[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: September 30, 1996
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by those Amendments to Loan Agreement
dated April 3, 1995, May 31, 1995, August 31, 1995, September 30, 1995, December
31, 1995, March 31, 1996, and June 30, 1996, and as otherwise amended from time
to time (the "Loan Agreement"), as follows, effective as of the date hereof.
(Capitalized terms used but not defined in this Agreement, shall have the
meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) December 31, 1996 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
------------------------------------ ------------------------
President or Vice President Title VP
---------------------
By /s/ Xxxxx Xxxxx
------------------------------------
Secretary or Ass't Secretary
[LOGO] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Dated as of: June 30, 1996
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995, as amended by that Amendment to Loan Agreement dated August 31, 1995,
as amended by that Amendment to Loan Agreement dated September 30, 1995, as
amended by that Amendment to Loan Agreement dated December 31, 1995, as amended
by that Amendment to Loan Agreement dated March 31, 1996 and as otherwise
amended from time to time (the "Loan Agreement"), as follows, effective as of
the date hereof. (Capitalized terms used but not defined in this Amendment,
shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) September 30, 1996 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [Illegible] By /s/ [Illegible]
---------------------------- ---------------------------------
President or Vice Presidet Title VP
------------------------------
By /s/ Xxxxx Xxxxx
----------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: April 3, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON
VALLEY BANK ("Silicon") and the borrower named above (the "Borrower"). The
Parties agree to amend the Amended and Restated Loan and Security Agreement
between them, dated October 12, 1994 (the "Loan Agreement"), as follows,
effective as of the date hereof. (Capitalized terms used but not defined in this
Amendment, shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) May 31, 1995 or (ii) the Loan
Termination Date."
2. No Waiver, Etc. Silicon received a Notice of Attachment (the
"Attachment") regarding the Borrower's bank accounts at Silicon on March 30,
1995. As you know, Section 6.1 (f) of the Loan Agreement states that any "levy,
assessment, attachment, seizure, lien or encumbrance [which] is made on all or
any part of the Collateral which is not cured within 10 days after the
occurrence of the same" constitutes an Event of Default. The willingness of
Silicon to extend the Maturity Date as set forth herein does not in any manner
whatsoever waive, diminish or otherwise affect any of its rights and remedies
relating to the Event of Default arising if the Borrower fails to cure the
Attachment within 10 days of the occurrence of the same.
3. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
4. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the
parties with respect to the subject hereof. Except as herein
expressly amended, all of the terms and provisions of the Loan Agreement, and
all other documents and agreements between Silicon and the Borrower shall
continue in full force and effect and the same are hereby ratified and
confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ Authorized Officer By /s/ Authorized Officer
---------------------------- ---------------------------------
President or Vice Presidet Title VP
------------------------------
By /s/ Xxxxx Xxxxx
----------------------------
Secretary or Ass't Secretary
[LOGO] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Dated as of: June 30, 1996
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995, as amended by that Amendment to Loan Agreement dated August 31, 1995,
as amended by that Amendment to Loan Agreement dated September 30, 1995, as
amended by that Amendment to Loan Agreement dated December 31, 1995, as amended
by that Amendment to Loan Agreement dated March 31, 1996 and as otherwise
amended from time to time (the "Loan Agreement"), as follows, effective as of
the date hereof. (Capitalized terms used but not defined in this Amendment,
shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) September 30, 1996 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [Illegible] By /s/ [Illegible]
---------------------------- ---------------------------------
President or Vice President Title VP
------------------------------
By /s/ Xxxxx Xxxxx
----------------------------
Secretary or Ass't Secretary
[LOGO] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: March 31, 1996
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995, as amended by that Amendment to Loan Agreement dated August 31, 1995,
as amended by that Amendment to Loan Agreement dated September 30, 1995, as
amended by that Amendment to Loan Agreement dated December 31, 1995 and as
otherwise amended from time to time (the "Loan Agreement"), as follows,
effective as of the date hereof. (Capitalized terms used but not defined in this
Amendment, shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) June 30, 1996 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [Illegible] By /s/ [Illegible]
---------------------------- ---------------------------------
President or Vice President Title VP
------------------------------
By /s/ Xxxxx Xxxxx
----------------------------
Secretary or Ass't Secretary
[LOGO] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: December 31, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995, as amended by that Amendment to Loan Agreement dated August 31, 1995,
as amended by that Amendment to Loan Agreement dated September 30, 1995 and as
otherwise amended from time to time (the "Loan Agreement"), as follows,
effective as of the date hereof. (Capitalized terms used but not defined in this
Amendment, shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) March 31, 1996 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [Illegible] By /s/ [Illegible]
---------------------------- ---------------------------------
President or Vice President Title VP
------------------------------
By /s/ Xxxxx Xxxxx
----------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: September 30, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995, as amended by that Amendment to Loan Agreement dated August 31, 1995,
and as otherwise amended from time to time (the "Loan Agreement"), as follows,
effective as of the date hereof. (Capitalized terms used but not defined in this
Agreement, shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) December 31, 1995 or (ii) the Loan
Termination Date."
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and undertakings between the parties with respect to
the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
------------------------------------ ------------------------
President or Vice President Title AVP
---------------------
By /s/ Xxxxx Xxxxx
------------------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: August 31, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, as amended by that Amendment to Loan Agreement dated May
31, 1995 and as otherwise amended from time to time (the "Loan Agreement"), as
follows, effective as of the date hereof. (Capitalized terms used but not
defined in this Amendment, shall have the meanings set forth in the Loan
Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) September 30, 1995 or (ii) the Loan
Termination Date"
2. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
3. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the parties with respect
to the subject hereof. Except as herein expressly amended, all of the terms and
provisions of the Loan Agreement, and all other documents and agreements between
Silicon and the Borrower shall continue in full force and effect and the same
are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/ [ILLEGIBLE] By /s/ [ILLEGIBLE]
---------------------------------- -------------------------
President or Vice President Title AVP
----------------------
By /s/ Xxxxx Xxxxx
----------------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: May 31, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994, as amended by that Amendment to Loan Agreement
dated April 3, 1995, and as otherwise amended from time to time (the "Loan
Agreement"), as follows, effective as of the date hereof. (Capitalized terms
used but not defined in this Amendment, shall have the meanings set forth in the
Loan Agreement.)
1. Letter of Credit. The reference in Section 1.1 of the Schedule to Loan
Agreement to "Letter of Credit" shall mean the Letter of Credit, as extended,
modified or otherwise supplemented from time to time.
2. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) August 31, 1995 or (ii) the Loan
Termination Date"
3. No Waiver, Etc. Silicon received a Notice of Attachment (the
"Attachment") regarding the Borrower's bank accounts at Silicon on March 30,
1995. As you know, Section 6.1 (f) of the Loan Agreement states that any "levy,
assessment, attachment, seizure, lien or encumbrance [which] is made on all or
any part of the Collateral which is not cured within 10 days after the
occurrence of the same" constitutes an Event of Default. The willingness of
Silicon to extend the Maturity date as set forth herein does not in any manner
whatsoever waive, diminish or otherwise affect any of its rights and remedies
relating to the Event of Default arising if the Borrower fails to cure the
Attachment within 10 days of the occurrence of the same.
4. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
5. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the
Silicon Valley Bank Amendment to Loan Agreement
--------------------------------------------------------------------------------
parties with respect to the subject hereof. Except as herein expressly amended,
all of the terms and provisions of the Loan Agreement, and all other documents
and agreements between Silicon and the Borrower shall continue in full force and
effect and the same are hereby ratified and confirmed.
Borrower: Silicon:
NATURAL GAS VEHICLE SYSTEMS, SILICON VALLEY BANK
INC.
By /s/[ILLEGIBLE] By /s/[ILLEGIBLE]
------------------------------- -------------------------
President or Vice President Title AVP
----------------------
By /s/Xxxxx Xxxxx
-------------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: April 3, 1995
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Amended and Restated Loan and Security Agreement between
them, dated October 12, 1994 (the "Loan Agreement"), as follows, effective as of
the date hereof. (Capitalized terms used but not defined in this Amendment,
shall have the meanings set forth in the Loan Agreement.)
1. Amended Maturity Date. Section 5.1 of the Schedule to Loan Agreement is
hereby deleted and replaced with the following:
"Maturity Date
(Section 5.1): The earlier of (i) May 31, 1995 or (ii) the Loan
Termination Date."
2. No Waiver, Etc. Silicon received a Notice of Attachment (the
"Attachment") regarding the Borrower's bank accounts at Silicon on March 30,
1995. As you know, Section 6.1 (f) of the Loan Agreement states that any "levy,
assessment, attachment, seizure, lien or encumbrance [which] is made on all or
any part of the Collateral which is not cured within 10 days after the
occurrence of the same" constitutes an Event of Default. The willingness of
Silicon to extend the Maturity Date as set forth herein does not in any manner
whatsoever waive, diminish or otherwise affect any of its rights and remedies
relating to the Event of Default arising if the Borrower fails to cure the
Attachment within 10 days of the occurrence of the same.
3. Fee. Borrower shall concurrently pay to Silicon a facility fee in the
amount of $1,000, which shall be in addition to all interest and all other fees
payable to Silicon and shall be non-refundable.
4. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations and agreements of the parties with
respect to the subject matter hereof and supersede all prior discussions,
representations, agreements and understandings between the
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Certified Resolution
Borrower: Natural Gas Vehicle Systems, Inc., a
corporation organized under the laws of
the State of Delaware
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: October 12, 1994
I, the undersigned, Secretary or Assistant Secretary of the above-named
borrower, a corporation organized under the laws of the state set forth above,
do hereby certify that the following is a full, true and correct copy of
resolutions duly and regularly adopted by the Board of Directors of said
corporation as required by law, and by the by-laws of said corporation, and that
said resolutions are still in full force and effect and have not been in any way
modified, repealed, rescinded, amended or revoked.
RESOLVED, that this corporation borrow from Silicon Valley Bank
("Silicon"), from time to time, such sum or sums of money as, in the
judgment of the officer or officers hereinafter authorized hereby, this
corporation may require.
RESOLVED FURTHER, that any officer of this corporation be, and he or she is
hereby authorized, directed and empowered, in the name of this corporation,
to execute and deliver to Silicon, and Silicon is requested to accept, the
loan agreements, security agreements, notes, financing statements, and
other documents and instruments providing for such loans and evidencing
and/or securing such loans, with interest thereon, and said authorized
officers are authorized from time to time to execute renewals, extensions
and/or amendments of said loan agreements, security agreements, and other
documents and instruments.
RESOLVED FURTHER, that said authorized officers be and they are hereby
authorized, directed and empowered, as security for any and all
indebtedness of this corporation to Silicon, whether arising pursuant to
this resolution or otherwise, to grant, transfer, pledge, mortgage, assign,
or otherwise hypothecate to Silicon, or deed in trust for its benefit, any
property of any and every kind, belonging to this corporation, including,
but not limited to, any and all real property, accounts, inventory,
equipment, general intangibles, instruments, documents, chattel paper,
notes, money, deposit accounts, furniture, fixtures, goods, and other
property of every kind, and to execute and deliver to Silicon any and all
grants, transfers, trust receipts, loan or credit agreements, pledge
agreements, mortgages, deeds of trust, financing statements, security
agreements and other hypothecation agreements, which said instruments and
the note or notes and other instruments referred to in the preceding
paragraph may contain such provisions, covenants, recitals and agreements
as Silicon may require and said authorized officers may approve, and the
execution thereof by said authorized officers shall be conclusive evidence
of such approval.
RESOLVED FURTHER, that Silicon may conclusively rely upon a certified copy
of these resolutions and a certificate of the Secretary or Ass't Secretary
of this corporation as to the officers of this corporation and their
offices and signatures, and continue to conclusively rely on such certified
copy of these resolutions and said certificate for all past, present and
future transactions until written notice of any change hereto or thereto is
given to Silicon by this corporation by certified mail, return receipt
requested.
Silicon Valley Bank Certified Resolution
--------------------------------------------------------------------------------
The undersigned further hereby certifies that the following persons are the
duly elected and acting officers of the corporation named above as borrower and
that the following are their actual signatures:
NAMES OFFICE(S) ACTUAL SIGNATURES
Xxxxxx X. Xxxxxx Chairman & President x /s/ Xxxxxx X. Xxxxxx
--------------------- ---------------------------- -----------------------
_____________________ ____________________________ x_______________________
_____________________ ____________________________ x_______________________
_____________________ ____________________________ x_______________________
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or Assistant
Secretary on the date set forth above.
/s/ Xxxxx X. Xxxxxxx
-------------------------
Assistant Secretary
--------------------------------------------------------------------------------
Consent
The undersigned, subordinating creditors, acknowledge that their consent to
the foregoing Amendment is not required, but the undersigned nevertheless do
hereby consent to the foregoing Amendment and to the documents and agreements
referred to therein and to all future modifications and amendments thereto, and
to any and all other present and future documents and agreements between or
among the foregoing parties. Nothing herein shall in any way limit any of the
terms or provisions of the subordination agreements, executed by the undersigned
in favor of Silicon, all of which are hereby ratified and affirmed and shall
continue in full force and effect.
Caithness/NCF Company, a California CNG Cylinder Corporation, a California
joint venture corporation
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
----------------------------------- ---------------------------------------
Title: Chairman Title: Chairman
Caithness Corporation
By [ILLEGIBLE]
-----------------------------------
Title: V.P. & CONTROLLER
-1-
--------------------------------------------------------------------------------
Consent
The undersigned, subordinating creditor, acknowledges that its consent to
the foregoing Amendment is not required, but the undersigned nevertheless does
hereby consent to the foregoing Amendment and to the documents and agreements
referred to therein and to all future modifications and amendments, thereto, and
to any and all other present and future documents and agreements between or
among the foregoing parties. Nothing herein shall in any way limit any of the
terms or provisions of the subordination agreements executed by the undersigned
in favor of Silicon all of which are hereby ratified and affirmed and shall
continue in full force and effect.
AMOCO OIL COMPANY
By [ILLEGIBLE]
-----------------------------------------
Title: Manager - Alternative Transportation [ILLEGIBLE]
-1-
--------------------------------------------------------------------------------
[Logo] Silicon Valley Bank
Schedule to Amended and Restated
Loan and Security Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: October 12, 1994
Credit Limit (Section 1.1): An amount not to exceed the lesser of: (i)
$245,000; or (ii) 98% of the face amount of
an outstanding letter of credit issued by the
Bank of New York, with Caithness Composites,
Inc. as account party, and Silicon as
beneficiary, which Letter of Credit shall be
acceptable to Silicon in its discretion (such
letter of credit is referred to as the
"Letter of Credit"). No Loans shall be made
on and after the date that is thirty (30)
days prior to the expiration date of the
Letter of Credit (such date that is 30 days
prior to such expiration date is referred to
as the "Loan Termination Date").
Interest Rate (Section 1.2): A rate equal to the "Prime Rate" in effect
from time too time.
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.
Loan Origination Fee
(Section 1.3): $1,000.
Maturity Date
(Section 5.1): The earlier of (i) December 31, 1994 or (ii)
the Loan Termination Date.
Prior Names of Borrower
(Section 3.2): None
Trade Names of Borrower
(Section 3.2): NGV Systems Inc., CNG Cylinder Company, NGV
Systems Company
Other Locations and Addresses
(Section 3.3): 0000 Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxxxxxx 00000 0000 Xxxxxxx 000 Xxxx,
Xxxxxx, Xxxxx 00000
Silicon Valley Bank Schedule to Amended and Restated Loan Agreement
--------------------------------------------------------------------------------
Material Adverse Litigation
(Section 3.10): None
Negative Covenants-Exceptions
(Section 4.6): Without Silicon's prior written consent,
Borrower may do the following, provided that,
after giving effect thereto, no Event of
Default has occurred and no event has
occurred which, with notice or passage of
time or both, would constitute an Event of
Default, and provided that the following are
done in compliance with all applicable laws,
rules and regulations: (i) repurchase shares
of Borrower's stock pursuant to any employee
stock purchase or benefit plan, provided that
the total amount paid by Borrower for such
stock does not exceed $100,000 in any fiscal
year; and (ii) guarantee obligations of, and
make loans to, Borrower's wholly-owned
subsidiary, NGV Development Co., Inc.
("Subsidiary").
Financial Covenants
(Section 4.1): None.
Other Covenants
(Section 4.1): Borrower shall at all times comply with all
of the following additional covenants:
1. Banking Relationship. Borrower shall at
all times maintain its primary banking
relationship with Silicon.
2. Indebtedness. Without limiting any of the
foregoing terms or provisions of this
Agreement, Borrower shall not in the future
incur indebtedness for borrowed money, except
for (i) indebtedness to Silicon, and (ii)
indebtedness incurred in the future for the
purchase price of or lease of equipment in an
aggregate amount not exceeding $1,000,000 at
any time outstanding.
3. Stock Pledge. Borrower shall maintain in
effect the Pledge Agreement executed and
delivered to Silicon in connection with the
Original Loan Agreement, and Borrower shall
cause said Pledge Agreement to continue in
full force and effect at all times during the
term of this Agreement with respect to 100%
of the outstanding stock of the Subsidiary
now outstanding or hereafter issued and 100%
of all options and warrants to acquire stock
of the Subsidiary hereafter issued. Borrower
represents and warrants that there are no
outstanding options or warrants to acquire
stock of the Subsidiary.
4. Warrant. Borrower shall maintain in full
force and effect the warrant agreement and
related documents executed and delivered by
Borrower to Silicon in connection with the
Original Loan Agreement.
5. Subordination. Borrower shall cause to
remain in effect at all times during the term
of this Agreement the subordination
agreements of Caithness/NCF and CNG Cylinder
Corp. executed and delivered in connection
with the Original Loan Agreement, and the
Intercreditor Agreement dated March 4, 1993
executed and delivered by Amoco Oil Company
in favor of Silicon.
2
Silicon Valley Bank Schedule to Amended and Restated Loan Agreement
--------------------------------------------------------------------------------
6. Predecessor Partnership. Borrower
represents and warrants to Silicon that all
of the assets and liabilities of CNG Cylinder
Company of North America, L.P. have been duly
transferred to the Borrower, and that such
transfer was in compliance with all
applicable laws, rules and regulations.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
President
By /s/ Xxxxx X. Xxxxxxx
------------------------------------
Ass't Secretary
Silicon:
SILICON VALLEY BANK
By [ILLEGIBLE]
------------------------------------
Title [ILLEGIBLE]
---------------------------------
3
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[Logo] Silicon Valley Bank
Amended and Restated Loan and
Security Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: October 12, 1994
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is entered into on the
above date between SILICON VALLEY BANK ("Silicon"), whose address is 0000
Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 and the borrower named above
(the "Borrower"), whose chief executive office is located at the above address
("Borrower's Address"). This Agreement amends and restates in its entirety the
Loan and Security Agreement dated June 2, 1992, as amended by that Amendment to
Loan Agreement dated September 29, 1992, by that letter agreement dated October
30, 1992, by that letter agreement dated November 19, 1992, by that letter
agreement dated December 15, 1992, by that Amendment to Loan Agreement dated
March 29, 1993, by that Amendment to Loan Agreement dated July 22, 1993, by that
Amendment to Loan Agreement dated October 13, 1993, by that Amendment to Loan
Agreement dated June 1, 1994, and as such agreement has otherwise been amended
from time to time (collectively referred to as the "Original Loan Agreement").
1. LOANS
1.1 Loans. Silicon, in its discretion, will make loans to the Borrower (the
"Loans") in amounts determined by Silicon in its discretion up to the amount
(the "Credit Limit") shown on the Schedule to this Agreement (the "Schedule").
The Borrower is responsible for monitoring the total amount of Loans and other
Obligations outstanding from time to time, and Borrower shall not permit the
same, at any time, to exceed the Credit Limit. If at any time the total of all
outstanding Loans and all other Obligations exceeds the Credit Limit, the
Borrower shall immediately pay the amount of the excess to Silicon, without
notice of demand. *
* The loan balance under the Original Loan Agreement shall constitute the
initial loan balance hereunder.
1.2 Interest. All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule hereto. Interest shall be payable
monthly, on the due date shown on the monthly billing from Silicon to the
Borrower.
1.3 Fees. The Borrower shall pay to Silicon a loan origination fee in the
amount shown on the Schedule hereto concurrently herewith. This fee is in
addition to all interest and other sums payable to Silicon and is not
refundable.
2. GRANT OF SECURITY INTEREST.
2.1 Obligations. The term "Obligations" as used in this Agreement means the
following: the obligation to pay all Loans and all interest thereon when due,
and to pay and perform when due all other present and future indebtedness,
liabilities, obligations, guarantees, covenants, agreements, warranties and
representations of the Borrower to Silicon, whether joint or several, monetary
or non-monetary, and whether created pursuant to this Agreement or any other
present or future agreement or otherwise. Silicon may, in its discretion,
require that Borrower pay monetary Obligations in cash to Silicon, or charge
them to Borrower's Loan account, in which event they will bear interest at the
same rate applicable to the Loans.
2.2 Collateral. As security for all Obligations, the Borrower hereby grants
Silicon a continuing security interest in all of the Borrower's interest in the
types of property described below, whether now owned or hereafter acquired, and
wherever located (collectively, the "Collateral"): (a) all accounts, contract
rights, chattel, paper, letters of credit, documents, securities, money, and
instruments, and all other obligations now or in the future owing to the
Borrower; (b) All inventory, goods,
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
merchandise, materials, raw materials, work in process, finished goods, farm
products, advertising, packaging and shipping materials, supplies, and all other
tangible personal property which is held for sale or lease or furnished under
contracts of service or consumed in the Borrower's business, and all warehouse
receipts and other documents; and (c) All equipment, including without
limitation all machinery, fixtures, trade fixtures, vehicles, furnishings,
furniture, materials, tools, machine tools, office equipment, computers and
peripheral devices, appliances, apparatus, parts, dies, and jigs; (d) All
general intangibles including, but not limited to, deposit accounts, goodwill,
names, trade names, trademarks and the goodwill of the business symbolized
thereby, trade secrets, drawings, blueprints, customer lists, patents, patent
applications, copyrights, security deposits, loan commitment fees, federal,
state and local tax refunds and claims, all rights in all litigation presently
or hereafter pending for any cause or claim (whether in contract, tort or
otherwise), and all judgments now or hereafter arising therefrom, all claims of
Borrower against Silicon, all rights to purchase or sell real or personal
property, all rights as a licensor or licensee of any kind, all royalties,
licenses, processes, telephone numbers, proprietary information, purchase
orders, and all insurance policies and claims (including without limitation
credit, liability, property and other insurance), and all other rights,
privileges and franchises of every kind; (e) All books and records, whether
stored on computers or otherwise maintained; and (f) All substitutions,
additions and accessions to any of the foregoing, and all products, proceeds and
insurance proceeds of the foregoing, and all guaranties of and security for the
foregoing; and all books and records relating to any of the foregoing. Silicon's
security interest in any present or future technology (including patents, trade
secrets, and other technology) shall be subject to any licenses or rights now or
in the future granted by the Borrower to any third parties in the ordinary
course of Borrower's business; provided that if the Borrower proposes to sell,
license or grant any other rights with respect to any technology in a
transaction that, in substance, conveys a major part of the economic value of
that technology, Silicon shall first be requested to release its security
interest in the same, and Silicon may withhold such release in its direction.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
The Borrower represents and warrants to Silicon as follows, and the
Borrower covenants, that the following representations will continue to be true,
and that the Borrower will comply with all of the following covenants:
3.1 Corporate Existence and Authority. The 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 Borrower is and
will continue to be qualified and licensed to do business in all jurisdictions
in which any failure to do so would have a material adverse effect on the
Borrower. The execution, delivery and performance by the Borrower of this
Agreement, and all other documents contemplated hereby have been duly and
validly authorized, are enforceable against the Borrower in accordance with
their terms, 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 the
Borrower.
3.2 Name; Trade Names and Styles. The name of the Borrower set forth in the
heading to this Agreement is its correct name. Listed on the Schedule hereto are
all prior names of the Borrower and all of Borrower's present and prior trade
names. The Borrower shall give Silicon 15 days' prior written notice before
changing its name or doing business under any other name. The Borrower has
complied and will in the future comply, with all laws relating to the conduct of
business under a fictitious business name.
3.3 Place of Business; Location of Collateral. The address set forth in the
heading to this Agreement is the Borrower's chief executive office. In addition,
the Borrower has places of business and Collateral is located only at the
locations set forth on the Schedule to this Agreement. The Borrower will give
Silicon at least 15 days prior written notice before changing its chief
executive office or locating the Collateral at any other location.
3.4 Title to Collateral; Permitted Liens. The Borrower is now, and will at
all times in the future be, the sole owner of all the Collateral, except for
items of equipment which are leased by the Borrower. The Collateral now is and
will remain free and clear of any and all liens, charges, security interests,
encumbrances and adverse claims, except for the following ("Permitted Liens"):
(i) purchase money security interests in specific items of equipment; (ii)
leases of specific items of equipment; (iii) liens for taxes not yet payable;
(iv) additional security interests and liens consented to in writing by Silicon
in its sole discretion, which consent shall not be unreasonably withheld; and
(v) security interests being terminated substantially concurrently with this
Agreement. Silicon will have the right to require, as a condition to its consent
under subparagraph (iv) above, that the holder of the additional security
interest or lien sign an Intercreditor agreement on Silicon's then standard
form, acknowledge that the security interest is subordinate to the security
interest in favor of Silicon, and agree to give written notice of any default to
Silicon at least 60 days prior to taking any action to enforce its subordinate
security interest, and that Borrower agree that any unsecured default in any
obligation secured by the subordinate security interest shall also constitute an
Event of Default under this Agreement. Silicon now has, and will continue to
have, a perfected and enforceable security interest in all of the Collateral,
subject only to the Permitted Liens, and the Borrower will at all times defend
Silicon and the Collateral against all claims of others. None of the Collateral
now is or will be affixed to any real property in such a manner, or with such
intent, as to become a fixture.
3.5 Maintenance of Collateral. The Borrower will maintain the
Collateral in good working condition, and the Borrower will not use
the Collateral for any unlawful
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
purpose. The Borrower will immediately advise Silicon in writing of any material
loss or damage to the Collateral.
3.6 Books and Records. The Borrower has maintained and will maintain at the
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with generally accepted accounting principles.
3.7 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 and now and in the future will
completely and accurately reflect the financial condition of the Borrower, at
the times and for the periods therein stated. Since the last date covered by any
such statement, there has been no material adverse change in the financial
condition or business of the Borrower. The Borrower is now and will continue to
be solvent. The Borrower will provide Silicon: (i) within 30 days after the end
of each quarter, a quarterly financial statement prepared by the Borrower; and
(ii) within 120 days following the end of the Borrower's fiscal year, complete
annual financial statements, certified by independent certified public
accountants acceptable to Silicon.
