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EXHIBIT 10.8
SENIOR LOAN AND SECURITY AGREEMENT NO. 6262
THIS SENIOR LOAN AND SECURITY AGREEMENT NO. 6262 (this "Security Agreement") is
dated as of August 20, 1999 between VISION SOFTWARE TOOLS, INC., a California
corporation ("Borrower") and PHOENIX LEASING INCORPORATED, a California
corporation ("Lender").
RECITALS
A. Borrower desires to borrow from Lender in one or more borrowings the
Commitment amount as defined in Section 3(a)(ii) below, and Lender desires to
loan, subject to the terms and conditions herein set forth, such amount to
Borrower (each, a "Loan" and collectively, the "Loans"). Such borrowings shall
be evidenced by one or more Senior Secured Promissory Notes (each, a "Note" and
collectively, the "Notes"), in the form attached hereto.
B. As security for Borrower's obligations to Lender under this Security
Agreement, the Notes and any other agreement between Borrower and Lender,
Borrower will grant to Lender hereunder a first priority security interest in
certain of its equipment, machinery, fixtures, other items and intangibles and
also certain custom use equipment, installation and delivery costs, purchase
tax, toolings, software and other items generally considered fungible or
expendable ("Soft Costs") whether now owned by Borrower or hereafter acquired,
and all substitutions and replacements of and additions, improvements,
accessions and accumulations to said equipment, machinery and fixtures and other
items, together with all rents, issues, income, profits and proceeds therefrom,
in each case, which is described on the Note attached hereto or any
subsequently-executed Note entered into by Lender and Borrower and which
incorporates this Security Agreement by reference (collectively, the
"Collateral").
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. TERM OF AGREEMENT. The term of this Security Agreement begins on the
date set forth above and shall continue thereafter and be in effect so long as
and at any time any Note entered into pursuant to this Security Agreement is in
effect. The Term and monthly payment amount payable with respect to each item of
Collateral shall be as set forth in and as stated in the respective Note(s). The
terms of each Note hereto are subject to all conditions and provisions of this
Security Agreement as it may at any time be amended. Each Note shall constitute
a separate and independent Loan and contractual obligation of Borrower and shall
incorporate the terms and conditions of this Security Agreement and any
additional provisions contained in such Note. In the event of a conflict between
the terms and conditions of this Security Agreement and any provisions of such
Note, the provisions of such Note shall prevail with respect to such Note only.
SECTION 2. NON-CANCELABLE LOAN. This Security Agreement and each Note cannot be
canceled or terminated except as expressly provided herein. Borrower agrees that
its obligations to pay all monthly payment amounts and other sums payable
hereunder (and under any Note) and the rights of Lender and any assignee in and
to such monthly payment amounts and other sums, are absolute and unconditional
and are not subject to any abatement, reduction, setoff, defense, counterclaim
or recoupment due or alleged to be due to, or by reason of, any past, present or
future claims which Borrower may have against Lender, any assignee, the
manufacturer or seller of the Collateral, or against any person for any reason
whatsoever.
SECTION 3. LENDER COMMITMENT. (a) General Terms. Subject to the terms and
conditions of this Security Agreement, Lender hereby agrees to make one or more
senior secured Loans to Borrower, subject to the following conditions: (i) each
Loan shall be evidenced by a Note; (ii) the total principal amount of the Loans
shall not exceed $1,000,000 in the aggregate (the "Commitment") provided that no
more than 20% of
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the amount of the utilized Commitment may be used to finance Soft Costs; (iii)
the amount of each Loan shall be at least $25,000 except for a final Loan which
may be less than $25,000; (iv) Lender shall not be obligated to make any Loan
after March 31, 2000 provided that the funding period may be extended to April
30, 2000 if Lender has received and approved in its sole discretion Borrower's
new monthly business plan (all quarterly figures will be prorated monthly); (v)
at the time of each Loan, no Event of Default or event which with the giving of
notice or passage of time, or both, would become an Event of Default shall have
occurred, as reasonably determined by Lender, and certified by Borrower; (vi) at
the time of each Loan, Borrower has reimbursed Lender for all UCC filing and
search costs, inspection and labeling costs, and appraisal fees, if any; (vii)
for each Loan, Borrower shall present to Lender a list of proposed Collateral
for approval by Lender in its sole discretion; (viii) for each Loan, Borrower
shall have provided Lender with each of the closing documents described in
Exhibit A hereto (which documents shall be in form and substance reasonably
acceptable to Lender); (ix) Borrower is performing substantially in accordance
with its business plan referred to as "Vision Software Tools, Inc. Revised 1999
Operating Plan, 1998 (actual) and 1999 (planned) Statement of Operations
($ thousands)" dated 5/4/99 3:02PM and "1999 Balance Sheets (actual through
February 1999) Revised Plan" dated 4/15/99 6:19PM, only viable through March 31,
2000 (all quarterly figures will be prorated to monthly), as may be supplemented
and amended from time to time in form and substance acceptable to Lender
(collectively, the "Financial Plan"); (x) there shall be no material adverse
change in Borrower's condition, financial or otherwise, that would materially
impair the ability of Borrower to meet its payment and other obligations under
this Loan (a "Material Adverse Effect") as reasonably determined by Lender, and
Borrower so certifies, from (yy) the date of the most recent financial
statements delivered by Borrower to Lender to (zz) the date of the proposed
Loan; (xi) prior to payment in full of all Notes, Borrower shall not after the
date hereof offer any loan secured by any equipment, furniture or fixtures to
any other person or entity other than Lender, unless Lender declines to finance
such transaction or Borrower and Lender are unable to agree on the terms of such
financing; (xii) Borrower shall use the proceeds of all Loans hereunder to
purchase or reimburse the purchase of Collateral; (xiii) all Collateral has been
marked and labeled by Lender or Lender's agent; and (xiv) Lender has received in
form and substance acceptable to Lender: (a) Intercreditor Agreements or UCC
releases; (b) Borrower's interim financial statements signed by a financial
officer of Borrower, (c) prior to the first funding, evidence of Borrower's
$3,431,000 cash position as of April 30, 1999; (d) prior to each funding,
evidence that Borrower's cash balance is at least equal to that shown in the
Financial Plan or $1,000,000, whichever is greater, and (e) complete copies of
the Borrower's audit reports for its most recent fiscal year, which shall
include at least Borrower's balance sheet as of the close of such year, and
Borrower's statement of income and retained earnings and of changes in financial
position for such year, prepared on a consolidated basis and certified by
independent public accountants. Such certificate shall not be qualified or
limited because of restricted or limited examination by such accountant of any
material portion of the company's records. Such reports shall be prepared in
accordance with generally accepted accounting principles and practices
consistently applied.
(b) The Notes. Each Loan shall be evidenced by a Note. Each Note shall
bear interest and be payable at the times and in the manner provided therein.
Following payment of the Indebtedness related to each Note, Lender shall return
such Note, marked "cancelled," to Borrower. Borrower has the ability to prepay
all, but not fewer than all, outstanding Notes in whole but not in part. The
prepayment amount shall be the sum of (i) and (ii) below, discounting the
amounts in (ii) at a rate of 6% per annum compounded monthly on the basis of a
360 day year: (i) all amounts which may be then due or accrued to the payment
date for all outstanding Notes; (ii) as of such payment date, an amount equal
to: (A) all remaining monthly payments due under all outstanding Notes, and (B)
15% of the original principal amount of each outstanding Note calculated in
accordance with Election No. 1 in Section 28. The prepayment conditions are as
follows: (a) Borrower must provide Lender with at least five (5) days advance
written notice of its intention to prepay; and (b) the prepayment date must fall
on a regular monthly payment date.
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SECTION 4. SECURITY INTERESTS. (a) Borrower hereby grants to Lender a first
security interest in all Collateral; (b) This Security Agreement secures (i) the
payment of the principal of and interest on the Notes and all other sums due
thereunder and under this Security Agreement (the "Indebtedness") and (ii) the
performance by Borrower of all of its other covenants now or hereafter existing
under the Notes, this Security Agreement and any other obligation owed by
Borrower to Lender (the "Obligations").
SECTION 5. BORROWER'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Borrower
represents and warrants that (a) it is in good standing under the laws of the
state of its formation, duly qualified to do business and will remain duly
qualified during the term of each Loan in each state where necessary to carry on
its present business and operations, including the jurisdiction(s) where the
Collateral will be located as specified on each Exhibit A to each Note, except
where failure to be so qualified would not have a Material Adverse Effect; (b)
it has full authority to execute and deliver this Security Agreement and the
Notes and perform the terms hereof and thereof, and this Security Agreement and
the Notes have been duly authorized, executed and delivered and constitute valid
and binding obligations of Borrower enforceable in accordance with their terms;
(c) the execution and delivery of this Security Agreement and the Notes will not
contravene any law, regulation or judgment affecting Borrower or result in any
breach of any material agreement or other instrument binding on Borrower; (d) no
consent of Borrower's shareholders or holder of any indebtedness, or filing
with, or approval of, any governmental agency or commission, which has not
already been obtained or performed, as appropriate, is a condition to the
performance of the terms of this Security Agreement or the Notes; (e) there is
no action or proceeding pending or threatened against Borrower before any court
or administrative agency which could reasonably be expected to have a Material
Adverse Effect on the business, financial condition or operations of Borrower;
(f) at the time any Loan is made hereunder, Borrower owns, has good and
marketable title to the Collateral, and will keep all of the Collateral free and
clear of all liens, claims and encumbrances other than Permitted Liens, and,
except for this Security Agreement, there is no deed of trust, mortgage,
security agreement or other third party interest against any of the Collateral
other than Permitted Liens (as defined below); (g) at the time any Loan is made
hereunder, all Collateral related to such Loan has been received, installed and
is ready for use and is satisfactory in all respects for the purposes of this
Security Agreement; (h) the Collateral is, and will remain at all times under
applicable law, removable personal property, which is free and clear of any lien
or encumbrance except in favor of Lender other than Permitted Liens (as defined
below), notwithstanding the manner in which the Collateral may be attached to
any real property; (i) all Credit and financial information submitted by
Borrower to Lender herewith or at any other time is and will at the time given
be true and correct in all material respects; and (j) the security interest
granted to Lender hereunder is a first priority security interest subject only
to Permitted Liens, and (k) on or before January 1, 2000, Borrower's computer
system shall be Year 2000 performance compliant and will thus be able to
accurately process date data from, into and between the twentieth and
twenty-first centuries including leap year calculations. "Permitted Liens" shall
mean and include: (i) liens for taxes or other governmental charges not at the
time delinquent or thereafter payable without penalty or being contested in good
faith; and (ii) liens of carriers, warehousemen, mechanics, materialmen,
vendors, landlords and other liens arising by operation of law incurred in the
ordinary course of business.
