EXHIBIT 10.39
MASTER ACCOUNTS RECEIVABLE PURCHASE
AND
SECURITY AGREEMENT
This Master Accounts Receivable Purchase and Security Agreement (the
"Agreement"), effective July 3, 2003 (the "Effective Date") is entered into by
and between ONESOURCE TECHNOLOGIES, INC., a Delaware Corporation (hereinafter
"Client") and New Horizon Capital, LLC, an Arizona limited liability company
(hereinafter "NHC"). The parties agree as follows:
PURPOSE OF AGREEMENT
Client desires to obtain financing by selling and assigning to NHC
acceptable accounts receivable. The purpose of this financing is commercial in
nature, and not for household, family, or personal use.
AGREEMENT
1. Definitions: The capitalized terms used in this Agreement but not otherwise
defined shall be defined as follows:
1.1 "Account" means any and all accounts as defined in the Uniform
Commercial Code, and all rights to payment, proceeds or distributions
under any contract, of Client, presently existing or hereafter
created, and all proceeds thereof.
1.2 "Account Debtor" means any party responsible or obligated for payment
of any Account.
1.3 "Account Debtor Dispute" means any claim by an Account Debtor against
Client, of any kind whatsoever, that reduces or potentially reduces in
any way the amount collectible from an Account Debtor by NHC.
1.4 "Acceptable Account" means an Account which is evidenced by a current
invoice, any extensions or modifications thereof, and any other
supporting documentation requested by and submitted to NHC in a form
acceptable to NHC from time to time in its sole discretion.
1.5 "Advance" shall be the amount paid to Client by NHC for Acceptable
Accounts pursuant to the Advance Rate as set forth on Schedule A, or
such other amount as determined by NHC with respect to particular
Acceptable Accounts from time to time in its sole discretion.
1.6 "Advance Rate" shall mean the percentage of the face (gross) amount of
any Account purchased by NHC. The "Advance Rate" is set forth on
Schedule A.
1.7 "Base Certificate" shall mean the form of assignment document required
by NHC from time to time by which Client transfers Acceptable Accounts
to NHC.
1.8 "Charge-back" refers to the procedure whereby a Client purchases an
Account back from NHC pursuant to the recourse obligations of Client
under this Agreement or to any other provisions of this Agreement.
1.9 "Collateral" refers collectively to Client's rights in any of the
following, and to any other collateral or security for the obligations
of Client under this Agreement, existing now or hereafter created, and
all products or proceeds thereof, accessions to, replacements of,
insurance or condemnation proceeds of, and documents covering any of
the following:
a. All inventory as defined in the Uniform Commercial Code, wherever
located, of every nature used, consumed or to be used in Client's
business, all packaging and shipping materials, and all other
goods customarily or for accounting purposes classified as
inventory, of Client ("Inventory").
b. All Accounts (as defined in 1.1 above).
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c. Any and all general intangibles of Client, presently existing or
hereafter arising, including general intangibles as defined in
the Uniform Commercial Code and all patents, patents pending,
know-how, trademarks, trade names, trade secrets, customer lists
and any other intellectual property rights or any kind.
d. All balances, reserves, deposits, debts or any other amounts or
obligations of NHC owing to Client, including, without
limitation, any rebates, the Reserve, and any other amounts owing
pursuant to this Agreement.
e. All equipment and goods as defined in the Uniform Commercial
Code, including computer software, furniture and fixtures, all
motor vehicles, including all tires, accessories, spare and
repair parts, and tools, wherever located (collectively, the
"Equipment").
f. All cash on hand and in banks or financial institutions, cash
equivalents, and marketable securities. g. All business records.
1.10 "Credit Problem" means NHC has determined that an Account Debtor has
demonstrated that it is unable or unwilling to pay an Account or any
portion of an Account in accordance with the terms of this Agreement
or the terms of the Account.
1.11 "Event of Default" shall mean any default of Client under this
Agreement, including the events specified in Paragraph 25 below.
1.12 "Person" shall mean an individual, corporation, partnership, trust, or
any other legal entity.
1.13 "Rebate" shall mean the amount, if any, paid to Client out of the
Reserve with respect to an Acceptable Account pursuant to Paragraph 6
below.
1.14 "Reserve" shall mean the Reserve described in Paragraph 6, below.
1.15 "Schedule of Accounts" shall mean the form of assignment document
required by NHC from time to time by which Client transfers Acceptable
Accounts to NHC.
2. Warranties and Covenants By Client. As an inducement for NHC to enter into
this Agreement, and with full knowledge that the truth and accuracy of the
statements, representations and warranties in this Agreement are being relied
upon by NHC and are a material inducement to NHC entering into this Agreement,
Client represents, warrants and the covenants that:
2.1 Client is a Corporation formed under the laws of the State of
Delaware, Client is duly qualified to do business in each jurisdiction
where the conduct of its business requires such qualification. Client
has all necessary licenses and other certificates or permits required
for the conduct of its business and all such necessary licenses and
other certificates or permits are current and will be maintained at
all times. Client has and shall maintain the full power and authority
to conduct the business in which it engages and to enter into and
perform its obligations under this Agreement, and Client's trade
name(s) has been properly filed and published as required by
applicable law.
2.2 Client has made and shall continue to make timely payment on deposit
of any and all taxes required to be deducted and withheld by Client
from the wages of any employee of Client. Any known delinquencies have
been and any future delinquencies will be disclosed to NHC.
2.3 All financial records, statements, books or other documents of the
Client or any guarantor provided to NHC by Client or any guarantor at
anytime, either before or after the signing of this Agreement, are
prepared in accordance with GAAP with the exception of full
disclosures as required under GAAP, are true and accurate, and fairly
reflect the actual financial condition and operation of the Client or
guarantor as of the date thereof and the results of operations for the
period or periods covered thereby. Since the date of such financial
statements, there has been no material adverse change in the financial
condition of Client or any such guarantor. Client agrees to submit
financial statements of Client to NHC and Client shall cause any such
guarantor to submit financial statements of such guarantor to NHC as
may be requested by NHC, all such financial statements to be prepared
in a form and from a firm acceptable to NHC.
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2.4 The execution, delivery and performance by Client of this Agreement
have been duly authorized by all necessary action on the part of
Client, and are not inconsistent with any Articles of Incorporation,
By-Laws, Operating Agreement, Articles of Organization, Articles of
Partnership, Partnership Agreement, or other organizational document
of Client, do not and will not contravene any provision of, or
constitute a default under, any indenture, mortgage, contract or other
instrument to which Client is a party or by which it is bound, and
upon execution and delivery hereof, this Agreement will constitute a
legal, valid and binding agreement and obligation of Client,
enforceable in accordance with its terms.
2.5 Client shall conduct its business in a lawful manner and in compliance
with all applicable federal, state, and local laws, ordinances, rules,
regulations, and orders and shall pay when due all lawfully imposed
taxes upon its property, business and income.
