EXHIBIT-10.16
SMALL BUSINESS LOAN FUND CORPORATION
LOAN AGREEMENT
This Loan Agreement is entered into by and among SMALL BUSINESS LOAN FUND
CORPORATION, a governmental agency and public instrumentality of the State of
Rhode Island having a principal place of business located at Xxx Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (the "Lender"), and NETWORK SIX, INC., a
Rhode Island Corporation having its chief executive office at 000 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000 (the "Borrower") in connection with
Borrower's Two Hundred Fifty Thousand Dollar ($250,000.00) loan (the "Loan")
from Lender of even date herewith.
Section 1. Recitals.
1.1 Borrower has this day executed and delivered to Lender a Promissory
Note in the original principal amount of Two Hundred Fifty Thousand Dollars
($250,000.00) evidencing the Loan (the "Note");
1.2 The Note is secured or supported, inter alia, by:
(a) a Security Agreement of even date herewith between Borrower and
Lender with respect to the personal property described therein (the
"Security Agreement")
the Note and all such other documents being sometimes hereinafter collectively
referred to as the "Loan Documents".
Section 2. Agreement
Borrower and Lender make this Agreement in order to provide financing for
the purposes described in Section 4.1 hereof, and Lender agrees to make the Loan
upon and subject to all the terms and conditions set forth herein and in the
Loan Documents.
Section 3. Representations and Warranties
Borrower hereby represents and warrants to Lender, which representations
and warranties shall survive the making of the Loan:
3.1 That Borrower (if Borrower is a corporation) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Rhode Island and has all requisite power and authority to own all of its
properties and assets and to carry on its business as it is now being conducted
and has full power and authority to place mortgages and liens upon its assets
subject to the liens referenced in Exhibit A which is attached hereto and
incorporated herein by reference ("Senior Liens") and to borrow funds secured
thereby;
3.2 That Borrower is duly qualified and/or registered to do business and
in good standing in all jurisdictions where such qualifications or registration
is required, including, without limitation, the State of Rhode Island, if the
state of Borrower's incorporation or creation is other than Rhode Island;
3.3 That the execution and delivery of the Loan Documents to which
Borrower is a signatory and the consummation of the transactions contemplated
thereby do not violate any provisions of Borrower's Articles of Incorporation,
bylaws, or partnership agreement, as the case may be, or any provision of, or
result in the acceleration of any obligation of Borrower under, any deed of
trust or mortgage, lien, lease, agreement, instrument, arbitration award,
judgment or decree to which Borrower is a party or by which Borrower is bound,
and with respect to which Borrower has not obtained a written waiver, and do not
violate or conflict with any other restriction of any kind or character to which
Borrower is subject;
3.4 That the Loan is being made to Borrower in furtherance of legitimate
purposes of Borrower and all actions required by law, by Borrower's Articles of
Incorporation, bylaws, partnership agreement or otherwise, to authorize
execution and delivery of the Loan Documents to which Borrower is a signatory or
signatories thereof on behalf of Borrower have been taken, and that such Loan
Documents constitute the valid and binding obligations of Borrower, enforceable
in accordance with their respective terms.
3.5 That there are no actions, suits or proceedings pending or, to the
knowledge of Borrower, threatened against or affecting Borrower, or the
properties or other assets of Borrower before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which if determined adversely to Borrower would have a material adverse
effect on the financial condition, properties or operations of Borrower other
than as heretofore disclosed to the Lender;
3.6 That neither Borrower nor any corporation, partnership, or other legal
entity in which Borrower is a principal is now in default of any of their
obligations and agreements, and no condition exists, which, with the passage of
time or giving of notice or both, would constitute such a default, other than as
heretofore disclosed to the Lender.
Section 4. Covenants and Agreements
4.1 The proceeds of the Loan shall be used solely for hire additional
highly trained network specialists (4-6) to expand current marketing efforts and
modify computer programs to accommodate year 2000 and that Borrower shall, if
requested by Lender, provide to Lender documentation in form reasonably
satisfactory to Lender showing that the proceeds of the Loan were so used.
4.2 Borrower shall maintain or cause to be maintained hazard, liability
and other insurance policies as required by the Loan Documents.
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4.3 Borrower shall deliver to Lender within ninety (90) days of the close
of Borrower's fiscal year, the consolidated and consolidating financial
statements of Borrower, including, without limitation, a balance sheet and
income statement, prepared on a review basis by a firm of independent public
accountants selected by Borrower and approved by Lender. Borrower shall also
deliver to Lender (i) within forty five (45) days of the close of each of
Borrower's fiscal quarters, financial statements including, without limitation,
a balance statement, and income statement certified to by Borrower's president
or chief financial officer for the fiscal year to date; (ii) such other
information bearing on the financial condition of Borrower and its business
operations as Lender may reasonably request; and (iii) annual employment reports
in form satisfactory to Lender detailing the number of employees of Borrower,
the change in such number over the course of the applicable year and the average
wages of such employees.
4.4 Borrower shall cause to be provided to Lender such financial
information with respect to any person now or hereafter liable absolutely or
contingently, for the whole or part of the indebtedness evidenced by the Note
(an "Other Liable Party") including, without limitation, any guarantor(s)
thereof, as Lender shall reasonably request, including, without limitation, the
information required of Borrower by Section 4.3 above.
4.5 Borrower shall maintain its principal office and operating facilities
within the State of Rhode Island.
4.6 Borrower shall maintain at its principal operating facilities located
at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000, all assets utilized in
connection with the operation of its business, except as specifically permitted
by an instrument in writing executed by Lender or except in the ordinary course
of business.
4.7 The Loan Documents shall be duly executed or shall be caused to be
duly executed by the Borrower and every Other Liable Party, together with such
additional supporting documents as Lender or its counsel may now or hereafter
request.
4.8 Borrower will promptly notify Lender of any condition or event which
constitutes, or would constitute with the passage of time or giving of notice or
both, an Event of Default under the Note or any of the other Loan Documents, and
promptly inform Lender of any events or changes in the financial condition of
Borrower or any Other Liable Party occurring since the date of the last
financial statements of Borrower or such Other Liable Party delivered to Lender,
which individually or cumulatively when viewed in light of prior financial
statements of Borrower or such Other Liable Party delivered to Lender, may
result in a material adverse change in the financial condition of Borrower or
such Other Liable Party.
4.9 Borrower shall, annually before January 31, provide the Lender an
employment report compassing states goals with results obtained.
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4.10 The Borrower shall not, without prior written consent of the Lender,
sell the Borrower or substantially all of the assets thereof.
4.11 The Borrower shall not, without the prior written consent of the
Lender, move or transfer any of the Borrower's business or its assets out of the
State of Rhode Island unless in the ordinary course of business.
Section 5. Additional Representations, Warranties and Covenants of Borrower
5.1 The Borrower is now in compliance with, and will at all times comply
with (i) Title VI of the Civil Rights Act of 1964, as amended; and (ii) R.I.G.L.
ss.28-6.1-1, as amended;
5.2 Borrower is now in compliance with, and will at all times comply with
all applicable federal, state and local laws, regulations and ordinances
relating to environmental matters, hazardous waste and hazardous materials of
any kind and will obtain all necessary permits and certificates for all
environmental requirements.
5.3 That the Loan will not result, directly or indirectly, in the
permanent relocation of jobs from one labor area to another.
5.4 Borrower shall obtain Flood Hazard Insurance when reasonably required
by Lender or by applicable law.
5.5 Borrower will insure access for the handicapped if the project
financed in whole or in part by the Loan involves construction with respect to
facilities to which the public will have access.
