<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-QSB
_______________________________________________
[X] Quarterly report under Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended: January 31, 2000
[ ] Transition period under Section 13 or 15(d) of the Securities Exchange
Act of 1934 for the transition period from _______ to _____________.
Commission file No. 0-30220
_______________________________________________
COMMUNICATIONS WORLD INTERNATIONAL, INC.
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(Name of Small Business Issuer in Its Charter)
Colorado 84-0917382
- ------------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7315 S. Revere Parkway, Englewood, Colorado 80112
- ------------------------------------------------ ---------------------
(Address of principal executive offices) (Zip Code)
(303) 721-8200
----------------------------------------------
Issuer's Telephone Number, Including Area Code
Check whether the issuer: (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act of 1934 during the past 12 months (or
for such shorter period that the Registrant was required to file such reports),
and (2) has been subject to such filing requirements for the past 90 days.
Yes X No ____
---
As of January 31, 2000 the issuer had 7,628,668 shares of its no par value
Common Stock issued and outstanding.
<PAGE>
Part I
Financial Information
Item 1. Financial Statements
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Consolidated Balance Sheet (Unaudited)
January 31, 2000
(In Thousands of Dollars)
________________________________________________________________________________
<TABLE>
<S> <C>
ASSETS
- ------
Current assets:
Cash $ 200
Trade accounts and current portion of notes receivable, less allowance for
doubtful accounts of $239 1,799
Inventory 386
Prepaid expenses 80
-------
Total current assets 2,465
Property and equipment, net 371
Deposits and other assets 182
Intangible assets, net 3,197
Deferred tax asset 1,045
-------
$ 7,260
=======
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
Current liabilities:
Trade accounts payable $ 1,343
Revolving line of credit 1,007
Current portion of notes payable 682
Accrued expenses 462
Deposits and other current liabilities 67
-------
Total current liabilities 3,561
Capital lease obligations and deferred revenue 30
Notes payable (including $857 due to related parties) 2,914
-------
Total liabilities 6,505
-------
Stockholders' equity:
Preferred stock, 3,000,000 shares authorized:
Series C (cumulative) - 50,000 shares issued and outstanding, 50
Series F (cumulative) - 30,000 shares issued and outstanding 30
Common stock, no par value, 25,000,000 shares authorized,
shares issued and outstanding; 7,628,668 8,119
Additional paid-in capital 569
Accumulated deficit (8,013)
-------
Total stockholders' equity 755
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$ 7,260
=======
</TABLE>
See accompanying notes to consolidated financial statements
2
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Consolidated Statements of Operations (Unaudited)
For the Three Months Ended January 31, 2000 and 1999
(In Thousands of Dollars except Earnings Per Share data)
________________________________________________________________________________
<TABLE>
<CAPTION>
For the Three Months Ended January 31,
--------------------------------------
2000 1999
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<S> <C> <C>
Revenue:
Franchise equipment sales $1,328 $1,153
Direct equipment sales and service 2,654 688
Royalty fees 30 43
Other revenue 66 23
------ ------
Total revenue 4,078 1,907
Costs and expenses:
Cost of franchise equipment sales 1,219 1,029
Cost of direct equipment sales and service 1,856 459
Selling 274 122
General and administrative 885 580
Cost of expired letters of intent - 33
Depreciation and amortization 77 42
Interest expense 133 58
------ ------
Total cost and expenses 4,444 2,323
(Loss) from operations before income taxes (366) (416)
Income tax benefit - -
------ ------
(Loss) from continuing operations (366) (416)
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Discontinued operations, net of income taxes:
Loss from operations of subsidiaries sold - (18)
Loss on sale of subsidiaries - (396)
------ ------
Loss from discontinued operations - (414)
Net (loss) $ (366) $ (830)
====== ======
Earning per share:
Basic:
Loss from continuing operations $ (.05) $ (.21)
====== ======
Net (loss) $ (.05) $ (.43)
====== ======
Fully diluted:
Loss from continuing operations $ (.05) $ (.21)
====== ======
Net (loss) $ (.05) $ (.43)
====== ======
</TABLE>
See accompanying notes to consolidated financial statements
3
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Consolidated Statements of Operations (Unaudited)
For the Nine Months Ended January 31, 2000 and 1999
(In Thousands of Dollars except Earnings Per Share data)
________________________________________________________________________________
<TABLE>
<CAPTION>
For the Nine Months Ended January 31,
-------------------------------------
2000 1999
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<S> <C> <C>
Revenue:
Franchise equipment sales $ 3,950 $ 4,069
Direct equipment sales and service 6,789 2,482
Royalty fees 111 148
Other revenue 189 56
------- -------
Total revenue 11,039 6,755
Costs and expenses:
Cost of franchise equipment sales 3,602 3,610
Cost of direct equipment sales and service 4,530 1,567
Selling 774 275
General and administrative 2,385 1,765
Executive officer severance compensation - 138
Cost of expired letters of intent - 78
Depreciation and amortization 181 150
Interest expense 258 193
------- -------
Total cost and expenses 11,730 7,776
(Loss) from operations before income taxes (691) (1,021)
Income tax benefit - -
------- -------
(Loss) from continuing operations (691) (1,021)
Discontinued operations, net of income taxes:
Loss from operations of subsidiaries sold - (33)
Loss on sale of subsidiaries - (396)
------- -------
Loss from discontinued operations - (429)
------- -------
Net (loss) $ (691) $(1,450)
======= =======
Earning per share:
Basic:
(Loss) from continuing operations $ (.10) $ (.53)
======= =======
Net (loss) $ (.10) $ (.75)
======= =======
Fully diluted:
(Loss) from continuing operations $ (.10) $ (.53)
======= =======
Net (loss) $ (.10) $ (.75)
======= =======
</TABLE>
See accompanying notes to consolidated financial statements
4
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows (Unaudited)
For the Nine Months Ended January 31, 2000 and 1999
(In Thousands of Dollars)
________________________________________________________________________________
<TABLE>
<CAPTION>
For the Nine Months Ended January 31,
-------------------------------------
2000 1999
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<S> <C> <C>
Cash flows from operating activities:
Net (loss) $ (691) $(1,450)
Adjustments to reconcile to net cash provided
(used) by operating activities:
Depreciation and amortization 181 150
Provision for losses on accounts and notes receivable 101 34
Intangible write off - discontinued operations - 259
Changes in operating assets and liabilities:
Trade accounts and notes receivable (445) 573
Inventories (54) 150
Prepaid expenses (72) (23)
Deposits and other assets (141) 2
Notes receivable (44) -
Trade accounts payable (474) (126)
Accrued expenses 107 (185)
Other liabilities 47 (56)
------- -------
Net cash (used) by operating activities (1,485) (672)
------- -------
Cash flows from investing activities:
Acquisitions (1,636) (64)
Capital expenditures (219) (22)
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Net cash used by investing activities (1,855) (86)
------- -------
Cash flows from financing activities:
Net borrowings under line-of-credit agreement 510 (961)
Sale of Common Stock 507 310
Sale of warrants 18 -
Net proceeds from sale of Preferred Stock - 1,759
Redemption of Preferred Stock 16 -
Notes payable 2,756 -
Repayment of notes and contract payable (308) (294)
Repayment of capital lease obligations (16) (15)
------- -------
Net cash provided by financing activities 3,483 799
Net increase (decrease) in cash 143 41
Cash at beginning of the period 57 14
------- -------
Cash at end of the period $ 200 $ 55
======= =======
</TABLE>
See accompanying notes to consolidated financial statements
5
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Consolidated Statements of Cash Flows (Unaudited) - continued
For the Nine Months Ended January 31, 2000 and 1999
(In Thousands of Dollars)
________________________________________________________________________________
<TABLE>
2000 1999
----- -----
<S> <C> <C>
Supplemental disclosures of cash flow information:
Interest paid $ 164 $ 192
Non-cash investing activities:
Sale of operating subsidiaries:
Exchange of preferred stock as consideration $ 372
Note receivable taken as partial consideration $ 25
Business acquisitions financed by :
Issuance of common stock $ 492
Conversion of preferred stock to common stock $ 491
Conversion of notes payable to common stock $ 15
</TABLE>
See accompanying notes to consolidated financial statements
6
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements (Unaudited)
________________________________________________________________________________
(1) Basis of Presentation
The consolidated condensed interim financial statements included herein
have been prepared by the Company, without audit, pursuant to the rules and
regulations of the Securities and Exchange Commission. Certain information
and footnote disclosures normally included in financial statements prepared
in accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although the
Company believes the disclosures are adequate to make information presented
not misleading.
These statements reflect all adjustments, consisting of normal recurring
adjustments which, in the opinion of management, are necessary for fair
presentation of the information contained therein. It is suggested that
these consolidated condensed financial statements be read in conjunction
with the financial statements and notes thereto, at April 30, 1999 and for
the two years then ended included in the Company's report on Form 10-SB/A.
The Company follows the same accounting policies in preparation of interim
reports.
Results of operations for the interim periods are not necessarily
indicative of annual results.
(2) Acquisitions
During the nine months ended January 31, 2000, the Company completed the
acquisitions of two companies. The excess of purchase price over tangible
assets in these two acquisitions was approximately $1,559,000. The
acquisitions were made with a combination of cash, issuance of common stock
and notes. Common stock was issued at the quoted market price within five
business days of the closing of the sale. A total of 442,050 shares of
common stock were issued at the total market price of $492,123. Notes were
issued in the aggregate principal amount of $509,500 at an interest rate of
7% per annum with various maturities through 2003.
(3) Convertible Debt Offerings
During the nine months ended January 31, 2000, the Company received net
proceeds of approximately $1,362,000 from the sale of Units of Subordinated
Convertible Notes and Common Stock Purchase Warrants. Each Unit consisted
of a $50,000 Note and 20,000 Warrants for a purchase price of $50,400.
Each Note is convertible into Common Stock at $1.50 per share which may be
lowered under certain circumstances. Each Warrant is exercisable at $.40
per share until September 30, 2004.
7
<PAGE>
COMMUNICATIONS WORLD INTERNATIONAL, INC. AND SUBSIDIARIES
Notes to Consolidated Financial Statements (Unaudited)
________________________________________________________________________________
(3) Convertible Debt Offerings (continued)
In November 1999, additional net proceeds of approximately $722,000 were
received from the sale of Notes and Warrants to two institutional
investors. The terms of these transactions were similar to the Unit
offering, with certain exceptions. The Company agreed to register the
common stock which may be received upon conversion of these notes, and that
if the registration statement is not declared effective by April 30, 2000,
the institutional investors have the right to accelerate the maturity date
of their notes to nine months from the date of exercise of the acceleration
right. If the institutional investors exercise the right to accelerate the
maturity of their notes, the Company will redeem their Warrants at $.02 per
Warrant. The exercise price for these warrants is $.60, instead of the
$.40 exercise price in the Units. The Company is also restricted in its
ability to prepay these notes.
(4) Revolving Line of Credit
In January 2000 the Company entered into a new revolving line of credit
agreement with a finance company. The revolving line of credit permits the
Company to borrow up to $2,000,000 subject to certain collateral
limitations. Interest, at the rate of prime plus 3.5% per annum, is due
monthly. The revolving line of credit is collaterallized by substantially
all of the assets of the Company.
8
<PAGE>
Item 2. Management's Discussion and Analysis or Plan of Operations
Statements herein, other than historical fact, may be deemed forward-looking.
These statements may be accompanied by words such as "believe," "estimate,"
"project," "expect," "anticipate," or "predict," that convey the uncertainty of
future events or outcomes. These statements are based on assumptions that the
Company believes are reasonable; however, many factors could cause the Company's
actual results in the future to differ materially from the forward-looking
statements made herein and in any other documents or oral presentations made by,
or on behalf of, the Company. Important factors which could cause actual
results to differ materially from those in forward-looking statements, include,
among others, the ability to obtain additional financing, which is not assured;
price and product competition by foreign and domestic competitors, including new
entrants; rapid technological developments and changes; the Company's
relationship with its suppliers and suppliers' ability to provide products on a
timely basis; the achievement of lower costs and expenses; reliance on large
customers; the Company's ability to attract acquisition candidates and to
successfully integrate acquisitions into the Company's business; interest rate
fluctuations and other general economic conditions. In light of the assumptions
and uncertainties inherent in forward-looking information, the inclusion of such
information should not be regarded as a representation by the Company or any
other person that the plans of the Company will be realized.
