BUSINESS CREDIT NOTE
Due December 1, 1999 $510,000.00
Note No. ___________ Date: March 27, 1996
Account No. 0000000 Indianapolis, Indiana
Promise to Pay: On or before December 31, 1999 for value received, the
undersigned MADE2MANAGE SYSTEMS, INC. (the "Borrower") promises to pay to NBD
Bank, N.A., a national banking association (the "Bank") or order, at any office
of the Bank in the State of Indiana the sum of Five Hundred Ten Thousand and
00/100 Dollars ($510,000.00) plus interest computed on the basis of the actual
number of days elapsed in a year of 360 days at:
a per annum rate equal to the rate announced from time to time by the Bank
as its "prime" rate (the "Note Rate"), which rate may not be the lowest
rate charged by the Bank to any of its customers, plus;
(i) 1.50% from the date hereof until June 30, 1996, and;
from and after July 1, 1996, a per annum rate equal to the rate announced
from time to time by the Bank as its "prime" rate (the "Note Rate"), which
rate may not be the lowest rate charged by the Bank to any of its
customers, plus;
(i) 1.50% if the "Leverage Ratio" as defined in the Credit Agreement is
greater than or equal to 2.51 to 1.00;
(ii) 1.25% if the "Leverage Ratio" as defined in the Credit Agreement is
between 2.11 to 1.00 and 2.50 to 1.00;
(iii) 1.00% if the "Leverage Ratio" as defined in the Credit Agreement is
less than or equal to 2.10 to 1.00;
until maturity, whether by acceleration or otherwise, and at the rate of 3%
per annum above the Note Rate on overdue principal from the date when due
until paid. Each change in the "prime" rate will immediately change the
Note Rate.
In no event shall the interest rate exceed the maximum rate allowed by law; any
interest payment which would for any reason be unlawful under applicable law
shall be applied to principal. Payments may, at the option of the Bank, be
applied first to charges, then to interest and then to principal. Acceptance by
the Bank of any payment which is less than payment in full of all amounts due
and owing at such time shall not constitute a waiver of the Bank's right to
receive payment in full at such or any other time.
The Borrower will pay this sum in 8 consecutive monthly installments of interest
only on the 1st day of each month, commencing May 1, 1996, and 35 consecutive
monthly installments equal to
one/thirty-sixth of the outstanding principal balance as of December 31, 1996,
plus interest, commencing January 1, 1997 until December 1, 1999 at which time
the balance plus accrued interest then unpaid shall be due and payable
immediately.
LATE FEE: If any payment is not received by the Bank within fifteen (15) days
after its due date, the Bank may assess and the Borrower agrees to pay a late
fee equal to the lesser of five percent (5%) of the past due amount or One
Hundred and 00/100 Dollars ($100.00).
PREPAYMENT: All prepayments shall be applied to installments of principal in
their inverse order of maturity, and no prepayments shall reduce the dollar
amount of fixed principal installments required to be paid, until this Note is
paid in full.
AGREEMENT: This Note evidences a debt which is subject to the additional terms
and conditions of a Credit Agreement between the Borrower and the Bank dated as
of June 9, 1995, and any amendments.
SECURITY: To secure the payment of this Note and any other present or future
liability of the Borrower to the Bank, whether several, joint, or joint and
several, the Borrower pledges and grants to the Bank a continuing security
interest in the following described property and all of its additions,
substitutions, increments, proceeds and products, whether now owned or later
acquired (the "Collateral"):
1. All securities and other property of the Borrower in the custody,
possession or control of the Bank (other than property held by the Bank
solely in a fiduciary capacity);
2. All property or securities declared or acknowledged to constitute security
for any past, present or future liability of the Borrower to the Bank;
3. All balances of deposit accounts of the Borrower with the Bank.
4. The following additional property: All equipment.
SETOFF: The Bank has the right at any time to apply its own debt or liability to
the Borrower or to any other party liable on this Note in whole or partial
payment of this Note or other present or future liabilities of the Borrower to
the Bank, without any requirement of mutual maturity.
