EXHIBIT 10.7
[▇▇▇▇▇ FARGO LOGO]
ACCOUNT PURCHASE AGREEMENT
This Agreement is dated as of Nov 27, 2006 between ▇▇▇▇▇ Fargo Bank, National
Association, acting through its ▇▇▇▇▇ Fargo Business Credit operating division
("WFBC"), and MTI Technology Corporation ("Customer"). The Customer and WFBC
agree as follows:
ARTICLE I
PURPOSE OF AGREEMENT
1.01 PURPOSE OF AGREEMENT. The Customer desires to sell and assign to WFBC
acceptable accounts receivable and WFBC desires to purchase such accounts on the
terms and conditions set forth herein. The purpose of this Agreement is
commercial in nature and not for household, family and/or personal use. This
Agreement sets forth the terms and conditions on which WFBC will consider
purchasing accounts receivable from the Customer.
ARTICLE II
DEFINITIONS
2.01 "ACCOUNT" means any right of payment from the Account Debtors set forth on
Exhibit A hereto, as the same may be amended from time to time by the parties,
of the net amount for goods sold, or leased and delivered or services rendered
in the ordinary course of Customer's business which is not evidenced by an
instrument or chattel paper.
2.02 "ACCEPTABLE ACCOUNT" means an Account, in an amount not to be less than
$100, acceptable to WFBC, which conforms to the warranties and terms set forth
herein, net of any credits or allowances of any nature and is not an
Unacceptable Account as defined below.
2.03 "ACCOUNT DEBTOR" means Customer's customer or any other person or entity
owing money to the Customer with respect to the Account.
2.04 "ACCOUNT DEBTOR DISPUTE" means a claim by Account Debtor against Customer,
of any kind whatsoever, that reduces or may reduce the amount collectible from
Account Debtor by WFBC which arises at anytime, whether before or after signing
of this Agreement or the purchase of any Account. Any dispute which is a
combination of a Credit Problem and an Account Debtor Dispute shall be deemed to
be an Account Debtor Dispute for purposes of this Agreement.
2.05 "COLLATERAL" means the intangible or tangible property given as security
to WFBC by Customer for any obligations and liabilities of Customer to WFBC
under this Agreement.
2.06 "COLLECTED RESERVE ACCOUNT" means the account established by WFBC for
Customer to which from time to time credits will be made, debits taken and
disbursements made in accordance with this Agreement. Provided there is no Event
of Default hereunder, or any event which with the passage of time or notice
would be an Event of Default, any available balance held in the Collected
Reserve Account shall be released to the Customer twice weekly. Any fee, charge
or other obligation of the Customer under this Agreement may be charged against
this account in WFBC's sole discretion.
2.07 "CUSTOMER" means the seller and assignor of the Accounts.
2.08 "CREDIT PROBLEM" means, as established by the Customer, that an Account
Debtor is unable to pay its debts because the Account Debtor is financially
unable to pay the Accounts or the Account Debtor is the subject of a bankruptcy,
insolvency, or receivership proceeding within 120 days of the date of the
invoice.
2.09 "EVENT OF DEFAULT" shall mean the existence of a default pursuant to
Article Vll hereunder, or a default under any documents given to WFBC in
connection with this Agreement.
2.10 "INITIAL PAYMENT" shall mean with respect to a given Account an amount
equal to the gross face amount of such Account less stated trade discounts
offered by the Customer to the Account Debtor less ten percent. This percentage
may be adjusted by WFBC at any time at WFBC's commercially reasonable discretion
upon prior notice to the Customer.
2.11 "MINIMUM FEE" shall mean the minimum fee paid per month by the Customer as
stated in Section 6.06 below.
2.12 "NET PURCHASE PRICE" for any Account means an amount equal to the gross
face amount of such Account less WFBC's Discount and other charges with respect
to such Account and less any amount of any trade discounts, credits or
allowances, or any other reductions or adjustments to such Account taken by the
Account Debtor.
2.13 "ORIGINATION FEE" shall mean the fee payable on closing of this Agreement,
and on each renewal of this Agreement, as set forth in Section 6.06 below.
2.14 "PART PAYMENT" for any Account means any payment made by WFBC to the
Customer with respect to such Account which is less than the full Net Purchase
Price as more fully described in Article III below.
2.15 "PRIME RATE" shall mean the highest of the Prime Rate published by ▇▇▇▇▇
Fargo Bank, N.A. as the base rate on corporate loans. In the event the Prime
Rate as published by ▇▇▇▇▇ Fargo Bank, N.A. ceases to exist or ▇▇▇▇▇ Fargo Bank,
N.A. ceases publishing a Prime Rate, the holder hereof will substitute a
comparable index which is outside the control of the holder. In the event of an
error by ▇▇▇▇▇ Fargo Bank, N.A., the "Prime Rate" will be based upon the Prime
Rate as corrected. Any increase or decrease in the Prime Rate shall be
effective as of the next business day following such adjustment and such
adjusted Prime Rate shall be the applicable Prime Rate in determining the rate
of interest payable hereunder.
