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EXHIBIT 10(e)
LOAN AGREEMENT
AGREEMENT, dated January 27, 1998, by and between Citation Computer
Systems, Inc. (the "COMPANY") and SOUTHWEST BANK OF ST. LOUIS, a banking
institution organized under the laws of the State of Missouri, (the "BANK").
WHEREAS the COMPANY desires to borrow from the BANK sums not to exceed TWO
MILLION THREE HUNDRED FORTY-SEVEN THOUSAND FIVE HUNDRED ELEVEN AND 00/100
DOLLARS ($2,347,511.00) and the BANK is willing, subject to and upon the terms
and conditions herein set forth, to lend such sums to the COMPANY.
NOW, THEREFORE, IT IS AGREED:
ARTICLE I -AMOUNT AND TERMS OF LOANS
Section 1.1 - TERM LOAN
Subject to and upon the terms and conditions herein set forth, the BANK
shall lend to the COMPANY and the COMPANY shall borrow from the BANK an
aggregate principal sum of THREE HUNDRED FORTY-SEVEN THOUSAND FIVE HUNDRED
ELEVEN AND 00/100 DOLLARS ($347,511.00). Such borrowing by the COMPANY hereunder
shall be made at the offices of the BANK, St. Louis, Missouri.
Section 1.1 (a) - LINE OF CREDIT LOAN
The BANK shall lend to the COMPANY, subject to and upon the terms and
conditions herein set forth, at any time or from time to time on or before
January 27, 1998, sums not to exceed TWO MILLION AND 00/100 DOLLARS
($2,000,000.00) in the aggregate outstanding at any one time; provided, however,
that BANK may extend such termination date for successive one year periods at
its sole option by notice to such effect at least twenty-four hours prior to
February 1, 2000, and provided, further, however, that all such borrowings from
time to time shall be payable on demand and that should demand be made at any
time prior to February 1, 2000, then COMPANY shall have no further rights to
borrow, nor shall BANK have any obligations to lend further sums under this
Section 1.1 (a).
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Section 1.2 - TERM LOAN NOTE
The borrowing under Section 1.1 shall be evidenced by two promissory notes
payable to the order of the BANK in the amount of TWO HUNDRED THIRTY-THREE
THOUSAND FIVE HUNDRED EIGHTY-SIX AND 00/100 ($233,586.00) and ONE HUNDRED
THIRTEEN THOUSAND NINE HUNDRED TWENTY-FIVE AND 00/100 ($113,925.00)
substantially in the form of Exhibit A attached hereto (the "Term Notes"),
which shall be dated January 27, 1998, (the "Closing Date"), and shall be duly
executed by the COMPANY with blanks appropriately completed in conformity
herewith. The $233,586.00 Note shall be payable in thirty-six (36) consecutive
monthly payments commencing March 1, 1998, the amount of SEVEN THOUSAND THREE
HUNDRED NINETY-THREE AND 30/100 DOLLARS ($7 ,393.30) each which shall first be
applied to interest, computed as set forth in Section 1.3 below, and then to
principal. The $233,586.00 Note shall mature on February 1, 2001, at which time
all unpaid principal, together with all accrued and unpaid interest, shall be
due and payable. The $113,925.00 Note shall be payable in twenty-four (24)
consecutive monthly payments commencing March 1, 1998, the amount of FIVE
THOUSAND ONE HUNDRED EIGHTY-NINE AND 08/100 DOLLARS ($5,189.08) each which
shall first be applied to interest, computed as set forth in Section 1.3 below,
and then to principal. The $113,925.00 Note shall mature on February 1, 2000,
at which time all unpaid principal, together with all accrued and unpaid
interest, shall be due and payable.
Section 1.2(a) - LINE OF CREDIT NOTE
The obligation of the COMPANY to repay the aggregate unpaid principal
amount of all line of credit loans by the BANK from time to time shall be
evidenced by a single promissory note to the order of the BANK substantially in
the form of Exhibit B attached hereto (the "Line of Credit Note") which shall be
dated as of January 27, 1998, and duly executed by the COMPANY with blanks
appropriately filled in conformity herewith.
Anything herein and in the Line of Credit Note to the contrary
notwithstanding, the line of credit loans shall terminate and the balance due on
the Line of Credit Note shall become due and payable on demand or if demand be
not made, then on February 1, 2000, as same may be extended at the option of the
BANK pursuant to Section 1.1(a) above. In the event of such extension the
COMPANY shall execute a renewal line of credit note and such other documents and
instruments as the BANK shall request.
The Term Notes and the Line of Credit Note and as any of same may be from
time to time amended, modified or renewed are referred to herein collectively as
the "Notes."
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Section 1.3 - INTEREST
(a) The Term Notes shall bear interest from date thereof to maturity on
the unpaid principal balance thereof at the rate per annum equal to
eight and one-half percent (8.50%), per annum, fixed, and after
maturity by acceleration or otherwise at a rate equal to twelve and
one-half percent (12.5%), per annum, fixed.
(b) The Line of Credit Note shall bear interest from date thereof to
maturity on the unpaid principal balance thereof at the rate per annum
equal to zero percent (0.00%) in excess of the from time to time prime
rate of the BANK, said interest rate to change simultaneously with
each change in the prime rate of the BANK, and after maturity by
acceleration or otherwise at a rate equal to four percent (4.00%) in
excess of the prime rate of the BANK effect when such balance is due
and payable.
(c) For purposes of this Agreement, the "prime rate" of the Bank shall
mean the rate of interest announced from time to time by the BANK as
its "prime rate," such term being used only as a reference rate and
not necessarily representing the lowest or other rate charged to any
particular customer of the BANK. In the event the BANK ceases to use
the term "prime rate" in setting a base rate of interest for
commercial loans, the term "prime rate" as used herein shall be
determined by reference to the rate used by the BANK as its base rate
of interest for commercial loans.
