Exhibit
10.29.1


ANNEX B


Export-Import Bank of the United
States


Working
Capital Guarantee Program


Borrower Agreement


THIS BORROWER AGREEMENT (this “Agreement”) is made and
entered into by the entity identified as Borrower on the signature page hereof
(“Borrower”) in favor of the Export-Import Bank of the United States (“Ex-Im
Bank”) and the institution identified as Lender on the signature page hereof
(“Lender”).


RECITALS


Borrower has requested that Lender establish a Loan
Facility in favor of Borrower for the purposes of providing Borrower with
pre-export working capital to finance the manufacture, production or purchase
and subsequent export sale of Items.


It is a condition to the establishment of such Loan
Facility that Ex-Im Bank guarantee the payment of ninety percent (90%) of
certain credit accommodations subject to the terms and conditions of a Master
Guarantee Agreement, the Loan Authorization Agreement, and to the extent
applicable, the Delegated Authority Letter Agreement.


Borrower is executing this Agreement for the benefit
of Lender and Ex-Im Bank in consideration for and as a condition to Lender’s
establishing the Loan Facility and Ex-Im Bank’s agreement to guarantee such
Loan Facility pursuant to the Master Guarantee Agreement.


NOW, THEREFORE, Borrower hereby agrees as follows:


ARTICLE I

DEFINITIONS


1.01 Definition of Terms.  As used in this Agreement, including the
Recitals to this Agreement and the Loan Authorization Agreement, the following
terms shall have the following meanings:


“Accounts Receivable” shall mean all of Borrower’s now
owned or hereafter acquired (a) “accounts” (as such term is defined in the
UCC), other receivables, book debts and other forms of obligations, whether
arising out of goods sold or services rendered or from any other transaction;
(b) rights in, to and under all purchase orders or receipts for goods or
services; (c) rights to any goods represented or purported to be represented by
any of the foregoing (including unpaid sellers’ rights of rescission, replevin,
reclamation and stoppage in transit and rights to returned, reclaimed or
repossessed goods); (d) moneys due or to become due to such Borrower under all
purchase orders and contracts for the sale of goods or the performance of
services or both by 


 


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Borrower (whether or not yet earned by performance on the part of
Borrower), including the proceeds of the foregoing; (e) any notes, drafts,
letters of credit, insurance proceeds or other instruments, documents and writings
evidencing or supporting the foregoing; and (f) all collateral security
and guarantees of any kind given by any other Person with respect to any of the
foregoing.


“Advance Rate” shall mean the rate specified in
Section 5(C) of the Loan Authorization Agreement for each category of
Collateral.


“Business Day” shall mean any day on which the Federal
Reserve Bank of New York is open for business.


“Buyer” shall mean a Person that has entered into one
or more Export Orders with Borrower.


“Collateral” shall mean all property and interest in
property in or upon which Lender has been granted a Lien as security for the
payment of all the Loan Facility Obligations including the Collateral
identified in Section 6 of the Loan Authorization Agreement and all products and
proceeds (cash and non–cash) thereof.


“Commercial Letters of Credit” shall mean those
letters of credit subject to the UCP payable in Dollars and issued or caused to
be issued by Lender on behalf of Borrower under a Loan Facility for the benefit
of a supplier(s) of Borrower in connection with Borrower’s purchase of goods or
services from the supplier in support of the export of the Items.


“Country Limitation Schedule” shall mean the schedule
published from time to time by Ex-Im Bank and provided to Borrower by Lender
which sets forth on a country by country basis whether and under what
conditions Ex-Im Bank will provide coverage for the financing of export
transactions to countries listed therein.


“Credit Accommodation Amount” shall mean, the sum of
(a) the aggregate outstanding amount of Disbursements and (b) the aggregate
outstanding face amount of Letter of Credit Obligations.


“Credit Accommodations” shall mean, collectively,
Disbursements and Letter of Credit Obligations.


“Debarment Regulations” shall mean, collectively, (a)
the Governmentwide Debarment and Suspension (Nonprocurement) regulations
(Common Rule), 53 Fed. Reg. 19204 (May 26, 1988), (b) Subpart 9.4 (Debarment,
Suspension, and Ineligibility) of the Federal Acquisition Regulations, 48 C.F.R.
9.400-9.409 and (c) the revised Governmentwide Debarment and Suspension
(Nonprocurement) regulations (Common Rule), 60 Fed. Reg. 33037 (June 26, 1995).


“Delegated Authority Letter Agreement” shall mean the
Delegated Authority Letter Agreement, if any, between Ex-Im Bank and Lender.


“Disbursement” shall mean, collectively, (a) an
advance of a working capital loan from Lender to Borrower under the Loan
Facility, and (b) an advance to fund a drawing under a Letter 


 


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of Credit issued or caused to be issued by Lender for the account of
Borrower under the Loan Facility.


“Dollars” or “$” shall mean the lawful currency of the
United States.


“Effective Date” shall mean the date on which (a) the
Loan Documents are executed by Lender and Borrower or the date, if later, on
which agreements are executed by Lender and Borrower adding the Loan Facility
to an existing working capital loan arrangement between Lender and Borrower and
(b) all of the conditions to the making of the initial Credit Accommodations
under the Loan Documents or any amendments thereto have been satisfied.