2.16 "REPURCHASE PRICE" for any Account means the Net Purchase Price less any
amounts collected from the Account Debtor on the Account plus all fees, costs or
expenses associated with the repurchase or collection of such Account. In any
event where repurchase is required under this Agreement, WFBC, at its
discretion, may charge the Repurchase Price to Customer's Collected Reserve
Account which may create a deficit balance under Section 3.06 below.
2.17 "UNACCEPTABLE ACCOUNT" shall mean Accounts which are not acceptable in
WFBC's sole discretion including but not limited to the following Accounts:
2.17(a) Accounts owed by any unit of government, whether foreign or
domestic (provided, however, that there shall be included in Acceptable
Accounts that portion of Accounts owed by such units of government for
which the Customer has provided evidence satisfactory to WFBC that (i)
WFBC has a first priority perfected security interest and (ii) such
Accounts may be enforced by WFBC directly against such unit of government
under all applicable laws);
2.17(b) Accounts owed by an Account Debtor located outside the United
States which are not (i) backed by a bank letter of credit naming WFBC as
beneficiary or assigned to WFBC, in WFBC's possession and acceptable to
WFBC in all respects, in its sole discretion or (ii) covered by a foreign
receivables insurance policy acceptable to WFBC in its sole discretion;
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2.17(c) Accounts owed by an Account Debtor that is insolvent, the subject
of bankruptcy proceedings or have gone out of business;
2.17(d) Accounts owed by a shareholder, subsidiary, affiliate, officer or
employee of the Customer;
2.17(e) Accounts not subject to a duly perfected security interest in
WFBC's favor or which are subject to any lien, security interest or claim
in favor of any Person other than WFBC including without limitation any
payment or performance bond;
2.17(f) Accounts that have been restructured, extended, amended or
modified;
2.17(g) That portion of Accounts that constitutes advertising, finance
charges, service charges or sales or excise taxes;
2.17(h) Accounts that have been invoiced, paid or partially paid in
advance of the full delivery and acceptance of goods or the performance
and acceptance of services or in advance of the submission of the Account
to WFBC.
2.17(i) Accounts, or portions thereof, that fail to conform to the
representation and warranties contained herein or are otherwise deemed
unacceptable by WFBC in its sole discretion.
2.18 "WFBC DISCOUNT" shall be equal to 0.0% of the face amount of each Account
purchased by WFBC together with a fee which shall be equal to of the face amount
of the Account times the lesser of (i) the sum of the Prime Rate, plus 2.0% per
annum, or (ii) if purchased volume should exceed $5,000,000 through a two-month
period then WFBC will adjust the WFBC Discount, upon written notification to
WFBC, to: the sum of Prime Rate, plus 1,75% per annum, or (iii) if purchased
volume should exceed $10,000,000 through a two-month period then WFBC will
adjust the WFBC Discount, upon written notification to WFBC, to: Prime Rate,
plus 1.5% per annum, or (iv) the lawful maximum, if any, in effect from time to
time for advances to borrowers of the type, in the amount, for the purposes and
otherwise of the kind herein contemplated. Such fee shall be computed on a daily
basis from the date each Account is purchased until the date of receipt of good
funds paying each Account in full. The fee shall be calculated on the basis of a
360-day year for the actual number of days elapsed.
2.18(a) If any Event of Default exists, the WFBC Discount may increase in
an amount to be determined by WFBC at its sole discretion (but in no event
shall such fee be more than the lawful maximum, if any, in effect from
time to time for advances of the type, in the amount, for the purposes and
otherwise of the kind herein contemplated).
2.19(b) WFBC may, upon prior written notice to Customer, change the amount
of any fee or charge provided for herein at its sole discretion; provided,
however, if WFBC increases the rate above the Prime Rate plus 2% in the
absence of the occurrence of an Event of Default, Customer may terminate
this agreement without payment of further Minimum Fees as provided in
Section 9.02 hereof.
ARTICLE III
PURCHASE OF ACCOUNTS
3.01 Pursuant to the terms herein, Customer hereby transfers and assigns to
WFBC, its successors and assigns, as absolute owner, and WFBC hereby accepts
from the Customer all of the Customer's right, title and interest in and to:
3.01(a) all of the Customer's Accounts together with all rights of action
accrued or to accrue thereon, including, without limitation, full power to
collect, ▇▇▇ for, compromise, assign, in whole or in part, or in any other
manner enforce collection thereof in Customer's name or otherwise; and
3.01(b) all right, title and interest of the Customer in and to the books
and records evidencing or relating to the Accounts, all deposits, or other
security for the obligation of any person under or relating to the
Accounts, all goods relating to, or which by sale have resulted in, the
Accounts, including goods returned by any Account Debtor, debtor or
obligor in any way obligated on or in connection with the Account
including, without limitation, the Account Debtor, all rights of stoppage
in transit, replevin, repossession and reclamation and all other rights of
action of an unpaid vendor or lienor; and
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3.01(c) proceeds of the foregoing in any form.
3.02 APPROVAL: WFBC shall not purchase any Account assigned pursuant to Section
3.01 unless such Account is first submitted to WFBC by Customer for approval in
customer's sole discretion. WFBC is not obligated to buy any Account from a
Customer that WFBC does not deem acceptable in its sole discretion.
3.03 PURCHASE: Upon approval and acceptance by WFBC of an Account submitted by
Customer for sale to WFBC, Customer shall sell and WFBC shall purchase such
Account.
