Exhibit 10.2
RENEWAL
REVOLVING NOTE
$4,000,000.00 Date: August 21, 2000
Minneapolis, Minnesota Due: July 31, 2001
For value received, the undersigned, ACI TELECENTRICS, INCORPORATED, a
Minnesota corporation, hereby promises to pay to the order of National City Bank
of Minneapolis, a national banking association (the "Lender") at its main office
in Minneapolis, Minnesota or at any other place designated at any time in
writing by the holder hereof, in lawful money of the United States of America,
the principal sum of Four Million and No/100 Dollars ($4,000,000.00) or so much
thereof as is advanced and remains outstanding hereunder on July 31, 2001, the
due date, as shown by the Bank's liability record, together with interest
(calculated on the basis of actual days elapsed in a 360-day year) on the unpaid
principal hereof, from the date hereof until this Note is fully paid at an
annual rate equal to the rate of interest established by and publicly announced
from time to time by Lender as its Base Rate, with the understanding that Lender
may lend to its customers at rates that are above or below the Base Rate. Each
change in the interest rate hereon shall become effective on the day the
corresponding change in the Base Rate becomes effective if interest is
calculated on the Base Rate. The Loan Agreement contains provisions for
increases in the interest rate payable hereunder upon the happening of certain
events set forth in the Loan Agreement. Provided, however, that if the principal
amount of this Note shall be less than $100,000 on the due date, this Note shall
bear the same interest rate after it becomes due as was in effect on such due
date. As used herein, "due date" means the maturity date hereof (whether it be
the stated maturity date or such earlier date by reason of acceleration) or, if
this Note is payable upon demand, the date of demand.
Interest shall be payable monthly, on the 1st day of each month
commencing August , 2000 and on the 1st day of each succeeding month thereafter
until this Note is paid in full. This Note is secured by a security interest in
all accounts receivable, work in process, furniture, fixtures and equipment,
general intangibles, and other property of the Borrower all as described in the
Security Agreement between the Borrower and Lender dated January 30, 1998.
If interest hereon is not paid when due, or if any other indebtedness
of the undersigned to Lender is not paid when due, or if the undersigned is in
default under any other agreement between the undersigned and Lender, or if a
garnishment summons or a writ of attachment is issued against or served upon
Lender for the attachment of any property of the undersigned in Lender's
possession or any indebtedness owing to the undersigned, or if the undersigned
shall submit to Lender any credit application or financial statement containing
information which shall prove to be incorrect in any respect when made, or if
the undersigned shall fail to pay when due any indebtedness the undersigned may
owe for money borrowed, of if the holder shall at any time in good faith believe
that the prospect of due and punctual payment of the Note is materially
impaired, then, in any such event, the holder hereof may, at its option, declare
this Note to be immediately due and payable, together with all unpaid interest
accrued hereon, without notice or demand; provided, however, that if this Note
is payable upon demand, nothing herein contained shall preclude or limit the
holder hereof from demanding payment of this Note at any time and for any
reason, without notice.
This Note is the Revolving Note referred to in that certain Second
Amendment to Amended and Restated Revolving Credit Loan Agreement between Lender
and the Borrower dated of even date herewith ("Loan Agreement") and has been
executed by the Borrower and delivered and issued by Lender in
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accordance with the Loan Agreement and Lender is entitled to all the benefits,
rights and privileges contained in the Loan Agreement. This Note is given in
replacement and renewal of, and not in satisfaction of or substitution for, a
certain revolving note dated April 30, 2000, in the original principal amount of
$2,000,000.
This Note shall also become automatically due and payable (including
unpaid interest accrued hereon) without notice or demand should a petition be
filed by or against the undersigned under the United States Bankruptcy Code, or
if a trustee, receiver or similar officer is appointed for the undersigned or
for the undersigned's property. If this Note is not paid on the due date, the
bank shall have the right to set off the indebtedness evidenced by this Note
against any indebtedness of the Bank to the undersigned. The holder hereof may
at any time renew this Note or extend its maturity date for any period and
release any security for, or any part to, this Note, all without notice to or
consent of and without releasing any accommodation maker, endorser or guarantor.
The undersigned agrees to pay all costs of collection, including attorneys' fees
and legal expenses, in the event this Note is not paid when due whether suit is
commenced or not, including costs and expenses in litigation, bankruptcy, or
insolvency proceedings. Presentment or other demand for payment, notice of
dishonor and protest are hereby waived by the undersigned. This Note shall be
governed by the substantive laws of the State of Minnesota, except insofar as
the Bank may rely on the laws of the United States to justify the interest rate
charged hereunder. The undersigned hereby irrevocably submits to the
jurisdiction of the Minnesota District Court, Fourth Division, and the Federal
District Court, District of Minnesota, Fourth Division, over any action or
proceeding arising out of or relating to this Note and agrees that all claims in
respect of such action or proceeding may be heard and determined in any such
court.
