Exhibit 10.6
This LOAN AND SECURITY AGREEMENT (this
"Agreement"), dated August 17, 1999, between SILLCON
VALLEY BANK, a California-chartered bank, with its
principal place of business at 0000 Xxxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan
production office located at Wellesley Office Park,
00 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxxxxx 0000x, doing business under the name
"Silicon Valley East" ("Bank") and OPUS360
CORPORATION, a Delaware corporation with is chief
executive office located at 000 0xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Borrower"), provides the terms on
which Bank will lend to Borrower and Borrower will
repay Bank. The parties agree as follows:
Section 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. Capitalized terms in this Agreement
shall have the meanings set forth in Section 13. This Agreement shall be
construed to impart upon Bank a duty to act reasonably at all times.
Section 2. LOAN AND TERMS OF PAYMENT
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.
(a) EQUIPMENT FACILITY.
(i) Subject to the terms and conditions of this Agreement,
Bank agrees to lend to Borrower from time to time prior to the
Commitment Termination Date, equipment advances (each an "Equipment
Advance" and collectively the "Equipment Advances"), in an aggregate
amount not to exceed the Committed Equipment Line. When repaid, the
Equipment Advances may act be re-borrowed. The proceeds of the
Equipment Advances will be used solely to reimburse Borrower for the
purchase of Eligible Equipment purchased within 60 days (determined
based upon the applicable invoice date of such Eligible Equipment) of
the Equipment Advance. Each Equipment Advance shall be considered a
promissory note evidencing the amounts due hereunder for all purposes.
Bank's obligation to lend hereunder shall terminate on the earlier of
(i) the occurrence and continuance of an Event of Default, or (ii) the
Commitment Termination Date. For purposes of this Section, the minimum
amount of each Equipment Advance is Fifty Thousand Dollars ($50,000.00)
and the maximum number of Equipment Advances that will be made is ten
(10).
(ii) To obtain an Equipment Advance, Borrower will deliver to
Bank a completed supplement in substantially the form attached as
EXHIBIT B ("Loan Supplement"), together with a UCC Financing Statement
covering the Equipment described on the Loan Supplement and such
additional information as Bank may reasonably request at least five (5)
Business Days before the proposed funding date (the "Funding Date"). On
each Funding Date, Bank will specify in the Loan Supplement for each
Equipment Advance, the Basic Rate, the Loan Factor and the Payment
Dates. If Borrower satisfies the conditions of each Equipment Advance,
Bank will disburse such Equipment Advance by internal transfer to
Borrower's deposit account with Bank. Each Equipment Advance may not
exceed 100% of the Original Stated Cost.
(iii) Bank's obligation to lend the undisbursed portion of the
Committed Equipment Line will terminate if, in Bank's sole discretion,
there has been a material adverse change in the general affairs,
management, results of operation, condition (financial or otherwise) or
the prospects of Borrower, whether or not arising from transactions in
the ordinary course of business, or there has been any material adverse
deviation by Borrower from the most recent business plan of Borrower
presented to and accepted by Bank prior to the execution of this
Agreement.
2. OVERADVANCES. If Borrower's Obligations under Section 2.l.l exceed
the Committed Equipment Line, Borrower must immediately pay in cash to Bank the
excess.
3. INTEREST RATE; PAYMENTS.
(a) PRINCIPAL AND INTEREST PAYMENTS ON PAYMENT DATES. Borrower will
repay the Equipment Advances on the terms provided in the Loan Supplement.
Borrower will make payments monthly in advance of principal and accrued interest
for each Equipment Advance (collectively, "Scheduled Payments"), on the first
Business Day of the month following the Funding Date (or commencing on the
Funding Date if the Funding Date is the first Business Day of the month) with
respect to such Equipment Advance and continuing thereafter during the Repayment
Period on the first Business Day of each calendar month (each a "Payment Date"),
in an amount equal to the Loan Factor multiplied by the Loan Amount for such
Equipment Advance as of such Payment Date. All unpaid principal and accrued
interest is due and payable in full on the last Payment Date with respect to
such Equipment Advance. Payments received after 12:00 noon Eastern time are
considered received at the opening of business on the next Business Day. An
Equipment Advance may only be prepaid in accordance with Sections 2.3(e) and
2.3(g).