5.6 Borrower will whenever possible, and in good faith, give consideration
for employment to the long-term underemployed and unemployed residing in the
Rhode Island area for any qualified Rhode Island positions.
5.7 Borrower shall undertake Affirmative Action Programs designed to
eliminate patterns and practices of discrimination.
5.8 Borrower further covenants and agrees that if requested by Lender,
Borrower will present evidence of Borrower's compliance with any of the
provisions of this Section 5.
Section 6. Miscellaneous
6.1 The law governing this Agreement shall be the substantive law of Rhode
Island determined without resort to the state's conflict of law rules.
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6.2 All rights of Lender hereunder shall inure to the benefit of its
successors and assigns, and all obligations of Borrower hereunder shall bind
its, his, her or their successors and assigns.
6.3 Lender shall not be deemed to have waived or amended any of its rights
or remedies under any of the Loan Documents except by written instrument duly
executed by a duly authorized officer of Lender.
IN WITNESS WHEREOF, the Borrower and Lender have executed this Agreement
or caused this Agreement to be executed by their duly authorized representatives
on this 21st day of September, 1998.
WITNESS: LENDER:
SMALL BUSINESS LOAN FUND
CORPORATION
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
--------------------------- ----------------------------
Its: Administrator
BORROWER:
NETWORK SIX, INC.
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ----------------------------
Its: Treasurer
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EXHIBIT A
Senior Liens shall include:
1. Any and all liens resulting from a loan agreement entered into between
PrinVest Financial Corp., a New Jersey corporation, and the Borrower hereof
dated December 31, 1997 any successor bank or institutional lender for financing
to be used by the Borrower in conjunction with its day to day business
operations, which financing is or may be secured by Borrower's grant of a first
position security interest in all accounts receivable and work in progress of
the Borrower.
2. Any and all equipment leases presently existing and any other equipment
leases entered into by the Borrower after the date hereof.
3. An assignment of certain litigation proceeds by Borrower to Xxxxxxxx
Xxxxxx IMS Corporation dated December 24, 1997.
4. A financing arrangement between the Borrower and Xxxxxx Xxxxxxxxxxx
relating to a contract between Borrower and the State of Maine dated April 11,
997 which is identified as the "Maine Automated Child Welfare Information System
Contract" and evidenced by financing statement 665667 and 665719 filed with the
Rhode Island Secretary of State.
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SMALL BUSINESS LOAN FUND CORPORATION
PROMISSORY NOTE
$250,000.00 September 21, 1998
Providence, Rhode Island
FOR VALUE RECEIVED, NETWORK SIX, INC., a Rhode Island corporation, having
a principal place of business located at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
Xxxxxx 00000 (hereinafter referred to as "Maker"), jointly and severally, if
more than one, promises to pay to the order of SMALL BUSINESS LOAN FUND
CORPORATION, a governmental agency and public instrumentality of the State of
Rhode Island having a principal place of business located at Xxx Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (hereinafter referred to as "Payee"), the
principal sum of Two Hundred Fifty Thousand Dollars ($250,000.00), payable at
the times hereinafter specified, together with interest, in arrears, from the
date hereof on the unpaid principal balance from time to time outstanding and on
all unpaid installments of interest, whether before or after the maturity of or
default under this note, at the rate of nine and one half percent (9.50%) per
annum.
All interest payable hereunder shall be computed on the basis of the
actual number of days elapsed using a three hundred sixty (360) day year.
Principal and interest hereunder shall be payable in 59 consecutive equal
monthly installments of $5,250.47 each, commencing on the 21st day of October,
1998 and continuing on the same day of each month thereafter through and
including the 21st day of August, 2003, and in one (1) final installment of the
entire unpaid balance of principal and interest on the 21st day of September,
2003.
The entire principal balance, together with all unpaid interest, fees,
expenses and other charges, if not sooner paid, shall in any event be paid on
September 21, 2003.
All sums payable hereunder are payable in lawful money of the United
States of America and in immediately available funds at the above stated office
of Payee or such other place or places as Payee, its successors or assigns
(hereinafter sometimes the "Holder") may designate in writing.
This note may be prepaid at any time, in whole or in part, without penalty
or premium, provided that Maker gives to the Holder not less than ten (10) days
prior written notice thereof. All such partial payments, if applied to principal
pursuant to the terms of this Note, shall be applied against installments of
principal in the inverse order of their maturity.
All sums paid under this note shall be applied first to any interest,
fees, expenses and other charges then due and unpaid, in such order as the
Holder shall determine, with the remaining balance, if any, to be applied to
unpaid principal.
Whenever a day on which payment of interest and/or principal required to
be made hereunder falls on a Saturday, Sunday or public holiday, such payment
shall be due on the next following normal business day, and where time is
extended for the payment of principal by virtue of the due date thereof falling
on a Saturday, Sunday or public holiday, such extended time shall be included in
the computation of interest.
This note is referred to in a certain Loan Agreement (the "Agreement")
between Maker and Payee of even date herewith and is in all respects subject to
the provisions thereof.
This note is secured or supported by inter alia (check appropriate box or
boxes)
|X| a Security Agreement between Maker and Payee of even date herewith,
granting a security interest in personal property described therein;
all of which documents, agreements and instruments listed above are
hereinafter collectively referred to as the "Security Instruments".
Payee and any successor Holder may assign, transfer or negotiate this note
and any security for the performance of Maker's obligations hereunder, and in
such event all the provisions of this note and the Security Instruments shall
inure to the benefit of and may be exercised by or on behalf of the successor
Holder, and all payments of principal and of interest due and to become due
under this note after the date of such assignment shall not thereafter be
subject to any defense, counterclaim or set-off which Maker may have against any
prior Holder.
The occurrence of any one or more of the following events will constitute
an Event of Default hereunder:
1. Nonpayment of any installment of principal and/or interest due under
this note when it shall become due and payable (no prior demand therefor being
necessary) and such nonpayment shall have continued for more than ten (10) days.
2. Nonpayment of any other sum payable under the Agreement, this note, any
of the Security Instruments or any other documents, instruments or agreements
("Other Documents") now or hereafter securing this note or executed by Maker or
any other person, corporation or other entity now or hereafter liable,
absolutely or contingently, for the whole or any part of the indebtedness
evidenced by this note, including, without limitation, any guarantor(s) hereof
(an "Other Liable Party") in
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connection herewith, and such nonpayment shall have continued for more than ten
(10) days after written notice thereof by Holder to Maker.
3. Nonperformance or nonobservance of any of the other covenants,
agreements, or conditions of the Agreement, any of the Security Instruments or
any of the Other Documents after the expiration of applicable grace periods, if
any, and such nonperformance or nonobservance shall have continued for more than
thirty (30) days after written notice thereof by Holder to Maker.
4. The occurrence of any "Event of Default" under the Agreement, any of
the Security Instruments or any of the Other Documents, or the occurrence of any
event or condition which would entitle Holder to exercise any of its remedies
under the Agreement, any of the Security Instruments or any of the Other
Documents.
5. The cancellation, lapse or termination of any insurance coverage
required to be maintained by Maker under the Agreement, any of the Security
Instruments or any of the Other Documents which is not reinstated or replaced
during applicable grace periods.
6. Any real or personal property, mortgaged, pledged or otherwise given to
secure this note or any portion thereof or any interest therein is conveyed,
voluntarily encumbered or otherwise transferred in any way without the prior
written consent of Holder, except as may be specifically provided or described
in the Agreement or the Security Instruments.
