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EXHIBIT 10.15(a)
NATIONSBANK, N.A. (SOUTH)
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated as of July 25, 1996, by and
between NationsBank, N.A. (South), a national banking association ("Bank") and
the Borrower described below.
In consideration of the Loans described below and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, Bank
and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. Capitalized terms not
otherwise defined herein are used herein as defined in the Promissory Note. In
addition to any other terms defined herein, the following terms shall have the
meaning set forth with respect thereto:
A. BORROWER: Syntellect Inc., a Delaware corporation
B. BORROWER'S ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
C. CURRENT ASSETS. "Current Assets" means the aggregate
amount of all of Borrower's assets which would, in accordance with GAAP,
properly be defined as current assets.
D. CURRENT LIABILITIES. "Current Liabilities" means the
aggregate amount of all current liabilities as determined in accordance with
GAAP, but in any event shall include all liabilities except those having a
maturity date which is more than one year from the date as of which such
computation is being made.
E. HAZARDOUS MATERIALS. "Hazardous Materials" include
all materials defined as hazardous materials or substances under any local,
state or federal environmental laws, rules or regulations, and petroleum,
petroleum products, oil and asbestos.
F. LIQUID ASSETS. "Liquid Assets" means, at any time,
the sum of the Borrower's (i) cash, (ii) securities readily convertible into
cash, and (iii) accounts receivable not more than 30 days overdue.
G. LOAN. "Loan" means any loan described in Section 2
hereof and any subsequent loan which states that it is subject to this Loan
Agreement.
H. LOAN DOCUMENTS. "Loan Documents" means this Loan
Agreement and any and all promissory notes executed by Borrower in favor of Bank
and all other documents, instruments, guarantees, certificates and agreements
executed and/or delivered by Borrower, any guarantor or third party in
connection with any Loan.
I. NET WORTH. "Net Worth" means the amount by which
total assets exceed total liabilities in accordance with GAAP.
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J. SUBSIDIARIES. "Subsidiaries" means, collectively, all
of the subsidiaries of the Borrower.
K. ACCOUNTING TERMS. All accounting terms not
specifically defined or specified herein shall have the meanings generally
attributed to such terms under generally accepted accounting principles
("GAAP"), as in effect from time to time, consistently applied, with respect to
the financial statements referenced in Section 3.H. hereof.
2. LOANS.
A. LOAN. Bank hereby agrees to make one or more loans to
Borrower in the aggregate principal face amount of $2,000,000, The obligation to
repay the loans is evidenced by a promissory note of even date herewith (the
promissory note together with any and all renewals, extensions or rearrangements
thereof being hereafter collectively referred to as the "Promissory Note")
having a maturity date (as such date may be amended or extended from time to
time, the "Maturity Date"), repayment terms and interest rate as set forth in
the Promissory Note.
i. REVOLVING CREDIT FEATURE. The Loan provides
for a revolving line of credit under which Borrower may from
time to time, borrow, repay and re-borrow funds.
ii. USAGE FEE. Borrower will pay hereafter on the
last business day of each month for the period from and
including the date the Loan was established to and including
the Maturity Date of the Loan, a usage fee at a rate per annum
of 0.45% of the average daily unused portion of the Loan
during such period. The Borrower may at any time upon written
notice to the Bank permanently reduce the amount of the Loan
at which time the obligation of the Borrower to pay a usage
fee shall thereupon correspondingly be reduced.
iii. LETTER OF CREDIT SUBFEATURE.
(a) As a subfeature under the Loan, Bank may
from time to time issue letters of credit for the
account of Borrower (each, a "Letter of Credit" and
collectively, "Letters of Credit"); provided,
however, that the form and substance of each Letter
of Credit shall be subject to approval by Bank in its
sole discretion; and provided further that the
aggregate undrawn amount of all outstanding Letters
of Credit shall not at any time exceed $2,000,000.
