Exhibit 10.8
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xx. 00000
(000) 000-0000 - Fax (000) 000-0000
ACCOUNTS RECEIVABLE PURCHASE AGREEMENT
This Accounts Receivable Purchase Agreement (the "Agreement") is made
as of the Effective Date by and between Silicon Valley Bank ("Buyer") having a
place of business at the address specified above, and Voxware, Inc., a Delaware
corporation, and Verbex Acquisition Corporation, a Delaware corporation (jointly
and severally the "Seller") having its principal place of business and chief
executive office at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxxxxxxxx, XX 00000 and with a
FAX number of (000) 000-0000.
1. Definitions. When used herein, the following terms shall have the following
meanings.
"Account Balance" shall mean, on any given day, the gross amount of all
Purchased Receivables unpaid on that day.
"Account Debtor" shall have the meaning set forth in the California
Uniform Commercial Code and shall include any person liable on any Purchased
Receivable, including without limitation, any guarantor of the Purchased
Receivable and any issuer of a letter of credit or banker's acceptance.
"Adjusted Quick Ratio" shall mean a ratio of Quick Assets to Current
Liabilities minus deferred revenue. "Adjustments" shall mean all discounts,
allowances, returns, disputes, counterclaims, offsets, defenses, rights of
recoupment, rights of return, warranty claims, or short payments, asserted by or
on behalf of any Account Debtor with respect to any Purchased Receivable.
"Advance" shall have the meaning set forth in Section 2.2 hereof.
"Collateral" shall have the meaning set forth in Section 8 hereof.
"Collateral Handling Fee" shall have the meaning as set forth in
Section 3.3 hereof.
"Collections" shall mean all good funds received by Buyer from or on
behalf of an Account Debtor with respect to Purchased Receivables.
"Compliance Certificate" shall mean a certificate, in a form provided
by Buyer to Seller, which contains the certification of the chief financial
officer of Seller that, among other things, the representations and warranties
set forth in this Agreement are true and correct as of the date such certificate
is delivered.
"Contingent Obligation" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"Current Liabilities" are the aggregate amount of Seller's Total
Liabilities which mature within one (1) year.
"Due Diligence Fee" shall have the meaning set forth in Section 3.7
hereof.
"Effective Date" is the date Buyer executes this Agreement.
"Event of Default" shall have the meaning set forth in Section 9
hereof.
"Facility Fee" shall have the meaning set forth in Section 3.6 hereof.
"Finance Charges" shall have the meaning set forth in Section 3.2
hereof.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"Invoice Transmittal" shall mean a writing signed by an authorized
representative of Seller which accurately identifies the receivables which
Buyer, at its election, may purchase, and includes for each such receivable the
correct amount owed by the Account Debtor, the name and address of the Account
Debtor, the invoice number, the invoice date and the account code.
"Obligations" shall mean all advances, financial accommodations,
liabilities, obligations, covenants and duties owing, arising, due or payable by
Seller to Buyer of any kind or nature, present or future, arising under or in
connection with this Agreement or under any other document, instrument or
agreement, whether or not evidenced by any note, guarantee or other instrument,
whether arising on account or by overdraft, whether direct or indirect
(including those acquired by assignment) absolute or contingent, primary or
secondary, due or to become due, now
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owing or hereafter arising, and however acquired; including, without limitation,
all Advances, Finance Charges, Collateral Handling Fees, interest, Repurchase
Amounts, fees, expenses, professional fees and attorneys' fees and any other
sums chargeable to Seller hereunder or otherwise.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"Prime Rate" shall mean the Buyer's most recently announced "prime
rate," even if it is not Buyer's lowest rate.
"Purchased Receivables" shall mean all those accounts, receivables,
chattel paper, instruments, contract rights, documents, general intangibles,
letters of credit, drafts, bankers acceptances, and rights to payment, and all
proceeds thereof (all of the foregoing being referred to as "receivables"),
arising out of the invoices and other agreements identified on or delivered with
any Invoice Transmittal delivered by Seller to Buyer which Buyer elects to
purchase and for which Buyer makes an Advance.
"Quick Assets" is, on any date, the Seller's consolidated, unrestricted
cash, cash equivalents, net billed accounts receivable and investments with
maturities of fewer than 12 months determined according to GAAP.
"Refund" shall have the meaning set forth in Section 3.5 hereof.
"Reserve" shall have the meaning set forth in Section 2.4 hereof.
"Repurchase Amount" shall have the meaning set forth in Section 4.2
hereof.
"Reconciliation Date" shall mean the last calendar day of each
Reconciliation Period.
"Reconciliation Period" shall mean each calendar month of every year.
"Subordinated Debt" is debt incurred by Seller subordinated to Seller's
debt to Buyer (and identified as subordinated by Seller and Buyer).
"Total Liabilities" is on any day, obligations that should, under GAAP,
be classified as liabilities on Seller's consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
2. Purchase and Sale of Receivables.
2.1. Offer to Sell Receivables. During the term hereof, and provided that
there does not then exist any Event of Default or any event that with notice,
lapse of time or otherwise would constitute an Event of Default, Seller may
request that Buyer purchase receivables and Buyer may, in its sole discretion,
elect to purchase receivables. Seller shall deliver to Buyer an Invoice
Transmittal with respect to any receivable for which a request for purchase is
made. An authorized representative of Seller shall sign each Invoice Transmittal
delivered to Buyer. Buyer shall be entitled to rely on all the information
provided by Seller to Buyer on or with the Invoice Transmittal and to rely on
the signature on any Invoice Transmittal as an authorized signature of Seller.
2.2. Acceptance of Receivables. Buyer shall have no obligation to purchase
any receivable listed on an Invoice Transmittal. Buyer may exercise its sole
discretion in approving the credit of each Account Debtor before buying any
receivable. Upon acceptance by Buyer of all or any of the receivables described
on any Invoice Transmittal, Buyer shall pay to Seller 80(%) percent of the face
amount of each receivable Buyer desires to purchase, net of deferred revenue and
offsets related to each specific Account Debtor, provided however, if Seller
maintains an Adjusted Quick Ratio of greater than 2.0:1.0, then Buyer may
include deferred revenue in the eligible receivables Buyer desires to purchase.
Such payment shall be the "Advance" with respect to such receivable. Buyer may,
from time to time, in its sole discretion, change the percentage of the Advance.
