Exhibit 10.19(m)
IMPERIAL BANK
AGREEMENT FOR PURCHASE OF RECEIVABLE
(Full Recourse)
THIS AGREEMENT is made on November 18, 1997 by and between Ophthalmic
Imaging Systems having its principal place of business at 000 Xxxxxxx Xxx,
Xxxxx X, Xxxxxxxxxx, XX 00000, County of Xxxxxxxxxx, Xxxxx xx XX, 00000,
(the "Seller") and Financial Accounts Management Services, a division of
Imperial Bank, having a place of business at 000 Xxxxxxx Xxxxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000 (the "Purchaser").
1. DEFINITIONS. The following terms shall have the meanings stated:
1.1 "ACCOUNT BALANCE" - on any given day, the gross amount of all
Purchased Receivable and other Obligations unpaid on that day.
1.2 "ACCOUNT DEBTOR" - the Obligor on a Purchased Receivable.
1.3 "ADJUSTMENTS" - all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments asserted by or on behalf of any Account
Debtor with respect to any Purchased Receivable.
1.4 "ADVANCE" - the dollar amount computed with respect to each
Purchased Receivable, equal to the Advance Rate multiplied by the face
amount of the Purchased Receivable.
1.5 "ADVANCE RATE" - 80%
1.6 "COLLATERAL" -
1.6.1 All now owned and hereafter acquired right title and
interest in, to and in respect of all accounts, interests in goods
represented by accounts, returned, reclaimed or repossessed goods with
respect thereto and rights as an unpaid vendor; contract rights; chattel
paper; general intangibles (including but not limited to, tax refunds,
registered and unregistered patents, trademarks, service marks, copyrights,
trade names, applications for the foregoing, trade secrets, goodwill,
customer lists, licenses, whether as licenser or licensee, chooses in
action and other claims, and existing and future leasehold interests in
equipment, real estate and fixtures); documents; instruments; letters of
credit, bankers' acceptances or guaranties; deposits, securities, bank
accounts, deposit accounts, credits and other property now or hereafter
held in any capacity by Purchaser, or its affiliates;
1.6.2 All now owned and hereafter acquired right, title and
interest in, to and in respect of all goods, including but not limited to:
1.6.2.1 All inventory, wherever located, whether no owned
or hereafter acquired, of whatever kind, nature or description, including
all raw materials, work-in-process, finished goods;
1.6.2.2 All equipment and fixtures, wherever located,
whether now owned or hereafter acquired, and any and all additions,
substitutions, replacements (including spare parts), and accessions thereof
and thereto;
1.6.2.3 All present and future books and records relating
to any of the above including, without limitation, all computer programs,
printed output and computer readable data in the possession or control of
the Seller, any computer service bureau or other third party;
1.6.2.4 All products and proceeds of the foregoing in
whatever form and wherever located, including, without limitation, all
insurance proceeds, all claims against third parties for loss or
destruction of or damage to any of the foregoing, and all income from the
lease or rental of any of the foregoing.
1.7 "CUSTOMER PAYMENTS" - all good funds received by Purchaser from
or on behalf of an Account Debtor with respect to Purchased Receivables.
1.8 "Face Amount of Purchased Receivables" - the gross amount due
from the Account Debtor, less all discounts allowed to the Account Debtor,
computed on the shortest selling terms stated in the invoice evidencing the
Purchased Account.
1.9 "Factor Fee" - rate of Imperial Bank's Prime Rate plus 4%
calculated on the daily net funds employed.
Insert A
1.10 "Administrative Fee" - rate of 0.5% of the average daily balance
for each monthly period. The minimum monthly fee is $1,200.00.
Insert B
1.11 "Obligations" - all obligations now or hereafter owed by the
Seller to the Purchaser, including but not limited to the obligations
created hereunder.
1.12 "Obligor" - the Seller and all guarantors and other entities who
may be obligated to pay the Obligations.
1.13 "Purchased Receivables" - all those accounts, chattel paper,
instruments, contract rights, documents, general intangibles, and rights to
payment, and proceeds thereof, arising out of the invoices and other
agreements identified on or delivered with any Transmittal Sheet provided
by Seller to Purchaser.
1.14 "Receivables" - all present and future accounts and general
intangibles of the Seller.
