{"id":41011,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/export-import-bank-loan-and-security-agreement-silicon-valley2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"export-import-bank-loan-and-security-agreement-silicon-valley2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/export-import-bank-loan-and-security-agreement-silicon-valley2.html","title":{"rendered":"Export-Import Bank Loan and Security Agreement &#8211; Silicon Valley Bank and InVision Technologies Inc."},"content":{"rendered":"<pre>\n                 AMENDED AND RESTATED EXPORT-IMPORT BANK LOAN AND \n                                SECURITY AGREEMENT\n                           INVISION TECHNOLOGIES, INC.\n\n\n\n                                TABLE OF CONTENTS\n\n\n\n                                                                                                            Page\n                                                                                                      \n1        ACCOUNTING AND OTHER TERMS..........................................................................4\n\n2        LOAN AND TERMS OF PAYMENT...........................................................................4\n         2.1      Advances...................................................................................4\n         2.2      Overadvances...............................................................................5\n         2.3      Interest Rate, Payments....................................................................5\n         2.4      Fees.......................................................................................5\n         2.5      Use of Proceeds............................................................................5\n\n3        CONDITIONS OF LOANS.................................................................................5\n         3.1      Conditions Precedent to Initial Advance....................................................6\n         3.2      Conditions Precedent to all Advances.......................................................6\n\n4        CREATION OF SECURITY INTEREST.......................................................................6\n         4.1      Grant of Security Interest.................................................................6\n\n<font size=\"2\">5        REPRESENTATIONS AND WARRANTIES......................................................................6\n         5.1      Domestic Loan Documents....................................................................6\n\n6        AFFIRMATIVE COVENANTS...............................................................................6\n         6.1      Domestic Loan Documents....................................................................6\n         6.2      EXIM Insurance.............................................................................6\n         6.3      Borrower Agreement.........................................................................7\n         6.4      Terms of Sale..............................................................................7\n         6.5      Reporting Requirement......................................................................7\n         6.6      Further Assurances.........................................................................7\n\n7        NEGATIVE COVENANTS..................................................................................7\n         7.1      Domestic Loan Documents....................................................................7\n         Violate or fail to comply with the Domestic Loan Documents..........................................7\n         7.2      Borrower Agreement...............................<\/font>..........................................7\n         7.3      Exim Agreement.............................................................................7\n\n8        EVENTS OF DEFAULT...................................................................................7\n         8.1      Payment Default............................................................................8\n         8.2      Covenant Default...........................................................................8\n         8.3      Exim Guarantee.............................................................................8\n\n9        BANK'S RIGHTS AND REMEDIES..........................................................................8\n         9.1      Rights and Remedies........................................................................8\n         9.2      Power of Attorney..........................................................................8\n         9.3      Accounts Collection........................................................................9\n         9.4      Bank Expenses..............................................................................9\n         9.5      Bank's Liability for Collateral............................................................9\n         9.6      Remedies Cumulative........................................................................9\n         9.7      Demand Waiver..............................................................................9\n         9.8      Exim Direction.............................................................................9\n         9.9      Exim Notification..........................................................................9\n\n10       NOTICES............................................................................................10\n\n\n                                      2\n\n\n\n                                                                                                            Page\n                                                                                                      \n\n11       CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER.........................................................10\n\n12       GENERAL PROVISIONS.................................................................................10\n         12.1     Successors and Assigns....................................................................10\n         12.2     Indemnification...........................................................................10\n         12.3     Time of Essence...........................................................................10\n         12.4     Severability of Provision.................................................................11\n         12.5     Amendments in Writing, Integration........................................................11\n         12.6     