Silicon Valley Bank
0000 Xxxxxx Xxxxx/XX 000
Xxxxx Xxxxx, XX 00000
(000) 000-0000 - Fax (000) 000-0000
This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the "Agreement"),
dated as of June 25, 2001, is between Silicon Valley Bank, ("Buyer') and
MARIMBA, INC., a DELAWARE corporation, ("Seller), with its chief executive
office at:
Street Address: 000 XXXXX XXXXXX
Xxxx: XXXXXXXX XXXX
Xxxxxx: SANTA XXXXX
State: CALIFORNIA
Zip code: 94043
Fax: (000) 000-0000
1. Definitions. In this Agreement:
1.1 "Payment" is when Buyer has received payments equal to the
Total Purchased Receivables.
1.2 "Purchased Receivables" is all accounts, receivables,
instruments, contract rights, documents, general intangibles, other rights to
payment and all proceeds arising from the invoices and other agreements on the
Schedule.
1.3 "Schedule" is the attached schedule showing the: Purchase
Date, Due Date, Total Purchased Receivables, Discount Rate, Purchase Price,
Administrative Fee and any other fees.
2. Purchase and Sale of Receivables.
2.1 Sale and Purchase. On the Purchase Date, Seller sells and
Buyer buys Seller's right, title, and interest (but none of Sellers obligations)
to payment from any person liable on a Purchased Receivable, ("Account
Debtors").
Each purchase and sale is at Buyer's and Seller's discretion.
Buyer will not (i) pay Seller an aggregate outstanding amount exceeding FIVE
MILLION DOLLARS or (ii) buy any Purchased Receivable after June 24, 2002 (the
"Maturity Date"). Each purchase and sale will be on a Schedule form acceptable
to Buyer.
2.2 Payment of Purchase Price and Late Payment.
(a) Payment of Purchase Price. For each Purchased
Receivable, Buyer will pay Seller, on the Purchase Date, the Purchase Price,
less the Administrative Fee and reasonable legal fees (if any).
(b) Late Payment. If Payment is made after the Due Date, as
listed on the Schedule, then on the earlier of Payment or 180 days, Seller will
also pay Buyer the product of the Discount Rate and the average daily balance of
the unpaid Purchased Receivable multiplied by the
number of days between the due date or the earlier of the date of actual payment
or 180 days after the due date, divided by 360.
2.3 Seller may not sell or convey any interest in Related
Property without Buyer's prior written consent. Seller will sign UCC financing
tatements and any other instruments or documents to evidence, perfect or
protect Buyer's interests in the Purchased Receivables and Related Property.
Seller will deliver to Buyer all original instruments, chattel paper and
documents about Purchased Receivables and Related Property.
3. Collections, Payments and Remittances.
3.1 Application of Payments. All payments for any Purchased
Receivable, received by Seller or Buyer, are Buyer's property.
3.2 Collection by Seller.
(a) Buyer appoints Seller its attorney-in-fact to receive
payments and enforce its rights and designates Seller it's assignee for
collection. Seller will use diligence and commercially reasonable means to
collect Purchased Receivables. Buyer may revoke these appointments at any time.
(b) Seller may begin legal proceedings about Purchased
Receivables in its name (as Buyer's assignee for collection or enforcement) or,
with Buyer's prior written consent, in Buyer's name. Seller will not make Buyer
party to any litigation or arbitration without Buyer's written consent.
(c) Seller will hold in trust for and give Buyer: (i) all
payments made by Account Debtors, and (ii) all instruments, chattel paper and
other proceeds of the Purchased Receivables.
(d) Unless an Event of Repurchase occurs and continues,
Seller will remit payments to Buyer on the last business day of each week
("Seftlement Date") starting the week after the Purchase Date. On each
Settlement Date Seller will deliver a report acceptable to Buyer of account
activity (including dates and amounts of payments) and changes for each
Purchased Receivable.
3.3 No Obligation to Take Action. Buyer has a right, but no
obligation, to perform Seller's obligations or to take action on any Purchased
Receivable (including on defaulted Purchased Receivables).
4. Non-Recourse; Repurchase Obligations.
4.1 Non-Recourse and Seller's Agreement to Repurchase. Buyer
acquires Purchased Receivables without recourse, except Seller will, at Buyer's
option, repurchase from Buyer any Purchased Receivable for a purchase price
equal to the portion of any unpaid Purchased Receivable:
(a) For which there has been any breach of warranty,
representation or covenant in this Agreement; or
(b) For which the Account Debtor asserts any discount,
allowance, return, dispute, defense, right of recoupment, right of return,
warranty claim, or short payment.
