Exhibit 10.54
REVISED AND RESTATED
SUBORDINATED NOTE
$5,250,000.00 Madison, Wisconsin
April 4, 2003
This Note revises and restates the Subordinated Note dated January 25,
2002, from Integrated Information Systems, Inc., a Delaware corporation ("the
Borrower") to AnchorBank, fsb ("Lender") as modified by a Modification to
Subordinated Note dated October 14, 2002.
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇▇ promises to pay to the order of Lender, or
the holder hereof, the principal sum of Five Million Two Hundred Fifty Thousand
and no/100 Dollars ($5,250,000.00), together with interest on the unpaid
principal balance from the date hereof, until paid, at the rate of seven percent
(7%) per annum, plus a loan fee in the amount of Two Thousand Five Hundred and
no/100 Dollars ($2,500.00) at the time of execution of this Note, which amount
may be paid from the loan proceeds. Interest shall be calculated on the basis of
a 360-day year over the actual number of days elapsed in a period. All payments
by Borrower shall be made in lawful currency of the United States and in
immediately available funds. Prior to any default hereunder, ▇▇▇▇▇▇ agrees to
accept payment by check. Payments hereunder shall be applied first to the
payment of interest, with the balance, if any, to principal. The principal and
interest shall be due and payable at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or such other place as Lender may designate, in writing, as follows:
1. Commencing on the fifteenth (15th) day of April, 2003, and
continuing on the same day of every third month thereafter until
January 15, 2004, Borrower shall make quarterly payments of interest
only (in arrears) on the outstanding principal balance hereunder.
2. Commencing on the fifteenth (15th) day of April, 2004, and
continuing on the same day of every third month thereafter during
the remaining term of this Note, Borrower shall make quarterly
payments of principal and interest in an amount sufficient to fully
amortize the original principal balance hereunder if paid over a
period of ten (10) years.
3. Unless sooner paid, the unpaid principal balance and all accrued
interest thereon shall be paid in full on January 25, 2006.
If any installment or payment due under this Note is not received by
Lender within ten (10) calendar days after the installment or payment is due,
the undersigned shall pay to the holder a late charge of Five Percent (5%) of
such installment or payment, such late charge to be immediately due and payable
without demand by Lender.
If (i) Borrower fails to pay any installment of principal and/or interest
due hereunder as and when due, and such default continues for ten (10) days
after Lender gives written notice thereof to Borrower, or (ii) defaults or
permits a default to occur in the performance of any of the terms contained
herein, or in any renewal, extension, or modification hereof, or in any other
document evidencing, securing, or referring to payment hereunder or in any
document or instrument executed and/or delivered by Borrower in connection
herewith or in connection with any other indebtedness of Borrower to Lender and
such default is not cured within the applicable cure periods, if any, set forth
therein, or (iii) any financial information, representation,
or warranty given by ▇▇▇▇▇▇▇▇ to Lender in writing in connection with the
borrowing evidenced by this Note shall prove untrue in any material respect as
of the time when given; or (iv) failure to advise Lender of any judgments
obtained against Borrower which, together with all outstanding unsatisfied
judgments against Borrower, exceed the sum of Fifty Thousand and no/100 Dollars
($50,000.00); or (v) any judgment shall be obtained against the Borrower which,
together with all outstanding unsatisfied judgments against the Borrower, shall
exceed the sum of Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00)
and shall remain unsatisfied, unvacated, unbonded, or unstayed for a period of
sixty (60) days following the date of entry thereof (excluding the items
disclosed to Lender in Schedule 3.c to the Security Agreement, as defined
below); or (vi) Borrower shall: (1) become insolvent; or (2) be unable, or admit
in writing its inability to pay the majority of its debts as they mature; or (3)
make a general assignment for the benefit of creditors or to an agent authorized
to liquidate any substantial amount of its property; or (4) file a petition in
bankruptcy, or for reorganization, or to effect a similar plan or other
arrangement with substantially all of its creditors; or (5) file an answer to a
creditor's petition (admitting the material allegations thereof) for an
involuntary bankruptcy or reorganization or to effect a similar plan or other
arrangement with substantially all of its creditors; or (6) apply to a court for
the appointment of a receiver for any of its assets; or (7) have a receiver
appointed for any of its assets (without the consent of the Borrower) and such
receiver shall not be discharged within sixty (60) days after his appointment;
then the entire unpaid principal balance, plus accrued interest, shall, at the
option of the holder hereof and without notice, which is hereby expressly
waived, mature and be immediately due and payable. Failure to exercise this
option following any event above shall not constitute a waiver of the right to
exercise the same at a later time or upon the occurrence of any such subsequent
event or events. The occurrence of any default under the terms of this Note
shall constitute a default on any other instrument, agreement, loan, or credit
facility evidencing any indebtedness of Borrower to Lender, including but not
limited to a Line of Credit of even date, and a Business Manager facility dated
October 14, 2002.