Upon Buyer's acceptance of the receivable and payment to Seller of the Advance,
the receivable shall become a "Purchased Receivable." It shall be a condition to
each Advance that (i) all of the representations and warranties set forth in
Section 6 of this Agreement be true and correct on and as of the date of the
related Invoice Transmittal and on and as of the date of such Advance as though
made at and as of each such date, and (ii) no Event of Default or any event or
condition that with notice, lapse of time or otherwise would constitute an Event
of Default shall have occurred and be continuing, or would result from such
Advance. Notwithstanding the foregoing, in no event shall the aggregate amount
of all Purchased Receivables outstanding at any time exceed Three Hundred Twelve
Thousand Five Hundred Dollars ($312,500.00).
2.3. Effectiveness of Sale to Buyer. Effective upon Buyer's payment of an
Advance, and for and in consideration therefor and in consideration of the
covenants of this Agreement, Seller hereby absolutely sells, transfers and
assigns to Buyer, all of Seller's right, title and interest in and to each
Purchased Receivable and all monies due or which may become due on or with
respect to such Purchased Receivable. Buyer shall be the absolute owner of each
Purchased Receivable. Buyer shall have, with respect to any goods related to the
Purchased Receivable, all the rights and remedies of an unpaid seller under the
California Uniform Commercial
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Code and other applicable law, including the rights of replevin, claim and
delivery, reclamation and stoppage in transit.
2.4. Establishment of a Reserve. Upon the purchase by Buyer of each Purchased
Receivable, Buyer shall establish a reserve. The reserve shall be the amount by
which the face amount of the Purchased Receivable exceeds the Advance on that
Purchased Receivable (the "Reserve"); provided, the Reserve with respect to all
Purchased Receivables outstanding at any one time shall be an amount not less
than 20(%) percent of the Account Balance at that time and may be set at a
higher percentage at Buyer's sole discretion. The reserve shall be a book
balance maintained on the records of Buyer and shall not be a segregated fund.
3. Collections, Charges and Remittances.
3.1. Collections. Upon receipt by Buyer of Collections, Buyer shall credit
such Collections to Seller's Account Balance 3 business days after receipt of
the Collections; provided, that if Seller is in default under this Agreement,
Buyer shall apply all Collections to Seller's Obligations hereunder in such
order and manner as Buyer may determine. If an item of collection is not honored
or Buyer does not receive good funds for any reason, the amount shall be
included in the Account Balance as if the Collections had not been received and
Finance Charges under Section 3.2 shall accrue thereon.
3.2. Finance Charges. On each Reconciliation Date Seller shall pay to Buyer a
finance charge in an amount equal to 2.00 percentage points above the Prime Rate
per annum multiplies by the gross average daily Account Balance outstanding
during the applicable Reconciliation Period (the "Finance Charges"). Buyer shall
deduct the accrued Finance Charges from the Reserve as set forth in Section 3.5
below.
3.3. Collateral Handling Fee. On each Reconciliation Date, Seller will pay
to Buyer a collateral handling fee, equal to .25 (%) percent per month of the
average daily Account Balance outstanding during the applicable Reconciliation
Period (the "Collateral Handling Fee"). Buyer shall deduct the Collateral
Handling Fee from the Reserve as set forth in Section 3.5 below.
3.4. Accounting. Buyer shall prepare and send to Seller after the close of
business for each Reconciliation Period, an accounting of the transactions for
that Reconciliation Period, including the amount of all Purchased Receivables,
all Collections, Adjustments, Finance Charges, and the Collateral Handling Fee.
The accounting shall be deemed correct and conclusive unless Seller makes
written objection to Buyer within thirty (30) days after the Buyer mails the
accounting to Seller.
3.5. Refund to Seller. Provided that there does not then exist an Event of
Default or any event or condition that with notice, lapse of time or otherwise
would constitute an Event of Default, Buyer shall refund to Seller by check
after the Reconciliation Date, the amount, if any, which Buyer owes to Seller at
the end of the Reconciliation Period according to the accounting prepared by
Buyer for that Reconciliation Period (the "Refund"). The Refund shall be an
amount equal to:
(A) (1) The Reserve as of the beginning of that Reconciliation Period,
plus
(2) the Reserve created for each Purchased Receivable purchased
during that Reconciliation Period, minus
(B) The total for that Reconciliation Period of:
(1) the Collateral Handling Fee;
(2) Finance Charges;
(3) Adjustments;
(4) Repurchase Amounts, to the extent Buyer has agreed to accept
payment thereof by deduction from the Refund;
(5) the Reserve for the Account Balance as of the first day of the
following Reconciliation Period in the minimum percentage
set forth in Section 2.4 hereof; and
(6) all amounts due, including professional fees and expenses, as
set forth in Section 12 for which oral or written demand has
been made by Buyer to Seller during that Reconciliation Period
to the extent Buyer has agreed to accept payment thereof by
deduction from the Refund.
In the event the formula set forth in this Section 3.5 results in an amount due
to Buyer from Seller, Seller shall make such payment in the same manner as set
forth in Section 4.3 hereof for repurchases. If the formula set forth in this
Section 3.5 results in an amount due to Seller from Buyer, Buyer shall make such
payment by check, subject to Buyer's rights under Section 4.3 and Buyer's rights
of offset and recoupment.
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3.6. Facility Fee. A fully earned, non-refundable facility fee of $6,500.00
shall be due upon execution of this Agreement.
3.7. Due Diligence Fee. Seller has paid to Buyer a due diligence fee of
$2,500.00 to initiate Buyer's due diligence review process. Any portion of this
fee not utilized to pay expenses will be applied to the Facility Fee.
4. Recourse and Repurchase Obligations.
4.1. Recourse. Buyer's acquisition of Purchased Receivables from Seller
shall be with full recourse against Seller. In the event the Obligations exceed
the amount of Purchased Receivables and Collateral, Seller shall be liable for
any deficiency.
