Marquette Capital Bank N.A. - Letter Agreement
April 30, 1999
To: Spanlink Communications, Inc. (the "Borrower")
0000 Xxxxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This letter agreement confirms the additional agreements between the Borrower
and Marquette Capital Bank, N.A. (the "Bank"). In consideration of the mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, the
Borrower and the Bank agree as follows (check all boxes that apply):
1. X Subject to the provisions of this letter agreement, at the
Borrower's request, the Bank shall make loans to the Borrower during the period
from the date of this letter agreement to June 30, 1999 in an aggregate amount
not exceeding $1,700,000.00 at any time outstanding (the "Line of Credit"). The
Line of Credit is a revolving line of credit, and the Borrower may borrow,
prepay and re-borrow under the Line of Credit. The Borrower's obligation to
repay such loans and to pay interest and other charges, fees and expenses
thereon is evidenced by the Borrower's promissory note dated April 30, 1999
payable to the order of the Bank in the principal amount of $1,700,000.00
(together with any amendments, extensions, renewals and replacements thereof,
called the "Revolving Note"). The Bank may credit each such loan to the
Borrower's account number 2510497693 at the Bank. The Bank shall have no
obligation to make any such loan after the occurrence of any Event of Default.
In each period of 12 months ending on April 30 of each year, the Borrower shall
cause the unpaid principal balance of the Revolving Note to be zero for 30
consecutive days. The Borrower shall use all proceeds of such loans solely for
working capital purposes.
X The Borrower shall not at any time permit the unpaid
principal balance of the Revolving Note to exceed the Borrowing Base.
[ ] Subject to the provisions of this letter agreement, on
___________, the Bank shall make one or more loans to the Borrower in an
aggregate amount not exceeding __________ (collectively called the "Term Loan").
The Term Loan is not a revolving line of credit. The Borrower's obligation to
repay the Term Loan and to pay interest and other charges, fees and expenses
thereon is evidenced by the Borrower's promissory note dated ____________
payable to the order of the Bank in the principal amount of ____________
(together with any amendments, extensions, renewals and replacements thereof,
called the "Term Note"). The Bank may credit each such loan to the Borrower's
account number __________ at the Bank. The Bank shall have no obligation to make
any such loan after the occurrence of an Event of Default. The Borrower shall
use all proceeds of the Term Loan solely for ______________________.
[ ] The Borrower also is indebted to the Bank pursuant to the
Borrower's promissory note(s) payable to the order of the Bank in the original
principal amount(s) of _______________ (together with any amendments,
extensions, renewals and replacements thereof, also collectively called the
"Term Note").
2. The Borrower shall pay the following fees to the Bank: N/A.
3. As long as any now existing or hereafter arising debt, obligation or
liability of the Borrower to the Bank (including but not limited to any debt,
obligation or liability relating to any letter of credit) shall remain
outstanding, the Borrower shall comply with the following requirements:
a. The Borrower shall deliver to the Bank, in form and
substance acceptable to the Bank (check all boxes that apply):
X As soon as available, and in any event within 90 days
after each fiscal year of the Borrower, the annual
audited financial statements of the Borrower for such
fiscal year, prepared in accordance with GAAP; and
X As soon as available, and in any event within 90 days
after the end of each fiscal year of the Borrower,
the projected financial statements of the Borrower
for the next fiscal year; and
X As soon as available, and in any event within 30 days
after the end of each month, the financial statements
of the Borrower for such month, prepared by the
Borrower in accordance with GAAP; and
X As soon as available, and in any event within 30 days
after the end of each month, an aging and a listing
of accounts receivable and accounts payable of the
Borrower as of the end of such month; and
X As soon as available, and in any event within 30 days
after the end of each month, a Borrowing Base
Certificate and Covenant Compliance Certificate in
the form of Exhibit A attached hereto, completed with
amounts determined as of the end of such month; and
[ ] At least once every 12 months, and as otherwise
requested by the Bank, the current signed personal
financial statements of any guarantors of any of the
Borrower's indebtedness to the Bank (called the
"Guarantors"); and
[ ] Within _____ days after the same are filed with the
United States Internal Revenue Service, the annual
federal income tax returns of the Borrower and any
Guarantors, including all schedules, attachments and
amendments thereto; and
X Within 10 days after the Bank's request therefor,
such other information about the Borrower and any
Guarantors as the Bank may reasonably request from
time to time.
