BUSINESS LOAN AGREEMENT
Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$2,000,000.00 03-19-1999 03-31-2000 187699 001 0159246284 00582
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Borrower: MADE2MANAGE SYSTEMS, INC. Lender: Bank One, Indiana, NA
0000 XXXXXX XXXX 000 Xxxxxxxx Xxxxxx
XXXXXXXXXXXX, XX 00000 Xxxxxxxxxxxx, XX 00000
THIS BUSINESS LOAN AGREEMENT between MADE2MANAGE SYSTEMS, INC. ("Borrower") and
Bank One, Indiana, NA ("Lender") is made and executed as of March 19, 1999. This
Agreement governs all loans, credit facilities and/or other financial
accommodations described herein and, unless otherwise agreed to in writing by
Xxxxxx and Borrower, all other present and future loans, credit facilities and
other financial accommodations provided by Lender to Borrower. All such loans,
credit facilities and other financial accommodations, together with all
renewals, amendments and modifications thereof, are referred to in this
Agreement individually as the "Loan" and collectively as the "Loans." Xxxxxxxx
understands and agrees that: (a) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements,
as set forth in this Agreement; and (b) all such Loans shall be and shall remain
subject to the following terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of March 19, 1999, and shall continue
thereafter until all Loans and other obligations owing by Xxxxxxxx to Lender
hereunder have been paid in full and Lender has no commitments or obligations to
make further advances under the Loans to Borrower.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code as adopted in
the State of Indiana. All references to dollar amounts shall mean amounts in
lawful money of the United States of America.
Agreement. The word "Agreement" means this Business Loan Agreement, as may be
amended or, modified from time to time, together with all exhibits and schedules
attached hereto from time to time.
Borrower. The word "Borrower" means MADE2MANAGE SYSTEMS, INC.
Collateral. The word "Collateral" means and includes without limitation all
property and assets granted as collateral for any Loan, whether real or personal
property, whether granted directly or indirectly, whether granted now or in the
future, and whether granted in the form of a security interest, mortgage, deed
of trust, assignment, pledge, chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or title
retention contract, lease or consignment intended as a security device, or any
other security or lien interest whatsoever, whether created by law, contract, or
otherwise.
ERISA. The word "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
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Grantor. The word "Grantor" means and includes each and all of the persons or
entities granting a Security Interest in any Collateral for any of the Loans.
Guarantor. The word "Guarantor" means and includes each and all of the
guarantors, sureties, and accommodation parties for any of the Loans.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the
Note, including all principal and accrued interest thereon, together with all
other liabilities, costs and expenses for which Borrower is responsible under
this Agreement or under any of the Related Documents. In addition, the word
"Indebtedness" includes all other obligations, debts and liabilities, plus any
accrued interest thereon, owing by Borrower, or any one or more of them, to
Lender of any kind or character, now existing or hereafter arising, as well as
all present and future claims by Lender against Borrower, or any one or more of
them, and all renewals, extensions, modifications, substitutions and
rearrangements of any of the foregoing; whether such indebtedness arises by
note, draft, acceptance, guaranty, endorsement, letter of credit, assignment,
overdraft, indemnity agreement or otherwise; whether such indebtedness is
voluntary or involuntary, due or not due, direct or indirect, absolute or
contingent, liquidated or unliquidated; whether Borrower may be liable
individually or jointly with others; whether Borrower may be liable primarily or
secondarily or as debtor, maker, comaker, drawer, endorser, guarantor, surety,
accommodation party or otherwise.
Lender. The word "Lender" means Bank One, Indiana, NA, its successors and
assigns.
Note. The word "Note" means any and all promissory note or notes which evidence
Xxxxxxxx's Loans in favor of Xxxxxx, as well as any amendment, modification,
renewal or replacement thereof.
