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EXHIBIT 10.1
(LOGO)
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated
as of February 24, 2000, between Silicon Valley Bank, Specialty Finance
Division of ("Bank"), and HIE, INC., a Georgia corporation, ("Borrower"), whose
address is 0000 Xxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxx, XX 00000 and with a FAX
number of (000) 000 0000.
1. DEFINITIONS. In this Agreement:
"ACCOUNT DEBTOR" is defined in the California and Georgia Uniform
Commercial Code and shall include any person liable on any Financed Receivable,
such as, a guarantor of the Financed Receivable and any issuer of a letter of
credit or banker's acceptance.
"ADJUSTED QUICK RATIO" is a ratio of Quick Assets to Current
Liabilities minus Deferred Maintenance Revenue of at least 1.25 to 1.
"ADJUSTMENTS" are all discounts, allowances, returns, disputes,
counterclaims, offsets, defenses, rights of recoupment, rights of return,
warranty claims, or short payments, asserted by or on behalf of any Account
Debtor for any Financed Receivable.
"ADVANCE" is defined in Section 2.2.
"ADVANCE RATE" is 80%, net of Deferred Revenue and offsets related to
each specific Account Debtor, or another percentage as Bank establishes under
Section 2.2. Notwithstanding the foregoing, Bank will not net out deferred
revenue related to each specific Account Debtor if Borrower maintains as of the
last day of each quarter the Adjusted Quick Ratio Covenant. Such payment shall
be the "Advance" with respect to such receivable.
"APPLICABLE RATE" is a daily rate equal to the "Prime Rate" plus 2.00
percentage points per annum.
"CODE" is the California and Georgia Uniform Commercial Code.
"COLLATERAL" is attached as Exhibit "A".
"COLLATERAL HANDLING FEE" is defined in Section 3.5.
"COLLECTIONS" are all funds received by Bank from or on behalf of an
Account Debtor for Financed Receivables.
"COMPLIANCE CERTIFICATE" is attached as Exhibit "B".
"CURRENT LIABILITIES" are the aggregate amount of Borrower's total
Liabilities which mature within one (1) year.
"DEFERRED REVENUE" is all amounts received in advance of performance
under contract and not yet recognized as revenue.
"EVENT OF DEFAULT" is defined in Section 9.
"FACILITY" is an extension of credit by Bank to Borrower in order to
finance receivables with an aggregate Account Balance not exceeding the
Facility Amount.
"FACILITY AMOUNT" is $6,000,000.00.
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"FACILITY FEE" is defined in Section 3.4.
"FACILITY PERIOD" is the period beginning on this date and continuing
until February 15, 2001, unless the period is terminated sooner by Bank with
notice to Borrower or by Borrower under Section 3.6.
"FINANCE CHARGES" is defined in Section 3.2.
"FINANCED RECEIVABLES" are all those accounts, receivables, chattel
paper, instruments, contract rights, documents, general intangibles, letters of
credit, drafts, bankers acceptances, and rights to payment, and all proceeds,
including their proceeds (collectively "receivables"), which Bank purchases and
make an Advance. A Financed Receivable stops being a Financed Receivable (but
remains Collateral) when the Advance made for the Financed Receivable has been
finally paid.
"FINANCED RECEIVABLE BALANCE" is the total outstanding amount, at any
time, of all Financed Receivables.
"GUARANTOR" means any guarantor of the Obligations.
"INELIGIBLE RECEIVABLE" is any accounts receivable:
(A) that is unpaid (90) calendar days after the invoice date; or
(B) that is owed by an Account Debtor that has filed, or has had
filed against it, any bankruptcy case, assignment for the
benefit of creditors, receivership, or Insolvency Proceeding
or who has become insolvent (as defined in the United States
Bankruptcy Code) or who is generally not paying its debts as
they become due; or
(C) for which there has been any breach of warranty or
representation in Section 6 or any breach of any covenant in
this Agreement; or
(D) for which the Account Debtor asserts any discount, allowance,
return, dispute, counterclaim, offset, defense, right of
recoupment, right of return, warranty claim, or short
payment.
