CREDIT AND SECURITY AGREEMENT
Dated as of January 3, 1997
SERVICE BUSINESS SYSTEMS, INC., a Colorado corporation (the "Borrower")
and NORWEST BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender"),
hereby agree as follows:
ARTICLE I
Definitions
-----------
Section 1.1 Definitions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular; and
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles.
"Accounts" means the aggregate unpaid obligations of customers and
other account debtors to the Borrower arising out of the sale or lease of
goods or rendition of services by the Borrower on an open account or deferred
payment basis.
"Advance" means an advance to the Borrower by the Lender under the
Credit Facility.
"Affiliate" or "Affiliates" means any Person controlled by,
controlling or under common control with the Borrower, including (without
limitation) any Subsidiary of the Borrower. For purposes of this definition,
"control," when used with respect to any specified Person, means the power
along with any other Person under common control with such Person to vote 80%
or more of the voting stock of any Person.
"Agreement" means this Credit and Security Agreement.
"Banking Day" means a day other than a Saturday on which banks are
generally open for business in Minneapolis, Minnesota and Denver, Colorado.
"Base Rate" means the rate of interest publicly announced from time
to time by Norwest Bank Minnesota, National Association as its "base rate" or,
if such bank ceases to announce a rate so designated, any similar successor
rate designated by the Lender.
"Borrowing Base" means, at any time and subject to change from time
to time in the Lender's sole discretion, the lesser of (a) the Commitment, or
(b) 80% of Eligible Accounts.
"Collateral" means all of the Equipment, General Intangibles,
Inventory and Receivables, together with all substitutions and replacements
for and products of any of the foregoing Collateral and together with
proceeds of any and all of the foregoing Collateral and, in the case of all
tangible Collateral, together with (i) all accessions, accessories,
attachments, parts, equipment and repairs now or hereafter attached or
affixed to or used in connection with any such goods, and (ii) all warehouse
receipts, bills of lading and other documents of title now or hereafter
covering such goods.
"Collateral Account" has the meaning specified in Section 4.1(d)
hereof.
"Commitment" means $500,000.
"Credit Facility" means the credit facility being made available
to the Borrower by the Lender pursuant to Article II hereof.
"Default" means an event that, with giving of notice or passage of
time or both, would constitute an Event of Default.
"Default Rate" means at any time three percent (3%) over the
Floating Rate, which Default Rate shall change when and as the Floating Rate
changes.
"DNC" means Data National Corporation, a Colorado corporation.
"Eligible Accounts" means, unless otherwise agreed to in writing by
the Lender, all unpaid Accounts, net of any credits, except the following
shall not in any event be deemed Eligible Accounts:
(1) That portion of Accounts that are over 90 days past invoice date;
(2) That portion of the aggregate Accounts of a single customer that
exceeds 15% of the aggregate Accounts of the Borrower;
(3) That portion of Accounts that are disputed or subject to a claim
of offset or a contra account;
2
(4) That portion of Accounts not yet earned by the final delivery of
goods or rendition of services, as applicable, by the Borrower to
its customer or with respect to which the Lender is unable to
confirm receipt by a common carrier for delivery, and that
portion of Accounts sold as COD or similar terms;
(5) Accounts owed by any unit of government, whether foreign or
domestic (provided, however, that there shall be included in
Eligible Accounts that portion of Accounts owed by such units of
government with respect to which the Borrower has provided
evidence satisfactory to the Lender that (A) the Lender has
a first priority security interest and (B) such Account may be
enforced by the Lender directly against such unit of government
under all applicable laws);
(6) Accounts owed by an account debtor located outside the United
States or Canada which are not backed by a bank letter of credit
assigned to the Lender, in the possession of the Lender and
acceptable to the Lender in all respects, in its sole discretion,
or covered by a policy of foreign receivables insurance
acceptable to the Lender in its sole discretion;
(7) Accounts owed by an account debtor that is the subject of
bankruptcy proceedings or has gone out of business;
(8) Accounts owed by a shareholder, Subsidiary, Affiliate, officer or
employee of the Borrower;
(9) Accounts not subject to a duly perfected security interest in
favor of the Lender or which are subject to any lien, security
interest or claim in favor of any Person other than the Lender;
(10) That portion of Accounts that have been restructured, extended,
amended or modified;
(11) That portion of Accounts that constitutes finance charges or
sales or excise taxes;
(12) Accounts owed by an account debtor, regardless of whether
otherwise eligible, if 10% or more of the total amount due under
Accounts from such debtor is ineligible under clauses (1), (3) or
(10) above; and
(13) Accounts, or portions thereof, otherwise deemed ineligible by the
Lender in its sole discretion.
"Environmental Laws" has the meaning specified in Section 5.12 hereof.
3
"Equipment" means all of the Borrower's equipment, as such term is
defined in the UCC, whether now owned or hereafter acquired, which is not
subject to a security interest senior in priority to this Agreement,
including but not limited to all present and future machinery, vehicles,
furniture, fixtures, manufacturing equipment, shop equipment, office and
recordkeeping equipment, parts, tools, supplies, and including specifically
(without limitation) the goods described in any equipment schedule or list
herewith or hereafter furnished to the Lender by the Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Event of Default" has the meaning specified in Section 8.1 hereof.
"Floating Rate" means an annual rate equal to the sum of the Base
Rate plus five percent (5%) and which Floating Rate shall change when and as
the Base Rate changes.
"General Intangibles" means all of the Borrower's general
intangibles, as such term is defined in the UCC, whether now owned or
hereafter acquired, including (without limitation) all present and future
patents, patent applications, copyrights, trademarks, trade names, trade
secrets, customer or supplier lists and contracts, manuals, operating
instructions, permits, franchises, the right to use the Borrower's name, and
the goodwill of the Borrower's business.
"Inventory" means all of the Borrower's inventory, as such term is
defined in the UCC, whether now owned or hereafter acquired, whether
consisting of whole goods, whether acquired, held or furnished for sale, for
lease or under service contracts or for manufacture or processing, and
wherever located.
"Loan Documents" means this Agreement, the Note, the Security
Documents and any other agreements between the parties relating thereto.
"Lockbox" has the meaning specified in Section 4.1(e) hereof.
"Note" means the Revolving Note of the Borrower payable to the
order of the Lender in substantially the form attached hereto as Exhibit A.
"Obligations" has the meaning specified in Section 3.1 hereof.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
4
"Plan" means an employee benefit plan or other plan maintained for
employees of the Borrower and covered by Title IV of ERISA.
"Premises" means all premises where the Borrower conducts its
business and has any rights of possession, including (without limitation) the
premises legally described in Exhibit E attached hereto.
"Receivables" means each and every right of the Borrower to the
payment of money, whether such right to payment now exists or hereafter
arises, whether such right to payment arises out of a sale, lease or other
disposition of goods or other property, out of a rendering of services, out
of a loan, out of the overpayment of taxes or other liabilities, or otherwise
arises under any contract or agreement, whether such right to payment is
created, generated or earned by the Borrower or by some other person who
subsequently transfers such person's interest to the Borrower, whether such
right to payment is or is not already earned by performance, and howsoever
such right to payment may be evidenced, together with all other rights and
interests (including all liens and security interests) which the Borrower may
at any time have by law or agreement against any account debtor or other
obligor obligated to make any such payment or against any property of such
account debtor or other obligor; all including but not limited to all present
and future accounts, contract rights, loans and obligations receivable,
chattel papers, bonds, notes and other debt instruments, tax refunds and
rights to payment in the nature of general intangibles.
"Reportable Event" shall have the meaning assigned to that term in
Title IV of ERISA.
"Security Documents" means the Collateral Account Agreement and the
Lockbox Agreement each as described in Section 4.1 hereof.
"Security Interest" has the meaning specified in Section 3.1 hereof.
"Subsidiary" means any corporation of which more than 50% of the
outstanding shares of capital stock having general voting power under
ordinary circumstances to elect a majority of the board of directors of such
corporation, irrespective of whether or not at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency, is at the time directly or indirectly owned by
the Borrower, by the Borrower and one or more other Subsidiaries, or by one
or more other Subsidiaries.
"Termination Date" means December 31, 1998.
"UCC" means the Uniform Commercial Code as in effect from time to
time in the state designated in Section 9.12 hereof as the state whose laws
6
shall govern this Agreement, or in any other state whose laws are held to
govern this Agreement or any portion hereof.
ARTICLE II
Amount and Terms of the Credit Facility
---------------------------------------
Section 2.1 Advances. The Lender agrees, on the terms and subject
--------
to the conditions herein set forth, to make Advances to the Borrower from
time to time during the period from the date hereof to and including the
Termination Date, or the earlier date of termination in whole of the Credit
Facility pursuant to Section 2.4 or Section 8.2 hereof, in an aggregate
amount at any time outstanding not to exceed the Borrowing Base, which
Advances shall be secured by the Collateral as provided in Article III
hereof. The Credit Facility shall be a revolving facility and it is
contemplated that the Borrower will request Advances, make prepayments and
request additional Advances. The Borrower agrees to comply with the
following procedures in requesting Advances under this Section 2.1:
(a) The Borrower will not request any Advance under this Section 2.1
if, after giving effect to such requested Advance, the sum of the
outstanding and unpaid Advances made under this Section 2.1 would
exceed the Borrowing Base.