3.04 PURCHASE PRICE: As consideration for the assignment and sale of an Account
to WFBC, WFBC shall pay to the Customer the Net Purchase Price for such Account
on the terms and conditions as stated herein.
3.05 PAYMENT OF PURCHASE PRICE: If no Event of Default exists hereunder, WFBC
shall pay for each Account purchased hereunder the Net Purchase Price for such
Account to Customer as follows:
3.05(a) Upon the purchase of an Account hereunder by WFBC, and receipt of
all documents and forms described in Section 3.07 below and upon
fulfillment of all terms precedent to such sale or assignment as more
fully described below, WFBC shall pay to the Customer, or advance to the
Collected Reserve Account as appropriate, the Initial Payment with respect
to such Account.
3.05(b) After collection of an Account purchased by WFBC, WFBC shall
credit the Customer's Collected Reserve Account with the amount collected
on the Account less: (i) the Initial Payment, (ii) Part Payment(s), and
(iii) any fees, expenses or charges owed to WFBC as more fully described
herein.
3.05(c) Upon an Event of Default hereunder (or an event which with the
passage of time or notice would become an Event of Default), WFBC may hold
any balance in the Collected Reserve Account as Collateral for any
obligations of the Customer to WFBC and WFBC may charge any such
obligations against the Collected Reserve Account in its sole discretion.
3.05(d) In the event WFBC receives payment on an Account which has not
been purchased, such payment will be credited to the Customer's Collected
Reserve Account and released in accordance with this Agreement.
3.06 REPORTING AND STATEMENT OF ACCOUNT: On a weekly basis, when there is
activity related to the Customer, WFBC shall prepare, and make available to the
Customer, an accounting of the purchases, collections, and amounts credited to
and/or charged against the Collected Reserve Account during that week or other
period. Should such a statement of account indicate a deficit balance, such
balance shall be due and payable and the Customer shall immediately pay to WFBC
the amount of such deficit plus accrued interest on such deficit balance.
Interest shall accrue on any deficit balance at the annual rate of eighteen
percent (18%), calculated on a daily basis, not to exceed the applicable legal
limit, until such deficit is paid in full.
3.07 REQUIRED FORMS: When Customer offers Accounts to WFBC for sale, WFBC shall
receive (a) an assignment of Accounts, in a form satisfactory to WFBC and signed
by an authorized representative of Customer, (b) an original invoice or such
other document acceptable to WFBC in its sole discretion, (c) a copy of the ▇▇▇▇
of Lading (if any), (d) proof of delivery, (e) contract, purchase order, or
purchase order number which corresponds with such invoice(s), as appropriate to
the business of Customer, (f) notification of assignment and waiver of offset
signed by the Account Debtor in a form acceptable to WFBC in its sole discretion
and (g) and any other document which WFBC may reasonably require. If any
required document is not received by WFBC, WFBC will provide Customer with
notice of the deficiency and Customer agrees to provide the required documents
within three (3) days of receipt of the notice.
3.08 NOTIFICATION: Prior to purchasing any Accounts, WFBC will notify all
Account Debtors of the assignment of Accounts and instruct the Account Debtor to
make payments directly to WFBC.
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3.09 NOTATION OF ASSIGNMENT: Customer shall make a notation on each original
invoice (or the electronic equivalent of an invoice) or other such documentation
accepted by WFBC for each Account which indicates that the Account has been
assigned and/or sold to WFBC with the following language:
This invoice has been assigned to
and is payable to:
▇▇▇▇▇ FARGO BUSINESS CREDIT, INC.
Dept. 1494
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
For information call 303/▇▇▇-▇▇▇▇
In the event any invoice (or the electronic equivalent of an invoice) is sent or
transmitted to any Account Debtor without the required notation, a fee equal to
1.0% of the face amount of such invoice shall be assessed.
3.10 SOLE PROPERTY: Once WFBC has purchased an Account, any and all payments
from the Account Debtor as to that Account are the sole property of WFBC.
3.11 CREDIT RISK: Provided no Event of Default has occured hereunder, and
Customer has complied with all requirements of this Agreement, WFBC assumes the
risk of non-payment due to a Credit Problem with respect to Purchased Accounts.
3.12 BOOK ENTRY: Customer shall, immediately upon sale of Accounts to WFBC,
make proper entries on its books and records disclosing the absolute sale of
said Accounts to WFBC, including the proper inclusion of the language stated in
Section 3.09 above, on said books and records and other documents as so directed
by WFBC.
ARTICLE IV
CUSTOMER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
4.01 REPRESENTATIONS AND WARRANTIES. Customer hereby represents and warrants
and as follows:
4.01 (a) Customer is properly licensed, qualified and authorized to
operate the business of MTI Technology Corporation under the trade name(s)
of N/A and Customer's trade name(s) have been properly filed and published
as required by applicable law. Customer, and the persons executing this
document, are duly authorized to execute and deliver this Agreement and
all other documents required to be executed and delivered hereunder.
4.01 (b) Customer is solvent, is not a Debtor under the United States
Bankruptcy Code or under the direction of a receiver, and Customer has
made and shall continue to make timely payment on deposit of any tax
required to be deducted and withheld by Customer from the wages of any of
its employees.
