EXHIBIT 10.17
NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT
This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the "Agreement"), dated
as of December 31, 2001, is between SILICON VALLEY BANK ("Buyer") having a place
of business at 0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and APPLIX, INC.
("Seller"), a Massachusetts corporation with its chief executive office at
000-000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
1. DEFINITIONS. When used herein, the following terms have the following
meanings.
1.1 "ACCOUNT DEBTOR" has the meaning set forth in the Massachusetts
Uniform Commercial Code and shall include any person liable on any Purchased
Receivable, including without limitation, any guarantor of the Purchased
Receivable and any issuer of a letter of credit or banker's acceptance.
1.2 "ADJUSTMENTS" means all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor with respect to any Purchased Receivable.
1.3 "ADMINISTRATIVE FEE" means for any Purchase the percentage of the
Total Purchased Receivables Amount set forth in the Schedule for such Purchase.
1.4 "BUSINESS DAY" means any day other than a Saturday, Sunday, or other
day on which banks in California or Massachusetts are required or authorized by
law to close.
1.5 "DISCOUNT RATE" means for any Purchase the "Discount Rate" set forth
in the Schedule for such Purchase.
1.6 "DUE DATE" means for any Purchase the "Due Date" set forth in the
Schedule for such Purchase.
1.7 "EVENT OF DEFAULT" has the meaning set forth in SECTION 10 hereof.
1.8 "INSOLVENCY EVENT" means, with respect to any Account Debtor, (a)
the commencement of a case, action or proceeding with respect to such Account
Debtor before any court or other governmental authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution, winding-up
or relief of debtors, (b) such Account Debtor is generally not paying its debts
when due, or (c) the making or commencement of any general assignment for the
benefit of creditors, composition, marshaling of assets for creditors, or other
similar arrangement in respect of the creditors generally or any substantial
portion of the creditors of such Account Debtor.
1.9 "INVOICE AMOUNT" means for any Purchase, the "Invoice Amount" set
forth in the Schedule for such Purchase.
1.10 "LATE PAYMENT SETTLEMENT FEE" has the meaning set forth in
Section 2.2.
1.11 "LATE PAYMENT SETTLEMENT PERIOD" has the meaning set forth in
Section 2.2.
1.12 "OPEN AMOUNT" means the portion of any Purchased Receivable which
has been pre-paid to the Seller.
1.13 "PAYMENT IN FULL" means for any Purchase that Buyer has received
payments on account of the Purchased Receivables under such Purchase equal to
the Total Purchased Receivables Amount for such Purchase.
1.14 "PRIME RATE" means per annum rate of interest from time to time
announced and made effective by Buyer as its Prime Rate (which rate may or may
not be the lowest rate available from Buyer at any given time).
1.15 "PURCHASE" means the purchase by Buyer from Seller of one or more
Purchased Receivables on a
Purchase Date as listed in the Schedule applicable to such Purchase.
1.16 "PURCHASE DATE" means for any Purchase the date set forth as the
"Purchase Date" in the Schedule for such Purchase.
1.17 "PURCHASE PRICE" means for any Purchase the "Purchase Price" set
forth on the Schedule for such Purchase.
1.18 "PURCHASED RECEIVABLES" means for any Purchase all those Receivables
arising out of the invoices and other agreements identified on the Schedule for
such Purchase.
1.19 "PURCHASED RECEIVABLE AMOUNT" means for any Purchased Receivable,
the"Invoice Amount" set forth with respect to such Purchased Receivable on the
applicable Schedule minus the Open Amount.
1.20 "RECEIVABLES" means accounts, receivables, chattel paper,
instruments, contract rights, documents, general intangibles, letters of credit,
drafts, bankers acceptances, and other rights to payment, and all proceeds
thereof.
1.21 "RELATED PROPERTY" has the meaning as set forth in SECTION 9 hereof.
1.22 "REPURCHASE AMOUNT" has the meaning set forth in SECTION 4.2 hereof.
