EXHIBIT 10.15
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is entered into as of March
29, 2001, by and between OPTIO SOFTWARE, INC., a Georgia corporation
("Borrower"), and BRANCH BANKING AND TRUST COMPANY, a North Carolina banking
corporation ("Bank").
STATEMENT OF PURPOSE
Borrower has requested Bank, and Bank has agreed, subject to
the terms of this Agreement, to extend a Revolving Credit Loan to Borrower in an
initial maximum aggregate principal amount outstanding not to exceed FIVE
MILLION AND NO/100 DOLLARS ($5,000,000.00). Bank may, in its sole discretion,
without any obligation or requirement to do so, extend additional credit to
Borrower in excess of the initial maximum aggregate principal amount described
above, which additional credit shall be subject to the terms and conditions of
this Agreement and secured by the Loan Documents. In consideration of the
promises, representations and warranties contained in this Agreement, Borrower
and Bank enter into the following Agreement on the terms and conditions set out
below.
AGREEMENT
SECTION I. DEFINITIONS.
When used in this Agreement, the following terms shall have
the following meanings (defined terms shall have the same meaning when used in
either the singular or plural):
"ACCOUNTS," "CHATTEL PAPER," "CONTRACT RIGHTS," "DOCUMENTS,"
"EQUIPMENT," "GENERAL INTANGIBLES," "Goods," "INSTRUMENTS," "INVENTORY," and
"INVESTMENT PROPERTY" shall have the same respective meanings as are given to
those terms in the Uniform Commercial Code of Georgia, as amended.
"AFFILIATE" means a Person (other than a Subsidiary): (i)
which, directly or indirectly, through one or more intermediaries controls, or
is controlled by, or is under common control with, Borrower; (ii) which
beneficially owns or holds five percent (5%) or more of any class of the voting
stock of Borrower; or (iii) five percent (5%) or more of the voting stock (or in
the case of a Person which is not a corporation, five percent (5%) or more of
the equity interests) of which is beneficially owned or held by Borrower or a
Subsidiary. The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"AGREEMENT" means this Loan and Security Agreement, as it may
be amended or supplemented from time to time.
"AVAILABILITY" means, from time to time, the lesser of the (i)
Commitment, or (ii) Borrowing Base, reduced by the (A) aggregate principal
amount of the Revolving Credit Loan outstanding, and (B) Letter of Credit
Reserve.
"BORROWING BASE" means, based on the most recent Collateral
Report which as of the date of determination has been received by Bank, the
aggregate of 70% of the net amount of Eligible Receivables. Bank, in its
reasonable commercial discretion, may, from time to time apply a greater or
lesser percentage to Eligible Receivables in determining the Borrowing Base.
"BUSINESS DAY" shall mean each day when Bank is open for
business.
"CAPITAL LEASE" shall mean, as applied to any Person, any
lease of any property (whether real, personal or mixed) that would, in
accordance with GAAP, be required to be classified and accounted for as a
capital lease on a balance sheet of the lessee.
"CAPITAL LEASE OBLIGATION" shall mean, with respect to any
Capital Lease, the amount of the obligation of the lessee thereunder that would,
in accordance with GAAP, appear on a balance sheet as a liability of such lessee
in respect of such Capital Lease.
"CLOSING" shall have the meaning assigned to it in Paragraph
3.01.
"COLLATERAL" shall mean all of the property described in
Paragraph 4.02 and any other property, of every kind and nature, which is the
subject of any other agreement securing any part or all of the Obligations or
Other Obligations.
"COLLATERAL REPORT" means a report on Bank's standard form, or
in such other form as Bank may require, prepared by Borrower in accordance with
Bank's instructions, certified by the Chief Financial Officer or other
authorized officer of Borrower, regarding the Receivables of Borrower and other
Collateral, if applicable.
"COLLECTIONS" shall have the meaning assigned to it in
Paragraph 2.04(A).
"COMMITMENT" shall have the meaning assigned to it in
Paragraph 2.01(A).
"DEBT SERVICE REQUIREMENTS" shall mean, for any period, the
sum of (a) Interest Expense, (b) such portions of Long-Term Indebtedness which
are or were due and payable during such period, and (c) such portions of the
obligations under Capital Leases which are or were due and payable during such
period.
"DEFAULT RATE" shall mean the Prime Rate plus 5.00% per annum.
"EBIDTA" for any period shall mean, without duplication, (i)
Net Income; PLUS (ii) for such period any Interest Expense deducted in the
determination of Net Income; PLUS (iii) any income and franchise taxes actually
paid in cash or accrued by a Borrower and its Subsidiaries and deducted in the
determination of Net Income; PLUS (iv) amortization and depreciation and other
non-cash charges deducted in determining Net Income for such period;
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MINUS (v) the sum for such period of interest income, extraordinary gains, gains
from sales of assets (other than sales of inventory in the ordinary course of
business) and unrealized losses from changes in currency; PLUS (vi) non-cash
stock dividends.
"ELIGIBLE RECEIVABLES" means those Receivables of Borrower,
each of which meets the following requirements: (i) such Receivable arose in the
ordinary course of Borrower's business, (ii) the right to payment has been fully
earned by completed performance and, if Inventory is involved, such Inventory
has been shipped by Borrower (or if not shipped by Borrower, are held by
Borrower under a "xxxx and hold" arrangement approved in writing by Bank in its
sole discretion), (iii) the Receivable includes only that portion which is not
subject to any offset, defense, counterclaim, credit, allowance or adjustment
and is not represented by a deposit, (iv) Borrower's title to such Receivable is
absolute and is subject to no prior assignment, claim, lien or security
interest, (v) the full amount reflected on Borrower's books and on any invoice
or statement delivered to Bank related to such Receivable is owing to Borrower
and no partial payment has been made on such Account, (vi) such Receivable is
due and payable not more than thirty (30) days from invoice date and no more
than sixty (60) days (or such other period as Bank may by written notice to
Borrower approve) have elapsed from invoice date; (vii) such Receivable did not
arise out of a contract or purchase order containing provisions prohibiting
assignment thereof or the creation of a security interest therein, and Borrower
has received no note, trade acceptance, draft or other instrument with respect
to such Receivable or in payment of such Account, (viii) Borrower has received
no notice of the death of the account debtor or of the dissolution, termination
of existence, insolvency, bankruptcy, appointment of a receiver for any part of
the property of, or assignment for the benefit of creditors made by, the account
debtor, (ix) such Receivable is not payable by any Subsidiary or Affiliate of
Borrower, (x) such Receivable is not payable by any foreign Person (provided
that Persons present in possessions of the United States of America shall not be
considered foreign Persons), unless such Receivable is payable in the full
amount of the face value of such Receivable in United States dollars and is
supported by an irrevocable letter of credit in form and substance acceptable to
Bank and issued by a bank satisfactory to Bank (and, if requested by Bank, such
letter of credit or the proceeds thereof, as Bank shall require, have been
assigned to Bank); (xi) such Receivable is not payable by the United States of
America or any political subdivision or agency thereof, unless Bank and Borrower
have complied with the Assignment of Claims Act with respect to such Receivable;
(xii) such receivable is not payable by any State or any agency thereof, unless
Borrower has met any requirements deemed necessary by the Bank to perfect its
security interest in such receivable; (xiii) the account debtor for such
Receivable is not located in the State of New Jersey unless Borrower has filed a
Notice of Business Activities Report with the New Jersey Division of Taxation
for the then current year; (xiv) such Receivable is not, at the reasonable
commercial discretion of Bank, deemed doubtful for collection for whatever
reason. Additionally, in the event that an account debtor of Borrower shall have
fifty percent (50%) or more of his accounts with Borrower ninety (90) days or
more from invoice date, then all Receivables from such account debtor shall be
deemed ineligible.
"ERISA" shall have the meaning assigned to it in Paragraph
5.01(I).
"EVENT OF DEFAULT" shall have the meaning assigned to it in
Paragraph 7.01.
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"FIXED ASSETS" means any asset that would, in accordance with
GAAP, be required to be classified and accounted for as a capital asset.
"GAAP" means generally accepted accounting principles in the
United States consistently applied.
"INDEBTEDNESS" means, as to Borrower, all items of
indebtedness, obligation or liability for borrowed money, including without
limitation all sums evidenced by the Revolving Credit Promissory Note or
incurred pursuant to this Agreement, for the deferred purchase price of Fixed
Assets or services, or otherwise, whether matured or unmatured, liquidated or
unliquidated, direct or contingent, joint or several, including, but without
limitation: (i) all indebtedness guaranteed, directly or indirectly, in any
manner, or endorsed (other than for collection or deposit in the ordinary course
of business) or discounted with recourse; (ii) all indebtedness in effect
guaranteed, directly or indirectly, through agreements, contingent or otherwise,
to: (A) purchase such indebtedness; (B) purchase, sell or lease (as lessee or
lessor) property, products, materials or supplies or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such indebtedness or to assure the owner of the indebtedness against loss; or
(C) supply funds to or in any other manner invest in the debtor; (iii) all
indebtedness secured by (or for which the holder of such indebtedness has a
right, contingent or otherwise, to be secured by) any mortgage, deed of trust,
pledge, lien, security interest or other charge or encumbrance upon property
owned or acquired subject thereto, whether or not the liabilities secured
thereby have been assumed; (iv) Capital Lease Obligations; (v) current
liabilities in respect of unfunded vested benefits under plans covered by ERISA
and the regulations issued thereunder; or (vi) obligations under acceptance
facilities.