7. Breach of or the proving false or misleading, in any material respect,
of any representation or warranty now or hereafter made to any Holder by, on
behalf of, or for the benefit of Maker, or contained in:
(a) the Agreement;
(b) any of the Security Instruments or Other Documents;
(c) this note; or
(d) any loan application, statement, financial statement, certificate or
other document, agreement or instrument furnished, signed or executed in
connection herewith by the Maker or, on behalf of or for the benefit of the
Maker at the request of Maker.
8. The occurrence of any "event of default" under any document, agreement
or instrument now or hereafter (a) evidencing or securing any other obligation
or indebtedness of Maker or any Other Liable Party, to Holder now existing or
hereafter arising or (b) evidencing any obligation or other indebtedness secured
in whole or in part by any or all of the real or personal property covered by
any of the Security Instruments, or the nonpayment, nonperformance or
nonobservance of any of the covenants,
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agreements or conditions of any such documents, agreements or instruments, which
nonpayment, nonperformance or nonobservance shall have continued beyond the
expiration of any applicable grace or notice period and the occurrence of any
event or condition which would entitle the obligee of or under any such
documents, agreements or instruments to exercise any of its default remedies
thereunder.
9. Nonpayment of any indebtedness in excess of Fifty Thousand Dollars
($50,000.00) of the Maker or any Other Liable Party (other than this note or the
other indebtedness referred to in the preceding paragraph) if the effect of such
nonpayment is to accelerate the maturity of such indebtedness or to permit the
holder thereof to cause such indebtedness to become due prior to the stated
maturity thereof.
10. (a) (i) The insolvency or inability of Maker or any Other Liable Party
to pay his or its debts as they mature; (ii) the appointment of a receiver,
trustee, custodian or other fiduciary for, or for any of the property of, Maker
or any Other Liable Party; (iii) the making of an assignment for the benefit of
creditors, or the making of or entering into a trust mortgage or deed or other
instrument of similar import for the benefit of creditors, by Maker or any Other
Liable Party; or (iv) the convening of a meeting of the creditors, or the
selection of a committee representing the creditors of Maker or any Other Liable
Party; or
(b) The filing by Maker or any Other Liable Party of a petition,
complaint, motion or other pleading seeking any relief under any receivership,
insolvency, or debtor relief law, or seeking any readjustment of indebtedness,
reorganization, composition, extension or any similar type of relief, or the
filing of a petition, complaint, or motion under any chapter of the federal
bankruptcy code, 11 U.S.C. ss.101 et seq., as the same now exists or may
hereafter by amended (the "Bankruptcy Code"); or
(c) The filing against Maker or any Other Liable Party of a petition,
complaint, motion or other pleading seeking any relief under any receivership,
insolvency, or debtor relief law, or under any chapter of the Bankruptcy Code,
or seeking any readjustment of indebtedness, reorganization, composition,
extension or any similar type of relief, or the entry of any order for relief
under any chapter of the Bankruptcy Code; provided, however, that if Maker shall
immediately notify Holder in writing of the filing of any such petition,
complaint, motion or other pleading against Maker or, any Other Liable Party,
and shall provide evidence satisfactory to Holder that Maker or such Other
Liable Party, as the case may be, has in good faith and within ten (10) days
after the filing of any such petition, complaint, motion or other pleading filed
an answer thereto contesting same, then there shall be no Event of Default under
this subparagraph (c) until the earliest of (i) the entry of an order for relief
or a judgment under any proceedings referred to in this subparagraph (c), (ii)
the appointment of a receiver, trustee, custodian or other fiduciary in any such
proceeding, or (iii) the expiration of a period of thirty (30) days, at the end
of which such petition, complaint, motion or other pleading remains undismissed;
or
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(d) The entry of any judgment in excess of Fifty Thousand Dollars
($50,000.00) against, or the attachment or garnishment of any of the property,
goods or credits of Maker or any Other Liable Party which remains unpaid,
unstayed, undismissed or unbonded for a period of sixty (60) days (excluding any
judgment in the Hawaii litigation); or if any foreclosure is commenced (by
judicial proceedings, by publication of notice pursuant to a power of sale or
otherwise) against Maker under any mortgage, deed of trust or security agreement
granted by Maker and is not dismissed or terminated within thirty (30) days
after such commencement.
11. The dissolution, liquidation or termination of existence of Maker or
any Other Liable Party or a sale of all or substantially all of the assets of
Maker or any Other Liable Party out of the ordinary course of business.
12. Any material adverse change in the financial condition of, or any act
or omission of Maker or any Other Liable Party, which leads Holder reasonably to
believe that performance of any of the covenants, agreements, or conditions of
the Loan Agreement, this note, the Security Instruments or any Other Document,
is or may be substantially impaired.
13. If Maker fails to notify Holder in writing within ten (10) days of the
occurrence of any event or condition of which Maker is aware which constitutes
an Event of Default, or which with the passage of time or giving of notice or
both would constitute an Event of Default, and together with such notice,
furnish a written statement to Holder which shall set forth the details of any
action Maker proposes to take with respect thereto.
14. If Maker is a corporation, the merger or consolidation with any
corporation by Maker, without the written consent of the Holder.
Upon the occurrence of any Event of Default, this note, at the option of
the Holder, shall become immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by Maker and by every Other Liable Party. The Holder's failure to exercise such
option shall not constitute a waiver of the right to exercise it at any other
time. Irrespective of the exercise or nonexercise of the foregoing option, in
the event that any payment herein provided for shall become overdue for more
than five (5) days a "late charge" of five percent (5%) of the overdue payment
shall become immediately due and payable to the Holder as liquidated damages for
failure to make prompt payment, and the same shall be secured by the Security
Instruments.
No renewal or extension granted, or any indulgence shown to, or any
release of, or any dealings between the Holder and any other person,
corporation, or entity now or hereafter interested in this note or in the
property securing this note, whether as owner, encumbrancer, grantor, or
otherwise, shall discharge, extend or in any way affect the obligations of Maker
or any Other Liable Party hereunder.
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Maker shall remain primarily liable on this note and the Security
Instruments given to secure the same until full payment, unaffected by any
alienation of all or any part of the property securing this note, by any
agreement or transaction between any Holder and any alienee as to payment of
principal, interest or other monies, by any forbearance or extension of time,
guaranty or assumption by others, or by any other matter, as to all of which
notice is hereby waived by Maker.
Maker will pay the reasonable legal and other fees and expenses of the
Holder reasonably incurred in connection with or incidental to (i) the
negotiation, closing and administration of the loan evidenced by this note, and
(ii) the enforcement of any of the obligations of Maker or any Other Liable
Party or rights of the Holder under this note, the Security Instruments or any
other agreement, document or instrument now or hereafter executed in connection
herewith, by litigation or otherwise; and all such fees and expenses shall be
indebtedness under this note and shall be secured by the Security Instruments.
All provisions of this note, the Agreement and the Security Instruments
are expressly subject to the condition that in no event, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to Payee hereunder and deemed
interest under applicable law exceed the maximum rate of interest on the unpaid
principal balance of this note allowed by applicable law (the "Maximum Allowable
Rate"), which shall mean the law in effect on the date of this note, except that
if there is a change in such law which results in a higher Maximum Allowable
Rate being applicable to this note, then this note shall be governed by such
amended law from and after its effective date. In the event that fulfillment of
any provision of this note, the Agreement or any of the Security Instruments
results in the interest rate hereunder being in excess of the Maximum Allowable
Rate, the obligation to be fulfilled shall automatically be reduced to eliminate
such excess. If, notwithstanding the foregoing, Payee or any successor Holder
receives an amount which under applicable law would cause the interest rate
hereunder to exceed the Maximum Allowable Rate, the portion thereof which would
excessive shall automatically be applied to and be deemed a prepayment of the
unpaid principal balance of this note and not a payment of interest.
