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AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
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TABLE OF CONTENTS
Page
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1 ACCOUNTING AND OTHER TERMS...............................................................................4
2 LOAN AND TERMS OF PAYMENT................................................................................4
2.1 Credit Extensions...............................................................................4
2.2 Overadvances....................................................................................5
2.3 Interest Rate, Payments.........................................................................5
2.4 Fees............................................................................................7
3 CONDITIONS OF LOANS......................................................................................7
3.1 Conditions Precedent to Credit Extension........................................................7
3.2 Conditions Precedent to all Credit Extensions...................................................7
4 CREATION OF SECURITY INTEREST............................................................................7
4.1 Grant of Security Interest......................................................................7
5 REPRESENTATIONS AND WARRANTIES...........................................................................8
5.1 Due Organization and Authorization..............................................................8
5.2 Collateral......................................................................................8
5.3 Litigation......................................................................................8
5.4 No Material Adverse Change in Financial Statements..............................................8
5.5 Solvency........................................................................................8
5.6 Regulatory Compliance...........................................................................8
5.7 Subsidiaries....................................................................................9
5.8 Full Disclosure.................................................................................9
6 AFFIRMATIVE COVENANTS....................................................................................9
6.1 Government Compliance...........................................................................9
6.2 Financial Statements, Reports, Certificates.....................................................9
6.3 Inventory; Returns.............................................................................10
6.4 Taxes..........................................................................................10
6.5 Insurance......................................................................................10
6.6 Primary Accounts...............................................................................10
6.7 Financial Covenants............................................................................10
6.8 Registration of Intellectual Property Rights...................................................11
6.9 Loss; Destruction; or Damage...................................................................11
6.10 Further Assurances.............................................................................11
7 NEGATIVE COVENANTS......................................................................................11
7.1 Dispositions...................................................................................11
7.2 Changes in Business, Ownership, Management or Business Locations...............................12
7.3 Mergers or Acquisitions........................................................................12
7.4 Indebtedness...................................................................................12
7.5 Encumbrance....................................................................................12
7.6 Distributions; Investments.....................................................................12
7.7 Transactions with Affiliates...................................................................12
7.8 Subordinated Debt..............................................................................12
7.9 Compliance.....................................................................................12
8 EVENTS OF DEFAULT.......................................................................................13
8.1 Payment Default................................................................................13
8.2 Covenant Default...............................................................................13
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8.3 Material Adverse Change........................................................................13
8.4 Attachment.....................................................................................13
8.5 Insolvency.....................................................................................13
8.6 Other Agreements...............................................................................14
8.7 Judgments......................................................................................14
8.8 Misrepresentations.............................................................................14
9 BANK'S RIGHTS AND REMEDIES..............................................................................14
9.1 Rights and Remedies............................................................................14
9.2 Power of Attorney..............................................................................15
9.3 Accounts Collection............................................................................15
9.4 Bank Expenses..................................................................................15
9.5 Bank's Liability for Collateral................................................................15
9.6 Remedies Cumulative............................................................................15
9.7 Demand Waiver..................................................................................15
10 NOTICES.................................................................................................15
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER..............................................................16
12 GENERAL PROVISIONS......................................................................................16
12.1 Successors and Assigns.........................................................................16
12.2 Indemnification................................................................................16
12.3 Time of Essence................................................................................16
12.4 Severability of Provision......................................................................16
12.5 Amendments in Writing, Integration.............................................................16
12.6 Counterparts...................................................................................16
12.7 Survival.......................................................................................17
12.8 Confidentiality................................................................................17
12.9 Effect of Amendment and Restatement............................................................17
12.10 Attorneys' Fees, Costs and Expenses............................................................17
13 DEFINITIONS.............................................................................................17
13.1 Definitions....................................................................................17
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THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated March 1,
2000, between SILICON VALLEY BANK ("Bank"), whose address is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED, formerly
known as HOMESTEAD TECHNOLOGIES INC. formerly known as KARTOFFELSOFT
INCORPORATED ("Borrower"), whose address is ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
RECITALS
A. Bank and Borrower are parties to that certain QuickStart Loan
and Security Agreement dated July 13, 1998, as amended (collectively, the
"Original Agreement").
B. Borrower and Bank desire in this Agreement to set forth their
agreement with respect to a working capital, equipment line and term loan and
to amend and restate in its entirety without novation the Original Agreement
in accordance with the provisions herein. This Agreement shall be construed
to impart upon Bank a duty to act reasonably at all times.
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.
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 REVOLVING ADVANCES.
(a) Bank will make Advances not exceeding the lesser of (A) the
Committed Revolving Line or (B) the Borrowing Base. Amounts borrowed under
this Section may be repaid and reborrowed during the term of this Agreement.
