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EXHIBIT 10.17
Private Client Group
XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC.
00 Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
312/269-4438
FAX 312/000-0000
June 1, 1998
Alta Software, Inc.
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000X
Xxxxxx, XX 00000
RE: WCMA LINE OF CREDIT INCREASE
Ladies And Gentlemen:
This Letter Agreement will serve to confirm certain agreements of Xxxxxxx Xxxxx
Business Financial Services Inc. ("MLBFS") and Alta Software, Inc. ("Customer")
with respect to: (i) that certain WCMA NOTE, LOAN AND SECURITY AGREEMENT NO.
795-07601 between MLBFS and Customer (including any previous amendments and
extensions thereof), and (ii) all other agreements between MLBFS and Customer
or any party who has guaranteed or provided collateral for Customer's
obligations to MLBFS ("Guarantor") in connection therewith (collectively, the
"Loan Documents"). Capitalized terms used herein and not defined herein shall
have the meaning set forth in the Loan Documents.
Subject to the terms hereof, effective as of the "Effective Date" the Loan
Documents are hereby amended as follows:
1. The term "Maximum WCMA Line of Credit" shall mean $1,000,000.00.
2. The annual "Line Fee" during the period ending 795-07601, is hereby
increased to $5,000.00, of which $1,041.67 (the "Additional Fee") is now due
and owing. Customer hereby authorizes and directs MLBFS to charge the
Additional Fee to WCMA Account No. 795-07601 on or at any time after the
Effective Date.
3. The term "Interest Rate" shall mean a fluctuating per annum rate equal to
the sum of (i) 2.9%, and (ii) the interest rate from time to time published in
the "Money Rates" section of The Wall Street Journal for 30-day Commercial
Paper (i.e. high-grade unsecured notes sold through dealers by major
corporations). The Interest Rate will change as of the date of publication in
The Wall Street Journal of a 30-day Commercial Paper rate that is different
from that published on the preceding Business Day.
Except as expressly modified hereby, the Loan Documents shall continue in full
force and effect upon all of their terms and conditions. Nothing herein shall
be deemed to extend the Maturity Date of the WCMA Line of Credit.
By their execution of this Letter Agreement, the below-named Guarantors hereby
consent to the foregoing modifications to the Loan Documents, and hereby agree
that the "Obligations" under their respective Unconditional Guaranty and/or
agreement providing collateral shall extend to and include the Obligations of
Customer under the Loan Documents, as amended hereby.
Customer and said Guarantors acknowledge, warrant and agree, as a primary
inducement to MLBFS to enter into this Agreement, that: (i) no default or Event
of Default has occurred and is continuing under the
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Alta Software, Inc.
June 1, 1998
Page 2
Loan Documents; (ii) each of the warranties of Customer in the Loan Documents
are true and correct as of the date hereof and shall be deemed remade as of the
date hereof; (iii) neither Customer nor any of said Guarantors has any claim
against MLBFS or any of its affiliates arising out of or in connection with the
Loan Documents or any other matter whatsoever and (iv) neither Customer nor any
of said Guarantors has any defense to payment of any amounts owing, or any
right of counterclaim for any reason under, the Loan Documents.
Provided that no Event of Default, or event which with the giving of notice,
passage of time, or both, would constitute an Event of Default, shall then have
occurred and be continuing under the terms of the Loan Documents, the
amendments and agreements in this Letter Agreement will become effective on the
date (the "Effective Date") upon which: (i) Customer and the Guarantors shall
have executed and returned the duplicate copy of this Letter Agreement enclosed
herewith; (ii) an officer of MLBFS shall have reviewed and approved this Letter
Agreement as being consistent in all respects with the original internal
authorization hereof; and (iii) to the extent applicable, MLBFS shall have
entered such amendments and agreements in its computer system (which MLBFS
agrees to do promptly after the receipt of such executed duplicate copy).
Notwithstanding the foregoing, if for any reason other than the sole fault of
MLBFS the Effective Date shall not occur within 14 days from the date of this
Letter Agreement, then all of said amendments and agreements herein will, at
the sole option of MLBFS, be void.
Very truly yours,
XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC.
By: /s/ XXXXXX XXX XXXXXXX
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Xxxxxx Xxx Xxxxxxx
Credit Analyst
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Alta Software, Inc.
June 1, 1998
Page 3
Accepted:
ALTA SOFTWARE, INC.
