EXHIBIT 10.2
EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT
This EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (the "Exim Agreement")
is entered into as of July 25, 2000, by and between SILICON VALLEY BANK, a
California-chartered bank ("Bank"), with its principal place of business at
0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000 and with a loan production office
located at Wellesley Office Park, 00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000, doing business under the name "Silicon Valley East" ("Bank") and
SEACHANGE INTERNATIONAL, INC., a Delaware corporation with its chief executive
office located at 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (the
"Borrower").
RECITALS
A. Borrower and Bank are parties to that certain Loan and Security
Agreement dated November 10, 1998 (as amended to date, the "Domestic
Agreement"), together with related documents executed in conjunction therewith.
B. Borrower and Bank desire in this Exim Agreement to set forth their
agreement with respect to a working capital facility to be guaranteed by the
Export-Import Bank of the United States (the "Exim Bank").
AGREEMENT
The Parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
----------------------------
1.1 Definitions. Except as otherwise defined, terms that are capitalized
-----------
in this Exim Agreement shall have the meanings assigned in the Domestic Loan
Documents. As used in this Exim Agreement, the following terms shall have the
following definitions:
"Accounts" means all presently existing and hereafter arising
accounts, contract rights, and all other forms of obligations owing to
Borrower arising out of the sale or lease of goods (including, without
limitation, the licensing of software and other technology) or the
rendering of services by Borrower, whether or not earned by performance,
and any and all credit insurance, guaranties, and other security therefor,
as well as all merchandise returned to or reclaimed by Borrower and
Borrower's books relating to any of the foregoing.
"Advances" means any loans or other extensions of credit hereunder.
"Borrower Agreement" means the Export-Import Bank of the United States
Working Capital Guarantee Program Borrower Agreement between Borrower and
Bank.
"Borrowing Base" means an amount equal to (i) ninety percent (90%) of
Exim Eligible Foreign Accounts which Exim Eligible Foreign Accounts are
billed and collected by the Borrower in the United States, plus (ii) the
----
lesser of (A) Seven Hundred Fifty Thousand Dollars ($750,000.00) or (B)
fifty (50%) percent of Export-Related Inventory Value of Eligible Export-
Related Inventory which is determined acceptable by the Bank.
"Collateral" is the property described on Exhibit 4.
---------
"Domestic Agreement" has the meaning set forth in recital paragraph A.
"Domestic Loan Documents" means the Domestic Agreement and all
instruments, documents, and agreements executed in connection with the
Domestic Agreement.
"Eligible Export-Related Inventory" shall have the meaning set forth for
such term in the Borrower Agreement.
"Exim Bank" means Export-Import Bank of the United States.
"Exim Bank Expenses" means all: reasonable costs or expenses (including
reasonable attorneys' fees and expenses) incurred in connection with the
preparation, negotiation, and administration of the Exim Loan Documents,
including any costs incurred in relation to opposing or seeking to obtain relief
from any stay or restructuring order prohibiting Bank from exercising its rights
as a secured creditor, foreclosing upon or disposing of Collateral, or such
related matters; and Bank's reasonable attorneys' fees and expenses incurred in
enforcing or defending the Exim Loan Documents, whether or not suit is brought,
unless a final court of competent jurisdiction finds the Bank acted with gross
negligence or willful misconduct.
"Exim Committed Line" means Three Million Dollars ($3,000,000.00).
"Exim Eligible Foreign Accounts" means those Accounts payable in United
States Dollars that arise in the ordinary course of Borrower's business and (i)
with respect to which the account debtor is not a resident of the United States;
(ii) that have been validly assigned or pledged to Bank in a manner satisfactory
to the Bank giving the Bank a first priority perfected security interest, or its
equivalent, in such Accounts, (iii) comply with all of Borrower's
representations and warranties to Bank, and (iv) that either (A) the Bank
approves on a case by case basis or (B) are supported by letter(s) of credit
acceptable to Bank; standards of eligibility may be fixed revised from time to
time by Bank in Bank's reasonable judgment and upon notification thereof to the
Borrower in accordance with the provisions hereof. Exim Eligible Foreign
Accounts shall not include the following:
(a) Accounts with a term in excess of one hundred twenty (120) days;
(b) Accounts that the account debtor has failed to pay within sixty
(60) calendar days of the original due date of the invoice unless such
accounts are insured through Exim Bank export credit insurance for
comprehensive commercial and political risk, or through Exim Bank approved
private insurers for comparable coverage, in which case ninety (90)
calendar days shall apply;
(c) Account with respect to an account debtor, twenty five percent
(25%) or more of whose Accounts the account debtor has failed to pay within
one hundred twenty (120) days of the original date of invoice;
(d) Accounts evidenced by a letter of credit until the date of
shipment of the items covered by the subject letter of credit;
(e) Accounts with respect to which an invoice has not been sent;
(f) Accounts with respect to which the account debtor is an
Affiliate, officer or director of Borrower;
(g) Accounts with respect to which the account debtor is located in a
country in which Exim Bank is legally prohibited from doing business as
designated in the Country Limitation Schedule (as such term is defined in
the Borrower Agreement);
(h) Accounts with respect to which the account debtor is located in a
country in which Exim Bank coverage is not available for commercial
reasons;
-2-
(i) Accounts with respect to which Borrower is liable to the account
debtor for goods sold or services rendered by the account debtor to
Borrower, but only to the extent of Borrower's liability to such account
debtor.
