Woodforest National Bank
Secured Business ReLi
Revolving Line of Credit Agreement
and Disclosures
Disclosure
Version Date: July 1, 2016
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****IMPORTANT
NOTICE****
You
are applying for a revolving line of credit from
Woodforest National Bank that will be associated with your Woodforest business
checking account. Each Woodforest business
checking account may have (subject to satisfaction of applicant eligibility
requirements) either our PrivilegePay® overdraft
protection product or a revolving line of credit associated with such
account, but not both. If the
revolving line of credit for which you are applying is approved and made
available to you, any PrivilegePay overdraft
protection product that was previously associated with the business checking
account identified in the application will be removed and replaced by the approved
revolving line of credit. Upon the
expiration of the Term (as defined below), or if the revolving line of credit
is terminated by either you or us, you may then request the PrivilegePay overdraft protection product be re-instated
for the applicable business checking account if you meet Woodforest’s
then-current eligibility requirements.
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This Agreement
contains an arbitration provision.
Please read the arbitration provision carefully as it affects your legal
rights. As more fully described herein,
it provides that any Claims (as defined below) must, at the election of either
you or us, be resolved by binding individual arbitration.The arbitration procedures are simpler and
more limited than rules applicable in court, and arbitration decisions are subject
to very limited review.
This Agreement
contains a Guaranty Agreement applicable to one or more Guarantors.
Term of
revolving line of credit: Two (2) years
from the Effective Date (as defined below), unless the revolving line of credit
is suspended or terminated by you or us pursuant to express terms hereof.
Introduction:
This
Secured Business ReLi
Revolving Line of Credit Agreement and Disclosures
(as amended by
Woodforest from time to time, the “Agreement”) governs the revolving
line of credit issued to you through the Bank.
In this Agreement, the words "Borrower," "you" and
"your” mean each and every person who signs or submits the Application (as
defined below) or this Agreement or applies for a Woodforest revolving line of
credit, in each case as a primary obligor (and including each and every person
authorized as a signer on the “Designated Account” (as defined below)). The
word “Guarantor” means each and every person who agrees to guarantee and be
liable for (the “Guaranty”), the repayment of all Indebtedness (as
defined below) subject of this Agreement.
The words "we", "us", "our", “Woodforest”,
and "Bank" means Woodforest National Bank, having a mailing
address of P.O. Box 7889, The Woodlands, Texas 77387-7889, and its successors
and assigns. The word “parties” refers
to you, each Guarantor, and Woodforest.
Acceptance and
Agreement:
You and each Guarantor agree to the
terms, conditions and provisions of this Agreement. You and each
Guarantor also acknowledge and agree that your submission of the Application
and/or your use of funds advanced by the Bank hereunder, whether used by you or
an authorized signer of the Designated Account (as defined below), constitutes
your acceptance of the terms, conditions, and provisions of this Agreement.
The following interest
rates shall apply to your revolving line of credit (collectively, the “
Finance
Charges
”):
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Interest Rate and Interest Charges
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Annual Percentage
Rate (APR) Applied to Advances
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7.99%
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Paying Interest
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You will be charged
interest from the date funds are advanced.
No grace period exists.
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Fees
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Annual Fee
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None
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Late Payment Fee
(each occurrence)
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$5.00 or 5% of the
Minimum Monthly Payment (as defined below), whichever is less.
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Applying for Revolving Credit:
You
are applying for a revolving line of
credit from the Bank.
You hereby and each
Guarantor represent and warrant to the Bank that the information provided in the
application is true, complete and correct and contains no material omissions.
The Bank, and/or any other Woodforest business, may rely on this information.
You authorize the Bank to obtain a credit report on you from time to time and
you acknowledge you have the right to ask for the name and address of the
credit reporting agency which gave the Bank the credit report. All applications
will be processed by the Bank and shall remain the Bank’s exclusive property.
If the revolving credit line is approved, the credit amount made
available to you will be based on a review of the information you and/or any
Guarantor may provide in the Application and your, or any Guarantor’s, consumer/credit
report; it may also include other information we may have bearing on your
creditworthiness, income, revenues, and/or ability to repay and/or of any
Guarantor(s) and will be advanced and repaid according to the rules set out in
this Agreement. If we elect to extend credit to you pursuant to this
Application and Agreement, you acknowledge that we reserve the right throughout
the Term (as defined below) of this Agreement, subject to applicable law, to
increase or reduce the amount of any credit we make available to you based upon
any change in circumstances affecting, or potentially affecting, your, or any
Guarantor’s, creditworthiness and/or ability to repay or our ability to collect
from you and/or any Guarantor. You
further acknowledge that we may, subject to applicable law, reduce the amount
of any credit we make available to you
at any time and for any or no reason including,
without limitation, if you cease to maintain an active depository account
relationship, in good standing, with the Bank.
If we
elect to extend credit to you pursuant to this Application and Agreement, the
business checking account designated in the Secured
Business
ReLi Revolving Line of Credit Application
(the ”Application,” which is incorporated herein by reference for all
purposes) and any successor account thereto (such business checking account referenced
in the Application (and any successor thereto) shall be referred to as the “
Designated
Account
”) will become a business checking account with revolving line of credit features and
you agree to draw upon the revolving line of credit only to the limit made
available to you; provided, that if you exceed the limit of revolving credit
made available to you, you and each Guarantor shall nonetheless remain liable
for the amount of such excess.
