CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of December 1, 1995 (this "Agreement")
between Integrated Sensor Solutions, Inc., a California corporation ("ISS")
(formerly known as Integrated Semiconductor Solutions, Inc.), and Silicon
Systems, Inc., a Delaware corporation ("SSi").
WHEREAS, SSi has provided products to ISS, and as a result thereof, ISS is
indebted to SSi in the amount of $678,683.54; and
WHEREAS, SSi and ISS desire to evidence such obligation by a secured
promissory note from ISS;
NOW, THEREFORE, in consideration of the foregoing, the mutual agreements
and covenants set forth below and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE 1 - DEFINITIONS
The following definitions shall be applicable to both the singular and
plural forms of the defined terms:
1.1 "Affiliate" means any Person which directly or indirectly controls,
is controlled by, or is under common control with, another Person.
"Control," "controlled by" and "under common control with" means direct or
indirect possession of the power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided that control shall be conclusively presumed
when any Person or affiliated group directly or indirectly owns five percent
or more of the securities having ordinary voting power for the election of
directors of a corporation; and provided that ISS and SSi shall not be
considered Affiliates.
1.2 "Agreement" means this Agreement as it may be amended from time to
time.
1.3 "Credit Documents" means, individually and collectively, this
Agreement, the Secured Note, the Secured Agreement and all other contracts,
instruments, addenda and documents executed in connection with the extension of
credit which is the subject of this Agreement, including, without limitation,
any financing statements and other documents and instruments related to the
security interest granted to SSi pursuant to this Agreement.
1.4 "Event of Default" means by any event described in ARTICLE 8.
1.5 "GAAP" means generally accepted accounting principles and practices
consistency [SIC] applied.
1.6 "Liens" means any voluntary or involuntary security interest, mortgage,
pledge, claim, charge, encumbrance, title retention agreement, or third party
interest, covering all or any part of the property of ISS or any other Person.
1.7 "May 1993 Agreement" means that certain Loan and Security Agreement
dated May 30, 1993 between SSi and ISS.
1.8 "Person" means any individual or entity.
1.9 "Related Person" means any Affiliate of ISS, or any officer, employee,
director or shareholder of ISS or any Affiliate, or a relative of any of them.
1.10 "Secured Note" means the promissory note to SSi, substantially in the
form attached hereto as EXHIBIT A, executed by ISS to evidence the Loans.
1.11 "Security Agreement" means the Security Agreement between SSi and ISS,
substantially in the form attached hereto as EXHIBIT B.
1.12 "Shares" means any shares of ISS Common Stock issued or issuable to
SSi pursuant to this Agreement.
1.13 "Silicon Valley Bank Credit Agreement" shall mean that Business Loan
Agreement dated June 7, 1995, between Silicon Valley Bank and ISS providing for
the loan of up to $1,000,000 to ISS, secured by substantially all the assets of
ISS.
ARTICLE 2 - SECURED NOTE
2.1 EVIDENCE OF INDEBTEDNESS. ISS and SSi hereby acknowledge and agree
that as of December ____, 1995, ISS was indebted to SSi in the amount of
$678,683.54 for SSi products purchased by ISS, as evidenced by SSi's invoices
to ISS listed on EXHIBIT C. In consideration of the postponement of the
payment and collection of such indebtedness, SSi agrees to take and ISS
agrees to execute and deliver to SSi a secured promissory note in the amount
of $678,683.54 to the order of SSi (the "Secured Note"), substantially in the
form attached hereto as EXHIBIT A, which amount together with any and all
interest accrued thereon from December 1, 1995 and any other amounts due and
payable with respect thereto shall be due and payable on the earlier of
December 1, 1996 or the closing of a public offering of ISS Common Stock.
2.2 INTEREST ON THE SECURED NOTE. The outstanding principal amount of
the Secured Note shall bear simple interest at the rate of nine percent (9%)
per annum, payable on the due date of the Secured Note. All interest
payments shall be made by delivery to SSi of that number of shares of Common
Stock of ISS equal to the amount of interest then due divided by $1.51
(subject to adjustment as set forth in Section 2.6).
2.3 ACCELERATION. If the obligations under the Secured Note are
accelerated pursuant to and in accordance with the terms of this Agreement,
ISS shall immediately pay to SSi on demand, all principal outstanding under
the Secured Note and all other sums due
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and owing under any Credit Document including, without limitation, any costs
and expenses incurred by SSi in connection with such acceleration. SSi shall
provide to ISS a statement of the amount payable on account of any such
prepayment, which statement, absent obvious error, shall be conclusive
evidence thereof.
