EXHIBIT 10.25
FINANCING AGREEMENT
DECEMBER 23, 2002
This Financing Agreement is entered into by and between Itasca Business
Credit, Inc. ("Lender") and XATA Corporation ("Borrower").
SECTION I. LOAN AGREEMENT
At Borrower's request, Lender in its sole discretion may lend to
Borrower up to eighty percent (80.0%) of the net amount of accounts (as that
term is defined in the Uniform Commercial Code) that are listed in current
schedules provided by Borrower and that are deemed eligible for advances by
Lender, or any greater or lesser percentage at Lender's absolute discretion.
Furthermore, Lender in its sole discretion will create a forty percent (40.0%)
reserve on all new accounts until the initial invoice has been paid, at which
time the reserve would be lifted on an account by account basis. Loans for
additional sums requested by Borrower may be made at Lender's sole discretion
based upon Lender's valuation of other collateral or other factors. All loans
made pursuant hereto shall be due on demand and shall be evidenced by a
Revolving Note dated DECEMBER 23, 2002 herewith payable to Lender's order. All
loans made pursuant hereto are secured by a security interest in the accounts
and other collateral, as granted to Lender by the Security Agreement between
Borrower and Lender dated DECEMBER 23, 2002.
At Lender's discretion, Lender may from time to time make additional
loans to Borrower on a demand basis, evidenced by Term Note(s). All of the
collateral pledged to Lender shall secure all of Borrower's obligations under
the Revolving Note and any Term Note(s).
Lender may from time to time furnish to Borrower a statement of
Borrower's account. Any such statement shall be conclusive unless and except as
written objections thereto calling Lender's attention to errors are received by
Lender within 30 days after it is mailed or delivered to Borrower.
SECTION II. CHARGES
A. Borrower agrees to pay interest on the net balance owed to Lender at
the close of each day at a rate per annum (computed on the basis of actual
number of days elapsed and a year of 360 days) that is two and nine tenths
percent (2.9%) in excess of the publicly announced prime rate (or other publicly
announced prime rate) of interest charged by U.S. Bank, N.A. Such interest will
be due and payable to Lender at the close of each month. Borrower understands
that the foregoing interest rate may not represent the lowest rate charged by
the foregoing lender.
B. If a third party participates in the advances to Borrower, however,
the charge with respect to the portion of the borrowings represented by the
third party's advances will be the amount of its charges and a management fee of
1/2% charged by Lender by reason of such participation.
C. There will be a net minimum interest charge payable to Lender of
$3,000.00 per month. Borrower further agrees that if this agreement is
terminated under Section VIII hereof, regardless of the date of such
termination, the total charges which shall have been paid or which shall be
payable net to Lender, shall not be less than $3,000.00 each month for a minimum
of twelve months.
D. Borrower shall pay an amount equal to one percent (1.0%) per annum
of the Revolving Note payable to Lender at time of initial funding and every one
year anniversary date thereafter until such time that the Revolving Note is
paid.
E. Borrower agrees to pay a charge of $2,500.00 per quarter plus
out-of-pocket expenses incurred by Lender in conducting audits and inspections
of Borrower's books.
F. Borrower agrees to pay a wire transfer charge of $15.00 for every
wire transfer processed by Lender and $15.00 for any returned checks charged
against its account for funds deposited on Borrower's behalf.
SECTION III. LISTING ACCOUNTS
A. Prior to or concurrently with Borrower's initial borrowing
hereunder, and monthly thereafter, Borrower shall furnish to Lender a list and
aging of all accounts owned by Borrower, in form acceptable to Lender; and
weekly, or at other intervals mutually agreed upon, Borrower will deliver to
Lender a list of all accounts created or acquired by Borrower since its last
previous list and aging of accounts.
B. Borrower warrants that, except as may be disclosed in the lists of
accounts furnished to Lender: each billing correctly states the subject matter
and terms of sale; the merchandise conforms thereto and is in all respects
acceptable to the customer; the date of billing is not prior to shipment; the
account debtor is not a subsidiary or affiliated company of Borrower; and
Borrower has no reason to believe the account will not be paid in the regular
course of business.
SECTION IV. CUSTODY AND INSPECTION OF RECORDS; HANDLING OF COLLECTIONS
A. All ledger sheets or cards, invoices, shipping records,
correspondence, and other writings relating to accounts shall, until delivered
to Lender or removed by Lender from Borrower's premises, be kept on Borrower's
premises without cost to Lender in appropriate containers in safe places.
B. Until Borrower's authority to do so is terminated by written notice
from Lender (which notice Lender may give at any time), Borrower will at its
expense and on Lender's behalf collect as Lender's property and in trust for
Lender all amounts unpaid on accounts, and shall not mingle such collections
with Borrower's own funds. Borrower shall remit all collections to Lender in
kind, duly endorsed, on the same day if practical, otherwise on the following
business day; and Lender shall credit the same to Borrower's account (subject to
final collection thereof) after allowing three days for collection of such
deposits. This provision is subject to Lender's rights under paragraphs 4 and 5
of the Security Agreement of even date herewith.
