EXHIBIT 10.12
CREDIT AND SECURITY AGREEMENT
Dated as of September 30, 1996
DIGITAL BIOMETRICS, INC., a Delaware corporation (the "Borrower"), and
NORWEST BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender"), hereby
agree as follows:
ARTICLE I
Definitions
Section 1.1 Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
"Accounts" means the aggregate unpaid obligations of customers
and other account debtors to the Borrower arising out of the sale or
lease of goods or rendition of services by the Borrower on an open
account or deferred payment basis, whether now existing or hereafter
arising.
"Advance" has the meaning given in Section
"Base Rate" means the rate of interest publicly announced from
time to time by Norwest Bank Minnesota, National Association as its
"base rate" or, if such bank ceases to announce a rate so designated,
any similar successor rate designated by the Lender.
"Book Net Worth" means the aggregate of the common
stockholders' equity of the Borrower, determined in accordance with
GAAP.
"Borrowing Base" means, at any time and subject to change from
time to time in the Lender's sole discretion, the lesser of:
(a) the Maximum Line; or
(b) (i) 75% of Eligible Accounts minus (ii) $100,000.
"Collateral" has the meaning given in Section .
"Default Rate" means an annual rate equal to 3% over the
Floating Rate, which rate shall change when and as the Floating Rate
changes.
"Eligible Accounts" means only all unpaid Accounts arising
from the sale of product from Borrower's "TENPRINTER S-Series" product
line, net of any credits, which have been designated by the Borrower as
Eligible Accounts, except the following shall not in any event be
deemed Eligible Accounts:
(1) That portion of Accounts over 120 days past
installation date, as evidenced by a certificate of
installation signed by the account debtor;
(2) That portion of Accounts that are disputed or
subject to a claim of offset or a contra account;
(3) That portion of Accounts not yet earned by the
final delivery of goods or rendition of services, as
applicable, by the Borrower to the customer, as evidenced by a
certificate of installation signed by the account debtor;
(4) Accounts owed by an account debtor located
outside the United States which are not backed by a bank
letter of credit assigned to the Lender, in the possession of
the Lender and acceptable to the Lender in all respects, in
its sole discretion;
(5) Accounts owed by an account debtor that is the
subject of bankruptcy proceedings or has gone out of business;
(6) Accounts owed by a shareholder, subsidiary,
affiliate, officer or employee of the Borrower;
(7) Accounts not subject to a duly perfected security
interest in favor of the Lender or which are subject to any
lien, security interest or claim in favor of any Person other
than the Lender;
(8) That portion of Accounts that have been
restructured, extended, amended or modified;
(9) That portion of Accounts that constitutes finance
charges, service charges or sales or excise taxes;
(10) Accounts owed by an account debtor, regardless
of whether otherwise eligible, if 10% or more of the total
amount due under Accounts from such debtor is ineligible under
clauses (1), (2) or (8) above; and
(11) Accounts, or portions thereof, otherwise deemed
ineligible by the Lender in its sole discretion.
"Event of Default" has the meaning specified in Section .
"Floating Rate" means an annual rate equal to the sum of the
Base Rate plus one and one-half percent (1.5%) which annual rate shall
change when and as the Base Rate changes.
"GAAP" means generally accepted accounting principles, applied
on a basis consistent with the accounting practices applied in the
financial statements described in Section .
"Inventory" means all of the Borrower's inventory, as such
term is defined in the UCC, whether now owned or hereafter acquired.
"Loan Documents" means this Agreement, the Note, the
Disclosure and the Security Documents and any and all other related
instruments, agreements and documents.
"Maximum Line" means $3,500,000.
"Note" means the Borrower's revolving promissory note, payable
to the order of the Lender in form and content satisfactory to Lender.
"Obligations" means each and every debt, liability and
obligation of every type and description which the Borrower may now or
at any time hereafter owe to the Lender, including all indebtedness
arising under this Agreement, the Note or any other loan or credit
agreement or guaranty between the Borrower and the Lender, whether now
in effect or hereafter entered into.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Security Documents" means the Collateral Account Agreement
and the Lockbox Agreement, each of even date herewith and by and among
the Borrower, the Lender and Norwest Bank Minnesota, National
Association and any and all other documents, instruments and agreements
executed by the Borrower or any other party and delivered to the Lender
as amended form time to time, as security for the Obligations.