(b) Each request for an Advance under this Section 2.1 shall be made
to the Lender prior to 11:00 a.m. (Colorado time) of the day of
the requested Advance by the Borrower. Each request for an
Advance may be made in writing or by telephone, specifying
the date of the requested Advance and the amount thereof, and
shall be by (i) any officer of the Borrower; or (ii) any person
designated as the Borrower's agent by any officer of the
Borrower in a writing delivered to the Lender; or (iii) any
person reasonably believed by the Lender to be an officer of the
Borrower or such a designated agent.
(c) Upon fulfillment of the applicable conditions set forth in Article
IV hereof, the Lender shall disburse loan proceeds by crediting
the same to the Borrower's operating account number 312-0000000
maintained with Norwest Bank Colorado, National Association,
unless the Lender and the Borrower shall agree in writing to
another manner of disbursement. Upon request of the Lender, the
Borrower shall promptly confirm each telephonic request for an
Advance by executing and delivering an appropriate confirmation
certificate to the Lender. The Borrower shall be obligated to
repay all Advances under this Section 2.1 notwithstanding the
failure of the Lender to receive such confirmation and
notwithstanding the fact that the person requesting the same was
not in fact authorized to do so. Any request for an Advance under
this Section 2.1, whether written or telephonic, shall be deemed
to be a representation by the Borrower that (i) the condition set
6
forth in Section 2.1(a) hereof has been met, and (ii) the
conditions set forth in Section 4.2 hereof have been met as of
the time of the request.
Section 2.2 Note. All Advances made by the Lender under this Article
----
II shall be evidenced by and repayable with interest in accordance with the
Note. The principal of the Note shall be payable as provided herein and on
the earlier of the Termination Date or acceleration by the Lender pursuant to
Section 8.2 hereof, and shall bear interest as provided herein.
Section 2.3 Interest.
--------
(a) The principal of the Advances outstanding from time to time during
any month shall bear interest (computed on the basis of actual days
elapsed in a 360-day year) at the Floating Rate; provided, however,
that from the first day of any month during which any Default or
Event of Default occurs or exists at any time and until such
Default or Event of Default is cured to the satisfaction of the
Lender, in the Lender's discretion and without waiving any of its
other rights and remedies, the principal of the Advances
outstanding from time to time shall bear interest at the Default
Rate; and provided, further, that in any event no rate change shall
be put into effect which would result in a rate greater than the
highest rate permitted by law. Interest accruing on the principal
balance of the Advances outstanding from time to time shall be
payable on the last day of each month and on the Termination Date
or earlier demand or prepayment in full.
(b) In addition to any interest payable pursuant to Section 2.3(a)
hereof, the Borrower shall pay with respect to each calendar
quarter, beginning with the calendar quarter ending March 31, 1997,
a minimum interest charge equal to the difference between
(i) $7,500, and (ii) the sum of the interest actually paid by the
Borrower with respect to such period pursuant to Section 2.3(a).
The minimum interest charge payable with respect to a period of
less than three months shall be proportionately reduced.
Section 2.4 Voluntary Prepayment; Termination of Agreement by Borrower.
-----------------------------------------------------------
Except as otherwise provided herein, the Borrower may, in its discretion,
prepay the Advances in whole at any time or from time to time in part. The
Borrower may terminate this Agreement at any time and, subject to payment and
performance of all the Borrower's obligations to the Lender, may obtain any
release or termination of the Security Interest to which the Borrower is
otherwise entitled by law by (a) giving at least 30 days' prior written
notice to the Lender of the Borrower's intention to terminate this Agreement;
and (b) paying the Lender a prepayment fee of two percent (2%) of the
Commitment if the termination occurs on or before December 31, 1997, and one
percent (1%) of the Commitment if the termination occurs after December 31,
1997, but prior to the Termination Date, unless (i) the Credit Facility is
refinanced by an affiliate of Norwest Corporation, or (ii) the Credit
Agreement is terminated by the Borrower within 90 days of a request by the
Lender for payment of additional compensation pursuant to Section 2.12.
7
Section 2.5 Mandatory Prepayment. Without notice or demand, if the sum
--------------------
of the outstanding principal balance of the Advances shall at any time exceed
the Borrowing Base, the Borrower shall immediately prepay the Advances to the
extent necessary to reduce the sum of the outstanding principal balance of
the Advances to the Borrowing Base. Any payment received by the Lender under
this Section 2.5 or under Section 2.4 may be applied to the Advances,
including interest thereon and any fees, commissions, costs and expenses
hereunder and under the Security Documents, in such order and in such amounts
as the Lender, in its discretion, may from time to time determine.
Section 2.6 Payment. All payments of principal of and interest on
-------
the Advances shall be made to the Lender in immediately available funds. The
Borrower hereby authorizes the Lender in its discretion at any time or from
time to time and without request by the Borrower, to make an Advance to pay
such amounts and any fees, costs or expenses hereunder or under the Security
Documents.
Section 2.7 Payment on Non-Banking Days. Whenever any payment to
---------------------------
be made hereunder shall be stated to be due on a day which is not a Banking
Day, such payment may be made on the next succeeding Banking Day, and such
extension of time shall in such case be included in the computation of
interest on the Advances or the fees hereunder, as the case may be.
Section 2.8 Use of Proceeds. The proceeds of Advances shall be
---------------
used by the Borrower for ordinary working capital purposes.
Section 2.9 Liability Records. The Lender shall maintain liability
-----------------
records as to any and all Advances made or repaid and interest accrued or
paid under this Agreement. All entries made on any such record shall be
presumed correct until the Borrower establishes the contrary. On demand by
the Lender, the Borrower will admit and certify in writing the exact
principal balance that the Borrower then asserts to be outstanding to the
Lender for Advances under this Agreement. Any billing statement or
accounting rendered by the Lender shall be conclusive and fully binding
on the Borrower unless specific written notice of exception is given to the
Lender by the Borrower within 30 days after its receipt by the Borrower.
Section 2.10 Setoff. The Borrower agrees that the Lender may at any
------
time or from time to time, at its sole discretion and without demand and
without notice to anyone, setoff any liability owed to the Borrower by the
Lender, whether or not due, against any indebtedness owed to the Lender by
the Borrower (for Advances or for any other transaction or event), whether or
not due. In addition, each other Person holding a participating interest in
any Advances made to the Borrower by the Lender shall have the right to
appropriate or setoff any deposit or other liability then owed by such Person
to the Borrower, whether or not due, and apply the same to the payment of
said participating interest, as fully as if such Person had lent directly to
the Borrower the amount of such participating interest.
8
Section 2.11 Fees.
----
(a) The Borrower hereby agrees to pay the Lender a fully earned and
nonrefundable origination fee of $5,000, due and payable upon the
execution of this Agreement.
(b) The Borrower agrees to pay to the Lender an unused commitment fee
at the rate of one half of one percent (0.50%) per annum on the
average daily unused amount of the Commitment from the date hereof
to and including the date on which such facility is terminated,
due and payable monthly in arrears on the last day of each month,
commencing January, 1997, provided that any such commitment fee
remaining unpaid upon termination of the Credit Facility or
acceleration of the Note by the Lender pursuant to Section 8.2
hereof shall be due and payable on the date of such termination or
acceleration. Such fee shall be calculated on the basis of actual
days elapsed in a 360-day year.
(c) The Borrower hereby agrees to pay the Lender, on demand, a
quarterly administrative fee of $750 per calendar quarter during
which no Default or Event of Default exists at any time, and
during any calendar quarter which a Default or Event of Default
exists at any time, an administrative fee equal to the greater of
$750 or an amount equal to the Lender's audit fees and expenses
during such calendar quarter, determined at the rate of $60.00 per
hour (or, if different, the Lender's current hourly audit charge)
per auditor in connection with any audits or inspections by the
Lender of any collateral or the operations or business of the
Borrower, together with all actual out-of-pocket costs and
expenses incurred in conducting any such audit or inspection.
Section 2.12 Capital Adequacy. If the Lender shall determine that the
----------------
adoption after the date hereof of any applicable law, rule or regulation
regarding capital adequacy, or any change therein after the date hereof, any
change after the date hereof in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
the Lender, the Issuer or their respective parent corporations with any
guideline or request issued after the date hereof regarding capital
adequacy (whether nor not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing
the rate of return on the Lender's, the Issuer's or the Lender's or the
Issuer's parent corporation's capital as a consequence of the Lender's
or Issuer's obligations hereunder to a level below that which the Lender or
the Issuer's parent corporations could have achieved but for such adoption,
change or compliance (taking into consideration the Lender's or the Issuer's
policies with respect to capital adequacy and those of the Lender's or the
Issuer's parent corporations) by an amount deemed to the Lender or the
Issuer's parent corporations to be material, then from time to time on demand
by the Lender, the Borrower shall pay to the Lender such additional amount or
amounts as will compensate the Lender or the Issuer or their parent
corporations for such reduction. Certificates of the Lender sent to the
Borrower from time to time claiming compensation under this Section, stating
the reason therefor and setting forth in reasonable detail the calculation of
the additional amount or amounts to be paid to the Lender hereunder shall be
conclusive absent manifest error. In determining such amounts, the Lender,
the Issuer or their respective parent corporations may use any reasonable
averaging and attribution methods.
