Exhibit 10.6
SECURITY AGREEMENT
(ALL ASSETS)
THIS SECURITY AGREEMENT is entered into at Boston, Massachusetts, as of
this 30th day of September, 2001 by and between HITTITE MICROWAVE CORPORATION, a
Delaware corporation with a principal place of business at 00 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called the "Borrower") and CITIZENS
BANK OF MASSACHUSETTS (hereinafter called the "Bank") with its principal place
of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
Except for certain masks located at various foundries, the tangible
Collateral, including the Inventory and Equipment, which is the subject matter
of this Agreement is, and, except as otherwise provided herein, will be, kept
at: 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000. The Borrower warrants
that the Borrower has no places of business except as set forth in the preceding
sentence. All records concerning Borrower's accounts, contract rights and other
property are at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
1. In consideration of the Bank's extending credit and other
financial accommodations to the Borrower, the Borrower hereby grants to the Bank
a security interest in (including, without limitation, a lien on and pledge of)
all of the Borrower's Collateral (as hereinafter defined).
The security interest granted by this Agreement is given to and shall
be held by the Bank as security for the payment and performance of all
Obligations (as hereinafter defined). The Bank shall have the unrestricted right
from time to time to apply the proceeds of any of the Collateral to any of the
Obligations, as the Bank in its sole discretion may determine.
During the continuance of this Agreement the Borrower will, at such
intervals as the Bank may request, notify the Bank, upon a form satisfactory to
the Bank, of all Collateral which has come into existence since the date hereof
or the date of the last such notification, including, without limitation, the
delivery of schedules of the Collateral and/or proceeds resulting from the sale
or other disposition thereof.
2. The following definitions shall apply:
(a) "Collateral" shall mean all the Borrower's present and future
right, title and interest in and to any and all of the following property,
whether such property be now existing or hereafter created, acquired or arising
or now or hereafter received by or belonging or owing to the Borrower:
(i) All Inventory;
(ii) All accounts, (as these terms are defined in the Uniform
Commercial Code, as hereafter defined), including, without limiting the
generality of the foregoing,
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"Health-Care-Insurance Receivables", accounts receivable, and all contract
rights, and chattel paper, including without limiting the generality of the
foregoing, "Electronic Chattel Paper", regardless of whether or not any of the
foregoing constitute proceeds of other Collateral;
(iii) All general intangibles, regardless of whether or not they
constitute proceeds of other Collateral, including, without limitation, all the
Borrower's rights (which the Bank may exercise or not as it in its sole
discretion may determine) to acquire or obtain goods and/or services with
respect to the manufacture, processing, storage, sale, shipment, delivery or
installation of any of the Borrower's Inventory or other Collateral;
(iv) All products and accessions to any of the Collateral;
(v) All liens, guaranties, securities, rights, remedies and
privileges pertaining to any of the Collateral, including the right of stoppage
in transit;
(vi) All tax refunds of every kind and nature to which the Borrower
is now or hereafter may become entitled no matter however arising, including,
without limitation, loss carry back refunds;
(vii) All obligations, debts and liabilities owing to the Borrower
of every kind and nature, from any person, firm or corporation or any other
legal entity, whether now existing or hereafter arising, now or hereafter
received by or belonging or owing to Borrower, for goods sold by it or for
services rendered by it, or however otherwise same may have been established or
created, all guarantees and securities therefor, all right, title and interest
of Borrower in the merchandise or services which gave rise thereto, including
the rights of reclamation and stoppage in transit, all rights to replevy goods,
and all rights of an unpaid seller of merchandise or services, and all choses in
action;
(viii) All goodwill, trade secrets, records, files, computer
programs, and software and data, customer lists, ledger sheets, trade names,
trade secrets, copyrights, trademarks and patents;
(ix) All documents and instruments (whether negotiable or
nonnegotiable, and regardless of their being attached to chattel paper),
including, without limitation, all notes, bills, drafts and acceptances and all,
security entitlements, financial assets and other investment property, as these
terms are defined in the Uniform Commercial Code;
(x) All Equipment, including without limitation, machinery,
furniture, trade fixtures and all other goods used in the conduct of the
Borrower's business, and including, without limitation, all motor vehicles now
or hereafter owned or acquired by the Borrower;
(xi) All books and records (including, without limiting the
generality of the foregoing all electronically recorded data), all whether now
owned or existing or hereafter acquired, created or arising, including, without
in any way limiting the generality of the foregoing, those relating to its
accounts;
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(xii) All deposit accounts and other bank accounts of any kind
maintained by the Borrower with any bank, trust company, investment firm or
fund, or any similar institution or organization;
(xiii) All commercial tort claims, letters of credit and letter of
credit rights, as these terms are defined in the Uniform Commercial Code; and
(xiv) All proceeds of Collateral of every kind and nature and in
whatever form, including, without limitation, both cash and noncash proceeds
resulting or arising from the rendering of services by the Borrower or the sale
or other disposition by the Borrower of the Inventory or other Collateral and
all insurance proceeds payable under insurance policies relating to any items of
Collateral and rents and profits resulting from the temporary use of Collateral;
(b) "Contract Rights" or "contract rights" means the rights of the
Borrower to payment under contracts not yet earned by performance and not
evidenced by instruments or chattel paper.