“Eligible Export-Related Accounts Receivable” shall
mean an Export-Related Account Receivable which is acceptable to Lender and
which is deemed to be eligible pursuant to the Loan Documents, but in no event
shall Eligible Export-Related Accounts Receivable include any Account
Receivable:


(a)           that
does not arise from the sale of Items in the ordinary course of Borrower’s
business;


(b)           that
is not subject to a valid, perfected first priority Lien in favor of Lender;


(c)           as
to which any covenant, representation or warranty contained in the Loan
Documents with respect to such Account Receivable has been breached;


(d)           that
is not owned by Borrower or is subject to any right, claim or interest of
another Person other than the Lien in favor of Lender;


(e)           with
respect to which an invoice has not been sent;


(f)            that
arises from the sale of defense articles or defense services;


(g)           that
is due and payable from a Buyer located in a country with which Ex-Im Bank is
prohibited from doing business as designated in the Country Limitation
Schedule;


(h)           that
does not comply with the requirements of the Country Limitation Schedule;


(i)            that
is due and payable more than one hundred eighty (180) days from the date of the
invoice;


(j)            that
is not paid within sixty (60) calendar days from its original due date, unless
it is insured through Ex-Im Bank export credit insurance for comprehensive
commercial and political risk, or through Ex-Im Bank approved private insurers
for comparable coverage, in which case it is not paid within ninety (90)
calendar days from its due date;


(k)           that
arises from a sale of goods to or performance of services for an employee of
Borrower, a stockholder of Borrower, a subsidiary of Borrower, a Person with a
controlling interest in Borrower or a Person which shares common controlling
ownership with Borrower;


 


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(l)            that
is backed by a letter of credit unless the Items covered by the subject letter
of credit have been shipped;


(m)          that
Lender or Ex-Im Bank, in its reasonable judgment, deems uncollectible for any
reason;


(n)           that
is due and payable in a currency other than Dollars, except as may be approved
in writing by Ex-Im Bank;


(o)           that
is due and payable from a military Buyer, except as may be approved in writing
by Ex-Im Bank;


(p)           that
does not comply with the terms of sale set forth in Section 7 of the Loan
Authorization Agreement;


(q)           that
is due and payable from a Buyer who (i) applies for, suffers, or consents to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property
or calls a meeting of its creditors, (ii) admits in writing its inability, or
is generally unable, to pay its debts as they become due or ceases operations
of its present business, (iii) makes a general assignment for the benefit of
creditors, (iv) commences a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (v) is adjudicated as bankrupt
or insolvent, (vi) files a petition seeking to take advantage of any other law
providing for the relief of debtors, (vii) acquiesces to, or fails to have
dismissed, any petition which is filed against it in any involuntary case under
such bankruptcy laws, or (viii) takes any action for the purpose of effecting
any of the foregoing;


(r)            that
arises from a bill-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment or any other repurchase or return basis or is evidenced by chattel
paper;


(s)           for
which the Items giving rise to such Account Receivable have not been shipped
and delivered to and accepted by the Buyer or the services giving rise to such
Account Receivable have not been performed by Borrower and accepted by the
Buyer or the Account Receivable otherwise does not represent a final sale;


(t)            that
is subject to any offset, deduction, defense, dispute, or counterclaim or the
Buyer is also a creditor or supplier of Borrower or the Account Receivable is
contingent in any respect or for any reason;


(u)           for
which Borrower has made any agreement with the Buyer for any deduction
therefrom, except for discounts or allowances made in the ordinary course of
business for prompt payment, all of which discounts or allowances are reflected
in the calculation of the face value of each respective invoice related
thereto; or


(v)           for
which any of the Items giving rise to such Account Receivable have been returned,
rejected or repossessed.


 


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“Eligible Export-Related Inventory” shall mean
Export-Related Inventory which is acceptable to Lender and which is deemed to
be eligible pursuant to the Loan Documents, but in no event shall Eligible
Export-Related Inventory include any Inventory:


(a)           that
is not subject to a valid, perfected first priority Lien in favor of Lender;


(b)           that
is located at an address that has not been disclosed to Lender in writing;


(c)           that
is placed by Borrower on consignment or held by Borrower on consignment from
another Person;


(d)           that
is in the possession of a processor or bailee, or located on premises leased or
subleased to Borrower, or on premises subject to a mortgage in favor of a Person
other than Lender, unless such processor or bailee or mortgagee or the lessor
or sublessor of such premises, as the case may be, has executed and delivered
all documentation which Lender shall require to evidence the subordination or
other limitation or extinguishment of such Person’s rights with respect to such
Inventory and Lender’s right to gain access thereto;


(e)           that
is produced in violation of the Fair Labor Standards Act or subject to the “hot
goods” provisions contained in 29 US.C.§215 or any successor statute or
section;


(f)            as
to which any covenant, representation or warranty with respect to such
Inventory contained in the Loan Documents has been breached;


(g)           that
is not located in the United States;


(h)           that
is demonstration Inventory;


(i)            that
consists of proprietary software (i.e. software designed solely for Borrower’s
internal use and not intended for resale);


(j)            that
is damaged, obsolete, returned, defective, recalled or unfit for further
processing;


(k)           that
has been previously exported from the United States;


(l)            that
constitutes defense articles or defense services;


(m)          that
is to be incorporated into Items destined for shipment to a country as to which
Ex-Im Bank is prohibited from doing business as designated in the Country
Limitation Schedule;


(n)           that
is to be incorporated into Items destined for shipment to a Buyer located in a
country in which Ex-Im Bank coverage is not available for commercial reasons as
designated in the Country Limitation Schedule, unless and only to the extent
that such Items are to be sold to such country on terms of a letter of credit
confirmed by a bank acceptable to Ex-Im Bank; or


(o)           that
is to be incorporated into Items whose sale would result in an Account
Receivable which would not be an Eligible Export-Related Account Receivable.