Results of Operations
For the three month and nine month periods ended January 31, 2000,
Communications World International, Inc. ("CommWorld" or the "Company") reported
net losses from continuing operations of $366,000 and $691,000, respectively, as
compared to net losses of $416,000 and $1,021,000 for the comparable periods
ended January 31, 1999. Total revenue for the quarter ended January 31, 2000
was $4,078,000 compared to total revenue of $1,907,000 for the quarter ended
January 31, 1999. For the nine month period ended January 31, 2000, total
revenue was $11,039,000 compared to total revenue of $6,755,000 for the nine
month period ended January 31, 1999. During the nine months ended January 31,
2000, the Company completed two acquisitions. One acquisition was completed on
September 30, 1999, and the other acquisition was completed on October 29, 1999.
Results of operations for these two acquisitions have been included in the
Company's Consolidated Statements of Operations since the respective date of
acquisition.
Franchise Segment
The sales of the franchise segment in the three month and nine month periods
ended January 31, 2000, remained relatively stable as compared to the same time
periods from the prior year. The gross margin percentage on franchise equipment
sales was approximately 8% for the three month and 9% for the nine month periods
ended January 31, 2000 as compared to gross margins of approximately 11% for the
same periods in the prior year. The prior year gross margins were improved by a
discount of $127,000 related to an agreement with Toshiba America Information
Systems, Inc., ("TAIS") the Company's principal supplier, to treat as non
interest bearing a note payable to TAIS in the amount of $1,086,000. Exclusive
of the $127,000 discount, the gross margins from franchise equipment sales would
have resulted in a decrease in gross margin of $8,000 the nine month period
ended January 31, 1999. Management does not expect future sales of the
franchise segment to materially increase over present levels.
9
<PAGE>
Company Owned Segment
The increase in revenue from direct equipment sales and service was $1,966,000
and $4,307,000 for the three month and nine month periods ended January 31,
2000, respectively, compared to the same time periods from the prior year. The
gross margin percentage on direct equipment sales and service declined
approximately 4% from 37% for the nine months ended January 31, 1999 to 33 % for
the nine months ended January 31, 2000. Gross margins for the three month
periods ending January 31, 1999 compared to the same periods of the prior year
declined 3% from 33% to 30%. The decrease in gross margin reflects an increase
in less profitable service business versus higher margin equipment installation
and sales in the Company's national account operations. The decrease in
equipment installation and sales in the Company's national account operations is
the result of reduced activity with the Company's largest national account
customer. The increase in sales reflects the Company's strategy to grow by
acquisition in the Southwest United States. Sales for the three and nine months
ended include two acquisitions in the Dallas (completed in March and September
1999) and two acquisitions in the Denver (completed in April and October 1999)
markets. During the three month and nine month periods ended January 31, 1999
the operations of three subsidiaries were disposed of and were not included in
the respective periods' operations.
The increase in selling expenses was $81,000 and $279,000 for the three month
and nine month periods ended January 31, 2000, respectively, compared to the
same time periods from the prior year after giving effect to $71,000 and
$220,000 of selling expenses for the prior year comparable periods included in
loss from operations sold. This net increase was due to increased commissions
on higher sales volume and a larger sales force in company owned operations.
In June of 1998, the Company entered into a letter of intent to merge with
Interconnect Acquisition Corporation ("IAC"), a privately-held company. The
merger was completed January 28, 1999. In connection with the merger, the
Company effected management changes, including the election of Jim Ciccarelli as
Chief Executive Officer and a director of the Company and Lionel Brown as
President of the Company. Included in the loss for the nine months ended
January 31, 1999 is officer severance compensation of $138,000 related to two
executive officers who are no longer with the Company.
In conjunction with the merger with IAC, the Company is pursuing several
acquisition targets. Costs associated with these potential acquisitions are
deferred and either capitalized as part of the cost of acquisition or are
expensed at the time that it is determined that the acquisition will not be
completed. Included in the loss for the nine months ended January 31, 1999 are
$78,000 of costs associated with expired letters of intent.
The increase in general and administrative expenses was $221,000 and $176,000
for the three month and nine month periods ended January 31, 2000, respectively,
compared to the same time periods from the prior year after giving effect to
$84,000 and $444,000 of general and administrative expenses for the prior year
comparable periods included in loss from operations sold. This net increase is
due to the increased number of locations where the Company conducts operations
and on the resulting higher volume of Company activity. Additionally, executive
compensation increased by approximately $48,000 and $93,000 for the three and
nine month periods ended January 31, 2000, respectively, compared to the same
time periods from the prior year.
10
<PAGE>
Lack of Working Capital; Need for Additional Financing
- ------------------------------------------------------
The Company's operations have historically been adversely affected by a lack of
working capital. The Company uses a line of credit from a lending institution,
which is limited to the extent of available collateral. The Company's line of
credit is fully utilized to the extent of available collateral. The lack of
available funding impedes the Company's ability to fund additional equipment
purchases and to expand its business operations. Although the Company's working
capital deficit has been reduced by approximately $600,000 at January 31, 2000
as compared to its position at April 30, 1999, the Company expects to continue
its efforts to obtain additional capital. The Company has no firm commitments
from any source and there can be no assurance the Company will obtain the
necessary capital. Moreover, due to the Company's poor liquidity and operating
results and the absence of a NASDAQ listing for its Common Stock, the cost of
obtaining additional capital is expected to be significant.
In May 1999, the Company completed an offering of 13,807.5 Units with each Unit
consisting of one share of Series H Preferred Stock and warrants to purchase 40
shares of common stock at $3.00 per share through March 31, 2004. The Company
received $2,761,500 in gross proceeds from this offering. All of the shares of
Series H Preferred Stock have been converted into an aggregate of 2,761,500
shares of common stock.
In October 1999 the Company completed an offer of Units of Subordinated
Convertible Notes and Common Stock Purchase Warrants. Each Unit consists of a
$50,000 Note and 20,000 Warrants for a purchase price of $50,400. The Note is
convertible into Common Stock at $1.50 per share which may be lowered under
certain circumstances. Each Warrant is exercisable at $.40 per share until
September 30, 2004. The Company received net proceeds of approximately
$1,362,000 from the sale of these units.
In November 1999, additional net proceeds of approximately $722,000 were
received from the sale of Notes and Warrants to two institutional investors.
The terms of these transactions were similar to the Unit offering, with certain
exceptions. The Company agreed to register the common stock which may be
received upon conversion of these notes, and that if the registration statement
is not declared effective by April 30, 2000, the institutional investors have
the right to accelerate the maturity date of their notes to nine months from the
date of exercise of the acceleration right. If the institutional investors
exercise the right to accelerate the maturity of their notes the Company will
redeem their Warrants at $.02 per Warrant. The exercise price for these
warrants is $.60, instead of the $.40 exercise price in the Units. The Company
is also restricted in its ability to prepay these notes.
In January 2000, the Company entered into a new revolving line of credit
agreement with a finance company. The revolving line of credit permits the
Company to borrow up to $2,000,000 subject to certain collateral limitations.
Interest, at the rate of prime plus 3.5% per annum, is due monthly. The
revolving line of credit is collaterallized by substantially all of the assets
of the Company.
11
<PAGE>
Part II
Other Information
Item 5. Other Information.
On March 10, 2000, the Company entered into an agreement for a business
combination with Business Products, Inc. ("BPI"). BPI provides advanced data
technology services. It is headquartered in Denver, and has offices in Seattle
and Salt Lake City. BPI is privately held by Michael G. St. John and members of
his family. It is contemplated that, in connection with the merger, the St.
Johns will receive an aggregate of 12,600,000 shares of the Company's common
stock and warrants to purchase an additional 3,000,000 shares at $1.50 per share
if certain benchmarks are satisfied.
The merger is subject to approval of the Company's shareholders as well as
obtaining various approvals, and customary closing conditions.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10. General Credit and Security Agreement dated January 29, 2000, with SPECTURM
Commercial Services.
(b) Reports on Form 8-K
Form 8-K filed on November 8, 1999, reporting the purchase of certain assets and
assumption of certain liabilities of West-Tech Communications Corp.
Form 8-K/A filed on January 7, 2000, reporting the historical financial
information and pro forma financial information for the purchase of certain
assets and assumption of certain liabilities of West-Tech Communications Corp.
SIGNATURES
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
Communications World International, Inc.
------------------------------------------------
(Registrant)
Date: March 13, 2000 /s/ James M. Ciccarelli
-------------- ------------------------------------------------
James M. Ciccarelli, Chief Executive Officer
Date: March 13, 2000 /s/ David E. Welch
-------------- ------------------------------------------------
David E. Welch, Chief Financial Officer
12
<PAGE>
Communications World International, Inc.
Form 10-QSB
Exhibit 10
GENERAL CREDIT AND SECURITY AGREEMENT
-------------------------------------
THIS AGREEMENT, dated as of January 26, 2000, between SPECTRUM Commercial
Services, a division of Lyon Financial Services, Inc., a Minnesota corporation,
having its mailing address and principal place of business at Two Appletree
Square, Suite 415, Bloomington, Minnesota 55425-1637 (herein called "Lender"),
and Communications World International, Inc., CommWorld Acquisition Corporation,
IAC Acquisition Corporation, and Digital Telecom Incorporated d/b/a CommWorld
Nationwide, Inc., all having the mailing address and principal place of business
at 7315 S. Revere Parkway, Suite 602, Englewood, CO 80112 and having joint and
several responsibility hereunder (hereinafter collectively referred to as
"Borrower").
1. Agreement. This Agreement states the terms and conditions under which
---------
Borrower may obtain certain loans and/or other credit extensions from Lender.
2. Certain Definitions. For purposes of this Agreement, the following
-------------------
terms shall have the following meanings:
"Advance(s)" shall have the meaning provided in the paragraph entitled
----------
"Advances".
"Affiliate" shall include, with respect to any party, any Person which
---------
directly or indirectly controls, is controlled by, or is under common control
with such party and, in addition, in the case of Borrower, each officer,
director or 10% shareholder of Communications World International, Inc., and
each joint venturer and partner of Borrower.
"Borrower" shall have the meaning provided in the preamble hereto.
--------
"Borrowing Base" shall mean the sum of (i) Eighty percent (80%) of the
--------------
net amount of Eligible Receivables or such greater or lesser percentage as
Lender, in its sole discretion, shall deem appropriate, plus (ii) the lesser of
----
(x) One Hundred Thousand and No/100ths Dollars ($100,000.00) or (y) Forty
percent (40%) of the net amount of Eligible Inventory, or such greater or lesser
dollars and/or percentage as Lender, in its sole discretion, shall deem
appropriate.
"Business Day" shall mean any day on which major commercial banks in
------------
Minneapolis, Minnesota are open for the transaction of business of the kind
contemplated by this Agreement.
"Chattel Paper" shall have the meaning ascribed to such term in
-------------
Article 9 of the Commercial Code.
"Closing Date" shall mean the day specified by Borrower on which all
------------
of the conditions precedent specified in the paragraph entitled "Conditions
Precedent to Initial Advance" shall have been satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time.
"Commercial Code" shall mean the Uniform Commercial Code as enacted in
---------------
the State of Minnesota, as amended from time to time or other applicable state
where required by law.
"Consolidated" shall, when used with reference to any financial
------------
information pertaining to (or when used as a part of any defined term or
statement pertaining to the financial condition of) any Person, mean the
accounts of such Person and its subsidiaries, determined on a consolidated
basis, all determined as to principles of consolidation and, except as otherwise
specifically required by the definition of such term or by such statement as to
such accounts, in accordance with GAAP.
"Contingent Obligations" shall mean, with respect to any Person, all
----------------------
of such Person's liabilities and obligations which are contingent upon and will
not mature unless and until the occurrence of some event or circumstance and
which are not included within the definition of Liabilities of such Person.
"Customer(s)" shall have the meaning provided in the paragraph
-----------
entitled "Reports and Collections".
"Default" shall mean any event which, with the giving of notice or
-------
passage of time, or both, would constitute an Event of Default.