(j) Accounts with respect to which the account debtor has disputed
liability or makes any claim with respect thereto (but only to the extent
of the amount subject to such dispute or claim), or is subject to any
Insolvency Proceeding, or becomes insolvent, or goes out of business;
(k) Accounts with respect to an account debtor, including
Subsidiaries and Affiliates, whose total obligations to Borrower exceed
twenty-five percent (25%) of the aggregate dollar amount of all Accounts,
only to the extent such obligations exceed such percentage, except as
approved in writing by Bank;
(l) Accounts generated by the sale of products purchased for military
purposes or that are due and payable from a military Buyer;
(m) Accounts, if any, generated by sales of Inventory which
constitutes defense articles or defense services;
(n) Accounts payable in currency other than Dollars, except as may be
approved in writing by the Bank and the Exim Bank;
(o) Accounts which are due and owing and the collection of which must
be made outside the United States;
(p) Accounts the collection of which Bank or Exim Bank determines in
its reasonable judgment to be doubtful; and
(q) Any account which is not an "Eligible Export-Related Accounts
Receivable", as such term is defined in the Borrower Agreement.
"Exim Guarantee" means that certain Master Guarantee Agreement or other
agreement, as amended from time to time, the terms of which are incorporated by
reference into this Exim Agreement, pursuant to which Exim Bank guarantees
Borrower's obligations under this Exim Agreement.
"Exim Loan Documents" means, collectively, this Exim Agreement, the
Domestic Loan Documents, any note or notes executed by Borrower, and any other
agreement entered into between Borrower and Bank in connection with this Exim
Agreement, all as amended or extended from time to time.
"Exim Maturity Date" means the earliest of (i) the Revolving Maturity Date
under the Domestic Loan Documents, or (ii) March 31, 2001.
"Export-Related Inventory Value" shall have the meaning set forth in the
Borrower Agreement.
"Inventory" shall mean "Export-Related Inventory" as such term is defined
in the Borrower Agreement.
"Note" is defined in Section 2.1.1.
"Obligations" shall mean all debts, principal, interest, Exim Bank
Expenses arising under the Exim Loan Documents and other amounts Borrower owes
Bank now or later, and including interest
-3-
accruing after Insolvency Proceedings begin and debts, liabilities, or
obligations of Borrower assigned to Bank.
"Payment Date" means the first (1/st/) calendar day of each month
commencing with the first such date after the date of this Exim Agreement
and ending on the Exim Maturity Date.
"Responsible Officer" means each of the Chief Executive Officer,
Chief Financial Officer and Controller of the Borrower.
2. LOAN AND TERMS OF PAYMENT
-------------------------
2.1.1 Revolving Advances. Subject to the terms and conditions of this Exim
------------------
Agreement, Bank agrees to make Advances to Borrower in an amount not to exceed
(i) the Exim Committed Line or the Borrowing Base, whichever is less, minus (ii)
the aggregate outstanding Advances hereunder, as determined by the Borrowing
Base Certificate to be delivered to the Bank. Notwithstanding the foregoing, the
aggregate of (i) the Obligations hereunder, and (ii) all Obligations under the
Domestic Agreement, and all other indebtedness owed by Borrower to Bank, shall
not exceed the amount of Twelve Million Five Hundred Thousand Dollars
($12,500,000.00).
To evidence the Advances, Borrower shall execute and deliver to Bank on the
date hereof a promissory note (the "Note") in substantially the form attached
hereto as Exhibit B.
---------
Whenever Borrower desires an Advance, Borrower will notify Bank by
facsimile transmission or telephone no later than 3:00 pm. Eastern time, on the
Business Day that the Advance is to be made. Each such notification shall be
promptly confirmed by a Payment/Advance Form in substantially the form of
Exhibit C hereto together with any additional documentation required under the
---------
Borrower Agreement, including without limitation, as set forth in Section 2.03
of the Borrower Agreement. In addition to the procedure set forth in the
preceding sentence, Bank is authorized to make Advances under this Exim
Agreement, based upon instructions received from a Responsible Officer or
without instructions if in Bank's discretion such Advances are necessary to meet
Obligations which have become due and remain unpaid. Bank shall be entitled to
rely on any telephonic notice given by a person who Bank reasonably believes to
be a Responsible Officer or a designee (as designated in writing by a
Responsible Officer) thereof, and Borrower shall indemnify and hold Bank
harmless for any damages or loss suffered by Bank as a result of such reliance.
Bank will credit the amount of Advances made under this Section 2.1.1 to
Borrower's deposit account. Amounts borrowed pursuant to this Section 2.1.1 may
be repaid at any time and re-borrowed at any time during the term of this Exim
Agreement so long as no Event of Default has occurred and is continuing.
