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AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
SPECTRIAN CORPORATION
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TABLE OF CONTENTS
Page
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1 ACCOUNTING AND OTHER TERMS...............................................4
2 LOAN AND TERMS OF PAYMENT................................................4
2.1 Credit Extensions...............................................4
2.2 Interest Rate, Payments.........................................5
2.3 Fees............................................................5
3 CONDITIONS OF LOANS......................................................5
3.1 Conditions Precedent to Initial Credit Extension................5
3.2 Conditions Precedent to all Credit Extensions...................6
4 CREATION OF SECURITY INTEREST............................................6
4.1 Grant of Security Interest......................................6
5 REPRESENTATIONS AND WARRANTIES...........................................6
5.1 Due Organization and Authorization..............................6
5.2 Collateral......................................................6
5.3 Litigation......................................................6
5.4 No Material Adverse Change in Financial Statements..............7
5.5 Solvency........................................................7
5.6 Regulatory Compliance...........................................7
5.7 Subsidiaries....................................................7
5.8 Full Disclosure.................................................7
6 AFFIRMATIVE COVENANTS....................................................8
6.1 Government Compliance...........................................8
6.2 Financial Statements, Reports, Certificates.....................8
6.3 Inventory; Returns..............................................8
6.4 Taxes...........................................................8
6.5 Insurance.......................................................8
6.6 Primary Accounts................................................9
6.7 Financial Covenants.............................................9
6.8 Further Assurances..............................................9
7 NEGATIVE COVENANTS.......................................................9
7.1 Dispositions....................................................9
7.2 Changes in Business, Ownership, Management
or Business Locations.........................................9
7.3 Mergers or Acquisitions.........................................9
7.4 Indebtedness...................................................10
7.5 Encumbrance....................................................10
7.6 Distributions; Investments.....................................10
7.7 Transactions with Affiliates...................................10
7.8 Subordinated Debt..............................................10
7.9 Compliance.....................................................10
8 EVENTS OF DEFAULT.......................................................10
8.1 Payment Default................................................10
8.2 Covenant Default...............................................11
8.3 Material Adverse Change........................................11
8.4 Attachment.....................................................11
8.5 Insolvency.....................................................11
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8.6 Other Agreements...............................................11
8.7 Judgments......................................................11
8.8 Misrepresentations.............................................11
9 BANK'S RIGHTS AND REMEDIES..............................................12
9.1 Rights and Remedies............................................12
9.2 Power of Attorney..............................................12
9.3 Accounts Collection............................................12
9.4 Bank Expenses..................................................13
9.5 Bank's Liability for Collateral................................13
9.6 Remedies Cumulative............................................13
9.7 Demand Waiver..................................................13
10 NOTICES.................................................................13
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER..............................13
12 GENERAL PROVISIONS......................................................14
12.1 Successors and Assigns.........................................14
12.2 Indemnification................................................14
12.3 Time of Essence................................................14
12.4 Severability of Provision......................................14
12.5 Amendments in Writing, Integration.............................14
12.6 Counterparts...................................................14
12.7 Survival.......................................................14
12.8 Confidentiality................................................14
12.9 Effect of Amendment and Restatement............................15
12.10 Attorneys' Fees, Costs and Expenses............................15
13 DEFINITIONS.............................................................15
13.1 Definitions....................................................15
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This AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT dated August 9,
1999, between SILICON VALLEY BANK ("Bank"), whose address is 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000 and SPECTRIAN CORPORATION ("Borrower"), whose
address is 000 X. Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
RECITALS
A. Bank and Borrower are parties to that certain Loan Agreement, dated
December 1, 1997, as amended (collectively, the "Original Agreement").
B. Borrower and Bank desire in this Agreement to set forth their
agreement with respect to a working capital loan and to amend and restate in its
entirety without novation the Original Agreement in accordance with the
provisions herein.
AGREEMENT
The parties agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed
following GAAP. Calculations and determinations must be made following GAAP. The
term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation," in this or any Loan Document. This Agreement shall be construed to
impart upon Bank a duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
2.1 Credit Extensions.
Borrower will pay Bank the unpaid principal amount of all Credit
Extensions and interest on the unpaid principal amount of the Credit Extensions.
2.1.1 Revolving Advances.
(a) Bank will make Advances not exceeding (i) the Committed Revolving
Line, minus (ii) the amount of all outstanding Letters of Credit (including
drawn but unreimbursed Letters of Credit), and minus (iii) the FX Reserve.
Amounts borrowed under this Section may be repaid and reborrowed during the term
of this Agreement.
(b) To obtain an Advance, Borrower must notify Bank by facsimile or
telephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be
made. Borrower must promptly confirm the notification by delivering to Bank the
Payment/Advance Form attached as Exhibit B. Bank will credit Advances to
Borrower's deposit account. Bank may make Advances under this Agreement based on
instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have become
due. Bank may rely on any telephone notice given by a person whom Bank believes
is a Responsible Officer or designee. Borrower will indemnify Bank for any loss
Bank suffers due to such reliance.
(c) The Committed Revolving Line terminates on the Revolving Maturity
Date, when all Advances are immediately payable.
2.1.2 Letters of Credit.
Bank will issue or have issued Letters of Credit for Borrower's account
not exceeding (i) the Committed Revolving Line minus (ii) the outstanding
principal balance of the Advances
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minus the FX Reserve; however, the face amount of outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit and any Letter of Credit
Reserve) may not exceed $10,000,000. Each Letter of Credit will have an expiry
date of no later than 180 days after the Revolving Maturity Date, but Borrower's
reimbursement obligation will be secured by cash on terms acceptable to Bank at
any time after the Revolving Maturity Date if the term of this Agreement is not
extended by Bank. Borrower agrees to execute any further documentation in
connection with the Letters of Credit as Bank may reasonably request.
2.1.3 Foreign Exchange Sublimit.
If there is availability under the Committed Revolving Line and the
Borrowing Base, then Borrower may enter in foreign exchange forward contracts
with the Bank under which Borrower commits to purchase from or sell to Bank a
set amount of foreign currency more than one business day after the contract
date (the "FX Forward Contract"). Bank will subtract 10% of each outstanding FX
Forward Contract from the foreign exchange sublimit which is a maximum of
$10,000,000(the "FX Reserve"). The total FX Forward Contracts at any one time
may not exceed 10 times the amount of the FX Reserve. Bank may terminate the FX
Forward Contracts if an Event of Default occurs.
2.2 Interest Rate, Payments.
(a) Interest Rate. Advances accrue interest on the outstanding
principal balance at a per annum rate, at Borrower's option, of either (i) a
variable rate equal to the Prime Rate or (ii) a fixed rate equal to 200 basis
points above the LIBOR Rate, as further described in the LIBOR Supplement,
attached hereto. For all fixed rate Obligations, any prepayment must include a
Prepayment Fee. After an Event of Default, Obligations accrue interest at 5
percent above the rate effective immediately before the Event of Default. The
interest rate increases or decreases when the Prime Rate changes. Interest is
computed on a 360 day year for the actual number of days elapsed.
(b) Payments. Interest due on the Committed Revolving Line is payable
on the 1st of each month. Bank may debit any of Borrower's deposit accounts
including Account Number ____________________________ for principal and interest
payments owing or any amounts Borrower owes Bank. Bank will promptly notify
Borrower when it debits Borrower's accounts. These debits are not a set-off.
Payments received after 12:00 noon Pacific time are considered received at the
opening of business on the next Business Day. When a payment is due on a day
that is not a Business Day, the payment is due the next Business Day and
additional fees or interest accrue.
2.3 Fees.
Borrower will pay:
(a) Facility Fee. A fully earned, non-refundable Facility Fee of $3,500
due on the Closing Date; and
(b) Bank Expenses. All Bank Expenses (including reasonable attorneys'
fees and reasonable expenses) incurred through and after the date of this
Agreement, are payable when due.
3 CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Credit Extension.
Bank's obligation to make the initial Credit Extension is subject to
the condition precedent that it receive the agreements, documents and fees it
requires.
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3.2 Conditions Precedent to all Credit Extensions.
Bank's obligations to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be materially
true on the date of the Payment/Advance Form and on the effective date of each
Credit Extension and no Event of Default may have occurred and be continuing, or
result from the Credit Extension. Each Credit Extension is Borrower's
representation and warranty on that date that the representations and warranties
of Section 5 remain true.
4 CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest.
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Except for Permitted
Liens, any security interest will be a first priority security interest in the
Collateral. Bank may place a "hold" on any deposit account pledged as
Collateral. If this Agreement is terminated, Bank's lien and security interest
in the Collateral will continue until Borrower fully satisfies its Obligations.
5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 Due Organization and Authorization.
Borrower and each Subsidiary 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, except where the failure to do so could
reasonably be expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's formation 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 in which the default could cause reasonably be expected to cause a
Material Adverse Change.
5.2 Collateral.
Borrower has good title to the Collateral, free of Liens except
Permitted Liens. All Inventory is in all material respects of good and
marketable quality, free from material defects.
5.3 Litigation.
Except as shown in the Schedule, there are no actions or proceedings
pending or, to the knowledge of Borrower's Responsible Officers and legal
counsel, threatened by or against Borrower or any Subsidiary in which a likely
adverse decision could reasonably be expected to cause a Material Adverse
Change.
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5.4 No Material Adverse Change in Financial Statements.
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrower's
consolidated financial condition and Borrower's consolidated results of
operations. There has not been any material deterioration in Borrower's
consolidated financial condition since the date of the most recent financial
statements submitted to Bank.
5.5 Solvency.
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; the Borrower is
not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
5.6 Regulatory Compliance.
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 T and U of the Federal Reserve Board of Governors). Borrower has
complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes,
except those being contested in good faith with adequate reserves under GAAP.
Borrower and each Subsidiary 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, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 Subsidiaries.
Borrower does not own any stock, partnership interest or other equity
securities except for Permitted Investments.
5.8 Full Disclosure.
No written representation, warranty or other statement of Borrower in
any certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading. It
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results.
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6 AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 Government Compliance.
