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EXHIBIT 10.26
SILICON VALLEY BANK
LOAN AND SECURITY AGREEMENT
BORROWER: FIRSTWAVE TECHNOLOGIES, INC.
ADDRESS: 0000 XXXXX XXXXX XXXX, XXXXX 0000
XXXXXXX, XXXXXXX 00000
DATE: DECEMBER 19, 2000
THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
SILICON VALLEY BANK, COMMERCIAL FINANCE DIVISION ("Silicon"), whose address is
0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and the borrower(s) named
above (jointly and severally, the "Borrower"), whose chief executive office is
located at the above address ("Borrower's Address"). The Schedule to this
Agreement (the "Schedule") shall for all purposes be deemed to be a part of
this Agreement, and the same is an integral part of this Agreement.
(Definitions of certain terms used in this Agreement are set forth in Section 8
below.)
1. LOANS.
1.1 LOANS. Upon Borrower's written request therefor (which
request shall be made in manner, form, and substance acceptable to Silicon),
Silicon will make loans to Borrower (the "Loans"), in amounts determined by
Silicon in its sole discretion, up to the amounts (the "Credit Limit") shown on
the Schedule, provided no Default or Event of Default has occurred and is
continuing, and subject to deduction of any Reserves for accrued interest and
such other Reserves as Silicon deems proper from time to time.
1.2 INTEREST. All Loans and all other monetary Obligations shall
bear interest at the rate shown on the Schedule, except where expressly set
forth to the contrary in this Agreement. Interest shall be payable monthly, on
the last day of the month. Interest may, in Silicon's discretion, be charged to
Borrower's loan account, and the same shall thereafter bear interest at the
same rate as the other Loans. Silicon may, in its discretion, charge interest
to Borrower's Deposit Accounts maintained with Silicon. Regardless of the
amount of Obligations that may be outstanding from time to time, Borrower shall
pay Silicon minimum monthly interest during the term of this Agreement in the
amount set forth on the Schedule (the "Minimum Monthly Interest").
1.3 OVERADVANCES. If at any time or for any reason the total of
all outstanding Loans and all other Obligations exceeds the Credit Limit (an
"Overadvance"), Borrower shall immediately pay the amount of the excess to
Silicon, without notice or demand. Without limiting Borrower's obligation to
repay to Silicon on demand the amount of any Overadvance, Borrower agrees to
pay Silicon interest on the outstanding amount of any Overadvance, on demand,
at a rate equal to the interest rate which would otherwise be applicable to the
Overadvance, plus an additional 2% per annum.
1.4 FEES. Borrower shall pay Silicon the fee(s) shown on the
Schedule, which are in addition to all interest and other sums payable to
Silicon and are not refundable.
1.5 LETTERS OF CREDIT. [Not Applicable]
2. SECURITY INTEREST.
2.1 SECURITY INTEREST. To secure the payment and performance of
all of the Obligations when due, Borrower hereby grants to Silicon a security
interest in all of Borrower's interest in the following, whether now owned or
hereafter acquired, and wherever located: All Inventory, Equipment,
Receivables, and General Intangibles, including, without limitation, all of
Borrower's Deposit Accounts, and all money, and all property now or at any time
in the future in Silicon's possession (including claims and credit balances),
and all proceeds (including proceeds of any insurance policies, proceeds of
proceeds and claims against third parties), all products and all books and
records related to any of the foregoing (all of the foregoing, together with
all other property in which Silicon may now or in the future be granted a lien
or security interest, is referred to herein, collectively, as the
"Collateral").
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3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER.
In order to induce Silicon to enter into this Agreement and to make
Loans, Borrower represents and warrants to Silicon as follows, and Borrower
covenants that the following representations will continue to be true, and that
Borrower will at all times comply with all of the following covenants:
3.1 CORPORATE EXISTENCE AND AUTHORITY. Borrower, if a
corporation, is and will continue to be, duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation.
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 Borrower. The execution, delivery and performance by Borrower of this
Agreement, and all other documents contemplated hereby (i) have been duly and
validly authorized, (ii) are enforceable against Borrower in accordance with
their terms (except as enforcement may be limited by equitable principles and
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to creditors' rights generally), and (iii) do not violate Borrower's articles
or certificate of incorporation, or Borrower's by-laws, or any law or any
material agreement or instrument which is binding upon Borrower or its
property, and (iv) do not constitute grounds for acceleration of any material
indebtedness or obligation under any material agreement or instrument which is
binding upon Borrower or its property.
3.2 NAME; TRADE NAMES AND STYLES. The name of Borrower set forth
in the heading to this Agreement is its correct name. Listed on the Schedule
are all prior names of Borrower and all of Borrower's present and prior trade
names. Borrower shall give Silicon 30 days' prior written notice before
changing its name or doing business under any other name. 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 Borrower's chief executive office. In
addition, Borrower has places of business and Collateral is located only at the
locations set forth on the Schedule. Borrower will give Silicon at least 30
days prior written notice before opening any additional place of business,
changing its chief executive office, or moving any of the Collateral to a
location other than Borrower's Address or one of the locations set forth on the
Schedule.
3.4 TITLE TO COLLATERAL; PERMITTED LIENS. 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 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 Permitted Liens. Silicon
now has, and will continue to have, a first-priority perfected and enforceable
security interest in all of the Collateral, subject only to the Permitted
Liens, and 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.
Borrower is not and will not become a lessee under any real property lease
pursuant to which the lessor may obtain any rights in any of the Collateral and
no such lease now prohibits, restrains, impairs or will prohibit, restrain or
impair Borrower's right to remove any Collateral from the leased premises.
Whenever any Collateral is located upon premises in which any third party has
an interest (whether as owner, mortgagee, beneficiary under a deed of trust,
lien or otherwise), Borrower shall, whenever requested by Silicon, use its best
efforts to cause such third party to execute and deliver to Silicon, in form
acceptable to Silicon, such waivers and subordinations as Silicon shall
specify, so as to ensure that Silicon's rights in the Collateral are, and will
continue to be, superior to the rights of any such third party. Borrower will
keep in full force and effect, and will comply with all the terms of, any lease
of real property where any of the Collateral now or in the future may be
located.
3.5 MAINTENANCE OF COLLATERAL. Borrower will maintain the
Collateral in good working condition, and Borrower will not use the Collateral
for any unlawful purpose. Borrower will immediately advise Silicon in writing
of any material loss or damage to the Collateral.
3.6 BOOKS AND RECORDS. Borrower has maintained and will maintain
at Borrower's Address complete and accurate books and records, comprising an
accounting system in accordance with generally accepted accounting principles.
3.7 FINANCIAL CONDITION, STATEMENTS AND REPORTS. 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 Borrower, at the times and for the periods therein stated. Between
the last date covered by any such statement provided to Silicon and the date
hereof, there has been no material adverse change in the financial condition or
business of Borrower. Borrower is now and will continue to be solvent.
