount of the loans and the terms of repayment.
2. The
purpose of the loans and number of jobs created by the loan.
3. The
source of the funds comprising the principal amount of the loans.
This
consent is unqualified and extends directly to Lender, its officers, directors,
attorneys and independent contractors who may, in their sole discretion, wish to
use the information by making public disclosure thereof
SECTION 4.10: RIGHT TO INSPECTION
The Borrower and Guarantors agree to
grant the Lender, until the Notes have been fully repaid with interest, the
right at all reasonable hours to inspect the personal property used to secure
the Loan; and the Borrowers and Guarantors further agrees to provide the Lender
free access to the Borrower's business premises and Guarantors' residence for
the purpose of such inspection to determine the condition of the personal
property securing the repayment of the Loans.
Loan
Agreement
Page
6
SECTION 4.11: NULL AND VOID COVENANTS
The Borrower agrees that in the event
that any provision of this Loan Agreement or any other instrument executed at
closing or the application thereof to any person or circumstances shall be
declared null and void, invalid, or held for any reason to be unenforceable by a
Court of competent jurisdiction, the remainder of such Agreement shall
nevertheless remain in full force and effect, and to this end, the provisions of
all covenants, conditions, and agreements described herein are deemed
separate.
SECTION 4.12: EXPENSES AND CLOSING COSTS
The Borrower agrees to pay all fees,
expenses, and charges in respect to the Loans, including, but not limited to the
fees and out-of-pocket expenses of legal counsel employed by the Lender,
recording and filing fees, fees and expenses payable in connection with the
enforcement of this Loan Agreement and Notes.
SECTION 4.13: NOTICE OF DEFAULT
The Borrower agrees to give written
notice to the Lender of any event, within ten days of the event, which
constitutes an Event of Default under this Agreement, or that would, with notice
or lapse of time or both, constitute an Event of Default under the Notes or
Security Agreements.
In the event notice of default of any
nature is sent by Lender, Borrower and Guarantors agree to pay Lender the sum of
$180.00 in addition to all other sums or demands in said notice, before any
default is cured and released. Any payments or other performances of
Borrower or Guarantors coming due during the time that a notice of default is in
effect shall be automatically included in said notice of default and the
Borrower and Guarantors must so perform in addition to any performance called
for in the notice.
SECTION 4.14: EXPENSES OF COLLECTION OR ENFORCEMENT
The Borrower and Guarantors agree that
if at any time the Borrower or Guarantors default on any provision of this Loan
Agreement, they will pay to the Lender, in addition to any other amounts that
may be due from the Borrower and Guarantors, an amount equal to the costs and
expenses of collection of the Loans or enforcement of the Lender's rights under
the Notes and this Agreement, including a reasonable Attorney's fees whether or
not legal proceedings are instituted by the Lender.
ARTICLE V COVENANTS OF THE
BORROWER
The Borrower covenants and agrees that,
from the date hereof until payment in full of the Notes, unless the Lender shall
otherwise consent in writing, it will not enter into any agreement or other
commitment the performance of which would constitute a breach of any of the
covenants contained in this Loan Agreement including, but not limited to, the
following covenants. Any breach of these covenants would constitute
an Event of Default, and the rights of default by the Lender may be
executed.
Loan
Agreement
Page
7
SECTION 5.01: ENCUMBER THE COLLATERAL
The Borrower will neither create nor
suffer to exist any mortgages, pledge, lien, charge or encumbrance, including
liens arising from judgments on the Collateral securing the Loans.
SECTION 5.02: SELL THE COLLATERAL
The Borrower and Guarantors will not
sell, convey, or suffer to be conveyed, lease, assign, transfer, or otherwise
dispose of the Collateral securing the Loans (except inventory sold in the
ordinary course of business) unless consent, in writing, is given by the
Lender.
SECTION 5.03: CHANGE OF OWNERSHIP
The principals of the Borrower will not
permit, without permission of the Lender, any material change in the ownership
structure, control, or operation of the Borrower including, but not limited to:
(i) merger into or consolidation with any other person, firm or corporation;
(ii) significant issuance of any shares of its capital stock having ordinary
voting power for the election of members of the Board of Directors or other
governing body of the Borrower; (iii) changing the nature of its business as
carried on at the date hereof; (iv) substantial distribution, liquidation, or
other disposal of the Borrower's assets to the stockholders or any other
party.