By: /s/ XXXX X. XXXX
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Printed Name: Xxxx X. Xxxx
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Title: CFO and President
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Approved:
/s/ XXXX X. XXXXXXX
------------------------------------------------------------
XXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXXXX, XX.
------------------------------------------------------------
XXXXXX X. XXXXXXXXX, XX.
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Xxxxxxx Xxxxx No. 795-07601
SECURITY AGREEMENT
SECURITY AGREEMENT ("Agreement") dated as of June 1, 1998, between ALTA
SOFTWARE, INC., a corporation organized and existing under the laws of the
State of Virginia having its principal office at 00000 Xxxxxx Xxxxx Xx., Xxxxx
000X, Xxxxxx, XX 00000 ("Customer'), and XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC., a corporation organized and existing under the laws of the State
of Delaware having its principal office at 00 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX
00000 ("MLBFS").
In order to induce MLBFS to extend or continue to extend credit to Customer,
under the Loan Agreement (as defined below) or otherwise, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Customer hereby agrees with MLBFS as follows:
1. DEFINITIONS
(a) SPECIFIC TERMS. In addition to terms defined elsewhere in this Agreement,
when used herein the following terms shall have the following meanings:
(i) "Account Debtor" shall mean any party who is or may become obligated with
respect to an Account or Chattel Paper.
(ii) "Bankruptcy Event" shall mean any of the following: (A) a proceeding
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt or receivership law or statute shall be filed or consented to by Customer;
or (B) any such proceeding shall be filed against Customer and shall not be
dismissed or withdrawn within sixty (60) days after filing; or (C) Customer
shall make a general assignment for the benefit of creditors; or (D) Customer
shall generally fail to pay or admit in writing its inability to pay its debts
as they become due; or (E) Customer shall be adjudicated a bankrupt or
insolvent.
(iii) "Business Day" shall mean any day other than a Saturday, Sunday, federal
holiday or other day on which the New York Stock Exchange is regularly closed.
(iv) "Collateral" shall mean all Accounts, Chattel Paper, Contract Rights,
Inventory, Equipment, Fixtures, General Intangibles, Deposit Accounts,
Documents and Instruments of Customer, howsoever arising, whether now owned or
existing or hereafter acquired or arising, and wherever located; together with
all parts thereof (including spare parts), all accessories and accessions
thereto, all books and records (including computer records) directly related
thereto, all proceeds thereof (including, without limitation, proceeds in the
form of Accounts and insurance proceeds), and the additional collateral
described in Section 7 (b) hereof.
(v) "Default" shall mean an "Event of Default", as defined in Section 6 hereof,
or any event which with the giving of notice, passage of time, or both, would
constitute such an Event of Default.
(vi) "Loan Agreement" shall mean that certain WCMA NOTE, LOAN AND SECURITY
AGREEMENT NO. 795-07601 between Customer and MLBFS, as the same may from time
to time be or have been amended, restated, extended or supplemented.
(vii) "Location of Tangible Collateral" shall mean the address of Customer set
forth at the beginning of this Agreement, together with any other address or
addresses set forth on any exhibit hereto as being a Location of Tangible
Collateral.
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(viii) "Obligations" shall mean all liabilities, indebtedness and other
obligations of Customer to MLBFS, howsoever created, arising or evidenced,
whether now existing or hereafter arising, whether direct or indirect, absolute
or contingent, due or to become due, primarily or secondary or joint or
several, and, without limiting the foregoing, shall include interest accruing
after the filing of any petition in bankruptcy, and all present and future
liabilities, indebtedness and obligations of Customer under the Loan Agreement
and the agreements, instruments and documents executed pursuant thereto, and
under this Agreement.
(ix) "Permitted Liens" shall mean with respect to the Collateral: (A) liens
for current taxes not delinquent, other non-consensual liens arising in the
ordinary course of business for sums not due, and, if MLBFS' rights to and
interest in the Collateral are not materially and adversely affected thereby,
any such liens for taxes or other non-consensual liens arising in the ordinary
course of business being contested in good faith by appropriate proceedings;
(B) liens in favor of MLBFS; and (C) any other liens expressly permitted in
writing by MLBFS.
(b) OTHER TERMS. Except as otherwise defined herein, all terms used in this
Agreement which are defined in the Uniform Commercial Code of Illinois ("UCC")
shall have the meanings set forth in the UCC.
2. COLLATERAL
(a) PLEDGE OF COLLATERAL. To secure payment and performance of the
Obligations, Customer hereby pledges, assigns, transfers and sets over to
MLBFS, and grants to MLBFS a first lien and security interest in and upon all
of the Collateral, subject only to Permitted Liens.
