Exhibit 10.46


 


WELLS


FARGO


logo


 


ACCOUNT PURCHASE AGREEMENT


 


This Agreement is dated as of December 1,
2003 between Wells Fargo Business Credit, Inc., (“WFBCI “) and Management
Alliance Corporation (“Customer”).  The
Customer and WFBCI agree as follows:


 


ARTICLE I

Purpose of Agreement


 


1.01  Purpose of Agreement.  The Customer desires to sell and assign to
WFBCI acceptable accounts receivable and WFBCI desires to purchase such
accounts on the terms and conditions set forth herein.  The purpose of this agreement is commercial
in nature and not for household, family and/or personal use.  This agreement sets forth the terms and
conditions on which WFBCI will consider purchasing accounts receivable from the
Customer.


 


ARTICLE II 

Definitions


 


2.01  “Account” means
any right of payment of the net amount for goods sold, or leased and delivered
or services rendered in the ordinary course of Customer’s business which is not
evidenced by an instrument or chattel paper.


 


2.02  “Acceptable Account”
means an Account, in an amount not to be less than $100, acceptable to WFBCI,
which conforms to the warranties and terms set forth herein, net of any credits
or allowances of any nature and is not an Unacceptable Account as defined
below.


 


2.03  “Account Debtor”
means Customer’s customer or any other person or entity owing money to the
Customer with respect to the Account.


 


2.04  “Account Debtor Dispute”
means a claim by Account Debtor against Customer, of any kind whatsoever, that
reduces or may reduce the amount collectible from Account Debtor by WFBCI which
arises at anytime, whether before or after signing of this Agreement or the
purchase of any Account.  Any dispute
which is a combination of a Credit Problem and an Account Debtor Dispute shall
be deemed to be an Account Debtor Dispute for purposes of this Agreement.


 


2.05  “Affiliate”
means Information Systems Consulting Corp., Datatek Group Corporation and
Texcel Services, Inc. jointly or any of them.


 


2.06  “Collateral”
means the intangible or tangible property given as security to WFBCI by
Customer for any obligations and liabilities of Customer to WFBCI under this
Agreement.


 


2.07  “Customer”
means the seller and assignor of the Accounts.


 


2.08  “Credit Problem”
means, as established by the Customer, that an Account Debtor is unable to pay
its debts because the Account Debtor is the subject of a bankruptcy,
insolvency, or receivership proceeding within 75 days of the date of the
invoice.


 


2.09  “Event of Default”
shall mean the existence of a default pursuant to Article VII hereunder,
or a default under any documents given to WFBCI in connection with this
Agreement.


 


2.10  “Initial Payment”
shall mean with respect to a given Account an amount equal to the gross face
amount of such Account less stated trade discounts offered by the Customer to
the Account Debtor less the following amount:


 





















 


	
  Accounts for temporary/contract placements billed in
  the ordinary course:

  	
   

  	
  10

  	
  %

  
	
  Accounts earned for temporary/contract placements
  but not billed:

  	
   

  	
  15

  	
  %

  
	
  Accounts for permanent placement

  	
   

  	
  40

  	
  %

  



 


These
percentages may be adjusted by WFBCI at any time at WFBCI’s sole discretion.


 


2.11  “Minimum Fee”
shall mean the minimum fee paid per month by the Customer as stated in Section 6.06
below.


 


2.12  “WFBCI Discount” means the amount to be paid
by the Customer according to the following schedule:


 


	
  Days 

  (for payment

  of account)

  	
   

  	
  Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1-30

  	
   

  	
  1.1 of the gross
  face amount of each Account purchased by WFBCI

  	
   

  
	
  31+

  	
   

  	
  0.035%
  additionally per day until the account is paid in fall.

  	
   

  



 


If any Event of Default exists, as defined below, this
discount may increase in an amount to be determined by WFBCI at its sole
discretion. WFBCI may, upon prior written notice to Customer and at its sole
discretion, change the amount of any fee or charge if WFBCI’s cost or cost of
funds increases.  However, in the event
WFBCI increases the discount by more than 25% in the absence of an Event of
Default and in the absence of an increase in WFBCI’s cost of funds, Customer
may terminate this Agreement by giving WFBCI 60 days notice of termination
within 5 days of its receipt of notice of the increased discount, Minimum Fees
shall be payable for the three month period following WFBCI’s receipt of such
notice.  Any change in the discount or
fees or charges shall be effective upon delivery of the notice.


 


2.13  “Net Purchase Price”
for any account means an amount equal to the gross face amount of such Account
less WFBCI’s Discount and other charges with respect to such Account and less
any amount of any trade discounts, credits or allowances, or any other
reductions or adjustments to such Account taken by the Account Debtor.


 


2.14  “Origination Fee”
shall mean the fee payable on closing of this Agreement as set forth in Section 6.06
below.


 


2.15  “Part Payment”
for any account means any payment made by WFBCI to the Customer with respect to
such account which is less than the full Net Purchase Price as more fully
described in Article III below.


 


2.16  “Renewal Fee”
shall mean the fee payable on each annual renewal of this Agreement (under Section 9.01
or otherwise) as set forth in section 6.06 below.