(b) INTEREST RATE. Borrower will pay interest on the unpaid principal
amount of each Equipment Advance from the first Payment Dates after the Funding
Date of such Equipment Advance until the Equipment Advance has been paid in
full, at the per-annum rate of interest equal to the Basic Rate determined by
Bank as of the Funding Date for each Equipment Advance in accordance with the
definition of the Basic Rate. Any amounts outstanding during the continuance of
an Event of "Default shall bear interest at a per-annum rate equal to the Basic
Role plus five percent (5%) (the "Default Rate"). If any change in the law
increases Bank's expenses or decreases its return from the Equipment Advances,
Borrower will pay Bank upon request the amount of such increase or decrease.
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(c) INTERIM PAYMENT. In addition to the Scheduled Payments, on the
Funding Date for each Equipment Advance (unless the Funding Date is the first
Business Day of the month), Borrower shall pay to Bank, on behalf of Bank, an
amount (the "Interim Payment") equal to the initial Equipment Advance multiplied
by the product of (i) the quotient derived from dividing the initial Loan Factor
with respect to such Equipment Advance by 30, and (ii) the number of days from
the Funding Date of the Equipment Advance until the first Payment Date with
respect to such Equipment Advance.
(d) FINAL PAYMENT. On the Maturity Date with respect to each Equipment
Advance, Borrower will pay, in addition to the unpaid principal and accrued
interest and all other amounts due on such date with respect to such Equipment
Advance, an amount equal to the Final Payment.
(e) PREPAYMENT UPON AN EVENT OF LOSS. If any Financed Equipment is
subject to an Event of Loss and Borrower is required to, or elects to, prepay
the Equipment Advance with respect to such Financed Equipment pursuant to
Section 6.6, then such Equipment Advance shall be prepaid to the extent and in
the manner provided in such section.
(f) MANDATORY PREPAYMENT UPON AN ACCELERATION. If the Equipment
Advances are accelerated following the occurrence of an Event of Default or
otherwise (other than following an Event of Loss), then Borrower will
immediately pay to Bank (i) all unpaid Scheduled Payments with respect to each
Equipment Advance due prior to the date of prepayment, (ii) all accrued unpaid
interest, including interest at the Default Rate, to the date of the prepayment,
(iii) the Final Payment and (iv) all other sums, if any, that shall have become
due and payable with respect to any Equipment Advance.
(g) PERMITTED PREPAYMENT OF LOANS. With Bank's prior written consent,
Borrower shall have the option to prepay all, but not less than all, of the
Equipment Advances advanced by Bank under this Agreement, PROVIDED, Borrower (i)
provides written notice to Bank of its election to exercise to prepay the
Equipment Advances at least thirty (30) days prior to such prepayment, and (ii)
pays, on the date of the prepayment (A) all remaining Scheduled Payments
(including principal and interest); (B) all unpaid accrued interest to the date
of the prepayment; (C) the Final Payment; and (D) all other sums, if any, that
shall have become due and payable hereunder with respect to this Agreement.
(h) REQUEST TO DEBIT. Bank may debit any of Borrower's deposit
accounts, including Account Number _______ for principal and interest payments
or any amounts Borrower owes Bank when due. Bank will notify Borrower when it
debits Borrower's accounts. These debits are not a sit-off.
4. FEES. Borrower will pay to Bank:
(a) FINAL PAYMENT FEE. A fully earned, non-refundable Final Payment Fee
as and when set forth in Section 2.3(d); and
(b) BANK EXPENSES. All Bank Expenses (including reasonable attorneys'
fees and expenses), incurred through and after the Closing Date when due.
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5. ADDITIONAL COSTS. If any law or regulation increases Bank's costs or
reduces its income for any loan, Borrower will pay the increase in cost or
reduction in income or additional expense; PROVIDED, HOWEVER, that Borrower
shall not be liable for any amount attributable to any period before 180 days
prior to the date Bank notifies Borrower of such increased costs. Bank agrees
that it will allocate any increased costs among its customers similarly affected
in good faith and in a manner consistent with Bank's customary practice.