(b) LIENS. Except upon the prior written consent of MLBFS, Customer shall not
create or permit to exist any lien, encumbrance or security interest upon or
with respect to any Collateral now owned or hereafter acquired other than
Permitted Liens.
(c) PERFORMANCE OF OBLIGATIONS. Customer shall perform all of its obligations
owing on account of or with respect to the Collateral; it being understood that
nothing herein, and no action or inaction by MLBFS, under this Agreement or
otherwise, shall be deemed an assumption by MLBFS of any of Customer's said
obligations.
(d) NOTICE OF CERTAIN EVENTS. Customer shall give MLBFS immediate notice of
any attachment, lien, judicial process, encumbrance or claim affecting or
involving $25,000.00 or more of the Collateral.
(e) INDEMNIFICATION. Customer shall indemnify, defend and save MLBFS harmless
from and against any and all claims, losses, costs, expenses (including,
without limitation, reasonable attorneys' fees and expenses), demands,
liabilities, penalties, fines and forfeitures of any nature whatsoever which
may be asserted against or incurred by MLBFS arising out of or in any manner
occasioned by (i) the ownership, use, operation, condition or maintenance of
any Collateral, or (ii) any failure by Customer to perform any of its
obligations hereunder; excluding, however, from said indemnity any such claims,
losses, etc., arising out of the willful wrongful act or active gross
negligence of MLBFS. This indemnity shall survive the expiration or
termination of this Agreement as to all matters arising or accruing prior to
such expiration or termination.
(f) INSURANCE. Customer shall insure all of the tangible Collateral with an
insurer or insurers reasonably acceptable to MLBFS, under a policy or policies
of physical damage insurance reasonably acceptable to MLBFS providing that (i)
losses will be payable to MLBFS as its interests may appear pursuant to a
Lender's Loss Payable endorsement, and (ii) MLBFS will receive not less than 10
days prior written notice of any cancellation; and containing such other
provisions as may be reasonably required by MLBFS. Customer shall maintain
such other insurance as may be required by law or otherwise reasonably required
by MLBFS. Customer shall furnish MLBFS with a copy or certificate of each such
policy or policies and, prior to any expiration or cancellation, each renewal
or replacement thereof.
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(g) EVENT OF LOSS. Customer shall at its expense promptly repair all
repairable damage to any tangible Collateral. In the event that any tangible
Collateral is damaged beyond repair, lost, totally destroyed or confiscated (an
"Event of Loss") and such Collateral had a value prior to such Event of Loss of
$25,000.00 or more, then, on or before the first to occur of (i) 90 days after
the occurrence of such Event of Loss, or (ii) 10 Business Days after the date
on which either Customer or MLBFS shall receive any proceeds of insurance on
account of such Event of Loss, or any underwriter of insurance on such tangible
Collateral shall advise either Customer or MLBFS that it disclaims liability in
respect of such Event of Loss, Customer shall, at Customer's option, either
replace the Collateral subject to such Event of Loss with comparable Collateral
free of all liens other than Permitted Liens (in which event Customer shall be
entitled to utilize the proceeds of insurance on account of such Event of Loss
for such purpose, and may retain any excess proceeds of such insurance), or pay
to MLBFS on account of the Obligations an amount equal to the actual cash value
of such Collateral as determined by either the applicable insurance company's
payment (plus any applicable deductible) or, in absence of insurance company
payment, as reasonably determined by MLBFS. Notwithstanding the foregoing, if
at the time of occurrence of such Event of Loss or any time thereafter prior to
replacement or payment, as aforesaid, an Event of Default shall have occurred
and be continuing hereunder, then MLBFS may at its sole option, exercisable at
any time while such Event of Default shall be continuing, require Customer to
either replace such Collateral or make a payment on account of the Obligations,
as aforesaid.
(h) SALES AND COLLECTIONS. So long as no Event of Default shall have occurred
and be continuing, Customer may in the ordinary course of its business: (i)
sell any Inventory normally held by Customer for sale, (ii) use or consume any
materials and supplies normally held by Customer for use or consumption, and
(iii) collect all of its Accounts. Customer shall take such action with
respect to protection of its Inventory and the other Collateral and the
collection of its Accounts as MLBFS may from time to time reasonably request.