SECTION 6. METHOD AND PLACE OF PAYMENT. Borrower shall pay to Lender, at such
address as Lender specifies in writing, all amounts payable to it under this
Security Agreement and the Notes.
SECTION 7. LOCATION; INSPECTION; LABELS. All of the Collateral shall be located
at the address (the "Collateral Location") shown on Exhibit A to each Note and
shall not be moved without Lender's prior written consent which location shall
in all events be within the United States. All of the records regarding the
Collateral shall be located at 0000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX
00000, or such other location of which Borrower has given notice to Lender in
accordance with this Security Agreement. Lender shall have the right to inspect
Collateral, including records relating thereto, and Borrower's books and records
at any time (upon reasonable notification) during regular business hours, such
books and records to be
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maintained in accordance with generally accepted accounting principles. Borrower
shall be responsible for all labor, material and freight charges incurred in
connection with any removal or relocation of Collateral which is requested by
Borrower and consented to by Lender, as well as for any charges due to the
installation or moving of the Collateral. Payments under the Notes and under
this Security Agreement shall continue during any period in which the Collateral
is in transit during a relocation. During Borrower's regular business hours and
upon at least two days' notice to Borrower, Lender or its agent shall xxxx and
label Collateral, which labels (to be provided by Lender) shall state that such
Collateral is subject to a security interest of Lender, and Borrower shall keep
such labels on the Collateral as so labeled.
SECTION 8. COLLATERAL MAINTENANCE. (a) General. Upon reasonable notice, Borrower
will permit Lender to inspect each item of Collateral and its maintenance
records during Borrower's regular business hours. Borrower will at its sole
expense comply with all applicable laws, rules, regulations, requirements and
orders of any applicable governmental authority with respect to the use,
maintenance, repair, condition, storage and operation of each item of
Collateral. Any addition or improvement that is so required or cannot be so
removed will immediately become Collateral of Lender. (b) Service and Repair.
With respect to computer equipment, other than personal computers and related
equipment, Borrower has entered into, and will maintain in effect, vendor's
standard maintenance contract or another contract satisfactory to Lender for a
period equal to the term of each Loan and extensions thereto which provides for
the maintenance of the Collateral in good condition and working order and
repairs and replacement of parts thereof, all in accordance with the terms of
such maintenance contract. With respect to any other Collateral, Borrower will
at its sole expense maintain and service and repair any damage to each item of
Collateral in a manner consistent with prudent industry practice and Borrower's
own practice so that such item of Collateral is at all times (i) in the same
condition as when delivered to Borrower, except for ordinary wear and tear, and
(ii) in good operating order for the function intended by its manufacturer's
warranties and recommendations.
SECTION 9. LOSS OR DAMAGE. Borrower assumes the entire risk of loss to the
Collateral through use, operation or otherwise. Borrower hereby indemnifies and
holds harmless Lender from and against all claims, loss of Loan payments, costs,
damages, and expenses relating to or resulting from any loss, damage or
destruction of the Collateral, any such occurrence being hereinafter called a
"Casualty Occurrence." Notwithstanding any Casualty Occurrence, the Loan to
which such casualtied item of Collateral is subject shall continue in full force
and effect without any abatement in the monthly payment due. Borrower shall, at
its election, (a) no later than thirty (30) days after such Casualty Occurrence
repair the Collateral returning it to good operating condition, (b) no later
than thirty (30) days after such Casualty Occurrence replace the Collateral with
Collateral acceptable to Lender in its reasonable discretion, in good condition
and repair taking all steps required by Lender to perfect Lender's first
priority security interest therein (subject to Permitted Liens), which
replacement Collateral shall be subject to the terms of this Security Agreement,
or (c) on the next regular monthly payment date which falls after such thirty
(30) days, or if there is no such payment date, thirty (30) days after such
Casualty Occurrence pay to Lender an amount equal to the Balance Due (as defined
below) for each lost or damaged item of Collateral. The Balance Due for
each such item is the sum of: (i) all amounts for each item which may be then
due or accrued to the payment date, plus (ii) as of such payment date, an amount
equal to the product of the fraction specified below times the sum of all
remaining payments under the respective Note, including the amount of any
mandatory or optional payment required or permitted to be paid by Borrower to
Lender at the maturity of the Note discounting to present value the amounts in
(ii) at a rate of 6% per annum, compounded monthly on the basis of a 360 day
year "Discount Rate"). The numerator of the fraction shall be the collateral
value (as set forth on the applicable Note) of the item and the denominator
shall be the aggregate collateral value of all items under the Note. Upon the
making of such payments, Lender shall release such item of Collateral from its
lien hereunder.
Subject to Permitted Liens, all insurance proceeds from policies required to be
maintained hereunder received by or payable to Lender on account of a Casualty
Occurrence shall be released to the vendor of the replacement item of Collateral
upon Borrower's request if (i) no Event of Default has occurred and is
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continuing hereunder, and (ii) Lender has received an invoice from the vendor
describing the replacement item of Collateral.
If Lender has received from Borrower the Balance Due and all other payments due
with respect to the item Of Collateral which has suffered a Casualty Occurrence,
all insurance proceeds received by Lender thereafter or payable on account of
the Casualty Occurrence shall be paid to Borrower as it may direct.
SECTION 10. INSURANCE. Borrower at its expense shall keep the Collateral insured
against all risks of physical loss for at least the replacement value of the
Collateral and in no event for less than the amount payable following a Casualty
Occurrence (as provided in Section 9). Such insurance shall provide for a loss
payable endorsement to Lender and/or any assignee of Lender. Borrower shall
maintain commercial general liability insurance, including products liability
and completed operations coverage, with respect to loss or damage for personal
injury, death or property damage in an amount not less than $1,000,000 in the
aggregate, naming Lender and/or Lender's assignee as additional insured. Such
insurance shall contain insurer's agreement to give thirty (30) days' advance
written notice to Lender before cancellation or material change of any policy of
insurance. Borrower will provide Lender and any assignee of Lender with a
certificate of insurance from the insurer evidencing Lender's or such assignee's
interest in the policy of insurance. Such insurance shall cover any Casualty
Occurrence to any unit of Collateral. Notwithstanding anything in Section 9 or
this Section 10 to the contrary, this Security Agreement and Borrower's
obligations hereunder shall remain in full force and effect with respect to any
unit of Collateral which is not subject to a Casualty Occurrence. If Borrower
fails to provide or maintain insurance as required herein, Lender shall have the
right, but shall not be obligated, to obtain such insurance. In that event,
Borrower shall pay to Lender the cost thereof.
SECTION 11. MISCELLANEOUS AFFIRMATIVE COVENANTS. So long as any portion of the
Indebtedness is unpaid and as long as any of the Obligations are outstanding
Borrower will: (a) duly pay all governmental taxes and assessments at the time
they become due and payable; provided, however, Borrower may contest the same in
good faith so long as no payment default by Borrower has occurred and is
continuing; (b) comply with all applicable material governmental laws, rules and
regulations relating to its business and the Collateral where a failure to
comply would have a Material Adverse Effect; (c) take no action to adversely
affect Lender's security interest in the Collateral as a first and prior
perfected security interest subject to Permitted Liens; (d) furnish Lender with
its annual audited financial statements within one hundred twenty (120) days
following the end of Borrower's fiscal year, unaudited quarterly financial
statements within forty-five (45) days after the end of each fiscal quarter, and
within thirty (30) days of the end of each month a financial statement for that
month prepared by Borrower, and including an income statement and balance sheet,
all of which shall be certified by an officer of Borrower as fairly presenting,
in all material respects, the financial position of Borrower for the periods
indicated, and shall be prepared in accordance with generally accepted
accounting principles consistently applied, and such other information as Lender
may reasonably request; and (e) promptly (but in no event more than five (5)
days after the occurrence of such event) notify Lender of any change in
Borrower's condition during the commitment period which constitutes a Material
Adverse Effect, and of the occurrence of any Event of Default.
SECTION 12. INDEMNITIES. Borrower will protect, indemnify and save harmless
Lender and any assignees of Lender from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses
(including reasonable attorneys' fees and expenses), imposed upon or incurred by
or asserted against Lender or any assignee of Lender by Borrower or any third
party by reason of the occurrence or existence (or alleged occurrence or
existence) of any act or event relating to or caused by any portion of the
Collateral, or its purchase, acceptance, possession, use, maintenance or
transportation, including without limitation, consequential or special damages
of any kind, any failure on the part of Borrower to perform or comply with any
of the terms of this Security Agreement or any Note, claims for latent or other
defects, claims for patent, trademark or copyright infringement and claims for
personal injury, death or property
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damage, including those based on Lender's negligence, provided that Borrower
shall not be required to indemnify Lender for any of such liabilities,
obligations, claims, damages, penalties, causes of action, or costs and expenses
resulting from Lender's bad faith, gross negligence or willful misconduct. In
the event that any action, suit or proceeding is brought against Lender by
reason of any such occurrence, Borrower, upon Lender's request, will, at
Borrower's expense, resist and defend such action, suit or proceeding or cause
the same to be resisted and defended by counsel approved by Lender. Borrower's
obligations under this Section 12 shall survive the payment in full of all the
Indebtedness and the performance of all Obligations with respect to acts or
events occurring or alleged to have occurred prior to the payment in full of all
the Indebtedness and the performance of all Obligations.