C. If Lender takes over the handling of collections after an event of
default or after demand for payment is made, Lender may remove from Borrower's
premises all books and records, correspondence, documents and files relating to
accounts; and Lender may without cost or expense to Lender use such of
Borrower's personnel, supplies, space and equipment at Borrower's place of
business as Lender may desire for the handling of collections. Borrower will pay
any and all reasonable internal, office and out of pocket expenses and costs of
collection (including reasonable attorneys fees) incurred by Lender in its
handling of or effort to enforce collections.
SECTION V. REPORTS
Borrower will furnish to Lender: (a) monthly, in such detail as Lender
may request, written reports, certified as correct by one of Borrower's
officers, showing all sales of merchandise, returns and allowances, collections,
and all miscellaneous charges and credits affecting the collateral; (b) monthly,
similarly certified financial and operating statements; (c) annually, at
Borrower's expense, a complete certified audit report of its operations and
condition made by an independent certified public accountant satisfactory to
Lender; and (d) upon issuance, copies of all public accountants' reports
rendered to Borrower while Borrower is indebted to Lender; (e) within five days
after the due date, proof of payment or deposit, when due, of all withholding
and F.I.C.A. taxes owing by Borrower from time to time; and (f) such other
financial or other information regarding Borrower or any guarantor as Lender may
request.
SECTION VI. WARRANTIES, REPRESENTATIONS AND COVENANTS
Borrower warrants, represents and covenants with Lender that Borrower
shall not: permit any levy, attachment or restraint to be made affecting any of
Borrower's assets; or permit any receiver, trustee or assignee for the benefit
of creditors to be appointed to take possession of any or all of Borrower's
assets. Except with Lender's prior written consent, Borrower shall not: (a)
other than in the ordinary course of its business, sell, lease or otherwise
dispose of or transfer any of its assets; (b) merge or consolidate with any
other corporation; (c) acquire any other corporation; (d) enter into any
transaction not in the usual course of its business; (e) make any investment in
the securities of any person, association, firm, entity or corporation other
than securities of the United States of America; (f) guarantee or otherwise
become in any way liable with respect to the obligations of any person,
association, firm, entity or corporation except by endorsement of instruments or
items of a payment for deposit to Borrower's general account or which are
transmitted or turned over to Lender on account of Borrower's obligations; (g)
pay or declare any dividends upon its capital stock; (h) redeem, retire,
purchase or otherwise acquire directly or indirectly any of its capital stock;
(i) make any change in
Borrower's capital structure or in any of its business objectives, purposes and
operations which might in any way adversely affect its ability to repay its
obligation; (j) make any distribution of its property or assets; (k) incur any
debts for borrowed money; (l) incur any debts other than trade payables which
must be incurred and paid in the ordinary course of Borrower's business; or (m)
make any loan, advance, contribution or payment of money or goods to any
subsidiary, affiliated or parent corporation or to any officer, director or
stockholder thereof (except compensation for personal services rendered). In
addition, Borrower further agrees that it will not encumber, pledge, assign or
permit to be created a lien or security interest in any of Borrower's property
except for the liens in favor of the following persons on the following
property: ____________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________.
Borrower hereby represents that none of the accounts shall at any time be
subject to a bond or other surety unless Borrower has notified Lender in writing
in advance of obtaining the bond. All covenants, representations and warranties
set forth in this agreement and in any other agreements executed by Borrower in
connection herewith and all terms, conditions, provisions and agreements to be
performed by Borrower pursuant to this agreement and such other agreements shall
be true and satisfied at the time of Borrower's execution and shall survive the
closing thereof and the execution and delivery of such agreements.
SECTION VII. MISCELLANEOUS
A. Borrower agrees that Lender may from time to time, for its
convenience, segregate or apportion the collateral for purposes of determining
the amounts and maximum amounts of loans and advances which may be made
hereunder. Nevertheless, Lender's security interest in all such collateral, and
any other collateral rights, interest and properties which may now or hereafter
be available to Lender, shall secure and may be applied to the payment of any
and all loans, advances and other indebtedness secured by Lender's security
interest, in any order or manner of application and without regard to the method
by which Lender determines to make loans hereunder.
B. Borrower hereby irrevocably makes, constitutes and appoints Lender,
or any person whom Lender may designate, Borrower's true and lawful attorney
with power to receive, open and dispose of all mail addressed to Borrower; to
endorse the name of Borrower's company upon any notes, acceptances, checks,
drafts, money orders or other means of payment that may come into Lender's
possession as payment of or upon accounts or other collateral; to endorse the
name of Borrower's company on any invoice, freight or express xxxx or xxxx of
lading relating to any collateral; to sign Borrower's name to drafts against
debtors, to assignments and verification of accounts and notices thereof to
debtors; and to do all other things necessary or proper to carry out the intent
of this agreement.
C. At Lender's request, Borrower will deliver customers' monthly
statements to Lender for examination and for mailing in Borrower's stamped
addressed envelope. From time to time, Lender or its representatives may verify
directly with customers the amounts owing, or at Lender's request, Borrower or
its independent accountants will do so and deliver the results to Lender in any
manner satisfactory to Lender.