"Security Interest" has the meaning given in Section .
"Termination Date" has the meaning given in Section 2.4.
"UCC" means the Uniform Commercial Code as in effect from time
to time in the State of Minnesota.
ARTICLE II
Amount and Terms of the Credit Facility
Section 2.1 Revolving Advances. The Lender may, in its sole discretion,
make advances to the Borrower from time to time from the date this Agreement is
signed and delivered to the Termination Date, on the terms and subject to the
conditions herein set forth (each an "Advance"). The Lender shall not consider
any request for an Advance if, after giving effect to such requested Advance,
the sum of the outstanding and unpaid Advances would exceed the Borrowing Base.
The Borrower's obligation to pay the Advances shall be evidenced by the Note.
Within the limits set forth in this Section , the Borrower may request Advances,
prepay, and request additional Advances. The Borrower shall make each request
for an Advance to the Lender before 11:00 a.m. (Minneapolis time) of the day of
the requested Advance. Requests may be made in writing or by telephone.
Section 2.2 Interest; Default Interest.
(a) Revolving Note. Except as set forth in Sections and the
outstanding principal balance of the Advances shall bear interest at the
Floating Rate. All interest shall be payable monthly in arrears on the first day
of the month and on demand.
(b) Minimum Interest Charge. Notwithstanding the interest
payable pursuant to Section , the Borrower shall pay to the Lender interest of
not less than $70,000 per year during the term of this Agreement, and on each
anniversary of this Agreement the Borrower shall pay any deficiency between such
minimum interest charge and the amount of interest otherwise calculated under
Sections and .
(c) Default Interest Rate. From the first day of any month
during which Borrower is not in compliance with its agreements set forth in this
Agreement or the Note, in the Lender's discretion and without waiving any of its
other rights and remedies, the outstanding principal balance of the Advances
shall bear interest at the Default Rate.
Section 2.3 Closing and Extension Fees. The Borrower agrees to pay the
Lender a closing fee of $26,250, to be paid on February 1, 1997. If this
Agreement is extended pursuant to Section 2.4 hereof, Borrower agrees to pay the
Lender an extension fee of one-half percent (.50 %) of the Maximum Line, to be
paid upon the effective date of any such extension.
Section 2.4 Discretionary Nature of Credit Facility; Termination Date,
Extension. THE LENDER MAY AT ANY TIME AND FOR ANY REASON REFUSE TO MAKE AN
ADVANCE AND/OR DEMAND PAYMENT OF THE ADVANCES AND TERMINATE THIS AGREEMENT
WHETHER BORROWER IS OR IS NOT IN COMPLIANCE WITH THIS AGREEMENT. The Lender need
not show that an adverse change has occurred in the Borrower's condition,
financial or otherwise, in order to refuse to make any requested Advance or to
demand payment of the Advances. This Agreement shall remain in effect until the
one year anniversary of the date of this Agreement and such anniversary date is
herein referred to as a "Termination Date". This Agreement may be extended for
additional one year periods only upon written agreement by the Lender and the
Borrower, in which case the one year anniversary of any such extension shall
also be referred to as a "Termination Date".
Section 2.5 Termination by Borrower.
(a) Termination by Borrower. The Borrower may terminate this
Agreement at any time subject to payment and performance of all Obligations, may
obtain any release or termination of the Security Interest to which the
Borrower is otherwise entitled by law by (1) giving at least 30 days' prior
written notice to the Lender of the Borrower's intention to terminate this
Agreement, and (2) paying the Lender a prepayment fee in accordance with Section
2.5(b) if the Borrower terminates this Agreement effective as of any date other
than the Termination Date.
(b) Prepayment Fee. If the Borrower desires to terminate this
Agreement as of a Termination Date but without giving at least 30 days' prior
written notice thereof, or any date other than a Termination Date after giving
at least 30 days' prior written notice to the Lender of the Borrower's intention
to do so, it shall pay to the Lender a prepayment fee of the greater of (i) 1%
of the Maximum Line or (ii) the Minimum Interest Charge pursuant to subsection
2.2(b) above, prorated for the number of days remaining until a Termination
Date; provided that (i) no prepayment penalty shall be due if the Borrower shall
prepay the Obligations solely from cash flow generated from the Borrower's
operations and (ii) no prepayment fee shall be required if the prepayment is
wholly made pursuant to a refinancing with another "Norwest@ affiliated entity.