ARTICLE III
Security Interest
-----------------
Section 3.1 Grant of Security Interest. The Borrower hereby
--------------------------
assigns and grants to the Lender a security interest (collectively referred
to as the "Security Interests") in the Collateral, as security for the
payment and performance of each and every debt, liability and obligation of
every type and description which the Borrower may now or at any time
hereafter owe to the Lender (whether such debt, liability or obligation now
exists or is hereafter created or incurred, whether it arises in a
transaction involving the Lender alone or in a transaction involving other
creditors of the Borrower, and whether it is direct or indirect, due or to
become due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or sole, joint, several or joint and several, and including
specifically, but not limited to, all indebtedness of the Borrower arising
under this Agreement or any other loan or credit agreement or guaranty
between the Borrower and the Lender, whether now in effect or hereafter
entered into; all such debts, liabilities and obligations are herein
collectively referred to as the "Obligations").
Section 3.2 Notification of Account Debtors and Other Obligors. The
--------------------------------------------------
Lender may at any time notify any account debtor or other person obligated to
pay the amount due that payment shall be made directly to the Lockbox, and
may at any time after the occurrence of an Event of Default, notify any
account debtor or other person obligated to pay the amount due that such
right to payment has been assigned or transferred to the Lender for security
and shall be paid directly to the Lender. The Borrower will join in giving
such notice if the Lender so requests. At any time after the Borrower or the
Lender gives such notice to an account debtor or other obligor, the Lender
may, but need not, in the Lender's name or in the Borrower's name, (a)
demand, xxx for, collect or receive any money or property at any time payable
or receivable on account of, or securing, any such right to payment, or grant
any extension to, make any compromise or settlement with or otherwise
agree to waive, modify, amend or change the obligations (including collateral
obligations) of any such account debtor or other obligor; and (b) as agent
and attorney in fact of the Borrower, notify the United States Postal Service
to change the address for delivery of the Borrower's mail to any address
designated by the Lender, otherwise intercept the Borrower's mail, and
receive, open and dispose of the Borrower's mail, applying all Collateral as
permitted under this Agreement and holding all other mail for the Borrower's
account or forwarding such mail to the Borrower's last known address.
Section 3.3 Assignment of Insurance. As additional security for the
payment and performance of the Obligations, the Borrower hereby assigns to
10
the Lender any and all monies (including, without limitation, proceeds of
insurance and refunds of unearned premiums) due or to become due under, and
all other rights of the Borrower with respect to, any and all policies of
insurance now or at any time hereafter covering the Collateral or any
evidence thereof or any business records or valuable papers pertaining
thereto, and the Borrower hereby directs the issuer of any such policy to pay
all such monies directly to the Lender. At any time, whether before or
after the occurrence of any Event of Default, the Lender may (but need not),
in the Lender's name or in the Borrower's name, execute and deliver proof of
claim, receive all such monies, endorse checks and other instruments
representing payment of such monies, and adjust, litigate, compromise or
release any claim against the issuer of any such policy.
Section 3.4 Occupancy. (a) The Borrower hereby irrevocably grants to
---------
the Lender the right to take possession of the Premises at any time after
the occurrence and during the continuance of an Event of Default.
(b) The Lender may use the Premises only to hold, process, manufacture,
sell, use, store, liquidate, realize upon or otherwise dispose of goods
that are Collateral and for other purposes that the Lender may in good
xxxxx xxxx to be related or incidental purposes.
(c) The right of the Lender to hold the Premises shall cease and
terminate upon the earlier of (a) payment in full and discharge of all
Obligations, and (b) final sale or disposition of all goods constituting
Collateral and delivery of all such goods to purchasers.
(d) The Lender shall not be obligated to pay or account for any rent or
other compensation for the possession, occupancy or use of any of the
Premises; provided, however, in the event that the Lender does pay or
account for any rent or other compensation for the possession, occupancy
or use of any of the Premises, the Borrower shall reimburse the Lender
promptly for the full amount thereof. In addition, the Borrower will
pay, or reimburse the Lender for, all taxes, fees, duties, imposts,
charges and expenses at any time incurred by or imposed upon the Lender
by reason of the execution, delivery, existence, recordation,
performance or enforcement of this Agreement or the provisions of this
Section 3.4.
Section 3.5 License. The Borrower hereby grants to the Lender,
-------
subject, however, to any exclusive rights held by non-U.S. distributors of
the Borrower's products, a non-exclusive, worldwide and royalty-free license
to use or otherwise exploit all trademarks, franchises, trade names,
copyrights and patents of the Borrower for the purpose of selling, leasing or
otherwise disposing of any or all Collateral following an Event of Default.
11
ARTICLE IV
Conditions of Lending
---------------------
Section 4.1 Conditions Precedent to the Initial Advance. The
obligation of the Lender to make the initial Advance under the Credit
Facility or to issue or to cause the Issuer to issue the initial Letter of
Credit shall be subject to the condition precedent that the Lender shall have
received all of the following, each in form and substance satisfactory to the
Lender:
(a) This Agreement, properly executed on behalf of the Borrower.
(b) The Note, properly executed on behalf of the Borrower.
(c) A true and correct copy of any and all leases pursuant to
which the Borrower is leasing the Premises, together with a
landlord's disclaimer and consent with respect to each such
lease.
(d) A Collateral Account Agreement, duly executed by the Borrower
and a financial institution acceptable to the Lender,
pursuant to which the Borrower and the institution establish
a depository account (the "Collateral Account") in the name
of and under the sole and exclusive control of the Lender,
from which such institution agrees to transfer finally
collected funds to the Lender for application to the
Advances.
(e) A Lockbox Agreement, duly executed by the Borrower and an
institution acceptable to the Lender, pursuant to which the
Borrower agrees to maintain and direct account debtors to
make payment to, and such institution agrees to maintain and
process payments received in, a lockbox for the benefit of
the Lender (the "Lockbox"), from which Lockbox such
institution shall transfer funds to the Collateral Account.
(f) Current searches of appropriate filing offices showing that
(i) no state or federal tax liens have been filed and remain
in effect against the Borrower, (ii) no financing statements
have been filed and remain in effect against the Borrower,
except those financing statements relating to liens permitted
pursuant to Section 7.1 hereof and those financing statements
filed by the Lender, and (iii) the Lender has duly filed all
financing statements necessary to perfect the Security
Interests granted hereunder, to the extent the Security
Interests are capable of being perfected by filing.
(g) A certificate of the Secretary or an Assistant Secretary of
the Borrower, certifying as to (i) the resolutions of the
directors and, if required, the shareholders of the Borrower,
authorizing the execution, delivery and performance of this
Agreement and the Security Documents, (ii) the articles of
incorporation and bylaws of the Borrower, and (iii) the
signatures of the officers or agents of the Borrower
authorized to execute and deliver this Agreement, the
12
Security Documents and other instruments, agreements and
certificates, including Advance requests, on behalf of the
Borrower.
(h) A current certificate issued by the Secretary of State of the
state of the Borrower's incorporation, certifying that the
Borrower is in compliance with all corporate organizational
requirements of such state.
(i) Evidence that the Borrower is duly licensed or qualified to
transact business in all jurisdictions where the character of
the property owned or leased or the nature of the business
transacted by it makes such licensing or qualification
necessary.
(j) An opinion of counsel to the Borrower, addressed to the
Lender.
(k) Support Agreements duly executed by Xxxxxxx X. Xxxxx and
Xxxxxx X. Xxxxxxxx.
(l) Certificates of the insurance required hereunder, with all
hazard insurance containing a lender's loss payable
endorsement in favor of the Lender and with all liability
insurance naming the Lender as an additional insured.
(m) Payment of the fees due through the date of the initial
Advance under Section 2.11 hereof and expenses incurred by
the Lender through such date and required to be paid
by the Borrower under Section 9.7 hereof.
(n) Immediately after the initial Advance under Section 1.1
hereof and payment of the fees required to be paid pursuant
to Section 2.11 hereof, the Borrowing Base shall exceed the
principal balance of the Note by at least $25,000.
(o) Such other documents as the Lender in its sole discretion may
require.
Section 4.2 Conditions Precedent to All Advances. The obligation
of the Lender to make each Advance shall be subject to the further conditions
precedent that on such date:
(a) the representation and warranties contained in Article V
hereof are correct on and as of the date of such Advance as
though made on and as of such date, except to the extent that
such representations and warranties relate solely to an
earlier date; and
(b) no event has occurred and is continuing, or would result from
such Advance which constitutes a Default or an Event of
Default.
13
ARTICLE V
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lender as follows:
Section 5.1 Corporate Existence and Power; Name; Chief Executive
----------------------------------------------------
Office;
------
Inventory and Equipment Locations. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Colorado, and is duly licensed or qualified to transact
business in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such licensing or
qualification necessary. The Borrower has all requisite power and authority,
corporate or otherwise, to conduct its business, to own its properties
and to execute and deliver, and to perform all of its obligations under, the
Loan Documents. During its corporate existence, the Borrower has done
business solely under the names set forth in Exhibit B hereto. The chief
executive office and principal place of business of the Borrower is located
at the address set forth in Exhibit B hereto, and all of the Borrower's
records relating to its business or the Collateral are kept at that location.
All Inventory and Equipment is located at that location or at one of the
other locations set forth in Exhibit B hereto.
Section 5.2 Authorization of Borrowing; No Conflict as to Law or
----------------------------------------------------
Agreements.
