LOAN AGREEMENT
Between
ZIONS FIRST NATIONAL BANK
Lender
and
INCONTACT, INC.
Borrower
Effective Date: July 16, 2009
TABLE OF CONTENTS
Page
1. Definitions................................................................................................................................1
1.1 Definitions.................................................................................................................1
2.
Loan
Description.....................................................................................................................6
2.1
Amount of
Loan........................................................................................................6
2.2
Nature and Duration
of
Loan....................................................................................6
2.3
Promissory
Note........................................................................................................6
2.4
Notice and Manner
of
Borrowing.............................................................................6
2.5
Limitations on
Advances...........................................................................................6
2.6
Loan
Fee....................................................................................................................7
2.7
Payment of Prior
Loan..............................................................................................7
3.
Security for
Loan.....................................................................................................................7
3.1
Collateral...................................................................................................................7
3.2
Release of Lender
as Condition to Lien
Termination...............................................7
4.
Conditions to Loan
Disbursements.........................................................................................8
4.1
Conditions to Loan
Disbursements...........................................................................8
4.2
No Default, Adverse
Change, False or Misleading
Statement.................................8
5.
Representations and
Warranties..............................................................................................8
5.1
Organization and
Qualification.................................................................................8
5.2
Authorization............................................................................................................9
5.3
No Governmental
Approval
Necessary....................................................................9
5.4
Accuracy of
Financial
Statements............................................................................9
5.5
No Pending or
Threatened
Litigation.....................................................................10
5.6
Full and Accurate
Disclosure..................................................................................10
5.7
Compliance with
ERISA........................................................................................10
5.8
Compliance with USA
Patriot
Act.........................................................................11
5.9
Compliance with All
Other Applicable
Law..........................................................11
5.10
Environmental
Representations and
Warranties....................................................11
5.11
Operation of
Business............................................................................................11
5.12
Payment of
Taxes...................................................................................................12
6.
Borrower’s
Covenants............................................................................................................12
6.1
Use of
Proceeds.......................................................................................................12
i
TABLE OF CONTENTS
Page
6.2
Continued
Compliance with
ERISA........................................................................12
6.3
Compliance with USA
Patriot
Act...........................................................................12
6.4
Continued
Compliance with Applicable
Law..........................................................13
6.5
Prior Consent for
Amendment or
Change................................................................13
6.6
Payment of Taxes
and
Obligations...........................................................................13
6.7
Financial
Statements and
Reports.............................................................................13
6.8
Insurance...................................................................................................................14
6.9
Inspection..................................................................................................................14
6.10
Operation of
Business...............................................................................................14
6.11
Maintenance of Records
and
Properties..................................................................14
6.12
Notice of
Claims......................................................................................................14
6.13
Environmental
Covenants......................................................................................14
6.14
Financial
Covenants................................................................................................15
6.15
Negative
Pledge.......................................................................................................16
6.16
Restriction on
Debt..................................................................................................16
6.17
Mergers, Consolidations,
and Purchase and Sale of
Assets....................................17
6.18
Dividends and
Loans...............................................................................................17
6.19
Accounts
Receivable...............................................................................................17
7.
Default....................................................................................................................................18
7.1
Events of
Default.....................................................................................................18
7.2
Cure
Periods.............................................................................................................18
7.3
No Waiver of Event
of
Default................................................................................19
8.
Remedies.................................................................................................................................19
8.1
Remedies upon Event
of
Default.............................................................................19
8.2
Rights and Remedies
Cumulative............................................................................19
8.3
No Waiver of
Rights................................................................................................20
9.
