Exhibit 10.24.1
Silicon Valley Bank
Schedule to
Loan and Security Agreement
Borrower: Intek Information, Inc.
Address: 000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Date: June 10, 1999
This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-borrower of even date.
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1. CREDIT LIMIT
(Section 1.1): An amount not to exceed the lesser of: (i)
$5,000,000 at any one time outstanding (the
"Maximum Credit Limit"); or (ii) 80% of the
amount of Borrower's Eligible Receivables (as
defined in Section 8 above).
Letter of Credit Sublimit
(Section 1.5): $500,000
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2. INTEREST.
Interest Rate (Section 1.2):
A rate equal to the "Prime Rate" in effect from
time to time, plus 1.50% per annum. Interest
shall be calculated on the basis of a 360day
year for the actual number of days elapsed.
"Prime Rate" means the rate announced from time
to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by
Silicon are based, and it. is not necessarily
the best rate available at Silicon. The interest
rate applicable to the Obligations shall change
on each date there is a change in the Prime
Rate.
Minimum Monthly Interest
(Section 1.2): N/A.
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3. FEES (Section 1-4):
Loan Fee: $25,000, payable concurrently herewith.
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Silicon Valley Bank Schedule to Loan and Security Agreement
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Collateral Monitoring
Fee: $1,000 per calendar month, payable in arrears
(prorated for any partial calendar month at the
beginning and at termination of this Agreement).
Unused Line Fee. In the event, in any calendar month (or portion
thereof at the beginning and end of the term
hereof), the average daily principal balance of the
Loans outstanding during the month is less than the
amount of the Maximum Credit, Borrower shall pay
Silicon an unused line fee in an amount equal to 0.
125% per annum on the difference between the amount
of the Maximum Credit and the average daily
principal balance of the Loans outstanding during
the month, which unused line fee shall be computed
and paid monthly, in arrears, on the first day of
the following month.
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4. MATURITY DATE
(Section 6. 1): Two years from the date of this Agreement.
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5. FINANCIAL COVENANTS
(Section 5. 1): Borrower shall comply with the following
covenant(s). Compliance shall be determined as of
the end of each month, except as otherwise
specifically provided below:
Minimum Tangible
Net Worth: Borrower shall maintain a Tangible Net Worth of not
less than $8,000,000.
Definitions. For purposes of the foregoing financial covenant(s),
the following terms shall have the following
meanings:
"Liabilities" shall have the meaning ascribed
thereto by generally accepted accounting principles.
"Tangible Net Worth" shall mean the excess of total
assets over total liabilities, determined in
accordance with generally accepted accounting
principles, with the following adjustments:
(A) there shall be excluded from assets: (i)
notes, accounts receivable and other obligations
owing to the Borrower from its officers or other
Affiliates, and (ii) all assets which would be
classified as intangible assets under generally
accepted accounting principles, including without
limitation goodwill, licenses, patents,
trademarks, trade names, copyrights, capitalized
software and organizational costs, licenses and
franchises; and
(B) there shall be excluded from liabilities: all
indebtedness which is subordinated to the
Obligations under a subordination agreement in
form specified by Silicon or by language in the
instrument evidencing the indebtedness which is
acceptable to Silicon in its discretion.
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Silicon Valley Bank Schedule to Loan and Security Agreement
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6. REPORTING.
(Section 5.3):
Borrower shall provide Silicon with the following:
1. Transaction reports, schedules and assignments of all
Receivables, and schedules of collections, all on
Silicon's standard forms, by Tuesday of each week
(with respect to the preceding week), and at any time
that any Loans are requested hereunder.
2. Monthly Receivable agings, aged by invoice date,
within fifteen days after the end of each month.
3. Monthly accounts payable agings, aged by invoice
date, and outstanding or held check registers, if
any, within fifteen days after the end of each month.
4. Monthly reconciliations of Receivable agings (aged by
invoice date), transaction reports, and general
ledger, within fifteen days after the end of each
month.
