Exhibit 10.3


 


THIRD PARTY


SECURITY AGREEMENT

(RadView
Software Ltd.)


 


This Third Party
Security Agreement (this “Agreement”)
is made and entered into as of this May 25, 2005 by and between RADVIEW
SOFTWARE LTD., a company registered with the Israeli Registrar of Companies
under number 51-1627952 (“Guarantor”),
and COMERICA BANK (the “Lender”).


 


RECITALS


 


The Lender
proposes to enter into a credit facility with RADVIEW SOFTWARE, INC. (“Borrower”), pursuant to a certain Loan and
Security Agreement dated May 25, 2005, as amended from time to time (the “Loan Agreement”). Guarantor expects to
derive economic benefit from Lender doing so and dealing with Borrower in
accordance with the Loan Agreement, and has entered into an Unconditional
Guaranty with the Lender of even date herewith with respect to the present and
future obligations of Borrower to Lender (as amended from time to time, the “Guaranty”), a copy of which is attached
hereto as Exhibit A. Guarantor wishes to secure performance and payment
of all its obligations to Lender under the Guaranty, under the Loan Agreement
and under any of the Loan Documents (as defined in the Loan Agreement)
(together the “Guarantor’s Obligations”),
with certain of its assets. In addition, Guarantor has entered into a Share Pledge
Agreement with the Lender of even date herewith with respect to its right,
title and interest to all the equity securities in each of the Parent
Subsidiaries (the “Share Pledge Agreement”),
which also secures performance of the Guarantor Obligations.  All terms used without definition in this
Agreement (including the exhibits to this Agreement) shall have the meaning
assigned to them in the Loan Agreement. Notwithstanding the above and the
definitions set forth in the Loan Agreement, the term “Material Adverse Effect”,
as used herein, shall relate to the Guarantor and the Parent Subsidiaries as a
whole and shall also include the ability of Guarantor to perform the Guarantor
Obligations. The term “Change in Control”, as used herein, shall relate to
Guarantor as opposed to the Borrower.


 


NOW, THEREFORE,
for good and valuable consideration, receipt of which is hereby acknowledged,
and intending to be legally bound, as collateral security for the prompt and
complete payment when due of the Guarantor Obligations, Guarantor hereby
represents, warrants, covenants and agrees as follows:


 


1.             Grant
of Security Interests.  To secure all
of the Guarantor’s Obligations, Guarantor grants to the Lenders the following
security interests:


 


(a)           subject to Section 1(d)(i), a first
priority fixed charge on all of Guarantor’s right, title and interest to and
under its Intellectual Property Collateral (including without limitation those
Copyrights, Patents and Trademarks listed on Exhibit B  hereto and including without limitation all
proceeds thereof (such as, by way of example but not by way of limitation,
license royalties and proceeds of infringement suits), the right to sue for
past, present and future infringements, all rights corresponding thereto
throughout the world and all re-issues, divisions continuations, renewals,
extensions and continuations-in-part thereof (together “Fixed IP
Charge”);


 


(b)           subject to Section 1(d)(ii), a first
priority fixed charge (subject only to the prior security interests of: (i)
Reichmann, Albar and Avis in, collectively, up to $100,000 of cash, and (ii)
Bank Hapoalim, in each case securing only those obligations specified in
Schedule 2.3 hereto) (“Fixed Bank Account
Charge”) on the Guarantor’s bank account at Bank Hapoalim, Branch
#610, Account#426990 (the “Bank Account”)
and including without limitation all of its cash, investment property,
securities, deposit accounts, trust accounts and any other value attributed to
the Guarantor and held by Bank Hapoalim in Israel (“Bank Hapoalim”) at the Bank Account or at any other account or
deposit box with Bank Hapoalim now or hereinafter acquired (collectively the “Bank Hapoalim Collateral”); and


 


(c)           a first ranking floating charge (the “Floating Charge”), on all of Guarantor’s
rights, titles and interest in all its present and future tangible and
intangible assets of any kind whether contingent or absolute relating to the
property of the Guarantor described in Exhibit C (collectively, the
“Floating Collateral”). For the 


 





















 


avoidance
of doubt such Collateral shall exclude all assets of the Company with the
exception of the following (i) Intellectual Property Collateral, (ii)
Collateral (as defined in the Share Pledge Agreement) and (iii) the Bank
Hapoalim Collateral, all as further set forth and described in Exhibit C.