3.8 TAX RETURNS AND PAYMENTS; PENSION CONTRIBUTIONS. Borrower has
timely filed, and will timely file, all tax returns and reports required by
foreign, federal, state and local law, and 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 Borrower. Borrower may, however,
defer payment of any contested taxes, provided that Borrower (i) in good faith
contests Borrower's obligation to pay the taxes by appropriate proceedings
promptly and diligently instituted and conducted, (ii) notifies Silicon in
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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. Borrower
is unaware of any claims or adjustments proposed for any of Borrower's prior
tax years which could result in additional taxes becoming due and payable by
Borrower. 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 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 Borrower, including any liability to the
Pension Benefit Guaranty Corporation or its successors or any other
governmental agency. Borrower shall, at all times, utilize the services of an
outside payroll service providing for the automatic deposit of all payroll
taxes payable by Borrower.
3.9 COMPLIANCE WITH LAW. 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 Borrower, including, but not limited
to, those relating to Borrower's ownership of real or personal property, the
conduct and licensing of Borrower's business, and all 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
Borrower's knowledge) threatened by or against or affecting Borrower in any
court or before any governmental agency (or any basis therefor known to
Borrower) which may result, either separately or in the aggregate, in any
material adverse change in the financial condition or business of Borrower, or
in any material impairment in the ability of Borrower to carry on its business
in substantially the same manner as it is now being conducted. Borrower will
promptly inform Silicon in writing of any claim, proceeding, litigation or
investigation in the future threatened or instituted by or against Borrower
involving any single claim of $50,000 or more, or involving $100,000 or more in
the aggregate.
3.11 USE OF PROCEEDS. All proceeds of all Loans shall be used
solely for lawful business purposes. Borrower is not purchasing or carrying any
"margin stock" (as defined in Regulation U of the Board of Governors of the
Federal Reserve System) and no part of the proceeds of any Loan will be used to
purchase or carry any "margin stock" or to extend credit to others for the
purpose of purchasing or carrying any "margin stock."
4. RECEIVABLES.
4.1 REPRESENTATIONS RELATING TO RECEIVABLES. Borrower represents
and warrants to Silicon as follows: Each Receivable with respect to which Loans
are requested by Borrower shall, on the date each Loan is requested and made,
(i) represent an undisputed bona fide existing unconditional obligation of the
Account Debtor created by the sale, delivery, and acceptance of goods or the
rendition of services in the ordinary course of Borrower's business, and (ii)
meet the Minimum Eligibility Requirements set forth in Section 8 below.
4.2 REPRESENTATIONS RELATING TO DOCUMENTS AND LEGAL COMPLIANCE.
Borrower represents and warrants to Silicon as follows: All statements made and
all unpaid balances appearing in all invoices, instruments and other documents
evidencing the Receivables are and shall be true and correct and all such
invoices, instruments and other documents and all of Borrower's books and
records are and shall be genuine and in all respects what they purport to be,
and all signatories and endorsers have the capacity to contract. All sales and
other transactions underlying or giving rise to each Receivable shall fully
comply with all applicable laws and governmental rules and regulations. All
signatures and endorsements on all documents, instruments, and agreements
relating to all Receivables are and shall be genuine, and all such documents,
instruments and agreements are and shall be legally enforceable in accordance
with their terms.
4.3 SCHEDULES AND DOCUMENTS RELATING TO RECEIVABLES. Borrower
shall deliver to Silicon transaction reports and loan requests, schedules and
assignments of all Receivables, and schedules of collections, all on Silicon's
standard forms; provided, however, that Borrower's failure to execute and
deliver the same shall not affect or limit Silicon's security interest and
other rights in all of Borrower's Receivables, nor shall Silicon's failure to
advance or lend against a specific Receivable affect or limit Silicon's
security interest and other rights therein. Loan requests received after 12:00
Noon will not be considered by Silicon until the next Business Day. Together
with each such schedule and assignment, or later if requested by Silicon,
Borrower shall furnish Silicon with copies (or, at Silicon's request,
originals) of all contracts, orders, invoices, and other similar documents, and
all original shipping instructions, delivery receipts, bills of lading, and
other evidence of delivery, for any goods the sale or disposition of which gave
rise to such Receivables, and Borrower warrants the genuineness of all of the
foregoing. Borrower shall also furnish to Silicon an aged accounts receivable
trial balance in such form and at such intervals as Silicon shall request. In
addition, Borrower shall deliver to Silicon the originals of all instruments,
chattel paper, security agreements, guarantees and other documents and property
evidencing or securing any Receivables, immediately upon receipt thereof and in
the same form as received, with all necessary indorsements, all of which shall
be with recourse. Borrower shall also provide Silicon with copies of all credit
memos within two days after the date issued.
4.4 COLLECTION OF RECEIVABLES. Borrower shall have the right to
collect all Receivables, unless and until a Default or an Event of Default has
occurred. Borrower shall hold all payments on, and proceeds of, Receivables in
trust for
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Silicon, and Borrower shall immediately deliver all such payments and
proceeds to Silicon in their original form, duly endorsed in blank, to be
applied to the Obligations in such order as Silicon shall determine. Silicon
may, in its discretion, require that all proceeds of Collateral be deposited by
Borrower into a lockbox account, or such other "blocked account" as Silicon may
specify, pursuant to a blocked account agreement in such form as Silicon may
specify. Silicon or its designee may, at any time, notify Account Debtors that
the Receivables have been assigned to Silicon.
4.5. REMITTANCE OF PROCEEDS. All proceeds arising from the
disposition of any Collateral shall be delivered, in kind, by Borrower to
Silicon in the original form in which received by Borrower not later than the
following Business Day after receipt by Borrower, to be applied to the
Obligations in such order as Silicon shall determine; provided that, if no
Default or Event of Default has occurred, Borrower shall not be obligated to
remit to Silicon the proceeds of the sale of worn out or obsolete equipment
disposed of by Borrower in good faith in an arm's length transaction for an
aggregate purchase price of $25,000 or less (for all such transactions in any
fiscal year). Borrower agrees that it will not commingle proceeds of Collateral
with any of Borrower's other funds or property, but will hold such proceeds
separate and apart from such other funds and property and in an express trust
for Silicon. Nothing in this Section limits the restrictions on disposition of
Collateral set forth elsewhere in this Agreement.
4.6 DISPUTES. Borrower shall notify Silicon promptly of all
disputes or claims relating to Receivables. Borrower shall not forgive
(completely or partially), compromise or settle any Receivable for less than
payment in full, or agree to do any of the foregoing, except that Borrower may
do so, provided that: (i) Borrower does so in good faith, in a commercially
reasonable manner, in the ordinary course of business, and in arm's length
transactions, which are reported to Silicon on the regular reports provided to
Silicon; (ii) no Default or Event of Default has occurred and is continuing;
and (iii) taking into account all such discounts settlements and forgiveness,
the total outstanding Loans will not exceed the Credit Limit. Silicon may, at
any time after the occurrence of an Event of Default, settle or adjust disputes
or claims directly with Account Debtors for amounts and upon terms which
Silicon considers advisable in its reasonable credit judgment and, in all
cases, Silicon shall credit Borrower's Loan account with only the net amounts
received by Silicon in payment of any Receivables.