(b) To obtain an Advance, Borrower must notify Bank by facsimile or
telephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be
made. Borrower must promptly confirm the notification by delivering to Bank
the Payment/Advance Form attached as Exhibit B. Bank will credit Advances to
Borrower's deposit account. Bank may make Advances under this Agreement based
on instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have
become due. Bank may rely on any telephone notice given by a person whom Bank
believes is a Responsible Officer or designee. Borrower will indemnify Bank
for any loss Bank suffers due to such reliance.
(c) The Committed Revolving Line terminates on the Revolving
Maturity Date, when all Advances are immediately payable.
2.1.2 EQUIPMENT ADVANCES.
(a) Subject to the terms and conditions of this Agreement, Bank
agrees to lend to Borrower, from time to time prior to the Commitment
Termination Date, equipment advances (each an "Equipment
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Advance" and collectively the "Equipment Advances") in an aggregate amount
not to exceed the Committed Equipment Line. When repaid, the Equipment
Advances may not be re-borrowed. The proceeds of the Equipment Advances will
be used solely to reimburse Borrower for the purchase of Eligible Equipment
purchased within 90 days of the Closing Date. Each Equipment Advance shall be
considered a promissory note evidencing the amounts due hereunder for all
purposes. Bank's obligation to lend hereunder shall terminate on the earlier
of (i) the occurrence and continuance of an Event of Default, or (ii) the
Commitment Termination Date. For purposes of this Section, the minimum amount
of each Equipment Advance is $75,000 and the maximum number of Equipment
Advances that will be made is 5.
(b) To obtain an Equipment Advance, Borrower will deliver to Bank a
completed supplement in substantially the form attached as Exhibit E ("Loan
Supplement"), copies of invoices for the Financed Equipment and such
additional information as Bank may request at least five (5) Business Days
before the proposed funding date (the "Funding Date"). On each Funding Date,
Bank will specify in the Loan Supplement for each Equipment Advance, the
Basic Rate, the Loan Factor, and the Payment Dates. If Borrower satisfies the
conditions of each Equipment Advance specified herein, Bank will disburse
such Equipment Advance by internal transfer to Borrower's deposit account
with Bank. Each Equipment Advance may not exceed 100% of the Original Stated
Cost.
(c) 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.
2.1.3 TERM LOAN.
(a) Bank will continue to make a Term Loan available to Borrower.
(b) Borrower will pay 24 equal installments of principal of
$13,004.56 plus Interest (the "Term Loan Payment"). Each Term Loan Payment is
payable on the 25th of each month during the term of the loan. Borrower's
final Term Loan Payment, due on January 25, 2002, includes all outstanding
Term Loan principal and accrued interest.
2.2 OVERADVANCES.
If Borrower's Obligations under Section 2.1.1 exceed the lesser of
either (i) the Committed Revolving Line or (ii) the Borrowing Base, Borrower
must immediately pay Bank the excess.
2.3 INTEREST RATE, PAYMENTS.
AS TO ADVANCES.
(a) Interest Rate. Advances accrue interest on the outstanding
principal balance at a per annum rate of 1.0 percentage point above the Prime
Rate. After an Event of Default, Obligations accrue interest at 5 percent
above the rate effective immediately before the Event of Default. The interest
rate increases or decreases when the Prime Rate changes. Interest is computed
on a 360 day year for the actual number of days elapsed.
(b) Payments. Interest due on the Committed Revolving Line is
payable on the 9th day of each month.
AS TO EQUIPMENT ADVANCES.
(a) Principal and Interest Payments On Payment Dates. Borrower will
repay the Equipment Advances on the terms provided in the Loan Supplement.
Borrower will make payments monthly in
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advance of principal and accrued interest for each Equipment Advance
(collectively, "Scheduled Payments"), on the first Business Day of the month
following the Funding Date (or commencing on the Funding Date if the Funding
Date is the first Business Day of the month) with respect to such Equipment
Advance and continuing thereafter during the Repayment Period on the first
Business Day of each calendar month (each a "Payment Date"), in an amount
equal to the Loan Factor multiplied by the Loan Amount for such Equipment
Advance as of such Payment Date. All unpaid principal and accrued interest is
due and payable in full on the last Payment Date with respect to such
Equipment Advance. Payments received after 12:00 noon Pacific time are
considered received at the opening of business on the next Business Day. An
Equipment Advance may only be prepaid in accordance with Sections 2.3 (e) and
2.3 (g).
(b) Interest Rate. Borrower will pay interest on the Payment Dates
(as described above) at the per annum rate of interest equal to the Basic
Rate determined by Bank as of the Funding Date for each Equipment Advance in
accordance with the definition of the Basic Rate. Any amounts outstanding
during the continuance of an Event of Default shall bear interest at a per
annum rate equal to the Basic Rate plus five percent (5%). If any change in
the law increases Bank's expenses or decreases its return from the Equipment
Advances, Borrower will pay Bank upon request the amount of such increase or
decrease.