General
Provisions..................................................................................................................20
9.1
Governing
Agreement.............................................................................................20
9.2
Borrower’s
Obligations
Cumulative........................................................................20
9.3
Payment of Expenses
and Attorney’s
Fees..............................................................20
9.4
Right to Perform
for
Borrower.................................................................................20
ii
TABLE OF CONTENTS
Page
9.5
Assignability............................................................................................................21
9.6
Third Party
Beneficiaries.........................................................................................21
9.7
Governing
Law........................................................................................................21
9.8
Severability of
Invalid
Provisions............................................................................21
9.9
Interpretation of
Loan
Agreement...........................................................................21
9.10
Survival and Binding Effect of
Representations, Warranties, and Covenants........21
9.11
Indemnification.......................................................................................................22
9.12
Environmental
Indemnification...............................................................................22
9.13
Interest on Expenses and
Indemnification, Collateral, Order of
Application..........22
9.14
Limitation of
Consequential
Damages....................................................................23
9.15
Waiver and Release of
Claims.................................................................................23
9.16
Revival
Clause..........................................................................................................23
9.17
Jury Trial Waiver, Arbitration,
and Class Action
Waiver........................................23
9.18
Consent to Utah Jurisdiction
and Exclusive Jurisdiction of Utah
Courts.................25
9.19
Notices......................................................................................................................26
9.20
Duplicate Originals;
Counterpart
Execution............................................................26
9.21
Disclosure of Financial and
Other
Information........................................................27
9.22
Integrated Agreement and
Subsequent
Amendment................................................27
EXHIBITS
Exhibit A – Promissory
Note
SCHEDULES
5.5 Litigation
6.16 Existing Debt
iii
LOAN AGREEMENT
This Loan Agreement is made and
entered into by and between Zions First National Bank and
inContact, Inc.
For good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1.
Definitions
1.1
Definitions
Terms defined in the singular shall
have the same meaning when used in the plural and vice versa. As
used herein, the term:
“Accounting Standards”
means (i) in the case of financial statements and reports,
conformity with generally accepted accounting principles and fully
and fairly representing the financial condition as of the date
thereof and the results of operations for the period or periods
covered thereby, consistent with other financial statements of that
company previously delivered to Lender, and (ii) in the case of
calculations, definitions, and covenants, generally accepted
accounting principles consistent with those used in the preparation
of financial statements of Borrower previously delivered to
Lender.
“Adjusted EBITDA” means
EBITDA minus capitalized R&D Costs.
“Banking Business Day”
means any day not a Saturday, Sunday, legal holiday in the State of
Utah, or day on which national banks in the State of Utah are
authorized to close.
“Borrower” means
inContact, Inc., a corporation organized and existing under the
laws of the State of Delaware, its successors, and, if permitted,
assigns.
“Cash” means cash, and
cash equivalents acceptable to Lender, calculated on an average
balance over the prior thirty (30) days.
“Collateral” shall have
the meaning set forth in Section 3.1 Collateral.
“EBITDA” means earnings
(excluding extraordinary gains and losses realized other than in
the ordinary course of business and excluding the sale or writedown
of intangible or capital assets) before Interest Expense, Income
Tax Expense, depreciation, amortization, and other non-cash
charges, determined in accordance with Accounting
Standards.
“Effective Date” shall
mean the date the parties intend this Loan Agreement to become
binding and enforceable, which is the date stated at the conclusion
of this Loan Agreement.
“Environmental
Condition” shall mean any condition involving or relating to
Hazardous Materials and/or the environment affecting the Real
Property, whether or not yet discovered, which could or does result
in any damage, loss, cost, expense, claim, demand, order, or
liability to or against Borrower or Lender by any third party
(including, without limitation, any government entity), including,
without limitation, any condition resulting from the operation
of
Borrower’s business and/or
operations in the vicinity of the Real Property and/or any activity
or operation formerly conducted by any person or entity on or off
the Real Property.
“Environmental Health and
Safety Law” shall mean any legal requirement that requires or
relates to:
a.
advising
appropriate authorities, employees, or the public of intended or
actual releases of Hazardous Materials, violations of discharge
limits or other prohibitions, and of the commencement of
activities, such as resource extraction or construction, that do or
could have significant impact on the environment;
b.
preventing or
reducing to acceptable levels the release of Hazardous
Materials;
c.
reducing the
quantities, preventing the release, or minimizing the hazardous
characteristics of wastes that are generated;
d.
assuring that
products are designed, formulated, packaged, and used so that they
do not present unreasonable risks to human health or the
environment when used or disposed of;
e.
protecting
resources, species, or ecological amenities;
f.
use, storage,
transportation, sale, or transfer of Hazardous Materials or other
potentially harmful substances;
g. cleaning
up Hazardous Materials that have been released, preventing the
threat of release, and/or paying the costs of such clean up or
prevention; or
h.
making responsible
parties pay for damages done to the health of others or the
environment or permitting self-appointed representatives of the
public interest to recover for injuries done to public
assets.