Insert C
1.15 "Remittance" - the amount, if any, which Purchaser owes to Seller
at each Settlement Date, according to the accounting prepared by Purchaser
equal to:
1.15.1 The sum of:
1.15.1.1 The Reserve as of the beginning of the last
Settlement Date, Plus
1.15.1.1.1 The Reserve created for each Purchased
Receivable purchase during since last Settlement Date, minus
1.15.2 The total since the last Settlement Date of:
1.15.2.1 The Administrative Fees on paid Purchased
Receivables,
1.15.2.2 Factor Fee on paid Purchased Receivables;
1.15.2.3 Adjustments;
1.15.2.4 Repurchase Amounts (to the extent Purchaser
has agreed to accept payment thereof by deduction from the Remittance); and
1.15.2.5 The Reserve based on the Account Balance as
of the Settlement Date.
1.16 "Repurchase Amount" - see 4.1 below.
1.17 "Reserve" - a percentage of the Account Balance, computed as the
difference between the Face Amount of Purchased Receivables and the
Advance, which shall be determined by Purchaser in its reasonable sole
discretion, based on the nature and quality of the Purchased Receivables,
and which shall not be less than 30% less all fees on unpaid Purchased
Receivables. The Reserve shall be the book balance maintained in the
records of Purchaser and shall not be a segregated fund.
Insert C
1.18 "Settlement Date" - the day that remittance is calculated and
paid.
1.19 "Transmittal Sheet" - the forms supplied by Purchaser to Seller
which identify the receivables of Seller which it requests that Purchaser
purchase.
2. Purchase of Receivables.
2.1 Seller for and in consideration of the Advances and other
valuable consideration, does hereby absolutely sell, assign and transfer to
Purchaser, its successors and assigns, all of Seller's right, title and
interest in and to the Purchased Receivables and all moneys due or which
may become due upon such Purchased Receivables.
2.2 Purchaser is not obligated to purchase any Receivables from
Seller.
2.3 Purchaser may exercise its sole discretion in approving the
credit of each Account Debtor before buying any Receivables.
2.4 Purchaser shall have with respect to the Purchased Receivables,
all the rights and remedies of an unpaid seller under the Uniform
Commercial Code and other applicable law, including the rights of replevin,
claim and delivery, reclamation, and stoppage in transit.
Insert D
3. Terms of Purchase.
3.1 Each Transmittal Sheet shall reasonably identify the Purchased
Receivables, correctly state the amount owed by the Account Debtor, and
shall be signed by an authorized signatory of Seller.
3.2 Seller hereby authorizes Purchaser to insert in the Transmittal
Sheet information to describe the Purchased Receivables.
3.3 Purchaser is entitled to rely on the contents of any Transmittal
Sheet delivered by Seller, to treat the Receivables described therein as
Purchased Receivables, and to rely on the signature as an authorized
signatory of Seller.
3.4 Upon acceptance and purchase by Purchaser of the Receivables
described on each Transmittal Sheet and upon Seller's request, Purchaser
shall pay the Advance to Seller.
3.5 Should Purchaser determine at any time in the reasonable exercise
of its discretion that the nature and quality of the Purchased Receivables
has deteriorated, Purchaser may change the Advance Rate with respect to all
future purchases of Receivables.
Insert E
3.6 As Purchaser collects Customer Payments from or on behalf of
Account Debtors, Purchaser shall promptly credit the Customer Payments to
the Account Balance on a daily basis as funds clear, as determined by
Seller in its reasonable discretion. In the alternative, Purchaser shall
have the right to delay credit to the Account Balance for a fixed number of
days with respect to all Customer Payments, to allow for clearance and
collection of funds.
3.7 If Seller is in default under this Agreement, all Customer
Payments will be applied to any Obligations in such order and manner as
Purchaser shall determine, irrespective of contrary instructions which may
be received from Seller or the payor.
3.8 Purchaser shall charge and be entitled to, and Seller shall pay
on each Settlement Date the Administrative Fee and the Factor Fee on all
paid Purchased Receivables.
3.9 Purchaser shall prepare and send to Seller, after close of
business each month, an accounting of the transactions for that month. The
accounting shall be deemed correct and conclusive, and shall constitute an
account stated between the parties unless Seller makes written objection to
Purchaser within 30 days after mailing of the accounting to the Seller.
3.10 Purchaser shall pay the Remittance to Seller within ten days
after the Settlement Date.
3.11 In the event the calculation of the Remittance results in an
amount due to Purchaser from Seller, Seller shall make such payment in the
same manner as set forth in Section 4.2.
4. Repurchase and Recourse. Purchaser's purchase of Purchased
Receivables from Seller shall be with full recourse.