(c) Interim Payment. In addition to the Scheduled Payments, on the
Funding Date for each Equipment Advance (unless the Funding Date is the first
Business Day of the month) Borrower shall pay to Bank, on behalf of Bank, the
projected interest to accrue from the Funding Date to the first Payment Date,
pursuant to paragraph "(b)" of this Section.
(d) Final Payment. On the Maturity Date with respect to each
Equipment Advance, Borrower will pay, in addition to the unpaid principal and
accrued interest and all other amounts due on such date with respect to such
Equipment Advance, an amount equal to the Final Payment.
(e) Prepayment Upon an Event of Loss. If any Financed Equipment is
subject to an Event of Loss as defined in Section 6.9 and Borrower is
required to or elects to prepay the Equipment Advance with respect to such
Financed Equipment pursuant to Section 6.9, then such Equipment Advance shall
be prepaid to the extent and in the manner provided in such section.
(f) Mandatory Prepayment Upon an Acceleration. If the Equipment
Advances are accelerated following the occurrence of an Event of Default or
otherwise (other than following an Event of Loss), then Borrower will
immediately pay to Bank (i) all unpaid Scheduled Payments (including
principal and interest) with respect to each Equipment Advance, (ii) all
remaining Scheduled Payments (including principal and interest unpaid) (iii)
all accrued unpaid interest, including the default rate of interest, to the
date of the prepayment, (iv) the Final Payment and (v) all other sums, if
any, that shall have become due and payable with respect to any Equipment
Advance.
(g) Permitted Prepayment of Loans. Borrower shall have the option to
prepay all, but not less than all, of the Equipment Advances advanced by Bank
under this Agreement, PROVIDED Borrower (i) provides written notice to Bank
of its election to prepay the Equipment Advances at least thirty (30) days
prior to such prepayment, and (ii) pays, on the date of the prepayment (A)
all unpaid Scheduled Payments (including principal and interest) with respect
to each Equipment Advance; (B) all remaining Scheduled Payments (including
principal and interest); (C) all unpaid accrued interest to the date of the
prepayment; (D) the Final Payment; and (E) all other sums, if any, that shall
have become due and payable hereunder with respect to this Agreement.
AS TO TERM LOAN.
(a) Interest Rate. (i) Term Loan accrue interest at a per annum rate
equal to the Prime Rate. After an Event of Default, the Obligations accrue
interest at 5 percent above the rate effective immediately before the Event
of Default. The interest rate increases or decreases when the Prime Rate
changes. Interest is computed on a 360 day year for the actual number of days
elapsed.
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2.3.2 REQUEST TO DEBIT ACCOUNTS.
Bank may debit any of Borrower's deposit accounts including Account
Number 3300123800 for principal and interest payments or any amounts Borrower
owes Bank when due. Bank will notify Borrower when it debits Borrower's
accounts. These debits are not a set-off.
2.4 FEES.
Borrower will pay:
(a) Facility Fee. A fully earned, non-refundable Facility Fee of
$7,500 for the Committed Revolving Line due on the Closing Date;
(b) 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; and
(c) Good Faith Deposit. Borrower has paid to Bank a Good Faith
Deposit of $2,500 to initiate Banks due diligence review process.
3 CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO 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 and a satisfactory Collateral audit. The initial Credit Extension
shall be an Advance to pay off Borrower's loan #▇▇▇▇▇▇▇▇▇▇ with Bank, subject
to the terms and conditions of this Agreement.
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.
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.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
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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 cause reasonably be
expected to cause a Material Adverse Change.
5.2 COLLATERAL.
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. Borrower has no notice of any actual or imminent Insolvency
Proceeding of any account debtor whose accounts are an Eligible Account in
any Borrowing Base Certificate. 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.
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
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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.
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 30 days after the last day of each month, a company prepared
consolidated balance sheet and income statement covering Borrower's
consolidated operations during the period, in a form and certified by a
Responsible Officer acceptable to Bank; (ii) as soon as available, but no
later than 90 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;
(iii) 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; (iv) budgets, sales projections,
operating plans or other financial information Bank reasonably requests; and
(v) prompt notice of any material change in the composition of the
Intellectual Property, including any subsequent ownership right of Borrower
in or to any Copyright, Patent or Trademark not shown in any intellectual
property security agreement between Borrower and Bank or knowledge of an
event that materially adversely affects the value of the Intellectual
Property.
(b) Within 30 days after the last day of each month, Borrower will
deliver to Bank a Borrowing Base Certificate signed by a Responsible Officer
in the form of Exhibit C, with aged listings of accounts receivable and
accounts payable.
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(c) Within 30 days after the last day of each month, Borrower will
deliver to Bank with the monthly financial statements a Compliance
Certificate signed by a Responsible Officer in the form of Exhibit D.
(d) Bank has the right to audit Borrower's Collateral at Borrower's
expense, but the audits will be conducted no more often than every 6 months
unless an Event of Default has occurred and is continuing.
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 $50,000.