2.4 INTEREST ON OVERDUE PAYMENT. In the event that the obligations under
the Secured Note are not paid in full when due or after acceleration by SSi
pursuant to the terms hereof, any unpaid principal and interest under the
Secured Note shall bear interest from such date, at a fluctuating rate per
annum equal to the Prime Rate plus 5%, or the highest rate per annum
permitted by applicable law, whichever is less, until paid in full, whether
before or after judgment. For purposes of this Agreement, "Prime Rate" means
the rate publicly announced from time to time by First Interstate Bank as its
prime rate.
2.5 CALCULATION OF INTEREST. Interest shall be calculated on actual days
elapsed on the basis of a 360-day year. In the case of interest on any
overdue payments hereunder, each change in the rate of interest shall become
effective on the date each Prime Rate change is publicly announced by First
Interstate Bank. In no event shall ISS be obligated to pay interest at a
rate in excess of the highest rate permitted by applicable law from time to
time in effect.
2.6 ADJUSTMENT OF CONVERSION RATE FOR INTEREST PAYMENT. The price at
which Shares are used to pay interest as set forth in Section 2.2, shall be
adjusted from time to time as follows:
(a) On any recapitalization of ISS through the subdivision or
combination of ISS's outstanding shares of Common Stock into a greater or
smaller number of shares, such prices shall be reduced or increased,
respectively, in the same proportion.
(b) If ISS takes a record of the holders of its Common Stock for
the purpose of entitling them to receive a dividend or other distribution
payable in Common Stock, or in securities convertible or exchangeable for
Common Stock, the maximum number of shares of Common Stock issuable in
payment of such dividend or distribution, or on conversion of or in exchange
for the securities convertible into or exchangeable for Common Stock, shall
be deemed to have been issued and to be outstanding as of such record date,
and such prices shall be decreased in proportion to the increase in the
number of outstanding shares of Common Stock resulting therefrom.
Upon the occurrence of each adjustment or readjustment of the
prices pursuant to this Section 2.6, ISS, at its expense, shall promptly
compute such adjustment or readjustment and furnish to SSi a certificate
setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. ISS shall, upon written
request at any time by SSi, furnish or cause to be furnished a like
certificate setting forth (i) such adjustments and readjustments, (ii)
respective prices in effect at the time, and (iii) the number of shares of
Common Stock and the amount, if any, of other property which at the time
would be received upon the
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exercise of rights hereunder.
ARTICLE 3 - REGISTRATION RIGHTS
3.1 Any shares issued by ISS to SSi under Section 2.2, shall be
considered as "Shares" under the May 1993 Agreement and SSi shall be entitled
to registration rights as set forth therein with respect to such shares.
ARTICLE 4 - SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. As security for the payment when due of
the principal of and all other amounts due and owing to SSi under the Secured
Note, and any other amounts due to SSi from ISS with respect thereto, ISS
shall enter into a Security Agreement in the form attached as EXHIBIT B.
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES
5.1 DUE ORGANIZATION. ISS is duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization, and is duly
qualified to conduct business in each jurisdiction in which its business is
conducted;
5.2 AUTHORIZATION, VALIDITY AND ENFORCEABILITY. The execution, delivery
and performance of all Credit Documents executed by ISS are within ISS's
powers, have been duly authorized and all such Credit Documents constitute
valid and binding obligations of ISS, enforceable against ISS in accordance
with their respective terms;
5.3 COMPLIANCE WITH APPLICABLE LAWS. ISS has complied with all
licensing, permit and fictitious name requirements, if any, necessary to
lawfully conduct the business in which it is engaged and with all laws and
regulations applicable to any sales, leases or the furnishing of services by
ISS, including without limitation those requiring consumer or other
disclosures;
5.4 LICENSES, TRADEMARKS. ISS has all patents, licenses, trademarks,
trademark rights, trade names, trade name rights, copyrights, permits and
franchises required in order for ISS to conduct its business ad operate its
properties as now or proposed to be conducted without conflict with the
rights of others.
