EXHIBIT 10(ag)
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EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT
THIS EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (this "EXIM
Agreement") entered into as of June 22, 2009, with an effective date of May 31,
2009 (the "Effective Date") by and between (i) SILICON VALLEY BANK, a California
corporation, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and with a loan production office located at One Newton
Executive Park, Suite 200, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Bank") and (ii) SPIRE CORPORATION, a Massachusetts corporation, SPIRE SOLAR,
INC., a Massachusetts corporation, SPIRE BIOMEDICAL, INC., a Massachusetts
corporation, each with offices located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and SPIRE SEMICONDUCTOR, LLC, a Delaware limited liability
company (formerly known as Bandwidth Semiconductor, LLC), with offices at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (jointly and severally, individually and
collectively, the "Borrower"), provides the terms on which Bank will lend to
Borrower and Borrower will repay Bank. The parties agree as follows:
1. ACCOUNTING AND OTHER TERMS
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(a) Borrower and Bank are parties to that certain Amended and
Restated Loan and Security Agreement dated as of the date hereof (as may be
amended from time to time, the "Domestic Agreement"), together with related
documents executed in conjunction therewith, (as may be amended from time to
time, the "Domestic Loan Documents").
(b) Borrower and Bank desire in this EXIM Agreement to set
forth their agreement with respect to a working capital facility to be
guaranteed by the EXIM Bank.
(c) Accounting terms not defined in this EXIM Agreement shall
be construed following GAAP. Calculations and determinations must be made
following GAAP. Capitalized terms not otherwise defined in this EXIM Agreement
shall have the meanings set forth in Section 13 of the Domestic Agreement. All
other terms contained in this EXIM Agreement, unless otherwise indicated, shall
have the meaning provided by the Code to the extent such terms are defined
therein.
2. LOAN AND TERMS OF PAYMENT
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2.1 Promise to Pay. Borrower hereby unconditionally, jointly and
severally, promises to pay Bank the outstanding principal amount of all Credit
Extensions and accrued and unpaid interest thereon as and when due in accordance
with this EXIM Agreement.
2.1.1 Revolving EXIM Advances.
(a) Availability. Subject to the terms and conditions of this
EXIM Agreement and to deduction of Reserves, Bank will make EXIM Advances to
Borrower up to the Availability Amount. Amounts borrowed under the Revolving
Line may be repaid, and prior to the Revolving Line Maturity Date, reborrowed,
subject to the applicable terms and conditions precedent herein.
(b) Termination; Repayment. The Revolving Line terminates on
the earlier of (i) the Revolving Line Maturity Date or (ii) the termination of
the Domestic Agreement, when the principal amount of all EXIM Advances, the
unpaid interest thereon, and all other Obligations relating to the Revolving
Line shall be immediately due and payable.
2.1.2 Letters of Credit Sublimit.
(a) Letters of Credit. Subject to the terms of this EXIM
Agreement, Bank shall issue or have issued Letters of Credit for Borrower's
account. All Letters of Credit shall be in form and substance acceptable to Bank
in its sole discretion and shall be subject to the terms and conditions of
Bank's standard Application and Letter of Credit Agreement (the "Letter of
Credit Application"). Borrower agrees to reimburse Bank for all drawings made
under Letters of Credit immediately upon the date of such drawing. If, on the
Revolving Line Maturity Date, there are any outstanding Letters of Credit, then
on such date Borrower shall provide to Bank cash collateral in an amount equal
to 105% of the face amount of all such Letters of Credit plus all interest,
fees, and costs due or to become due in connection therewith (as estimated by
Bank in its good faith business judgment), to secure all of the Obligations
relating to said Letters of Credit. Borrower agrees to execute any further
documentation in connection
with the Letters of Credit as Bank may reasonably request. The obligation of
Borrower to immediately reimburse Bank for drawings made under Letters of Credit
shall be absolute, unconditional, and irrevocable, and shall be performed
strictly in accordance with the terms of this EXIM Agreement, such Letters of
Credit, and the Letter of Credit Application.
(b) Maximum Amount. The maximum face amount of all Letters of
Credit issued hereunder, together with the aggregate amount of outstanding
Credit Extensions made pursuant to Section 2.1.1, shall not exceed the Revolving
Line.
2.2 Overadvances. If at any time or for any reason the total of
all outstanding Credit Extensions made pursuant to this EXIM Agreement exceeds
the Availability Amount (such excess amount being an "Overadvance"), Borrower
shall immediately pay the amount of the excess to Bank, without notice or
demand. Without limiting Borrower's obligation to repay to Bank the amount of
any Overadvance, Borrower agrees to pay Bank interest on the outstanding amount
of any Overadvance, on demand, at the Default Rate.
2.3 Payment of Interest on the Credit Extensions.
(a) Interest Rate; EXIM Advances. Subject to Section 2.3(b),
the principal amount outstanding under the Revolving Line shall accrue interest
at a per annum rate equal to the Prime Rate plus one and three-quarters percent
(1.75%); provided, however, that beginning with the month following the date
that Borrower provides evidence satisfactory to Bank, in its sole discretion,
that Borrower has maintained Net Income, based on the trailing three (3) month
period ending on the date of measurement, of at least One Dollar ($1.00), then,
subject to Section 2.3(b), the principal amount outstanding under the Revolving
Line shall accrue interest at a per annum rate equal to the Prime Rate plus
three-quarters percent (0.75%).
(b) Default Rate. Immediately upon the occurrence and during
the continuance of an Event of Default, Obligations shall bear interest at a
rate per annum which is five percentage points (5.00%) above the rate that is
otherwise applicable thereto (the "Default Rate"). Payment or acceptance of the
increased interest rate provided in this Section 2.3(b) is not a permitted
alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Bank.
(c) Adjustment to Interest Rate. Changes to the interest rate
of any Credit Extension based on changes to the Prime Rate shall be effective on
the effective date of any change to the Prime Rate and to the extent of any such
change.
(d) 360-Day Year. Interest shall be computed on the basis of a
360-day year for the actual number of days elapsed.
(e) Debit of Accounts. Bank may debit the Designated Deposit
Account, for principal and interest payments or any other amounts Borrower owes
Bank when due. These debits shall not constitute a set-off.
(f) Payment; Interest Computation; Float Charge. Interest is
payable monthly on the last calendar day of each month. In computing interest on
the Obligations, all Payments received after 12:00 p.m. Pacific time on any day
shall be deemed received on the next Business Day. In addition, so long as any
principal or interest with respect to any Credit Extension remains outstanding,
Bank shall be entitled to charge Borrower a "float" charge in an amount equal to
three (3) Business Day's interest, at the interest rate applicable to the EXIM
Advances, on all payments received by Bank. The float charge for each month
shall be payable on the last day of the month. Bank shall not be required to
credit Borrower's account for the amount of any item of payment which is
unsatisfactory to Bank in its reasonable business judgment, and Bank may charge
Borrower's Designated Deposit Account for the amount of any item of payment
which is returned to Bank unpaid.
