Exhibit 10.24
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SECURITY AND LOAN AGREEMENT
(ACCOUNTS RECEIVABLE AND/OR INVENTORY)
This Agreement is entered into between DATA RACE INC.
,a Corporation
(herein called "Borrower") and IMPERIAL BANK (herein called "Bank")
1. Bank hereby commits, subject to all the terms and conditions of this
Agreement and prior to the termination of its commitment as hereinafter
provided, to make loans to Borrower from time to time in such amounts as
may be determined by Bank up to, but not exceeding in the aggregate
unpaid principal balance, the following Borrowing Base:
80.000 % of Eligible Accounts
30.000 % of the Value of Inventory
and in no event more than $ 1,500,000.00
2. The amount of each loan made by Bank to Borrower hereunder shall be
debited to the loan ledger account of Borrower maintained by Bank
(herein called "Loan Account") and Bank shall credit the Loan Account
with all loan repayments made by Borrower. Borrower promises to pay
Bank(s) the unpaid balance of Borrower's Loan Account at maturity of
November 12, 1997 and (b) on or before the tenth day of each month,
interest on the average daily unpaid balance on the Loan Account during
the immediately preceding month at the rate of One percent (1.00%) per
annum in excess of the rate of interest which Bank has announced as its
prime lending rate ("Prime Rate") which shall vary concurrently with any
change in such Prime Rate. Interest shall be computed at the above rate
on the basis of the actual number of days during which the principal
balance of the loan account is outstanding divided by 360, which shall
for interest computation purposes be considered one year. The amount of
interest payable each month by Borrower shall not be less than a minimum
monthly charge of $250.00. Bank is hereby authorized to charge
Borrower's deposit account(s) with Bank for all sums due Bank under this
Agreement.
3. Requests for loan 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.
4. As used in this Agreement, the following terms shall have the following
meanings:
A. "Accounts" means any right to payment for goods sold or
leased, or to be sold or to be leased, 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.
B. "Inventory" means all of the Borrower's goods, merchandise
and other personal property which are held for sale or
lease, including those held for display or demonstration or
out on lease or consignment or to be furnished under a
contract of service or are raw materials, work in process or
materials used or consumed, or to be used or consumed in
Borrower's business, and shall include all property rights,
patents, plans, drawings, diagrams, schematics, assembly and
display materials relating thereto.
C. "Collateral" means any and all personal 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.
D. "Eligible Accounts" means all of Borrower's Accounts
excluding, however, (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 and (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.
Eligible Accounts shall only include such accounts as Bank
in its sole discretion shall determine are eligible from
time to time.
E. "Value of Inventory" means the value of Borrower's Inventory
determined in accordance with generally accepted accounting
principles consistently applied including inventory which is
purchased to fulfill non-cancelable and contractually
guaranteed orders from IBM, TI, and NEC, and excluding,
however, the amount of progress payments, pre-delivery
payments, deposits and any other sums received by Borrower
in anticipation of the sale and delivery of inventory, all
inventory on consignment or lease to others, and all
property on consignment or lease from others to Borrower.
5. Borrower hereby assigns to Bank all Borrower's present and future
Accounts, including all proceeds due thereunder, all guaranties and
security therefore and all merchandise giving rise thereto, and hereby
grants to Bank a continuing security interest in all Borrower's
Inventory and in all proceeds and products thereof, whether now owned or
hereafter existing or acquired, including all moneys in the Collateral
Account referred to in Section 6 hereof, as security for any and all
obligations of Borrower to Bank, whether now owing or hereafter incurred
and whether direct, indirect, absolute or contingent. So long as
Borrower is indebted to Bank or Bank is committed to extend credit to
Borrower, Borrower will 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 reasonably require in order to affirm,
effectuate or further assure the assignment to Bank of the Collateral or
to give any third party, including the account debtors obligated on the
Accounts, notice of Bank's interest in the Collateral.
