EXHIBIT 10.9
CREDIT AGREEMENT
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This Credit Agreement ("Agreement") is made and entered into on July 20, 1999,
by and between ClearCommerce Corporation, a Delaware corporation ("Borrower"),
and Imperial Bank, a California banking corporation, ("Bank").
Subject to the terms and conditions of this Agreement, any security agreement(s)
executed by Borrower in favor of Bank, any note(s) executed by Borrower in favor
of Bank, or any other agreements executed in conjunction therewith
(collectively, the "Loan Documents"), Bank shall make the loans and or advances
(individually a "Loan" and collectively "Loans") referred to below to Borrower.
In consideration of mutual covenants and conditions hereof, the parties hereto
agree as follows:
1. AMOUNT AND TERMS OF CREDIT
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1.01 Equipment Line Commitment.
(a) Equipment Line of Credit. Subject to the terms and conditions of this
Agreement, between the date hereof and May 31, 2000 (the "Draw Down Date"),
provided that no event of default then has occurred and is continuing, Bank
shall provide a non-revolving equipment line of credit (the "Equipment Line of
Credit") in an amount not to exceed $1,000,000. At the Draw Down Date, all
amounts previously drawn ("Equipment Loans") will then be due upon two years
thereafter (the "Due Date"). The proceeds of the Equipment Line of Credit shall
be used only for the purchase of new equipment.
(b) Equipment Loan Note. The interest rate, principal and interest payments,
maturity date and certain other terms of the Equipment Loan(s) will be contained
in a promissory note dated the date of this agreement, as such may be amended or
replaced from time to time.
1.02 Domestic Asset Based Line of Credit Commitment
(a) Line of Credit - Accounts Receivable Borrowing Base Constrained. Subject
to all the terms and conditions of this Agreement, provided that no event of
default then has occurred and is continuing, Bank shall upon Borrower's request,
make advances ("ABL Loans") to Borrower, from time to time and in such amounts
as Borrower shall request up to an aggregate principal amount outstanding not to
exceed:
(1) Eighty percent (80%) of Eligible Accounts, not to exceed $3,000,000 as
such Eligible Accounts may be adjusted from time to time as provided for under
Section 4.15 hereof (the "Borrowing Base") and in no event more than $3,000,000
(the "ABL Line of Credit"). If at any time or for any reason, the outstanding
principal amount of the ABL Loan Account (as defined below) is greater than the
lessor of: (x) the Borrowing Base or (y) the ABL Line of Credit, Borrower shall
immediately pay to Bank, in cash, the
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amount of such excess. Any commitment of Bank, pursuant to the terms of this
Agreement, to make ABL Loans shall expire on the ABL Maturity Date (as
hereinafter defined), subject to Bank's right to renew said commitment in its
sole and absolute discretion at Borrower's request. Any such renewal of said
commitment shall not be binding upon Bank unless it is in writing and signed by
an officer of Bank. Provided that no Event of Default (as hereinafter defined)
has occurred and is continuing, all or any portion of the ABL Loans advanced by
Bank which are repaid by Borrower shall be available for reborrowing in
accordance with the terms hereof. Borrower promises to pay to Bank the entire
outstanding unpaid principal balance (and all accrued unpaid interest thereon)
of the ABL Loan Account on the earlier of demand by Bank or July 18, 2000 ("ABL
Maturity Date").
(b) Limitation on Advance of any ABL Loans. Notwithstanding any of the
provisions contained in Section 1.02 (a) hereof, prior to any advance of a ABL
Loan, a representative of Bank shall have conducted an audit of Borrower's books
and records relating to the Accounts and Inventory and any other Collateral for
the ABL Loans and made extracts therefrom, and arranged for verification of the
Accounts, directly with the account debtors or otherwise, and of the Inventory
all with results satisfactory to Bank, the cost of such audit of which shall be
at Borrower's sole expense. Based on Bank's review of such audit, and prior to
the advance of an ABL Loan in accordance with the terms of this hereof, Bank may
adjust the Borrowing Base percentage, in its sole and reasonable discretion, as
provided for under Section 4.15 hereof.
(c) Loan Ledger Account; Use of Proceeds. The amount of each ABL Loan made
by Bank to Borrower hereunder shall be debited to the loan ledger account of
Borrower maintained by Bank for the ABL Line of Credit (herein called the "ABL
Loan Account") and Bank shall credit the ABL Loan Account with all loan
repayments in respect thereof made by Borrower. ABL Loans may only be used for
working capital.
(d) ABL Loans Interest. Borrower further promises to pay to Bank from the
date of the advance of the initial ABL Loan through the ABL Maturity Date, on or
before the 23rd day of each month, interest on the unpaid balance of the ABL
Loan Account at a rate of interest equal to one-quarter of one percent (.25%)
per annum in excess of the rate of interest which Bank has announced as its
prime lending rate (the "Prime Rate"), which shall vary concurrently with any
change in the Prime Rate, at the rate as specified in the pricing grid attached
hereto. Interest shall be computed at the above rate on the basis of the actual
number of days during which the principal balance of the ABL Loans are
outstanding divided by 360, which shall for interest computation purposes be
considered one (1) year.
(e) Application of Receipts. All sums received by Bank, whether from
Borrower or from Borrower's account debtors shall be applied to the outstanding
ABL Loan balance immediately upon receipt thereof by the Bank. The Borrower will
be charged, on a monthly basis, for the uncollected balance fees.