ARTICLE II - PREPAYMENTS
Section 2.1 - OPTIONAL PREPAYMENTS
The COMPANY shall have the right from time to time to prepay the Notes at
any time in whole or in part in accordance with the terms of the Notes. Any such
prepayment may be made without premium. Any partial prepayment shall first be
applied to interest with the balance, if any, to be applied to payment of
principal in the inverse order of maturity.
ARTICLE III - CONDITIONS PRECEDENT TO BORROWING
The obligation of the BANK to lend the amount of TWO MILLION THREE HUNDRED
FORTY-SEVEN THOUSAND FIVE HUNDRED ELEVEN AND 00/100 DOLLARS ($2,347,511.00) to
the COMPANY hereunder shall be subject to the following conditions precedent in
each instance:
Section 3.1 - BORROWING AUTHORIZATIONS
At or prior to the date of the first borrowing hereunder the COMPANY shall
provide to the BANK the following:
(a) a copy of the COMPANY'S Certificate of Incorporation;
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(b) a copy of evidence reflecting that the COMPANY is presently in good
standing as a Missouri corporation and that the COMPANY has paid all
current franchise and/or license fees that may be required by State
law;
(c) certified copies of the resolution(s) of the Board of Directors of the
COMPANY authorizing the execution, delivery and performance of this
Loan Agreement, the borrowings hereunder, the Notes and the Security
Interests, Pledges or other collateral instruments contained in
Article IV.
(d) such additional documents as the BANK may reasonably request.
Section 3.2 - CORRECTNESS OF WARRANTIES
At the time of the Closing Date, all representations and warranties
contained herein or otherwise made to the BANK in connection herewith, shall be
true and correct, with the same effect as though such representations and
warranties had been made on and as of the Closing Date.
Section 3.3 - COLLATERAL SECURITY DOCUMENTS
At the time of the Closing Date, the BANK shall receive all the instruments
and documents then required to be delivered pursuant to Article IV and the same
shall be in full force and effect.
Section 3.4 - NOTES
At the time of the Closing Date, the BANK shall have received the Notes in
accordance with Section 1.2 and 1.2(a).
Section 3.5 - NO EVENT OF DEFAULT
At the time of the Closing Date, there shall exist no Event of Default as
defined in Article VIII and no condition, event or act which, with notice or
lapse of time, or both, would constitute an Event of Default.
Section 3.6 - PROCEEDINGS: RECEIPT OF DOCUMENTS
All corporate and legal proceedings and all documents and instruments in
connection with the borrowings herein referenced and pursuant to Articles III
and IV shall be satisfactory in form and substance to the BANK.
Section 3.7 - OPINION OF COUNSEL
The BANK shall have received from legal counsel for the COMPANY a closing
opinion in the form attached hereto as Exhibit C.
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ARTICLE IV - SECURITY INTERESTS AND PLEDGES
Section 4.1 - SECURITY INTEREST IN ACCOUNTS RECEIVABLE
To collateralize the Notes and all other indebtedness and liabilities of
the COMPANY to the BANK, whether now existing or hereafter arising and whether
direct, indirect, contingent, liquidated or unliquidated, the COMPANY shall
cause to be duly executed and delivered to the BANK, a Security Agreement in the
form attached hereto as Exhibit D (the "Accounts Security Agreement"), all
attendant financing statements and other appropriate documentation, granting to
the BANK a first perfected security interest in all of the accounts receivable
(Accounts) and other property described therein presently existing and
hereafter acquire of the COMPANY and the proceeds thereof.
Section 4.2 - SECURITY INTEREST IN INVENTORY
To collateralize the Notes and all other indebtedness and liabilities of
the COMPANY to the BANK, whether now existing or hereafter arising and whether
direct, indirect, contingent, liquidated or unliquidated, the COMPANY shall
cause to be duly executed and delivered to the BANK, a Security Agreement, in
the form attached herein as Exhibit E ("Inventory Security Agreement") all
attendant financing statements and other appropriate documentation, granting to
the BANK a first perfected security interest in all inventory and other property
described therein presently owned or hereafter acquired of the COMPANY and one
proceeds and products thereon.
Section 4.3 - SECURITY INTEREST IN EQUIPMENT
To collateralize the Notes and all other indebtedness and liabilities of
the COMPANY to the BANK, whether now existing or hereafter arising and whether
direct, indirect, contingent, liquidated or unliquidated, the COMPANY shall
cause to be duly executed and delivered to the BANK an Equipment Security
Agreement in the form attached hereto as Exhibit F (the "Equipment Security
Agreement"), all attendant financing statements and other appropriate
documentation, granting to the BANK a first perfected security interest in all
equipment and other property described therein presently owned or hereafter
acquired by the COMPANY and the proceeds thereof.
The Accounts and Inventory Security Agreements and Equipment Security
Agreement are referred to herein collectively as the "Security Agreements."
Section 4.4 - OTHER COLLATERAL PLEDGED
To collateralize the Notes and all other indebtedness and liabilities of
the COMPANY to the BANK, whether now existing or hereafter arising and whether
direct, indirect, contingent liquidated or unliquidated, the COMPANY shall cause
to be duly executed and delivered to the BANK, Collateral Pledge Agreements,
Security Agreements, Financing Statements, Deeds of Trust and other appropriate
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documentation, covering the property, rights and items set forth in Schedule 4.4
attached hereto.
ARTICLE V -REPRESENTATIONS AND WARRANTIES
In order to induce the BANK to enter into this Agreement and to extend
credit to the PARENT COMPANY hereunder, the PARENT COMPANY and the SUBSIDIARY
COMPANY make the following representations and warranties, which shall survive
the execution and delivery of this Agreement and the Notes:
Section 5.1 - CORPORATE STATUS
(a) The PARENT COMPANY is a duly organized and validly existing
corporation in good standing under the laws of the State of Missouri
with perpetual corporate existence, and has the corporate power and
authority to own its properties and to transact the business in which
it is engaged or presently proposes to engage. The PARENT COMPANY is
duly qualified as a foreign corporation and in good standing in all
states, if any, where the nature of its business or the ownership or
use of property requires such qualification. All franchise and/or
license fees required by Missouri law have been paid by the PARENT
COMPANY.
