EXHIBIT 10.5
LOAN AND SECURITY AGREEMENT
CORILLIAN CORPORATION
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TABLE OF CONTENTS
PAGE
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1 ACCOUNTING AND OTHER TERMS 1
2 LOAN AND TERMS OF PAYMENT 1
2.1 Credit Extensions 1
2.2 Overadvance 2
2.3 Interest Rate, Payments 2
2.4 Fees 3
3 CONDITIONS OF LOANS 3
3.1 Conditions Precedent to Initial Credit Extension 3
3.2 Conditions Precedent to all Credit Extensions 3
4 CREATION OF SECURITY INTEREST 3
4.1 Grant of Security Interest 3
5 REPRESENTATIONS AND WARRANTIES 4
5.1 Due Organization and Authorization 4
5.2 Collateral and Other Assets 4
5.3 Litigation 4
5.4 No Material Adverse Change in Financial Statements 4
5.5 Solvency 4
5.6 Regulatory Compliance 5
5.7 Subsidiaries 5
5.8 Full Disclosure 5
6 AFFIRMATIVE COVENANTS 5
6.1 Government Compliance 5
6.2 Financial Statements, Reports, Certificates 5
6.3 Inventory; Returns 6
6.4 Taxes 6
6.5 Insurance 6
6.6 Deposit/Investment Account 6
6.7 Financial Covenants 6
6.8 Further Assurances 7
7 NEGATIVE COVENANTS 7
7.1 Dispositions 7
7.2 Changes in Business, Ownership, Management or Business Locations 7
7.3 Mergers or Acquisitions 7
7.4 Indebtedness 7
7.5 Encumbrance 7
7.6 Distributions; Investments 8
7.7 Transactions with Affiliates 8
7.8 Compliance 8
8 EVENTS OF DEFAULT 8
8.1 Payment Default 8
8.2 Covenant Default 8
8.3 Material Adverse Change 8
8.4 Attachment 8
8.5 Insolvency 9
8.6 Other Agreements 9
8.7 Judgments 9
8.8 Misrepresentations 9
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9 BANK'S RIGHTS AND REMEDIES 9
9.1 Rights and Remedies 9
9.2 Power of Attorney 10
9.3 Accounts Collection 10
9.4 Bank Expenses 10
9.5 Bank's Liability for Collateral 11
9.6 Remedies Cumulative 11
9.7 Demand Waiver 11
10 NOTICES 11
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER 11
12 GENERAL PROVISIONS 11
12.1 Successors and Assigns 11
12.2 Indemnification 12
12.3 Time of Essence 12
12.4 Severability of Provision 12
12.5 Amendments in Writing, Integration 12
12.6 Counterparts 12
12.7 Survival 12
12.8 Confidentiality 12
12.9 Attorneys' Fees, Costs and Expenses 13
13 DEFINITIONS 13
13.1 Definitions 13
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THIS LOAN AND SECURITY AGREEMENT dated November 9, 2000, between SILICON
VALLEY BANK ("Bank"), whose address is 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx 00000 with a loan production office located at 00000 X. X. Xxxxxxx,
Xxxxx 000, Xxxxxxxxx, XX 00000-0000 and CORILLIAN CORPORATION ("Borrower"),
whose address is 0000 X.X. 000xx Xxxxx, Xxxxxxxxx, XX 00000, provides the terms
on which Bank will lend to Borrower and Borrower will repay Bank. The parties
agree as follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed following
GAAP. Calculations and determinations must be made following GAAP. The term
"financial statements" includes the notes and schedules. The terms "including"
and "includes" always mean "including (or includes) without limitation," in this
or any Loan Document. This Agreement shall be construed to impart upon Bank a
duty to act reasonably at all times.
2 LOAN AND TERMS OF PAYMENT
2.1 CREDIT EXTENSIONS.
Borrower will pay Bank the unpaid principal amount of all Credit Extensions
and interest on the unpaid principal amount of the Credit Extensions.
2.1.1 REVOLVING ADVANCES.
(a) Bank will make Advances not exceeding (i) the Committed Revolving Line,
minus (ii) the principal balance outstanding under the Committed Equipment Line.
However, if Borrower's Adjusted Quick Ratio falls below 3.0:1.0, Advances under
the Committed Revolving Line shall not exceed (i) the lesser of the Committed
Revolving Line or the Borrowing Base, minus (ii) the principal balance
outstanding under the Committed Equipment Line. Amounts borrowed under this
Section may be repaid and reborrowed during the term of this Agreement.
(b) To obtain an Advance, Borrower must notify Bank by facsimile or
telephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be
made. Borrower must promptly confirm the notification by delivering to Bank the
Payment/Advance Form attached as Exhibit B. Bank will credit Advances to
Borrower's deposit account. Bank may make Advances under this Agreement based on
instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have become
due. Bank may rely on any telephone notice given by a person whom Bank believes
is a Responsible Officer or designee. Borrower will indemnify Bank for any loss
Bank suffers due to such reliance.
(c) The Committed Revolving Line terminates on the Revolving Maturity Date,
when all Advances are immediately payable.
2.1.2 EQUIPMENT ADVANCES.
(a) Through November 9, 2001 (the "Equipment Availability End Date"), Bank
will make advances ("Equipment Advance" and, collectively, "Equipment Advances")
not exceeding (i) the Committed Equipment Line, minus (ii) the principal balance
outstanding under the Committed Revolving Line. The Equipment Advances may be
used to finance Eligible Equipment purchased within 120 days of the Equipment
Advance and may not exceed 100% of the equipment invoice excluding taxes,
shipping, warranty charges, freight discounts and installation expense. The
Equipment Advances may also be used to finance Eligible Equipment purchased more
than 120 days prior to the date of the Equipment Advance; however, such
Equipment Advances may not exceed 75% of the net book value of the applicable
equipment. Other Equipment may constitute up to 25% of each Equipment Advance
for equipment purchased within 120 days of the date of the Equipment Advance.
Equipment Advances shall be in the minimum amount of $250,000.
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(b) Interest accrues from the date of each Equipment Advance at the rate in
Section 2.3 (a) and is payable monthly until the Equipment Availability End Date
occurs. Equipment Advances shall be repaid as follows:
(i) Prime Rate Option: If Borrower selects the Prime Rate pricing
option, Borrower shall repay the amount of principal drawn in forty-seven
(47) equal monthly payments of principal plus accrued interest and one
final payment of all outstanding principal and accrued interest.