During any period in which Borrower is in default hereunder, this Note
shall bear interest at the rate of Five Percent (5%) per annum in excess of the
Note rate in effect immediately prior to the default from the date of such
default until such default is cured, or, if acceleration has occurred, until
this Note has been paid; provided, however, that such rate shall not exceed the
highest rate permitted by law.
During the term of this Note, Borrower may prepay all or any part of the
principal balance hereof without penalty or fee. Prepayments shall be applied
against the outstanding principal balance of this Note and shall not extend or
postpone the due date of any subsequent monthly payment or change the amount of
such monthly payment unless Lender shall agree otherwise in writing. As used
herein, the term prepayment shall include all voluntary payments and all
payments occurring as a result of the acceleration by Lender of the principal
amount of this Note, but shall not include payments occurring because of the
application by Lender of insurance proceeds or condemnation awards to the
indebtedness evidenced hereby.
From time to time, without affecting the obligation of the Borrower or the
successors or assigns of the Borrower to pay the outstanding principal balance
of this Note and observe the covenants of the Borrower contained herein, without
giving notice to or obtaining the consent of the Borrower, the successors or
assigns of the Borrower, and without liability on the part of Lender, Lender
may, at its option, extend the time for payment of said outstanding principal
balance or any part thereof, reduce the payments thereon, release anyone liable
on any of said outstanding principal balance, accept a renewal of this Note,
modify the terms and time of payment of said outstanding principal balance, join
in any extension or subordination
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agreement, release any security given herefor, take or release other or
additional security, and agree in writing with the Borrower, its successors, or
assigns, to modify the rate of interest or period of amortization for this Note.
▇▇▇▇▇▇▇▇, for itself and successors and assigns, agrees hereby to be
bound, and waives and renounces presentment, protest, demand and notice of
presentment, notice of protest, notice of non-payment of the Note, notice of
dishonor and each and every other notice of any kind respecting this Note.
▇▇▇▇▇▇▇▇, for itself and successors and assigns, waives all lack of diligence or
delays in collection or endorsement hereof.
Nothing contained herein nor in any transaction related hereto shall be
construed or shall so operate either presently or prospectively (a) to require
the payment of interest at a rate greater than is now lawful in such case to
contract for, but shall require payment of interest only to the extent of such
lawful rate, or (b) to require the payment or the doing of any act contrary to
law; but if any clause or provision herein contained shall otherwise so operate
to invalidate this Note and/or the transaction related hereto, in whole or in
part, then such clause(s) and provision(s) only shall be held for naught as
though not contained herein and the remainder of this Note shall remain
operative and in full force and effect.
If for any reason interest in excess of the amount as limited in the
foregoing paragraph shall have been paid hereunder, whether by reason of
acceleration or otherwise, then in that event any such excess interest shall
constitute and be treated as a payment of principal hereunder and shall operate
to reduce such principal by the amount of such excess, or if in excess of the
principal indebtedness, such excess shall be refunded.