4.2. Seller's Agreement to Repurchase. Seller agrees to pay to Buyer on
demand, the full face amount, or any unpaid portion, of any Purchased
Receivable:
(A) which remains unpaid ninety (90) calendar days after the invoice
date; or
(B) which is owed by any Account Debtor who has filed, or has had
filed against it, any bankruptcy case, assignment for the benefit of
creditors, receivership, or insolvency proceeding or who has become
insolvent (as defined in the United States Bankruptcy Code) or who is
generally not paying its debts as such debts become due; or
(C) with respect to which there has been any breach of warranty or
representation set forth in Section 6 hereof or any breach of any
covenant contained in this Agreement; or
(D) with respect to which the Account Debtor asserts any discount,
allowance, return, dispute, counterclaim, offset, defense, right of
recoupment, right of return, warranty claim, or short payment; together with all
reasonable attorneys' and professional fees and expenses and all court costs
incurred by Buyer in collecting such Purchased Receivable and/or enforcing its
rights under, or collecting amounts owed by Seller in connection with, this
Agreement (collectively, the "Repurchase Amount").
4.3. Seller's Payment of the Repurchase Amount or Other Amounts Due Buyer.
When any Repurchase Amount or other amount owing to Buyer becomes due, Buyer
shall inform Seller of the manner of payment which may be any one or more of the
following in Buyer's sole discretion: (a) in cash immediately upon demand
therefor; (b) by delivery of substitute invoices and an Invoice Transmittal
acceptable to Buyer which shall thereupon become Purchased Receivables; (c) by
adjustment to the Reserve pursuant to Section 3.5 hereof; (d) by deduction from
or offset against the Refund that would otherwise be due and payable to Seller;
(e) by deduction from or offset against the amount that otherwise would be
forwarded to Seller in respect of any further Advances that may be made by
Buyer; or (f) by any combination of the foregoing as Buyer may from time to time
choose.
4.4. Seller's Agreement to Repurchase All Purchased Receivables. Upon and
after the occurrence of an Event of Default, Seller shall, upon Buyer's demand
(or, in the case of an Event of Default under Section 9(B), immediately without
notice or demand from Buyer) repurchase all the Purchased Receivables then
outstanding, or such portion thereof as Buyer may demand. Such demand may, at
Buyer's option, include and Seller shall pay to Buyer immediately upon demand,
cash in an amount equal to the Advance with respect to each Purchased Receivable
then outstanding together with all accrued Finance Charges, Adjustments,
Collateral Handling Fees, attorney's and professional fees, court costs and
expenses as provided for herein, and any other Obligations. Upon receipt of
payment in full of the Obligations, Buyer shall immediately instruct Account
Debtors to pay Seller directly, and return to Seller any Refund due to Seller.
For the purpose of calculating any Refund due under this Section only, the
Reconciliation Date shall be deemed to be the date Buyer receives payment in
good funds of all the Obligations as provided in this Section 4.4.
5. Power of Attorney. Seller does hereby irrevocably appoint Buyer and its
successors and assigns as Seller's true and lawful attorney in fact, and hereby
authorizes Buyer, regardless of whether there has been an Event of Default, (a)
to sell, assign, transfer, pledge, compromise, or discharge the whole or any
part of the Purchased Receivables; (b) to demand, collect, receive, xxx, and
give releases to any Account Debtor for the monies due or which may become due
upon or with respect to the Purchased Receivables and to compromise, prosecute,
or defend any action, claim, case or proceeding relating to the Purchased
Receivables, including the filing of a claim or the voting of such claims in any
bankruptcy case, all in Buyer's name or Seller's name, as Buyer may choose; (c)
to prepare, file and sign Seller's name on any notice, claim, assignment,
demand, draft, or notice of or satisfaction of lien or mechanics' lien or
similar document with respect to Purchased Receivables; (d) to notify all
Account Debtors with respect to the Purchased Receivables to pay Buyer directly;
(e) to receive, open, and dispose of all mail addressed to Seller for the
purpose of collecting the Purchased Receivables; (f) to endorse Seller's name on
any checks or other forms of payment on the Purchased Receivables; (g) to
execute on behalf of Seller any and all
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instruments, documents, financing statements and the like to perfect Buyer's
interests in the Purchased Receivables and Collateral; and (h) to do all acts
and things necessary or expedient, in furtherance of any such purposes. If Buyer
receives a check or item which is payment for both a Purchased Receivable and
another receivable, the funds shall first be applied to the Purchased Receivable
and, so long as there does not exist an Event of Default or an event that with
notice, lapse of time or otherwise would constitute an Event of Default, the
excess shall be remitted to Seller. Upon the occurrence and continuation of an
Event of Default, all of the power of attorney rights granted by Seller to Buyer
hereunder shall be applicable with respect to all Purchased Receivables and all
Collateral.
6. Representations, Warranties and Covenants.
6.1. Receivables' Warranties, Representations and Covenants. To induce Buyer
to buy receivables and to renders its services to Seller, and with full
knowledge that the truth and accuracy of the following are being relied upon by
the Buyer in determining whether to accept receivables as Purchased Receivables,
Seller represents, warrants, covenants and agrees, with respect to each Invoice
Transmittal delivered to Buyer and each receivable described therein, that:
(A) Seller is the absolute owner of each receivable set forth in the
Invoice Transmittal and has full legal right to sell, transfer and
assign such receivables;
(B) The correct amount of each receivable is as set forth in the Invoice
Transmittal and is not in dispute;
(C) The payment of each receivable is not contingent upon the
fulfillment of any obligation or contract, past or future and any and
all obligations required of the Seller have been fulfilled as of the
date of the Invoice Transmittal;
(D) Each receivable set forth on the Invoice Transmittal is based on an
actual sale and delivery of goods and/or services actually rendered, is
presently due and owing to Seller, is not past due or in default, has
not been previously sold, assigned, transferred, or pledged, and is free
of any and all liens, security interests and encumbrances other than
liens, security interests or encumbrances in favor of Buyer or any other
division or affiliate of Silicon Valley Bank;
(E) There are no defenses, offsets, or counterclaims against any of the
receivables, and no agreement has been made under which the Account
Debtor may claim any deduction or discount, except as otherwise stated
in the Invoice Transmittal;
(F) Each Purchased Receivable shall be the property of the Buyer and
shall be collected by Buyer, but if for any reason it should be paid to
Seller, Seller shall promptly notify Buyer of such payment, shall hold
any checks, drafts, or monies so received in trust for the benefit of
Buyer, and shall promptly transfer and deliver the same to the Buyer;
(G) Buyer shall have the right of endorsement, and also the right to
require endorsement by Seller, on all payments received in connection
with each Purchased Receivable and any proceeds of Collateral;
(H) Seller, and to Seller's best knowledge, each Account Debtor set
forth in the Invoice Transmittal, are and shall remain solvent as that
term is defined in the United States Bankruptcy Code and the California
Uniform Commercial Code, and no such Account Debtor has filed or had
filed against it a voluntary or involuntary petition for relief under
the United States Bankruptcy Code;
(I) Each Account Debtor named on the Invoice Transmittal will not object
to the payment for, or the quality or the quantity of the subject matter
of, the receivable and is liable for the amount set forth on the Invoice
Transmittal;
(J) Each Account Debtor shall promptly be notified, after acceptance by
Buyer, that the Purchased Receivable has been transferred to and is
payable to Buyer, and Seller shall not take or permit any action to
countermand such notification;
(K) Seller will remit all payment's for accounts to the Buyer by the
close of business on each Friday along with a detailed cash receipts
journal and shall immediately notify and direct all of the Seller's
Account Debtor's to make all payment's for Seller's accounts to a
lockbox account established with the Buyer ("Lockbox") or to wire
transfer payments to a cash collateral account that Buyer controls. It
will be considered an immediate Event of Default if the Lockbox is not
set-up and operational by June 30, 2003; and
(L) All receivables forwarded to and accepted by Buyer after the date
hereof, and thereby becoming Purchased Receivables, shall comply with
each and every one of the foregoing representations, warranties,
covenants and agreements referred to above in this Section 6.1.