(ii) Fixed Rate Option: If Borrower selects the fixed rate pricing
option, Borrower shall repay the amount of principal drawn in forty-seven
(47) equal monthly payments including both principal and interest, and one
final payment of all outstanding principal and accrued interest.
(c) To obtain an Equipment Advance, Borrower must notify Bank (the notice
is irrevocable) by facsimile no later than 3:00 p.m. Pacific time 1 Business Day
before the day on which the Equipment Advance is to be made. The notice in the
form of Exhibit B (Payment/Advance Form) must be signed by a Responsible Officer
or designee and include a copy of the invoice for the Equipment being financed.
(d) 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.
2.2 OVERADVANCE.
If Borrower's Obligations under Sections 2.1.1 and 2.1.2 together exceed
$5,000,000, or the amount available pursuant to Sections 2.1.1 and 2.1.2,
Borrower must immediately pay in cash to Bank the excess.
2.3 INTEREST RATE, PAYMENTS.
(a) Interest Rate. Advances under the Committed Revolving Line accrue
interest on the outstanding principal balance at a per annum rate of 0.50% above
the Prime Rate. Equipment Advances under the Committed Equipment Line accrue
interest at a per annum rate of (i) 1.00% above the Prime Rate, or (ii) 3.50%
above the applicable rate for U.S. Treasury securities of equal maturity. The
Borrower shall select the Prime Rate option or fixed rate option at the same
time notice is provided pursuant to Section 2.1.4(c). After an Event of Default,
Obligations accrue interest at 5.00% above the rate effective immediately before
the Event of Default. The interest rate increases or decreases when the Prime
Rate changes. Interest is computed on a 360 day year for the actual number of
days elapsed.
(b) Payments. Interest due on the Committed Revolving Line is payable on
the first of each month. Principal and interest due on the Equipment Advances
are payable on the first of each month. Payments received after 12:00 noon
Pacific time are considered received at the opening of business on the next
Business Day. When a payment is due on a day that is not a Business Day, the
payment is due the next Business Day and additional fees or interest accrue.
(c) Permitted Prepayment of Loans. Borrower shall have the option to prepay
the Equipment Advances advanced by Bank under this Agreement, provided Borrower
(i) provides written notice to Bank of its election to prepay the Equipment
Advances at least fifteen (15) days prior to such prepayment, and (ii) pays, on
the date of the prepayment (A) all accrued unpaid interest with respect to the
Equipment Advances; (B) a prepayment fee equivalent to 3.0% of the amount
prepaid in the first twelve (12) months; 2.0% of the amount prepaid in the
second twelve (12) months; and 1.0% of the amount prepaid in the third twelve
(12) months; and (C) all other sums, if any, that shall have become due and
payable hereunder with respect to this Agreement.
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2.4 FEES.
Borrower will pay:
(a) Loan Fee. A fully earned, non-refundable loan fee of 0.50% of the
Committed Revolving Line ($25,000).
(b) Bank Expenses. All Bank Expenses (including reasonable attorneys' fees
and reasonable expenses) incurred through and after the date of this Agreement,
are payable when due. Attorneys' fees associated with the preparation of this
Agreement shall be limited to $3,000; however, Borrower acknowledges that any
future attorneys' fees incurred by Bank in connection with the administration or
modification of this Agreement shall not be included in this amount. In the
event of any action or proceeding arising out of the Loan Documents, attorneys'
fees shall be allocated in accordance with Section 12.9 below.
3 CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION.
Bank's obligation to make the initial Credit Extension is subject to the
condition precedent that it receive the agreements, documents and fees it
requires.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS.
Bank's obligations to make each Credit Extension, including the initial
Credit Extension, is subject to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be materially true
on the date of the Payment/Advance Form and on the effective date of each Credit
Extension and no Event of Default may have occurred and be continuing, or result
from the Credit Extension. Each Credit Extension is Borrower's representation
and warranty on that date that the representations and warranties of Section 5
remain true.
4 CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST.
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Except for Permitted
Liens, any security interest will be a first priority security interest in the
Collateral. Bank may place a "hold" on any deposit account pledged as
Collateral. If this Agreement is terminated, Bank's lien and security interest
in the Collateral will continue until Borrower fully satisfies its Obligations.
Borrower does not grant Bank a security interest in, or lien on, its
Intellectual Property. Borrower agrees not to grant a security interest in its
Intellectual Property to any Person, or to sell, transfer, assign, mortgage,
pledge, lease or encumber such Intellectual Property, without the prior written
consent of Bank so long as this Agreement, as amended or modified, remains in
effect.
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5 REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION.
Borrower and each Subsidiary is duly existing and in good standing in its
state of formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be qualified, except where the failure to do so could
not reasonably be expected to cause a Material Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it is
bound in which the default could reasonably be expected to cause a Material
Adverse Change.
5.2 COLLATERAL AND OTHER ASSETS.
Borrower has good title to the Collateral, free of Liens except Permitted
Liens. The Accounts are bona fide, existing obligations, and the service or
property has been performed or delivered to the account debtor or its agent for
immediate shipment to and unconditional acceptance by the account debtor.
Borrower has no notice of any actual or imminent Insolvency Proceeding of any
account debtor whose accounts are an Eligible Account in any Borrowing Base
Certificate. All Inventory is in all material respects of good and marketable
quality, free from material defects. Borrower is the sole owner of the
Intellectual Property, except for non-exclusive licenses granted to its
customers in the ordinary course of business. Each Patent is valid and
enforceable and no part of the Intellectual Property has been judged invalid or
unenforceable, in whole or in part, and no claim has been made that any part of
the Intellectual Property violates the rights of any third party, except to the
extent such claim could not reasonably be expected to cause a Material Adverse
Change.
5.3 LITIGATION.
Except as shown in the Schedule, there are no actions or proceedings
pending or, to the knowledge of Borrower's Responsible Officers and legal
counsel, threatened by or against Borrower or any Subsidiary in which a likely
adverse decision could reasonably be expected to cause a Material Adverse
Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS.
All consolidated financial statements for Borrower, and any Subsidiary,
delivered to Bank fairly present in all material respects Borrower's
consolidated financial condition and Borrower's consolidated results of
operations. There has not been any material deterioration in Borrower's
consolidated financial condition since the date of the most recent financial
statements submitted to Bank.
5.5 SOLVENCY.
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; the Borrower is
not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
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5.6 REGULATORY COMPLIANCE.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Borrower is not engaged
as one of its important activities in extending credit for margin stock (under
Regulations T and U of the Federal Reserve Board of Governors). Borrower has
complied in all material respects with the Federal Fair Labor Standards Act.
Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of
Borrower's or any Subsidiary's properties or assets has been used by Borrower or
any Subsidiary or, to the best of Borrower's knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Borrower and each Subsidiary has timely filed all required
tax returns and paid, or made adequate provision to pay, all material taxes,
except those being contested in good faith with adequate reserves under GAAP.
Borrower and each Subsidiary has obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so could not reasonably be
expected to cause a Material Adverse Change.
5.7 SUBSIDIARIES.
Except as shown in the Schedule, Borrower does not own any stock,
partnership interest or other equity securities except for Permitted
Investments.
5.8 FULL DISCLOSURE.
No written representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading. It
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results.
6 AFFIRMATIVE COVENANTS
Borrower will do all of the following:
6.1 GOVERNMENT COMPLIANCE.
Borrower will maintain its and all Subsidiaries' legal existence and good
standing in its jurisdiction of formation and maintain qualification in each
jurisdiction in which the failure to so qualify would reasonably be expected to
cause a material adverse effect on Borrower's business or operations. Borrower
will comply, and have each Subsidiary comply, with all laws, ordinances and
regulations to which it is subject, noncompliance with which could have a
material adverse effect on Borrower's business or operations or would reasonably
be expected to cause a Material Adverse Change.
6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower will deliver to Bank: (i) as soon as available, but no later
than five (5) days after filing with the Securities and Exchange Commission,
Borrower's 10-Q quarterly report and a Compliance Certificate in the form of the
attached Exhibit C; (ii) as soon as available, but no later than five (5) days
after filing with the Securities and Exchange Commission Borrower's annual 10-K
report and a Compliance Certificate in the form of the attached Exhibit C for
the quarterly period then ending; (iii) as soon as available, but no later than
120 days after the last day of Borrower's fiscal year, audited consolidated
financial statements prepared under GAAP, consistently applied,
PAGE 5 - LOAN AND SECURITY AGREEMENT
together with an unqualified opinion on the financial statements from an
independent certified public accounting firm reasonably acceptable to Bank; (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 or more; and (v) budgets, sales projections, operating
plans or other financial information Bank reasonably requests.
(b) If the Borrowing Base applies pursuant to Section 2.1.1, Borrower will
deliver to Bank within 20 days of the end of each month (i) a Borrowing Base
Certificate in the form of Exhibit D attached, (ii) an accounts receivable
aging, (iii) an accounts payable aging, and (iv) within 20 days after the end of
each month, Borrower shall deliver to Bank a deferred revenue listing.
(c) If more than $500,000 is outstanding under the Committed Revolving Line
at any one time, Bank shall have the right to audit Borrower's Collateral
annually at Borrower's expense.
(d) Within five (5) days of filing with the Securities and Exchange
Commission, Borrower shall deliver copies of any filings with the Securities and
Exchange Commission not listed in 6.2(a) above.
6.3 INVENTORY; RETURNS.
Borrower will keep all Inventory in good and marketable condition, free
from material defects. Returns and allowances between Borrower and its account
debtors will follow Borrower's customary practices as they exist at execution of
this Agreement. Borrower must promptly notify Bank of all returns, recoveries,
disputes and claims, that involve more than $100,000.
6.4 TAXES.
Borrower will make, and cause each Subsidiary to make, timely payment of
all material federal, state, and local taxes or assessments and will deliver to
Bank, on demand, appropriate certificates attesting to the payment.
6.5 INSURANCE.
Borrower will keep its business and the Collateral insured for risks and in
amounts, as Bank may reasonably request. Insurance policies will be in a form,
with companies, and in amounts that are satisfactory to Bank in Bank's
reasonable discretion. All property policies will have a lender's loss payable
endorsement showing Bank as an additional loss payee and all liability policies
will show the Bank as an additional insured and provide that the insurer must
give Bank at least 20 days notice before canceling its policy. At Bank's
request, Borrower will deliver certified copies of policies and evidence of all
premium payments. Proceeds payable under any policy will, at Bank's option, be
payable to Bank on account of the Obligations.
6.6 DEPOSIT/INVESTMENT ACCOUNT.
Borrower will exercise their best efforts to maintain a deposit or
investment account with Bank in a minimum amount of $1,000,000. Failure to
maintain such an account shall not constitute an Event of Default.
6.7 FINANCIAL COVENANTS.
Borrower will maintain as of the last day of each quarter:
(i) Adjusted Quick Ratio. A ratio of (i) Quick Assets to (ii)
Current Liabilities, less deferred revenue plus the long-term portion
of all outstanding Equipment Advances, of at least 2.0:1.0. Once
Borrower has maintained a Debt Service Coverage Ratio of 2.0:1.0 for
two consecutive quarters, the Adjusted Quick Ratio will be amended to
eliminate the long-term portion of all
PAGE 6 - LOAN AND SECURITY AGREEMENT
Equipment Advances. Concurrently, a Debt Service Coverage Ratio
covenant of 2.0:1.0 will be implemented.
(ii) Tangible Net Worth. A minimum Tangible Net Worth of not less
than $30,000,000.
6.8 FURTHER ASSURANCES.
Borrower will execute any further instruments and take further action as
Bank reasonably requests to perfect or continue Bank's security interest in the
Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
Borrower will not do any of the following without Bank's prior written
consent, which will not be unreasonably withheld:
7.1 DISPOSITIONS.
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its Subsidiaries to Transfer, all or any part of
its business or property, other than Transfers (i) of Inventory in the ordinary
course of business; (ii) of non-exclusive licenses and similar arrangements for
the use of the property of Borrower or its Subsidiaries in the ordinary course
of business; or (iii) of worn-out or obsolete Equipment.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS.
Engage in or permit any of its Subsidiaries to engage in any business other
than the businesses currently engaged in by Borrower or reasonably related
thereto or have a material change in its ownership or management (other than the
sale of Borrower's equity securities in a public offering or to venture capital
investors approved by Bank) of greater than 25%. Borrower will not, without at
least 30 days prior written notice, relocate its chief executive office or add
any new offices or business locations.
7.3 MERGERS OR ACQUISITIONS.
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any other Person, or acquire, or permit any of its
Subsidiaries to acquire, all or substantially all of the capital stock or
property of another Person, except where (i) no Event of Default has occurred
and is continuing or would result from such action during the term of this
Agreement and (ii) such transaction would not result in a decrease of more than
25% of Tangible Net Worth. A Subsidiary may merge or consolidate into another
Subsidiary or into Borrower.
