Non-Recourse Receivables Purchase Agreement - Silicon Valley Financial Services and Microvision Inc.
Silicon Valley Financial Services
A Division of Silicon Valley Bank
3003 Tasman Drive
Santa Clara, CA 95054
(408) 654-1000 - Fax (408) 980-6410
This NON-RECOURSE RECEIVABLES PURCHASE AGREEMENT (the "Agreement"), dated
as of September 25, 1998, is between Silicon Valley Financial Services, a
division of Silicon Valley Bank, ("Buyer") and MICROVISION INC., a Washington
corporation, ("Seller"), with its chief executive office at:
Street Address: 2203 Airport Way South, Suite 100
City: Seattle
County: King
State: Washington
Zip code: 98134
Phone: (206 ) 515-0037
1. Definitions. In this Agreement:
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1.1 "Payment" is when Buyer has received payments equal to the Total
Purchased Receivables.
1.2 "Purchased Receivables" is all accounts, receivables, chattel
paper, instruments, contract rights, documents, general intangibles, letters of
credit, drafts, bankers acceptances other rights to payment and all proceeds
arising from the invoices and other agreements on the Schedule. "Purchased
Receivables" also includes returned or rejected goods connected with the
Purchased Receivables, books and records about the Purchased Receivables or
returned or rejected goods; and proceeds from voluntary or involuntary
dispositions, including insurance proceeds.
1.3 "Related Property" is all returned or rejected goods connected
with the Purchased Receivables or books and records about the Purchased
Receivables or returned or rejected goods; or proceeds from voluntary or
involuntary dispositions, including insurance proceeds.
1.4 "Schedule" is the attached schedule showing the: Purchase Date,
Due Date, Total Purchased Receivables, Discount Rate, Purchase Price,
Administrative Fee and Interest Reserve amount.
2. Purchase and Sale of Receivables.
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2.1 Sale and Purchase. On the Purchase Date, Seller sells and Buyer
buys Seller's right, title, and interest (but none of Sellers obligations) to
payment from any person liable on a Purchased Receivable, ("Account Debtors").
Each purchase and sale is at Buyer's and Seller's discretion. Buyer will
not (i) pay Seller an aggregate outstanding amount exceeding Two Million Five
Hundred Thousand and No/100*****($2,500,000.00) or (ii) buy any Purchased
Receivable after September 24, 1999 (the "Maturity Date"). Each purchase and
sale will be on an assignment form acceptable to Buyer.
2.2 Payment of Purchase Price and Late Payment.
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(a) Payment of Purchase Price. For each Purchased Receivable,
Buyer will pay Seller, on the Purchase Date, the Purchase Price, less the
Administrative Fee and legal fees (if any).
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(b) Late Payment. If Payment is made after the Due Date, as
listed on the Schedule, then on the earlier of Payment or 90 [60] days after the
scheduled payment date, Seller will also pay Buyer the product of the Discount
Rate and the average daily balance of the unpaid Purchased Receivable multiplied
by the number of days between the scheduled payment date or the earlier of the
date of actual payment or 90 [60] days after the scheduled payment date, divided
by 360; provided, however, that with respect to Purchased Receivables as to
which payment is to be made directly to Buyer, Seller shall not be liable for
making any such payment to Buyer until five (5) business days after receipt by
Seller from Buyer of the information reasonably required to calculate the amount
thereof.
(c) Late Payment Reserve. Buyer will maintain a reserve as listed
on the Schedule against any late payments on any Purchased Receivables, if any
late payment arises out of circumstances that are a breach of Seller's
representations. Buyer will retain an amount equal to the product of the
Discount Rate and the average daily balance of the unpaid Purchased Receivables
multiplied by the number of days between the scheduled payment date or the
earlier of the date of actual payment or 90 [60] days after the scheduled
payment date, divided by 360 days. If the late payment arises under any other
circumstances, Buyer will return the reserve to Seller.
2.3 Seller may not sell or convey any interest in Related Property
without Buyer's prior written consent. Seller will sign UCC financing statements
and any other instruments or documents to evidence, perfect or protect Buyer's
interests in the Purchased Receivables and Related Property. Seller will deliver
to Buyer all original instruments, chattel paper and documents about Purchased
Receivables and Related Property.
3. Collections, Payments and Remittances.
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3.1 Application of Payments. All payments for any Purchased
Receivable, received by Seller or Buyer, are Buyer's property.
3.2 Collection by Buyer. Buyer is appointed Seller's attorney-in-fact
and may:
(a) demand, sue for and receive all payments for the Purchased
Receivables; and
(b) enforce payment of each Purchased Receivable in Seller's
name; and
(c) endorse Seller's name on checks or other instruments; and
(d) notify Account Debtors of the purchase and sale and require
all payments be made directly to Buyer[, provided that Buyer shall use its best
efforts contemporaneously to provide Seller a copy of any such notification];
and
(e) compromise, prosecute or defend any action or claim involving
a Purchased Receivable including filing or voting a claim in a bankruptcy case;
and
(f) require Seller, at its expense, to notify the Account Debtors
to pay Buyer directly; and
(g) require Seller reasonably to assist collecting and enforcing
claims and execute any documents in connection therewith that Buyer reasonably
requests; and
(h) do anything reasonably necessary or expedient in connection
with a Purchased Receivable.