RELATED DOCUMENTS: The terms and provisions of any loan agreement, mortgage,
security agreement or any other document executed as part of the loans evidenced
by this Note are incorporated by reference and made part of this Note.
REPRESENTATIONS BY BORROWER: Each Borrower represents that: (a) the execution
and delivery of this Note and the performance of the obligations it imposes do
not violate any law, conflict with any agreement by which it is bound, or
require the consent or approval of any governmental authority or other third
party; (b) this Note is a valid and binding agreement, enforceable according to
its terms; and (c) all balance sheets, profit and loss statements, and other
financial statements furnished to the Bank are accurate and fairly reflect the
financial condition of the organizations and persons to which they apply on
their effective dates, including contingent liabilities of every type, which
financial condition has not changed materially and adversely since those dates.
Each Borrower also represents that this note evidences a business loan exempt
from the Federal Truth In Lending Act (15 USC 1601, et seq.), the Federal
Reserve Bank's Regulation Z (12 CFR 226, et seq.), and the Indiana Uniform
Consumer Credit Code (IC 24-4.5-1-101, et seq.). Each Borrower, other than a
natural person, further represents that: (a) it is duly organized, existing and
in good standing pursuant to the laws under which it is organized, and (b) the
execution and delivery of this Note and the performance of the obligations it
imposes (i) are within its powers and have been duly authorized by all necessary
action of its governing body, and (ii) do not contravene the terms of its
articles of incorporation or organization, its by-laws, or any partnership,
operating or other agreement governing its affairs.
EVENTS OF DEFAULT/ACCELERATION: This Note shall become due immediately, without
notice, at the Banks option, if any of the following events occurs:
(1) The Borrower or any guarantor of this Note ("Guarantor") fails to pay
when due any amount payable under this Note or under any agreement or
instrument evidencing debt to any creditor.
(2) The Borrower or any Guarantor (a) fails to observe or perform any other
term of this Note; (b) makes any materially incorrect or misleading
representation, warranty, or certificate to the Bank; (c) makes any
materially incorrect or misleading representation in any financial
statement or other information delivered to the Bank; or (d) defaults
under the terms of any agreement or instrument relating to any debt for
borrowed money (other than the debt evidenced by this Note) such that the
creditor declares the debt due before its maturity.
(3) There is a default under the terms of any loan agreement, mortgage,
security agreement, or any other document executed as part of the loan
evidenced by this Note or any guaranty of the loan evidenced by this Note
becomes unenforceable in whole or in part, or any Guarantor fails to
promptly perform under its guaranty.
(4) A "reportable event" (as defined in the Employee Retirement Income
Security Act of 1974 as amended) occurs that would permit the Pension
Benefit Guaranty Corporation to terminate any employee benefit plan of
the Borrower or any affiliate of the Borrower.
(5) The Borrower or any Guarantor becomes insolvent or unable to pay its
debts as they become due.
(6) The Borrower or any Guarantor (a) makes an assignment for the benefit of
creditors; (b) consents to the appointment of a custodian, receiver, or
trustee for itself or for a substantial part of its assets; or (c)
commences any proceeding under any bankruptcy, reorganization,
liquidation, insolvency or similar laws of any jurisdiction.
(7) A custodian, receiver, or trustee is appointed for the Borrower or any
Guarantor or for a substantial part of its assets without its consent and
is not removed within 60 days after the appointment.
(8) Proceedings are commenced against the Borrower or any Guarantor under any
bankruptcy, reorganization, liquidation, or similar laws of any
jurisdiction, and they remain undismissed for 60 days after commencement;
or the Borrower or Guarantor consents to such proceedings.
(9) Any judgment is entered against the Borrower or any Guarantor, or any
attachment, levy, or garnishment is issued against any property of the
Borrower or any Guarantor.
(10) The Borrower or any Guarantor dies.
