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EXHIBIT 10.6
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GREYROCK CAPITAL
A Division of NationsCredit Commercial Corporation
$7,500,000 Term Loan
provided to
VIXEL CORPORATION
October 2, 1998
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1. Amendment to Loan Agreement between Greyrock Capital, a Division of
NationsCredit Commercial Corporation (formerly Greyrock Business Credit)
("Greyrock") and Vixel Corporation ("Borrower") dated October 2, 1998*.
2. Secured Promissory Note in the original principal amount of $7,500,000
made by Borrower to the order of Greyrock.
3. Warrant to Purchase Stock issued by Borrower to Greyrock.
4. Certified Resolution and Incumbency Certificate of Borrower.
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* Unless otherwise indicated, all documents are dated October 2, 1998.
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AMENDMENT TO LOAN DOCUMENTS
BORROWER: VIXEL CORPORATION
ADDRESS: 00000 XXXXXXXXXX XXXXXXX X.
XXXXXXX, XXXXXXXXXX 00000
DATE: OCTOBER 2, 1998
THIS AMENDMENT TO LOAN DOCUMENTS is entered into between GREYROCK
CAPITAL, a division of NationsCredit Commercial Corporation (formerly Greyrock
Business Credit) ("GBC"), whose address is 00000 Xxxxxxxx Xxxx., Xxxxx 000, Xxx
Xxxxxxx, XX 00000 and the borrower named above ("Borrower").
The Parties agree to amend the Loan and Security Agreement between them,
dated November 26, 1997 (as amended, the "Loan Agreement"), as follows,
effective on the date hereof. (This Amendment, the Loan Agreement, any prior
written amendments to said agreements signed by GBC and the Borrower, and all
other written documents and agreements between GBC and the Borrower are referred
to herein collectively as the "Loan Documents". Capitalized terms used but not
defined in this Amendment, shall have the meanings set forth in the Loan
Agreement.)
1. Term Loan. Section 1 of the Schedule, which presently reads as
follows:
"1. Credit Limit (Section 1.1): An amount not to exceed the
lesser of: (i) $5,000,000 at any one time outstanding; or (ii)
80% of the amount of Borrower's Eligible Receivables (as defined
in Section 8 above)."
is amended to read as follows:
"1. CREDIT LIMIT (Section 1.1): An amount not to exceed the
lesser of $12,500,000 or the sum of (a) and (b) below:
"(a) The unpaid principal balance of the Term Loan in
the original principal amount of $7,500,000 being made
concurrently herewith by GBC to Borrower (the `Term
Loan') and evidenced by the Secured Promissory Note
(`Term Note') made by Borrower to the order of GBC,
being executed and delivered to GBC concurrently
herewith; plus
"(b) Loans (the "Revolving Loans") in an amount not to
exceed the lesser of (i) $5,000,000 at any one time
outstanding, or (ii) 80% of the amount of Borrower's
Eligible Receivables (as defined in Section 8 above)
"The Term Loan shall be made concurrently, in one disbursement.
GBC shall have no obligation to disburse the Term Loan if, at
the date of the disbursement, any Event of Default or event
which, with notice or passage of time or both, would constitute
an Event of Default has occurred and is continuing.
"The Term Loan shall bear interest and be repayable on the terms
set forth in the Term Note. The Term Loan once repaid may not be
reborrowed. The Term Loan and the Revolving Loans constitute
`Loans' for all purposes of this Agreement."
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GREY ROCK CAPITAL AMENDMENT TO LOAN DOCUMENTS
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2. Interest-Revolving Loans. The portion of Section 2 of the Schedule,
which presently reads as follows:
"(ii) the interest charged for each month in which there are any
Loans outstanding shall be a minimum of $6,000 (regardless of
the amount of the Loans outstanding), and (iii) the interest
charged for each month in which there are no Loans outstanding
shall be $2,000 (even though there are no Loans outstanding)."
is amended to read as follows:
"(ii) the interest with respect to Revolving Loans charged for
each month in which there are any Revolving Loans outstanding
shall be a minimum of $6,000 (regardless of the amount of the
Revolving Loans outstanding), and (iii) the interest with
respect to Revolving Loans charged for each month in which there
are no Revolving Loans outstanding shall be $2,000 (even though
there are no Revolving Loans outstanding)."
3. Extension. The date "NOVEMBER 30, 1998" in Section 4 of the Schedule
is hereby amended by replacing said date with the date "SEPTEMBER 30, 1999."
Borrower may request an extension of such maturity date from September 30, 1999
to December 31, 1999, but any such extension shall be a matter of GBC's sole
discretion and any such extension shall only be granted in a written agreement
signed by GBC. In the event GBC grants such extension, GBC agrees not to charge
an additional fee for the same.
4. Fee; Warrants. In consideration for GBC entering into this Amendment
and making the Term Loan, the Borrower shall (i) concurrently pay GBC a fee in
the amount of $112,500, and (ii) on or before November 25, 1998, provide GBC
with five-year warrants to purchase 100,000 shares of Series E Preferred stock
of the Borrower, on the terms set forth in the Warrant to Purchase Stock
attached hereto as Exhibit A, at $10.00 per share. Said fee and warrants shall
be deemed fully earned on the date hereof, shall be in addition to all interest
and other fees, and shall be non-refundable. GBC is authorized to deduct the
foregoing fee from the proceeds of the Term Loan.
5. Representations True. Borrower represents and warrants to GBC that
all representations and warranties set forth in the Loan Agreement, as amended
hereby, are true and correct, except as set forth in Schedule A hereto. GBC
hereby waives any Event of Default (as defined in the Loan Agreement ) arising
by reason of the matters set forth on Schedule A hereto or the failure of
Borrower to notify GBC of the same, provided that Borrower shall (i) cure the
breaches set forth in Section 3.8 of Schedule A on or before November 30, 1998,
and (ii) cure the breaches set forth in Section 5.2 of Schedule A on or before
October 31, 1998. The foregoing waiver shall not extend to any other default or
Event of Default, whether or not similar to the foregoing, including without
limitation any future breach of any of the covenants or matters set forth on
Schedule A..
6. General Provisions. This Amendment, the Loan Agreement, and the other
Loan Documents set forth in full all of the representations and agreements of
the parties with respect to the subject matter hereof and supersede all prior
discussions, representations, agreements and understandings between the parties
with respect to the subject hereof. Except as herein expressly amended, all of
the terms and provisions of the Loan Agreement and the other Loan Documents
shall continue in full force and effect and the same are hereby ratified and
confirmed.
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GREY ROCK CAPITAL AMENDMENT TO LOAN DOCUMENTS
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Borrower: GBC:
VIXEL CORPORATION Greyrock Capital, a Division of
Nationscredit Commercial Corporation
By /s/ Xxxxxxx X. Xxxxxxxx
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President or Vice President By /s/ Xxxx Xxxxxx
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Title Vice President
By /s/ Xxxxx C. T. Linfield
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Secretary or Ass't Secretary
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[GREYROCK LOGO]
SECURED PROMISSORY NOTE
$7,500,000. LOS ANGELES, CALIFORNIA October 2, 1998
FOR VALUE RECEIVED, the undersigned (the Borrower) promises to pay to the
order of GREYROCK CAPITAL, a division of NationsCredit Commercial Corporation
(formerly Greyrock Business Credit) (Greyrock) at 00000 Xxxxxxxx Xxxx. Xxxxx
000, Xxx Xxxxxxx, XX 00000, or at such other address as the holder of this Note
shall direct, the principal sum of $7,500,000, or such lesser amount as may
represent the unpaid principal balance of the Term Loan made by Greyrock to
Borrower pursuant to the Loan and Security Agreement between the Borrower and
Greyrock dated NOVEMBER 26, 1997 (as amended, the Loan Agreement), payable on
the earlier of the following dates (the Maturity Date): (i) SEPTEMBER 30, 1999,
or (ii) the date the Loan Agreement terminates by its terms or is terminated by
either party in accordance with its terms. On the Maturity Date the entire
remaining unpaid principal balance of this Note, plus any and all accrued and
unpaid interest, shall be due and payable.
This Note shall bear interest on the unpaid principal balance hereof from
time to time outstanding at a rate equal to the following: The interest rate in
effect throughout each calendar month during the term of this Note shall be the
highest LIBOR Rate in effect during such month, plus 4.75% per annum, provided
that the interest rate in effect in each month shall not be less than 8% per
annum. Interest shall be calculated on the basis of a 360-day year for the
actual number of days elapsed. LIBOR Rate has the meaning set forth in the Loan
Agreement.
Accrued interest on this Note shall be payable monthly, in addition to the
principal payments provided above, commencing on OCTOBER 31, 1998, and
continuing on the last day of each succeeding month. Any accrued interest not
paid when due (including any cure period provided in the Loan Agreement) shall
bear interest at the same rate as the principal hereunder.
Principal of and interest on this Note shall be payable in lawful money of
the United States of America. If a payment hereunder becomes due and payable on
a Saturday, Sunday or legal holiday, the due date thereof shall be extended to
the next succeeding business day, and interest shall be payable thereon during
such extension.
In the event any payment of principal or interest on this Note is not paid
in full when due (including any cure period provided in the Loan Agreement), or
if any other default or event of default occurs and is continuing hereunder,
under the Loan Agreement or under any other present or future instrument,
document, or agreement between the Borrower and Greyrock (collectively, Events
of Default), Greyrock may, at its option, at any time thereafter, declare the
entire unpaid principal balance of this Note plus all accrued interest to be
immediately due and payable, without notice or demand. The acceptance of any
installment of principal or interest by Greyrock after the time when it becomes
due, as herein specified, shall not be held to establish a custom, or to waive
any rights of Greyrock to enforce payment when due of any further installments
or any other rights, nor shall any failure or delay to exercise any rights be
held to waive the same.
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GREYROCK CAPITAL SECURED PROMISSORY NOTE
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All payments hereunder are to be applied first to costs and fees referred
to hereunder, second to the payment of accrued interest and the remaining
balance to the payment of principal. Greyrock shall have the continuing and
exclusive right to apply or reverse and reapply any and all payments hereunder.
The Borrower agrees to pay all reasonable costs and expenses (including
without limitation attorney's fees) incurred by Greyrock in connection with or
related to this Note, or its enforcement, whether or not suit be brought, as
authorized in the Loan Agreement. The Borrower hereby waives presentment,
demand for payment, notice of dishonor, notice of nonpayment, protest, notice
of protest, and any and all other notices and demands in connection with the
delivery, acceptance, performance, default, or enforcement of this Note, and
the Borrower hereby waives the benefits of any statute of limitations with
respect to any action to enforce, or otherwise related to, this Note.
This Note is secured by the Loan Agreement and all other present and
future security agreements between the Borrower and Greyrock. Nothing herein
shall be deemed to limit any of the terms or provisions of the Loan Agreement
or any other present or future document, instrument or agreement, between the
Borrower and Greyrock, and all of Greyrock's rights and remedies hereunder and
thereunder are cumulative.
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable, the same shall not
affect any other provision of this Note and the remaining provisions of this
Note shall remain in full force and effect.
No waiver or modification of any of the terms or provisions of this Note
shall be valid or binding unless set forth in a writing signed by a duly
authorized officer of Greyrock, and then only to the extent therein
specifically set forth.
GREYROCK AND BORROWER EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (I)
THIS NOTE; OR (II) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN
GREYROCK AND BORROWER; OR (III) ANY CONDUCT, ACTS OR OMISSIONS OF GREYROCK OR
BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR
ANY OTHER PERSONS AFFILIATED WITH GREYROCK OR BORROWER; IN EACH OF THE
FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
This Note is payable in, and shall be governed by the laws of, the State
of California.
VIXEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
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President
By: /s/ Xxxxx C.T. Linfield
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Secretary
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND
MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE
APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL
(WHICH MAY BE COMPANY COUNSEL) IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
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WARRANT TO PURCHASE STOCK
WARRANT TO PURCHASE 100,000 ISSUE DATE: NOVEMBER 25, 1998
SHARES OF THE SERIES E PREFERRED EXPIRATION DATE: NOVEMBER 25, 2003
STOCK OF VIXEL CORPORATION INITIAL EXERCISE PRICE: $10.00 PER SHARE
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other
good and valuable consideration, GREYROCK CAPITAL, A DIVISION OF NATIONSCREDIT
COMMERCIAL CORPORATION (FORMERLY GREYROCK BUSINESS CREDIT) ("Holder") is
entitled to purchase the number of fully paid and non-assessable shares of the
class of securities (the "Shares") of the corporation (the "Company") at the
initial exercise price per Share (the "Warrant Price") all as set forth above
and as adjusted pursuant to Article 2 of this Warrant, subject to the provisions
and upon the terms and conditions set forth in this Warrant, and subject further
to Section 1.7 hereof.
ARTICLE 1. EXERCISE.
1.1 METHOD OF EXERCISE. Holder may exercise this Warrant by delivering a
duly executed Notice of Exercise in substantially the form attached as Appendix
1 to the principal office of the Company. Unless Holder is exercising the
conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.
1.2 CONVERSION RIGHT. In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon exercise
of this Warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant Section 1.4.
1.3 FAIR MARKET VALUE. If the Shares are traded in a public market, the
fair market value of the Shares shall be the closing price of the Shares (or the
closing price of the Company's stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares are not traded in a public market, the
Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgment. The foregoing notwithstanding, if Holder advises
the Board of Directors in writing that Holder disagrees with such determination,
then the Company and Holder shall promptly agree upon a reputable investment
banking firm to undertake such valuation. If the valuation of such investment
banking firm is more than ten percent (10%) greater than that determined by the
Board of Directors, then all fees and expenses of such investment banking firm
shall be paid by the Company. In all other circumstances, such fees and expenses
shall be paid by Holder.