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4.2 Payment to Buyer. Seller will pay Buyer in immediately
available funds.
5. Representations, Warranties and Covenants.
5.1 Purchased Receivables - Warranties, Representations and
Covenants. Seller represents, warrants and covenants for each Purchased
Receivable:
(a) It is the owner with legal right to sell, transfer and
assign it;
(b) The correct amount is on the Schedule and is not
disputed;
(c) No payment is contingent on any obligation or contract,
and it has fulfilled all its obligations as of the Purchase Date;
(d) It is based on actual sale and delivery of goods and/or
services rendered, due no later than its Due Date and owing to Seller, it is not
past due or in default, has not been previously sold, assigned, transferred, or
pledged, and is free of any liens, security interests and encumbrances;
(e) There are no defenses, offsets, counterclaims or
agreements in which the Account Debtor may claim any deduction or discount;
(f) It reasonably believes no Account Debtor is insolvent as
defined in the United States Bankruptcy Code ('US Code") or the California
Uniform Commercial Code ("UCC") and no Account Debtor has filed or had filed
against it a voluntary or involuntary petition for relief under the US Code.;
and-
(g) No Account Debtor has objected in writing to payment for
or the quality or quantity of the subject of the Purchased Receivable.
5.2 Additional Warranties, Representations and Covenants.
Seller represents, warrants and covenants:
(a) its name, form of organization, chief executive office,
and the place where the records about all Purchased Receivables are kept is
shown at the beginning of this Agreement and it will give Buyer at least 10 days
prior written notice of changes to its name, organization, chief executive
office or location of records.
(b) It has not filed a voluntary petition or had filed
against it an involuntary petition under the US Code and does not anticipate any
filing;
(c) If Payment of any Purchased Receivable does not occur by
its Due Date then Seller will provide a written report, within 1 0 days, of the
reasons for the delay.
6. Adjustments. If any Account Debtor asserts a discount,
allowance, return, offset, defense, warranty claim, or the like (an "Adjustment)
Seller will promptly advise Buyer and, if Buyer does not object Seller will have
90 days to resolve the dispute.
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7. Indemnification.
(a) If any Account Debtor is released from any payment
obligation for any Purchased Receivable because of- (i) Seller's act or
omission; or (ii) any of the documentation about the Purchased Receivables which
results in termination of any part of the Account Debtor's obligation for the
Purchased Receivables, then Seller will pay Buyer the lesser of the amount of
the Purchased Receivable not payable or the unpaid portion of the Purchased
Receivable.
(b) Seller indemnifies and holds Buyer harmless from any
taxes 1rom this transaction (except Buyer's income taxes) and costs, expenses
and reasonable attorney fees if Buyer promptly notifies it of any taxes of which
Buyer has notice.
8. Repurchase Events. Any of the following is an Event of
Repurchase:
(a) Seller fails to pay Buyer any amount when due under
Section 2.2(b),3.2(c), 3.2(d), 4.1, 7 or 10;
(b) An involuntary lien, garnishment, attachment or the like
is issued against or attaches to the Purchased Receivables; and
(c) Seller breaches a covenant, agreement, warranty, or
representation in this Agreement and the breach is not cured to Buyer's
satisfaction within 10 days after Buyer gives Seller oral or written notice. A
breach that cannot be cured is an immediate default.
9. Repurchase Option. When an Event of Repurchase occurs Buyer
shall have a right to require Seller to repurchase all of the affected Purchased
Receivables for a purchase price equal to the amount(s) specified in Section
4.1. Buyer shall also have all rights and remedies under this Agreement and the
law, including those of a secured party under the UCC, and the right to collect,
dispose of, sell, lease or use all Purchased Receivables and Related Property.
10. Fees, Costs and Expenses. Promptly on demand Seller will pay
all reasonable fees, costs and expenses (including attorney and professional
fees) that Buyer incurs from (a) preparing, negotiating, administering and
enforcing this Agreement or any other agreement related hereto, including
amendments, waivers or consents, (b) litigation or disputes relating to the
Purchased Receivables, this Agreement or any other agreement related hereto, (c)
enforcing rights against Seller, (d) protecting or enforcing its title to the
Purchased Receivables or its security interest in the Purchased Receivables, (e)
collecting any amounts due from Seller hereunder or for a Purchased Receivable
under a breach of Seller's representation, warranty or covenant and (f) any
bankruptcy case or insolvency proceeding involving Seller. Reimbursement for
fees, costs, and expenses through the initial Purchase Date will be limited to
$5,000.00.