(f) Certain Definitions. As used herein the following terms shall have the
following meanings:
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"Accounts" means any right to payment for goods sold or leased, or rented,
or to be sold or to be leased, or to be rented, or for services rendered or to
be rendered no matter how evidenced, including accounts receivable, contract
rights, chattel paper, instruments, purchase orders, notes, drafts, acceptances,
general intangibles and other forms of obligations and receivables.
"Collateral" means any and all property of Borrower which is assigned or
hereafter is assigned to Bank as security or in which Bank now has or hereafter
acquires a security interest.
"Eligible Accounts" Eligible Accounts shall only include such accounts as
Bank in its sole discretion shall determine are eligible from time to time.
"Eligible Accounts" shall also NOT include any of the following:
(1) All Accounts under which payment is not received within 90 days from
any invoice date;
(2) All Accounts against which the account debtor or any other person
obligated to make payment thereon asserts any defense, offset, counterclaim or
other right to avoid or reduce the liability represented by the Account;
(3) Any Accounts if the account debtor or any other person liable in
connection therewith is insolvent, subject to bankruptcy or receivership
proceedings or has made an assignment for the benefit of creditors or whose
credit standing is unacceptable to Bank and Bank has so notified Borrower.
(4) Credit balances greater than 90 days from invoice date.
(5) Accounts due from a debtor if 25% or more of the aggregate amount
of accounts of such debtor have at that time remained unpaid for more then 90
days from invoice date.
(6) For accounts representing more than 25% of Borrower's total
accounts receivable, the balance in excess of the 25% is not eligible. However,
the Bank may deem, in its sole discretion, the entire amount, or any portion
thereof, eligible. On a case by case basis, Bank may permit, in its sole
discretion, concentrations up to 60% for publicly traded companies, in good
standing, with a market capitalization in excess of $250,000,000.
(7) Accounts with respect to international transactions unless insured
by an insurance company acceptable to the Bank or covered by letters of credit
issued or confirmed by a bank acceptable to the Bank. Bank, in its sole
discretion, may deem as eligible amounts due from major, publicly owned foreign
companies.
(8) Accounts with respect to which the account debtor is an officer,
director, shareholder, employee, subsidiary or affiliate of Borrower.
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(9) Accounts where the account debtor is a seller to Borrower, whereby
a potential offset (contra) exists.
(10) Consignment or guaranteed sales.
(11) Xxxx and hold accounts.
(12) Collection accounts.
(13) C.O.D. accounts.
(14) Salesmen's accounts for promotional purposes.
(15) All United States Government receivables, unless formally assigned
to the Bank.
(16) Accounts representing xxxxxxxx for service or maintenance contracts
or for inventory or equipment on rent to the account debtor.
(17) Deferred revenues.
(18) Pre-xxxxxxxx.
(g) Requests for ABL Loans. Requests for ABL Loans hereunder shall be in
writing duly executed by Borrower in a form satisfactory to Bank and shall
contain a certification setting forth the matters referred to in Section 1,
which shall disclose that Borrower is entitled to the amount of loan being
requested.
(h) Late Charge. If any installment payment, interest payment, principal
payment or principal balance due under the ABL Line of Credit is delinquent
twenty (20) or more days, Borrower agrees to pay Bank a late charge in the
amount of five percent (5%) of the payment so due and unpaid, in addition to the
payment; but nothing in this paragraph is to be construed as any obligation on
the part of the Bank to accept payment of any payment past due or less than the
total unpaid principal balance after maturity. All payments, at Bank's sole
discretion, shall be applied first to any late charges owing, then to interest
and the remainder, if any, to principal.
(i) Default Rate. If an Event of Default occurs hereunder, then during
the continuance thereof at the Bank's option, the interest rate shall be five
percent (5%) per year in excess of the rate otherwise applicable.
(j) Interest Calculations. The term "Prime Rate" shall mean the rate
that the Bank has announced as its prime lending rate, which shall vary
concurrently with any change in the Prime Rate. Interest based on the Prime Rate
shall vary concurrently with any change in the Prime Rate. All interest shall be
computed at the rate specified in any note on the basis of the actual number of
days during which
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the principal balance of the corresponding Loans are outstanding divided by 360,
which shall for interest computation purposes be considered one (1) year.
(k) Non-Formula Based Advances. Notwithstanding anything to the contrary
contained herein, so long as total advances under this Section 1.02 do not
exceed $650,000, such advances may be made without regard to the Borrowing Base.
1.03 Prior Loan(s). All loans from Bank to Borrower and other obligations
outstanding from Borrower to Bank are subject to the terms and conditions of
this Agreement and that the interest rate, payments of principal and interest
and other the terms contained in any note[s] evidencing the prior loan[s] remain
in full force and effect, and Borrower agrees to continue to make payments in
accordance with the terms of the prior note[s].
1.04 Documentation Fee, Costs and Expenses. In addition to any other
amounts due, or to become due, concurrently with the execution hereof, Borrower
agrees to pay to Bank a documentation fee in the amount of $500.00, and all
other costs and expenses incurred by the Bank in the preparation of this
Agreement, the other Loan Documents and the perfection of any security interest
granted to Bank by Borrower.