"INSOLVENCY PROCEEDING" are proceedings by or against any person under
the United States Bankruptcy 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.
"INVOICE TRANSMITTAL" shows accounts receivable which Bank may finance
and, for each receivable, includes the Account Debtor's, name, address, invoice
amount, invoice date and invoice number and is signed by Borrower's authorized
representative.
"LOCKBOX" is described in Section 6.2.
"MINIMUM AMOUNT" is the minimum intended use of the Facility, which
is: $11,000.00.
"OBLIGATIONS" are all advances, liabilities, obligations, covenants
and duties owing, arising, due or payable by Borrower to Bank now or later
under this Agreement or any other document, instrument or agreement, account
(including those acquired by assignment) primary or secondary, such as all
Advances, Finance Charges, Collateral Handling Fees, interest, fees, expenses,
professional fees and attorneys' fees or other.
"PREPAYMENT FEE" is defined in Section 3.6.
"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.
"RECONCILIATION PERIOD" is each calendar month.
2. FINANCING OF ACCOUNTS RECEIVABLE.
2.1. REQUEST FOR ADVANCES. During the Facility Period, Borrower
may offer accounts receivable to Bank, if there is not an Event of
Default. Borrower will deliver an Invoice Transmittal for each
accounts receivable it offers. Bank may rely on information on or with
the Invoice Transmittal.
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2.2. ACCEPTANCE OF ACCOUNTS RECEIVABLE. Bank is not obligated to
finance any accounts receivable. Bank may approve any Account Debtor's
credit before buying any receivable. When Bank accepts a receivable,
it will pay Borrower the Advance Rate times the face amount of the
receivable (the "Advance"). Bank may, in its discretion, change the
percentage of the Advance Rate. When Bank makes an Advance, the
receivable becomes a "Financed Receivable." All representations and
warranties in Section 6 must be true as of the date of the Invoice
Transmittal and of the Advance and no Event of Default exists would
occur as a result of the Advance. The aggregate amount of all Financed
Receivables outstanding at any time may not exceed the Facility
Amount.
3. COLLECTIONS, FINANCE CHARGES, REMITTANCES AND FEES. The Obligations
shall be subject to the following fees and Finance Charges. Fees and Finance
Charges may, in Bank's discretion, be charged as an Advance, and shall
thereafter accrue fees and Finance Charges as described below. Bank may, in its
discretion, charge fee and Finance Charges to Borrower's deposit account
maintained with Bank.
3.1. COLLECTIONS. Collections will be credited to the Financed
Receivables Balance, but if there is an Event of Default, Bank may
apply Collections to the Obligation in any order it chooses. If Bank
receives a payment for both Financed Receivable and a non Financed
Receivable, the funds will first be applied to the Financed Receivable
and, if there is not an Event of Default, the excess will be remitted
to the Borrower, subject to Section 13.
3.2. FINANCE CHARGES. In computing Finance Charges on the
Obligations, all Collections received by Bank shall be deemed applied
by Bank on account of the Obligations THREE Business Days after
receipt of the Collections. Borrower will pay a finance charge (the
"Finance Charge"), which is the greater of (i) the Applicable Rate
times the number of days in the Reconciliation Period times the
outstanding average daily Financed Receivable Balance for that
Reconciliation Period or (ii) the Minimum Amount. After an Event of
Default, Obligations accrue interest at 5 percent above the Applicable
Rate effective immediately before the Event of Default.
3.3. INTENTIONALLY OMITTED.
3.4. FACILITY FEE. A fully earned, non-refundable facility fee of
$60,000.00 is due upon execution of this Agreement.
3.5. COLLATERAL HANDLING FEE. Borrower will pay to Bank a
collateral handling fee, upon receipt of the Collections, equal to
.25% per month of the average daily Financed Receivable Balance
outstanding during the applicable Reconciliation Period. After an
Event of Default, the Collateral Handling Fee will increase to .75%
effective immediately before the Event of Default.