Section 2.6 Mandatory Prepayment. Without notice or demand, if the
outstanding principal balance of the Advances shall at any time exceed the
Borrowing Base, the Borrower shall immediately prepay the Advances to the extent
necessary to eliminate such excess.
Section 2.7 Advances Without Request. The Borrower hereby authorizes
the Lender, in its discretion, at any time or from time to time without the
Borrower's request, to make Advances to pay accrued interest, fees, uncollected
items that have been applied to the Obligations, and other Obligations due and
payable from time to time.
ARTICLE III
Security Interest
Section 3.1 Grant of Security Interest. The Borrower hereby grants to
the Lender a security interest (the "Security Interest") in the following
collateral (the "Collateral"), as security for the payment and performance of
the Obligations:
INVENTORY: All inventory of Borrower, as such term is defined in the
UCC, whether now owned or hereafter acquired, whether consisting of
whole goods, spare parts or components, supplies or materials, whether
acquired, held or furnished for sale, for lease or under service
contracts or for manufacture or processing, and wherever located; and
ACCOUNTS AND OTHER RIGHTS TO PAYMENT: Each and every right of Borrower
to the payment of money, whether such right to payment now exists or
hereafter arises, whether such right to payment arises out of a sale,
lease or other disposition of goods or other property, out of a
rendering of services, out of a loan, out of the overpayment of taxes
or other liabilities, or otherwise arises under any contract or
agreement, whether such right to payment is created, generated or
earned by Borrower or by some other person who subsequently transfers
such person's interest to Borrower, whether such right to payment is or
is not already earned by performance, and howsoever such right to
payment may be evidenced, together with all other rights and interests
(including all liens and security interests) which Borrower may at any
time have by law or agreement against any account debtor or other
obligor obligated to make any such payment or against any property of
such account debtor or other obligor; all including all of Borrower's
rights to payment in the form of all present and future accounts,
contract rights, loans and obligations receivable, chattel papers,
bonds, notes and other debt instruments, tax refunds and rights to
payment in the nature of general intangibles; and
EQUIPMENT: All of the Borrower's goods and equipment, as such term is
defined in the UCC whether now or hereafter owned, including all
present and future machinery, vehicles, furniture, manufacturing
equipment, shop equipment, office and recordkeeping equipment, parts,
tools, supplies, and including specifically the goods described in any
equipment schedule or list herewith or hereafter furnished to the
Lender by the Borrower;
FINANCIAL ASSETS: All securities, securities entitlements, financial
assets and certificates of deposit of Borrower, and all funds of
Borrower on deposit with and all property in the possession of the
Secured Party or any depository institution, each whether now owned or
hereafter acquired; and
GENERAL INTANGIBLES: All of the Borrower's general intangibles, as such
term is defined in the UCC, whether now owned or hereafter acquired,
including all present and future contract rights, patents, patent
applications, copyrights, trademarks, trade names, trade secrets,
customer or supplier lists and contracts, manuals, operating
instructions, permits, franchises, the right to use the Borrower's
name, and the goodwill of Borrower's business; and
PROCEEDS: Together with all substitutions and replacements for and
products of any of the foregoing property and together with proceeds of
any and all of the foregoing property and, in the case of all tangible
property, together with all accessions and together with (i) all
accessories, attachments, parts, equipment and repairs now or hereafter
attached or affixed to or used in connection with any such tangible
property, and (ii) all warehouse receipts, bills of lading and other
documents of title now or hereafter covering such tangible property.
Section 3.2 Notification of Account Debtors and Other Obligors. The
Lender may at any time (either before or after the occurrence of an Event of
Default) notify any account debtor or other person obligated to pay the amount
due that such right to payment has been assigned or transferred to the Lender
for security and shall be paid directly to the Lender. The Borrower will join in
giving such notice if the Lender so requests. At any time after the Borrower or
the Lender gives such notice to an account debtor or other obligor, the Lender
may, but need not, as the Borrower's agent and attorney-in-fact, notify the
United States Postal Service to change the address for delivery of the
Borrower's mail to any address designated by the Lender, otherwise intercept the
Borrower's mail, and receive, open and dispose of the Borrower's mail, applying
all Collateral as permitted under this Agreement and holding all other mail for
the Borrower's account or forwarding such mail to the Borrower's last known
address.
Section 3.3 Occupancy.