ARTICLE VI EVENTS OF
DEFAULT
The entire unpaid principal of the
Notes, and the interest then accrued thereon, and all other sums due under this
Agreement or any other agreement referred to herein shall become and be
immediately due and payable upon the written demand of the Lender, without any
other notice or demand of any kind or any presentment or protest, if any one of
the following events (hereafter an "Event of Default") shall occur and be
continuing at the time of such demand, whether voluntarily or unvoluntarily, or
without limitation, occurring or brought about by operation of law or pursuant
to or in compliance with any judgment, decree or order of any court or any
order, rules, or regulation of any administrative or governmental body,
provided, however, that such sum shall not be then payable if Borrower's
payments have been waived, or the time for making the Borrower's payments has
been extended by the Lender. A default under any one of the three
Notes shall constitute an event of default for all three Notes.
SECTION 6.01: NONPAYMENT OF LOAN
If the Borrower shall fail to make
payment when due of any installment of principal on the Notes, or interest
accrued thereon, and if the default shall remain unremedied for ten
days.
SECTION 6.02: NONPAYMENT OF OTHER INDEBTEDNESS
If default shall be made in the payment
when due of any installment of principal or of interest on any of the Borrower's
other indebtedness, and if such default shall remain unremedied for ten
days.
Loan
Agreement
Page
8
SECTION 6.03: INCORRECT REPRESENTATION OR WARRANTY
Any representation or warranty
contained in, or made in connection with the execution and delivery of this Loan
Agreement, or in any certificate furnished pursuant hereto, shall prove to have
been false when made in any material respect.
SECTION 6.04: DEFAULT IN COVENANTS
The Borrower shall default in the
performance of any other term, covenant, or agreement contained in this Loan
Agreement, Notes, or Security Agreements and such default shall continue
unremedied for ten days after either: (i) it becomes known to an executive
officer of the Borrower; or (ii) written notice thereof shall have been given to
the Borrower by the Lender.
SECTION 6.05: VOLUNTARY INSOLVENCY
If the Borrower shall become insolvent
or shall cease to pay its debts as they mature or shall voluntarily file a
petition seeking reorganization of, or the appointment of a receiver, trustee,
or liquidation of a substantial portion of its assets, or to effect a plan or
other arrangement with creditors, or shall be adjudicated bankrupt, or shall
make a voluntary assignment for the benefit of creditors.
SECTION 6.06: INVOLUNTARY INSOLVENCY
If an insolvency petition shall be
filed against the Borrower or Guarantors under any bankruptcy, insolvency, or
similar law or seeking the reorganization of Borrower or the appointment of any
receiver, trustee, or liquidator for the Borrower or any Guarantor, or if a
substantial part of the property of the Borrower or Guarantors is levied upon by
a writ or warrant of attachment or similar process and such writ shall not be
released or bonded, within ten days after filing of levy.
SECTION 6.07: JUDGMENTS
If any final judgment for the payment
of money that is not fully covered by liability insurance shall be rendered
against the Borrower or Guarantors and within ten days shall not be discharged,
or an appeal therefrom taken and execution thereof effectively stayed pending
such appeal, and if such judgment be affirmed on such appeal, the same shall not
be discharged within ten days.
SECTION 6.08: CESSATION OF BUSINESS
If the Borrower shall cease or
substantially reduce its business operations within Lender's service area, which
includes Bannock and Bingham County, Idaho.
Loan
Agreement
Page
9
SECTION 6.09: RIGHTS UPON DEFAULT
Upon default by Borrower, Lender has
all cumulative remedies available to it under State law in enforcing this
Agreement and Lender's rights to the Collateral mentioned herein including, but
not limited to, the following:
(a) Accelerate
and declare the full balance immediately due on all of the Notes and commence
suit for collection thereof;
(b) Take
possession of the Collateral without notice, except as required by law, provided
that said self-help shall be done without breach of peace;
(c) Request
and demand that Borrower and Guarantors assemble the Collateral at an acceptable
location for delivery to Lender;
(d) Sell
or dispose of Collateral by sale and pursuant to the law;
(e) Specifically
enforce the terms of the Notes and Security Agreements;
(f) Foreclose
on any Collateral by strict foreclosure in equity;
(g) Pursue
any and all other remedies available under law to enforce the terms of this
Agreement and Lender's rights to Collateral identified herein and the Security
Agreements.