b. The Borrower shall keep accurate books and records in which
true and complete entries will be made in accordance with GAAP. Upon request of
the Bank, the Borrower, during normal business hours, shall give any
representatives of the Bank access to and permit such representatives to examine
and copy all books, records and other writings in its possession, to inspect its
property and to discuss its finances, accounts, property and business with any
of its officers and directors.
c. The Borrower shall file when due all required tax returns,
shall pay when due all taxes, assessments and other governmental charges levied
or imposed upon it or upon its income or profits or upon any of its property,
and shall pay when due all lawful claims for labor, materials and supplies
which, if unpaid, might become a lien or charge upon any property of the
Borrower; provided, that the Borrower shall not be required to pay any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
d. The Borrower shall keep and maintain its inventory,
equipment, real estate and other property necessary or useful in its business in
good condition and repair and shall pay when due all rental and mortgage
payments due on such property; provided, that nothing in this Section shall
prevent the Borrower from discontinuing the operation and maintenance of any
such property if such discontinuance is desirable in the conduct of the
Borrower's business and is not disadvantageous to the Bank.
e. The Borrower shall obtain and maintain insurance with
insurers that are acceptable to the Bank, in such amounts and with such
coverages (including without limitation professional liability insurance, public
liability insurance, fire, hazard and extended coverage insurance on all of its
assets, necessary workers' compensation insurance, and all other coverages as
are consistent with industry practice) as are acceptable to the Bank.
f. The Borrower shall not declare or pay any dividends or
other distributions on account of any shares of its stock or any of its other
ownership interests, or make any payment on account of any purchase, redemption
or other retirement of any shares of such stock or any such ownership interests,
or make any other payment or distribution on account of any shares of stock or
any ownership interests, or any warrant or option therefor, either directly or
indirectly; provided that, before the occurrence of an Event of Default, in any
fiscal year of the Borrower for which the Borrower has made an effective S
corporation election or an election to be treated as a partnership under the
United States Internal Revenue Code, the Borrower may pay dividends to its
shareholders or distributions to its members or partners in an aggregate amount
not exceeding ___________ of the Borrower's pretax net income in such fiscal
year as long as such dividends or distributions would not create an Event of
Default.
g. The Borrower shall preserve and maintain its existence and
all of its rights, privileges and franchises, and shall comply with all
applicable laws and regulations.
h. The Borrower shall not create, incur or permit to exist in
favor of any person other than the Bank any mortgage, deed of trust, assignment,
security interest or other hen on any of its property now owned or hereafter
acquired, except purchase money security interests securing indebtedness
permitted by Section 3(i)(iii).
i. The Borrower shall not incur, create, assume or permit to
exist any Funded Debt, except:
(i) Indebtedness to the Bank;
(ii) Subordinated Debt; and
(iii) Indebtedness in an aggregate amount not to
exceed at any time outstanding $100,000
incurred in the purchase (or borrowing for
the purchase) or lease of equipment.
j. The Borrower shall maintain its primary operating deposit
account at the Bank.
k. The Borrower shall comply with the following requirements
(check boxes that apply):
X The Borrower shall not permit the Borrower's Tangible
Net Worth to be less than $2,000,000.00.
X The Borrower shall not permit the Borrower's Debt
Service Coverage Ratio for any quarter of the
Borrower to be less than 1.25 to 1.
