LOAN AGREEMENT Dated as of March 11, 2016 by and between AGILITY CAPITAL II, LLC as “Agility” or “Lender” and ACCELERIZE INC. as “Borrower” TOTAL CREDIT AMOUNT: Up to $625,000
Exhibit 10.36
Dated as of March 11, 2016
by and between
AGILITY CAPITAL II, LLC
as “Agility” or “Lender”
and
as “Borrower”
TOTAL CREDIT AMOUNT: Up to $625,000
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Maturity Date: |
March 31, 2017 |
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Formula: |
None |
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Facility Origination Fee: |
$125,000 |
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Interest: |
12% per annum; fixed |
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Warrants: |
See Warrant for coverage |
The information set forth above is subject to the terms and conditions set forth in the balance of this Agreement. The parties agree as follows:
1. Advance and Payments.
(a) Advances. Borrower may request one advance up to the aggregate principal amount of up to $625,000 (the “Advance”), which shall be loaned on or around the date of this Agreement. Agility’s obligation to make any portion of the Advance under this Agreement is subject to (i) Agility’s determination, in its sole discretion, that there has not occurred a circumstance or circumstances that have a Material Adverse Effect, and (ii) the execution, delivery and filing of such certificates, instruments and agreements, as Agility deems appropriate, in form and substance satisfactory to Agility, including but not limited to (A) a deposit account control agreement with any Bank with which Borrower maintains an account, including but not limited to those accounts in Exhibit B; (B) a warrant to purchase stock; (C) a subordination agreement with Pacific Western Bank, formerly known as Square 1 Bank (“Senior Lender”); (D) evidence of an amendment to the Senior Lender’s loan documents (the “Senior Debt”) extending the maturity date of indebtedness owing thereunder; and (E) subordination agreement with Borrower’s other noteholders (if any).
(b) Interest. Borrower shall pay interest on the outstanding principal balance of the Advance at a fixed rate per annum equal to twelve percent (12.0%). Interest shall be calculated on the basis of a 360-day year for the actual number of days elapsed, shall accrue from the date of an Advance and continue until such Advance has been repaid, and shall be payable in arrears on the first day of each month until such Advance has been repaid.
(c) Payments. Borrower shall make interest-only payments on the first day of each month as set forth in Section 1(b) above. Any partial month shall be prorated on the basis of a 30-day month based on the actual number of days outstanding. Beginning on July 1, 2016 and on the first day of each month thereafter, Borrower shall make monthly principal payments in the amount of $25,000 to Agility, plus accrued interest. All such monthly payments made to Agility shall be made via wire transfer per wire transfer instructions separately provided by Agility to Borrower or by automated clearing house (ACH) transfer. All payments received by Agility shall be applied first to outstanding fees and expenses owing to Agility, then to accrued and unpaid interest, then to principal. Any fees or interest not paid when due shall be compounded by becoming a part of the Obligations (as herein defined), and such unpaid fees or interest shall thereafter accrue interest at the applicable interest rate.
(d) Prepayment. Borrower may prepay all but not less than all of the Advance, provided Borrower (i) provides written notice to Lender of its election to prepay the Advance at least fifteen (15) days prior to such prepayment, and (ii) pays to the Lender on the date of such prepayment an amount equal to the sum of (A) all outstanding principal of the Advance plus accrued and unpaid interest thereon through the prepayment date, (B) a fee equal to $50,000 minus the aggregate amount of interest paid by Borrower prior to the prepayment date, plus (C) all of Lender’s reasonable fees and expenses incurred in connection with this Agreement.
(e) Fees. On the date hereof, Borrower shall pay to Agility an origination fee of $125,000, which is fully earned and nonrefundable, and shall be deducted from the initial proceeds of the Advance. Borrower shall pay Agility a loan management fee of $625 per month, payable in arrears on the first day of each month, each of which are fully earned and nonrefundable on each such date.
(f) Maturity Date. All amounts outstanding hereunder are due and payable on March 31, 2017 (the “Maturity Date”).
