UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): July 18, 2016

 

SPORTS FIELD HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

 

Nevada   000-54883   46-0939465
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

 

4320 Winfield Road, Suite 200

Warrenville, IL 60555

(Address of Principal Executive Offices)

 

(978) 914-7570

(Registrant’s telephone number, including area code)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐   Pre-commencement communications p ursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On July 18, 2016, Sports Field Holdings, Inc. and its wholly-owned subsidiary FirstForm, Inc. (collectively, the “Company”), closed a Business Loan Agreement (the “Loan Agreement”) with Genlink Capital, LLC (“Genlink”), pursuant to which Genlink made available to the Company a revolving line of credit in a principal amount not to exceed One Million Dollars ($1,000,000) (the “Revolving Loan”). Amounts under the Revolving Loan may be advanced to the Company from time to time in accordance with the provisions of the Loan Agreement.

 

On July 18, 2016 and pursuant to the Loan Agreement, the Company issued a Promissory Note to Genlink (“the Note”), up to an aggregate principal amount of One Million Dollars ($1,000,000). All unpaid principal and interest outstanding under the Note is due on or before December 20, 2017 (the “Maturity Date”). The Note bears interest at a rate of 15% per annum, and the Company shall make monthly interest payments. The Company may pay, without penalty, all or a portion or any amount owed under the Note earlier than the date by which it is due. The Note includes customary provisions regarding events of default and other terms.

 

Additionally, on July 18, 2016 and pursuant to the Loan Agreement, the Company and Genlink entered into a security agreement (the “Security Agreement”), pursuant to which the Company granted Genlink a senior security interest in substantially all of the Company’s assets as security for repayment of the Revolving Loan.

 

The foregoing descriptions of the Loan Agreement, the Note and the Security Agreement are not intended to be complete and are qualified in their entirety by reference to the full text of those documents, copies of which are attached hereto as Exhibit 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.

 

Item 9.01  Financial Statements, Pro Forma Financial Information and Exhibits.

 

(d)          Exhibits.

Exhibit No.   Description
10.1*   Business Loan Agreement
     
10.2*  

Promissory Note

     
10.3*  

Security Agreement 

 

* filed herewith

 

  2  

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  SPORTS FIELD HOLDINGS, INC.
   
Date: July 22, 2016 By: /s/ Jeromy Olson
    Jeromy Olson
    Chief Executive Officer

 

 

3

 

 

Exhibit 10.1

 

EXECUTION VERSION

 

BUSINESS LOAN AGREEMENT

 

Borrowers:

 

 

 

 

 

 

FIRSTFORM, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

 

SPORTS FIELD HOLDINGS, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

 

Lender:

 

GENLINK CAPITAL, LLC

1205 N. Ankeny Blvd., Suite 209

Ankeny, IA 50023

   

 

 

THIS BUSINESS LOAN AGREEMENT dated July 14, 2016, is made and executed between FIRSTFORM, INC., a Florida corporation, and SPORTS FIELD HOLDINGS, INC., a Nevada corporation (collectively, the “ Borrowers ”), and GENLINK CAPITAL, LLC, a Delaware limited liability company (the “ Lender ”) on the following terms and conditions.

 

Borrowers have applied to Lender for a commercial loan or loans or other financial accommodations (the “ Loan ”). Borrowers understand and agree that: (A) in granting, renewing, or extending any Loan, Lender is relying upon Borrowers’ 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 the date of this Agreement, 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, interests, costs, expenses, attorneys’ fees, and other fees and charges or until such time as the parties may agree in writing to terminate this Agreement.

 

LOAN. Subject to the terms and conditions of this Agreement, Lender shall make available to Borrowers a revolving line of credit loan in a principal amount not to exceed One Million Dollars ($1,000,000.00) (the “ Revolving Line of Credit Loan ”) which may be advanced from time to time in accordance with the terms set forth in this Agreement and the Note. Borrower, at its option, may (a) request Advances under the Revolving Line of Credit Loan up to $1,000,000.00, (b) except as otherwise provided for in the Note, prepay at any time and without penalty all or any portion of the outstanding balance under the Revolving Line of Credit Loan, and (c) until the maturity date of the Note, borrow additional amounts or reborrow any amount prepaid.

 

The Revolving Line of Credit Loan shall be paid in accordance with the terms of the Note. Without limitation, interest on the unpaid principal balance of the Revolving Line of Credit Loan shall be paid monthly in arrears. The entire unpaid principal and interest balance of the Revolving Line of Credit Loan is due and payable in full on the due date set forth in the Note.

 

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 the Related Documents.

 

Loan Documents. Borrowers shall provide and execute the following documents for the Loan: (1) this Agreement; (2) the Note; (3) the Security Agreement granting to Lender security interests in the Collateral; (4) financing statements and all other documents perfecting Lender’s Security Interests; (5) an opinion letter from Borrowers’ counsel acceptable to Lender and its counsel with respect to the organization of Borrowers and their capability to enter into this transaction, the enforceability of the loan documents described in (1) - (4) above, the collateralization, and such other matters as shall be required by Lender or its counsel; (6) evidence of insurance as required below; and (7) together with all such Related Documents as Lender may require for the Loan; all in a form and substance satisfactory to Lender and Lender's counsel.

 

First Lien. Lender shall have received evidence satisfactory to it that it will receive a first priority lien on all Collateral pledged by Borrowers.

 

Authorization. Borrowers 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, Borrowers shall have provided such other resolutions, authorizations, documents and instruments as Lender or its counsel, may require.

 

Payment of Fees and Expenses. Borrowers 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. Without limiting the generality of the forgoing, Borrowers shall have (1) paid to Lender a commitment fee in the amount of Thirty Thousand Dollars ($30,000.00) and (2) a non-refundable administrative fee of Five Thousand Dollars ($5,000.00), and (3) reimbursed Lender for all fees and expenses incurred by it in connection with the Loan, in excess of the Five Thousand Dollars ($5,000.00) administrative fee for (i) attorney’s fees and expenses incurred by Lender in the negotiation and preparation of this Agreement and the Related Documents, (ii) any appraisal or inspection fees, and (iii) filing fees incurred by Lender as evidenced by invoices and other records reflecting Lender’s payments of such amounts.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 1 of 11    

 

 

EXECUTION VERSION

 

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.

 

REQUEST TIME FOR EACH ADVANCE. Each request for an Advance shall be made at least two calendar weeks prior to the date Borrowers desire to have the Advance disbursed. Any request for an Advance more often than every 15 th calendar day will result in a transaction fee of $100.00 that will be added to the Advance.

 

REPRESENTATIONS AND WARRANTIES. Borrowers, as applicable to each, represent and warrant 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 . Each Borrower is a corporation 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 its incorporation. Each Borrower is duly authorized to transact business in all other states in which each Borrower is doing business, having obtained all necessary filings, governmental licenses and approvals for each state in which each Borrower is doing business. Specifically, each Borrower is, and at all times shall be, duly qualified as a foreign corporation in all states in which failure to so qualify would have a material adverse effect on its business or financial condition. Each 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. Borrowers maintain their principal offices at 4320 Winfield Road, Suite 200, Warrenville, IL 60555. Unless each Borrower has designated otherwise in writing, the principal office is the office at which each Borrower keeps it books and records including its records concerning the Collateral. Each Borrower will notify Lender prior to any change in the location of each Borrower’s principal office address, any change in the Borrowers’ States of incorporation, or any change in each Borrower’s name. Borrowers 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 Borrowers and Borrowers’ business activities.

 

Assumed Business Names. Borrowers have filed or recorded all documents or filings required by law relating to all assumed business names used by it. The following is a complete list of all assumed business names under which Borrowers do business: None .

 

Authorization. Borrowers’ execution, delivery and performance of this Agreement and all the Related Documents have been duly authorized by all necessary action by Borrowers and do not conflict with, result in a violation of, or constitute a default under (1) any provision of Borrowers’ articles of incorporation or bylaws, or any agreement or other instrument binding upon Borrowers or (2) any law, governmental regulation, court decree, or order applicable to Borrowers or to Borrowers’ properties.

 

Financial Information. Each of Borrowers’ financial statements supplied to Lender truly and completely disclosed Borrowers’ respective financial condition in all material respects as of the date of the statement, and there has been no material adverse change in Borrowers’ respective financial condition subsequent to the date of the most recent financial statements supplied to Lender. Borrowers have no material contingent obligations except as disclosed in such financial statements. For purposes of this “Financial Information” section only the term “material” shall mean a difference of more than $10,000/

 

Legal Effect. This Agreement constitutes, and any instrument or agreement Borrowers, or any of them, are required to give under this Agreement when delivered will constitute legal, valid, and binding obligations of Borrowers enforceable against them, as applicable, in accordance with their respective terms.

