EXHIBIT 10.1
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SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
ACCOUNTS RECEIVABLE FINANCING AGREEMENT
This ACCOUNTS RECEIVABLE FINANCING AGREEMENT (the "Agreement"), dated
as of April 7, 2000 is between Silicon Valley Bank, Specialty Finance Division
of ("Bank"), and GIGA INFORMATION GROUP, INC., a Delaware corporation,
("Borrower"), whose address is 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 and with a
FAX number of (000) 000-0000.
1. DEFINITIONS. In this Agreement:
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"ACCOUNT DEBTOR" is defined in the California and Massachusetts 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". A ratio of Quick Assets to Current Liabilities
minus Deferred Maintenance Revenue of at least 1.50 to 1.00.
"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.
"ADMINISTRATIVE FEE" is defined in Section 3.3.
"ADVANCE" is defined in Section 2.2.
"ADVANCE RATE" is 80% or another percentage as Bank establishes under
Section 2.2. Provided however, if the Borrower is unable to maintain the
Adjusted Quick Ratio as of the last day of the month, then effective the first
calendar day of the month following the missed Adjusted Quick Ratio the Advance
Rate will be 80% net of Deferred Maintenance Revenue and offsets related to each
specific Account Debtor.
"APPLICABLE RATE" is a rate per annum equal to the "Prime Rate" plus
1.50 percentage points.
"CODE" is the California and Massachusetts 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 MAINTENANCE REVENUE" is all amounts received in advance of
performance under maintenance 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 $5,000,000.00
"FACILITY FEE" is defined in Section 3.4.
"FACILITY PERIOD" is the period beginning on this date and continuing
until April 6, 2000, unless the period is terminated sooner by Bank with notice
to Borrower or by Borrower under Section 3.5.
"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:
that is unpaid (90) calendar days after the invoice date; or 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 for which there has been any
breach of warranty or representation in Section 6 or any breach of any
covenant in this Agreement; or 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.
"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, Administrative Fees, interest, fees, expenses, professional
fees and attorneys' fees or other.
"PRIME RATE" is Bank's most recently an-nounced "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 DAY" is the last calendar day of each month.
"RECONCILIATION PERIOD" is each calendar month.
"SUBORDINATED DEBT" is debt incurred by Borrower subordinated to
Borrower's debt to Bank (and identified as subordinated by Borrower and Bank).
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"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.
2. FINANCING OF ACCOUNTS RECEIVABLE.
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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.
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 3.10.
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 Applicable Rate times
the number of days in the Reconciliation Period times the outstanding average
daily Financed Receivable Balance for that Reconciliation Period. 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 $25,000.00 is
due upon execution of this Agreement.
3.5. COLLATERAL HANDLING FEE. On each Reconciliation Day, Borrower will pay to
Bank a collateral handling fee, equal to .375% 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
.875% effective immediately before the Event of Default.
3.6. INTENTIONALLY OMITTED.
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, the Collateral Handling Fee and the Administrative 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
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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, Administrative Fee,
Collateral 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.
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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, Administrative 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.
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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;
(F) It reasonably believes no Account Debtor is insolvent or subject to any
Insolvency Proceedings;
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(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.
(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 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.
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(K) Borrower will allow Bank to audit Borrower's accounts receivable, at
Borrowers expense, no later than 90 days of the execution of this Agreement and
annually thereafter.
(L) Borrower shall provide Bank on each Reconciliation Period with a deferred
revenue listing upon request by Bank.
(M) Borrower's total revenue's to increase on a quarterly basis.
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.
(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.
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(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;
(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
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(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.
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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.
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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: GIGA INFORMATION GROUP, INC.
By /s/ Xxxxxx X. Xxxxxx
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Title Senior Vice President
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BANK: SILICON VALLEY BANK
By /s/ Xxxxx Xxxxx
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Title Senior Vice President
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EXHIBIT A
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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
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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.
EXHIBIT B
SILICON VALLEY BANK
SPECIALTY FINANCE DIVISION
Compliance Certificate
I, as authorized officer of GIGA INFORMATION GROUP, 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:
9
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,
SIGNATURE
TITLE
DATE
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