ACI TELECENTRICS, INCORPORATED
/s/ Rick Diamond
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By: Rick Diamond
Its: CEO
/s/ Gary B Cohen
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By: Gary Cohen
Its: President
ADDRESS OF THE BORROWER:
3100 West Lake Street
Minneapolis, Minnesota 55416-4510
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SECOND AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT LOAN
AGREEMENT ("Amendment") is dated as of August 21 , 2000 by and between ACI
TELECENTRICS, INCORPORATED, a Minnesota corporation (the "Borrower") and
NATIONAL CITY BANK OF MINNEAPOLIS, a national banking association (the
"Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender entered into a certain Revolving
Credit Loan Agreement dated as of January 30, 1998 and a certain Amended and
Restated Resolving Credit Loan Agreement dated April 30, 1999 (collectively, the
"Loan Agreement"), whereby the Lender agreed to make Advances to the Borrower in
the original principal amount of up to $2,000,000.00 ("Loan"); and
WHEREAS, the Borrower and the Lender entered into a certain First
Amendment to Amended and Restated Revolving Credit Loan Agreement dated as of
April 30, 2000, whereby the Lender agreed to amend the Loan Agreement and to
extend the Termination Date to April 30, 2001: and
WHEREAS, the Borrower has requested the Lender increase the maximum
amount of the Loan from $2,000,000 to $4,000,000, to extend the Termination Date
of the Loan to July 31, 2001, and to modify certain other provisions of the Loan
Agreement; and
WHEREAS, the Lender has agreed to amend the Loan Agreement and extend
the Termination Date upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
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1. Capitalized Terms. All capitalized terms used herein and as
otherwise defined herein shall have the meanings ascribed to them in the Loan
Agreement.
2. Amendment. The Loan Agreement is hereby amended as follows:
a. The definition of "Base Rate" as set forth in Section
1.01 of the Loan Agreement is hereby deleted in its
entirety and replace with the following:
"Base Rate" means the fluctuating annual rate of
interest established by and publicly announced from
time to time by National City Bank of Minneapolis as
its "Base Rate" with the understanding that the
Lender may lend to its customers at rates that are
above or below the Base Rate or, if Lender ceases to
announce a rate so designated, any similar successor
rate designated by Lender."
b. "Commitment" as set forth in Section 1.01 of the Loan
Agreement is hereby amended to read as follows:
"Commitment" means $4,000,000.
c. The definition of "Eligible Accounts" as forth in
Section 1.01 of the Loan Agreement is hereby amended
by adding the following:
"(8) Ineligible accounts shall also include credits
on accounts greater than 90 days past invoice date or
60 days past due."
d. The definition of "LIBOR Rate" as set forth in
Section 1.01 of the Loan Agreement is hereby deleted
in its entirety.
e. The definition of "Termination Date" as set forth in
Section 1.01 of the Loan Agreement is hereby amended
to read as follows:
"Termination Date" means July 31, 2001.
f. The definition of "Revolving Note" or "Note" as set
forth in Section 1.01 of the Loan Agreement is hereby
amended to read as follows:
"Revolving Note" or "Note" means the Renewal
Revolving Note of the Borrower dated as of August 21,
2000, payable to the order of the Lender, in
substantially the form of Exhibit A attached hereto.
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g. Section 2.03 of the Loan Agreement shall be deleted
in its entirety and replaced with the following
language:
"Section 2.03 Interest under the Revolving Note. The
principal balance of the Advances outstanding from
time to time during any month shall bear interest
(computed on the basis of actual days elapsed in a
360-day year) at the Base Rate in effect from time to
time."
h. Section 5.08 of the Loan Agreement shall be deleted
in its entirety and replaced with the following
language:
"Section 5.08 Ratio of Debt to Tangible Net Worth.
The Borrower will maintain at all times its Ratio of
Debt to Tangible Net Worth at not more than 1.75 to 1
during the term of this Agreement."
i. Section 5.09 of the Loan Agreement shall be deleted
in its entirety and replaced with the following
language:
"Section 5.09 Tangible Net Worth. The Borrower will
maintain at all times its Tangible Net Worth at an
amount not less than Five Million and No/100
Dollars($5,000,000.00)."