3.8 Tax Returns and Payments; Pensions Contributions. The Borrower has
timely filed, and will timely file, all tax returns and reports required by
foreign, federal, state and local law, and the Borrower has timely paid, and
will timely pay, all foreign, federal, state and local taxes, assessments,
deposits and contributions now or in the future owed by the Borrower. The
Borrower may, however, defer payment off any contested taxes, provided that the
Borrower (i) in good faith contests the Borrower's obligation to pay the taxes
by appropriate proceedings promptly and diligently instituted and conducted,
(ii) notifies Silicon in writing of the commencement of, and any material
development in, the proceedings, and (iii) posts bonds or takes any other steps
required to keep the contested taxes from becoming a lien upon any of the
Collateral. The Borrower is unaware of any claims or adjustments proposed for
any of the Borrower's prior tax years which could result in additional taxes
becoming due and payable by the Borrower. The Borrower has paid, and shall
continue to pay all amounts necessary to fund all present and future pension,
profit sharing and deferred compensation plans in accordance with their terms,
and the Borrower has not and will not withdraw from participation in, permit
partial or complete termination of, or permit the occurrence of any other event
with respect to, any such plan which could result in any liability of the
Borrower, including, without limitation, any liability to the Pension Benefit
Guaranty Corporation or its successors or any other governmental agency.
3.9 Compliance with Law. The Borrower has complied, and will comply, in all
material respects, with all provisions of all foreign, federal, state and local
laws and regulations relating to the Borrower, including, but not limited to,
those relating to the Borrower's ownership of real or personal property, conduct
and licensing of the Borrower's business, and environmental matters.
3.10 Litigation. Except as disclosed in the schedule, there is no claim,
suit, litigation, proceeding or investigation pending or (to best of the
Borrower's knowledge) threatened by or against or affecting the Borrower in any
court or before any governmental agency (or any basis therefor known to the
Borrower) which may result, either separately or in the aggregate, in any
material adverse change in the financial condition or business of the Borrower,
or in any material impairment in the ability of the Borrower to carry on its
business in substantially the same manner as it is now being conducted. The
Borrower will promptly inform Silicon in writing of any claim, proceeding,
litigation or investigation in the future threatened or instituted by or against
the Borrower involving amounts in excess of $250,000.
3.11 Use of Proceeds. All proceeds of all Loans shall be used solely for
lawful business purposes.
4. ADDITIONAL DUTIES OF THE BORROWER.
4.1 Financial and Other Covenants. The Borrower shall at all times comply
with the financial and other covenants set forth in the Schedule to this
Agreement.
4.2 Overadvance; Proceeds of Accounts. If for any reason the total of all
outstanding Loans and all other Obligations exceeds the Credit Limit, without
limiting Silicon's other remedies, and whether or not Silicon declares an Event
of Default, Borrower shall remit to Silicon all checks and other proceeds of
Borrower's accounts and general intangibles, in the same form as received by
Borrower, within one day after Borrower's receipt of the same, to be applied to
the Obligations in such order as Silicon shall determine in its discretion.
4.3 Insurance. The Borrower shall, at all times insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to Silicon, in such form and amounts as Silicon
may reasonably require. All such insurance policies shall name Silicon as an
additional loss payee, and shall contain a lenders loss payee endorsement in
form reasonably acceptable to Silicon. Upon receipt of the proceeds of any such
insurance, Silicon shall apply such proceeds in reduction of the Obligations as
Silicon shall determine in its sole and absolute discretion, except that,
provided no Event of Default has occurred, Silicon shall release to the Borrower
insurance proceeds with respect to equipment totaling less than $100,000, which
shall be utilized by the Borrower for the replacement of the equipment with
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
respect to which the insurance proceeds were paid. Silicon may require
reasonable assurance that the insurance proceeds so released will be so used. If
the Borrower fails to provide or pay for any insurance, Silicon may, but is not
obligated to, obtain the same at the Borrower's expense. The Borrower shall
promptly deliver to Silicon copies of all reports made to insurance companies.
4.4 Reports. The Borrower shall provide Silicon with such written reports
with respect to the Borrower (including without limitation budgets, sales
projections, operating plans and other financial documentation), as Silicon
shall from time to time reasonably specify.
4.5 Access to Collateral, Books and Records. At all reasonable times, and
upon one business day notice, Silicon, or its agents, shall have the right to
inspect the Collateral, and the right to audit and copy the Borrower's
accounting books and records and Borrower's books and records relating to the
Collateral. Silicon shall take reasonable steps to keep confidential all
information obtained in any such inspection or audit, but Silicon shall have the
right to disclose any such information to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. The foregoing
audits shall be at Silicon's expense. Notwithstanding the foregoing, after the
occurrence of an Event of Default all audits shall be at the Borrower's expense.
4.6 Negative Covenants. Except as may be permitted in the Schedule hereto,
the Borrower shall not, without Silicon's prior written consent, do any of the
following: (i) merge or consolidate with another corporation, except that the
Borrower may merge or consolidate with another corporation if the Borrower is
the surviving corporation in the merger and the aggregate value of the assets
acquired in the merger do no exceed 25% of Borrower's Tangible Net Worth (as
defined in the Schedule to the Original Loan Agreement) as of the end of the
month prior to the effective date of the merger, and the assets of the
corporation acquired in the merger are not subject to any liens or encumbrances,
except Permitted Liens; (ii) acquire any assets outside the ordinary course of
business for an aggregate purchase price exceeding 25% of Borrower's Tangible
Net Worth (as defined in the Schedule to the Original Loan Agreement) as of the
end of the month prior to the effective date of the acquisition; (iii) enter
into any other transaction outside the ordinary course of business (except as
permitted by the other provisions of this Section); (iv) sell or transfer any
Collateral, except for the sale of finished inventory in the ordinary course of
the Borrower's business, and except for the sale of obsolete or unneeded
equipment in the ordinary course of business; (v) make any loans of any money or
any other assets; (vi) incur any debts, outside the ordinary course of business,
which would have a material, adverse effect on the Borrower or on the prospect
of repayment of the Obligations; (vii) guarantee or otherwise become liable with
respect to the obligations of another party or entity; (viii) pay or declare any
dividends on the Borrower's stock (except for dividends payable solely in stock
of the Borrower); (ix) redeem, retire, purchase or otherwise acquire, directly
or indirectly, any of the Borrower's stock; (x) make any change in the
Borrower's capital structure which has a material adverse effect on the Borrower
or on the prospect of repayment of the Obligations; or (xi) dissolve or elect to
dissolve. Transactions permitted by the foregoing provisions of this Section are
only permitted if no Event of Default and no event which (with notice or passage
of time or both) would constitute an Event of Default would occur as a result of
such transaction.
4.7 Litigation Cooperation. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or in any manner
relating to the Borrower, the Borrower shall, without expense to Silicon, make
available the Borrower and its officers, employees and agents and the Borrower's
books and records to the extent that Silicon may deem them reasonably necessary
in order to prosecute or defend any such suit or proceeding.
4.8 Verification Silicon may, from time to time, following prior
notification to Borrower, verify directly with the respective account debtors
the validity, amount and other matters relating to the Borrower's accounts, by
means of mail, telephone or otherwise, either in the name of the Borrower or
Silicon or such other name as Silicon may reasonably choose, provided that no
prior notification to Borrower shall be required following an Event of Default.
4.9 Execute Additional Documentation. The Borrower agrees, at its expense,
on request by Silicon, to execute all documents in form satisfactory to Silicon,
as Silicon may deem reasonably necessary or useful in order to perfect and
maintain Silicon's perfected security interest in the Collateral, and in order
to fully consummate all of the transactions contemplated by this Agreement.
5. TERM
5.1 Maturity Date. This Agreement shall continue in effect until the
maturity date set forth on the Schedule hereto (the "Maturity Date").
5.2 Early Termination. This Agreement may be terminated, without penalty,
prior to the Maturity Date as follows: (i) by the 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 an Event of Default, without
notice, effective immediately.
5.3 Payment of Obligations. On the Maturity Date or on any earlier
effective date of termination, the Borrower shall pay and perform in full all
Obligations, whether evidenced by installment notes or otherwise, and whether or
not all or any part of such Obligations are otherwise then due and payable.
Without limiting the generality of the foregoing, if on the Maturity Date, or on
any earlier
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
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effective date of termination, there are any outstanding letters of credit
issued by Silicon or issued by another institution based upon an application,
guarantee, indemnity or similar agreement on the part of Silicon, then on such
date Borrower shall provide to Silicon cash collateral in an amount equal to the
face amount of all such letters of credit plus all interest, fees and cost due
or to become due in connection therewith, to secure all of the Obligations
relating to said letters of credit, pursuant to Silicon's then standard from
cash pledge agreement. Notwithstanding any termination of this Agreement, all of
Silicon's security interests in all of the Collateral and all of the terms and
provisions of this Agreement shall continue in full force and effect until all
Obligations have been paid and performed in full; provided that, without
limiting the fact that Loans are discretionary on the part of Silicon, Silicon
may, in its sole discretion, refuse to make any further Loans after termination.
No termination shall in any way affect or impair any right or remedy of Silicon,
nor shall any such termination relieve the Borrower of any Obligation to
Silicon, until all of the Obligations have been paid and performed in full. Upon
payment and performance in full of all the Obligations, Silicon shall promptly
deliver to the Borrower termination statements, requests for reconveyances and
such other documents as may be required to fully terminate any of Silicon's
security interests.
6. EVENTS OF DEFAULT AND REMEDIES
6.1 Events of Default. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and the Borrower shall
give Silicon immediate written notice thereof: (a) Any warranty, representation,
statement, report or certificate made or delivered to Silicon by the Borrower or
any of the Borrower's officers, employees or agents, now or in the future, shall
be untrue or misleading in any material respect; or (b) the Borrower shall fail
to pay when due any Loan or any interest thereon or any other monetary
Obligation; or (c) the total Loans and other Obligations outstanding at any time
exceed the Credit Limit; or (d) the Borrower shall fail to comply with any of
the financial covenants set forth in the Schedule or shall fail to perform any
other non-monetary Obligation which by its nature cannot be cured; or (e) the
Borrower shall fail to pay or perform any other non-monetary Obligation, which
failure is not cured within 5 business days after the date due; or (f) Any levy,
assessment, attachment, seizure, lien or encumbrance is made on all or any part
of the Collateral which is not cured within 10 days after the occurrence of the
same; or (g) Dissolution, termination of existence, insolvency or business
failure of the 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 the 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 (h) the commencement of any proceeding against the Borrower or any guarantor
of any of the Obligations 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, which is not cured by the
dismissal thereof within 30 days after the date commenced; (i) revocation or
termination of, or limitation of liability upon, any guaranty of the
Obligations; or commencement of proceedings by any guarantor of any of the
Obligations under any bankruptcy or insolvency law; or (j) the Borrower makes
any payment on account of any indebtedness or obligation which has been
subordinated to the Obligations or if any person who has subordinated such
indebtedness or obligations terminates or in any way limits his subordination
agreement; or (k) the Borrower shall generally not pay its debts as they become
due; or the Borrower shall conceal, remove or transfer any part of its property,
with intent to hinder, delay or defraud its creditors, or make or suffer any
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law. Silicon may cease making any Loans
hereunder during any of the above cure periods, and thereafter if an Event of
Default has occurred.
6.2 Remedies. Upon the occurrence of any Event of Default, and at any time
thereafter, Silicon, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by the Borrower), may do any one or
more of the following: (a) Cease making Loans or otherwise extending credit to
the Borrower under this Agreement or any other document or agreement; (b)
Accelerate and declare all or any part of the Obligations to be immediately due,
payable, and performable, notwithstanding any deferred or installment payments
allowed by any instrument evidencing or relating to any Obligation; (c) Take
possession of any or all of the Collateral wherever it may be found, and for
that purpose the Borrower hereby authorizes Silicon without judicial process to
enter onto any of the Borrower's premises without interference to search for,
take possession of, keep, store, or remove any of the Collateral, and remain on
the premises or cause a custodian to remain on the premises in exclusive control
thereof without charge for so long as Silicon deems it reasonably necessary in
order to complete the enforcement of its rights under this Agreement or any
other agreement; provided, however, that Silicon should seek to take possession
of any or all of the Collateral by Court process, the Borrower hereby
irrevocably waives: (i) any bond and any surety or security relating thereto
required by any statute, court rule or otherwise as an incident to such
possession; (ii) any demand for possession prior to the commencement of any suit
or action to recover possession thereof; and (iii) any requirement that Silicon
retain possession of and not dispose of any such Collateral until after trial or
final judgement; (d) Require the Borrower to assemble any or all of the
Collateral and make it available to Silicon at places designated by Silicon
which are reasonably convenient to Silicon and the Borrower, and to remove the
Collateral to such locations as Silicon may deem advisable; (e) Require Borrower
to deliver to Silicon, in kind, all checks and other payments received with
respect to all accounts and general intangibles, together with any necessary
indorsement, within one day after the
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
date received by the Borrower; (f) Complete the processing, manufacturing or
repair of any Collateral prior to a disposition thereof and, for such purpose
and for the purpose of removal, Silicon shall have the right to use the
Borrower's premises, vehicles, hoists, lifts, cranes, equipment and all other
property without charge; (g) Sell, lease or otherwise dispose of any of the
Collateral in its condition at the time Silicon obtains possession of it or
after further manufacturing, processing or repair at any one or more public
and/or private sales, in lots or in bulk, for cash, exchange or other property,
or on credit, and to adjourn any such sale from time to time without notice
other than oral announcement at the time scheduled for sale. Silicon shall have
the right to conduct such disposition on the Borrower's premises without charge,
for such time or times as Silicon deems reasonable, or on Silicon's premises, or
elsewhere and the Collateral need not be located at the place of disposition.
Silicon may directly or through any affiliated company purchase or lease any
Collateral at any such public disposition, and if permissible under applicable
law, at any private disposition. Any sale or other disposition of Collateral
shall not relieve the Borrower of any liability the Borrower may have if any
Collateral is defective as to title or physical condition or otherwise at the
time of sale; (h) Demand payment of, and collect any accounts and general
intangibles comprising Collateral and, in connection therewith, the Borrower
irrevocably authorize Silicon to endorse or sign the Borrower's name on all
collections, receipts, instruments and other documents, to take possession of
and open mail addressed to the Borrower and remove therefrom payments made with
respect to any item of the Collateral or proceeds thereof, and, in Silicon's
sole discretion, to grant extensions of time to pay, compromise claims and
settle accounts and the like for less than face value; (i) Offset against any
sums in any of Borrower's general, special or other deposit accounts with
Silicon; and (j) Demand and receive possession of any of the Borrower's federal
and state income tax returns and the books and records utilized in the
preparation thereof or referring thereto. All reasonable attorneys' fees,
expenses, costs, liabilities and obligations incurred by Silicon with respect to
the foregoing shall be added to and become part of the Obligations, shall be due
on demand, and shall bear interest at a rate equal to the highest interest rate
applicable to any of the Obligations. Without limiting any of Silicon's rights
and remedies, from and after the occurrence of any Event of Default, the
interest rate applicable to the Obligations shall be increased by an additional
four percent per annum.
6.3 Standards for Determining Commercial Reasonableness. The Borrower and
Silicon agree that a sale or other disposition (collectively, "sale") of any
Collateral which complies with the following standards will conclusively be
deemed to be commercially reasonable: (i) Notice of the sale is given to the
Borrower at least seven days prior to the sale, and, in the case of a public
sale, notice of the sale is published at least seven days before the sale in a
newspaper of general circulation in the county where the sale is to be
conducted; (ii) Notice of the sale describes the collateral in general,
non-specific terms; (iii) The sale is conducted at a place designated by
Silicon, with or without the Collateral being present; (iv) The sale commences
at any time between 8:00 a.m. and 6:00 p.m.; (v) Payment of the purchase price
in cash or by cashier's check or wire transfer is required; (vi) With respect to
any sale of any of the Collateral, Silicon may (but is not obligated to) direct
any prospective purchaser to ascertain directly from the Borrower any and all
information concerning the same. Silicon may employ other methods of noticing
and selling the Collateral, in its discretion, if they are commercially
reasonable.
6.4 Power of Attorney. Upon the occurrence of any Event of Default, without
limiting Silicon's other rights and remedies, the Borrower grants to Silicon an
irrevocable power of attorney coupled with an interest, authorizing and
permitting Silicon (acting through any of its employees, attorneys or agents) at
any time, at its option, but without obligation, with or without notice to the
Borrower, and at the Borrower's expense, to do any or all of the following, in
the Borrower's name or otherwise: (a) Execute on behalf of the Borrower any
documents that Silicon may, in its sole and absolute discretion, deem advisable
in order to perfect and maintain Silicon's security interest in the Collateral,
or in order to exercise a right of the Borrower or Silicon, or in order to fully
consummate all the transactions contemplated under this Agreement, and all other
present and future agreement; (b) Execute on behalf of the Borrower any document
exercising, transferring or assigning any option to purchase, sell or otherwise
dispose of or to lease (as lessor or lessee) any real or personal property which
is part of Silicon's Collateral or in which Silicon has an interest; (c) execute
on behalf of the Borrower any invoices relating to any account, any draft
against any account debtor and any notice to any account debtor, any proof of
claim in bankruptcy, any Notice of Lien, claim of mechanic's, materialman's or
other lien, or assignment or satisfaction of mechanic's, materialman's or other
lien; (d) Take control in any manner of any cash or non-cash items of payment or
proceeds of Collateral; endorse the name of the Borrower upon any instruments,
or documents, evidence of payment or Collateral that may come into Silicon's
possession; (e) Endorse all checks and other forms of remittances received by
Silicon; (f) Pay, contest or settle any lieu, charge, encumbrance, security
interest and adverse claim in or to any of the Collateral, or any judgment based
thereon, or otherwise take any action to terminate or discharge the same; (g)
Grant extensions of time to pay, compromise claims and settle accounts and
general intangibles for less than face value and execute all releases and other
documents in connection therewith; (h) Pay any sums required on account of the
Borrower's taxes or to secure the release of any liens therefor, or both; (i)
Settle and adjust, and give releases of, any insurance claim that relates to any
of the Collateral and obtain payment therefor; (j) Instruct any third party
having custody or control of any books or records belonging to, or relating to,
the Borrower to give Silicon the same rights of access and other rights with
respect thereto as Silicon has under this
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
Agreement; and (k) Take any action or pay any sum required of the Borrower
pursuant to this Agreement and any other present or future agreements. Silicon
shall exercise the foregoing powers in a commercially reasonable manner. Any and
all reasonable costs, expenses, liabilities, obligations and attorneys' fees
incurred by Silicon with respect to the foregoing shall be added to and become
part of the Obligations, shall be payable on demand, and shall bear interest at
a rate equal to the highest interest rate applicable to any of the Obligations.
In no event shall Silicon's rights under the foregoing power of attorney or any
of Silicon's other rights under this Agreement be deemed to indicate that
Silicon is in control of the business, management or properties of the Borrower.
6.5 Application of Proceeds. All proceeds realized as the result of any
sale of the Collateral shall be applied by Silicon first to the costs, expenses,
liabilities, obligations and attorneys' fees incurred by Silicon in the exercise
of its rights under this Agreement, second to the interest due upon any of the
Obligations, and third to the principle of the Obligations, in such order as
Silicon shall determine in its sole discretion. Any surplus shall be paid to the
Borrower or other persons legally entitled thereto; the Borrower shall remain
liable to Silicon for any deficiency. If, Silicon, in its sole discretion,
directly or indirectly enters into a deferred payment or other credit
transaction with any purchaser at any sale or other disposition of Collateral,
Silicon shall have the option, exercisable at any time, in its sole discretion,
of either reducing the Obligations by the principal amount of purchase price or
deferring the reduction of the Obligations until the actual receipt by Silicon
of the cash therefor.
6.6 Remedies Cumulative. In addition to the rights and remedies set forth
in this Agreement, Silicon shall have all the other rights and remedies accorded
a secured party under the California Uniform Commercial Code and under all other
applicable laws, and under any other instrument or agreement now or in the
future entered into between Silicon and the Borrower, and all of such rights and
remedies are cumulative and none is exclusive. Exercise or partial exercise by
Silicon of one or more of its rights or remedies shall not be deemed an
election, nor bar Silicon from subsequent exercise or partial exercise of any
other rights or remedies. The failure or delay of Silicon to exercise any rights
or remedies shall not operate as a waiver thereof, but all rights and remedies
shall continue in full force and effect until all of the Obligations have been
fully paid and performed.
7. GENERAL PROVISIONS.
7.1 Notices. All notices to be given under this Agreement shall be in
writing and shall be given either personally or by regular first-class mail, or
certified mail return receipt requested, addressed to Silicon or the Borrower at
the addresses shown in the heading to this Agreement, or at any other address
designated in writing by one party to the other party. All notices shall be
deemed to have been given upon delivery in thee case of notices personally
delivered to the Borrower or to Silicon, or at the expiration of two business
days following the deposit thereof in the United states mail, with postage
prepaid.
7.2 Severability. Should any provision of this agreement be held by any
court of competent jurisdiction to be void or unenforceable, such defect shall
not affect the remainder of this Agreement, which shall continue in full force
and effect.
7.3 Integration. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between the Borrower and Silicon and
supersede all prior and contemporaneous negotiations and oral representations
and agreements, all of which are merged and integrated in this Agreement. There
are no oral understandings, representations or agreements between the parties
which are not set forth in this Agreement or in other written agreements signed
by the parties in connection herewith.
7.4 Waivers. The failure of Silicon at any time or times to require the
Borrower to strictly comply with any of the provisions of this Agreement or any
other present or future agreement between the Borrower and Silicon shall not
waive or diminish any right of Silicon later to demand and receive strict
compliance therewith. Any waiver of any default shall not waive or affect any
other default, whether prior or subsequent thereto. None of the provisions of
this Agreement or any other agreement now or in the future executed by the
Borrower and delivered to Silicon shall be deemed to have been waived by any act
or knowledge of Silicon or its agents or employees, but only by a specific
written waiver signed by an officer of Silicon and delivered to the Borrower.
The Borrower waives demand, protest, notice of protest and notice of default or
dishonor, notice of payment and nonpayment, release, compromise, settlement,
extension or renewal of any commercial paper, instrument, account, general
intangible, document or guaranty at any time held by Silicon on which the
Borrower is or may in any way be liable, and notice of any action taken by
Silicon, unless expressly required by this Agreement.
7.5 No Liability for Ordinary Negligence. Neither Silicon, nor any of its
directors, officers, employees, agents, attorneys or any other person affiliated
with or representing Silicon shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by the
Borrower or any other party through the ordinary negligence of Silicon, or any
of its directors, officers, employees, agents, attorneys or any other person
affiliated with or representing Silicon.
7.6 Amendment. The terms and provisions of this Agreement may not be waived
or amended, except in a writing executed by the Borrower and a duly authorized
officer of Silicon.
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Silicon Valley Bank Amended and Restated Loan and Security Agreement
--------------------------------------------------------------------------------
7.7 Time of Essence. Time is of the essence in the performance by the
Borrower of each and every obligation under this Agreement.
7.8 Attorneys Fees and Costs. The Borrower shall reimburse Silicon for all
reasonable attorneys' fees and all filing, recording, search, title insurance,
appraisal, audit, and other reasonable costs incurred by Silicon, pursuant to,
or in connection with, or relating to this Agreement (whether or not a lawsuit
is filed) including, but not limited to, any reasonable attorneys' fees and
costs Silicon incurs in order to do the following: prepare and negotiate this
Agreement and the documents relating to this Agreement; obtain legal advice in
connection with this Agreement; enforce, or seek to enforce, any of its rights;
prosecute actions against, or defend actions by, account debtors; commence,
intervene in, or defend any action or proceeding; initiate any complaint to be
relieved of the automatic stay in bankruptcy; file or prosecute any probate
claim, bankruptcy claim, third-party claim, or other claim; examine, audit,
copy, and inspect any of the Collateral or any of the Borrower's books and
records; protect, obtain possession of, lease, dispose of, or otherwise enforce
Silicon's security interest in, the Collateral; and otherwise represent Silicon
in any litigation relating to the Borrower. In Satisfying Borrower's obligation
hereunder to reimburse Silicon for attorneys fees, Borrower may, for
convenience, issue checks directly to Silicon's attorneys, Levy, Small & Xxxxxx,
but Borrower acknowledges and agrees that Levy, Small & Xxxxxx is representing
only Silicon and not Borrower in connection with this Agreement. If either
Silicon or the Borrower files any lawsuit against the other predicated on a
breach of this Agreement, the prevailing party in such action shall be entitled
to recover its reasonable costs and attorneys' fees, including (but not limited
to) reasonable attorneys' fees and costs incurred in the enforcement of,
execution upon or defense of any order, decree, award or judgment. All
attorneys' fees and costs to which Silicon may be entitled pursuant to this
Paragraph shall immediately become part of the Borrower's Obligations, shall be
due on demand, and shall bear interest at a rate equal to the highest interest
rate applicable to any of the Obligations.
7.9 Benefit of Agreement. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective successors, assigns, heirs,
beneficiaries and representatives of the parties hereto; provided, however, that
the Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of Silicon, and any prohibited assignment
shall be void. No consent by Silicon to any assignment shall release the
Borrower from its liability for the Obligations.
7.10 Joint and Several Liability. If the Borrower consists of more than one
person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
7.11 Paragraph Headings; Construction. Paragraph headings are only used in
this Agreement for convenience. The Borrower acknowledges that the headings may
not describe completely the subject matter of the applicable paragraph, and the
headings shall not be used in any manner to construe, limit, define or interpret
any term or provision of this Agreement. This Agreement has been fully reviewed
and negotiated between the parties and no uncertainty or ambiguity in any term
or provision of this Agreement shall be construed strictly against Silicon or
the Borrower under any rule of construction or otherwise.
7.12 Mutual Waiver of Jury Trial. The 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 other present or future
instrument or agreement between Silicon and the Borrower, or any conduct, acts
or omissions of Silicon or the Borrower or any of their directors, officers,
employees, agents, attorneys or any other persons affiliated with Silicon or the
Borrower, in all of the foregoing cases, whether sounding in contract or tort or
otherwise.
7.13 Governing Law; Jurisdiction; Venue. This Agreement and all acts and
transactions hereunder and all rights and obligations of Silicon and the
Borrower shall be governed by, and in accordance with, the laws of the State of
California. Any undefined term used in this Agreement that is defined in the
California Uniform Commercial Code shall have the meaning assigned to that term
in the California Uniform Commercial Code. As a material part of the
consideration to Silicon to enter into this Agreement, the Borrower (i) agrees
that all actions and proceedings relating directly or indirectly hereto shall,
at Silicon's option, be litigated in courts located within California, and that
the exclusive venue therefor shall be Los Angeles County; (ii) consents to the
jurisdiction and venue of any such court and consents to service of process in
any such action or proceeding by personal delivery or any other method permitted
by law; and (iii) waives any and all rights the Borrower may have to object to
the jurisdiction of any such court, or to transfer or change the venue of any
such action or proceeding.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
President
By /s/ Xxxxx X. Xxxxxxx
------------------------------------
Ass't Secretary
Silicon:
SILICON VALLEY BANK
By [ILLEGIBLE]
------------------------------------
Title Vice President
---------------------------------
-8-
[Logo} Silicon Valley Bank
Amendment to Loan Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: September 29, 1992
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and the borrower named above (the "Borrower"). The Parties
agree to amend the Loan and Security Agreement between them, dated June 2, 1992
(the "Loan Agreement"), as follows, effective on the date hereof. (Capitalized
terms used but not defined in this Amendment, shall have the meanings set forth
in the Loan Agreement.)
1. Modification of Interest Rate. The section of the Schedule to Loan
Agreement entitled "Interest Rate (Section 1.2)" is hereby deleted and replaced
with the following:
"Interest Rate (Section 1.2):
Accounts Loans: A rate equal to the "Prime Rate" in effect
from time to time, plus 2% per annum, provided that the
interest rate in effect in each month shall not be less than
8.5% per annum, provided, however, until the Borrower raises
net cash proceeds from the issuance of new equity securities
of not less than $5,000,000 (and Silicon's review of the
results of such issuance of securities and Borrower's
financial condition is satisfactory to Silicon in its
discretion) or, Borrower complies with all financial
covenants as set forth in the Loan Agreement, the interest
rate applicable to Accounts Loans shall be equal to 12% per
annum.
