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EXHHIBIT 10.46
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LOAN AGREEMENT
BETWEEN
IMNET SYSTEMS, INC.
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
CLOSING DATE: MARCH ___, 1998
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TABLE OF CONTENTS
1. DEFINITIONS, TERMS AND REFERENCES........................................1
1.1. CERTAIN DEFINITIONS....................................1
1.2. USE OF DEFINED TERMS...................................7
1.3. ACCOUNTING TERMS. ....................................7
2. THE FINANCING............................................................7
2.1. EXTENSIONS OF CREDIT...................................7
2.2. INTEREST AND OTHER CHARGES.............................8
2.3. GENERAL PROVISIONS AS TO PAYMENTS.....................10
3. GENERAL REPRESENTATIONS AND WARRANTIES..................................11
3.1. EXISTENCE AND QUALIFICATION...........................11
3.2. AUTHORITY; AND VALIDITY AND BINDING EFFECT............11
3.3. INCUMBENCY AND AUTHORITY OF SIGNING OFFICERS..........11
3.4. NO MATERIAL LITIGATION................................11
3.5. TAXES.................................................11
3.6. CAPITAL...............................................11
3.7. ORGANIZATION..........................................11
3.8. INSOLVENCY............................................12
3.9. TITLE.................................................12
3.10. MARGIN STOCK..........................................12
3.11. NO VIOLATIONS.........................................12
3.12. FINANCIAL STATEMENTS..................................12
3.13. POSSESSION OF PERMITS.................................12
3.14. SUBSIDIARIES..........................................13
3.15. EMPLOYEE BENEFIT PLANS................................13
4. AFFIRMATIVE COVENANTS...................................................13
4.1. PERIODIC FINANCIAL STATEMENTS.........................13
4.2. ANNUAL FINANCIAL STATEMENTS...........................13
4.3. PAYMENT OF TAXES......................................13
4.4. MAINTENANCE OF INSURANCE..............................13
4.5. COMPLIANCE CERTIFICATE................................14
4.6. CHANGE OF PRINCIPAL PLACE OF BUSINESS, ETC............14
4.7. PRESERVATION OF EXISTENCE.............................14
4.8. COMPLIANCE WITH LAWS..................................14
5. NEGATIVE COVENANTS......................................................14
5.1. ENCUMBRANCES..........................................14
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5.2. DEBT..................................................14
5.3. CONTINGENT LIABILITIES................................15
5.4. DIVIDENDS.............................................15
5.5. REDEMPTION............................................15
5.6. INVESTMENTS...........................................15
5.7. MERGERS...............................................15
5.8. AFFILIATE TRANSACTIONS................................15
5.9. DISPOSITION OF ASSETS.................................16
5.10. EMPLOYEE BENEFIT PLANS................................16
6. FINANCIAL COVENANTS.....................................................16
7. EVENTS OF DEFAULT.......................................................16
7.1. OBLIGATIONS...........................................16
7.2. MISREPRESENTATIONS....................................16
7.3. CERTAIN COVENANTS.....................................16
7.4. OTHER COVENANTS.......................................16
7.5. OTHER DEBTS...........................................16
7.6. VOLUNTARY BANKRUPTCY..................................17
7.7. INVOLUNTARY BANKRUPTCY................................17
7.8. JUDGMENTS.............................................17
7.10. MATERIAL ADVERSE CHANGE...............................17
7.11. CHANGE OF CONTROL, ETC................................17
8. REMEDIES................................................................17
8.1. ACCELERATION OF THE OBLIGATIONS.......................18
8.2. DEFAULT...............................................18
8.3. OTHER REMEDIES........................................18
8.4. SET OFF...............................................18
9. MISCELLANEOUS...........................................................18
9.1. WAIVER................................................18
9.2. GOVERNING LAW.........................................19
9.3. SURVIVAL..............................................19
9.4. ASSIGNMENTS...........................................19
9.5. COUNTERPARTS..........................................19
9.6. REIMBURSEMENT.........................................19
9.7. SUCCESSORS AND ASSIGNS................................19
9.8. SEVERABILITY..........................................19
9.9. NOTICES...............................................20
9.10. ENTIRE AGREEMENT: AMENDMENTS..........................20
9.11. TIME OF ESSENCE.......................................20
9.12. INTERPRETATION........................................20
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9.13. LENDER NOT A JOINT VENTURER...........................20
9.14. JURISDICTION..........................................20
9.15. ACCEPTANCE............................................20
9.16. PAYMENT ON NON-BUSINESS DAYS..........................21
9.17. CURE OF DEFAULTS BY LENDER............................21
9.18. RECITALS..............................................21
9.19. ATTORNEY-IN-FACT......................................21
9.20. SOLE BENEFIT..........................................21
9.21. INDEMNIFICATION.......................................21
9.22. JURY TRIAL WAIVER.....................................22
9.23. TERMINOLOGY...........................................22
9.24. EXHIBITS..............................................22
10. CONDITIONS PRECEDENT....................................................22
10.1. SECRETARY'S CERTIFICATE...............................22
10.2. GOOD STANDING CERTIFICATES............................22
10.3. LOAN DOCUMENTS........................................23
10.4. INSURANCE.............................................23
10.5. OPINION OF COUNSEL....................................23
10.6. NO DEFAULT............................................23
10.7. TELEPHONE INSTRUCTION LETTER..........................23
10.8. NO MATERIAL ADVERSE CHANGE............................23
10.9. OTHER.................................................23
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LOAN AGREEMENT
PREAMBLE. THIS LOAN AGREEMENT, made, entered into and effective as of March __,
1998, by and between IMNET SYSTEMS, INC., a Delaware corporation ("Borrower");
and WACHOVIA BANK, NATIONAL ASSOCIATION, a national bank ("Lender").
WITNESSETH:
WHEREAS, Borrower has applied to Lender for certain financing, as more
particularly described hereinbelow, consisting of a $15,000,000 revolving line
of credit; and
WHEREAS, Lender is willing to extend such financing to Borrower in
accordance with the terms hereof upon the execution of this Agreement by
Borrower, compliance by Borrower with all of the terms and provisions of this
Agreement and fulfillment of all conditions precedent to Lender's obligations
herein contained;
NOW, THEREFORE, to induce Lender to extend the financing provided for
herein, and for other good and valuable consideration, the sufficiency and
receipt of all of which are acknowledged by Borrower, Lender agrees with
Borrower as follows:
1. DEFINITIONS, TERMS AND REFERENCES.
1.1. CERTAIN DEFINITIONS. In addition to such other terms as
elsewhere defined herein, as used in this Agreement and in any Exhibit or
Schedule attached hereto, the following terms shall have the following meanings:
"Advance" shall mean an advance of borrowed funds made by Lender to or
on behalf of Borrower pursuant to this Agreement.
"Affiliate" shall mean, with respect to any Person, any Person
Controlling, Controlled by or under common Control with such Person.
"Agreement" shall mean this Loan Agreement, as it may be modified,
amended or supplemented from time to time; together with any and all Schedules
or Exhibits attached hereto.
"Applicable Rate" shall mean the interest rate per annum payable on the
Advances, as is defined and more particularly described in Section 2.2.1.
"Bankruptcy Code" shall mean Title 11 of the United States Code, as it
may be amended from time to time.
"Borrower" shall have the meaning given to such term in the preamble to
this Agreement.
"Borrower Information Schedule" shall mean an information schedule, to
be completed by Borrower, in substantially the form of Exhibit "A" attached
hereto.
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"Borrowings" shall mean Advances of borrowed funds made hereunder to or
on behalf of Borrower pursuant to this Agreement.
"Business Day" shall mean a day on which Lender is open for the conduct
of banking business at its principal office in Atlanta, Georgia; provided,
however, that, for purposes of determining the timing of requests for, and
establishing the Applicable Rate on, LIBOR Borrowings, "Business Day" shall
mean, additionally, any day on which dealings in United States Dollar deposits
are also being carried out by Lender in the London interbank eurodollar market.
"Closing Date" shall mean the date set forth on the cover page as the
"Closing Date."
"Compliance Certificate" shall mean a certificate to be signed by a
duly authorized officer of Borrower in substantially the form of Exhibit "B"
attached hereto (unless otherwise required or approved by Lender).
"Commitment" shall mean the maximum amount which is available for
borrowing under the Line of Credit; namely, Fifteen Million Dollars
($15,000,000).
"Consolidated Subsidiaries" shall mean those Subsidiaries of Borrower
(if any) existing from time to time which, for purposes of GAAP, are required to
be consolidated for financial reporting purposes.
"Control," "Controlled" or "Controlling" shall mean, with respect to
any Person, the power to direct the management and policies of such Person,
directly, indirectly, whether through the ownership of voting securities or
otherwise; provided, however, that, in any event, any Person which owns directly
or indirectly fifty percent (50%) or more of the securities having ordinary
voting power for the election of directors or other governing body of a
corporation shall be deemed to "Control" such corporation for purposes of this
Agreement.