“Equipment Line” means
that certain $1,000,000.00 equipment finance or lease facility
between Borrower and Zions Credit Corporation.
“Event of Default” shall
have the meaning set forth in Section 7.1 Events of Default
.
“Hazardous Materials”
means (i) “hazardous waste” as defined by the Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. Section 6901 et. seq.), including
any future amendments thereto, and regulations promulgated
thereunder, and as the term may be defined by any contemporary
state counterpart to such act; (ii) “hazardous
substance” as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section
9601 et. seq.), including any future amendments thereto, and
regulations promulgated thereunder, and as the term may be defined
by any contemporary state counterpart of such act; (iii) asbestos;
(iv) polychlorinated biphenyls; (v) underground or above ground
storage tanks, whether empty or filled or partially filled with any
substance; (vi) any substance the presence of which is or becomes
prohibited by any federal, state, or local law, ordinance, rule, or
regulation; and (vii) any substance which under any
2
federal, state, or local law,
ordinance, rule or regulation requires special handling or
notification in its collection, storage, treatment, transportation,
use or disposal.
“Income Tax Expense”
means expenditures for federal and state income taxes determined in
accordance with Accounting Standards.
“Interest Expense” means
expenditures for interest determined in accordance with Accounting
Standards.
“Lender” means Zions
First National Bank, its successors, and assigns.
“Loan” means the loan to
be made pursuant to Section 2 Loan Description .
“Loan Agreement” means
this agreement, together with any exhibits, amendments, addendums,
and modifications.
“Loan Documents” means
the Loan Agreement, Promissory Note, Security Documents, all other
agreements and documents contemplated by any of the aforesaid
documents, and all amendments, modifications, addendums, and
replacements, whether presently existing or created in the
future.
“Material Adverse
Effect” means a material adverse effect on Borrower’s
financial condition, conduct of its business, or ability to perform
its obligations under the Loan Documents.
“Maximum Available Advance
Amount” shall have the meaning set forth in Section 2.5
Limitations on Advances .
“Organizational
Documents” means, in the case of a corporation, its Articles
of Incorporation and By-Laws; in the case of a general partnership,
its Articles of Partnership; in the case of a limited partnership,
its Articles of Limited Partnership; in the case of a limited
liability company, its Articles of Organization and Operating
Agreement or Regulations, if any; in the case of a limited
liability partnership, its Articles of Limited Liability
Partnership; and all amendments, modifications, and changes to any
of the foregoing which are currently in effect.
“Promissory Note” means
the promissory note to be executed by Borrower pursuant to Section
2.3 Promissory Note in the form of Exhibit A hereto, which
is incorporated herein by reference, and any and all renewals,
extensions, modifications, and replacements thereof.
“Qualified Account”
means an account receivable of Borrower which meets the following
specifications at the time it is created and at all times
thereafter until collected in full:
a.
The account meets
all applicable representations and warranties concerning the
Collateral set forth in the Loan Documents.
b.
For purposes of
this definition of Qualified Accounts only, an account shall be
deemed to be created upon performance of the services by Borrower
regardless of whether an invoice or bill has been issued, provided
that an invoice is sent within thirty-one (31) days of the date
services were performed.
3
c.
The account is due
and payable not more than thirty (30) days from the date of the
invoice evidencing the account and is not more than sixty (60) days
past due, plus accounts due and payable not more than sixty (60)
days from the date of the invoice evidencing the account and which
are not more than sixty (60) days past due, owing by account
debtors which have been approved in writing by Lender, not to
exceed an aggregate outstanding amount of two million dollars
($2,000,000.00).
d.
The account is a
bona fide obligation of the account debtor for the amount
identified on the records of Borrower and there have been no
payments, deductions, credits, payment terms, or other
modifications or reductions in the amount owing on such account
except (i) discounts allowed in the ordinary course of business
which have been disclosed in the Borrowing Base Certificate; and
(ii) as otherwise shown on the records of Borrower and disclosed to
Lender prior to Lender making any advance based upon the
account.
e.
There are no
defenses or setoffs to payment of the account which can be asserted
by way of defense or counterclaim against Borrower or Lender and
Borrower has no reason to believe the account will not be timely
paid in full by the account debtor.
f.