5.5 NO CONFLICT. The execution, delivery, and performance by borrower
of all Credit Documents are not in conflict with the articles of
incorporation or bylaws of ISS or any law, rule, regulation, order or
directive, or any indenture agreement, or other agreement, document,
instrument or undertaking to which ISS is a party or by which ISS or its
properties may be bound or affected;
5.6 NO LITIGATION, CLAIMS, OR PROCEEDINGS. There is no litigation, tax
claim, proceeding or dispute pending, or, to the knowledge of ISS, threatened
against or affecting ISS or its property, except as disclosed in writing to
SSi prior to the date of this Agreement.
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5.7 NO LIENS. Except for the Lien of Silicon Valley Bank pursuant to
the Silicon Valley Bank Credit Agreement, ISS has good and marketable title
to the Collateral (as defined in the Security Agreement) and such Collateral
is free and clear of all Liens.
5.8 CORRECTNESS OF FINANCIAL STATEMENTS ISS's financial statements
which have been delivered to SSi fairly and accurately reflect ISS's
financial condition as of December 31, 1994 and September 30, 1995; and,
since each such date, there has been no material adverse change in ISS's
financial condition or business.
5.9 NO SUBSIDIARIES. ISS has no subsidiaries and does not control any
other business entity.
5.10 NO EVENT OF DEFAULT. No Event of Default has occurred and is
continuing.
5.11 CAPITALIZATION. The authorized capital stock of ISS consists solely
of 13,500,000 shares of Common Stock, no par value, of which 8,082,968 shares
are outstanding, and 7,000,000 shares of Preferred Stock of which 2,000,000
shares are designated Series A Preferred Stock, no par value, of which
2,000,000 shares are outstanding, 678,664 shares are designated Series B
Preferred Stock, no par value, of which 678,664 shares are outstanding,
1,340,000 shares are designated Series C Preferred Stock, no par value, of
which 1,340,000 shares are outstanding and 1,325,096 are designated Series D
preferred Stock, no par value, of which 1,325,096 are outstanding. All of
the issued and outstanding shares of ISS are validly issued and outstanding,
fully paid and nonassessable, and were not issued in violation or
contravention of any applicable federal or state securities laws or
regulations or the preemptive rights of any shareholders or any agreement to
which ISS is or was a party. ISS has not granted, sold or issued, nor is a
party to any agreements, commitments or understandings providing for the
grant, sale or issuance of any of its capital stock or other securities, nor
are there outstanding any subscriptions, options, warrants, or other rights
to purchase or receive, and ISS is not obligated to issue, sell or otherwise
transfer any of its shares of capital stock or other securities. There are no
outstanding obligations, commitments, understanding or plans of ISS to
repurchase, redeem, or otherwise acquire any of its shares of capital stock
or other securities.
5.12 THE SHARES. Upon the issuance of Shares on payment of interest
hereunder, all of such Shares shall be validly issued and outstanding, fully
paid and nonassessable and free and clear of all liens, encumbrances,
security interests, equities, options, claims, charges, restrictions and
defects in title of any nature whatsoever and shall not have been issued in
violation of contravention of any applicable federal or state laws or
regulations or the preemptive rights of any shareholders or any agreement to
which ISS is or will be a party.
ARTICLE 6 - AFFIRMATIVE COVENANTS
Until the repayment in full of the Secured Note, and all accrued interest
thereon, and the payment of any other monetary obligations to SSi hereunder,
ISS will, unless SSi
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otherwise consents in writing:
6.1 NOTICE TO SSi. Promptly give written notice to SSi of:
(a) Any litigation or administrative or regulatory proceeding
affecting ISS where the amount claimed against ISS is $20,000 or more, or
where the granting of the relief requested would have a material adverse
effect on ISS' financial condition or business;
(b) Any substantial dispute which may exists between ISS and any
governmental or regulatory authority;
(c) Any Event of Default;
(d) Any change in the location of any of ISS's places of business
or of the establishment of any new, or the discontinuance of any existing,
place of business;
(e) Any other matter which has resulted or might result
in a material adverse change in ISS's financial condition or business.
6.2 TAXES AND OTHER LIABILITIES. Pay all ISS's obligations when due;
pay all taxes and other governmental or regulatory assessments before
delinquency or before any penalty attaches thereto, except as may be
contested in good faith by the appropriate procedures and for which ISS shall
maintain appropriate reserves; and timely file all required tax returns.
