EXHIBIT 10.11
SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
(000) 000-0000 - Fax (000) 000-0000
NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT
(California)
This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the
"Agreement"), dated as of May 3, 1999 is between Silicon Valley Bank ("Buyer")
having a place of business at the address specified above and ANALOGY, INC., AN
OREGON CORPORATION, AND ITS WHOLLY OWNED SUBSIDIARIES ANALOGY, U.K., ANALOGY
SWEDEN AB, ANALOGY FRANCE S.A., AND ANALOGY, GMBH, INDIVIDUALLY AND
COLLECTIVELY, ("Seller") having its principal place of business and chief
executive office at :
Street Address: 0000 XX Xxxxxx Xxxxx
City: Beaverton
County: Washington
State: Oregon
Zip code: 97005
Fax: 503/000-0000
1. DEFINITIONS. When used herein, the following terms have the following
meanings.
1.1 "Account Debtor" has 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.
1.2 "Adjustments" means 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.
1.3 "Administrative Fee" means a fee payable by the Seller to the Buyer
in an amount equal to 0.50% of the Purchase Price.
1.4 "Discount Rate" means Silicon Valley Bank's Prime Rate plus
3.00% (fixed on date of Purchase.
1.5 "Due Date" means the date which is 60 days after the Purchase
Date for domestic Purchased Receivables and 90 days after the Purchase Date
for foreign Purchased Receivables.
1.6 "Event of Default" has the meaning set forth in Section 9
hereof.
1.7 "Payment in Full" means Buyer has received payments on account of
the Purchased Receivables equal to the Purchased Receivables Amount.
1.8 "Purchase Date" as defined on Exhibit A or Exhibit B Schedules.
1.9 "Purchase Price" which is calculated by discounting the Purchased
Receivables Amount by the Discount Rate for the number of days from the Purchase
Date to the Due Date.
1.10 "Purchased Receivables" means all those accounts, receivables,
chattel paper, instruments, contract rights, documents, general intangibles,
letters of credit, drafts, bankers acceptances, and other rights to payment, and
all proceeds thereof, arising out of the invoices and other agreements
identified on EXHIBIT A (DOMESTIC) AND EXHIBIT B (FOREIGN) submitted from time
to time.
1.11 "Purchased Receivables Amount" shall not exceed One Million Five
Hundred Thousand Dollars ($1,500,000.00) in aggregate at any one time, which is
the total of the Purchased Receivables as listed in Exhibit A (Domestic) and
Exhibit B (Foreign) submitted from time to time.
1.12 "Related Property" has the meaning as set forth in Section 9
hereof.
1.13 "Repurchase Amount" has the meaning set forth in Section 4.2
hereof.
1.14 "Reserve Amount" means the product of the Discount Rate and the
Purchased Receivables Amount multiplied by a fraction, the numerator of which is
the number of days in the Reserve Period and the denominator of which is 360
days.
1.15 "Reserve Period" means a period commencing on the Due Date and
ending 60 days thereafter for domestic Purchased receivables and 90 days
thereafter for foreign Purchased Receivables.
2. PURCHASE AND SALE OF RECEIVABLES.
2.1 SALE AND PURCHASE. Subject to the terms and conditions of this
Agreement, effective on the Purchase Date, Seller sells to Buyer and Buyer buys
from Seller all right, title, and interest (but none of the obligations with
respect to) of the Seller to the payment of all sums owing or to be owing from
the Account Debtors under the Purchased Receivables.
2.2 PURCHASE PRICE.
(A) PURCHASE PRICE. On the Purchase Date, the Purchase Price,
less the Reserve Amount, Security Deposit and the Administrative Fee, shall be
paid by Buyer to Seller. That portion of the Purchase Price consisting of the
Reserve Amount shall be payable to Seller only to the extent provided below.
(B) INTEREST RESERVE. If Payment in Full occurs on or before
the Due Date, Buyer shall pay the full Reserve Amount to Seller. If Payment in
Full occurs after the Due Date, but before the end of the Reserve Period, Buyer
shall pay a partial refund of the Reserve Amount to Seller in an amount equal to
the Reserve Amount multiplied by a fraction, the numerator of which is the
number of days from the date Payment in Full occurs to the end of the Reserve
Period and the denominator of which is the number of days in the Reserve Period.
