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Exhibit 10.2
LOAN AGREEMENT
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THIS LOAN AGREEMENT ("Agreement"), dated as of the 30th day of June,
1997, is made and entered into on the terms and conditions hereinafter set
forth, by and between MERGE TECHNOLOGIES INCORPORATED, a Wisconsin corporation
("Borrower"), and SIRROM CAPITAL CORPORATION, a Tennessee corporation
("Lender").
RECITALS:
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WHEREAS, Borrower has requested that Lender make available to Borrower
a term loan in the original principal amount of Two Million and No/l00ths
Dollars ($2,000,000) (the "Loan") on the terms and conditions hereinafter set
forth, and for the purpose(s) hereinafter set forth; and
WHEREAS, in order to induce Lender to make the Loan to Borrower, Borrower
has made certain representations to Lender, and
WHEREAS, Lender, in reliance upon the representations and inducements of
Borrower, has agreed to make the Loan upon the terms and conditions
hereinafter set forth.
AGREEMENT:
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NOW, THEREFORE, in consideration of the agreement of Lender to make the
Loan, the mutual covenants and agreements hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Borrower and Lender hereby agree as follows:
ARTICLE 1
THE LOAN
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1.1 Evidence of Loan Indebtedness and Repayment. Subject to the terms and
conditions hereof, the Lender shall make the Loan to Borrower by wire
transfer in immediately available funds. The Loan shall be evidenced by a
Secured Promissory Note in the original principal amount of Two Million and
No/l00ths Dollars ($2,000,000), substantially in the form of Exhibit A attached
hereto and incorporated herein by this reference (the "Note"), dated as of the
date hereof, executed by Borrower, in favor of Lender. The Loan shall be
payable in accordance with the terms of the Note. The Note, this Agreement and
any other instruments and documents executed by Borrower, any guarantor of
Borrower, or any shareholder, subsidiary or affiliate of Borrower, now or
hereafter evidencing, securing or in any way related to the indebtedness
evidenced by the Note are herein individually referred to as a "Loan Document"
and collectively referred to as the "Loan Documents."
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1.2 Processing Fee. Borrower shall pay Lender a processing fee of Forty
Five Thousand Dollars ($45,000), Twenty Two Thousand Five Hundred Dollars
($22,500) of which has previously been paid to Lender and Twenty Two Thousand
Five Hundred Dollars ($22,500) of which shall be paid on the date the Loan is
funded.
1.3 Prepayment. Borrower may prepay the indebtedness evidenced by the
Note in whole or in part at any time and from time to time, without penalty or
premium.
1.4 Purposes of Loan and Use of Proceeds. The purpose of the Loan shall
be to provide additional working capital for sales and marketing, product
development and the repurchase of shares of capital stock of Borrower not to
exceed $250,000 in the aggregate, and other general corporate purposes.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
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2.1 Borrower's Representations. Borrower hereby represents and warrants
to Lender as follows:
(a) Corporate Status. Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Wisconsin;
and has the corporate power to own and operate its properties, to
carry on its business as now conducted and to enter into and to perform
its obligations under this Agreement and the other Loan Documents to which
it is a party. Borrower is duly qualified to do business and in good
standing in each state in which a failure to be so qualified would have a
material adverse effect on Borrower's financial condition or its ability
to conduct its business in the manner now conducted.
(b) Subsidiaries. Borrower neither owns nor has an interest in,
directly or indirectly, any other corporation, partnership, joint venture
or other business organization ("Subsidiaries"), except for Signal Stream
Incorporated, a wholly-owned subsidiary, which owns certain equipment, but
is not actively engaged in business at this time.
(c) Authorization. Borrower has full legal right, power and authority
to conduct its business and affairs. Borrower has full legal right,
power and authority to enter into and perform its obligations under the
Loan Documents, without the consent or approval of any other person, firm,
governmental agency or other legal entity. The execution and delivery of
this Agreement, the borrowing hereunder, the execution and delivery of
each Loan Document to which Borrower is a party, and the performance by
Borrower of its obligations thereunder are within the corporate powers of
Borrower and have been duly authorized by all necessary corporate action
properly taken, have received all necessary governmental approvals, if any
were required, and do not and will not contravene or conflict with any
provision of law, any applicable judgment, ordinance, regulation or order
of any court or governmental agency, the charter or bylaws of Borrower, or
any agreement binding upon Borrower or its properties.
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The officer(s) executing this Agreement, the Note and all of the other Loan
Documents to which Borrower is a party are duly authorized to act on behalf of
Borrower.
(d) Validity and Binding Effect. This Agreement and the other Loan
Documents are the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms, subject to
limitations imposed by bankruptcy, insolvency, moratorium or other similar
laws affecting the rights of creditors generally or the application of
general equitable principles.
(e) Capitalization. As of the date hereof, the authorized capital stock
of Borrower consists solely of 5,000,000 shares of preferred stock, none
of which are issued (the "Preferred Stock"), and 10,000,000 shares of
common stock, $0.01 par value per share ("Common Stock"), of which
576,327 shares are issued and outstanding (the "Shares") and 48,061
shares of which are reserved for issuance upon exercise of the Stock
Purchase Warrant dated as of the date hereof and issued to Lender (the
"Warrant"); provided, however, that the number of shares reserved for
issuance upon exercise of the Warrant shall be increased from time to time
in accordance with the term of the Warrant. As of the date hereof,
Borrower does not have outstanding any stock or securities convertible or
exchangeable for any shares of its Common Stock or containing any profit
participation features, and does not have outstanding any rights or
options to subscribe for or to purchase its Common Stock or any stock
appreciation rights or phantom stock plans, except as set forth on
Schedule 2.1(e) and for the Warrant. Schedule 2.1(e) accurately sets forth
the following with respect to all outstanding options and rights to
acquire the Borrower's Common Stock from Borrower: (i) the total number of
shares issuable upon exercise of all outstanding options, (ii) the range
of exercise prices for all such outstanding options, (iii) the number of
shares issuable, the exercise price and the expiration date for each such
outstanding option and (iv) with respect to all outstanding options,
warrants and rights to acquire Borrower's capital stock other than the
Warrant, the holder, the number of shares covered, the exercise price and
the expiration date. As of the date hereof, Borrower is not subject to
any obligation (contingent or otherwise) to repurchase, redeem, retire or
otherwise acquire any shares of its capital stock or any warrants,
options or other rights to acquire its capital stock, except as set forth
in the Warrant or on Schedule 2.1(e). As of the date hereof, all of
the outstanding shares of Borrower's capital stock shall be validly
issued, fully paid and nonassessable. Except as set forth on Schedule
2.l(e), there are no statutory or contractual preemptive rights, rights
of first refusal, anti-dilution rights or any similar rights, held by
stockholders or option holders of Borrower, with respect to the issuance
of the Warrant or the issuance of the Common Stock upon exercise of the
Warrant. All such rights granted in the documents listed on Schedule
2.1(e) have been effectively waived with regard to the issuance of the
Warrant, the exercise of the Warrant and the issuance of the Common Stock
upon exercise of the Warrant. Borrower has not, to the best of its
knowledge, violated any applicable federal or state securities laws in
connection with the offer, sale or issuance of any of its capital stock,
and the offer, sale and issuance of the Warrant hereunder do not require
registration under the Securities Act or any applicable state securities
laws. To the best of
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Borrower's knowledge, there are no agreements among Borrower's
stockholders with respect to any other aspect of Borrower's affairs,
except as set forth on Schedule 2.1(e).