Permitted Liens. The words "Permitted Liens" mean: (a) liens and security
interests securing indebtedness owed by Borrower to Lender; (b) liens for taxes,
assessments, or similar charges either (i) not yet due, or (ii) being contested
in good faith by appropriate proceedings for and which Borrower has established
adequate reserves; (c) purchase money liens or purchase money security interests
upon or in any property acquired or held by Borrower in the ordinary course of
business to secure any indebtedness permitted under this Agreement; and (d)
liens and security interests which, as of the date of this Agreement, have been
disclosed to and approved by the Lender in writing.
Related Documents. The words "Related Documents" mean and include without
limitation the Note and all credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, and all
other instruments, agreements and documents, whether now or hereafter existing,
executed in connection with the Note.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements, understandings or
other agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security Interest.
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Security Interest. The words "Security Interest" mean and include without
limitation any type of security interest, whether in the form of a lien, charge,
mortgage, deed of trust, assignment, pledge chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien or title
retention contract, lease or consignment intended as a security device, or any
other security or lion interest whatsoever, whether created by law, contract, or
otherwise.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each request for an advance or
disbursement of Loan proceeds, as of the date of any renewal, extension or
modification of any Loan, and at all times any indebtedness exists hereafter:
Organization. Borrower is a corporation which is duly organized, validly
existing, and in good standing under the laws of the State of Indiana and is
duly qualified and in good standing in all other states in which Borrower is
doing business. Borrower has the full power and authority to own its properties
and to transact the businesses in which it is presently engaged or presently
proposes to engage.
Authorization. The execution, delivery, and performance of this Agreement and
all Related Documents to which Borrower is a party have been duly authorized by
all necessary action; do not require the consent or approval of any other
person, regulatory authority or governmental body; and do not conflict with,
result in a violation of, or constitute a default under (a) any provision of its
articles of incorporation or organization, or bylaws, or any agreement or other
instrument binding upon Borrower or (b) any law, governmental regulation, court
decree, or order applicable to Borrower. Borrower has all requisite power and
authority to execute and deliver this Agreement and all other Related Documents
to which Borrower is a party.
Financial Information. Each financial statement of Xxxxxxxx supplied to Lender
truly and completely discloses Borrower's financial condition as of the date of
the statement, and there has been no material adverse change in Borrower's
financial condition subsequent to the date of the most recent financial
statement supplied to Lender. Borrower has no material contingent obligations
except as disclosed in such financial statements.
Legal Effect. This Agreement and all other Related Documents to which Borrower
is a party constitute legal, valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective terms, except
as limited by bankruptcy, insolvency or similar laws of general application
relating to the enforcement of creditors' rights and except to the extent
specific remedies may generally be limited by equitable principles.
Properties. Except as contemplated by this Agreement or as previously disclosed
in Xxxxxxxx's financial statements or in writing to Lender and as accepted by
Xxxxxx, and except for property tax liens for taxes not presently due and
payable, Borrower is the sole owner of, and has good title to, all of Borrower's
properties free and clear of all Security Interests, and has not executed any
security documents or financing statements relating to such properties. All of
Xxxxxxxx's properties are titled in Borrower's legal name, and Xxxxxxxx has not
used, or filed a financing statement under, any other name for at least the last
six (6) years.
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Compliance. Except as disclosed in writing to Lender (a) Borrower is conducting
Borrower's businesses in material compliance with all applicable federal, state
and local laws, statutes, ordinances, rules, regulations, orders, determinations
and court decisions, including without limitation, those pertaining to health or
environmental matters, and (b) Borrower otherwise does not have any known
material contingent liability in connection with the release into the
environment, disposal or the improper storage of any toxic or hazardous
substance or solid waste.
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Borrower
is pending or threatened, and no other event has occurred which may in any one
case or in the aggregate materially adversely affect Borrower's financial
condition or properties, other than litigation, claims, or other events, if any,
that have been disclosed to and acknowledged by Xxxxxx in writing.
Taxes. All tax returns and reports of Borrower that are or were required to be
filed, have been filed, and all taxes, assessments and other governmental
charges have been paid in full, except those that have been disclosed in writing
to Lender which are presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have been
provided.