2.4 Fees. Borrower shall pay to Bank:
(a) Commitment Fee. A fully earned, non-refundable commitment
fee, payable in accordance with the terms and conditions of the Domestic
Agreement;
(b) Letter of Credit Fee. Bank's customary fees and expenses
for the issuance or renewal of Letters of Credit, upon the issuance, each
anniversary of the issuance, and the renewal of such Letter of Credit; and
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(c) Bank Expenses. All Bank Expenses (including reasonable and
documented attorneys' fees and expenses for documentation and negotiation of
this EXIM Agreement) incurred through and after the Effective Date, when due.
2.5 Use of Proceeds. Borrower will use the proceeds of the EXIM
Advances only for the purposes specified in the EXIM Borrower Agreement.
Borrower will not use the proceeds of the EXIM Advances for any purpose
prohibited by the EXIM Borrower Agreement.
2.6 EXIM Guaranty. To facilitate the financing of Eligible EXIM
Accounts, the EXIM Bank has agreed to guarantee the EXIM Loans made under this
EXIM Agreement, pursuant to a Master Guarantee Agreement, Loan Authorization
Agreement and (to the extent applicable) Delegated Authority Letter Agreement
(collectively, the "EXIM Guaranty"). If, at any time after the EXIM Guaranty has
been entered into by Bank, for any reason other than due to any action or
inaction of Borrower under the EXIM Guaranty, (a) the EXIM Guaranty shall cease
to be in full force and effect, or (b) if the EXIM Bank declares the EXIM
Guaranty void or revokes any obligations thereunder or denies liability
thereunder, Borrower shall immediately repay all outstanding EXIM Advances
hereunder, and Borrower shall cash collateralize all issued and undrawn letters
of credit issued by Bank, if any. If, at any time after the EXIM Guaranty has
been entered into by Bank, for any reason other than as described in the
foregoing sentence, (x) the EXIM Guaranty shall cease to be in full force and
effect, or (y) the EXIM Bank declares the EXIM Guaranty void or revokes any
obligations thereunder or denies liability thereunder, any such event shall
constitute an Event of Default under this EXIM Agreement. Nothing in any
confidentiality agreement, in this EXIM Agreement or in any other agreement,
shall restrict Bank's right to make disclosures and provide information to the
EXIM Bank in connection with the EXIM Guaranty.
2.7 EXIM Borrower Agreement. Borrower shall execute and deliver a
Borrower Agreement, in the form specified by the EXIM Bank (attached hereto as
Annex A), in favor of Bank and the EXIM Bank, together with an amendment thereto
approved by the EXIM Bank to conform certain terms of such Borrower Agreement to
the terms of this EXIM Agreement (as amended, the "EXIM Borrower Agreement").
When the EXIM Borrower Agreement is entered into by Borrower and the EXIM Bank
and delivered to Bank, this EXIM Agreement shall be subject to all of the terms
and conditions of the EXIM Borrower Agreement, all of which are hereby
incorporated herein by this reference. From and after the time Borrower and the
EXIM Bank have entered into the EXIM Borrower Agreement and delivered the same
to Bank, Borrower expressly agrees to perform all of the obligations and comply
with all of the affirmative and negative covenants and all other terms and
conditions set forth in the EXIM Borrower Agreement as though the same were
expressly set forth herein. In the event of any conflict between the terms of
the EXIM Borrower Agreement (if then in effect) and the other terms of this EXIM
Agreement, whichever terms are more restrictive shall apply. Borrower
acknowledges and agrees that it has received a copy of the Loan Authorization
Agreement which is referred to in the EXIM Borrower Agreement. If the EXIM
Borrower Agreement is entered into by Borrower and the EXIM Bank and delivered
to Bank, Borrower agrees to be bound by the terms of the Loan Authorization
Agreement, including, without limitation, by any additions or revisions made
prior to its execution on behalf of EXIM Bank. Upon the execution of the Loan
Authorization Agreement by EXIM Bank and Bank, it shall become an attachment to
the EXIM Borrower Agreement. Borrower shall reimburse Bank for all fees and all
out of pocket costs and expenses incurred by Bank with respect to the EXIM
Guaranty and the EXIM Borrower Agreement, including, without limitation, all
facility fees and usage fees, and Bank is authorized to debit any of Borrower's
deposit accounts with Bank for such fees, costs and expenses when paid by Bank.
2.8 Withholding. Payments received by Bank from Borrower hereunder
will be made free and clear of any withholding taxes. Specifically, however, if
at any time any governmental authority, applicable law, regulation or
international agreement requires Borrower to make any such withholding or
deduction from any such payment or other sum payment hereunder to Bank, Borrower
hereby covenants and agrees that the amount due from Borrower with respect to
such payment or other sum payable hereunder will be increased to the extent
necessary to ensure that, after the making of such required withholding or
deduction, Bank receives a net sum equal to the sum which it would have received
had no withholding or deduction been required and Borrower shall pay the full
amount withheld or deducted to the relevant governmental authority. Borrower
will, upon request, furnish Bank with proof satisfactory to Bank indicating that
Borrower has made such withholding payment provided, however, that Borrower need
not make any withholding payment if the amount or validity of such withholding
payment is contested in good faith by appropriate and timely proceedings and as
to which payment in full is bonded or reserved against by Borrower. The
agreements and obligations of Borrower contained in this Section 2.8 shall
survive the termination of this Agreement.
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3. CONDITIONS OF LOANS
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3.1 Conditions Precedent to Initial Credit Extension. Bank's
obligation to make the initial Credit Extension is subject to the condition
precedent that Bank shall have received, in form and substance satisfactory to
Bank, such documents, and completion of such other matters, as Bank may
reasonably deem necessary or appropriate, including, without limitation:
(a) duly executed original signatures to the Loan Documents to
which it is a party;
(b) the Economic Impact Certification, Loan Authorization
Notice and EXIM Bank Application Form, in each case duly executed and together
with original signatures, as applicable;
(c) duly executed original signatures to the completed
Borrowing Resolutions for Borrower;
(d) a legal opinion of Borrower's counsel dated as of the
Effective Date together with the duly executed original signatures thereto;
(e) payment of the fees and Bank Expenses then due as
specified in Section 2.4 hereof; and
(f) delivery of all such other documents as Bank reasonably
deems necessary or appropriate.
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 export purchase order and an EXIM
Borrowing Base Certificate relating to the request;
(b) except as otherwise provided in Section 3.4, timely
receipt of an executed Transaction Report;
(c) the representations and warranties in Section 5 shall be
true in all material respects on the date of the Transaction Report and on the
Funding Date of each Credit Extension; provided, however, that such materiality
qualifier shall not be applicable to any representations and warranties that
already are qualified or modified by materiality in the text thereof; and
provided, further that those representations and warranties expressly referring
to a specific date shall be true, accurate and complete in all material respects
as of such date, and no Default or Event of Default shall 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 in Section 5 remain true in all material respects; provided, however,
that such materiality qualifier shall not be applicable to any representations
and warranties that already are qualified or modified by materiality in the text
thereof; and provided, further, that those representations and warranties
expressly referring to a specific date shall be true, accurate and complete in
all material respects as of such date;
(d) in Bank's sole discretion, since the date of this EXIM
Agreement, there has not been any material impairment in the general affairs,
management, results of operation, financial condition or the prospect of
repayment of the Obligations, or there has not been any material adverse
deviation by Borrower from the most recent business plan of Borrower presented
to and accepted by Bank; and
(e) the EXIM Guaranty shall be in full force and effect.