(f) Trademarks Patents. Etc. Schedule 2.1(f) is an accurate and
complete list of all federally registered patents, trademarks,
tradenames, trademark registrations, service names, service marks,
copyrights, licenses, formulas and applications therefor owned by Borrower
or used or required by Borrower in the operation of its business, title
to each of which is, except as set forth in Schedule 2.1 (f) hereto, held
by Borrower free and clear of all adverse claims, liens, security
agreements, restrictions or other encumbrances. There is no infringement
action, lawsuit, claim or complaint which asserts that Borrower's
operations violate or infringe the rights or the trade names, trademarks,
trademark registration, service name, service xxxx or copyright of others
with respect to any apparatus or method of Borrower or any adversely held
trademark, trade name, trademark registration, service name, service xxxx
or copyright, and Borrower to the best of its knowledge is not in any way
making use of any confidential information or trade secrets of any person
except with the consent of such person.
(g) No Conflicts. Consummation of the transactions hereby contemplated
and the performance of the obligations of Borrower under and by virtue of
the Loan Documents will not result in any breach of, or constitute
a default under, any mortgage, security deed or agreement, deed of trust,
lease, bank loan or credit agreement, corporate charter or bylaws,
agreement or certificate of limited partnership, partnership agreement,
license, franchise or any other instrument or agreement to which Borrower
is a party or by which Borrower or its respective properties may be bound
or affected or to which Borrower has not obtained an effective waiver.
(h) Litigation. There are no actions, suits or proceedings pending, or,
to the knowledge of Borrower threatened, against or affecting Borrower or
involving the validity or enforceability of any of the Loan Documents at
law or in equity, or before any governmental or administrative agency; and
to Borrower's knowledge, Borrower is not in default with respect to any
order, writ, injunction, decree or demand of any court or any governmental
authority.
(i) Financial Statements. The financial statements of Borrower dated
April 30, 1997, which are attached hereto as Schedule 2.1(i)(A), are true
and correct in all material respects have been prepared on the
basis of accounting principles consistently applied, and fairly present
the financial condition of Borrower as of the date(s) thereof. No material
adverse change has occurred in the financial condition of Borrower since
the date(s) thereof, and no additional borrowings have been made by
Borrower since the date(s) thereof other than as set forth on Schedule
2.1(i)(B).
(j) Other Agreements; No Defaults. Borrower is not a party to any
indenture, loan or credit agreement, lease or other agreement or
instrument, or subject to any charter or corporate restriction,
that could have a material adverse effect on the business, properties,
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assets, operations or conditions, financial or otherwise, of Borrower, or
the ability of Borrower to carry out its obligations under the Loan
Documents to which it is a party. Borrower, to the best of its knowledge,
is not in default in any respect in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained
in any agreement or instrument material to its business to which it is a
party, including but not limited to this Agreement and the other Loan
Documents, and no other default or event has occurred and is continuing
that with notice or the passage of time or both would constitute a default
or event of default under any of same.
(k) Compliance With Law. Borrower has obtained all necessary licenses,
permits and approvals and authorizations necessary or required in order to
conduct its business and affairs as heretofore conducted and as hereafter
intended to be conducted. To Borrower's knowledge, Borrower is in
compliance with all laws, regulations, decrees and orders applicable to it
(including but not limited to laws, regulations, decrees and orders
relating to environmental, occupational and health standards and controls,
antitrust, monopoly, restraint of trade or unfair competition), to the
extent that noncompliance, in the aggregate, cannot reasonably be expected
to have a material adverse effect on its respective business, operations,
property or financial condition and will not materially adversely affect
Borrower's ability to perform its obligations under the Loan Documents.
(l) Debt. Schedule 2.1(1) is a complete and correct list of all credit
agreements, indentures, purchase agreements, promissory notes and other
evidences of indebtedness, guaranties, capital leases and other
instruments, agreements and arrangements presently in effect providing for
or relating to extensions of credit (including agreements and arrangements
for the issuance of letters of credit or for acceptance financing) in
respect of which the Borrower or any of the properties thereof is in any
manner directly or contingently obligated; and the maximum principal or
face amounts of the credit in question that are outstanding and that can
be outstanding are correctly stated, and all liens of any nature given or
agreed to be given as security therefor are correctly described or
indicated in such Schedule.
(m) Taxes. Borrower has filed or caused to be filed all tax returns
that to its knowledge are required to be filed (except for returns that
have been appropriately extended), and has paid, or will pay when due,
all taxes shown to be due and payable on said returns and all other taxes,
impositions, assessments, fees or other charges imposed on them by any
governmental authority, agency or instrumentality, prior to any
delinquency with respect thereto (other than taxes, impositions,
assessments, fees and charges currently being contested in good faith by
appropriate proceedings, for which appropriate amounts have been
reserved). No tax liens have been filed against Borrower or any of the
property thereof.