(a) The Borrower hereby irrevocably grants to the Lender the
right to take possession of each premises where Borrower conducts its business
and has any rights of possession (the "Premises") at any time after the
occurrence and during the continuance of an Event of Default.
(b) The Lender may use the Premises only to hold, process,
manufacture, sell, use, store, liquidate, realize upon or otherwise dispose of
goods that are Collateral and for other purposes that the Lender in good faith
considers related.
(c) The Lender's right to hold the Premises shall terminate
upon the earlier of payment in full of all Obligations, or final sale or
disposition of all goods constituting Collateral and delivery of all such goods
to purchasers.
(d) The Lender shall not be obligated to pay or account for
any rent or other compensation for the possession or use of any of the Premises;
provided, however, that if the Lender does pay or account for any rent or other
compensation for the possession or use of any of the Premises, the Borrower
shall reimburse the Lender promptly for the full amount thereof.
Section 3.4 License/Maintenance of Intellectual Property. The Borrower
hereby grants to the Lender a non-exclusive, worldwide and royalty-free license
to use or otherwise exploit all trademarks, franchises, trade names, copyrights
and patents owned by or licensed to the Borrower for the purpose of selling,
leasing or otherwise disposing of any or all Collateral following an Event of
Default. The Borrower shall not sell, transfer, assign (by operation of law or
otherwise), exchange, lease, license, allow to go abandoned or otherwise dispose
of all or any portion of said intellectual property and shall maintain and
protect all of such property in accordance with all applicable state, federal
and foreign laws.
Section 3.5 Filing a Copy. A carbon, photographic, or other
reproduction of this Agreement or of a financing statement signed by Borrower is
sufficient as a financing statement.
ARTICLE IV
Conditions of Lending
In view of the fact that Advances may be made in the sole discretion of
the Lender, this Agreement does not set forth conditions precedent to Advances.
The Lender will advise the Borrower of the Lender's documentation and other
requirements before considering any Advance.
ARTICLE V
Representations and Warranties
The Borrower represents and warrants to the Lender as follows:
Section 5.1 Name; Locations; Tax ID No., Subsidiaries. During its
existence, the Borrower has done business solely under its corporate name as set
forth herein and under such trade names and such other corporate names as
disclosed to Lender in writing before this Agreement is signed and delivered.
The address of Borrower's chief executive office and principal place of business
and its federal tax identification number are set forth below its signature to
this Agreement. All Inventory is located at that location or at one of the other
locations disclosed to Lender in writing before this Agreement is signed and
delivered. The Borrower has no subsidiaries except as disclosed to Lender in
writing before this Agreement is signed and delivered.
Section 5.2 Financial Condition; No Adverse Change. Before this
Agreement was signed and delivered, the Borrower furnished the Lender certain of
its unaudited financial statements certified by the Borrower. Those statements
fairly present the Borrower's financial condition as of the dates indicated
therein and the results of its operations for the periods then ended and were
prepared in accordance with generally accepted accounting principles. Since the
date of the most recent financial statements, there has been no material adverse
change in the business, properties or condition (financial or otherwise) of the
Borrower.
ARTICLE VI
Affirmative Covenants of the Borrower
So long as the Advances or any other obligations shall remain unpaid,
the Borrower will comply with the requirements in this Article, unless the
Lender shall otherwise consent in writing.
Section 6.1 Reporting Requirements. The Borrower will deliver to the
Lender each of the following in form and detail acceptable to the Lender:
(a) as soon as available, and in any event within 90 days
after the end of each fiscal year of the Borrower, the Borrower's
audited financial statements prepared in accordance with GAAP;
(b) as soon as available and in any event within 15 days after
the end of each month, an unaudited/internal balance sheet and
statement of income and retained earnings of the Borrower as at the end
of and for such month and for the year to date period then ended,
prepared in accordance with GAAP, subject to year-end audit
adjustments, together with a compliance certificate in the form
attached to this Agreement or such other form as Lender may require;
(c) within 10 days after the end of each month, agings of the
Borrower's accounts receivable and accounts payable as of the end of
such month;
(d) as soon as available and in any event no later than 15
days following the receipt thereof by the Borrower, a copy of the bank
account statements of the Borrower as of the last day of each month
from each bank with which Borrower maintains a checking account, such
statements to be provided to the Lender directly by each such bank or
by the Borrower with respect to a bank that is unwilling to send them
to the Lender;
(e) weekly, on such day of the week as Lender may determine,
agings of the Borrower's accounts receivable arising from the sale of
Borrower's "TENPRINTER S-Series" product line, together with a schedule
of such accounts receivable that are not Eligible Accounts.