Each Letter of Credit shall be issued for a term not
to exceed 360 days, as designated by Borrower. The
undrawn amount of all Letters of Credit plus any and
all amounts paid by Bank in connection with drawings
under any Letter of Credit for which the Bank has not
been reimbursed shall be reserved under the Loan and
shall not be available for advances thereunder. Each
draft paid by Bank under a Letter of Credit shall be
deemed an advance under the Loan and shall be repaid
in accordance with the terms of the Loan; provided
however, that if the Loan is not available for any
reason whatsoever, at the time any draft is paid by
Bank, or if advances are not available under the Loan
in such amount due to any limitation of borrowing set
forth herein, then the full amount of such drafts
shall be immediately due and payable, together with
interest
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thereon, from the date such amount is paid by Bank to
the date such amount is fully repaid by Borrower, at
the Default Rate. In such event, Borrower agrees that
Bank, at Bank's sole discretion may debit Borrower's
deposit account with Bank for the amount of such
draft.
(b) In the event there should remain
outstanding any undrawn Letter of Credit on the
Maturity Date with an expiration date later than the
Maturity Date, then, notwithstanding the Borrower's
inability to obtain further advances under the Loan
and the Borrower's repayment of any other amounts
outstanding under the Loan, (i) the Borrower's
obligations under this Agreement shall remain in full
force and effect until (A) such Letter of Credit
either expires or is returned to the Bank undrawn and
(B) all other Obligations of the Borrower are repaid
or performed in full, and (ii) the Borrower shall
promptly deposit with the Bank cash collateral in an
amount not less than the aggregate undrawn face
amounts of all such Letters of Credit, upon such
terms and conditions as may be acceptable to the
Bank.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank as follows:
A. GOOD STANDING. Borrower is a corporation, duly
organized, validly existing and in good standing under the laws of the state of
its incorporation and has the power and authority to own its property and to
carry on its business in each jurisdiction in which Borrower does business.
B. AUTHORITY AND COMPLIANCE. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur and perform the
obligations provided for therein, all of which have been duly authorized by all
proper and necessary action of the appropriate governing body of Borrower. No
consent or approval of any public authority or other third party is required as
a condition to the validity of any Loan Document other than any such consent or
approval that has already been obtained, and Borrower is, to the best of its
knowledge, in compliance with all laws and regulatory requirements to which it
is subject.
C. BINDING AGREEMENT. This Agreement and the other Loan
Documents executed by Borrower constitute valid and legally binding obligations
of Borrower, enforceable in accordance with their terms, subject to limitations
imposed by bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally or the application of general equitable
principles.
D. LITIGATION. There is no proceeding involving Borrower
pending or, to the knowledge of Borrower, threatened before any court or
governmental authority, agency or arbitration authority, except as set forth on
Schedule 3 D hereto.
E. NO CONFLICTING AGREEMENTS. There is no charter,
bylaw, stock provision, partnership agreement or other document pertaining to
the organization, power or authority of Borrower and no provision of any
existing agreement, mortgage, indenture or contract binding on Borrower or
affecting its property, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the other
Loan Documents.
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F. OWNERSHIP OF ASSETS. Borrower has good title to its
assets, and its assets are free and clear of liens, except those granted to Bank
or as set forth on Schedule 3 F hereto.
G. TAXES. All taxes and assessments due and payable by
Borrower have been paid or are being contested in good faith by appropriate
proceedings and the Borrower has filed all tax returns which it is required to
file.
H. FINANCIAL STATEMENTS. The financial statements of
Borrower heretofore delivered to Bank have been prepared in accordance with GAAP
applied on a consistent basis throughout the period involved and fairly present
Borrower's financial condition as of the date or dates thereof, and there has
been no material adverse change in Borrower's financial condition or operations
since December 31, 1995. All factual information furnished by Borrower to Bank
in connection with this Agreement and the other Loan Documents is and will be
materially accurate and complete on the date as of which such information is
delivered to Bank and is not and will not be incomplete by the omission of any
material fact necessary to make such information not misleading.
I. PLACE OF BUSINESS. Borrower's chief executive office
is located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
J. ENVIRONMENTAL. The conduct of Borrower's business
operations and the condition of Borrower's property does not and will not, to
the best of its knowledge, violate any federal laws, rules or ordinances for
environmental protection, regulations of the Environmental Protection Agency,
any applicable local or state law, rule, regulation or rule of common law or any
judicial interpretation thereof relating primarily to the environment or
Hazardous Materials.
