**Exhibit 10.13**

 

**LOAN SALE AGREEMENT**

 

This Loan Sale Agreement (the “Agreement”) is made as of January 20,2006, between WELLS FARGO BUSINESS CREDIT, a division of Wells Fargo Bank, NA (“Seller”),and OPTA CORPORATION, a Delaware corporation, formerly known as LOTUS PACIFIC, INC.(“Buyer”).

 

RECITALS:

 

A.                                   Pursuantto a Credit and Security Agreement dated as of July 21, 2003, (asthereafter amended, supplemented or modified, the “Credit Agreement”)and a Revolving Note dated July 21, 2003 (as thereafter amended,supplemented or modified, the “Note”), OPTA SYSTEMS, LLC, a Delawarelimited liability company (the “Borrower”) is indebted to Seller for asecured revolving loan (the “Loan”) in the original principal amount ofTwenty Million Dollars ($20,000,000.00). The Credit Agreement was amended bythe First Amended Forbearance Agreement that was executed by Borrower andLender on July 22, 2005, by the Letter Agreement that was executed byBorrower and Lender on July 26, 2005, the Second Amended ForbearanceAgreement that was executed by Borrower and Lender on August 25, 2006, theThird Amended Forbearance Agreement that was executed by Borrower and Lender asof October 13, 2005, and by the Letter Agreement that was executed byBorrower and Lender on January 12, 2006 (collectively, the “ForbearanceAgreement”).

 

B.                                     TheLoan is secured by a security interest in substantially all of Borrower’spersonal property (other than intellectual property). The agreements,documents, and instruments securing the Loan (including the Credit Agreement)are referred to individually and collectively as the “Security Documents”.The Loan is guaranteed by Buyer, (in its capacity as guarantor, the “Guarantor”)pursuant to a Guaranty by Corporation, dated July 16, 2003 (the “Guaranty”).The Note, the Security Documents, the Guaranty and all other agreements,documents, and instruments evidencing, securing, or otherwise relating to theLoan, are sometimes herein referred to individually as a “Loan Document”and collectively as the “Loan Documents.”  Capitalized terms not otherwise definedherein shall have the same meanings ascribed to them in the Loan Documents.

 

C.                                     Buyer desires topurchase and Seller desires to sell the Loan.

 

NOW, THEREFORE, for good and valuable consideration, Seller and Buyeragree as follows:

 

1.                                       Purchaseand Sale. Subject to the terms and conditions of this Agreement, Buyeragrees to purchase the Loan from Seller, and Seller agrees to sell the Loan toBuyer, without recourse, representation, or warranty of any kind, express orimplied, except as stated in Paragraph 7 hereof.

 

2.                                       PurchasePrice. Buyer shall pay the Purchase Price to Seller for the Loan. ThePurchase Price (the “Purchase Price”) shall be equal to all amounts dueand owing by Borrower to Lender pursuant to the Loan Documents, includingForbearance Fees of $155,000.00 due to Lender pursuant to the ForbearanceAgreement and $8,700.00 in legal and audit fees and expenses incurred by Sellerin connection with the Loan and the legal fees incurred in the

 

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preparation and negotiation of this Agreementand the incidental documents hereto, less the amounts due and owing toParticipant pursuant to the Participation Agreement, dated July    ,2005, by and between Seller and Buyer, as thereafter amended, supplemented ormodified (the “Participation Agreement”). The amount of the PurchasePrice and the calculation thereof are set forth on Exhibit Ahereto.

 

3.                                       Closing.The consummation of the sale and purchase pursuant to this Agreement (the “Closing”)is contemplated to occur on January 20, 2006, or on such other date as theparties shall mutually agree (the “Closing Date”). At the Closing, thefollowing payments and actions shall be made and taken or occur simultaneously,and shall be concurrent conditions to Closing:

 

(a)                                  Lendershall deliver to Wells Fargo Bank, N.A. (“Bank”), pursuant to the DepositAccount Control Agreement, dated as of July 26, 2005 (“Control Agreement”),among Seller, Buyer and Bank, a written notice to debit the Account (as definedin the Control Agreement) in the amount of the Purchase Price and to deliversuch amount to or upon the order of Seller. The notice shall further notify theBank, in accordance with Section 7 of the Control Agreement, that uponpayment of the Purchase Price to Seller, the Control Agreement and securityinterest of Seller in the Account is terminated. The Account and any fundsthereafter remaining shall be under the exclusive dominion and control ofBuyer.

 

(b)                                 TheParticipation Agreement shall be terminated.

 

(c)                                  Thecontents of the Lockbox, Remittances and Account Funds (each as defined in theLockbox and Collection Account Agreement, dated as of July 21, 2003 amongBorrower, Seller and Bank, shall be directed to Buyer, in accordance with theAmended and Restated Lockbox and Collection Account Agreement of even dateherewith, and Section 15 below.

 

(d)                                 Buyershall be the successor to Seller with respect to the right of Lender under theSubordination Agreements (including the Subordination Agreement dated as of July 26,2005 executed in TCL Multimedia Technology Holdings Limited) and Lender herebyacknowledges that it shall have no further rights or benefits thereunder.

 

If the Closing has not occurred by close ofbusiness on the Closing Date, then, unless otherwise agreed by Buyer and Sellerin writing, either party may terminate this Agreement and each party shallhave the rights and remedies against the other under applicable law.