This Note is secured by a Selective Business Security Agreement dated
January 25, 2002, a General Business Security Agreement dated October 14, 2002,
and a General Business Security Agreement of even date herewith given by
Borrower to Lender (the "Security Agreement"), together with all other
mortgages, security agreements, and assignments previously or hereafter given by
Borrower to Lender. This Note may be accelerated pursuant to the terms of any of
said documents. Borrower warrants and represents that, at present, no creditors
other than Lender hold a security interest in the collateral pledged to Lender
as security for this Note. Lender acknowledges that such collateral was,
however, previously pledged as collateral for obligations to other creditors and
that same collateral remains covered by active financing statements. ▇▇▇▇▇▇▇▇
believes that it is entitled to have such financial statements terminated and
agrees to continue to use commercially reasonable efforts to effect termination
of such financing statements.
In addition to ▇▇▇▇▇▇'s common law right of setoff, Borrower hereby grants
Lender a security interest and lien in any deposit account Borrower may at any
time have with Lender.
All of the covenants herein contained shall bind, and the benefits hereof
shall also inure to, the respective successors and permitted assigns of the
parties hereto. Whenever used, the singular shall include the plural, the plural
the singular, and the use of any gender shall include all genders. The term
"Lender" shall include all subsequent holders of this Note. This Note may be
modified only in a writing executed by the Borrower and ▇▇▇▇▇▇.
Borrower shall cause to be furnished to Lender its financial statement
within forty-five (45) calendar days of each of its first three quarter fiscal
quarter ends (showing current and year-to-date amounts). In addition, within one
hundred (100) days after each of the Borrower's fiscal year ends, Borrower shall
furnish to Lender its audited financial statement for the
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immediately preceding fiscal year, which audited statement shall be in form and
content acceptable to Lender and prepared by a certified accounting firm
selected by ▇▇▇▇▇▇▇▇ and reasonably acceptable to Lender. All quarterly
statements shall be certified by the President or Chief Financial Officer of
Borrower to be true, correct, and complete.
All notices, consents, waivers, and other communications required or
permitted by this Note shall be in writing and shall be deemed given to a party
when: (a) delivered to the appropriate address by hand or by nationally
recognized overnight courier service (costs prepaid); (b) sent by facsimile or
e-mail with confirmation of transmission by the transmitting equipment; or (c)
received or rejected by the addressee, if sent by certified mail, return receipt
requested, to:
Lender: Borrower
------- --------
AnchorBank, fsb Integrated Information Systems, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇/ Attn: Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with courtesy copies to:
Lender's Counsel: Borrower's Counsel:
---------------- ------------------
▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. Integrated Information Systems, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, LLP ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Post Office Box 1767 Attn: General Counsel
Madison, WI 53701-1767
Either Borrower or Lender may change the address to which notices intended
for it are to be directed by means of notice given to the other party in
accordance with this paragraph. Each party agrees that it will not refuse or
reject delivery of any notice given in accordance with this paragraph, that it
will acknowledge, in writing, the receipt of any notice upon request by the
other party, and that any notice rejected or refused by it shall be deemed for
purposes of this paragraph to have been received by the rejecting party on the
date given.
▇▇▇▇▇▇▇▇ agrees that whenever this Note is placed in the hands of an
attorney for collection or to defend or enforce any of ▇▇▇▇▇▇'s rights
hereunder, the undersigned shall pay to Lender its attorneys' fees, together
with all costs and other expenses incurred or paid by ▇▇▇▇▇▇ in connection
therewith, including, without limitation, all pre-judgment and post-judgment
costs and expenses, including attorneys' fees.
This Note and the Loan Documents have all been negotiated in the State of
Wisconsin. Accordingly, it is the intention of the parties that this Note be
governed by the laws of the State of Wisconsin.
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IN WITNESS WHEREOF, the Borrower has caused this Note to be executed in
Madison, Wisconsin, as of the date first above written.
INTEGRATED INFORMATION SYSTEMS, INC.,
a Delaware corporation
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
[CORPORATE SEAL] Attest:
(if none, so state)
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
(Type or Print Name and Title)
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