EXHIBIT (10)(ix)
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ACCOUNTS RECEIVABLE SECURITY AGREEMENT
DATE: June 14, 2001
BORROWER: Syntellect Inc.,
a Delaware corporation
ADDRESS: 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
BORROWER: Syntellect Interactive Services, Inc.,
a Georgia corporation
ADDRESS: 00000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
FCFC: FIRST COMMUNITY FINANCIAL CORPORATION,
an Arizona corporation
ADDRESS: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Borrowers (collectively, the "Borrower") are desirous of obtaining a
Credit Facility and other financial accommodations from FCFC, and FCFC is
willing to make such Credit Facility available to Borrower on the following
terms and conditions to be secured by the Collateral hereinafter described:
1. Definitions.
1.1 "Accounts" means and includes all of Borrower's presently
existing and hereafter arising accounts, instruments, contract rights,
documents, chattel paper (including security agreements and leases), and all
other forms of obligations owing to Borrower, all guaranties of such Accounts
and other security therefor, the proceeds of such Accounts, all Inventory
returned to or reclaimed by Borrower and the Borrower's Books relating to any of
the foregoing.
1.2 "Agreement" means and includes this Accounts Receivable
Security Agreement, any concurrent or subsequent Rider hereto and any
extensions, supplements, amendments or modifications thereto.
1.3 "Borrower's Books" means and includes all of Borrower's
books and records including but not limited to: all customer lists and lists of
account debtors; all ledgers; records reflecting, summarizing or evidencing
Borrower's assets, accounts, business operations or financial condition;
computer programs, computer discs, computer printouts, and other computer
prepared information and computer equipment of any kind.
1.4 "Collateral" means and includes all of Borrower's existing
and hereafter acquired Accounts, Inventory, money, deposit accounts, and general
intangibles (including tax refunds, and all trademarks and trade names of
Borrower), and any and all other property of Borrower in which FCFC now has or
hereafter receives a security interest or which hereafter come into the
possession, custody or control of FCFC, and the proceeds thereof, including
proceeds of insurance covering the Collateral and the proceeds resulting from
the sale, rental, or other disposition of the Collateral.
1.5 "Credit Facility" shall mean a revolving line of credit
granted by FCFC to Borrower in the amount of $3,000,000.00, in accordance with
the terms and conditions set forth in this Agreement.
1.6 "Eligible Accounts" means Accounts on selling terms of net
30 days or less, which have been validly assigned to FCFC and strictly comply
with all of Borrower's warranties and representations set forth in this
Agreement, but excluding those Accounts: (a) which are not paid within 90 days
of their invoice date; (b) which are owed by a single account debtor, if 25% of
the amount owing by said account debtor remains unpaid for more than 90 days
after its invoice date; (c) where the total indebtedness owed by an account
debtor to Borrower exceeds 15% of all Eligible Accounts; (d) which represent the
sale of goods delivered on consignment, guaranteed sale or on other conditional
terms; (e) which are subject to any defense, setoff or counterclaim claimed or
asserted by the account debtor; (f) which are evidenced by an instrument; (g)
which are owed by an account debtor who is not a resident of the United States;
(h) where the account debtor is the United States or any department, agency or
instrumentality of the United States; (i) where the account debtor is a
subsidiary of, related to, affiliated or has common shareholders, officers or
directors with Borrower; (j) where the account debtor is an officer, employee or
agent of Borrower; (k) which represent goods sold and/or transferred where
possession and/or control is held, maintained or retained by Borrower (or its
agent) for the account of or subject to further and/or future direction from the
account debtor thereof; or (l) Accounts which are not creditworthy, in the sole
opinion of FCFC. FCFC will not consider maintenance accounts or advance deposits
as "Eligible Accounts".
1.7 "FCFC's Costs" means and includes: filing, recording,
publication and search fees incurred by FCFC relating to Borrower; all costs and
expenses incurred by FCFC in the enforcement of its rights and remedies under
this Agreement, or defending this Agreement or its security interest in the
Collateral; long distance telephone and facsimile charges, the expenses of field
examiners; all expenses for travel, lodging and food incurred by FCFC's
personnel in collecting the Accounts or realizing upon the Collateral; all costs
and expenses incurred in gaining possession of, maintaining, handling,
preserving, storing, repairing, shipping, selling, preparing for sale and
advertising to sell the Collateral, whether or not a sale is consummated; all
expenses involved in fulfilling in whole or in part any purchase order from an
account debtor; and reasonable attorney's fees and expenses incurred by FCFC as
provided for in this Agreement.
1.8 "Inventory" means and includes all of Borrower's goods
held for sale or lease, raw materials, components, work in process, finished
merchandise, and packing and shipping materials, now owned or hereafter
acquired, wherever located; all patents, blueprints and drawings related
thereto; all other items hereafter acquired by Borrower by way of substitution,
replacement, return, repossession or otherwise, and all additions and accessions
thereto; and the resulting product or mass, and any documents of title
representing any of the above.
1.9 "Obligations" means and includes all loans, advances
(whether evidenced by promissory note(s) or not), indebtedness, liabilities,
obligations, lease payments, guaranties, covenants and duties of Borrower to
FCFC of every kind, nature and description, (whether arising out of this
Agreement, or any other security agreement, mortgage, lease, instrument,
document, contract or similar agreement now or hereafter executed by Borrower
and delivered to FCFC, or by oral agreement or operation of law and whether or
not for the payment of money), direct or indirect, absolute or contingent, due
or to become due, liquidated or unliquidated, now existing or hereafter arising,
including without limitation any debt, liability or obligation owing by Borrower
to others which FCFC may have acquired by assignment or otherwise, and further
including, without limitation, all interest and FCFC's Costs which Borrower is
required to pay or reimburse by this Agreement, by law or otherwise. The term
"Obligations" also includes all amounts which would become due but for the
operation of the automatic stay under Section 362(a) of the United States
Bankruptcy Code, 11 U.S.C. 362(a), and the operation of Section 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. 502(b) and 506(b), and
including indebtedness of Borrower arising under successive transactions which
renew, continue, refinance or refund the Obligations of Borrower.
1.10 "Prime Rate" means the Prime Rate publicly announced by
Bank One, Phoenix, Arizona, from time to time (which may not necessarily be the
lowest rate charged by such bank to its customers).
1.11 Any and all terms used in this Agreement shall be
construed and defined in accordance with the meaning and definitions set forth
herein or, to the extent not inconsistent herewith, as such terms are defined in
the Arizona Uniform Commercial Code, as amended from time to time (hereinafter
referred to as the "Code").
2. Advances and Charges.
2.1 Upon request of Borrower, from time to time during the
term hereof, provided the representations and warranties of paragraph 5. hereof
are then true, and so long as no event of default hereunder has occurred and
Borrower is in full, faithful and timely compliance with each and all of the
covenants, conditions, warranties, and representations, contained in this
Agreement or in any other agreement between FCFC and Borrower, FCFC agrees to
make advances to Borrower in an amount which when added to the advances then
outstanding does not exceed the lesser of the Credit Facility or 65% of the
amount of Eligible Accounts of Borrower (less discounts, credits, allowances,
service charges, commissions, and freight charges which may be granted to or
taken by the account debtors). FCFC may at any time and from time to time change
the percentage of Eligible Accounts to be advanced to Borrower.
FCFC is hereby authorized to make said advances based upon
instructions received from the list of authorized signers attached to this
Agreement.
2.2 The Obligations of Borrower to FCFC shall bear interest,
for the actual days outstanding at the rate equal to the Prime Rate plus 4.50%
per annum, computed on the basis of a 360-day year for actual days elapsed. The
Prime Rate of 7.00%, is the rate in effect as of this date. In the event of a
change in the Prime Rate from time to time, the rate of interest to be charged
to Borrower shall be correspondingly adjusted as of the date of the Prime Rate
change. Notwithstanding the foregoing, in no event shall the interest rate
chargeable hereunder be less than 11.00% per annum. Interest is due and payable
to FCFC under this Agreement on the first day of each month. Any interest not
paid when due shall become a part of Borrower's Obligations under this
Agreement, and shall thereafter bear interest as provided herein.
FCFC shall render statements to Borrower of the Obligations,
including all principal, interest and FCFC's Costs owing, and such statements
shall be conclusively presumed to be correct and accurate and constitute an
account stated between Borrower and FCFC unless, within thirty (30) days after
receipt thereof by Borrower, Borrower notifies FCFC in writing specifying the
error or errors, if any, contained in any such statements.
2.3 Upon the default by Borrower under any provision of this
Agreement, and for as long as Borrower is in default, interest shall accrue on
the Obligations from and after such default at a rate of interest which is four
percent per annum greater than the rate which is then being charged.