1. Year 2000 Compliance. "Year 2000 Compliance" means, with
regard to any person or entity, that all software, embedded microchips, and
other processing capabilities utilized by, and material to the business
operations or financial condition of, such person or entity are able to
interpret and manipulate data on and involving all calendar dates correctly and
without causing any abnormal ending scenario, including but not limited to all
dates in and after the year 2000. The Borrower represents and warrants to the
Bank and agrees that: (a) the Borrower has made due inquiry to determine whether
the computer applications and hardware the Borrower and the Borrower's material
suppliers and customers will be Year 2000 Compliant by January 1, 2000; and (b)
the Borrower has a plan to become Year 2000 compliant. By January 1, 2000, and
the Borrower agrees to devote adequate resources toward, diligently pursue, and
take all actions necessary to complete such plan and become Year 2000 Compliant
by January 1, 2000; and (c) to the best of the Borrower's knowledge, all of the
Borrower's material suppliers and customers will be Year 2000 Compliant by
January 1, 2000; and (d) the Borrower agrees to deliver to the Bank such
information regarding the plans and progress of the Borrower and the Borrower's
material suppliers and customers toward becoming Year 2000 Compliant as the Bank
may reasonably request from time to time, including but not limited to any
assessment by a third party of the Borrower's efforts to become Year 2000
Compliant; (e) at the Banks request from time to time, the Borrower shall order,
obtain, and deliver to the Bank a copy of audits of the Borrower's plans and
progress to become Year 2000 Compliant by January 1, 2000, and the Borrower
shall permit the Bank and the Bank's representatives to conduct audits of the
Borrower's operations for such purpose, and (f) the Borrower shall substantially
complete implementation of the Borrower's plan and remediation of material Year
2000 problems by September 30, 1999. Breach of any representation, warranty or
agreement in this paragraph, or failure of the Borrower or a significant portion
of the Borrower's material suppliers and customers to become Year 2000 Compliant
by January 1, 2000 shall constitute an Event of Default hereunder.
4. In this letter agreement:
a. "Borrowing Base" means the sum of (i) 80% of Eligible
Accounts Receivable.
b. "Capital Expenditures" means all expenditures for any
assets, or for improvements, replacements, substitutions or additions therefor
or thereto, which are capitalized on the balance sheet and which, in accordance
with GAAP, are required to be included in or reflected by the property, plant or
equipment or similar fixed asset account reflected in such balance sheet, and
shall include without limitation capitalized lease obligations.
c. "Current Assets" means the aggregate amount of assets of
the Borrower which, in accordance with GAAP, may be properly classified as
current assets, after deducting adequate reserves where proper, but in no event
including any real estate.
d. "Current Liabilities" means (i) all Debt of the Borrower
due on demand or within one year from the date of determination thereof, and
(ii) all other items (including taxes accrued as estimated) which, in accordance
with GAAP, may be properly classified as current liabilities of the Borrower.
e. "Debt" means (i) all items of indebtedness or liability of
the Borrower which in accordance with GAAP would be included in determining
total liabilities as shown on the liabilities side of the Borrower's balance
sheet on the date as of which Debt is to be determined, plus (ii) indebtedness
secured by any mortgage, pledge, lien or security interest on property of the
Borrower, whether or not the indebtedness secured thereby shall have been
assumed, plus (iii) guaranties, endorsements (other than for purposes of
collection in the ordinary course of business) and other contingent obligations
of the Borrower in respect of, or to purchase or otherwise acquire indebtedness
of others.
f. "Debt Service Coverage Ratio" for any fiscal year of the
Borrower means the ratio of (i) the Borrower's earnings before interest, taxes,
depreciation and amortization for such fiscal year, to (ii) the aggregate amount
of principal and interest payments due and payable in such fiscal year on all
Funded Debt.