1.23 "SCHEDULE" means for each Purchase a schedule executed by the
parties in substantially the form of EXHIBIT A hereto identifying the Purchased
Receivables subject to such Purchase and setting forth financial and other
details relating to such Purchase, all as contemplated by EXHIBIT A.
1.24 "SETTLEMENT DATE" has the meaning set forth in SECTION 3.2 hereof.
1.25 "TOTAL PURCHASED RECEIVABLES AMOUNT" means for any Purchase the
total of the Purchased Receivable Amounts for all Purchased Receivables subject
to such Purchase as set forth on the applicable Schedule.
2. PURCHASE AND SALE OF RECEIVABLES.
2.1 SALE AND PURCHASE. Subject to the terms and conditions of this
Agreement, with respect to each Purchase, effective on each applicable Purchase
Date, Seller agrees to sell to Buyer and Buyer agrees to buy from Seller all
right, title, and interest (but none of the obligations with respect to) of the
Seller to the payment of all sums owing or to be owing from the Account Debtors
under each Purchased Receivable to the extent of the Purchased Receivable Amount
for such Purchased Receivable.
Each purchase and sale hereunder shall be in the sole discretion of Buyer
and Seller. In any event, Buyer will not (i) purchase any Receivables in excess
of an aggregate outstanding amount exceeding Two Million and 00/100 Dollars
($2,000,000.00), or (ii) purchase any Receivables under this Agreement after
September 28, 2002. The purchase of each Purchased Receivable may be evidenced
by an assignment in a form reasonably acceptable to Buyer.
2.2 PURCHASE PRICE AND RELATED MATTERS. With respect to each Purchase:
(A) PAYMENT OF PURCHASE PRICE. On the Purchase Date, the Purchase
Price, less the Administrative Fee and legal fees (that are due and
payable by Seller, if any), shall be paid by Buyer to Seller.
(B) LATE PAYMENT SETTLEMENT FEE. If, for any reason, Payment in Full
does not occur on or before the Due Date, then, upon the first to occur of
Payment in Full, 90 days after the Due Date or the filing of a bankruptcy
proceeding by or against the applicable Account Debtor that failed to pay
in full by the Due Date, and in addition to any other obligations of
Seller hereunder, Seller shall pay to Buyer an
amount which is equal to (i) the product of the Discount Rate and the
average daily balance of the Total Purchased Receivables Amount
outstanding during the period from the Due Date until the first to occur
of Payment in Full, 90 days after the Due Date or the filing of a
bankruptcy proceeding by or against the applicable Account Debtor that
failed to pay in full by the Due Date (the "Late Payment Settlement
Period") multiplied by (ii) a fraction the numerator of which is the
number of days in the Late Payment Settlement Period and the denominator
of which is 360 ("Late Payment Settlement Fee").
2.3 FACILITY FEE. A fully earned, non-refundable facility fee of Five
Thousand Dollars ($5,000.00) is due to the Buyer from the Seller upon execution
of this Agreement.
2.4 NATURE OF TRANSACTION. It is the intent of the parties hereto that
each purchase and sale of Receivables hereunder is and shall be a true sale of
such Receivables for all purposes and not a financing arrangement. Each such
sale shall be, subject to the terms hereof, absolute and irrevocable, providing
Buyer with the full risks and benefits of ownership of the Purchased Receivables
(such that the Purchased Receivables would not be property of the Seller's
estate in the event of the Seller's bankruptcy). The parties agree that
appropriate UCC financing statements have been or shall promptly be filed to
reflect that Seller is the seller and Buyer is the purchaser of Receivables
hereunder.
3. COLLECTIONS, CHARGES AND REMITTANCES.
3.1 APPLICATION OF PAYMENTS. All payments in respect of any Purchased
Receivable, whether received from an Account Debtor or any other source and
whether received by Seller or Buyer, shall be the property of Buyer and Seller
shall have no ownership interest therein.
