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EXHIBIT 10.15
ACCOUNTS RECEIVABLE AGREEMENT
THIS ACCOUNTS RECEIVABLE AGREEMENT ("Agreement") made between Digital
Lightwave, Inc. a corporation, having its principal place of business at 00000
Xxxxxxxxx Xxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Pinellas, State of Florida,
33760 organized under the laws of the State of Delaware and any division, trade
style, successor or successors in interest, hereinafter referred to as SELLER,
and Bankers Capital a division of EAB Leasing Corp. having its principal
place of business at 0000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxx of Xxxx, State
of Illinois, hereinafter referred to as PURCHASER.
1. PURCHASE OF ACCOUNTS. SELLER for and in consideration of the sums set
forth in the annexed Schedule "A" (such Schedule "A" as the same may be
supplemented or added to from time to time being hereinafter called Schedule
"A"), and in accordance with the terms set forth in Schedule "B", and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, does hereby sell, assign and transfer to the PURCHASER,
its successors and assigns, all of SELLER'S right, title and interest in and
to SELLER'S accounts receivables set forth in Schedule "A" which is made a part
hereof and all monies due or which may become due upon such accounts
receivables. SELLER authorizes PURCHASER to insert in Schedule "A" required
accounts receivables information whenever accounts receivables are subsequently
purchased. "Accounts" shall be deemed to include, without limitation, all
references herein to account(s), account(s) receivable(s) and receivable(s).
2. POWER OF ATTORNEY. SELLER does hereby irrevocably appoint the PURCHASER, its
successors and assigns, its true and lawful attorney, for SELLER, and in
SELLER'S name and stead, but for PURCHASER'S benefit, (a) to sell, assign,
transfer, set over, pledge, compromise, or discharge the whole, or any part, of
such accounts receivables; (b) to do all acts and things necessary or proper in
furtherance of any such purposes; (c) to ask, collect, receive and xxx, in its
own name, for the monies due or which may become due, upon such accounts
receivables; and (d) to substitute one person, or more, with like powers,
hereby ratifying and confirming all that the PURCHASER, or its substitute or
substitutes, shall lawfully do by virtue of this sale, assignment and transfer.
SELLER authorizes and directs PURCHASER to make, at SELLER'S expense, without
the need for SELLER'S signature thereon, whatever financing statements or
security agreement filings PURCHASER deems necessary in order to protect its
security interest.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. To induce PURCHASER to purchase
the accounts receivables and to render the services available to SELLER, and
with full knowledge that the truth and accuracy of the following are being
relied upon by the PURCHASER in the purchase and remittance for the accounts
receivables acceptable to PURCHASER, the SELLER represents, warrants, covenants
and agrees that:
(a) SELLER, if a corporation, is presently in good standing in its state of
incorporation;
(b) SELLER is the sole and absolute owner of each account receivable set forth
in Schedule "A" and has full legal right to make said sale, assignment and
transfer thereof;
(c) The correct amount of each account receivable is as set forth in Schedule
"A" and is not in dispute;
(d) The payment of each account receivable is not contingent upon the
fulfillment of any obligations or contract, past or future, and any and all
obligations required of the SELLER have been fulfilled as of the date of
this Agreement;
(e) Each account receivable set forth in Schedule "A" is based on an actual sale
and delivery of goods and/or services actually rendered by SELLER, 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;
(f) There are no defenses, offsets, or counterclaims against any of the accounts
receivables, and no agreement has been made under which SELLER'S customer
(hereinafter referred to as "Account Debtor") may claim any deduction or
discount, except as otherwise stated in any of the accounts receivables set
forth in Schedule "A";
(g) Each account receivable set forth in Schedule "A" shall be the property of
the PURCHASER and shall be collected by 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 monies so received in trust for
the benefit of PURCHASER, and shall promptly endorse, transfer and deliver
the same to PURCHASER in the exact form as received by SELLER;
(h) PURCHASER shall have he right of endorsement and also the right to require
endorsement by SELLER on all payments received in connection with each
account receivable set forth in Schedule "A";
(i) SELLER, and to SELLER'S best knowledge, warrants that each Account Debtor
set forth in Schedule "A" is not insolvent as that term is defined pursuant
to the Federal Bankruptcy Act and the Uniform Commercial Code;
(j) Each Account Debtor named in Schedule "A" will not object to the payment
for, or the quality, or the quantity of, the subject matter of the account
receivable and is liable for the amount referred to above in Paragraph 3(c)
subject to the provisions in Paragraph 4;
(k) Each Account Debtor set forth in Schedule "A" shall be promptly notified by
SELLER after acceptance by PURCHASER that the account receivable has been
transferred to and is payable to PURCHASER;
(l) SELLER'S place of business and the place where the records concerning all
accounts receivables herein referred to are kept is the one set forth at the
beginning of this Agreement. 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;
(m) All accounts receivables forwarded to PURCHASER and deemed acceptable to
PURCHASER after the date hereof, and thereby forming part of Schedule "A",
shall comply with each and every one of the foregoing representations,
warranties, covenants and agreements referred to above in this Paragraph 3
as supplemented pursuant to Paragraph
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SELLER'S PURCHASER'S
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1 hereof.