g. "Eligible Accounts Receivable" means only such accounts
receivable of the Borrower as the Bank, in its sole discretion, shall deem
eligible. Without limiting the discretion of the Bank to consider any account
receivable not to be an Eligible Account Receivable, and by way of example only
of the types of accounts receivable that the Bank will consider not to be
Eligible Accounts Receivable, notwithstanding any earlier classification of
eligibility, the following accounts receivable shall not be considered Eligible
Accounts Receivable: (i) any account receivable which is not paid in full within
90 days after it is created; (ii) any account receivable as to which any
warranty is breached; (iii) any account receivable as to which the account
debtor or other obligor disputes liability or makes any claim; (iv) any account
receivable owed by any officer, director or shareholder of the Borrower or any
of their relatives or any partnership, corporation, association, joint venture
or other business entity wholly or partly owned or controlled directly or
indirectly by the Borrower or any of them or any of their relatives; (v) any
account receivable owed by any person as to whom a petition in bankruptcy or
other application for relief is filed under any bankruptcy, reorganization,
receivership, moratorium, insolvency or similar law; (vi) any account receivable
owed by any person who makes an assignment for the benefit of creditors, becomes
insolvent, fails, suspends business, or goes out of business; (vii) any account
receivable owed by the United States government or any agency of the United
States government; (viii) any account receivable owed by any person if 10% or
more in amount of the accounts receivable owed by such person to the Borrower
are considered ineligible; (ix) consignment receivables; (x) bonded receivables;
(xi) any account receivable constituting a retainage; (xii) any account
receivable for goods which have not been shipped or work which has not been
fully performed; (xiii) any account receivable owed by any person outside the
United States of America; (xiv) any account receivable owed by any person with
whose creditworthiness the Bank becomes dissatisfied; and (xv) any account
receivable in which the Bank does not have a perfected security interest
constituting a first lien. In the event the Borrower owes any amount to any
person that owes an account receivable to the Borrower, such amount owed by the
Borrower shall be deducted from that portion of the account receivable which
would otherwise qualify as an Eligible Account Receivable and only the
difference thereof shall be considered an Eligible Account Receivable. No
account receivable which does not qualify as an Eligible Account Receivable
shall be considered an Eligible Account Receivable unless the Bank, upon the
written request of the Borrower, states in writing that such account receivable
is to be considered an Eligible Account Receivable.
h. "Eligible Equipment" means the net book value of only such
equipment of the Borrower as the Bank, in its sole discretion, shall deem
eligible. Without limiting the discretion of the Bank to consider any equipment
not to be Eligible Equipment, notwithstanding any earlier classification of
eligibility, the following equipment shall not be considered Eligible Equipment:
(i) any equipment which does not meet all standards imposed by any governmental
agency; (ii) any equipment which is not located in the United States of America;
(iii) any equipment which is obsolete, or which is not usable by the Borrower in
the normal course of its business; (iv) any equipment which is on consignment to
or from any other person or entity, or which has been sold or otherwise
delivered, transferred or conveyed to any other person or entity, or which is
subject to any bailment or lease; and (v) any equipment in which the Bank does
not have a perfected security interest constituting a first lien.
i. "Eligible Inventory" means the lesser of cost or fair
market value of only such raw materials inventory and finished goods inventory
of the Borrower as the Bank, in its sole discretion, shall deem eligible.
Without limiting the discretion of the Bank to consider any inventory not to be
Eligible Inventory, notwithstanding any earlier classification of eligibility,
the following inventory shall not be considered Eligible Inventory: (i) any
inventory which does not constitute finished goods, or which does not constitute
raw materials that are to be used or consumed by the Borrower in the normal
course of its business in the processing of such raw materials into finished
goods which, upon completion, will constitute Eligible Inventory; (ii) any
inventory which does not meet all standards imposed by any governmental agency;
(iii) any inventory which is not located in the United States of America; (iv)
any inventory which is obsolete, or which is not usable by the Borrower in the
normal course of its business; (v) any inventory which is on consignment to or
from any other person, or which has been sold or otherwise delivered,
transferred or conveyed to any other person, or which is subject to any bailment
or lease; (vi) any finished goods inventory which is not held for sale by the
Borrower in the normal course of its business, or which is not saleable by the
Borrower in the normal course of its business; and (vii) any inventory in which
the Bank does not have a perfected security interest constituting a first lien.
j. "Event of Default" means any default or event of default
under any existing or future note or other agreement of the Borrower with the
Bank.
k. "Funded Debt" means all indebtedness of the Borrower for
borrowed money and capital leases, all other indebtedness of the Borrower
evidenced by notes, bonds, debentures and similar obligations, and all other
interest-bearing indebtedness of the Borrower, including but not limited to all
indebtedness to the Bank under the Revolving Note and the Term Note, but
excluding all Subordinated Debt.
l. "GAAP" means generally accepted accounting principles
consistently applied. Except as otherwise approved by the Bank in writing, all
financial reporting, financial record keeping, and financial calculations in
connection with this letter agreement shall be made on the basis of accounting
principles, methods, elections and estimates that are consistent and that are
consistent with the accounting principles, methods, elections and estimates used
in the last annual financial statements of the Borrower delivered by the
Borrower to the Bank before or upon the execution of this letter agreement, and
that fairly present the financial condition or results of operations for the
period then ended.
