Exhibit 10.57
CONTRACT OF SALE
SECURITY AGREEMENT
(LOC Form 5)
This Contract of Sale and Security Agreement dated for purposes of
reference February 12, 2003; is between the undersigned, PACIFIC COAST
TECHNOLOGIES, INC., hereinafter called "CLIENT", and CAPCO Financial
Company, a division of Cupertino National Bank hereinafter called "CAPCO
", agree as follows:
PURPOSE OF AGREEMENT:
1. CLIENT desires to obtain short-term financing by selling, to CAPCO
ALL Accounts receivable. CAPCO agrees to Purchase CLIENTs Accounts
from time to time at a discount below face value, utilizing an
advance formula for the purchase of ALL Accounts based upon
advances against Acceptable/Eligible Accounts. It is clearly
understood by both parties that ALL Accounts of CLIENT are to be
sold to CAPCO.
DEFINITIONS:
2. "Account" means any right of payment for goods sold, or leased,
and delivered, or services rendered, any specific transaction, or
any right of payment.
3. "Advance Formula" means the maximum amount available to CLIENT
from CAPCO for the purchase of All Accounts will not exceed 80% of
Acceptable/Eligible Accounts.
4. "Acceptable/Eligible Account" means an Account conforming to the
Warranties and terms set forth herein that has not been
outstanding for more than 90 DAYS from the date of invoice, has
been underwritten and approved by CAPCO , and has not been reduced
from the original amount billed by, credit memo, offset,
adjustment of any kind, or partial payment subsequent to invoice
date.
5. "Customer" means CLIENT'S Customer or the Account debtor.
6. "CLIENT" means the seller of All Accounts.
7. "Collateral" means the intangible or tangible property given as
security to CAPCO by CLIENT for any obligations and liabilities of
CLIENT to CAPCO under the Agreement.
8. "Warrant" means to guarantee, as a material element of this
Agreement.
9. "Credit Problem" means Customer is unable to pay his debts because
of problems or insolvency.
10. "Customer Dispute" means any claim by Customer against CLIENT, of
any kind whatsoever, valid or invalid, that reduces the amount
collectible from Customer by CAPCO . CLIENT COVENANTS:
11. CLIENT agrees to sell to CAPCO ALL ACCOUNTS RECEIVABLE, (Accounts)
mechanic's lien(s), and rights to payment under any stop
notice(s), or bonded stop notice(s) securing payment of those
Accounts created by CLIENT in the course of its business, existing
as of the date of this agreement or thereafter created during the
term of this agreement, subject to approval and verification by
CAPCO . CAPCO is not obligated to advance funds for the purchase
of All Accounts from CLIENT. When CLIENT notifies CAPCO of it's
Accounts, CLIENT shall provide the original Assigned Account
(Invoice) together with one copy thereof, a copy of the xxxx of
lading contract, purchase order, purchase order number, and/or any
other requisite supporting documentation corresponding to said
Accounts and appropriate to the business of CLIENT.
12. CLIENT shall prepare and give to CAPCO proper written assignments
of Accounts, mechanic's lien(s) on forms provided by CAPCO. The
execution of said assignments shall transfer to CAPCO all of
CLIENTs right, title and ownership to ALL Accounts. CLIENT or
CAPCO by this agreement, will properly xxxx Accounts, as assigned
and sold to CAPCO, and CAPCO is authorized to notify Customer of
said sale and assignment.
Form Date 6/97 Page 1 Initial__________
13. CLIENT represents and Warrants to CAPCO that:
a. CLIENT is sole and absolute owner of any and all Accounts and
mechanic's liens and rights to payment under any stop notices, or
bonded stop notices, sold and assigned hereunder, and CLIENT has full
legal right to make said sale, assignment, and/or transfer.
b. all Accounts sold to CAPCO are an accurate statement of a bonafide
sale, delivery and acceptance of merchandise, or performance of service
by CLIENT to / for Account-debtor. Accounts are not contingent upon the
fulfillment by CLIENT and each Account-debtor's business is believed to
be solvent. The terms for payment of said Accounts are Net 30 days or
as expressly set forth on the face of said sold and assigned Accounts,
and the payment of said Accounts are not contingent upon the
fulfillment by CLIENT of any further performance of any nature
whatsoever. CLIENT shall accept no returns and shall grant no
allowances or credits to any sold and Assigned Account of any
Account-debtor without the prior written approval of CAPCO.