"Debt" means all liabilities, obligations and indebtedness of a Person,
of any kind or nature, whether now or hereafter owing, arising, due or payable,
howsoever evidenced, created, incurred, acquired or owing, and whether primary,
secondary, direct, contingent, fixed or otherwise, including, without in any way
limiting the generality of the foregoing: (i) all obligations, liabilities and
indebtedness secured by any Lien on a Person's Property, even though such Person
shall not have assumed or become liable for the payment thereof; (ii) all
obligations or liabilities created or arising under any capital lease,
conditional sale or other title retention agreement; (iii) all accrued pension
fund and other employee benefit plan obligations and liabilities; (iv) all
Guaranteed Obligations; (v) any liabilities under, or associated with, interest
rate protection agreements; and (vi) any deferred taxes.
"Default Condition" shall mean the occurrence of any event which, after
satisfaction of any requirement for the giving of notice or the lapse of time,
or both, would become an Event of Default.
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"Default Rate" shall mean that interest rate per annum equal to two
percent (2%) per annum in excess of the otherwise Applicable Rate payable on any
Obligation.
"Dollars" or "$" shall mean United States Dollars.
"Employee Benefit Plan" shall mean any employee welfare benefit plan as
that term is defined in Section 3(1) of ERISA, any employee pension benefit
plan, as that term is defined in Section 3(2) of ERISA or any other plan which
is subject to the provisions of Title IV of ERISA which are for the benefit of
any employees of Borrower and any employees of any Subsidiary or any other
entity which is a member of a controlled group or under common control with
Borrower, as such terms are defined in Section 4001(a)(14) of ERISA.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as may be amended from time to time.
"Event of Default" shall mean any of the events or conditions described
in Article 7, provided that any requirement for the giving of notice or the
lapse of time, or both, has been satisfied.
"Executive Office" shall mean the address of Borrower's chief executive
office and principal place of business, as designated on the Borrower
Information Schedule.
"Fiscal Year", in respect of a Person, shall mean the fiscal year of
such Person, as employed by such Person as of the Closing Date, and designated
as such on the Borrower Information Schedule, as to Borrower. The terms "Fiscal
Quarter" and "Fiscal Month," if and when used herein, shall correspond
accordingly thereto.
"GAAP" shall mean generally accepted accounting principles consistently
applied for the fiscal period(s) in question.
"Guaranteed Obligations" shall mean, with respect to any Person, all
obligations of such Person which in any manner directly or indirectly guarantee
or assure, or in effect guarantee or assure, the payment or performance of any
indebtedness, dividend or other obligation of any other Person or to assure or
in effect assure the holder of any such obligations against loss in respect
thereof.
"Guarantor" shall mean, individually and collectively, any and all
accommodation makers, endorsers, guarantors or sureties which, either on or
after the Closing Date, enter into any guaranty. As of the Closing Date, there
are no Guarantors of any of the Obligations.
"Guaranty" shall mean any agreement or other writing executed by a
Guarantor guaranteeing payment of any of the Obligations.
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"Interest Period" shall mean, in respect of LIBOR Borrowings, a period
commencing on the date of such borrowing and ending on the numerically
corresponding date in the first (1st), second (2nd) or third (3rd) month
thereafter, as Borrower may elect in the applicable notice of such borrowing to
be given pursuant to Section 2.2.1; provided, however, that any Interest Period
which would otherwise end on a day which is not a Business Day shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, and any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate subsequent calendar month.
"Interest Rate Determination Date" shall mean, in respect of LIBOR
Borrowings, three (3) Business Days prior to the first day of each Interest
Period.
"Lender" shall have the meaning given to such term in the preamble to
this Agreement.
"Letter of Credit" shall have the meaning given to such term in Section
2.1.2.
"Letter of Credit Obligations" shall mean all Obligations of Borrower
arising in respect of Letters of Credit, including, without limitation, (i) all
contingent liabilities arising in respect of Letters of Credit issued, but not
drawn upon, and (ii) all reimbursement liabilities arising in respect of
drawings made under Letters of Credit.
"LIBOR Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the LIBOR Rate plus any applicable margin described therein.
"LIBOR Rate" shall mean, with respect to any Interest Period, an
interest rate per annum computed by dividing: (x) the rate per annum determined
by Lender from time to time on the basis of the offered rate for deposits in
dollars in the London interbank borrowing market of amounts equal to or
comparable to the amount of a requested borrowing under the Line of Credit to
which such Interest Period relates offered for a term comparable to such
Interest Period, which rate appears on the display designated as page "3750" of
the Telerate Service (or such other page as may replace page "3750" of that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits) as of 11:00 a.m., London time, on the Interest
Rate Determination Date pertaining to such Interest Period (which rate shall be
rounded upward, if necessary, to the next higher 1/10,000 of 1%); provided,
however, that if more than one such offered rate appears on such service on such
date, the offered rate shall be deemed to be the arithmetic average (rounded
upward, if necessary, to the next higher of 1/100 of 1%) of such offered rates;
by (y) the number 1 minus any then applicable percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors
of the Federal Reserve System (or its successor) for determining the maximum
reserve requirement for a member of the Federal Reserve System in respect of
"Eurocurrency liabilities" (or any other category of liabilities which includes
deposits by reference to which the interest rate on
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such borrowings is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of Lender to United
States residents). The LIBOR Rate shall be adjusted automatically on and as of
the effective date of any change in the percentage described in the foregoing
clause (y).
"Lien" shall mean any deed to secure debt, deed of trust, mortgage or
similar instrument, and any lien, security interest, preferential arrangement
which has the practical effect of constituting a security interest, security
title, pledge, charge, encumbrance or servitude of any kind, whether by
consensual agreement or by operation of statute or other law, and whether
voluntary or involuntary, including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof.
"Line of Credit" shall refer to the line of credit in a maximum
principal amount equal to the amount of the Commitment opened by Lender in favor
of Borrower pursuant to the provisions of Section 2.1.
"Loan Documents" shall mean this Agreement, any Notes, and any and all
other documents, instruments, certificates and agreements executed and/or
delivered by Borrower in connection herewith, or any one, more, or all of the
foregoing, as the context shall require.
"Master Note" shall mean the master promissory note, dated of even date
herewith, as amended or supplemented from time to time, in a principal amount
equal to the maximum amount of the Line of Credit, evidencing Advances to be
obtained by Borrower under the Line of Credit, together with any renewals or
extensions thereof in whole or in part. The Master Note shall be substantially
in the form of Exhibit "C".
"Material Adverse Change" shall mean with respect to any event, act,
condition or occurrence of whatever nature (including any adverse determination
in any litigation, arbitration or governmental investigation or proceeding),
whether singly or in conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or not related, a
material adverse change in, or a material adverse effect upon, any of (a) the
financial condition, operations, business, properties or prospects of the
Borrower and its Consolidated Subsidiaries taken as a whole or any Guarantor,
(b) the rights and remedies of the Lender under any of the Loan Documents or any
documents, instruments or agreements executed and/or delivered by any Person
other than Borrower in conjunction with the Loan Documents, or the ability of
the Borrower to perform its obligations under any of the Loan Documents or of
any Guarantor to perform Guarantor's obligations under any Guaranty or any
documents, instruments or agreements executed by any Guarantor in conjunction
with such Guaranty, or (c) the legality, validity or enforceability of any of
the Loan Documents or any documents, instruments or agreements executed and/or
delivered by any Person other than Borrower in conjunction with the Loan
Documents. Without limitation of the foregoing, any significant negative change
in, or the cancellation of, the distribution contract of Borrower with HBO &
Company as in effect on the Closing Date shall, at Lender's option, constitute a
Material Adverse Change.
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"Note" shall mean any instrument at any time evidencing all or any
portion of any Obligations. The term "Note" shall include the Master Note.
"Obligations" shall mean any and all Debts of Borrower to Lender,
including without limiting the generality of the foregoing, any Debt of Borrower
to Lender under any loan made to Borrower by Lender prior to the date hereof and
any and all extensions or renewals thereof in whole or in part; any Debt of
Borrower to Lender arising hereunder or as a result hereof, whether evidenced by
any Note, or constituting Advances, Letter of Credit Obligations or otherwise,
and any and all extensions or renewals thereof in whole or in part; any Debt of
Borrower to Lender under any later or future advances or loans made by Lender to
Borrower, and any and all extensions or renewals thereof in whole or in part;
and any and all future or additional Debts of Borrower to Lender whatsoever and
in any event, whether existing as of the date hereof or hereafter arising,
whether arising under a loan, lease, credit card arrangement, line of credit,
letter of credit or other type of financing, and whether direct, indirect,
absolute or contingent, as maker, endorser, guarantor, surety or otherwise, and
whether evidenced by, arising out of, or relating to, a promissory note, xxxx of
exchange, check, draft, bond, letter of credit, guaranty agreement, bankers'
acceptance, foreign exchange contract, interest rate protection agreement,
commitment fee, service charge or otherwise.