 


(d)           Notwithstanding any other provision
of this Agreement or the other Loan Documents: (i) Guarantor’s grant to the
Lender of a security interest in the Intellectual Property Collateral shall not
prevent Guarantor from granting or restrict Guarantor’s ability to grant, prior
to the occurrence of an Event of Default, non-exclusive licenses to the
Intellectual Property Collateral to its customers in the ordinary course of
business; and (ii) Guarantor’s grant to the Lender of a security interest in
the Bank Account shall not prevent Guarantor from withdrawing funds from the
Bank Account in the ordinary course of business so long as no Event of Default
exists or would result from any such withdrawal.


 


All
Floating Collateral pledged to the Lender in accordance with the terms of this
Agreement by way of, Fixed IP Charge, Fixed Bank Account Charge or Floating
Charge, shall hereinafter be referred to as the “Charged Collateral”.


 


2.     Guarantor’s Representations and Warranties.  Except as set forth in the attached
Schedules, Guarantor represents and warrants to the Lender, as follows:


 


2.1           Due Organization
and Qualification.  Guarantor is a
company duly existing under the laws of the State of Israel and is licensed to
do business in any jurisdiction in which the conduct of its business or its
ownership of property requires that it be so qualified, except where the
failure to do so would not reasonably be expected to cause a Material Adverse
Effect.


 


2.2           Due
Authorization; No Conflict; Validity and Enforceability.  The execution, delivery, and performance of
this Agreement are within Guarantor’s powers, have been duly authorized, and
are not in conflict with nor constitute a breach of any provision contained in
Guarantor’s Memorandum or Articles of Association, nor will they constitute an
event of default under any material agreement by which Guarantor is bound.  Guarantor is not in default under any
agreement by which it is bound, except to the extent such default would not
reasonably be expected to cause a Material Adverse Effect. This Agreement
including but not limited to the creation of the Charged Collateral, shall
constitute valid and binding obligations of the Guarantor, enforceable in
accordance with their terms (except as may be limited by bankruptcy, insolvency
and similar laws affecting the enforcement of creditor rights in general and
subject to general principles of equity).


 


2.3           Floating
Collateral.  Guarantor has rights in
or the power to transfer all or any portion of the Floating Collateral, and
such Floating Collateral is free and clear of Liens, adverse claims, and
restrictions on transfer or pledge.


 


2.4           Intellectual
Property Collateral.  Guarantor is
the sole owner of the Intellectual Property Collateral, except for licenses
granted by Guarantor to its customers in the ordinary course of business.  To the best of Guarantor’s knowledge, each of
the Copyrights, Trademarks and Patents is valid and enforceable, and no part of
the Intellectual Property Collateral has been judged invalid or unenforceable,
in whole or in part, and no claim has been made to Guarantor that any part of
the Intellectual Property Collateral violates the rights of any third party
except to the extent such claim would not reasonably be expected to cause a
Material Adverse Effect.  Guarantor’s
rights as a licensee of intellectual property do not give rise to more than 5%
of its gross revenue in any given month, including without limitation revenue
derived from the sale, licensing, rendering or disposition of any product or
service.  All of the Intellectual
Property Collateral that is material to the businesses of either Guarantor or
Borrower or that gives rise to more than 5% of either Guarantor’s or Borrower’s
gross revenue in any given month from and after the date hereof: (a) was
developed after January 1, 2000 without any support or funding from the Israeli
Office of the Chief Scientist of the Industry of Ministry and Trade (the
“OCS”), (b) is not derived from research
and development developed under any program sponsored by the OCS, (c) is freely
transferable without regard to any limitations, restrictions, or requirements
for approvals or consent from the OCS or any other governmental body,
and (d) is not subject to the restrictions set forth under the Israeli law for
the Encouragement of Industrial Research and Development, 1984, as amended.


 





















 


2.5           Litigation.  There are no actions or proceedings pending
by or against Guarantor before any court or administrative agency in which an
adverse decision would reasonably be expected to have a Material Adverse
Effect.


 


2.6           No Material
Adverse Change in Financial Statements. 
All consolidated and consolidating financial statements related to
Guarantor and any Parent Subsidiary that are delivered by Guarantor to Lender
fairly present in all material respects Guarantor’s consolidated and
consolidating financial condition as of the date thereof and Guarantor’s
consolidated and consolidating results of operations for the period then
ended.  There has not been a material
adverse change in the consolidated or in the consolidating financial condition
of Guarantor since the date of the most recent of such financial statements
submitted to Lender.


 


2.7           Solvency, Payment
of Debts.  Guarantor is able to pay
its debts (including trade debts) as they mature; the fair saleable value of
Guarantor’s assets (including goodwill minus disposition costs) exceeds the
fair value of its liabilities; and Guarantor is not left with unreasonably
small capital after the transactions contemplated by this Agreement.


