EXHIBIT 10.4
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AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
CORILLIAN CORPORATION
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TABLE OF CONTENTS
Page
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1 ACCOUNTING AND OTHER TERMS............................................................... 1
2 LOAN AND TERMS OF PAYMENT................................................................ 1
2.1 Credit Extensions............................................................... 1
2.2 Interest Rate, Payments......................................................... 2
2.3 Fees............................................................................ 3
3 CONDITIONS OF LOANS...................................................................... 3
3.1 Conditions Precedent to Initial Credit Extension................................ 3
3.2 Conditions Precedent to all Credit Extensions................................... 3
4 CREATION OF SECURITY INTEREST............................................................ 4
4.1 Grant of Security Interest...................................................... 4
5 REPRESENTATIONS AND WARRANTIES........................................................... 4
5.1 Due Organization and Authorization.............................................. 4
5.2 Collateral and Other Assets..................................................... 4
5.3 Litigation...................................................................... 4
5.4 No Material Adverse Change in Financial Statements.............................. 4
5.5 Solvency........................................................................ 5
5.6 Regulatory Compliance........................................................... 5
5.7 Subsidiaries.................................................................... 5
5.8 Full Disclosure................................................................. 5
6 AFFIRMATIVE COVENANTS.................................................................... 5
6.1 Government Compliance........................................................... 5
6.2 Financial Statements, Reports, Certificates..................................... 5
6.3 Inventory; Returns.............................................................. 6
6.4 Taxes........................................................................... 6
6.5 Insurance....................................................................... 6
6.6 Deposit/Investment Account...................................................... 6
6.7 Financial Covenants............................................................. 6
6.8 Further Assurances.............................................................. 7
7 NEGATIVE COVENANTS....................................................................... 7
7.1 Dispositions.................................................................... 7
7.2 Changes in Business, Ownership, Management or Business Locations................ 7
7.3 Mergers or Acquisitions......................................................... 7
7.4 Indebtedness.................................................................... 8
7.5 Encumbrance..................................................................... 8
7.6 Distributions; Investments...................................................... 8
7.7 Transactions with Affiliates.................................................... 8
7.8 Compliance...................................................................... 8
8 EVENTS OF DEFAULT........................................................................ 8
8.1 Payment Default................................................................. 8
8.2 Covenant Default................................................................ 8
8.3 Material Adverse Change......................................................... 9
8.4 Attachment...................................................................... 9
8.5 Insolvency...................................................................... 9
8.6 Other Agreements................................................................ 9
8.7 Judgments....................................................................... 9
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8.8 Misrepresentations.............................................................. 9
9 BANK'S RIGHTS AND REMEDIES............................................................... 9
9.1 Rights and Remedies............................................................. 9
9.2 Power of Attorney............................................................... 10
9.3 Accounts Collection............................................................. 10
9.4 Bank Expenses................................................................... 10
9.5 Bank's Liability for Collateral................................................. 11
9.6 Remedies Cumulative............................................................. 11
9.7 Demand Waiver................................................................... 11
10 NOTICES.................................................................................. 11
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER............................................... 11
12 GENERAL PROVISIONS....................................................................... 12
12.1 Successors and Assigns.......................................................... 12
12.2 Indemnification................................................................. 12
12.3 Time of Essence................................................................. 12
12.4 Severability of Provision....................................................... 12
12.5 Amendments in Writing, Integration.............................................. 12
12.6 Counterparts.................................................................... 12
12.7 Survival........................................................................ 12
12.8 Confidentiality................................................................. 13
12.9 Attorneys' Fees, Costs and Expenses............................................. 13
13 DEFINITIONS.............................................................................. 13
13.1 Definitions..................................................................... 13
ii
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated
June 16, 2003, between SILICON VALLEY BANK ("Bank"), whose address
is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with a loan production
office located at ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ and
CORILLIAN CORPORATION ("Borrower"), whose address is ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, amends and restates the Loan and Security Agreement between
the parties dated November 9, 2000 (as amended from time to time, the "Existing
Loan Agreement"), and provides the terms on which Bank will lend to Borrower and
Borrower will repay Bank. By entering into this Loan Agreement, Borrower and
Bank desire to consolidate the terms and conditions of the Existing Loan
Agreement and to enter into additional terms and conditions. Accordingly, the
parties enter into this Amended and Restated Loan Agreement. The security for
Borrower's obligations under the Existing Loan Agreement and the other documents
and instruments executed from time to time in connection therewith will continue
in effect with the same priority. The UCC-1 financing statement and any other
documents pursuant to which the Borrower has granted, evidenced or perfected a
lien or security interest to Bank will continue in full force and effect as Loan
Documents under this Loan Agreement. The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed
following GAAP. Calculations and determinations must be made following GAAP. The
term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation," in this or any Loan Document. This Agreement shall be construed to
impart upon Bank a duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
2.1 CREDIT EXTENSIONS.
Borrower will pay Bank the unpaid principal amount of all Credit
Extensions and interest on the unpaid principal amount of the Credit Extensions.
2.1.1 EXISTING EQUIPMENT ADVANCES.
(a) Pursuant to Section 2.1.2 of the Loan Agreement, Bank made the
following loans to Borrower to finance Equipment (collectively, "Existing
Equipment Advances"):
(i) A loan in the original principal amount of
$3,812,362.30 ("Existing Equipment Advance 1"). The
principal balance is $1,673,949.99 as of June 10,
2003.