SECTION 13. TAXES. Borrower agrees to reimburse Lender (or pay directly if
instructed by Lender) and any assignee of Lender for, and to indemnify and hold
Lender and any assignee harmless from, all fees (including, but not limited to,
license, documentation, recording and registration fees), and all sales, use,
gross receipts, personal property, occupational, value added or other taxes,
levies, imposts, duties, assessments, charges, or withholdings of any nature
whatsoever, together with any penalties, fines, additions to tax, or interest
thereon (the foregoing collectively "Impositions"), except same as may be
attributable to Lender's income, arising at any time prior to or during the term
of any Notes or of this Security Agreement, or upon termination or early
termination of this Security Agreement and levied or imposed upon Lender
directly or otherwise by any Federal, state or local government in the United
States or by any foreign country or foreign or international taxing authority
upon or with respect to (a) the Collateral, (b) the exportation, importation,
registration, purchase, ownership, delivery, leasing, financing, possession,
use, operation, storage, maintenance, repair, return, sale, transfer of title,
or other disposition thereof, (c) the rentals, receipts, or earnings arising
from the Collateral, or any disposition of the rights to such rentals, receipts,
or earnings, (d) any payment pursuant to this Security Agreement or the Notes,
or (e) this Security Agreement, the Notes or any transaction or any part hereof
or thereof.
SECTION 14. RELEASE OF LIENS. Upon payment of all of the Indebtedness, Lender
shall release its liens in the Collateral and shall execute UCC termination
statements and such other documents as Borrower shall reasonably request to
evidence the release of Lender's lien relating to the Collateral.
SECTION 15. ASSIGNMENT. WITHOUT LENDER'S PRIOR WRITTEN CONSENT WHICH CONSENT
WILL NOT BE UNREASONABLY WITHHELD OR DELAYED, BORROWER SHALL NOT EXCEPT AS
OTHERWISE PERMITTED UNDER THIS SECURITY AGREEMENT: (a) ASSIGN, TRANSFER, PLEDGE,
HYPOTHECATE OR OTHERWISE DISPOSE OF THIS SECURITY AGREEMENT, ANY NOTE, ANY
COLLATERAL, OR ANY INTEREST THEREIN, (b) LEASE OR LEND COLLATERAL OR PERMIT IT
TO BE USED BY ANYONE OTHER THAN BORROWER OR BORROWER'S EMPLOYEES, CONTRACTORS
AND AGENTS OR (c) MERGE INTO, CONSOLIDATE WITH OR CONVEY OR TRANSFER ITS
PROPERTIES SUBSTANTIALLY AS AN ENTIRETY TO ANY OTHER PERSON OR ENTITY EXCEPT TO
A SUCCESSOR IN INTEREST TO ALL OR SUBSTANTIALLY ALL OF THE BUSINESS OF BORROWER;
PROVIDED, HOWEVER, THAT, THE FINANCIAL CONDITION OF SUCH SUCCESSOR IS GREATER
THAN OR EQUAL TO BORROWER AS DETERMINED IN GOOD FAITH BY LENDER AND THE
SUCCESSOR'S BUSINESS AND ITS MAJOR INVESTORS ARE REASONABLY ACCEPTABLE TO
LENDER. LENDER MAY ASSIGN ANY OF THE NOTES, THIS SECURITY AGREEMENT OR ITS
SECURITY INTEREST IN ANY OR ALL COLLATERAL, OR ANY OR ALL OF THE ABOVE, IN WHOLE
OR IN PART TO ONE OR MORE ASSIGNEES OR SECURED PARTIES WITHOUT NOTICE TO
BORROWER. If Borrower is given notice of such assignment it agrees to
acknowledge receipt thereof in writing and Borrower shall execute such
additional documentation as Lender's assignee and/or secured party shall
reasonably require to evidence such assignment at Lender's expense. Each such
assignee and/or secured party shall have all of the rights, but (except as
provided in this Section 15) none of the obligations, of Lender under this
Security Agreement, unless such assignee or secured party expressly agrees to
assume such obligations in writing. Borrower shall
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not assert against any assignee and/or secured party any defense, counterclaim
or offset that Borrower may have against Lender. Notwithstanding any such
assignment, and providing no Event of Default has occurred and is continuing,
Lender, or its assignees, secured parties, or their agents or assigns, shall not
interfere with Borrower's right to quietly enjoy use of the Collateral subject
to the terms and conditions of this Security Agreement. Subject to the
foregoing, the Notes and this Security Agreement shall inure to the benefit of,
and are binding upon, the successors and assignees of the parties hereto.
Borrower acknowledges that any such assignment by Lender will not change
Borrower's duties or obligations under this Security Agreement and the Notes or
increase any burden or risk on Borrower.
SECTION 16. DEFAULT. (a) Events of Default. Any of the following events or
conditions shall constitute an "Event of Default" hereunder: (i) Borrower's
failure to pay any monies due to Lender hereunder or under any Note beyond the
tenth (10th) day after the same is due; (ii) Borrower's failure to comply with
its obligations under Section 10 or Section 15; (iii) any representation or
warranty of Borrower made in this Security Agreement or the Notes or in any
other agreement, statement or certificate furnished to Lender in connection with
this Security Agreement or the Notes shall prove to have been incorrect in any
material respect when made or given; (iv) Borrower's failure to comply with or
perform any material term, covenant or condition of this Security Agreement or
any Note or under any other agreement between Borrower and Lender or under any
lease or mortgage of real property covering the location of the Collateral if
such failure to comply or perform is not cured by Borrower within thirty (30)
days after Borrower knows of the noncompliance or nonperformance or notice from
Lender or such longer period that Borrower is diligently attempting to effect
such cure; (y) seizure of any of the Collateral under legal process; (vi) the
filing by or against Borrower or any guarantor under any guaranty executed in
connection with this Security Agreement ("Guarantor") of a petition for
reorganization or liquidation under the Bankruptcy Code or any amendment thereto
or under any other insolvency law providing for the relief of debtors; (vii) the
voluntary or involuntary making of an assignment of a substantial portion of its
assets by Borrower or by any Guarantor for the benefit of its creditors, the
appointment of a receiver or trustee for Borrower or any Guarantor or for any of
Borrower's or Guarantor's assets, the institution by or against Borrower or any
Guarantor of any formal or informal proceeding for dissolution, liquidation,
settlement of claims against or winding up of the affairs of Borrower or any
Guarantor provided that in the case of all such involuntary proceedings, same
are not dismissed within sixty (60) days after commencement; (viii) the making
by Borrower or by any Guarantor of a transfer of all or a material portion of
Borrower's or Guarantor's assets or inventory not in the ordinary course of
business; or (ix) any default or breach by any Guarantor of any of the terms of
its guaranty to Lender in connection with this Security Agreement.
(b) Remedies. If any Event of Default has occurred and such Event of
Default is continuing to occur, provided, however, for no period longer than the
applicable cure period under this Agreement, Lender may in its sole discretion
exercise one or more of the following remedies with respect to any or all of the
Collateral: (i) declare due any or all of the aggregate sum of all remaining
payments under the Notes, including the amount of any mandatory or optional
payment required or permitted to be paid by Borrower to Lender at the maturity
of the Notes ("Remaining Payments"); (ii) proceed by appropriate court action or
actions either at law or in equity to enforce Borrower's performance of the
applicable covenants of the Notes and this Security Agreement or to recover all
damages and expenses incurred by Lender by reason of an Event of Default; (iii)
except as provided by law, without court order or prior demand, enter upon the
premises where the Collateral is located and take immediate possession of and
remove it without liability of Lender to Borrower or any other person or entity;
(iv) terminate this Security Agreement and sell the Collateral at public or
private sale, or otherwise dispose of, hold, use or lease any or all of the
Collateral in a commercially reasonable manner; or (v) exercise any other right
or remedy available to it under applicable law. If Lender has declared due any
or all of the Remaining Payments, Borrower will pay immediately to Lender,
without duplication, (A) the Remaining Payments discounted to present value at
the Discount Rate, (B) all amounts which may be then already due or accrued, and
(C) all other amounts due under this Security Agreement and under the Notes
(Lender's Return, as referred to below, means the amounts described in
7
8
clauses (A), (B) and (C) above). The net proceeds of any sale or lease of such
Collateral will be credited against Lender's Return. The net proceeds of a sale
of the Collateral pursuant to this Section 16(b) is defined as the sales price
of the Collateral less reasonable selling expenses, including, without
limitation, reasonable costs of remarketing the Collateral and all reasonable
refurbishing costs and commissions paid with respect to such remarketing. The
net proceeds of a lease of the Collateral pursuant to this Section 16(b) is
defined as the amount equal to the monthly payments due under such lease
(discounted to present value at the Discount Rate) plus the residual value of
the Collateral at the end of the basic term of such lease, as reasonably
determined by Lender, and discounted at the Discount Rate.
At Lender's request, Borrower shall assemble the Collateral and make it
available to Lender at such time and location as Lender may reasonably
designate. Borrower waives any right it may have to redeem the Collateral.
Declaration that any or all amounts under this Security Agreement and/or the
Notes are immediately due and payable and Lender's taking possession of any or
all Collateral shall not terminate this Security Agreement or any of the Notes
unless Lender so notifies Borrower in writing. None of the above remedies is
intended to be exclusive but each is cumulative and may be enforced separately
or concurrently.
(c) Application of Proceeds. The proceeds of any sale of all or any part
of the Collateral and the proceeds of any remedy afforded to Lender by this
Security Agreement shall be paid to and applied as follows:
First, to the payment of reasonable costs and expenses of suit
or foreclosure, if any, and of the sale of Collateral, if any, including,
without limitation, refurbishing costs, costs of remarketing and commissions
related to remarketing, and all Remedy Expenses (defined in Section 22 below)
and taxes, assessments or liens on Collateral superior to Lender's security
interest granted by this Security Agreement;
Second, to the payment of all other amounts not described in
item Third below due under this Security Agreement and all Notes;
Third, to pay Lender an amount equal to Lender's Return, to the
extent not previously paid by Borrower; and
Fourth, to the payment of any surplus to Borrower or to whomever
may lawfully be entitled to receive it.