Counterparts..............................................................................11\n         12.7     Survival..................................................................................11\n         12.8     Confidentiality...........................................................................11\n         12.9     Effect of Amendment and Restatement.......................................................11\n\n13       DEFINITIONS........................................................................................11\n         13.1     Definitions...............................................................................11\n\n                                      3\n\n\n         THIS AMENDED AND RESTATED EXPORT-IMPORT BANK LOAN AND SECURITY\nAGREEMENT dated May 4, 1999, between SILICON VALLEY BANK ('Bank'), whose address\nis 3003 Tasman Drive, Santa Clara, California 95054 and INVISION TECHNOLOGIES,\nINC. ('Borrower'), whose address is 7151 Gateway Boulevard, Newark, California\n94560.\n\n                                    RECITALS\n\n         A.       Bank and Borrower are parties to that certain Export-Import\nBank Loan and Security Agreement dated February 20, 1997, as amended\n(collectively, the 'Original Agreement').\n\n         B.       Borrower and Bank desire in this Exim Agreement to set forth\ntheir agreement with respect to a working capital loan and to amend and restate\nin its entirety without novation the Original Exim Agreement in accordance with\nthe provisions herein.\n\n                                   AGREEMENT\n\n         The parties agree as follows:\n\n1        ACCOUNTING AND OTHER TERMS\n\n         Accounting terms not defined in this Exim Agreement will be construed\nfollowing GAAP Calculations and determinations must be made following GAAP. The\nterm 'financial statements' includes the notes and schedules. The terms\n'including' and 'includes' always mean 'including (or includes) without\nlimitation' in this or any Loan Document. This Exim Agreement shall be construed\nto impart upon Bank a duty to act reasonably at all times.\n\n2        LOAN AND TERMS OF PAYMENT\n\n2.1      ADVANCES.\n\n         Borrower will pay Bank the unpaid principal amount of all Advances and\ninterest on the unpaid principal amount of the Advances.\n\n2.1.1    REVOLVING ADVANCES.\n\n         Bank will make Advances not exceeding (i) the Exim Committed Line or\n(ii) the Borrowing Base, whichever is less minus (ii) the amount of all\noutstanding Letters of Credit (including drawn but unreimbursed Letters of\nCredit and minus (iii) the Foreign Exchange Reserve. Amounts borrowed under this\nSection may be repaid and reborrowed during the term of this Exim Agreement.\n\n         (a) To obtain an Advance, Borrower must notify Bank by facsimile or\ntelephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be\nmade. Borrower must promptly confirm the notification by delivering to Bank the\nPayment\/Advance Form attached as Exhibit B. Bank will credit Advances to\nBorrower's deposit account. Bank may make Credit Extensions under this Exim\nAgreement based on instructions from a Responsible Officer or his or her\ndesignee or without instructions if the Credit Extensions are necessary to meet\nObligations which have become due. Bank may rely on any telephone notice given\nby a person whom Bank believes is a Responsible Officer or designee. Borrower\nwill indemnify Bank for any loss suffered by Bank from that reliance.\n\n         (b) The Exim Committed Line terminates on the Exim Maturity Date, when\nall Advances and other amounts due under this Exim Agreement are immediately\npayable.\n\n2.1.2    LETTERS OF CREDIT.\n\n         Bank will issue or have issued Letters of Credit for Borrower's\naccount, to serve as bid bonds when the Borrower has no export order, provided\nthat the Borrower submits to Bank a copy of request for proposal or other form\nof invitation to bid, in form and substance acceptable to Bank. Letters of\nCredit \n\n                                    4\n\n\nshall not exceed (i) the lesser of the Exim Committed Line or the Borrowing \nBase minus (ii) the outstanding principal balance of the Advances, but the \nface amount of outstanding Letters of Credit (including drawn but \nunreimbursed Letters of Credit and any Letter of Credit Reserve) may not \nexceed $2,000,000. Each Letter of Credit will expire no later than 180 days \nafter the Revolving Maturity Date provided Borrower's Letter of Credit \nreimbursement obligation is secured by cash on terms acceptable to Bank at \nany time after the Exim Maturity Date if the term of this Agreement is not \nextended by Bank.\n\n2.1.3    FOREIGN EXCHANGE SUBLIMIT.\n\n         If there is availability under the Committed Revolving Line and the\nBorrowing Base, then Borrower may enter in foreign exchange forward contracts\nwith the Bank under which Borrower commits to purchase from or sell to Bank a\nset amount of foreign currency more than one business day after the contract\ndate (the 'FX Forward Contract'). Bank will subtract 10% of each outstanding FX\nForward Contract from the foreign exchange sublimit which is a maximum of\n$1,000,000 (the 'FX Sublimit'). The total FX Forward Contracts at any one time\nmay not exceed 10 times the amount of the FX Sublimit. Bank may terminate the FX\nForward Contracts if an Event of Default occurs.\n\n2.2      OVERADVANCES.\n\n         If Borrower's Obligations under Section 2.1.1 exceed the lesser of\neither (i) the Exim Committed Line or (ii) the Borrowing Base, Borrower must\nimmediately pay Bank the excess.\n\n2.3      INTEREST RATE, PAYMENTS.\n\n         (a) Interest Rate. Advances accrue interest on the outstanding\nprincipal balance at a per annum rate equal to the Prime Rate. After an Event of\nDefault, Obligations accrue interest at 5 percent above the rate effective\nimmediately before the Event of Default. The interest rate increases or\ndecreases when the Prime Rate changes. Interest is computed on a 360 day year\nfor the actual number of days elapsed.\n\n         (b) Payments. Interest due on the Exim Committed Line is payable on the\n20th of each month. Bank may debit any of Borrower's deposit accounts including\nAccount Number __________________________ for principal and interest payments or\nany amounts Borrower owes Bank. Bank will notify Borrower when it debits\nBorrower's accounts. These debits are not a set-off. Payments received after\n12:00 noon Pacific time are considered received at the opening of business on\nthe next Business Day. When a payment is due on a day that is not a Business\nDay, the payment is due the next Business Day and additional fees or interest\naccrue.