4.1 Purchaser may increase the Reserve, and Seller agrees to pay to
Purchaser on demand, the full amount or any unpaid portion thereof, of any
Purchased Receivable (the "Repurchase Amount"):
4.1.1 Which remains unpaid ninety (90) calendar days after invoice
date;
4.1.2 Which is owed by an Account Debtor which has filed, or has
had filed against it, any bankruptcy case or insolvency proceeding or who
has become insolvent (as defined in the Federal Bankruptcy Code) or who is
generally not paying its debts as such debts become due;
4.1.3 With respect to which there has been any breach of warranty
set forth in Section 6 hereof or any breach of any covenant contained in
this Agreement; or
4.1.4 With respect to which the account debtor asserts any
discount, allowance, return, dispute, counterclaim, offset, defense, right
of recoupment, right of return, warranty claim, or short payment, together
with all reasonable attorneys' and professional fees and expenses and all
court costs incurred by Purchaser in collecting the Purchased Receivable
and/or enforcing its rights under this Agreement.
4.2 Purchaser may, in its sole discretion, demand that the Repurchase
Amount be paid by Seller (A) in cash immediately upon demand therefor; (B)
by delivery of substitute invoices acceptable to Purchaser which shall
thereupon become Purchased Receivables; or (C) by deduction from the
Remittance which would otherwise be due to Seller, or by any combination of
the foregoing as Purchaser may from time to time choose.
5. Power of Attorney. Seller hereby irrevocably appoints Purchaser and
its successors and assigns as Seller's true and lawful attorney in fact,
with respect to Purchased Receivables and Collateral, (A) to sell, assign,
transfer, pledge, compromise, or discharge the whole or any part of such
Receivables; (B) to demand, collect, receive, xxx and give releases for
moneys due or which may become due upon such receivables and to compromise,
prosecute, or defend any action, claim, case, or proceeding relating to
such Receivables, including the filing of a claim or the voting of such
claims in any bankruptcy case, all in Purchaser's name or Seller's name, as
Purchaser may choose; (C) to prepare, file and sign Seller's name on any
notice, claim, assignment or satisfaction of lien or mechanics' lien or
similar document; (D) to notify all account debtors to pay Purchaser
directly; (E) to receive, open, and dispose of all mail addressed to Seller
for the purpose of collecting such Receivables; (F) to endorse Seller's
name on any checks or other forms of payment on receivables; (G) to sign
Seller's name to any form UCC-1 or other document necessary to perfect any
security interest granted by Seller to Purchaser; (H) to complete, execute
and file any franchise tax return or other documents necessary to qualify
Seller to do business in any state which Purchaser deems necessary to
enforce collection of Receivables, and to pay, on Seller's behalf any taxes
or fees which may be due by Seller in connection therewith (all such fees
and taxes shall be added to the Account Balance) and (I) to do all acts and
things necessary or expedient, in furtherance of any such purpose.
Insert D
Insert F
6. Representations, Warranties & Covenants. To induce Purchaser to
render its services available to Seller, and with full knowledge that the
truth and accuracy of the following are being relied upon by the Purchaser
in determining whether to accept purchase Receivables the Seller
represents, warrants, covenants and agrees, with respect to each
Transmittal Sheet delivered to Purchaser, that:
6.1 The Seller is the absolute owner of each receivable set forth in
each Transmittal Sheet and has full legal right to make said sale,
assignment and transfer thereof;
6.2 The correct amount of each Receivable is as set forth in the
Transmittal Sheet and is not in dispute;
6.3 The payment of each receivable is not contingent upon the
fulfillment of any obligation or contract, past or future, and any and all
obligations required of the Seller have been fulfilled as of the date of
each Transmittal Sheet;
6.4 Each Receivable set forth in a Transmittal Sheet is based on an
actual sale and delivery of goods and/or services actually rendered, is
presently due and owing to Seller, is not past due or in default, has not
been previously sold, assigned, transferred, or pledged, and is free of any
encumbrance or lien except to Purchaser;
6.5 There are no defenses, offsets, or counterclaims against any of
the Receivables, and no agreement has been made under which the Account
Debtor may claim any deduction or discount, except as otherwise stated on
each invoice submitted to Purchaser which is listed on the Transmittal
Sheet;
6.6 Each Purchased Receivable shall be the property of the Purchaser
and shall be paid directly to Purchaser, but if for any reason it should be
paid to Seller, Seller shall promptly notify Purchaser of such payment,
shall hold any checks, drafts, or moneys so received in trust for the
benefit of Purchaser, and shall promptly transfer and deliver the same to
the Purchaser;
6.7 Purchaser shall have the right to endorse, and also the right to
require endorsement by Seller, on all payments received in connection with
each Purchased Receivable and any proceeds of Collateral;
6.8 The Seller, and to Seller's best knowledge, each Account Debtor
set forth in the Transmittal Sheet, are and shall remain solvent as that
term is defined in the Federal Bankruptcy Code;
6.9 Each Account Debtor named in the Transmittal Sheet will not
object to the payment for or the quality or the quantity of the subject
matter of the Receivable and is liable for the amount set forth on the
Transmittal Sheet;
6.10 Each Account Debtor shall be promptly notified after acceptance
by Purchaser that the Purchased Receivable has been transferred to and is
payable to Purchaser, and Seller shall not take or permit any action to
countermand such notification;
6.11 The Seller's place of business, and the place where records
concerning all Receivables herein referred to are kept, is the one set
forth at the beginning of this Agreement, and Seller will promptly advise
Purchaser in writing if such place of business or record keeping is changed
or a new place of business or record keeping is added;
6.12 Seller is not and will not hold any letter of credit or
negotiable instrument as support for or in payment of any Purchased
Receivable, and any such documentation received by Seller will be
immediately turned over to Purchaser, with any necessary assignment or
endorsement;
6.13 Seller will not assign, transfer, sell or grant any lien or
security interest in the Collateral to any other party without Purchaser's
prior written consent; and
6.14 No Account Debtor is affiliated with Seller, either by common
ownership or family relationship.