7.4 INDEBTEDNESS.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 ENCUMBRANCE.
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
here, subject to Permitted Liens.
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7.6 DISTRIBUTIONS; INVESTMENTS.
Directly or indirectly acquire or own any Person, or make any Investment in
any Person, other than Permitted Investments, or permit any of its Subsidiaries
to do so. Pay any dividends or make any distribution or payment or redeem,
retire or purchase any capital stock.
7.7 TRANSACTIONS WITH AFFILIATES.
Directly or indirectly enter into or permit any material transaction with
any Affiliate except transactions that are in the ordinary course of Borrower's
business, on terms less favorable to Borrower than would be obtained in an arm's
length transaction with a non-affiliated Person.
7.8 COMPLIANCE.
Become an "investment company" or a company controlled by an "investment
company," under the Investment Company Act of 1940 or undertake as one of its
important activities extending credit to purchase or carry margin stock, or use
the proceeds of any Credit Extension for that purpose; fail to meet the minimum
funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair
Labor Standards Act or violate any other law or regulation, if the violation
could reasonably be expected to have a material adverse effect on Borrower's
business or operations or would reasonably be expected to cause a Material
Adverse Change, or permit any of its Subsidiaries to do so.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT.
If Borrower fails to pay any of the Obligations within 3 days after their
due date. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extension will be made during the cure period);
8.2 COVENANT DEFAULT.
If Borrower violates any covenant in Section 7 or does not perform or
observe any other material term, condition or covenant in this Agreement, any
Loan Documents, or in any agreement between Borrower and Bank and as to any
default under a term, condition or covenant that can be cured, has not cured the
default within 10 days after it occurs, or if the default cannot be cured within
10 days or cannot be cured after Borrower's attempts within 10 day period, and
the default may be cured within a reasonable time, then Borrower has an
additional period (of not more than 30 days) to attempt to cure the default.
During the additional time, the failure to cure the default is not an Event of
Default (but no Credit Extensions will be made during the cure period);
8.3 MATERIAL ADVERSE CHANGE.
If there (i) occurs a material impairment in the perfection or priority of
the Bank's security interest in the Collateral or in the value of such
Collateral which is not covered by adequate insurance or (ii) is a material
impairment of the prospect of repayment of any portion of the Obligations.
8.4 ATTACHMENT.
If any material portion of Borrower's assets is attached, seized, levied
on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days, or if Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business or if a judgment or other claim becomes a Lien on a material portion of
Borrower's
PAGE 8 - LOAN AND SECURITY AGREEMENT
assets, or if a notice of lien, levy, or assessment is filed against any of
Borrower's assets by any government agency and not paid within 10 days after
Borrower receives notice. These are not Events of Default if stayed or if a bond
is posted pending contest by Borrower (but no Credit Extensions will be made
during the cure period);
8.5 INSOLVENCY.
If Borrower becomes insolvent or if Borrower begins an Insolvency
Proceeding or an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 30 days (but no Credit Extensions will be made before
any Insolvency Proceeding is dismissed);
8.6 OTHER AGREEMENTS.
If there is a default in any agreement between Borrower and a third party
that gives the third party the right to accelerate any Indebtedness exceeding
$100,000 or that could cause a Material Adverse Change;
8.7 JUDGMENTS.
If a money judgment(s) in the aggregate of at least $50,000 is rendered
against Borrower and is unsatisfied and unstayed for 10 days (but no Credit
Extensions will be made before the judgment is stayed or satisfied); or
8.8 MISREPRESENTATIONS.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement now or later in any warranty or
representation in this Agreement or in any writing delivered to Bank or to
induce Bank to enter this Agreement or any Loan Document.
9 BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES.
When an Event of Default occurs and continues Bank may, without notice or
demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event of
Default described in Section 8.5 occurs all Obligations are immediately due and
payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's benefit under
this Agreement or under any other agreement between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors for
amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or reasonable
to protect its security interest in the Collateral. Borrower will assemble the
Collateral if Bank requires and make it available as Bank designates. Bank may
enter premises where the Collateral is located, take and maintain possession of
any part of the Collateral, and pay, purchase, contest, or compromise any Lien
which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of its
premises, without charge, to exercise any of Bank's rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of Borrower it
holds, or (ii) any amount held by Bank owing to or for the credit or the account
of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, and sell the Collateral. Bank is granted a
non-exclusive, royalty-free license or other right to use, without charge,
Borrower's labels, Patents, Copyrights, Mask Works, rights of use of any name,
PAGE 9 - LOAN AND SECURITY AGREEMENT
trade secrets, trade names, Trademarks, service marks, and advertising matter,
or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section, Borrower's
rights under all licenses and all franchise agreements inure to Bank's benefit;
and
(g) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY.
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name
on any checks or other forms of payment or security; (ii) sign Borrower's name
on any invoice or xxxx of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower's insurance
policies; (iv) settle and adjust disputes and claims about the Accounts directly
with account debtors, for amounts and on terms Bank determines reasonable; and
(v) transfer the Collateral into the name of Bank or a third party as the Code
permits. Bank may exercise the power of attorney to sign Borrower's name on any
documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrower's attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 ACCOUNTS COLLECTION.
When an Event of Default occurs and continues, Bank may notify any Person
owing Borrower money of Bank's security interest in the funds and verify the
amount of the Account. Borrower must collect all payments in trust for Bank and,
if requested by Bank, immediately deliver the payments to Bank in the form
received from the account debtor, with proper endorsements for deposit.
9.4 BANK EXPENSES.
If Borrower fails to pay any amount or furnish any required proof of
payment to third persons, Bank may make all or part of the payment or obtain
insurance policies required in Section 6.5, and take any action under the
policies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and
immediately due and payable, bearing interest at the then applicable rate and
secured by the Collateral. No payments by Bank are deemed an agreement to make
similar payments in the future or Bank's waiver of any Event of Default.
Pursuant to ORS 746.201, following is a statutory notice regarding insurance
coverage:
WARNING
Unless you provide us with evidence of the insurance coverage as required
by our contract or loan agreement, we may purchase insurance at your
expense to protect our interest. This insurance may, but need not, also
protect your interest. If the collateral becomes damaged, the coverage we
purchase may not pay any claim you make or any claim made against you. You
may later cancel this coverage by providing evidence that you have obtained
property coverage elsewhere.
