EXHIBIT 10.6
TRADE FINANCING AGREEMENT
This AGREEMENT is made and entered into as of the first day of February, 1999 by
and between Centillium Technology Corporation, a company organized and existing
under the laws of California, having an office and place of business at 00000
Xxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "CTC")
and Mitsubishi International Corporation, a company organized and existing under
the laws of New York, U.S.A., having an office and place of business at 000
Xxxxxx Xxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"MIC").
WITNESSETH:
WHEREAS, CTC has been engaged in the business of designing and selling
semiconductors (hereafter referred to as "Products"), and
WHEREAS, MIC has for many years engaged in the business of international trading
and trade financing.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. APPOINTMENT
-----------
CTC hereby appoints MIC as its non-exclusive buying agent for purchasing of
Products from semiconductor manufacturers (hereinafter referred to as
"Foundries") and providing MIC's trade financing to CTC and MIC accepts such an
appointment.
2. SCOPE OF WORK
-------------
a. CTC shall negotiate and settle directly with Foundries regarding
prices, other payment terms and delivery schedule of Products from
Foundries to CTC.
b. Upon request of CTC, MIC shall support negotiations between Foundries
and CTC.
c. CTC shall place purchase orders with Foundries for Products and send
copies to MIC with the following provisions:
(1) CTC shall notify MIC 2 days prior to its issuance of the purchase
order.
(2) The purchase order shall instruct Foundries to ship Products to
CTC's designated location but to deliver appropriate invoices to
MIC and to accept payment from MIC.
(3) The purchase order shall instruct Foundries to acknowledge in
writing the order to both CTC and MIC.
d. MIC on behalf of CTC shall pay Foundries pursuant to payment terms of
the purchase order from CTC to Foundries.
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e. MIC shall xxxx CTC upon receipt of the invoice from Foundries but
defer the due date for payment from CTC to MIC for 90 days beyond the
due date for the payment from MIC to Foundries.
f. Upon CTC's request, MIC shall assist CTC in establishing and keeping
close communications and relations with Foundries.
3. TERMS OF PAYMENT
----------------
a. Payment to be made by CTC to MIC shall be net 120 days after the
delivery of Products from Foundries.
b. The invoice amount from MIC to CTC shall include MIC's commission and
interest.
c. In the event that MIC pays Foundries in Japanese Yen,
(1) MIC shall apply the tentative exchange rate in computing CTC's
liability to MIC prior to the payment date from MIC to Foundries.
The exchange rate used by MIC will be stated on the face of the
invoice.
(2) The US$/Japanese Yen exchange rate for the date when MIC pays
Foundries shall be applied to the invoice from MIC to CTC. A
revised invoice will be issued to CTC with the new exchange rate
used by MIC stated on the face of the revised invoice.
(3) CTC shall have the option to pay MIC in either US Dollars or in
Japanese Yen. In the event that CTC shall pay MIC in Japanese Yen
for MIC's invoice to CTC, CTC shall give a written notice at
least five (5) business days prior to MIC's payment of required
Japanese Yen amount to Foundries.
d. In the event that CTC requires MIC to execute a forward foreign
exchange contract in order to fix the US$/Japanese Yen exchange rate
for a specified future period,
(1) CTC shall give MIC a written request at least one (1) business
day before the day when MIC shall execute the forward foreign
exchange contract.
(2) CTC shall give MIC the written request no later than five (5)
business days prior to MIC's payment of required Japanese Yen
amount to Foundries.
(3) The written request from CTC to MIC shall state the following
details:
i) Date of Request
ii) Calendar month in which Japanese Yen amount is required
iii) Required amount of Japanese Xxx
xx) Schedule of shipment to which the forward foreign exchange
contract shall be applied
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(4) MIC shall inform CTC of the contracted forward foreign exchange
rate and the corresponding US$ amount to purchase the Japanese
Yen amount within two (2) business days of CTC's written request.
(5) Any reasonable charges caused by the cancellation and/or
extension of the forward foreign exchange contract shall be the
paid by CTC.
(6) In the event that MIC's payment amount to Foundries does not
reach the forward foreign exchange contract amount for a
particular calendar month, CTC shall have the option to purchase
the Japanese Yen by using the remaining balance of the forward
foreign exchange contract.
CTC shall give MIC a written request at least 10 business days
prior to the end of the month. MIC shall make a T.T. Remittance
of the purchased Japanese Yen amount to CTC's bank account after
MIC confirms receipt of CTC's payment of the US$ amount
equivalent to the remaining Japanese Yen balance amount to MIC's
bank account.
