EXHIBIT 10.2
EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT
This EXPORT-IMPORT BANK LOAN AND SECURITY AGREEMENT (the "Exim Agreement")
is entered into as of September 26, 1997, by and between SILICON VALLEY BANK
("Bank") and OPEN MARKET, INC.and FOLIO CORPORATION (jointly and severally, the
"Borrower").
RECITALS
A. Borrower and Bank are parties to that certain Loan and Security
Agreement of even date herewith (the "Domestic Agreement"), together with
related documents.
B. Borrower and Bank desire in this Exim Agreement to set forth their
agreement with respect to a working capital facility to be guaranteed by
Export-Import Bank of the United States.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION
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1.1 Definitions. Except as otherwise defined, terms that are
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capitalized in this Exim Agreement shall have the meaning assigned in the
Domestic Loan Documents. As used in this Exim Agreement, the following terms
shall have the following definitions:
"Advances" means any loans or extensions of credit hereunder.
"Borrower Agreement" means the Export-Import Bank of the United
States Working Capital Guarantee Program Borrower Agreement between
Borrower and Bank.
"Borrowing Base" has the meaning set forth in Section 2.1 hereof.
"Domestic Agreement" has the meaning set forth in recital paragraph
A.
"Domestic Loan Documents" means the Domestic Agreement and the
instruments and documents executed in connection with that Agreement.
"Exim Bank" means Export-Import Bank of the United States.
"Exim Bank Expenses" means all: reasonable costs or expenses
(including reasonable attorneys' fees and expenses) incurred in connection
with the preparation, negotiation, and administration of the Loan
Documents, including any costs incurred in relation to opposing or seeking
to obtain relief from any stay or restructuring order prohibiting Bank from
exercising its rights as a secured creditor, foreclosing upon or disposing
of Collateral, or such related matters; and Bank's reasonable attorneys'
fees and expenses incurred in enforcing or defending the Loan Documents,
whether or not suit is brought, unless a final court of competent
jurisdiction finds the Bank acted with gross negligence or willful
misconduct.
"Exim Committed Line" means Five Million Dollars ($5,000,000).
"Exim Eligible Foreign Accounts" means those Accounts payable in
United States Dollars that arise in the ordinary course of Borrower's
business from Borrower's sale of Eligible Foreign Inventory (i) with
respect to which the account debtor is not a resident of the United States;
and (ii) that have been validly assigned and comply with all of Borrower's
representations and warranties to Bank; standards of eligibility may be
fixed and revised from time to time by Bank in Bank's reasonable judgment
and upon
notification thereof to the Borrower in accordance with the provisions
hereof. Exim Eligible Foreign Accounts shall not include the following:
(a) Accounts with a term in excess of one hundred twenty (120)
days;
(b) Accounts that the account debtor has failed to pay within
sixty (60) calendar days of the original due date of the invoice
unless such accounts are insured through Exim Bank export credit
insurance for comprehensive commercial and political risk, or through
Exim Bank approved private insurers for comparable coverage, in which
case ninety (90) calendar days shall apply;
(c) Accounts with respect to an account debtor, fifty percent
(50%) or more of whose Accounts the account debtor has failed to pay
within one hundred twenty (120) days of the original date of invoice;
(d) Accounts evidenced by a letter of credit until the date of
shipment of the items covered by the subject letter of credit;
(e) Accounts with respect to which the account debtor is an
Affiliate of Borrower;
(f) Accounts with respect to which the account debtor is
located in a country in which Exim Bank is legally prohibited from
doing business;
(g) Accounts with respect to which the account debtor is
located in a country in which Exim Bank coverage is not available for
commercial reasons;
(h) Accounts with respect to which Borrower is liable to the
account debtor for goods sold or services rendered by the account
debtor to Borrower, but only to the extent of Borrower's liability to
such account debtor.
(i) Accounts with respect to which the account debtor disputes
liability or makes any claim with respect thereto (but only to the
extent of the amount subject to such dispute or claim), or is subject
to any Insolvency Proceeding, or becomes insolvent, or goes out of
business;
(j) Accounts with respect to an account debtor, including
Subsidiaries and Affiliates, whose total obligations to Borrower
exceed twenty-five percent (25%) of the aggregate dollar amount of all
Accounts, only to the extent such obligations exceed such percentage,
except as approved in writing by Bank;
(k) Accounts generated by the sale of products purchased for
military purposes;
(l) Accounts generated by sales of Inventory which constitutes
defense articles or defense services;
(m) Accounts payable in currency other than Dollars;
(n) Accounts which are due and owing and the collection of
which must be made outside the United States;
(o) Accounts the collection of which Bank or Exim Bank
determines in its reasonable judgment to be doubtful; and
(p) Accounts that are excluded from the Borrowing Base under
the Borrower
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Agreement.
"Exim Guarantee" means that certain Master Guarantee Agreement or
other agreement, as amended from time to time, the terms of which are
incorporated by reference into this Exim Agreement, pursuant to which Exim
Bank guarantees Borrower's obligations under this Exim Agreement.
"Exim Loan Documents" means, collectively, this Exim Agreement, the
Domestic Loan Documents, any note or notes executed by Borrower, and any
other agreement entered into between Borrower and Bank in connection with
this Exim Agreement, all as amended or extended from time to time.