 


2.8           Compliance with
Laws and Regulations.  Guarantor has
not violated any statutes, laws, ordinances or rules applicable to it, the
violation of which would reasonably be expected to have a Material Adverse
Effect. Guarantor has filed or caused to be filed all tax returns required to
be filed, and have paid, or have made adequate provision for the payment of,
all taxes reflected therein except those being contested in good faith with
adequate reserves under GAAP or where the failure to file such returns or pay
such taxes would not reasonably be expected to have a Material Adverse Effect.


 


2.9           Government
Consents.  Guarantor has obtained all
consents, approvals and authorizations of, made all declarations or filings
with, and given all notices to, all governmental authorities that are necessary
for the execution of this Agreement and for the continued operation of
Guarantor’s business as currently conducted, except where the failure to do so
would not reasonably be expected to cause a Material Adverse Effect.


 


3.             Positive
Covenants.


 


3.1           Government
Compliance.  Guarantor shall comply,
and shall cause each Parent Subsidiary to comply, with all statutes, laws,
ordinances and government rules and regulations to which it is subject, and
shall maintain, and shall cause each Parent Subsidiaries to maintain, in force
all licenses, approvals and agreements, the loss of which or failure to comply
with which would reasonably be expected to have a Material Adverse Effect.


 


3.2           Registration of
Intellectual Property Rights. 
Guarantor shall register or cause to be registered on an expedited basis
(to the extent not already registered) with the United States Patent and
Trademark Office, the United States Copyright Office and the Israeli Registrar
of Patents and Trademarks, as the case may be, those registrable intellectual
property rights now owned or hereafter developed or acquired by Guarantor, to
the extent that Guarantor, in its reasonable business judgment, deems it
appropriate to so protect such intellectual property rights. Guarantor shall
promptly give Lender written notice of any applications or registrations of
intellectual property rights filed with the United States Patent and Trademark
Office or Israeli Registrar of Patents and Trademarks, including the date of
such filing and the registration or application numbers, if any. Guarantor
shall (i) give Lender not less than 30 days prior written notice of the filing
of any applications or registrations with the United States Copyright Office,
including the title of such intellectual property rights to be registered, as
such title will appear on such applications or registrations, and the date such
applications or registrations will be filed; (ii) prior to the filing of any
such applications or registrations, execute such documents as Lender may
reasonably request for Lender to maintain its perfection in such intellectual
property rights to be registered by Guarantor; (iii) upon the request of
Lender, either deliver to Lender or file such documents simultaneously with the
filing of any such applications or registrations; (iv) upon filing any such
applications or registrations, promptly provide Lender with a copy of such
applications or registrations together with any exhibits, evidence of the
filing of any documents requested by Lender to be filed for Lender to maintain
the perfection and priority of its security interest in such intellectual
property rights, and the date of such filing. Lender shall execute and deliver
such additional instruments


 





















 


and documents from
time to time as Lender shall reasonably request to perfect and maintain the
perfection and priority of Lender’s security interest in the Intellectual
Property Collateral. Guarantor shall (i) protect, defend and maintain the
validity and enforceability of the trade secrets, Trademarks, Patents and
Copyrights, (ii) use commercially reasonable efforts to detect infringements of
the Trademarks, Patents and Copyrights and promptly advise Lender in writing of
material infringements detected and (iii) not allow any material Trademarks,
Patents or Copyrights to be abandoned, forfeited or dedicated to the public
without the written consent of Lender, which shall not be unreasonably
withheld. Lender may audit Lender’s Intellectual Property Collateral to confirm
compliance with this Section 3.2, provided such audit may not occur more often
than twice per year, unless an Event of Default has occurred and is
continuing.  Lender shall have the right,
but not the obligation, to take, at Guarantor’s sole expense, any actions that
Guarantor is required under this Section 3.2 to take but which Guarantor fails
to take, after 15 days’ notice to Guarantor. 
Guarantor shall reimburse and indemnify Lender for all reasonable costs
and reasonable expenses incurred in the reasonable exercise of its rights under
this Section 3.2.


 


3.3           Perfection of
Security Interest.  Guarantor shall
execute and deliver such documents as Lender reasonably deems necessary to
create, perfect and continue the security interest in any portion of the
Charged Collateral.  Notwithstanding the
above, by no later then within twenty-one (21) days of the date hereof,
Guarantor shall be obligated to file this Agreement, together with the
Guaranty, with the Israeli Registrar of Companies and provide Lender said
documents together with forms for creating a floating charge stamped to indicate filing with the Israeli
Registrar of Companies in the form attached hereto as Exhibit D and a
certificate of registration evidencing such filing.