Performance of all
services giving rise to the account has been completed and all
goods giving rise to the account have been delivered. Borrower has
possession of or has submitted to Lender shipping or delivery
receipts for all such goods.
g.
All services
performed and goods sold which give rise to the account have been
rendered or sold in compliance with all applicable laws,
ordinances, rules and regulations and were performed or sold in the
ordinary course of Borrower’s business.
h.
There have been no
extensions, modifications, or other agreements relating to payment
of the account except as otherwise shown on the records of Borrower
and disclosed to Lender prior to Lender making any advance based
upon the account.
i.
The account debtor
is located or authorized to do business within the United States
and/or Canada and maintains an office and transacts business in the
United States of America and/or Canada or the account is backed by
a letter of credit or credit insurance in a form and issued by a
bank or insurer, as the case may be, acceptable to
Lender.
j.
No proceeding has
been commenced or petition filed under any bankruptcy or insolvency
law by or against the account debtor; no receiver, trustee or
custodian has been appointed for any part of the property of the
account debtor; and no property of the account debtor has been
assigned for the benefit of creditors.
k.
If twenty percent
(20%) or more of the accounts owing to Borrower by any particular
account debtor do not meet the specifications of Paragraph b,
above, all accounts owing by such account debtor shall not be
Qualified Accounts.
l.
The account is not
owing by an account debtor for whom the terms of sale by Borrower
are cash on delivery (“COD”) or considered a cash
sale.
4
m.
The Borrower does
not owe an account payable to the account debtor which could be set
off against the account receivable.
n.
If the total of all
outstanding accounts owing by any single account debtor equals ten
percent (10%) or more of the total outstanding current accounts
owing to Borrower, the amount of accounts owing by that account
debtor which equal or exceed this ten percent requirement shall not
be Qualified Accounts unless Lender has received satisfactory
credit information concerning the account debtor and Lender has
agreed in writing to accept the amount in excess of this ten
percent requirement as Qualified Accounts.
o.
The account is not
subject to any type of retainage.
p.
The account does
not arise from goods placed on consignment, guaranteed sale, or
other terms by reason of which the payment by the account debtor
may be conditional.
q.
The account is not
owing by an employee, officer or director of Borrower in amount
greater than five hundred dollars ($500.00) per person.
r.
The account is not
owing by a parent, subsidiary, sister company, or other company
related to or an affiliate of Borrower.
s.
The account is not
owing by the United States government or any agency, department, or
division thereof.
t.
The account has not
been deemed by Lender to be unacceptable.
u.
The account is not
owing by an account debtor deemed by Lender to be
unacceptable.
“Real Property” means
any and all real property or improvements thereon owned or leased
by Borrower or in which Borrower has any other interest of any
nature whatsoever.
“R&D Costs” means
capitalized costs related to the Borrower’s software
development according to generally acceptable accounting
principles.
“Security Agreement”
means the Security Agreement (All Assets) dated the Effective Date
between Borrower and Lender, and any and all amendments,
modifications, and replacements thereof.
“Security Documents”
means all security agreements, assignments, pledges, financing
statements, deeds of trust, mortgages, and other documents which
create or evidence any security interest, assignment, lien or other
encumbrance in favor of Lender to secure any or all of the
obligations created or contemplated by any of the Loan Documents,
and all amendments, modifications, addendums, and replacements,
whether presently existing or created in the future.
“Working Capital” means
all total current assets less total current liabilities. Current
liabilities include, without limitation, (i) all obligations
payable on demand or within one year
5
after the date on which the
determination is made, and (ii) final maturities and sinking fund
payments required to be made within one year after the date on
which the determination is made, but excluding all such liabilities
or obligations which are renewable or extendable at the option of
Borrower to a date more than one year from the date of
determination.
2.
Loan
Description
2.1
Amount of
Loan
Upon fulfillment of all conditions
precedent set forth in this Loan Agreement, and so long as no Event
of Default exists, and no other breach has occurred under the Loan
Documents, Lender agrees to loan Borrower eight million five
hundred thousand dollars ($8,500,000.00).