5. Monthly perpetual inventory reports for the Inventory
valued on a first-in, first-out basis at the lower of
cost or market (in accordance with generally accepted
accounting principles) or such other inventory
reports as are reasonably requested by Silicon, all
within fifteen days after the end of each month.
6. Monthly unaudited financial statements, as soon as
available, and in any event within thirty days after
the end of each month.
7. Monthly Compliance Certificates, within thirty days
after the end of each month, in such form as Silicon
shall reasonably specify, signed by the Chief
Financial Officer of Borrower, certifying that as of
the end of such month Borrower was in full compliance
with all of the terms and conditions of this
Agreement, and setting forth calculations showing
compliance with the financial covenants set forth in
this Agreement and such other information as Silicon
shall reasonably request, including, without
limitation, a statement that at the end of such month
there were no held checks.
8. Quarterly unaudited financial statements, as soon as
available, and in any event within forty-five days
after the end of each fiscal quarter of Borrower.
9. Annual operating budgets (including income
statements, balance sheets and cash flow statements,
by month) for the upcoming fiscal year of Borrower
within thirty days prior to the end of each fiscal
year of Borrower.
10. Annual financial statements, as soon as available,
and in any event within 120 days following the end of
Borrower's fiscal year, certified by independent
certified public accountants acceptable to Silicon.
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7. COMPENSATION
(Section 5.5):
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Silicon Valley Bank Schedule to Loan and Security Agreement
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8. BORROWER INFORMATION:
Prior Names of
Borrower
(Section 3.2): None
Prior Trade
Names of Borrower
(Section 3.2): None
Existing Trade
Names of Borrower
(Section 3.2): Intek; Intek Teleservices.
Other Locations and
Addresses (Section 3.3): See Representations and Warranties of
Borrower dated March 4, 1999 (the
"Representations and Warranties").
Material Adverse
Litigation (Section 3.10): Borrower has filed a lawsuit against Davox
Corporation in Denver District Court
regarding the breach of contract of Davox in
the provision of certain software, equipment
and services. Davox countersued, and the
action is currently pending. Borrower
believes that if it successful, Borrower may
recover up to $500,000 from Davox, and if
Davox is successful, Borrower may owe up to
$500,000 to Davox.
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9. OTHER COVENANTS
(Section 5. 1): Borrower shall at all times comply with the
following additional covenant(s):
(1) Banking Relationship. Borrower shall at
all times maintain its primary banking
relationship with Silicon.
(2) Subsidiaries. Borrower hereby
represents and warrants that:
(a) the Spider Subsidiary (as defined in
Section 2.1 of this Agreement") and
the Regulated Subsidiaries (as
defined in Section 5.5 of this
Agreement) constitute all
subsidiaries of the Borrower; and
(b) each of the Regulated Subsidiaries is
subject to statutory net worth
requirements, pursuant to state or
federal law, which requirements would
require the assets of the Regulated
Subsidiaries to be increased, in
respect of the amount of any
obligations guaranteed by the
Regulated Subsidiaries, except that
to the extent that the states in
which Intek Insurance, Inc., holds
insurance agent licenses do not have
minimum net
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Silicon Valley Bank Schedule to Loan and Security Agreement
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worth requirements, but do have financial
information submission requirements, such
guarantee by Intek Insurance, Inc., would
likely have a material adverse effect on the
regulatory standing of Intek Insurance, Inc.
(3) Landlord Agreements. Within 90 days following
the execution of this Agreement, Borrower
shall use its best efforts to cause its
landlords, with respect to each of the
locations set forth in the Representations
and Warranties at which Borrower or its
subsidiaries maintain any assets, to execute
a Landlord Agreement on Silicon's standard
form, and Borrower shall cause said Landlord
Agreement to continue in full force and
effect at all times during the term of this
Agreement.