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(n) Certain Transactions. Except as set forth on Schedule 2.1(n)
hereto, Borrower is not indebted, directly or indirectly, to any of its
shareholders, officers or directors or to their respective spouses or
children, in any amount whatsoever, none of said shareholders, officers or
directors or any members of their immediate families, are indebted to Borrower
or have any direct or indirect ownership interest in any firm or corporation
with which Borrower has a business relationship, or any firm or corporation
which competes with Borrower, except that shareholders, officers and/or
directors of Borrower may own no more than 4.9% of outstanding stock of
publicly traded companies which may compete with Borrower. No shareholder,
officer or director or any member of their immediate families, is, directly or
indirectly, interested in any material contract with Borrower. Borrower is not
a guarantor or indemnitor of any indebtedness of any other person, firm or
corporation.
(o) Statements Not False or Misleading. No representation or warranty
given as of the date hereof by Borrower contained in this Agreement or any
schedule attached hereto or any statement in any document, certificate or other
instrument furnished or to be furnished by Borrower to Lender pursuant hereto,
taken as a whole, contains or will (as of the time so furnished) contain any
untrue statement of a material fact, or omits or will (as of the time so
furnished) omit to state any material fact which is necessary in order to make
the statements contained therein not misleading.
(p) Margin Regulations. Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock. No
proceeds received pursuant to this Agreement will be used to purchase or carry
any equity security of a class which is registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended.
(q) Significant Contracts. Schedule 2.1(q) is a complete and correct
list of all contracts, agreements and other documents pursuant to which
Borrower receives revenues in excess of $25,000 per fiscal year. Each such
contract, agreement and other document is in full force and effect as of the
date hereof and Borrower knows of no reason why such contracts, agreements and
other documents would not remain in full force and effect pursuant to the terms
thereof.
(r) Environment. Borrower has duly complied with, and its business,
operations, assets, equipment, property, leaseholds or other facilities are
in compliance with, the provisions of all federal, state and local
environmental, health, and safety laws, codes and ordinances, and all rules and
regulations promulgated thereunder. Borrower has been issued and will maintain
all required federal, state and local permits, licenses, certificates and
approvals relating to (1) air emissions; (2) discharges to surface water or
groundwater; (3) noise emissions; (4) solid or liquid waste disposal; (5) the
use, generation, storage, transportation or disposal of toxic or hazardous
substances or wastes (which shall include any and all such materials listed in
any federal, state or local law, code or ordinance and all rules and
regulations promulgated thereunder as hazardous or potentially hazardous); or
(6) other environmental, health or safety matters. Borrower has not received
notice of, or knows of, or suspects facts which might constituteany violations
of any federal, state or local
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environmental, health or safety laws, codes or ordinances, and any rules or
regulations promulgated thereunder with respect to its businesses, operations,
assets, equipment, property, leaseholds, or other facilities. Except in
accordance with a valid governmental permit, license, certificate or approval,
there has been no emission, spill, release or discharge into or upon (1) the
air; (2) soils, or any improvements located thereon; (3) surface water or
groundwater; or (4) the sewer, septic system or waste treatment, storage or
disposal system servicing the premises, of any toxic or hazardous substances or
wastes at or from the premises; and accordingly the premises of Borrower are
free of all such toxic or hazardous substances or wastes. There has been no
complaint, order, directive, claim, citation or notice by any governmental
authority or any person or entity with respect to (1) air emissions; (2)
spills, releases or discharges to soils or improvements located thereon,
surface water, groundwater or the sewer, septic system or waste treatment,
storage or disposal systems servicing the premises; (3) noise emissions; (4)
solid or liquid waste disposal; (5) the use, generation, storage,
transportation or disposal of toxic or hazardous substances or waste; or (6)
other environmental, health or safety matters affecting Borrower or its
business, operations, assets, equipment, property, leaseholds or other
facilities. Borrower does not have any indebtedness, obligation or liability
(absolute or contingent, matured or not matured), with respect to the storage,
treatment, cleanup or disposal of any solid wastes, hazardous wastes or other
toxic or hazardous substances (including without limitation any such
indebtedness, obligation, or liability with respect to any current regulation,
law or statute regarding such storage, treatment, cleanup or disposal).
(s) Fees/Commissions. Borrower has not agreed to pay any finder's fee,
commission, origination fee (except for the processing and commitment fees due
pursuant to Section 1.2) or other fee or charge to any person or entity with
respect to the Loan and investment transactions contemplated hereunder.
(t) ERISA. To the best of Borrower's knowledge, Borrower is in compliance
in all material respect with all applicable provisions of ERISA as defined in
Section 3.11 hereof). To the best of Borrower's knowledge, neither a reportable
event nor a prohibited transaction (as defined in ERISA) has occurred and is
continuing with respect to any Plan (as defined in Section 3.11 hereof); no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated; to the best of Borrower's knowledge, no circumstances exist which
constitute grounds entitling the Pension Benefit Guaranty Corporation (together
with any entity succeeding to or all of its functions, the "PBGC") to
institute proceedings to terminate, or appoint a trustee to administer, a Plan,
nor has the PBGC instituted any such proceedings; neither Borrower nor any
commonly controlled entity (as defined in ERISA) has completely or partially
withdrawn from a multiemployer plan(as defined in ERISA); Borrower and each
commonly controlled entity has met its minimum funding requirements under ERISA
with respect to all of its Plans and the present fair market value of all Plan
property exceeds the present value of all vested benefits under each Plan, as
determined on the most recent valuation date of the Plan and in accordance with
the provisions of ERISA and the regulations thereunder for calculating the
potential liability of Borrower or any commonly controlled
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entity to the PBGC or the Plan under Title IV or ERISA; and neither
Borrower nor any commonly controlled entity has incurred any liability to
the PBGC under ERISA.
(u) Title to Properties. Borrower has good, indefeasible and
insurable title to, or valid leasehold interests in, all its real
properties and good title to its other assets, free and clear of all liens
other than Permitted Liens (as defined in Section 3.15 hereof).
(v) Limited Offering of Note and Warrant. Neither Borrower nor anyone
acting on its behalf has offered the Note, the Warrant or any similar
securities for sale to, or solicited any offer to buy any of the same
from, or otherwise approached or negotiated in respect thereof, with, any
person other than Lender and not more than 35 other institutional
investors. Neither Borrower nor anyone acting on its behalf has taken, or
will take, any action which would subject the issuance or sale of the Note
and Warrant to Section 5 of the Securities Act of 1933, as amended, or the
registration or qualification provisions of the blue sky laws of any state.