Lien Priority. Unless otherwise previously disclosed to and approved by Xxxxxx
in writing, Xxxxxxxx has not entered into any Security Agreements, granted a
Security Interest or permitted the filing or attachment of any Security
interests on or affecting any of the Collateral, except in favor of Lender.
Licenses, Trademarks and Patents. Borrower possesses and will continue to
possess all permits, licenses, trademarks, patents and rights thereto which are
needed to conduct Borrower's business and Xxxxxxxx's business does not conflict
with or violate any valid rights of others with respect to the foregoing.
Commercial Purposes. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes approved by Lender and such proceeds
will not be used for the purchasing or carrying of "margin stock" as defined in
Regulation U issued by the Board of Governors of the Federal Reserve System.
Ineligible Securities. No portion or any advance or Loan made hereunder shall be
used directly or indirectly to purchase ineligible securities, as defined by
applicable regulations of the Federal Reserve Board, underwritten by Lender or
any other affiliate of Banc One Corporation during the underwriting period and
for 30 days thereafter.
Employee Benefit Plans. Each employee benefit plan as to which Borrower may have
any liability complies in all material respects with all applicable requirements
of law and regulations, and (i) no Reportable Event nor Prohibited Transaction
(as defined in ERISA) has occurred with respect to any such plan, (ii) Borrower
has not withdrawn from any such plan or initiated steps to do so, (iii) no steps
have been taken to terminate any such plan, and (iv) there are no unfunded
liabilities other than those previously disclosed to Lender in writing.
Location of Xxxxxxxx's Offices and Records. Xxxxxxxx's place of business, or
Xxxxxxxx's chief executive office if Xxxxxxxx has more than one place of
business, is located at 0000 XXXXXX XXXX, XXXXXXXXXXXX, XX 00000.
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Unless Borrower has designated otherwise in writing this location is also the
office or offices where Borrower keeps its records concerning the Collateral.
Information. All information heretofore or contemporaneously herewith furnished
by Borrower to Lender for the purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all information hereafter
furnished by or on behalf of Borrower to Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified; and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not misleading.
Survival of Representations and Warranties. Xxxxxxxx understands and agrees that
Xxxxxx, without independent investigation, is relying upon the above
representations and warranties in extending Loan advances to Borrower. Xxxxxxxx
further agrees that the foregoing representations and warranties shall be
continuing in nature and shall remain in full force and effect during the term
of this Agreement.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that, while
this Agreement is in effect, Borrower will:
Litigation. Promptly inform Xxxxxx in writing of (a) all material adverse
changes in Borrower's financial condition, (b) all existing and all threatened
litigation, claims, investigations, administrative proceedings or similar
actions affecting Borrower or any Guarantor which could materially affect the
financial condition of Borrower or the financial condition of any Guarantor, and
(c) the creation, occurrence or assumption by Borrower of any actual or
contingent liabilities not permitted under this Agreement.
Financial Records. Maintain its books and records in accordance with generally
accepted accounting principles, applied on a consistent basis, and permit Lender
to examine, audit and make and take away copies or reproductions of Borrower's
books and records at all reasonable times. If Borrower now or at any time
hereafter maintains any records (including without limitation computer generated
records and computer software programs for the generation of such records) in
the possession of a third party, Borrower, upon request of Xxxxxx, shall notify
such party to permit Lender free access to such records at all reasonable times
and to provide Lender with copies of any records it may request, all at
Borrower's expense.
Financial Statements. Furnish Lender with, as soon as available, but in no event
later than ninety (90) days after the end of each fiscal year, Xxxxxxxx's
balance sheet, income statement, and statement of changes in financial position
for the year ended, audited by a certified public accountant satisfactory to
Lender, together with the management letter, if any, prepared by such
accountants promptly upon receipt, and, as soon as available, but in no event
later than forty five (45) days after the end of each fiscal quarter, Xxxxxxxx's
balance sheet, income statement, and statement of changes in financial position
for the period ended, prepared and certified, subject to year-end review
adjustments, as correct to the best knowledge and belief by Xxxxxxxx's chief
financial officer or other officer or person acceptable to Lender. All financial
reports required to be provided under this Agreement shall be prepared in
accordance with generally accepted accounting principles, applied on a
consistent basis, and certified by Borrower as being true and correct.