4.7 RETURNS. Provided no Event of Default has occurred and is
continuing, if any Account Debtor returns any Inventory to Borrower in the
ordinary course of its business, Borrower shall promptly determine the reason
for such return and promptly issue a credit memorandum to the Account Debtor in
the appropriate amount (sending a copy to Silicon). In the event any attempted
return occurs after the occurrence of any Event of Default, Borrower shall (i)
hold the returned Inventory in trust for Silicon, (ii) segregate all returned
Inventory from all of Borrower's other property, (iii) conspicuously label the
returned Inventory as Silicon's property, and (iv) immediately notify Silicon
of the return of any Inventory, specifying the reason for such return, the
location and condition of the returned Inventory, and on Silicon's request
deliver such returned Inventory to Silicon.
4.8 VERIFICATION. Silicon may, from time to time, verify directly
with the respective Account Debtors the validity, amount and other matters
relating to the Receivables, by means of mail, telephone or otherwise, either
in the name of Borrower or Silicon or such other name as Silicon may choose.
4.9 NO LIABILITY. Silicon shall not under any circumstances be
responsible or liable for any shortage or discrepancy in, damage to, or loss or
destruction of, any goods, the sale or other disposition of which gives rise to
a Receivable, or for any error, act, omission, or delay of any kind occurring
in the settlement, failure to settle, collection or failure to collect any
Receivable, or for settling any Receivable in good faith for less than the full
amount thereof, nor shall Silicon be deemed to be responsible for any of
Borrower's obligations under any contract or agreement giving rise to a
Receivable. Nothing herein shall, however, relieve Silicon from liability for
its own gross negligence or willful misconduct.
5. ADDITIONAL DUTIES OF THE BORROWER.
5.1 FINANCIAL AND OTHER COVENANTS. Borrower shall at all times
comply with the financial and other covenants set forth in the Schedule.
5.2 INSURANCE. 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, and Borrower shall provide evidence of such
insurance to Silicon, so that Silicon is satisfied that such insurance is, at
all times, in full force and effect. 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 discretion, except
that, provided no Default or Event of Default has occurred and is continuing,
Silicon shall release to Borrower insurance proceeds with respect to Equipment
totaling less than $100,000, which shall be utilized by 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
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Borrower fails to provide or pay for any insurance, Silicon may, but is not
obligated to, obtain the same at Borrower's expense. Borrower shall promptly
deliver to Silicon copies of all reports made to insurance companies.
5.3 REPORTS. Borrower, at its expense, shall provide Silicon with
the written reports set forth in the Schedule, and such other written reports
with respect to Borrower (including budgets, sales projections, operating plans
and other financial documentation), as Silicon shall from time to time
reasonably specify.
5.4 ACCESS TO COLLATERAL, BOOKS AND RECORDS. At reasonable times,
and on * one Business Day's notice, Silicon, or its agents, shall have the
right to inspect the Collateral, and the right to audit and copy Borrower's
books and records. 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 inspections and audits shall be at Borrower's expense and the
charge therefor shall be $600 per person per day (or such higher amount as
shall represent Silicon's then current standard charge for the same), plus
reasonable out of pocket expenses. Borrower will not enter into any agreement
with any accounting firm, service bureau or third party to store Borrower's
books or records at any location other than Borrower's Address, without first
obtaining Silicon's written consent, which may be conditioned upon such
accounting firm, service bureau or other third party agreeing to give Silicon
the same rights with respect to access to books and records and related rights
as Silicon has under this Loan Agreement. Borrower waives the benefit of any
accountant-client privilege or other evidentiary privilege precluding or
limiting the disclosure, divulgence or delivery of any of its books and records
(except that Borrower does not waive any attorney-client privilege).
* AT LEAST
5.5 NEGATIVE COVENANTS. Except as may be permitted in the
Schedule, Borrower shall not, without Silicon's prior written consent, do any
of the following: (i) merge or consolidate with another corporation or entity;
(ii) acquire any assets, except in the ordinary course of business; (iii) enter
into any other transaction outside the ordinary course of business; (iv) sell
or transfer any Collateral, except for the sale of finished Inventory in the
ordinary course of Borrower's business, and except for the sale of obsolete or
unneeded Equipment in the ordinary course of business; (v) store any Inventory
or other Collateral with any warehouseman or other third party; (vi) sell any
Inventory on a sale-or-return, guaranteed sale, consignment, or other
contingent basis; (vii) make any loans of any money or other assets; (viii)
incur any debts, outside the ordinary course of business, which would have a
material, adverse effect on Borrower or on the prospect of repayment of the
Obligations; (ix) guarantee or otherwise become liable with respect to the
obligations of another party or entity; (x) pay or declare any dividends on
Borrower's stock (except for dividends payable solely in stock of Borrower);
(xi) redeem, retire, purchase or otherwise acquire, directly or indirectly, any
of Borrower's stock; (xii) make any change in Borrower's capital structure
which would have a material adverse effect on Borrower or on the prospect of
repayment of the Obligations; or (xiii) *; or (xiv) dissolve or elect to
dissolve. Transactions permitted by the foregoing provisions of this Section
are only permitted if no Default or Event of Default would occur as a result of
such transaction.
* [INTENTIONALLY OMITTED]
5.6 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 Borrower, Borrower shall, without expense to
Silicon, make available Borrower and its officers, employees and agents and
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.
5.7 FURTHER ASSURANCES. Borrower agrees, at its expense, on
request by Silicon, to execute all documents and take all actions, 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 the transactions contemplated by this Agreement.
6. TERM.
6.1 MATURITY DATE. This Agreement shall continue in effect until
the maturity date set forth on the Schedule (the "Maturity Date"), subject to
Section 6.3 below.
6.2 EARLY TERMINATION. This Agreement may be terminated prior to
the Maturity Date as follows: (i) by Borrower, effective three Business Days
after written notice of termination is given to Silicon; or (ii) by Silicon at
any time after the occurrence of an Event of Default, without notice, effective
immediately. If this Agreement is terminated by Borrower or by Silicon under
this Section 6.2, Borrower shall pay to Silicon a termination fee in an amount
equal to * of the Maximum Credit Limit, provided that no termination fee shall
be charged if the credit facility hereunder is replaced with a new facility from
another division of Silicon Valley Bank. The termination fee shall be due and
payable on the effective date of termination and thereafter shall bear interest
at a rate equal to the highest rate applicable to any of the Obligations.