j. Section 6.10 of the Loan Agreement shall be deleted
in its entirety and replaced with the following
language:
"Section 6.10 Capital Expenditures. For each fiscal
year of the Borrower during the term of the Loan
Agreement, the Borrower shall not incur any Capital
Expenditures in excess of $1,000,000: notwithstanding
the foregoing, the Borrower shall have the right to
incur annual Capital Expenditures up to the amount of
$4,000,000 provided that any Capital Expenditures in
excess of $1,000,000 are financed by economic
development or government grant monies and Borrower
provides or has provided evidence reasonably
satisfactory to Lender of the existence of such grant
monies. For purposes of this Agreement, "Capital
Expenditures" means all of the Borrower's
expenditures for any assets, or for improvements,
replacements, substitutions or additions therefor or
thereto, which are or will be capitalized on the
Borrower's balance sheet and which, in accordance
with GAAP, are required to be included in or
reflected by the property, plant, equipment or
similar fixed asset account or reflected in such
balance sheet, and shall include, without limitation,
capitalized lease obligation. Any Capital
Expenditures in excess of $4,000,000 shall require
written approval of the Lender.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
not become effective until, and shall become effective when, each of the
following provisions shall have been fulfilled:
a. The Lender shall have received this Amendment, duly
executed by the Borrower;
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b. The Lender shall have received a signed copy of the
certificate of the Secretary or Assistant Secretary
of the Borrower which shall certify the names of the
officers of the Borrower authorized to sign this
Amendment and the other documents or certificates to
be delivered pursuant to the Loan Agreement and this
Amendment by the Borrower and to request Advances
under Section 2.01. The Lender may conclusively rely
on such certificate until it shall receive a further
certificate of the Secretary or Assistant Secretary
of the Borrower canceling or amending the prior
certificate and submitting the signatures of the
officers named in such further certificate.
4. Effect of Amendment; Representation and Warranties; No Waiver. The
Lender and the Borrower agree that after this Amendment becomes effective, the
Loan Agreement, as hereby amended, shall remain in full force and effect. The
Borrower warrants and represents that on and as of the date hereof and after
giving effect to this Amendment, (i) all of the representations and warranties
contained in the Loan Agreement as hereby amended are correct and complete in
all material respects as of the date hereof, as though made on and as of such
date, except to the extent such representations and warranties specifically
relate to an earlier date and (ii) no Default or Event of Default has occurred
or is continuing under the Loan Agreement, as amended hereby, and no event has
occurred which, with the passage of time or the giving of notice, would mature
into a Default or an Event of Default. The Borrower represents and warrants that
the Borrower has the power and legal right and authority to enter into this
Amendment, and neither this Amendment nor the agreements contained herein or
therein contravene or constitute a default under any agreement, instrument or
indenture to which the Borrower is a party or signatory or a provision of the
Borrower's Articles of Incorporation, By-Laws, or, to the best of the Borrower's
knowledge, any other agreement or requirement of law. The Borrower represents
and warrants that no consent, approval or authorization of or registration or
declaration with any Person, including but not limited to, any governmental
authority, is required in connection with the execution and delivery by the
Borrower of this Amendment, or the performance of the obligations of the
Borrower herein or therein described.
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5. Reference. From and after the effective date of this Amendment, each
reference in the Loan Agreement to "this Loan Agreement", this "Agreement",
"herein", "hereof", "hereby" or words of like import referring to the Loan
Agreement and each reference in any other document delivered in connection with
the Loan Agreement to the "Loan Agreement", "therein", "thereof", "thereby" or
words of like import referring to the Loan Agreement, shall mean and be a
reference to the Loan Agreement as amended by this Amendment, and each reference
in the Revolving Note, the Security Agreement, and any and all other documents
and agreements entered into with respect to the obligations under the Loan
Agreement to "the Loan Agreement" shall mean and be a reference to the Loan
Agreement as amended by this Amendment.
6. Incorporation of Loan Agreement and other Loan Documents by
Reference; Ratification of Loan Documents. Except as expressly modified under
this Amendment, all of the terms, conditions, provisions, agreements,
requirements, promises, obligations, duties, covenants and representations of
the Borrower under the Loan Agreement, the Revolving Note, the Security
Agreement, and any and all other documents and agreements entered into with
respect to the obligations under the Loan Agreement are incorporated herein by
reference and are hereby ratified by the Borrower.
7. Merger and Integration; Superseding Effect. The Loan Agreement, as
amended and modified by this Amendment, from and after the date hereof, embodies
the entire agreement
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and understanding between the parties hereto and supersedes and has merged into
it all prior oral and written agreements on the same subjects by and between the
parties hereto with the effect that this Amendment shall control.
8. Expenses. As provided in Section 8.04 of the Loan Agreement, as
amended hereby, the Borrower agrees to pay all of the expenses, including
reasonable attorneys fees and expenses, incurred by the Lender in connections
with this Amendment.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of
the day and year first above written.
ACI TELECENTRICS, INCORPORATED, NATIONAL CITY BANK OF
a Minnesota corporation MINNEAPOLIS, a national
banking association
By: /s/ Rick Diamond By: /s/ Connie B. Tran
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Title: CEO Its: Assistant Vice President
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By: /s/ Gary B. Cohen
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Title: President
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