"Eligible Inventory" shall mean the dollar value of only that
------------------
Inventory in which only Lender holds a senior security interest, to which
Lender, in its sole discretion, shall elect from time to time to constitute
Eligible Inventory, and in any event, may include only new (and not used,
returned and/or refurbished) inventory available for sale to its franchisees or
distributors and which is located in the headquarters office of Communications
World International, Inc. Without limiting the discretion of Lender to consider
any Inventory not to be Eligible Inventory, and by way of example of types of
Inventory that
-1-
<PAGE>
Lender will consider not to be Eligible Inventory, Lender, notwithstanding any
earlier classification of eligibility, may consider any Inventory not to be
Eligible Inventory if: (i) such Inventory does not constitute finished goods [or
such Inventory does not constitute work in process which is being processed in
the normal course so as to promptly become finished goods which, upon
completion, will constitute Eligible Inventory] or such Inventory does not
constitute raw materials that are to be used or consumed in the normal course in
the processing of such raw materials into finished goods which, upon completion,
will constitute Eligible Inventory; (ii) such Inventory does not meet all
standards imposed by any governmental agency having regulatory authority over
such goods and/or their use, manufacture or sale; (iii) such Inventory has not
been physically received in the continental United States by Borrower; (iv) such
Inventory is not currently usable or currently salable in the normal course of
Borrower's operations; (v) such Inventory is on consignment to or from any other
Person or is subject to any bailment; (vi) such Inventory is subject to any
lien, Security Interest or other encumbrance whatsoever, except for the security
interest of Lender under this Agreement; (vii) such Inventory has been sold to
any other person; or (viii) such Inventory is located in a place other than
Communications World International, Inc. headquarters. The value of Eligible
Inventory shall be the lower of the cost or market value of the Eligible
Inventory computed on a first-in, first-out basis in accordance with generally
accepted accounting principles on the basis of the most recent inventory
certificates delivered to Lender pursuant to the paragraph entitled "Affirmative
Covenants".
"Eligible Receivables" shall mean the dollar value of only such
--------------------
Receivables of Borrower arising from the sale and actual shipment of Inventory
or the full and complete rendition of services in the ordinary course of
business which has been fully performed by Borrower and in which only Lender
holds a senior security interest and as to which Lender, in its sole discretion,
shall from time to time determine to be Eligible Receivables. Without limiting
the discretion of Lender to consider any Receivable not to be an Eligible
Receivable, and by way of example only of types of Receivables that Lender will
consider not to be Eligible Receivables, Lender, notwithstanding any earlier
classification of eligibility may consider any Receivable not to be an Eligible
Receivable if: (i) any warranty is breached as to the Receivable; (ii) the
Receivable is not paid by the account debtor within 90 days from the date of the
invoice relating to such Receivable; (iii) the account debtor disputes liability
or makes any claim with respect to the Receivable; (iv) a petition in bankruptcy
or other application for relief under any insolvency law is filed with respect
to the account debtor owing the Receivable; (v) the account debtor on the
Receivable makes an assignment for the benefit of creditors, becomes insolvent,
fails, suspends, or goes out of business; (vi) the Receivable arises from a sale
to an account debtor outside the United States, unless the sale is on terms
acceptable to Lender in its sole discretion; (vii) the Receivable is owed by an
account debtor who owes Receivables of which more than 10% are more than 90 days
past the date of the invoices relating to such Receivables; (viii) the account
debtor is an Affiliate or employee of Borrower; (ix) the account debtor is also
a supplier or creditor of Borrower; (x) the account debtor is the United States
of America, or any department or any agency of any thereof, unless Borrower has
complied with the Assignment of Claims Act to Lender's satisfaction; (xi) the
Receivable (or any portion of the Receivable) is either a consignment Receivable
or a bonded Receivable or a retainage; (xii) the total Receivables owed by an
account debtor exceeds 20% of the total Receivables outstanding (30% of that
outstanding from OfficeMax), but only that portion that exceeds that percentage
would not be considered an Eligible Receivable; or (xiii) In its reasonable
discretion, Lender shall become dissatisfied with the creditworthiness of an
account debtor owing a Receivable.
"Equipment" shall have the meaning provided in the paragraph entitled
---------
"Security".
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as the same may from time to time be amended, and the rules and
regulations promulgated thereunder by any governmental agency or authority, as
from time to time in effect.
"ERISA Affiliate" shall mean, with respect to any Person, any trade or
---------------
business (whether or not incorporated) which is a member of a group of which
such Person is a member and which is under common control within the meaning of
Section 414 of the Code, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"ERISA Event" shall mean: (a) a Reportable Event described in Section
-----------
4043 of ERISA and the regulations issued thereunder (other than a Reportable
Event not subject to the provision for 30-day notice to the PBGC under such
regulations); (b) the withdrawal of Borrower or any ERISA Affiliate from a Plan
during a plan year in which it was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (c) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination under Section 4041 of
ERISA; (d) the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA; or (e) any other event or condition that might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
"Event of Default" shall have the meaning provided in the paragraph
----------------
entitled "Default and Remedies".
"GAAP" shall mean generally accepted accounting principles
----
consistently applied and maintained throughout the period indicated and
consistent with the audited financial statements delivered to Lender pursuant to
the paragraph entitled "General Representations and Warranties". Whenever any
accounting term is used herein which is not otherwise defined, it shall be
interpreted in accordance with GAAP.
"General Intangibles" shall have the meaning provided in the paragraph
-------------------
entitled "Security".
"Guarantor" - None.
---------
-2-
<PAGE>
"Guaranty(ies)" shall mean those certain Guaranties dated as of the
-------------
date hereof, from each of the Guarantors and any other agreement whereby a
Person guarantees the payment or performance of any of the Obligations.
"Independent Public Accountants" shall mean Levine, Hughes & Mithuen,
------------------------------
Inc. or any other firm of independent public accountants which is acceptable to
Lender.
"Inventory" shall have the meaning provided in the paragraph entitled
---------
"Security".
"Liabilities" of any Person shall mean those items which, in
-----------
accordance with GAAP, appear as liabilities on a balance sheet.
"Line Maintenance Fee" shall have the meaning provided in the
--------------------
paragraph entitled "Affirmative Covenants".
"Loan Administration Fee" shall have the meaning provided in the
-----------------------
paragraph entitled "Affirmative Covenants".
"Loan Document(s)" shall mean individually or collectively, as the
----------------
case may be, this Agreement, the Note, and all other documents executed,
delivered or referred to herein or therein, as originally executed and as
amended, modified or supplemented from time to time.
"Material Adverse Occurrence" shall mean any occurrence of whatsoever
---------------------------
nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental investigation or proceeding) which
Lender shall determine, in its sole discretion, could materially adversely
affect the present or prospective financial condition or operations of Borrower
or a Guarantor or impair the ability of Borrower or a Guarantor to perform its
obligations under this Agreement or any other Loan Document.
"Maturity Date" shall mean January 25, 2002, provided, however, that
-------------
the then current Maturity Date shall be extended by succeeding periods of 12
calendar months without notice to or action by either Borrower or Lender,
provided further however, that such extension shall not occur if: (i) Lender has
notified Borrower of an Event of Default that has occurred and is continuing, or
(ii) this Agreement has previously terminated as provided in the paragraph
entitled "Termination", or (iii) Lender has, in its sole and absolute
discretion, demanded payment of amounts owed hereunder, or (iv) Borrower or
Lender have notified the other of the intention not to renew at least sixty days
prior to the then current Maturity Date and thereafter no extension shall occur.
"Maximum Principal Amount" shall mean, at any date, Two Million and
------------------------
No/100ths Dollars ($2,000,000.00).
"Monthly Payment Date" shall mean the first day of each month.
--------------------
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
------------------
Section 4001(a)(3) of ERISA to which Borrower is making or accruing an
obligation to make contributions, or has within any of the preceding three plan
years made or accrued an obligation to make contributions.
"Net Profit" or "Net Loss" for any period shall mean net income or
---------- --------
loss from operations for such period, determined in accordance with GAAP
excluding, however, (i) extraordinary gains (including but not limited to the
conversion of debt to equity, the forgiveness of debt and the like), and (ii)
gains (whether or not extraordinary) from sales or other dispositions of assets
other than the sale of Inventory in the ordinary course of Borrower's business.
"Note" shall mean Borrower's revolving or promissory note of even date
----
payable to the order of Lender to evidence the Advances, including any
replacements, substitutions or amendments thereof.
"Obligations" shall have the meaning provided in the paragraph
-----------
entitled "Security".
"Origination Fee" shall have the meaning provided in the paragraph
---------------
entitled "Affirmative Covenants".
"Participant" shall mean each Person who purchases a participation
-----------
interest from Lender in the obligations.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
----
successor board, authority, agency, officer or official of the United States
administering the principal functions assigned on the date hereof to the Pension
Benefit Guaranty Corporation under ERISA.
"Person" shall mean any natural person, corporation, firm,
------
partnership, association, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Plan" shall mean each employee benefit plan or other class of
----
benefits covered by Title IV of ERISA, in either case whether now in existence
or hereafter instituted, of Borrower or any of its Subsidiaries.
"Prime Rate" shall mean the publicly announced base rate (or other
----------
publicly announced reference rate) charged by Norwest Bank Minnesota, National
Association; Borrower acknowledges that the Prime Rate may not be the lowest
rate made available by Lender to its customers and that Lender may lend to its
customers at rates that are at, above or below the Prime Rate.
"Receivables" shall have the meaning provided in the paragraph
-----------
entitled "Security".
"Reportable Event" shall have the meaning given to that term in Title
----------------
IV of ERISA.
-3-
<PAGE>
"Security Interest" shall mean any lien, pledge, mortgage,
-----------------
encumbrance, charge or security interest of any kind whatsoever (including,
without limitation, the lien or retained security title of a conditional vendor)
whether arising under a security instrument or as a matter of law, judicial
process or otherwise or the agreement by Borrower to grant any lien, security
interest or pledge, mortgage or encumber any asset.
"Subordinated Debt" shall mean indebtedness of Borrower for borrowed
-----------------
money which is subordinated to the Obligations on terms satisfactory to Lender
in its sole discretion.
"Subsidiary" of any Person shall mean any other corporation of which
----------
more than 50% of the outstanding shares of capital stock having ordinary voting
power for the election of directors is owned directly or indirectly by such
Person, by such Person and one or more Subsidiaries, or by one or more other
Subsidiaries.
"Termination Date" shall mean the earliest of (i) the Maturity Date or
----------------
(ii) the date upon which Lender's obligation to make Advances is terminated
pursuant to the paragraph entitled "Default and Remedies", or (iii) the date
upon which the obligations are declared to be due and payable (or automatically
become due and payable) upon the occurrence of an Event of Default as provided
in the paragraph entitled "Default and Remedies" or otherwise, or (iv) the date
upon which this Agreement terminates as provided in the paragraph entitled
"Termination", or (v) upon demand by Lender in its sole and absolute discretion.
"Withdrawal Liability" shall have the meaning given to that term in
--------------------
Title IV of ERISA.