4. Non-Recourse; Repurchase Obligations.
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4.1 Non-Recourse and Seller's Agreement to Repurchase. Buyer acquires
Purchased Receivables without recourse, except Seller will, at Buyer's option,
repurchase from Buyer any Purchased Receivable
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for a purchase price equal to the unpaid portion of any Purchased Receivable:
(a) For which there has been any breach of warranty,
representation or covenant in this Agreement; or
(b) For which the Account Debtor asserts any discount, allowance,
return, dispute, defense, right of recoupment, right of return, warranty claim,
or short payment.
4.2 Payment to Buyer. Seller will pay Buyer in immediately available
funds.
5. Representations, Warranties and Covenants.
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5.1 Purchased Receivables - Warranties, Representations and Covenants.
Seller represents, warrants and covenants for each Purchased Receivable:
(a) It is the owner with legal right to sell, transfer and assign
it, subject only to compliance with the Federal Assignment of Claims Act;
(b) The correct amount is on the Schedule and is not disputed;
(c) No payment is contingent on any obligation or contract, and
it has fulfilled all its obligations as of the Purchase Date;
(d) It is based on actual sale and delivery of goods and/or
services rendered, due no later than its Due Date and owing to Seller, 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
in which the Account Debtor may claim any deduction or discount;
(f) It reasonably believes no Account Debtor is insolvent as
defined in the United States Bankruptcy Code ("US Code") or the California
Uniform Commercial Code ("UCC") and no Account Debtor has filed or had filed
against it a voluntary or involuntary petition for relief under the US Code.;
and
(g) No Account Debtor has objected to payment for or the quality
or quantity of the subject of the Purchased Receivable.
5.2 Additional Warranties, Representations and Covenants. Seller
represents, warrants and covenants:
(a) Its name, form of organization, chief executive office, and
the place where the records about all Purchased Receivables are kept is shown at
the beginning of this Agreement and it will give Buyer at least 10 days prior
written notice of changes to its name, organization, chief executive office or
location of records.
(b) It has not filed a voluntary petition or had filed against it
an involuntary petition under the US Code and does not anticipate any filing.
(c) If Payment of any Purchased Receivable does not occur by its
Due Date then, upon Buyer's request, Seller will provide a written report,
within 10 days, of the reasons for the delay.
(d) While any Purchased Receivable is outstanding, Seller will
give Buyer copies of all Forms 10-K, 10-Q and 8-K (or equivalents) within 5 days
of its filing with the Securities and Exchange Commission.
6. Adjustments. If any Account Debtor asserts to Seller a discount,
allowance, return, offset, defense, warranty claim, or the like (an
"Adjustment") Seller will promptly advise Buyer and, with Buyer's approval,
resolve the
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dispute. Seller will resell any rejected, returned, or recovered personal
property for Buyer, at Seller's expense, with the proceeds payable to Buyer.
While Seller has returned goods that are Buyer's property, Seller will segregate
and mark them "property of Silicon Valley Financial Services." Buyer owns the
Purchased Receivables and until Payment has the right to take possession of any
rejected, returned, or recovered personal property.
7. Indemnification.
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(a) If any Account Debtor is released from any payment obligation
for any Purchased Receivable because of: (i) Seller's act or omission; or (ii)
any of the documentation about the Purchased Receivables which results in
termination of any part of the Account Debtor's obligation for the Purchased
Receivables, then Seller will pay Buyer the lesser of the amount of the
Purchased Receivable not payable or the unpaid portion of the Purchased
Receivable.
(b) Seller indemnifies and holds Buyer harmless from any taxes
from this transaction (except Buyer's income taxes) and costs, expenses and
reasonable attorney fees if Buyer promptly notifies it of any taxes of which
Buyer has notice.
8. Repurchase Events. Any of the following is an Event of Repurchase:
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(a) Seller fails to pay Buyer any amount when due under Section
2.2(b), 4.1, 7, 9 or 10 and such amount is not paid within five (5) business
days of written demand therefor by Buyer (including, and not in addition to, any
notice given under the applicable Section);
[(b) An involuntary lien, garnishment, attachment or the like is
issued against or attaches to the Purchased Receivables or Related Property;]
and
(c) Seller breaches a material covenant, agreement, warranty, or
representation in this Agreement and the breach is not cured to Buyer's
reasonable satisfaction within 10 days after Buyer gives Seller oral or written
notice thereof [, provided, however, that any such oral notice shall promptly be
followed by a written notice]. A breach that cannot be cured is an immediate
default.