3.6. PREPAYMENT FEE. A fully earned, non-refundable prepayment fee
of $50,000.00 is due on voluntary or involuntary full payment of the
Obligations unless the Obligations are paid in full from an initial
advance from a loan agreement with Silicon Valley Bank.
3.7. ACCOUNTING. After each Reconciliation Period, Bank will
provide an accounting of the transactions for that Reconciliation
Period, including the amount of all Financed Receivables, all
Collections, Adjustments, Finance Charges, and the Collateral Handling
Fee. If Borrower does not object to the accounting in writing within
30 days it is considered correct. All Finance Charges and other
interest and fees calculated on the basis of a 360 day year and actual
days elapsed.
3.8. DEDUCTIONS. Bank may deduct fees, finance charges and other
amounts due from any Advances made or Collections received by Bank.
3.9. INTENTIONALLY OMITTED.
3.10. ACCOUNT COLLECTION SERVICES. All Borrowers' receivables are
to be paid to the same address/or party and Borrower and Bank must
agree on such address. If Bank collects all receivables and there is
not an Event of Default or an event that with notice or lapse of time
will be an Event of Default, within 3 days of receipt of those
collections, Bank will give Borrower, the receivables collections it
receives for receivables other than Financed Receivables and/or amount
in excess of the amount for which Bank has made an Advance to
Borrower, less any amount due to Bank, such as the Finance Charge,
Collateral Handling Fee, Collateral
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Handling Fee and expenses or otherwise. This Section does not impose
any affirmative duty on Bank to do any act other than to turn over
amounts. All receivables and collections are Collateral and if an
Event of Default occurs, Bank need not remit collections of Collateral
and may apply them to the Obligations.
4. REPAYMENT OF OBLIGATIONS.
4.1. REPAYMENT ON MATURITY. Borrower will repay each Advance on
the earliest of: (a) payment of the Financed Receivable in respect
which the Advance was made, (b) the Financed Receivable becomes an
Ineligible Receivable, (c) when any Adjustment is made to the Financed
Receivable (but only to the extent of the Adjustment if the Financed
Receivable is not otherwise an Ineligible Receivable, or (d) the last
day of the Facility Period (including any early termination). Each
payment will also include all accrued Finance Charges on the Advance
and all other amounts due hereunder.
4.2. REPAYMENT ON EVENT OF DEFAULT. When there is an Event of
Default, Borrower will, if Bank demands (or, in an Event of Default
under Section 9(B), immediately without notice or demand from Bank)
repay all of the Advances. The demand may, at Bank's option, include
the Advance for each Financed Receivable then outstanding and all
accrued Finance Charges, Collateral Handling Fees, attorneys and
professional fees, court costs and expenses, and any other
Obligations.
5. POWER OF ATTORNEY. Borrower irrevocably appoints Bank and its
successors and assigns it attorney-in-fact and authorizes Bank,
regardless of whether there has been an Event of Default, to:
(A) sell, assign, transfer, pledge, compromise, or discharge all
or any part of the Financed Receivables:
(B) demand, collect, xxx, and give releases to any Account Debtor
for monies due and compromise, prosecute, or defend any
action, claim, case or proceeding about the Financed
Receivables, including filing a claim or voting a claim in
any bankruptcy case in Bank's or Borrower's name, as Bank
chooses:
(C) prepare, file and sign Borrower's name on any notice, claim,
assignment, demand, draft, or notice of or satisfaction of
lien or mechanics' lien or similar document;
(D) notify all Account Debtors to pay Bank directly;
(E) receive, open, and dispose of mail addressed to Borrower;
(F) endorse Borrower's name on check or other instruments;
(G) execute on Borrower's behalf any instruments, documents,
financing statements to perfect Bank's interests in the
Financed Receivables and Collateral; and
(H) do all acts and things necessary or expedient.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS.