6. Until Bank exercises its rights to collect the Accounts and inventory
proceeds pursuant to paragraph 10, Borrower will collect with diligence
all Borrowers Accounts and Inventory proceeds, provided that no legal
action shall be maintained thereon or in connection therewith without
Bank's prior written consent which consent shall not be unreasonable
withheld. 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.
7. Until Bank exercises its right to collect the Accounts or Inventory
proceeds pursuant to paragraph 10, Borrower may continue its present
policies with respect to returned merchandise and adjustments. However,
Borrower shall immediately notify Bank of all cases which represent
material amounts in excess of $50,000 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 reposessed 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.
8. Borrower represents and warrants to Bank: (i) If Borrower is a
corporation that borrower is duly organized and existing in the State
of its incorporation and the execution, delivery and performance hereof
are within Borrower's corporate powers, have been duly authorized and
are not in conflict with law or the terms of any charter, by-law or
other incorporation papers, or of any indenture, agreement or
undertaking to which Borrower is a party or by which Borrower is found
or affected; (ii) Borrower is, or at the time the collateral becomes
subject to Bank's security interest will be, the true and lawful owner
of and has, or at the time the Collateral becomes subject to Bank's
security interest will have, good and, clear title to the Collateral,
subject only to Bank's rights therein; (iii) Each Account is, or at the
time the Account comes into existence will be, a true and correct
statement of a bona fide indebtedness incurred by the debtor named
therein in the amount of the Account for either merchandise sold or
delivered (or being held subject to Borrower's delivery instructions)
to, or services rendered, performed and accepted by, the account
debtor; (iv) That to the best of Borrower's knowledge there are or will
be no defenses, counterclaims, or setoffs which may be asserted against
the Accounts, and (v) any and all financial information, including
information relating to the Collateral, submitted by Borrower to Bank,
whether previously or in the future, is or will be true and correct.
9. Borrower will: (i) Furnish Bank from time to time such financial
statements and information as Bank may reasonably request and inform
Bank immediately upon the occurrence of a material adverse change
therein; (ii) Furnish Bank periodically, in such form and detail and at
such times as is required by the Letter of Inducement executed in
connection herewith, statements showing aging and reconciliation of the
Accounts and collections thereon, and reports as to the inventory and
sales thereof; (iii) Permit representatives of Bank to inspect the
inventory and Borrower's books and records relating to the Collateral
and make extracts therefrom at any reasonable time and to arrange for
verification of the Accounts, under reasonable procedures, acceptable
to Bank, directly with the account debtors or otherwise at Borrower's
expense; (iv) 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; (v) Reimburse Bank
upon demand for any and all legal costs, including reasonable
attorneys' fees, and other expense incurred in collecting any sums
payable by Borrower under Borrower's Loan Account or any other
obligation secured hereby, enforcing any term or provision of this
Security Agreement or otherwise or in the checking, handling and
collection of the Collateral and the preparation and enforcement of any
agreement relating thereto; (vi) Notify Bank of each location at which
the inventory is or will be kept, other than the temporary processing,
storage or similar purposes, and of any removal thereof to a new
location and of each office of Borrower at which records of Borrower
relating to the Accounts are kept; (vii) Provide, maintain and deliver
to Bank policies insuring the Collateral against loss or damage by such
risks and in such amounts, forms and companies as Bank may require and
with loss payable solely to Bank, and, in the event Bank takes
possession of the Collateral, the insurance policy or policies and any
unearned or returned premium thereon shall at the option of Bank become
the sole property of Bank, such policies and the proceeds of any other
insurance covering or in any way relating to the collateral, whether
now in existence or hereafter obtained, being hereby assigned to Bank;
(viii) Do all acts necessary to maintain, preserve and protect all
inventory, keep all inventory in good condition and repair and not to
cause any waste or unusual or unreasonable depreciation thereof, and
(ix) in the event the unpaid balance of Borrower's Loan Account shall
exceed the maximum amount of outstanding loans to which Borrower is
entitled under Section 1 hereof, Borrower shall immediately pay to
Bank, from its own funds and not from the proceeds of Collateral, for
credit to Borrower's Loan Account the amount of such excess.