(ii) A loan in the original principal amount of
$1,187,637.70 ("Existing Equipment Advance 2"). The
principal balance is $564,739.91 as of June 10, 2003.
(b) Interest accrues on the Existing Equipment Advances at the
rate in Section 2.2(a).
(c) The Existing Equipment Advances are repayable as follows:
(i) Existing Equipment Advance 1 is currently payable in
47 monthly installments of $94,421.40, each including
principal and interest, and in one final payment of
all accrued principal and accrued interest on January
1, 2005.
(ii) Existing Equipment Advance 2 is currently payable in
47 monthly installments of $28,862.62, each including
principal and interest, and in one final payment of
all accrued principal and accrued interest on March
1, 2005.
(iii) When the interest rate is reduced pursuant to Section
2.2(a), the required monthly payments on the Existing
Equipment Advances will be reduced so as to
PAGE 1 - LOAN AND SECURITY AGREEMENT
continue to the 48 month amortization schedule
established by the current payment amount.
2.1.2 EQUIPMENT ADVANCES.
(a) Through June 12, 2004 (the "Equipment Availability End Date"),
Bank will make advances ("Equipment Advance" and, collectively, "Equipment
Advances") not exceeding the Committed Equipment Line. The Equipment Advances
may be used to finance Eligible Equipment purchased within 90 days of the
Equipment Advance and may not exceed 100% of the equipment invoice excluding
taxes, shipping, warranty charges, freight discounts and installation expense.
The initial Equipment Advance of up to $1,000,000.00, if made within 30 days
after the Closing Date, may be used to finance or refinance 100% of the purchase
price of Equipment purchased on or after January 1, 2002, and need not be
accompanied by invoices. Other Equipment may constitute up to 25% of each
Equipment Advance for equipment purchased within 90 days of the date of the
Equipment Advance. Equipment Advances shall be in the minimum amount of
$250,000.
(b) Interest accrues from the date of each Equipment Advance at
the rate in Section 2.2(a) and is payable monthly until the Equipment
Availability End Date occurs. Equipment Advances outstanding on the Equipment
Availability End Date shall be repaid as follows:
(i) Prime Rate Option: If Borrower selects the
Prime-Based Rate pricing option, Borrower shall repay the amount of principal
drawn in forty-seven (47) equal monthly principal payments, and one final
payment of all outstanding principal and accrued interest. Accrued interest
shall be paid on the date of each principal payment,
(ii) Fixed Rate Option: If Borrower selects the Fixed Rate
pricing option, Borrower shall repay the amount of principal drawn in
forty-seven (47) equal monthly payments including both principal and interest,
and one final payment of all outstanding principal and accrued interest.
(c) To obtain an Equipment Advance, Borrower must notify Bank (the
notice is irrevocable) by facsimile no later than 3:00 p.m. Pacific time 1
Business Day before the day on which the Equipment Advance is to be made. The
notice in the form of Exhibit B (Payment/Advance Form) must be signed by a
Responsible Officer or designee and include a copy of the invoice for the
Equipment being financed.
(d) Bank's obligation to lend the undisbursed portion of the
Committed Equipment Line will terminate if, in Bank's sole discretion, there has
been a material adverse change in the general affairs, management, results of
operation, condition (financial or otherwise) or the prospects of Borrower,
whether or not arising from transactions in the ordinary course of business, or
there has been any material adverse deviation by Borrower from the most recent
business plan of Borrower presented to and accepted by Bank prior to the
execution of this Agreement.
2.2 INTEREST RATE, PAYMENTS.
(a) Interest Rate. Existing Equipment Advance 1 is now accruing
interest at a per annum rate of 8.59% and Existing Equipment Advance 2 is now
accruing interest at a per annum rate of 7.89%. On the date the conditions in
Section 3.1 are satisfied, the interest rate on the Existing Equipment Advances
will be reduced to 6%. Equipment Advances under the Committed Equipment Line
accrue interest at a per annum rate of .75% above the Prime Rate, subject to a
minimum of 5% ("Prime-Based Rate") until the Equipment Availability End Date.
Equipment Advances outstanding on the Equipment Availability End Date shall
thereafter bear interest at a per annum rate of (i) the Prime-Based Rate or (ii)
3.50% above the applicable rate for U.S. Treasury securities of equal maturity,
as determined by Bank, subject to a minimum of 5% ("Fixed Rate"). Borrower shall
notify Bank of the interest rate selected at least 10 days prior to the
Equipment Availability End Date and the rate selected shall apply to the entire
principal balance of the Equipment Advances. After an Event of Default,
Obligations accrue interest at 5.00% above the rate effective immediately before
the Event of Default. The interest rate increases or
PAGE 2 - LOAN AND SECURITY AGREEMENT
decreases when the Prime Rate changes. Interest is computed on a 360 day year
for the actual number of days elapsed.
(b) Payments. Principal and interest due on the Equipment Advances
are payable on the first of each month. Payments received after 12:00 noon
Pacific time are considered received at the opening of business on the next
Business Day. When a payment is due on a day that is not a Business Day, the
payment is due the next Business Day and additional fees or interest accrue.