3.3 Covenant to Deliver. Borrower agrees to deliver to Bank each
item required to be delivered to Bank under this EXIM A
3.4 greement as a condition to any Credit Extension. Borrower
expressly agrees that the extension of a Credit Extension prior to the receipt
by Bank of any such item shall not constitute a waiver by Bank of Borrower's
obligation to deliver such item, and any such extension in the absence of a
required item shall be in Bank's reasonable discretion.
3.5 Procedures for Borrowing. Subject to the prior satisfaction of
all other applicable conditions to the making of an Advance set forth in this
EXIM Agreement, to obtain an EXIM Advance, Borrower shall notify Bank (which
notice shall be irrevocable) by electronic mail, facsimile, or telephone by
12:00 p.m. Pacific time on the Funding Date of the EXIM Advance. Together with
such notification, Borrower must promptly deliver to Bank by electronic mail or
facsimile a completed Transaction Report (if required) executed by a Responsible
Officer or his or her designee. Bank shall credit EXIM Advances to the
Designated Deposit Account. Bank may make Advances under this EXIM 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.
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4. CREATION OF SECURITY INTEREST
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4.1 Grant of Security Interest. Borrower hereby grants Bank, to
secure the payment and performance in full of all of the Obligations, a
continuing security interest in, and pledges to Bank, the Collateral, wherever
located, whether now owned or hereafter acquired or arising, and all proceeds
and products thereof. Borrower represents, warrants, and covenants that the
security interest granted herein is and shall at all times continue to be a
first priority perfected security interest in the Collateral (subject only to
Permitted Liens that may have superior priority to Bank's Lien under this EXIM
Agreement). If Borrower shall acquire a commercial tort claim, Borrower shall
promptly notify Bank in a writing signed by Borrower of the general details
thereof and grant to Bank in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this EXIM Agreement, with such writing
to be in form and substance reasonably satisfactory to Bank.
Notwithstanding the foregoing, it is expressly acknowledged and agreed
that the security interest created in this EXIM Agreement in all of the
Collateral (with the exception of Export-Related Accounts Receivable,
Export-Related Inventory and Export-Related General Intangibles) is subject to
and subordinate to the security interest granted to Bank in the Domestic
Agreement and the security interest created in the Domestic Agreement with
respect to such Export-Related Accounts Receivable, Export-Related Inventory and
Export-Related General Intangibles is subject to and subordinate to the security
interest granted to Bank in this EXIM Agreement with respect to such
Export-Related Accounts Receivable, Export-Related Inventory and any
Export-Related General Intangibles.
4.2 Authorization to File Financing Statements. Borrower hereby
authorizes Bank to file financing statements, without notice to Borrower, with
all appropriate jurisdictions to perfect or protect Bank's interest or rights
hereunder, including a notice that any disposition of the Collateral, by either
Borrower or any other Person, shall be deemed to violate the rights of Bank
under the Code. Such financing statements may indicate the Collateral as "all
assets of the Debtor" or words of similar effect, or as being of an equal or
lesser scope, or with greater detail, all in Bank's discretion.
5. REPRESENTATIONS AND WARRANTIES
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Borrower represents and warrants as follows:
5.1 Domestic Loan Documents. The representations and warranties
contained in the Domestic Loan Documents, which are incorporated into this EXIM
Agreement by reference, are true and correct, and shall survive the termination
of the Domestic Agreement.
5.2 EXIM Borrower Agreement. The representations and warranties
contained in the EXIM Borrower Agreement, which are incorporated by reference
into this EXIM Agreement, are true and correct in all material respects.
5.3 Accounts Receivable.
(a) For each Account with respect to which EXIM Advances are
requested, on the date each EXIM Advance is requested and made, such Account
shall meet the Minimum EXIM Eligibility Requirements set forth in Section 13
below.
(b) All statements made and all unpaid balances appearing in
all invoices, instruments and other documents evidencing the Accounts are and
shall be true and correct and all such invoices, instruments and other
documents, and all of Borrower's Books are genuine and in all respects what they
purport to be. All sales and other transactions underlying or giving rise to
each Account shall comply in all material respects with all applicable laws and
governmental rules and regulations. Borrower has no knowledge of any actual or
imminent Insolvency Proceeding of any Account Debtor whose accounts are an
Eligible EXIM Account in any EXIM Borrowing Base Certificate. To Borrower's
knowledge, all signatures and endorsements on all documents, instruments, and
agreements relating to all Accounts are genuine, and all such documents,
instruments and agreements are legally enforceable in accordance with their
terms.
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6. AFFIRMATIVE COVENANTS
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Borrower shall do all of the following:
6.1 Domestic Loan Documents. Borrower shall comply in all material
respects with the terms and provisions of the Domestic Loan Documents, which
terms and provisions are incorporated into this EXIM Agreement and shall survive
the termination of the Domestic Agreement, which shall include, without
limitation, compliance with the financial reporting requirements set forth in
the Domestic Agreement and the financial covenants set forth in the Domestic
Agreement.
6.2 EXIM Borrower Agreement. Borrower shall comply with all of the
terms of the EXIM Borrower Agreement, including without limitation, the delivery
of an EXIM Borrowing Base Certificate within five (5) days after the end of each
week (monthly, within five (5) days after the end of each month during a
Streamline Period) any and all notices required pursuant to the EXIM Borrower
Agreement. In the event of any conflict or inconsistency between any provision
contained in the EXIM Borrower Agreement with any provision contained in this
EXIM Agreement, the more strict provision, with respect to Borrower, shall
control.
6.3 Terms of Sale. Borrower will, if required by EXIM Bank or
Bank, cause all sales of products on which Credit Extensions are based to be (i)
supported by one or more irrevocable letters of credit in an amount and of a
matter, naming a beneficiary and issued by a financial institution acceptable to
Bank and negotiated by Bank.
6.4 Reporting Requirements. Borrower shall deliver all reports,
certificates and other documents to Bank as provided in the EXIM Borrower
Agreement, including, without limitation, an EXIM Borrowing Base Certificate on
a monthly basis, purchase orders and any other information that Bank and EXIM
Bank may reasonably request. In addition, Borrower shall comply with the
reporting requirements set forth in the Domestic Loan Documents.
6.5 EXIM Insurance. If required by Bank, Borrower will obtain, and
pay when due all premiums with respect to, and maintain uninterrupted foreign
credit insurance. In addition, if requested by Bank, Borrower will execute in
favor of Bank an assignment of proceeds of any insurance policy obtained by
Borrower and issued by EXIM Bank insuring against comprehensive commercial and
political risk (the "EXIM Bank Policy"). The insurance proceeds from the EXIM
Bank Policy assigned or paid to Bank will be applied to the balance outstanding
under this EXIM Agreement. Borrower will immediately notify Bank and EXIM Bank
in writing upon submission of any claim under the EXIM Bank Policy.
6.6 Further Assurances. Execute any further instruments and take
further action as Bank reasonably requests to perfect or continue Bank's Lien in
the Collateral or to effect the purposes of this EXIM Agreement.
7. NEGATIVE COVENANTS
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Borrower shall not do any of the following without Bank's prior written
consent:
7.1 Domestic Loan Documents. Violate or otherwise fail to comply
with any provisions of the Domestic Loan Documents, which provisions are
incorporated into this EXIM Agreement by reference, and shall survive the
termination of Domestic Agreement.