(g) Late Payments; Default Interest; Default Fees. After the occurrence of an Event of Default under Section 5(a) or Section 5(b) of this Agreement, the Obligations shall bear interest at a rate equal to 17%. In addition, upon the occurrence of such Event of Default, Borrower shall pay Agility a default fee of $5,000. For each 15 day period in which such an Event of Default remains outstanding and uncured to Agility’s satisfaction, Borrower shall pay Agility an additional default fee of $5,000 for the first 15 day period, and an additional $5,000 for each 15 day period thereafter, until such Event of Default is cured to Agility’s satisfaction or waived in writing by Agility. The terms of this paragraph shall not be construed as Agility’s consent to Borrower’s failure to pay any amounts in strict accordance with this Agreement, and Agility’s charging any fees and/or acceptance of any payments shall not restrict Agility’s exercise of any remedies arising out of any such failure.
(h) Use of Proceeds. The proceeds from the Advance shall be used for Borrower’s working capital purposes.
2. Security Interest. As security for all present and future indebtedness, guarantees, liabilities, and other obligations of Borrower to Agility under this Agreement and any other present or future agreement, document, or instrument entered into in connection herewith (collectively, the “Transaction Documents”), including all fees specified in Section 1 (collectively, the “Obligations”), Borrower grants Agility a security interest in all of Borrower’s personal property, whether now owned or hereafter acquired, including without limitation the property described on Exhibit A attached hereto, and all products, proceeds and insurance proceeds of the foregoing (collectively, the “Collateral”). Borrower authorizes Agility to execute such documents and take such actions as Agility reasonably deems appropriate from time to time to perfect or continue the security interest granted hereunder.
3. Representations, Warranties and Covenants. Borrower represents to Agility as follows (which shall be deemed continuing throughout the term of this Agreement:
(a) Authorization. The execution, delivery and performance by Borrower of the Transaction Documents, and all other documents contemplated hereby have been duly and validly authorized by all necessary corporate action, and do not violate Borrower’s Articles of Incorporation or by-laws, or any law or any material agreement or instrument which is binding upon Borrower or its property.
(b) State of Incorporation; Places of Business; Locations of Collateral. Borrower is and will continue to be, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation. Borrower is and will continue to be qualified and licensed to do business in all jurisdictions in which it is required to do so. The address set forth in this Agreement under Borrower’s signature is Borrower’s chief executive office. Other than the chief executive office, the Collateral is located at the address(es) set forth on Exhibit B.
(c) Title to Collateral; Permitted Liens. Borrower is now, and will at all times in the future be, the sole owner of all the Collateral. The Collateral now is and will remain free and clear of any and all liens, security interests, encumbrances and adverse claims, except for (i) purchase money security interests in specific items of equipment; (ii) leases of specific items of equipment; (iii) liens for taxes, fees, assessments or other governmental charges or levies, either not delinquent or being contested in good faith by appropriate proceedings, provided the same have no priority over any of Lender’s security interests; (iv) liens of materialmen, mechanics, warehousemen, carriers, or other similar liens arising in the ordinary course of business and securing obligations that are not delinquent; (v) the lien in favor of Senior Lender; and (vi) the liens set forth on Exhibit B.
(d) Financial Condition, Statements and Reports. The financial statements provided to Agility by Borrower have been prepared in accordance with generally accepted accounting principles, consistently applied (“GAAP”). All financial statements now or in the future delivered to Agility will fairly reflect the financial condition of Borrower, at the times and for the periods therein stated. Between the last date covered by any such statement provided to Agility and the date hereof, there has been no circumstance that could constitute or give rise to a Material Adverse Effect. Borrower has timely filed, and will timely file, all tax returns and reports required by applicable law, and Borrower has timely paid, and will timely pay, all applicable taxes, assessments, deposits and contributions now or in the future owed by Borrower.
(e) Compliance with Law. Borrower has complied, and will comply, in all material respects, with all provisions of all material applicable laws and regulations.