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* ONE PERCENT (1.0%)
6.3 PAYMENT OF OBLIGATIONS. On the Maturity Date or on any
earlier effective date of termination, 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 subject to the discretion 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 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 and termination of this Agreement,
Silicon shall promptly deliver to Borrower termination statements, requests for
reconveyances and such other documents as may be required to fully terminate
Silicon's security interests.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1 EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an "Event of Default" under this Agreement, and
Borrower shall give Silicon immediate written notice thereof: (a) Any warranty,
representation, statement, report or certificate made or delivered to Silicon
by Borrower or any of Borrower's officers, employees or agents, now or in the
future, shall be untrue or misleading in a material respect; or (b) 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 shall exceed the Credit Limit *; or (d) 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) Borrower shall fail to 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 (other than a
Permitted Lien) is made on all or any part of the Collateral which is not cured
within 10 ** after the occurrence of the same; or (g) any default or event
of default occurs under any obligation secured by a Permitted Lien, which is
not cured within any applicable cure period or waived in writing by the holder
of the Permitted Lien; or (h) Borrower breaches any material contract or
obligation, which has or may reasonably be expected to have a material adverse
effect on Borrower's business or financial condition; or (i) Dissolution,
termination of existence, insolvency or business failure of Borrower; or
appointment of a receiver, trustee or custodian, for all or any part of the
property of, assignment for the benefit of creditors by, or the commencement of
any proceeding by 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 (j) the commencement of
any proceeding against 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; or (k) revocation or termination of, or
limitation or denial of liability upon, any guaranty of the Obligations or any
attempt to do any of the foregoing, or commencement of proceedings by any
guarantor of any of the Obligations under any bankruptcy or insolvency law; or
(l) revocation or termination of, or limitation or denial of liability upon,
any pledge of any certificate of deposit, securities or other property or asset
of any kind pledged by any third party to secure any or all of the Obligations,
or any attempt to do any of the foregoing, or commencement of proceedings by or
against any such third party under any bankruptcy or insolvency law; or (m)
Borrower makes any payment on account of any indebtedness or obligation which
has been subordinated to the Obligations other than as permitted in the
applicable subordination agreement, or if any Person who has subordinated such
indebtedness or obligations terminates or in any way limits his subordination
agreement; or (n) there shall be a change in the record or beneficial ownership
of an aggregate of more than 20% of the outstanding shares of stock of
Borrower, in one or more transactions, compared to the ownership of outstanding
shares of stock of Borrower in effect on the date hereof, without the prior
written consent of Silicon; or (o) Borrower shall generally not pay its debts
as they become due, or 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; or (p) there shall be a
material adverse change in Borrower's business or financial condition; or (q)
Silicon, acting in good faith and in a commercially reasonable manner, deems
itself insecure because of the occurrence of an event prior to the effective
date hereof of which Silicon had no knowledge on the effective date or because
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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of the occurrence of an event on or subsequent to the effective date ***.
Silicon may cease making any Loans hereunder during any of the above cure
periods, and thereafter if an Event of Default has occurred.
* ; PROVIDED, HOWEVER, THAT IN THE CASE OF OVERADVANCES THAT ARE
CAUSED DIRECTLY AND SOLELY BY THE CHARGING OF INTEREST, FEES, OR SILICON'S
EXPENSES TO BORROWER'S LOAN ACCOUNT, SUCH EVENT SHALL NOT CONSTITUTE AN EVENT
OF DEFAULT IF, WITHIN 3 BUSINESS DAYS OF INCURRING SUCH OVERADVANCE, BORROWER
REPAYS, OR OTHERWISE ELIMINATES, SUCH OVERADVANCE;
** BUSINESS DAYS
*** ; OR (R) AN "EVENT OF DEFAULT" HAS OCCURRED AND IS CONTINUING
UNDER THAT CERTAIN OTHER LOAN AND SECURITY AGREEMENT, DATED AS OF JUNE 28, 2000
(AS AMENDED, RESTATED, SUPPLEMENTED, OR OTHERWISE MODIFIED FROM TIME TO TIME),
BETWEEN BORROWER AND SILICON VALLEY BANK
7.2 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 Borrower), may do any one
or more of the following: (a) Cease making Loans or otherwise extending credit
to 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 Borrower hereby authorizes Silicon without judicial
process to enter onto any of 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 of the Collateral by Court process, 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 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 Borrower, and to remove the
Collateral to such locations as Silicon may deem advisable; (e) 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 Borrower's premises, vehicles, hoists, lifts, cranes,
equipment and all other property without charge; (f) 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 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 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 Borrower of any liability Borrower
may have if any Collateral is defective as to title or physical condition or
otherwise at the time of sale; (g) Demand payment of, and collect any
Receivables and General Intangibles comprising Collateral and, in connection
therewith, Borrower irrevocably authorizes Silicon to endorse or sign
Borrower's name on all collections, receipts, instruments and other documents,
to take possession of and open mail addressed to 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 Receivables and the like for less than face value;
(h) Offset against any sums in any of Borrower's general, special or other
Deposit Accounts with Silicon; and (i) Demand and receive possession of any of
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.
7.3 STANDARDS FOR DETERMINING COMMERCIAL REASONABLENESS. 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
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)
8
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 Borrower any and all information
concerning the same. Silicon shall be free to employ other methods of noticing
and selling the Collateral, in its discretion, if they are commercially
reasonable.
7.4 POWER OF ATTORNEY. Upon the occurrence of any Event of
Default, without limiting Silicon's other rights and remedies, 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 Borrower, and at Borrower's expense, to do any or all of
the following, in Borrower's name or otherwise, but Silicon agrees to exercise
the following powers in a commercially reasonable manner: (a) Execute on behalf
of Borrower any documents that Silicon may, in its sole discretion, deem
advisable in order to perfect and maintain Silicon's security interest in the
Collateral, or in order to exercise a right of 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 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 Borrower, any invoices relating to any
Receivable, 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 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 Receivables 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 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, 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
Borrower pursuant to this Agreement and any other present or future agreements.
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 Borrower.
7.5 APPLICATION OF PROCEEDS. All proceeds realized as the result
of any sale of the Collateral shall be applied by Silicon first to the
reasonable 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 its sole
discretion. Any surplus shall be paid to Borrower or other persons legally
entitled thereto; 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 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.
7.6 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 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.
8. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:
"Account Debtor" means the obligor on a Receivable.
"Affiliate" means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of
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such Person, or any Person controlling, controlled by or under common control
with such Person.
"Bank of America Note" means that certain promissory note, dated
September 27, 2000, made by Borrower to the order of Bank of America in the
original principal amount of $700,000.
"Business Day" means a day on which Silicon is open for business.
"Code" means the Uniform Commercial Code as adopted and in effect in
the State of California from time to time.
"Collateral" has the meaning set forth in Section 2.1 above.
"Default" means any event which with notice or passage of time or
both, would constitute an Event of Default.
"Deposit Account" has the meaning set forth in Section 9105 of the
Code.
"Eligible Inventory" [NOT APPLICABLE].
"Eligible Receivables" means Receivables arising in the ordinary
course of Borrower's business from the sale of goods or rendition of services,
which Silicon, in its sole judgment, shall deem eligible for borrowing, based
on such considerations as Silicon may from time to time deem appropriate.