(f) from time to time, with reasonable promptness, any and all
receivables schedules, collection reports, deposit records, equipment
schedules, copies of invoices to account debtors, shipment documents
and delivery receipts for goods sold, and such other material, reports,
records or information as the Lender may request;
(g) within three days of Borrower's payment of or deposit for
taxes, including but not limited to payroll taxes, proof of such
payment in form acceptable to the Lender; and
(h) at least thirty (30) days before the beginning of each of
Borrower's fiscal years, projections of Borrower's monthly balance
sheets and income statements for such fiscal year
Section 6.2 Inspection. Upon the Lender's request, the Borrower will
permit any officer, employee, attorney, agent or accountant for the Lender to
audit, review, make extracts from or copy any and all records of the Borrower
and to inspect the Collateral at all times during ordinary business hours.
Section 6.3 Account Verification. The Borrower will at any time and
from time to time upon request of the Lender send requests for verification of
Accounts or notices of assignment to account debtors and other obligors. The
Borrower authorizes the Lender to verify Accounts directly with account debtors
or other obligors from time to time, including on a daily basis (and the
Borrower understands the Lender intends to do so by telephone and/or in
writing).
Section 6.4 No Other Liens. The Borrower will keep all Collateral free
and clear of all security interests, liens and encumbrances except the Security
Interest, purchase money security interests in equipment, the security interest
of Norwest Bank Minnesota, N.A. in the Borrower's financial assets, and other
security interests approved by the Lender in writing.
Section 6.5 Insurance. The Borrower will at all times keep all tangible
Collateral insured against risks of fire (including so-called extended
coverage), theft, collision (for Collateral consisting of motor vehicles) and
such other risks and in such amounts as the Lender may reasonably request, with
a lender's loss payable clause in favor of Lender to the extent of its interest.
Section 6.6 Lockbox; Collateral Account. The Borrower has provided the
Lender with agreements regarding a lockbox and a collateral account in
connection with the collection of Accounts.
Section 6.7 Minimum Book Net Worth. The Borrower will at all times
maintain during each period described below, a Book Net Worth (on an
unconsolidated, Borrower-only basis), determined as of the end of each month, of
at least the amount set forth opposite such period:
Period Minimum Book Net Worth
------ ----------------------
September, 1996 $10,400,000
October, 1996 through December, 1996 $ 9,050,000
January, 1997 through March, 1997 $ 8,600,000
April, 1997 through August, 1997 $ 8,200,000
September, 1997 $ 8,500,000
Provided, however, that if Borrower's net worth shall increase by reason of the
issuance of capital stock (including the conversion of subordinated debt to
capital stock), the minimum book net worth amounts shown above shall thereafter
be adjusted by the amount of such increase. If the Borrower's Book Net Worth as
reported on the final audited financial statements for September 30, 1996 shall
differ by $50,000 or more from $10, 455,000 as reported by Borrower to Lender,
the Lender shall have the right to amend the Minimum Book Net Worth amounts
shown above.
Section 6.8 No Sale or Transfer of Collateral and Other Assets. The
Borrower will not sell, lease, assign, transfer or otherwise dispose of (i) the
stock of any subsidiary, (ii) all or a substantial part of its assets, or (iii)
any Collateral or any interest therein (whether in one transaction or in a
series of transactions) to anyone other than the sale of Inventory in the
ordinary course of business.
Section 6.9 Place of Business; Name. The Borrower will not change the
location of its chief executive office or principal place of business from that
disclosed pursuant to Section . The Borrower will not permit any tangible
Collateral to be located in any state or area in which, in the event of such
location, a financing statement covering such Collateral would be required to
be, but has not in fact been, filed in order to perfect the Security Interest.
The Borrower will not change its name.
Section 6.10 Management Compensation. The Borrower will not increase
the compensation , including salary, bonuses and all other forms of compensation
(excepting, however, compensation in the form of the Borrower's capital stock or
stock options), of its Senior Management Employees, individually or in the
aggregate, by more than 10% in any of Borrower's fiscal years. For the purposes
of this Section 6.10, "Senior Management Employees" shall mean ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. Skritp, and any
person who replaces such employee.