All obligations of Maker hereunder are the joint and several obligations
of all persons or entities executing this note, and all references to Maker
herein shall be deemed to refer to all of them, each of them and any of them.
This note may not be modified or terminated orally.
This note has been executed and delivered in Rhode Island and for all
purposes shall be enforced and construed in accordance with the substantive law
of the State of Rhode Island, without resort to Rhode Island's conflict of laws
rules.
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IN WITNESS WHEREOF, Maker has executed this note or caused this note to be
executed by its duly authorized representatives, under seal, on the date first
written above.
Witnessed by: NETWORK SIX, INC.
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- -------------------------------
Treasurer
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SMALL BUSINESS LOAN FUND CORPORATION
SECURITY AGREEMENT
THIS AGREEMENT is made this 21st day of September, 1998, by and between
NETWORK SIX, INC., a Rhode Island corporation having its chief executive office
and principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx
00000 (hereinafter referred to as "Debtor"), and SMALL BUSINESS LOAN FUND
CORPORATION, a governmental agency and public instrumentality of the State of
Rhode Island having a principal place of business at Xxx Xxxx Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000 (hereinafter referred to as "Secured Party").
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
Section 1. Definitions
1.1 "Accounts Receivable" includes all accounts, contract rights, notes,
drafts, acceptances, and all forms of obligations and receivables now or
hereafter owed or belonging to Debtor for Inventory sold or for services
rendered, all guaranties and security therefor, all right, title and interest of
Debtor in the Inventory which gave rise thereto, including the right of stoppage
in transit, and all rights of the Debtor, earned or yet to be earned under
contracts to sell Inventory and/or other goods or to render services.
1.2 "Inventory" includes all inventory, including, all goods, merchandise,
raw materials, work in process, finished goods, supplies, materials used or
consumed in connection with the production thereof, and other tangible personal
property now owned or hereafter acquired by Debtor and held for sale or lease or
furnished or to be furnished under contracts of service or used or consumed in
the business of Debtor as well as contracts and contract rights with respect
thereto, documents representing the same, and the proceeds thereof.
1.3 "Equipment" includes all machinery, equipment, furniture and fixtures
now owned or hereafter acquired by Debtor and all spare and replacement parts
and tools therefore, (including, without limiting the generality of the
foregoing, all equipment listed on any schedule attached hereto).
1.4 "Intangible Property" includes all instruments, documents of title,
warehouse receipts, bills of lading, policies and certificates of insurance,
securities, chattel paper, deposits, cash, patents, trademarks, copyrights,
trade secrets, income tax refunds, proceeds of insurance, contract rights,
choses in action, books and records (wherever located and in whatever form they
are evidenced or stored), general intangibles and all other property now or
hereafter owned by Debtor or in which it may have an interest, including without
limitation, all of the Debtor's right, title and interest in and to any
litigation proceeds payable to Debtor from the State of Hawaii or
otherwise in connection with the Debtor's contract with the State of Hawaii for
the Development and Implementation of a Statewide Comprehensive Automated Child
Support System.
1.5 "Licenses" includes all municipal, state and federal licenses and
permits on which Debtor is named or in which Debtor has an interest.
1.6 "Senior Liens" include any and all liens listed on Exhibit A which is
attached hereto and incorporated herein by reference.
Section 2. Security Interest
2.1 Debtor hereby grants to Secured Party subject to all Senior Liens and
any equipment leases of the Debtor (" Equipment Leases"), a second position
security interest in, a general lien upon and a right of offset against all of
the following property (the "Collateral"), now owned or hereafter acquired by
Debtor:
|X| all Accounts Receivable;
check if |X| all Inventory;
applicable |X| all Equipment;
|X| all Intangible Property;
|X| all Licenses;
and any and all additions and accessions to and substitutions for and proceeds
(including, without limitation, insurance proceeds) and products of the
foregoing.
2.2 The security interest granted hereby is to secure payment and
performance of all Obligations at any time owing by Debtor to Secured Party. The
term "Obligations" as used in this Security Agreement means and includes all
loans, advances, debts, liabilities, obligationsand covenants owing by Debtor to
Secured Party of every kind and description (whether or not evidenced by any
note or other instrument and whether or not for the payment of money), direct or
indirect, (whether as principal debtor, guarantor, or otherwise), absolute or
contingent, due or to become due, now existing or hereafter arising, including,
without limitation, the payment of the promissory note (the "Note") of the
Debtor of even date herewith in the principal amount of Two Hundred Fifty
Thousand Dollars ($250,000.00), and the payment and performance by Debtor of all
additional obligations contained or referred to in the Note, in this Agreement,
or in any other document, instrument, or agreement securing the Note or the loan
evidenced thereby or executed in connection with the Note or the loan evidenced
thereby, any debt, liability or obligation owing from Debtor to others which
Secured Party may have obtained by assignment or otherwise, and further
including, without limitation, all interest, reasonable fees, charges,
attorneys' fees, court costs and expenses of whatever kind incident to the
collection of the Obligations and the enforcement and protection of the security
interest created hereby, all future advances and interest thereon made by
Secured Party for taxes, levies, insurance and repairs to or maintenance of the
Collateral, all other monies heretofore or hereafter advanced by Secured Party
to or for the account of Debtor at the option of the Secured Party, and all
other present or future
2
liabilities and indebtedness of Debtor to Secured Party of any nature
whatsoever, liquidated or unliquidated, absolute or contingent and any
extensions or renewals thereof.
Section 3. Representations and Warranties
Debtor represents and warrants as follows:
3.1 Debtor has the power and authority to own the Collateral, subject to
any and all Senior Liens, to enter into and perform this Agreement and any other
document, instrument or agreement delivered in connection herewith and to incur
the Obligations.
3.2 Debtor has not acquired any of the stock or assets of any other person
or entity nor been the surviving entity in a merger, except as follows:
Acquisitions:
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Mergers:
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3.3 Debtor utilizes no trade names in the conduct of its business, except
as follows:
Trade Names
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3.4 Debtor has filed all federal, state and local tax returns and other
reports it is required to file and has paid all taxes, assessments and other
governmental charges now due and payable.
Section 4. Representations, Warranties and Covenants
Debtor represents, warrants and covenants as follows:
4.1 Except for the security interest granted hereby, and except for Senior
Liens, Debtor has, and in the case of after-acquired Collateral, will have good
and marketable title to the Collateral free from any adverse lien, security
interest or encumbrance; and that Debtor will defend the Collateral against all
claims and demands of all persons at any time claiming the same or any interest
therein.
3
4.2 All warranties, representations, statements and other information
furnished to Secured Party by Debtor or on behalf of Debtor at the Debtor's
request, are and will be when the same are made or furnished by Debtor accurate
and complete in all material respects.
4.3 The chief executive office of Debtor is as stated above, and Debtor
will not change such chief executive office without thirty (30) days prior
written notice to Secured Party.
4.4 The Collateral is and will be kept at Debtor's address listed above,
and that Debtor will not remove any of the Collateral from said location without
the prior written consent of Secured Party, except Inventory, sold in the
ordinary course of business.
4.5 Except as indicated in Section 4.1 above, no financing statement, tax
lien or other lien, claim or encumbrance covering any of the Collateral or any
proceeds thereof is on file in any public office, and that at the request of
Secured Party, Debtor will join with Secured Party in executing one or more
financing statements pursuant to the Uniform Commercial Code in form
satisfactory to Secured Party and will pay the cost of filing the same in all
public offices wherever filing is deemed by Secured Party to be necessary or
desirable; and Debtor hereby irrevocably constitutes and appoints any officer of
Secured Party. Debtor's attorney-in-fact to execute and file in the name and on
behalf of Debtor such financing statement or statements in the event Debtor
refuses or fails to do so, provided that the Secured Party shall subordinate the
same to all Senior Liens.
