1
EXHIBIT 10.43
[BANK ONE LOGO]
CHANGE IN TERMS AGREEMENT
------------------------------------------------------------------------------------------------------------------------
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
------------------------------------------------------------------------------------------------------------------------
$4,500,000.00 09-15-1995 42 7979623550 410
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: SCIENTIFIC SOFTWARE - INTERCOMP, INC., A Lender: BANK ONE, COLORADO, N.A.
COLORADO CORPORATION DOWNTOWN BOULDER BANKING CENTER
0000 XXXXXXXXXX XX. XXX 000 0000 XXXXX XXXXXXXX XXXX.
XXXXXX, XX 00000-0000 XXXXXX, XX 00000
========================================================================================================================
PRINCIPAL AMOUNT: $4,500,000.00 DATE OF AGREEMENT: AUGUST 15, 1995
DESCRIPTION OF EXISTING INDEBTEDNESS. A PROMISSORY NOTE DATED SEPTEMBER 20,
1994 IN THE ORIGINAL PRINCIPAL AMOUNT OF $5,000,000.00.
DESCRIPTION OF CHANGE IN TERMS: THE MATURITY DATE WILL NOW BE SEPTEMBER 15,
1995. SEE BELOW FOR NEW PAYMENT SCHEDULE. THIS REVOLVING LINE OF CREDIT IS
HEREBY CAPPED AT $4,500,000.00.
PROMISE TO PAY. SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
("BORROWER") PROMISES TO PAY TO BANK ONE, COLORADO, N.A. ("LENDER"), OR ORDER,
IN LAWFUL MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF FOUR
MILLION FIVE HUNDRED THOUSAND & 00/100 DOLLARS ($4,500,000.00) OR SO MUCH AS
MAY BE OUTSTANDING, TOGETHER WITH INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL
BALANCE OF EACH ADVANCE. INTEREST SHALL BE CALCULATED FROM THE DATE OF EACH
ADVANCE UNTIL REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING
PRINCIPAL PLUS ALL ACCRUED UNPAID INTEREST ON SEPTEMBER 15, 1995. Interest on
this Agreement is computed on a 365/360 simple interest basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay Lender
at Lender's address shown above or at such other place as Lender may designate
in writing. 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.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to
change from time to time based on changes in an index which is the LENDER'S
PRIME RATE (the "Index"). PRIME RATE IS THE LENDER'S BASE LENDING RATE AS
ANNOUNCED BY THE LENDER FROM TIME TO TIME AT ITS SOLE DISCRETION. AT ANY GIVEN
TIME, THE LENDER MAY MAKE LOANS AT, ABOVE, OR BELOW ITS PRIME RATE. Lender will
tell Borrower the current Index rate upon Borrower's request. Borrower
understands that Lender may make loans based on other rates as well. The
interest rate change will not occur more often than each DAY. THE INDEX
CURRENTLY IS 8.750% PER ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID
PRINCIPAL BALANCE OF THIS AGREEMENT WILL BE AT A RATE OF 1.500 PERCENTAGE
POINTS OVER THE INDEX, RESULTING IN AN INITIAL RATE OF 10.250% PER ANNUM.
NOTICE: Under no circumstances will the interest rate on this Note be more than
the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. Borrower agrees that all loan fees and
other prepaid finance charges are earned fully as of the date of the loan and
will not be subject to refund upon early payment (whether voluntary or as a
result of default), except as otherwise required by law. In any event, even
upon full prepayment of this Agreement, Borrower understands that Lender is
entitled to a MINIMUM INTEREST CHARGE OF $25.00. Other than Borrower's
obligation to pay any minimum interest charge, Borrower may pay without penalty
all or a portion of the amount owed earlier than it is due.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform
when due any other term, obligation, covenant, or condition contained in this
Agreement or any agreement related to this Agreement, or in any other agreement
or loan Borrower has with Lender. (c) Borrower defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of Borrower's property or Borrower's ability to repay this Note or
perform Borrower's obligations under this Note or any of the Related Documents.