2.2 Overadvances. If, at any time or for any reason, the following occurs
------------
(an "Overadvance"): (i) the amount of Obligations pursuant to this Exim
Agreement owed by Borrower to Bank pursuant to Section 2.1 of this Exim
Agreement is greater than: (a) the lesser of the Borrowing Base or the Exim
Committed Line, minus (b) all outstanding Advances, or (ii) the Obligations
----- --
hereunder, under the Domestic Agreement and any other indebtedness owed to the
Bank shall, in the aggregate, exceed the amount of Twelve Million Five Hundred
Thousand Dollars ($12,500,000.00), Borrower shall immediately pay to Bank, in
cash, the amount of such excess. In addition, if at any time or for any reason,
the aggregate amount of Advances made as a result of Eligible Export-Related
Inventory (as determined by the Borrowing Base Certificate) exceeds the maximum
allowable under Section 2.07(c) of the Borrower Agreement, the Borrower shall
within five (5) calendar days either (i) furnish additional collateral
satisfactory to the Bank which shall not consist of inventory (as such term is
defined in the UCC), or (ii) pay to Bank, in cash, the amount of such excess
2.3 Interest Rates, Payments, and Calculations.
------------------------------------------
-4-
(a) Interest Rate. Except as set forth in Section 2.3(b), or as
-------------
specified to the contrary in any Loan Document, any Advances under this Exim
Agreement shall bear interest, on the average daily balance, at a rate equal to
the Prime Rate per annum.
(b) Default Rate. All Obligations shall bear interest, from and after
------------
the occurrence of an Event of Default, at a rate equal to the lesser of (i) five
(5%) percentage points above the rate that applied immediately prior to the
occurrence of the Event of Default, and (ii) the maximum interest rate allowed
by applicable law.
(c) Payments. Interest hereunder shall be due and payable on each
--------
Payment Date. Bank shall, at its option, charge such interest, all Exim Bank
Expenses, and all Periodic Payments against Borrower's deposit account or
against the Exim Committed Line, in which case those amounts shall thereafter
accrue interest at the rate then applicable hereunder. Unless sooner demanded,
all Advances made hereunder shall be due and payable in full on the Exim
Maturity Date.
(d) Computation. In the event the Prime Rate is changed from time
------------
to time hereafter, the applicable rate of interest hereunder shall be increased
or decreased contemporaneously with such change by an amount equal to such
change in the Prime Rate. All interest chargeable under the Exim Loan Documents
shall be computed on the basis of a three hundred sixty (360) day year for the
actual number of days elapsed.
2.4 Crediting Payments. The receipt by Bank of any wire transfer of funds,
------------------
check, or other item of payment shall be immediately applied to conditionally
reduce Obligations, but shall not be considered a payment on account unless such
wire transfer is of immediately available federal funds and is made to the
appropriate deposit account of Bank or unless and until such check or other item
of payment is honored when presented for payment. Notwithstanding anything to
the contrary contained herein, any payment (other than a wire transfer of
immediately available funds) received by Bank after 12:00 p.m. (noon) Eastern
time shall be deemed to have been received by Bank as of the opening of business
on the immediately following Business Day.
2.5 Fees. Borrower shall pay to Bank the following fees:
----
(a) Financial Examination and Appraisal Fees. Bank's customary fees
----------------------------------------
and out-of-pocket expenses for Bank's audits of Borrower's Accounts and for
each appraisal of the Collateral and financial analysis and examination of
Borrower performed from time to time by Bank or its agents;
(b) Exim Fee. A facility fee equal to Thirty Thousand Dollars
--------
($30,000.00), which fee shall be due and fully earned upon the Closing
Date; and
(c) Exim Bank Expenses. On the Closing Date, Exim Bank Expenses
------------------
incurred through the Closing Date and, after the Closing Date, all Exim
Bank Expenses as they become due, if any.
2.6 Additional Costs. In case any law, regulation, treaty or official
----------------
directive or the interpretation or application thereof by any court or any
governmental authority charged with the administration thereof or the compliance
with any guideline or request of any central bank or other governmental
authority (whether or not having the force of law):
(a) subjects Bank to any tax with respect to payments of principal or
interest or any other amounts payable hereunder by Borrower or otherwise
with respect to the transactions contemplated hereby (except for taxes on
the overall net income of Bank imposed by the United States of America or
any political subdivision thereof):
(b) imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans by, Bank; or
-5-
(c) imposes upon Bank any other condition with respect to its
performance under this Agreement,
and the result of any of the foregoing is to increase the cost to Bank, reduce
the income receivable by Bank or impose any expense upon Bank with respect to
any loans, Bank shall promptly notify Borrower thereof. Borrower agrees to pay
to Bank the amount of such increase in cost, reduction in income or additional
expense as and when such cost, reduction or expense is incurred or determined,
upon presentation by Bank of a statement of the amount and setting forth Bank's
calculation thereof, all in reasonable detail which statement shall be deemed
true and correct absent manifest error.
2.7 Term. This Exim Agreement shall become effective once duly executed
----
and authorized by Borrower and Bank and shall continue in full force and effect
for a term ending on the Exim Maturity Date, on which date all Obligations shall
become immediately due and payable. Notwithstanding the foregoing, Bank shall
have the right to terminate this Exim Agreement immediately and without notice
upon the occurrence of an Event of Default. Notwithstanding any termination of
this Exim Agreement, all of Bank's security interest in all of the Collateral
and all of the terms and provisions of this Exim Agreement shall continue in
full force and effect until all Obligations have been paid and performed in
full, and no termination shall impair any right or remedy of Bank, nor shall any
such termination relieve Borrower of any Obligation to Bank until all of the
Obligations have been paid and performed in full.