"INTEREST EXPENSE" shall mean, for any period, the total
interest expense of Borrower (including interest expense attributable to Capital
Leases), determined in accordance with GAAP.
"LAWS" means all ordinances, statutes, rules, regulations,
orders, injunctions, writs or decrees of any government or political subdivision
or agency thereof, or any court or similar entity established by any authority
thereof, including, without limitation, the Environmental Protection Act, the
Occupational Safety and Health Act, the Resource Conservation and Recovery Act,
the Hazardous and Solid Waste Amendments of 1984, the Comprehensive
Environmental, Response, Compensation and Liability Act of 1980, and the
Superfund Reauthorization and Amendments Act of 1986, the Toxic Substances
Control Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air
Act, the Securities and Exchange Act of 1934, all as amended from time to time,
and all rules and regulations issued under any of such laws.
"LETTER OF CREDIT OBLIGATIONS" means all obligations of
Borrower and any Affiliate or Subsidiary of Borrower to repay Bank all amounts
subject to advance, or advanced, by Bank in connection with any letter(s) of
credit or similar arrangement(s), whether heretofore, now or hereafter issued on
behalf of Borrower or any of its Affiliates or Subsidiaries.
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"LETTER OF CREDIT RESERVE" shall have the meaning assigned to
it in Paragraph 2.01(A).
"LOAN" means the Revolving Credit Loan, including principal,
accrued interest, late fees, and reimbursable expenses.
"LOAN DOCUMENTS" means this Agreement, the Revolving Credit
Promissory Note, and any other document evidencing, securing or otherwise
relating to the Obligations, or required to be delivered by Borrower under this
Agreement, as any such documents may be extended, modified, renewed or
substituted.
"LOCK BOX ACCOUNT" shall have the meaning assigned to it in
Paragraph 2.04(A).
"LONG-TERM INDEBTEDNESS" shall mean all outstanding
Indebtedness of Borrower that, by its terms or by the terms of any instrument or
agreement relating thereto, matures more than one year from, or is renewable or
extendible at the option of Borrower to a date more than one year from
(including an option of Borrower under a revolving credit or similar arrangement
obligating the lender to extend credit over a period of one year or more), the
date of creation thereof, and includes current maturities of any such
Indebtedness.
"NET INCOME" shall mean, for any period, the net income (or
loss) of Borrower for such period, determined in accordance with GAAP.
"OBLIGATIONS" means (i) the obligation of Borrower to pay the
principal of and interest on the Loan in accordance with the terms of the
Revolving Credit Promissory Note and this Agreement and to satisfy all of its
other liabilities to Bank under this Agreement, whether now existing or
hereafter incurred, including any extensions, modifications, renewals or
substitutions; (ii) the obligation of Borrower to repay to Bank all amounts
advanced by Bank under this Agreement on behalf of Borrower, including, but
without limitation, advances for principal or interest, payments to prior
secured parties, mortgagees or lienors, or for taxes, levies, insurance, rent,
repairs to or maintenance or storage of any of the Collateral; and (iii) the
obligation of Borrower to reimburse Bank, on demand, for all of Bank's
reasonable expenses and costs, including the reasonable fees and expenses of its
counsel, in connection with the preparation, entering into, administration,
amendment, modification or enforcement of this Agreement and the documents
required under this Agreement, including, without limitation, any proceeding
brought or threatened to enforce payment of any of the obligations referred to
in clauses (i) and (ii) above.
"OTHER OBLIGATIONS" means all obligations, liabilities,
Indebtedness, duties and responsibilities of Borrower to Bank, any affiliate or
subsidiary, bank or no n-bank, direct or indirect, of BB&T Corporation, other
than the Obligations, under any and all agreements, instruments and other
documents, whether now existing or hereafter incurred, including any extensions,
modifications, renewals or substitutions thereof.
"PERMITTED LIENS" means (i) liens for taxes, assessments or
similar charges, incurred in the ordinary course of business that are not yet
due and payable or that are being
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contested in good faith and with due diligence by appropriate proceedings; (ii)
pledges or deposits made in the ordinary course of business to secure payment of
workers' compensation, or to participate in any fund in connection with workers'
compensation, unemployment insurance, old-age pensions or other social security
programs; (iii) liens of mechanics, materialmen, warehousemen, carriers or other
like liens, securing obligations incurred in the ordinary course of business
that are not yet due and payable; (iv) good faith pledges or deposits made in
the ordinary course of business to secure performance of bids, tenders,
contracts (other than for the repayment of borrowed money) or leases, not in
excess of twenty percent (20%) of the aggregate amount due thereunder, or to
secure statutory obligations, or surety, appeal, indemnity, performance or other
similar bonds required in the ordinary course of business; (v) encumbrances
consisting of zoning restrictions, easements or other restrictions on the use of
real property, none of which impairs the use of such property by Borrower in the
operation of its business, and none of which is violated by existing or proposed
restrictions on land use; (vi) liens in favor of Bank and other liens permitted
under Section 6.02 hereof; (vii) other existing liens set forth or described on
EXHIBIT "A", and any renewals and extensions thereof; (viii) purchase money
security interests granted to secure the purchase price of assets which receives
the prior written approval of Bank; and (ix) the following, if the validity or
amount is being contested in good faith by appropriate and lawful proceedings,
so long as levy and execution have been stayed and continue to be stayed and
they do not, in the aggregate, materially detract from the value of the property
of Borrower, or materially impair their use in the operation of its business:
(A) claims or liens for taxes, assessments or charges due and payable and
subject to interest or penalty; (B) claims, liens and encumbrances upon, and
defects of title to, real or personal property, including any attachment of
personal or real property or other legal process prior to adjudication of a
dispute on the merits; (C) claims or liens of mechanics, materialmen,
warehousemen, carriers or other like liens; and (D) adverse judgments on appeal.
"PERSON" means any individual, corporation, partnership,
association, joint-stock company, trust, limited liability company or
partnership, unincorporated organization, joint venture, court or government or
political subdivision or agency.
"PRIME RATE" shall have the meaning assigned to it in
Paragraph 2.05.
"RATE" shall have the meaning assigned to it in Paragraph
2.05.
"RECEIVABLES" means all obligations of every kind at any time
owing to Borrower (whether now existing or hereafter arising, and whether
classified under the Uniform Commercial Code as Accounts, Instruments, Contract
Rights, Chattel Paper, General Intangibles or otherwise), all proceeds thereof,
all security therefor and all of rights of Borrower to goods or other property
sold or leased which may be represented by such property.
"RECORDS" means correspondence, memoranda, tapes, discs,
papers, books and other documents, or transcribed information of any type,
whether expressed in ordinary or machine language.
"REVOLVING CREDIT LOAN" shall have the meaning assigned to it
in Paragraph 2.01.
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"REVOLVING CREDIT PROMISSORY NOTE" shall have the meaning
assigned to it in Paragraph 2.02.
"STOCKHOLDER DEBT" shall mean that certain indebtedness of
Borrower due to MA Xxxxxxx Family Limited Partnership I, Xxxxxxx Family Limited
Partnership I and Xxxxx Xxxxxx, the former principal shareholders of Borrower's
subsidiary, Xxxxxxx Corporation, in the principal amount of $8,000,000.00 and
payable in the year 2030.
"SUBSIDIARY" of a Person means any corporation of which fifty
percent (50%) or more of the outstanding voting securities shall, at the time of
determination, be owned directly or indirectly, through one or more
intermediaries, by such Person.
"TANGIBLE NET WORTH" means, at any date, the shareholders'
equity determined in accordance with GAAP, less (i) all accounts receivable due
from shareholders, directors, officers, Affiliates or Subsidiaries, and (ii) the
value of all intangible assets, plus all Indebtedness which is fully and
expressly subordinated in writing to Bank and Bank's right to receive payment in
full of all the Obligations and Other Obligations, on terms and conditions
acceptable to Bank.
SECTION II. THE LOAN.
2.01 THE REVOLVING CREDIT LOAN.
Subject to the terms of this Agreement, Bank has agreed
to make available to Borrower for Borrower's use from time to time during the
term of this Agreement, upon the written or oral request of Borrower, a line of
credit ("Revolving Credit Loan") at any time equal to the lesser of (a)
$5,000,000.00 ("Commitment") or (b) the Borrowing Base; provided, however, Bank
shall retain as a non-disbursed reserve from the Revolving Credit Loan an amount
equal to the Letter of Credit Obligations (the "Letter of Credit Reserve"). Bank
agrees to make advances under the Revolving Credit Loan automatically, without
any request by Borrower, upon the presentment of items drawn against the
Borrower's checking account, provided that there is sufficient Availability to
cover such advances. Borrower shall submit a completed Collateral Report to Bank
at least once per week so long as any Obligations are outstanding. It is further
provided that Borrower releases the Bank from any liability or obligation for
and agrees to indemnify and hold the Bank harmless from and against any loss,
cost, damage or expense (including the Bank's reasonable attorneys' fees)
incurred or suffered as a result of the payment by the Bank of any item drawn
against the Borrower's checking account that is subsequently determined to have
been improperly paid for any reason, except for the gross negligence, willful
misconduct or bad faith of the Bank. Bank also reserves the right, in its sole
discretion, upon three (3) Business Days prior written notice, to discontinue
automatic payment of items presented to the Bank, and to require written or oral
advance requests to be made by the Borrower.
