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EXHIBIT 10.40
[SEAFIRST BANK LOGO]
BORROWING AGREEMENT
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Loan. By accepting this agreement from AUTOMATED RETAIL SYSTEMS, INC., a
DELAWARE corporation ("Borrower"), the chief executive office of which is
located at 0000 X. XXXXXXX, XXXXXXX, XX 00000, Bank of America N.T. & S.A.,
doing business as Seafirst Bank (including its successors and/or assigns
"Bank") promises to lend to Borrower the principal amount of $475,000.00 (the
"Loan") on a revolving basis until JUNE 1, 1998, with no more than the lesser
of (i) the Borrowing Base (as defined below) or (ii) $475,000.00 to be
outstanding at any one time. Any one or more of the following persons are
authorized to request and direct disbursement of loan proceeds under this
agreement: Xxxx Xxxxxxxxx, Xxxx Xxxxxxxxx or Xxxxx Xxxxxxx.
Payment. In return, Borrower promises to pay to the order of Bank the principal
amount of $475,000.00, plus interest at a floating rate of the index (as
defined below) plus 1.00% per year, as the index may change from time to time,
calculated on the basis of actual number of days elapsed over a year of 360
days (together the "Obligations"), to be paid as follows: all outstanding
principal to be paid in full on JUNE 1, 1998, with all accrued interest to be
paid on the 1st day of each month, beginning the 1st day of JULY, 1997, and
upon maturity or acceleration of the Obligations. Bank is authorized to
automatically debit each required installment of principal and/or interest from
Borrower's checking account number 0000000 at Bank, or such other deposit
account at Bank as Borrower may authorize in the future. If a payment is 10
days or more late, Borrower, at Bank's option, will be charged 5.000% of the
regularly scheduled payment or $20.00, whichever is greater. Borrower shall pay
to Bank a loan fee of $1,500.00 upon execution of this agreement.
Collateral. To secure the Obligations, Borrower grants to Bank a security
interest in Borrower's accounts, general intangibles, documents, instruments,
chattel paper, deposit accounts, inventory, including but not limited to all
electronic cash registers, all point of sale products and all scanner products,
now owned and hereafter acquired by debtor, including all attachments,
accessions, parts, and additions thereto, and all replacements thereof, all
whether now owned or hereafter acquired, and all proceeds and products thereof,
and any such other collateral as may be granted to Bank in a document referring
to this agreement (the "Collateral").
Conditions. Bank shall have no obligation to advance funds to Borrower until:
o Borrower and every other party whose signature is required on this
agreement has signed this agreement.
o Borrower has delivered to Bank all signed documents necessary to perfect
Bank's security interests granted in this agreement.
o Bank has received proof satisfactory to Bank that all insurance required
under this agreement is in effect.
Covenants. Borrower shall deliver to Bank:
o copies of Borrower's annual tax returns, as soon as filed with Internal
Revenue Service.
o within 30 days of quarter end, Borrower's quarterly balance sheet and income
statement, which may be internally prepared, certified by an officer of
Borrower as true and correct.
o within 90 days of each fiscal year end, Guarantor's year-end balance sheet,
income statement, and statement of cash flows, which shall be audited on a
basis consistent with prior statements, and to which shall be attached a
consolidated balance sheet, income statement, and statement of cash flows which
shall include the financial results of Automated Retail Systems, Inc.
o such other financial information as Bank may reasonably request from time
to time.
Borrower shall also:
o maintain replacement value insurance on all tangible Collateral against all
risks, casualties, and losses through extended coverage or otherwise, with such
policy or policies naming Bank as loss payee, as its interests may appear.
o give Bank prompt written notice of any material adverse change in Borrower's
financial condition.
o keep accurate and complete books, accounts, and records, and during normal
business hours, as often as Bank may reasonably request, permit Bank's
authorized agents or employees to have access to Borrower's premises and
financial records, and to make copies or abstracts of such records.
o maintain at all times a minimum Tangible Net Worth of not less than
$500,000.00 and not permit Borrower's total indebtedness, which is not
subordinated in a manner satisfactory to Bank, to exceed 2.50 times Borrower's
Tangible Net Worth.
o maintain at all times an excess of current assets over current liabilities
of not less than $300,000.00.
o deliver to Bank a monthly Borrowing Base Certificate with month end accounts
receivable aging.
Remedies. If Borrower violates any promise of this agreement; or Borrower
defaults under any other agreement with Bank; or if anything should happen
which significantly impairs Borrower's financial condition, the value of the
Collateral, or Bank's prospects for repayment of the Obligations, Bank may
refuse to make any further advances of funds to Borrower, may immediately
demand payment in full of all Obligations (which, at Bank's option, shall bear
interest from the date of such demand at a rate 4% in excess of the rate
otherwise applicable under this agreement), and may use any one or more of its
remedies given under this agreement or by the laws of the State of Washington.