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Additional Information. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables, inventory
schedules, budgets, forecasts, tax returns, and other reports with respect to
Xxxxxxxx's financial condition and business operations as Lender may request
from time to time.
Insurance. Maintain fire and other risk insurance, public liability insurance,
business interruption insurance and such other insurance as Lender may require
with respect to Borrower's properties and operations, in form, amounts,
coverages and with insurance companies reasonably acceptable to Lender.
Borrower, upon request of Xxxxxx, will deliver to Lender from time to time the
policies or certificates of insurance in form satisfactory to Lender, including
stipulations that coverages will not be cancelled or diminished without at least
thirty (30) days' prior written notice to Lender. In connection with all
policies covering assets in which Lender holds or is offered a Security Interest
for the Loans, Borrower will provide Lender with such lender loss payable or
other endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each
existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (a) the name of the
Insurer; (b) the risks insured; (c) the amount of the policy; (d) the properties
insured; (e) the then current property values on the basis of which insurance
has been obtained, and the manner of determining those values; and (f) the
expiration date of the policy.
Other Agreements. Comply with all terms and conditions of all other agreements,
whether now or hereafter existing, between Borrower and any other party and
notify Lender immediately in writing of any default in connection with any other
such agreements.
Loan Fees and Charges. In addition to all other agreed upon fees and charges,
pay the following: Facility Fee $2500.00.
Loan Proceeds. Use all Loan proceeds solely for Xxxxxxxx's business operations,
unless specifically consented to the contrary by Xxxxxx in writing.
Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes, governmental
charges, levies and liens, of every kind and nature, imposed upon Borrower or
its properties, income, or profits, prior to the date on which penalties would
attach, and all lawful claims that, if unpaid, might become a lien or charge
upon any of Borrower's properties, income, or profits; provided however,
Borrower will not be required to pay and discharge any such assessment, tax,
charge, xxxx, xxxx or claim so long as (a) the legality of the same shall be
contested in good faith by appropriate proceedings, and (b) Borrower shall have
established on its books adequate reserves with respect to such contested
assessment, tax, charge, levy, lien, or claim in accordance with generally
accepted accounting principles. Xxxxxxxx, upon demand of Lender, will furnish to
Lender evidence of payment of the assessments, taxes, charges, levies, liens and
claims and will authorize the appropriate governmental official to deliver to
Lender at any time a written statement of any assessments, taxes, charges,
levies, liens and claims against Xxxxxxxx's properties, income, or profits.
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Performance. Perform and comply with all terms, conditions, and provisions set
forth in this Agreement and in the Related Documents in a timely manner, and
promptly notify Xxxxxx if Xxxxxxxx learns of the occurrence of any event which
constitutes an Event of Default under this Agreement or under any of the Related
Documents.
Operations. Conduct its business affairs in a reasonable and prudent manner and
in compliance with all applicable federal, state and municipal laws, ordinances,
rules and regulations respecting its properties, charters, businesses and
operations, including without limitation, compliance with the Americans With
Disabilities Act, all applicable environmental statutes, rules, regulations and
ordinances and with all minimum funding standards and other requirements of
ERISA and other laws applicable to Borrower's employee benefit plans.
Environmental Compliance and Reports. Borrower shall comply in all respects with
all federal, state and local environmental laws, statutes, regulations and
ordinances; not cause or permit to exist, as a result of an intentional or
unintentional action or omission on its part or on the part of any third party,
on property owned and/or occupied by Borrower, any environmental activity where
damage may result to the environment, unless such environmental activity is
pursuant to and in compliance with the conditions of a permit issued by the
appropriate federal, state or local governmental authorities; and furnish to
Lender promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other
communication from any governmental agency or instrumentality concerning any
intentional or unintentional action or omission on Borrower's part in connection
with any environmental activity whether or not there is damage to the
environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, financing statements,
instruments, documents and other agreements as Lender or its attorneys may
reasonably request to evidence and secure the Loans and to perfect all Security
Interests.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Maintain Basic Business. Engage in any business activities substantially
different than those in which Borrower is presently engaged.
