Exhibit 10.01


 


DEFAULT
WAIVER AND FIRST AMENDMENT


TO


LOAN AND
SECURITY AGREEMENT


 


This DEFAULT WAIVER AND FIRST
AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into this 22nd day
of February, 2006, by and between Silicon Valley Bank (“Bank”) and Versant
Corporation, a California corporation (“Borrower”) whose address is 6539
Dumbarton Circle, Fremont, CA  94555.


 


RECITALS


 


 A. Bank and Borrower
have entered into that certain Loan and Security Agreement dated as of June 16,
2005, by and between Bank and Borrower (as the same may from time to time be
amended, modified, supplemented or restated, the “Loan Agreement”). Bank has
extended credit to Borrower for the purposes permitted in the Loan Agreement.


 


 B. Borrower is
currently in default of the Loan Agreement for failing to (1)  comply with the covenants set forth in
Section 6.2(a)(i) for the months ended November 30, 2005, December 31, 2005 and
January 31, 2006  and (2) Section 7.1 of
the Loan Agreement, (each of the defaults under (1) and (2), collectively, the “Existing
Defaults”).


 


C. Borrower has
requested that Bank waive its rights and remedies against Borrower, limited
specifically to the Existing Defaults. Although Bank is under no obligation to
do so, Bank is willing to not exercise its rights and remedies against Borrower
related to the specific Existing Defaults on the terms and conditions set forth
in this Amendment, so long as Borrower complies with the terms, covenants and
conditions set forth in this Amendment.


 


D. Borrower has
further requested that Bank amend the Loan Agreement to amend the monthly
financial statement reporting requirement. Bank has agreed to so amend certain
provisions of the Loan Agreement, but only to the extent, in accordance with
the terms, subject to the conditions and in reliance upon the representations
and warranties set forth below.


 


AGREEMENT


 


 NOW, THEREFORE, in
consideration of the foregoing recitals and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound, the parties hereto agree as follows:


 


Definitions. Capitalized
terms used but not defined in this Amendment shall have the meanings given to
them in the Loan Agreement.


 


Waiver of Covenant Default.


 


Bank hereby waives Borrower’s existing default under the Loan Agreement
by virtue of Borrower’s failure to comply with Section 6.2(a)(i) for the months
ended November 30, 2005, December 31, 2005 and January 31, 2006.


 

















 


Bank also
waives Borrower’s existing default under the Loan Agreement by virtue of
Borrower’s failure to comply with Section 7.1 by Borrower’s failure to obtain
Bank’s prior consent with respect to the sale of certain assets of the
WebSphere Business as defined in that certain Asset Purchase Agreement between
Versant Corporation and Sima Solutions dated February 1, 2006. Bank’s waiver of
Borrower’s compliance of these covenants shall apply only to the foregoing
period. Accordingly, hereinafter, Borrower shall be in compliance with these
covenants.


 


 Bank’s agreement to waive the above-described
defaults (1) in no way shall be deemed an agreement by the Bank to waive
Borrower’s compliance with the above-described covenants as of all other dates
and (2) shall not limit or impair the Bank’s right to demand strict performance
of these covenants as of all other dates and (3) shall not limit or impair the
Bank’s right to demand strict performance of all other covenants as of any
date.


 


Amendments to Loan Agreement.


 


Section 6.2 (Financial Statements, Reports, Certificates).


 


Section
6.2(a)(i) is hereby amended to read as follows:


 


 (i) at such times as outstanding Obligations
exist, as soon as available, but no later than thirty (30) days after the last
day of each month, a company prepared consolidated balance sheet and income
statement covering Borrower’s consolidated operations during the period
certified by a Responsible Officer and in a form acceptable to Bank.


 


Limitation
of Amendments.


 


The amendment set forth in Section 3, above, are effective for the
purposes set forth herein and shall be limited precisely as written and shall
not be deemed to (a) be a consent to any amendment, waiver or modification of
any other term or condition of any Loan Document, or (b) otherwise prejudice
any right or remedy which Bank may now have or may have in the future under or
in connection with any Loan Document.


 


This Amendment shall be construed in connection with
and as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein amended, are hereby ratified and confirmed and shall remain in full
force and effect.


 


Representations and Warranties. To induce Bank
to enter into this Amendment, Borrower hereby represents and warrants to Bank
as follows:


 


Immediately after giving effect to this Amendment
(a) the representations and warranties contained in the Loan Documents are
true, accurate and complete in all material respects as of the date hereof
(except to the extent such representations and


 

















 


warranties relate to an earlier date, in which case they are true and
correct as of such date), and (b) no Event of Default other than the Existing
Defaults has occurred and is continuing;


 


Borrower has the power and authority to execute and deliver
this Amendment and to perform its obligations under the Loan Agreement, as
amended by this Amendment;


 


The organizational documents of Borrower delivered
to Bank on the June 16, 2005 remain true, accurate and complete and have not
been amended, supplemented or restated and are and continue to be in full force
and effect;


 


The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, have been duly authorized by all
necessary action on the part of Borrower;


 


The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, do not and will not contravene (a) any
law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or
decree of any court or other governmental or public body or authority, or
subdivision thereof, binding on Borrower, or (d) the organizational documents
of Borrower;


 


The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, do not require any order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by any governmental or public body or
authority, or subdivision thereof, binding on either Borrower, except as
already has been obtained or made; and


 


This Amendment has been duly executed and delivered
by Borrower and is the binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to
or affecting creditors’ rights.