1.05 Collateral. Borrower shall grant or cause to be granted to Bank a
first priority lien on any and all personal property assets of Borrower which is
assigned or hereafter is assigned to Bank as security or in which Bank now has
or hereafter acquires a security interest or pursuant to the terms of any
security agreement, any intellectual property security agreement or otherwise as
security for all of Borrower's obligations to Bank, all as may be subject to
Section 5.03 herein.
1.06 Collection of Payments. Borrower authorizes Bank to collect all
interest, fees, costs, and/or expenses due under this Agreement by charging
Borrower's demand deposit account number 00000000 with Bank, or any other demand
deposit account maintained by Borrower with Bank, for the full amount thereof.
Should there be insufficient funds in any such demand deposit account to pay all
such sums when due, the full amount of such deficiency shall be immediately due
and payable by Borrower.
2. REPRESENTATIONS OF BORROWER
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Borrower represents and warrants that:
2.01 Existence and Rights. Borrower is a corporation, duly organized and
existing and in good standing under the laws of the state of Delaware, without
limit as to the duration of its existence. Borrower is authorized and in good
standing to do business in the state of its incorporation; Borrower has the
appropriate powers and adequate authority, rights and franchises to own its
property and to carry on its business as now conducted, and is duly qualified
and in good standing in each state in which the character of the properties
owned by it therein or the conduct of its business makes such qualification
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necessary; and Borrower has the power and adequate authority to make and carry
out this Agreement. Borrower has no investment in any other business entity
unless specified in writing to Bank.
2.02 Agreement Authorized. The execution, delivery and performance of
this Agreement and the Loan Documents are duly authorized and do not require the
consent or approval of any governmental body or other regulatory authority; are
not in contravention of or in conflict with any law or regulation or any term or
provision of Borrower's articles of incorporation or similar document as the
case may be, and this Agreement is the valid, binding and legally enforceable
obligation of Borrower in accordance with its terms; subject only to bankruptcy,
insolvency or similar laws affecting creditors rights generally.
2.03 No Conflict. The execution, delivery and performance of this
Agreement and the Loan Documents are not in contravention of or in conflict with
any agreement, indenture or undertaking to which Borrower is a party or by which
it or any of its property may be bound or affected, and do not cause any lien,
charge or other encumbrance to be created or imposed upon any such property by
reason thereof.
2.04 Litigation. Except as disclosed in writing to bank by Borrower,
there is no litigation or other proceeding pending or threatened against or
affecting Borrower which if determined adversely to Borrower or its interest
would have a material adverse effect on the financial condition of Borrower, and
Borrower is not in default with respect to any order, writ, injunction, decree
or demand of any court or other governmental or regulatory authority.
2.05 Financial Condition. The balance sheet of Borrower as of May 31,
1999, and the related profit and loss statement for the 8 month period ended as
of that date, a copy of which has heretofore been delivered to Bank by Borrower,
and all other statements and data submitted in writing by Borrower to Bank in
connection with this request for credit are true and correct, and said balance
sheet truly presents the financial condition of Borrower as of the date thereof,
and has been prepared in accordance with generally accepted accounting
principles on a basis consistently maintained. Since such date there have been
no material adverse changes in the financial condition or business of Borrower.
Borrower has no knowledge of any liabilities, contingent or otherwise, at such
date not reflected in said balance sheet, and Borrower has not entered into any
special commitments or substantial contracts which are not reflected in said
balance sheet, other than in the ordinary and normal course of its business,
which may have a materially adverse effect upon its financial condition,
operations or business as now conducted.
2.06 Title to Assets. Borrower has good title to its assets, and the same
are not subject to any liens or encumbrances other than those permitted by
Section 5.03 hereof.
2.07 Tax Status. Borrower has no liability for any delinquent state,
local or federal taxes, and, if Borrower has contracted with any government
agency, Borrower has no liability for renegotiation of profits.
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2.08 Trademarks, Patents. Borrower, as of the date hereof, possesses all
necessary trademarks, trade names, copyrights, patents, patent rights, and
licenses to conduct its business as now operated, without any known conflict
with the valid trademarks, trade names, copyrights, patents and license rights
of others.
2.09 Regulation U. None of the proceeds of any Loan shall be used to
purchase or carry margin stock (as defined within Regulation U of the Board of
Governors of the Federal Reserve system).
2.10 ERISA. All defined benefit pension plans as defined in the Employees
Retirement Income Security Act of 1974, as amended ("ERISA"), of Borrower meet,
as of the date hereof, the minimum funding standards of Section 302 of ERISA,
and no Reportable Event or Prohibited Transaction as defined in ERISA has
occurred with respect to any such plan.
2.11 Year 2000 Compliance. Borrower and its subsidiaries, as applicable,
have reviewed the areas within their operations and business which could be
adversely affected by, and have developed or are developing a program to address
on a timely basis, the Year 2000 Problem and have made related appropriate
inquiry of material suppliers and vendors, and based on such review and program,
the Year 2000 Problem will not have a material adverse effect upon its financial
condition, operations or business as now conducted. "Year 2000 Problem" means
the possibility that any computer applications or equipment used by Borrower may
be unable to recognize and properly perform date sensitive functions involving
certain dates prior to and any dates one or after December 31, 1999.
3. CONDITIONS PRECEDENT TO LOAN
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Prior to Bank being obligated to make any Loan pursuant to this
Agreement, Bank must receive all of the following, each of which must be in form
and substance satisfactory to Bank:
3.01 Promissory Note(s). Original, executed promissory note(s) as
applicable.