(d) Effect of Delay; Waiver; Foreclosure on Collateral. No delay or
omission of Lender, in exercising any right or power arising from any Event of
Default shall prevent Lender from exercising that right or power if the Event of
Default continues. No waiver of an Event of Default, whether full or partial, by
Lender shall be taken to extend to any subsequent Event of Default, or to impair
the rights of Lender in respect of any damages suffered as a result of the Event
of Default. The giving, taking or enforcement of any other or additional
security, collateral or guaranty for the payment or discharge of the
Indebtedness and performance of the Obligations shall in no way operate to
prejudice, waive or affect the security interest created by this Security
Agreement or any rights, powers or remedies exercised hereunder or thereunder.
Lender shall not be required first to foreclose on the Collateral prior to
bringing an action against Borrower for sums owed to Lender under this Security
Agreement or under any Note.
SECTION 17. LATE PAYMENTS. Borrower shall pay Lender a late charge of 8% of any
payment owed Lender by Borrower which is not paid when due (taking into account
applicable grace periods), for every month such payment is not paid when due. If
such amounts have not been received by Lender at Lender's place of business or
by Lender's designated agent by the date such amounts are due under this
Security
8
9
Agreement or the Notes, Lender shall xxxx Borrower for such charges. Borrower
acknowledges that invoices for amounts due hereunder or under the Notes are sent
by Lender for Borrower's convenience only. Borrower's non-receipt of an invoice
will not relieve Borrower of its obligation to make payments hereunder or under
the Notes.
SECTION 18. PAYMENTS BY LENDER. If Borrower shall fail to make any payment or
perform any act required hereunder (including, but not limited to, maintenance
of any insurance required by Section 10), then Lender may, but shall not be
required to, after such notice to Borrower as is reasonable under the
circumstances, make such payment or perform such act with the same effect as if
made or performed by Borrower. Borrower will upon demand reimburse Lender for
all sums paid and all reasonable costs and expenses incurred in connection with
the performance of any such act.
SECTION 19. FINANCING STATEMENTS. Borrower hereby appoints Lender (and each of
Lender's officers, employees or agents designated by Lender) with fall power of
substitution by Lender, as Borrower's attorney, with power to execute and
deliver on Borrower's behalf, financing statements and other documents necessary
to perfect and/or give notice of Lender's security interest in any of the
Collateral. Notwithstanding the above, Borrower will, upon Lender's request,
execute all financing statements pursuant to the Uniform Commercial Code and all
such other documents reasonably requested by Lender to perfect Lender's security
interests hereunder. Borrower authorizes Lender to file financing statements
signed only by Lender (where such authorization is permitted by law) at all
places where Lender deems necessary to perfect Lender's security interests
hereunder.
SECTION 20. NATURE OF TRANSACTION Lender makes no representation whatsoever,
express or implied, concerning the legal character of the transaction evidenced
hereby, for tax or any other purpose.
SECTION 21. LENDER'S EXPENSE. Borrower shall pay Lender all reasonable costs and
expenses including but not limited to reasonable attorney's fees, litigation
expenses and the fees of collection agencies, incurred by Lender (a) in
enforcing any of the terms, conditions or provisions hereof and related to the
exercise of its remedies ("Remedy Expenses"), and (b) in connection with any
bankruptcy or post-judgment proceeding, whether or not suit is filed and, in
each and every action, suit or proceeding, including any and all appeals and
petitions therefrom.
SECTION 22. ALTERATIONS; ATTACHMENTS. No material alterations or attachments
shall be made to the Collateral without Lender's prior written consent, which
consent shall not be given for changes that will adversely affect the
reliability and utility of the Collateral or which cannot be removed without
damage to the Collateral, or which in any way decrease the value of the
Collateral for purposes of resale or lease. All attachments and improvements to
the Collateral shall be deemed to be "Collateral" for purposes of the Security
Agreement, and a first priority security interest therein (subject to Permitted
Liens) shall immediately vest in Lender.
SECTION 23. CHATTEL PAPER. (a) One executed copy of the Security Agreement will
be marked "Original" and all other counterparts will be duplicates. To the
extent, if any, that this Security Agreement constitutes chattel paper (as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction) no security interest in the Security Agreement may be created in
any documents other than the "Original." (b) There shall be only one original of
each Note and it shall be marked "Original," and all other counterparts will be
duplicates. To the extent, if any, that any Notes to this Security Agreement
constitutes chattel paper (or as such term is defined in the Uniform Commercial
Code as in effect in any applicable jurisdiction) no security interest in any
Note(s) may be created in any documents other than the "Original."
9
10
SECTION 24. COMMITMENT FEE. Borrower has paid to Lender a commitment fee ("Fee")
of $10,000. The Fee shall be applied by Lender first to reimburse Lender for all
out-of-pocket UCC and other search costs, inspections and labeling costs and
appraisal fees, if any, incurred by Lender, and then proportionally to the first
monthly payment for each Note hereunder in the proportion that the Collateral
value for such Note bears to Lender's entire commitment. However, the portion of
the Fee which is not applied to such monthly payments shall be non-refundable
except if Lender defaults in its obligation to fund Loans pursuant to Section 3.
SECTION 25. NOTICES. All notices hereunder shall be in writing, by registered
mail, or reliable messenger or delivery service (including overnight service)
and shall be directed, as the case may be, to Lender at 0000 Xxxxxx Xxxxxxxxx,
Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Asset Management and to Borrower at
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000, Attention: Mr. Xxx Xxxx, CFO,
or at such other address as the parties may notify one another of in writing
from time to time.
SECTION 26. MISCELLANEOUS. (a) Borrower shall provide Lender with such corporate
resolutions, financial statements and other documents as Lender shall reasonably
request from time to time. (b) Borrower represents that the Collateral hereunder
is used solely for business purposes. (c) Time is of the essence with respect to
this Security Agreement. (d) Borrower acknowledges that Borrower has read this
Security Agreement and the Notes, understands them and agrees to be bound by
their terms and further agrees that this Security Agreement and the Notes
constitute the entire agreement between Lender and Borrower with respect to the
subject matter hereof and supersede all previous agreements, promises, or
representations. (e) This Security Agreement and the Notes may not be changed,
altered or modified except by an instrument signed by an officer or authorized
representative of Lender and Borrower. (f) Any failure of Lender to require
strict performance by Borrower or any waiver by Lender of any provision herein
or in a Note shall not be construed as a consent or waiver of any other breach
of the same or any other provision. (g) If any provision of this Security
Agreement or any Note is held invalid, such invalidity shall not affect any
other provisions hereof or thereof. (h) The obligations of Borrower to pay the
Indebtedness and perform the Obligations shall survive the expiration or earlier
termination of this Security Agreement and each Note until all Obligations of
Borrower to Lender have been met and all liabilities of Borrower to Lender and
any assignee have been paid in full. (i) Borrower will notify Lender at least 30
days before changing its name, principal place of business or chief executive
office. (j) Borrower will, at its expense, promptly execute and deliver to
Lender such documents and assurances (including financing statements) and take
such further action as Lender may reasonably request in order to carry out the
intent of this Security Agreement and Lender's rights and remedies.
SECTION 27. JURISDICTION AND WAIVER OF JURY TRIAL. This Security Agreement and
each Note shall be deemed to have been made under and shall be governed by the
laws of the State of California in all respects, including matters of
construction, validity and performance. At Lender's sole discretion, option and
election, jurisdiction and venue for any legal action between the parties
arising out of or relating to this Security Agreement or any Note shall be in
the Superior Court of Marin County, California, or, in cases where federal
diversity jurisdiction is available, in the United States District Court for the
Northern District of California located in San Francisco, California. BORROWER,
TO THE EXTENT IT MAY LAWFULLY DO SO, HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN
ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS SECURITY AGREEMENT, ANY NOTE, ANY
SECURITY DOCUMENTS, OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH.
SECTION 28. END OF LOAN POSITION. (a) General. Borrower shall be required to
choose a final payment or Note extension election under subsection (b) below
("End of Loan Position") at the expiration of the first Note's term. Borrower
shall provide written notice of its election to Lender at least 90 days prior to
10
11
the end of the term of the first Note. That choice shall be an election of
Borrower's End of Loan Position election for all, but not less than all, of the
Collateral under all Notes under the Security Agreement.
In the event Borrower does not provide 90 days' prior written notice of its
election, Borrower shall be deemed to have elected Election No. 2.
(b) End of Loan Position Elections. As its End of Loan Position, Borrower shall
be required to:
Election No. 1: Make a final payment equal to 15% of the Note's original
principal amount.
Election No. 2: Extend the Note's term for an additional 12 months ("Extended
Term") for a monthly rate of 1.67% of the Note's original principal amount.
IN WITNESS WHEREOF, Borrower and Lender have caused this Security Agreement to
be executed as of the date and year first above written.
PHOENIX LEASING INCORPORATED VISION SOFTWARE TOOLS, INC.
By: /s/ XXXXXX XXXXXX By: /s/ XXXX X. XXXXXX XX.
--------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxx Name (Print): Xxxx X. Xxxxxx Xx.
------------------------------- ---------------------------
Title: Vice President Title: President & CEO
------------------------------ ----------------------------------
HEADQUARTERS LOCATION:
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
County of Alameda
EXHIBITS AND SCHEDULES:
Exhibit A -- Closing Memorandum
11
12
EXHIBIT A TO
SENIOR LOAN AND SECURITY AGREEMENT NO. 6262
DATED AUGUST 20, 1999
CLOSING MEMORANDUM
1* Duly executed Senior Loan and Security Agreement.
2. Duly executed Senior Secured Promissory Note with Exhibit A Collateral
description attached.
3. Insurance certificates reflecting coverage required under Section 10 of
the Senior Loan and Security Agreement.
4.* Resolutions of Borrower's board of directors.
5. Real Property Waiver.**
6. UCC-1 Financing Statements with respect to the Collateral.
7. UCC search (Lender will obtain).
8. Officer's Certificate stating that (i) there are no liens, charges,
security interests or other encumbrances that may affect Lender's right,
title and interest in the Collateral and there are no UCC-1 financing
statements filed or in the process of being filed against any of the
Collateral, other than Permitted Liens, (ii) Borrower is performing
according to Borrower's business plan, (iii) no change which is a
Material Adverse Effect has occurred in the financial condition of
Borrower, (iv) no Event of Default has occurred and is continuing, and
(v) the representations and warranties in Section 5 of the Senior Loan
and Security Agreement are true and correct in all material respects as
if made on the date of the Loan.