10. Bank may after the occurrence of any event of default set forth in part
12 and 13 below, 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 evidence 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 acquaintances for any and all 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.
11. Until Borrower's Loan Account and all other obligations secured hereby
shall have been repaid in full, Borrower shall not sell, dispose of or
grant a security interest in any of Collateral other than to Bank or
execute any financing statements covering the Collateral in favor of
any secured party or person other than Bank.
12. Should: (i) Default be made in the payment of any obligation, or breach
be made in any warranty, statement, promise, terms or condition,
contained herein or hereby secured; (ii) Any statement or
representation made for the purpose of obtaining credit hereunder prove
materially false; (iii) Bank deem the Collateral inadequate or unsafe
or in danger of misuse; (iv) Borrower become insolvent or make an
assignment for the benefit of creditors; or (v) Any proceeding be
commended by or against Borrower under any bankruptcy, reorganization,
arrangement, readjustment of debt or moratorium law or statute; then in
any such event, Bank may, at its option and without demand first made
and without notice to Borrower, do any one or more of the following:
Borrower will have a cure period of 10 days on interest default and no
cure period on principal default. (a) Terminate its obligation to make
loans to Borrower as provided in Section 1 hereof; (b) Declare all sums
secured hereby immediately due and payable; (c) immediately take
possession of the Collateral wherever it may be found, using all
necessary force so to do, or require Borrower to assemble the
Collateral and make it available to Bank at a place designated by Bank
which is reasonably convenient to Borrower and Bank, and Borrower
waives all claims for damages due to or arising from or connected with
any such taking; (d) Proceed in the foreclosure of Bank's security
interest and sale of the Collateral in any manner permitted by law, or
provided for herein: (e) Sell, lease or otherwise dispose of the
Collateral at public or private sale, with or without having the
Collateral at the place of sale, and upon terms and in such manner as
Bank may determine, and Bank may purchase same at any such sale; (f)
Retain the Collateral in full satisfaction of the obligations secured
thereby; (g) Exercise any remedies of a secured party under the Uniform
Commercial Code. Prior to any such disposition, Bank may, at its
option, cause any of the Collateral to be repaired or reconditioned in
such manner and to such extent as Bank may deem advisable, and any
reasonable sums expended therefor by Bank shall be repaid by Borrower
and secured hereby. Bank shall have the right to enforce one or more
remedies hereunder successively or concurrently, and any such action
shall not stop or prevent Bank from pursuing any further remedy which
it may have hereunder or by law. If a sufficient sum is not realized
from any such disposition of collateral to pay all obligations secured
by this Security Agreement, Borrower hereby promises and agrees to pay
Bank any deficiency.
13. If any writ of attachment, garnishment, execution or other legal
process be issued against any property of Borrower, or if any
assessment for taxes against Borrower, other than real property, is
made by Federal or State government or any department thereof, the
obligation of Bank to make loans to Borrower as provided in Section 1
hereof shall immediately terminate and the unpaid balance of the Loan
Account, all other obligations secured hereby and all other sums due
hereunder shall immediately become due and payable without demand,
presentment or notice.
14. Borrower authorizes Bank to destroy all invoices, delivery receipts,
reports and other types of documents and records submitted to Bank in
connection with the transactions contemplated herein at any time
subsequent to four months from the time such items are delivered to
Bank.
15. Nothing herein shall in any way limit the effect of the conditions set
forth in any other security or other agreement executed by Borrower,
but each and every condition hereof shall be in addition thereto.
*16. Additional Provisions: Subject to Conditions and limitations contained
in the Credit Terms and Conditions dated
November 12, 1996
See Addendum attached
SEE ATTACHED AMENDMENT
Executed this 12th day of November, 1996
DATA RACE INC.
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(Name of Borrower)
IMPERIAL BANK BY: /s/ XXXXXXX X. XXXXXX, CFO
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(Authorized Signature and Title)
BY: /s/ XXXXXXX X. XXXXx BY:
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Title (Authorized Signature and Title)
*If none, insert "None"