Term Loan: 12% 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 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."
2. Modification of Maturity Date. The section of the Schedule to Loan
Agreement entitled "Maturity Date (Section 5.1)" is hereby deleted and replaced
with the following:
1
"Maturity Date
(Section 5.1): June 2, 1993. After said Maturity Date no further Accounts
Loans will be made, and on said Maturity Date all
Obligations (other than the Term Loan) shall be due and
payable.
The Term Loan shall be due and payable on or before October
28, 1992."
3. Addition of Tradename. The section of the Schedule to Loan Agreement
entitled "Trade Names of Borrower (Section 3.2)" is hereby amended by adding
thereto the following tradename: "NGV Technology Company." The Borrower agrees
to provide to Silicon UCC Financing Statement change forms reflecting the
addition of this tradename for all UCC filings that Silicon has made relating to
the Borrower.
4. Limited Forbearance Regarding Financial Covenants. Silicon hereby waives
the Borrower's compliance with the financial covenants set forth in the Loan
Agreement through October 28, 1992, provided, however, that such waiver does not
constitute a waiver of any other provision or term of the Loan Agreement or any
related document, nor an agreement to waive in the future this covenant or any
other provision or term of the Loan Agreement or any related document.
5. No Direct Advances to the Borrower, Etc. Until (a) Borrower raises net
proceeds from the issuance of new equity securities of not less than $5,000,000,
and Silicon's review of the results of such issuance of securities and
Borrower's financial condition is satisfactory to Silicon in its discretion or
(b) Borrower complies with all financial covenants as set forth in the Loan
Agreement, Borrower agrees that any and all Accounts Loans shall not be
disbursed directly to Borrower.
6. Existing Overadvances; Reduction of the Term Loan Through Accounts
Loans. As of the date hereof, the Borrower has Obligations outstanding under the
Accounts Loans facility as set forth in Section 1.1 of the Schedule to Loan
Agreement (the "Accounts Line") that exceed the stated limitations applicable
thereto ("Existing Overadvances"). Silicon agrees that the Existing Overadvances
need not be repaid immediately as provided for in Section 1.1 of the Loan
Agreement, provided, however, that the agreement of Silicon to refrain from
requiring the immediate repayment of the Existing Overadvances does not
constitute a waiver of any other provision or term of the Loan Agreement or any
related document, nor an agreement to waive in the future this requirement or
any other provision or term of the Loan Agreement or any related document. The
Existing Overadvances shall be reduced over time to the extent possible through
new sales by the Borrower and the resulting creation of new accounts.
Thereafter, once the Existing Overadvances have been eliminated, at all times
that availability exists under the Accounts Line and the Term Loan remains
outstanding, Borrower hereby authorizes Silicon (a) to make an advance under the
Accounts Loans facility to the extent of the availability thereunder at such
time, (b) to charge such advance to the Borrower's loan account with Silicon,
and (c) to apply the proceeds of all such advances to the reduction of the Term
Loan.
7. Other Covenants. Paragraph 2 of the section entitled "Other Covenants
and Provisions (Section 4.1)" of the Schedule to the Loan Agreement is hereby
deleted and replaced with the following paragraph 2 and a new paragraph 9 shall
be added to end of such section as set forth below:
"2. Additional Reporting Requirements. At all times the Borrower shall
provide the following reports and information in addition to all other
information and reporting requirements hereunder:
2.1 Transaction Reports. The Borrower shall submit a transaction
report, in such form as Silicon shall specify, for each deposit or advance
relating to the Borrower; such report shall include all relevant
attachments and supplementary documentation as Silicon shall request,
including, without limitation, the Borrower's sales and collections
2
journals. The Transaction Report must be submitted by facsimile to the San
Jose, California office of Silicon by 2 P.M. (PST) on the day of the
transaction. Credit for deposits will be given when Silicon has received
collected funds relating thereto on the business day following the deposit.
The address and telephone numbers for the San Jose, California office of
Silicon are: Silicon Valley Bank, Collateral Control Department, 0000 Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, (Telephone 000-000-0000, Attn:
Xxxxx Xxxxxxxx, Facsimile 408-954-0832) (such address or at any other
address that Silicon may direct, the "San Xxxx Address").
2.2 Borrowing Base Certificate. On a semi-monthly basis, the Borrower
shall provide to Silicon at the San Xxxx Address, a borrowing base
certificate, in such form as Silicon shall specify, and an aged listing of
Borrower's accounts receivable and accounts payable. Such certificate shall
be submitted within 2 days of month end relating to the month end period
and on the 17th of each month relating to the period ending on the 15th of
such month.
2.3 Compliance Certificate. The monthly compliance certificate
referred to in Section 3.7 of the Loan Agreement shall be delivered to
Silicon at both its San Xxxx Address and at its address in Newport Beach,
California as follows: Silicon Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 (Telephone 000-000-0000, Facsimile
714-252-0925), or at such other address as Silicon may direct."
......
9. Daily Collateral Control. Borrower shall have the privilege of
collecting Borrower's "accounts" (as defined in the California Uniform
Commercial Code) in trust for Silicon, at Borrower's sole expense, which
privilege may be revoked by Silicon at any time. All proceeds of all of
Borrower's accounts, of every kind, in whatever form received, shall be
held by the Borrower in trust for Silicon and shall be either (i) delivered
by the Borrower to Silicon in kind, in the same form as received, with any
necessary endorsements, within one business day after receipt, or (ii)
within one business day after receipt, deposited to a bank account
previously identified to Silicon, which has been established pursuant to
agreement which provides that all funds in such account are transferred to
Silicon on a daily basis, and in that event the Borrower; shall deliver
copies of all checks and other proceeds so deposited and a copy of the
deposit receipt to Silicon within one business day after such deposit.
Borrower shall have no right to, and agrees not to, comingle any of the
proceeds of the accounts with the Borrower's own funds, and the Borrower
agrees not to use, divert or withhold any such proceeds. The Borrower will,
upon request by Silicon and in such form and at such times as Silicon shall
request, give notice to the account debtors on the accounts of the
assignment of and the grant of a security interest in the accounts to
Silicon and that Silicon may itself give such notice at any time, without
notice to the Borrower, requiring such account debtors to pay the accounts
directly to Silicon, and in any such event, the Borrower's privilege of
collecting the accounts shall automatically be deemed revoked."
7. Warrants. The Borrower shall provide Silicon with five-year warrants to
purchase 16,000 shares of Common stock of the Borrower, at $5.00 per share, on
the terms and conditions in the Warrant to Purchase Stock and related documents
being executed concurrently herewith.
8. Facility Fee. The Borrower shall pay Silicon concurrently herewith a
facility fee of $2,000. Said facility fee shall be in addition to all interest
and other sums payable to Silicon, and shall not be refundable.
9. General Provisions. This Amendment, the Loan Agreement, any prior
written amendments to the Loan Agreement signed by Silicon and the Borrower, and
the other written documents and agreements between Silicon and the Borrower set
forth in full all of the representations
3
and agreements of the parties with respect to the subject matter hereof and
supersede all prior discussions, representations, agreements and understandings
between the parties with respect to the subject hereof. Except as herein
expressly amended, all of the terms and provisions of the Loan Agreement, and
all other documents and agreements between Silicon and the Borrower shall
continue in full force and effect and the same are hereby ratified and
confirmed.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
President
By /s/ [ILLEGIBLE] 9/29/92
------------------------------------
Secretary or Ass't Secretary
Silicon:
SILICON VALLEY BANK
By [ILLEGIBLE]
------------------------------------
Title Vice President
---------------------------------
Consent
The undersigned, subordinating creditors, acknowledge that their consent to
the foregoing Amendment is not required, but the undersigned nevertheless do
hereby consent to the foregoing Amendment and to the documents and agreements
referred to therein and to all future modifications and amendments thereto, and
to any and all other present and future documents and agreements between or
among the foregoing parties. Nothing herein shall in any way limit any of the
terms or provisions of the subordination agreements executed by the undersigned
in favor of Silicon, all of which are hereby ratified and affirmed and shall
continue in full force and effect.
Caithness/NCF Company, a California CNG Cylinder Co., a California
joint venture Partnership
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxx
-------------------------------- ----------------------------------
Title: Chairman Title: President
Caithness Corporation
By [ILLEGIBLE]
--------------------------------
Title: Chair 9/29/92
--------------------------------------------------------------------------------
Silicon Valley Bank
Registration Rights Agreement
Issuer: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx
Date: September 29, 1992
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of the above date by and
between SILICON VALLEY BANK ("Purchaser"), whose address is 0000 Xxxxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 and the above Company, whose address is set
forth above.
RECITALS
A. Concurrently with the execution of this Agreement, the Purchaser is
purchasing from the Company a Warrant to Purchase Stock (the "Warrant") pursuant
to which Purchaser has the right to acquire form the Company the Shares (as
defined in the Warrant).
B. By this Agreement, the Purchaser and the Company desire to set forth the
registration rights of the Shares all as provided herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration statement or document;
(b) The term "Registration Securities" means (i) the Shares (if Common
Stock) or all shares of Common Stock of the Company issuable or issued upon
conversion of the Shares and (ii) any Common Stock of company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, any stock referred to in (i).
(c) The terms "Holder" or "Holders" means the Purchaser or qualifying
transferees under subsection 1.8 hereof who hold Registrable Securities.
(d) The term "SEC" means the Securities and Exchange Commission.
1.2 Company Registration.
(a) Registration. If at any time or from time to time, the Company shall
determine to register any of its securities, for its own account or the account
of any of its shareholders, other than a registration on Form S-1 or S-8
relating solely to employee stock option or purchase plans, or a registration on
Form S-4 relating solely to an SEC Rule 145 transaction, or a registration on
any other form (other than Form X-0, X-0, X-0 or S-18, or their successor forms)
or any successor to such forms, which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale or Registrable Securities, the Company will:
(i) promptly give to each Holder written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other state securities
laws); and
(ii) include in such registration (and compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 30 days after receipt of such written notice from the
Company, by any Holder or Holders, except as set forth in subsection 1.2(b)
below.
(b) Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to subsection
1.2(a)(i). In such event the right of any Holder to registration pursuant to
this subsection 1.2 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with the
Company and the other shareholders distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the
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Silicon Valley Bank Registration Rights Agreements
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underwriter or underwriters selected for such underwriting by the Company.
1.3 Expenses of Registration. All expenses incurred in connection with any
registration, qualification or compliance pursuant to this Section 1 including
without limitation, all registration, filing and qualification fees, printing
expenses, fees and disbursements of counsel for the Company and expenses of any
special audits incidental to or required by such registration, shall be borne by
the Company except the Company shall not be required to pay underwriters' fees,
discounts or commissions relating to Registrable Securities. All expenses of any
registered offering not otherwise borne by the Company shall be borne pro rata
among the Holders participating in the offering and the Company.
1.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the company pursuant to this
Registration Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. Except as
otherwise provided in subsection 1.3, at its expense the Company will:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Security Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
1.5 Indemnification.
(a) The Company will indemnify each Holder of Registrable Securities and
each of its officers, directors and partners, and each person controlling such
Holder, with respect to which such registration qualification or compliance has
been effected pursuant to this Rights Agreement, and each underwriter, if any,
and each person who controls any underwriter of the Registrable Securities held
by or issuable to such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, or any violation or
alleged violation by the Company of the Securities Act, the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any state securities law applicable
to the Company or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any such state law and relating to action or inaction
required of the company in connection with any such registration, qualification
of compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, within a
reasonable amount of time after incurred for any reasonable legal and any other
expenses incurred in connection with investigating, defending or settling any
such claim, loss, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.5(a) shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability, or action
if such settlement is effected without consent of the Company (which consent
shall not be unreasonably withheld); and provided further, that the Company will
not be liable in any such case to the extent that any such claim, loss, damage
or liability arises out of or is based on any untrue statement or omission based
upon written information furnished to the Company by an instrument duly executed
by such Holder or underwriter specifically for use therein.
(b) Each Holder will, if Registrable Securities held by or issuable to such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company within the meaning of the Securities Act, and each other such
Holder, each of its officers, directors and partners and each person controlling
such Holder, against all claims, losses, expenses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering
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Silicon Valley Bank Registration Rights Agreements
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circular or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Company, such Holders,
such directors, officers, partners, persons or underwriters for any reasonable
legal or any other expenses incurred in connection with investigating, defending
or settling any such claim, loss, damage, liability or action, in each case to
the extent, but only to the extent, that such untrue statement (or alleged
untrue statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein; provided, however,
that the indemnity agreement contained in this subsection 1.5(b) shall not apply
to amounts paid in settlement of any such claim, loss, damage, liability or
action if such settlement is effected without the consent of the Holder (which
consent shall not be unreasonably withheld); and provided further, that the
total amount for which any Holder shall be liable under this subsection 1.5(b)
shall not in any event exceed the aggregate proceeds received by such Holder
from the sale of Registrable Securities held by such Holder in such
registration.
(c) Each party entitled to indemnification under this subsection 1.5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense; and provided further, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying of its
obligations hereunder, unless such failure resulted in prejudice to the
Indemnifying Party; and provided further, that an Indemnified Party (together
with all other Indemnified Parties which may be represented without conflict by
one counsel) shall have the right to retain one separate counsel, with the fees
and expenses to be paid by the Indemnifying Party, if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.6 Information by Holder. Any Holder or Holders of Registrable Securities
included in any registration shall promptly furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to herein.
1.7 Rule 144 Reporting. With a view to making available to Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees at all times to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, after 90 days after the effective date
of the first registration filed by the Company for an offering of its securities
to the general public;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements); and
(c) so long as a Holder owns any Registrable Securities, to furnish to such
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
90 days after the effective date of the first registration statement filed by
the company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the
Company as the Holder may reasonably request in complying with any rule or
regulation of the SEC allowing the Holder to sell any such securities without
registration.
1.8 Transfer of Registration Rights. Holders' rights to cause the Company
to register their securities and keep information available, granted to them by
the company under subsections 1.2 and 1.7 may be assigned to a transferee or
assignee of a Holder's Registrable Securities not sold to the public, provided,
that the Company is given written notice by such Holder at the time of or within
a reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned. The Company may prohibit the transfer of
any Holders' rights under this section 1.8 to any proposed transferee or
assignee who the Company reasonably believes is a competitor of the Company.
2. General.
2.1 Waivers and Amendments. With the written consent of the record or
beneficial holders of at least a majority of the Registrable Securities, the
obligations of the Company and the rights of the Holders of the Registrable
Securities under this agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities. Upon the effectuation of
each such waiver, consent, agreement of amendment or modification, the Company
shall promptly give written
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Silicon Valley Bank Registration Rights Agreements
--------------------------------------------------------------------------------
notice thereof to the record holders of the Registrable Securities who have not
previously consented thereto in writing. This Agreement or any provision hereof
may be changed, waived, discharged or terminated only by a changed, waived,
discharged or terminated only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this subsection 2.1.
2.2 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements between
California residents entered into and to be performed entirely within
California.
2.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.4 Entire Agreement. Except as set forth below, this Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 Notices. etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address as set forth in the heading
to this Agreement, or at such other address as such Holder shall have furnished
to the Company in writing, or (b) if to the Company, at the Company's address
set forth in the heading to this Agreement, or at such other address as the
Company shall have furnished to the Holder in writing.
2.6 Severability. In case any provision of this Agreement shall be invalid,
illegal, or unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement or any provision of the other Agreements
shall not in any way be affected or impaired thereby.
2.7 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not be considered
in construing this Agreement.
2.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
Company:
NATURAL GAS VEHICLE SYSTEMS, INC.
By [ILLEGIBLE]
-----------
President
By [ILLEGIBLE]
-----------
Secretary or Ass't Secretary
2/29/92
Purchaser:
SILICON VALLEY BANK
By [ILLEGIBLE]
-----------
Title [ILLEGIBLE]
-4-
THIS WARRANT AND THE SHARES ISSUABLE HEREUNDER HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR PURSUANT TO RULE 144 OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED.
-------------------------
WARRANT TO PURCHASE STOCK
Warrant to Purchase Issue Date: September 29, 1992
16,000 Shares of the Expiration Date: September 29, 1997
Common Stock of Initial Exercise Price: $5 per share
Natural Gas Vehicle Systems, Inc.
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other
good and valuable consideration, SILICON VALLEY BANK ("Holder") is entitled to
purchase the number of fully paid and non-assessable shares of the class of
securities (the "Shares") of the corporation (the "Company") at the initial
exercise price per Share (the "Warrant Price") all as set forth above and as
adjusted pursuant to Article 2 of this Warrant, subject to the provisions and
upon terms and conditions set forth of this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Holder may exercise this Warrant by delivering a
duly executed Notice of Exercise in substantially the form attached as Appendix
1 to the principal office of the company. Unless Holder is exercising the
conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon exercise
of this Warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant Section 1.4.
1.3 Alternative Stock Appreciation Right. At Holder's option, the Company
shall pay Holder the fair market value of the Shares issuable upon conversion of
this Warrant pursuant to Section 1.2 in cash in lieu of such Shares.
1.4 Fair Market Value. If the Shares are traded in a public market, the
fair market value of the Shares shall be the closing price of the Shares (or the
closing price of the Company's stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares are not traded in a public market, the
Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgment. The foregoing notwithstanding, if Holder advises
the Board of Directors in writing that Holder disagrees with such determination,
then the Company and Holder shall promptly agree upon a reputable investment
banking firm to undertake such valuation. If the valuation of such investment
banking firm is greater than that determined by the Board of Directors, then all
fees and expenses of such investment banking firm shall be paid by the Company.
In all other circumstances, such fees and expenses shall be paid by Holder.
1.5 Delivery of Certificate and New Warrant. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.6 Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the
case of mutilation, or surrender and cancellation of this Warrant, the Company
at its expense shall execute and deliver, in lieu of this Warrant, a new warrant
of like tenor.
1.7 Repurchase on Sale. Merger or Consolidation of the Company.
1.7.1. "Acquisition". For the purpose of this Warrant, "Acquisition" means
any sale, license, or other disposition of all or substantially all of the
assets or the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
1.7.2. Assumption of Warrant. If upon the closing of any Acquisition the
successor entity assumes the obligations of this Warrant, then this Warrant
shall be exercisable for the same securities, cash, and property as would be
payable for the Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for the
Acquisition and subsequent closing. The Warrant Price shall be adjusted
accordingly.
1.7.3. Nonassumption. If upon the closing of any Acquisition the successor
entity does not assume the obligations of this Warrant and Holder has not
otherwise exercised this Warrant in full, then the unexercised portion of this
Warrant shall be deemed to have been automatically converted pursuant to Section
1.2 and thereafter Holder shall participate in the acquisition on the same terms
as other holders of the same class of securities of the Company.
--------------------------------------------------------------------------------
[LOGO] Silicon Valley Bank
Antidilution Agreement
Issuer: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx
Date: September 29, 1992
THIS AGREEMENT is entered into as of the above date by and between SILICON
VALLEY BANK ("Purchaser"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000-0000, and the above Company, whose address is set forth above.
RECITALS
A. Concurrently with the execution of this Antidilution Agreement, the
Purchaser is purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which Purchaser has the right to acquire from the Company
the Shares (as defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company desire to
set forth the adjustment in the number of Shares issuable upon exercise of the
Warrant as a result of a Diluting Issuance (as defined in Exhibit A to the
Warrant).
C. Capitalized terms used herein shall have the same meaning as set forth
in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Definitions. As used in this Antidilution Agreement, the following terms
have the following respective meanings:
(a) "Option" means any right, option, or warrant to subscribe for,
purchase, or otherwise acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of indebtedness, shares of
stock, or other securities directly or indirectly convertible into or
exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume, or fix a record date for
determining persons entitled to receive, any security (including Options),
whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all common stock (including reissued
shares) issued (or deemed to be issued pursuant to Section 2) after the date of
the warrant Additional Common Shares does not include, however, any common stock
issued in a transaction described in Sections 2.1 and 2.2 of the Warrant; any
common stock Issued upon conversion of preferred stock outstanding on the date
of the Warrant; the Shares; or common stock issued as incentive or in a
nonfinancing transaction to employees, officers, directors, or consultants to
the Company.
(e) The shares of common stock ultimately Issuable upon exercise of an
Option (including the shares of common stock ultimately Issuable upon conversion
or exercise of a Convertible Security Issuable pursuant to an Option) are deemed
to be Issued when the Option is Issued. The shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security (other than a
Convertible Security Issued pursuant to an Option) shall be deemed issued upon
Issuance of the Convertible Security.
2. Deemed Issuance of Additional Common Shares. The shares of common stock
ultimately Issuable upon exercise of an Option (including the shares of common
stock ultimately Issuable upon conversion or exercise of a Convertible Security
Issuable pursuant to an Option) are deemed to be Issued when the Option is
Issued. The shares of common stock ultimately Issuable upon conversion or
exercise of a Convertible Security (other than a Convertible Security Issued
pursuant to an Option) shall be deemed Issued upon Issuance of the Convertible
Security. The maximum amount of common stock Issuable is determined without
regard to any future adjustments permitted under the instrument creating the
Options or Convertible Securities.
3. Adjustment of Warrant Price for Diluting Issuances.
3.1 Weighted Average Adjustment. If the Company Issues Additional Common
Shares after the date of the Warrant and the consideration per Additional Common
Share (determined pursuant to Section 9) is less than the Warrant Price in
effect immediately before such Issue, the Warrant Price in effect immediately
before such Issue shall
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Silicon Valley Bank Antidilution Agreement
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be reduced, concurrently with such Issue, to a price (calculated to the nearest
hundredth of a cent) determined by multiplying the Warrant Price by a fraction:
(a) the numerator of which is the amount of common stock outstanding
immediately before such Issue plus the amount of common stock that the aggregate
consideration received by the Company for the Additional Common Shares would
purchase at the Warrant Price in effect immediately before such Issue, and
(b) the denominator of which is the amount of common stock outstanding
immediately before such Issue plus the number of such Additional Common Shares.
3.2 Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price, the number of Shares issuable upon exercise of the Warrant shall be
increased to equal the quotient obtained by dividing (a) the product resulting
from multiplying (i) the number of Shares issuable upon exercise of the Warrant
and (ii) the Warrant Price, in each case as in effect immediately before such
adjustment, by (b) the adjusted Warrant Price.
3.3 Securities Deemed Outstanding. For the purpose of this Section 3, all
securities issuable upon exercise of any outstanding Convertible Securities or
Options, warrants, or other rights to acquire securities of the Company shall be
deemed to be outstanding.
4. No Adjustment for Issuances Following Deemed Issuances. No adjustment to
the Warrant Price shall be made upon the exercise of Options or conversion of
Convertible Securities.
5. Adjustment Following Changes in Terms of Options or Convertible
Securities. If the consideration payable to, or the amount of common stock
issuable by, the Company increases or decreases, respectively, pursuant to the
terms of any outstanding Options or Convertible Securities, the Warrant Price
shall be recomputed to reflect such increase or decrease. The recomputation
shall be made as of the time of the Issuance of the Options or Convertible
Securities. Any changes in the Warrant Price that occurred after such Issuance
because other Additional Common Shares were Issued or deemed Issued shall also
be recomputed.
6. Recomputation Upon Expiration of Options or Convertible Securities. The
Warrant Price computed upon the original Issue of any Options or Convertible
Securities, and any subsequent adjustments based thereon, shall be recomputed
when any Options or rights of conversion under Convertible Securities expire
without having been exercised. In the case of Convertible Securities or Options
for common stock, the Warrant Price shall be recomputed as if the only
Additional Common Shares Issued were the shares of common stock actually Issued
upon the exercise of such securities, if any, and as if the only consideration
received therefor was the consideration actually received upon the Issue,
exercise or conversion of the Options or Convertible Securities. In the case of
Options for Convertible Securities, the Warrant Price shall be recomputed as if
the only Convertible Securities Issued were the Convertible Securities actually
Issued upon the exercise thereof, if any, and as if the only consideration
actually received therefor was the consideration actually received by the
Company (determined pursuant to Section 9), if any, upon the Issue of the
Options for the Convertible Securities,
7. Limit on Readjustments. No readjustment of the Warrant Price pursuant to
Sections 5 or 6 shall increase the Warrant Price more than the amount of any
decrease made in respect of the Issue of any Options or Convertible Securities.
8. 30 Day Options. In the case of any Options that expire by their terms
not more than 30 days after the date of Issue thereof, no adjustment of the
Warrant Price shall be made until the expiration or exercise of all such
Options.
9. Computation of Consideration The consideration received by the Company
for the Issue of any Additional Common Shares shall be computed as follows:
(a) Cash shall be valued at the amount of cash received by the Corporation,
excluding amounts paid or payable for accrued interest or accrued dividends.
(b) Property. Property other than cash shall be computed at the fair market
value thereof at the time of the Issue as determined in good faith by the Board
of Directors of the Company.
(c) Mixed Consideration. The consideration for Additional common Shares
Issued together with other property of the Company for consideration that covers
both shall be determined in good faith by the Board of Directors.
(d) Options and Convertible Securities. The consideration per Additional
Common Share for Options and Convertible Securities shall be determined by
dividing:
(i) the total amount, if any, received or receivable by the Company for the
Issue of the Options or Convertible Securities, plus the minimum amount of
additional consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such consideration) payable to the Company upon exercise of the Options or
conversion of the Convertible Securities, by
(ii) the maximum amount of common stock (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of such number) ultimately Issuable upon the exercise of
such Options or the conversion of such Convertible Securities.
10. General
10.1 Governing Law. This Antidilution Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
10.2 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
10.3 Entire Agreement. Except as set forth below, this Antidilution
Agreement and the other documents delivered pursuant hereto constitute the full
and entire
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Silicon Valley Bank Antidilution Agreement
--------------------------------------------------------------------------------
understanding and agreement between the parties with regard to the subject
hereof and thereof.
10.4 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Purchaser at Purchaser's address as set forth in the heading
to this Agreement, or at such other address as Purchaser shall have furnished to
the Company in writing, or (b) if to the Company, at the Company's address set
forth in the heading to this Agreement, or at such other address as the Company
shall have furnished to the Purchaser in writing.
10.5 Severability. In case any provision of this Antidilution Agreement
shall be invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Antidilution Agreement shall
not in any way be affected or impaired thereby.
10.6 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Antidilution Agreement.
10.7 Counterparts. This Antidilution Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
Company:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
-------------------------------
President or Vice President
By /s/ [Illegible]
-------------------------------
Secretary or Ass't Secretary
Puchaser:
SILICON VALLEY BANK
By /s/ [Illegible]
-------------------------------
Title Vice President
----------------------------
38112-V1 2/10/92
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[LOGO] Silicon Valley Bank
Loan and Security Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: June 2, 1992
THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
SILICON VALLEY BANK ("Silicon"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx 00000-0000 and the borrower named above (the "Borrower"), whose
chief executive office is located at the above address ("Borrower's Address").
1. LOANS.
1.1 Loans. Silicon, in its discretion, will make loans to the Borrower (the
"Loans") in amounts determined by Silicon in its discretion up to the amount
(the "Credit Limit") shown on the Schedule to this Agreement (the "Schedule").