(d) Any representation or statement made or furnished to Lender by Borrower or
on Borrower's behalf is false or misleading in any material respect either now
or at the time made or furnished. (e) Borrower becomes insolvent, a receiver is
appointed for any part of Borrower's property, Borrower makes an assignment for
the benefit of creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (f) Any creditor
tries to take any of Borrower's property on or in which Lender has a lien or
security interest. This includes a garnishment of any of Borrower's accounts
with Lender. (g) Any of the events described in this default section occurs
with respect to any guarantor of this Agreement. (h) A material adverse change
occurs in Borrower's financial condition, or Lender believes the prospect of
payment or performance of the indebtedness is impaired.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Agreement and all accrued unpaid interest immediately due,
without notice, and then Borrower will pay that amount. Upon default, including
failure to pay upon final maturity, Lender, at its option, may also, if
permitted under applicable law, do one or both of the following: (a) increase
the variable interest rate on this Agreement to 25.000% per annum, and (b) add
any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Note (including any increased
rate). The interest rate will not exceed the maximum rate permitted by
applicable law. Lender may hire or pay someone else to help collect this
Agreement if Borrower does not pay. Borrower also will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender's attorneys'
fees and Lender's legal expenses whether or not there is a lawsuit, including
attorney's fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgement collection services. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums
provided by law. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY
LENDER IN THE STATE OF COLORADO. IF THERE IS A LAWSUIT, BORROWER AGREES UPON
LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE COURTS OF BOULDER COUNTY,
THE STATE OF COLORADO. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY
TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR
BORROWER AGAINST THE OTHER. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all XXX, Xxxxx, and trust
accounts. Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on this Agreement against any and all
such accounts.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement, as well as directions for payment from Borrower's
accounts, may be requested orally or in writing by Borrower or by an authorized
person. Lender may, but need not, require that all oral requests be confirmed
in writing. Borrower agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person or (b) credited to any
of Borrower's accounts with Lender. The unpaid principal balance owing on this
Agreement at any time may be evidenced by endorsements on this Agreement or by
Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Agreement if: (a) Borrower or
any guarantor is in default under the terms of this Agreement or any agreement
that Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Agreement; (b) Borrower or any guarantor
ceases doing business or is insolvent; (c) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of
this Agreement or any other loan with Lender; or (d) Borrower has applied funds
provided pursuant to this Agreement for purposes other than those authorized by
Lender.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms
of the original obligation or obligations, including all agreements evidenced
or securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender to retain as
liable parties all makers and endorsers of the original obligation(s),
including accommodation parties, unless a party is expressly released by Lender
in writing. Any maker or endorser, including accommodation makers, will not be
released by virtue of this Agreement. If any person who signed the original
obligation does not sign this Agreement below, then all persons signing below
acknowledge that this Agreement is given conditionally, based on the
representation to Lender that the non-signing party consents to the changes and
provisions of this Agreement or otherwise will not be released by it. This
waiver applies not only to any initial extension, modification or release, but
also to all such subsequent actions.
2
PAGE 2
08-15-1995 CHANGE IN TERMS AGREEMENT
LOAN NO 42 (CONTINUED)
================================================================================
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any other
person who signs, guarantees or endorses this Agreement, to the extent allowed
by law, waive presentment, demand for payment, protest and notice of dishonor.
Upon any change in the terms of this Agreement, and unless otherwise expressly
stated in writing, no party who signs this Agreement, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability.
All such parties agree that Lender may renew or extend (repeatedly and for any
length of time) this loan, or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the
party with whom the modification is made.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE AGREEMENT AND ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THE AGREEMENT.
BORROWER:
SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
BY: /s/ XXXXXX X. XXXXXXX
------------------------------
XXXXXX X. XXXXXXX, SECRETARY
================================================================================
Variable Rate. Line of Credit.