IMPORTANT LIMITATIONS ON
AVAILABILITY OF REVOLVING LINE OF CREDIT:
1.
Effect of Revolving Line of Credit on PrivilegePay® Overdraft Protection Product
:
You are applying for a revolving line of credit from the Bank that
will be associated with the Designated Account.
Each Woodforest business checking account may have (subject to
satisfaction of applicant eligibility requirements) either our PrivilegePay® overdraft protection product or a revolving
line of credit associated with such account, but not both.If the revolving line of credit for which you
are applying is approved and made available to you, any PrivilegePay
that was previously associated with the Designated Account will be removed and
replaced by the revolving line of credit.
Upon the expiration of the Term of the revolving line of credit or if
the revolving line of credit is terminated by either you or us, you may then
request the PrivilegePay overdraft protection product
be re-instated for the Designated Account if you satisfy Woodforest’s
then-current eligibility requirements.
2.
You
agree that if the revolving line of credit is made available to you and you
have checking accounts with us besides the Designated Account (such checking
account(s) excluding the Designated Account shall be referred to as the “
Additional
Accounts
”), such Additional Accounts may not be eligible to participate in
the PrivilegePay overdraft protection product unless
such Additional Accounts have at least one co-owner other than the Borrower
hereunder.
3.
Non-availability of
Revolving Line of Credit for Checking Accounts that participate in the Take
Charge Program®
. A Woodforest
business checking account that participates in the Woodforest Take Charge
Program is not eligible to obtain a revolving line of credit associated with
such business checking account unless, and until such time as, the business
checking account has been removed from the Take Charge Program and we have
elected to make the revolving line of credit available to you.
Promise to
Pay:
You and each Guarantor promise to pay the Bank the total of all credit advances
made by us under the revolving line of credit, any Finance Charges (as defined
and calculated below), any applicable fees, together with all amounts, costs,
and expenses for which you are responsible under this Agreement (all of the
foregoing shall be collectively referred to as the “Indebtedness”).If there is more than one Borrower, each is
jointly and severally liable under this Agreement (along with any Guarantor(s))
for all Indebtedness. This means we can require any Borrower and/or
Guarantor(s) to pay all amounts due under this Agreement, including credit
advances made to any Borrower, without first attempting to collect from any
other Borrower or Guarantor. Each Borrower
authorizes any other Borrower to request and receive credit advances and to do
all other things necessary to carry out the terms of this Agreement without
requiring the permission of the other Borrower.
You and each Guarantor acknowledge and agree that Bank is entitled to
rely upon and act upon requests made, or purportedly made, by any of the
officers or employees of the Borrower, and Borrower and each Guarantor shall be
unconditionally and absolutely estopped from denying (i)
the authenticity and validity of any such transaction so acted upon by Bank
once Bank has advanced funds under the revolving line of credit and has
deposited or transferred such funds as requested in any such request, and (ii)
the liability and responsibility of Borrower and each Guarantor therefor.
If we have to collect through probate, an
attorney, bankruptcy or any other proceedings, or if we should have to sue, you
agree to pay all of our attorney’s fees and court and/or arbitration costs (as
applicable).
Business
Purpose.
You and each Guarantor hereby represent
and warrant that the extension of credit pursuant to this Agreement is solely
for business or commercial purpose, other than agricultural purposes. You and
each Guarantor further hereby represent and warrant that such extension of
credit is specifically exempted under Section 226.3(a) of Regulation Z issued
by the Board of Governors of the Federal Reserve System and under 15 U.S.C.A
§1603 of the Consumer Credit Protection Act, and that no disclosures are
required to be given under such regulation and federal, state, or local law in
connection with the such extension. You and each Guarantor further acknowledge
that it is in reliance upon the truth of the statements hereinabove contained,
that Bank is making said loan without giving to the Borrower the disclosures
that may be otherwise required under such regulation and federal law.
Credit Advances:
In order to activate your revolving line of
credit on the Designated Account in excess of the available collected balance in
the Designated Account, you may write a check, request a credit advance in
person at any of our retail branch locations, initiate automated clearing house
transactions from your Designated Account, use your Bank-issued debit card to
perform transactions, or advance funds from your revolving line of credit to
the Designated Account using Woodforest Online Banking; provided, no
credit advance will take place to cover funds automatically transferred from
the Designated Account to another Woodforest account via Account Sweep (as
defined below). We will use whatever balance you have in your Designated
Account first and then we will advance funds into your Designated Account in
the amount that you request or until we have covered the insufficient items or
you have exhausted the amount of available credit in your revolving line of
credit, whichever occurs first.
Order of Advances When Account Sweep is Present for
Designated Account:
In the event the Designated Account has a
revolving line of credit with available funds sufficient to pay any item(s)
being presented and Account Sweep has been established using funds from another
eligible Woodforest account (the “Sweep Account”), available funds from
the revolving line of credit will advance first before any funds will be swept
into the Designated Account from the Sweep Account. If the revolving line of
credit has insufficient available funds to cover all item(s) being presented
for payment, then the Account Sweep from the Sweep Account will occur first to
cover the item(s), then any remaining available funds required to cover the
item(s) will be advanced from the revolving line of credit.For purposes hereof, “Account Sweep” refers
generally to the Bank product that allows you to protect an account against
overdraft and insufficient item fees by transferring available funds from
another Bank account when needed.