4.6 Debtor will not sell, pledge, hypothecate, encumber, assign, or offer
to sell or otherwise transfer the Collateral or any interest therein after the
date hereof without the prior written consent of Secured Party, except in the
ordinary course of business, and except that the Debtor may at any time
refinance Senior Lien with PrinVest to obtain new financing as provided on
Exhibit A as a Senior Lien for which the Debtor may give a first priority
security interest Accounts Receivables and work in progess without the prior
written consent of Secured Party. A sale in the ordinary course of business does
not include, inter alia, a transfer in partial or total satisfaction of a debt.
Lender agrees to subordinate its interest in the accounts receivable and work in
progress to any such bank or institutional Lender.
4.7 Debtor shall maintain insurance at all times with respect to the
Collateral against loss by fire (including so-called extended coverage), theft,
and such other casualties as Secured Party may require in a sum not less than
the replacement cost of the Collateral, In addition Debtor will have and
maintain, in such form and with such companies and in such amounts as shall be
reasonably satisfactory to Secured Party, insurance against such other losses as
may be reasonably required by Secured Party or as are customarily maintained by
similar businesses operating in similar localities and under similar conditions
as Debtor, including by way of illustration and not of limitation, flood, public
liability, personal property, theft, workmens' compensation and collision
insurance. Each and every policy of insurance (except xxxxxxx'x compensation)
shall insure Secured Party's interest regardless of any breach or violation by
Debtor of any warranties, declarations or conditions contained in such policies.
All policies of such insurance shall be in such form as shall be
reasonably satisfactory to Secured Party, shall be made payable in case of loss
to Secured Party, shall provide that the same may not be altered or cancelled by
the insurer except after thirty (30) days prior written notice to
4
Secured Party, and such certificates as Secured Party may from time to time
request, shall be delivered to Secured Party, to be held as collateral security
for the Obligations. Debtor shall have free choice of agent and insurer through
or by which such insurance is to be placed or written provided said insurer is
authorized to write such insurance in the State in which the Collateral is
located, as a licensed resident agent in said state, and has, at all times while
this Agreement is in effect, a general policy-holder's rating of A or A+ in
Best's latest rating guide. If any proceeds under any insurance policies are
paid to Secured Party while any Obligations are outstanding, Secured Party
shall, unless Event of Default has occurred and is continuing, pay over such
proceeds to Debtor for the purpose of replacing the lost, damaged, or destroyed
Collateral with respect to which such proceeds are paid. Upon an Event of
Default, payment may be made to Debtor at the option of the Secured Party or
shall be applied to Debtor's Obligations. Upon Event of Default, Secured Party,
in its discretion, may act as attorney for Debtor in obtaining, adjusting,
settling, and cancelling such insurance. If Debtor fails to procure or maintain
such insurance, Secured Party shall have the right, but not the obligation, to
effect such insurance, in which event Debtor shall repay to Secured Party the
cost thereof immediately upon demand, and until repaid these amounts shall be
added to the unpaid principal balance of the Note, shall bear interest at rate
of interest set forth in the Note and together with such interest shall be
secured by this Agreement and by any other agreements securing the Note.
4.8 Except as indicated in Section 4.1 above, the Collateral is now in
good order and repair, and that Debtor will keep the Collateral in good order
and repair and free from any adverse lien, security interest and encumbrance
(except Senior Liens) and will not waste or destroy the Collateral or operate or
use the Collateral in violation of any statute or ordinance.
4.9 Debtor will pay promptly when due all taxes and assessments upon the
Collateral or for its use or operation or upon any note or notes evidencing the
Obligations.
4.10 Debtor will permit Secured Party, through its authorized attorneys,
accountants and representatives, to inspect and examine the Collateral and/or
books, accounts, records, ledgers and assets of every kind and description of
Debtor with respect to the Collateral at all reasonable times upon reasonable
notice, and to make copies and extracts from such books, accounts, records and
ledgers.
4.11 Debtor will, at all times and from time to time at the request of
Secured Party, do, make, and execute and deliver all such additional and further
acts, things, deeds, assurances and instruments as Secured Party reasonably
deems necessary or appropriate to more completely perfect or maintain perfected
its security interest in the Collateral subject to Senior Liens and/or to
otherwise further vest in and assure to Secured Party its rights hereunder and
in or to the Collateral and the proceeds and products thereof.
4.12 Debtor hereby authorizes Secured Party to file financing and
continuation statements with respect to the Collateral in accordance herewith
without the signature of Debtor whenever lawful.
5
4.13 If all or any portion of the Collateral is a motor vehicle or
vehicles otherwise subject to any certificate of title law, Debtor will cause
the interest of Secured Party to be noted thereon, and Secured Party, to the
extent permitted by law, shall hold the original Certificate of Title until
payment in full of the Obligations.
Section 5. Discharge of Liens
At its option, Secured Party may discharge taxes, liens, or security
interests or other encumbrances at any time levied or placed on the Collateral,
and may pay for the maintenance and preservation of the Collateral. Any payment
made or expense incurred by Secured Party pursuant to this provision shall be
repaid to Secured Party immediately upon demand and until repaid, these amounts
shall be added to the unpaid principal balance of the Note, shall bear interest
at the rate of interest set forth in the Note together with such interest shall
be secured by this Agreement and by any other documents, instruments or
agreements now or hereafter securing the Note.
Section 6. Possession by Debtor
Until the occurrence of an Event of Default hereunder, Debtor may have
possession of the Collateral and use it in any lawful manner not inconsistent
with (i) any policy of insurance thereon, (ii) this Agreement or (iii) the Loan
Agreement of even date herewith between Secured Party and Debtor.
Section 7. Events of Default
Debtor shall be in default under this Agreement upon the occurrence of any
of the following "Events of Default": 1. Default in the payment of any amounts
due under the Note, whether at the due date thereof after applicable grace
periods or by acceleration or otherwise, no prior demand therefor being
necessary, such non-payment having continued for ten (10) days; 2. Default in
the payment when due of any other Obligations, such Default continuing beyond
any applicable grace period, such Default having continued for ten (10) days
after written notice thereof by Secured Party to Debtor; 3. Nonperformance or
nonobservance of any of the covenants, agreements or conditions of this
Agreement, and such nonperformance or nonobservance shall have continued for
more than thirty (30) days after written notice except as otherwise provided
herein; ; 4. The proving false of any material representation or warranty
contained herein or in any other document, instrument or agreement now or
hereafter entered into between Debtor and Secured Party or given by or on behalf
of Debtor to Secured Party; 5. Substantial loss, theft, damage or destruction of
the Collateral not covered by insurance; or 6. The occurrence of an "Event of
Default" as defined in the Note.
Section 8. Remedies
Upon the occurrence of an Event of Default and at any time thereafter
Secured Party may while such default continues declare all Obligations secured
hereby immediately due and payable without presentment, demand, protest or other
notice of any kind, and all of which expressly
6
waived. Secured Party in addition to such other rights and remedies as are or
may be set forth in this Agreement or in any other document, agreement or
instrument between Debtor and Secured Party or in the Note, may exercise and
shall have the rights and remedies of a secured party under the Uniform
Commercial Code in effect in Rhode Island at the time of such default. Without
limiting the generality of the foregoing, Secured Party may require Debtor to
assemble the Collateral and make it available to Secured Party at a place
designated by Secured Party.