7.2 EXIM Borrower Agreement. Violate or otherwise fail to comply
with any provision of the EXIM Borrower Agreement, including, without
limitation, the negative covenants set forth therein.
7.3 EXIM Guaranty. Take any action, or permit any action to be
taken, that causes or, with the passage of time, could cause, the EXIM Guaranty
to cease to be in full force and effect.
8. EVENTS OF DEFAULT
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Any one of the following shall constitute an event of default (an
"Event of Default") under this EXIM Agreement:
8.1 Payment Default. Borrower fails to (a) make any payment of
principal or interest on any Credit Extension on its due date, or (b) pay any
other Obligations within three (3) Business Days after such Obligations are due
and payable (which three (3) Business Day grace period shall not apply to
payments due on the Maturity Date). During the cure period, the failure to cure
the payment default is not an Event of Default (but no Credit Extension will be
made during the cure period);
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8.2 Covenant Default.
(a) Borrower fails or neglects to perform any obligation in 7;
or
(b) Borrower fails or neglects to perform, keep, or observe
any other term, provision, condition, covenant or agreement contained in this
EXIM Agreement or any Loan Documents, and as to any default (other than those
specified in this Section 8) under such other term, provision, condition,
covenant or agreement that can be cured, has failed to cure the default within
ten (10) days after the occurrence thereof; provided, however, that if the
default cannot by its nature be cured within the ten (10) day period or cannot
after diligent attempts by Borrower be cured within such ten (10) day period,
and such default is likely to be cured within a reasonable time, then Borrower
shall have an additional period (which shall not in any case exceed thirty (30)
days) to attempt to cure such default, and within such reasonable time period
the failure to cure the default shall not be deemed an Event of Default (but no
Credit Extensions shall be made during such cure period). Grace periods provided
under this section shall not apply, among other things, to financial covenants
or any other covenants set forth in subsection (a) above;
8.3 Insolvency. (a) Borrower is unable to pay its debts (including
trade debts) as they become due or otherwise becomes insolvent; (b) Borrower
begins an Insolvency Proceeding; or (c) an Insolvency Proceeding is begun
against Borrower and not dismissed or stayed within forty-five (45) days (but no
Credit Extensions shall be made while of any of the conditions described in
clause (a) exist and/or until any Insolvency Proceeding is dismissed);
8.4 Domestic Default. The occurrence of an Event of Default under
the Domestic Loan Documents. The terms and provisions of Sections 6.2, 6.3, 6.4,
6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11 and Section 7 of the Domestic Agreement
(including the cure provisions for such Sections contained in Section 8.2
thereof) are hereby incorporated by reference and shall survive the termination
of the Domestic Agreement.
8.5 EXIM Guaranty. If the EXIM Guaranty ceases for any reason to
be in full force and effect, or if the EXIM Bank declares the EXIM Guaranty void
or revokes any obligations under the EXIM Guaranty.
9. BANK'S RIGHTS AND REMEDIES
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9.1 Rights and Remedies. While an Event of Default occurs and
continues Bank may, without notice or demand, do any or all of the following to
the extent not prohibited by applicable law:
(a) declare all Obligations immediately due and payable (but
if an Event of Default described in Section 8.3 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 EXIM Agreement or under any other agreement between Borrower
and Bank;
(c) demand that Borrower (i) deposit cash with Bank in an
amount equal to the aggregate amount of any Letters of Credit remaining undrawn,
as collateral security for the repayment of any future drawings under such
Letters of Credit, and Borrower shall forthwith deposit and pay such amounts,
and (ii) pay in advance all Letter of Credit fees scheduled to be paid or
payable over the remaining term of any Letters of Credit;
(d) settle or adjust disputes and claims directly with Account
Debtors for amounts on terms and in any order that Bank considers advisable,
notify any Person owing Borrower money of Bank's security interest in such
funds, and verify the amount of such account;
(e) make any payments and do any acts it considers necessary
or reasonable to protect the Collateral and/or its security interest in the
Collateral. Borrower shall assemble the Collateral if Bank requests 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;
(f) 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;
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(g) ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell the Collateral. Bank is hereby
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;
(h) place a "hold" on any account maintained with Bank and/or
deliver a notice of exclusive control, any entitlement order, or other
directions or instructions pursuant to any Control Agreement or similar
agreements providing control of any Collateral;
(i) demand and receive possession of Borrower's Books; and
(j) exercise all rights and remedies available to Bank under
the Loan Documents or at law or equity, including all remedies provided under
the Code (including disposal of the Collateral pursuant to the terms thereof).
9.2 Power of Attorney. Borrower hereby irrevocably appoints Bank
as its lawful attorney-in-fact, exercisable upon the occurrence and during the
continuance of an Event of Default, to: (a) endorse Borrower's name on any
checks or other forms of payment or security; (b) sign Borrower's name on any
invoice or ▇▇▇▇ of lading for any Account or drafts against Account Debtors; (c)
settle and adjust disputes and claims about the Accounts directly with Account
Debtors, for amounts and on terms Bank determines reasonable; (d) make, settle,
and adjust all claims under Borrower's insurance policies; (e) pay, contest or
settle any Lien, charge, encumbrance, security interest, and adverse claim in or
to the Collateral, or any judgment based thereon, or otherwise take any action
to terminate or discharge the same; and (f) transfer the Collateral into the
name of Bank or a third party as the Code permits. Borrower hereby appoints Bank
as its lawful attorney-in-fact to sign Borrower's name on any documents
necessary to perfect or continue the perfection of Bank's security interest
regardless of whether an Event of Default has occurred until all Obligations
have been satisfied in full and Bank is under no further obligation to make
Credit Extensions hereunder. Bank's foregoing 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 Protective Payments. If Borrower fails to obtain the insurance
called for by Section 6.5 or fails to pay any premium thereon or fails to pay
any other amount which Borrower is obligated to pay under this EXIM Agreement or
any other Loan Document, Bank may obtain such insurance or make such payment,
and all amounts so paid by Bank are Bank Expenses and immediately due and
payable, bearing interest at the then highest applicable rate, and secured by
the Collateral. Bank will make reasonable efforts to provide Borrower with
notice of Bank obtaining such insurance at the time it is obtained or within a
reasonable time thereafter. 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 Application of Payments and Proceeds. Unless an Event of
Default has occurred and is continuing, Bank may apply any funds in its
possession, whether from Borrower account balances, payments, or proceeds
realized as the result of any collection of Accounts or other disposition of the
Collateral, first, to Bank Expenses, including without limitation, the
reasonable costs, expenses, liabilities, obligations and attorneys' fees
incurred by Bank in the exercise of its rights under this EXIM Agreement;
second, to the interest due upon any of the Obligations; and third, to the
principal of the Obligations and any applicable fees and other charges, in such
order as Bank shall determine in its sole discretion. Any surplus shall be paid
to Borrower or other Persons legally entitled thereto; Borrower shall remain
liable to Bank for any deficiency. If an Event of Default has occurred and is
continuing, Bank may apply any funds in its possession, whether from Borrower
account balances, payments, proceeds realized as the result of any collection of
Accounts or other disposition of the Collateral, or otherwise, to the
Obligations in such order as Bank shall determine in its sole discretion. Any
surplus shall be paid to Borrower or to other Persons legally entitled thereto;
Borrower shall remain liable to Bank for any deficiency. If Bank, in its good
faith business judgment, directly or indirectly enters into a deferred payment
or other credit transaction with any purchaser at any sale of Collateral, Bank
shall have the option, exercisable at any time, of either reducing the
Obligations by the principal amount of the purchase price or deferring the
reduction of the Obligations until the actual receipt by Bank of cash therefor.