NOTICE:The revolving line of credit available funds
are not included or displayed in your Designated Account available balance at
ATM’s, the Teller Line, Online Banking, our Telephone Banking System, or on
Email Notifications. Nevertheless, transactions completed using an ATM, at the
Teller Line, and on Online Banking will continue to use your revolving line of
credit available funds to approve transactions.
Computing the Finance
Charges:
The
day an advance is added to your account,
FINANCE
CHARGES
begin to accrue. Accordingly, no grace period exists. But, only the
portion of your revolving line of credit that is actually advanced will be
charged. This is the method by which
FINANCE
CHARGES
will be computed. We
calculate the FINANCE CHARGE on your
account by applying the periodic rate to the AVERAGE DAILY BALANCE of
your account including current transactions. To get the AVERAGE DAILY BALANCE, we start with the beginning balance of your
account each day, add any new advances posted to your account, and subtract any
payments, credits and unpaid
FINANCE
CHARGES.
This gives us the daily
balance. Then, we add up all the daily
balances for the billing cycle and divide the total by the number of days in
the billing cycle. This will give us the
AVERAGE
DAILY BALANCE
. Any portion of the AVERAGE DAILY BALANCE will be
multiplied by a periodic rate of 0.6658%,
which is the monthly FINANCE CHARGE
for the billing period, for an
ANNUAL
PERCENTAGE RATE
OF 7.99%. The
billing period is the same as the period covered by a monthly bank statement
for your Designated Account.
Monthly Statement:
E
ach month’s business
checking account statement relating to the Designated Account will reflect the
activity in your revolving line of credit including minimum payment due and the
due date for the current billing period.
Payments:
You will have a minimum monthly
payment equal to the greater of 1) $25.00 or 2) 1%
of your outstanding Indebtedness. If you owe $25.00 or less, we will debit the
Designated Account on the payment due date for the total amount of Indebtedness
owed unless payment has already been made for that billing period by one of
the methods listed below. If you
owe more than $25.00, we will debit the Designated Account on the payment
due date in the amount equal to the greater of 1) $25.00 or 2) 1% of your outstanding Indebtedness unless such payment has already been made
for that billing period by one of the methods listed below.You hereby authorize us to post (i) debits to the Designated Account to satisfy the Minimum Monthly
Payment (as defined below) and to correct clerical or administrative errors,
and (ii) credits to the Designated Account if we deem it necessary.Your payment is due on the eighteenth (18th)
calendar day following the end of each period covered by the monthly bank
statement for the Designated Account.
The minimum monthly payment required to be paid under this revolving line
of credit for any given month (as referred to in this section) shall be
referred to as the “Minimum Monthly Payment”.
Any payments
not directly debited by the Bank should be made as follows:
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Mail your payment
to:
Woodforest National
Bank
P.O. Box 7889
The Woodlands, TX 77387
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Other Acceptable Payment Methods:
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Contact Woodforest Customer Care at
(877)
968-7962
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Electronic Funds Transfer
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Money Order
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Other Instruments in U.S. dollars
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Late Payment Fees;
Effect of Late Payment:
If we do not receive a payment from you for any given billing period in
an amount at least equal to the Minimum Monthly Payment within ten (10) days
(including Sundays and holidays) after the applicable payment due date (each a
“Missed Payment”), you will be charged a late payment fee equal to the
lesser of (i) five dollars ($5.00), or (ii) five
percent (5%) of the Minimum Monthly Payment that was not made or timely
made. Such late payment fees will be
assessed for each billing period during the Term in which a Missed Payment
occurs. Notwithstanding anything in this
Agreement to the contrary,
upon the occurrence of a Missed Payment,
you will no longer be able to obtain credit
advances under the revolving line of credit until you remit payment to us for
such Missed Payment(s).
Right of Offset:
To the extent
permitted by applicable law, we reserve the right of offset in all of your, and
any Guarantor’s, accounts with us (whether checking, savings, or some other
account), including without limitation, all accounts you, or any Guarantor, may
open in the future.
Term:
The revolving line of
credit will begin as of the date we notify you that you have satisfied all of
our eligibility and underwriting requirements and the revolving line of credit
is made available to you (the “Effective Date”).Commencing on the Effective Date, you may
obtain credit advances up to the amount of credit made available to you for a
period of two (2) years thereafter (the “Term”), unless this Agreement
and/or the revolving line of credit is suspended or terminated by you or us
prior to the expiration of the Term pursuant to the express terms hereof.Upon the expiration of the Term, you will no
longer have the right to obtain credit advances under the revolving line of
credit and you must repay all Indebtedness owing by you to us pursuant to the
terms and conditions hereof.