Section 5.2 - SUBSIDIARIES
The COMPANY has 2 subsidiaries, Health Micro Data Systems, Inc. Citation
Professional Services, Inc., each of which is wholly-owned by the COMPANY
(collectively the "Subsidiaries", or individually, a "Subsidiary"), and no other
subsidiaries. The COMPANY has the corporate power to own the Subsidiaries and
each of the Subsidiaries is duly organized and a validly existing corporation
under the laws of its State of incorporation with perpetual corporate existence
and has the corporate power and authority to own its properties and to transact
the business in which it engages or proposes to engage.
Section 5.3 - CORPORATE POWER AND AUTHORITY
The COMPANY has the corporate power to borrow and to execute, deliver and
carry out the terms and provisions of this Agreement, the
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Notes and all instruments and documents delivered by it pursuant to this
Agreement, and the COMPANY has taken or caused to be taken all necessary
corporate action (including, but not limited to, the obtaining of any consent of
stockholders required by law or by the Articles of Incorporation or By-Laws of
the COMPANY) to obtain the loan hereunder and to authorize the execution,
delivery and performance of this Agreement, the borrowings hereunder, the making
and delivery of the Notes, and the execution, delivery, and performance of the
instruments and documents delivered by it or to be delivered by it pursuant to
this Agreement.
Section 5.4 - NO VIOLATION OF AGREEMENTS
The COMPANY is not in default under any indenture, mortgage, deed of trust,
agreement or other instrument to which it is a party or by which it may be
bound. Neither the execution and delivery of this Agreement, the Notes or any of
the instruments and documents to be executed and delivered and/or continued
pursuant to this Agreement, nor the consummation of the transactions herein and
therein contemplated, nor compliance with the provisions hereof or thereof will
violate any law or regulations, or any order or decree of any court or
governmental instrumentality, or will conflict with, or result in the breach of,
or constitute a default under any indenture, mortgage, deed of trust, agreement
or other instrument to which the COMPANY is a party or by which it may be bound,
or result in the creation of imposition of any lien, charge or encumbrance upon
any of the property of the COMPANY thereunder, or violate any provision of the
Articles or Certificate of Incorporation, By-Laws or any capital stock
provisions of the COMPANY.
Section 5.5 - NO BURDENSOME AGREEMENTS
The COMPANY is not a party to any agreement or instrument or subject to any
corporate restriction (including any restriction set forth in its Articles or
Certificate of Incorporation) materially and adversely affecting the operation,
business, properties or financial condition of the COMPANY.
Section 5.6 - NO LITIGATION
Except as set forth in Schedule 5.6 there are no actions, suits or
proceedings pending, or to the knowledge of the COMPANY threatened, instituted
against or affecting the COMPANY before any court, arbitrator or governmental or
administrative body or agency which might result in any material adverse change
in the business, operations, properties or assets or in the condition, financial
or otherwise, of the COMPANY. The COMPANY is not in default in any material
respect under any applicable statute, rule, order, decree or regulation of any
court, arbitrator or governmental body or agency having jurisdiction over the
COMPANY.
Section 5.7 - GOOD TITLE TO PROPERTIES
The COMPANY has good and marketable title to all its properties and assets
subject to no liens, mortgages, pledges, security interest,
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encumbrances or charges of any kind, except such as provided under the
provisions of this Agreements in favor of the BANK and as set forth in Schedule
5.7 attached hereto.
Section 5.8 - FINANCIAL STATEMENTS
The COMPANY has furnished to the BANK financial statements for the fiscal
year ended March 31, 1997, including the Balance Sheet as of such date and the
related Statement "of Income and Retained Earnings and a consolidated Statement
of Changes in Financial Position for the two years then ended (collectively the
"Financial Statements"), which Financial Statements have been audited by the
independent public accounting firm of Price Waterhouse, LLP.
The Financial Statements (including in each case any related schedules and
notes) present fairly, in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, the financial
position of the COMPANY as at the dates of such balance sheets and the results
of operations and changes in financial position for the periods of the Financial
Statements.
The Balance Sheets as of March 31, 1997, contained in the Financial
Statements, reflect all material liabilities, contingent or otherwise, of the
COMPANY as at such date, and, since March 31, 1997, there have been no changes
in the business, properties or condition (financial or otherwise) of the COMPANY
from that reflected on such Balance Sheets and in the schedules and notes
thereto other than changes in the ordinary course of business, the effect of
which have not been adverse to the COMPANY.
Section 5.9 - TRADEMARKS, PATENTS, ETC.
The COMPANY possesses all the trademarks, trade names, copyrights, patents,
licenses, or rights in any thereof, adequate for the conduct of its business as
now conducted and presently proposed to be conducted, without known conflict
with the rights or claimed rights of others.
Section 5.10 - TAX LIABILITY
The COMPANY has filed all tax returns which are required to be filed, and
has paid all taxes, interest or penalties which have become due pursuant to such
returns or pursuant to any assessment received by it. The Federal income tax
liability of the COMPANY has been audited by the Internal Revenue Service to
fiscal year-end 1993.
Section 5.11 - GOVERNMENTAL ACTION
No action or permission of, or filing with, any governmental or public body
or authority (other than normal reporting requirements) is required to
authorize, or is otherwise required in connection with, the execution, delivery
and performance of this Agreement, the Notes or any of the instruments or
documents to be delivered pursuant to this Agreement.
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Section 5.12 - DISCLOSURE
Neither the Schedules attached hereto, nor the Financial Statements
referred to in Section 5.8 nor any certificate, statement, report or other
document furnished to the BANK by the COMPANY in connection herewith or in
connection with any transaction contemplated hereby, nor this Agreement contain
any untrue statement of a material fact nor omit to state any material fact
necessary in order to make the statements contained therein not misleading.
