EXHIBIT 10.19
LOAN AND SECURITY AGREEMENT
Textron Financial Corporation VALERENT, INC., INTERNETWORK EXPERTS, INC.,
I-SECTOR CORPORATION, ISECOLDSUB, INC.,
STRATASOFT, INC.
0000 Xxxxx Xxxx, Xxxxx 000 Xxxxx Legal Name
Xxxxx Xxxxx, XX 00000 0000 XXXXXXXXX XXXXXXX
Xxxxxx Address
Houston, TX 77074
City, State, Zip Code
Gentlemen:
1. We are an authorized Reseller of goods manufactured and/or
distributed by various manufacturers and distributors (hereinafter called
"Manufacturer"). As such, we from time to time buy goods from Manufacturer to be
held by us as our inventory for sale by us in the normal course of our business.
We may, as more fully set forth herein, from time to time obtain loans from you
in order to finance the purchase of certain of such goods, including parts and
accessories therefor, from Manufacturer, and desire by this Agreement to set
forth in writing our understanding of our loan arrangements with you and secure
repayment of such loans and other related debts and liabilities we may have to
you, whether now existing or hereafter arising.
2. Upon our request from time to time, you may, at your sole
discretion and without any obligation to do so, make loans to us, under such
terms and with such conditions as you shall specify, to enable us to acquire
rights in Inventory from Manufacturers pre-approved by you for financing
programs. We understand that each such loan will be solely at your discretion,
and we expressly disclaim any right to expect otherwise, either from the course
of our dealing, our need therefore, your dealings with others, your arrangements
with Manufacturer, or otherwise. Conversely, nothing herein will prevent us from
obtaining financing from other sources, provided that you are completely
satisfied that such other financing will not jeopardize our ability to comply
with our financial obligations to you and that adequate procedures will be
implemented to absolutely assure your ability to identify your Collateral.
Accordingly, we will obtain both your written permission prior to arranging such
other financing and such acknowledgements and undertakings from our other
lenders as you may require.
We understand that certain terms and conditions applicable to loans
obtained by us from you will be set forth in materials to be made available from
time to time to us and other Resellers, the terms of which, as revised from time
to time, being deemed incorporated herein by reference. We understand that these
materials are subject to change by you at any time and from time to time, and
expressly assume the responsibility of confirming directly with you, upon our
request for each loan, the exact terms and conditions then being stated by you,
including without limitation rate of interest and terms of repayment. In no
event will we view such materials as a commitment or other offer on your part to
lend, and we will have no right to any loan under any particular terms until
actually made and under the terms so made. We understand and agree that the full
amount of each loan will be paid to you on its due date without deduction for
any sums due from Manufacturer or any Credit Memo that may have been issued to
you, unless you have previously notified us that you have received and applied
the amount of the Credit Memo issued by the Manufacturer.
We understand that you may, from time to time, issue advices to us.
Such advices may include, but need not be limited to, periodic or monthly
statements of our account, periodic letter advices in the nature of statements
of account, issued from time to time, and letter forms or other forms of notices
of due dates of finance plan payments and of the specific terms of loans which
we have with you. Unless we, within ten (10) days from the date of any such
advice, give you written and itemized objection to the contents of such advice,
we shall be fully bound thereby and acknowledge that the content of such advice
is true, correct, and complete, and accurately reflects our obligations to you
as of the date thereof.
In connection with each loan requested, we will deliver to you such
other writings as you shall require, which may include notes or other
appropriate evidence of debt. Such notes or other evidence of debt, Manufacturer
invoices, and other like materials as may be revised from time to time
("Collateral Documents"), together with this Agreement, contain our entire
understanding, and we acknowledge that we will not be relying upon any prior
oral or written promises or undertakings or future oral promises between us. No
modification hereof or of the Collateral Documents will be binding upon you
unless in a writing duly executed on your behalf by an officer holding the rank
of Vice President or higher.
We hereby authorize you to disburse the proceeds of each loan directly
to Manufacturer on our behalf. Further, we shall and hereby authorize
Manufacturer to deliver its invoice for Inventory, together with all
Certificates of Origin, directly to you. You may assume that all such invoices
so submitted are authentic and accurate and that they have been submitted on our
behalf and with our permission. Receipt by you from us or Manufacturer of an
invoice for Inventory shall be your authority to make a loan to us under terms
and conditions then being stated by you. In addition we shall and hereby
authorize the Manufacturer to issue all Credit Memos directly to you.