3.2 COLLECTION BY SELLER. In order to facilitate the collection of the
Purchased Receivables in the ordinary course of business, Seller agrees to act
as Buyer's agent for collection. Accordingly, Buyer hereby appoints the Seller
its attorney-in-fact to ask for, demand, take, collect, xxx for and receive all
payments made in respect of the Purchased Receivables and to enforce all rights
and remedies thereunder and designates Seller as Buyer's assignee for
collection; PROVIDED that such appointment of Seller as such attorney-in-fact or
assignee for collection may be revoked by Buyer at any time. Seller, as such
attorney-in-fact, shall use due diligence and commercially reasonable lawful
efforts in accordance with its usual policies and practices to collect all
amounts owed by the Account Debtors on each Purchased Receivable when the same
become due. In the enforcement or the collection of Purchased Receivables,
Seller shall commence any legal proceedings only in its own name as an assignee
for collection or on behalf of Buyer or, with Buyer's prior written consent, in
Buyer's name. Seller shall have no obligation to commence any such legal
proceedings unless Buyer has agreed to pay the legal fees and other expenses to
be incurred in such proceedings on a basis which is acceptable to Seller. In no
event shall Seller take any action which would make Buyer a party to any
litigation or arbitration proceeding without Buyer's prior written consent.
Until Buyer has received Payment in Full as to any Purchase, Seller shall (i)
hold in trust for Buyer and turn over to Buyer forthwith upon receipt all
payments made to Seller by Account Debtors with respect to the Purchased
Receivables subject to such Purchase and (ii) turn over to Buyer forthwith on
receipt all instruments, chattel paper and other proceeds of the Purchased
Receivables; PROVIDED that unless an Event of Default has occurred and is
continuing, Seller may remit amounts received by Seller and due to Buyer on a
monthly basis no later than the last business day of each month (each a
"Settlement Date") after the Purchase Date, commencing on the last business day
of the month after the Purchase Date. On each Settlement Date, Seller shall
deliver to Buyer a report, in form and substance acceptable to Buyer, of the
account activity (including dates and amounts of payments) and changes in
account status for each Purchased Receivable.
3.3 NO OBLIGATION TO TAKE ACTION. Buyer shall have no obligation to
perform any of Seller's obligations under any Purchased Receivables or to take
any action or commence any proceedings to realize upon any Purchased Receivables
(including without limitation any defaulted Purchased Receivables), or to
enforce any of its rights or remedies with respect thereto.
4. NON-RECOURSE; REPURCHASE OBLIGATIONS.
4.1 NON-RECOURSE. Except as otherwise set forth in this Agreement,
Buyer's acquisition of Purchased Receivables from Seller hereunder shall be
without recourse against Seller.
4.2 SELLER'S AGREEMENT TO REPURCHASE. Seller agrees to pay to Buyer on
demand, the full face amount, or any unpaid portion, of any Purchased
Receivable: (A) with respect to which there has been any breach of warranty or
representation set forth in SECTION 6 hereof (except for breaches of warranty or
representations which are permitted to be, and have been, cured pursuant to
SECTION 7 hereof) or any breach of any covenant contained in this Agreement; or
(B) with respect to which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of recoupment, right of
return, warranty claim, or short payment (except for (i) such matters as are
permitted to be, and have been, cured pursuant to SECTION 7 hereof or (ii) such
matters with respect to which Seller provides evidence satisfactory to Buyer
that such assertion was not made in good faith. (collectively, the "Repurchase
Amount"). Upon such payment, the respective Purchased Receivables shall be
deemed property of and owned solely by the Seller (and shall not be deemed to be
a Purchased Receivable hereunder).
4.3 SELLER'S PAYMENT OF THE AMOUNTS DUE BUYER. All amounts due from
Seller to Buyer shall be paid by Seller to Buyer in immediately available funds
by fedwire to Buyer's address for notices.