1.4 DELIVERY OF CERTIFICATE AND NEW WARRANT. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.5 REPLACEMENT OF WARRANTS. On receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or
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mutilation of this Warrant and, in the case of loss, theft or destruction, on
delivery of an indemnity agreement reasonably satisfactory in form and amount to
the Company or, in the case of mutilation, or surrender and cancellation of this
Warrant, the Company at its expense shall execute and deliver, in lieu of this
Warrant, a new warrant of like tenor.
1.6 REPURCHASE ON SALE, MERGER OR CONSOLIDATION OF THE COMPANY.
1.6.1. "ACQUISITION". For the purpose of this Warrant, "Acquisition"
means any sale, license, or other disposition of all or substantially all of the
assets of the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
1.6.2. ASSUMPTION OF WARRANT. If upon the closing of any Acquisition the
successor entity assumes the obligations of this Warrant, then this Warrant
shall be exercisable for the same securities, cash, and property as would be
payable for the Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for the
Acquisition and subsequent closing. The Warrant Price shall be adjusted
accordingly.
1.6.3. NONASSUMPTION. If upon the closing of any Acquisition the
successor entity does not assume the obligations of this Warrant and Holder has
not otherwise exercised this Warrant in full, then the unexercised portion of
this Warrant shall be deemed to have been automatically converted pursuant to
Section 1.2 and thereafter Holder shall participate in the acquisition on the
same terms as other holders of the same class of securities of the Company.
1.7. REDEMPTION EVENT; WARRANT FOR COMMON SHARES AT HOLDER'S OPTION;
CONVERSION RATE APPLIES. If at the time the Holder intends to exercise this
Warrant a redemption of Series E Preferred shares of the Company is then slated
to occur or is occurring under the terms and provisions of subsection 6 of
section D of Article IV of the Restated Certificate of Incorporation of the
Company dated February __, 1998, then this Warrant, at the sole option of the
Holder, shall be considered to be exercisable for the same number of shares of
common stock of the Company as stated above regarding the number of shares of
Series E Preferred of the Company as modified by the most recent per share
conversion rate applicable to the Series E Preferred stock of the Company as set
forth in the certificate of incorporation of the Company; the per share exercise
price for such common shares shall be the same as is set forth above with
respect to the Series E Preferred stock of the Company.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 STOCK DIVIDENDS, SPLITS, ETC. If the Company declares or pays a
dividend on its common stock (or the Shares if the Shares are securities other
than common stock) payable in common stock, or other securities, subdivides the
outstanding common stock into a greater amount of common stock, or, if the
Shares are securities other than common stock, subdivides the Shares in a
transaction that increases the amount of common stock into which the Shares are
convertible, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record
as of the date the dividend or subdivision occurred.
2.2 RECLASSIFICATION, EXCHANGE OR SUBSTITUTION. Upon any
reclassification, exchange, substitution, or other event that results in a
change of the number and/or class of the securities issuable upon exercise or
conversion of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities and property
that Holder would have received for the Shares if this Warrant had been
exercised immediately before such reclassification, exchange, substitution, or
other event. Such an event shall include any automatic conversion of the
outstanding or issuable securities of the Company of the same class or series as
the Shares to common stock pursuant to the terms of the Company's Certificate of
Incorporation upon the closing of a registered public offering of the Company's
common stock. The Company or its successor shall promptly issue to Holder a new
Warrant for such new securities or other property. The new Warrant shall provide
for adjustments which
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shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 2 including, without limitation, adjustments to the Warrant
Price and to the number of securities or property issuable upon exercise of the
new Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other events.
2.3 ADJUSTMENTS FOR COMBINATIONS, ETC. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased.
2.4 ADJUSTMENTS FOR DILUTING ISSUANCES. The Warrant Price and the number
of Shares issuable upon exercise of this Warrant or, if the Shares are Preferred
Stock, the number of shares of common stock issuable upon conversion of the
Shares, shall be subject to adjustment for "Dilutive Issuances" as set forth in
the Restated Certificate of Incorporation.
2.5 NO IMPAIRMENT. The Company shall not, by amendment of its Articles
of Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out of all the provisions of this Article 2 and
in taking all such action as may be necessary or appropriate to protect Holder's
rights under this Article against impairment. If the Company takes any action
affecting the Shares or its common stock other than as described above that
adversely affects Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of Shares issuable upon exercise of this
Warrant shall be adjusted upward in such a manner that the aggregate Warrant
Price of this Warrant is unchanged.
2.6 FRACTIONAL SHARES. No fractional Shares shall be issuable upon
exercise or conversion of the Warrant and the number of Shares to be issued
shall be rounded down to the nearest whole Share. If a fractional share interest
arises upon any exercise or conversion of the Warrant, the Company shall
eliminate such fractional share interest by paying Holder an amount computed by
multiplying the fractional interest by the fair market value of a full Share.
2.7 ADJUSTMENTS. Holder shall be entitled to the same rights with
respect to notices regarding adjustments as provided to the holders of Series E
Preferred Stock as set forth in the Company's Restated Certificate of
Incorporation.
2.8 NO RIGHTS AS SHAREHOLDERS. This Warrant does not entitle Holder to
any voting rights or other rights as a stockholder of the Company prior to the
exercise of the Holder's rights to purchase Preferred Stock as provided for
herein.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1 REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Holder as follows:
All Shares which may be issued upon the exercise of the purchase right
represented by this Warrant, and all securities, if any, issuable upon
conversion of the Shares, shall, upon issuance, be duly authorized, validly
issued, fully paid and non-assessable, and free of any liens and encumbrances
except for restrictions on transfer provided for herein or under applicable
federal and state securities laws.
3.2 NOTICE OF CERTAIN EVENTS. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of common stock; (d) to
merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up; or (e) offer holders of registration rights the opportunity
to participate in an underwritten public offering of the company's securities
for cash, then, in connection with each such event, the Company shall give
Holder (1) at least 20 days prior written notice of the date on which a record
will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of
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common stock will be entitled thereto) or for determining rights to vote, if
any, in respect of the matters referred to in (c) and (d) above; (2) in the case
of the matters referred to in (c) and (d) above at least 20 days prior written
notice of the date when the same will take place (and specifying the date on
which the holders of common stock will be entitled to exchange their common
stock for securities or other property deliverable upon the occurrence of such
event); and (3) in the case of the matter referred to in (e) above, the same
notice as is given to the holders of such registration rights.gma
3.3 REGISTRATION AND INFORMATION RIGHTS. Substantially concurrently with
the issuance of this Warrant, the Company shall cause its Amended and Restated
Investors' Rights Agreement to be amended to make the Shares "Registrable
Securities" thereunder and Holder a "Holder" thereunder. By acceptance of this
Warrant, Holder shall be deemed a party to the Agreement and shall execute
counterpart signature pages thereto at the request of the Company.
ARTICLE 4. REPRESENTATIONS AND COVENANTS OF HOLDER. This Warrant has
been entered into by the Company in reliance upon the following representations
and covenants of Holder, which by its acceptance hereof the Holder hereby
confirms:
4.1 INVESTMENT PURPOSE. The right to acquire Preferred Stock or the
Preferred Stock issuable upon exercise of Holder's rights contained herein will
be acquired for investment and not with a view to the sale or distribution of
any part thereof, and the Holder has no present intention of selling or engaging
in any public distribution of the same except pursuant to a registration or
exemption.
4.2 PRIVATE ISSUE. Holder understands (i) that the Preferred Stock
issuable upon exercise of the Warrantholder's rights contained herein is
not registered under the 1933 Act or qualified under applicable state
securities laws on the ground that the issuance contemplated by this
Warrant Agreement will be exempt from the registration and
qualifications requirements thereof, and (ii) that the Company's
reliance on such exemption is predicated on the representations set
forth in this Section 4.
4.3 FINANCIAL RISK. Holder has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits
and risks of its investment and has the ability to bear the economic
risks of its investment.
4.4 RISK OF NO REGISTRATION. Holder understands that if the Company does
not register with the Securities and Exchange Commission pursuant to
Section 12 of the 1933 Act, or file reports pursuant to Section 15(d) of
the Securities Exchange Act of 1934 (the "1934 Act"), or if a
registration statement covering the securities under the 1933 Act is not
in effect when it desires to sell (i) the rights to purchase Preferred
Stock pursuant to this Warrant Agreement, or (ii) the Preferred Stock
issuable upon exercise of the right to purchase, it may be required to
hold such securities for an indefinite period. The Holder also
understands that any sale of the rights of the Holder to purchase
Preferred Stock which might be made by it in reliance upon Rule 144
under the 1933 Act may be made only in accordance with the terms and
conditions of that Rule.
4.5 ACCREDITED INVESTOR. Holder is an "accredited investor" within the
meaning of Rule 501 of Regulation D under the Act, as presently in
effect.
ARTICLE 5. MISCELLANEOUS.
5.1 TERM: NOTICE OF EXPIRATION. This Warrant is exercisable, in whole or
in part, at any time and from time to time on or before the Expiration Date set
forth above.
5.2 LEGENDS. This Warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER THE SECURITIES LAWS OF
ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND
RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT
AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL
(WHICH MAY BE COMPANY COUNSEL) IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
TO THE EFFECT THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT
AND ANY APPLICABLE STATE SECURITIES LAWS.
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5.3 COMPLIANCE WITH SECURITIES LAWS ON TRANSFER. This Warrant and the
Shares issuable upon exercise of this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, if reasonably
requested by the Company). The Company shall not require Holder to provide an
opinion of counsel if the transfer is to an affiliate of Holder or if there is
no material question as to the availability of current information as referenced
in Rule 144(c), Holder represents that it has complied with Rule 144(d) and (e)
in reasonable detail, the selling broker represents that it has complied with
Rule 144(f), and the Company is provided with a copy of Holders notice of
proposed sale.
5.4 TRANSFER PROCEDURE. Subject to the provisions of Section 5.2 and
5.3, Holder may transfer all or part of this Warrant or the Shares issuable upon
exercise of this Warrant (or the securities issuable, directly or indirectly,
upon conversion of the Shares, if any) by giving the Company notice of the
portion of the Warrant being transferred setting forth the name, address and
taxpayer identification number of the transferee and surrendering this Warrant
to the Company for reissuance to the transferee(s) (and Holder if applicable).
Unless the Company is filing financial information with the SEC pursuant to the
Securities Exchange Act of 1934, the Company shall have the right to refuse to
transfer any portion of this Warrant to any person who directly competes with
the Company.
5.5 NOTICES. All notices and other communications from the Company to
the Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such holder from time
to time.
5.6 WAIVER. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
5.7 ATTORNEYS FEES. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
5.8 GOVERNING LAW. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
its principles regarding conflicts of law.
VIXEL CORPORATION
BY /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------------------
CHAIRMAN OF THE BOARD, PRESIDENT OR VICE PRESIDENT
BY /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
SECRETARY OR ASS'T SECRETARY
-0-
00
XXXXXXXX XXXXXXX XXXXXXX TO PURCHASE STOCK
--------------------------------------------------------------------------------
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ____________ shares of the
Common/Series ____ Preferred [strike one] Stock of __________ pursuant to the
terms of the attached Warrant, and tenders herewith payment of the purchase
price of such shares in full.
1. The undersigned hereby elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the Warrant. This conversion
is exercised with respect to _______ of the Shares covered by the Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
--------------------------
(Name)
--------------------------
--------------------------
(Address)
3. The undersigned represents it is acquiring the shares solely
for its own account and not as a nominee for any other party and not with a view
toward the resale or distribution thereof except in compliance with applicable
securities laws.
-------------------------------------
(Signature)
-------------------------------------
(Date)
-6-
13
[GREYROCK LOGO]
CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
BORROWER: VIXEL CORPORATION, A CORPORATION
ORGANIZED UNDER THE LAWS OF THE STATE OF DELAWARE
DATE: OCTOBER 2, 1998
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and
that said resolutions are still in full force and effect and have not been in
any way modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation borrow from Greyrock Capital, a division
of NationsCredit Commercial Corporation (formerly Greyrock Business
Credit) ("Greyrock") ("Greyrock"), from time to time, such sum or sums of
money as, in the judgment of the officer or officers hereinafter
authorized hereby, this corporation may require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she
is hereby authorized, directed and empowered, in the name of this
corporation, to execute and deliver to Greyrock, and Greyrock is requested
to accept, the loan agreements, security agreements, notes, financing
statements, and other documents and instruments providing for such loans
and evidencing and/or securing such loans, with interest thereon, and said
authorized officers are authorized from time to time to execute renewals,
extensions and/or amendments of said loan agreements, security agreements,
and other documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all
indebtedness of this corporation to Greyrock, whether arising pursuant to
this resolution or otherwise, to grant, transfer, pledge, mortgage,
assign, or otherwise hypothecate to Greyrock, or deed in trust for its
benefit, any property of any and every kind, belonging to this
corporation, including, but not limited to, any and all real property,
accounts, inventory, equipment, general intangibles, instruments,
documents, chattel paper, notes, money, deposit accounts, furniture,
fixtures, goods, and other property of every kind, and to execute and
deliver to Greyrock any and all grants, transfers, trust receipts, loan or
credit agreements, pledge agreements, mortgages, deeds of trust, financing
statements, security agreements and other hypothecation agreements, which
said instruments and the note or notes and other instruments referred to
in the preceding paragraph may contain such provisions, covenants,
recitals and agreements as Greyrock may require and said authorized
officers may approve, and the execution thereof by said authorized
officers shall be conclusive evidence of such approval; and that Greyrock
may conclusively rely upon a certified copy of these resolutions and a
certificate of the Secretary or Ass't Secretary of this corporation as to
the officers of this corporation and their offices and signatures, and
continue to conclusively rely on such certified copy of these resolutions
and said certificate for all past, present and future transactions until
written notice of any change hereto or thereto is given to Greyrock by
this corporation by certified mail, return receipt requested.