2.4 In consideration for establishing the Credit Facility on
the terms and conditions provided for herein, Borrower agrees to pay to FCFC
upon the execution hereof a commitment and funding fee of one and one-half
percent (1.50%) of the original amount of the Credit Facility, which shall be
deemed earned and non-refundable upon payment thereof. In the event that the
term of this Agreement is renewed as provided in paragraph 4 below, Borrower
shall pay within ten days prior to the anniversary date to FCFC a renewal fee of
1.00% of the amount of the Credit Facility each year that it is renewed. In the
event that the amount under the Credit Facility is increased, Borrower shall pay
to FCFC a 1.00% line increase fee on the additional commitment amount, which
shall be deemed earned and non-refundable upon payment thereof.
2.5 In order to further induce FCFC to grant the Credit
Facility to Borrower, Borrower agrees that the minimum amount of interest to be
paid monthly by Borrower to FCFC, during the original and each renewal term of
this Agreement, shall not be less than $7,500.00 per month. Notwithstanding any
default by Borrower, or a termination of this Agreement by FCFC because of such
default, this minimum interest shall be charged to and paid by Borrower for the
unexpired term of this Agreement. If this loan is repaid from a new credit
facility executed by Borrower with Imperial Bank or M&I Thunderbird Bank the
minimum interest amount that otherwise would be due and payable will be waived
for the remaining term of the Agreement.
In the event the monthly interest earned by FCFC on advances
made by FCFC to Borrower under this Agreement is less than the minimum set forth
above, Borrower will pay to FCFC such difference at the same time as such
accrued interest is due and payable.
2.6 It is the intention of the parties hereto that the
interest required to be paid by Borrower to FCFC, plus all charges imposed upon
Borrower hereunder which may be construed by a court of law to be interest,
shall not exceed the maximum rate of interest allowed by the laws of the State
of Arizona and if a court of law construes the same to exceed such maximum rate,
then the excess so determined shall be applied against the principal balance of
Obligations owing to FCFC.
3. Creation of Security Interest.
3.1 Borrower hereby grants to FCFC a continuing security
interest in the Collateral to secure the prompt payment and performance by
Borrower of all Obligations under this Agreement or otherwise created.
3.2 Borrower shall execute and deliver to FCFC concurrently
with Borrower's execution of this Agreement, and at any time or times hereafter
at the request of FCFC, financing statements, continuation statements, security
agreements, mortgages, assignments, certificates of title, affidavits, reports,
notices, schedules of accounts, letters of authority and all other documents
that FCFC may request, in form satisfactory to FCFC, to perfect and maintain
FCFC's security interest in the Collateral and fully comply with this Agreement.
Borrower hereby makes, constitutes and appoints FCFC (and any of FCFC's
officers, employees or agents designated by FCFC) as Borrower's true and lawful
attorney (which shall be irrevocable until all Obligations are fully paid and
satisfied) with power to sign the name of Borrower on any financing statement,
continuation statement, security agreement, mortgage, assignment, certificate of
title, affidavit, letter of authority, or notice or other similar document
necessary to perfect or continue the perfection of FCFC's security interest in
the Collateral. Borrower shall make appropriate entries in Borrower's Books
disclosing FCFC's security interest in the Accounts. FCFC (through any of its
officers, employees or agents) shall have the right at any time or times
hereafter during Borrower's usual business hours to inspect the Collateral.
3.3 To further evidence the security interest of FCFC in the
Accounts, Borrower shall, from time to time, provide FCFC with schedules and
written assignments of its Accounts, in form satisfactory to FCFC. Borrower's
failure to execute and deliver such schedules and/or assignments shall not
affect or limit FCFC's security interest or any other rights in and to the
Accounts. Together with each schedule, Borrower shall furnish FCFC with true and
correct copies of Borrower's customers' invoices or the equivalent and original
shipping or delivery receipts for all Inventory sold.
3.4 FCFC, or its agents, may at any time (and whether or not
Borrower is in default under this Agreement) and without notice thereof to
Borrower: (a) notify the account debtors of Borrower that the Accounts have been
assigned to FCFC and that FCFC has a security interest therein; (b) direct all
account debtors to make payment of all Accounts to FCFC; (c) demand, collect (by
legal means or otherwise), receive, receipt for, xxx for, compromise, adjust,
settle or extend the time for payment of any Account upon such terms as FCFC may
reasonably determine under the circumstances, in its own name or in the name of
Borrower (crediting Borrower's Accounts with only the net amount received by
FCFC in payment of the Accounts, after deducting all FCFC's Costs in connection
therewith); and (d) take control of all proceeds from said Accounts. In this
regard, Borrower agrees that it will cooperate with FCFC (and execute such forms
or notices as FCFC may request) in notifying the account debtors that the
Accounts have been assigned to FCFC and that FCFC has a security interest
therein. Until such time as FCFC exercises such right, Borrower shall collect
the Accounts, receiving in trust all proceeds therefrom as FCFC's trustee and
each day deliver said proceeds to FCFC in their original form as received from
the account debtors, together with a remittance report, in form satisfactory to
FCFC. The receipt of any check or other item of payment by FCFC shall not be
considered payment to FCFC until such check or other item of payment is actually
paid. For the purpose of computing the interest to be charged to Borrower under
paragraph 2.2 hereof all checks, and other items of payment delivered to FCFC
from time to time shall be treated as being paid four business day after the
date FCFC actually receives such check or other item of payment, subject to
reversal of entry in the event such remittance is not paid upon presentment to
the drawee bank. Wire transfers received from Imperial Bank shall be deemed to
have been paid to FCFC one business day after the date FCFC actually received
such transfer. It is further understood that for the purpose of computing
interest to be charged to Borrower, the amount of any credit balance which
Borrower may have with FCFC shall be treated as an advance by FCFC to Borrower
under this Agreement.
3.5 Borrower authorizes FCFC and FCFC shall have the right at
any time or times to verify the Accounts by mail, telephone, or otherwise in the
name of Borrower or FCFC. In addition, Borrower authorizes FCFC to obtain
information from Borrower's suppliers and customers and, in this regard,
Borrower waives any right or claim against any such supplier or customer for
furnishing information to FCFC.
3.6 Borrower shall promptly provide FCFC with all information
relating to the financial condition of any account debtor, and shall notify FCFC
of the rejection of goods by any account debtor, delay in the delivery of goods,
or any returns or recoveries of goods, nonperformance of contracts, or the
assertion by an account debtor of any claim, offset or counterclaim, and the
settlement or adjustment of any dispute or claim with an account debtor on terms
approved by FCFC.
3.7 Borrower agrees to keep all goods returned by any account
debtor and all goods repossessed or stopped in transit by Borrower, segregated
from other property of Borrower, holding the same as trustee for FCFC, until
otherwise directed in writing by FCFC.
3.8 Borrower does hereby irrevocably designate, make,
constitute and appoint FCFC, and any agent of FCFC, as Borrower's true and
lawful attorney, with power, without notice to Borrower, and at such time or
times (except as otherwise provided herein) as FCFC may, in its sole election,
determine, in Borrower's or FCFC's name and at Borrower's expense, to:
(a) Endorse Borrower's name on any checks, notes,
acceptances, money orders, drafts or other forms of payment or security that may
come into FCFC's possession.
(b) Exercise all of Borrower's rights and remedies
with respect to the collection of Accounts.
(c) Sign Borrower's name on any invoice, freight xxxx
or xxxx of lading relating to any Account, on any draft against an account
debtor, on any schedule assignment of Accounts, verification of Accounts or on
any notice to account debtors.
(d) Prepare, file and sign Borrower's name on any
proof of claim in bankruptcy or similar document against an account debtor.
(e) Prepare, file and sign Borrower's name on any
notice of lien, claim of mechanic's lien or similar document or waiver or
satisfaction thereof in connection with an Account.
(f) Execute any other documents which may facilitate
the collection, liquidation or disposition of the Collateral.
FCFC shall not be obligated to do any of the acts or exercise
any of the powers hereinabove authorized, but, if FCFC elects to collect said
Accounts, do any such act or exercise any of the foregoing powers, it may do so
in any manner or means as it may determine, and shall not be liable to Borrower
for any error in judgment or mistake of fact or law, excepting willful
misconduct or bad faith. This power, being coupled with an interest, is
irrevocable until all Obligations of Borrower to FCFC are fully paid and
satisfied. All acts by or on behalf of FCFC pursuant hereto are hereby ratified
and approved by Borrower.