 

Properties. Except as contemplated by this Agreement or as previously disclosed in Borrowers’ respective 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, Borrowers own and have good title to all of their respective properties free and clear of all Security Interests, and have not executed any security documents or financing statements relating to such properties. All of Borrowers’ respective properties are titled in their legal name, and they have not, respectively, used or filed a financing statement under any other name for at least the last five (5) years.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 2 of 11    

 

 

EXECUTION VERSION

 

Hazardous Substances . Except as disclosed to and acknowledged by Lender in writing, Borrowers represent and warrant that: (1) During the period of their respective 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 the Collateral. (2) Borrowers have 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 Collateral by any prior owners or occupants of the Collateral, or (c) any actual or threatened litigation or claims of any kind by any person relating to such matters. (3) Neither Borrowers, nor any tenant, contractor, agent or other authorized user of the Collateral shall use, generate, manufacture, store, treat, dispose of or release any Hazardous Substance on, under, about or from 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. Borrowers authorize Lender and its agents to enter upon the Collateral to make such inspections and tests, at Borrowers’ expense, 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 Borrowers’ expense and for Lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Borrowers, or to any other person. The representations and warranties contained herein are based on Borrowers’ due diligence in investigating the Collateral for Hazardous Substances. Borrowers hereby (1) release and waive any future claims against Lender for indemnity or contribution in the event Borrowers become liable for cleanup or other costs under any such laws; and (2) agree to indemnify and hold harmless Lender against any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may directly or indirectly sustain or suffer resulting from a breach of this section of the Agreement or as a consequence of any use, generation, manufacture, storage, disposal, release or threatened release of a hazardous waste or substance on the Collateral. The provisions of this section of the Agreement, including the obligation to indemnify, shall survive the payment of the Indebtedness and the termination, expiration or satisfaction of this Agreement and shall not be affected by Lender's acquisition of any interest in the Collateral, whether by foreclosure or otherwise.

 

Litigation and Claims. No litigation, claim, investigation, administrative proceeding or similar action (including those for unpaid taxes) against Borrowers, or any of them, is pending or threatened in writing, and no other event has occurred which may materially adversely affect Borrowers’ respective financial condition or properties, other than litigation, claims, or other events, if any, that have been disclosed to and acknowledged by Lender in writing.

 

Taxes. To the best of Borrowers’ knowledge, all of Borrowers’ respective tax returns and reports that are or were required to be filed, have been filed, and all taxes, assessments and other governmental charges have been paid in full, except those presently being or to be contested by Borrowers in good faith in the ordinary course of business and for which adequate reserves have been provided.

 

Lien Priority. Unless otherwise previously disclosed to Lender in writing, Borrowers have not entered into or granted any Security Agreement, or permitted the filing or attachment of any Security Interests on or affecting any of the Collateral directly or indirectly securing repayment of the Loan and Note, that would be prior or that may be superior to Lender’s Security Interests and rights in and to such Collateral.

 

Binding Effect. This Agreement, the Note, any Security Agreement, and all Related Documents are binding upon the signors thereof, as well as upon their successors, representatives and assigns, and are legally enforceable in accordance with their respective terms.

 

AFFIRMATIVE COVENANTS. Borrowers covenant and agree with Lender that, so long as this Agreement remains in effect, Borrowers will:

 

Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in their respective financial condition, and (2) all existing and all threatened in writing litigation, claims, investigations, administrative proceedings or similar actions affecting Borrowers which could materially affect the financial condition of any of Borrowers.

 

Financial Records. Maintain their respective books and records in accordance with GAAP, applied on a consistent basis, and permit Lender to examine and audit their books and records at all reasonable times.

 

Financial Statements. Furnish Lender (a) within One Hundred Fifty (150) days after Borrowers’ fiscal year end, with a copy of the financial statements (including a balance sheet, income statement and statement of cash flows) of Borrowers’ for the preceding fiscal year, prepared by an independent certified public accountant acceptable to Lender, (b) within Forty-five (45) days after each month end, with (i) a copy of Borrowers’ internally prepared financial statements for the preceding month, including, a balance sheet, income statement, statement of cash flows, (ii) an aging analysis of all of Borrowers’ accounts receivable, accounts payable, retainers aging and (iii) a Job Progress Report as of the end of the preceding month, all in form and detail satisfactory to Lender, (c) within Forty-five (45) days of filing, but in no event later than October 31 of each year, with a copy of the Borrowers’ income tax returns as filed with the Internal Revenue Service, and (d) with such financial statements and other related information (including, without limitation, cash flow projections) at such frequencies and in such detail as Lender may reasonably request.

 

All financial reports required to be provided under this Agreement shall be prepared in accordance with GAAP, applied on a consistent basis, and certified as being true and correct.

   

 

 

 

BUSINESS LOAN AGREEMENT

Page 3 of 11    

 

 

EXECUTION VERSION

 

Additional Information. Furnish such additional information and statements, as Lender may request from time to time.

 

Insurance. Maintain fire and other risk insurance, public liability insurance, and such other insurance as Lender may require with respect to their respective properties and operations, in form, amounts, coverages and with insurance companies acceptable to Lender. Borrowers, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days prior written notice to Lender. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Borrowers or any other person. In connection with all policies covering assets in which Lender holds or is offered a Security Interest for the Loan, Borrowers will provide Lender with such lender’s loss payable or other endorsements as Lender may require.

 

Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing insurance policy showing such information as Lender may reasonably request, including without limitation the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties insured; (5) the then current property values on the basis of which insurance has been obtained, and the manner of determining those values; and (6) the expiration date of the policy. In addition, upon the request of Lender (however not more often than annually), Borrowers will have an independent appraiser satisfactory to Lender determine, as applicable, the actual cash value or replacement cost of any Collateral. The cost of such appraisal shall be paid by Borrowers.

 

Other Agreements. Comply with all terms and conditions of all other agreements, whether now or hereafter existing, between Borrowers, or any of them, and any other party and notify Lender immediately in writing of any default in connection with any other such agreements.

 

Loan Proceeds. Use all Loan proceeds solely for Borrower’s working capital, unless specifically consented to the contrary by Lender in writing. Without limiting the generality of the preceding sentence, Loan proceeds will not be used as distributions to or withdrawals by any officer, director, or shareholder of Borrowers or any other person or entity.

 

Taxes, Charges and Liens. Pay and discharge when due all of their indebtedness and obligations, including without limitation all assessments, taxes, governmental charges, levies and liens, of every kind and nature, imposed upon Borrowers or their respective properties, income or profits, prior to the date on which penalties would attach, and all lawful claims that, if unpaid, might become a lien or charge upon any of Borrowers’ respective properties, income or profits. Provided, however, Borrowers will not be required to pay and discharge any such assessment, tax, charge, levy, lien or claim so long as (1) the legality of the same shall be contested in good faith by appropriate proceedings, and (2) Borrowers shall have established on their books adequate reserves with respect to such contested assessment, tax, charge, levy, lien or claim in accordance with GAAP.

 

Performance. Perform and comply, in a timely manner, with all terms, conditions, and provisions set forth in this Agreement, in the Related Documents, and in all other instruments and agreements between Borrowers and Lender. Borrowers shall notify Lender immediately in writing of any default in connection with any agreement.

 

Operations. Maintain executive and management personnel with substantially the same qualifications and experience as the present executive and management personnel; provide written notice to Lender of any change in executive and management personnel; conduct its business affairs in a reasonable and prudent manner.

  

Compliance with Governmental Requirements. Comply with all laws, ordinances, and regulations, now or hereafter in effect, of all governmental authorities applicable to the conduct of their respective properties, businesses and operations, and to the use or occupancy of the Collateral, including without limitation, the Americans With Disabilities Act, the Employee Retirement Income Security Act of 1974, as amended (ERISA) and all occupational safety laws. Borrowers may contest in good faith any such law, ordinance, or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Borrowers have notified Lender may require Borrowers to post adequate security or a surety bond, reasonably satisfactory to Lender, to protect Lender’s interest.

 

Borrowers shall meet their minimum funding requirements under ERISA with respect to any employee benefit plan or other class of benefit plan, which the Pension Benefit Guaranty Corporation established under ERISA has elected to insure, in either case, whether now in existence or hereafter instituted by Borrowers.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 4 of 11    

 

 

EXECUTION VERSION

 

Notices of Claims and Litigation. Promptly inform Lender in writing of (1) all material adverse changes in their respective financial conditions, and (2) all existing and all written threats of litigation, as well as all claims, investigations, administrative proceedings or similar actions affecting them which could materially affect their respective financial conditions.

 

Inspection. Permit employees or agents of Lender at any reasonable time to inspect any and all Collateral for the Loan or Loans and Borrowers’ other properties and to examine or audit Borrowers’ books, accounts, and records and to make copies and memoranda of Borrowers’ books, accounts and records. If Borrowers now or at any time hereafter maintain any records (including without limitation computer generated records and computer software programs for the generation of such records) in the possession of a third party, Borrowers, upon request of Lender, shall notify such party to permit Lender free access to such records at all reasonable times and to provide Lender with copies of any records it may request, all at Borrowers’ expense.

 

Compliance Certificates. Unless waived in writing by Lender, provide Lender at least annually, with a certificate executed by Borrowers’ chief financial officer, or other officer or person acceptable to Lender, certifying that the representations and warranties set forth in this Agreement are true and correct as of the date of the certificate and further certifying that, as of the date of the certificate, no Event of Default exists under this Agreement.