(c) Permitted Prepayment of Loans. (i) Borrower shall have the
option to prepay the Equipment Advances and Existing Equipment Advances advanced
by Bank under this Agreement, provided Borrower (A) provides written notice to
Bank of its election to prepay the Equipment Advances or Existing Equipment
Advances at least fifteen (15) days prior to such prepayment, and (B) pays, on
the date of the prepayment (i) all accrued unpaid interest with respect to the
Equipment Advances or Existing Equipment Advances, as applicable; (ii) all sums,
if any, that shall have become due and payable hereunder with respect to this
Agreement, and (iii) if the Fixed Rate is in effect, a prepayment fee equivalent
to 3.0% of the amount prepaid in the first twelve (12) months; 2.0% of the
amount prepaid in the second twelve (12) months; and 1.0% of the amount prepaid
in the third twelve (12) months and fourth twelve (12) months.
(d) Non-Revolving Loans. Amounts repaid on the Existing Equipment
Advances and Equipment Advances may not be reborrowed.
2.3 FEES.
Borrower will pay:
(a) Loan Fee. A fully earned, non-refundable loan fee of 0.50% of
the Committed Equipment Line ($10,000).
(b) Modification Fee. A fully earned, non-refundable modification
fee for the Existing Equipment Advances in the amount of $2,500.00.
(c) Bank Expenses. All Bank Expenses (including reasonable
attorneys' fees and reasonable expenses) incurred through and after the date of
this Agreement, are payable when due. In the event of any action or proceeding
arising out of the Loan Documents, attorneys' fees shall be allocated in
accordance with Section 12.9 below.
3 CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.
Bank's obligation to make the initial Credit Extension is subject to
the condition precedent that it receive the agreements, documents and fees it
requires.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
Bank's obligations to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be
materially true on the date of the Payment/Advance Form and on the effective
date of each Credit Extension and no Event of Default may have occurred and be
continuing, or result from the Credit Extension. Each Credit Extension is
Borrower's representation and warranty on that date that the representations and
warranties of Section 5 remain true.
PAGE 3 - LOAN AND SECURITY AGREEMENT
4 CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST.
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Except for Permitted
Liens, any security interest will be a first priority security interest in the
Collateral. Bank may place a "hold" on any deposit account pledged as
Collateral. If this Agreement is terminated, Bank's lien and security interest
in the Collateral will continue until Borrower fully satisfies its Obligations.
Borrower does not grant Bank a security interest in, or lien on, its
Intellectual Property. Borrower agrees not to grant a security interest in its
Intellectual Property to any Person, or to sell, transfer, assign, mortgage,
pledge, lease or encumber such Intellectual Property, without the prior written
consent of Bank so long as this Agreement, as amended or modified, remains in
effect.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION.
Borrower and each Subsidiary is duly existing and in good standing in
its state of formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be qualified, except where the failure to do so could
not reasonably be expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it is
bound in which the default could reasonably be expected to cause a Material
Adverse Change.
5.2 COLLATERAL AND OTHER ASSETS.
Borrower has good title to the Collateral, free of Liens except
Permitted Liens. The Accounts are bona fide, existing obligations, and the
service or property has been performed or delivered to the account debtor or its
agent for immediate shipment to and unconditional acceptance by the account
debtor. All Inventory is in all material respects of good and marketable
quality, free from material defects. Borrower is the sole owner of the
Intellectual Property, except for non-exclusive licenses granted to its
customers in the ordinary course of business. Each Patent is valid and
enforceable and no part of the Intellectual Property has been judged invalid or
unenforceable, in whole or in part, and no claim has been made that any part of
the Intellectual Property violates the rights of any third party, except to the
extent such claim could not reasonably be expected to cause a Material Adverse
Change.
5.3 LITIGATION.
Except as shown in the Schedule, there are no actions or proceedings
pending or, to the knowledge of Borrower's Responsible Officers and legal
counsel, threatened by or against Borrower or any Subsidiary in which a likely
adverse decision could reasonably be expected to cause a Material Adverse
Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS.
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrower's
consolidated financial condition and Borrower's consolidated results of
operations. There has not been any material deterioration in Borrower's
consolidated financial condition since the date of the most recent financial
statements submitted to Bank.
PAGE 4 - LOAN AND SECURITY AGREEMENT
5.5 SOLVENCY.
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; the Borrower is
not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
5.6 REGULATORY COMPLIANCE.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Borrower is not engaged
as one of its important activities in extending credit for margin stock (under
Regulations T and U of the Federal Reserve Board of Governors). Borrower has
complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes,
except those being contested in good faith with adequate reserves under GAAP.
Borrower and each Subsidiary has obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 SUBSIDIARIES.
Except as shown in the Schedule, Borrower does not own any stock,
partnership interest or other equity securities except for Permitted
Investments.
5.8 FULL DISCLOSURE.
No written representation, warranty or other statement of Borrower in
any certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading. It
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results.