(i) ACCOUNT SCHEDULES. Upon the request of MLBFS, made now or at any time or
times hereafter, Customer shall deliver to MLBFS, in addition to the other
information required hereunder, a schedule identifying, for each Account and
all Chattel Paper subject to MLBFS' security interests hereunder, each Account
Debtor by name and address and amount, invoice number and date of each invoice.
Customer shall furnish to MLBFS such additional information with respect to the
Collateral, and amounts received by Customer as proceeds of any of the
Collateral, as MLBFS may from time to time reasonably request.
(j) LOCATION. Except for movements in the ordinary course of its business,
Customer shall give MLBFS 30 days' prior written notice of the placing at or
movement of any tangible Collateral to any location other than a Location of
Tangible Collateral. In no event shall Customer cause or permit any tangible
Collateral to be removed from the United States without the express prior
written consent of MLBFS.
(k) ALTERATIONS AND MAINTENANCE. Except upon the prior written consent of
MLBFS, Customer shall not make or permit any material alterations to any
tangible Collateral which might materially reduce or impair its market value or
utility. Customer shall at all times keep the tangible Collateral in good
condition and repair and shall pay or cause to be paid all obligations arising
from the repair and maintenance of such Collateral, as well as all obligations
with respect to each Location of Tangible Collateral, except for any such
obligations being contested by Customer in good faith by appropriate
proceedings.
3. REPRESENTATIONS AND WARRANTIES
Customer represents and warrants to MLBFS that:
(a) CUSTOMER. Customer is a corporation, duly organized and validly existing
in good standing under the laws of the State of Virginia and is qualified to do
business and in good standing in each other state where the nature of its
business or the property owned by it make such qualification necessary.
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(b) EXECUTION, DELIVERY AND PERFORMANCE. The execution, delivery and
performance by Customer of this Agreement have been duly authorized by all
requisite action, do not and will not violate or conflict with any law or other
governmental requirement, or any of the agreements, instruments or documents
which formed or governed Customer, and do not and will not breach or violate
any of the provisions of, and will not result in a default by Customer under,
any other agreement, instrument or document to which it is a party or by which
it or its properties are bound.
(c) NOTICE OR CONSENT. Except as may have been given or obtained, no notice to
or consent or approval of any governmental body or authority or other third
party whatsoever (including, without limitation, any other creditor) is
required in connection with the execution, delivery or performance by Customer
of this Agreement.
(d) VALID AND BINDING. This Agreement is the legal, valid and binding
obligation of Customer, enforceable against it in accordance with its terms,
except as enforceability may be limited by bankruptcy and other similar laws
affecting the rights of creditors generally or by general principles of equity.
(e) FINANCIAL STATEMENTS. Except as expressly set forth in Customer's
financial statements, all financial statements of Customer furnished to MLBFS
have been prepared in conformity with generally accepted accounting principles,
consistently applied, are true and correct, and fairly present the financial
condition of it as at such dates and the results of its operations for the
periods then ended; and since the most recent date covered by such financial
statements, there has been no material adverse change in any such financial
condition or operation.
(f) LITIGATION, ETC. No litigation, arbitration, administrative or
governmental proceedings are pending or threatened against Customer, which
would, if adversely determined, materially and adversely affect the financial
condition or continued operations of Customer, or the liens and security
interests of MLBFS hereunder.
(g) TAXES. All federal, state and local tax returns, reports and statements
required to be filed by Customer have been filed with the appropriate
governmental agencies and all taxes due and payable by Customer have been
timely paid (except to the extent that any such failure to file or pay will not
materially and adversely affect either the liens and security interests of
MLBFS hereunder or the financial condition or continued operations of
Customer).
(h) COLLATERAL. Customer has good and marketable title to the Collateral, and,
except for any Permitted Liens: (i) none of the Collateral is subject to any
lien, encumbrance or security interest, and (ii) upon the filing of all Uniform
Commercial Code financing statements executed by Customer with respect to the
Collateral or a copy of this Agreement in the appropriate jurisdiction(s)
and/or the completion of any other action required by applicable law to perfect
is lien and security interests, MLBFS will have valid and perfected first liens
and security interests upon all of the Collateral.
Each of the foregoing representations and warranties has been and will be
relied upon as an inducement to MLBFS to advance funds or extend or continue to
extend credit to Customer, and is continuing and shall be deemed remade by
Customer concurrently with each such advance or extension of credit by MLBFS to
Customer.