Without limiting the fact that the determination of which Receivables are
eligible for borrowing is a matter of Silicon's discretion, the following (the
"Minimum Eligibility Requirements") are the minimum requirements for a
Receivable to be an Eligible Receivable: (i) the Receivable must not be
outstanding for more than 90 days from its invoice date, (ii) the Receivable
must not represent progress xxxxxxxx, * or be due under a fulfillment or
requirements contract with the Account Debtor, (iii) the Receivable must not be
subject to any contingencies (including Receivables arising from sales on
consignment, guaranteed sale or other terms pursuant to which payment by the
Account Debtor may be conditional), (iv) the Receivable must not be owing from
an Account Debtor with whom the Borrower has any dispute (whether or not
relating to the particular Receivable), (v) the Receivable must not be owing
from an Affiliate of Borrower, (vi) the Receivable must not be owing from an
Account Debtor which is subject to any insolvency or bankruptcy proceeding, or
whose financial condition is not acceptable to Silicon, or which, fails or goes
out of a material portion of its business, (vii) the Receivable must not be
owing from the United States or any department, agency or instrumentality
thereof (unless there has been compliance, to Silicon's satisfaction, with the
United States Assignment of Claims Act), (viii) the Receivable must not be
owing from an Account Debtor located outside the United States or Canada
(unless pre-approved by Silicon in its discretion in writing, or backed by a
letter of credit satisfactory to Silicon, or FCIA insured satisfactory to
Silicon), (ix) the Receivable must not be owing from an Account Debtor to whom
Borrower is or may be liable for goods purchased from such Account Debtor or
otherwise. Receivables owing from one Account Debtor will not be deemed
Eligible Receivables to the extent they exceed 25% of the total Receivables
outstanding. In addition, if more than 50% of the Receivables owing from an
Account Debtor are outstanding more than 90 days from their invoice date
(without regard to unapplied credits) or are otherwise not eligible
Receivables, then all Receivables owing from that Account Debtor will be deemed
ineligible for borrowing. Silicon may, from time to time, in its discretion,
revise the Minimum Eligibility Requirements, upon written notice to the
Borrower.
* PREPAID CUSTOMER DEPOSITS, PREPAID MAINTENANCE/SUPPORT, OR OTHER
ADVANCE XXXXXXXX THAT ARE DUE PRIOR TO THE COMPLETION OF PERFORMANCE BY
BORROWER OF THE SUBJECT CONTRACT FOR GOODS OR SERVICES,
"Equipment" means all of Borrower's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in Borrower's operations or owned by Borrower and any interest
in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions or improvements to any of the foregoing,
wherever located.
"Event of Default" means any of the events set forth in Section 7.1 of
this Agreement.
"General Intangibles" means all general intangibles of Borrower,
whether now owned or hereafter created or acquired by Borrower, including,
without limitation, all choses in action, causes of action, corporate or other
business records, Deposit Accounts, inventions, designs, drawings, blueprints,
patents, patent applications, trademarks and the goodwill of the business
symbolized thereby, names, trade names, trade secrets, goodwill, copyrights,
registrations, licenses, franchises, customer lists, security and other
deposits, 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, rights to
purchase or sell real or personal property, rights as a licensor or licensee of
any kind, royalties, telephone numbers, proprietary information, purchase
orders, and all insurance policies and claims (including without limitation
life insurance, key man insurance, credit insurance, liability insurance,
property insurance and other insurance), tax refunds and claims, computer
programs, discs, tapes and tape files, claims under guaranties, security
interests or other security held by or granted to Borrower, all rights to
indemnification and all other intangible property of every kind and nature
(other than Receivables).
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SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
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"Inventory" means all of Borrower's now owned and hereafter acquired
goods, merchandise or other personal property, wherever located, to be
furnished under any contract of service or held for sale or lease (including
without limitation all raw materials, work in process, finished goods and goods
in transit), and all materials and supplies of every kind, nature and
description which are or might be used or consumed in Borrower's business or
used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise or other personal property, and
all warehouse receipts, documents of title and other documents representing any
of the foregoing.
"Obligations" means all present and future Loans, advances, debts,
liabilities, obligations, guaranties, covenants, duties and indebtedness at any
time owing by Borrower to Silicon, whether evidenced by this Agreement or any
note or other instrument or document, whether arising from an extension of
credit, opening of a letter of credit, banker's acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect (including, without
limitation, those acquired by assignment and any participation by Silicon in
Borrower's debts owing to others), absolute or contingent, due or to become
due, including, without limitation, all interest, charges, expenses, fees,
attorney's fees, expert witness fees, audit fees, letter of credit fees,
collateral monitoring fees, closing fees, facility fees, termination fees,
minimum interest charges and any other sums chargeable to Borrower under this
Agreement or under any other present or future instrument or agreement between
Borrower and Silicon.
"Permitted Liens" means the following: (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, which consent shall not
be unreasonably withheld; (v) security interests being terminated substantially
concurrently with this Agreement; (vi) liens of materialmen, mechanics,
warehousemen, carriers, or other similar liens arising in the ordinary course
of business and securing obligations which are not delinquent; (vii) liens
incurred in connection with the extension, renewal or refinancing of the
indebtedness secured by liens of the type described above in clauses (i) or
(ii) above, provided that any extension, renewal or replacement lien is limited
to the property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase; (viii)
Liens in favor of customs and revenue authorities which secure payment of
customs duties in connection with the importation of goods *. 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 not to take any action to enforce its subordinate security interest
so long as any Obligations remain outstanding, and that 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.
* ; AND (IX) A SECURITY INTEREST IN ONE OR MORE CERTIFICATES OF
DEPOSIT OF BORROWER IN AN AGGREGATE AMOUNT NOT TO EXCEED $700,000 TO SECURE
SOLELY BORROWER'S OBLIGATIONS IN RESPECT OF THE BANK OF AMERICA NOTE, THE
PRINCIPAL AMOUNT OF WHICH OBLIGATIONS MAY NOT EXCEED $700,000 IN THE AGGREGATE
AT ANY ONE TIME OUTSTANDING
"Person" means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
government, or any agency or political division thereof, or any other entity.
"Receivables" means all of Borrower's now owned and hereafter acquired
accounts (whether or not earned by performance), letters of credit, contract
rights, chattel paper, instruments, securities, securities accounts, investment
property, documents and all other forms of obligations at any time owing to
Borrower, all guaranties and other security therefor, all merchandise returned
to or repossessed by Borrower, and all rights of stoppage in transit and all
other rights or remedies of an unpaid vendor, lienor or secured party.
"Reserves" means, as of any date of determination, such amounts as
Silicon may from time to time establish and revise in good faith reducing the
amount of Loans, Letters of Credit and other financial accommodations which
would otherwise be available to Borrower under the lending formula(s) provided
in the Schedule: (a) to reflect events, conditions, contingencies or risks
which, as determined by Silicon in good faith, do or may affect (i) the
Collateral or any other property which is security for the Obligations or its
value (including without limitation any increase in delinquencies of
Receivables), (ii) the assets, business or prospects of Borrower or any
Guarantor, or (iii) the security interests and other rights of Silicon in the
Collateral (including the enforceability, perfection and priority thereof); or
(b) to reflect Silicon's good faith belief that any collateral report or
financial information furnished by or on behalf of Borrower or any Guarantor to
Silicon is or may have been incomplete, inaccurate or misleading in any
material respect *; or (c) in respect of any state of facts which Silicon
determines in good faith constitutes an Event of Default or may, with notice or
passage of time or both, constitute an Event of Default.