(w) Registration Rights. Except as described in the Warrant,
Borrower is not under any obligation to register under the Securities Act
of 1933, as amended, or the Trust Indenture Act of 1939, as amended, any of
its presently outstanding securities or any of its securities that may
subsequently be issued.
(x) Employees. To the best of Borrower's knowledge, Borrower has no
current labor problems or disputes which have resulted or Borrower
reasonably believes could be expected to have a material adverse effect.
(y) Issuance Taxes. All taxes imposed on Borrower in connection with
the issuance, sale and delivery of the Note, the Warrant and the capital
stock issuable upon exercise of the Warrant have been or will be fully
paid, and all laws imposing such taxes have been or will be fully satisfied
by Borrower.
ARTICLE 3
COVENANTS AND AGREEMENTS
Borrower covenants and agrees that during the term of this Agreement:
3.1 Payment of Obligations. Borrower shall pay the indebtedness
evidenced by the Note according to the terms thereof, and shall timely pay or
perform, as the case may be, all of the other obligations of Borrower to
Lender, direct or contingent, however evidenced or denominated, and however and
whenever incurred, including but not limited to indebtedness incurred pursuant
to any present or future commitment of Lender to Borrower, together with
interest thereon, and any extensions, modifications, consolidations and/or
renewals thereof and any notes given in payment thereof.
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3.2 Financial Statements and Reports. Borrower shall furnish to Lender
(i) as soon as practicable and in any event within ninety (90) days after the
end of each fiscal year of Borrower (except that with respect to the fiscal
year ended December 31, 1996, the required audited statements will be delivered
no later than forty-five (45) days following the execution of this Agreement),
an audited balance sheet of Borrower as of the close of such fiscal year, an
audited statement of earnings and retained earnings of Borrower as of the close
of such fiscal year and an audited statement of cash flows for Borrower for
such fiscal year, prepared in accordance with generally accepted accounting
principles consistently applied and accompanied by an unqualified audit report
prepared by an independent certified public accountant acceptable to Lender
showing the financial condition of Borrower at the close of such year and the
results of its operations during such year and accompanied by a certificate of
the President of Borrower, stating that to the best of the knowledge of such
officer, Borrower has kept, observed, performed and fulfilled each covenant,
term and condition of this Agreement and the other Loan Documents during the
preceding fiscal year and that no Event of Default has occurred and is
continuing (or if an Event of Default has occurred and is continuing,
specifying the nature of same, the period of existence of same and the action
Borrower proposes to take in connection therewith), (ii) within fifteen (15)
days of the end of each calendar month, a status report indicating the
financial performance of Borrower during such month and the financial position
of Borrower as of the end of such month, (iii) within thirty (30) days of the
end of each quarter, a balance sheet of Borrower as of the close of such
quarter and a statement of earnings and retained earnings of Borrower as of the
close of such quarter, all in reasonable detail, and prepared substantially in
accordance with generally accepted accounting principles consistently applied
(except for the absence of footnotes and subject to year-end adjustments), and
(iv) with reasonable promptness, such other financial data as Lender may
reasonably request. Without Lender's prior written consent, Borrower shall not
modify or change any accounting policies or procedures in effect on the date
hereof.
3.3 Maintenance of Books and Records; Inspection. Borrower shall maintain
its books, accounts and records in accordance with generally accepted
accounting principles consistently applied, and after reasonable notice from
Lender permit Lender, its officers and employees and any professionals
designated by Lender in writing, at Borrower's expense, to visit and inspect
any of its properties, corporate books and financial records, and to discuss
its accounts, affairs and finances with Borrower or the principal officers of
Borrower during reasonable business hours, all at such times as Lender may
reasonably request; provided that no such inspection shall materially interfere
with the conduct of Borrower's business.
3.4 Insurance. Without limiting any of the requirements of any of the other
Loan Documents, Borrower shall maintain, in amounts customary for entities
engaged in comparable business activities, (i) to the extent required by
applicable law, worker's compensation insurance (or maintain a legally
sufficient amount of self insurance against worker's compensation liabilities,
with adequate reserves, under a plan approved by Lender, such approval not to
be unreasonably withheld or delayed), and (ii) fire and "all risk" casualty
insurance on its properties against such hazards and in at least such amounts
as are customary in Borrower's business. Borrower will make reasonable efforts
to obtain and maintain public liability insurance in an amount, and at a cost,
deemed reasonable
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to the Borrower's Board of Directors. At the request of Lender, Borrower will
deliver forthwith a certificate specifying the details of such insurance in
effect.
3.5 Taxes and Assessments. Borrower shall (i) file all tax
returns and appropriate schedules thereto that are required to be filed under
applicable law, prior to the date of delinquency, (ii) pay and discharge all
taxes, assessments and governmental charges or levies imposed upon Borrower
upon its income and profits or upon any properties belonging to it, prior to
the date on which penalties attach thereto, and (iii) pay all taxes,
assessments and governmental charges or levies that, if unpaid, might become a
lien or charge upon any of its properties; provided, however, that Borrower in
good faith may contest any such tax, assessment, governmental charge or levy
described in the foregoing clauses (ii) and (iii) so long as appropriate
reserves are maintained with respect thereto.
3.6 Corporate Existence. Borrower shall maintain its corporate existence and
good standing in the state of its incorporation, and its qualification and
good standing as a foreign corporation in each jurisdiction in which such
qualification is necessary pursuant to applicable law.
3.7 Compliance with Law and Other Agreements. Except where the failure
to do so would not materially adversely affect Borrower's operations or its
ability to fulfill its obligations under the Loan Documents, Borrower shall
maintain its business operations and property owned or used in connection
therewith in compliance with (i) all applicable federal, state and local laws,
regulations and ordinances governing such business operations and the use and
ownership of such property, and (ii) all material agreements, licenses,
franchises, indentures and mortgages to which Borrower is a party or by which
Borrower or any of its properties is bound. Without limiting the foregoing,
Borrower shall pay all of its indebtedness promptly in accordance with the
terms thereof.
3.8 Notice of Default. Borrower shall give written notice to Lender of
the occurrence of any default, event of default or Event of Default under this
Agreement or any other Loan Document promptly upon the occurrence thereof.