 


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“Eligible Person” shall mean a sole proprietorship,
partnership, limited liability partnership, corporation or limited liability
company which (a) is domiciled, organized, or formed, as the case may be, in
the United States; (b) is in good standing in the state of its formation or
otherwise authorized to conduct business in the United States; (c) is not
currently suspended or debarred from doing business with the United States
government or any instrumentality, division, agency or department thereof; (d)
exports or plans to export Items; (e) operates and has operated as a going
concern for at least one (1) year; (f) has a positive tangible net worth
determined in accordance with GAAP; and (g) has revenue generating operations
relating to its core business activities for at least one year.


“ERISA” shall mean the Employee Retirement Income
Security Act of 1974 and the rules and regulations promulgated thereunder.


“Export Order” shall mean a written export order or
contract for the purchase by the Buyer from Borrower of any of the Items.


“Export-Related Accounts Receivable” shall mean those
Accounts Receivable arising from the sale of Items which are due and payable to
Borrower in the United States.


“Export-Related Accounts Receivable Value” shall mean,
at the date of determination thereof, the aggregate face amount of Eligible
Export-Related Accounts Receivable less taxes, discounts, credits, allowances
and Retainages, except to the extent otherwise permitted by Ex-Im Bank in
writing.


“Export-Related Borrowing Base” shall mean, at the
date of determination thereof, the sum of (a) the Export-Related Inventory
Value multiplied by the Advance Rate applicable to Export-Related Inventory set
forth in Section 5(C)(1) of the Loan Authorization Agreement, (b) the
Export-Related Accounts Receivable Value multiplied by the Advance Rate
applicable to Export-Related Accounts Receivable set forth in Section 5(C)(2)
of the Loan Authorization Agreement, (c) if permitted by Ex-Im Bank in writing,
the Retainage Value multiplied by the Retainage Advance Rate set forth in
Section 5(C)(3) of the Loan Authorization Agreement and (d) the Other Assets
Value multiplied by the Advance Rate applicable to Other Assets set forth in
Section 5(C)(4) of the Loan Authorization Agreement.


“Export-Related Borrowing Base Certificate” shall mean
a certificate in the form provided or approved by Lender, executed by Borrower
and delivered to Lender pursuant to the Loan Documents detailing the
Export-Related Borrowing Base supporting the Credit Accommodations which
reflects, to the extent included in the Export-Related Borrowing Base,
Export-Related Accounts Receivable, Eligible Export-Related Accounts
Receivable, Export-Related Inventory and Eligible Export-Related Inventory
balances that have been reconciled with Borrower’s general ledger, Accounts
Receivable aging report and Inventory schedule.


“Export-Related General Intangibles” shall mean those
General Intangibles necessary or desirable to or for the disposition of
Export-Related Inventory.


“Export-Related Inventory” shall mean the Inventory of
Borrower located in the United States that has been purchased, manufactured or
otherwise acquired by Borrower for resale pursuant to Export Orders.


 


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“Export-Related Inventory Value” shall mean, at the
date of determination thereof, the lower of cost or market value of Eligible
Export-Related Inventory of Borrower as determined in accordance with GAAP.


“Final Disbursement Date” shall mean, unless subject
to an extension of such date agreed to by Ex-Im Bank, the last date on which
Lender may make a Disbursement set forth in Section 10 of the Loan
Authorization Agreement or, if such date is not a Business Day, the next
succeeding Business Day; provided, however, to the extent that
Lender has not received cash collateral or an indemnity with respect to Letter
of Credit Obligations outstanding on the Final Disbursement Date, the Final Disbursement
Date with respect to an advance to fund a drawing under a Letter of Credit
shall be no later than thirty (30) Business Days after the expiry date of the
Letter of Credit related thereto.


“GAAP” shall mean the generally accepted accounting
principles issued by the American Institute of Certified Public Accountants as
in effect from time to time.


“General Intangibles” shall mean all intellectual
property and other “general intangibles” (as such term is defined in the UCC)
necessary or desirable to or for the disposition of Inventory.


“Guarantor” shall mean each Person, if any, identified
in Section 3 of the Loan Authorization Agreement who shall guarantee (jointly
and severally if more than one) the payment and performance of all or a portion
of the Loan Facility Obligations.


“Guaranty Agreement” shall mean a valid and
enforceable agreement of guaranty executed by each Guarantor in favor of
Lender.


“Inventory” shall mean all “inventory” (as such term
is defined in the UCC), now or hereafter owned or acquired by Borrower,
wherever located, including all inventory, merchandise, goods and other
personal property which are held by or on behalf of Borrower for sale or lease
or are furnished or are to be furnished under a contract of service or which
constitute raw materials, work in process or materials used or consumed or to
be used or consumed in Borrower’s business or in the processing, production,
packaging, promotion, delivery or shipping of the same, including other
supplies.


“ISP” shall mean the International Standby
Practices-ISP98, International Chamber of Commerce Publication No. 590 and any
amendments and revisions thereof.


“Issuing Bank” shall mean the bank that issues a
Letter of Credit, which bank is Lender itself or a bank that Lender has caused
to issue a Letter of Credit by way of guarantee.


“Items” shall mean the finished goods or services
which are intended for export from the United States, as specified in Section
4(A) of the Loan Authorization Agreement.


“Letter of Credit” shall mean a Commercial Letter of
Credit or a Standby Letter of Credit.


“Letter of Credit Obligations” shall mean all
outstanding obligations incurred by Lender, whether direct or indirect,
contingent or otherwise, due or not due, in connection with the issuance or
guarantee by Lender or the Issuing Bank of Letters of Credit.