4. FINANCIAL AND OTHER INFORMATION
Customer covenants and agrees that Customer will furnish or cause to be
furnished to MLBFS during the term of this Agreement such financial and other
information as may be required by the Loan Agreement or any other document
evidencing the Obligations or as MLBFS may from time to time reasonably request
relating to Customer or the Collateral.
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5. OTHER COVENANTS
Customer further agrees during the term of this Agreement that:
(a) FINANCIAL RECORDS; INSPECTION. Customer will: (i) maintain complete and
accurate books and records at its principal place of business, and maintain all
of its financial records in a manner consistent with the financial statements
heretofore furnished to MLBFS, or prepared on such other basis as may be
approved in writing by MLBFS; and (ii) permit MLBFS or its duly authorized
representatives, upon reasonable notice and at reasonable times, to inspect its
properties (both real and personal), operations, books and records.
(b) TAXES. Customer will pay when due all taxes, assessments and other
governmental charges, howsoever designated, and all other liabilities and
obligations, except to the extent that any such failure to pay will not
materially and adversely affect either the liens and security interests of
MLBFS hereunder, or the financial condition or continued operations of
Customer.
(c) COMPLIANCE WITH LAWS AND AGREEMENTS. Customer will not violate any law,
regulation or other governmental requirement, any judgment or order of any
court or governmental agency or authority, or any agreement, instrument or
document to which it is a party or by which it is bound, if any such violation
will materially and adversely affect either the liens and security interests of
MLBFS hereunder, or the financial condition or continued operations of
Customer.
(d) NOTIFICATION BY CUSTOMER. Customer shall provide MLBFS with prompt written
notification of: (i) any Default; (ii) any materially adverse change in the
business, financial condition or operations of Customer; and (iii) any
information which indicates that any financial statements of Customer fail in
any material respect to present fairly the financial condition and results of
operations purported to be presented in such statements. Each notification by
Customer pursuant hereto shall specify the event or information causing such
notification, and, to the extent applicable, shall specify the steps being
taken to rectify or remedy such event or information.
(e) NOTICE OF CHANGE. Customer shall give MLBFS not less than 30 days prior
written notice of any change in the name (including any fictitious name) or
principal place of business of Customer.
(f) CONTINUITY. Except upon the prior written consent of MLBFS, which consent
will not be unreasonably withheld: (i) Customer shall not be a party to any
merger or consolidation with, or purchase or otherwise acquire all or
substantially all of the assets of, or any material stock, partnership, joint
venture or other equity interest in, any person or entity, or sell, transfer or
lease all or any substantial part of its assets, if any such action would
result in either: (A) a material change in the principal business, ownership
or control of Customer, or (B) a material adverse change in the financial
condition or operations of Customer; (ii) Customer shall preserve its existence
and good standing in the jurisdiction(s) of establishment and operation, (iii)
Customer shall not engage in any material business substantially different from
its business in effect as of the date of application by Customer for credit
from MLBFS, or cease operating any such material business; (iv) Customer shall
not cause or permit any other person or entity to assume or succeed to any
material business or operations of Customer; and (iv) Customer shall not cause
or permit any material change in its controlling ownership.
6. EVENTS OF DEFAULT
The occurrence of any of the following events shall constitute an "Event of
Default" under this Agreement:
(a) DEFAULT UNDER LOAN AGREEMENT. An Event of Default shall occur under the
terms of the Loan Agreement.
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(b) FAILURE TO PERFORM. Customer shall default in the performance or
observance of any covenant or agreement on its part to be performed or observed
under this Agreement (not constituting an Event of Default under any other
clause of this Section), and such default shall continue unremedied for 10
Business Days after written notice thereof shall have been given by MLBFS to
Customer.
(c) BREACH OF WARRANTY. Any representation or warranty made by Customer
contained in this Agreement shall at any time prove to have been incorrect in
any material respect when made.
(d) DEFAULT UNDER OTHER AGREEMENT. A default or Event of Default by Customer
shall occur under the terms of any other agreement, instrument or document with
or intended for the benefit of MLBFS, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S") or any of their affiliates, and any required notice
shall have been given and required passage of time shall have elapsed.
(e) SEIZURE OR ABUSE OF COLLATERAL. The Collateral, or any material part
thereof, shall be or become subject to any levy, attachment, seizure or
confiscation which is not released within 10 Business Days.
(f) BANKRUPTCY EVENT. Any Bankruptcy Event shall occur.
(g) MATERIAL IMPAIRMENT. Any event shall occur which shall reasonably cause
MLBFS to in good faith believe that the prospect of payment or performance by
Customer has been materially impaired.