D. Borrower agrees that any bank participating with Lender in loans to
Borrower hereunder may exercise any and all rights of banker's lien or set-off
with respect to such participation as fully as if such participant had lent
directly to Borrower the amount of such participation.
E. Borrower agrees to reimburse Lender for all attorney fees, filing
fees, and other out-of-pocket expenses Lender may incur in connection with the
negotiation and/or the interpretation of this agreement or any related
agreements, the preparation of documents relating thereto, perfecting any
security interest or lien granted thereby, or enforcing any of its obligations
to Lender arising under this or any other agreement between Lender and Borrower,
regardless of whether litigation is commenced. In addition, Borrower will
reimburse Lender for any out-of-pocket expenses incurred by Lender in managing
Borrower's account, including any costs for wire transfers and the costs of
checks returned for insufficient funds. If Lender elects, Lender may treat the
amount of any such expense as a loan to Borrower and add the amount to
Borrower's loan account with Lender.
F. This agreement shall bind and inure to the benefit of Lender and
Borrower and the parties' respective successors and assigns. This agreement, and
all assignments of collateral shall be construed pursuant to the laws of the
State of Minnesota. Borrower hereby consents to the jurisdiction of the state
and federal courts located in Hennepin County, Minnesota and agrees that any
dispute arising out of this agreement or any agreement delivered in connection
herewith shall be venued in Hennepin County, Minnesota. Borrower hereby further
waives any right to a jury trial and agrees that all disputes arising hereunder
shall be tried by the court sitting without a jury.
SECTION VIII. TERMINATION
Borrower understands that this Financing Agreement represents a
discretionary line of credit and that Lender may refuse to make an advance
hereunder at its discretion. In addition, Borrower understands that Lender may
at its election make a demand for amounts due hereunder at any time even though
the provisions herein are satisfied. Borrower agrees to provide Lender with 30
days' prior written notice of Borrower's election to terminate this agreement
and that any termination by Borrower shall be subject to the provisions hereof.
Termination by Borrower shall not impair or affect Lender's rights and
Borrower's obligations then existing.
ITASCA BUSINESS CREDIT, INC. XATA CORPORATION
Lender Borrower
By /s/ Xxxx Xxxxxx By /s/ Xxxx X. Xxxxx
---------------------------- -----------------------------
Name: Xxxx Xxxxxx Name: Xxxx Xxxxx
Title: Vice President Title: Chief Financial Officer
REVOLVING NOTE
$2,000,000.00 St. Louis Park, Minnesota
DECEMBER 23, 2002
For value received, the undersigned, XATA Corporation, a Minnesota
corporation (the "Borrower"), hereby promises to pay, on demand, or if demand is
not sooner made, on DECEMBER 23, 2003 ("Final Due Date"), to the order of Itasca
Business Credit, Inc., a Minnesota corporation (the "Secured Party"), at its
main office in St. Louis Park, Minnesota, or at any other place designated at
any time by the holder hereof, in lawful money of the United States of America,
the principal sum of Two Million Dollars ($2,000,000.00) or, the aggregate
unpaid principal amount of all advances made by the Secured Party to the
Borrower hereunder, together with interest on the principal amount hereunder
remaining unpaid from time to time (the "Principal Balance") computed on the
basis of the actual number of days elapsed and a 360-day year, from the date
hereof until this Note is fully paid at the rate from time to time in effect
under the Financing Agreement dated DECEMBER 23, 2002, (the "Financing
Agreement") by and between the Secured Party and the Borrower. The Secured Party
can extend the Final Due Date, at its election, and can provide that the Final
Due Date shall be automatically extended for successive 30 day periods until a
demand for repayment is made by the Secured Party.
Interest accruing on the Principal Balance hereof shall also be payable
on demand.
This Note may be prepaid in whole at any time or from time to time in
part in accordance with the terms and provisions of the Financing Agreement,
provided that any prepayment in whole of this Note shall include accrued
interest thereon. This Note is issued pursuant to, and is subject to, the
Financing Agreement, which provides for, among other things, acceleration
hereof. This Note is the Note referred to in the Financing Agreement.
This Note is secured, among other things, pursuant to the terms of the
Security Agreement dated DECEMBER 23, 2002, and may now or hereafter be secured
by one or more other security agreements, mortgages, deeds of trust, assignments
or other instruments or agreements.
The Borrower hereby agrees to pay all costs of collection, including
reasonable attorneys' fees and legal expenses in accordance with the terms of
the Financing Agreement, whether or not legal proceedings are commenced.
This Note shall be immediately due and payable (including unpaid
interest accrued hereon) without demand or notice thereof upon the filing of a
petition by or against the Borrower under the United States Bankruptcy Code.
Presentment or other demand for payment, notice of dishonor and protest
are expressly waived except as expressly provided in the Financing Agreement.
XATA CORPORATION
Borrower
By: /s/ Xxxx X. Xxxxx
-----------------------
Name: Xxxx Xxxxx
Its: Chief Financial Officer