 

4.                                       Purchase andSale, Servicing.

 

(a)                                  Effectiveupon the Closing, and subject to and conditioned upon the terms, covenants,limitations, and conditions contained herein, Seller does hereby sell, assign,transfer and convey to Buyer, its successors and assigns, without recourse,representation or warranty of any kind, express or implied except as set forthin Paragraph 7 hereof, all of the right, title, and interest of Seller in,to and under the Loan, the Loan Documents, and the Collateral and all

 

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security for the Loan, and does hereby grant and delegate to Buyer, itssuccessors and assigns, any and all duties and obligations of Seller under theLoan Documents from and after Closing.

 

(b)                                 Effectiveupon Closing, Buyer assumes all of the obligations and liabilities of Sellerunder or in connection with the Loan or the Loan Documents, of every kind ornature whatsoever.

 

(c)                                  Withrespect to all periods after the Closing, Buyer shall assume completeresponsibility for all servicing and administration of the Loan previouslyconducted by Seller or any other person, including, but not limited to, thecollection of all payments thereunder and Seller shall have no furtherservicing administrative or other responsibilities with respect to the Loanafter the Closing (provided that if Seller receives any payments withrespect to the Loan after the Closing, Seller will forward those payments toBuyer).

 

(d)                                 Promptlyafter the date of Closing, Buyer shall notify the obligor(s) of Borrower, tothe extent necessary, of the sale of the Loan to Buyer and direct that allpayments on and communications regarding the Loan be sent to Buyer.

 

5.                                       Seller’sClosing Documents. At the Closing, as identified in Section 3(a),Seller shall deliver to Buyer the following documents (collectively “Seller’sClosing Documents”):

 

(a)                                  Theoriginal Note and copies of all other Loan Documents, as more particularlydescribed in Exhibit B attached hereto.

 

(b)                                 TheAllonge and Endorsement(s) (in the form attached hereto as Exhibit C)to the Note, duly executed by Seller, which Allonge and Endorsement(s) shall beattached to the original Note.

 

(c)                                  AnAssignment of Loan Documents in the form attached hereto as Exhibit D.

 

(d)                                 TheUCC financing statement amendment(s) in the form(s) attached hereto as Exhibit E,assigning to Buyer all rights of Seller as Secured Party for each Uniform CommercialCode Financing Statement related to the Loan. Buyer is authorized to file theassignment(s) following the Closing.

 

(e)                                  Awritten Notice of Assignment of the Loan duly executed by Seller instructing Borrowerto remit all payments to Buyer or its agents.

 

(f)                                    TheConsent and Agreement of Borrower and Guarantor in the form attachedhereto as Exhibit F.

 

6.                                       Buyer’sClosing Documents. At the Closing, Buyer shall deliver to Seller a fullyexecuted copy of this Agreement and any incidental documents to which Borroweror Guarantor is a party.

 

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7.                                       Representationsand Warranties of Seller. BUYER ACKNOWLEDGES AND AGREES THAT THE SALEDESCRIBED HEREIN IS MADE ON AN AS IS BASIS WITHOUT RECOURSE, REPRESENTATION, ORWARRANTY OF ANY KIND BY SELLER, WHETHER EXPRESS OR IMPLIED (EXCEPT ASSPECIFICALLY SET FORTH BELOW), INCLUDING, WITHOUT LIMITATION, ANYREPRESENTATION OR WARRANTY REGARDING THE LOAN, THE COLLECTABILITY OF THE LOAN,THE EXISTENCE OF ANY DEFAULTS WITH RESPECT TO THE LOAN, THE VALIDITY ORENFORCEABILITY OF THE LOAN DOCUMENTS OR ANY SECURITY THEREFOR, OR ANY OTHERMATTERS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER HAS NOT RELIED ON ANYINFORMATION FROM SELLER IN PURCHASING THE LOAN, AND BUYER HAS MADE ITS OWNCREDIT DECISION WITH RESPECT THERETO. Notwithstanding the foregoing, however,Seller hereby represents and warrants to Buyer as follows:

 

(a)                                  Selleris a division of Wells Fargo Bank, NA, a national banking association validlyexisting under the laws of the United States of America.

 

(b)                                 Sellerhas, and at all relevant times has had, the full power and authority toexecute, deliver and perform this Agreement and to enter into andconsummate the transactions contemplated by this Agreement. Seller has dulyauthorized the execution, delivery and performance of this Agreement, has dulyexecuted and delivered this Agreement and this Agreement constitutes a legal,valid and binding obligation of Seller, enforceable against Seller inaccordance with its terms.

 

(c)                                  Exceptfor the participation interest of Buyer (pursuant to the ParticipationAgreement), Seller is the owner and holder of the Loan and the other rights andinterests purported to be transferred pursuant to this Agreement free and clearof all liens, encumbrances or other rights in favor of any third party, hasfull right and authority, subject to no interest of participation of, oragreement with any other party, to sell and assign the Loan and such otherrights and interests pursuant to this Agreement, and Seller has not pledged,assigned or otherwise previously transferred the Loan or any of such otherrights and interests.

 

(d)                                 Theoutstanding principal balance of the Loan as of January 19, 2006 is$2,189,148.13. To the best of Seller’s knowledge, information, and belief,Borrower has no existing defenses, set-offs or offsets against enforcement ofthe Loan and the Loan Documents by Seller or any amounts payable thereunder.

 

(e)                                  Sellerhas not modified or amended the Loan except as disclosed in the Recitals tothis Agreement or in Exhibit B attached hereto.