If Payment in full occurs on or after the end of the Reserve Period, Seller
shall not be entitled to any refund of the Reserve Amount.
2.3 LATE PAYMENT SETTLEMENT. If Payment in Full does not occur on or
before the end of the Reserve Period, then, at the end of each 30 day period
after the end of the Reserve Period and before Payment in Full occurs, and in
addition to any other obligations of Seller hereunder, Seller shall pay to Buyer
an amount which is equal to (i) the product of the Discount Rate and the average
daily balance of the amounts outstanding on the Purchased Receivables during
such 30 day period MULTIPLIED BY (ii) a fraction the numerator of which is 30
days and the denominator of which is 360 days.
2.4 ADMINISTRATIVE FEE. On the Purchase Date, Seller shall pay to
Buyer the Administrative Fee. Buyer may deduct the Administrative Fee from the
Purchase Price.
3. COLLECTIONS, CHARGES AND REMITTANCES.
3.1 COLLECTION BY SELLER. In order to facilitate the collection of the
Purchased Receivables in the ordinary course of business, Seller agrees to act
as Buyer's agent for collection. Accordingly, Buyer hereby constitutes the
Seller its attorney-in-fact to ask for, demand, take, collect, xxx for and
receive all payments made in respect of the Purchased Receivables and to enforce
all rights and remedies thereunder and designates Seller as Buyer's assignee for
collection; PROVIDED that such appointment of Seller as such attorney-in-fact or
assignee for collection may be revoked by Buyer at any time. Seller, as such
attorney-in-fact, shall use due diligence and reasonable lawful means to collect
all amounts owed by the Account Debtors on each Purchased Receivable when the
same become due. In the enforcement or the collection of Purchased Receivables,
Seller shall commence any legal proceedings only in its own name as an assignee
for collection or enforcement of Buyer or, with Buyer's prior written consent,
in Buyer's name. In no event shall Seller take any action which would make Buyer
a party to any litigation or arbitration proceeding without Buyer's prior
written consent. Seller shall (i) hold in trust for Buyer in a segregated
account and turn over to Buyer forthwith upon receipt all payments made to the
Seller by Account Debtors with respect to Purchased Receivables and not
previously paid to Buyer, and (ii) turn over to Buyer forthwith on receipt all
instruments, chattel paper and other proceeds of the Purchased Receivables.
3.2 COLLECTION BY BUYER. Upon the purchase of the Purchased
Receivables, Buyer shall have full power and authority to ask for, demand, take,
collect, xxx for and receive all payments in respect of the obligations which
Seller, except for the execution hereof, could ask for, demand, take, collect,
xxx for ad receive for its own use, and to enforce all rights and remedies
thereunder which Seller could enforce if this Agreement had not been made and
Seller hereby ratifies any actions which Buyer shall lawfully take to enforce
its rights hereunder; PROVIDED that Buyer shall not exercise such power or
authority prior to the occurrence of an Event of Default, except on prior
written notice to Seller. Without limiting the foregoing, Buyer may enforce the
payment of each of the Purchased Receivables in its own name or in the name of
Seller, and may endorse the name of the Seller on all checks, drafts, money
orders and other instruments tendered to or received in payment of any such
Purchased Receivables. Seller hereby authorizes Buyer to notify any and all
Account Debtors with respect to such Purchased Receivables of the purchase and
sale contemplated hereby, and to cause all payments in respect thereof to be
made directly to Buyer. Whether or not Buyer shall have so notified any Account
Debtors, upon Buyer's request the Seller shall at its expense so notify the
Account Debtors, cause all payments in respect thereof to be made directly to
Buyer and render all reasonable assistance to Buyer in collecting such items and
in enforcing claims thereof. All sums collected or received and all property
recovered and possessed by Buyer in connection with the Purchased Receivables
shall belong to Buyer absolutely. All sums collected or received and all
property recovered or possessed by the Seller in connection with Purchased
Receivables shall be received and held by the Seller in trust for and on Buyer's
behalf; and upon receipt of any such sum or property, Seller shall forthwith
deliver the same to Buyer, or upon its order. In connection with its obligations
under this SECTION 3.2, Seller agrees to execute such instruments (including
without limitation applications to governmental authorities for the delivery of
mail through an agent) and to adopt such procedures, including the appointment
of trustees of the institution of depositary or collateral account procedures,
as Buyer may from time to time request, to provide for the direct collection by
it of amounts due under the Purchased Receivables.