(h) ACCELERATION OF DEBT TO OTHER CREDITORS. Any event shall occur which
results in the acceleration of the maturity of any indebtedness of $100,000.00
or more of Customer to another creditor under any indenture, agreement,
undertaking, or otherwise.
7. REMEDIES
(a) REMEDIES UPON DEFAULT. Upon the occurrence and during the continuance of
any Event of Default, MLBFS may at its sole option do any one or more or all of
the following, at such time and in such order as MLBFS may in its sole
discretion choose:
(i) ACCELERATION. MLBFS may declare all Obligations to be forthwith due and
payable, whereupon all such amounts shall be immediately due and payable,
without presentment, demand for payment, protest and notice of protest, notice
of dishonor, notice of acceleration, notice of intent to accelerate or other
notice or formality of any kind, all of which are hereby expressly waived;
provided, however, that upon the occurrence of any Bankruptcy Event all
Obligations shall automatically become due and payable without any action on
the part of MLBFS.
(ii) EXERCISE RIGHTS OF SECURED PARTY. MLBFS may exercise any or all of the
remedies of a secured party under applicable law, including, but not limited
to, the UCC, and any or all of its other rights and remedies under this
Agreement.
(iii) POSSESSION. MLBFS may require Customer to make the Collateral and the
records pertaining to the Collateral available to MLBFS at a place designated
by MLBFS which is reasonably convenient to Customer, or may take possession of
the Collateral and the records pertaining to the Collateral without the use of
any judicial process and without any prior notice to Customer.
(iv) SALE. MLBFS may sell any or all of the Collateral at public or private
sale upon such terms and conditions as MLBFS may reasonably deem proper, and
MLBFS may purchase any Collateral at any such public sale; and the net proceeds
of any such public or private sale and all other amounts actually collected or
received by MLBFS pursuant hereto, after deducting all costs and expenses
incurred at any time in the collection of the Obligations and in the
protection, collection and sale of the Collateral, will be applied to the
payment of the Obligations, with any remaining proceeds paid to Customer or
whoever else
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may be entitled thereto, and with Customer and each guarantor of Customer's
obligations remaining jointly and severally liable for any amount remaining
unpaid after such application.
(v) DELIVERY OF CASH, CHECKS, ETC. MLBFS may require Customer to forthwith upon
receipt, transmit and deliver to MLBFS in the form received, all cash, checks,
drafts and other instruments for the payment of money (properly endorsed, where
required, so that such items may be collected by MLBFS) which may be received
by Customer at any time in full or partial payment of any Collateral, and
require that Customer not commingle any such items which may be so received by
Customer with any other of its funds or property but instead hold them separate
and apart and in trust for MLBFS until delivery is made to MLBFS.
(vi) NOTIFICATION OF ACCOUNT DEBTORS. MLBFS may notify any Account Debtor that
its Account or Chattel Paper has been assigned to MLBFS and direct such Account
Debtor to make payment directly to MLBFS of all amounts due or becoming due
with respect to such Account or Chattel Paper; and MLBFS may enforce payment
and collect, by legal proceedings or otherwise, such Account or Chattel Paper.
(vii) CONTROL OF COLLATERAL. MLBFS may otherwise take control in any lawful
manner of any cash or non-cash items of payment or proceeds of Collateral and
of any rejected, returned, stopped in transit or repossessed goods included in
the Collateral and endorse Customer name on any item of payment on or proceeds
of the Collateral, and, in connection therewith, MLBFS may notify the postal
authorities to change the address for delivery of mail addressed to Customer to
such address as MLBFS may designate.
(b) SET-OFF. MLBFS shall have the further right upon the occurrence and during
the continuance of an Event of Default to set-off, appropriate and apply toward
payment of any of the Obligations, in such order of application as MLBFS may
from time to time and at any time elect, any cash, credits, deposits, accounts,
securities and any other property of Customer which is in transit to or in the
possession, custody or control of MLBFS, MLPF&S or any agent, bailee, or
affiliate of MLBFS or MLPF&S, including, without limitation, all securities
accounts with MLPF&S and all cash and securities and other financial assets
therein or controlled thereby, and all proceeds thereof. Customer hereby
collaterally assigns and grants to MLBFS a security interest in all such
property as additional Collateral.