2.02 THE REVOLVING CREDIT PROMISSORY NOTE. The Loan shall be
evidenced by a promissory note, payable to the order of Bank in the amount of
Bank's Commitment (the "Revolving Credit Promissory Note"), the terms of which
are incorporated by reference.
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2.03 PAYMENT OF PRINCIPAL ON THE REVOLVING CREDIT PROMISSORY
NOTE.
(A) Unless sooner payable by reason of an Event of
Default and acceleration under Paragraphs 7.01 and 7.02, the principal balance
outstanding under the Revolving Credit Promissory Note and the remaining
Obligations shall be payable on the termination of this Agreement as described
in Paragraph 8.01; provided, however, that Borrower may borrow, pay, reborrow
and repay the Loan from time to time; provided, further, however, that the
aggregate outstanding principal amount of the Loan shall at no time exceed the
lesser of the Commitment or the Borrowing Base, less the amount of the Letter of
Credit Reserve. In addition, that portion of the Obligations consisting of the
principal amount of the Loan shall be payable to the extent of any Collections
with respect to the Receivables, which Collections may be applied as described
in Paragraph 2.04 on the date such Collections are received.
(B) In the event that the aggregate principal amount
of the Loan outstanding shall at any time exceed the lesser of the Commitment or
the Borrowing Base, less the amount of the Letter of Credit Reserve, Borrower
shall immediately upon demand repay so much of the Loan as is necessary in order
that the aggregate principal amount of the Loan outstanding shall not exceed the
lesser of the Commitment or the Borrowing Base, less the amount of the Letter of
Credit Reserve.
2.04 PAYMENT AND COLLECTIONS.
(A) Upon execution hereof, Borrower (or any of its
Affiliates, Subsidiaries, agents or those Persons acting for or in concert with
Borrower) shall (i) establish and maintain at Borrower's expense an account (the
"Lock Box Account") with Bank in Borrower's name and to which all monies,
checks, notes, drafts or any other form of payment relating to and/or proceeds
of the Receivables (the "Collections") shall be deposited for application on
account of the Obligations and the Other Obligations as provided in this
Paragraph 2.04; and (ii) direct each of its account debtors in writing to remit
all payments with respect to Receivables for deposit in the Lock Box Account in
such form as Bank may approve; in each case no later than the first Business Day
following receipt of Bank's election under this Paragraph. Neither Borrower nor
any Affiliate or Subsidiary shall be permitted to withdraw any amounts from the
Lock Box Account or change the procedures under Bank's Lock Box Account
agreement. Neither Borrower nor any Affiliate or Subsidiary shall change any
directive to its account debtors as described in clause (ii) above without the
prior written consent of Bank, and in the event any such instructions to account
debtors are changed without Bank's consent, such actions shall constitute an
Event of Default under this Agreement, would cause irreparable damage to Bank
for which there would be no adequate remedy at law, and agrees and consents to
specific performance of the terms and provisions of this Agreement, including
Section 2.04. All Collections to the Lock Box Account shall be swept from the
Lock Box Account with such frequency as Bank may desire, but not less than once
each Business Day of collected funds. Borrower agrees that all Collections shall
be the sole and exclusive property of Bank, to the extent of the outstanding
Obligations and Other Obligations, immediately upon the receipt of such items in
the Lock Box Account by Bank or by Borrower if received by Borrower (in which
event Borrower shall hold all such items in trust for Bank prior to delivery to
Bank) or otherwise; provided, however, that no such item received by Bank shall
constitute payment to Bank unless
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such item is actually collected by Bank. Notwithstanding anything to the
contrary in this Agreement, all Collections shall, solely for purposes of
determining the occurrence of an Event of Default, be deemed received upon
actual receipt by Bank, unless such item is subsequently dishonored for any
reason whatsoever.
(B) Borrower appoints any person that Bank may from
time to time designate as Borrower's attorney-in-fact with full power and
authority, at any time hereafter, to (i) endorse Borrower's name on any checks,
notes, acceptances, money orders, drafts or other forms of payment or security
that may come into Bank's possession; (ii) sign Borrower's name on any invoice
or xxxx of lading relating to any Collateral, on drafts against customers, on
schedules and assignments of Receivables, on notices of assignment, financing
statements and other public records, on verifications of accounts and on notices
to customers; (iii) sign Borrower's name to the proofs of claim against any
account debtor on behalf of Borrower; (iv) notify the post office authorities to
change the address for delivery of Borrower's mail to an address designated by
Bank; (v) receive, open and dispose of all mail addressed to Borrower; (vi) send
requests for verification of Accounts to customers or account debtors and (vii)
do all things necessary to carry out this Agreement. Neither Bank nor the
attorney will be liable for any acts or omissions or for any error of judgment
or mistake of fact or law in connection with the activities described in or
contemplated by the first sentence of this Paragraph 2.04(B), except for such
acts or omissions which constitute gross negligence, willful misconduct or bad
faith. This power, being coupled with an interest, is irrevocable so long as any
Receivables assigned to Bank or in which Bank has a security interest remain
unpaid or until the Obligations and Other Obligations have been fully satisfied.
(C) Borrower irrevocably waives the right to direct
the application of any and all payments at any time or times hereafter which may
be received by Bank from or for the benefit of Borrower, and Borrower hereby
irrevocably agrees that Bank shall have the continuing exclusive right to apply
and reapply any and all such payments received at any time or times hereafter in
such manner as Bank may deem advisable, notwithstanding any entry by Bank upon
any of its books and records.
(D) To the extent that Borrower makes a payment(s) to
Bank or Bank enforces its security interests and liens or exercises its right of
set-off, and such payment(s) or the proceeds of such enforcement or set-off are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable claim, then to the
extent of such recovery, the liability originally intended to be satisfied shall
be revived and continued in full force and effect as if such payment had not
been made or such enforcement or set-off had not occurred and shall be
Obligations secured by the Collateral.
2.05 INTEREST RATE AND FEES.
(A) Interest on the Loan shall be paid as follows:
(1) Interest shall accrue on the principal
balance of the Loan, from time to time outstanding, and will be payable at the
Prime Rate plus one-half percent
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(00.50%) per annum (hereinafter referred to as the "Rate"). Changes in the Prime
Rate shall be effective on the date of such change. "Prime Rate" shall mean that
interest rate per annum so denominated and set by Bank from time to time as an
interest rate basis for borrowings. The Prime Rate is one of several interest
rate bases used by Bank, and Bank lends at rates above and below the Prime Rate.
On the date hereof, the Prime Rate is 8.0% and, therefore, the rate of interest
in effect hereunder with respect to the Revolving Credit Loan on the date
hereof, expressed in simple interest terms, is 8.5%.
(2) Interest shall be calculated on the
basis of a three hundred sixty (360) day year, shall be charged for the actual
number of days the Loan is outstanding, and shall be payable by Borrower on the
first day of each month, commencing the first day of the calendar month
immediately following the date of this Agreement or, if such day is not a
Business Day, on the next succeeding Business Day. Such payments of interest may
be effected by Bank's debits on the dates such interest is due on Borrower's
account with Bank, or, if insufficient funds are in such account, by advances
under the Loan to Borrower on the date such interest is due, subject to the
provisions hereof and so long as there is Availability. Bank is authorized by
Borrower to effect such payment of interest (and any other amounts due under
this Agreement to Bank from Borrower or any Subsidiary or Affiliate) by such
debits or such advances as the case may be. In the event there are insufficient
funds in such account and there is no Availability, Borrower shall be required
to pay such interest to Bank when due.
(3) Upon and after the occurrence of an
Event of Default, and during the continuance of such Event of Default, the
Obligations shall bear interest at the Default Rate.
(B) If, at any time, the Rate shall be deemed by any
competent court of law, governmental agency or tribunal to exceed the maximum
rate of interest permitted by any applicable Laws, then, for such time as the
Rate would be deemed excessive, its application shall be suspended and there
shall be charged instead the maximum rate of interest permissible under such
Laws and any amounts collected in excess of the permissible amount shall be
deemed a prepayment of principal on the Obligations as determined by Bank.
(C) Subject to the provisions of Section 8.02 hereof,
on the execution of this Agreement, Borrower shall pay to Bank a commitment fee
of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) less any deposit paid to Bank upon
execution of the Commitment Letter dated March 1, 2001. Borrower shall pay an
examination fee not to exceed SEVEN HUNDRED FIFTY DOLLARS ($750.00), plus
reasonable travel expenses, to be reimbursed as incurred by Bank for audits of
the books and records of Borrower as authorized under this Agreement, and a
monthly administrative fee in the amount of TWO HUNDRED DOLLARS ($200.00), to be
paid to Bank for the administration of the Loan on the first Business Day of
each month during the term of this Agreement; provided, however, except in the
event of default, Borrower's obligation to reimburse Bank for audits, as herein
provided, shall be no more frequently than quarterly. Bank is authorized by
Borrower to effect any such payments by debiting Borrower's account with Bank on
the date such amounts are due, or otherwise as described in Paragraph
2.05(A)(2).
10
2.06 PAYMENT TO BANK. All sums payable to Bank under this
Agreement shall be paid in United States dollars in immediately available funds
to Bank at its principal office in Atlanta, Georgia. Bank may, at its sole
discretion, effect payment of all such sums by debiting Borrower's account with
Bank or as otherwise described in Paragraph 2.05(A)(2). Bank shall send Borrower
monthly statements of all amounts due under this Agreement, which statements
shall be considered correct and conclusively binding on Borrower absent manifest
error unless Borrower notifies Bank to the contrary within thirty (30) days of
the receipt by Borrower of any statement which it deems to be incorrect.