(c) "Inventory" shall include, without limitation, any and all
goods, wares, merchandise and other tangible personal property, including raw
materials, work in process, supplies and components, and finished goods, whether
held by the Borrower for sale or other disposition, and also including any
returned or repossessed Inventory detained from or rejected for entry into the
United States by the appropriate governmental authorities, all products of and
accessions to Inventory and including documents of title, whether negotiable or
nonnegotiable, representing any of the foregoing.
(d) "Debtor(s)" shall mean the Borrower's customers who are
indebted to the Borrower.
(e) "Obligation(s)" shall include, without limitation, all loans,
advances, indebtedness, notes, liabilities and amounts, liquidated or
unliquidated, owing by the Borrower and/or its parent, subsidiaries or
affiliates, including without limitation, to the Bank at any time, each of every
kind, nature and description, whether arising under this Agreement or otherwise,
and whether secured or unsecured, direct or indirect (that is, whether the same
are due directly by the Borrower to the Bank; or are due indirectly by the
Borrower to the Bank as endorser or guarantor, or as obligor of obligations due
to third persons which have been endorsed or assigned to the Bank; or
otherwise), absolute or contingent, due or to become due, now existing or
hereafter contracted, including, without limitation, all obligations arising
from or related to a Equipment and Commercial Revolving Line of Credit Agreement
of even date, as it may be amended, modified, extended or replaced (hereinafter
the "Credit Agreement"), and any and all overdrafts of Borrower. Said term shall
also include all interest and other charges chargeable to the Borrower and all
costs and expenses referred to in Paragraph 7 of this Agreement.
(f) "Patents" shall include all of the Borrower's right, title and
interest, present and future, in and to (a) all letters patent of the United
States or any other country, all right, title and interest therein and thereto,
and all registrations and recordings thereof,
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including without limitation applications, registrations and recordings in the
United States Patent and Trademark Office or in any similar office or agency of
the United States and State thereof or any other country or any political
subdivision thereof, all whether now owned or hereafter acquired by the
Borrower, and (b) all reissues, continuations, continuations-in-part or
extensions thereof and all licenses thereof; and all proceeds of the foregoing
and all proceeds of any insurance on the foregoing.
(g) "Trademarks" shall include all of the Borrower's right, title
and interest, present and future, in and to (a) all trademarks, trade names,
trade styles, service marks, prints and labels on which said trademarks, trade
names, trade styles and service marks have appeared or appear, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all right, title and interest therein and thereto, and all
registrations and recordings thereof, including without limitation applications,
registrations and recordings in the United States Patent and Trademark Office or
in any similar office or agency of the United States, any State thereof, or any
other country or any political subdivision thereof, all whether now owned or
hereafter acquired by the Borrower; (b) all reissues, extensions or renewals
thereof and all licenses thereof; and (c) the goodwill of the business
symbolized by each of the Trademarks, and all customer lists and other records
of the Borrower relating to the distribution of products bearing the Trademarks;
and all proceeds of the foregoing and all proceeds of any insurance on the
foregoing.
(h) "Person" or "party" shall include individuals, firms,
corporations and all other entities.
(i) "Event of Default" shall mean the occurrence of any one or
more of the Events of Default as defined in the Credit Agreement, or in any
other loan document now or hereafter executed by the Borrower related to the
Obligations, as they may be hereafter amended, modified, substituted or replaced
(collectively the "Loan Documents"), or the occurrence of any of the following
events:
(1) This Agreement shall at any time after its execution and
delivery and for any reason cease (a) to create a valid and perfected first
priority security interests in and to the property purported to be subject to
such security agreement or (b) to be in full force and effect or shall be
declared null and void, or the validity or enforceability thereof shall be
contested by the Borrower or any affiliate, subsidiary or guarantor of the
Borrower;
(i) "Equipment" shall mean and include all the Borrower's
machinery, equipment, furniture, trade fixtures, motor vehicles, and intending
to include all tangible personal property utilized in the conduct of the
Borrower's business (but excluding therefrom Inventory, as that term is defined
in the Code), and all replacements or substitutions therefor and all accessions
thereto.