 


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“Lien” shall mean any mortgage, security deed or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge,
claim, security interest, security title, easement or encumbrance, or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including any lease or title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of, or agreement to give, any financing
statement perfecting a security interest under the UCC or comparable law of any
jurisdiction) by which property is encumbered or otherwise charged.


“Loan Agreement” shall mean a valid and enforceable
agreement between Lender and Borrower setting forth the terms and conditions of
the Loan Facility.


“Loan Authorization Agreement” shall mean the Loan
Authorization Agreement entered into between Lender and Ex-Im Bank or the Loan
Authorization Notice setting forth certain terms and conditions of the Loan
Facility, a copy of which is attached hereto as Annex A.


“Loan Authorization Notice” shall mean the Loan
Authorization Notice executed by Lender and delivered to Ex-Im Bank in
accordance with the Delegated Authority Letter Agreement setting forth the
terms and conditions of each Loan Facility.


“Loan Documents” shall mean the Loan Authorization
Agreement, the Loan Agreement, this Agreement, each promissory note (if
applicable), each Guaranty Agreement, and all other instruments, agreements and
documents now or hereafter executed by Borrower or any Guarantor evidencing,
securing, guaranteeing or otherwise relating to the Loan Facility or any Credit
Accommodations made thereunder.


“Loan Facility” shall mean the Revolving Loan
Facility, the Transaction Specific Loan Facility or the Transaction Specific
Revolving Loan Facility established by Lender in favor of Borrower under the
Loan Documents.


“Loan Facility Obligations” shall mean all loans,
advances, debts, expenses, fees, liabilities, and obligations for the
performance of covenants, tasks or duties or for payment of monetary amounts
(whether or not such performance is then required or contingent, or amounts are
liquidated or determinable) owing by Borrower to Lender, of any kind or nature,
present or future, arising in connection with the Loan Facility.


“Loan Facility Term” shall mean the number of months
from the Effective Date to the Final Disbursement Date as originally set forth
in the Loan Authorization Agreement.


“Master Guarantee Agreement” shall mean the Master
Guarantee Agreement between Ex-Im Bank and Lender, as amended, modified,
supplemented and restated from time to time.


“Material Adverse Effect” shall mean a material
adverse effect on (a) the business, assets, operations, prospects or financial
or other condition of Borrower or any Guarantor, (b) Borrower’s ability to pay
or perform the Loan Facility Obligations in accordance with the terms thereof,
(c) the Collateral or Lender’s Liens on the Collateral or the priority of such
Lien or (d) Lender’s rights and remedies under the Loan Documents.


 


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“Maximum Amount” shall mean the maximum principal
balance of Credit Accommodations that may be outstanding at any time under the
Loan Facility specified in Section 5(A) of the Loan Authorization Agreement.


“Other Assets” shall mean the Collateral, if any,
described in Section 5(C)(4) of the Loan Authorization Agreement.


“Other Assets Value” shall mean, at the date of
determination thereof, the value of the Other Assets as determined in
accordance with GAAP.


“Permitted Liens” shall mean (a) Liens for taxes,
assessments or other governmental charges or levies not delinquent, or, being
contested in good faith and by appropriate proceedings and with respect to
which proper reserves have been taken by Borrower; provided, that,
the Lien shall have no effect on the priority of the Liens in favor of Lender
or the value of the assets in which Lender has such a Lien and a stay of
enforcement of any such Lien shall be in effect; (b) deposits or pledges
securing obligations under worker’s compensation, unemployment insurance,
social security or public liability laws or similar legislation; (c) deposits
or pledges securing bids, tenders, contracts (other than contracts for the
payment of money), leases, statutory obligations, surety and appeal bonds and
other obligations of like nature arising in the ordinary course of Borrower’s
business; (d) judgment Liens that have been stayed or bonded; (e) mechanics’,
workers’, materialmen’s or other like Liens arising in the ordinary course of
Borrower’s business with respect to obligations which are not due; (f) Liens
placed upon fixed assets hereafter acquired to secure a portion of the purchase
price thereof, provided, that, any such Lien shall not encumber any other
property of Borrower; (g) security interests being terminated concurrently with
the execution of the Loan Documents; (h) Liens in favor of Lender securing the
Loan Facility Obligations; and (i) Liens disclosed in Section 6(D) of the Loan
Authorization Agreement.


“Person” shall mean any individual, sole
proprietorship, partnership, limited liability partnership, joint venture,
trust, unincorporated organization, association, corporation, limited liability
company, institution, public benefit corporation, entity or government (whether
national, federal, provincial, state, county, city, municipal or otherwise,
including any instrumentality, division, agency, body or department thereof),
and shall include such Person’s successors and assigns.


“Principals” shall mean any officer, director, owner,
partner, key employee, or other Person with primary management or supervisory
responsibilities with respect to Borrower or any other Person (whether or not
an employee) who has critical influence on or substantive control over the
transactions covered by this Agreement.


“Retainage” shall mean that portion of the purchase
price of an Export Order that a Buyer is not obligated to pay until the end of
a specified period of time following the satisfactory performance under such
Export Order.


“Retainage Accounts Receivable” shall mean those
portions of Eligible Export-Related Accounts Receivable arising out of a
Retainage.


 


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“Retainage Advance Rate” shall mean the percentage
rate specified in Section 5(C)(3) of the Loan Authorization Agreement as the
Advance Rate for the Retainage Accounts Receivable of Borrower.