c. There are no known setoffs, Customer Disputes, adverse claims,
defenses, and/or liens whatsoever against the payment of Accounts, and
Account's mechanic's liens have not been previously assigned or
encumbered by CLIENT in any manner whatsoever. CLIENT will, immediately
upon sale of Accounts to CAPCO make proper entries on its books and
records disclosing the absolute sale of Accounts to CAPCO and CLIENT
will post no payment unless it is reflected in a payment report from
CAPCO .
d. CLIENT will promptly notify CAPCO in writing of any proposed change
in CLIENT'S place of business, name, legal entity, corporate structure,
record-keeping location, and/or as to any additional place of business,
or expiration of any special license(s), or transfer of assets, or
technology, to a third party, or proposed change in ownership in excess
of twenty five percent, (25%), of outstanding shares;
e. CLIENT does not own, control, manage, participate in management, or
have any involvement and/or association whatsoever with the business of
any Account-debtor related to any Accounts sold and assigned hereunder;
f. There are no financing statements now on file in any public office
governing, any Account, Inventory or work in process of CLIENT in which
CLIENT is named in or has signed as the debtor, except the financing
statement or statements filed or to be filed in respect to this
Agreement, or those statements now on file that have been disclosed in
writing by CLIENT to CAPCO. CLIENT will not execute any financing
statements pledging Accounts receivables, inventory or work in process,
in favor of any other person or entity, excepting CAPCO, for the term
of this Agreement;
g. CLIENT'S taxes are not delinquent nor has CLIENT been subject to a
tax levy by any governmental entity nor are there now on file in any
public office tax liens affecting CLIENT other than those
delinquencies, levies and/or liens which have been disclosed by CLIENT
to CAPCO;
h. All records, statements, books, or other documents shown to CAPCO by
CLIENT at any time, either before, or after the signing of the
Agreement are true and accurate;
i. CLIENT has served or caused to be served any and all preliminary
10-day notices required by law to perfect or enforce any mechanic's
lien for All Accounts to insure perfection of ownership for CAPCO and
the information contained on those preliminary 10-day notices is true,
correct, and properly recorded, to Seller's knowledge and belief;
j. Waivers and releases for all labor, services, equipment, or material
of CLIENT and others will be submitted on CAPCO 's form concurrent with
Accounts.
14. CLIENT and CAPCO agree that CAPCO will have FULL RECOURSE against
CLIENT and CLIENT shall be liable to repay to CAPCO any amount
paid by CAPCO to CLIENT in consideration for the sale, transfer,
and assignment of Accounts.
15. All Accounts shall be the sole property of CAPCO, but if for any
reason a payment owing on said Accounts shall be paid to CLIENT;
CLIENT shall promptly notify CAPCO of such payment, shall hold any
check, draft or money so received in trust and for the benefit of
CAPCO , and shall pay over such check or draft in-kind, or money,
to CAPCO promptly and without delay. All of CLIENT'S invoices
shall bear the address of CAPCO'S LOCK BOX as the "REMIT TO"
address, and CLIENT agrees that ALL remittances for payment on ALL
Accounts shall be made to the CAPCO LOCK BOX or other repository
authorized in writing by CAPCO.
16. CLIENT will furnish CAPCO periodic statements, accounts receivable
agings, journals, bank records, and other information as requested
by CAPCO from time to time.
17. CLIENT will not pledge the credit of CAPCO to any other person, or
business for any purpose whatsoever.
Form Date 6/97 Page 2 Initial__________
18. CLIENT is properly licensed and authorized to operate the business
of Pacific Coast Technologies, Inc., under the trade name of
Pacific Aerospace & Electronics, Inc.- U.S. Electronics Group-
Interconnect Division, and CLIENT'S trade name has been properly
filed and published as required by the laws of the State of
Washington. 19. CLIENT'S business is solvent. 20.CLIENT will not
sell Accounts, or pledge Accounts to any party, except to CAPCO
for the period of this Agreement unless specific Accounts are
subordinated and released by CAPCO in writing.