Suspension or
Termination for Default:
If (i) you or any Guarantor(s)
fails to comply with any term, condition, or provision of this Agreement, (ii)
you do not make a payment when due or if we in good faith become doubtful of the
ability of you or any Guarantor to repay, (iii) any representation or statement
made or furnished to the Bank by, or on behalf of, you or any Guarantor(s) under
the Application and/or this Agreement is false or misleading in any material
respect, either now or at the time made or furnished, (iv) you or any
Guarantor(s) die, become insolvent, or file a petition in bankruptcy or similar
proceedings or are adjudged bankrupt, (v) a receiver is appointed for you or any
Guarantor(s), (vi) this Agreement is terminated by us or you as expressly
provided in this Agreement, (vii) your business is dissolved, you begin to wind
up your affairs, are authorized to dissolve or wind up your affairs by your
governing body or persons, or any event occurs or condition exists that permits
the dissolution or winding up of the affairs of you, (x) the Designated Account
is, or becomes, subject to any offset(s), encumbrance(s), garnishment(s),
and/or other lien(s) in favor of any person other than the Bank, or (xi) a
final judgment, fine, or sanction is entered against you in an amount greater
than $5,000 and remains unstayed and unsatisfied for
more than thirty (30) days (each of the foregoing shall individually and
collectively be referred to as a “Default”), then we may at any time
thereafter either (in our sole and absolute discretion, and without any notice)
(a) suspend your revolving line of credit (and its revolving features) pending
a review of your, and/or any Guarantor’s, eligibility for creditworthiness and
ability to repay the revolving line of credit account and/or the amounts made
available to you thereunder, or (b) terminate this Agreement and the revolving
line of credit. If we elect to perform a review of your revolving line of
credit, we may adjust the amount of credit we make available to you under the
revolving line of credit (the “Adjusted Available Credit Limit”) and, in
the event we reduce the amount of credit available to you, we may require you and/or
any Guarantor(s) to promptly repay any outstanding amounts in excess of the
Adjusted Available Credit Limit. Alternatively, we may elect to terminate this
Agreement and your revolving line of credit. If we elect to terminate this
Agreement and your revolving line of credit, we may either (in our sole and
absolute discretion) (a) require you and/or any Guarantor(s) to make monthly
payments in an amount sufficient to repay all Indebtedness over a term to be
determined by us, or (b) terminate the revolving line of credit, in which case
the Indebtedness that you owe will be due immediately and payable in full by
you and/or any Guarantor(s). We may hire an attorney to help collect the
Indebtedness subject of this Agreement if you do not pay when due, and you and
each Guarantor agrees to pay all of our attorney’s fees and court costs and/or
arbitration fees and costs (as applicable). Notwithstanding anything in this
Agreement to the contrary but subject to applicable law, we may terminate this
Agreement or revoke your right to use your revolving line of credit, along with
your right to future advances, at any time and for any or no reason including,
without limitation, if you cease to maintain an active depository account
relationship, in good standing, with the Bank.
Termination
by you:
To terminate the revolving line of credit prior to the expiration of the Term,
you must send a written request to Woodforest National Bank, P.O. Box 7889, The
Woodlands, TX 77387-7889. Despite termination, the obligations of you
and each Guarantor under this Agreement will remain in force and effect until we
have been paid all amounts due under this Agreement.Notwithstanding the foregoing, any request by
you to terminate this Agreement or the revolving line of credit will be
effective only after we have had a reasonable opportunity to act on such
request.
Effect of
Termination:
The termination of this
Agreement, whether initiated by us or you, will not affect any of our rights or
the obligations of you or any Guarantor under this Agreement, including without
limitation, the obligation of you and/or any Guarantor to repay any amounts you
owe us according to the terms of this Agreement, and any amendments made to
this Agreement, which have arisen before the effective date of the termination
of this Agreement, even if we allow an advance to be processed or posted to
your Designated Account after this Agreement has been terminated.
Organization, Good Standing, Authorization and
Power:
In the case where Borrower is not a natural
person, Borrower represents, warrants and covenants to the Bank that Borrower
is duly organized and existing in good standing under the laws of the state of
its incorporation and/or formation and is in good standing in all states in
which it is doing business and has the power and authority to own its
properties and assets and to transact the business in which it is engaged and
is, or will be, qualified in those states wherein it proposes to transact
business in the future. Borrower
represents and warrants to Bank that (i) Borrower is duly
authorized and empowered to create and incur the Indebtedness and enter into,
deliver, and perform this Agreement, (ii) all action (corporate or otherwise)
on Borrower’s part requisite for the execution, delivery and performance of
this Agreement and the creation of the Indebtedness evidenced by this Agreement
has been duly and effectively taken, and (iii) this Agreement constitutes a
legal, valid, and binding obligation enforceable in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency or
other similar laws affecting creditors’ rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered a
proceeding at law or equity).
Right to
Financial and Credit Information:
You and each Guarantor
agree to provide to Woodforest, upon request, financial and credit information
in a form acceptable to Woodforest that is true and correct in all material
aspects and that fairly and accurately presents the provider’s financial
condition at the time such information is provided.