 

Environmental Compliance and Reports. Borrowers shall comply in all respects with any and all Environmental Laws; not cause or permit to exist, as a result of an intentional or unintentional action or omission on Borrowers’ part or on the part of any third party, on property owned and/or occupied by Borrowers, any environmental activity where damage may result to the environment, unless such environmental activity is pursuant to and in compliance with the conditions of a permit issued by the appropriate federal, state or local governmental authorities; shall furnish to Lender promptly and in any event within thirty (30) days after receipt thereof a copy of any reports of inspection or examination, notice, summons, lien, citation, directive, letter or other communication from any governmental agency or instrumentality concerning any intentional or unintentional action or omission on Borrowers’ part in connection any environmental activity whether or not there is damage to the environment and/or other natural resources.

 

Additional Assurances. Make, execute and deliver to Lender such promissory notes, mortgages, deeds of trust, security agreements, assignments, financing statements, instruments, documents and other agreements as Lender or its attorneys may reasonably request to evidence and secure the Loan and to perfect all Security Interests.

 

LENDER’S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender’s interest in the Collateral or if Borrowers fail to comply with any provision of this Agreement or any Related Documents, including but not limited to Borrowers failure to discharge or pay when due any amounts Borrowers are required to discharge or pay under this Agreement or any Related Documents, Lender on Borrowers’ behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time period or placed on any Collateral and paying all costs for insuring, maintaining and preserving any Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Borrowers. All such expenses will become a part of the Indebtedness and, at Lender’s option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note’s maturity.

 

NEGATIVE COVENANTS. Borrowers covenant and agree with Lender that while this Agreement is in effect, Borrowers shall not, without the prior written consent of Lender:

 

Indebtedness and Liens. (1) Except for trade debt incurred in the normal course of business and Indebtedness to Lender contemplated by this Agreement create, incur or assume indebtedness for borrowed money, including capital leases, (2) sell, transfer, mortgage, assign, pledge, lease, grant a Security Interest in, or encumber any of Borrower’s assets (except as allowed as Permitted Liens), or (3) sell with recourse any of Borrower’s accounts, except to Lender.

 

Continuity of Operation . (1) Engage in any business activities substantially different than those in which Borrowers are presently engaged, (2) cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change its name, dissolve or transfer or sell Collateral out of the ordinary course of business, (3) change present executive personnel, or (4) pay any dividends on Borrowers’ stock (other than dividends payable in its stock).

 

Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets, (2) purchase, create or acquire any interest in any other enterprise or entity, or (3) incur any obligation as surety or guarantor other than in the ordinary course of business.

 

Agreements. Enter into any agreement containing any provisions which would be violated or breached by the performance of Borrower’s obligations under this Agreement or in connection herewith.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 5 of 11    

 

 

EXECUTION VERSION

 

CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to Borrowers, whether under this Agreement or under any other agreement, Lender shall have no obligation to make Loan Advances or to disburse Loan proceeds if: (1) Any of the Borrowers are in default under the terms of this Agreement or any of the Related Documents or any other agreement that any of Borrowers has with Lender; (2) Any of the Borrowers dissolves or terminates its business, becomes insolvent, files a petition in bankruptcy or similar proceedings, or is adjudged a bankrupt; (3) there occurs a material adverse change in any of Borrowers’ financial conditions, or in the value of any Collateral securing any Loan; or (4) Lender in good faith deems itself insecure, even though no Event of Default shall have occurred.

 

DEFAULT. Each of the following shall constitute an Event of Default under this Agreement.

 

Payment Default. Borrowers fail to make any payment when due under the Loan. Borrowers shall have the right to cure such default within three (3) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Other Defaults. Borrowers fail to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement 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. Borrowers shall have the right to cure such default within seven (7) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Default in Favor of Third Parties. Borrowers 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 or any Grantor’s property or Borrower’s or any Grantor’s ability to repay the Loan or perform their respective obligations under this Agreement or any of the Related Documents. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

False Statements. Any warranty, representation or statement made or furnished to Lender by Borrowers or on Borrowers’ behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes materially false or misleading at any time thereafter. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Dissolution or 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. With respect to any involuntary bankruptcy action against the Borrowers, the Borrowers shall have a period of sixty (60) days to cure or effect the rescinding of the involuntary bankruptcy petition.

 

Defective Collateralization. This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

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 Borrowers 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 Borrowers as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrowers give 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.

 

Change in Ownership/Management; Disposal of Assets . Borrowers suffer or permit majority control of Borrowers to be sold, assigned or otherwise transferred, or if Borrowers make or permit a change in its present senior level management, or if Borrowers merge or consolidate with any company or enterprise, or otherwise disposes of a substantial portion (as determined by Lender) of its assets or properties.

 

 

 

 

BUSINESS LOAN AGREEMENT 

Page 6 of 11    

 

 

EXECUTION VERSION

 

Adverse Change . A material adverse change occurs in Borrower’s financial condition, or Lender reasonably believes In good faith that the prospect of payment or performance of the Note is impaired. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Insecurity. Lender reasonably and in good faith believes itself insecure. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall have occurred, except where otherwise provided in this Agreement or the Related Documents, all commitments and obligations of Lender under this Agreement or the Related Documents or any other agreement immediately will terminate (including any obligation to make further Loan Advances or disbursements), and, at Lender’s option, all Indebtedness immediately will become due and payable, all without notice of any kind to Borrowers other than as provided for in this Agreement, except that in the case of an Event of Default of the type described in the “Insolvency” subsection above, such acceleration shall be automatic and not optional. In addition, Lender shall have all the rights and remedies provided in the Related Documents or available at law, in equity, or otherwise. Except as may be prohibited by applicable law, all of Lender’s rights and remedies shall be cumulative and may be exercised singularity or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of any of Borrowers or of any Grantor shall not affect Lender’s right to declare an Event of Default and to exercise its rights and remedies.

 

PREPAYMENT PENALTY. Except as otherwise provided for in the Note, Borrowers may prepay all or any portion of the outstanding principal balance of the Note without penalty.

 

MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement:

 

Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

 

Attorneys’ Fees; Expenses. Borrowers agree to pay upon demand all of Lender’s costs and expenses, including Lender’s reasonable attorneys’ fees and Lender’s legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and Borrowers shall pay the costs and expenses of such enforcement. Costs and expenses include Lender’s attorneys’ fees and legal expenses whether or not there is a lawsuit, including attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Borrowers also shall pay all court costs and such additional fees as may be directed by the court.

 

Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.

 

Consent to Loan Participation. Borrowers agree and consent to Lender’s sale or transfer, whether now or later, of one ore more participation interests in the Loan to one or more purchasers, whether related or unrelated to Lender, Lender may provide, without any limitation whatsoever, to any one or more purchasers, or potential purchasers, any information or knowledge Lender may have about Borrowers or about any other matter relating to the Loan, and Borrowers hereby waive any rights to privacy Borrowers may have with respect to such matters. Borrowers additionally waive any and all notices of sale of participation interests, as well as all notices of any repurchase of such participation interests. Borrowers also agree that the purchasers of any such participation interests will be considered as the absolute owners of such interests in the Loan and will have all the rights granted under the participation agreement or agreements governing the sale of such participation interests. Borrowers further waive all rights of offset or counterclaim that it may have now or later against Lender or against any purchaser of such a participation interest and unconditionally agrees that either Lender or such purchaser may enforce Borrower’s obligation under the Loan irrespective of the failure or insolvency of any holder of any interest in the Loan. Borrowers further agree that the purchaser of any such participation interests may enforce its interests irrespective of any personal claims or defenses that Borrowers may have against Lender.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 7 of 11    

 

 

EXECUTION VERSION

 

Governing Law. This Agreement will be governed by, construed and enforced in accordance with federal law and the laws of the State of Iowa. This Agreement has been accepted by Lender in the State of Iowa.

   

Choice of Venue. If there is a lawsuit, Borrowers agree upon Lender’s request to submit to the jurisdiction of the courts of POLK County, State of Iowa.

 

Joint and Several Liability. All obligations of Borrowers under this Agreement shall be joint and several, and all references to Borrowers shall mean each and every Borrower. This means that each Borrower signing below is responsible for all obligations in this Agreement. Where any one or more of the parties is a corporation, partnership, limited liability company or similar entity, it is not necessary for Lender to inquire into the powers of any of the officers, directors, partners, members, or other agents acting or purporting to act on the entity’s behalf, and any obligations made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Agreement.

 

WAIVER OF TRIAL BY JURY . IN THE EVENT ANY ACTION IS BROUGHT IN ANY FORUM BETWEEN BORROWERS, OR ANY OF THEM, AND LENDER AS A RESULT OF THIS AGREEMENT, THE LOAN, THE NOTE, OR ANY RELATED DOCUMENT, BORROWERS AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT, THE LOAN, THE NOTE, OR ANY RELATED DOCUMENT. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWERS AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO TRIAL BY JURY WOULD OTHERWISE ACCRUE OR ARISE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY THE OTHER PARTY.

 

LIMITATION OF LENDER'S LIABILITY . Notwithstanding anything contained herein to the contrary, BORROWERS agree that none of Lender or ITS agents or employees shall be liable to BORROWERS for any monetary damages (including any special, consequential or punitive damages whatsoever), whether in contract, tort (including negligence and strict liability) or any other legal or equitable principle and BORROWERS’ sole remedies shall be limited to commencing an ARBITRATION OR action for specific performance.