4. COMMISSION
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a. As full compensation for the services rendered by MIC to CTC
hereunder, CTC agrees to a commission at the rate set forth in
Subsection 4.b on the price of each sale of Products from MIC to CTC
b. The commission for each month shall be determined on the first day of
each month as follows:
(1) In the event that the total sales amount from MIC to CTC in the
previous month shall be equal to or less than $1,000,000, the
commission rate for the calendar month shall be 2% of the
purchase price of Products from Foundries to MIC.
(2) In the event that the total sales amount from MIC to CTC in the
previous month shall be more than $1,000,000, the commission rate
for the calendar month shall be 1.50% of the purchase price of
the Products from Foundries to MIC.
(3) If there is a need to change the commission rate, the rate shall
be reviewed and determined by written mutual agreement between
CTC and MIC from time to time at the request of either party.
5. INTEREST
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a. The trade financing made hereunder shall bear interest (computed on
the basis of the 365-day year) at the rate of MIC's internal interest
rate on each order from CTC to MIC.
b. MIC's internal interest rate to CTC shall be adjusted subject to the
USA financial market situation, but at least 1.0% below the prime rate
of interest as published in the Wall Street Journal on the date of the
invoice.
c. MIC shall confirm to CTC MIC's internal interest rate upon receipt of
each order from CTC.
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6. CREDIT LINE
-----------
a. The credit line and the period of the credit line from MIC to CTC
shall be set forth in Exhibit A attached hereto.
b. The subsequent credit line and the period of the subsequent credit
line shall be determined by the end of the period of the credit line
set forth in Exhibit A by mutual agreement.
7. EVENT OF DEFAULT
----------------
a. Each of the following events and occurrences shall constitute an event
of default ("Event of Default") under this Agreement:
(1) CTC fails to pay when due any amount (including interest) payable
under this Agreement and such failure is not cured within 5
business days thereafter;
(2) CTC fails to comply with any other terms or conditions contained
herein and such failure is not remedied within thirty (30) days
thereafter;
(3) CTC is in default of the terms of any indebtedness of CTC to any
other lender or financier and such indebtedness is accelerated
and becomes payable by reason of such default;
(4) the commencement of proceedings in bankruptcy, or for
reorganization of CTC under the Federal Bankruptcy Code, as
amended, or any other laws, whether state or federal, for the
benefit of the debtor, which are not revoked within sixty (60)
days of their commencement;
(5) the appointment of a receiver, trustee or custodian for CTC or
for the substantial part of the assets of CTC, or the institution
of proceedings for dissolution or the full or partial liquidation
of CTC, and such receiver, trustee or custodian shall not be
discharged within sixty (60) days of their appointment;
(6) the discontinuance of the business of CTC; or
(7) the dissolution of CTC.
b. If an Event of Default shall occur and be continuing, MIC may, by
written notice to CTC, (1) declare all outstanding amounts, together
with accrued interest and any other sums payable hereunder, to be
immediately due and payable, and the same shall thereupon become due
and payable without presentment, demand, protest or notice of any
kind, and CTC shall pay to MIC the entire amount then outstanding and
interest accrued thereon, and (2) declare the credit line granted by
MIC hereunder canceled, such cancellation becoming effective upon the
giving of such notice.
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8. SECURITY AGREEMENT AND GUARANTY
-------------------------------
MIC's obligations under this Agreement, shall not become effective unless
and until CTC shall enter into and deliver a General Security Agreement
with MIC in the form of Exhibit B attached hereto by which CTC agrees to
grant a security interest in the collateral identified in the General
Security Agreement as a security for the payments to be made by CTC
hereunder.
9. TERMS AND TERMINATION
---------------------
This Agreement shall be in effect for a period of one (1) year commencing
on the date first above written and shall be extended for one (1) year and
thereafter from year to year successively unless a notice is given by one
of the parties to the other at least ninety (90) days before the end of the
then current term that it does not wish to extend this Agreement.
10. RELATIONSHIP BETWEEN THE PARTIES
--------------------------------
The relationship between CTC and MIC shall be that of an independent
contractor. Unless otherwise mutually agreed, MIC is not authorized to
make, nor shall it make any promise or commitment which binds CTC to any
third party without the prior written consent of CTC.
11. CONFIDENTIAL INFORMATION
------------------------
a. "Confidential Information" means all or any portion of information
disclosed by one party to the other during the term of this Agreement
which is: (i) written, recorded, graphical, or in other tangible form
and which is marked "Proprietary," "Confidential" or with a similar
legend denoting the proprietary interest of the disclosing party; or
(ii) oral information to the extent it is identified by the disclosing
party as "Proprietary" or "Confidential" at the time of oral
disclosure; provided, however, Confidential Information shall not
include information that: (a) is or becomes publicly known through no
fault of the receiving party; or (b) is in the possession of the
receiving party prior to its disclosure by the disclosing party and
not subject to other restriction on disclosure.
b. Each party hereby agrees not to use, utilize, disclose or reveal
Confidential Information to any person, company or other entities
without obtaining written consent by the disclosing party.