11. Choice of Law, Venue and Jury Trial Waiver. California law
governs this Agreement. Seller and Buyer each submit to the exclusive
jurisdiction of the State and Federal courts in Santa Xxxxx County, California.
SELLER AND BUYER EACH WAIVE ITS RIGHT TO A JURY TRIAL FROM ANY CAUSE OF ACTION
RELATED TO AGREEMENT, INCLUDING CONTRACT, TORT, BREACH OF DUTY OR OTHER CLAIM.
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO
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ENTER THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. Notices. Notices or demands by either party about this
Agreement must be in writing and personally delivered or sent by an overnight
delivery service, by certified mail postage prepaid return receipt requested, or
by FAX to the addresses below:
Seller: Marimba, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Legal Department
FAX: (000) 000-0000
Buyer: Silicon Valley Bank
0000 Xxxxxx Xxxxx
XX 000
Xxxxx Xxxxx, XX 00000
Attn: Credit Manager
FAX: (000) 000-0000
A party may change notice address by written notice to the other party.
13. General Provisions.
13.1 Successors and Assigns. This Agreement binds and is for
the benefit of successors and permitted assigns of each party. Seller may not
assign this Agreement or any rights under it without Buyer's prior written
consent which may be granted or withheld in Buyer's discretion. Buyer may,
without the consent of or notice to Seller, sell, transfer, or grant
participation in any part of Buyer's obligations, rights or benefits under this
Agreement.
13.2 Indemnification. Seller will indemnify, defend and hold
harmless Buyer and its officers, employees, and agents against: (a) obligations,
demands, claims, and liabilities asserted by any other party in connection with
the transactions contemplated by this Agreement; and (b) losses or expenses
incurred, or paid by Seller from or consequential to transactions between Buyer
and Seller (including reasonable attorneys fees and expenses), except for
obligations, demands, claims, liabilities, and losses caused by Buyer's gross
negligence or willful misconduct.
13.3 Time of Essence. Time is of the essence for performance of
all obligations in this Agreement.
13.4 Severability of Provision. Each provision of this Agreement
is severable from every other provision in determining the enforceability of any
provision.
13.5 Amendments in Writing, Integration. All amendments to this
Agreement must be in writing. This Agreement is the entire agreement about this
subject matter and supersedes prior negotiations or agreements.
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13.6 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts and when
executed and delivered are one Agreement.
13.7 Survival. All covenants, representations and warranties
made in this Agreement continue in full force while any Purchased Receivable
amount remains outstanding. Seller's indemnification obligations survive until
all statutes of limitations for actions that may be brought against Buyer have
run.
13.8 Confidential Information. Buyer will use the same degree
of care in handling Seller's confidential information that it uses for its own
proprietary information, but may disclose information; (i) to its subsidiaries
or affiliates in connection with their business with Seller, (ii) to prospective
transferees or purchasers of any interest in the Agreement, (iii) as required by
law, regulation, subpoena, or other order, (iv) as required in connection with
an examination or audit and (v) as it considers appropriate exercising the
remedies under this Agreement. Confidential information does not include
information that is either: (a) in the public domain or in Buyer's possession
when disclosed without an obligation of confidentiality, or becomes part of the
public domain after disclosure to Buyer at no fault of buyer; or (b) disclosed
to Buyer by a third party, if Buyer does not know that the third party is
prohibited from disclosing the information.
SELLER: MARIMBA, INC.,
a DELAWARE corporation
By /s/ Xxx Xxxxxx
Title CFO
BUYER: SILICON VALLEY BANK
By /s/ Xxx Xxxxxxx
Title Sr. Vice President
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SCHEDULE DATED_________
TO
NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT
DATED AS OF June 28.2001
Seller: Marimba, Inc.
Buyer: Specialty Finance Division, a division of Silicon Valley Bank
Purchase Date:
Due Date:
Total Purchased
Receivables:
Discount Rate: _______%
Purchase Price: $_______ (is_____% of the Total Purchased Receivables which
Is the Straight Discount of the Total Purchased Receivables
discounted from the Due Date to the Purchase Date at the
Discount Rate).
Administrative Fee: 0.15% for Domestic Receivables
0.25% for Domestic Invoices with discount periods greater
then 90-days.
0.35% for Foreign Receivables
0.45% for Foreign Invoices with discount periods greater
then 90 days.
Seller warrants and represents that (a) its warranties and representations in
the Agreement are true and correct as of the date of this Schedule and (b) no
Event of Repurchase has occurred under the Agreement.
Seller: Marimba, Inc.
By:
Title:
BUYER: SPECIALTY FINANCE DIVISION,
A division of Silicon Valley Bank
By:
Title:
