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EXHIBIT 10.15
BUSINESS LOAN AGREEMENT
This Business Loan Agreement ("Agreement") is made between Bank of America NT &
SA doing business as Seafirst Bank ("Bank") and Telect, Inc. ("Borrower") with
respect to the following:
PART A
1. Line of Credit #8806237054-331. Subject to the terms of this Agreement,
Bank will make loans to Borrower under a [X] revolving [ ] non-revolving
line of credit as follows:
(a) TOTAL AMOUNT AVAILABLE: $20,000,000.00
[ ] Subject to the provisions of any accounts receivable and/or
inventory borrowing plan required herein; it is expressly
understood that collateral ineligible for borrowing purposes is
determined solely by Bank.
[ ] Subject to (describe): N/A.
(b) AVAILABILITY PERIOD: March 1, 1999 through September 1, 1999.
However, if loans are made and/or new promissory notes executed
after the last date, such advances will be subject to the terms
of this Agreement until repaid in full unless a written
statement signed by the Bank and Borrower provides otherwise, or
a replacement loan agreement is executed. The making of such
additional advances alone, however, does not constitute a
commitment by the bank to make any further advances or extend
the availability period.
(c) INTEREST RATE:
[X] Banks publicly announced Reference Rate plus -0- percent
of the principal per annum. "Reference Rate" means the
rate of interest publicly announced from time to time by
Bank in San Francisco, California as its "Reference
Rate." The Reference Rate is set based on various
factors including Bank's cost and desired return,
general economic conditions, and other factors, and is
used as a reference point for pricing some loans. Bank
may price loans to its customers at, above, or below the
Reference Rate. Any change in the Reference Rate shall
take effect at the opening of business on the day
specified in the public announcement of a change in the
Reference Rate. [X] or, LIBOR plus 190 basis points
fixed for 30 to 180 days.
(d) INTEREST RATE BASIS. All interest will be calculated at the per
annum interest rate based on 360-day period and applied to the
actual number of days elapsed.
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(e) REPAYMENT: At the times and in amounts as set forth in note(s)
required under Part B Article 1 of this Agreement.
(f) LOAN FEE: N/A payable on N/A.
(g) FEE ON UNUTILIZED PORTION OF LINE: On N/A and every N/A
thereafter, Borrower shall pay a fee based upon the average
daily unused portion of the line of credit. This fee will be
calculated as follows: N/A
(h) OTHER FEE(S) (IDENTIFY): N/A
(i) COLLATERAL. This revolving line of credit shall be secured by a
security interest, which is hereby granted, in favor of Bank on
the following collateral: N/A. Also, collateral securing other
loans with Bank may secure this loan.
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PART B
1. Promissory Note(s). All loans shall be evidenced by promissory notes in
a form and substance satisfactory to Bank.
2. Conditions to Availability of Loan/Line of Credit. Before Bank is
obligated to disburse/make any advance, or at any time thereafter which
Bank deems necessary and appropriate, Bank must receive all of the
following, each of which must be in form and substance satisfactory to
Bank ("loan documents"):
2.1 Original, executed promissory note(s);
2.2 Original executed security agreement(s) and/or deed(s) of trust
covering the collateral described in Part A:
2.3 All collateral described in Part A in which Bank wishes to have
a possessory security interest;
2.4 Financing statement(s) executed by Borrower;
2.5 Such evidence that Bank may deem appropriate that the security
interests and liens in favor of Bank are valid, enforceable, and
prior to the rights and interests of others except those
consented to in writing by Bank;
+2.6 The following guaranty(ies) in favor of the Bank: N/A
+2.7 Subordination agreement(s) in favor of Bank executed by: N/A
2.8 Evidence that the execution, delivery, and performance by
Borrower of this Agreement and the execution, delivery, and
performance by Borrower and any corporate guarantor or corporate
subordinating creditor of any instrument or agreement required
under this Agreement, as appropriate, have been duly authorized;
2.9 Any other document which is deemed by the Bank to be required
from time to time to evidence loans or to effect the provisions
of this Agreement;
2.10 If requested by Bank, a written legal opinion expressed to Bank,
of counsel for Borrower as to the matters set forth in sections
3.1 and 3.2 and to the best of such counsel's knowledge after
reasonable investigation, the matters set forth in sections 3.3,
3.5, 3.6, 3.7, 3.9 and such other matters as the Bank may
reasonably request;
2.11 Pay or reimburse Bank for any out-of-pocket expenses expended in
making or administering the loans made hereunder including
without limitation attorney's fees (including allocation costs
of in-house counsel);
+2.12 Other (describe): N/A
3. Representations and Warranties. Borrower represents and warrants to
Bank, except as Borrower has disclosed to Bank in writing, as of the
date of this Agreement and hereafter so long as credit granted under
this Agreement is available and until full and final payment of all sums
outstanding under this Agreement and promissory notes that:
+3.1 Borrower is duly organized and existing under the laws of the
state of its organization as a:
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X Corporation ___ General Partnership ___ Limited Partnership
____ Sole Proprietorship ____ dba
Borrower is properly licensed and in good standing in each state
in which Borrower is doing business and Borrower has qualified
under, and complied with, where required, the fictitious or
trade name statutes of each state in which Borrower is doing
business, and Borrower has obtained all necessary government
approvals for its business activities; the execution, delivery,
and performance of this Agreement and such notes and other
instruments required herein are within Borrower's powers, have
been duly authorized, and, as to Borrower and any guarantor, are
not in conflict with the terms of any charter, bylaws, or other
organization papers of Borrower, and this Agreement, such notes
and the loan documents are valid and enforceable according to
their terms;
3.2 The execution, delivery, and performance of this Agreement, the
loan documents and any other instruments are not in conflict
with any law or any indenture, agreement or undertaking to which
Borrower is a party or by which Borrower is bound or affected;
3.3 Borrower has title to each of the properties and assets as
reflected in its financial statements (except such assets which
have been sold or otherwise disposed of in the ordinary course
of business), and no assets or revenues of the Borrower are
subject to any lien except as required or permitted by this
Agreement, disclosed in its financial statements or otherwise
previously disclosed to Bank in writing;
3.4 All financial information, statements as to ownership of
Borrower and all other statements submitted by Borrower to Bank,
whether previously or in the future, are and will be true and
correct in all material respects upon submission and are and
will be complete upon submission insofar as may be necessary to
give Bank a true and accurate knowledge of the subject matter
thereof;
3.5 Borrower has filed all tax returns and reports as required by
law to be filed and has paid all taxes and assessments
applicable to Borrower or to its properties which are presently
due and payable, except those being contested in good faith;
3.6 There are no proceedings, litigation or claims (including unpaid
taxes) against Borrower pending or, to the knowledge of the
Borrower, threatened, before any court or government agency, and
no other event has occurred which may have a material adverse
effect on Borrower's financial condition;
3.7 There is no event which is, or with notice or lapse of time, or
both, would be, an Event of Default (as defined in Section 7)
under this Agreement;
+3.8 On the basis of a comprehensive review and assessment of
Borrower's systems and equipment and inquiry made of Borrower's
material suppliers, vendors and customers, Borrower reasonably
believes that the "Year 2000 problem" (that is, the inability of
computers, as well as embedded
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microchips in non-computing devices, to perform properly
date-sensitive functions with respect to certain dates prior to
and after December 31, 1999), including costs of remediation,
will not result in a material adverse change in the operations,
business, properties, condition (financial or otherwise) [or
prospects] of Borrower. Borrower has developed feasible
contingency plans adequately to ensure uninterrupted and
unimpaired business operation in the event of failure of its own
or a third party's systems or equipment due to the Year 2000
problem, including those of vendors, customers, and suppliers,
as well as a general failure of or interruption in its
communications and delivery infrastructure.
3.9 Borrower has exercised due diligence in inspecting Borrower's
properties for hazardous wastes and hazardous substances. Except
as otherwise previously disclosed and acknowledged to Bank in
writing; (a) during the period of Borrower's ownership of
Borrower's properties, there has been no use, generation,
manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or hazardous substance by any
person in, on, under or but any of Borrower's properties; (b)
Borrower has no actual or constructive knowledge that there has
been any use, generation, manufacture, storage, treatment,
disposal, release or threatened release of any hazardous waste
or hazardous substance by any person in, on, under or about any
of Borrower's properties by any prior owner or occupant of any
of Borrower's properties; and (c) Borrower has no actual or
constructive notice of any actual or threatened litigation or
claims of any kind by any person relating to such matters. The
terms "hazardous waste(s)," "hazardous substance(s),"
"disposal," "release," and "threatened release" as used in this
Agreement shall have the same meanings as set forth in the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as mended, 42 U.S.C. Section 9601, et
seq., the Superfund Amendments and Reauthorization Act of 1986,
as amended, Pub. L. No. 99-499, the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801, et seq.,
the Resource Conservation and Recovery Act, as amended, 49
U.S.C. Section 6901, et seq., or other applicable state or
federal laws, rules or regulations adopted pursuant to any of
the foregoing; and
+3.10 Each chief place of business of Borrower, and the office or
offices where Borrower keeps its records concerning any of the
collateral, is located at: N. 2111 Molter Rd., Liberty Lake, WA,
4. Affirmative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding under
this Agreement and promissory note(s) Borrower will:
+4.1 Use the proceeds of the loans covered by this Agreement only in
connection with Borrower's business activities and exclusively
for the following purposes: General Corporate Purposes.
+4.2 Maintain current assets in an amount at least equal to 1.5 times
current liabilities, and not less than $15,000,000. Current
assets and current
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liabilities shall be determined in accordance with generally
accepted accounting principles and practices, consistently
applied;
+4.3 Maintain a tangible net worth of at least $30,000,000 and not
permit Borrower's total indebtedness which is not subordinated
in a manner satisfactory to Bank to exceed 1.25 times Borrower's
tangible net worth. "Tangible net worth" means the excess of
total assets over total liabilities, excluding, however, from
the determination of total assets (a) all assets which should be
classified as intangible assets such as goodwill, patents,
trademarks, copyrights, franchises, and deferred charges
(including unamortized debt discount and research and
development costs), (b) treasury stock, (c) cash held in a
sinking or other similar fund established for the purpose of
redemption or other retirement of capital stock, (d) to the
extent not already deducted from total assets, reserves for
depreciation, depletion, obsolescence or amortization of
properties and other reserves or appropriations of retained
earnings which have been or should be established in connection
with the business conducted by the relevant corporation, and (e)
any revaluation or other write-up in book value of assets
subsequent to the fiscal year of such corporation last ended at
the date of this Agreement;
+4.4 Upon request Borrower agrees to insure and to furnish Bank with
evidence of insurance covering the life of Borrower (if an
individual) or the lives of designated partners or officers of
Borrower (if a partnership or corporation) in the amounts stated
below. Borrower shall take such actions as are reasonably
requested by Bank, such as assigning the insurance policies to
Bank or naming Bank as beneficiary and obtaining the insurer's
acknowledgment thereof, to provide that in the event of the
death of any of the named insureds the policy proceeds will be
applied to payment of Borrower's obligations owing to Bank;
Name: N/A Amount: N/A
Name: N/A Amount: N/A
+4.5 Promptly give written notice to Bank of: (a) all litigation and
claims made or threatened affecting Borrower where the amount is
$500,000 or more; (b) any substantial dispute which may exist
between Borrower and any governmental regulatory body or law
enforcement authority; (c) any Event of Default under this
Agreement or any other agreement with Bank or any other creditor
or any event which become an Event of Default; and (d) any other
matter which has resulted or might result in a material adverse
change in Borrower's financial condition or operations;
+4.6 Borrower shall as soon as available, but in any event within 150
days following the end of each Borrower's fiscal years and
within 60 day following the end of each quarter provide to Bank,
in a form satisfactory to Bank (including audited statements if
required at any time by Bank), such financial statements and
other information respecting the financial condition and
operations of Borrower as Bank may reasonably request;
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4.7 Borrower will maintain in effect insurance with responsible
insurance companies in such amounts and against such risks as is
customarily maintained by persons engaged in business similar to
that of Borrower and all policies covering property given as
security for the loans shall have loss payable clauses in favor
of Bank. Borrower agrees to deliver to Bank such evidence of
insurance as Bank may reasonably require and, within thirty (30)
days after notice from Bank, to obtain such additional insurance
with an insurer satisfactory to the Bank;
4.8 Borrower will pay all indebtedness taxes and other obligations
for which the Borrower is liable or to which its income or
property is subject before they shall become delinquent, except
any which is being contested by the Borrower in good faith;
4.9 Borrower will continue to conduct its business as presently
constituted, and will maintain and preserve all rights,
privileges and franchises now enjoyed, conduct Borrower's
business in an orderly, efficient and customary manner, keep all
Borrowers properties in good working order and condition, and
from time to time make all needed repairs, renewals or
replacements so that the efficiency of Borrower's properties
shall be fully maintained and preserved;
4.10 Borrower will maintain adequate books, accounts and records and
prepare all financial statements required hereunder in
accordance with generally accepted accounting principles and
practices consistently applied, and in compliance with the
regulations of any governmental regulatory body having
jurisdiction over Borrower or Borrower's business;
4.11 Borrower will permit representatives of Bank to examine and make
copies of the books and records of Borrower and to examine the
collateral of the Borrower at reasonable times;
4.12 Borrower will perform, on request of Bank, such acts as may be
necessary or advisable to perfect any lien or security interest
provided for herein or otherwise carry out the intent of this
Agreement;
4.13 Borrower will comply with all applicable federal, state and
municipal laws, ordinances, rules and regulations relating to
its properties, charters, businesses and operations, including
compliance with all minimum funding and other requirements
related to any of Borrower's employee benefit plans;
4.14 Borrower will permit representatives of Bank to enter onto
Borrower's properties to inspect and test Borrower's properties
as Bank, in its sole discretion, may deem appropriate to
determine Borrower's compliance with section 5.8 of this
Agreement; provided however, that any such inspections and tests
shall be for Bank's sole benefit and shall not be construed to
create any responsibility or liability on the part of Bank to
Borrower or to any third party.
5. Negative Covenants. So long as credit granted under this Agreement is
available and until full and final payment of all sums outstanding under
this Agreement and promissory note(s):
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+5.1 Borrower will not, during any fiscal year, expend or incur in
the aggregate more than $10,000,000 for fixed assets, nor more
than N/A for any single fixed asset whether or not payable that
fiscal year or later under any purchase agreement or lease;
5.2 Borrower will not, without the prior written consent of Bank,
purchase or lease under an agreement for acquisition, incur any
other indebtedness for borrowed money, mortgage, assign, or
otherwise encumber any of Borrower's assets, nor sell, transfer
or otherwise hypothecate any such assets except in the ordinary
course of business. Borrower shall not guaranty, endorse,
co-sign, or otherwise become liable upon the obligations of
others, except by the endorsement of negotiable instruments for
deposit or collection in the ordinary course of business. For
purposes of this paragraph, the sale or assignment of accounts
receivable, or the granting of a security interest therein,
shall be deemed the incurring of indebtedness for borrowed
money;
+5.3 The total of salaries, withdrawals, or other forms of
compensation, whether paid in cash or otherwise, by Borrower
shall not exceed the following amounts for the persons
indicated, nor will amounts in excess of such limits be paid to
any other persons:
Name: N/A
Monthly/Yearly Amount: N/A
Name: N/A
Monthly/Yearly Amount: N/A
5.4 Borrower will not, without Bank's prior written consent, declare
any dividends on shares of its capital stock, or apply any of
its assets to the purchase, redemption or other retirement of
such shares, or otherwise amend its capital structure;
+5.5 Borrower will not make any loan or advance to any person(s) or
purchase or otherwise acquire the capital stock, assets or
obligations of, or any interest in, any person, except:
(a) commercial bank time deposits maturing within one year,
(b) marketable general obligations of the United States or a
State, or marketable obligations fully guarantied by the
United States,
(c) short-term commercial paper with the highest rating of a
generally recognized rating service,
(d) other investments related to the Borrower's business
which, together with such other investments now
outstanding, do not in the aggregate exceed the sum of
$500,000, at any time;
5.6 Borrower will not liquidate or dissolve or enter into any
consolidation, merger, pool, joint venture, syndicate or other
combination, or sell, lease, or dispose of Borrower's business
assets as a whole or such as in the opinion of Bank constitute a
substantial portion of Borrower's business or assets;
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5.7 Borrower will not engage in any business activities or
operations substantially different from or unrelated to present
business activities or operations; and
5.8 Borrower, and Borrower's tenants, contractors, agents or other
parties authorized to use any of Borrower's properties, will not
use, generate, manufacture, store, treat, dispose of, or release
any hazardous substance or hazardous waste in, on, under or
about any of Borrower's properties, except as previously
disclosed to Bank in writing as provided in section 3.9; and any
such activity shall be conducted in compliance with all
applicable federal, state and local laws, regulations and
ordinances, including without limitation those described in
section 3.9.