Stock Purchase Warrants.
RESOLVED FURTHER, that, in connection with the foregoing loans, this
corporation shall issue to Greyrock warrants to purchase 100,000 shares of
SERIES E PREFERRED stock of this corporation, at $10.00 per share, on the
terms and provisions of Greyrock's standard form Warrant to Purchase Stock
and related documents, with such changes therein as Greyrock and this
corporation shall agree; any officer of this corporation is hereby
authorized to execute and deliver such Warrant to Purchase Stock and
related documents, and all documents and instruments relating thereto, in
such form and containing such additional provisions as said authorized
officers may approve, and the execution thereof by said authorized
officers shall be conclusive evidence of such approval.
14
GREYROCK CAPITAL CERTIFIED RESOLUTION
--------------------------------------------------------------------------------
The undersigned further hereby certifies that the following persons are the duly
elected and acting officers of the corporation named above as borrower and that
the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
----- --------- -----------------
XXXXXXX X. XXXXXXXX CEO & PRESIDENT x /s/ XXXXXXX X. XXXXXXXX
------------------------
XXXXX C. T. LINFIELD SECRETARY x /s/ XXXXX C. T. LINFIELD
------------------------
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or Assistant
Secretary on the date set forth above.
/s/ XXXXX C. T. LINFIELD
---------------------------------
Secretary or Assistant Secretary
-2-
15
--------------------------------------------------------------------------------
[LOGO]
LOAN AND SECURITY AGREEMENT
BORROWER: VIXEL CORPORATION
ADDRESS: 00000 XXXXXXXXXX XXXXXXX X., XXXXX 000
XXXXXXX, XXXXXXXXXX 00000
DATE: NOVEMBER 26, 1997
This Loan and Security Agreement is entered into on the above date between
GREYROCK BUSINESS CREDIT, a Division of NationsCredit Commercial Corporation
("GBC"), whose address is 00000 Xxxxxxxx Xxxx. Xxxxx 000, Xxx Xxxxxxx, XX 00000
and the borrower named above ("Borrower"), whose chief executive office is
located at the above address ("Borrower's Address"). The Schedule to this
Agreement (the "Schedule") being signed concurrently is an integral part of this
Agreement. (Definitions of certain terms used in this Agreement are set forth in
Section 8 below.)
1. LOANS.
1.1 LOANS. GBC will make loans to Borrower (the "Loans"), in amounts
determined by GBC in its * up to the amounts (the "Credit Limit") shown on the
Schedule, provided no Default or Event of Default has occurred and is
continuing. If at any time or for any reason the total of all outstanding Loans
and all other Obligations exceeds the Credit Limit, Borrower shall immediately
pay the amount of the excess to GBC, without notice or demand.
*GOOD FAITH BUSINESS JUDGMENT
1.2 INTEREST. All Loans and all other monetary Obligations shall bear interest
at the rate shown on the Schedule, except where expressly set forth to the
contrary in this Agreement or in another written agreement signed by GBC and
Borrower. Interest shall be payable monthly, on the last day of the month.
Interest may, in GBC's discretion, be charged to Borrower's loan account, and
the same shall thereafter bear interest at the same rate as the other Loans.
1.3 FEES. Borrower shall pay GBC the fee(s) shown on the Schedule, which are
in addition to all interest and other sums payable to GBC and are not
refundable.
2. SECURITY INTEREST.
2.1 SECURITY INTEREST. To secure the payment and performance of all of the
Obligations when due, Borrower hereby grants to GBC a security interest in all
of Borrower's interest in the following, whether now owned or hereafter
acquired, and wherever located (collectively, the "Collateral"): All Inventory,
Equipment, Receivables, and General Intangibles, including, without limitation,
all of Borrower's Deposit Accounts, all money, all collateral in which GBC is
granted a security interest pursuant to any other present or future agreement,
all property now or at any time in the future in GBC's possession, and all
proceeds (including proceeds of any insurance policies, proceeds of proceeds and
claims against third parties), all products of the foregoing, and all books and
records related to any of the foregoing.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
In order to induce GBC to enter into this Agreement and to make Loans,
Borrower represents and warrants to GBC as follows, and Borrower covenants that
the following representations will continue to be true, and that Borrower will
at all times comply with all of the following covenants:
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower, if a corporation, is and will
continue to be, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation. Borrower is and will continue to
be qualified and licensed to do business in all jurisdictions in which any
failure to do so would have a material adverse effect on Borrower. The
execution, delivery and performance by Borrower of this Agreement, and all other
documents contemplated hereby (i) have been duly and validly authorized, (ii)
are enforceable against Borrower in accordance with their terms (except as
enforcement may be limited by equitable principles and by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors'
rights generally), (iii) do not violate Borrower's articles or certificate of
incorporation, or Borrower's by-laws, or any law or any material agreement or
instrument which is binding upon Borrower or its property, and (iv) do not
constitute grounds for acceleration of any material indebtedness or obligation
under any material agreement or instrument which is binding upon Borrower or its
property.
3.2 NAME; TRADE NAMES AND STYLES. The name of Borrower set forth in the
heading to this Agreement is its correct name. Listed on the Schedule are all
prior names of Borrower and all of Borrower's present and prior trade names.
Borrower shall give GBC 30 days' prior written notice before changing its name
or doing business under any other name. Borrower has complied, and will in the
-1-
16
GREYROCK BUSINESS CREDIT
LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Page 2
future comply, with all laws relating to the conduct of business under a
fictitious business name.
3.3 PLACE OF BUSINESS; LOCATION OF COLLATERAL. The address set forth in the
heading to this Agreement is Borrower's chief executive office. In addition,
Borrower has places of business and Collateral is located only at the locations
set forth on the Schedule. Borrower will give GBC at least 30 days prior written
notice before opening any additional place of business, changing its chief
executive office, or moving any of the Collateral to a location other than
Borrower's Address or one of the locations set forth on the Schedule.
3.4 TITLE TO COLLATERAL; PERMITTED LIENS. Borrower is now, and will at all
times in the future be, the sole owner of all the Collateral, except for items
of Equipment which are leased by Borrower. The Collateral now is and will remain
free and clear of any and all liens, charges, security interests, encumbrances
and adverse claims, except for Permitted Liens. GBC now has, and will continue
to have, a first-priority perfected and enforceable security interest in all of
the Collateral, subject only to the Permitted Liens, and Borrower will at all
times defend GBC and the Collateral against all claims of others. Borrower is
not and will not become a lessee under any real property lease pursuant to which
the lessor may obtain any rights in any of the Collateral and no such lease now
prohibits, restrains, impairs or will prohibit, restrain or impair Borrower's
right to remove any Collateral from the leased premises. Whenever any Collateral
is located upon premises in which any third party has an interest (whether as
owner, mortgagee, beneficiary under a deed of trust, lien or otherwise),
Borrower shall, whenever requested by GBC, use its best efforts to cause such
third party to execute and deliver to GBC, in form acceptable to GBC, such
waivers and subordinations as GBC shall specify, so as to ensure that GBC's
rights in the Collateral are, and will continue to be, superior to the rights of
any such third party. Borrower will keep in full force and effect, and will
comply with all the terms of, any lease of real property where any of the
Collateral now or in the future may be located.
3.5 MAINTENANCE OF COLLATERAL. Borrower will maintain the Collateral in good
working condition, ordinary wear and tear excepted, and Borrower will not use
the Collateral for any unlawful purpose. Borrower will immediately advise GBC in
writing of any material loss or damage to the Collateral.
3.6 BOOKS AND RECORDS. Borrower has maintained and will maintain at Borrower's
Address complete and accurate books and records, comprising an accounting system
in accordance with generally accepted accounting principles.
3.7 FINANCIAL CONDITION, STATEMENTS AND REPORTS. All financial statements now
or in the future delivered to GBC have been, and will be, prepared in conformity
with generally accepted accounting principles and now and in the future will
completely and fairly reflect the financial condition of Borrower, at the times
and for the periods therein stated *. Between the last date covered by any such
statement provided to GBC and the date hereof, there has been no material
adverse change in the financial condition or business of Borrower.
* , SUBJECT TO NORMAL YEAR-END ACCRUALS AND AUDIT ADJUSTMENTS
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. Borrower has timely
filed, and will timely file, all tax returns and reports required by applicable
law, and Borrower has timely paid, and will timely pay, all applicable taxes,
assessments, deposits and contributions now or in the future owed by Borrower.
Borrower may, however, defer payment of any contested taxes, provided that
Borrower (i) in good faith contests Borrower's obligation to pay the taxes by
appropriate proceedings promptly and diligently instituted and conducted, (ii)
notifies GBC in writing of the commencement of, and any material development in,
the proceedings, and (iii) posts bonds or takes any other steps required to keep
the contested taxes from becoming a lien upon any of the Collateral. Borrower is
unaware of any claims or adjustments proposed for any of Borrower's prior tax
years which could result in additional taxes becoming due and payable by
Borrower. Borrower has paid, and shall continue to pay all amounts necessary to
fund all present and future pension, profit sharing and deferred compensation
plans in accordance with their terms, and Borrower has not and will not withdraw
from participation in, permit partial or complete termination of, or permit the
occurrence of any other event with respect to, any such plan which could result
in any liability of Borrower, including any liability to the Pension Benefit
Guaranty Corporation or any other governmental agency. Borrower shall, at all
times, utilize the services of an outside payroll service providing for the
automatic deposit of all payroll taxes payable by Borrower.
3.9 COMPLIANCE WITH LAW. Borrower has complied, and will comply, in all
material respects, with all provisions of all applicable laws and regulations,
including, but not limited to, those relating to Borrower's ownership of real or
personal property, the conduct and licensing of Borrower's business, and all
environmental matters.
3.10 LITIGATION. Except as disclosed in the Schedule, there is no claim, suit,
litigation, proceeding or investigation pending or (to best of Borrower's
knowledge) threatened by or against or affecting Borrower in any court or before
any governmental agency (or any basis therefor known to Borrower) which may
result, either separately or in the aggregate, in any material adverse change in
the financial condition or business of Borrower, or in any material impairment
in the ability of Borrower to carry on its business in substantially the same
manner as it is now being conducted. Borrower will promptly inform GBC in
writing of any claim, proceeding, litigation or investigation in the future
threatened or instituted by or against Borrower involving any single claim of *
or more, or involving ** or more in the aggregate.
17
GREYROCK BUSINESS CREDIT
LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Page 3
*$100,000 **$200,000
3.11 USE OF PROCEEDS. All proceeds of all Loans shall be used solely for
lawful business purposes.
4. RECEIVABLES.
4.1 REPRESENTATIONS RELATING TO RECEIVABLES. Borrower represents and warrants
to GBC as follows: Each Receivable with respect to which Loans are requested by
Borrower shall, on the date each Loan is requested and made, represent an
undisputed, bona fide, existing, unconditional obligation of the Account Debtor
created by the sale, delivery, and acceptance of goods or the rendition of
services, in the ordinary course of Borrower's business.
4.2 REPRESENTATIONS RELATING TO DOCUMENTS AND LEGAL COMPLIANCE. Borrower
represents and warrants to GBC as follows: All statements made and all unpaid
balances appearing in all invoices, instruments and other documents evidencing
the Receivables are and shall be true and correct and all such invoices,
instruments and other documents and all of Borrower's books and records are and
shall be genuine and in all respects what they purport to be, and all
signatories and endorsers have the capacity to contract. All sales and other
transactions underlying or giving rise to each Receivable shall comply with all
applicable laws and governmental rules and regulations. All signatures and
indorsements on all documents, instruments, and agreements relating to all
Receivables are and shall be genuine, and all such documents, instruments and
agreements are and shall be legally enforceable in accordance with their terms.
4.3 SCHEDULES AND DOCUMENTS RELATING TO RECEIVABLES. Borrower shall deliver to
GBC transaction reports and loan requests, schedules of all Receivables, and
schedules of collections, all on GBC's standard forms; provided, however, that
Borrower's failure to execute and deliver the same shall not affect or limit
GBC's security interest and other rights in all of Borrower's Receivables, nor
shall GBC's failure to advance or lend against a specific Receivable affect or
limit GBC's security interest and other rights therein. Together with each such
schedule, or later if requested by GBC, Borrower shall furnish GBC with copies
(or, at GBC's request, originals) of all contracts, orders, invoices, and other
similar documents, and all original shipping instructions, delivery receipts,
bills of lading, and other evidence of delivery, for any goods the sale or
disposition of which gave rise to such Receivables, and Borrower warrants the
genuineness of all of the foregoing. Borrower shall also furnish to GBC an aged
accounts receivable trial balance in such form and at such intervals as GBC
shall request. In addition, Borrower shall deliver to GBC the originals of all
instruments, chattel paper, security agreements, guarantees and other documents
and property evidencing or securing any Receivables, immediately upon receipt
thereof and in the same form as received, with all necessary indorsements.