Section 5.13 - REGULATIONS U AND X
No part of the proceeds of the loans referenced herein will be used to
purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any margin stock (within the meaning of Regulations U and X
of the Board of Governors of the Federal Reserve System) or to extend credit to
others for the purpose of purchasing or carrying any margin stock. If requested
by the BANK, the COMPANY, will furnish to the BANK statements in conformity with
the requirements of Federal Reserve Form U-1.
Section 5.14 - COMPLIANCE WITH ERISA
The COMPANY shall comply with all requirements of the Employment Retirement
Income Security Act of 1974, as amended from time to time ("ERISA") make
contributions to all employee plans in a timely manner and in an amount
sufficient to comply with the requirements of ERISA, notify the BANK within
thirty (30) days of receipt by the COMPANY of any notice of the institution of
any proceeding or other action which may result in the termination of any plan.
Section 5.15 - HAZARDOUS SUBSTANCES
(a) All assets and other properties of the COMPANY are free from any
asbestos, asbestos containing material, petroleum (including crude oil or any
fraction thereof), natural gas or synthetic gas, including mixtures thereof and
whether liquified or not, or other Hazardous Materials (as defined below and
that the assets and other properties of the COMPANY are not in violation of any
laws, regulations or orders concerning Hazardous Materials.
(b) No assets and other properties of the COMPANY are listed or proposed
for listing or threatened to be listed on the National Priorities List by the
Environmental Protection Agency or on any registry or list maintained by any
state or local agency, department or entity regarding Hazardous Materials, and
that there have been no discussions between the COMPANY or its agents, employees
or attorneys and state, federal or local officials concerning the possibility of
such listings.
(c) There has been no storage, disposal, discharge, deposit, injection,
dumping, leaking, spilling, placing or escape of any
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Hazardous Materials on, in, under or from the assets or other properties of
the COMPANY. The COMPANY agrees that it will not permit the storage, disposal,
discharge, deposit, injection, dumping, leaking, spilling, placing or escape of
any Hazardous Material on, in or around the Assets of other properties of the
COMPANY now or at any future time.
(d) The COMPANY shall comply with any and all laws, regulations or orders
with respect to the discharge and removal of Hazardous Material, shall pay
immediately when due the cost of removal of any such Hazardous Material, and
shall keep the assets and other properties of the COMPANY free of any lien
imposed pursuant to such laws, regulations or orders. The COMPANY shall
indemnify the BANK and hold it harmless from and against all loss, cost, damage
and expense (including, without limitation, reasonable attorneys' fees and
costs incurred in the investigation, defense and settlement of claims) that the
BANK may incur as a result of or in connection with the assertion against the
COMPANY of any claim relating to the presence of removal of any Hazardous
material or contaminant referred to in this Section, or compliance with any
federal, state or local regulations relating thereto.
(e) As used herein, the term "Hazardous Material" shall mean any asbestos,
flammable substances, explosives, radio active materials, PCB-laden oil,
hazardous materials, pollutants, contaminants, toxic substances, pollution or
related materials from time to time specified as such in, or regulated under any
federal, state or local laws, ordinances, rules, regulations or policies
governing use, spillage, leakage, dumping, storage, treatment, transportation,
manufacture, refinement, handling, production or disposal of any hazardous
substance (as defined in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601(14) as amended from time to
time, and the regulations promulgated thereunder), or any hazardous waste (as
defined in the Resource Conservation and Recovery Act of 1976 42 U.S.C. Section
6903(5), as amended from time to time, and the regulations promulgated
thereunder), petroleum (including crude oil or any fraction thereof), and
natural gas or synthetic gas, including mixtures thereof and whether liquified
or not.
ARTICLE VI - AFFIRMATIVE COVENANTS
The COMPANY covenants and agrees that, until the Notes, together with
interest and all its other indebtedness and obligation to the BANK under this
Agreement, are paid in full, and the BANK'S commitment hereunder is terminated,
unless specifically waived in writing by the BANK:
Section 6.1 - FINANCIAL STATEMENTS AND OTHER INFORMATION
The COMPANY shall furnish to the BANK:
(a) As soon as practicable and in any event within 30 days after the
close of each Quarter, an unaudited (i) balance sheet of the COMPANY
whose quarter shall have so ended, and (ii) profit and loss statement
of the COMPANY.
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(b) As soon as practicable and in any event within 90 days after the close
of each fiscal year of the COMPANY, a certified audited balance sheet
and a profit and loss statement of the COMPANY whose fiscal year shall
have then ended as at the end of and for the fiscal year just closed,
setting forth corresponding figures of the previous fiscal year in
comparative form and on a consistent basis (except for changes made in
accordance with generally accepted accounting principles which are
shown by appropriate notes and/or schedules) all in reasonable detail.
(c) The COMPANY shall furnish to the BANK promptly copies of all financial
statements and reports that the COMPANY sends to its shareholders and
copies of all financial statements and regular, periodic or special
reports (including forms 10-K, 10-Q, and 8-K) that the COMPANY may
make to, or file with the SEC.
(d) Promptly upon the commencement thereof, written notice of any
litigation, including arbitrations, and of any proceedings before any
governmental agency which would, if successful, materially adversely
affect the COMPANY or where the amount involved exceeds $100,000.00
and
(e) With reasonable promptness, such other information respecting the
business, operations and financial condition of the COMPANY as the
BANK may from time to time reasonably request.
The BANK, upon prior notice to the COMPANY, is hereby authorized to deliver
a copy of any financial statement or any other information relating to the
business, operations or financial condition of the COMPANY which may be
furnished to it or come to its attention pursuant to this Agreement or
otherwise, to any regulatory body or agency having jurisdiction over the BANK
or, to any person which shall, or shall have any right or obligation to, succeed
to all or any part of the BANK'S interest in the Notes, this Agreement and any
security herein provided for or otherwise securing the Notes.
