Exhibit 10.30
KANSAS ECONOMIC OPPORTUNITY INITIATIVES FUND Project #99-KEOIF-020
LOAN AGREEMENT and PROMISSORY NOTE
This Loan Agreement and Promissory Note (the Agreement), effective
April 21, 199 9 , is entered into between the following parties:
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Lender: Kansas Department of Commerce & Housing
Business Development Division
000 XX Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxx 00000-0000
Phone: (000) 000-0000; FAX: (000) 000-0000
Contact Person/Title: Xxxxx Xxxxx, Director, Business Development
Division
Borrower: Intek Information, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx XX 00000-0000
Phone: (000) 000-0000; FAX: (000) 000-0000
Contact Person/Title: Xxx Xxxxxxx, Senior VP Human Resources
FEIN: 00-0000000
WHEREAS, K.S.A. 74-50,131, et seq., as amended, establishes a Kansas
Economic Opportunity Initiatives Fund (the Fund); and
WHEREAS, it has been determined by the Secretary of Commerce & Housing (the
Secretary) that an economic emergency or unique opportunity exists which
warrants funding to secure economic benefits or avoid or remedy economic losses,
as defined in K.S.A. 74-50,131, et seq., as amended; and
WHEREAS, the Borrower has specified that this funding will assist in
offsetting costs associated with the development of a business facility at Fort
Xxxxx, Kansas; and
WHEREAS, the Governor has, by approval of the Secretary's recommendation,
authorized an expenditure of up to $400,000 from the Fund for the purpose of
making a loan to the Borrower under such terms and conditions as may be
prescribed by the Secretary;
NOW THEREFORE, in consideration of the mutual promises, covenants and
agreements, the parties agree as follows:
1) Loan Amount and Terms: Subject to the terms and conditions of the
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Agreement, the Lender hereby agrees to provide the Borrower with the principal
sum of up to four hundred thousand dollars (S400,000) for a sixty (60) month
period. Interest will accrue from the date of disbursement at the rate of zero
percent (0.0%) per annum on the unpaid balance. Should a default occur,
repayment of all principal and interest will be made immediately in accordance
with the provisions shown below. The Borrower shall have the right to prepay any
part or all of the unpaid principal and interest balance at any time without
penalty. This loan is not transferable.
2) Forgiveness of Debt: The Borrower promises to create and maintain minimum
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employment and payroll levels in each of five (5) years as shown in the
following schedule:
Year 1 Year 2 Year 3 Year 4 Year 5
Jobs 210 400 400 400 400
Payroll $3,941,340 $7,375,350 $7,563,075 $7,755,475 $7,952,700
Job figures reflect full-time equivalent (FTE) positions only. One FTE is equal
to 2080 hours earned per year, including vacation. Payroll is based on gross
earnings taxable to the individual employee. The start of Year 1 will coincide
with the final disbursement of these loan monies, but under no circumstance will
it begin later than 12 months after the initial disbursement of these loan
monies.
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At each scheduled anniversary, the outstanding principal balance will be divided
by the number of remaining anniversary dates. The resultant amount and all
interest accrued since the previous anniversary date will be forgiven if the
scheduled job and payroll commitments have been met. However, in the event the
facility is vacated during the term of this agreement, any principal and
interest which has been forgiven will be repaid in accordance with item (17)
below.
In the event of a technical default under this section, the Borrower has the
right of appeal, if compelling evidence can be presented demonstrating that the
default is the result of dramatic, unforeseen changes in economic or market
conditions. In the event of an appeal, the Secretary will have the sole
discretion to enforce the provisions as set forth in item (17) below.
3) Availability of Loan Funds: Disbursement of the loan proceeds from Lender
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to Borrower is made contingent upon the availability of funds appropriated for
and deposited in the Fund. Loan monies will be disbursed from the Fund on a
reimbursement basis when the Borrower submits to the Lender copies of invoices
generated by the Borrower's suppliers in connection with the project activities
outlined below. All disbursement requests must be made within eighteen (18)
months of the date of this agreement. Without prior written agreement by the
Secretary, funds not requested within this time-frame will be unencumbered and
unavailable to the project
4) Collateral: None is required under this Agreement.