12. ASSIGNMENT
----------
It is agreed that this Agreement and the rights and obligations of the
parties hereunder shall not be assigned to any third party without the
prior written consent of the other party.
13. INDEMNIFICATION
---------------
CTC hereby agrees to indemnify, defend and hold MIC harmless from and
against any and all losses, costs, liabilities, claims and expenses
including attorney fees (Indemnifiable Expenses) arising out of, relating
to or in connection with Products or their infringement of any patent,
copyright or mask work right of any third party,
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or the design, manufacture, condition or use of Products other than
Indemnifiable Expenses which arise solely due to an omission to act by MIC.
14. NOTICE
------
Notices and other communications made by one of the parties to this
Agreement shall be deemed given and effective upon receipt when posted by
registered mail, postage prepaid, sent by overnight courier or transmitted
by facsimile addressed to the other party as follows:
To CTC:
Centillium Technology Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
To MIC:
Mitsubishi International Corporation
000 Xxxxxx Xxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
15. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in all respects in
accordance with the laws of California, U.S.A.
16. ENTIRE AGREEMENT
----------------
This Agreement represents the entire agreement between the parties hereto
with respect to the subject matter hereof and shall supersede all previous
communications, representations or agreements, either oral or written,
between the parties hereto with respect to the subject matter hereof, and
no agreement or understanding varying or extending the same will be binding
upon either party hereto unless in writing, signed by a duly authorized
officer or representative thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in duplicate, each duplicate to serve as an original as of the day and
year first above written.
Centillium Technology Corporation Mitsubishi International Corporation
/s/ A. Xxxxxx Xxxxx /s/ Xxxxxxxxx Xxxxxx
------------------- --------------------
Xxxxxx Xxxxx Xxxxxxxxx Xxxxxx
President & General Manager
Chief Executive Officer Palo Alto Office
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Exhibit A
CREDIT LINE
-----------
CTC and MIC agree with the credit line and credit line period from MIC to CTC as
follows:
CREDIT LINE: US$ 1,000,000
CREDIT LINE PERIOD: From February 1, 1999 to January 31, 2000
The credit line after 2000 shall be determined by the end of January, 2000 by
mutual agreement between CTC and MIC.
Mitsubishi International Corporation Centillium Technology Corporation
/s/ Xxxxxxxxx Xxxxxx /s/ Xxxxxx Xxxxx
-------------------------- ----------------------
By: Xxxxxxxxx Xxxxxx By: Xxxxxx Xxxxx
Title: General Manager Title: President & CEO
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Exhibit B
GENERAL SECURITY AGREEMENT
--------------------------
This General Security Agreement (the "Agreement") made this first day of
February 1999, between Mitsubishi International Corporation, a company organized
and existing under the laws of New York (herein called "Secured Party") and
Centillium Technology Corporation, a company organized and existing under the
laws of California (herein called "Debtor").
A. Debtor and Secured Party have entered into that certain Trade
Financing Agreement of even date herewith, wherein Secured Party shall provide
trade financing to Debtor (the "Trade Financing Agreement");
B. It is a condition precedent to Secured Party's obligations under the
Trade Financing Agreement, that Debtor shall grant security interests to Secured
Party pursuant to the terms and conditions set forth herein.
1. DEFINITIONS OF TERMS USED HEREIN
--------------------------------
(a) "Insolvency" for purposes of this Agreement shall include, but is not
limited to,
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(1) the insolvency, suspension of usual business, general assignment
or failure of the Debtor, or of any endorser, guarantor, surety or other person
liable upon or for any of the liabilities of the Debtor hereunder (hereafter
sometimes referred to as "accommodation party"), or
(2) the appointment of a receiver, conservator, rehabilitator or
similar officer for the Debtor or accommodation party or for any of the property
of any hereof and such receiver, conservator, rehabilitator or similar officer
is not discharged within 45 days, or
(3) the issuance of any warrant of attachment against any property of
the Debtor or any accommodation party, that remains unbonded for a period of 45
days, or the taking of possession of, or assumption of control over, all or any
substantial party of the property of the Debtor or any accommodation party by
the United States government, foreign governments (de facto or de jure) or any
agency of any thereof, or
(4) the filing of a petition in bankruptcy by Debtor or against the
Debtor or accommodation party which is not discharged within 45 days, or
(5) the commencement of any proceeding by Debtor or against the
Debtor or any accommodation party under any bankruptcy or debtor's law (or
similar law analogous in purpose or effect) for the relief or reorganization,
extension, arrangement or readjustment of any of the obligations of any thereof,
and which proceeding is not dismissed within 45 days, or
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(6) the commencement of any proceedings supplementary to any
execution relating to any judgment against the Debtor or any accommodation
party.