SECTION III. CONDITIONS PRECEDENT.
The obligation of Bank to make the Loan under this Agreement
is subject to the following conditions precedent:
3.01 DOCUMENTS REQUIRED FOR THE CLOSING. Borrower shall have
delivered to Bank on or prior to the effective date of this Agreement
("Closing"), the Revolving Credit Promissory Note, and shall have delivered to
Bank on or prior to the date of Closing or concurrently with the Closing, the
following:
(A) Duly executed UCC-1 financing statements;
(B) A certified (as of the date of Closing) copy of
resolutions of Borrower's board of directors or other governing body or
authority authorizing the execution, delivery and performance of this Agreement,
the Revolving Credit Promissory Note, and the other Loan Documents;
(C) A certificate (as of the date of Closing) of
Borrower's Secretary or other official having similar responsibilities as to the
incumbency and signatures of the officers of Borrower signing this Agreement,
the Revolving Credit Promissory Note, the Loan Documents and each other document
to be delivered pursuant hereto;
(D) A certificate (as of the date of Closing) signed
by the President, Vice President, Chief Financial Officer or other official
having similar authority of Borrower and to the effect that: (i) the
representations and warranties set forth in Paragraph 5.01 are true as of the
date of the Closing; and (ii) no Event of Default under this Agreement, and no
event which, with the giving of notice or passage of time or both, would become
an Event of Default, has occurred as of such date;
(E) A Collateral Report dated no more than one week
prior to Closing;
(F) An opinion from legal counsel for Borrower as to
the status of Borrower, the enforceability of the Loan Documents, and such other
matters as Bank shall require;
(G) Bank's standard form lock box, cash management or
account sweep agreements, duly executed by Borrower;
11
(H) Such other documents or agreements as Bank or its
counsel may reasonably require to evidence or secure the Loan including, without
limitation, any guaranty agreement, security agreement, deed of trust,
subordination agreement or such other documents required to cross-default and
cross-collateralize the Obligations and the Other Obligations.
3.02 CERTAIN EVENTS. At the time of Closing or any borrowing
hereunder, Borrower shall be deemed to certify to Bank that:
(A) No Event of Default shall have occurred and be
continuing, and no event shall have occurred and be continuing that, with the
giving of notice or passage of time or both, would be an Event of Default;
(B) No material adverse change shall have occurred in
the financial or operating condition or prospects (other than general macro
economic conditions) of Borrower since the date of this Agreement;
(C) All the Loan Documents shall have remained in
full force and effect; and
(D) The representations and warranties contained
herein shall be true and correct in all material respects as of such date.
SECTION IV. COLLATERAL SECURITY.
4.01 COMPOSITION OF THE COLLATERAL. The Collateral shall stand
as one general, continuing collateral security for all Obligations and may be
retained by Bank until all Obligations and Other Obligations have been satisfied
in full.
4.02 RIGHTS IN PROPERTY HELD BY BORROWER. As security for the
prompt satisfaction of all Obligations and Other Obligations, Borrower assigns
to Bank all of its right, title and interest in and to, and grants to Bank a
first lien upon and security interest in, all of the following, wherever
located, whether now owned or hereafter acquired, together with all
replacements, attachments, accessions, alterations, accessories, products and
proceeds (including, without limitation, insurance proceeds) thereof: (i)
Accounts; (ii) Inventory (including goods intended for sale, use or lease by
Borrower or to be furnished by Borrower under contracts of service, all raw
materials, work-in-process, finished goods, Inventory that may be rejected,
returned, reclaimed, repossessed or stopped in transit, and materials and
supplies); (iii) Goods, (iv) Equipment; (v) Chattel Paper; (vi) General
Intangibles (including without limitation tax refund claims, equipment
manufacturer's warranties, and equipment leases); (vii) Instruments; (viii)
Documents; (ix) Contract Rights, (x) rights as seller of Inventory; (xi)
Receivables; (xii) all leasehold improvements and fixtures; (xiii) vehicles;
(xiv) patents, trademarks, service marks and other intangible rights; (xv) all
Records pertaining to any Collateral; and (xvi) Deposit Accounts; (xvii)
Investment Property, and (xviii) to the extent not otherwise specified above,
the assets, properties and rights described on the attached EXHIBIT "B".
12
4.03 PRIORITY OF LIENS. The liens on all Collateral shall be
first and prior liens except for Permitted Liens.
4.04 FINANCING STATEMENTS.
(A) Borrower will: (i) join with Bank in executing
such financing statements (including amendments and continuation statements) in
form satisfactory to Bank; (ii) pay or reimburse Bank for all costs and taxes of
filing or recording in such public offices as Bank may designate; and (iii) take
such other steps as Bank may reasonably direct, including the noting of Bank's
lien on the Collateral and on any certificates of title, all to perfect Bank's
interest in the Collateral.
(B) In addition to the foregoing, and not in
limitation:
(1) A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement and
may be filed in any appropriate office; and
(2) To the extent lawful, Borrower appoints
Bank as its attorney-in-fact (without requiring Bank to act as such) to execute
any financing statement in the name of Borrower, and to perform all other acts
that Bank deems appropriate to perfect and continue its security interest in,
and to protect and preserve, the Collateral, including leasing warehouses to
Bank or its designee, transferring Collateral thereto or to public warehouses,
placing and maintaining signs, appointing custodians and maintaining such
Records with respect to the Collateral as Bank may reasonably request. If any
Collateral is in the possession or control of any other party, Borrower shall
notify all such parties of Bank's security interest therein, and instruct all
such parties to hold all such Collateral for Bank's account and subject to
Bank's instructions.
4.05 CROSS COLLATERALIZATION. The Collateral shall constitute
security for all the Obligations and Other Obligations, without apportionment or
designation as to any particular Obligation or Other Obligation, and all of such
Obligations or Other Obligations, howsoever and whensoever incurred, shall be
secured by all of the Collateral, howsoever and whensoever acquired, and Bank
shall have the right, in its sole discretion, to determine the order in which
Bank's rights in or remedies against the Collateral are to be exercised and
which portions of the Collateral are to be proceeded against and the order of
application of proceeds of the Collateral as against any particular Obligation
or Other Obligation. Bank shall have no obligation to marshal any of the
Collateral or apply the same in any fashion. In addition to the Collateral, all
liens, security interests and collateral with respect to any Other Obligations
shall constitute cross-collateral for all Obligations without apportionment or
designation as to any particular Obligation, and all Obligations, howsoever and
whensoever incurred, shall be secured by all such other collateral, howsoever
and whensoever acquired, and Bank shall have the right, in its sole discretion,
to determine the order in which Bank's rights in or remedies against such other
collateral are to be exercised and which portions of the other collateral are to
be proceeded against and the order of application of proceeds of the other
collateral against particular
13
Obligations. Bank shall have no obligation to marshal any of such other
collateral or apply the same in any fashion.
4.06 LOCATION OF COLLATERAL. The Collateral shall be kept only
at the locations described on EXHIBIT "C" and shall not be removed except for
the sale of Inventory in the regular course of Borrower's business. Borrower
shall provide Bank with written notice ten (10) days prior to any change in the
location of any of the places where any part of the Collateral is kept or the
establishment of any new, or the discontinuance of any existing, places of
business or places where Collateral is kept.
4.07 PROCESSING OF INVENTORY. Upon default, Borrower
authorizes Bank to pay and charge to Borrower any amounts Bank deems necessary
for any processing or finishing of Inventory in order to obtain a release of
such Inventory from any processor, mechanic, artisan or finisher. Upon default,
Borrower agrees to pay Bank all of Bank's expenses of processing, finishing,
selling and storing, handling, licensing, insuring and shipping the Inventory
and any and all of the other costs and expenses which Bank may incur in
protecting or enforcing Bank's security interest in the Inventory or the
proceeds or products thereof. All sums payable by Borrower under this Paragraph
shall be due on demand, deemed a part of the Obligations and secured by the
Collateral, including the Inventory.
4.08 EXCULPATION OF BANK. Bank shall not be liable or
responsible for and Borrower releases Bank from any and all causes of action or
claims which Borrower may now or hereafter have for any loss or damage to
Borrower claimed to be caused by or arising from: (a) the safekeeping of
Collateral; (b) any damage to any Collateral occurring or arising in any manner
or fashion from any cause; (c) any diminution in the value of Collateral; or (d)
any act or default of any carrier, warehouseman, bailee or forwarding agency,
except those claims arising as a result of the gross negligence or willful
misconduct of Bank. All risk of loss, damage or destruction of Collateral shall
be borne by Borrower.
SECTION V. REPRESENTATIONS AND WARRANTIES.
5.01 ORIGINAL. To induce Bank to enter into this Agreement,
Borrower represents and warrants to Bank as follows:
(A) Borrower is a corporation duly organized, validly
existing and in good standing under the Laws of the state of its incorporation
or organization; it has the lawful power to own its properties and to engage in
the business it conducts, and is duly qualified and in good standing as a
foreign corporation in the jurisdictions where the nature of its business or the
location of property owned by it makes such qualification necessary and where
the failure to so qualify would have a material adverse effect (in Bank's
reasonable commercial discretion) upon the Borrower; the states in which
Borrower is qualified to do business are set forth on EXHIBIT "D"; the addresses
of all places of business of Borrower and the addresses at which any of the
Collateral is or shall be located are as set forth in EXHIBIT "C"; and Borrower
maintains its books and records relating to its Accounts, Receivables, Contract
Rights, Instruments, Investment Property, and General Intangibles at its offices
at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx XX, Xxxxxxxxxx, Xxxxxxx 00000.