"Exim Maturity Date" means the earliest of (i) the Maturity Date
under the Domestic Loan Documents, or (ii) September 25, 1998.
"Note" is defined in Section 2.1.1.
"Obligations" shall mean the Exim Loan Documents.
2. LOAN AND TERMS OF PAYMENT
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2.1.1 Revolving Advances. Subject to the terms and conditions of this
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Exim Agreement, Bank agrees to make Advances to Borrower in an amount not to
exceed the lesser of the Exim Committed Line or the Borrowing Base. For
purposes of this Exim Agreement "Borrowing Base" shall mean an amount equal to
ninety percent (90%) of the Exim Eligible Foreign Accounts.
To evidence the Advances, Borrower shall execute and deliver to Bank on the
date hereof a promissory note (the "Note") in substantially the form attached
hereto as EXHIBIT B.
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Whenever Borrower desires an Advance, either Borrower will notify Bank by
facsimile transmission or telephone no later than 3:00 p.m. California time, on
the Business Day that the Advance is to be made. Each such notification shall
be promptly confirmed by a Payment/Advance Form in substantially the form of
EXHIBIT C hereto. In addition to the procedure set forth in the preceding
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sentence, Bank is authorized to make Advances under this Exim Agreement, based
upon written instructions received from a Responsible Officer or without
instructions if in Bank's discretion such Advances are necessary to meet
Obligations which have become due and remain unpaid. Bank will credit the
amount of Advances made under this Section 2.1.1 to Borrower's deposit account.
Amounts borrowed pursuant to this Section 2.1.1 may be repaid and re-borrowed at
any time during the term of this Exim Agreement so long as no Event of Default
has occurred and is continuing.
2.1.2 Letters of Credit.
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(a) Subject to the terms and conditions of this Agreement, Bank
agrees to issue or cause to be issued Letters of Credit for the account of
Borrower in an aggregate outstanding face amount not to exceed (i) the lesser of
the Exim Committed Line or the Borrowing Base, whichever is less, minus (ii) the
then outstanding principal balance of the Advances; provided that the face
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amount of outstanding Letters of Credit (including drawn but unreimbursed
Letters of Credit and any Letter of Credit Reserve) shall not in any case exceed
U.S.$2,000,000.00. Each Letter of Credit shall have an expiry date no later than
the Exim Maturity Date. All Letters of Credit shall be, in form and substance,
acceptable to Bank in its sole discretion and shall be subject to the terms and
conditions of Bank's form of standard Application and Letter of Credit
Agreement.
(b) The obligation of Borrower to immediately reimburse Bank for
drawings made under Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement and such Letters of Credit, under all circumstances whatsoever.
Borrower shall indemnify, defend, protect, and hold Bank harmless from any
loss, cost, expense or liability, including, without
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limitation, reasonable attorneys' fees, arising out of or in connection with any
repayment obligation arising under any Letters of Credit.
(c) Borrower may request that Bank issue a Letter of Credit
payable in a currency other than United States Dollars. If a demand for payment
is made under any such Letter of Credit, Bank shall treat such demand as an
Advance to Borrower of the equivalent of the amount thereof (plus cable charges)
in United States currency at the then prevailing rate of exchange in San
Francisco, California, for sales of that other currency for cable transfer to
the country of which it is the currency.
(d) Upon the issuance of any Letter of Credit payable in a
currency other than United States Dollars, Bank shall create a reserve under the
Committed Revolving Line for letters of credit against fluctuations in currency
exchange rates, in an amount equal to ten percent (10%) of the face amount of
such letter of credit. The amount of such reserve may be amended by Bank from
time to time to account for fluctuations in the exchange rate. The availability
of funds under the Exim Committed Line shall be reduced by the amount of such
reserve for so long as such letter of credit remains outstanding.
2.2 Overadvances. If, at any time or for any reason, the amount of
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Obligations pursuant to this Exim Agreement owed by Borrower to Bank pursuant to
Section 2.1 of this Exim Agreement is greater than the lesser of (i) the
Borrowing Base or (ii) the Exim Committed Line, at the option of Bank, Borrower
shall immediately pay to Bank, in cash, the amount of such excess.
2.3 Interest Rates, Payments, and Calculations.
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(a) Interest Rate. Except as specified to the contrary in any Loan
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Document, any Advances under this Exim Agreement shall bear interest, on the
average Daily Balance, at a rate equal to the Prime Rate.
(b) Default Rate. All Obligations shall bear interest, from and
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after the occurrence of an Event of Default, at a rate equal to the lesser of
(i) three (3) percentage points above the rate that applied immediately prior to
the occurrence of the Event of Default, and (ii) the maximum interest rate
allowed by applicable law.
(c) Payments. Interest hereunder shall be due and payable on each
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Payment Date. Bank shall, at its option, charge such interest, all Exim Bank
Expenses, and all Periodic Payments against Borrower's deposit account or
against the Exim Committed Line, in which case those amounts shall thereafter
accrue interest at the rate then applicable hereunder.
