[SILICON VALLEY LOGO]
QUICKSTART LOAN AND SECURITY AGREEMENT
Borrower: ImageX, Inc. Address: 00000 X.X. 0xx Xxxxxx
Xxxxx 000
Date: February 26, 1997 Xxxxxxxx, XX 00000
THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
SILICON VALLEY BANK ("Silicon"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located at 000 000xx
Xxxxxx X.X., Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000 and the borrower named above
(jointly and severally, the "Borrower"), whose chief executive office is located
at the above address ("Borrower's Address").
1. Loans
Silicon will make loans to Borrower (the "Loans") in amounts determined by
Silicon in its reasonable business judgment up to the amount (the "Credit
Limit") shown on the Schedule to this Agreement (the "Schedule"), provided no
Event of Default and no event which, with notice or passage of time or both,
would constitute an Event of Default has occurred. All Loans and other monetary
Obligations will bear interest at the rate shown on the Schedule. Interest will
be payable monthly, on the date shown on the monthly billing from Silicon.
Silicon may, in its discretion, charge interest to Borrower's deposit accounts
maintained with Silicon.
2. Security Interest
As security for all present and future indebtedness, guarantees,
liabilities, and other obligations, of Borrower to Silicon (collectively, the
"Obligations"), Borrower hereby grants Silicon a continuing security interest in
all of Borrower's interest in the following types of property, whether now owned
or hereafter acquired, and wherever located (collectively, the "Collateral"):
All "accounts," "general intangibles," general intangibles specifically exclude
patents, copyrights, trademarks and other intellectual property, "chattel
paper," "documents," "letters of credit," "instruments," "deposit accounts,"
"inventory," "farm products," "fixtures" and "equipment," as such terms are
defined in Division 9 of the Washington Uniform Commercial Code in effect on the
date hereof, and all products, proceeds and insurance proceeds of the foregoing.
3. Representation and Agreements of Borrower
Borrower represents to Silicon as follows, and Borrower agrees that the
following representations will continue to be true, and that Borrower will
comply with all of the following agreements throughout the term of this
Agreement.
3.1 Corporate Existence and Authority
Borrower, if a corporation, is and will continue to be, duly authorized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation. The execution, delivery and performance by Borrower of this
Agreement, and all other documents contemplated hereby have been duly and
validly authorized, and do not violate any law or any provision of, and are not
grounds for acceleration under, any agreement or instrument which is binding
upon Borrower.
3.2 Name; Places of Business
The name of Borrower set forth in this Agreement is its correct name.
Borrower shall give Silicon 15 days' prior written notice before changing its
name. The address set forth in the heading to this Agreement is Borrower's chief
executive office. In addition, Borrower has places of business and Collateral is
located only at the locations set forth on the Schedule. Borrower will give
Silicon at least 15 days prior written notice before changing its chief
executive officer or locating the Collateral at any other location.
3.3 Collateral
Silicon has and will at all times continue to have a first-priority
perfected security interest in all of the Collateral other than specific
equipment. Borrower will immediately advise Silicon in writing of any material
loss or damage to the Collateral.
3.4 Financial Condition and Statements
All financial statements now or in the future delivered to Silicon have
been, and will be, prepared in conformity with generally accepted accounting
principles. Since the last date covered by any such statement, there has been no
material adverse change in the financial condition or business of Borrower.
Borrower will provide Silicon: (i) within 30 days after the end of each month, a
monthly financial statement prepared by Borrower, and such other information as
Silicon shall reasonably request; (ii) within 120 days following the end of
Borrower's fiscal year, complete annual financial statements, certified by
independent certified public accountants acceptable to Silicon and accompanied
by the unqualified report thereon by said independent
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certified public accountants; and (iii) other financial information reasonably
requested by Silicon from time to time.
3.5 Taxes; Compliance with Law
Borrower has filed, and will file, when due, all tax returns and reports
required by applicable law, and Borrower has paid, and will pay, when due, all
taxes, assessments, deposits and contributions now or in the future owed by
Borrower. Borrower has complied, and will comply, in all material respects, with
all applicable laws, rules and regulations.
3.6 Insurance
Borrower shall at all times insure all of the tangible personal property
Collateral and carry such other business insurance as is customary in Borrower's
industry.