m. "Senior Debt" means the difference of (i) Debt, minus (ii)
the unpaid principal balance of the Subordinated Debt.
n. "Subordinated Debt" means all indebtedness of the Borrower
that is subordinated to the Bank in form and substance acceptable to the Bank.
o. "Tangible Capital Base" means the sum of (i) Tangible Net
Worth, plus (ii) the unpaid principal balance of the Subordinated Debt.
p. "Tangible Net Worth" means the difference of:
(i) the tangible assets of the Borrower which, in
accordance with GAAP, are tangible assets, after deducting adequate
reserves in each case where, in accordance with GAAP, a reserve is
proper, minus
(ii) all Debt of the Borrower;
provided, that (A) inventory shall be taken into account on the basis of the
cost or current market value, whichever is lower, (B) in no event shall there be
included as such tangible assets patents, trademarks, tradenames, copyrights,
licenses, good will, memberships, or treasury stock or any securities or debt of
the Borrower, or any officer, director, employee, agent, shareholder or
affiliate of the Borrower, or any officer, director, employee, agent,
shareholder or affiliate of any shareholder or affiliate of the Borrower, or any
other debt or securities unless the same are readily marketable in the United
States of America, (C) securities included as such tangible assets shall be
taken into account at their current market price or cost, whichever is lower,
and (D) any write-up in the book value of any assets shall not be taken into
account.
5. In addition to all other defaults and events of default, each of the
following events shall constitute a default and an event of default under each
of the Borrower's existing and future notes and other agreements with the Bank:
The Borrower's failure to comply with any provision of this letter agreement;
[ ] ____________ is no longer the __________ of the Borrower; [ ] _________
own(s) less than __________ of the issued and outstanding shares of any class of
stock or interests of the Borrower; [ ] The value of the contribution of any
member decreases from that value as of the date hereof by
______________________.
6. The Borrower consents to the personal jurisdiction of the state and
federal courts located in the State of Minnesota in connection with any
controversy relating in any way to this letter agreement or to any transaction
or matter relating to this letter agreement, waives any argument that venue in
such forums is not convenient, and agrees that any litigation initiated by the
Borrower against the Bank relating in any way to this letter agreement or to any
transaction or matter relating to this letter agreement shall be venued in
either the Minnesota District Court of the county where the Bank is located, or
the United States District Court, District of Minnesota.
7. No provision of this letter agreement can be amended, modified,
waived or terminated, except by a writing executed by the Borrower and the Bank.
The Borrower shall pay to the Bank on demand all of the Bank's costs and
expenses, including but not limited to reasonable attorneys' fees and legal
expenses, in connection with this letter agreement, the writings executed
herewith, and the transactions described herein and therein. This letter
agreement shall bind and benefit the parties and their respective successors an
assigns; provided, the Borrower shall not assign any of its rights or
obligations under this letter agreement without the prior written consent of the
Bank, and any assignment in violation of this sentence shall be null and void.
This letter agreement shall be governed by and construed in accordance with the
laws of the State of Minnesota.
8. This letter agreement supersedes and replaces all prior commitment
letters, proposal letters, term sheets, and other statements of loan terms
issued by the Bank to the Borrower, and all such letters and term sheets are
terminated.
Sincerely,
Marquette Capital Bank, N.A.
By /s/ Xxxxxxxx Xxxx Xxxxx
Xxxxxxxx Xxxx Xxxxx
Title Vice President
The Borrower agrees to this letter agreement.
THE BORROWER REPRESENTS AND WARRANTS TO THE BANK AND AGREES THAT THE
BORROWER HAS READ ALL OF THIS LETTER AGREEMENT AND UNDERSTANDS ALL OF THE
PROVISIONS OF THIS LETTER AGREEMENT.
Executed as of April 30, 1999.
SPANLINK COMMUNICATIONS, INC.
By /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Title Vice President and Chief Financial Officer
Marquette Capital Bank, N.A. - Promissory Note
$1,700,000.00 Minneapolis, Minnesota
No. Date: April 30, 1999
Maker: Spanlink Communications, Inc.
FOR VALUE RECEIVED, the Maker promises to pay to the order of Marquette
Capital Bank, N.A. (the "Bank"), at its office in Minneapolis, Minnesota, or at
such other place as any present or future holder of this Note may designate from
time to time, the principal amount of One million and seven hundred thousand
dollars, ($1,700,000.00), or so much thereof as is advanced and remains
outstanding as shown in the records of the holder of this Note, plus interest
thereon from the date on which the same is advanced until this Note is fully
paid, computed on the basis of the actual number of days elapsed and a 360-day
year. Check all boxes that apply:
Interest: The interest rate under this Note is:
[ ] A fixed rate of ______ per annum.
X A variable rate that shall always be 1% per annum more than the highest
prime rate published in The Wall Street Journal, as determined by the
holder of this Note.
[ ] A variable rate that shall always be per annum more than the United
States Treasury securities constant maturities rate published in the
Federal Reserve Statistical Release, as determined by the holder of
this Note.
[ ] A variable rate that shall always be ____ per annum more than the
prior month average of the 90 day United States Treasury Xxxx constant
maturity rate as published monthly in the Federal Reserve Statistical
Release, as determined by the holder of this Note.
[ ] A variable rate that shall always be _____ per annum more than the
prior month average of the 30 day LIBOR rate as published in The Wall
Street Journal, as determined by the holder of this Note.
[ ] Other:
[ ] The interest rate under this Note will not exceed ______ per annum.
[ ] The interest rate under this Note will not be less than ____ per annum.
[ ] If there is a variable interest rate, the interest rate will be
adjusted based on the index rate in effect on such day.
If the interest rate under this Note is a variable rate based on an index rate
that is no longer available, the holder of this Note may select a comparable
index rate for use under this Note. If this Note provides for a variable
interest rate based on an index rate, the Bank may lend to its other customers
at rates that are equal to, more than, or less than the index rate.
Payments: The Maker shall make the following payments of principal and interest
under this Note:
X Payments of accrued interest only on the first day of each month
beginning May 1, 1999, and 1 final payment of the remaining unpaid
balance of principal and accrued interest on June 30, 1999.
[ ] ______ consecutive equal payments of _______ each on the ____ day of
each ________ beginning ________ and continuing through _________, and
1 final payment of the remaining unpaid balance of principal and
accrued interest on __________. If there is a variable interest rate
and the rate changes, the holder of this Note, at its option, may
change the amount of each remaining payment (except the final payment)
under this Note to an amount necessary to amortize the original
principal amount of this note plus interest thereon at the rate then in
effect over a _____-year period; provided, no such change shall change
the final maturity date of the Note.
[ ] _____ consecutive equal principal payments of _______ each on the
____ day of each ________ beginning ___________ and continuing through
__________, and 1 final payment of the remaining unpaid balance of
principal on ____________. Accrued interest is due and payable on the
_____ day of each ___________ beginning _____________ and on _________.
[ ] Other:
[ ] All such payments shall be debited from Borrower's account number
_________ at the Bank.
Additional Interest:
X Notwithstanding the foregoing, after the occurrence of an Event of
Default and until such Event of Default is cured, the interest rate
under this Note shall automatically increase to a rate that is 2% per
annum in excess of the rate otherwise in effect. If this Note provides
for a variable interest rate, the increased rate shall continue to vary
based on changes in the index rate.
Late Fees:
X If any payment under this Note (including but not limited to any final
payment, and any payment due by reason of default or acceleration) is
more than 10 days past due, the Maker shall pay the holder of this Note
a late fee equal to 5% of the past due amount.
Prepayments:
X All or any part of the unpaid balance of this Note may be prepaid at
any time without penalty.
[ ] At the time that any amount under this Note is paid before such
amount is due under the above payment schedule, the Maker shall pay the
holder of this Note the following prepayment fee:
Other Provisions:
X This Note evidences the Maker's obligation to repay one or more loans
under a revolving line of credit.
X This Note is an amendment, extension, renewal or replacement of the
Maker's $1,700,000.00 promissory note to the Bank dated January 29,
1999.
