Exhibit 10.2
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated as
of the Effective Date is between Silicon Valley Bank, Specialty Finance Division
of ("Bank"), and CorVu North America, Inc. a Minnesota corporation ("Borrower"),
whose address is 0000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxxxx, XX 00000 and with a
FAX number of ____________________.
1. Definitions. In this Agreement:
"Accounts" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"Account Debtor" is defined in the California Uniform Commercial Code and
shall include any person liable on any Financed Receivable, such as, a guarantor
of the Financed Receivable and any issuer of a letter of credit or banker's
acceptance.
"Adjustments" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"Advance" is defined in Section 2.2.
"Advance Rate" is 80%, net of deferred revenue and offsets related to each
specific Account Debtor, or another percentage as Bank establishes under Section
2.2.
"Affiliate" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"Applicable Rate" is a rate per annum equal to (A) the Prime Rate plus
2.50 percentage points, if CorVu Corporation's Tangible Net Worth is less than
$1 for the prior Reconciliation Period, or (B) the Prime Rate plus 2.00
percentage points, if CorVu Corporation's Tangible Net Worth is greater than $1,
but less than $1,000,000 for the prior Reconciliation Period; or (C) the Prime
Rate plus 1.50 percentage points, if CorVu Corporation's Tangible Net Worth is
greater than $1,000,000 for the prior Reconciliation Period.
"Borrower's Books" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"Code" is the California Uniform Commercial Code.
"Collateral" is attached as Exhibit "A".
"Collateral Handling Fee" is defined in Section 3.5.
"Collections" are all funds received by Bank from or on behalf of an
Account Debtor for Financed Receivables.
"Compliance Certificate" is attached as Exhibit "B".
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"Contingent Obligation" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"Effective Date" is the date in which Bank executes this Agreement.
"Event of Default" is defined in Section 9.
"Facility" is an extension of credit by Bank to Borrower in order to
finance receivables with an aggregate Account Balance not exceeding the Facility
Amount.
"Facility Amount" is $1,000,000.
"Facility Fee" is defined in Section 3.4.
"Facility Period" is the period beginning on this date and continuing
until June 29, 2005, unless the period is terminated sooner by Bank with notice
to Borrower or by Borrower under Section 3.6.
"Finance Charges" is defined in Section 3.2.
"Financed Receivables" are all those accounts, receivables, chattel paper,
instruments, contract rights, documents, general intangibles, letters of credit,
drafts, bankers acceptances, and rights to payment, and all proceeds, including
their proceeds (collectively "receivables"), which Bank finances and make an
Advance. A Financed Receivable stops being a Financed Receivable (but remains
Collateral) when the Advance made for the Financed Receivable has been finally
paid.
"Financed Receivable Balance" is the total outstanding amount, at any
time, of any Financed Receivable.
"Good Faith Deposit" is described in Section 3.9.
"Guarantor" means any guarantor of the Obligations.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"Ineligible Receivable" is any accounts receivable:
(A) that is unpaid (90) calendar days after the invoice date, unless
agreed to otherwise in writing by Bank and Borrower; or
(B) that is owed by an Account Debtor that has filed, or has had filed
against it, any bankruptcy case, assignment for the benefit of
creditors, receivership, or Insolvency Proceeding or who has become
insolvent (as defined in the United States Bankruptcy Code) or who
is generally not paying its debts as they become due; or
(C) for which there has been any breach of warranty or representation in
Section 6 or any breach of any covenant in this Agreement; or
(D) for which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of recoupment,
right of return, warranty claim, or short payment.
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"Insolvency Proceeding" are proceedings by or against any person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"Invoice Transmittal" shows accounts receivable which Bank may finance
and, for each receivable, includes the Account Debtor's, name, address, invoice
amount, invoice date and invoice number and is signed by Borrower's authorized
representative.
"Lockbox" is described in Section 6.2.
"Obligations" are all advances, liabilities, obligations, covenants and
duties owing, arising, due or payable by Borrower to Bank now or later under
this Agreement or any other document, instrument or agreement, account
(including those acquired by assignment) primary or secondary, such as all
Advances, Finance Charges, Administrative Fees, interest, fees, expenses,
professional fees and attorneys' fees or other.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"Prime Rate" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"Reconciliation Day" is the last calendar day of each month.
"Reconciliation Period" is each calendar month.