 


2.17  “Repurchase Price”
for any Account means the Net Purchase Price less any amounts collected from
the Account Debtor on the Account plus all fees, costs or expenses associated
with the repurchase or collection of such Account.  In any event where repurchase is required
under this Agreement, WFBCI, at its discretion, may charge the Repurchase Price
to Customer’s account which may create a deficit balance under Section 3.06
below.


 


2.18  “Unacceptable Account”
shall mean Accounts which are not acceptable in WFBCI’s sole discretion
including but not limited to the following Accounts:


 


(a)  Accounts owed by
any unit of government, whether foreign or domestic (provided, however, that
there shall be included in Acceptable Accounts that portion of Accounts owed by
such units of government for which the Customer has provided evidence
satisfactory to WFBCI that (i) WFBCI has a first priority perfected security
interest and (ii) such Accounts may be enforced by WFBCI directly against such
unit of government under all applicable laws);


 





















 


(b)  Accounts owed by an
Account Debtor located outside the United States which are not (i) backed by a
bank letter of credit naming WFBCI as beneficiary or assigned to WFBCI in WFBCI’s
possession and acceptable to WFBCI in all respects, in its sole discretion,
(ii) covered by a foreign receivables insurance policy acceptable to WPBCI in
its sole discretion;


 


(c)  Accounts owed by an
Account Debtor that is insolvent, the subject of bankruptcy proceedings or have
gone out of business;


 


(d)  Accounts owed by a
shareholder, subsidiary, affiliate, officer or employee of the Customer;


 


(e)  Accounts not
subject to a duly perfected security interest in WFBCI’s favor or which are
subject to any lien, security interest or claim in favor of any Person other
than WFBCI including without limitation any payment or performance bond;


 


(f)  Accounts that have
been restructured, extended, amended or modified;


 


(g)  That portion of
Accounts that constitutes advertising, finance charges, service charges or
sales or excise taxes;


 


(h)  Accounts that have
been invoiced, paid or partially paid in advance of the fall delivery and
acceptable of goods or the performance and acceptance of services or in advance
of the submission of the Account to WFBCI.


 


(h)  Accounts, or
portions thereof, that fail to conform to the representation and warranties
contained herein or are otherwise deemed unacceptable by WFBCI in its sole
discretion.


 


ARTICLE III

Purchase of Accounts


 


3.01  Pursuant to the terms herein, Customer hereby
sells, transfers and assigns to WFBCI, its successors and assigns, as absolute
owner, and WFBCI hereby purchases and accepts from the Customer all of the
Customer’s right, title and interest in and to:


 


(a)  all of the Customer’s
Accounts together with all rights of action accrued or to accrue thereon,
including, without limitation, full power to collect, sue for, compromise,
assign, in whole or in part, or in any other manner enforce collection thereof
in Customer’s name or otherwise; and


 


(b)  all right, title
and interest of the Customer in and to the books and records evidencing or
relating to the Accounts, all deposits, or other security for the obligation of
any person under or relating to the Accounts, all goods relating to, or which
by sale have resulted in, the Accounts, including goods returned by any Account
Debtor, debtor or obligor in any way obligated on or in connection with the
Account including, without limitation, the Account Debtor, all rights of
stoppage in transit, replevin, repossession and reclamation and all other
rights of action of an unpaid vendor or lienor; and


 


(c)  proceeds of the
foregoing in any form.


 


3.02  Approval: WFBCI
shall not purchase an Account unless such Account is first submitted to WFBCI
by Customer for approval.  WFBCI is not
obligated to buy any Account from a Customer that WFBCI does not deem
acceptable in its sole discretion.


 


3.03  Purchase: Upon
approval and acceptance by WFBCI of an Account for the assignment and sale of
an Account to WFBCI, WFBCI shall purchase and customer shall assign and sell to
WFBCI such account.


 





















 


3.04  Purchase Price:
As consideration for the assignment and sale of an Account to WFBCI, WFBCI
shall pay the to the Customer the Net Purchase Price for such account on the
terms and conditions as stated herein.


 


3.05  Payment of Purchase Price:
Except as provided in Section 6.13 hereof, and if no Default exists
hereunder, WFBCI shall pay for each Account purchased hereunder the Net
Purchase Price for such Account to Customer as follows:


 


(a)  Upon assignment or
sale of an Account to WFBCI and receipt of all documents and forms described in
Section 3.07 below and upon fulfillment of all terms precedent to such
sale or assignment as more fully described below, WFBCI shall pay to the
Customer the Initial Payment with respect to such Account.


 


(b)  After collection of
an Account by WFBCI, and if there is no Event of Default hereunder, WFBCI shall
pay to the Customer the amount collected on the Account less: (i) the Initial
Payment, (ii) Part Payment(s), and (iii) any fees, expenses or charges owed to
WFBCI as more fully described herein. 
This payment shall be made on a weekly basis.


 


(c)  In the event of a
default hereunder (or an event which with the passage of time or notice would
become an event of default), WFBCI may withhold any payment otherwise due to
Customer under this Agreement and charge any obligation of Customer to WFBCI
against such amount or WFBCI may hold such amount as collateral for any
obligations of Customer to WFBCI.