4. ADJUSTMENTS. In the event of a breach and/or dispute of any of the
representations, warranties, covenants and agreements contained in this
Agreement, including, but not limited to, a dispute between the SELLER and any
Account Debtor set forth in Schedule "A", SELLER shall promptly advise PURCHASER
and shall, subject to the PURCHASER'S prior approval, adjust such disputes and
advise of any such adjustment, and PURCHASER shall have the right at any time to
chargeback to SELLER'S account the amount of any allowance, return of an account
receivable, full payment of which is delayed or refused by an asserted
counterclaim, defense, or offset by the Account Debtor, plus any expenses
incurred by PURCHASER, together with interest from the date of purchase of the
account in dispute. Unless reassigned to SELLER, PURCHASER shall remain the
absolute owner of such account receivable and any rejected, returned, or
recovered personal property, and shall have the right to take possession thereof
at anytime, but if such possession is not taken, SELLER is to resell it for
PURCHASER'S account with the proceeds made payable to PURCHASER.
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SELLER'S PURCHASER'S
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5. SECURITY INTEREST. SELLER hereby grants to PURCHASER a present security
interest in all presently owned or hereafter acquired (a) accounts, (b) accounts
receivables, (c) contract rights, (d) equipment, (e) chattel paper, (f) general
intangibles, (g) instruments, (h) inventory, and all proceeds of all of the
foregoing. The security interest and assignment include SELLER's rights to any
returned personal property. As such owners and in addition to PURCHASER'S rights
under the Uniform Commercial Code, PURCHASER shall have all the rights of an
unpaid SELLER, including the rights of replevin, between the parties hereto, as
returned personal property. This security interest is granted to secure the
performance of the foregoing representations, warranties, covenants and
agreements of SELLER contained in this Agreement with respect to all accounts
set forth in the annexed Schedule "A" as the same may be supplemented from time
to time as provided by Paragraph 1 hereof as well as all other obligations of
SELLER under this Agreement. With respect to an account set forth in Schedule
"A" as supplemented pursuant to Paragraph 1 hereof, upon a breach of any of the
Paragraph 3 representations, warranties, agreements and covenants, and to the
extent such accounts remain unpaid, PURCHASER may exercise, at its sole option,
any and all rights with respect to the collateral, of a secured creditor under
the provisions of Article 9 of the Uniform Commercial Code, including the right
to realize upon said collateral as PURCHASER may determine. SELLER will
indemnify, hold harmless and protect PURCHASER against liability, loss or
expense caused by or arising out of the rejection of personal property or
services by any Account Debtor named in Schedule "A" or alleged counterclaims,
defenses or offsets of every kind. SELLER agrees to sign any such financing
statement(s) in a form satisfactory to PURCHASER, which PURCHASER may at any
time desire to file in order to protect PURCHASER's security interest. SELLER
further agrees to pay to PURCHASER any and all costs, plus reasonable attorneys'
fees in enforcing the terms of this Agreement in the event of a breach, as well
as fees and costs incurred in connection with a bankruptcy proceeding including,
but not limited to, any objections or disputes, or if it is necessary for
PURCHASER to retain the services of a lawyer to protect its rights and
interests.