"Permitted Encumbrances" shall mean: (i) Liens for taxes not yet due
and payable or being actively contested as permitted by this Agreement; (ii)
carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business, payment for which is not yet
due or which are being actively contested in good faith and by appropriate,
lawful proceedings, but only if such liens are and remain junior to liens
granted in favor of Lender; (iii) pledges or deposits in connection with
worker's compensation, unemployment insurance and other social security
legislation; (iv) deposits to secure the performance of utilities, leases,
statutory obligations and surety and appeal bonds and other obligations of a
like nature arising by statute or under customary terms regarding depository
relationships on deposits held by financial institutions with whom Borrower has
a banker-customer relationship; (vi) typical restrictions imposed by licenses
and leases of software (including location and transfer restrictions); (vii) any
Liens granted in favor of Lender; and (viii) any Liens granted by Borrower or
any Subsidiary to vendors or financiers of capital assets to secure the payment
of Purchase Money Debt so long as (A) such Debt is permitted to be incurred
hereunder, (B) such Liens extend only to the specific assets so purchased,
secure only such deferred payment obligation and related interest, fees and
charges and no other Debt, and (C) such Liens are promptly released upon the
payment in full of such Debt.
"Person" shall mean any individual, partnership, corporation, limited
liability company, joint venture, joint stock company, trust, governmental unit
or other entity.
"Prime Borrowings" shall mean those Borrowings which Borrower elects,
pursuant to Section 2.2.1, to bear interest at a rate per annum determined by
reference to the Prime Rate plus any applicable margin described therein.
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"Prime Rate" refers to that interest rate so denominated and set by
Lender from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Lender. Lender extends
credit at interest rates equal to, above and below the Prime Rate.
"Purchase Money Debt" shall mean Debt incurred by Borrower or any
Subsidiary in connection with the acquisition of capital assets for the cost
thereof (including any for the deferred payment of any purchase price).
"Subordinated Debt" shall mean any unsecured Debt for borrowed funds or
for the deferred payment of any purchase price of Borrower or any Subsidiary to
any Person which, by written agreement in form and substance satisfactory to
Lender, has been subordinated in right of payment and claim, to the rights and
claims of Lender in respect of the Obligations, pursuant to a Subordination
Agreement.
"Subordination Agreement" shall mean an agreement made in favor of
Lender with respect to any Debt of Borrower by the holder(s) thereof, to be in
form and substance satisfactory to Lender, pursuant to which such Debt is made
Subordinated Debt.
"Subsidiary" shall mean any corporation, partnership, business
association or other entity (including any Subsidiary of any of the foregoing)
of which Borrower owns, directly or indirectly through one or more Subsidiaries,
fifty percent (50%) or more of the capital stock or other equity interest having
ordinary power for the election of directors or others performing similar
functions.
"Telephone Instructions Letter" shall mean a letter from Borrower to
Lender, dated as of the Closing Date, indicating to Lender the Person(s)
authorized to request Advances pursuant hereto, to be substantially in the form
of Exhibit "D" attached hereto (unless otherwise required or approved by
Lender).
"Termination Date" shall mean the earliest to occur of the following
dates: (i) that date on which, pursuant to Section 8, Lender terminates the Line
of Credit (or the Line of Credit is deemed automatically terminated) subsequent
to and as a result of the occurrence of an Event of Default; or (ii) that date
which is 364 days after the Closing Date (or any later date as to which Lender
may agree in writing from time to time hereafter).
1.2. USE OF DEFINED TERMS. All terms defined in this Agreement
and the Exhibits shall have the same defined meanings when used in any other
Loan Documents, unless the context shall require otherwise.
1.3. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall have the meanings generally attributed to such terms under
GAAP.
2. THE FINANCING.
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2.1. EXTENSIONS OF CREDIT.
2.1.1. LINE OF CREDIT. On the Closing Date, subject
to fulfillment of all conditions precedent set forth in Section 10, Lender
agrees to open the Line of Credit in favor of Borrower so that, during the
period from the Closing Date to, but not including, the Termination Date, so
long as there is not in existence any Default Condition or Event of Default and
the requested Borrowing, if made, will not cause a Default Condition or Event of
Default to exist, Borrower may borrow and repay and reborrow Advances in up to a
maximum aggregate principal amount outstanding at any one time equal to the
Commitment; subject, however, to the requirement that at no time shall the
aggregate principal amount of (i) outstanding Advances under the Line of Credit,
plus (ii) the aggregate amount of all Letter of Credit Obligations incurred
pursuant to Section 2.1.2, exceed the Commitment. All proceeds so obtained under
the Line of Credit may be used by Borrower for working capital and general
corporate purposes in such manner as Borrower may elect in the ordinary course
of its business operations in conformity with the terms of this Agreement,
including, particularly, Section 3.10. The Debts arising from Advances made to
or on behalf of Borrower under the Line of Credit shall be evidenced by the
Master Note, which shall be executed by Borrower and delivered to Lender on the
Closing Date. The outstanding principal amount of the Master Note may fluctuate
from time to time, but shall be due and payable in full on the Termination Date,
and shall bear interest from the date of each disbursement of principal until
paid in full at the Applicable Rate, payable in the manner described in Section
2.2.1. Subject to any contrary provisions of Section 2.2.1 in respect of LIBOR
Borrowings, Borrower shall have the option to request Advances under the Line of
Credit by telephone or in a writing delivered to Lender not later than 11:00
a.m. (Atlanta, Georgia time) on the date of the requested Advance; provided,
however, that any telephone requests shall be made in accordance with the
Telephone Instructions Letter and, unless otherwise approved by Lender,
confirmed in writing not later than the Business Day following the disbursement
of the requested Advance.
2.1.2. LETTERS OF CREDIT. In addition to the
foregoing, so long as the Line of Credit remains open, Borrower shall have the
further right to apply for, and obtain commercial or standby letters of credit
("Letters of Credit") to be issued by Lender for Borrower for use by Borrower in
the ordinary course of its business operations pursuant to a separate
application and agreement (one per each Letter of Credit) to be executed at time
of issuance between Lender and Borrower, which shall set forth, among other
things, the purpose, beneficiary, the expiry date and credit limit, together
with the fees and charges imposed by Lender for the issuance and administration
thereof. All outstanding Letter of Credit Obligations shall be reserved by
Lender against borrowing availability under the Line of Credit. Lender shall
have the continuing right to charge as Advances any outstanding Letter of Credit
Obligations, and any fees and charges associated therewith, which have become
due and payable. Lender shall have the further right from time to time to impose
sublimits on the aggregate amounts of Letters of Credit and Letter of Credit
Obligations which at any one time may be outstanding.
2.2. INTEREST AND OTHER CHARGES.
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2.2.1. INTEREST AT APPLICABLE RATE. Lender and
Borrower agree that the interest rate payable on the Borrowings (herein called
the "Applicable Rate") shall be determined as follows:
(1) LINE OF CREDIT. Outstanding Advances under
the Line of Credit shall bear interest at either (i) the Prime Rate, minus
one-fourth of one percent (-1/4%) per annum, in the case of Advances
constituting Prime Borrowings, or (ii) subject to the conditions and limitations
set forth in subsection (b) below, the LIBOR Rate plus one and one-fourth of one
percent (1 1/4%) per annum, in the case of Advances constituting LIBOR
Borrowings.
(2) SPECIAL CONDITIONS AND LIMITATIONS ON LIBOR
BORROWINGS. All Borrowings obtained on the Closing Date and for a period of
three (3) Business Days thereafter shall be Prime Borrowings. Thereafter,
Borrower shall have the continuing right, provided that no Event Default or
Default Condition exists, to obtain LIBOR Borrowings or to convert Prime
Borrowings to LIBOR Borrowings; subject, however, to the following conditions
and limitations: (i) Borrower must request a LIBOR Borrowing, specifying the
amount thereof and the applicable Interest Period, at least three (3) Business
Days in advance of the intended Borrowing date; (ii) no more than five (5) LIBOR
Borrowings under the Line of Credit may be obtained at any time; (iii) LIBOR
Borrowings must be in minimum amounts of One Million Dollars ($1,000,000), and
multiples of One Hundred Thousand Dollars ($100,000) in excess thereof; (iv) the
Interest Period for LIBOR Borrowings in respect of the Line of Credit shall not
exceed the Termination Date; (v) if on or prior to the first day of any Interest
Period, Lender determines that deposits in United States Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period or that the LIBOR Rate will not adequately and fairly reflect
the cost to Lender of funding any relevant borrowings for such Interest Period,
then, Lender shall forthwith give notice thereof to Borrower, whereupon, until
Lender notifies Borrower that the circumstances giving rise to such suspension
no longer exist, the obligation of Lender to make LIBOR Borrowings available to
Borrower shall be suspended; (vi) if at any time, a change of law, or compliance
by Lender with any request or directive (whether or not having the force of law)
of any governmental authority shall make it unlawful or impracticable for Lender
to make available, maintain or fund any LIBOR Borrowings, Lender shall forthwith
give notice to such effect to Borrower, whereupon, until Lender notifies
Borrower that the circumstances giving rise to such suspension no longer exist,
the obligation of Lender to make such borrowings available to Borrower shall be
suspended and if Lender shall determine that it may not lawfully continue to
maintain and fund any then outstanding borrowings to maturity and shall so
specify in such notice, each Borrowing so affected shall be converted into a
Prime Borrowing, effective immediately; (vii) unless Borrower has timely given
Lender a notice of LIBOR Borrowing required hereinabove, a LIBOR Borrowing shall
automatically convert to a Prime Borrowing at the expiration of the Interest
Period corresponding thereto; (viii) no voluntary prepayment of any LIBOR
Borrowing shall be permitted unless Borrower complies with clause (ix) below;
and (ix) upon the request of Lender, delivered to Borrower, Borrower shall pay
to Lender such amount or amounts as shall be determined by Lender in connection
with the relevant Interest Period as a result of: (A) any payment or prepayment
of any LIBOR Borrowing by Borrower being made on a date other than the last day
of an Interest Period for such borrowing, whether as a result
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of voluntary prepayment, involuntary acceleration or otherwise; or (B) any
failure by the Borrower to undertake any such LIBOR Borrowing on the date for
which notice of such borrowing is specified by Borrower. In the case of clause
(ix) above, such amount shall include an amount determined by Lender, in its
good faith discretion, to be equal to the excess, if any, of the amount of
interest which would have accrued on the amount so paid or prepaid or not
prepaid or borrowed for the period from the date of such payment, prepayment or
failure to prepay or borrow to the last day of the then current Interest Period
for such borrowing (or, in the case of a failure to prepay or borrow, the
Interest Period for such borrowing which would have commenced on the date of
such failure to prepay or borrow) at the applicable rate of interest for such
borrowing provided for herein over the amount of interest (as determined by
Lender in the exercise of its good faith discretion) Lender would have paid on
deposits in Dollars of comparable amounts having terms comparable to such period
placed with it by leading banks in the London interbank market.