6 AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 GOVERNMENT COMPLIANCE.
Borrower will maintain its and all Subsidiaries' legal existence and
good standing in its jurisdiction of formation and maintain qualification in
each jurisdiction in which the failure to so qualify would reasonably be
expected to cause a material adverse effect on Borrower's business or
operations. Borrower will comply, and have each Subsidiary comply, with all
laws, ordinances and regulations to which it is subject, noncompliance with
which could have a material adverse effect on Borrower's business or operations
or would reasonably be expected to cause a Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower will deliver to Bank: (i) as soon as available, but
no later than five (5) days after filing with the Securities and Exchange
Commission, Borrower's 10-Q quarterly report and a Compliance
PAGE 5 - LOAN AND SECURITY AGREEMENT
Certificate in the form of the attached Exhibit C; (ii) as soon as available,
but no later than five (5) days after filing with the Securities and Exchange
Commission Borrower's annual 10-K report and a Compliance Certificate in the
form of the attached Exhibit C for the quarterly period then ending; (iii) as
soon as available, but no later than 120 days after the last day of Borrower's
fiscal year, audited consolidated financial statements prepared under GAAP,
consistently applied, together with an unqualified opinion on the financial
statements from an independent certified public accounting firm reasonably
acceptable to Bank; (iv) a prompt report of any legal actions pending or
threatened against Borrower or any Subsidiary that could result in damages or
costs to Borrower or any Subsidiary of $100,000 or more; and (v) budgets, sales
projections, operating plans or other financial information Bank reasonably
requests.
(b) Within five (5) days of filing with the Securities and
Exchange Commission, Borrower shall deliver copies of any filings with the
Securities and Exchange Commission not listed in 6.2(a) above.
6.3 INVENTORY; RETURNS.
Borrower will keep all Inventory in good and marketable condition, free
from material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $100,000.
6.4 TAXES.
Borrower will make, and cause each Subsidiary to make, timely payment
of all material federal, state, and local taxes or assessments and will deliver
to Bank, on demand, appropriate certificates attesting to the payment.
6.5 INSURANCE.
Borrower will keep its business and the Collateral insured for risks
and in amounts, as Bank may reasonably request. Insurance policies will be in a
form, with companies, and in amounts that are satisfactory to Bank in Bank's
reasonable discretion. All property policies will have a lender's loss payable
endorsement showing Bank as an additional loss payee and all liability policies
will show the Bank as an additional insured and provide that the insurer must
give Bank at least 20 days notice before canceling its policy. At Bank's
request, Borrower will deliver certified copies of policies and evidence of all
premium payments. Proceeds payable under any policy will, at Bank's option, be
payable to Bank on account of the Obligations.
6.6 DEPOSIT/INVESTMENT ACCOUNT.
Borrower will exercise its best efforts to maintain an investment
account with Bank and/or Bank's broker/dealer SVB Securities, with a fair market
value, as determined by Bank of at least $10,000,000.00. Failure to maintain
such an account shall not constitute an Event of Default.
6.7 FINANCIAL COVENANTS.
Borrower will maintain as of the last day of each quarter:
(i) Adjusted Quick Ratio. A ratio of Quick Assets to Current
Liabilities, less deferred revenue plus the long-term portion
of all outstanding Existing Equipment Advances and Equipment
Advances, of at least 1.50 to 1.00. Upon Borrower maintaining
a Debt Service Coverage Ratio of 2.00 to 1.00 for two
consecutive quarters, the long-term portion of all Existing
Equipment Advances and Equipment Advances will be eliminated
from the calculation of the Adjusted Quick Ratio.
Concurrently, Borrower shall comply with the Debt Service
Coverage Ratio covenant as defined below.
PAGE 6 - LOAN AND SECURITY AGREEMENT
(ii) Tangible Net Worth. A Tangible Net Worth of at least
$10,000,000 plus 50% of new equity for the quarter ending June
30, 2003 and for each quarter ending thereafter.
(iii) Debt Service Coverage Ratio. If required by Section 6.7(i), A
ratio of quarterly net income plus interest expenses,
depreciation and amortization for the quarter to the sum of
interest expenses for the quarter plus 25% of current
maturities of long term debt ("Debt Service Coverage Ratio")
of at least 2.00 to 1.00.
(iv) Deposit. Borrower shall maintain a certificate of deposit to
be held on account with Bank or investments to be held through
Bank in a minimum principal amount equivalent to 100% of the
aggregate outstanding Obligations at such time as Borrower
fails to meet any financial covenants or conditions set forth
in Section 6.7 of this Agreement and until such time as
Borrower restores and maintains compliance with the terms of
this Agreement. Provided Borrower maintains such certificate
of deposit held on account with Bank or investments to be held
through Bank, it shall not be deemed an Event of Default if
Borrower does not comply with any financial covenant set forth
in Section 6.7 of this Agreement.
6.8 FURTHER ASSURANCES.
Borrower will execute any further instruments and take further action
as Bank reasonably requests to perfect or continue Bank's security interest in
the Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
Borrower will not do any of the following without Bank's prior written
consent, which will not be unreasonably withheld:
7.1 DISPOSITIONS.
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its Subsidiaries to Transfer, all or any part of
its business or property, other than Transfers (i) of Inventory in the ordinary
course of business; (ii) of non-exclusive licenses and similar arrangements for
the use of the property of Borrower or its Subsidiaries in the ordinary course
of business; or (iii) of worn-out or obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS.
Engage in or permit any of its Subsidiaries to engage in any business
other than the businesses currently engaged in by Borrower or reasonably related
thereto or have a material change in its ownership or management (other than the
sale of Borrower's equity securities in a public offering or to venture capital
investors approved by Bank) of greater than 25%. Borrower will not, without at
least 30 days prior written notice, relocate its chief executive office or add
any new offices or business locations.
