Exhibit 10.46
Streamline Facility Agreement
September 26, 2001
Identix Incorporated
000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Gentlemen:
Reference is made to the Loan and Security Agreement between you
("Borrower") and us ("Silicon") dated September 26, 2001 (as amended, the "Loan
Agreement"). (This letter agreement, the Loan Agreement, and all other written
documents and agreements between us are referred to herein collectively as the
"Loan Documents". Capitalized terms used but not defined in this agreement shall
have the meanings set forth in the Loan Agreement.)
This will confirm our agreement that the following provisions shall
apply, effective on the date hereof:
1. Monthly Borrowing Base. Within 20 days after the end of each month,
Borrower shall deliver to Silicon a Borrowing Base Certificate signed by the
Chief Executive Officer, President, Chief Financial Officer or Controller of
Borrower in substantially the form of Exhibit A hereto, together with aged
listings of accounts receivable and accounts payable, and transaction reports
including sales, credit memoranda and collection journals and all other monthly
reporting requirements set forth in the Loan Agreement.
2. Daily Delivery of Proceeds of Receivables and Other Collateral Not
Required. Borrower shall not be required to deliver (i) the proceeds of
Receivables to Silicon upon receipt as provided in Section 4.4 of the Loan
Agreement, or (ii) the proceeds from the disposition of other Collateral as
provided in Section 4.5 of the Loan Agreement or (iii) the proceeds of any
insurance policies as provided in Section 5.2 of the Loan Agreement; provided
that if any Event of Default has occurred and is continuing, without limiting
its other rights and remedies, Silicon shall have the right to require that all
proceeds of all Receivables and all other Collateral (including insurance
proceeds) be delivered to Silicon upon receipt and in the form received all as
provided for in the Loan Agreement.
3. Changes to Reporting Requirements.
(a) Daily delivery to Silicon of transaction reports, schedules and
assignments of Receivables, and schedules of collections, and delivery to
Silicon of copies of credit memos in excess of $100,000 within five days after
the date issued, as called for by Section 4.3 of the Loan Agreement, will not be
required.
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(b) The first sentence of Section 4.6, which requires that Borrower
promptly notify Silicon of all disputes or claims relating to Receivables in
excess of $100,000, is replaced by the following: "Borrower shall promptly
notify Silicon of all returns and recoveries and of all disputes and claims,
where the return, recovery, dispute or claim involves more than $200,000".
4. Additional Modified Provisions. The following provisions of the Loan
Agreement are hereby modified as follows:
(a) While this letter agreement is in effect, Section 4.8,
pertaining to Silicon's right to verify Receivables directly with the respective
Account Debtors, will not be applicable.
(b) While this letter agreement is in effect, Section 5.5(i),
pertaining to the Borrower's negative covenant not to merge or consolidate with
another corporation or entity without Silicon's prior written consent, will not
require such consent from Silicon so long as the Borrower is a surviving
corporation of such transaction and the Borrower provides Silicon with prior
written notice of such transaction.
(c) While this letter agreement is in effect, Section 5.5(ii),
pertaining to the Borrower's negative covenant not to acquire any assets except
in the ordinary course of business without Silicon's prior written consent, will
not require such consent from Silicon so long as the acquired assets are free
and clear of all liens and encumbrances (other than Permitted Liens as defined
in the Loan Agreement) and the Borrower provides Silicon with prior written
notice of such transaction(s).
(d) While this letter agreement is in effect, Section 5.5(iv),
pertaining to the Borrower's negative covenant not to sell any Inventory on a
sale-or-return, guaranteed sale, consignment, or other contingent basis without
Silicon's prior written consent, will not require such consent from Silicon.
5. Notice Prior to Future Revolving Loans. Borrower shall provide
Silicon with at least 30 days' prior written notice of Borrower's desire to have
Silicon make any future Loans to Borrower. Such Loans, if any, shall be made in
accordance with the terms and conditions of the Loan Agreement, and Borrower
shall be required to deliver all transaction reports, schedules and assignments
of Receivables, and schedules of collections to Silicon on a weekly basis, at a
minimum, and more frequently at Silicon's discretion. Prior to Silicon making
such Loans, if any, Silicon shall have received the results, satisfactory to
Silicon in its sole discretion, of an audit as provided for in Section 5.4 of
the Loan Agreement.
6. Standard Terms and Conditions to Apply. Upon the request by Borrower
for a Loan after the date hereof, the occurrence of a Default or Event of
Default under the Loan Documents, or a breach of Borrower's obligations under
this Agreement, all of the terms and conditions of the Loan Agreement that have
been modified by this
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Agreement will immediately revert to the standard terms and conditions as
provided for in the Loan Agreement and will immediately go back into effect
without any further action on the part of Silicon or Borrower.
This letter agreement, the Loan Agreement, and the other Loan
Documents set forth in full all of the representations and agreements of the
parties with respect to the subject matter hereof and supersede all prior
discussions, oral representations, oral agreements and oral understandings
between the parties with respect to the subject hereof. Except as herein
expressly amended, all of the terms and provisions of the Loan Agreement, and
all other Loan Documents shall continue in full force and effect and the same
are hereby ratified and confirmed.
If the foregoing correctly sets forth our agreement, please sign the
enclosed copy of this Agreement and return it to us.
Sincerely yours,
Silicon Valley Bank
By_____________________________
Title_______________________
Accepted and agreed:
Borrower:
Identix Incorporated
By_______________________________
President or Vice President
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