(b) "Collateral" means, whether now owned or hereafter acquired:
(1) all inventory in all of its forms, wherever located, now or
hereafter existing (including, without limitation, (i) all integrated circuits
and semiconductor products, and all raw materials and work-in-process therefor,
finished goods thereof and materials used or consumed in the manufacture or
production thereof, (ii) all goods in which the Debtor has an interest in mass
or a joint or other interest or right of any kind (including, without
limitation, goods in which the Debtor has an interest or right as consignee) and
(iii) all goods that are returned to or repossessed by the Debtor), and all
accessions to any of the foregoing, products of any of the foregoing and
documents for any of the foregoing (any and all such inventory, accessions,
products and documents herein called the "Inventory");
(2) all accounts, contract rights, chattel paper, instruments,
general intangibles and other obligations of any kind (including, without
limitation, all rights to purchase and receive integrated circuits or
semiconductor products, to receive payments of money or to receive other value
pursuant to contracts, agreements or other arrangements with third parties for
the purchasing, trading, lending, borrowing or exchanging of integrated circuits
or semiconductor products), now or hereafter existing, whether or not arising
out of or in connection with the sale or lease of goods or the rendering of
services, and all rights now or hereafter existing in and to all security
agreements, leases and other contracts securing or otherwise relating to any
such accounts, contract rights, chattel paper, instruments, general intangibles
or obligations (any and all such accounts, contract rights, chattel paper,
instruments, general intangibles, obligations and rights, to the extent not
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described in Section 1(b)(3) below, herein called the "Receivables," and any and
all such leases, security agreements and other contracts herein called the
"Related Contracts");
(3) all of the following (the "Deposit Account Collateral"):
a. any and all cash or deposit accounts of Debtor, including,
without limitation, but not limited to, the accounts set forth on Schedule 1
attached hereto (the "Deposit Accounts"), all funds held therein and all
certificates and instruments, if any, from time to time representing or
evidencing the Deposit Accounts;
b. all investment property held in or through, or represented by,
the Deposit Accounts from time to time, including, without limitation, all
securities, security entitlements as securities accounts, so held or represented
and all certificates and instrument, if any, from time to time representing or
evidencing the same;
c. all notes, certificates of deposit, deposit accounts, checks and
other instruments from time to time delivered to or otherwise possessed by the
Secured Party for or on behalf of the Debtor in substitution for or in addition
to any or all of the then existing Deposit Account Collateral; and
d. all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Deposit Account Collateral; and
(4) all proceeds of any and all of the foregoing Collateral
(including, without limitation, proceeds that constitute property of any type
described in Section l(b)(1), (2) or (3)) and, to the extent not otherwise
included, all (i) books and records, of
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whatever nature and in whatever form, relating to the foregoing, (ii) payments
under insurance (whether or not the Secured Party is the loss payee thereof), or
under any indemnity, warranty or guaranty, payable by reason of loss or damage
to or otherwise with respect to any of the foregoing Collateral and (iii) cash.
2. SECURITY INTEREST
-----------------
The Debtor hereby pledges and assigns to the Secured Party and hereby
grants to the Secured Party a security interest in all of Debtor's right, title
and interest in and to the Collateral in order to secure payment and performance
of all liabilities and obligations of Debtor to the Secured Party arising from
the payment and performance of all of Debtor's liabilities, duties, and
obligations now or hereafter existing under or in connection with the Trade
Financing Agreement whether for principal, interest, fees, expenses,
indemnification or otherwise, and all obligations of the Debtor under this
Agreement (all being hereafter called the "Obligations").
3. SALE OF MATERIALS
-----------------
Subject to the terms and provisions of this Agreement and in consideration
of the security interests herein granted, the Secured Party will, from time to
time, but on such terms and conditions as Secured Party may specify and subject
to its absolute right to refuse so to do, sell or cause any of its
correspondents to sell to Debtor materials or goods produced by or services
performed by Foundries, at the request of or for the account of the Debtor.
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4. MUTUAL AGREEMENT
----------------
(a) Without limiting the foregoing in any way whatsoever, the security
interest created herein shall extend, apply and continue to any and all future
sales of materials or goods or services by the Secured Party or its
representatives or agents to Debtor, and
(b) Secured Party and Debtor as used in this Agreement include the
successor and assigns of those parties, and
(c) The law governing the interpretation of this Agreement, the security
interests created by this Agreement and the perfection of such security
interests shall be that of the State of California, and
(d) This Agreement shall be given its plain and simple meaning consistent
with performance thereof by the parties and the California Commercial Code. The
titles of the several articles shall not be considered a part of this Agreement
so as to otherwise alter such meaning, and
(e) Neither party hereto shall be deemed to have waived any of its rights
hereunder unless such waiver be in writing and signed by the party making such
waiver, and
(f) Whenever in this Agreement the context so requires, the singular shall
include the plural, and
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(g) This Agreement shall terminate after written notice from either party
to the other, that no further sales of semiconductor products from Foundries to
Debtor are to be made, is received and Debtor pays in full all obligations and
all indebtedness of Debtor to the Secured Party, and
(h) This Agreement shall take effect immediately upon execution by the
Debtor, and the execution hereof by the Secured Party shall not be required as a
condition to the effectiveness of this Agreement. The provision for execution of
this Agreement by the Secured Party is only for the purpose of filing this
Agreement as a security agreement under the Uniform Commercial Code, if
execution hereof by the Secured Party is required for purpose of such filing.