4. Term. This Agreement shall have a term of one year from the
date hereof and shall be automatically renewed from year to year, unless
terminated by either party on any anniversary date of this Agreement by written
notice to this effect given not less than 30 days, nor more than 45 days, prior
to said anniversary date. Notwithstanding the foregoing, Borrower may terminate
this Agreement at any time prior to the anniversary date of this Agreement, by
giving written notice to FCFC to this effect not less than 30 days, nor more
than 45 days, prior to the effective date of such termination, provided that
Borrower pays to FCFC on the date of termination, in addition to all Obligations
of Borrower to FCFC, the minimum amount of interest required to be paid by
Borrower to FCFC during the remainder of the original or renewal term of this
Agreement, as provided in paragraph 2.5 above. In the event Borrower defaults in
the performance of any provision of this Agreement, FCFC may, at its election,
terminate this Agreement at any time, without notice. On the date of
termination, all
Obligations, including but not limited to, obligations arising by reason of the
termination of this Agreement, shall become immediately due and payable without
notice or demand. Notwithstanding such termination, until all Obligations have
been fully satisfied, FCFC shall retain its security interest in all existing
Collateral and Collateral arising thereafter, and Borrower shall continue to
turn over all collections from the Accounts to FCFC. It is understood and agreed
that if Borrower has given notice of termination, pursuant to the provisions of
this paragraph, and fails to pay all Obligations to FCFC on the specified date,
or within 10 days thereafter, then this Agreement shall be automatically renewed
for an additional one year term.
5. Representations and Warranties. Until all Obligations of Borrower to
FCFC have been fully paid and satisfied, Borrower does hereby warrant and
represent that:
(a) If Borrower is a corporation or a limited liability
company, it is duly organized and is and all times hereinafter will be in good
standing under the laws of the state of its incorporation and is duly qualified
and in good standing in every other state in which the nature of its business
requires such qualification.
(b) Borrower is the true and lawful owner of the Collateral
and has the right, power and authority to grant a security interest therein to
FCFC.
(c) Borrower's chief place of business (or if it has more than
one place of business its chief executive office) and the office where
Borrower's Books are kept is at Borrower's address as set forth in this
Agreement.
(d) Borrower is not doing business and has not done business
during the last six years under any trade name or style, except its name(s) as
set forth in this Agreement or under the following name(s):
- Syntellect
- SIS
(e) The execution, delivery and performance hereof does not
constitute a default under any indenture, agreement or undertaking to which
Borrower is now or hereafter a party or by which it is or will be bound and, if
Borrower is a corporation or a limited liability company, the same are within
Borrower's corporate powers, have been duly authorized and are not in
contravention of its articles, bylaws, or operating agreement.
(f) All financial statements and information relating to
Borrower or any guarantor of Borrower's Obligations or with respect to the
Accounts which have been or may hereafter be delivered by Borrower to FCFC are
true and correct in all material respects and there has not been any material
adverse change in the financial condition of Borrower or any guarantor since the
last submission of such financial information to FCFC.
(g) There are no actions or proceedings pending by or against
Borrower or any guarantor of Borrower's Obligations in any court or
administrative agency and Borrower has no knowledge of any pending, threatened
or imminent litigation, governmental investigation or claim, complaint, action
or prosecution involving Borrower or any guarantor of Borrower, except as may
have been specifically disclosed in writing to FCFC and if any of the foregoing
arise during the term of this Agreement, Borrower shall immediately notify FCFC
in writing with respect thereto.
(h) Borrower has duly filed all federal, state and other
governmental tax returns which it is required by law to file and that all taxes
and other sums which may be due to the United States, any state or other
governmental authority have been fully paid and that Borrower now has and shall
hereafter maintain reserves adequate in amount to fully pay all such tax
liabilities which may hereafter accrue.
(i) All assessments and taxes whether real, personal or
otherwise due and payable by or imposed, levied or assessed against Borrower or
any of its assets have been paid and shall hereafter be paid in full before
delinquency. Borrower shall make due and timely payment or deposit of all
federal, state and local taxes, assessments or contributions required of it by
law (including timely payment or deposit of all F.I.C.A. payments and
withholding taxes) and will execute and deliver to FCFC on demand appropriate
certificates attesting to the payment or deposit thereof.
(j) Borrower is now and shall be at all times hereafter
solvent and able to pay its debts as they mature.
(k) With respect to all Collateral, FCFC's security interest
therein is now and shall hereafter at all times constitute a perfected, xxxxxx,
and first security interest in the Collateral and is not now and will not
hereafter become subordinate or junior to the security interest, lien,
encumbrance or claim of any person.
(l) All information furnished to FCFC at any time by or on
behalf of Borrower was, and will be when furnished, true, complete and correct
in all material respects.
(m) With respect to each Account now and from time to time
hereafter created:
(i) It is genuine, in all respects what it purport to be
and represents a bona fide, existing, valid and legally enforceable
indebtedness of the account debtor named therein, payable in the
amount, time and manner stated in the invoice therefor, and is
absolutely owing to Borrower and not contingent for any reason.
(ii) The delivery receipt and invoice therefor
represents bona fide sale in the ordinary course of Borrower's
business, represents the kind, quality and quantity of the goods or
services described therein, and that the goods or services described
herein have been completely delivered, installed or performed and at
the time of delivery or installation have been accepted by the account
debtor without condition.
(iii) No payments have been or shall be made thereon,
except payments which are turned over to FCFC by Borrower.
(iv) There is no setoff, counterclaim or dispute
existing or asserted with respect to the Account and Borrower has not
made any agreement with the account debtor thereof for any deduction or
discount of the sum payable thereunder, except regular discounts
allowed by Borrower in the ordinary course of its business for prompt
payment.
(v) The goods sold or transferred or the services
rendered as evidenced by the Account are not subject to any lien,
claim, encumbrance or security interest, except that of FCFC.
(vi) Borrower has no knowledge of the insolvency of the
account debtor or of any action or proceeding involving the account
debtor under any federal or state debtor's relief statute.
(vii) Borrower has no knowledge of any fact or
circumstance which would impair the validity or collectibility of the
Account.
(viii) Borrower has not made any assignment of the
Account or granted a security interest in the Account to any other
party other than FCFC.
(ix) All of Borrower's Books, and all records and
documents relating to the Account are and will be genuine and in all
respects what they purport to be, and accurately reflect the amounts
owing or to be owing at maturity by the account debtor.
Each warranty, representation and agreement contained in this Agreement shall be
automatically deemed repeated with each advance and shall be conclusively
presumed to have been relied upon by FCFC regardless of any investigation made
or information possessed by FCFC. The warranties, representations and agreements
set forth herein shall be cumulative and in addition to any other warranties,
representations and agreements which Borrower shall now or hereafter give, or
cause to be given to FCFC.
6. Affirmative Covenants. Until all Obligations of Borrower to FCFC are
fully paid and satisfied, Borrower will:
(a) At all times fully comply with all federal, state and
local laws, rules, orders or regulations pertaining to the conduct of its
business, including, but not limited to all applicable federal, state and local
environmental laws and regulations relating to the storage, usage and disposal
of hazardous substances or toxic chemicals by Borrower in its business. In this
regard, Borrower agrees to defend, indemnify and hold FCFC harmless for and
against any and all costs, claims, demands, damages including attorneys fees,
court costs, and investigatory and laboratory fees which FCFC may suffer or
incur in connection with any such violation which indemnification shall survive
the termination of this Agreement.
(b) Maintain Borrower's Books at the address set forth in this
Agreement (which is Borrower's place of business or, if it has more than one
place of business, its chief executive office) and will not, without prior
written consent of FCFC relocate its place of business (or if it has more than
one place of business, its chief executive office) or move Borrower's Books
outside the State of Arizona.
(c) Maintain a standard and modern system of accounting in
accordance with generally accepted accounting principles which contain such
information as may be requested by FCFC, and permit FCFC or any of its agents,
during Borrower's usual business hours or during the usual business hours of any
third party having control over the records of Borrower, to have access to and
have the right to examine all of Borrower's Books and in connection therewith
and permit FCFC or any of its agents to copy and make extracts therefrom.
(d) Promptly furnish to FCFC such records, data and other
information with respect to the financial condition of Borrower, the Collateral
and any guarantor, as FCFC may request from time to time, and deliver to FCFC
within 90 days after the end of each Borrower's fiscal year, a detailed report
in form satisfactory to FCFC containing a statement of the financial condition
and operation of Borrower for each such fiscal year, and within 20 days, after
demand by FCFC, deliver to FCFC copies of any financial report or statement
prepared by or for Borrower. Each such statement and report shall be reviewed or
compiled by an independent CPA or, with the consent of FCFC, prepared by an
authorized officer of Borrower certifying that such report, statement or
document delivered or caused to be delivered to FCFC is complete, correct and
thoroughly presents the financial condition of Borrower and that on the date of
said certification no event or condition exists which constitutes a breach or
event of default under this Agreement. In addition, Borrower shall deliver to
FCFC within 30 days after the end of each month, a detailed report in form
satisfactory to FCFC containing a statement of the financial condition and
operation of Borrower for each such month.