 

No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any rights shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrowers, or between Lender and any Grantor, shall constitute a waiver of any of Lender’s rights or of any of Borrowers’ or any Grantor’s obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.

 

Notices. Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address.

 

Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.

 

Subsidiaries and Affiliates. To the extent the context of any provisions of this Agreement makes it appropriate, including without limitation any representation, warranty or covenant, the word “Borrower” as used in this Agreement shall include all of Borrowers’ subsidiaries and affiliates. Notwithstanding the foregoing however, under no circumstances shall this Agreement be construed to require Lender to make any Loan or other financial accommodation to any of Borrowers’ subsidiaries or affiliates.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 8 of 11    

 

 

EXECUTION VERSION

 

Successors and Assigns. All covenants and agreements contained by or on behalf of Borrowers shall bind their respective successors and assigns and shall inure to the benefit of Lender and its successors and assigns. Borrowers shall not, however, have the right to assign Borrowers’ rights under this Agreement or any interest therein, without the prior written consent of Lender.

 

Survival of Representations and Warranties. Borrowers understand and agree that in making the Loan, Lender is relying on all representations, warranties, and covenants made by Borrowers in this Agreement or in any certificate or other instrument delivered by Borrowers to Lender under this Agreement or the Related Documents. Borrowers further agree that regardless of any investigation made by Lender, all such representations, warranties and covenants will survive the making of the Loan and delivery to Lender of the Related Documents, shall be continuing in nature, and shall remain in full force and effect until such time as Borrower’s Indebtedness shall be paid in full, or until this Agreement shall be terminated in the manner provided above, whichever is the last to occur.

 

Time is of the Essence. This is of the essence in the performance of this Agreement.

 

DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and terms not otherwise defined in this Agreement shall have the meanings assigned to them in accordance with generally accepted accounting principles as in effect on the date of this Agreement:

 

Advance. The word “Advance” means a disbursement of Loan funds made, or to be made, to the Borrowers or on the Borrowers’ behalf on a line of credit or multiple advance basis under the terms and conditions of this Agreement.

 

Agreement. The word “Agreement” means this Business Loan Agreement, as this Business Loan Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to the Business Loan Agreement from time to time.

 

Borrowers. The word “Borrowers” means FIRSTFORM, INC., a Florida corporation, and SPORTS FIELD HOLDINGS, INC., a Nevada corporation, and all other persons and entities signing the Note in whatever capacity.

 

Collateral. The word “Collateral” means all property and assets granted as collateral security for a Loan, whether real or personal property, whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest, mortgage, collateral mortgage, deed of trust, assignment, pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.

 

Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.

 

Event of Default. The words “Event of Default” mean any the events of default set forth in this Agreement in the default section of this Agreement.

 

GAAP. The word “GAAP” means generally accepted accounting principles.

 

Grantor. The word “Grantor” means each and all of the persons or entities granting a Security Interest in any Collateral for the Loan, including without limitation all Borrowers granting such a Security Interest.

 

Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment with improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.

 

 

 

 

BUSINESS LOAN AGREEMENT  

Page 9 of 11    

 

 

EXECUTION VERSION

 

Indebtedness. The word “Indebtedness” means the indebtedness evidenced by the Note or Related Documents, including all principal and interest together with all other indebtedness and costs and expenses for which Borrowers are responsible under this Agreement or under any of the Related Documents.

 

Lender. The word “Lender” means GENLINK CAPITAL, LLC, its successors and assigns.

 

Loan. The word “Loan” means any and all loans and financial accommodations from Lender to Borrowers whether now or hereafter existing, and however evidenced, including without limitation those loans and financial accommodations described herein or described on any exhibit or schedule attached to this Agreement from time to time, including, without limitation, the Revolving Line of Credit Loan.

 

Note. The word “Note” means the Promissory Note executed by Borrowers in the principal amount of $1,000,000.00 on the date of this Agreement, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the note or credit agreement.

 

Permitted Liens. The words “Permitted Liens” mean (1) liens and security interests securing Indebtedness owed by Borrowers to Lender; (2) liens for taxes, assessments, or similar charges either not yet due or being contested in good faith; (3) liens of materialmen, mechanic’s, warehousemen, or carriers, or other like liens arising in the ordinary course of business and securing obligations which are not yet delinquent; (4) purchase money liens or purchase money Security Interests upon or in any property acquired or held by Borrowers in the ordinary course of business to secure indebtedness outstanding on the date of this Agreement or permitted to be incurred under the paragraph of this Agreement titled “Indebtedness and Liens”; (5) liens and Security Interests which, as of the date of this Agreement, have been disclosed to and approved by Lender in writing; and (6) those liens and Security Interests which in the aggregate constitute an immaterial and insignificant monetary amount with respect to the net value of Borrowers’ respective assets.

 

Related Documents. The words “Related Documents” mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, assignment of leases and rents, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Loan, including without limitation the Security Agreement.

 

Security Agreement. The words “Security Agreement” mean and include without limitation any agreements, promises, covenants, arrangements, understandings or other agreements, whether created by law, contract, or otherwise, evidencing, governing, representing, or creating a Security Interest.

 

Security Interest. The words “Security Interest” mean, without limitation, any and all types of collateral security, present and future, whether in the form of a lien, charge, encumbrance, mortgage, deed of trust, security deed, assignment, pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever whether created by law, contract, or otherwise.

 

BORROWERS ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND BORROWERS AGREE TO ITS TERMS.

 

BORROWERS ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THIS BUSINESS LOAN AGREEMENT AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.

 

IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.

 

By signing below, the parties hereto acknowledge that it concurrently received of a copy of the documents and each document referenced herein.

 

 

 

 

BUSINESS LOAN AGREEMENT

Page 10 of 11    

 

 

EXECUTION VERSION

 

IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.

 

BORROWERS:

 

FIRSTFORM, INC.   SPORTS FIELD HOLDINGS, INC.
     
By /s/ Jeromy Olson   By

/s/ Jeromy Olson

  Jeromy Olson, its CEO     Jeromy Olson, its CEO

  

STATE OF _________________ )

                                                       ) ss

COUNTY OF _______________ )

 

This record was acknowledged before me on the _______ day of July, 2016 by Jeromy Olson as CEO of FirstForm, Inc., a Florida corporation.

 

   
  Notary Public in and for said State

 

STATE OF _________________ )

                                                       ) ss

COUNTY OF _______________ )

 

This record was acknowledged before me on the _______ day of July, 2016 by Jeromy Olson as CEO of Sports Field Holdings, Inc., a Nevada corporation.

 

   
  Notary Public in and for said State

  

LENDER:

 

GENLINK CAPITAL, LLC

 

By /s/ Jeremy Rasmussen  
  Jeremy Rasmussen, Director  

  

 

 

 

BUSINESS LOAN AGREEMENT

 

Page 11 of 11 

 

 

Exhibit 10.2

 

EXECUTION VERSION

 

PROMISSORY NOTE

 

Borrowers:

FIRSTFORM, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

 

SPORTS FIELD HOLDINGS, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

  Lender:

GENLINK CAPITAL, LLC

1205 N. Ankeny Blvd., Suite 209

Ankeny, IA 50023

   

 

 

Principal Amount: $1,000,000.00

 

Date of Note: July 14, 2016

 

PROMISE TO PAY . FIRSTFORM, INC., a Florida corporation, and SPORTS FIELD HOLDINGS, INC., a Nevada corporation (“ Borrowers ”) promise to pay on or before December 20, 2017 (the “ Due Date ”) to GENLINK CAPITAL, LLC (“ Lender ”), or order, in lawful money of the United States of America, the principal amount of ONE MILLION DOLLARS AND NO CENTS ($1,000,000.00), or as much as has been disbursed and remains outstanding on this Note at the Due Date, as is shown by the Lender’s records, together with interest on the unpaid principal of this Note until this Note is fully paid, at the rate of Fifteen Percent (15.00%) per annum.

 

PAYMENT AND REBORROWING . Borrowers shall make monthly interest payments. Borrowers’ first monthly interest payment is due on August 25, 2016, and all subsequent interest payments are due on the same day of each month after that. In addition, on the Due Date, Borrowers shall make one payment in the amount of all unpaid principal and interest.

 

Subject to the terms and conditions of the Business Loan Agreement between Borrowers and Lender of even date herewith (“ Loan Agreement ”), the undersigned may borrow, prepay and re-borrow under this Note until the Due Date within the limits of this Note and the Loan Agreement. Any advances made under this Note shall be at the sole discretion of the Lender and the Lender is not obligated to make any advance.

 

Borrowers’ final payment will be due on the Due Date, and will be for all principal and all accrued interest not yet paid. Unless otherwise agreed or required by applicable law, payments will be applied first to accrued unpaid interest, then to principal, and any remaining amount to any unpaid collection costs and late charges. Interest on this Note is computed on the basis of actual days elapsed in a 360 day year. Borrowers will pay Lender at Lender’s address shown above or at such other place as Lender may designate in writing.