Borrower: Silicon:
INTEK INFORMATION. INC. SILICON VALLEY BANK
By _______________________________ By ___________________________
President or Vice President
Title ________________________
By _______________________________
Secretary or Ass't Secretary
-5-
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SILICON VALLEY BANK
Certified Resolution and Incumbency Certificate
Borrower. Intek Information, Inc.,
a corporation organized under the
laws of the State of Delaware
Date: June 2, 1999
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation borrow from Silicon Valley Bank ("Silicon"),
from time to time, such sum or sums of money as, in the judgment of the
officer or officers hereinafter authorized hereby, this corporation may
require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, directed and empowered, in the name of this corporation,
to execute and deliver to Silicon, and Silicon is requested to accept, the
loan agreements, security agreements, notes, financing statements, and other
documents and instruments providing for such loans and evidencing and/or
securing such loans, with interest thereon, and said authorized officers are
authorized from time to time to execute renewals, extensions and/or
amendments of said loan agreements, security agreements, and other documents
and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all indebtedness
of this corporation to Silicon, whether arising pursuant to this resolution
or otherwise, to grant, transfer, pledge, mortgage, assign, or otherwise
hypothecate to Silicon, or deed in trust for its benefit, any property of any
and every kind, belonging to this corporation, including, but not limited to,
any and all real property, accounts, inventory, equipment, general
intangibles, instruments, documents, chattel paper, notes, money, deposit
accounts, furniture, fixtures, goods, and other property of every kind, and
to execute and deliver to Silicon any and all grants, transfers, trust
receipts, loan or credit agreements, pledge agreements, mortgages, deeds of
trust, financing statements, security agreements and other hypothecation
agreements, which said instruments and the note or notes and other
instruments referred to in the preceding paragraph may contain such
provisions, covenants, recitals and agreements as Silicon may require and
said authorized officers may approve, and the execution thereof by said
authorized officers shall be conclusive evidence of such approval.
RESOLVED FURTHER, that Silicon may conclusively rely upon a certified copy of
these resolutions and a certificate of the Secretary or Ass't Secretary of
this corporation as to the officers of this corporation and their offices and
signatures, and continue to conclusively rely on such certified copy of these
resolutions and said certificate for all past, present and future
transactions until written notice of any change hereto or thereto is given to
Silicon by this corporation by certified mail, return receipt requested.
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Silicon Valley Bank Certified Resolution and Incumbency Certificate
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The undersigned further hereby certifies that the following persons are the
duly elected and acting officers of the corporation named above as borrower and
that the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
Xxxxxxx X'Xxxx Exec. VP & Managing Director
--------------------- ----------------------------- --------------------------
--------------------- ----------------------------- --------------------------
--------------------- ----------------------------- --------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or Assistant
Secretary on the date set forth above.
Secretary or Assistant Secretary
--------------------------------
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Silicon Valley Bank
NOTICE OF SECURITY INTEREST
June 2, 1999
Certified Mail, Return Receipt Requested
Key Bank of Colorado
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: INTEK INFORMATION, INC.
Ladies and Gentlemen:
Notice is hereby given that your above-named customer has granted a
security interest in all of its present and future deposit accounts maintained
with your institution, general and special, and of every other kind, to Silicon
Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
Please contact the undersigned at 000-000-0000, if you have any questions
about this matter.
Sincerely yours,
Silicon Valley Bank
By /s/ Xxxxx X. Xxxxx
-------------------------------
Title Vice President
-------------------------------
INTEK INFORMATION. INC.
By /s/ illegible
-------------------------------
Title Managing Director
-------------------------------
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RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Xxxxxxx Xxxxxxxxxxxx, Esq.
Xxxx, Small & Xxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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LANDLORD AGREEMENT
THIS LANDLORD AGREEMENT is made by BROOKFIELD REPUBLIC, INC. ("Owner")
whose address is ________________________ in favor of SILICON VALLEY - BANK
("Lender") with an address at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
and affects the real property described on Exhibit "A" hereto, commonly known as
000 00xx XXXXXX, XXXXXX 0000, 2300 AND 3950, XXXXXX, XXXXXXXX 00000 (the "Real
Property" or the "Premises") in connection with the Lender entering into a Loan
and Security Agreement and other agreements related thereto (hereinafter
collectively referred to as the "Agreements") with INTEK INFORMATION, INC.
