Silicon Valley Bank Santa Clara, CA 95054
Exhibit 99.3
Silicon Valley Bank
0000 Xxxxxx Xxxxx/XX 000
Xxxxx Xxxxx, XX 00000
(000) 000-0000 – Fax (000) 000-0000
This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the “Agreement”), dated as of July 1, 2002, is entered into between
Silicon Valley Bank, (“Buyer”) and Deltagen, Inc., a Delaware corporation, (“Seller”), with its chief executive office at:
| Street Address: |
000 Xxx Xxxx | |
| Xxxx: |
Xxxxxxx Xxxx | |
| Xxxxxx: |
San Mateo | |
| State: |
California | |
| Zip code: |
94063 | |
| Fax: |
(000) 000-0000 |
1. Definitions. In this Agreement:
1.1 “Payment” is when Buyer has received payments equal to the Total Purchased Receivables.
1.2 “Purchased Receivables” is all accounts, receivables, chattel paper, instruments, contract rights, documents, general intangibles, letters of credit, drafts,
bankers acceptances other rights to payment and all proceeds arising from the invoices and other agreements on the Schedule. “Related Property” is all returned or rejected goods connected with the Purchased Receivables or books and records
about the Purchased Receivables or returned or rejected goods; or proceeds from voluntary or involuntary dispositions, including insurance proceeds.
1.3 “Schedule” is the attached schedule showing the: Purchase Date, Due Date, Total Purchased Receivables, Discount Rate, Purchase Price, Administrative Fee and
Interest Reserve amount.
2. Purchase and Sale of Receivables.
2.1 Sale and Purchase. On the Purchase Date, Seller sells and Buyer buys
Seller’s right, title, and interest (but none of Sellers obligations) to payment from any person liable on a Purchased Receivable, (“Account Debtors”).
Each purchase and sale is at Buyer’s and Seller’s discretion. Buyer will not (i) pay Seller an aggregate outstanding amount exceeding $5,000,000 or (ii) buy any
Purchased Receivable after June 30, 2003 (the “Maturity Date”). Each purchase and sale will be on an assignment form acceptable to Buyer. Seller shall deliver to Buyer at least two business days prior to any proposed purchase, a schedule
of the proposed Purchased Receivables together with all associated invoices and supporting documentation as Buyer may require.
2.2 Payment of Purchase Price and Late Payment.
(a) Payment of Purchase Price. For each Purchased Receivable, Buyer will pay Seller, on the Purchase Date, the Purchase Price, less the Administrative Fee and legal fees (if any).
(b) Late Payment. If Payment is made after the Due Date, as listed on the Schedule, then on the earlier of Payment
or 90 days, Seller will also pay Buyer the product of the Discount Rate and the
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average daily balance of the unpaid Purchased Receivable multiplied by the number of days between the scheduled payment date or the earlier of
the date of actual payment or 90 days after the scheduled payment date, divided by 360.
2.3 Seller may not sell or convey any interest in Related Property without Buyer’s prior written consent. Seller will sign UCC financing statements and any other instruments or documents to evidence,
perfect or protect Buyer’s interests in the Purchased Receivables and Related Property. Seller will deliver to Buyer all original instruments, chattel paper and documents about Purchased Receivables and Related Property.
3. Collections, Payments and Remittances.
3.1 Application of Payments. All payments for any Purchased Receivable, received by Seller or Buyer, are
Buyer’s property.
3.2 Collection by Seller.
(a) Buyer appoints Seller its attorney-in-fact to receive payments and enforce its rights and designates Seller
it’s assignee for collection. Seller will use diligence and commercially reasonable means to collect Purchased Receivables. Buyer may revoke these appointments at any time.
(b) Seller will begin legal proceedings about Purchased Receivables in its name (as Buyer’s assignee for collection or enforcement) or, with
Buyer’s prior written consent, in Buyer’s name. Seller will not make Buyer party to any litigation or arbitration without Buyer’s written consent.
(c) Seller will hold in trust for and give Buyer: (i) all payments made by Account Debtors, and (ii) all instruments, chattel paper and other
proceeds of the Purchased Receivables.
(d) Unless an Event of Repurchase occurs and
continues Seller will remit payments to Buyer on the last business day of each week (“Settlement Date”) starting the week after the Purchase Date. On each Settlement Date Seller will deliver a report acceptable to Buyer of account activity
(including dates and amounts of payments) and changes for each Purchased Receivable.