You are responsible for the cost of any insurance purchased by us. The
cost of this insurance may be added to your contract or loan balance. If
the cost is added to your contract or loan balance, the interest rate on
the underlying contract or loan will apply to this added amount. The
effective date of coverage may be the date your prior coverage lapsed or
the date you failed to provide proof of coverage.
The coverage we purchase may be considerably more expensive than
insurance you can obtain on your own and may not satisfy any need for
property damage coverage or any mandatory liability insurance requirements
imposed by applicable law.
PAGE 10 - LOAN AND SECURITY AGREEMENT
9.5 BANK'S LIABILITY FOR COLLATERAL.
If Bank complies with reasonable banking practices and Section 9-207 of the
Code, it is not liable for: (a) the safekeeping of the Collateral; (b) any loss
or damage to the Collateral; (c) any diminution in the value of the Collateral;
or (d) any act or default of any carrier, warehouseman, bailee, or other person.
Borrower bears all risk of loss, damage or destruction of the Collateral.
9.6 REMEDIES CUMULATIVE.
Bank's rights and remedies under this Agreement, the Loan Documents, and
all other agreements are cumulative. Bank has all rights and remedies provided
under the Code, by law, or in equity. Bank's exercise of one right or remedy is
not an election, and Bank's waiver of any Event of Default is not a continuing
waiver. Bank's delay is not a waiver, election, or acquiescence. No waiver is
effective unless signed by Bank and then is only effective for the specific
instance and purpose for which it was given.
9.7 DEMAND WAIVER.
Borrower waives demand, notice of default or dishonor, notice of payment
and nonpayment, notice of any default, nonpayment at maturity, release,
compromise, settlement, extension, or renewal of accounts, documents,
instruments, chattel paper, and guarantees held by Bank on which Borrower is
liable.
10 NOTICES
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by telefacsimile to the addresses set forth at the beginning of
this Agreement. A party may change its notice address by giving the other party
written notice.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
Oregon law governs the Loan Documents without regard to principles of
conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Multnomah County, Oregon.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY THE
BANK AFTER OCTOBER 3, 1989 CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH
ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE
BORROWER'S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY
US TO BE ENFORCEABLE.
12 GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS.
This Agreement binds and is for the benefit of the successors and permitted
assigns of each party. Borrower may not assign this Agreement or any rights
under it without Bank's prior written consent which may be granted or withheld
in Bank's discretion. Bank has the right, without the
PAGE 11 - LOAN AND SECURITY AGREEMENT
consent of or notice to Borrower, to sell, transfer, negotiate, or grant
participation in all or any part of, or any interest in, Bank's obligations,
rights and benefits under this Agreement.
12.2 INDEMNIFICATION.
Borrower will indemnify, defend and hold harmless Bank and its officers,
employees, and agents against: (a) all obligations, demands, claims, and
liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 TIME OF ESSENCE.
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 SEVERABILITY OF PROVISION.
Each provision of this Agreement is severable from every other provision in
determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION.
All amendments to this Agreement must be in writing and signed by Borrower
and Bank. This Agreement represents the entire agreement about this subject
matter, and supersedes prior negotiations or agreements. All prior agreements,
understandings, representations, warranties, and negotiations between the
parties about the subject matter of this Agreement merge into this Agreement and
the Loan Documents.
12.6 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 SURVIVAL.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations remain outstanding. The obligations
of Borrower in Section 12.2 to indemnify Bank will survive until all statutes of
limitations for actions that may be brought against Bank have run.
12.8 CONFIDENTIALITY.
In handling any confidential information, Bank will exercise the same
degree of care that it exercises for its own proprietary information, but
disclosure of information may be made (i) to Bank's subsidiaries or affiliates
in connection with their business with Borrower, (ii) to prospective transferees
or purchasers of any interest in the loans, (iii) as required by law,
regulation, subpoena, or other order, (iv) as required in connection with Bank's
examination or audit and (v) as Bank considers appropriate exercising remedies
under this Agreement. Confidential information does not include information that
either: (a) is in the public domain or in Bank's possession when disclosed to
Bank, or becomes part of the public domain after disclosure to Bank; or (b) is
disclosed to Bank by a third party, if Bank does not know that the third party
is prohibited from disclosing the information.
PAGE 12 - LOAN AND SECURITY AGREEMENT
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES.
In any action or proceeding between Borrower and Bank arising out of the
Loan Documents, the prevailing party will be entitled to recover its reasonable
attorneys' fees and other reasonable costs and expenses incurred, in addition to
any other relief to which it may be entitled.
13 DEFINITIONS
13.1 DEFINITIONS.
In this Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"ADVANCE" or "ADVANCES" is a loan advance (or advances) under the Committed
Revolving Line.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs and
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"BORROWING BASE" is 80% of Eligible Accounts as determined by Bank from
Borrower's most recent Borrowing Base Certificate.
"BORROWER'S BOOKS" are all Borrower's books and records including ledgers,
records regarding Borrower's assets or liabilities, the Collateral, business
operations or financial condition and all computer programs or discs or any
equipment containing the information.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on which
the Bank is closed.
"CLOSING DATE" is the date of this Agreement.
"CODE" is the Oregon Uniform Commercial Code.
"COLLATERAL" is the property described on Exhibit A.
"COMMITTED EQUIPMENT LINE" is an Equipment Advance of up to $5,000,000
(Equipment Advances reduce availability under the Committed Revolving Line by
the principal amount).
"COMMITTED REVOLVING LINE" is an Advance for working capital purposes of up
to $5,000,000 (Advances reduce availability under the Committed Equipment Line
by the principal amount).
"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
PAGE 13 - LOAN AND SECURITY AGREEMENT
stated or determined amount of the primary obligation for which the Contingent
Obligation is made or, if not determinable, the maximum reasonably anticipated
liability for it determined by the Person in good faith; but the amount may not
exceed the maximum of the obligations under the guarantee or other support
arrangement.
"COPYRIGHTS" are all copyright rights, applications or registrations and
like protections in each work or authorship or derivative work, whether
published or not (whether or not it is a trade secret) now or later existing,
created, acquired or held.
"CREDIT EXTENSION" is each Advance, Equipment Advance, or any other
extension of credit by Bank for Borrower's benefit.
"DEBT SERVICE COVERAGE RATIO" means (i) quarterly earnings before interest,
depreciation and amortization, divided by (ii) 25% of the current maturities of
long-term debt, plus interest for the quarter.