6.2. Additional Warranties, Representations and Covenants. In addition to the
foregoing warranties, representations and covenants, to induce Buyer to buy
receivables and to render its services to Seller, Seller hereby represents,
warrants, covenants and agrees that:
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(A) Seller will not assign, transfer, sell, or grant, or permit any lien
or security interest in any Purchased Receivables or Collateral to or in
favor of any other party, without Buyer's prior written consent;
(B) The Seller's name, form of organization, chief executive office, and
the place where the records concerning all Purchased Receivables and
Collateral are kept is set forth at the beginning of this Agreement,
Collateral is located only at the location set forth in the beginning of
this Agreement, or, if located at any additional location, as set forth
on a schedule attached to this Agreement, and Seller will give Buyer at
least thirty (30) days prior written notice if such name, organization,
chief executive office or other locations of Collateral or records
concerning Purchased Receivables or Collateral is changed or added and
shall execute any documents necessary to perfect Buyer's interest in the
Purchased Receivables and the Collateral;
(C) Seller shall (i) pay all of its normal gross payroll for employees,
and all federal and state taxes, as and when due, including without
limitation all payroll and withholding taxes and state sales taxes; (ii)
deliver at any time and from time to time at Buyer's request, evidence
satisfactory to Buyer that all such amounts have been paid to the proper
taxing authorities; and (iii) if requested by Buyer, pay its payroll and
related taxes through a bank or an independent payroll service
acceptable to Buyer;
(D) Seller has not, as of the xxxx Xxxxxx delivers to Buyer an Invoice
Transmittal, or as of the xxxx Xxxxxx accepts any Advance from Buyer,
filed a voluntary petition for relief under the United States Bankruptcy
Code or had filed against it an involuntary petition for relief;
(E) If Seller owns, holds or has any interest in, any copyrights
(whether registered, or unregistered), patents or trademarks, and
licenses of any of the foregoing, such interest has been disclosed to
Buyer and is specifically listed and identified on a schedule to this
Agreement, and Seller shall immediately notify Buyer if Seller hereafter
obtains any interest in any additional copyrights, patents, trademarks
or licenses that are significant in value or are material to the conduct
of its business;
(F) Seller shall provide Buyer, as soon as available, but no later than
30 days following the end of each calendar month, (i) a Compliance
Certificate, and (ii) a company prepared balance sheet and income
statement, prepared under GAAP, consistently applied, covering Seller's
operations during the period;
(G) Seller shall provide Buyer: (i) as soon as available, but no later
than 20 days following the end of each calendar month, an aged listing
of accounts receivable (by invoice date) and accounts payable (by
invoice date); (ii) as soon as available, but no later than 30 days
following the end of each calendar month and prior to each Advance, a
deferred revenue report; (iii) as soon as available, but no later than
180 days after the last day of Seller's fiscal year, a Compliance
Certificate, and audited consolidated financial statements prepared
under GAAP, consistently applied, together with an unqualified opinion
on the financial statements from an independent certified public
accounting firm reasonably acceptable to Buyer; (iv) a prompt report of
any legal actions pending or threatened against Seller that could result
in damages or costs to Seller; and (v) budgets, sales projections,
operating plans or other financial information Buyer reasonably
requests;
(H) On request by Buyer, Seller will promptly furnish any information
Buyer may reasonably request to determine financial condition of Seller,
including, but not limited to all of Seller's Obligations, and the
condition of any of Seller's receivables which may include but are not
limited to Purchased Receivables;
(I) Seller will allow Buyer to audit Seller's Collateral, including but
not limited to Seller's Accounts, at Sellers expense, at such time and
interval at Buyer's sole discretion and without notification and
authorization from Seller; and
(J) Seller will maintain its primary operating deposit accounts with
Buyer.
7. Adjustments. In the event of a breach of any of the representations,
warranties, or covenants set forth in Section 6.1, or in the event any
Adjustment or dispute is asserted by any Account Debtor, Seller shall promptly
advise Buyer and shall, subject to the Buyer's approval, resolve such disputes
and advise Buyer of any adjustments. Unless the disputed Purchased Receivable is
repurchased by Seller and the full Repurchase Amount is paid, Buyer shall remain
the absolute owner of any Purchased Receivable which is subject to Adjustment or
repurchase under Section 4.2 hereof, and any rejected, returned, or recovered
personal property, with the right to take possession thereof at any time. If
such possession is not taken by Buyer, Seller is to resell it for Buyer's
account at Seller's expense with the proceeds made payable to Buyer. While
Seller retains possession of said returned goods, Seller shall segregate said
goods and xxxx them "property of Silicon Valley Bank."