2.6 To the best of Client's information and knowledge, each Account
Debtor's business owing an Acceptable Account operates profitably.
2.7 Client is, at the time of purchase of an Account by NHC, the lawful
owner of and has good, undisputed and marketable title free and clear
from encumbrance to such Accounts except for the lien of NHC
hereunder. To the best knowledge of Client, there are no defenses or
setoffs to payment of the Account which can be asserted by way of a
defense or counterclaim against Client or NHC.
2.8 Each Account offered for sale to NHC is an accurate and undisputed
statement of indebtedness by Account Debtor to Client for a certain
sum which is due and payable in terms as set forth on the face of the
invoice, or within such time as is agreed to in writing by NHC and
Client and constitutes an accurate statement of a bona fide sale,
delivery and acceptance of merchandise or performance of service by
Client to Account Debtor. Any services performed or goods sold which
give rise to the Account have been rendered or sold in compliance with
all applicable laws, ordinances, rules and regulations and were
performed in the ordinary course of Client's business.
2.9 Client does not own, control or exercise dominion over, or have any
ownership in or affiliation with, in any way whatsoever to any Account
Debtor connected with any Account sold to NHC.
2.10 To the best knowledge of Client, no proceeding has been commenced or
petition filed under any bankruptcy or insolvency law by or against
the Account Debtor; no receiver, trustee or custodian has been
appointed for any part of the property of the Account Debtor; and no
property of the Account Debtor has been assigned for the benefit of
creditors.
2.11 Client will not have Accounts funded or assign any Account except to
NHC for the period of this Agreement, and/or for as long as any
indebtedness whatsoever remains owing by Client to NHC.
2.12 Client has not transferred, pledged or granted a security interest in
Client's Accounts or any other Collateral to any other party which
Client has not fully disclosed in writing to NHC prior to the signing
of this Agreement, and Client will not transfer, pledge or grant a
security interest to any other party in the Accounts or the Collateral
other than the Equipment for the term of this Agreement and for as
long as Client is indebted to NHC hereunder.
2.13 Client will not change or modify the terms or conditions contained in
the invoice delivered to NHC unless NHC first consents to such change
in writing.
2.14 Client shall not consent to the placement of any lien, security
interest or encumbrance upon the Collateral, except with respect to
Equipment or otherwise upon prior written consent from NHC. Assuming
Client is not in default and no significant financial deterioration in
NHC's sole discretion has occurred since execution of this Agreement,
NHC will subordinate its interest in equipment. Client shall
immediately provide written notice to NHC, no less than 48 hours of
Client obtaining any knowledge, from any source, of the filing,
recording or perfection by any means, of any non-consensual lien,
claim or encumbrance against the aforementioned property of Client.
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2.15 Client will maintain such insurance covering Client's business and/or
the Collateral against theft, loss, and other risks as is customary
for Client's business and as requested by NHC from time to time, to
the full insurable value thereof and, at the request of NHC, name NHC
as co-insured and loss payee of such insurance. Proceeds from such
insurance shall be payable to NHC as its interest may appear and such
policies shall provide for a minimum thirty days written cancellation
notice to NHC. Client shall provide NHC a Certificate of Insurance
evidencing any such insurance coverage, and copies of any policies, as
obtained or modified from time to time.
2.16 The Client's place of business or, if Client has more than one place
of business, the location of its chief executive office is ▇▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and will not be moved therefrom
without at least thirty (30) days prior written notice to NHC. Client
will notify NHC with at least thirty (30) days prior written notice if
Client has or intends to acquire any additional place(s) of business
and prior to any change in any of Client's principals, officers, or
owners.
2.17 All records of Client pertaining to Accounts sold to NHC shall be kept
and stored at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and will not be
moved therefrom without at least thirty (30) days prior written notice
to NHC.
2.18 Client will promptly notify NHC in writing of any proposed change of
Client's name, identity, legal entity, legal structure, use of
additional trade name(s), or ownership change involving more than 10%
of the current ownership of the business. Client will not cause any of
the foregoing changes to occur without NHC's prior written consent.
2.19 During the term of the Agreement, Client will make no loans to or
repay principal or interest on any loans made to it either prior to or
subsequent to the signing of this Agreement by any of its officers,
directors, stockholders, affiliates or their family members nor
repurchase any assets or ownership interests of the Client or any
affiliated entities except as mutually agreed to by Client and NHC.
2.20 Client will at all times keep accurate and complete records relating
to its Accounts. NHC and its representatives shall have the right at
any reasonable time to enter any premises where any such records or
any other items of Collateral are located to inspect, audit, check,
copy and make extracts from any records or other data relating to said
Accounts or any other item of Collateral or to any other transactions
between NHC and Client. Reasonable out of pocket expenses to conduct
such audits or inspections will be the responsibility of the Client.
2.21 This Agreement, the financial statements referred to herein, and all
other statements furnished by Client to NHC in connection herewith
contain no untrue statement of a material fact and omit no material
fact, other than disclosures required under GAAP, necessary to make
the statements contained therein or herein not misleading. Client
represents and warrants that it has not failed to disclose in writing
to NHC any fact that materially and adversely affects, or is
reasonably likely to materially and adversely affect, Client's
business, operations, properties, prospects, profits, condition
(financial or otherwise), or ability to perform this Agreement.
2.22 Client agrees to execute any documents and to perform such other acts
reasonably requested by NHC and gives NHC Power of Attorney to perfect
or enforce the rights and interests of NHC.
2.23 Client has no tax claims which have not been resolved with federal,
state or local tax authorities, nor are there any existing tax liens
against either the Client or Its principle property, other than as
disclosed in writing to NHC prior to the date of this agreement. In
the event that any tax claim or lien of any nature or any taxing
authority is made against the Client or Its property, the Client will
immediately notify NHC in writing of said claim or lien. By the end of
each calendar month, Client will furnish NHC proof reasonably
satisfactory to NHC of payment and/or compliance with all federal,
state and/or local tax requirements of the prior month. Client will
promptly (but in no event later than 5 business after Client is made
aware of same) notify NHC of any attachment, tax assessment or other
legal process against Client or any of Client's Account Debtors.
3. Funding of Accounts. NHC may purchase from Client, in NHC's sole discretion,
such Acceptable Accounts as Client may submit to NHC, subject to the terms and
conditions of this Agreement.
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4. Assignment. Client hereby assigns all of its Accounts to NHC. Client shall
further from time to time sell, transfer and assign Acceptable Accounts to NHC
and said Acceptable Accounts shall be identified by separate and subsequent
written assignments on a form to be provided to Client by NHC known either as a
"Base Certificate" or a "Schedule of Accounts" in the form attached hereto as
Exhibit A.