3.3 No Obligation to Take Action. Buyer has a right, but no obligation, to perform Seller’s obligations or to take action on any Purchased Receivable (including on defaulted
Purchased Receivables).
4. Non-Recourse; Repurchase Obligations.
4.1 Non-Recourse and Seller’s Agreement to Repurchase. Buyer acquires
Purchased Receivables without recourse, except Seller will, at Buyer’s option, repurchase from Buyer any Purchased Receivable for a purchase price equal to the unpaid portion of any Purchased Receivable:
(a) For which there has been any breach of warranty, representation or covenant in this Agreement; or
(b) For which the Account Debtor asserts any discount, allowance, return, dispute, defense, right of recoupment, right of return,
warranty claim, or short payment.
Seller will reimburse Buyer for Buyer’s reasonable attorneys’ and professional fees and
expenses and all court costs for collecting Purchased Receivables and/or enforcing its rights under this Agreement.
4.2 Payment to Buyer. Seller will pay Buyer in immediately available funds.
4.3 Late Payment. If Payment is made after the Due Date, as listed on the Schedule, then on the earlier of Payment or 90 days, Seller will also pay
Buyer the product of the Discount Rate and the average daily
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balance of the unpaid Purchased Receivable multiplied by the number of days between the scheduled payment date or the earlier of the date of
actual payment or 90 days after the scheduled payment date, divided by 360.
5. Representations, Warranties and Covenants.
5.1 Purchased Receivables – Warranties, Representations and Covenants. Seller represents, warrants and covenants for each Purchased Receivable:
(a) It is the owner with legal right to sell, transfer and assign it;
(b) The correct amount is on the Schedule and is not disputed;
(c) No payment is contingent on any obligation or contract, and it has fulfilled all its obligations as of the
Purchase Date;
(d) It is based on actual sale and delivery of goods and/or services
rendered, due no later than its Due Date and owing to Seller, 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 in which the Account Debtor may claim any
deduction or discount;
(f) It reasonably believes no Account Debtor is insolvent as
defined in the United States Bankruptcy Code (“US Code”) or the California Uniform Commercial Code (“UCC”) and no Account Debtor has filed or had filed against it a voluntary or involuntary petition for relief under the US Code.;
and
(g) No Account Debtor has objected to payment for or the quality or quantity of the
subject of the Purchased Receivable.
5.2 Additional Warranties, Representations and
Covenants. Seller represents, warrants and covenants:
(a) Its
name, form of organization, chief executive office, and the place where the records about all Purchased Receivables are kept is shown at the beginning of this Agreement and it will give Buyer at least 30 days prior written notice of changes to its
name, organization, jurisdiction of organization, chief executive office or location of records.
(b) It has not filed a voluntary petition or had filed against it an involuntary petition under the US Code and does not anticipate any filing;
(c) If Payment of any Purchased Receivable does not occur by its Due Date then Seller will provide a written report, within 10 days, of the reasons
for the delay.
(d) While any Purchased Receivable is outstanding, Seller will give Buyer
copies of all Forms 10-K, 10-Q and 8-K (or equivalents) within 5 days of its filing with the Securities and Exchange Commission.
6. Adjustments. If any Account Debtor asserts a discount, allowance, return, offset, defense, warranty claim, or the like (an “Adjustment”) Seller will promptly advise
Buyer and, with Buyer’s approval, resolve the dispute. Seller will resell any rejected, returned, or recovered personal property for Buyer, at Seller’s expense, with the proceeds payable to Buyer. While Seller has returned goods that are
Buyer’s property, Seller will segregate and xxxx them “property of Silicon Valley Bank.” Buyer owns the Purchased Receivables and until Payment has the right to take possession of any rejected, returned, or recovered personal
property.
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7. Indemnification.
(a) If any Account Debtor is released from any payment obligation for any Purchased Receivable because of: (i)
Seller’s act or omission; or (ii) any of the documentation about the Purchased Receivables which results in termination of any part of the Account Debtor’s obligation for the Purchased Receivables, then Seller will pay Buyer the lesser of
the amount of the Purchased Receivable not payable or the unpaid portion of the Purchased Receivable.
(b) Seller indemnifies and holds Buyer harmless from any taxes from this transaction (except Buyer’s income taxes) and costs, expenses and reasonable attorney fees if Buyer promptly notifies it of any
taxes of which Buyer has notice.