Borrower shall, if demanded by Bank, pay all of Bank's costs, expenses, and
attorneys' fees (including the cost of in-house counsel) incurred in collecting
the Obligations, or arising out of the transaction reflected by this agreement,
which is governed by the laws of Washington. If neither party elects or has the
right to elect arbitration under the following paragraph, any lawsuit relating
to this agreement may be brought in a court located in King County, Washington,
or at a Bank's option where necessary to obtain jurisdiction over any Borrower,
guarantor, or Collateral.
Arbitration. Any dispute relating to this agreement (in contract or tort)
shall be settled by arbitration if requested by Bank, Borrower, or any other
party to the dispute (such as a guarantor); provided, however, that both Bank
and Borrower must consent to a request for arbitration relating to an
obligation secured by real property or a marine vessel. The arbitration
proceedings shall be held in Seattle, Washington by the American Arbitration
Association under its commercial rules of arbitration, by a single arbitrator.
The United States Arbitration Act will apply.
Borrowing Agreement (Automated Register Systems, Inc.; R/C No. 88211/SA1212AR)
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Judgment upon the arbitration award may be entered in any court having
jurisdiction. Commencement of a lawsuit shall not constitute a waiver of the
right of any party to request arbitration if the lawsuit is contested. Likewise,
any party may exercise self-help remedies such as setoff, foreclosure,
repossession, or sale of any collateral before, after, or during arbitration
without waiving the right to request arbitration. At Bank's option, foreclosure
under a deed of trust may be made judicially (as a mortgage) or nonjudicially
(by power of sale).
Definitions. For purposes of this agreement, terms defined in the Washington
version of the Uniform Commercial Code, R.C.W. Section 62A.9-101, et seq.
("UCC"), and not otherwise defined in this agreement, shall have the meaning
given in the UCC; and an accounting term not otherwise defined in this
agreement shall have the meaning assigned to it under generally accepted
accounting principles. "Borrowing Base" shall have the meaning given in the
separate "Borrowing Plan" executed by Borrower and Bank previously to or in
conjunction with the execution of this agreement, the terms of which are
incorporated into this agreement by this reference. "Index" shall mean the
floating commercial loan reference rate of Bank, publicly announced from time
to time as its "prime rate," with each change in the Index to be effective on
the date the prime rate changes. "Tangible Net Worth" shall mean the excess of
total assets over total liabilities, excluding, however, from the determination
of total assets (a) all assets which should be classified as intangible assets
(such as goodwill, patents, trademarks, copyrights, franchises, and deferred
charges, including unamortized debt discount and research and development
costs), (b) treasury stock, (c) cash held in a sinking or other similar fund
established for the purpose of redemption or other retirement of capital stock,
(d) to the extent not already deducted from total assets, reserves for
depreciation, depletion, obsolescence, or amortization of properties and other
reserves or appropriations of retained earnings which have been or should be
established in connection with Borrower's business, and (e) any revaluation or
other write-up in book value of assets subsequent to the fiscal year of
Borrower last ended at the date Tangible Net Worth is being measured.
Amendments. This agreement can only be amended in writing, signed by the party
to be bound by such amendment. If Borrower shall enter into, or has entered
into, other borrowing agreements with Bank, each such agreement shall
supplement the other, and Borrower must comply with each such agreement
independently, unless otherwise agreed in writing by Bank. ORAL AGREEMENTS OR
ORAL COMMITMENTS TO LOAN MONEY, TO EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING
REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON LAW.
This agreement is dated JUNE 3, 1997.
Bank:
SEAFIRST BANK
By [SIG]
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Title Vice President
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Borrower:
AUTOMATED RETAIL SYSTEMS, INC.
By: [SIG]
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Title: Vice President and Director
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Certificate of Authority. I am an officer of AUTOMATED RETAIL SYSTEMS, INC., a
DELAWARE corporation, and certify under penalty of perjury that (1) its
execution of this agreement has been authorized either (a) by resolution of its
board of directors adopted at meeting where a quorum was present or by written
consent of all directors or (b) by virtue of its articles of incorporation and
bylaws as now in effect; that (2) the person signing above on behalf of
Borrower is authorized to do so, and is further authorized to sign any other
loan documents or agreements between Bank and Borrower and any amendments to
this and such other agreements, and to designate additional individuals who are
authorized to request and direct advances under any credit facility of Bank to
Borrower; and such person's signature above is such person's true signature,
and that such person is Borrower's duly elected ________________________.
Officer's Signature: [SIG]
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Printed Name: XXXXXXX X. XXXXXX
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Title: Vice President and Director
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