9. Repurchase Option. When an Event of Repurchase occurs Buyer shall have a
right to require Seller [, on ten (10) days' written notice,] to repurchase all
of the affected Purchased Receivables for a purchase price equal to the
amount(s) specified in Section 4.1. [Upon the occurrence of an Event of
Repurchase of the type specified in (i) Section 8(a), or (ii) Section 8(c)
affecting all or substantially all of the Purchased Receivables,] Buyer shall
also have all rights and remedies under this Agreement and the law, including
those of a secured party under the UCC, and the right to collect, dispose of,
sell, lease or use all Purchased Receivables and Related Property.
10. Fees, Costs and Expenses. Immediately on demand Seller will pay all
reasonable fees, costs and expenses (including attorney and professional fees)
that Buyer incurs from (a) preparing, negotiating, administering and enforcing
this Agreement or any other agreement, including amendments, waivers or
consents, (b) litigation or disputes relating to the Purchased Receivables [(but
only to the extent that such fees, costs and expenses arise out of or relate to
a breach of Seller's representations and warranties in Section 5 or Seller's
acts or omissions)], the Related Property, this Agreement or any other
agreement, (c) enforcing rights against Seller, (d) protecting or enforcing its
title to the Purchased Receivables or its security interest in the Related
Property, (e) collecting any amounts due from Seller or for a Purchased
Receivable under a breach of Seller's representation, warranty or covenant and
(f) any bankruptcy case or insolvency proceeding involving Seller[; provided,
however, that in the case of fees, costs and expenses arising in or relating to
a litigation or dispute between Buyer and Seller, Seller will only be liable for
payment to the extent Buyer is the substantially prevailing party therein].
Reimbursement for fees, costs, and expenses through the initial Purchase Date
will be limited to Three Thousand Five Hundred and No/100****($3,500.00).
11. Choice of Law, Venue and Jury Trial Waiver. California law governs this
Agreement. Seller and Buyer each submit to the exclusive jurisdiction of the
State and Federal courts in King County, Washington.
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SELLER AND BUYER EACH WAIVE ITS RIGHT TO A JURY TRIAL FROM ANY CAUSE OF ACTION
RELATED TO AGREEMENT, INCLUDING CONTRACT, TORT, BREACH OF DUTY OR OTHER CLAIM.
THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. 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 below:
Seller: MICROVISION INC.
2203 Airport Way South, Suite 100
Seattle, WA 98134
Attn: Chief Financial Officer
FAX: (206 )623-5961
Buyer: Silicon Valley Financial Services, A Division of
Silicon Valley Bank
3003 Tasman Drive/NC 481
Santa Clara, CA 95054
Attn: Credit Manager
FAX: (408) 980-6410
A party may change notice address by written notice to the other party.
13. General Provisions.
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13.1 Successors and Assigns. This Agreement binds and is for the
benefit of successors and permitted assigns of each party. Seller may not assign
this Agreement or any rights under it without Buyer's prior written consent
which may be granted or withheld in Buyer's discretion. Buyer may, without the
consent of or notice to Seller, sell, transfer, or grant participation in any
part of Buyer's obligations, rights or benefits under this Agreement.
13.2 Indemnification. Seller will indemnify, defend and hold harmless
Buyer 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 Borrower from or consequential to transactions between
Buyer and Seller (including reasonable attorneys fees and expenses), except in
either such case for losses caused by Buyer's gross negligence or willful
misconduct.
13.3 Time of Essence. Time is of the essence for performance of all
obligations in this Agreement.
13.4 Severability of Provision. Each provision of this Agreement is
severable from every other provision in determining the enforceability of any
provision.
13.5 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.
13.6 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.
13.7 Survival. All covenants, representations and warranties made in
this Agreement continue in full force while any Purchased Receivable amount
remains outstanding. Seller's indemnification obligations survive until all
statutes of limitations for actions that may be brought against Buyer have run.
13.8 Confidential Information. Buyer will use the same degree of care
in handling Seller's
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confidential information that it uses for its own proprietary information, but
may disclose information; (i) to its subsidiaries or affiliates in connection
with their business with Seller, (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 Buyer's possession when disclosed, or becomes
part of the public domain after disclosure to Buyer; or (b) disclosed to Buyer
by a third party, if Buyer does not know that the third party is prohibited from
disclosing the information.
14. Bracketed Terms. All terms of this Agreement and the Schedule that are
set forth in bold face and brackets (e.g., "[, on ten (10) days' written
notice,]") are under review by Buyer and, except for Section 8(b), shall not be
deemed to be a part of this Agreement. Buyer covenants to amend and restate this
Agreement and the Schedule to include all or as many of such terms (and to
delete Section 8(b)) as it determines, upon the conclusion of its review process
and in its sole good faith discretion, are acceptable. Seller acknowledges that
such covenant of Buyer shall not be subject to specific performance and that
Buyer has no obligation to accept any of such terms (or to delete Section 8(b)).
SELLER: MICROVISION INC.,
a Washington corporation
By ______________________________
Title _____________________________
BUYER: SILICON VALLEY FINANCIAL SERVICES
A division of Silicon Valley Bank
By ______________________________
Title _____________________________
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