“Retainage Value” shall mean, at the date of
determination thereof, the aggregate face amount of Retainage Accounts
Receivable, less taxes, discounts, credits and allowances, except to the extent
otherwise permitted by Ex-Im Bank in writing.


“Revolving Loan Facility” shall mean the credit
facility or portion thereof established by Lender in favor of  Borrower for the purpose of providing
pre-export working capital in the form of loans and/or Letters of Credit to
finance the manufacture, production or purchase and subsequent export sale of
Items pursuant to Loan Documents under which Credit Accommodations may be made
and repaid on a continuous basis based solely on the Export-Related Borrowing
Base during the term of such credit facility.


“Special Conditions” shall mean those conditions, if
any, set forth in Section 13 of the Loan Authorization Agreement.


“Specific Export Orders” shall mean those Export
Orders specified in Section 5(D) of the Loan Authorization Agreement.


“Standby Letter of Credit” shall mean those letters of
credit subject to the ISP or UCP issued or caused to be issued by Lender for
Borrower’s account that can be drawn upon by a Buyer only if Borrower fails to
perform all of its obligations with respect to an Export Order.


“Transaction Specific Loan Facility” shall mean a
credit facility or a portion thereof established by Lender in favor of Borrower
for the purpose of providing pre-export working capital in the form of loans
and/or Letters of Credit to finance the manufacture, production or purchase and
subsequent export sale of Items pursuant to Loan Documents under which Credit
Accommodations are made based solely on the Export-Related Borrowing Base
relating to Specific Export Orders and once such Credit Accommodations are repaid
they may not be reborrowed.


“Transaction Specific Revolving Loan Facility” shall
mean a Revolving Credit Facility established to provide financing of Specific
Export Orders.


“UCC” shall mean the Uniform Commercial Code as the
same may be in effect from time to time in the jurisdiction in which Borrower
or Collateral is located.


“UCP” shall mean the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 and any amendments and revisions thereof.


“U.S.” or “United States” shall mean the United States
of America and its territorial possessions.


 


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“U.S. Content” shall mean with respect to any Item all
the labor, materials and services which are of U.S. origin or manufacture, and
which are incorporated into an Item in the United States.


“Warranty” shall mean Borrower’s guarantee to Buyer
that the Items will function as intended during the warranty period set forth
in the applicable Export Order.


“Warranty Letter of Credit” shall mean a Standby
Letter of Credit which is issued or caused to be issued by Lender to support
the obligations of Borrower with respect to a Warranty or a Standby Letter of
Credit which by its terms becomes a Warranty Letter of Credit.


1.02  Rules of
Construction.  For purposes of this
Agreement, the following additional rules of construction shall apply, unless
specifically indicated to the contrary: (a) wherever from the context it
appears appropriate, each term stated in either the singular or plural shall
include the singular and the plural, and pronouns stated in the masculine,
feminine or neuter gender shall include the masculine, the feminine and the
neuter; (b) the term “or” is not exclusive; (c) the term “including” (or any
form thereof) shall not be limiting or exclusive; (d) all references to
statutes and related regulations shall include any amendments of same and any
successor statutes and regulations; (e) the words “this Agreement”, “herein”,
“hereof”, “hereunder” or other words of similar import refer to this Agreement
as a whole including the schedules, exhibits, and annexes hereto as the same
may be amended, modified or supplemented; (f) all references in this Agreement
to sections, schedules, exhibits, and annexes shall refer to the corresponding
sections, schedules, exhibits, and annexes of or to this Agreement; and (g) all
references to any instruments or agreements, including references to any of the
Loan Documents, or the Delegated Authority Letter Agreement shall include any
and all modifications, amendments and supplements thereto and any and all
extensions or renewals thereof to the extent permitted under this Agreement.


1.03  Incorporation
of Recitals.  The Recitals to this
Agreement are incorporated into and shall constitute a part of this Agreement.


ARTICLE II          

OBLIGATIONS OF BORROWER


Until payment in full of all Loan Facility Obligations
and termination of the Loan Documents, Borrower agrees as follows:


2.01  Use of
Credit Accommodations.  (a) Borrower
shall use Credit Accommodations only for the purpose of enabling Borrower to
finance the cost of manufacturing, producing, purchasing or selling the
Items.  Borrower may not use any of the
Credit Accommodations for the purpose of: (i) servicing or repaying any of
Borrower’s pre-existing or future indebtedness unrelated to the Loan Facility
(unless approved by Ex-Im Bank in writing); (ii) acquiring fixed assets or
capital goods for use in Borrower’s business; (iii) acquiring, equipping or
renting commercial space outside of the United States; (iv) paying the salaries
of non U.S. citizens or non-U.S. permanent residents who are located in offices
outside of the United States; or (v) in connection with a Retainage or Warranty
(unless approved by Ex-Im Bank in writing).


 


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(b)           In addition, no Credit Accommodation
may be used to finance the manufacture, purchase or sale of any of the
following:


                (i)            Items to be sold or resold to a
Buyer located in a country as to which Ex-Im Bank is prohibited from doing
business as designated in the Country Limitation Schedule;


                (ii)           that part of the cost of the Items
which is not U.S. Content unless such part is not greater than fifty percent
(50%) of the cost of the Items and is incorporated into the Items in the United
States;


                (iii)          defense articles or defense services;
or


                (iv)          without Ex-Im Bank’s prior written
consent, any Items to be used in the construction, alteration, operation or
maintenance of nuclear power, enrichment, reprocessing, research or heavy water
production facilities.