The extensions of credit under this Note are made under the following Section of
the Minnesota Statutes:
X 47.59
[ ] 334.01
[ ] 47.20 and 47.21
[ ] 47.59
At the option of the holder of this Note, any payment under this Note
may be applied first to the payment of charges, fees and expenses (other than
principal and interest) under this Note and any other agreement or writing in
connection with this Note, second to the payment of interest accrued through the
date of payment, and third to the payments of principal under this Note in
inverse order of maturity. Also, at the option of the holder of this Note, if
there is any overpayment of interest under this Note, the holder may hold the
excess and apply it to future interest accruing under this Note. The Maker
represents, warrants, certifies to the Bank and agrees that all advances under
this Note shall be used solely for business purposes.
The occurrence of any of the following events shall constitute an Event
of Default under this Note:
(i) any breach or default in the payment of this Note; or
(ii) any breach or default under the terms of any other note,
obligation, mortgage, assignment, guaranty, other agreement,
or other writing heretofore, herewith or hereafter existing to
which the Maker or any endorser, guarantor or surety of this
Note or any other person or entity providing security for this
Note or for any guaranty of this Note is a party; or
(iii) the insolvency, death, dissolution, liquidation, merger or
consolidation of any such Maker, endorser, guarantor, surety
or other person or entity; or
(iv) any appointment of a receiver, trustee or similar officer of
any property of any such Maker, endorser, guarantor, surety or
other person or entity; or
(v) any assignment for the benefit of creditors of any such Maker,
endorser, guarantor, surety or other person or entity; or
(vi) any commencement of any proceeding under any bankruptcy,
insolvency, receivership, dissolution, liquidation or similar
law by or against any such Maker, endorser, guarantor, surety
or other person or entity; or
(vii) the sale, lease or other disposition (whether in one or more
transactions) to one or more persons or entities of all or a
substantial part of the assets of any such Maker, endorser,
guarantor, surety or other person or entity; or
(viii) any such Maker, endorser, guarantor, surety or other person or
entity takes any action to go out of business, or to revoke or
terminate any agreement, liability or security in favor of the
holder of this Note; or
(ix) the entry of any judgment or other order for the payment of
money in the amount of $10,000.00 or more against any such
Maker, endorser, guarantor, surety or other person or entity;
or
(x) the issuance or levy of any writ, warrant, attachment,
garnishment, execution or other process against any property
of any such Maker, endorser, guarantor, surety or other person
or entity; or
(xi) the attachment of any tax lien to any property of any such
Maker, endorser, guarantor, surety or other person or entity;
or
(xii) any statement, representation or warranty made by any such
Maker, endorser, guarantor, surety or other person or entity
(or any representative of any such Maker, endorser, guarantor,
surety or other person or entity) to the holder of this Note
at any time shall be incorrect or misleading in any material
respect when made; or
(xiii) there is a material adverse change in the condition (financial
or otherwise), business or property, of any such Maker,
endorser, guarantor, surety or other person or entity; or
(xiv) the holder of this Note shall in good faith believe that the
prospect of due and punctual payment or performance of this
Note or the due and punctual payment or performance of any
other note, obligation, mortgage, assignment, guaranty, or
other agreement heretofore, herewith or hereafter given to or
acquired by the holder of this Note in connection with this
Note is impaired.
Upon the commencement of any proceeding under any bankruptcy law by or
against any such Maker, endorser, guarantor, surety or other person or entity,
the unpaid principal balance of this Note plus accrued interest and all other
charges, fees and expenses under this Note shall automatically become
immediately due and payable in full, without any declaration, presentment,
demand, protest, or other notice of any kind. Upon the occurrence of any other
Event of Default and at any time thereafter, the then holder of this Note may,
at its option, declare this Note to be immediately due and payable and thereupon
the unpaid principal balance of this Note plus accrued interest and all other
charges, fees and expenses under this Note shall automatically become due and
payable in full, without any presentment, demand, protest or other notice of any
kind.