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5) Mortgage/Security Agreement: Not applicable.
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6) Insurance: The Borrower agrees to provide and maintain at its own expense
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casualty and hazard insurance covering loss by fire or wind with extended
coverage insuring all of the real estate, buildings, fixtures and improvements
and all business machinery, equipment, furnishings and furniture at its Fort
Xxxxx, Kansas facility. Evidence of such coverage will be provided to the
Lender. The total amount of the insurance policy shall be sufficient to pay all
indebtedness to lien holders and other parties with an interest in this
property, and pay the Lender the entire outstanding principal balance and
accrued interest. The State of Kansas shall be named as a beneficiary on the
insurance policy.
7) Force Majeure: In the event that operations at the worksite are impaired
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or suspended due to uncontrollable forces of nature, the Borrower will be given
a reasonable period of time, as determined in the sole discretion of the
Secretary, in which to reestablish any lost jobs. The term of this agreement
will be extended by the length of this period, and no contractual penalty will
be imposed on the company during this period.
8) Release of Mortgage/Security Agreement: Not applicable.
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9) Life Insurance: Not applicable.
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10) Use of Funds: The monies from this loan shall be used by the Borrower to
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pay for costs related to offsetting costs associated with the development of a
business facility for the Borrower at Fort Xxxxx; Kansas.
Any machinery and equipment obtained using these KEOIF funds will be promptly
identified to the Lender, including narrative description and serial number, and
will remain in the Fort Xxxxx, Kansas facility for the duration of this
agreement. The Lender or its representative shall be afforded the right of
inspection of such machinery and equipment throughout the term of this
agreement.
11) Services Provided to Borrower: The Lender is not obligated to provide any
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services to the Borrower other than those specified in the Agreement.
12) Related Contracts: The Borrower shall provide copies of all contracts
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entered into by the Borrower for activities covered by the loan monies.
13) Period of Performance: The Borrower may be reimbursed with loan funds for
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expenses incurred prior to the date of this Agreement, if they were made in
connection with activities defined in item (10) above.
Activities will terminate when all conditions of the Agreement have been met
within any specified time frames, or by mutual consent of all parties to the
Agreement, or when a default situation arises, unless the Lender chooses not to
terminate the Agreement.
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14) Financial Management: Borrower shall keep accounting records in
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conformance with generally accepted accounting principles, and make such records
and all related reports, files, documents and other papers pertaining to the
funds provided under this Agreement available for audits, examinations and
monitoring if requested by Lender; such records will be retained for a period of
three (3) years after termination of the loan period or repayment of the debt in
full. The accounting system used by the Borrower shall clearly establish records
of budgets and expenditures for the activities funded with the loan monies.
15) Monitoring: A random audit, or audits, may be conducted by the Lender, or
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a designated representative of the Lender, to assure accountability of loan
expenditures and examine the status of any machinery and equipment acquired with
this KEOIF funding.
Following the period of performance, the Lender, or a designated representative
of the Lender, will conduct a final program audit of all loan expenditures and
the status of KEIOF-acquired machinery and equipment. At the Lender's option any
unauthorized or unaccountable expenditures may be subject to repayment by the
Borrower to the Lender. If deemed necessary by the Lender, an outside audit will
be conducted at the expense of the Borrower.
16) Waivers: The Borrower hereby waives presentment, demand of payment,
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protest, and any and all other notices and demands whatsoever. No waiver of any
payment or other right under this Agreement shall operate as a waiver of any
other payment or right.
17) Default: This Agreement shall be considered in default:
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(A) Upon any default or failure to properly perform under any clause in
this Agreement (or the provisions of any security agreement(s) or
mortgage documents which secure this Agreement).