4.01 (c) Customer is, at the time of purchase of each Account by WFBC, the
lawful owner of and has good and undisputed title to such Account. Except
liens in favor of WFBC pursuant to this Agreement, each Account, at the
time of purchase is free from any liens, mortgages, restrictions or
encumbrances. Each Account offered for sale to WFBC is an Acceptable
Account as defined in Section 2.02 above except as the definition of
Acceptable Account includes the discretion of WFBC.
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4.01 (d) Each Account Debtor's business is solvent to the best of
Customer's information and knowledge at the time of this Agreement and at
the time each Account is presented to WFBC for purchase.
4.01 (e) Each Account offered for sale to WFBC is an accurate and
undisputed statement of indebtedness owed by Account Debtor to Customer
for a certain sum which is due and payable in 30 days or less, or within
such time as is agreed to in writing by WFBC and Customer, is for a bona
fide sale, delivery and acceptance of merchandise or performance of
services which have been received and finally accepted by the Account
Debtor. Customer has all rights to transfer or sell such Accounts to WFBC
and such Accounts are payable by Account Debtor without offset, deduction
or counterclaim.
4.01 (f) Customer does not own, control or exercise dominion over, in any
way whatsoever, the Account Debtor or the business of any Account Debtor
for whom Accounts are to be sold by Customer to WFBC.
4.01 (g) All financial records, statements, books or other documents shown
to WFBC by Customer at anytime, either before or after the signing of this
Agreement are true and accurate in all material respects.
4.01 (h) Customer has not transferred, pledged or granted a security
interest in Customer's Accounts or other Collateral to any other party
which Customer has not fully disclosed in writing to WFBC.
4.01 (i) There is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or other agency now pending, or
to the knowledge of Customer, threatened against or affecting Customer,
which if adversely determined, would have a material adverse effect on the
business, operations, property, assets or condition, financial or
otherwise, of Customer.
4.01 (j) The execution and performance by Customer of the terms and
provisions of this Agreement and the execution and delivery of any other
documents required to be executed and delivered hereunder have been duly
authorized by all requisite company action, and neither the execution nor
the performance of this Agreement or any other documents required to be
delivered hereunder, will violate any provision of law, any order of any
court or other agency of government, the governing documents of Customer,
or any agreement or other instrument to which Customer is a party, or by
which Customer is bound, or be in conflict with, result in breach of, or
constitute (with due notice or lapse of time or both) a default under, or
result in the creation or imposition of any lien, charge or encumbrance of
any nature whatsoever upon any of the property or assets of Customer,
pursuant to any such agreement or instrument, except as provided
hereunder. Customer agrees that it will execute and perform all terms
hereunder.
4.02 NEGATIVE COVENANTS. Customer agrees as follows:
4.02 (a) Customer will not under any circumstances or in any manner
whatsoever, interfere with any of WFBC's rights under this Agreement.
4.02 (b) For the duration of this Agreement and for any period thereafter
for as long as any obligation to repurchase or indebtedness whatsoever
remains owing by Customer to WFBC, Customer will not sell or assign
Accounts except to WFBC.
4.02 (c) Customer shall not pledge, transfer or grant a security interest
in any Accounts or other Collateral of Customer nor shall Customer consent
to the transfer, pledge or grant a security interest in or the placement
of any lien or encumbrance, by any other party on any Accounts or other
Collateral belonging to the Customer for the term of this Agreement and
for as long as Customer may be required to repurchase any Account or is
indebted to WFBC hereunder without the written consent of WFBC. Customer
shall provide written notice to WFBC within five business days of Customer
obtaining any knowledge, from any source, of the assertion, filing,
recording or perfection by any means, of any non-consensual lien, claim or
encumbrance against the Collateral.
4.02 (d) Customer will not change or modify the terms of the original
invoice or agreement with the Account Debtor or the order of payment on
Accounts sold to WFBC unless WFBC first consents to such change or
modification in writing.
4.02 (e) Customer shall not be involved in a material dispute other than
an Account debtor Dispute with an Account Debtor which may have a material
adverse impact on payment, regardless of validity, during the term of this
Agreement.
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4.02 (f) Customer shall not breach any warranties or promises in this
Agreement with regard to any unpaid Account or Account Debtor from whom
payment on any such Account is due.
4.02 (g) Customer shall not intentionally contribute to, or aggravate any
Credit Problem of any Account Debtor; provided, however, that generating
new Accounts from such Account Debtor shall not be deemed a violation of
this provision.
4.03 AFFIRMATIVE COVENANTS. Customer agrees as follows:
4.03 (a) With respect to misdirected payments, whenever any payment on any
Account comes into Customer's possession, Customer shall hold such payment
in trust and safekeeping, as the property of WFBC, and immediately turn
over to WFBC such payment in the same form as it was received by Customer
to WFBC. Customer shall pay a misdirected payment fee in the amount of
fifteen percent (15%) of the amount of any payment on account of a
Purchased Account which has been received by Customer and not delivered in
kind to WFBC no later than three (3) business days following the date of
receipt by Customer. Further, Customer shall segregate and hold in trust
and safekeeping, as the property of WFBC, and immediately turn over to
WFBC, any goods or inventory returned to, reclaimed or repossessed by the
Customer which are covered by an Account purchased by WFBC.