(jointly and severally "Borrower"), which Agreements, among other things, were
given by Borrower to Lender for the purpose of securing the repayment of all
obligations and the performance of all duties now or hereafter owing by Borrower
to Lender, of every kind and description (collectively the "Obligations"). This
Waiver does not amend any of the terms of the Agreements and reference is made
to the Agreements for further information as to their terms.
Pursuant to the Agreements, Lender has loaned or may hereafter loan monies
to Borrower secured by, among other collateral, Borrower's now-owned and
hereafter acquired goods, merchandise, inventory, equipment, furniture,
furnishings, fixtures, trade fixtures, machinery and tools, together with all
additions, substitutions, replacements, and improvements to the same
(hereinafter referred to as "Goods"), which Goods are or are to be located on
and may be affixed to the Premises or improvements thereon.
Owner agrees as follows:
1. Goods Remain Personal Property. The Goods shall at all times be and
remain personal property, and the Goods shall not be deemed a fixture or part of
the Real Property. Owner disclaims any interest in the Goods and will not assert
any statutory or possessory lien against any of the Goods.
2. Notice of Default. Owner will send to Lender, at its address above, a
copy of any written notice Owner sends to Borrower of a default by Borrower in
the lease obligations of Borrower to Owner, at the same time as it sends such
notice to Borrower, and Owner will allow Lender, at Lender's option, thirty (30)
days from Lender's receipt of such notice in which to cure or request Borrower
to cure such default or to take possession of the Premises in accordance with
paragraph 3 below.
3. License to Lender. Owner grants Lender a license, as set forth below,
to enter into possession of the Premises to do any or all of the following with
respect to the Goods: assemble them, have them appraised, display them, sever
them, remove them, maintain them, prepare them for sale or lease, repair them,
lease them, and transfer and/or sell them at one or
more public auctions or private sales. Lender shall have the foregoing rights
for a period of up to ninety (90) days (at Lender's discretion), following
Lender obtaining possession of the Premises either by Borrower or Owner placing
Lender in possession of the Premises or abandonment of the Premises by Borrower
to Lender or otherwise, but in no event shall Lender be under any obligation to
take possession of the Premises. Any extensions of the foregoing period shall be
with the written consent of Owner. Lender shall repair, at its cost, any damage
to the Premises caused by the Lender or its agents. Owner further grants Lender
a license to enter the Premises at any time to inspect the Goods.
4. Rent Payable By Lender. If the rent payable from the Borrower to the
Owner has not been paid for a period during which Lender is in actual physical
possession of the Premises pursuant to Paragraph 3 above, then Owner may
condition Lender's right to take or keep possession of the Premises upon Lender
agreeing, in writing, to pay such rent which was payable by Owner (prorated on a
daily basis) for the actual number of days Lender is in physical possession of
the Premises, up to 90 days (or such longer period as may be agreed to in
writing between Owner and Lender). In the event Lender is only in possession of
a portion of the Premises, the rent payable by Lender shall be prorated based on
the proportion that the portion of the Premises occupied by the Lender bears to
the total Premises. No agreement by Lender to pay such rent shall be binding on
Lender unless set forth in a written agreement signed by Lender.
5. General. This Waiver and Consent shall continue until such time as all
of the Obligations have been paid and performed in full. This Waiver and Consent
shall be governed and controlled by, and interpreted under, the laws of the
State of California and shall inure to the benefit of, and be binding upon, the
successors, heirs and assigns of Owner and Lender.
DATED: _________, 1999
"Owner":
BROOKFIELD REPUBLIC, INC.
By
------------------------------
Title
---------------------------
INTEK INFORMATION, INC.