----------
The execution, delivery and performance by the Borrower of the
Loan Documents and the borrowings from time to time hereunder have been duly
authorized by all necessary corporate action and do not and will not (a)
require any consent or approval of the stockholders of the Borrower other
than that which has been obtained as of the date hereof, (b) require any
authorization, consent or approval by, or registration, declaration or filing
with, or notice to, any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any third party, except
such authorization, consent, approval, registration, declaration, filing or
notice as has been obtained, accomplished or given prior to the date hereof,
(c) violate any provision of any law, rule or regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System) or of any order, writ, injunction or decree presently in effect
having applicability to the Borrower or of the Articles of Incorporation or
Bylaws of the Borrower, (d) result in a breach of or constitute a default
under any indenture or loan or credit agreement or any other material
agreement, lease or instrument to which the Borrower is a party or by which
it or its properties may be bound or affected, or (e) result in, or require,
the creation or imposition of any mortgage, deed of trust, pledge, lien,
security interest or other charge or encumbrance of any nature (other than
the Security Interests) upon or with respect to any of the properties now
owned or hereafter acquired by the Borrower.
Section 5.3 Legal Agreements. This Agreement constitutes and,
----------------
upon due execution by the Borrower, the other Loan Documents will constitute
14
the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their respective terms.
Section 5.4 Subsidiaries. Except as set forth in Exhibit B attached
------------
hereto, the Borrower has no Subsidiaries.
Section 5.5 Financial Condition; No Adverse Change. The Borrower
-------------------
has heretofore furnished to the Lender unaudited financial statements of the
Borrower as of October 31, 1996, and those statements fairly present the
financial condition of the Borrower on the dates thereof and the results of
its operations and cash flows for the periods then ended and were prepared in
accordance with generally accepted accounting principles. Since the date of
the most recent financial statements, there has been no material adverse
change in the business, properties or condition (financial or otherwise) of
the Borrower.
Section 5.6 Litigation. Except as otherwise disclosed to the
----------
Lender in writing, there are no actions, suits or proceedings pending or, to
the knowledge of the Borrower, threatened against or affecting the Borrower
or any of its Affiliates or the properties of the Borrower or any of its
Affiliates before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which, if determined
adversely to the Borrower or any of its Affiliates, would have a material
adverse effect on the financial condition, properties or operations of the
Borrower or any of its Affiliates.
Section 5.7 Regulation U. The Borrower is not engaged in the
------------
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System), and no part of the proceeds of any Advance will be
used to purchase or carry any margin stock or to extend credit to others for
the purpose of purchasing or carrying any margin stock.
Section 5.8 Taxes. The Borrower and its Affiliates have paid or
-----
caused to be paid to the proper authorities when due all federal, state and
local taxes required to be withheld by each of them. The Borrower and its
Affiliates have filed all federal, state and local tax returns which to the
knowledge of the officers of the Borrower or any Affiliate, as the case may
be, are required to be filed, and the Borrower and its Affiliates have paid
or caused to be paid to the respective taxing authorities all taxes as shown
on said returns or on any assessment received by any of them to the extent
such taxes have become due.
Section 5.9 Titles and Liens. The Borrower has good and absolute
----------------
title to all Collateral described in the collateral reports provided to the
Lender and all other Collateral, properties and assets reflected in the
latest balance sheet referred to in Section 5.5 hereof and all proceeds
thereof, free and clear of all mortgages, security interests, liens and
encumbrances, except for (i) mortgages, security interests and liens
permitted by Section 7.1 hereof, and (ii) in the case of any such property
which is not Collateral or other collateral described in the Security
Documents, covenants, restrictions, rights, easements and minor
15
irregularities in title which do not materially interfere with the business
or operations of the Borrower as presently conducted. No financing
statement naming the Borrower as debtor is on file in any office except to
perfect only security interests permitted by Section 7.1 hereof.
Section 5.10 Plans. Except as disclosed to the Lender in writing prior
-----
to the date hereof, neither the Borrower nor any of its Affiliates maintains
or has maintained any Plan.
Section 5.11 Default. The Borrower is in compliance with all provisions
-------
of all agreements, instruments, decrees and orders to which it is a party or
by which it or its property is bound or affected, the breach or default of
which could have a material adverse effect on the financial condition,
properties or operations of the Borrower.
Section 5.12 Environmental Protection. The Borrower, to the best of
------------------------
the Borrower's knowledge, has obtained all permits, licenses and other
authorizations which are required under federal, state and local laws and
regulations relating to emissions, discharges, releases of pollutants,
contaminants, hazardous or toxic materials, or wastes into ambient air,
surface water, ground water or land, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants or hazardous or toxic
materials or wastes ("Environmental Laws") at the Borrower's facilities or
in connection with the operation of its facilities. Except as previously
disclosed to the Lender in writing, the Borrower and all activities of the
Borrower at its facilities comply, to the best of the Borrower's knowledge,
with all Environmental Laws and with all terms and conditions of any required
permits, licenses and authorizations applicable to the Borrower with respect
thereto. Except as previously disclosed to the Lender in writing, the
Borrower is also in compliance, to the best of the Borrower's knowledge,
with all limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules and timetables contained in Environmental
Laws or contained in any plan, order, decree, judgment or notice of which the
Borrower is aware. Except as previously disclosed to the Lender in writing,
the Borrower is not aware of, nor has the Borrower received notice of, any
events, conditions, circumstances, activities, practices, incidents, actions
or plans which may interfere with or prevent continued compliance with, or
which may give rise to any liability under, any Environmental Laws.
Section 5.13 Submissions to Lender. All financial and other information
---------------------
provided to the Lender by or on behalf of the Borrower in connection with the
Borrower's request for the credit facilities contemplated hereby is true and
correct in all material respects and, as to projections, valuations or
proforma financial statements, present a good faith opinion as to such
projections, valuations and proforma condition and results.
Section 5.14 Financing Statements. The Borrower has provided to the
--------------------
Lender signed financing statements sufficient when filed to perfect the
Security Interests and the other security interests created by the Security
Documents. When such financing statements are filed in the offices
noted therein, the Lender will have a valid and perfected security interest
in all Collateral and all other collateral described in the Security
16
Documents which is capable of being perfected by filing financing statements.
None of the Collateral or other collateral covered by the Security Documents
is or will become a fixture on real estate, unless a sufficient fixture
filing is in effect with respect thereto.
Section 5.15 Rights to Payment. Each right to payment and each
-----------------
instrument, document, chattel paper and other agreement constituting or
evidencing Collateral or other collateral covered by the Security Documents
is (or, in the case of all future Collateral or such other collateral,
will be when arising or issued) the valid, genuine and legally enforceable
obligation, subject to no defense, setoff or counterclaim, of the account
debtor or other obligor named therein or in the Borrower's records pertaining
thereto as being obligated to pay such obligation.