 

(h)                                 TheLoan Documents listed on Exhibit B attached hereto, are the onlydocuments, instruments and agreements governing the terms of the Loan.

 

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(i)                                     Tothe best of Seller’s knowledge, information, and belief, no event has occurredand condition exists that constitutes, or that with the giving of notice of thelapse of time or both, would constitute a default by Seller under the LoanDocuments.

 

8.                                       Representationsand Warranties of Buyer. Buyer hereby represents and warrants to Seller:

 

(a)                                  Buyeris a corporation duly organized and validly existing under the laws of theState of Delaware.

 

(b)                                 Buyerhas, and at all relevant times has had, the full power and authority toexecute, deliver and perform and to enter into and consummate alltransactions contemplated by this Agreement. Buyer has duly authorized theexecution, delivery and performance of this Agreement, has duly executed anddelivered this Agreement, and this Agreement constitutes a legal, valid andbinding obligation of Buyer enforceable against Buyer in accordance with itsterms.

 

(c)                                  Buyerhas made such examination, review and investigation of the Loan Documents andthe Loan, and of any and all facts and circumstances necessary to evaluate theLoan Documents and the Loan it has deemed necessary or appropriate. Except forthe representations and warranties specifically and expressly made by Seller inSection 7 above: (a) Buyer has been and will continue to be solelyresponsible for Buyer’s own independent investigations as to all aspects of thetransactions contemplated hereby including, but not limited to: (i) withrespect to Borrower and Guarantor, the authorization, execution, legality,validity, effectiveness, genuineness, enforceability, collectability orsufficiency of the Loan and the Loan Documents; (ii) the adequacy,condition or existence of any collateral, or the attachment, perfection orpriority of any security interest or lien held by Seller, in connection withthe Loan Documents and the Loan; and (iii) the status, affairs, financialcondition, operations, prospects, business, property, assets andcreditworthiness of Borrower and Guarantor, of any of the obligations orliabilities of Borrower, and any actions taken or to be taken under or inconnection with the Loan and the Loan Documents; and (b)  Buyer has notrelied upon any expressed or implied, written or oral, representation, warrantyor other statement by or on behalf of Seller concerning any of the foregoing orotherwise with respect to the Loan or the Loan Documents, except for suchrepresentations and warranties of Seller as are specifically and expresslyprovided in this Agreement.

 

(d)                                 Buyeris acquiring the Loan and Loan Documents without any view either to participatein (other than as described in this Agreement), or to sell the Loan and LoanDocuments in connection with, any public distribution thereof, and Buyer has nointention of making any distribution of the Loan and Loan Documents in a mannerwhich would violate applicable securities laws; provided, however,that nothing in this Agreement shall restrict or limit in any way Buyer’s

 

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ability and right to dispose of all or part of the Loan and LoanDocuments in accordance with such laws if at some future time Buyer deems itadvisable to do so; and, provided, further, that Buyer and any party acquiringall or any portion of the Loan and Loan Documents or any proceeds thereof fromBuyer, other than Seller or any successor, must agree in writing to be bound by(or continue to be bound by) this Section 8(d).

 

(e)                                  Buyer’sperformance of its duties and obligations under this Agreement will notconflict with, result in a breach of or default under, or be adversely affectedby, any agreements, instruments, decrees, judgments, injunctions, orders,writs, laws, rules or regulations, or any determination or award of anyarbitrator, to which Buyer is a party or by which it may be bound.

 

9.                                       Reimbursementof Seller’s Costs and Expenses. Buyer will reimburse Seller for all of itscosts and expenses (including attorneys’ fees) incurred, whether before ofafter Closing, in relation to this Agreement.

 

10.                                 Absenceof Broker Involvement. Each party hereto represents and warrants to theother that it has not employed any broker or finder in connection with thetransactions contemplated by this Agreement. Each party shall indemnify, defendand hold the other harmless for, from and against any and all liability andexpense, including attorneys’ fees arising from any claim by any broker, agentor finder for commissions, finder’s fees or similar charges, because of any actof such party.

 

11.                                 Confidentiality.Buyer and its representatives shall hold in strictest confidence all data andinformation obtained with respect to Seller or its business, whether obtainedbefore or after the execution and delivery of this Agreement, and shall not usesuch data or information or disclose the same to others.

 

12.                                 Buyer’sWaivers. Buyer, all successors or assignees thereof and all subsequenttransferees of the Loan, hereby waive any right or cause of action they may nowor in the future have against the Seller, and its affiliates, employees,agents, officers, representatives, successors and assigns, as a result of thepurchase of the Loan; provided, however, that this waiver shallnot extend to any liability of Seller arising from Seller’s failure to perform itsobligations in accordance with the terms of this Agreement.

 

13.                                 Miscellaneous.

 

(a)                                  Anynotice or other communication required or permitted hereunder will be inwriting and personally delivered; sent by telecopier, telefax, or facsimiletransmission; or sent by prepaid overnight courier service; and addressed tothe relevant party at its address set forth below, or at such other address assuch party may, by written notice, designate as its address for purposes ofnotice hereunder:

 

If to Seller,at:

 

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Wells Fargo Business Credit, Inc.

Attn: Darcy Della Flora

100 West Washington Street, 15thFloor

MACS4101-158

Phoenix, Arizona 85003

Telephone: (602) 378-2469

Fax: (602) 378-6215

 

with a copy to:

 

John R. Clemency, Esq.