3.9 Notice of Litigation. Borrower shall give notice, in writing, to
Lender of (i) any actions, suits or proceedings, instituted by any persons
whomsoever against Borrower or affecting any of the assets of Borrower wherein
the amount at issue is in excess of Twenty-Five Thousand and No/l00ths Dollars
($25,000.00), and (ii) any dispute, not resolved within sixty (60) days of
the commencement thereof, between Borrower on the one hand and any governmental
regulatory body on the other hand, which dispute might materially interfere
with the normal operations of Borrower.
3.10 Conduct of Business. Borrower will continue to engage in a business of
the same general type and manner as conducted by it on the date of this
Agreement.
3.11 ERISA Plan. If Borrower has in effect, or hereafter institutes, a
pension plan that is subject to the requirements of Title IV of the Employee
Retirement Income Security Act of 1974, Pub. L. No. 93-406, September 2, 1974,
88 Stat. 829, 29 U.S.C.A. Section 1001 et seq. (1975), as amended from time to
time ("ERISA"), then the following warranty and covenants shall be applicable
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during such period as any such plan the ("Plan") shall be in effect: (i)
Borrower hereby warrants that no fact that might constitute grounds for the
involuntary termination of the Plan, or for the appointment by the appropriate
United States District Court of a trustee to administer the Plan, exists at the
time of execution of this Agreement, (ii) Borrower hereby covenants that
throughout the existence of the Plan, Borrower's contributions under the Plan
will meet the minimum funding standards required by ERISA and Borrower will
not institute a distress termination of the Plan, and (iii) Borrower covenants
that it will send to Lender a copy of any notice of a reportable event (as
defined in ERISA) required by ERISA to be filed with the Labor Department or
the Pension Benefit Guaranty Corporation, at the time that such notice is so
filed.
3.12 Dividends, Distributions, Stock Rights, etc. Borrower shall not
declare or pay any dividend of any kind (other than stock dividends payable to
all holders of any class of capital stock), in cash or in property, on any
class of the capital stock of Borrower, or purchase, redeem, retire or
otherwise acquire for value any shares of such stock, nor make any distribution
of any kind in cash or property in respect thereof, nor make any return of
capital of shareholders, nor make any payments in cash or property in respect
of any stock options, stock bonus or similar plan (except as required or
permitted hereunder), nor grant any preemptive rights with respect to the
capital stock of Borrower, without the prior written consent of Lender.
Notwithstanding the foregoing, Borrower may (i) use up to Two Hundred Fifty
Thousand Dollars ($250,000) of the proceeds of the Loan to repurchase shares of
capital stock of the Borrower, and (ii) should Alpha Capital Venture Partners
L.P. ("Alpha") exercise its "put" right with respect to the capital stock of
Borrower owned by Alpha, then the purchase of such stock in such instance will
not be a breach of this Section 3.12.
3.13 Guaranties; Loans; Payment of Debt. Without Lender's prior express
written consent, Borrower shall not guarantee nor be liable in any manner,
whether directly or indirectly, or become contingently liable after the date of
this Agreement in connection with the obligations or indebtedness of any person
or entity whatsoever, except for the endorsement of negotiable instruments
payable to Borrower for deposit or collection in the ordinary course of
business. Without Lender's prior express written consent, which shall not
unreasonably be withheld, Borrower shall not (i) make any loan, advance or
extension of credit to any person other than in the normal course of its
business, or (ii) make any payment on any subordinated debt.
3.14 Debt. Without the express prior written consent of Lender,
Borrower shall not create, incur, assume or suffer to exist indebtedness of any
description whatsoever, excluding:
(a) the indebtedness evidenced by the Note;
(b) the endorsement of negotiable instruments payable to Borrower for deposit
or collection in the ordinary course of business;
(c) trade payables incurred in the ordinary course of business
(d) the indebtedness listed on Schedule 2.1(1) hereto; and
(e) indebtedness incurred pursuant to the terms of a senior secured
revolving credit facility (the "Senior Credit Facility") in an amount
not to exceed Two Million Five Hundred Thousand Dollars ($2,500,000),
provided that initially amounts outstanding under the Senior Credit
Facility ("Permitted Borrowings") may not exceed at any time
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One million Five Hundred Thousand Dollars ($ 1,500,000) and provided
further that Permitted Borrowings shall be increased to (i) Two Million
Dollars ($2,000,000) in the event that Borrower achieves EBITDA of Two
Million Dollars ($2,000,000) for the fiscal year ended December 31, 1997
and (ii) Two Million Five Hundred Thousand Dollars ($2,500,000) in the
event that Borrower achieves EBITDA of Two Million Dollars ($2,000,000)
for the fiscal year ended December 31, 1997 and EBITDA of One Million
Two Hundred and Fifty Thousand Dollars ($1,250,000) for any six (6)
month period thereafter. EBITDA shall be calculated in accordance with
generally accepted accounting principles consistently applied and
evidenced by audited financial statements. Notwithstanding the
foregoing, the financial statements for the six-month period need not
be audited; provided that should Lender wish to have such financial
statements audited, it may do so at Lender's sole cost and expense, by
delivery of written notice to Borrower within ten (10) days following
receipt of such statement, provided further that if such audit results
in an EBITDA of less than $1,250,000 for such six-month period, then
Borrower shall pay such expenses.
3.15 No Liens. Borrower shall not create, incur, assume or suffer to
exist any lien, security interest, security title, mortgage, deed of trust or
other encumbrance upon or with respect to any of its properties, now owned or
hereafter acquired, except the following permitted liens (the "Permitted
Liens"):
(a) liens in favor of Lender,
(b) liens for taxes or assessments or other governmental charges or levies
if not yet due and payable;
(c) liens in connection with the leasing or purchase money financing of
equipment or software in favor of the Lessor of such equipment;
(d) liens described on Schedule 2.1(1) hereto; and
(e) liens securing the indebtedness permitted under Section 3.14(e) above.
3.16 Mergers, Consolidations, Acquisitions and Sales. Without the prior
written consent of Lender, which consent shall not be unreasonably withheld,
Borrower shall not (a) be a party to any merger, consolidation or corporate
reorganization, nor (b) purchase or otherwise acquire all or substantially all
of the assets or stock of, or any partnership or joint venture interest in, any
other person, firm or entity, nor (c) sell, transfer, convey, grant a security
interest in or lease all or any substantial part of its assets, nor (d) create
any Subsidiaries nor convey any of its assets to any Subsidiary.