5. REPRESENTATIONS AND WARRANTIES BY DEBTOR
----------------------------------------
Debtor hereby represents and warrants the following:
(a) Debtor's mailing address is:
Centillium Technology Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
The address of Debtor's chief executive office is:
Centillium Technology Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
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The address at which Debtor keeps all of its records which are
controlling for the general accounting purposes of Debtor is:
Centillium Technology Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
All Inventory presently held by Debtor is kept at the following
locations:
Centillium Technology Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
(b) Debtor is a company duly organized, existing and in good standing
under the laws of California and is duly qualified to transact intrastate
business and is in good standing in the State of California and in each other
state in which it owns or leases any material property and conducts any material
business, and Debtor is empowered to enter into this Agreement.
(c) All information supplied and statements made by Debtor in any
financial, credit or accounting statement presented to the Secured Party, if
any, prior to or pursuant to this Agreement are or will be true and correct.
Quarterly financial statements are subject to normal year-end adjustment.
(d) The Debtor is the legal and beneficial owner of the Collateral, free
and clear of any lien other than the security interest created by this
Agreement. No effective financing
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statement or other instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have been
filed in favor of the Secured Party relating to this Agreement.
(e) The Debtor does not maintain any cash or other deposit accounts other
than the deposit accounts listed on Schedule 1.
(f) None of the Receivables is evidenced by a promissory note or other
instrument or by chattel paper.
(g) The Debtor has exclusive possession and control of the Inventory.
6. DUTIES AND OBLIGATIONS OF DEBTOR
--------------------------------
(a) Without the prior written consent of the Secured Party, the Debtor
will not file or authorize or permit to be filed in any jurisdiction any
financing or like statement with respect to the Collateral in which the Secured
Party is not named as the sole secured party.
(b) Debtor will have and maintain insurance at all times with respect to
all inventory and goods, including, without limitation, goods in transit, at
their full insurable value against risk of fire (including, without limitation,
so-called extended coverage), theft, and all other usual risks and such special
risks as the Secured Party may reasonably designate, in such form, for such
periods and written by such companies as may be satisfactory to Secured Party,
such insurance to be payable to the Secured Party and Debtor as their interests
may appear, that all policies of insurance shall provide for ten (10) days,
written minimum cancellation notice to the Secured Party and at the request of
the Secured Party shall be delivered to and held by it. In the event of failure
by Debtor to provide
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insurance as herein provided, Secured Party may, at Secured Party's option,
provide such insurance and Debtor shall pay to Secured Party the costs of such
insurance and Secured Party may, at Secured Party's option, declare Debtor in
default and proceed with its remedies granted herein.
(c) Debtor shall defend at its cost any claim that (i) it does not have
good and valid title to the Collateral, or that (ii) this Agreement does not
constitute a valid first priority lien and charge upon the Collateral. The
assertion by anyone of any claim shall not constitute a default hereunder if
such claim is diligently, adequately and successfully contested by Debtor or is
settled or discharged by Debtor with reasonable diligence. In the event of
failure by the Debtor to diligently defend or contest any such claim, Secured
Party may, at Secured Party's option, contest, settle or discharge any such
claim, and Debtor shall pay to Secured Party, on demand, the reasonable cost and
expense, including, without limitation, attorney's fees, thereof.
(d) As to Deposit Accounts.
(1) All certificates and instruments, if any, representing or
evidencing the Deposit Account Collateral shall be delivered to and held by or
on behalf of the Secured Party pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to the
Secured Party. The Secured Party shall have the right, at any time in its
discretion and without notice to the Debtor, to transfer to or register in the
name of the Secured Party or any of its nominees any or all of the Deposit
Account Collateral. In addition, the Secured Party shall have the right at any
time to exchange any certificates or instruments representing or evidencing any
Deposit Account Collateral for certificates or instruments of smaller or larger
denominations.