(e) Allow FCFC to possess, remove to FCFC's premises or the
premises of any agent of FCFC, copies of Borrower's Books, for so long as FCFC
may desire in connection with the enforcement of FCFC's rights under this
Agreement.
(f) Notify FCFC of any material adverse change in Borrower's
financial condition.
(g) Make timely payment or deposit of all taxes (including
F.I.C.A. payments and deposits of withholding taxes) and assessments required to
be paid by Borrower and deliver to FCFC, as requested, evidence of such payment
or deposit.
(h) Pay all rent when due and otherwise abide by the terms
under which Borrower leases or occupies the premises at which the Collateral is
located; if Borrower fails to do so, FCFC may, without any obligation, pay such
rent and any sum so paid shall be part of FCFC's Costs, secured by the
Collateral and payable on demand.
(i) Cause to be paid all amounts necessary to fund, in
accordance with their terms, all pension plans presently in existence or
hereafter created and Borrower will not withdraw from participation in, permit
the termination or partial termination of, or permit the occurrence of any other
event with respect to any deferred compensation plan maintained for the benefit
of its employees under circumstances that could result in liability to the
Pension Benefit Guarantee Corporation, or any of its successors or assigns, or
to the entity which provides funds for such deferred compensation plan.
(j) Maintain a working capital ratio of 1.0:1 and a net worth
at least equal to $6,000,000.
(k) Maintain itself in good standing in all jurisdictions in
which Borrower is doing business, and at the request of FCFC, furnish to FCFC
evidence of its good standing in all such jurisdictions.
(l) Maintain all Collateral at the address set forth in this
Agreement or at:
- 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000
- 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 000X,
Xxxxxxx, Xxxxxxx 00000
- 0 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000
- 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxxxxx 00000
- 000 Xxxxx 000 Xxxx, Xxxxx 000, Xxxxxxxx Xxxxx,
Xxxx 00000
and will not, without the prior written consent of FCFC, move said Collateral to
any other address.
(m) Promptly deliver to FCFC all documents and instruments
relating to the Collateral, including invoices, original orders, shipping
documents, delivery receipts, as FCFC may request from time to time.
(n) Furnish to FCFC daily or less frequently as FCFC shall
permit from time to time, written schedules and reports of the status of
Borrower's Accounts in such form as shall be required by FCFC.
(o) On request of FCFC, execute and deliver to FCFC any and
all additional documents which FCFC may request from time to time to evidence
the advances made hereunder or the security interest granted hereby.
7. Negative Covenants. Until all Obligations of Borrower to FCFC are
fully paid and satisfied, Borrower will not, without the prior written consent
of FCFC:
(a) Grant a security interest in the Accounts or the Inventory
or permit a lien, claim or encumbrance to be imposed on any of the Collateral.
(b) Sell, lease, rent or otherwise dispose of, move, transfer
or relocate outside the State of Arizona, Georgia, Illinois, Massachusetts and
Utah, whether by sale or otherwise, any of Borrower's property or any interest
therein, including the Collateral, but excluding Inventory which may be sold,
leased, or otherwise disposed of in the ordinary course of Borrower's business,
provided that FCFC shall nevertheless continue to have a security interest in
the proceeds thereof.
(c) Permit any Collateral to become affixed to real property,
become an accession to any property or be used in violation of any applicable
law, regulation or policy of insurance.
(d) Permit any levy, or attachment to be made on any of
Borrower's assets.
(e) Permit any receiver, trustee, custodian, assignee for the
benefit of creditors or any other person or entity having similar powers or
duties to be appointed or to take possession of any or all of Borrower's assets.
(f) Change its corporate or trade name, business structure,
corporate identity or structure, do business under any additional trade name, or
liquidate, merge or consolidate with or into any other business organization.
(g) Acquire any entity or purchase the stock or securities of
any entity (other than securities of any state or federal government).
(h) Permit any sale or disposition of a controlling interest
in Borrower or permit a change in the management of Borrower.
(i) Enter into any transaction or incur any debts not in the
usual course of Borrower's business.
(j) Guarantee or otherwise become in any way liable with
respect to the obligations of any person except by endorsement of instruments or
items of payment for deposit to the account of Borrower or which are transmitted
or turned over to FCFC on account of Borrower's Obligations.
(k) Pay or declare any dividends upon Borrower's capital
stock.
(1) Redeem, retire, purchase or otherwise acquire directly or
indirectly any of Borrower's capital stock.
(m) Make any distribution of Borrower's property or assets.
(n) Not Used.
(o) Make any advance, loan, contribution or payment of money
(other than compensation for personal services), goods or credit to, or
guarantee any obligation of any subsidiary, affiliate or parent corporation, or
any officer, shareholder or employee, or cause or permit any such advance, loan,
contribution or guarantee to be made by any subsidiary corporation other than
the guaranty executed in connection herewith with this Agreement.
8. Insurance. Borrower, at its expense, shall keep the Collateral
insured against loss or damage by fire, theft, and all other hazards and risks
ordinarily insured against by owners in similar businesses for the full
insurable value thereof, business interruption insurance and public liability
and property damage insurance relating to Borrower's ownership and use of its
assets. All such policies of insurance shall be in such form, with such
companies and in such amounts as may be satisfactory to FCFC. Borrower shall
deliver to FCFC certified copies of such policies of insurance and evidence of
the payment of all premiums therefor. All such policies of insurance (except
those of public liability and property damage) shall contain an endorsement in a
form satisfactory to FCFC showing FCFC as the loss payee. All proceeds payable
thereunder shall be payable to FCFC and upon receipt by FCFC shall, at FCFC's
option, be applied on the account of Borrower's Obligations, whether or not then
due, or to the repair or replacement of the Collateral. To secure the payment of
Borrower's Obligations, Borrower grants FCFC a security interest in and to all
such policies of insurance (except those of public liability and property
damage) and the proceeds thereof, and Borrower shall direct all insurers under
such policies of insurance to pay all proceeds thereof directly to FCFC.
Borrower hereby irrevocably appoints FCFC (and any of FCFC's officers, employees
or agents designated by FCFC) as Borrower's attorney for the purpose of making,
settling and adjusting claims under such policies of insurance, endorsing the
name of Borrower on any check, draft, instrument or other item of payment for
the proceeds of such policies of insurance and for making all determinations and
decisions with respect to such policies of insurance. Each such insurer shall
agree, by endorsement upon the policy or policies of insurance issued by it to
Borrower as required above, or by independent instruments furnished to FCFC,
that it will give FCFC at least 10 days written notice before any such policy or
policies of insurance shall be altered or canceled, and that no act of Borrower
or any other person or the default hereunder by Borrower, shall affect the right
of FCFC to recover under such policy or policies of insurance. FCFC, without
waiving or releasing any Obligations or default by Borrower hereunder, may, but
shall have no obligation to do so, obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect to such
policies which FCFC deems advisable. All sums so disbursed by FCFC, as well as
reasonable attorneys fees, court costs, expenses and other charges relating
thereto, shall be a part of FCFC's Costs, secured by the Collateral and payable
on demand.
9. Events of Default. The occurrence of any one or more of the
following shall constitute an event of default by Borrower under this Agreement
(each an "Event of Default"):
(a) Borrower fails to pay any of Borrower's Obligations
(whether of principal, interest, taxes, reimbursement of FCFC's Costs, or
otherwise) when due and payable or is declared to be due and payable.
(b) Borrower fails or neglects to perform, keep or observe any
term, provision, condition, or covenant contained in this Agreement, or any
other present or future agreement between Borrower and FCFC.
(c) Any representation, statement, report or certificate made
or delivered by Borrower, or any of its officers or agents, (either individually
or as an officer or agent of Borrower) to FCFC proves to be untrue or incorrect
in any material respect.
(d) Any Collateral cannot be located within five days after
FCFC makes demand upon Borrower to inspect the same or any Collateral has been
moved outside the State of Arizona, Georgia, Illinois, Massachusetts and Utah,
without the consent of FCFC.
(e) There is a material impairment in the prospect of
repayment of Borrower's Obligations or a material impairment in the value of the
Collateral or that the priority of FCFC's security interest in the Collateral is
contested.