Section 6.2 - INSPECTION BY BANK
Bank shall have the right to periodically inspect the books and records of
the Borrower (including its journals, orders, receipts and correspondence which
relates to its Accounts) and to discuss its affairs, finances and Accounts and
operations with its directors, officers, employees and agents and its
independent public accountants. The Bank shall assess an audit fee based on the
Bank's then audit rate (which rate is presently $450 per day) plus expenses for
each such audit; Provided, however, that prior to the occurrence of a Default or
an Event of Default, Bank will be limited to performing 2 such audits during
each fiscal year of the company.
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Section 6.3 - PAY INDEBTEDNESS TO BANK AND PERFORM OTHER COVENANTS
The COMPANY shall (a) make full and timely payment of the principal of and
interest and premium, if any, on the Notes and all other indebtedness of the
COMPANY to the BANK, whether now existing or hereafter arising and whether
direct, indirect, contingent, liquidated or unliquidated, and (b) duly comply
with all the terms and covenants contained in each of the instruments and
documents given to the BANK in connection with or pursuant to this Agreement,
all at the times and places and in the manner set forth therein.
Section 6.4 - DEMAND DEPOSIT ACCOUNTS AND LOCK BOX PROCEDURE
The COMPANY shall maintain all its demand deposit accounts with the BANK. A
lock box procedure will be maintained with BANK in form satisfactory to BANK.
Section 6.5 - NET WORKING CAPITAL AND NET WORTH
The COMPANY will maintain at all times a net working capital ratio of not
less than 1.50X and the COMPANY shall also limit the ratio of debt to capital
funds of less than or equal to 1.0 to 1 and the capital funds shall not be less
than NINE MILLION AND 00/100 DOLLARS ($9,000,000.00). All of the above
accounting and financial terms shall be determined in accordance with generally
accepted accounting principles except that the term "capital funds" shall
include any indebtedness which is expressly subordinated to all indebtedness of
the COMPANY to the BANK in a manner satisfactory to the BANK.
Section 6.6 - INSURANCE
(a) COMPANY shall (i) keep all of its properties fully insured at all
times with responsible insurance carriers satisfactory to the BANK
against loss or damage by fire and other hazards, (ii) maintain
adequate insurance at all times with responsible insurance carriers
satisfactory to the BANK against liability on account of damage to
persons and property and under all applicable workmen's compensation
laws, and (iii) maintain adequate insurance covering other risks as
the BANK may reasonably request with responsible insurance carriers
satisfactory to the BANK. The BANK shall be named as loss payee on all
such hazard insurance policies and an additional named insured on such
liability policies and such policies shall be payable to the BANK and
the COMPANY as their interest appear. Such policies shall not be
cancelable without the giving of ten (10) days prior written notice to
the BANK nor shall any act or omission by the COMPANY invalidate the
obligation of the insurer to the BANK. A duplicate original or
certificate of each such policy of insurance shall be, delivered by
the COMPANY to the BANK upon the request of the BANK. All recoveries
under any such
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policy of insurance shall be applied first to the payment of interest
due on unpaid principal and the remainder shall be applied to the
prepayment of installments of principal in the inverse order of their
maturities pursuant to the Notes. For the purpose of this Section
6.6(a), insurance shall be deemed adequate if the same is not less
extensive in coverage and amount than is customarily maintained by
other persons engaged in the same or similar business similarly
situated.
(b) The COMPANY shall, from time to time upon request of the BANK,
promptly furnish or cause to be furnished to the BANK evidence, in
form and substance satisfactory to the BANK, of the maintenance of all
insurance required by this Section 6.6 to be maintained, including,
but not limited to such originals or copies as the BANK may request of
policies, certificates of insurance, riders, and endorsements relating
to such insurance and proof of premium payments.
Section 6.7 - PROPERTIES IN GOOD CONDITION
The COMPANY shall keep its properties in good repair, working order and
condition and, from time to time, make all needful and proper repairs, renewals,
replacements, additions and improvements thereto, so that the business carried
on may be properly and advantageously conducted at all times in accordance with
prudent business management.
Section 6.8 - MAINTENANCE OF BUSINESS
The COMPANY will continue its business and maintain its corporate existence
and its right to transact the business in which it is engaged in good standing.
Section 6.9 - TAXES AND CLAIMS
The COMPANY shall duly pay and discharge (a) all taxes, assessments and
governmental levies and charges upon or against the COMPANY or its properties or
assets prior to the date on which penalties attach thereto, unless and to the
extent that such taxes are being diligently contested in good faith and by
appropriate proceedings and appropriate reserves therefor have been
established, and, if requested by the BANK, indemnity satisfactory to the BANK
has been furnished by the COMPANY to the BANK; and, upon request of the BANK,
the COMPANY shall furnish or cause to be furnished to the BANK copies of all
tax bills or assessments evidencing payment of the amounts due thereunder; and
(b) all lawful claims, whether for labor, materials, supplies, services or
anything else which might or could, if unpaid, become a lien or charge upon the
properties or assets of the COMPANY, unless and to the extent only that the
same are being diligently contested in good faith and by appropriate
proceedings and appropriate reserves there for have been established, and, if
requested by the BANK, indemnity satisfactory to the BANK has been furnished by
the COMPANY to the BANK.
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Section 6. 10 - BOOKS AND RESERVES
The COMPANY shall:
(a) maintain, at all times, true and complete books, records and accounts
in which true and correct entries shall be made of its transactions in
accordance with generally accepted accounting principles consistently
applied and consistent with those applied in the preparation of the
financial statements referred to in Section 5.8; and
(b) by means of appropriate entries, not less often than at the end of
each month, reflect in its accounts and in all financial statements
furnished pursuant to Section 6.1 proper liabilities and reserves for
all taxes and proper reserves for depreciation, renewals and
replacements, obsolescence and amortization of its properties and bad
debts, all in accordance with generally accepted accounting principles
consistently applied, as above described.
Section 6.11 - FURTHER ASSURANCES
The COMPANY shall, at its cost and expense, upon request of the BANK, duly
execute and deliver, or cause to be duly executed and delivered, to the BANK
such further instruments, and do and cause to be done such further acts as may
be necessary or proper in the opinion of the BANK, to carry out the provisions
and purposes of this Agreement.