8. Security Interest. To secure the prompt payment and performance to Buyer of
all of the Obligations, Seller hereby grants to Buyer a continuing lien upon and
security interest in all of Seller's now existing or hereafter arising rights
and interest in the following, whether now owned or existing or hereafter
created, acquired, or arising, and wherever located (collectively, the
"Collateral"):
(A) All accounts, receivables, contract rights related to accounts and
receivables and license agreements relating to the foregoing;
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(B) All inventory, including Seller's rights to any returned or rejected
goods, with respect to which Buyer shall have all the rights of any
unpaid seller, including the rights of replevin, claim and delivery,
reclamation, and stoppage in transit;
(C) All monies, refunds or other amounts due or paid to Seller relating
to the foregoing;
(D) All accessions to, substitutions for, and replacements of, all of
the foregoing;
(E) All books and records pertaining to all of the foregoing; and
(F) All proceeds of the foregoing, whether due to voluntary or
involuntary disposition, including insurance proceeds.
Seller is not authorized to sell, assign, transfer or otherwise convey
any Collateral without Buyer's prior written consent, except for the sale of
finished inventory in the Seller's usual course of business. Seller agrees to
sign UCC financing statements, in a form acceptable to Buyer, and any other
instruments and documents requested by Buyer to evidence, perfect, or protect
the interests of Buyer in the Collateral. Seller agrees to deliver to Buyer the
originals of all instruments, chattel paper and documents evidencing or related
to Purchased Receivables and Collateral.
9. Default. The occurrence of any one or more of the following shall constitute
an Event of Default hereunder.
(A) Seller fails to pay any amount owed to Buyer as and when due;
(B) There shall be commenced by or against Seller any voluntary or
involuntary case under the United States Bankruptcy Code, or any
assignment for the benefit of creditors, or appointment of a receiver or
custodian for any of its assets;
(C) Seller shall become insolvent in that its debts are greater than the
fair value of its assets, or Seller is generally not paying its debts as
they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment or the like is issued
against or attaches to the Purchased Receivables or any Collateral;
(E) Seller shall breach any covenant, agreement, warranty, or
representation shall constitute an immediate default hereunder;
(F) Seller is not in compliance with, or otherwise is in default under,
any term of any document, instrument or agreement evidencing a debt,
obligation or liability of any kind or character of Seller, now or
hereafter existing, in favor of Buyer or any division or affiliate of
Silicon Valley Bank, regardless of whether such debt, obligation or
liability is direct or indirect, primary or secondary, joint, several or
joint and several, or fixed or contingent, together with any and all
renewals and extensions of such debts, obligations and liabilities, or
any part thereof;
(G) An event of default shall occur under any guaranty executed by any
guarantor of the Obligations of Seller to Buyer under this Agreement, or
any material provision of any such guaranty shall for any reason cease
to be valid or enforceable or any such guaranty shall be repudiated or
terminated, including by operation of law;
(H) A default or event of default shall occur under any agreement
between Seller and any creditor of Seller that has entered into a
subordination agreement with Buyer;
(I) Any creditor that has entered into a subordination agreement with
Buyer shall breach any of the terms of or not comply with such
subordination agreement; or
(J) (i) There is a material adverse change in the business, operations,
or condition (financial or otherwise) of the Seller, or (ii) there is a
material impairment of the prospect of repayment of any portion of the
Obligations or (iii) there is a material impairment of the value or
priority of Buyer's security interests in the Collateral.
10. Remedies Upon Default. Upon the occurrence of an Event of Default, (1)
without implying any obligation to buy receivables, Buyer may cease buying
receivables or extending any financial accommodations to Seller; (2) all or a
portion of the Obligations shall be, at the option of and upon demand by Buyer,
or with respect to an Event of Default described in Section 9(B), automatically
and without notice or demand, due and payable in full; and (3) Buyer shall have
and may exercise all the rights and remedies under this Agreement and under
applicable law, including the rights and remedies of a secured party under the
California Uniform Commercial Code, all the power of attorney rights described
in Section 5 with respect to all Collateral, and the right to collect, dispose
of, sell, lease, use, and realize upon all Purchased Receivables and all
Collateral in any commercial reasonable manner. Seller and Buyer agree that any
notice of sale required to be given to Seller shall be deemed to be reasonable
if given five (5) days prior to the date on or after which the sale may be held.
In the event that the Obligations are accelerated hereunder, Seller shall
repurchase all of the Purchased Receivables as set forth in Section 4.4.
11. Accrual of Interest. If any amount owed by Seller hereunder is not paid when
due, including, without limitation, amounts due under Section 3.5, Repurchase
Amounts, amounts due under Section 12, and any other Obligations, such amounts
shall bear interest at a per annum rate equal to the per annum rate of the
Finance
Page 7
Charges until the earlier of (i) payment in good funds or (ii) entry of a final
judgment thereof, at which time the principal amount of any money judgment
remaining unsatisfied shall accrue interest at the highest rate allowed by
applicable law.
12. Fees, Costs and Expenses; Indemnification. Seller will pay to Buyer
immediately upon demand all fees, costs and expenses (including fees of
attorneys and professionals and their costs and expenses) that Buyer incurs or
may from time to time impose in connection with any of the following: (a)
preparing, negotiating, administering, and enforcing this Agreement or any other
agreement executed in connection herewith, including any amendments, waivers or
consents in connection with any of the foregoing, (b) any litigation or dispute
(whether instituted by Buyer, Seller or any other person) in any way relating to
the Purchased Receivables, the Collateral, this Agreement or any other agreement
executed in connection herewith or therewith, (c) enforcing any rights against
Seller or any guarantor, or any Account Debtor, (d) protecting or enforcing its
interest in the Purchased Receivables or the Collateral, (e) collecting the
Purchased Receivables and the Obligations, and (f) the representation of Buyer
in connection with any bankruptcy case or insolvency proceeding involving
Seller, any Purchased Receivable, the Collateral, any Account Debtor, or any
guarantor. Seller shall indemnify and hold Buyer harmless from and against any
and all claims, actions, damages, costs, expenses, and liabilities of any nature
whatsoever arising in connection with any of the foregoing.