ARTICLE VII
Events of Default, Rights and Remedies
Section 7.1 Events of Default. An "Event of Default" as used herein
shall mean any of the following:
(a) Failure to pay the Note when demanded, and in this
connection Borrower hereby waives presentment, notice of dishonor and
protest;
(b) A petition shall be filed by or against the Borrower under
the United States Bankruptcy Code naming the Borrower as debtor;
(c) Default in the performance, or breach, of any covenant or
agreement of the Borrower contained in this Agreement or any other Loan
Document.
Section 7.2 Rights and Remedies. As provided in Section 2.5, the Lender
may, at any time and for any reason, refuse to make any requested Advance or
demand payment of the Advances. Upon such demand or upon the occurrence of an
Event of Default or at any time thereafter, the Lender may exercise any or all
of the following rights and remedies:
(a) The Lender may exercise and enforce any and all rights and
remedies available upon default to a secured party under the UCC,
including the right to take possession of Collateral, or any evidence
thereof, proceeding without judicial process or by judicial process
(without a prior hearing or notice thereof, which the Borrower hereby
expressly waives) and the right to sell, lease or otherwise dispose of
any or all of the Collateral, and in connection therewith, the Borrower
will on demand assemble the Collateral and make it available to the
Lender at a place to be designated by the Lender which is reasonably
convenient to both parties;
(b) the Lender may exercise any other rights and remedies
available to it by law or agreement.
The remedies provided hereunder are cumulative.
Section 7.3 Certain Notices. If notice to the Borrower of any intended
disposition of Collateral or any other intended action is required by law in a
particular instance, such notice shall be deemed commercially reasonable if
given (in the manner specified in Section ) at least 10 calendar days before the
date of intended disposition or other action.
ARTICLE VIII
Miscellaneous
Section 8.1 Addresses for Notices, Etc. Except as otherwise expressly
provided herein, all notices, requests, demands and other communications
provided for hereunder shall be in writing and shall be (a) personally
delivered, (b) sent by first class United States mail, (c) sent by overnight
courier of national reputation, or (d) transmitted by telecopy, in each case
addressed or telecopied to the party to whom notice is being given at its
address or telecopy number as set forth below its signature to this Agreement.
Section 8.2 Costs and Expenses. The Borrower agrees to pay on demand
all costs and expenses (including legal fees) incurred by the Lender in
connection with the Loan Documents, and any other document or agreement related
thereto, and the transactions contemplated hereby, including wire transfer and
ACH charges, the cost of credit reports, overadvance fees, the expense of any
on-site auditors (not to exceed the then current standard applicable rate, which
on the date of this Agreement is $400 per day per auditor plus out of pocket
expenses), and fees and expenses in enforcing this Agreement.
Section 8.3 Indemnity. In addition to the payment of expenses pursuant
to Section , the Borrower agrees to indemnify, defend and hold harmless the
Lender, and any of its participants, parent corporations, subsidiary
corporations, affiliated corporations, successor corporations, and all present
and future officers, directors, employees, attorneys and agents of the foregoing
(the "Indemnitees") from and against any of the following (collectively,
"Indemnified Liabilities"):
(1) any and all transfer taxes, documentary taxes, assessments
or charges made by any governmental authority by reason of the
execution and delivery of this Agreement and the other Loan Documents
or the making of the Advances;
(2) any and all liabilities, losses, damages, penalties,
judgments, suits, claims, costs and expenses of any kind or nature
whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel) in connection with any investigative,
administrative or judicial proceedings, whether or not such Indemnitee
shall be designated a party thereto, which may be imposed on, incurred
by or asserted against any such Indemnitee, in any manner related to or
arising out of or in connection with the making of the Advances, this
Agreement and the other Loan Documents or the use or intended use of
the proceeds of the Advances; and
(3) any claim, loss or damage to which any Indemnitee may be
subjected as a result of any violation of any federal, state, local or
other governmental statute, regulation, law, or ordinance dealing with
the protection of human health and the environment.