(3) PAYMENT OF INTEREST. Accrued interest on any
Prime Borrowings at the Applicable Rate shall be due and payable monthly in
arrears, on the first day of each calendar month, for the preceding calendar
month (or portion thereof), commencing on the first day of the first calendar
month following the Closing Date, and at maturity. Accrued interest on any LIBOR
Borrowings shall be due and payable at the Applicable Rate on the same dates as
are prescribed for the payment of accrued interest on Prime Borrowings and,
additionally, at the expiration of each Interest Period corresponding to such
Borrowings, and at maturity.
(4) CALCULATION OF INTEREST AND FEES. Interest
on Borrowings at the Applicable Rate (and any fees described in Section 2.2.2
computed on a per annum basis) shall be calculated on the basis of a 360-day
year and actual days elapsed. The Applicable Rate on Prime Borrowings shall
change with each change in the Prime Rate, effective as of the opening of
business on the Business Day of such change.
(5) CHARGING OF INTEREST AND FEES. Accrued and
unpaid interest on any Borrowings (and any outstanding fees described in Section
2.2.2) may, when due and payable, be paid, at Lender's option (without any
obligation to do so), either (i) by Lender's charging the Line of Credit for an
Advance in the amount thereof; or (ii) by Lender's debiting any deposit account
of Borrower for the amount thereof; but, notwithstanding the foregoing, Borrower
shall be and remain responsible for the payment of such sums.
(6) RATE ON OTHER OBLIGATIONS. To the extent
that, at any time, there are other Obligations besides Advances which are
outstanding and unpaid, such Obligations shall, unless and except to the extent
that this Agreement, any Note or any other Loan Document evidencing such
Obligations provides otherwise, bear interest at the same rate per annum as is
then and thereafter payable on Prime Borrowings under the Line of Credit.
2.2.2. FEES. In addition to the payment of interest
at the Applicable Rate, Borrower shall also be obligated to pay Lender the
following fees and charges:
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(1) FACILITY FEE. On the Closing Date, a fully
earned, non-refundable facility fee of Twenty-Five Thousand Dollars ($25,000).
(2) NON-USAGE FEE. Quarterly, on the first day
of each calendar quarter, commencing on July 1, 1998, Borrower shall pay to
Lender a fee equal to (x) one-fourth of one percent (1/4%) per annum, times (y)
the difference between (A) the Commitment, and (B) the sum, without duplication,
of the following, determined on a daily average basis for the immediately
preceding calendar quarter (or portion thereof, as the case may be): (i) all
Advances under the Line of Credit plus (ii) all outstanding Letter of Credit
Obligations. The first such payment shall cover the period from the Closing Date
to June 30, 1998.
2.2.3. CAPITAL ADEQUACY. If, after the Closing
Date, the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the administration thereof, or compliance by Lender with any
request or directive regarding capital adequacy (whether or not having the force
of law) of any such authority, central bank or comparable agency, affects or
could reasonably be expected to affect the amount of capital required or
expected to be maintained by Lender or any corporation in control of Lender and
Lender determines that the amount of such capital is increased by or based upon
Lender's obligations hereunder, then from time to time, within thirty (30) days
after demand by Lender, Borrower shall pay to Lender such additional amount or
amounts as will compensate Lender in light of such circumstances, to the extent
that Lender reasonably determines such increase in capital is allocable to
Lender's obligations hereunder, and such payment, as and when received, shall be
applied by Lender in reimbursement of Lender's increased costs in regard to such
obligations.
2.2.4. USURY SAVINGS PROVISIONS. Lender and
Borrower hereby further agree that the only charge imposed by Lender upon
Borrower for the use of money in connection herewith is and shall be interest at
the Applicable Rate, and that all other charges imposed by Lender upon Borrower
in connection herewith, are and shall be deemed to be charges made to compensate
Lender for underwriting and administrative services and costs, and other
services and costs performed and incurred, and to be performed and incurred, by
Lender in connection with making credit available to Borrower hereunder, and
shall under no circumstances be deemed to be charges for the use of money. In no
contingency or event whatsoever shall the aggregate of all amounts deemed
interest hereunder or under the Notes and charged or collected pursuant to the
terms of this Agreement or pursuant to the Notes exceed the highest rate
permissible under any law which a court of competent jurisdiction shall, in a
final determination, deem applicable hereto. In the event that such a court
determines that Lender has charged or received interest hereunder in excess of
the highest applicable rate, the rate in effect hereunder shall automatically be
reduced to the maximum rate permitted by applicable law and Lender shall
promptly refund to Borrower any interest received by Lender in excess of the
maximum lawful rate or, if so requested by Borrower, shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that Borrower
not pay or contract to pay, and that Lender not receive or contract to receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may be paid by Borrower under applicable law.
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2.3. GENERAL PROVISIONS AS TO PAYMENTS.
2.3.1. METHOD OF PAYMENT. All payments of interest,
fees and principal pursuant to this Agreement must be received by Lender no
later than 2:00 p.m. (Atlanta, Georgia time) on the date when due, in federal or
other funds immediately available to Lender in Atlanta, Georgia.
2.3.2. APPLICATION OF PAYMENT. Except as otherwise
expressly set forth herein, all payments received by Lender hereunder shall be
applied, in accordance with the then current billing statement applicable to the
Borrowing, first to accrued interest, then to fees, then to principal due and
then to late charges. Any remaining funds shall be applied to the further
reduction of principal. In the event more than one Borrowing shall be
outstanding hereunder, and no designation is made by Borrower, Lender, in its
discretion, may determine to which Borrowing(s) each payment shall be applied.
Notwithstanding the foregoing, upon the occurrence of a Default Condition or
Event of Default, payments shall be applied to the Obligations in such order as
Lender, in its sole discretion, may elect.
3. GENERAL REPRESENTATIONS AND WARRANTIES. In order to induce
Lender to enter into this Agreement, Borrower hereby represents and warrants to
Lender (which representations and warranties, together with any other
representations and warranties of Borrower contained elsewhere in this
Agreement, shall be deemed to be renewed as of the date of each Advance and the
issuance of each Letter of Credit), as set forth below:
3.1. EXISTENCE AND QUALIFICATION. Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of its incorporation, as designated on the Borrower Information
Schedule, with its principal place of business, chief executive office and
office where it keeps all of its books and records being located at the
Executive Office, and is duly qualified as a foreign corporation in good
standing in the State of Georgia and in each other State wherein the conduct of
its business or the ownership of its property requires such qualification and
the failure to be so qualified could reasonably be expected to result in a
Material Adverse Change. Borrower has as its corporate name, as registered with
the secretary of state of the state of its incorporation, the words first
inscribed hereinabove as its name, and, except as may be described on the
Borrower Information Schedule, has not done business under any other name for at
least the past seven (7) years.
3.2. AUTHORITY; AND VALIDITY AND BINDING EFFECT. Borrower
has the corporate power to make, deliver and perform under the Loan Documents,
and to borrow hereunder, and has taken all necessary and appropriate corporate
action to authorize the execution, delivery and performance of the Loan
Documents. This Agreement constitutes, and the remainder of the Loan Documents,
as and when executed and delivered for value received, will constitute, the
valid obligations of Borrower, legally binding upon it and enforceable against
it in accordance with their respective terms.
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3.3. INCUMBENCY AND AUTHORITY OF SIGNING OFFICERS. The
undersigned officers of Borrower hold the offices specified hereinbelow and, in
such capacities, are duly authorized and empowered to execute, attest and
deliver this Agreement and the remainder of the Loan Documents for and on behalf
of Borrower, and to bind Borrower accordingly thereby.