By /s/ illegible
------------------------------
Title Managing Director
---------------------------
[Add Legal Description]
STATE OF ___________________)
)ss
COUNTY OF___________________)
On _______________________, 19__, before me, _____________________________
__________________________________________________, Notary Public, personally
appeared ____________________________________________________, personally known
to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------------
(Seal)
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RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Xxxxxxx Xxxxxxxxxxxx, Esq.
Xxxx, Small & Xxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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LANDLORD AGREEMENT
THIS LANDLORD AGREEMENT is made by LIVERMORE AIRWAY BUSINESS PARK
("Owner") whose address is _____________________________________________ in
favor of SILICON VALLEY BANK ("Lender") with an address at 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000, and affects the real property described on
Exhibit "A" hereto, commonly known as 000 XXXXXXX XXX, XXXXXXXXX, XXXXXXXXXX
00000 (the "Real Property" or the "Premises") in connection with the Lender
entering into a Loan and Security Agreement and other agreements related thereto
(hereinafter collectively referred to as the "Agreements") with INTEK
INFORMATION, INC. (jointly and severally "Borrower"), which Agreements, among
other things, were given by Borrower to Lender for the purpose of securing the
repayment of all obligations and the performance of all duties now or hereafter
owing by Borrower to Lender, of every kind and description (collectively the
"Obligations"). This Waiver does not amend any of the terms of the Agreements
and reference is made to the Agreements for further information as to their
terms.
Pursuant to the Agreements, Lender has loaned or may hereafter loan monies
to Borrower secured by, among other collateral, Borrower's now-owned and
hereafter acquired goods, merchandise, inventory, equipment, furniture,
furnishings, fixtures, trade fixtures, machinery and tools, together with all
additions, substitutions, replacements, and improvements to the same
(hereinafter.referred to as "Goods"), which Goods are or are to be located on
and may be affixed to the Premises or improvements thereon.
Owner agrees as follows:
1. Goods Remain Personal Property. The Goods shall at all times be and
remain personal property, and the Goods shall not be deemed a fixture or part of
the Real Property. Owner disclaims any interest in the Goods and will not assert
any statutory or possessory lien against any of the Goods.
2. Notice of Default. Owner will send to Lender, at its address above, a
copy of any written notice Owner sends to Borrower of a default by Borrower in
the lease obligations of Borrower to Owner, at the same time as it sends such
notice to Borrower, and Owner will allow Lender, at Lender's option, thirty (30)
days from Lender's receipt of such notice in which to cure or request Borrower
to cure such default or to take possession of the Premises in accordance with
paragraph 3 below.
3. License to Lender. owner grants Lender a license, as set forth below,
to enter into possession of the Premises to do any or all of the following with
respect to. the Goods: assemble them, have them appraised, display them, sever
them, remove them, maintain them, prepare them for sale or lease, repair them,
lease them, and transfer and/or sell them at one or
more public auctions or private sales. Lender shall have the foregoing rights
for a period of lip to ninety (90) days (at Lender's discretion), following
Lender obtaining possession of the Premises either by Borrower or Owner placing
Lender in possession of the Premises or abandonment of the Premises by Borrower
to Lender or otherwise, but in no event shall Lender be under any obligation to
take possession of the Premises. Any extensions of the foregoing period shall be
with the written consent of Owner. Lender shall repair, at its cost, any damage
to the Premises caused by the Lender or its agents. Owner further grants Lender
a license to enter the Premises at any time to inspect the Goods.
4. Rent Payable By Lender. If the rent payable from the Borrower to the
Owner has not been paid for a period during which Lender is in actual physical
possession of the Premises pursuant to Paragraph 3 above, then Owner may
condition Lender's right to take or keep possession of the Premises upon Lender
agreeing, in writing, to pay such rent. which was payable by Owner (prorated on
a daily basis) for the actual number of days Lender is in physical possession of
the Premises, up to 90 days (or such longer period as may be agreed to in
writing between Owner and Lender). In the event Lender is only in possession of
a portion of the Premises, the rent payable by Lender shall be prorated based on
the proportion that the portion of the Premises occupied by the Lender bears to
the total Premises. No agreement by Lender to pay such rent shall be binding on
Lender unless set forth in a written agreement signed by Lender.