Continuity of Operations. Cease operations, liquidate, dissolve or merge or
consolidate with or into any other entity.
Indebtedness. Create, incur or assume additional indebtedness for borrowed
money, including capital leases, or guarantee any indebtedness owing by others,
other than (a) current unsecured trade debt incurred in the ordinary course of
business, (b) indebtedness owing to Lender, (c) borrowings outstanding as of the
date hereof and disclosed to Lender in writing, and (d) any borrowings otherwise
approved by Xxxxxx in writing.
Liens. Mortgage, assign, pledge, grant a security interest in or otherwise
encumber Borrower's assets, except as allowed as a Permitted Lion.
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Transfer of Assets. Transfer, sell or otherwise dispose of any of Borrower's
assets other than in the ordinary course of business.
Change In Management. Permit a change in the senior executive or management
personnel of Xxxxxxxx.
Transfer of Ownership. Permit the sale, pledge or other transfer of any
ownership interest in Borrower.
Investments. Invest in, or purchase, create, form or acquire any interest in,
any other enterprise or entity.
CONDITIONS PRECEDENT TO ADVANCES. If Lender is obligated to make any Loan
advances or to otherwise disburse any Loan proceeds to Borrower, such obligation
shall be subject to the conditions precedent that as of the date of such advance
or disbursement and after giving effect thereto (a) all representations and
warranties made to Lender in this Agreement and the Related Documents shall be
true and correct as of and as if made on such date, (b) no material adverse
change in the financial condition of Borrower or any Guarantor since the
effective date of the most recent financial statements furnished to Lender, or
in the value of any Collateral, shall have occurred and be continuing, (c) no
event has occurred and is continuing, or would result from the requested advance
or disbursement, which with notice or lapse of time, or both, would constitute
an Event of Default, (d), no Guarantor has sought, claimed or otherwise
attempted to limit, modify or revoke such Guarantor's guaranty of any Loan, and
(e) Xxxxxx has received all Related Documents appropriately executed by Xxxxxxxx
and all other proper parties.
ADDITIONAL AFFIRMATIVE COVENANT - MAXIMUM FUNDED DEBT TO EBITDA. Borrower
further covenants and agrees with Bank that, while this agreement is in effect,
Xxxxxxxx will comply at all times with the following ratio: Maintain as of the
end of each fiscal quarter, a ratio of (a) funded debt, for the twelve month
period then ending, to (b) net income before taxes, plus depreciation,
amortization and interest, for the same twelve month period, of not more than
1.00 to 1.00. "Funded Debt" means (a) all obligations of Borrower (including,
without limitation, all fees, costs or unpaid accrued interest) for or with
respect to borrowed money or for the deferred purchase price of property or
services, except current accounts payable arising in the ordinary course of
business; (b) all obligations of Borrower treated or arising under any
conditional sale or other title retention agreement with respect to any property
acquired by Borrower and all obligations created or arising under such agreement
even though the rights and remedies of the seller or bank thereunder are limited
to repossession of sale of such property in the event of default; (c) all
obligations of Borrower under leases which shall have been or should be recorded
as capitalized leases in accordance with generally accepted accounting
principles; (d) all guarantees and other obligations (contingent or otherwise)
of Borrower to assure a creditor against loss (including, without limitation,
letters of responsibility or comfort letters, arrangements to purchase or
repurchase property or obligations to pay for property, goods or services,
whether or not delivered or rendered to maintain working capital equity capital
or other financial statement condition of, or to tend or contribute or invest
in, any other entity); (e) an endorsements of Borrower (other than in the case
of instruments for deposit or collection in the ordinary course of business);
(f) all obligations of Borrower for extensions of credit including the face
amount of letters of credit to or on behalf of Xxxxxxxx, whether or not
representing obligation for borrowed money; and (g) all obligations or
Indebtedness described in clauses (a) through (f) secured by a lien on any
property owned by Borrower whether or not Borrower has assumed or become liable
for the payment thereof. The phrase "EBITDA" means the sum of net income before
taxes, plus interest expense, depreciation, and amortization.