5. POWER OF ATTORNEY. Seller does hereby irrevocably appoint Buyer and its
successors and assigns as Seller's true and lawful attorney-in-fact, and hereby
authorizes Buyer: (a) to sell, assign, transfer, pledge, compromise, or
discharge the whole or any part of the Purchased Receivables; (b) to demand,
collect, receive, xxx, and give releases to any Account Debtor for the monies
due or which may become due upon or with respect to the Purchased Receivables
and to compromise, prosecute, or defend any action, claim, case or proceeding
relating to the Purchased Receivables, including the filing of a claim or the
voting of such claims in any bankruptcy case, all in Buyer's name or Seller's
name, as Buyer may choose; (c) to prepare, file and sign Seller's name on any
notice, claim, assignment, demand, draft, or notice of or satisfaction of lien
or mechanics' lien or similar document with respect to Purchased Receivables;
(d) to notify all Account Debtors with respect to the Purchased Receivables to
pay Buyer directly; (e) to receive, open, and dispose of all mail addressed to
Seller for the purpose of collecting the Purchased Receivables; (f) to endorse
Seller's name on any checks or other forms of payment on the Purchased
Receivables; (g) to execute on behalf of Seller any and all instruments,
documents, financing statements and the like to perfect Buyer's interests in the
Purchased Receivables; and (h) to do all acts and things necessary or expedient,
in furtherance of any such purposes.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1 RECEIVABLES' WARRANTIES, REPRESENTATIONS AND COVENANTS. To induce
Buyer to purchase the Purchased Receivables and to render its services to
Seller, and with full knowledge that the truth and accuracy of the following are
being relied upon by the Buyer in determining whether to accept receivables as
Purchased Receivables, Seller represents, warrants, covenants and agrees, with
respect to each Purchased Receivable, that, as of the date of the applicable
Purchase pertaining to such Purchased Receivable:
(A) Seller is the absolute owner of each of the Purchased
Receivables and has full legal right to sell, transfer and assign such
receivables;
(B) The correct amount of each Purchased Receivable is as set forth
on the applicable Schedule and is not in dispute;
(C) The payment of each Purchased Receivable is not contingent upon
the fulfillment of any obligation or contract, and any and all obligations
required of the Seller have been fulfilled as of the applicable Purchase
Date;
(D) Such Purchased Receivable is based on an actual sale and
delivery of goods and/or services actually rendered, is due no later than
the applicable Due Date and is owing to Seller, is not past
due or in default, has not been previously sold, assigned, transferred, or
pledged, and is free of any and all liens, security interests and
encumbrances other than liens, security interests or encumbrances in favor
of Buyer or any other division or affiliate of Silicon Valley Bank;
(E) There are no defenses, offsets, or counterclaims against such
Purchased Receivable, and no agreement has been made under which the
Account Debtor may claim any deduction or discount, except as otherwise
stated on the applicable Schedule;
(F) Seller and, to Seller's knowledge, each Account Debtor set forth
on the applicable Schedule with respect to such Purchased Receivable, is
not insolvent as that term is defined in the United States Bankruptcy Code
and the Massachusetts Uniform Commercial Code, and no such Account Debtor,
to the knowledge of Seller, has filed or had filed against it a voluntary
or involuntary petition for relief under the United States Bankruptcy
Code; and
(G) No Account Debtor set forth on the applicable Schedule with
respect to such Purchased Receivable has objected to the payment for, or
the quality or the quantity of the subject matter of, the Purchased
Receivable, and, to the best of Seller's knowledge, each such Account
Debtor is liable for the amount set forth on such Schedule.
6.2 ADDITIONAL WARRANTIES, REPRESENTATIONS AND COVENANTS. In addition to
the foregoing warranties, representations and covenants, to induce Buyer to buy
the Purchased Receivables, Seller hereby represents, warrants, covenants and
agrees that:
(A) Seller will not assign, transfer, sell, or grant, or permit any
lien or security interest in any interest the Seller may have in any
Purchased Receivables to or in favor of any other party, without Buyer's
prior written consent.