6. PAYMENT. Upon acceptance of this Agreement by PURCHASER, PURCHASER further
agrees upon collection in full of each account set forth in Schedule "A" to
promptly pay over the sum corresponding to each invoice set forth in Schedule
"A" less any amount previously paid by PURCHASER to SELLER for said account,
less (a) any deduction or discount provided for in Paragraph 3 (f); and (b) any
chargebacks provided for by Paragraph 4; and (c) any indemnification provided
for by Paragraph 5 and less (d) the amount as set forth in accordance with
Paragraphs 3, 7, 8, 9, 10, 11, 12, and 13 in the annexed Schedule "B". SELLER
shall be estopped to deny the accuracy of any and all written statements of
account sent SELLER by PURCHASER unless SELLER notifies PURCHASER of any
discrepancies within thirty (30) days of receipt of said statements of account
in writing. Said notices must set forth any differences between said statement
and SELLER'S records.
7. ACCOUNT COLLECTION SERVICES. Since certain Account Debtors require or
prefer that all of SELLER'S accounts receivables be paid to the same address
and/or party. PURCHASER and SELLER agree that PURCHASER shall collect all such
accounts receivables whether owned by SELLER or PURCHASER, and PURCHASER agrees
to remit the amount of the accounts receivables it receives and does not own,
subject to PURCHASER'S rights as a secured party, to SELLER after deducting a
handling fee of N/A% of such amounts received. It is understood and agreed by
SELLER that this Paragraph does not impose any affirmative duty on PURCHASER to
do any act other than to turn over such amounts.
8. SELLER agrees, upon request by PURCHASER, to furnish PURCHASER with all
financial information of SELLER, including, but not limited to, Tax Return
Forms 940 and 941, and evidence of payment of the taxes, as well as any other
information and documents as PURCHASER may reasonably request from time to time.
9. This Agreement shall be construed and enforced in accordance with, and the
rights of the parties shall be governed by, the laws of the State of Illinois.
The parties consent to the exclusive personal jurisdiction and venue of any
federal or state court located in Xxxx County, Illinois and waive trial by jury.
10. NOTICES. All notices, declarations, requests, consents and other
communications given hereunder or in connection herewith, or with the
obligations secured hereby, shall be in writing and shall be deemed to have
been given when deposited or delivered in the United States mail, registered or
certified, postage prepaid, addressed to the SELLER or PURCHASER at its
address stated above, or at such other address as any such party may
hereinafter specify by written notice to the other.
11. SEVERABILITY. Any provision(s) of this Agreement which is prohibited or
unenforceable in any jurisdiction shall be, as to such jurisdiction,
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision(s) in any other jurisdiction.
12. SUCCESSORS AND ASSIGNS. SELLER shall not alienate, assign, pledge,
hypothecate or otherwise encumber, sell or transfer any of its right, title or
interest in, to or under any of the accounts receivables, as defined in
Paragraph 1 and further described in Schedule "A", as amended from time to time
and the Collateral described in Paragraph 5, without the prior written consent
of PURCHASER, which consent may be denied or granted in PURCHASER'S sole
discretion, and subject to such terms and conditions as the PURCHASER may then
specify. PURCHASER may, at its option, assign this Agreement and all or part of
the monies due it to a third party. SELLER, upon receiving notice of any such
assignment, agrees to abide thereby and make payments or direct SELLER'S
customers and Account Debtors to make payment as may therein be directed. In
the event of any such full or partial assignment by PURCHASER, SELLER shall
have no recourse against PURCHASER'S Assignee. SELLER agrees that any claim
which may arise by SELLER shall be made against PURCHASER only and waives any
rights it may have against PURCHASER'S Assignee.
13. Schedules "A", "B", "C", "D" and "E" are attached hereto and made a part
hereof.
IN WITNESS WHEREOF, SELLER and PURCHASER have as of the _____day of
December, 1998 caused these presents to be duly signed by their respective
authorized representatives, attested to, and do hereby appoint their
respective authorized representatives their true and lawful attorneys-in-fact
to acknowledge and deliver these presents.
DIGITAL LIGHTWAVE, INC.
A DELAWARE CORPORATION BY:
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BANKERS CAPITAL a division of
EAB Leasing Corp.