* , INCLUDING, WITHOUT LIMITATION, TO REFLECT CHANGES IN BORROWER'S
BAD DEBT WRITE-DOWNS, DISCOUNTS, ADVERTISING ALLOWANCES, CREDITS, OR OTHER
DILUTIVE ITEMS WITH RESPECT TO THE RECEIVABLES AND IN BORROWER'S COLLECTIONS
WITH RESPECT TO RECEIVABLES
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Other Terms. All accounting terms used in this Agreement, unless
otherwise indicated, shall have the meanings given to such terms in accordance
with generally accepted accounting principles, consistently applied. All other
terms contained in this Agreement, unless otherwise indicated, shall have the
meanings provided by the Code, to the extent such terms are defined therein.
9. GENERAL PROVISIONS.
9.1 INTEREST COMPUTATION. In computing interest on the
Obligations, all checks, wire transfers and other items of payment received by
Silicon (including proceeds of Receivables and payment of the Obligations in
full) shall be deemed applied by Silicon on account of the Obligations * three
Business Days after receipt by Silicon of immediately available funds, and, for
purposes of the foregoing, any such funds received after 12:00 Noon on any day
shall be deemed received on the next Business Day. Silicon shall not, however,
be required to credit Borrower's account for the amount of any item of payment
which is unsatisfactory to Silicon in its sole discretion, and Silicon may
charge Borrower's loan account for the amount of any item of payment which is
returned to Silicon unpaid.
* TWO
9.2 APPLICATION OF PAYMENTS. All payments with respect to the
Obligations may be applied, and in Silicon's sole discretion reversed and
re-applied, to the Obligations, in such order and manner as Silicon shall
determine in its sole discretion.
9.3 CHARGES TO ACCOUNTS. 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. Silicon may also, in its discretion, charge any
monetary Obligations to Borrower's Deposit Accounts maintained with Silicon.
9.4 MONTHLY ACCOUNTINGS. Silicon shall provide Borrower monthly
with an account of advances, charges, expenses and payments made pursuant to
this Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Silicon), unless Borrower
notifies Silicon in writing to the contrary within thirty days after each
account is rendered, describing the nature of any alleged errors or admissions.
9.5 NOTICES. All notices to be given under this Agreement shall
be in writing and shall be given either personally or by reputable private
delivery service or by regular first-class mail, or certified mail return
receipt requested, addressed to Silicon or 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. Notices to Silicon shall be directed to the
Commercial Finance Division, to the attention of the Division Manager or the
Division Credit Manager. All notices shall be deemed to have been given upon
delivery in the case of notices personally delivered, or at the expiration of
one Business Day following delivery to the private delivery service, or two
Business Days following the deposit thereof in the United States mail, with
postage prepaid.
9.6 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.
9.7 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 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.
9.8 WAIVERS. The failure of Silicon at any time or times to
require Borrower to strictly comply with any of the provisions of this
Agreement or any other present or future agreement between 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, and whether or not
similar. None of the provisions of this Agreement or any other agreement now or
in the future executed by 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 authorized officer of
Silicon and delivered to Borrower. 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 Borrower is or may in any way be liable, and notice of any
action taken by Silicon, unless expressly required by this Agreement.
9.9 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 Borrower or any other party through the ordinary negligence of
Silicon, or any of its directors, officers, employees, agents, attorneys or any
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other Person affiliated with or representing Silicon, but nothing herein shall
relieve Silicon from liability for its own gross negligence or willful
misconduct.
9.10 AMENDMENT. The terms and provisions of this Agreement may not
be waived or amended, except in a writing executed by Borrower and a duly
authorized officer of Silicon.
9.11 TIME OF ESSENCE. Time is of the essence in the performance by
Borrower of each and every obligation under this Agreement.
9.12 ATTORNEYS FEES AND COSTS. 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 or Borrower; 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 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
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 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
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.
9.13 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 Borrower and Silicon; provided,
however, that 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
Borrower from its liability for the Obligations.
9.14 JOINT AND SEVERAL LIABILITY. If 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.
9.15 LIMITATION OF ACTIONS. Any claim or cause of action by
Borrower against Silicon, its directors, officers, employees, agents,
accountants or attorneys, based upon, arising from, or relating to this Loan
Agreement, or any other present or future document or agreement, or any other
transaction contemplated hereby or thereby or relating hereto or thereto, or
any other matter, cause or thing whatsoever, occurred, done, omitted or
suffered to be done by Silicon, its directors, officers, employees, agents,
accountants or attorneys, shall be barred unless asserted by Borrower by the
commencement of an action or proceeding in a court of competent jurisdiction by
the filing of a complaint within one year after the first act, occurrence or
omission upon which such claim or cause of action, or any part thereof, is
based, and the service of a summons and complaint on an officer of Silicon, or
on any other person authorized to accept service on behalf of Silicon, within
thirty (30) days thereafter. Borrower agrees that such one-year period is a
reasonable and sufficient time for Borrower to investigate and act upon any
such claim or cause of action. The one-year period provided herein shall not be
waived, tolled, or extended except by the written consent of Silicon in its
sole discretion. This provision shall survive any termination of this Loan
Agreement or any other present or future agreement.
9.16 PARAGRAPH HEADINGS; CONSTRUCTION. Paragraph headings are only
used in this Agreement for convenience. Borrower and Silicon acknowledge 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. The term
"including", whenever used in this Agreement, shall mean "including (but not
limited to)". 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 Borrower under any
rule of construction or otherwise.
9.17 GOVERNING LAW; JURISDICTION; VENUE. This Agreement and all
acts and transactions hereunder and all rights and obligations of Silicon and
Borrower shall be governed by the laws of the State of California. As a
material part of the consideration to Silicon to enter into this Agreement,
Borrower (i) agrees that all actions and proceedings relating directly or
indirectly to this Agreement shall, at Silicon's option, be litigated in courts
located
13
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
within California, and that the exclusive venue therefor shall be Santa
Xxxxx 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 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.
9.18 MUTUAL WAIVER OF JURY TRIAL. BORROWER AND SILICON EACH HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT
OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN SILICON AND BORROWER, OR ANY CONDUCT,
ACTS OR OMISSIONS OF SILICON OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH SILICON OR
BORROWER, IN ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE.
[Signature page immediately follows]
14
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
BORROWER:
FIRSTWAVE TECHNOLOGIES, INC.
BY /S/XXXXXXX X. XXXXX
-------------------------------------------
PRESIDENT OR VICE PRESIDENT
BY /S/XXXXXX X. XXXXXX
-------------------------------------------
SECRETARY OR ASS'T SECRETARY
SILICON:
SILICON VALLEY BANK
BY /S/ XXXXXXX XXXX
-------------------------------------------
TITLE VICE PRESIDENT
15
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
SILICON VALLEY BANK
SCHEDULE TO
LOAN AND SECURITY AGREEMENT
BORROWER: FIRSTWAVE TECHNOLOGIES, INC.