The Borrower is responsible for monitoring the total amount of Loans and other
Obligations outstanding from time to time, and Borrower shall not permit the
same, at any time, to exceed the Credit Limit if at any time the total of all
outstanding Loans and all other Obligations exceeds the Credit Limit, the
Borrower shall immediately pay the amount of the excess to Silicon, without
notice or demand.
1.2 Interest. All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule hereto. Interest shall be payable
monthly, on the due date shown on the monthly billing from Silicon to the
Borrower.
1.3 Fees. The Borrower shall pay to Silicon a loan origination fee in the
amount shown on the Schedule hereto concurrently herewith. This fee is in
addition to all interest and other sums payable to Silicon and is not
refundable.
2. GRANT OF SECURITY INTEREST.
2.1 Obligations. The term "Obligations" as used in this Agreement means the
following: the obligation to pay all Loans and all interest thereon when due,
and to pay and perform when due all other present and future indebtedness,
liabilities, obligations, guarantees, covenants, agreements, warranties and
representations of the Borrower to Silicon, whether joint or several, monetary
or non-monetary, and whether created pursuant to this Agreement or any other
present or future agreement or otherwise. Silicon may, in its discretion,
require that Borrower pay monetary Obligations in cash to Silicon, or charge
them to Borrower's Loan account, in which event they will bear interest at the
same rate applicable to the Loans.
2.2 Collateral. As security for all Obligations, the Borrower hereby grants
Silicon a continuing security interest in all of the Borrower's interest in the
types of property described below, whether now owned or hereafter acquired, and
wherever located (collectively, the "Collateral"): (a) All accounts, contract
rights, chattel paper, letters of credit, documents, securities, money, and
instruments, and all other obligations now or in the future owing to the
Borrower; (b) All inventory, goods, merchandise, materials, raw materials, work
in process, finished goods, farm products, advertising, packaging and shipping
materials, supplies, and all other tangible personal property which is held for
sale or lease or furnished under contracts of service or consumed in the
Borrower's business, and all warehouse receipts and other documents; and (c) All
equipment, including without limitation all machinery, fixtures, trade fixtures,
vehicles, furnishings, furniture, materials, tools, machine tools, office
equipment, computers and peripheral devices, appliances, apparatus, parts, dies,
and jigs; (d) All general intangibles including, but not limited to, deposit
accounts, goodwill, names, trade names, trademarks and the goodwill of the
business symbolized thereby, trade secrets, drawings, blueprints, customer
lists, patents, patent applications, copyrights, security deposits, loan
commitment fees, federal, state and local tax refunds and claims, all rights in
all litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter arising
therefrom, all claims of Borrower against Silicon, all rights to purchase or
sell real or
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Silicon Valley Bank Loan and Security Agreement
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personal property, all rights as a licensor or licensee of any kind, all
royalties, licenses, processes, telephone numbers, proprietary information,
purchase orders, and all insurance policies and claims (including without
limitation credit, liability, property and other insurance), and all other
rights, privileges and franchises of every kind; (e) All books and records,
whether stored on computers or otherwise maintained; and (f) All substitutions,
additions and accessions to any of the foregoing, and all products, proceeds and
insurance proceeds of the foregoing, and all guaranties of and security for the
foregoing; and all books and records relating to any of the foregoing. Silicon's
security interest in any present or future technology (including patents, trade
secrets, and other technology) shall be subject to any licenses or rights now or
in the future granted by the Borrower to any third parties in the ordinary
course of Borrower's business; provided that if the Borrower proposes to sell,
license or grant any other rights with respect to any technology in a
transaction that, in substance, conveys a major part of the economic value of
that technology, Silicon shall first be requested to release its security
interest in the same, and Silicon may withhold such release in its discretion.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
The Borrower represents and warrants to Silicon as follows, and the
Borrower covenants that the following representations will continue to be true,
and that the Borrower will comply with all of the following covenants:
3.1 Corporate Existence and Authority. The 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 Borrower is and
will continue to be qualified and licensed to do business in all jurisdictions
in which any failure to do so would have a material adverse effect on the
Borrower. The execution, delivery and performance by the Borrower of this
Agreement, and all other documents contemplated hereby have been duly and
validly authorized, are enforceable against the Borrower in accordance with
their terms, 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 the
Borrower.
3.2 Name; Trade Names and Styles. The name of the Borrower set forth in the
heading to this Agreement is its correct name. Listed on the Schedule hereto are
all prior names of the Borrower and all of Borrower's present and prior trade
names. The Borrower shall give Silicon 15 days' prior written notice before
changing its name or doing business under any other name. The Borrower has
complied, and will in the future comply, with all laws relating to the conduct
of business under a fictitious business name.
3.3 Place of Business; Location of Collateral The address set forth in the
heading to this Agreement is the Borrower's chief executive office. In addition,
the Borrower has places of business and Collateral is located only at the
locations set forth on the Schedule to this Agreement. The Borrower will give
Silicon at least 15 days prior written notice before changing its chief
executive office or locating the Collateral at any other location.
3.4 Title of Collateral; Permitted Liens. The Borrower is now, and will at
all times in the future be, the sole owner of all the Collateral, except for
items of equipment which are leased by the Borrower. The Collateral now is and
will remain free and clear of any and all liens, charges, security interests,
encumbrances and adverse claims, except for the following ("Permitted Liens"):
(i) purchase money security interests in specific items of equipment; (ii)
leases of specific items of equipment; (iii) liens for taxes not yet payable;
(iv) additional security interests and liens consented to in writing by Silicon
in its sole discretion, which consent shall not be unreasonably withheld; and
(v) security interests being terminated substantially concurrently with this
Agreement. Silicon will have the right to require, as a condition to its consent
under subparagraph (iv) above, that the holder of the additional security
interest or lien sign an intercreditor agreement on Silicon's then standard
form, acknowledge that the security interest is subordinate to the security
interest in favor of Silicon, and agree to give written notice of any default to
Silicon at least 60 days prior to taking any action to enforce its subordinate
security interest, and that the Borrower agree that any uncured default in any
obligation secured by the subordinate security interest shall also constitute an
Event of Default under this Agreement. Silicon now has, and will continue to
have, a perfected and enforceable security interest in all of the Collateral,
subject only to the Permitted Liens, and the Borrower will at all times defend
Silicon and the Collateral against all claims of others. None of the Collateral
now is or will be affixed to any real property in such a manner, or with such
intent, as to become a fixture.
3.5 Maintenance of Collateral. The Borrower will maintain the Collateral in
good working condition, and the Borrower will not use the Collateral for any
unlawful purpose. The Borrower will immediately advise Silicon in writing of any
material loss or damage to the Collateral.
3.6 Books and Records. The Borrower has maintained and will maintain at the
Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with generally accepted accounting principles.
3.7 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 and now and in the future will
completely and accurately reflect the financial condition of the Borrower, at
the times and for the periods therein stated. Since the last date covered by any
such statement, there has been no material adverse change in the financial
condition or business of the Borrower. The Borrower is now and will continue to
be solvent. The Borrower will provide Silicon: (i) within 30 days after the end
of each month, a monthly financial statement prepared by the Borrower, and a
Compliance Certificate in such
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Silicon Valley Bank Loan and Security Agreement
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form as Silicon shall reasonably specify, signed by the Chief Financial Officer
of the Borrower, certifying that as of the end of such month the Borrower was in
full compliance with all of the terms and conditions of this Agreement, and
setting forth calculations showing compliance with the financial covenants set
forth on the Schedule and such other information as Silicon shall reasonably
request; and (ii) within 120 days following the end of the Borrower's fiscal
year, complete annual financial statements, certified by independent certified
public accountants acceptable to Silicon.
3.8 Tax Returns and Payments; Pension Contributions. The Borrower has
timely filed, and will timely file, all tax returns and reports required by
foreign, federal, state and local law, and the Borrower has timely paid, and
will timely pay, all foreign, federal, State and local taxes, assessments,
deposits and contributions now or in the future owed by the Borrower. The
Borrower may, however, defer payment of any contested taxes, provided that the
Borrower (i) in good faith contests the Borrower's obligation to pay the taxes
by appropriate proceedings promptly and diligently instituted and conducted,
(ii) notifies Silicon in writing of the commencement of, and any material
development in, the proceedings, and (iii) posts bonds or takes any other steps
required to keep the contested taxes from becoming a lien upon any of the
Collateral. The Borrower is unaware of any claims or adjustments proposed for
any of the Borrower's prior tax years which could result in additional taxes
becoming due and payable by the Borrower. The Borrower has paid, and shall
continue to pay all amounts necessary to fund all present and future pension,
profit sharing and referred compensation plans in accordance with their terms,
and the Borrower has not and will not withdraw from participation in, permit
partial or complete termination of, or permit the occurrence of any other event
with respect to, any such plan which could result in any liability of the
Borrower, including, without limitation, any liability to the Pension Benefit
Guaranty Corporation or its successors or any other governmental agency.
3.9 Compliance with Law. The Borrower has complied, and will comply, in all
material respects, with all provisions of all foreign, federal, state and local
laws and regulations relating to the Borrower, including, but not limited to,
those relating to the Borrower's ownership of real or personal property, conduct
and licensing of the Borrower's business, and environmental matters.
3.10 Litigation. Except as disclosed in the schedule, there is no claim,
suit, litigation, proceeding or investigation pending or (to best of the
Borrower's knowledge) threatened by or against or affecting the Borrower in any
court or before any governmental agency (or any basis therefor known to the
Borrower) which may result, either separately or in the aggregate, in any
material adverse change in the financial condition or business of the Borrower,
or in any material impairment in the ability of the Borrower to carry on its
business in substantially the same manner as it is now being conducted. The
Borrower will promptly inform Silicon in writing of any claim, proceeding,
litigation or investigation in the future threatened or instituted by or against
the Borrower involving amounts in excess of $250,000.
3.11 Use of Proceeds. All proceeds of all Loans shall be used solely for
lawful business purposes.
4. ADDITIONAL DUTIES OF THE BORROWER.
4.1 Financial and Other Covenants. The Borrower shall at all times comply
with the financial and other covenants set forth in the Schedule to this
Agreement.
4.2 Overadvance; Proceeds of Accounts. If for any reason the total of all
outstanding Loans and all other Obligations exceeds the Credit Limit, without
limiting Silicon's other remedies, and whether or not Silicon declares an Event
of Default, Borrower shall remit to Silicon all checks and other proceeds of
Borrower's accounts and general intangibles, in the same form as received by
Borrower, within one day after Borrower's receipt of the same, to be applied to
the Obligations in such order as Silicon shall determine in its discretion.
4.3 Insurance. The Borrower shall, at all times insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to Silicon, in such form and amounts as Silicon
may reasonably require. All such insurance policies shall name Silicon as an
additional loss payee, and shall contain a lenders loss payee endorsement in
form reasonably acceptable to Silicon. Upon receipt of the proceeds of any such
insurance, Silicon shall apply such proceeds in reduction of the Obligations as
Silicon shall determine in its sole and absolute discretion, except that,
provided no Event of Default has occurred, Silicon shall release to the Borrower
insurance proceeds with respect to equipment totaling less than $100,000, which
shall be utilized by the Borrower for the replacement of the equipment with
respect to which the insurance proceeds were paid. Silicon may require
reasonable assurance that the insurance proceeds so released will be so used. If
the Borrower fails to provide or pay for any insurance, Silicon may, but is not
obligated to, obtain the same at the Borrower's expense. The Borrower shall
promptly deliver to Silicon copies of all reports made to insurance companies.
4.4 Reports. The Borrower shall provide Silicon with such written reports
with respect to the Borrower (including without limitation budgets, sales
projections, operating plans and other financial documentation), as Silicon
shall from time to time reasonably specify.
4.5 Access to Collateral, Books and Records. At all reasonable times, and
upon one business day notice, Silicon, or its agents, shall have the right to
inspect the Collateral, and the right to audit and copy the Borrower's
accounting books and records and Borrower's books and records relating to the
Collateral. Silicon shall take reasonable steps to keep confidential all
information obtained in any such inspection or audit, but Silicon shall have the
right to disclose any such information to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. The foregoing
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Silicon Valley Bank Loan and Security Agreement
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audits shill be at Silicon's expense, except that the Borrower shall reimburse
Silicon for its reasonable out of pocket costs for semi-annual accounts
receivable audits by third parties retained by Silicon, and Silicon may debit
Borrower's deposit accounts with Silicon for the cost of such semi-annual
accounts receivable audits (in which event Silicon shall send notification
thereof to the Borrower). Notwithstanding the foregoing, after the occurrence of
an Event of Default all audits shall be at the Borrower's expense.
4.6 Negative Covenants. Except as may be permitted in the Schedule hereto,
the Borrower shall not, without Silicon's prior written consent, do any of the
following: (i) merge or consolidate with another corporation, except that the
Borrower may merge or consolidate with another corporation if the Borrower is
the surviving corporation in the merger and the aggregate value of the assets
acquired in the merger do not exceed 25% of Borrower's Tangible Net Worth (as
defined in the Schedule) as of the end of the month prior to the effective date
of the merger, and the assets of the corporation acquired in the merger are not
subject to any liens or encumbrances, except Permitted Liens; (ii) acquire any
assets outside the ordinary course of business for an aggregate purchase price
exceeding 25% of Borrower's Tangible Net Worth (as defined in the Schedule) as
of the end of the month prior to the effective date of the acquisition; (iii)
enter into any other transaction outside the ordinary course of business (except
as permitted by the other provisions of this Section); (iv) sell or transfer any
Collateral, except for the sale of finished inventory in the ordinary course of
the Borrower's business, and except for the sale of obsolete or unneeded
equipment in the ordinary course of business; (v) make any loans of any money or
any other assets; (vi) incur any debts, outside the ordinary course of business,
which would have a material, adverse effect on the Borrower or on the prospect
of repayment of the Obligations; (vii) guarantee or otherwise become liable with
respect to the obligations of another party or entity; (viii) pay or declare any
dividends on the Borrower's stock (except for dividends payable solely in stock
of the Borrower); (ix) redeem, retire, purchase or otherwise acquire, directly
or indirectly, any of the Borrower's stock; (x) make any change in the
Borrower's capital structure which has a material adverse effect on the Borrower
or on the prospect of repayment of the Obligations; or (xi) dissolve or elect to
dissolve. Transactions permitted by the foregoing provisions of this Section are
only permitted if no Event of Default and no event which (with notice or passage
of time or both) would constitute an Event of Default would occur as a result of
such transaction.
4.7 Litigation Cooperation. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or in any manner
relating to the Borrower, the Borrower shall, without expense to Silicon, make
available the Borrower and its officers, employees and agents and the Borrower's
books and records to the extent that Silicon may deem them reasonably necessary
in order to prosecute or defend any such suit or proceeding.
4.8 Verification. Silicon may, from time to time, following prior
notification to Borrower, verify directly with the respective account debtors
the validity, amount and other matters relating to the Borrower's accounts, by
means of mail, telephone or otherwise, either in the name of the Borrower or
Silicon or such other name as Silicon may reasonably choose, provided that no
prior notification to Borrower shall be required following an Event of Default.
4.9 Execute Additional Documentation. The Borrower agrees, at its expense,
on request by Silicon, to execute all documents in form satisfactory to Silicon,
as Silicon, may deem reasonably necessary or useful in order to perfect and
maintain Silicon's perfected security interest in the Collateral, and in order
to fully consummate all of the transactions contemplated by this Agreement.
5.1 Maturity Date. This Agreement shall continue in effect until the
maturity date set forth on the Schedule hereto (the "Maturity Date").
5.2 Early Termination. This Agreement may be terminated, without penalty,
prior to the Maturity Date as follows: (i) by the 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 an Event of Default, without
notice, effective immediately.
5.3 Payment of Obligations. On the Maturity Date or on any earlier
effective date of termination, the Borrower shall pay and perform in full all
Obligations, whether evidenced by installment notes or otherwise, and whether or
not all or any part of such Obligations are otherwise then due and payable*.
Without limiting the generality of the foregoing, if on the Maturity Date, or on
any earlier effective date of termination, there are any outstanding letters of
credit issued by Silicon or issued by another institution based upon an
application, guarantee, indemnity or similar agreement on the part of Silicon,
then on such date Borrower shall provide to Silicon cash collateral in an amount
equal to the face amount of all such letters of credit plus all interest, fees
and cost due or to become due in connection therewith, to secure all of the
Obligations relating to said letters of credit, pursuant to Silicon's then
standard form cash pledge agreement. Notwithstanding any termination of this
Agreement, all of Silicon's security interests in all of the Collateral and all
of the terms and provisions of this Agreement shall continue in full force and
effect until all Obligations ** have been paid and performed in full; provided
that, without limiting the fact that loans are discretionary on the part of
Silicon, Silicon may, in its sole discretion, refuse to make any further Loans
after termination. No termination shall in any way affect or impair any right or
remedy of Silicon, nor shall any such termination relieve the Borrower of any
Obligation to Silicon, until all of the Obligations have been paid and performed
in full. Upon payment and performance in full of all the Obligations, Silicon
shall promptly deliver to the Borrower termination statements, requests for
reconveyances and such other documents as
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Silicon Valley Bank Loan and Security Agreement
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may be required to fully terminate any of Silicon's security interests.
* except that the Term Loan set forth in the Schedule shall be payable as
set forth in the Schedule.
** including without limitation the Term Loan
6. EVENTS OF DEFAULT AND REMEDIES.
6.1 Events of Default. The occurrence of any of the following events shall
constitute an "Event of Default" under this Agreement, and the Borrower shall
give Silicon immediate written notice thereof: (a) Any warranty, representation,
statement, report or certificate made or delivered to Silicon by the Borrower or
any of the Borrower's officers, employees or agents, now or in the future, shall
be untrue or misleading in any material respect; or (b) the Borrower shall fail
to pay when due any Loan or any interest thereon or any other monetary
Obligation; or (c) the total Loans and other Obligations outstanding at any time
exceed the Credit Limit; or (d) the Borrower shall fail to comply with any of
the financial covenants set forth in the Schedule or shall fail to perform any
other non-monetary Obligation which by its nature cannot be cured; or (e) the
Borrower shall fail to pay or perform any other non-monetary Obligation, which
failure is not cured within 5 business days after the date due; or (f) Any levy,
assessment, attachment, seizure, lien or encumbrance is made on all or any part
of the Collateral which is not cured within 10 days after the occurrence of the
same; or (g) Dissolution, termination of existence, insolvency or business
failure of the 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 the 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 (h) the commencement of any proceeding against the Borrower or any guarantor
of any of the Obligations 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, which is not cured by the
dismissal thereof within 30 days after the date commenced; (i) revocation or
termination of, or limitation of liability upon, any guaranty of the
Obligations; or commencement of proceedings by any guarantor of any of the
Obligations under any bankruptcy or insolvency law; or (j) the Borrower makes
any payment on account of any indebtedness or obligation which has been
subordinated to the Obligations or if any person who has subordinated such
indebtedness or obligations terminates or in any way limits his subordination
agreement; or (k) the Borrower shall generally not pay its debts as they become
due; or the Borrower shall conceal, remove or transfer any part of its property,
with intent to hinder, delay or defraud its creditors, or make or suffer any
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law. Silicon may cease making any Loans
hereunder during any of the above cure periods, and thereafter if an Event of
Default has occurred.
6.2 Remedies. Upon the occurrence of any Event of Default, and at any time
thereafter, Silicon, at its option, and without notice or demand of any kind
(all of which are hereby expressly waived by the Borrower), may do any one or
more of the following: (a) Cease making Loans or otherwise extending credit to
the Borrower under this Agreement or any other document or agreement; (b)
Accelerate and declare all or any part of the Obligations to be immediately due,
payable, and performable, notwithstanding any deferred or installment payments
allowed by any instrument evidencing or relating to any Obligation; (c) Take
possession of any or all of the Collateral wherever it may be found, and for
that purpose the Borrower hereby authorizes Silicon without judicial process to
enter onto any of the Borrower's premises without interference to search for,
take possession of, keep, store, or remove any of the Collateral, and remain on
the premises or cause a custodian to remain on the premises in exclusive control
thereof without charge for so long as Silicon deems it reasonably necessary in
order to complete the enforcement of its rights under this Agreement or any
other agreement; provided, however, that should Silicon seek to take possession
of any or all of the Collateral by Court process, the Borrower hereby
irrevocably waives: (i) any bond and any surety or security relating thereto
required by any statute, court rule or otherwise as an incident to such
possession; (ii) any demand for possession prior to the commencement of any suit
or action to recover possession thereof; and (iii) any requirement that Silicon
retain possession of and not dispose of any such Collateral until after trial or
final judgment; (d) Require the Borrower to assemble any or all of the
Collateral and make it available to Silicon at places designated by Silicon
which are reasonably convenient to Silicon and the Borrower, and to remove the
Collateral to such locations as Silicon may deem advisable; (e) Require Borrower
to deliver to Silicon, in kind, all checks and other payments received with
respect to all accounts and general intangibles, together with any necessary
endorsements, within one day after the date received by the Borrower; (f)
Complete the processing, manufacturing or repair of any Collateral prior to a
disposition thereof and, for such purpose and for the purpose of removal,
Silicon shall have the right to use the Borrower's premises, vehicles, hoists,
lifts, cranes, equipment and all other property without charge; (g) Sell, lease
or otherwise dispose of any of the Collateral in its condition at the time
Silicon obtains possession of it or after further manufacturing, processing or
repair, at any one or more public and/or private sales, in lots or in bulk, for
cash, exchange other property, or on credit, and to adjourn any such sale from
time to time without notice other than oral announcement at the time scheduled
for sale. Silicon shall have the right to conduct such disposition on the
Borrower's premises without charge, for such time or times as Silicon deems
reasonable, or on Silicon's premises, or elsewhere and the Collateral need not
be located at the place of disposition. Silicon may directly or through any
affiliated company purchase or lease any Collateral at any such public
disposition, and if permissible under applicable law, at any private
disposition. Any sale or other disposition of Collateral
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Silicon Valley Bank Loan and Security Agreement
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shall not relieve the Borrower of any liability the Borrower may have if any
Collateral is defective as to title or physical condition or otherwise at the
time of sale; (h) Demand payment of and collect any accounts and general
intangibles comprising Collateral and, in connection therewith, the Borrower
irrevocably authorizes Silicon to endorse or sign the Borrower's name on all
collections, receipts, instruments and other documents, to take possession of
and open mail addressed to the Borrower and remove therefrom payments made with
respect to any item of the Collateral or proceeds thereof, and, in Silicon's
sole discretion, to grant extensions of time to pay, compromise claims and
settle accounts and the like for less than face value; (i) Offset against any
sums in any of Borrower's general, special or other deposit accounts with
Silicon; and (j) Demand and receive possession of any of the Borrower's federal
and state income tax returns and the books and records utilized in the
preparation thereof or referring thereto. All reasonable attorneys' fees,
expenses, costs, liabilities and obligations incurred by Silicon with respect to
the foregoing shall be added to and become part of the Obligations, shall be due
on demand, and shall bear interest at a rate equal to the highest interest rate
applicable to any of the Obligations. Without limiting any of Silicon's rights
and remedies, from and after the occurrence of any Event of Default, the
interest rate applicable to the Obligations shall be increased by an additional
four percent per annum.
6.3 Standards for Determining Commercial Reasonableness. The Borrower and
Silicon agree that a sale or other disposition (collectively, "sale") of any
Collateral which complies with the following standards will conclusively be
deemed to be commercially reasonable: (i) Notice of the sale is given to the
Borrower at least seven days prior to the sale, and, in the case of a public
sale, notice of the sale is published at least seven days before the sale in a
newspaper of general circulation in the county where the sale is to be
conducted; (ii) Notice of the sale describes the collateral in general,
non-specific terms; (iii) The sale is conducted at a place designated by
Silicon, with or without the Collateral being present; (iv) The sale commences
at any time between 8:00 a.m. and 6:00 p.m; (v) Payment of the purchase price in
cash or by cashier's check or wire transfer is required; (vi) With respect to
any sale of any of the Collateral, Silicon may (but is not obligated to) direct
any prospective purchaser to ascertain directly from the Borrower any and all
information concerning the same. Silicon may employ other methods of noticing
and selling the Collateral, in its discretion, if they are commercially
reasonable.
6.4 Power of Attorney. Upon the occurrence of any Event of Default, without
limiting Silicon's other rights and remedies, the Borrower grants to Silicon an
irrevocable power of attorney coupled with an interest, authorizing and
permitting Silicon (acting through any of its employees, attorneys or agents) at
any time, at its option, but without obligation, with or without notice to the
Borrower, and at the Borrower's expense, to do any or all of the following, in
the Borrower's name or otherwise: (a) Execute on behalf of the Borrower any
documents that Silicon may, in its sole and absolute discretion, deem advisable
in order to perfect and maintain Silicon's security interest in the Collateral,
or in order to exercise a right of the Borrower or Silicon, or in order to fully
consummate all the transactions contemplated under this Agreement, and all other
present and future agreements; (b) Execute on behalf of the Borrower any
document exercising, transferring or assigning any option to purchase, sell or
otherwise dispose of or to lease (as lessor or lessee) any real or personal
property which is part of Silicon's Collateral or in which Silicon has an
interest; (c) Execute on behalf of the Borrower, any invoices relating to any
account, any draft against any account debtor and any notice to any account
debtor, any proof of claim in bankruptcy, any Notice of Lien, claim of
mechanic's, materialman's or other lien, or assignment or satisfaction of
mechanic's, materialman's or other lien; (d) Take control in any manner of any
cash or non-cash items of payment or proceeds of Collateral; endorse the name of
the Borrower upon any instruments, or documents, evidence of payment or
Collateral that may come into Silicon's possession; (e) Endorse all checks and
other forms of remittances received by Silicon; (f) Pay, contest or settle any
lien, charge, encumbrance, security interest and adverse claim in or to any of
the Collateral, or any judgment based thereon, or otherwise take any action to
terminate or discharge the same; (g) Grant extensions of time to pay, compromise
claims and settle accounts and general intangibles for less than face value and
execute all releases and other documents in connection therewith; (h) Pay any
sums required on account of the Borrower's taxes or to secure the release of any
liens therefor. or both; (i) Settle and adjust, and give releases of, any
insurance claim that relates to any of the Collateral and obtain payment
therefor; (j) Instruct any third party having custody or control of any books or
records belonging to, or relating to, the Borrower to give Silicon the same
rights of access and other rights with respect thereto as Silicon has under this
Agreement; and (k) Take any action or pay any sum required of the Borrower
pursuant to this Agreement and any other present or future agreements. Silicon
shall exercise the foregoing powers in a commercially reasonable manner. Any and
all reasonable sums paid and any and all reasonable costs, expenses,
liabilities, obligations and attorneys' fees incurred by Silicon with respect to
the foregoing shall be added to and become part of the Obligations, shall be
payable on demand, and shall bear interest at a rate equal to the highest
interest rate applicable to any of the Obligations. In no event shall Silicon's
rights under the foregoing power of attorney or any of Silicon's other rights
under this Agreement be deemed to indicate that Silicon is in control of the
business, management or properties of the Borrower.