5. General. This Waiver and Consent shall continue until such time as all
of the Obligations have been paid and performed in full. This Waiver and Consent
shall be governed and controlled by, and interpreted under, the laws of the
State of California and shall inure to the benefit of, and be binding upon, the
successors, heirs and assigns of Owner and Lender.
DATED: ___________, 1999
"Owner":
LIVERMORE AIRWAY BUSINESS PARK
By
---------------------------
Title
------------------------
INTEK INFORMATION, INC.
By
---------------------------
Title Managing Director
------------------------
[Add Legal Description]
-2-
STATE OF_____________________)
)ss.
COUNTY OF____________________)
On ____________________________ 199_, before me,__________________________
________________________________________________, Notary Public, personally
appeared personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
----------------------------------
(Seal)
-3-
RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Xxxxxxx Xxxxxxxxxxxx, Esq.
Xxxx, Small & Xxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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LANDLORD AGREEMENT
THIS LANDLORD AGREEMENT is made by SOUTHLAND OFFICE ASSOCIATES, LLC
("Owner") whose address is _____________________________________________________
in favor of SILICON VALLEY BANK ("Lender") with an address at 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000, and affects the real property described on
Exhibit "A" hereto, commonly known as 00000 XXXXXXXXX XXXXX, XXXXX 000, XXXXXXX,
XXXXXXXXXX 00000 (the "Real Property" or the "Premises") in connection with the
Lender entering into a Loan and Security Agreement and other agreements related
thereto (hereinafter collectively referred to as the "Agreements") with INTEK
INFORMATION, INC. (jointly and severally "Borrower"), which Agreements, among
other things, were given by Borrower to Lender for the purpose of securing the
repayment of all obligations and the performance of all duties now or hereafter
owing by Borrower to Lender, of every kind and description (collectively the
"Obligations"). This Waiver does not amend any of the terms of the Agreements
and reference is made to the Agreements for further information as to their
terms.
Pursuant to the Agreements, Lender has loaned or may hereafter loan monies
to Borrower secured by, among other collateral, Borrower's now-owned and
hereafter acquired goods, merchandise, inventory, equipment, furniture,
furnishings, fixtures, trade fixtures, machinery and tools, together with all
additions, substitutions, replacements, and improvements to the same
(hereinafter referred to as "Goods"), which Goods are or are to be located on
and may be affixed to the Premises or improvements thereon.
Owner agrees as follows:
1. Goods Remain Personal Property. The Goods shall at all times be and
remain personal property, and the Goods shall not be deemed a fixture or part of
the Real Property. Owner disclaims any interest in the Goods and will not assert
any statutory or possessory lien against any of the Goods.
2. Notice of Default. Owner will send to Lender, at its address above, a
copy of any written notice Owner xxxxx.xx Borrower of a default by Borrower in
the lease obligations of Borrower to Owner, at the same time as it sends such
notice to Borrower, and Owner will allow Lender, at Lender's option, thirty (30)
days from Lender's receipt of such notice in which to cure or request Borrower
to cure such default or to take possession of the Premises in accordance with
paragraph 3 below.
3. License to Lender. Owner grants Lender a license, as set forth below,
to enter into possession of the Premises to do any or all of the following with
respect to the Goods: assemble them, have them appraised, display them, sever
them, remove them, maintain them, prepare them for sale or lease, repair them,
lease them, and transfer and/or sell them at one or
more public auctions or private sales. Lender shall have the foregoing rights
for a period of up to ninety (90) days (at Lender's discretion), following
Lender obtaining possession of the Premises either by Borrower or Owner placing
Lender in possession of the Premises or abandonment of the Premises by Borrower
to Lender or otherwise, but in no event shall Lender be under any obligation to
take-possession of the Premises. Any extensions of the foregoing period shall be
with the written consent of Owner. Lender shall repair, at its cost, any damage.
to the Premises caused by the Lender or its agents. Owner further grants Lender
a license to enter the Premises at any time to inspect the Goods.