-8-
9.6 Bank's Liability for Collateral. So long as Bank complies with
reasonable banking practices regarding the safekeeping of the Collateral in the
possession or under the control of Bank, Bank shall not be liable or responsible
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.
9.7 No Waiver; Remedies Cumulative. Bank's failure, at any time or
times, to require strict performance by Borrower of any provision of this EXIM
Agreement or any other Loan Document shall not waive, affect, or diminish any
right of Bank thereafter to demand strict performance and compliance herewith or
therewith. No waiver hereunder shall be effective unless signed by Bank and then
is only effective for the specific instance and purpose for which it is given.
Bank's rights and remedies under this EXIM Agreement and the other Loan
Documents 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 in exercising any remedy is not a waiver, election, or
acquiescence.
9.8 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.
9.9 EXIM Direction. Upon the occurrence of an Event of Default,
EXIM Bank shall have right to (i) direct Bank to exercise the remedies specified
in Section 9.1 hereof and (ii) request that Bank accelerate the maturity of any
other loans to Borrower.
9.10 EXIM Notification. Bank has the right to immediately notify
EXIM Bank in writing if it has knowledge of any of the following events: (1) any
failure to pay any amount due under this EXIM Agreement; (2) the EXIM Borrowing
Base is less than the sum of the outstanding Credit Extensions; (3) any failure
to pay when due any amount payable to Bank under any Loan Documents owing by
Borrower to Bank; (4) the filing of an action for debtor's relief by, against or
on behalf of Borrower; or (5) any threatened or pending material litigation
against Borrower, or any material dispute involving Borrower.
If Bank sends a notice to EXIM Bank, Bank has the right to
send EXIM Bank a written report on the status of events covered by the notice
every thirty (30) days after the date of the original notification, until Bank
files a claim with EXIM Bank or the defaults have been cured (but no EXIM
Advances may be required during the cure period unless EXIM Bank gives its
written approval). If directed by EXIM Bank, Bank will have the right to
exercise any rights it may have against the Borrower to demand the immediate
repayment of all amount outstanding under the EXIM Loan Documents.
10. NOTICES
-------
All notices, consents, requests, approvals, demands, or other
communication (collectively, "Communication"), other than EXIM Advance requests
made pursuant to Section 3.4, by any party to this EXIM Agreement or any other
Loan Document must be in writing and be delivered or sent by facsimile at the
addresses or facsimile numbers listed below. Bank or Borrower may change its
notice address by giving the other party written notice thereof. Each such
Communication shall be deemed to have been validly served, given, or delivered:
(a) upon the earlier of actual receipt and three (3) Business Days after deposit
in the U.S. mail, registered or certified mail, return receipt requested, with
proper postage prepaid; (b) upon transmission, when sent by facsimile
transmission (with such facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
10); (c) one (1) Business Day after deposit with a reputable overnight courier
with all charges prepaid; or (d) when delivered, if hand-delivered by messenger,
all of which shall be addressed to the party to be notified and sent to the
address or facsimile number indicated below. EXIM Advance requests made pursuant
to Section 3.4 must be in writing and may be in the form of electronic mail,
delivered to Bank by Borrower at the e-mail address of Bank provided below and
shall be deemed to have been validly served, given, or delivered when sent (with
such electronic mail promptly confirmed by delivery of a copy by personal
delivery or United States mail as otherwise provided in this Section 10). Bank
or Borrower may change its address, facsimile number, or electronic mail address
by giving the other party written notice thereof in accordance with the terms of
this Section 10.
-9-
If to Borrower: Spire Corporation
Spire Semiconductor, LLC
Spire Solar, Inc.
Spire Biomedical, Inc.
c/o Spire Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇▇ Traurig LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esquire
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to Bank: Silicon Valley Bank
One Newton Executive Park, Suite 200
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Email: ▇▇▇▇▇▇@▇▇▇.▇▇▇
with a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: ▇▇▇.▇▇▇.▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
------------------------------------------
Massachusetts 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 Massachusetts; provided,
however, that nothing in this EXIM Agreement shall be deemed to operate to
preclude Bank from bringing suit or taking other legal action in any other
jurisdiction to realize on the Collateral or any other security for the
Obligations, or to enforce a judgment or other court order in favor of Bank.
Borrower expressly submits and consents in advance to such jurisdiction in any
action or suit commenced in any such court, and Borrower hereby waives any
objection that it may have based upon lack of personal jurisdiction, improper
venue, or forum non conveniens and hereby consents to the granting of such legal
or equitable relief as is deemed appropriate by such court. Borrower hereby
waives personal service of the summons, complaints, and other process issued in
such action or suit and agrees that service of such summons, complaints, and
other process may be made by registered or certified mail addressed to Borrower
at the address set forth in Section 10 of this EXIM Agreement and that service
so made shall be deemed completed upon the earlier to occur of Borrower's actual
receipt thereof or three (3) days after deposit in the U.S. mails, proper
postage prepaid. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREINABOVE,
BANK SHALL SPECIFICALLY HAVE THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST
BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION WHICH BANK
DEEMS NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO
OTHERWISE ENFORCE BANK'S RIGHTS AGAINST BORROWER OR ITS PROPERTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER AND BANK EACH WAIVE THEIR
RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED
UPON THIS EXIM AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION,
INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS.
-10-
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS EXIM
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. GENERAL PROVISIONS
------------------
12.1 Termination Prior to Revolving Line Maturity Date. This EXIM
Agreement may be terminated prior to the Revolving Line Maturity Date by
Borrower, effective three (3) Business Days after written notice of termination
is given to Bank. Notwithstanding any such termination, Bank's lien and security
interest in the Collateral shall continue until Borrower fully satisfies its
Obligations. If such termination is at Borrower's election (regardless of the
existence of any Event of Default), or at Bank's election due to the occurrence
and continuance of an Event of Default, Borrower shall pay to Bank, in addition
to the payment of any other expenses or fees then-owing, a termination fee in an
amount equal to one percent (1.00%) of the Revolving Line Amount (i.e. Fifty
Thousand Dollars ($50,000)); provided that no termination fee shall be charged
if the credit facility hereunder is replaced with a new facility from another
division of Silicon Valley Bank.
12.2 Successors and Assigns. This EXIM Agreement binds and is for
the benefit of the successors and permitted assigns of each party. Borrower may
not assign this EXIM Agreement or any rights or obligations 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 EXIM
Agreement and the other Loan Documents.
12.3 Indemnification. Borrower agrees to indemnify, defend and hold
Bank and EXIM Bank and each of its directors, officers, employees, agents,
attorneys, or any other Person affiliated with or representing Bank and/or EXIM
Bank (each, an "Indemnified Person") harmless against: (a) all obligations,
demands, claims, and liabilities (collectively, "Claims") 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 such Indemnified Person
from, following, or arising from transactions between Bank and Borrower
(including reasonable attorneys' fees and expenses), except for Claims and/or
losses directly caused by such Indemnified Person's gross negligence or willful
misconduct.