21. CLIENT will not transfer, pledge, or give a security interest of
the Assets sold or Collateral granted to CAPCO to any other party.
22. CLIENT will not change, or modify the terms of the original sold
and assigned Account with Customer unless CAPCO first consents to
such change in writing. CAPCO agrees to provide a prompt response
to CLIENT request for modification or change with respect to an
Assigned Account . For example, CLIENT may not extend credit to a
Customer BEYOND NET 30 DAYS OR THE TIME SET FORTH ON THE FACE OF
THE SOLD AND ASSIGNED ACCOUNT WITHOUT PRIOR WRITTEN CONSENT FROM
CAPCO .
23. NOTICE OF DISPUTE: CLIENT must immediately notify CAPCO of
Customer Disputes greater than $400.00 in total for any one
Customer.
24. POWER OF ATTORNEY: In order to carry out this Agreement and avoid
unnecessary notification of Customers. CLIENT irrevocably appoints
CAPCO, or any person designated by CAPCO, as its special attorney
in fact, or agent, with power to :
a. strike out CLIENT'S address on all Accounts mailed to Customers and
put on CAPCO 's address.
b. receive, direct and forward, open, and dispose of all mail addressed
to CLIENT, or to CLIENT'S fictitious trade name via CAPCO's address.
c. endorse the name of CLIENT, or CLIENT'S fictitious trade name on any
checks or other evidences of payment that may come into the possession
of CAPCO on Accounts purchased by CAPCO and on any other documents
relating to any of the Accounts or to assigned Collateral.
d. in CLIENT'S name, or otherwise, demand, xxx for, collect, and give
release for any and all monies due, or to become due on Accounts sold
and assigned hereunder.
e. do any and all things necessary and proper to carry out the purpose
intended by this Agreement.
f. execute any documents necessary to perfect or to continue any
Security Interest and without further authorization from CLIENT file a
carbon, photograph, facsimile, or other reproduction of any financing
statement for use as a financing statement
The authority granted CAPCO shall remain in full force and effect until
all Accounts are paid in full and any indebtedness of CLIENT to CAPCO
is discharged. CAPCO COVENANTS:
25. CAPCO reserves the sum of ($3,000,000.00) THREE MILLION AND 00/100
for the purchase of ALL of CLIENT'S Accounts. These funds are
available daily at CLIENT'S option, subject to restriction as
governed by the Advance Formula. Daily availability will be
communicated to CLIENT via CAPCO'S Availability / Advance Request.
26. This Agreement shall have an initial term ending with the first
full (12) TWELVE calendar months and unless terminated by either
party giving not less than thirty (30) days prior written notice.
27. STATEMENT OF Acceptable/Eligible Accounts: CAPCO shall identify in
writing all Acceptable/Eligible Accounts and provide to CLIENT,
upon request, a written statement thereof (Weekly Aging Report).
ACCOUNTING & FEES :
28. Funds advanced by CAPCO to CLIENT are subject to DAILY FEE OF
CUPERTINO NATIONAL BANK PRIME RATE + 5.000% /360 (EQUIVALENT TO A
MONTHLY DISCOUNT FEE OF CUPERTINO NATIONAL BANK PRIME RATE +
5.000% /12 ) PER CENT calculated on the daily balance (as reported
on the CLIENT Liability Detail Report) owing to CAPCO. This period
will usually be 1 calendar day except for weekends and or weeks
where holidays or other non-operating days prevent the fee from
being taken on a daily basis.
29. CAPCO will provide to the CLIENT daily, via fax , an advance and
availability request. This report must be acknowledged and
returned, via fax, to CAPCO no later than 11:30AM if a deposit or
wire transfer is to be made the same date as the request form was
issued to the CLIENT by CAPCO .
30. PAYMENT PROCESSING: All payments received by CAPCO will be applied
to CLIENT's Outstanding Balance daily following a 3 (THREE)
business day hold to allow for the application of collected funds.
31. DISPUTED ACCOUNT: CLIENT will immediately notify CAPCO of any
Account subject to a Customer Dispute
Form Date 6/97 Page 3 Initial__________
(See Paragraph 10 for definition) of any kind whatsoever and said
Account shall be removed as an Acceptable/Eligible Account.