3. Security. As security for all present and future sums loaned or
--------
advanced by Lender to Borrower and for all other obligations now or hereafter
chargeable to Borrower's loan account hereunder, and all other obligations and
liabilities of any and every kind of Borrower to Lender, due or to become due,
direct or indirect, absolute or contingent, joint or several, howsoever created,
arising or evidenced, now existing or hereafter at any time created, arising or
incurred (herein called "Obligations'), Borrower hereby grants to Lender a
security interest in and to the following property:
(a) All Receivables of Borrower now owned or hereafter acquired or
arising, together with all customer lists, original books and records,
ledger and account cards, computer tapes, discs, printouts and records,
whether now in existence or hereafter created. "Receivables" means all
rights of Borrower to the payment of money, whether or not earned and
howsoever evidenced or arising, including (without limitation) all present
and future "Accounts", accounts receivable, "Chattel Paper", "Instruments",
and rights to payment which are "General Intangibles" (as those terms are
used in the Commercial Code), all security therefor and all of Borrower's
rights as an unpaid seller of goods (including rescission, replevin,
reclamation and stopping in transit) and all of Borrower's rights to any
goods represented by any of the foregoing including returned or repossessed
goods;
(b) All Inventory of Borrower, whether now owned or hereafter acquired
and wherever located. "Inventory" includes all Goods (as defined in
Article 9 of the Commercial Code) intended for sale or lease or to be
furnished under contracts of service, all raw materials and work in process
therefor, all finished goods thereof, all materials and supplies of every
nature used or usable or consumed or consumable in connection with the
manufacture, packing, shipping, advertising, selling, leasing or furnishing
of such Goods, and all accessories thereto and all documents of title
therefor evidencing the same;
(c) All Equipment of Borrower, whether now owned or hereafter acquired
and wherever located. "Equipment" includes all of Borrower's Goods other
than Inventory, all replacements and substitutions therefor and all
accessions thereto, and specifically includes, without limitation, all
present and future machinery, equipment, vehicles, manufacturing equipment,
shop equipment, office and record keeping equipment, furniture, fixtures,
parts, tools and all other Goods (except Inventory) used or acquired for
use by Borrower for any business or enterprise;
(d) All General Intangibles and Deposit Accounts (as defined in
Article 9 of the Commercial Code) of Borrower, whether now owned or
hereafter acquired, including (without limitation) all present and future
domestic and foreign patents, patent applications, trademarks, trademark
applications, copyrights, trade names, trade secrets, patent and trademark
licenses (whether Borrower is licensor or licensee), shop drawings,
engineering drawings, blueprints, specifications, parts lists, manuals,
operating instructions, customer and supplier lists, licenses, permits,
franchises, the right to use Borrower's corporate name and the goodwill of
Borrower's business; and
(e) All Investment Property (as defined in the Commercial Code)
including but not limited to stock and other securities evidencing
ownership of any other organization, company or entity as well as all
amendments, extensions, renewals and replacements of the above, together
with all certificates, other instruments, options, rights, interest, and
other distributions issued as an addition to, in substitution or in
exchange for, or on account of, the same, all whether now existing or
hereafter arising and whether now owned or hereafter acquired; and
(f) All products and proceeds of any and all of the foregoing and all
products and proceeds of any other Collateral (as hereinafter defined)
including the proceeds of any insurance covering any of the Collateral, as
well as all Deposit Accounts (as
-4-
<PAGE>
defined in the Commercial Code), money, cash, and the like.
All such Receivables, Inventory, Equipment, General Intangibles, Investment
Property, Deposit Accounts, products and proceeds, together with all other
assets and properties of Borrower in or on which Lender is now or hereafter
granted a security interest, mortgage, lien or encumbrance pursuant to this
Agreement or otherwise, are hereinafter sometimes referred to as "Collateral".
4. Advances.
--------
(a) At the request of Borrower, Lender agrees, subject to the terms
and conditions hereinafter set forth, to make loans (each such loan being
herein sometimes called individually an "Advance" and collectively the
"Advances") to Borrower from time to time on any Business Day during the
period from the date hereof and ending on the Termination Date; provided,
---------
however, that Lender shall not be required to make any Advance if, after
-------
giving effect to such Advance, the aggregate unpaid principal amount of
Advances outstanding would exceed the lesser of the Borrowing Base or the
Maximum Principal Amount. The amount of each such Advance shall be charged
to Borrower's loan account. Borrower acknowledges that Lender may, but
shall not be obligated to, make an Advance at any time in an amount equal
to any overdraft in any account of Borrower maintained with Lender or any
Participant even if the aggregate unpaid principal amount of Advances
exceeds or would exceed the Borrowing Base or the Maximum Principal Amount.
(b) In order to obtain an Advance, Borrower shall give written or
telephonic notice to Lender, by not later than 11:00 a.m. (Minneapolis
time) on the day before the requested Advance is to be made. Lender, shall
make such Advance by transferring the amount thereof in immediately
available funds for credit to Borrower's account (other than a payroll
account), as specified in such notice. At the request of Lender, Borrower
shall confirm in writing any telephonic notice.
(c) The obligation of Lender to make Advances shall terminate on the
Termination Date.
(d) If at any time the sum of the aggregate outstanding principal
balance of the Advances exceeds the lesser of (i) the Maximum Principal
Amount or (ii) the Borrowing Base, then Borrower agrees to make, on demand,
a principal repayment on the Advances in an amount equal to such excess
together with accrued interest on the amount repaid to the date of
repayment. Borrower agrees that, on the Termination Date (or earlier upon
demand), it will repay the entire outstanding principal balance of the
Advances together with accrued interest thereon and all accrued fees
without presentment or demand for payment, notice of dishonor, protest or
notice of protest, all of which are hereby waived.
(e) The Advances shall be evidenced by the Note made by Borrower
payable to the order of Lender in a principal amount equal to the Maximum
Principal Amount; subject, however, to the provisions of the Note to the
------- -------
effect that the principal amount payable thereunder at any time shall not
exceed the then unpaid principal amount of all Advances made by Lender.
Borrower hereby irrevocably authorizes Lender to make or cause to be made,
at or about the time of each Advance made by Lender, an appropriate
notation on the records of Lender, reflecting the principal amount of such
Advance, and Lender shall make or cause to be made, on or about the time of
receipt of payment of any principal of the Note, an appropriate notation on
its records reflecting such payment. The aggregate amount of all Advances
set forth on the records of Lender shall be rebuttable presumptive evidence
of the principal amount owing and unpaid on the Note.
5. Demand Facility. All interest, principal, Advances, and any other
----------------
amounts owing hereunder are due ON DEMAND and Lender specifically reserves the
absolute right to demand payment of all such amounts at any time, for any reason
or no reason whatsoever. Lender's right to make such demand is not exclusive and
Lender may coincidentally or separately from such demand make further demand for
payment pursuant to the paragraph entitled "Default and Remedies" or otherwise
hereunder and, further, amounts may become due hereunder (pursuant to the
paragraph entitled "Default and Remedies" or otherwise) without a demand by
Lender, as provided in this agreement.
6. Interest. Borrower agrees to pay interest on the outstanding
--------
principal amount of the Note, at the close of each day at a fluctuating rate per
annum (computed on the basis of actual number of days elapsed and a year of 360
days) which is at all times equal to Three and one-half Percent (3 1/2%) in
excess of the Prime Rate; each change in such fluctuating rate caused by a
change in the Prime Rate to occur simultaneously with the change in the Prime
Rate; provided, however, that (i) in no event shall the interest rate in effect
hereunder at any time be less than 8% per annum; and (ii) interest payable
hereunder with respect to each calendar month shall not be less than $7,500
regardless of the amount of loans, Advances or other credit extensions that
actually may have been outstanding during the month. Interest accrued through
the last day of each month will be due and payable to Lender on the next Monthly
Payment Date, commencing February 1, 2000. Interest shall also be payable on the
Maturity Date or on any earlier Termination Date. Interest accrued after the
Maturity Date or earlier Termination Date shall be payable on Demand. Interest
may be charged to Borrower's loan account as an Advance at Lender's option,
whether or not Borrower then has the right to obtain an Advance pursuant to the
terms of this Agreement.
Notwithstanding the foregoing, after Lender has notified Borrower of the
occurrence of an Event of Default, the Note
-5-
<PAGE>
shall bear interest until paid at 5% per annum in excess of the rate otherwise
then in effect, which rate shall continue to vary based on further changes in
the Prime Rate; provided, however, that after an Event of Default, (i) in no
event shall the interest rate in effect under the Note at any time be less than
13% per annum; and (ii) interest payable under the Note with respect to each
calendar month shall not be less than $8,125 regardless of the amount of loans,
Advances or other credit extensions that actually may have been outstanding
during the month. The undersigned shall also pay a late fee equal to 10% of any
payment under the Note that is more than 10 days past due.
7. Set-Off; etc. Upon the occurrence of a Default or an Event of
------------
Default, Lender is hereby authorized at any time and from time to time, without
notice to Borrower (any such notice being expressly waived by Borrower), to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Lender or any Participant to or for the credit or the account of Borrower,
including specifically any amounts held in any account maintained at Lender or
any Participant, against any and all amounts which may be owed to Lender or any
Participant by Borrower whether in connection with this Agreement or otherwise
and irrespective of whether Borrower shall have made any requests under this
Agreement. Lender may also withdraw or obtain funds in any account at any
financial institution, company or otherwise without prior notice to Borrower.
Lender is expressly authorized to do so by a withdrawal under the Automated
Clearing House or ACH process.
8. Reports and Collections.
-----------------------
(a) Borrower agrees to furnish to Lender, at least weekly, schedules
describing Receivables created or acquired by Borrower (including
confirmatory written assignments thereof), and when requested by Lender,
copies of all invoices to account debtors and other obligors (all herein
referred to as "Customers") and copies of shipping or delivery receipts for
all goods sold, but if Borrower fails to do so the rights of Lender as a
secured party will not be impaired. At any time after the occurrence of an
Event of Default, Lender may notify Customers at any time that Receivables
have been assigned to Lender and collect them directly in Lender's own name
but unless and until Lender does so or gives Borrower other instructions,
Borrower shall make collection for Lender at Borrower's sole cost and
expense. Borrower shall advise Lender promptly of any goods which are
returned by Customers or otherwise recovered involving an amount in excess
of $10,000.00 and, unless instructed to deliver such goods to Lender,
Borrower shall resell them for Lender and assign or deliver to Lender the
resulting Receivables or other proceeds. Borrower shall also advise Lender
promptly of all disputes and claims by Customers involving an amount in
excess of $10,000.00 and settle or adjust them at no expense to Lender. At
any time after the occurrence and during the continuance of an Event of
Default, Lender may at all times settle or adjust such disputes and claims
directly with the Customers for amounts and upon terms which Lender
considers advisable. If Lender so directs at any time after an Event of
Default, no discount, credit or allowance shall be granted by Borrower to
any Customer and no return of goods shall be accepted by Borrower without
Lender's written consent.
(b) Borrower agrees to furnish to Lender Inventory certifications in
accordance with the paragraph entitled "Affirmative Covenants" and a
physical listing of all Inventory, wherever located, at least once every
twelve months or, in either case, as more frequently requested by Lender.
(c) All full and partial payments and any other cash collections from
whatever source whatsoever, whether or not arising from the sale,
collection or other disposition of Collateral (whether or not in the
ordinary course of business), including but not limited to the collection
of accounts receivable in the ordinary course of business and the ordinary
sale of inventory or services for cash, shall immediately be delivered by
Borrower to Lender in their original form (except for endorsement where
necessary) and uncashed (in the case of checks or other documents).
Borrower shall direct all customers and other remitters of payments to mail
payments to Lender's post office box or other lockbox. Until such payments
are so delivered to Lender (or Lender's lockbox), such payments shall be
held in trust by Borrower for and as Lender's property and shall not be
commingled with any funds of Borrower. The net amount received by Lender
as proceeds arising from the sale or other disposition of Collateral will
be credited by Lender to Borrower's loan account (subject to final
collection thereof): (1) for purposes of interest calculation only, as of
the date of deposit; and (2) for other purposes, after allowing the number
of days required by the applicable bank for collection of checks and other
instruments.
9. Warranty as to Collateral. Borrower warrants that:
-------------------------
(a) all Receivables listed in or reported on Borrower's schedules
will, when Borrower delivers the schedules to Lender, be bona fide existing
obligations created by the sale and actual delivery of goods or the
rendition of services to Customers in the ordinary course of business, not
subject to return, evaluation or other condition, and which Borrower then
owns free of any Security Interest except for the Security Interest in
favor of Lender created by this Agreement or Security Interests permitted
under the paragraph entitled "Negative Covenants", and which are then
unconditionally owing to Borrower without defense, offset or counterclaim;
and that all copies of shipping or delivery receipts, invoice copies and
other documents furnished to Lender in connection therewith will be true
and correct; and
-6-
<PAGE>
(b) all Eligible Inventory and Equipment is and shall be owned by
Borrower, free of any Security Interest except for the Security Interest of
Lender created by this Agreement or Security Interests permitted by the
paragraph entitled "Negative covenants".
Lender's rights to and security interest in the Collateral will not be impaired
by the ineligibility of any such Collateral for Advances and will continue to be
effective until all obligations chargeable to Borrower's loan account have been
fully satisfied.