6.3 RESERVATION OF STOCK. At all times reserve and keep available out
of its authorized by unissued shares of Common Stock sufficient shares of its
Common Stock solely for the purpose of effecting the payment of accrued
interest on the Secured Note; and if at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient, ISS will take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock so such number of shares as shall be sufficient for
such purposes.
6.4 PAYMENT TERMS. Notwithstanding Section 4.1 of the May 1993
Agreement, pay for all SSi products and services on a net 30 days basis.
ARTICLE 7 - NEGATIVE COVENANTS
Until repayment in full of the Secured Note, and all accrued interest
thereon, and the payment of any other monetary obligations to SSi hereunder,
ISS will not, without SSi's prior written consent:
7.1 INDEBTEDNESS. By indebted for borrowed money, the deferred purchase
price of property, or leases which would be capitalized in accordance with
GAAP; or become liable as surety, guarantor, accommodation party or otherwise
for or upon the obligation of any other Person, except:
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(a) The acquisition of supplies or inventory on normal trade
credit;
(b) The endorsement of negotiable instruments for deposit or
collection in the ordinary course of ISS's business;
(c) The indebtedness of ISS under this Agreement; and
(d) Indebtedness to Silicon Valley Bank pursuant to the Silicon
Valley Bank Credit Agreement.
7.2 LIENS. Create, incur, assume or permit to exist any Lien, or grant
any other Person a negative pledge, on any of ISS's property, except:
(a) Involuntary Liens which, in the aggregate, would not have a
material adverse effect on ISS's financial condition or business;
(b) Liens for current taxes or other governmental or regulatory
assessments which are not delinquent, or which are contested in good faith by
the appropriate procedures and for which appropriate reserves are maintained:
(c) Liens in favor of SSi; and
(d) Lien in favor of Silicon Valley Bank pursuant to the Silicon
Valley Bank Credit Agreement.
7.3 DIVIDENDS. Pay any dividends except those payable solely in ISS's
capital stock; or purchase, redeem or otherwise acquire for value or make any
other distribution with respect to any of ISS's capital stock.
7.4 LIMITATION ON CAPITAL EXPENDITURES. Except with the written consent
of SSi, expend or be committed to expend $80,000.00 or more in the aggregate
for the acquisition of gross fixed or capital assets during the period
commencing on the date hereof through the payment in full of all obligations
of ISS to SSi.
7.5 TRANSACTIONS WITH RELATED PERSONS. Directly or indirectly enter
into any transaction with or for the benefit of a Related Person on terms
more favorable than would have been obtained in an "arms' length" dealing.
ARTICLE 8 - EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT. The occurrence of any of the following shall, at
SSi's option, constitute an "Event of Default" by ISS hereunder:
(a) ISS shall fail to make any payment of principal or interest
when due under this Agreement or to pay any fees or other charges when due,
or ISS or any other Person shall fail to provide SSi with, or to perform any
obligation under, any Credit Document;
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(b) Any representation or warranty made, or financial statement,
certificate or other document provided, by ISS shall prove to have been false
or misleading;
(c) ISS shall fail to pay its debts generally as they become due
or shall file any petition or action for relief under any bankruptcy,
insolvency, reorganization, moratorium, creditor composition law, or any
other law for the relief of or relating to debtors; an involuntary petition
shall be filed under any bankruptcy law against ISS, or a custodian,
receiver, trustee, assignee for the benefit of creditors, or other similar
official, shall be appointed to take possession, custody or control of the
property of ISS; or the dissolution or termination of business of ISS;
(d) ISS shall fail to perform under this Agreement, any other
Credit Document, the May 1993 Agreement, or any agreement related thereto or
any other agreement involving the borrowing of money, the purchase or
property, the advance of credit or any other monetary liability of any kind
to any Person;
(e) Any governmental or regulatory authority shall take any
action, any defined benefit pension plan maintained by ISS shall have any
unfunded liabilities, or any other event shall occur, any of which, in the
judgment of SSi, might have a material adverse effect on the financial
condition or business of ISS;
(f) SSi shall not have a perfected security interest in
(subordinate only to Silicon Valley Bank's Lien under the Silicon Valley Bank
Credit Agreement), or shall deem itself insecure with respect to the value
of, any collateral being held for obligations evidenced by the Credit
Documents;
(g) Any judgment(s) shall be entered against ISS or any
involuntary Lien(s) of any kind or character shall attach to any assets or
property of ISS any of which, in the judgment of SSi, might have a material
adverse effect on the financial condition or business of ISS;
(h) Without SSi's prior written consent, ISS's shareholders of
record as of the date hereof shall cease to own a majority of the voting
interest in ISS; or any change shall occur in the executive management of ISS
or any change shall occur in the corporate or legal structure of ISS; or
(i) ISS shall fail to perform any of its duties or obligations
under any Credit Document not specifically referenced in this ARTICLE 8.