6.5 Application of Proceeds. All proceeds realized as the result of any
sale of the Collateral shall be applied by Silicon first to the costs, expenses,
liabilities, obligations and attorneys' fees incurred by Silicon in the exercise
of its rights under this Agreement, second to the interest due upon any of the
Obligations, and third to the principal of the Obligations, in such order as
Silicon shall determine in
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Silicon Valley Bank Loan and Security Agreement
--------------------------------------------------------------------------------
its sole discretion. Any surplus shall be paid to the Borrower or other persons
legally entitled thereto; the Borrower shall remain liable to Silicon for any
deficiency. If, Silicon, in its sole discretion, directly or indirectly enters
into a deferred payment or other credit transaction with any purchaser at any
sale or other disposition of Collateral, Silicon shall have the option,
exercisable at any time, in its sole discretion, of either reducing the
Obligations by the principal amount of purchase price or deferring the reduction
of the Obligations until the actual receipt by Silicon of the cash therefor.
6.6 Remedies Cumulative. In addition to the rights and remedies set forth
in this Agreement, Silicon shall have all the other rights and remedies accorded
a secured party under the California Uniform Commercial Code and under all other
applicable laws, and under any other instrument or agreement now or in the
future entered into between Silicon and the Borrower, and all of such rights and
remedies are cumulative and none is exclusive. Exercise or partial exercise by
Silicon of one or more of its rights or remedies shall not be deemed an
election, nor bar Silicon from subsequent exercise or partial exercise of any
other rights or remedies. The failure or delay of Silicon to exercise any rights
or remedies shall not operate as a waiver thereof, but all rights and remedies
shall continue in full force and effect until all of the Obligations have been
duly paid and performed.
7. GENERAL PROVISIONS.
7.1 Notices. All notices to be given under this Agreement shall be in
writing and shall be given either personally or by regular first-class mail, or
certified mail return receipt requested, addressed to Silicon or the Borrower at
the addresses shown in the heading to this Agreement, or at any other address
designated in writing by one party to the other party. All notices shall be
deemed to have been given upon delivery in the case of notices personally
delivered to the Borrower or to Silicon, or at the expiration of two business
days following the deposit thereof in the United States mail, with postage
prepaid.
7.2 Severability. Should any provision of this Agreement be held by any
court of competent jurisdiction to be void or unenforceable, such defect shall
not affect the remainder of this Agreement, which shall continue in full force
and effect.
7.3 Integration. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between the Borrower and Silicon and
supersede all prior and contemporaneous negotiations and oral representations
and agreements, all of which are merged and integrated in this Agreement. There
are no oral understandings, representations or agreements between the parties
which are not set forth in this Agreement or in other written agreements signed
by the parties in connection herewith.
7.4 Waivers. The failure of Silicon at any time or times to require the
Borrower to strictly comply with any of the provisions of this Agreement or any
other present or future agreement between the Borrower and Silicon shall not
waive or diminish any right of Silicon later to demand and receive strict
compliance therewith. Any waiver of any default shall not waive or affect any
other default, whether prior or subsequent thereto. None of the provisions of
this Agreement or any other agreement now or in the future executed by the
Borrower and delivered to Silicon shall be deemed to have been waived by any act
or knowledge of Silicon or its agents or employees, but only by a specific
written waiver signed by an officer of Silicon and delivered to the Borrower.
The Borrower waives demand, protest, notice of protest and notice of default or
dishonor, notice of payment and nonpayment, release, compromise, settlement,
extension or renewal of any commercial paper, instrument, account, general
intangible, document or guaranty at any time held by Silicon on which the
Borrower is or may in any way be liable, and notice of any action taken by
Silicon, unless expressly required by this Agreement.
7.5 No Liability for Ordinary Negligence. Neither Silicon, nor any of its
directors, officers, employees, agents, attorneys or any other person affiliated
with or representing Silicon shall be liable for any claims, demands, losses or
damages, of any kind whatsoever, made, claimed, incurred or suffered by the
Borrower or any other party through the ordinary negligence of Silicon, or any
of its directors, officers, employees, agents, attorneys or any other person
affiliated with or representing Silicon.
7.6 Amendment. The terms and provisions of this Agreement may not be waived
or amended, except in a writing executed by the Borrower and a duly authorized
officer of Silicon.
7.7 Time of Essence. Time is of the essence in the performance by the
Borrower of each and every obligation under this Agreement.
7.8 Attorneys Fees and Costs. The Borrower shall reimburse Silicon for all
reasonable attorneys' fees and all filing, recording, search, title insurance,
appraisal, audit, and other reasonable costs incurred by Silicon, pursuant to,
or in connection with, or relating to this Agreement (whether or not a lawsuit
is filed), including, but not limited to, any reasonable attorneys' fees and
costs Silicon incurs in order to do the following: prepare and negotiate this
Agreement and the documents relating to this Agreement; obtain legal advice in
connection with this Agreement; enforce, or seek to enforce, any of its rights;
prosecute actions against, or defend actions by, account debtors; commence,
intervene in, or defend any action or proceeding; initiate any complaint to be
relieved of the automatic stay in bankruptcy; file or prosecute any probate
claim, bankruptcy claim, third-party claim, or other claim; examine, audit,
copy, and inspect any of the Collateral or any of the Borrower's books and
records; protect, obtain possession of, lease, dispose of, or otherwise enforce
Silicon's security interest in, the Collateral; and otherwise
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Silicon Valley Bank Loan and Security Agreement
--------------------------------------------------------------------------------
represent Silicon in any litigation relating to the Borrower. In satisfy
Borrower's obligation hereunder to reimburse Silicon for attorneys fees.
Borrower may for convenience issue checks directly to Silicon's attorneys. Levy
& Norminton but Borrower acknowledges and agrees that Levy & Norminton is
representing only Silicon and not Borrower in connection with this Agreement. If
either Silicon or the Borrower files any lawsuit against the other predicated on
a breach of this Agreement, the prevailing party in such action shall be
entitled to recover its reasonable costs and attorneys' fees, including (but not
limited to) reasonable attorneys' fees and costs incurred in the enforcement of,
execution upon or defense of any order, decree, award or judgment. All
attorneys' fees and costs to which Silicon may be entitled pursuant to this
Paragraph shall immediately become part of the Borrower's Obligations, shall be
due on demand, and shall bear interest at a rate equal to the highest interest
rate applicable to any of the Obligations.
7.9 Benefit of Agreement. The provisions of this Agreement shall be binding
upon and inure to the benefit of the respective successors, assigns, heirs,
beneficiaries and representatives of the parties hereto; provided, however, that
the Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of Silicon, and any prohibited assignment
shall be void. No consent by Silicon to any assignment shall release the
Borrower from its liability for the Obligations.
7.10 Joint and Several Liability. If the Borrower consists of more than one
person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.
7.11 Paragraph Headings; Construction. Paragraph headings are only used in
this Agreement for convenience. The Borrower acknowledges that the headings may
not describe completely the subject matter of the applicable paragraph, and the
headings shall not be used in any manner to construe, limit, define or interpret
any term or provision of this Agreement. This Agreement has been fully reviewed
and negotiated between the parties and no uncertainty or ambiguity in any term
or provision of this Agreement shall be construed strictly against Silicon or
the Borrower under any rule of construction or otherwise.
7.12 Mutual Waiver of Jury Trial. The 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 other present or future
instrument or agreement between Silicon and the Borrower, or any conduct, acts
or omissions of Silicon or the Borrower or any of their directors, officers,
employees, agents, attorneys or any other persons affiliated with Silicon or the
Borrower, in all of the foregoing cases, whether sounding in contract or tort or
otherwise.
7.13 Governing Law; Jurisdiction; Venue. This Agreement and all acts and
transactions hereunder and all rights and obligations of Silicon and the
Borrower shall be governed by, and in accordance with, the laws of the State of
California. Any undefined term used in this Agreement that is defined in the
California Uniform Commercial Code shall have the meaning assigned to that term
in the California Uniform Commercial Code. As a material part of the
consideration to Silicon to enter into this Agreement, the Borrower (i) agrees
that all actions and proceedings relating directly or indirectly hereto shall,
at Silicon's option, be litigated in courts located within California, and that
the exclusive venue therefor shall be Los Angeles County; (ii) consents to the
jurisdiction and venue of any such court and consents to service of process in
any such action or proceeding by personal delivery or any other method permitted
by law; and (iii) waives any and all right the Borrower may have to object to
the jurisdiction of any such court, or to transfer or change the venue of any
such action or proceeding.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
-------------------------------
President or Vice President
By /s/ [Illegible]
-------------------------------
Secretary or Ass't Secretary
Silicon:
By /s/ [Illegible]
-------------------------------
Title VP
----------------------------
25,318-1
-8-
--------------------------------------------------------------------------------
[LOGO] Silicon Valley Bank
Schedule to
Loan and Security Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: June 2, 1992
Credit Limit (Section 1.1): An amount equal to the sum of (1) and
(2) below:
(1) Term Loan. A term loan (the "Term
Loan") in an amount up to 70% of the
cost (excluding tax and installation) of
a new Automatic Spinforming Machine for
High Pressure Cylinders, Model No.
"Autospin" AST 13.80 CNC, to be
purchased by Borrower on or before
August 29, 1992 (such purchase to be
evidenced by documentation reasonably
acceptable to Silicon), but in no event
shall the Term Loan be more than
$600,000, PLUS
(2) Accounts Loans. An amount not to
exceed the lesser of: (i) $1,000,000; or
(ii) 70% of the Net Amount of Borrower's
accounts, which Silicon in its
discretion deems eligible for borrowing;
PROVIDED THAT, in no event may the total
amount of the outstanding Accounts Loans
and Term Loan exceed the total sum of
$800,000 until Borrower satisfies all of
the Term Loan Extension Conditions set
forth in Section 5.1 below.
"Net Amount" of an account means the
gross amount of the account, minus all
applicable sales, use, excise and other
similar taxes and minus all discounts,
credits and allowances of any nature
granted or claimed.
As used in this Agreement, "Loans"
include loans made pursuant to
subsection (1) and (2) above. Loans
shall be made first under the Accounts
Loans facility until all Loan &
available thereunder have been made, and
then under the Term Loan facility.
Interest on all Loans shall be payable
monthly as provided in Section 1.2 of
this Loan Agreement and Section 1.2 of
this Schedule.
Without limiting the fact that the
determination of which accounts are
eligible for borrowing is a matter of
Silicon's discretion, the following will
not be deemed eligible for borrowing:
accounts outstanding for more than 90
days from the invoice date, accounts
subject to any contingencies, accounts
owing from an account debtor outside the
United States (unless pre-approved by
Silicon in its discretion, or backed by
a letter of credit
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Silicon Valley Bank Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
satisfactory to Silicon, or FCIA insured
satisfactory to Silicon). accounts owing
from one account debtor to the extent
they exceed 25% of the total eligible
accounts outstanding, accounts owing
from an affiliate of Borrower, and
accounts owing from an account debtor to
whom Borrower is or may be liable for
goods purchased from such account debtor
or otherwise. In addition, if more than
50% of the accounts owing from an
account debtor are outstanding more than
90 days from the invoice date or are
otherwise not eligible accounts, then
all accounts owing from that account
debtor will be deemed ineligible for
borrowing.
Letter of Credit Sub-Limit: Silicon, in its discretion, will from
time to time during the term of this
Agreement issue letters of credit for
the account of the Borrower ("Letters of
Credit"), in an aggregate amount at any
one time outstanding not to exceed
$250,000, upon the request of the
Borrower and upon execution and delivery
by the Borrower of Applications for
Letters of Credit and such other
documentation as Silicon shall specify
(the "Letter of Credit Documentation").
Fees for the Letters of Credit shall be
as provided in the Letter of Credit
Documentation.
The Credit Limit set forth in
Subparagraph (2) of the Section entitled
"Credit Limit" above shall be deemed to
be utilized in an amount equal to 100%
of the amount of Letters of Credit from
time to time outstanding.
Interest Rate (Section 1.2): Accounts Loans: A rate equal to the
"Prime Rate" in effect from time to
time, plus 2% per annum, provided that
the interest rate in effect in each
month shall not be less than 8.5% per
annum.
Term Loan: 12% per annum, provided if
the Borrower exercises the option
provided in Section 5.1 below to extend
the term of the Term Loan, the Term Loan
shall bear interest, commencing August
31, 1992, at a rate equal to the "Prime
Rate" in effect from time to time, plus
3% per annum, provided that the interest
rate in effect in each month shall not
be less than 9.5% 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 necessary 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.
Loan Origination Fee (Section 1.3): $16,000. (My Commitment Fee previously
paid by the Borrower in connection with
this loan shall be credited against this
Fee.)
Maturity Date (Section 5.1): June 2, 1993. After said Maturity Date
no further Accounts Loans will be made,
and on said Maturity Date all
Obligations (other than the Term Loan)
shall be due and payable.
The Term Loan shall be due and payable
on or before August 28, 1992. Borrower
shall have the option (exercisable by
written notice to Silicon on or before
August 28, 1992) to pay the principal
amount of the Term Loan in 48 equal
monthly installments of principal,
commencing on August 31, 1992 and
continuing on the last day of each
succeeding month until paid in full;
provided the following
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Silicon Valley Bank Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
conditions (the "Term Loan Extension
Conditions") are first satisfied: (i) on
or before August 28, 1992 Borrower
raises net proceeds from the issuance of
new equity securities of not less than
$12,000,000, and Silicon's review of the
results of such issuance of securities
and Borrower's financial condition is
satisfactory to Silicon in its
discretion; and (ii) Borrower and
Silicon agree in writing on debt
coverage and liquidity ratio
requirements which are satisfactory to
them; and (iii) no Event of Default has
occurred and no event has occurred and
is continuing which, with notice or
passage of time or both would constitute
an Event of Default.
Prior Names of Borrower
(Section 3.2): None
Trade Names of Borrower
(Section 3.2): NGV Systems Inc., CNG Cylinder Company,
NGV Systems Company
Other Locations and Addresses
(Section 3.3): 0000 Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxx
Xxxxx, Xxxxxxxxxx 00000 0000 Xxxxxxx 000
Xxxx, Xxxxxx, Xxxxx 00000
Material Adverse Litigation
(Section 3.10): None
Negative Covenants-Exceptions
(Section 4.6): Without Silicon's prior written consent,
Borrower may do the following, provided
that, after giving effect thereto, no
Event of Default has occurred and no
event has occurred which, with notice or
passage of time or both, would
constitute an Event of Default, and
provided that the following are done in
compliance with all applicable laws,
rules and regulations: (i) repurchase
shares of Borrower's stock pursuant to
any employee stock purchase or benefit
plan, provided that the total amount
paid by Borrower for such stock does not
exceed $100,000 in any fiscal year; (ii)
guarantee obligations of, and make loans
to, Borrower's wholly-owned subsidiary,
NOV Development Co., Inc.
("Subsidiary"); (iii) grant a prior
security interest to Autospin, Inc. in a
Three-Roller Flow Forming Machine Model
"Xxxxxxx" ST 65-132 CNC, Serial No.
15.1338.0 3/1 and related accessories,
provided Autospin enters into a
stand-still agreement with Silicon on
terms acceptable to Silicon.
Financial Covenants
(Section 4.1): Borrower shall comply with all of the
following covenants. Compliance shall be
determined as of the end of each month,
except as otherwise specifically
provided below:
Working Capital: Borrower shall maintain an excess of
current assets over current liabilities
of not less than $700,000.
Quick Asset Ratio: Borrower shall maintain a ratio of
"Quick Assets" to current liabilities of
not less than 1.0 to 1.
Tangible Net Worth: Borrower shall maintain a tangible net
worth of not less than $2,000,000.
-3-
Silicon Valley Bank Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
Debt to Tangible
Net Worth Ratio: Borrower shall maintain a ratio of total
liabilities to tangible net worth of not
more than 0.50 to 1.
Profitability Borrower shall not incur a loss (after
taxes) for the fiscal quarter ending
June 30, 1992 in excess of $750,000, nor
shall Borrower incur a loss (after
taxes) for the fiscal quarter ending
September 30, 1992 in excess of
$250,000, nor shall Borrower incur a
loss (after taxes) for any subsequent
fiscal quarter.
Definitions: "Current assets, and "current
liabilities" shall have the meanings
ascribed to them in accordance with
generally accepted accounting
principles.
"Tangible net worth" means the excess of
total assets over total liabilities,
determined in accordance with generally
accepted accounting principles,
excluding however all assets which would
be classified as intangible assets under
generally accepted accounting
principles, including without limitation
goodwill, licenses, patents, trademarks,
trade names, copyrights, and franchises.
"Quick Assets" means cash on hand or on
deposit in banks, readily marketable
securities issued by the United States,
readily marketable commercial paper
rated "A-1" by Standard & Poor's
Corporation (or a similar rating by a
similar rating organization),
certificates of deposit and banker's
acceptances, and accounts receivable
(net of allowance for doubtful
accounts).
Subordinated Debt: "Liabilities" for purposes of the
foregoing covenants do not include
indebtedness which is subordinated to
the indebtedness to Silicon under a
subordination agreement in form
specified by Silicon or by language in
the instrument evidencing the
indebtedness which is acceptable to
Silicon.
Other Covenants
(Section 4.1): Borrower shall at all times comply with
all of the following additional
covenants:
1. Banking Relationship. Borrower shall
at all times maintain its primary
banking relationship with Silicon.
2. Monthly Borrowing Base Certificate
and Listing. Within 20 days after the
end of each month, Borrower shall
provide Silicon with a Borrowing Base
certificate in such form as Silicon
shall specify, and an aged listing of
Borrower's accounts receivable.
3. Warrants. The Borrower shall provide
Silicon with five-year warrants to
purchase 32,000 shares of Preferred
stock of the Borrower, at $5 per share
(the "Silicon Price Per Share"), on the
terms and conditions in the Warrant to
Purchase Stock and related documents
being executed concurrently with this
agreement in the event that, on or
before August 28, 1992, Borrower issues
additional shares of its Preferred Stock
or its Common Stock, in a transaction in
which at least $500,000 is raised, at a
price per share higher than $5 per share
(the lowest of such prices being
referred to herein as the "New Price Per
Share"), Borrower shall give prompt
written notice thereof to Silicon, and
the Warrant and all documents relating
thereto shall be automatically deemed
modified so that (i) the number of
shares subject to the Warrant is equal
to $160,000 divided by the New Price Per
-4-
Silicon Valley Bank Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
Share, and (ii) the Silicon Price Per
Share is equal to the New Price Per
Share. Silicon and Borrower shall
execute and deliver appropriate
documentation to further evidence said
modifications, but said modifications
shall be fully effective notwithstanding
any failure to execute such
documentation.
4. Indebtedness. Without limiting any of
the foregoing terms or provisions of
this Agreement, Borrower shall not in
the future incur indebtedness for
borrowed money, except for (i)
indebtedness to Silicon, and (ii)
indebtedness incurred in the future for
the purchase price of or lease of
equipment in an aggregate amount not
exceeding $1,000,000 at any time
outstanding.
5. Initial audit The first, semi-annual
audit referred to in Section 4.5 of this
Agreement shall be completed within 120
days after the date hereof and the
results of the same shall be
satisfactory to Silicon.
6. Stock Pledge. Borrower shall
concurrently execute and deliver a
Pledge Agreement to Silicon, on
Silicon's standard form, granting
Silicon a security interest in 100% of
the outstanding stock of the Subsidiary
to secure all of the Obligations, and
Borrower shall cause said Pledge
Agreement to continue in full force and
effect at all times during the term of
this Agreement with respect to 100% of
the outstanding stock of the Subsidiary
now outstanding or hereafter issued and
100% of all options and warrants to
acquire stock of the Subsidiary
hereafter issued. Borrower represents
and warrants that there are no
outstanding options or warrants to
acquire stock of the Subsidiary.
7. Subordination. Borrower shall
concurrently cause Caithness/NCF and CNG
Cylinder Corp. to execute and deliver
Subordination Agreements in such form as
Silicon shall specify, subordinating to
the Obligations the indebtedness of the
Borrower to such persons, in the amounts
of not less than $3,764,200 and
$501,811, respectively, which Borrower
represents and warrants represent the
present unpaid balances of the
indebtedness of the Borrower to such
persons, and Borrower shall cause said
Subordination Agreements to continue in
full force and effect at all times
during the term of this Agreement.
8. Predecessor Partnership. Borrower
represents and warrants to Silicon that
all of the assets and liabilities of CNG
Cylinder Company of North America, L.P.
have been duly transferred to the
Borrower, and that such transfer was in
compliance with all applicable laws,
rules and regulations.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
---------------------------------
President and Vice President
By /s/ [Illegible]
---------------------------------
Secretary or Ass't Secretary
-5-
Silicon Valley Bank Schedule to Loan and Security Agreement
--------------------------------------------------------------------------------
Silicon:
SILICON VALLEY BANK
By /s/ [Illegible]
---------------------------------
Title VP
------------------------------
-6-
--------------------------------------------------------------------------------
[LOGO] Silicon Valley
Bank Pledge Agreement
Pledgor: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx 00000
Date: June 2, 1992
THIS PLEDGE AGREEMENT ("Pledge Agreement"), dated the above date, is
entered into at between SILICON VALLEY BANK ("Silicon"), whose address is 0000
Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 0000-0000, and the pledgor named above
("Pledgor"), whose address is set forth above.
1. Pledge of Stock. Pledgor shall concurrently deliver to Silicon the stock
certificates and other securities listed on Exhibit A hereto, together with duly
executed instruments of assignment thereof to Silicon (which, together with all
replacements and substitutions therefor are hereinafter referred to as the
"Securities"). Pledgor hereby pledges to Silicon and grants Silicon a security
interest in the Securities, and all rights and remedies relating to, or arising
out of any and all of the foregoing, and all proceeds thereof (collectively,
the "Collateral") to secure the payment and performance of all debts, duties,
obligations, liabilities, representations, warranties and guaranties of Pledgor
to Silicon, heretofore, now, or hereafter made, incurred or crested, of every
kind and nature (collectively, the "Obligations"), including, but not limited
to, those arising under the Loan and Security Agreement of even date (the "Loan
Agreement"). Any and all stock dividends, rights, warrants, options, puts,
calls, conversion rights and other securities and any and all property and money
distributed or delivered with respect to the Securities or issued upon the
exercise of any puts, calls, conversion rights, options, warrants or other
rights included in or pertaining to the Securities shall be included in the term
"Securities" as used herein and shall be subject to this Pledge Agreement, and
Pledgor shall deliver the same to Silicon immediately upon receipt thereof
together with any necessary instruments of transfer; provided, however, that
until an Event of Default (as hereinafter defined) shall occur, Pledgor may
retain any dividends paid in cash or its equivalent, with respect to any stock
included in the Securities and any interest paid with respect to any bonds,
debentures or other evidences of indebtedness included in the Securities.
Pledgor hereby acknowledges that the acceptance of the pledge of the Securities
by Silicon shall not constitute a commitment of any kind by Silicon to permit
Pledgor to incur Obligations.
2. Voting and Other Rights. Pledgor shall have the right to exercise all
voting rights with respect to the Securities, provided no Event of Default (as
hereinafter defined) has occurred. Upon the occurrence of any Event of Default,
Silicon shall have the right (but not any obligation) to exercise all voting
rights with respect to the Securities. Provided no Event of Default has
occurred, Pledgor shall have the right to exercise all puts, calls, straddles,
conversion rights, options, warrants, and other rights and remedies with respect
to the Securities, provided Pledgor obtains the prior written consent of Silicon
thereto. Silicon shall have no responsibility or liability whatsoever for the
exercise of, or failure to exercise, any puts, calls, straddles, conversion
rights, options, warrants, rights to vote or consent, or other rights with
respect to any of the Securities. * an Event of Default has occurred, Silicon
shall have the right from time to time to transfer all or any part of the
Securities to Silicon's own name or the name of its nominee. *If
3. Representations and Warranties. Pledgor hereby represents and warrants
to Silicon that Pledgor now has, and throughout the term of this Agreement will
at all times have, good title to the Securities and the other Collateral, free
and clear of any and all security interests, liens and claims of any kind
whatsoever.*
*Pledgor further represents and warrants that the Collateral represents
100% of the outstanding stock of the issuer thereof, and Borrower shall cause
the Collateral at all times: to include 100% of the outstanding stock of said
issuer now outstanding or hereafter issued and 100% of all options and warrants
to acquire stock of said issuer hereafter issued. Borrower represents and
warrants that there are no outstanding options or warrants to acquire stock of
said Issuer.
-1-
--------------------------------------------------------------------------------
4. Events of Default. If any one or more of the following events shall
occur, any such event shall constitute an Event of Default and Pledgor shall
provide Silicon with immediate notice thereof, (a) Any warranty, representation,
statement, report or certificate made or delivered to Silicon by Pledgor or any
of Pledgors officers, employees or agents now or hereafter is incorrect, false,
untrue or misleading in any material respect; or (b) Pledgor shall fail to
promptly pay or perform when due part or all of any of the Obligations, or any
default or event of default shall occur under the Loan Agreement or any other
present or future instrument, document or agreement between Silicon and Pledgor.
5. Remedies. If an Event of Default shall occur, Pledgor shall give
immediate written notice thereof to Silicon. Upon the occurrence of an Event of
Default, and at any time thereafter, Silicon shall have the right, without
notice to or demand upon Pledgor, to exercise any one or more of the following
remedies: (a) accelerate and declare all or any part of the Obligations to be
immediately due, payable and performable, notwithstanding any deferred or
installment payments allowed by any agreement or instrument evidencing or
relating to any of the same; (b) sell or otherwise dispose of the Securities,
and other Collateral, at a public or private sale, for cash, or other property,
or on credit, with the authority to adjourn or postpone any such sale from time
to time without notice other than oral announcement at the time scheduled for
sale. Silicon may directly or through any affiliate purchase the Securities, and
other Collateral, at any such public disposition, and if permissible under
applicable law, at any private disposition. Pledgor and Silicon hereby agree
that it shall conclusively be deemed commercially reasonable for Silicon, in
connection with any sale or disposition of the Securities, to impose
restrictions and conditions as to the investment intent of a purchaser or
bidder, the ability of a purchaser or bidder to bear the economic risk of an
investment in the Securities, the knowledge and experience in business and
financial matters of a purchaser or bidder, the access of a purchaser or bidder
to information concerning the issuer of the Securities, as well as legend
conditions and stop transfer instructions restricting subsequent transfer of the
Securities, and any other restrictions or conditions which Silicon believes to
be necessary or advisable in order to comply with any state or federal
securities or other laws. Pledgor acknowledges that the foregoing restrictions
may result in fewer proceeds being received upon such sale then would otherwise
be the case. Pledgor hereby agrees to provide to Silicon any and all information
required by Silicon in connection with any sales of Securities by Silicon
hereunder. If after the occurrence of any Event of Default, Rule 144 promulgated
by the Securities and Exchange Commission (or any other similar rule) is
available for use by Silicon in connection with the sales of any Securities
hereunder, Pledgor agrees not to utilize Rule 144 in the sale of any securities
held by Pledgor of the same class as the Securities, without the prior written
consent of Silicon. Any and all attorneys' fees, expenses, costs, liabilities
and obligations incurred by Silicon in connection with the foregoing shall be
added to and become a part of the Obligations and shall be due from Pledgor to
Silicon upon demand.
6. Remedies, Cumulative; No Waiver. The failure of Silicon to enforce any
of the provisions of this Agreement at any time or for any period of time shall
not be construed to be a waiver of any such provision or the right thereafter to
enforce the same. All remedies hereunder shall be cumulative and shall be in
addition to all rights, powers and remedies given to Silicon by law.
7. Term. This Agreement and Silicon's rights hereunder shall continue in
full force and effect until all of the Obligations have been fully paid,
performed and discharged and the Loan Agreement and all other agreements between
Borrower and Silicon have terminated. Upon termination, Silicon shall return the
Collateral to Pledgor, with any necessary instruments of transfer.