Changes to
this Agreement:
You agree that we may,
in our sole discretion from time to time but subject to applicable law, change
any of the terms, conditions, and/or provisions of, or add new terms,
conditions, or provisions to, this Agreement relating to your revolving line of
credit (including, without limitation, increasing any rate ofFinance Charges, increasing or adding
fees or charges (including annual fees), changing the method of computing
balances subject to Finance Charges,
changing your credit limit or changing the date upon which any Finance Chargesbegin to accrue) by giving notice to
you in accordance with applicable law including in accordance with Section
303.103 of the Texas Finance Code. Subject to applicable law, any such changes
will apply to your outstanding balance of the revolving line of credit on the
effective date of the change and to any future balances created after that
date. You will be deemed to accept all
such changes accompanying the notice if you do not send us a notice to the
contrary in a timely manner. In the event that you reject any changes to this
Agreement, we may terminate this Agreement and your ability to make advances
from the revolving line of credit and you and/or any Guarantor will be
obligated to repay us all Indebtedness as provided herein.No change to any term of this Agreement will
affect your, or any Guarantor’s, obligation to pay all Indebtedness owing under
this Agreement.
Waiver of
Rights:
Except as may be prohibited by law or
regulation, you agree to waive any right you may have for us to: act promptly
in bringing any action(s) against you (known as diligence); demand payments of
amounts due (known as presentment); notify you of the acceleration of any
Indebtedness by us; obtain an official certification of non-payment (known as
protest); and to give notice that amounts due will not be paid (known as notice
of dishonor or notice of default and non-payment).
Waiver of
Jury Trial:
You
and each Guarantor waive a trial by jury of any or all issues arising in any
action or proceeding between the parties hereto or their successors arising
from or relating to this Agreement or any of its provisions.
Delay in
Enforcement:
We may at any time and in our sole discretion
delay or waive enforcing any of our rights or remedies under this Agreement or
under applicable law without losing any of those or any other rights or
remedies. Even if we do not enforce our rights or remedies at any one time, we
may enforce them at a later date. For example, we may accept late payments or
payments that are marked "payment in full" or with other restrictive
endorsements without losing any of our rights under this Agreement.
Severability:
If any
provision of this Agreement is deemed to be void or unenforceable by a court of
competent jurisdiction, any governmental agency, or an arbitrator, that
provision will continue to be enforceable to the extent permitted by that
court, agency, or arbitrator, and the remainder of that provision will no
longer be considered as part of this Agreement. All other provisions of this
Agreement will, however, remain in full force and effect.
Choice of
Venue:
If
there is a lawsuit, transaction of this Agreement occurred in Montgomery
County, Texas. You and each Guarantor
agree upon Woodforest’s request to submit to the
courts of Montgomery County, State of Texas.
Governing
Law:
This Agreement is entered into between you and us in the State of Texas, and
your revolving line of credit and this Agreement, and any claim, dispute or
controversy arising from or relating to your revolving line of credit or this
Agreement, whether based in contract, tort, fraud or otherwise, is governed by,
and construed in accordance with, the laws of the State of Texas and applicable
federal laws and regulations, without regard to Texas’ conflict of laws
principles, Borrower’s place of business or state of incorporation/formation,
or Borrower’s/Guarantor’s place of residence.
The legality, enforceability and interpretation of this Agreement and
the amounts contracted for under the Agreement also are governed by Texas law
and all amounts granted under this Agreement are extended from the State of
Texas. The parties hereto expressly disclaim application of Chapters 342, 346 and
348 of the Texas Finance Code to this Agreement and the transactions governed
hereby and expressly agree that this Agreement and the transactions governed
hereby are commercial transactions subject to Chapter 306 of the Texas Finance
Code.
It is not the intention of the parties that anything
in this Agreement should result in the assessment of interest, fees or charges
in excess of those permitted by applicable law. If any interest, fee or charge
assessed under this Agreement is finally determined to be in excess of that
permitted by applicable law, the excess amount will be applied to reduce the
outstanding balance in your account or, if there is no outstanding balance,
will be refunded to you.
Under no circumstances
(and notwithstanding anything in this Agreement to the contrary) shall the
interest charged, collected, or contracted for in connection with the loan
evidenced hereby exceed the Maximum Rate (as defined herein).The term “Maximum Rate” shall mean the
maximum rate of interest which maybe contracted for, charged, taken, received
or reserved by Bank in accordance with the applicable laws of the State of
Texas (or applicable United States federal law to the extent that such law
permits Bank to contract for, charge, take, receive or reserve a greater amount
of interest than under Texas law), taking into account all Charges (as defined
below) made in connection with the loan evidenced by this Agreement.The interest rate under this Agreement has
been implemented under the “Weekly Ceiling” as referred to in Sections 303.002
and 303.003 of the Texas Finance Code.
As used hereunder, the term "Charges” shall mean all fees, charges
and/or any other things of value, if any, contracted for, charged, taken,
received or reserved by Bank in connection with the transactions relating to
this revolving line of credit, the Agreement, and any related documentation
that evidences or comprises the loan subject of this Agreement and/or the
guaranty therefor, which are treated as interest under applicable law.Borrower does not agree or intend to pay, and
Bank does not intend to contract for, charge, collect, take, reserve or
receive, any amount in the nature of interest or in the nature of a fee for the
loan evidenced by this Agreement, which would in any way or event (including
demand, prepayment, or acceleration) cause Bank to contract for, charge,
collect, take, reserve or receive more than the maximum Bank would be permitted
to contract for, charge, collect, take, reserve or receive by federal law or
the law of the State of Texas (as applicable).