 


3.06  Reporting and Statement of
Account: On a weekly basis, or as otherwise determined by WFBCI at
its sole discretion, WFBCI shall prepare, and make available to the Customer,
an accounting of the purchases, collections, fees and charges related to this
Agreement which have occurred during that week or other period.  Should such a statement of account indicate a
deficit balance, the Customer shall immediately pay to WFBCI the amount of such
deficit plus accrued interest on such deficit balance.  Interest shall accrue on any deficit balance
at the annual rate of eighteen percent (18%), calculated on a daily basis, not
to exceed the applicable legal limit until such deficit is paid in full.


 


3.07  Required Forms.  When Customer offers Accounts to WFBCI for
sale, WFBCI shall receive (a) an assignment of Accounts, in a form satisfactory
to WFBCI and signed by an authorized representative of Customer, (b) an
original invoice or such other document acceptable to WFBCI in its sole
discretion, (c) a copy of the Bill of Lading, (d) proof of delivery, (e)
contract, purchase order, or purchase order number which corresponds with such
invoice(s), as appropriate to the business of Customer, (f) notification of
assignment and waiver of offset signed by the Account Debtor in a form
acceptable to WFBCI in its sole discretion and (g) any other document which
WFBCI may require.


 


3.08  Labels:
Customer shall imprint, label, or otherwise mark each original invoice (or the
electronic equivalent of an invoice) or other such documentation accepted by
WFBCI for each Account which indicates that the Account has been assigned
and/or sold to WFBCI with the following language:


 


This invoice has been assigned to

and is payable to:

Well Fargo Business Credit, Inc.

Department 1494

Denver, Colorado 80291-1494

For in-formation call 303/433-9300


 


3.09  Notification:
Prior to purchasing any Accounts, WFBCI will notify all Account Debtors of the
assignment of Accounts and direct the Account Debtor to make payments directly
to WFBCI.


 


3.10  Sole Property:
Once WFBCI has purchased an Account, any and all payments from the Account
Debtor as to that Account are the sole property of WFBCI.


 





















 


3.11  Credit Risk:
The purchase of any Accounts from the first submission of Accounts under Section 3.02
shall be with full recourse to Customer. 
Thereafter, provided there is no event of default hereunder, and
Customer has complied with all requirements of this Agreement, WFBCI assumes
the risk of non-payment due to a Credit Problem with respect to Purchased
Accounts.


 


3.12  Provided there is no event of default
hereunder, and Customer has complied with all requirements of this Agreement,
WFBCI assumes the risk of nonpayment due to a Credit Problem with respect to
purchased Accounts.


 


3.13  Book Entry:
Customer shall, immediately upon sale of Accounts to WFBCI, make proper entries
on its books and records disclosing the absolute sale of said Accounts to
WFBCI, including the proper inclusion of the language stated in Section 3.08
above, on said books and records and other documents as so directed by WFBCI.


 


ARTICLE IV

Customer’s Representations and Warranties and Covenants


 


4.01  Representations and
Warranties.  Customer hereby
represents and wan-ants and as follows:


 


4.01 (a)  Customer is
properly licensed, qualified and authorized to operate the business of
Management Alliance Corporation, and Customer’s trade name (s) have been
properly filed and published as required by applicable law.  Customer, and the persons executing this
document, are duly authorized to execute and deliver this Agreement and all
other documents required to be executed and delivered hereunder.


 


4.01 (b)  Customer is
solvent, is not a Debtor under the United States Bankruptcy Code or under the
direction of a receiver, and Customer has made and shall continue to make
timely payment on deposit of any tax required to be deducted and withheld by
Customer from the wages of any of its employees.


 


4.01 (c)  Customer is,
at the time of purchase of each Account by WFBCI the lawful owner of and has
good and undisputed title to such Account. 
Each Account, at the time of purchase is free from any liens, mortgages,
restrictions or encumbrances.  Each
Account offered for sale to WFBCI is an Acceptable Account as defined in Section 2.02
above.


 


4.01 (d)  Each Account
Debtor’s business is solvent to the best of Customer’s information and
knowledge at the time of this Agreement and at the time each Account is
presented to WFBCI for purchase.


 


4.01 (e)  Each Account
offered for sale to WFBCI is an accurate and undisputed statement of
indebtedness owed by Account Debtor to Customer for a certain sum which is due
and payable in 30 days or less, or within such time as is agreed to in writing
by WFBCI and Customer, is for a bona fide sale, delivery and acceptance of
merchandise or performance of services which have been received and finally
accepted by the Account Debtor.  Customer
has all rights to transfer or sell such Accounts to VYTBCI and such Accounts
are payable by Account Debtor without offset, deduction or counterclaim.


 


4.01 (f)  Customer does
not own, control or exercise dominion over, in any way whatsoever, the Account
Debtor or the business of any Account Debtor for whom Accounts are to be sold
by Customer to WFBCI.


 


4.01 (g)  All financial
records, statements, books or other documents shown to WFBCI by Customer at
anytime, either before or after the signing of this Agreement are true and
accurate.