3.7 Access to Collateral and Books and Records
At reasonable times, on one business day notice, Silicon, or its agents,
shall have the right to inspect the Collateral, and the right to audit and copy
Borrower's books and records.
3.8 Operating Accounts
Borrower shall maintain its primary operating accounts with Bank.
3.9 Additional Agreements
Borrower shall not, without Silicon's prior written consent, do any of the
following: (i) enter into any transaction outside the ordinary course of
business except for the sale of capital stock to venture investors, provided
that Borrower promptly delivers written notification to Silicon of any such
sale; (ii) sell or transfer any Collateral, except in the ordinary course of
business; (iii) pay or declare any dividends on Borrower's stock (except for
dividends payable solely in stock of Borrower); or (iv) redeem, retire, purchase
or otherwise acquire, directly or indirectly, any of Borrower's stock other than
the repurchase of up to five percent (5%) of Borrower's then issued stock in any
fiscal year from Borrower's employees or directors pursuant to written agreement
with Borrower; or (v) grant a security interest in patents, copyrights,
trademarks or other intellectual property to any third party.
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4. Term
This Agreement shall continue in effect until the maturity date set forth
on the Schedule (the "Maturity Date"). This Agreement may be terminated, without
penalty, priority to the Maturity Date as follows: (i) by Borrower, effective
three business days after written notice of termination is given to Silicon; or
(ii) by Silicon at any time after the occurrence of any Event of Default,
without notice, effective immediately. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay all Obligations in full,
whether or not such Obligations are otherwise then due and payable. No
termination shall in any way affect or impair any security interest or other
right or remedy of Silicon, nor shall any such termination relieve Borrower of
any Obligation to Silicon, until all of the Obligations have been paid and
performed in full.
5. Events of Default and Remedies
The occurrence of any of the following events shall constitute an "Event
of Default" under this Agreement: (a) Any representations, statement, report or
certificate given to Silicon by Borrower or any of its officers, employees or
agents, now or in the future, is untrue or misleading in a material respect; or
(b) Borrower fails to pay when due any Loan or any interest thereon or any other
monetary Obligation; or (c) the total Obligations outstanding at any time exceed
the Credit Limit; or (d) Borrower fails to perform any other non-monetary
Obligation, which failure is not cured within 5 business days after the date
due; or (e) Dissolution, termination of existence, insolvency or business
failure of Borrower; or appointment of a receiver, trustee or custodian, for all
or any part of the property of, assignment for the benefit of creditors by, or
the commencement of any proceeding by or against Borrower under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or in the
future in effect; or (f) a material adverse change in the business, operations,
or financial or other condition of Borrower. If an Event of Default occurs,
Silicon, shall have the right to accelerate and declare all of the Obligations
to be immediately due and payable, increase the interest rate by an additional
four percent per annum, and exercise all rights and remedies accorded it by
applicable law.
6. General
If any provision of this Agreement is held to be unenforceable, the
remainder of this Agreement shall still continue in full force and effect. This
Agreement and any other written agreements, documents and instruments executed
in connection herewith are the complete agreement between Borrower and Silicon
and supersede all prior and contemporaneous negotiations and oral
representations and agreements, all of which
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are merged and integrated in this Agreement. There are no oral understandings,
representations or agreements between the parties which are not in this
Agreement or in other written agreements signed by the parties in connection
this Agreement. The failure of Silicon at any time to require Borrower to comply
strictly with any of the provisions of this Agreement shall not waive Silicon's
right later to demand and receive strict compliance. Any waiver of a default
shall not waive any other default. None of the provisions of this Agreement may
be waived except by a specific written waiver signed by an officer of Silicon
and delivered to Borrower. The provisions of this Agreement may not be amended,
except in a writing signed by Borrower and Silicon. Borrower shall reimburse
Silicon for all reasonable attorneys' fees and all other reasonable costs
incurred by Silicon, in connection with this Agreement (whether or not a lawsuit
is filed). If Silicon or Borrower files any lawsuit against the other predicated
on a breach of this Agreement, the prevailing party shall be entitled to recover
its reasonable costs and attorneys' fees from the non-prevailing party. Borrower
may not assign any rights under this Agreement without Silicon's prior written
consent. This Agreement shall be governed by the laws of the State of
Washington.