8. General Provisions. This Agreement and the documents referred to herein
are the entire and only agreements between Pledgor and Silicon with respect 10
the subject matter hereof, and all representations, warranties, agreements, or
undertakings heretofore or contemporaneously made, with respect to the subject
matter hereof, which are not set forth herein or therein, are superseded hereby.
The terms and provisions hereof may not be waived, altered, modified, or amended
except in a writing executed by Pledgor and Silicon. All rights, benefits and
privileges hereunder shall inure to the benefit of and be enforceable by Silicon
and its successors and assigns and shall be binding upon Pledgor and its
successors and assigns; provided that Pledgor may not transfer any of its rights
hereunder without the prior written consent of Silicon. Paragraph headings are
used herein for convenience only. Pledgor acknowledges that the same may not
describe completely the subject matter of the applicable paragraph, and the same
shall not be used in any manner to construe, limit, define or interpret any term
or provision hereof. Pledgor shall upon demand reimburse Silicon for all costs,
fees and expenses (including without limitation attorneys' fees, whether or not
suit be brought), which are incurred by Silicon in connection with, or arising
out of, this agreement. This Agreement and all acts and transactions pursuant
hereto and the rights and obligations of the parties hereto shall be governed,
construed, and interpreted in accordance with the internal laws (and not
conflict of laws rules) of the State of California. Pledgor hereby agrees that
all actions or proceedings relating directly or indirectly hereto may, at the
option of Silicon, be litigated in courts located within said State, and Pledgor
hereby expressly consents to the jurisdiction of any such court and consents to
the service of process in any such action or proceeding by personal delivery or
by certified or registered mailing directed to Pledgor at its last address known
to Silicon.
9. Mutual Waiver Rights to Jury Trial. SILICON AND PLEDGOR 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: (i) THIS
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--------------------------------------------------------------------------------
AGREEMENT; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN
SILICON AND PLEDGOR, OR (iii) ANY CONDUCT, ACTS OR OMISSIONS OF SILICON OR
PLEDGOR OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY
OTHER PERSONS AFFILIATED WITH SILICON OR PLEDGOR; IN EACH OF THE FOREGOING
CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
PLEDGOR:
Natural Gas Vehicle Systems, Inc.
By /s/ [Illegible]
-----------------------------
President or Vice President
By /s/ [Illegible]
-----------------------------
Secretary or Ass't Secretary
SILICON:
SILICON VALLEY BANK
By /s/ [Illegible]
-----------------------------
Title VP
---------------------------
25,320
Exhibit A
1,000 shares of Common Stock of NGV
Development Company, Inc.
-3-
STOCK ASSIGNMENT
SEPARATE FROM CERTIFICATE
For Value Received, Natural Gas Vehicle Systems, Inc. hereby sells, assigns
and transfers unto Silicon Valley Bank ONE THOUSAND (1,000) Shares of the Common
Stock of NGV Development Company, Inc. standing in its name on the books of said
corporation represented by Certificate No. ___________ herewith, and do hereby
irrevocably constitute and appoint ___________________________ attorney to
transfer the said stock on the books of the within named Company with full power
of substitution in the premises.
IMPORTANT: The Signature to this assignment must correspond with the name as
written upon the face of the certificate in every particular without alteration
or enlargement or any change whatsoever.
Natural Gas Vehicle Systems, Inc.
By /s/ [Illegible]
---------------------------------
President or Vice-President
By /s/ [Illegible]
---------------------------------
Secretary or Ass't Secretary
--------------------------------------------------------------------------------
[LOGO] Silicon Valley Bank
Registration Rights Agreement
Issuer: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx
Date: June 2, 1992
THIS REGISTRATION RIGHTS AGREEMENT is entered into as of the above date by and
between SILICON Valley BANK ("Purchaser"), whose address is 0000 Xxxxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000-0000 and the above Company, whose address is set
forth above.
RECITALS
A. Concurrently with the execution of this Agreement, the Purchaser is
purchasing from the Company a Warrant to Purchase Stock (the "Warrant") pursuant
to which Purchaser has the right to acquire from the Company the Shares (as
defined in the Warrant).
B. By this Agreement, the Purchaser and the Company desire to set forth the
registration rights of the Shares all as provided herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Registration Rights. The Company covenants and agrees as follows:
1.1 Definitions. For purposes of this Section 1:
(a) The term "register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933, as amended (the
"Securities Act"), and the declaration or ordering of effectiveness of such
registration Statement or document.
(b) The term "Registrable Securities" means (i) the Shares (if Common
Stock) or all shares of Common Stock of the Company issuable or issued upon
conversion of the Shares and (ii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
which is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, any stock referred to in (i).
(c) The terms "Holder" or "Holders" means the Purchaser or qualifying
transferees under subsection 1.8 hereof who hold Registrable Securities.
(d) The term "SEC" means the Securities and Exchange Commission.
1.2 Company Registration.
(a) Registration. If at any time or from time to time, the Company shall
determine to register any of its securities, for its own account or the account
of any of its shareholders, other than a registration on Form S-1 or S-8
relating solely to employee stock option or purchase plans, or a registration on
Form S-4 relating solely to an SEC Rule 145 transaction, or a registration on
any other form (other than Form X-0, X-0, X-0 or S-18, or their successor forms)
or any successor to such forms, which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale Of Registrable Securities, the Company will:
(i) promptly give to each Holder written notice thereof (which shall
include a list of the jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or other State securities
laws); and
(ii) include in such registration (and compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within 30 day: after receipt of such written notice from the
Company, by any Holder or Holders, except as set forth in subsection 12(b)
below.
(b) Underwriting. If the registration of which the Company gives notice is
for a registered public offering involving an underwriting, the Company shall so
advise
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the Holders as a part of the written notice given pursuant to subsection
1.2(a)(i). In such event the right of any Holder to registration pursuant to
this subsection 1.2 shall be conditioned upon such holders participation in such
underwriting and the inclusion of such Holder1s Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company and
the other shareholders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company.
1.3 Expenses of REgistration. All expenses incurred in connection with any
registration, qualification or compliance pursuant to this Section 1 including
without limitation, all registration, filing and qualification fees, printing
expenses, fees and disbursements of counsel for the Company and expenses of any
special audits incidental to or required by such registration, shall be borne by
the Company except the Company shall not be required to pay underwriters fees,
discounts or commissions relating to Registrable Securities. All expenses of any
registered offering not otherwise borne by the Company shall be borne pro rata
among the Holders participating in the offering and the Company.
1.4 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this
Registration Rights Agreement, the Company will keep each Holder participating
therein advised in writing as to the initiation of each registration,
qualification and compliance and as to the completion thereof. Except as
otherwise provided in subsection 12, at its expense the Company will:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective, and, upon the request of the Holders of a
majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to 120 days.
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration Statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act or the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
1.5 Indemnification.
(a) The Company will indemnify each Holder of Registrable Securities and
each of its officers, directors and partners, and each person controlling such
Holder, with respect to which such registration, qualification or compliance has
been effected pursuant to this Rights Agreement, and each underwriter, if any,
and each person who controls any underwriter of the Registrable Securities held
by or issuable to such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereto) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, or any violation or
alleged violation by the Company of the Securities Act, the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any state securities law applicable
to the Company or any rule or regulation promulgated under the Securities Act,
the Exchange Act or any such state law and relating to action or inaction
required of the Company in connection with any such registration, qualification
of compliance, and will reimburse each such Holder, each of its officers,
directors and partners, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, within a
reasonable amount of time after incurred for any reasonable legal and any other
expenses incurred in connection with investigating, defending or settling any
such claim, loss, damage, liability or action; provided, however, that the
indemnity agreement contained in this subsection 1.5(a) shall not apply to
amounts paid in settlement of any such claim, loss, damage, liability, or
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--------------------------------------------------------------------------------
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld); and provided further, that the
Company will not be liable in any such case, the extent that any such claim,
loss, damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by an
instrument duly executed by such Molder or underwriter specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by or issuable to such
Holder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company within the meaning of the Securities Act, and each other such
Holder, each of its officers, directors and partners and each person controlling
such Holder, against all claims, losses, expenses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
the Company, such Holders, such directors, officers, partners, persons or
underwriters for any reasonable legal or any other expenses incurred in
connection with investigating, defending or settling any such claim, loss,
damage, liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder
specifically for use therein; provided, however, that the indemnity agreement
contained in this subsection 1.5(b) shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably withheld); and provided further, that the total amount for
which any Holder shall be liable under this subsection 1.5(b) shall not in any
event exceed the aggregate proceeds received by such Holder from the sale of
Registrable Securities held by such Holder in such registration.
(c) Each party entitled to indemnification under this subsection l.5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may he sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense; and provided further, that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying of its
obligations hereunder, unless such failure resulted in prejudice to the
Indemnifying Party; and provided further, that an Indemnified Party (together
with all other Indemnified Parties which may be represented without conflict by
one counsel) shall have the right to retain one separate counsel, with the fees
and expenses to be paid by the Indemnifying Party, if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between such
Indemnified Party and any other party represented by such counsel in such
proceeding. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
1.6 Information by Holder. Any Holder or Holders of Registrable Securities
included in any registration shall promptly furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to herein.
1.7 Rule 144 Reporting. With a view to making available to Holders the
benefits of certain rules and regulations of the SEC which may permit the sale
of the Registrable Securities to the public without registration, the Company
agrees at all times to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, after 90 days after the effective date
of the first registration filed by the Company for an offering of its securities
to the general public;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements); and
(c) so long as a Holder owns any Registrable Securities, to furnish to such
Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
90 days after the effective date of the first registration statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements), a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents so filed by the
Company as the Holder may reasonably request in complying with any rule or
regulation of the SEC allowing the Holder to sell any such securities without
registration.
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1.8 Transfer of Registration Rights. Holders' rights to cause the Company
to register their Securities and keep information available, granted to them by
the Company under subsections 1.2 and 1.7 may be assigned to a transferee or
assignee of a Holder's Registrable Securities not sold to the public, provided,
that the Company is given written notice by such Holder at the time of or within
a reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
registration rights are being assigned. The Company may prohibit the transfer of
any Holders' rights under this subsection 1.8 to any proposed transferee or
assignee who the Company reasonably believes is a competitor of the Company.
2. General.
2.1 Waivers and Amendments. With the written consent of the record or
beneficial holders of at least a majority of the Registrable Securities, the
obligations of the Company and the rights of the Holders of the Registrable
Securities under this agreement may be waived (either generally or in a
particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board of Directors, may enter into
a supplementary agreement for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement;
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities. Upon the effectuation of
each such waiver, consent, agreement of amendment or modification, the Company
shall promptly give written notice thereof to the record holders of the
Registrable Securities who have not previously consented thereto in writing.
This Agreement or any provision hereof may be changed, waived, discharged or
terminated only by a statement in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought, except to
the extent provided in this subsection 2.1.
2.2 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of California as such laws are applied to agreements between
California residents entered into and to be performed entirely within
California. shall be mailed by first class mail, postage prepaid, certified or
registered mail, return receipt requested, addressed (a) if to Holder, at such
Holder's address as set forth in the heading to this Agreement, or at such other
address as such Holder shall have furnished to the Company in writing, or (b) if
to the Company, at the Company's address set forth in the heading to this
Agreement, or at such other address as the Company shall have furnished to the
Holder in writing.
2.3 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
2.4 Entire Agreement. Except as set forth below, this Agreement and the
other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
2.5 Notices, etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Holder, at such Holder's address as set forth in the heading
to this Agreement, or at such other address as such Holder shall have furnished
to the Company in writing, or (b) if to the Company, at the Company's address
set forth in the heading to this Agreement, or at such other address as the
Company shall have furnished to the Holder in writing.
2.6 Severability. In case any provision of this Agreement shall be invalid,
illegal, or unenforceable, the validity, legality and enforceability of the
remaining provisions of this Agreement or any provision of the other Agreements
shall not in any way be affected or impaired thereby.
2.7 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
2.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
Company:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
-------------------------------
President or Vice President
By /s/ [Illegible]
-------------------------------
Purchaser:
SILICON VALLEY BANK
By
-------------------------------
Title
----------------------------
25,321
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[LOGO] Silicon Valley Bank
Subordination Agreement
Creditor: Borrower:
Caithness/NCF Company, Natural Gas Vehicle Systems, Inc.
a California joint venture
0000 Xxxxxx Xxxxxxxxxx Xxxxxx Date: June 2, 1992
Xxxx Xxxxx, Xxxxxxxxxx 00000
This Subordination Agreement is entered into between SILICON VALLEY BANK
("Silicon") and the creditor named above (the "Creditor").
1. Subordination. To induce Silicon in its discretion to extend credit to
the above-named borrower (the "Borrower") at any time, in such manner, upon such
terms and for such amounts as may be mutually agreeable to Silicon and the
Borrower (but without obligation on Silicon's part to do so), the Creditor
hereby agrees to subordinate and does hereby subordinate payment by the Borrower
of any and all indebtedness of the Borrower, now or hereafter incurred, created
or evidenced, to the Creditor, however such indebtedness may be hereafter
extended, renewed or evidenced (together with all collateral, security and
guarantees, if any, for the payment of any such indebtedness) (collectively, the
"Junior Debt"), to the payment to Silicon of any and all present and future
indebtedness, liabilities, guarantees and other obligations, of every kind and
description, of the Borrower to Silicon (collectively, the "Senior Debt"), and
the Creditor agrees not to ask for, demand, xxx for, take or receive any
payments with respect to all or any part of the Junior Debt or any security
therefor, unless and until all of the Senior Debt have been paid and performed
in full, except that, so long as all financial covenants of the Borrower to
Silicon are met both before and immediately after giving effect to the following
payments, and so long as no default or event of default has occurred under any
document, instrument or agreement evidencing, securing or relating to the Senior
Debt both before and after giving effect to the following payments and provided
that the Term Loan Extension Conditions set forth in Section 5.1 of the Schedule
to the Loan and Security Agreement between Silicon and the Borrower dated June
2, 1992 have been met, Creditor may accept payment of the following amounts on
the Junior Debt.
Payment in accordance with the terms of the
Junior Debt (but without the effect of rights of
acceleration on default or other events)
The word "indebtedness" is used herein in its most comprehensive sense and
includes without limitation any and all present and future loans, advances,
credit, debts, obligations, liabilities, representations, warranties, and
guarantees, of any kind and nature, absolute or contingent, liquidated or
unliquidated, and individual or joint. Creditor represents and warrants to
Silicon that the Borrower is now indebted to the Creditor in the following
amounts under the following described notes and/or documents and that the same
is all outstanding indebtedness owing from the Borrower to the Creditor:
$3,764,200 under Agreement dated__________________
2 Distribution of Assets. The Creditor further agrees that upon any
distribution of the assets or readjustment of the indebtedness of the Borrower
whether by reason of liquidation, composition, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding involving the readjustment of all or any of the Junior Debt, or the
application of the assets of the Borrower to the payment or liquidation thereof,
Silicon shall be entitled to receive payment in full of all of the Senior Debt
prior to the payment of all or any part of the Junior Debt, and in order to
enable Silicon to enforce its rights hereunder in any such action or proceeding,
Silicon is hereby irrevocably authorized and empowered in its discretion (but
without any
-1-
Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
obligation on Silicon's part) to make and present for and on behalf of the
Creditor such proofs of claim against the Borrower on account of the Junior Debt
as Silicon may deem expedient or proper and to vote such proofs of claim in any
such proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be paid or
issued and to apply same on account of the Senior Debt. The Creditor further
agrees to execute and deliver to Silicon such assignments or other instruments
as may be required by Silicon in order to enable Silicon to enforce any and all
such claims and to collect any and all dividends or other payments or
disbursements which may be made at any time on account of all and any of the
Junior Debt.
3. Transfer of Subordinated Debt. The Creditor shall not sell, pledge,
assign or otherwise transfer, at any time while this Agreement remains in
effect, any rights, claim or interest of any kind in or to any of the Junior
Debt, either principal or interest, without first notifying Silicon and making
such transfer expressly subject to this Subordination Agreement in form and
substance satisfactory to Silicon. The Creditor represents and warrants to
Silicon that the Creditor has not sold, pledged, assigned or otherwise
transferred any of the Junior Debt, or any interest therein or collateral or
security therefor to any other person. The Creditor will concurrently endorse
all notes and other written evidence of the Junior Debt with a statement that
they are subordinated to the Senior Debt pursuant to the terms of this
Agreement, in such form as Silicon shall require, and the Creditor will exhibit
the originals of such notes and other written evidence of the Junior Debt to
Silicon so that Silicon can confirm that such endorsement has been made (but no
failure to do any of the foregoing shall affect the subordination of the Junior
Debt provided for herein, which shall be fully effective upon execution of this
Agreement).
4. Silicon's Rights. This is a continuing agreement of subordination and
Silicon may continue, without notice to the Creditor, to extend credit or other
accommodation or benefit and loan monies to or for the account of the Borrower
in reliance hereon. Silicon may at any time, in its discretion, renew or extend
the time of payment of all or any Senior Debt, modify the Senior Debt and any
terms or provisions thereof or of any agreement relating thereto, waive or
release any collateral which may be held therefor at any time, and make and
enter into any such agreement or agreements as Silicon may deem proper or
desirable relating to the Senior Debt, without notice to or further consent from
the Creditor and without any manner impairing or affecting this Agreement or any
of Silicon's rights hereunder. The Creditor waives notice of acceptance hereof,
notice of the creation of any Senior Debt, the giving or extension of any credit
by Silicon to the Borrower, or the taking, waiving or releasing of any security
therefor, or the making of any modifications, and the Creditor waives
presentment, demand, protest, notice of protest, notice of default, and all
other notices to which the Creditor might otherwise be entitled.
5. Mutual Waiver of Jury Trial. SILICON AND CREDITOR EACH HEREBY WAVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND CREDITOR; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF SILICON OR CREDITOR OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
SILICON OR CREDITOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
6. General. This Agreement sets forth in full all of the representations
and agreements of the parties with respect to the subject matter hereof and
supersedes all prior discussions, representations, agreements and understandings
between the parties. This Agreement may not be modified or amended, nor may any
rights hereunder be waived, except in a writing signed by the parties hereto. In
the event of any litigation between the parties based upon, arising out of, or
in any way relating to this Agreement, the prevailing party shall be entitled to
recover all of his costs and expenses (including without limitation attorneys'
fees) from the non-prevailing party. The parties agree to cooperate fully with
each other and take all further actions and execute all further documents from
time to time as may be reasonably necessary to carry out the purposes of this
Agreement. At Silicon's option, all actions and proceedings based upon, arising
out of or relating in any way directly or indirectly to, this Agreement shall be
litigated exclusively in courts located within Orange County, California, and
Creditor consents to the jurisdiction of any such court and consents to the
service of process in any such action or proceeding by personal delivery,
first-class mail, or any other method permitted by law, and waives any and all
rights to transfer or change the venue of any such action or proceeding to any
court located outside Orange County, California. This Agreement is being entered
into, and shall be governed by the laws of the State of California.
"Subordinating Creditor:"
Caithness/NCF Company, a California joint venture
By ____________________________
Xxxxxx X. Xxxxxx, Chairman
-2-
Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
obligation on Silicon's part) to make and present for and on behalf of the
Creditor such proofs of claim against the Borrower on account of the Junior Debt
as Silicon may deem expedient or proper and to vote such proofs of claim in any
such proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be paid or
issued and to apply same on account of the Senior Debt. The Creditor further
agrees to execute and deliver to Silicon such assignments or other instruments
as may be required by Silicon in order to enable Silicon to enforce any and all
such claims and to collect any and all dividends or other payments or
disbursements which may be made at any time on account of all and any of the
Junior Debt.
3. Transfer of Subordinated Debt. The Creditor shall not sell, pledge,
assign or otherwise transfer, at any time while this Agreement remains in
effect, any rights, claim or interest of any kind in or to any of the Junior
Debt, either principal or interest, without first notifying Silicon and making
such transfer expressly subject to this Subordination Agreement in form and
substance satisfactory to Silicon. The Creditor represents and warrants to
Silicon that the Creditor has not sold, pledged, assigned or otherwise
transferred any of the Junior Debt, or any interest therein or collateral or
security therefor to any other person. The Creditor will concurrently endorse
all notes and other written evidence of the Junior Debt with a statement that
they are subordinated to the Senior Debt pursuant to the terms of this
Agreement, in such form as Silicon shall require, and the Creditor will exhibit
the originals of such notes and other written evidence of the Junior Debt to
Silicon so that Silicon can confirm that such endorsement has been made (but no
failure to do any of the foregoing shall affect the subordination of the Junior
Debt provided for herein, which shall be fully effective upon execution of this
Agreement).
4. Silicon's Rights. This is a continuing agreement of subordination and
Silicon may continue, without notice to the Creditor, to extend credit or other
accommodation or benefit and loan monies to or for the account of the Borrower
in reliance hereon. Silicon may at any time, in its discretion, renew or extend
the time of payment of all or any Senior Debt, modify the Senior Debt and any
terms or provisions thereof or of any agreement relating thereto, waive or
release any collateral which may be held therefor at any time, and make and
enter into any such agreement or agreements as Silicon may deem proper or
desirable relating to the Senior Debt, without notice to or further consent from
the Creditor and without any manner impairing or affecting this Agreement or any
of Silicon's rights hereunder. The Creditor waives notice of acceptance hereof,
notice of the creation of any Senior Debt, the giving or extension of any credit
by Silicon to the Borrower, or the taking, waiving or releasing of any security
therefor, or the making of any modifications, and the Creditor waives
presentment, demand, protest, notice of protest, notice of default, and all
other notices to which the Creditor might otherwise be entitled.
5. Mutual Waiver of Jury Trial. SILICON AND CREDITOR EACH HEREBY WAVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND CREDITOR; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF SILICON OR CREDITOR OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
SILICON OR CREDITOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
6. General. This Agreement sets forth in full all of the representations
and agreements of the parties with respect to the subject matter hereof and
supersedes all prior discussions, representations, agreements and understandings
between the parties. This Agreement may not be modified or amended, nor may any
rights hereunder be waived, except in a writing signed by the parties hereto. In
the event of any litigation between the parties based upon, arising out of, or
in any way relating to this Agreement, the prevailing party shall be entitled to
recover all of his costs and expenses (including without limitation attorneys'
fees) from the non-prevailing party. The parties agree to cooperate fully with
each other and take all further actions and execute all further documents from
time to time as may be reasonably necessary to carry out the purposes of this
Agreement. At Silicon's option, all actions and proceedings based upon, arising
out of or relating in any way directly or indirectly to, this Agreement shall be
litigated exclusively in courts located within Orange County, California, and
Creditor consents to the jurisdiction of any such court and consents to the
service of process in any such action or proceeding by personal delivery,
first-class mail, or any other method permitted by law, and waives any and all
rights to transfer or change the venue of any such action or proceeding to any
court located outside Orange County, California. This Agreement is being entered
into, and shall be governed by the laws of the State of California.
"Subordinating Creditor:"
Caithness/NCF Company, a California joint venture
By /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, Chairman
STATE OF NEW YORK )
: ss:
COUNTY OF QUEENS )
On this 2nd day of June, 1992, before me personally came Xxxxxx X. Xxxxxx, to me
known and known to me to be the individual described in, and who executed the
foregoing instrument and he duly acknowledged to me that he executed the same.
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Certificate filed in New York County
Commission Expires November 27, 0000
-0-
Xxxxxxx Xxxxxx Bank Subordination Agreement
--------------------------------------------------------------------------------
BORROWER'S AGREEMENT
The undersigned Borrower hereby acknowledges receipt of a copy of the
foregoing Subordination Agreement and agrees not to pay any Junior Debt, except
as provided therein. In the event Borrower breaches this Agreement or any of the
provisions of the foregoing Subordination Agreement, Borrower agrees that, in
addition to all other rights and remedies Silicon has, all of the Senior Debt
shall, at Silicon's option and without notice or demand, become immediately due
and payable, unless Silicon expressly agrees in writing to waive such breach. No
waiver by Silicon of any breach shall be effective unless in writing signed by
one of Silicon's authorized officers, and no such waiver shall be deemed to
extend to or waive any other or subsequent breach. Borrower further agrees that
any default or event of default by Borrower on the Junior Debt or under any
present or future instrument or agreement between Borrower and the Creditor
shall constitute a default and event of default under all present and future
instruments and agreements between Borrower and Silicon. Borrower further agrees
that, at any time and from time to time, the foregoing Subordination Agreement
may be altered, modified or amended by Silicon and the Creditor without notice
to Borrower and without further consent by Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [ILLEGIBLE]
-----------------------------------
President
Accepted:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
------------------------------
Title VP
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
BORROWER'S AGREEMENT
The undersigned Borrower hereby acknowledges receipt of a copy of the
foregoing Subordination Agreement and agrees not to pay any Junior Debt, except
as provided therein. In the event Borrower breaches this Agreement or any of the
provisions of the foregoing Subordination Agreement, Borrower agrees that, in
addition to all other rights and remedies Silicon has, all of the Senior Debt
shall, at Silicon's option and without notice or demand, become immediately due
and payable, unless Silicon expressly agrees in writing to waive such breach. No
waiver by Silicon of any breach shall be effective unless in writing signed by
one of Silicon's authorized officers, and no such waiver shall be deemed to
extend to or waive any other or subsequent breach. Borrower further agrees that
any default or event of default by Borrower on the Junior Debt or under any
present or future instrument or agreement between Borrower and the Creditor
shall constitute a default and event of default under all present and future
instruments and agreements between Borrower and Silicon. Borrower further agrees
that, at any time and from time to time, the foregoing Subordination Agreement
may be altered, modified or amended by Silicon and the Creditor without notice
to Borrower and without further consent by Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
-----------------------------------
President
Accepted:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
------------------------------
Title VP
STATE OF NEW YORK )
: ss:
COUNTY OF QUEENS )
On this 2nd day of June, 1992, before me personally came Xxxxxx X. Xxxxxx, to me
known and known to me to be the individual described in, and who executed the
foregoing instrument and he duly acknowledged to me that he executed the same.
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Certificate filed in New York County
Commission Expires November 27, 1993
-3-
--------------------------------------------------------------------------------
[LOGO] Silicon Valley Bank
Subordination Agreement
Creditor: Borrower:
CNG Cylinder Corporation, Natural Gas Vehicle Systems, Inc.
a California corporation
0000 Xxxxxx Xxxxxxxxxx Xxxxxx Date: June 2, 1992
Xxxx Xxxxx, Xxxxxxxxxx 00000
This Subordination Agreement is entered into between SILICON VALLEY BANK
("Silicon") and the creditor named above (the "Creditor").