12.4 Time of Essence. Time is of the essence for the performance of
all Obligations in this EXIM Agreement.
12.5 Severability of Provisions. Each provision of this EXIM
Agreement is severable from every other provision in determining the
enforceability of any provision.
12.6 Correction of Loan Documents. Bank may correct patent errors
and fill in any blanks in the Loan Documents consistent with the agreement of
the parties.
12.7 Amendments in Writing; Integration. All amendments to this
EXIM Agreement must be in writing signed by both Bank and Borrower. This EXIM
Agreement and the Loan Documents represent the entire agreement about this
subject matter and supersede prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this EXIM Agreement and the Loan
Documents merge into this EXIM Agreement and the Loan Documents.
12.8 Counterparts. This EXIM 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 EXIM Agreement.
12.9 Survival. All covenants, representations and warranties made
in this EXIM Agreement continue in full force until this EXIM Agreement has
terminated pursuant to its terms and all Obligations (other than inchoate
indemnity obligations and any other obligations which, by their terms, are to
survive the termination of this EXIM Agreement) have been satisfied. The
obligation of Borrower in Section 12.3 to indemnify Bank shall survive until the
statute of limitations with respect to such claim or cause of action shall have
run.
12.10 Confidentiality. In handling any confidential information,
Bank shall exercise the same degree of care that it exercises for its own
proprietary information, but disclosure of information may be made: (a) to
Bank's Subsidiaries or Affiliates; (b) to prospective transferees or purchasers
of any interest in the Credit Extensions (provided, however, Bank shall use
commercially reasonable efforts to obtain any prospective transferee's or
purchaser's agreement to the terms of this provision that any prospective
transferee or purchaser shall have entered
-11-
into an agreement containing provisions substantially the same as those in this
Section 12.9); (c) as required by law, regulation, subpoena, or other order; (d)
to Bank's regulators or as otherwise required in connection with Bank's
examination or audit; (e) as Bank considers appropriate in exercising remedies
under the EXIM Loan Documents; and (f) to third-party service providers of Bank
so long as such service providers have executed a confidentiality agreement with
Bank with terms no less restrictive than those contained herein. Confidential
information does not include information that is either: (i) 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 (ii) is disclosed to Bank by a third
party, if Bank does not know that the third party is prohibited from disclosing
the information.
12.11 Borrower Liability. Either Borrower may, acting singly,
request Credit Extensions hereunder. Each Borrower hereby appoints the other as
agent for the other for all purposes hereunder, including with respect to
requesting Credit Extensions hereunder. Each Borrower hereunder shall be jointly
and severally obligated to repay all Credit Extensions made hereunder,
regardless of which Borrower actually receives said Credit Extension, as if each
Borrower hereunder directly received all Credit Extensions. Each Borrower waives
any suretyship defenses available to it under the Code or any other applicable
law. Each Borrower waives any right to require Bank to: (i) proceed against any
Borrower or any other Person; (ii) proceed against or exhaust any security; or
(iii) pursue any other remedy. Bank may exercise or not exercise any right or
remedy it has against any Borrower or any security it holds (including the right
to foreclose by judicial or non-judicial sale) without affecting any Borrower's
liability hereunder. Notwithstanding any other provision of this EXIM Agreement
or any other Loan Document, each Borrower irrevocably waives all rights that it
may have at law or in equity (including, without limitation, any law subrogating
Borrower to the rights of Bank under this EXIM Agreement) to seek contribution,
indemnification or any other form of reimbursement from any other Borrower, or
any other Person now or hereafter primarily or secondarily liable for any of the
Obligations, for any payment made by Borrower with respect to the Obligations in
connection with this EXIM Agreement, any other Loan Document or otherwise and
all rights that it might have to benefit from, or to participate in, any
security for the Obligations as a result of any payment made by Borrower with
respect to the Obligations in connection with this EXIM Agreement or otherwise
but only until such time as the Bank has been paid in full. Any agreement
providing for indemnification, reimbursement or any other arrangement prohibited
under this Section 12.11 shall be null and void. If any payment is made to a
Borrower in contravention of this Section 12.11, such Borrower shall hold such
payment in trust for Bank and such payment shall be promptly delivered to Bank
for application to the Obligations, whether matured or unmatured.
12.12 Right of Set Off. Borrower hereby grants to Bank, a lien,
security interest and right of set off as security for all Obligations to Bank,
whether now existing or hereafter arising upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Bank
(including a Bank subsidiary) or in transit to any of them. At any time after
the occurrence and during the continuance of an Event of Default, without demand
or notice, Bank may set off the same or any part thereof and apply the same to
any liability or obligation of Borrower even though unmatured and regardless of
the adequacy of any other collateral securing the Obligations. ANY AND ALL
RIGHTS TO REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY
OTHER COLLATERAL WHICH SECURES THE OBLIGATIONS, PRIOR TO EXERCISING ITS RIGHT OF
SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF BORROWER ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
12.13 EXIM Borrower Agreement; Cross-Collateralization;
Cross-Default; Conflicts. Both this EXIM Agreement and the EXIM Borrower
Agreement shall continue in full force and effect, and all rights and remedies
under this EXIM Agreement and the EXIM Borrower Agreement are cumulative. The
term "Obligations" as used in this EXIM Agreement and in the EXIM Borrower
Agreement shall include without limitation the obligation to pay when due all
loans made pursuant to the EXIM Borrower Agreement (the "EXIM Loans") and all
interest thereon and the obligation to pay when due all EXIM Advances made
pursuant to the terms of this EXIM Agreement and all interest thereon. Without
limiting the generality of the foregoing, the security interest granted herein
covering all "Collateral" as defined in this EXIM Agreement and as defined in
the EXIM Borrower Agreement shall secure all EXIM Loans and all EXIM Advances
and all interest thereon, and all other Obligations. Any Event of Default under
this EXIM Agreement shall also constitute a default under the EXIM Borrower
Agreement, and any default under the EXIM Borrower Agreement shall also
constitute an Event of Default under this EXIM Agreement. In the event Bank
assigns its rights under this EXIM Agreement and/or under any note evidencing
EXIM Loans and/or its rights under the EXIM Borrower Agreement and/or under any
note evidencing Advances, to any third party, including, without limitation, the
EXIM Bank, whether before or after the occurrence of any Event of Default, Bank
shall have the right (but not any obligation), in its sole discretion, to
allocate and apportion Collateral to the EXIM Borrower Agreement and/or note
assigned and to specify the priorities of the respective security interests in
such Collateral between itself and the assignee, all without notice to or
consent of the Borrower. Should any term of the EXIM Agreement conflict with any
term of the EXIM Borrower Agreement, the more restrictive term in either
agreement shall govern Borrower.
-12-
13. DEFINITIONS
-----------
13.1 Definitions. Except as otherwise defined, terms that are
capitalized in this EXIM Agreement shall have the meaning assigned in the
Domestic Agreement. As used in this EXIM Agreement, the following terms have the
following meanings:
"Availability Amount" is (a) the lesser of (i) the Revolving Line or
(ii) the EXIM Borrowing Base minus (b) the amount of all outstanding Letters of
Credit (including drawn but unreimbursed Letters of Credit), and minus (c) the
outstanding principal balance of any EXIM Advances.