6.15 All Receivables forwarded to and accepted by Purchaser after the
date hereof, and thereby becoming Purchased Receivables, shall comply with
each and every one of the foregoing representations, warranties, covenants
and agreements referred to above in this section 6.
7. Adjustments. In the event of a breach of any of the representations,
warranties, or covenants set forth in Section 6, or in the event any
Adjustment or dispute is asserted by any Account Debtor, Seller shall
promptly advise Purchaser and shall, subject to the Purchaser's approval,
resolve such disputes and advice Purchaser of any adjustment. Unless
reassigned to Seller, Purchaser shall remain the absolute owner of any
Purchased Receivable, which is subject to Adjustment or Repurchase under
Sections 1.3 or 4 hereof, and any rejected, returned, or recovered personal
property, with the right to take possession thereof at any time. If such
possession is not taken by Purchaser, Seller is to resell it for
Purchaser's account at Seller's expense with the proceeds made payable to
Purchaser. While Seller retains possession of said returned goods, Seller
shall segregate said goods and xxxx them "property of Financial Accounts
Management Services."
Insert F
8. Security Interest
8.1 This Agreement for Purchase of Receivables is the security
agreement referred to in the Transmittal Sheet.
8.2 In order to secure the Obligations Seller hereby grants to
Purchaser a continuing lien upon and security interest in all Seller's now
existing or hereafter arising rights and interest in the Collateral.
8.3 Seller is not authorized to sell, transfer or otherwise convey
any Collateral without Purchaser's consent, except for the sale of finished
goods inventory in the Seller's ordinary course of business. Purchaser
shall have the right, upon default by Seller hereunder, to withdraw its
consent to Seller's sale of finished goods inventory, and Seller agrees
that Purchaser may notify the Account Debtors of this withdrawal of
consent.
8.4 Seller agrees to sign all UCC financing statements required by
and in a form satisfactory to Purchaser.
8.5 Purchaser shall have the right at any time to notify Seller's
Account Debtors of its security interest. Said notification may be in the
form of Exhibit A hereto.
9. Default
9.1 The following shall constitute Events of Default:
9.1.1 Seller fails to pay as when due any Obligations owed to
Purchaser.
9.1.2 There shall be commenced by or against any Obligor any
voluntary or involuntary case under the Federal Bankruptcy Code, or any
assignment for the benefit of creditors, or appointment of a receiver or
custodian for a substantial portion of its assets;
9.1.3 Any Obligor shall become insolvent, in that its debts are
greater than the fair value of its assets, or such entity is generally not
paying its debts as they become due;
9.1.4 Any involuntary lien, levy, garnishment, attachment or the
like is issued against or attaches to the Purchased Receivables or the
Collateral and the same is not released within fifteen (15) days; or
9.1.5 Seller shall breach any covenant, agreement, warranty, or
representation set forth herein, and the same is not cured to Purchaser's
satisfaction within ten (10) days after Purchaser has given Seller written
notice thereof.
9.2 Upon the occurrence of an Event of Default
9.2.1 Without implying the existence of any obligation to
Purchaser to buy receivables, which implication is specifically negated by
the terms hereof, Purchaser may cease buying Receivables;
9.2.2 Purchaser may immediately exercise its rights and remedies
with respect to the Purchased Receivables and the Collateral, as a secured
party under this Agreement, the Uniform Commercial Code, and applicable
law;
9.2.3 Purchaser shall have the rights as set forth in Section 8
hereof.
