CONTINUING SECURITY AGREEMENT: RIGHTS TO PAYMENT
Exhibit 10.25
CONTINUING SECURITY AGREEMENT:
RIGHTS TO PAYMENT
RIGHTS TO PAYMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the undersigned STARTEK USA, INC.,
or any of them (“Debtor”), hereby grants and transfers to XXXXX FARGO BANK, NATIONAL ASSOCIATION
(“Bank”) a security interest in all accounts, deposit accounts, chattel paper (whether electronic
or tangible), instruments, promissory notes, documents, general intangibles, payment intangibles,
software, letter of credit rights, health-care insurance receivables and other rights to payment
(collectively called “Collateral”), now existing or at any time hereafter, and prior to the
termination hereof, arising (whether they arise from the sale, lease or other disposition of
inventory or from performance of contracts for service, manufacture, construction, repair or
otherwise or from any other source whatsoever), including all securities, guaranties, warranties,
indemnity agreements, insurance policies, supporting obligations and other agreements pertaining to
the same or the property described therein, and in all goods returned by or repossessed from
Debtor’s customers, together with whatever is receivable or received when any of the Collateral or
proceeds thereof are sold, collected, exchanged or otherwise disposed of, whether such disposition
is voluntary or involuntary, including without limitation, all rights to payment, including
returned premiums, with respect to any insurance relating to any of the foregoing, and all rights
to payment with respect to any claim or cause of action affecting or relating to any of the
foregoing (hereinafter called “Proceeds”).
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment and performance of:
(a) all present and future Indebtedness of Debtor to Bank; (b) all obligations of Debtor and rights
of Bank under this Agreement; and (c) all present and future obligations of Debtor to Bank of other
kinds. The word “Indebtedness” is used herein in its most comprehensive sense and includes any and
all advances, debts, obligations and liabilities of Debtor, or any of them, heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether
due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined,
including under any swap, derivative, foreign exchange, hedge, deposit, treasury management or
other similar transaction or arrangement, and whether Debtor may be liable individually or jointly
with others, or whether recovery upon such Indebtedness may be or hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the performance of all obligations of
Debtor to Bank, including without limitation, the payment of all Indebtedness of Debtor to Bank,
and the termination of all commitments of Bank to extend credit to Debtor, existing at the time
Bank receives written notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans hereunder. Any money
received by Bank in respect of the Collateral may be deposited, at Bank’s option, into a
non-interest bearing account over which Debtor shall have no control, and the same shall, for all
purposes, be deemed Collateral hereunder.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to Bank that: (a) Debtor’s
legal name is exactly as set forth on the first page of this Agreement, and all of Debtor’s
organizational documents or agreements delivered to Bank are complete and accurate in every
respect; (b) Debtor is the owner and has possession or control of the Collateral and Proceeds; (c)
Debtor has the exclusive right to grant a security interest in the Collateral and Proceeds; (d) all
Collateral and Proceeds are genuine, free from liens, adverse claims, setoffs, default, prepayment,
defenses and conditions precedent of any kind or character, except the lien created hereby or as
otherwise agreed to by Bank, or as heretofore disclosed by Debtor to Bank, in writing; (e) all
statements contained herein and, where applicable, in the Collateral are true and complete in all
material respects; (f) no financing statement covering any of the Collateral or Proceeds, and
naming any secured party other than Bank, is on file in any public office; (g) all persons
appearing to be obligated on Collateral and Proceeds have authority and capacity to contract and
are bound as they appear to be; (h) all property subject to chattel paper has been properly
registered and filed in compliance with law and to perfect the interest of Debtor in such property;
and (i) all Collateral and Proceeds comply with all applicable laws concerning form, content and
manner of preparation and execution, including where applicable Federal Reserve Regulation Z and
any State consumer credit laws.