3.4. NO MATERIAL LITIGATION. Except as may be set forth on
the Borrower Information Schedule, there are no legal proceedings pending (or,
so far as Borrower or its officers know, threatened), before any court or
administrative agency which, if adversely determined, could reasonably be
expected to result in a Material Adverse Change.
3.5. TAXES. Borrower has filed or caused to be filed all
tax returns required to be filed by it and has paid all taxes shown to be due
and payable by it on said returns or on any assessments made against it.
3.6. CAPITAL. All capital stock, debentures, bonds, notes
and all other securities of Borrower presently issued and outstanding are
validly and properly issued in accordance with all applicable laws, including,
but not limited to, the "blue sky" laws of all applicable states and the federal
securities laws.
3.7. ORGANIZATION. The articles of incorporation of and
bylaws of Borrower are in full force and effect under the law of the state of
its incorporation and all amendments to said articles of incorporation and
bylaws have been duly and properly made under and in accordance with all
applicable laws.
3.8. INSOLVENCY. After giving effect to the execution and
delivery of the Loan Documents and the extension of any credit or other
financial accommodations hereunder, Borrower will not be "insolvent", within the
meaning of such term as used in O.C.G.A. ss. 18-2-22 or as defined in ss.
101(32) of the Bankruptcy Code; or be unable to pay its debts generally as such
debts become due; or have an unreasonably small capital.
3.9. TITLE. Borrower has good and marketable title to all
of its properties subject to no Lien of any kind except for Permitted
Encumbrances.
3.10. MARGIN STOCK. Borrower is not engaged principally, or
as one of its important activities, in the business of purchasing or carrying
any "margin stock", as that term is defined in Section 221.2(h) of Regulation U
of the Board of Governors of the Federal Reserve System, and no part of the
proceeds of any borrowing made pursuant hereto will be used to purchase or carry
any such margin stock or to extend credit to others for the purpose of
purchasing or carrying any such margin stock, or be used for any purpose which
violates, or which is inconsistent with, the provisions of Regulation X of said
Board of Governors. In connection herewith, if requested by Lender, Borrower
will furnish to Lender a statement in conformity with the requirements of
Federal Reserve Form U-1 referred to in said Regulation U to the foregoing
effect.
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3.11. NO VIOLATIONS. The execution, delivery and
performance by Borrower of this Agreement and the Notes have been duly
authorized by all necessary corporate action and do not and will not require any
consent or approval of the shareholders of Borrower, violate any provision of
any law, rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Borrower or of the charter or bylaws of Borrower, or result in
a breach of or constitute a default under any indenture or loan or credit
agreement or any other agreement, lease or instrument to which Borrower is a
party or by which it or its properties may be bound or affected; and Borrower is
not in default under any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any such indenture, agreement,
lease or instrument.
3.12. FINANCIAL STATEMENTS. The financial statements of
Borrower and its Consolidated Subsidiaries (if any) for its most recently
completed Fiscal Year and for that portion of its current Fiscal Year ended with
that Fiscal Quarter ended closest to the Closing Date for which financial
statements have been prepared, including balance sheet, income statement and, if
available, statement of changes in cash flow, copies of which heretofore have
been furnished to Lender, are complete and accurately and fairly represent the
financial condition of Borrower and its Consolidated Subsidiaries (if any), the
results of its operations and the transactions in its equity accounts as of the
dates and for the periods referred to therein, and have been prepared in
accordance with GAAP. There are no material liabilities, direct or indirect,
fixed or contingent, of Borrower or any such Consolidated Subsidiaries as of the
date of such financial statements which are not reflected therein or in the
notes thereto. No Material Adverse Change has occurred since the date of the
balance sheet contained in the annual financial statement described hereinabove.
3.13. POSSESSION OF PERMITS. To their knowledge, after
reasonable investigation, Borrower and each Subsidiary (if any) possess all
franchises, certificates, licenses, permits and other authorizations from
governmental political subdivisions or regulatory authorities, and all patents,
trademarks, service marks, trade names, copyrights, licenses and other, similar
rights, free from burdensome restrictions, that are necessary for the ownership,
maintenance and operation of any of its properties and assets, and neither
Borrower nor any Subsidiary is in violation of any thereof. A complete and
accurate list of all such patents, trademarks, service marks, trade names,
copyrights, licenses and other, similar intellectual property rights owned by
Borrower in existence on the Closing Date is set forth on the Borrower
Information Schedule attached hereto.
3.14. SUBSIDIARIES. As of the Closing Date, Borrower has no
Subsidiaries except as may be described on the Borrower Information Schedule.
3.15. EMPLOYEE BENEFIT PLANS. As of the Closing Date,
Borrower has no Employee Benefit Plans except as may be described on the
Borrower Information Schedule.
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4. AFFIRMATIVE COVENANTS. Borrower covenants to Lender that from
and after the date hereof, and so long as any amounts remain unpaid on account
of any of the Obligations or this Agreement remains effective (whichever is the
last to occur), Borrower will comply (and cause each Subsidiary to comply) with
the affirmative covenants set forth below:
4.1. PERIODIC FINANCIAL STATEMENTS. Borrower shall, as
soon as practicable, and in any event within forty-five (45) days after the end
of each Fiscal Quarter, furnish to Lender unaudited financial statements of
Borrower and each Consolidated Subsidiary (if any), including balance sheets,
income statements and statements of cash flow, for the Fiscal Quarter ended, and
for the Fiscal Year to date, on a consolidated and, if requested by Lender,
consolidating basis. All such financial statements shall be certified by a duly
authorized officer of Borrower to present fairly the financial position and
results of operations of Borrower for the period involved in accordance with
GAAP (but for the omission of footnotes and subject to year-end audit
adjustments).
4.2. ANNUAL FINANCIAL STATEMENTS. Borrower shall, as soon
as practicable, and in any event within ninety (90) days after the end of each
Fiscal Year, furnish to Lender the annual audit report of Borrower and its
Consolidated Subsidiaries (if any), certified without material qualification by
independent certified public accountants selected by Borrower and acceptable to
Lender, and prepared in accordance with GAAP, together with relevant financial
statements of Borrower and such Subsidiaries for the Fiscal Year then ended, on
a consolidating and a consolidated basis, if applicable. Borrower shall cause
said accountants to furnish Lender with a statement that in making their
examination of such financial statements, they obtained no knowledge of any
Event of Default or Default Condition which pertains to accounting matters
relating to this Agreement or the Notes, or, in lieu thereof, a statement
specifying the nature and period of existence of any such Event of Default or
Default Condition disclosed by their examination.
4.3. PAYMENT OF TAXES. Borrower shall pay and discharge
all taxes, assessments and governmental charges upon it, its income and its
properties prior to the date on which penalties attach thereto, unless and to
the extent only that (x) such taxes, assessments and governmental charges are
being contested in good faith and by appropriate proceedings by Borrower, (y)
Borrower maintains reasonable reserves on its books therefor and (z) the payment
of such taxes does not result in a Lien other than a Permitted Encumbrance.
4.4. MAINTENANCE OF INSURANCE. In addition to and
cumulative with any other requirements herein imposed on Borrower with respect
to insurance, Borrower shall maintain insurance with responsible insurance
companies on such of its properties, in such amounts and against such risks as
is customarily maintained by similar businesses operating in the same vicinity,
but in any event to include loss, damage, flood, windstorm, fire, theft,
extended coverage, business interruption, freight insurance and product
liability insurance in amounts satisfactory to Lender, which such insurance
shall not be cancellable by Borrower, unless with the prior written consent of
Lender, or by Borrower's insurer, unless with at least ten (10) days advance
written notice to Lender thereof (or such lesser or greater time period as shall
be accepted or required by Lender from time to time). Borrower shall file with
Lender upon its request a detailed list of such insurance then in
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effect stating the names of the insurance companies, the amounts and rates of
insurance, the date of expiration thereof, the properties and risks covered
thereby and the insured with respect thereto, together with a copy of each such
policy and, within thirty (30) days after notice in writing from Lender, obtain
such additional insurance as Lender may reasonably request.
4.5. COMPLIANCE CERTIFICATE. Borrower shall, on a
quarterly basis not later than forty-five (45) days after the close of each of
its first three Fiscal Quarters and not later than ninety (90) days after the
close of its Fiscal Year, issue to Lender a Compliance Certificate (which shall
include computations demonstrating financial covenant compliance).
4.6. CHANGE OF PRINCIPAL PLACE OF BUSINESS, ETC. Borrower
hereby understands and agrees that if, at time hereafter, Borrower elects to
move its Executive Office, or if Borrower elects to change its name, identity or
its organization structure to other than a corporate structure, Borrower will
notify Lender in writing at least thirty (30) days prior thereto.
4.7. PRESERVATION OF EXISTENCE. Borrower shall preserve
and maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified as a foreign
corporation in each jurisdiction in which such qualification is necessary or
desirable in view of its business and operations or the ownership of its
properties.