4.03 (b) Customer will maintain such insurance covering Customer's
business and/or the property of the Account Debtors as is customary and
adequate for businesses similar to the business of Customer in an amount
as is sufficient to compensate for reasonably foreseeable loss, and
promptly pay all premiums with respect to the policies covering such
insurance. .Further, the Customer shall have WFBC named as loss payee for
such insurance.
4.03 (c) Customer will promptly notify WFBC of any material disputes
between Account Debtor and Customer or the return of any product by
Account Debtor to Customer.
4.03 (d) Customer will notify WFBC in writing prior to any change in the
location of any of its places of business, including the location of the
Customer's inventory or, if Customer has or intends to acquire any
additional place of business. Customer will not change its chief executive
office or the office or offices where Customer's books and records
concerning Accounts are kept without prior notice to WFBC.
4.03 (e) Customer will immediately notify WFBC in writing of any proposed
change of Customer's name, identity, legal entity, corporate structure,
business dissolution, use of any additional trade name of Customer and
will not effect any such change without WFBC's written consent which
consent shall not be unreasonably withheld. Customer will promptly notify
WFBC of any proposed change in any of the officers or directors of
Customer.
4.03 (f) Customer will immediately notify WFBC in writing of the
commencement of any legal proceeding or service of any legal document
affecting the Customer that is reasonably likely to have a material
adverse effect on Customer's business including, but not limited to, any
judgments, liens, attachments, garnishments, complaints or similar
process. Customer shall notify WFBC in advance of the filing of a
voluntary petition under the United States Bankruptcy Code and shall
notify WFBC immediately if any involuntary bankruptcy petition is filed
against Customer or if a receiver is appointed to manage the property of
Customer.
4.03 (g) At least once per quarter, or once per month upon the occurrence
of an Event of Default, Customer will furnish to WFBC financial
statements, including but not limited to a statement of profit and loss
and a balance sheet, satisfactory proof of payment and compliance with all
federal, state and local tax requirements and any other information
requested by WFBC.
4.03 (h) Customer will promptly notify WFBC of the return of any product
by Account Debtor to Customer.
4.03 (i) Customer shall promptly notify WFBC of any claim or loss or
offset of any kind against Customer or WFBC asserted by Account Debtor
during any time period covered by this Agreement.
4.03 (j) Upon the occurrence of an Account Debtor Dispute, Customer shall
immediately pay to WFBC the Repurchase Price for any and all Accounts so
disputed.
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ARTICLE V
SECURITY INTEREST
5.01 SECURITY INTEREST/COLLATERAL: As further inducement for WFBC to enter into
this Agreement, Customer grants to WFBC, as collateral for the repayment of any
and all obligations and liabilities whatsoever of Customer to WFBC, a security
interest, under the Uniform Commercial Code, in the following described
property, as defined under the Uniform Commercial Code, hereinafter collectively
called "Collateral": All presently existing or hereafter arising accounts, the
Collected Reserve Account established hereunder and contract rights, inventory,
general intangibles, chattel paper, documents, and books and records all to the
extent they pertain to accounts, and all proceeds and products of the foregoing
property.
5.02 SECURITY DOCUMENTS: Customer shall execute all and deliver to WFBC any
and all documents and instruments as WFBC may reasonably request from time to
time, including, without limitation, UCC financing statements or amendments.
Customer authorizes WFBC to file a financing statement with any appropriate
authority reflecting its security interest and further authorizes WFBC to file
other filings including amendments (other than amendments adding collateral) or
terminations, as WFBC deems appropriate.
ARTICLE VI
OPERATIONAL PROVISIONS
6.01 CREDIT PROBLEMS: If Customer asserts that nonpayment of an Account
purchased by WFBC is due to a Credit Problem, then Customer shall provide
documentation or other proof satisfactory to WFBC, in its commercially
reasonable discretion, establishing that such nonpayment is due solely to a
Credit Problem. If WFBC is not satisfied, in its commercially reasonable
discretion, that nonpayment is solely due to a Credit Problem, then customer
shall be obligated to pay the Repurchase Price for such Account to WFBC. The
documentation required under this section may be provided at any time prior to
such Account being charged back to Customer's Collected Reserve Account at which
time nonpayment is deemed to be due to an Account Debtor Dispute hereunder.
6.02 POWER OF ATTORNEY: In order to carry out this Agreement and avoid
unnecessary notification of Account Debtors, Customer irrevocably appoints WFBC,
or any person designated by WFBC, as its special attorney in fact, or agent,
with power to:
6.02(a) strike out Customer's address on all invoices delivered to Account
Debtors and note WFBC's address on all invoices.
6.02(b) receive, open and dispose of all mail addressed to Customer
(including any trade name of Customer) sent to WFBC's address.
6.02(c) endorse the name of Customer or Customer's trade name on any
checks or other evidences of payment that may come into the possession of
WFBC on Accounts, and on any other documents relating to any of the
Accounts or to Collateral.
6.02(d) in Customer's name, or otherwise, demand, ▇▇▇ for, collect, and
give releases for any and all monies due to or become due on Accounts.
6.02(e) compromise, prosecute, or defend any action, claim or proceeding
as to said Accounts.