(f) Information. All information provided to Agility by or on behalf of Borrower on or prior to the date of this Agreement is true and correct in all material respects, and no representation or other statement made by Borrower to Agility contains any untrue statement of a material fact or omits to state a material fact necessary to make any statements made to Agility not misleading at the time made.
(g) Litigation. Except as disclosed on Exhibit B, there is no claim or litigation pending or (to best of Borrower’s knowledge) threatened against Borrower. Borrower will promptly inform Agility in writing of any claim or litigation in the future.
(h) Subsidiaries; Investments. Except as disclosed on Exhibit B, Borrower has no wholly-owned or partially owned subsidiaries, and Exhibit B sets forth all loans by Borrower to, and all investments by Borrower in, any person, entity, corporation partnership or joint venture.
(i) Deposit and Investment Accounts. Borrower maintains only the operating, savings, deposit, securities and investment accounts listed on Exhibit B.
4. Other Covenants.
(a) Reports. For so long as the Senior Debt is outstanding, Borrower will provide to Agility all financial information (including monthly financial statements, and other monthly reporting), all certificates and notices as is required by Senior Lender, concurrently with delivery to Senior Lender. If such reporting is no longer required to be delivered to Senior Lender, Borrower will provide to Agility in form and substance acceptable to Agility: (i) within thirty (30) days after the last day of each month, monthly financial statements, prepared in accordance with GAAP, consistently applied; (ii) within fifteen (15) days after the last day of each month, copies of all reports and statements received by Borrower from any of its banks or other financial institutions (in lieu of such requirement, Borrower may grant Agility on-line “view only” access to all of its accounts on terms acceptable to Agility); (iii) annual financial statements prepared in accordance with GAAP, consistently applied, by an independent certified public accountant acceptable to Agility, it being agreed that Borrower’s current accountants as of the date hereof are acceptable to Agility, and copies of Borrower’s tax returns for such year, within one hundred twenty (120) days of the last day of such year; (iv) within five (5) days of the end of each month, aged listings of accounts receivable and accounts payable; and (v) upon request, such other information relating to Borrower’s operations and condition, as Agility may reasonably request from time to time. Agility shall have the right to review and copy Borrower’s books and records and audit and inspect the Collateral, from time to time, upon reasonable notice to Borrower. Agility or its officers, employees, or agents shall have a right to visit Borrower’s premises and interview Borrower’s officers at Borrower’s expense.
(b) Insurance. Borrower will maintain insurance on the Collateral and Borrower’s business, in amounts and of a type that are customary to businesses similar to Borrower’s, and Agility will be named in a lender’s loss payable endorsement in favor of Agility, in form reasonably acceptable to Agility.
(c) Financial Covenants. Borrower’s quarterly Adjusted EBITDA shall be at least $1, beginning with quarter ending June 30, 2016. “Adjusted EBITDA” means Borrower’s earnings before interest, taxes, depreciation and amortization expenses, and adjusted for fair value of warrant liabilities and stock-based compensation expense, as determined in accordance with GAAP.