3.02 Security Agreement. Original, executed security agreement(s)
covering the personal property collateral securing the Loan(s).
3.03 Financing Statement. Financing statement(s) executed by Borrower and
any grantor of a security interest.
3.04 Insurance. Borrower shall have delivered to Bank evidence of
insurance coverage required pursuant to that Agreement to Provide Insurance
executed by Borrower, in form, substance, amounts, covering risks and issued by
companies satisfactory to Bank, and where required by Bank, with loss payable
endorsements in favor of Bank.
3.05 Organizational Documents. Copies of the articles of incorporation,
or similar document as the case may be, of the any Borrower.
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3.06 Authorizations. Certified copies of all action taken by any Borrower
to authorize the execution, delivery and performance of the Loan Documents.
3.07 Good Standing. Good standing certificates from the appropriate
secretary of state of the state in which any Borrower is organized and in each
state in which it is required to be qualified to do business.
3.08 Additional Documents. Such other documents as Bank may reasonably
deem necessary.
4. AFFIRMATIVE COVENANTS OF BORROWER
---------------------------------
Borrower agrees that so long as it is indebted to Bank, under borrowings, or
other indebtedness, or so long as Bank has any obligation to extend credit to
Borrower it will, unless Bank shall otherwise consent in writing:
4.01 Rights and Facilities. Maintain and preserve all rights, franchises
and other authority adequate for the conduct of its business; maintain its
properties, equipment and facilities in good order and repair; conduct its
business in an orderly manner without voluntary interruption and, if a
corporation or partnership, maintain and preserve its existence.
4.02 Use of Proceeds. Use the proceeds of the Loans only for purposes
specified in Section 1 of this Agreement.
4.03 Insurance. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property against fire
and other hazards with responsible insurance carriers to the extent usually
maintained by similar businesses and/or in the exercise of good business
judgment, and as required by that Agreement to Provide Insurance executed by
Borrower, with the Bank to be shown as Lenders Loss Payee on such policies.
4.04 Taxes and Other Liabilities. Pay and discharge, before the same
become delinquent and before penalties accrue thereon, all taxes, assessments
and governmental charges upon or against it or any of its properties, and all
its other liabilities at any time existing, except to the extent and so long as:
(a) The same are being contested in good faith and by appropriate proceedings
in such manner as not to cause any materially adverse effect upon its financial
condition or the loss of any right of redemption from any sale thereunder; and
(b) It shall have set aside on its books reserves (segregated to the extent
required by generally accepted accounting practice) deemed by it to be adequate
with respect thereto.
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4.05 Records and Reports. Maintain a standard and modern system of
accounting in accordance with generally accepted accounting principles on a
basis consistently maintained; permit Bank's representatives to have access to,
and to examine its properties, books and records at all reasonable times and
upon reasonable notice during normal business hours; and furnish Bank:
(a) Monthly Financial Statement. As soon as available, and in any event
within twenty-five (25) days after the close of each month a consolidated
balance sheet, profit and loss statement and reconciliation of Borrower's
capital balance accounts as of the close of such period and covering operations
for the portion of Borrower's fiscal year ending on the last day of such period,
all in reasonable detail and reasonably acceptable to Bank, in accordance with
generally accepted accounting principles on a basis consistently maintained by
Borrower and certified by an appropriate officer of Borrower.
(b) Annual Financial Statement. As soon as available, and in any event
within ninety (90) days after and as of the close of each fiscal year of
Borrower, a consolidated report of audit of Company, all in reasonable detail,
audited by an independent certified public accountant selected by Borrower and
reasonably acceptable to Bank, in accordance with generally accepted accounting
principles on a basis consistently maintained by Borrower and certified by an
appropriate officer of Borrower;
(c) Officer's Certificate. Within twenty-five (25) days after the end of
each month and fiscal year of Borrower, a certificate of the chief financial
officer of Borrower, stating that Borrower has performed and observed each and
every covenant contained in this Agreement to be performed by it and that no
event has occurred and no condition then exists which constitutes an event of
default hereunder or would constitute such an event of default upon the lapse of
time or upon the giving of notice and the lapse of time specified herein; or, if
any such event has occurred or any such condition exists, specifying the nature
thereof in the form of exhibit 4.05 (c) attached hereto.
(d) Audit Reports. Promptly after the receipt thereof by Borrower, copies of
any detailed audit reports submitted to Borrower by independent accountants in
connection with each annual or interim work on the accounts of Borrower made by
such accountants;
(e) Accounts Receivable And Accounts Payable Agings; Within 25 days from
each month-end, deliver to Bank a detailed accounts receivable aging reconciled
to the general ledger of Borrower, a detailed accounts payable aging reconciled
to the Borrower's general ledger. All the foregoing will be in a form and with
such detail as Bank may request from time to time.
(f) Borrowing Base Certificate. Deliver to Bank within 25 days after month-
end, a Borrowing Base Certificate.
(g) Transaction Reports. Deliver to Bank monthly transaction reports,
together with payments in kind, including Collateral activity and appropriate
loan activity, certified by an authorized signer of Borrower. monthly reports
delivered to Bank include the following Bank forms: AC-1 Accounts Receivable
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And Inventory Transaction Report, AC-1 Schedule of Accounts Receivable Assigned,
and AC-3 Schedule of Collections.