Greenberg Traurig, LLP

2375 East Camelback Road, Suite 700

Phoenix, Arizona 85016

Telephone: (602) 445-8575

Fax: (602) 445-8680

 

Ifto Buyer, at:

 

OptaCorporation

1350 OldBayshore Highway, Suite 600

Burlingame,California 94010

Attention:Vincent Yan

Tel. (650)579-3610

Fax (650)579-3606

 

with a copy to:

 

John M. Iino

Reed Smith LLP

1901 Avenue of the Stars, Suite 700

Los Angeles, California 90067

Tel. (310) 734-5251

Fax (310) 734-5299

 

Notice will be presumed to have been received upon delivery byovernight mail, by hand-delivery, or upon communication during regular hours ofthe recipient by facsimile, telecopier, or telefax.

 

(b)                                 Nodelay or omission by either party hereto in exercising any right or powerarising from any default by the other party hereto shall be construed as awaiver of such default or as an acquiescence therein, nor shall any single orpartial exercise thereof preclude any further exercise thereof or the exerciseof any other right or power arising from any default by the other party hereto.No waiver of any breach of any of the covenants or conditions contained in thisAgreement shall be construed to be a waiver of or an acquiescence in or aconsent to any previous or subsequent breach of the same or of any other conditionor covenant.

 

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(c)                                  ThisAgreement is made for the sole benefit of Seller and Buyer and their respectivesuccessors and permitted assigns, and no other person or persons shall have anyrights or remedies under or by reason of this Agreement or any right to theexercise of any right or power of either party hereto or arising from anydefault by either party hereto.

 

(d)                                 Inthe event any legal action is undertaken in order to enforce or interpret anyprovision of this Agreement, the prevailing party in such legal action, asdetermined by the court, shall be entitled to receive from the other party theprevailing party’s reasonable attorneys’ fees and court costs.

 

(e)                                  Timeis hereby declared to be of the essence of this Agreement and of every part hereof.When the context and construction so require, all words used in the singularherein shall be deemed to have been used in the plural and the masculine shallinclude the feminine and the neuter and vice versa.

 

(f)                                    Priorto Closing, this Agreement shall not be assigned by either party without thewritten consent of the other party, which consent may be withheld in suchother party’s sole discretion.

 

(g)                                 ThisAgreement constitutes the entire understanding between the parties hereto withrespect to the subject matter hereof, superseding all prior written or oralunderstandings, and may not be terminated, modified or amended in any wayexcept by a written agreement signed by each of the parties hereto.

 

(h)                                 ThisAgreement may be executed in two (2) or more counterparts, each ofwhich shall be deemed an original but all of which together shall constitutebut one and the same document.

 

(i)                                     ThisAgreement will be governed by and will be construed in accordance with the lawsof the State of Arizona, without giving effect to any conflicts of lawprinciples. Buyer and Seller agree that the exclusive venue for any litigationor disputes arising under or with respect to this Agreement or any documentsexecuted in connection herewith will be in Maricopa County, Arizona.

 

(j)                                     Buyerand Seller hereby acknowledge, confirm and agree that Buyer shall have noclaims against Seller, and Seller shall have no liability whatsoever as aresult of or otherwise in connection with any notice of default of Borrowerunder the Loan, or notice of sale or bankruptcy of Borrower.

 

(k)                                  Effectiveupon the Closing, Seller and Buyer each hereby covenant and agree to executeand deliver all such documents and instruments, and to take such further actionsas may be reasonably necessary or appropriate, from time to time, to carryout the intent and purpose of this Agreement and to consummate the transactionscontemplated hereby; provided, however, that all such documents and instrumentsexecuted, and actions taken, by Seller shall be without recourse to Seller, or,except as specifically and expressly provided in this Agreement, withoutrepresentation or warranty of any kind or nature whatsoever by Seller.

 

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(l)                                     Inaddition to and not in limitation of Buyer’s obligations pursuant to Section 4,Buyer hereby agrees to indemnify, defend and hold harmless Seller for, from andagainst any loss, damage, claim, cost, or expense (including reasonableattorneys’ fees and costs) arising as a consequence of a breach of anyobligations or representations or warranties by Buyer hereunder. Seller herebyagrees to indemnify, defend and hold harmless Buyer for, from and against anyloss, damage, claim, cost, or expense (including reasonable attorneys’ fees andcosts) arising as a consequence of a breach of any obligations orrepresentations or warranties by Seller hereunder. The foregoing indemnityobligations in this Section 13(l), and the representations,warranties, covenants and agreements of Buyer and Seller hereunder, shallsurvive the Closing.

 

14.                                 WAIVEROF JURY TRIAL. BUYER AND SELLER EACH ACKNOWLEDGE THAT THE RIGHT TO TRIAL BYJURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY, AFTERCONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIRCHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANYRIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE ORENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT OR THE LOAN OR THELOAN DOCUMENTS.

 

15.                                 Transition ofControl of Lockbox. Borrower has directed certain of its obligors to wiretransfer their remittances to the existing Lender Account, as defined in theLockbox Agreement. As an accommodation to Buyer, Seller will keep open theexisting Lender Account, Seller’s Account No. 4945088508 (“Seller’sAccount”) for 60 calendar days from the date of this Amendment. During this 60day period (i) Buyer will notify all obligors of Borrower to direct futurewires to the account identified as the Lender’s Account in the Amended andRestated Lockbox Agreement; and (ii) Seller will once each day deliver anyremittances received in Seller’s Account to the account of Buyer specified in (i) above.At the end of the 60 day period, Seller will close the Seller’s Account.