\n\n2.4      FEES.\n\n         Borrower will pay:\n\n         (a) Bank Expenses. All Bank Expenses incurred through and after the\ndate of this Exim Agreement, (including reasonable attorneys' fees and expenses)\npayable when due.\n\n         (b) Exim Fee. A fully earned, non-refundable facility Fee of $37,500 \nwill be due on the Closing Date.\n\n         (c) Exim Bank Expenses. On the Closing Date, Exim Bank Expenses\nincurred through the date hereof.\n\n2.5      USE OF PROCEEDS.\n\n         Borrower will use the proceeds of the Advances only for the purposes\nspecified in the Borrower Agreement. Borrower will not use the proceeds of the\nAdvances for any purpose prohibited by the Borrower Agreement.\n\n3        CONDITIONS OF LOANS\n\n                                    5\n\n\n3.1      CONDITIONS PRECEDENT TO INITIAL ADVANCE.\n\n         Bank's obligation to make the initial Advance is subject to the\ncondition precedent that it receive the agreements, documents and fees it\nrequires.\n\n3.2      CONDITIONS PRECEDENT TO ALL ADVANCES.\n\n         Bank's obligations to make each Advance, including the initial Advance,\nis subject to the following:\n\n         (a) timely receipt of any export purchase order and a Borrowing Base\nCertificate relating to the request;\n\n         (b) receipt of a Payment\/Advance Form;\n\n         (c) the representations and warranties in Section 5 must be materially\ntrue on the date of the Payment\/Advance Form and on the effective date of each\nAdvance and no Event of Default may have occurred and be continuing, or result\nfrom the Advance. Each Advance is Borrower's representation and warranty on that\ndate that the representations and warranties of Section 5 remain true; and\n\n         (d) the Exim Guarantee will be in full force and effect.\n\n4        CREATION OF SECURITY INTEREST\n\n4.1      GRANT OF SECURITY INTEREST.\n\n         Borrower grants Bank a continuing security interest in all presently \nexisting and later acquired Collateral to secure all Obligations and \nperformance of each of Borrower's duties under the Loan Documents. Except for \nPermitted Liens, any security interest will be a first priority security \ninterest in the Collateral. Bank may place a 'hold' on any deposit account \npledged as Collateral.\n\n5        REPRESENTATIONS AND WARRANTIES\n\n         Borrower represents and warrants as follows:\n\n5.1      DOMESTIC LOAN DOCUMENTS.\n\n         The representations and warranties contained in the Domestic Loan\nDocuments, which are incorporated into this Agreement, are true and correct.\n\n6        AFFIRMATIVE COVENANTS\n\n         Borrower will do all of the following:\n\n6.1      DOMESTIC LOAN DOCUMENTS.\n\n         Borrower will comply with all the provisions of the Domestic Loan\nDocuments.\n\n6.2      EXIM INSURANCE.\n\n         If required by Bank, Borrower will obtain, and pay when due all\npremiums with respect to, and maintain uninterrupted foreign credit insurance.\nIn addition, Borrower will execute in favor of Bank an assignment of proceeds of\nany insurance policy obtained by Borrower and issued by Exim Bank insuring\nagainst comprehensive commercial and political risk (the 'EXIM Bank Policy').\nThe insurance proceeds from the EXIM Bank Policy assigned or paid to Bank will\nbe applied to the balance outstanding under this Exim Agreement. Borrower will\nimmediately notify Bank and Exim Bank in writing upon submission of any \n\n                                    6\n\n\nclaim under the Exim Bank Policy. Then Bank will not be obligated to make any \nfurther Credit Extensions to Borrower without prior approval from Exim Bank.\n\n6.3      BORROWER AGREEMENT.\n\n         Borrower will comply with all terms of the Borrower Agreem<font size=\"2\">ent. If any\nprovision of the Borrower Agreement conflicts with any provision contained in\nthis Exim Agreement, the more strict provision, with respect to the Borrower,\nwill control.\n\n6.4      TERMS OF SALE.\n\n         Borrower will cause all sales of products on which the Credit\nExtensions are based to be (i) supported by one or more irrevocable letters of\ncredit in an amount and of matter, naming a beneficiary and issued by a\nfinancial institution acceptable to Bank or (ii) on open account to creditworthy\nbuyers that have written pre-approval from Bank and Exim Bank.\n\n6.5      REPORTING REQUIREMENT.\n\n         (a) Borrower shall deliver all reports, certificates and other\ndocuments to Bank as provided in the Borrower Agreement. In addition, Borrower\nshall comply with the reporting requirements set forth in the Domestic Loan\nDocuments;\n\n         (b) At the time of each Advance and within 20 days after the last day\nof each month, Borrower will deliver to Bank a Borrowing Base Certificate signed\nby a Responsible Officer in the form of Exhibit C, with aged listings of\naccounts receivable, accounts payable and inventory schedules together with\npoint of sales reports and sell through reports, unless there are no borrowings\nunder the Exim Committed Line including the issued Letters of Credits; and\n\n         (c) Bank has the right to audit Borrower's Collateral at Borrower's\nexpense, but the audits will be conducted no more often than semi-annually\nunless (i) there are no borrowings under the Exim Committed Line including the\nissued Letters of Credit and (ii) an Event of Default has occurred and is\ncontinuing.\n\n6.6      FURTHER ASSURANCES.\n\n         Borrower will execute any further instruments and take further action\nas Bank requests to perfect or continue Bank's security interest in the\nCollateral or to effect the purposes of this Exim Agreement.\n\n7        NEGATIVE COVENANTS\n\n         Borrower will not do any of the following:\n\n7.1      DOMESTIC LOAN DOCUMENTS.\n\n         Violate or fail to comply with the Domestic Loan Documents.\n\n7.2      BORROWER AGREEMENT.\n\n         Violate or fail to comply with any provision of the Borrower Agreement.\n\n7.3      EXIM AGREEMENT.\n\n         Take an action, or permit any action to be taken, that causes, or could\nbe expected to cause, the Exim Guarantee to not be in full force and effect.\n\n8        EVENTS OF DEFAULT\n\n                                    7\n\n\n         Any one of the following is an Event of Default:\n\n8.1      PAYMENT DEFAULT.\n\n         If Borrower fails to pay any of the Obligations when due;\n\n8.2      COVENANT DEFAULT.\n\n         If Borrower violates any covenant in this Exim Agreement or in any of\nthe Domestic Loan Documents or the Borrower Agreement or an Event of Default\noccurs under this Exim Agreement or the Domestic Loan Documents.