K. CONTINUATION OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made under this Agreement shall be deemed to be
made at and as of the date hereof and at and as of the date of any advance under
any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of
all obligations of Borrower under the Loan Documents, Borrower will, unless Bank
consents otherwise in writing (and without limiting any requirement of any other
Loan Document):
A. FINANCIAL CONDITION. Maintain Borrower's financial
condition as follows, determined in accordance with GAAP applied on a consistent
basis throughout the period involved:
i. Maintain a ratio of Liquid Assets to Current
Liabilities of not less than 1.1 to 1.0 as of the last day of
any calendar quarter.
ii. Maintain Net Worth as of the last day of any
calendar quarter of not less than (a) $22,000,000 for the
calendar quarter ending September 30, 1996, and (b) the sum of
(i) the minimum Net Worth required by this Section to have
been maintained by the Borrower as of the last day of the
immediately preceding calendar quarter plus, (ii) an amount
equal to 80% of the Borrower's consolidated net income (but
only if such is greater than zero) for the calendar quarter
then ended.
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iii. Maintain a ratio of total liabilities to Net
Worth of not more than 0.75 to 1.0 as of the last day of any
calendar quarter.
B. FINANCIAL STATEMENTS AND OTHER INFORMATION. Maintain
a system of accounting satisfactory to Bank and in accordance with GAAP applied
on a consistent basis throughout the period involved, permit Bank's officers or
authorized representatives to visit and inspect Borrower's books of account and
other records at such reasonable times and as often as Bank may desire, and pay
the reasonable fees and disbursements of any accountants or other agents of Bank
selected by Bank for the foregoing purposes. Unless written notice of another
location is given to Bank, Borrower's books and records will be located at
Borrower's chief executive office set forth above or at the Borrower's office in
Phoenix, Arizona. Except as otherwise provided below, financial statements
called for below shall be prepared in form and content acceptable to Bank and by
independent certified public accountants acceptable to Bank.
In addition, Borrower will:
i. Within 90 days of the close of each fiscal year,
furnish to Bank audited financial statements of Borrower on a
consolidated basis with its Subsidiaries for such fiscal year,
together with a consolidating financial statement of Borrower
and its Subsidiaries; provided, however, that such
consolidating financial statement shall not be required to be
covered by the audit opinion of Borrower's certified public
accountants.
ii. Within 45 days of the close of each fiscal
quarter, furnish to Bank unaudited financial statements
(including a balance sheet and profit and loss statement) of
Borrower, on a consolidated basis with its Subsidiaries, for
such fiscal quarter.
iii. Furnish to Bank a compliance certificate for
(and executed by an authorized representative of) Borrower
concurrently with and dated as of the date of delivery of each
of the financial statements as required in paragraphs i and ii
above, containing (a) a certification that the financial
statements of even date are true and correct and that the
Borrower is not in default under the terms of this Agreement,
and (b) computations and conclusions, in such detail as Bank
may request, with respect to compliance with this Agreement,
and the other Loan Documents, including computations of all
quantitative covenants.
iv. Furnish to Bank promptly such additional
information, reports and statements respecting the business
operations and financial condition of Borrower and its
Subsidiaries, respectively, from time to time, as Bank may
reasonably request.
C. INSURANCE. Maintain insurance with responsible
insurance companies on such of its properties, in such amounts and against such
risks as is customarily maintained by similar businesses operating in the same
vicinity, specifically to include fire and extended coverage insurance covering
all assets, business interruption insurance, workers compensation insurance and
liability insurance, all to be with such companies and in such amounts as are
satisfactory to Bank, for the benefit of Borrower and Bank, as their interests
may appear, payable to Bank as loss payee, and providing for at least 30 days
prior notice to Bank of any
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cancellation thereof. Satisfactory evidence of such insurance will be supplied
to Bank prior to funding under the Loan(s) and 30 days prior to each policy
renewal.
D. EXISTENCE AND COMPLIANCE. Maintain its existence,
good standing and qualification to do business, where required and comply with
all laws, regulations and governmental requirements including, without
limitation, environmental laws applicable to it or to any of its property,
business operations and transactions, except where the failure to do so would
not materially impair the Borrower's operations or impair in any manner the
Borrower's ability to perform its obligations under this Agreement and the other
Loan Documents.