 


4.01 (h)  Customer has
not transferred, pledged or granted a security interest in Customer’s Accounts
or other personal property to any other party which Customer has not fully
disclosed in writing to WFBCI.


 


4.01 (i)  There is no
action, suit or proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or to the knowledge of Customer,
threatened against or affecting Customer exceeding the value of $100,000.00,
which if adversely determined, would have a material adverse effect on the
business, operations, property, assets or condition, financial or otherwise, of


 





















 


Customer other than those proceedings previously disclosed in
public filings with the Securities and Exchange Commission.


 


4.01 (j)  The execution
and performance by Customer of the terms and provisions of this Agreement and
the execution and delivery of any other documents required to be executed and
delivered hereunder have been duly authorized by all requisite company action,
and neither the execution nor the performance of this Agreement or any other
documents required to be delivered hereunder, will violate any provision of
law, any order of any court or other agency of government, the governing
documents of Customer, or any agreement or other instrument to which Customer
is a party, or by which Customer is bound, or be in conflict with, result in
breach of, or constitute (with due notice or lapse of time or both) a default
under, or result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of
Customer, pursuant to any such agreement or instrument, except as provided
hereunder.  Customer agrees that it will
execute and perform all terms hereunder.


 


4.02  Negative Covenants.  Customer agrees as follows:


 


4.02 (a)  Customer will
not under any circumstances or in any manner whatsoever, interfere with any of
WFBCI’s rights under this Agreement.


 


4.02 (b)  For the
duration of this Agreement and for any period thereafter for as long as any
obligation to repurchase or indebtedness whatsoever remains owing by Customer
to WFBCI, Customer will not sell or assign Accounts except to WFBCI.


 


4.02 (e)  Customer shall
not pledge, transfer or grant a security interest in any personal property or
Accounts of Customer nor shall Customer consent to the transfer, pledge or
grant a security interest in or the placement of any lien or encumbrance, by
any other party on any personal property or Accounts belonging to the Customer
for the term of this Agreement and for as long as Customer may be required to
repurchase any Account or is indebted to WFBCI hereunder without the written
consent of WFBCI.  Customer shall provide
written notice to WFBCI within five business days of Customer obtaining any knowledge,
from any source, of the assertion, filing, recording or perfection by any
means, of any non-consensual lien, claim or encumbrance against the property of
Customer.


 


4.02 (d)  Customer will
not change or modify the terms of the original invoice or agreement with the
Account Debtor or the order of payment on Accounts sold to WFBCI unless WFBCI
first consents to such change or modification in writing.


 


4.02 (e)  Customer shall
not be involved in a dispute of any kind in excess of $10,000.00 with an
Account Debtor, regardless of validity, during the term of this Agreement.


 


4.02 (f)  Customer shall
not breach any warranties or promises in this Agreement with regard to any
unpaid Account or Account Debtor from whom payment on any such Account is due.


 


4.02 (g)  Customer shall
not intentionally contribute to, or aggravate any Credit Problem of any Account
Debtor.


 


4.03  Affirmative Covenants.  Customer agrees as follows:


 


4.03 (a)  With respect
to misdirected payments, whenever any payment on any Account comes into
Customer’s possession, Customer shall hold such payment in trust and
safekeeping, as the property of WFBCI, and immediately turn over to WFBCI such
payment in the same form as it was received by Customer to WFBCI.  Customer shall pay a misdirected payment fee
in the amount of fifteen percent (15%) of the amount of any payment on account
of a Purchased Account which has been received by Customer and not delivered in
kind to WFBCI on the next business day following the date of receipt by
Customer.  Further, Customer shall
segregate and hold in trust and safekeeping, as the property of WFBCI


 





















 


and immediately turn over to WFBCI, any goods or inventory
returned to, reclaimed or repossessed by the Customer which are covered by an
Account purchased by WFBCI.


 


4.03 (b)  Customer will
maintain such insurance covering Customer’s business and/or the property of the
Account Debtors as is customary and adequate for businesses similar to the
business of Customer in an amount as is sufficient to compensate for reasonably
foreseeable loss, and promptly pay all premiums with respect to the policies
covering such insurance.  Further, the
Customer shall have WFBCI named as loss payee for such insurance.


 


4.03 (c)  Customer will
immediately notify WFBCI of any material disputes between Account Debtor and
Customer or the return of any product by Account Debtor to Customer.


 


4.03 (d)  Customer will
repurchase any Account subject to an Account Debtor Dispute of any kind
whatsoever or as required herein.


 


4.03 (e)  Customer will
notify WFBCI in writing prior to any change in the location of any of its
places of business, including the location of the Customer’s inventory or, if
Customer has or intends to acquire any additional place of business.  Customer will not change its chief executive
office or the office or offices where Customer’s books and records concerning
Accounts are kept without prior written consent of WFBCI.


 


4.03 (f)  Customer will
immediately notify WFBCI in writing of any proposed change of Customer’s name,
identity, legal entity, corporate structure, business dissolution, use of any
additional trade name, or any proposed change in any of the officers,
principals, partners, and/or owners of Customer and will not effect any such
change without WFBCI’s written consent.