6.02(f) Upon the occurrence of an Event of Default, offer a trade discount
to Customer's Account Debtor exclusive of Customer's normal business
custom with said Account Debtor.
6.02(g) Upon the occurrence of an Event of Default, initiate electronic
debit or credit entries through the ACH system to Customer's account or
any other deposit account maintained by Customer wherever located;.
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6.02(h) sign Customer's name on any notice of assignment of an Account,
financing statement, amendment to any financing statement and on any
notices to Account Debtors.
6.02(i) do any and all things necessary and proper to carry out the
purposes intended by this Agreement.
The authority granted to WFBC under this provision shall remain in full force
and effect until all assigned Accounts are paid in full or repurchased and
any indebtedness of Customer to WFBC is discharged.
6.03 DOUBLE PAYMENTS: Should WFBC receive a double payment on an Account or
other payment which is not identified, WFBC shall carry these sums as open items
in its accounting and shall return any double payment to the payor or apply such
unidentified payment pursuant to the terms hereof upon proper identification and
documentation.
6.04 HOLD HARMLESS. Customer shall hold WFBC harmless for any losses or damages
that Customer may suffer on account of the ill will of any Account Debtor
arising from WFBC's collection or attempted collection on any purchased
Accounts, provided that WFBC acts in a commercially reasonable manner in such
collection or attempted collection.
6.05 TAXES: Should any excise, sale, use or other tax be imposed by any
federal, state or local authority requiring a deduction or withholding from the
proceeds of sale of Accounts, or if the Account Debtor is authorized to withhold
and deduct such tax or levy, then the Customer shall immediately pay WFBC the
amount of the tax or levy so withheld, and the Customer shall indemnify and hold
WFBC harmless from any loss or expense on account of such tax.
6.06 MINIMUM AND ORIGINATION FEE: Customer shall pay a Minimum Fee per month in
the amount of S10,000 during the term of this Agreement (and any extension
hereof). The parties agree that any fees paid pursuant to Section 2.18 hereof
shall be counted toward the satisfaction of the Minimum Fee payment described
above. Customer shall pay any deficiency between the Minimum Fee and the fees
calculated under Section 2.18 hereof on the 15th day of the next calendar month.
The Minimum Fee will be waived for the first full month of this Agreement.
Customer shall pay an origination fee in the amount of $0.00 upon closing of
this Agreement, and at the anniversary date upon each renewal, in the amount of
SO.OO. WFBC agrees, however, that after the expiration of the first 12 months
hereof, (a) if Customer has paid total fees calculated under Section 2.18 hereof
and under this Section in the total amount of $240,000 or more, or (b) if
Customer obtains financing from any ▇▇▇▇▇ Fargo & Co. entity, that is utilized
for paying off all obligations to WFBC, and ceases selling Accounts hereunder.
then, in either such case, Minimum Fees for the remainder of the then current
term shall be waived from the date of the full pay off to WFBC or the date
selling of Accounts ceases, whichever occurs later.
6.07 ACCOUNT DEBTOR DISPUTES: Any Account purchased by WFBC which is unpaid for
90 days or more after the due date or 120 days after the invoice date, whichever
occurs earlier, shall be deemed to be unpaid due to an Account Debtor Dispute
unless prior to such time the information required by Section 6.01 is provided
to, and accepted by, WFBC.
6.08 REPORTS: Except as provided by Section 3.06, in the event Customer
requests information from WFBC regarding Customer's account hereunder, such
requests shall be subject to the schedule of fees provided by WFBC which
schedule may be adjusted by WFBC from time to time in its discretion.
6.09 WFBC SETTLEMENT OF ACCOUNTS: WFBC may settle any Account Debtor Dispute
relating to an Account purchased by WFBC with the Account Debtor if Customer has
not repurchased the Account subject to the Account Debtor Dispute. Such
settlement does not relieve Customer of any obligation (including any repurchase
obligation) under this Agreement with respect to any Accounts; provided,
however, that if no Event of Default has occurred, WFBC shall not settle any
Accounts it has not purchased without Customer's consent.
6.10 CUSTOMER SETTLEMENT OF ACCOUNTS: If Customer does not fully and promptly
settle any Account Debtor Dispute, the Customer shall repurchase each Account
purchased by WFBC that is subject to such Account Debtor Dispute from WFBC for
its Repurchase Price.
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6.11 DOCUMENTS: If documents submitted by Customer to WFBC for the purchase of
any Account are fraudulent, or if any such documents are materially mistaken,
incorrect or erroneous, or if the Customer fails to submit any document required
by WFBC under this Agreement for the purchase of any Account, then such Account
shall be deemed to be subject to an Account Debtor Dispute and the Customer
shall repurchase such Account and pay the Repurchase Price as stated herein.
6.12 INFORMATION: In the event WFBC provides financial information to Customer
regarding third parties, whether by setting credit limits, at the request of
Customer or otherwise, Customer understands that WFBC is not making any
representations or warranties or expressing an opinion as to the
creditworthiness of any such third party.
ARTICLE VII
DEFAULT
7.01 Any one or more of the following shall be an Event of Default hereunder:
7.01 (a) Customer shall fail to pay any indebtedness to WFBC when due or
repurchase any Account when required hereunder.