1. Subordination. To induce Silicon in its discretion to extend credit to
the above-named borrower (the "Borrower") at any time, in such manner, upon such
terms and for such amounts as may be mutually agreeable to Silicon and the
Borrower (but without obligation on Silicon's part to do so), the Creditor
hereby agrees to subordinate and does hereby subordinate payment by the Borrower
of any and all indebtedness of the Borrower, now or hereafter incurred, created
or evidenced, to the Creditor, however such indebtedness may be hereafter
extended, renewed or evidenced (together with all collateral, security and
guarantees, if any, for the payment of any such indebtedness) (collectively, the
"Junior Debt"), to the payment to Silicon of any and all present and future
indebtedness, liabilities, guarantees and other obligations, of every kind and
description, of the Borrower to Silicon (collectively, the "Senior Debt"), and
the Creditor agrees not to ask for, demand, xxx for, take or receive any
payments with respect to all or any part of the Junior Debt or any security
therefor, unless and until all of the Senior Debt have been paid and performed
in full, except that, so long as all financial covenants of the Borrower to
Silicon are met both before and immediately after giving effect to the following
payments, and so long as no default or event of default has occurred under any
document, instrument or agreement evidencing, securing or relating to the Senior
Debt both before and after giving effect to the following payments and provided
that the Term Loan Extension Conditions set forth in Section 5.1 of the Schedule
to the Loan and Security Agreement between Silicon and the Borrower dated June
2, 1992 have been met, Creditor may accept payment of the following amounts on
the Junior Debt.
Payment in accordance with the terms of the
Junior Debt (but without the effect of rights of
acceleration on default or other events)
The word "indebtedness" is used herein in its most comprehensive sense and
includes without limitation any and all present and future loans, advances,
credit, debts, obligations, liabilities, representations, warranties, and
guarantees, of any kind and nature, absolute or contingent, liquidated or
unliquidated, and individual or joint. Creditor represents and warrants to
Silicon that the Borrower is now indebted to the Creditor in the following
amounts under the following described notes and/or documents and that the same
is all outstanding indebtedness owing from the Borrower to the Creditor:
$501,811 under Agreement dated__________________
2. Distribution of Assets. The Creditor further agrees that upon any
distribution of the assets or readjustment of the indebtedness of the Borrower
whether by reason of liquidation, composition, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding involving the readjustment of all or any of the Junior Debt, or the
application of the assets of the Borrower to the payment or liquidation thereof,
Silicon shall be entitled to receive payment in full of all of the Senior Debt
prior to the payment of all or any part of the Junior Debt, and in order to
enable Silicon to enforce its rights hereunder in any such action or proceeding,
Silicon is hereby irrevocably authorized and empowered in its discretion (but
without any
-1-
Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
obligation on Silicon's part) to make and present for and on behalf of the
Creditor such proofs of claim against the Borrower on account of the Junior Debt
as Silicon may deem expedient or proper and to vote such proofs of claim in any
such proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be paid or
issued and to apply same on account of the Senior Debt. The Creditor further
agrees to execute and deliver to Silicon such assignments or other instruments
as may be required by Silicon in order to enable Silicon to enforce any and all
such claims and to collect any and all dividends or other payments or
disbursements which may be made at any time on account of all and any of the
Junior Debt.
3. Transfer of Subordinated Debt. The Creditor shall not sell, pledge,
assign or otherwise transfer, at any time while this Agreement remains in
effect, any rights, claim or interest of any kind in or to any of the Junior
Debt, either principal or interest, without first notifying Silicon and making
such transfer expressly subject to this Subordination Agreement in form and
substance satisfactory to Silicon. The Creditor represents and warrants to
Silicon that the Creditor has not sold, pledged, assigned or otherwise
transferred any of the Junior Debt, or any interest therein or collateral or
security therefor to any other person. The Creditor will concurrently endorse
all notes and other written evidence of the Junior Debt with a statement that
they are subordinated to the Senior Debt pursuant to the terms of this
Agreement, in such form as Silicon shall require, and the Creditor will exhibit
the originals of such notes and other written evidence of the Junior Debt to
Silicon so that Silicon can confirm that such endorsement has been made (but no
failure to do any of the foregoing shall affect the subordination of the Junior
Debt provided for herein, which shall be fully effective upon execution of this
Agreement).
4. Silicon's Rights. This is a continuing agreement of subordination and
Silicon may continue, without notice to the Creditor, to extend credit or other
accommodation or benefit and loan monies to or for the account of the Borrower
in reliance hereon. Silicon may at any time, in its discretion, renew or extend
the time of payment of all or any Senior Debt, modify the Senior Debt and any
terms or provisions thereof or of any agreement relating thereto, waive or
release any collateral which may be held therefor at any time, and make and
enter into any such agreement or agreements as Silicon may deem proper or
desirable relating to the Senior Debt, without notice to or further consent from
the Creditor and without any manner impairing or affecting this Agreement or any
of Silicon's rights hereunder. The Creditor waives notice of acceptance hereof,
notice of the creation of any Senior Debt, the giving or extension of any credit
by Silicon to the Borrower, or the taking, waiving or releasing of any security
therefor, or the making of any modifications, and the Creditor waives
presentment, demand, protest, notice of protest, notice of default, and all
other notices to which the Creditor might otherwise be entitled.
5. Mutual Waiver of Jury Trial. SILICON AND CREDITOR EACH HEREBY WAVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND CREDITOR; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF SILICON OR CREDITOR OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
SILICON OR CREDITOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
6. General. This Agreement sets forth in full all of the representations
and agreements of the parties with respect to the subject matter hereof and
supersedes all prior discussions, representations, agreements and understandings
between the parties. This Agreement may not be modified or amended, nor may any
rights hereunder be waived, except in a writing signed by the parties hereto. In
the event of any litigation between the parties based upon, arising out of, or
in any way relating to this Agreement, the prevailing party shall be entitled to
recover all of his costs and expenses (including without limitation attorneys'
fees) from the non-prevailing party. The parties agree to cooperate fully with
each other and take all further actions and execute all further documents from
time to time as may be reasonably necessary to carry out the purposes of this
Agreement. At Silicon's option, all actions and proceedings based upon, arising
out of or relating in any way directly or indirectly to, this Agreement shall be
litigated exclusively in courts located within Orange County, California, and
Creditor consents to the jurisdiction of any such court and consents to the
service of process in any such action or proceeding by personal delivery,
first-class mail, or any other method permitted by law, and waives any and all
rights to transfer or change the venue of any such action or proceeding to any
court located outside Orange County, California. This Agreement is being entered
into, and shall be governed by the laws of the State of California.
"Subordinating Creditor:"
CNG Cylinder Corporation
By _______________________________
Xxxxxx X. Xxxxxx, President
-2-
Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
obligation on Silicon's part) to make and present for and on behalf of the
Creditor such proofs of claim against the Borrower on account of the Junior Debt
as Silicon may deem expedient or proper and to vote such proofs of claim in any
such proceeding and to receive and collect any and all dividends or other
payments or disbursements made thereon in whatever form the same may be paid or
issued and to apply same on account of the Senior Debt. The Creditor further
agrees to execute and deliver to Silicon such assignments or other instruments
as may be required by Silicon in order to enable Silicon to enforce any and all
such claims and to collect any and all dividends or other payments or
disbursements which may be made at any time on account of all and any of the
Junior Debt.
3. Transfer of Subordinated Debt. The Creditor shall not sell, pledge,
assign or otherwise transfer, at any time while this Agreement remains in
effect, any rights, claim or interest of any kind in or to any of the Junior
Debt, either principal or interest, without first notifying Silicon and making
such transfer expressly subject to this Subordination Agreement in form and
substance satisfactory to Silicon. The Creditor represents and warrants to
Silicon that the Creditor has not sold, pledged, assigned or otherwise
transferred any of the Junior Debt, or any interest therein or collateral or
security therefor to any other person. The Creditor will concurrently endorse
all notes and other written evidence of the Junior Debt with a statement that
they are subordinated to the Senior Debt pursuant to the terms of this
Agreement, in such form as Silicon shall require, and the Creditor will exhibit
the originals of such notes and other written evidence of the Junior Debt to
Silicon so that Silicon can confirm that such endorsement has been made (but no
failure to do any of the foregoing shall affect the subordination of the Junior
Debt provided for herein, which shall be fully effective upon execution of this
Agreement).
4. Silicon's Rights. This is a continuing agreement of subordination and
Silicon may continue, without notice to the Creditor, to extend credit or other
accommodation or benefit and loan monies to or for the account of the Borrower
in reliance hereon. Silicon may at any time, in its discretion, renew or extend
the time of payment of all or any Senior Debt, modify the Senior Debt and any
terms or provisions thereof or of any agreement relating thereto, waive or
release any collateral which may be held therefor at any time, and make and
enter into any such agreement or agreements as Silicon may deem proper or
desirable relating to the Senior Debt, without notice to or further consent from
the Creditor and without any manner impairing or affecting this Agreement or any
of Silicon's rights hereunder. The Creditor waives notice of acceptance hereof,
notice of the creation of any Senior Debt, the giving or extension of any credit
by Silicon to the Borrower, or the taking, waiving or releasing of any security
therefor, or the making of any modifications, and the Creditor waives
presentment, demand, protest, notice of protest, notice of default, and all
other notices to which the Creditor might otherwise be entitled.
5. Mutual Waiver of Jury Trial. SILICON AND CREDITOR EACH HEREBY WAVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF,
OR IN ANY WAY RELATING TO: (I) THIS AGREEMENT; OR (II) ANY OTHER PRESENT OR
FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND CREDITOR; OR (III) ANY
CONDUCT, ACTS OR OMISSIONS OF SILICON OR CREDITOR OR ANY OF THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH
SILICON OR CREDITOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
6. General. This Agreement sets forth in full all of the representations
and agreements of the parties with respect to the subject matter hereof and
supersedes all prior discussions, representations, agreements and understandings
between the parties. This Agreement may not be modified or amended, nor may any
rights hereunder be waived, except in a writing signed by the parties hereto. In
the event of any litigation between the parties based upon, arising out of, or
in any way relating to this Agreement, the prevailing party shall be entitled to
recover all of his costs and expenses (including without limitation attorneys'
fees) from the non-prevailing party. The parties agree to cooperate fully with
each other and take all further actions and execute all further documents from
time to time as may be reasonably necessary to carry out the purposes of this
Agreement. At Silicon's option, all actions and proceedings based upon, arising
out of or relating in any way directly or indirectly to, this Agreement shall be
litigated exclusively in courts located within Orange County, California, and
Creditor consents to the jurisdiction of any such court and consents to the
service of process in any such action or proceeding by personal delivery,
first-class mail, or any other method permitted by law, and waives any and all
rights to transfer or change the venue of any such action or proceeding to any
court located outside Orange County, California. This Agreement is being entered
into, and shall be governed by the laws of the State of California.
"Subordinating Creditor:"
CNG Cylinder Corporation
By /s/ Xxxxxx X. Xxxxxx
----------------------------------
Xxxxxx X. Xxxxxx, Chairman
XXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Certified in New York County
Commission Expires January 31, 1994
/s/ Xxxxx Xxxxxxxx
-2-
Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
BORROWER'S AGREEMENT
The undersigned Borrower hereby acknowledges receipt of a copy of the
foregoing Subordination Agreement and agrees not to pay any Junior Debt, except
as provided therein. In the event Borrower breaches this Agreement or any of the
provisions of the foregoing Subordination Agreement, Borrower agrees that, in
addition to all other rights and remedies Silicon has, all of the Senior Debt
shall, at Silicon's option and without notice or demand, become immediately due
and payable, unless Silicon expressly agrees in writing to waive such breach. No
waiver by Silicon of any breach shall be effective unless in writing signed by
one of Silicon's authorized officers, and no such waiver shall be deemed to
extend to or waive any other or subsequent breach. Borrower further agrees that
any default or event of default by Borrower on the Junior Debt or under any
present or future instrument or agreement between Borrower and the Creditor
shall constitute a default and event of default under all present and future
instruments and agreements between Borrower and Silicon. Borrower further agrees
that, at any time and from time to time, the foregoing Subordination Agreement
may be altered, modified or amended by Silicon and the Creditor without notice
to Borrower and without further consent by Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By [Illegible]
------------------------------
President or Vice President
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
BORROWER'S AGREEMENT
The undersigned Borrower hereby acknowledges receipt of a copy of the
foregoing Subordination Agreement and agrees not to pay any Junior Debt, except
as provided therein. In the event Borrower breaches this Agreement or any of the
provisions of the foregoing Subordination Agreement, Borrower agrees that, in
addition to all other rights and remedies Silicon has, all of the Senior Debt
shall, at Silicon's option and without notice or demand, become immediately due
and payable, unless Silicon expressly agrees in writing to waive such breach. No
waiver by Silicon of any breach shall be effective unless in writing signed by
one of Silicon's authorized officers, and no such waiver shall be deemed to
extend to or waive any other or subsequent breach. Borrower further agrees that
any default or event of default by Borrower on the Junior Debt or under any
present or future instrument or agreement between Borrower and the Creditor
shall constitute a default and event of default under all present and future
instruments and agreements between Borrower and Silicon. Borrower further agrees
that, at any time and from time to time, the foregoing Subordination Agreement
may be altered, modified or amended by Silicon and the Creditor without notice
to Borrower and without further consent by Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
President
Accepted:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
----------------------------------
Title VP
XXXXX XXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Certified in New York County
Commission Expires January 31, 1994
[SEAL] /s/ Xxxxx Xxxxxxxx
-3-
--------------------------------------------------------------------------------
[LOGO] Silicon Valley Bank
Subordination Agreement
Borrower: Natural Gas Vehicle Systems, Inc.
Subordinating
Creditor: Caithness Corporation
Date: June 2, 1992
This Subordination Agreement is executed by the above-named Subordinating
Creditor ("Subordinating Creditor") in favor of Silicon Valley Bank ("Silicon"),
whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00X00-0000, with
respect to the above-named Borrower ("Borrower"). In order to induce Silicon to
extend or continue to extend financing to the Borrower (but without obligation
on Silicon's part to do so), the Subordinating Creditor hereby agrees as
follows:
1. Subordination of Security Interest All security interests now or
hereafter acquired by Silicon in any or all of the Collateral (as defined
below), in which the Borrower now has or hereafter acquires any ownership,
leasehold or other interest shall at all times be prior and superior to any
lien, ownership interest, security interest or other interest or claim now held
or hereafter acquired by the Subordinating Creditor in the Collateral (the
"Subordinate Interest"). Said priority shall be applicable irrespective of the
time or order of attachment or perfection of any security interest or the time
or order of filing of any financing statements or other documents, or any
statutes, rules or law, or court decisions to the contrary. Upon any disposition
of any of the Collateral by Silicon, the Subordinating Creditor agrees, if
requested by Silicon, to execute and immediately deliver any and all releases or
other documents or agreements which Silicon deem necessary to accomplish a
disposition thereof free of the Subordinate Interest. Subordinating Creditor
represents and warrants to Silicon that Subordinating Creditor is the sole
holder of all security interests perfected by that certain UCC-1 Financing
Statement executed by the predecessor of Borrower, CNG Cylinder Company of North
America, L.P. and Subordinating Creditor and filed in the office of the
California Secretary of State on the following date, bearing the following file
number:
Date File No.
---- --------
November 18, 1991 91244309
2. "Collateral." As used in this Agreement, "Collateral" shall mean all of
the following types of property, in which the Borrower now has or hereafter
acquires any ownership, leasehold or other interest, wherever located: (a) All
accounts, contract rights, chattel paper, letters of credit, documents,
securities, money, and instruments, and all other obligations now or in the
future owing to the Borrower; {b) All inventory, goods, merchandise, materials,
raw materials, work in process, finished goods, farm products, advertising,
packaging and shipping materials, supplies, and all other tangible Personal
property which is held for sale or lease or furnished under contracts of service
or consumed in the Borrower's business, and all warehouse receipts and other
documents; and (c) All equipment, including without limitation all machinery,
fixtures, trade fixtures, vehicles, furnishings, furniture, materials, tools,
machine tools, office equipment, computers and peripheral devices, appliances,
apparatus, parts, dies, and jigs; (d) All general intangibles including, but not
limited to, deposit accounts, goodwill, names, trade names, trademarks and the
goodwill of the business symbolized thereby, trade secrets, drawings,
blueprints, customer lists, patents, patent applications, copyrights, security
deposits, loan commitment fees, federal, state and local tax refunds and claims,
all rights in all litigation presently or hereafter pending for any cause or
claim (whether in contract, tort or otherwise), and all judgments now or
hereafter arising therefrom, all claims of Borrower against Silicon, all rights
to purchase or sell real or personal property, all rights as licensor or
licensee of any kind, all royalties, licenses, processes, telephone numbers,
proprietary information, purchase orders, and all insurance policies and claims
(including without limitation credit, liability, property and other insurance),
and all other rights, privileges and franchises of every kind; (e) All books and
records, whether stored on computers or otherwise
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
maintained; and (f) All substitutions, additions and accessions to any of the
foregoing, and all products, proceeds and insurance proceeds of the foregoing,
and all guaranties of and security for the foregoing; and all books and records
relating to any of the foregoing.
3. Disposition of Collateral. The Subordinating Creditor agrees that, until
Silicon have received payment in full of all indebtedness, liabilities,
guarantees and other obligations of the Borrower to Silicon, now existing or
hereafter arising (the "Silicon Debt"), Silicon may dispose of, and exercise any
other rights with respect to, any or all of the Collateral, free of the
Subordinate Interest, provided that the Subordinating Creditor retains any
rights it may have as a junior secured creditor with respect to the Surplus, if
any, arising from any such disposition or enforcement. The Subordinating
Creditor agrees that any funds of the Borrower which it obtains through the
exercise of any right of setoff or other similar right constitute Collateral,
and the Subordinating Creditor shall immediately pay such funds to Silicon to be
applied to the outstanding Silicon Debt.
4. Subordination of Debt. Subordinating Creditor hereby subordinates
payment by the Borrower of any and all indebtedness, liabilities, guarantees and
other obligations of the Borrower to Subordinating Creditor, now existing or
hereafter arising (collectively, the "Subordinated Debt"), to the payment to
Silicon, in full in cash, of all Silicon Debt, and Subordinating Creditor agrees
not to ask for, demand, xxx for, take or receive all or any part of the
Subordinated Debt nor any security therefor unless and until all of the Silicon
Debt has been paid and performed in full, in cash; provided that, so long as all
financial covenants of the Borrower to Silicon are met both before and
immediately after giving effect to the following payments, and so long as no
default or event of default has occurred under any document, instrument or
agreement evidencing, securing or relating to the Silicon Debt both before and
after giving effect to the following payments and provided that the Term Loan
Extension Conditions set forth in Section 5.1 of the Schedule to the Loan and
Security Agreement between Silicon and the Borrower dated June 2, 1992 have been
met, Subordinated Creditor may accept payment of the following amounts on the
Subordinated Debt:
Payment in accordance with the terms of the Subordinated
Debt (but without the effect of rights of acceleration on
default or other events)
Subordinating Creditor further agrees that upon any distribution of the assets
or readjustment of the indebtedess of the Borrower whether by reason of
liquidation, composition, bankruptcy, arrangement, receivership, assignment for
the benefit of creditors or any other action or proceeding involving the
readjustment of all or any of the Subordinating Debt, or the application of the
assets of the Borrower to the payment or liquidation thereof, Silicon shall be
entitled to receive payment in full of all of the Silicon Debt prior to the
payment of all or any part of the Subordinated Debt, and in order to enable
Silicon to enforce its rights hereunder in any such action or proceeding,
Silicon is hereby irrevocably authorized and empowered in its discretion (but
without any obligation on its part) to make and present for and on behalf of
Subordinating Creditor such proofs of claim against the Borrower on account of
the Subordinated Debt as Silicon may deem expedient or proper and to vote such
proofs of claim in any such proceeding and to receive and collect any and all
dividends or other payments or disbursements made thereon in whatever form the
same may be paid or issued and to apply same on account of the Silicon Debt.
Subordinating Creditor further agrees to execute and deliver to Silicon such
assignments or other instruments as may be required by Silicon in order to
enable Silicon to enforce any and all such claims and to collect any and all
dividends or other payments or disbursements which may be made at any time on
account of all and any of the Subordinated Debt, Subordinating Creditor shall
endorse all notes and other written evidence of the Subordinated Debt with a
statement that they are subordinated to the Silicon Debt pursuant to the terms
of this agreement, in such form as Silicon shall require, and Subordinating
Creditor will exhibit the originals of such notes and other written evidence of
the Subordinated Debt to Silicon so that Silicon can confirm that such
endorsement has been made, but this Subordination Agreement shall be fully
effective, even if no such endorsement is made.
5. Modifications to Silicon Debt; Waivers. Until Silicon have received
payment in full of all Silicon Debt, the Subordinating Creditor agrees that, in
addition to any other rights that Silicon may have at law or in equity, Silicon
may at any time, and from time to time, without the Subordinating Creditor's
consent and without notice to the Subordinating Creditor, renew, extend or
increase any of the Silicon Debt or that of any other person at any time
directly or indirectly liable for the payment of any silicon Debt, accept
partial payments of the Silicon Debt, settle, release (by operation of law or
otherwise), compound, compromise, collect or liquidate any of the Silicon Debt,
make loans or advances to the Borrower secured in whole or in part by the
Collateral or refrain from making any loans or advances to the Borrower, change,
waive, alter or vary the interest charge on, or any other terms or provisions of
the Silicon Debt or any present or future instrument, document or agreement
between Silicon and the Borrower, release, exchange, fail to perfect, delay the
perfection of, fail to resort to, or realize upon any Collateral, and take any
other action or omit to take any other action with respect to the Silicon Debt
or the Collateral as Silicon deem necessary or advisable in Siliconr sole
discretion, The Subordinating Creditor waives any right to require Silicon to
marshal any assets in favor of the Subordinating Creditor or against or in
payment of any or all of the Silicon Debt. Subordinating Creditor further waives
any defense arising by reason of any claim or defense based upon an election of
remedies by Silicon which in any manner impairs, affects, reduces, releases,
destroys and/or extinguishes the
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
Subordinating Creditor's subrogation rights, rights to proceed against the
Borrower for reimbursement, and/or any other rights of the Subordinating
Creditor.
6. Default. The Subordinating Creditor shall promptly give Silicon written
notice of any default or event of default under any document, instrument or
agreement evidencing, securing or relating to any of the Subordinated Debt, and,
until the Silicon Debt has been paid and performed in full, the Subordinating
Creditor shall not collect, take possession of, foreclose upon, or exercise any
other rights or remedies with respect to, the Collateral, judicially or
non-judicially, or attempt to do any of the foregoing.
7. No Commitment. It is understood and agreed that this Agreement shall in
no way be construed as a commitment or agreement by Silicon to continue
financing arrangements with the Borrower and that Silicon may terminate such
arrangements at any time, in accordance with Silicon's agreements with the
Borrower.
8. No Contest. Subordinating Creditor agrees not to contest the validity,
perfection, priority or enforceability of Silicon's security interest in the
Collateral or the Silicon Debt.
9. Financial Condition of Borrower. The Subordinating Creditor is presently
informed of the financial condition of the Borrower and of all other
circumstances which a diligent inquiry would reveal and which bear upon the risk
of non-payment of the Silicon Debt and the Subordinated Debt. The Subordinating
Creditor covenants that it will continue to keep itself informed as to the
Borrower's financial condition and all other circumstances which bear upon the
risk of non-payment of the Silicon Debt and the Subordinated Debt. The
Subordinating Creditor waives any right to require Silicon to disclose to it any
information which Silicon may now or hereafter acquire concerning the Borrower.
10. Revivor. If, after payment of the Silicon Debt, the Borrower thereafter
becomes liable to Silicon on account of the Silicon Debt, or any payment made on
the Silicon Debt shall for any reason be returned by Silicon, this Agreement
shall thereupon in all respects become effective with respect to such subsequent
or reinstated Silicon Debt, without the necessity of any further act or
agreement between Silicon and the Subordinating Creditor.
11. Mutual Waiver of Jury Trial. Subordinating Creditor 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: (i) this Agreement; or (ii) any other
present or future instrument or agreement between Subordinating Creditor and
Silicon; or (iii) any conduct, acts or omissions of Subordinating Creditor or
Silicon or any of their directors, officers, employees, agents, attorneys or any
other persons affiliated with Subordinating Creditor or Silicon; in each of the
foregoing cases, whether sounding in contract or tort or otherwise.
12. General. The Subordinating Creditor agrees, upon Silicon's request, to
execute all such documents and instruments and take all such actions as Silicon
shall deem necessary or advisable in order to carry out the purposes of this
Agreement, including, without limitation appropriate amendments to financing
statements executed by the Borrower in favor of Subordinating Creditor in order
to refer to this Agreement (but this Agreement shall remain fully effective
notwithstanding any failure to execute any additional documents or instruments).
The word "indebtedness" is used in this agreement in its most comprehensive
sense and includes without limitation any and all present and future loans,
advances, credit, debts, obligations, liabilities, representations, warranties,
and guarantees, of any kind and nature, absolute or contingent, liquidated or
unliquidated, and individual or joint. Subordinating Creditor represents and
warrants that it has not heretofore transferred or assigned the Subordinated
Debt, the Subordinate Interest or any financing statement naming Borrower as
debtor and Subordinating Creditor as secured party, and that it will not do so
without prior written notice to Silicon and without making such transfer or
assignment expressly subject to this Agreement, This Agreement is solely for the
benefit of Silicon and Silicon's successors and assigns, and neither the
Borrower nor any other person shall have any right, benefit, priority or
interest under, or because of the existence of, this Agreement, All of Silicon's
rights and remedies hereunder and under applicable law are cumulative and not
exclusive. This Agreement sets forth in full the terms of agreement between the
parties with respect to the subject matter hereof, and may not be modified or
amended, nor may any rights hereunder be waived, except in a writing signed by
Silicon and the Subordinating Creditor. The Subordinating Creditor agrees to
reimburse Silicon, upon demand, for all costs and expenses (including reasonable
attorneys' fees) incurred by Silicon in enforcing this Agreement against
Subordinating Creditor, whether or not suit be brought, In the event of any
litigation between the parties based upon or arising out of this Agreement, the
prevailing party shall be entitled to recover all of its costs and expenses
(including without limitation attorneys fees) from the non-prevailing party.
This Agreement shall be construed in accordance with, and governed by, the laws
of the State of California. As a material part of the consideration to the
parties for entering into this Agreement, each party (i) agrees that all actions
and proceedings based upon, arising out of or relating in any way directly or
indirectly to, this Agreement shall be litigated exclusively in courts located
within Los Angeles County, California, (ii) consents to the jurisdiction of any
such court and consents to the service of process in any such action or
proceeding by personal delivery, first-class mail, or any other method permitted
by law, and (iii) waives any and all rights to transfer or change the venue of
any such action or proceeding to any court located outside Los Angeles County,
California. This Agreement shall be binding upon the Subordinating Creditor and
its successors and assigns and shall inure to the benefit of Silicon and
Silicon's successors and assigns.
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
13. ADDITIONAL PROVISIONS.
(a) The provisions of Section 4 of the Purchase, Resale and Security
Agreement dated October 1, 1991 between Borrower and Subordinating Creditor
shall not be operative so long as any of the Silicon Debt is outstanding, and
said Purchase, Resale and Security Agreement shall in all respects be subject to
all of the terms and provisions of this Subordination Agreement.
"Subordinating Creditor:"
CAITHNESS CORPORATION
By /s/ [Illegible]
----------------------------
Vice President
Address: 000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
CONSENT AND AGREEMENT OF BORROWER
The undersigned Borrower hereby approves of, agrees to and consents to all
of the terms and provisions of the foregoing Subordination Agreement and agrees
to be bound thereby and further agrees that any default or event of default by
the Borrower under any present or future instrument or agreement between the
Borrower and the Subordinating Creditor shall constitute an immediate default
and event of default under all present and future instruments and agreements
between the Borrower and Silicon. Borrower further agrees that, at any time and
from time to Lime, the foregoing Agreement may be altered, modified or amended
by Silicon and the Subordinating Creditor without notice to or the consent of
Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ Xxxxxx X. Xxxxxx
------------------------------
President
Accepted:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
------------------------------
Title VP
STATE OF NEW YORK )
: ss:
COUNTY OF QUEENS )
On this 2nd day of June, 1992, before me personally came Xxxxxx X. Xxxxxx, to me
known and known to me to be the individual described in, and who executed the
foregoing instrument and he duly acknowledged to me that he executed the same.