10. Nonpayment of Obligations. If any Obligation is not paid when due
(including amounts due under section 3.11, Repurchase Amounts due under
section 4, or professional fees and expenses under section 11), such amount
may be added to the Account Balance and shall be subject to the Factor Fee
rate until payment in full.
Insert G
11. Professional Fees. The Seller will pay all reasonable fees and
expenses of attorneys and other professionals that Purchaser incurs in
negotiating, amending, and enforcing this Agreement and protecting or
enforcing its interest in the Purchased Receivables or the Collateral, in
collecting Purchased Receivables, or in the representation of Purchaser in
connection with any bankruptcy case or insolvency proceeding involving
Seller, the Collateral, any Account Debtor, or any Purchased Receivable.
12. Severability and Choice of Law. In the event that any provision of
this Agreement is deemed invalid by reason of law, this Agreement will be
construed as not containing such provision and the remainder of the
Agreement shall remain in full force and effect. This Agreement has been
transmitted by Seller to Purchaser at Purchaser's office in the State of
California and has been executed and accepted by Purchaser in the State of
California. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California without reference to
choice of law.
13. Account Collection Service. In the event that Purchaser requires that
all of Seller's Receivables be paid to Purchaser, subject to Purchaser's
rights in the Collateral, Purchaser agrees to remit the amount of
collections on the Receivables it receives and does not own to Seller after
deducting a handling fee of 0% of such amount received. It is understood
and agreed by Seller that this Section does not impose any affirmative duty
on Purchaser to do any act other than to turn over such amounts. All such
Receivables and collections are Collateral and in the event of Seller's
Default hereunder, Purchaser shall have no duty to remit collections of
Collateral and may apply same to the Obligations until said Default is
cured.
Insert H
14. Term and Termination. The term of this Agreement shall be for one (1)
year from the date hereof, and from year to year thereafter unless
terminated in writing by Purchaser or Seller. Seller and Purchaser each
have the right to terminate at any time provided that there is no
outstanding Account Balance and no fees, charges or other obligations owed
to Purchaser at the time of termination. Any termination of this Agreement
shall not affect Purchaser's security interest in the Collateral and
Purchaser's ownership of the Purchased Receivables, and this Agreement
shall continue to be effective, until all transactions entered into and
Obligations incurred hereunder have been completed and satisfied in full.
IN WITNESS WHEREOF, the Seller has executed this Agreement on the date
and year above written, and the Purchaser has accepted by its authorized
representative.
SELLER: Ophthalmic Imaging Systems
By: XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
ACCEPTED AT SAN JOSE, CALIFORNIA
FINANCIAL ACCOUNTS MANAGEMENT SERVICES,
a division of Imperial Bank
By: XXXX XXXXXX
Xxxx Xxxxxx, President
IMPERIAL BANK
AGREEMENT FOR PURCHASE OF RECEIVABLE
NOVEMBER 18, 1997
Insert A
Section 1.9
"Daily Net Funds Employed" refers to the amount advanced against factored
receivables that remains unpaid.
Insert B
Section 1.10
The "monthly period" is the number of days in the month. The "average
daily balance" is the average amount of unpaid factored invoices
outstanding during the monthly period.
Insert C
Section 1.15 and Section 1.18
It is our understanding that the Purchaser generally pays excess reserves
bi-monthly, on the 1st day and the 15th day of the month, and, if requested
by the Seller and in the sole discretion of the Purchaser, the Purchaser
may pay excess reserves on an as requested basis.
Insert D
Section 3 (inclusive)
Section 6 (inclusive)
For receivables pending installation, the advance rate is reduced to 50%
from 80%. This is subject to all other TERMS OF PURCHASE as outlined in
Section 3 of the Agreement for Purchase of Receivable.
Insert E
Section 3.6
It is our understanding that the Purchaser normally credits the Account
Balance on the date that Purchaser receives payment, with a maximum delay
of 1 day for in-state checks and 3 days for out-of-state checks.
Insert F
Section 6 (inclusive)
Section 8 (inclusive)
It is our understanding that the Purchaser will subordinate its security
position in vendor-financed equipment or inventory exclusive of Accounts
Receivable, provided Seller is not in default.
Reference facsimile dated 11/18/97 (FileName: IMP1118A.DOC) attached
hereto and included as a part hereof.
IMPERIAL BANK
AGREEMENT FOR PURCHASE OF RECEIVABLE
NOVEMBER 18, 1997
(continued)
Insert G
Section 11
All reasonable fees and expenses of attorneys and other professionals will
be paid to the prevailing party.
Insert H
Section 14
There is no pre-payment penalty.
Insert I
Section 15
Insert I has been deleted.