5. Purchase Terms. The maximum advance for each Acceptable Account purchased
shall be the gross amount of each Acceptable Account multiplied by the Advance
Rate described on Schedule A, attached hereto and made a part hereof
6. Reserve. Unless otherwise agreed to by NHC, as payments are received on an
Account, NHC will reserve and withhold an amount equal to the gross amount
received from the Account Debtor for that Account minus the amount of the
Advance for that Account (the "Reserve"). Said Reserve will be held by NHC and
applied by NHC against all charge-backs, fees and interest as set forth on
Schedule A, or any obligations of Client to NHC (including legal fees and other
collection and administrative charges, wire transfer fees, UPS and other mail
and freight charges, and any other advances or expenses required before an
Account can be collected) known or anticipated, and said Reserve account is not
due and payable to Client until any and all such obligations are fully paid
and/or satisfied. In addition to the foregoing fees, NHC may charge Client fees
and interest as set forth on Schedule A and the minimum amounts to be charged,
if any, with respect to any of the foregoing fees is also set forth on Schedule
A. Once an Acceptable Account is paid in full, NHC may pay a portion of the
Reserve to Client from time to time (a "Rebate"). Rebates, if any, from the
Reserve account will typically be paid on a weekly basis, or at such other times
and amounts determined by NHC in its sole discretion from time to time. Client
agrees to immediately pay NHC any amounts otherwise deductible against the
Reserve in the event funds are insufficient in the Reserve to make such
payments. Client grants to NHC a first priority security interest in this
Reserve account as part of the Collateral pledged herein.
7. Other Purchase Terms. NHC reserves the right to modify the qualifications of
an Acceptable Account and to modify and establish Advance Rates on specific
Accounts, and/or on all Acceptable Accounts purchased pursuant to this Agreement
from time to time, as market conditions, rates, and credit risks warrant.
8. Required Forms. From time to time, Client agrees to submit a Base Certificate
or Schedule of Accounts to NHC, in format provided by NHC, requesting funding of
an Acceptable Account(s). The request shall be accompanied by an exact copy of
the original invoice(s) sent to the debtor and will include the purchase order
number or other debtor order reference as required by debtor, payment terms,
product or service sold, invoice date, a ▇▇▇▇ of lading or other proof of
delivery or completion of services, a contract or purchase order, all in form
satisfactory to NHC in its sole discretion. Client will provide other order and
billing backup at the request of NHC from time-to-time. Client authorizes NHC in
its sole discretion to dispose of any documents, Schedules, Base Certificates,
invoices or other papers delivered to NHC in connection with this Agreement at
any time after the Account has been paid in full.
9. Notification. NHC shall notify all Account Debtors of Client to make payments
directly to NHC on the notice form attached hereto as Exhibit B. In the event of
default by Client, NHC, at its sole discretion, may notify all Account Debtors
of Client to make payments directly to NHC on the notice form attached hereto as
Exhibit C.
10. Security Interest/Collateral. As a further inducement for NHC to enter into
this Agreement, Client gives and grants to NHC, as collateral for the repayment
of any and all obligations and liabilities whatsoever of Client to NHC, a first
priority security interest in the Collateral as defined in Paragraph 1.9 above.
As further Collateral for the obligations of Client to NHC, this Agreement is
secured by a Deed of Trust to____N/A__________________ as Trustee, on that
certain real property known
as_________N/A______________________________________________________. (Describe
Deed of Trust Documents, if any.)
11. Recourse and Charge-Back. NHC will have recourse against Client when an
Account is not paid when due by Account Debtor and for any other default,
including but not limited to, the situations enumerated below:
11.1 If the Client has breached any material statement, representations,
warranty or promise in this Agreement with regard to the unpaid
Account.
11.2 If Client has contributed to, or aggravated Account Debtor's Credit
Problem or Account Debtor's ability to pay.
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11.3 If Client and Account Debtor are involved in a dispute of any kind,
regardless of validity and Client does not settle the dispute with
Account Debtor within 30 days.
11.4 If Account Debtor asserts a claim of loss or offset of any kind
against Client or NHC.
11.5 All invoices purchased by NHC which, unless otherwise agreed to in
writing by NHC, remain uncollected after ninety (90) days of the
invoice date, shall be repurchased by Client. The repurchase price
shall be the total gross amount of invoice(s). Should Client fail to
repurchase each uncollected invoice on the 91st day, NHC will charge
an additional fee of two percent (2%) of the amount of such
uncollected invoices for each thirty day period such Account(s) remain
uncollected in addition to the fees established in Schedule A and, NHC
may apply any and all amounts due Client held by NHC, including
Reserves, to such fees and charge-backs or NHC may seek recovery
through any other remedies legally available to it.
11.6 Mistaken, incorrect and/or erroneous invoicing submitted by Client to
NHC may, at NHC's sole discretion, be deemed a disputed invoice and be
charged back to Client.
11.7 In the event an Account Debtor suspends business, requests a general
extension of time within which to pay its debts or makes an assignment
for the benefit of creditors, or if a petition in bankruptcy for
liquidation or reorganization under the Bankruptcy Code (as defined
below), or a similar petition under state law is filed by or with
respect to Account Debtor, a creditor's committee is appointed with
respect to an Account, or if any event occurs amounting to a general
business failure of Account Debtor.
In addition to NHC's right to deduct charged-back Accounts from the Reserve and
any other rights NHC may have, Client agrees to pay the amount of any
charged-back Account immediately upon demand of NHC.
12. Statement of Charge-Back. NHC shall identify in writing all charge-backs and
provide to Client written statement thereof. Said statement shall be deemed
valid and correct except for any errors of which Client shall have notified NHC
in writing within ten (10) days after the date of receipt by Client of such
charge-back statement.
13. Notice and Settlement of Dispute. Client will immediately notify NHC of any
disputes between Account Debtor and Client. Upon an Event of Default, NHC may
settle any dispute with an Account Debtor. Such settlement does not relieve
Client of the final responsibility for such Account(s).
14. Payments are Property of NHC. Unless otherwise agreed to in writing by NHC,
all payments on Accounts of Client, whether or not purchased by NHC, shall be
collected by and paid through NHC. Any payments received by Client on any
Accounts shall be the sole property of NHC and Client agrees to immediately
remit to NHC any payment instrument received from an Account Debtor. Client will
hold in trust and safekeeping, as the property of NHC, and will immediately
deliver to NHC the identical check or other form of payment received by Client,
whenever any payment on any Account of Client comes into Client's possession.
Should Client come into possession of a check comprising payments owing to both
Client and NHC, Client shall deliver immediately said check to NHC. NHC will
refund Client's portion to Client in the normal course of business. The receipt
of any check or other items of payment from Account Debtors or Client shall not
be considered a payment on account until the funds from such check or other item
of payment have cleared, generally two business days, and are received in NHC's
bank account. Should Client intercept any payment on any Account and deposit
checks into Client's bank account, any and all collection and/or legal fees
associated with the collection of the same will be charged back to Client in
addition to any other remedies NHC may have.
15. True Sale; Consent to Relief from Automatic Stay
15.1 Client and NHC expressly acknowledge and agree that it is the intent
of each of them that each purchase of Accounts by NHC under the terms
of this Agreement shall constitute a true sale of such Accounts and
not merely a secured financing.