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ADDITIONAL AFFIRMATIVE COVENANT - DEBT TO TANGIBLE NET WORTH RATIO. Borrower
further covenants and agrees with Xxxxxx that, while this Agreement is in
effect, Borrower will comply at all times with the following ratio: Maintain as
of the end of each fiscal quarter; a ratio of (a) total liabilities, to (b)
Tangible Net Worth of less than 1.2 to 1.00. For purposes of this Agreement and
to the extent the following terms are utilized in this Agreement: The term
"Tangible Net Worth" shall mean borrower's total assets excluding all intangible
assets (including, without limitation, goodwill, trademarks, patents,
copyrights, organization expenses, and similar intangible items) less total
liabilities excluding Subordinated Debt. The term "Subordinated Debt" shall mean
all indebtedness owing by Borrower which has been subordinated by written
agreement to all Indebtedness now or hereafter owing by Borrower to Lender, such
agreement to be in form and substance acceptable to Lender. The term "Working
Capital" shall mean Borrower's liquid Assets plus inventory, less current
liabilities. The term "Liquid Assets", shall mean borrower's unencumbered cash,
marketable securities and accounts receivable net of reserves. The term
"Adjusted Net Income" means earnings before interest, taxes, depreciation and
amortization, plus lease expense, and depletion, less any distributions. The
term "Distributions", shall mean all dividends and other distributions made by
borrower to its shareholders, partners, owners or members, as the case may be,
other than salary, bonuses and other compensation for services expanded in the
current accounting period. The term "Fixed Charges" mean interest expense plus
lease expense, current maturities of long-term debt and current maturities of
capital leases. The term "Cash Flow" shall mean net income after taxes, and
exclusive of extraordinary items, plus depreciation and amortization. Except as
provided above, all computations made to determine compliance with the
requirements contained in this paragraph shall be made in accordance with
generally accepted accounting principles, applied on a consistent basis, and
certified by Borrower as being true and correct.
RIGHT OF SETOFF. Unless a lien would be prohibited by law or would render a
nontaxable account taxable, Borrower grants to Lender a contractual security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Xxxxxxxx's accounts
with Lender (whether checking, savings, or any other account), including without
limitation all accounts held jointly with someone else and all accounts Borrower
may open in the future. Xxxxxxxx authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on the Indebtedness against
any and all such accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
Default on Indebtedness. Failure of Borrower to make any payment when due on any
of the Indebtedness.
Other Defaults. Failure of Borrower, any Guarantor or any Grantor to comply with
or to perform when due any other term, obligation, covenant or condition
contained in this Agreement, the Note or in any of the other Related Documents,
or failure of Borrower to comply with or to perform any other term, obligation,
covenant or condition contained in any other agreement now existing or hereafter
arising between Lender and Borrower.
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False Statements. Any warranty, representation or statement made or furnished to
Lender under this Agreement or the Related Documents is false or misleading in
any material respect.
Default to Third Party. The occurrence of any event which permits the
acceleration of the maturity of any indebtedness owing by Xxxxxxxx, Grantor or
any Guarantor to any third party under any agreement or undertaking.