We acknowledge that the term "Prime Rate", as used in the Collateral
Documents in reference to the rate of interest applicable to loans to us, will
mean the average of the Prime Rates (the base rate for corporate loans at large
U.S. money center commercial banks) quoted in the Wall Street Journal under the
caption "Money Rates", and agree that the interest rate applicable to our loans
from you will automatically change from time to time effective upon each change
in the published Prime Rate. We further agree that interest on our loans from
you will be calculated on the basis of a 360 day year but will be chargeable for
the actual days that principal is outstanding in the then current year.
3. We acknowledge that our financial arrangements with you are
completely independent of our arrangements with Manufacturer, and that neither
you nor Manufacturer are an agent for or acting on behalf of the other. We are
not relying, in our understanding with you, on any statements, promises or
representations, oral or written, made by Manufacturer, whether or not
purportedly on your behalf, relating to the subject matter hereof and of our
loans with you. Although we may receive official literature, brochures and other
written materials disseminated by you through Manufacturer, we expressly assume
the risk that the materials so received are the most current, up to date
materials then authorized by you to be disseminated. None of our obligations to
you will be affected or impaired, or be subject to any defense, set-off,
counterclaim, crossclaim or recoupment, by reason of any claim which we now or
hereafter have against Manufacturer or its agents, including without limitation
any claim for breach of express or implied warranty of title, or otherwise
related to the condition of the Collateral or our dealings with Manufacturer.
4. As used herein, the following terms shall have the following
meaning:
a) "Inventory" means all present and future Inventory,
as that term is defined in the Rhode Island Uniform Commercial Code ("Code"),
together will all parts and accessories, and all replacements, substitutions and
additions thereof or thereto.
b) "Accounts" means all present and future Accounts, as
that term is defined in the Code.
c) "General Intangibles" means all present and future
General Intangibles, as that term is defined in the Code, and shall include,
without limitation, all Credit Memos and other sums due from Manufacturer, all
books, records, ledgers, journals, check books, computer tapes and disks, print
outs and other information and sources of information, and all licenses,
permits, franchises, tradenames and other rights and privileges used or useful
in the conduct of our business and the sale of Inventory.
d) "Equipment" means all present and future Equipment,
as that term is defined in the CODE, together with all parts and accessories,
and all replacements, substitutions and additions thereof or thereto.
e) "Investment Property" means all present and future
Investment Property, as that term is defined in the CODE.
f) "Proceeds" means present and future Proceeds, as that
term is defined in the CODE, and shall include, without limitation, insurance
payable by reason of loss or damage to any of the Collateral. All Proceeds
received by us will be held in trust for you until our loans are paid, and we
will promptly deliver all Proceeds to you.
g) "Collateral" means, individually and collectively,
Inventory, Accounts, General Intangibles, Equipment, Investment Property and
Proceeds.
5. a) In order to secure repayment to you of each loan made
by you to us the proceeds of which enable us to acquire rights in or the use of
Inventory, we hereby grant to you a purchase money security interest in such
Inventory, the Proceeds thereof and all General Intangibles related thereto, to
secure repayment of such loan. It is intended by this subparagraph (a) that only
the Inventory so acquired, with Proceeds and related General Intangibles, will
secure the loan the proceeds of which enabled us to acquire rights in or the use
of such Inventory.
b) In order to secure repayment to you of all debts and
liabilities we may now or hereafter have to you under this Agreement or any
other agreement, whether such debt or liability be obtained by you by
assignment, negotiation or otherwise, and whether direct or indirect, primary or
secondary, absolute or contingent, or otherwise, including but not limited to
all loans made by you to us to finance the purchase of Inventory, we hereby
grant to you a security interest in all of our Inventory, Accounts, General
Intangibles, Equipment and Investment Property no matter how obtained by us,
whether now existing or hereafter acquired, and the Proceeds of all of the
foregoing.
c) All payments made by us will be deemed to be applied
by you first to the loan (i) the proceeds of which enabled us to acquire rights
in or the use of Inventory which we have previously sold and (ii) with the
earliest due date.
6. We hereby represent to you that all information provided by us
to you in connection with our application for each loan from you is and will be
complete and accurate in every respect. WE WILL IMMEDIATELY NOTIFY YOU IN
WRITING OF ANY CHANGE IN ANY OF THIS INFORMATION.