E. ADVERSE CONDITIONS OR EVENTS. Promptly advise Bank in
writing of (i) any condition, event or act which comes to its attention that
would or might reasonably he expected to materially adversely affect Borrower's
financial condition or operations or Bank's rights under the Loan Documents,
(ii) any litigation filed by or against Borrower having an amount in
controversy, in the aggregate, greater than $100,000, (iii) any event that has
occurred that would constitute a Default and (iv) any uninsured or partially
uninsured loss through fire, theft, liability or property damage in excess of an
aggregate of $100,000.
F. TAXES AND OTHER OBLIGATIONS. Pay all of its taxes,
assessments and other obligations, including, but not limited to taxes, costs or
other expenses arising out of this transaction, as the same become due and
payable, except to the extent the same are being contested in good faith by
appropriate proceedings in a diligent manner.
G. MAINTENANCE. Maintain all of its tangible property in
good condition and repair and make all necessary replacements thereof, and
preserve and maintain all licenses, trademarks, privileges, permits, franchises,
certificates and the like necessary for the operation of its business.
H. ENVIRONMENTAL. Immediately advise Bank in writing of
(i) any and all enforcement, cleanup, remedial, removal, or other governmental
or regulatory actions instituted, completed or threatened pursuant to any
applicable federal, state, or local laws, ordinances or regulations relating to
any Hazardous Materials affecting Borrower's business operations; and (ii) all
claims made or threatened by any third party against Borrower relating to
damages, contribution, cost recovery, compensation, loss or injury resulting
from any Hazardous Materials. Borrower shall immediately notify Bank of any
remedial action taken by Borrower with respect to Borrower's business
operations. Borrower will not use or permit any other party to use any Hazardous
Materials at any of Borrower's places of business or at any other property owned
by Borrower except such materials as are incidental to Borrower's normal course
of business, maintenance and repairs and which are handled in compliance with
all applicable environmental laws. Borrower agrees to permit Bank, its agents,
contractors and employees to enter and inspect any of Borrower's places of
business or any other property of Borrower at any reasonable times upon three
(3) days prior notice for the purposes of conducting an environmental
investigation and audit (including taking physical samples) to insure that
Borrower is complying with this covenant and Borrower shall reimburse Bank on
demand for the costs of any such environmental investigation and audit. Borrower
shall provide Bank, its agents, contractors, employees and representatives with
access to and copies of any and all data and documents relating to or dealing
with any Hazardous Materials used, generated, manufactured, stored or disposed
of by Borrower's business operations within five (5) days of the request
therefore.
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5. NEGATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will not, without the
prior written consent of Bank (and without limiting any requirement of any other
Loan Documents):
A. TRANSFER OF ASSETS OR CONTROL. Sell, lease, assign or
otherwise dispose of or transfer any of its or its Subsidiaries' assets, except
in the normal course of business, or enter into any merger or consolidation, or
transfer control or ownership of the Borrower or any Subsidiary or form or
acquire any new subsidiary; provided, however, that the Borrower may (i)
transfer assets from time to time to its Subsidiary, Telecorp Systems, Inc., and
(ii) transfer assets from time to time to its other Subsidiaries (excluding
Telecorp Systems, Inc.), or sell assets, so long as such transfers and sales do
not exceed, in the aggregate in any calendar year, an amount exceeding five
percent (5%) of the Net Worth of the Borrower, as determined by the Borrower's
most recently provided financial statements.
B. LIENS. Grant, suffer or permit any contractual or
noncontractual lien on or security interest in its assets or in the assets of
any of its Subsidiaries, except in favor of Bank, or fail to promptly pay when
due all lawful claims, whether for labor, materials or otherwise.
Notwithstanding the foregoing, the Borrower may grant, or permit any Subsidiary
to grant, Liens on its assets (excluding the Collateral) securing indebtedness
or other obligations permitted under Section 5 D. below.