Bankruptcy or Insolvency. If the Borrower, Grantor or any Guarantor: (i) becomes
insolvent, or makes a transfer in fraud of creditors, or makes an assignment for
the benefit of creditors, or admits in writing its inability to pay its debts as
they become due; (ii) generally is not paying its debts as such debts become
due, (iii) has a receiver, trustee or custodian appointed for, or take
possession of, all or substantially all of the assets of such party or any of
the Collateral, either in a proceeding brought by such party or in a proceeding
brought against such party and such appointment is not discharged or such
possession is not terminated within sixty (60) days after the effective date
thereof or such party consents to or acquiesces in such appointment or
possession; (iv) files a petition for relief under the United States Bankruptcy
Code or any other present or future federal or state insolvency, bankruptcy or
similar laws (all of the foregoing hereinafter collectively called "Applicable
Bankruptcy Law") or an involuntary petition for relief is filed against such
party under any Applicable Bankruptcy Law and such involuntary petition is not
dismissed within sixty (60) days after the filing thereof, or an order for
relief naming such party is entered under any Applicable Bankruptcy Law, or any
composition, rearrangement, extension, reorganization or other relief of debtors
now or hereafter existing is requested or consented to by such party; (v) fails
to have discharged within a period of sixty (60) days any attachment,
sequestration or similar writ levied upon any property of such party; or (vi)
fails to pay within thirty (30) days any final money judgment against such
party.
Liquidation, Death and Related Events. If Borrower, Grantor or any Guarantor is
an entity, the liquidation, dissolution, merger or consolidation of any such
entity or, if any of such parties is an individual, the death or legal
incapacity of any such individual.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower, any creditor of any Grantor against
any collateral securing the Indebtedness, or by any governmental agency.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, Lender may,
at its option, without further notice or demand, (a) terminate all commitments
and obligations of Lender to make Loans to Borrower, if any, (b) declare all
Loans and any other Indebtedness immediately due and payable, (c) refuse to
advance any additional amounts under the Note, or (d) exercise all the rights
and remedies provided in the Note or in any of the Related Documents or
available at law, in equity, or otherwise; provided, however, if any Event of
Default of the type described in the "Bankruptcy or Insolvency" subsection above
shall occur, all Loans and any other Indebtedness shall automatically become due
and payable, without any notice, demand or action by Lender. Except as may be
prohibited by applicable law, all of Lender's rights and remedies shall be
cumulative and may be exercised singularly or concurrently. Election by Xxxxxx
to pursue any remedies shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Borrower or any Grantor shall not affect Xxxxxx's right to declare a default and
to exercise its rights and remedies.
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MISCELLANEOUS PROVISIONS.
Amendments. This Agreement, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in
this Agreement. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Applicable Law. This Agreement has been delivered to Lender and accepted by
Lender in the State of Indiana. Subject to the provisions on arbitration, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Indiana without regard to any conflict of laws or provisions thereof.
JURY WAIVER. THE UNDERSIGNED AND LENDER (BY ITS ACCEPTANCE HEREOF) HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT
OR OTHERWISE) BETWEEN OR AMONG THE UNDERSIGNED AND LENDER ARISING OUT OF OR IN
ANY WAY RELATED TO THIS DOCUMENT, AND ANY OTHER RELATED DOCUMENT, OR ANY
RELATIONSHIP BETWEEN XXXXXX AND THE BORROWER. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER
RELATED DOCUMENTS.
ARBITRATION. Xxxxxx and Xxxxxxxx agree that upon the written demand of either
party, whether made before or after the institution of any legal proceedings,
but prior to the rendering of any judgment in that proceeding, all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, arising from this Agreement, any Related Document or otherwise,
including without limitation contract disputes and tort claims, shall be
resolved by binding arbitration pursuant to the Commercial Rules of the American
Arbitration Association ("AAA"). Any arbitration proceeding held pursuant to
this arbitration provision shall be conducted in the city nearest the Borrower's
address having an AAA regional office, or at any other place selected by mutual
agreement of the parties. No act to take or dispose of any Collateral shall
constitute a waiver of this arbitration agreement or be prohibited by this
arbitration agreement. This arbitration provision shall not limit the right of
either party during any dispute, claim or controversy to seek, use, and employ
ancillary, or preliminary rights and/or remedies, judicial or otherwise, for the
purposes of realizing upon, preserving, protecting, foreclosing upon or
proceeding under forcible entry and detainer for possession of, any real or
personal property, and any such action shall not be deemed an election of
remedies. Such remedies include, without limitation, obtaining injunctive relief
or a temporary restraining order, invoking a power of sale under any deed of
trust or mortgage, obtaining a writ of attachment or imposition of a
receivership, or exercising any rights relating to personal property, including
exercising the right of set-off, or taking or disposing of such property with or
without judicial process pursuant to the Uniform Commercial Code. Any disputes,
claims, or controversies concerning the lawfulness or reasonableness of an act,
or exercise of any right or remedy, concerning any Collateral, including any
claim to rescind, reform, or otherwise modify any agreement relating to the
Collateral, shall also be arbitrated; provided, however that no arbitrator shall
have the right or the power to enjoin or restrain any act of either party.