7. We will from time to time execute and/or deliver or cause to
be executed and/or delivered to you such financing statements, amendments to
financing statements, continuation statements, documents of title,
manufacturers' certificates of origin, warehouse receipts, bills of lading,
vehicle titles, waivers, consents and such other manner of things, and take all
manner of actions, as you may from time to time request which are in your sole
opinion necessary or desirable in order to perfect, protect, maintain, continue,
realize and/or enforce your rights and security interests granted herein. This
shall include, without limitation, the written waiver by the landlord of each
location at which any Collateral is located. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement and
may be filed in any public office as a financing statement.
8. We will maintain the Inventory in excellent, salable
condition, consistent with the highest standards in the industry, and will
comply with all applicable laws relating to our use thereof. We will provide you
or your designated representatives with access, at any time, during normal
business hours, whether announced or unannounced, to each location at which any
Collateral is located, to inspect and examine the Inventory and other Collateral
and business records, including without limitation all financial records. We
agree, at our sole cost, to keep all Inventory insured against risks covered by
standard forms of fire, theft and extended coverage and such other risks as may
be reasonably required by you and under policies issued by an insurance company
or companies and in amounts satisfactory to you. You shall be named to the
extent your interest may appear under a Lender's Loss Payable Clause in such
policy, which shall provide that the insurance cannot be canceled without at
least thirty (30) days prior written notice to you and shall insure you
notwithstanding any act or neglect on our part. At our expense, we shall furnish
you with evidence of the same in form satisfactory to you, and shall provide you
with a Certificate thereof naming you as certificate holder. We will promptly
remit to you in the form received, with all necessary endorsements, any Proceeds
of such insurance. You may make and settle claims and endorse our name on any
checks or drafts. You may apply any Proceeds of insurance which may be received
by you toward payment of any obligations or liabilities owed to you by us,
whether or not then due, in such order of application as you may determine.
Loss, damage or destruction of all or any of the Collateral
shall not affect or diminish our liabilities to you and we assume all
responsibility and risk for the existence, character, quality, condition, value,
and delivery of Inventory.
9. We will pay and/or cause to be paid all taxes, levies and
other governmental charges and assessments payable on or with respect to the
Collateral and any premises at which the Collateral is located, which if unpaid
may result in a lien or imposition thereon. Such taxes, levies, charges and
assessments will be paid prior to the date that any penalty for late payment may
be assessed with respect thereto, and if requested by you we will, at our
expense, provide you with receipts or other evidence of payment in form
satisfactory to you.
10. We will not suffer or permit any lien, security interest,
charge, claim or encumbrance to be placed on any of the Collateral, other than
in your favor, or suffer or permit any interest to exist therein which is
adverse to your own. We represent that we are, and agree to remain, the sole and
absolute owner of the Collateral, until sold in the ordinary course of our
business, and are and will remain qualified under the terms of all applicable
laws and under our dealership arrangements with Manufacturer to conduct our
business as presently conducted, with all necessary governmental and other
licenses, consents and authorizations having been obtained.
11. At your option, without any obligation to do so, you may pay
and discharge taxes, liens, levies, security interests or other encumbrances
against the Collateral, may pay for insurance on and for the maintenance and
preservation of the Collateral and perform on our behalf any other obligation
required to be performed by us hereunder but which we have failed to so do. We
shall reimburse you on demand for any payment made or any expense incurred by
you pursuant to the authority hereof, with interest at the highest rate
chargeable on any of our loans with you, and will pay you a late charge of 1.5%
per month of the amount due to you, or the highest legally permissible rate if
lower.
12. We will furnish you such information regarding our business
and financial condition as you may request from time to time, including without
limitation such financial statements, in such form and bearing such
certifications, as you shall require. We agree that you may audit or cause to be
audited our books and records at any and all times, during normal business
hours, whether announced or unannounced, and to permit you access to each
location at which any of our General Intangibles are located.
13. We will provide you with written notice of the following
matters immediately upon the occurrence thereof:
a) A change in any information provided by us to you
herein, in any application made by us in connection with any loan, or otherwise,
including without limitation, any change in the location of any Collateral or in
any other circumstances regarding the Collateral or our business operations;
b) Loss, theft, or substantial damage or destruction of
any of the Collateral or related to our business operations generally; or
c) Any other matter which might have a material adverse
affect on our financial condition or operations or which, upon the giving of
notice or passage of time, or both, would result in an event of default by us
hereunder.