(h) In
the event the Borrower or Guarantors abandon the Collateral, Lender may take
immediate possession of the same for the purposes of preserving or otherwise
protecting the Collateral from loss, damage or waste.
(i) Lender
shall be entitled to the appointment of a receiver as a matter of right, and any
receiver appointed may serve without bond. Employment by Lender shall
not disqualify a person from serving as a receiver. Upon taking
possession of the Borrower or Guarantors' property, the receiver
may:
(1) Use,
operate, manage, control and conduct the business of Borrower and make any
necessary expenditures for all maintenance and operation of the business as in
his/her judgment are proper; and
(2) Collect
all rent, revenues, income, issues and profits from said business and apply such
sums to the necessary expenses of maintenance, use, management and operation of
the business.
Loan
Agreement
Page
10
(j) Borrower
and Guarantors expressly waive any legal or equitable right to marshal
assets. Lender may resort to any Collateral for payment of the loan
in such order or manner as Lender may elect.
(k) The
remedies provided herein are not exclusive and are in addition to any other
remedy available in law or equity.
ARTICLE
VII MISCELLANEOUS
SECTION 7.01: WAIVER OF NOTICE
No failure or delay on the part of the
Lender in exercising any right, power, or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. No modification or
waiver of any provision of this Loan Agreement or of the Notes, nor any consent
to any departure by the Borrower therefor, shall in any event be effective
unless the same shall be in writing, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No notice to or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
SECTION 7.02: AMENDMENTS - WRITING REQUIRED
The Lender hereby expressly reserves
all rights to amend any provisions of this Agreement, to consent to or waive any
departure from the provisions of this Loan Agreement, to amend or consent to, or
waive departure from the provisions of the Notes, and to release or otherwise
deal with any Collateral for payment of the Notes provided, however, that all
such amendments be in writing and executed by the Lender, Borrower and
Guarantors.
SECTION 7.03: NOTICES
All notices, consents, requests,
demands, and other communications hereunder shall be in writing and shall be
deemed to have been duly given to a party hereto if mailed by certified mail,
prepaid, to the Lender, Borrower and Guarantors at the addresses set forth at
the beginning of this Loan Agreement, or at such other addresses as any party
may have designated in writing to any other party hereto. This
section does not limit other means of delivering written notice if said notices
are actually received.
SECTION 7.04: PAYMENTS
The Borrower will make payments to the
Lender in accordance with the terms and conditions of this Agreement at its
place of business or at its address set forth at the beginning of this Loan
Agreement or such other place as Lender may later designate in
writing.
Loan
Agreement
Page
11
SECTION 7.05: SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All agreements, representations, and
warranties made by the Borrowers and Guarantors herein or any other document or
certificate delivered to the Lender in connection with the transactions
contemplated by this Loan Agreement shall survive the delivery of this
Agreement, the Notes and the Security Agreements hereunder, and shall continue
in full force and effect so long as the Loans are unpaid.
SECTION 7.06: SUCCESSORS AND ASSIGNS
This Loan Agreement shall be binding
upon the Borrower, its Successors, and Assigns, and the Guarantors, except that
the Borrower may not assign or transfer its rights without prior written consent
of the Lender. This Agreement shall inure to the benefit of the
Lender and except as otherwise expressly provided in particular provisions
hereof, all subsequent holders of the Notes. Borrower acknowledges
that Lender contemplates and may assign the Notes and this Agreement and
consents to such assignments.
SECTION 7.07: COUNTERPARTS
This Loan Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
SECTION 7.08: GOVERNING LAW
This Loan Agreement, the Notes and
Security Agreements, and Financing Statements shall be deemed contracts made
under the laws of the State of Idaho and for all purposes shall be construed in
accordance with the laws of that State.
SECTION 7.09: WAIVER
Failure by Lender at any time to
require performance by Borrower or Guarantors of any of the provisions of this
Agreement shall in no way affect Lender's rights hereunder to enforce the same,
nor shall any waiver by Lender of any breach hereof be held to be a waiver of
any succeeding breaches or a waiver of this non-waiver clause.
ARTICLE VIII
PREPAYMENT
SECTION 8.01: PREPAYMENT
The Borrower may prepay without penalty
all or any portion of the unpaid principal balance of this Loan
Agreement. Any prepayments made shall not excuse the Borrower or
Guarantors from making the regular installment payments due under this Agreement
and the Notes until the remaining balances have been paid in
full. The prepayment will be applied pro rata against the principal
balance of the loans plus any accrued interest or other charges which the
Borrower may at the time of the prepayment owe Lender.