14
(B) Borrower is not in default with respect to any of
its existing Indebtedness.
(C) The execution of this Agreement, the Revolving
Credit Promissory Note and the other Loan Documents, and the performance of the
transactions contemplated hereunder and thereunder will not (or, with the
passage of time, the giving of notice, or both): (i) violate the charter or
bylaw provisions of Borrower, or, to the best of Borrower's knowledge, violate
any Laws or result in a default under any contract, agreement or instrument to
which Borrower is a party or by which Borrower or its property is bound; or (ii)
result in the creation or imposition of any security interest in, or lien or
encumbrance upon, any of the assets of Borrower, except in favor of Bank, and
except where such violation, conflict, breach, default, termination or lien
would not have a material adverse effect (in Bank's reasonable commercial
discretion) upon the Borrower.
(D) Borrower has the power and authority to enter
into and perform its obligations under this Agreement, the Revolving Credit
Promissory Note and the other Loan Documents, and has taken all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement, the Revolving Credit Promissory Note and the Loan Documents.
(E) This Agreement and the Loan Documents are, and
the Revolving Credit Promissory Note and all other Loan Documents when executed
and delivered will be, valid, binding and enforceable in accordance with their
respective terms subject to enforcement of bankruptcy, insolvency,
reorganization, fraudulent conveyance or other Laws limiting the enforcement of
creditors' rights generally and to moratorium laws from time to time in effect
and to limitations on equitable remedies.
(F) Except as otherwise permitted in this Agreement
(in connection with Permitted Liens or otherwise), Borrower has filed all
federal, state and local tax returns and other tax-related reports, unless
contested in good faith by appropriate proceedings, it is required by Laws to
file prior to the date of this Agreement and which are material to the conduct
of its business; has paid or caused to be paid all taxes, assessments and other
governmental charges that are due and payable prior to the date of this
Agreement, and has made adequate provision for the payment of such taxes,
assessments or other charges accruing but not yet payable; Borrower has no
knowledge of any deficiency or additional assessment in connection with any
taxes, assessments or charges not provided for on its books.
(G) All financial statements delivered to Bank have
been prepared in accordance with GAAP. Such financial statements contain no
material misstatement or omission and fairly present the financial condition,
assets and liabilities of Borrower and its Subsidiaries on a consolidated basis
as of the respective dates thereof and the results of operations of Borrower and
its Subsidiaries on a consolidated basis as of the respective dates thereof and
for the respective periods then ended. Since the date of the most recent
financial statement for Borrower provided to Bank, there has been no material
adverse change in assets, liabilities, financial condition or prospects of
Borrower or any Subsidiary or in the results of operations of Borrower or any
Subsidiary, and neither Borrower nor any of its Subsidiaries has incurred any
15
obligation or liability that materially and adversely affect its financial
condition, business operations or properties, or has entered into any material
contract not contemplated by this Agreement and not in the ordinary course of
business consistent with past practice.
(H) Each consent, approval or authorization of, or
filing, registration or qualification with, any Person required to be obtained
or effected by Borrower in connection with the execution and delivery of this
Agreement, the Revolving Credit Promissory Note and the other Loan Documents or
the undertaking or performance of any Obligation has been duly obtained or
effected.
(I) All Defined Benefit Pension Plans, if any, as
defined in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), of Borrower meet, as of the date of this Agreement, the minimum
funding standards of Section 302 of ERISA, and with respect to all Employee
Benefit Plans, as defined in ERISA, of Borrower, no Reportable Event or
Prohibited Transaction, as defined in ERISA, has occurred.
(J) Borrower has no Subsidiaries except as shown on
attached EXHIBIT "E".
(K) All Inventory (i) is and shall be of good and
merchantable quality, free from any and all defects and not obsolete except as
noted in Borrower's periodic Inventory reports provided to Bank; (ii) is and
shall be subject to internal controls and management procedures (including, but
not limited to, a physical inventory) conducted by Borrower and satisfactory to
Bank; and (iii) meets and shall meet all standards imposed by any governmental
authority having jurisdiction over such Inventory, its use and/or sale. No
Inventory (a) has been or shall be consigned without Bank's prior written
consent; and (b) is or shall ever be stored with a bailee, warehouseman or
similar party without Bank's prior written consent and in such event Borrower
will, concurrently with delivery to such party, cause any such party to issue
and deliver to Bank, in form acceptable to Bank, warehouse receipts in Bank's
name evidencing the storage of such Inventory.
(L) There are no material actions, suits,
investigations or proceedings pending or, to the knowledge of Borrower,
threatened against or affecting Borrower before any court or administrative
officer or agency. Borrower is not in violation of or in default under any
applicable Law, order, decree, writ or injunction, to which a default or failure
to comply could have a material adverse effect (in Bank's reasonable commercial
discretion), upon the Borrower.
(M) Borrower has good, indefeasible and merchantable
title in fee simple (or its equivalent under applicable law) to, and ownership
of, the assets reflected in its most recent financial statement delivered to
Bank, and all of its other assets, free and clear of all liens, claims, security
interests and encumbrances, except for the Permitted Liens and as shown on
EXHIBIT "A".
(N) No dangerous, hazardous or toxic substances,
pollutants, contaminants, chemicals, wastes or materials, within the meaning of
any applicable Laws (collectively "Hazardous Substances") are unlawfully stored
or located upon any premises
16
owned, leased, controlled or used by Borrower or any of its Subsidiaries, and no
part of any such premises, including the groundwater located thereon and
thereunder, is presently contaminated by any such Hazardous Substance. All
activities and operations of Borrower and its Subsidiaries meet in all material
respects the requirements of all applicable environmental Laws. Borrower has
never sent a Hazardous Substance to a site which, pursuant to any Law, (i) has
been placed on the "National Priorities List" or "CERCLIS List" of hazardous
wastes (or any similar state list) or (ii) is subject to a claim, an
administrative order or other request to take removal or remedial action or to
pay for the cost of cleaning up such a site. Borrower has timely filed all
reports required to be filed, has acquired all necessary certificates, approvals
and permits and has generated and maintained all required data, documentation
and records under applicable environmental Laws.
(O) No representation or warranty by Borrower
contained in this Agreement, the Loan Documents or in any other certificate or
document furnished by Borrower pursuant to this Agreement contains any untrue
statement of a material fact or omits to state a material fact necessary to make
such representation or warranty not misleading in light of the circumstances
under which it was made.
(P) Borrower and each of its subsidiaries have duly
complied in all material respects with, and the Collateral and their business
operations and leaseholds are in compliance in all material respects with, the
Laws, and there have been no material citations, notices or orders of
noncompliance issued to Borrower or any of its subsidiaries under any of such
Laws.
5.02 SURVIVAL. All the representations and warranties set
forth in Paragraph 5.01 shall survive until all Obligations are satisfied in
full.
SECTION VI. BORROWER'S COVENANTS.
Borrower covenants and agrees with Bank that, so long as
Borrower may borrow under the Commitment and so long as any of the Obligations
remain unsatisfied, it will comply with the following covenants:
6.01 AFFIRMATIVE COVENANTS.
(A) Borrower will use the proceeds of the Loan only
for the following purposes: to refinance existing indebtedness with First Union
National Bank, to fund capital expenditures and other general expenditures, to
provide for working capital, and no other purpose. Borrower will furnish Bank
such evidence as it may reasonably require with respect to such uses.
(B) Borrower will furnish Bank:
(1) Within twenty (20) days after the close
of each monthly accounting period in each fiscal year: (a) income statements of
Borrower for such monthly period and (b) balance sheets of Borrower as of the
end of such monthly period, all in reasonable
17
detail, subject to year-end audit adjustments and certified by Borrower's
President or Chief Financial Officer to have been prepared in accordance with
GAAP except for any inconsistencies explained in such certificate.
(2) Within ninety (90) days after the close
of each fiscal year financial statements (income statement, balance sheet and
statement of cash flows at a minimum) of Borrower, as of the end of such year,
in reasonable detail, including all supporting schedules and comments; such
statements to be audited by independent certified public accountants acceptable
to Bank, and certified by such accountants to have been prepared in accordance
with GAAP, except for any inconsistencies explained in such statement. Borrower
will obtain from such independent certified public accountants and deliver to
Bank, within ninety (90) days after the close of each fiscal year, their written
statement that in making the examination necessary to their certification they
have obtained no knowledge of any Event of Default by Borrower, or disclosing
all Events of Default of which they have obtained knowledge; provided, however,
that in making their examination such accountants shall not be required to go
beyond the bounds of generally accepted auditing standards for the purpose of
certifying financial statements. Bank shall have the right, from time to time,
to discuss Borrower's affairs directly with Borrower's independent certified
public accountants after notice to Borrower and opportunity of Borrower to be
present at any such discussions.
(3) Contemporaneously with each monthly and
year-end financial report required by the foregoing paragraphs (1) and (2), a
certificate of the President or Chief Financial Officer of Borrower stating that
he has individually reviewed the provisions of this Agreement and that a review
of the activities of Borrower during such yearly or monthly period, as the case
may be, has been made by him or under his supervision, with a view to
determining whether Borrower has fulfilled all its obligations under this
Agreement, and that, to the best of his knowledge, Borrower has observed and
performed each undertaking contained in this Agreement and is not in default in
the observance or performance of any of the provisions of this Agreement or, if
Borrower shall be in default, specifying all such defaults and events of which
it may have knowledge.