(c) POWER OF ATTORNEY. Effective upon the occurrence and during the
continuance of an Event of Default, Customer hereby irrevocably appoints MLBFS
as its attorney-in-fact, with full power of substitution, in its place and
stead and in its name or in the name of MLBFS, to from time to time in MLBFS'
sole discretion take any action and to execute any instrument which MLBFS may
deem necessary or advisable to accomplish the purposes of this Agreement,
including, but not limited to, to receive, endorse and collect all checks,
drafts and other instruments for the payment of money made payable to Customer
included in the Collateral.
(d) REMEDIES ARE SEVERABLE AND CUMULATIVE. All rights and remedies of MLBFS
herein are severable and cumulative and in addition to all other rights and
remedies available at law or in equity, and any one or more of such rights and
remedies may be exercised simultaneously or successively. Any notice required
under this Agreement or under applicable law shall be deemed reasonably and
properly given to Customer if given at the address and by any of the methods of
giving notice set forth in this Agreement at least 5 Business Days before
taking any action specified in such notice.
(e) NOTICES. To the fullest extent permitted by applicable law, Customer
hereby irrevocably waives and releases MLBFS of and from any and all
liabilities and penalties for failure of MLBFS to comply with any statutory or
other requirement imposed upon MLBFS relating to notices of sale, holding of
sale or reporting of any sale, and Customer waives all rights of redemption or
reinstatement from any such sale. MLBFS shall have the right to postpone or
adjourn any sale or other disposition of Collateral at any time without giving
notice of any such postponed or adjourned date. In the event MLBFS seeks to
take possession of any or all of the Collateral by court process, Customer
further irrevocably waives to the fullest extent permitted by law any bonds and
any surety or security relating thereto required by any statute, court rule
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or otherwise as an incident to such possession, and any demand for possession
prior to the commencement of any suit or action.
8. MISCELLANEOUS
(a) NON-WAIVER. No failure or delay on the part of MLBFS in exercising any
right, power or remedy pursuant to this Agreement shall operate as a waiver
thereof, and no single or partial exercise of any such right, power or remedy
shall preclude any other or further exercise thereof, or the exercise of any
other right, power or remedy. Neither any waiver of any provision of this
Agreement, nor any consent to any departure by Customer therefrom, shall be
effective unless the same shall be in writing and signed by MLBFS. Any waiver
of any provision of this Agreement and any consent to any departure by Customer
from the terms of this Agreement shall be effective only in the specific
instance and for the specific purpose for which given. Except as otherwise
expressly provided herein, no notice to or demand on Customer shall in any case
entitle Customer to any other or further notice or demand in similar or other
circumstances.
(b) COMMUNICATIONS. All notices and other communications required or permitted
hereunder shall be in writing, and shall be either delivered personally, mailed
by postage prepaid certified mail or sent by express overnight courier or by
facsimile. Such notices and communications shall be deemed to be given on the
date of personal delivery, facsimile transmission or actual delivery of
certified mail, or one Business Day after delivery to an express overnight
courier. Unless otherwise specified in a notice sent or delivered in
accordance with the terms hereof, notices and other communications in writing
shall be given to the parties hereto at their respective addresses set forth at
the beginning of this Agreement, and, in the case of facsimile transmission, to
the parties at their respective regular facsimile telephone number.
(c) COSTS, EXPENSES AND TAXES. Customer shall pay or reimburse MLBFS upon
demand for: (i) all Uniform Commercial Code filing and search fees and
expenses incurred by MLBFS in connection with the verification, perfection or
preservation of MLBFS' rights hereunder or in the Collateral; (ii) any and all
stamp, transfer and other taxes and fees payable or determined to be payable in
connection with the execution, delivery and/or recording of this Agreement; and
(iii) all reasonable fees and out-of-pocket expenses (including, but not
limited to, reasonable fees and expenses of outside counsel) incurred by MLBFS
in connection with the enforcement of this Agreement or the protection of
MLBFS' rights hereunder, excluding, however, salaries and expenses of MLBFS'
employees. The obligations of Customer under this paragraph shall survive the
expiration or termination of this Agreement and the discharge of the other
Obligations.
(d) RIGHT TO PERFORM OBLIGATIONS. If Customer shall fail to do any act or
thing which it has covenanted to do under this Agreement or any representation
or warranty on the part of Customer contained in this Agreement shall be
breached, MLBFS may, in its sole discretion, after 5 Business Days written
notice is sent to Customer (or such lesser notice, including no notice, as is
reasonable under the circumstances), do the same or cause it to be done or
remedy any such breach, and may expend its funds for such purpose. Any and all
reasonable amounts so expended by MLBFS shall be repayable to MLBFS by Customer
upon demand, with interest at the "Interest Rate" (as that term is defined in
the Loan Agreement or any document incorporated into the Loan Agreement) during
the period from and including the date funds are so expended by MLBFS to the
date of repayment, and any such amounts due and owing MLBFS shall be additional
Obligations. The payment or performance by MLBFS of any of Customer's
obligations hereunder shall not relieve Customer of said obligations or of the
consequences of having failed to pay or perform the same, and shall not waive
or be deemed a cure of any Default.