If any investigative, judicial or administrative proceeding arising from any of
the foregoing is brought against any Indemnitee, the Borrower, or counsel
designated by the Borrower and satisfactory to the Indemnitee, will resist and
defend such action, suit or proceeding to the extent and in the manner directed
by the Indemnitee. Each Indemnitee will use its best efforts to cooperate in the
defense of any such action, suit or proceeding. If the foregoing undertaking to
indemnify, defend and hold harmless may be held to be unenforceable because it
violates any law or public policy, the Borrower shall nevertheless make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The Borrower's obligation
under this Section shall survive the termination of this Agreement and the
discharge of the Borrower's other obligations hereunder.
Section 8.4 Binding Effect; Assignment; Sharing of Information. The
Loan Documents shall be binding upon and inure to the benefit of the Borrower
and the Lender and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights thereunder or any
interest therein without the prior written consent of the Lender. Without
limitation of the Lender's right to share information regarding the Borrower and
its Affiliates with Lender's participants, accountants, lawyers and other
advisors, the Lender may share at any time with Norwest Corporation, and all
direct and indirect subsidiaries of Norwest Corporation, any and all information
the Lender may have in its possession regarding the Borrower and its Affiliates,
and the Borrower waives any right of confidentiality it may have with respect to
such sharing of information.
Section 8.5 Governing Law; Jurisdiction, Venue; Waiver of Jury Trial.
This Agreement and the Note shall be governed by and construed in accordance
with the laws (other than conflict laws) of the State of Minnesota. Each party
consents to the personal jurisdiction of the state and federal courts located in
the State of Minnesota in connection with any controversy related to this
Agreement, waives any argument that venue in any such forum is not convenient
and agrees that any litigation initiated by any of them in connection with this
Agreement shall be venued in either the District Court of Hennepin County,
Minnesota located in Minneapolis, Minnesota, or the United States District
Court, District of Minnesota, Fourth Division. THE PARTIES WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR PERTAINING TO THIS
AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first above written.
NORWEST BUSINESS CREDIT, INC. DIGITAL BIOMETRICS, INC.
By
By --------------------------------
----------------------------- ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Its President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Its President
Its Assistant Vice President
Address: Address:
Norwest Center ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
Federal Tax ID No. ▇▇-▇▇▇▇▇▇▇ Federal Tax I.D. No. ▇▇-▇▇▇▇▇▇▇
[Signature Page to Credit and Security Agreement]
COMPLIANCE CERTIFICATE
To: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Norwest Business Credit, Inc.
Date: __________________, 199___
Subject: Digital Biometrics, Inc.
Financial Statements
In accordance with our Credit and Security Agreement dated as
of September 30, 1996 (the "Credit Agreement"), attached are the financial
statements of Digital Biometrics, Inc. (the "Borrower") as of and for
________________, 19___ (the "Reporting Date") and the year-to-date period then
ended (the "Current Financials"). All terms used in this certificate have the
meanings given in the Credit Agreement.
I certify that the Current Financials have been prepared in
accordance with GAAP, subject to year-end audit adjustments, and fairly present
the Borrower's financial condition as of the date thereof.
Events of Default. (Check one):
|_| The undersigned does not have knowledge of the occurrence of a
Default or Event of Default under the Credit Agreement.
|_| The undersigned has knowledge of the occurrence of a Default
or Event of Default under the Credit Agreement and attached
hereto is a statement of the facts with respect to thereto.
Representation and Warranties. (Check one):
|_| The undersigned hereby reaffirms the representations and
warranties as set forth in the Credit Agreement, each of which
are true and correct as of the date hereof.
|_| The undersigned hereby reaffirms the representations and
warranties set forth in the Credit Agreement, each of which
are true and correct as of the date hereof except as described
in the statement attached hereto.
Financial Covenants. I further hereby certify as follows:
1. Minimum Book Net Worth. Pursuant to Section of the Credit
Agreement, as of the Reporting Date, the Borrower's Book Net Worth was
$____________, which |_| satisfies |_| does not satisfy the requirement
that such amount be not less than $_____________ on the Reporting Date
as set forth in table below:
Period Minimum Book Net Worth
------ ----------------------
September, 1996 $10,400,000
October, 1996 through December, 1996 $ 9,050,000
January, 1997 through March, 1997 $ 8,600,000
April, 1997 through August, 1997 $ 8,200,000
September, 1997 $ 8,500,000
Attached hereto are all relevant facts in reasonable detail to
evidence, and the computations of the financial covenants referred to above.
These computations were made in accordance with GAAP.
DIGITAL BIOMETRICS, INC.
By
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
Its Vice President of Finance and Administration