(4) By the fifteenth (15th) day of each
month, an aging of Receivables and payables in such form and content as Bank may
reasonably require, all dated as of the last day of the immediately preceding
monthly accounting period, together with a Collateral Report dated as of the
date an aging of Receivables report.
(5) At least weekly during the term of this
Agreement, a Collateral Report dated no more than three business days prior to
its submission to Bank.
(C) Borrower will maintain, or cause to be maintained,
public liability insurance and fire and extended coverage insurance on all
assets owned by it, all in such form and amounts as are consistent with industry
practices and with such insurers as may be satisfactory to Bank in its
commercial reasonable judgment. Such policies shall contain a provision whereby
they cannot be canceled except after at least thirty (30) days' written notice
to Bank. Such policies to the extent they insure any of the Collateral shall
name the Bank as additional insured and be payable to Bank as its interest may
appear. Borrower will furnish to
18
Bank such evidence of insurance as Bank may require. Borrower agrees that, in
the event it fails to pay or cause to be paid the premium on any such insurance,
Bank may do so and be reimbursed by Borrower therefor on demand with interest
thereon at Bank's Rate. Borrower assigns to Bank any returned or unearned
premiums that may be due Borrower upon cancellation of any such policies for any
reason whatsoever and directs the insurers to pay Bank any amounts so due. Bank
is appointed Borrower's attorney-in-fact (without requiring Bank to act as such)
to endorse any check which may be payable to Borrower and to collect such
returned or unearned premiums or the proceeds of such insurance, and any amount
so collected may be applied by Bank toward satisfaction of any of the
Obligations or Other Obligations.
(D) Borrower will pay or cause to be paid when due,
all taxes, assessments and charges or levies imposed upon it or its property or
which it is required to withhold and pay over, except where contested in good
faith by appropriate proceedings with adequate reserves therefor having been set
aside on its books. Borrower shall pay or cause to be paid all such taxes,
assessments, charges or levies forthwith whenever foreclosure on any lien that
attaches appears imminent.
(E) Borrower will, when requested so to do, make
available for inspection during normal business hours by duly authorized
representatives of Bank any of its books and Records, and will furnish Bank any
information regarding its business affairs and financial condition within a
reasonable time after request by Bank. Borrower agrees that Bank shall have the
right to conduct all such examinations, inspections and audits of Borrower's
books and Records, business affairs and financial condition as Bank deems
necessary in its commercially reasonable judgment. Such examinations,
inspections and audits may include the verification of Accounts to customers or
account debtors of Borrower or other similar or different requirements deemed
necessary by Bank.
(F) Borrower will take all necessary steps to
preserve its existence and franchises and comply in all material respects with
all present and future Laws applicable to it in the operation of its business,
including the Securities and Exchange Commission, the ownership and operation of
the Collateral owned by it, and all material agreements to which it is subject.
(G) Borrower will collect its Accounts and Receivables
only in the ordinary course of business.
(H) Borrower will keep accurate and complete Records
of its Accounts, Inventory and Receivables consistent with sound business
practices.
(I) Borrower will pay when due (or within applicable
grace periods) all Indebtedness due third Persons, except when the amount is
being contested in good faith by appropriate proceedings and with adequate
reserves having been set aside on the books of Borrower in accordance with GAAP.
(J) Borrower will notify Bank promptly if it becomes
aware of the occurrence of any Event of Default or of any fact, condition or
event that with the giving of
19
notice or passage of time or both, could become an Event of Default, or of the
failure of Borrower to observe any of its undertakings under this Agreement.
(K) Borrower will notify Bank ten (10) days in advance
of any change in the location of any of its places of business or of the
establishment of any new, or the discontinuance of any existing, place of
business or of the locations at which any of the Collateral is kept.
(L) Borrower will: (1) fund all its Defined Benefit
Pension Plans, if any, in accordance with no less than the minimum funding
standards required under ERISA; (2) furnish Bank, promptly after the filing of
the same, with copies of all reports or other statements filed with the United
States Department of Labor or the Internal Revenue Service with respect to all
Employee Benefit Plans; and (3) promptly advise Bank of the occurrence of any
Reportable Event or Prohibited Transaction (as defined in ERISA) with respect to
any Employee Benefit Plan.
(M) If requested by Bank, Borrower will furnish to
Bank written reports, in addition to the other reports and certificates required
of Borrower under this Agreement, detailing the aging and collection of
Receivables, and containing such information as Bank may specify. Such reports
shall be furnished by Borrower to Bank weekly, if required by Bank.
(N) Borrower will maintain a Tangible Net Worth of not
less than $3,000,000.00 as of January 31, 2002.
(O) Borrower will maintain a ratio of total
Indebtedness to Tangible Net Worth not to exceed 9.5 to 1 as of April 30, 2001,
35.5 to 1 as of October 31, 2001, and 12.25 to 1 as of January 31, 2002. For
purposes of this Subparagraph (O), all Indebtedness which is fully and expressly
subordinated in writing to Bank and Bank's right to payment in full of all of
the Obligations and Other Obligations, on terms and conditions acceptable to
Bank, shall be deemed excluded from the term "Indebtedness."
(P) Borrower shall allow Bank and its agents and
representatives at all times to have access to Borrower's premises upon
reasonable notice and during normal business hours for purposes of examining and
inspecting the Collateral and all Records pertaining thereto, and otherwise to
monitor compliance with the terms of this Agreement.
(Q) Borrower shall maintain all of its Equipment and
facilities in good working order and condition (ordinary wear and tear
excepted), and shall not permit any Equipment to become a fixture to real estate
or an accession to any other property. Borrower shall, immediately upon Bank's
demand, deliver to Bank any and all evidences of ownership of, certificates of
title to and applications for title to any of the Equipment.
(R) Borrower shall maintain its primary depository
relationship with Bank.
20
6.02 NEGATIVE COVENANTS.
(A) Without the Bank's prior written consent
(exercisable in its reasonable commercial discretion), Borrower will not change
its name, enter into any merger, consolidation, reorganization or
recapitalization, or reclassify its capital stock or other equity interests,
except for a merger between Borrower and a domestic Subsidiary or between
domestic Subsidiaries of Borrower, so long as Borrower is the surviving or
continuing corporation in any such merger.
(B) Without the Bank's prior written consent
(exercisable in its reasonable commercial discretion), Borrower will not sell,
transfer, lease or otherwise dispose of all or (except in the ordinary course of
business) any part of its assets except (1) a transfer of any property to a
Subsidiary of Borrower and (2) dispositions expressly permitted by this
Agreement.
(C) Borrower will not mortgage, pledge, grant or
permit to exist a security interest in, lien or encumbrance of any kind upon any
of its real or personal asset, now owned or hereafter acquired, except for
Permitted Liens.
(D) Borrower will not, without Bank's prior written
consent, become liable, directly or indirectly, as guarantor or otherwise, for
any obligation of any other Person, except for the endorsement of commercial
paper for deposit or collection in the ordinary course of business or the giving
of indemnities in connection with the sale of Inventory or other asset
dispositions permitted hereunder.
(E) Borrower will not incur, create, assume or permit
to exist any Indebtedness except: (1) the Loan; (2) Indebtedness existing as of
this date, a schedule of which is attached as EXHIBIT "F"; (3) business expenses
and trade indebtedness incurred in the ordinary course of business; (4)
contingent Indebtedness permitted by Paragraph 6.02(D); (5) Indebtedness secured
by Permitted Liens; and (6) Indebtedness expressly permitted by this Agreement.
(F) Borrower will not declare or pay any dividends,
or make any other payment or distribution on account of its capital stock,
except in accordance with the applicable Laws, provided that Borrower shall not
be in default of this Agreement or if made, would not result in an event of
default hereunder; and, further, with the Bank's prior written consent
(exercisable in its reasonable commercial discretion), Borrower may declare and
pay stock dividends. A Subsidiary of Borrower shall be expressly authorized to
pay dividends to Borrower.
(G) Borrower will not redeem, purchase or retire any
of its capital stock or other equity interests except pursuant to any existing
agreement shown on the attached EXHIBIT "G," and then only with the prior
written consent of Bank exercisable in its sole and absolute discretion.
(H) Borrower will not acquire any stock in, or all or
substantially all of the assets of, any Person other than its Subsidiaries.
21
(I) Borrower will not furnish Bank any certificate or
other document that contains any untrue statement of a material fact or that
omits to state a material fact necessary to make it not misleading in light of
the circumstances under which it was furnished.
(J) Borrower will not directly, or indirectly, apply
any part of the proceeds of the Loan to the purchasing or carrying of any
"margin stock" within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System, or any regulations, interpretations or rulings
issued thereunder.
(K) Without Bank's prior written consent, which may
be withheld in its absolute discretion, Borrower shall not prepay the
Stockholder Debt.
(L) Without the Bank's prior written consent,
Borrower shall expend for Fixed Assets no more than ONE MILLION DOLLARS
($1,000,000.00) during the term of this Agreement.
(M) Without the Bank's prior written consent,
Borrower shall incur funded debt and Capital Lease Obligations of no more than
TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) in the aggregate during the
term of this Agreement.
(N) Borrower will not permit EBITDA for any
hereinafter referenced period ending on the referenced computation date to be
less than the dollar amount set forth below opposite such date:
COMPUTATION DATE EBITDA
---------------- ------
April 30, 2001 ($4,500,000.00)
July 31, 2001 ($2,000,000.00)
October 31, 2001 $ 500,000.00
January 31, 2002 $1,500,000.00
SECTION VII. DEFAULT
7.01 EVENTS OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an Event of Default under this Agreement:
(A) Borrower shall fail to make payment of any of the
Obligations when due or declared due.