(f) Any of Borrower's assets are attached, seized, or are
levied upon, and the same are not released, discharged or bonded against within
ten days thereafter.
(g) Any proceeding under the Bankruptcy Act is filed by or
against Borrower.
(h) A notice of lien, levy or assessment is filed of record
with respect to any or all of Borrower's assets by the United States Government,
or any department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental agency, or if any taxes or debts owing at any
time hereafter to any one or more of such entities becomes a lien, whether
xxxxxx or otherwise, upon any or all of the Borrower's assets and the same is
not paid on the payment date thereof.
(i) Borrower is enjoined, restrained or in any way prevented
by court order from continuing to conduct all or any material part of its
business affairs.
(j) Borrower ceases normal business operations.
(k) A material portion of the Collateral is stolen, damaged or
destroyed.
(l) A judgment or other claim becomes a lien or encumbrance
upon any or all of Borrower's assets and the same is not satisfied, dismissed or
bonded against within 10 days thereafter.
(m) If any of Borrower's records are prepared and kept by an
outside computer service at any time during the term of this Agreement, and said
computer service fails to provide FCFC with any requested information or
financial data pertaining to the Collateral, Borrower's financial condition or
the results of Borrower's operations.
(n) If there is a default in any agreement to which Borrower
is a party with any third party resulting in a right by such third party to
accelerate the maturity of any indebtedness of Borrower to such third party.
(o) Borrower makes any payment on account of indebtedness
which has been subordinated to Borrower's Obligations to FCFC, without FCFC's
consent, or if any person subordinating such indebtedness terminates or in any
way limits his subordination.
(p) Not Used.
(q) Not Used.
10. FCFC's Rights and Remedies.
10.1 Upon the occurrence of an Event of Default by Borrower
under this Agreement, FCFC may, at its election, without notice of its election
and without demand upon Borrower or any guarantor, do any one of more of the
following, all of which are authorized by Borrower:
(a) Declare any or all of Borrower's Obligations, whether
evidenced by note(s), or otherwise, immediately due and payable.
(b) Terminate this Agreement, but without affecting FCFC's
rights and security interests in the Collateral, and the Obligations of Borrower
to FCFC.
(c) Cease making advances to or for benefit of Borrower under
the Credit Facility or reduce the Credit Facility.
(d) Continue making advances to Borrower in such amounts as
FCFC may determine, in its sole discretion, without waiving any default by
Borrower under this Agreement.
(e) Proceed to collect the Accounts, pursuant to
A.R.S.Section 47-9502, and, in this regard, notify the post office authorities
to change the address for delivery of Borrower's mail to an address designated
by FCFC, and receive, open and distribute all mail addressed to Borrower,
retaining all mail relating to Collateral and forwarding all other mail to
Borrower.
(f) Exercise any and all of the rights accruing to a secured
party under the Code and any other applicable law.
(g) Enter, with or without process of law, upon any premises
where the Collateral is or believed by FCFC to be located (the "Premises"),
using all necessary force to accomplish the same without committing a breach of
the peace (Borrower hereby waives all claims for damages or otherwise due to,
arising from or connected with such entry and/or seizure); and:
(i) Take possession of the Premises and of the Collateral
located therein;
(ii) Place a custodian in exclusive control of the Premises
and of any of the Collateral located therein;
(iii) Remove from the Premises the Collateral (and any of
Borrower's Books, materials and supplies) in any way relating to the
Collateral or useful by FCFC in enforcing its rights hereunder;
(iv) Remain upon the Premises and use the same (together with
said Borrower's Books, materials and supplies) for the purpose of
collecting the Collateral and/or preparing the Collateral for
disposition and/or disposing of the Collateral.
(h) Make (without any obligation to do so) any payment and
take such action as FCFC considers necessary or reasonable to protect or
preserve the Collateral or its security interest therein, including paying,
purchasing, contesting or compromising any encumbrance, charge or lien which, in
the opinion of FCFC, interferes with the enforcement of its security interests
or the liquidation or disposition of the Collateral.
(i) Require Borrower to assemble the Collateral and, at
Borrower's expense, deliver the same to FCFC or to a third party as FCFC's
bailee at a place or places to be designated by FCFC which is reasonably
convenient to the parties.
(j) Ship, reclaim, recover, store, finish, maintain, repair
and prepare for sale the Collateral.
(k) Sell the Collateral (whether or not the Collateral is
present at any such sale) in its then condition, or after further manufacturing,
processing or preparation thereof (utilizing, in connection therewith, without
charge or liability to FCFC therefor, any of Borrower's assets), at either
public or private sale, or both, by way of one or more contracts or
transactions, for cash or on terms, in such manner and at such places (including
Borrower's premises) as is commercially reasonable, in the opinion of FCFC. In
such event, FCFC shall (unless notice has been waived after default pursuant to
the provisions of the Code) give notice to Borrower in
writing of the time and place of public sale, or, if the sale is a private sale
or some other disposition other than a public sale is to be made of the
Collateral, the time after which the private sale or other disposition is to be
made, at least five days before the date fixed for the sale, or at least five
days before the date after which the private sale or other disposition is to be
made, unless the Collateral is perishable or threatens to decline speedily in
value. FCFC may purchase all or any portion of the Collateral at any public
sale.
(l) Seek temporary or permanent injunctive relief without the
necessity of proving actual damages, as no remedy at law will provide adequate
relief to FCFC and, in this regard, the bond which FCFC may be required to post
shall be no more than $500.00.
(m) Require Borrower to pay all FCFC's Costs incurred in
connection with FCFC's enforcement and exercise of any of its rights and
remedies as herein provided, whether or not suit is commenced by FCFC.
Any deficiency which exists after disposition of the Collateral, as provided
above, shall be due and payable by Borrower upon demand, with any excess to be
paid by FCFC to Borrower.
10.2 FCFC's rights and remedies under this Agreement and all
other agreements shall be cumulative and may be exercised simultaneously or
successively, in such order as FCFC shall determine. In addition, FCFC shall
have all other rights and remedies not inconsistent herewith as provided by law
or in equity. No exercise by FCFC of one right or remedy shall be deemed an
election, and no waiver by FCFC of any default on Borrower's part shall be
deemed a continuing waiver. No delay by FCFC shall constitute a waiver, election
or acquiescence by it.
11. Taxes and Expenses Regarding Borrower's Property.
If Borrower fails to pay any assessments, taxes,
contributions, or make any deposits, or furnish any required proof thereof as
set forth in paragraph 6(g) hereof or in any other provision of this Agreement,
FCFC may, in its sole and absolute discretion and without notice to Borrower (a)
make payment of the same or any part thereof, or (b) set up such reserves in
Borrower's account as FCFC deems necessary to satisfy the liability therefor, or
both. If Borrower fails to promptly pay when due to any other person or entity,
any sum which Borrower is required to pay by reason of any provision in this
Agreement, FCFC may, but is not obligated to, advance any sums which it deems
appropriate for the protection or preservation of the Collateral or its security
interest therein, and the amount so advanced by FCFC shall bear interest at the
highest rate provided for in paragraph 2.3 above, and shall constitute FCFC's
Costs, payable on demand, and shall be secured by the Collateral. Any payment
made by FCFC shall not constitute (a) an agreement by it to make similar
payments in the future, or (b) a waiver by FCFC of any default under this
Agreement. FCFC need not contest nor inquire as to the validity of any such
expense, tax, security interest, encumbrance or lien, and the receipt of the
usual official notice for the payment thereof shall be conclusive evidence that
the same was validly due and owing.
12. Waivers By Borrower.
12.1 FCFC shall not be deemed to have waived any provision of
this Agreement, or any right or remedy which it may have hereunder, or at law or
equity, unless such waiver is in writing and signed by FCFC.
12.2 Borrower waives the right to direct the application of
any payments at any time or times received by FCFC on account of Borrower's
Obligations and Borrower agrees that FCFC shall have the continuing exclusive
right to apply and reapply such payments in any manner as FCFC may deem
advisable.
12.3 Except as otherwise provided for in this Agreement,
Borrower waives demand, protest, notice of protest, notice of default or
dishonor, notice of payment and nonpayment, notice of any default, nonpayment at
maturity, release, compromise, settlement, extension or renewal of any or all
commercial paper, accounts, documents, instruments, chattel paper and guaranties
at any time held by FCFC on which Borrower may in any way be liable.
12.4 Failure or delay by FCFC in exercising or enforcing any
right, power, privilege, lien, option or remedy hereunder shall not operate as a
waiver thereof and a waiver by FCFC of any default by Borrower under this
Agreement shall not be construed to create any right or expectation of future
waiver of any subsequent breach or default by Borrower under this Agreement.