All words and terms used in this Agreement other than those
specifically defined in Paragraph 2, and except as specifically otherwise
provided elsewhere in this Agreement, shall be deemed to have the meanings
accorded to them in the Massachusetts
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Uniform Commercial Code, as amended from time to time (herein the "Code" or the
"Uniform Commercial Code".
3. The Bank hereby authorizes and permits the Borrower to hold,
process, sell, use or consume in the manufacture or processing of finished
goods, or otherwise dispose of the Inventory for fair consideration, all in the
ordinary course of the Borrower's business, excluding, however (but without
limiting the generality of the foregoing), sales to creditors or in bulk or
sales or other dispositions occurring under circumstances which would or could
create any lien or interest adverse to the Bank's security interest or other
rights hereunder in the proceeds resulting therefrom. The Bank also hereby
authorizes and permits the Borrower to receive from the Debtors all amounts due
as proceeds of the Collateral at the Borrower's own cost and expense, and also
liability, if any, subject to the direction and control of the Bank at all
times; and the Bank may at any time, after an Event of Default has occurred,
terminate all or any part of the authority and permission herein or elsewhere in
this Agreement granted to the Borrower with reference to the Collateral.
Until the Bank shall otherwise notify the Borrower, all proceeds of and
collections of Collateral shall be retained by the Borrower and used solely for
the ordinary and usual operation of the Borrower's business. From and after
notice by the Bank to the Borrower, all proceeds of and collections of the
Collateral shall be held in trust by the Borrower for the Bank and shall not be
commingled with the Borrower's other funds or deposited in any bank account of
the Borrower; and the Borrower agrees to deliver to the Bank on the dates of
receipt thereof by the Borrower, duly endorsed to the Bank or to the bearer, or
assigned to the Bank, as may be appropriate, all proceeds of the Collateral in
the identical form received by the Borrower.
4. Prior to an Event of Default, the Borrower may grant such
allowances or other adjustments to Debtor(s) as the Borrower may reasonably deem
to accord with sound business practice, including, without limiting the
generality of the foregoing, accepting the return of all or any part of the
Inventory (subject to the provisions set forth in this Agreement with reference
to returned Inventory). After an Event of Default, no such allowance or
adjustment shall be made without obtaining the Bank's written consent in each
instance.
5. Intentionally deleted.
6. Intentionally deleted.
7. The Borrower shall pay to the Bank any and all costs and
expenses (including, without limitation, reasonable attorney's fees, court
costs, litigation and other expenses) incurred or paid by the Bank in
establishing, maintaining, protecting or enforcing any of the Bank's rights or
the Obligations, including, without limitation, any and all such costs and
expenses incurred or paid by the Bank in defending the Bank's security interest
in, title or right to the Collateral or in collecting or attempting to collect
or enforcing or attempting to enforce payment of the Collateral.
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8. From and after notice to the Borrower pursuant to Paragraph 3,
at the expiration of such period of time after receipt by the Bank as the Bank
determines is reasonably sufficient to allow for clearance or payment of any
items, the cash proceeds of the Collateral shall be credited to the Obligations,
it being specifically understood and agreed, however, that an account
receivable, contract right, general intangible, negotiable or nonnegotiable
instrument (other than a check), or other non-cash proceeds shall not be so
credited until actual payment thereof. All such credits shall, however, be
conditional upon final payment to the Bank of the items giving rise to them and
if any item is not so paid, the amount of any credit given for it shall be
charged as a debit in said Borrower's loan account, if any, or against any
deposit account of the borrower with the Bank, whether or not the item is
returned.
9. The Borrower shall hold its books and records relating to the
Collateral in a manner satisfactory to the Bank; and shall deliver to the Bank
from time to time promptly at its request, all invoices, original documents of
title, contracts, chattel paper, instruments and any other writings relating
thereto, and other evidence of performance of contracts, or evidence of shipment
or delivery of the merchandise or of the rendering of services; and the Borrower
will deliver to the Bank promptly at the Bank's request from time to time
additional copies of any or all such papers of writings, and such other
information with respect to any of the Collateral and such schedules of
Inventory, schedules of accounts and such other writings as the Bank may in its
sole discretion deem to be necessary or effectual to evidence any loan hereunder
or the Bank's security interest in the Collateral.