 

INTEREST CALCULATION METHOD . Interest on this Note is computed on a 365/360 basis; that is, by applying the ratio of the 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. All interest payable under this Note is computed using this method.

 

PREPAYMENT . Borrowers agree 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. Except for the foregoing, Borrowers may pay without penalty all or a portion of the amount owed earlier than it is due provided, however, that if this Note is paid prior to the Due Date of this Note, Borrowers shall pay to the Lender a prepayment penalty in that amount determined to bring total interest actually received by the Lender from the inception of this Note to Seventy Five Thousand Dollars ($75,000.00). Early payments will not, unless agreed to by Lender in writing, relieve Borrowers of Borrowers’ obligation to continue to make payments under the payment schedule or relieve Borrowers from their obligation to have paid a minimum of Seventy Five Thousand Dollars ($75,000.00) in interest. Rather, early payments will reduce the principal balance due and may result in Borrowers making fewer payments. Borrowers agree not to send Lender payments marked “paid in full”, “without recourse”, or similar language. If Borrowers send such a payment, Lender may accept it without losing any of Lender’s rights under this Note, and Borrowers 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 the Lender at the address set forth above.

 

LATE CHARGE . If a payment is fifteen (15) days or more late, Borrowers will be charged Five Percent (5.00%) of the unpaid portion of the regularly scheduled payment, but in any event, not less than Fifty Dollars ($50.00).

 

INTEREST AFTER DEFAULT . Upon the occurrence of an Event of Default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the interest rate on this Note by 4.000 percentage points. However, in no event will the interest rate exceed the maximum rate under applicable law. If the Event of Default is curable, as provided for in this Agreement and in the Loan Agreement, once such Event of Default has been cured, the interest rate on this Note shall revert to the interest rate prior to such default as set forth in this Agreement.

  

 

 

 

PROMISSORY NOTE

Page 1 of 4    

 

 

EXECUTION VERSION

 

AUTOMATIC TRANSFER AUTHORIZATION . Borrowers authorize Lender to charge Account No. 229048734151 at Bank of America for all payments due on this Note as set forth in the PAYMENT section of this Note. The Lender may continue to charge the Account until the Loan is paid. Borrowers understand and agree that if a payment due date falls on a non-business day, the payment amount will be debited from the Account and credited to the Loan as a loan payment on the next day banks are open for regular business. Borrowers further understand and agree that if the Account does not have a sufficient balance on a day that a payment is to be debited from the Account and credited to the Loan, Lender may, at its option, suspend further efforts to debit the Account and look to Borrowers for the payment and all subsequent payments until such time as all payments under the Loan are current. At Lender’s option and sole discretion, Lender may resume charging the Account without further instruction from Borrowers once all payments are current. In the event that Lender does not resume charging to the Account, Lender will notify Borrowers in writing that this authorization has been cancelled. Such cancellation of this authorization does not excuse Borrowers from making timely payment under the terms of the Note.

 

DEFAULT . Each of the following shall constitute an event of default (“ Event of Default ”) under this Note:

 

Payment Default . Borrowers fail to make any payment when due under this Note. Borrowers shall have the right to cure such default within three (3) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrower shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Other Defaults . Borrowers fail 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 Borrowers. Borrowers shall have the right to cure such default within seven (7) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Default in Favor of Third Parties . Any of Borrowers default 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 Borrowers’ property or Borrowers’ ability to repay this Note or perform Borrowers’ obligations under this Note or any of the related documents. Borrowers shall have the right to cure such default within seven (7) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

False Statements . Any warranty, representation or statement made or furnished to Lender by Borrowers or on Borrowers’ behalf under this Note or the related loan documents is false or misleading in any material respect, either now or at the time made or furnished or becomes materially false or misleading at any time thereafter. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Dissolution or Insolvency . The dissolution or termination of any of Borrowers’ existence as a going business, the insolvency of any of Borrowers, the appointment of a receiver for any part of Borrowers’ 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 any of Borrowers. With respect to any involuntary bankruptcy action against the Borrowers, the Borrowers shall have a period of sixty (60) days to cure or effect the rescinding of the involuntary bankruptcy petition.

 

Defective Collateralization . This Note or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

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 any of Borrowers or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrowers’ accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrowers as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrowers give 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.

 

 

 

 

PROMISSORY NOTE

Page 2 of 4    

 

 

EXECUTION VERSION

 

Change in Ownership/Management; Disposal of Assets . Any of Borrowers suffer or permit majority control of any of Borrowers to be sold, assigned or otherwise transferred, or if any of Borrowers make or permit a change in their present senior level management, or if any of Borrowers merge or consolidate with any company or enterprise, or otherwise disposes of a substantial portion (as determined by Lender) of its assets or properties.

 

Adverse Change . A material adverse change occurs in any of Borrowers’ respective financial conditions, or Lender reasonably believes in good faith that the prospect of payment or performance of this Note is impaired. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Insecurity . Lender reasonably and in good faith believes itself insecure. Borrowers shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Borrowers cure such default within the specified cure period, Borrowers shall be entitled to continue with the Loan as if no default has occurred. If Borrowers fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

LENDER’S RIGHTS . Following the occurrence of an Event of Default, Lender may declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, and then Borrowers will pay that amount.

 

ATTORNEYS’ FEES; EXPENSES . Lender may hire or pay someone else to help collect this Note if Borrowers do not pay. Borrowers will pay Lender that amount. This includes, subject to any limits under applicable law, Lender’s reasonable attorneys’ fees and Lender’s legal expenses, whether or not there is a lawsuit, including without limitation all attorneys’ fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrowers also will pay any court costs, in addition to all other sums provided by law.

 

JURY WAIVER. Lender and Borrowers hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender or Borrowers against the other.

 

GOVERNING LAW. This Note will be governed by, construed and enforced in accordance with federal law and the laws of the State of Iowa. This Note has been accepted by Lender in the State of Iowa.

 

CHOICE OF VENUE . If there is a lawsuit, Borrowers agree upon Lender’s request to submit to the jurisdiction of the courts of POLK County, State of Iowa.

 

DISHONORED ITEM FEE . Borrowers will pay a fee to Lender of $50.00 if Borrowers make a payment on Borrowers’ loan and the check or preauthorized charge with which Borrowers pay is later dishonored.

 

COLLATERAL . Borrowers acknowledge that this Note is secured by the following collateral described in the security instruments listed herein: (i) Security Agreement given by Borrowers.

 

LINE OF CREDIT . This Note evidences a revolving line of credit. Advances under this Note may be requested orally or in writing by Borrowers or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. Borrowers agree to be liable for all sums advanced in accordance with the instructions of an authorized person. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender’s internal records, including daily computer print-outs.

 

PURPOSE OF LOAN . The specific purpose of this loan is for Borrowers’ working capital. Advances may not be used as distributions to or withdrawals by any officer, director, or shareholder of Borrowers or any other person or entity.

 

SUCCESSOR INTERESTS . The terms of this Note shall be binding upon the Borrowers, and upon Borrowers’ successors and assigns, and shall inure to the benefit of Lender and its successors and assigns .

 

GENERAL PROVISIONS . Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrowers 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, 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.

 

 

 

 

PROMISSORY NOTE

Page 3 of 4    

 

 

EXECUTION VERSION

 

PRIOR TO SIGNING THIS NOTE, BORROWERS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. BORROWERS AGREE TO THE TERMS OF THE NOTE.

 

BORROWERS ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.

 

IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS, (EXCEPT CONSUMER LOANS OR OTHER EXEMPT TRANSACTIONS) NOW IN EFFECT BETWEEN YOU AND THIS LENDER.

 

BORROWERS :

 

FIRSTFORM, INC.

 

By /s/ Jeromy Olson  
  Jeromy Olson, its CEO  

 

SPORTS FIELD HOLDINGS, INC.

 

By /s/ Jeromy Olson  
  Jeromy Olson, its CEO  

 

 

 

 

PROMISSORY NOTE

  

Page 4 of 4  

 

 

Exhibit 10.3

 

EXECUTION VERSION

 

COMMERCIAL SECURITY AGREEMENT

 

Grantors:

SPORTS FIELD HOLDINGS, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

 

FIRSTFORM, INC.

4320 Winfield Road, Suite 200

Warrenville, IL 60555

 

  Lender:

GENLINK CAPITAL, LLC

1205 N. Ankeny Blvd., Suite 209

Ankeny, IA 50023

 

THIS COMMERCIAL SECURITY AGREEMENT dated July 14, 2016, is made and executed between SPORTS FIELD HOLDINGS, INC., a Nevada corporation, and FirstForm, Inc. , a Florida corporation (collectively, the “Grantors) and GENLINK CAPITAL, LLC, a Delaware limited liability company ("Lender").

 

GRANT OF SECURITY INTEREST. For valuable consideration, Grantors grant to Lender a security interest in the Collateral to secure the Indebtedness and agrees that Lender shall have the rights stated in this Agreement with respect to the Collateral, in addition to all other rights which Lender may have by law.