\n\n8.3 <\/font>     EXIM GUARANTEE.\n\n         If the Exim Guarantee ceases for any reason to be in full force and\neffect, or if the Exim Bank declares the Exim Guarantee void or revokes any\nobligations under the Exim Guarantee.\n\n9        BANK'S RIGHTS AND REMEDIES\n\n9.1      RIGHTS AND REMEDIES.\n\n         When an Event of Default occurs and continues Bank may, without notice\nor demand, do any or all of the following:\n\n         (a) Declare all Obligations immediately due and payable (but if an\nEvent of Default described in Section 8 occurs all Obligations are immediately\ndue and payable without any action by Bank);\n\n         (b) Stop advancing money or extending credit for Borrower's benefit\nunder this Exim Agreement or under any other agreement between Borrower and\nBank;\n\n         (c) Settle or adjust disputes and claims directly with account debtors\nfor amounts, on terms and in any order that Bank considers advisable;\n\n         (d) Make any payments and do any acts it considers necessary or\nreasonable to protect its security interest in the Collateral. Borrower will\nassemble the Collateral if Bank requires and make it available as Bank\ndesignates. Bank may enter premises where the Collateral is located, take and\nmaintain possession of any part of the Collateral, and pay, purchase, contest,\nor compromise any Lien which appears to be prior or superior to its security\ninterest and pay all expenses incurred. Borrower grants Bank a license to enter\nand occupy any of its premises, without charge, to exercise any of Bank's rights\nor remedies;\n\n         (e) Apply to the Obligations any (i) balances and deposits of Borrower\nit holds, or (ii) any amount held by Bank owing to or for the credit or the\naccount of Borrower;\n\n         (f) Ship, reclaim, recover, store, finish, maintain, repair, prepare\nfor sale, advertise for sale, and sell the Collateral; and\n\n         (g) Dispose of the Collateral according to the Code.\n\n9.2      POWER OF ATTORNEY.\n\n         Effective only when an Event of Default occurs and continues, Borrower\nirrevocably appoints Bank as its lawful attorney to: (i) endorse Borrower's name\non any checks or other forms of payment or security; (ii) sign Borrower's name\non any invoice or bill of lading for any Account or drafts against account\ndebtors, (iii) make, settle, and adjust all claims under Borrower's insurance\npolicies; (iv) settle and adjust disputes and claims about the Accounts directly\nwith account debtors, for amounts and on \n\n                                    8\n\n\nterms Bank determines reasonable; and (v) transfer the Collateral into the \nname of Bank or a third party as the Code permits. Bank may exercise the \npower of attorney to sign Borrower's name on any documents necessary to \nperfect or continue the perfection of any security interest regardless of \nwhether an Event of Default has occurred. Bank's appointment as Borrower's \nattorney in fact, and all of Bank's rights and powers, coupled with an \ninterest, are irrevocable until all Obligations have been fully repaid and \nperformed and Bank's obligation to provide Advances terminates.\n\n9.3      ACCOUNTS COLLECTION.\n\n         When an Event of Default occurs and continues, Bank may notify any\nPerson owing Borrower money of Bank's security interest in the funds and verify\nthe amount of the Account. Borrower must collect all payments in trust for Bank\nand, if requested by Bank, immediately deliver the payments to Bank in the form\nreceived from the account debtor, with proper endorsements for deposit.\n\n9.4      BANK EXPENSES.\n\n         If Borrower fails to pay any amount or furnish any required proof of\npayment to third persons Bank may make all or part of the payment or obtain\ninsurance policies required in Section 6.5, and take any action under the\npolicies Bank deems prudent. Any amounts paid by Bank are Bank Expenses and\nimmediately due and payable, bearing interest at the then applicable rate and\nsecured by the Collateral. No payments by Bank are deemed an agreement to make\nsimilar payments in the future or Bank's waiver of any Event of Default.\n\n9.5      BANK'S LIABILITY FOR COLLATERAL.\n\n         If Bank complies with reasonable banking practices it is not liable\nfor: (a) the safekeeping of the Collateral; (b) any loss or damage to the\nCollateral; (c) any diminution in the value of the Collateral; or (d) any act or\ndefault of any carrier, warehouseman, bailee, or other person. Borrower bears\nall risk of loss, damage or destruction of the Collateral.\n\n9.6      REMEDIES CUMULATIVE.\n\n         Bank's rights and remedies under this Exim Agreement, the Loan\nDocuments, and all other agreements are cumulative. Bank has all rights and\nremedies provided under the Code, by law, or in equity. Bank's exercise of one\nright or remedy is not an election, and Bank's waiver of any Event of Default is\nnot a continuing waiver. Bank's delay is not a waiver, election, or\nacquiescence. No waiver is effective unless signed by Bank and then is only\neffective for the specific instance and purpose for which it was given.\n\n9.7      DEMAND WAIVER.\n\n         Borrower waives demand, notice of default or dishonor, notice of\npayment and nonpayment, notice of any default, nonpayment at maturity, release,\ncompromise, settlement, extension, or renewal of accounts, documents,\ninstruments, chattel paper, and guarantees held by Bank on which Borrower is\nliable.\n\n9.8      EXIM DIRECTION.\n\n         Upon the occurrence of an Event of Default, Exim Bank shall have right\nto (i) direct Bank to exercise the remedies specified in Section 9.1 and (ii)\nrequest that Bank accelerate the maturity of any other loans to Borrower.\n\n\n9.9      EXIM NOTIFICATION.\n\n         Bank has the right to immediately notify Exim Bank in writing if it has\nknowledge of any of the following events: (1) any failure to pay any amount due\nunder this Exim Agreement; (2) the Borrowing \n\n                                    9\n\n\nBase is less than the sum of the outstanding Credit Extensions; (3) any \nfailure to pay when due any amount payable to Bank under any Loan owing by \nBorrower to Bank; (4) the filing of an action for debtor's relief by, against \nor on behalf of Borrower; (5) any threatened or pending material litigation \nagainst Borrower, or any dispute involving Borrower.