4.8. COMPLIANCE WITH LAWS. Borrower and each of its
Subsidiaries shall comply with the requirements of all applicable laws, rules,
regulations and orders of any governmental authority, noncompliance with which
would or could materially adversely affect their respective financial condition
or the ownership, maintenance or operation of any material portion of any of
their respective properties. Without limiting the foregoing, each of Borrower
and its Subsidiaries shall obtain and maintain all permits, licenses and other
authorizations which are required under, and otherwise comply with, all federal,
state, and local laws and regulations.
5. NEGATIVE COVENANTS. Borrower covenants to Lender that from and
after the date hereof and so long as any amount remains unpaid on account of any
of the Obligations or this Agreement remains effective (whichever is the last to
occur), Borrower will not do (and will not permit any Subsidiary to do), without
the prior written consent of Lender, any of the things or acts set forth below:
5.1. ENCUMBRANCES. Create, assume, or suffer to exist any
Lien, except for Permitted Encumbrances.
5.2. DEBT. Incur, assume, or suffer to exist any Debt,
except for: (i) Debt to Lender or any Affiliate of Lender; (ii) Debt to Persons
other than Lender existing on the date of this Agreement and disclosed either in
the financial statements described in Section 3.12 or on the Borrower
Information Schedule; (iii) Subordinated Debt; (iv) trade payables and
contractual obligations to suppliers and customers incurred in the ordinary
course of business; (v) accrued pension fund and other employee benefit plan
obligations and liabilities (provided, however, that
21
such Debt does not result in the existence of any Event of Default or Default
Condition under any other provision of this Agreement); (vi) deferred taxes;
(vii) Debt to holders of payment items resulting from endorsements of such
instruments in the ordinary course of its business; and (viii) Purchase Money
Debt not to exceed One Million Dollars ($1,000,000) in the aggregate at any one
time outstanding,
5.3. CONTINGENT LIABILITIES. Guarantee, endorse, become
surety with respect to or otherwise become directly or contingently liable for
or in connection with the obligations of any other person, firm, or corporation,
except for endorsements of negotiable instruments for collection in the ordinary
course of business.
5.4. DIVIDENDS. Declare or pay any cash dividends on, or
make any cash distribution with respect to, its shares of any class of capital
stock if a Default Condition or Event of Default then exists or would result
therefrom.
5.5. REDEMPTION. Purchase, redeem, or otherwise acquire
for value any shares of any class of its capital stock if a Default Condition or
Event of Default then exists or would result therefrom.
5.6. INVESTMENTS. Make any investment in cash or by
delivery of property to any Person, whether by acquisition of stock,
indebtedness or other obligation or security, or by loan, advance or capital
contribution, or otherwise, in any Person or property of a Person, except for:
(i) fixed assets acquired from time to time in the ordinary course of business;
(ii) current assets arising from the sale of goods or the provision of services
in the ordinary course of business; (iii) loans or advances to employees for
salary, commissions, travel or the like, made in the ordinary course of
business, (iv) investments in direct obligations of the United States of
America, or any agency thereof or obligations guaranteed by the United States of
America, provided that such obligations mature within one (1) year from the date
of acquisition thereof; (v) investments in time deposits, demand deposits and
certificates of deposit maturing within one year from the date of acquisition
issued by a bank or trust company organized under the laws of the United States
or any state thereof having capital surplus and undivided profits aggregating at
least $500,000,000; and (vi) investments in commercial paper given the highest
rating by a national credit rating agency and maturing not more than two hundred
seventy (270) days from the date of creation thereof; (vii) in the case of any
Subsidiary domiciled in the European Community, investments substantially
similar to the types described in clauses (iv), (v) and (vi) above, but relative
to such country; and (viii) investments in the nature of acquisitions of the
stock or assets of another Person in the same line of business as Borrower as
part of the acquisition of the business of such Person as a going concern, not
to exceed, in total consideration paid, Five Million Dollars ($5,000,000), in
the aggregate, subsequent to the Closing Date.
5.7. MERGERS. Dissolve or otherwise terminate its
corporate status; or enter into any merger, reorganization or consolidation
unless Borrower is the surviving corporation; or make
22
any substantial change in the basic type of business conducted by Borrower and
its Subsidiaries, as of the Closing Date.
5.8. AFFILIATE TRANSACTIONS. Enter into, or be a party to,
or permit any Subsidiary to enter into or be a party to, any transaction with
any Affiliate, except in the ordinary course of and pursuant to the reasonable
requirements of Borrower's or such Subsidiary's business and upon fair and
reasonable terms which are fully disclosed to Lender and are no less favorable
to Borrower than would obtain in a comparable arm's length transaction with a
Person not an Affiliate.
5.9. DISPOSITION OF ASSETS. Sell, lease or otherwise
dispose of any of its properties, including any disposition of property as part
of a sale and leaseback transaction, to or in favor of any person, except for
sales or other dispositions occurring in the ordinary course of Borrower's
business.
5.10. EMPLOYEE BENEFIT PLANS. Permit an Employee Benefit
Plan to become materially underfunded or create any Employee Benefit Plan
without prior written notice to Lender and upon such notification this Agreement
shall be amended as determined necessary by Lender in its discretion as a result
of the creation of such Plan.
6. FINANCIAL COVENANTS. Borrower shall maintain a minimum
Tangible Net Worth of at least Forty-Five Million Dollars ($45,000,000),
measured quarterly, at the end of each Fiscal Quarter. "TANGIBLE NET WORTH"
shall mean Borrower's book net worth, determined on a consolidated basis for
Borrower and its Consolidated Subsidiaries in accordance with GAAP, minus all
assets of Borrower and such Subsidiaries constituting (i) goodwill, patents,
copyrights, trademarks, trade names and other intangible assets, (ii) write-ups
of assets, (iii) unamortized debt discount and expense, computer software
development costs, acquired technology costs or advance royalty costs, (iv)
deferred charges, and (v) any Debts owing to such Person from any shareholders,
officers or directors of such Person, or from any Affiliates or Subsidiaries of
such Person.
7. EVENTS OF DEFAULT. The occurrence of any events or conditions
set forth below shall constitute an Event of Default hereunder, provided that
any requirement for the giving of notice or the lapse of time, or both, has been
satisfied:
7.1. OBLIGATIONS. Borrower shall fail to make any payment
on any of its Obligations, when due, and the continuance of such default for a
period of three (3) Business Days after due date.
7.2. MISREPRESENTATIONS. Borrower, any Subsidiary or any
Guarantor shall make any representations or warranties in any of the Loan
Documents or in any Guaranty or in any certificate or statement furnished at any
time hereunder or in connection with any of the Loan Documents or any Guaranty
which proves to have been untrue or misleading in any material respect when made
or furnished.
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7.3. CERTAIN COVENANTS. Borrower shall default in the
observance or performance of any covenant or agreement contained in any Section
of Articles 5 or 6.
7.4. OTHER COVENANTS. Borrower, any Subsidiary or any
Guarantor shall default in the observance or performance of any covenant or
agreement contained herein, in any of the other Loan Documents or any Guaranty
(other than a default the performance or observance of which is dealt with
specifically elsewhere in this Article 7) unless (i) with respect to this
Agreement, such default is cured to Lender's satisfaction within twenty (20)
days after the sooner to occur of receipt of notice of such default from Lender
or the date on which such default first becomes known to Borrower and (ii) with
respect to any other Loan Document or Guaranty, such default is cured within any
applicable grace, cure or notice and cure period contained therein.
7.5. OTHER DEBTS. Borrower, any Subsidiary or any
Guarantor shall default in connection with any agreement for Debt exceeding Five
Hundred Thousand Dollars ($500,000) in principal amount with any creditor,
including Lender, which entitles said creditor to accelerate the maturity
thereof.
7.6. VOLUNTARY BANKRUPTCY. Borrower, any Subsidiary or any
Guarantor shall file a voluntary petition in bankruptcy or a voluntary petition
or answer seeking liquidation, reorganization, arrangement, readjustment of its
debts, or for any other relief under the Bankruptcy Code, or under any other act
or law pertaining to insolvency or debtor relief, whether state, Federal, or
foreign, now or hereafter existing; Borrower, any Subsidiary or any Guarantor
shall enter into any agreement indicating its consent to, approval of, or
acquiescence in, any such petition or proceeding; Borrower, any Subsidiary or
any Guarantor shall apply for or permit the appointment by consent or
acquiescence of a receiver, custodian or trustee of Borrower, any Subsidiary or
any Guarantor for all or a substantial part of its property; Borrower, any
Subsidiary or any Guarantor shall make an assignment for the benefit of
creditors; or Borrower, any Subsidiary or any Guarantor shall be unable or shall
fail to pay its debts generally as such debts become due, or Borrower, any
Subsidiary or any Guarantor shall admit, in writing, its inability or failure to
pay its debts generally as such debts become due.
7.7. INVOLUNTARY BANKRUPTCY. There shall have been filed
against Borrower, any Subsidiary or any Guarantor an involuntary petition in
bankruptcy or seeking liquidation, reorganization, arrangement, readjustment of
its debts or for any other relief under the Bankruptcy Code, or under any other
act or law pertaining to insolvency or debtor relief, whether state, federal or
foreign, now or hereafter existing; Borrower, any Subsidiary or any Guarantor
shall suffer or permit the involuntary appointment of a receiver, custodian or
trustee of Borrower, any Subsidiary or any Guarantor or for all or a substantial
part of its property; or Borrower, any Subsidiary or any Guarantor shall suffer
or permit the issuance of a warrant of attachment, execution or similar process
against all or any substantial part of the property of Borrower, any Subsidiary
or any Guarantor; or any motion, complaint or other pleading is filed in any
bankruptcy case of any person or entity other than Borrower and such motion,
complaint or pleading seeks the consolidation of Borrower's assets and
liabilities with the assets and liabilities of such person or entity.