 

Notwithstanding any contrary provision ofthis Amendment or any other document or agreement, Buyer agrees to indemnifySeller for, from and against any losses, liabilities, damages, claims (including,but not limited to, third party claims), demands, obligations, actions, suits,judgments, penalties, costs or expenses, including but not limited to attorneys’fees, fees or charges of the Depository Bank or Lockbox Processor, chargesrelating to unpaid items or ACH overdrafts in the Seller’s Account(collectively “Losses and Liabilities”) suffered or incurred by Seller as aresult of, or in connection with, Seller’s agreement to keep open Seller’sAccount for the 60 day transition period as provided in this Amendment. Buyer’sindemnification obligations pursuant to this paragraph shall include anyliabilities charged to Seller’s Account resulting from unpaid items, ACHoverdrafts, or similar charges that were incurred prior to the Closing, but notyet processed, as well as any such charge incurred after the Closing. Buyer’sobligations to Seller under this paragraph shall survive sale and assignment ofthe Loan and Loan Documents pursuant to this Agreement.

 

[Signature pages follow.]

 

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IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as ofthe day and year first above written.

 
|   | SELLER:                                                            |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   | WELLS FARGO  BUSINESS CREDIT, a division   of Wells Fargo Bank, NA |
|   |                                                               |
|   | By:                                                                | By: | /s/ Darcy Della Flora |   |
|   | Title:                                                             | Vice President |
|   |                                                               |
|   |                                                               |
|   | BUYER:                                                             |
|   |                                                               |
|   | OPTA CORPORATION, a Delaware corporation                           |
|   |                                                               |
|   |                                                               |
|   | By:                                                                | /s/ Vincent Yan |   |
|   | President and CEO                                                  |
|        |                                                                    |  |  |  |  |  |

 

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EXHIBIT A

 

Purchase PriceCalculation

 

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EXHIBIT B

 

Index of LoanDocuments

 

1)

 

2)

 

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EXHIBIT C

 

Form ofAllonge and Endorsement to Note

 

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ALLONGE ANDENDORSEMENT

 

This Allonge and Endorsement is attached to and made a physical part ofthe Replacement Revolving Note, dated May 26, 2004, in the stated principalamount of $40,000,000.00, made by OPTA SYSTEMS, LLC, a Delaware limitedliability company, in favor of WELLS FARGO BUSINESS CREDIT, a division of WELLSFARGO BANK, NA, (formerly known as Wells Fargo Business Credit, Inc.) (the“Note”). The undersigned is the holder and owner of the Note.

 

The Note is hereby endorsed as follows:

 

“Pay to theorder of OPTA CORPORATION without recourse, warranty or representation by theundersigned of any kind, express or implied, except as expressed in that LoanSale Agreement, dated as of January 20, 2006, between the undersigned andOPTA CORPORATION.”

 

Dated: January 27, 2006

 
|   | WELLS FARGO BUSINESS CREDIT, a   division of Wells Fargo Bank, NA |
|--------|-------------------------------------------------------------------|
|   |                                                              |
|   |                                                              |
|   | By:                                                               | By: | /s/ Darcy Della Flora |   |
|   | Title:                                                            | Vice President |

 

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ALLONGE AND ENDORSEMENT

 

This Allonge and Endorsement is attached to and made a physical part ofthe Revolving Note, dated July 21, 2003, in the stated principal amount of$20,000,000.00, made by OPTA SYSTEMS, LLC, a Delaware limited liabilitycompany, in favor of WELLS FARGO BUSINESS CREDIT, a division of WELLS FARGOBANK, NA, (formerly known as Wells Fargo Business Credit, Inc.) (the “Note”).The undersigned is the holder and owner of the Note.

 

The Note is hereby endorsed as follows:

 

“Pay to theorder of OPTA CORPORATION without recourse, warranty or representation by theundersigned of any kind, express or implied, except as expressed in that LoanSale Agreement, dated as of January 20, 2006, between the undersigned andOPTA CORPORATION.”

 

Dated: January 27, 2006

 
|   | WELLS FARGO BUSINESS CREDIT, a   division of Wells Fargo Bank, NA |
|--------|-------------------------------------------------------------------|
|   |                                                              |
|   |                                                              |
|   | By:                                                               | By: | /s/ Darcy Della Flora |   |
|   | Title:                                                            | Vice President |

 

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EXHIBIT D

 

Assignment ofLoan Documents

 

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**ASSIGNMENT OF LOAN DOCUMENTS**

 

For valuable consideration, receipt of which is hereby acknowledged, inaccordance with, and subject to, the Loan Sale Agreement, dated as of January 20,2006, by and between WELLS FARGO BUSINESS CREDIT, a division of Wells FargoBank, NA (“Seller”), and OPTA CORPORATION, a Delaware corporation (“Buyer”),Seller hereby sells, transfers and assigns to Buyer all of Seller’s right,title and interest in, to and under the Loan Documents described in Schedule Iattached hereto and incorporated herein by this reference.