If such default shall continue unremedied for a period of five (5)
days after notice thereof to ISS from SSi, THEREUPON, SSi may do any one or
more of the following:
(a) declare, without presentment, demand, protest or notice of
nonpayment or dishonor or any other notices or demands of any kind, all of
which ISS hereby expressly waives, all amounts of principal and any and all
other amounts due and
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owing under any Credit Documents to be immediately due and payable, whereupon
all of such amounts and other amounts declared due and payable shall be and
become immediately due and payable;
(b) exercise any and all of the rights and remedies conferred
upon SSi under this Agreement, the Security Agreement or any other Credit
Document either concurrently or in such order as SSi may determine;
(c) exercise in respect of the Collateral, in addition to all
other rights and remedies provided for herein, in the Security Agreement or
otherwise available to it, all rights and remedies of a secured party after
default under the Uniform Commercial Code in force and effect in the State of
California at that time;
(d) exercise any other right or remedy provided by contract or
applicable law;
PROVIDED, that if such default cannot be cured with the payment of money,
then ISS shall have an additional two (2) days to remedy any such default so
long as ISS shall be diligently and in good faith seeking to remedy such
default.
8.2 SPECIAL REMEDIES UPON DEFAULT. In addition to the remedies set forth
in this Article 8, upon the occurrence and continuance of an Event of
Default, ISS shall and hereby does grant to SSi a perpetually royalty-free,
non-exclusive license to commercially exploit any and all ISS patents and
other technology of ISS, including, without limitation, its circuit design
cell libraries and circuit macros, which ISS now or at the time of default
possesses, and a perpetually royalty-free, non-exclusive license to
manufacture, use and sell ISS Application Specific Integrated Circuit (ASIC)
products which are non-proprietary to any third party. ISS shall take all
actions reasonably requested by SSi to permit SSi to exploit such licenses.
ARTICLE 9 - GENERAL PROVISIONS
9.1 NOTICES. Any notice given by any party under any Loan Document
shall be in writing and personally delivered, sent by United States mail,
postage prepaid, or sent by telex or other authenticated message, charges
prepaid and addressed as follows:
TO ISS: TO SSI:
Integrated Sensor Solutions, Inc. Silicon Systems, Inc.
000 Xxxxx Xxxx Xxxxxxx 00000 Xxxxxx Xxxx
Xxx Xxxx, Xxxxxxxxxx 00000 Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: President Attn: Corporate Counsel
Tel. No.: (000) 000-0000 Tel. No.: (000)-000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Each party may change the address to which notices, requests and other
communications
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are to be sent by giving written notice of such change to each other party.
9.2 DISPUTE RESOLUTION.
(a) MANDATORY ARBITRATION. Any controversy or claim between or
among the parties including but not limited to those arising out of or
relating to this Agreement or any Credit Document, including any claim based
on or arising from an alleged tort, shall be determined by arbitration in
accordance with Title 9 of the U.S. Code and the Commercial Arbitration Rules
of the American Arbitration Association ("AAA") in Orange County, California.
All statutes of limitations which would otherwise be applicable shall apply
to any arbitration proceeding under this subparagraph (a). Judgment upon the
award rendered may be entered in any court having jurisdiction.
(b) PROVISIONAL REMEDIES, SELF HELP, AND FORECLOSURE. No
provision of, or the exercise of any rights under, subparagraph (a), shall
limit the right of any party to exercise self help remedies such as setoff,
to foreclose against any collateral, or to obtain provisional or ancillary
remedies such as injunctive relief or the appointment of a receiver from a
court having jurisdiction before, during or after the pendency of any
arbitration. The institution and maintenance of an action for judicial
relief or pursuant of provisional or ancillary remedies or exercise of self
help remedies shall not constitute a waiver of the right of any party,
including the plaintiff, to submit the controversy or claim to arbitration.