 

COLLATERAL DESCRIPTION . The word "Collateral" as used in this Agreement means the following described property, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located, in which Grantors are giving to Lender a security interest for the payment of the Indebtedness and performance of all other obligations under the Note and this Agreement:

 

All inventory, equipment, accounts (including but not limited to all health-care-insurance receivables), chattel paper, instruments (including but not limited to all promissory notes), letter-of-credit rights, letters of credit, documents, deposit accounts, investment property, money, other rights to payment and performance, and general intangibles (including but not limited to all software and all payment intangibles); all oil, gas and other minerals before extraction; all oil, gas, other minerals and accounts constituting as-extracted collateral; all fixtures; all timber to be cut; all attachments, accessions, accessories, fittings, increases, tools, parts, repairs, supplies, and commingled goods relating to the foregoing property, and all additions, replacements of and substitutions for all or any part of the foregoing property; all insurance refunds relating to the foregoing property; all good will relating to the foregoing property; all records and data and embedded software relating to the foregoing property, and all equipment, inventory and software to utilize, create, maintain and process any such records and data on electronic media; and all supporting obligations relating to the foregoing property; all rents, leases, easements, servitudes, after-acquired property, improvements, additional lands, contracts, permits, franchises and personal property; all whether now existing or hereafter arising, whether now owned or hereafter acquired or whether now or hereafter subject to any rights in the foregoing property; and all products and proceeds (including but not limited to all insurance payments) of or relating to the foregoing property.

 

In addition, the word "Collateral" also includes all the following, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located:

 

(A)  All accessions, attachments, accessories, tools, parts, supplies, replacements of and additions to any of the collateral described herein, whether added now or later.

(B)  All products and produce of any of the property described in this Collateral section.

(C)  All accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, or other disposition of any of the property described in this Collateral section.

(D)  All proceeds (including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the property described in this Collateral section, and sums due from a third party who has damaged or destroyed the Collateral or from that party's insurer, whether due to judgment, settlement or other process.

(E)  All records and data relating to any of the property described in this Collateral section, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of Grantors' rights, title, and interest in and to all computer software required to utilize, create, maintain, and process any such records or data on electronic media.

 

CROSS-COLLATERALIZATION . In addition to the Note, this Agreement secures all obligations, debts and liabilities, plus interest thereon, of Grantors to Lender, or any one or more of them, as well as all claims by Lender against Grantors or any one or more of them, whether now existing or hereafter arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, determined or undetermined, absolute or contingent, liquidated or unliquidated, whether Grantors may be liable individually or jointly with others, whether obligated as guarantor, surety, accommodation party or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any statute or limitations, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable.

 

FUTURE ADVANCES . In addition to the Note, this Agreement secures all future advances made by Lender to Grantors regardless of whether the advances are made (a) pursuant to a commitment or (b) for the same purposes.

 

  Page 1  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

RIGHT OF SETOFF . To the extent permitted by applicable law, Lender reserves a right of setoff in all Grantors’ accounts with Lender (whether checking, savings, or some other account). This includes all accounts Grantors hold jointly with someone else and all accounts Grantors 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. Grantors authorize Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the Indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph.

 

GRANTORS’ REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL . With respect to the Collateral, Grantors represent and promise to Lender that:

 

Perfection of Security Interest . Grantors agree to execute financing statements and to take whatever other actions are requested by Lender to perfect and continue Lender's security interest in the Collateral. Upon request of Lender, Grantors will deliver to Lender any and all of the documents evidencing or constituting the Collateral, and Grantors will note Lender's interest upon any and all chattel paper if not delivered to Lender for possession by Lender. This is a continuing Security Agreement and will continue in effect even though all or any part of the Indebtedness is paid in full and even though for a period of time Grantors may not be indebted to Lender.

 

Notices to Lender. Grantors will promptly notify Lender in writing at Lender's address shown above (or such other addresses as Lender may designate from time to time) prior to any (1) change in any of the Grantors’ name; (2) change in any of the Grantors’ assumed business name(s); (3) change in the management of any of the Grantors; (4) change in the authorized signer(s); (5) change in any of the Grantors’ principal office address; (6) change in any of the Grantors’ state of organization; (7) conversion of any of the Grantors to a new or different type of business entity; or (8) change in any other aspect of any of the Grantors that directly or indirectly relates to any agreements between Grantors and Lender. No change in any of the Grantors’ name or state of organization will take effect until after Lender has received notice.

 

No Violation . The execution and delivery of this Agreement will not violate any law or agreement governing Grantors or to which any of the Grantors are a party, and its articles of incorporation and bylaws do not prohibit any term or condition of this Agreement.

 

Enforceability of Collateral . To the extent the Collateral consists of accounts, chattel paper, or general intangibles, as defined by the Uniform Commercial Code, the Collateral is enforceable in accordance with its terms, is genuine, and fully complies with all applicable laws and regulations concerning form, content and manner of preparation and execution, and all persons appearing to be obligated on the Collateral have authority and capacity to contract and are in fact obligated as they appear to be on the Collateral. At the time any account becomes subject to a security interest in favor of Lender, the Account shall be a good and valid account representing an undisputed, bona fide indebtedness incurred by the account debtor, for merchandise held subject to delivery instructions or previously shipped or delivered pursuant to a contract of sale, or for services previously performed by Grantors with or for the account debtor. So long as this Agreement remains in effect, Grantors shall not, without Lender's prior written consent, compromise, settle, adjust, or extend payment under or with regard to any such accounts. There shall be no setoffs or counterclaims against any of the Collateral, and no agreement shall have been made under which any deductions or discounts may be claimed concerning the Collateral except those disclosed to Lender in writing.

 

Location of the Collateral. Except in the ordinary course of Grantors’ respective businesses, Grantors agree to keep the Collateral (or to the extent the Collateral consists of intangible property such as accounts or general intangibles, the records concerning the Collateral) at Grantors’ addresses shown above or at such other locations as are acceptable to Lender. Upon Lender's request, Grantors will deliver to Lender in form satisfactory to Lender a schedule of real properties and Collateral locations relating to Grantors’ operations, including without limitation the following: (1) all real property Grantors owns or are purchasing; (2) all real property Grantors are renting or leasing; (3) all storage facilities Grantors own, rent, lease, or use; and (4) all other properties where Collateral is or may be located.

 

Removal of the Collateral. Except in the ordinary course of Grantors’ respective businesses, including the sales of inventory, Grantors shall not remove the Collateral from its existing location without Lender's prior written consent. To the extent that the Collateral consists of vehicles, or other titled property, Grantors shall not take or permit any action which would require application for certificates of title for the vehicles outside the State of Iowa, without Lender's prior written consent. Grantors shall, whenever requested, advise Lender of the exact location of the Collateral.

 

Transactions Involving Collateral. Except for inventory sold or accounts collected in the ordinary course of Grantors’ respective businesses, or as otherwise provided for in this Agreement, Grantors shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral. While an Event of Default has not occurred under this Agreement, Grantors may sell inventory, but only in the ordinary course of its business and only to buyers who qualify as a buyer in the ordinary course of business. A sale in the ordinary course of Grantors’ respective businesses does not include a transfer in partial or total satisfaction of a debt or any bulk sale. Grantors shall not pledge, mortgage, encumber or otherwise permit the Collateral to be subject to any lien, security interest, encumbrance, or charge, other than the security interest provided for in this Agreement, without the prior written consent of Lender. This includes security interests even if junior in right to the security interests granted under this Agreement. Unless waived by Lender, all proceeds from any disposition of the Collateral (for whatever reason) shall be held in trust for Lender and shall not be commingled with any other funds; provided however, this requirement shall not constitute consent by Lender to any sale or other disposition. Upon receipt, Grantors shall immediately deliver any such proceeds to Lender.

 

  Page 2  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

Title . Grantors represent and warrant to Lender that Grantors hold good and marketable title to the Collateral, free and clear of all liens and encumbrances except for the lien of this Agreement. The liens granted hereby are not the type of lien referred to in Chapter 575 of the Iowa Code, as now enacted or hereafter modified, amended or replaced. Grantors, for themselves and all persons claiming by, through or under Grantors, agree that they claims no lien or right to a lien of the type contemplated by Chapter 575 or any other chapter of the Code of Iowa, or any other common law lien, and further waives all notices and rights pursuant to said law with respect to the liens hereby granted, and represents and warrants that it is the sole party entitled to do so and agrees to indemnify and hold harmless Lender from any loss, damage, and costs, including reasonable attorney fees, threatened or suffered by Lender arising either directly or indirectly as a result of any claim of the applicability of said law to the liens hereby granted. No financing statement covering any of the Collateral is on file in any public office other than those which reflect the security interest created by this Agreement or to which Lender has specifically consented. Grantors shall defend Lender's rights in the Collateral against the claims and demands of all other persons.

 

Repairs and Maintenance. Grantors agree to keep and maintain, and to cause others to keep and maintain, the Collateral in good order, repair and condition at all times while this Agreement remains in effect. Grantors further agree to pay when due all claims for work done on, or services rendered or material furnished in connection with the Collateral so that no lien or encumbrance may ever attach to or be filed against the Collateral.

 

Inspection of Collateral . Lender and Lender's designated representatives and agents shall have the right at all reasonable times to examine and inspect the Collateral wherever located.