"Subordinated Debt" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
"Subsidiary" is for any Person, or any other business entity of which more
than 50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Person or one or more Affiliates of the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of
CorVu Corporation and its Subsidiaries minus, (i) any amounts attributable to
(a) goodwill, (b) intangible items such as unamortized debt discount and
expense, Patents, trade and service marks and names, Copyrights and research and
development expenses except prepaid expenses, and (c) reserves not already
deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" is on any day, obligations that should, under GAAP, be
classified as liabilities on Borrower's consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
2. Financing of Accounts Receivable.
2.1. Request for Advances. During the Facility Period, Borrower may offer
accounts receivable to Bank, if there is not an Event of Default. Borrower
will deliver an Invoice Transmittal for each accounts receivable it
offers. Bank may rely on information on or with the Invoice Transmittal.
2.2. Acceptance of Accounts Receivable. Bank is not obligated to finance
any accounts receivable. Bank may approve any Account Debtor's credit
before financing any receivable. When Bank accepts a receivable, it will
pay Borrower the Advance Rate times the face amount of the receivable (the
"Advance"). Bank may, in its discretion, change the percentage
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of the Advance Rate. When Bank makes an Advance, the receivable becomes a
"Financed Receivable." All representations and warranties in Section 6
must be true as of the date of the Invoice Transmittal and of the Advance
and no Event of Default exists would occur as a result of the Advance. The
aggregate amount of all Financed Receivables outstanding at any time may
not exceed the Facility Amount.
3. Collections, Finance Charges, Remittances and Fees. The Obligations shall be
subject to the following fees and Finance Charges. Fees and Finance Charges may,
in Bank's discretion, be charged as an Advance, and shall thereafter accrue fees
and Finance Charges as described below. Bank may, in its discretion, charge fee
and Finance Charges to Borrower's deposit account maintained with Bank.
3.1. Collections. Collections will be credited to the Financed Receivables
Balance, but if there is an Event of Default, Bank may apply Collections
to the Obligation in any order it chooses. If Bank receives a payment for
both Financed Receivable and a non Financed Receivable, the funds will
first be applied to the Financed Receivable and, if there is not an Event
of Default, the excess will be remitted to the Borrower, subject to
Section 3.10.
3.2. Finance Charges. In computing Finance Charges on the Obligations, all
Collections received by Bank shall be deemed applied by Bank on account of
the Obligations 1 Business Day after receipt of the Collections. Borrower
will pay a finance charge (the "Finance Charge") on each Financed
Receivable which is the Applicable Rate divided by 360 multiplied by the
number of days each such Financed Receivable is outstanding multiplied by
the outstanding Financed Receivable Balance for such Financed Receivable.
After an Event of Default, Obligations accrue interest at 5 percent above
the Applicable Rate effective immediately before the Event of Default. The
Finance Charge is payable when the Advance made based on such Financed
Receivable is payable in accordance with Section 4.1 hereof.
3.3. (Intentionally Left Blank)
3.4. Facility Fee. A fully earned, non-refundable facility fee of $8,000
is due upon execution of this Agreement.
3.5. Collateral Handling Fee. (A) If CorVu Corporation's Tangible Net
Worth is less than $1 for the prior Reconciliation Period, Borrower will
pay to Bank a collateral handling fee equal to 0.5% per month of the
outstanding Financed Receivable Balance for each Financed Receivable
outstanding (the "Collateral Handling Fee"), or (B) if CorVu Corporation's
Tangible Net Worth is greater than $1, but less than $1,000,000 for the
prior Reconciliation Period, Borrower's Collateral Handling Fee will be
equal to 0.375%, or (C) if CorVu Corporation's Tangible Net Worth is
greater than $1,000,000 for the prior Reconciliation Period, Borrower's
Collateral Handling Fee will be equal to 0.155%. The Collateral Handling
Fee is payable when the Advance made based on such Financed Receivable is
payable in accordance with Section 4.1 hereof. After an Event of Default,
the Collateral Handling Fee will increase an additional 0.50% effective
immediately before the Event of Default.
3.6. (Intentionally Left Blank)
3.7. Accounting. After each Reconciliation Period, Bank will provide an
accounting of the transactions for that Reconciliation Period, including
the amount of all Financed Receivables, all Collections, Adjustments,
Finance Charges, the Collateral Handling Fee and the Administrative Fee.