Borrower will maintain its and all Subsidiaries' legal existence and
good standing in its jurisdiction of formation and maintain qualification in
each jurisdiction in which the failure to so qualify would reasonably be
expected to cause a material adverse effect on Borrower's business or
operations. Borrower will comply, and have each Subsidiary comply, with all
laws, ordinances and regulations to which it is subject, noncompliance with
which could have a material adverse effect on Borrower's business or operations
or would reasonably be expected to cause a Material Adverse Change.
6.2 Financial Statements, Reports, Certificates.
(a) Borrower will deliver to Bank: (i) as soon as available, but no
later than 30 days after the last day of each month, a company prepared
consolidated balance sheet and income statement covering Borrower's consolidated
operations during the period, in a form and certified by a Responsible Officer
acceptable to Bank; (ii) within 5 days of filing, copies of all statements,
reports and notices made available to Borrower's security holders or to any
holders of Subordinated Debt and all reports on Form 10-K, 10-Q and 8-K filed
with the Securities and Exchange Commission; (iii) a prompt report of any legal
actions pending or threatened against Borrower or any Subsidiary that could
result in damages or costs to Borrower or any Subsidiary of $100,000 or more;
and (iv) budgets, sales projections, operating plans or other financial
information Bank reasonably requests.
(b) Within 30 days after the last day of each month, Borrower will
deliver to Bank with the monthly financial statements a Compliance Certificate
signed by a Responsible Officer in the form of Exhibit C.
(c) Bank has the right to audit Borrower's Collateral at Borrower's
expense, but, at such times as outstanding Advances exist or prior to an initial
Advance, the audits will be conducted no more often than every year unless an
Event of Default has occurred and is continuing.
6.3 Inventory; Returns.
Borrower will keep all Inventory in good and marketable condition, free
from material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $50,000.
6.4 Taxes.
Borrower will make, and cause each Subsidiary to make, timely payment
of all material federal, state, and local taxes or assessments and will deliver
to Bank, on demand, appropriate certificates attesting to the payment.
6.5 Insurance.
Borrower will keep its business and the Collateral insured for risks
and in amounts, as Bank may reasonably request. Insurance policies will be in a
form, with companies, and in amounts that are satisfactory to Bank in Bank's
reasonable discretion. All property policies will have a lender's loss payable
endorsement showing Bank as an additional loss payee and all liability policies
will show the Bank as an additional insured and provide that the insurer must
give
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Bank at least 20 days notice before canceling its policy. At Bank's request,
Borrower will deliver certified copies of policies and evidence of all premium
payments. Proceeds payable under any policy will, at Bank's option, be payable
to Bank on account of the Obligations.
6.6 Primary Accounts.
Borrower will maintain its primary depository and operating accounts
with Bank.
6.7 Financial Covenants.
Borrower will maintain as of the last day of each month:
(i) Quick Ratio. A ratio of Quick Assets to Current
Liabilities of at least 2.00 to 1.00.
(ii) Debt/Tangible Net Worth Ratio. A ratio of Total
Liabilities less Subordinated Debt to Tangible Net Worth plus Subordinated Debt
of not more than 1.00 to 1.00.
(iii) Profitability. Borrower will have a minimum net profit
of $1 for each quarter, except that Borrower may suffer a loss not to exceed
$2,000,000 for the fiscal quarter ended June 30, 1999.
6.8 Further Assurances.
Borrower will execute any further instruments and take further action
as Bank reasonably requests to perfect or continue Bank's security interest in
the Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
Borrower will not do any of the following without Bank's prior written
consent, which will not be unreasonably withheld:
7.1 Dispositions.
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its Subsidiaries to Transfer, all or any part of
its business or property, other than Transfers (i) of Inventory in the ordinary
course of business; (ii) of non-exclusive licenses and similar arrangements for
the use of the property of Borrower or its Subsidiaries in the ordinary course
of business; or (iii) of worn-out or obsolete Equipment.
7.2 Changes in Business, Ownership, Management or Business Locations.
Engage in or permit any of its Subsidiaries to engage in any business
other than the businesses currently engaged in by Borrower or reasonably related
thereto or have a material change in its ownership or management (other than the
sale of Borrower's equity securities in a public offering or to venture capital
investors approved by Bank) of greater than 25%. Borrower will not, without at
least 30 days prior written notice, relocate its chief executive office or add
any new offices or business locations.
7.3 Mergers or Acquisitions.
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person, except where (i) no Event of Default has occurred
and is continuing or would result from such action during the term of this
Agreement and (ii) result
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in a decrease of more than 25% of Tangible Net Worth. A Subsidiary may merge or
consolidate into another Subsidiary or into Borrower.
7.4 Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance.
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
here, subject to Permitted Liens.
7.6 Distributions; Investments.
Directly or indirectly acquire or own any Person, or make any
Investment in any Person, other than Permitted Investments, or permit any of its
Subsidiaries to do so. Pay any dividends or make any distribution or payment or
redeem, retire or purchase any capital stock.
7.7 Transactions with Affiliates.
Directly or indirectly enter or permit any material transaction with
any Affiliate except transactions that are in the ordinary course of Borrower's
business, on terms less favorable to Borrower than would be obtained in an arm's
length transaction with a non-affiliated Person.
7.8 Subordinated Debt.
Make or permit any payment on any Subordinated Debt, except under the
terms of the Subordinated Debt, or amend any provision in any document relating
to the Subordinated Debt without Bank's prior written consent.
7.9 Compliance.
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 Credit Extension 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, if the
violation could reasonable be expected to have a material adverse effect on
Borrower's business or operations or would reasonably be expected to cause a
Material Adverse Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 Payment Default.
If Borrower fails to pay any of the Obligations within 3 days after
their due date. During the additional period the failure to cure the default is
not an Event of Default (but no Credit Extension will be made during the cure
period);
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8.2 Covenant Default.
If Borrower does not perform any obligation in Section 6 or violates
any covenant in Section 7 or does not perform or observe any other material
term, condition or covenant in this Agreement, any Loan Documents, or in any
agreement between Borrower and Bank and as to any default under a term,
condition or covenant that can be cured, has not cured the default within 10
days after it occurs, or if the default cannot be cured within 10 days or cannot
be cured after Borrower's attempts within 10 day period, and the default may be
cured within a reasonable time, then Borrower has an additional period (of not
more than 30 days) to attempt to cure the default. During the additional time,
the failure to cure the default is not an Event of Default (but no Credit
Extensions will be made during the cure period);
8.3 Material Adverse Change.
(i) If there occurs a material impairment in the perfection or priority
of the Bank's security interest in the Collateral or in the value of such
Collateral (other than normal depreciation) which is not covered by adequate
insurance or (ii) if the Bank determines, based upon information available to it
and in its reasonable judgment, that there is a reasonable likelihood that
Borrower will fail to comply with one or more of the financial covenants in
Section 6 during the next succeeding financial reporting period.
8.4 Attachment.
If any material portion of Borrower's assets is attached, seized,
levied on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days, or if Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business or if a judgment or other claim becomes a Lien on a material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed against
any of Borrower's assets by any government agency and not paid within 10 days
after Borrower receives notice. These are not Events of Default if stayed or if
a bond is posted pending contest by Borrower (but no Credit Extensions will be
made during the cure period);
8.5 Insolvency.
If Borrower becomes insolvent or if Borrower begins an Insolvency
Proceeding or an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 30 days (but no Credit Extensions will be made before
any Insolvency Proceeding is dismissed);
8.6 Other Agreements.
If there is a default in any agreement between Borrower and a third
party that gives the third party the right to accelerate any Indebtedness
exceeding $100,000 or that could cause a Material Adverse Change;
8.7 Judgments.
If a money judgment(s) in the aggregate of at least $50,000 is rendered
against Borrower and is unsatisfied and unstayed for 10 days (but no Credit
Extensions will be made before the judgment is stayed or satisfied); or
8.8 Misrepresentations.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any writing delivered to Bank or to
induce Bank to enter this Agreement or any Loan Document.
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9 BANK'S RIGHTS AND REMEDIES
9.1 Rights and Remedies.
When an Event of Default occurs and continues Bank may, without notice
or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an
Event of Default described in Section 8.5 occurs all Obligations are immediately
due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors
for amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrower will
assemble the Collateral if Bank requires and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security
interest and pay all expenses incurred. Borrower grants Bank a license to enter
and occupy any of its premises, without charge, to exercise any of Bank's rights
or remedies;
(e) 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;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell the Collateral; and
(g) Dispose of the Collateral according to the Code.
9.2 Power of Attorney.
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or xxxx of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly
with account debtors, for amounts and on terms Bank determines reasonable; and
(v) transfer the Collateral into the name of Bank or a third party as the Code
permits. Bank may exercise the power of attorney to sign Borrower's name on any
documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrower's attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 Accounts Collection.
When an Event of Default occurs and continues, Bank may notify any
Person owing Borrower money of Bank's security interest in the funds and verify
the amount of the Account. Borrower must collect all payments in trust for Bank
and, if requested by Bank, immediately deliver the payments to Bank in the form
received from the account debtor, with proper endorsements for deposit.
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9.4 Bank Expenses.
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons, Bank may make all or part of the payment or obtain
insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to make
similar payments in the future or Bank's waiver of any Event of Default.
9.5 Bank's Liability for Collateral.
If Bank complies with reasonable banking practices and Section 9-207 of
the Code, it is not liable for: (a) the safekeeping of the Collateral; (b) any
loss or damage to the Collateral; (c) any diminution in the value of the
Collateral; or (d) any act or default of any carrier, warehouseman, bailee, or
other person. Borrower bears all risk of loss, damage or destruction of the
Collateral.
9.6 Remedies Cumulative.
Bank's rights and remedies under this Agreement, the Loan Documents,
and all other agreements are cumulative. Bank has all rights and remedies
provided under the Code, by law, or in equity. Bank's exercise of one right or
remedy is not an election, and Bank's waiver of any Event of Default is not a
continuing waiver. Bank's delay is not a waiver, election, or acquiescence. No
waiver is effective unless signed by Bank and then is only effective for the
specific instance and purpose for which it was given.
9.7 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 guarantees held by Bank on which Borrower is
liable.