 

Taxes, Assessments and Liens. Grantors will pay when due all taxes, assessments and liens upon the Collateral, its use or operation, upon this Agreement, upon any promissory note or notes evidencing the Indebtedness, or upon any of the other Related Documents. Grantors may withhold any such payment or may elect to contest any lien if Grantors are in good faith conducting an appropriate proceeding to contest the obligation to pay and so long as Lender's interest in the Collateral is not jeopardized in Lender's sole opinion. If the Collateral is subjected to a lien which is not discharged within fifteen (15) days, Grantors shall deposit with Lender cash, a sufficient corporate surety bond or other security satisfactory to Lender in an amount adequate to provide for the discharge of the lien plus any interest, costs, attorneys' fees or other charges that could accrue as a result of foreclosure or sale of the Collateral. In any contest Grantors shall defend themselves and Lender and shall satisfy any final adverse judgment before enforcement against the Collateral. Grantors shall name Lender as an additional obligee under any surety bond furnished in the contest proceedings. Grantors further agree to furnish Lender with evidence that such taxes, assessments, and governmental and other charges have been paid in full and in a timely manner. Grantors may withhold any such payment or may elect to contest any lien if Grantors are in good faith conducting an appropriate proceeding to contest the obligation to pay and so long as Lender's interest in the Collateral is not jeopardized.

 

Compliance with Governmental Requirements. Grantors shall comply promptly with all laws, ordinances, rules and regulations of all governmental authorities, now or hereafter in effect, applicable to the ownership, production, disposition, or use of the Collateral, including all laws or regulations relating to the undue erosion of highly-erodible land or relating to the conversion of wetlands for the production of an agricultural product or commodity. Grantors may contest in good faith any such law, ordinance or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Lender's interest in the Collateral, in Lender's opinion, is not jeopardized.

 

Hazardous Substances. Grantors represent and warrant that the Collateral never has been, and never will be so long as this Agreement remains a lien on the Collateral, used in violation of any Environmental Laws or for the generation, manufacture, storage, transportation, treatment, disposal, release or threatened release of any Hazardous Substance. The representations and warranties contained herein are based on Grantors’ due diligence in investigating the Collateral for Hazardous Substances. Grantors hereby (1) release and waive any future claims against Lender for indemnity or contribution in the event Grantors become liable for cleanup or other costs under any Environmental Laws, and (2) agree to indemnify and hold harmless Lender against any and all claims and losses resulting from a breach of this provision of this Agreement. This obligation to indemnify shall survive the payment of the Indebtedness and the satisfaction of this Agreement.

 

Maintenance of Casualty Insurance. Grantors shall procure and maintain all risks insurance, including without limitation fire, theft and liability coverage together with such other insurance as Lender may require with respect to the Collateral, in form, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Grantors, upon request of Lender, will deliver to Lender from time to time the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days' prior written notice to Lender and not including any disclaimer of the insurer's liability for failure to give such a notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantors or any other person. In connection with all policies covering assets in which Lender holds or is offered a security interest, Grantors will provide Lender with such loss payable or other endorsements as Lender may require. If Grantors at any time fails to obtain or maintain any insurance as required under this Agreement, Lender may (but shall not be obligated to) obtain such insurance as Lender deems appropriate, including if Lender so chooses "single interest insurance," which will cover only Lender's interest in the Collateral.

 

  Page 3  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

Application of Insurance Proceeds. Grantors shall promptly notify Lender of any loss or damage to the Collateral. Lender may make proof of loss if Grantors fail to do so within fifteen (15) days of the casualty. All proceeds of any insurance on the Collateral, including accrued proceeds thereon, shall be held by Lender as part of the Collateral. If Lender consents to repair or replacement of the damaged or destroyed Collateral, Lender shall, upon satisfactory proof of expenditure, pay or reimburse Grantors from the proceeds for the reasonable cost of repair or restoration. If Lender does not consent to repair or replacement of the Collateral, Lender shall retain a sufficient amount of the proceeds to pay all of the Indebtedness, and shall pay the balance to Grantors. Any proceeds which have not been disbursed within six (6) months after their receipt and which Grantors have not committed to the repair or restoration of the Collateral shall be used to prepay the Indebtedness.

 

Insurance Reserves. Lender may require Grantors to maintain with Lender reserves for payment of insurance premiums, which reserves shall be created by monthly payments from Grantors of a sum estimated by Lender to be sufficient to produce, at least fifteen (15) days before the premium due date, amounts at least equal to the insurance premiums to be paid. If fifteen (15) days before payment is due, the reserve funds are insufficient, Grantors shall upon demand pay any deficiency to Lender. The reserve funds shall be held by Lender as a general deposit and shall constitute a non-interest-bearing account which Lender may satisfy by payment of the insurance premiums required to be paid by Grantors as they become due. Lender does not hold the reserve funds in trust for Grantors, and Lender is not the agent of Grantors for payment of the insurance premiums required to be paid by Grantors. The responsibility for the payment of premiums shall remain Grantors’ sole responsibility.

 

Insurance Reports. Grantors, upon request of Lender, shall furnish to Lender reports on each existing policy of insurance showing such information as Lender may reasonably request including the following: (1) the name of the insurer; (2) the risks insured; (3) the amount of the policy; (4) the property insured; (5) the then current value on the basis of which insurance has been obtained and the manner of determining that value; and (6) the expiration date of the policy. In addition, Grantors shall upon request by Lender (however not more often than annually) have an independent appraiser satisfactory to Lender determine, as applicable, the cash value or replacement cost of the Collateral.

 

Financing Statements. Grantors authorize Lender to file a UCC financing statement, or alternatively, a copy of this Agreement to perfect Lender's security interest. At Lender's request, Grantors additionally agree to sign all other documents that are necessary to perfect, protect, and continue Lender's security interest in the Property. This includes making sure Lender is shown as the first and only security interest holder on the title covering the Property. Grantors will pay all filing fees, title transfer fees, and other fees and costs involved unless prohibited by law or unless Lender is required by law to pay such fees and costs. Grantors irrevocably appoint Lender to execute financing statements and documents of title in Grantors’ respective names and to execute all documents necessary to transfer title if there is an Event of Default. Lender may file a copy of this Agreement as a financing statement. If Grantors change Grantors’ respective names or addresses, or the name or address of any person granting a security interest under this Agreement changes, Grantors will promptly notify the Lender of such change.

 

GRANTORS’ RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS . Until default and except as otherwise provided below with respect to accounts, Grantors may have possession of the tangible personal property and beneficial use of all the Collateral and may use it in any lawful manner not inconsistent with this Agreement or the Related Documents, provided that Grantors’ right to possession and beneficial use shall not apply to any Collateral where possession of the Collateral by Lender is required by law to perfect Lender's security interest in such Collateral. Until otherwise notified by Lender, Grantors may collect any of the Collateral consisting of accounts. If Lender at any time has possession of any Collateral, whether before or after an Event of Default, Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if Lender takes such action for that purpose as Grantors shall request or as Lender, in Lender's sole discretion, shall deem appropriate under the circumstances, but failure to honor any request by Grantors shall not of itself be deemed to be a failure to exercise reasonable care. Lender shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security interest given to secure the Indebtedness.

 

LENDER'S EXPENDITURES. If any action or proceeding is commenced that would materially affect Lender's interest in the Collateral or if Grantors fail to comply with any provision of this Agreement or any Related Documents, including but not limited to Grantors’ failure to discharge or pay when due any amounts Grantors are required to discharge or pay under this Agreement or any Related Documents, Lender on Grantors’ behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Collateral and paying all costs for insuring, maintaining and preserving the Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantors. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note's maturity. The Agreement also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon the occurrence of an Event of Default.

 

DEFAULT . Each of the following shall constitute an Event of Default under this Agreement:

 

Payment Default. Grantors fail to make any payment when due under the Indebtedness. Grantors shall have the right to cure such default within three (3) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

  Page 4  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

Other Defaults. Grantors fail to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement 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 Grantors. Grantors shall have the right to cure such default within seven (7) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Default in Favor of Third Parties. Grantors default 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 Grantors’ property or ability to perform Grantors’ obligations under this Agreement or any of the Related Documents. Grantors shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

False Statements. Any warranty, representation or statement made or furnished to Lender by Grantors or on Grantors’ behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes materially false or misleading at any time thereafter. Grantors shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Defective Collateralization . This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason. Grantors shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Dissolution or Insolvency. The dissolution of any of the Grantors (regardless of whether election to continue is made) or any other termination of any of the Grantors’ existence as a going business or the death of any member, the insolvency of any of the Grantors, the appointment of a receiver for any part of any of the Grantors’ 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 Grantors. With respect to any involuntary bankruptcy action against the Grantors, the Grantors shall have a period of sixty (60) days to cure or effect the rescinding of the involuntary bankruptcy petition.

 

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 any of the Grantors or by any governmental agency against any collateral securing the Indebtedness. This includes a garnishment of any of the Grantors’ accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantors as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantors give 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.