\n\n         If Bank sends a notice to Exim Bank, Bank has the right to send Exim\nBank a written report on the status of events covered by the notice every 30\ndays after the date of the original notification, until Bank files a claim with\nExim Bank or the defaults have been cured (but no Credit Extensions may be\nrequired during the cure period unless Exim Bank gives its written approval). If\ndirected by Exim Bank, Bank will have the right to exercise any rights it may\nhave against the Borrower to demand the immediate repayment of all amounts\noutstanding under the Exim Loan Documents.\n\n10       NOTICES\n\n         All notices or demands by any party about this Exim Agreement or any\nother related agreement must be in writing and be personally delivered or sent\nby an overnight delivery service, by certified mail, postage prepaid, return\nreceipt requested, or by telefacsimile to the addresses first written above. A\nParty may change its notice address by giving the other Party written notice.\n\n11       CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER\n\n         California law governs the Loan Documents without regard to principles\nof conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction\nof the State and Federal courts in Santa Clara County, California.\n\nBORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE\nOF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED\nTRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS\nWAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.\nEACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.\n\n12       GENERAL PROVISIONS\n\n12.1     SUCCESSORS AND ASSIGNS.\n\n         This Exim Agreement binds and is for the benefit of the successors and\npermitted assigns of each party. Borrower may not assign this Exim Agreement or\nany rights under it without Bank's prior written consent which may be granted or\nwithheld in Bank's discretion. Bank has the right, without the consent of or\nnotice to Borrower, to sell, transfer, negotiate, or grant participation in all\nor any part of, or any interest in, Bank's obligations, rights and benefits\nunder this Exim Agreement.\n\n12.2     INDEMNIFICATION.\n\n         Borrower will indemnify, defend and hold harmless Bank and its\nofficers, employees, and agents against: (a) all obligations, demands, claims,\nand liabilities asserted by any other party in connection with the transactions\ncontemplated by the Loan Documents; and (b) all losses or Bank Expenses\nincurred, or paid by Bank from, following, or consequential to transactions\nbetween Bank and Borrower (including reasonable attorneys fees and expenses),\nexcept for losses caused by Bank's gross negligence or willful misconduct.\n\n12.3     TIME OF ESSENCE.\n\n         Time is of the essence for the performance of all obligations in this\nExim Agreement.\n\n                                    10\n\n\n12.4     SEVERABILITY OF PROVISION.\n\n         Each provision of this Exim Agreement is severable from every other\nprovision in determining the enforceability of any provision.\n\n12.5     AMENDMENTS IN WRITING, INTEGRATION.\n\n         All amendments to this Exim Agreement must be in writing. This Exim\nAgreement represents the entire agreement about this subject matter, and\nsupersedes prior negotiations or agreements. All prior agreements,\nunderstandings, representations, warranties, and negotiations between the\nparties about the subject matter of this Exim Agreement merge into this Exim\nAgreement and the Loan Documents.\n\n12.6     COUNTERPARTS.\n\n         This Exim Agreement may be executed in any number of counterparts and\nby different parties on separate counterparts, each of which, when executed and\ndelivered, are an original, and all taken together, constitute one Agreement.\n\n12.7     SURVIVAL.\n\n         All covenants, representations and warranties made in this Exim\nAgreement continue in full force while any Obligations remain outstanding. The\nobligations of Borrower in Section 12.2 to indemnify Bank will survive until all\nstatutes of limitations for actions that may be brought against Bank have run.\n\n12.8     CONFIDENTIALITY.\n\n         In handling any confidential information, Bank will exercise the same\ndegree of care that it exercises for its own proprietary information, but\ndisclosure of information may be made (i) to Bank's subsidiaries or affiliates\nin connection with their business with Borrower, (ii) to prospective transferees\nor purchasers of any interest in the Loans, (iii) as required by law,\nregulation, subpoena, or other order, (iv) as required in connection with Bank's\nexamination or audit and (v) as Bank considers appropriate exercising remedies\nunder this Exim Agreement. Confidential information does not include information\nthat either: (a) is in the public domain or in Bank's possession when disclosed\nto Bank, or becomes part of the public domain after disclosure to Bank; or (b)\nis disclosed to Bank by a third party, if Bank does not know that the third\nparty is prohibited from disclosing the information.\n\n12.9     EFFECT OF AMENDMENT AND RESTATEMENT.\n\n         This Exim Agreement is intended to and does completely amend and\nrestate, without novation, the Original Exim Agreement. All advances or loans\noutstanding under the Original Exim Agreement are and shall continue to be\noutstanding under this Exim Agreement. All security interests granted under the\nOriginal Exim Agreement are hereby confirmed and ratified and shall continue to\nsecure all Obligations under this Exim Agreement.\n\n13       DEFINITIONS\n\n13.1     DEFINITIONS.\n\n         Except as otherwise defined, terms that are capitalized in this Exim\nAgreement will have the same meaning assigned in the Domestic Loan Documents. In\nthis Exim Agreement:\n\n         'ADVANCE' or 'ADVANCES' is a loan advance (or advances) under the Exim \nCommitted Line.\n\n         'BANK EXPENSES' are all audit fees and expenses and reasonable costs or\nexpenses (including reasonable attorneys' fees and expenses) for preparing,\nnegotiating, administering, defending and enforcing the Loan Documents\n(including appeals or Insolvency Proceedings).\n\n                                    11\n\n\n         'BORROWER AGREEMENT' is the Export-Import Bank of the United States\nWorking Capital Guarantee Program Borrower Agreement between Borrower and Bank.\n\n         'BORROWING BASE' is an amount equal to the sum of (i) ninety percent\n(90%) of Exim Eligible Foreign Accounts plus (ii) seventy percent (70%) of the\nExim Eligible Foreign Inventory and work in process net of advance\npayments\/deposits minus (iii) twenty five percent (25%) of collateral\nrequirement on issuance of standby Letters of Credit to support bid and\/or\nperformance bonds.\n\n         'BUSINESS DAY' is any day that is not a Saturday, Sunday or a day on \nwhich the Bank is closed.\n\n         'CLOSING DATE' is the date of this Exim Agreement.