10 NOTICES
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by telefacsimile to the addresses set forth at the beginning of
this Agreement. A party may change its notice address by giving the other party
written notice.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
California law governs the Loan Documents without regard to principles
of conflicts of law. 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 ANY OF THE LOAN DOCUMENTS 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
12 GENERAL PROVISIONS
12.1 Successors and Assigns.
This Agreement binds and is for the benefit of the 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 has the right, without the consent of or
notice to Borrower, to sell, transfer, negotiate, or grant participation in all
or any part of, or any interest in, Bank's obligations, rights and benefits
under this Agreement.
12.2 Indemnification.
Borrower will indemnify, defend and hold harmless Bank and its
officers, employees, and agents against: (a) all obligations, demands, claims,
and liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, 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.
12.3 Time of Essence.
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 Severability of Provision.
Each provision of this Agreement is severable from every other
provision in determining the enforceability of any provision.
12.5 Amendments in Writing, Integration.
All amendments to this Agreement must be in writing and signed by
Borrower and Bank. This Agreement represents the entire agreement about this
subject matter, and supersedes prior negotiations or agreements. All prior
agreements, understandings, representations, warranties, and negotiations
between the parties about the subject matter of this Agreement merge into this
Agreement and the Loan Documents.
12.6 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 Survival.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.
12.8 Confidentiality.
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, but
disclosure of information may be made (i) to Bank's subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the loans, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with Bank's
examination or audit and
14
(v) as Bank considers appropriate exercising remedies under this Agreement.
Confidential information does not include information that either: (a) is in the
public domain or in Bank's possession when disclosed to Bank, or becomes part of
the public domain after disclosure to Bank; or (b) is disclosed to Bank by a
third party, if Bank does not know that the third party is prohibited from
disclosing the information.
12.9 Effect of Amendment and Restatement.
This Agreement is intended to and does completely amend and restate,
without novation, the Original Agreement. All credit extensions or loans
outstanding under the Original Agreement are and shall continue to be
outstanding under this Agreement. All security interests granted under the
Original Agreement are hereby confirmed and ratified and shall continue to
secure all Obligations under this Agreement.
12.10 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between Borrower and Bank arising out of
the Loan Documents, the prevailing party will be entitled to recover its
reasonable attorneys' fees and other reasonable costs and expenses incurred, in
addition to any other relief to which it may be entitled.
13 DEFINITIONS
13.1 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.
"Advance" or "Advances" is a loan advance (or advances) under the
Committed Revolving Line.
"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.
"Bank Expenses" are all audit fees and expenses and reasonable costs
and expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"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.
"Business Day" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"Closing Date" is the date of this Agreement.
"Code" is the California Uniform Commercial Code.
"Collateral" is the property described on Exhibit A.
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"Committed Revolving Line" is an Advance of up to $10,000,000.
"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.
"Credit Extension" is each Advance, Letter of Credit, Exchange
Contract, or any other extension of credit by Bank for Borrower's benefit.
"Current Liabilities" are the aggregate amount of Borrower's Total
Liabilities which mature within one (1) year.
"Eligible Accounts" are Accounts in the ordinary course of Borrower's
business that meet all Borrower's representations and warranties in Section 5;
but Bank may change eligibility standards by giving Borrower notice. Unless Bank
agrees otherwise in writing, Eligible Accounts will not include:
(a) Accounts that the account debtor has not paid within 90 days of
invoice date;
(b) Accounts for an account debtor, 50% or more of whose Accounts have
not been paid within 90 days of invoice date;
(c) Credit balances over 90 days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose total
obligations to Borrower exceed 25% of all Accounts, for the amounts
that exceed that percentage, unless the Bank approves in writing;
(e) Accounts for which the account debtor does not have its principal
place of business in the United States;
(f) Accounts for which the account debtor is a federal, state or local
government entity or any department, agency, or instrumentality;
(g) Accounts for which Borrower owes the account debtor, but only up to
the amount owed (sometimes called "contra" accounts, accounts payable,
customer deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which
goods are consigned, sales guaranteed, sale or return, sale on
approval, xxxx and hold, or other terms if account debtor's payment may
be conditional;
(i) Accounts for which the account debtor is Borrower's Affiliate,
officer, employee, or agent;
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(j) Accounts in which the account debtor disputes liability or makes
any claim and Bank believes there may be a basis for dispute (but only
up to the disputed or claimed amount), or if the Account Debtor is
subject to an Insolvency Proceeding, or becomes insolvent, or goes out
of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"Equipment" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ERISA" is the Employment Retirement Income Security Act of 1974, and
its regulations.
"FX Forward Contract" is defined in Section 2.1.3.
"FX Reserve " is defined in Section 2.1.3.
"GAAP" is generally accepted accounting principles.
"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.
"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.
"Inventory" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"Investment" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"Letter of Credit" is defined in Section 2.1.2.
"LIBOR Supplement" is attached hereto as Exhibit A-1.
"Lien" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"Loan Documents" are, collectively, this Agreement, any note, or notes
or guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"Material Adverse Change" is defined in Section 8.3.
"Obligations" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including cash management services,
letters of credit and foreign
17
exchange contracts, if any and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned to
Bank.
"Original Agreement" has the meaning set forth in recital paragraph A.
"Permitted Indebtedness" is:
(a) Borrower's indebtedness to Bank under this Agreement or any other
Loan Document;
(b) Indebtedness existing on the Closing Date and shown on the
Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(e) Indebtedness secured by Permitted Liens.
"Permitted Investments" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
and
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any State maturing within 1
year from its acquisition, (ii) commercial paper maturing no more than 1 year
after its creation and having the highest rating from either Standard & Poor's
Corporation or Xxxxx'x Investors Service, Inc., and (iii) Bank's certificates of
deposit issued maturing no more than 1 year after issue.
"Permitted Liens" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower
or its Subsidiaries incurred for financing the acquisition of the Equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
property and improvements and the proceeds of the equipment;
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrower's business and any interest or title of a lessor,
licensor or under any lease or license, if the leases, subleases, licenses and
sublicenses permit granting Bank a security interest;
(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
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"Prepayment Fee" is a fee on any portion of the Obligations with a
fixed interest rate (the "Fixed Obligations") paid before the payment due date.
"Base Interest Rate" means Bank's initial cost of funding the Fixed Obligations.
The Prepayment Fee is calculated as follows: First, Bank determines a "Current
Market Rate" based on what the Bank would receive if it loaned the remaining
amount on the prepayment date in a wholesale funding market matching maturity,
remaining principal and interest amounts and principal and interest payment
dates (the aggregate payments received are the "Current Market Rate Amount").
Bank may select any wholesale funding market rate as the Current Market Rate.
Second, Bank will take the prepayment amount and calculate the present value of
each remaining principal and interest payment which, without prepayment, the
Bank would have received during the term of the Fixed Obligations using the Base
Interest Rate. The sum of the present value calculations is the "Xxxx to Market
Amount." Third, the Bank will subtract the Xxxx to Market Amount from the
Current Market Rate Amount. Any amount greater than zero is the Prepayment Fee.
"Prime Rate" is Bank's most recently announced "prime rate," even if it
is not Bank's lowest rate.
"Quick Assets" is, on any date, the Borrower's consolidated,
unrestricted cash, cash equivalents, net billed accounts receivable and
investments with maturities of fewer than 12 months determined according to
GAAP.
"Responsible Officer" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"Revolving Maturity Date" is December 1, 1999.
"Schedule" is any attached schedule of exceptions.
"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
Borrower 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.
BORROWER:
Spectrian Corporation
By: ______________________________________
Title: ___________________________________
19
BANK:
SILICON VALLEY BANK
By: ______________________________________
Title: ___________________________________
20
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
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 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, 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;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, certificates of deposit, instruments and 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.
EXHIBIT A-1
LIBOR SUPPLEMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This LIBOR Supplement to Amended and Restated Loan and Security
Agreement (the "Supplement") is a supplement to Amended and Restated Loan and
Security Agreement (the "Loan Agreement") dated as of August 9, 1999 between
Silicon Valley Bank ("Bank") and Spectrian Corporation ("Borrower"), and forms a
part of and is incorporated into the Loan Agreement.
1. Definitions.
"Business Day" means a day of the year (a) that is not a Saturday,
Sunday or other day on which banks in the State of California or the City of
London are authorized or required to close and (b) on which dealings are carried
on in the interbank market in which Bank customarily participates.
"Interest Period" means for each LIBOR Rate Loan, a period of
approximately one, three or six months as the Borrower may elect, provided that
the last day of an Interest Period for a LIBOR Rate Loan shall be determined in
accordance with the practices of the LIBOR interbank market as from time to time
in effect, provided, further, in all cases such period shall expire not later
than the applicable Revolving Maturity Date.
"Interest Rate" shall mean as to: (a) Prime Rate Loans, a rate per
annum equal to the Prime Rate; and (b) LIBOR Rate Loans, a rate of 200 basis
points in excess of the LIBOR Rate (based on the LIBOR Rate applicable for the
Interest Period selected by the Borrower).
"LIBOR Base Rate" means, for any Interest Period for a LIBOR Rate Loan,
the rate of interest per annum determined by Bank to be the per annum rate of
interest as which deposits in United States Dollars are offered to Bank in the
London interbank market in which Bank customarily participates at 11:00 A.M.
(local time in such interbank market) two (2) Business Days before the first day
of such Interest Period for a period approximately equal to such Interest Period
and in an amount approximately equal to the amount of such Loan.
"LIBOR Rate" shall mean, for any Interest Period for a LIBOR Rate Loan,
a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
equal to (i) the LIBOR Base Rate for such Interest Period divided by (ii) 1
minus the Reserve Requirement for such Interest Period.
"LIBOR Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the LIBOR Rate in accordance with the terms hereof.
"Prime Rate" means the variable rate of interest per annum, most
recently announced by Bank as its "prime rate," whether or not such announced
rate is the lowest rate available from Bank. The interest rate applicable to the
Prime Rate Loans shall change on each date there is a change in the Prime Rate.
"Prime Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the Prime Rate in accordance with the terms hereof.