13. Severability, Waiver, and Choice of Law. In the event that any provision of
this Agreement is deemed invalid by reason of law, this Agreement will be
construed as not containing such provision and the remainder of the Agreement
shall remain in full force and effect. Buyer retains all of its rights, even if
it makes an Advance after an Event of Default. If Buyer waives an Event of
Default, it may enforce a later Event of Default. Any consent or waiver under,
or amendment of, this Agreement must be in writing. Nothing contained herein, or
any action taken or not taken by Buyer at any time, shall be construed at any
time to be indicative of any obligation or willingness on the part of Buyer to
amend this Agreement or to grant to Seller any waivers or consents. This
Agreement has been transmitted by Seller to Buyer at Buyer's office in the State
of California and has been executed and accepted by Buyer in the State of
California. This Agreement shall be governed by and interpreted in accordance
with the internal laws of the State of California.
14. Lockbox Account Collection Services. Seller shall enter into a three party
agreement (the "Lockbox Agreement") with Buyer and a lockbox provider (the
"Lockbox Provider"). The Lockbox Agreement and Lockbox Provider shall be
acceptable to Buyer. Seller shall use the lockbox address as the payment address
on all invoices issued by Seller and shall direct all its Account Debtors to
remit their payments to the lockbox address. The Lockbox Agreement shall provide
that the Lockbox Provider shall remit all collections received in the lockbox to
Buyer. Upon Buyer's receipt of such collections, and provided that there does
not then exist an Event of Default or event that with notice, lapse or time or
otherwise would constitute an Event of Default, and subject to Buyer's rights in
the Collateral, Buyer agrees to remit promptly to Seller the amount of the
receivables collections it receives with respect to receivables other than
Purchased Receivables. It is understood and agreed by Seller that this Section
does not impose any affirmative duty on Buyer to do any act other than to turn
over such amounts. All such receivables and collections are Collateral and in
the event of Seller's default hereunder, Buyer shall have no duty to remit
collections of Collateral and may apply such collections to the obligations
hereunder and Buyer shall have the rights of a secured party under the
California Uniform Commercial Code.
15. Notices. Unless otherwise provided in this Agreement, all notices or demands
by any party relating to this Agreement or any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by a recognized overnight
delivery service, certified mail, postage prepaid, return receipt requested, or
by telefacsimile to Seller or to Buyer, as the case may be, at its addresses set
above.
Subrogation and Similar Rights. Notwithstanding any other provision of this
Agreement or any other document related to this Agreement, until payment to
Buyer in full and performance of all Obligations, each Seller irrevocably waives
all rights that it may have at law or in equity (including, without limitation,
any law subrogating the Seller to the rights of Buyer under this Agreement) to
seek contribution, indemnification, or any other form of reimbursement from any
other Seller, or any other entity now or hereafter primarily or secondarily
liable for any of the Obligations, for any payment made by the Seller with
respect to the Obligations in connection with this Agreement or otherwise and
all rights that it might have to benefit from, or to participate in, any
security for the Obligations as a result of any payment made by the Seller with
respect to the Obligations in connection with this Agreement or otherwise. Any
agreement providing for indemnification, reimbursement or any other arrangement
prohibited under this Section 16 shall be null and void. If any payment is made
to a Seller in contravention of this Section 16, such Seller shall hold
Page 8
such payment in trust for Buyer and such payment shall be promptly delivered to
Buyer for application to the Obligations, whether matured or unmatured.
Waivers of Notice. Each Seller waives notice of acceptance hereof; notice of the
existence, creation or acquisition of any of the Obligations; notice of an Event
of Default; notice of the amount of the Obligations outstanding at any time;
notice of intent to accelerate; notice of acceleration; notice of any adverse
change in the financial condition of any other Seller or of any other fact that
might increase the Seller's risk; presentment for payment; demand; protest and
notice thereof as to any instrument; default; and all other notices and demands
to which the Seller would otherwise be entitled. Each Seller waives any defense
arising from any defense of any other Seller, or by reason of the cessation from
any cause whatsoever of the liability of any other Seller. Buyer's failure at
any time to require strict performance by any Seller of any provision of this
Agreement shall not waive, alter or diminish any right of Buyer thereafter to
demand strict compliance and performance therewith. Nothing contained herein
shall prevent Buyer from foreclosing on the lien of any deed of trust, mortgage
or other security instrument, or exercising any rights available thereunder, and
the exercise of any such rights shall not constitute a legal or equitable
discharge of any Seller. Each Seller also waives any defense arising from any
act or omission of Buyer that changes the scope of the Seller's risks hereunder.
Each Seller hereby waives any right to assert against Buyer any defense (legal
or equitable), setoff, counterclaim, or claims that such Seller individually may
now or hereafter have against another Seller or any other entity liable to
Seller with respect to the Obligations in any manner or whatsoever until the
Obligations are paid in full to Buyer.
Subrogation Defenses. Each Seller waives the benefits, if any, of any statutory
or common law rule that may permit a borrower to assert any defenses of a surety
or guarantor, or that may give a borrower the right to require a senior creditor
to marshal assets, and Seller agrees that it shall not assert any such defenses
or rights.
Right to Settle, Release. The liability of Seller hereunder shall not be
diminished by (i) any agreement, understanding or representation that any of the
Obligations is or was to be guaranteed by another entity or secured by other
property, or (ii) any release or unenforceability, whether partial or total, or
rights, if any, which Seller may now or hereafter have against any other entity,
including another Seller, or property with respect to any of the Obligations.
Without notice to any Seller and without affecting the liability of any Seller
hereunder, Buyer may (i) compromise, settle, renew, extend the time for payment,
change the manner or terms of payment, discharge the performance of, decline to
enforce, or release all or any of the Obligations with respect to a Seller, (ii)
grant other indulgences to a Seller in respect of the Obligations, (iii) modify
in any manner any documents, relating to the Obligations with respect to a
Seller, (iv) release, surrender or exchange any deposits or other property
securing the Obligations, whether pledged by a Seller or any other entity, or
(v) compromise, settle renew, or extend the time for payment, discharge the
performance of, decline to enforce, or release all or any obligations of any
guarantor, endorser or other entity who is now or may hereafter be liable with
respect to any of the Obligations.
16. Jury Trial. SELLER AND BUYER EACH HEREBY (a) WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL ON ANY CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, ANY RELATED AGREEMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY; (b) RECOGNIZE AND AGREE THAT THE FOREGOING WAIVER CONSTITUTES
A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT; AND (c) REPRESENT AND
WARRANT THAT IT HAS REVIEWED THIS WAIVER, HAS DETERMINED FOR ITSELF THE
NECESSITY TO REVIEW THE SAME WITH ITS LEGAL COUNSEL, AND KNOWINGLY AND
VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL.