(i) If, on the scheduled anniversary, job or payroll levels are
below the minimums specified in item (2) of this Agreement,
the following repayment is required within thirty (30) days:
a) job and payroll components will be weighted equally, so
that a blended percentage of overall job and payroll
accomplishment is determined; the outstanding principal
balance will be divided by the number of remaining
anniversary dates, with the resultant portion of the
principal balance multiplied by the inverse of the
blended percentage to produce the proportionate
principal amount due, plus
b) interest accrued since the previously scheduled
anniversary date will be multiplied by the inverse of
the blended percentage to produce the proportionate
amount of interest due.
(ii) If the Borrower vacates the Fort Xxxxx, Kansas facility during
the term of this Agreement, the following repayment is
required:
a) the entire outstanding principal amount is immediately
due and payable, plus
b) any principal and interest previously forgiven as
specified in item (2) above, plus
c) interest penalties equal to a twelve percent (12%)
compounded annual rate calculated for a 5 year period
against the highest outstanding principal amount over the
term of the loan.
(iii) Upon audit, any loan funds shown to have been used for other
than the intended purposes shall be repaid with interest
to Lender by Borrower. Such unintended purposes would
include, but not be limited to, the acquisition of
machinery and equipment which is not used at the Fort
Xxxxx, Kansas facility throughout the term of this loan.
The amount to be repaid shall be such principal plus
twenty-five percent (25%) compounding interest accrued
from the date of the initial draw-down against this loan.
(iv) If the Borrower otherwise defaults in any manner on the
obligations set forth in this Agreement, the following
repayment is required:
a) any principal balance outstanding on the loan is due
and payable; and
b) interest penalties equal to a twelve percent (12%)
compounded annual rate calculated against the principal
balance for the period during which it has been
outstanding.
(B) Upon any occurrence under this Agreement or security agreements or
mortgage documents by which this loan may or shall become due and
payable.
(C) At any time that the Lender determines in good faith that the
prospect of any payment required by this note is impaired.
In the event of continued default following a fifteen (15) day written notice of
default, the Lender may, at its option, declare all unpaid indebtedness
evidenced by this Agreement and any modifications thereof, immediately due and
payable, without further notice, regardless of date of maturity. The Lender's
failure to exercise this option when available at any point in time shall in no
way invalidate its right to exercise the option in future default situations.
Should it become necessary to collect the monetary obligations of this Agreement
through an attorney, the Borrower agrees to pay all costs of collecting these
monies, including reasonable attorneys' fees to the extent permitted by law,
whether collected by suit, foreclosure, or otherwise.
INTEK.DOC 3
18) Indemnification: The Borrower shall indemnify, defend, and hold harmless
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the State, the County, and the City and their respective officers and employees
from any liabilities, claims, suits, judgments, and damages arising as a result
of the performance of the obligations under this Agreement by the Borrower or
any party in a relationship with the Borrower which is a result of this
Agreement. The liability of the Borrower under this Agreement shall continue
after the termination of the Agreement with respect to any liabilities, claims,
suits, judgments and damages resulting from acts occurring prior to the
termination of this Agreement.
19) Other Requirements: The Borrower will provide to the Secretary, on an
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annual basis and for a period of five (5) years after completion of the term, a
report for the Borrower's Fort Xxxxx, Kansas facility which lists the number of
full-time equivalent employees, the total payroll as defined in item (2) of this
Agreement, and a record of capital investment for the most recent report period
and accumulated since the beginning of the report periods. The Borrower will
also provide its current gross annual sales, and gross annual sales each year
for the duration of this agreement. The first report will coincide with the
first anniversary date as defined in item (2) of this Agreement.
20) Amendments: Changes to this Agreement will not be effective or binding
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unless in writing and signed by both parties to the Agreement.
21) Contractual Provisions Attachment: The provisions found in Contractual
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Provisions Attachment (form DA-146a), which is attached hereto, are hereby
incorporated in this contract and made a part thereof
22) Compliance with the Law: The Borrower agrees to operate its Fort Xxxxx,
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Kansas facility in full compliance with applicable federal, state and local laws
without limitation.
23) Authorization to Contract: Before or at the time of execution of the
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Agreement, the Borrower must be able to provide evidence that it is duly
incorporated, in good standing in the state of its incorporation, authorized to
do business in the State of Kansas, and authorized to borrow money; and evidence
shall be provided that the person executing the Agreement and any supporting
documents is authorized to act on behalf of the Borrower in such a transaction.