 

Dated as of January 27, 2006

 
|   | WELLS FARGO BUSINESS CREDIT, a   division of Wells Fargo Bank, NA |
|--------|-------------------------------------------------------------------|
|   |                                                              |
|   |                                                              |
|   | By:                                                               | By: | /s/ Darcy Della Flora |   |
|   | Title:                                                            | Vice President |

 

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SCHEDULE I

 

Loan Documents

 

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EXHIBIT E

 

Assignment ofUCC Financing Statement(s)

 

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**UCC FINANCING STATEMENT********AMENDMENT**

FOLLOWINSTRUCTIONS (front and back) CAREFULLY

 
| A. NAME & PHONE OF CONTACT AT FILER [optional]                                                                                                                                                                                                                                                                                                                                         |                                                                                                                       |                         |
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| B. SEND ACKNOWLEDGMENT TO: (Name and Address)                                                                                                                                                                                                                                                                                                                                                   |                                                                                                                       |                         |
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| ** **                                                                                                                                                                                                                                                                                                                                                                                      | **THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY**                                                                          |
| 1a. INITIAL FINANCING STATEMENT FILE #

 

31396491, filed 6/3/03                                                                                                                                                                                                                                                                                                                          | ** **                                                                                                                 | 1b.

o                       | This FINANCING  STATEMENT AMENDMENT is to be  filed [for record] (or recorded) in the REAL ESTATE RECORDS. |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 2. o TERMINATION: Effectiveness  of the Financing Statement identified above is terminated with respect to  security interest(s) of the Secured party authorizing this Termination  Statement.                                                                                                                                                                                        |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 3. o CONTINUATION: Effectiveness of the Financing Statement  identified above with respect to security interest(s) of the Secured Party  authorizing this Continuation Statement is continued for the additional period provided by applicable law.                                                                                                                                   |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 4. ýASSIGNMENT: (full or partial): Give  name of assignee in item 7a or 7b and address of assignee in item 7c; and  also give name of assignor in item 9.                                                                                                                                                                                                                        |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 5. AMENDMENT (PARTY INFORMATION): This Amendment affects o Debtor or o Secured Party of record. Check only one  of these two boxes.

Also check one of  the following three boxes and provide appropriate information in items  6 and/or 7.                                                                                                                                      |
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|    o                                                                                                                                                                                                                                                                                                                                                                                  | CHANGE name and/or address: Please  refer to the detailed instructions in regard to changing the name/address of  a party. | o                            | DELETE name: Give record name to be deleted  in item 6a or 6b. | o | ADD name: Complete item 7a or 7b, and also  item 7c; also complete items 7d-7g (if applicable). |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 6.                                                                                                                                                                                                                                                                                                                                                                                              | CURRENT RECORD INFORMATION                                                                                                 |
|                                                                                                                                                                                                                                                                                                                                                                                            | 6a. ORGANIZATION’S NAME                                                                                               |
|                                                                                                                                                                                                                                                                                                                                                                                            |                                                                                                                       |
| OR                                                                                                                                                                                                                                                                                                                                                                                              |                                                                                                                       |
|                                                                                                                                                                                                                                                                                                                                                                                            | 6b. INDIVIDUAL’S LAST NAME                                                                                            | FIRST NAME                   | MIDDLE NAME | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 7.                                                                                                                                                                                                                                                                                                                                                                                              | CHANGED (NEW) OR ADDED INFORMATION:                                                                                        |
| OR                                                                                                                                                                                                                                                                                                                                                                                              | 7a. ORGANIZATION’S NAME

Opta Corporation                                                                             |
| 7b. INDIVIDUAL’S LAST NAME                                                                                                                                                                                                                                                                                                                                                                 | FIRST NAME                                                                                                                 | MIDDLE NAME                  | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 7c. MAILING ADDRESS

1350 Old Bayshore Highway, Suite 600                                                                                                                                                                                                                                                                                                                                  | CITY

Burlingame                                                                                                           | STATE

CA                    | POSTAL CODE

  94010 | COUNTRY

  USA |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 7d. SEE INSTRUCTIONS                                                                                                                                                                                                                                                                                                                                                                            | ADD’L INFO REORGANIZATION  DEBTOR                                                                                | 7e. TYPE OF ORGANIZATION     | 7f. JURISDICTION OF ORGANIZATION | 7g. ORGANIZATIONAL  ID #, if any

 

o  NONE |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 | ** **                   |
| 8. AMENDMENT  (COLLATERAL CHANGE): check only  one box.                                                                                                                                                                                                                                                                                                                                         |
|   Describe collateral o                                                                                                                                                                                                                                                                                                                                                               | deleted or o                                                                                                               | added, or give entire o | restated collateral description, or describe collateral o | assigned. |
|                                                                                                                                                                                                                                                                                                                                                                                            |
|                                                                                                                                                                                                                                                                                                                                                                                            |
|                                                                                                                                                                                                                                                                                                                                                                                            |
| 9.          NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of assignor, if this is an Assignment). If this is an Amendment  authorized by a Debtor which adds collateral or adds the authorizing Debtor,  or if this is a Termination authorized by a Debtor, check here o and enter name of DEBTOR authorizing this  Amendment. |
|                                                                                                                                                                                                                                                                                                                                                                                            | 9a. ORGANIZATION’S NAME                                                                                               |
| OR                                                                                                                                                                                                                                                                                                                                                                                              | Wells Fargo Business Credit, Inc.                                                                                     |                         |   |   |
| 9b. INDIVIDUAL’S LAST NAME                                                                                                                                                                                                                                                                                                                                                                 | FIRST NAME                                                                                                                 | MIDDLE NAME                  | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 |
| ** **                                                                                                                                                                                                                                                                                                                                                                                      | ** **                                                                                                                 |
| 10. OPTIONAL FILER REFERENCE DATA                                                                                                                                                                                                                                                                                                                                                               |
| File with DE Secretary of State (Debtor is Opta Systems, LLC)                                                                                                                                                                                                                                                                                                                                   |
|                                                                                                                                                                                                                                                                                                                                                                                            |
| **FILING OFFICE COPY**– NATIONAL UCC FINANCING STATEMENT AMENDMENT  (FORM UCC3) (REV. 05/22/02)                                                                                                                                                                                                                                                                                       |
|                                                                                                                                                                                                                                                                                                                                                                                                 |                                                                                                                            |                              |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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**UCC FINANCING STATEMENT AMENDMENT**