"Regulatory Change" means, with respect to Bank, any change on or after
the date of this Loan Agreement in United States federal, state or foreign laws
or regulations, including Regulation D, or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
lenders including Bank of or under any United States federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" means, for any Interest Period, the average
maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D against "Eurocurrency liabilities" (as such term is used in
2
Regulation D) by member banks of the Federal Reserve System. Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by Bank by reason of any Regulatory Change
against (i) any category of liabilities which includes deposits by reference to
which the LIBOR Rate is to be determined as provided in the definition of "LIBOR
Base Rate" or (ii) any category of extensions of credit or other assets which
include Loans.
2. Requests for Loans; Confirmation of Initial Loans. Each LIBOR Rate
Loan shall be made upon the irrevocable written request of Borrower received by
Bank not later than 11:00 a.m. (Santa Clara, California time) on the Business
Day three (3) Business Days prior to the date such Loan is to be made. Each such
notice shall specify the date such Loan is to be made, which day shall be a
Business Day; the amount of such Loan, the Interest Period for such Loan, and
comply with such other requirements as Bank determines are reasonable or
desirable in connection therewith.
Each written request for a LIBOR Rate Loan shall be in the form of a
LIBOR Rate Loan Borrowing Certificate as set forth on Exhibit A, which shall be
duly executed by the Borrower.
Each Prime Rate Loan shall be made upon the irrevocable written request
of Borrower received by Bank not later than 11:00 a.m. (Santa Clara, California
time) on the Business Day one (1) Business day prior to the date such Loan is to
be made. Each such notice shall specify the date such Loan is to be made, which
day shall be a Business Day and the amount of such Loan, and comply with such
other requirements as Bank determines are reasonable or desirable in connection
therewith.
3. Conversion/Continuation of Loans.
(a) Borrower may from time to time submit in writing a request that
Prime Rate Loans be converted to LIBOR Rate Loans or that any existing LIBOR
Rate Loans continue for an additional Interest Period. Such request shall
specify the amount of the Prime Rate Loans which will constitute LIBOR Rate
Loans (subject to the limits set forth below) and the Interest Period to be
applicable to such LIBOR Rate Loans. Each written request for a conversion to a
LIBOR Rate Loan or a continuation of a LIBOR Rate Loan shall be substantially in
the form of a LIBOR Rate Conversion/Continuation Certificate as set forth on
Exhibit B, which shall be duly executed by the Borrower. Subject to the terms
and conditions contained herein, three (3) Business Days after Bank's receipt of
such a request from Borrower, such Prime Rate Loans shall be converted to LIBOR
Rate Loans or such LIBOR Rate Loans shall continue, as the case may be provided
that:
(i) no Event of Default or event which with notice or passage of time
or both would constitute an Event of Default exists;
(ii) no party hereto shall have sent any notice of termination of this
Supplement or of the Loan Agreement.
(iii) Borrower shall have complied with such customary procedures as
Bank has established from time to time for Borrower's requests for LIBOR Rate
Loans;
(iv) the amount of a LIBOR Rate Loan shall be $500,000 or such greater
amount which is an integral multiple of $50,000; and
(v) Bank shall have determined that the Interest Period or LIBOR Rate
is available to Bank which can be readily determined as of the date of the
request for such LIBOR Rate Loan.
Any request by Borrower to convert Prime Rate Loans to LIBOR Rate Loans
or continue any existing LIBOR Rate Loans shall be irrevocable. Notwithstanding
anything to the contrary contained herein, Bank shall not be required to
purchase United States Dollar deposits in the London interbank market or other
applicable LIBOR Rate market to fund any LIBOR Rate Loans, but the provisions
hereof shall be deemed to apply as if Bank had purchased such deposits to fund
the LIBOR Rate Loans.
3
(b) Any LIBOR Rate Loans shall automatically convert to Prime Rate
Loans upon the last day of the applicable Interest Period, unless Bank has
received and approved a complete and proper request to continue such LIBOR Rate
Loan at least three (3) Business Days prior to such last day in accordance with
the terms hereof. Any LIBOR Rate Loans shall, at Bank's option, convert to Prime
Rate Loans in the event that (i) an Event of Default, or event which with the
notice or passage of time or both would constitute an Event of Default, shall
exist, (ii) this Supplement or the Loan Agreement shall terminate, or (iii) the
aggregate principal amount of the Prime Rate Loans which have previously been
converted to LIBOR Rate Loans, or the aggregate principal amount of existing
LIBOR Rate Loans continued, as the case may be, at the beginning of an Interest
Period shall at any time during such Interest Period exceeds the Committed Line.
Borrower agrees to pay to Bank, upon demand by Bank (or Bank may, at its option,
charge Borrower's loan account) any amounts required to compensate Bank for any
loss (including loss of anticipated profits), cost or expense incurred by such
person, as a result of the conversion of LIBOR Rate Loans to Prime Rate Loans
pursuant to any of the foregoing.
(c) On all Loans, Interest shall be payable by Borrower to Bank monthly
in arrears not later than the 1st day of each calendar month at the applicable
Interest Rate.
4. Additional Requirements/Provisions Regarding LIBOR Rate Loans; Etc.
(a) If for any reason (including voluntary or mandatory prepayment or
acceleration), Bank receives all or part of the principal amount of a LIBOR Rate
Loan prior to the last day of the Interest Period for such Loan, Borrower shall
immediately notify Borrower's account officer at Bank and, on demand by Bank,
pay Bank the amount (if any) by which (i) the additional interest which would
have been payable on the amount so received had it not been received until the
last day of such Interest Period exceeds (ii) the interest which would have been
recoverable by Bank by placing the amount so received on deposit in the
certificate of deposit markets or the offshore currency interbank markets or
United States Treasury investment products, as the case may be, for a period
starting on the date on which it was so received and ending on the last day of
such Interest Period at the interest rate determined by Bank in its reasonable
discretion. Bank's determination as to such amount shall be conclusive absent
manifest error.
(b) Borrower shall pay to Bank, upon demand by Bank, from time to time
such amounts as Bank may determine to be necessary to compensate it for any
costs incurred by Bank that Bank determines are attributable to its making or
maintaining of any amount receivable by Bank hereunder in respect of any Loans
relating thereto (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), in each case resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
Bank under this Supplement in respect of any Loans (other than changes which
affect taxes measured by or imposed on the overall net income of Bank by the
jurisdiction in which such Bank has its principal office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of Bank (including any Loans or any
deposits referred to in the definition of "LIBOR Base Rate"); or
(iii) imposes any other condition affecting this Supplement
(or any of such extensions of credit or liabilities).
Bank will notify Borrower of any event occurring after the date of the Loan
Agreement which will entitle Bank to compensation pursuant to this section as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. Bank will furnish Borrower with a statement setting
forth the basis and amount of each request by Bank for compensation under this
Section 4. Determinations and allocations by Bank for purposes of this Section 4
of the effect of any Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate Bank in respect of any Additional Costs, shall be conclusive absent
manifest error.
4
(c) Borrower shall pay to Bank, upon the request of Bank, such amount
or amounts as shall be sufficient (in the sole good faith opinion of such Bank)
to compensate it for any loss, costs or expense incurred by it as a result of
any failure by Borrower to borrow a Loan on the date for such borrowing
specified in the relevant notice of borrowing hereunder.
(d) If Bank shall determine that the adoption or implementation of any
applicable law, rule, regulation or treaty regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Bank (or its
applicable lending office) with any respect or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on capital of Bank or any person or entity controlling Bank (a "Parent")
as a consequence of its obligations hereunder to a level below that which Bank
(or its Parent) could have achieved but for such adoption, change or compliance
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by Bank to be material, then from time to time, within 15 days
after demand by Bank, Borrower shall pay to Bank such additional amount or
amounts as will compensate Bank for such reduction. A statement of Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive absent manifest error.
(e) If at any time Bank, in its sole and absolute discretion,
determines that: (i) the amount of the LIBOR Rate Loans for periods equal to the
corresponding Interest Periods are not available to Bank in the offshore
currency interbank markets, or (ii) the LIBOR Rate does not accurately reflect
the cost to Bank of lending the LIBOR Rate Loan, then Bank shall promptly give
notice thereof to Borrower, and upon the giving of such notice Bank's obligation
to make the LIBOR Rate Loans shall terminate, unless Bank and the Borrower agree
in writing to a different interest rate Loans shall terminate, unless Bank and
the Borrower agree in writing to a different interest rate applicable to LIBOR
Rate Loans. If it shall become unlawful for Bank to continue to fund or maintain
any Loans, or to perform its obligations hereunder, upon demand by Bank,
Borrower shall prepay the Loans in full with accrued interest thereon and all
other amounts payable by Borrower hereunder (including, without limitation, any
amount payable in connection with such prepayment pursuant to Section 4(a)).
5
EXHIBIT A
LIBOR RATE LOAN BORROWING CERTIFICATE
The undersigned hereby certifies as follows:
I, ________________________, am the duly elected and acting
_______________ of Spectrian Corporation ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain
LIBOR Supplement to Agreement together with the Loan Agreement by and between
Borrower and Silicon Valley Bank ("Bank") (the "Loan Agreement"). The terms used
in this Borrowing Certificate which are defined in the Loan Agreement have the
same meaning herein as ascribed to them therein.
Borrower hereby requests on _____________, 19__ a LIBOR Rate Loan (the
"Loan") as follows:
(a) The date on which the Loan is to be made is ____________ 19__.
(b) The amount of the Loan is to be _______________________
($______________), for an Interest Period of ___________ month(s).
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 this request for a loan; 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.
IN WITNESS WHEREOF, this Borrowing Base Certificate is executed by the
undersigned as of this ______ day of _______, _______.