Section 6.12 - ACCOUNTANTS
The COMPANY shall give the BANK prompt notice of any change of the
COMPANY'S independent certified public accountant and a statement of the
reasons for such change. The COMPANY must at all time utilize an independent
certified public accountant acceptable to the Bank.
ARTICLE VII - NEGATIVE COVENANTS
The COMPANY covenants and agrees that, until the Notes together with
interest and all its other indebtedness to the BANK under this Agreement are
paid in full, and the BANK'S commitment hereunder is terminated, the COMPANY
shall not, without the prior written consent of the BANK:
Section 7.1 - MORTGAGES, LIENS, ETC.
Create, incur, assume or suffer to exist any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind upon or defect in title to
or restriction upon the use of any of the COMPANY'S property or assets of any
character under conditional sales, finance lease of other title retention
agreements, except:
(a) Mortgages, liens, pledges and security interest in favor the BANK;
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(b) Mortgages, pledges, liens and security interest existing on the date
hereof which are described in Schedule 7.1 hereto, but not the
extension of coverage to other property, extension of maturity,
refunding or modification thereof in whole or in part except as
indicated on Schedule 7.1.
Section 7.2 - INDEBTEDNESS
Create, incur, assume or suffer to exist, contingently or otherwise, any
indebtedness, except:
(a) Indebtedness of the COMPANY under this Agreement;
(b) Unsecured current liabilities incurred in the ordinary course of
business other than those which are for money borrowed or are
evidenced by bonds, debentures, notes or other similar instrument;
(c) Indebtedness (not overdue) secured by mortgages, liens or security
interest permitted by Section 7.1;
(d) Indebtedness under guaranties or for other contingent liabilities to
the extent permitted by Section 7.3;
(e) Unsecured Subordinated Debt, meaning any unsecured obligation which is
expressly subordinated to the obligations of COMPANY to BANK in a form
satisfactory to the BANK and described in Schedule 7.2 attached
hereto;
(f) Indebtedness existing on the date hereof described in Schedule 7.2
attached hereto, but not the extension of maturity, increase,
refunding or modification thereof in whole or in part.
Section 7.3 - LOANS, INVESTMENTS AND GUARANTIES
Lend or advance money, credit or property to any person, or invest in (by
capital contribution or otherwise), or acquire any interest whatsoever in, or
purchase or repurchase the stock or indebtedness, or all or a substantial part
of the assets or properties, of any person, or guarantee, assume, endorse or
otherwise become responsible for (directly or indirectly or by an instrument
having the effect of assuring any person's payment or performance or capability)
the indebtedness, performance, obligations, stock or dividends of any person, or
agree to do any of the foregoing, except:
(a) Endorsement of negotiable instruments for deposit or collection in the
ordinary course of business;
(b) Investments in readily marketable, direct obligations of the
Government of the United States of America maturing not more than one
year after the date of purchase thereof, commercial
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paper rated double "A" or better and/or in Certificates of Deposit
issued by the BANK;
(c) investments representing the indebtedness of any person owing as a
result of the sale by the COMPANY in the ordinary course of business
of products or services or tangible personal property no longer
required in its business;
(d) Loans and advances to persons existing on the date hereof described in
Schedule 7.3 attached hereto, but not the extension of any maturity,
increase, refunding or modification thereof in whole or in part.
Section 7.4 - COMPANY
Amend the Articles of Incorporation by By-Laws or other organization or
similar agreements of the COMPANY or liquidate, dissolve or otherwise alter the
form of the COMPANY. The COMPANY further agrees that it shall not: (a) sell,
lease, transfer or otherwise dispose of (whether in one transaction or a series
of related transactions) any of its assets if the aggregate value thereof
represents a material part of the aggregate value of all its assets; (b)
consolidate with or merge into any other corporations, or permit another
corporation to merge into it, or acquire, in a transaction analogous in purpose
or effect to a merger or consolidation, all or substantially all of the
properties or assets of any other person; or, (c) enter into any arrangement,
directly or indirectly, with any person whereby the COMPANY shall sell or
transfer any property, real or personal, and used and useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property which the COMPANY intends to use for substantially
the same purpose or purposes as the property being sold or transferred.
Section 7.5 - CERTAIN SUBSIDIARY ACTION
Permit or suffer any SUBSIDIARY COMPANY to acquire, hold or own any shares
of stock of the PARENT COMPANY or to issue or sell any shares of its own stock
of any class to any person except the PARENT COMPANY or another SUBSIDIARY or to
pledge or assign or otherwise transfer any shares of its own stock of any class
or other securities to any person except to the PARENT COMPANY or to another
SUBSIDIARY COMPANY or to the BANK as collateral for any indebtedness or for any
other purpose.
Section 7.6 - MANAGEMENT
Make any material change the management of the COMPANY. Such material
change in management shall be deemed to have occurred upon a change in the Chief
Executive Officer, the President, or a majority of the members of the Board of
Directors.
Section 7.7 - MERGER, DISSOLUTION, SALE OF ASSETS
Enter into any transactions of merger or consolidation, or transfer, sell,
assign, lease, or otherwise dispose of all or a substantial part of its
properties or assets, or any of its notes or accounts receivable, or any assets
or properties necessary or desirable
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for the proper conduct of its business, or change the nature of its business,
or wind up, liquidate or dissolve, or agree to do any of the foregoing.