(d) Negative Covenants. Without Agility’s prior written consent, Borrower shall not do any of the following: (i) acquire any assets outside the ordinary course of business; (ii) sell, lease, license, encumber, transfer or otherwise dispose of any Collateral except for sales of inventory in the ordinary course of business and the disposition of obsolete or worn-out equipment that are superfluous to Borrower’s business; (iii) pay or declare any dividends on Borrower’s stock; (iv) redeem, repurchase or otherwise acquire, any of Borrower’s stock exceeding a value of Three Hundred Thousand Dollars ($300,000); (v) make any investments in, or loans or advances to, any person, including without limitation any investments in, or downstreaming of funds to, any subsidiary or affiliate of Borrower, with the exception of Borrower’s customary downstreaming of funds to Borrower’s subsidiary, Cake Marketing UK Ltd, to the extent necessary to support such subsidiary’s operations and consistent with past practices; (vi) incur any indebtedness, including any guaranties or other contingent liabilities, other (A) than unsecured trade debt, including obligations to suppliers and customers and equipment or capital lease obligations, each incurred in the ordinary course of business and (B) indebtedness owing to Senior Lender not to exceed an aggregate of up to Seven Million Dollars ($7,000,000) that is subject to a subordination agreement in form and substance satisfactory to Lender; (vii) make any deposits or investments into any investment or depository accounts unless they are subject to an account control agreement acceptable to Agility (with the exception of the account maintained outside of the United States by Cake Marketing UK Ltd., the aggregate balance of which shall not exceed $200,000 at any time, and any amounts in excess of such limit shall be promptly transferred back to Borrower’s account(s) that are subject to an account control agreement in favor of Lender); (viii) make any payment on any of Borrower’s indebtedness that is subordinate to the Obligations, other than in accordance with a subordination agreement, if any, in favor of Lender relating thereto; (ix) permit or suffer a merger, change of control, or acquisition of all or any substantial part of Borrower’s assets; (x) use any part of the Advances to repay loans or pay deferred salaries or other amounts owing to any officers, directors, shareholders or affiliates of Borrower; or (xi) agree to do any of the foregoing; or (xii) or without thirty (30) days prior written notification to Lender, relocate its chief executive office or change its state of incorporation or change its legal name or experience any change in corporate form.
(e) Board Meetings and Materials. Upon Agility’s request, Borrower shall give Agility copies of all notices, minutes, consents and other materials the Borrower provides to its directors in connection with such meetings at the same time and in the same manner as it gives to its directors.
5. Events of Default. Any one or more of the following shall constitute an Event of Default under this Agreement:
(a) Borrower fails to pay any principal or interest due hereunder within ten days after the date due, provided that any amounts due on the Maturity Date shall be paid on that date, with no grace period; or
(b) Borrower fails to comply with Section 4(c) of this Agreement or the occurrence of any event of default under the loan documents with Senior Lender;
(c) Borrower fails to comply with any other provision of this Agreement or any other Transaction Document; or
(d) Any warranty, representation, statement, report or certificate made or delivered to Agility by Borrower or on Borrower’s behalf shall be untrue or misleading in a material respect as of the date given or made, or shall become untrue or misleading in a material respect after the date hereof; or
(e) A default or event of default occurs in any other agreement to which Borrower is subject or by which Borrower is bound (i) resulting in a right by the other party or parties, whether or not exercised, to accelerate the maturity of any indebtedness or (ii) that could have a Material Adverse Effect, as defined below; or
(f) Any portion of Borrower’s assets is attached, seized or levied upon, or a judgment for more than $50,000 is awarded against Borrower and is not stayed within ten days; or
(g) Dissolution or termination of existence of Borrower; or appointment of a receiver, trustee or custodian, for all or any material part of the property of, assignment for the benefit of creditors by, or the commencement of any proceeding by or against Borrower under any reorganization, bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, now or in the future in effect (except that, in the case of a proceeding commenced against Borrower, Borrower shall have 60 days after the date such proceeding was commenced to have it dismissed, provided Agility shall have no obligation to make any Advances during such period); or
(h) The occurrence of any circumstance that could reasonably be expected to have a “Material Adverse Effect”, which shall mean (i) a material adverse change in the business, prospects, operations, results of operations, assets, liabilities or financial or other condition of Borrower, (ii) the material impairment of Borrower’s ability to perform its Obligations or of Agility’s ability to enforce the Obligations or realize upon the Collateral, or (iii) a material adverse change in the value of the Collateral.