(h) List of Customers. On a quarterly basis or more frequently if requested
by Bank, provide Bank with an alphabetized list of customers including
addresses.
(i) Stockholder, Security and Exchange Commission Statements and Reports
Promptly after the same are available, copies of all such proxy statements,
financial statements and reports as Borrower or any subsidiary shall send to its
members or stockholders as appropriate, if any, and copies of all reports which
Borrower or any subsidiary may file with the Securities and Exchange Commission.
j) Other Information. Such other information relating to the affairs of
Borrower as the Bank reasonably may request from time to time.
4.06 Minimum Liquidity Ratio. Maintain at all times on a monthly basis, a
minimum Liquidity Ratio (defined as unrestricted cash and cash equivalents plus
80% of eligible trade accounts receivable less outstanding balance under the ABL
Line of Credit divided by total of Borrower's obligations to Bank hereunder) of
at least 1.50 to 1.00.
4.07 Minimum Revenue. Meet or exceed the following revenue milestones for
the following time periods:
3 months ending June 30, 1999 $1,800,000
3 months ending September 30, 1999 $2,800,000
3 months ending December 31, 1999 $1,600,000
3 months ending March 31, 2000 $4,000,000
each calendar quarter end thereafter $4,000,000
4.08 Additional Equity. Have received term sheets for new equity
investment totaling at least $4,000,000 ("New Equity") on or before September
30, 1999, and to have closed on the New Equity on or before October 31, 1999.
4.09 ERISA. Cause all defined benefit pension plans, as defined in ERISA,
of Borrower to, at all times, meet the minimum funding standards of Section 302
of ERISA, and ensure that no Reportable Event or Prohibited Transaction, as
defined in ERISA, will occur with respect to any such plan.
4.10 Laws. At all times comply with, or cause to be complied with, all
laws, statues, rules, regulations, orders and directions of any governmental
authority having jurisdiction over Borrower or Borrower's business.
4.11 GAAP. Compliance with all financial covenants shall be calculated
based on generally accepted accounting principles applied on a consistent basis
as maintained by Borrower.
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4.12 Year 2000 Compliant. Borrower shall perform all acts reasonably
necessary to ensure that (a) Borrower and any business in which Borrower holds a
substantial interest, and (b) all customers, suppliers and vendors whose
compliance is likely to be material to Borrower's business, become Year 2000
Compliant in a timely manner. Such acts shall include, without limitation,
performing a comprehensive review and assessment of all Borrower's systems and
adopting a detailed plan, with itemized budget, for the remediation, monitoring
and testing of such systems. As used in this paragraph, "Year 2000 Compliant"
shall mean, in regard to any entity, that all software, hardware, firmware,
equipment, goods or systems utilized by or material to the business operations
or financial condition of such entity, will properly perform date sensitive
functions before, during and after the year 2000. Borrower shall, immediately
upon request, provide to Agent such certifications or other evidence of
Borrower's compliance with the terms of this paragraph as Bank may from time to
time require.
4.13 Operating Accounts. Maintain all primary accounts and banking
relationship with the Bank. Maintain, or cause to be maintained, on deposit with
Bank, non-interest bearing demand deposit balances sufficient to compensate Bank
for all services provided by Bank. Balances shall be calculated after reduction
for the reserve requirement of the Federal Reserve Board and uncollected funds.
Any deficiencies shall be charged directly to the Borrower on a monthly basis.
4.14 Notices. Promptly notify Bank in writing of (i) the occurrence of
any Event of Default hereunder or any event which upon notice and lapse of time
would be an Event of Default; (ii) all litigation affecting Borrower where the
amount is $100,000 or more; any substantial dispute which may exist between
Borrower and any governmental regulatory body or law enforcement authority; any
change in Borrower's name or principal place of business; or any other matter
which has resulted or might result in a material adverse change in Borrower's
financial condition or operations.
4.15 Audits. Permit representatives of Bank to conduct audits of
Borrower's books and records relating to the Accounts, Inventory and other
Collateral and make extracts therefrom, with results satisfactory to Bank,
provided that Bank shall use its best efforts to not interfere with the conduct
of Borrower's business, and to the extent possible to arrange for verification
of the Accounts directly with the account debtors obligated thereon or
otherwise, all under reasonable procedures acceptable to Bank and at Borrower's
sole expense; Notwithstanding any of the provisions contained in Section 1.02
hereof, Borrower hereby acknowledges and agrees that upon completion of any such
audit Bank shall have the right to adjust the Borrowing Base percentage, in its
sole and reasonable discretion, based on its review of the results of such
collateral audit.
4.16 Covenants Relating to Collateral. In addition to any covenants in
any Loan Document relating to any Collateral the Borrower agrees:
(a) To execute and deliver to Bank such assignments, including Bank's standard
forms of Specific or General Assignment covering individual Accounts, notices,
financing statements, and other documents and papers as Bank may require in
order to affirm, effectuate or further assure the assignment to Bank of
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the Collateral or to give any third party, including the account debtors
obligated on the Accounts, notice of Bank's interest in the Collateral.