9.* Certificate from the Secretary of State of Borrower's state of
incorporation, and from the state in which Borrower's chief executive
office is located, if different, stating the Borrower is in good
standing or is authorized to transact business, as the case may be,
dated not more than thirty days prior to the first Loan (Lender will
obtain).
10. Borrower's Financial Plan.
11. Borrower's most recent financial statements.
12. List of proposed Collateral.
13. Purchase documentation verifying Borrower's ownership of equipment.
14. See Section 3 of the Senior Loan and Security Agreement for additional
conditions to closing.
15. Intercreditor Agreement, if applicable.
16. Subordination Agreement(s).
* First Loan only.
** Required if any Equipment is a fixture, i.e., attached to real property,
or located in certain states.
13
CORPORATE RESOLUTION TO BORROW
RESOLVED: That this corporation, VISION SOFTWARE TOOLS, INC., borrow funds from
PHOENIX LEASING INCORPORATED, a California corporation, ("Lender") and grant as
collateral for such borrowings such items of personal property and fixtures, and
upon such terms and conditions, as the officer or officers hereinafter
authorized, in their discretion, may deem necessary or advisable; and that the
aggregate principal amount of borrowings hereunder shall not exceed in principal
amount the sum of $1,000,000 which amount may be exceeded in the future.
RESOLVED FURTHER: That:
Xxxx X. Xxxxxx Xx. President & CEO /s/ XXXX X. XXXXXX, XX.
-------------------- ---------------------------- -----------------------
(Print or type name) (Title of Corporate Officer) (specimen signature)
or
Xxxxxxx Xxxxxxxxx Director of Finance /s/ XXXXXXX XXXXXXXXX
-------------------- ---------------------------- -----------------------
(Print or type name) (Title of Authorized individual) (specimen signature)
of this corporation (this officer or officers authorized to act pursuant hereto
being hereinafter designated as "authorized officers"), are individually
authorized, directed and empowered, in the name of this corporation, to execute
and deliver to Lender, and Lender is requested to accept, any notes, security
agreements, and other documents or agreements that may be required by Lender in
connection with such borrowings.
RESOLVED FURTHER: That the authorized officers are individually authorized,
directed and empowered, in the name of this corporation, to do or cause to be
done all such further acts and things as they shall deem necessary, advisable,
convenient, or proper in connection with the execution and delivery of any such
notes, security agreements, and other documents or agreements and in connection
with or incidental to the carrying of the same into effect, including without
limitation, the execution, acknowledgment, and delivery of all instruments and
documents which may reasonably be required by Lender under or in connection with
any such borrowing.
RESOLVED FURTHER: That Lender is authorized to act upon these resolutions until
written notice of their revocation is delivered to Lender, and that the
authority hereby granted shall apply with equal force and effect to the
successors in office of the officers herein named.
I, Xxxx X. Xxxxxx, Xx., Officer of VISION SOFTWARE TOOLS, INC., a corporation
incorporated under the laws of the State of California, do hereby certify that
the foregoing is a full, true and correct copy of resolutions of the Board of
Directors of the said corporation, duly and regularly passed or adopted by the
Board of Directors of said corporation as required by law and by the by-laws of
the said corporation on the 21st day of September, 1999.
I further certify that said resolutions are still in full force and effect and
have not been amended or revoked and that the specimen signatures appearing
above are the signatures of the officers authorized to sign for this corporation
by virtue of the said resolutions.
IN WITNESS WHEREOF, I have hereunto set my hand as such Officer, and affixed the
corporate seal of the said corporation, this 8th day of October, 1999
AFFIX CORPORATE /s/ XXXX X. XXXXXX, XX.
SEAL HERE ----------------------------------------
OFFICER OF VISION SOFTWARE TOOLS.
[PERSON WHO SIGNS HERE MUST BE DIFFERENT
FROM PERSON(S) WHO SIGNED ABOVE.]
14
NOTE NO. 02
TO SENIOR LOAN AND SECURITY AGREEMENT NO. 6262
DATED AS OF AUGUST 20, 1999
BETWEEN VISION SOFTWARE TOOLS, INC. AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
SENIOR SECURED PROMISSORY NOTE
$134,571.60 October 29, 1999
FOR VALUE RECEIVED, the undersigned, VISION SOFTWARE TOOLS, INC., a California
corporation ("Borrower"), hereby promises to pay to the order of PHOENIX LEASING
INCORPORATED, or its assigns (the "Lender") the principal sum of One Hundred
Thirty-four Thousand Five Hundred Seventy-one and 60/100 Dollars ($134,571.60),
together with interest thereon until the principal is fully repaid. On the last
day of the thirty-sixth (36th) month the entire remaining unpaid principal
balance, together with interest accrued and unpaid, shall be due and payable.
Principal and interest shall be payable in consecutive monthly installments,
each of which shall be equal to the percentage specified below of the principal
sum and in the amounts each month specified below.
Month Payment Amount Percentage
----- -------------- ----------
1-36 $4,299.56 3.195%
The first and last monthly installments shall be due immediately prior to the
date of this Note. An interim payment will be due on the first day of the month
immediately following the date of this Note (unless the date of this Note is the
first day of the month in which case no interim payment is due on that day), for
the period from (and including) the date Lender funds the principal amount of
this Note until (but not including) the first day of the following month and
shall be equal to 1/30th of the monthly payment multiplied by the number of
days, if any, between (and including) the funding date and the first day of the
following month. The second monthly payment shall be due on the first day of the
second month following the date of this Note and each succeeding payment shall
be made on the first day of each succeeding month.
Borrower's End of Loan Position payment shall be due on the first day of the
thirty-seventh (37th) month as provided below: (a) General. Borrower shall be
required to choose a final payment or Note extension election ("End of Loan
Position") at the expiration of the first Note's term. Borrower shall provide
written notice of its election to Lender at least 90 days prior to the end of
the term of the first Note. That choice shall be an election of Borrower's End
of Loan Position election for all, but not less than all, of the Collateral
under all Notes under the Security Agreement.
In the event Borrower does not provide 90 days' prior written notice of its
election, Borrower shall be deemed to have elected Election No. 2.
(b) End of Loan Position Elections. As its End of Loan Position, Borrower shall
be required to:
Election No. 1: Make a final payment equal to 15% of the Note's original
principal amount.
Election No. 2: Extend the Note's term for an additional 12 months ("Extended
Term") for a monthly rate of 1.67% of the Note's original principal amount.
Borrower has the ability to prepay all, but not fewer than all, outstanding
Notes in whole but not in part. The prepayment amount shall be the sum of (i)
and (ii) below, discounting the amounts in (ii) at a rate of
1
15
NOTE NO, 02
TO SENIOR LOAN AND SECURITY AGREEMENT
NO. 6262
DATED AS OF AUGUST 20,1999
BETWEEN VISION SOFTWARE TOOLS, INC.
AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
6% per annum. compounded monthly on the basis of a 360 day year: (i) all amounts
which may be then due or accrued to the payment date for all outstanding Notes;
(ii) as of such payment date, an amount equal to: (A) all remaining monthly
payments due under all outstanding Notes, and (B) twelve (12) additional monthly
payments for this Note all outstanding Notes, the amount of which will be
calculated in accordance with Election No. 2 in Section 28. The prepayment
conditions are as follows: (a) Borrower must provide Lender with at least five
(5) days' advance written notice of its intention to prepay; and (b) the
prepayment date must fall on a regular monthly payment date.
Borrower shall pay Lender a late charge of 8% of any payment owed Lender by
Borrower which is not paid when due (taking into account applicable grace
periods), for every month such payment is not paid when due, but in no event an
amount greater than the highest rate permitted by applicable law.
Payments of principal and interest hereunder shall be made in lawful money of
the United States of America at the offices of Lender at 0000 Xxxxxx Xxxxxxxxx,
Xxx Xxxxxx, Xxxxxxxxxx 00000, or such other place as the Lender shall designate
to the Borrower in writing.
This Note is secured by a Senior Loan and Security Agreement, dated as of August
20, 1999 between Borrower and Lender (the "Security Agreement") and is entitled
to the benefits of the Security Agreement which contains, among other things,
provisions for (i) events of default and the Lender's rights and remedies
following an event of default (which include, but are not limited to,
acceleration of this Note), (ii) Collateral which secures the repayment of this
Note and is more particularly described on Exhibit A, and (iii) other rights and
remedies of Lender,
This Note may be declared due prior to its expressed maturity date only in the
events, on the terms and in the manner provided in the Security Agreement.
This Note shall be deemed to have been made under and shall be governed by the
laws of the State of California in all respects, including matters of
construction, validity and performance. At Lender's sole discretion, option and
election, jurisdiction and venue for any legal action between the parties
arising out of or relating to this Note shall be in the Superior Court of Marin
County, California, or, in cases where federal diversity jurisdiction is
available, in the United States District Court for the Northern District of
California located in San Francisco, California.
The Borrower hereby expressly waives presentment for payment, demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
and all lack of diligence or delays in collection or enforcement of this Note.
BORROWER:
VISION SOFTWARE TOOLS, INC.
BY: /S/ XXXXXXX XXXXXXXXX
-------------------------------------
Name (Print): Xxxxxxx Xxxxxxxxx
---------------------------
Title: Director of Finance
----------------------------------
2
16
Phoenix Leasing Incorporated
Funding Request
Exhibit A
Borrower: Vision Software Tools, Inc.