6. Waiver, Release and Indemnification. Borrower hereby: (a) releases and
waives any claims against Bank for indemnity or contribution in the
event Borrower becomes liable for cleanup or other costs under any of
the applicable federal, state or local laws, regulations or ordinances,
including without limitation those described in section 3.9, and (b)
agrees to indemnify and hold Bank harmless from and against any and all
claims, losses, liabilities, damages, penalties and expenses which Bank
may directly or indirectly sustain or suffer resulting from a breach of
(i) any of Borrower's representations and warranties with respect to
hazardous wastes and hazardous substances contained in section 3.9, or
(ii) section 5.8. The provisions of this section 6 shall survive the
full and final payment of all sums outstanding under this Agreement and
promissory notes and shall not be affected by Bank's acquisition of any
interest in any of the Borrower's properties, whether by foreclosure or
otherwise.
7. Events of Default. The occurrence of any of the following events
("Events of Default") shall terminate any and all obligations on the
part of Bank to make or continue the loan and/or line of credit and, at
the option of Bank, shall make all sums of interest and principal
outstanding under the loan and/or line of credit immediately due and
payable, without notice of default, presentment or demand for payment,
protest or notice of nonpayment or dishonor, or other notices or demands
of any kind of character, all of which are waived by Borrower, and Bank
may proceed with collection of such obligations and enforcement and
realization upon all security which it may hold and to the enforcement
of all rights hereunder or at law:
7.1 The Borrower shall fail to pay when due any amount payable by it
hereunder on any loans or notes executed in connection herewith.
7.2 Borrower shall fail to comply with the provisions of any other
covenant, obligation or term of this Agreement for a period of
fifteen (15) days after the earlier of written notice thereof
shall have been given to the Borrower by Bank or Borrower or any
Guarantor has knowledge of an Event of Default or an event that
can become an Event of Default;
7.3 Borrower shall fail to pay when due any other obligation for
borrowed money, or to perform any term or covenant on its part
to be performed under any agreement relating to such obligation
or any such other debt shall be
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declared to be due and payable and such failure shall continue
after the applicable grace period;
7.4 Any representation or warranty made by Borrower in this
Agreement or in any other statement to Bank shall prove to have
been false or misleading in any material respect when made, or
Borrower's representations regarding the "year 2000 problem"
shall cease to be true, whether or not true when made, and as a
result Bank reasonably believes that Borrower's financial
condition or its ability to pay its debts as they come due will
thereby be materially impaired;
7.5 Borrower makes an assignment for the benefit of creditors, files
a petition in bankruptcy, is adjudicated insolvent or
bankruptcy, petitions to any court for a receiver or trustee for
Borrower or any substantial part of its property, commences any
proceeding relating to the arrangement, readjustment,
reorganization or liquidation under any bankruptcy or similar
laws, or if there is commenced against Borrower any such
proceedings which remain undismissed for a period of thirty (30)
days or, if Borrower by any act indicates its consent or
acquiescence in any such proceeding or the appointment of any
such trustee or receiver;
+7.6 Any judgment attaches against Borrower or any of its properties
for an amount in excess of $250,000 which remains unpaid,
unstayed on appeal, unbonded, or undismissed for a period of
thirty (30) days;
7.7 Loss of any required government approvals, and/or any
governmental regulatory authority takes or institutes action