 


3.4           Insurance of
Charged Collateral.  Guarantor, at
its expense, shall keep the Charged Collateral insured against loss or damage
by fire, theft, explosion, sprinklers, and all other hazards and risks, and in
such amounts, as ordinarily insured against by other owners in similar businesses
conducted in the locations where Guarantor’s business is conducted on the date
hereof.  Guarantor shall also maintain
insurance relating to Guarantor’s ownership and use of the Charged Collateral
in amounts and of a type that are customary to businesses similar to Guarantor’s.
All such policies of insurance shall be in such form, with such companies, and
in such amounts as reasonably satisfactory to the Lender.  All such policies of property insurance shall
contain Lender’s loss payable endorsement, in a form satisfactory to Lender,
showing Lender as an additional loss payee thereof and all liability insurance
policies shall show Lender, as an additional insured, and shall specify that
the insurer must give at least twenty (20) days notice to Lender before
canceling its policy for any reason. 
Upon Lender’s request, Guarantor shall deliver to Lender certified
copies of such policies of insurance and evidence of the payments of all
premiums therefor. If an Event of Default has occurred, all proceeds payable
under any such policy shall, at the option of Lender, be payable to Lender to
be applied on account of the Guarantor Obligations.


 


3.5           Records.  Guarantor shall prepare and keep, in
accordance with generally accepted accounting principles consistently applied,
complete and accurate records regarding any portion of the Charged Collateral,
and, if and when requested by the Lender, shall prepare and deliver a complete
and accurate schedule of all or any portion of the Charged Collateral in such
detail as the Lender may reasonably require.


 


3.6           Inspection of
Guarantor.  Upon reasonable prior
notice and at reasonable times during normal business hours, Guarantor hereby
authorizes Lender’s officers, employees, representatives and agents to inspect
all or any portion of the Charged Collateral and to discuss the Charged
Collateral and any books and records related thereto with Guarantor’s officers
and employees.


 


3.7           Fees and Costs.  Guarantor shall pay all reasonable
registration fees and expenses, including reasonable attorneys’ fees, incurred
by Lender in the preservation, realization, enforcement or exercise of any
Lender’s rights under this Agreement.


 


3.8           Notice to Lender.  Guarantor shall be obligated to provide
written notice to Lender of: (i) any litigation or administrative or regulatory
proceeding affecting Guarantor where relief requested would reasonably be
expected to have a Material Adverse Effect; (ii) any substantial dispute which may exist between Guarantor or any
governmental or regulatory authority, which would reasonably be expected to
have a Material Adverse Effect; (iii) any change in the location of any of
Guarantor’s places of business or any portion of the Charged Collateral at
least thirty (30) days in advance of such change, or of the establishment of
any new, or the discontinuance of any existing, place of business and (iv) any
dispute or default by Guarantor or any other party under any joint


 





















 


venture, partnering, distribution, cross-licensing, strategic alliance,
collaborative research or manufacturing, license or similar agreement which
would reasonably be expected to have a Material Adverse Effect.


 


4.             Negative Covenants.  Guarantor shall not:


 


4.1           Mergers or
Acquisitions.  Merge or consolidate,
or permit any of its Parent Subsidiaries to merge or consolidate, with or into
any other business organization (other than mergers or consolidations of a
Parent Subsidiary (other than Borrower) into another Parent Subsidiary or of a
Parent Subsidiary (other than Borrower) into Guarantor), or acquire, or permit
any of its Parent Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person except where (i) such transactions
do not in the aggregate exceed $250,000 during any fiscal year, (ii) no Event of
Default has occurred, is continuing or would exist after giving effect to such
transactions, (iii) such transactions do not result in a Change in Control, and
(iv) Guarantor is the surviving entity.


 


4.2           Indebtedness.  Create, incur, assume, guarantee or be or
remain liable with respect to any Indebtedness, or permit any Parent Subsidiary
so to do, other than Permitted Indebtedness, or prepay any Indebtedness or take
any actions which impose on Guarantor an obligation to prepay any Indebtedness,
except Indebtedness to Lender.


 


4.3           Encumbrances.  Create, incur, assume or allow any Lien with
respect to any Charged Collateral except for Permitted Liens, or covenant to
any other Person that Guarantor in the future will refrain from creating,
incurring, assuming or allowing any Lien with respect to any Charged
Collateral.