OPHTHALMIC IMAGING SYSTEMS
000 Xxxxxxx Xxx, Xxxxx X
Xxxxxxxxxx, XX 00000 (916) 646-2020
18 November, 1997
VIA FACSIMILE
Xxxx Xxxxxx
Imperial Bank
Financial Accounts Management Services
Dear Xxxx:
This letter is intended to confirm the salient points our conversation
today regarding a third party loaning funds to Ophthalmic Imaging Systems
("OIS" or the "Company"), and the potential ramifications of said
transaction in light of the factoring relationship and related agreements
currently contemplated between the Company and Imperial Bank (the "Bank").
- It is our understanding that Imperial Bank will allow this third party
to loan funds to the Company and the Company will not be in violation
of any agreements in accepting such loans.
- It is the Bank's intention to allow the Company to accept the loan for
use as general working capital for purposes of assisting the Company
in fulfilling its obligations to deliver products to its customers.
- The Bank will subordinate to the third party, receivables specifically
identified in a schedule to be submitted to the Bank by the Company,
the funds received in payment therefore which will be used to repay
the third party in accordance with said schedule.
- The Bank will exclude from its collateral the receivables specifically
identified in said schedule and, with regard to said receivables, will
subordinate to the third party under all circumstances.
If the foregoing accurately reflects our understanding, then please so note
by signing below and returning to my attention via return facsimile.
Thank you again for your flexibility in working with OIS and I look forward
to a continued positive business relationship with Imperial Bank.
Sincerely,
XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
SRV/s
IMPERIAL BANK
BY:
TITLE:
DATE:
While it is Bank's intention "in principle" to agree to a future
subordination of some specific invoices, any future subordination agreement
must in a form that is acceptable to Bank's legal counsel.
(TO BE MAILED ONLY IN THE EVENT OF DEFAULT)
EXHIBIT A
(Letterhead of Financial Accounts Management Services)
(Date)
(Name and Address of Customer)
Re: Ophthalmic Imaging Systems ("Debtor")
Gentlepersons:
Please be advised that the Ophthalmic Imaging Systems has assigned all
its present and future accounts to FAMS. To the extent that you are now
indebted or may in the future become indebted to Debtor on an account, any
payments must be made to FAMS and not to Debtor or any other entity. The
payments should be mailed to us at the above address.
PAYMENTS MADE IN ANY OTHER MANNER MAY EXPOSE YOU TO MULTIPLE LIABILITY.
We also hereby notify you that we have revoked Debtor's right to sell
inventory free and clear of our security interest therein. Consequently,
any inventory of the Debtor (or proceeds thereof) which you receive
subsequent to your receipt of this letter shall be subject to our security
interest therein, and we hereby demand that you turn over any such
inventory and/or proceeds to us at the address set forth above.
This letter may only be revoked by a writing signed by one of our
officers the authenticity of which you have verified by telephone or
facsimile.
Thank you.
Sincerely yours,
Financial Accounts Management Services
By:
Title:
CERTIFICATE OF RESOLUTIONS
I, Xxxxxx X. Xxxxxxxxx, do hereby certify that:
1. I am the duly elected Chief Executive Officer of Ophthalmic Imaging
Systems (the "Corporation").
2. At a meeting of the Board of Directors of the Corporation, duly
convened and held in accordance with the Corporation's By-Laws and the laws
of the state of incorporation, at which a quorum was present and acting
throughout or by unanimous written consent of all the Directors if
permitted by law, the following resolutions were adopted:
RESOLVED that the Corporation be and hereby is authorized to sell the
Corporation's accounts receivable to Financial Accounts Management
Services, a division of Imperial Bank, and to grant to Financial Accounts
Management Services a security interest in the Corporation's personal
property.
RESOLVED FURTHER that the officers of the Corporation be and hereby are
authorized and directed to execute and deliver certain agreements in
connection with the sale of accounts receivable, and the grant of security
interests in the Corporation's personal property to Financial Accounts
Management Services, including, without limitation, Agreement for Purchase
of Accounts, Certification of Officers, Certification of Resolutions,
[other Agreements that might be needed] and UCC Financing Statements.
RESOLVED FURTHER that the following named officers of the Corporation
("Authorized Officers") be, and any of them hereby are, authorized,
empowered, and directed to execute and deliver to Financial Accounts
Management Services on behalf of the Corporation, the agreements listed in
the foregoing resolution, and to do or cause to be done all such acts and
things and make, execute, and deliver or cause to be made, executed and
delivered, on behalf of the Corporation, all such further agreements and
instruments as may be deemed necessary or advisable in order fully
effectuate the purposes and intent of the foregoing resolutions.
