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SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated
as of November 10, 2000 is between Silicon Valley Bank, Specialty Finance
Division of ("Bank"), and AML Communications, Inc. a Delaware corporation,
("Borrowed"), whose address is 0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
and with a FAX number of (000) 000-0000.
1. DEFINITIONS. In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract
rights, and other obligations owed Borrower in connection with its sale or lease
of goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ACCOUNT DEBTOR" is defined in the California Uniform Commercial Code
and shall include any person liable on any Financed Receivable, such as, a
guarantor of the Financed Receivable and any issuer of a letter of credit or
banker's acceptance.
"ADJUSTMENTS" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"ADVANCE" is defined in Section 2.2.
"ADVANCE RATE" is 80%, net of deferred revenue and offsets related to
each specific Account Debtor, or another percentage as Bank establishes under
Section 2.2.
"APPLICABLE RATE" is a rate per annum equal to the "Prime Rate" plus
1.00 percentage points.
"BORROWER'S BOOKS" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"CODE" is the California Uniform Commercial Code.
"COLLATERAL" is attached as Exhibit "A".
"COLLATERAL HANDLING FEE" is defined in Section 3.5.
"COLLECTIONS" are all funds received by Bank from or on behalf of an
Account Debtor for Financed Receivables.
"COMPLIANCE CERTIFICATE" is attached as Exhibit "B".
"EARLY TERMINATION FEE" is defined in Section 3.6.
"EVENT OF DEFAULT" is defined in Section 9.
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"FACILITY" is an extension of credit by Bank to Borrower in order to
finance receivables with an aggregate Account Balance not exceeding the Facility
Amount.
"FACILITY AMOUNT" is $1,000,000.00.
"FACILITY FEE" is defined in Section 3.4.
"FACILITY PERIOD" is the period beginning on this date and continuing
until November 9, 2001, unless the period is terminated sooner by Bank with
notice to Borrower or by Borrower under Section 3.5.
"FINANCE CHARGES" is defined in Section 3.2.
"FINANCED RECEIVABLES" are all those accounts, receivables, chattel
paper, instruments, contract rights, documents, general intangibles, letters of
credit, drafts, bankers acceptances, and rights to payment, and all proceeds,
including their proceeds (collectively "receivables"), which Bank finances and
make an Advance. A Financed Receivable stops being a Financed Receivable (but
remains Collateral) when the Advance made for the Financed Receivable has been
finally paid.
"FINANCED RECEIVABLE BALANCE" is the total outstanding amount, at any
time, of all Financed Receivables.
"GUARANTOR" means any guarantor of the Obligations.
"INELIGIBLE RECEIVABLE" is any accounts receivable:
(A) that is unpaid (90) calendar days after the invoice date; or
(B) that is owed by an Account Debtor that has filed, or has had filed
against it, any bankruptcy ease, assignment for the benefit of
creditors, receivership, or insolvency Proceeding or who has become
insolvent (as defined in the United States Bankruptcy Code) or who
is generally not paying its debts as they become due; or
(C) for which there has been any breach of warranty or representation
in Section 6 or any breach of any covenant in this Agreement; or
(D) for which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of
recoupment, right of return, warranty claim, or short payment.
"INSOLVENCY PROCEEDING" are proceedings by or against any person under
the United States Bankruptcy Cede, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INVOICE TRANSMITTAL" shows accounts receivable which Bank may finance
and, for each receivable, includes the Account Debtor's, name, address, invoice
amount, invoice date and invoice number and is signed by Borrower's authorized
representative.
"LOCKBOX" is described in Section 6.2.
"MINIMUM FINANCE CHARGE" is $3,000.00.
"OBLIGATIONS" are all advances, liabilities, obligations, covenants and
duties owing, arising, due or payable by Borrower to Bank now or later under
this Agreement or any other document, instrument or agreement, account
(including those acquired by assignment) primary or secondary, such as all
Advances, Finance Charges. Administrative Fees, interest, fees, expenses,
professional fees and attorneys' fees or other.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it
is not Bank's lowest rate.