3
[BANK ONE LOGO]
DISBURSEMENT REQUEST AND AUTHORIZATION
------------------------------------------------------------------------------------------------------------------------
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
------------------------------------------------------------------------------------------------------------------------
$4,500,000.00 09-15-1995 42 7979623550 410
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item.
------------------------------------------------------------------------------------------------------------------------
BORROWER: SCIENTIFIC SOFTWARE - INTERCOMP, INC., A LENDER: BANK ONE, COLORADO, N.A.
COLORADO CORPORATION DOWNTOWN BOULDER BANKING CENTER
0000 XXXXXXXXXX XXXXXX, XXX 000 0000 XXXXX XXXXXXXX XXXX.
XXXXXX, XX 00000-0000 XXXXXX, XX 00000
========================================================================================================================
LOAN TYPE. This is a Variable Rate (1.500% over LENDER'S PRIME RATE, making an
initial rate of 10.250%), Revolving Line of Credit Loan to a Corporation for
$4,500,000.00 due on SEPTEMBER 15, 1995.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
[ ] PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR PERSONAL
INVESTMENT.
[X] BUSINESS (INCLUDING REAL ESTATE INVESTMENT).
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $4,500,000.00 as follows:
AMOUNT PAID TO OTHERS ON BORROWERS BEHALF: $4,500,000.00
$4,500,000.00 to EXTEND 505-7979623550-42
-------------
NOTE PRINCIPAL: $4,500,000.00
CHANGES PAID IN CASH. Borrower has paid or will pay in cash as agreed the
following charges:
PREPAID FINANCE CHARGES PAID IN CASH: $23,000.00
$23,000.00 LOAN FEE
----------
TOTAL CHARGES PAID IN CASH: $23,000.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL
CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER.
THIS AUTHORIZATION IS DATED AUGUST 15, 1995.
BORROWER:
SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
BY:
---------------------------------
XXXXXX X. XXXXXXX, SECRETARY
================================================================================
Variable Rate. Line of Credit
4
AMENDMENT TO BUSINESS LOAN AGREEMENT
BUSINESS LOAN AGREEMENT dated September 10, 1994 between SCIENTIFIC
SOFTWARE-INTERCOMP, INC., A COLORADO CORPORATION ("Borrower") and BANK ONE,
BOULDER, N.A., now known as BANK ONE, COLORADO, N.A., ("Lender"), is herewith
amended as follows:
1. Reference is made to Paragraph entitled "BORROWING BASE" on Page 1 of
said Business Loan Agreement. Sub- paragraph (1) is changed to read as
follows:
(1) $633,000.00 or 75% of Borrower's eligible accounts
receivable (i.e., not more than ninety (90) days after the
customer's acceptance nor more than 150 days after invoice or
shipment, whichever occurs earlier), as calculated on a
monthly Borrowing Base Certificate in the form attached as
Exhibit "A" delivered to Lender within 30 days after month
end.
2. Reference is made to Paragraph entitled "Eligible Accounts" on Page 1
of said Business Loan Agreement. The sentence which now reads:
The words "Eligible Domestic Accounts" mean, at any time, only
those insured by credit insurance acceptance to bank.
is changed to read:
The words "Eligible Domestic Accounts" mean, at any time,
those accounts originating from sales within the United
States.
3. Reference is made to Paragraph entitled "Making Loan Advances" on Page
3 of said Business Loan Agreement. The following sentence is herewith
added:
Advances under the credit facility are restricted solely to the
export revolving line of credit guaranteed by the
Export-Import Bank of the U.S.
4. Reference is made to Paragraph entitled "FINANCIAL COVENANTS AND
RATIOS" on Page 5 of said Business Loan Agreement. Sub-paragraph
entitled "Tangible Net Worth" is changed to read as follows:
TANGIBLE NET WORTH. Maintain a minimum Tangible Net Worth of
not less than $8,000,000.00 through December 30, 1995 and not
less than $9,500,000.00 at December 31, 1995 and thereafter.