 


4.4           Distributions.  Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or purchase
of any capital stock, except that Guarantor may (i) repurchase the stock of
former employees pursuant to stock repurchase agreements as long as an Event of
Default does not exist prior to such repurchase or would not exist after giving
effect to such repurchase, and (ii) repurchase the stock of former employees
pursuant to stock repurchase agreements by the cancellation of indebtedness
owed by such former employees to Guarantor regardless of whether an Event of
Default exists.


 


4.5           Investments.  Directly or indirectly acquire or own, or
make any Investment in or to any Person, or permit any Parent Subsidiaries so
to do, other than Permitted Investments or as required under the Guaranty, or
maintain or invest any of its property with a Person other than Lender or
Lender’s Affiliates or permit any Parent Subsidiary to do so unless such Person
has entered into a control agreement with Lender, in form and substance
satisfactory to Lender, or suffer or permit any Parent Subsidiary to be a party
to, or be bound by, an agreement that restricts such Parent Subsidiary from
paying dividends or otherwise distributing property to Guarantor.


 


5.     Further Assurances. At any time and from time to time,
upon the written request of the Lender and at the sole expense of Guarantor,
Guarantor shall promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as Lender may reasonably
deem desirable to obtain the full benefits of this Agreement and of the rights
and powers herein granted, including, without limitation, (a) to secure
all consents and approvals necessary or appropriate for the grant of security
interests to the Lender on any Charged Collateral, (b) filing any forms of
documentation with the Israeli Registrar of Companies and/or the Registrar of
Pledges, as applicable and as necessary with respect to the security interests
granted hereby and (c) transferring Charged Collateral to Lender’s
possession (if a security interest in such Charged Property can be perfected by
possession). Guarantor also hereby authorizes Lender to file any such documents
without the signature of Guarantor.  If,
after an Event of Default, any amount payable under or in connection with any
of the Charged Collateral is or shall become evidenced by any Instrument, such
Instrument, other than checks and notes received in the ordinary course of
business, shall be duly endorsed in a manner satisfactory to Lender and
delivered to Lender promptly upon Guarantor’s receipt thereof.


 


6.     Events of Default. 
The occurrence of any Event of Default under the Loan Agreement, the
failure by Guarantor to perform any of the Guarantor Obligations, the breach of
any representation under this Agreement or the Guaranty and the failure to
perform any covenant under this Agreement, shall each constitute an “Event of 


 





















 


Default” under this Agreement. For the avoidance of doubt, a “Material
Adverse Change” as defined in Section 8.3 of the Loan Agreement shall relate to
the Guarantor and the Parent Subsidiaries as a whole.


 


7.     Remedies on Default.  


 


(a)    Upon the occurrence of an Event of Default,
Lenders shall have the right to notify Guarantor of the immediate
crystallization of each of the Fixed IP Charge, Fixed Bank Account Charge and
Floating Charge, over the Charged Collateral or any part thereof and shall be
entitled to adopt all the measures it deems fit in order to recover the funds
covered by the Guarantor’s Obligations.


 


(b)     Upon the occurrence of an Event of Default,
the Lender may, as attorney-in-fact of Guarantor  (and, for the purpose hereof, Guarantor
irrevocably appoints Lender to be its attorney-in-fact),  sell all or any of the Charged Collateral by
public auction or otherwise, by itself or through others, for cash or
installments thereof or otherwise, at a price and on such terms as Lender in
its sole and absolute discretion shall deem fit, and likewise Lender may of its
own accord or through the court or an execution office, realize the Charged
Collateral, inter alia, by appointing a receiver or receiver and manager on
behalf of Lender, who shall be empowered, inter alia:


 


(i)            to call in all or
any part of the Charged Collateral;


 


(ii)           to carry on or to
participate in the management of the business of Guarantor as it sees fit;


 


(iii)          to sell or agree to
the sale of the Charged Collateral, in whole or in part, to dispose the same or
agree to dispose of same in such other manner on such terms as it deems fit;
and


 


(iv)          to make such other
arrangement regarding the Charged Collateral or any part thereof as it deems
fit.


 


(c)    All income to be received by the receiver or
the manager from the Charged Collateral as well as any proceeds to be received
by Lender and/or by the receiver or manager from the sale of the Charged
Collateral or any part thereof shall be applied in the following order:


 


(i)            Firstly, to the
discharge of all the costs and expenses incurred and which may be incurred in
connection with the collection of the Guarantor Obligations, including the
costs and remuneration of the receiver or the manager in such amount as shall
be prescribed by the Lender or approved by the court or the execution office
and


 


(ii)           Secondly, to the
discharge of the Guarantor Obligations becoming due to Lender on account of
interest, damages, commissions, fees, charges and expenses due and becoming due
to Lender pursuant to this Agreement.