6.1. REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants for each Financed Receivable:
(A) It is the owner with legal right to sell, transfer
and assign it;
(B) The correct amount is on the Invoice Transmittal and
is not disputed;
(C) Payment is not contingent on any obligation or
contract and it has fulfilled all its obligations as
of the Invoice Transmittal date;
(D) It is based on an actual sale and delivery of goods
and/or services rendered, due to Borrower, it is not
past due or in default, has not been previously
sold, assigned, transferred, or pledged and is free
of any liens, security interests and encumbrances;
(E) There are no defenses, offsets, counterclaims or
agreements for which the Account Debtor may claim
any deduction or discount;
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(F) It reasonably believes no Account Debtor is insolvent or
subject to any Insolvency Proceedings;
(G) It has not filed or had filed against it proceedings and does
not anticipate any filing;
(H) Bank has the right to endorse and/ or require Borrower to
endorse all payments received on Financed Receivables and all
proceeds of Collateral.
(I) No representation, warranty or other statement of Borrower in
any certificate or written statement given to Bank contains
any untrue statement of a material fact or omits to state a
material fact necessary to make the statement contained in
the certificates or statement not misleading.
6.1.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants as follows:
(A) Borrower is duly existing and in good standing in its state
of formation and qualified and licensed to do business in,
and in good standing in, any state in which the conduct of
its business or its ownership of property requires that it be
qualified. The execution, delivery and performance of this
Agreement has been duly authorized, and does not conflict
with Borrower's organizational documents, nor constitute an
Event of Default under any material agreement by which
Borrower is bound. Borrower is not in default under any
agreement to which or by which it is bound.
(B) Borrower has good title to the Collateral. All inventory is
in all material respects of good and marketable quality, free
from material defects.
(C) Borrower is not an "investment company" or a company
"controlled" by an "investment company" under the Investment
Company Act. Borrower is not engaged as one of its important
activities in extending credit for margin stock (under
Regulations G, T and U of the Federal Reserve Board of
Governors). Borrower has complied with the Federal Fair Labor
Standards Act. Borrower has not violated any laws, ordinances
or rules. None of Borrower's properties or assets has been
used by Borrower, to the best of Borrower's knowledge, by
previous persons, in disposing, producing, storing, treating,
or transporting any hazardous substance other than legally.
Borrower has timely filed all required tax returns and paid,
or made adequate provision to pay, all taxes. Borrower has
obtained all 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.
6.2. AFFIRMATIVE COVENANTS. Borrower will do all of the following:
(A) Maintain its corporate existence and good standing in its
jurisdictions of incorporation and maintain its qualification
in each jurisdiction necessary to Borrower's business or
operations.
(B) Give Bank at least 10 days prior written notice of changes to
its name, organization, chief executive office or location of
records.
(C) Pay all its taxes including gross payroll, withholding and
sales taxes when due and will deliver satisfactory evidence
of payment if requested.
(D) Provide a written report within 10 days, if payment of any
Financed Receivable does not occur by its Due Date and
include the reasons for the delay as requested by Bank.
(E) Give Bank copies of all Forms 10-K, 10-Q and 8-K (or
equivalents) within 5 days of filing with the Securities and
Exchange Commission, while any Financed Receivable is
outstanding.
(F) Execute any further instruments and take further action as
Bank requests to perfect or continue Bank's security interest
in the Collateral or to effect the purposes of this
Agreement.
(G) Provide Bank with a Compliance Certificate no later than 5
days following each quarter end or as requested by Bank.
(H) Provide Bank with, as soon as available, but no later than 30
days following each Reconciliation Period, a company prepared
balance sheet and income statement, prepared under GAAP,
consistently applied, covering Borrower's operations during
the period together with an aged listing of accounts
receivable
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and accounts payable.
(I) Immediately notify, transfer and deliver to Bank all
collections Borrower receives for Financed Receivables.
(J) Direct each Account Debtor to make Payments to a lockbox
account with Bank or to wire transfer Payments to Bank.
(K) Borrower will allow Bank to audit Borrower's accounts
receivable, at Borrowers expense. The first audit must be
completed no later than November 1, 2000 and annually
thereafter.