10. The Borrower shall promptly make, stamp or record such entries
or legends on the Borrower's books and records or on any of the Collateral as
the Bank shall request from time to time to indicate and disclose that the Bank
has a security interest in such Collateral.
11. The Bank, or its representatives, at any time and from time to
time, upon not less than three (3) business days notice (or one (1) days notice
after the occurrence of Event of Default, while such Event of Default is
continuing) shall have the right, and the Borrower will permit them:
(a) to examine, check, make copies of or extracts from
any of the Borrower's books, records and files (including,
without limitation, orders, and original correspondence);
(b) to inspect and examine the Borrower's Inventory or
other Collateral and to check and test the same as to quality,
quantity, value and condition; and the Borrower agrees to
reimburse the Bank for its reasonable costs and expenses in so
doing; and
(c) to verify the Collateral or any portion or portions
thereof or the Borrower's compliance with the provisions of
this Agreement.
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12. The. Borrower will execute and deliver to the Bank any
writings and do all things necessary, effectual or requested by the Bank to
carry into effect the provisions and intent of this Agreement, or to vest more
fully in or assure to the Bank (including, without limitation, all steps to
create and perfect) the security interest in the Collateral granted to the Bank
by this Agreement or to comply with applicable statute or law and to facilitate
the collection of the Collateral, including the furnishing at the Borrower's own
cost and expense, at such intervals as the Bank may establish from time to time,
of reports, financial data arid analyses satisfactory to the Bank.
13. The Borrower covenants with and warrants to the Bank:
(a) That all Equipment and Inventory in which the Bank is now or
hereafter given a security interest pursuant to this Agreement will at all times
be kept and maintained in good order and condition at the sole cost and expense
of the Borrower.
(b) That the Borrower will maintain in force one or more policies
of insurance on all Equipment, Inventory and all other tangible Collateral
against risks of fire (with customary extended coverage), sprinkler leakage,
theft, loss or damage and other risks customarily insured against by companies
engaged in businesses similar to that of the Borrower in such amounts,
containing such terms, in such form, for such periods, covering such hazards and
written by such companies as may be satisfactory to the Bank, such insurance to
be payable to the Bank as its interest may appear in the event of loss; the
policies for the same shall be deposited with the Bank; no loss shall be
adjusted thereunder without the Bank's approval; and all such policies shall
provide that they may not be canceled without first giving at least ten (10)
days' written notice of cancellation to the Bank. In the event that the Borrower
fails to provide evidence of the maintenance of such insurance satisfactory to
the Bank, the Bank may, at its option, secure such insurance and charge the cost
thereof to the Borrower and as a debit charge in the Borrower's loan account, if
any, or any other accounts of the Borrower with the Bank. At the option of the
Bank, all insurance proceeds received from any loss or damage to any of the
Collateral which, in the aggregate with the loss or damage to all other
Collateral caused by the same or any related occurrence, is estimated to total
Twenty-Five 'Thousand ($25,000.00) Dollars or more shall be applied either to
the replacement or repair thereof or as a payment on account of the Obligations.
(c) That at the date hereof the Borrower is (and as to Collateral
that the Borrower may acquire after the date hereof, will be) the lawful owner
of the Collateral, and that the Collateral, and each item thereof, is, will be,
and shall continue to be free of all restrictions, liens, encumbrances, or other
right, title or interest (other than the security interest therein granted to
the Bank hereby and, except as set forth on Exhibit A hereto), credits,
defenses, recoupments, set-offs, or counterclaims whatsoever; that the Borrower
has and will have full power and authority to grant to the Bank a security
interest in, and will not transfer, assign, sell (except sales or other
dispositions in the ordinary course of business in respect to Inventory as
expressly permitted in Paragraph 3 of this Agreement), pledge, encumber, subject
to lien or grant any security interest in any of the Collateral (or any of the
Borrower's right, title or interest therein) to any person other than the Bank;
that to the best of Borrower's knowledge and belief, the Collateral is and will
be valid and
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genuine in all respects; and that to the best of Borrower's knowledge and
belief, all accounts receivable arise out of legally enforceable and existing
contracts, in accordance with their tenor; and that upon the Borrower's
acquisition of any interest in contract rights, it shall in writing immediately
notify the Bank thereof, specifically identifying the same as contract rights,
and, except for such contract rights, no part of the Collateral (or the validity
or enforceability by the Bank thereof) is or shall be contingent upon the
fulfillment of any agreement or condition whatsoever and that the Collateral,
other than Inventory, shall represent unconditional and undisputed bona fide
indebtedness by the Debtor for sales or leases of Inventory shipped and
delivered or services rendered by the Borrower to Debtor, and is not and will
not be subject to any discount (except such cash or trade discounts as may be
shown on any invoice, contract or other writing delivered to the Bank); and that
the Borrower will warrant and defend the Bank's right to and interest in the
Collateral against all claims and demands of all persons whatsoever.