FOLLOWINSTRUCTIONS (front and back) CAREFULLY

 
| A. NAME & PHONE OF CONTACT AT FILER [optional]                                                                                                                                                                                                                                                                                                                                                    |                                                                                                                                                                             |                         |
|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------|
|                                                                                                                                                                                                                                                                                                                                                                                                       |                                                                                                                                                                             |                         |
| B. SEND ACKNOWLEDGMENT TO: (Name and Address)                                                                                                                                                                                                                                                                                                                                                              |                                                                                                                                                                             |                         |
|                                                                                                                                                                                                                                                                                                                                                                                                       |                                                                                                                                                                             |                         |
|                                                                                                                                                                                                                                                                                                                                                                                                       |                                                                                                                                                                             |                         |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | **THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY**                                                                                                                                |
| 1a. INITIAL FINANCING STATEMENT FILE #

 

**     2003-0935619, Recorded 7/16/2003**                                                                                                                                                                                                                                                                                              | ** **                                                                                                                                                                       | 1b.

ý                  | This FINANCING STATEMENT AMENDMENT is to be filed (for record) (or  recorded) in the   REAL ESTATE RECORDS. |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 2. o TERMINATION: Effectiveness of the Financing Statement identified above  is terminated with respect to security interests(s) of the Secured Party  authorizing this Termination Statement.                                                                                                                                                                                                   |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 3. o CONTINUATION: Effectiveness of the Financing Statement identified  above with respect to security interest(s) of the Secured Party authorizing  this Continuation Statement is continued for the additional period provided  by applicable law.                                                                                                                                                  |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 4. ý ASSIGNMENT (full or partial): Give name of  assignee in item 7a or 7b and address of assignee in item 7c; and also give  name of assignor in item 9.                                                                                                                                                                                                                                   |
|                                                                                                                                                                                                                                                                                                                                                                                                       |
| 5. AMENDMENT (PARTY INFORMATION): This Amendment affects o Debtor or o Secured Party of record. Check only one  of these two boxes.  Also check one of the following three boxes and provide appropriate  information in items 6 and/or 7.                                                                                                                                                  |
|     o                                                                                                                                                                                                                                                                                                                                                                                            | CHANGE name and/or address: Give current record name in item 6a or 6b;  also give new name (if name change) in item 7a or 7b and/or new address (if  address change) in item 7c. | o                            | DELETE name: Give record name to be deleted in item 6a or 6b. | o | ADD name: Complete item 7a or 7b, and also item 7c; also complete  items 7d-7g (if applicable). |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 6.                                                                                                                                                                                                                                                                                                                                                                                                         | CURRENT RECORD INFORMATION:                                                                                                                                                      |
|                                                                                                                                                                                                                                                                                                                                                                                                       | 6a. ORGANIZATION’S NAME                                                                                                                                                     |
|                                                                                                                                                                                                                                                                                                                                                                                                       |                                                                                                                                                                             |
| OR                                                                                                                                                                                                                                                                                                                                                                                                         |                                                                                                                                                                             |
|                                                                                                                                                                                                                                                                                                                                                                                                       | 6b. INDIVIDUAL’S LAST NAME                                                                                                                                                  | FIRST NAME                   | MIDDLE NAME | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 7.                                                                                                                                                                                                                                                                                                                                                                                                         | CHANGED (NEW) OR ADDED INFORMATION:                                                                                                                                              |
|                                                                                                                                                                                                                                                                                                                                                                                                       | 7a. ORGANIZATION’S NAME

**Opta Corporation**                                                                                                                               |
| OR                                                                                                                                                                                                                                                                                                                                                                                                         |                                                                                                                                                                             |
|                                                                                                                                                                                                                                                                                                                                                                                                       | 7b. INDIVIDUAL’S LAST NAME                                                                                                                                                  | FIRST NAME                   | MIDDLE NAME | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 7c. MAILING ADDRESS

**1350 Old  Bayshore Highway, Suite 600**                                                                                                                                                                                                                                                                                                                                        | CITY

**  Burlingame**                                                                                                                                                 | STATE

**  CA**    | POSTAL CODE

**  94010** | COUNTRY

**  USA** |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 7d. TAX ID #:  SSN OR EIN                                                                                                                                                                                                                                                                                                                                                                             | ADD’L INFO REORGANIZATION  DEBTOR                                                                                                                                      | ** **                   | 7e. TYPE OF ORGANIZATION | ** ** | 7f. JURISDICTION OF ORGANIZATION | ** ** | 7g. ORGANIZATIONAL  ID #, if any