(L) Provide Bank with a deferred revenue report and cash receipts
journal as requested by Bank.
6.3. NEGATIVE COVENANTS. Borrower will not do any of the following without
Bank's prior written consent:
(A) Assign, transfer, sell or grant, or permit any lien or
security interest in the Collateral.
(B) Convey, sell, lease, transfer or otherwise dispose of the
Collateral.
(C) Create, incur, assume, or be liable for any indebtedness,
except for leased equipment indebtedness not to exceed
$1,000,000.00 per year in new equipment leases without prior
written consent of Bank.
(D) Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of
1940 or undertake as one of its important activities
extending credit to purchase or carry margin stock, or use
the proceeds of any Advance for that purpose; fail to meet
the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in
ERISA, to occur; fail to comply with the Federal Fair Labor
Standards Act or violate any other law or regulation, or
permit any of its subsidiaries to do so.
7. ADJUSTMENTS. If any Account Debtor asserts a discount, allowance,
return, offset, defense, warranty claim, or the like (an "Adjustment") or if
Borrower breaches any of the representations, warranties or covenants set forth
in Section 6., Borrower will promptly advise Bank. Borrower will resell any
rejected, returned, returned, or recovered personal property for Bank, at
Borrower's expense, and pay proceeds to Bank. While Borrower has returned goods
that are Borrower property, Borrower will segregate and xxxx them "property of
Silicon Valley Bank." Bank owns the Financed Receivables and until receipt of
payment, has the right to take possession of any rejected, returned, or
recovered personal property.
8. SECURITY INTEREST. Borrower grants to Bank a continuing security
interest in all presently and later acquired Collateral. Any security interest
will be a first priority security interest in the Collateral.
9. EVENTS OF DEFAULT. Any one or more of the following is an Event of
Default.
(A) Borrower fails to pay any amount owed to Bank when due;
(B) Borrower files or has filed against it any Insolvency
Proceedings or any assignment for the benefit of creditors,
or appointment of a receiver or custodian for any of its
assets;
(C) Borrower becomes insolvent or is generally not paying its
debts as they become due or is left with unreasonably small
capital;
(D) Any involuntary lien, garnishment, attachment attaches to the
Financed Receivables or any Collateral;
(E) Borrower breaches any covenant, agreement, warranty, or
representation and does not cure it to Bank's satisfaction
within 10 days; but a breach that cannot be cured it is an
immediate Event of Default;
(F) Borrower is in default under any document, instrument or
agreement evidencing any debt, obligation or liability in
favor of Bank its affiliates or vendors regardless of whether
the debt, obligation or liability is direct or indirect,
primary or secondary, or fixed or contingent;
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(G) An event of default occurs under any Guaranty of the
Obligations or any material provision of any Guaranty is not
valid or enforceable or a Guaranty is repudiated or
terminated;
(H) A material default or Event of Default occurs under any
agreement between Borrower and any creditor of Borrower that
signed a subordination agreement with Bank;
(I) Any creditor that has signed a subordination agreement with
Bank breaches any terms of the subordination agreement; or
(J) (i) A material impairment in the perfection or priority of
the Bank's security interest in the Collateral; (ii) a
material adverse change in the business, operations, or
conditions (financial or otherwise) of the Borrower occurs;
or (iii) a material impairment of the prospect of repayment
of any portion of the Advances occurs.
10. REMEDIES.
10.1. REMEDIES UPON DEFAULT. When an Event of Default occurs, (1)
Bank may stop financing receivables or extending credit to Borrower;
(2) at Banks option and on demand, all or a portion of the Obligations
or, for to an Event of Default described in Section 9(B), automatically
and without demand, are due and payable in full; (3) apply to the
Obligations any (i) balances and deposits of Borrower it holds, or (ii)
any amount held by Bank owing to or for the credit or the account of
Borrower; and (4) Bank may exercise all rights and remedies under this
Agreement and the law, including those of a secured party under the
Code, power of attorney rights in Section 5 for the Collateral, and the
right to collect, dispose of, sell, lease, use, and realize upon all
Financed Receivables and Collateral in any commercial manner. Borrower
agrees that any notice of sale required to be given to Borrower is
deemed given if at least five days before the sale may be held.