15.2 Client agrees that if it shall (i) file with a United States
Bankruptcy Court of competent jurisdiction or be the subject of any
petition under the Bankruptcy Code, (ii) be the subject of any order
for relief issued under the Bankruptcy Code, (iii) file or be the
subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future federal or state act or law relating to
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bankruptcy, insolvency, assignment for benefit of creditors, or other
relief, (iv) seek, consent to, or acquiesce in the appointment of any
trustee, receiver, conservator or liquidator, or (v) be the subject of
any order, judgment, or decree entered by any court of competent
jurisdiction approving a petition filed by or against Client for any
realization, arrangement, composition, readjustment, liquidation,
dissolution, assignment for benefit of creditors or similar relief
under any present or future federal or state act or law relating to
bankruptcy, insolvency, or relief for Client, NHC shall thereupon be
entitled to immediate relief from any automatic stay imposed by the
Bankruptcy Code, or from any other stay or suspension of remedies
imposed in any other manner with respect to the exercise of the rights
and remedies otherwise available to NHC under this Agreement, any
related agreement or under applicable law relating to the Accounts
purchased by NHC from Client. Client hereby acknowledges and
stipulates that relief from the automatic stay (or any such other
provision of law having a similar effect) with respect to Accounts
purchased by NHC is in the Client's best interest in that continued
collection of said Accounts by NHC shall operate to reduce the
Client's indebtedness and obligations to NHC. Client further
stipulates, acknowledges, and reaffirms that said Accounts do not
constitute property of a "debtor's estate" as that term is defined
under the Bankruptcy Code (and do not constitute property of Client
for purposes of any other federal or state law relating to bankruptcy,
insolvency, assignment for the benefit of, or relief from, creditors)
and that (subject to terms and provisions of this Agreement and any
related agreements Client has no right, title, or interest in said
Accounts. Client further stipulates, acknowledges and agrees that
should NHC request the relief specified herein, Client shall not
object to or oppose NHC from having immediate relief, subject to court
approval (if necessary), from the automatic stay under Section 362 of
the Bankruptcy Code (or any such other provision of law having a
similar effect) or such other relief as set forth below, such relief
being limited to modification of the stay (or such other relief as set
forth below), (i) to permit NHC to collect all Accounts purchased by
NHC from Client and apply the proceeds to the obligations, and (ii) to
obtain Client's cooperation and assistance in collection and recovery
of all amounts due on Accounts purchased by NHC from Client.
16. Maximum Permitted Earnings. To the extent that any interest, fees and
charges (collectively "Earnings") payable hereunder and/or under any related
agreement may be deemed to exceed (whether individually or in the aggregate) any
maximum amount permitted by applicable law, the amount of all the Earnings shall
be deemed at all times to have been equal to the maximum permitted amount, and
any amount collected by NHC in excess of the maximum permitted amount shall be
credited to payment of any other indebtedness or obligations owed by Client to
NHC. In determining whether or not the Earnings paid or payable under any
specific contingency exceed the maximum permitted amount, NHC and Client shall,
to the maximum extent permitted under applicable law, (i) characterize any
non-principal payment (other than payments which are expressly designated as
interest payments hereunder) as an expense, fee or premium, rather than as
interest, (ii) exclude voluntary prepayments and the effect thereof, and (iii)
spread the total amount of payments characterized as "interest" throughout the
entire contemplated term of this Agreement so that the "interest" rate is
uniform throughout such term. It is the express intent of the parties hereto
that Client shall not pay, and NHC shall not receive, directly or indirectly,
Earnings in excess of what may be lawfully paid by Client or received by NHC
under applicable law.
17. Financial Records. In addition to the financial information delivered in
accordance with this Agreement, Client will furnish NHC with additional
financial statements and such other information as may be reasonably requested
by NHC from time to time. The person or persons or accounting firm preparing
such financial records, must be acceptable to NHC.
18. Settlement of Taxes and Levy. If Client does not commence negotiations
within 30 days, NHC has the right, but not the obligation, to settle any tax
matter or levy by paying the tax and levy out of any funds due Client under this
Agreement, including, but not limited to, advances and reserves, in order to
protect NHC's interests. Client hereby agrees to and hereby does appoint NHC as
it's Attorney in Fact in negotiating with any governmental or taxing authority
to settle and negotiate any tax claim. Client agrees to immediately sign any and
all documents, Power of Attorney or other forms NHC may require to comply with
the spirit of this clause. Any settlement NHC agrees to as Client's agent, is
binding on Client and Client indemnifies NHC from any and all liability for
NHC's actions as agent of Client. NHC may at its own discretion hire an outside
party to settle the tax matter or levy (which party may or may not be relative
to NHC) who may charge a fee for services. Said fee will be paid by Client, and
can be paid by NHC, on Client's behalf, out of funds due Client or held in trust
for Client.
19. No Pledge. Client will not pledge or in any way offer the credit of NHC to
any person or business for any purpose whatsoever.
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20. Book Entry. Client will, immediately upon sale of any Accounts to NHC, make
proper entries on its books and records disclosing the absolute sale of said
Accounts to NHC.
21. Legal and Collection Fees. Except as is prohibited by law, Client shall pay
to NHC all costs and expenses including, without limitation, attorney's fees and
costs incurred by NHC in the prosecution or enforcement of any of NHC's rights,
claims or causes of action which arise out of, relate to or pertain to this
Agreement, including costs and fees incurred in collecting against any Account
Debtor, and repay to NHC all monies expended in enforcement of this Agreement by
NHC under the provisions hereof.
22. Power of Attorney. In order to carry out this Agreement and avoid
unnecessary notification of Account Debtors, Client irrevocably appoints NHC or
any person designated by NHC, its special attorney in fact, or agent, with power
to:
22.1 Strike out Client's address with respect to all Accounts mailed to
Account Debtors and put NHC's address on all Accounts.
22.2 Receive, open, and forward all mail addressed to Client, or to
Client's fictitious trade name.
22.3 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 NHC.
22.4 Demand, ▇▇▇ for, collect, and give releases for any and all monies due
or to become due on any of Client's Accounts.
22.5 Compromise, prosecute, or defend any action, claim or proceeding as to
any Accounts.
22.6 Execute and file any financing statements or changes and amendments
thereto, as applicable, on behalf of Client evidencing and perfecting
the security interest granted by Client to NHC and renewing the
security interest granted herein.
22.7 Upon an occurrence of default, offer a trade discount to Client's
Account Debtors exclusive of Client's normal business custom with said
Account Debtor.
22.8 Upon the occurrence of an Event of Default, execute any document in
Client's name, and file any document or take any other action NHC
deems appropriate to carry out its right under this Agreement.
The authority granted NHC herein shall remain in full force and effect until all
assigned Accounts are paid in full and any and all indebtedness of Client to NHC
is discharged.