(d) That no contract right, account, general intangible or chattel
paper is or will be represented by any note or other instrument (negotiable or
otherwise), and that no contract right, account or general intangible is, or
will be represented by any conditional or installment sales obligation or other
chattel paper, except such instruments or chattel paper as have been or
forthwith upon receipt by the Borrower will be delivered to the Bank (duly
endorsed or assigned, as may be appropriate), such delivery, in the case of
chattel paper, to include all executed copies except those in the possession of
the installment buyer (provided, that if the Bank elects to leave chattel paper
in the possession of the Borrower, such procedure shall be subject to the
Borrower's compliance with the provisions of Paragraph 10 hereof and to the
Bank's right to require delivery and endorsement or assignment of such chattel
paper by the Borrower to the Bank whenever the Bank shall so request); and that
any security for or guaranty of any of the Collateral shall be delivered to the
Bank immediately upon receipt thereof by the Borrower, with such assignments and
endorsements thereof as the bank may request.
(e) (i) That, except as the Bank may otherwise approve in
writing, and except for sale, processing, use, consumption or other disposition
in the ordinary course of business pursuant to Paragraph 3 of this Agreement,
the Borrower will keep all Inventory at one or more of the locations specified
in the preamble to this Agreement or such other locations as the Borrower
designates in writing to the Bank by notice given at least thirty (30) days
prior to the relocation of such inventory.
(ii) That the Borrower shall, during the term of this
Agreement, keep the Bank currently and accurately informed in writing of each
location where the Borrower's records relating to its accounts and contract
rights, respectively, are kept, and shall not remove such records, or any of
them, to another state without giving the Bank at least thirty (30) days'
prior written notice thereof.
(iii) That the Borrower's chief executive office is
correctly stated in the preamble to this Agreement, that the Borrower shall,
during the term of this Agreement, keep the Bank currently and accurately
informed writing of each of its other places of business, and that the
Borrower shall not change the location of such chief office or open
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any new, or close, move or change any existing or new place of business without
giving the Bank at least thirty (30) days' prior written notice thereof.
(f) That the Bank shall not be deemed to have assumed any
liability or responsibility to the Borrower or any third person for the
correctness, validity or genuineness of any instruments or documents that may be
released or endorsed to the Borrower by the Bank (which shall automatically be
deemed to be without recourse to the Bank in any event), or for the existence,
character, quantity, quality, condition, value or delivery of any goods
purporting to be represented by any such documents; and that the Bank, by
accepting such security interest in the Collateral, or by releasing any
Collateral to the Borrower, shall not be deemed to have assumed any obligation
or liability to any supplier or Debtor or to any other third party, and the
Borrower agrees to indemnify and defend the Bank and hold it harmless in respect
to any claim or proceeding arising out of any matter referred to in this
Paragraph 13(f).
(g) Intentionally deleted
(h) That the Borrower will immediately notify the Bank of any loss
or damage to, or material diminution in or any occurrence which would adversely
affect the value of, the Inventory or other Collateral. In the event that the
Bank, in its sole discretion, shall determine that there has been any such loss,
damage or material diminution in value, the Borrower will, whenever the Bank so
requests, pay to the Bank within such period as the Bank shall specify such
amount as the Bank, in its sole discretion, shall have determined represents
such loss, damage or material diminution in value (any such payment, however,
not to affect the Bank's security interest in such Inventory or other
Collateral).
(i) That the Bank may from time to time in the Bank's discretion
hold and treat any deposits or other sums at any time credited by or due from
the Bank to the Borrower and any securities or other property of the Borrower in
the possession of the Bank, whether for safekeeping or otherwise, as collateral
security for and apply or set the same off against any Obligations after an
Event of Default has occurred. Without limiting the generality of the foregoing,
if at any time the amount of the revolving credit as then set by the Bank shall
be exceeded, the Borrower shall pay cash to the Bank in the amount of such
excess if the Bank so requests, or the Bank may charge such amount against any
deposit account of the Borrower with the Bank.