2.8 Use of Proceeds. Borrower will use the proceeds of Advances only for
---------------
the purposes specified in the Borrower Agreement. Borrower shall not use the
proceeds of the Advances for any purpose prohibited by the Borrower Agreement.
3. CONDITIONS OF LOANS
-------------------
3.1 Conditions Precedent to all Advances. The obligation of Bank to make
------------------------------------
each Advance, including the initial Advance, is subject to the following
conditions:
(a) timely receipt by Bank of the Payment/Advance Form as provided in
Section 2.1;
(b) timely receipt by Bank of a Borrowing Base Certificate as defined
in the Borrower Agreement;
(c) the Exim Guarantee shall be in full force and effect;
(d) receipt by the Bank of a valid purchase order and such other
documentation as the Bank may require with respect to any Advance based
upon Inventory;
(e) if required by the Bank in its reasonable discretion, a
satisfactory appraisal of Inventory with respect to any Advances to be made
based in whole or in part upon the value of the Inventory; and
(f) except as otherwise disclosed to the Bank, the representations
and warranties contained in Section 5 hereof shall be true and accurate in
all material respects on and as of the date of such Payment/Advance Form
and on the effective date of each Advance as though made at and as of each
such date (except to the extent they relate specifically to an earlier
date, in which case such representations and warranties shall continue to
have been true and accurate as of such date), and no potential Event of
Default or Event of Default shall have occurred and be continuing, or would
result from such Advance.
The making of each Advance shall be deemed to be a representation and
warranty by Borrower on the date of such Advance as to the accuracy of the
facts referred to in this Section 3.1.
-6-
4. CREATION OF SECURITY INTEREST
-----------------------------
4.1 Grant of Security Interest. Borrower grants and pledges to Bank a
--------------------------
continuing security interest in all presently existing and hereafter acquired
or arising Collateral in order to secure prompt payment of any and all
Obligations (which Obligations shall include, without limitation, all
obligations of the Borrower to the Bank under the Domestic Loan Documents) and
in order to secure prompt performance by Borrower of each of its covenants and
duties under the Exim Loan Documents and Domestic Loan Documents. Except as set
forth in the Schedule, such security interest constitutes a valid, first
priority security interest in the presently existing Collateral, and will
constitute a valid, first priority security interest in Collateral acquired
after the date hereof. Borrower acknowledges that Bank may place a "hold" on any
Deposit Account pledged as Collateral to secure the Obligations. Notwithstanding
termination of this Agreement Banks Lien on the Collateral shall remain in
effect for so long as any Obligations are outstanding. Upon termination of this
Agreement and satisfaction in full of the Obligations, Bank shall execute all
documents and take all actions reasonably requested by Borrower in evidence
thereof. Notwithstanding the foregoing, it is expressly acknowledged and agreed
that the security interest created in this Exim Agreement in all of the
Collateral (with the exception of both Exim Eligible Foreign Accounts and
Eligible Export-Related Inventory but only to the extent any Advances are
actually made by the Bank to the Borrower based upon such Exim Eligible Foreign
Accounts and Eligible Export-Related Inventory), is subject to and subordinate
to the security interest granted to the Bank in the Domestic Agreement and the
Permitted Liens (as defined in the Domestic Agreement or the Borrower Agreement)
with respect to the Collateral.
4.2 Delivery of Additional Documentation Required. Borrower shall from
---------------------------------------------
time to time execute and deliver to Bank, at the request of Bank, all financing
statements and other documents that Bank may reasonably request, in form
satisfactory to Bank, to perfect and continue perfected Bank's security
interests in the Collateral and in order to fully consummate all of the
transactions contemplated under the Exim Loan Documents.
4.3 Power of Attorney. Effective only upon the occurrence and during the
----------------
continuance of an Event of Default Borrower hereby irrevocably appoints Bank
(and any of Bank's designated officers or employees) as Borrower's true and
lawful attorney, with power to: (a) send requests for verification of Accounts;
(b) endorse Borrower's name on any checks or other forms of payment or security
that may come into Bank's possession; (c) sign the name of Borrower on any of
the documents described in Section 4.2 (regardless of whether an Event of
Default has occurred); (d) sign Borrower's name on any invoice or xxxx of lading
relating to any Account, drafts against account debtors, schedules and
assignments of Accounts, verifications of Accounts, and notices to account
debtors; (e) make, settle, and adjust all claims under and decisions with
respect to Borrower's policies of insurance; and (f) settle and adjust disputes
and claims respecting the accounts directly with account debtors, for amounts
and upon terms which Bank determines to be reasonable. The appointment of Bank
as Borrower's attorney-in-fact, and each of Bank's rights and powers, being
coupled with an interest, is irrevocable until all of the Obligations have been
fully repaid and Bank's obligation to provide Advances hereunder is terminated.