 

Change in Ownership/Management; Disposal of Assets . Any of the Borrowers suffer or permit majority control of any of the Borrowers to be sold, assigned or otherwise transferred, or if any of the Borrowers make or permit a change in its present senior level management, or if any of the Borrowers merge or consolidate with any company or enterprise, or otherwise disposes of a substantial portion (as determined by Lender) of its assets or properties.

 

Adverse Change. A material adverse change occurs in Grantors’ respective financial conditions, or Lender reasonably and in good faith believes the prospect of payment or performance of the Indebtedness is impaired. Grantors shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

Insecurity . Lender reasonably and in good faith believes itself insecure. Grantors shall have the right to cure such default within fourteen (14) days after receiving written notice from Lender demanding cure of such default. If Grantors cure such default within the specified cure period, Grantors shall be entitled to continue with the Loan as if no default has occurred. If Grantors fail to cure such default within the specified cure period, Lender may proceed with its rights and remedies under the Loan as set forth in this Agreement.

 

  Page 5  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

RIGHTS AND REMEDIES ON DEFAULT . If an Event of Default occurs under this Agreement, Lender shall have all the rights of a secured party under the Iowa Uniform Commercial Code. In addition and without limitation, Lender may exercise any one or more of the following rights and remedies:

 

Accelerate Indebtedness. Lender may declare the entire Indebtedness, including any prepayment penalty which Grantors would be required to pay, immediately due and payable, without notice of any kind to Grantors.

 

Assemble Collateral. Lender may require Grantors to deliver to Lender all or any portion of the Collateral and any and all certificates of title and other documents relating to the Collateral. Lender may require Grantors to assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender also shall have full power to enter upon the property of Grantors to take possession of and remove the Collateral. If the Collateral contains other goods not covered by this Agreement at the time of repossession, Grantors agree Lender may take such other goods, provided that Lender makes reasonable efforts to return them to Grantors after repossession.

 

Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in Lender's own name or that of Grantors. Lender may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender will give Grantors, and other persons as required by law, reasonable notice of the time and place of any public sale, or the time after which any private sale or any other disposition of the Collateral is to be made. However, no notice need be provided to any person who, after Event of Default occurs, enters into and authenticates an agreement waiving that person's right to notification of sale. The requirements of reasonable notice shall be met if such notice is given at least ten (10) days before the time of the sate or disposition. All expenses relating to the disposition of the Collateral, including without limitation the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall become a part of the Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rate from date of expenditure until repaid.

 

Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Collateral, with the power to protect and preserve the Collateral, to operate the Collateral preceding foreclosure or sale, and to collect the Rents from the Collateral and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Collateral exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver.

 

Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may collect the payments, rents, income, and revenues from the Collateral. Lender may at any time in Lender's discretion transfer any Collateral into Lender's own name or that of Lender's nominee and receive the payments, rents, income, and revenues therefrom and hold the same as security for the Indebtedness or apply it to payment of the Indebtedness in such order of preference as Lender may determine. Insofar as the Collateral consists of accounts, general intangibles, insurance policies, instruments, chattel paper, choses in action, or similar property, Lender may demand, collect, receipt for, settle, compromise, adjust, sue for, foreclose, or realize on the Collateral as Lender may determine, whether or not Indebtedness or Collateral is then due. For these purposes, Lender may, on behalf of and in the name of Grantors, receive, open and dispose of mail addressed to Grantors; change any address to which mail and payments are to be sent; and endorse notes, checks, drafts, money orders, documents of title, instruments and items pertaining to payment, shipment, or storage of any Collateral. To facilitate collection, Lender may notify account debtors and obligors on any Collateral to make payments directly to Lender.

 

Obtain Deficiency . If Lender chooses to sell any or all of the Collateral, Lender may obtain a judgment against Grantors for any deficiency remaining on the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this Agreement. Grantors shall be liable for a deficiency even if the transaction described in this subsection is a sale of accounts or chattel paper.

 

Other Rights and Remedies. Lender shall have all the rights and remedies of a secured creditor under the provisions of the Iowa Uniform Commercial Code, as may be amended from time to time. In addition, Lender shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise.

 

Election of Remedies . Except as may be prohibited by applicable law, all of Lender's rights and remedies, whether evidenced by this Agreement, the Related Documents, or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantors under this Agreement, after Grantors’ failure to perform, shall not affect Lender's right to declare a default and exercise its remedies.

 

  Page 6  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

MISCELLANEOUS PROVISIONS . The following miscellaneous provisions are a part of this Agreement:

 

Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

 

Attorneys' Fees; Expenses. Grantors agree to pay upon demand all of Lender's costs and expenses, including Lender's reasonable attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Agreement. Lender may hire or pay someone else to help enforce this Agreement, and Grantors shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Grantors also shall pay all court costs and such additional fees as may be directed by the court.

 

Caption Headings . Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.

 

Governing Law. This Agreement will be governed by, construed and enforced in accordance with federal law and the laws of the State of Iowa. This Agreement has been accepted by Lender in the State of Iowa.

 

Choice of Venue . If there is a lawsuit, Grantors agree upon Lender's request to submit to the jurisdiction of the courts of POLK County, State of Iowa, except to the extent otherwise required by the laws of the jurisdiction where the Collateral is located.

 

No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Grantors, shall constitute a waiver of any of Lender's rights or of any of Grantors’ obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.

 

Notices. Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, when actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party's address. For notice purposes, Grantors agree to keep Lender informed at all times of Grantors’ current address. Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any of the Grantors is deemed to be notice given to all Grantors.

 

Power of Attorney. Grantors hereby appoint Lender as Grantors’ irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect, amend, or to continue the security interest granted in this Agreement or to demand termination of filings of other secured parties. Lender may at any time, and without further authorization from Grantors, file a carbon, photographic or other reproduction of any financing statement or of this Agreement for use as a financing statement. Grantors will reimburse Lender for all expenses for the perfection and the continuation of the perfection of Lender's security interest in the Collateral.

 

Severability. If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.

 

Successors and Assigns. Subject to any limitations stated in this Agreement on transfer of Grantors’ interest, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns. If ownership of the Collateral becomes vested in a person other than Grantors, Lender, without notice to Grantors, may deal with Grantors’ successors with reference to this Agreement and the Indebtedness by way of forbearance or extension without releasing Grantors from the obligations of this Agreement or liability under the Indebtedness.

 

Survival of Representations and Warranties. All representations, warranties, and agreements made by Grantors in this Agreement shall survive the execution and delivery of this Agreement, shall be continuing in nature, and shall remain in full force and effect until such time as Grantors’ Indebtedness shall be paid in full.

 

Time is of the Essence. Time is of the essence in the performance of this Agreement.

 

Waive Jury. All parties to this Agreement hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by any party against any other party.

 

  Page 7  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Agreement. Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code:

 

Agreement. The word "Agreement" means this Commercial Security Agreement, as this Commercial Security Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Commercial Security Agreement from time to time.

 

Borrowers. The word "Borrowers" means SPORTS FIELD HOLDINGS, INC., a Nevada corporation, and FirstForm, Inc. , a Florida corporation, and includes all co-signers and co-makers signing the Note and all their successors and assigns.

 

Collateral. The word "Collateral" means all of Grantors’ right, title and interest in and to all the Collateral as described in the Collateral Description section of this Agreement.

 

Default. The word "Default" means the Default set forth in this Agreement in the section titled "Default".

 

Environmental Laws. The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances relating to the protection of human health or the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or regulations adopted pursuant thereto.

 

Event of Default. The words "Event of Default" mean any of the events of default set forth in this Agreement in the default section of this Agreement.

 

Grantors. The word "Grantors" means SPORTS FIELD HOLDINGS, INC., a Nevada corporation, and FirstForm, Inc. , a Florida corporation.

 

Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical, chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or waste as defined by or listed under the Environmental Laws. The term "Hazardous Substances" also includes, without limitation, petroleum and petroleum by-products or any fraction thereof and asbestos.

 

Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the Note or Related Documents, including all principal and interest together with all other indebtedness and costs and expenses for which Borrowers or Grantors are responsible under this Agreement or under any of the Related Documents. Specifically, without limitation, Indebtedness includes the future advances set forth in the Future Advances provision, together with all interest thereon and all amounts that may be indirectly secured by the Cross-Collateralization provision of this Agreement.

 

Lender. The word "Lender" means GENLINK CAPITAL, LLC, its successors and assigns.

 

Note. The word "Note" means the Note executed by the Borrowers in the principal amount of $1,000,000.00 dated July 14, 2016, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the note or credit agreement.

 

Property. The word "Property" means all of Grantors’ rights, title and interest in and to all the Property as described in the "Collateral Description" section of this Agreement.

 

Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.

 

GRANTORS ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF THIS COMMERCIAL SECURITY AGREEMENT AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.

 

GRANTORS HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED JULY 14, 2016.

 

  Page 8  

 

 

COMMERCIAL SECURITY AGREEMENT

(Continued)

 

 

IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.

 

GRANTORS:

 

SPORTS FIELD HOLDINGS, INC.

 

By /s/ Jeromy Olson  
  Jeromy Olson, its CEO  

 

FIRSTFORM, INC.

 

By /s/ Jeromy Olson  
  Jeromy Olson, its CEO  

 

 

Page 9