Section 3. CONDITIONS OF LOANS
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.
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 a completed Loan Supplement and UCC
financing statement; and
(b) the representations and warranties in Section 5 must be
materially true on the date or 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 in Section 5 remain true.
Section 4. CREATION OF SECURITY INTEREST
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. Any security interest will be a f'irst priority security
interest in the Collateral. Bank may place a "hold" on any deposit account
pledged as Collateral. lf the Agreement is terminated, Bank's lien and security
interest in the Collateral will continue until Borrower fully satisfies its
Obligations.
Section 5. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
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.
The execution, delivery and performance of the Loan Documents have been
duly authorized and do not conflict with Borrower's formations documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Sorrower is not in default under any agreement to which or by which it is
bound in which the default could cause a Material Adverse Change.
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2. COLLATERAL. Borrower has good title to the Collateral, free of
Liens, except for liens (i) in favor of the Bank arising under the May
Agreement, or (ii) for taxes, fees, assessments or other governmental charges or
levies, either not delinquent or being contested in good faith by appropriate
proceedings and as to which adequate reserves are maintained on Borrower's books
in accordance with GAAP, PROVIDED, the same have no priority over any of Bank's
security interests.
3. LITIGATION. Except as shown in the Schedule, there are no actions or
proceedings pending or, to Borrower's knowledge, threatened by or against
Borrower or any Subsidiary in which an adverse decision could cause a Material
Adverse Change.
4. NO MATERIAL ADVERSE CHANGES 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. SOLVENCY. Borrower is able to pay its debts (including trade debts)
as they mature.
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 with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could 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.
7. SUBSIDIARIES. Borrower does not own any stock, partnership interest
or other equity securities.
8. FULL DISCLOSURE. 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 state a material fact necessary
to make the statements contained in the certificates or statements not
misleading.
Section 6. AFFIRMATIVE COVENANTS
Borrower will do all of the following:
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1. GOVERNMENT COMPLIANCE. Borrower will maintain its and all
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could have 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 cause a Material Adverse Change.
2. FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower will deliver to Bank: (i) as soon as available, but no
later than thirty (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 acceptable to Bank and certified by a
Responsible Officer, (ii) as soon as available, but no later than one hundred
twenty (120) days after the end of Borrower's fiscal year, audited consolidated
financial statements prepared under GAAP, consistently applied, together with an
unqualified opinion on the financial statements from an independent certified
public accounting firm acceptable to Bank; (iii) within five (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; (iv) 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 $100,000.00 or more; and (v) budgets, sales projections, operating plans or
other financial information Bank reasonably requests from time to time.
(b) Within thirty (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.
3. 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.
4. INSURANCE.
(a) Borrower, at its expense, shall keep the Collateral insured against
loss or damage by fire, theft, explosion, sprinklers and all other hazards and
risks, and in such amounts, as ordinarily insured against by other owners in
similar businesses conducted in the locations where Borrower's business is
conducted on the date hereof. Borrower shall also maintain insurance relating to
Borrower's ownership and use of the Collateral in amounts and of a type that are
customary to businesses similar to Borrower's.
(b) All such policies of insurance shall be in such form, with such
companies, and in such amounts as are reasonably satisfactory to Bank. All such
policies of property insurance shall contain a lender's loss payable
endorsement, in a form satisfactory to Bank, showing Bank as an additional loss
payee thereof, and all liability insurance policies shall show the Bank as an
additional insured, and shall specify that the insurer must give at least twenty
(20) days notice to
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Bank before canceling its policy for any reason. At Bank's request, Borrower
shall deliver to Bank certified copies of such policies of insurance and
evidence of the payrolls of all premiums therefor. All proceeds payable under
any such policy shall, at the option of Bank, be payable to Bank to be applied
on account of the Obligations.
5. PRIMARY ACCOUNTS. Borrower will maintain a depository account with
Bank.