2.02  Loan
Documents and Loan Authorization Agreement.  (a)  Each Loan Document
and this Agreement have been duly executed and delivered on behalf of Borrower,
and each such Loan Document and this Agreement are and will continue to be a
legal and valid obligation of Borrower, enforceable against it in accordance
with its terms.


(b)           Borrower shall comply with all of the
terms and conditions of the Loan Documents, this Agreement and the Loan Authorization
Agreement.


2.03  Export-Related
Borrowing Base Certificates and Export Orders.  In order to receive Credit Accommodations under the Loan
Facility, Borrower shall have delivered to Lender an Export-Related Borrowing
Base Certificate as frequently as required by Lender but at least within the
past thirty (30) calendar days and a copy of the Export Order(s) (or, for
Revolving Loan Facilities, if permitted by Lender, a written summary of the
Export Orders) against which Borrower is requesting Credit Accommodations.  If Lender permits summaries of Export
Orders, Borrower shall also deliver promptly to Lender copies of any Export
Orders requested by Lender.  In
addition, so long as there are any Credit Accommodations outstanding under the
Loan Facility, Borrower shall deliver to Lender at least once each month no
later than the twentieth (20th) day of such month or more frequently as required by
the Loan Documents, an Export-Related Borrowing Base Certificate.


2.04  Exclusions
from the Export-Related Borrowing Base. 
In determining the Export-Related Borrowing Base, Borrower shall exclude
therefrom Inventory which is not Eligible Export-Related Inventory and Accounts
Receivable which are not Eligible Export-Related Accounts Receivable.  Borrower shall promptly, but in any event
within five (5) Business Days, notify Lender (a) if any then existing
Export-Related Inventory no longer constitutes Eligible Export-Related
Inventory or (b) of any event or circumstance which to Borrower’s knowledge
would cause Lender to consider any then existing Export-Related Accounts
Receivable as no longer constituting an Eligible Export-Related Accounts
Receivable.


2.05  Financial
Statements.  Borrower shall deliver
to Lender the financial statements required to be delivered by Borrower in
accordance with Section 11 of the Loan Authorization Agreement.


 


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2.06  Schedules,
Reports and Other Statements. 
Borrower shall submit to Lender in writing each month (a) an Inventory
schedule for the preceding month and (b) an Accounts Receivable aging report
for the preceding month detailing the terms of the amounts due from each
Buyer.  Borrower shall also furnish to
Lender promptly upon request such information, reports, contracts, invoices and
other data concerning the Collateral as Lender may from time to time specify.


2.07  Additional
Security or Payment.  (a)  Borrower shall at all times ensure that the
Export-Related Borrowing Base equals or exceeds the Credit Accommodation
Amount.  If informed by Lender or if
Borrower otherwise has actual knowledge that the Export-Related Borrowing Base
is at any time less than the Credit Accommodation Amount, Borrower shall,
within five (5) Business Days, either (i) furnish additional Collateral to Lender,
in form and amount satisfactory to Lender and Ex-Im Bank or (ii) pay to Lender
an amount equal to the difference between the Credit Accommodation Amount and
the Export-Related Borrowing Base.


(b)    For purposes of this Agreement, in
determining the Export-Related Borrowing Base there shall be deducted from the
Export-Related Borrowing Base (i) an amount equal to twenty-five percent (25%)
of the outstanding face amount of Commercial Letters of Credit and Standby
Letters of Credit and (ii) one hundred percent (100%) of the face amount of
Warranty Letters of Credit less the amount of cash collateral held by Lender to
secure Warranty Letters of Credit.


(c)    Unless otherwise approved in writing by
Ex-Im Bank, for Revolving Loan Facilities (other than Transaction Specific
Revolving Loan Facilities), Borrower shall at all times ensure that the
outstanding principal balance of the Credit Accommodations that is supported by
Export-Related Inventory does not exceed sixty percent (60%) of the sum of the
total outstanding principal balance of the Disbursements and the undrawn face
amount of all outstanding Commercial Letters of Credit.  If informed by Lender or if Borrower
otherwise has actual knowledge that the outstanding principal balance of the
Credit Accommodations that is supported by Inventory exceeds sixty percent
(60%) of the sum of the total outstanding principal balance of the
Disbursements and the undrawn face amount of all outstanding Commercial Letters
of Credit, Borrower shall, within five (5) Business Days, either (i) furnish
additional non-Inventory Collateral to Lender, in form and amount satisfactory
to Lender and Ex-Im Bank, or (ii) pay down the applicable portion of the Credit
Accommodations so that the above described ratio is not exceeded.


2.08  Continued
Security Interest.  Borrower shall
not change (a) its name or identity in any manner, (b) the location of its
principal place of business, (c) the location of any of the Collateral or (d)
the location of any of the books or records related to the Collateral, in each
instance without giving thirty (30) days prior written notice thereof to Lender
and taking all actions deemed necessary or appropriate by Lender to
continuously protect and perfect Lender’s Liens upon the Collateral.


2.09  Inspection
of Collateral.  Borrower shall
permit the representatives of Lender and Ex-Im Bank to make at any time during
normal business hours inspections of the Collateral and of Borrower’s
facilities, activities, and books and records, and shall cause its officers and
employees to give full cooperation and assistance in connection therewith.


 


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2.10  General
Intangibles.  Borrower represents
and warrants that it owns, or is licensed to use, all General Intangibles
necessary to conduct its business as currently conducted except where the
failure of Borrower to own or license such General Intangibles could not
reasonably be expected to have a Material Adverse Effect.