23. Double Payments. Should NHC receive a double payment on an Account or other
payment which is not identified, NHC shall carry these sums as open items and
shall return them to said payer upon proper identification by payer. A written
notice provided by Client requesting return of said payment shall suffice.
24. Maximum Accounts Receivable. The gross amount of Client's accounts
receivable purchased by NHC and not yet paid by Account Debtor's shall not
exceed the amount of the Maximum Accounts Receivable Line of Credit on Schedule
A, as amended by NHC in its sole discretion.
25. Event of Default. Any one or more of the following shall be a default or
Event of Default hereunder:
25.1 Client or any guarantor fails to pay any indebtedness to NHC when due.
25.2 Client or any guarantor breaches any term, condition, provision,
covenant, warranty or representation under this Agreement, or under
any other agreements or contracts with NHC.
25.3 The appointment of any receiver or trustee of any portion of the
assets of Client or guarantor.
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25.4 Client becomes insolvent and unable to pay debts as they mature, makes
a general assignment for the benefit of creditors, or voluntarily
files under any bankruptcy or similar law or should any involuntary
petition in bankruptcy be filed against Client.
25.5 Any levies of attachment, executions, tax assessments, tax liens, or
similar process are issued against the Collateral and not released
within ten days thereof.
25.6 Any financial statements, profit and loss statements, certificates, or
schedules, or other statements furnished by Client or any guarantor to
NHC prove false, incorrect or misleading in any material respect.
25.7 Client does not promptly remit in kind to NHC any check or other full
or partial payment of any Accounts assigned to NHC pursuant to this
Agreement.
25.8 Client is in default in any way whatsoever under any other agreement
or contract or obligation for borrowed money or financial performance.
25.9 Client fails to submit any compliance information required by NHC
under this Agreement on a timely basis.
25.10 Any item of Collateral is damaged, destroyed, or becomes missing.
25.11 The guarantee of any guarantor is limited or withdrawn for any reason
whatsoever.
25.12 The Client ceases to conduct its normal business operations at any
time as determined by NHC in its sole discretion.
26. Remedies After Default. In the event of any default, NHC may do any one or
more of the following, which may be cumulative and are in addition to any other
remedy NHC may otherwise have:
26.1 Declare any indebtedness of Client due NHC, including any amount
advanced to purchase Client Accounts, immediately due and payable.
26.2 Notify any Account Debtors of Client of default and collect any
Accounts without judicial process.
26.3. Require Client to assemble all Collateral, including the records
pertaining to all Client Accounts and make it available to NHC at a
place designated by NHC.
26.4. Enter the premises of Client and take possession of all Collateral,
including the records pertaining to all Accounts.
26.5 Grant extensions, compromise claims, and settle Accounts for less than
face value, all without prior notice to Client. Any settlement,
compromise, or extension does not relieve Client from final
responsibility of payment of all obligations due under this Agreement.
26.6 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.
26.7. Return any surplus realized to Client after deducting all costs,
expenses and attorneys' fees incurred by NHC in resolving said
default.
26.8 Hold Client liable for any deficiency.
26.9 Until the Event of Default is cured, NHC shall charge a monthly fee,
in addition to the interest and fees due by Client on Schedule A,
attached hereto and made a part hereof, in an amount up to 2% of the
amount of the Maximum Accounts Receivable line of credit on Schedule
A.
26.10 Notify Account Debtors using the form of notice set forth on Exhibit
C.
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26.11 Charge for reasonable out of pocket expenses incurred on your behalf
including, but not limited to, fax charges, delivery charges, long
distance telephone charges, audit fees and expenses, credit reports,
agency reports, verifications, filings and searches.
27. Term. The term of this Agreement shall be as stated in Schedule A unless
sooner terminated under Paragraph 28 below. The initial term and any successor
terms of this Agreement shall automatically renew in increments as stated on
Schedule A unless either party notifies the other of its intention to not renew
this Agreement in writing at least thirty (30) days prior to the expiration date
of the then-current term of the Agreement. The initial term and any successor
terms shall collectively be referred to as the "Term" of the Agreement.
28. Termination. This Agreement may be terminated at any time with or without
cause by either party to the Agreement upon advance written notice to the other
party. In the event Client terminates Agreement prior to the Term of Agreement,
Client shall provide thirty (30) days advance written notice and Client agrees
to pay a fee equal to 2% of the Maximum Accounts Receivable Line of Credit on
Schedule A, as amended, for each month, or portion thereof, prior to expiration
of the remainder Term of this Agreement, however, no termination fees shall
apply if traditional commercial bank financing or equity capital is obtained.
Upon termination, Client shall be liable to NHC for the full and prompt payment
of the full amount of any purchased Accounts which are then outstanding and
unpaid, disputed or undisputed, as well as any other indebtedness owed to NHC
whatsoever. NHC shall retain a security interest in the Collateral after
termination of this Agreement until any and all indebtedness of Client to NHC is
paid in full. Once NHC has been paid in full, Client and NHC mutually agree that
NHC shall release any security held for the performance by Client of its
obligations hereunder and shall re-assign to Client any Account which was sold
to NHC but not paid in full while owned by NHC.
29. Binding on Future Parties. This Agreement inures to the benefit of and is
binding upon the heirs, executors, administrators, successors and permitted
assigns of the parties hereto.
30. Guarantees. NHC shall require such Guarantee or Guarantees from Client's
principals, parent or affiliated companies or others as determined by NHC as a
condition precedent to its execution of this Agreement. All such guaranties
shall be in the form attached as Exhibit D. The personal or business financial
statements supplied to NHC in connection with such Guarantees are a material
inducement to NHC's decision to enter into this Agreement. In the sole
discretion of NHC, validity guarantees may be required from principals of widely
held or publicly held corporations.
31. Cumulative Rights. All rights, remedies and powers granted to NHC in this
Agreement, or in any note or other agreement given by Client to NHC, are
cumulative and may be exercised singularly or concurrently with such other
rights that NHC may have. These rights may be exercised from time to time as to
all or any part of the pledged Collateral as NHC in its discretion may
determine.
32. Written Waiver. NHC may not waive its rights and remedies unless the waiver
is in writing and signed by NHC. A waiver by NHC of a right or remedy under this
Agreement on one occasion is not a waiver of the right or remedy on any
subsequent occasion.
33. Governing Law & Venue. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Arizona without reference
to choice of law principles. The sole and only proper venue for any action under
this Agreement shall be Maricopa County, Arizona and each of the parties
consents to exclusive jurisdiction and venue for such purposes.
34. Invalid Provisions. If any provision of this Agreement shall be declared
illegal, invalid or contrary to law, it is agreed that such provision shall be
disregarded and this Agreement shall continue in full force and effect as though
such provision had not been incorporated herein.
35. Entire Agreement. This Agreement, together with all exhibits, Schedules and
attachments hereto contains the entire agreement between the parties. Any
addendum or modification hereto will be signed by both parties and attached
hereto.