XXXXXX X. XXXXXXXXX, CHIEF EXECUTIVE OFFICER
XXXXXXX X. XXXXX, PRESIDENT
(Names of Authorized Officers)
RESOLVED FURTHER that any one of the Corporate Officers shall execute and
deliver to Financial Accounts Management Services a certificate of these
resolutions.
3. The foregoing resolutions have not been modified, amended or rescinded
in any respect and are in full force as of today's date.
IN WITNESS WHEREOF, I have hereunder signed my name on November 18, 1997.
XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
CERTIFICATION OF OFFICERS
The undersigned, being all Officers of Ophthalmic Imaging Systems, a CA
corporation, (the "Corporation") hereby certify to Financial Accounts
Management Services that:
1. The correct name of the Corporation is as set forth in the Articles of
Incorporation.
2. The Corporation was incorporated on 7/14/86 under the laws of the
State of CA and is in good standing under such laws.
3. The chief place of the Corporation, being the place at which the
Corporation maintains its books and records pertaining to accounts,
accounts receivable, contract rights, chattel paper, general intangibles,
instruments, documents, inventory, and equipment, is located at:
000 Xxxxxxx Xxx, Xxxxx X
Xxxxxxxxxx, XX 00000
4. The Corporation has other places of business at the following
addresses:
5. There is no provision in the Certificate of Incorporation, Articles of
Incorporation, or Bylaws of the Corporation, or in the laws of the state of
its incorporation, requiring any vote or consent of shareholders to
authorize the sale of accounts receivable or the grant of security interest
in any assets of the Corporation. Such power is vested exclusively in the
Corporation's Board of Directors.
6. The officers of the Corporation, and their respective titles are as
follows:
CHIEF EXECUTIVE OFFICER: Xxxxxx X. Xxxxxxxxx Other:
VICE PRESIDENT: Other:
SECRETARY: Xxxxxx X. Xxxxxxxxx Other:
Other: Other:
7. Except as indicated in this paragraph 7, each of the officers listed in
paragraph six has signatory powers with respect to all the Corporation's
transactions with Financial Accounts Management Services, a division of
Imperial Bank.
8. The undersigned shall give Imperial Bank Financial Accounts Management
Services prompt written notice of any change or amendment with respect to
any of the foregoing. Until further notice is received by Financial
Accounts Management Services, it shall be entitled to rely upon the
foregoing in all respects.
IN WITNESS WHEREOF, the undersigned have executed this Certification of
Officers on 11/18/97.
XXXXXX X. XXXXXXXXX Other
Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
Vice President Other
XXXXXX X. XXXXXXXXX Other
Xxxxxx X. Xxxxxxxxx
Secretary
SIGNATURE AUTHORIZATION
Date: November 18, 1997
Each person whose specimen signature appears below is hereby authorized and
empowered to transact any and all business with the Financial Accounts
Management Services division of Imperial Bank, San Jose, California, which
the undersigned could in any way transact and is further authorized to
execute, acknowledge and/or deliver on behalf of the undersigned any and
all assignments, documents, instruments and agreements which he may deem
necessary or convenient in transaction of such business of the undersigned.
Signatures and titles are as follows:
Name (print or typewrite) Title Specimen of Signature
XXXXXX X. XXXXXXXXX CEO XXXXXX X. XXXXXXXXX
XXXXXXX X. XXXXX PRESIDENT XXXXXXX X. XXXXX
XXXXXX X. XXXXXXX DIRECTOR OF XXXXXX X. XXXXXXX
FINANCE
Ophthalmic Imaging Systems
By: XXXXXX X. XXXXXXXXX
VALIDITY INDEMNIFICATION
Financial Accounts Management Services (FAMS)
a division of Imperial Bank
000 Xxxxxxx Xxxx.
Xxx Xxxx, Xxxxxxxxxx 00000
Re: Ophthalmic Imaging Systems ("Seller") and Financial Accounts
Management Services ("Purchaser") Agreement for Purchase of Receivables and
related documents ("Agreements") dated 11/18/97.
The undersigned is the CEO of the Seller.
In order to induce Purchaser to purchase accounts receivable from the
Seller, pursuant to the Agreements between Purchaser and Seller, the
undersigned hereby represents and warrants to Purchaser, on behalf of the
Seller, as follows:
1. All Seller accounts which have been or will be reported to Purchaser
by or on behalf of the Seller and in which Purchaser holds a security
interest ("Accounts"), whether such reports are in the form of agings,
borrowing base certificates, collateral reports, transmittals or financial
statements, are genuine and in all respects what they purport to be,
represent bonafied obligations of delivery of merchandise and or services
sold by the Seller (the "Sold Goods/Services") in the ordinary course of
its business and in accordance with and in full and complete performance of
customer's (each, an "Account Debtor") order therefore.