All sums paid or agreed to be paid to Bank for the use, forbearance or
detention of sums due hereunder shall, to the extent permitted by applicable
law, be amortized, prorated allocated and spread throughout the full Term of
the loan evidenced by this Agreement until payment in full so that the rate or
amount of interest on account of the loan evidenced hereby does not exceed the
applicable usury ceiling.
Entire Agreement:
You and each Guarantor acknowledge that this Agreement
(including the Application and any written approval notification we provide to
you in which we disclose the amount of credit we agree to extend to you
),as
expressly
amendedby us in writing
from
time to time, is the entire agreement between you, each Guarantor, and us
relating to the revolving
line of credit and the subject matter hereof
and
supersedes
,and may not be contradicted by,
evidence of any prior or contemporaneous written or oral
communications and understandings between you, any Guarantor, and us concerning
this Agreement or the revolving line of credit
, except pursuant to such written
amendments to the Agreement issued by us from time to time.
You and each Guarantor agree to accept an electronic duplicate or
digital image of
the Application and
this Agreement as a true and correct original and admissible as best evidence
to the extent permitted by applicable law, or a court or arbitrator with proper
jurisdiction. You and each Guarantor
hereby waive any and all rights to claim, for any and all purposes whatsoever,
that electronic copies or imaged copies of Application and this Agreement are
not originals thereof.
Notwithstanding the foregoing, you
acknowledge that except as provided herein, nothing in this Agreement is
intended to supersede, amend, replace, or contradict any terms, conditions, and/or
provisions applicable to (i) the Designated Account,
or (ii) any other written agreement between you or any Guarantor and us,
whether now existing or hereafter arising.
Notice of No Oral Agreements.
THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES
.
Authorization by
Borrower and Guarantor(s) to Bank to Disclose Information:
Borrower and Guarantor(s) each hereby authorize
the disclosure by the Bank (from time to time) to any Borrower and/or
Guarantor(s) any information relating to the loan evidenced hereby including,
without limitation, the name(s) of the Borrower and/or any Guarantor(s), any
information relating to the nature and/or existence of the loan, the amount of
the loan and/or the amount of Indebtedness owing by Borrower or any
Guarantor(s) at any given time, the terms and conditions of the loan (as
amended by the Bank from time to time), the loan repayment status, and the
existence and/or presence of any past or current Defaults and the details
thereof.
Miscellaneous:
Neither y
ou
nor any Guarantor may sell, assign or transfer any rights and/or obligations
under the revolving line of credit, or any of your rights and/or obligations
under this Agreement, and
any such action shall be void ab initio. We may, however,
sell, assign or transfer your account, the revolving line of credit, this
Agreement, and/or any balance due thereunder, and our rights and obligations
under this Agreement to another bank, company, or person without prior notice
to, or consent by, you or any Guarantor, which notice or consent is hereby
waived. That transferee or assignee will take our place in this Agreement.
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ADDITIONAL PROVISIONS APPLICABLE TO GUARANTORS
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Acknowledgments by Guarantor.
Guarantor acknowledges that Borrower is
applying for a revolving line of credit
from the Bank.
Guarantor hereby
represents and warrants to the Bank that the information provided in the
application relating to the Guarantor is true, complete and correct and
contains no material omissions. The Bank, and/or any other Woodforest
business, may rely on this information. Guarantor authorizes the Bank to
obtain a consumer/credit report on Guarantor from time to time and Guarantor
acknowledges they have the right to ask for the name and address of the consumer/credit
reporting agency which gave the Bank the consumer/credit report. Any
application submitted by Guarantor will be processed by the Bank and shall
remain the Bank’s exclusive property.
Notice of No Oral Agreements
.
GUARANTOR
AGREES THAT THIS WRITTEN LOAN AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES
.
Representations and Warranties by Guarantor.
Guarantor represents and warrants to Bank
that (i) Guarantor has received a copy of this
Agreement and has read and understands each and every provision of this
Agreement and the legal effect thereof upon Guarantor, (ii) Guarantor is duly
authorized and empowered to guaranty the Indebtedness and enter into,
deliver, and perform this Agreement, and (iii) all action on Guarantor’s part
requisite for the execution, delivery and performance of this Agreement and
the guaranty of the Indebtedness evidenced by this Agreement has been duly
and effectively taken. Furthermore,
Guarantor represents and warrants that this Agreement constitutes a legal,
valid, and binding obligation enforceable in accordance with its terms, except
as such enforceability may be limited by (i)
bankruptcy, insolvency or other similar laws affecting creditors’ rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered a proceeding at law or equity).
Guaranty.
Guarantor unconditionally guarantees payment
to Bank of all Indebtedness arising under this Agreement.This Guaranty remains in effect until all
Indebtedness arising under this Agreement is paid in full.Guarantor must pay all Indebtedness when
Bank makes written demand upon Guarantor.