36. Indemnification. Client agrees to pay, protect, indemnify and hold harmless
NHC and its affiliated entities, and each of their respective officers,
directors, shareholders, members, partners, employees and agents (an
"Indemnified Party") for, from and against any and all liability, loss, claim,
demand, penalty, judgment, award, order, and damage, including attorney fees,
legal expenses, costs of suit, other expenses and interest which an Indemnified
Party may incur as a result of an Indemnified Party defending such claims
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arising from or relating in any manner to the purchase of Accounts, this
Agreement, the failure of Client to pay withholding taxes due and payable to any
taxing authority and as a result of the operation of any of the terms,
conditions and covenants of this Agreement, or the results therefrom. NHC shall
have sole and complete control of the defense of any such claims and is hereby
given authority to settle or otherwise compromise any such claims as NHC, in
good faith, determines shall be in its best interest. Client shall pay, protect,
indemnify, defend and hold an Indemnified Party harmless for, from and against
any and all liabilities, losses, claims, demands, penalties, judgments, awards,
orders and damages of any kind whatsoever arising out NHC's collecting or
attempting to collect any Accounts except where NHC suffers damages, costs or
other actions as a result of its own gross negligence.
37. No Third Party Beneficiary. Except as provided in Paragraph 36 above, this
Agreement is made for the sole and exclusive benefit of NHC and Client and is
not intended to benefit any third party. No such third party may claim any right
or benefit or seek to enforce any term or provision of this Agreement.
38. Notices. All notices hereunder shall be in writing and may be mailed,
postage prepaid, addressed as follows:
To NHC: To Client:
New Horizon Capital, LLC ONESOURCE TECHNOLOGIES, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇. ▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any notice so mailed shall be deemed given three (3) days after mailing.
Any notice otherwise delivered shall be deemed given when received by the
addressee.
39. Survival of Representations, Warranties and Covenants. All agreements,
representations, warranties and covenants made herein by Client shall survive
the execution and delivery of this Agreement and any bankruptcy proceedings
involving Client and shall continue in effect so long as any obligation to NHC
contemplated by this Agreement is outstanding and unpaid, notwithstanding any
termination of this Agreement.
40. Assignability. This Agreement is not assignable or transferable by Client
and any such purported assignment or transfer is void and shall constitute a
material breach of this Agreement. This Agreement shall be binding upon the
heirs and/or successors of Client. Client acknowledges and agrees that NHC may
assign all or any portion of this Agreement, including, without limitation,
assignment of the rights, benefits and remedies of NHC hereunder without any
assignment of the duties, obligations or liabilities of NHC hereunder. For
purposes of this provision an assignment shall be deemed to include any sale or
transfer of equity of Client or any merger, consolidation or other corporate
reorganization.
41. Additional Documents. Client hereby agrees to execute any and all additional
documents as NHC may reasonably request to evidence or enforce its rights under
the terms of this Agreement.
AGREED AND ACCEPTED:
NEW HORIZON CAPITAL, LLC ONESOURCE TECHNOLOGIES, INC.
By: ___________________________ By: ______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Co-Managing Member Title: CEO
Date: __________________________ Date: _____________________________
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Schedule A
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To Master Accounts Receivable Purchase and Security Agreement
-------------------------------------------------------------
Dated July 3, 2003 with ONESOURCE TECHNOLOGIES, INC.
----------------------------------------------------
Maximum Accounts Receivable Line of Credit: Three Hundred Fifty Thousand Dollars
($350,000.00) of gross face value of Acceptable Accounts.
Advance Rate: Up to 80 % of the gross face amount of any Acceptable Account
purchased so long as no violation or default has occurred with respect to any
terms, conditions or covenants contained in the Agreement. Individual Account
Debtor advances may vary.
Recourse: Accounts which remain uncollected after 90 days from invoice date and
as otherwise specified in Section 12 of the Agreement.
Term: The minimum term of the relationship shall be 6 months from the Effective
Date of the Agreement. The relationship shall automatically renew in increments
of 6 months unless otherwise terminated by the parties in accordance with the
Agreement.
Origination/Renewal Fee: The origination/renewal fee shall be One Percent (1 %)
of the Maximum Accounts Receivable Line of Credit. The origination fee shall be
deducted from the initial funding. Renewal fees are charged at the time of
renewal of each term and will be deducted from available Reserve.
Fees: The following fees and expenses shall be due and payable on all Acceptable
Accounts funded by NHC:
1. Collateral Monitoring Fee: One percent (1 %) of gross Accounts purchased
by NHC for each (30) days or portion thereof that Accounts remain unpaid.
2. Interest on Advances: Prime Rate (as published in the Wall Street
Journal) plus Three percent (3%) on all outstanding advances made by NHC to
purchase Accounts of Client. Rate adjusted monthly on the first business day of
each month according to published changes in the Prime Lending Rate.
The combined minimum Collateral Monitoring Fee and Interest on Advances
earned and payable by Client for each month (or portion thereof) shall be
$741.50 (based on prime rate of 4.25%, which may vary depending on published
prime rate changes and minimum monthly usage of $50,000.00). All fees and
operational expenses are payable from the Client's Reserve Account, proceeds of
Accounts Receivable or in cash by Client unless otherwise determined by NHC.
Notification: All Account Debtors will be notified that Accounts have been
assigned to NHC using a notice substantially similar to the Notice on Exhibit B.
Each Invoice will bear a notation that it has been assigned to NHC.
Verification: NHC will verify invoices to determine, in part, whether or not the
invoices qualify as Acceptable Accounts. In addition to the requested
information in Paragraph 8 of the Agreement, NHC may, in its sole discretion,
contact Account Debtors to verify the accuracy of invoices.
AGREED AND ACCEPTED:
NEW HORIZON CAPITAL, LLC ONESOURCE TECHNOLOGIES, INC.
By: __________________________ By: ____________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Co-Managing Member Title: CEO
Date: __________________________ Date____________________________
Exhibit A
---------
Schedule of Accounts
Schedule No. _______
This is to certify that the parties named below are indebted to the undersigned
in the sums set opposite their respective names for merchandise sold and
delivered or for work and labor done and accepted.
---------------------------- ------------ ------------------ ----------------------- ------------------------
DEBTOR NAME INV. NO. INV. DATE PO # INVOICE AMOUNT
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
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---------------------------- ------------ ------------------ ----------------------- ------------------------
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---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
---------------------------- ------------ ------------------ ----------------------- ------------------------
For valuable consideration, receipt of which is hereby TOTAL:
acknowledged, the undersigned hereby sells, assigns, sets ----------------------- ------------------------
over and transfers to New Horizon Capital, LLC its CASH PAYMENT
successors or assigns, all its right, title and interest ----------------------- ------------------------
in and to the accounts above named, including all monies CHECK #
due to or to become due thereon, all in accordance with ----------------------- ------------------------
and pursuant to that certain Master Accounts Receivable WIRE INFO
Purchase and Security Agreement now existing by and ----------------------- ------------------------
between the undersigned and New Horizon Capital LLC, the
conditions, representations, warranties and agreements of
which are made part of this sale and assignment and
incorporated herein by reference.