17. Term and Termination. The term of this Agreement shall be through April 24,
2004 unless terminated in writing by Buyer or Seller. Seller and Buyer shall
each have the right to terminate this Agreement at any time. Notwithstanding the
foregoing, any termination of this Agreement shall not affect Buyer's security
interest in the Collateral and Buyer's ownership of the Purchased Receivables,
and this Agreement shall continue to be effective, and Buyer's rights and
remedies hereunder shall survive such termination, until all transactions
entered into and Obligations incurred hereunder or in connection herewith have
been completed and satisfied in full.
18. Titles and Section Headings. The titles and section headings used herein are
for convenience only and shall not be used in interpreting this Agreement.
19. Other Agreements. The terms and provisions of this Agreement shall not
adversely affect the rights of Buyer or any other division or affiliate of
Silicon Valley Bank under any other document, instrument or agreement. The terms
of such other documents, instruments and agreements shall remain in full force
and effect
Page 9
notwithstanding the execution of this Agreement. In the event of a conflict
between any provision of this Agreement and any provision of any other document,
instrument or agreement between Seller on the one hand, and Buyer or any other
division or affiliate of Silicon Valley Bank on the other hand, Buyer shall
determine in its sole discretion which provision shall apply. Seller
acknowledges specifically that any security agreements, liens and/or security
interests currently securing payment of any obligations of Seller owing to Buyer
or any other division or affiliate of Silicon Valley Bank also secure Seller's
obligations under this Agreement, and are valid and subsisting and are not
adversely affected by execution of this Agreement. Seller further acknowledges
that (a) any collateral under other outstanding security agreements or other
documents between Seller and Buyer or any other division or affiliate of Silicon
Valley Bank secures the obligations of Seller under this Agreement and (b) a
default by Seller under this Agreement constitutes a default under other
outstanding agreements between Seller and Buyer or any other division or
affiliate of Silicon Valley Bank.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement on the
day and year above written.
SELLER: VOXWARE, INC.
By /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Senior Vice President, Chief Financial Officer,
Treasurer and Secretary
SELLER: VERBEX ACQUISITION CORPORATION
By /s/ Xxxxxxxx Xxxxxx
-------------------------------------------
Senior Vice President, Chief Financial Officer,
Treasurer and Secretary
BUYER: SILICON VALLEY BANK
By Xxxx Xxxxxxxx
Title Vice President
Effective Date: May 6, 2003
EXHIBIT "A"
TO FINANCING STATEMENT AND SECURITY AGREEMENT
This FINANCING STATEMENT and SECURITY AGREEMENT covers the following types or
items of property (in addition to, and without limiting the types of property
set forth on page 1 hereof):
A) All accounts, receivables, contract rights related to accounts and
receivables and license agreements relating to the foregoing;
B) All inventory, including Seller's rights to any returned or rejected goods,
with respect to which Buyer shall have all the rights of any unpaid seller,
including the rights of replevin, claim and delivery, reclamation, and
stoppage in transit;
C) All monies, refunds or other amounts due or paid to Seller relating to the
foregoing;
D) All accessions to, substitutions for, and replacements of, all of the
foregoing;
E) All books and records pertaining to all of the foregoing; and
F) All proceeds of the foregoing, whether due to voluntary or involuntary
disposition, including insurance proceeds.
[LOGO]
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - Fax (000) 000-0000
CERTIFICATION of OFFICERS
The undersigned, being all the officers of Voxware, Inc., a Delaware
corporation (the "Corporation"), hereby certify to Silicon Valley Bank ("SVB")
that:
1. The correct name of the Corporation is Voxware, Inc., as set forth
in the Articles of Incorporation.
2. The Corporation was incorporated on August 20, 1993, under the laws
of the State of Delaware, and is in good standing under such laws.
3. The Corporation's place of business and chief executive office being
the place at which the Corporation maintains its books and records pertaining to
accounts, accounts receivables, contract rights, chattel paper, general
intangibles, instruments, documents, inventory, and equipment, is located at:
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
4. The Corporation has other places of business at the following
addressees:
000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
5. There is no provision in the Certificate of Incorporation, Articles
of Incorporation, or Bylaws of the Corporation, or in the laws of the State of
its incorporation, requiring any vote or consent of shareholders to authorize
the sale of receivables or the grant of a security interest in any assets of the
Corporation. Such power is vested exclusively in the Corporation's Board of
Directors.
6. The officers of the Corporation, and their respective titles and
signatures are as follows:
By /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------------------
Xxxxxxxx Xxxxxx, Senior Vice President,
Chief Financial Officer, Treasurer and
Secretary
(Principal Financial Officer and Principal Accounting Officer)
7. Except as indicated in this paragraph 7, each of the officers listed
in paragraph 6 has signatory powers with respect to all the Corporation's
transactions with SVB. Explanation of exceptions:
8. The undersigned shall give SVB prompt written notice of any change
or amendment with respect to any of the foregoing. Until such written notice is
received by SVB, SVB shall be entitled to rely upon the foregoing in all
respects.
IN WITNESS WHEREOF, the undersigned have executed this Certification of
Officers on this sixth day of May 2003.
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - Fax (000) 000-0000
SECRETARY'S CERTIFICATE OF RESOLUTION
The undersigned, as Secretary of Voxware, Inc., a Delaware corporation
(the "Corporation"), hereby certifies to Silicon Valley Bank that at a meeting
duly convened at which a quorum was present the following resolutions were
adopted by the Board of Directors of the Corporation and that such resolutions
have not been modified, amended, or rescinded in any respect and are in full
force and effect as of today's date.
RESOLVED, that this corporation be and hereby is authorized to sell
this corporation's accounts receivable to Silicon Valley Bank, and to grant
Silicon Valley Bank a security interest in this corporation's assets, including,
without limitation, accounts, accounts receivable, contract rights, chattel
paper, general intangibles, instruments, documents, letters of credit, drafts,
inventory and equipment, presently owned or hereafter acquired and proceeds and
products of the foregoing (the "Collateral," as defined in the Accounts
Receivable Purchase Agreement).