"RECONCILIATION DAY" is the last calendar day of each month.
"RECONCILIATION PERIOD" is each calendar month.
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2. FINANCING OF ACCOUNTS RECEIVABLE.
2.1. REQUEST FOR ADVANCES. During the Facility Period, Borrower may
offer accounts receivable to Bank, if there is not an Event of Default.
Borrower will deliver an Invoice Transmittal for each accounts
receivable it offers. Bank may rely on information on or with the
invoice Transmittal.
2.2. ACCEPTANCE OF ACCOUNTS RECEIVABLE. Bank is not obligated to
finance any accounts receivable. Bank may approve any Account Debtor's
credit before financing any receivable. When Bank accepts a receivable,
it will pay Borrower the Advance Rate times the face amount of the
receivable (the "Advance"). Bank may, in its discretion, change the
percentage of the Advance Rate. When Bank makes an Advance, the
receivable becomes a "Financed Receivable." All representations and
warranties in Section 6 must be true as of the date of the Invoice
Transmittal and of the Advance and no Event of Default exists would
occur as a result of the Advance. The aggregate amount of all Financed
Receivables outstanding at any time may not exceed the Facility Amount.
3. COLLECTIONS, FINANCE CHARGES, REMITTANCES AND FEES. The Obligations
shall be subject to the following fees and Finance Charges. Fees and
Finance Charges may, in Bank's discretion, be charged as an Advance,
and shall thereafter accrue fees and Finance Charges as described
below. Bank may, in its discretion, charge fee and Finance Charges to
Borrower's deposit account maintained with Bank.
3.1 COLLECTIONS. Collections will be credited to the Financed
Receivables Balance, but if there is an Event of Default, Bank may
apply Collections to the Obligation in any order it chooses. If Bank
receives a payment for both Financed Receivable and a non Financed
Receivable, the funds will first be applied to the Financed Receivable
and, if there is not an Event of Default, the excess will be remitted
to the Borrower, subject to Section 3.10.
3.2. FINANCE CHARGES. In computing Finance Charges on the Obligations,
all Collections received by Bank shall be deemed applied by Bank on
account of the Obligations 5 Business Days after receipt of the
Collections. Borrower will pay a finance charge (the "Finance Charge"),
which is the greater of (i) the Applicable Rate times the number of
days in the Reconciliation Period times the outstanding average daily
Financed Receivable Balance for that Reconciliation Period or (ii) the
Minimum Finance Charge. After an Event of Default, Obligations accrue
interest at 5 percent above the Applicable Rate effective immediately
before the Event of Default.
3.3. INTENTIONALLY OMITTED.
3.4. FACILITY FEE. A fully earned, non-refundable facility fee of
$7,500.00 is due upon execution of this Agreement.
3.5. COLLATERAL HANDLING FEE. On each Reconciliation Day, Borrower will
pay to Bank a collateral handling fee, equal to .50% per month
of the average daily Financed Receivable Balance outstanding during the
applicable Reconciliation Period. After an Event of Default, the
Collateral Handling Fee will increase an additional .50% effective
immediately before the Event of Default.
3.6. EARLY TERMINATION FEE. A fully earned, non-refundable early
termination fee of $50,000.00 is due upon voluntary full payment of the
Obligations and termination of this Facility prior to November 9, 2001
unless the Obligations are paid in full from an initial advance from a
loan agreement with Silicon Valley Bank.
3.7. ACCOUNTING. After each Reconciliation Period, Bank will provide an
accounting of the transactions for that Reconciliation Period,
including the amount of all Financed Receivables, all Collections,
Adjustments, Finance Charges, the Collateral Handling Fee and the
Administrative Fee. If Borrower does not object to the accounting in
writing within 30 days it is considered correct. All Finance Charges
and other interest and fees calculated on the basis of a 360 day year
and actual days elapsed.