NAME:XXXXX X. XXXX A Pennsylvania Corporation
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TITLE:Chairman of the Board, President BY:________________________
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and Chief Executive Officer
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ATTEST: NAME:______________________
(Assistant) Secretary TITLE:_____________________
ATTEST:
(Assistant) Secretary
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SCHEDULE "B"
1. This Agreement will be based on a six (6) month renewable contract for
$2,000,000.00 per month effective as of the date hereof, and unless
PURCHASER/SELLER receives written notice from SELLER/PURCHASER at least thirty
(30) days prior to the end of the contract period, this Agreement will
automatically and continuously renew for a like period under the same terms and
conditions as provided herein. The rights and obligations of both SELLER and
PURCHASER with respect to all accounts purchased hereunder shall survive any
termination or non-renewal of this Agreement.
2. The amounts advanced periodically by PURCHASER to SELLER will be based on
the value of the accounts receivables from SELLER'S customers and Account
Debtors or contracts approved by PURCHASER and purchased periodically from
SELLER and will not exceed 80% of such receivables, or a total advance
outstanding of $2,900,000.00. PURCHASER reserves the right to reject any
accounts receivables at any time for credit and/or account debtor concentration
reasons.
3. PURCHASER shall be entitled to collect an interest rate equivalent amount
on funds advanced to SELLER based upon the prime rate of interest as published
from time to time in the Wall Street Journal, plus 1.5%, on a 360-day basis.
4. This Agreement is subject to receipt of the following documents:
(a) Any other document which PURCHASER may from time to time reasonably
request.
5. This Agreement may not be assigned by SELLER without the PURCHASER'S
express written consent, which consent may be withheld at PURCHASER'S sole
discretion.
6. This Agreement may not be changed orally; all changes must be in writing
and signed by both parties.
7. SELLER agrees to pay a wire transfer charge of $20.00 per wire.
8. The following Fee Schedule will apply to the face value of accounts
receivables purchased hereunder.
If Collected Within Net Fee due PURCHASER
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1 to 45 days 1.25%
46 to 60 days 1.75%
61 to 75 days 2.25%
76 to 90 days 2.75%
9. All accounts receivables which are unpaid after ninety (90) days from the
date of purchase are subject to chargeback at PURCHASER'S sole discretion.
10. For any account receivable which is unpaid and ninety (90) days past the
date of purchase, the net fee shall increase by 1.0% for each ten (10) days or
fraction thereof it remains unpaid.
11. All invoices under $N/A will have an additional fee of N/A%
12. In the event the amount advanced to SELLER by PURCHASER exceeds the
percentage as stated in Paragraph 2 above, for whatever reason, PURCHASER shall
have the right to:
(a) Chargeback the amount exceeding said percentage to SELLER; or
(b) Deduct the amount exceeding said percentage from any funds received
by PURCHASER; or
(c) Deduct the amount exceeding said percentage from any future advance;
or
(d) Avail itself of any other remedy provided for in this Agreement or as
provided by law.
13. Notwithstanding anything to the contrary contained herein SELLER
acknowledges and agrees that it will pay to PURCHASER a guaranteed minimum
monthly fee in the amount of $10,000.00 for and during each and every month of
the contract period and monthly thereafter until SELLER's obligations to
PURCHASER with respect to all accounts receivables purchased hereunder have
been fully satisfied.
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14. Notwithstanding anything to the contrary contained herein each Schedule A
may be settled in bulk by applying all sums received by PURCHASER for a specific
Schedule A to any amount outstanding on said specific Schedule A, after which
any remaining sum shall be paid over to SELLER as provided for herein.
Furthermore, in the event SELLER discontinues selling to PURCHASER accounts
receivables hereunder or terminates this Agreement as provided for herein,
PURCHASER has the right to settle in bulk all Schedule A's collectively and
simultaneously in the aforementioned manner.
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IN WITNESS WHEREOF, SELLER and PURCHASER have as of ___ day of ____, 19__
caused these presents to be duly signed by their respective authorized
representatives, attested to, and do hereby appoint their respective authorized
representatives their true and lawful attorneys-in-fact to acknowledge and
deliver these presents.
Digital Lightwave, Inc. BANKERS CAPITAL a division of
EAB Leasing Corp.
A Delaware Corporation A Pennsylvania Corporation
BY: BY:
________________________________________ _________________________
NAME: Xxxxx X. Xxxx NAME:
_____________________________________ _______________________
TITLE: Chairman of the Board, President and TITLE:
_____________________________________ _______________________
Chief Executive Officer
_____________________________________
ATTEST: ATTEST:
(Assistant) Secretary _____________________ (Assistant) Secretary _______
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