7.3 MERGERS OR ACQUISITIONS.
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person, except where (i) no Event of Default has occurred
and is continuing or would result from such action during the term of this
Agreement and (ii) such transaction would not result in a decrease of more than
25% of Tangible Net Worth. A Subsidiary may merge or consolidate into another
Subsidiary or into Borrower.
PAGE 7 - LOAN AND SECURITY AGREEMENT
7.4 INDEBTEDNESS.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 ENCUMBRANCE.
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
here, subject to Permitted Liens.
7.6 DISTRIBUTIONS; INVESTMENTS.
Directly or indirectly acquire or own any Person, or make any
Investment in any Person, other than Permitted Investments, or permit any of its
Subsidiaries to do so. Pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock.
7.7 TRANSACTIONS WITH AFFILIATES.
Directly or indirectly enter into or permit any material transaction
with any Affiliate except transactions that are in the ordinary course of
Borrower's business, on terms less favorable to Borrower than would be obtained
in an arm's length transaction with a non-affiliated Person.
7.8 COMPLIANCE.
Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of 1940 or undertake as
one of its important activities extending credit to purchase or carry margin
stock, or use the proceeds of any Credit Extension for that purpose; fail to
meet the minimum funding requirements of ERISA, permit a Reportable Event or
Prohibited Transaction, as defined in ERISA, to occur; fail to comply with the
Federal Fair Labor Standards Act or violate any other law or regulation, if the
violation could reasonably be expected to have a material adverse effect on
Borrower's business or operations or would reasonably be expected to cause a
Material Adverse Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT.
If Borrower fails to pay any of the Obligations within 3 days after
their due date. During the additional period the failure to cure the default is
not an Event of Default (but no Credit Extension will be made during the cure
period);
8.2 COVENANT DEFAULT.
If Borrower violates any covenant in Section 7 or does not perform or
observe any other material term, condition or covenant in this Agreement, any
Loan Documents, or in any agreement between Borrower and Bank and as to any
default under a term, condition or covenant that can be cured, has not cured the
default within 10 days after it occurs, or if the default cannot be cured within
10 days or cannot be cured after Borrower's attempts within 10 day period, and
the default may be cured within a reasonable time, then Borrower has an
additional period (of not more than 30 days) to attempt to cure the default.
During the additional time, the failure to cure the default is not an Event of
Default (but no Credit Extensions will be made during the cure period);
PAGE 8 - LOAN AND SECURITY AGREEMENT
8.3 MATERIAL ADVERSE CHANGE.
If there (i) occurs a material impairment in the perfection or priority
of the Bank's security interest in the Collateral or in the value of such
Collateral which is not covered by adequate insurance or (ii) is a material
impairment of the prospect of repayment of any portion of the Obligations.
8.4 ATTACHMENT.
If any material portion of Borrower's assets is attached, seized,
levied on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days, or if Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business or if a judgment or other claim becomes a Lien on a material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed against
any of Borrower's assets by any government agency and not paid within 10 days
after Borrower receives notice. These are not Events of Default if stayed or if
a bond is posted pending contest by Borrower (but no Credit Extensions will be
made during the cure period);
8.5 INSOLVENCY.
If Borrower becomes insolvent or if Borrower begins an Insolvency
Proceeding or an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 30 days (but no Credit Extensions will be made before
any Insolvency Proceeding is dismissed);
8.6 OTHER AGREEMENTS.
If there is a default in any agreement between Borrower and a third
party that gives the third party the right to accelerate any Indebtedness
exceeding $100,000 or that could cause a Material Adverse Change;
8.7 JUDGMENTS.
If a money judgment(s) in the aggregate of at least $50,000 is rendered
against Borrower and is unsatisfied and unstayed for 10 days (but no Credit
Extensions will be made before the judgment is stayed or satisfied); or
8.8 MISREPRESENTATIONS.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any writing delivered to Bank or to
induce Bank to enter this Agreement or any Loan Document.
9 BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES.
When an Event of Default occurs and continues Bank may, without notice
or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are immediately
due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's
benefit under this Agreement or under any other agreement between Borrower and
Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, on terms and in any order that Bank considers advisable;
PAGE 9 - LOAN AND SECURITY AGREEMENT
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower will
assemble the Collateral if Bank requires and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security
interest and pay all expenses incurred. Borrower grants Bank a license to enter
and occupy any of its premises, without charge, to exercise any of Bank's rights
or remedies;
(e) Apply to the Obligations any (i) balances and deposits of
Borrower it holds, or (ii) any amount held by Bank owing to or for the credit or
the account of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell the Collateral. Bank is granted a
non-exclusive, royalty-free license or other right to use, without charge,
Borrower's labels, Patents, Copyrights, Mask Works, rights of use of any name,
trade secrets, trade names, Trademarks, service marks, and advertising matter,
or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section, Borrower's
rights under all licenses and all franchise agreements inure to Bank's benefit;
and
(g) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY.
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or ▇▇▇▇ of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly
with account debtors, for amounts and on terms Bank determines reasonable; and
(v) transfer the Collateral into the name of Bank or a third party as the Code
permits. Bank may exercise the power of attorney to sign Borrower's name on any
documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrower's attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 ACCOUNTS COLLECTION.