12.5 FCFC shall not in any way or manner be liable or
responsible for (a) the safekeeping of the Collateral; (b) any loss or damage
thereto occurring or arising in any manner or fashion from any cause; (c) any
diminution in the value thereof; or (d) any act or default of any carrier,
warehouseman, bailee, forwarding agency or other person whomsoever. All such
risk or loss, damage or destruction of the Collateral shall be borne by
Borrower.
12.6 Borrower waives (to the extent the same may be lawfully
waived): any and all causes of action and claims which it may now or ever have
against FCFC for failing to protect any Collateral in its possession, or failing
to collect or sell any of the Collateral, notwithstanding the effect of such
possession, collection or sale upon the business of Borrower. In addition,
Borrower hereby releases FCFC of and from (a) any and all liabilities or
penalties for failure of FCFC to perfect or maintain the priority of its
security interest or to comply with any statutory or other requirement imposed
on FCFC; and (b) any error of judgment or mistake of fact or law.
12.7 In the event FCFC seeks to obtain possession of any of
the Collateral by replevin or other judicial process, Borrower hereby waives (a)
any bond or security required to be posted by any statute, court rule or
otherwise as an incident to such possession and (b) any demand for possession of
the Collateral prior to the commencement of any suit or action to recover
possession thereof.
12.8 Borrower waives any right to trial by jury in any action
or proceeding relating to this Agreement or any transactions hereunder.
13. Notices.
Unless otherwise provided in this Agreement, all notices,
demands or other communications to either party shall be in writing and shall be
mailed, telecopied or communicated by means of facsimile transmission (followed
by a mailed or delivered hard copy), or delivered by hand or courier service, at
their respective addresses set forth in this Agreement, or at such other
addresses as shall be designated by such party in a written notice to the other
party. All notices and other communications shall be effective on three business
days after deposit in the mail (postage prepaid in the case of mail), upon
telecopy or other facsimile transmission or upon hand delivery.
14. Destruction of Borrower's Documents.
Any documents, schedules, invoices or other papers delivered
to FCFC, may be destroyed or otherwise disposed of by FCFC five months after
they are delivered to or received by FCFC, unless Borrower requests, in writing,
the return of the said documents, schedules, invoices or other papers and makes
arrangements, at Borrower's expense, for their return.
15. Release.
Only at such time as all Obligations of Borrower to FCFC shall
have been fully paid and satisfied and Borrower and all guarantors of Borrower's
obligations execute and deliver to FCFC a release acknowledging that Borrower
does not have any claims against FCFC and provides FCFC with an appropriate
indemnity indemnifying FCFC for any remittances for which Borrower has received
credit and which are not paid, shall FCFC release its security interest in the
Collateral and deliver to Borrower an appropriate termination statement.
16. General Provisions.
16.1 The parties intend and agree that their respective
rights, duties, powers, liabilities, obligations and discretions shall be
performed, carried out, discharged and exercised reasonably and in good faith.
16.2 If at any time or times hereafter FCFC employs counsel
for advice or other representation (a) with respect to any of the Collateral or
this Agreement or modification thereof, (b) to represent FCFC in any
litigation, contest, dispute, suit or proceeding or to commence, defend, or
intervene or to take any other action in or with respect to any litigation,
contest, dispute, suit or proceeding (whether instituted by FCFC, Borrower or
any other party) in any way relating to any of the Collateral, this Agreement or
Borrower's affairs, (c) to protect, collect, lease, sell, take possession of or
liquidate any of the Collateral, (d) to attempt to enforce any security interest
of FCFC in any of the Collateral or (e) to enforce any rights of FCFC against
Borrower or against any other person which may be obligated to FCFC by virtue of
this Agreement including Borrower's account debtors, then, in any of the
foregoing events, all of the reasonable attorneys' fees arising from such
services and all expenses, costs and charges in any way arising in connection
therewith or relating thereto shall constitute a part of FCFC's Costs secured by
the Collateral and be payable on demand.
16.3 Neither this Agreement nor any uncertainty or ambiguity
herein shall be construed or resolved against FCFC or Borrower, whether under
any rule of construction or otherwise; on the contrary, this Agreement has been
reviewed by all parties and shall be construed and interpreted according to the
ordinary meaning of the words used so as to fairly accomplish the purposes and
intentions of all parties hereto. When permitted by the context, the singular
includes the plural and vice versa.
16.4 The validity of this Agreement, its construction,
interpretation and enforcement, and the rights of the parties hereunder and
concerning the Collateral, shall be determined under and according to the laws
of Arizona. In any litigation involving FCFC and Borrower, Borrower does hereby
irrevocably submit itself to the process, jurisdiction and venue of the courts
of the State of Arizona in Maricopa County or to the process, jurisdiction and
venue of the U.S. District Court for Arizona for the purposes of suit, action or
other proceedings arising out of or relating to this Agreement or the subject
matter hereof, and without limiting the generality of the foregoing, hereby
waives and agrees not to assert by way of motion, defense or otherwise in any
such suit, action or proceeding any claim that Borrower is not personally
subject to the jurisdiction of such courts, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper.
16.5 The provisions of this Agreement are independent of and
separate from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, it is the intent of the parties that such invalidity
or unenforceability shall not affect the validity or unenforceability of any
other provision hereof and that this Agreement shall be construed as if such
invalid or unenforceable provision had never been contained herein.
16.6 Paragraph headings and paragraph numbers have been set
forth herein for convenience only; unless the contrary is compelled by the
context, everything contained in each paragraph applies equally to this entire
Agreement.
16.7 This Agreement cannot be changed or terminated orally.
All prior agreements, understandings, representations, warranties, and
negotiations, if any, are merged into this Agreement.
16.8 FCFC shall have the right, without the consent of or
notice to Borrower to grant participation interests in the Credit Facility and
in this regard may provide the participant with any and all information with
respect to Borrower and the Credit Facility. In addition, FCFC may assign this
Agreement and its rights and duties hereunder at any time, without the consent
of or notice to Borrower. This Agreement shall inure to the benefit of FCFC, its
successors and assigns. Borrower may not assign this Agreement or any rights
hereunder, without FCFC's prior written consent and any such assignment shall be
void and of no effect whatsoever. No consent to any assignment by FCFC shall,
without the written consent of FCFC, release Borrower or any guarantor of its
Obligations to FCFC.
16.9 This Agreement shall inure to the benefit of FCFC and any
successors or assigns of FCFC, including any participant in the Credit Facility.
This Agreement shall bind and inure to the benefit of the respective successors
and assigns of each of the parties; however, Borrower may not assign this
Agreement or any rights hereunder without FCFC's prior written consent and any
prohibited assignment shall be absolutely void. No consent to any assignment by
FCFC shall release Borrower or any guarantor of its Obligations to FCFC. FCFC
may assign this Agreement and its rights and duties hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed at Phoenix, Arizona, as of the date written above.
FCFC:
FIRST COMMUNITY FINANCIAL CORPORATION,
an Arizona corporation
By: /S/ Xxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxx X. Xxxxxxx
Title: President
BORROWER:
Syntellect Inc.,
a Delaware corporation
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President
BORROWER:
Syntellect Interactive Services, Inc.,
a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President
AMENDMENT TO ACCOUNTS RECEIVABLE
SECURITY AGREEMENT
FOR A VALUABLE CONSIDERATION, First Community Financial Corporation (FCFC) and
Syntellect Inc., a Delaware corporation and Syntellect Interactive Services,
Inc., a Georgia corporation (collectively, BORROWER) do hereby agree to amend
paragraphs 1.5 and 2.2 of that certain Accounts Receivable Security Agreement
dated June 14, 2001 between the parties (as the same may have been amended from
time to time) in its entirety as follows:
1.5 Effective October 1, 2001, "Credit Facility" shall mean a
revolving line of credit granted by FCFC to Borrower in the
amount of $2,000,000.00, in accordance with the terms and
conditions set forth in this Agreement.
2.2 Effective October 1, 2001, the Obligations of Borrower to FCFC
shall bear interest, for the actual days outstanding at the
rate equal to the Prime Rate plus 8.50% per annum, computed on
the basis of a 360-day year for actual days elapsed. The Prime
Rate of 5.50%, is the rate in effect as of this date. In the
event of a change in the Prime Rate from time to time, the
rate of interest to be charged to Borrower shall be
correspondingly adjusted as of the date of the Prime Rate
change. Notwithstanding the foregoing, in no event shall the
interest rate chargeable hereunder be less than 15.00% per
annum. Interest is due and payable to FCFC under this
Agreement on the first day of each month. Any interest not
paid when due shall become a part of Borrower's Obligations
under this Agreement, and shall thereafter bear interest as
provided herein.