 


4.03 (g)  Customer will
immediately notify WFBCI in writing of the commencement of any legal proceeding
or service of any legal document affecting the Customer including, but not
limited to, any judgments, liens, attachments, garnishments, complaints, or the
filing of a voluntary or involuntary petition under the United States
Bankruptcy Code.


 


4.03 (h)  At least once
per quarter, or once per month if Customer is in default, Customer will furnish
to WFBCI financial statements, including but not limited to a statement of
profit and loss and a balance sheet, satisfactory proof of payment and
compliance with all federal, state and local tax requirements and any other
information requested by WFBCI.


 


4.03 (i)  Customer will
immediately notify WFBCI of the return of any product by Account Debtor to
Customer.


 


4.03 (j)  Customer shall
immediately notify WFBCI of any claim or loss or offset of any kind against
Customer or WFBCI asserted by Account Debtor during any time period covered by
this Agreement.


 


4.03 (k)  Customer shall
notify WFBCI immediately if it files a petition under any chapter of the United
States Bankruptcy Code, if any involuntary petition is filed against Customer
or if a receiver is appointed to manage the property of Customer.


 


4.03 (l)  Upon the
occurrence of an Account Debtor Dispute, Customer shall immediately pay to
WFBCI the Repurchase Price for any and all Accounts so disputed.


 


ARTICLE V

Security Interest


 


5.01  Security
Interest/Collateral: As further inducement for WFBCI to enter into
this Agreement, Customer grants to WFBCI, as collateral for the repayment of
any and all obligations and liabilities whatsoever of Customer


 





















 


to WFBCI
a security interest, under the Uniform Commercial Code, in the following
described property, as defined under the Uniform Commercial Code, hereinafter
collectively called “Collateral”: All presently existing or hereafter arising,
now owned or hereafter acquired property including, but not limited to,
accounts, general intangibles, contract rights, any deposit or reserve required
by and held by WFBCI in connection with this agreement, investment property,
deposit accounts, inventory, instruments, chattel paper, documents, insurance
proceeds, and all books and records pertaining to accounts and all proceeds and
products of the foregoing property.


 


5.02  Security Documents:
Customer shall execute all and deliver to WFBCI any and all documents and
instruments as WFBCI may request from time to time, including, without
limitation, UCC financing statements or amendments.  Customer authorizes WFBCI to file a financing
statement with any appropriate authority reflecting its security interest and
further authorizes WFBCI to file other filings including amendments (other than
amendments adding collateral) or terminations, as WFBCI deems appropriate.


 


ARTICLE VI

Operational Provisions


 


6.01  Credit Problems:
If Customer asserts that nonpayment of an Account is due to a Credit Problem,
then Customer shall provide documentation satisfactory to WFBCI in its
reasonable discretion, establishing that such nonpayment is due solely to a
Credit Problem.  If WFBCI is not
satisfied that nonpayment is solely due to a Credit Problem, then customer
shall be obligated to pay the Repurchase Price for such Account to WFBCI.  The documentation required under this section may
be provided at any time prior to the Account being charged to Customer’s
account at which time nonpayment is deemed to be due to a Customer Dispute
hereunder.


 


6.02  Power of Attorney:
In order to carry out this Agreement and avoid unnecessary notification of
Account Debtors, Customer irrevocably appoints WFBCI, or any person designated
by WFBCI, as its special attorney in fact, or agent, with power to:


 


i.  strike out Customer’s
address on all invoices delivered to Account Debtors and note WFBCI’s address
on all invoices.


 


ii.  receive, open and
dispose of all mail addressed to Customer (including any trade name of
Customer) sent to WFBCI’s address.


 


iii.  endorse the name
of Customer or Customer’s trade name on any checks or other evidences of payment
that may come into the possession of WFBCI on Accounts , and on any other
documents relating to any of the Accounts or to Collateral.


 


iv.  in Customer’s name,
or otherwise, demand, sue for, collect, and give releases for any and all
monies due to or become due on Accounts.


 


v.  compromise,
prosecute, or defend any action, claim or proceeding as to said Accounts.


 


vi.  in the event of
Default, offer a trade discount to Customer’s Account Debtor exclusive of
Customer’s normal business custom with said Account Debtor.


 


vii.  initiate
electronic debit or credit entries through the ACH system to Customer’s account
or any other deposit account maintained by Customer wherever located.


 


viii.  sign Customer’s
name on any notice of assignment, financing statement, amendment to any
financing statement and on any notices to Account Debtors.


 


ix.  do any and all
things necessary and proper to carry out the purposes intended by this
Agreement.


 





















 


The
authority granted to WFBCI under this provision shall remain in full force and
effect until all assigned Accounts are paid in full and any indebtedness of
Customer to WFBCI is discharged.


 


6.03  Double Payments:
Should WFBCI receive a double payment on an Account or other payment which is
not identified, WFBCI shall carry these sums as open items in its accounting
and shall return any double payment to the payor or apply such unidentified
payment pursuant to the terms hereof upon proper identification and
documentation. 6.04 Hold Harmless: Customer shall hold WFBCI harmless against
any Account Debtor ill will arising from WFBCI’s collecting or attempting to
collect on any Accounts.