Bank is not required to seek payment from Borrower or any other source
before demanding payment from Guarantor. All individuals and entities signing
as Guarantor are jointly and severally liable. Bank may exercise any of its
rights separately or together, as many times as it chooses.Bank may delay or forgo enforcing any of
its rights without losing or impairing any of them. Guarantor may not use an
oral statement to contradict or alter the written terms of this Agreement or
this Guaranty, or to raise a defense to this Guaranty.Except as otherwise expressly provided
herein, if any part of this Guaranty is found to be unenforceable, all other
parts will remain in effect. The
consideration for this Guaranty is the loan to Borrower evidenced by this
Agreement or any accommodation by Bank as to such loan. Guarantor promises to
pay all expenses Bank incurs to enforce this Guaranty, including, but not
limited to, attorney’s fees and costs.
Guarantor has no subrogation rights as to the Indebtedness until such
Indebtedness is paid in full to Bank.
Guarantor
Waiver of Rights, Notices, and Defenses.
To the extent permitted by law,
Guarantor
waives all rights to
require presentment, protest, or demand upon
Guarantor.
Guarantor waives any
notice of
: 1. Any Default under the revolving line of credit or this
Agreement; 2. Presentment, dishonor, protest, or demand; 3.Execution of the revolving line of credit
or this Agreement; 4. Any action or
inaction on the revolving line of credit, such as disbursements, payment,
nonpayment, acceleration, intent to accelerate, assignment, collection
activity, and incurring enforcement expenses; 5. Any change in Borrower’s
financial condition or business operations or of any Guarantor; and 6. Any
changes in the terms of the revolving line of credit or this Agreement,
except increases to the maximum amount of revolving line of credit made
available to the Borrower by Bank after the Effective Date.
Guarantor waives defenses based upon any
claim that
: 1. Bank failed to
obtain any guarantee; 2. Bank failed to obtain, perfect, or maintain a
security interest in any property offered or taken as collateral; 3.
Guarantor’s financial condition or that of any guarantor was overstated or
has adversely changed; 4. Bank made errors or omissions in this Agreement or
administration of the loan to Borrower; 5. Bank did not seek payment from Borrower
or any other guarantors before demanding payment from Guarantor; 6. Bank
impaired Guarantor’s suretyship rights; 7. Bank modified the revolving line
of credit or Agreement terms, other than to increase the maximum amount of revolving
line of credit made available to the Borrower by Bank after the Effective
Date; 8. Borrower has avoided liability on the revolving line of credit; or 9.
Bank has taken an action allowed under the revolving line of credit or this Guaranty.If Bank modifies the revolving line of
credit or this Agreement to increase the maximum amount of revolving line of
credit made available to the Borrower by Bank after the Effective Date
without Guarantor's consent, Guarantor will not be liable for the increased
amounts and related interest and expenses, but remains liable for all other
amounts.
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Kentucky Resident Notice to Guarantor:
(Kentucky Only)
These provisions are for the purpose of KRS
371.065 only and do not waive or avoid Guarantor’s obligations on this
guarantee in part or in whole. The
amount of the maximum principal aggregate liability of each Guarantor is the
revolving line of
credit
amount plus Finance Charges.
The date on which this guarantee terminates is the maturity date plus 2
years, provided such termination shall not affect extensions or renewals of
interest accruing on, or fees, costs or expenses incurred with respect to, such
obligations on or after such date. The
above termination date is extended by any event that delays or avoids the
statutes of limitations.
Georgia Resident Notice to Guarantor: (Georgia
Only)
The undersigned Guarantor hereby waives the
right to require the Holder of the obligations hereby guaranteed to take action
against the debtor as provided for in O.C.G.A. 10-7-24. Notwithstanding any
provision of any of this Agreement, Borrower or Guarantor, as the case may be,
shall reimburse the Bank for reasonable costs and attorney’s fees actually
incurred and shall not be responsible for the percentage imputed by operation
of O.C.G.A. Section 13-1-11.
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ARBITRATION PROVISION
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As used solely in this
provision (Arbitration), the terms “you” and “your” shall have the meaning
assigned to such terms as provided above but shall also be deemed to include
any Guarantor(s) and “we” and “us” will for all purposes mean the Bank and
its successors and assigns, and their respective independent contractors,
agents, employees, directors, officers, and representatives.
You and we each agree
that any Claim (as defined below) that you or we elect to be arbitrated
through binding arbitration under this provision will be arbitrated instead
of litigated in court under the circumstances and procedures set forth below
, even if a lawsuit
has already been initiated with respect to that Claim or a related or
different Claim
.
The term “Claim” (a) means any claim, dispute or controversy between you and
us arising from or relating to the revolving line of credit, the
Indebtedness, this Agreement, the Guaranty by any Guarantor, any prior
related agreement that you may have had with us, and the validity,
enforceability or scope of this provision, and (b) includes claims of every
kind and nature, including but not limited to initial claims, counterclaims,
cross-claims and third-party claims and claims based upon contract, tort,
fraud and other intentional torts, statute, common law and equity. The term
Claim is to be given the broadest possible meaning and includes, by way of
example and without limitation, any claim, dispute or controversy that arises
from or relates to (i) the revolving line of credit
subject of the Agreement or any prior agreement or any balances on the
revolving line of credit, (ii) advertisements, promotions or oral or written
statements related to the revolving line of credit or the terms of financing
and (iii) Borrower’s use of the revolving line of credit.