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(2) So long as any of the Obligations remains unpaid, the Borrower
will observe the agreements set forth below.
a. The Debtor will maintain the deposit accounts set forth on
Schedule 1 with the Silicon Valley Bank and Xxxxxx Xxxxxxx & Co., Inc.
respectively. The Debtor will not maintain any cash or other deposit accounts
with any financial or other institutions other than the deposit accounts set
forth on Schedule 1 without the prior written consent of the Secured Party.
b. It shall be a term and condition of the Deposit Accounts,
notwithstanding any term or condition to the contrary in any other agreement
relating to the Deposit Accounts, that (i) so long as no Default or Event of
Default has occurred and is continuing, amounts held in the Deposit Accounts may
be withdrawn to or for the account of the Borrower at any time; and (ii) if a
Default or an Event of Default occurs and is continuing, no amount (including
interest on and other proceeds of the cash and other property held in the
Deposit Accounts) shall be paid or released to or for the account of, or
withdrawn by or for the account of, the Debtor from any of the Deposit Accounts,
except in accordance with the terms of Section 14.
(e) As to Inventory.
(1) The Debtor will keep the Inventory (other than Inventory sold in
the ordinary course of business) at the places therefor specified in Section
5(a) or, upon 30 days' prior written notice to the Secured Party, at other
places in jurisdictions where all action required by Section 12(b)(2) has been
taken with respect to the Inventory; provided,
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however, that in no event shall any Inventory be located outside the United
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States of America; and
(2) The Debtor will pay promptly when due all property and other
taxes, assessments and governmental charges or levies imposed upon, and all
claims (including, without limitation, claims for labor, materials and supplies)
against, the Inventory, except to the extent that the validity thereof is being
contested in good faith and by proper proceedings and that appropriate reserves
are being maintained therefor.
(f) As to Receivables.
(1) The Debtor will keep its place of business or, if it has more
than one place of business, its chief executive officer and the office where it
keeps its records concerning the Receivables at the location therefor specified
in Section 5(a) or, upon 30 days' prior written notice to the Secured Party, at
other locations in jurisdictions where all actions required by Section 12(b)(2)
have been taken with respect to Receivables; provided, however, that in no event
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shall any of the Debtor's records concerning Receivables be located outside the
United States of America. The Debtor will hold and preserve such records and
will permit representatives of the Secured Party at any time during normal
business hours to inspect and make abstracts from such records.
7. DEBTOR REMAINS LIABLE. Anything herein to the contrary
---------------------
notwithstanding, (a) the Debtor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed, (b) the exercise by the Secured Party of any of
its rights hereunder shall not release the Debtor from any of its duties or
obligations under the contracts and agreements included in the
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Collateral, and (c) the Secured Party shall not have any obligation or liability
under the contracts and agreements included in the Collateral by reason of this
Agreement and shall not be obligated to perform any of the obligations or duties
of the Debtor thereunder or to take any action to collect or enforce any claim
for payment assigned hereunder.
8. TRANSFERS AND OTHER LIENS. The Debtor agrees that it will not (a)
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sell, assign (by operation of law or otherwise) or otherwise dispose of, or
grant any option with respect to, any of the Collateral, except for sales of
Inventory in the ordinary course of business, or (b) create or permit to exist
any lien upon or with respect to any of the Collateral, except for the security
interest created by this Agreement.
9. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. The Debtor hereby
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irrevocably appoints the Secured Party the Debtor's attorney-in-fact, with full
authority in the place and stead of the Debtor and in the name of the Debtor or
otherwise, from time to time in the Secured Party's discretion to take any
action and to execute any instrument that the Secured Party may deem necessary
or advisable to accomplish the purposes of this Agreement, including, without
limitation, the following:
(a) to obtain and adjust insurance required to be paid to the Secured
Party pursuant to Section 6(b);
(b) To ask for, demand, collect, xxx for, recover, compromise,
receive, and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral;
(c) to receive, endorse and collect (i) any drafts or other
instruments, documents and chattel paper in connection with Section 9(a) or (b)
and (ii) all instruments
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made payable to the Debtor representing any interest payment, dividend, return
of principal or other distribution in respect of the Deposit Account Collateral
or any part thereof, and to give full discharge for the same; and
(d) to file any claims, take any action or institute any proceedings
that the Secured Party may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Secured Party with
respect to any of the Collateral.
10. SECURED PARTY MAY PERFORM. If the Debtor failures to perform any
-------------------------
agreement contained herein, the Secured Party may itself perform, or cause
performances of, such agreement, and the expenses of the Secured Party incurred
in connection therewith shall be payable by the Debtor.
11. SECURED PARTY'S DUTIES. The powers conferred on the Secured Party
----------------------
under this Agreement are solely to protect its interest in the Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Secured Party shall not have any duty as
to any Collateral, as to ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Deposit Account Collateral, whether or not the Secured Party has or is deemed to
have knowledge of such matters, or as to the taking of any necessary steps to
preserve rights against other parties or any other rights pertaining to any
Collateral. The Secured Party shall be deemed to have exercised reasonable care
in the custody and preservation of any Collateral in its possession if such
Collateral is accorded treatment substantially equal to the treatment that the
Secured Party accords its own property.