Secured Party will give Debtor notice of the time and place of any public
sale thereof or the time at which any private sale or any other intended
disposition thereof is to be made. The requirements of notice shall be met if
such notice is mailed, postage prepaid, to Debtor at its address set forth or
other address Debtor provides the Secured Party in writing above at least ten
(10) days before the time of the sale or disposition. Debtor shall pay to
Secured Party on demand any and all expenses including all reasonable attorneys'
fees and legal expenses incurred or paid by Secured Party in protecting or
enforcing its rights, powers and remedies hereunder or under any other document,
instrument or agreement between Debtor and Secured Party or the Note, or in any
way connected with any proceeding or action by whomsoever initiated concerning
the protection or enforcement of such rights, powers and remedies by Secured
Party.
Debtor understands and agrees that Secured Party may exercise its rights
hereunder without giving Debtor any opportunity for a hearing to be held before
Secured Party, through judicial process or otherwise, may take possession of the
Collateral upon the occurrence of an Event of Default and Debtor expressly
waives the right, if any, to such prior hearing.
Section 9. Accounts Receivable
Only upon the Event of Default and while such default continues, and
subject to all rights of Senior Liens in the Collateral:
9.1 If all or any portion of the Collateral is Accounts Receivable, Debtor
hereby irrevocably appoints Secured Party and any other person whom Secured
Party may from time to time designate, with full power and authority, acting in
its own name or in the name of the Debtor;
9.1.1 to endorse Debtor's name on any checks, notes, acceptances, money
orders, drafts or other forms of payment or security that may come into Secured
Party's possession; to sign Debtor's name on any invoice or xxxx of lading
relating to any Accounts Receivable, on drafts against customers; on schedules
and assignments of Accounts Receivable, on notice of assignment, financing
statements, and other public records, on verifications of accounts and on
notices to customers; to notify the post office authorities to change the
address for delivery of Debtor's mail to an address designated by Secured Party;
to receive, open and dispose of all mail addressed to Debtor; to send requests
for verification of Accounts Receivable to customers of account debtors; and to
do all things necessary to carry out this Agreement;
9.1.2 to obtain from any computer or other billing agency or service any
and all information relating to the Accounts Receivable, including without
limiting the generality of the
7
foregoing, copies of all trial balances, aging reports, summary reports, and
lists containing the names and addresses of account debtors;
9.13 to insert in any mailing being made by Debtor or on behalf of Debtor
to account debtors, such notices, letters, flyers or other notifications or
insertions as Secured Party may desire; and
9.1.4 to notify account debtors, or to require Debtor to notify account
debtors, that the Accounts Receivable have been assigned to, and are payable
directly to Secured Party.
9.2 Debtor hereby ratifies and approves all acts of such attorney and
agrees that neither Secured Party nor any other such attorney shall be liable
for any acts or omissions nor for any error of judgment or mistake of fact or
law. This power, being coupled with an interest, is irrevocable so long as any
Accounts Receivable assigned to Secured Party or in which Secured Party has a
security interest remain unpaid or until the Obligations have been fully
satisfied.
9.3 As long as Secured Party does not request that any of the account
debtors on the Accounts Receivable be notified of the assignment thereof to
Secured Party, Debtor shall make collections on the Accounts Receivable. After
notification of account debtors pursuant to Section 9.1.4 above, if Debtor
receives any payments from account debtors, Debtor shall hold the proceeds
received in trust for Secured Party without commingling the same with other
funds of Debtor, and turn over such proceeds to Secured Party in the exact form
in which they are received. If any of said collections include checks, drafts or
other payments payable to Debtor, they shall be duly endorsed by Debtor. Secured
Party being authorized to endorse in the name of Debtor any instruments
delivered to Secured Party unendorsed. All proceeds so received by Secured Party
shall be applied by Secured Party to the payment of the Obligations in such
order as Secured Party shall determine in its discretion.
Section 10. Miscellaneous
10. 1 The captions in this Agreement are for convenience and reference
only and do not define, limit or describe the scope of the provisions hereof.
10.2 The provisions of this Agreement may not be modified or terminated
orally. Secured Party shall not be deemed to have waived or amended any of its
rights or remedies hereunder unless such waiver or amendment be in writing and
signed by it. No delay or omission on the part of the Secured Party in
exercising any such right or remedy shall operate as a waiver of such right or
remedy or any other right or remedy. A waiver on any one occasion shall not be
construed as a bar to or a waiver of the same right or remedy on any future
occasion.
10.3 The rights and remedies provided the Secured Party in this Agreement
and in any other document, instrument or agreement between the parties hereto
shall be cumulative and shall be in addition to and not in derogation of any
rights or remedies provided Secured Party in any such other document, instrument
or agreement or under applicable law or otherwise.
8
10.4 All rights of Secured Party hereunder shall inure to the benefit of
its successors and assigns; and all Obligations of Debtor hereunder shall bind
its heirs, executors, administrators, successors and assigns.
10.5 Every word herein purporting to the neuter gender only shall extend
to and include males and females and every word herein importing the singular
number only shall be construed to extend to and include the plural number also.
10.6 In the event any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be held
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall be valid and enforceable to the fullest
extent permitted by law.
10.7 The law governing this Agreement shall be the substantive law of the
State of Rhode Island determined without resort to the state's conflict-of-laws
rules.
Notwithstanding any of the foregoing provisions, this Agreement shall at
all times be subordinate to any Senior Liens Debtor has in effect as of the date
of this Agreement or enters into after the date of this Agreement, including the
refinancing of the PrinVest Lien listed on Exhibit A.
IN WITNESS WHEREOF, Debtor and Secured Party have executed this Security
Agreement, under seal, on the day and year first above written.
WITNESS: DEBTOR:
NETWORK SIX, INC.
/s/ [ILLEGIBLE] By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------- -------------------------------
Treasurer
SECURED PARTY:
SMALL BUSINESS LOAN FUND
CORPORATION
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
---------------------------- -------------------------------
Administrator
9
EXHIBIT A
Senior Liens shall include:
1. Any and all liens resulting from a loan agreement entered into between
PrinVest Financial Corp., a New Jersey corporation, and the Maker hereof dated
December 31, 1997 any successor bank or institutional lender for financing to be
used by the Borrower in conjunction with its day to day business operations,
which financing is or may be secured by Borrower's grant of a first position
security interest in all accounts receivable and work in progress of the
Borrower.
2. Any and all equipment leases presently existing and any other equipment
leases entered into by the Borrower after the date hereof.
3. An assignment of certain litigation proceeds by Borrower to Xxxxxxxx
Xxxxxx IMS Corporation dated December 24, 1997.
4. A financing arrangement between the Borrower and Xxxxxx Xxxxxxxxxxx
relating to a contract between Borrower and the State of Maine dated April 11,
997 which is identified as the "Maine Automated Child Welfare Information System
Contract" and evidenced by financing statement 665667 and 665719 filed with the
Rhode Island Secretary of State.
10
4.2 All warranties, representations, statements and other information
furnished to Secured Party by Debtor or on behalf of Debtor at the Debtor's
request, are and will be when the same are made or furnished by Debtor accurate
and complete in all material respects.
4.3 The chief executive office of Debtor is as stated above, and Debtor
will not change such chief executive office without thirty (30) days prior
written notice to Secured Party.
4.4 The Collateral is and will be kept at Debtor's address listed above,
and that Debtor will not remove any of the Collateral from said location without
the prior written consent of Secured Party, except Inventory, sold in the
ordinary course of business.