14. Any one or more of the following shall be an event of default
by us under this Agreement:
a) Failure by us or any person jointly or otherwise
liable to you for our obligations to you, as surety, guarantor or otherwise
("Other Obligor") to pay any amount due you, as and when due, contained or
referred to herein or in any other instrument, document, or agreement to which
we or such Other Obligor are a party or by which we or such Other Obligor are
bound to you, whether now existing or hereafter created; or
b) Failure by us or any Other Obligor to perform or
comply with any other obligation, covenant or liability contained or referred to
herein or in any other instrument, document, or agreement to which we or such
Other Obligor are a party or by which we or such Other Obligor are bound to you,
whether now existing or hereafter created, and such failure, if reasonably
susceptible of cure, is not cured within fifteen (15) days of the occurrence
thereof; or
c) If any warranty, representation, or statement made or
furnished to you by us or on our behalf or on behalf of an Other Obligor,
including any representation made on our behalf by Manufacturer, proves to be
false, misleading or incomplete in any respect; or
d) Loss, theft or substantial damage or destruction of
any of the Collateral, or the making of any levy, seizure, or attachment thereof
or thereon; or
e) Dissolution, merger, consolidation, sale or other
disposition of a controlling interest in our ownership or of substantially all
of our assets, termination of existence, insolvency, business failure,
appointment of a receiver, trustee, sequestrator, conservator, or other judicial
representative, whether similar or dissimilar, for us or for all or any part of
our property, assignment by us for the benefit of creditors or the commencement
of any proceeding by or against us under any provision of any federal or state
bankruptcy or insolvency laws; or
f) Failure by us to pay any obligation(s) or
liability(ies) whatsoever, past, present or future, when due to any other
creditor, or the occurrence of any event of default by us under any agreement
with any of our respective creditors, including without limitation the
occurrence of an event of default under any lease relating to any premises upon
which all or any part of our Inventory or other Collateral is located; or
g) If we give notice of a Bulk Sale or intended Bulk
Sale, or call a meeting of our respective unsecured creditors or offer a
composition or extension to such creditors, or cease to operate our respective
business.
15. Upon the occurrence of an event of default, you shall have the
right to repossess the Inventory and also any and all rights available under the
Code, including, without limitation, the right to declare any and all unpaid
balances of principal, interest, costs and expenses arising out of any and all
of our obligations or liabilities to you, whether past, present or future,
direct or indirect, matured or unmatured, liquidated or unliquidated,
immediately due and payable without notice to or demand on us. We irrevocably
authorize you or your agent to enter all premises to take possession of and
remove the Inventory and other Collateral and release you from any and all
liability with respect to such entry or removal. We shall in case of default, if
you so request, assemble and deliver the Inventory and other Collateral, at our
expense, to a place to be designated by you. We shall pay all of the costs you
incur in the enforcement of any of our obligations to you or the collection of
any liabilities owed to you by us, including, without limitation, costs,
expenses and reasonable attorneys' fees. If any notification of intended
disposition of any of the Inventory or other Collateral is required by law, such
notification shall be deemed reasonably and properly given if mailed by ordinary
mail or overnight delivery service at least ten (10) days before such
disposition, postage prepaid, addressed to us, either at our address shown in
this Agreement, or at such other address as we may have designated to you in
writing.
16. To the extent permitted by applicable law, we authorize you,
your designee, the Clerk of the Court, or any attorney of any Court, in the
State of Rhode Island or any other state, to appear for us at any time in any
and all actions and to confess judgment against us for all sums then owed to
you, whether or not then payable, together with an attorney's fee of 15% of all
sums then owed and/or for the recovery of any or all of the Inventory in our
possession. Wherever this provision is prohibited, unenforceable or unlawful, it
is deemed stricken from this Agreement.
17. Any law, custom or usage to the contrary notwithstanding, you
shall have the right at all times to enforce the covenants and provisions of
this Agreement in strict accordance with the terms hereof, notwithstanding any
conduct or custom on your part in refraining from so doing at any time or times.
Your failure at any time to invoke your rights under the covenants and
provisions of this Agreement strictly in accordance with the same shall not be
construed as having created a custom in any way or manner contrary to the
specific terms and provisions of this Agreement or as having in any way or
manner modified, altered or waived the same. Time is of the essence in our
performance hereunder and under all other agreements with you. All of your
remedies are cumulative and not alternative, and can be exercised in any order
and in any manner, separately or simultaneously, and from time to time until all
liabilities and obligations to you are satisfied in full.