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 requests. Insurance policies will be in a form, with
companies, and in amounts that are reasonably satisfactory to Bank. 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 all policies will 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. Subject to Section 6.9 below, so long as no Event of
Default has occurred and is continuing, Borrower shall have the option of
applying the proceeds of any casualty policy to the replacement or repair of
destroyed or damaged property; provided that, after the occurrence and during
the continuance of an Event of Default, all proceeds payable under any such
casualty policy shall, at the option of Bank, be payable to Bank on account
of the Obligations.
6.6 PRIMARY ACCOUNTS.
Borrower will maintain its primary depository and operating accounts
and short-term investment accounts with Bank.
6.7 FINANCIAL COVENANTS.
Borrower will maintain as of the last day of each month:
(i) LIQUIDITY COVERAGE. A ratio of unrestricted cash plus
50% of Eligible Accounts greater than either (a) two times the outstanding
Credit Extensions or (b) four months Remaining Months Liquidity. At such time
as Borrower achieves a minimum quarterly profit of $1 for 2 consecutive
quarters, the Liquidity Coverage shall be replaced by a Debt Service Coverage
described in (ii) below.
(ii) DEBT SERVICE COVERAGE. A ratio of earnings before tax
plus depreciation and amortization divided by the sum of current maturities
of long term debt plus interest expense monthly of at least 1.50 to 1.00.
(iii) PROFITABILITY. Borrower will have a minimum net
profit of $1 for each month, except that Borrower may suffer a quarterly loss
not to exceed 125% of Borrower's financial projections approved by its Board
of Directors in form and substance acceptable to Bank.
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6.8 REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS.
Borrower will register with the United States Patent and Trademark
Office or the United States Copyright Office its Intellectual Property within
30 days of the date of this Agreement, and additional Intellectual Property
rights developed or acquired including revisions or additions with any
product before the sale or licensing of the product to any third party.
Borrower will (i) protect, defend and maintain the validity and
enforceability of the Intellectual Property and promptly advise Bank in
writing of material infringements and (ii) not allow any Intellectual
Property to be abandoned, forfeited or dedicated to the public without Bank's
written consent.
6.9 LOSS; DESTRUCTION; OR DAMAGE.
Borrower will bear the risk of the Financed Equipment being lost,
stolen, destroyed, or damaged. If during the term of this Agreement any item
of Financed Equipment is lost, stolen, destroyed, damaged beyond repair,
rendered permanently unfit for use, or seized by a governmental authority for
any reason for a period equal to at least the remainder of the term of this
Agreement (an "Event of Loss"), then in each case, Borrower:
(a) prior to the occurrence of an Event of Default, at Borrower's
option, will (i) pay to Bank on account of the Obligations all accrued
interest to the date of the prepayment, plus all outstanding principal, plus
the Final Payment; or (ii) repair or replace any Financed Equipment subject
to an Event of Loss provided the repaired or replaced Financed Equipment is
of equal or like value to the Financed Equipment subject to an Event of Loss
and provided further that Bank has a first priority perfected security
interest in such repaired or replaced Financed Equipment.
(b) during the continuance of an Event of Default, on or before the
Payment Date after such Event of Loss for each such item of Financed
Equipment subject to such Event of Loss, Borrower will, at Bank's option, pay
to Bank an amount equal to the sum of: (i) all accrued and unpaid Scheduled
Payments (with respect to such Equipment Advance related to the Event of
Loss) due prior to the next such Payment Date, (ii) all Regularly Scheduled
Payments (including principal and interest), (iii) the Final Payment plus
(iv) all other sums, if any, that shall have become due and payable,
including interest at the Default Rate with respect to any past due amounts.
(c) On the date of receipt by Bank of the amount specified above
with respect to each such item of Financed Equipment subject to an Event of
Loss, this Agreement shall terminate as to such Financed Equipment. If any
proceeds of insurance or awards received from governmental authorities are in
excess of the amount owed under this Section, Bank shall promptly remit to
Borrower the amount in excess of the amount owed to Bank.
6.10 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
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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) result in a decrease of more than 25% of Tangible Net
Worth. A Subsidiary may merge or consolidate into another Subsidiary or into
Borrower.
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, except for
repurchases of stock from former employees or directors of Borrower under the
terms of applicable repurchase agreements in an aggregate amount not to
exceed $50,000 in any fiscal year, provided that no Event of Default has
occurred, is continuing or would exist after giving effect to the repurchase.
7.7 TRANSACTIONS WITH AFFILIATES.
Directly or indirectly enter 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 SUBORDINATED DEBT.
Make or permit any payment on any Subordinated Debt, except under
the terms of the Subordinated Debt, or amend any provision in any document
relating to the Subordinated Debt without Bank's prior written consent.
7.9 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
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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 reasonable 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 business
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 does not perform any obligation in Section 6 or 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);
8.3 MATERIAL ADVERSE CHANGE.
(i) If there 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 (other than normal depreciation) which is not covered by
adequate insurance or (ii) if the Bank determines, based upon information
available to it and in its reasonable judgment, that there is a reasonable
likelihood that Borrower will fail to comply with one or more of the
financial covenants in Section 6 during the next succeeding financial
reporting period.