If Borrower does not object to the accounting in writing within 30 days it
is considered correct. All Finance Charges and other interest and fees
calculated on the basis of a 360-day year and actual days elapsed.
3.8. Deductions. Bank may deduct fees, finance charges and other amounts
due from any Advances made or Collections received by Bank.
3.9. Good Faith Deposit. Borrower has paid to Bank a Good Faith Deposit of
$2,000 to initiate Banks due diligence review process. Any portion of the
deposit not utilized to pay expenses will be applied to the Facility Fee.
3.10. Account Collection Services. All Borrowers' receivables are to be
paid to the same address/or party and Borrower and Bank must agree on such
address. If Bank collects all receivables and there is not an Event of
Default or an event that with notice or lapse of time will be an Event of
Default, within five (5) days of receipt
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of those collections, Bank will give Borrower, the receivables collections
it receives for receivables other than Financed Receivables and/or amount
in excess of the amount for which Bank has made an Advance to Borrower,
less any amount due to Bank, such as the Finance Charge, Administrative
Fee, Collateral Handling Fee and expenses or otherwise. This Section does
not impose any affirmative duty on Bank to do any act other than to turn
over amounts. All receivables and collections are Collateral and if an
Event of Default occurs, Bank need not remit collections of Collateral and
may apply them to the Obligations.
4. Repayment of Obligations.
4.1. Repayment on Maturity. Borrower will repay each Advance on the
earliest of: (a) the date on which payment of the Financed Receivable with
respect to which the Advance is made, (b) the date on which the Financed
Receivable is no longer an Eligible Account, (c) the date on which any
Adjustment is made to the Financed Receivable (but only to the extent of
the Adjustment if the Financed Receivable remains otherwise an Eligible
Account), (d) the date on which there is a breach of any warranty or
representation set forth in Section 6 or a breach of any covenant in this
Agreement, or (e) the Maturity Date (including any early termination).
Each payment will also include all accrued Finance Charges and Collateral
Handling Fees with respect to such Advance and all other amounts then due
and payable hereunder.
4.2. Repayment on Event of Default. When there is an Event of Default,
Borrower will, if Bank demands (or, in an Event of Default under Section
9(B), immediately without notice or demand from Bank) repay all of the
Advances. The demand may, at Bank's option, include the Advance for each
Financed Receivable then outstanding and all accrued Finance Charges,
Administrative Fees, attorneys and professional fees, court costs and
expenses, and any other Obligations.
5. Power of Attorney. Borrower irrevocably appoints Bank and its successors and
assigns it attorney-in-fact and authorizes Bank, regardless of whether there has
been an Event of Default, to:
(A) Sell, assign, transfer, pledge, compromise, or discharge all or any
part of the Financed Receivables:
(B) Demand, collect, xxx, and give releases to any Account Debtor for
monies due and compromise, prosecute, or defend any action, claim,
case or proceeding about the Financed Receivables, including filing
a claim or voting a claim in any bankruptcy case in Bank's or
Borrower's name, as Bank chooses:
(C) Prepare, file and sign Borrower's name on any notice, claim,
assignment, demand, draft, or notice of or satisfaction of lien or
mechanics' lien or similar document;
(D) Notify all Account Debtors to pay Bank directly;
(E) Receive, open, and dispose of mail addressed to Borrower;
(F) Endorse Borrower's name on check or other instruments;
(G) Execute on Borrower's behalf any instruments, documents, financing
statements to perfect Bank's interests in the Financed Receivables
and Collateral; and
(H) Do all acts and things necessary or expedient.
6. Representations, Warranties and Covenants.
6.1. Representations and Warranties. Borrower represents and warrants for
each Financed Receivable:
(A) It is the owner with legal right to sell, transfer and assign it;
(B) The correct amount is on the Invoice Transmittal and is not
disputed;
(C) Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the Invoice Transmittal date;
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(D) It is based on an actual sale and delivery of goods and/or services
rendered, due to Borrower, it is not past due or in default, has not
been previously sold, assigned, transferred, or pledged and is free
of any liens, security interests and encumbrances;
(E) There are no defenses, offsets, counterclaims or agreements for
which the Account Debtor may claim any deduction or discount;
(F) It reasonably believes no Account Debtor is insolvent or subject to
any Insolvency Proceedings;
(G) It has not filed or had filed against it Insolvency Proceedings and
does not anticipate any filing;
(H) Bank has the right to endorse and/ or require Borrower to endorse
all payments received on Financed Receivables and all proceeds of
Collateral.