4. Rent Payable By Lender. If the rent payable from the Borrower to the
Owner has not been paid for a period during which Lender is in actual physical
possession of the Premises pursuant to Paragraph 3 above, then Owner may
condition Lender's right to take or keep possession of the Premises upon Lender
agreeing, in writing, to pay such rent which was payable by Owner (prorated on a
daily basis) for the actual number of days Lender is in physical possession of
the Premises, up to 90 days (or such longer period as may be agreed to in
writing between Owner and Lender). In the event Lender is only in possession of
a portion of the Premises, the rent payable by Lender shall be prorated based on
the proportion that the portion of the Premises occupied by the Lender bears to
the total Premises. No agreement by Lender to pay such rent shall be bindin- on
Lender unless set forth in a written agreement signed by Lender.
5. General. This Waiver and Consent shall continue until such time as all
of the Obligations have been paid and performed in full. This Waiver and Consent
shall be governed and controlled by, and interpreted under, the laws of the
State of California and shall inure to the benefit of, and be binding upon, the
successors, heirs and assigns of Owner and Lender.
DATED: ________________, 2000
"Owner":
SOUTHLAND OFFICE ASSOCIATES, LLC
By_____________________________
INTEK INFORMATION, INC. Title__________________________
By____________________________________
Managing Director
Title ________________________________
[Add Legal Description]
-2-
STATE OF____________________________ )
) ss.
COUNTY OF___________________________ )
On ___________________________, 200__, before me,__________________________
_____________________________________________, Notary Public, personally
appeared personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
________________________________________
(Seal)
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RECORDING REQUESTED BY
AND WHEN RECORDED, MAIL TO:
Xxxxxxx Xxxxxxxxxxxx, Esq.
Xxxx, Small & Xxxxxx
000 Xxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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LANDLORD AGREEMENT
THIS LANDLORD AGREEMENT is made by M & S CALIFORNIA FUND, LLP ("Owner")
whose address is ___________________ in favor of SILICON VALLEY BANK ("Lender")
with an address at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, and affects
the real property described on Exhibit "A" hereto, commonly known as 0000 XXXXXX
XXXX, XXXXX 000, XXX XXXXX, XXXXXXXXXX 00000 (the "Real Property" or the
"Premises") in connection with the Lender entering into a Loan and Security
Agreement and other agreements related thereto (hereinafter collectively
referred to as the "Agreements") with INTEK INFORMATION, INC. (jointly and
severally "Borrower"), which Agreements, among other things, were given by
Borrower to Lender for the purpose of securing the repayment of all obligations
and the performance of all duties now or hereafter owing by Borrower to Lender,
of every kind and description (collectively the "Obligations"). This Waiver does
not amend any of the terms of the Agreements and reference is made to the
Agreements for further information as to their terms.
Pursuant to the Agreements, Lender has loaned or may hereafter loan monies
to Borrower secured by, among other collateral, Borrower's now-owned and
hereafter acquired goods, merchandise, inventory, equipment, furniture,
furnishings, fixtures, trade fixtures, machinery and tools, together with all
additions, substitutions, replacements, and improvements to the same
(hereinafter referred to as "Goods"), which Goods are or are to be located on
and may be affixed to the Premises or improvements thereon.
Owner agrees as follows:
1. Goods Remain Personal Property. The Goods shall at all times be and
remain personal property, and the Goods shall not be deemed a fixture or part of
the Real Property. Owner disclaims any interest in the Goods and will not assert
any statutory or possessory lien against any of the Goods.
2. Notice of Default. Owner will send to Lender, at its address above, a
copy of any written notice Owner sends to Borrower of a default by Borrower in
the lease obligations of Borrower to Owner, at the same time as it sends such
notice to Borrower, and Owner will allow Lender, at Lender's option, thirty (30)
days from Lender's receipt of such notice in which to cure or request Borrower
to cure such default or to take possession of the Premises in accordance with
paragraph 3 below.