32. INVOICING ERRORS: Mistaken, incorrect and/or erroneous invoicing,
submitted by CLIENT to CAPCO may at CAPCO 's discretion be deemed
a Customer Disputed sold and Assigned Account and shall be removed
as an Acceptable/Eligible Account.
COLLATERAL:
33. As Collateral for the payment of any indebtedness now owing, or in
the future owing, by CLIENT to CAPCO, CLIENT hereby grants to
CAPCO a security interest in the following property:
A. SEE EXHIBIT A ATTACHED.
34. CLIENT will maintain such insurance covering CLIENT'S business
and/or the property of CLIENT'S Customers as is customary for
businesses similar to the business of CLIENT.
35. CLIENT shall complete any and all documents required to provide
CAPCO a perfected security interest/lien in the Collateral pledged
to CAPCO.
DEFAULT:
36. Any one or more of the following shall constitute an event of
default:
a. If CLIENT shall fail to pay any amount of indebtedness to CAPCO when
owing;
b. If CLIENT shall be in breach of any term, provision, Warranty, or
representation under this Agreement, or any other agreement related
hereto;
c. If bankruptcy or insolvency proceedings shall be instituted by or
against CLIENT.
d. If the Collateral shall be attached, levied upon, seized in any
legal proceeding, and not released within 5 working days thereof;
e. If CLIENT shall cease doing business and there shall exist any
indebtedness or commitments by CLIENT to CAPCO ;
f. Any Accounts, documents, statements, or other writings submitted by
CLIENT to CAPCO prove false or inaccurate in any material respect;
g. If CLIENT has contributed to, or aggravated Account debtor's
problem, insolvency, and/or said Account debtor's ability and/or
willingness to pay any Accounts;
h. If any unpaid judgment or tax lien exists against CLIENT;
i. If CAPCO with reasonable cause and in good faith determines that
it's purchased asset or collateral is impaired for any reason
whatsoever;
j. Terminating prior to end of initial term;
k. Any change in CLIENT'S place of business, name, legal entity,
corporate structure, record-keeping location, and/or as to any
additional place of business, or expiration of any special license(s),
or transfer of assets, or technology, to a third party, or proposed
change in ownership in excess of twenty five percent, (25%), of
outstanding shares.
REMEDIES AFTER DEFAULT:
37. In the event of any default CAPCO may do any one or more of the
following:
a. Declare any indebtedness secured hereby immediately due and payable;
b. Notify any and all Customers and take possession of the Accounts and
Collateral and collect any receivables or funds paid to CLIENT all
without judicial process;
c. Require CLIENT to assemble the Collateral and the records pertaining
to receivables or other assets pledged as collateral, and make them
available to CAPCO, at a place designated by CAPCO;
d. Enter the premises of CLIENT and take possession of the Collateral
and of the records pertaining to the receivables and any other
Collateral;
x. Xxxxx extensions, compromise claims and settle receivables for less
than face value, all without prior notice to CLIENT;
f. Use, in connection with any assembly or disposition of the
Collateral, any trademark, trade name, trade style, copyright, patent
right or technical process used or utilized by CLIENT;
g. Return any surplus realized to CLIENT after deduction of reasonable
expenses, attorney's fees, attorney's fees on appeal, collection costs,
independent third party auditors, incurred by CAPCO in resolving said
default;
Form Date 6/97 Page 4 Initial__________
h. Hold CLIENT liable for any deficiency.
i. Establish a reserve from the collection of Accounts to meet
reasonable legal expenses associated with a future defense resulting
from an action brought against CAPCO by CLIENT, CLIENT's customer, or
other third party, as a result of an action of default.
j. Injunction against CLIENT taking any action with regard to the
Accounts or Collateral.
k. CAPCO is authorized by CLIENT to receive, direct and forward, open,
and dispose of all mail addressed to CLIENT at any address used by
CLIENT to receive mail.
GENERAL:
38. After termination CLIENT remains fully responsible to CAPCO for
any indebtedness existing, or which may yet arise in connection
with Accounts that remain unpaid.
39. If during the term hereof CLIENT fails to make any payment
required, CAPCO may at its discretion pay the same and charge
CLIENT therefore.