(d) Computation. In the event the Prime Rate is changed from time
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to time hereafter, the applicable rate of interest hereunder shall be increased
or decreased contemporaneously with such change by an amount equal to such
change in the Prime Rate. All interest chargeable under the Exim Loan Documents
shall be computed on the basis of a three hundred sixty (360) day year for the
actual number of days elapsed.
2.4 Crediting Payments. The receipt by Bank of any wire transfer of
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funds, check, or other item of payment shall be immediately applied to
conditionally reduce Obligations, but shall not be considered a payment on
account unless such wire transfer is of immediately available federal funds and
is made to the appropriate deposit account of Bank or unless and until such
check or other item of payment is honored when presented for payment.
Notwithstanding anything to the contrary contained herein, any payment (other
than a wire transfer of immediately available funds) received by Bank after 3:00
p.m. California time shall be deemed to have been received by Bank as of the
opening of business on the immediately following Business Day.
2.5 Fees. Borrower shall pay to Bank the following fees:
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(a) Financial Examination and Appraisal Fees. Bank's reasonable
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fees and reasonable out-of-pocket expenses for Bank's initial audit of
Borrower's Accounts and financial analysis and examination
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of Borrower performed from time to time by Bank or its agents;
(b) Exim Fee. A facility fee equal to Seventy-Five Thousand
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Dollars ($75,000), which fee shall be due and fully earned upon the Closing
Date; and
(c) Exim Bank Expenses. On the Closing Date, Exim Bank Expenses
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incurred through the Closing Date and, after the Closing Date, all Exim
Bank Expenses as they become due, if any.
2.6 Term. This Exim Agreement shall become effective once duly executed
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and authorized by Borrower and Bank and shall continue in full force and effect
for a term ending on the Exim Maturity Date, on which date all Obligations shall
become immediately due and payable. Notwithstanding the foregoing, Bank shall
have the right to terminate this Exim Agreement immediately and without notice
upon the occurrence of an Event of Default and Borrower shall have the right to
terminate this Exim Agreement immediately upon payment in full of its
Obligations then outstanding hereunder. Notwithstanding any termination of this
Exim Agreement, all of Bank's security interest in all of the Collateral and all
of the terms and provisions of this Exim Agreement shall continue in full force
and effect until all Obligations have been paid and performed in full, and no
termination shall impair any right or remedy of Bank, nor shall any such
termination relieve Borrower of any Obligation to Bank until all of the
Obligations have been paid and performed in full.
2.7 Use of Proceeds. Borrower will use the proceeds of Advances only
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for the purposes specified in the Borrower Agreement. Borrower shall not use the
proceeds of the Advances for any purpose prohibited by the Borrower Agreement.
2.8 Borrower Liability. Either Borrower may, acting singly, request
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Advances hereunder. Each Borrower hereby appoints the other as agent for the
other for all purposes hereunder, including with respect to requesting Advances
hereunder. Each Borrower hereunder shall be obligated to repay all Advances made
hereunder, regardless of which Borrower actually receives said Advance, as if
each Borrower hereunder directly received all Advances. Each Borrower
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acknowledges that, to the extent the other Borrower has or may have certain
rights of subrogation or reimbursement against the other for claims arising out
of this Agreement, that those rights are hereby waived.
2.9 Subrogation and Similar Rights. Notwithstanding any other provision
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of this Agreement or other related document, each Borrower irrevocably waives
all rights that it may have at law or in equity (including, without limitation,
any law subrogating the Borrower to the rights of Lender under the Loan
Documents) to seek contribution, indemnification or any other form of
reimbursement from any other Borrower, or any other Person now or hereafter
primarily or secondarily liable for any of the Obligations, for any payment made
by the borrower with respect to the Obligations in connection with the Loan
Documents or otherwise and all rights that it might have to benefit from, or to
participate in, any security for the Obligations as a result of any payment made
by the Borrower with respect to the Obligations in connection with the Loan
documents or otherwise. Any agreement providing for indemnification,
reimbursement or any other arrangement prohibited under this Section shall be
null and void. If any payment is made to a Borrower in contravention of this
Section, such Borrower shal hold such payment in trust for Bank and such payment
shall be promptly delivered to Bank for application to the Obligations, whether
matured or unmatured.
3. CONDITIONS OF LOANS
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3.1 Conditions Precedent to all Advances. The obligation of Bank to
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make each Advance, including the initial Advance, is further subject to the
following conditions:
(a) timely receipt by Bank of the Payment/Advance Form as
provided in Section 2.1;
(b) timely receipt by Bank of a copy of the executed firm written
export purchase order relating to the requested Advance, the payment terms
of which shall be acceptable to Bank (the "Export
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Order");
(c) timely receipt by Bank of an Export Order and Borrowing Base
Certificate as defined in the Borrower Agreement;
(d) the Exim Guarantee shall be in full force and effect; and
(e) except as otherwise disclosed to the Bank, the
representations and warranties contained in Section 5 hereof shall be true
and accurate in all material respects on and as of the date of such
Payment/Advance Form and on the effective date of each Advance as though
made at and as of each such date (except to the extent they relate
specifically to an earlier date, in which case such representations and
warranties shall continue to have been true and accurate as of such date),
and no Potential Event of Default or Event of Default shall have occurred
and be continuing, or would result from such Advance.