"ELIGIBLE ACCOUNTS" are Accounts in the ordinary course of Borrower's
business that meet all Borrower's representations and warranties in Section 5.2;
but Bank may change eligibility standards by giving Borrower notice. Unless Bank
agrees otherwise in writing, Eligible Accounts will not include:
(a) Accounts that the account debtor has not paid within 90 days of invoice
date;
(b) Accounts for an account debtor, 50% or more of whose Accounts have not
been paid within 90 days of invoice date;
(c) Credit balances over 90 days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose total
obligations to Borrower exceed 25% of all Accounts, for the amounts that exceed
that percentage, unless the Bank approves in writing;
(e) Accounts for which the account debtor does not have its principal place
of business in the United States;
(f) Accounts for which the account debtor is a federal, state or local
government entity or any department, agency, or instrumentality;
(g) Accounts for which Borrower owes the account debtor, but only up to the
amount owed (sometimes called "contra" accounts, accounts payable, customer
deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which goods
are consigned, sales guaranteed, sale or return, sale on approval, xxxx and
hold, or other terms if account debtor's payment may be conditional;
(i) Accounts for which the account debtor is Borrower's Affiliate, officer,
employee, or agent;
(j) Accounts in which the account debtor disputes liability or makes any
claim and Bank believes there may be a basis for dispute (but only up to the
disputed or claimed amount), or if the Account Debtor is subject to an
Insolvency Proceeding, or becomes insolvent, or goes out of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"ELIGIBLE EQUIPMENT" is general purpose computer equipment, office
equipment, test and laboratory equipment, furnishings, and, subject to the
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 may be new or used equipment.
PAGE 14 - LOAN AND SECURITY AGREEMENT
"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 2.1.2.
"EQUIPMENT AVAILABILITY END DATE" is defined in Section 2.1.2.
"ERISA" is the Employment Retirement Income Security Act of 1974, and its
regulations.
"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 deferred price
of property or services, such as reimbursement and other obligations for surety
bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INSOLVENCY PROCEEDING" are proceedings by or against any Person under the
United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is defined in the attached Exhibit A.
"INVENTORY" is present and future inventory in which Borrower has any
interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of Borrower, including inventory temporarily out of its custody or
possession or in transit and including returns on any accounts or other proceeds
(including insurance proceeds) from the sale or disposition of any of the
foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock, partnership
interest or other securities) any Person, or any loan, advance or capital
contribution to any Person.
"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes or
guaranties executed by Borrower or Guarantor, and any other present or future
agreement between Borrower and/or for the benefit of Bank in connection with
this Agreement, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later, including cash management services,
letters of credit and foreign exchange contracts, if any and including interest
accruing after Insolvency Proceedings begin and debts, liabilities, or
obligations of Borrower assigned to Bank.
"OTHER EQUIPMENT" is leasehold improvements, intangible property such as
computer software and transferable software licenses, other soft costs,
including sales tax, freight, and installation expense, equipment specifically
designed or manufactured for Borrower, other intangible property, limited use
property and other similar property. Unless otherwise agreed to by Bank: not
more than 25% of the Equipment financed with the proceeds of each Equipment
Advance shall consist of Other Equipment.
"PATENTS" are patents, patent applications and like protections, including
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same.
PAGE 15 - LOAN AND SECURITY AGREEMENT
"PERMITTED INDEBTEDNESS" is:
(a) Borrower's indebtedness to Bank under this Agreement or any other Loan
Document;
(b) Indebtedness existing on the Closing Date and shown on the Schedule;
(c) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(d) Indebtedness secured by Permitted Liens.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Schedule and existing on the Closing Date; and
(b) (i) marketable direct obligations issued or unconditionally guaranteed
by the United States or its agency or any State maturing within 1 year from its
acquisition, (ii) commercial paper maturing no more than 1 year after its
creation and having the highest rating from either Standard & Poor's Corporation
or Xxxxx'x Investors Service, Inc., and (iii) Bank's certificates of deposit
issued maturing no more than 1 year after issue.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or arising
under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which
Borrower maintains adequate reserves on its Books, if they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by Borrower or
its Subsidiaries incurred for financing the acquisition of the Equipment, or
(ii) existing on equipment when acquired, if the Lien is confined to the
property and improvements and the proceeds of the equipment;
(d) Licenses or sublicenses granted in the ordinary course of Borrower's
business and any interest or title of a licensor or under any license or
sublicense, if the licenses and sublicenses permit granting Bank a security
interest;
(e) Leases or subleases granted in the ordinary course of Borrower's
business, including in connection with Borrower's leased premises or leased
property;
(f) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), but any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it is
not Bank's lowest rate.
"QUICK ASSETS" is on any date, the Borrower's consolidated, unrestricted
cash, cash equivalents, net billed accounts receivable and investments with
maturities of fewer than 12 months determined according to GAAP.
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Borrower.
"REVOLVING MATURITY DATE" is November 9, 2001.
"SCHEDULE" is any attached schedule of exceptions.
PAGE 16 - LOAN AND SECURITY AGREEMENT
"SUBSIDIARY" is for any Person, or any other business entity of which more
than 50% of the voting stock or other equity interests is owned or controlled,
directly or indirectly, by the Person or one or more Affiliates of the Person.
"TANGIBLE NET WORTH" is, on any date, the consolidated total assets of
Borrower and its Subsidiaries minus, (i) any amounts attributable to (a)
goodwill, (b) intangible items such as unamortized debt discount and expense,
Patents, trade and service marks and names, Copyrights and research and
development expenses except prepaid expenses, and (c) reserves not already
deducted from assets, and (ii) Total Liabilities.
"TOTAL LIABILITIES" is on any day, obligations that should, under GAAP, be
classified as liabilities on Borrower's consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
"TRADEMARKS" are trademark and servicemark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of Assignor connected with the trademarks.
BORROWER:
CORILLIAN CORPORATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BANK:
SILICON VALLEY BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PAGE 17 - LOAN AND SECURITY AGREEMENT
EXHIBIT A
The Collateral consists of all of Borrower's right, title and interest in
and to the following:
All goods and equipment now owned or hereafter acquired, including, without
limitation, all machinery, fixtures, vehicles (including motor vehicles and
trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower;
All documents, cash, deposit accounts, securities, securities entitlements,
securities accounts, investment property, financial assets, letters of credit,
certificates of deposit, instruments and chattel paper now owned or hereafter
acquired and Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registration and
like protections in each work of authorship and derivative work thereof, whether
published or unpublished, now owned or hereafter acquired; all trade secret
rights, including all rights to unpatented inventions, know-how, operating
manuals, license rights and agreements and confidential information, now owned
or hereafter acquired; all mask work or similar rights available for the
protection of semiconductor chips, now owned or hereafter acquired; all claims
for damages by way of any past, present and future infringement of any of the
foregoing; and
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
Borrower has agreed not to sell, transfer, assign, mortgage, pledge, lease,
grant a security interest in, or encumber any of its Intellectual Property, as
defined below, without Bank's prior written consent.