FCFC shall render statements to Borrower of the Obligations, including
all principal, interest and FCFC's Costs owing, and such statements shall be
conclusively presumed to be correct and accurate and constitute an account
stated between Borrower and FCFC unless, within thirty (30) days after receipt
thereof by Borrower, Borrower notifies FCFC in writing specifying the error or
errors, if any, contained in any such statements.
AMENDMENT TO ACCOUNTS RECEIVABLE
SECURITY AGREEMENT (CONTINUED)
Except as amended hereby, all other terms and provisions of the Accounts
Receivable Security Agreement (as the same may have been amended from time to
time) shall continue in full force and effect and are hereby ratified, confirmed
and approved.
Dated this 10th day of October, 2001.
BORROWER:
Syntellect Inc., Syntellect Inc.,
a Delaware corporation a Delaware corporation
By: /S/ Xxxxxxx x. Xxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President Title: Secretary and Chief Financial Officer
Syntellect Inc., Syntellect Interactive Services, Inc.,
a Delaware corporation a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxxxx By: /S/ Xxxxxxx x. Xxxxxxx
--------------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: Vice President and Controller Title: Chief Executive Officer and President
FCFC:
First Community Financial Corporation,
an Arizona corporation
By: /S/ Xxxxx X . Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
Title: President
AMENDMENT TO ACCOUNTS RECEIVABLE
SECURITY AGREEMENT
FOR A VALUABLE CONSIDERATION, First Community Financial Corporation (FCFC) and
Syntellect Inc., a Delaware corporation and Syntellect Interactive Services,
Inc., a Georgia corporation (collectively, BORROWER) do hereby agree to amend
paragraph 1.5 and paragraph 6 of that certain Accounts Receivable Security
Agreement dated June 14, 2001 between the parties (as the same may have been
amended from time to time) in its entirety as follows:
1.5 Effective January 21, 2002, "Credit Facility" shall mean a
revolving line of credit granted by FCFC to Borrower in the amount of
$2,500,000.00, in accordance with the terms and conditions set forth in this
Agreement.
6. Affirmative Covenants. Until all Obligations of Borrower to FCFC are
fully paid and satisfied, Borrower will:
(a) At all times fully comply with all federal, state and
local laws, rules, orders or regulations pertaining to the conduct of its
business, including, but not limited to all applicable federal, state and local
environmental laws and regulations relating to the storage, usage and disposal
of hazardous substances or toxic chemicals by Borrower in its business. In this
regard, Borrower agrees to defend, indemnify and hold FCFC harmless for and
against any and all costs, claims, demands, damages including attorneys fees,
court costs, and investigatory and laboratory fees which FCFC may suffer or
incur in connection with any such violation which indemnification shall survive
the termination of this Agreement.
(b) Maintain Borrower's Books at the address set forth in this
Agreement (which is Borrower's place of business or, if it has more than one
place of business, its chief executive office) and will not, without prior
written consent of FCFC relocate its place of business (or if it has more than
one place of business, its chief executive office) or move Borrower's Books
outside the State of Arizona.
(c) Maintain a standard and modern system of accounting in
accordance with generally accepted accounting principles which contain such
information as may be requested by FCFC, and permit FCFC or any of its agents,
during Borrower's usual business hours or during the usual business hours of any
third party having control over the records of Borrower, to have access to and
have the right to examine all of Borrower's Books and in connection therewith
and permit FCFC or any of its agents to copy and make extracts therefrom.
(d) Promptly furnish to FCFC such records, data and other
information with respect to the financial condition of Borrower, the Collateral
and any guarantor, as FCFC may request from time to time, and deliver to FCFC
within 90 days after the end of each Borrower's fiscal year, a detailed report
in form satisfactory to FCFC containing a statement of the financial condition
and operation of Borrower for each such fiscal year, and within 20 days, after
demand by FCFC, deliver to FCFC copies of any financial report or statement
prepared by or for Borrower. Each such statement and report shall be reviewed or
compiled by an independent CPA or, with the consent of FCFC, prepared by an
authorized officer of Borrower certifying that such report, statement or
document delivered or caused to be delivered to FCFC is complete, correct and
thoroughly presents the financial condition of Borrower and that on the date of
said certification no event or condition exists which constitutes a breach or
event of default under this Agreement. In addition, Borrower shall deliver to
FCFC within 30 days after the end of each month, a detailed report in form
satisfactory to FCFC containing a statement of the financial condition and
operation of Borrower for each such month.
(e) Allow FCFC to possess, remove to FCFC's premises or the
premises of any agent of FCFC, copies of Borrower's Books, for so long as FCFC
may desire in connection with the enforcement of FCFC's rights under this
Agreement.
AMENDMENT TO ACCOUNTS RECEIVABLE
SECURITY AGREEMENT (CONTINUED)
(f) Notify FCFC of any material adverse change in Borrower's
financial condition.
(g) Make timely payment or deposit of all taxes (including
F.I.C.A. payments and deposits of withholding taxes) and assessments required to
be paid by Borrower and deliver to FCFC, as requested, evidence of such payment
or deposit.
(h) Pay all rent when due and otherwise abide by the terms
under which Borrower leases or occupies the premises at which the Collateral is
located; if Borrower fails to do so, FCFC may, without any obligation, pay such
rent and any sum so paid shall be part of FCFC's Costs, secured by the
Collateral and payable on demand.
(i) Cause to be paid all amounts necessary to fund, in
accordance with their terms, all pension plans presently in existence or
hereafter created and Borrower will not withdraw from participation in, permit
the termination or partial termination of, or permit the occurrence of any other
event with respect to any deferred compensation plan maintained for the benefit
of its employees under circumstances that could result in liability to the
Pension Benefit Guarantee Corporation, or any of its successors or assigns, or
to the entity which provides funds for such deferred compensation plan.
(j) Effective December 31, 2001, maintain a working capital
ratio of 1.0:1 and a net worth at least equal to $3,700,000.
(k) Maintain itself in good standing in all jurisdictions in
which Borrower is doing business, and at the request of FCFC, furnish to FCFC
evidence of its good standing in all such jurisdictions.
(l) Maintain all Collateral at the address set forth in this
Agreement or at:
- 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000
- 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxxx 000X,
Xxxxxxx, Xxxxxxx 00000
- 0 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx
00000
- 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxxxxxxx 00000
- 000 Xxxxx 000 Xxxx, Xxxxx 000, Xxxxxxxx Xxxxx,
Xxxx 00000
and will not, without the prior written consent of FCFC, move said Collateral to
any other address.
(m) Promptly deliver to FCFC all documents and instruments
relating to the Collateral, including invoices, original orders, shipping
documents, delivery receipts, as FCFC may request from time to time.
(n) Furnish to FCFC daily or less frequently as FCFC shall
permit from time to time, written schedules and reports of the status of
Borrower's Accounts in such form as shall be required by FCFC.
(o) On request of FCFC, execute and deliver to FCFC any and
all additional documents which FCFC may request from time to time to evidence
the advances made hereunder or the security interest granted hereby.
AMENDMENT TO ACCOUNTS RECEIVABLE
SECURITY AGREEMENT (CONTINUED)
Except as amended hereby, all other terms and provisions of the Accounts
Receivable Security Agreement (as the same may have been amended from time to
time) shall continue in full force and effect and are hereby ratified, confirmed
and approved.
Dated this 18th day of January, 2002.
BORROWER:
Syntellect Inc., Syntellect Inc.,
a Delaware corporation a Delaware corporation
By: /S/ Xxxxxxx x. Xxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President Title: Secretary and Chief Financial Officer
Syntellect Inc., Syntellect Interactive Services, Inc.,
a Delaware corporation a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxxxx By: /S/ Xxxxxxx x. Xxxxxxx
--------------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: Vice President and Controller Title: Chief Executive Officer and President
FCFC:
First Community Financial Corporation,
an Arizona corporation
By: /S/ Xxxxx X . Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Title: President
June 14, 2001
Phoenix, Arizona
MULTIPLE ADVANCE PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, jointly and severally, promise to
pay upon "demand" (as defined below) to the order of First Community Financial
Corporation, an Arizona corporation ("FCFC"), at its office located in Phoenix,
Arizona, or at such other place as the holder hereof may from time to time
designate in writing, such principal sum, up to the maximum amount of **THREE
MILLION and NO/100** Dollars ($3,000,000.00), as the holder hereof may advance
to or for the benefit of the undersigned in accordance with the terms of that
certain Accounts Receivable Security Agreement dated June 14, 2001 between the
undersigned and FCFC. Absent default or "demand", interest shall be charged on
the unpaid principal balance hereof, to the date of maturity on a daily basis
for the actual number of days any portion of said principal is outstanding, at
the rate (the "Note Rate") equal to the prime rate announced from time to time
by Bank One, Phoenix, Arizona (whether or not it is the lowest rate actually
charged by such bank) plus 4.50% per annum. The current Note Rate under the note
is 11.50% per annum based upon a prime rate of 7.00%. In the event such prime
rate is from time to time hereafter changed, the Note Rate of interest shall
correspondingly be adjusted as of the effective date of the prime rate change;
provided, however, that the Note Rate payable hereunder shall in no event be
less than 11.00% per annum.