4.5 Except as indicated in Section 4.1 above, no financing statement, tax
lien or other lien, claim or encumbrance covering any of the Collateral or any
proceeds thereof is on file in any public office, and that at the request of
Secured Party, Debtor will join with Secured Party in executing one or more
financing statements pursuant to the Uniform Commercial Code in form
satisfactory to Secured Party and will pay the cost of filing the same in all
public offices wherever filing is deemed by Secured Party to be necessary or
desirable; and Debtor hereby irrevocably constitutes and appoints any officer of
Secured Party, Debtor's attorney-in-fact to execute and file in the name and on
behalf of Debtor such financing statement or statements in the event Debtor
refuses or fails to do so, provided that the Secured Party shall subordinate the
same to all Senior Liens.
4.6 Debtor will not sell, pledge, hypothecate, encumber, assign, or offer
to sell or otherwise transfer the Collateral or any interest therein after the
date hereof without the prior written consent of Secured Party, except in the
ordinary course of business, and except that the Debtor may at any time
refinance Senior Lien with PrinVest to obtain new financing as provided on
Exhibit A as a Senior Lien for which the Debtor may give a first priority
security interest Accounts Receivables and work in progess without the prior
written consent of Secured Party. A sale in the ordinary course of business does
not include, inter alia a transfer in partial or total satisfaction of a debt.
Lender agrees to subordinate its intent in the accounts receivable and work in
progress to any such bank or institutional Lender.
4.7 Debtor shall maintain insurance at all times with respect to the
Collateral loss by fire (including so-called extended coverage), theft, and such
other casualties as Secured Party may require in a sum not less than the
replacement cost of the Collateral. In addition Debtor will have and maintain,
in such form and with such companies and in such amounts as shall be reasonably
satisfactory to Secured Party, insurance against such other losses as may be
reasonably required by Secured Party or as are customarily maintained by similar
businesses operating in similar localities and under similar conditions as
Debtor, including by way of illustration and not of limitation, flood, public
liability, personal property, theft, workmens' compensation and collision
insurance. Each and every policy of insurance (except xxxxxxx'x compensation)
shall insure Secured Party's interest regardless of any breach or violation by
Debtor of any warranties, declarations or conditions contained in such policies.
All policies of such insurance shall be in such form as shall be
reasonably satisfactory to Secured Party, shall be made payable in case of loss
to Secured Party, shall provide that the same may not be altered or cancelled by
the insurer except after thirty (30) days prior written notice to
4
Secured Party, and such certificates as Secured Party may from time to time
request, shall be delivered to Secured Party, to be held as collateral security
for the Obligations. Debtor shall have free choice of agent and insurer through
or by which such insurance is to be placed or written provided said insurer is
authorized to write such insurance in the State in which the Collateral is
located, as a licensed resident agent in said state, and has, at all times while
this Agreement is in effect, a general policy-holder's rating of A or A+ in
Best's latest rating guide. If any proceeds under any insurance policies are
paid to Secured Party while any Obligations are outstanding, Secured Party
shall, unless Event of Default has occurred and is continuing, pay over such
proceeds to Debtor for the purpose of replacing the lost, damaged, or destroyed
Collateral with respect to which such proceeds are paid. Upon an Event of
Default, payment may be made to Debtor at the option of the Secured Party or
shall be applied to Debtor's Obligation. Upon Event of Default, Secured Party,
in its discretion, may act as attorney for Debtor in obtaining, adjusting,
settling, and cancelling such insurance. If Debtor fails to procure or maintain
such insurance, Secured Party shall have the right, but not the obligation, to
effect such insurance, in which event Debtor shall repay to Secured Party the
cost thereof immediately upon demand, and until repaid these amounts shall be
added to the unpaid principal balance of the Note, shall bear interest at rate
of interest set forth in the Note and together with such interest shall be
secured by this Agreement and by any other agreements securing the Note.
4.8 Except as indicated in Section 4.1 above, the Collateral is now in
good order and repair, and that Debtor will keep the Collateral in good order
and repair and free from any adverse lien, security interest and encumbrance
(except Senior Liens) and will not waste or destroy the Collateral or operate or
use the Collateral in violation of any statute or ordinance.
4.9 Debtor will pay promptly when due all taxes and assessments upon the
Collateral or for its use or operation or upon any note or notes evidencing the
Obligations.
4.10 Debtor will permit Secured Party, through its authorized attorneys,
accountants and representatives, to inspect and examine the Collateral and/or
books, accounts, records, ledgers and assets of every kind and description of
Debtor with respect to the Collateral at all reasonable times upon reasonable
notice, and to make copies and extracts from such books, accounts, records and
ledgers.
4.11 Debtor will, at all times and from time to time at the request of
Secured Party, do, make, and execute and deliver all such additional and further
acts, things, deeds, assurances and instruments as Secured Party reasonably
deems necessary or appropriate to more completely perfect or maintain perfected
its security interest in the Collateral subject to Senior Liens and/or to
otherwise further vest in and assure to Secured Party its rights hereunder and
in or to the Collateral and the proceeds and products thereof.
4.12 Debtor hereby authorizes Secured Party to file financing and
continuation statements with respect to the Collateral in accordance herewith
without the signature of Debtor whenever lawful.
5
EXHIBIT A
Senior Liens shall include:
1. Any and all liens resulting from a loan agreement entered into between
PrinVest Financial Corp., a New Jersey corporation, and the Maker hereof dated
December 31, 1997 any successor bank or institutional lender for financing to be
used by the Borrower in conjunction with its day to day business operations,
which financing is or may be secured by Borrower's grant of a first position
security interest in all accounts receivable and work in progress of the
Borrower.
2. Any and all equipment leases presently existing and any other equipment
leases entered into by the Borrower after the date hereof.
3. An assignment of certain litigation proceeds by Borrower to Xxxxxxxx
Xxxxxx IMS Corporation dated December 24, 1997.
4. A financing arrangement between the Borrower and Xxxxxx Xxxxxxxxxxx
relating to a contract between Borrower and the State of Maine dated April 11,
997 which is identified as the "Maine Automated Child Welfare Information System
Contract" and evidenced by financing statement 665667 and 665719 filed with the
Rhode Island Secretary of State.
10
NETWORK SIX, INC.
CERTIFICATE OF SECRETARY
I, Xxxxxxx X. Xxxxxxx, do hereby certify that I am the duly elected,
qualified and acting Secretary of Network Six, Inc. (the "Corporation"), a Rhode
Island corporation, and that the resolutions set forth in this certificate were
adopted by the written consent of all of the Board of Directors of the
Corporation dated September 21, 1998:
RESOLVED: That the Corporation is hereby authorized to borrow from Small
Business Loan Fund Corporation of Rhode Island (the "Lender") the aggregate
principal amount of up to Two Hundred Fifty Thousand Dollars ($250,000.00) and,
in connection therewith, to execute, deliver and perform a term loan agreement
between the Corporation and Lender pursuant to which the Lender will lend to the
Corporation up to Two Hundred and Fifty Thousand Dollars ($250,000.00) (the
"Loan Agreement"), a Two Hundred Fifty Thousand Dollar ($250,000.00) Term
Promissory Note (the "Note"), and a Security Agreement securing repayment of the
same (the "Security Agreement").
RESOLVED: That the President or Treasurer of the Corporation be, and each
of them acting alone hereby is authorized to execute in the name and deliver on
behalf of the Corporation one or more counterparts of the Loan Agreement, the
Note, and the Security Agreement, to be in form and substance as may be approved
by the officer executing the same, his or her execution thereof to be deemed
conclusive evidence of such approval and of his or her authority hereunder.