(j) That if any of the Collateral includes a charge for, or if any
loan by the Bank to the Borrower shall be subject to any tax payable to any
government al taxing authority, the Borrower shall pay such. tax independently
when due. The Bank may retain the full proceeds of the Collateral and the
Borrower will indemnify and save the Bank harmless from any loss, cost,
liability or expense (including, without limitation, reasonable attorney's
fees), in connection therewith.
(k) That at any time or times and whether or not an Event of
Default has occurred, the Bank may notify any Debtor or Debtors of its security
interest in the Collateral and Collect all amounts due thereon; and the Borrower
agrees, at the request of the Bank, to notify all or any of the Debtors in
writing of the Bank's security interest in
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the Collateral in whatever manner the Bank requests, and if the Bank so
requests, to permit the Bank to mail such notices at the Borrower's expense.
(l) That the Bank may, at its option, from time to time, discharge
any taxes, liens or encumbrances on any of the Collateral, or take any other
action that the Bank may deem proper to repair, maintain or preserve any of the
Collateral, and the Borrower will pay to the Bank on demand or the Bank in its
sole discretion may charge to the Borrower all amounts so paid or incurred by it
or as a debit charge against the Borrower's loan account, if any, or any other
deposit account of the Borrower with the Bank
(m) If any of Borrower's accounts arise out of contracts with the
United States or any department, agency, or instrumentality thereof, Borrower
will immediately notify Bank thereof in writing and execute any instruments and
take any steps required by Bank in order that all monies due and to become due
under such contracts-shall be assigned to Bank and notice thereof given to the
Government under the Federal Assignment of Claims Act.
(n) That all representations now or hereafter made by the Borrower
to the Bank, whether in this Agreement or in any supporting or supplemental
reports, statements or documentation, including, without limitation, statements
relating to the Collateral and financial statements, are, and will be, at and as
of the date when made true and correct in all respects.
(o) That the Equipment shall always remain personal property
regardless of its attachment to realty in any manner, and if this [ ] is
checked: (i) the Equipment is to be attached to the real estate described as
follows: (ii) the record owner of which real estate is: and (iii) the Borrower
will deliver to the Bank, in form and substances satisfactory to the Bank, a
disclaimer of any interest in the Collateral executed by all persons now or
hereafter claiming any interest in said real estate.
(p) Except for the Bank's gross negligence or willful misconduct,
Borrower will indemnify and save Bank harmless from all loss, costs, damage,
liability or expenses (including, without limitation, court costs and reasonable
attorneys, fees) that Bank may sustain or incur by reason of defending or
protecting this security interest or the priority thereof or enforcing the
Obligations, or in the prosecution or defense of any action or proceeding
concerning any matter growing out of or in connection with this Agreement and/or
any other documents now or hereafter executed in connection with this Agreement
and/or the Obligations and/or the Collateral. This indemnity shall survive the
repayment of the Obligations and the termination of Bank's agreement to make
loans available to Borrower and the termination of this Agreement.
(q) Intentionally Omitted
(r) Borrower hereby grants to Bank for a term to commence on the
date of this Agreement and continuing thereafter until all debts and Obligations
of any kind or character owed to Bank are fully paid and discharged, a
non-exclusive irrevocable royalty-free license in connection with the Bank's
exercise of its rights hereunder, to use,
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apply or affix any trademark, trade name logo or the like and to use any
patents, in which the Borrower now or hereafter has rights, which license may be
used by Bank upon and after the occurrence of any one or more of the Events of
Default, provided, however, that such use by Bank shall be suspended if such
Events of Default are cured. This license shall be in addition to, and not in
lieu of, the inclusion of all of Borrower's trademarks, service marks,
tradenames, logos, goodwill, patents, franchises and licenses in the Collateral;
in addition to the right to use said Collateral as provided in this paragraph,
Bank shall have full right to exercise any and all of its other rights regarding
Collateral with respect to such trademarks, service marks, tradenames, logos,
goodwill, patents, franchises and licenses.