10. Power of Attorney. Borrower authorizes and appoints Lender, or any of
-----------------
Lender's officers, employees or agents whom Lender may from time to time
designate, as Borrower's attorney with power to: (a) to endorse Borrower's name
on any checks, notes, acceptances, drafts or other forms of payment or security
that may come into Lender's possession; (b) to sign Borrower's name on any
invoice or bill of lading relating to any Receivables, on drafts against
Customers, on schedules and confirmatory assignments of Receivables, on notices
of assignment, financing statements and amendments under the Commercial Code and
other public records, on verifications of accounts and on notices to Customers;
(c) to notify the post office authorities to change the address for delivery of
Borrower's mail to an address designated by Lender; (d) to receive, open and
dispose of all mail addressed to Borrower; (e) to send requests for verification
of accounts to Customers; (f) to obtain information from any bank, creditor,
customer or other Person regarding Borrower's relationship, account, history
etc.; (g) to sign lien waivers and other releases or satisfactions of claims or
rights by Borrower in exchange for payment or other consideration which Lender
in its sole discretion believes is appropriate under the circumstances; and (h)
to directly verify and/or confirm the existence, authenticity, accuracy or terms
of any Receivable (both in Lender's own name or in Borrower's name) without
previously notifying Borrower of its intention to do so and Borrower grants its
consent to Lender for Lender's employees and agents to represent themselves as
employees or agents of Borrower for these purposes; provided however, that the
powers specified in clauses (b), (c), (d), (f) and (g) above may be exercised
only after the occurrence and notice of an Event of Default. Borrower ratifies
and approves all acts of the attorney. Neither Lender nor the attorney will be
liable for any acts of commission or omission nor for any error in judgment or
mistake of fact or law. This power, being coupled with an interest, is
irrevocable so long as any Receivable in which Lender has a security interest or
any Obligation remains unpaid. Borrower waives presentment and protest of all
instruments and notice thereof, notice of default and dishonor and all other
notices to which Borrower may otherwise be entitled except and if, and when
where expressly provided elsewhere.
11. Location of Collateral. Borrower warrants that its chief executive
----------------------
office is at the address stated in the opening paragraph of this Agreement and
that, unless indicated otherwise here, its books and records concerning
Receivables are located at the same address. Unless indicated otherwise here,
Borrower's Inventory, Equipment and other goods are located at the same address:
[Location of collateral]
-
Receivable Records, Inventory and Equipment:
--------------------------------------------
CommWorld headquarters
7315 S. Revere Parkway, Suite 602
Englewood, CO 80112
CommWorld/CRI
1110 E. Collins Blvd., Suite 100
Richardson, TX 75081
CommWorld/RMS
3201 Bishop Drive
Arlington, TX 76010
CommWorld/West-Tech
17301 W. Colfax Ave., Suite 165
Golden, CO 80401
CommWorld of Denver (Sales office)
6070 S. Greenwood Plaza Blvd., Suite 110
Englewood, CO 80111
Borrower shall immediately notify Lender if any additional locations for
Collateral are subsequently established. Borrower shall not change the location
of its chief executive office, the place where it keeps its books and records,
or the location of any Collateral (except for sales of Inventory in the ordinary
course of business) until Borrower has obtained the written consent of Lender
and all necessary filings have been made and other actions taken to continue the
perfection of Lender's Security Interest in such new location. Lender's
Security Interest attaches to all the Collateral wherever located, and the
failure of Borrower to inform Lender of the location of any item or items of
Collateral shall not impair Lender's Security Interest therein.
12. Ownership and Protection of Collateral. Borrower warrants, represents
--------------------------------------
and covenants to Lender that the Collateral is now and, so long as Borrower is
obligated to Lender, will be owned by Borrower free and clear of all Security
Interests except for the Security Interest in favor of Lender created by this
Agreement and except the Security Interests, if any, permitted by the paragraph
entitled "Negative Covenants", and that said Collateral, including the
Receivables and proceeds resulting from the collection, sale or other
disposition thereof, will remain free and clear of any and all Security
Interests except for the Security Interest in favor of Lender created by this
Agreement and except the Security Interests, if any, permitted under the
paragraph entitled "Negative Covenants". Borrower will not sell, lease or
otherwise dispose of the Collateral, or attempt to do so (except for sales of
Inventory in the ordinary course of business and sales of obsolete and worn
equipment not in excess of $25,000 in the aggregate in any calendar year)
without the prior written consent of Lender unless the proceeds of any such sale
are paid to Lender for application on Borrower's Obligations. After the
occurrence of a Default or an Event of Default, Lender will at all times have
the right to take physical possession of any
-7-
<PAGE>
Inventory and Equipment constituting Collateral and to maintain such possession
on Borrower's premises or to remove the same or any part thereof to such other
places as Lender may wish. If Lender exercises Lender's right to take possession
of such Collateral, Borrower shall on Lender's demand, assemble the same and
make it available to Lender at a place reasonably convenient to Lender. Borrower
shall at all times keep the Equipment constituting Collateral in good condition
and repair. All expenses of protecting, storing, warehousing, insuring, handling
and shipping of the Collateral, all costs of keeping the Collateral free of any
Security Interests prohibited by this Agreement and of removing the same if they
should arise, and any and all excise, property, sales and use taxes imposed by
any state, federal or local authority on any of the Collateral or in respect of
the sale thereof, shall be borne and paid by Borrower and if Borrower fails to
promptly pay any thereof when due, Lender may, at its option, but shall not be
required to, pay the same and charge Borrower's loan account therefor. Borrower
agrees to renew all insurance required by this Paragraph or the paragraph
entitled "Insurance" at least 30 days prior to its expiration. Borrower agrees
that, with respect to any Inventory maintained in a public warehouse, (i)
Borrower will ensure that any warehouse receipts issued are not in a negotiable
form, (ii) Borrower will, upon request from Lender, deliver all warehouse
receipts to Lender, and (iii) Borrower will cause the public warehouseman to
execute an agreement similar to those delivered pursuant to the paragraph
entitled "Conditions Precedent to Initial Advance" in form and substance
satisfactory to Lender.
13. Perfection of Security Interest. Borrower agrees to execute such
-------------------------------
financing statements together with any and all other instruments or documents
and take such other action, including delivery, as may be required to create,
evidence, perfect and maintain Lender's Security Interest in the Collateral and
Borrower shall not in any manner do any act or omit to do any act which would in
any manner impair or invalidate Lender's Security Interest in the Collateral or
the perfection thereof.
14. Insurance. Borrower shall maintain insurance coverage on any
---------
Collateral other than Receivables with such companies, against such hazards, and
in such amounts as may from time to time be acceptable to Lender and shall
deliver such policies or copies thereof to Lender with satisfactory lender's
loss payable endorsements naming Lender. Each policy of insurance shall contain
a clause requiring the insurer to give not less than 30 days prior written
notice to Lender in the event of any anticipated cancellation of the policy for
any reason and a clause that the interest of Lender shall not be impaired or
invalidated by any act or neglect of Borrower nor by the occupation of the
premises wherein such Collateral is located for purposes more hazardous than are
permitted by said policy. Borrower will maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies of such types (which may include,
without limitation, public and product liability, larceny, embezzlement, or
other criminal misappropriation insurance) and in such reasonable amounts as may
from time to time be required by Lender.
15. Borrower's Account. Lender may charge to Borrower's loan account at
------------------
any time the amounts of all Obligations (and interest, if any, thereon) owing by
Borrower to Lender, including (without limitation) loans, Advances, debts,
liabilities, obligations acquired by purchase, assignment or participation and
all other obligations, whenever arising, and whether due or to become due; also
the amount of all costs and expenses and all attorneys' fees and legal expenses
incurred in connection with efforts made to enforce payment of such obligations,
or to obtain payment of any Receivables, or the foreclosure of any Collateral or
in the prosecution or defense of any actions or proceedings relating in any way
to this Agreement (including but not limited to bankruptcy or insolvency
proceedings) whether or not suit is commenced, including reasonable attorneys'
fees and legal expenses incurred in connection with any appeal of a lower
court's order or judgment; and also the amounts of all unpaid taxes and the
like, owing by Borrower to any governmental authority or required to be
deposited by Borrower, which Lender pays or deposits for Borrower's account. All
of Borrower's borrowings hereunder and (unless otherwise specified) all other
obligations which are chargeable to Borrower's loan account shall be payable ON
DEMAND; recourse to security will not be required at any time. All sums at any
time standing to Borrower's credit on Lender's books and all of Borrower's
property at any time in Lender's possession or upon or in which Lender has a
Security Interest, may be held by Lender as security for all obligations which
are chargeable to Borrower's loan account. Subject to the foregoing, Lender, at
Borrower's request, will remit to Borrower any net balance standing to
Borrower's credit on Lender's books. Lender will account to Borrower monthly and
each monthly accounting will be fully binding on Borrower, unless, within thirty
days thereafter, Borrower gives Lender specific written notice of exceptions.
All debit balances in Borrower's loan account will bear interest as provided in
the paragraph entitled "Interest" of this Agreement. If Lender so requests at
any time, Borrower will immediately execute and deliver to Lender a promissory
note in negotiable form payable on demand to Lender's order in a principal
amount equal to the amount of the debit balance in Borrower's loan account, with
interest as provided in the paragraph entitled "Interest". In any event,
Borrower covenants to pay all Advances, debts, accounts and interest when due.
16. Participations. If any Person shall acquire a participation in
--------------
Advances made to Borrower hereunder, Borrower hereby grants to Lender as well as
any such Person holding a participation, and Lender and such Person shall have
and are hereby given a continuing Security Interest in any money, securities and
other property of Borrower in the custody or possession of such Participant,
including the right of set-off as fully as if such Participant had lent directly
to Borrower the amount of such participation. Borrower hereby grants to Lender
its continuing authority and consent to release any and all financial and other
information related to Borrower's financial condition, performance, its
business, operations or any other matter whatsoever to any of Borrower's
creditors (both secured and unsecured), to any Participant, or to any other
Person for their consideration of a possible participation in Advances by that
Person.
-8-
<PAGE>
17. General Representations and Warranties. To induce Lender to make
--------------------------------------
Advances hereunder, Borrower makes the following representations and warranties,
all of which shall survive the initial Advance:
(a) Each Borrower is a corporation duly organized, existing, and in
good standing under the laws of the State of Colorado (except for CommWorld
Acquisition Corporation which is a Texas corporation), has corporate power
to own its property and to carry on its business as now conducted, and is
duly qualified to do business in all states in which the nature of its
business requires such qualification except where failure would not cause a
Material Adverse Occurrence. During the past five years, Borrower has done
business solely under its name(s) listed above as "Borrower", as well as
those names described in paragraph 11 above, as well as the following
names:
[Old names, trade names and dba names]
CommWorld
Interconnect Acquisition Corporation
CRI
CommWorld of Denver
CommWorld Nationwide
CommWorld International
CommWorld of Seattle
CommWorld of Tucson
CommWorld of Phoenix
CommWorld Nations Capitol Area
Borrower does not own any capital stock of any corporation, except for
corporations which may be a joint borrower hereunder or which are providing
a Guaranty or which are listed here:
[Corporate stock owned]
Donaldson & Associates, Inc.
Willpower, Inc.
CommWorld of Seattle, Inc.
CommWorld of Tucson, Inc.
CommWorld of Phoenix, Inc.
(b) The execution and delivery of this Agreement and the other Loan
Documents and the performance by Borrower of its obligations hereunder and
thereunder do not and will not conflict with any provision of law, or of
the charter or bylaws of Borrower, or of any agreement binding upon
Borrower, provided, however, that certain customer, depository, insurance,
vendor and lease agreements may prohibit the assignment of certain of
Borrower's rights under or interests in or deposits made pursuant to such
agreements.
(c) The execution and delivery of this Agreement and the other Loan
Documents have been duly authorized by all necessary corporate action by
directors/governors and shareholders/members of Borrower; and this
Agreement and the other Loan Documents have in fact been duly executed and
delivered by Borrower and constitute its lawful and binding obligations,
legally enforceable against it in accordance with their respective terms.
(d) Unless listed here,
[Lawsuit case names]
Dairy Fresh v. Communications World International
___________________________________________________________________________
___________________________________________________________________________
there is no action, suit or proceeding at law or equity, or before or by
any federal, state, local or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, pending or,
to the knowledge of Borrower, threatened against Borrower or any Guarantor
or the property of Borrower or any Guarantor which, if determined
adversely, would be a Material Adverse Occurrence, and neither Borrower nor
any Guarantor is in default with respect to any final judgment, writ,
injunction, decree, rule or regulation of any court or federal, state,
local or other governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, where the effect of such default
would be a Material Adverse Occurrence.
(e) The authorization, execution and delivery of this Agreement, and
the payment of the loans and interest hereon, is not, and will not be,
subject to the jurisdiction, approval or consent of any federal, state or
local regulatory body or administrative agency.