(b) Until Bank exercises its rights to collect the Accounts and Inventory
proceeds pursuant to Section 4.16 (e), Borrower will collect with diligence all
Borrower's Accounts and Inventory proceeds. Any collection of Accounts or
Inventory proceeds by Borrower, whether in the form of cash, checks, notes, or
other instruments for the payment of money (properly endorsed or assigned where
required to enable Bank to collect same), shall be in trust for Bank, and
Borrower shall keep all such collections separate and apart from all other funds
and property so as to be capable of identification as the property of Bank and
deliver said collections, together with the proceeds of all cash sales, daily to
Bank in the identical form received. The proceeds of such collections when
received by Bank may be applied by Bank directly to the payment of Borrower's
Loan Account or any other obligation secured hereby. Any credit given by Bank
upon receipt of said proceeds shall be conditional credit subject to collection.
Returned items at Bank's option may be charged to Borrower's general account.
All collections of the Accounts and Inventory proceeds shall be set forth on an
itemized schedule, showing the name of the account debtor, the amount of each
payment and such other information as Bank may request.
(c) That until Bank exercises its rights to collect the Accounts or Inventory
proceeds pursuant to Section 4.16 (e), Borrower may continue its present
policies with respect to returned merchandise and adjustments. However, Borrower
shall, within 25 days of the end of each month notify Bank of all cases
involving returns, repossessions, and loss or damage of or to merchandise
represented by the Accounts or constituting Inventory and of any credits,
adjustments or disputes arising in connection with the goods or services
represented by the Accounts or constituting Inventory and, in any of such
events, Borrower will immediately pay to Bank from its own funds (and not from
the proceeds of Accounts or Inventory) for application to Borrower's Loan
Account or any other obligation secured hereby the amount of any credit for such
returned or repossessed merchandise and adjustments made to any of the Accounts.
Until payment is made as provided herein or until release by Bank from its
security interest, all merchandise returned to or repossessed by Borrower shall
be set aside and identified as the property of Bank and Bank shall be entitled
to enter upon any premises where such merchandise is located and take immediate
possession thereof and remove same.
(d) To promptly notify Bank of any attachment or other legal process levied
against any of the Collateral and any information received by Borrower relative
to the Collateral, including the Accounts, the account debtors or other persons
obligated in connection therewith, which may in any way affect the value of the
Collateral or the rights and remedies of Bank in respect thereto
(e) That Bank may at any time, without prior notice to Borrower, collect the
Accounts and Inventory proceeds and may give notice of assignment to any and all
account debtors, and Borrower does hereby make, constitute and appoint Bank its
irrevocable, true and lawful attorney with power to receive, open and dispose of
all mail addressed to Borrower, to endorse the name of Borrower upon any checks
or other evidences of payment that may come into the possession of Bank upon the
Accounts or as proceeds of Inventory; to endorse the name of the undersigned
upon any document or instrument relating to the Collateral; in its name or
otherwise, to demand, xxx for, collect and give acquittances for any and all
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moneys due or to become due upon the Accounts; to compromise, prosecute or
defend any action, claim or proceeding with respect thereto; and to do any and
all things necessary and proper to carry out the purpose herein contemplated.
(f) To do all acts necessary to maintain, preserve, and protect the Inventory,
keep all Inventory in good condition and repair and not to cause any waste or
unusual or unreasonable depreciation thereof.
(g) In the event any unpaid balance of Borrower's Loan Account shall exceed the
maximum amount of outstanding Loans to which the Borrower is entitled under
Section 1 hereof, Borrower shall immediately pay to Bank for credit to
Borrower's Loan Account the amount of such excess.
5. NEGATIVE COVENANTS OF BORROWER
------------------------------
Borrower agrees that so long as it is indebted to Bank, or so long as Bank has
any obligation to extend credit to Borrower, it will not, without Bank's written
consent:
5.01 Type of Business; Management; Change in Control. Make any substantial
change in the character of its business; make any change in its executive
management; or permit the current shareholders to decrease their ownership in
Borrower.
5.02 Outside Indebtedness. Create, incur, assume or permit to exist any
indebtedness for borrowed moneys other than Loans from the Bank except
obligations now existing as shown in the financial statement dated May 31, 1999,
excluding those obligations being refinanced by Bank, or sell or transfer,
either with or without recourse, any accounts or notes receivable or any moneys
due or to become due.
5.03 Liens and Encumbrances. Create, incur, permit to exist, or assume any
mortgage, pledge, encumbrance, lien or charge of any kind upon any asset now
owned or hereafter acquired by it, other than liens for taxes not delinquent and
liens in Bank's favor and other than liens agreed to in writing by Bank.
5.04 Loans, Investments, Secondary Liabilities. Make any loans or advances
to any person or other entity other than in the ordinary and normal course of
its business as now conducted or make any investment in the securities of any
person or other entity other than the United States Government; or guarantee or
otherwise become liable upon the obligation of any person or other entity,
except by endorsement of negotiable instruments for deposit or collection in the
ordinary and normal course of its business.
5.05 Acquisition or Sale of Business; Merger or Consolidation. Purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings therefor;
or sell any assets except in the ordinary and normal course of its business as
now conducted; or sell, lease, assign, or transfer any substantial part of its
business or fixed
13
assets, or any property or other assets necessary for the continuance of its
business as now conducted, including without limitation the selling of any
property or other asset accompanied by the leasing back of the same.
5.06 Capital Expenditures. Make or incur obligations for fixed or capital
assets, which includes purchase money indebtedness or capital lease obligations
in excess of $100,000 from the date hereof until May 31, 2002 or $100,000 in any
twelve month period thereafter.