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Master Loan: 6262 Note: 02
L TOTAL TAX PD No Entry Required
ITEM INVOICE DESCRIPTION EQ QTY SERIAL o INVOIC'D $ $ PD BY VNDR? CHK TRANSACT Net $ Due Net $ Due
NO VENDOR NAME NO. OF ITEM CD NUMBER c Net of Sis Tx BORROWER (Y/N) NO. DATE Borrower Vendor
------------------------------------------------------------------------------------------------------------------------------------
1 Insight 5277891 IBM Thinkpad 1 2 1 7,160.00 7,160.00 N 108211 7/22/99 $ 7,160.00 $0.00
770 PII
2 Insight 5277887 IBM Thinkpad 1 3 1 10,827.00 10,827.00 N 108211 7/22/99 $10,827.00 $0.00
000 XXX
0 Xxxxxxx 0000000 XXX Thinkpad 1 2 1 8,800.00 8,800.00 N 108211 7/22/99 $ 8,800.00 $0.00
770 PII
4 Dell Direct 253529440 Dell 1 17 1JD6R, 1 33,728.00 33,728.00 Y 108402 8/2/99
Dimension 1JD6V,
XPS T 450 1JD6X,
1JD6Z,
0XX00,
0XX00,
0XX00,
0XX0X,
0XX0X,
0XX0X,
0XX0X,
0XX0X,
0XX0X,
0XX0X,
0XX0X,
0XX0X
0XXXX
$33,728.00 $0.00
5 253529440 Tax 29 1 2,859.72 2,859.72 Y 108402 8/2/99 $ 2,859.72 $0.00
6 253529440 Shipping 27 1 935.00 935.00 Y 108402 8/2/99 $ 935.00 $0.00
& Handling
7 Insight 5307707 Simplet Tech 1
128 MB IBM 16 N/A 1 5,600.00 5,600.00 N 108310 8/18/99 $ 5,600.00 $0.00
8 5307707 Shipping 27 1 105.00 105.00 N 108310 8/18/99 $ 105.00 $0.00
& Handling
9 Insight 5356783 Zip 100 MB 1 25 N/A 1 2,375.00 2,375.00 N 108310 8/18/99 $ 2,375.00 $0.00
Parallel
Port
10 5356783 WD 9.1GB 1 2 N/A 1 372.00 372.00 N 108310 8/18/99 $ 372.00 $0.00
XXXX
7200RPM
11 5356783 Intellimouse 24 2 N/A 1 352.00 352.00 108310 8/18/99 $ 352.00 $0.00
12 5356783 Shipping 1 N/A 1 221.96 221.96 N 108310 8/18/99 $ 221.96 $0.00
& Handling
17
Phoenix Leasing Incorporated
Funding Request
Exhibit A
13 Insight 5302135 IBM Thinkpad 1 8 1S954981U78 1 35,632.00 35,632.00 Y 108310 8/18/99
MT138,
1S954981U78
MT338,
1S954981U78
MT417,
1S954981U78
MT439,
1S954981U78
MT486,
1S954981U78
MT582,
1S954981U78
MT707,
??????????? $ 35,632.00 $ 0.00
14 5302135 Shipping 1 1 183.96 183.96 Y 108310 8/18/99 $ 183.96 $ 0.00
& Handling
15 Insight 5365871 Versa SX NB 1 1 N/A 1 3,346.00 3,346.00 108310 8/18/99 $ 3,346.00 $ 0.00
16 Insight 5329674 IBM Thinkpad 1 5 1S26454AU78 1 17,045.00 17,045.00 N 108310 8/18/99 $ 17,045.00 $ 0.00
600E PII VHK99,
1S26454AU78
VKC05,
1S26454AU78
VKD61,
1S26454AU78
VKD77,
1S26454AU78 $ 17,045.00 $ 0.00
17 5329674 Shipping 27 1 178.96 178.96 N 108310 8/18/99 $ 178.96 $ 0.00
& Handling
18 Insight 5325014 Toshiba 1 5 9071368A, 1 4,850.00 4,850.00 N 108311 8/18/99 $ 4,850.00 $ 0.00
Equium 7100D 9071435A,
PII 9071439A,
9071441A,
907?????, $ 4,850.00 $ 0.00
TOTAL AMOUNT DUE TO BORROWER $134,571.60
TOTAL AMOUNT DUE TO VENDOR $ 0.00
TOTAL DRAW $134,571.60
Borrower Signature: /s/ Xxxxxxx Xxxxxxxxx Date: 10/20/99
18
OFFICER'S CERTIFICATE
The undersigned, Xxxxxxx Xxxxxxxxx, hereby certifies that:
(i) I am the Director of Finance of VISION SOFTWARE TOOLS, INC., a
California corporation (the "Borrower");
(ii) as such officer, I am familiar with the terms and conditions of that
certain Senior Loan and Security Agreement (the "Security Agreement")
dated as of August 20, 1999 between Borrower and PHOENIX LEASING
INCORPORATED ("Lender");
(iii) the equipment, machinery, furniture, fixtures and other items on the
attached list are free and clear of any and all liens, charges,
security interests or other encumbrances that may affect Lender's
right, title or interest in and to the equipment and other items, and
no UCC-1 financing statements or other grants of security interests
have been or are in the process of being filed against any of such
equipment or other items, other than Permitted Liens (as such term is
defined in the Security Agreement);
(iv) Borrower is performing according to Borrower's business plan described
in Section 3 of the Security Agreement, a true copy of which business
plan has been delivered to Lender;
(v) there has been no material adverse change in the financial condition of
Borrower from the date of its most recent financial statements, true
copies of which have been delivered to Lender;
(vi) as of the date hereof, no Event of Default (as defined in the Security
Agreement) or event which with the giving of notice or passage of time,
or both, could become an Event of Default has occurred and is
continuing; and
(vii) the representations and warranties in Section 5 of the Security
Agreement are true and correct as if made on the date of the Loan.
IN WITNESS WHEREOF, I hereby execute this certificate on this 20th day of
October, 1999.
/s/ XXXXXXX XXXXXXXXX
----------------------------------------
Xxxxxxx Xxxxxxxxx
19
NOTE NO. 01
TO SENIOR LOAN AND SECURITY AGREEMENT
NO. 6262
DATED AS OF AUGUST 20, 1999
BETWEEN VISION SOFTWARE TOOLS, INC.
AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
SENIOR SECURED PROMISSORY NOTE
$246,049.42 October 29, 1999
FOR VALUE RECEIVED, the undersigned, VISION SOFTWARE TOOLS, INC., a California
corporation ("Borrower"), hereby promises to pay to the order of PHOENIX LEASING
INCORPORATED, or its assigns (the "Lender") the principal sum of Two Hundred
Forty-six Thousand Forty-nine and 42/100 Dollars ($246,049.42), together with
interest thereon until the principal balance, together with interest accrued and
unpaid, shall be due and payable. Principal and interest shall be payable in
consecutive monthly installments, each of which shall be equal to the percentage
specified below of the principal sum and in the amounts each month specified
below.
Month Payment Amount Percentage
1-36 $7,861.28 3.195%
The first and last monthly installments shall be due immediately prior to the
date of this Note. An interim payment will be due on the first day of the month
immediately following the date of this Note (unless the date of this Note is the
first day of the month in which case no interim payment is due on that day), for
the period from (and including) the date Lender funds the principal amount of
this Note until (but not including) the first day of the following month and
shall be equal to 1/30th of the monthly payment multiplied by the number of
days, if any, between (and including) the funding date and the first day of the
following month. The second monthly payment shall be due on the first day of the
second month following the date of this Note and each succeeding payment shall
be made on the first day of each succeeding month.
Borrower's End of Loan Position payment shall be due on the first day of the
thirty-seventh (37th) month as provided below: (a) General. Borrower shall be
required to choose a final payment or Note extension election ("End of Loan
Position") at the expiration of the first Note's term. Borrower shall provide
written notice of its election to Lender at least 90 days prior to the end of
the term of the first Note. That choice shall be an election of Borrower's End
of Loan Position election for all, but not less than all, of the Collateral
under all Notes under the Security Agreement.
In the event Borrower does not provide 90 days' prior written notice of its
election, Borrower shall be deemed to have elected Election No. 2.
(b) End of Loan Position Elections. As its End of Loan Position, Borrower shall
be required to:
Election No. 1: Make a final payment equal to 15% of the Note's original
principal amount.
Election No. 2: Extend the Note's term for an additional 12 months ("Extended
Term") for a monthly rate of 1.67% of the Note's original principal amount.
Borrower has the ability to prepay all, but not fewer than all, outstanding
Notes in whole but not in part. The prepayment amount shall be the sum of (i)
and (ii) below, discounting the amounts in (ii) at a rate of
1
20
NOTE NO. 01
TO SENIOR LOAN AND SECURITY AGREEMENT
NO. 6262
DATED AS OF AUGUST 20, 1999
BETWEEN VISION SOFTWARE TOOLS, INC.
AS BORROWER AND
PHOENIX LEASING INCORPORATED AS LENDER
6% per annum compounded monthly on the basis of a 360 day year: (i) all amounts
which may be then due or accrued to the payment date for all outstanding Notes;
(ii) as of such payment date, an amount equal to: (A) all remaining monthly
payments due under all outstanding Notes, and (B) twelve (12) additional monthly
payments for this Note all outstanding Notes, the amount of which will be
calculated in accordance with Election No. 2 in Section 28. The prepayment
conditions are as follows: (a) Borrower must provide Lender with at least five
(5) days' advance written notice of its intention to prepay; and (b) the
prepayment date must fall on a regular monthly payment date.
Borrower shall pay Lender a late charge of 8% of any payment owed Lender by
Borrower which is not paid when due (taking into account applicable grace
periods), for every month such payment is not paid when due, but in no event an
amount greater than the highest rate permitted by applicable law.
Payments of principal and interest hereunder shall be made in lawful money of
the United States of America at the offices of Lender at 0000 Xxxxxx Xxxxxxxxx,
Xxx Xxxxxx, Xxxxxxxxxx 00000, or such other place as the Lender shall designate
to the Borrower in writing.
This Note is secured by a Senior Loan and Security Agreement, dated as of
August 20, 1999 between Borrower and Lender (the "Security Agreement") and is
entitled to the benefits of the Security Agreement which contains, among other
things, provisions for (i) events of default and the Lender's rights and
remedies following an even of default (which include, but are not limited to,
acceleration of this Note), (ii) Collateral which secures the repayment of this
Note and is more particularly described on Exhibit A, and (iii) other rights
and remedies of Lender.