14. The Borrower hereby irrevocably constitutes and appoints the
Bank as the Borrower's true and lawful attorney, with full power of
substitution, at the sole cost and expense of the Borrower but for the sole
benefit of the Bank, to be exercised only after an Event of Default, to convert
the Collateral into cash, including without limitation, completing the
manufacture or processing of work in process, and the sale (either public or
private) of all or any portion or portions of the Inventory and other
Collateral; to enforce collection of the Collateral, either in its own name or
in the name of the Borrower, including, without limitation, executing releases,
compromising or settling with any Debtors and prosecuting, defending,
compromising or releasing any action relating to the Collateral; to receive,
open and dispose of all mail addressed to the Borrower and to take therefrom any
remittances or proceeds of Collateral in which the Bank has a security interest;
to notify Post Office authorities to change the address for delivery of mail
addressed to the Borrower to such address as the Bank shall designate; to
endorse the name of the Borrower in favor of the Bank upon any and all checks,
drafts, money orders, notes, acceptances or other instruments of the same or
different nature; to sign and endorse the name of the Borrower on and to receive
as secured party any of the Collateral, any invoices, schedules of Collateral,
freight or express receipts, or bills of lading, storage receipts, warehouse
receipts, or other documents of title of the same or different nature relating
to the Collateral; to sign the name of the Borrower or any notice to the Debtors
or on verification of the Collateral; and to sign and/or file or record on
behalf of the Borrower any financing or other statement in order to perfect or
protect the Bank's security interest, without any signature of the Debtor to the
extent permitted by any applicable law. The Bank shall not be obliged to do any
of the acts or exercise any of the powers hereinabove authorized, but if the
Bank elects to do any such act or exercise any such power, it shall not be
accountable for more than it actually receives as a result of such exercise of
power, and it shall not be responsible to the Borrower except for willful
misconduct in bad faith. All powers conferred upon the Bank by this Agreement,
being coupled with an interest, shall be irrevocable so long as any Obligation
of the Borrower to the Bank shall remain unpaid.
Whenever the Bank deems it desirable that any legal action be
instituted with respect to any Collateral or that any other action be taken in
an attempt to effectuate collection of any Collateral, the Bank may reassign the
item in question to the Borrower (and if the Bank shall execute any such
reassignment, it shall automatically be deemed to be without recourse to the
Bank in any event) and require the Borrower to proceed with such legal or other
action at the Borrower's sole liability, cost and expense, in which
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event all amounts collected by the Borrower on such item shall nevertheless be
subject to the provisions of the last sentence of Paragraph 3 of this Agreement.
15. The Bank is hereby authorized, at its election, at any time or
times after an Event of Default events has occurred, or without any further
demand or notice except to such extent as notice may be required by applicable
law, to sell or otherwise dispose of all or any of the Collateral at public or
private sale; and the Bank may also exercise any and all other rights and
remedies of a secured party under the Code or which are otherwise accorded to it
by applicable law, all as the Bank may determine. If notice of a sale or other
action by the Bank is required by applicable law, the Borrower agrees that five
(5) days' written notice to the Borrower, or the shortest period of written
notice permitted by such law, whichever is larger, shall be sufficient; and that
to the extent permitted by such law, the Bank, its officers, attorneys and
agents may bid and become purchasers at any such sale, if public, and may
purchase at any private sale any of the Collateral that is of a type customarily
sold on a recognized market or which is the subject of widely distributed
standard price quotations, and any sale (public or private) shall be free from
any right of redemption, which the Borrower hereby waives and releases. No
purchaser at any sale (public or private) shall be responsible for the
application of the purchase money. Any balance of the net proceeds of sale
remaining after paying all direct Obligations of the Borrower to the Bank, and
all costs and expenses of manufacturer, processing, completion or installation
of the Inventory; collection, storage, custody, sale and delivery of the
Inventory, the Equipment, and/or the Collateral, including, without limitation,
reasonable attorneys' fees, and after retaining as collateral security or
applying as the Bank may elect (in whole or in part at any time and from time to
time) amounts equal to the aggregate of all other Obligations shall be returned
to the Borrower or to such other party as may be legally entitled thereto; and
if there is a deficiency, the Borrower shall be responsible for the same, with
interest. Upon demand by the Bank, the Borrower shall assemble the Collateral
and make it available to the Bank at a place designated by the Bank which is
reasonably convenient to the Bank and the Borrower.
16. The Borrower waives notice of nonpayment, demand, presentment,
protest or notice of protest of the Collateral, and all other notices, consents
to any renewals or extensions of time of payment thereof, and generally waives
any and all suretyship defenses and defenses in the nature thereof. No delay or
omission of the Bank in exercising or enforcing any of its rights, powers,
privileges, remedies, immunities or discretions (all of which are hereinafter
collectively referred to as the "Bank's rights and remedies") hereunder shall
constitute a waiver thereof; and no waiver by the Bank of any default of the
Borrower hereunder shall operate as a waiver of any other default hereunder. No
term or provision hereof shall be waived, altered or modified except with the
prior written consent of the Bank, which consent makes explicit reference to
this Agreement. Except as provided in the preceding sentence, no other agreement
or transaction, of whatsoever nature, entered into between the Bank and the
Borrower at any time (whether before, during or after the effective date or term
of this Agreement), shall be construed in any particular as a waiver,
modification or limitation of any of the Bank's rights and remedies under this
Agreement (nor shall anything in this Agreement be construed as a waiver,
modification or limitation of any of the Bank's rights and remedies
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under any such other agreement or transaction) but all of the Bank's rights and
remedies not only under the provisions of this Agreement but also under any such
other agreement or transaction shall be cumulative and not alternative or
exclusive, and may be exercised by the Bank at such time or times and in such
order of preference as the Bank in its sole discretion may determine.