(f) All of the assets of Borrower are free and clear of Security
Interests except for (i) equipment leases on specific equipment (and not in
equipment generally) which are disclosed on a Uniform Commercial Code
search in the states where equipment is located as disclosed above under
"Location of Collateral"; (ii) those Security Interests which have been
expressly subordinated to by Lender on an agreement in form and substance
satisfactory to Lender; (iii) security interests disclosed on Uniform
Commercial Code and other lien searches performed on behalf of Lender in
connection with the preparation and negotiation of this agreement; (iv)
liens for taxes or assessments not delinquent, landlord and other statutory
liens. No Borrower shall be deemed to have made any representation as to
the perfection of any security interest in any Collateral which may not be
perfected by filing of a Uniform Commercial Code financing statement with
the office of the Secretary of State in any Borrower location set forth in
paragraph 11 hereof.
(g) Borrower has filed all federal, state and local tax returns which,
to the knowledge of Borrower, are required to be filed, except where
failure to file would not cause a Material Adverse Occurrence,
-9-
<PAGE>
and Borrower has paid all taxes shown on such returns and all assessments
which are due. Borrower has made all required withholding deposits.
Borrower does not have knowledge of any objections to or claims for
additional taxes by federal, state or local taxing authorities for
subsequent years which would be a Material Adverse Occurrence.
(h) Borrower has furnished to Lender various personal and
organizational financial statements. All such statements were prepared in
accordance with GAAP and present fairly the financial condition of Borrower
and other person and/or entity for which each statement relates. There has
been no material adverse change in the condition of Borrower and the other
person and/or entity relating to such statements, financial or otherwise,
since the date of the most recent of such financial statements.
(i) The value of the assets and properties of Borrower at a fair
valuation and at their then present fair salable value is and, after giving
effect to any pending Advance and the application of the amount advanced,
will be greater than its total liabilities, including Contingent
Obligations, and Borrower has (and has no reason to believe that it will
not have) capital sufficient to pay its liabilities, including Contingent
Obligations, as they become due.
(j) Borrower is in compliance with all requirements of law relating to
pollution control and environmental regulations in the respective
jurisdictions where Borrower is presently doing business or conducting
operations.
(k) All amounts obtained pursuant to Advances will be used for
Borrower's working capital purposes.
(l) Except for the trademarks, patents, copyrights and franchise
rights listed here, Borrower is not the owner of any patent, trademark,
copyright or franchise rights, except for common law trademark rights
pertaining to names of Borrowers described in paragraph 17 (a) above:
[Trademarks, patents, copyrights and franchise rights]
As franchisor, various franchise agreements whereby Borrower will sell
equipment to franchisees at a markup.
(m) (i) Each Plan is in compliance in all material respects with all
applicable provisions of ERISA and the Code; (ii) the aggregate present
value of all accrued vested benefits under all Plans (calculated on the
basis of the actuarial assumptions specified in the most recent actuarial
valuation for such Plans) did not exceed as of the date of the most recent
actuarial valuation for such Plans the fair market value of the assets of
such Plans allocable to such benefits; (iii) Borrower is not aware of any
information since the date of such valuations which would materially affect
the information contained therein; (iv) no Plan which is subject to Part 3
of Subtitle B of Title I of ERISA or Section 412 of the Code has incurred
an accumulated funding deficiency, as that term is defined in Section 302
of ERISA or Section 412 of the Code (whether or not waived); (v) no
liability to the PBGC (other than required premiums which have become due
and payable, all of which have been paid) has been incurred with respect to
any Plan, and there has not been any Reportable Event which presents a
material risk of termination of any Plan by the PBGC; and (vi) Borrower has
not engaged in a transaction which would subject it to tax, penalty or
liability for prohibited transactions imposed by ERISA or the Code.
Borrower does not contribute to any Multiemployer Plan.
(n) No part of any Advance shall be used at any time by Borrower to
purchase or carry margin stock (within the meaning of Regulation U
promulgated by the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying any
margin stock. Borrower is not engaged principally, or as one of its
important activities, in the business of extending credit for the purposes
of purchasing or carrying any such margin stock. No part of the proceeds
of any Advance will be used by Borrower for any purpose which violates, or
which is inconsistent with, any regulations promulgated by the Board of
Governors of the Federal Reserve System.
(o) Borrower is not an "investment company", or an "affiliated person"
of, or a "promoter" or "principal underwriter" for, an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended. The making of the Advances, the application of the proceeds
and repayment thereof by Borrower and the performance of the transactions
contemplated by this Agreement will not violate any provision of said Act,
or any rule, regulation or order issued by the Securities and Exchange
Commission thereunder.
(p) Borrower has a three classes of stock (common, Series C Preferred
and Series F Preferred) and the owners of at least 5% of such common voting
stock/interest outstanding is as follows (rounded to nearest percent):
[Significant Owners and shares owned]
[For Corporations]
Name of Shareholders Percent of
- --------------------
outstanding
Shares
------
Lionel Brown 7.9%
James Ciccarelli 12.5%
-10-
<PAGE>
Steven Bathgate 10.4%
Eugene McColley 5.7%
Borrower has not: (i) issued any unregistered securities in violation of
the registration requirements of Section 5 of the Securities Act of 1933,
as amended, or any other law; or (ii) violated any rule, regulation or
requirement under the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, in either case where the effect of such
violation would be a Material Adverse Occurrence. No proceeds of the
Advances will be used to acquire any security in any transaction which is
subject to Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended.
(q) Except for Contingent Obligations listed here, Borrower does not
have any Contingent Obligations.
[Contingent Obligations list - Attach details to Agreement]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(r) All factual information heretofore or herewith furnished by or on
behalf of Borrower to Lender for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all other such
factual information hereafter furnished by or on behalf of Borrower to
Lender will be, true and accurate in every material respect on the date as
of which such information is dated or certified and no such information
contains any material misstatement of fact or omits to state a material
fact or any fact necessary to make the statements contained therein not
misleading.
(s) Each representation and warranty shall be deemed to be restated
and reaffirmed to Lender on and as of the date of each Advance under this
Agreement (except where otherwise disclosed by Borrower to Lender in
writing) and except that any reference to the financial statements referred
to in the paragraph entitled "General Representations and Warranties" shall
be deemed to refer to the financial statements then most recently delivered
to Lender pursuant to the paragraph entitled "Affirmative Covenants".
18. Affirmative Covenants. Borrower agrees that it will:
---------------------
(a) Furnish to Lender in form satisfactory to Lender the following,
all of which will conform to GAAP:
(i) Within 105 days after the end of each fiscal year of
Borrower, a complete audited financial report prepared and certified
by Independent Public Accountants on a Consolidated and consolidating
basis for Borrower and any Consolidated Subsidiaries of Borrower;
together with a copy of the management letter or memorandum, if any,
delivered by such independent certified public accountant to Borrower
and Borrower's response thereto. If Borrower shall fail to supply the
report within such time limit, Lender shall have the right (but not
the duty) to employ certified public accountants acceptable to Lender
to prepare such report at Borrower's expense;
(ii) Within 45 days after the end of each month, a balance sheet
with operating figures as to that month, certified as correct by the
chief financial officer or treasurer of Borrower but subject to
adjustments as to inventories or other items to which an officer of
Borrower directs attention in writing, together with a reconciliation
of any variances between the information provided on such balance
sheet and the information for that day previously delivered to Lender
pursuant to the paragraph entitled "Affirmative Covenants";
(iii) With each of the financial statements described above, a
compliance certificate in form and substance satisfactory to Lender
and certified as true and accurate by the president, chief executive
officer, chief financial officer or treasurer of Borrower;
(iv) Within 10 days after the end of each month, an aging of
accounts receivable together with a reconciliation in a form
satisfactory to Lender and an aging of accounts payable in form
acceptable to Lender, both certified as true and accurate by an
officer of Borrower;
(v) Within 10 days after the end of each month, an inventory
certification report for all Inventory at all locations and in form
acceptable to Lender and certified as true and accurate by an officer
of Borrower; and
(vi) Prior to its release, all press releases and/or
announcements, whether or not Borrower is a so called "public
company"; and
(vii) From time to time, at Lender's request, any and all other
material, reports, information, tax returns and/or figures reasonably
required by Lender.
-11-
<PAGE>
(b) Except where and limited to circumstances where the Independent
Public Account/client privilege is materially and adversely affected,
permit Lender and its representatives access to, and the right to make
copies of, the books, records, and properties of Borrower at all reasonable
times; and permit Lender and its representatives to discuss Borrower's
financial matters with officers of Borrower and with its Independent Public
Accountant (and, by this provision, Borrower authorizes its Independent
Public Accountant to participate in such discussions).
(c) Pay when due all taxes, assessments, and other liabilities against
it or its properties except those which are being contested in good faith
and for which an adequate reserve has been established; Borrower shall make
all withholding payments when due;
(d) Promptly notify Lender in writing of any substantial change in
present management or present business, of its intention to enter into a
new business or industry, or of its intention to wind down, liquidate or
close substantially all of its business;
(e) Pay when due all amounts necessary to fund in accordance with its
terms any Plan;
(f) Comply in all material respects with all laws, acts, rules,
regulations and orders of any legislative, administrative or judicial body
or official applicable to Borrower's business operation or Collateral or
any part thereof; provided, however, that Borrower may contest any such
-------- -------
law, act, rule, regulation or order in good faith by appropriate
proceedings so long as (i) Borrower first notifies Lender of such contest,
and (ii) such contest does not, in Lender's sole discretion, adversely
affect Lender's right or priority in the Collateral or impair Borrower's
ability to pay the Obligations when due;
(g) Permit Lender and its representatives, at any time during the
course of normal business hours, to examine and inspect any Collateral, and
to examine, inspect and copy the Borrower's records pertaining to the
Collateral and the Borrower's financial condition, business and property.
(h) Loan Administration Fee. Pay Lender for the period commencing on
------------------------
the date of this Agreement and continuing through the date of full payment
of all Obligations, a reasonable administration fee (herein called the
"Loan Administration Fee"), which shall be equal to the sum of $4,000 per
calendar quarter (or any partial quarter), commencing as of the date hereof
and pro-rated for the balance of the current calendar quarter. The Loan
Administration Fee shall be non-refundable, shall be deemed earned when
paid, and shall be payable to Lender as of the date hereof (for the balance
of the current calendar quarter), and thereafter on January 1, 2000 and on
the first day of each subsequent 3 month period/quarter. The existence or
payment of the Loan Administration Fee, Line Maintenance Fee or any other
fee or charge, shall in no way alter or diminish the obligation to pay
interest, Lender's costs of collection and attorneys' fees, or any other
fees or charges imposed under this agreement or any other agreement between
Lender and Borrower or any Guarantor;
(i) Line Maintenance Fee. Pay Lender, for the period commencing on
---------------------
the date of this Agreement and continuing through the Termination Date, a
non-refundable line maintenance fee (the "Line Maintenance Fee") $20,000
per annum (less the $10,000 survey fee which has already been paid and
which is credited against the first year's Line Maintenance Fee). Such Line
Maintenance Fee shall be payable to Lender in advance on the Closing Date
and on the first day of each subsequent anniversary of this agreement until
all amounts owing hereunder are repaid in full. The Line Maintenance Fee
shall be non-refundable and shall be deemed earned when paid.
(j) Promptly notify Lender in writing of (x) any litigation which (i)
involves an amount in dispute in excess of $25,000.00 (ii) relates to the
matters which are the subject of this Agreement, or (iii) if determined
adversely to Borrower would be a Material Adverse Occurrence; and (y) any
adverse development in any litigation described in clause (x).
(k) Promptly notify Lender of any Default or Event of Default.
(l) As of the calendar quarter ending 6/30/00, and as of the end of
each subsequent calendar quarter, Borrower shall achieve a Net Profit PLUS
any amortization of goodwill related to any past or future acquisition of
at least $1.00 on a year-to-date basis and before income tax.
19. Negative Covenants. Borrower agrees that, without Lender's written
------------------
consent, it will not:
(a) Expend or contract to expend an aggregate in excess of $100,000
for fixed assets in any fiscal year, whether by way of purchase, lease or
otherwise, and whether payable currently or in the future; provided
however, that this subparagraph (a) shall not apply to debt related to
acquisitions permitted by subparagraph (f) below as long as such debt is
unsecured (other than potential liens in the stock of any new subsidiary)
and such debt is further subordinated to Lender under terms satisfactory to
Lender.