4.4 COLLECTION OF RECEIVABLES. Borrower shall have the right to collect all
Receivables, unless and until a Default or an Event of Default has occurred *.
Borrower shall hold all payments on, and proceeds of, Receivables in trust for
GBC, and Borrower shall deliver all such payments and proceeds to GBC, within
one business day after receipt of the same, in their original form, duly
endorsed, to be applied to the Obligations in such order as GBC shall determine.
* AND IS CONTINUING
4.5 DISPUTES. Borrower shall notify GBC promptly of all disputes or claims
relating to Receivables on the regular reports to GBC. Borrower shall not
forgive, or settle any Receivable for less than payment in full, or agree to do
any of the foregoing, except that Borrower may do so, provided that: (i)
Borrower does so in good faith, in a commercially reasonable manner, in the
ordinary course of business, and in arm's length transactions, which are
reported to GBC on the regular reports provided to GBC; (ii) no Default or Event
of Default has occurred and is continuing; and (iii) taking into account all
such settlements and forgiveness, the total outstanding Loans and other
Obligations will not exceed the Credit Limit.
4.6 RETURNS. Provided no Event of Default has occurred and is continuing, if
any Account Debtor returns any Inventory to Borrower in the ordinary course of
its business, Borrower shall promptly determine the reason for such return and
promptly issue a credit memorandum to the Account Debtor in the appropriate
amount (sending a copy to GBC). In the event any attempted return occurs after
the occurrence of any Event of Default *, Borrower shall (i) not accept any
return without GBC's prior written consent, (ii) hold the returned Inventory in
trust for GBC, (iii) segregate all returned Inventory from all of Borrower's
other property, (iv) conspicuously label the returned Inventory as GBC's
property, and (v) immediately notify GBC of the return of any Inventory,
specifying the reason for such return, the location and condition of the
returned Inventory, and on GBC's request deliver such returned Inventory to GBC.
* WHICH IS CONTINUING
4.7 VERIFICATION. GBC may, from time to time, verify directly with the
respective Account Debtors the validity, amount and other matters relating to
the Receivables, by means of mail, telephone or otherwise, either in the name of
Borrower or GBC or such other name as GBC may choose, and GBC or its designee
may, at any time, notify Account Debtors that it has a security interest in the
Receivables.
4.8 NO LIABILITY. GBC shall not under any circumstances be responsible or
liable for any shortage or discrepancy in, damage to, or loss or destruction of,
any goods, the sale or other disposition of which gives rise to a Receivable, or
for any error, act, omission, or delay of any kind occurring in the settlement,
failure to settle, collection or failure to collect any Receivable, or for
settling any Receivable in good faith for less than the full amount thereof, nor
shall GBC be deemed to be responsible for any of Borrower's obligations under
any contract or agreement giving rise to a Receivable. Nothing herein shall,
however, relieve GBC from liability for its own gross negligence or willful
misconduct.
18
GREYROCK BUSINESS CREDIT
LOAN AND SECURITY AGREEMENT
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Page 4
5. ADDITIONAL DUTIES OF THE BORROWER.
5.1 INSURANCE. Borrower shall, at all times, insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to GBC, in such form and amounts as *, and
Borrower shall provide evidence of such insurance to GBC, so that GBC is
satisfied that such insurance is, at all times, in full force and effect. All
such insurance policies shall name GBC as an additional loss payee, and shall
contain a lenders loss payee endorsement in form reasonably acceptable to GBC.
Upon receipt of the proceeds of any such insurance **, GBC shall apply such
proceeds in reduction of the Obligations as GBC shall determine in its sole
discretion, except that, provided no Default or Event of Default has occurred
and is continuing, GBC shall release to Borrower insurance proceeds with respect
to Equipment totaling less than $100,000, which shall be utilized by Borrower
for the replacement of the Equipment with respect to which the insurance
proceeds were paid. GBC may require reasonable assurance that the insurance
proceeds so released will be so used. If Borrower fails to provide or pay for
any insurance, GBC may, but is not obligated to, obtain the same at Borrower's
expense. Borrower shall promptly deliver to GBC copies of all reports made to
insurance companies.
* ARE CUSTOMARY IN BORROWER'S BUSINESS
** SUBJECT TO THE RIGHTS OF THE HOLDER OF THE SVB LIENS (AS DEFINED IN SECTION
8 BELOW)
5.2 REPORTS. Borrower, at its expense, shall provide GBC with the written
reports set forth in the Schedule, and such other written reports with respect
to Borrower (including budgets, sales projections, operating plans and other
financial documentation), as GBC shall from time to time reasonably specify.
5.3 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At reasonable times, and on one
business day's notice, GBC, or its agents, shall have the right to inspect the
Collateral, and the right to audit and copy Borrower's books and records. GBC
shall take reasonable steps to keep confidential all information obtained in any
such inspection or audit, but GBC shall have the right to disclose any such
information to its auditors, regulatory agencies, and attorneys, and pursuant to
any subpoena or other legal process. The foregoing inspections and audits shall
be at Borrower's expense and the charge therefor shall be $600 per person per
day (or such higher amount as shall represent GBC's then current standard charge
for the same), plus reasonable out-of-pockets expenses. Borrower shall not be
charged more than $3,000 per audit (plus reasonable out-of-pockets expenses),
nor shall audits be done more frequently than four times per calendar year,
provided that the foregoing limits shall not apply after the occurrence of a
Default or Event of Default *, nor shall they restrict GBC's right to conduct
audits at its own expense (whether or not a Default or Event of Default has
occurred). Borrower will not enter into any agreement with any accounting firm,
service bureau or third party to store Borrower's books or records at any
location other than Borrower's Address, without first obtaining GBC's written
consent, which may be conditioned upon such accounting firm, service bureau or
other third party agreeing to give GBC the same rights with respect to access to
books and records and related rights as GBC has under this Agreement.
* WHICH IS CONTINUING
5.4 REMITTANCE OF PROCEEDS. All proceeds arising from the sale or other
disposition of any Collateral shall be delivered, in kind, by Borrower to GBC in
the original form in which received by Borrower not later than the following
business day after receipt by Borrower, to be applied to the Obligations in such
order as GBC shall determine; provided that, if no Default or Event of Default
has occurred and is continuing, and if no term loan is outstanding hereunder,
then Borrower shall not be obligated to remit to GBC the proceeds of the sale of
Equipment which is sold in the ordinary course of business, in a good-faith
arm's length transaction. Except for the proceeds of the sale of Equipment as
set forth above, Borrower shall not commingle proceeds of Collateral with any of
Borrower's other funds or property, and shall hold such proceeds separate and
apart from such other funds and property and in an express trust for GBC.
Nothing in this Section limits the restrictions on disposition of Collateral set
forth elsewhere in this Agreement.
5.5 NEGATIVE COVENANTS. Except as may be permitted in the Schedule, Borrower
shall not, without GBC's prior written consent, do any of the following: (i)
merge or consolidate with another corporation or entity; (ii) acquire any
assets, except in the ordinary course of business; (iii) enter into any other
transaction outside the ordinary course of business; (iv) sell or transfer any
Collateral, except that, provided no Default or Event of Default has occurred
and is continuing, Borrower may (a) sell finished Inventory in the ordinary
course of Borrower's business, and (b) sell Equipment in the ordinary course of
business, in good-faith arm's length transactions; (v) store any Inventory or
other Collateral with any warehouseman or other third party; (vi) sell any
Inventory on a sale-or-return, guaranteed sale, consignment, or other contingent
basis; (vii) make any loans of any money or other assets *; (viii) incur any
debts, outside the ordinary course of business, which would have a material,
adverse effect on Borrower or on the prospect of repayment of the Obligations
**; (ix) guarantee or otherwise become liable with respect to the obligations of
another party or entity; (x) pay or declare any dividends on Borrower's stock
(except for dividends payable solely in stock of Borrower); (xi) redeem, retire,
purchase or otherwise acquire, directly or indirectly, any of Borrower's
stock***; (xii) make any change in Borrower's capital structure which would have
a material adverse effect on Borrower or on the prospect of repayment of the
Obligations; or (xiii) dissolve or elect to dissolve; or (xiv) agree to do any
of the foregoing.
* OTHER THAN: (i) EXTENSIONS OF CREDIT IN THE NATURE OF ACCOUNTS RECEIVABLE OR
NOTES RECEIVABLE ARISING FROM THE SALE OR LEASE OF GOODS OR SERVICES IN THE
ORDINARY COURSE OF BUSINESS; (ii) INVESTMENTS (INCLUDING DEBT OBLIGATIONS)
RECEIVED IN CONNECTION WITH THE BANKRUPTCY OR REORGANIZATION OF CUSTOMERS OR
SUPPLIERS AND IN SETTLEMENT OF DELINQUENT OBLIGATIONS
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OF, AND OTHER DISPUTES WITH, CUSTOMERS OR SUPPLIERS ARISING IN THE ORDINARY
COURSE OF BUSINESS; AND (iii) INVESTMENTS CONSISTING OF (a) COMPENSATION OF
EMPLOYEES, OFFICERS AND DIRECTORS OF BORROWER SO LONG AS THE BOARD OF DIRECTORS
OF BORROWER DETERMINES THAT SUCH COMPENSATION IS IN THE BEST INTERESTS OF
BORROWER, (b) TRAVEL ADVANCES, EMPLOYEE RELOCATION LOANS AND OTHER EMPLOYEE
LOANS AND ADVANCES IN THE ORDINARY COURSE OF BUSINESS, (c) LOANS TO EMPLOYEES,
OFFICERS OR DIRECTORS RELATING TO THE PURCHASE OF EQUITY SECURITIES OF BORROWER,
(d) OTHER LOANS TO OFFICERS AND EMPLOYEES DULY AUTHORIZED BY THE BOARD OF
DIRECTORS
** OTHER THAN THE FOLLOWING (THE "PERMITTED INDEBTEDNESS"): (i) INDEBTEDNESS
OF BORROWER IN FAVOR OF GBC ARISING UNDER THIS AGREEMENT; (ii) THE EXISTING
INDEBTEDNESS OF THE BORROWER; (iii) INDEBTEDNESS TO TRADE CREDITORS, INCLUDING,
WITHOUT LIMITATION, AFFILIATES OF BORROWER, INCURRED IN THE ORDINARY COURSE OF
BUSINESS; (iv) OTHER INDEBTEDNESS OF BORROWER, NOT EXCEEDING $250,000 IN THE
AGGREGATE OUTSTANDING AT ANY TIME; (v) CONTINGENT OBLIGATIONS OF BORROWER
CONSISTING OF GUARANTEES (AND OTHER CREDIT SUPPORT) OF THE OBLIGATIONS OF
VENDORS AND SUPPLIERS OF BORROWER IN RESPECT OF TRANSACTIONS ENTERED INTO IN THE
ORDINARY COURSE OF BUSINESS; (vi) INDEBTEDNESS WITH RESPECT TO CAPITAL LEASE
OBLIGATIONS AND INDEBTEDNESS SECURED BY PERMITTED LIENS; (vii) GUARANTEES OF
EXISTING INDEBTEDNESS ASSOCIATED WITH THE "TRANSACTIONS" SET FORTH IN THE
SCHEDULE; (viii) EXTENSIONS, RENEWALS, REFUNDINGS, REFINANCINGS, MODIFICATIONS,
AMENDMENTS AND RESTATEMENTS OF ANY OF THE ITEMS OF PERMITTED INDEBTEDNESS (i)
THROUGH (vii) ABOVE, PROVIDED THAT THE PRINCIPAL AMOUNT THEREOF IS NOT INCREASED
OR THE TERMS THEREOF ARE NOT MODIFIED TO IMPOSE MORE BURDENSOME TERMS UPON
BORROWER
*** , PROVIDED THAT THE BORROWER MAY REDEEM OR REPURCHASE ITS SECURITIES IN
CONNECTION WITH ANY AGREEMENT APPROVED BY THE BORROWER'S BOARD OF DIRECTORS,
BETWEEN THE BORROWER AND ANY OFFICER, DIRECTOR, EMPLOYEE OR CONSULTANT, THAT THE
BORROWER ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS WHEREIN THE BORROWER IS
OBLIGATED OR ENTITLED TO REPURCHASE FROM SUCH OFFICER, DIRECTOR, EMPLOYEE OR
CONSULTANT SHARES OF EQUITY SECURITIES OF THE BORROWER UPON SUCH PERSON'S
TERMINATION OF EMPLOYMENT OR SERVICES OR OTHER EVENT; PROVIDED THAT THE TOTAL
AMOUNT OF SUCH REDEMPTIONS AND REPURCHASES SHALL NOT EXCEED $250,000 IN ANY
FISCAL YEAR (EXCEPT THAT SUCH DOLLAR LIMIT SHALL NOT APPLY TO REDEMPTIONS AND
REPURCHASES IN CONNECTION WITH THE ARCXEL ACQUISITION (AS DEFINED IN SECTION 7
OF THE SCHEDULE).
5.6 LITIGATION COOPERATION. Should any third-party suit or proceeding be
instituted by or against GBC with respect to any Collateral or in any manner
relating to Borrower, Borrower shall, without expense to GBC, make available
Borrower and its officers, employees and agents, and Borrower's books and
records, without charge, to the extent that GBC may deem them reasonably
necessary in order to prosecute or defend any such suit or proceeding.
5.7 NOTIFICATION OF CHANGES. Borrower will promptly notify GBC in writing of
any change in its * officers or directors, the opening of any new bank account
or other deposit account, and any material adverse change in the business or
financial affairs of Borrower.