 


6.05  Taxes: Should
any excise, sale, use or other tax be imposed by any federal, state or local
authority requiring a deduction or withholding from the proceeds of sale of
Accounts, or if the Account Debtor is authorized to withhold and deduct such
tax or levy, then the Customer shall immediately pay WFBCI the amount of the
tax or levy so withheld, and the Customer shall indemnify and hold WFBCI
harmless from any loss or expense on account of such tax.


 


6.06  Minimum and Origination
Fee: Customer shall pay a Minimum Fee per month in the amount of
$20,000.00 during the term of this Agreement (and any extension hereof).  Customer shall pay any deficiency between the
Minimum Fee and the WFBCI Discount calculated under Section 2.12 hereof on
the 15th day of the next calendar month; provided, however, any payment of the
WFBCI Discount by any Affiliate under its respective Account Purchase Agreement
with WFBCI may be credited against Customers obligation to pay the Minimum
Fee.  Customer shall pay an origination
fee in the amount of $60,000.00 Upon closing of this Agreement; provided,
however, any payment of the origination fee by any Affiliate under its
respective Account Purchase Agreement with WFBCI may be credited against
Customers obligation to pay this origination fee.  On the renewal date of this agreement,
Customer shall pay a renewal fee of $35,000.00; provided, however, any payment
of the renewal fee by any Affiliate under its respective Account Purchase
Agreement with WFBCI may be credited against Customers obligation to pay the
renewal fee, WFBCI agrees, however, that if Customer obtains financing from
Wells Fargo Bank or any of its subsidiaries, and ceases selling accounts
hereunder, all Minimum Fees shall be waived from the date of such financing or
the date selling of accounts ceases, whichever is later.


 


6.07  Customer Disputes:
Any Account which is unpaid for 90 days or more after the invoice date shall be
deemed to be unpaid due to a Customer Dispute unless prior to such time the
information required by Section 6.01 is provided to and accepted by WFBCI.


 


6.08  Reports: Except
as provided by Section 3.06, and in the event Customer requests information
from WFBCI regarding Customer’s account hereunder, such requests shall be
subject to the schedule of fees provided by WFBCI, which schedule may
be adjusted by WFBCI from time to time in its discretion.


 


6.09 WFBCI Settlement of Accounts: WFBCI may settle any Account
Debtor Dispute with any Account Debtor. 
Such settlement does not relieve Customer any obligation (including any
repurchase obligation) under this Agreement with respect to any Accounts.


 


6.10 Customer Settlement of Accounts: If Customer does not fully
and promptly settle any Account Debtor Dispute, the Customer shall repurchase
each Account that is subject to such Account Debtor Dispute from WFBCI for its
Repurchase Price.


 


6.11  Documents: If
documents submitted by Customer to WFBCI for the purchase of any Account are
mistaken, fraudulent, incorrect or erroneous, or if the Customer fails to
submit any document required by WFBCI under this Agreement for the purchase of
any Account, then such Account shall be deemed to be an Account Debtor Dispute
and the Customer shall repurchase such Account and pay the Repurchase Price as
stated herein.


 


6.12  Information: In
the event WFBCI provides financial information to Customer regarding third
parties, whether by setting credit limits, at the request of Customer or
otherwise, Customer understands that WFBCI is not making any representations or
warranties or expressing an opinion as to the creditworthiness of any such
third party.


 





















 


6.13  Permanent Cash Reserves:
Customer agrees that a permanent reserve shall be established in the amount of
$700,000 as additional collateral to cover potential shortfalls in payments on
Accounts due to Account Debtors taking discounts and to cover losses related to
the sale of accounts for permanent placements under this agreement.  Customer agrees that it will fund $400,000.00
of the reserve at closing of this agreement, an additional $100,000 within 60
days of closing and $100,000.00 every 30 days thereafter until the reserve is
fully funded. WFBCI may withhold funds otherwise due to Customer under Section 3.05
hereof to fund the reserve.  Customer
further agrees that WFBCI may withhold funds otherwise due under Section 3.05
hereof if the reserve falls below $700,000.00 during the term hereof.  WFBCI may offset against the reserve fund for
amounts owed due to discounts or offsets against permanent placements by the
Account Debtor and, in any event upon the occurrence of An Event of
Default.  Any amounts deposited by any
Affiliate shall be credited against Customer’s obligation to fund the reserve.


 


ARTICLE VII

Default


 


7.01 Any
one or more of the following shall be an Event of Default hereunder:


 


7.01 (a)  Customer shall
fail to pay any indebtedness to WFBCI when due or repurchase any Account when
required hereunder.


 


7.01 (b)  Customer shall
breach any term, provision, promise, warranty, representation or covenant under
this Agreement or under any other agreements, contracts, between Customer and
WFBCI or obligation to WFBCI.


 


7.01 (c)  The
appointment of any receiver or trustee of all or a substantial portion of the
assets of Customer.


 


7.01 (d)  Customer shall
become insolvent and/or unable to pay debts as they mature, shall make a
general assignment for the benefit of creditors or shall voluntarily file a
petition under the United States Bankruptcy Code or any similar law.