(b) Purchase or redeem any shares of Borrower's capital stock; or
declare or pay any
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<PAGE>
dividends (other than dividends payable in capital stock); or make any
distribution to stockholders of any assets of Borrower.
(c) Incur or permit to exist any indebtedness, secured or unsecured,
for money borrowed, except: (i) borrowings under this Agreement; (ii)
indebtedness, not exceeding $50,000.00 at any one time in the aggregate
outstanding, which was incurred to acquire fixed assets, but only to the
extent that such fixed asset acquisition is permitted by this paragraph
entitled "Negative Covenants"; or (iii) borrowings, if any, which are
existing on the date of this Agreement, which exceed $25,000 and which are
listed here (rounded to nearest $1,000):
[Debt over $25,000 - Attach details to Agreement]
Total
Name of Creditor Amount Owed
---------------- -----------
(rounded to $1,000s)
TAIS $ 238
Donaldson $ 630
Century Capital $ 42
Clappisi Holdings $ 370
Pierre Miossec $ 139
Convertible subordinated debt $2,200
(d) Create or permit to exist any Security Interest on any assets now
owned or hereafter acquired except: (i) those created in Lender's favor and
held by Lender; (ii) liens of current taxes not delinquent or taxes which
are being contested in good faith for which an adequate reserve has been
established; (iii) purchase money security interests securing indebtedness
permitted by this paragraph entitled "Negative Covenants"; provided,
however, that such Security Interest extends only to the fixed assets
acquired with the proceeds of such indebtedness; (iv) Security Interests
disclosed above, securing only debt outstanding on the date of this
Agreement and which is described above; and (v) security interests
described in paragraph 17 (f).
(e) Unless provided for under subparagraph (l) below, effect any
recapitalization; or be a party to any merger or consolidation; or, except
in the normal course of business, sell, transfer, convey or lease all or
any substantial part of its property; or sell or assign (except to Lender),
with or without recourse, any Receivables or General Intangibles.
(f) Enter into a new business or purchase or otherwise acquire any
business enterprise or any substantial assets of any person or entity; or
make any loans to any person or entity; or purchase any shares of stock of,
or similar interest in, or make any capital contribution to or investment
in, any entity, except that Borrower may purchase or acquire other business
enterprises (by stock, asset acquisition or the like) without Lender's
consent provided that: (1) Borrower provides to Lender written notice of
the occurrence of and details surrounding the transaction promptly upon its
completion; and (2) the aggregate of the cash used in all such purchases
does not exceed the aggregate amount of cash proceeds obtained from
subordinated debt and equity fund raising efforts during the 12 months
prior to any such transaction;
(g) Permit more than $150,000.00 to be owing at any one time to
Borrower by all of Borrower's employees, officers, directors, or
shareholders, or members of their families, as a result of any borrowings,
purchases, travel advances or other transactions or events;
(h) Become a guarantor or surety or pledge its credit or its assets on
any undertaking of another, except for the Contingent Obligations shown
above;
(i) In any fiscal year pay excessive or unreasonable salaries,
bonuses, fees, commissions, fringe benefits or other forms of compensation
(such salaries, bonuses, fees, commissions, fringe benefits or other forms
of compensation being "Compensation") to any of its officers or directors
or any Guarantor; or increase the Compensation of any officers or Guarantor
by more than ten percent (10%) or pay any such increases in Compensation of
officers or Guarantors other than from profits earned in the year of such
payment;
(j) Permit any default to occur under the terms of any loan agreement,
note, loan agreement, lease, mortgage, security agreement, or other
contractual obligation between Borrower and Lender;
(k) Permit any default to occur (and to continue beyond the applicable
cure period) under the terms of any Loan Document, note, lease, mortgage,
contract for deed, security agreement, or other contractual obligation
binding upon Borrower with anyone other than Lender and which will result
in a Materially Adverse Occurrence on Borrower;
(l) Make any substantial change in its present business, enter into a
new business or industry, or take actions to wind down, liquidate or close
substantially all of its business, provided that Borrower may issue new
shares by sale or in relation to a business acquisition without Lender's
consent provided that:
i. any acquired business is substantially consistent with
Borrower's current business;
-13-
<PAGE>
ii. Borrower notifies Lender of such acquisition promptly upon
its completion, providing all requested details thereof;
iii. Borrower does not increase its outstanding stock by more
than 30% in each acquisition.
Further, without Lender's consent, Borrower may issue new shares in a
capitalization offering provided that Borrower does not issue more than 30%
of its outstanding shares in such transaction.
(m) Enter into any agreement providing for the leasing by Borrower of
property which has been or is to be sold or transferred by Borrower to the
lessor thereof, or which is substantially similar in purpose to the
property so sold or transferred;
(n) Change its terms of trade with respect to the due date of any
Eligible Receivable;
(o) Change its fiscal year;
(p) (i) Permit or suffer any Plan maintained for employees of Borrower
or any commonly controlled entity to engage in any transaction which
results in a liability of Borrower under Section 409 or 502(i) of ERISA or
Section 4975 of the Code; (ii) permit or suffer any such Plan to incur any
"accumulated funding deficiency" (within the meaning of Section 302 of
ERISA and Section 412 of the Code), whether or not waived; (iii) terminate,
or suffer to be terminated, any Plan covered by Title IV of ERISA
maintained by Borrower or any commonly controlled entity or permit or
suffer to exist a condition under which PBGC may terminate any such Plan;
or (iv) permit to exist the occurrence of any Reportable Event (as defined
in Title IV of ERISA) which represents termination by the PBGC of any Plan;
(q) Enter into any transaction with any Affiliate of Borrower upon
terms and conditions less favorable to Borrower than the terms and
conditions which would apply in a similar transaction with an unrelated
third party;
(r) Enter into any agreement containing any provision which would be
violated or breached by Borrower under any Loan Document or by the
performance by Borrower of its obligations under any Loan Document;
(s) Amend or modify the provisions of any Subordinated Debt; or
(t) Maintain any Inventory at a warehouse which issues negotiable
warehouse receipts with respect to such inventory.
20. Availability of Collateral. Lender may from time to time, for its
--------------------------
convenience, segregate or apportion the Collateral for purposes of determining
the amounts and maximum amounts of Advances which may be made hereunder.
Nevertheless, Lender's security interest in all such Collateral, and any other
collateral rights, interests and properties which may now or hereafter be
available to Lender, shall secure and may be applied to the payment of any and
all loans, Advances and other Obligations secured by Lender's security interest,
in any order or manner of application and without regard to the method by which
Lender determines to make Advances hereunder.
21. Default and Remedies. It shall be an Event of Default under this
--------------------
Agreement if:
(a) Borrower fails to make any payment required under this Agreement
or any present or future supplements hereto or under any other agreement
between Borrower and Lender when due, or if payable upon demand, upon
demand; or
(b) Borrower fails to perform or observe any covenant, condition or
agreement contained in this Agreement or in any other Loan Document; or
(c) Any warranty, representation or statement made or furnished to
Lender by or on behalf of Borrower or any Guarantor proves to have been
false, incorrect or misleading in a material respect when made; or
(d) A proceeding seeking an order for relief under the Bankruptcy Code
is commenced by or against Borrower or any Guarantor, provided however,
that if such a proceeding is commenced against Borrower or any Guarantor on
an involuntary basis, then only if such action is not dismissed within 60
days of first being filed; or
(e) Borrower or any Guarantor becomes insolvent or generally fails to
pay, or admit in writing its or his inability to pay, its or his debts as
they become due; or
(f) Borrower or any Guarantor applies for, consents to, or acquiesces
in, the appointment of a trustee, receiver or other custodian for it or him
or for any of its or his property, or makes a general assignment for the
benefit of creditors; or, in the absence of such application, consent or
acquiescence, a trustee, receiver or other custodian is appointed for
Borrower or for Guarantor or for a substantial part of Borrower's or any
Guarantor's property; or
(g) Any other reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding is commenced in respect of Borrower or any
Guarantor, provided however, that if such a proceeding is commenced against
any Guarantor on an involuntary basis, then only if such
-14-
<PAGE>
action is not dismissed within 60 days of first being filed; or
(h) Borrower or any Guarantor takes any action to authorize, or in
furtherance of, any of the events described in the foregoing clauses (d)
through (g); or
(i) All or a substantial part of the assets of Borrower or any
Guarantor are sold, leased, or otherwise disposed of (whether in one
transaction or in a series of transactions) to one or more Persons;
(j) Any judgments, writs or warrants of attachment, executions or
similar process (not covered by insurance) in the aggregate amount that
exceeds $25,000.00 is issued or levied against Borrower, any Guarantor or
any of its or his assets and is not released, vacated or fully bonded prior
to any sale and in any event within five days after its issue or levy; or
(k) The issuance in excess of $10,000 or levy of any garnishment,
summons, writ of attachment, writ, warrant, attachment, tax lien or tax
levy, execution or other process against any property of Borrower or any
Guarantor; or
(l) The attachment of any tax lien to any property of Borrower or any
Guarantor which is other than for taxes or assessments not yet due and
payable; or
(m) A Material Adverse Occurrence takes place.
Upon the occurrence of any Event of Default described in Paragraphs 20(d), (e),
(f), (g) or (h), all Obligations shall be and become immediately due and payable
without any declaration, notice, presentment, protest, demand or dishonor of any
kind (all of which are hereby waived by Borrower) and Borrower's ability to
obtain any additional credit extensions or Advances under this Agreement shall
be immediately and automatically terminated. Upon the occurrence of any other
Event of Default, Lender may notify Borrower of the termination of Borrower's
ability to obtain any additional credit extensions or Advances under this
Agreement and may declare all or any portion of the Obligations to be due and
payable, without presentment, protest or dishonor of any kind (all of which are
hereby waived), whereupon the full unpaid amount of the obligations which shall
be so declared due and payable shall be and become immediately due and payable.
Upon the occurrence of an Event of Default, Lender shall have all the rights and
remedies of a secured party under the Commercial Code and may require Borrower
to assemble the Collateral and make it available to Lender at a place designated
by Lender, and Lender shall have the right to take immediate possession of the
Collateral and may enter any of the premises of Borrower or wherever the
Collateral is located with or without process of law and to keep and store the
same on said premises until sold (and if said premises be the property of
Borrower, Borrower agrees not to charge Lender or a purchaser from Lender for
storage thereof for a period of at least 90 days). Upon the occurrence of an
Event of Default, Lender, without further demand, at any time or times, may sell
and deliver any or all of the Collateral at public or private sale, for cash,
upon credit or otherwise, at such prices and upon such terms as Lender deems
advisable, at its sole discretion. Any requirement under the Commercial Code or
other applicable law of reasonable notice will be met if such notice is mailed
(by certified mail, return receipt requested) to Borrower at its address set
forth in the opening paragraph of this Agreement at least ten days before the
date of sale. Lender may be the purchaser at any such sale, if it is public.
The proceeds of sale will be applied first to all expenses of retaking, holding,
preparing for sale, selling and the like, including attorneys' fees and legal
expenses (whether or not suit is commenced) including, without limitation,
reasonable attorneys' fees and legal expenses incurred in connection with any
appeal of a lower court's order or judgment, and second to the payment (in
whatever order Lender elects) of all other obligations chargeable to Borrower's
loan account hereunder. Subject to the provisions of the Commercial Code,
Lender will return any excess to Borrower and Borrower shall remain liable to
Lender for any deficiency. Borrower agrees to give Lender immediate notice of
the existence of any Default or Event of Default.