The making of each Advance shall be deemed to be a representation and
warranty by Borrower on the date of such Advance as to the accuracy of the facts
referred to in subsection (e) of this Section 3.1.
4. CREATION OF SECURITY INTEREST
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4.1 Grant of Security Interest. Each Borrower, as its interest may
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appear, hereby grants to Bank a continuing security interest in all presently
existing and hereafter acquired or arising Collateral in order to secure prompt
repayment of any and all Obligations and in order to secure prompt performance
by Borrower of each of its covenants and duties under the Exim Loan Documents.
4.2 Delivery of Additional Documentation Required. Borrower shall from
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time to time execute and deliver to Bank, at the reasonable request of bank, all
financing statements and other documents that Bank may reasonably request, in
form satisfactory to Bank, to perfect and continue perfected Bank's security
interests in the Collateral and in order to fully consummate all of the
transactions contemplated under the Exim Loan Documents.
4.3 Power of Attorney. Effective only upon the occurrence and during
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the continuance of an Event of Default, Borrower hereby irrevocably appoints
Bank (and any of Bank's designated officers, or employees) as Borrower's true
and lawful attorney, with power to: (a) send requests for verification of
Accounts; (b) endorse Borrower's name on any checks or other forms of payment or
security that may come into Bank's possession; (c) sign the name of Borrower on
any of the documents described in Section 4.2 (regardless of whether an Event of
Default has occurred); (d) sign Borrower's name on any invoice or xxxx of lading
relating to any Account, drafts against account debtors, schedules and
assignments of Accounts, verifications of Accounts, and notices to account
debtors; (e) make, settle, and adjust all claims under and decisions with
respect to Borrower's policies of insurance; and (f) settle and adjust disputes
and claims respecting the accounts directly with account debtors, for amounts
and upon terms which Bank determines to be reasonable. The appointment of Bank
as Borrower's attorney-in-fact, and each of Bank's rights and powers, being
coupled with an interest, is irrevocable until all of the Obligations have been
fully repaid and Bank's obligation to provide Advances hereunder is terminated.
4.4 Right to Inspect. Each of Bank and Exim Bank (through any of their
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respective officers, employees, or agents) shall have the right, upon reasonable
prior notice, from time to time during Borrower's usual business hours, without
causing any disruptions of Borrower's operations (prior to an Event of Default)
to inspect Borrower's Books, facilities and activities, and to check, test, and
appraise the Collateral in order to verify Borrower's financial condition or the
amount, condition of, or any other matter relating to, the Collateral. Bank
shall conduct semi-annual accounts receivable audits, the results of which
audits shall be satisfactory to Bank. Borrower will cause its officers and
employees to give their full cooperation and assistance in connection therewith.
5. REPRESENTATIONS AND WARRANTIES
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Borrower represents, warrants and covenants as follows:
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5.1 Domestic Loan Documents. The representations and warranties
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contained in the Domestic Loan Documents, which are incorporated into this Exim
Agreement, are true and correct.
6. AFFIRMATIVE COVENANTS
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Borrower covenants and agrees that, until payment in full of the
Obligations, each Borrower shall do all of the following:
6.1 Domestic Loan Documents. Borrower shall comply in all respects with
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the provisions of the Domestic Loan Documents, which provisions are incorporated
into this Exim Agreement.
6.2 Terms of Sale. Borrower shall cause all sales of products upon
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which Advances are based either to be (i) supported by one or more irrevocable
letters of credit in an amount and of a tenor, naming a beneficiary and issued
by a financial institution acceptable to Bank or (ii) on open account to
creditworthy buyers that have been preapproved in writing by Bank and Exim Bank.
6.3 Borrower Agreement. Borrower shall comply with all of the terms of
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the Borrower Agreement. In the event of any conflict or inconsistency between
any provision contained in the Borrower Agreement with any provision contained
in this Exim Agreement, the more strict provision, with respect to Borrower,
shall control.
6.4 Notice in Event of Filing of Action for Debtor's Relief. Borrower
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shall notify Bank in writing within five (5) days of the occurrence of any of
the following: (1) Borrower begins or consents in any manner to any proceeding
or arrangement for its liquidation in whole or in part or to any other
proceeding or arrangement whereby any of its assets are subject generally to the
payment of its liabilities or whereby any receiver, trustee, liquidator or the
like is appointed for it or any substantial part of its assets (including
without limitation the filing by Borrower of a petition for appointment as
debtor-in-possession under Title 11 of the U.S. Code); (2) Borrower fails to
obtain the dismissal or stay on appeal within thirty (30) calendar days of the
commencement of any proceeding arrangement referred to in (1) above; (3)
Borrower begins any other procedure for the relief of financially distressed or
insolvent debtors, or such procedure has been commenced against it, whether
voluntarily or involuntarily, and such procedure has not been effectively
terminated, dismissed or stayed within thirty (30) calendar days after the
commencement thereof, or (4) Borrower begins any procedure for its dissolution,
or a procedure therefor has been commenced against it.
6.5 Payment in Dollars. Borrower shall require payment in United States
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Dollars for the products, unless Exim Bank otherwise agrees in writing.
6.6 Further Assurances. At any time and from time to time Borrower
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shall execute and deliver such further instruments and take such further action
as may reasonably be requested by Bank to effect the purposes of this Exim
Agreement.