6. Remedies.
(a) Remedies. Upon the occurrence of any Event of Default, Agility, at its option, may do any one or more of the following: (i) Accelerate and declare the Obligations to be immediately due, payable, and performable; (ii) Take possession of any or all of the Collateral wherever it may be found, and for that purpose Borrower hereby authorizes Agility to enter Borrower’s premises without interference to search for, take possession of, keep, store, or remove any of the Collateral, and remain on the premises or cause a custodian to remain on the premises in exclusive control thereof, without charge by Borrower for so long as Agility reasonably deems it necessary in order to complete the enforcement of its rights under this Agreement or any other Transaction Document; provided, however, that should Agility seek to take possession of any of the Collateral by Court process, Borrower hereby waives: (A) any bond and any surety or security relating thereto; (B) any demand for possession prior to the commencement of any suit or action to recover possession thereof; and (C) any requirement that Agility retain possession of, and not dispose of, any such Collateral until after trial or final judgment; (iii) Require Borrower to assemble any or all of the Collateral and make it available to Agility at places designated by Agility; (iv) Complete the processing of any Collateral prior to a disposition thereof and, for such purpose and for the purpose of removal, Agility shall have the right to use Borrower’s premises, equipment and all other property without charge by Borrower; (v) Collect and dispose of and realize upon any investment property, including withdrawal of any and all funds from any deposit or securities accounts; (vi) Dispose of any of the Collateral, at one or more public or private sales, in lots or in bulk, for cash, exchange or other property, or on credit, and to adjourn any such sale from time to time without notice other than oral announcement at the time scheduled for sale; and (vii) Demand payment of, and collect any accounts, general intangibles or other Collateral and, in connection therewith, Borrower irrevocably authorizes Agility to endorse or sign Borrower’s name on all collections, receipts, instruments and other documents, and, in Agility’s good faith business judgment, to grant extensions of time to pay, compromise claims and settle accounts, general intangibles and the like for less than face value; Borrower grants Agility a license, exercisable from and after an Event of Default has occurred, to use and copy any trademarks, service marks and other intellectual property in which Borrower has an interest to effect any of the foregoing remedies. All reasonable attorneys’ fees, expenses, costs, liabilities and obligations incurred by Agility with respect to the foregoing shall be added to and become part of the Obligations, and shall be due on demand.
(b) Application of Proceeds. All proceeds realized as the result of any sale or other disposition of the Collateral shall be applied by Agility first to the reasonable costs, expenses, liabilities, obligations and attorneys’ fees incurred by Agility in the exercise of its rights under this Agreement or any other Transaction Document, second to any fees and Obligations other than interest and principal, third to the interest due upon any of the Obligations, and fourth to the principal of the Obligations, in such order as Agility shall determine in its sole discretion. Any surplus shall be paid to Borrower or other persons legally entitled thereto; Borrower shall remain liable to Agility for any deficiency.
(c) Remedies Cumulative. In addition to the rights and remedies set forth in this Agreement, Agility shall have all the other rights and remedies accorded a secured party under the California Uniform Commercial Code and under all other applicable laws, and under any other instrument or agreement now or in the future entered into between Agility and Borrower, and all of such rights and remedies are cumulative and none is exclusive. Exercise or partial exercise by Agility of one or more of its rights or remedies shall not be deemed an election, nor bar Agility from subsequent exercise or partial exercise of any other rights or remedies. The failure or delay of Agility to exercise any rights or remedies shall not operate as a waiver thereof, but all rights and remedies shall continue in full force and effect until all of the Obligations have been fully paid and performed.
(d) Power of Attorney. After the occurrence and during the continuance of an Event of Default, Borrower irrevocably appoints Agility (and any of Agility’s designated employees or agents) as Borrower’s true and lawful attorney in fact to: endorse Borrower’s name on any checks or other forms of payment; make, settle and adjust all claims under and decisions with respect to Borrower’s policies of insurance; settle and adjust disputes and claims respecting accounts, general intangibles and other Collateral; execute and deliver all notices, instruments and agreements in connection with the perfection of the security interest granted in this Agreement; sell, lease or otherwise dispose of all or any part of the Collateral; and take any other action or sign any other documents required to be taken or signed by Borrower, or reasonably necessary to enforce Agility’s rights or remedies or otherwise carry out the purposes of this Agreement and the other Transaction Documents. The appointment of Agility as Borrower’s attorney in fact, and each of Agility’s rights and powers, being coupled with an interest, are irrevocable until all Obligations owing to Agility have been paid and performed in full.