24
7.8. JUDGMENTS. A final judgment or order for the payment
of money is rendered against Borrower, any Subsidiary or any Guarantor in the
amount of Five Hundred Thousand Dollars ($500,000) or more (exclusive of amounts
covered by insurance) and either (x) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order, or (y) a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect for any period of thirty (30) consecutive
days.
7.9. DISAVOWAL OF CERTAIN OBLIGATIONS. Any Person (other
than Lender) party to a Guaranty or Subordination Agreement shall disavow its
obligations thereunder; or any such Guaranty or Subordination Agreement is
alleged to be, or determined by any governmental authority to be, invalid,
unenforceable or otherwise not binding on any Person party thereto (other than
Lender), in whole or in part.
7.10. MATERIAL ADVERSE CHANGE. There shall occur any
Material Adverse Change.
7.11. CHANGE OF CONTROL, ETC. If any Person, or group of
Persons acting in concert, which Person(s) were not shareholder(s) of record on
the Closing Date, shall control Borrower subsequent to the Closing Date.
8. REMEDIES. Upon the occurrence or existence of any Event of
Default, or at any time thereafter, without prejudice to the rights of Lender to
enforce its claims against Borrower for damages for failure by Borrower to
fulfill any of its obligations hereunder, subject only to prior receipt by
Lender of payment in full of all Obligations then outstanding in a form
acceptable to Lender, Lender shall have all of the rights and remedies set forth
below, and it may exercise any one, more, or all of such remedies, in its sole
discretion, without thereby waiving any of the others; provided, however, that,
in addition to the foregoing, if the Event of Default is in respect of Section
7.6 or 7.7, then, automatically, immediately upon such Event of Default
occurring, without necessity of any further action on Lender's part, all
commitments of Lender hereunder and under all other Loan Documents shall
terminate, and all Obligations shall be immediately due and payable.
8.1. ACCELERATION OF THE OBLIGATIONS. Lender, at its
option, may terminate all commitments of Lender hereunder and under all other
Loan Documents, and declare all of the Obligations to be immediately due and
payable, whereupon the same shall become immediately due and payable without
presentment, demand, protest, notice of nonpayment or any other notice required
by law relative thereto, all of which are hereby expressly waived by Borrower,
anything contained herein to the contrary notwithstanding. If any note of
Borrower to Lender constituting Obligations, including, without limitation, any
of the Notes, shall be a demand instrument, however, the recitation of the right
of Lender to declare any and all Obligations to be immediately due and payable,
whether such recitation is contained in such note or in this Agreement, as well
as the recitation of the above events permitting Lender to declare all
Obligations due and payable, shall not constitute an election by Lender to waive
its right to demand payment under a demand at any time and in any event, as
Lender in its discretion may deem appropriate. Thereafter, Lender, at its
option,
25
may, but shall not be obligated to, accept less than the entire amount of
Obligations due, if tendered, provided, however, that unless then agreed to in
writing by Lender, no such acceptance shall or shall be deemed to constitute a
waiver of any Event of Default or a reinstatement of any commitments of Lender
hereunder or under all other Loan Documents.
8.2. DEFAULT. If Lender so elects, by further written
notice to Borrower, Lender may increase the rate of interest charged on the
Notes then outstanding for so long thereafter as Lender further shall elect by
an amount not to exceed the Default Rate.
8.3. OTHER REMEDIES. Unless and except to the extent
expressly provided for to the contrary herein, the rights of Lender specified
herein shall be in addition to, and not in limitation of, Lender's rights under
any statute or rule of law or equity, or under any other provision of any of the
Loan Documents, or under the provisions of any other document, instrument or
other writing executed by Borrower or any third party in favor of Lender, all of
which may be exercised successively or concurrently.
8.4. SET OFF. Lender may also set off any or all funds of
Borrower then on deposit with Lender against the Obligations.
9. MISCELLANEOUS.
9.1. WAIVER. Each and every right granted to Lender under
this Agreement, or any of the other Loan Documents, or any other document
delivered hereunder or in connection herewith or allowed it by law or in equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of Lender to exercise, and no delay in exercising, any right shall operate
as a waiver thereof, nor shall any single or partial exercise by Lender of any
right preclude any other or future exercise thereof or the exercise of any other
right. No waiver by Lender of any Default Condition or Event of Default shall
constitute a waiver of any subsequent Default Condition or Event of Default.
9.2. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF GEORGIA.
9.3. SURVIVAL. All representations, warranties and
covenants made herein and in the Loan Documents shall survive the execution and
delivery hereof and thereof. The terms and provisions of this Agreement shall
continue in full force and effect, notwithstanding the payment of one or more of
the Notes or the termination of the Line of Credit, until all of the Obligations
have been paid in full and Lender has terminated this Agreement in writing.
26
9.4. ASSIGNMENTS. No assignment hereof or of any Loan
Document shall be made by Borrower without the prior written consent of Lender.
Lender may assign, or sell participations in, its right, title and interest
herein and in the Loan Documents at any time hereafter without notice to or
consent of Borrower.
9.5. COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which when fully executed shall be an original,
and all of said counterparts taken together shall be deemed to constitute one
and the same agreement.
9.6. REIMBURSEMENT. Borrower shall pay to Lender on demand
all out-of-pocket costs and expenses that Lender pays or actually incurs in
connection with the negotiation, preparation, consummation, enforcement and
termination of this Agreement and the other Loan Documents, including, without
limitation: (a) attorneys' fees and paralegals' fees and disbursements of
outside counsel; (b) costs and expenses (including outside attorneys' and
paralegals' fees and disbursements) for any amendment, supplement, waiver,
consent or subsequent closing in connection with the Loan Documents and the
transactions contemplated thereby; (c) sums paid or incurred to pay for any
amount or to take any action required of Borrower under the Loan Documents that
Borrower fails to pay or take; and (d) after an Event of Default, costs and
expenses (including attorneys' and paralegals' fees and disbursements) paid or
incurred to obtain payment of the Obligations, enforce the provisions of the
Loan Documents or to defend any claim made or threatened against Lender arising
out of the transactions contemplated hereby (including, without limitation,
preparations for and consultations concerning any such matters). The foregoing
shall not be construed to limit any other provisions of the Loan Documents
regarding costs and expenses to be paid to Borrower. All of the foregoing costs
and expenses may, in the discretion of Lender, be charged to the Master Note.
Borrower will pay all expenses incurred by it in the transaction. In the event
Borrower becomes a debtor under the Bankruptcy Code, Lender's secured claim in
such case shall include interest on the Obligations and all fees, costs and
charges provided for herein (including, without limitation, reasonable
attorneys' fees actually incurred) all for the extent allowed by the Bankruptcy
Code.
9.7. SUCCESSORS AND ASSIGNS. This Agreement and Loan
Documents shall be binding upon and inure to the benefit of the successors and
permitted assigns of the parties hereto and thereto.
9.8. SEVERABILITY. If any provision this Agreement or of
any of the Loan Documents or the application thereof to any party thereto or
circumstances shall be invalid or unenforceable to any extent, the remainder of
such Loan Documents and the application of such provisions to any other party
thereto or circumstance shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
9.9. NOTICES. All notices, requests and demands to or upon
the respective parties hereto shall be deemed to have been given or made when
personally delivered or deposited in the mail, registered or certified mail,
postage prepaid, addressed as follows: (i) for Lender, care of the
27
address of Lender inscribed beneath its signature hereinbelow and (ii) for
Borrower, care of the address set forth as its Executive Office on the Borrower
Information Schedule (or to such other address as may be designated hereafter in
writing by the respective parties hereto) except in cases where it is expressly
provided herein or by applicable law that such notice, demand or request is not
effective until received by the party to whom it is addressed.
9.10. ENTIRE AGREEMENT: AMENDMENTS. This Agreement,
together with the remaining Loan Documents, constitute the entire agreement
between the parties hereto with respect to the subject matter hereof. Neither
this Agreement nor any Loan Document may be changed, waived, discharged,
modified or terminated orally, but only by an instrument in writing signed by
the party against whom enforcement is sought.
9.11. TIME OF ESSENCE. Time is of the essence in this
Agreement and the other Loan Documents.
9.12. INTERPRETATION. No provision of this Agreement or any
Loan Document shall be construed against or interpreted to the disadvantage of
any party hereto by any court or other governmental or judicial authority by
reason of such party having or being deemed to have structured or dictated such
provision.
9.13. LENDER NOT A JOINT VENTURER. Neither this Agreement
nor any Loan Document shall in any respect be interpreted, deemed or construed
as making Lender a partner or joint venturer with Borrower or as creating any
similar relationship or entity, and Borrower agrees that it will not make any
contrary assertion, contention, claim or counterclaim in any action, suit or
other legal proceeding involving Lender and Borrower.