The Maker: (i) waives demand, presentment, protest, notice of protest,
notice of dishonor and notice of nonpayment of this Note; (ii) agrees to
promptly provide the holder of this Note from time to time with the Maker's
financial statements and such other information respecting the financial
condition, business and property of the Maker as the holder of this Note may
request, in form and substance acceptable to the holder of this Note; (iii)
agrees that when or at any time after this Note becomes due the holder of this
Note may offset or charge the full amount owing on this Note against any account
then maintained by the Maker with the holder of this Note without notice; (iv)
agrees to pay on demand all fees, costs and expenses of the holder of this Note
in connection with this Note and any transactions and matters relating to this
Note, including but not limited to audit fees and expenses and reasonable
attorneys' fees and legal expenses, plus interest on such amounts at the rate
set forth in this Note; and (v) consents to the personal jurisdiction of the
state and federal courts located in the State of Minnesota in connection with
any controversy related in any way to this Note or any transaction or matter
relating to this Note, waives any argument that venue in such forums is not
convenient, and agrees that any litigation initiated by the Maker against the
Bank or any other holder of this Note relating in any way to this Note or any
transaction or matter relating to this Note, shall be venued in either the
Minnesota District Court of the county where the Bank is located, or the United
States District Court, District of Minnesota. Interest on any amount under this
Note shall continue to accrue, at the option of the holder of this Note, until
such holder receives final payment of such amount in collected funds in form and
substance acceptable to such holder.
No waiver of any right or remedy under this Note shall be valid unless
in writing executed by the holder of this Note, and any such waiver shall be
effective only in the specific instance and for the specific purpose given. All
rights and remedies of the holder of this Note shall be cumulative and may be
exercised singly, concurrently or successively. The Maker, if more than one,
shall be jointly and severally liable under this Note, and the term "Maker",
wherever used in this Note, shall mean the Maker or any one or more of them. All
references in this Note to the holder of this Note shall mean the Bank and any
and all other present and future holders of this Note. This Note shall bind the
Maker and the heirs, representatives, successors and assigns of the Maker. This
Note shall benefit the holder of this Note and its successors and assigns. This
Note shall be governed by and construed in accordance with the internal laws of
the State of Minnesota (excluding conflict of law rules).
THE MAKER REPRESENTS AND WARRANTS TO THE BANK AND AGREES THAT THE MAKER HAS READ
ALL OF THIS NOTE AND UNDERSTANDS ALL OF THE PROVISIONS OF THIS NOTE.
Address of Maker: Maker:
0000 Xxxxxxxxx Xxxxxxx Spanlink Communications, Inc.
Xxxxxxxxxxx, XX 00000
Telephone: 000-000-0000
By: /s/ Xxxxxxx X. Xxxxxx
Title: Vice President and Chief
Financial Officer
AMENDMENT TO NOTE AND LETTER AGREEMENT
This Agreement is made as of 15th day of August, 1999, by and between MARQUETTE
CAPITAL BANK, N.A., a national banking association, having its principal office
at 4000 Xxxx Xxxxxxxx Plaza, Sixty South Sixth Street, Minneapolis, MN 55480
(the "Bank") and SPANLINK COMMUNICATIONS INC., a Minnesota Corporation (the
"Borrower").
RECITALS
A. The Borrower executed and delivered to the Bank that certain Letter
Agreement, dated April 30, 1999 (the "Letter Agreement") pursuant to
which agreements were made between the Borrower and the Bank regarding
advances under the following promissory note:
$1,700,000 Revolving Promissory Note dated April 30, 1999,
amended July 6, 1999 ("Revolving Note");
B. The Borrower and the Bank have determined that it is desirable to
extend the maturity of the Revolving Note.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. The maturity date of the Revolving Note is hereby extended to April 30, 2000.
2. Section 4a of the Letter Agreement is amended to read as follows:
a. "Borrowing Base" means the sum of 75% of Eligible Accounts
Receivable, per Borrowing Base Certificate attached hereto.
3. The Revolving Note and Letter Agreement are amended only to the extent
necessary to reflect the changes set forth herein.
IN WITNESS WHEREOF, the parties hereto have each duly executed this Agreement
effective as of the day and year first above written.
MARQUETTE CAPITAL BANK, N.A. SPANLINK COMMUNICATIONS INC.
By: /s/ Xxxxxxxx Xxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxxx Xxxx Xxxxx Xxxxxxx X. Xxxxxx
Its Vice President Its Vice President