 


Should Lender decide to realize securities, bills and
other negotiable instruments, then three (3) Business Days’ advance notice
regarding the steps that Lender intends to take shall be deemed to be
reasonable advance notice for the purpose of Section 19(b) of the Pledges Law,
5727-1967 or any other statutory provisions in substitution therefor.


 


8.     Power of Attorney. Guarantor hereby appoints Lender, as
its attorney-in-fact (i) to prepare, sign and file or record, for Guarantor in
Guarantor’s name, any documents, applications for registration and like papers
and to take any other action deemed by Lender necessary solely in order to
perfect the security interest of the Lender hereunder and (ii) after the
occurrence and during the continuance of an Event of Default,  to collect any of the Charged Collateral, and
to perform any obligations of Guarantor hereunder, at Guarantor’s expense, but
without obligation to do so. 


 





















 


9.     Remedies Cumulative. 
Lender’s rights and remedies under this Agreement, the Loan Agreement,
Loan Documents, the Guaranty, the Share Pledge Agreement and all other
agreements shall be cumulative.  Lender
shall have all other rights and remedies not inconsistent herewith as provided
under law, or in equity.  No exercise by
Lender of one right or remedy shall be deemed an election, and no waiver by
Lender of any Event of Default on Guarantor shall be deemed a continuing
waiver.  No delay by Lender shall
constitute a waiver, election, or acquiescence by it.  No waiver by Lender shall be effective unless
made in a written document signed by Lender and then shall be effective only in
the specific instance and for the specific purpose for which it was given. 


 


10.   Amendment of Loan Agreement.  Guarantor authorizes Lender, without notice
or demand and without affecting its liability hereunder, from time to time to
(a) renew, extend, or otherwise change the terms of the Loan Agreement, or
any part thereof; (b) take and hold security for the payment of the Loan
Agreement, and exchange, enforce, waive and release any such security; and
(c) apply such security and direct the order or manner of sale thereof as
Lender in its sole discretion may determine.


 


11.   Insolvency.  If either Guarantor becomes insolvent or if
adjudicated bankrupt or files a petition for liquidation, reorganization,
arrangement, composition or similar relief under any present or future
provision of the Israeli Companies Ordinance (New Version), 1983 or the Israeli
Companies Law, 1999 or pursuant to any similar Israeli law or foreign law of
another jurisdiction, as applicable, or if such a petition is filed against
Guarantor and such petition is not dismissed within 90 days from the date of
its filing, and in any such proceeding some or all of any indebtedness or
obligations of the Guarantor under the Guaranty are terminated or rejected or
any obligation of Guarantor is modified or abrogated, or if Guarantor’s
obligations are otherwise avoided for insolvency, bankruptcy or any similar
reason, Guarantor agrees that Guarantor’s liability hereunder shall not thereby
be affected or modified and such liability shall continue in full force and
effect as if no such action or proceeding had occurred.  This Agreement shall continue to be effective
or be reinstated, as the case may be, if any payment must be returned by Lender
upon the insolvency, bankrupt­cy or reorganization of Guarantor, any other
person, or otherwise, as though such payment had not been made.


 


12.   Notices.  Any notice given by any party hereunder shall
be in writing and personally delivered, sent by overnight courier, or sent by
facsimile, or other authenticated message, charges prepaid, to the other party’s
or parties’ addresses shown on the signature page of this Agreement.  Each party may change the address or facsimile
number to which notices, requests and other communications are to be sent by
giving written notice of such change to each other party.  Notice given by hand delivery shall be deemed
received on the date delivered; if sent by overnight courier, on the next
Business Day after delivery to the courier service; and if by facsimile, on the
date of transmission. 


 


13.   Choice of Law and Venue. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Israel, without regard to principles of conflicts of law.  Each of Guarantor and Lender hereby submits
to the exclusive jurisdiction of the courts located in Tel Aviv and no other
court of law in any other district shall have jurisdiction.


 


14.   General Provisions.


 


(a)    Guarantor shall cooperate with Lender and
execute all documents as may be reasonably necessary to register the charges
created hereunder with the Israeli Registrar of Companies and/or Registrar of
Pledges and shall bear all stamp taxes with respect to such registrations.


