Exhibit 10.28
BUSINESS LOAN AGREEMENT
Principal: $1,000,000.00
Loan Date: November 1, 2000
Maturity: June 5, 2001
Borrower: Exigent International, Inc.
0000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Lender: The Huntington National Bank
Tampa
000 X. Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
This agreement has been delivered to lender and accepted by lender in the state
of Ohio.
THIS BUSINESS LOAN AGREEMENT dated 11/7/2000, is made and executed between
Exigent International, Inc. ("Borrower") and THE HUNTINGTON NATIONAL BANK
("Lender") on the following terms and conditions. Borrower has received prior
commercial loans from Lender or has applied to Lender for a commercial loan or
loans or other financial accommodations, including those which may be described
on any exhibit or schedule attached to this Agreement ("Loan"). Borrower
understands and agrees that: (A) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements as
set forth in this Agreement, and (B) all such Loans shall be and remain subject
to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of 11/7/2000, and shall continue in
full force and effect until such time as all of Borrower's Loans in favor of
Lender have been paid in full, in principal, interest, costs, expenses,
attorneys' fees, and other fees and charges, or until such time as the parties
may agree in writing to terminate this Agreement.
Collateral Records. Borrower does now, and at all times hereafter
shall, keep correct and accurate records of the Collateral, all of
which records shall be available to Lender or Lender's representative
upon demand for inspection and copying at any reasonable time. The
above is an accurate and complete list of all locations at which
Borrower keeps or maintains business records concerning Borrower's
collateral.
Collateral Schedules. Concurrently with the execution and delivery of
this Agreement, Borrower shall execute and deliver to Lender schedules
of in form and substance satisfactory to the Lender. Thereafter
supplemental schedules shall be delivered according to the following
schedule:
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following
documents for the Loan: (1) the Note; (2) Security Agreements granting
to Lender security interests in the Collateral; (3) financing
statements perfecting Lender's Security Interests; (4) evidence of
insurance as required below; (5) guaranties; (6) together with all such
Related Documents as Lender may require for the Loan; all in form and
substance satisfactory to Lender and Lender's counsel.
Borrower's Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the execution and delivery of this Agreement, the Note and
the Related Documents. In addition, Borrower shall have provided such
other resolutions, authorizations, documents and instruments as Lender
or its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all
fees, charges, and other expenses which are then due and payable as
specified in this Agreement or any Related Document.
Representations and Warranties. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and
correct.
No Event of Default. There shall not exist at the time of any Advance a
condition which would constitute an Event of default under this
Agreement or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a corporation for profit which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of Delaware. Borrower is
duly authorized to transact business in. Borrower maintains an office
at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000. Unless Borrower has
designated otherwise in writing, the principal office is the office at
which Borrower keeps its books and records including its records
concerning the Collateral. Borrower will notify Lender of any change in
the location of Borrower's principal office.
Assumed Business Names. Borrower has filed or recorded all documents or
filings required by law relating to all assumed business names used by
Borrower. Excluding the name of Borrower, the following is a complete list
of all assumed business names under which Borrower does business: None
Authorization. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by
all necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of
Borrower's articles of incorporation or organization, or bylaws, or any
agreement or other instrument binding upon Borrower or (2) any law,
governmental regulation, court decree, or order applicable to Borrower
or to Borrower's properties.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so
long as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Lender in writing of
(1) all material adverse changes in Borrower's financial condition, and
(2) all existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with
accounting principles acceptable to Lender, applied on a consistent
basis, and permit Lender to examine and audit Borrower's books and
records at all reasonable times.
Financial Statements. Furnish Lender with the following:
(1) Annual Statements. As soon as available, but in no event
later than ninety (90) days after the end of each fiscal
year, Borrower's balance sheet and income statement for the
year ended, audited by a certified public accountant
satisfactory to Lender.
(2) Interim Statements. As soon as available, but in no event
later than 45 days after the end of each fiscal quarter,
Borrower's balance sheet and profit and loss statement for
the period ended, prepared by Borrower.
(3) Tax Returns. As soon as available, but in no event later
than one-hundred-twenty (120) days after the applicable
filing date for the tax reporting period ended, Federal and
other governmental tax returns, prepared by a certified
public accountant satisfactory to Lender.
All financial reports required to be provided under this Agreement
shall be prepared in accordance with GAAP, applied on a consistent
basis, and certified by Borrower as being true and correct.
Loan Proceeds. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender in
writing.
Taxes, Charges and Liens. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every
kind and nature, imposed upon Borrower or its properties, income, or
profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon any
of Borrower's properties, income, or profits.
Performance. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower
and Lender. Borrower shall notify Lender immediately in writing of any
default in connection with any agreement.
Operations. Maintain executive management personnel with substantially
the same qualifications and experience as the present executive
management personnel; provide written notice to Lender of any change in
executive and management personnel; conduct its business affairs in a
reasonable and prudent manner.