/s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Notary Public
XXXXXXX X. XXXXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in Queens County
Certificate filed in New York County
Commission Expires November 27, 1995
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Silicon Valley Bank Subordination Agreement
--------------------------------------------------------------------------------
13. ADDITIONAL PROVISIONS.
(a) The provisions of Section 4 of the Purchase, Resale and Security
Agreement dated October 1, 1991 between Borrower and Subordinating Creditor
shall not be operative so long as any of the Silicon Debt is outstanding, and
said Purchase, Resale and Security Agreement shall in all respects be subject to
all of the terms and provisions of this Subordination Agreement.
"Subordinating Creditor:"
CAITHNESS CORPORATION
By ___________________________
Vice President
Address: 000 Xxxxxxxx Xxxxx Xxxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
CONSENT AND AGREEMENT OF BORROWER
The undersigned Borrower hereby approves of, agrees to and consents to all
of the terms and provisions of the foregoing Subordination Agreement and agrees
to be bound thereby and further agrees that any default or event of default by
the Borrower under any present or future instrument or agreement between the
Borrower and the Subordinating Creditor shall constitute an immediate default
and event of default under all present and future instruments and agreements
between the Borrower and Silicon. Borrower further agrees that, at any time and
from time to Lime, the foregoing Agreement may be altered, modified or amended
by Silicon and the Subordinating Creditor without notice to or the consent of
Borrower.
Borrower:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [ILLEGIBLE]
------------------------------
President
Accepted:
SILICON VALLEY BANK
By /s/ [ILLEGIBLE]
------------------------------
Title VP
-4-
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED.
-------------------------
WARRANT TO PURCHASE STOCK
Warrant to Purchase Issue Date: June 2, 1992
32,000 Shares of the Expiration Date: June 2, 1997
Preferred Stock of Initial Exercise Price: $5 per share
Natural Gas Vehicle Systems, Inc.
THIS WARRANT CERTIFIES THAT, for the agreed upon value of $1.00 and for other
good and valuable consideration, SILICON VALLEY BANK ("Holder") is entitled to
purchase the number of fully paid and non-assessable shares of the class of
securities (the "Shares") of the corporation (the "Company") at the initial
exercise price per Share (the "Warrant Price") all as set forth above and as
adjusted pursuant to Article 2 of this Warrant, subject to the provisions and
upon the terms and conditions set forth of this Warrant.
ARTICLE 1. EXERCISE.
1.1 Method of Exercise. Holder may exercise this Warrant by delivering a
duly executed Notice of Exercise in substantially the form attached as Appendix
1 to the principal office of the Company. Unless Holder is exercising the
conversion right set forth in Section 1.2, Holder shall also deliver to the
Company a check for the aggregate Warrant Price for the Shares being purchased.
1.2 Conversion Right. In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this Warrant, in whole or in
part, into a number of Shares determined by dividing (a) the aggregate fair
market value of the Shares or other securities otherwise issuable upon exercise
of this Warrant minus the aggregate Warrant Price of such Shares by (b) the fair
market value of one Share. The fair market value of the Shares shall be
determined pursuant Section 1.4.
1.3 Alternative Stock Appreciation Right. At Holder's option, the Company
shall pay Holder the fair market value of the Shares issuable upon conversion of
this Warrant pursuant to Section 1.2 in cash in lieu of such Shares.
1.4 Fair Market Value. If the Shares are traded in a public market, the
fair market value of the Shares shall be the closing price of the Shares (or the
closing price of the Company's stock into which the Shares are convertible)
reported for the business day immediately before Holder delivers its Notice of
Exercise to the Company. If the Shares are not traded in a public market, the
Board of Directors of the Company shall determine fair market value in its
reasonable good faith judgment. The foregoing notwithstanding, if Holder advises
the Board of Directors in writing that Holder disagrees with such determination,
then the Company and Holder shall promptly agree upon a reputable investment
banking firm to undertake such valuation. If the valuation of such investment
banking firm is greater than that determined by the Board of Directors, then all
fees and expenses of such investment banking firm shall be paid by the Company.
In all other circumstances, such fees and expenses shall be paid by Holder.
1.5 Delivery of Certificate and New Warrant. Promptly after Holder
exercises or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not been fully
exercised or converted and has not expired, a new Warrant representing the
Shares not so acquired.
1.6 Replacement of Warrants. On receipt of evidence reasonably satisfactory
to the Company of the loss, theft, destruction or mutilation of this Warrant
and, in the case of loss, theft or destruction, on delivery of an indemnity
agreement reasonably satisfactory in form and amount to the Company or, in the
case of mutilation, or surrender and cancellation of this Warrant, the Company
at its expense shall execute and deliver, in lieu of this Warrant, a new warrant
of like tenor.
1.7 Repurchase on Sale. Merger or Consolidation of the Company.
1.7.1. "Acquisition". For the purpose of this Warrant, "Acquisition" means
any sale, license, or other disposition of all or substantially all of the
assets of the Company, or any reorganization, consolidation, or merger of the
Company where the holders of the Company's securities before the transaction
beneficially own less than 50% of the outstanding voting securities of the
surviving entity after the transaction.
1.7.2. Assumption of Warrant. If upon the closing of any Acquisition the
successor entity assumes the obligations of this Warrant, then this Warrant
shall be exercisable for the same securities, cash, and property as would be
payable for the Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for the
Acquisition and
-1-
subsequent closing. The Warrant Price shall be adjusted accordingly.
1.7.3. Nonassumption. If upon the closing of any Acquisition the successor
entity does not assume the obligations of this Warrant and Holder has not
otherwise exercised this Warrant in full, then the unexercised portion of this
Warrant shall be deemed to have been automatically converted pursuant to Section
1.2 and thereafter Holder shall participate in the acquisition on the same terms
as other holders of the same class of securities of the Company.
1.7.4. Purchase Right. Notwithstanding the foregoing, at the election of
Holder, the Company shall purchase the unexercised portion of this Warrant for
cash upon the closing of any Acquisition for an amount equal to (a) the fair
market value of any consideration that would have been received by Holder in
consideration of the Shares had Holder exercised the unexercised portion of this
Warrant immediately before the record date for determining the shareholders
entitled to participate in the proceeds of the Acquisition, less (b) the
aggregate Warrant Price of the Shares, but in no event less than zero.
ARTICLE 2. ADJUSTMENTS TO THE SHARES.
2.1 Stock Dividends Splits. Etc. If the Company declares or pays a dividend
on its common stock (or the Shares if the Shares are securities other than
common stock) payable in common stock, or other securities, subdivides the
outstanding common stock into a greater amount of common stock, or, if the
Shares are securities other than common stock, subdivides the Shares in a
transaction that increases the amount of common stock into which the Shares are
convertible, then upon exercise of this Warrant, for each Share acquired, Holder
shall receive, without cost to Holder, the total number and kind of securities
to which Holder would have been entitled had Holder owned the Shares of record
as of the date the dividend or subdivision occurred.
2.2 Reclassification Exchange or Substitution. Upon any reclassification,
exchange, substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion of this
Warrant, Holder shall be entitled to receive, upon exercise or conversion of
this Warrant, the number and kind of securities and property that Holder would
have received for the Shares if this Warrant had been exercised immediately
before such reclassification, exchange, substitution, or other event. Such an
event shall include any automatic conversion of the outstanding or issuable
securities of the Company of the same class or series as the Shares to common
stock pursuant to the terms of the Company's Articles of Incorporation upon the
closing of a registered public offering of the Company's common stock. The
Company or its successor shall promptly issue to Holder a new Warrant for such
new securities or other property. The new Warrant shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2 including, without limitation, adjustments to the
Warrant Price and to the number of securities or property issuable upon exercise
of the new Warrant. The provisions of this Section 2.2 shall similarly apply to
successive reclassifications, exchanges, substitutions, or other events.
2.3 Adjustments for Combinations, Etc. If the outstanding Shares are
combined or consolidated, by reclassification or otherwise, into a lesser number
of shares, the Warrant Price shall be proportionately increased.
2.4 Adjustments for Diluting Issuances. The Warrant Price and the number of
Shares issuable upon exercise of this Warrant or, if the Shares are Preferred
Stock, the number of shares of common stock issuable upon conversion of the
Shares, shall be subject to adjustment, from time to time in the manner set
forth on Exhibit A in the event of Diluting Issuances (as defined on Exhibit A).
2.5 No Impairment. The Company shall not, by amendment of its Articles of
Incorporation or through a reorganization, transfer of assets, consolidation,
merger, dissolution, issue, or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed under this Warrant by the Company, but shall at all times
in good faith assist in carrying out of all the provisions of this Article 2 and
in taking all such action as may be necessary or appropriate to protect Holder's
rights under this Article against impairment. If the Company takes any action
affecting the Shares or its common stock other than as described above that
adversely affects Holder's rights under this Warrant, the Warrant Price shall be
adjusted downward and the number of Shares issuable upon exercise of this
Warrant shall be adjusted upward in such a manner that the aggregate Warrant
Price of this Warrant is unchanged.
2.6 Fractional Shares. No fractional Shares shall be issuable upon exercise
or conversion of the Warrant and the number of Shares to be issued shall be
rounded down to the nearest whole Share. If a fractional share interest arises
upon any exercise or conversion of the Warrant, the Company shall eliminate such
fractional share interest by paying Holder amount computed by multiplying the
fractional interest by the fair market value of a full Share.
2.7 Certificate as to Adjustments. Upon each adjustment of the Warrant
Price, the Company at its expense shall promptly compute such adjustment, and
furnish Holder with a certificate of its Chief Financial Officer setting forth
such adjustment and the facts upon which such adjustment is based. The Company
shall, upon written request, furnish Holder a certificate setting forth the
Warrant Price in effect upon the date thereof and the series of adjustments
leading to such Warrant Price.
ARTICLE 3. REPRESENTATIONS AND COVENANTS OF THE COMPANY.
3.1. Representations and Warranties. The Company hereby represents and
warrants to the Holder as follows:
(a) The initial Warrant Price referenced on the first page of this Warrant
is not greater than (i) the price per share at which the Shares were last issued
in an arms-length transaction in which at least $500,000 of the Shares were sold
and (ii) the fair market value of the Shares as of the date of this Warrant
(b) All Shares which may be issued upon the exercise of the purchase right
represented by this Warrant, and all securities, if any, issuable upon
conversion of the Shares, shall, upon issuance, be duly authorized, validly
issued, fully paid and non-assessable, and free of any liens and encumbrances
except for restrictions on transfer provided for herein or under applicable
federal and state securities laws.
3.2 Notice of Certain Events. If the Company proposes at any time (a) to
declare any dividend or distribution upon its common stock, whether in cash,
property, stock, or other securities and whether or not a regular cash dividend;
(b) to offer for subscription pro rata to the holders of any class or series of
its stock any additional shares of stock of any class or series or other rights;
(c) to effect any reclassification or recapitalization of common stock; (d) to
merge or consolidate with or into any other corporation, or sell, lease,
license, or convey all or substantially all of its assets, or to liquidate,
dissolve or wind up; or (e) offer holders of registration rights the opportunity
to participate in an underwritten public offering of the company's securities
for cash, then, in connection with each such event, the Company shall give
Holder (1) at least 20 days prior written notice of the date on which a record
will be taken for such dividend, distribution, or subscription rights (and
specifying the date on which the holders of common stock will be entitled
thereto) or for determining rights to vote, if any, in respect of the matters
referred to in (c) and (d) above; (2) in the case of the matters referred to in
(c) and (d) above at least 20 days prior written notice of the date when the
same will take place (and specifying the date on which the holders of common
stock will be entitled to exchange their common stock for securities or other
property deliverable upon the occurrence of such event); and (3) in the case of
the matter referred to in (e) above, the same notice as is given to the holders
of such registration rights.
3.3 Information Rights. So long as the Holder holds this Warrant and/or any
of the Shares, the Company shall deliver to the Holder (a) promptly after
mailing, copies of all notices or other written communications to the
shareholders of the Company, (b) within ninety (90) days after the end of each
fiscal year of the Company, the annual audited financial statements of the
Company certified by independent public accountants of recognized standing and
(c) within forty-five (45) days after the end of each of the first three
quarters of each fiscal year, the Company's quarterly, unaudited financial
statements.
3.4 Registration Under Securities Act of 1933, as amended. The Company
agrees that the Shares or, if the Shares are convertible into common stock of
the Company, such common stock, shall be subject to the registration rights set
forth on Exhibit B, if attached.
ARTICLE 4. MISCELLANEOUS.
4.1 Term: Notice of Expiration. This Warrant is exercisable, in whole or in
part, at any time and from time to time on or before the Expiration Date set
forth above. The Company shall give Holder written notice of Holder's right to
exercise this Warrant in the form attached as Appendix 2 not more than 90 days
and not less than 30 days before the Expiration Date. If the notice is not so
given, the Expiration Date shall automatically be extended until 30 days after
the date the Company delivers the notice to Holder.
4.2 Legends. This Warrant and the Shares (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) shall be
imprinted with a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR PURSUANT TO RULE 144 OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE CORPORATION AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED.
4.3 Compliance with Securities Laws on Transfer. This Warrant and the
Shares issuable upon exercise this Warrant (and the securities issuable,
directly or indirectly, upon conversion of the Shares, if any) may not be
transferred or assigned in whole or in part without compliance with applicable
federal and state securities laws by the transferor and the transferee
(including, without limitation, the delivery of investment representation
letters and legal opinions reasonably satisfactory to the Company, H reasonably
requested by the Company). The Company shall not require Holder to provide an
opinion of counsel if the transfer is to an affiliate of Holder or if there is
no material question as to the availability of current information as referenced
in Rule 144(c), Holder represents that it has complied with Rule 144(d) and (e)
in reasonable detail, the selling broker represents that it has complied with
Rule 144(f), and the Company is provided with a copy of Holders notice of
proposed sale.
4.4 Transfer Procedure. Subject to the provisions of Section 4.2, Holder
may transfer all or part of this Warrant or the Shares issuable upon exercise of
this Warrant (or the securities issuable, directly or indirectly, upon
conversion of the Shares, if any) by giving the Company notice of the portion of
the Warrant being transferred setting forth the name, address and taxpayer
identification number of the transferee and surrendering this Warrant to the
Company for reissuance to the transferee(s) (and Holder if applicable). Unless
the Company is filing financial information with the SEC pursuant to the
Securities Exchange Act of 1934, the Company shall have the right to refuse to
transfer any portion of this Warrant to any person who directly competes with
the Company.
4.5 Notices. All notices and other communications from the Company to the
Holder, or vice versa, shall be deemed delivered and effective when given
personally or mailed by first-class registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company or the
Holder, as the case may be, in writing by the Company or such holder from time
to time.
4.6 Waiver. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought.
4.7 Attorneys Fees. In the event of any dispute between the parties
concerning the terms and provisions of this Warrant, the party prevailing in
such dispute shall be entitled to collect from the other party all costs
incurred in such dispute, including reasonable attorneys' fees.
4.8 Governing Law. This Warrant shall be governed by and construed in
accordance with the laws of the State of California, without giving effect to
its principles regarding conflicts of law.
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
-------------------------------
Chairman of the Board, President or
Vice President
By /s/ [Illegible]
-------------------------------
Secretary or Ass't Secretary
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase _____ shares of the
Common/Series ___ Preferred [strike one] Stock of _____ pursuant to the terms of
the attached Warrant, and tenders herewith payment of the purchase price of such
shares in full.
1. The undersigned hereby elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the Warrant . This
conversion is exercised with respect to _____ of the Shares covered by the
Warrant.
[Strike paragraph that does not apply.]
2. Please issue a certificate or certificates representing said shares in
the name of the undersigned or in such other name as is specified below:
_____________________________
(NAME)
_____________________________
_____________________________
(ADDRESS)
3. The undersigned represents it is acquiring the shares solely for its own
account and not as a nominee for any other party and not with a view toward the
resale or distribution thereof except in compliance with applicable securities
laws.
_____________________________
(Signature)
_____________________________
(Date)
APPENDIX 2
NOTICE THAT WARRANT IS ABOUT TO EXPIRE
_________________________, ____
(Name of Holder)
(Address of Holder)
Attn: Chief Financial Offer
Dear____:
This is to advise you that the Warrant issued to you described below will
expire on ___________________, 19__.
Issuer:
Issue Date:
Class of Security Issuable:
Exercise Price per Share:
Number of Shares Issuable:
Procedure for Exercise:
Please contact [name of contact person at (phone number)] with any
questions you may have concerning exercise of the Warrant. This is your only
notice of pending expiration.
(Name of Issuer)
By _____________________________
Its ____________________________
EXHIBIT A
ANTI-DILUTION PROVISIONS
In the event of the issuance (a "Diluting Issuance") by the Company, after
the Issue Date of the Warrant, of securities at a price per share less than the
Warrant Price, or, if the Shares are common stock, less than the then conversion
price of the Company's Series __ Preferred Stock, then the number of shares of
common stock issuable upon conversion of the Shares, or if the Shares are common
stock, the number of Shares issuable upon exercise of the Warrant, shall be
adjusted as a result of Diluting Issuances in accordance with the Holder's
standard form of Anti-Dilution Agreement in effect on the Issue Date.
Under no circumstances shall the aggregate Warrant Price payable by the
Holder upon exercise of the Warrant increase as a result of any adjustment
arising from a Diluting Issuance.
EXHIBIT B
REGISTRATION RIGHTS
The Shares (if common stock), or the common stock issuable upon conversion
of the Shares, shall be deemed "registrable securities" or otherwise entitled to
"piggy back" registration rights in accordance with the terms of the following
agreement (the "Agreement") between the Company and its investor(s):
___________________________________________________________________________
_____[Identity Agreement by date, title and parties. If no Agreement exists,
indicate by "none".]
The Company agrees that no amendments will be made to the Agreement which
would have an adverse impact on Holder's registration rights thereunder without
the consent of Holder. By acceptance of the Warrant to which this Exhibit B is
attached, Holder shall be deemed to be a party to the Agreement.
If no Agreement exists, then the Company and the Holder shall enter into
Holder's standard form of Registration Rights Agreement as in effect on the
Issue Date of the Warrant.
[Logo] Silicon Valley Bank
Antidilution Agreement
Issuer: Natural Gas Vehicle Systems, Inc.
Address: 0000 Xxxxxx Xxxxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxxxxxxx
Date: June 2, 1992
THIS AGREEMENT is entered into as of the above date by and between SILICON
VALLEY BANK ("Purchaser"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000-0000, and the above Company, whose address is set forth above.
RECITALS
A. Concurrently with the execution of this Antidilution Agreement, the
Purchaser is purchasing from the Company a Warrant to Purchase Stock (the
"Warrant") pursuant to which Purchaser has the right to acquire from the Company
the Shares (as defined in the Warrant).
B. By this Antidilution Agreement, the Purchaser and the Company desire to
set forth the adjustment in the number of Shares issuable upon exercise of the
Warrant as a result of a Diluting Issuance (as defined in Exhibit A to the
Warrant).
C. Capitalized terms used herein shall have the same meaning as set forth
in the Warrant.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth, the parties hereto mutually agree as follows:
1. Definitions. As used in this Antidilution Agreement, the following terms
have the following respective meanings:
(a) "Option" means any right, option, or warrant to subscribe for,
purchase, or otherwise acquire common stock or Convertible Securities.
(b) "Convertible Securities" means any evidences of indebtedness, shares of
stock, or other securities directly or indirectly convertible into or
exchangeable for common stock.
(c) "Issue" means to grant, issue, sell, assume, or fix a record date for
determining persons entitled to receive, any security (including Options),
whichever of the foregoing is the first to occur.
(d) "Additional Common Shares" means all common stock (including reissued
shares) issued (or deemed to be issued pursuant to Section 2) after the date of
the Warrant. Additional Common Shares does not include, however, any common
stock issued in a transaction described in Sections 2.1 and 2.2 of the Warrant;
any common stock issued upon conversion of preferred stock outstanding on the
date of the Warrant; the Shares; or common stock Issued as incentive or in a
nonfinancing transaction to employees, officers, directors, or consultants to
the Company.
(e) The shares of common stock ultimately Issuable upon exercise of an
Option (including the shares of common stock ultimately Issuable upon conversion
or exercise of a Convertible Security Issuable pursuant to an Option) are deemed
to be Issued when the Option is Issued. The shares of common stock ultimately
Issuable upon conversion or exercise of a Convertible Security (other than a
Convertible Security Issued pursuant to an Option) shall be deemed Issued upon
Issuance of the Convertible Security.
2. Deemed Issuance of Additional Common Shares. The shares of common stock
ultimately Issuable upon exercise of an Option (including the shares of common
stock ultimately Issuable upon conversion or exercise of a Convertible Security
Issuable pursuant to an Option) are deemed to be Issued when the Option is
Issued. The shares of common stock ultimately Issuable upon conversion or
exercise of a Convertible Security (other than a Convertible Security Issued
pursuant to an Option) shall be deemed Issued upon Issuance of the Convertible
Security. The maximum amount of common stock Issuable is determined without
regard to any future adjustments permitted under the instrument creating the
Options or Convertible Securities.
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3. Adjustment of Warrant Price for Diluting Issuances.
3.1 Weighted Average Adjustment. If the Company Issues Additional Common
Shares after the date of the Warrant and the consideration per Additional Common
Share (determined pursuant to Section 9) is less than the Warrant Price in
effect immediately before such Issue, the Warrant Price in effect immediately
before such Issue shall be reduced, concurrently with such Issue, to a price
(calculated to the nearest hundredth of a cent) determined by multiplying the
Warrant Price by a fraction:
(a) the numerator of which is the amount of common stock outstanding
immediately before such Issue plus the amount of common stock that the aggregate
consideration received by the Company for the Additional Common Shares would
purchase at the Warrant Price in effect immediately before such Issue, and
(b) the denominator of which is the amount of common stock outstanding
immediately before such Issue plus the number of such Additional Common Shares.
3.2 Adjustment of Number of Shares. Upon each adjustment of the Warrant
Price, the number of Shares issuable upon exercise of the Warrant shall be
increased to equal the quotient obtained by dividing (a) the product resulting
from multiplying (i) the number of Shares issuable upon exercise of the Warrant
and (ii) the Warrant Price, in each case as in effect immediately before such
adjustment, by (b) the adjusted Warrant Price.
3.3 Securities Deemed Outstanding. For the purpose of this Section 3, all
securities issuable upon exercise of any outstanding Convertible Securities or
Options, warrants, or other rights to acquire securities of the Company shall be
deemed to be outstanding.
4. No Adjustment for Issuances Following Deemed Issuances. No adjustment to
the Warrant Price shall be made upon the exercise of Options or conversion of
Convertible Securities.
5. Adjustment Following Changes in Terms of Options or Convertible
Securities. If the consideration payable to, or the amount of common stock
Issuable by, the Company increases or decreases, respectively, pursuant to the
terms of any outstanding Options or Convertible Securities, the Warrant Price
shall be recomputed to reflect such increase or decrease. The recomputation
shall be made as of the time of the Issuance of the Options or Convertible
Securities. Any changes in the Warrant Price that occurred after such Issuance
because other Additional Common Shares were Issued or deemed Issued shall also
be recomputed.
6. Recomputation Upon Expiration of Options or Convertible Securities. The
Warrant Price computed upon the original Issue of any Options or Convertible
Securities, and any subsequent adjustments based thereon, shall be recomputed
when any Options or rights of conversion under Convertible Securities expire
without having been exercised. In the case of Convertible Securities or Options
for common stock, the Warrant Price shall be recomputed as if the only
Additional Common Shares Issued were the shares of common stock actually Issued
upon the exercise of such securities, if any, and as if the only consideration
received therefor was the consideration actually received upon the Issue,
exercise or conversion of the Options or Convertible Securities. In the case of
Options for Convertible Securities, the Warrant Price shall be recomputed as if
the only Convertible Securities Issued were the Convertible Securities actually
Issued upon the exercise thereof, if any, and as if the only consideration
received therefor was the consideration actually received by the Company
(determined pursuant to Section 9), if any, upon the Issue of the Options for
the Convertible Securities.
7. Limit on Readjustments. No readjustment of the Warrant Price pursuant to
Sections 5 or 6 shall increase the Warrant Price more than the amount of any
decrease made in respect of the Issue of any Options or Convertible Securities.
8. 30 Day Options. In the case of any Options that expire by their terms
not more than 30 days after the date of Issue thereof, no adjustment of the
Warrant Price shall be made until the expiration or exercise of all such
Options.
9. Computation of Consideration. The consideration received by the Company
for the Issue of any Additional Common Shares shall be computed as follows:
(a) Cash shall be valued at the amount of cash received by the Corporation,
excluding amount paid or payable for accrued interest or accrued dividends.
(b) Property. Property other than cash shall be computed at the fair market
value thereof at the time of the Issue as determined in good faith by the Board
of Directors of the Company.
(c) Mixed Consideration. The consideration for Additional common Shares
Issued together with other property of the Company for consideration that covers
both shall be determined in good faith by the Board of Directors.
(d) Options and Convertible Securities. The consideration per Additional
Common Share for Options and Convertible Securities shall be determined by
dividing:
(i) the total amount, if any, received or receivable by the Company for the
Issue of the Options or Convertible Securities, plus the minimum amount of
additional consideration (as set forth in the instruments relating thereto,
without regard to any provision contained therein for a subsequent adjustment of
such consideration) payable to the Company upon exercise of the Options or
conversion of the Convertible Securities, by
(ii) the maximum amount of common stock (as set forth in the instruments
relating thereto, without regard to any provision contained therein for a
subsequent adjustment of
-2-
such number) ultimately Issuable upon the exercise of such Options or the
conversion of such Convertible Securities.
10. General.
10.1 Governing Law. This Antidilution Agreement shall be governed in all
respects by the laws of the State of California as such laws are applied to
agreements between California residents entered into and to be performed
entirely within California.
10.2 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
10.3 Entire Agreement. Except as set forth below, this Antidilution
Agreement and the other documents delivered pursuant hereto constitute the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
10.4 Notices. etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class mail,
postage prepaid, certified or registered mail, return receipt requested,
addressed (a) if to Purchaser at Purchaser's address as set forth in the heading
to this Agreement, or at such other address as Purchaser shall have furnished to
the Company in writing, or (b) if to the Company, at the Company's address set
forth in the heading to this Agreement, or at such other address as the Company
shall have furnished to the Purchaser in writing.
10.5 Severability. In case any provision of this Antidilution Agreement
shall be invalid, illegal, or unenforceable, the validity, legality and
enforceability of the remaining provisions of this Antidilution Agreement shall
not in any way be affected or impaired thereby.
10.6 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Antidilution Agreement.
10.7 Counterparts. This Antidilution Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
Company:
NATURAL GAS VEHICLE SYSTEMS, INC.
By /s/ [Illegible]
----------------------------
President or Vice President
By /s/ [Illegible]
----------------------------
Secretary or Ass't Secretary
Purchaser:
SILICON VALLEY BANK
By /s/ [Illegible]
----------------------------
Title VP
--------------------------
38112-V1 2/10/92
25,321
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