Date Seller By
---------------- ------------------ -----------------------
EXHIBIT B
---------
NEW HORIZON CAPITAL, LLC
Dear ______________:
In order to better facilitate our rapid growth and expansion, we have obtained a
working capital credit facility secured by an assignment of accounts receivable
through New Horizon Capital, LLC ("NHC"), an Arizona based commercial finance
company.
Additionally, we have implemented improved procedures to facilitate payment
processing. Effective immediately, please remit payment for all current and
future invoices to us at the lock box address below:
ONESOURCE TECHNOLOGIES, INC.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Any changes in the remittance address must be made in writing by NHC.
Please contact our office directly if you have any questions pertaining to
orders or shipments. We appreciate your patronage and thank you for your
cooperation in this regard.
Sincerely,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO
Please acknowledge receipt of this notice by completing and faxing it to
▇▇▇-▇▇▇-▇▇▇▇.
Agreed and acknowledged by:
-------------------------------
Company Name
-------------------------------
Signature Date
-------------------------------
Print Name Title
EXHIBIT C
---------
NEW HORIZON CAPITAL, LLC
TO: _____________________________
RE: Assignment of invoice(s) to New Horizon Capital, LLC. ("NHC")
Gentlemen:
ONESOURCE TECHNOLOGIES, INC., has sold and granted to New Horizon Capital, LLC
("NHC"), a security interest in certain of our accounts receivable. You may have
been previously notified of this relationship.
As of this date, payment for the invoice(s) listed on the attached as well as
all other invoices, will be made to New Horizon Capital, LLC at ▇.▇. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. These instructions shall remain in effect until such
time as you are notified in writing by NHC to the contrary.
Please acknowledge your receipt of the following invoice(s), verification of the
information on the attached list, and that the amounts payable on the attached
list are fully earned, due and payable and will be paid in full without any
offset, counter claim or deduction whatsoever.
Thank you for your cooperation and assistance in this matter.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO
FACSIMILE OR ORIGINAL-ALL PARTIES AGREE THAT A FACSIMILE OR OTHER COPY OF THIS
DOCUMENT AND THE SIGNATURES HEREIN MAY BE USED FOR ANY PURPOSE IN LIEU OF THE
ORIGINAL DOCUMENT.
Agreed, Acknowledged and Accepted by:
-------------------------------------------------------
Print Business Name
-------------------------------------------------------
Signature Date
------------------------------------------------------
Print Name Print Title
EXHIBIT D
---------
OFFICERS' VALIDITY CERTIFICATE
This Officers' Validity Certificate ("Certificate") dated as of the 3rd day
of July, 2003, is provided by each of the undersigned officers (each an
"Officer" and collectively, the "Officers") of ONESOURCE TECHNOLOGIES, INC., a
Delaware Corporation ("ONESOURCE"), to and for the benefit of New Horizon
Capital, LLC., an Arizona Limited Liability Company ("NHC").
WHEREAS: ONESOURCE has previously entered into that certain Master Accounts
Receivable Purchase and Security Agreement with NHC dated as of the 3rd day of
July, 2003 (the "Agreement"); and
WHEREAS, in order for NHC to enter into the Agreement, the Officers of
ONESOURCE are required to provide this Certificate to separately guaranty the
validity of each and every invoice provided to NHC as collateral with respect to
the Agreement; and
WHEREAS, the Officers desire to obtain NHC financing under the terms and
conditions contained in the Agreement;
NOW THEREFORE: For good and valuable consideration, the receipt of which is
hereby acknowledged, the undersigned hereby represent, warrant and guaranty as
follows:
1. Representation, Warranty and Guaranty of Officers. With respect to
each invoice submitted to NHC for funding and granted as security
under, and in connection with, the Agreement (each an "Invoice" and
collectively, the "Invoices"), the Officers warrant, represent and
guaranty that:
a. Each Invoice represents the valid, actual, existing, and bona
fide indebtedness of a customer named in such account, payable to
ONESOURCE at the time of and in the manner set forth in the
Invoice represented by such account, and constitutes an
"Acceptable Account" (as defined in the Agreement).
b. Each Invoice represents a bona fide sale of the kind, quality,
and quantity of the goods or services described therein. The
goods or services described in each Invoice have been actually
delivered or have been completely performed and accepted by
ONESOURCE's customers.
c. There are currently, to the best of our knowledge, no disputes,
offsets, counterclaims, deductions, conditions, or discounts of
any kind against the amounts shown due on each invoice, and none
of the goods described on such invoices has been sold on
consignment or with any return privilege whatsoever except as
expressly described in such Invoice or as otherwise disclosed to
NHC.
d. The Officers have determined that ONESOURCE has properly applied
all payments from customers in connection with all Invoices under
the best practices of Cambric.
e. None of the Invoices assigned under and pursuant to the Agreement
have been assigned or sold to any other person or corporation,
and ONESOURCE will not assign, pledge, or otherwise hypothecate
any Invoices covered by the Agreement during the term thereof
without the prior, express, and written consent of NHC as
required under the Agreement.
f. The Officers have performed, satisfied and complied in all
material respects with all covenants, agreements, obligations and
conditions contained in, and required by the Agreement.
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2. Agreement to Indemnify. Each of the undersigned Officers shall
indemnify NHC in accordance with this Certificate against any
liability and/or expenses (each as defined below) incurred by NHC for
a breach of the representations, warranties and guaranties contained
in Section 1 of this Certificate, provided, however, such liability
and expenses are incurred due to the fraud, intentional
misrepresentation, conversion, or misappropriation of payments from
account debtors of an Officer or Officers, or any employee under the
direct supervision of the Officers with responsibility for Invoices
(hereafter, an "Indemnification Event").
a. Expenses. The term "expenses" means reasonable expenses
including, but not limited to, expenses of investigation and
preparation and fees and disbursements of NHC's counsel,
accountants and other experts.
b. Liability. The term "liability" means the obligation incurred
with respect to any Invoices factored pursuant to the Agreement
that are not now or in the future in compliance with this
Certificate.
3. Advances of Expenses. In the event of any proceeding which may give
NHC a claimed right of indemnification from the Officers of ONESOURCE
pursuant to this Certificate, following written request to the
Officers by NHC, the Officers shall pay to NHC an amount reasonably
required to cover reasonable expenses incurred by NHC in a proceeding
in advance of its final disposition upon (a) receipt by the Officers
of (i) a written affirmation by NHC of NHC's attesting to its good
faith belief that NHC reasonably believes that an Indemnification
Event has occurred, and a description of the claims for amounts
believed to be owed, and (ii) a written undertaking executed by or on
behalf of NHC to repay the advance if it shall ultimately be
determined in a proceeding that the Officer or Officers did not breach
any warranty, representation or guaranty provided in this Certificate.