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12. RIGHTS OF THE SECURED PARTY PRIOR TO DEFAULT
--------------------------------------------
(a) Notwithstanding any other part of this Agreement, the Secured
Party may enter upon Debtor's premises at any reasonable time and upon
reasonable prior notice and with minimum interference with Debtor's business
operations to inspect Debtor's books and records pertaining to the Collateral or
its proceeds and Debtor shall assist the Secured Party in whatever way
reasonably necessary to make any inspection.
(b) The Debtor hereby agrees that upon five (5) business days
written notice from the Secured Party it will do any or all of the following:
(1) deliver to the Secured Party lists or copies of all
accounts which are proceeds of Debtor's inventory promptly after they arise;
(2) join with the Secured Party at its request in executing
financing statements and pay the cost of filing the same wherever the Secured
Party deems appropriate and will do, make, execute and deliver all such
reasonably additional and further acts, things, deeds, assurance and instruments
as the Secured Party may reasonably require to completely vest in it and assure
to it its rights hereunder in and to the Collateral and will pay all reasonable
out-of-pocket expenses, including, without limitation, the enforcement of any of
the Obligations or the administration, preservation, or protection of or
realization upon the Collateral or any part thereof.
13. EVENTS OF DEFAULT
-----------------
Each of the following shall be an event of default.
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(a) An Event of Default as defined in the Trade Financing Agreement shall
have occurred and be continuing.
(b) Debtor defaults in the due performance or observance of any
obligation of Debtor under this Agreement and fails to cure such default within
30 days after receipt of written notice from Secured Party.
(c) Any representation or warranty or guarantee made by Debtor herein or
in any other statement heretofore or hereafter furnished by Debtor to the
Secured Party proves to be false or misleading in any material respect.
(d) Debtor becomes insolvent as defined in Section 1(a) above.
(e) This Agreement, for any reason except as may be permitted by the
terms hereof, ceases to create a valid and perfected first-priority security
interest in any of the Collateral.
14. ADDITIONAL RIGHTS OF SECURED PARTY AFTER DEFAULT
------------------------------------------------
(a) When Debtor is in default hereunder, all obligations secured hereby
shall become immediately due and payable at Secured Party's option without
notice to Debtor, and Secured Party may in its sole discretion proceed to
enforce payment of the same and exercise any or all of the rights and remedies
afforded to Secured Party by the Uniform Commercial Code or otherwise possessed
by Secured Party.
(b) In addition thereto, the Debtor further agrees as follows:
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(1) In the event that notice is necessary under applicable law,
written notice mailed to the Debtor or any accommodation party given seven (7)
business days prior to the date of public sale of any of the Collateral subject
to the security interest created herein or prior to the date after which private
sale or any other disposition of said Collateral will be made shall constitute
reasonable notice, but notice given in any other reasonable manner or at any
other time shall be sufficient.
(2) Without precluding any other methods of sale, the sale of
Collateral shall have been made in commercially reasonable manner if conducted
in conformity with reasonable practices for disposing of similar property.
(3) The Collateral need not be present at any public or private sale
or in view of the purchaser or purchasers and title shall pass upon such sale
wherever the property or any part thereof is located with like effects as though
all the property were present and in possession of the person conducting the
sale and were physically delivered to the purchaser or purchasers; the Secured
Party may bid for and purchase at any public or private sale the Collateral
offered for sale or any part thereof and by such Secured Party shall become the
owner thereof.
(4) The Secured Party may require the Debtor to assemble the
Collateral, taking all necessary or appropriate action to preserve and keep it
in good condition and make such available to the Secured Party at a place and
time convenient to both parties, all at the expense of the Debtor. Furthermore,
in any such event, to the extent permitted under applicable law, full power and
authority are hereby given to the Secured Party to sell, assign and deliver the
whole of the Collateral or any part thereof, at any time at any broker's board,
or at public or private sale, at the option of the Secured Party and no delay on
the Secured Party's part in exercising any power of sale or any other rights or
-17-
options hereunder, and no notice or demand, which may be given to or made upon
the Debtor by the Secured Party with to or made upon the Debtor by the Secured
Party with respect to any power of sales or other right or option hereunder,
shall constitute a waiver thereof, or limit or impair the Secured Party's right
to take any action or to exercise any power of sale or any other rights
hereunder, without notice or demand, or prejudice the rights of the Secured
Party as against the Debtor in any respect.