7. Waivers. The failure of Agility at any time or times to require Borrower to strictly comply with any of the provisions of this Agreement or any other Transaction Document between Borrower and Agility shall not waive or diminish any right of Agility later to demand and receive strict compliance therewith. Any waiver of any default shall not waive or affect any other default, whether prior or subsequent, and whether or not similar. None of the provisions of this Agreement or any other agreement shall be deemed to have been waived except by a specific written waiver signed by an authorized officer of Agility. Borrower waives demand, protest, notice of protest and notice of default or dishonor, notice of payment and nonpayment, release, compromise, settlement, extension or renewal of any commercial paper, instrument, account, general intangible, document or guaranty at any time held by Agility on which Borrower is or may in any way be liable, and notice of any action taken by Agility, unless expressly required by this Agreement.
8. Indemnity. Borrower shall indemnify Agility for any costs or liabilities, including reasonable attorneys’ fees, incurred by Agility in connection with this Agreement or any other Transaction Document.
9. Confidentiality. In handling any confidential non-public information provided to Agility by Borrower, Agility shall exercise the same degree of care that it exercises with respect to its own proprietary information of the same types to maintain the confidentiality of the same, except that disclosure of such information may be made (i) to subsidiaries or affiliates of Agility in connection with their present or prospective business relations with Borrower, (ii) to prospective transferees or purchasers of any interest in the Obligations, provided that they have entered into a comparable confidentiality agreement with respect thereto, (iii) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (iv) as may be required in connection with the examination, audit or similar investigation of Agility, and (v) as Agility may deem appropriate in connection with the exercise of any remedies hereunder. Confidential information shall not include information that either: (a) is in the public domain, or becomes part of the public domain, after disclosure to Agility through no fault of Agility; or (b) is disclosed to Agility by a third party, provided Agility does not have actual knowledge that such third party is prohibited from disclosing such information.
10. Governing Law; Jurisdiction; Venue. The Transaction Documents, all acts and transactions under the Transaction Documents, and all rights and obligations of Agility and Borrower shall be governed by the internal laws (and not the conflict of laws rules) of the State of California. As a material part of the consideration to Agility to enter into this Agreement, Borrower (i) agrees that all actions and proceedings relating directly or indirectly to the Transaction Documents shall, at Agility’s option, be litigated in courts located within California, and, at Agility’s option, the venue therefor shall be Santa Xxxxxxx County; (ii) consents to the jurisdiction and venue of any such court and consents to service of process in any such action or proceeding by personal delivery or any other method permitted by law; and (iii) waives any and all rights Borrower may have to object to the jurisdiction of any such court, or to transfer or change the venue of any such action or proceeding.
11. MUTUAL WAIVER OF JURY TRIAL. BORROWER AND AGILITY EACH WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN AGILITY AND BORROWER INCLUDING ALL OTHER TRANSACTION DOCUMENTS, OR ANY CONDUCT, ACTS OR OMISSIONS OF AGILITY OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH AGILITY OR BORROWER, IN ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. IF THIS JURY WAIVER IS FOR ANY REASON UNENFORCEABLE, THE PARTIES AGREE TO RESOLVE ALL CLAIMS, CAUSES AND DISPUTES THROUGH JUDICIAL REFERENCE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 638 ET SEQ BEFORE A MUTUALLY ACCEPTABLE REFEREE SITTING WITHOUT A JURY OR, IF NO AGREEMENT ON THE REFEREE IS REACHED, BEFORE A REFEREE SELECTED BY THE PRESIDING JUDGE OF THE CALIFORNIA SUPERIOR COURT FOR SANTA XXXXXXX COUNTY. THIS PROVISION SHALL NOT RESTRICT A PARTY FROM EXERCISING NONJUDICIAL REMEDIES UNDER THE CODE.