17. If any provision of this Agreement or portion of such
provision or the application thereof to any person or circumstance shall to any
extent be held invalid or unenforceable, the remainder of this Agreement (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
18. This Agreement shall be binding upon and inure to the benefit
of the respective successors and assigns of the parties hereto, and shall remain
in full force and effect (and the Bank shall be entitled to rely thereon,
notwithstanding payment of all Obligations of the Borrower to the Bank at any
time or times) until terminated as to future transactions by written notice from
either party to the other party of the termination hereof; provided that any
such termination shall not release or affect any Collateral in which the bank
already has a security interest or any Obligations incurred or rights accrued
hereunder prior to the effective date of such notice (as hereinafter defined) of
such termination. Notwithstanding any such termination, the Bank shall have a
security interest in all Collateral to secure the payment and performance of
Obligations arising after such termination as a result of commitments or
undertakings made or entered into by the Bank prior to such termination. Upon
the later to occur of the effective date of any such termination and the date on
which all Obligations are paid in full, the Bank shall terminate its security
interests in the Collateral and the Bank shall deliver to Borrower termination
statements with respect thereto. The Bank may transfer and assign this Agreement
and deliver the Collateral to the assignee, who shall thereupon have all of the
rights and obligations of the Bank; and the Bank shall then be relieved and
discharged of any responsibility or liability with respect to this Agreement and
the Collateral.
19. Intentionally Omitted
20. This Agreement is intended to take effect as a sealed
instrument and has been executed or completed and is to be performed in
Massachusetts, and it and all transactions thereunder or pursuant thereto shall
be governed as to interpretation, validity, effect, rights, duties and remedies
of the parties thereunder and in all other respects by the domestic laws of The
Commonwealth of Massachusetts.
21. Notwithstanding the existence of any other security interests
in the Collateral described in this Agreement held by the Bank or by any other
party, or the existence of any other mortgage or security interest in any other
property or collateral of the Borrower or of any co-obligor, guarantor or
endorser held by the Bank or any other party, the Bank shall have the right to
determine the order in which any or all of said collateral and property,
including the Collateral, shall be subjected to the remedies provided herein and
in any other security agreement or mortgage granted by the Borrower or any other
party and the right to determine the order in which any or all portions of the
Obligations secured hereby are satisfied from the proceeds realized upon
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the exercise of the remedies provided herein or therein. The Borrower and any
party who consents to this interest in the said Collateral and other property
and who has actual or constructive notice hereof hereby waives and shall be
deemed to have waived any and all rights to require the marshalling of assets in
connection with the exercise of any of the remedies permitted by applicable law
or provided herein.
22. Any notices under or pursuant to this Agreement shall be
deemed duly received by the Borrower and effective if delivered in hand to any
officer or agent of the Borrower, or if mailed by registered or certified mail,
return receipt requested, addressed to the Borrower at the Borrower's last
address on the Bank's records.
Any notices to the Bank under or pursuant to this Agreement shall be
mailed to the Bank by registered, certified, or express mail, return receipt
requested, addressed to the Bank as follows:
Citizens Bank of Massachusetts
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
and shall be deemed effective two (2) business days after receipt by
the Bank,
HITITTE MICROWAVE CORPORATION
By: /s/ Xxxxxx Xxxxxx
--------------------------------------------
Name: Xx. Xxxxxx Xxxxxx, President and Treasurer
CITIZENS BANK OF MASSACHUSETTS
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxx, Vice President
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THE COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss October __, 2001
Then personally appeared Xxxxxx Xxxxxx, President and Treasurer of
Hittite Microwave Corporation, known to me, and acknowledged the foregoing to be
his duly authorized and free act and deed as President and Treasurer and the
free act and deed of Hittite Microwave Corporation.
/s/ Xxxxxxx Xxxxxxxxxxx
------------------------------------------
Notary Public
My commission expires: February 8, 2002
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