3.8. DEDUCTIONS. Bank may deduct fees, finance charges and other
amounts due from any Advances made or Collections received by Bank.
3.9. INTENTIONALLY OMITTED
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3.10. ACCOUNT COLLECTION SERVICES. All Borrowers' receivables are to be
paid to the same address/or party and Borrower and Bank must agree on
such address. If Bank collects all receivables and there is not an
Event of Default or an event that with notice or lapse of time will be
an Event of Default, within five (5) days of receipt of those
collections, Bank will give Borrower, the receivables collections it
receives for receivables other than Financed Receivables and/or amount
in excess of the amount for which Bank has made an Advance to Borrower,
less any amount due to Bank, such as the Finance Charge, Administrative
Fee, Collateral Handling Fee and expenses or otherwise. This Section
does not impose any affirmative duty on Bank to do any act other than
to turn over amounts. All receivables and collections are Collateral
and if an Event of Default occurs, Bank need not remit collections of
Collateral and may apply them to the Obligations.
4. REPAYMENT OF OBLIGATIONS.
4.1. REPAYMENT ON MATURITY. Borrower will repay each Advance on the
earliest of: (a) payment of the Financed Receivable in respect which
the Advance was made, (b) the Financed Receivable becomes an Ineligible
Receivable, (c) when any Adjustment is made to the Financed Receivable
(but only to the extant of the Adjustment if the Financed Receivable is
not otherwise an Ineligible Receivable, or (d) the last day of the
Facility Period (including any early termination). Each payment will
also include all accrued Finance Charges on the Advance and all other
amounts due hereunder.
4.2. REPAYMENT ON EVENT OF DEFAULT. When there is an Event of Default,
Borrower will, if Bank demands (or, in an Event of Default under
Section 9(B), immediately without notice or demand from Bank) repay all
of the Advances. The demand may, at Bank's option, include the Advance
for each Financed Receivable then outstanding and all accrued Finance
Charges, Administrative Fees, attorneys and professional fees, court
costs and expenses, and any other Obligations.
5. POWER OF ATTORNEY. Borrower irrevocably appoints Bank and its
successors and assigns it attorney-in-fact and authorizes Bank,
regardless of whether there has been an Event of Default, to:
(A) sell, assign, transfer, pledge, compromise, or discharge all or any
part of the Financed Receivables;
(B) demand, collect, xxx, and give releases to any Account Debtor for
monies due and compromise, prosecute, or defend any action, claim,
case or proceeding about the Financed Receivables, including filing
a claim or voting a claim in any bankruptcy case in Bank's or
Borrower's name, as Bank chooses;
(C) prepare, file and sign Borrower's name on any notice, claim,
assignment, demand, draft, or notice of or satisfaction of lien or
mechanics' lien or similar document;
(D) notify all Account Debtors to pay Bank directly;
(E) receive, open, and dispose of mail addressed to Borrower;
(F) endorse Borrower's name on check or other instruments;
(G) execute on Borrower's behalf any instruments, documents, financing
statements to perfect Bank's interests in the Financed Receivables
and Collateral; and
(H) do all acts and things necessary or expedient.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants
for each Financed Receivable:
(A) It is the owner with legal right to sell, transfer and assign it;
(B) The correct amount is on the Invoice Transmittal and is not
disputed;
(C) Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the
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Invoice Transmittal date;
(D) It is based on an actual safe and delivery of goods and/or services
rendered, due to Borrower, it is not past duo or in default, has
not been previously sold, assigned, transferred, or pledged and is
free of any liens, security interests and encumbrances;
(E) There are no defenses, offsets, counterclaims or agreements for
which the Account Debtor may claim any deduction or discount;
(F) It reasonably believes no Account Debtor is insolvent or subject to
any Insolvency Proceedings;
(G) It has not filed or had filed against it Insolvency Proceedings and
does not anticipate any filing;
(H) Bank has the right to endorse and/or require Borrower to endorse
all payments received on Financed Receivables and all proceeds of
Collateral.