"Bank" is defined in the preamble hereof.
"Borrower" is defined in the preamble hereof.
"Buyer" is defined in the EXIM Borrower Agreement.
"Capital Good" is defined in the EXIM Borrower Agreement.
"Country Limitation Schedule" is defined in the EXIM Borrower Agreement
"Credit Extension" is any EXIM Advance, Letter of Credit or any other
extension of credit by Bank for Borrower's benefit.
"Default Rate" is defined in Section 2.3(b).
"Domestic Agreement" is defined in Section 1.1(a).
"Domestic Loan Documents" is defined in Section 1.1(a).
"Domestic Revolving Line" means the Revolving Line, as such term is
defined in the Domestic Agreement.
"Effective Date" is May 31, 2009.
"Eligible EXIM Accounts" means Accounts arising in the ordinary course
of Borrower's business from Non-U.S. Account Debtors and that meet all
Borrower's representations and warranties in Section 5.3, conform in all
respects to the EXIM Borrower Agreement, are denominated in U.S. Dollars payable
in the United States and which Bank, in its good faith business judgment, shall
deem eligible for borrowing, without limiting the fact that the determination of
which Accounts are eligible for borrowing is a matter of Bank's good faith
business judgment (the "Minimum EXIM Eligibility Requirements") are the minimum
requirements for an Account to be an Eligible EXIM Account. Eligible EXIM
Accounts shall not include:
(a) Accounts that do not arise from the sale of Items in the ordinary
course of Borrower's business;
(b) Accounts that are not subject to a valid, perfected and enforceable
first priority security in favor of Bank;
(c) Accounts as to which any covenant, representation or warranty
contained in the Loan Documents relating to such Account has been
breached;
(d) Accounts that are not owned by the Borrower, or are subject to any
right, claim or interest of another party other than the Lien in favor
of the Bank;
(e) Accounts with respect to which an invoice has not been sent;
(f) Accounts generated by the sale or provision of defense articles or
services, subject to exceptions approved in writing by EXIM Bank;
-13-
(g) Accounts due and owing from a military Buyer, subject to exceptions
approved in writing by EXIM Bank;
(h) Accounts due and payable from a foreign Buyer located in a country
with which EXIM Bank is legally prohibited from doing business as set
forth on the Country Limitation Schedule, including Accounts (or the
appropriate pro-rata portion thereof) generated from Items exported to
a country that EXIM Bank may do business with as set forth in the
Country Limitation Schedule, which are re-exported to a country with
which EXIM Bank is legally prohibited from doing business as set forth
in the Country Limitation Schedule;
(i) Accounts that do not comply with the requirements of the Country
Limitation Schedule;
(j) Accounts that are due and payable more than one hundred eighty
(180) days from the date of invoice;
(k) Accounts that are not paid within sixty (60) calendar days from
their original due date unless insured through EXIM Bank export credit
insurance for comprehensive commercial and political risk, in which
case ninety (90) days shall apply;
(l) Accounts that arise from the sale of goods or performance of
services for an employee, stockholder, or Subsidiary of Borrower;
intra-company Accounts or any Accounts generated from a stockholder or
any Person with a controlling interest in Borrower or which shares
common controlling ownership with Borrower;
(m) Accounts that are backed by a letter of credit where the Items
covered by the subject letter of credit have not yet been shipped, or
where the covered services have not yet been provided;
(n) Accounts that Bank or EXIM Bank, in its reasonable judgment, deem
uncollectible or unacceptable, including, without limitation, finance
charges or late charges imposed on a foreign Buyer by Borrower as a
result of such foreign Buyer's past due status;
(o) Accounts denominated in non-U.S. Dollars, unless (i) subject to a
Foreign Currency Hedge Agreement; or (ii) pre-approved in writing by
EXIM Bank;
(p) Accounts that do not comply with the terms of sale as set forth by
EXIM Bank;
(q) Accounts due and payable from a Buyer who becomes unable to ▇▇▇ its
debts or whose ability to pay its debts becomes questionable, in the
sole discretion of Bank and/or EXIM Bank;
(r) Accounts arising from a ▇▇▇▇-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment or any other repurchase
or return basis or that are evidenced by chattel paper;
(s) Accounts for which the Items giving rise to such Accounts have not
been shipped to the Buyer or when the Items are services, such services
have not been performed or when the Export Order specifies a timing for
invoicing the Items other than shipment or performance and the Items
have not been invoiced in accordance with such terms of the Export
Order, or the Accounts do not otherwise represent a final sale;
(t) Accounts subject to any offset, deduction, defense, dispute, or
counterclaim, or the Buyer is also a creditor or supplier of the
Borrower, or the Accounts are contingent in any respect for any reason;
(u) Accounts for which Borrower has made any agreement with the Buyer
for any deduction therefrom except for discounts or allowances made in
the ordinary course of business for prompt payment, all of which
discounts or allowances are reflected in the calculation of the face
value of each respective invoice related thereto;
(v) Accounts for which any of the Items giving rise to such Accounts
have been returned, rejected or repossessed;
(w) Accounts that arise from the sale of Items that do not meet the
EXIM Bank fifty percent (50%) U.S. Content requirement; and
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(x) Accounts for which Bank or EXIM Bank, in each of its good faith
business judgment, determines collection to be doubtful.
Bank reserves the right at any time after the Effective Date to adjust
the Minimum EXIM Foreign Eligibility Requirements in its good faith business
judgment and establish new criteria to determine the foregoing.