7. NEGATIVE COVENANTS
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Each Borrower covenants and agrees that so long as any credit hereunder
shall be available and until payment in full of the Obligations, neither
Borrower will do any of the following, or enter into any agreement to do any of
the following:
7.1 Domestic Loan Documents. Violate or otherwise fail to comply with
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any provisions of the Domestic Loan Documents, which provisions are incorporated
into this Exim Agreement.
7.2 Loans to Shareholders or Affiliates. Without Exim Bank's prior
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written consent, make any loans to any shareholder or entity affiliated with
Borrower. As used in this Section 7.2, the term "loan" does not include salary,
rent paid to an affiliated entity owned by the shareholders, or to other
expenses incurred in the ordinary
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course of Borrower's business.
7.3 Borrower Agreement. Violate or otherwise fail to comply with any
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provision of the Borrower Agreement.
7.4 Exim Guarantee. Take any action, or permit any action to be taken,
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that causes or, with the passage of time, could reasonably be expected to cause,
the Exim Guarantee to cease to be in full force and effect.
8. EVENTS OF DEFAULT
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Any one or more of the following events with respect to either Borrower
shall constitute an Event of Default by Borrower under this Exim Agreement:
8.1 Payment Default. If Borrower fails to pay the principal of, or any
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interest on, any Advances when due and payable; or fails to pay any portion of
any other Obligations not constituting such principal or interest, including
without limitation Exim Bank Expenses (or any interest but for the provision of
the United States Bankruptcy Code, would have occurred on any accounts), within
thirty (30) days of receipt by Borrower of an invoice therefor;
8.2 Covenant Default; Cross Default. If Borrower fails or neglects to
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perform, keep, or observe any material term, provision, condition, covenant, or
agreement contained in this Exim Agreement, in any of the Domestic Loan
Documents, the Borrower Agreement or the Exim Loan Documents, or an Event of
Default occurs under any of the Domestic Loan Documents or the Borrower
Agreement; or
8.3 Exim Guarantee. If the Exim Guarantee ceases for any reason to
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be in full force and effect, or if the Exim Bank declares the Exim Guarantee
void or revokes or purports to revoke any obligations under the Exim Guarantee.
9. BANK'S RIGHTS AND REMEDIES
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9.1 Rights and Remedies. Upon the occurrence of an Event of Default,
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Bank may, at its election, without notice and without demand, do any one or more
of the following:
(a) Declares all Obligations, whether evidenced by this Exim
Agreement, or by any of the other Exim Loan Documents, immediately due and
payable;
(b) Cease advancing money or extending credit to or for the
benefit of Borrower under this Exim Agreement or under any other agreement
between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account
debtors for amounts, upon terms and in whatever order that Bank reasonably
considers advisable;
(d) Notify customers of Borrower or other third parties to pay
amounts owing to Borrower directly to the Bank;
(e) Without notice to or demand upon Borrower, make such payments
and do such acts as Bank considers necessary or reasonable to protect its
security interest in the Collateral. Borrower agrees to assemble the
Collateral if Bank so requires, and to make the Collateral available to
Bank as Bank may designate. Borrower authorizes Bank to enter the premises
where the Collateral is located, to take and maintain possession of the
Collateral, or any part of it, and to pay, purchase, contest, or compromise
any encumbrance, charge, or lien which in Bank's determination appears to
be prior or superior to its security interest and to pay all expenses
incurred in connection therewith. With respect to any of Borrower's owned
premises, Borrower hereby grants Bank a license to enter into possession of
such premises and to occupy the same, without charge, in order to exercise
any of Bank's rights or remedies provided herein, at law, in equity, or
otherwise;
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(f) Set off and apply to the Obligations any and all (i) balances
and deposits of Borrower held by Bank, or (ii) indebtedness at any time
owing to or for the credit or the account of Borrower held by Bank;
(g) Ship, reclaim, recover, store, finish, maintain, repair,
prepare for sale, advertise for sale, and sell (in the manner provided for
herein) the Collateral. Bank is hereby granted a license or other right,
solely pursuant to the provisions of this Section 9.1, to use, without
charge, Borrower's labels, patents, copyrights, rights of use of any name,
trade secrets, trade names, trademarks, service marks, and advertising
matter, or any property of a similar nature, as it pertains to the
Collateral, in completing production of, advertising for sale, and selling
any Collateral and, in connection with Bank's exercise of its rights under
this Section 9.1, Borrower's rights under all licenses and all franchise
agreements shall inure to Bank's benefit;
(h) Sell the Collateral at either a public or private sale, or
both, by way of one or more contracts or transactions, for cash or on
terms, in such manner and at such places (including Borrower's premises) as
Bank determines is commercially reasonable;
(i) Bank may credit bid and purchase at any public sale; and
(j) Any deficiency that exists after disposition of the
Collateral as provided above will be paid immediately by Borrower.
9.2 Exim Direction. Upon the occurrence of an Event of Default,
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Exim Bank shall have a right to: (i) direct Bank to exercise the remedies
specified in Section 9.1 and (ii) request that Bank accelerate the maturity of
any other loans to Borrower as to which Bank has a right to accelerate.