(I) No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue
statement of a material fact or omits to stake a material fact
necessary to make the statement contained in the certificates or
statement not misleading.
6.1.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower
represents and warrants as follows:
(A) Borrower is duty existing and in good standing in its
state of formation and qualified and licensed to do
business in, and in good standing in, any stake in
which the conduct of its business or its ownership of
property requires that it be qualified. The
execution, delivery and performance of this Agreement
has been duly authorized, and does not conflict with
Borrower's organizational documents, nor constitute
an Event of Default under any material agreement by
which Borrower is bound Borrower is not in default
under any agreement to which or by which it is bound.
(B) Borrower has good title to the Collateral. All
inventory is in all material respects of good and
marketable quality, free from material defects.
(C) Borrower is not an "Investment company" or a company
"controlled" by an "investment company" under the
Investment Company Act. Borrower is not engaged as
one of its important activities in extending credit
for margin stock (under Regulations G, T and U of the
Federal Reserve Board of Governors). Borrower has
complied with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or
rules. None of Borrower's properties or assets has
been used by Borrower, to the best of Borrower's
knowledge, by previous persons, in disposing,
producing, storing, treating, or transporting any
hazardous substance other than legally. Borrower has
timely filed all required tax returns and paid, or
made adequate provision to pay, all taxes. Borrower
has obtained all consent, approvals and
authorizations of, made all declarations or filings
with, and given all notices to, all government
authorities that are necessary to continue its
business as currently conducted.
6.2. AFFIRMATIVE COVENANTS. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification in
each jurisdiction necessary to Borrower's business or operations.
(B) Give Bank at least 10 days prior written notice of changes to its
name, organization, chief executive office or location of records.
(C) Pay all its taxes including gross payroll, withholding and sales
taxes when due and will deliver satisfactory evidence of payment if
requested.
(D) Provide a written report within 10 days, if payment of any Financed
Receivable does not occur by its due date and include the reasons
for the delay.
(E) Give Bank copies of all Forms 10-K, 10-Q and 8-K (or equivalents)
within 5 days of filing with the
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Securities and Exchange Commission, while any Financed Receivable is
outstanding.
(F) Execute any further instruments and take further action as Bank
requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
(G) Provide Bank with a Compliance Certificate no later than 5 days
following each quarter end or as requested by Bank.
(H) Provide Bank with, as soon as available, but no later than 30 days
following each Reconciliation Period, a company prepared balance
sheet and income statement, prepared under GAAP, consistently
applied, covering Borrower's operations during the period together
with an aged listing of accounts receivable and accounts payable
along with a deferred revenue report.
(I) Immediately notify, transfer and deliver to Bank all collections
Borrower receives for Financed Receivables.
(J) Direct each Account Debtor to make payments to a lockbox account
with Bank or to wire transfer payments to Bank.
(K) Borrower will allow Bank to audit Borrower's Collateral, including
but not limited to Borrower's Accounts, at Borrowers expense, no
later than one year from the date of the execution of this
Agreement and annually thereafter. Provided however, if an Event of
Default has occurred, Bank may audit Borrower's Collateral,
including but not limited to Borrower's Accounts at Bank's sole
discretion and without notification and authorization from
borrower.
6.3. NEGATIVE COVENANTS. Borrower will not do any of the following
without Bank's prior written consent:
(A) Assign, transfer, sell or grant, or permit any lien or security
interest in the Collateral.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral.
(C) Create, incur, assume, or be liable for any indebtedness.
(D) Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of 1940 or
undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Advance
for that purpose; fail to meet the minimum funding requirements of
ERISA, permit a Reportable Event or Prohibited Transaction, as
defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, or
permit any of its subsidiaries to do so.
7. ADJUSTMENTS. If any Account Debtor asserts a discount, allowance,
return, offset, defense, warranty claim, or the like (an "Adjustment")
or if Borrower breaches any of the representations, warranties or
covenants set forth in Section 6, Borrower will promptly advise Bank.