* EXECUTIVE
5.8 FURTHER ASSURANCES. Borrower agrees, at its expense, on request by GBC, to
execute all documents and take all actions, as GBC may deem reasonably necessary
or useful in order to perfect and maintain GBC's perfected security interest in
the Collateral, and in order to fully consummate the transactions contemplated
by this Agreement.
5.9 INDEMNITY. Borrower hereby agrees to indemnify GBC and hold GBC harmless
from and against any and all claims, debts, liabilities, demands, obligations,
actions, causes of action, penalties, costs and expenses (including attorneys'
fees), of every nature, character and description, which GBC may sustain or
incur based upon or arising out of any of the Obligations, any actual or alleged
failure to collect and pay over any withholding or other tax relating to
Borrower or its employees, any relationship or agreement between GBC and
Borrower, any actual or alleged failure of GBC to comply with any writ of
attachment or other legal process relating to Borrower or any of its property,
or any other matter, cause or thing whatsoever occurred, done, omitted or
suffered to be done by GBC relating to Borrower or the Obligations (except any
such amounts sustained or incurred as the result of the gross negligence or
willful misconduct of GBC or any of its directors, officers, employees, agents,
attorneys, or any other person affiliated with or representing GBC).
Notwithstanding any provision in this Agreement to the contrary, the indemnity
agreement set forth in this Section shall survive any termination of this
Agreement and shall for all purposes continue in full force and effect.
6. TERM.
6.1 MATURITY DATE. This Agreement shall continue in effect until the maturity
date set forth on the Schedule (the "Maturity Date"); provided that the Maturity
Date shall automatically be extended, and this Agreement shall automatically and
continuously renew, for successive additional terms of one year each, unless one
party gives written notice to the other, not less than sixty days prior to the
next Maturity Date, that such party elects to terminate this Agreement effective
on the next Maturity Date.
6.2 EARLY TERMINATION. This Agreement may be terminated prior to the Maturity
Date as follows: (i) by Borrower, effective three business days after written
notice of termination is given to GBC; or (ii) by GBC at any time after the
occurrence * of an Event of Default, effective immediately**. If this Agreement
is terminated by Borrower or by GBC under this Section 6.2, Borrower shall pay
to GBC a termination fee (the "Termination Fee") in the amount shown on the
Schedule. The Termination Fee shall be due and payable on the effective date of
termination and thereafter shall bear interest at a rate equal to the highest
rate applicable to any of the Obligations.
* AND DURING THE CONTINUATION
** WITH ONLY REASONABLY PROMPT, SUBSEQUENT NOTICE
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6.3 PAYMENT OF OBLIGATIONS. On the Maturity Date or on any earlier effective
date of termination, Borrower shall pay and perform in full all Obligations,
whether evidenced by installment notes or otherwise, and whether or not all or
any part of such Obligations are otherwise then due and payable. Without
limiting the generality of the foregoing, if on the Maturity Date, or on any
earlier effective date of termination, there are any outstanding letters of
credit issued based upon an application, guarantee, indemnity or similar
agreement on the part of GBC, then on such date Borrower shall provide to GBC
cash collateral in an amount equal to 110% of the face amount of all such
letters of credit plus all interest, fees and costs due or (in GBC's estimation)
likely to become due in connection therewith, to secure all of the Obligations
relating to said letters of credit, pursuant to GBC's then standard form cash
pledge agreement. Notwithstanding any termination of this Agreement, all of
GBC's security interests in all of the Collateral and all of the terms and
provisions of this Agreement shall continue in full force and effect until all
Obligations have been paid and performed in full; provided that, without
limiting the fact that Loans are subject to the discretion of GBC, GBC may, in
its sole discretion, refuse to make any further Loans after termination. No
termination shall in any way affect or impair any right or remedy of GBC, nor
shall any such termination relieve Borrower of any Obligation to GBC, until all
of the Obligations have been paid and performed in full. Upon payment and
performance in full of all the Obligations and termination of this Agreement,
GBC shall promptly deliver to Borrower termination statements, requests for
reconveyances and such other documents as may be reasonably required to
terminate GBC's security interests.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and Borrower shall give
GBC immediate written notice thereof: (a) Any warranty, representation,
statement, report or certificate made or delivered to GBC by Borrower or any of
Borrower's officers, employees or agents, now or in the future, shall be untrue
or misleading in a material respect+++; or (b) Borrower shall fail to pay any
Loan or any interest thereon or any other monetary Obligation* ; or (c) the
total Loans and other Obligations outstanding at any time shall exceed the
Credit Limit + ; or (d) Borrower shall fail to perform any non-monetary
Obligation which by its nature cannot be cured; or (e) Borrower shall fail to
perform any other non-monetary Obligation, which failure is not cured within 5
++ business days after the date performance is due; or (f) any levy, assessment,
attachment, seizure, lien or encumbrance (other than a Permitted Lien) is made
on all or any part of the Collateral which is not cured within 10 days after the
occurrence of the same; or (g) any default or event of default occurs under any
obligation secured by a Permitted Lien, which is not cured within any applicable
cure period or waived in writing by the holder of the Permitted Lien; or (h)
Borrower breaches any material contract or obligation, which has or may
reasonably be expected to have a material adverse effect on Borrower's business
or financial condition; or (i) dissolution, termination of existence, insolvency
or business failure of Borrower or any Guarantor; or appointment of a receiver,
trustee or custodian, for all or any part of the property of, assignment for the
benefit of creditors by, or the commencement of any proceeding by Borrower or
any Guarantor under any reorganization, bankruptcy, insolvency, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, now or in the future in effect; or (j) the commencement of any
proceeding against Borrower or any Guarantor under any reorganization,
bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, now or in the future in effect,
which is not cured by the dismissal thereof within 45 days after the date
commenced; or (k) revocation or termination of, or limitation or denial of
liability upon, any guaranty of the Obligations or any attempt to do any of the
foregoing; or (l) revocation or termination of, or limitation or denial of
liability upon, any pledge of any certificate of deposit, securities or other
property or asset pledged by any third party to secure any or all of the
Obligations, or any attempt to do any of the foregoing, or commencement of
proceedings by or against any such third party under any bankruptcy or
insolvency law; or (m) Borrower makes any payment on account of any indebtedness
or obligation which has been subordinated to the Obligations other than as
permitted in the applicable subordination agreement, or if any Person who has
subordinated such indebtedness or obligations terminates or in any way limits or
terminates its subordination agreement; or (n) there shall be a change in the
record or beneficial ownership of an aggregate of more than **** of the
outstanding shares of stock of Borrower, in one or more transactions, compared
to the ownership of outstanding shares of stock of Borrower in effect on the
date hereof, without the prior written consent of GBC; or (o) Borrower shall
generally not pay its debts as they become due, or Borrower shall conceal,
remove or transfer any part of its property, with intent to hinder, delay or
defraud its creditors, or make or suffer any transfer of any of its property
which ** be fraudulent under any bankruptcy, fraudulent conveyance or similar
law; or (p) there shall be a material adverse change in Borrower's business or
financial condition. GBC may cease making any Loans hereunder during any of the
above cure periods, and thereafter if an Event of Default has occurred*** .
+ IF SUCH EXCESS IS NOT PAID TO GBC WITHIN FIVE BUSINESS DAYS AFTER THE DATE
SUCH EXCESS OCCURRED
++ TEN (10)
+++ WHEN MADE
* , WITHIN FIVE BUSINESS DAYS AFTER THE DATE DUE,
** IS REASONABLY LIKELY TO
*** AND IS CONTINUING
****50%
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7.2 REMEDIES. Upon the occurrence and during the continuance of any Event of
Default, and at any time thereafter *, GBC, at its option, and without notice or
demand of any kind (all of which are hereby expressly waived by Borrower), may
do any one or more of the following: (a) Cease making Loans or otherwise
extending credit to Borrower under this Agreement or any other document or
agreement; (b) Accelerate and declare all or any part of the Obligations to be
immediately due, payable, and performable, notwithstanding any deferred or
installment payments allowed by any instrument evidencing or relating to any
Obligation; (c) Take possession of any or all of the Collateral wherever it may
be found, and for that purpose Borrower hereby authorizes GBC without judicial
process to enter onto any of Borrower's premises without interference to search
for, take possession of, keep, store, or remove any of the Collateral, and
remain on the premises or cause a custodian to remain on the premises in
exclusive control thereof, without charge + for so long as GBC ** deems it
necessary in order to complete the enforcement of its rights under this
Agreement or any other agreement; provided, however, that should GBC seek to
take possession of any of the Collateral by Court process, Borrower hereby
irrevocably waives: (i) any bond and any surety or security relating thereto
required by any statute, court rule or otherwise as an incident to such
possession; (ii) any demand for possession prior to the commencement of any suit
or action to recover possession thereof; and (iii) any requirement that GBC
retain possession of, and not dispose of, any such Collateral until after trial
or final judgment; (d) Require Borrower to assemble any or all of the Collateral
and make it available to GBC at places designated by GBC which are reasonably
convenient to GBC and Borrower, and to remove the Collateral to such locations
as GBC may ** deem advisable; (e) Complete the processing, manufacturing or
repair of any Collateral prior to a disposition thereof and, for such purpose
and for the purpose of removal, GBC shall have the right to use Borrower's
premises, vehicles, hoists, lifts, cranes, equipment and all other property
without charge; (f) Sell, lease or otherwise dispose of any of the Collateral,
in its condition at the time GBC obtains possession of it or after further
manufacturing, processing or repair, at one or more public and/or private sales,
in lots or in bulk, for cash, exchange or other property, or on credit, and to
adjourn any such sale from time to time without notice other than oral
announcement at the time scheduled for sale. GBC shall have the right to conduct
such disposition on Borrower's premises without charge +, for such time or times
as GBC deems reasonable, or on GBC's premises, or elsewhere and the Collateral
need not be located at the place of disposition. GBC may directly or through any
affiliated company purchase or lease any Collateral at any such public
disposition, and if permissible under applicable law, at any private
disposition. Any sale or other disposition of Collateral shall not relieve
Borrower of any liability Borrower may have if any Collateral is defective as to
title or physical condition or otherwise at the time of sale; (g) Demand payment
of, and collect any Receivables and General Intangibles comprising Collateral
and, in connection therewith, Borrower irrevocably authorizes GBC to endorse or
sign Borrower's name on all collections, receipts, instruments and other
documents, to take possession of and open mail addressed to Borrower and remove
therefrom payments made with respect to any item of the Collateral or proceeds
thereof, and, in GBC's *** discretion, to grant extensions of time to pay,
compromise claims and settle Receivables, General Intangibles and the like for
less than face value; and (h) Demand and receive possession of any of Borrower's
federal and state income tax returns and the books and records utilized in the
preparation thereof or referring thereto. All reasonable attorneys' fees,
expenses, costs, liabilities and obligations incurred by GBC with respect to the
foregoing shall be added to and become part of the Obligations, shall be due on
demand, and shall bear interest at a rate equal to the highest interest rate
applicable to any of the Obligations. Without limiting any of GBC's rights and
remedies, from and after the occurrence of any Event of Default, the interest
rate applicable to the Obligations shall be increased by an additional four
percent per annum.
+ BY BORROWER
* WHILE SUCH EVENT OF DEFAULT IS CONTINUING
** REASONABLY
*** REASONABLE
7.3 STANDARDS FOR DETERMINING COMMERCIAL REASONABLENESS. Borrower and GBC
agree that a sale or other disposition (collectively, "sale") of any Collateral
which complies with the following standards will conclusively be deemed to be
commercially reasonable: (i) Notice of the sale is given to Borrower at least
* days prior to the sale, and, in the case of a public sale, notice of the sale
is published at least seven days before the sale in a newspaper of general
circulation in the county where the sale is to be conducted; (ii) Notice of the
sale describes the collateral in general, non-specific terms; (iii) The sale is
conducted at a place designated by GBC, with or without the Collateral being
present; (iv) The sale commences at any time between 8:00 a.m. and 6:00 p.m; (v)
Payment of the purchase price in cash or by cashier's check or wire transfer is
required; (vi) With respect to any sale of any of the Collateral, GBC may (but
is not obligated to) direct any prospective purchaser to ascertain directly from
Borrower any and all information concerning the same. GBC shall be free to
employ other methods of noticing and selling the Collateral, in its discretion,
if they are commercially reasonable.