9.3 Exim Notification. Bank shall have the right to immediately notify
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Exim Bank in writing if it has knowledge of the occurrence of any of the
following events: (1) any failure to pay any amount due under this Loan Exim
Agreement or the Note; (2) the Borrowing Base is less than the sum of
outstanding Advances hereunder; (3) any failure to pay when due any amount
payable to Bank by the Borrower under any loan(s) extended by Bank to Borrower;
(4) the filing of an action for debtor's relief by, against, or on behalf of
Borrower; or (5) any threatened or pending material litigation against Borrower,
or any material dispute involving Borrower.
In the event that it sends such a notification to Exim Bank, Bank shall
have the right to thereafter send Exim Bank a written report on the status of
the events covered by said notification on each Business Day which occurs every
thirty (30) calendar days after the date of said notification, until such time
as Bank files a claim with Exim Bank or said default or other events have been
cured. Bank shall not have any obligation to make any Advances following said
notification to Exim Bank, unless Exim Bank gives its written approval thereto.
If directed to do so by Exim Bank, Bank shall have a right promptly to exercise
any rights it may have against Borrower to demand the immediate repayment of all
amounts outstanding under the Exim Loan Documents.
9.4 Remedies Cumulative. Bank's rights and remedies under this Exim
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Agreement, the Exim Loan Documents, the Domestic Loan Documents and all other
agreements shall be cumulative. Bank shall have all other rights and remedies
not inconsistent herewith as provided under the Code, by law, or in equity. No
exercise by Bank of one right or remedy shall be deemed an election, and no
waiver by Bank of any Event of Default on Borrower's part shall be deemed a
continuing waiver. No delay by Bank shall constitute a waiver, election, or
acquiescence by it.
10. WAIVERS; INDEMNIFICATION
------------------------
10.1 Demand; Protest. Except as otherwise set forth herein, Borrower
---------------
waives demand, protest, notice of protest, notice of dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees at any time held by Bank on which
Borrower may in any way be liable.
10.2 Bank's Liability for Inventory. Bank shall not in any way or manner
------------------------------
be liable or responsible for: (a) the safekeeping of the Collateral; (b) any
loss or damage thereto occurring or arising in any manner or fashion
-9-
from any cause; (c) any diminution in the value thereof; or (d) any act or
default of any carrier, warehouseman, bailee, forwarding agency, or other person
whomsoever. All risk of loss, damage or destruction of the Collateral shall be
borne by Borrower.
10.3 Indemnification. Borrower agrees to defend, indemnify and hold
---------------
harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Exim Agreement,
and (b) all losses or Exim Bank Expenses in any way suffered, incurred, or paid
by Bank as a result of or in any way arising out of, following, or consequential
to transactions between Bank and Borrower whether under this Exim Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
11. NOTICES
-------
Unless otherwise provided in this Exim Agreement, all notices or demands by
any party relating to this Exim Agreement or any other agreement entered into in
connection herewith shall be in writing and (except for financial statements and
other informational documents which may be sent by first-class mail, postage
prepaid) shall be personally delivered or sent by certified mail, postage
prepaid, return receipt requested, or by telefacsimile to Borrower or to Bank,
as the case may be, at the address set forth in the Domestic Loan Documents.
The parties hereto may change the address at which they are to receive notices
hereunder, by notice in writing in the foregoing manner given to the other.
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
------------------------------------------
The law of the Commonwealth of Massachusetts shall apply to this Agreement.
BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT,
OR PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION
OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY, CALIFORNIA.
BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH
PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
13. GENERAL PROVISIONS
------------------
13.1 Successors and Assigns. This Exim Agreement shall bind and inure to
----------------------
the benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Exim Agreement nor any rights
hereunder may be assigned by Borrower without Bank's prior written consent,
which consent may be granted or withheld in Bank's sole discretion. Bank shall
have the right without the consent of or notice to Borrower to sell, transfer,
negotiate, or grant participations in all or any part of, or any interest in
Bank's rights and benefits hereunder.
13.2 Time of Essence. Time is of the essence for the performance of all
---------------
obligations set forth in this Exim Agreement.
13.3 Severability of Provisions. Each provision of this Exim Agreement
--------------------------
shall be severable from every
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other provision of this Exim Agreement for the purpose of determining the legal
enforceability of any specific provision.
13.4 Amendments in Writing. This Exim Agreement cannot be changed or
---------------------
terminated orally. Without the prior written consent of Exim Bank, no material
amendment of or deviation from the terms of this Exim Agreement or the Note
shall be made that would adversely affect the interests of Exim Bank under the
Exim Guarantee, including without limitation the rescheduling of any payment
terms provided for in this Exim Agreement. All prior agreements,
understandings, representations, warranties, and negotiations between the
parties hereto with respect to the subject matter of this Exim Agreement, if
any, are merged into this Exim Agreement.
13.5 Counterparts. This Exim Agreement may be executed in any number of
------------
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Exim
Agreement.
13.6 Survival. All covenants, representations and warranties made in
--------
this Exim Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Borrower to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in Section 10.3 shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run.
13.7 Countersignature. This Agreement shall become effective only when
----------------
it shall have been executed by Borrower and Bank (provided, however, in no event
shall this Agreement become effective until signed by an officer of Bank in
California).