ARTICLE VIII - DEFAULTS AND REMEDIES
Section 8.1 - EVENTS OF DEFAULT
If any one or more of the following events (herein called "Events of
Default") shall occur for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected by operation of
law or pursuant to or in compliance with any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body), that is to say:
(a) If default shall be made in the due and punctual payment of the
installments of principal and interest or, any premium on, any one or
more of the Notes, or any other obligation or liabilities of the
COMPANY to the BANK whether direct, indirect, contingent, liquidated
or unliquidated when and as the same shall become due and payable,
whether at maturity or by acceleration or otherwise, such default
continuing for a period of ten days after notice thereof to the
COMPANY from the BANK;
(b) If default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement, or provisions contained in
Article III, IV, V, VI or VII of this Agreement or in any instrument
or document delivered to the BANK in connection with or pursuant to
this Agreement or if any such instrument or document shall terminate
or become void or unenforceable without the written consent of the
BANK and such, action shall not be cured within ten business days
after notice thereof to the COMPANY from the BANK;
(c) If default shall be made in the performance or observance of any other
covenant, agreement or provision contained in this Agreement and such
default shall xxxx continued for a period of ten business days after
notice thereof to the COMPANY from the BANK;
(d) If any representation or warranty or any other statement of fact
herein or in any writing, certificate, report or statement at any time
furnished to the BANK pursuant to or in connection with, this
Agreement, or otherwise, shall be false in any material respect or
misleading in any material respect;
(e) If the COMPANY shall admit in writing its inability to pay its debts
generally as they become due; file a petition in bankruptcy or
petition to take advantage of any insolvency act; make an assignment
for the benefit of its creditors; commence a proceeding for the
appointment of a receiver,
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trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer seeking
reorganization or arrangement or a similar relief under the Federal
bankruptcy laws or any other applicable law or statute of the United
States or any State;
(f) If the COMPANY shall be adjudged a bankrupt; or a court of competent
jurisdiction shall enter an order, judgment or decree appointing a
receiver, trustee, liquidator or conservator of the COMPANY or of the
whole or any substantial part of its properties, or approve a petition
filed against the COMPANY seeking reorganization or similar relief
under the Federal bankruptcy laws or any other applicable law or
statute of the United States or any State; or if, under the provisions
of any other law for the relief or aid of debtors, a court of
competent jurisdiction shall assume custody or control of the COMPANY
or of the whole or any substantial part of its properties; or if there
is commenced against the COMPANY and such proceeding or petition
remains undismissed for a period of 30 days; or if the COMPANY by any
act indicated its consent to, approval of or acquiescence in any such
proceeding or petition; or
(g) If a final judgment which, with other outstanding final judgments
against the COMPANY, exceeds an aggregate of $250,000.00 shall be
rendered against the COMPANY and within 30 days after entry thereof
the judgment shall not have been discharged or execution thereof
stayed pending appeal, or if within 30 days after the expiration of
any such stay, such judgment shall not have been discharged;
(h) If (i) any person or group other than Xxxxx X. X'Xxxxxxx and CFB
Venture Fund I, Inc. shall become the beneficial owner of 15% or more
of the voting stock of the Company or (ii) a majority of the present
members of the Board of Directors of the Company shall cease to be
members of the Board.
(i) Any default by the COMPANY under any indenture, mortgage, loan
agreement, note, deed of trust, agreement or other instrument to which
it or any of its properties is a party or by which it is bound or
failure by COMPANY in the due performance of any covenant contained in
any such document; or
(j) If this Agreement or any security or any other document delivered in
connection with a purchase to this Agreement shall at any time for any
reason cease to be in full force and effect or shall be declared to be
null and void, or the validity or enforceability of any thereof shall
be contested by the COMPANY or any other obligor thereunder, or the
transactions completed or contemplated hereunder shall be
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contested by the COMPANY, or if the COMPANY shall deny that it has any
or further liability or obligation hereunder;
Then, and in any such event, and at any time thereafter, if such or
any other Event of Default shall then be continuing, the BANK may, at
its option, declare the Notes to be due and payable and terminate its
commitment to lend any further funds pursuant hereto, whereupon the
maturity of the then unpaid balance of the Notes shall be accelerated
and the same, and all interest accrued thereon, as well as all other
liabilities and indebtedness of the COMPANY to the BANK whether now
existing or hereafter arising and whether direct, indirect,
contingent, liquidated or unliquidated, shall forthwith become due and
payable without presentment, demand, protest or notice of any kind,
all of which is hereby expressly waived, anything contained herein or
in the Notes to the contrary notwithstanding.
Section 8.2 - SUITS FOR ENFORCEMENT
In case any one or more Events of Default shall occur and be continuing,
the BANK may proceed to protect and enforce its rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein, in
the Notes or in any document or instrument delivered in connection with or
pursuant to this Agreement, or to enforce the payment of the Notes or any other
legal or equitable right or remedy.
Section 8.3 - RIGHTS AND REMEDIES CUMULATIVE
No right or remedy herein conferred upon the BANK is intended to be
exclusive of any other right or remedy contained herein, in the Notes or in any
instrument or document delivered in connection with or pursuant to this
Agreement, and every such right or remedy shall be cumulative and shall be in
addition to every other such right or remedy contained herein and therein or now
or hereafter existing at law or in equity or by statute, or otherwise.
Section 8.4 - RIGHT AND REMEDIES NOT WAIVED
No course of dealing between the COMPANY and the BANK or any failure or
delay on the part of the BANK in exercising any rights or remedies hereunder
shall operate as a waiver of any rights or remedies of the BANK and no single
or partial exercise of any rights or remedies hereunder shall operate as a
waiver or preclude the exercise of any other rights or remedies hereunder.
ARTICLE IX - MISCELLANEOUS
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Section 9.1 - FEES AND EXPENSES
The COMPANY shall pay all out-of-pocket costs and expenses, including
attorneys' fees and expenses, incurred by the BANK in connection with the
preparation of this Agreement, the Notes, any document or instrument delivered
pursuant to or in connection with this Agreement and all related documentation,
recording or filing fees. The COMPANY shall also pay all like costs and expenses
incurred by the BANK in connection with any amendments, waivers, renewals or
modifications of or made pursuant to this Agreement, the Notes, any document or
instrument delivered pursuant to or in connection with this Agreement and all
other related documentation.