ARTICLE VI
Affirmative Covenants of the Borrower
-------------------------------------
So long as the Note shall remain unpaid or the Credit Facility
shall be outstanding, the Borrower will comply with the following
requirements, unless the Lender shall otherwise consent in writing:
Section 6.1 Reporting Requirements. The Borrower will deliver, or
----------------------
cause to be delivered, to the Lender each of the following, which shall be in
form and detail acceptable to the Lender:
(a) as soon as available, and in any event within 105 days after
the end of each fiscal year of DNC, audited consolidated and
consolidating financial statements of DNC and its subsidiaries,
including the Borrower, with the unqualified opinion of
independent certified public accountants selected by DNC and
acceptable to the Lender, which annual financial statements
shall include the balance sheet of DNC and its subsidiaries,
including the Borrower, as at the end of such fiscal year and
the related statements of income, retained earnings and cash
flows of DNC and its subsidiaries, including the Borrower, for
the fiscal year then ended, all in reasonable detail and
prepared in accordance with generally accepted accounting
principles applied on a basis consistent with the accounting
practices applied in the financial statements referred to in
Section 5.5 hereof, together with (i) a report signed by such
accountants stating that in making the investigations necessary
for said opinion they obtained no knowledge, except as
specifically stated, of any Default or Event of Default
hereunder and all relevant facts in reasonable detail to
evidence, and the computations as to, whether or not the
Borrower is in compliance with the requirements set forth in
Sections 6.12 through 6.13 and Section 7.10 hereof; and (ii) a
certificate of the chief financial officer of DNC stating that
such financial statements have been prepared in accordance with
generally accepted accounting principles applied on a basis
17
consistent with the accounting practices reflected in the
annual financial statements referred to in Section 5.5 hereof
and whether or not such officer has knowledge of the occurrence
of any Default or Event of Default hereunder and, if so,
stating in reasonable detail the facts with respect thereto;
(b) as soon as available and in any event within 20 days after the
end of each month, an unaudited/internal balance sheet and
statements of income and retained earnings of the Borrower as
at the end of and for such month and for the year to date
period then ended, in reasonable detail and stating in
comparative form the figures for the corresponding date and
periods in the previous year, all prepared in accordance with
generally accepted accounting principles applied on a basis
consistent with the accounting practices reflected in the
financial statements referred to in Section 5.5 hereof, subject
to year-end audit adjustments; and accompanied by a certificate
of the chief financial officer of the Borrower, substantially
in the form of Exhibit D hereto stating (i) that such financial
statements have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent
with the accounting practices reflected in the financial
statements referred to in Section 5.5 hereof, subject to
year-end audit adjustments, (ii) whether or not such officer
has knowledge of the occurrence of any Default or Event of
Default hereunder not theretofore reported and remedied and, if
so, stating in reasonable detail the facts with respect
thereto, and (iii) all relevant facts in reasonable detail to
evidence, and the computations as to, whether or not the
Borrower is in compliance with the requirements set forth in
Sections 6.12 through 6.13 and Section 7.10 hereof;
(c) within 15 days after the end of each month, agings of the
Borrower's accounts receivable and its accounts payable as at
the end of such month;
(d) on each Banking Day an assignment of Receivables and a
collection report;
(e) at least 30 days before the beginning of each fiscal year of
the Borrower, the projected balance sheets and income
statements for each month of such year, each in reasonable
detail, representing the good faith projections of the Borrower
and certified by the Borrower's chief financial officer as
being the most accurate projections available;
(f) immediately after the commencement thereof, notice in writing
of all litigation and of all proceedings before any
governmental or regulatory agency affecting the Borrower of the
type described in Section 5.6 hereof or which seek a monetary
recovery against the Borrower in excess of $25,000;
(g) as promptly as practicable (but in any event not later than
five business days) after an officer of the Borrower obtains
knowledge of the occurrence of any breach, default or event of
default under any Security Document or any event which
constitutes a Default or Event of Default hereunder, notice of
such occurrence, together with a detailed statement by a
18
responsible officer of the Borrower of the steps being taken by
the Borrower to cure the effect of such breach, default or
event;
(h) promptly upon knowledge thereof, notice of (i) any disputes or
claims by customers of the Borrower in excess of $5,000
individual or in excess of $20,000 in the aggregate; and (ii)
any change in the persons constituting the officers and
directors of the Borrower;
(i) promptly upon knowledge thereof, notice of any loss of or
material damage to any Collateral or other collateral covered
by the Security Documents or of any substantial adverse change
in any Collateral or such other collateral or the prospect of
payment thereof;
(j) promptly upon their distribution, copies of all financial
statements, reports and proxy statements which DNC shall have
sent to its stockholders;
(k) promptly after the sending or filing thereof, copies of all
regular and periodic financial reports which DNC shall file
with the Securities and Exchange Commission or any national
securities exchange;
(l) promptly upon knowledge thereof, notice of the violation by the
Borrower of any law, rule or regulation, the non-compliance
with which could materially and adversely affect its business
or its financial condition; and
(m) from time to time, with reasonable promptness, any and all
receivables schedules, collection reports, deposit records,
equipment schedules, copies of invoices to account debtors,
shipment documents and delivery receipts for goods sold, and
such other material, reports, records or information as the
Lender may reasonably request.
Section 6.2 Books and Records; Inspection and Examination. The
---------------------------------------------
Borrower will keep accurate books of record and account for itself pertaining
to the Collateral and pertaining to the Borrower's business and financial
condition and such other matters as the Lender may from time to time request
in which true and complete entries will be made in accordance with generally
accepted accounting principles consistently applied and, upon request of the
Lender, will permit any officer, employee, attorney or accountant for the
Lender to audit, review, make extracts from or copy any and all corporate and
financial books and records of the Borrower at all times during ordinary
business hours, to send and discuss with account debtors and other obligors
requests for verification of amounts owed to the Borrower, and to discuss the
affairs of the Borrower with any of its directors, officers, employees or
agents. The Borrower will permit the Lender, or its employees, accountants,
attorneys or agents, to examine and inspect any Collateral, other collateral
covered by the Security Documents or any other property of the Borrower at
any time during ordinary business hours.
19
Section 6.3 Account Verification. The Borrower will at any time and
from time to time upon request of the Lender send requests for verification
of accounts or notices of assignment to account debtors and other obligors.
Section 6.4 Compliance with Laws; Environmental Indemnity. The
---------------------------------------------
Borrower will (a) comply with the requirements of applicable laws and
regulations, the non-compliance with which would materially and adversely
affect its business or its financial condition, (b) comply with all
applicable Environmental Laws and obtain any permits, licenses or similar
approvals required by any such Environmental Laws, and (c) use and keep the
Collateral, and will require that others use and keep the Collateral, only
for lawful purposes, without violation of any federal, state or local law,
statute or ordinance. The Borrower will indemnify, defend and hold the
Lender harmless from and against any claims, loss or damage to which the
Lender may be subjected as a result of any past, present or future existence,
use, handling, storage, transportation or disposal of any hazardous waste or
substance or toxic substance by the Borrower or on property owned, leased or
controlled by the Borrower. This indemnification agreement shall survive the
termination of this Agreement and payment of the indebtedness hereunder.
Section 6.5 Payment of Taxes and Other Claims. The Borrower will pay
---------------------------------
or discharge, when due, (a) all taxes, assessments and governmental charges
levied or imposed upon it or upon its income or profits, upon any properties
belonging to it (including, without limitation, the Collateral) or upon or
against the creation, perfection or continuance of the Security Interests,
prior to the date on which penalties attach thereto, (b) all federal, state
and local taxes required to be withheld by it, and (c) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien or
charge upon any properties of the Borrower; provided, that the Borrower shall
not be required to pay any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
Section 6.6 Maintenance of Properties.
--------------------------
(a) The Borrower will keep and maintain the Collateral, the other
collateral covered by the Security Documents and all of its other
properties necessary or useful in its business in good condition,
repair and working order (normal wear and tear excepted) and
will from time to time replace or repair any worn, defective or
broken parts; provided, however, that nothing in this Section 6.6
shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties if such discontinuance is,
in the judgment of the Lender, desirable in the conduct of the
Borrower's business and not disadvantageous in any material
respect to the Lender.
(b) The Borrower will defend the Collateral against all claims or
demands of all persons (other than the Lender) claiming the
Collateral or any interest therein.
20
(c) The Borrower will keep all Collateral and other collateral
covered by the Security Documents free and clear of all security
interests, liens and encumbrances except the Security Interests
and other security interests permitted by Section 7.1 hereof.
Section 6.7 Insurance. The Borrower will obtain and at all times
---------
maintain insurance with insurers believed by the Borrower to be responsible
and reputable, in such amounts and against such risks as may from time to
time be required by the Lender, which insurance shall include business
interruption insurance, but in all events in such amounts and against such
risks as is usually carried by companies engaged in similar business and
owning similar properties in the same general areas in which the Borrower
operates. Without limiting the generality of the foregoing, the Borrower
will at all times keep all tangible Collateral insured against risks of fire
(including so-called extended coverage), theft, collision (for Collateral
consisting of motor vehicles) and such other risks and in such amounts as the
Lender may reasonably request, with any loss payable to the Lender to the
extent of its interest, and all policies of such insurance shall contain a
lender's loss payable endorsement for the benefit of the Lender. All
policies of liability insurance required hereunder shall name the Lender as
an additional insured.
Section 6.8 Preservation of Corporate Existence. The Borrower will
-----------------------------------
preserve and maintain its corporate existence and all of its rights,
privileges and franchises necessary or desirable in the normal conduct of its
business and shall conduct its business in an orderly, efficient and
regular manner.
Section 6.9 Delivery of Instruments, etc. Upon request by the Lender,
----------------------------
the Borrower will promptly deliver to the Lender in pledge all instruments,
documents and chattel papers constituting Collateral, duly endorsed or
assigned by the Borrower.
Section 6.10 Lockbox; Collateral Account.
---------------------------
(a) The Borrower will irrevocably direct all present and future Account
debtors and other Persons obligated to make payments constituting
Collateral to make such payments directly to the Lockbox. All of
the Borrower's invoices, account statements and other written or
oral communications directing, instructing, demanding or requesting
payment of any Account or any other amount constituting Collateral
shall conspicuously direct that all payments be made to the Lockbox
and shall include the Lockbox address. All payments received in
the Lockbox shall be processed to the Collateral Account.
(b) The Borrower agrees to deposit in the Collateral Account or, at the
Lender's option, to deliver to the Lender all collections on
Accounts, contract rights, chattel paper and other rights to
payment constituting Collateral, and all other cash proceeds of
Collateral, which the Borrower may receive directly notwithstanding
its direction to Account debtors and other obligors to make
payments to the Lockbox, immediately upon receipt thereof, in
21
the form received, except for the Borrower's endorsement when
deemed necessary. In the event that there are no outstanding
Advances and the loan balance is zero, at the Borrower's written
request, the Lender shall direct the Collateral Account bank to
deposit proceeds or collections of Collateral into the Borrower's
operating account. Until delivered to the Lender or deposited in
the Collateral Account, all proceeds or collections of Collateral
shall be held in trust by the Borrower for and as the property of
the Lender and shall not be commingled with any funds or property
of the Borrower. Amounts deposited in the Collateral Account shall
not bear interest and shall not be subject to withdrawal by the
Borrower, except after full payment and discharge of all
Obligations. All such collections shall constitute proceeds of
Collateral and shall not constitute payment of any Obligation.