24) Termination of Agreement: Lender may terminate the loan, in whole or in
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part, if the Borrower has failed to comply with the conditions of the Agreement.
The Borrower will receive written notice and the reasons for termination.
25) Divisibility: The invalidity of any one or more phrases, sentences,
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clauses, or section contained in this Agreement shall not affect the remaining
portions of this Agreement, or any part thereof. Further, various headings
included in this Agreement exist purely as an aid to locate particular wording,
and do not in and of themselves in any way affect the substance of this
Agreement.
26) Complete Document: The parties agree this Agreement is a complete
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document in which all obligations have been reduced to writing, and there are no
understandings, agreements, conventions or covenants not included herein.
27) Assignment: The parties further agree that this Agreement may not be
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assigned by the Borrower without prior written approval by the Lender.
28) Binding Effect: The provisions of this Agreement shall both bind and
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benefit the Borrower's successors, assigns, guarantors, endorsers, and any other
person or entity now or hereafter liable hereon.
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IN WITNESS WHEREOF, the parties have signed their names below.
/s/ Xxxx Xxxxxxx 4/21/99
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Xxxx Xxxxxxx, Lt. Governor/ Secretary Date
Notary:
[Seal of Notary Public - State of Kansas
XXXXX X X XXXXXXX /s/ Xxxxx X X Xxxxxxx 4/21/99
My Appt. Exp. 8/26/01]
Intek Information, Inc.
By: /s/ Xxxxxxx X. X'Xxxxxxx April 13, 1999
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Signature Date
Xxxxxxx X. X'Xxxxxxx
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Print Name
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Title
Notary:
STATE OF COLORADO )
)ss:
CITY AND COUNTY OF DENVER )
On this 13th day of April, 1999, before me, a Notary Public, appeared Xxxxxxx X.
X'Xxxxxxx, known personally to me to be the Chief Executive Officer and
President of Intek Information, Inc. and acknowledged that he, as an officer
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as an
officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal.
[SEAL]
/s/ Xxxxxxx X. Xxxx, Notary Public
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Xxxxxxx X. Xxxx, Notary Public
My Commission Expires: March 8, 2003
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State of Kansas Agency No. 300 Contract No.99-KEDIF-020
Department of Administration
Division of Accounts and Reports
DA-146a (Rev. 9-93)
CONTRACTUAL PROVISIONS ATTACHMENT
Important: This form contains mandatory contract provisions and must be
attached to or incorporated in all copies of any contractual
agreement. If it is attached to the vendor/ contractor's standard
contract form, then that form must be altered to contain the
following provision:
"The provisions found in Contractual Provisions Attachment (form DA-
146a), which is attached hereto, are hereby incorporated in this
contract and made a part hereof".
The parties agree that the following provisions are hereby incorporated into the
contract to which it is attached and made a part thereof, said contract being
the__ day of , 19__.
1. TERMS HEREIN CONTROLLING PROVISIONS
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It is expressly agreed that the terms of each and every provision in this
attachment shall prevail and control over the terms of any other conflicting
provision in any other document relating to and a part of the contract in
which this attachment is incorporated.
2. AGREEMENT WITH KANSAS LAW
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All contractual agreements shall be subject to, governed by, and construed
according to the laws of the State of Kansas.
3. TERMINATION DUE TO LACK OF FUNDING APPROPRIATION
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If, in the judgment of the Director of Accounts and Reports, Department of
Administration, sufficient funds are not appropriated to continue the
function performed in this agreement and for the payment of the charges
hereunder, State may terminate this agreement at the end of its current
fiscal year. State agrees to give written notice of termination to contractor
at least 30 days prior to the end of its current fiscal year, and shall give
such notice for a greater period prior to the end of such fiscal year as may
be provided in this contract, except that such notice shall not be required
prior to 90 days before the end of such fiscal year. Contractor shall have
the right at the end of such fiscal year, to take possession of any equipment
provided State under the contract. State will pay to the contractor all
regular contractual payments incurred through the end of such fiscal year,
plus contractual charges incidental to the return of any such equipment. Upon
termination of the agreement by State, title to any such equipment shall
revert to contractor at the end of State's current fiscal year. The
termination of the contract pursuant to this paragraph shall not cause any
penalty to be charged to the agency or the contractor.