Section 9.2 - COLLECTION COSTS
In the event that the BANK shall retain or engage an attorney or attorneys
to collect or enforce or protect their interests with respect to this Agreement,
or the Notes, or any instrument or document delivered pursuant to this
Agreement, or to protect the rights of any holder or holders with respect
thereto, including the representation of BANK or any holder or holders of any of
the Notes in connection with any bankruptcy, reorganization, receivership or any
other action affecting creditor's rights, and regardless of whether a suit or
action is commenced, the COMPANY shall pay all of the costs and expenses of such
collection, enforcement or protection, including reasonable attorneys' fees,
and the BANK or the holder of any of the Notes, as the case may be, may take
judgment for all such amounts, in addition to the unpaid principal balance of
the Notes and accrued interest thereon.
Section 9.3 - SETOFF
In addition to any rights now or hereafter granted under the provisions of
the any applicable law, rule or regulation and, not by way of limitation of
any such rights, upon the occurrence of (a) any Event of Default or (b) any
event which with the lapsed of time or the giving of notice, or both, would
constitute an Event of Default, the BANK is hereby authorized by the COMPANY, at
any time or from time to time, without notice to the COMPANY or to any other
person, any such notice being hereby expressly waived,
(a) to setoff and to appropriate and to apply any and all deposits
(general or special, time or demand, including, but not limited to,
indebtedness evidenced by certificates of deposit, in each case
whether matured or unmatured) and any other indebtedness at any time
held or owing by the BANK or such holder to or for the credit or
account of the COMPANY against and on account of the obligations and
liabilities of the COMPANY to such BANK or any holder of any of the
Notes, including, but not limited to, all claims of any nature or
description arising out of or connected with this Agreement, the Notes
or any instrument or document delivered in connection with or pursuant
to this Agreement, irrespective of whether or not (i) the BANK shall
have made any demand
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under this Agreement, the Notes or any instrument or document
delivered in connection with or pursuant to this Agreement, or (ii)
the BANK shall have declared the principal of and interest on any of
the Notes or any other amounts under this Agreement, any of the Notes
or any instrument or document delivered in connection with or pursuant
to this Agreement to be due and payable as permitted by Section 8.1
and by the terms of any of the Notes or any instrument or document
delivered in connection with or pursuant to this Agreement, and
although said obligations and liabilities, or any of them, shall be
contingent or unmatured, and
(b) pending any such setoff or appropriation or application, to hold the
amounts of all deposits as collateral and to return as unpaid any or
all checks drawn against such deposits that are presented for payment
as the BANK in its sole discretion shall decide.
Section 9.4 - MODIFICATION, WAIVERS AND APPROVALS
No modification or waiver of any provision of the Notes or of this
Agreement, no approvals required from the BANK and no consent by the BANK to any
departure therefrom by the COMPANY shall be effective unless such modification,
waiver, approval or consent shall be in writing and signed by duly authorized
officers of the BANK, and the same shall then be effective only for the period
and on the conditions and for the specific instances and purposes specified in
such writing. No notice to or demand on the COMPANY in any case shall entitle
the COMPANY to any other or further notice or demand in similar or other
circumstances.
ORAL AGREEMENTS OR COMMITMENTS TO LEND MONEY, EXTEND CREDIT OR TO FOREBEAR
FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH
DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWERS) AND US (CREDITOR) FROM
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING
TO MODIFY IT.
Section 9.5 - LAW
This Agreement shall be construed in accordance with and governed by
the laws of the State of Missouri.
Section 9.6 - NOTICES
All notice, requests, demands or other communications provided for herein
shall be in writing and shall be deemed to have been given when sent by prepaid
telegram or registered or certified mail, return receipt requested, addressed,
as the case may be, to the BANK, 0000 Xxxxx Xxxxxxxxxxxx, Xx. Xxxxx, Xxxxxxxx,
or to the COMPANY 000 Xxxxx Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx
or to such other person or address as any party shall designate to the others
from time to time in writing forwarded in like manner.
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Section 9.7 - BENEFIT OF AGREEMENT
This Agreement shall be binding upon and inure to the benefit of the
COMPANY and the BANK and their respective successors and assigns, and all
subsequent holders of the Notes, except that the obligation of the BANK to make
loans hereunder shall not inure to the benefit of any successors and assigns of
the COMPANY.
Section 9.8 - COMPLETION OF NOTES
The COMPANY hereby authorizes the BANK to complete the Notes in all
particulars in accordance with the terms of this Agreement and such Notes.
Section 9.9 - CAPTIONS
The captions of the various sections and paragraphs of this Agreement have
been inserted only for the purposes of convenience; such captions are not a
part of this Agreement and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Agreement.
Section 9.10 - PAYMENT DUE ON HOLIDAY
Whenever any payment to be made hereunder or on the Notes shall become due
and payable on a Saturday, Sunday or a legal holiday under the laws of the State
of Missouri, such payment may be made on the next succeeding business day and
such extension of time shall in such case be included in computing interest on
such payment.
Section 9.11 - REINSTATEMENT OF OBLIGATIONS
If at any time any payments on the Notes or any other indebtedness or
liabilities owed to the BANK theretofore made by the COMPANY or any other person
must be disgorged by the BANK for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the COMPANY or
other person), this Agreement and the BANK'S mortgages, liens, pledges and
security interests granted hereunder shall be reinstated as to all disgorged
payments as though such payment had not been made, and the COMPANY shall sign
and deliver to the BANK all documents and things necessary to reperfect all
terminated mortgages, liens, pledges and security interests.
Section 9.12 - SEVERABILITY
If any provision of this Agreement shall be held invalid by any court of
competent jurisdiction, such holding shall not invalidate any other provision
hereof.
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IN WITNESS WHEREOF, the COMPANY and the BANK have caused this Agreement to
be duly executed by their officers thereunto duly authorized as of the day and
year first above written.
ATTEST: CITATION COMPUTER SYSTEMS, INC.
/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------------------- -------------------------------------
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
Vice President and Controller President
SOUTHWEST BANK OF ST. LOUIS
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
Senior Vice President
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