(I) No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statement contained in the certificates or
statement not misleading.
6.1.1 Additional Representations and Warranties. Borrower represents and
warrants as follows:
(A) Borrower is duly existing and in good standing in its state of
formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its
ownership of property requires that it be qualified. The execution,
delivery and performance of this Agreement has been duly authorized,
and does not conflict with Borrower's organizational documents, nor
constitute an Event of Default under any material agreement by which
Borrower is bound. Borrower is not in default under any agreement to
which or by which it is bound.
(B) Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material
defects.
(C) Borrower is not an "investment company" or a company "controlled" by
an "investment company" under the Investment Company Act. Borrower
is not engaged as one of its important activities in extending
credit for margin stock (under Regulations G, T and U of the Federal
Reserve Board of Governors). Borrower has complied with the Federal
Fair Labor Standards Act. Borrower has not violated any laws,
ordinances or rules. None of Borrower's properties or assets has
been used by Borrower, to the best of Borrower's knowledge, by
previous persons, in disposing, producing, storing, treating, or
transporting any hazardous substance other than legally. Borrower
has timely filed all required tax returns and paid, or made adequate
provision to pay, all taxes. Borrower has obtained all consents,
approvals and authorizations of, made all declarations or filings
with, and given all notices to, all government authorities that are
necessary to continue its business as currently conducted.
6.2. Affirmative Covenants. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification in
each jurisdiction necessary to Borrower's business or operations.
(B) Give Bank at least 10 days prior written notice of changes to its
name, organization, chief executive office or location of records.
(C) Pay all its taxes including gross payroll, withholding and sales
taxes when due and will deliver satisfactory evidence of payment if
requested.
(D) Upon request, provide a written report within 10 days, if payment of
any Financed Receivable does not occur by its due date and include
the reasons for the delay.
(E) Provide Bank with, as soon as available, but no later than 180 days
after the last day of CorVu Corporation's fiscal year, CorVu
Corporation's audited consolidated financial statements prepared
under GAAP, consistently applied, together with an unqualified
opinion on the financial statements from an independent certified
public accounting firm reasonably acceptable to Bank.
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(F) Execute any further instruments and take further action as Bank
requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
(G) Provide Bank with a Compliance Certificate no later than 30 days
following each Reconciliation Period or as requested by Bank.
(H) Provide Bank with, as soon as available, but no later than 30 days
following each Reconciliation Period, a company prepared balance
sheet and income statement, prepared under GAAP, consistently
applied, covering Borrower's operations during the period together
with an aged listing of accounts receivable and accounts payable.
(I) Immediately notify, transfer and deliver to Bank all collections
Borrower receives for Financed Receivables.
(J) Borrower will remit all payment's for Accounts to the Bank by the
close of business on each Friday along with a detailed cash receipts
journal and shall immediately notify and direct all of the
Borrower's Account Debtor's to make all payment's for Borrower's
Accounts to a lockbox account established with the Bank ("Lockbox")
or to wire transfer payments to a cash collateral account that Bank
controls. It will be considered an immediate Event of Default if the
Lockbox is not set-up and operational within 45 days from the date
of this Agreement.
(K) Borrower will allow Bank to audit Borrower's Collateral, including
but not limited to Borrower's Accounts, at Borrowers expense, no
later than 90 days of the execution of this Agreement and annually
thereafter; provided, however, if an Event of Default has occurred,
Bank may audit Borrower's Collateral, including but not limited to
Borrower's Accounts at Bank's sole discretion and without
notification and authorization from Borrower.
(L) Borrower will maintain its primary operating and deposit accounts
with Bank, which relationship shall include Borrower maintaining
account balances in any accounts with or through Bank representing
at least 80% of all account balances of Borrower at any financial
institution.
6.3. Negative Covenants. Borrower will not do any of the following without
Bank's prior written consent:
(A) Assign, transfer, sell or grant, or permit any lien or security
interest in the Collateral.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral.
(C) Create, incur, assume, or be liable for any indebtedness.