ADDRESS: 0000 XXXXX XXXXX XXXX, XXXXX 0000
XXXXXXX, XXXXXXX 00000
DATE: DECEMBER 19, 2000
This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-borrower of even date.
===============================================================================
1. CREDIT LIMIT
(Section 1.1): An amount not to exceed the lesser of: (i)
$1,750,000 at any one time outstanding (the
"Maximum Credit Limit"); or (ii) 80% of the
amount of Borrower's Eligible Receivables
(as defined in Section 8 above).
Cash Management Services and Reserves.
Borrower may use up to $100,000 of Loans
available hereunder for Silicon's Cash
Management Services (as defined below),
including, merchant services, business
credit card, ACH and other services
identified in the cash management services
agreement between Borrower and Silicon
related to such service (the "Cash
Management Services"). Silicon may, in its
sole discretion, reserve against Loans which
would otherwise be available hereunder such
sums as Silicon shall determine in
connection with the Cash Management
Services, and Silicon may charge to
Borrower's Loan account, any amounts that
may become due or owing to Silicon in
connection with the Cash Management
Services. Borrower agrees to execute and
deliver to Silicon all standard form
applications and agreements of Silicon in
connection with the Cash Management
Services, and, without limiting any of the
terms of such applications and agreements,
Borrower will pay all standard fees and
charges of Silicon in connection with the
Cash Management Services. The Cash
Management Services shall terminate on the
Maturity Date.
===============================================================================
2. INTEREST.
INTEREST RATE
(Section 1.2):
A rate equal to the "Prime Rate" in effect
from time to time, plus 1.5% 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 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.
MINIMUM MONTHLY
INTEREST (Section 1.2): N/A.
===============================================================================
3. FEES (Section 1.4):
Loan Fee: $17,500, payable concurrently herewith.
16
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
Collateral Monitoring
Fee: $1,000, per month, payable in arrears
(prorated for any partial month at the
beginning and at termination of this
Agreement).
Unused Line Fee: In the event, in any calendar month (or
portion thereof at the beginning and end of
the term hereof), the average daily
principal balance of the Loans outstanding
during the month is less than the amount of
the Maximum Credit Limit, Borrower shall
pay Silicon an unused line fee in an amount
equal to 0.50% per annum on the difference
between the amount of the Maximum Credit
Limit and the average daily principal
balance of the Loans outstanding during the
month, which unused line fee shall be
computed and paid monthly, in arrears, on
the first day of the following month.
===============================================================================
4. MATURITY DATE
(Section 6.1): One year from the date of this Agreement
(as the same may be extended (if at all)
pursuant to this provision, the "Maturity
Date"). The Maturity Date then in effect
may be extended, and this Agreement may be
renewed, for an additional term of one year
solely if Silicon, in its sole discretion,
gives Borrower written notice, not less
than sixty days prior to the Maturity Date
then in effect, that Silicon elects to
extend such Maturity Date, and renew the
term of this Agreement, for such an
additional term of one year from such
Maturity Date, and Borrower shall, upon
each such renewal (if any), pay Silicon a
renewal fee in the amount of $10,000, which
shall be in addition to all interest and
other sums payable to Silicon and is not
refundable.
===============================================================================
5. FINANCIAL COVENANTS
(Section 5.1): Borrower shall comply with each of the
following covenant(s). Compliance shall be
determined as of the end of each month,
except as otherwise specifically provided
below:
MINIMUM TANGIBLE NET
WORTH: Borrower shall maintain a Tangible Net
Worth of not less than $4,000,000.
DEFINITIONS. For purposes of the foregoing financial
covenants, the following term shall have
the following meaning: "Liabilities" shall
have the meaning ascribed thereto by
generally accepted accounting principles.
"Tangible Net Worth" shall mean the excess
of total assets over total liabilities,
determined in accordance with generally
accepted accounting principles, with the
following adjustments:
(A) there shall be excluded from
assets: (i) notes, accounts
receivable and other obligations
owing to the Borrower from its
officers or other Affiliates, and
(ii) all assets which would be
classified as intangible assets
under generally accepted
accounting principles, including
without limitation goodwill,
licenses, patents, trademarks,
trade names, copyrights,
capitalized software and
organizational costs, licenses and
franchises
(B) there shall be excluded from
liabilities: all indebtedness
which is subordinated to the
Obligations under a subordination
agreement in form specified by
Silicon or by language in the
instrument evidencing the
indebtedness which is acceptable
to Silicon in its discretion.
===============================================================================
6. REPORTING.
(Section 5.3):
Borrower shall provide Silicon with the
following:
1. Monthly Receivable agings, aged by
invoice date, within fifteen days
after the end of each month.
2. Monthly accounts payable agings,
aged by invoice date, and
outstanding or held check
registers, if any, within fifteen
days after the end of each month.
17
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
3. Monthly reconciliations of
Receivable agings (aged by invoice
date), transaction reports, and
general ledger, within fifteen
days after the end of each month.
4. Monthly perpetual inventory
reports for the Inventory valued
on a first-in, first-out basis at
the lower of cost or market (in
accordance with generally accepted
accounting principles) or such
other inventory reports as are
reasonably requested by Silicon,
all within fifteen days after the
end of each month.
5. Monthly unaudited financial
statements, as soon as available,
and in any event within thirty
days after the end of each month.
6. Monthly Compliance Certificates,
within thirty days after the end
of each month, in such form as
Silicon shall reasonably specify,
signed by the Chief Financial
Officer of Borrower, certifying
that as of the end of such month
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 in this
Agreement and such other
information as Silicon shall
reasonably request, including,
without limitation, a statement
that at the end of such month
there were no held checks.
7. Quarterly unaudited financial
statements, as soon as available,
and in any event within forty-five
days after the end of each fiscal
quarter of Borrower.
8. Annual operating budgets
(including income statements,
balance sheets and cash flow
statements, by month) for the
upcoming fiscal year of Borrower
within thirty days prior to the
end of each fiscal year of
Borrower.
9. Annual financial statements, as
soon as available, and in any
event within 120 days following
the end of Borrower's fiscal year,
certified by independent certified
public accountants acceptable to
Silicon.
===============================================================================
7. COMPENSATION [intentionally omitted]
===============================================================================
8. BORROWER INFORMATION:
PRIOR NAMES OF
BORROWER
(Section 3.2): See Representations and Warranties dated
October 27, 2000
PRIOR TRADE
NAMES OF BORROWER
(Section 3.2): See Representations and Warranties dated
October 27, 2000
EXISTING TRADE
NAMES OF BORROWER
(Section 3.2): See Representations and Warranties dated
October 27, 2000
OTHER LOCATIONS AND
ADDRESSES (Section 3.3): See Representations and Warranties dated
October 27, 2000
MATERIAL ADVERSE
LITIGATION
(Section 3.10): None
18
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
===============================================================================
9. OTHER COVENANTS
(Section 5.1): Borrower shall at all times comply with
all of the following additional covenants:
(A) BANKING RELATIONSHIP. Borrower
shall at all times maintain its
primary banking relationship with
Silicon.