4. DISCLAIMER OF LIABILITY
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Neither the State of Kansas nor any agency thereof shall hold harmless or
indemnify any contractor beyond that liability incurred under the Kansas Tort
Claims Act (K.S.A. 75-6101 et seq.).
5. ANTI-DISCRIMINATION CLAUSE
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The contractor agrees: (a) to comply with the Kansas Act Against
Discrimination (K.S.A. 44-1001 et seq.) and the Kansas Age Discrimination in
Employment Act (K.S.A. 44-1111 et M.) and the applicable provisions of the
Americans With Disabilities Act (42 U.S.C. 12101 et seq.) (ADA) and to not
discriminate against any person because of race, religion, color, sex,
disability national origin or ancestry, or age in the admission or access to,
or treatment or employment in, its programs or activities; (b) to include in
all solicitations or advertisements for employees, the phrase "equal
opportunity employer"; (c) to comply with the reporting requirements set out
at K.S.A. 44-1031 and K.S.A. 44-1116; (d) to include those provisions in
every subcontract or purchase order so that they are binding upon such
subcontractor or vendor, (e) that a failure to comply with the reporting
requirements of (c) above or if the contractor is found guilty of any
violation of such acts by the Kansas Human Rights Commission, such violation
shall constitute a breach of contract and the contract may be canceled,
terminated or suspended, in whole or in part, by the contracting state agency
or the Kansas Department of Administration; (0 if it is determined that the
contractor has violated applicable provisions of the ADA, such violation
shall constitute a breach of contract and the contract may be canceled,
terminated or suspended, in whole or in part, by the contracting state agency
or the Kansas Department of Administration.
Parties to this contract understand that the provisions of this paragraph
number 5 (with the exception of those provisions relating to the ADA) are not
applicable to a contractor who employs fewer than four employees during the
term of such contract or whose contracts with the contracting state agency
cumulatively total $5,000 or less during the fiscal year of such agency.
6. ACCEPTANCE OF CONTRACT
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This contract shall not be considered accepted, approved or otherwise
effective until the statutorily required approvals and certifications have
been given.
7. ARBITRATION, DAMAGES, WARRANTIES
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Notwithstanding any language to the contrary, no interpretation shall be
allowed to find the State or any agency thereof has agreed to binding
arbitration, or the payment of damages or penalties upon the occurrence of a
contingency. Further, the State of Kansas shall not agree to pay attorney
fees and late payment charges beyond those available under the Kansas Prompt
Payment Act (K.S.A. 75-6403), and no provision will be given effect which
attempts to exclude, modify, disclaim or otherwise attempt to limit implied
warranties of merchantability and fitness for a particular purpose.
8. REPRESENTATIVE'S AUTHORITY TO CONTRACT
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By signing this document, the representative of the contractor thereby
represents that such person is duly authorized by the contractor to execute
this document on behalf of the contractor and that the contractor agrees to
be bound by the provisions thereof.
9. RESPONSIBILITY FOR TAXES
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The State of Kansas shall not be responsible for, nor indemnify a contractor
for, any federal, state or local taxes which may be imposed or levied upon
the subject matter of this contract.
00.XXXXXXXXX
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The State of Kansas shall not be required to purchase, any insurance against
loss or damage to any personal property to which this contract relates, nor
shall this contract require the State to establish a *self-insurance" fund to
protect against any such loss or damage. Subject to the provisions of the
Kansas Tort Claims Act (KS.A. 75-6101 et M.), the vendor or lessor shall bear
the risk of any loss or damage to any personal property in which vendor or
lessor holds title.
11.INFORMATION
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No provisions of this contract shall be construed as limiting the Legislative
Division of Post Audit from having access to information pursuant to K.S.A.
46-1101 et seq.