5.07 Operating Lease Expenditures. Make or incur obligations for operating
leases for real or personal property in excess of $100,000 from the date hereof
until May 31, 2002 or $100,000 in any twelve (12) month period thereafter.
5.08 Dividends Declare or pay any dividend or make any other distribution
on any of its capital stock now outstanding or hereafter issued or purchase,
redeem or retire any of such stock other than in dividends or distributions
payable in Borrower's capital stock, except for the repurchase of Borrower's
capital stock from officers, directors, employees or consultants of Borrower
upon termination of their employment with or rendering of service to Borrower.
5.09 Subordinated Liabilities. Make any payments on any Borrower's
obligation subordinated to the obligations to Bank, other than in accordance
with the provisions of any subordination agreement executed by the Bank and the
subordinated debt holder.
6. EVENTS OF DEFAULT
-----------------
The occurrence of any of the following events of default ("Events of Default")
shall, at Bank's option, terminate Bank's commitment to lend and make all sums
of principal and interest then remaining unpaid on all Borrower's indebtedness
to Bank immediately due and payable, all without demand, presentment or notice,
all of which are hereby expressly waived:
6.01 Failure to Pay. Failure to pay any installment of principal or of
interest on any indebtedness of Borrower to Bank within, five (5) days of its
due date.
6.02 Breach of Covenant. Failure of Borrower to perform any other term or
condition of this Agreement or any Loan Document binding upon Borrower.
6.03 Breach of Warranty. Any of Borrower's representations or warranties
made herein or any statement or certificate at any time given in writing
pursuant hereto or in connection herewith shall be false or misleading in any
respect.
6.04 Insolvency; Receiver or Trustee. Borrower shall become insolvent; or
admit its inability to pay its debts as they mature; or make an assignment for
the benefit of creditors; or apply for or consent to the appointment of a
receiver or trustee for it or for a substantial part of its property or
business.
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6.05 Judgments, Attachments. Any money judgment in excess of $100,000, writ
or warrant of attachment, or similar process shall be entered or filed against
Borrower or any of its assets and shall remain unvacated, unbonded or unstayed
for a period of ten (10) days or in any event later than five (5) days prior to
the date of any proposed sale thereunder.
6.06 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any bankruptcy law or any law
for the relief of debtors shall be instituted by or against Borrower and, if
instituted against it, shall not be dismissed within thirty (30) days
thereafter.
6.07 Cessation of Business. Borrower shall voluntarily suspend its business.
6.08 Adverse Change. Any change which, in the opinion of Bank, is materially
adverse to the financial condition of Borrower or any Guarantor; or should Bank,
for any reason, believe that the prospect of Borrower's payment or performance
hereunder or under any other agreement or instrument with Bank be impaired.
6.09 Other Defaults. Borrower, or any Guarantor of Borrower's obligations
to Bank, shall commit or do or fail to commit or do any act or thing which would
constitute an event of default under any of the terms of any other agreement,
document or instrument executed or to be executed by it concerning the
obligation to pay money.
6.10 Advances. Notwithstanding anything to the contrary contained herein,
Bank shall have no duty to make advances while any event of default exists
notwithstanding any cure period provided for herein.
7. MISCELLANEOUS PROVISIONS
------------------------
7.01 Failure or Indulgence Not Waiver. No failure or delay on the part of
Bank or any holder of notes issued hereunder, in the exercise of any power,
right or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. All
rights and remedies existing under this Agreement or any note (s) issued in
connection with a Loan that Bank may make hereunder, are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
7.02 Counterparts; Entire Agreement. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes any prior agreements, written or oral, with respect thereto.
15
7.03 Attorney's Fees. Borrower will pay promptly to Bank without demand
after notice, with interest thereon from the date of expenditure at the rate
applicable to the Loan, reasonable attorneys' fees and all costs and expenses
paid or incurred by Bank in collecting or compromising the Loan after the
occurrence of an Event of Default, whether or not suit is filed. If suit is
brought to enforce any provision of this Agreement, the prevailing party shall
be entitled to recover its reasonable attorneys' fees and court costs in
addition to any other remedy or recovery awarded by the court.
7.04 Additional Remedies. The rights, powers and remedies given to Bank
hereunder shall be cumulative and not alternative and shall be in addition to
all rights, powers and remedies given to Bank by law against Borrower or any
other person, including but not limited to Bank's rights of setoff or banker's
lien.
7.05 Inurement. The benefits of this Agreement shall inure to the successors
and assigns of Bank and the permitted successors and assigns of Borrower.
7.06 Applicable Law. This Agreement and all other agreements and instruments
required by Bank in connection therewith shall be governed by and construed
according to the laws of the state of California, to the jurisdiction of whose
courts the parties hereby agree to submit.
7.07 Offset. In addition to and not in limitation of all rights of offset
that Bank or other holder of the Loan may have under applicable law, Bank or
other holder of any note issued hereunder shall, upon the occurrence of any
Event of Default or any event which with the passage of time or notice would
constitute such an Event of Default, have the right to appropriate and apply to
the payment of the Loan any and all balances, credits, deposits, accounts or
monies of Borrower then or thereafter with Bank or other holder, within ten (10)
days after the Event of Default, and notice of the occurrence of any Event of
Default by Bank to Borrower.
7.08 Severability. Should any one or more provisions of the Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
7.09 Time of the Essence. Time is hereby declared to be of the essence of
this Agreement and of every part hereof.