10.2. DEMAND WAIVER. Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default,
nonpayment at maturity, release, compromise, settlement, extension, or
renewal of accounts, documents, instruments, chattel paper, and
guaranties held by Bank on which Borrower is liable.
10.3. DEFAULT RATE. If any amount is not paid when due, the amount
bears interest at the Applicable Rate plus five percent until the
earlier of (a) payment in good funds or (b) entry of a final judgment
when the principal amount of any money judgment will accrue interest at
the highest rate allowed by law.
11. FEES, COSTS AND EXPENSES. The Borrower will pay on demand all fees,
costs and expenses (including attorneys' and professionals fees with costs and
expenses) that Bank incurs from: (a) preparing, negotiating, administering, and
enforcing this Agreement or related agreement, including any amendments, waivers
or consents, (b) any litigation or dispute relating to the Financed Receivables,
the Collateral, this Agreement or any other agreement, (c) enforcing any rights
against Borrower or any guarantor, or any Account Debtor, (d) protecting or
enforcing its interest in the Financed Receivables or other Collateral, (e)
collecting the Financed Receivables and the Obligations, and (f) any bankruptcy
case or insolvency proceeding involving Borrower, any Financed Receivable, the
Collateral, any Account Debtor, or any Guarantor.
12. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER. California law governs
this Agreement. Borrower and Bank each submit to the exclusive jurisdiction of
the State and Federal courts in Santa Xxxxx County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS.
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
13. NOTICES. Notices or demands by either party about this Agreement must
be in writing and personally delivered or sent by an overnight delivery service,
by certified mail postage prepaid return receipt requested, or by FAX to the
addresses listed at the beginning of this Agreement. A party may change notice
address by written notice to the other party.
14. GENERAL PROVISIONS.
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14.1. SUCCESSORS AND ASSIGNS. This Agreement binds and is for the
benefit of successors and permitted assigns of each party. Borrower may
not assign this Agreement or any rights under it without Bank's prior
written consent which may be granted or withheld in Bank's discretion.
Bank may, without the consent of or notice to Borrower, sell, transfer,
or grant participation in any part of Bank's obligations, rights or
benefits under this Agreement.
14.2. INDEMNIFICATION. Borrower will indemnify, defend and hold
harmless Bank and its officers, employees, and agents against: (a)
obligations, demands, claims, and liabilities asserted by any other
party in connection with the transactions contemplated by this
Agreement; and (b) losses or expenses incurred, or paid by Bank from or
consequential to transactions between Bank and Borrower (including
reasonable attorneys fees and expenses), except for losses caused by
Bank's gross negligence or willful misconduct.
14.3. TIME OF ESSENCE. Time is of the essence for performance of
all obligations in this Agreement.
14.4. SEVERABILITY OF PROVISION. Each provision of this Agreement
is severable from every other provision in determining the
enforceability of any provision.
14.5. AMENDMENTS IN WRITING, INTEGRATION. All amendments to this
Agreement must be in writing. This Agreement is the entire agreement
about this subject matter and supersedes prior negotiations or
agreements.
14.6. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts and when
executed and delivered are one Agreement.
14.7. SURVIVAL. All covenants, representations and warranties made
in this Agreement continue in force while any Financed Receivable
amount remains outstanding. Borrower's indemnification obligations
survive until all statutes of limitations for actions that may be
brought against Bank have run.
14.8. CONFIDENTIALITY. Bank will use the same degree of care
handling Borrower's confidential information that it uses for its own
confidential information, but may disclose information; (i) to its
subsidiaries or affiliates in connection with their business with
Borrower, (ii) to prospective transferees or purchasers of any interest
in the Agreement, (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with an examination or
audit and (v) as it considers appropriate exercising the remedies under
this Agreement. Confidential information does not include information
that is either: (a) in the public domain or in Bank's possession when
disclosed, or becomes part of the public domain after disclosure to
Bank; or (b) disclosed to Bank by a third party, if Bank does not know
that the third party is prohibited from disclosing the information.