 


Prior Agreement. Except as
expressly provided for in this Amendment, the Loan Documents are hereby
ratified and reaffirmed and shall remain in full force and effect. This
Amendment is not a novation and the terms and conditions of this Amendment
shall be in addition to and supplemental to all terms and conditions set forth
in the Loan Documents. In the event of any conflict or inconsistency between
this Amendment and the terms of such documents, the terms of this Amendment
shall be controlling, but such document shall not otherwise be affected or the
rights therein impaired.


 


Release by Borrower.


 


FOR GOOD AND VALUABLE CONSIDERATION, Borrower
hereby


 

















 


forever relieves, releases, and discharges Bank and its present or
former employees, officers, directors, agents, representatives, attorneys, and
each of them, from any and all claims, debts, liabilities, demands, obligations,
promises, acts, agreements, costs and expenses, actions and causes of action,
of every type, kind, nature, description or character whatsoever, whether known
or unknown, suspected or unsuspected, absolute or contingent, arising out of or
in any manner whatsoever connected with or related to facts, circumstances,
issues, controversies or claims existing or arising from the beginning of time
through and including the date of execution of this Amendment (collectively “Released Claims”). Without limiting the
foregoing, the Released Claims shall include any and all liabilities or claims
arising out of or in any manner whatsoever connected with or related to the
Loan Documents, the Recitals hereto, any instruments, agreements or documents
executed in connection with any of the foregoing or the origination,
negotiation, administration, servicing and/or enforcement of any of the
foregoing.


 


In furtherance of this release, Borrower expressly
acknowledges and waives any and all rights under Section 1542 of the California
Civil Code, which provides as follows:


 


“A general release does not extend to claims which the creditor
does not know or expect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his settlement
with the debtor.” (Emphasis added.)


 


By entering into this release, Borrower recognizes
that no facts or representations are ever absolutely certain and it may
hereafter discover facts in addition to or different from those which it
presently knows or believes to be true, but that it is the intention of
Borrower hereby to fully, finally and forever settle and release all matters,
disputes and differences, known or unknown, suspected or unsuspected;
accordingly, if Borrower should subsequently discover that any fact that it
relied upon in entering into this release was untrue, or that any understanding
of the facts was incorrect, Borrower shall not be entitled to set aside this
release by reason thereof, regardless of any claim of mistake of fact or law or
any other circumstances whatsoever. Borrower acknowledges that it is not
relying upon and has not relied upon any representation or statement made by
Bank with respect to the facts underlying this release or with regard to any of
such party’s rights or asserted rights.


 


This release may be pleaded as a full and complete
defense and/or as a cross-complaint or counterclaim against any action, suit,
or other proceeding that may be instituted, prosecuted or attempted in breach
of this release. Borrower acknowledges that the release contained herein
constitutes a material inducement to Bank to enter into this Amendment, and
that Bank would not have done so but for Bank’s expectation that such release
is valid and enforceable in all events.


 


Borrower hereby represents and warrants to Bank, and
Bank is relying thereon, as follows:


 

















 


Except as expressly stated in this Amendment,
neither Bank nor any agent, employee or representative of Bank has made any
statement or representation to Borrower regarding any fact relied upon by
Borrower in entering into this Amendment.


 


Borrower has made such investigation of the facts
pertaining to this Amendment and all of the matters appertaining thereto, as it
deems necessary.


 


The terms of this Amendment are contractual and not
a mere recital.


 


This Amendment has been carefully read by Borrower,
the contents hereof are known and understood by Borrower, and this Amendment is
signed freely, and without duress, by Borrower.


 


Borrower represents and warrants that it is the sole
and lawful owner of all right, title and interest in and to every claim and
every other matter which it releases herein, and that it has not heretofore
assigned or transferred, or purported to assign or transfer, to any person,
firm or entity any claims or other matters herein released. Borrower shall
indemnify Bank, defend and hold it harmless from and against all claims based
upon or arising in connection with prior assignments or purported assignments
or transfers of any claims or matters released herein.


 


Counterparts. This Amendment
may be executed in any number of counterparts and all of such counterparts
taken together shall be deemed to constitute one and the same instrument.


 


Effectiveness. This
Amendment shall be deemed effective upon (a) the due execution and delivery to
Bank of this Amendment by each party hereto, (b) Borrower’s payment of an
amendment fee in an amount equal to $1,000.


 


Governing Law. This Amendment
and the rights and obligations of the parties hereto shall be governed by and construed
in accordance with the laws of the State of California.


 

















 


IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the date first written above.


 


 


	
   SILICON VALLEY BANK:

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  Versant
  Corporation

  
	
  By

  	
  By

  
	
   

  	
   

  
	
  /s/
  Heather E. Hamilton

  	
  /s/
  Jochen Witte

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Relationship
  Manager

  	
  Chief
  Executive Officer