(B) The Seller's name, form of organization, chief executive office,
and the place where the records concerning all Purchased Receivables are
kept is set forth at the beginning of this Agreement or, if located at any
additional location, as set forth on a schedule attached to this
Agreement, and Seller will give Buyer at least 10 days prior written
notice if such name, organization, chief executive office or records
concerning Purchased Receivables is changed or added and shall execute any
documents necessary to perfect Buyer's interest in the Purchased
Receivables.
(C) Seller shall (i) pay all of its normal gross payroll for
employees, and all federal and state taxes, as and when due, including
without limitation all payroll and withholding taxes and state sales
taxes; (ii) deliver at any time and from time to time at Buyer's request,
evidence satisfactory to Buyer that all such amounts have been paid to the
proper taxing authorities.
(D) Seller has not filed a voluntary petition for relief under the
United States Bankruptcy Code or had filed against it an involuntary
petition for relief and is not contemplating or anticipating any such
filing.
(E) If Payment in Full of any Purchased Receivable has not occurred
by the applicable Due Date, then Seller shall within 10 days of such date
provide a written report to Buyer setting forth the reasons for such delay
in payment.
(F) So long as any Purchased Receivable is outstanding, Seller shall
deliver to Buyer: (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 Seller's consolidated
operations during the period in a form acceptable to Buyer, along with an
aged listing of all accounts receivable and accounts payable (by invoice
date); (ii) as soon as available, but no later than forty-five (45) days
after the last day of each quarter, a company prepared consolidated
balance sheet and income statement covering Seller's consolidated
operations during the previous quarter in a form acceptable to Seller;
(iii) as soon as available, but no later than one hundred twenty (120)
days after the last day of Seller'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 reasonably acceptable
to Seller; (iv) within five (5) days of filing, copies of all statements,
reports and notices made available to Seller'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.
7. ADJUSTMENTS. In the event any Adjustment or dispute is asserted by any
Account Debtor, Seller shall promptly advise Buyer and Seller shall, subject to
the Buyer's approval, resolve such disputes and advise Buyer of any Adjustments
and promptly remit to Buyer the difference between the Invoice Amount on the
Purchase Date and the Invoice Amount after such Adjustment. Unless Buyer has
otherwise elected to exercise its rights under Section 4.2 hereof, Buyer shall
remain the absolute owner of any Purchased Receivable which is subject to
Adjustment, and, until the amount of such adjustment (as set forth above) is
paid by Seller to Buyer, any rejected, returned, or recovered personal property,
with the right to take possession thereof at any time, and if such possession is
not taken by Buyer, Seller is to resell it for Buyer's account at Seller's
expense with the proceeds made payable to Buyer. While Seller retains possession
of said returned goods and such goods are the property of Buyer, Seller shall
segregate said goods and xxxx them "property of Silicon Valley Bank."
8. INDEMNIFICATION.
(A) Seller hereby agrees that in the event any Account Debtor is
released from all or any part of its payment obligations with respect to any
Purchased Receivable by reason of: (1) any act or omission of Seller not
permitted by this Agreement or consented to in writing by Buyer; or (2) the
operation of any of the provisions of the documentation pertaining to such
Purchased Receivables, which result in the termination of the Account Debtor's
obligation to pay all of any part of the Purchased Receivables, then, upon the
happening of any such event, Seller shall thereafter pay to Buyer on the date
when the Account Debtor would otherwise have paid the Purchased Receivable to
Buyer an amount equal to the lesser of (a) the amount of the Purchased
Receivable not payable by the Account Debtor as a result of such event and (b)
the unpaid portion of the Purchased Receivable Amount for such Purchased
Receivable.