SPECTRIAN CORPORATION
By: ______________________________________
Title: ___________________________________
Title: ___________________________________
For Internal Bank Use Only
---------------------------- -------------------------- -------------------------- --------------------------
LIBOR Pricing Date LIBOR Rate LIBOR Rate Variance Maturity Date
---------------------------- -------------------------- -------------------------- --------------------------
________%
---------------------------- -------------------------- -------------------------- --------------------------
6
EXHIBIT B
LIBOR RATE CONVERSION/CONTINUATION CERTIFICATE
The undersigned hereby certifies as follows:
I, ________________________, am the duly elected and acting
_______________ of SPECTRIAN CORPORATION ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain
LIBOR Supplement to Agreement together with the Amended and Restated Loan and
Security Agreement by and between Borrower and Silicon Valley Bank ("Bank") (the
"Loan Agreement"). The terms used in this LIBOR Rate Conversion/Continuation
Certificate which are defined in the Loan Agreement have the same meaning herein
as ascribed to them therein.
Borrower hereby requests on _____________, 19__ a LIBOR Rate Loan (the
"Loan") as follows:
(a) ____ (i) A rate conversion of an existing Prime Rate Loan from
a Prime Rate Loan to a LIBOR Rate Loan; or
____ (ii) A continuation of an existing LIBOR Rate Loan as a
LIBOR Rate Loan;
[Check (i) or (ii) above]
(b) The date on which the Loan is to be made is ____________ 19__.
(c) The amount of the Loan is to be _______________________
($______________), for an Interest Period of ___________ month(s).
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 this request for a loan; 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.
IN WITNESS WHEREOF, this LIBOR Rate Conversion/Continuation Certificate
is executed by the undersigned as of this _______ day of __________,
_____________.
SPECTRIAN CORPORATION
By: ______________________________________
Title: ___________________________________
For Internal Bank Use Only
---------------------------- -------------------------- -------------------------- --------------------------
LIBOR Pricing Date LIBOR Rate LIBOR Rate Variance Maturity Date
---------------------------- -------------------------- -------------------------- --------------------------
________%
---------------------------- -------------------------- -------------------------- --------------------------
7
EXHIBIT B
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: __________________________________
FAX#: (000) 000-0000 TIME: __________________________________
FROM: Spectrian Corporation
----------------------------------------------------------------------------------------------------------------------------
CLIENT NAME (BORROWER)
REQUESTED BY:
--------------------------------------------------------------------------------------------------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:
------------------------------------------------------------------------------------------------------------
PHONE NUMBER:
---------------------------------------------------------------------------------------------------------------------
FROM ACCOUNT # TO ACCOUNT #
---------------------------------- ----------------------------------------------------------------
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $_______________________________________________________________
PRINCIPAL PAYMENT (ONLY) $_______________________________________________________________
INTEREST PAYMENT (ONLY) $_______________________________________________________________
PRINCIPAL AND INTEREST (PAYMENT) $_______________________________________________________________
OTHER INSTRUCTIONS:
----------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
All Borrower's representations and warranties in the Amended and Restated Loan and Security Agreement are true, correct and complete
in all material respects on the date of the telephone request for and Advance confirmed by this Borrowing Certificate; but those
representations and warranties expressly referring to another date shall be true, correct and complete in all material respects as
of that date.
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
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 C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: SPECTRIAN CORPORATION
The undersigned authorized officer of Spectrian Corporation
("Borrower") certifies that under the terms and conditions of the Amended and
Restated Loan and Security Agreement between Borrower and Bank (the
"Agreement"), (i) Borrower is in complete compliance for the period ending
_______________ with all required covenants except as noted below and (ii) all
representations and warranties in the Agreement are true and correct in all
material respects on this date. Attached are the required documents supporting
the certification. The Officer certifies that these are prepared in accordance
with Generally Accepted Accounting Principles (GAAP) consistently applied from
one period to the next except as explained in an accompanying letter or
footnotes. The Officer acknowledges that no borrowings may be requested at any
time or date of determination that Borrower is not in compliance with any of the
terms of the Agreement, and that compliance is determined not just at the date
this certificate is delivered.
Please indicate compliance status by circling Yes/No under "Complies" column.
Reporting Covenant Required Complies
------------------ -------- --------
Monthly financial statements + CC Monthly within 30 days Yes No
10-Q, 10-K and 8-K Within 5 days after
filing with SEC Yes No
Financial Covenant Required Actual Complies
------------------ -------- ------ --------
Maintain on a Monthly Basis:
Minimum Quick Ratio 2.00:1.00 _____:1.00 Yes No
Maximum Debt/Tangible Net Worth 1.00:1.00 _____:1.00 Yes No
Profitability: Quarterly $_________ Yes No
Losses not to exceed: $2,000,000 for the fiscal quarter
ended June 30, 1999 Yes No
Comments Regarding Exceptions: ----------------------------------------
See Attached. BANK USE ONLY
Received by: ___________________________
Sincerely, AUTHORIZED SIGNER
Spectrian Corporation Date: __________________________________
________________________________ Verified: ______________________________
SIGNATURE AUTHORIZED SIGNER
Date: __________________________________
________________________________
TITLE Compliance Status: Yes No
----------------------------------------
________________________________
DATE
[GRAPHIC OMITTED]
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: Spectrian Corporation
LOAN OFFICER: Xxxxx X. Xxxxx
DATE: August 9, 1999
Revolving Loan Fee $3,500.00
UCC Search Fee 75.00
Documentation Fee 250.00
TOTAL FEE DUE $3,825.00
------------- =========
Please indicate the method of payment:
{ } A check for the total amount is attached.
{ } Debit DDA # __________________ for the total amount.
{ } Loan proceeds
Borrower:
By: _______________________________________
(Authorized Signer)
___________________________________________
Silicon Valley Bank (Date)
Account Officer's Signature
CORPORATE BORROWING RESOLUTION
Borrower: Spectrian Corporation Bank: Silicon Valley Bank
000 X. Xxxx Xxxxx 0000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000-0000
I, the Secretary or Assistant Secretary of Spectrian Corporation ("Borrower"),
CERTIFY that Borrower is a corporation existing under the laws of the State of
Delaware.
I certify that at a meeting of Borrower's Directors (or by other authorized
corporate action) duly held the following resolutions were adopted.
It is resolved that any one of the following officers of Borrower, whose name,
title and signature is below:
NAMES POSITIONS ACTUAL SIGNATURES
----- --------- -----------------
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
may act for Borrower and:
Borrow Money. Borrow money from Silicon Valley Bank ("Bank").
Execute Loan Documents. Execute any loan documents Bank requires.
Grant Security. Grant Bank a security interest in any of Borrower's
assets.
Negotiate Items. Negotiate or discount all drafts, trade acceptances,
promissory notes, or other indebtedness in which Borrower has an
interest and receive cash or otherwise use the proceeds.
Letters of Credit. Apply for letters of credit from Bank.
Foreign Exchange Contracts. Execute spot or forward foreign exchange
contracts.
Issue Warrants. Issue warrants for Borrower's stock.
Further Acts. Designate other individuals to request advances, pay fees
and costs and execute other documents or agreements (including
documents or agreement that waive Borrowers right to a jury trial) they
think necessary to effectuate these Resolutions.
Further resolved that all acts authorized by these Resolutions and performed
before they were adopted are ratified. These Resolutions remain in effect and
Bank may rely on them until Bank receives written notice of their revocation.
I certify that the persons listed above are Borrower's officers with the titles
and signatures shown following their names and that these resolutions have not
been modified are currently effective.
CERTIFIED TO AND ATTESTED BY:
X ______________________________________________
*Secretary or Assistant Secretary
X ______________________________________________
*NOTE: In case the Secretary or other certifying officer is designated by the
foregoing resolutions as one of the signing officers, this resolution should
also be signed by a second Officer or Director of Borrower.
2
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5 years
from date of filing.
---------------------------------------------------------------------------------------------------
A. NAME & TEL.# OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT.# (optional)
Phone 000-000-0000 Fax 000-000-0000
---------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Data File Services, Inc.
0092023005731001
X.X. Xxx 000
Xxx Xxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): [ ]LESSOR/LESSEE [ ]CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
-----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) FILED WITH: CALIFORNIA
------------------------------------------------------------------------------------------------------------------------------
la. ENTITY'S NAME
SPECTRIAN CORPORATION, A DELAWARE CORPORATION
OR
------------------------------------------------------------------------------------------------------------------------------
lb. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
000 X. Xxxx Xxxxx Xxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL le. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR
------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
-----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only one secured party name (3a or 3b)
------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR
------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
0000 Xxxxxx Xxxxx Xxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
See Exhibit A attached hereto and made a part hereof by this reference.
-----------------------------------------------------------------------------------------------------------------------------------
5. CHECK [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
BOX Debtor to perfect a security interest (a) in collateral already subject Documentary Documentary stamp
(if applicable) to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtors location was changed to this state, or [ ] [ ]
(b) in accordance with other statuotory provisions (additional data may
be required)
-----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SINGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
SPECTRIAN CORPORATION A DELAWARE CORPORATION Attach Addendum (if applicable)
-----------------------------------------------------------------------------------------------------------------------------------
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------- 9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
Xxxxx X. Xxxxxxxxxx, CFO (ADDITIONAL FEE)
(optional) [ ]All Debtors [ ]Debtor 1 [ ] Debtor 2
-----------------------------------------------------------------------------------------------------------------------------------
(1)FILING OFFICER COPY NATIONAL FINANCING STATEMENT (FORM UCC 1)(TRANS)(REV. 12/18/95) Prepared by Data File Services, Inc.P.O. Xxx
000 Xxx Xxxx. XX 00000-0000 Tel (000) 000-0000
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5 years
from date of filing.
---------------------------------------------------------------------------------------------------
A. NAME & TEL.# OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT.# (optional)
Phone 000-000-0000 Fax 000-000-0000
---------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Data File Services, Inc.
0092023005731001
X.X. Xxx 000
Xxx Xxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): [ ]LESSOR/LESSEE [ ]CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
-----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) FILED WITH: CALIFORNIA
------------------------------------------------------------------------------------------------------------------------------
la. ENTITY'S NAME
SPECTRIAN CORPORATION, A DELAWARE CORPORATION
OR
------------------------------------------------------------------------------------------------------------------------------
lb. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
000 X. Xxxx Xxxxx Xxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL le. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR
------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
-----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only one secured party name (3a or 3b)
------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR
------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
0000 Xxxxxx Xxxxx Xxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
See Exhibit A attached hereto and made a part hereof by this reference.