6. LOSS; DESTRUCTION; OR DAMAGE. Borrower will bear the risk of the
Financed Equipment being lost, stolen, destroyed or damaged. If, during the term
of this Agreement, any item of Financed Equipment becomes obsolete or is lost,
stolen, destroyed, damaged beyond repair, rendered permanently unfit for use, or
seized by a governmental authority for any reason for a period equal to at least
the remainder of the term of this Agreement (an "Event of Loss"), then in each
case, Borrower:
(a) Prior to the occurrence of an Event of Default, at Borrower's
option, will (i) pay to Bank on account of the Obligations all accrued interest
to the date of the prepaymemt. plus all outstanding principal, plus the Final
Payment: or (ii) repair or replace any Financed Equipment subject to an Event of
Loss provided the repaired or replaced Financed Equipment is of equal or like
value to the Financed Equipment subject to an Event of Loss and provided further
that Bank has a first priority perfected security interest in such repaired or
replaced Financed Equipment.
(b) During the continuance of an Event of Default, on or before the
Payment Date after such Event of Loss for each such item of Financed Equipment
subject to such Event of Loss, Borrower will, at Bank's option, pay to Bank an
amount equal to the sum of: (i) all accrued and unpaid Scheduled Payments (with
respect to such Equipment Advance related to the Event of Loss), due prior to
the next such Payment Date, (ii) all regularly Scheduled Payments (including
principal and interest), (iii) the Final Payment plus (iv) all other sums, if
any, that shall have become due and payable, including interest at the Default
Rate with respect to any past due amounts.
(c) On the date of receipt by Bank of the amount specified above with
respect to each such item of Financed Equipment subject to an Event of Loss,
this Agreement shall terminate as to such Financed Equipment. If any proceeds of
insurance or awards received from governmental authorities are in excess of the
amount owed under this Section, Bank shall promptly remit to Borrower the amount
in excess of the amount owed to Bank.
7. TANGIBLE NET WORTH. Borrower shall maintain, as of the last day of
each calendar month, a Tangible Net Worth of not less than Two Million Dollars
($2,000,000.00).
8. EQUITY. On or before September 30, 1999, the Borrower shall deliver
to the Bank a signed commitment letter and such other documentation as may be
reasonably required by the Bank relative to the Borrower's Series B equity
financing.
9. FURTHER ASSURANCES. At any time and from time to time, Borrower
shall execute and deliver such further instruments and take such further action
as may reasonably be requested by Bank to effect the purposes of this Agreement.
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Section 7. NEGATIVE COVENANTS
Borrower will not do any of the following without the Bank's written
consent, which will not be unreasonably withheld:
1. Change its name or the chief executive office or principal place of
business, move or dispose of any interest in the Collateral, permit any lien or
security interest to attach to the Collateral, or enter into any transaction
outside the ordinary course of Borrower's business.
2. 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 have a material adverse effect on Borrower's business or
operations or cause a Material Adverse Change, or permit any of its Subsidiaries
to do so.
3. COMPLIANCE. Undertakes 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 defraud 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 reasonably be expected to
have a material adverse effect on Borrower's business or operations or cause a
Material Adverse Change, or permit any of its Subsidiaries to do so.
Section 8. EVENTS OF DEFAULT
Any one of the following is an Event of Default:
1. PAYMENT DEFAULT. Borrower fails to pay any of the Obligations within
three (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 Extensions will be
made during the cure period).
2. COVENANT DEFAULT. Borrower does not perform any obligation in
Article 6 or violates any covenant in Article 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 in the 10-day period, and the
default may be cured within a reasonable time, then Borrower has an additional
time (of not more than 30 days) to attempt to cure the default. During the
additional period, the failure to cure the default is not an Event of Default
(but no Credit Extensions will be made during the cure period).
3. MATERIAL ADVERSE CHANGE. If there occurs (i) a material impairment
in the perfection or priority of the Book's security interest in the Collateral
or in the value of such Collateral other than normal depreciation which is not
covered by adequate insurance; (ii) a material adverse
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change in the business, operations, or condition (financial or otherwise) of the
Borrower, or (iii) a material impairment of the prospect of repayment of any
portion of the Obligations.
4. ATTACHMENT. (i) 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; (ii) Borrower is
enjoined, restrained, or represented by court order from conducting a material
part of its business; (iii) a judgment or other claim becomes a Lien on a
material portion of Borrower's assets; or (iv) a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within l0 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).