8. Repurchase Events. Any
of the following is an Event of Repurchase:
(a) Seller fails to pay Buyer any amount when
due under Section 2.2(b), 3.2(c), 3.2(d), 4.1, 7 or 10;
(b) An involuntary lien,
garnishment, attachment or the like is issued against or attaches to the Purchased Receivables or Related Property; and
(c) Seller breaches a covenant, agreement, warranty, or representation in this Agreement and the breach is not cured to Buyer’s satisfaction within 10 days after Buyer gives Seller oral or written notice.
A breach that cannot be cured is an immediate default.
9. Repurchase
Option. When an Event of Repurchase occurs Buyer shall have a right to require Seller to repurchase all of the affected Purchased Receivables for a purchase price equal to the amount(s) specified in Section 4.1. Buyer
shall also have all rights and remedies under this Agreement and the law, including those of a secured party under the UCC, and the right to collect, dispose of, sell, lease or use all Purchased Receivables and Related Property.
10. Fees, Costs and Expenses. Seller shall pay to Buyer a fee of $5,000
upon the execution hereof. In addition, immediately on demand Seller will pay all reasonable fees, costs and expenses (including attorney and professional fees) that Buyer incurs from (a) preparing, negotiating, administering and enforcing this
Agreement or any other agreement, including amendments, waivers or consents, (b) litigation or disputes relating to the Purchased Receivables, the Related Property, this Agreement or any other agreement, (c) enforcing rights against Seller, (d)
protecting or enforcing its title to the Purchased Receivables or its security interest in the Related Property, (e) collecting any amounts due from Seller or for a Purchased Receivable under a breach of Seller’s representation, warranty or
covenant and (f) any bankruptcy case or insolvency proceeding involving Seller.
11. Choice of Law, Venue and Jury Trial Waiver. California law governs this Agreement. Seller and Buyer each submit to the exclusive jurisdiction of the State and Federal courts in
Santa Xxxxx County, California.
SELLER AND BUYER EACH WAIVE ITS RIGHT TO A JURY TRIAL FROM ANY CAUSE OF ACTION RELATED TO AGREEMENT,
INCLUDING CONTRACT, TORT, BREACH OF DUTY OR OTHER CLAIM. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. 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 below:
| Seller: |
Deltagen, Inc. | |
| 000 Xxx Xxxx | ||
| Xxxxxxx Xxxx, XX 00000 | ||
| Attn: Chief Financial Officer | ||
| FAX: (000) 000-0000 | ||
| Buyer: |
Silicon Valley Bank | |
| 0000 Xxxxxx Xxxxx/XX 000 | ||
| Xxxxx Xxxxx, XX 00000 | ||
| Attn: Credit Manager | ||
| FAX: (000) 000-0000 |
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A party may change notice address by written notice to the other party.
13. General Provisions.
13.1 Successors and Assigns. This Agreement binds and is for the benefit of successors and permitted assigns of each
party. Seller may not assign this Agreement or any rights under it without Buyer’s prior written consent which may be granted or withheld in Buyer’s discretion. Buyer may, without the consent of or notice to Seller, sell, transfer, or
grant participation in any part of Buyer’s obligations, rights or benefits under this Agreement.
13.2 Indemnification. Seller will indemnify, defend and hold harmless Buyer 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 Borrower from or consequential to transactions between Buyer and Seller (including reasonable attorneys
fees and expenses), except for losses caused by Buyer’s gross negligence or willful misconduct.
13.3 Time of Essence. Time is of the essence for performance of all obligations in this Agreement.
13.4 Severability of Provision. Each provision of this Agreement is severable from every other provision in determining
the enforceability of any provision.
13.5 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.
13.6 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.
13.7 Survival. All covenants, representations and warranties made in this Agreement continue in full force while any Purchased Receivable amount remains outstanding. Seller’s
indemnification obligations survive until all statutes of limitations for actions that may be brought against Buyer have run.
13.8 Confidential Information. Buyer will use the same degree of care in handling Seller’s confidential information that it uses for its own proprietary information, but may
disclose information; (i) to its subsidiaries or affiliates in connection with their business with Seller, (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
Buyer’s possession when disclosed, or becomes part of the public domain after disclosure to Buyer; or (b) disclosed to Buyer by a third party, if Buyer does not know that the third party is prohibited from disclosing the information.
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| SELLER: |
DELTAGEN, INC., | |
| a Delaware corporation | ||
| By: |
| |
| Title: |
| |
| SELLER: |
SILICON VALLEY BANK | |
| By: |
| |
| Title: |
|
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