C. EXTENSIONS OF CREDIT. Make or permit any Subsidiary
to make, any loan or advance to any person or entity, or purchase or otherwise
acquire, or permit any subsidiary to purchase or otherwise acquire, any capital
stock, assets, obligations, or other securities of, make any capital
contribution to, or otherwise invest in or acquire any interest in any entity,
or participate as a partner or joint venturer with any person or entity, except
for the purchase of direct obligations of the United States or any agency
thereof with maturities of less than one year. Notwithstanding the foregoing,
the Borrower may (i) make loans to its employees not exceeding, in the aggregate
at any time outstanding, $100,000, (ii) make loans to its Subsidiary, Telecorp
Systems, Inc., and (iii) make loans to its Subsidiaries (other than Telecorp
Systems, Inc.) not exceeding, in the aggregate during any calendar year,
$1,000,000.
D. BORROWINGS. Create, incur, assume or become liable in
any manner for, or permit any of its Subsidiaries to create, incur, assume or
become liable in any manner for, any indebtedness (for borrowed money, deferred
payment for the purchase of assets, payments in respect of capital leases, as
surety or guarantor for the debt for another, or otherwise) other than to Bank,
except for normal trade debts incurred in the ordinary course of business, and
except for additional indebtedness disclosed to Bank in writing and not
exceeding, in the aggregate, $250,000 at any time.
E. CHARACTER OF BUSINESS. Change the general character
of business of the Borrower and its Subsidiaries as conducted at the date
hereof, or engage in any type of business not reasonably related to its business
as presently conducted.
F. MANAGEMENT CHANGE. Make any substantial change in its
present executive or management personnel, including without limitation ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ Nussallah.
G. LOCKBOX ACCOUNTS. The Borrower will establish one or
more lockbox accounts with the Bank and will direct each of its account debtors
to submit all payments owing
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the Borrower to such lockbox accounts. The Borrower will cause its Subsidiary,
Telecorp. Systems, Inc., to establish one or more lockbox accounts with the Bank
and will direct each of its account debtors to submit all payments owing such
Subsidiary to such lockbox accounts. The Borrower hereby grants, and will cause
such Subsidiary to grant, a first priority security interest in each such
account to the Bank to secure the Obligations. The Bank will apply the net
balance of each such lockbox account against the outstanding balance of the
Loans each day. The Borrower will cause each lockbox account or deposit account
open in its own name or in the name of Telecorp. Systems, Inc. with any
institution other than the Bank to be closed before October 1, 1996.
6. DEFAULT. A "Default" shall exist under this Agreement if (a)
any default shall exist under any other Loan Document and any applicable cure
period shall have expired and any applicable notice shall have been given, or
(b) Borrower shall default in the payment of any amounts due and owing under the
Loan or should it fail to timely and property observe, keep or perform any term,
covenant, agreement or condition in this Agreement or any other Loan Document or
in any other loan agreement, promissory note, security agreement, deed of trust,
deed to secure debt, mortgage, assignment or other contract securing or
evidencing payment of any indebtedness of Borrower to Bank or any affiliate or
subsidiary of NationsBank Corporation.
7. REMEDIES UPON DEFAULT. If a Default shall occur and be
continuing, Bank shall have all rights, powers and remedies available under this
Agreement and each of the other Loan Documents as well as all rights and
remedies available at law or in equity.
8. NOTICES. All notices, requests or demands which any party is
required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to the other party at the following
address:
Borrower: Syntellect Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank: NationsBank, N.A. (South)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as any party may designate by written notice to the
other party. Each such notice, request and demand shall be deemed given or made
(a) if sent by mail, upon the earlier of the date of receipt or five (5) days
after deposit in the U.S. Mail, first class postage prepaid, and (b) if sent by
any other means, upon delivery.
9. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all costs and expenses,
including reasonable attorneys' fees (including outside counsel fees and all
allocated costs of Bank's in-house counsel if permitted by applicable law),
incurred by Bank in connection with (a) negotiation and preparation of this
Agreement and each of the Loan Documents, and (b) all other costs and attorneys'
fees incurred by Bank for which Borrower is obligated to reimburse Bank in
accordance with the terms of the Loan Documents.