2.2
Nature and
Duration of Loan
The Loan shall be a revolving loan
payable in full upon the date and upon the terms and conditions
provided in the Promissory Note. Lender and Borrower intend the
Loan to be in the nature of a line of credit under which Borrower
may repeatedly draw funds on a revolving basis in accordance with
the terms and conditions of this Loan Agreement and the Promissory
Note. The right of Borrower to draw funds and the obligation of
Lender to advance funds shall not accrue until all of the
conditions set forth in Section 4 Conditions to Loan Disbursements
have been fully satisfied, and shall terminate: (i) upon occurrence
of an Event of Default or (ii) upon maturity of the Promissory
Note, unless the Promissory Note is renewed or extended by Lender
in which case such termination shall occur upon the maturity of the
final renewal or extension of the Promissory Note. Upon such
termination, any and all amounts owing to Lender pursuant to the
Promissory Note and this Loan Agreement shall thereupon be due and
payable in full.
2.3
Promissory
Note
The Loan shall be evidenced by the
Promissory Note. The Promissory Note shall be executed and
delivered to Lender upon execution and delivery of this Loan
Agreement. Proceeds of the Promissory Note may be disbursed by
Lender by wire transfer.
2.4
Notice and
Manner of Borrowing
Requests for advances on the
Promissory Note shall be given in writing or orally no later than
12:00 p.m. Mountain Time of the Banking Business Day on which the
advance is to be made.
2.5
Limitations on
Advances
Notwithstanding anything to the
contrary in the Loan Documents, no advances shall be made on the
Loan under the Promissory Note if, after making the requested
advance, the total principal amount of all advances outstanding
will exceed the aggregate of (i) eighty-five percent (85%) of the
Qualified Accounts that have been billed to customers and (ii)
sixty-five percent (65%) of the Qualified Accounts that have not
yet been billed to customers, so long as Borrower has the following
Cash on hand during the following periods:
6
|
|
|
|
|
|
Time Period
|
Amount
|
|
|
|
Close through December 30,
2009
|
$2,750,000.00
|
|
|
|
December 31, 2009 through June 29,
2010
|
$3,000,000.00
|
|
|
|
June 30, 2010 and
Thereafter
|
$3,500,000.00
|
|
(“Maximum Available Advance
Amount”). If Borrower’s Cash falls below the
above-stated amounts, the advance rate on Qualified Accounts that
have been billed to customers shall be reduced to seventy-five
percent (75%) of the billed Qualified Accounts.
Borrower will at all times maintain
Qualified Accounts so that the total, aggregate, principal amount
of all advances at any time outstanding and unpaid shall be in
compliance with this formula. If at any time the total, aggregate,
principal amount of all such advances outstanding and unpaid
exceeds the amount allowable under this formula, Borrower shall
immediately make payment to Lender in a sufficient amount to bring
the amount of such advances back into compliance.
2.6
Loan
Fee
Upon execution and delivery of this
Loan Agreement and each year within thirty (30) days of the
anniversary of the Loan, Borrower shall pay to Lender a loan fee of
twenty-one thousand two hundred fifty dollars ($21,250). No portion
of such fee shall be refunded in the event of early termination of
this Loan Agreement or any termination or reduction of the right of
Borrower to request advances under this Loan Agreement.
2.7
Payment of
Prior Loan
A portion of the proceeds of this
Loan will be used to repay that certain Revolving Credit and Term
Loan Agreement dated May 5, 2006 executed by Borrower in favor of
ComVest Capital, LLC (“ComVest”) (“ComVest
Loan”). Lender is authorized and directed to disburse a
sufficient amount of the funds pursuant to the Promissory Note to
pay all obligations owing under the ComVest Loan.
3.
Security for
Loan
3.1
Collateral
The Loan, Promissory Note, and all
obligations of Borrower under the Loan Documents shall be secured
by such collateral as is provided in the Security Documents (the
“Collateral”), which shall include, without limitation,
a security interest in all assets of Borrower, as more particularly
described in the Security Documents.
3.2
Release of
Lender as Condition to Lien Termination
In recognition of Lender’s
right to have all its attorneys fees and expenses incurred in
connection with this Loan Agreement secured by the Collateral,
notwithstanding payment in full of the Loan and all other
obligations secured by the Collateral, Lender shall not be required
to
7
release, reconvey, or terminate any
Security Document unless and until Borrower has executed and
delivered to Lender general releases in form and substance
satisfactory to Lender.
4.