When an Event of Default occurs and continues, Bank may notify any
Person owing Borrower money of Bank's security interest in the funds and verify
the amount of the Account. Borrower must collect all payments in trust for Bank
and, if requested by Bank, immediately deliver the payments to Bank in the form
received from the account debtor, with proper endorsements for deposit.
9.4 BANK EXPENSES.
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons, Bank may make all or part of the payment or obtain
insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to make
similar payments in the future or Bank's waiver of any Event of Default.
Pursuant to ORS 746.201, following is a statutory notice regarding insurance
coverage:
WARNING
PAGE 10 - LOAN AND SECURITY AGREEMENT
Unless you provide us with evidence of the insurance coverage
as required by our contract or loan agreement, we may purchase
insurance at your expense to protect our interest. This insurance may,
but need not, also protect your interest. If the collateral becomes
damaged, the coverage we purchase may not pay any claim you make or any
claim made against you. You may later cancel this coverage by providing
evidence that you have obtained property coverage elsewhere.
You are responsible for the cost of any insurance purchased by
us. The cost of this insurance may be added to your contract or loan
balance. If the cost is added to your contract or loan balance, the
interest rate on the underlying contract or loan will apply to this
added amount. The effective date of coverage may be the date your prior
coverage lapsed or the date you failed to provide proof of coverage.
The coverage we purchase may be considerably more expensive
than insurance you can obtain on your own and may not satisfy any need
for property damage coverage or any mandatory liability insurance
requirements imposed by applicable law.
9.5 BANK'S LIABILITY FOR COLLATERAL.
If Bank complies with reasonable banking practices and Section 9-207 of
the Code, it is not liable for: (a) the safekeeping of the Collateral; (b) any
loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or
other person. Borrower bears all risk of loss, damage or destruction of the
Collateral.
9.6 REMEDIES CUMULATIVE.
Bank's rights and remedies under this Agreement, the Loan Documents,
and all other agreements are cumulative. Bank has all rights and remedies
provided under the Code, by law, or in equity. Bank's exercise of one right or
remedy is not an election, and Bank's waiver of any Event of Default is not a
continuing waiver. Bank's delay is not a waiver, election, or acquiescence. No
waiver is effective unless signed by Bank and then is only effective for the
specific instance and purpose for which it was given.
9.7 DEMAND WAIVER.
Borrower waives demand, notice of default or dishonor, notice of
payment and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
10 NOTICES
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by telefacsimile to the addresses set forth at the beginning of
this Agreement. A party may change its notice address by giving the other party
written notice.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Oregon law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Multnomah County, Oregon.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS.
PAGE 11 - LOAN AND SECURITY AGREEMENT
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE BANK
AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT
FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY US TO BE
ENFORCEABLE.
12 GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS.
This Agreement binds and is for the benefit of the successors and
permitted assigns of each party. Borrower may not assign this Agreement or any
rights under it without Bank's prior written consent which may be granted or
withheld in Bank's discretion. Bank has the right, without the consent of or
notice to Borrower, to sell, transfer, negotiate, or grant participation in all
or any part of, or any interest in, Bank's obligations, rights and benefits
under this Agreement.
12.2 INDEMNIFICATION.
Borrower will indemnify, defend and hold harmless Bank and its
officers, employees, and agents against: (a) all obligations, demands, claims,
and liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 TIME OF ESSENCE.
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 SEVERABILITY OF PROVISION.
Each provision of this Agreement is severable from every other
provision in determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION.
All amendments to this Agreement must be in writing and signed by
Borrower and Bank. This Agreement represents the entire agreement about this
subject matter, and supersedes prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this Agreement merge into this
Agreement and the Loan Documents.
12.6 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 SURVIVAL.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.
PAGE 12 - LOAN AND SECURITY AGREEMENT
12.8 CONFIDENTIALITY.
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, but
disclosure of information may be made (i) to Bank's subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the loans, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with Bank's
examination or audit and (v) as Bank considers appropriate exercising remedies
under this Agreement. Confidential information does not include information that
either: (a) is in the public domain or in Bank's possession when disclosed to
Bank, or becomes part of the public domain after disclosure to Bank; or (b) is
disclosed to Bank by a third party, if Bank does not know that the third party
is prohibited from disclosing the information.
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES.
In any action or proceeding between Borrower and Bank arising out of
the Loan Documents, the prevailing party will be entitled to recover its
reasonable attorneys' fees and other reasonable costs and expenses incurred, in
addition to any other relief to which it may be entitled.
13 DEFINITIONS
13.1 DEFINITIONS.
In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract
rights, and other obligations owed Borrower in connection with its sale or lease
of goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs
and expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"BORROWER'S BOOKS" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Oregon Uniform Commercial Code, as adopted by the State
of Oregon, as it may be amended and in effect from time to time.
"COLLATERAL" is the property described on Exhibit A.