4.4 Right to Inspect. Each of Bank and Exim Bank (through any of their
----------------
respective officers, employees, or agents) shall have the right, upon reasonable
prior notice, from time to time during Borrower's usual business hours, without
causing any disruptions of Borrower's operations (prior to an Event of Default)
to inspect Borrower's Books, facilities and activities, and to check, test, and
appraise the Collateral in order to verify Borrower's financial condition or the
amount, condition of, or any other matter relating to, the Collateral. Bank
shall conduct annual accounts receivable audits, the results of which audits
shall be satisfactory to Bank. Borrower will cause its officers and employees to
give their full cooperation and assistance in connection therewith.
5. REPRESENTATIONS AND WARRANTIES
------------------------------
Borrower represents, warrants and covenants as follows:
5.1 Domestic Loan Documents. The representations and warranties contained
-----------------------
in the Domestic Loan Documents, which are incorporated by reference into this
Exim Agreement, are true and correct as of the date hereof, except as set
forth on Exhibit D attached hereto.
---------
-7-
6. AFFIRMATIVE COVENANTS
---------------------
Borrower covenants and agrees that, until payment in full of the
Obligations, each Borrower shall do all of the following:
6.1 Domestic Loan Documents. Borrower shall comply in all respects with
-----------------------
the terms and provisions of the Domestic Loan Documents, which terms and
provisions are incorporated into this Exim Agreement and which shall include,
without limitation, compliance with the financial reporting requirements and the
financial covenants set forth in Article 6 of the Domestic Agreement. Ln
addition, the Borrower shall deliver to the Bank within twenty (20) days of the
end of each month (i) a Borrowing Base Certificate, (ii) a schedule of Inventory
for the preceding month, and (ii) an aged listing of accounts receivable, which
shall include all Accounts whether domestic or foreign.
6.2 Terms of Sale. Borrower shall cause all sales of products upon which
-------------
Advances are based to be on open account to creditworthy buyers that have been
preapproved in writing by Bank and Exim Bank.
6.3 Borrower Agreement. Borrower shall comply with all of the terms of
------------------
the Borrower Agreement, including without limitation, the delivery of any and
all notices required pursuant to Sections 2.11 and/or 2.18 of the Borrower
Agreement. In the event of any conflict or inconsistency between any provision
contained in the Borrower Agreement with any provision contained in this Exim
Agreement, the more strict provision with respect to the Borrower, as determined
by the Bank shall control.
6.4 Notice in Event of Filing of Action for Debtor's Relief. Borrower
-------------------------------------------------------
shall notify Bank in writing within five (5) days of the occurrence of any of
the following: (1) Borrower begins or consents in any manner to any proceeding
or arrangement for its liquidation in whole or in part or to any other
proceeding or arrangement whereby any of its assets are subject generally to the
payment of its liabilities or whereby any receiver, trustee, liquidator or the
like is appointed for it or any substantial part of its assets (including
without limitation the filing by Borrower of a petition for appointment as
debtor-in-possession under Title 11 of the U.S. Code); (2) Borrower fails to
obtain the dismissal or stay on appeal within thirty (30) calendar days of the
commencement of any proceeding arrangement referred to in (1) above; (3)
Borrower begins any other procedure for the relief of financially distressed or
insolvent debtors, or such procedure has been commenced against it, whether
voluntarily or involuntarily, and such procedure has not been effectively
terminated, dismissed or stayed within thirty (30) calendar days after the
commencement thereof, or (4) Borrower begins any procedure for its dissolution,
or a procedure therefor has been commenced against it.
6.5 Payment in Dollars. Borrower shall require payment in United States
------------------
Dollars for the products, unless the Exim Bank otherwise agrees in writing
hereafter.
6.6 Inventory Audits. Bank shall have the right to conduct audits of the
----------------
Borrower's Inventory at Borrower's expense.
6.7 Audits. Bank shall have the right from time to time hereafter to
------
audit Borrower's Accounts at Borrower's expense, provided that such audits will
be conducted no more often than every six (6) months unless an Event of Default
has occurred and is continuing.
6.8 Further Assurances. At any time and from time to time Borrower shall
------------------
(i) execute and deliver such further instruments, (ii) take such further action
as may reasonably be requested by Bank, and (iii) deliver such additional
information, reports, contracts, invoices and other data concerning the
Collateral as may reasonably be requested by Bank, all of the foregoing in
furtherance of the purposes of this Exim Agreement.
7. NEGATIVE COVENANTS
------------------
Borrower covenants and agrees that, so long as any Advance hereunder shall
be available and until payment in full of the outstanding Obligations or for so
long as Bank may have any commitment to make any Advances, Borrower will not do
any of the following:
-8-
7.1 Domestic Loan Documents. Violate or otherwise fail to comply with any
-----------------------
provisions of the Domestic Loan Documents, which provisions are incorporated
into this Exim Agreement.
7.2 Loans to Shareholders or Affiliates. Without Exim Bank's prior
-----------------------------------
written consent, make any loans to any shareholder or entity affiliated with
Borrower. As used in this Section 7.2, the term "loan" does not include salary,
reasonable rent paid to an affiliated entity owned by the shareholders, or to
other expenses incurred in the ordinary course of Borrower's business.