7. Mutual Waiver of Jury Trial
BORROWER AND SILICON EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS
AGREEMENT OR ANY CONDUCT, ACT OR OMISSION OF SILICON OR BORROWER OR ANY OF THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR AFFILIATES.
8. Borrower shall maintain a Minimum Tangible Net Worth (shareholders equity
less intangible assets) of $400,000.
IMAGEX, INC.
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By: /s/ Xxxx Xxxxxx
---------------------------------
CFO
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Silicon:
SILICON VALLEY BANK
By: Illegible
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Title Senior Vice President
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[SILICON VALLEY LOGO]
Schedule to
QuickStart Loan and Security Agreement (Master)
BORROWER: ImageX, Inc.
DATE: February 26, 1997
This Schedule is an integral part of the Loan and Security Agreement
between Silicon Valley Bank ("Silicon") and the above-named borrower
("Borrower") of even date.
Credit Limit (Aggregate) $400,000.00 (includes, without limitation,
(Section 1): Equipment Advances and the Merchant Services
and Business Visa Reserve, if any).
Interest Rate (Section 1): A rate equal to the "Prime Rate" in effect from
time to time, plus 2% per annum. Interest shall be
calculated on the basis of a 360-day year for the
actual number of days elapsed. "Prime Rate" means
the rate announced from time to time by Silicon as
its "prime rate;" it is a base rate upon which
other rates charged by Silicon are based, and it
is not necessarily the best rate available at
Silicon. The interest rate applicable to the
Obligations shall change on each date
there is a change in the Prime Rate.
Maturity Date (Section 4): August 26, 1998
Other Locations and
Addresses (Section 3.2): ____________________________
Other Agreements: Borrower also agrees as follows:
1. Loan Fee. Borrower shall concurrently
pay Silicon a non-refundable Loan Fee in
the amount of $4,000.00.
2. Banking Relationship. Borrower shall at all
times maintain its primary banking
relationship with Silicon.
Borrower: Silicon:
IMAGEX, INC. SILICON VALLEY BANK
By /s/ Xxxx Xxxxxx By
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Chief Financial Officer Title Senior Vice President
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[SILICON VALLEY LOGO]
Schedule to
QuickStart Loan and Security Agreement (Equipment Advances)
BORROWER: ImageX, Inc.
DATE: February 26, 1997
This Schedule is an integral part of the Loan and Security Agreement
between Silicon Valley Bank ("Silicon") and the above-named borrower
("Borrower") of even date.
Credit Limit (Aggregate) $400,000.00 (such amount to be funded under
(Section 1): the aggregate Credit Limit). Equipment
Advances will be made only on or prior to
August 26, 1997 (the "Last Advance Date") and
only for the purpose of purchasing equipment
reasonably acceptable to Silicon. Borrower
must provide invoices for the equipment to
Silicon on or before the Last Advance Date.
Interest Rate (Section 1): A rate equal to the "Prime Rate" in effect from
time to time, plus 2% per annum. Interest shall be
calculated on the basis of a 360-day year for the
actual number of days elapsed. "Prime Rate" means
the rate announced from time to time by Silicon as
its "prime rate;" it is a base rate upon which
other rates charged by Silicon are based, and it
is not necessarily the best rate available at
Silicon. The interest rate applicable to the
Obligations shall change on each date
there is a change in the Prime Rate.
Maturity Date (Section 4): After the Last Advance Date, the unpaid principal
balance of the Equipment Advances shall be repaid
in 24 equal monthly installments of principal,
plus interest, commencing on September 26, 1997
and continuing on the same day of each month
thereafter
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until the entire unpaid principal balance of
the Equipment Advances and all accrued
unpaid interest have been paid (subject to
Silicon's right to accelerate the
Equipment Advances on an Event of Default).
Borrower: Silicon:
IMAGEX, INC. SILICON VALLEY BANK
By /s/ Xxxx Xxxxxx By
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Chief Financial Officer Title Senior Vice President
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[SILICON VALLEY LOGO]
Schedule to QuickStart Loan and Security Agreement (Merchant
Services/Business Visa-Registered Trademark- Sublimit)
BORROWER: ImageX, Inc.