3.3 NO OBLIGATION TO TAKE ACTION. Buyer shall have no obligation to
perform any of Seller's obligations under any Purchased Receivables or to take
any action or commence any proceedings to realize upon any Purchased Receivables
(including without limitation any defaulted Purchased Receivables), or to
enforce any of its rights or remedies with respect thereto.
4. NON-RECOURSE; REPURCHASE OBLIGATIONS.
4.1 NON-RECOURSE. Except as otherwise set forth in this Agreement
(including Sections 4.2, 7, and 8), Buyer's acquisition of Purchased Receivables
from Seller hereunder shall be without recourse against Seller.
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) 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 (B) 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, and together with an amount which is equal to (i) the product of the
Discount Rate and the average daily balance of the amounts outstanding on such
Purchased Receivable during the period from the Purchase Date to the date such
Repurchase Amount is paid MULTIPLIED BY (ii) a fraction the numerator of which
is the number of days from the Purchase Date to the date such Repurchase Amount
is paid and the denominator of which is 360 days (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 debiting Seller's line of credit with Buyer, or (c) by any
combination of the foregoing as Buyer may from time to time choose. To insure
that the option set forth in clause (b) of the foregoing sentence remains
available to Buyer, there shall be at all times reserved from the Seller's
borrowing availability on such line of credit an amount equal to the total
outstanding balance of the Purchased Receivables.
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 instruments, documents, financing
statements and the like to perfect Buyer's interests in the Purchased
Receivables; and (h) to do all acts and things necessary or expedient, in
furtherance of any such purposes.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 SELLER'S WARRANTIES, REPRESENTATIONS AND COVENANTS. To induce Buyer
to purchase the Purchased Receivables and to render 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 purchase the Purchased
Receivables, Seller represents, warrants, covenants and agrees, with respect to
Exhibit A (Domestic) and Exhibit B (Foreign) hereto and each of the Purchased
Receivables described therein, that:
(A) Seller is the absolute owner of each of the Purchased
Receivables set forth in Exhibit A (Domestic) and
Exhibit B (Foreign) (Domestic) and Exhibit B
(Foreign) hereto and has full legal right to sell,
transfer and assign each of the Purchased
Receivables;
(B) The correct amount of each receivable is as set forth
in Exhibit A (Domestic) and Exhibit B (Foreign)
hereto 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
Purchase Date;
(D) Each receivable set forth on Exhibit (s) A (Domestic)
and B (Foreign) hereto 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 Purchased Receivables, and no
agreement has been made under which the Account
Debtor may claim any deduction or discount with
respect thereto;
(F) Each Purchased Receivable shall be the property of
the Buyer and 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 has the right of endorsement, and also the
right to require endorsement by Seller, on all
payments received in connection with each Purchased
Receivable;
(H) Seller, and to Seller's best knowledge, each Account
Debtor set forth in Exhibit A (Domestic) and Exhibit
B (Foreign), 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 Exhibit A (Domestic) and
Exhibit B (Foreign) hereto 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 such Exhibit A (Domestic) and
Exhibit B (Foreign); and
(J) Upon Buyer's request, 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.
6.2 ADDITIONAL WARRANTIES, REPRESENTATIONS AND COVENANTS. In addition
to the foregoing warranties, representations and covenants, to induce Buyer to
purchase the Purchased Receivables and to render its services to Seller, Seller
hereby represents, warrants, covenants and agrees that:
(A) Seller will not assign, transfer, sell, or grant, or
permit any lien or security interest in any Purchased
Receivables 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 are kept is set
forth at 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 30
days prior written notice if such name, organization,
chief executive office or records concerning
Purchased Receivables is changed or added and shall
execute any documents necessary to perfect Buyer's
interest in the Purchased Receivables;
(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; and
(D) Seller has not filed a voluntary petition for relief
under the United States Bankruptcy Code or had filed
against it an involuntary petition for relief and is
not contemplating or anticipating any such filing.
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 and promptly remit the amount thereof to
Buyer. Buyer shall remain the absolute owner of any Purchased Receivable which
is subject to Adjustment, and, until the amount of such adjustment is paid by
Seller to Buyer, any rejected, returned, or recovered personal property, with
the right to take possession thereof at any time, and 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 and such goods are the property of Buyer, Seller shall segregate
said goods and xxxx them "property of Silicon Valley Bank."