5. Reference is made to Paragraph entitled "NEGATIVE COVENANTS" on Page 6
of said Business Loan Agreement. Sub-paragraph entitled "Capital
Expenditures" is changed to read as follows:
CAPITAL EXPENDITURES. Make or contract to make capital
expenditures, including leasehold improvements, in excess of
$500,000.00 during fiscal year 1995.
All other terms and conditions of said Business Loan Agreement remain the same.
Executed this 15th day of August, 1995.
BORROWER:
SCIENTIFIC SOFTWARE-INTERCOMP, INC.
by: /s/ XXXXXX X. XXXXXXX
----------------------------------------------
Xxxxxx X. Xxxxxxx, Vice President/Secretary
LENDER:
BANK ONE, COLORADO, N.A.
by: /s/ XXXX X. XXXX
----------------------------------------------
Xxxx X. Xxxx, Assistant Vice President
5
(Exhibit A)
BORROWING BASE CERTIFICATE
and
CERTIFICATE OF COMPLIANCE
of
SCIENTIFIC SOFTWARE-INTERCOMP, INC.
("Borrower")
As of the Period Ending _______________
The undersigned hereby certifies to Bank that the following financial
information has been taken from Borrower's books and records which are complete
and accurate and the following calculations of the Borrowing Base aging of
accounts receivable are true and correct:
A. EXPORT LINE BORROWING BASE
Total Foreign Accounts Receivable
----------------
Less A/R Greater than 150 days from invoice ( )
----------------
Less Uninsured Foreign A/R ( )
----------------
Less Other ( )
----------------
-----------------
Borrower-Credit Insured (Less than 150 days)
----------------
Borrower-L/C Backed
----------------
Borrower-Int'l Fin. Inst. Account
----------------
SSI-UK-Credit Insured (Less than 150 days)
----------------
SSI-UK-L/C Backed
----------------
SSI-UK-Int'l Fin. Inst. Account
----------------
-----------------
@90% =
AVAILABLE BORROWING BASE
-----------------
Less Export Line Outstandings ( )
----------------
Less Export USD L/C's ( )
----------------
Less For. Currency L/C's (+20%) ( )
----------------
EXCESS/DEFICIT BORROWING BASE
-----------------
B. DOMESTIC LINE BORROWING BASE
Total Domestic Accounts Receivable
----------------
Less A/R over 150 days from invoice ( )
----------------
Less Other ( )
----------------
-----------------
@75% =
AVAILABLE BORROWING BASE
-----------------
Less Domestic L/C's ( )
----------------
EXCESS/DEFICIT BORROWING BASE
-----------------
6
(Exhibit A)
FINANCIAL COVENANT COMPLIANCE
Covenant Required Actual
-------- -------- ------
1) Current Ratio Greater than 1.3:1
--------
2) Leverage Ratio Less than 1.75:1
--------
3) Tangible Net Worth Greater than $8,000,000
through 12/30/95
--------
Greater than $9,500,000
at 12/31/95 & thereafter
--------
4) Positive Cash Flow Positive each fiscal half
--------
5) Capital Expenditures Less than $500,000 during FY95
--------
The undersigned further certifies that (a) Borrower is in compliance with all
covenants contained in the Loan Agreement dated September 10, 1994 and
amendments thereof, and (b) there has been no Event of Default under the Loan
Agreement which has not been cured or waived, and no potential Default has
occurred.
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
7
[BANK ONE LOGO]
CHANGE IN TERMS AGREEMENT
------------------------------------------------------------------------------------------------------------------------
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
------------------------------------------------------------------------------------------------------------------------
$633,000.00 09-15-1995 26 7979623550 410
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item.