2. All original checks, drafts, notes, letters of credit, acceptances and
other proceeds of the Accounts, received by the Seller, will be held in
trust for Purchaser and will immediately be forwarded to Purchaser upon
receipt, in kind, in accordance with the terms of Agreements.
3. None of the Accounts are or will be the subject of any offsets,
defenses or counterclaims of any nature whatsoever, and Seller will not in
any way impede or interfere with the normal collection and payment of the
Accounts.
4. Seller is presently solvent.
5. The sold Goods/Services are and will be up to the point of sales, the
sole and absolute property of the Seller, and the Accounts and sold
Goods/Services will be free and clear of all liens and security interests,
except your security interest.
6. The due dates of the Accounts will be as reported to Purchaser by or
on behalf of the Seller.
7. Seller will promptly report to Purchaser all disputes, rejections,
returns and resales of sold Goods/Services and all credits allowed by the
Seller upon all accounts.
8. All reports which Purchaser receives from the Seller, including BUT
NOT LIMITED TO those concerning its Accounts and its inventory, will be
true and accurate except for minor inadvertent errors.
9. Seller will not sell its inventory except in the ordinary course of
business.
The undersigned, on behalf of the Seller, hereby indemnifies Purchaser and
holds Purchaser harmless from any direct, indirect, or consequential damage
or loss which Purchaser may sustain as a result of the breach of any
representation or warranty contained herein, (all of which are continuing
and irrevocable for so long as the Seller is indebted to Purchaser), or of
Purchaser's reliance (whether such reliance was reasonable) upon any
misstatement (whether or not intentional), fraud, deceit or criminal act on
the part of any officer, employee, or agent of the Seller, or any costs
(including reasonable attorney's fees and expenses) incurred by Purchaser
in the enforcement of any rights granted Purchaser hereunder. All such
sums will be paid by the undersigned to Purchaser on demand.
Nothing herein contained shall be in any way impaired or affected by any
change in or amendment of any of the Agreements. This indemnification
shall be binding upon the undersigned corporation, its successors and
assigns.
Very truly yours,
INDEMNITOR'S INFORMATION
Name OPHTHALMIC IMAGING SYSTEMS Address 000 Xxxxxxx Xxx,
Xxxxx X
Signature XXXXXX X. XXXXXXXXX Xxxx Xxxxx Xxxxxxxxxx, XX 00000
CEO
Dated Signed November 18, 1997 SS# 00-0000000
It is the sole intent that this indemnification be made by Ophthalmic
Imaging Systems, a corporation, and not by any individual.
IMPERIAL BANK
TRANSMITTAL SHEET
(Schedule A) Trans #
Date Page
Relationship #
Seller Name Ophthalmic Imaging Systems
Account Customer Name Invoice Invoice Purchase Net
Code (Detail if Needed)** Number Date Order # Sale
Special Instructions: This section to be completed by
FAMS.
Gross Total 100%
Reserve %
Detail of Charges/Reason Charges/
for Adjustment: Adjustments
Net Advance
**Please include contact person, Method of Disbursement:
phone number, fax number, and Check #, Account #, Other
address for all new Customers,
or when needed. Include location
for customers with multiple
billing/processing centers.
The undersigned hereby sells and assigns to Financial Accounts Management
Services, a division of Imperial Bank, a security interest in the accounts
listed in the above schedule, monies due and to become due upon the same,
and all merchandise returned or rejected. The undersigned, to the best of
his/her knowledge, represents that the above schedule correctly sets forth
accounts now owing the undersigned for bonafide sales and deliveries of
merchandise and/or service; that there are no offsets or counterclaims of
any nature whatsoever against any of the accounts; that none of said
accounts are past due; that proper entries have been made on the books of
the undersigned disclosing the sale and assignment of such accounts to
Financial Accounts Management Services; that none of said accounts have
been sold or assigned to any other party; that said accounts are sold and
assigned pursuant to and in accordance with all the terms and provisions of
the Agreement for Purchase of Receivable executed by Financial Accounts
Management Services and the undersigned relating to advances made by
Financial Accounts Management Services on such accounts and the assignment
thereof; and that all such accounts are eligible accounts as defined in
said Agreement for Purchase of Receivable.
Authorized signer Signature
(LETTERHEAD OF SELLER)
(Please Complete one for all DBA's)
All future advances under the "Agreement for Purchase of Receivable" are
subject to Bank's receipt of an Assignment letter that is acceptable to
Bank.