\n\n         'CODE' is the California Uniform Commercial Code.\n\n         'COLLATERAL' is the property described on EXHIBIT A.\n\n         'DOMESTIC LOAN DOCUMENTS' means that certain Amended and restated Loan\nand Security Agreement of even date between Borrower and Bank.\n\n         'EXIM BANK' is the Export-Import Bank of the United States.\n\n         'EXIM BANK EXPENSES' are all audit fees and expenses; reasonable costs\nor expenses (including reasonable attorneys' fees and expenses) for preparing,\nnegotiating, administering, defending and enforcing the Exim Loan Documents\n(including appeals or Insolvency Proceedings) and the fees that the Bank pays to\nthe Exim Bank in consideration of the issuance of the Exim Guarantee.\n\n         'EXIM COMMITTED LINE' is $2,500,000.\n\n         'EXIM ELIGIBLE FOREIGN ACCOUNTS' are Accounts payable in United States\nDollars that arise in the ordinary course of Borrower's business from Borrower's\nsale of Eligible Foreign Inventory (i) that the account debtor does not have its\nprincipal place of business in the United States and (ii) that have been\nassigned and comply with all of Borrower's representations and warranties in;\nBUT Bank may change eligibility standards by giving Borrower notice. Unless Bank\nagrees otherwise in writing, Exim Eligible Foreign Accounts will not include:\n\n         (a) Accounts that the account debtor has not paid within 120 days of\n         invoice date;\n\n         (b) Accounts which are more than sixty (60) calendar days past the\n         original due date, unless it is insured through Exim Bank export credit\n         insurance for comprehensive commercial and political risk, or through\n         Exim Bank approved private insurers for a comparable coverage, in which\n         case ninety (90) calendar days shall apply;\n\n         (c) Credit balances over 90 days from invoice date;\n\n         (d) Accounts evidenced by a letter of credit until the date of shipment\n         of the items covered by the subject letter of credit;\n\n         (e) Accounts for which the account debtor is a federal, state or local\n         government entity or any department, agency, or instrumentality;\n\n         (f) Accounts for which Borrower owes the account debtor, but only up to\n         the amount owed (sometimes called 'contra' accounts, accounts payable,\n         customer deposits or credit accounts);\n\n         (g) Accounts for demonstration or promotional equipment, or in which\n         goods are consigned, sales guaranteed, sale or return, sale on\n         approval, bill and hold, or other terms if account debtor's payment may\n         be conditional;\n\n                                    12\n\n\n         (h) Accounts for which the account debtor is Borrower's Affiliate,\n         officer, employee, or agent;\n\n         (i) Accounts in which the account debtor disputes liability or makes\n         any claim and Bank believes there may be a basis for dispute (but only\n         up to the disputed or claimed amount), or if the Account Debtor is\n         subject to an Insolvency Proceeding, or becomes insolvent, or goes out\n         of business;\n\n         (k) Accounts generated by the sale of products purchased for military\n         purposes;\n\n         (l) Accounts generated by the sales of Inventory which constitute\n         defense articles or defense services;\n\n         (m) Accounts excluded from the Borrowing Base under the Borrower\n         Agreement.\n\n         (n) Accounts for which Bank or Exim Bank determines collection to be\n         doubtful.\n\n         'EXIM ELIGIBLE FOREIGN INVENTORY' is Borrower's Inventory purchased or\nmanufactured for resale located in the United States, other than Inventory that\nis excluded under the Borrower Agreement and this Exim Agreement. Exim Eligible\nForeign Inventory will not include the following:\n\n         (a)   Inventory not located in the United States;\n\n         (b)   Any demonstration Inventory or Inventory sold on consignment;\n\n         (c)   Inventory consisting of proprietary software;\n\n         (d)   Inventory previously exported from the United States;\n\n         (e)   Inventory which constitutes defense articles or defense services;\n\n         (f)   Inventory destined for shipment to prohibited countries in which\nExim Bank is legally prohibited from doing business.\n\n         (g)   Inventory destined for shipment to a county in which Exim \ncoverage is not available\n\n         (h)   Inventory with offsetting claims;\n\n         (i)   Inventory that is damaged, defective, obsolete, returned, \nrecalled or unfit for further processing; and\n\n         (j)   Inventory which is to be incorporated into items whose sale would\nresult in an ineligible Account Receivable.\n\n         'EXIM GUARANTEE' is that certain Master Guarantee Agreement or other\nagreement, as amended from time to time, the terms of which are incorporated\ninto this Exim Agreement.\n\n         'EXIM LOAN DOCUMENTS' is the Exim Agreement, the Domestic Loan\nDocuments, any note or notes executed by Borrower or any other agreement entered\ninto in connection with this Exim Loan Agreement, pursuant to which Exim Bank\nguarantees Borrower's obligations under this Exim Agreement.\n\n         'EXIM MATURITY DATE' is April 20, 2000.\n\n         'EXPORT ORDER' is a written export order or contract for the purchase\nby the buyer from the Borrower of any finished goods or services which are\nintended for export.\n\n         'LOAN DOCUMENTS' are, collectively, this Exim Agreement, any note, or\nnotes or guaranties executed by Borrower or Guarantor, and any other present or\nfuture agreement between Borrower and\/or for the benefit of Bank in connection\nwith this Exim Agreement, all as amended, extended or restated.\n\n                                    13\n\n\n         'MATERIAL ADVERSE CHANGE' is defined in The Domestic Loan Documents.\n\n         'OBLIGATIONS' are debts, principal, interest, Bank Expenses and other\namounts Borrower owes Bank now or later, including letters of credit and\nExchange Contracts and including interest accruing after Insolvency Proceedings\nbegin and debts, liabilities, or obligations of Borrower assigned to Bank.\n\n         'ORIGINAL EXIM AGREEMENT' has the meaning set forth in recital \nparagraph A.\n\n         'PRIME RATE' is Bank's most recently announced 'prime rate,' even if it\nis not Bank's lowest rate.\n\n         'SCHEDULE' is any attached schedule of exceptions.\n\n\nBORROWER:\n\nInvision Technologies, Inc.