7.01 (b) Customer shall breach any term, provision, promise, warranty,
representation or covenant under this Agreement, or under any other
agreements, contracts, between Customer and WFBC or obligation to WFBC.
7.01 (c) The appointment of any receiver or trustee of all or a
substantial portion of the assets of Customer.
7.01 (d) Customer shall become insolvent or unable to pay debts as they
mature, shall make a general assignment for the benefit of creditors or
shall voluntarily file a petition under the United States Bankruptcy Code
or any similar law.
7.01 (e) Any involuntary petition in bankruptcy shall be filed against
Customer and is not dismissed within 60 days or an order for relief is
entered against Customer under the United States Bankruptcy Code.
7.01 (f) Any enforcement process such as levies, attachments or executions
shall be issued against the Collateral.
7.01 (g) Any financial statements, profit and loss statements, or
schedules, other statements or documents furnished by Customer to WFBC are
false or incorrect in any material respect.
7.01 (h) Any documents submitted by Customer to WFBC for the purchase of
an Account are fraudulent or if any such document is materially mistaken,
incorrect and/or erroneous, or if the Customer fails to submit any
document required by WFBC under Section 3.07 of this Agreement for the
purchase of that Account.
7.01 (i) Any guarantor of Customer's obligations hereunder is in default
under the guaranty or if any guarantor withdraws or revokes the guaranty
as to future sales of Accounts or otherwise.
ARTICLE VIII
REMEDIES
8.01 In the event of an occurrence of an Event of Default, WFBC may do any one
or more of the following:
8.01 (a) Declare immediately due and payable, and to charge back, all
indebtedness of Customer to WFBC, including without limitation (i)
outstanding purchased Accounts, (ii) any unpaid Minimum Fees and (iii)
all other fees, costs and expenses as required hereunder.
8.01 (b) Cease purchasing Accounts under this Agreement.
8.01 (c) Notify any Account Debtor and take possession of Collateral and
collect any Accounts without judicial process.
8.01 (d) Require Customer to assemble the Collateral and the records
pertaining to Accounts and make them available to WFBC at a place
designated by WFBC.
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8.01 (e) Enter the premises of Customer and take possession of the
Collateral and of the records pertaining to the Accounts and any other
Collateral during regular business hours.
8.01 (f) Grant extensions, compromise claims and settle Accounts for less
than face value, all without prior notice to Customer.
8.01 (g) Use, in connection with any assembly or disposition of the
Collateral, any trademark, trade name, trade style, copyright, patent
right or technical process used or utilized by Customer.
8.01 (h) Initiate electronic credit or debit entries through the ACH
system to and from Customer's deposit account maintained by Customer
wherever located.
8.01 (i) Hold Customer liable for any deficiency for any amounts due and
owing to WFBC.
8.01 (j) Require the Customer to repurchase any and all Accounts, whether
disputed or undisputed, and pay the Repurchase Price for those Accounts as
provided herein, and in the event the Repurchase Price is not promptly
paid, WFBC may continue to collect such Accounts and charge a reasonable
fee in connection with such collection activities in addition to any other
fees or charges provided for herein.
8.01 (k) Cease making reports or accountings to the Customer except as
specifically required by this Agreement.
ARTICLE IX
TERM AND TERMINATION
9.01 This Agreement shall continue in full force and effect until the earliest
of (a) two years from the date of this Agreement; (b) any date agreed to in
writing by the parties hereto, (c) upon at least 60 days written notice by
Customer; or (d) any date set by WFBC upon the occurrence of an Event of
Default. This Agreement shall automatically continue for the following twenty
four-month period unless sixty days prior to the termination date, the Customer
notifies WFBC in writing that the Customer wishes to terminate this Agreement.
On the date of termination, all obligations owing by the Customer to WFBC,
including any unpaid Minimum Fees for the two year term, shall be accelerated
and become immediately due and payable in full without further notice or demand.
9.02 Upon termination, Customer shall repurchase any and all Accounts, whether
disputed or undisputed, as may be requested by WFBC, and shall pay the
Repurchase Price for those Accounts as provided herein as well as any other
indebtedness or obligations owed to WFBC by Customer including, except as
specifically provided in Section 6.06, any unpaid Minimum Fee for the two year
term of this Agreement, WFBC continues and shall continue to have a security
interest in the Collateral of Customer until all amounts owed to WFBC by
Customer are paid in full or are satisfied. Once all amounts owed to WFBC by
Customer hereunder are paid in full or satisfied, WFBC shall authorize the
Customer to file UCC termination statements and WFBC hereby agrees to execute
and deliver any documents prepared by the Customer which the Customer shall
reasonably request to evidence any termination of interest in the Collateral
9.03 In the event WFBC is required to repay any Account Debtor for a payment
received by WFBC on an Account, and non-payment of that Account would have
required repurchase by Customer under this Agreement, the amount of the
repayment by WFBC shall be an obligation of Customer to WFBC notwithstanding the
termination of this Agreement. In the event the Customer receives a payment from
WFBC to which the Customer has no rights, repayment of the funds to WFBC is an
obligation of the Customer to WFBC whether or not the Agreement has been
terminated. In either event, if the obligation is not paid upon five (5) days
notice of the obligation to pay from WFBC to Customer, WFBC may file a financing
statement in connection with the security interest granted herein (if necessary)
and exercise any and all rights it has under this Agreement to collect the
amounts due.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.01 BINDING ON FUTURE PARTIES: This Agreement inures to the benefit of and is
binding upon the heirs, executors,
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administrators, successors and assigns of the parties hereto except that the
Customer shall not have the right to assign its rights hereunder or any interest
herein without WFBC's prior written consent.