2.11  Notice
of Certain Events.  Borrower shall
promptly, but in any event within five (5) Business Days, notify Lender in
writing of the occurrence of any of the following:


(a)           Borrower or any Guarantor (i) applies
for, consents to or suffers the appointment of, or the taking of possession by,
a receiver, custodian, trustee, liquidator or similar fiduciary of itself or of
all or a substantial part of its property or calls a meeting of its creditors,
(ii) admits in writing its inability, or is generally unable, to pay its debts
as they become due or ceases operations of its present business, (iii) makes a
general assignment for the benefit of creditors, (iv) commences a voluntary
case under any state or federal bankruptcy laws (as now or hereafter in
effect), (v) is adjudicated as bankrupt or insolvent, (vi) files a petition
seeking to take advantage of any other law providing for the relief of debtors,
(vii) acquiesces to, or fails to have dismissed within thirty (30) days, any
petition filed against it in any involuntary case under such bankruptcy laws,
or (vii) takes any action for the purpose of effecting any of the foregoing;


(b)           any Lien in any of the Collateral,
granted or intended by the Loan Documents to be granted to Lender, ceases to be
a valid, enforceable, perfected, first priority Lien (or a lesser priority if
expressly permitted pursuant to Section 6 of the Loan Authorization Agreement)
subject only to Permitted Liens;


(c)           the issuance of any levy, assessment,
attachment, seizure or Lien, other than a Permitted Lien, against any of the
Collateral which is not stayed or lifted within thirty (30) calendar days;


(d)           any proceeding is commenced by or
against Borrower or any Guarantor for the liquidation of its assets or
dissolution;


(e)           any litigation is filed against
Borrower or any Guarantor which has had or could reasonably be expected to have
a Material Adverse Effect and such litigation is not withdrawn or dismissed
within thirty (30) calendar days of the filing thereof;


(f)            any default or event of default
under the Loan Documents;


(g)           any failure to comply with any terms
of the Loan Authorization Agreement;


(h)           any material provision of any Loan
Document or this Agreement for any reason ceases to be valid, binding and
enforceable in accordance with its terms;


(i)            any event which has had or could
reasonably be expected to have a Material Adverse Effect; or


(j)            the Credit Accommodation Amount
exceeds the applicable Export-Related Borrowing Base.


 


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2.12  Insurance.
Borrower will at all times carry property, liability and other insurance, with
insurers acceptable to Lender, in such form and amounts, and with such
deductibles and other provisions, as Lender shall require, and Borrower will
provide evidence of such insurance to Lender, so that Lender is satisfied that
such insurance is, at all times, in full force and effect.  Each property insurance policy shall name
Lender as loss payee and shall contain a lender’s loss payable endorsement in
form acceptable to Lender and each liability insurance policy shall name Lender
as an additional insured.  All policies
of insurance shall provide that they may not be cancelled or changed without at
least ten (10) days’ prior written notice to Lender and shall otherwise be in
form and substance satisfactory to Lender. 
Borrower will promptly deliver to Lender copies of all reports made to
insurance companies.


2.13  Taxes.
Borrower has timely filed all tax returns and reports required by applicable
law, has timely paid all applicable taxes, assessments, deposits and
contributions owing by Borrower and will timely pay all such items in the
future as they became due and payable. 
Borrower may, however, defer payment of any contested taxes; provided,
that Borrower (a) in good faith contests Borrower’s obligation to pay such
taxes by appropriate proceedings promptly and diligently instituted and
conducted; (b) notifies Lender in writing of the commencement of, and any
material development in, the proceedings; (c) posts bonds or takes any
other steps required to keep the contested taxes from becoming a Lien upon any
of the Collateral; and (d) maintains adequate reserves therefor in
conformity with GAAP.


2.14  Compliance
with Laws. Borrower represents and warrants that it has complied in all
material respects with all provisions of all applicable laws and regulations,
including those relating to Borrower’s ownership of real or personal property,
the conduct and licensing of Borrower’s business, the payment and withholding
of taxes, ERISA and other employee matters, safety and environmental matters.


2.15  Negative
Covenants.  Without the prior
written consent of Ex-Im Bank and Lender, Borrower shall not (a) merge,
consolidate or otherwise combine with any other Person; (b) acquire all or
substantially all of the assets or capital stock of any other Person; (c) sell,
lease, transfer, convey, assign or otherwise dispose of any of its assets,
except for the sale of Inventory in the ordinary course of business and the
disposition of obsolete equipment in the ordinary course of business; (d)
create any Lien on the Collateral except for Permitted Liens; (e) make any
material changes in its organizational structure or identity; or (f) enter into
any agreement to do any of the foregoing.


2.16  Reborrowings
and Repayment Terms.  (a)  If the Loan Facility is a Revolving Loan
Facility, provided that Borrower is not in default under any of the Loan
Documents, Borrower may borrow, repay and reborrow amounts under the Loan
Facility until the close of business on the Final Disbursement Date.  Unless the Revolving Loan Facility is
renewed or extended by Lender with the consent of Ex-Im Bank, Borrower shall
pay in full the outstanding Loan Facility Obligations and all accrued and
unpaid interest thereon no later than the first Business Day after the Final
Disbursement Date.


(b)           If the Loan Facility is a Transaction
Specific Loan Facility, Borrower shall, within two (2) Business Days of the
receipt thereof, pay to Lender (for application against the outstanding Loan
Facility Obligations and accrued and unpaid interest thereon) all checks,
drafts, cash and 


 


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other remittances it may
receive in payment or on account of the Export-Related Accounts Receivable or
any other Collateral, in precisely the form received (except for the
endorsement of Borrower where necessary). 
Pending such deposit, Borrower shall hold such amounts in trust for
Lender separate and apart and shall not commingle any such items of payment
with any of its other funds or property.