Loan
Agreement
Page
12
SECTION 8.02: PREPAYMENT INCENTIVE
If the Loans are paid in full within 3
years of the date of this Agreement, Lender agrees to reduce the interest rate
from 7% per annum to 6.5% per annum, and to the extent necessary adjust the
payoff amount to reflect the reduction in interest rate from the date hereof up
through the date payment in full is made to all three loans.
|
BORROWER:
|
LENDER:
|
|
TETRIDYN
SOLUTIONS, INC.
|
SOUTHEAST
IDAHO COUNCIL OF
|
|
GOVERNMENTS,
INC.
|
|
|
By:
/s/ D. W. Hempstead
|
By:
/s/ Kathleen Lewis
|
|
David
W. Hempstead
|
Kathleen
Lewis, Executive Director
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By:
/s/ A. R. Knapp
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Antoinette
Hempstead a.k.a.
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Antoinette
Knapp
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STATE
OF IDAHO
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ss
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County
of Bannock
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On this 23rd day of December, 2009,
before me, the undersigned Notary Public in and for said County and State,
personally appeared David W. Hempstead and Antoinette Knapp, known or identified
to me to be the President and Secretary of the corporation that executed the
foregoing instrument, and being by me first duly sworn, declared that the
statements therein are true, and acknowledged to me that they executed the same
on behalf of said corporation.
IN WITNESS, I have hereunto set my hand
and affixed my official seal, the day and year in this certificate first above
written.
/s/
Michael G. Ditto
NOTARY
PUBLIC for Idaho
Residing
at: Pocatello, ID
Commission
Expires: 11-6-2015
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Notary
Seal of Michael G. Ditto
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Notary
Public
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State
of Idaho
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Loan
Agreement
Page
13
PROMISSORY NOTE-MICRO
I
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Pocatello,
Idaho
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Amount:
$25,000.00
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FOR VALUE RECEIVED, TETRIDYN SOLUTIONS, INC., an
Idaho corporation of 1651 Alvin Ricken Dr., Pocatello, ID 83201 ("Maker"),
promises to pay to the order of SOUTHEAST IDAHO COUNCIL OF GOVERNMENTS, INC. of
P.O. Box 6079, Pocatello, ID 83205-6079 ("Payee") the principal sum of
$25,000.00, with interest accruing thereon at the rate of 7% per annum,
calculated on a 365 day year, beginning on the date this Note is executed by the
Maker.
The amount of the monthly payments of
principal and interest shall be amortized over a term of 120 months, however a
balloon payment of all unpaid principal and accrued interest shall fall due on
the date the 60th monthly installment is scheduled to be paid.
This Note shall be paid as
follows:
Sixty
(60) monthly installments of principal and interest in the amount of $290.27,
each, with the first installment falling due and payable on the 30th day
following the date this Note is executed by the Maker. The remaining
monthly installment payments shall be due and payable on the same day in each
month thereafter until all sums due hereunder shall be paid in full by a balloon
payment falling due on the date the 60th monthly payment is scheduled to be
paid.
The installments are payable in lawful
money of the United States of America. Payee may accelerate the
balance of all sums due hereunder upon any default by the Maker in the terms
hereof, or the terms of any Security Agreement securing this Note.
This Promissory Note shall be governed
by and construed in accordance with the laws of the State of Idaho.
In the event this Note is placed with
an attorney for collection or enforcement of any of its terms or provisions,
whether or not suit is filed, the undersigned promises to pay, in addition to
costs provided by statute or rule, a reasonable attorney's fee.
Presentment and demand for payment,
protest and notice of protest are hereby waived.
This Note may be prepaid, at any time,
without penalty, as provided in the Loan Agreement executed by the Maker
contemporaneously herewith.
Payment of this Note is secured by two
Security Agreements of even date herewith.
DATED this 23 day of December,
2009.
TETRIDYN
SOLUTIONS, INC.
By: /s/
D.W. Hempstead
David W.