3. License to Lender. Owner grants Lender a license, as set forth below, to
enter into possession of the Premises to do any or all of the following with
respect to the Goods: assemble them, have them appraised, display them, sever
them, remove them, maintain them, prepare them for sale or lease, repair them,
lease them, and transfer and/or sell them at one or
more public auctions or private sales. Lender shall have the foregoing rights
for a period of up to ninety (90) days (at Lender's discretion), following
Lender obtaining 0 possession of the Premises either by Borrower or Owner
placing Lender in possession of the Premises or abandonment of the Premises by
Borrower to Lender or otherwise, but in no event shall Lender be under any
obligation to take possession of the Premises. Any extensions of the foregoing
period shall be with the written consent of Owner. Lender shall repair, at its
cost, any damage to the Premises caused by the Lender or its agents. Owner
further grants Lender a license to enter the Premises at any time to inspect the
Goods.
4. Rent Payable By Lender. If the rent payable from the Borrower to the
Owner has not been paid for a period during which Lender is in actual physical
possession of the Premises pursuant to Paragraph 3 above, then Owner may
condition Lender's right to take or keep possession of the Premises upon Lender
agreeing, in writing, to pay such rent which was payable by Owner (prorated on a
daily basis) for the actual number of days Lender is in physical possession of
the Premises, up to 90 days (or such longer period as may be agreed to in
writing between Owner and Lender). In the event Lender is only in possession of
a portion of the Premises, the rent payable by Lender shall be prorated based on
the proportion that the portion of the Premises occupied by the Lender bears to
the total Premises. No agreement by Lender to pay such rent shall be binding- on
Lender unless set forth in a written agreement signed by Lender.
5. General. This Waiver and Consent shall continue until such time as all
of the Obligations have been paid and performed in full. This Waiver and Consent
shall be governed and controlled by, and interpreted under, the laws of the
State of California and shall inure to the benefit of, and be binding upon, the
successors, heirs and assigns of Owner And Lender.
DATED:______________, 1999
"Owner":
M & S CALIFORNIA FUND, LLP
By__________________________
INTEK INFORMATION, INC. Title_______________________
By______________________________
Title Managing Director
___________________________
[Add Legal Description]
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STATE OF______________________ )
) ss.
COUNTY OF_____________________ )
On________________________________ , 200_, before me, _________________________
_____________________________________________Notary Public, personally appeared
_________________________________________________________________________ ,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same. in, his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
________________________________
(Seal)
-3-
Silicon Valley Bank
NOTICE OF SECURITY INTEREST
June 2, 1999
Certified Mail, Return Receipt Requested
Key Bank of Colorado
0000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: INTEK INFORMATION, INC.
Ladies and Gentlemen:
Notice is hereby given that your above-named customer has granted a
security interest in all of its present and future deposit accounts maintained
with your institution, general and special, and of every other kind, to Silicon
Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
Please contact the undersigned at 000-000-0000, if you have any questions
about this matter.
Sincerely yours,
Silicon Valley Bank
By______________________________________
Title___________________________________
INTEK INFORMA110N. TNC.
By:_____________________________________
Managing Director
Title __________________________________
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Silicon Valley Bank
NOTICE OF SECURITY INTEREST
June 2, 1999
Certified Mail, Return Receipt Requested
Xxxxx Farm Bank
0000 xxx Xxxxxx
Xxxxxxxxx, XX 00000
Re: INTEK INFORMATION, INC.
Ladies and Gentlemen:
Notice is hereby given that your above-named customer has granted a
security interest in all of its present and future deposit accounts maintained
with your institution, general and special, and of every other kind, to Silicon
Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
Please contact the undersigned at 000-000-0000, if you have any questions
about this matter.
Sincerely yours,
Silicon Valley Bank
By _____________________________________
Title___________________________________
INTEK INFORMAIION, INC.
By
___________________________________
Title Managing Director
________________________________
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