9.14. JURISDICTION. BORROWER AGREES THAT ANY LEGAL ACTION
OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY LOAN DOCUMENT MAY BE BROUGHT
IN THE COURTS OF THE STATE OF GEORGIA OR THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION, ALL AS LENDER MAY ELECT. BY
EXECUTION OF THIS AGREEMENT, BORROWER HEREBY SUBMITS TO EACH SUCH JURISDICTION,
HEREBY EXPRESSLY WAIVING WHATEVER RIGHTS MAY CORRESPOND TO IT BY REASON OF ITS
PRESENT OR FUTURE DOMICILE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY OTHER
JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED OR REQUIRED BY LAW.
9.15. ACCEPTANCE. This Agreement, together with the other
Loan Documents, shall not become effective unless and until delivered to Lender
at its principal office in Atlanta, Xxxxxx County, Georgia and accepted in
writing by Lender at such office as evidenced by its execution hereof (notice of
which delivery and acceptance are hereby waived by Borrower).
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9.16. PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to
be made hereunder or under the Notes shall be stated to be due on a Saturday,
Sunday or any other day in which national banks within the State of Georgia are
legally authorized to close, such payment may be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest hereunder or under the Notes.
9.17. CURE OF DEFAULTS BY LENDER. If, hereafter, Borrower
defaults in the performance of any duty or obligation to Lender hereunder or
under any Loan Document, Lender may, at its option, but without obligation, cure
such default and any costs, fees and expenses incurred by Lender in connection
therewith including, without limitation, for the purchase of insurance, the
payment of taxes and the removal or settlement of liens and claims, shall be
deemed to be advances against the Master Note, whether or not this creates an
overadvance thereunder, and shall be payable in accordance with its terms.
9.18. RECITALS. All recitals contained herein are hereby
incorporated by reference into this Agreement and made part thereof.
9.19. ATTORNEY-IN-FACT. Borrower hereby designates,
appoints and empowers Lender irrevocably as its attorney-in-fact, effective
during any time that an Event of Default exists, either in the name of Borrower
or the name of Lender, at Borrower's cost and expense, to do any and all actions
which Lender may deem necessary or advisable to carry out the terms of this
Agreement or any other Loan Document upon the failure, refusal or inability of
Borrower to do so after ten (10) days' advance written notice, and in connection
therewith, to take any and all actions as Lender may deem necessary or desirable
to realize upon any Obligations; and Borrower hereby agrees to indemnify and
hold Lender harmless from any costs, damages, expenses or liabilities arising
against or incurred by Lender in connection therewith.
9.20. SOLE BENEFIT. The rights and benefits set forth in
this Agreement and the other Loan Documents are for the sole and exclusive
benefit of the parties hereto and thereto and may be relied upon only by them.
9.21. INDEMNIFICATION. Borrower will hold Lender, its
respective directors, officers, employees, agents, Affiliates, successors and
assigns harmless from and indemnify Lender, its respective directors, officers,
employees, agents, Affiliates, successors and assigns against, all loss,
damages, costs and expenses (including, without limitation, reasonable
attorney's fees, costs and expenses) actually incurred by any of the foregoing,
whether direct, indirect or consequential, as a result of or arising from or
relating to any "Proceedings" (as defined below) by any Person, whether
threatened or initiated, asserting a claim for any legal or equitable remedy
against any Person under any statute, case or regulation, including, without
limitation, any federal or state securities laws or under any common law or
equitable case or otherwise, arising from or in connection with this Agreement,
and any other of the transactions contemplated by this Agreement, except to the
extent such losses, damages, costs or expenses are due to the wilful misconduct
or gross negligence of Lender. As used herein, "Proceedings" shall mean actions,
suits or proceedings before
29
any court, governmental or regulatory authority and shall include, particularly,
but without limitation, any actions concerning Environmental Laws. At the
request of Lender, Borrower will indemnify any Person to whom Lender transfers
or sells all or any portion of its interest in the Obligations or participations
therein on terms substantially similar to the terms set forth above. Lender
shall not be responsible or liable to any Person for consequential damages which
may be alleged as a result of this Agreement or any of the transactions
contemplated hereby. The obligations of Borrower under this Section shall
survive the termination of this Agreement and payment in full of the
Obligations.
9.22. JURY TRIAL WAIVER. EACH OF BORROWER AND LENDER HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR
RELATED TO ANY OF THE LOAN DOCUMENTS, OBLIGATIONS OR THE COLLATERAL.
9.23. TERMINOLOGY. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural, and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement, and all references in this Agreement to Articles, Sections,
Subsections, paragraphs, clauses, subclauses or Exhibits shall refer to the
corresponding Article, Section, Subsection, paragraph, clause, subclause of, or
Exhibit attached to, this Agreement, unless specific reference is made to the
articles, sections or other subdivisions divisions of or Exhibit to, another
document or instrument. Wherever in this Agreement reference is made to any
instrument, agreement or other document, including, without limitation, any of
the Loan Documents, such reference shall be understood to mean and include any
and all amendments thereto or modifications, restatements, renewals or
extensions thereof. Wherever in this Agreement reference is made to any statute,
such reference shall be understood to mean and include any and all amendments
thereof and all regulations promulgated pursuant thereto. Whenever any matter
set forth herein or in any Loan Document is to be consented to or be
satisfactory to Lender, or is to be determined, calculated or approved by
Lender, then, unless otherwise expressly set forth herein or in any such Loan
Document, such consent, satisfaction, determination, calculation or approval
shall be in Lender's sole discretion, exercised in good faith and, where
required by law, in a commercially reasonable manner, and shall be conclusive
absent manifest error.
9.24. EXHIBITS. All Exhibits attached hereto are by
reference made a part hereof.
10. CONDITIONS PRECEDENT. Unless waived in writing by Lender at or
prior to the execution and delivery of this Agreement, the conditions set forth
below shall constitute express conditions precedent to any obligation of Lender
hereunder.
10.1. SECRETARY'S CERTIFICATE. Receipt by Lender of a
certificate from the Secretary (or Assistant Secretary) of Borrower, to be in
form and substance substantially similar to
30
the secretary's certificate set forth on Exhibit "E", certifying to Lender (i)
that appropriate resolutions have been entered into by the Board of Directors of
Borrower incident hereto and that the officers of Borrower whose signatures
appear hereinbelow, on the other Loan Documents, and on any and all other
documents, instruments and agreements executed in connection herewith, are duly
authorized by the Board of Directors of Borrower for and on behalf of Borrower
to execute and deliver this Agreement, the other Loan Documents and such other
documents, instruments and agreements, and to bind Borrower accordingly thereby,
and (ii) as to the existence and status of Borrower's articles of incorporation
and by-laws (including thereon, as attachments, true, correct and complete
copies thereof).
10.2. GOOD STANDING CERTIFICATES. Receipt by Lender of
certificates of good standing with respect to Borrower from the Secretaries of
State identified in Section 3.1, dated within thirty (30) days of the Closing
Date.
10.3. LOAN DOCUMENTS. Receipt by Lender of all the other
Loan Documents, including any Notes, together with any Guaranty and any
Subordination Agreement, each duly executed in form and substance acceptable to
Lender.
10.4. INSURANCE. Receipt by Lender of a certificate
respecting all insurance required to be maintained hereunder, together with
appropriate loss payee and additional insured endorsements thereto, favoring
Lender, all in form acceptable to Lender.
10.5. OPINION OF COUNSEL. Receipt by Lender of an opinion
of counsel from independent legal counsel to Borrower in substantially the form
of Exhibit "F".
10.6. NO DEFAULT. No Default Condition or Event of Default
shall exist and Borrower shall in all respects be in compliance with all of the
terms of the Loan Documents, as evidenced by its delivery of a Compliance
Certificate to such effect.
10.7. TELEPHONE INSTRUCTION LETTER. Receipt by Lender of
the Telephone Instruction Letter.
10.8. NO MATERIAL ADVERSE CHANGE. Lender shall have
determined that no Material Adverse Change shall have occurred.
10.9. OTHER. Receipt by Lender of such other documents,
certificates, instruments and agreements as shall be required hereunder or
provided for herein or as Lender or Lender's counsel may require in connection
herewith.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and Borrower has caused its seal to be affixed hereto, as of the day
and year first above written.
"LENDER"
WACHOVIA BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
----------------------------
Address for Notices:
Wachovia Bank, N.A.
Western Regional Corporate
000 Xxxxxxxxxx Xxxxxx - Xxxxx 000
Xxxxxxx, XX 00000
FAX: (000) 000-0000
"BORROWER"
IMNET SYSTEMS, INC. (SEAL)
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Signed and Attested
by Xxxxx X. Xxxxxx
as Chief Financial
Officer and Secretary
32
EXHIBITS
Exhibit A Borrower Information Schedule
Exhibit B Compliance Certificate
Exhibit C Master Note
Exhibit D Telephone Instructions Letter
Exhibit E Secretary's Certificate
Exhibit F Opinion of Counsel