Notwithstanding the foregoing, the Collateral shall not be deemed to
include any (i) software, documentation, manuals or other works of authorship,
ideas, inventions, processes, designs, trademarks, technology, information, and
materials created, written or developed by Borrower, either before or after the
date of this Agreement; or (ii) any intellectual property rights associated with
such works, including without limitation patents, patent rights, copyrights,
trademark rights, trade secret rights, trade dress rights, and all rights to
use, execute, reproduce, display, perform, distribute copies of, modify and
prepare derivative works based on such works (collectively, the "Intellectual
Property"), except that the Collateral shall include the proceeds of all the
Intellectual Property that are accounts (i.e. accounts receivable) of Borrower,
or general intangibles consisting
PAGE 1 - EXHIBIT A
of rights to payment, if a judicial authority (including a U.S. Bankruptcy
Court) holds that a security interest in the underlying Intellectual Property is
necessary to have a security interest in such accounts and general intangibles
of Borrower that are proceeds of the Intellectual Property, then the Collateral
shall automatically, and effective as of the Closing Date, include the
Intellectual Property to the extent necessary to permit perfection of Bank's
security interest in such accounts and general intangibles of Borrower that are
proceeds of the Intellectual Property.
PAGE 2 - EXHIBIT A
EXHIBIT B
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.
TO: CENTRAL CLIENT SERVICE DIVISION DATE: __________________
FAX#: (000)000-0000 TIME: __________________
FROM: CORILLIAN CORPORATION
CLIENT NAME (BORROWER)
REQUESTED BY:
--------------------------
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE:
------------------
PHONE NUMBER: __________________________
FROM ACCOUNT # _________________________ TO ACCOUNT # ________________________
REQUESTED TRANSACTION TYPE REQUESTED DOLLAR AMOUNT
-------------------------- -----------------------
PRINCIPAL INCREASE (ADVANCE) $____________________________________________
PRINCIPAL PAYMENT (ONLY) $____________________________________________
INTEREST PAYMENT (ONLY) $____________________________________________
PRINCIPAL AND INTEREST (PAYMENT) $____________________________________________
OTHER INSTRUCTIONS: ____________________________________________________________
All Borrower's representations and warranties in the Loan and Security Agreement
are true, correct and complete in all material respects on the date of the
telephone request for and Advance confirmed by this Borrowing Certificate; but
those representations and warranties expressly referring to another date shall
be true, correct and complete in all material respects as of that date.
BANK USE ONLY
TELEPHONE REQUEST:
The following person is authorized to request the loan payment
transfer/loan advance on the advance designated account and is known to me.
------------------------------------- ----------------------------------------
Authorized Requester Phone #
------------------------------------- ----------------------------------------
Received By (Bank) Phone #
----------------------------------------
Authorized Signature (Bank)
PAGE 1 - EXHIBIT B
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: CORILLIAN CORPORATION
The undersigned authorized officer of CORILLIAN CORPORATION ("Borrower")
certifies that under the terms and conditions of the Loan and Security Agreement
between Borrower and Bank (the "Agreement"), (i) Borrower is in complete
compliance for the period ending ____________ with all required covenants except
as noted below and (ii) all representations and warranties in the Agreement are
true and correct in all material respects on this date. Attached are the
required documents supporting the certification. The Officer certifies that
these are prepared in accordance with Generally Accepted Accounting Principles
(GAAP) consistently applied from one period to the next except as explained in
an accompanying letter or footnotes. The Officer acknowledges that no borrowings
may be requested at any time or date of determination that Borrower is not in
compliance with any of the terms of the Agreement, and that compliance is
determined not just at the date this certificate is delivered.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
Quarterly 10-Q Report Quarterly within 5 days of filing & Yes No
Comp.Cert.
Annual (Audited) Financial Statement FYE within 120 days Yes No
Annual 10-K Report & Comp. Cert. Annually within 5 days of filing Yes No
Deferred Revenue Listing Monthly within 20 days of month-end Yes No
All SEC filings other than 10-Q and 10-K Within 5 days of filing Yes No
A/R & A/P Agings(1) Monthly within 20 days Yes No
A/R Audit(2) Annual Yes No
Borrowing Base Certificate(1) Monthly within 20 days Yes No
FINANCIAL COVENANTS REQUIRED ACTUAL COMPLIES
------------------- ----------- ------ --------
Maintain on a Quarterly Basis:
Tangible Net Worth: $30,000,000 Yes No
Minimum Adjusted Quick Ratio(3) 2.00:1.00 :1.00 Yes No
Minimum Debt Service Coverage Ratio(3) 2.00:1.00 :1.00 Yes No
----------
(1) Required when Borrowing Base is applicable.
(2) Required if more than $500,000 is outstanding under the Committed Revolving
Line at any one time.
(3) Once Borrower has maintained a Debt Service Coverage Ratio of 2.0:1.0 for
two consecutive quarters, the Adjusted Quick Ratio will be amended to
eliminate the principal outstanding under all Equipment Advances.
Concurrently, a Debt Service Coverage Ratio covenant of 2.0:1.0 will be
implemented.
PAGE 1 -- EXHIBIT C
PAGE 1 - EXHIBIT C
COMMENTS REGARDING EXCEPTIONS: See Attached.