IN WITNESS WHEREOF, the parties hereto have caused this Exim Agreement to
be executed as of the date first above written.
OPEN MARKET, INC.
By: /s/ Xxxxxx X. Xxxxxx
___________________________________
Name: Xxxxxx X. Xxxxxx
___________________________________
Title: Senior Vice President & Chief
Financial Officer
___________________________________
FOLIO CORPORATION
By: /s/ Xxxxx X. XxXxxx
___________________________________
Name: Xxxxx X. XxXxxx
___________________________________
Title: Vice President Finance &
Treasurer
___________________________________
SILICON VALLEY BANK, d/b/a
SILICON VALLEY EAST
By:
___________________________________
Name:
___________________________________
Title:
___________________________________
-00-
XXXXXXX XXXXXX XXXX
By: /s/ Xxxxxxx Xxxxx
_______________________________________
Name: Xxxxxxx Xxxxx
_____________________________________
Title: Senior Vice President
_____________________________________
(Signed in Santa Xxxxx County, California)
-12-
EXHIBIT A
---------
(THIS IS NOT AN ALL ASSETS SECURITY AGREEMENT)
The Collateral shall consist of all right, title and interest of Borrower
in and to the following:
(a) 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, whether or not earned
by performance, and any and all credit insurance, guaranties, and other
security therefor, as well as all merchandise returned to or reclaimed by
Borrower;
(b) All proceeds, documents, cash, deposit accounts, securities,
investment property, letters of credit, certificates of deposit,
instruments and chattel paper now owned or hereafter acquired and
Borrower's Books relating to the foregoing.
-13-
EXHIBIT B
---------
Revolving Promissory Note
(Export-Import Line)
$5,000,000.00 September 26, 1997
FOR VALUE RECEIVED, the undersigned (the "Borrower"), promises to pay to
the order of Silicon Valley Bank ("Bank"), at such place as the holder hereof
may designate, in lawful money of the United States of America, the aggregate
unpaid principal amount of all advances ("Advances") made by Bank to Borrower,
up to a maximum principal amount of Five Million Dollars ($5,000,000), plus
interest on the aggregate unpaid principal amount of such Advances, at the rates
and in accordance with the terms of the Borrower Agreement between Borrower and
Bank of even date herewith, as amended from time to time (the "Loan Agreement")
on the first calendar day of each month after an Advance has been made. The
entire principal amount and all accrued interest shall be due and payable on
September 25, 1998, or on such earlier date, as provided for in the Loan
Agreement.
Borrower irrevocably waives the right to direct the application of any and
all payments at any time hereafter received by Bank from or on behalf of
Borrower, and Borrower irrevocably agrees that Bank shall have the continuing
exclusive right to apply any and all such payments against the then due and
owing obligations of Borrower as Bank may deem advisable. In the absence of a
specific determination by Bank with respect thereto, all payments shall be
applied in the following order: (a) then due and payable fees and expenses; (b)
then due and payable interest payments and mandatory prepayments; and (c) then
due and payable principal payments and optional prepayments.
Bank is hereby authorized by Borrower to endorse on Bank's books and
records each Advance made by Bank under this Note and the amount of each payment
or prepayment of principal of each such Advance received by Bank; it being
understood, however, that failure to make any such endorsement (or any errors in
notation) shall not affect the obligations of Borrower with respect to Advances
made hereunder, and payments of principal by Borrower shall be credited to
Borrower notwithstanding the failure to make a notation (or any errors in
notation) thereof on such books and records.
Borrower promises to pay Bank all reasonable costs and reasonable expenses
including all reasonable attorneys' fees, incurred in such collection or in any
suit or action to collect this Note or in any appeal thereof, unless a final
court of competent jurisdiction finds that the Bank acted with gross negligence
or willful misconduct. Borrower waives presentment, demand, protest, notice of
protest, notice of dishonor, notice of nonpayment, and any and all other notices
and demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note, as well as any applicable statute of limitations. No
delay by Bank in exercising any power or right hereunder shall operate as a
waiver of any power or right. Time is of the essence as to all obligations
hereunder.
This Note is issued pursuant to the Loan Agreement, which shall govern the
rights and obligations of Borrower with respect to all obligations hereunder.
The law of the Commonwealth of Massachusetts shall apply to this Agreement.
BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT,
OR PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION
OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY, CALIFORNIA.
BORROWER WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY OF THE
TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. BORROWER
-14-
RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. BORROWER REPRESENTS AND WARRANTS
THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL.
OPEN MARKET, INC.
By: ______________________________________
Name: _____________________________________
Title:
_____________________________________
FOLIO CORPORATION
By: ______________________________________
Name: _____________________________________
Title:
_____________________________________
-15-
EXHIBIT C
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS
3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE: _____________________________
================================================================================
FROM:___________________________________________________________________________
CLIENT NAME (BORROWER)
REQUESTED BY:___________________________________________________________________
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE: __________________________________________________________
PHONE
NUMBER: ________________________________________________________________________
FROM ACCOUNT #_________________________ TO ACCOUNT#_____________________________
REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT
-------------------------- ---------------------
PRINCIPAL INCREASE (ADVANCE) $_____________________________________
PRINCIPAL PAYMENT (ONLY) $_____________________________________
INTEREST PAYMENT (ONLY) $_____________________________________
PRINCIPAL AND INTEREST (PAYMENT) $_____________________________________
OTHER INSTRUCTIONS: ____________________________________________________________
________________________________________________________________________________
All representations and warranties of Borrower stated in the Loan Agreement
are true, correct and complete in all material respects as of the date of the
telephone request for and Advance confirmed by this Borrowing Certificate;
provided, however, that those representations and warranties expressly referring
to another date shall be true, correct and complete in all material respects as
of such date.