------------------------------------------------------------------------------------------------------------------------
BORROWER: SCIENTIFIC SOFTWARE - INTERCOMP, INC., A LENDER: BANK ONE, COLORADO, N.A.
COLORADO CORPORATION DOWNTOWN BOULDER BANKING CENTER
0000 XXXXXXXXXX XX. XXX 000 0000 XXXXX XXXXXXXX XXXX.
XXXXXX, XX 00000-0000 XXXXXX, XX 00000
========================================================================================================================
PRINCIPAL AMOUNT: $633,000.00 DATE OF AGREEMENT: AUGUST 15, 1995
DESCRIPTION OF EXISTING INDEBTEDNESS. A PROMISSORY NOTE DATED SEPTEMBER 20,
1994 IN THE ORIGINAL PRINCIPAL AMOUNT OF $1,500,000.00.
DESCRIPTION OF CHANGE IN TERMS. THE MATURITY DATE WILL NOW BE SEPTEMBER 15,
1995. SEE BELOW FOR NEW PAYMENT SCHEDULE. THIS REVOLVING LINE OF CREDIT IS
HEREBY CAPPED AT $633,000.00.
PROMISE TO PAY. SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
("Borrower") promises to pay to BANK ONE, COLORADO, N.A. ("LENDER"), OR ORDER,
IN LAWFUL MONEY OF THE UNITED STATES OF AMERICA, THE PRINCIPAL AMOUNT OF SIX
HUNDRED THIRTY THREE THOUSAND & 00/100 DOLLARS ($633,000.00) OR SO MUCH AS MAY
BE OUTSTANDING, TOGETHER WITH INTEREST ON THE UNPAID OUTSTANDING PRINCIPAL
BALANCE OF EACH ADVANCE. INTEREST SHALL BE CALCULATED FROM THE DATE OF EACH
ADVANCE UNTIL REPAYMENT OF EACH ADVANCE.
PAYMENT. BORROWER WILL PAY THIS LOAN IN ONE PAYMENT OF ALL OUTSTANDING
PRINCIPAL PLUS ALL ACCRUED UNPAID INTEREST ON AUGUST 15, 1995. Interest on this
Agreement is computed on a 365/360 simple interest basis; that is, by applying
the ratio of the annual interest rate over a year of 360 days, multiplied by
the outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at Lender's address
shown above or at such other place as Lender may designate in writing. 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.
VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to
change from time to time based on changes in an index which is the LENDER'S
PRIME RATE (the "Index"). PRIME RATE IS THE LENDER'S BASE LENDING RATE AS
ANNOUNCED BY THE LENDER FROM TIME TO TIME AT ITS SOLE DISCRETION. AT ANY GIVEN
TIME, THE LENDER MAY MAKE LOANS, AT, ABOVE, OR BELOW ITS PRIME RATE. Lender will
tell Borrower the current Index rate upon Borrower's request. Borrower
understands that Lender may make loans based on other rates as well. The
interest rate change will not occur more often than each DAY. THE INDEX
CURRENTLY IS 8.750% PER ANNUM. THE INTEREST RATE TO BE APPLIED TO THE UNPAID
PRINCIPAL BALANCE OF THIS AGREEMENT WILL BE AT A RATE OF 2.500 PERCENTAGE
POINTS OVER THE INDEX, RESULTING IN AN INITIAL RATE OF 11.250% PER ANNUM.
NOTICE: Under no circumstances will the interest rate on this Agreement be
more than the maximum rate allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. In any event, even upon full prepayment of
this Agreement, Borrower understands that Lender is entitled to a MINIMUM
INTEREST CHARGE OF $25.00. Other than Borrower's obligation to pay any minimum
interest charge, Borrower may pay without penalty all or a portion of the amount
owed earlier than it is due.
DEFAULT. Borrower will be in default if any of the following happens: (a)
Borrower fails to make any payment when due. (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due any other term, obligation, covenant, or condition contained in this
Agreement or any agreement related to this Agreement, or in any other agreement
of loan Borrower has with Lender. (c) Borrower defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of Borrower's property or Borrower's ability to repay this Note or
perform Borrower's obligations under this Note or any of the Related Documents.