 

o  NONE |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       | ** **                   |
| 8. AMENDMENT  (COLLATERAL CHANGE): check only  one box.                                                                                                                                                                                                                                                                                                                                                    |
| Describe collateral o                                                                                                                                                                                                                                                                                                                                                                                      | deleted or o                                                                                                                                                                     | added, or give entire o | restated collateral description, or describe collateral o  |  assigned. |
|                                                                                                                                                                                                                                                                                                                                                                                                       |
|                                                                                                                                                                                                                                                                                                                                                                                                       |
|                                                                                                                                                                                                                                                                                                                                                                                                       |
| 9.          NAME OF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT (name of  assignor, if this is an Assignment). If this is an Amendment authorized by a  Debtor which adds collateral or adds the authorizing Debtor, or if this is a  Termination authorized by a Debtor, check here o and enter name of DEBTOR authorizing this  Amendment. |
|                                                                                                                                                                                                                                                                                                                                                                                                       | 9a. ORGANIZATION’S NAME                                                                                                                                                     |
| OR                                                                                                                                                                                                                                                                                                                                                                                                         | **Wells Fargo Business Credit, Inc.**                                                                                                                                       |                         |   |   |
| 9b. INDIVIDUAL’S LAST NAME                                                                                                                                                                                                                                                                                                                                                                            | FIRST NAME                                                                                                                                                                       | MIDDLE NAME                  | SUFFIX |
| ** **                                                                                                                                                                                                                                                                                                                                                                                                 | ** **                                                                                                                                                                       |
| 10. OPTIONAL FILER REFERENCE DATA                                                                                                                                                                                                                                                                                                                                                                          |
| **      Record Maricopa County, AZ Recorder.  Debtor is Opta Systems, LLC.**                                                                                                                                                                                                                                                                                                      |
|                                                                                                                                                                                                                                                                                                                                                                                                       |
| **FILING OFFICE COPY**– NATIONAL UCC FINANCING STATEMENT AMENDMENT  (FORM UCC3) (REV. 07/29/98)                                                                                                                                                                                                                                                                                                  |
|                                                                                                                                                                                                                                                                                                                                                                                                            |                                                                                                                                                                                  |                              |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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EXHIBIT F

 

Consent andAgreement of Borrower and Guarantor

 

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**CONSENT AND AGREEMENT OF BORROWER ANDGUARANTOR**

 

The undersigned acknowledges that it is the borrower or guarantor(each, an “Obligor”) with respect to the loan (the “Loan”) from WELLS FARGOBUSINESS CREDIT, a division of Wells Fargo Bank, NA (“Existing Lender”) to OPTASYSTEMS, LLC, a Delaware limited liability company, which Loan is evidenced by,among other documents, the Revolving Note, dated July 21, 2003 in thestated principal amount of $20,000,000.00 (the “Note”).

 

Capitalized terms not otherwise defined herein shall have the meaningsascribed to them in the Loan Sale Agreement (the “Agreement”) of even dateherewith between Existing Lender and OPTA CORPORATION, a Delaware corporation (“Lender”).The following statements are made with the knowledge that Lender, as purchaserof the Note and the Loan, is relying on them in connection with its purchase ofthe Loan from Existing Lender and that Lender and Lender’s successors andassigns may rely on them for that purpose. The undersigned herebycertifies to Lender, that:

 

1.                                       Obligor is aparty to certain of the Loan Documents.

 

2.                                       The LoanDocuments are unmodified except as reflected in the Agreement and in full forceand effect.

 

3.                                       Theoutstanding principal balance of the Loan as of January 27, 2006 is$2,189,148.13.

 

4.                                       Noevent has occurred and no condition exists that constitutes, or that with thegiving of notice or the lapse of time or both, would constitute, a default byExisting Lender in connection with the Loan. Obligors have no defenses,set-offs or offsets, of any kind, against the enforcement of the Loan or anyamounts payable thereunder.

 

5.                                       Obligor consentsto Lender’s purchase of the Loan and agrees that Lender shall have all rightsand remedies granted to Existing Lender under the Note and other LoanDocuments.

 

6.                                       Theundersigned is duly authorized to execute this certificate on behalf ofObligor. The execution, delivery and performance of this certificate by Obligorhave been duly authorized by all necessary company or trust action, asapplicable.

 

7.                                       Noconsent of any person or entity is necessary to Obligor’s execution, deliveryand performance of this agreement, or if such consent is required, it has beenobtained.

 

8.                                       Themaking, execution, delivery and performance of the Loan Documents to whichObligor is a party have been duly authorized by Obligor. The Loan Documentsconstitute legal, valid and binding obligations, enforceable against Obligor inaccordance with their respective terms.

 

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9.                                       Thisagreement may be executed in one or more counterparts, each of which shallbe an original, but which together shall constitute but one and the samedocument. Signatures may be given by facsimile or other electronictransmission, and such signatures shall be fully binding on the party sendingthe same.

 

[Signature page follows.]

 

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| Dated as of January 20, 2006. |                                                     |
|------------------------------------|----------------------------------------------------------|
|                               |                                                     |
|                               | OBLIGOR:                                                 |
|                               |                                                     |
|                               | OPTA SYSTEMS, LLC, a Delaware limited  liability company |
|                               |                                                     |
|                               |                                                     |
|                               | By:                                                      | /s/Chris Porter |   |
|                               | Senior Vice President                                    |
|                               |                                                     |
|                               |                                                     |
|                               | OPTA CORPORATION, a Delaware corporation                 |
|                               |                                                     |
|                               |                                                     |
|                               | By:                                                      | /s/ Vincent Yan |   |
|                               | President and CEO                                        |
|                                    |                                                          |  |  |  |

 

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