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);
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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;
(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.
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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.
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,
15
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
California 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 Santa ▇▇▇▇▇ County,
California.
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.
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
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.
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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.
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 EFFECT OF AMENDMENT AND RESTATEMENT.
This Agreement is intended to and does completely amend and restate,
without novation, the Original Agreement. All Credit Extensions or loans
outstanding under the Original Agreement are and shall continue to be
outstanding under this Agreement. All security interests granted under the
Original Agreement are hereby confirmed and ratified and shall continue to
secure all Obligations under this Agreement.
12.10 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.
"ADVANCE" or "ADVANCES" is a loan advance (or advances) under the
Committed Revolving Line.
"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).
"BASIC RATE" is, as of the Funding Date, the per annum rate of
interest (based on a year of 360 days) equal to the sum of (a) the U.S.
Treasury note yield to maturity for a term equal to the Treasury
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Note Maturity as quoted in The Wall Street Journal on the day the Loan
Supplement is prepared, plus (b) the Loan Margin.
"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.
"BORROWING BASE" is 75% of Eligible Accounts as determined by Bank
from Borrower's most recent Borrowing Base Certificate; PROVIDED, HOWEVER,
that Bank may lower the percentage of the Borrowing Base after performing an
audit of Borrower's Collateral.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"CAPITALIZED PRODUCT DEVELOPMENT COSTS" are all costs associated
with the development of Borrower's product, including, but not limited to
software, that are not recorded as an expense and have been classified as an
asset account.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the California Uniform Commercial Code.
"COLLATERAL" is the property described on EXHIBIT A.
"COMMITMENT TERMINATION DATE" June 1, 2000.
"COMMITTED EQUIPMENT LINE" is a Credit Extension of up to $1,500,000.
"COMMITTED REVOLVING LINE" is an Advance of up to $750,000.
"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 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 each Revolving Advances, Equipment Advance and
Term Loan, or any other extension of credit by Bank for Borrower's benefit.
"ELIGIBLE ACCOUNTS" are Accounts in the ordinary course of
Borrower's business that meet all Borrower's representations and warranties
in Section 5; BUT Bank may change eligibility standards by giving Borrower
notice. Unless Bank agrees otherwise in writing, Eligible Accounts will not
include:
(a) Accounts that the account debtor has not paid within 90 days of
invoice date;
(b) Accounts for an account debtor, 50% or more of whose Accounts
have not been paid within 90 days of invoice date;
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(c) Credit balances over 90 days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose
total obligations to Borrower exceed 25% of all Accounts, for the
amounts that exceed that percentage, unless the Bank approves in
writing;
(e) Accounts for which the account debtor does not have its
principal place of business in the United States;
(f) Accounts for which the account debtor is a federal, state or
local government entity or any department, agency, or
instrumentality;
(g) Accounts for which Borrower owes the account debtor, but only up
to the amount owed (sometimes called "contra" accounts, accounts
payable, customer deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which
goods are consigned, sales guaranteed, sale or return, sale on
approval, ▇▇▇▇ and hold, or other terms if account debtor's payment
may be conditional;
(i) Accounts for which the account debtor is Borrower's Affiliate,
officer, employee, or agent;
(j) Accounts in which the account debtor disputes liability or makes
any claim and Bank believes there may be a basis for dispute (but
only up to the disputed or claimed amount), or if the Account Debtor
is subject to an Insolvency Proceeding, or becomes insolvent, or
goes out of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"ELIGIBLE EQUIPMENT" is general purpose computer equipment, office
equipment, test and laboratory equipment and furnishings 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 shall be new 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.
"ERISA" is the Employment Retirement Income Security Act of 1974,
and its regulations.
"FINAL PAYMENT" is a payment (in addition to and not a substitution
for the regular monthly payments of principal plus accrued interest) due on
the Maturity Date for such Equipment Advance equal to the Loan Amount for
such Equipment Advance multiplied by the Final Payment Percentage.
"FINAL PAYMENT PERCENTAGE" is, for each Equipment Advance, 8%.
"FINANCED EQUIPMENT" is defined in the Loan Supplement.
"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.
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"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:
(a) Copyrights, Trademarks, Patents, and Mask Works including
amendments, renewals, extensions, and all licenses or other rights to use and
all license fees and royalties from the use;
(b) Any trade secrets and any intellectual property rights in
computer software and computer software products now or later existing,
created, acquired or held;
(c) All design rights which may be available to Borrower now or
later created, acquired or held;
(d) Any claims for damages (past, present or future) for
infringement of any of the rights above, with the right, but not the
obligation, to ▇▇▇ and collect damages for use or infringement of the
intellectual property rights above;
All proceeds and products of the foregoing, including all insurance,
indemnity or warranty payments.