Collected funds from the Collateral Account may be transferred to
the Lender's general account, and the Lender may deposit in its
general account or in the Collateral Account any and all
collections received by it directly from the Borrower. The Lender
may commingle such funds with other property of the Lender or any
other person. The Lender shall, after allowing two Banking Days
for collection and two Banking Days for processing, apply such
funds to the payment of any and all Obligations, in any order or
manner of application satisfactory to the Lender. All items
delivered to the Lender or deposited in the Collateral Account
shall be subject to final payment. If any such item is returned
uncollected, the Borrower will immediately pay the Lender, or, for
items deposited in the Collateral Account, the bank maintaining
such account, the amount of that item, or such bank at its
discretion may charge any uncollected item to the Borrower's
commercial account or other account. The Borrower shall be liable
as an endorser on all items deposited in the Collateral Account,
whether or not in fact endorsed by the Borrower.
Section 6.11 Performance by the Lender. If the Borrower at any time
-------------------------
fails to perform or observe any of the foregoing covenants contained in this
Article VI or elsewhere herein, and if such failure shall continue for a
period of ten calendar days after the Lender gives the Borrower written
notice thereof (or in the case of the agreements contained in Sections 6.5,
6.7 and 6.10 hereof, immediately upon the occurrence of such failure, without
notice or lapse of time), the Lender may, but need not, perform or observe
such covenant on behalf and in the name, place and stead of the Borrower (or,
at the Lender's option, in the Lender's name) and may, but need not, take any
and all other actions which the Lender may reasonably deem necessary to cure
or correct such failure (including, without limitation, the payment of taxes,
the satisfaction of security interests, liens or encumbrances, the
performance of obligations owed to account debtors or other obligors, the
procurement and maintenance of insurance, the execution of assignments,
security agreements and financing statements, and the endorsement of
instruments); and the Borrower shall thereupon pay to the Lender on demand
the amount of all monies expended and all costs and expenses (including
reasonable attorneys' fees and legal expenses) incurred by the Lender in
connection with or as a result of the performance or observance of such
agreements or the taking of such action by the Lender, together with interest
thereon from the date expended or incurred at the Floating Rate. To
22
facilitate the performance or observance by the Lender of such covenants of
the Borrower, the Borrower hereby irrevocably appoints the Lender, or the
delegate of the Lender, acting alone, as the attorney in fact of the Borrower
(which appointment is coupled with an interest) with the right (but not the
duty) from time to time to create, prepare, complete, execute, deliver,
endorse or file in the name and on behalf of the Borrower any and all
instruments, documents, assignments, security agreements, financing
statements, applications for insurance and other agreements and writings
required to be obtained, executed, delivered or endorsed by the Borrower
under this Section 6.11.
Section 6.12 Maximum Loss. The Borrower shall not have during any
------------
month or period of two consecutive months, commencing with January, 1997, an
after-tax net loss, determined in accordance with generally accepted
accounting principles but excluding extraordinary gains, of $50,000 or more.
Section 6.13 Cumulative Net Profits. The Borrower shall, at the end of
----------------------
each period set forth below, have net after-tax income for such period,
determined in accordance with generally accepted accounting principles, but
excluding extraordinary gains, of an amount which is greater than or equal to
the amount set forth opposite such period:
Period Net Profits
-------------------------------- --------------
Six months ending March 31, 1997 $ 25,000
Nine months ending June 30, 1997 $ 50,000
Twelve months ending September 30, 1997 $ 75,000
Prior to September 1, 1997, the Lender and the Borrower shall negotiate in
good faith as to the net profits that the Borrower shall be required to
achieve for periods after September 30, 1997, but if the Borrower and the
Lender do not agree, the Lender may designate the required net profits in its
sole discretion and the failure of the Borrower to achieve the net profits
designated by the Lender pursuant to this Section 6.13 shall constitute a
Default by the Borrower hereunder.
ARTICLE VII
Negative Covenants
------------------
So long as the Note shall remain unpaid or the Credit Facility
shall be outstanding, the Borrower agrees that, without the prior written
consent of the Lender:
Section 7.1 Liens. The Borrower will not create, incur or suffer
-----
to exist any mortgage, deed of trust, pledge, lien, security interest,
assignment or transfer upon or of any of its assets, now owned or hereafter
23
acquired, to secure any indebtedness; excluding, however, from the operation
-------
of the foregoing:
(a) mortgages, deeds of trust, pledges, liens, security interests and
assignments in existence on the date hereof and listed in Exhibit
C hereto, securing indebtedness for borrowed money permitted under
Section 7.2 hereof;
(b) the Security Interests; and
(c) purchase money security interests relating to the acquisition of
machinery and equipment of the Borrower so long as the Borrower is
in, and maintains, compliance with every other provision of this
Agreement.
Section 7.2 Indebtedness. The Borrower will not incur, create, assume
------------
or permit to exist any indebtedness or liability on account of deposits or
advances or any indebtedness for borrowed money, or any other indebtedness or
liability evidenced by notes, bonds, debentures or similar obligations,
except:
(a) indebtedness arising hereunder;
(b) indebtedness of the Borrower in existence on the date hereof and
listed in Exhibit C hereto; and
(c) indebtedness relating to liens permitted in accordance with
Section 7.1(c) hereof.
Section 7.3 Guaranties. The Borrower will not assume, guarantee,
----------
endorse or otherwise become directly or contingently liable in connection
with any obligations of any other Person, except:
(a) the endorsement of negotiable instruments by the Borrower for
deposit or collection or similar transactions in the ordinary
course of business; and
(b) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons
in existence on the date hereof and listed in Exhibit C hereto.
Section 7.4 Investments and Subsidiaries. (a) The Borrower will not
purchase or hold beneficially any stock or other securities or evidences of
indebtedness of, make or permit to exist any loans or advances to, or make
any investment or acquire any interest whatsoever in, any other Person,
including specifically but without limitation any partnership or joint
venture, except:
24
(1) investments in direct obligations of the United States of
America or any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America having a maturity of one year or less, commercial paper issued by
U.S. corporations rated "A-1" or "A-2" by Standard & Poors Corporation or
"P-1" or "P-2" by Xxxxx'x Investors Service or certificates of deposit or
bankers' acceptances having a maturity of one year or less issued by
members of the Federal Reserve System having deposits in excess of
$100,000,000 (which certificates of deposit or bankers' acceptances are
fully insured by the Federal Deposit Insurance Corporation);
(2) travel advances or loans to officers and employees of the
Borrower not exceeding at any one time an aggregate of $15,000;
(3) advances in the form of progress payments, prepaid rent or
security deposits; and
(4) loans or advances to DNC outstanding on the date of this
Agreement plus loans or advances to DNC made after the date of this
Agreement provided that no more than $8,000 of loans or advances are made
in any calendar month and at the time any such loans or advances are made
(i) no Default or Event of Default has occurred and is continuing or
would exist immediately after such loan or advance is made, and (ii)
immediately after such loan or advance is made the Borrower has no
undisputed trade payables which are more than 30 days past due and the
Borrowing Base exceeds the outstanding principal balance of the Note by
at least $25,000.
(b) The Borrower will not create or permit to exist any
Subsidiary, other than any Subsidiary in existence on the
date hereof and listed in Exhibit B hereto.
Section 7.5 Dividends. The Borrower will not declare or pay any
---------
dividends (other than dividends payable solely in stock of the Borrower) on
any class of its stock or make any payment on account of the purchase,
redemption or other retirement of any shares of such stock or make any
distribution in respect thereof, either directly or indirectly.
Section 7.6 Sale or Transfer of Assets; Suspension of Business
--------------------------------------------------
Operations.
----------
The Borrower will not sell, lease, assign, transfer or otherwise dispose of
(i) the stock of any Subsidiary, (ii) all or a substantial part of its
assets, or (iii) any Collateral or any interest therein (whether in one
transaction or in a series of transactions) to any other Person other than
the sale of Inventory in the ordinary course of business and will not
liquidate, dissolve or suspend business operations. The Borrower will not in
any manner transfer any property without prior or present receipt of full and
adequate consideration.
26
Section 7.7 Consolidation and Merger; Asset Acquisitions. The Borrower
--------------------------------------------
will not consolidate with or merge into any Person, or permit any other
Person to merge into it, or acquire (in a transaction analogous in purpose or
effect to a consolidation or merger) all or substantially all the assets of
any other Person.
Section 7.8 Sale and Leaseback. The Borrower will not enter into any
------------------
arrangement, directly or indirectly, with any other Person whereby the
Borrower shall sell or transfer any real or personal property, whether now
owned or hereafter acquired, and then or thereafter rent or lease as lessee
such property or any part thereof or any other property which the Borrower
intends to use for substantially the same purpose or purposes as the property
being sold or transferred.
Section 7.9 Restrictions on Nature of Business. The Borrower will not
----------------------------------
engage in any line of business materially different from that presently
engaged in by the Borrower and will not purchase, lease or otherwise acquire
assets not related to its business.
Section 7.10 Capital Expenditures. The Borrower will not expend or
--------------------
contract to expend, in the aggregate during any fiscal year, more than (a)
$50,000 or (b) $100,000, if DNC makes an capital investment in the Borrower
in an amount equal to or more than $50,000, for the lease, purchase or other
acquisition of any capital asset, or for the lease of any other asset, whether
payable currently or in the future.
Section 7.11 Accounting. The Borrower will not adopt any material
----------
change in accounting principles other than as required by generally accepted
accounting principles. The Borrower will not adopt, permit or consent to any
change in its fiscal year.