6. COVENANTS OF DEBTOR
(a) Debtor agrees in general: (i) to pay Indebtedness secured hereby when due; (ii) to
indemnify Bank against all losses, claims, demands, liabilities and expenses of every kind caused
by property subject hereto; (iii) to permit Bank to exercise its powers; (iv) to execute and
deliver such documents as Bank deems necessary to create, perfect and continue the security
interests contemplated hereby; (v) not to change its name, and as applicable, its chief executive
office, its principal residence or the jurisdiction in which it is organized and/or registered
without giving Bank prior written notice thereof; (vi) not to change the places where Debtor keeps
any Collateral or Debtor’s records concerning the Collateral and Proceeds without giving Bank prior
written notice of the address to which Debtor is moving same; and (vii) to cooperate with Bank in
perfecting all security interests granted herein and in obtaining such agreements from third
parties as Bank deems necessary, proper or convenient in connection with the preservation,
perfection or enforcement of any of its rights hereunder.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless Bank agrees otherwise in
writing: (i) that Bank is authorized to file financing statements in the name of Debtor to perfect
Bank’s security interest in Collateral and Proceeds; (ii) where applicable, to insure the
Collateral with Bank named as loss payee, in form, substance and amounts, under agreements, against
risks and liabilities, and with insurance companies satisfactory to Bank; (iii) not to permit any
lien on the Collateral or Proceeds, except in favor of Bank; (iv) not to sell, hypothecate or
otherwise dispose of, nor permit the transfer by operation of law of, any of the Collateral or
Proceeds or any interest therein; (v) to keep, in accordance with generally accepted accounting
principles, complete and accurate records regarding all Collateral and Proceeds, and to permit Bank
to inspect the same and make copies thereof at any reasonable time; (vi) if requested by Bank, to
receive and use reasonable diligence to collect Proceeds, in trust and as the property of Bank, and
to immediately endorse as appropriate and deliver such Proceeds to Bank daily in the exact form in
which they are received together with a collection report in form satisfactory to Bank; (vii) not
to commingle Collateral or Proceeds, or collections thereunder, with other property; (viii) to give
only normal allowances and credits and to advise Bank thereof immediately in writing if they affect
any Collateral or Proceeds in any material respect; (ix) on demand, to deliver to Bank returned
property resulting from, or payment equal to, such allowances or credits on any Collateral or
Proceeds or to execute such documents and to do such other things as Bank may reasonably request
for the purpose of perfecting, preserving and enforcing its security interest in such returned
property;
(x) from time to time, when requested by Bank, to prepare and deliver a schedule of all Collateral
and Proceeds subject to this Agreement and to assign in writing and deliver to Bank all accounts,
contracts, leases and other chattel paper, instruments, documents and other evidences thereof; (xi)
not to allow any financing statement covering any of Debtor’s inventory or proceeds thereof to be
on file in any public office without Bank’s prior written consent; (xii) in the event Bank elects
to receive payments of Collateral or Proceeds hereunder, to pay all expenses incurred by Bank in
connection therewith, including expenses of accounting, correspondence, collection efforts,
reporting to account or contract debtors, filing, recording, record keeping and expenses incidental
thereto; and (xiii) to provide any service and do any other acts which may be necessary to keep all
Collateral and Proceeds free and clear of all defenses, rights of offset and counterclaims.
7. POWERS OF BANK. Debtor appoints Bank its true attorney in fact to perform any of the
following powers, which are coupled with an interest, are irrevocable until termination of this
Agreement and may be exercised from time to time by Bank’s officers and employees, or any of them,
whether or not Debtor is in default: (a) to perform any obligation of Debtor hereunder in Debtor’s
name or otherwise; (b) to give notice to account debtors or others of Bank’s rights in the
Collateral and Proceeds, to enforce or forebear from enforcing the same and make extension or
modification agreements with respect thereto; (c) to release persons liable on Collateral or
Proceeds and to give receipts and acquittances and compromise disputes in connection therewith; (d)
to release or substitute security; (e) to resort to security in any order; (f) to prepare, execute,
file, record or deliver notes, assignments, schedules, designation statements, financing
statements, continuation statements, termination statements, statements of assignment, applications
for registration or like papers to perfect, preserve or release Bank’s interest in the Collateral
and Proceeds; (g) to receive, open and read mail addressed to Debtor; (h) to take cash, instruments
for the payment of money and other property to which Bank is entitled; (i) to verify facts
concerning the Collateral and Proceeds by inquiry of obligors thereon, or otherwise, in its own