(B) Seller hereby agrees to pay, and to indemnify and hold harmless
Buyer from and against, any taxes which may at any time be asserted in respect
of this transaction or the subject matter thereof (including, without
limitation, any sales, occupational, excise, gross receipts, general
corporation, personal property, privilege or license taxes, but not including
taxes imposed upon the Buyer with respect to its income arising out of this
transaction) and costs, expenses and reasonable counsel fees in defending
against the same, whether arising by reason of the acts to be performed by
Seller hereunder or imposed against Buyer, Seller, the property involved or
otherwise; PROVIDED that with respect to any of the foregoing for which Seller
shall be liable, Seller shall receive reasonably prompt notice from Buyer of
this assertion of any such taxes on Buyer of which Buyer has notice.
9. ADDITIONAL RIGHTS. To secure the prompt payment and performance to Buyer
of all of the Purchased Receivables and the obligations of Seller hereunder,
Seller hereby grants to Buyer a continuing lien upon and security interest in
all of Seller's now existing or hereafter arising rights and interest in the
following, whether now owned or existing or hereafter created, acquired, or
arising, and wherever located (the "Related Property"): (A) Seller's rights to
any returned or rejected goods in respect of the Purchased Receivables, with
respect to which Buyer has all the rights of any unpaid seller, including the
rights of replevin, claim and delivery, reclamation, and stoppage in transit;
(B) All books and records pertaining to the Purchased Receivables or the
foregoing goods; and (C) All proceeds of the foregoing, whether due to voluntary
or involuntary disposition, including insurance proceeds. Notwithstanding the
foregoing, the Related Property shall not include, in any event, any license
agreements or other intellectual property of Seller. Seller is not authorized to
sell, assign, transfer or otherwise convey any interest in any Related Property
without Buyer's prior written consent. Seller agrees to sign UCC financing
statements, in a form acceptable to Buyer, and any other instruments and
documents requested by Buyer to evidence, perfect, or protect the interests of
Buyer in the Purchased Receivables and the Related Property. Seller agrees to
deliver to Buyer the originals of all instruments, chattel paper and documents
evidencing or related to Purchased Receivables and Related Property.
10. DEFAULT. The occurrence of any one or more of the following shall
constitute an Event of Default hereunder:
(A) Seller fails to pay any amount owed to Buyer as and when due;
(B) There shall be commenced by or against Seller any voluntary or
involuntary case under the United States Bankruptcy Code, or any
assignment for the benefit of creditors, or appointment of a receiver or
custodian for any of its assets;
(C) Seller shall become insolvent in that its debts are greater than
the fair value of its assets, or Seller is generally not paying its debts
as they become due or is left with unreasonably small capital;
(D) Any involuntary lien, garnishment, attachment or the like is
issued against or attaches to the Purchased Receivables or any Related
Property;
(E) Seller shall breach any covenant, agreement, warranty, or
representation set forth herein, and the same is not cured (whether
pursuant to the provisions of Section 6 hereof, if applicable, or
otherwise) to Buyer's satisfaction within 10 days after Buyer has given
Seller oral or written notice thereof; provided, that if such breach is
incapable of being cured it shall constitute an immediate default
hereunder;
(F) Seller is not in compliance with, or otherwise is in default
under, any term of any document, instrument or agreement evidencing a
debt, obligation or liability of any kind or character of Seller, now or
hereafter existing, in favor of Buyer or any division or affiliate of
Silicon Valley Bank, regardless of whether such debt, obligation or
liability is direct or indirect, primary or secondary, joint, several or
joint and several, or fixed or contingent, together with any and all
renewals and extensions of such debts, obligations and liabilities, or any
part thereof; or
(G) An event of default shall occur under any guaranty executed by
any guarantor of the obligations of Seller to Buyer under this Agreement,
or any material provision of any such guaranty shall for any reason cease
to be valid or enforceable or any such guaranty shall be repudiated or
terminated, including by operation of law.
11. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of Default, Buyer
has and may exercise all the rights and remedies under this Agreement and under
applicable law, including the rights and remedies of a secured party under the
Massachusetts Uniform Commercial Code.