Section 7.12 Discounts, etc. The Borrower will not, after notice from
--------------
the Lender, grant any discount, credit or allowance to any customer of the
Borrower or accept any return of goods sold (other than a return of defective
merchandise in the ordinary course of business), or at any time (whether
before after notice from the Lender) modify, amend, subordinate, cancel or
terminate the obligation of any account debtor or other obligor of the
Borrower.
Section 7.13 Defined Benefit Pension Plans. The Borrower will not
-----------------------------
adopt, create, assume or become a party to any Plan, unless disclosed to the
Lender pursuant to Section 5.10 hereof.
Section 7.14 Other Defaults. The Borrower will not permit any breach,
--------------
default or event of default to occur under any note, loan agreement,
indenture, lease, mortgage, contract for deed, security agreement or other
contractual obligation binding upon the Borrower, in excess of $2,000
singly or in the aggregate.
26
Section 7.15 Place of Business; Name. The Borrower will not transfer
-----------------------
its chief executive office or principal place of business, or move, relocate,
close or sell any business location outside of Jefferson County, the City and
County of Denver, Arapahoe County, Xxxxx County or Xxxxxxx County (the
"Counties") provided that, if the Borrower transfers its chief executive
office or principal place of business within the Counties, or moves,
relocates, closes or sells any business location within the Counties, the
Borrower shall notify the Lender in writing of such transfer, move,
relocation, closure or sale at least thirty days before such transfer, move,
relocation, closure or sale occurs. The Borrower will not permit any
tangible Collateral or any records pertaining to the Collateral to be located
in any state or area in which, in the event of such location, a financing
statement covering such Collateral would be required to be, but has not in
fact been, filed in order to perfect the Security Interests. The Borrower
will not change its name.
Section 7.16 Organizational Documents. The Borrower will not amend its
------------------------
certificate of incorporation, articles of incorporation or bylaws.
ARTICLE VIII
Events of Default, Rights and Remedies
--------------------------------------
Section 8.1 Events of Default. "Event of Default", wherever used
-----------------
herein, means any one of the following events:
(a) Default in the payment of any interest on or principal of the
Note when it becomes due and payable; or
(b) Default in the payment of any fees, commissions, costs or
expenses required to be paid by the Borrower under this
Agreement; or
(c) Default in the performance, or breach, of any covenant or
agreement of the Borrower contained in this Agreement; or
(d) The Borrower shall be or become insolvent, or admit in writing
its inability to pay its debts as they mature, or make an
assignment for the benefit of creditors; or the Borrower shall
apply for or consent to the appointment of any receiver,
trustee, or similar officer for it for all or any substantial
part of its property; or such receiver, trustee or similar
officer shall be appointed without the application or consent
of the Borrower; or the Borrower shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it
under the laws of any jurisdiction; or any such proceeding
shall be instituted (by petition, application or otherwise)
27
against the Borrower; or any judgment, writ, warrant of
attachment, garnishment or execution or similar process
shall be issued or levied against a substantial part of the
property of the Borrower; or
(e) A petition shall be filed by or against the Borrower under the
United States Bankruptcy Code naming the Borrower as debtor; or
(f) Any representation or warranty made by the Borrower in this
Agreement, any agreement, certificate, instrument or financial
statement or other statement contemplated by or made or
delivered pursuant to or in connection with this Agreement
shall prove to have been incorrect in any material respect when
deemed to be effective; or
(g) The rendering against the Borrower of a final judgment, decree
or order for the payment of money in excess of $35,000 which is
not covered by insurance under circumstances where the insurer
does not contest coverage, and the continuance of such
judgment, decree or order unsatisfied and in effect for any
period of 30 consecutive days without a stay of execution; or
(h) A default under any bond, debenture, note or other evidence of
indebtedness of the Borrower owed to any Person other than the
Lender, or under any indenture or other instrument under which
any such evidence of indebtedness has been issued or by which
it is governed, or under any lease of any of the Premises, and
the expiration of the applicable period of grace, if any,
specified in such evidence of indebtedness, indenture, other
instrument or lease; or
(i) An event of default shall occur under any Security Document or
under any other security agreement, mortgage, deed of trust,
assignment or other instrument or agreement securing any
obligations of the Borrower hereunder or under any note; or
(j) The Borrower shall liquidate, dissolve, terminate or suspend
its business operations or otherwise fail to operate its
business in the ordinary course, or sell all or substantially
all of its assets, without the prior written consent of the
Lender; or
(k) The Borrower shall fail to pay, withhold, collect or remit any
tax or tax deficiency when assessed or due (other than any tax
deficiency which is being contested in good faith and by proper
proceedings and for which it shall have set aside on its books
adequate reserves therefor) or notice of any state or federal
tax liens shall be filed or issued; or
(l) Default in the payment of any amount owed by the Borrower to
the Lender other than any indebtedness arising hereunder.
28
Section 8.2 Rights and Remedies. Upon the occurrence of an Event of
-------------------
Default or at any time thereafter, the Lender may exercise any or all of the
following rights and remedies:
(a) The Lender may, by notice to the Borrower, declare the Credit
Facility to be terminated, whereupon the same shall forthwith
terminate;
(b) The Lender may, by notice to the Borrower, declare to be
forthwith due and payable the entire unpaid principal amount of
the Note then outstanding, all interest accrued and unpaid
thereon, all amounts payable under this Agreement and any other
Obligations, whereupon the Note, all such accrued interest and
all such amounts and Obligations shall become and be forthwith
due and payable, without presentment, notice of dishonor,
protest or further notice of any kind, all of which are hereby
expressly waived by the Borrower;
(c) The Lender may, without notice to the Borrower and without
further action, apply any and all money owing by the Lender to
the Borrower to the payment of the Advances, including interest
accrued thereon, and of all other sums then owing by the
Borrower hereunder;
(d) The Lender may, exercise and enforce any and all rights and
remedies available upon default to a secured party under the
UCC, including, without limitation, the right to take
possession of Collateral, or any evidence thereof, proceeding
without judicial process or by judicial process (without a
prior hearing or notice thereof, which the Borrower hereby
expressly waives) and the right to sell, lease or otherwise
dispose of any or all of the Collateral, and, in connection
therewith, the Borrower will on demand assemble the Collateral
and make it available to the Lender at a place to be designated
by the Lender which is reasonably convenient to both parties;
(e) the Lender may exercise and enforce its rights and remedies
under the Loan Documents; and
(f) the Lender may exercise any other rights and remedies available
to it by law or agreement.
Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in Section 8.1(e) hereof, the entire unpaid principal amount of the
Note, all interest accrued and unpaid thereon, all other amounts payable
under this Agreement (including amounts to be deposited pursuant to Section
8.2(c)), and any other Obligations shall be immediately due and payable
automatically without presentment, demand, protest or notice of any kind.
Section 8.3 Certain Notices. If notice to the Borrower of any intended
---------------
disposition of Collateral or any other intended action is required by law in
a particular instance, such notice shall be deemed commercially reasonable if
29
given (in the manner specified in Section 9.3) at least ten calendar days
prior to the date of intended disposition or other action.
ARTICLE IX
Miscellaneous
-------------
Section 9.1 No Waiver; Cumulative Remedies. No failure or delay on the
------------------------------
part of the Lender in exercising any right, power or remedy under the Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under
the Loan Documents. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law.
Section 9.2 Amendments, Etc. No amendment, modification, termination
---------------
or waiver of any provision of any Loan Document or consent to any departure
by the Borrower therefrom or any release of a Security Interest shall be
effective unless the same shall be in writing and signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further
notice or demand in similar or other circumstances.
Section 9.3 Addresses for Notices, Etc. Except as otherwise expressly
provided herein, all notices, requests, demands and other communications
provided for under the Loan Documents shall be in writing and shall be (a)
personally delivered, (b) sent by first class United States mail, (c) sent by
overnight courier of national reputation, or (d) transmitted by telecopy, in
each case addressed to the party to whom notice is being given at its address
as set forth below and, if telecopied, transmitted to that party at its
telecopier number set forth below:
If to the Borrower:
Service Business Systems, Inc.
11415 West X-00 Xxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
30
If to the Lender:
Norwest Business Credit, Inc.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxx
or, as to each party, at such other address or telecopier number as may
hereafter be designated by such party in a written notice to the other party
complying as to delivery with the terms of this Section. All such notices,
requests, demands and other communications shall be deemed to have been given
on (a) the date received if personally delivered, (b) when deposited in the
mail if delivered by mail, (c) the date sent if sent by overnight courier, or
(d) the date of transmission if delivered by telecopy, except that notices or
requests to the Lender pursuant to any of the provisions of Article II hereof
shall not be effective until received by the Lender.
Section 9.4 Financing Statement. A carbon, photographic or other
-------------------
reproduction of this Agreement or of any financing statements signed by the
Borrower is sufficient as a financing statement and may be filed as a
financing statement in any state to perfect the security interests
granted hereby. For this purpose, the following information is set forth:
Name and address of Debtor:
Service Business Systems, Inc.
00000 Xxxx X-00 Xxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Federal Tax Identification No. 00-0000000
Name and address of Secured Party:
Norwest Business Credit, Inc.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Section 9.5 Further Documents. The Borrower will from time to time
-----------------
execute and deliver or endorse any and all instruments, documents,
conveyances, assignments, security agreements, financing statements and other
agreements and writings that the Lender may reasonably request in order to
secure, protect, perfect or enforce the Security Interests or the rights of
the Lender under this Agreement (but any failure to request or assure that
the Borrower executes, delivers or endorses any such item shall not affect or
impair the validity, sufficiency or enforceability of this Agreement and the
Security Interests, regardless of whether any such item was or was not
executed, delivered or endorsed in a similar context or on a prior occasion).