7.3 Borrower Agreement. Violate or otherwise fail to comply with any
------------------
provision of the Borrower Agreement, including without limitation the negative
covenants set forth in Section 2.15.
7.4 Exim Guarantee. Take any action, or permit any action to be taken,
--------------
that causes or, with the passage of time, could reasonably be expected to cause,
the Exim Guarantee to cease to be in full force and effect.
8. EVENTS OF DEFAULT
-----------------
Any one or more of the following events shall constitute an Event of
Default by Borrower under this Exim Agreement:
8.1 Payment Default. If Borrower fails to pay, when due, any of the
---------------
Obligations.
8.2 Covenant Default; Cross Default. If Borrower fails or neglects to
-------------------------------
perform, keep, or observe any material term, provision, condition, covenant, or
agreement contained in this Exim Agreement, in any of the Domestic Loan
Documents, the Borrower Agreement, or the Exim Loan Documents, or an Event of
Default occurs under any of the Domestic Loan Documents or the Borrower
Agreement and as to any default under such other term, provision, condition,
covenant or agreement that can be cured, has failed to cure such default within
twenty (20) days after the occurrence thereof; provided, however, that if the
default cannot by its nature be cured within the twenty (20) day period or
cannot after diligent attempts by Borrower be cured within such twenty (20) day
period, and such default is likely to be cured within a reasonable time, then
Borrower shall have an additional reasonable period (which shall not in any case
exceed thirty (30) days) to attempt to cure such default, and within such
reasonable time period the failure to have cured such default shall not be
deemed an Event of Default (provided that no Advances will be required to be
made during such cure period); or
8.3 Exim Guarantee. If the Exim Guarantee ceases for any reason to be in
--------------
full force and effect, or if the Exim Bank declares the Exim Guarantee void or
revokes or purports to revoke any obligations under the Exim Guarantee.
9. BANK'S RIGHTS AND REMEDIES
--------------------------
9.1 Rights and Remedies. Upon the occurrence and during the continuance of
-------------------
an Event of Default, Bank may, at its election, without notice of its election
and without demand, do any one or more of the following, in accordance with
applicable law, all of which are authorized by the Borrower:
(a) Declare all Obligations, whether evidenced by this Exim
Agreement, the Domestic Loan Documents, or by any of the other Exim
Loan Documents, or otherwise, immediately due and payable (provided that
upon the occurrence of an Event of Default described in Section 8.5 of the
Domestic Agreement, all Obligations shall become immediately due and
payable without any action by Bank);
(b) Cease advancing money or extending credit to or for the benefit
of Borrower under this Exim Agreement or under any other agreement between
Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, upon terms and in whatever order that Bank reasonably
considers advisable;
(d) Notify customers of Borrower or other third parties to pay
amounts owing to Borrower directly to the Bank;
-9-
(e) Without notice to or demand upon Borrower, make such payments and
do such acts as Bank considers necessary or reasonable to protect its
security interest in the Collateral. Borrower agrees to assemble the
Collateral if Bank so requires, and to make the Collateral available to
Bank as Bank may designate. Borrower authorizes Bank to enter the premises
where the Collateral is located, to take and maintain possession of the
Collateral, or any part of it, and to pay, purchase, contest, or compromise
any encumbrance, charge, or lien which in Bank's determination appears to
be prior or superior to its security interest and to pay all expenses
incurred in connection therewith. With respect to any of Borrower's
premises, Borrower hereby grants Bank a license to enter such premises and
to occupy the same, without charge, in order to exercise any of Bank's
rights or remedies provided herein, at law, in equity, or otherwise;
(f) With notice to the Borrower, set off and apply to the Obligations
any and all (i) balances and deposits of Borrower held by Bank, or (ii)
indebtedness at any time owing to or for the credit or the account of
Borrower held by Bank;
(g) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell (in the manner provided far herein)
the Collateral. Bank is hereby granted a non-exclusive, royalty-free
license or other right, solely pursuant to the provisions of this Section
9.1, to use, without charge, Borrower's labels, patents, copyrights, mask
works, rights of use of any name, trade secrets, trade names, trademarks,
service marks, and advertising matter, or any property of a similar nature,
as it pertains to the Collateral, in completing production of, advertising
for sale, and selling any Collateral and, to the extent required for Bank's
exercise of its rights under this Section 9.1, Borrower's rights under all
licenses and all franchise agreements shall inure to Bank's benefit;
(h) Sell the Collateral in a commercially reasonable manner at either
a public or private sale, or both, by way of one or more contracts or
transactions, for cash or on terms, in such manner and at such places
(including Borrower's premises) as Bank determines is commercially
reasonable, and apply the proceeds thereof to the Obligations in whatever
manner or order it deems appropriate; and
(i) Bank may credit bid and purchase at any public sale, or at any
private sale permitted by law.
Any deficiency that exists after disposition of the Collateral as provided
above will be paid immediately by Borrower.
9.2 Exim Direction. Upon the occurrence of an Event of Default, Exim Bank
--------------
shall have a right to: (i) direct Bank to exercise the remedies specified in
Section 9.1 and (ii) request that Bank accelerate the maturity of any other
loans to Borrower as to which Bank has a right to accelerate.