\n\nBy: \/s\/ Tim Black\n   ---------------------------------------------------------------\nTitle: Chief Operating Officer\n      ------------------------------------------------------------\n\n\nBANK:\n\nSILICON VALLEY BANK\n\nBy: \/s\/ Pamela S. Doyle\n   ---------------------------------------------------------------\nTitle: Senior Vice President, Corporate Services Division\n      ------------------------------------------------------------\n\n\n\n\n                                    14\n\n\n                                    EXHIBIT A\n\n\n         The Collateral consists of all of Borrower's right, title and interest\nin and to the following:\n\n         All of Borrower's export-related Inventory and all export-related \nAccounts arising therefrom, and\n\n         All proceeds, accessions, replacements, additions, together with\nBorrower's Books relating to the foregoing and any and all claims, rights and\ninterests in any of the above and all substitutions therefor.\n\n\n\n                                    EXHIBIT B\n\n                   LOAN PAYMENT\/ADVANCE TELEPHONE REQUEST FORM\n\n              DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., P.S.T.\n\n\nTO: CENTRAL CLIENT SERVICE DIVISION               DATE:\n                                                       -----------------------\nFAX#:  (408) 496-2426                             TIME:\n                                                       -----------------------\n\nFROM:  Invision Technologies, Inc.\n       -----------------------------------------------------------------------\n                             CLIENT NAME (BORROWER)\n\nREQUESTED BY:\n               ---------------------------------------------------------------\n                            AUTHORIZED SIGNER'S NAME\n\nAUTHORIZED SIGNATURE:\n                       -------------------------------------------------------\n\nPHONE NUMBER:\n               ---------------------------------------------------------------\n\nFROM ACCOUNT #                    TO ACCOUNT #\n                ----------------                ------------------------------\n\nREQUESTED TRANSACTION TYPE                  REQUESTED DOLLAR AMOUNT\n--------------------------                  -----------------------\n\nPRINCIPAL INCREASE (ADVANCE)                $\n                                             ---------------------------------\nPRINCIPAL PAYMENT (ONLY)                    $\n                                             ---------------------------------\nINTEREST PAYMENT (ONLY)                     $\n                                             ---------------------------------\nPRINCIPAL AND INTEREST (PAYMENT)            $\n                                             ---------------------------------\n\nOTHER INSTRUCTIONS:\n                     ---------------------------------------------------------\n\n------------------------------------------------------------------------------\n\nAll Borrower's representations and warranties in the Amended and Restated \nExport-Import Bank Loan and Security Agreement are true, correct and complete \nin all material respects on the date of the telephone request for and Advance \nconfirmed by this Borrowing Certificate; but those representations and \nwarranties expressly referring to another date shall be true, correct and \ncomplete in all material respects as of that date.\n\n                                  BANK USE ONLY\n\nTELEPHONE REQUEST:\n\nThe following person is authorized to request the loan payment transfer\/loan\nadvance on the advance designated account and is known to me.\n\n\n-------------------------------------              ---------------------------\n            Authorized Requester                            Phone #\n\n\n-------------------------------------              ---------------------------\n            Received By (Bank)                              Phone #\n\n\n                      -------------------------------------\n                           Authorized Signature (Bank)\n\n\n\n                                    EXHIBIT C\n\n                           BORROWING BASE CERTIFICATE\n                               COLLATERAL SCHEDULE\n                          (FOREIGN A\/R LINE OF CREDIT)\n\n\n\n---------------------------------------------------------------------------------------------------------\nBORROWER:     INVISION TECHNOLOGIES, INC.                        BANK:     SILICON VALLEY BANK\n---------------------------------------------------------------------------------------------------------\n                                                                                 \n     FOREIGN ACCOUNTS RECEIVABLE FROM EXPORT ACTIVITIES\n          1.  Foreign Accounts Receivable Book Value as of ___________                    $______________\n          2.  Additions (please explain on reverse)                                       $______________\n          3.  TOTAL FOREIGN ACCOUNTS RECEIVABLE                                           $______________\n\n     ACCOUNTS RECEIVABLE DEDUCTIONS\n          4.  Accounts over 120 days                                   $____________\n          5.  Balance of over 60 day accounts   \n              unless insured through Exim Bank, \n              in which case 90 days applies.                           $____________\n          6.  Credit Balances over 90 days                             $____________\n          7.  Accounts not payable in the U.S. Dollars or\n              payable in other than U.S. Dollars                       $____________\n          8.  Governmental and Military Accounts                       $____________\n          9.  Contra Accounts                                          $____________\n         10.  Promotion, Demo or Consignment Accounts                  $____________\n         11.  Intercompany\/Employee and affiliate Accounts             $____________\n         12.  Accounts in the form of L\/Cs, if subject items\n              have not yet been shipped by Borrower                    $____________\n         13.  Accounts arising from Inventory not originally\n              located in and shipped from the U.S.                     $____________\n         14.  Accounts arising from the sale of defense\n              articles or items                                        $____________\n         15.  Accounts of buyers located in or from countries\n              in which shipment is prohibited                          $____________\n         16.  Excess of Credit Limit                                   $____________\n         17.  Other exclusions                                         $____________\n         18.  TOTAL ACCOUNTS RECEIVABLE DEDUCTIONS                                     $______________\n         19.  