5. INSOLVENCY. (i) Borrower becomes insolvent; (ii) Borrower begins an
Insolvency Proceeding; or (iii) 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).
6. 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 communication
delivered to Bank or to induce Bank to enter this Agreement or any Loan
Document.
7. CROSS-DEFAULT. The occurrence of any Event of Default (as defined in
that certain Loan and Security Agreement, dated May 19, 1999, by and between the
Borrower and the Bank and, referred to herein as the "May Agreement"), shall
constitute an Event of Default under this Agreement. In addition, the Borrower
further acknowledges and agrees that the occurrence of any Event of Default
under this Agreement shall additionally constitute an Event of Default under the
May Agreement.
Section 9. BANK'S RIGHTS AND REMEDIES
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) declare all Obligations (as defined in the May Agreement) under the
May Agreement immediately due and payable (but if an Event of Default described
in Section 8.5 occurs, all such Obligations are immediately due and payable
without any action by Bank);
(c) stop advancing money or extending credit for Borrower's benefit
under this Agreement or under any other agreement between Borrower and Bank;
(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
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requests 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 account 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;
(g) dispose of the Collateral according to the Code; and
(h) exercise any and all fights and remedies of the Bank under the May
Agreement.
2. POWER OF ATTORNEY. 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) make,
settle and adjust all claims with respect to the Collateral under Borrower's
insurance policies; and (iii) 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.
3. 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 6.4, 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.
4. BANK'S LIABILITY FOR COLLATERAL. If Bank complies with reasonable
banking practices, it is not liable or responsible 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.
5. 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.
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6. 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.
Section 10. NOTICES.
All notices or demands by any parity to 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 at the addresses listed at the beginning of this
Agreement. A Party may change its notice address by giving the other Party
written notice.
Section 11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
The laws of the Commonwealth of Massachusetts shall apply to this
Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT,
OR PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION
OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY, CALIFORNIA.
BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON, OR ARISING OUT OF, ANY OF THE
LOAN DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH
PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
Section 12. GENERAL PROVISIONS
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 or Obligations under it without Bank's prior
written consent which may be granted or withheld in Book'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,
Book's obligations, rights and benefits under this Agreement, the Loan Documents
or any related agreement.
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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.
3. TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
4. SEVERABILITY OF PROVISION. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
5. AMENDMENTS IN WRITING INTEGRATION. All amendments to this Agreement
must be in writing signed by both Bank and Borrower. This Agreement and the Loan
Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
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, are one
Agreement.
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.
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 Book's
subsidiaries or affiliates in connection with their present or prospective
business relations with Borrower; (ii) to prospective transferees or purchasers
of any interest in the Loans; (iii) as required by law, regulation, subpoena, or
other judicial order or similar order, (iv) as required in connection with
Bank's examination or audit; and (v) as Bank considers appropriate in 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 through no fault of the 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.
9. ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding
between Borrower and Bank arising out of the Loan Documents, the prevailing
parry will be entitled to recover its reasonable attorneys' fees and other costs
and expenses incurred, in addition to any other relief to which it may be
entitled, whether or not a lawsuit is filed.
12
Section 13. DEFINITIONS
1. Definitions.
"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 or
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"Basic Rate" is, as of the Funding Date, the per-annum rate of interest
(based on a year of 360 days) equal to the sum of (a) the U.S. Treasury note
yield to maturity for a term equal to the Treasury Note Maturity as quoted in
THE WALL STREET JOURNAL on the day the Loan Supplement is prepared, plus (b) the
Loan Margin.
"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 Massachusetts Uniform Commercial Code.
"Collateral" is the property described on EXHIBIT A.
"Committed Equipment Line" is a Credit Extension of up to One Million
Five Hundred Thousand Dollars ($1,500,000.00).
"Commitment Termination Date" is December 31, 1999.
"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 scaled 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 Equipment Advance or any other extension of
credit by Bank for Borrower's benefit.
13
"Default Rate" is defined in Section 2.3(b).