9.3 Exim Notification. Bank shall have the right to immediately notify
-----------------
Exim Bank in writing if it has knowledge of the occurrence of any of the
following events: (1) any failure to pay any amount due under this Exim
Agreement or the Note; (2) the Borrowing Base is less than the sum of
outstanding Advances hereunder; (3) any failure to pay when due any amount
payable to Bank by the Borrower under any loan(s) extended by Bank to Borrower;
(4) the filing of an action for debtor's relief by, against, or on behalf of
Borrower; or (5) any threatened or pending material litigation against Borrower,
or any material dispute involving Borrower.
In the event that it sends such a notification to Exim Bank, Bank shall
have the right to thereafter send Exim Bank a written report on the status of
the events covered by said notification on each Business Day which occurs every
thirty (30) calendar days after the date of said notification, until such time
as Bank files a claim with Exim Bank or said default or other events have been
cured. Bank shall not have any obligation to make any Advances following said
notification to Exim Bank, unless Exim Bank gives its written approval thereto.
If directed to do so by Exim Bank, Bank shall have a right promptly to exercise
any rights it may have against borrower to demand the immediate repayment of all
amounts outstanding under the Exim Loan Documents.
-10-
9.4 Remedies Cumulative. Bank's rights and remedies under this Exim
-------------------
Agreement, the Exim Loan Documents, the Domestic Loan Documents and all other
agreements shall be cumulative. Bank shall have all other rights and remedies
not inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by Bank of one right or remedy shall be deemed an election, and no
waiver by Bank of any Event of Default on Borrower's part shall be deemed a
continuing waiver. No delay by Bank shall constitute a waiver, election, or
acquiescence by it. No waiver by Bank shall be effective unless made in a
written document signed on behalf of Bank and then shall be effective only in
the specific instance and for the specific purpose for which it was given.
9.5 Power of Attorney. Effective only upon the occurrence and during the
-----------------
continuance of an Event of Default, Borrower hereby irrevocably appoints Bank
(and any of Bank's designated officers, or employees) as Borrower's true and
lawful attorney to: (a) send requests for verification of Accounts or notify
account debtors of Bank's security interest in the Accounts; (b) endorse
Borrower's name on any checks or other forms of payment or security that may
come into Bank's possession; (c) sign Borrower's name on any invoice or xxxx of
lading relating to any Account, drafts against account debtors, schedules and
assignments of Accounts, verifications of Accounts, and notices to account
debtors; (d) make, settle, and adjust all claims under and decisions with
respect to Borrower's policies of insurance; and (e) settle and adjust disputes
and claims respecting the accounts directly with account debtors, for amounts
and upon terms which Bank determines to be reasonable; and (f) to file, in its
sole discretion, one or more financing or continuation statements and amendments
thereto, relative to any of the Collateral without the signature of Borrower
where permitted by law provided Bank may exercise such power of attorney to sign
the name of Borrower on any of the documents described in Section 4.2 regardless
of whether an Event of Default has occurred. The appointment of Bank as
Borrower's attorney in fact, and each and every one of Bank's rights and powers,
being coupled with an interest, is irrevocable until all of the Obligations have
been fully repaid and performed and Bank's obligation to provide advances
hereunder is terminated.
9.6 Accounts Collection. Upon the occurrence and during the continuance of
-------------------
an Event of Default, Bank may notify any Person owing funds to Borrower of
Bank's security interest in such funds and verify the amount of such Account.
Borrower shall collect all amounts owing to Borrower for Bank, receive in trust
all payments as Bank's trustee, and if requested or required by Bank,
immediately deliver such payments to Bank in their original form as received
from the account debtor, with proper endorsements for deposit.
9.7 Bank Expenses. If Borrower fails to pay any amounts or furnish any
-------------
required proof of payment due to third persons or entities, as required under
the terms of this Agreement, then Bank may do any or all of the following: (a)
make payment of the same or any part thereof; (b) set up such reserves under the
Committed Revolving Line as Bank deems necessary to protect Bank from the
exposure created by such failure; or (c) obtain and maintain insurance policies
of the type discussed in Section 6.5 of the Domestic Agreement, and take any
action with respect to such policies as Bank deems prudent. Any amounts so paid
or deposited by Bank shall constitute Bank Expenses, shall be immediately due
and payable and shall bear interest at the then applicable rate hereinabove
provided, and shall be secured by the Collateral. Any payments made by Bank
shall not constitute an agreement by Bank to make similar payments in the future
or a waiver by Bank of any Event of Default under this Agreement.
9.8 Bank's Liability for Collateral. So long as Bank complies with
-------------------------------
reasonable banking practices and applicable law, Bank shall not in any way or
manner be liable or responsible for: (a) the safekeeping of the Collateral; (b)
any loss or damage thereto occurring or arising in any manner or fashion from
any cause: (c) any diminution in the value thereof; or (d) any act or default of
any carrier, warehouseman, bailee, forwarding agency, or other person
whomsoever. All risk of loss, damage or destruction of the Collateral shall be
borne by Borrower.