(11) The Borrower or any Guarantor, without the Bank's written consent, (a) is
dissolved, (b) merges or consolidates with any third party, (c) leases,
sells or otherwise conveys a material part of its assets or business
outside the ordinary course of its business, (d) leases, purchases, or
otherwise acquires a material part of the assets of any other corporation
or business entity, except in the ordinary course of its business, or (e)
agrees to do any of the foregoing (notwithstanding the foregoing, any
subsidiary may merge or consolidate with any other subsidiary, or with
the Borrower, so long as the Borrower is the survivor).
(12) There is a substantial change in the management or ownership or the
existing or prospective financial condition of the Borrower or any
Guarantor which the Bank in good faith determines to be materially
adverse.
(13) The Bank in good xxxxx xxxxx itself insecure.
REMEDIES: If this Note is not paid at maturity by demand, whether by
acceleration or otherwise, the Bank shall have all of the rights and remedies
provided by any law or agreement. Any requirement of reasonable notice shall be
met if the Bank sends the notice to the Borrower at least seven (7) days prior
to the date of sale, disposition or other event giving rise to the required
notice. The Bank is authorized to cause all or any part of the Collateral to be
transferred to or registered in its name or in the name of any other person, or
business entity, with or without designation of the capacity of such nominee.
The Borrower is liable for any deficiency remaining after disposition of any
Collateral. The Borrower is liable to the Bank for all reasonable costs and
expenses of every kind incurred in the making or collection of this Note,
including, without limitation, reasonable attorneys' fees and court costs.
These costs and expenses include without limitation any costs or expenses
incurred by the Bank in any bankruptcy, reorganization, insolvency or other
similar proceeding.
WAIVER: Each endorser and any other party liable on this Note severally waives
demand, presentment, notice of dishonor and protest, and consents to any
extension or postponement of time of its payment without limit as to the number
or period, to any substitution, exchange or release of all or part of the
Collateral, to the addition of any party, and to the release or discharge
of, or suspension of any rights and remedies against, any person who may be
liable for the payment of this Note. No delay on the part of the Bank in the
exercise of any right or remedy operates as a waiver. No single or partial
exercise by the Bank of any right or remedy precludes any other future exercise
of it or the exercise of any other right or remedy. No waiver or indulgence by
the Bank of any default is effective unless it is in writing and signed by the
Bank, nor does a waiver on one occasion bar or waive that right on any future
occasion.
MISCELLANEOUS: The Borrower, if more than one, shall be jointly and severally
liable for the obligations represented by this Note, and the term "Borrower"
means any one or more of them, and the receipt of value by any one of them
constitutes receipt of value by the others. This Note binds the Borrower and
its successors, and inures to the benefit of the Bank, its successors and
assigns. Any reference to the Bank includes any holder of this Note. This Note
is delivered in the State of Indiana and governed by Indiana law. Section
headings are for convenience of reference only and do not affect the
interpretation of this Note. This Note and all related loan documents embody
the entire agreement between the Borrower and the Bank regarding the terms of
the loan evidenced by this Note, and supersede all oral statements and prior
writings relating to that loan.
WAIVER OF JURY TRIAL: The Bank and the Borrower, after consulting or having had
the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in any
litigation based upon or arising out of this Note or any related instrument or
agreement, or any of the transactions contemplated by this Note, or any course
of conduct, dealing, statements (whether oral or written), or actions of either
of them. Neither the Bank nor the Borrower shall seek to consolidate, by
counterclaim or otherwise, any action in which a jury trial has been waived with
any other action in which a jury trial cannot be or has not been waived. These
provisions shall not be deemed to have been modified in any respect or
relinquished by either the Bank or the Borrower except by a written instrument
executed by both of them.
Address: Borrower
0000 Xxxxxx Xxxx XXXX0XXXXXX SYSTEMS, INC.
Indianapolis, IN 46268
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx President & CEO
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Printed Name Title
Tax I.D. Number: 00-0000000
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FOR OFFICE USE ONLY:
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Auth #: Note #:
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OFFICER INITIALS OFFICER INITIALS
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Officer # 30057 Officer #
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