Compliance with Governmental Requirements. Comply with all laws,
ordinances, and regulations, now or hereafter in effect, of all
governmental authorities applicable to the conduct of Borrower's
properties, businesses and operations, and to the use or occupancy of
the Collateral, including without limitation, the Americans With
Disabilities Act. Borrower may contest in good faith any such law,
ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Borrower has notified Lender
in writing prior to doing so and so long as, in Lender's sole opinion,
Lender's interests in the Collateral are not jeopardized. Lender may
require Borrower to post adequate security or a surety bond, reasonably
satisfactory to Lender, to protect Lender's interest.
Inspection. Permit employees or agents of Lender at any reasonable time
to inspect any and all Collateral for the Loan or Loans and Borrower's
other properties and to examine or audit Borrower's books, accounts,
and records and to make copies and memoranda of Borrower's books,
accounts, and records. If Borrower now or at any time hereafter
maintains any records (including without limitation computer generated
records and computer software programs for the generation of such
records) in the possession of a third party, Borrower, upon request of
Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of
any records it may request, all at Borrower's expense.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the collateral or if Borrower fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate on any Collateral and paying all costs
for insuring, maintaining and preserving any Collateral. All such expenditures
incurred or paid by Lender for such purposes will then bear interest at the rate
charged under the Note from the date incurred or paid by Lender to the date of
repayment by Borrower. All such expenses will become a part of the Indebtedness
and, at Lender's option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any installment
payments to become due during either (1) the term of any applicable insurance
policy; or (2) the remaining term of the Note; or (C) be treated as a balloon
payment which will be due and payable at the Note's maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently
engaged, (2) cease operations, liquidate, merge, transfer, acquire or
consolidate with any other entity, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business, or
(3) pay any dividends on borrower's stock (other than dividends payable
in its stock), provided, however that notwithstanding the foregoing,
but only so long as no Event of Default has occurred and is continuing
or would result from the payment of dividends, if Borrower is a
"Subchapter S Corporation" (as defined in the Internal Revenue Code of
1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the
shareholders to pay income taxes and make estimated income tax payments
to satisfy their liabilities under federal and state law which arise
solely from their status as Shareholders of a Subchapter S Corporation
because of their ownership of shares of Borrower's stock, or purchase
or retire any of Borrower's outstanding shares or alter or amend
Borrower's capital structure.
Cessation of Advances. If Lender has made any commitment to make any
Loan to Borrower, whether under this Agreement or under any other
agreement, Lender shall have no obligation to make Loan advances or to
disburse Loan proceeds if: (1) Borrower or any guarantor is in default
under the terms of this Agreement or any other agreement that Borrower
or any guarantor has with Lender; (2) Borrower or any guarantor dies,
becomes incompetent or becomes insolvent, files a petition in
bankruptcy or similar proceedings, or is adjudged a bankrupt; (3) there
occurs a material adverse change in Borrower's financial condition, in
the financial condition of any guarantor, or in the value of any
collateral securing any Loan; or (4) any guarantor seeks, claims or
other wise attempts to limit, modify or revoke such guarantor's
guaranty of the Loan or any other loan with Lender, or (5) Lender in
good xxxxx xxxxx itself insecure, even though no Event of Default shall
have occurred.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in
all Borrower's accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Borrower holds jointly with someone else
and all accounts Borrower may open in the future. However, this does not include
any XXX or Xxxxx accounts, or any trust accounts for which the grant of a
security interest would be prohibited by law. Borrower authorizes lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Borrower fails to make any payment when due under the
Loan.
Other Default. Borrower fails to comply with any other term, obligation,
covenant or condition contained in this Agreement or in any of the Related
Documents.
False Statements. Any representation or statement made by Borrower to
Lender is false in any material respect.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the Indebtedness or any Guarantor dies or
becomes incompetent, or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
Change in Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
Insecurity. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement immediately will terminate
(including any obligation to make further Loan Advances or disbursements), and
at Lenders option, all Indebtedness immediately will become due and payable, all
without notice of any kind to Borrower, except that in the case of an Event of
Default of the type described in the "Insolvency" subsection above, such
acceleration shall be automatic and not optional. In addition, Borrower shall
have all the rights and remedies provided in the Related Documents or available
at law, in equity, or otherwise. Except as may be prohibited by applicable law,
all of Lender's rights and remedies shall be cumulative and may be exercised
singularly or concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Borrower or of any Grantor shall not
affect Lender's right to declare a default and to exercise its rights and
remedies.
REVOLVING LOAN RATE. Except upon a Default, the interest rate for the
Revolving Loan may be adjusted from time to time as follows:
1. If Exigent's most recent Form 10Q report furnished to Lender indicates the
following ratios: Total Liabilities to Total Net Worth less than 1.50 to 1.00
and Working Capital in excess of $2,500,000.00, then the interest rate otherwise
stated for the Revolving Loan shall be reduced by 0.50% for the subsequent
calendar quarter.
2. If Exigent's most recent Form 10Q report furnished to Lender indicates the
following ratios: Total Liabilities to Total Net Worth less than 1.00 to 1.00
and Working Capital in excess of $3,500,000.00, then the interest rate otherwise
stated for the Revolving Loan shall be reduced by 0.75% for the subsequent
calendar quarter.