(B) Borrower shall fail to observe or perform any
non-monetary obligation to be observed or performed by it under this Agreement
or under any of the Loan Documents or any other documents to which it is a party
relating to the Loan and such failure continues unremedied for a period of
fifteen (15) Business Days after the earlier to occur of (i) the date on which
such breach is known or reasonably should have become known to any officer of
the Borrower, or (ii) the date on which lender shall have notified the Borrower
of such failure.
22
(C) Borrower shall fail to make payment of any Other
Obligation when due or declared due, and such failure shall continue beyond any
applicable grace period therefor.
(D) Borrower shall fail to observe or perform any
non-monetary obligation to be observed or performed by it in connection with any
Other Obligation, and such failure shall continue beyond any applicable grace
period therefor and, after the expiration of any applicable grace period, such
failure continues unremedied for a period of fifteen (15) Business Days after
the earlier to occur of (i) the date on which such breach is known or reasonably
should have become known to any officer of the Borrower, or (ii) the date on
which lender shall have notified the Borrower of such failure.
(E) Borrower shall fail to pay any Indebtedness and
such failure shall continue beyond the later of (i) any applicable grace period
therefor or (ii) five days after written notice from Bank to Borrower, or
Borrower shall suffer to exist any other event of default under any agreement
relating to such Indebtedness.
(F) Any financial statement, representation, warranty
or certificate made or furnished by Borrower to Bank in connection with this
Agreement or as an inducement to Bank to enter into this Agreement, or in any
separate statement or document to be delivered under this Agreement to Bank, or
otherwise, shall be materially false, incorrect or incomplete when made, and
such failure shall continue unremedied for a period of fifteen (15) Business
Days after the earlier to occur of (i) the date on which such breach is known or
reasonably should have become known to any officer of the Borrower, or (ii) the
date on which lender shall have notified the Borrower of such failure.
(G) Borrower shall admit in writing its inability to
pay its debts as they mature, or shall make an assignment for the benefit of or
any of its creditors.
(H) Proceedings in bankruptcy or for reorganization
of Borrower, or for the readjustment of any of its debts, under the Bankruptcy
Code, as amended, or under any other Laws, whether state or federal, for the
relief of insolvent debtors, now or hereafter existing, shall be commenced by
Borrower, or shall be commenced against Borrower and shall not be discharged
within sixty (60) days of their commencement.
(I) A receiver, custodian or trustee shall be
appointed for Borrower or for any substantial part of its assets, or any
proceedings shall be instituted for the dissolution or the full or partial
liquidation of Borrower, and such receiver, custodian or trustee shall not be
discharged within sixty (60) days of his appointment, or such proceedings shall
not be discharged within sixty (60) days of their commencement, or Borrower
shall discontinue business or materially change the nature of its business.
(J) Borrower shall suffer final judgment(s) for
payment of money aggregating in excess of TWENTY-FIVE THOUSAND DOLLARS
($25,000.00) and shall not discharge all such judgment(s) within a period of
sixty (60) days unless, pending further proceedings, execution has not been
commenced or if commenced has been effectively stayed.
23
(K) A judgment creditor of Borrower shall lawfully
obtain and retain for at least five (5) days possession of any portion of the
Collateral by any lawful means, including, but without limitation, levy,
distraint, replevin, claim and delivery, or self-help.
(L) The cancellation, termination, expiration,
qualification or any other change in any agreement guaranteeing the obligations
of Borrower under the Revolving Credit Promissory Note or this Agreement.
(M) Should the Borrower assert for any reason that
this Agreement (or any provision hereof), the Revolving Credit Promissory Note
or any other Loan Document is invalid or unenforceable.
7.02 ACCELERATION. Bank may, immediately and without notice
upon the occurrence of an Event of Default, declare all Obligations and Other
Obligations to be, and the Obligations and Other Obligations shall become, due
and payable without further action of any kind.
7.03 REMEDIES. After any acceleration, as provided for in
Paragraph 7.02, all commitments and obligations of Bank shall terminate and Bank
shall have, in addition to the rights and remedies given it by this Agreement,
the Revolving Credit Promissory Note and the Loan Documents, all rights and
remedies allowed by all applicable Laws, including, but without limitation, the
Uniform Commercial Code as enacted in any jurisdiction in which any Collateral
may be located and the right to take legal action against Borrower or institute
proceedings for the collection of the Loan. Without limiting the generality of
the foregoing, Bank may immediately, without demand of performance and without
other notice (except as specifically required by this Agreement, the Loan
Documents or applicable Laws) or demand whatsoever to Borrower, all of which are
expressly waived, and without advertisement, sell at public or private sale or
otherwise realize upon, at such place as Bank may determine, or elsewhere, the
whole or, from time to time, any part of the Collateral, or any interest which
Borrower may have in the Collateral. After deducting from the proceeds of sale
or other disposition of the Collateral all expenses (including all reasonable
expenses for legal services), Bank shall apply such proceeds toward the payment
of the Obligations or Other Obligations. Any remainder of the proceeds after
satisfaction in full of the Obligations or Other Obligations shall be
distributed as required by applicable Laws. Notice of any sale or other
disposition shall be given to Borrower at least fifteen (15) days before the
time of any intended public sale or of the time after which any intended private
sale or other disposition of the Collateral is to be made, which Borrower agrees
shall be reasonable notice of such sale or other disposition. Borrower agrees to
assemble, or to cause to be assembled, at its own expense, the Collateral at
such place or places as Bank shall reasonably designate. At any such sale or
other disposition, Bank may, to the extent permissible under applicable Laws,
purchase the whole or any part of the Collateral, free from any right of
redemption on the part of Borrower which right is waived and released. Without
limiting the generality of any of the rights and remedies conferred upon Bank
under this Paragraph, Bank may, to the full extent permitted by applicable Laws:
24
(A) Enter upon the premises of Borrower, and take
immediate possession of the Collateral, either personally or by means of a
receiver appointed by a court of competent jurisdiction;
(B) At Bank's option, use, operate, manage and
control the Collateral in any lawful manner;
(C) Collect and receive all rents, income, revenue,
earnings, issues and profits;
(D) Maintain, repair, renovate, alter or remove the
Collateral as Bank may determine in its reasonable discretion, and discharge any
liens, security interests or other encumbrances and any taxes at any time levied
or placed on any of the Collateral;
(E) Notify account debtors that Receivables have been
assigned to Bank and collect them directly in Bank's name;
(F) Endorse Borrower's name on any check, note,
acceptance, draft or other form of payment or security payable to Borrower that
may come into the possession of Bank; sign Borrower's name on any invoice or
xxxx of lading relating to any Receivable and on drafts against account debtors
and on drafts against letters of credit issued for the benefit of account
debtors;
(G) Notify the post office authorities to change the
address for delivery of Borrower's mail to an address designated by Bank and
receive, open and dispose of all mail addressed to Borrower;
(H) Require that all full or partial payments of
Receivables which are made directly to Borrower or which otherwise come into
Borrower's possession be received by Borrower in trust for Bank and immediately
delivered by Borrower to Bank in the form received; and
(I) Make such payments and incur such costs as Bank
deems necessary to enforce the payment or performance of the Obligations, all
such costs being due on demand, deemed a part of the Obligations and secured by
the Collateral.
SECTION VIII. TERMINATION.
8.01 TERM. This Agreement shall have a term of one (1) year
from the date hereof to March 29, 2002 ("Term"). The Bank may terminate this
Agreement at any time without further notice following the occurrence of an
Event of Default under Paragraph 7.01.
8.02. OPTION TO TERMINATE. At any time after ninety (90) days
from the Closing, and notwithstanding the provisions of Paragraph 8.01, the Bank
may, at any time, upon ninety (90) days' written notice to the other terminate
this Agreement. In the event Bank shall exercise the notice to terminate after
expiration of ninety (90) days from Closing and prior to one
25
hundred eighty (180) days from Closing, it shall rebate to Borrower one-half of
the Commitment Fee provided for hereinabove. In the event Bank shall exercise
the option to terminate at any time after one hundred eighty (180) days from
Closing, Bank shall retain the full Commitment Fee. Notwithstanding the
provisions of paragraph 8.01, Borrower shall have the right at any time, upon at
least ninety (90) days prior written notice to the Bank, without premium or
penalty, to terminate this Agreement.
8.03 EFFECT OF TERMINATION. No termination of this Agreement
shall in any way (i) affect or impair Bank's security interest in and lien on
the Collateral (or any other collateral or security) or any real estate or any
other right or privilege under this Agreement or under the Revolving Credit
Promissory Note or any other agreement related to this Agreement, (ii) relieve
Borrower from any of its duties and obligations under this Agreement or under
the Revolving Credit Promissory Note or such other agreements including, without
limitation, the Obligations or (iii) relieve any other Person primarily or
secondarily liable for the Obligations from its obligations and duties to Bank.
SECTION IX. MISCELLANEOUS.
9.01 APPOINTMENT OF BANK AS ATTORNEY IN FACT. Borrower
appoints Bank its attorney-in-fact (without requiring Bank to act as such) with
power and for the purposes of taking such action as, and at the times permitted
by Paragraph 7.03 (A) through (I). This power, being coupled with an interest,
shall be irrevocable so long as any part of the Obligations is outstanding.