18. This Agreement may be assigned by you, but we may not assign
this Agreement without your prior written consent. If you assign this Agreement,
you shall have no further obligation hereunder. All of your rights hereunder
shall inure to the benefit of your successors and assigns and all our
obligations shall bind our successors and assigns. If there be more than one
party obligated to you under this Agreement, their obligations hereunder shall
be joint and several, and the terms "we" "us" or "our" as used herein shall
refer to them jointly and severally.
19. We authorize and empower you or your employees, agents or
representatives, on our behalf, and in our name, to complete and supply any
omission or blank spaces in this Agreement and in any documents or financing
statements executed by us and including amendments and continuations thereof
under the Code; to execute and/or have acknowledged any form of security
instruments, notes, drafts and documents; and to make any requisite affidavits
which may be necessary or required by you, and/or which you may desire to
evidence or secure advances made by you pursuant to the terms of this Agreement.
All of the foregoing may be executed in such form and substance as you in your
sole discretion may deem necessary or proper, and this power of attorney, being
coupled with an interest, is irrevocable.
20. Our officers, by execution hereof, warrant and represent to
you that we are a duly formed corporation and are qualified to do business in
the state(s) in which our place(s) of business is (are) located; and, at a Board
of Directors meeting duly convened, our officer(s) were properly authorized to
execute and deliver this Agreement and all other documents whether hereunder or
otherwise; that the execution and delivery of this Agreement does not contravene
the Articles of Incorporation, By-Laws, or any agreement, document or instrument
to which we are a party or by the terms of which we are bound.
21. Any provision or part thereof in this Agreement found upon
judicial interpretation or construction to be prohibited by law shall be
ineffective to the extent of such prohibition, without invalidating the
remaining provisions hereof. All words used shall be understood and construed to
be of such gender or number as the circumstances may reasonably require.
22. THIS AGREEMENT SHALL BE DEEMED EFFECTIVE WHEN ACCEPTED AND
EXECUTED BY YOU IN THE STATE OF RHODE ISLAND, AND THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF RHODE ISLAND.
23. AS AN INDEPENDENT COVENANT, WE IRREVOCABLY CONSENT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF RHODE ISLAND IN ANY AND ALL ACTIONS
BETWEEN US WHETHER UNDER THIS AGREEMENT OR OTHERWISE AND TO THE SERVICE OF
PROCESS THEREIN BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO US AT THE
ADDRESS AS SET FORTH HEREIN OR ON YOUR RECORDS, AND IRREVOCABLY WAIVE JURY TRIAL
AND THE RIGHT THERETO IN ANY AND ALL ACTIONS BETWEEN US, WHETHER UNDER THIS
AGREEMENT OR OTHERWISE.
WE HEREBY ACKNOWLEDGE THAT WE HAVE READ AND UNDERSTAND ALL OF
THE TERMS AND PROVISIONS OF THIS AGREEMENT.
Intending to be legally bound, signed and delivered on
February 18th, 2004:
VALERENT, INC.
----------------------------------------------------
(Corporate Name)
By: /s/ Xxxxx Xxxx
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President
Attest /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------------
Secretary
INTERNETWORK EXPERTS, INC.
-----------------------------------------------------
(Corporate Name)
By: /s/ Xxxx X. Xxxx
-------------------------------------------------
President
Attest: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------------
Secretary
(CORPORATE SEAL)
I-SECTOR CORPORATION
-----------------------------------------------------
(Corporate Name)
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
President
Attest: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------------
Secretary
(CORPORATE SEAL)
ISECOLDSUB, INC.
-----------------------------------------------------
(Corporate Name)
By: /s/ Xxxxx X. Xxxx
-------------------------------------------------
President
Attest: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------------
Secretary
STRATASOFT, INC.
-----------------------------------------------------
(Corporate Name)
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------------------
President
Attest: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------------------------
Secretary
LOAN AND SECURITY AGREEMENT
VALERENT, INC., INTERNETWORK EXPERTS, INC.,
I-SECTOR CORPORATION, ISECOLDSUB, INC.,
STRATASOFT, INC.
APPROVED AND ACCEPTED
TEXTRON FINANCIAL CORPORATION
(Secured Party)
BY: /s/ Xxxxxxx Xxxxx
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DATE: February 23, 2004
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