which, in the opinion of Bank, will adversely affect Borrower's
condition, operations or ability to repay the loan and/or line
of credit;
7.8 Failure of Bank to have a legal, valid and binding first lien
on, or a valid and enforceable prior perfected security interest
in, any property covered by any deed of trust or security
agreement required under this Agreement;
7.9 Borrower dies, becomes incompetent, or ceases to exist as a
going concern;
7.10 Occurrence of an extraordinary situation which gives Bank
reasonable grounds to believe that Borrower may not, or will be
unable to, perform its obligations under this or any other
agreement between Bank and Borrower; or
7.11 Any of the preceding events occur with respect to any guarantor
of credit under this Agreement, or such guarantor dies or
becomes incompetent, unless the obligations arising under the
guaranty and related agreements have been unconditionally
assumed by the guarantor's estate in a manner satisfactory to
Bank.
8. Successors; Waivers. Notwithstanding the Events of Default above, this
Agreement shall be binding upon and inure to the benefit of Borrower and
Bank, their respective successors and assigns, except that Borrower may
not assign its rights hereunder. No consent or waiver under this
Agreement shall be effective unless in writing and signed by the Bank
and shall not waive or affect any other default, whether prior or
subsequent thereto, and whether of the same or different type. No delay
or omission
<PAGE> 11
on the part of the Bank in exercising any right shall operate as a
waiver of such right or any other right.
9. Arbitration.
9.1 At the request of either Bank or Borrower any controversy or
claim between the Bank and Borrower, arising from or relating to
this Agreement or any Loan Document executed in connection with
this Agreement or arising from any alleged tort shall be settled
by arbitration in King County, Washington. The United States
Arbitration Act will apply to the arbitration proceedings which
will be administered by the American Arbitration Association
under its commercial rules of arbitration exceed that unless the
amount of the claim(s) being arbitrated exceeds $5,000,000 there
shall be only one arbitrator. Any controversy over whether an
issue is arbitrable hall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court
having jurisdiction. The institution and maintenance of any
action for judicial relief or pursuit of a provisional or
ancillary remedy shall not constitute a waiver of the right of
either party, including plaintiff, to submit the controversy or
claim to arbitration if such action for judicial relief is
contested. For purposes of the application of the statute of
limitations the filing of an arbitration as provided herein is
the equivalent of filing a lawsuit and the arbitrator(s) will
have the authority to decide whether any claim or controversy is
barred by the statute of limitations, and if s, to dismiss the
arbitration on that basis. The parties consent to the joinder in
the arbitration proceedings of any guarantor, hypothecator or
other party having an interest related to the claim or
controversy being arbitrated.
9.2 Notwithstanding the provisions of Section 9.1, no controversy or
claim shall be submitted to arbitration without the consent of
all parties if at the time of the proposed submission, such
controversy or claim arises from or relates to an obligation
secured by real property;
9.3 No provision of this Section 9 shall limit the right of the
Borrower or the Bank to exercise self-help remedies such as
setoff, foreclosure or sale of any collateral, or obtaining any
ancillary provisional or interim remedies from a court of
competent jurisdiction before, after or during the pendency of
any arbitration proceeding. The exercise of any such remedy does
not waive the right of either party to request arbitration. At
Bank's option foreclosure under any deed of trust may be
accomplished by exercise of the power of sale under the deed of
trust or judicial foreclosure as a mortgage.