40. CLIENT will not, under any circumstances, or in any manner
whatsoever, interfere with any of CAPCO's rights under this
Agreement.
41. TAX COMPLIANCE: CLIENT will furnish CAPCO upon request
satisfactory proof of payment and/or compliance with all Federal,
State and/or Local tax requirements.
42. NOTICE OF LEVY: CLIENT will promptly notify CAPCO of any
attachment or any other legal process levied against CLIENT.
43. LEGAL FEES: The losing party will pay any and all legal expenses
and reasonable attorney's fees, paralegal fees, staff overtime
expense, travel costs, costs on appeal, or other reasonable
collection costs, that the prevailing party may incur as a result
of either CLIENT or CAPCO enforcing this Agreement one against the
other.
44. HOLD HARMLESS: CLIENT shall hold CAPCO harmless against any
liability, damages, loss, attorneys' fees and costs of any type
due to any action by a Customer arising from CAPCO'S collecting or
attempting to collect any Accounts so long as these collections
are performed in a commercially reasonable manner and in
compliance with all applicable laws, rules and regulations. CLIENT
maintains the primary responsibility for collections efforts,
until the occurrence of an event of default.
45. BINDING ON FUTURE PARTIES: This Agreement inures to the benefit of
and is binding upon the heirs, executors, administrators,
successors and assigns of the parties thereto.
46. CUMULATIVE RIGHTS: All rights, remedies and powers granted to
CAPCO in this Agreement, or in any note, or other agreement given
by CLIENT to CAPCO, are cumulative and may be exercised singularly
or concurrently with such other rights as CAPCO may have. These
rights may be exercised from time to time as to all or any part of
the pledged Collateral as CAPCO in its discretion may determine.
47. WRITTEN WAIVER: CAPCO may not waive its rights and remedies unless
the waiver is in writing and signed by CAPCO. A waiver by CAPCO of
a right, or remedy under this Agreement on one occasion is not a
waiver of the right, or remedy on any subsequent occasion.
48. WASHINGTON LAW: This Agreement shall be governed by and construed
in accordance with the laws of the State of WASHINGTON. CLIENT
hereby consents to the exclusive jurisdiction of the State of
Washington in any dispute arising hereunder or related hereto.
Venue for any actions shall be in King Co. WASHINGTON.
49. INVALID PROVISIONS: If any provision of this Agreement shall be
declared illegal or contrary to law, it is agreed that such
provision shall be disregarded and this Agreement shall continue
in force as though such provision had not been incorporated
herein.
50. ENTIRE AGREEMENT: This instrument contains the entire Agreement
between the parties. Any addendum or modification hereto will be
signed by both parties and attached hereto.
51. EFFECTIVE: This Agreement becomes effective when it is accepted
and executed by the authorized officers of CAPCO .
52. Execution of this document may contain multiple signature pages;
each shall be considered, when combined, as one signed and
executed document.
Executed the 12th day of February, 2003 at Wenatchee, Washington.
Form Date 6/97 Page 5 Initial__________
PACIFIC COAST TECHNOLOGIES, INC.
By:_____________________________
Title: ___________________________
By:_____________________________
Title: ___________________________
CAPCO FINANCIAL COMPANY, A DIVISION OF CUPERTINO NATIONAL BANK
Accepted this _____ day of _____________, 200_, at Bellevue, Washington
By:_________________________________________
Title: ____________________________
Form Date 6/97 Page 6 Initial__________
LINE OF CREDIT
PACIFIC COAST TECHNOLOGIES, INC.
EXHIBIT "A"
ALL ACCOUNTS, CONTRACT RIGHTS, CHATTEL PAPER, DOCUMENTS, INSTRUMENTS AND
GENERAL INTANGIBLES NOW OWNED OR HEREAFTER ACQUIRED AND PROCEEDS,
THEREOF:
ALL RIGHT, TITLE, AND INTEREST IN INVENTORY, RAW MATERIALS, WORK IN
PROGRESS AND FINISHED GOODS NOW OWNED OR HEREAFTER ACQUIRED AND PRODUCTS
AND PROCEEDS THEREOF:
Form Date 6/97 Page 7 Initial__________
Form Date 6/97 Page 1
Initial__________