If a request is made by NHC to the Officers for advancement of any
expenses incurred in connection with any claim, suit or proceeding for
which NHC has claimed indemnification under this Certificate, NHC
shall furnish to the Officer satisfactory evidence as to the amount of
such expenses.
4. Notice to Officers. NHC shall notify the Officers in writing of any
matter for which NHC intends to seek indemnification hereunder as soon
as reasonably practicable following the recognition of claims by NHC,
but in no event shall any claim or notice be deemed properly made
after the applicable statute of limitations with respect to such claim
has expired.
5. Enforcement. The Officers acknowledge that NHC is relying upon this
Certificate in furtherance of the undertakings provided for in the
Agreement. If a claim for indemnification or advancement of expenses
is not paid in full by the Officers within 30 days after a written
claim has been received from NHC by the Officers, NHC may at any time
bring suit against the Officers to recover the unpaid amount of the
claim. If successful in whole or in part in such suit, NHC shall also
be entitled to be paid all reasonable fees and expenses (including
without limitation fees of counsel) in bringing and prosecuting such
claim. The Court in such suit may order indemnification or the
advancement of expenses as the Court deems proper (subject to any
express limitation contained herein). Further, the Officers shall
indemnify NHC from and against any and all expenses (including
attorneys' fees) and, if requested by NHC, shall (within 10 business
days of such request) advance such expenses to NHC, which are incurred
by NHC in connection with any claim asserted against or suit brought
by NHC for recovery hereunder.
6. Miscellaneous.
a. Survival. The rights of NHC under this Certificate shall continue
only so long as NHC has advances outstanding pursuant to the
Agreement.
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b. Governing Law. This Certificate shall be governed by the laws of
the State of Arizona.
c. Severability. If any provision of this Certificate shall be held
to be prohibited by or invalid under applicable law, such
provision shall be deemed amended to accomplished the objectives
of the provision as originally written and to the fullest extent
permitted by law and all other provisions shall remain in full
force and effect.
d. Amendment. No amendment, termination or cancellation of this
Certificate shall be effective unless in writing signed by the
Officers and NHC.
e. Subrogation. In the event of payment under this Certificate the
Company shall be subrogated to the extent of such payment to all
of the rights of recovery of NHC, who shall execute all papers
required and shall do everything that may be necessary to secure
such rights, including the execution of such documents necessary
to enable NHC effectively to bring suit to enforce such rights.
f. Headings. The headings in this Certificate are for convenience
only and are not to be considered in construing this Certificate.
g. Counterparts. This Certificate may be executed in counterparts,
all of which shall be deemed an original, and together shall
constitute one document.
IN WITNESS WHEREOF, each of the undersigned officers has executed this
Officers' Certificate effective as of the 3rd day of July, 2003.
ONESOURCE TECHNOLOGIES, INC.
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
----------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, Acting CFO
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SECRETARY'S CERTIFICATE
-----------------------
AUTHORITY TO SELL AND/OR BORROW AGAINST ACCOUNTS RECEIVABLE
WHEREAS, ONESOURCE TECHNOLOGIES, INC. (the "Company") is or may be in need of
additional operating funds; be it
RESOLVED, that the Company is hereby authorized to sell its accounts receivable
to New Horizon Capital, LLC ("NHC") and/or borrow, from time to time, such sums
as may be advisable or necessary for the proper operation of its business, said
borrowing or sale to be upon such terms and conditions as the CEO of the Company
may deem appropriate, and for such purpose the Company may sell, assign and
pledge its accounts receivable investor, equipment and any other personal
property as collateral security to NHC.
FURTHER RESOLVED, that the CEO of the Company, is hereby authorized to sign and
deliver the Master Accounts Receivable Purchase and Security Agreement or any
related documents to evidence the sale or pledge of such accounts receivable on
behalf of the Company.
The undersigned hereby certifies that he/she is the duly elected and qualified
Secretary and the custodian of the books and records of the Company duly formed
pursuant to the laws of the State of Delaware, and that the foregoing is a true
record of resolutions duly adopted at a meeting of the directors/stockholders of
the Company and that said meeting was held in accordance with applicable State
law and the Bylaws of the above-named corporation on _________, and that said
resolution is now in full force and effect without modification or rescission.
IN WITNESS WHEREOF, I have executed my name as Secretary of the above-named
Company this Third day of July, 2003.
A TRUE RECORD
ATTEST
-------------------------------
Secretary
-------------------------------
Print Name
NEW HORIZON CAPITAL, LLC
AUTHORIZATION
This will be New Horizon Capital, LLCs authority to accept the signature(s)
which appear herein below, on all Schedules, Base Certificates and Assignment(s)
of Accounts, or in any other connection having to do with the Master Accounts
Receivable Purchase and Security Agreement entered into between New Horizon
Capital, LLC and the undersigned dated July 3, 2003.
Said authorized signatures are as follows:
1. _____________________________ _____________________________________
Signature Print/Type Name Title
2. _____________________________ _____________________________________
Signature Print/Type Name Title
3. _____________________________ _____________________________________
Signature Print/Type Name Title
4. _____________________________ _____________________________________
Signature Print/Type Name Title
5. ____________________________ _____________________________________
Signature Print/Type Name Title
6. ____________________________ _____________________________________
Signature Print/Type Name Title
Sincerely,
ONESOURCE TECHNOLOGIES, INC.
By: __________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO
Date: ________________________
NEW HORIZON CAPITAL, LLC
New Horizon Capital, LLC ("NHC") would like to take this opportunity to offer
you several options with respect to the method of funding Advances and related
Reserves from our office pursuant to the terms of the Master Accounts Receivable
Purchase and Security Agreement and applicable Schedules or Base Certificates.
They are as follows:
CHECK ONE
________ 1) Client pick up
________ 2) Direct wiring of funds to Client account - charge of $30.00 per wire
will be deducted from Client's Reserve account or funding.
________ 3) Federal Express our check to your address - charge of $20.00 per
check will be deducted from Client's Reserve account or funding.
________ 4) Regular U.S. Mail our check to your address.
Please indicate your choice above, place your signature below and return to us
as soon as possible.
NEW HORIZON CAPITAL, LLC ONESOURCE TECHNOLOGIES, INC.
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Signature Signature
▇▇▇▇ ▇▇▇▇▇▇▇, Co-Managing Member ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, CEO
Date: ___________________________ Date: ____________________________
New Horizon Capital, LLC
Client Wire Remittance Authorization Form
Client Name: ONESOURCE TECHNOLOGIES, INC. Date: July 3, 2003
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I hereby authorize New Horizon Capital, LLC to wire funds to the following
account:
Bank Name:
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ABA #:
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Secondary ABA #(if applicable):
Account #:
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Account Name:
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Other Information:
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By:
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Title:
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For NHC Use Only:
Credit: Ops: Finance:
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