Sincerely,
CORILLIAN CORPORATION
-------------------------------------
SIGNATURE
-------------------------------------
TITLE
-------------------------------------
DATE
BANK USE ONLY
Received by:
------------------------
-------------------------------------
AUTHORIZED SIGNER
Date:
-------------------------------
Verified:
---------------------------
AUTHORIZED SIGNER
Date:
-------------------------------
Compliance Status: Yes No
PAGE 2 - EXHIBIT C
EXHIBIT D
BORROWING BASE CERTIFICATE
Borrower: Corillian Corporation Lender: Silicon Valley Bank
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Commitment Amount: $5,000,000
ACCOUNTS RECEIVABLE
1. Accounts Receivable Book Value as of _____ $____________________
2. Additions (please explain on reverse) $____________________
3. TOTAL ACCOUNTS RECEIVABLE $____________________
ACCOUNTS RECEIVABLE DEDUCTIONS (without duplication)
4. Amounts over 90 days due $____________________
5. Balance of 50% over 90 day accounts $____________________
6. Credit balances $____________________
7. Concentration Limits $____________________
8. Foreign Accounts $____________________
9. Governmental Accounts $____________________
10. Contra Accounts $____________________
11. Promotion or Demo Accounts $____________________
12. Intercompany/Employee Accounts $____________________
13. Other (please explain on reverse) $____________________
14. TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS $____________________
15. Eligible Accounts (#3 minus #14) $____________________
16. LOAN VALUE OF ACCOUNTS (80% of #15) $____________________
BALANCES
17. Maximum Loan Amount $____________________
18. Total Funds Available [Lesser of #17 or #16, less
Equipment Advances outstanding] $____________________
19. Present balance owing on Line of Credit $____________________
20. RESERVE POSITION (#18 minus #19) $____________________
The undersigned represents and warrants that this is true, complete and
correct, and that the information in this Borrowing Base Certificate complies
with the representations and warranties in the Loan and Security Agreement
between the undersigned and Silicon Valley Bank.
COMMENTS:
Corillian Corporation
By:
---------------------------------
Authorized Signer
BANK USE ONLY
Rec'd By:
---------------------------
Auth. Signer
Date:
-------------------------------
Verified:
---------------------------
Auth. Signer
PAGE 1 - EXHIBIT D
Date:
-------------------------------
PAGE 2 - EXHIBIT D
SCHEDULE
Schedule for Section 5.3
1. S1 Corporation vs. Corillian Corporation: Legal proceedings are disclosed
in the Borrower's Form 10-Q, filed on August 14, 2000.
Schedule for Section 5.7
1. Investment in e-Banc LLC: The Borrower's investment in e-Banc LLC is
disclosed in the Borrower's Form 10-Q, filed on August 14, 2000.
2. Warrant to purchase 160,000 shares of Xxxxxx.xxx, a privately held entity
in the business of data aggregation services.
PAGE 1 - SCHEDULE
LOAN MODIFICATION AGREEMENT
This Loan Modification Agreement is entered into as of December 26, 2000,
by and between Corillian Corporation ("Borrower") and Silicon Valley Bank
("Bank").
1. DESCRIPTION OF EXISTING INDEBTEDNESS: Among other indebtedness which may
be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among
other documents, a Loan and Security Agreement, dated November 9, 2000, as may
be amended from time to time, (the "Loan Agreement"). The Loan Agreement
provided for, among other things, a Committed Revolving Line in the original
principal amount of Five Million Dollars ($5,000,000). Defined terms used but
not otherwise defined herein shall have the same meanings as in the Loan
Agreement.
Hereinafter, all indebtedness owing by Borrower to Bank shall be referred to as
the "Indebtedness."
2. DESCRIPTION OF COLLATERAL. Repayment of the Indebtedness is secured by
the Collateral as described in the Loan Agreement. In addition, Borrower has
agreed not to encumber any of its Intellectual Property pursuant to that certain
Negative Pledge Agreement, dated November 9, 2000.
Hereinafter, the above-described security documents and guaranties, together
with all other documents securing repayment of the Indebtedness shall be
referred to as the "Security Documents". Hereinafter, the Security Documents,
together with all other documents evidencing or securing the Indebtedness shall
be referred to as the "Existing Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
A. Modification(s) to Loan Agreement.
1. Subsection 6.2 entitled "Financial Statement, Reports,
Certificates" is hereby amended in part to provide that Borrower
will provide to Bank, as soon as available, but no later than
forty-five (45) days after the last day of each quarter, company
prepared consolidated and consolidating balance sheet and income
statement covering Borrower's consolidated and consolidating
operations during the period, in a form acceptable to Bank and
certified by a Responsible Officer.
2. Notwithstanding anything to the contrary contained in Section 7
entitled "Negative Covenants", Bank hereby acknowledges and
consents to Borrower's all stock acquisition of Xxxxxxx
Association, Inc., which will become a wholly owned subsidiary of
Borrower.
3. The following term defined in Section 13.1 entitled "Definitions"
is hereby amended as follows:
"Tangible Net Worth" is, on any date, the total assets of
Borrower minus, (i) any amounts attributable to (a) goodwill, (b)
intangible items such as amortized debt discount and expense,
Patents, trade and service marks and names, Copyrights and
research and development expenses except prepaid expenses, (c)
all investments and all loans in Subsidiaries, and (d) reserves
not already deducted from assets, and (ii) Total Liabilities.
4. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended
wherever necessary to reflect the changes described above.
5. NO DEFENSES OF BORROWER. Borrower (and each guarantor and pledgor
signing below) agrees that, as of the date hereof, it has no defenses against
the obligations to pay any amounts under the Indebtedness.
6. CONTINUING VALIDITY. Borrower (and each guarantor and pledgor signing
below) understands and agrees that in modifying the existing Indebtedness, Bank
is relying upon Borrower's representations, warranties, and agreements, as set
forth in the Existing Loan Documents. Except as expressly modified pursuant to
this Loan Modification Agreement, the terms
of the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Indebtedness pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Indebtedness. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Indebtedness. It is the intention of Bank
and Borrower to retain as liable parties all makers and endorsers of Existing
Loan Documents, unless the party is expressly released by Bank in writing.
Unless expressly released herein, no maker, endorser, or guarantor will be
released by virtue of this Loan Modification Agreement. The terms of this
paragraph apply not only to this Loan Modification Agreement, but also to all
subsequent loan modification agreements.
This Loan Modification Agreement is executed as of the date first written
above.
BORROWER: BANK
CORILLIAN CORPORATION SILICON VALLEY BANK
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
[LOGO]
SILICON VALLEY BANK
PRO FORMA INVOICE FOR LOAN CHARGES
BORROWER: CORILLIAN CORPORATION
LOAN OFFICER: XXX XXXXXXX
DATE: DECEMBER 26, 2000
DOCUMENTATION FEE 250.00
TOTAL FEE DUE $250.00
=======
PLEASE INDICATE THE METHOD OF PAYMENT:
( ) A CHECK FOR THE TOTAL AMOUNT IS ATTACHED.
( ) DEBIT DDA # ______ FOR THE TOTAL AMOUNT.
( ) LOAN PROCEEDS
-------------------------------------
BORROWER (DATE)
-------------------------------------
SILICON VALLEY BANK (DATE)
ACCOUNT OFFICER'S SIGNATURE