9.3 BINDING EFFECT. The Credit Documents shall be binding upon and
inure to the benefit of ISS and SSi and their successors and assign's
provided, however, that ISS may not assign or transfer ISS's rights or
obligations under any Loan Document without SSi's prior written consent.
9.4 NO WAIVER. Any waiver, consent or approval by SSi of any Event of
Default or breach of any provision, condition, or covenant of any Credit
Document must be in writing and shall be effective only to the extent set
forth in writing. No waiver of any breach of default shall be deemed a
waiver of any later breach or default of the same or any other provision of
any Credit Document. No failure or delay on the part of SSi in exercising
any power, right, or privilege under any Credit Document shall operate as a
waiver thereof, and no single or partial exercise of as [SIC] such power,
right, or privilege shall preclude any further exercise thereof or the
exercise of any other power, right or privilege.
9.5 RIGHTS CUMULATIVE. All rights and remedies existing under the
Credit Documents are cumulative to, and not exclusive of, any other rights or
remedies available under contract of applicable law.
9.6 UNENFORCEABLE PROVISIONS. Any provision of any Credit Document
executed by ISS which is prohibited or unenforceable in any jurisdiction,
shall be so only as to such jurisdiction and only to the extent of such
prohibition or unenforceability, but all the remaining provisions of any such
Credit Document shall remain valid and enforceable.
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9.7 GOVERNING LAW. Except as may be otherwise expressly stated therein,
the Credit Documents shall be governed by, and construed in accordance with,
the laws of the State of California.
9.8 ACCOUNTING TERMS. Except as otherwise provided in this Agreement,
accounting terms and financial covenants and information shall be determined
and prepared in accordance with GAAP as in effect on the date of this
Agreement.
9.9 INDEMNIFICATION. ISS shall indemnify SSi against, and hold SSi
harmless from, all claims, actions, losses, and expenses, including
attorneys' fees and costs incurred by SSi, arising from any contention that
ISS has failed to comply with any law, rule, regulation, order or directive
applicable to ISS in connection herewith except for any such contention which
is due to SSi's willful misconduct or gross negligence as finally determined
by a court of competent jurisdiction. This indemnification shall survive the
repayment of all principal and other amounts payable in connection with this
Agreement, the Secured Note and any other Credit Documents.
9.10 REIMBURSEMENT. Except as may otherwise be provided for in a written
agreement between ISS and SSi entered into subsequent to the date hereof, ISS
shall reimburse SSi for all costs and expenses, including, without
limitation, reasonable attorneys' fees, expended or incurred by SSi in any
arbitration, judicial reference, legal action or otherwise in connection with
(a) the enforcement of the Credit Documents, including, without limitation,
during a workout, attempted workout, and/or in connection with the rendering
of legal advice as to SSi's rights, remedies and obligations under the Credit
Documents in connection therewith, (b) collecting any sum which becomes due
and owing to SSi under any Credit Document, (c) any proceeding for
declaratory relief, any counterclaim to any proceeding, or any appeal, or (d)
the protection, preservation or enforcement of any rights of SSi hereunder or
under any Credit Document.
9.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts which, when taken together, shall constitute but one
original agreement.
9.12 ENTIRE AGREEMENT. The Credit Documents are intended by the parties
as the final expression of their agreement and therefore contain the entire
agreement between the parties and supersede all prior understandings or
agreements concerning the subject matter hereof. This Agreement may be
amended only in a writing signed by ISS and SSi.
9.13 CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not and shall not be deemed to
effect, limit, amplify or modify the terms and provisions hereof.
IN WITNESS WHEREOF, ISS and SSi have executed this Agreement as of the
date set forth in the preamble.
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INTEGRATED SENSOR
SOLUTIONS, INC. SILICON SYSTEMS, INC.
By: /s/ M.D. NAIK By: /s/ XXXXXXX X. XXXXXXX
---------------------- -----------------------
Name Name
--------------------- ----------------------
Title: President Title: Sr VP/CFO
------------------- --------------------
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EXHIBIT A
[Form of Secured Note]
SECURED PROMISSORY NOTE
$678,683.54 December 1, 0000
Xxx Xxxx, Xxxxxxxxxx
FOR VALUE RECEIVED, INTEGRATED SENSOR SOLUTIONS, INC., a California
corporation ("ISS"), hereby promises to pay to SILICON SYSTEMS, INC., a Delaware
corporation ("SSi"), at the registered office of SSi, the principal sum of Six
Hundred Seventy-Eight Thousand Six Hundred Eighty-Three Dollars and Fifty-Four
Cents ($678,683.54), in lawful money of the United States of America and in
immediately available funds, on or before the earlier of (i) December 1, 1996,
or (ii) the consummation of a public offering by ISS of its Common Stock, in
accordance with the terms and provisions of Credit Agreement dated December 1,
1995 between ISS and SSi (the "Credit Agreement"), and to pay interest on such
principal amount, at such office, until such amount shall be paid in full, at
the rates per annum and as provided for in the Credit Agreement.