(d) Any representation or statement made or furnished to Lender by Borrower or
on Borrower's behalf is false or misleading in any material respect either now
or at the time made or furnished. (e) Borrower becomes insolvent, a receiver is
appointed for any part of Borrower's property, Borrower makes an assignment for
the benefit of creditors, or any proceeding is commenced either by Borrower or
against Borrower under any bankruptcy or insolvency laws. (f) Any creditor tries
to take any of Borrower's property on or in which Lender has a lien or security
interest. This includes a garnishment of any of Borrower's accounts with Lender.
(g) Any of the events described in this default section occurs with respect to
any guarantor of this Agreement. (h) A material adverse change occurs in
Borrower's financial condition, or Lender believes the prospect of payment or
performance of the indebtedness is impaired.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Agreement and all accrued unpaid interest immediately due,
without notice, and then Borrower will pay that amount. Upon default, including
failure to pay upon final maturity, Lender, at its option, may also, if
permitted under applicable law, do one or both of the following: (a) increase
the variable interest rate on this Agreement to 25.000% per annum, and (b) add
any unpaid accrued interest to principal and such sum will bear interest
therefrom until paid at the rate provided in this Agreement (including any
increased rate). The interest rate will not exceed the maximum rate permitted by
applicable law. Lender may hire or pay someone else to help collect this
Agreement if Borrower does not pay. Borrower also will pay Lender that amount.
This includes, subject to any limits under applicable law, Lender's attorneys'
fees and Lender's legal expenses whether or not there is a lawsuit, including
attorney's fees and legal expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgement collection services. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums
provided by law. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY
LENDER IN THE STATE OF COLORADO. IF THERE IS A LAWSUIT, BORROWER AGREES UPON
LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE COURTS OF BOULDER COUNTY,
THE STATE OF COLORADO. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY
TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR
BORROWER AGAINST THE OTHER. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all XXX, Xxxxx, and trust
accounts. Borrower authorizes Lender, to the extent permitted by applicable
law, to charge or setoff all sums owing on this Agreement against any and all
such accounts.
LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances
under this Agreement, as well as directions for payment from Borrower's
accounts, may be requested orally or in writing by Borrower or by an authorized
person. Lender may, but need not, require that all oral requests be confirmed
in writing. Borrower agrees to be liable for all sums either: (a) advanced in
accordance with the instructions of an authorized person or (b) credited to any
of Borrower's accounts with Lender. The unpaid principal balance owing on this
Agreement at any time may be evidenced by endorsements on this Note or by
Lender's internal records, including daily computer print-outs. Lender will
have no obligation to advance funds under this Agreement if: (a) Borrower or
any guarantor is in default under the terms of this Agreement or any agreement
that Borrower or any guarantor has with Lender, including any agreement made in
connection with the signing of this Agreement; (b) Borrower or any guarantor
ceases doing business or is insolvent; (c) any guarantor seeks, claims or
otherwise attempts to limit, modify or revoke such guarantor's guarantee of
this Agreement or any other loan with Lender; or (d) Borrower has applied funds
provided pursuant to this Agreement for purposes other than those authorized by
Lender.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms
of the original obligation or obligations, including all agreements evidenced
or securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a
satisfaction of the obligation(s). It is the intention of Lender to retain as
liable parties all makers and endorsers of the original obligation(s),
including accommodation parties, unless a party is expressly released by Lender
in writing. Any maker or endorser, including accommodation makers, will not be
released by virtue of this Agreement. If any person who signed the original
obligation does not sign this Agreement below, then all persons signing below
acknowledge that this Agreement is given conditionally, based on the
representation to Lender that the non-signing party consents to the changes and
provisions of this Agreement or otherwise will not be released by it. This
waiver applies not only to any initial extension, modification or release, but
also to all such subsequent actions.