 


(b)     The amounts being secured hereunder are
unlimited in amount and the charges created herein are secured in accordance
with terms of the Guaranty and with the Loan Agreement. The charges created
hereunder shall be cancelled, and Lender shall promptly execute and provide
Guarantor with all documents necessary to release the charges immediately upon
the cessation of all Guarantor Obligations and upon the indefeasible payment in full of the Obligations and satisfaction of all
Borrower’s obligations under the Loan Agreement and other Loan Documents, and
if Lender has no further obligations under its Commitments.


 


(c)     Successors and Assigns.  This Agreement shall bind and inure to the
benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights
hereunder may be assigned by Guarantor without Lender’s prior written consent.


 





















 


Lender shall have the right without the consent of or notice to
Guarantor to assign, sell, transfer, negotiate, or grant participation in all
or any part of, or any interest in, Lender’s obligations, rights and benefits
hereunder.


 


(d)    Indemnification.  Guarantor shall defend, indemnify and hold
harmless Lender and each of their respective officers, employees, and agents
against:  (a) all obligations,
demands, claims, and liabilities claimed or asserted by any other party in
connection with Guarantor’s failure to comply with the terms of this Agreement;
and (b) all losses or expenses in any way suffered, incurred, or paid by
Lender as a result of or in any way arising out of, following, or consequential
to Guarantor’s failure to comply with the terms of this Agreement (including
without limitation reasonable attorneys fees and expenses), except for losses
caused by Lender’s gross negligence or willful misconduct.


 


(e)    Time of Essence.  Time is of the essence for the performance of
all obligations set forth in this Agreement.


 


(f)     Severability of Provisions.  Each provision of this Agreement shall be severable
from every other provision of this Agreement for the purpose of determining the
legal enforceability of any specific provision.


 


(g)    Entire Agreement;
Amendments in Writing; Integration. 
This Agreement cannot be amended or terminated orally.  This Agreement, the Loan Agreement, the
Guarantee Agreement and the Share Pledge Agreement including all exhibits,
schedules and annexes thereto, constitute the full and entire understanding and
agreement between the parties with regard to the subject matters hereof and
thereof.  The preamble and exhibits
hereto constitute an integral part hereof.


 


(h)    Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.


 


(i)     Survival.  All covenants, representations and warranties
made in this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding, any Guarantor Obligations remain outstanding,
or Lender has any Commitment to Borrower. 
The obligations of Guarantor to indemnify Lender with respect to the
expenses, damages, losses, costs and liabilities described in Section
14(d) shall survive until all applicable statute of limitations periods
with respect to actions that may be brought against Lender have run.


 





















 


IN
WITNESS WHEREOF, the parties have executed this Agreement on
the date set forth above.


 


“Guarantor”


 


	
  RADVIEW SOFTWARE LTD.

  
	
   

  
	
  By:

  	
  /s/ CHRISTOPHER DINEEN

  	
   

  
	
   

  
	
  Name: 

  	
  Christopher Dineen

  	
   

  
	
  Title: 

  	
  Chief Financial Officer

  	
   

  
	
   

  
	
  Address for Notices:

  
	
  7 New England Executive Park

  	
   

  
	
  Burlington, MA 01803

  	
   

  
	
   

  	
   

  
	
  Facsimile: (781) 238-8875

  
						



 


With a copy to:


Fulbright & Jaworski L.L.P.


666 Fifth Avenue


New York, NY  10103


Attention: Neil Gold, Esq.


Facsimile: (212) 318-3400


 


 


“Lender”


 


 


COMERICA BANK


 


	
   

  	
   

  
	
  By:

  	
  /s/ PAULA J. HOWELL

  	
   

  	
   

  
	
  Name:

  	
  Paula J. Howell

  	
   

  	
   

  
	
  Title:

  	
  SVP

  	
   

  	
   

  
						



 


Address for Notices:


2321 Rosencrans Ave., Suite 5000


El Segundo, CA 90245


Attn: Manager


Facsimile: (310) 297-2290


 


With a copy to:


100 Federal Street, 28th Floor


Boston, MA 02110


Attn: Chris Lloyd


Facsimile: (617) 757-6310


 


With an additional copy to:


Yigal Arnon & Co.