"Eligible Equipment" is general purpose computer equipment, office
equipment, test and laboratory equipment, furnishings, and, subject to any
limitations set forth below, Other Equipment that complies with all of
Borrower's representations and warranties to Bank and which is acceptable to
Bank in all respects. All Equipment financed with the proceeds of Equipment
Advances shall be new, provided that Bank, in its sole discretion, may finance
used equipment.
"Equipment" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"Equipment Advance" is defined in Section 2.1.1.
"ERISA" is the Employment Retirement Income Security Act of 1974, and
its regulations.
"Final Payment" is a payment (in addition to, and not a substitution
for, the regular monthly payments of principal plus accrued interest) due on the
Maturity Date for such Equipment Advance equal to the Loan Amount for such
Equipment Advance at such time multiplied by the Final Payment Percentage.
"Final Payment Percentage" is, for each Equipment Advance, six and
three quarters percent (6.75%). "Financed Equipment' is defined in the Loan
Supplement.
"Funding Date" is any date on which an Equipment Advance is made to or
on account of Borrower. "GAAP" is generally accepted accounting principles.
"Indebtedness" is (a) indebtedness for borrowed money or the deterred
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" is any proceeding 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.
"Lien" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"Loan Amount" is the aggregate amount of the Equipment Advance.
"Loan Factor" is the percentage which results from dividing (i) the
monthly Scheduled Payment with respect to the applicable Equipment Advance by
(ii) the original principal amount of such Equipment Advance.
14
"Loan Margin" is three hundred (300) basis points.
"Loss Supplement" is attached as EXHIBIT B.
"Loan Documents" are, collectively, this Agreement, any note, or notes
or guaranties executed by Borrower, 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.
"Maturity Date" is, with respect to each Equipment Advance, the last
day of the Repayment Period for such Equipment Advance, or if earlier, the date
of' acceleration of such Equipment Advance by Bank following an Event of
Default.
"May Agreement" is defined in Section 8.7.
"Obligations" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including letter of credit and foreign
exchange contracts, if any, and including interest accruing after Insolvency
Proceedings begin and debts, liabilities, or obligations of Borrower assigned to
Bank.
"Original Stated Cost" is (i), the original cost to the Borrower of the
item of new Equipment net of any and all freight, installation, tax, or (ii) the
fair market value assigned to such item of used Equipment by mutual agreement of
Borrower and Bank at the time of making of the Equipment Advance.
"Other Equipment" is leasehold improvements, intangible property such
as computer software and software licenses, equipment specifically designed or
manufactured for Borrower, other intangible property, limited use property and
other similar property.
"Payment Date" is defined in Section 2.3(a).
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"Repayment Period," as to each Equipment Advance, is thirty six (36)
months.
"Responsible Officer" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"Schedule" is any attached schedule of exceptions. "Scheduled Payments"
is defined in Section 2.3(a).
"Subordinated Debt" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
15
"Subsidiary" is for any Person, joint ventures, or any other business
entity of which more than 50% of the voting stock or other equity interest 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 plus Subordinated Debt.
"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.
"Treasury Note Maturity" is thirty six (36) months.
16
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest
in and to the following:
Each item of equipment, or personal property financed with an
"Equipment Advance" pursuant to that certain Loan and Security Agreement, dated
as of August __,1999 (the "Loan Agreement"), by and between Debtor and Secured
Party, including, without limitation, the property described in Annex A hereto,
whether now owned or hereafter acquired, together with all substitutions,
renewals or replacements of and additions, improvements, and accessions to any
and all of the foregoing, and all proceeds from sales, renewals, releases or
other dispositions thereof.
17
EXHIBIT B
FORM OF LOAN AGREEMENT SUPPLEMENT
LOAN AGREEMENT SUPPLEMENT No. [ ]
LOAN AGREEMENT SUPPLEMENT No. [ ], dated _________,19__ ("Supplement"),
to the Loan and Security Agreement, dated as of ___________, 1999 (the "Loan
Agreement), by and between the undersigned Opus360 Corporation ("Borrower") and
Silicon Valley Bank ('Bank").
Capitalized terms used herein but not otherwise defined herein are used
with the respective meanings given to such terms in the Loan Agreement.