Judgment upon any award rendered by any arbitrator may be entered in any court
having jurisdiction. The statute of limitations, estoppel, waiver, laches and
similar doctrines which would otherwise be applicable in an action brought by a
party shall be applicable in any arbitration proceeding, and the commencement of
an arbitration proceeding shall be deemed the commencement of any action for
these purposes. The Federal Arbitration Act (Title 9 of the United States Code)
shall apply to the construction, interpretation, and enforcement of this
arbitration provision.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement.
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Consent to Loan Participation. Xxxxxxxx agrees and consents to Xxxxxx's sale or
transfer, whether now or later, of one or more participation interests in the
Loans to one or more purchasers, whether related or unrelated to Lender. Lender
may provide, without any limitation whatsoever, to any one or more purchasers,
or potential purchasers, any Information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower hereby
waives any rights to privacy it may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation interests, as
well as all notices of any repurchase of such participation interests.
Costs and Expenses. Xxxxxxxx agrees to pay upon demand all of Xxxxxx's expenses,
including attorneys' fees, incurred in connection with the preparation,
execution, enforcement, modification and collection of this Agreement or in
connection with the Loans made pursuant to this Agreement. Xxxxxx may hire one
or more attorneys to help collect the Indebtedness if Xxxxxxxx does not pay, and
Borrower will pay Xxxxxx's reasonable attorneys' fees.
Notices. All notices required to be given under this Agreement shall be given in
writing, and shall be effective when actually delivered or when deposited with a
nationally recognized overnight courier or deposited in the United States mail,
first class, postage prepaid, addressed to the party to whom the notice is to be
given at the address shown above. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address. For
notice purposes, Borrower will keep Lender informed at all times of Xxxxxxxx's
current address(es).
Severabillity. If a court of competent jurisdiction finds any provision of this
Agreement to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending provision shall be
deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects shall remain
valid and enforceable.
Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which together shall constitute
the same document. Signature pages may be detached from the counterparts to a
single copy of this Agreement to physically form one document.
Successors and Assigns. All covenants and agreements contained by or on behalf
of Borrower shall bind its successors and assigns and shall inure to the benefit
of Lender, its successors and assigns. Borrower shall not, however, have the
right to assign its rights under this Agreement or any interest therein, without
the prior written consent of Lender.
Survival. All warranties, representations, and covenants made by Borrower in
this Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement shall be considered to have been relied upon by
Xxxxxx and will survive the making of the Loan and delivery to Lender of the
Related Documents, regardless of any investigation made by Xxxxxx or on Xxxxxx's
behalf.
Time Is of the Essence. Time is of the essence in the performance of this
Agreement.
Waiver. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Xxxxxx. No delay
or omission on the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by Xxxxxx of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Xxxxxx, nor any course of dealing between
Xxxxxx and Borrower, or between Lender and any Grantor or Guarantor, shall
constitute a waiver of any of Lender's rights or of any obligations of Borrower
or of any Grantor as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent in subsequent instances where
such consent is required, and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
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XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND XXXXXXXX AGREES TO ITS TERMS. THIS AGREEMENT IS EXECUTED AS OF
THE DATE SET FORTH ABOVE.
BORROWER:
MADE2MANAGE SYSTEMS, INC.
--------------------------------------------
Authorized Officer
LENDER:
Bank One, Indiana, NA
By:-----------------------------------------
Authorized Officer
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