* TEN
7.4 POWER OF ATTORNEY. Upon the occurrence and during the continuance of any
Event of Default, without limiting GBC's other rights and remedies, Borrower
grants to GBC an irrevocable power of attorney coupled with an interest,
authorizing and permitting GBC (acting through any of its employees, attorneys
or agents) at any time, at its option, but without obligation, with or without
notice to Borrower, and at Borrower's expense, to do any or all of the
following, in Borrower's name or otherwise, but GBC agrees to exercise the
following powers in a commercially reasonable manner: (a) Execute on behalf of
Borrower any documents that GBC may, in its sole discretion, deem advisable in
order to perfect and
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maintain GBC's security interest in the Collateral, or in order to exercise a
right of Borrower or GBC, or in order to fully consummate all the transactions
contemplated under this Agreement, and all other present and future agreements;
(b) Execute on behalf of Borrower any document exercising, transferring or
assigning any option to purchase, sell or otherwise dispose of or to lease (as
lessor or lessee) any real or personal property which is part of GBC's
Collateral or in which GBC has an interest; (c) Execute on behalf of Borrower,
any invoices relating to any Receivable, any draft against any Account Debtor
and any notice to any Account Debtor, any proof of claim in bankruptcy, any
Notice of Lien, claim of mechanic's, materialman's or other lien, or assignment
or satisfaction of mechanic's, materialman's or other lien; (d) Take control in
any manner of any cash or non-cash items of payment or proceeds of Collateral;
endorse the name of Borrower upon any instruments, or documents, evidence of
payment or Collateral that may come into GBC's possession; (e) Endorse all
checks and other forms of remittances received by GBC; (f) Pay, contest or
settle any lien, charge, encumbrance, security interest and adverse claim in or
to any of the Collateral, or any judgment based thereon, or otherwise take any
action to terminate or discharge the same; (g) Grant extensions of time to pay,
compromise claims and settle Receivables and General Intangibles for less than
face value and execute all releases and other documents in connection therewith;
(h) Pay any sums required on account of Borrower's taxes or to secure the
release of any liens therefor, or both; (i) Settle and adjust, and give releases
of, any insurance claim that relates to any of the Collateral and obtain payment
therefor; (j) Instruct any third party having custody or control of any books or
records belonging to, or relating to, Borrower to give GBC the same rights of
access and other rights with respect thereto as GBC has under this Agreement;
and (k) Take any action or pay any sum required of Borrower pursuant to this
Agreement and any other present or future agreements. Any and all reasonable
sums paid and any and all reasonable costs, expenses, liabilities, obligations
and reasonable attorneys' fees incurred by GBC with respect to the foregoing
shall be added to and become part of the Obligations, shall be payable on
demand, and shall bear interest at a rate equal to the highest interest rate
applicable to any of the Obligations. In no event shall GBC's rights under the
foregoing power of attorney or any of GBC's other rights under this Agreement be
deemed to indicate that GBC is in control of the business, management or
properties of Borrower.
7.5 APPLICATION OF PROCEEDS. All proceeds realized as the result of any sale
or other disposition of the Collateral shall be applied by GBC first to the
reasonable costs, expenses, liabilities, obligations and attorneys' fees
incurred by GBC in the exercise of its rights under this Agreement, second to
the interest due upon any of the Obligations, and third to the principal of the
Obligations, in such order as GBC shall determine in its sole discretion. Any
surplus shall be paid to Borrower or other persons legally entitled thereto;
Borrower shall remain liable to GBC for any deficiency. If GBC, in its sole
discretion, directly or indirectly enters into a deferred payment or other
credit transaction with any purchaser at any sale of Collateral, GBC shall have
the option, exercisable at any time, in its sole discretion, of either reducing
the Obligations by the principal amount of purchase price or deferring the
reduction of the Obligations until the actual receipt by GBC of the cash
therefor.
7.6 REMEDIES CUMULATIVE. In addition to the rights and remedies set forth in
this Agreement, GBC shall have all the other rights and remedies accorded a
secured party under the California Uniform Commercial Code and under all other
applicable laws, and under any other instrument or agreement now or in the
future entered into between GBC and Borrower, and all of such rights and
remedies are cumulative and none is exclusive. Exercise or partial exercise by
GBC of one or more of its rights or remedies shall not be deemed an election,
nor bar GBC from subsequent exercise or partial exercise of any other rights or
remedies. The failure or delay of GBC to exercise any rights or remedies shall
not operate as a waiver thereof, but all rights and remedies shall continue in
full force and effect until all of the Obligations have been fully paid and
performed.
8. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"Account Debtor" means the obligor on a Receivable.
"Affiliate" means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.
"Agreement" and "this Agreement" means this Loan and Security Agreement and
all modifications and amendments thereto, extensions thereof, and replacements
therefor.
"Business Day" means a day on which GBC is open for business.
"Code" means the Uniform Commercial Code as adopted and in effect in the State
of California from time to time.
"Collateral" has the meaning set forth in Section 2.1 above.
"Default" means any event which with notice or passage of time or both, would
constitute an Event of Default.
"Deposit Account" has the meaning set forth in Section 9105 of the Code.
"Eligible Receivables" means unconditional Receivables arising in the
ordinary course of Borrower's business from the completed sale of goods or
rendition of services, which GBC * shall deem eligible for borrowing, based on
such considerations as GBC may from time to time deem appropriate*.
* , IN ITS GOOD FAITH BUSINESS JUDGMENT
"Equipment" means all of Borrower's present and hereafter acquired machinery,
molds, machine tools, motors, furniture, equipment, furnishings, fixtures, trade
fixtures,
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motor vehicles, tools, parts, dyes, jigs, goods and other tangible personal
property (other than Inventory) of every kind and description used in Borrower's
operations or owned by Borrower and any interest in any of the foregoing, and
all attachments, accessories, accessions, replacements, substitutions, additions
or improvements to any of the foregoing, wherever located.
"Event of Default" means any of the events set forth in Section 7.1 of this
Agreement.
"General Intangibles" means all general intangibles of Borrower, whether now
owned or hereafter created or acquired by Borrower, including, without
limitation, all choices in action, causes of action, corporate or other business
records, Deposit Accounts, inventions, designs, drawings, blueprints, patents,
patent applications, trademarks and the goodwill of the business symbolized
thereby, names, trade names, trade secrets, goodwill, copyrights, registrations,
licenses, franchises, customer lists, security and other deposits, rights in all
litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter arising
therefrom, all claims of Borrower against GBC, rights to purchase or sell real
or personal property, rights as a licensor or licensee of any kind, royalties,
telephone numbers, proprietary information, purchase orders, and all insurance
policies and claims (including life insurance, key man insurance, credit
insurance, liability insurance, property insurance and other insurance), tax
refunds and claims, computer programs, discs, tapes and tape files, claims under
guaranties, security interests or other security held by or granted to Borrower,
all rights to indemnification and all other intangible property of every kind
and nature (other than Receivables).
"Guarantor" means any Person who has guaranteed any of the Obligations.
"Inventory" means all of Borrower's now owned and hereafter acquired goods,
merchandise or other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease (including all raw materials,
work in process, finished goods and goods in transit), and all materials and
supplies of every kind, nature and description which are or might be used or
consumed in Borrower's business or used in connection with the manufacture,
packing, shipping, advertising, selling or finishing of such goods, merchandise
or other personal property, and all warehouse receipts, documents of title and
other documents representing any of the foregoing.
"LIBOR Rate" means (i) the one-month London Interbank Offered Rate for
deposits in U.S. dollars, as shown each day in The Wall Street Journal (Eastern
Edition) under the caption "Money Rates - London Interbank Offered Rates
(LIBOR)"; or (ii) if the Wall Street Journal does not publish such rate, the
offered one-month rate for deposits in U.S. dollars which appears on the Reuters
Screen LIBOR Page as of 10:00 a.m., New York time, each day, provided that if at
least two rates appear on the Reuters Screen LIBO Page on any day, the "LIBOR
Rate" for such day shall be the arithmetic mean of such rates; or (iii) if the
Wall Street Journal does not publish such rate on a particular day and no such
rate appears on the Reuters Screen LIBO Page on such day, the rate per annum at
which deposits in U.S. dollars are offered to the principal London office of The
Chase Manhattan Bank, N.A. in the London interbank market at approximately 11:00
A.M., London time, on such day in an amount approximately equal to the
outstanding principal amount of the Loans, for a period of one month, in each of
the foregoing cases as determined in good faith by GBC, which determination
shall be conclusive absent manifest error.
"Obligations" means all present and future Loans, advances, debts,
liabilities, obligations, guaranties, covenants, duties and indebtedness at any
time owing by Borrower to GBC, whether evidenced by this Agreement or any note
or other instrument or document, whether arising from an extension of credit,
opening of a letter of credit, banker's acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect (including, without
limitation, those acquired by assignment and any participation by GBC in
Borrower's debts owing to others), absolute or contingent, due or to become due,
including, without limitation, all interest, charges, expenses, fees, attorney's
fees, expert witness fees, audit fees, letter of credit fees, loan fees,
termination fees, minimum interest charges and any other sums chargeable to
Borrower under this Agreement or under any other present or future instrument or
agreement between Borrower and GBC.
"Permitted Liens" means the following: (i) purchase money security interests
in specific items of Equipment; (ii) leases of specific items of Equipment;
(iii) liens for taxes not yet payable; (iv) additional security interests and
liens which are subordinate to the security interest in favor of GBC and are
consented to in writing by GBC (which consent shall not be unreasonably
withheld); (v) security interests being terminated substantially concurrently
with this Agreement; (vi) liens of materialmen, mechanics, warehousemen,
carriers, or other similar liens arising in the ordinary course of business and
securing obligations which are not delinquent; * (vii) liens incurred in
connection with the extension, renewal or refinancing of the indebtedness
secured by liens of the type described above in clauses (i) or (ii) above,
provided that any extension, renewal or replacement lien is limited to the
property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase; (viii)
Liens in favor of customs and revenue authorities which secure payment of
customs duties in connection with the importation of goods. GBC will have the
right to require, as a condition to its consent under subparagraph (iv) above,
that the holder of the additional security interest or lien sign an
intercreditor agreement on GBC's then standard form, acknowledge that the
security interest is subordinate to the security interest in favor of GBC, and
agree not to take any action to enforce its subordinate security interest so
long as any Obligations remain outstanding, and that Borrower agree that any
uncured default in any obligation secured by the subordinate security interest
shall also constitute an Event of Default under this Agreement.
24
GREYROCK BUSINESS CREDIT
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--------------------------------------------------------------------------------
Page 10
*(vi-1) SECURITY INTERESTS IN FAVOR OF SILICON VALLEY BANK, MMC/GATX
PARTNERSHIP NO.1, AND XXXXX XXXXXXXX & COMPANY IN SPECIFIC EQUIPMENT (THE "SVB
LIENS"), (vi-2) SECURITY INTERESTS IN EQUIPMENT SHOWN ON THE UCC SEARCHES IN THE
NAME OF THE BORROWER IN THE STATES OF COLORADO, WASHINGTON AND CALIFORNIA, DATED
AS OF OCTOBER 20, 1997, OCTOBER 17, 1997, AND NOVEMBER 12, 1997, RESPECTIVELY.
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
government, or any agency or political division thereof, or any other entity.
"Receivables" means all of Borrower's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, documents and all other forms of
obligations at any time owing to Borrower, all guaranties and other security
therefor, all merchandise returned to or repossessed by Borrower, and all rights
of stoppage in transit and all other rights or remedies of an unpaid vendor,
lienor or secured party.
Other Terms. All accounting terms used in this Agreement, unless otherwise
indicated, shall have the meanings given to such terms in accordance with
generally accepted accounting principles, consistently applied. All other terms
contained in this Agreement, unless otherwise indicated, shall have the meanings
provided by the Code, to the extent such terms are defined therein.
9. GENERAL PROVISIONS.
9.1 INTEREST COMPUTATION. In computing interest on the Obligations, all
checks, wire transfers and other items of payment received by GBC (including
proceeds of Receivables and payment of the Obligations in full) shall be deemed
applied by GBC on account of the Obligations three Business Days after receipt
by GBC of immediately available funds. GBC shall not, however, be required to
credit Borrower's account for the amount of any item of payment which is
unsatisfactory to GBC in its discretion, and GBC may charge Borrower's Loan
account for the amount of any item of payment which is returned to GBC unpaid.
9.2 APPLICATION OF PAYMENTS. All payments with respect to the Obligations may
be applied, and in GBC's sole discretion reversed and re-applied, to the
Obligations, in such order and manner as GBC shall determine in its sole
discretion.
9.3 CHARGES TO ACCOUNT. GBC may, in its discretion, require that Borrower pay
monetary Obligations in cash to GBC, or charge them to Borrower's Loan account,
in which event they will bear interest at the same rate applicable to the Loans.
9.4 MONTHLY ACCOUNTINGS. GBC shall provide Borrower monthly with an account of
advances, charges, expenses and payments made pursuant to this Agreement. *
account shall be deemed correct, accurate and binding on Borrower and an account
stated (except for reverses and reapplications of payments made and corrections
of errors discovered by GBC), unless Borrower notifies GBC in writing to the
contrary within sixty days after each account is rendered, describing the nature
of any alleged errors or admissions.
* IN THE ABSENCE OF MANIFEST ERROR SUCH
9.5 NOTICES. All notices to be given under this Agreement shall be in writing
and shall be given either personally or by reputable private delivery service or
by regular first-class mail, or certified mail return receipt requested,
addressed to GBC or Borrower at the addresses shown in the heading to this
Agreement, or at any other address designated in writing by one party to the
other party. All notices shall be deemed to have been given upon delivery in the
case of notices personally delivered, or at the expiration of one business day
following delivery to the private delivery service, or two business days
following the deposit thereof in the United States mail, with postage prepaid.
9.6 SEVERABILITY. Should any provision of this Agreement be held by any court
of competent jurisdiction to be void or unenforceable, such defect shall not
affect the remainder of this Agreement, which shall continue in full force and
effect.
9.7 INTEGRATION. This Agreement and such other written agreements, documents
and instruments as may be executed in connection herewith are the final, entire
and complete agreement between Borrower and GBC and supersede all prior and
contemporaneous negotiations and oral representations and agreements, all of
which are merged and integrated in this Agreement. There are no oral
understandings, representations or agreements between the parties which are not
set forth in this Agreement or in other written agreements signed by the parties
in connection herewith.