Borrower will resell any rejected, returned, returned, or recovered
personal property for Bank, at Borrower's expense, and pay proceeds to
Bank. While Borrower has returned goods that are Borrower property,
Borrower will segregate and xxxx them "property of Silicon Valley
Bank." Bank owns the Financed Receivables and until receipt of payment,
has the right to take possession of any rejected, returned, or
recovered personal property.
8. SECURITY INTEREST. Borrower grants to Bank a continuing security
interest in all presently and later acquired Collateral. Any security
interest will be a first priority security interest in the Collateral.
9. EVENTS OF DEFAULT. Any one or more of the following is an event of
Default.
(A) Borrower fails to pay any amount owed to Bank when due;
(B) Borrower files or has filed against it any Insolvency Proceedings
or any assignment for the benefit of creditors, or appointment of a
receiver or custodian for any of its assets;
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(C) Borrower becomes insolvent or is generally not paying its debts as
they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment attaches to the
Financed Receivables or any Collateral;
(E) Borrower breaches any covenant, agreement, warranty, or
representation and does not cure it to Bank's satisfaction within
10 days; but a breach that cannot be cured it is an immediate Event
of Default;
(F) Borrower is in default under any document, instrument or agreement
evidencing any debt, obligation or liability in favor of Bank its
affiliates or vendors regardless of whether the debt, obligation or
liability is direct or indirect, primary or secondary, or fixed or
contingent:
(G) An event of default occurs under any Guaranty of the Obligations or
any material provision of any Guaranty is not valid or enforceable
or a Guaranty is repudiated or terminated;
(H) A material default or Event of Default occurs under any agreement
between Borrower and any creditor of Borrower that signed a
subordination agreement with Bank;
(I) Any creditor that has signed a subordination agreement with Bank
breaches any terms of the subordination agreement; or
(J) (i) A material impairment to the perfection or priority of the
Bank's security interest in the Collateral; (ii) a material adverse
change in the business, operations, or conditions (financial or
otherwise) of the Borrower occurs; or (iii) a materiel impairment
of the prospect of repayment of any portion of the Advances occurs.
10. REMEDIES.
10.1. REMEDIES UPON DEFAULT. When an Event of Default occurs, (1) Bank
may stop financing receivables or extending credit to Borrower; (2) at
Banks option and on demand, all or a portion of the Obligations or, for
to an Event of Default described in Section 9(B), automatically and
without demand, are due and payable in full; (3) apply to the
Obligations any (i) balances and deposits of Borrower it holds, or (ii)
any amount held by Bank owing to or for the credit or the account of
Borrower; and (4) Bank may exercise all rights and remedies under this
Agreement and the law, including those of a secured party under the
Code, power of attorney rights in Section 5 for the Collateral, and the
right to collect, dispose of, sell, lease, use, and realize upon all
Financed Receivables and Collateral in any commercial manner. Borrower
agrees that any notice of sale required to be given to Borrower is
deemed given if at least five days before the sale may be held.
10.2. DEMAND WAIVER. Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default,
nonpayment at maturity, release, compromise, settlement, extension, or
renewal of accounts, documents, instruments, chattel paper, and
guaranties held by Bank on which Borrower is liable.
10.3. DEFAULT RATE. If any amount is not paid when due, the amount
bears interest at the Applicable Rate plus five percent until the
earlier of (a) payment in good funds or (b) entry of a final judgment
when the principal amount of any money judgment will accrue interest at
the highest rate allowed by law.
11. FEES, COSTS AND EXPENSES. The Borrower will pay on demand all fees,
costs and expenses (including attorneys' and professionals fees with
costs and expenses) that Bank incurs from: (a) preparing, negotiating,
administering, and enforcing this Agreement or related agreement,
including any amendments, waivers or consents, (b) any litigation or
dispute relating to the Financed Receivables, the Collateral, this
Agreement or any other agreement, (c) enforcing any rights against
Borrower or any guarantor, or any Account Debtor, (d) protecting or
enforcing its interest in the Financed Receivables or other Collateral,
(e) collecting the Financed Receivables and the Obligations, and (f)
any bankruptcy case or insolvency proceeding involving Borrower, any
Financed Receivable, the Collateral, any Account Debtor, or any
Guarantor.
12. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. California law governs this
Agreement. Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Santa Xxxxx County, California.
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BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM
OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND
ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUICEMENT FOR BOTH
PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS
WAIVER WITH ITS COUNSEL
13. NOTICES. Notices or demands by either party about this Agreement must
be in writing and personally delivered or sent by an overnight delivery
service, by certified mail postage prepaid return receipt requested, or
by FAX to the addresses listed at the beginning of this Agreement. A
party may change notice address by written notice to the other party.
14. GENERAL PROVISIONS
14.1. SUCCESSORS AND ASSIGNS. This Agreement binds and is for the
benefit of successors and permitted assigns of each party. Borrower may
not assign this Agreement or any rights under it without Bank's prior
written consent which may be granted or withheld in Bank's discretion.
Bank may, without the consent of or notice to Borrower, sell, transfer,
or grant participation in any part of Bank's obligations, rights or
benefits under this Agreement.
14.2. INDEMNIFICATION. Borrower xxxx indemnify, defend and hold
harmless Bank and its officers, employees, and agents against: (a)
obligations, demands, claims, and liabilities asserted by any other
party in connection with the transactions contemplated by this
Agreement, and (b) losses or expenses incurred, or paid by Bank from or
consequential to transactions between Bank and Borrower (including
reasonable attorneys fees and expenses), except for losses caused by
Bank's gross negligence or willful misconduct.
14.3. TIME OF ESSENCE. Time is of the essence for performance of all
obligations in this Agreement.
14.4. SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability
of any provision.
14.5. AMENDMENTS IN WRITING, INTEGRATION. All amendments to this
Agreement must be in writing. This Agreement is the entire agreement
about this subject matter and supersedes prior negotiations or
agreements.
14.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when
executed and delivered are one Agreement.
14.7. SURVIVAL. All covenants, representations and warranties made in
this Agreement continue in force while any Financed Receivable amount
remains outstanding. Borrower's indemnification obligations survive
until all statutes of limitations for actions that may be brought
against Bank have run.
14.8. CONFIDENTIALITY. Bank will use the same degree of care handling
Borrower's confidential information that it uses for its own
confidential information, but may disclose information; (i) to its
subsidiaries or affiliates in connection with their business with
Borrower, (ii) to prospective transferees or purchasers of any interest
in the Agreement, (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with an examination or
audit and (v) as it considers appropriate exercising the remedies under
this Agreement. Confidential information does net include information
that is either: (a) in the public domain or in Bank's possession when
disclosed, or becomes part of the public domain after disclosure to
Bank; or (b) disclosed to Bank by a third party, if Bank does net know
that the third party is prohibited from disclosing the information.
14.9. OTHER AGREEMENTS. This Agreement may not adversely affect Banks
rights under any other document or agreement. If there is a conflict
between this Agreement and any agreement between Borrower and Bank,
Bank may determine in its sole discretion which provision applies.
Borrower acknowledges that any security agreements, liens and/or
security interests securing payment of Borrower's Obligations also
secure Borrower's Obligations under this Agreement and are not
adversely affected by this Agreement. Additionally, (a) any Collateral
under other agreements or documents between Borrower and Bank secures
Borrowers Obligations under this Agreement and (b) a default by
Borrower under this Agreement is a default under agreements between
Borrower and Bank.
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BORROWER: AML Communications, Inc.
By /s/ Xxxx X. Xxxxx
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Title CHIEF FINANCIAL OFFICER
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BANK: SILICON VALLEY BANK
By /s Xxxxxxx Xxxxx
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Title SENIOR VICE PRESIDENT
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EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in end 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, service marks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer fists, mute 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 pack, present and future infringement of any of
the foregoing;
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
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