10.02 CUMULATIVE RIGHTS: No failure or delay by WFBC in exercising any right,
power or remedy under the Agreement or documents given in connection with the
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under the
Agreement. The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
10.03 WAIVER: WFBC may not waive its rights and remedies unless the waiver is in
writing and signed by WFBC. A waiver by WFBC of a right or remedy under this
Agreement on one occasion is not a waiver of the right or remedy on any
subsequent occasion.
10.04 CHOICE OF LAW: This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
10.05 INVALID PROVISIONS: Any provision of this Agreement which is prohibited or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof.
10.06 ENTIRE AGREEMENT: This instrument contains the entire Agreement between
the parties. This Agreement, together with the documents given in connection
herewith, comprises the complete and integrated agreement of the parties on the
subject matter hereof and supersedes all prior agreements, written or oral, on
the subject matter hereof.
10.07 AMENDMENT: Except as otherwise provided herein, any addendum or
modification hereto must be signed by both parties.
10.08 EFFECTIVE: This Agreement becomes effective when it is accepted and
executed by an authorized officer of WFBC.
10.09 INFORMATION: Without limiting WFBC's right to share information regarding
the Customer and its affiliates with WFBC's agents, accountants, lawyers and
other advisors, ▇▇▇▇▇ Fargo & Co., and all direct and indirect subsidiaries of
▇▇▇▇▇ Fargo & Co. and other persons WFBC deems appropriate may exchange, discuss
or otherwise utilize any and all information they may have in their possession
regarding the Customer and its Affiliates, and the Customer waives any right of
confidentiality it may have with respect to such exchange of such information.
10.10 INDEMNIFICATION: Customer agrees to indemnify and hold WFBC harmless from
any and all liability, claims and damages, including attorneys' fees, costs of
suit and interest which WFBC may incur as a result of the failure of Customer to
pay withholding taxes due and payable to any taxing authority.
10.11 NOTICES HEREUNDER: All notices and communications hereunder shall be given
or made to the parties at their respective addresses set forth below, or at such
other address as the addressee may hereafter specify for the purpose of written
notice to the other party hereto. Such notices and communications shall be
effectively given by WFBC when and if given in writing and delivered to the
address set forth herein, delivered by facsimile or duly deposited in the mails
with first-class postage prepaid.
10.12 COSTS AND EXPENSES: Except as is prohibited by law, the Customer agrees to
pay on demand all costs and
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expenses, including (without limitation) reasonable attorneys' fees, incurred by
WFBC in connection with this Agreement and any other related document or
agreement, and the transactions contemplated hereby, including without
limitation all such costs, expenses and fees incurred in connection with the
negotiation, due diligence, preparation, execution, amendment, administration,
performance, collection and enforcement of the obligations and all such
documents and agreements and the creation, perfection, protection, satisfaction,
foreclosure or enforcement of any security interest granted hereunder, the
collection of any Account or any obligation owed by Customer to WFBC.
10.13 AUDIT: The Customer hereby agrees to pay WFBC, on demand, audit fees in
connection with any audits or inspections conducted by WFBC of any Collateral or
the Customer's operations or business at the rates established from time to time
by WFBC as its audit fees, together with all actual out-of-pocket costs and
expenses incurred in conducting any such audit or inspection; provided, however,
in the absence of the occurrence of an Event of Default, audits and/or
inspections shall take place no more then twice annually.
10.14 JURISDICTION: The parties hereby (a) consent to the personal jurisdiction
of the state and federal courts located in the State of Colorado in connection
with any controversy related to this Agreement; (b) waive any argument that
venue in any such forum is not convenient, (c) agree that any litigation
initiated by WFBC or the Customer in connection with this Agreement shall be
venued in either the State Courts of the City and County of Denver, Colorado or
the United States District Court, District of Colorado, and (d) agree that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
10.15 WAIVER OF JURY TRIAL: THE CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON
OR PERTAINING TO THIS AGREEMENT.
Executed and accepted this ----- day of ------------- at ---------------------.
Month/Year City/State
▇▇▇▇▇ FARGO BANK, NATIONAL
MTI Technology Corporation ASSOCIATION
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By:
-------------------- ----------------------
Signature Signature
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇▇▇▇
------------------ ----------------------
Name Name
Its: CFO Its: Vice President
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Title Title
Sworn and Subscribed before me this ---- day Witnessed by:
of ---------------------,---------.
--------------------------
Signature
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NOTARY PUBLIC
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NAME AND TITLE
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JURAT
State of California
County of ORANGE
Subscribed and sworn to (or affirmed) before me on
this 27 day of November, 2006.
by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
personally known to me or proved to me on the basis of satisfactory evidence to
be the person who appeared before me.
[SEAL]
Signature /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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