(c) Without limiting any of foregoing, the Secured Party upon default of
the Debtor, may take possession of the Collateral. In taking possession, the
Secured Party may proceed without judicial process or may proceed by action. The
Debtor, upon two (2) business days written notice from the Secured Party, must
assemble all of the Collateral and make it available to the Secured Party at a
place designated by the Secured Party which is reasonably convenient to the
Secured Party and the Debtor. At the Secured Party's option, the Secured Party
may, without removal from the Debtor's premises determine that any or all of the
Collateral is unusable, and may dispose of the unusable Collateral on the
premises of the Debtor.
(d) Debtor will deliver to the Secured Party promptly upon receipt all
proceeds of the Inventory received by the Debtor including, without limitation,
proceeds of accounts referred to above, in the exact form in which they are
received.
(e) To evidence the Secured Party's rights hereunder, Debtor will assign
or endorse proceeds of Collateral to the Secured Party.
(f) Debtor will notify its account debtors that their accounts have been
assigned to the Secured Party and shall be paid to the Secured Party and
indicate on all invoices to such account debtors that the accounts are payable
to the Secured Party. The Secured Party
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shall have full power to so notify account debtors, to collect, compromise,
endorse, sell, or otherwise deal with accounts and proceeds thereof in its own
name or that of Debtor at any time. The Secured Party in its sole discretion may
apply cash proceeds to the payment of any liabilities or may release such cash
proceeds to Debtor for use in the operation of Debtor's business.
15. DISPOSITION OF PROCEEDS FROM SALE OF DEBTOR'S COLLATERAL AFTER
--------------------------------------------------------------
DEFAULT BY DEBTOR.
------------------
(a) After default, the Secured Party may sell, lease or otherwise dispose
of any or all of the Collateral in its then condition or after preparation or
processing. The proceeds of disposition shall be applied first to the reasonable
expenses of retaking, holding, preparation for sale, selling and the like and
the reasonable attorney's fees and legal expenses incurred by the Secured Party
and second to the satisfaction of all of the indebtedness owed by the Debtor to
the Secured Party and any amount remaining shall be returned to the Debtor.
(b) If the proceeds from the sale of the Collateral are not sufficient to
satisfy the indebtedness of the Debtor to the Secured Party, the Secured Party
may proceed against the Debtor for any deficiency.
16. RIGHTS OF DEBTOR.
-----------------
Until default, Debtor may use its inventory and goods in any lawful manner
not inconsistent with this Agreement and with the terms of insurance thereon;
may sell its inventory and goods in the ordinary course of business; and may use
and consume any raw
-19-
materials or supplies, the use and consumption of which is necessary in order to
carry on Debtor's business.
17. AMENDMENT OF AGREEMENT, WAIVERS, ETC.
-------------------------------------
(a) Debtor reserves the right to request the amendment of this
Agreement to accommodate accounts receivable financing at some time in the
future. Debtor will negotiate new terms with the Secured Party at that time. No
amendment or waiver of any provision of this Agreement or consent to any
departure by the Debtor therefrom shall in any event be effective unless the
same is in writing and signed by the Secured Party, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(b) The waiver (whether express or implied) by the Secured Party of
any breach of any term or condition of this Agreement shall not prejudice any
remedy of the Secured Party in respect of any continuing or other breach of the
terms and conditions hereof and shall not be construed as a bar to any right or
remedy that the Secured Party would otherwise have on any future occasion under
this Agreement.
(c) No failure to exercise or delay in exercising, on the part of
the Secured Party, any right, power or privilege under this Agreement shall
operate as a waiver thereof or the exercise of any other right, power or
privilege.
18. Addresses for Notices. All notices and other communications provided
---------------------
for hereunder shall be in writing (including, without limitation, communication
by telecopier) and shall be mailed, telecopied, or delivered to the Debtor or
the Secured Party, as the case may be, at the address therefor set forth in the
Trade Financing Agreement or at
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such other address as may be designated by such party in a written notice to the
other party complying with the terms of this section. All such notices and other
communications shall be effective as provided in the Trade Financing Agreement.
IN WITNESS HEREOF, the parties hereto have executed this Agreement as of
the date first above written.
DEBTOR: Centillium Technology Corporation
BY: /s/ A. Xxxxxx Xxxxx
TITLE: President and Chief Executive Officer
ADDRESS: 00000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
SECURED PARTY: Mitsubishi International Corporation
By: /s/ Xxxxxxxxx Xxxxxx
TITLE: General Manager of Palo Alto Office
ADDRESS: 000 Xxxxxx Xxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
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Schedule 1
Deposit Accounts
---------------------------------------------------------------------------
Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxx Xxxx XX00
Xxxxx Xxxxx, XX 00000
Checking Account No. ___________________
Payroll Account No. ___________________
Money Market Account No. ___________________
Xxxxxx Xxxxxxx & Co., Inc.
[Address]
Checking Account No. ___________________
Payroll Account No. ___________________
Money Market Account No. ___________________
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