RESOLVED, that this corporation be and hereby is authorized and
directed to execute and deliver certain agreements in connection with the sale
of receivables, and granting of security interests in the Collateral to Silicon
Valley Bank including, without limitations, a Accounts Receivable Purchase
Agreement and UCC-1 financing statement.
RESOLVED, that the following named officers of this corporation
("Authorized Officers") be, and any of them hereby are, authorized, empowered,
and directed to execute and deliver to Silicon Valley Bank on behalf of this
corporation all such further agreements and instruments as may be deemed
necessary or advisable in order to fully effectuate the purposes and intent of
the foregoing resolutions.
Print Names of Authorized Officers: Title:
Xxxxxxxxx X. Xxxxxxxx President and Chief Executive Officer
-------------------------------------------- -----------------------------------------------------------------
Xxxxxxxx Xxxxxx Senior Vice-President, Chief Financial Officer, Treasurer
-------------------------------------------- -----------------------------------------------------------------
And Secretary
-------------------------------------------- -----------------------------------------------------------------
-------------------------------------------- -----------------------------------------------------------------
-------------------------------------------- -----------------------------------------------------------------
-------------------------------------------- -----------------------------------------------------------------
RESOLVED, that the Secretary or Assistant Secretary of this
corporation be, and hereby is authorized, empowered and directed to certify to
the passage of the foregoing resolutions under the seal of this corporation.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this
Sixth day of May, 2003.
Xxxxxxxx Xxxxxx
-----------------------------------------------------------------------
Senior Vice President, Chief Financial Officer, Treasurer and Secretary
(Principal Financial Officer and Principal Accounting Officer)
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - Fax (000) 000-0000
CERTIFICATION of OFFICERS
The undersigned, being all the officers of Verbex Acquisition
Corporation, a Delaware corporation (the "Corporation"), hereby certify to
Silicon Valley Bank ("SVB") that:
1. The correct name of the Corporation is Verbex Acquisition
Corporation, as set forth in the Articles of Incorporation.
2. The Corporation was incorporated on February 1999, under the laws of
the State of Delaware, and is in good standing under such laws.
3. The Corporation's place of business and chief executive office being
the place at which the Corporation maintains its books and records pertaining to
accounts, accounts receivables, contract rights, chattel paper, general
intangibles, instruments, documents, inventory, and equipment, is located at:
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
4. The Corporation has other places of business at the following
addressees:
000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
5. There is no provision in the Certificate of Incorporation, Articles
of Incorporation, or Bylaws of the Corporation, or in the laws of the State of
its incorporation, requiring any vote or consent of shareholders to authorize
the sale of receivables or the grant of a security interest in any assets of the
Corporation. Such power is vested exclusively in the Corporation's Board of
Directors.
6. The officers of the Corporation, and their respective titles and
signatures are as follows:
By /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------------------
Xxxxxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------------
Xxxxxxxx Xxxxxx, Senior Vice President,
Chief Financial Officer, Treasurer and
Secretary
(Principal Financial Officer and Principal Accounting Officer)
7. Except as indicated in this paragraph 7, each of the officers listed
in paragraph 6 has signatory powers with respect to all the Corporation's
transactions with SVB. Explanation of exceptions:
8. The undersigned shall give SVB prompt written notice of any change
or amendment with respect to any of the foregoing. Until such written notice is
received by SVB, SVB shall be entitled to rely upon the foregoing in all
respects.
IN WITNESS WHEREOF, the undersigned have executed this Certification of
Officers on this Sixth Day of May 2003.
By /s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
By: /s/ Xxxxxxxx Xxxxxx
------------------------------------------------
Xxxxxxxx Xxxxxx, Senior Vice President,
Chief Financial Officer, Treasurer and
Secretary
(Principal Financial Officer and Principal Accounting Officer)
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
(000) 000-0000 - Fax (000) 000-0000
SECRETARY'S CERTIFICATE OF RESOLUTION
The undersigned, as Secretary of Verbex Acquisition Corporation, a
Delaware corporation (the "Corporation"), hereby certifies to Silicon Valley
Bank that at a meeting duly convened at which a quorum was present the following
resolutions were adopted by the Board of Directors of the Corporation and that
such resolutions have not been modified, amended, or rescinded in any respect
and are in full force and effect as of today's date.
RESOLVED, that this corporation be and hereby is authorized to sell
this corporation's accounts receivable to Silicon Valley Bank, and to grant
Silicon Valley Bank a security interest in this corporation's assets, including,
without limitation, accounts, accounts receivable, contract rights, chattel
paper, general intangibles, instruments, documents, letters of credit, drafts,
inventory and equipment, presently owned or hereafter acquired and proceeds and
products of the foregoing (the "Collateral," as defined in the Accounts
Receivable Purchase Agreement).
RESOLVED, that this corporation be and hereby is authorized and
directed to execute and deliver certain agreements in connection with the sale
of receivables, and granting of security interests in the Collateral to Silicon
Valley Bank including, without limitations, a Accounts Receivable Purchase
Agreement and UCC-1 financing statement.
RESOLVED, that the following named officers of this corporation
("Authorized Officers") be, and any of them hereby are, authorized, empowered,
and directed to execute and deliver to Silicon Valley Bank on behalf of this
corporation all such further agreements and instruments as may be deemed
necessary or advisable in order to fully effectuate the purposes and intent of
the foregoing resolutions.
Print Names of Authorized Officers: Title:
----------------------------------------------- -----------------------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx President and Chief Executive Officer
----------------------------------------------- -----------------------------------------------------------------
Xxxxxxxx Xxxxxx Senior Vice-President, Chief Financial Officer, Treasurer
----------------------------------------------- -----------------------------------------------------------------
And Secretary
----------------------------------------------- -----------------------------------------------------------------
----------------------------------------------- -----------------------------------------------------------------
RESOLVED, that the Secretary or Assistant Secretary of this
corporation be, and hereby is authorized, empowered and directed to certify to
the passage of the foregoing resolutions under the seal of this corporation.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this
Sixth day of May, 2003.
Xxxxxxxx Xxxxxx
-----------------------------------------------------------------------
Senior Vice President, Chief Financial Officer, Treasurer and Secretary
(Principal Financial Officer and Principal Accounting Officer)
Secretary of Verbex Acquisition Corporation