To secure the prompt payment by Borrower of all amounts from time to time
outstanding under the Loan Agreement, and the performance by Borrower of all the
terms contained in the Loan Agreement, Borrower grants Bank, a first priority
security interest in each item of equipment and other property described in
Annex A hereto, which equipment and other property shall be deemed to be
additional Financed Equipment and Collateral. The Loan Agreement is hereby
incorporated by reference herein and is hereby ratified, approved and confirmed.
Annex A (Equipment Schedule) and Annex B (Loan Terms Schedule) are attached
hereto. The proceeds of the Loan should be transferred to Borrower's account
with Bank set forth below:
Bank Name: Silicon Valley Bank
Account No.:
Borrower hereby certifies that (a) the foregoing information is true and correct
and authorizes Bank to endorse in its respective books and records, the Basic
Rate applicable to the Funding Date of the Loan contemplated in this Loan
Agreement Supplement and the principal amount set forth in the Loan Terms
Schedule; (b) the representations and warranties made by Borrower in the Loan
Agreement are true and correct on the date hereof and will be true and correct
on such Funding Date. No Event of Default has occurred and is continuing under
the Loan Agreement. This Supplement may be executed by Borrower and Bank in
separate counterparts, each of which when so executed and delivered, shall be an
original, but all such counterparts shall together constitute but one and the
same Instrument.
This Supplement is delivered as of this day and year first above
written.
SILICON VALLEY BANK OPUS30 CORPORATION
By: By:
-------------------------- --------------------------
Name: Name:
--------------------- ---------------------
Title: Title:
-------------------- --------------------
Annex A - Description of Financed Equipment
Annex B - Loan Terms Schedule
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ANNEX A TO EXHIBIT B
The Financed Equipment being financed with the Equipment Advance which
this Loan Agreement Supplement is being executed, is listed below. Upon the
funding of such Equipment Advance, this schedule automatically shall be deemed
to be a part of the Collateral.
19
ANNEX B TO EXHIBIT B
LOAN TERMS SCHEDULE #_________
Loan Funding Date: _____________, 199_
Original Loan Amount: $__________
Basic Rate: ________%
Loan Factor. ________%
Scheduled Payment Dates and Amounts*:
One (l) payment of $______ due ____________
_____ payment of $______ due monthly in advance from ____ through ______
One (l) payment of $______ due ____________
Maturity Date:
Final Payment: An additional amount equal to the Final Payment Percentage
multiplied by the Loan Amount then in effect, shall be paid on the
Maturity Date with respect to such Loan.
Payment No. Payment Date
1
2
3
4
...
35
[36]
...
* The amount of each Scheduled Payment will change as the Loan Amount changes.
20
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM: OPUS360 CORPORATION
The undersigned authorized officer of OPUS360 CORPORATION certifies
that under the terms and conditions of the Loan and Security Agreement, dated as
of August __, 1999, 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 Monthly within 30 days Yes No
Annual (CPA Audited) FYE within 120 days Yes No
10-Q, 10-K and 8-K Within 5 days after filing with SEC Yes No
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
Minimum Tangible Net Worth $2,000,000,00 $____ Yes No
(tested monthly)
Equity Executed commitment Yes No
By 9/30/99
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely, BANK USE ONLY
SIGNATURE RECEIVED BY:
AUTHORIZED SIGNER
TITLE DATE:
-------------------------------- VERIFIED:
Date AUTHORIZED SIGNER
DATE:
21
LOAN AND SECURITY AGREEMENT
by and between
SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
ATTN: Loan Services
(000) 000-0000
and
OPUS360 CORPORATION
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
TOTAL CREDIT AMOUNT: $1,500,000.00
Date: August 17, 1999
Repayment Period: 36 months
Treasury Note Maturity: 36 months
Final Payment Percentage: 6.75% Loan Margin: 300 basis points
Minimum Funding Amount: $50,000.00
Maximum Number of Loans Ten (10)
Commitment Termination Date: December 31, 1999
The terms and information set forth on this cover page are a part of
the attached Loan and Security Agreement, dated as of the date first written
above (this "Agreement"), entered into by and between Silicon Valley Bank
("Bank") and the borrower ("Borrower") set forth above. The terms and conditions
of this Agreement agreed to between Bank and Borrower are as follows:
NEGATIVE PLEDGE AGREEMENT
This Negative Pledge Agreement is made as of ___________, 1999 by and
between OPUS360 CORPORATION, a Delaware corporation ("Borrower") and SILICON
VALLEY BANK, a California-chartered bank, with its principal place of business
at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production
office located at Wellesley Office Park, 00 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley
East" ("Bank").