"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, Credit
Extension or capital contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN AMOUNT" is the aggregate amount of the Equipment Advance.
"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.
"LOAN FACTOR" is the percentage which results from amortizing the
Equipment Advance over the Repayment Period, using the Basic Rate as the
interest rate.
"LOAN MARGIN" is 275 basis points.
"LOAN SUPPLEMENT" is attached as Exhibit E.
"MASK WORKS" are all mask works or similar rights available for the
protection of semiconductor chips, now owned or later acquired.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"MATURITY DATE" is, with respect to each Equipment Advance, the last
day of the Repayment Period for such Equipment Advance, or if earlier, the
date of acceleration of such Equipment Advance by Bank following an Event of
Default.
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"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.
"ORIGINAL AGREEMENT" has the meaning set forth in recital paragraph
A.
"ORIGINAL STATED COST" is (i), the original cost to the Borrower of
the item of new Equipment net of any and all freight, installation, tax or
(ii) the fair market value assigned to such item of used Equipment by mutual
agreement of Borrower and Bank at the time of making of the Equipment Advance.
"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) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course
of business; and
(e) 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 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;
21
(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 RATE" is Bank's most recently announced "prime rate," even if
it is not Bank's lowest rate.
"REMAINING MONTHS LIQUIDITY" Borrower will maintain, as of the last
day of each month, at least 4 months Remaining Months Liquidity. "Remaining
Months Liquidity" is cash on hand (and cash equivalents) plus 50% of
Borrower's net accounts receivable, divided by Cash Burn. If cash (and cash
equivalents) increases from the prior period, "Cash Burn" is cash (prior
period) minus cash (current period) plus increases/less decreases in short
and long term borrowings plus increases/less decreases in stock, paid-in
capital and Subordinated Debt. If cash (and cash equivalents) decreases from
prior period, "Cash Burn" is cash (prior period) less (current period) minus
increases/plus decreases in short and long term borrowings minus
increases/plus decreases in stock, paid-in capital and subordinated debt.
"REPAYMENT PERIOD" as to the Equipment Advances, is 24 months.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"REVOLVING MATURITY DATE" is March 1, 2001.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to
Borrower's indebtedness owed to Bank and which is reflected in a written
agreement in a manner and form acceptable to Bank and approved by Bank in
writing.
"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.
"TERM LOAN" a loan of $312,109.18
"TERM LOAN MATURITY DATE" is January 25, 2002.
"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.
"TREASURY NOTE MATURITY" is 24 months.
BORROWER:
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Controller
-------------------------------
22
BANK:
SILICON VALLEY BANK
By:
----------------------------------
Title:
-------------------------------
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 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
registrations 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.
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: ▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
---------------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------------------
PHONE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇
-------------------------------------------------------------------
FROM ACCOUNT #________________ TO ACCOUNT #_______________
REQUEST 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 Amended and Restated 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)
________________________________________________________________________________
EXHIBIT C
BORROWING BASE CERTIFICATE
________________________________________________________________________________
Borrower ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated Bank: Silicon Valley Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Commitment Amount: $750,000
________________________________________________________________________________
ACCOUNTS RECEIVABLE
1. Accounts Receivable Book Value as of $
--------------- ------------------------
2. Additions (please explain on reverse) ______ $
------------------------
3. TOTAL ACCOUNTS RECEIVABLE $
------------------------
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4. Amounts over 90 days due $
---------------
5. Balance of 50% over 90 day accounts $
---------------
6. Credit balances over 90 days $
---------------
7. Concentration Limits $
---------------
8. Foreign Accounts $
---------------
9. Governmental Accounts $
---------------
10. Contra Accounts $
---------------
11. Promotion or Demo Accounts $
---------------
12. Intercompany/Employee Accounts $
---------------
13. Other (please explain on reverse) $
---------------
14. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $
--------------------------
15. Eligible Accounts (#3 minus #14) $
--------------------------
16. LOAN VALUE OF ACCOUNTS (75% of #15) $
--------------------------
BALANCES
17. Maximum Loan Amount $
---------------
18. Total Funds Available [Lesser of #17 or #16] $
--------------------------
19. Present balance owing on Line of Credit $ 0
---------------
20. Outstanding under Sublimits ( ) $ 0
---------------
21. RESERVE POSITION (#18 minus #19 and #20) $
--------------------------
THE UNDERSIGNED REPRESENTS AND WARRANTS THAT THIS IS TRUE, COMPLETE AND CORRECT,
AND THAT THE INFORMATION IN THIS BORROWING BASE CERTIFICATE COMPLIES WITH THE
REPRESENTATIONS AND WARRANTIES IN THE AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT BETWEEN THE UNDERSIGNED AND SILICON VALLEY BANK.