ADDITIONAL PROVISIONS. Borrower shall provide to Lender the following:
1. Quarterly, 10Q reports of Exigent and management reports including
balance sheet, income statement and statement of cash flows, conforming to
GAAP and prepared on a consolidated basis.
2. Quarterly, contract status report detailing government and
non-government contracts, contract value, estimated profit, estimated
costs, costs to date, cost to complete, percent complete, actual earnings,
and amount billed.
3. Annually, projected financial statements for the next fiscal year
prepared on not less than a quarterly basis.
FINANCIAL COVENANTS AND RATIOS. Comply with the following covenants and ratios:
1. Maximum Total Liabilities divided by Tangible Net Worth of 3.50 to 1.00
at December 31, 1999 and quarterly thereafter.
2. Maximum Total Liabilities divided by Tangible Net Worth of 3.10 to 1.00
at June 30, 2000 and quarterly thereafter.
3. Maximum Total Liabilities divided by Tangible Net Worth of 2.75 to 1.00
at December 31, 2000 and quarterly thereafter.
4. Minimum Working Capital of $2,000,000.00 at September 30, 2000 and each
quarter thereafter.
5. Minimum Current Ratio of 1.30 to 1.00 at September 30, 2000 and each
quarter thereafter.
6. Minimum Debt Service Coverage 1.20 times at fiscal year end and December
31, 2000 and annually thereafter.
CURE PERIOD (FOR DEFAULTS). Notwithstanding the section of this Agreement
captioned EFFECT OF AN EVENT OF DEFAULT, Lender may exercise any or all of its
rights and remedies as set forth in said section and otherwise only if Borrower
shall fail to perform, comply with or observe or shall otherwise breach any
covenant or agreement contained in this Agreement or any related Loan Document
and such failure or breach shall continue for more than Ten (10) days after the
earlier of the date on which Borrower shall have first become aware of such
failure or breach or Lender shall have first notified Borrower of such failure
or breach.
ADDENDUM TO BUSINESS LOAN AGREEMENT. An exhibit titled "Addendum to Business
Loan Agreement" is attached to this Agreement and by this reference is made part
of this Agreement just as if all the provisions, terms and conditions of the
Exhibit had been fully set forth in this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
Advance. The word "Advance" means a disbursement of Loan funds made, or
to be made, to Borrower or on Borrower's behalf on a line of credit or
multiple advance basis under the terms and conditions of this
Agreement.
Agreement. The word "Agreement" means this Business Loan Agreement, as
this Business Loan Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this
Business Loan Agreement from time to time.
Borrower. The word "Borrower" means Exigent International, Inc.,
and all other persons and entities signing the Note in whatever
capacity.
Collateral. The word "Collateral" means all property and assets granted
as collateral security for a Loan, whether real or personal property,
whether granted directly or indirectly, whether granted now or in the
future, and whether granted in the form of a security interest,
mortgage, collateral mortgage, deed of trust, assignment, pledge,
chattel mortgage, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional
sale, trust receipt, lien, charge, lien or title retention contract,
lease or consignment intended as a security device, or any other
security or lien interest whatsoever, whether created by law, contract,
or otherwise.
Event of Default. The words "Event of Default" mean any of the Events
of Default set forth in this Agreement in the Default section of this
Agreement.
GAAP. The word "GAAP" means generally accepted accounting principles.
Grantor. The word "Grantor" means each and all of the persons or
entities granting a Security Interest in any Collateral for the Loan,
including without limitation all Borrowers granting such a Security
Interest.
Guarantor. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to
Lender, including without limitation a guaranty of all or part of the
Note.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the
Related Documents. In addition, and without limitation, the term
"Indebtedness" includes all amounts identified in the Revolving Line of
Credit and Future Advances paragraphs as contained in one or more of
the Related Documents.
Lender. The word "Lender" means THE HUNTINGTON NATIONAL BANK, its
successors and assigns.
Loan. The word "Loan" means any and all loans and financial
accommodations from Lender to Borrower whether now or hereafter
existing, and however evidenced, including without limitation those
loans and financial accommodations described herein or described on any
exhibit or schedule attached to this Agreement from time to time.
Note. The word "Note" means the Note executed by Borrower in the
principal amount of $1,000,000.00 dated 11/7/2000, together with all
renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
Related Documents. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Loan.
Security Agreement. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract,
or otherwise, evidencing, governing, representing, or creating a
Security Interest.
Security Interest. The words "Security Interest" mean, without
limitation, any and all types of collateral security, present and
future, whether in the form of a lien, charge, encumbrance, mortgage,
deed of trust, security deed, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien or title
retention contract, lease or consignment intended as a security device,
or any other security or lien interest whatsoever whether created by
law, contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED 11/7/2000.
BORROWER:
EXIGENT INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx Executive V.P./Treasurer of Exigent International, Inc.
LENDER:
THE HUNTINGTON NATIONAL BANK
X /s/ Xxxx Rochester
Authorized Signer
