EXHIBIT (10)(x)(b)
ACCOUNTS RECEIVABLE FINANCING MODIFICATION AGREEMENT
This Accounts Receivable Financing Modification Agreement is entered into
as of November 7, 2002, by and between Syntellect Inc. (the "Borrower") and
Silicon Valley Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may
be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among
other documents, an Accounts Receivable Financing Agreement, dated May 14, 2002
by and between Borrower and Bank, as may be amended from time to time (the
"Accounts Receivable Financing Agreement"). Capitalized terms used without
definition herein shall have the meanings assigned to them in the Accounts
Receivable Financing Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness" and the Accounts Receivable Financing Agreement and any and
all other documents executed by Borrower in favor of Bank shall be referred to
as the "Existing Documents."
2. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Accounts Receivable Financing Agreement:
1. Pursuant to Section 3.5 entitled "Collateral Handling Fee",
the Collateral Handling Fee shall continue to be 0.75%. The
Collateral Handling Fee shall revert to 0.25% upon the later
of either (a) February 1, 2003 or (b) one month following the
quarter ending in which Borrower is in compliance with Section
6.2(L) and no other Event of Default has occurred and is
continuing.
2. Item "(L)" under Section 6.2 entitled "Affirmative Covenants"
is hereby amended in part to require Borrower's consolidated
earnings before interest expense, income taxes, depreciation,
amortization of intangible assets and other non-cash charges
made to Borrowers' income to not be less than $1 for the
fiscal quarter ended September 30, 2002.
B. Waiver of Financial Covenant Default:
1. Bank hereby waives Borrower's existing default under the
Accounts Receivable Financing Agreement by virtue of
Borrower's failure to comply with the financial covenant
stated in Item "(L)" under Section 6.2 entitled "Affirmative
Covenants" as of fiscal quarter ended June 30, 2002. Bank's
waiver of Borrower's compliance of this covenant shall apply
only to the foregoing period. Accordingly, for the quarter
ended September 1, 2002, Borrower shall be in compliance with
this covenant, as amended herein.
Bank's agreement to waive the above-described default (1) in
no way shall be deemed an agreement by the Bank to waive
Borrower's compliance with the above-described covenant as of
all other dates and (2) shall not limit or impair the Bank's
right to demand strict performance of this covenant as of all
other dates and (3) shall not limit or impair the Bank's right
to demand strict performance of all other covenants as of any
date.
3. CONSISTENT CHANGES. The Existing Documents are each hereby amended
wherever necessary to reflect the changes described above.
4. NO DEFENSES OF BORROWER. Borrower agrees that, as of this date, it has no
defenses against the obligations to pay any amounts under the Indebtedness.
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5. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Indebtedness, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Documents. Except as
expressly modified pursuant to this Accounts Receivable Financing Modification
Agreement, the terms of the Existing Documents remain unchanged and in full
force and effect. Bank's agreement to modifications to the existing Indebtedness
pursuant to this Accounts Receivable Financing Modification Agreement in no way
shall obligate Bank to make any future modifications to the Indebtedness.
Nothing in this Accounts Receivable Financing Modification Agreement shall
constitute a satisfaction of the Indebtedness. It is the intention of Bank and
Borrower to retain as liable parties all makers and endorsers of Existing
Documents, unless the party is expressly released by Bank in writing. No maker,
endorser, or guarantor will be released by virtue of this Accounts Receivable
Financing Modification Agreement. The terms of this paragraph apply not only to
this Accounts Receivable Financing Modification Agreement, but also to any
subsequent Accounts Receivable Financing modification agreements.
6. COUNTERSIGNATURE. This Accounts Receivable Financing Modification
Agreement shall become effective only when executed by Borrower and Bank.
This Accounts Receivable Financing Modification Agreement is executed as of the
date first written above.
BORROWER: BANK:
SYNTELLECT INC. SILICON VALLEY BANK
By: /S/ Xxxxxxx X. Xxxxxxx By: /S/ Xxxxxxx X. Xxx, Xx.
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Name: Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxx, Xx.
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Title: V.P. and Chief Executive Officer Title: Vice President
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