9.8 WAIVERS. The failure of GBC at any time or times to require Borrower to
strictly comply with any of the provisions of this Agreement or any other
present or future agreement between Borrower and GBC shall not waive or diminish
any right of GBC later to demand and receive strict compliance therewith. Any
waiver of any default shall not waive or affect any other default, whether prior
or subsequent, and whether or not similar. None of the provisions of this
Agreement or any other agreement now or in the future executed by Borrower and
delivered to GBC shall be deemed to have been waived by any act or knowledge of
GBC or its agents or employees, but only by a specific written waiver signed by
an authorized officer of GBC and delivered to Borrower. Borrower waives demand,
protest, notice of protest and notice of default or dishonor, notice of payment
and nonpayment, release, compromise, settlement, extension or renewal of any
commercial paper, instrument, account, General Intangible, document or guaranty
at any time held by GBC on which Borrower is or may in any way be liable, and
notice of any action taken by GBC, unless expressly required by this Agreement.
9.9 AMENDMENT. The terms and provisions of this Agreement may not be waived or
amended, except in a writing executed by Borrower and a duly authorized officer
of GBC.
25
GREYROCK BUSINESS CREDIT
LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Page 11
9.10 TIME OF ESSENCE. Time is of the essence in the performance by Borrower of
each and every obligation under this Agreement.
9.11 ATTORNEYS FEES AND COSTS. Borrower shall reimburse GBC for all reasonable
attorneys' fees and all filing, recording, search, title insurance, appraisal,
audit, and other reasonable costs incurred by GBC, pursuant to, or in connection
with, or relating to this Agreement (whether or not a lawsuit is filed),
including, but not limited to, any reasonable attorneys' fees and costs GBC
incurs in order to do the following: prepare and negotiate this Agreement and
the documents relating to this Agreement; obtain legal advice * in connection
with this Agreement or Borrower; enforce, or seek to enforce, any of its rights;
prosecute actions against, or defend actions by, Account Debtors; commence,
intervene in, or defend any action or proceeding; initiate any complaint to be
relieved of the automatic stay in bankruptcy; file or prosecute any probate
claim, bankruptcy claim, third-party claim, or other claim; examine, audit,
copy, and inspect any of the Collateral or any of Borrower's books and records;
protect, obtain possession of, lease, dispose of, or otherwise enforce GBC's
security interest in, the Collateral; and otherwise represent GBC in any
litigation ** relating to Borrower. If either GBC or Borrower files any lawsuit
against the other predicated on a breach of this Agreement, the prevailing party
in such action shall be entitled to recover its reasonable costs and attorneys'
fees, including (but not limited to) reasonable attorneys' fees and costs
incurred in the enforcement of, execution upon or defense of any order, decree,
award or judgment. All attorneys' fees and costs to which GBC may be entitled
pursuant to this Paragraph shall immediately become part of Borrower's
Obligations, shall be due on demand, and shall bear interest at a rate equal to
the highest interest rate applicable to any of the Obligations.
*REASONABLY REQUIRED
**BROUGHT BY A THIRD PARTY
9.12 BENEFIT OF AGREEMENT. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective successors, assigns, heirs,
beneficiaries and representatives of Borrower and GBC; provided, however, that
Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of GBC, and any prohibited assignment shall be
void. No consent by GBC to any assignment shall release Borrower from its
liability for the Obligations.
9.13 JOINT AND SEVERAL LIABILITY. If Borrower consists of more than one
Person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
9.14 LIMITATION OF ACTIONS. [Intentionally Deleted.]
9.15 PARAGRAPH HEADINGS; CONSTRUCTION. Paragraph headings are only used in
this Agreement for convenience. Borrower and GBC acknowledge that the headings
may not describe completely the subject matter of the applicable paragraph, and
the headings shall not be used in any manner to construe, limit, define or
interpret any term or provision of this Agreement. The term "including",
whenever used in this Agreement, shall mean "including (but not limited to)".
This Agreement has been fully reviewed and negotiated between the parties and no
uncertainty or ambiguity in any term or provision of this Agreement shall be
construed strictly against GBC or Borrower under any rule of construction or
otherwise.
9.16 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and all acts and
transactions hereunder and all rights and obligations of GBC and Borrower shall
be governed by the laws of the State of California. As a material part of the
consideration to GBC to enter into this Agreement, Borrower (i) agrees that all
actions and proceedings relating directly or indirectly to this Agreement shall,
at GBC's option, be litigated in courts located within California, and that the
exclusive venue therefor shall be Los Angeles County; (ii) consents to the
jurisdiction and venue of any such court and consents to service of process in
any such action or proceeding by personal delivery or any other method permitted
by law; and (iii) waives any and all rights Borrower may have to object to the
jurisdiction of any such court, or to transfer or change the venue of any such
action or proceeding.
26
GREYROCK BUSINESS CREDIT
LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Page 12
9.17 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND GBC EACH HEREBY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE INSTRUMENT OR
AGREEMENT BETWEEN GBC AND BORROWER, OR ANY CONDUCT, ACTS OR OMISSIONS OF GBC OR
BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR
ANY OTHER PERSONS AFFILIATED WITH GBC OR BORROWER, IN ALL OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
BORROWER:
VIXEL CORPORATION
BY /s/ Xxxxxxx X. Xxxxx
---------------------------------------
PRESIDENT OR VICE PRESIDENT
GBC:
GREYROCK BUSINESS CREDIT,
A DIVISION OF NATIONSCREDIT COMMERCIAL CORPORATION
BY /s/ Xxxx Xxxxxx
---------------------------------------
TITLE V.P.
-------------------------------------
46,339-3
27
LETTER AGREEMENT - AMENDMENT TO LOAN AGREEMENT
November 26, 1997
Greyrock Business Credit
00000 Xxxxxxxx Xxxx. Xxxxx 000
Xxx Xxxxxxx, XX 00000
Gentlemen:
Reference is made to the Loan and Security Agreement between us of even
date (the "Loan Agreement"). (Capitalized terms used in this Letter Agreement,
which are not defined, shall have the meanings set forth in the Loan Agreement.)
This will confirm our agreement to amend the Loan Agreement as follows:
1. Exclusion of Certain Equipment. The following sentence is hereby
added to the Loan Agreement at the end of the definition of "Equipment" in
Section 8 of the Loan Agreement: "Notwithstanding anything in this Agreement to
the contrary, the terms `Equipment' and `Collateral' shall not include
equipment in which the Borrower has granted security interests to Silicon
Valley Bank, MMC/GATX Partnership No. 1, and Xxxxx Xxxxxxxx & Company (the
'Silicon Equipment')."
2. Conforming Change. Because the Collateral does not include the
Silicon Equipment, the following clause is hereby deleted from the definition
of Permitted Liens in Section 8 of the Loan Agreement: "(vi-l) security
interests in favor of Silicon Valley Bank, MMC/GATX Partnership No. 1, and
Xxxxx Xxxxxxxx & Company in specific Equipment (the `SVB Liens')."
As herein expressly modified the Loan Agreement shall continue in full
force and effect and the same is hereby ratified and confirmed. This Letter
Agreement and the other written agreements and documents between us set forth
in full all of the representations and agreements of the parties with respect
to the subject matter hereof and supersede all prior discussions, oral
representations, oral agreements and oral understandings between the parties
with respect to the subject matter hereof. This Letter Agreement may not be
modified or amended, nor may any rights hereunder be waived, except in a
writing signed by the parties hereto.
Sincerely yours,
VIXEL CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Title VP Finance
----------------------------------
Accepted and agreed:
GREYROCK BUSINESS CREDIT, a Division of
NationsCredit Commercial Corporation
By /s/ Xxxx Xxxxxx
------------------------------------
Title V.P.
----------------------------------
28
[GREYROCK BUSINESS CREDIT LOGO]
A NATIONSBANK COMPANY
CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
BORROWER: VIXEL CORPORATION, A CORPORATION
ORGANIZED UNDER THE LAWS OF THE STATE OF
DELAWARE
DATE: NOVEMBER 26, 1997
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and
that said resolutions are still in full force and effect and have not been in
any way modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation borrow from GREYROCK BUSINESS CREDIT, a
Division of NationsCredit Commercial Corporation ("GBC"), from time to
time, such sum or sums of money as, in the judgment of the officer or
officers hereinafter authorized hereby, this corporation may require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, directed and empowered, in the name of this corporation,
to execute and deliver to GBC, and GBC is requested to accept, the loan
agreements, security agreements, notes, financing statements, and other
documents and instruments providing for such loans and evidencing and/or
securing such loans, with interest thereon, and said authorized officers
are authorized from time to time to execute renewals, extensions and/or
amendments of said loan agreements, security agreements, and other
documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all
indebtedness of this corporation to GBC, whether arising pursuant to this
resolution or otherwise, to grant, transfer, pledge, mortgage, assign, or
otherwise hypothecate to GBC, or deed in trust for its benefit, any
property of any and every kind, belonging to this corporation, including,
but not limited to, any and all real property, accounts, inventory,
equipment, general intangibles, instruments, documents, chattel paper,
notes, money, deposit accounts, furniture, fixtures, goods, and other
property of every kind, and to execute and deliver to GBC any and all
grants, transfers, trust receipts, loan or credit agreements, pledge
agreements, mortgages, deeds of trust, financing statements, security
agreements and other hypothecation agreements, which said instruments and
the note or notes and other instruments referred to in the preceding
paragraph may contain such provisions, covenants, recitals and agreements
as GBC may require and said authorized officers may approve, and the
execution thereof by said authorized officers shall be conclusive evidence
of such approval; and that GBC may conclusively rely upon a certified copy
of these resolutions and a certificate of the Secretary or Ass't Secretary
of this corporation as to the officers of this corporation and their
offices and signatures, and continue to conclusively rely on such certified
copy of these resolutions and said certificate for all past, present and
future transactions until written notice of any change hereto or thereto is
given to GBC by this corporation by certified mail, return receipt
requested.
The undersigned further hereby certifies that the following persons are the
duly elected and acting officers of the corporation named above as borrower and
that the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
----- --------- -----------------
Xxxxxxx X. Xxxxx VP Finance /s/ XXXXXXX X. XXXXX
Xxxx Xxxxxxxx CEO & President /s/ XXXXXXX X. XXXXXXXX
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/ Xxxxxxx X. Xxxxx
-------------------------------------
Secretary or Assistant Secretary
29
[GREYROCK BUSINESS CREDIT LOGO]
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: VIXEL CORPORATION
ADDRESS: 00000 XXXXXXXXXX XXXXXXX X., XXXXX 000
XXXXXXX, XXXXXXXXXX 00000
DATE: NOVEMBER 26, 1997
This Schedule is an integral part of the Loan and Security Agreement between
GREYROCK BUSINESS CREDIT, A DIVISION OF NATIONSCREDIT COMMERCIAL CORPORATION
("GBC") and the above-borrower ("Borrower") of even date.
================================================================================
1. CREDIT LIMIT
(Section 1.1): An amount not to exceed the lesser of: (i) $5,000,000
at any one time outstanding; or (ii) 80% of the amount
of Borrower's Eligible Receivables (as defined in
Section 8 above).
================================================================================
2. INTEREST
INTEREST RATE (Section 1.2):
The interest rate in effect throughout each calendar
month during the term of this Agreement shall be the
highest "LIBOR Rate" in effect during such month, plus
4.75% per annum, provided that (i) the interest rate in
effect in each month shall not be less than 8% per
annum, and (ii) the interest charged for each month in
which there are any Loans outstanding shall be a
minimum of $6,000 (regardless of the amount of the
Loans outstanding), and (iii) the interest charged for
each month in which there are no Loans outstanding
shall be $2,000 (even though there are no Loans
outstanding). Interest shall be calculated on the basis
of a 360-day year for the actual number of days
elapsed. "LIBOR Rate" has the meaning set forth in
Section 8 above.
================================================================================
3. FEES (Section 1.3/Section 6.2):
Loan Fee: $40,000, payable concurrently herewith.
-1-
30
GREYROCK BUSINESS CREDIT SCHEDULE TO LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
Termination Fee: $6,000 per month for each month (or portion thereof)
from the effective date of termination to the Maturity
Date
NSF Check Charge: $15.00 per item.
Wire Transfers: $15.00 per transfer.
================================================================================
4. MATURITY DATE
(Section 6.1): NOVEMBER 30, 1998, subject to automatic renewal as
provided in Section 6.1 above, and early termination
as provided in Section 6.2 above.
================================================================================
5. REPORTING
(Section 5.2):
Borrower shall provide GBC with the following:
1. Annual financial statements, as soon as available,
and in any event within 90 days following the end
of Borrower's fiscal year, certified by
independent certified public accountants
acceptable to GBC.
2. Quarterly unaudited financial statements, as soon
as available, and in any event within 30 days
after the end of each fiscal quarter of Borrower.
3. Monthly unaudited financial statements, as soon as
available, and in any event within 30 days after
the end of each month.
4. Monthly Receivable agings, aged by invoice date,
within 10 days after the end of each month
(subject to month end adjustments in the ordinary
course of business).
5. Monthly accounts payable agings, aged by invoice
date, and outstanding or held check registers
within 10 days after the end of each month
(subject to month end adjustments in the ordinary
course of business).
================================================================================
6. BORROWER INFORMATION:
PRIOR NAMES OF BORROWER
(Section 3.2): Photonics Research, Inc.