8. INDEMNIFICATION.
(A) Seller hereby agrees that in the event any Account Debtor
is released from all or any part of its payment obligations with respect to any
Purchased Receivable by reason of: (1) any act or omission of Seller; or (2) the
operation of any of the provisions of the documentation pertaining to such
Purchased Receivables, which result in the termination of the Account Debtor's
obligation to pay all of any part of the Purchased Receivables, then, upon the
happening of any such event, Seller shall thereafter pay to Buyer on the date
when the Account Debtor would otherwise have paid the Purchased Receivable to
Buyer an amount equal to the amount of the Purchased Receivable not payable by
the Account Debtor as a result of such event.
(B) Seller hereby agrees to pay, and to indemnify and hold
harmless Buyer from and against, any taxes which may at any time be asserted in
respect of this transaction or the subject matter thereof (including, without
limitation, any sales, occupational, excise, gross receipts, general
corporation, personal property, privilege or license taxes, but not including
taxes imposed upon the Buyer with respect to its income arising out of this
transaction) and costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by
Seller hereunder or imposed against Buyer, Seller, the property involved or
otherwise; PROVIDED that with respect to any of the foregoing for which Seller
shall be liable, Seller shall receive reasonably prompt notice from Buyer of
this assertion of any such taxes on Buyer of which Buyer has notice.
9. ADDITIONAL RIGHTS. To secure the prompt payment and performance to Buyer of
all of the Purchased Receivables, 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 (the "Related
Property"): (A) Seller's rights to any returned or rejected goods in respect of
the Purchased Receivables, with respect to which Buyer has all the rights of any
unpaid seller, including the rights of replevin, claim and delivery,
reclamation, and stoppage
in transit; (B) All books and records pertaining to the Purchased Receivables or
the foregoing goods; and (C) 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 interest in any
Related Property without Buyer's prior written consent. 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 Purchased Receivables and the Related Property.
Seller agrees to deliver to Buyer the originals of all instruments, chattel
paper and documents evidencing or related to Purchased Receivables and Related
Property.
10. 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 Related Property;
(E) Seller shall breach any covenant, agreement,
warranty, or representation set forth herein, and the
same is not cured to Buyer's satisfaction within 10
days after Buyer has given Seller oral or written
notice thereof; provided, that if such breach is
incapable of being cured it 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; or
(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.
11. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of Default, Buyer has
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 Purchased Receivables and Related
Property, and the right to collect, dispose of, sell, lease. use. and realize
upon all Purchased Receivables and all Related Property.
12. ACCRUAL OF INTEREST. If any amount owed by Seller hereunder is not paid when
due shall bear interest from such date until paid at a per annum rate equal to
the Prime Rate plus 5%. The Prime Rate shall mean the per annum rate of interest
from time to time announced and made effective by Buyer as its Prime Rate (which
rate may or may not be the lowest rate available from Buyer at any given time).
13. FEES, COSTS AND EXPENSES. The 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 Related Property, this Agreement or any other
agreement executed in connection herewith or therewith, (c) enforcing any rights
against Seller or any guarantor, (e) protecting or enforcing its title to the
Purchased Receivables or its security interest in the Related Property, (f)
collecting any amounts due from Seller or, in the event of any breach of
representation, warranty, or covenant by Seller in connection with a Purchased
Receivable, such Purchased Receivable, and (g) the representation of Buyer in
connection with any bankruptcy case or insolvency proceeding involving Seller 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.
14. 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. If Buyer waives a default it may enforce
a later 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.
15. NOTICES. All notices shall be given to Buyer and Seller at the addresses or
faxes set forth on the first page of this Agreement and shall be deemed to have
been delivered and received: (a) if mailed, three calendar days after deposited
in the United States mail, first class, postage pre-paid, (b) one calendar day
after deposit with an overnight mail or messenger service; or (c) on the same
date of confirmed transmission if sent by hand delivery, telecopy, telefax or
telex.
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. TITLES AND SECTION HEADINGS. The titles and section headings used herein are
for convenience only and shall not be used in interpreting this Agreement.
18. 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 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: ANALOGY, INC.
By /s/ Xxxxx X. Xxxxxxxx
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Title Corporate Controller
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BUYER: SILICON VALLEY BANK
By /s/ Xxxxxx X. Xxxxxxxx
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Title Vice President
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