----------------------
COMMENTS:
BANK USE ONLY
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
Rec'd By:____________
By:_________________________________ Auth. Signer
Authorized Signer Date:________________
Verified:____________
Auth. Signer
Date:________________
_____________________
----------------------
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FROM: ▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
The undersigned authorized officer of ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
("Borrower") certifies that under the terms and conditions of the Amended and
Restated Loan and Security Agreement between Borrower and Bank "Agreement"), (i)
Borrower is in complete compliance for the period ending 2/29/00 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
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
------------------ -------- --------
Monthly financial statements + CC Monthly within 30 days _X_ Yes ___ No
Annual (Audited) FYE within 90 days ___ Yes _X_ No
A/R & A/P Agings Monthly within 30 days _X_ Yes ___ No
Borrowing Base Certificate Monthly within 30 days _X_ Yes ___ No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Maintain on a Monthly Basis:
Minimum Debt Service* ___ Yes _X_ No
Minimum Liquidity Coverage** _X_ Yes ___ No
Profitability: Monthly $ _X_ Yes ___ No
------------
Losses not to exceed: a maximum quarterly loss of 125% of the _X_ Yes ___ No
financial projections.
* A ratio of earnings before tax plus depreciation and amortization
divided by the sum of current maturities of long term debt plus
interest expense monthly of at lease 1.50 to 1.00.
** A ratio of unrestricted cash plus 50% of Eligible Accounts greater than
either (a) two times the outstanding Credit Extensions or (b) four
months Remaining Months Liquidity. At such time as Borrower achieves a
minimum quarterly of $1 for 2 consecutive quarters, the Liquidity
Coverage shall be replaced by a Debt Service Coverage.
-------------------------
COMMENTS REGARDING EXCEPTIONS: See Attached.
BANK USE ONLY
Sincerely,
Rec'd By:_______________
▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated, Auth. Signer
Date:___________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------- Verified:_______________
SIGNATURE Auth. Signer
Date:___________________
Controller
-------------------------- Compliance Status: Yes No
TITLE
-------------------------
3/27/00
--------------------------
DATE
[LOGO]
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
-------------------------------------------------------------------------------
BORROWER: ▇▇▇▇▇▇▇▇▇.▇▇▇ INCORPORATED
LOAN OFFICER: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DATE: MARCH 1, 2000
REVOLVING LOAN FEE $7,500.00
CREDIT REPORT 35.00
UCC SEARCH FEE 150.00
UCC FILING FEE 20.00
INTELLECTUAL PROPERTY FILING FEES 550.00
DOCUMENTATION FEE 1,500.00
LESS GOOD FAITH DEPOSIT ($2,500.00)
TOTAL FEE DUE $7,255.00
------------ =========
PLEASE INDICATE THE METHOD OF PAYMENT:
( ) A CHECK FOR THE TOTAL AMOUNT IS ATTACHED.
( x ) DEBIT DDA #3300123800 FOR THE TOTAL AMOUNT.
( ) LOAN PROCEEDS
BORROWER:
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
(AUTHORIZED SIGNER)
-----------------------------------
SILICON VALLEY BANK (DATE)
ACCOUNT OFFICER'S SIGNATURE
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement is entered into as of
March 1,2000 by and between SILICON VALLEY BANK ("Bank") and ▇▇▇▇▇▇▇▇▇.▇▇▇
Incorporated ("Grantor").
RECITALS
A. Bank has agreed to make certain Credit Extensions of money
and to extend certain financial accommodation to Grantor (the "Loans") in the
amounts and manner set forth in that certain Loan and Security Agreement by
and between Bank and Grantor dated March 1, 2000 (as the same may be amended,
modified or supplemented from time to time, the "Loan Agreement"; capitalized
terms used herein are used as defined in the Loan Agreement). Bank is willing
to make the Loans to Grantor, but only upon the condition, among others, that
Grantor shall grant to Bank a security interest in certain Copyrights,
Trademarks, Patents, and Mask Works to secure the obligations of Grantor
under the Loan Agreement.
B. Pursuant to the terms of the Loan Agreement, Grantor has
granted to Bank a security interest in all of Grantor's right, title and
interest, whether presently existing or hereafter acquired, in, to and under
all of the Collateral.
NOW, THEREFORE, for good and valuable consideration, receipt of
which is hereby acknowledged, and intending to be legally bound, as
collateral security for the prompt and complete payment when due of its
obligations under the Loan Agreement, Grantor hereby represents, warrants,
covenants and agrees as follows:
AGREEMENT
To secure its obligations under the Loan Agreement, Grantor grants
and pledges to Bank a security interest in all of Grantor's right, title and
interest in, to and under its Intellectual Property Collateral (including
without limitation those Copyrights, Patents, Trademarks and Mask Works
listed on Schedules A, B, C, and D hereto), and including without limitation
all proceeds thereof (such as, by way of example but not by way of
limitation, license royalties and proceeds of infringement suits), the right
to ▇▇▇ for past, present and future infringements, all rights corresponding
thereto throughout the world and all re-issues, divisions continuations,
renewals, extensions and continuations-in-part thereof.