Conditions to
Loan Disbursements
4.1
Conditions to
Loan Disbursements
Lender’s obligation to
disburse any of the Loan is expressly subject to, and shall not
arise until all of the conditions set forth below have been
satisfied. All of the documents referred to below must be in a form
and substance acceptable to Lender.
a.
All of the Loan
Documents and all other documents contemplated to be delivered to
Lender prior to funding have been fully executed and delivered to
Lender.
b.
All of the
documents contemplated by the Loan Documents which require filing
or recording have been properly filed and recorded so that all of
the liens and security interests granted to Lender in connection
with the Loan will be properly created and perfected, and Lender
shall have a first priority security interest on all assets of
Borrower. Without limiting the foregoing, the UCC financing
statement securing the ComVest Loan shall be released.
c.
All other
conditions precedent provided in or contemplated by the Loan
Documents or any other agreement or document have been
performed.
d.
As of the date of
disbursement of all or any portion of the Loan, the following shall
be true and correct: (i) all representations and warranties made by
Borrower in the Loan Documents are true and correct in all material
respects as of the date of such disbursement; and (ii) no Event of
Default has occurred and no conditions exist and no event has
occurred, which, with the passage of time or the giving of notice,
or both, would constitute an Event of Default.
All conditions precedent set forth
in this Loan Agreement and any of the Loan Documents are for the
sole benefit of Lender and may be waived unilaterally by
Lender.
4.2
No Default,
Adverse Change, False or Misleading Statement
Lender’s obligation to advance
any funds at any time pursuant to this Loan Agreement and the
Promissory Note shall, at Lender’s sole discretion, terminate
upon the occurrence of any Event of Default, any event which could
have a Material Adverse Effect, or upon the determination by Lender
that any of Borrower’s representations made in any of the
Loan Documents were false or materially misleading when made. Upon
the exercise of such discretion, Lender shall be relieved of all
further obligations under the Loan Documents.
5.
Representations
and Warranties
5.1
Organization
and Qualification
Borrower represents and warrants
that it is a corporation duly organized and existing in good
standing under the laws of the State of Delaware, and that Borrower
is qualified and in good standing as a foreign corporation in the
State of Utah.
8
Borrower represents and warrants
that it is duly qualified to do business in each jurisdiction where
the conduct of its business requires qualification.
Borrower represents and warrants
that it has the full power and authority to own its property and to
conduct the business in which it engages and to enter into and
perform its obligations under the Loan Documents.
Borrower represents and warrants
that it has delivered to Lender or Lender’s counsel accurate
and complete copies of Borrower’s Organizational Documents
which are operative and in effect as of the Effective
Date.
5.2
Authorization
Borrower represents and warrants
that the execution, delivery, and performance by Borrower of the
Loan Documents has been duly authorized by all necessary action on
the part of Borrower and are not inconsistent with Borrower’s
Organizational Documents or any resolution of the Board of
Directors of Borrower, do not and will not contravene any provision
of, or constitute a default under, any indenture, mortgage,
contract, or other instrument to which Borrower is a party or by
which it is bound, and that upon execution and delivery thereof,
the Loan Documents will constitute legal, valid, and binding
agreements and obligations of Borrower, enforceable in accordance
with their respective terms.
5.3
No Governmental
Approval Necessary
Borrower represents and warrants
that no consent by, approval of, giving of notice to, registration
with, or taking of any other action with respect to or by any
federal, state, or local governmental authority or organization is
required for Borrower’s execution, delivery, or performance
of the Loan Documents.
5.4
Accuracy of
Financial Statements
Borrower represents and warrants
that all of its audited financial statements heretofore delivered
to Lender have been prepared in accordance with Accounting
Standards.
Borrower represents and warrants
that all of its unaudited financial statements heretofore delivered
to Lender fully and fairly represent Borrower’s financial
condition as of the date thereof and the results of
Borrower’s operations for the period or periods covered
thereby and are consistent with other financial statements
previously delivered to Lender.
Borrower represents and warrants
that since the dates of the most recent audited and unaudited
financial statements delivered to Lender, there has been no event
which would have a Material Adverse Effect on its financial
condition.
Borrower represents and warrants
that all of its pro forma financial statements heretofore delivered
to Lender have been prepared consistently with Borrower’s
actual financial statements
9
and fully and fairly
represent