7.10 Accounting. All accounting terms shall have the meanings applied under
generally accepted accounting principles unless otherwise specified.
7.11 Reference Provision.
(a) Other than (i) nonjudicial foreclosure and all matters in connection
therewith regarding security interests in real or personal property; or (ii) the
appointment of a receiver, or the exercise of other provisional remedies (any
and all of which may be initiated pursuant to applicable law), each controversy,
dispute or claim between the parties arising out of or relating to this Credit
Agreement, any security agreement executed by Borrower in favor of Bank or
any note executed by Borrower in favor of Bank or
16
any other agreement or instrument issued in favor of Bank by Borrower
(collectively in this Section, the "Agreement") which controversy, dispute or
claim is not settled in writing within thirty (30) days after the "Claim Date"
----------
(defined as the date on which a party subject to this Agreement gives written
notice to all other parties that a controversy, dispute or claim exists), will
be settled by a reference proceeding in California in accordance with the
provisions of Section 638 et seq. of the California Code of Civil Procedure, or
-- ---
their successor section ("CCP"), which shall constitute the exclusive remedy for
---
the settlement of any controversy, dispute or claim concerning this Agreement,
including whether such controversy, dispute or claim is subject to the reference
proceeding and except as set forth above, the parties waive their rights to
initiate any legal proceedings against each other in any court or jurisdiction
other than the Superior Court in the County where the Real Property, if any, is
located or Los Angeles County if none (the "Court"). The referee shall be a
retired Judge of the Court selected by mutual agreement of the parties, and if
they cannot so agree within forty-five (45) days after the Claim Date, the
referee shall be promptly selected by the Presiding Judge of the Court (or his
representative). The referee shall be appointed to sit as a temporary judge,
with all of the powers for a temporary judge, as authorized by law, and upon
selection should take and subscribe to the oath of office as provided for in
Rule 244 of the California Rules of Court (or any subsequently enacted Rule).
Each party shall have one peremptory challenge pursuant to CCP (S)170.6. The
referee shall (a) be requested to set the matter for hearing within sixty (60)
days after the date of selection of the referee and (b) try any and all issues
of law or fact and report a statement of decision upon them, if possible, within
ninety (90) days of the Claim Date. Any decision rendered by the referee will be
final, binding and conclusive and judgment shall be entered pursuant to CCP
(S)644 in any court in the state of California having jurisdiction. Any party
may apply for a reference proceeding at any time after thirty (30) days
following notice to any other party of the nature of the controversy, dispute or
claim, by filing a petition for a hearing and/or trial. All discovery permitted
by this Agreement shall be completed no later than fifteen (15) days before the
first hearing date established by the referee. The referee may extend such
period in the event of a party's refusal to provide requested discovery for any
reason whatsoever, including, without limitation, legal objections raised to
such discovery or unavailability of a witness due to absence or illness. No
party shall be entitled to "priority" in conducting discovery. Depositions may
be taken by either party upon seven (7) days written notice, and request for
production or inspection of documents shall be responded to within ten (10) days
after service. All disputes relating to discovery which cannot be resolved by
the parties shall be submitted to the referee whose decision shall be final and
binding upon the parties. Pending appointment of the referee as provided herein,
the Superior Court is empowered to issue temporary and/or provisional remedies,
as appropriate.
(b) Except as expressly set forth in this Agreement, the referee shall
determine the manner in which the reference proceeding is conducted including
the time and place of all hearings, the order of presentation of evidence, and
all other questions that arise with respect to the course of the reference
proceeding. All proceedings and hearings conducted before the referee, except
for trial, shall be conducted without a court reporter except that when any
party so requests, a court reporter will be used at any hearing conducted before
the referee. The party making such a request shall have the obligation to
arrange for and pay for the court reporter. The costs of the court reporter at
the trial shall be borne equally by the parties.
(c) The referee shall be required to determine all issues in accordance with
existing case law and the statutory laws of the state of California. The rules
of evidence applicable to proceedings at law in the state
17
of California will be applicable to the reference proceeding. The referee shall
be empowered to enter equitable as well as legal relief, to provide all
temporary and/or provisional remedies and to enter equitable orders that will be
binding upon the parties. The referee shall issue a single judgment at the close
of the reference proceeding which shall dispose of all of the claims of the
parties that are the subject of the reference. The parties hereto expressly
reserve the right to contest or appeal from the final judgment or any appealable
order or appealable judgment entered by the referee. The parties hereto
expressly reserve the right to findings of fact, conclusions of laws, a written
statement of decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference proceeding
under this provision.
(d) In the event that the enabling legislation which provides for appointment
of a referee is repealed (and no successor statute is enacted), any dispute
between the parties that would otherwise be determined by the reference
procedure herein described will be resolved and determined by arbitration. The
arbitration will be conducted by a retired judge of the Court, in accordance
with the California Arbitration Act, (S)1280 through (S)1294.2 of the CCP as
amended from time to time. The limitations with respect to discovery as set
forth hereinabove shall apply to any such arbitration proceeding.
7.12 This Agreement may be modified only by a writing signed by all parties
hereto.
This Agreement is executed on behalf of the parties by duly authorized officers
as of the date first above written.
IMPERIAL BANK CLEARCOMMERCE CORPORATION
("Bank") ("Borrower")
By:________________________ By:_____________________________
Its:________________________ Its:____________________________
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