EXHIBIT 10(x)(a)
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LOAN MODIFICATION AND FORBEARANCE AGREEMENT
This Loan Modification and Forbearance Agreement is entered into as of
July 22, 2002, by and between Syntellect Inc. ("Borrower") and Silicon Valley
Bank ("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may be
owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other
documents, an Accounts Receivable Financing Agreement, dated May 14, 2002, as
may be amended from time to time (the "Loan Agreement"). Defined terms used but
not otherwise defined herein shall have the same meanings as in the Loan
Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness".
2. DESCRIPTION OF COLLATERAL AND GUARANTIES. Repayment of the Indebtedness is
secured by the Collateral described in the Loan Agreement. Hereinafter, the
above-described security documents and guaranties, together with all other
documents securing repayment of the Indebtedness shall be referred to as the
"Security Documents". Hereinafter, the Security Documents, together with all
other documents evidencing or securing the Indebtedness shall be referred to as
the "Existing Loan Documents".
3. FORBEARANCE. Bank agrees to forbear from exercising its rights and remedies
under the Existing Loan Documents and at law ("Default Rights") until the
earlier of (a) October 30, 2002, or (b) the occurrence of a Default under this
Agreement (the "Forbearance Period"), notwithstanding Borrower's existing
default under the Loan Agreement as a result of Borrower's failure to comply
with the profitability covenant set forth in Section 6.2 of the Loan Agreement
for the fiscal quarter ended June 30, 2002 (the foregoing being referred to as
"Existing Defaults"). Hereinafter, the Existing Loan Documents, as modified by
this Loan Modification and Forbearance Agreement are hereinafter collectively
called the "Loan Documents".
By signing below, Borrower acknowledges that it is currently in default and as a
result of the Existing Defaults, Bank is entitled to exercise its remedies as
provided in the Existing Loan Documents and as provided under applicable law.
The Forbearance Period shall be immediately terminated, without notice, if (a)
Borrower breaches of any of the terms set forth in this Agreement, (b) the
occurrence of any default (other than the Existing Defaults) under the Existing
Loan Documents, or (c) if any recital, representation or warranty made herein,
in any document executed and delivered in connection herewith, or in any report,
certificate, financial statement or other instrument or document previously, now
or hereafter furnished by or on behalf of the Borrower in connection with this
Agreement or any other document executed and delivered in connection with this
Agreement, shall prove to have been false, incomplete or misleading in any
material respect on the date as of which it was made (collectively, a
"Default"), whereupon Bank, at its option, without any notice to Borrower, may
immediately cease making any Advances and may immediately exercise any Default
Rights.
Bank's agreement to forbear from enforcing its Default Rights under the Existing
Loan Documents until the end of the Forbearance Period (a) in no way shall be
deemed an agreement by Bank to waive Borrower's compliance with all other terms
of the Existing Loan Documents, as modified by this Loan Modification and
Forbearance Agreement and (b) shall not limit or impair Bank's right to demand
strict performance of all other terms and covenants as of any date. Nothing in
this Loan Modification and Forbearance Agreement in any way shall constitute
Bank's waiver of the Existing Defaults. Borrower further agrees that the
exercise of any Default Rights by Bank upon termination of the Forbearance
Period shall not be affected by reason of this Agreement, and the Borrower shall
not assert as a defense thereto the passage of time, estoppel, laches or any
statute of limitations to the extent that the exercise of any Default Rights was
precluded by this Agreement.
4. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Loan Agreement.
1. The following terms as defined in Section 1 entitled
"Definitions" are hereby amended to read as follows:
"Facility Amount" is $3,750,000.
"Facility Period" is the period beginning on this date and
continuing until July 14, 2003, unless the period is
terminated sooner by Bank with notice to Borrower or by
Borrower under Section 3.6.
2. Pursuant to Section 3.5 entitled "Collateral Handling Fee",
through November 1, 2002 the Collateral Handling Fee shall be
increased to 0.75% as a result of the Existing Defaults.
Provided that Borrower is in compliance with Section 6.2(L)
for the quarter ending September 30, 2002, and no Event of
Default has occurred and is continuing (other than the
Existing Defaults) the Collateral Handling Fee shall revert to
0.25%.
5. CONSISTENT CHANGES. The Loan Documents are hereby amended wherever necessary
to reflect the changes described above.
6. PAYMENT OF LOAN FEE. Borrower shall pay to Bank a fee in the amount of Ten
Thousand Dollars ($10,000) (the "Loan Fee") plus all out-of-pocket expenses.,
including, but not limited to fees and expenses of Bank's counsel.
7. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor signing
below) agrees that, as of the date hereof, it has no defenses against the
obligations to pay any amounts under the Indebtedness. The Borrower acknowledges
and warrants that Bank has acted in good faith and has conducted in a
commercially reasonable manner its relationships with Borrower in connection
with this Agreement and in connection with the Loan Documents, including the
Loan Agreement and the Indebtedness, the Borrower hereby waives and releases any
claims to the contrary.
8. WAIVER AND RELEASE OF CLAIMS. (a) Borrower and each Guarantor signing below
(each of the foregoing being a "Releasing Party") hereby releases, acquits, and
discharges Bank and Bank's employees, agents, representative, consultants,
attorneys, fiduciaries, servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent corporations, and
related corporate divisions (all of the foregoing hereinafter called the
"Released Parties"), from all actions and causes of action, judgments,
executions, suits, debts, claims, demands, liabilities, obligations, damages,
and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter arising, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date of execution hereof, and in any way directly or indirectly arising out of
or in any way connect to this Loan Modification and Forbearance Agreement and
the Existing Loan Documents, including, but not limited to, claims relating to
any settlement negotiation (all of the foregoing hereinafter called the
"Released Matters"). Each Releasing Party acknowledges that the agreements in
this section are intended to be in full satisfaction of all or any alleged
injuries or damages arising in connection with the Released Matters.
(b) Each Releasing Party acknowledges that it has not relied, in
executing the release set forth in this section, upon any representations,
warranties, or conditions by Bank or any other entity except as are specifically
set forth in this Loan Modification and Forbearance Agreement.
(c) Nothing contained herein shall be construed at any time as an
admission by Bank of any liability to Borrower or any other entity.
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(d) Each Releasing Party warrants to Bank that it has not purported to
transfer, assign, or otherwise convey any right, title or interest of such
Releasing Party in any Released Matter to any other entity, and that the
foregoing constitutes a full and complete release of all Released Matters.
9. CONTINUING VALIDITY. Borrower (and each Guarantor signing below) understands
and agrees that in modifying the existing Indebtedness, Bank is relying upon
Borrower's representations, warranties, and agreements, as set forth in the Loan
Documents. Except as expressly modified pursuant to this Loan Modification and
Forbearance Agreement, the terms of the Loan Documents remain unchanged and in
full force and effect. Bank's agreement to modifications to the existing
Indebtedness pursuant to this Loan Modification and Forbearance Agreement in no
way shall obligate Bank to make any future modifications to the Indebtedness.
Nothing in this Loan Modification and Forbearance Agreement shall constitute a
satisfaction of the Indebtedness. It is the intention of Bank and Borrower to
retain as liable parties all makers and endorsers of the Loan Documents, unless
the party is expressly released by Bank in writing. No maker, endorser, or
guarantor will be released by virtue of this Loan Modification and Forbearance
Agreement. The terms of this Paragraph apply not only to this Loan Modification
and Forbearance Agreement, but also to all subsequent loan modification
agreements.
10. INTEGRATION. This Loan Modification and Forbearance Agreement, together with
the Loan Documents, constitutes the entire agreement and understanding among the
parties relating to the subject matter hereof, and supersedes all prior and
contemporaneous proposals, negotiations, agreements, and understandings relating
to the subject matter. In entering into this Loan Modification and Forbearance
Agreement, Borrower acknowledges that it is relying on no statement,
representation, warranty, covenant, or agreement of any kind made by the Bank or
any employee or agent of Bank, except for the agreements of Bank set forth
herein. No modification, rescission, waiver, release, or amendment of any
provision of this Loan Modification and Forbearance Agreement shall be made,
except by a written agreement signed by Bank and Borrower.
11. CONDITIONS. The effectiveness of this Loan Modification and Forbearance
Agreement is conditioned upon Borrower's payment of the Loan Fee.
12. GOVERNING LAW, HEADINGS. This Loan Modification and Forbearance Agreement is
one of the Loan Documents defined in the Loan Agreement and shall be governed
and construed in accordance with the laws of the State of California. The
headings and captions in this Loan Modification and Forbearance Agreement are
for the convenience of the parties only and are not a part of this Loan
Modification and Forbearance Agreement.
This Loan Modification and Forbearance Agreement is executed as of the
date first written above.
BORROWER: SILICON:
SYNTELLECT INC. SILICON VALLEY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇.
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Title: Vice President and CFO Title: Vice President
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