One Azrieli Center


46th Floor - Round Tower


Tel-Aviv, Israel 67021


Attn: Simon Weintraub


Facsimile: +972-3-608-7714


 


 





















 


EXHIBIT
A


TO
THIRD PARTY SECURITY AGREEMENT


 


Form
of Guaranty Agreement


 





















 


EXHIBIT
B

TO THIRD PARTY
SECURITY AGREEMENT


 


INTELLECTUAL
PROPERTY


 


Copyrights


 


	
  Description

  	
   

  	
  Jurisdiction

  	
   

  	
  Registration

  Number

  	
   

  	
  Registration
  

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TestView

  	
   

  	
  U.S. Copyright
  Office

  	
   

  	
  Tx4221599

  	
   

  	
  11/22/95

  



 


Patents


 


	
  Description

  	
   

  	
  Jurisdiction

  	
   

  	
  Registration/
  

  Application 

  Number

  	
   

  	
  Registration
  

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Method
  of load testing web applications based on performance goal

  	
   

  	
  U.S. Patent
  & Trademark Office

  	
   

  	
  6,434,513

  	
   

  	
  08/13/02

  



 


Trademarks


 


	
  Description

  	
   

  	
  Jurisdiction

  	
   

  	
  Registration/
  

  Application 

  Number

  	
   

  	
  Registration/
  

  Application 

  Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Testview

  	
   

  	
  U.S. Patent
  & 

  Trademark Office

  	
   

  	
  76/527,452

  	
   

  	
  07/03/03

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Radview

  	
   

  	
  U.S. Patent
  & 

  Trademark Office

  	
   

  	
  2,479,424

  	
   

  	
  08/21/01

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Webload (stylized
  letters)

  	
   

  	
  U.S. Patent
  & 

  Trademark Office

  	
   

  	
  2,104,400

  	
   

  	
  10/07/97

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Testview

  	
   

  	
  European
  Community 

  Trademark Office
 (OHIM)

  	
   

  	
  3597218

  	
   

  	
  01/02/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Testview

  	
   

  	
  Israel

  	
   

  	
  169409

  	
   

  	
  01/01/2004

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Testview

  	
   

  	
  Japan

  	
   

  	
  4775379

  	
   

  	
  06/04/2004

  



 


Domain
Names


 


	
  radview.com

  	
   

  	
  radview.net

  	
   

  	
  radview.us

  	
   

  	
  radview.org

  
	
  webload.org

  	
   

  	
  webloadtested.com

  	
   

  	
  netizenbanking.com

  	
   

  	
  radview.co.il

  



 


 





















 


EXHIBIT
C


TO
THIRD PARTY SECURITY AGREEMENT


 


COLLATERAL
SUBJECT TO THE FLOATING CHARGE


 


The Floating
Collateral includes all Guarantor’s right, title and interest in all its present and future tangible and
intangible assets and rights of any kind whether contingent or absolute,
relating to all of Guarantor’s right, title and interest in and to the
following property, whether now owned or hereafter acquired and wherever
located: (a) all Intellectual Property Collateral, (b) all Bank Hapoalim
Collateral and (c) all Collateral (as defined in the Share Pledge Agreement).


 


For the purposes of this Exhibit C, the following definitions
shall apply:


 


“Intellectual
Property Collateral” means
all of Guarantor’s right, title, and interest in and to the following:


 


(a)                                        Copyrights,
Trademarks and Patents;


 


(b)                                       Any
and all trade secrets, and any and all intellectual property rights in computer
software and computer software products now or hereafter existing, created,
acquired or held;


 


(c)                                        Any
and all design rights which may be available to Guarantor now or hereafter
existing, created, acquired or held;


 


(d)                                       Any
and all claims for damages by way of past, present and future infringement of
any of the rights included above, with the right, but not the obligation, to
sue for and collect such damages for said use or infringement of the
intellectual property rights identified above;


 


(e)                                        All
licenses or other rights to use any of the Copyrights, Patents or Trademarks,
and all license fees and royalties arising from such use to the extent permitted
by such license or rights;


 


(f)                                          All
amendments, renewals and extensions of any of the Copyrights, Trademarks or
Patents; and


 


(g)                                       All
proceeds and products of the foregoing, including without limitation all
payments under insurance or any indemnity or warranty payable in respect of any
of the foregoing.


 


“Copyrights” means
any and all copyright rights, copyright applications, copyright registrations
and like protections in each work or authorship and derivative work thereof,
whether published or unpublished and whether or not the same also constitutes a
trade secret, now or hereafter existing, created, acquired or held.


 


 


“Patents” means
all patents, patent applications and like protections including without
limitation improvements, divisions, continuations, renewals, reissues,
extensions and continuations-in-part of the same.


 


“Trademarks” means
any trademark and servicemark rights, whether registered or not, applications
to register and registrations of the same and like protections, and the entire
goodwill of the business of Guarantor connected with and symbolized by such
trademarks.


 





















 


EXHIBIT
D


TO
THIRD PARTY SECURITY AGREEMENT


 


Form(s)
for Israeli Registrar of Companies