3.17 Transactions With Affiliates. Except as set forth on Schedule 3.17,
Borrower shall not enter into any transaction, including, without limitation,
the purchase, sale or exchange of property or the rendering of any service,
with any affiliate, except (i) in the ordinary course of and pursuant to the
reasonable requirements of Borrower's business and upon fair and reasonable
terms no less favorable to Borrower than Borrower would obtain in a comparable
arm's length transaction with a person not an affiliate; or (ii) for
transactions substantially similar to those affiliate transactions
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presently in place with LaSalle Investments, Inc. For the purposes of this
Section 3.l7, "affiliate" shall mean a person, corporation, partnership or
other entity controlling, controlled by or under common control with Borrower.
3.l8 Environment. Borrower shall be and remain in compliance with the
provisions of all federal, state and local environmental, health, and safety
laws, codes and ordinances, and all rules and regulations issued thereunder;
notify Lender immediately of any notice of a hazardous discharge or
environmental complaint received from any governmental agency or any other
party; notify Lender immediately of any hazardous discharge from or affecting
its premises; immediately contain and remove the same, in compliance with all
applicable laws; promptly pay any fine or penalty assessed in connection
therewith; permit Lender to inspect the premises, to conduct tests thereon,
and to inspect all books, correspondence, and records pertaining thereto; and
at Lender's request, and at Borrower's expense, provide a report of a
qualified environmental engineer, satisfactory in scope, form, and content to
Lender, and such other and further assurances reasonably satisfactory to
Lender that the condition has been corrected.
3.19 Landlord's Consent. Borrower hereby agrees to deliver to Lender within
thirty (30) days of the date hereof, a Landlord's Consent and Subordination of
Lien, executed by Borrower's landlord, in substantially the form attached
hereto as Exhibit E and incorporated herein by this reference.
ARTICLE 4
CONDITIONS TO CLOSING
4.l Closing of the Loan. The obligation of Lender to fund the Loan on the
date hereof (the "Closing Date") is subject to the fulfillment, on or prior to
the Closing Date, of each of the following conditions:
(a) Borrower shall have performed and complied in all material respects
with all of the covenants, agreements, obligations and conditions required by
this Agreement.
(b) Lender shall have received an opinion of the Borrower's counsel,
Xxxxxxx & Xxxxxxxx, Ltd., dated the Closing Date, in form and substance
satisfactory to Lender's counsel, Xxxxxxxx & Xxxxxxxx, P.C.;
(c) Borrower shall have delivered to Lender a Note executed by
Borrower, substantially in the form of Exhibit A attached hereto and
incorporated herein by this reference.
(d) Borrower shall have delivered to Lender a Stock Purchase Warrant
executed by, Borrower, substantially in the form of Exhibit B attached hereto
and incorporated herein by this reference.
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(e) Borrower shall have delivered to Lender a Security Agreement
executed by Borrower and a related UCC-1 Financing Statement executed by
Borrower, each of which is substantially in the form of Exhibit C attached
hereto and incorporated herein by this reference.
(f) Borrower shall have delivered to Lender a Copyright and Royalty
Security Agreement executed by Borrower substantially in the form of Exhibit
D attached hereto and incorporated herein by this reference.
(g) Borrower shall have delivered to Lender a Trademark and Patent
Security Agreement executed by Borrower in the form of Exhibit F attached
hereto and incorporated herein by this reference.
(h) Lender shall have received copies of the corporate charter and
other publicly filed organizational documents of Borrower, certified by the
Secretary of State or other appropriate public official in the jurisdiction
in which Borrower is incorporated.
(i) Lender shall have received certified (as of the date of this
Agreement) copies of all corporate action taken by Borrower, including
resolutions of its Board of Directors, authorizing the execution, delivery
and performance of the Loan Documents.
(j) Lender shall have received a certificate as to the legal existence
and good standing of the Borrower, issued by the Secretary of State or other
appropriate public official in the jurisdiction in which the Borrower is
incorporated.
(k) Lender shall have received certificates of the Secretaries of State
or other appropriate public officials as to Borrower's qualification to do
business and good standing in each jurisdiction in which a failure to be so
qualified would have a material adverse effect on its financial condition or
its ability to conduct its business in the manner now conducted and as
hereafter intended to be conducted.
(l) Lender shall have received an Authorization Agreement for
Pre-Authorized Payments (Debit) executed by Borrower, in substantially the
form of Exhibit G attached hereto and incorporated herein by this reference.
ARTICLE 5
DEFAULT AND REMEDIES
5.1 Events of Default. The occurrence of any of the following shall
constitute an Event of Default hereunder:
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(a) Default in the payment of the principal of or interest on the
indebtedness evidenced by the Note in accordance with the terms of the Note,
which default is not cured within five (5) days;
(b) Any material misrepresentation by Borrower, any guarantor of the
Loan, or any shareholder, subsidiary or affiliate of Borrower as to any
material matter hereunder or under any of the other Loan Documents, or
delivery by Borrower of any schedule, statement, resolution, report,
certificate, notice or writing to Lender that is untrue in any material
respect on the date as of which the facts set forth therein are stated or
certified;
(c) Failure of Borrower, any guarantor of the Loan, or any shareholder,
subsidiary or affiliate of Borrower to perform any of its obligations,
covenants or agreements under this Agreement, the Note or any of the other
Loan Documents;
(d) Borrower (i) shall generally not pay or shall be unable to pay its
debts as such debts become due; or (ii) shall make an assignment for the
benefit of creditors or petition or apply to any tribunal for the appointment
of a custodian, receiver or trustee for it or a substantial part of its
assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
(iv) shall have had any such petition or application filed or any such
proceeding commenced against it in which an order for relief is entered or an
adjudication or appointment is made; or (v) shall indicate, by any act or
intentional and purposeful omission, its consent to, approval of or
acquiescence in any such petition, application, proceeding or order for
relief or the appointment of a custodian, receiver or trustee for it or a
substantial part of its assets; or (vi) shall suffer any such custodianship,
receivership or trusteeship to continue undischarged for a period of sixty
(60) days or more;
(e) Borrower shall be liquidated, dissolved, partitioned or terminated,
or the charter thereof shall expire or be revoked;
(f) A default or event of default shall occur under any of the other
Loan Documents and, if subject to a cure right, such default or event of
default shall not be cured within the applicable cure period;
(g) Borrower shall default in the timely payment or performance of any
obligation now or hereafter owed to Lender in connection with any other
indebtedness of Borrower now or hereafter owed to Lender;
(h) Borrower shall have defaulted and continue to be in default in the
timely payment of or performance of any covenant relating to any other
indebtedness or obligation, which in the aggregate exceeds Twenty-Five
Thousand and No/100ths Dollars ($25,000.00) or materially adversely affects
Borrower's financial condition; or
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(i) Xxxxxxx Xxxxxxxxx shall cease to serve as an executive of Borrower
and a suitable replacement agreeable to Lender shall not have been hired by
Borrower within thirty (30) days thereafter.