(e) FURTHER ASSURANCES. Customer agrees to do such further acts and things and
to execute and deliver to MLBFS such additional agreements, instruments and
documents as MLBFS may reasonably require or deem advisable to effectuate the
purposes of this Agreement, or to establish, perfect and maintain MLBFS'
security interests and liens upon the Collateral, including, but not limited
to: (i) executing financing statements or amendments thereto when and as
reasonably requested by MLBFS; and (ii) if in
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the reasonable judgment of MLBFS it is required by local law, causing the
owners and/or mortgagees of the real property on which any Collateral may be
located to execute and deliver to MLBFS waivers or subordinations reasonably
satisfactory to MLBFS with respect to any rights in such Collateral.
(f) BINDING EFFECT. This Agreement shall be binding upon Customer and its
successors and assigns, and shall inure to the benefit of MLBFS and its
successors and assigns.
(g) HEADINGS. Captions and section and paragraph headings in this Agreement
are inserted only as a matter of convenience, and shall not affect the
interpretation hereof.
(h) GOVERNING LAW. This Agreement shall be governed in all respects by the
laws of the State of Illinois.
(i) SEVERABILITY OF PROVISIONS. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
(j) TERM. This Agreement shall become effective upon acceptance by MLBFS, and,
subject to the terms hereof, shall continue in effect so long thereafter as
either MLBFS shall be committed to advance funds or extend credit to Customer
or there shall be any Obligations outstanding.
(k) COUNTERPARTS. This Agreement may be executed in one or more counterparts
which, when taken together, constitute one and the same agreement.
(l) JURISDICTION; WAIVER. CUSTOMER ACKNOWLEDGES THAT THIS AGREEMENT IS BEING
ACCEPTED BY MLBFS IN PARTIAL CONSIDERATION OF MLBFS' RIGHT AND OPTION, IN ITS
SOLE DISCRETION, TO ENFORCE THIS AGREEMENT IN EITHER THE STATE OF ILLINOIS OR
IN ANY OTHER JURISDICTION WHERE CUSTOMER OR ANY COLLATERAL FOR THE OBLIGATIONS
MAY BE LOCATED. CUSTOMER CONSENTS TO JURISDICTION IN THE STATE OF ILLINOIS AND
VENUE IN ANY STATE OR FEDERAL COURT IN THE COUNTY OF XXXX FOR SUCH PURPOSES,
AND CUSTOMER WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE.
CUSTOMER FURTHER WAIVES ANY RIGHTS TO COMMENCE ANY ACTION AGAINST MLBFS IN ANY
JURISDICTION EXCEPT IN THE COUNTY OF XXXX AND STATE OF ILLINOIS, MLBFS AND
CUSTOMER HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST
THE OTHER PARTY WITH RESPECT TO ANY MATTER RELATING TO, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE LOAN AGREEMENT, THIS AGREEMENT AND/OR ANY OF THE
TRANSACTIONS WHICH ARE THE SUBJECT MATTER OF THE LOAN AGREEMENT OR THIS
AGREEMENT.
(m) INTEGRATION. THIS WRITTEN AGREEMENT CONSTITUTES THE ENTIRE UNDERSTANDING
AND REPRESENTS THE FULL AND FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR
WRITTEN AGREEMENTS OR PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. NO
AMENDMENT OR MODIFICATION OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS IN A
WRITING SIGNED BY BOTH MLBFS AND CUSTOMER.
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IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
ALTA SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx /s/ Xxxx X. Xxxx
-------------------------------------------------------------------------------------------
Signature (1) Signature (2)
By: Xxxxxx X. Xxxxxxxxx Xxxx X. Xxxx
-------------------------------------------------------------------------------------------
Printed Name Printed Name
By: CEO and President CFO and Treasurer
-------------------------------------------------------------------------------------------
Title Title
Accepted at Chicago, Illinois:
XXXXXXX XXXXX BUSINESS FINANCIAL
SERVICES INC.
By:
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