Eligible Accounts (No. 3 - No. 18)                                       $______________\n         20.  Loan Value of Accounts (90%-Advance)                     $____________\n\n     INVENTORY\n         21.  Inventory Book Value as of ____________________                          $______________\n         22.  Additions (please explain on reverse)                                    $______________\n         23.  TOTAL INVENTORY                                                          $______________\n\n     INVENTORY DEDUCTIONS\n         24.  Obsolete Inventory                                       $____________\n         25.  Inventory not located in the U.S.                        $____________\n         26.  Any Demo Inventory or Inventory sold on consignment      $____________\n         27.  Inventory consisting of proprietary software.            $____________\n         28.  Inventory previously exported from the United States     $____________\n         29.  Inventory which constitutes defense articles or \n              defense services.                                        $____________\n         30.  Inventory destined for shipment to prohibited countries  $____________\n\n\n\n\n---------------------------------------------------------------------------------------------------------\nBORROWER:     INVISION TECHNOLOGIES, INC.                        BANK:     SILICON VALLEY BANK\n---------------------------------------------------------------------------------------------------------\n                                                                                 \n\n         31.  Inventory destined for shipment to a county in which\n              Exim coverage is not available                           $____________\n         32.  Inventory which is to be incorporated into items whose\n              sale would result in ineligible accounts receivable      $____________\n         33.  Inventory with offsetting claims                         $____________\n         34.  Work in process                                          $____________\n         35.  Other (please explain on reverse)                        $____________\n         36.  TOTAL INVENTORY DEDUCTIONS                               $____________\n         37.  Eligible Inventory (No. 23 - No. 36)                     $____________\n         38.  LOAN VALUE OF INVENTORY (70% OF NO. 37)                  $____________\n\nBALANCES\n         39.  Maximum Loan Amount                                                      $______________\n         40.  Total Available Lesser of (No. 20 + No. 38 minus *) or No. 39            $______________\n         41.  Present balance owing on Line of Credit                                  $______________\n         42.  Outstanding under Sublimits (L\/C &amp; FX)                                      $______________\n         43.  RESERVE POSITION (NO. 40 - (NO. 41 + 42)                                 $______________\n\n\n\n* (25%) of Collateral requirement on issuance of standby Letters of Credit to\n  support bid and\/or performance bonds.\n\nThe undersigned represents and warrants that as of the date hereof the \nforegoing is true, complete and correct, that the information reflected in \nthis Collateral Schedule complies with the representations and warranties set \nforth in the Amended and Restated Export-Import Bank Loan and Security \nAgreement, between Borrower and Bank, and the Borrower Agreement, executed by \nBorrower and acknowledged by Bank, each dated May 5, 1999, as may be amended \nfrom time to time, as if all representations and warranties were made as of \nthe date hereof, and that Borrower is, and shall remain, in full compliance \nwith its agreements, covenants, and obligations under such agreements. Such \nrepresentations and warranties include, without limitation, the following: \nBorrower is using disbursements only for the purpose of enabling Borrower to \nfinance the cost of manufacturing, purchasing or selling items intended for \nexport. Borrower is not using disbursements for the purpose of: (a) servicing \nany of Borrower's unrelated pre-existing or future indebtedness; (b) \nacquiring fixed assets or capital goods for the use of Borrower's business; \n(c) acquiring, equipping, equipping or renting commercial space outside the \nUnited States; or (d) paying salaries of non-U.S. citizens or non-U.S. \npermanent residents who are located in the offices of the United States. \nAdditionally, disbursements are not being used to finance the manufacture, \npurchase or sale of all of the following: (a) Items to be sold to a buyer \nlocated in a country in which the Export Import Bank of the United States is \nlegally prohibited from doing business; (b) that part of the cost of the \nitems which is not U.S. Content unless such part is not greater than fifty \npercent (50%) of the cost of the items and is incorporated into the items in \nthe United States; (c) defense articles or defense services or items directly \nor indirectly destined for use by military organizations designed primarily \nfor military use (regardless of the nature or actual use of the items); or \n(d) any items to be used in the construction, alteration, operation or \nmaintenance of nuclear power, enrichment, reprocessing, research or heavy \nwater production facilities.\n\nSincerely,\nINVISION TECHNOLOGIES, INC.\n\nBy:____________________________________\nName:__________________________________\nTitle: ________________________________\n\nDate:_________________\n\n\n                                                     BANK USE ONLY\n\n                                        RECEIVED BY:___________________________\n\n                                        DATE:__________________________________\n\n                                        VERIFIED BY:___________________________\n\n\n                                    2\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7912,8832],"corporate_contracts_industries":[9415,9454],"corporate_contracts_types":[9560,9567],"class_list":["post-41011","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-invision-technologies-inc","corporate_contracts_companies-silicon-valley-bancshares","corporate_contracts_industries-financial__banks","corporate_contracts_industries-manufacturing__industrial","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41011","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41011"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41011"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41011"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41011"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}