DATE: February 26, 1997
This Schedule is an integral part of the Loan and Security Agreement
between Silicon Valley Bank ("Silicon") and the above-named borrower
("Borrower") of even date.
Merchant Services/ The aggregate Credit Limit shall be reduced by an
Business Visa(R) amount equal to the sum of (a) $0 (the "Merchant
Sublimit (Section 1) Service Reserve") and (b) $30,000.00 (the
"Business Visa-Registered Trademark- Reserve").
Silicon may, in its sole discretion, charge as
Loans, any amounts that may become due or owing
to Silicon in connection with merchant credit
card processing services and/or business
Visa-Registered Trademark- credit card services
furnished to Borrower by or through Silicon,
collectively, the "Credit Card Services."
Borrower shall execute all standard form
applications and agreements, including without
limitation, the Indemnification and Pledge
Agreement, of Silicon in connection with the
Credit Card Services and, without limiting any
of the terms of such applications and
agreements, Borrower will pay all standard fees
and charges of Silicon in connection with the
Credit Card Services and, without limiting any
of the terms of such applications and
agreements, Borrower will pay all standard fees
and charges of Silicon in connection with the
Credit Card Services.
Maturity Date (Section 4): August 26, 1998
Borrower: Silicon:
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IMAGEX, INC. SILICON VALLEY BANK
By /s/ Xxxx Xxxxxx By
----------------------------- --------------------------------
Chief Financial Officer Title Senior Vice President
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[SILICON VALLEY LOGO]
Amended Schedule to
QuickStart Loan and Security Agreement (Master)
BORROWER: ImageX, Inc.
DATE: February 24, 1997
This Amended and Restated Schedule is an integral part of the QuickStart
Loan and Security Agreement between Silicon Valley Bank ("Silicon") and the
above-named borrower ("Borrower") dated as of February 26, 1997, as may be
further amended from time to time.
Credit Limit (Aggregate) $630,000.00 (includes, without limitation,
(Section 1): Equipment Advances, if any, and the
Merchant Services Business Credit Card
Reserve).
Interest Rate (Section 1) A rate equal to the "Prime Rate" in effect from
time to time, plus 2.00% per annum. Interest
shall be calculated on the basis of a 360-day
year for the actual number of days elapsed.
"Prime Rate" means the rate announced from time
to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by
Silicon are based, and it is not necessarily
the best rate available at Silicon. The
interest rate applicable to the Obligations
shall change on each date there is a change in
the Prime Rate.
Maturity Date (Section 4): August 26, 1998
Other Locations and Addresses
(Section 3.2): ______________________________________
Other Agreements: Borrower also agrees as follows:
1. Banking Relationship. Borrower shall at
all times maintain its primary banking
relationship with Silicon.
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Borrower: Silicon:
IMAGEX, INC. SILICON VALLEY BANK
By /s/ Xxxx Xxxxxx By
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President or Vice President Title
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[SILICON VALLEY LOGO]
Amended Schedule to
QuickStart Loan and Security Agreement (Master)
BORROWER: XxxxxX.xxx, formerly known as ImageX, Inc.
DATE: March, 1999
This Amended and Restated Schedule is an integral part of the QuickStart
Loan and Security Agreement between Silicon Valley Bank ("Silicon") and the
above-named borrower ("Borrower") dated as of _____________, as may be further
amended from time to time.
Credit Limit (Aggregate) $400,000 (includes, without limitation,
(Section 1): Equipment Advances, if any, and the
Merchant Services Business Credit Card
Reserve).
Interest Rate (Section 1) A rate equal to the "Prime Rate" in effect from
time to time, plus ___% per annum. Interest
shall be calculated on the basis of a 360-day
year for the actual number of days elapsed.
"Prime Rate" means the rate announced from time
to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by
Silicon are based, and it is not necessarily
the best rate available at Silicon. The
interest rate applicable to the Obligations
shall change on each date there is a change in
the Prime Rate.
Maturity Date (Section 4): August 26, 1999
Other Locations and Addresses
(Section 3.2): ______________________________________
Other Agreements: Borrower also agrees as follows:
1. Loan Fee. Borrower shall concurrently
pay Silicon a non-refundable Loan Fee in
the amount of $____________.