-----------------------------------------------------------------------------------------------------------------------------------
5. CHECK [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
BOX Debtor to perfect a security interest (a) in collateral already subject Documentary Documentary stamp
(if applicable) to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtors location was changed to this state, or [ ] [ ]
(b) in accordance with other statuotory provisions (additional data may
be required)
-----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SINGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
SPECTRIAN CORPORATION A DELAWARE CORPORATION Attach Addendum (if applicable)
-----------------------------------------------------------------------------------------------------------------------------------
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------- 9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
Xxxxx X. Xxxxxxxxxx, CFO (ADDITIONAL FEE)
(optional) [ ]All Debtors [ ]Debtor 1 [ ] Debtor 2
-----------------------------------------------------------------------------------------------------------------------------------
(2)ACKNOWLEDGMENT COPY NATIONAL FINANCING STATEMENT (FORM UCC 1)(TRANS)(REV. 12/18/95) Prepared by Data File Services, Inc.P.O. Xxx
000 Xxx Xxxx. XX 00000-0000 Tel (000) 000-0000
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5 years
from date of filing.
---------------------------------------------------------------------------------------------------
A. NAME & TEL.# OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT.# (optional)
Phone 000-000-0000 Fax 000-000-0000
---------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Data File Services, Inc.
0092023005731001
X.X. Xxx 000
Xxx Xxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): [ ]LESSOR/LESSEE [ ]CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
-----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) FILED WITH: CALIFORNIA
------------------------------------------------------------------------------------------------------------------------------
la. ENTITY'S NAME
SPECTRIAN CORPORATION, A DELAWARE CORPORATION
OR
------------------------------------------------------------------------------------------------------------------------------
lb. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
000 X. Xxxx Xxxxx Xxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL le. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR
------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
-----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only one secured party name (3a or 3b)
------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR
------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
0000 Xxxxxx Xxxxx Xxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
See Exhibit A attached hereto and made a part hereof by this reference.
-----------------------------------------------------------------------------------------------------------------------------------
5. CHECK [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
BOX Debtor to perfect a security interest (a) in collateral already subject Documentary Documentary stamp
(if applicable) to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtors location was changed to this state, or [ ] [ ]
(b) in accordance with other statuotory provisions (additional data may
be required)
-----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SINGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
SPECTRIAN CORPORATION A DELAWARE CORPORATION Attach Addendum (if applicable)
-----------------------------------------------------------------------------------------------------------------------------------
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------- 9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
Xxxxx X. Xxxxxxxxxx, CFO (ADDITIONAL FEE)
(optional) [ ]All Debtors [ ]Debtor 1 [ ] Debtor 2
-----------------------------------------------------------------------------------------------------------------------------------
(3)SEARCH REQUEST COPY NATIONAL FINANCING STATEMENT (FORM UCC 1)(TRANS)(REV. 12/18/95) Prepared by Data File Services, Inc.P.O. Xxx
000 Xxx Xxxx. XX 00000-0000 Tel (000) 000-0000
THIS SPACE FOR USE OF FILING OFFICER
FINANCING STATEMENT - FOLLOW INSTRUCTIONS CAREFULLY
This Financing Statement is presented for filing pursuant to the Uniform
Commercial Code and will remain effective, with certain exceptions, for 5 years
from date of filing.
---------------------------------------------------------------------------------------------------
A. NAME & TEL.# OF CONTACT AT FILER (optional) B. FILING OFFICE ACCT.# (optional)
Phone 000-000-0000 Fax 000-000-0000
---------------------------------------------------------------------------------------------------
C. RETURN COPY TO: (Name and Mailing Address)
Data File Services, Inc.
0092023005731001
X.X. Xxx 000
Xxx Xxxx, XX 00000-0000
---------------------------------------------------------------------------------------------------
D. OPTIONAL DESIGNATION (if applicable): [ ]LESSOR/LESSEE [ ]CONSIGNOR/CONSIGNEE [ ] NON-UCC FILING
-----------------------------------------------------------------------------------------------------------------------------------
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) FILED WITH: CALIFORNIA
------------------------------------------------------------------------------------------------------------------------------
la. ENTITY'S NAME
SPECTRIAN CORPORATION, A DELAWARE CORPORATION
OR
------------------------------------------------------------------------------------------------------------------------------
lb. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
000 X. Xxxx Xxxxx Xxxxxxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
1d. S.S. OR TAX I.D.# OPTIONAL le. TYPE OF ENTITY 1f. ENTITY'S STATE 1g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b)
------------------------------------------------------------------------------------------------------------------------------
2a. ENTITY'S NAME
OR
------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
-----------------------------------------------------------------------------------------------------------------------------------
2d. S.S. OR TAX I.D.# OPTIONAL 2e. TYPE OF ENTITY 2f. ENTITY'S STATE 2g. ENTITY'S ORGANIZATIONAL I.D. #, if any
ADD'NL INFO RE OR COUNTRY OF [ ] NONE
ENTITY DEBTOR ORGANIZATION
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
3. SECURED PARTY'S (ORIGINAL S/P OR ITS TOTAL ASSIGNEE) EXACT FULL LEGAL NAME - insert only one secured party name (3a or 3b)
------------------------------------------------------------------------------------------------------------------------------
3a. ENTITY'S NAME
SILICON VALLEY BANK
OR
------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
-----------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE COUNTRY POSTAL CODE
0000 Xxxxxx Xxxxx Xxxxx Xxxxx XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
4. This FINANCING STATEMENT covers the following types or items of property:
See Exhibit A attached hereto and made a part hereof by this reference.
-----------------------------------------------------------------------------------------------------------------------------------
5. CHECK [ ] This FINANCING STATEMENT is signed by the Secured Party instead of the 7. If filed in Florida (check one)
BOX Debtor to perfect a security interest (a) in collateral already subject Documentary Documentary stamp
(if applicable) to a security interest in another jurisdiction when it was brought into stamp tax paid tax not applicable
this state, or when the debtors location was changed to this state, or [ ] [ ]
(b) in accordance with other statuotory provisions (additional data may
be required)
-----------------------------------------------------------------------------------------------------------------------------------
6. REQUIRED SINGNATURE(S) 8. [ ] This FINANCING STATEMENT is to be filed (for record)
(or recorded) in the REAL ESTATE RECORDS
SPECTRIAN CORPORATION A DELAWARE CORPORATION Attach Addendum (if applicable)
-----------------------------------------------------------------------------------------------------------------------------------
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------- 9. Check to REQUEST SEARCH CERTIFICATE(S) on Debtor(s)
Xxxxx X. Xxxxxxxxxx, CFO (ADDITIONAL FEE)
(optional) [ ]All Debtors [ ]Debtor 1 [ ] Debtor 2
-----------------------------------------------------------------------------------------------------------------------------------
(4)DEBTOR COPY NATIONAL FINANCING STATEMENT (FORM UCC 1)(TRANS)(REV. 12/18/95) Prepared by Data File Services, Inc.P.O. Xxx
000 Xxx Xxxx. XX 00000-0000 Tel (000) 000-0000
0092023005733002
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code
-----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING STATEMENT 1A. DATE OF FILING OF ORIG.FINANCING 1B. DATE OF ORIG. FINANCING STATEMENT 1C. PLACE OF
STATEMENT FILING ORIG.
FINANCING
STATEMENT
0000000000 12/10/96 CALIFORNIA
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2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
SPECTRIAN CORPORATION
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2B. MAILING ADDRESS 2C. CITY. STATE 2D. ZIP CODE
000 X. Xxxx Xxxxx Xxxxxxxxx, XX 00000
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3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
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3B. MAILING ADDRESS 3C. CITY,STATE 3D. ZIP CODE
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4. SECURED PARTY SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME SILICON VALLEY BANK 4A. OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 0000 Xxxxxx Xxxxx
XXXX Xxxxx Xxxxx XXXXX XX ZIP CODE 95054
-----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
6. A [ ] CONTINUATION- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file num-
ber and date shown above is continued. If collateral is crops or timber, check here and insert description of real
property on which growing or to be grown in item 7 below. [ ]
B [ ] RELEASE- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
C [ ] ASSIGNMENT- The Secured Party certifies that the Secured Party has assigned to the Assignee above named, the Secured
Party's rights under the Financing Statement bearing the file number shown above in the collateral described in Item
7 below.
D [ ] TERMINATION- The Secured Party certifies that the Secured Party no longer claims a security interest under Financing
Statement bearing the file number shown above.
E [X] AMENDMENT- The Financing Statement bearing the file number shown above is amended as set forth in Item 7 below.
(Signature of Debtor required on all amendments.)
F [ ] OTHER Amendment
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7. Debtor's name is hereby amended to: SPECTRIAN CORPORATION, a Delaware corporation
Collateral is amended to include Exhibit A attached hereto.
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C 9. This Space Use of Filing Officer
8. O
(DATE) __________________________ 19 __________ D (Date, Time, Filing Office)
E
SPECTRIAN CORPORATION
/s/ Xxxxx X. Xxxxxxxxxx
___________________________________________________________________ 1
By: Xxxxx X. Xxxxxxxxxx CFO
___________________________________________________________________ 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
SILICON VALLEY BANK 3
___________________________________________________________________ 4
BY: _______________________________________________________________ 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
6
------------------------------------------------------------------------------
10. Return Copy to 7
NAME Data File Services, Inc.
XXXXXXX X.X. Xxx 000 0
XXXX XXX Xxx Xxxx Phone 000-000-0000
STATE CA 9
00000-0000 Fax 818909-4717
Uniform Commercial Code Form UCC-2
(1) FILING OFFICER COPY Prepared with UCC Direct for Windows Data File Services, Inc., X.X. Xxx 000, Xxx Xxxx, XX, 00000.0000
Tel (000) 000-0000
0092023005733002
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code
-----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING STATEMENT 1A. DATE OF FILING OF ORIG.FINANCING 1B. DATE OF ORIG. FINANCING STATEMENT 1C. PLACE OF
STATEMENT FILING ORIG.