name or a fictitious name; (j) to endorse, collect, deliver and receive payment under instruments
for the payment of money constituting or relating to Proceeds; (k) to prepare, adjust, execute,
deliver and receive payment under insurance claims, and to collect and receive payment of and
endorse any instrument in payment of loss or returned premiums or any other insurance refund or
return, and to apply such amounts received by Bank, at Bank’s sole option, toward repayment of the
Indebtedness; (l) to exercise all rights, powers and remedies which Debtor would have, but for this
Agreement, with respect to all Collateral and Proceeds subject hereto; (m) to make withdrawals from
and to close deposit accounts or other accounts with any financial institution, wherever located,
into which Proceeds may have been deposited, and to apply funds so withdrawn to payment of the
Indebtedness; (n) to preserve or release the interest evidenced by chattel paper to which Bank is
entitled hereunder and to endorse and deliver any evidence of title incidental thereto; and (o) to
do all acts and things and execute all documents in the name of Debtor or otherwise, deemed by Bank
as necessary, proper and convenient in connection with the preservation, perfection or enforcement
of its rights hereunder.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS. Debtor agrees to pay, prior to
delinquency, all insurance premiums, taxes, charges, liens and assessments against the Collateral
and Proceeds, and upon the failure of Debtor to do so, Bank at its option may pay any of them and
shall be the sole judge of the legality or validity thereof and the amount necessary to discharge
the same. Any such payments made by Bank shall be obligations of Debtor to Bank, due and payable
immediately upon demand, together with interest at a rate determined in accordance with the
provisions of this Agreement, and shall be secured by the Collateral and Proceeds, subject to all
terms and conditions of this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute an “Event of
Default” under this Agreement: (a) any default in the payment or performance of any obligation, or
any defined event of default, under (i) any contract or instrument evidencing any Indebtedness, or
(ii) any other agreement between Debtor and Bank, including without limitation any loan agreement,
relating to or executed in connection with any Indebtedness; (b) any representation or warranty
made by Debtor herein shall prove to be incorrect, false or misleading in any material respect when
made; (c) Debtor shall fail to observe or perform any obligation or agreement contained herein; (d)
any impairment of the rights of Bank in any Collateral or Proceeds, or any attachment or like levy
on any property of Debtor; and (e) Bank, in good faith, believes any or all of the Collateral
and/or Proceeds to be in danger of misuse, dissipation, commingling, loss, theft, damage or
destruction, or otherwise in jeopardy or unsatisfactory in character or value.
10. REMEDIES. Upon the occurrence of any Event of Default, Bank shall have the right to
declare immediately due and payable all or any Indebtedness secured hereby and to terminate any
commitments to make loans or otherwise extend credit to Debtor. Bank shall have all other rights,
powers, privileges and remedies granted to a secured party upon default under the Colorado Uniform
Commercial Code or otherwise provided by law, including without limitation, the right (a) to
contact all persons obligated to Debtor on any Collateral or Proceeds and to instruct such persons
to deliver all Collateral and/or Proceeds directly to Bank, and (b) to sell, lease, license or
otherwise dispose of any or all Collateral. All rights, powers, privileges and remedies of Bank
shall be cumulative. No delay, failure or discontinuance of Bank in exercising any right, power,
privilege or remedy hereunder shall affect or operate as a waiver of such right, power, privilege
or remedy; nor shall any single or partial exercise of any such right, power, privilege or remedy
preclude, waive or otherwise affect any other or further exercise thereof or the exercise of any
other right, power, privilege or remedy. Any waiver, permit, consent or approval of any kind by
Bank of any default hereunder, or any such waiver of any provisions or conditions hereof, must be
in writing and shall be effective only to the extent set forth in writing. It is agreed that
public or private sales or other dispositions, for cash or on credit, to a wholesaler or retailer
or investor, or user of property of the types subject to this Agreement, or public auctions, are
all commercially reasonable since differences in the prices generally realized in the different
kinds of dispositions are ordinarily offset by the differences in the costs and credit risks of
such dispositions. While an Event of Default exists: (a) Debtor will deliver to Bank from time to
time, as requested by Bank, current lists of all Collateral and Proceeds; (b) Debtor will not
dispose of any Collateral or Proceeds except on terms approved by Bank; and (c) at Bank’s request,
Debtor will assemble and deliver all Collateral and Proceeds, and books and records pertaining
thereto, to Bank at a reasonably convenient place designated by Bank.