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2. Banking Relationship. Borrower shall at all
times maintain its primary banking
relationship with Silicon.
Borrower: Silicon:
/s/ Xxxxxxx Xxxxxx
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SILICON VALLEY BANK
By President By CD JH
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President or Vice President Title
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[SILICON VALLEY LOGO]
Amended Schedule to
QuickStart Loan and Security Agreement (Master)
BORROWER: XxxxxX.xxx, formerly known as ImageX, Inc.
DATE: March 31, 1999
This Amended and Restated Schedule is an integral part of the QuickStart
Loan and Security Agreement between Silicon Valley Bank ("Silicon") and the
above-named borrower ("Borrower") dated as of February 26, 1997, as may be
further amended from time to time.
Credit Limit (Aggregate) $230,000.00 (includes, without limitation,
(Section 1): Equipment Advances, if any, and the
Merchant Services Business Credit Card
Reserve).
Interest Rate (Section 1) A rate equal to the "Prime Rate" in effect from
time to time, plus ___% per annum. Interest
shall be calculated on the basis of a 360-day
year for the actual number of days elapsed.
"Prime Rate" means the rate announced from time
to time by Silicon as its "prime rate;" it is a
base rate upon which other rates charged by
Silicon are based, and it is not necessarily
the best rate available at Silicon. The
interest rate applicable to the Obligations
shall change on each date there is a change in
the Prime Rate.
Maturity Date (Section 4): November 26, 1999
Other Locations and Addresses
(Section 3.2): ______________________________________
Other Agreements: Borrower also agrees as follows:
1. Loan Fee. Borrower shall concurrently
pay Silicon a non-refundable Loan Fee in
the amount of $_____N/A_____.
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2. Banking Relationship. Borrower shall at all
times maintain its primary banking
relationship with Silicon.
Borrower: Silicon:
/s/ Xxxxxxx Xxxxxx
-----------------------
SILICON VALLEY BANK
By President By CD JH
------------------------------- ------------------------------
President or Vice President Title Vice President
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NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of 2-26-97, by and between
Imagex, Inc. ("Borrower") and Silicon Valley Bank ("Bank").
In connection with, among other documents, the Loan and Security Agreement
(the "Loan Documents") being concurrently executed herewith between Borrower
and Bank, Borrower agrees as follows:
1. Borrower shall not sell, transfer, assign, mortgage, pledge, lease,
grant a security interest in, or encumber any of Borrower's
intellectual property, including, without limitation, the following:
a. Any and all copyright rights, copyright applications, copyright
registrations and like protections in each work or authorship
and derivative work thereof, whether published or unpublished
and whether or not the same also constitutes a trade secret, now
or hereafter existing, created, acquired or held;
b. All mask works or similar rights available for the protection
of semiconductor chips, now owned or hereafter acquired;
c. Any and all trade secrets, and any and all intellectual
property rights in computer software and computer software
products now or hereafter existing, created, acquired or held;
d. Any and all design rights which may be available to Borrower
now or hereafter existing, created, acquired or held;
e. All patents, patent applications and like protections
including, without limitation, improvements, divisions,
continuations, renewals, reissues, extensions and
continuations-in-part of the same, including without limitation
the patents and patent applications;
f. Any trademark and servicemark rights, whether registered or
not, applications to register and registrations of the same and
like protections, and the entire goodwill of the business of
Borrower connected with and symbolized by such trademarks,
including without limitation;
g. Any and all claims for damages by way of past, present and
future infringements of any of the rights included above, with
the right, but not the obligation, to xxx for and collect such
damages for said use or infringement of the intellectual
property rights identified above;
h. All licenses or other rights to use any of the Copyrights,
Patents, Trademarks or Mask Works, and all license fees and
royalties arising from such use to the extent permitted by such
license or rights; and
i. All amendments, extensions, renewals and extensions of any of
the Copyrights, Trademarks, Patents, or Mask Works; and
j. All proceeds and products of the foregoing, including without
limitation all payments under insurance or any indemnity or
warranty payable in respect of any of the foregoing;
2. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative
Pledge Agreement.
3. Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Documents.
BORROWER:
ImageX, Inc.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: CFO
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BANK:
SILICON VALLEY BANK
By:
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Name:
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Title:
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