This Note may be declared due prior to its expressed maturity date only in the
events, on the terms and in the manner provided in the Security Agreement.
This Note shall be deemed to have been made under and shall be governed by the
laws of the State of California in all respects, including matters of
construction, validity and performance. At Lender's sole discretion, option and
election, jurisdiction and venue for any legal action between the parties
arising out of or relating to this Note shall be in the Superior Court of Marin
County, California, or, in cases where federal diversity jurisdiction is
available, in the United States District Court for the Northern District of
California located in San Francisco, California.
The Borrower hereby expressly waives presentment for payment, demand for
payment, notice of dishonor, protest, notice of protest, notice of nonpayment,
and all lack of diligence or delays in collection or enforcement of this Note.
BORROWER:
VISION SOFTWARE TOOLS, INC.
By: /s/ XXXXXXX XXXXXXXXX
------------------------------------
Name (Print): Xxxxxxx Xxxxxxxxx
--------------------------
Title: Director of Finance
---------------------------------
2
21
Phoenix Leasing Incorporated
Funding Request
Exhibit A
Borrower: Vision Software Tools, Inc.
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Master Loan: 6262 Note: 01
L TOTAL
ITEM INVOICE DESCRIPTION EQ SERIAL O INVOICED $ $ PD BY
NO VENDOR NAME NO. OF ITEM CD QTY NUMBER C NET OF SLS TX BORROWER
---- ----------- ------- ----------- -- --- ------- - -------------- --------
------------------------------------------------------------------------------------------------------------------------------------
1 Vanguard Legato 303323 Teknion telemarketing 6 1 1 7,350.00 7,350.00
area cubicles
------------------------------------------------------------------------------------------------------------------------------------
2 303323 Consultant stations 6 1 1 13,356.00 13,356.00
------------------------------------------------------------------------------------------------------------------------------------
3 303323 Consultant cubes 6 1 1 20,020.00 20,020.00
------------------------------------------------------------------------------------------------------------------------------------
4 303323 Mobile box file 6 22 1 3,740.00 3,740.00
pedestal
------------------------------------------------------------------------------------------------------------------------------------
5 303323 Installation 27 1 1 7,995.00 7,995.00
------------------------------------------------------------------------------------------------------------------------------------
6 303323 Design service 26 1 1 1,000.00 1,000.00
------------------------------------------------------------------------------------------------------------------------------------
7 303323 Sales Tax 29 1 1 4,328.03 4,328.03
------------------------------------------------------------------------------------------------------------------------------------
8 Comp View 38883 LCD Projector LP750 7 1 SN2YW90901220 1 6,385.00 6,385.00
------------------------------------------------------------------------------------------------------------------------------------
9 38883 Sales Tax 29 1 1 542.73 542.73
------------------------------------------------------------------------------------------------------------------------------------
10 38883 Transportation charge 27 1 1 73.00 73.00
------------------------------------------------------------------------------------------------------------------------------------
11 Insight 4841645 IBM Thinkpad 770E, 1 4 1S954851U78FN647, 1 9,016.00 9,016.00
266MMX 1S954851U78FP318,
1S954851U78FP344,
1S954851U78FY426
------------------------------------------------------------------------------------------------------------------------------------
12 4841645 Realport Ethernet PC 1 3 N/A 1 933.00 933.00
Card
------------------------------------------------------------------------------------------------------------------------------------
13 4841645 Toshiba Equium 7100D 1 2 Z8043019A, 1 1,666.00 1,666.00
PII 333 Z8043043A
------------------------------------------------------------------------------------------------------------------------------------
14 4841645 MAG 17" 720V2 Monitor 1 2 HD58IA005925, 1 480.00 480.00
HD581A005935
------------------------------------------------------------------------------------------------------------------------------------
15 4841645 Shipping & Handling 27 1 277.16 277.16
------------------------------------------------------------------------------------------------------------------------------------
16 Insight 4912638 Exchange server, 18200 1 N/A 1 2,909.00 2,909.00
Seagate misc
------------------------------------------------------------------------------------------------------------------------------------
17 4912638 Intellimouse 3.0 24 1 1 195.00 195.00
------------------------------------------------------------------------------------------------------------------------------------
18 Insight 4910532 IBM Thinkpad 770PII 1 1 N/A 1 3,825.00 3,825.00
------------------------------------------------------------------------------------------------------------------------------------
19 4910532 IBM keyboard 1 5 N/A 1 130.00 130.00
------------------------------------------------------------------------------------------------------------------------------------
20 4910532 5.1 GB, IDE XXX-0 0 0 X/X 0 2,025.00 2,025.00
------------------------------------------------------------------------------------------------------------------------------------
21 Insight 4637583 IBM Thinkpad 600PII 1 2 N/A 1 5,351.80 5,351.80
------------------------------------------------------------------------------------------------------------------------------------
22 Insight 4844219 IBM Thinkpad 600PII 1 3 1S264535U78YZ370, 1 6,525.00 6,525.00
1S264535U78ZA180,
1S264535U78ZA212
------------------------------------------------------------------------------------------------------------------------------------
23 Dell Direct 229642863 PowerEdge 4300 1 1 3RH61 1 15,525.24 15,525.24
Redundant base
------------------------------------------------------------------------------------------------------------------------------------
24 229642863 Tax 29 1 1 1,289.07 1,289.07
------------------------------------------------------------------------------------------------------------------------------------
25 229642863 Shipping & handling 27 1 1 100.00 100.00
------------------------------------------------------------------------------------------------------------------------------------
26 Dell Direct 229641873 Dimension XPS T450 1 5 3R34E 1 9,710.00 9,710.00
3R34U
3R35E
3R35U
3R3CA
------------------------------------------------------------------------------------------------------------------------------------
27 229641873 Tax 29 1 838.22 838.22
------------------------------------------------------------------------------------------------------------------------------------
28 229641873 Shipping & Handling 27 1 450.00 450.00
------------------------------------------------------------------------------------------------------------------------------------
No entry required
TAX PD ------------------------
ITEM VNDR? CHK TRANSACT. Net $ Due Net $ Due
NO (Y/N) NO. DATE Borrower Vendor
---- ------ --- --------- ------------ ---------
--------------------------------------------------------------------------
1 Y 104990 6/16/99
$ 7,350.00 $0.00
--------------------------------------------------------------------------
2 Y 104990 6/16/99 $13,356.00 $0.00
--------------------------------------------------------------------------
3 Y 104990 6/16/99 $20,020.00 $0.00
--------------------------------------------------------------------------
4 Y 104990 6/16/99
$ 3,740.00 $0.00
--------------------------------------------------------------------------
5 Y 104990 6/16/99 $ 7,995.00 $0.00
--------------------------------------------------------------------------
6 Y 104990 6/16/99 $ 1,000.00 $0.00
--------------------------------------------------------------------------
7 Y 104990 6/16/99 $ 4,328.03 $0.00
--------------------------------------------------------------------------
8 Y 104714 5/7/99 $ 6,385.00 $0.00
--------------------------------------------------------------------------
9 Y 104714 5/7/99 $ 542.73 $0.00
--------------------------------------------------------------------------
10 Y 104714 5/7/99 $ 73.00 $0.00
--------------------------------------------------------------------------
11 N 104321 3/18/99
$ 8,294.72 $0.00
--------------------------------------------------------------------------
00 X 000000 3/18/99
$ 858.36 $0.00
--------------------------------------------------------------------------
00 X 000000 3/18/99
$ 1,532.72 $0.00
--------------------------------------------------------------------------
00 X 000000 3/18/99
$ 441.60 $0.00
--------------------------------------------------------------------------
00 X 000000 3/18/99 $ 277.16 $0.00
--------------------------------------------------------------------------
00 X 000000 4/20/99
$ 2,909.00 $0.00
--------------------------------------------------------------------------
00 X 000000 4/20/99 $ 195.00 $0.00
--------------------------------------------------------------------------
00 X 000000 4/20/99 $ 3,825.00 $0.00
--------------------------------------------------------------------------
00 X 000000 4/20/99 $ 130.00 $0.00
--------------------------------------------------------------------------
00 X 000000 4/20/99 $ 2,025.00 $0.00
--------------------------------------------------------------------------
21 N 104476 4/5/99 $ 5,351.80 $0.00
--------------------------------------------------------------------------
00 X 000000 3/30/99
$ 6,003.00 $0.00
--------------------------------------------------------------------------
23 Y 104779 5/24/99
$15,525.24 $0.00
--------------------------------------------------------------------------
24 Y 104779 5/24/99 $ 1,289.07 $0.00
--------------------------------------------------------------------------
25 Y 104779 5/24/99 $ 100.00 $0.00
--------------------------------------------------------------------------
26 Y 104779 5/24/99
$ 9,710.00 $0.00
--------------------------------------------------------------------------
27 Y 104779 5/24/99 $ 838.22 $0.00
--------------------------------------------------------------------------
28 Y 104779 5/24/99 $ 450.00 $0.00
--------------------------------------------------------------------------
Page 1 of 3
Property of Phoenix Leasing Incorporated
22
Phoenix Leasing Incorporated
Funding Request
Exhibit A
------------------------------------------------------------------------------------------------------------------------------------
29 Insight 4999598 IBM Thinkpad 770 1 3 1S954972U78FW912, 1 10,785.00 10,785.00 N 104725 5/10/99
1S954972U78FW999,
1S954972U78FX352 $10,785.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
30 4999598 IBM Thinkpad 600E 1 2 1S26453AU78NAC61, 1 5,600.00 5,600.00 N 104725 5/10/99
1S26453AU78NCG44 $5,600.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
31 4999598 Realport Ethernet PC 1 6 N/A 1 798.00 798.00 N 104725 5/10/99