 


7.01 (e)  Any
involuntary petition in bankruptcy shall be filed against Customer and is not
dismissed within 60 days or an order for relief is entered against Customer
under the United States Bankruptcy Code.


 


7.01 (f)  Any levies,
attachment, executions, tax assessments or similar process shall be issued
against the Collateral.


 


7.01 (g)  Any financial
statements, profit and loss statements, or schedules, other statements or
documents furnished by Customer to WFBCI are false or incorrect in any material
respect.


 


7.01 (h)  Any documents
submitted by Customer to WFBCI for the purchase of an Account are mistaken,
fraudulent, incorrect and/or erroneous in any material respect, or if the
Customer fails to submit any document required by WFBCI under this Agreement
for the purchase of that Account.


 


7.01 (i)  Any Account
Debtor shall assert a claim or offset of any kind against Customer or WFBCI
during any time period covered by this Agreement.


 


7.01 (j) Customer shall fail to maintain any reserve required
by this Agreement.


 


ARTICLE VIII

Remedies


 


8.01  In the event of an occurrence of an Event of
Default, WFBCI may do any one or more of the following:


 





















 


8.01 (a)  Declare
immediately due and payable, and to charge back, all indebtedness of Customer
to WFBCI, including without limitation (i) outstanding purchased Accounts, (ii)
any unpaid Minimum Fees and (iii) all other fees, costs and expenses as
required hereunder.


 


8.01 (b)  Cease
purchasing Accounts under this Agreement.


 


8.01 (c)  Notify any
Account Debtor and take possession of Collateral and collect any Accounts
without judicial process.


 


8.01 (d)  Require
Customer to assemble the Collateral and the records pertaining to Accounts and
make them available to WFBCI at a place designated by WFBCI.


 


8.01 (e)  Enter the
premises of Customer and take possession of the Collateral and of the records
pertaining to the Accounts and any other Collateral.


 


8.01 (f)  Grant
extensions, compromise claims and settle Accounts for less than face value, all
without prior notice to Customer.


 


8.01 (g)  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 Customer.


 


8.01 (h)  Initiate
electronic credit or debit entries through the ACH system to and from Customer’s
deposit account maintained by Customer wherever located.


 


8.01 (i)  Hold Customer
liable for any deficiency for any amounts due and owing to WFBCI.


 


8.01 (j)  Require the
Customer to repurchase any and all Accounts, whether disputed or undisputed,
and pay the Repurchase Price for those Accounts as provided herein.


 


8.01 (k)  Cease making
reports or accountings to the Customer as otherwise required by this Agreement.


 


ARTICLE IX

Term and Termination


 


9.01 This
Agreement shall continue in full force and effect until the earliest of (a) two
years from the date of this Agreement; (b) any date agreed to in writing by the
parties hereto, (c) upon at least 60 days written notice; or (d) any date set
by WFBCI upon the occurrence of an Event of Default.  This Agreement shall automatically continue
for the following twenty-four-month period unless sixty days prior to the
termination date, the Customer notifies WFBCI in writing that the Customer
wishes to terminate this Agreement.  On
the date of termination, all obligations owing by the Customer to WFBCI, except
as provide in Section 2.12 above, if Customer elects to terminate by
notice in the first year of this Agreement, any unpaid Minimum Fees for that
one-year period, shall be accelerated and become immediately due and payable in
fall without further notice or demand. 
If Customer elects to terminate this Agreement in the second year of the
initial term, or any subsequent year, Customer shall be obligated to pay the
Minimum Fee for the three month period following the receipt of notice of
termination by WFBCI.


 


9.02 Upon
termination, Customer shall repurchase any and all Accounts, whether disputed
or undisputed, as may be requested by WFBCI, and shall pay the Repurchase Price
for those Accounts as provided herein as well as any other indebtedness or
obligations owed to WFBCI by Customer including any unpaid Minimum Fee for the
term of this Agreement as set forth in Section 9.01 above.  WFBCI continues and shall continue to have a
security interest in the Collateral of Customer until all amounts owed to WFBCI
by Customer are paid in full or are satisfied.


 





















 


ARTICLE X

Miscellaneous Provisions


 


10.01  Binding on Future Parties:
This Agreement inures to the benefit of and is binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto except
that the Customer shall not have the right to assign its rights hereunder or
any interest herein without WFBCI’s prior written consent.


 


10.02  Cumulative Rights:
No failure or delay by WFBCI in exercising any right, power or remedy under the
Agreement or documents given in connection with the Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy under the Agreement.  The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.


 


10.03  Waiver: WFBCI
may not waive its rights and remedies unless the waiver is in writing and
signed by WFBCI.  A waiver by WFBCI of a
right or remedy under this Agreement on one occasion is not a waiver of the
right or remedy on any subsequent occasion.


 


10.04  Choice of Law:
This Agreement shall be governed by and construed in accordance with the laws
of the State of Colorado.


