EXHIBIT 10.71
CHANGE IN TERMS AGREEMENT
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL / COLL ACCOUNT OFFICER INITIALS
$360,000.00 09-28-2001 10-01-2002 100006519
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References in the shaded area are for Lender's use only and do not limit the applicability of this document to any
particular loan or item. Any item above containing ""'" has been omitted due to text length limitations.
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BORROWER: ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp. (TIN: ▇▇-▇▇▇▇▇▇▇) LENDER: Pennsylvania Business Bank
Two Westborough Business Park ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
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PRINCIPAL AMOUNT: $360,000.00 INITIAL RATE: 9.000% DATE OF AGREEMENT: September 28, 2001
DESCRIPTION OF EXISTING INDEBTEDNESS. A $500,000.00 Revolving Line of Credit to
LogNet, Inc. (the "Loan"), evidenced by Promissory Note and Disclosure dated
September 16, 1999, as modified by a Promissory Note and Disclosure Change In
Terms Agreement dated May 22, 2000 and a Change In Terms Agreement dated June
27, 2001 (the "Note"), providing that no further draws would be made on the
Credit Line and that the principal balance would be repaid in full on October 1,
2001 (the "Maturity Date"), together with all accrued and unpaid interest and
charges and fees, if any, with quarterly payments of interest only being made
beginning on September 1, 2000. Interest would accrue on the unpaid principal at
the Wall Street Journal Prime Rate (the "Index," as more particularly defined
herein) plus 1.500 percent per annum.
DESCRIPTION OF COLLATERAL. A security interest in all Inventory, Accounts,
Chattel Paper, Equipment, General Intangibles, and Fixtures.
DESCRIPTION OF CHANGE IN TERMS. 1. ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp. is the successor
in interest to LogNet, Inc. and shall assume all of LogNet, Inc.'s obligations
under the Note and Related Documents. 2. The Loan is to be repaid in 11 monthly
principal payments of $10,000.00 plus interest, beginning on November 1, 2001
and continuing on the first day of each month thereafter, and a 12th and final
payment, due on October 1, 2002 (the "Maturity Date"), in a sum sufficient to
satisfy all outstanding principal, accrued and unpaid interest, and charges and
fees. 3. Interest will accrue on the outstanding principal balance at the Index
plus 2 percent per annum, except that the rate of interest will never be less
than 9 percent per annum (the "Interest Rate Floor"). 4. A $105,000.00 money
market account, number 100011220, shall be pledged by Selway Partners, L.L.C. as
collateral; and, in the event this deposit is increased to $200,000.00, the
Interest Rate Floor will decrease to 8 percent per annum. 5. A security interest
is granted in all collateral described in Schedule A annexed hereto. 6. ▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇ Partners, L.L.C. are added as Guarantors. 7. Annual financial
statements prepared by a certified public accountant acceptable to Lender on a
review basis shall be submitted by the Borrower, ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp.,
and the Guarantor, Selway Partners, L.L.C., within 90 days of calendar year end.
7. In the event ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp. is sold while the Loan remains
outstanding, the Loan shall immediately become due and payable in full.
PROMISE TO PAY. ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp. ("Borrower") promises to pay to
Pennsylvania Business Bank ("Lender"), or order, in lawful money of the United
States of America, the principal amount of Three Hundred Sixty Thousand & 00/100
Dollars (S360,000.00), together with interest on the unpaid principal balance
from October 4, 2001, until paid in full.
PAYMENT. Subject to any payment changes resulting from changes in the Index,
Borrower will pay this loan in 11 principal payments of $10,000.00 each and one
final principal and interest payment of $251,875.00. Borrower's first principal
payment is due November 1, 2001, and all subsequent principal payments are due
on the same day of each month after that. In addition, Borrower will pay regular
monthly payments of all accrued unpaid interest due as of each payment date,
beginning November 1, 2001, with all subsequent interest payments to be due on
the same day of each month after that. Borrower's final payment due October 1,
2002, will be for all principal and all accrued interest not yet paid. Interest
on this Agreement is computed on a 365/360 simple interest basis; that is, by
applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing.