This security interest is granted in conjunction with the security
interest granted to Bank under the Loan Agreement. The rights and remedies of
Bank with respect to the security interest granted hereby are in addition to
those set forth in the Loan Agreement and the other Loan Documents, and those
which are now or hereafter available to Bank as a matter of law or equity.
Each right, power and remedy of Bank provided for herein or in the Loan
Agreement or any of the Loan Documents, or now or hereafter existing at law
or in equity shall be cumulative and concurrent and shall be in addition to
every right, power or remedy provided for herein and the exercise by Bank of
any one or more of the rights, powers or remedies provided for in this
Intellectual Property Security Agreement, the Loan Agreement or any of the
other Loan Documents, or now or hereafter existing at law or in equity, shall
not preclude the simultaneous or later exercise by any person, including
Bank, of any or all other rights, powers or remedies.
IN WITNESS WHEREOF, the parties have cause this Intellectual
Property Security Agreement to be duly executed by its officers thereunto
duly authorized as of the first date written above.
GRANTOR:
Address of Grantor: ▇▇▇▇▇▇▇▇▇.▇▇▇ Incorporated
3475 ▇. ▇▇▇▇▇▇ Way By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- -----------------------------
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Title: Controller
----------------------------------- --------------------------
Attn:
------------------------------
BANK:
Address of Bank: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ By:
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ -----------------------------
Title:
Attn: --------------------------
------------------------------
2
EXHIBIT A
---------
Copyrights
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
None
EXHIBIT B
---------
Patents
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
None
EXHIBIT C
---------
Trademarks
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
"HOMESTEAD" 2286063 10/12/99
EXHIBIT D
---------
Mask Works
Registration/ Registration/
Application Application
Description Number Date
----------- ------------- -------------
None
EXHIBIT E
---------
FORM OF LOAN AGREEMENT SUPPLEMENT
LOAN AGREEMENT SUPPLEMENT No. []
LOAN AGREEMENT SUPPLEMENT No. [], dated ___________, 2000 ("Supplement"), to
the Loan and Security Agreement dated as of ________, 2000 (the "Loan
Agreement") by and between the undersigned ("Borrower"), and Silicon Valley
Bank ("Bank").
Capitalized terms used herein but not otherwise defined herein are used with
the respective meanings given to such terms in the Loan Agreement.
To secure the prompt payment by Borrower of all amounts from time to time
outstanding under the Loan Agreement, and the performance by Borrower of all
the terms contained in the Loan Agreement, Borrower grants Bank, a first
priority security interest in each item of equipment and other property
described in Annex A hereto, which equipment and other property shall be
deemed to be additional Financed Equipment and Collateral. The Loan Agreement
is hereby incorporated by reference herein and is hereby ratified, approved
and confirmed.
Annex A (Equipment Schedule) and Annex B (Loan Terms Schedule) are attached
hereto.
The proceeds of the Loan should be transferred to Borrower's account with
Bank set forth below:
Bank Name: Silicon Valley Bank
Account No.:
Borrower hereby certifies that (a) the foregoing information is true and
correct and authorizes Bank to endorse in its respective books and records,
the Basic Rate applicable to the Funding Date of the Loan contemplated in
this Loan Agreement Supplement and the principal amount set forth in the Loan
Terms Schedule; (b) the representations and warranties made by Borrower in
the Loan Agreement are true and correct on the date hereof and will be true
and correct on such Funding Date. No Event of Default has occurred and is
continuing under the Loan Agreement. This Supplement may be executed by
Borrower and Bank in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
This Supplement is delivered as of this day and year first above written.
SILICON VALLEY BANK ▇▇▇▇▇▇▇▇▇.▇▇▇
---------------------------------------
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------- ------------------------------------
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------- ----------------------------------
Title: Title: Controller
------------------------- ---------------------------------
Annex A - Description of Financed Equipment
Annex B - Loan Terms Schedule
ANNEX A TO EXHIBIT E
--------------------
The Financed Equipment being financed with the Equipment Advance which this
Loan Agreement Supplement is being executed is listed below. Upon the funding
of such Equipment Advance, this schedule automatically shall be deemed to be
a part of the Collateral.
Description of Equipment: Make Model Serial # Invoice #
See attached invoices
2
ANNEX B TO EXHIBIT E
--------------------
LOAN TERMS SCHEDULE #_________
Loan Funding Date:____________, 2000
Original Loan Amount: $___________
Basic Rate: _______%
Loan Factor: ________%
Scheduled Payment Dates and Amounts*:
One (1) payment of $______________ due ______________________
_______ payment of $______________ due monthly in advance from _______________ through __________.
One (1) payment of $______________ due _______________________
Maturity Date: ____________
Final Payment: An additional amount equal to the Final Payment Percentage
multiplied by the Loan Amount then in effect, shall be paid on
the Maturity Date with respect to such Loan.
Payment No. Payment Date
1
2
3
4
...
35
[36]
...
*/ The amount of each Scheduled Payment will change as the Loan Amount
changes.
3