(B) SUBORDINATION OF INSIDE DEBT. All
present and future indebtedness of
the Borrower to its officers,
directors and shareholders
("Inside Debt") shall, at all
times, be subordinated to the
Obligations pursuant to a
subordination agreement on
Silicon's standard form. Borrower
represents and warrants that there
is no Inside Debt presently
outstanding, except for the
following: NONE. Prior to
incurring any Inside Debt in the
future, Borrower shall cause the
person to whom such Inside Debt
will be owed to execute and
deliver to Silicon a subordination
agreement on Silicon's standard
form.
(C) PATENTS, TRADEMARKS AND
COPYRIGHTS. Concurrently with the
execution of this Agreement,
Borrower shall execute and deliver
to Silicon, on Silicon's standard
form(s), any security agreement(s)
and other documentation which
Silicon deems necessary for filing
in the United States Patent and
Trademark Office, the United
States Copyright Office, and any
other governmental office, with
respect to Borrower's copyrights,
patents, trademarks and related
collateral. Borrower will register
with the United States Copyright
Office (i) any maskworks and
computer software that generates
Receivables from the sale or
licensing thereof or that is
otherwise material to the business
of Borrower (in each case, other
than maskworks or computer
software under development) it
has, develops or acquires,
including those in Exhibit A to
the Intellectual Property Security
Agreement, within 30 days of the
date of this Agreement, and (ii)
any additional maskworks and
computer software rights developed
or acquired, including significant
revisions, additions or
improvements to the maskworks or
computer software or revisions,
additions or improvements which
significantly improve the
functionality of the maskworks or
computer software, after the date
of this Agreement before the sale
or licensing to any third party of
the maskworks or computer software
or any product based on or
containing any maskworks or
computer software, and Borrower
will execute such additional
security agreement(s) and other
documentation which Silicon deems
necessary for filing with respect
to such additional registered
copyright(s). Borrower will
promptly notify Silicon upon
Borrower's filing of any
application or registration of any
patent or trademark rights with
the United States Patent and
Trademark Office and Borrower will
execute and deliver any and all
instruments and documents as Bank
may require to evidence or perfect
Bank's security interest in such
application or registration.
Borrower will: (i) protect, defend
and maintain the validity and
enforceability of the copyrights,
patents, and trademarks; (ii)
promptly advise Bank in writing of
material infringements of the
copyrights, patents, or trademarks
of which Borrower is or becomes
aware; and (iii) not allow any
material item of copyrights,
patents, or trademarks to be
abandoned, forfeited or dedicated
to the public without Bank's
written consent.
(D) WARRANTS. Borrower shall provide
Silicon with five-year warrants to
purchase the Designated Number (as
defined herein) of shares of
common stock of the Borrower, at a
price per share equal to the
Designated Price (as defined
herein), on terms acceptable to
Silicon, all as set forth in the
Warrant to Purchase Stock (the
"Warrant") and related documents
(including but not limited to any
Anti-Dilution Agreement or any
Registration Rights Agreement as
may be required by Silicon) being
executed concurrently with this
Agreement. Said warrants shall be
deemed fully earned on the date
hereof, shall be in addition to
all interest and other fees, and
shall be non-refundable. As used
herein, the term "Designated
Number" means the quotient
obtained by dividing $52,500 by
the Designated Price. As used
herein, the term "Designated
Price" means the closing price of
the Shares reported for the
trading day immediately before the
date of this Agreement.
19
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
(E) 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
each Subsidiary of Borrower 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 each
Subsidiary now outstanding or
hereafter issued and 100% of all
options and warrants to acquire
stock of each Subsidiary hereafter
issued. Borrower represents and
warrants that there are no
outstanding options or warrants to
acquire stock of any Subsidiary.
[Signature page immediately follows]
20
SILICON VALLEY BANK LOAN AND SECURITY AGREEMENT
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
Borrower: Silicon:
FIRSTWAVE TECHNOLOGIES, INC. SILICON VALLEY BANK
By: /s/Xxxxxxx X. Xxxxx By /s/ Xxxxxxx Xxxx
President or Vice President Title Vice President
By /s/Xxxxxx X. Xxxxxx
Secretary or Ass't Secretary
21
SILICON VALLEY BANK CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
-------------------------------------------------------------------------------
SILICON VALLEY BANK
CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
BORROWER: FIRSTWAVE TECHNOLOGIES, INC.,
A CORPORATION ORGANIZED UNDER THE
LAWS OF THE STATE OF GEORGIA
DATE: DECEMBER 19, 2000
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, in connection with the foregoing loans, this
corporation shall issue to Silicon five-year warrants to purchase the
Designated Number (as defined below) of shares of common stock of this
corporation, at a price per share equal to the Designated Price (as
defined below), on the terms and provisions of Silicon's standard form
Warrant to Purchase Stock and related documents, with such changes therein
as Silicon and this corporation shall agree; any officer of this
corporation is hereby authorized to execute and deliver such Warrant to
Purchase Stock and related documents, and all documents and instruments
relating thereto, in such form and containing such additional provisions
as said authorized officers may approve, and the execution thereof by said
authorized officers shall be conclusive evidence of such approval. As used
herein, the term "Designated Number" means the quotient obtained by
dividing $52,500 by the Designated Price. As used herein, the term
"Designated Price" means the closing price of the Shares reported for the
trading day immediately before the date of the Loan and Security Agreement
being entered into by this corporation and Silicon on or about the date
such warrants are issued.
22
SILICON VALLEY BANK CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
-------------------------------------------------------------------------------
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.
23
SILICON VALLEY BANK CERTIFIED RESOLUTION AND INCUMBENCY CERTIFICATE
________________________________________________________________________________
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
----- --------- -----------------
Xxxxxxx X. Xxxxx President & CEO X /s/Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx Vice President & Secretary X /s/ Xxxxxx X. Xxxxxx
______________________________ _________________________________ X___________________________
______________________________ _________________________________ X___________________________
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary or
Assistant Secretary on the date set forth above.
/s/Xxxxxx X. Xxxxxx
Secretary or Assistant Secretary
24
SILICON VALLEY BANK
NOTICE OF SECURITY INTEREST
December 19, 2000
Certified Mail, Return Receipt Requested
DB XXXX XXXXX
000 X. Xxxxxxxxxxxx Xxx., Xxx. 000
Xxxxxx, XX 00000
Re: FIRSTWAVE TECHNOLOGIES, INC.
Ladies and Gentlemen:
Notice is hereby given that your above-named customer has granted a
security interest in all of its present and future deposit accounts maintained
with your institution, general and special, and of every other kind, to Silicon
Valley Bank, 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000.
Please contact the undersigned at 000-000-0000, if you have any
questions about this matter.
Sincerely yours,
Silicon Valley Bank
By /s/ Xxxxxxx Xxxx
Title Vice President
FirstWave Technologies, Inc.
By /s/Xxxxxxx X. Xxxxx
Title President