Interest shall be payable monthly on the first day of each month,
commencing with the first day of the month following the initial advance
hereunder until all principal and interest hereunder have been fully paid, and
shall be fully paid at the maturity. The first interest payment shall include
all interest accrued to the date thereof. Interest shall be computed on the
basis of a 12-month, 360-day year. All obligations hereunder (including
principal, interest, costs and fees) not discharged when due or upon "demand"
shall bear interest, until paid in full, at a per annum rate equal to four
percent (4%) per annum higher than the Note Rate set forth above.
The unpaid principal balance of this obligation at any time shall be
the total amount advanced hereunder by the holder hereof, less the amount of
payments made hereon by or for the undersigned.
At the option of the holder hereof, any of the following shall
constitute a "demand" hereunder, and, upon the occurrence of any of the
following, all obligations hereunder shall, at the option of the holder hereof,
become immediately due and payable, without presentment for payment, diligence,
grace, exhibition of this Note, protest, further demand or notice of any kind,
all of which are hereby expressly waived: (i) any sum owing hereunder is not
paid as agreed; (ii) the undersigned defaults in the payment of any sum owing
under, or in the event of a event of default under, or a breach in any
representation, warranty or covenant by the undersigned as set forth in the
Accounts Receivable Security Agreement dated June 14, 2001, executed by the
undersigned and FCFC or any Rider attached thereto, as the same may be amended,
modified or extended from time to time (the "Security Agreements"); (iii) the
undersigned defaults in the payment of any sum or breaches any representation,
warranty or covenant under any other financing agreement now or hereafter
executed between the undersigned and FCFC; or (iv) the holder in good faith
believes that there is a material impairment of the prospect of repayment of its
obligations or that there is a material impairment of the value or priority of
FCFC's security interest.
No provision of this Note or any other aspect of the transaction of
which this Note is a part is intended to or shall require or permit the holder,
directly or indirectly, to take, receive, contract for or reserve, in money,
goods or things in action, or in any other way, any interest (including amounts
deemed by law to be interest, such amounts to then be deemed to be an addition
to the rate of interest agreed upon) in excess of the maximum rate of interest
permitted by law in the State of Arizona as of the date hereof. If any such
excess shall nevertheless be provided for, or be adjudicated by a federal or
state court of competent jurisdiction to be provided for, the undersigned shall
not be obligated to pay such excess, but, if paid, then such excess shall be
applied against the unpaid principal balance hereunder or, to the extent that
the principal balance has been paid in full by reason of such application or
otherwise, such excess shall be remitted to the undersigned.
June 14, 2001
Phoenix, Arizona
MULTIPLE ADVANCE PROMISSORY NOTE, CONTINUED
The undersigned hereby agrees: (a) to any and all extensions and
renewals hereof, from time to time, without notice, and that no such extension
or renewal shall constitute or be deemed a release of any obligation of any of
the undersigned to the holder hereof; (b) that the acceptance by the holder
hereof of any performance which does not comply strictly with the terms hereof
shall not be deemed to be a waiver or bar of any right of said holder, nor a
release of any obligation of any of the undersigned to the holder hereof; (c) to
offsets of any sums or property owed to them or any of them by the holder hereof
any time; (d) to pay the holder hereof upon demand any and all costs, expenses
and fees in enforcing payment hereof, including reasonable attorneys' fees,
incurred before, after or irrespective of whether suit is commenced, and, in the
event suit is brought to enforce payment hereof, such costs, expenses and fees
and all other issues in such suit shall be determined by a court sitting without
a jury; (e) that this Note shall be governed by the laws of the State of
Arizona.
The undersigned represents and warrants that the indebtedness
represented by this Note is for commercial or business purposes.
This Note is and shall be secured by a security interest granted or to
be granted by the undersigned to FCFC in certain assets of the undersigned as
set forth in the Security Agreements or pursuant to any other financing
agreement now or hereafter executed between the undersigned and FCFC.
Syntellect Inc., Syntellect Interactive Services, Inc.,
a Delaware corporation a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer and President Its: Chief Executive Officer and President
FIRST COMMUNITY
FINANCIAL CORPORATION
PROMISSORY NOTE MODIFICATION AGREEMENT
Modification #1
Date: October 10, 2001 Borrower Syntellect Inc., a Delaware corporation
Syntellect Interactive Services, Inc., a Georgia
corporation
Obligation #00011
The undersigned ("BORROWER"), is indebted to First Community Financial
Corporation ("LENDER") under that certain Multiple Advance Promissory Note,
dated June 14, 2001, in the original principal amount of $3,000,000.00, which
has been amended and modified from time to time (the "Note").
Borrower and Lender hereby agree that the Note shall be modified in the
following respects:
1. Effective October 1, 2001, the maximum line limit shall be
decreased to **TWO MILLION AND NO/100** Dollars
($2,000,000.00).
2. Effective October 1, 2001, interest shall be charged on the
unpaid principal balance hereof, to the date of maturity on a
daily basis for the actual number of days any portion of said
principal is outstanding, at the rate of 14.00% per annum;
provided, however, that this rate is based upon a prime rate
of 5.50%, the prime rate announced by Bank One, Phoenix,
Arizona (whether or not it is the lowest rate actually charged
by such bank). In the event such prime rate is from time to
time hereafter changed, the above rate of interest shall
correspondingly be adjusted as of the effective date of the
prime rate change; provided, however, that the interest rate
payable hereunder shall in no event be less than 15.00% per
annum.
All other terms and conditions remain unchanged.
FIRST COMMUNITY
FINANCIAL CORPORATION
PROMISSORY NOTE MODIFICATION AGREEMENT (CONTINUED)
Except as amended hereby, the Note (as the same may have been amended from time
to time) shall continue in full force and effect and is hereby ratified and
confirmed.
DATED this 10th day of October, 2001.
BORROWER:
Syntellect Inc., Syntellect Inc.,
a Delaware corporation a Delaware corporation
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
-------------------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President Title: Secretary and Chief Financial Officer
Syntellect Inc., Syntellect Interactive Services, Inc.,
a Delaware corporation a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
-------------------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: Vice President and Controller Title: Chief Executive Officer and President
FCFC:
First Community Financial Corporation,
an Arizona corporation
By: /S/ Xxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Xxxxxxx
Title: President
FIRST COMMUNITY
FINANCIAL CORPORATION
PROMISSORY NOTE MODIFICATION AGREEMENT
Modification #2
Date: January 18, 2002 Borrower: Syntellect Inc., a Delaware corporation
Syntellect Interactive Services, Inc.,
a Georgia corporation
Obligation #00011
The undersigned ("BORROWER"), is indebted to First Community Financial
Corporation ("LENDER") under that certain Multiple Advance Promissory Note,
dated June 14, 2001, in the original principal amount of $3,000,000.00, which
has been amended and modified from time to time (the "Note").
Borrower and Lender hereby agree that the Note shall be modified in the
following respects:
1. Effective January 21, 2002, the maximum line limit shall be
increased to **TWO MILLION FIVE HUNDRED THOUSAND AND NO/100**
Dollars ($2,500,000.00).
All other terms and conditions remain unchanged.
Except as amended hereby, the Note (as the same may have been amended from time
to time) shall continue in full force and effect and is hereby ratified and
confirmed.
DATED this 18th day of January, 2002.
BORROWER:
Syntellect Inc., Syntellect Inc.,
a Delaware corporation a Delaware corporation
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer and President Title: Secretary and Chief Financial Officer
FIRST COMMUNITY
FINANCIAL CORPORATION
PROMISSORY NOTE MODIFICATION AGREEMENT (CONTINUED)
Syntellect Inc., Syntellect Interactive Services, Inc.,
a Delaware corporation a Georgia corporation
By: /S/ Xxxxxxx X. Xxxxxxxxx By: /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------- --------------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxx
Title: Vice President and Controller Title: Chief Executive Officer and President
LENDER:
First Community Financial Corporation,
an Arizona corporation
By: /S/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
Title: President
END OF EXHIBIT (10)(IX)