Capitalized terms used in this Note have the respective meanings assigned
to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events. The obligations of ISS under this
Note are secured pursuant to a Security Agreement dated December 1, 1995,
between ISS and SSi (the "Security Agreement"), and all terms and conditions of
the Credit Agreement and Security Agreement are incorporated herein.
ISS waives presentment, demand, and notice of dishonor, protest and
nonpayment.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
CALIFORNIA.
INTEGRATED SENSOR SOLUTIONS, INC.
By:
------------------------------
Name:
Title:
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SCHEDULE 1
TO
SECURITY AGREEMENT
PRIOR LIENS
Lien of Silicon Valley Bank pursuant to a Business Loan Agreement dated
June 7, 1995, between Silicon Valley Bank and ISS, as evidenced by the UCC-1
Financing Statement No. 95 17160725 filed with the California Secretary of State
on June 19, 1995.
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SCHEDULE 2
TO
SECURITY AGREEMENT
LOCATION OF COLLATERAL
Integrated Sensor Solutions, Inc.
000 Xxxxx Xxxx Xxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
-00-
XXXXXXX X
XXXXXXX # XXXXXXX DATE TOTAL
--------- ------------ -----
102429 04/17/95 $ 36,626.70
102429 04/17/95 6,626.70
102487 04/18/95 619.18
102499 04/19/95 700.00
102550 04/21/95 39,620.28
102548 04/21/95 14,704.22
102547 04/21/95 6,993.69
102531 04/21/95 16,126.05
102746 04/28/95 25,000.00
102747 05/02/95 371.54
102854 05/02/95 289.00
103047 05/09/95 3,094.83
103048 05/09/95 12,558.48
103034 05/09/95 2,259.99
103061 05/10/95 333.75
103082 05/11/95 53,043.19
103071 05/11/95 20,301.96
103232 05/16/95 1,080.00
103231 05/16/95 148.00
103330 05/18/95 11,984.10
103338 05/19/95 7,388.80
103337 05/19/95 29,098.70
103342 05/19/95 14,904.42
103341 05/19/95 980.34
A-202 05/18/95 7,753.00
103449 05/23/95 1,125.00
103448 05/23/95 1,125.00
103450 05/23/95 111.50
103451 05/23/95 731.70
103479 05/24/95 9,019.25
103478 05/24/95 4,375.25
103524 05/26/95 27,347.20
103515 05/26/95 20,976.13
103609 05/27/95 14,704.22
103734 06/02/95 3,471.45
103736 06/02/95 4,663.54
103772 06/05/95 11,654.22
103818 06/06/95 2,250.00
-16-
INVOICE # INVOICE DATE TOTAL
--------- ------------ -----
103819 06/06/95 81.20
103888 06/08/95 2,333.69
103887 06/08/95 4,663.69
103892 06/08/95 2,144.45
103893 06/08/95 10,619.60
103894 06/08/95 1,370.75
104014 06/16/95 27,038.75
104204 06/16/95 11,200.00
104025 06/16/95 4,900.00
102429 04/17/95 6,626.70
104084 06/19/95 18,178.00
104172 06/23/95 9,423.30
104339 06/23/95 2,250.00
104471 06/30/95 123.90
104703 07/12/95 251.72
104780 07/17/95 8,492.58
104937 07/21/95 1,400.00
105083 07/26/95 114,258.55
105220 07/31/95 3,649.19
105315 08/07/95 365.85
105336 08/08/95 126.08
105579 08/18/95 1,506.13
105813 08/21/95 2.89
105912 08/29/95 757.18
105980 08/31/95 10,321.87
6384701 09/06/95 1,973.87
6384901 09/07/95 3,507.49
6333502 09/12/95 8,471.12
4882822 09/15/95 53,737.00
TOTAL $678,683.64
-17-