Card $798.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
32 4999598 Shipping & 27 1 96.55 96.55 N 104725 5/10/99 $96.55 $0.00
handling
------------------------------------------------------------------------------------------------------------------------------------
33 Insight 5046789 HP Officejet 710 1 2 SSG91EA80H9, 1 954.00 954.00 104878 6/2/99
SSG91EA81HZ $954.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
34 5046789 Toshiba Equium 7100D 1 3 49052566A, 1 2,670.00 2,670.00 104878 6/2/99
49052567A,
49052916A $2,670.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
35 Insight 5088421 IBM Thinkpad 600E PII 1 3 1S26453AU78NGB26, 1 8,400.00 8,400.00 N 104894 6/3/99
1S26453AU78NGH42,
1S26453AU78NGN82 $8,400.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
36 5088421 Toshiba 7100D 1 3 49054348A, 1 4,295.00 4,295.00 N 104894 6/3/99
49054421A,
49054425A,
49054525A,
49054527A $4,295.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
37 5088421 MAG17" Monitor 1 6 HD58J3001669, 1 1,440.00 1,440.00 N 104894 6/3/99
HD58J3001675,
HD58J3001763,
HD58J3001778,
HD58J3001830,
HD58J3001867 $1,440.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
38 5088421 Shipping & 27 1 638.47 638.47 N 104894 6/3/99 $638.47 $0.00
handling
------------------------------------------------------------------------------------------------------------------------------------
39 Dell 241778265 Dimension XPS T450 1 5 ORRJG 1 9,355.00 9,355.00 Y 105070 6/23/99
Direct ORRJM
ORRJS
ORRJW
ORRK1 $9,355.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
40 241778265 Tax 29 1 794.49 794.49 Y 105070 6/23/99 $794.49 $0.00
------------------------------------------------------------------------------------------------------------------------------------
41 241778265 Shipping & 27 1 450.00 450.00 Y 105070 6/23/99 $450.00 $0.00
handling
------------------------------------------------------------------------------------------------------------------------------------
42 Insight 5103187 IBM Thinkpad 770 PII 1 2 1S954972U78FW628, 1 7,190.00 7,190.00 N 104974 6/16/99
1S954972U78FX247 $7,190.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
43 Insight 5123761 IBM Thinkpad 770 PII 1 4 1S954971U78HF978, 1 14,960.00 14,960.00 N 104974 6/16/99
1S954971U78HF987,
1S954971U78HG010,
1S954971U78HG026 $14,960.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
44 5123761 HP Officejet 1 2 SMY92PA11JJ, 1 954.00 954.00 N 104974 6/16/99
SMY938B10HT $954.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
45 5123761 Shipping & 1 1 147.36 147.36 N 104974 6/16/99 $147.36 $0.00
handling
------------------------------------------------------------------------------------------------------------------------------------
46 Insight 5152826 IBM Thinkpad 770 1 1 1S954971U78HF243 1 3,740.00 3,740.00 N 105073 6/23/99 $3,740.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
47 5152826 Shipping & 27 1 1 28.64 28.64 N 105073 6/23/99 $28.64 $0.00
handling
------------------------------------------------------------------------------------------------------------------------------------
48 Insight 5130405 IBM Thinkpad 770 PII 1 1 N/A 1 3,595.00 3,595.00 N 105073 6/23/99
300 ADP $3,595.00 $0.00
------------------------------------------------------------------------------------------------------------------------------------
Page 2 of 3
Property of Phoenix Leasing Incorporated
23
Phoenix Leasing Incorporated
Funding Request
Exhibit A
-----------------------------------------------------------------------------------------------
49 Insight 5127491 Toshiba Equiurn 7100D 1 5 49054512A, 1 4,295.00
PII 49054513A,
49054517A,
49054518A,
49054519A
-----------------------------------------------------------------------------------------------
50 5127491 Shipping & handling 1 1 193.21
-----------------------------------------------------------------------------------------------
51 Insight 5190747 IBM Thinkpad 770 PII 1 3 N/A 1 11,010.00
-----------------------------------------------------------------------------------------------
52 Insight 5195928 5.1 GB IDE 1 2 1S11J89477814545, 1 1,354.00
1S11J89477814548
-----------------------------------------------------------------------------------------------
53 5195928 NEC Superscript Printer 1 2 U613652398CH, 1 638.00
U613652398CI
-----------------------------------------------------------------------------------------------
54 5195928 Software 24 4 1 2,792.00
-----------------------------------------------------------------------------------------------
55 Insight 5192107 Realport Cardbus 1 2 N/A 1 578.00
Ethernet
-----------------------------------------------------------------------------------------------
56 5192107 Toshiba Equiurn 7100D 1 5 49053040A, 1 3,995.00
PII 49053042A,
49053046A,
49053049A,
49053050A
-----------------------------------------------------------------------------------------------
57 5192107 Shipping & handling 27 1 507.10
-----------------------------------------------------------------------------------------------
58 Insight 5221826 IBM Thinkpad 600E PII 1 2 1S264555U78CKB00, 1 7,272.00
1S264555U78CKG95
-----------------------------------------------------------------------------------------------
59 Insight 5242130 IBM Thinkpad 600E PII 1 1 1S26453AU78NHH80 1 2,780.00
-----------------------------------------------------------------------------------------------
60 5242130 Ultraslim 56 W AC 1 5 N/A 1 335.00
-----------------------------------------------------------------------------------------------
61 Insight 5264882 IBM Thinkpad 770z PII 1 2 1S954982U78NG609, 1 8,800.00
1S954982U78NG700
-----------------------------------------------------------------------------------------------
62 5264882 Shipping & Handling 27 1 62.95
-----------------------------------------------------------------------------------------------
------------------------------------------------------------------------------
49 4,295.00 N 105073 6/23/99
$4,295.00 $0.00
------------------------------------------------------------------
50 193.21 N 105073 6/23/99 $193.21 $0.00
------------------------------------------------------------------
51 11,010.00 N 105217 7/12/99 $11,010.00 $0.00
------------------------------------------------------------------
52 1,354.00 N 105217 7/12/99
$1,354.00 $0.00
------------------------------------------------------------------
53 638.00 N 105217 7/12/99
$638.00 $0.00
------------------------------------------------------------------
54 2,792.00 N 105217 7/12/99 $2,792.00 $0.00
------------------------------------------------------------------
55 578.00 N 105217 7/12/99
$578.00 $0.00
------------------------------------------------------------------
56 3,995.00 N 105217 7/12/99
$3,995.00 $0.00
------------------------------------------------------------------
57 507.10 N 105217 7/12/99 $507.10 $0.00
------------------------------------------------------------------
58 7,272.00 N 108210 7/22/99
$7,272.00 $0.00
------------------------------------------------------------------
59 2,780.00 N 108210 7/22/99 $2,780.00 $0.00
------------------------------------------------------------------
60 335.00 N 108210 7/22/99
$335.00 $0.00
------------------------------------------------------------------
61 8,800.00 N 108210 7/22/99
$8,800.00 $0.00
------------------------------------------------------------------
62 62.95 N 108210 7/22/99 $62.95 $0.00
------------------------------------------------------------------
----------------------------
TOTAL AMOUNT DUE TO BORROWER $246,049.42
----------------------------
TOTAL AMOUNT DUE TO VENDOR $0.00
------------
TOTAL DRAW $246,049.42
------------
Borrower Signature: /s/ Xxxxxxx Xxxxxxxxx Date: 10/20/99
24
OFFICER'S CERTIFICATE
The undersigned, Xxxxxxx Xxxxxxxxx, hereby certifies that:
(i) I am the Director of Finance of VISION SOFTWARE TOOLS, INC., a California
corporation (the "Borrower");
(ii) as such officer, I am familiar with the terms and conditions of that
certain Senior Loan and Security Agreement (the "Security Agreement")
dated as of August 20, 1999 between Borrower and PHOENIX LEASING
INCORPORATED ("Lender");
(iii) the equipment, machinery, furniture, fixtures and other items on the
attached list are free and clear of any and all liens, charges, security
interests or other encumbrances that may affect Lender's right, title or
interest in and to the equipment and other items, and no UCC-1 financing
statements or other grants of security interests have been or are in the
process of being filed against any of such equipment or other items,
other than Permitted Liens (as such term is defined in the Security
Agreement);
(iv) Borrower is performing according to Borrower's business plan described in
Section 3 of the Security Agreement, a true copy of which business plan
has been delivered to Lender;
(v) there has been no material adverse change in the financial condition of
Borrower from the date of its most recent financial statements, true
copies of which have been delivered to Lender;
(vi) as of the date hereof, no Event of Default (as defined in the Security
Agreement) or event which with the giving of notice or passage of time,
or both, could become an Event of Default has occurred and is continuing;
and
(vii) the representations and warranties in Section 5 of the Security Agreement
are true and correct as if made on the date of the Loan.
IN WITNESS WHEREOF, I hereby execute this certificate on this 20th day of
October 1999.
/s/ Xxxxxxx Xxxxxxxxx
-------------------------------
25
[PHOENIX LEASING
INCORPORATED LETTERHEAD]
October 1, 1999
Xx. Xxxxxxx Xxxxxxxxx
Director of Finance & Administration
Vision Software Tools, Inc.
0000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Dear Prakash:
I enjoyed touching base with you yesterday and am pleased to offer this
proposal to both increase and extend the existing equipment finance commitment.
Al terms and conditions of the Senior Loan and Security Agreement ("Loan")
remain in effect with the following changes:
o Line increase of $1,000,000 for a Total Line of $2,000,000.
o Commitment period extended to September 30, 2000.
I have attached the current commitment letter for your convenience. Upon formal
credit approval, documentation would consist of a one-page amendment letter
essentially similar to this letter.
If you are in agreement with the aforementioned, please have a person
authorized to sign on behalf of your company sign and date this letter as
indicated below and return to me along with the requested items outlined below.
PHOENIX LEASING INCORPORATED VISION SOFTWARE TOOLS, INC.
By: /s/ XXX XXXXXX By: /s/ XXXXXXX XXXXXXXXX
-------------------------- ----------------------
Title: Director, Business Dev't. Title: Director of Finance
----------------------- -------------------
Date: 10-1-99 Date: 10/18/99
------------------------ --------------------
Items needed to process this request:
o Most recent interim financial statements.
o Post Series E capitalization table.
o Most current version of financial plan through 9-30-00. (If the current
credit approved plan is still in effect, we can work with this plan-See
attached commitment letter).
o Commitment fee replenishment of $10,000 payable to Phoenix Leasing, Inc.