9.02 FURTHER ASSURANCE. From time to time, Borrower will
execute and deliver to Bank such additional documents and will provide such
additional information as Bank may reasonably require to carry out the terms of
this Agreement and be informed of Borrower's status and affairs.
9.03 NOTICES. Any notices or consents required or permitted by
this Agreement shall be in writing and shall be deemed delivered if delivered in
person or if sent by certified mail, postage prepaid, return receipt requested,
or overnight courier, as follows, unless such address is changed by written
notice given in accordance with the terms of this Agreement:
(A) If to Borrower:
Optio Software, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxxxxx XX
Xxxxxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxxxx, Chief Financial Officer
With copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
00
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxx, Esq.
(B) If to Bank:
Branch Banking and Trust Company
Xxxx Xxxxxx Xxx 0000
Xxxxxxx-Xxxxx, XX 00000
Attn: Xx. Xxxxx X. Xxxxxxx, XX Vice President
9.04 WAIVER AND RELEASE BY BORROWER. To the maximum extent
permitted by applicable Laws, Borrower:
(A) Waives (except as may otherwise be provided in
this Agreement): (1) presentment for payment, demand, protest, notice or
non-payment or dishonor and of protest with respect to the Revolving Credit
Promissory Note; and (2) notice and opportunity to be heard, after acceleration
in the manner provided in Paragraph 7.02, before exercise by Bank of the
remedies of self-help, set-off or of other summary procedures permitted by any
applicable Laws or by any agreement with Borrower and, except where required by
this Agreement or by any applicable Laws, notice of any other action taken by
Bank; and
(B) Releases Bank and its directors, officers,
attorneys, agents and employees from all claims for loss or damage caused by any
act or omission on the part of any of them except for gross negligence or
willful misconduct.
9.05 APPLICABLE LAW. The substantive laws of Georgia shall
govern the construction of this Agreement and the rights and remedies of the
parties.
9.06 BINDING EFFECT, ASSIGNMENT AND ENTIRE AGREEMENT. This
Agreement shall inure to the benefit of, and shall be binding upon, the
respective successors and permitted assigns of the parties. Borrower has no
right to assign any of its rights or obligations under this Agreement without
the prior written consent of Bank. This Agreement, and the documents executed
and delivered pursuant to this Agreement, constitute the entire agreement
between the parties, and may be amended only by a writing signed by each party.
9.07 SEVERABILITY. If any provision of this Agreement shall be
held invalid under any applicable Laws, such invalidity shall not affect any
other provision of this Agreement that can be given effect without the invalid
provision, and, to this end, the provisions are severable.
9.08 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original but all
of which together shall constitute but one and the same instrument.
27
9.09 EXPENSES. Borrower shall pay (i) all out-of-pocket
expenses of Bank, including fees and disbursements of counsel for Bank, in
connection with the negotiation, preparation, execution and delivery of this
Agreement and the other Loan Documents, (ii) all out-of-pocket expenses of Bank,
including fees , provided, that the expenses, fees and other disbursements
pursuant to sections 9.09(i) and (ii) shall not exceed $4,000.00, and
disbursements of counsel for Bank, in connection with any waiver or consent
hereunder or any amendment hereof or any actual or alleged default hereunder,
and (iii) shall indemnify and hold Bank harmless from any loss, liability or
expense incurred by Bank upon, or attributable to, the occurrence of an Event of
Default, including fees and disbursements of counsel in connection with such
Event of Default and collection and other enforcement proceedings resulting
therefrom, including out-of-pocket expenses incurred in enforcing this Agreement
and the other Loan Documents. Borrower shall pay all transfer taxes, documentary
taxes, assessments, filing fees or other charges made by any applicable
governmental authority by reason of the execution and delivery of this Agreement
or any of the other Loan Documents. Borrower shall also pay Bank its
then-current fees and charges for any and all operational services provided to
Borrower, none of which are included within the interest charges under the Loans
or any other charges or fees specifically described in this Agreement.
9.10 SEAL. This Agreement is intended to take effect as an
instrument under seal.
9.11 INTERPRETATION. Whenever used in this Agreement, the
singular number shall include the plural, the plural the singular, and the use
of the masculine, feminine or neuter gender shall include all genders.
9.12 WAIVER. No waiver of any Event of Default or breach by
Borrower hereunder shall be implied from any delay or omission by Bank to take
action on account of such default, and no express waiver shall affect any Event
of Default other than specified in the waiver, and it shall be operative only
for the time and to the extent therein stated. Waivers of any covenant, term or
condition herein must be in writing and shall not be construed as a waiver of
any subsequent breach of the same covenant, term or condition or breach of any
other covenant, term or condition.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement under seal as of the date first above written.
BANK:
BRANCH BANKING AND TRUST COMPANY
By: /s/ Xxxx X. XxXxxxxxxx
------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Senior V.P.
28
BORROWER:
OPTIO SOFTWARE, INC.
a Georgia corporation
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: CFO
ATTEST:
/s/ Xxxxxx Xxxxxx
Secretary
[AFFIX CORPORATE SEAL]
29
INDEX OF EXHIBITS
Exhibit A Permitted Liens
Exhibit B Collateral Description
Exhibit C Location of Collateral List of Places of Business of Borrower
Exhibit D List of States Where Borrower is Qualified to Transact Business
Exhibit E List of Subsidiaries of Borrower
Exhibit F Existing Indebtedness
Exhibit G Agreements
30
EXHIBIT A
PERMITTED LIENS
GEORGIA SUPERIOR COURT CLERKS' COOPERATIVE AUTHORITY
1. UCC-1 No. 000-0000-000000 in favor of IBM Credit Corporation, as
Secured Party, covering leased computer equipment.
2. UCC-1 No. 000-0000-000000 in favor of Fidelity Leasing, Inc., as
Secured Party, covering four (4) Xxxxxx copiers.
3. UCC-1 No. 000-0000-000000 in favor of Bankers/Softech/Mid-States, a
division of EAB Leasing Corporation, as Secured Party, covering goods,
chattel paper, fixtures, furnishings, equipment, accounts, accounts
receivables and general intangibles.
4. UCC-1 No. 000-0000-000000 in favor of Bankers/Softech/Mid-States, as
Secured Party, covering certain leased personal property.
5. UCC-1 No. 000-0000-000000 in favor of Bankers/Softech, as Secured
Party, covering goods, chattel paper, fixtures, furnishings, equipment,
accounts, accounts receivables and general intangibles.
6. UCC-1 No. 000-0000-000000 in favor of Steelcase Financial Services,
Inc., as Secured Party, covering leased furniture and/or equipment.
7. UCC-1 No. 000-0000-000000 in favor of Siemens Credit Corporation, as
Secured Party, covering leased phone system.
FLORIDA SECRETARY OF STATE
8. UCC-1 No. 200000277714 in favor of IBM Credit Corporation, as Secured
Party, covering leased computer equipment.
EXHIBIT B
COLLATERAL DESCRIPTION
None
32
EXHIBIT C
LOCATION OF COLLATERAL--LIST OF PLACES OF BUSINESS OF BORROWER
1. 0000 Xxxxxxxx Xxxxx
Xxxxxxxx XX
Xxxxxxxxxx, Xxxxxxx 00000
2. 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxxxx 00000
3. 000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
00
XXXXXXX X
XXXX XX XXXXXX WHERE BORROWER IS QUALIFIED TO TRANSACT BUSINESS
Georgia (state of incorporation)
California
Florida (filed 3/28/01)
34
EXHIBIT E
LIST OF SUBSIDIARIES OF BORROWER
Xxxxxxx Corporation, a Florida corporation
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
Optio Software, Europe, S.A.
Optio Software, UK, Pvt. Limited
Optio Software, Asia Pacific
35
EXHIBIT F
EXISTING INDEBTEDNESS
1. Promissory Note dated 3/27/00 in favor of Xxxxxxx X. Xxxxxxx in the principal
amount of $4,000,000, due 3/28/30 and bearing interest at 6.75% per year.
2. Promissory Note dated 3/27/00 in favor of Xxxxxxxx Xxxxxxx in the principal
amount of $2,000,000, due 3/28/30 and bearing interest at 6.75% per year.
3. Promissory Note dated 3/27/00 in favor of Xxxxx Xxxxxx in the principal
amount of $2,000,000, due 3/28/30 and bearing interest at 6.75% per year.
4. Lease with IBM Credit Corporation as Lessor - $167,460 balance due as of
1/31/01 - 36 month lease ending on 11/30/03 - monthly payments are $5,081.
5. Lease with IBM Credit Corporation as Lessor - $185,227 balance due as of
1/31/01 - 60 month lease ending on 4/30/05 - monthly payments are $4,561.
6. Lease with Siemens as Lessor - $27,964 balance due as of 1/31/01 - 60 month
lease ending on 1/1/02 - monthly payments are $3,783.51.***
7. Note in favor of Xxxxxx XxXxxx and Xxxxx Xxxxxxxxxx in the principal amount
of $52,800, due upon demand and bearing interest at 12% per year.
8. Note in favor of First Capital Bank in the principal amount of $4,960,
relating to 36 month lease of vehicle with monthly payments of $475.
***This lease was terminated February 15, 2001 and was replaced by the following
lease: Lease with Siemens as Lessor - $350,472 balance due as of 2/28/01 (new
lease) - 60 month lease ending on 2/28/06 - monthly payments are $7,436.67.
00
XXXXXXX X
XXXXXXXXXX
Xxxx
00