(D) Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of 1940 or
undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Advance
for that purpose; fail to meet the minimum funding requirements of
ERISA, permit a Reportable Event or Prohibited Transaction, as
defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, or
permit any of its subsidiaries to do so.
7. Adjustments. If any Account Debtor asserts a discount, allowance, return,
offset, defense, warranty claim, or the like (an "Adjustment") or if Borrower
breaches any of the representations, warranties or covenants set forth in
Section 6., Borrower will promptly advise Bank. Borrower will resell any
rejected, returned, or recovered personal property for Bank, at Borrower's
expense, and pay proceeds to Bank. While Borrower has returned goods that are
Borrower property, Borrower will segregate and xxxx them "property of Silicon
Valley Bank." Bank owns the Financed Receivables and until receipt of payment,
has the right to take possession of any rejected, returned, or recovered
personal property.
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8. Security Interest. Borrower grants to Bank a continuing security interest in
all presently and later acquired Collateral to secure all Obligations and the
performance of each of Borrower's duties hereunder. Any security interest will
be a first priority security interest in the Collateral.
9. Events of Default. Any one or more of the following is an Event of Default.
(A) Borrower fails to pay any amount owed to Bank when due;
(B) Borrower files or has filed against it any Insolvency Proceedings or
any assignment for the benefit of creditors, or appointment of a
receiver or custodian for any of its assets;
(C) Borrower becomes insolvent or is generally not paying its debts as
they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment attaches to the
Financed Receivables or any Collateral;
(E) Borrower breaches any covenant, agreement, warranty, or
representation is an immediate Event of Default;
(F) Borrower is in default under any document, instrument or agreement
evidencing any debt, obligation or liability in favor of Bank its
affiliates or vendors regardless of whether the debt, obligation or
liability is direct or indirect, primary or secondary, or fixed or
contingent;
(G) An event of default occurs under any Guaranty of the Obligations or
any material provision of any Guaranty is not valid or enforceable
or a Guaranty is repudiated or terminated;
(H) A material default or Event of Default occurs under any agreement
between Borrower and any creditor of Borrower that signed a
subordination agreement with Bank;
(I) Any creditor that has signed a subordination agreement with Bank
breaches any terms of the subordination agreement; or
(J) (i) A material impairment in the perfection or priority of the
Bank's security interest in the Collateral; (ii) a material adverse
change in the business, operations, or conditions (financial or
otherwise) of the Borrower occurs; or (iii) a material impairment of
the prospect of repayment of any portion of the Advances occurs.
10. Remedies.
10.1. Remedies Upon Default. When an Event of Default occurs, (1) Bank may
stop financing receivables or extending credit to Borrower; (2) at Banks
option and on demand, all or a portion of the Obligations or, for to an
Event of Default described in Section 9(B), automatically and without
demand, are due and payable in full; (3) apply to the Obligations any (i)
balances and deposits of Borrower it holds, or (ii) any amount held by
Bank owing to or for the credit or the account of Borrower; and (4) Bank
may exercise all rights and remedies under this Agreement and the law,
including those of a secured party under the Code, power of attorney
rights in Section 5 for the Collateral, and the right to collect, dispose
of, sell, lease, use, and realize upon all Financed Receivables and
Collateral in any commercial manner. Borrower agrees that any notice of
sale required to be given to Borrower is deemed given if at least five
days before the sale may be held.
10.2. Demand Waiver. Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default,
nonpayment at maturity, release, compromise, settlement, extension, or
renewal of accounts, documents, instruments, chattel paper, and guaranties
held by Bank on which Borrower is liable.
10.3. Default Rate. If any amount is not paid when due, the amount bears
interest at the Applicable Rate plus five percent until the earlier of (a)
payment in good funds or (b) entry of a final judgment when the principal
amount of any money judgment will accrue interest at the highest rate
allowed by law.
11. Fees, Costs and Expenses. The Borrower will pay on demand all fees, costs
and expenses (including attorneys' and professionals fees with costs and
expenses) that Bank incurs from: (a) preparing, negotiating, administering, and
enforcing this Agreement or related agreement, including any amendments, waivers
or consents, (b) any litigation or dispute relating to the Financed Receivables,
the Collateral, this Agreement or any other agreement, (c) enforcing any rights
against Borrower or any
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guarantor, or any Account Debtor, (d) protecting or enforcing its interest in
the Financed Receivables or other Collateral, (e) collecting the Financed
Receivables and the Obligations, and (f) any bankruptcy case or insolvency
proceeding involving Borrower, any Financed Receivable, the Collateral, any
Account Debtor, or any Guarantor.