With respect to any Event of Default described above that is capable of
being cured and that does not already provide its own cure procedure (a
"Curable Default"), the occurrence of such Curable Default shall not constitute
an Event of Default hereunder if such Curable Default is fully cured and/or
corrected within thirty (30) days (ten (10) days, if such Curable Default may
be cured by payment of a sum of money) of notice thereof to Borrower given in
accordance with the provisions hereof.
5.2 Acceleration of Maturity; Remedies. Upon the occurrence of any
Event of Default described in subsection 5.l(d), the indebtedness evidenced by
the Note as well as any and all other indebtedness of Borrower to Lender shall
be immediately due and payable in full; and upon the occurrence of any other
Event of Default described above, Lender at any time thereafter may at its
option accelerate the maturity of the indebtedness evidenced by the Note as
well as any and all other indebtedness of Borrower to Lender; with notice equal
to the Curable Default cure period, to the extent it is a Curable Default. Upon
the occurrence of any such Event of Default and the acceleration of the
maturity of the indebtedness evidenced by the Note:
(a) Lender shall be immediately entitled to exercise any and all rights
and remedies possessed by Lender pursuant to the terms of the Note and all of
the other Loan Documents; and
(b) Lender shall have any and all other rights and remedies that Lender
may now or hereafter possess at law, in equity or by statute.
5.3 Remedies Cumulative; No Waiver. No right, power or remedy conferred
upon or reserved to Lender by this Agreement or any of the other Loan Documents
is intended to be exclusive of any other right, power or remedy, but each and
every such right, power and remedy shall be cumulative and concurrent and shall
be in addition to any other right, power and remedy given hereunder, under any
of the other Loan Documents or now or hereafter existing at law, in equity or
by statute. No delay or omission by Lender to exercise any right, power or
remedy accruing upon the occurrence of any Event of Default shall exhaust or
impair any such right, power or remedy or shall be construed to be a waiver
of any such Event of Default or an acquiescence therein, and every right,
power and remedy given by this Agreement and the other Loan Documents to Lender
may be exercised from time to time and as often as may be deemed expedient by
Lender.
5.4 Proceeds of Remedies. Any or all proceeds resulting from the exercise of
any or all of the foregoing remedies shall be applied as set forth in the Loan
Document(s) providing the remedy or remedies exercised; if none is specified,
or if the remedy is provided by this Agreement, then as follows:
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First, to the costs and expenses, including without limitation
reasonable attorney's fees, incurred by Lender in connection with the
exercise of its remedies;
Second, to the expenses of curing the default that has occurred, in the
event that Lender elects, in its sole discretion, to cure the default that
has occurred;
Third, to the payment of the obligations of Borrower under the Loan
Documents (the "Obligations"), including but not limited to the payment of
the principal of and interest on the indebtedness evidenced by the Note,
first against unpaid interest, and second, against principal; and
Fourth, the remainder, if any, to Borrower or to any other person
lawfully thereunto entitled.
ARTICLE 6
TERMINATION
6.1 Termination of this Agreement. This Agreement shall remain in full
force and effect until the later of (i) the Maturity Date (as defined in the
Note), or (ii) the payment by Borrower of all amounts owed to Lender, at
which time Lender shall cancel the Note and deliver it to Borrower; provided,
however, that if at any time Borrower has satisfied all obligations to Lender,
Borrower may terminate this Agreement by providing written notice to Lender.
ARTICLE 7
MISCELLANEOUS
7.1 Performance by Lender. If Borrower shall default in the payment,
performance or observance of any covenant, term or condition of this Agreement,
which default is not cured within the applicable cure period, then Lender may,
at its option, pay, perform or observe the same, and all payments made or costs
or expenses incurred by Lender in connection therewith (including but not
limited to reasonable attorney's fees), with interest thereon at the highest
default rate provided in the Note (if none, then at the maximum rate from time
to time allowed by applicable law), shall be immediately repaid to Lender by
Borrower and shall constitute a part of the Obligations. Lender shall be the
sole judge of the necessity for any such actions and of the amounts to be paid.
7.2 Successors and Assigns Included in Parties. Whenever in this
Agreement one of the parties hereto is named or referred to, the heirs, legal
representatives, successors, successors-in-title and assigns of such parties
shall be included, and all covenants and agreements contained in this Agreement
by or on behalf of Borrower or by or on behalf of Lender shall bind and inure
to the benefit of their respective heirs, legal representatives,
successors-in-title and assigns, whether so expressed or not.
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7.3 Costs and Expenses. Borrower agrees to pay all reasonable costs and
expenses incurred by Lender in connection with the making of the Loan (which
expenses shall not exceed $20,000), including but not limited to filing fees,
recording taxes and reasonable attorneys' fees, promptly upon demand of Lender.
Borrower further agrees to pay all premiums for insurance required to be
maintained by Borrower pursuant to the terms of the Loan Documents and all of
the out-of-pocket costs and expenses incurred by Lender in connection with the
collection of the Loan, amendment to the Loan Documents, or prepayment of the
Loan, including but not limited to reasonable attorneys' fees, promptly upon
demand of Lender.
7.4 Assignment. The Note, this Agreement and the other Loan Documents may
be endorsed, assigned and/or transferred in whole or in part by Lender, and any
such holder and/or assignee of the same shall succeed to and be possessed of
the rights and powers of Lender under all of the same to the extent transferred
and assigned. Lender may grant participations in all or any portion of its
interest in the indebtedness evidenced by the Note, and in such event Borrower
shall continue to make payments due under the Loan Documents to Lender and
Lender shall have the sole responsibility of allocating and forwarding such
payments in the appropriate manner and amounts. Borrower shall not assign any
of its rights nor delegate any of its duties hereunder or under any of the
other Loan Documents without the prior express written consent of Lender.