2.17  Cross
Default.  Borrower shall be deemed
in default under the Loan Facility if Borrower fails to pay when due any amount
payable to Lender under any loan or other credit accommodations to Borrower
whether or not guaranteed by Ex-Im Bank.


2.18  Munitions
List.  If any of the Items are
articles, services, or related technical data that are listed on the United
States Munitions List (part 121 of title 22 of the Code of Federal
Regulations), Borrower shall send a written notice promptly, but in any event
within five (5) Business Days, of Borrower learning thereof to Lender
describing the Items(s) and the corresponding invoice amount.


2.19  Suspension
and Debarment, etc.  On the date of
this Agreement neither Borrower nor its Principals are (a) debarred, suspended,
proposed for debarment with a final determination still pending, declared
ineligible or voluntarily excluded (as such terms are defined under any of the
Debarment Regulations referred to below) from participating in procurement or
nonprocurement transactions with any United States federal government
department or agency pursuant to any of the Debarment Regulations or (b)
indicted, convicted or had a civil judgment rendered against Borrower or any of
its Principals for any of the offenses listed in any of the Debarment Regulations.  Unless authorized by Ex-Im Bank, Borrower
will not knowingly enter into any transactions in connection with the Items
with any person who is debarred, suspended, declared ineligible or voluntarily
excluded from participation in procurement or nonprocurement transactions with
any United States federal government department or agency pursuant to any of
the Debarment Regulations.  Borrower
will provide immediate written notice to Lender if at any time it learns that
the certification set forth in this Section 2.19 was erroneous when made or has
become erroneous by reason of changed circumstances.


ARTICLE III         

RIGHTS AND REMEDIES


3.01  Indemnification.  Upon Ex-Im Bank’s payment of a Claim to
Lender in connection with the Loan Facility pursuant to the Master Guarantee
Agreement, Ex-Im Bank may assume all rights and remedies of Lender under the
Loan Documents and may enforce any such rights or remedies against Borrower,
the Collateral and any Guarantors. 
Borrower shall hold Ex-Im Bank and Lender harmless from and indemnify
them against any and all liabilities, damages, claims, costs and losses
incurred or suffered by either of them resulting from (a) any materially
incorrect certification or statement knowingly made by Borrower or its agent to
Ex-Im Bank or Lender in connection with the Loan Facility, this Agreement, the
Loan Authorization Agreement or any other Loan Documents or (b) any material
breach by Borrower of the terms and conditions of this Agreement, the Loan
Authorization Agreement or any of the other Loan Documents.  Borrower also acknowledges that any
statement, certification or representation made by Borrower in connection with
the Loan Facility is subject to the penalties provided in Article 18 U.S.C.
Section 1001.


 


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3.02  Liens.  Borrower agrees that any and all Liens
granted by it to Lender are also hereby granted to Ex-Im Bank to secure
Borrower’s obligation, however arising, to reimburse Ex-Im Bank for any
payments made by Ex-Im Bank pursuant to the Master Guarantee Agreement.  Lender is authorized to apply the proceeds
of, and recoveries from, any property subject to such Liens to the satisfaction
of Loan Facility Obligations in accordance with the terms of any agreement
between Lender and Ex-Im Bank.


ARTICLE IV

MISCELLANEOUS


4.01  Governing
Law.  This Agreement and the Loan
Authorization Agreement and the obligations arising under this Agreement and
the Loan Authorization Agreement shall be governed by, and construed in
accordance with, the law of the state governing the Loan Documents.


4.02  Notification.  All notices required by this Agreement shall
be given in the manner and to the parties provided for in the Loan Agreement.


4.03  Partial
Invalidity.  If at any time any of
the provisions of this Agreement becomes illegal, invalid or unenforceable in
any respect under the law of any jurisdiction, neither the legality, the
validity nor the enforceability of the remaining provisions hereof shall in any
way be affected or impaired.


4.04  Waiver
of Jury Trial. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION, SUIT, PROCEEDING OR OTHER LITIGATION BROUGHT TO RESOLVE ANY DISPUTE
ARISING UNDER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LOAN
AUTHORIZATION AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER AGREEMENT, DOCUMENT OR
INSTRUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
OR ACTIONS OR OMMISSIONS OF LENDER, EX-IM BANK, OR ANY OTHER PERSON, RELATING
TO THIS AGREEMENT, THE LOAN AUTHORIZATION AGREEMENT OR ANY OTHER LOAN DOCUMENT.


 


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IN WITNESS WHEREOF,
Borrower has caused this Agreement to be duly executed as of the 18th day
of  June, 2002.


PHARSIGHT, INC.




	
  By:

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
   

  	
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  Title:

  	
   

  
	
   

  	
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  ACKNOWLEDGED:

  
	
   

  
	
  SILICON VALLEY
  BANK

  
	
   

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  (Signature)

  
	
   

  	
   

  
	
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ANNEXES:


Annex A            -   Loan
Authorization Agreement or Loan Authorization Notice


 


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CONSENT OF GUARANTORS


 


                Each of the undersigned as a Guarantor of the
obligations of Borrower to the Lender executing the foregoing Agreement hereby
agrees that the foregoing Agreement, each of their respective Guaranty
Agreements and each other Loan Documents may be assigned to the Export-Import
Bank of the United States.


 


 


	
   

  	
   

  
	
   

  	
  [INDIVIDUAL
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [CORPORATE
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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