14.9. OTHER AGREEMENTS. This Agreement may not adversely affect
Banks rights under any other document or agreement. If there is a
conflict between this Agreement and any agreement between Borrower and
Bank, Bank may determine in its sole discretion which provision
applies. Borrower acknowledges that any security agreements, liens
and/or security interests securing payment of Borrower's Obligations
also secure Borrower's Obligations under this Agreement and are not
adversely affected by this Agreement. Additionally, (a) any Collateral
under other agreements or documents between Borrower and Bank secures
Borrowers Obligations under this Agreement and (b) a default by
Borrower under this Agreement is a default under agreements between
Borrower and Bank.
BORROWER: HIE, INC.
By
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Title
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BANK: SILICON VALLEY BANK
By
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Title
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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, service marks,
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 registrations
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; all trade
secret rights, including all rights to unpatented inventions, know-how,
operating manuals, license rights and agreements and confidential information,
now owned or hereafter acquired; all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter acquired; all
claims for damages by way of any past, present and future infringement of any
of the foregoing;
All Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
10
EXHIBIT "B"
(LOGO)
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
Compliance Certificate
I, as authorized officer of HIE, INC. ("Borrower") certify under the Accounts
Receivable Financing Agreement (the "Agreement") between Borrower and Silicon
Valley Bank ("Bank") as follows.
BORROWER REPRESENTS AND WARRANTS FOR EACH FINANCED RECEIVABLE:
It is the owner with legal right to sell, transfer and assign it;
The correct amount is on the Invoice Transmittal and is not disputed;
Payment is not contingent on any obligation or contract and it has
fulfilled all its obligations as of the Invoice Transmittal date;
It is based on an actual sale and delivery of goods and/or services
rendered, due to Borrower, it is not past due or in default, has not been
previously sold, assigned, transferred, or pledged and is free of any liens,
security interests and encumbrances;
There are no defenses, offsets, counterclaims or agreements for which
the Account Debtor may claim any deduction or discount;
It reasonably believes no Account Debtor is insolvent or subject to
any Insolvency Proceedings;
It has not filed or had filed against it proceedings and does not
anticipate any filing;
Bank has the right to endorse and/ or require Borrower to endorse all
payments received on Financed Receivables and all proceeds of Collateral.
No representation, warranty or other statement of Borrower in any
certificate or written statement given to Bank contains any untrue statement of
a material fact or omits to state a material fact necessary to make the
statement contained in the certificates or statement not misleading.
ADDITIONALLY, BORROWER REPRESENTS AND WARRANTS AS FOLLOWS:
Borrower is duly existing and in good standing in its state of
formation and qualified and licensed to do business in, and in good standing
in, any state in which the conduct of its business or its ownership of property
requires that it be qualified. The execution, delivery and performance of this
Agreement has been duly authorized, and do not conflict with Borrower's
formations documents, nor constitute an Event of Default under any material
agreement by which Borrower is bound. Borrower is not in default under any
agreement to which or by which it is bound.
Borrower has good title to the Collateral. All inventory is in all
material respects of good and marketable quality, free from material defects.
Borrower is not an "investment company" or a company "controlled" by
an "investment company" under the Investment Company Act. Borrower is not
engaged as one of its important activities in extending credit for margin stock
(under Regulations G, T and U of the Federal Reserve Board of Governors).
Borrower has complied with the Federal Fair Labor Standards Act. Borrower has
not violated any laws, ordinances or rules. None of Borrower's properties or
assets has been used by Borrower, to the best of Borrower's knowledge, by
previous persons, in disposing, producing, storing, treating, or transporting
any hazardous substance other than legally. Borrower has timely filed all
required tax returns and paid, or made adequate provision to pay, all taxes.
Borrower has obtained all 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.
All representations and warranties in the Agreement are true and
correct in all material respects on this date.
Sincerely,
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