RESOLVED: That the several officers of the Corporation be and each of them
acting alone hereby is authorized to execute such instruments and take such
other actions in the name and on behalf of the Corporation as they or any one of
them may deem necessary or appropriate to carry out the terms of the Loan
Agreement, the Note, and the Security Agreement, including without limitation,
the execution, acknowledgment and delivery of any and all agreements,
certificates, instruments and other documents as they or any one of them shall
deem necessary or appropriate.
And I do hereby certify that the following are the officers of the
Corporation and that they have been elected to serve in the capacities set forth
opposite their names until such time as their successors have been duly elected
and qualified:
Xxxxxxx X. Xxxxxx - President
Xxxxx X. Xxxxx - Vice President
Xxxxxxx X. Xxxxxxx - Secretary and Treasurer
IN WITNESS WHEREOF, I have executed this Certificate of Secretary on the
21st day of September, 1998.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Secretary
CERTIFICATE OF SECRETARY
OF
NETWORK SIX, INC.
The undersigned, being the duly elected Secretary of Network Six, Inc., a
Rhode Island corporation (the "Corporation"), hereby certifies that the copy of
the by-laws of the Corporation attached hereto as Exhibit A is a true and
accurate copy of said by-laws as of this date, the originals being kept with the
Corporation's minutes in the offices of Xxxxx & Xxxxxxxx, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000.
IN WITNESS WHEREOF, the undersigned has set her hand this 21 day of
September, 1998.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, Secretary
INTERCREDITOR AGREEMENT BETWEEN
BUSINESS DEVELOPMENT COMPANY
OF RHODE ISLAND AND
SMALL BUSINESS LOAN FUND CORPORATION
Agreement entered into this 21st day of September, 1998, by and between
Business Development Company of Rhode Island, a Rhode Island corporation with
its office at 00 Xxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx Xxxxxx 00000
("BDC") and Small Business Loan Fund Corporation, a Rhode Island governmental
instrumentality with an office at Xxx Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000 ("SBLFC")
WITNESSETH:
WHEREAS, NETWORK SIX, INC., a Rhode Island corporation with offices at 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000 ("Borrower"), has obtained term loan
financing in the original principal sum of $250,000 from BDC ("BDC Term Loan"),
such BDC Term Loan to be secured by a lien interest in all of the Borrower's
presently owned and hereafter acquired fixtures, tangible and intangible
personal property (the "Collateral"); and
WHEREAS, the Borrower has obtained financing in the original aggregate
principal amount of $250,000 from SBLFC (the "SBLFC Loan"), such SBLFC Loan to
be secured by a lien interest in all of the Collateral; and
WHEREAS, BDC and SBLFC agree that it is in their best interest to enter
into an Intercreditor Agreement governing their relationship;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Consent to Grant of Security Interest. SBLFC consents to the granting
by the Borrower to BDC of a security interest in and to all the Collateral
and the proceeds thereof, as security for the BDC Term Loan. BDC consents
to the granting by the Borrower to SBLFC of a security interest in and to
all the Collateral and the proceeds thereof, as security for the SBLFC
Loan.
2. Pari Passu. In consideration of the premises, BDC and SBLFC hereby
agree that BDC's security interest in the Collateral and products and
proceeds thereof, shall be and hereby is pari passu with the security
position for the SBLFC Loan.
3. Primary Debt. BDC and SBLFC agree that each of their security documents
and any amendments thereto will not, at any time, secure an amount greater
than the Primary Debt. For purposes of this Agreement, the term "Primary
Debt" shall mean:
(a) with respect to BDC, the amount of the BDC Term Loan,
plus: (i) accrued and unpaid interest on and fees related to the BDC
Term Loan; (ii) amounts advanced by BDC on behalf of the Borrower
for taxes, insurance, maintenance or repairs relating to the
Collateral; and (iii) other costs incurred by BDC, including but not
limited to attorneys' fees, in protecting or realizing upon its
liens or security interest
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under the documents, instruments, agreements, or other writings
evidencing or securing the BDC Term Loan; and (b) with respect to
SBLFC, the amount of the SBLFC Loan plus (i) accrued and unpaid
interest on and fees related to the SBLFC Loan; (ii) amounts
advanced by SBLFC on behalf of the Borrower for taxes, insurance,
maintenance or repairs relating to the Collateral; and (iii) other
costs incurred by SBLFC, including but not limited to attorneys'
fees, in protecting or realizing upon its liens or security interest
under the documents, instruments, agreements, or other writing
evidencing or securing the SBLFC Loan.
4. Relative Priorities. BDC and SBLFC agree that despite their respective
secured positions concerning the Collateral, they wish to establish, as
between them, and only between them, the order of priority as to the
application of proceeds realized from any disposition of any secured
party, or otherwise, of the Collateral. BDC and SBLFC agree that such
proceeds shall be applied on a pari passu basis based upon the then
outstanding respective amounts of the BDC Primary Debt and the SBLFC
Primary Debt.
Each of the parties hereto shall execute such instruments including,
without limitation, those forms commonly referred to as "UCC-1" and/or
"UCC-3" with respect to the priorities described and established in
Paragraph 4, above, as the other reasonably may request from time to time.
5. Exchange of Notices. Each of the parties shall provide
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the other with a copy of any notices of demand or default given the
Borrower and shall provide the other with written notice of any
acceleration in each event as and when effected or made by that party;
provided, however, the failure to provide such notice shall not have
adverse effect upon such demand, default, and/or acceleration.
6. Exercise of Rights. BDC and SBLFC hereby agree:
(a) Each party shall upon request of the other party provide
financial and/or audit information that has been obtained from the
Borrower, directly or indirectly, unless prohibited by applicable
law.
(b) The within Agreement is intended to reflect and restate
the relative priorities and rights of the parties hereto, and is not
intended to amend or modify any of the provisions of the instruments
executed in connection with the loan arrangements between either BDC
or SBLFC and the Borrower.
7. Insurance Proceeds. The respective rights and priorities of the parties
in and to any proceeds realized on account of any insured loss to all or
any portion of the Borrower's assets are the same as the priorities set
forth in Paragraph 4. above. Subject to the foregoing, in the event of any
insured loss, the parties shall agree concerning their respective interest
in the insurance proceeds arising therefrom, shall cooperate concerning
the adjustment and collection of such loss, and shall cooperate concerning
the
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collection of any check, draft, or other item which represents such
insurance proceeds and the distribution of such proceeds amongst the
parties.
8. Duration. This Agreement and all obligations hereunder or with respect
hereto, of the Borrower, BDC and SBLFC shall continue in full force and
effect until payment in full of the SBLFC Loan.
9. Notices. Notices and other correspondence concerning the within
Agreement shall be given to the following addresses, each of which may be
changed upon seven (7) days prior written notice to all others by
certified mail, return receipt requested:
If to SBLFC:
Small Business Loan Fund Corporation
Xxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
If to BDC:
Business Development Company of Rhode Island
00 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Vice President
10. Independent Parties. BDC and SBLFC each acknowledge that the other
party maintains and manages its own independent relationship with the
Borrower and that neither BDC nor SBLFC is the agent of any other party.
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IN WITNESS WHEREOF, the parties have executed the within Agreement on the
date first above written.
BUSINESS DEVELOPMENT
COMPANY OF RHODE ISLAND
("BDC")
By: /s/ [ILLEGIBLE]
----------------------------------
Title: President
-------------------------------
SMALL BUSINESS LOAN FUND
CORPORATION
By: /s/ [ILLEGIBLE]
----------------------------------
Title: Administrator
-------------------------------
Borrower hereby consents to the terms of the above Agreement and
specifically consents to the provisions contained in Paragraph 6(a) and 6(b).
NETWORK SIX, INC.
("Borrower")
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Title: TREASURER
-------------------------------------
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