11. DISPOSITION OF COLLATERAL AND PROCEEDS; TRANSFER OF INDEBTEDNESS. In disposing of
Collateral hereunder, Bank may disclaim all warranties of title, possession, quiet enjoyment and
the like. Any proceeds of any disposition of any of the Collateral or Proceeds, or any part
thereof, may be applied by Bank to the payment of expenses incurred by Bank in connection with the
foregoing, including reasonable attorneys’ fees, and the balance of such proceeds may be applied by
Bank toward the payment of the Indebtedness in such order of application as Bank may from time to
time elect. Upon the transfer of all or any part of the Indebtedness, Bank may transfer all or any
part of the Collateral or Proceeds and shall be fully discharged thereafter from all liability and
responsibility with respect to any of the foregoing so transferred, and the transferee shall be
vested with all rights and powers of Bank hereunder with respect to any of the foregoing so
transferred; but with respect to any Collateral or Proceeds not so transferred, Bank shall retain
all rights, powers, privileges and remedies herein given.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid in full and all
commitments by Bank to extend credit to Debtor have been terminated, the power of sale or other
disposition and all other rights, powers, privileges and remedies granted to Bank hereunder shall
continue to exist and may be exercised by Bank at any time and from time to time irrespective of
the fact that the Indebtedness or any part thereof may have become barred by any statute of
limitations, or that the personal liability of Debtor may have ceased, unless such liability shall
have ceased due to the payment in full of all Indebtedness secured hereunder.
13. MISCELLANEOUS. When there is more than one Debtor named herein: (a) the word “Debtor”
shall mean all or any one or more of them as the context requires; (b) the obligations of each
Debtor hereunder are joint and several; and (c) until all Indebtedness shall have been paid in
full, no Debtor shall have any right of subrogation or contribution, and each Debtor hereby waives
any benefit of or right to participate in any of the Collateral or Proceeds or any other security
now or hereafter held by Bank. Debtor hereby waives any right to require Bank to (i) proceed
against Debtor or any other person, (ii) marshal assets or proceed against or exhaust any security
from Debtor or any other person, (iii) perform any obligation of Debtor with respect to any
Collateral or Proceeds, and (d) make any presentment or demand, or give any notice of nonpayment or
nonperformance, protest, notice of protest or notice of dishonor hereunder or in connection with
any Collateral or Proceeds. Debtor further waives any right to direct the application of payments
or security for any Indebtedness of Debtor or indebtedness of customers of Debtor.
14. NOTICES. All notices, requests and demands required under this Agreement must be in
writing, addressed to Bank at the address specified in any other loan documents entered into
between Debtor and Bank and to Debtor at the address of its chief executive office (or principal
residence, if applicable) specified below or to such other address as any party may designate by
written notice to each other party, and shall be deemed to have been given or made as follows: (a)
if personally delivered, upon delivery; (b) if sent by mail, upon the earlier of the date of
receipt or three (3) days after deposit in the U.S. mail, first class and postage prepaid; and (c)
if sent by telecopy, upon receipt.
15. COSTS, EXPENSES AND ATTORNEYS’ FEES. Debtor shall pay to Bank immediately upon demand the
full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’
fees (to include outside counsel fees and all allocated costs of Bank’s in-house counsel), expended
or incurred by Bank in connection with (a) the perfection and preservation of the Collateral or
Bank’s interest therein, and (b) the realization, enforcement and exercise of any right, power,
privilege or remedy conferred by this Agreement, whether incurred at the trial or appellate level,
in an arbitration proceeding or otherwise, and including any of the foregoing incurred in
connection with any bankruptcy proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person) relating to Debtor or in any way
affecting any of the Collateral or Bank’s ability to exercise any of its rights or remedies with
respect thereto. All of the foregoing shall be paid by Debtor with interest from the date of
demand until paid in full at a rate per annum equal to the greater of ten percent (10%) or Bank’s
Prime Rate in effect from time to time.
16. SUCCESSORS; ASSIGNS; AMENDMENT. This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, administrators, legal representatives, successors and assigns of
the parties, and may be amended or modified only in writing signed by Bank and Debtor.
17. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of such provision or
any remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado.
Debtor warrants that Debtor is an organization registered under the laws of Colorado.
Debtor warrants that its chief executive office (or principal residence, if applicable) is
located at the following address: 00 Xxxx Xx., Xxx 000, Xxxxxx, XX 00000.
IN WITNESS WHEREOF, this Agreement has been duly executed as of June 30, 2008.
| STARTEK USA, INC. |
|||
| By: | /s/ Xxxxx X. Xxxxxx | ||
| Xxxxx X. Xxxxxx, Chief Financial Officer/Treasurer | |||
| By: | /s/ Xxxxxx X. Church | ||
| Xxxxxx X. Church, Vice President/Controller | |||