12. Choice of Law, Venue and Jury Trial Waiver. California law governs this
Agreement. Borrower and Bank each submit to the exclusive jurisdiction of the
State and Federal courts in Santa Xxxxx County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
13. Notices. Notices or demands by either party about this Agreement must be in
writing and personally delivered or sent by an overnight delivery service, by
certified mail postage prepaid return receipt requested, or by FAX to the
addresses listed at the beginning of this Agreement. A party may change notice
address by written notice to the other party.
14. General Provisions.
14.1. Successors and Assigns. This Agreement binds and is for the benefit
of successors and permitted assigns of each party. Borrower may not assign
this Agreement or any rights under it without Bank's prior written
consent, which may be granted or withheld in Bank's discretion. Bank may,
without the consent of or notice to Borrower, sell, transfer, or grant
participation in any part of Bank's obligations, rights or benefits under
this Agreement.
14.2. Indemnification. Borrower will indemnify, defend and hold harmless
Bank and its officers, employees, and agents against: (a) obligations,
demands, claims, and liabilities asserted by any other party in connection
with the transactions contemplated by this Agreement; and (b) losses or
expenses incurred, or paid by Bank from or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and
expenses), except for losses caused by Bank's gross negligence or willful
misconduct.
14.3. Time of Essence. Time is of the essence for performance of all
obligations in this Agreement.
14.4. Severability of Provision. Each provision of this Agreement is
severable from every other provision in determining the enforceability of
any provision.
14.5. Amendments in Writing, Integration. All amendments to this Agreement
must be in writing. This Agreement is the entire agreement about this
subject matter and supersedes prior negotiations or agreements.
14.6. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when
executed and delivered are one Agreement.
14.7. Survival. All covenants, representations and warranties made in this
Agreement continue in force while any Financed Receivable amount remains
outstanding. Borrower's indemnification obligations survive until all
statutes of limitations for actions that may be brought against Bank have
run.
14.8. Confidentiality. Bank will use the same degree of care handling
Borrower's confidential information that it uses for its own confidential
information, but may disclose information; (i) to its subsidiaries or
affiliates in connection with their business with Borrower, (ii) to
prospective transferees or purchasers of any interest in the Agreement,
(iii) as required by law, regulation, subpoena, or other order, (iv) as
required in connection with an examination or audit and (v) as it
considers appropriate exercising the remedies under this Agreement.
Confidential information does not include information that is either: (a)
in the public domain or in Bank's possession when disclosed, or becomes
part of the public domain after disclosure to Bank; or (b) disclosed to
Bank by a third party, if Bank does not know that the third party is
prohibited from disclosing the information.
33
14.9. Other Agreements. This Agreement may not adversely affect Banks
rights under any other document or agreement. If there is a conflict
between this Agreement and any agreement between Borrower and Bank, Bank
may determine in its sole discretion which provision applies. Borrower
acknowledges that any security agreements, liens and/or security interests
securing payment of Borrower's Obligations also secure Borrower's
Obligations under this Agreement and are not adversely affected by this
Agreement. Additionally, (a) any Collateral under other agreements or
documents between Borrower and Bank secures Borrowers Obligations under
this Agreement and (b) a default by Borrower under this Agreement is a
default under agreements between Borrower and Bank.
BORROWER: CorVu North America, Inc.
By _______________________________________
Title ____________________________________
BANK: SILICON VALLEY BANK
By________________________________________
Title ____________________________________
Effective Date: __________________________
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EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in
and to the following whether owned now or hereafter arising and whether the
Borrower has rights now or hereafter has rights therein and wherever located:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles (as such definitions may be
amended from time to time according to the Code), now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower (as such definitions may be amended from time
to time according to the Code) whether or not earned by performance, and any and
all credit insurance, insurance (including refund) claims and proceeds,
guaranties, and other security thereof, as well as all merchandise returned to
or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, letter of credit rights, certificates of deposit, instruments
and chattel paper and electronic chattel paper now owned or hereafter acquired
and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the
protection of semiconductor chips, now owned or hereafter acquired; all claims
for damages by way of any past, present and future infringement of any of the
foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
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