 


10.05  Invalid Provisions:
Any provision of this Agreement which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.


 


10.06  Entire Agreement:
This instrument contains the entire Agreement between the parties.  This Agreement, together with the documents
given in connection herewith, comprises the complete and integrated agreement
of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof.


 


10.07  Amendment:
Except as otherwise provided herein, any addendum or modification hereto must
be signed by both parties.


 


10.08  Effective: This
Agreement becomes effective when it is accepted and executed by an authorized
officer of WFBCI.


 


10.09  Information:
Without limiting WFBCI’s right to share information regarding the Customer and
its affiliates with WFBCI’s agents, accountants, lawyers and other advisors,
Wells Fargo Corporation, and all direct and indirect subsidiaries of Wells
Fargo Corporation may exchange any and all information they may have in their
possession regarding the Customer and its Affiliates, and the Customer waives
any right of confidentiality it may have with respect to such exchange of such
information.


 


10.10  Indemnification:
Customer agrees to indemnify and hold WFBCI harmless from any and all
liability, claims and damages, including attorneys’ fees, costs of suit and
interest which WFBCI may incur as a result of the failure of Customer to pay
withholding taxes due and payable to any taxing authority.


 


10.11  Notices hereunder:
All notices and communications hereunder shall be given or made to the parties
at their respective addresses set forth below, or at such other address as the
addressee may hereafter specify for the purpose of written notice to the other
party hereto.  Such notices and
communications shall be effectively given by WFBCI when and if given in writing
and delivered to the address set forth herein, delivered by facsimile or duly
deposited in the mails with first-class postage prepaid.


 


10.12  Costs and Expenses:
Except as is prohibited by law, the Customer agrees to pay on demand all costs
and expenses, including (without limitation) attorneys’ fees, incurred by WFBCI
in connection with this Agreement and any other related document or agreement,
and the transactions contemplated hereby, including without limitation all such
costs, expenses and fees incurred in connection with the negotiation, due
diligence, preparation, execution, amendment, administration, performance,
collection and enforcement of the obligations and all such documents


 





















 


and
agreements and the creation, perfection, protection, satisfaction, foreclosure
or enforcement of any security interest granted hereunder, the collection of
any Account or any obligation owed by Customer to WFBCI.


 


10.13  Audit: The
Customer hereby agrees to pay WFBCI, on demand, audit fees in connection with
any audits or inspections conducted by WFBCI of any Collateral or the Customer’s
operations or business at the rates established from time to time by WFBCI as
its audit fees, together with all actual out-of-pocket costs and expenses
incurred in conducting any such audit or inspection.


 


10.14  Jurisdiction:
The parties hereby (a) consent to the personal jurisdiction of the state and
federal courts located in the State of Colorado in connection with any
controversy related to this Agreement; (b) waive any argument that venue in any
such forum is not convenient, (c) agree that any litigation initiated by WFBCI
or the Customer in connection with this Agreement shall be venued in either the
State Courts of the City and County of Denver, Colorado or the United States
District Court, District of Colorado, and (d) agree that a final judgment in
any such suit action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.


 


10-15 Waiver of Jury Trial: THE CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF, BASED ON
OR PERTAINING TO THIS AGREEMENT.


 


Executed
and accepted this        day of                               
at                               


 


	
  Management Alliance Corporation 

  	
   

  	
  WELLS FARGO BUSINESS CREDIT, INC.

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /S/ J. Michael Moore

  	
   

  	
   

  	
  By:

  	
  Kei Lehigh Kei

  	
   

  
	
  CEO

  	
   

  	
  Lehigh-Vice President

  
	
   

  	
   

  	
  NAME AND TITLE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Witnessed by:

  
	
  Sworn to and subscribed before me this 1st day of

  	
   

  	
   

  
	
  December 2003.

  	
   

  	
  /S/ Terry J. O’Brien

  	
   

  
	
   

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  
	
  /S/ Claudia Jones

  	
   

  	
   

  	
  TERRY J. O’BRIEN CONTROLLER

  	
   

  
	
  NOTARY PUBLIC

  	
   

  	
  NAME AND TITLE

  
	
  [My commission expires October 7, 2006] and seal

  	
   

  	
   

  
											



 


 


 





















 


 


WELLS

FARGO

logo


 


CERTIFICATION OF INCUMBENCY


 


The
undersigned, the duly elected and acting Secretary of Management Alliance
Corporation a Texas corporation, does hereby certify that set forth below are
the names and titles of the officers of the Corporation and that set forth
above each name is the true and correct signature of each officer.


 


	
  /S/ J. Michael Moore

  	
   

  
	
  J. Michael Moore, CEO

  
	
   

  
	
  /S/ W. Glenn Brown

  	
   

  
	
  W. Glenn Brown, President

  



 





















 


	
  /S/ Kenneth E. Dopher

  	
   

  
	
  Kenneth E. Dopher, CFO/Secretary

  
	
   

  
	
   

  	
   

  
	
  Treasurer

  
			



 


IN
WITNESS WHEREOF, I have hereunto set my hand and seal of the Corporation this 1st
day of December, 2003.


 


(SEAL)


 


	
   

  	
  /S/ Kenneth E. Dopher

  	
   

  
	
   

  	
  Secretary