In connection with, among other documents, the Loan and Security
Agreement (the "Loan Documents') being concurrently executed herewith between
Borrower and Bank, Borrower agrees as follows:
1. Except for the granting of licenses or sublicenses by Borrower in
the ordinary course of business, Borrower shall not sell, transfer, assign,
mortgage, pledge, lease, grant a security interest in, or encumber any of the
Borrower's Intellectual Property (as defined below):
2. Borrower has not, and shall not, enter into a negative pledge
agreement, or similar agreement, affecting the rights of the Intellectual
Property with any other party.
3. It shall be an event of default under the Loan Documents between
Borrower and Bank if there is a breach of any term of this Negative Pledge
Agreement.
4. As used herein,
(a) "Intellectual Property" means:
(i) Any and all Copyrights;
(ii) Any and all trade secrets, and any and all intellectual
property rights in computer software and computer software products now
or hereafter existing, created, acquired or held;
(iii) Any and all design rights which may be available to
Borrower now or hereafter existing, created, acquired or held;
(iv) All Mask Works or similar rights available for the
protection of semiconductor chips;
(v) All Patents;
(vi) Any Trademarks;
(vii) Any and all claims for damages by way of past, present
and future infringements of any of the rights included above, with the
right, but not the obligation, to xxx for and collect such damages for
said use or infringement of the intellectual property rights identified
above;
(viii) All licenses or other rights to use any of the
Copyrights, Patents, Trademarks, or Mask Works and all license fees and
royalties arising from such use to the extent permitted by such license
or rights;
(ix) All amendments, extensions, renewals and extensions of
any of the Copyrights, Trademarks, Patents, or Mask Works; and
(x) All proceeds and products of the foregoing, including
without limitation all payments under insurance or any indemnity or
warranty payable in respect of any of the foregoing.
(b) "Copyrights" means any and all copyright rights, copyright
applications, copyright registrations and like protections in each work or
authorship and derivative work thereof, whether published or unpublished and
whether or not the same also constitutes a trade secret, now or hereafter
existing, created, acquired or held.
(c) "Mask Works" means all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter acquired;
(d) "Patents" means all patents, patent applications and like
protections including without limitation improvements, divisions, continuations,
renewals, reissues, extensions and continuations-in-part of the same.
(e) "Trademarks" means any trademark and servicemark rights, whether
registered or not, applications to register and registrations of the same and
like protections, and the entire goodwill of the business of Borrower connected
with and symbolized by such trademarks.
5. Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Documents.
6. The laws of the Commonwealth of Massachusetts shall apply to this
Agreement. BORROWER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE COMMONWEALTH OF MASSACHUSETTS IN ANY ACTION, SUIT,
OR PROCEEDING OF ANY KIND, AGAINST IT WHICH ARISES OUT OF OR BY REASON OF THIS
AGREEMENT; PROVIDED, HOWEVER, THAT IF FOR ANY REASON BANK CANNOT AVAIL ITSELF OF
THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS, BORROWER ACCEPTS JURISDICTION
OF THE COURTS AND VENUE IN SANTA XXXXX COUNTY, CALIFORNIA.
7. This Agreement shall become effective only when it shall have been
executed by Borrower and Bank (provided, however, in no event shall this
Agreement become effective until signed by an officer of Bank in California).
-2-
EXECUTED as a sealed instrument this ______ day of ________, 1999 under
the laws of the Commonwealth of Massachusetts.
BORROWER:
OPUS360 CORPORATION
By:
----------------------------------
Name:
Title:
BANK:
SILICON VALLEY BANK
D/B/A SILICON VALLEY EAST
By:
----------------------------------
Name:
Title:
SILICON VALLEY BANK
By:
-----------------------------------
Name:
Title:
(Signed in Santa Clara, California)