12. ACCRUAL OF INTEREST. If any amount owed by Seller to Buyer hereunder is
not paid when due, such amount shall bear interest from such date until paid at
a per annum rate equal to the Prime Rate plus 4.0%.
13. FEES, COSTS AND EXPENSES. The Seller will pay to Buyer immediately upon
demand all reasonable fees, costs and expenses (including reasonable fees of
attorneys and professionals [excluding full time Bank employees] and their costs
and expenses) that Buyer incurs with any of the following: (a) preparing,
negotiating, and administering this Agreement or any other agreement executed by
Buyer and Seller in connection herewith, including any amendments, waivers or
consents in connection with any of the foregoing, (b) enforcing Buyer's rights
under, or collecting amounts owed by Seller to Buyer in connection with, this
Agreement, including, without limitation, to enforce (i) Seller's agreement to
repurchase as set forth in Section 4.2, (ii) Seller's payment of any amounts
owing by Seller pursuant to Section 7 hereof, or (iii) Seller's payment of any
amounts owing by Seller pursuant to Section 8 hereof, (c) enforcing any other
rights against Seller or any guarantor, (d) protecting or enforcing its title to
the Purchased Receivables or its security interest in the Related Property, and
(e) the representation of Buyer in connection with any bankruptcy case or
insolvency proceeding involving Seller or any guarantor, except to the extent
arising as a result of Buyer's own gross negligence or willful misconduct.
14. SEVERABILITY, WAIVER, AND CHOICE OF LAW. In the event that any provision
of this Agreement is deemed invalid by reason of law, this Agreement will be
construed as not containing such provision and the remainder of the Agreement
shall remain in full force and effect. If Buyer waives a default it may enforce
a later default. Any consent or waiver under, or amendment of, this Agreement
must be in writing. Nothing contained herein, or any action taken or not taken
by Buyer at any time, shall be construed at any time to be indicative of any
obligation or willingness on the part of Buyer to amend this Agreement or to
grant to Seller any waivers or consents. This Agreement has been transmitted by
Seller to Buyer at Buyer's office in the Commonwealth of Massachusetts and has
been executed and accepted by Buyer in the Commonwealth of Massachusetts. This
Agreement shall be governed by and interpreted in accordance with the internal
laws of the Commonwealth of Massachusetts.
15. NOTICES. All notices shall be given to Buyer and Seller at the addresses
or faxes set forth on the first page of this Agreement and shall be deemed to
have been delivered and received: (a) if mailed, three calendar days after
deposited in the United States mail, first class, postage pre-paid, (b) one
calendar day after deposit with an overnight mail or messenger service; or (c)
on the same date of confirmed transmission if sent by hand delivery, telecopy,
telefax or telex.
16. JURY TRIAL. SELLER AND BUYER EACH HEREBY (a) WAIVE THEIR RESPECTIVE RIGHTS
TO A JURY TRIAL ON ANY CLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, ANY RELATED AGREEMENTS, OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY; (b) RECOGNIZE AND AGREE THAT THE FOREGOING WAIVER CONSTITUTES
A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT; AND (c) REPRESENT AND
WARRANT THAT IT HAS REVIEWED THIS WAIVER, HAS DETERMINED FOR ITSELF THE
NECESSITY TO REVIEW THE SAME WITH ITS LEGAL COUNSEL, AND KNOWINGLY AND
VOLUNTARILY WAIVES ALL RIGHTS TO A JURY TRIAL.
17. TITLES AND SECTION HEADINGS. The titles and section headings used herein
are for convenience only and shall not be used in interpreting this Agreement.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement on the
day and year above written.
SELLER:
APPLIX, INC.
By: /s/ Xxxx Xxxxxx
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Title: Vice President, CFO
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BUYER:
SILICON VALLEY BANK
By: /s/ Xxxxx Xxxxx
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Title: Senior Vice President
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