================================================================================
FAX#: (000) 000-0000 TIME: ______________________
BANK USE ONLY:
TELEPHONE REQUEST:
-----------------
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
_______________________________________ ___________________________________
Authorized Requester Phone #
_______________________________________ ___________________________________
Received by (Bank) Phone #
___________________________________
Authorized Signature (Bank)
EXHIBIT D
BORROWING BASE CERTIFICATE
-16-
COLLATERAL SCHEDULE
(FOREIGN A/R LINE OF CREDIT)
________________________________________________________________________________
Borrower: Open Market, Inc. Lender: Silicon Valley Bank
000 Xxxxx Xxxxxx 0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Commitment Amount: $5,000,000.00
________________________________________________________________________________
FOREIGN ACCOUNTS RECEIVABLE FROM EXPORT ACTIVITIES
1. Accounts Receivable Book Value as of __________________ $__________
2. Additions (please explain on reverse) $__________
3. TOTAL FOREIGN ACCOUNTS RECEIVABLE $__________
ACCOUNTS RECEIVABLE DEDUCTIONS
4. Term in excess of 120 days $__________
5. Amounts over 120 days $__________
6. Balance of 50% over 120 day accounts $__________
7. Excess 25% Concentration $__________
8. Credit Balances over 120 days $__________
9. Accounts not payable in the U.S. Dollars or payable
in other than U.S. Dollars $__________
10. Governmental and Military Accounts $__________
11. Contra Accounts $__________
12. Promotion, Demo or Consignment Accounts $__________
13. Intercompany/Employee and Affiliate Accounts $__________
14. Accounts in the form of L/Cs, if subject items have
not yet been shipped by Borrower $__________
15. Accounts arising from Inventory not originally located
in and shipped from the U.S. $__________
16. Accounts arising from the sale of defense articles or items $__________
17. Accounts of buyers located in or from countries in which
shipment is prohibited or no coverage available $__________
18. Amounts due and collectable outside U.S. $__________
19. Other exclusions $__________
20. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $__________
21. Eligible Accounts (No. 3 - No. 20) $__________
22. Loan Value of Accounts (90%-Advance) $__________
BALANCES
23. Maximum Loan Amount $__________
24. Total Available $__________
25. Present balance owing on Line of Credit $__________
26. Outstanding under Sublimits $__________
27. RESERVE POSITION (No. 24 - (No. 25 + No. 26)) $__________
The undersigned represents and warrants that the foregoing is true, complete and
correct, and that the information reflected in this Collateral Schedule complies
with the representations and warranties set forth in the Borrower Agreement,
executed by Borrower and acknowledged by Lender, and the Export-Import Bank Loan
and Security Agreement, executed by Borrower and acknowledged by Lender dated
September 26, 1997, as may be amended from time to time, as if all
representations and warranties were made as of the date hereof, and that
Borrower is, and shall remain, in full compliance with its agreements,
covenants, and obligations under such agreement. Such
-17-
representations and warranties include, without limitation, the following:
Borrower is using disbursements only for the purpose of enabling Borrower to
finance the cost of manufacturing, producing, purchasing or selling items
intended for export. Borrower is not using disbursements for the purpose of:
(a) servicing any of Borrower's unrelated pre-existing or future indebtedness;
(b) acquiring fixed assets or capital goods for the use of Borrower's business;
(c) acquiring, equipping, equipping or renting commercial space outside the
United States; (d) supporting research and development; (e) paying salaries of
non-U.S. citizens or non-U.S. permanent residents who are located in the offices
of the United States; or (f) serving as a retainage or warranty bond.
Additionally, disbursements are not being used to finance the manufacture,
purchase or sale of any of the following: (a) items to be sold to a buyer
located in a country in which the Export Import Bank of the United States is
legally prohibited from doing business; (b) that part of the cost of the items
which is not U.S. Content unless such part is not greater than fifty percent
(50%) of the cost of the items and is incorporated into the items in the United
States; (c) defense articles or defense services or items directly or indirectly
destined for use by military organizations designed primarily for military use
(regardless of the nature or actual use of the items); or (d) any items to be
used in the construction, alteration, operation or maintenance of nuclear power,
enrichment, reprocessing, research or heavy water production facilities.
Sincerely,
Open Market, Inc.
By:___________________________________
Name:_________________________________
Chief Financial Officer
Date:_________________________________
Folio Corporation
By:___________________________________
Name:_________________________________
Chief Financial Officer
--------------------------------
BANK USE ONLY
RECEIVED BY:____________________
DATE:________________
VERIFIED BY:____________________
Date:___________________________
--------------------------------
-18-