Upon the election by
you or us of arbitration, any Claim(s) will be resolved pursuant to this
arbitration provision and the applicable commercial rules and procedures
(collectively, the “Rules and Procedures”) of the American Arbitration
Association (“AAA”), who shall serve as the arbitration administrator,
in effect at the time the Claim(s) is/are filed.If for any reason the AAA is unable or
unwilling, or ceases, to serve as arbitration administrator, another
nationally recognized arbitration organization utilizing similar rules and
procedures will be substituted by us.
With respect to any Claims covered by this provision for which neither
party has elected arbitration for a particular Claim, a party who has
asserted a Claim in a lawsuit in court may still elect arbitration with
respect to any Claim subsequently asserted in that lawsuit by any other party
or parties. You may obtain copies of
the current rules, forms, and instructions for initiating an arbitration with
the AAA by contacting the AAA as follows: on the web at
www.adr.org
or b
y writing to AAA
at
1633Broadway, 10thFloor, New
York, N
Y 10019. This
provision expressly delegates all decisions regarding the enforceability
(including, but not limited to, challenges based on unconscionability, public
policy, vindication of rights, or otherwise) to the arbitrator.
IF ARBITRATION IS
CHOSEN BY ANY PARTY WITH RESPECT TO ANY CLAIM, NEITHER YOU NOR WE WILL HAVE
THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM,
OR TO ENGAGE IN PRE-ARBITRATION DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES
AND PROCEDURES OF THE AAA.
FURTHER,
YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF
ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION.
EXCEPT AS SET FORTH BELOW, THE ARBITRATOR’S DECISION WILL BE FINAL AND
BINDING. NOTE THAT OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY
ALSO NOT BE AVAILABLE IN ARBITRATION.
Notwithstanding
anything in this Agreement to the contrary, you and us agree not to invoke
the right to arbitrate any Claims you or us bring in small claims court or an
equivalent court so long as such Claim(s) is/are pending only in that court
and brought and maintained only on an individual basis by you or us. Moreover,
this arbitration provision does not limit or constrain our right to
interplead funds in the event of claims by several parties.This arbitration division does not limit
the right of Woodforest to (i)
foreclose against real or personal property collateral; (ii) exercise
self-help remedies relating to collateral or proceeds of collateral such as
setoff or repossession; or (iii) obtain provisional or ancillary remedies
such as replevin, injunctive relief, attachment or the appointment of a
receiver, before, during, or after the pendency of any arbitration
proceeding. This exclusion does not constitute a waiver of the right to
submit any dispute to arbitration hereunder, including those arising from the
exercise of the actions detailed in sections (i),
(ii) and (iii) of this paragraph.
There
will be no authority for any Claims to be arbitrated on a class action basis.
Any
arbitration hearing that you attend will take place in the county or federal
judicial district in which you reside, or by telephone, or at such other
reasonably convenient location as agreed by the parties. At the conclusion of
the arbitration, the arbitrator will decide who will ultimately be
responsible for paying the filing, administrative and/or hearing fees in
connection with the arbitration. Furthermore, at the conclusion of the
arbitration, the arbitrator shall be authorized to award the prevailing party
reasonable attorney’s fees, costs and expert witness fees from the
non-prevailing party; this remedy is cumulative of any substantive right to
recovery of such fees and costs afforded by relevant statute, regulation, or
case law, and does not limit or displace such rights.
This provision is made
pursuant to a transaction involving interstate commerce and will be governed
by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq., as
amended. The arbitrator will apply applicable substantive law consistent with
the FAA and applicable statutes of limitations and will honor claims of
privilege recognized at law. The arbitrator shall be empowered to grant
whatever relief would be available in court under law or in equity. Judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction. The arbitrator’s decision will be final and binding, except for
any right of appeal provided by the FAA and except that, if the amount in
controversy exceeds $100,000, any party can appeal the award to a
three-arbitrator panel administered by the AAA, which will reconsider de novo any aspect of the initial
award requested by the appealing party. The decision of the panel will be by
majority vote. The costs of such an appeal will be borne by the appealing
party regardless of the outcome of the appeal.
This provision will
survive termination of the revolving line of credit and/or this Agreement, as
well as the repayment of all Indebtedness incurred in connection with this
Agreement. If any portion of this provision is deemed invalid or
unenforceable under any law or statute consistent with the FAA, it will not
invalidate the remaining portions of this arbitration provision or the
Agreement; provided, however, if the limitations on class actions are struck
in a proceeding brought on a class basis, without impairing the right to
appeal such decision, this entire arbitration provision (other than this
proviso) shall be null and void in such proceeding.In the event of a conflict or inconsistency
between the Rules and Procedures of the AAA and this arbitration provision,
this provision will govern. If a third
party seeks to, or a court allows a third party to, represent either party on
a class basis with respect to any Claims, either party shall continue to have
the right to enforce individual arbitration of those Claims under this
Agreement.
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Ohio Equal
Credit Opportunity Notice: (Ohio Only)
The Ohio law against discrimination requires
that all creditors make credit equally available to all creditworthy customers,
and that credit reporting agencies maintain separate credit histories on each
individual request. The Ohio Civil Rights Commission administers
compliance with this law.