FINANCING
STATEMENT
0000000000 12/10/96 CALIFORNIA
-----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
SPECTRIAN CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY. STATE 2D. ZIP CODE
000 X. Xxxx Xxxxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
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3B. MAILING ADDRESS 3C. CITY,STATE 3D. ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME SILICON VALLEY BANK 4A. OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 0000 Xxxxxx Xxxxx
XXXX Xxxxx Xxxxx XXXXX XX ZIP CODE 95054
-----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
6. A [ ] CONTINUATION- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file num-
ber and date shown above is continued. If collateral is crops or timber, check here and insert description of real
property on which growing or to be grown in item 7 below. [ ]
B [ ] RELEASE- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
C [ ] ASSIGNMENT- The Secured Party certifies that the Secured Party has assigned to the Assignee above named, the Secured
Party's rights under the Financing Statement bearing the file number shown above in the collateral described in Item
7 below.
D [ ] TERMINATION- The Secured Party certifies that the Secured Party no longer claims a security interest under Financing
Statement bearing the file number shown above.
E [X] AMENDMENT- The Financing Statement bearing the file number shown above is amended as set forth in Item 7 below.
(Signature of Debtor required on all amendments.)
F [ ] OTHER Amendment
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7. Debtor's name is hereby amended to: SPECTRIAN CORPORATION, a Delaware corporation
Collateral is amended to include Exhibit A attached hereto.
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C 9. This Space Use of Filing Officer
8. O
(DATE) __________________________ 19 __________ D (Date, Time, Filing Office)
E
SPECTRIAN CORPORATION
/s/ Xxxxx X. Xxxxxxxxxx
___________________________________________________________________ 1
By: Xxxxx X. Xxxxxxxxxx CFO
___________________________________________________________________ 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
SILICON VALLEY BANK 3
___________________________________________________________________ 4
BY: _______________________________________________________________ 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
6
------------------------------------------------------------------------------
10. Return Copy to 7
NAME Data File Services, Inc.
XXXXXXX X.X. Xxx 000 0
XXXX XXX Xxx Xxxx Phone 000-000-0000
STATE CA 9
00000-0000 Fax 818909-4717
Uniform Commercial Code Form UCC-2
(2) FILING OFFICER COPY Prepared with UCC Direct for Windows Data File Services, Inc., X.X. Xxx 000, Xxx Xxxx, XX, 00000.0000
ACKNOWLEDGEMENT Tel (000) 000-0000
0092023005733002
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code
-----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING STATEMENT 1A. DATE OF FILING OF ORIG.FINANCING 1B. DATE OF ORIG. FINANCING STATEMENT 1C. PLACE OF
STATEMENT FILING ORIG.
FINANCING
STATEMENT
0000000000 12/10/96 CALIFORNIA
-----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
SPECTRIAN CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY. STATE 2D. ZIP CODE
000 X. Xxxx Xxxxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
-----------------------------------------------------------------------------------------------------------------------------------
3B. MAILING ADDRESS 3C. CITY,STATE 3D. ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME SILICON VALLEY BANK 4A. OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 0000 Xxxxxx Xxxxx
XXXX Xxxxx Xxxxx XXXXX XX ZIP CODE 95054
-----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
6. A [ ] CONTINUATION- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file num-
ber and date shown above is continued. If collateral is crops or timber, check here and insert description of real
property on which growing or to be grown in item 7 below. [ ]
B [ ] RELEASE- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
C [ ] ASSIGNMENT- The Secured Party certifies that the Secured Party has assigned to the Assignee above named, the Secured
Party's rights under the Financing Statement bearing the file number shown above in the collateral described in Item
7 below.
D [ ] TERMINATION- The Secured Party certifies that the Secured Party no longer claims a security interest under Financing
Statement bearing the file number shown above.
E [X] AMENDMENT- The Financing Statement bearing the file number shown above is amended as set forth in Item 7 below.
(Signature of Debtor required on all amendments.)
F [ ] OTHER Amendment
-----------------------------------------------------------------------------------------------------------------------------------
7. Debtor's name is hereby amended to: SPECTRIAN CORPORATION, a Delaware corporation
Collateral is amended to include Exhibit A attached hereto.
-----------------------------------------------------------------------------------------------------------------------------------
C 9. This Space Use of Filing Officer
8. O
(DATE) __________________________ 19 __________ D (Date, Time, Filing Office)
E
SPECTRIAN CORPORATION
/s/ Xxxxx X. Xxxxxxxxxx
___________________________________________________________________ 1
By: Xxxxx X. Xxxxxxxxxx CFO
___________________________________________________________________ 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
SILICON VALLEY BANK 3
___________________________________________________________________ 4
BY: _______________________________________________________________ 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
6
------------------------------------------------------------------------------
10. Return Copy to 7
NAME Data File Services, Inc.
XXXXXXX X.X. Xxx 000 0
XXXX XXX Xxx Xxxx Phone 000-000-0000
STATE CA 9
00000-0000 Fax 818909-4717
Uniform Commercial Code Form UCC-2
(3) FILING OFFICER COPY Prepared with UCC Direct for Windows Data File Services, Inc., X.X. Xxx 000, Xxx Xxxx, XX, 00000.0000
SECURED PARTY Tel (000) 000-0000
0092023005733002
This STATEMENT is presented for filing pursuant to the California Uniform Commercial Code
-----------------------------------------------------------------------------------------------------------------------------------
1. FILE NO. OF ORIG. FINANCING STATEMENT 1A. DATE OF FILING OF ORIG.FINANCING 1B. DATE OF ORIG. FINANCING STATEMENT 1C. PLACE OF
STATEMENT FILING ORIG.
FINANCING
STATEMENT
0000000000 12/10/96 CALIFORNIA
-----------------------------------------------------------------------------------------------------------------------------------
2. DEBTOR (LAST NAME FIRST) 2A. SOCIAL SECURITY NO., FEDERAL TAX NO.
SPECTRIAN CORPORATION
-----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY. STATE 2D. ZIP CODE
000 X. Xxxx Xxxxx Xxxxxxxxx, XX 00000
-----------------------------------------------------------------------------------------------------------------------------------
3. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST) 3A. SOCIAL SECURITY OR FEDERAL TAX NO.
-----------------------------------------------------------------------------------------------------------------------------------
3B. MAILING ADDRESS 3C. CITY,STATE 3D. ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME SILICON VALLEY BANK 4A. OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS 0000 Xxxxxx Xxxxx
XXXX Xxxxx Xxxxx XXXXX XX ZIP CODE 95054
-----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL TAX NO.
NAME OR BANK TRANSIT AND A.B.A. NO.
MAILING ADDRESS
CITY STATE ZIP CODE
-----------------------------------------------------------------------------------------------------------------------------------
6. A [ ] CONTINUATION- The original Financing Statement between the foregoing Debtor and Secured Party bearing the file num-
ber and date shown above is continued. If collateral is crops or timber, check here and insert description of real
property on which growing or to be grown in item 7 below. [ ]
B [ ] RELEASE- From the collateral described in the Financing Statement bearing the file number shown above, the Secured
Party releases the collateral described in item 7 below.
C [ ] ASSIGNMENT- The Secured Party certifies that the Secured Party has assigned to the Assignee above named, the Secured
Party's rights under the Financing Statement bearing the file number shown above in the collateral described in Item
7 below.
D [ ] TERMINATION- The Secured Party certifies that the Secured Party no longer claims a security interest under Financing
Statement bearing the file number shown above.
E [X] AMENDMENT- The Financing Statement bearing the file number shown above is amended as set forth in Item 7 below.
(Signature of Debtor required on all amendments.)
F [ ] OTHER Amendment
-----------------------------------------------------------------------------------------------------------------------------------
7. Debtor's name is hereby amended to: SPECTRIAN CORPORATION, a Delaware corporation
Collateral is amended to include Exhibit A attached hereto.
-----------------------------------------------------------------------------------------------------------------------------------
C 9. This Space Use of Filing Officer
8. O
(DATE) __________________________ 19 __________ D (Date, Time, Filing Office)
E
SPECTRIAN CORPORATION
/s/ Xxxxx X. Xxxxxxxxxx
___________________________________________________________________ 1
By: Xxxxx X. Xxxxxxxxxx CFO
___________________________________________________________________ 2
SIGNATURE(S) OF DEBTOR(S) (TITLE)
SILICON VALLEY BANK 3
___________________________________________________________________ 4
BY: _______________________________________________________________ 5
SIGNATURE(S) OF SECURED PARTY(IES) (TITLE)
6
------------------------------------------------------------------------------
10. Return Copy to 7
NAME Data File Services, Inc.
XXXXXXX X.X. Xxx 000 0
XXXX XXX Xxx Xxxx Phone 000-000-0000
STATE CA 9
00000-0000 Fax 818909-4717
Uniform Commercial Code Form UCC-2
(4) FILING OFFICER COPY Prepared with UCC Direct for Windows Data File Services, Inc., X.X. Xxx 000, Xxx Xxxx, XX, 00000.0000
DEBTOR Tel (000) 000-0000
EXHIBIT A-1
LIBOR SUPPLEMENT
TO
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This LIBOR Supplement to Amended and Restated Loan and Security
Agreement (the "Supplement") is a supplement to Amended and Restated Loan and
Security Agreement (the "Loan Agreement") dated as of August 9, 1999 between
Silicon Valley Bank ("Bank") and Spectrian Corporation ("Borrower"), and forms a
part of and is incorporated into the Loan Agreement.
1. Definitions.
"Business Day" means a day of the year (a) that is not a Saturday,
Sunday or other day on which banks in the State of California or the City of
London are authorized or required to close and (b) on which dealings are carried
on in the interbank market in which Bank customarily participates.
"Interest Period" means for each LIBOR Rate Loan, a period of
approximately one, three or six months as the Borrower may elect, provided that
the last day of an Interest Period for a LIBOR Rate Loan shall be determined in
accordance with the practices of the LIBOR interbank market as from time to time
in effect, provided, further, in all cases such period shall expire not later
than the applicable Revolving Maturity Date.
"Interest Rate" shall mean as to: (a) Prime Rate Loans, a rate per
annum equal to the Prime Rate; and (b) LIBOR Rate Loans a rate of 200 basis
points in excess of the LIBOR Rate (based on the LIBOR Rate applicable for the
Interest Period selected by the Borrower).