7.5 Time of the Essence. Time is of the essence with respect to each
and every covenant, agreement and obligation of Borrower hereunder and under
all of the other Loan Documents.
7.6 Severability. If any provision(s) of this Agreement or the application
thereof to any person or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such provisions
to other persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
7.7 Interest and Loan Charges Not to Exceed Maximum Allowed by Law. Anything
in this Agreement, the Note or any of the other Loan Documents to the contrary
notwithstanding, in no event whatsoever, whether by reason of advancement of
proceeds of the Loan, acceleration of the maturity of the unpaid balance of the
Loan or otherwise, shall the interest and loan charges agreed to be paid to
Lender for the use of the money advanced or to be advanced hereunder exceed the
maximum amounts collectible under applicable laws in effect from time to time.
It is understood and agreed by the parties that, if for any reason whatsoever
the interest or loan charges paid or contracted to be paid by Borrower in
respect of the indebtedness evidenced by the Note shall exceed the maximum
amounts collectible under applicable laws in effect from time to time, then
ipso facto, the obligation to pay such interest and/or loan charges shall be
reduced to the maximum amounts collectible under applicable laws in effect from
time to time, and any amounts collected by Lender that exceed such maximum
amounts shall be applied to the reduction of the principal balance of the
indebtedness evidenced by the Note and/or refunded to Borrower so that at no
time shall the interest or loan charges paid or payable in respect of the
indebtedness evidenced by the note exceed the maximum amounts permitted from
time to time by applicable law.
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7.8 Article and Section Headings; Defined Terms. Numbered and titled
article and section headings and defined terms are for convenience only and
shall not be construed as amplifying or limiting any of the provisions of this
Agreement.
7.9 Notices. Any and all notices, elections or demands permitted or required
to be made under this Agreement shall be in writing, signed by the
party giving such notice, election or demand and shall be delivered
personally, telecopied, telexed, or sent by certified mail or overnight via
nationally recognized courier service (such as Federal Express), to the other
party at the address set forth below, or at such other address as may be
supplied in writing and of which receipt has been acknowledged in writing. The
date of personal delivery or telecopy or two (2) business days after the date
of mailing (or the next business day after delivery to such courier service),
as the case may be, shall be the date of such notice, election or demand. For
the purposes of this Agreement:
The Address of Lender is: Sirrom Capital Corporation
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telecopy No.: 615/726- 1208
with a copy to: Xxxxxxxx & Xxxxxxxx, P.C.
Xxxxx 000
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx-Xxxx Xxxxxxxx, Esq.
Telecopy No.: 615/256-9958
The Address of Borrower is: Merge Technologies Incorporated
0000 Xxxxx 00xx Xxxxxx
Xxxxx X-000X
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telecopy No.: 414/475-3940
with a copy to: Xxxxxxx & Xxxxxxxx, Ltd.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy No.: 312/527-5921
7.10 Entire Agreement. This Agreement and the other written agreements
between Borrower and Lender represent the entire agreement between the parties
concerning the subject matter hereof, and all oral discussions and prior
agreements are merged herein; provided, if there is a conflict between this
Agreement and any other document executed contemporaneously herewith
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with respect to the Obligations, the provision of this Agreement shall
control. The execution and delivery of this Agreement and the
other Loan Documents by the Borrower were not based upon any fact or material
provided by Lender, nor was the Borrower induced or influenced to enter into
this Agreement or the other Loan Documents by any representation, statement,
analysis or promise by Lender.
7.11 Governing Law and Amendments. This Agreement and all of the Loan
Documents shall be construed and enforced under the laws of the State of
Tennessee applicable to contracts to be wholly performed in such State. No
amendment or modification hereof shall be effective except in a writing
executed by each of the parties hereto.
7.12 Survival of Representations and Warranties. All
representations and warranties contained herein or in any of the Loan
documents or made by or furnished on behalf of the Borrower in
connection herewith or in any Loan Documents shall survive the
execution and delivery of this Agreement and all other Loan
Documents.
7.13 Jurisdiction and Venue. Borrower hereby consents to the jurisdiction of
the courts of the State of Tennessee and the United States District Court for
the Middle District of Tennessee, as well as to the jurisdiction of all courts
from which an appeal may be taken from such courts, for the purpose of any
suit, action or other proceeding arising out of any of its obligations arising
under this Agreement or any other Loan Documents or with respect to the
transactions contemplated hereby, and expressly waives any and all objections
it may have as to venue in any of such courts.
7.14 Waiver of Trial by Jury. LENDER AND BORROWER HEREBY WAIVE TRIAL BY
JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN
CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT OR THE LOAN DOCUMENTS.
7.15 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties to this Agreement in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same Agreement.
7.16 Construction and Interpretation. Should any provision of this
Agreement require judicial interpretation, the parties hereto agree that the
court interpreting or construing the same shall not apply a presumption that
the terms hereof shall be more strictly construed against one party by reason
of the rule of construction that a document is to be more strictly construed
against the party that itself or through its agent prepared the same, it being
agreed that the Borrower, Lender and their respective agents have participated
in the preparation hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers, as
of the day and year first above written.
LENDER:
SIRROM CAPITAL CORPORATION, a
Tennessee corporation
By: /s/ Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx
Title: Vice President
BORROWER:
MERGE TECHNOLOGIES INCORPORATED,
a Wisconsin corporation
By: /S/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx
Title: Chief Financial Officer
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INDEX OF SCHEDULES AND ATTACHMENTS
Exhibit A - Form of Note
Exhibit B - Form of Stock Purchase Warrant
Exhibit C - Form of Security Agreement and UCC-1
Exhibit D - Form of Copyright and Royalty Security Agreement
Exhibit E - Landlord's Consent and Subordination of Lien
Exhibit F - Form of Trademark and Patent Security Agreement
Exhibit G - Form of Authorization Agreement for Pre-Authorized Payments (Debit)
Schedule 2.1(b) - Subsidiaries
Schedule 2.1(e) - Stockholder Rights, etc.
Schedule 2.1(f) - Trademarks and Patents
Schedule 2.1(i)(A) and (B) - Financial Statements
Schedule 2.1(1) - Debt and Liens
Schedule 2.1(n) - Certain Transactions
Schedule 2.1(q) - Significant Contracts
Schedule 3.17 - Transactions with Affiliates