22. Conditions Precedent to Initial Advance. The obligation of Lender to
---------------------------------------
make the initial Advance is subject to the condition precedent that Lender shall
have received on or before the date of the initial Advance copies of all of the
following, unless waived by Lender:
(a) A favorable opinion of counsel to Borrower in form and substance
satisfactory to Lender;
(b) UCC-1 Financing Statements in a form acceptable to Lender
appropriately completed and duly executed by Borrower;
(c) Acceptable recent UCC, tax lien, judgment, and bankruptcy searches
from the filing offices in all states required by Lender;
(d) Security Interest Subordination Agreements relating to all notes
payable under which Borrower is obligated, unless by its terms, the
particular note payable is already subordinated on terms satisfactory to
Lender;
(e) A certified copy of all documents evidencing any necessary consent
or governmental approvals (if any) with respect to the Loan Documents or
any other documents provided for in this Agreement;
(f) A certificate by the Secretary or any Assistant Secretary of
Borrower certifying as to: (i) attached resolutions of Borrower's Board of
Directors authorizing or ratifying the execution, delivery and performance
of the Loan Documents to which Borrower is a party and any other documents
provided for by this Agreement, (ii) the names of the officers of Borrower
authorized to sign the Loan Documents
-15-
<PAGE>
together with a sample of the true signature of such officers, and (iii)
attached bylaws of Borrower;
(g) Certificates of Good Standing for each Borrower issued by its
state of incorporation;
(h) Evidence of insurance for all insurance required by the Loan
Documents;
(i) An officer certificate, in form and substance satisfactory to
Lender, executed by James Ciccarelli, Lionel Brown, and David Welch;
(j) The Note, in form and substance satisfactory to Lender in its sole
and absolute discretion, appropriately completed and duly executed by the
Borrower;
(k) Appropriate collateral account agreements executed by Borrower and
the other parties thereto;
(l) Such other approvals, opinions or documents as Lender may require.
23. Conditions Precedent to All Advances. The obligation of Lender to
------------------------------------
make any Advance (including the initial Advance) shall be subject to the
satisfaction of each of the following conditions, unless waived in writing by
Lender:
(a) The representations and warranties of Borrower set forth in this
Agreement are true and correct on the date of the Advance (and after giving
effect to the Advance then being made);
(b) No Default, no Event of Default and no Material Adverse Occurrence
shall then have occurred and be continuing on the date of the Advance or
result from the making of the Advance; and
(c) No litigation, arbitration or governmental investigation or
proceeding shall be pending or, to the knowledge of Borrower or any
Guarantor, threatened against Borrower or any Guarantor or affecting its
business or operations or its ability to perform its obligations hereunder
which, if adversely determined to Borrower or any Guarantor, would
constitute a Material Adverse Occurrence.
24. Termination. Subject to automatic termination of Borrower's ability
-----------
to obtain additional Advances or credit extensions under this Agreement upon the
occurrence of any Event of Default specified in the paragraph entitled "Default
and Remedies" above and to Lender's right to terminate Borrower's ability to
obtain additional credit extensions and Advances under this Agreement upon the
occurrence of any other Event of Default or upon demand, this Agreement shall
have a term ending on the Termination Date provided, however, that
--------
Borrower may terminate this Agreement at any earlier time upon sixty days prior
written notice; provided further, however, that if Borrower terminates this
-------
Agreement at any time prior to the then current Maturity Date, then Borrower
shall pay to Lender a prepayment charge equal to the product arrived at by
multiplying (i) $7,500.00 if the effective date of termination is on or prior to
January 25, 2001, or (ii) $3,750.00 if the effective date of termination is
after January 25, 2001, times the number of calendar months (whole and
fractional) from the Termination Date to and including the then current Maturity
Date. On the Termination Date, all obligations arising under this Agreement
shall become immediately due and payable without further notice or demand.
Lender's rights with respect to outstanding Obligations owing on or prior to the
Termination Date will not be affected by termination and all of said rights
including (without limitation) Lender's Security Interest in the Collateral
existing on such Termination Date or acquired by Borrower thereafter, and the
requirements of this Agreement that Borrower furnish schedules and confirmatory
assignments of Receivables and Inventory and turn over to Lender all full and
partial payments thereof shall continue to be operative until all such
Obligations have been duly satisfied.
25. Grant of License to Use Patents and Trademarks Collateral upon
--------------------------------------------------------------
Default. For the purpose of enabling Lender to exercise rights and remedies
- -------
under this Agreement after an Event of Default, Borrower hereby grants to Lender
an irrevocable, non-exclusive license (exercisable without payment of royalty or
other compensation to Borrower) to use, license or sublicense any patent or
trademark now owned or hereafter acquired by Borrower and wherever the same may
be located, and including in such license reasonable access to all media in
which any of the licensed items may be recorded or stored and to all computer
and automatic machinery software and programs used for the compilation or
printout thereof.
26. Miscellaneous.
-------------
(a) The performance or observance of any affirmative or negative
covenant or other provision of this Agreement and any supplement hereto may
be waived by Lender in a writing signed by Lender but not otherwise. No
delay on the part of Lender in the exercise of any remedy, power or right
shall operate as a waiver thereof, nor shall any single or partial exercise
of any remedy, power or right preclude other or further exercise thereof or
the exercise of any other remedy, power or right. Each of the rights and
remedies of Lender under this Agreement will be cumulative and not
exclusive of any other right or remedy which Lender may have hereunder or
as allowed by law.
(b) Any notice or request authorized by this Agreement to be given to
Lender or to Borrower shall be deemed to be given when personally
delivered, or three business days after being deposited in the U.S. mail,
certified, return receipt requested, postage prepaid, or one business day
after delivery to and receipt by Federal Express or other overnight
courier, in each case addressed to Borrower or Lender at its address shown
in the opening paragraph of this Agreement as the case may be, or at such
other address
-16-
<PAGE>
as the party may, by written notice received by the other, designate as
such party's address for purposes of notice hereunder; provided, however,
-------- -------
that any notice to Lender which contains a request for an Advance as
discussed above shall not be deemed given until actually received.
(c) This Agreement, including exhibits and schedules and other
agreements referred to herein, is the entire agreement between the parties,
supersedes and rescinds all prior agreements relating to the subject matter
herein, cannot be changed, terminated or amended orally, and shall be
deemed effective as of the date it is accepted by Lender.
(d) Borrower agrees to pay and will reimburse Lender on demand for all
expenses incurred by Lender arising out of or during the duration of, this
transaction including without limitation filing and recording fees and
attorneys' fees and legal expenses, excluding costs of in-house counsel
(whether or not suit is commenced), in the operation of cash management,
delivery/courier or other services including Lender's then current charges
for the operation of a lockbox and wire transfer or advance fees, in the
protection and perfection of Lender's security interest in the Collateral,
in the enforcement of any of the provisions of this Agreement or of
Lender's rights and remedies hereunder and against the Collateral, in the
defense of any claim or claims made or threatened against Lender arising
out of this transaction, or otherwise including, without limitation, in
each instance, all reasonable attorneys' fees and legal expenses incurred
in connection with any appeal of a lower court's order or judgment.
Borrower acknowledges that, at Lender's discretion, certain expenses may be
charged to Borrower at Lender's then current rate for such services to its
customers generally or alternatively, at its actual cost including overhead
charges. Lender may also impose other miscellaneous charges for additional
products or services provided to Borrower based on the cost agreed to by
Borrower from time to time. Lender is authorized to deduct any such
expenses from any amount due Borrower and/or to add such expenses to
Borrower's loan account hereunder.
Borrower hereby indemnifies, exonerates and holds Lender, and its
officers, directors, employees and agents (the "Indemnified Parties") free
and harmless from and against any and all actions, causes of action, suits,
losses, liabilities and damages, and expenses in connection therewith
including, without limitation, reasonable attorneys' fees and disbursements
(the 'Indemnified Liabilities"), incurred by the Indemnified Parties or any
of them as a result of, or arising out of, or relating to:
(i) any transaction financed or to be financed in whole or in
part directly or indirectly with proceeds of any Advance, or
(ii) the execution, delivery, performance or enforcement of
this Agreement or any document executed pursuant hereto by any of the
Indemnified Parties, except for any such Indemnified Liabilities
arising on account of any Indemnified Party's gross negligence or
willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable
for any reason, Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. The provisions of this Paragraph
shall survive termination of this Agreement.
(e) This Agreement is made under and shall be governed by and
interpreted in accordance with the internal laws of the state of Minnesota,
except to the extent that the perfection of the Security Interest
hereunder, or the enforcement of any remedies hereunder with respect to any
particular Collateral, shall be governed by the laws of a jurisdiction
other than the State of Minnesota. Captions herein are for convenience
only and shall not be deemed part of this Agreement.
(f) This Agreement shall be binding upon Borrower and Lender and their
respective successors, assigns, heirs, and personal representatives and
shall inure to the benefit of Borrower, Lender and the successors and
assigns of Lender, except that Borrower may not assign or transfer its
rights hereunder without the prior written consent of Lender, and any
assignment or transfer in violation of this provision shall be null and
void. In connection with the actual or prospective sale by Lender of any
interest or participation in the obligations, Borrower authorizes Lender to
furnish any information in its possession, however acquired, concerning
Borrower or any of its Affiliates to any person or entity, provided that
such person agrees to keep confidential any non-public or other
confidential information.
(g) Borrower hereby irrevocably consents and submits to the personal
jurisdiction of any Minnesota state court or federal court over any action
or proceeding arising out of or relating to the Agreement, and Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding shall be venued (at the sole option of Lender) in either the
District Court of Dakota or Hennepin County, Minnesota, or the United
States District Court, District of Minnesota. Borrower hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.
Borrower irrevocably consents
-17-
<PAGE>
to the service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding by the mailing by
United States certified mail, return receipt requested, of copies of such
process to Borrower's address stated in the preamble hereto. Borrower
agrees that judgment final by appeal, or expiration of time to appeal
without an appeal being taken, in any such action or proceeding shall be
conclusive and may be enforced in any other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Paragraph
shall affect the right of Lender to serve legal process in any other manner
permitted by law or affect the right of Lender to bring any action or
proceeding against Borrower or its property in the courts of any other
jurisdiction. Borrower agrees that, if it brings any action or proceeding
arising out of or relating to this Agreement, it shall bring such action or
proceeding in the District Court of Hennepin County, Minnesota.
(h) The provisions of this Agreement are severable, and in any action
or proceeding involving any State corporate law, or any State or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of the Borrower hereunder would
otherwise be held or determined to be void, invalid, or unenforceable on
account of the grant of a security interest hereunder to secure Borrower's
contingent obligations, then, notwithstanding any other provision of this
Agreement to the contrary, the amount of such liability shall, without any
further action by Borrower, Lender or any other person, be automatically
limited and reduced to the highest amount which is valid and enforceable as
determined in such action or proceeding.
(i) Borrower also irrevocably consents to and authorizes all of its
banks and/or financial institutions to provide SPECTRUM with all written,
verbal and other information in its possession that relates to its entire
relationship with Borrower including but not limited to information
relating to accounts, certificates, balances and activity, loans, leases
and the like, including any detail information relating to the above.
(j) If permitted under applicable law, a photocopy or other
reproduction hereof may be filed as a financing statement.
(continued on next page)
-18-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
LENDER: SPECTRUM COMMERCIAL SERVICES
By______________________________________________
Its__________________________________________
BORROWER: COMMUNICATIONS WORLD INTERNATIONAL, INC.
By______________________________________________
Its__________________________________________
Fed. Tax ID #: 84-0917382
BORROWER: IAC ACQUISITION CORPORATION
By______________________________________________
Its__________________________________________
Fed. Tax ID #: 84-1512570
BORROWER: COMMWORLD ACQUISITION CORPORATION
By______________________________________________
Its__________________________________________
Fed. Tax ID #: 74-2909067
BORROWER: DIGITAL TELECOM INCORPORATED
By______________________________________________
Its__________________________________________
Fed. Tax ID #: 84-1282629
-19-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> APR-30-1999
<PERIOD-START> MAY-01-1999
<PERIOD-END> JAN-31-2000
<CASH> 200
<SECURITIES> 0
<RECEIVABLES> 1,799
<ALLOWANCES> 0
<INVENTORY> 386
<CURRENT-ASSETS> 2,465
<PP&E> 371
<DEPRECIATION> 0
<TOTAL-ASSETS> 7,260
<CURRENT-LIABILITIES> 3,561
<BONDS> 0
0
80
<COMMON> 8,119
<OTHER-SE> (8,013)
<TOTAL-LIABILITY-AND-EQUITY> 7,260
<SALES> 10,739
<TOTAL-REVENUES> 11,039
<CGS> 8,132
<TOTAL-COSTS> 11,549
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 181
<INCOME-PRETAX> (691)
<INCOME-TAX> 0
<INCOME-CONTINUING> (691)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (691)
<EPS-BASIC> (.10)
<EPS-DILUTED> (.10)
</TABLE>