"COMMITTED EQUIPMENT LINE" is a Credit Extension of up to $2,000,000.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as
PAGE 13 - LOAN AND SECURITY AGREEMENT
an obligation directly or indirectly guaranteed, endorsed, co-made, discounted
or sold with recourse by that Person, or for which that Person is directly or
indirectly liable; (ii) any obligations for undrawn letters of credit for the
account of that Person; and (iii) all obligations from any interest rate,
currency or commodity swap agreement, interest rate cap or collar agreement, or
other agreement or arrangement designated to protect a Person against
fluctuation in interest rates, currency exchange rates or commodity prices; but
"Contingent Obligation" does not include endorsements in the ordinary course of
business. The amount of a Contingent Obligation is the stated or determined
amount of the primary obligation for which the Contingent Obligation is made or,
if not determinable, the maximum reasonably anticipated liability for it
determined by the Person in good faith; but the amount may not exceed the
maximum of the obligations under the guarantee or other support arrangement.
"COPYRIGHTS" are all copyright rights, applications or registrations
and like protections in each work or authorship or derivative work, whether
published or not (whether or not it is a trade secret) now or later existing,
created, acquired or held.
"CREDIT EXTENSION" is an Existing Equipment Advance, Equipment Advance,
or any other extension of credit by Bank for Borrower's benefit.
"DEBT SERVICE COVERAGE RATIO" is defined in Section 6.7(iii).
"ELIGIBLE EQUIPMENT" is general purpose computer equipment, office
equipment, test and laboratory equipment, furnishings, and, subject to the
limitations set forth below, Other Equipment that complies with all of
Borrower's representations and warranties to Bank and which is acceptable to
Bank in all respects. All Equipment financed with the proceeds of Equipment
Advances may be new or used equipment.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"EQUIPMENT ADVANCE" is defined in Section 2.1.2.
"EQUIPMENT AVAILABILITY END DATE" is defined in Section 2.1.2.
"ERISA" is the Employment Retirement Income Security Act of 1974, and
its regulations.
"EXISTING EQUIPMENT ADVANCE" is defined in Section 2.1.1.
"EXISTING EQUIPMENT ADVANCE 1" is defined in Section 2.1.1.
"EXISTING EQUIPMENT ADVANCE 2" is defined in Section 2.1.1.
"EXISTING LOAN AGREEMENT" is defined in the Preamble.
"FIXED RATE" is defined in Section 2.3(a).
"FUNDING DATE" is any date on which an Equipment Advance is made to or
on account of Borrower.
"GAAP" is generally accepted accounting principles.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
PAGE 14 - LOAN AND SECURITY AGREEMENT
"INSOLVENCY PROCEEDING" are proceedings by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is defined in the attached Exhibit A.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes
or guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including cash management services,
letters of credit and foreign exchange contracts, if any and including interest
accruing after Insolvency Proceedings begin and debts, liabilities, or
obligations of Borrower assigned to Bank.
"OTHER EQUIPMENT" is leasehold improvements, intangible property such
as computer software and transferable software licenses, other soft costs,
including sales tax, freight, and installation expense, equipment specifically
designed or manufactured for Borrower, other intangible property, limited use
property and other similar property. Unless otherwise agreed to by Bank: not
more than 25% of the Equipment financed with the proceeds of each Equipment
Advance shall consist of Other Equipment.
"PATENTS" are patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues, extensions
and continuations-in-part of the same.
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's indebtedness to Bank under this Agreement or any
other Loan Document;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Indebtedness to trade creditors incurred in the ordinary
course of business; and
(d) Indebtedness secured by Permitted Liens.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Schedule and existing on the Closing
Date; and
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any State maturing within 1
year from its acquisition, (ii) commercial paper
PAGE 15 - LOAN AND SECURITY AGREEMENT
maturing no more than 1 year after its creation and having the highest rating
from either Standard & Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc.,
and (iii) Bank's certificates of deposit issued maturing no more than 1 year
after issue.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule
or arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges
or levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by
Borrower or its Subsidiaries incurred for financing the acquisition of the
Equipment, or (ii) existing on equipment when acquired, if the Lien is confined
to the property and improvements and the proceeds of the equipment;
(d) Licenses or sublicenses granted in the ordinary course of
Borrower's business and any interest or title of a licensor or under any license
or sublicense, if the licenses and sublicenses permit granting Bank a security
interest;
(e) Leases or subleases granted in the ordinary course of
Borrower's business, including in connection with Borrower's leased premises or
leased property;
(f) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
"PRIME-BASED RATE" is defined in Section 2.3(a).
"PRIME RATE" is Bank's most recently announced "prime rate," even if it
is not Bank's lowest rate.
"QUICK ASSETS" is on any date, the Borrower's consolidated,
unrestricted cash, cash equivalents, net billed accounts receivable and
investments with maturities of fewer than 12 months determined according to
GAAP.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"SCHEDULE" is any attached schedule of exceptions.
"SUBSIDIARY" is for any Person, or any other business entity of which
more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
"TANGIBLE NET WORTH" is, on any date, the total assets of Borrower
minus (i) any amounts attributable to (a) goodwill, (b) intangible items such as
amortized debt discount and expense, Patents, trade and service marks and names,
Copyrights and research and development expenses except prepaid expenses, (c)
all investments and all loans in Subsidiaries, and (d) reserves not already
deducted from asset, and (ii) Total Liabilities.
PAGE 16 - LOAN AND SECURITY AGREEMENT
"TOTAL LIABILITIES" is on any day, obligations that should, under GAAP,
be classified as liabilities on Borrower's consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
"TRADEMARKS" are trademark and servicemark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of Assignor connected with the trademarks.