Hempstead, President
By: /s/
A.R. Knapp
Antoinette
Knapp, Secretary
PROMISSORY NOTE-MICRO
II
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Pocatello,
Idaho
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Amount:
$25,000.00
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FOR VALUE RECEIVED, TETRIDYN SOLUTIONS, INC., an
Idaho corporation of 1651 Alvin Ricken Dr., Pocatello, ID 83201 ("Maker"),
promises to pay to the order of SOUTHEAST IDAHO COUNCIL OF GOVERNMENTS, INC. of
P.O. Box 6079, Pocatello, ID 83205-6079 ("Payee") the principal sum of
$25,000.00, with interest accruing thereon at the rate of 7% per annum,
calculated on a 365 day year, beginning on the date this Note is executed by the
Maker.
The amount of the monthly payments of
principal and interest shall be amortized over a term of 120 months, however a
balloon payment of all unpaid principal and accrued interest shall fall due on
the date the 60th monthly installment is scheduled to be paid.
This Note shall be paid as
follows:
Sixty
(60) monthly installments of principal and interest in the amount of $290.27,
each, with the first installment falling due and payable on the 30th day
following the date this Note is executed by the Maker. The remaining
monthly installment payments shall be due and payable on the same day in each
month thereafter until all sums due hereunder shall be paid in full by a balloon
payment falling due on the date the 60th monthly payment is scheduled to be
paid.
The installments are payable in lawful
money of the United States of America. Payee may accelerate the
balance of all sums due hereunder upon any default by the Maker in the terms
hereof, or the terms of any Security Agreement securing this Note.
This Promissory Note shall be governed
by and construed in accordance with the laws of the State of Idaho.
In the event this Note is placed with
an attorney for collection or enforcement of any of its terms or provisions,
whether or not suit is filed, the undersigned promises to pay, in addition to
costs provided by statute or rule, a reasonable attorney's fee.
Presentment and demand for payment,
protest and notice of protest are hereby waived.
This Note may be prepaid, at any time,
without penalty, as provided in the Loan Agreement executed by the Maker
contemporaneously herewith.
Payment of this Note is secured by two
Security Agreements of even date herewith.
DATED this 23 day of December,
2009.
TETRIDYN
SOLUTIONS, INC.
By: /s/
D.W. Hempstead
David W.
Hempstead, President
By: /s/
A.R. Knapp
Antoinette
Knapp, Secretary
PROMISSORY
NOTE-EDA
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Pocatello,
Idaho
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Amount:
$100,000.00
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FOR VALUE RECEIVED, TETRIDYN SOLUTIONS, INC., an
Idaho corporation of 1651 Alvin Ricken Dr., Pocatello, ID 83201 ("Maker"),
promises to pay to the order of SOUTHEAST IDAHO COUNCIL OF GOVERNMENTS, INC. of
P.O. Box 6079, Pocatello, ID 83205-6079 ("Payee") the principal sum of
$100,000.00, with interest accruing thereon at the rate of 7% per annum,
calculated on a 365 day year, beginning on the date this Note is executed by the
Maker.
The amount of the monthly payments of
principal and interest shall be amortized over a term of 120 months, however a
balloon payment of all unpaid principal and accrued interest shall fall due on
the date the 60th monthly installment is scheduled to be paid.
This Note shall be paid as
follows:
Sixty
(60) monthly installments of principal and interest in the amount of $1,161.08,
each, with the first installment falling due and payable on the 30th day
following the date this Note is executed by the Maker. The remaining
monthly installment payments shall be due and payable on the same day in each
month thereafter until all sums due hereunder shall be paid in full by a balloon
payment falling due on the date the 60th monthly payment is scheduled to be
paid.
The installments are payable in lawful
money of the United States of America. Payee may accelerate the
balance of all sums due hereunder upon any default by the Maker in the terms
hereof, or the terms of any Security Agreement securing this Note.
This Promissory Note shall be governed
by and construed in accordance with the laws of the State of Idaho.
In the event this Note is placed with
an attorney for collection or enforcement of any of its terms or provisions,
whether or not suit is filed, the undersigned promises to pay, in addition to
costs provided by statute or rule a reasonable attorney's fee.
Presentment and demand for payment, protest and notice of protest
are hereby waived.
This Note may be prepaid, at any time,
without penalty, as provided in the Loan Agreement executed by the Maker
contemporaneously herewith.
Payment of this Note is secured by two
Security Agreements of even date herewith.
DATED this 23 day of December,
2009.
TETRIDYN
SOLUTIONS, INC.
By: /s/
D.W. Hempstead
David W.
Hempstead, President
By: /s/
A.R. Knapp
Antoinette
Knapp, Secretary