10. Collection Activities, Lawsuits and Governing Law. Borrower agrees to
pay Bank all of Bank's costs and expenses (including reasonable
attorney's fees and the allocated cost for in-house legal services
incurred by Bank), incurred in the documentation and administration of
this Agreement and the loans reflected herein. The nonprevailing party
shall, upon demand by the prevailing party, reimburse the prevailing
party of all of its costs, expenses and reasonable attorneys' fees
(including the allocated cost of in-house counsel) incurred in
connection with any controversy
<PAGE> 12
or claim between said parties relating to this Agreement or any of the
loan documents, or to an alleged tort arising out of the transactions
evidence by this agreement or any of the loan documents, including those
incurred in any action, bankruptcy proceeding, arbitration or other
alternative dispute resolution proceeding, or appeal, or in the course
of exercising any judicial or nonjudicial remedies. If suit is
instituted by Bank to enforce this Agreement or any of the loan
documents, Borrower consents to the personal jurisdiction of the courts
of the State of Washington and Federal Courts located in the State of
Washington. Borrower further consents to the venue of this suit, being
lain in Seattle, Washington. This Agreement and any notes and security
agreements entered into pursuant to this Agreement shall be construed in
accordance with the laws of the State of Washington.
+11. Additional Provisions. Borrower agrees to the additional provisions set
forth immediately following this Section 11 or on any "Exhibit N/A"
attached to and hereby incorporated into Agreement. This Agreement
supersedes all oral negotiations or agreements between Bank and Borrower
with respect to the subject matter hereof and constitutes the entire
understanding and Agreement of the matters set forth in this Agreement.
11.1 Borrower shall maintain a minimum debt coverage ratio of 1.25
times, measured annually. Debt coverage ratio is defined as
follows: Net Income + Depreciation + Amortization/CPTLD
12. Miscellaneous. If any provision of this Agreement is held to be invalid
or unenforceable, then (a) such provision shall be deemed modified if
possible, or if not possible, such provision shall be deemed stricken,
and (b) all other provisions shall remain in full force and effect.
12.1 If the imposition of or any change in any law, rule, or
regulation guideline or the interpretation or application of any
thereof by any court or administrative or governmental authority
(including any request or policy whether or not having the force
of law) shall impose or modify any taxes (except U.S. federal,
state or local income or franchise taxes imposed on Bank),
reserve requirements, capital adequacy requirements or other
obligations which would: (a) increase the cost to Bank for
extending or maintaining any loans and/or line of credit to
which this Agreement relates, (b) reduce the amounts payable to
Bank under this Agreement, such notes and other instruments, or
(c) reduce the rate of return on Bank's capital as a consequence
of Bank's obligations with respect to any loan and/or line of
credit to which this Agreement relates, then Borrower agrees to
pay Bank such additional amounts as will compensate Bank
therefor, within five (5) days after Bank's written demand for
such payment, which demand shall be accompanied by an
explanation of such imposition or charge and a calculation in
reasonable detail of the additional amounts payable by Borrower,
which explanation and calculations shall be conclusive, absent
manifest error.
<PAGE> 13
12.2 Bank may sell participations in or assign this loan in whole or
in part without notice to Borrower and Bank may provide
information regarding the Borrower and this Agreement to any
prospective participant or assignee. If a participation is sold
or the loan is assigned the purchaser will have the right of set
off against the Borrower and may enforce its interest in the
Loan irrespective of any claims or defenses the Borrower may
have against the Bank.
13. Notices. Any notices shall be given in writing to the opposite party's
signature below or as that party may otherwise specify in writing.
14. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
This Business Loan Agreement (Parts A and B) executed by the parties on March 1,
1999. Borrower acknowledges having read all of the provisions of this Agreement
and Borrower agrees to its terms.
Bank of America NT&SA, D.B.A., Seafirst Spokane & Eastern Commercial Team #1
(Branch/Office)
By:
------------------------------------------------------
Joe Poole
Title: Vice President
Address: 601 W. Riverside, Floor 5
City, State, Zip: Spokane, WA 99210
Phone: (509) 353-1475
Fax: (509) 353-1492
TELECT, INC.
(Borrower Name)
By:
-----------------------------------------------------
Harold Alexander
Title: Vice President
Address: 2111 N. Molter Road
City, State, Zip: Liberty Lake, WA 99019
Phone: 509 926-6000
Fax: 509 928-8462