12. General. This Agreement and the other Transaction Documents are the final, entire and complete agreement between Borrower and Agility and supersede all prior and contemporaneous negotiations and oral representations and agreements, all of which are merged and integrated in this Agreement and the other Transaction Documents. There are no oral understandings, representations or agreements between the parties which are not set forth in the Transaction Documents. The terms and provisions of this Agreement or any other Transaction Document may not be waived or amended, except in a writing executed by Borrower and a duly authorized officer of Agility. Agility may assign all or any part of its interest in this Agreement or any other Transaction Document and the Obligations to any person or entity, or grant a participation in, or security interest in, any interest in this or any other Transaction Document, without notice to or consent of Borrower. Borrower may not assign any rights under or interest in this Agreement or any other Transaction Document without Agility’s prior written consent.
13. Publicity. Upon Borrower’s written consent, Borrower authorizes Agility to use Borrower’s tradenames and logos in Agility’s marketing materials in respect of the transactions evidenced by this Agreement.
14. Lender’s License. This loan is made pursuant to the California Finance Lenders Law, Division 9 (commencing with Section 22000) of the Financial Code. Agility Capital II, LLC, 000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxx Xxxxxxx, XX 00000, License Number 603 H822. FOR INFORMATION CONTACT THE DEPARTMENT OF CORPORATIONS, STATE OF CALIFORNIA.
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AGILITY CAPITAL II, LLC |
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By: /s/ Xxxxxxx Xxxxxxx ____________________ |
By: /s/ Xxxxx Xxxx ____________________ |
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Title: Managing Partner ______________________ |
Title: CEO ____________________________ |
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Address for notices: |
Address for notices: |
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Agility Capital II, LLC |
00000 XX Xxxxx Xxxxxx., Xxxxx 000 Xxxxxxx Xxxxx, XX 00000 Attn: _ Damon Stein________________ FAX: _000-000-0000________________ |
EXHIBIT A
COLLATERAL DESCRIPTION ATTACHMENT
TO LOAN AND SECURITY AGREEMENT
All personal property of Borrower (herein referred to as “Borrower” or “Debtor”) whether presently existing or hereafter created or acquired, and wherever located, including, but not limited to:
(a) all accounts (including health-care-insurance receivables), chattel paper (including tangible and electronic chattel paper), commercial tort claims, deposit accounts, documents (including negotiable documents), equipment (including all accessions and additions thereto), general intangibles (including copyrights, patents, trademarks, goodwill and all intellectual property, payment intangibles and software), goods (including fixtures), instruments (including promissory notes), inventory (including all goods held for sale or lease or to be furnished under a contract of service, and including returns and repossessions), investment property (including securities and securities entitlements), letter of credit rights, money, and all of Debtor’s books and records with respect to any of the foregoing, and the computers and equipment containing said books and records; and
(b) any and all cash proceeds and/or noncash proceeds of any of the foregoing, including, without limitation, insurance proceeds, and all supporting obligations and the security therefor or for any right to payment. All terms above have the meanings given to them in the California Uniform Commercial Code, as amended or supplemented from time to time.
EXHIBIT B
Places of Business and Locations of Collateral (Section 3(b)):
00000 XX Xxxxx Xxxxxx, Xxx. 000, Xxxxxxx Xxxxx, XX 00000
00000 Xxxxxxxx Xxxx., Xxx. 000, Xxx Xxxxxxx, XX 00000
UK Office Address:
00-00 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxx, XX
X0X 0XX
Permitted Liens (Section 3(c))
Litigation (Section 3(g)):
Accelerize v XxXxxxxx and XxXxxxxx v. Accelerize (as disclosed in Borrower’s Public Filings)
Subsidiaries and partnerships and joint ventures (Section 3(h)):
Borrower owns all of the capital stock of Cake Marketing UK Ltd.
Accounts (Section 3(i))
US Bank Accounts – Square 1 Bank/Pacific Western Bank
Main Bank Account -
Disbursement Bank Account –
Payroll Bank Account -
Asset Based Lending Bank Account –
UK Bank Account
Cake Marketing UK Ltd
Barclays Bank
Account Number -
Swift ID (International) -
Cake Marketing UK Ltd
Xxxxx Fargo Bank
Account Number
1.