8
PAGE 2
08-15-1995 CHANGE IN TERMS AGREEMENT
LOAN NO 26 (CONTINUED)
================================================================================
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any other
person who signs, guarantees or endorses this Agreement, to the extent allowed
by law, waive presentment, demand for payment, protest and notice of dishonor.
Upon any change in the terms of this Agreement, and unless otherwise expressly
stated in writing, no party who signs this Agreement, whether as maker,
guarantor, accommodation maker or endorser, shall be released from liability.
All such parties agree that Lender may renew or extend (repeatedly and for any
length of time) this loan, or release any party or guarantor or collateral; or
impair, fail to realize upon or perfect Lender's security interest in the
collateral; and take any other action deemed necessary by Lender without the
consent of or notice to anyone. All such parties also agree that Lender may
modify this loan without the consent of or notice to anyone other than the
party with whom the modification is made.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE AGREEMENT AND ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THE AGREEMENT.
BORROWER:
SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
BY: /s/ XXXXXX X. XXXXXXX
----------------------------
XXXXXX X. XXXXXXX, SECRETARY
================================================================================
Variable Rate. Line of Credit.
9
[BANK ONE LOGO]
DISBURSEMENT REQUEST AND AUTHORIZATION
------------------------------------------------------------------------------------------------------------------------
PRINCIPAL LOAN DATE MATURITY LOAN NO. CALL COLLATERAL ACCOUNT OFFICER INITIALS
------------------------------------------------------------------------------------------------------------------------
$633,000.00 09-15-1995 26 7979623550 410
------------------------------------------------------------------------------------------------------------------------
References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item.
------------------------------------------------------------------------------------------------------------------------
Borrower: SCIENTIFIC SOFTWARE - INTERCOMP, INC., A LENDER: BANK ONE, COLORADO, N.A.
COLORADO CORPORATION DOWNTOWN BOULDER BANKING CENTER
0000 XXXXXXXXXX XXXXXX, XXX 000 0000 XXXXX XXXXXXXX XXXX.
XXXXXX, XX 00000-0000 XXXXXX, XX 00000
========================================================================================================================
LOAN TYPE. This is a Variable Rate (2.500% over LENDER'S PRIME RATE, making an
initial rate of 11.250%), Revolving Line of Credit Loan to a Corporation for
$633,000.00 due on September 15, 1995.
PRIMARY PURPOSE OF LOAN. The primary purpose of this loan is for:
[ ] PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES OR PERSONAL
INVESTMENT.
[X] BUSINESS (INCLUDING REAL ESTATE INVESTMENT).
DISBURSEMENT INSTRUCTIONS. Borrower understands that no loan proceeds will be
disbursed until all of Lender's conditions for making the loan have been
satisfied. Please disburse the loan proceeds of $633,000.00 as follows:
AMOUNT PAID TO OTHERS ON BORROWER'S BEHALF: $633,000.00
$633,000.00 to EXTEND 505-7979623550-26
-----------
NOTE PRINCIPAL: $633,000.00
FINANCIAL CONDITION. BY SIGNING THIS AUTHORIZATION, BORROWER REPRESENTS AND
WARRANTS TO LENDER THAT THE INFORMATION PROVIDED ABOVE IS TRUE AND CORRECT AND
THAT THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN BORROWER'S FINANCIAL
CONDITION AS DISCLOSED IN BORROWER'S MOST RECENT FINANCIAL STATEMENT TO LENDER.
THIS AUTHORIZATION IS DATED AUGUST 15, 1995.
BORROWER:
SCIENTIFIC SOFTWARE - INTERCOMP, INC., A COLORADO CORPORATION
BY: /s/ XXXXXX X. XXXXXXX
----------------------------
XXXXXX X. XXXXXXX, SECRETARY
================================================================================
Variable Rate. Line of Credit.