31
Section 9.6 Collateral. This Agreement does not contemplate a sale of
----------
accounts, contract rights or chattel paper, and, as provided by law, the
Borrower is entitled to any surplus and shall remain liable for any
deficiency. The Lender's duty of care with respect to Collateral in its
possession (as imposed by law) shall be deemed fulfilled if it exercises
reasonable care in physically keeping such Collateral, or in the case of
Collateral in the custody or possession of a bailee or other third person,
exercises reasonable care in the selection of the bailee or other third
person, and the Lender need not otherwise preserve, protect, insure or care
for any Collateral. The Lender shall not be obligated to preserve any rights
the Borrower may have against prior parties, to realize on the Collateral at
all or in any particular manner or order or to apply any cash proceeds of the
Collateral in any particular order of application.
Section 9.7 Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses, including (without limitation) attorneys' fees,
reasonably incurred by the Lender in connection with the Obligations, this
Agreement, the Loan Documents and any other document or agreement related
hereto or thereto, and the transactions contemplated hereby, including without
limitation all such costs, expenses and fees incurred in connection with the
negotiation, preparation, execution, amendment, administration, performance,
collection and enforcement of the Obligations and all such documents and
agreements and the creation, perfection, protection, satisfaction,
foreclosure or enforcement of the Security Interests.
Section 9.8 Indemnity. In addition to the payment of expenses pursuant
---------
to Section 9.7 hereof and the environmental indemnity pursuant to Section 6.4
hereof, the Borrower agrees to indemnify, defend and hold harmless the
Lender, and any of its participants, parent corporations, subsidiary
corporations, affiliated corporations, successor corporations, and all
present and future officers, directors, employees and agents of the foregoing
(the "Indemnitees"), from and against (i) any and all transfer taxes,
documentary taxes, assessments or charges made by any governmental authority
by reason of the execution and delivery of this Agreement and the other Loan
Documents or the making of the Advances, and (ii) any and all liabilities,
losses, damages, penalties, judgments, suits, claims, costs and expenses of
any kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of counsel) in connection with any investigative,
administrative or judicial proceedings, whether or not such Indemnitee shall
be designated a party thereto, which may be imposed on, incurred by or
asserted against such Indemnitee, in any manner relating to or arising out of
or in connection with the making of the Advances, this Agreement and all
other Loan Documents or the use or intended use of the proceeds of the
Advances (the "Indemnified Liabilities"). If any investigative, judicial or
administrative proceeding arising from any of the foregoing is brought
against any Indemnitee, upon request of such Indemnitee, the Borrower, or
counsel designated by the Borrower and satisfactory to the Indemnitee, will
resist and defend such action, suit or proceeding to the extent and in the
manner directed by the Indemnitee, at the Borrower's sole cost and expense.
Each Indemnitee will use its best efforts to cooperate in the defense of any
such action, suit or proceeding. If the foregoing undertaking to indemnify,
defend and hold harmless may be held to be unenforceable because it violates
any law or public policy, the Borrower shall nevertheless make the maximum
contribution to the payment and satisfaction of each of the Indemnified
32
Liabilities which is permissible under applicable law. The obligation of the
Borrower under this Section 9.8 shall survive the termination of this
Agreement and the discharge of the Borrower's other Obligations.
Section 9.9 Participants. The Lender and its participants, if any, are
------------
not partners or joint venturers, and the Lender shall not have any liability
or responsibility for any obligation, act or omission of any of its
participants. All rights and powers specifically conferred upon the Lender
may be transferred or delegated to any of the participants, successors or
assigns of the Lender.
Section 9.10 Execution in Counterparts. This Agreement and other Loan
-------------------------
Documents may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same
instrument.
Section 9.11 Binding Effect; Assignment; Complete Agreement. The Loan
----------------------------------------------
Documents shall be binding upon and inure to the benefit of the Borrower and
the Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights thereunder or any
interest therein without the prior written consent of the Lender. This
Agreement, together with the Loan Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter
hereof.
Section 9.12 Governing Law; Jurisdiction, Venue; Waiver of Jury Trial.
--------------------------------------------------------
The Loan Documents shall be governed by and construed in accordance with the
substantive laws (other than conflict laws) of the State of Colorado. Each
party consents to the personal jurisdiction of the state and federal courts
located in the State of Colorado in connection with any controversy related
to this Agreement, waives any argument that venue in any such forum is not
convenient and agrees that any litigation initiated by any of them in
connection with this Agreement shall be venued in either the District Court
of the City and County of Denver, Colorado, or the United States District
Court, District of Colorado. The parties waive any right to trial by jury
in any action or proceeding based on or pertaining to this Agreement.
Section 9.13 Severability of Provisions. Any provision of this
--------------------------
Agreement which is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof.
Section 9.14 Headings. Article and Section headings in this Agreement
--------
are included herein for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
SERVICE BUSINESS SYSTEMS, INC.
BY(Signature) /s/Xxxxxx X. Xxxxxxxx
(Name and Title) Xxxxxx X. Xxxxxxxx,
President and CEO
NORWEST BUSINESS CREDIT, INC.
BY(Signature) /s/Xxxx Xxxxxxxx
(Name and Title) Xxxx Xxxxxxxx,
Vice President
34
Exhibit A to Credit and Security Agreement
REVOLVING NOTE
$500,000 Denver, Colorado
January 3, 1997
For value received, the undersigned, Service Business Systems, Inc., a
Colorado corporation (the "Borrower"), hereby promises to pay on December 31,
1998 to the order of Norwest Business Credit, Inc., a Minnesota corporation
(the "Lender"), at its main office in Minneapolis, Minnesota, or at any other
place designated at any time by the holder hereof, in lawful money of the
United States of America and in immediately available funds, the principal
sum of Five Hundred Thousand and No/100 Dollars ($500,000) or, if less, the
aggregate unpaid principal amount of all advances made by the Lender to the
Borrower hereunder, together with interest on the principal amount hereunder
remaining unpaid from time to time, 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 Credit
and Security Agreement of even date herewith (the "Credit Agreement") by and
between the Lender and the Borrower. The principal hereof and interest
accruing thereon shall be due and payable as provided in the Credit
Agreement. This Note may be prepaid only in accordance with the Credit
Agreement.
This Note is issued pursuant, and is subject, to the Credit Agreement,
which provides, among other things, for acceleration hereof. This Note is
the Note referred to in the Credit Agreement.
This Note is secured, among other things, pursuant to the Credit
Agreement and the Security Documents as therein defined, 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
attorneys' fees and legal expenses in the event this Note is not paid when
due, whether or not legal proceedings are commenced.
Presentment or other demand for payment, notice of dishonor and
protest are expressly waived.
SERVICE BUSINESS SYSTEMS, INC.
BY(Signature) /s/
(Name and Title)
35
Exhibit B to Credit and Security Agreement
Names
-----
Service Business Systems, Inc.
Service Business Systems of Colorado, Inc.
Chief Executive Office/Principal Place of Business
--------------------------------------------------
11415 West X-00 Xxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxx 00000
Other Locations
---------------
Creative Business
0000 X. Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
BEI Graphics
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
American Stamping
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Precision Graphics
0000 X. Xxxxxx Xxxxx Xxxxx
Xxxxxx, XX 00000
National Self Storage
0000 Xxxxx X-00 Xxxxxxxx Xxxx
Xxxxxx, XX 00000
Subsidiaries
------------
None
36
Exhibit C to Credit and Security Agreement
Permitted Liens, Indebtedness and Guaranties
--------------------------------------------
SEE ATTACHED
1
Exhibit D to Credit and Security Agreement
Compliance Certificate
----------------------
In accordance with our Credit and Security Agreement dated as of January
3, 1997 (the "Credit Agreement"), attached are the financial statements of
_________________ (the "Borrower") as of and for the month and year-to-date
period ended ______________ __, 199_ (the"Current Financials").
I certify that the Current Financials have been prepared in accordance
with generally accepted accounting principles applied on a basis consistent
with the accounting practices reflected in the financial statements referred
to in Section 5.5 of the Credit Agreement, subject to year-end audit
adjustments.
Defaults and Events of Default (check one)
------------------------------------------
I have no knowledge of the occurrence of any Default or Event of
Default under the Credit Agreement which has not previously been
reported to you and remedied.
Attached is a detailed description of all Defaults and Events of
Default of which I have knowledge and which have not previously
been reported to you and remedied.
For the date and periods covered by the Current Financials, the Borrower
is in compliance with the covenants set forth in Sections 6.12 through 6.14
and 7.10 of the Credit Agreement, except as indicated below. The
calculations made to determine compliance are as follows:
Covenant Actual Requirement
-------- ------ -----------
6.12) (Maximum Loss)
6.13) (Earnings)
7.10) (Capital Expenditures)
BY(Signature) /s/
(Name and Title) Chief Financial Officer of
Service Business Systems, Inc.
1
Exhibit E to Credit and Security Agreement
Premises
--------
The Premises referred to in the Credit and Security Agreement are
described as follows:
00000 Xxxx X-00 Xxxxxxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX 00000
1