BORROWER:
CORILLIAN CORPORATION
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
BANK:
SILICON VALLEY BANK
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
PAGE 17 - LOAN AND SECURITY AGREEMENT
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, certificates of deposit, instruments and chattel paper now
owned or hereafter acquired and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registration
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; all trade
secret rights, including all rights to unpatented inventions, know-how,
operating manuals, license rights and agreements and confidential information,
now owned or hereafter acquired; all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter acquired; all
claims for damages by way of any past, present and future infringement of any of
the foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
Borrower has agreed not to sell, transfer, assign, mortgage, pledge,
lease, grant a security interest in, or encumber any of its Intellectual
Property, as defined below, without Bank's prior written consent.
Notwithstanding the foregoing, the Collateral shall not be deemed to
include any (i) software, documentation, manuals or other works of authorship,
ideas, inventions, processes, designs, trademarks, technology, information, and
materials created, written or developed by Borrower, either before or after the
date of this Agreement; or (ii) any intellectual property rights associated with
such works, including without limitation patents, patent rights, copyrights,
trademark rights, trade secret rights, trade dress rights, and all rights to
use, execute, reproduce, display, perform, distribute copies of, modify and
prepare derivative works based on such works (collectively, the "Intellectual
Property"), except that the Collateral shall include the proceeds of all the
Intellectual Property that are accounts (i.e. accounts receivable) of Borrower,
or general intangibles consisting of rights to payment, if a judicial authority
(including a U.S.
PAGE1 - EXHIBIT A
Bankruptcy Court) holds that a security interest in the underlying Intellectual
Property is necessary to have a security interest in such accounts and general
intangibles of Borrower that are proceeds of the Intellectual Property, then the
Collateral shall automatically, and effective as of the Closing Date, include
the Intellectual Property to the extent necessary to permit perfection of Bank's
security interest in such accounts and general intangibles of Borrower that are
proceeds of the Intellectual Property.
PAGE 2 - EXHIBIT A
EXHIBIT B
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE: _______________________
FAX#: (▇▇▇)▇▇▇-▇▇▇▇ TIME: _______________________
FROM: CORILLIAN CORPORATION
--------------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY: _______________________________________________________________
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE: __________________________________________________________
PHONE NUMBER:___________________________________________________________________
FROM ACCOUNT #__________________ TO ACCOUNT #___________________________________
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
PRINCIPAL INCREASE (ADVANCE) $___________________________________
PRINCIPAL PAYMENT (ONLY) $___________________________________
INTEREST PAYMENT (ONLY) $___________________________________
PRINCIPAL AND INTEREST (PAYMENT) $___________________________________
OTHER INSTRUCTIONS:____________________________________________
All Borrower's representations and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects on the date of the
telephone request for and Advance confirmed by this Borrowing Certificate; but
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of that date.
BANK USE ONLY
TELEPHONE REQUEST:
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
_______________________________________ ______________________________
Authorized Requester Phone #
_______________________________________ ______________________________
Received By (Bank) Phone #
___________________________
Authorized Signature (Bank)
PAGE 1 - EXHIBIT B
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FROM: CORILLIAN CORPORATION
The undersigned authorized officer of Corillian Corporation
("Borrower") certifies that under the terms and conditions of the Amended and
Restated Loan and Security Agreement between Borrower and Bank (the
"Agreement"), (i) Borrower is in complete compliance for the period
ending______________________________ with all required covenants except as noted
below and (ii) all representations and warranties in the Agreement are true and
correct in all material respects on this date. Attached are the required
documents supporting the certification. The Officer certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP)
consistently applied from one period to the next except as explained in an
accompanying letter or footnotes. The Officer acknowledges that no borrowings
may be requested at any time or date of determination that Borrower is not in
compliance with any of the terms of the Agreement, and that compliance is
determined not just at the date this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- ------------
Annual (Audited) financial statements FYE within 120 days Yes No
Quarterly 10Q report & CC Quarterly within 5 days of filing Yes No
Annual 10K report & CC Annually within 5 days of filing Yes No
All other SEC filings than 10Q& 10K Within 5 days of filing Yes No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Maintain on a Quarterly Basis:
Minimum Quick Ratio (Adjusted) 1.50:1 .00(1)
____:1.00 Yes No
____:1.00 Yes No
Minimum Tangible Net Worth $10,000,000 plus 50% of
new equity
$________ Yes No
Minimum Debt Service Coverage Ratio 2.00:1.00(2) ____:1.00 Yes No
Borrower only has deposit accounts located at the following
institutions:._____________________
------------------
1. Once Borrower has maintained a Debt Service Coverage Ratio of 2.00 to
1.00 for two consecutive quarters, the Adjusted Quick Ratio will be amended to
eliminate the long-term portion of all Existing Equipment Advances and Equipment
Advances. Concurrently, a Debt Service Coverage Ratio covenant of 2.00 to 1.00
will be implemented.
PAGE 1 - SCHEDULE
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
CORILLIAN CORPORATION
____________________________________________
SIGNATURE
____________________________________________
TITLE
____________________________________________
DATE
BANK USE ONLY
Received by:________________________________
AUTHORIZED SIGNER
Date:_______________________________________
Verified:___________________________________
AUTHORIZED SIGNER
Date:_______________________________________
Compliance Status: Yes No
PAGE 2 - SCHEDULE