CHANGE IN TERMS AGREEMENT
LOAN NO: 100006519 (CONTINUED) PAGE 2
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VARIABLE INTEREST RATE. The interest rate on this Agreement is subject to change
from time to time based on changes in an independent index which is the Prime
Rate for large money center banks published daily in the Money Rates Section of
the Wall Street Journal (Eastern, Edition) (the "Index"). The Index is not
necessarily the lowest rate charged by Lender on its loans. If the Index becomes
unavailable during the term of this loan, Lender may designate a substitute
index after notice to Borrower. Lender will tell Borrower the current Index rate
upon Borrower's request. The interest rate change will not occur more often than
each when Prime Rate Change is announced. Borrower understands that Lender may
make loans based on other rates as well. The Index currently is 6.000% per
annum. The interest rate to be applied to the unpaid principal balance of the
Note will be at a rate of 2.000 percentage points over the Index, resulting in
an initial rate of 9.000% per annum. Notwithstanding the foregoing, the variable
interest rate or rates provided for in the Note will be subject to the following
minimum and maximum rates. NOTICE: Under no circumstances will the interest rate
on the Note be less than 9.000% per annum or more than the maximum rate allowed
by applicable law.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges
are earned fully as of the date of the loan and will not be subject to refund
upon early payment (whether voluntary or as a result of default), except as
otherwise required by law. Except for the foregoing, Borrower may pay without
penalty all or a portion of the amount owed earlier than it is due. Early
payments will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower's obligation to continue to make payments under the payment schedule.
Rather, early payments will reduce the principal balance due and may result in
Borrower's making fewer payments. Borrower agrees not to send Lender payments
marked "paid in full", "without recourse", or similar language. If Borrower
sends such a payment, Lender may accept it without losing any of Lender's rights
under this Agreement, and Borrower will remain obligated to pay any further
amount owed to Lender. All written communications concerning disputed amounts,
including any check or other payment instrument that indicates that the payment
constitutes "payment in full" of the amount owed or that is tendered with other
conditions or limitations or as full satisfaction of a disputed amount must be
mailed or delivered to: Pennsylvania Business Bank, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
10.000% of the unpaid portion of the regularly scheduled payment or $20.00,
whichever is greater.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Agreement to 7.000 percentage points
over the Index. The interest rate will not exceed the maximum rate permitted by
applicable law. If judgment is entered in connection with this Agreement,
interest will continue to accrue on this Agreement after judgment at the
interest rate applicable to this Agreement at the time judgment is entered.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
Indebtedness.
OTHER DEFAULTS. Borrower fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or in
any of the Related Documents or to comply with or to perform any term,
obligation, covenant or condition contained in any other agreement between
Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Borrower defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or
any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's ability to
perform Borrower's obligations under this Agreement or any of the Related
Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Borrower's accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if
there is a good faith dispute by Borrower as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
CHANGE IN TERMS AGREEMENT
LOAN NO: 100006519 (CONTINUED) PAGE 3
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EVENTS AFFECTING GUARANTOR.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of
the Indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
CURE PROVISIONS. If any default, other than a default in payment is
curable and if Borrower has not been given a notice of a breach of the
same provision of this Agreement within the preceding twelve (12) months,
it may be cured (and no event of default will have occurred) if Borrower,
after receiving written notice from Lender demanding cure of such default:
(1) cures the default within five (5) days; or (2) if the cure requires
more than five (5) days, immediately initiates steps which Lender deems in
Lender's sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps
sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required
by applicable law, declare the entire unpaid principal balance on this Agreement
and all accrued unpaid interest immediately due, and then Borrower will pay that
amount.
EXPENSES. If Lender institutes any suit or action to enforce any of the terms of
this Agreement, Lender shall be entitled to recover such sum as the court may
adjudge reasonable. Whether or not any court action is involved, and to the
extent not prohibited by law, all reasonable expenses Lender incurs that in
Lender's opinion are necessary at any time for the protection of its interest or
the enforcement of its rights shall become a part of the Indebtedness payable on
demand and shall bear interest at the Note rate from the date of the expenditure
until repaid. Expenses covered by this paragraph include, without limitation,
however subject to any limits under applicable law, Lender's expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), and appeals, to the extent permitted by applicable law. Borrower
also will pay any court costs, in addition to all other sums provided by law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Lender or Borrower against
the other.
GOVERNING LAW. This Agreement will be governed by, construed and enforced in
accordance with federal law and the laws of the Commonwealth of Pennsylvania.
This Agreement has been accepted by Lender in the Commonwealth of Pennsylvania.
CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to
submit to the jurisdiction of the courts of Philadelphia County, Commonwealth of
Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $50.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
CHANGE IN TERMS AGREEMENT
LOAN NO: 100006519 (CONTINUED) PAGE 4
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COLLATERAL. Borrower acknowledges this Agreement is secured by a security
interest in all Inventory, Accounts, Chattel Paper, Equipment, Goods, General
Intangibles, and Fixtures, as provided in a certain Security Agreement dated
September 16, 1999 and more particularly described in Schedule A annexed hereto;
and the pledge of money market account number 100011220.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of
the original obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and in full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a satisfaction
of the obligation(s). It is the intention of Lender to retain as liable parties
all makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent
actions.