9.9 Demand: Protest. Borrower waives demand, protest, notice of protest,
---------------
notice of default or dishonor, notice of payment and nonpayment, notice of any
default, nonpayment at maturity, release, compromise, settlement, extension or
renewal of accounts, documents, instruments, chattel paper, and guarantees at
any time held by Bank on which Borrower may in any way be liable.
10. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
------------------------------------------
The laws of the Commonwealth of Massachusetts shall apply to this
Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERITIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
OF COMPETENT JURISDICTION IN
-00-
XXX XXXXXXXXXXXX XX XXXXXXXXXXXXX IN ANY ACTION, SUIT, OR PROCEEDING OF ANY
KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS AGREEMENT; PROVIDED,
HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION OF THE COURTS AND
VENUE IN SANTA XXXXX COUNTY, CALIFORNIA.
BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE
EXIM LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH
PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11. WAIVERS: INDEMNIFICATION
------------------------
11.1 Indemnification. Borrower shall defend, indemnify and hold harmless
---------------
Bank and its officers, employees, and agents against: (a) all obligations,
demands, claims, and liabilities claimed or asserted by any other party in
connection with the transactions contemplated by this Exim Agreement, and (b)
all losses or Exim Bank. Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Borrower whether under this Exim Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12. NOTICES
-------
Unless otherwise provided in this Exim Agreement, all notices or demands by
any party relating to this Exim Agreement at any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by a recognized overnight
delivery service, by certified mail, postage prepaid, return receipt requested,
or by telefacsimile to Borrower or to Bank, as the case may be, at the address
set forth in the Domestic Loan Documents. The parties hereto may change the
address at which they are to receive notices hereunder, by notice in writing in
the foregoing manner given to the other.
13. GENERAL PROVISIONS
------------------
13.1 Succesors and Assigns. This Exim Agreement shall bind and inure to the
---------------------
benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Exim Agreement nor any rights
hereunder may be assigned by Borrower without Bank's prior written consent,
which consent may be granted or withheld in Bank's sole discretion. Bank shall
have the right without the consent of or notice to Borrower to sell, transfer,
negotiate, or grant participations in all or any part of, or any interest in
Bank's obligations, rights and benefits hereuder.
13.2 Time of Essence. Time is of the essence for the performance of all
---------------
obligations set forth in this Exim Agreement.
13.3 Severability of Provisions. Each provision of this Exim Agreement
--------------------------
shall be severable from every other provision of this Exim Agreement for the
purpose of determining the legal enforceability of any specific provision.
13.4 Amendments in Writing. This Exim Agreement cannot be changed or
---------------------
terminated orally. Without the prior written consent of Exim Bank, no material
amendment of or deviation from the terms of this Exim Agreement or the Note
shall be made that would adversely affect the interests of Exim Bank under the
Exim Guarantee, including without limitation the rescheduling of any payment
terms provided for in this Exim
-12-
Agreement. All prior agreements, understandings, representations, warranties,
and negotiations between the parties hereto with respect to the subject matter
of this Exim Agreement, if any, are merged into this Exim Agreement.
13.5 Counterparts. This Exim Agreement may be executed in any number of
------------
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Exim
Agreement.
13.6 Survival. All covenants, representations and warranties made in this
--------
Exim Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Borrower to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in Section 11.1 shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run.
13.7 Countersignature. This Agreement shall become effective only when it
----------------
shall have been executed by Borrower and Bank (provided, however, in no event
shall this Agreement become effective until signed by an officer of Bank in
California).
13.8 Confidentiality. In handling any confidential information Bank shall
---------------
exercise the same degree of care that it exercises with respect to its own
proprietary information of the same types to maintain the confidentiality of any
non-public information thereby received or received pursuant to this Agreement
except that disclosure of such information may be made (i) to the subsidiaries
or affiliates of Bank in connection with their present or prospective business
relations with Borrower, (ii) to prospective transferees or purchasers of any
interest in the Loans, provided that they have entered into a comparable
confidentiality agreement in favor of Borrower and have delivered a copy to
Borrower, (iii) as required by law, regulations, rule or order, subpoena,
judicial order or similar order, (iv) as may be required in connection with the
examination, audit or similar investigation of Bank, and (v) as Bank may deem
appropriate in connection with the exercise of any remedies hereunder.
Confidential information hereunder shall not include information that either:
(a) is in the public domain or in the knowledge or possession of Bank when
disclosed to Bank, or becomes part of the public domain after disclosure to Bank
through no fault of Bank; or (b) is disclosed to Bank by a third party, provided
Bank does not have actual knowledge that such third party is prohibited from
disclosing such information.
IN WITNESS WHEREOF, the parties hereto have caused this Exim Agreement to
be executed as of the date first above written.
SEACHANGE INTERNATIONAL, INC.
By: /s/ XX Xxxxxxx
----------------------------------
Name: XX XXXXXXX
--------------------------------
Title: VICE PRESIDENT
-------------------------------
SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By:_________________________________
Name:_______________________________
Title:______________________________
-00-
XXXXXXX XXXXXX XXXX
By:__________________________________________
Name:________________________________________
Title:_______________________________________
(Signed in Santa Clan County, California)
-14-