"LIBOR Base Rate" means, for any Interest Period for a LIBOR Rate Loan,
the rate of interest per annum determined by Bank to be the per annum rate of
interest as which deposits in United States Dollars are offered to Bank in the
London interbank market in which Bank customarily participates at 11:00 A.M.
(local time in such interbank market) two (2) Business Days before the first day
of such Interest Period for a period approximately equal to such Interest Period
and in an amount approximately equal to the amount of such Loan.
"LIBOR Rate" shall mean, for any Interest Period for a LIBOR Rate Loan,
a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
equal to (i) the LIBOR Base Rate for such Interest Period divided by (ii) I
minus the Reserve Requirement for such Interest Period.
"LIBOR Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the LIBOR Rate in accordance with the terms hereof.
"Prime Rate" means the variable rate of interest per annum, most
recently announced by Bank as its "prime rate," whether or not such announced
rate is the lowest rate available from Bank. The interest rate applicable to the
Prime Rate Loans shall change on each date there is a change in the Prime Rate.
"Prime Rate Loans" means any Loans made or a portion thereof on which
interest is payable based on the Prime Rate in accordance with the terms hereof.
"Regulatory Change" means, with respect to Bank, any change on or after
the date of this Loan Agreement in United States federal, state or foreign laws
or regulations, including Regulation D, or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
lenders including Bank of or under any United States federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reserve Requirement" means, for any Interest Period, the average
maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D against "Eurocurrency liabilities" (as such term is used in
2
Regulation D) by member banks of the Federal Reserve System. Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by Bank by reason of any Regulatory Change
against (i) any category of liabilities which includes deposits by reference to
which the LIBOR Rate is to be determined as provided in the definition of "LIBOR
Base Rate" or (ii) any category of extensions of credit or other assets which
include Loans. -
2. Requests for Loans; Confirmation of Initial Loans. Each LIBOR Rate
Loan shall be made upon the irrevocable written request of Borrower received by
Bank not later than 11:00 a.m. (Santa Clara, California time) on the Business
Day three (3) Business Days prior to the date such Loan is to be made. Each such
notice shall specify the date such Loan is to be made, which day shall be a
Business Day; the amount of such Loan, the Interest Period for such Loan, and
comply with such other requirements as Bank determines are reasonable or
desirable in connection therewith.
Each written request for a LIBOR Rate Loan shall be in the form of a
LIBOR Rate Loan Borrowing Certificate as set forth on Exhibit A, which shall be
duly executed by the Borrower.
Each Prime Rate Loan shall be made upon the irrevocable written request
of Borrower received by Bank not later than 11:00 a.m. (Santa Clara, California
time) on the Business Day one (1) Business day prior to the date such Loan is to
be made. Each such notice shall specify the date such Loan is to be made, which
day shall be a Business Day and the amount of such Loan, and comply with such
other requirements as Bank determines are reasonable or desirable in connection
therewith.
3. Conversion/Continuation of Loans.
(a) Borrower may from time to time submit in writing a request that
Prime Rate Loans be converted to LIBOR Rate Loans or that any existing LIBOR
Rate Loans continue for an additional Interest Period. Such request shall
specify the amount of the Prime Rate Loans which will constitute LIBOR Rate
Loans (subject to the limits set forth below) and the Interest Period to be
applicable to such LIBOR Rate Loans. Each written request for a conversion to a
LIBOR Rate Loan or a continuation of a LIBOR Rate Loan shall be substantially in
the form of a LIBOR Rate Conversion/Continuation Certificate as set forth on
Exhibit B, which shall be duly executed by the Borrower. Subject to the terms
and conditions contained herein, three (3) Business Days after Bank's receipt of
such a request from Borrower, such Prime Rate Loans shall be converted to LIBOR
Rate Loans or such LIBOR Rate Loans shall continue, as the case may be provided
that:
(i) no Event of Default or event which with notice or passage of time
or both would constitute an Event of Default exists;
(ii) no party hereto shall have sent any notice of termination of this
Supplement or of the Loan Agreement.
(iii) Borrower shall have complied with such customary procedures as
Bank has established from time to time for Borrower's requests for LIBOR Rate
Loans
(iv) the amount of a LIBOR Rate Loan shall be $500,000 or such greater
amount which is an integral multiple of $50,000; and
(v) Bank shall have determined that the interest Period or L1BOR Rate
is available to Bank which can be readily determined as of the date of the
request for such LIBOR Rate Loan.
Any request by Borrower to convert Prime Rate Loans to LIBOR Rate Loans
or continue any existing LIBOR Rate Loans shall be irrevocable. Notwithstanding
anything to the contrary contained herein, Bank shall not be required to
purchase United States Dollar deposits in the London interbank market or other
applicable LIBOR Rate market to fund any LIBOR Rate Loans, but the provisions
hereof shall be deemed to apply as if Bank had purchased such deposits to fund
the LIBOR Rate Loans.
3
(b) Any LIBOR Rate Loans shall automatically convert to Prime Rate
Loans upon the last day of the applicable Interest Period, unless Bank has
received and approved a complete and proper request to continue such L1BOR Rate
Loan at least three (3) Business Days prior to such last day in accordance with
the terms hereof. Any LIBOR Rate Loans shall, at Bank's option, convert to Prime
Rate Loans in the event that (i) an Event of Default, or event which with the
notice or passage of time or both would constitute an Event of Default, shall
exist, (ii) this Supplement or the Loan Agreement shall terminate, or (iii) the
aggregate principal amount of the Prime Rate Loans which have previously been
converted to LIBOR Rate Loans, or the aggregate principal amount of existing
LIBOR Rate Loans continued, as the case may be, at the beginning of an Interest
Period shall at any time during such Interest Period exceeds the Committed Line.
Borrower agrees to pay to Bank, upon demand by Bank (or Bank may, at its option,
charge Borrower's loan account) any amounts required to compensate Bank for any
loss (including loss of anticipated profits), cost or expense incurred by such
person, as a result of the conversion of LIBOR Rate Loans to Prime Rate Loans
pursuant to any of the foregoing.
(c) On all Loans, Interest shall be payable by Borrower to Bank monthly
in arrears not later than the 1st day of each calendar month at the applicable
Interest Rate.
4. Additional Requirements/Provisions Regarding LIBOR Rate Loans; Etc.
(a) If for any reason (including voluntary or mandatory prepayment or
acceleration), Bank receives all or part of the principal amount of a LIBOR Rate
Loan prior to the last day of the Interest Period for such Loan, Borrower shall
immediately notify Borrower's account officer at Bank and, on demand by Bank,
pay Bank the amount (if any) by which (i) the additional interest which would
have been payable on the amount so received had it not been received until the
last day of such Interest Period exceeds (ii) the interest which would have been
recoverable by Bank by placing the amount so received on deposit in the
certificate of deposit markets or the offshore currency interbank markets or
United States Treasury investment products, as the case may be, for a period
starting on the date on which it was so received and ending on the last day of
such interest Period at the interest rate determined by Bank in its reasonable
discretion. Bank's determination as to such amount shall be conclusive absent
manifest error.
(b) Borrower shall pay to Bank, upon demand by Bank, from time to time
such amounts as Bank may determine to be necessary to compensate it for any
costs incurred by Bank that Bank determineS are attributable to its making or
maintaining of any amount receivable by Bank hereunder in respect of any Loans
relating thereto (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), in each case resulting from any
Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to
Bank under this Supplement in respect of any Loans (other than changes which
affect taxes measured by or imposed on the overall net income of Bank by the
jurisdiction in which such Bank has its principal office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of Bank (including any Loans or any
deposits referred to in the definition of "LIBOR Base Rate"); or
(iii) imposes any other condition affecting this Supplement
(or any of such extensions of credit or liabilities).
Bank will notify Borrower of any event occurring after the date of the Loan
Agreement which will entitle Bank to compensation pursuant to this section as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. Bank will furnish Borrower with a statement setting
forth the basis and amount of each request by Bank for compensation under this
Section 4. Determinations and allocations by Bank for purposes of this Section 4
of the effect of any Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate Bank in respect of any Additional Costs, shall be conclusive absent
manifest error.
4
(c) Borrower shall pay to Bank, upon the request of Bank, such amount
or amounts as shall be sufficient (in the sole good faith opinion of such Bank)
to compensate it for any loss, costs or expense incurred by it as a result of
any failure by Borrower to borrow a Loan on the date for such borrowing
specified in the relevant notice of borrowing hereunder.
(d) If Bank shall determine that the adoption or implementation of any
applicable law, rule, regulation or treaty regarding capital adequacy, or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Bank (or its
applicable lending office) with any respect or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on capital of Bank or any person or entity controlling Bank (a "Parent")
as a consequence of its obligations hereunder to a level below that which Bank
(or its Parent) could have achieved but for such adoption, change or compliance
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by Bank to be material, then from time to time, within 15 days
after demand by Bank, Borrower shall pay to Bank such additional amount or
amounts as will compensate Bank for such reduction. A statement of Bank claiming
compensation under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive absent manifest error.
(e) If at any time Bank, in its sole and absolute discretion,
determines that: (i) the amount of the LIBOR Rate Loans for periods equal to the
corresponding Interest Periods are not available to Bank in the offshore
currency interbank markets, or (ii) the LIBOR Rate does not accurately reflect
the cost to Bank of lending the LIBOR Rate Loan, then Bank shall promptly give
notice thereof to Borrower, and upon the giving of such notice Bank's obligation
to make the LIBOR Rate Loans shall terminate, unless Bank and the Borrower agree
in writing to a different interest rate Loans shall terminate, unless Bank and
the Borrower agree in writing to a different interest rate applicable to LIBOR
Rate Loans. If it shall become unlawful for Bank to continue to fund or maintain
any Loans, or to perform its obligations hereunder, upon demand by Bank,
Borrower shall prepay the Loans in full with accrued interest thereon and all
other amounts payable by Borrower hereunder (including, without limitation, any
amount payable in connection with such prepayment pursuant to Section 4(a)).
5