DEFINITION OF PRIME OR INDEX RATE. Lender uses the Prime Rate of interest for
large money center banks as published daily in the Money Rates section of the
Wall Street Journal or, if the Wall Street Journal no longer publishes the Prime
Rate, another index published elsewhere, as selected by Lender.
CALCULATION OF INTEREST CHARGES. Any language herein to the contrary
notwithstanding, all interest charges will be calculated based on a year of
three hundred and sixty (360) days. Interest (finance charges) calculated for
portions of a year will be calculated on a formula using 365 as the numerator
and 360 as the denominator (i.e., 365/360).
SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower,
and upon Borrower's heirs, personal representatives, successors, and assigns,
and shall be enforceable by Lender and its successors and assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy (ies) should be sent to us at the following address: _____________-
_____________-
MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights
or remedies under this Agreement without losing them. Borrower and any other
person who signs, guarantees or endorses this Agreement, to the extent allowed
by law, waive presentment, demand for payment, and notice of dishonor. Upon any
change in the terms of this Agreement, and unless otherwise expressly stated in
writing, no party who signs this Agreement, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length of
time) this loan or release any party or guarantor or collateral; or impair, fail
to realize upon or perfect Lender's security interest in the collateral; and
take any other action deemed necessary by Lender without the consent of or
notice to anyone. All such parties also agree that Lender may modify this loan
without the consent of or notice to anyone other than the party with whom the
modification is made. The obligations under this Agreement are joint and
several. If any portion of this Agreement is for any reason determined to be
unenforceable, it will not affect the enforceability of any other provisions of
this Agreement.
PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER
AGREES TO THE TERMS OF THE AGREEMENT.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
CHANGE IN TERMS AGREEMENT
LOAN NO: 100006519 (CONTINUED) PAGE 5
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BORROWER:
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, CORP.
BY:/S/ ▇▇▇▇▇ ▇ ▇▇▇▇▇▇ (SEAL)
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., PRESIDENT AND CEO OF
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, CORP.
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SCHEDULE "A"
SECURED PARTY: DEBTOR(S):
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Pennsylvania Business Bank ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇.▇▇▇, Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 4th Floor Two Westborough Business Park
Philadelphia, Pa. 19102 ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
As security for the prompt satisfaction of all Obligations of Debtor, the Debtor
does hereby assign and grant to the Bank a lien and security interest in:
All personal property of the Debtor, including without limitation the following,
all whether now owned or hereafter acquired or arising: (i) accounts, accounts
receivable, contract rights, chattel paper (including electronic chattel paper),
notes receivable, instruments and documents (including warehouse receipts), and
client accounts arising out of contingency agreements, court awards, retainer
agreements, or other professional arrangements; (ii) goods of every nature,
including without limitation, inventory, stock-in-trade, raw materials, work in
process, items held for sale or lease or finished or to be furnished under
contracts of sale or lease, goods that are returned, reclaimed or repossessed,
together with materials used or consumed in the Debtor's business; (iii)
equipment, including, without limitation, machinery, vehicles, furniture, and
fixtures; (iv) investment property; (v) general intangibles, of every kind and
description, including, but not limited to payment intangibles, all existing and
future customer lists, choses in action, claims (including without limitation
claims for indemnification or breach of warranty), books, records, patents and
patent applications, copyrights, trademarks, trade names, trade styles,
telephone numbers, signage, trademark applications, goodwill, blueprints,
drawings, designs and plans, trade secrets, contracts, licenses, license
agreements, formulae, tax and any other types of refunds, returned and unearned
insurance premiums, rights and claims under insurance policies, and computer
information, software, source codes, object codes, records and data; (vi)
deposit accounts; (vii) letter of credit rights; (ix) all property of the Debtor
now or hereafter in the Bank's possession or in transit to or from, under the
custody or control of or on deposit with, the Bank or any affiliate thereof,
including deposit and other accounts; (x) all cash and cash equivalents; (xi)
all cash and non-cash proceeds (including without limitation, insurance
proceeds) or all of the foregoing property, all products thereof and all
additions and accessions thereto, Substitutions therefore and replacements
thereof; and (xii) all URLs, domain names, Internet addresses, IP addresses,
e-mail addresses, and the like.