"Eligible EXIM Inventory" means at any time, the aggregate of
Borrower's Inventory that (a) consists of (i) raw materials, (ii)
work-in-process and (iii) finished goods, in good, new, and salable condition,
which is not perishable, returned, consigned, obsolete, not sellable, damaged,
or defective, and is not comprised of demonstrative or custom inventory,
packaging or shipping materials, or supplies; (b) meets all applicable
governmental standards; (c) has been manufactured in compliance with the Fair
Labor Standards Act; (d) is not subject to any Liens, except the first priority
Liens granted or in favor of Bank under this Agreement or any of the other Loan
Documents; (e) is located at Borrower's principal place of business (or any
location permitted under Section 7.2 of the Domestic Loan Agreement), that is
intended for shipment outside the U.S., in each case that is subject to a valid
Export Order. In no event shall Eligible EXIM Inventory include any Inventory:
(a) that is not subject to a valid, perfected, and enforceable first
priority Lien in favor of the Bank;
(b) that is located at an address that has not been disclosed to the
lender in writing;
(c) that is not located in the United States, unless pre-approved by
EXIM Bank in writing;
(d) that is placed by the Borrower on consignment or held by the
Borrower on consignment;
(e) that is in the possession of a processor or bailee, or located on
premises leased or subleased to the Borrower, or on premises subject to a
mortgage in favor of a party other than the Bank, unless such processor or
bailee or lessor or sublessor or mortgagee (as applicable) of such premises has
executed and delivered all documentation which the Bank shall require to
evidence its priority with respect to such Inventory as well as its right to
gain access to such Inventory;
(f) that is produced in violation of the Fair Labor Standards Act or
subject to the "Hot Goods" provisions contained in 29 U.S. C. 215 or any
successor statute or section;
(g) as to which any covenant, representation, or warrant with respect
to such Inventory contained in the Loan Documents has been breached;
(h) that is an Item or is to be incorporated into Items that do not
meet 50% U.S. Content requirements;
(i) that is demonstration Inventory;
(j) that consists of proprietary software (i.e., software designed
solely for the Borrower's internal use and not intended for resale);
(k) that is damaged, obsolete, returned, defective, recalled or unfit
for further processing;
(l) that has previously been exported from the U.S.;
(m) that constitutes or will be incorporated into Items that
constitute, defense articles or services;
(n) that is an Item or will be incorporated into Items that will be
used in the construction, alteration, operation or maintenance of nuclear power,
enrichment, reprocessing, research or heavy water production facilities unless
with EXIM Bank's prior written consent;
(o) that is an Item or to be incorporated into Items destined for
shipment to a country with which EXIM Bank is legally prohibited from doing
business as designed in the current Country Limitation Schedule, or that the
Borrower has knowledge will be re-exported by a foreign Buyer to a country in
which EXIM Bank is legally prohibited from doing business;
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(p) that is an Item or is to be incorporated into Items destined for
shipment to a buyer in a country in which EXIM Bank coverage is not available
for commercial reasons as designated in the current Country Limitation Schedule,
unless and only to the extent that such Inventory is sold to the foreign Buyer
on terms of an irrevocable letter of credit confirmed by a bank acceptable to
EXIM Bank;
(q) that constitutes or is to be incorporated into Items whose sale
would result in an Account that would not be an Eligible Export-Related Account
Receivable;
(r) that is included as eligible inventory under any other credit
facility to which Borrower is a party; or
(s) that is, or is to be incorporated into, an Item that is a Capital
Good unless the transaction is in accordance with Section2 .14 "Economic Impact
Approval" of the Borrower Agreement.
Bank reserves the right at any time after the Effective Date to adjust
the Eligible EXIM Inventory requirements in its good faith business judgment and
establish new criteria to determine the foregoing.
"Eligible Export-Related Accounts Receivable" is defined in the EXIM
Borrower Agreement.
"Event of Default" is defined in Section 8.
"EXIM Advance" or "EXIM Advances" means an advance (or advances) under
the Revolving Line.
"EXIM Bank" means Export-Import Bank of the United States.
"EXIM Borrower Agreement" is defined in Section 2.7.
"EXIM Borrowing Base" is (a) ninety percent (90%) of Hedged Eligible
EXIM Accounts; plus (b) seventy-five percent (75%) of all other Eligible EXIM
Accounts billed in a Foreign Currency and not subject to a Foreign Currency
Hedge Agreement; plus (c) the lesser of fifty percent (50%) of the value of
Eligible Export Inventory (valued at the lower of cost or wholesale fair market
value) or Three Million Dollars ($3,000,000) provided, however, that in no event
shall Credit Extensions based on Eligible Export Inventory exceed the sum of
sixty percent (60%) of all outstanding Credit Extensions under this EXIM
Agreement plus the aggregate undrawn face value of all Letters of Credit, in
each case as determined by Bank from Borrower's most recent EXIM Borrowing Base
Certificate; provided, further, however, that Bank may decrease the foregoing
amounts and/or percentages in its good faith business judgment based on events,
conditions, contingencies, or risks which, as determined by Bank, may adversely
affect Collateral.
"EXIM Borrowing Base Certificate" is that certain certificate
describing the calculation of the EXIM Borrowing Base, provided to Borrower by
Bank.
"EXIM Guaranty" is defined in Section 2.5.
"EXIM Loans" is defined in Section 12.13.
"EXIM Note" is a certain Promissory Note of even date hereof, executed
by Borrower in connection with this EXIM Agreement.
"Export Order" is defined in the EXIM Borrower Agreement.
"Export-Related Accounts Receivable" is defined in the EXIM Borrower
Agreement.
"Export-Related General Intangibles" is defined in the EXIM Borrower
Agreement.
"Export-Related Inventory" is defined in the EXIM Borrower Agreement.
"Foreign Currency Hedge Agreement" means any agreement with respect to
any swap, hedge, forward, future or derivative transaction or option or similar
other similar agreement or arrangement, each of which is (i) for the purpose of
hedging the foreign currency fluctuation exposure associated with Borrower's
operations and Accounts, (ii) acceptable to Bank, in its reasonable discretion,
and (iii) not for speculative purposes.
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"Hedged Eligible EXIM Accounts" are Eligible EXIM Accounts in which (i)
all invoices are denominated in Dollars, or (ii) all invoices are in foreign
currencies that are subject to a Foreign Currency Hedge Agreement.
"Items" is defined in the EXIM Borrower Agreement.
"Letter of Credit" means a standby letter of credit issued by Bank or
another institution based upon an application, guarantee, indemnity or similar
agreement on the part of Bank as set forth in Section 2.1.2(a).
"Letter of Credit Application" is defined in Section 2.1.2(a).
"Loan Documents" are, collectively, this EXIM Agreement, the Perfection
Certificate, the Subordination Agreement, the Domestic Agreement, the Domestic
Loan Documents, the EXIM Borrower Agreement, the EXIM Guaranty, the EXIM Note,
any note, or notes or guaranties executed by Borrower and any other present or
future agreement between Borrower and/or for the benefit of Bank in connection
with this EXIM Agreement, all as amended, restated, or otherwise modified.
"Minimum EXIM Eligibility Requirements" is defined in the defined term
"Eligible EXIM Accounts".
"Obligations" are Borrower's obligation to pay when due any debts,
principal, interest, Bank Expenses and other amounts Borrower owes Bank now or
later, whether under this EXIM Agreement, the Domestic Agreement, the other Loan
Documents, or otherwise, including, without limitation, all obligations relating
to letters of credit, cash management services, if any, and foreign exchange
contracts, if any, and including interest accruing after Insolvency Proceedings
begin and debts, liabilities, or obligations of Borrower assigned to Bank, and
the performance of Borrower's duties under the Loan Documents.
"Perfection Certificate" is defined in Section 5.1.
"Prime Rate" is the greater of (i) six percent (6.00%) per annum, or
(ii) Bank's most recently announced "prime rate," even if it is not Bank's
lowest rate.
"Revolving Line" is an EXIM Advance or EXIM Advances in an aggregate
amount of up to Five Million Dollars ($5,000,000) outstanding at any time.
"Revolving Line Maturity Date" is May 31, 2010.
"Transfer" is defined in Section 7.1.
"U.S. Content" is defined in the EXIM Borrower Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this EXIM Agreement
to be executed as a sealed instrument under the laws of the Commonwealth of
Massachusetts as of the Effective Date.
BORROWER:
SPIRE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer Title: Treasurer and Chief Financial Officer
SPIRE SOLAR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer Title: Treasurer and Chief Financial Officer
SPIRE BIOMEDICAL, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer Title: Treasurer and Chief Financial Officer
SPIRE SEMICONDUCTOR, LLC f/k/a BANDWIDTH
SEMICONDUCTOR, LLC
By: Spire Corporation, a Massachusetts corporation, its
sole Member and Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Chief Executive Office Title: Treasurer and Chief Financial Officer
BANK:
SILICON VALLEY BANK
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Effective Date: June 22, 2009
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