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10. MISCELLANEOUS. Borrower and Bank further covenant and agree as
follows, without limiting any requirement of any other Loan Document:
A. CUMULATIVE RIGHTS AND NO WAIVER. Each and every
right granted to Bank under any Loan Document, or allowed it by law or equity
shall be cumulative of each other and may be exercised in addition to any and
all other rights of Bank, and no delay in exercising any right shall operate as
a waiver thereof, nor shall any single or partial exercise by Bank of any right
preclude any other or future exercise thereof or the exercise of any other
right. Borrower expressly waives any presentment, demand, protest or other
notice of any kind, including but not limited to notice of intent to accelerate
and notice of acceleration. No notice to or demand on Borrower in any case
shall, of itself, entitle Borrower to any other or future notice or demand in
similar or other circumstances.
B. APPLICABLE LAW. This Loan Agreement and the rights
and obligations of the parties hereunder shall be governed by and interpreted in
accordance with the laws of Georgia and applicable United States federal law.
C. AMENDMENT. No modification, consent, amendment or
waiver of any provision of this Loan Agreement, nor consent to any departure by
Borrower therefrom, shall be effective unless the same shall be in writing and
signed by an officer of Bank, and then shall be effective only in the specified
instance and for the purpose for which given. This Loan Agreement is binding
upon Borrower, its successors and assigns, and inures to the benefit of Bank,
its successors and assigns; however, no assignment or other transfer of
Borrower's rights or obligations hereunder shall be made or be effective without
Bank's prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Loan Agreement.
D. DOCUMENTS. All documents, certificates and other
items required under this Loan Agreement to be executed and/or delivered to Bank
shall be in form and content satisfactory to Bank and its counsel.
E. PARTIAL INVALIDITY. The unenforceability or
invalidity of any provision of this Loan Agreement shall not affect the
enforceability or validity of any other provision herein and the invalidity or
unenforceability of any provision of any Loan Document to any person or
circumstance shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.
F. INDEMNIFICATION. Notwithstanding anything to the
contrary contained in Section 10(G), Borrower shall indemnify, defend and hold
Bank and its successors and assigns harmless from and against any and all
claims, demands, suits, losses, damages, assessments, fines, penalties, costs or
other expenses (including reasonable attorneys' fees and court costs) arising
from or in any way related to any of the transactions contemplated hereby,
including but not limited to actual or threatened damage to the environment,
agency costs of investigation, personal injury or death, or property damage, due
to a release or alleged release of Hazardous Materials, arising from Borrower's
business operations, any other property owned by Borrower or in the surface or
ground water arising from Borrower's business operations, or gaseous emissions
arising from Borrower's business operations or any other condition existing or
arising from Borrower's business operations resulting from the use or existence
of Hazardous Materials, whether such claim proves to be true or false. Borrower
further agrees that its indemnity obligations shall include, but are not limited
to, liability for damages resulting from the personal
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injury or death of an employee of the Borrower, regardless of whether the
Borrower has paid the employee under the workmen's compensation laws of any
state or other similar federal or state legislation for the protection of
employees. The term "property damage" as used in this paragraph includes, but is
not limited to, damage to any real or personal property of the Borrower, the
Bank, and of any third parties. The Borrower's obligations under this paragraph
shall survive the repayment of the Loan and any deed in lieu of foreclosure or
foreclosure of any deed to secure debt, deed of trust, security agreement or
mortgage securing the Loan.
G. SURVIVABILITY. All covenants, agreements,
representations and warranties made herein or in the other Loan Documents shall
survive the making of the Loan and shall continue in full force and effect so
long as the Loan is outstanding or the obligation of the Bank to make any
advances under the Loan shall not have expired or so long as any Letter of
Credit issued by the Bank under this Agreement shall remain outstanding.
11. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO
THIS INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN
THE COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS
INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT
AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION
AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW;
OR (III) LIMIT THE RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH
AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL
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PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY
REMEDIES SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES
BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT
PURSUANT TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF
SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR
FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE
THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
12. NO ORAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT AND THE OTHER
LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
BORROWER: SYNTELLECT INC. BANK: NationsBank, N.A. (South)
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ (Seal) By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- -----------------------------
Title: Chief Financial officer Title: Assistant Vice President
----------------------- -----------------------------
[Corporate Seal]
Attest: /s/ ▇ ▇ ▇▇▇▇▇▇▇ (Seal)
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Name: ▇ ▇ ▇▇▇▇▇▇▇
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Title: CEO
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