PRIOR TRADE NAMES OF BORROWER
(Section 3.2): None
EXISTING TRADE NAMES OF BORROWER
(Section 3.2): None
-2-
31
GREYROCK BUSINESS CREDIT SCHEDULE TO LOAN AND SECURITY AGREEMENT
--------------------------------------------------------------------------------
OTHER LOCATIONS AND
ADDRESSES (Section 3.3): 000 Xxxxxxxxxxx Xxxxxxx, Xxxx. X, Xxxxxxxxxx,
XX 00000
000 X. Xxx Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx,
XX 00000
MATERIAL ADVERSE
LITIGATION (Section 3.10): None. For disclosure purposes only, Borrower
advises GBC that it has been named as the
defendant in a complaint filed by Methode
Electronics, Inc. ("Methode") on October 7, 1997
in the United States District Court for the
Northern District of Illinois (the "Complaint"),
in which Methode claims that Borrower's Giga-bit
Interface Converter product infringes U.S. Patent
No. 5,546,281 ("Removable Optoelectronic
Module"), of which Methode is the assignee. In
the Complaint, Methode seeks declaratory and
injunctive relief and treble damages for alleged
willful infringement by Borrower of the patents
in question.
Borrower has filed with the court a motion to
dismiss the Methode action for lack of personal
jurisdiction, or, alternatively, to transfer the
case to the United States District Court for the
Western District of Washington.
Borrower does not believe the foregoing will
result in any material adverse change in the
financial condition or business of Borrower, or
in any material impairment in the ability of
Borrower to carry on its business in
substantially the same manner as it is now being
conducted.
================================================================================
7. OTHER PROVISIONS:
(1) NEGATIVE COVENANTS - EXCEPTIONS. The
following transactions (the "Transactions")
shall be permitted transactions under Section
5.5 and will not require the consent of GBC:
(a) The acquisition by Borrower of 100% of
the outstanding capital stock of Arcxel
Technologies, Inc., a California corporation,
on substantially the terms set forth on the
Letter of Intent entitled "Proposed Merger of
Arcxel and Vixel" attached hereto as Exhibit
A (the "Arcxel Acquisition"); and
(b) The sale of Borrower of its Broomfield,
Colorado facility and the business and
assets, including intellectual property,
related to the design, manufacturing and
marketing of vertical cavity laser diodes and
integrated photodetectors.
(c) Borrower maintaining inventory at third
party completion sites in the ordinary course
of business.
(2) INTELLECTUAL PROPERTY. Borrower represents
and warrants that, except for the assets being
sold related to the design, manufacturing and
marketing of vertical cavity laser diodes and
integrated photodetectors, Borrower has no
patents, patent applications, copyrights
(registered or unregistered), copyright
applications, or
-3-
32
Greyrock Business Credit Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
software. Borrower will promptly advise GBC upon
acquiring any of the foregoing.
Borrower: GBC:
VIXEL CORPORATION GREYROCK BUSINESS CREDIT,
a Division of NationsCredit Commercial
Corporation
By /s/ Xxxxxxx X. Xxxxx 11/28/97
-------------------------------
President or Vice President By /s/ Xxxx Xxxxxx
-------------------------------------
Title VP
----------------------------------
-4-
33
[GREYROCK BUSINESS CREDIT LOGO]
PLEDGE AGREEMENT
(SECURITIES)
PLEDGOR: VIXEL CORPORATION
ADDRESS: 00000 XXXXXXXXXX XXXXXXX X.
XXXXX 000
XXXXXXX, XX 00000
DATE: FEBRUARY 9, 1998
THIS PLEDGE AGREEMENT ("Pledge Agreement"), dated the above date, is
entered into at between GREYROCK BUSINESS CREDIT, a Division of NationsCredit
Commercial Corporation ("GBC"), whose address is 00000 Xxxxxxxx Xxxx. Xxxxx
000, Xxx Xxxxxxx, XX 00000, and the pledgor named above ("Pledgor"), whose
address is set forth above.
1. PLEDGE OF SECURITIES. Pledgor hereby pledges to GBC and grants GBC a
security interest in the stock certificates and other securities listed on
Exhibit A hereto, together with duly executed instruments of assignment thereof
to GBC (which, together with all replacements and substitutions therefor are
hereinafter referred to as the "Securities"), and all rights and remedies
relating to, or arising out of, any and all of the foregoing, and all proceeds
thereof (collectively, the "Collateral") to secure the payment and performance
of all "Obligations" (collectively, the "Obligations"), as defined in the Loan
and Security Agreement between GBC and Pledgor dated November 26, 1997, and all
extensions and renewals and modifications thereof (the "Loan Agreement"). Any
and all stock dividends, rights, warrants, options, puts, calls, conversion
rights and other securities and any and all property and money distributed or
delivered with respect to the Securities or issued upon the exercise of any
puts, calls, conversion rights, options, warrants or other rights included in
or pertaining to the Securities shall be included in the term "Securities" as
used herein and shall be subject to this Pledge Agreement, and Pledgor shall
deliver the same to GBC immediately upon receipt thereof together with any
necessary instruments of transfer; provided, however, that until an Event of
Default as hereinafter defined) shall occur, Pledgor may retain any dividends
paid in cash or its equivalent, with respect to any stock included in the
Securities and any interest paid with respect to any bonds, debentures or other
evidences of indebtedness included in the Securities. Pledgor hereby
acknowledges that the acceptance of the pledge of the Securities by GBC shall
not constitute a commitment of any kind by GBC to permit Pledgor to incur
Obligations.
2. VOTING AND OTHER RIGHTS. Pledgor shall have the right to exercise all
voting rights with respect to the Securities, provided no Event of Default (as
hereinafter defined) has occurred. Upon the occurrence of any Event of Default,
GBC shall have the right (but not any obligation) to exercise all voting rights
with respect to the Securities. Provided no Event of Default has occurred,
Pledgor shall have the right to exercise all puts, calls, straddles, conversion
rights, options, warrants, and other rights and remedies with respect to the
Securities, provided Pledgor obtains the prior written consent of GBC thereto.
GBC shall have no responsibility or liability whatsoever for the exercise of,
or failure to exercise, any puts, calls, straddles, conversion rights, options,
warrants, rights to vote or consent, or other rights with respect to any of the
Securities. Whether or not an Event of Default has occurred, GBC shall have the
right from time to time to transfer all or any part of the Securities to GBC's
own name or the name of its nominee.
3. REPRESENTATIONS AND WARRANTIES. Pledgor hereby represents and
warrants to GBC that Pledgor now has, and * throughout the term of this
Agreement will at all times have, good title to the Securities and the other
Collateral, free and clear of any and all security interests, liens and claims
of any kind whatsoever**.
*(SUBJECT TO SECTION 2 ABOVE)
**EXCEPT THOSE IN FAVOR OF GBC
4. EVENTS OF DEFAULT. If any one or more of the following events shall
occur, any such event shall constitute an Event of Default and Pledgor shall
provide
34
GREYROCK BUSINESS CREDIT PLEDGE AGREEMENT
--------------------------------------------------------------------------------
GBC with immediate notice thereof: (a) Any warranty, representation, statement,
report or certificate made or delivered to GBC by Pledgor or any of Pledgor's
officers, employees or agents now or hereafter is incorrect, false, untrue or
misleading in any material respect; or (b) Pledgor shall fail to promptly pay
or perform when due part or all of any of the Obligations, or any default or
event of default shall occur under the Loan Agreement or any other present or
future instrument, document or agreement between GBC and Pledgor.
5. REMEDIES. If an Event of Default shall occur, Pledgor shall give
immediate written notice thereof to GBC. Upon the occurrence of an Event of
Default, and at any time thereafter*, GBC shall have the right, without notice
to or demand upon Pledgor, to exercise any one or more of the following
remedies: (a) accelerate and declare all or any part of the Obligations to be
immediately due, payable and performable, notwithstanding any deferred or
installment payments allowed by any agreement or instrument evidencing or
relating to any of the same; (b) sell or otherwise dispose of the Securities,
and other Collateral, at a public or private sale, for cash, or other property,
or on credit, with the authority to adjourn or postpone any such sale from time
to time without notice other than oral announcement at the time scheduled for
sale. GBC may directly or through any affiliate purchase the Securities, and
other Collateral, at any such public disposition, and if permissible under
applicable law, at any private disposition. Pledgor and GBC hereby agree that
it shall conclusively be deemed commercially reasonable for GBC, in connection
with any sale or disposition of the Securities, to impose restrictions and
conditions as to the investment intent of a purchaser or bidder, the ability of
a purchaser or bidder to bear the economic risk of an investment in the
Securities, the knowledge and experience in business and financial matters of a
purchaser or bidder, the access of a purchaser or bidder to information
concerning the issuer of the Securities, as well as legend conditions and stop
transfer instructions restricting subsequent transfer of the Securities, and
any other restrictions or conditions which GBC believes to be necessary or
advisable in order to comply with any state or federal securities or other
laws. Pledgor acknowledges that the foregoing restrictions may result in fewer
proceeds being received upon such sale then would otherwise be the case.
Pledgor hereby agrees to provide to GBC any and all information required by GBC
in connection with any sales of Securities by GBC hereunder. If, after the
occurrence of any Event of Default, Rule 144 promulgated by the Securities and
Exchange Commission (or any other similar rule) is available for use by GBC in
connection with the sales of any Securities hereunder. Pledgor agrees not to
utilize Rule 144 in the sale of any securities held by Pledgor of the same
class as the Securities, without the prior written consent of GBC. Any and all
attorneys' fees, expenses, costs, liabilities and obligations incurred by GBC
in connection with the foregoing shall be added to and become a part of the
Obligations and shall be due from Pledgor to GBC upon demand.
*WHILE AN EVENT OF DEFAULT IS CONTINUING
6. REMEDIES, CUMULATIVE; NO WAIVER. The failure of GBC to enforce any of
the provisions of this Agreement at any time or for any period of time shall
not be construed to be a waiver of any such provision or the right thereafter
to enforce the same. All remedies hereunder shall be cumulative and shall be in
addition to all rights, powers and remedies given to GBC by law.
7. TERM. This Agreement and GBC's rights hereunder shall continue in
full force and effect until all of the Obligations have been fully paid,
performed and discharged and the Loan Agreement and all other agreements
between Borrower and GBC have terminated. Upon termination, GBC shall return the
Collateral to Pledgor, with any necessary instruments of transfer.
8. REVIVOR. If any payment made on any of the Obligations shall for any
reason be required to be returned by GBC, whether on the ground that such
payment constituted a preference or for any other reason, then for purposes of
this Agreement, and notwithstanding any prior termination of this Agreement,
such payment on shall be treated as not having been made, and this Agreement
shall in all respects be effective with respect to the Obligations, as though
such payment had not been made; and if any of the Collateral been released or
returned to Pledgor, then Pledgor shall return such Collateral to GBC, to be
held and dealt with in accordance with the terms of this Agreement.
9. GENERAL PROVISIONS. This Agreement and the documents referred to
herein are the entire and only agreements between Pledgor and GBC with respect
to the subject matter hereof, and all representations, warranties, agreements,
or undertakings heretofore or contemporaneously made, with respect to the
subject matter hereof, which are not set forth herein or therein, are
superseded hereby. The terms and provisions hereof may not be waived, altered,
modified, or amended except in a writing executed by Pledgor and GBC. All
rights, benefits and privileges hereunder shall inure to the benefit of and be
enforceable by GBC and its successors and assigns and shall be binding upon
Pledgor and its successors and assigns; provided that Pledgor may not transfer
any of its rights hereunder without the prior written consent of GBC. Paragraph
headings are used herein for convenience only. Pledgor acknowledges that the
same may not describe completely the subject matter of the applicable
paragraphs and the same shall not be used in any manner to construe, limit,
define or interpret any term or provision hereof. Pledgor shall upon demand
reimburse GBC for all reasonable costs, fees and expenses (including without
limitation attorneys' fees, whether or not suit be brought), which are incurred
by GBC in connection with, or arising out of, this Agreement. This Agreement
and all acts and transactions pursuant hereto and the rights and obligations of
the
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35
GREYROCK BUSINESS CREDIT PLEDGE AGREEMENT
--------------------------------------------------------------------------------
parties hereto shall be governed, construed, and interpreted in accordance with
the internal laws (and not conflict of laws rules) of the State of California.
Pledgor hereby agrees that all actions or proceedings relating directly or
indirectly hereto may, at the option of GBC, be litigated in courts located
within said State, and Pledgor hereby expressly consents to the jurisdiction of
any such court and consents to the service of process in any such action or
proceeding by personal delivery or by certified or registered mailing directed
to Pledgor at its last address known to GBC.
10. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. GBC AND PLEDGOR EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING
OUT OF, OR IN ANY WAY RELATING TO: (i) THIS AGREEMENT; OR (ii) ANY OTHER PRESENT
OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN GBC AND PLEDGOR; OR (iii) ANY CONDUCT,
ACTS OR OMISSIONS OF GBC OR PLEDGOR OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH GBC OR
PLEDGOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE.
PLEDGOR:
VIXEL CORPORATION
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Title VP Finance
-------------------------
GBC:
GREYROCK BUSINESS CREDIT
Division of NationsCredit Commercial Corporation
By /s/ Xxxx Xxxxxx
-----------------------------
Title VP
-------------------------
EXHIBIT A
All "securities", "financial assets", "securities accounts", and "security
entitlements" (as those terms are defined in Division 8 of the California
Uniform Commercial Code in effect on the date hereof), including without
limitation any of the foregoing maintained at NationsBanc Xxxxxxxxxx
Securities, Inc., all "investment property" (as that term is defined in
Division 9 of the California Uniform Commercial Code in effect on the date
hereof), all rights and remedies related to, or arising out of, any and all of
the foregoing, and all proceeds of any of the foregoing.
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