Fifth Amendment to Loan and Security Agreement




 Exhibit 10.39 
 FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT 
 This Fifth Amendment to Loan and Security Agreement
(this “Amendment”) is entered into as of August 31, 2007, by and between Greater Bay Venture Banking, a division of Greater Bay Bank, N.A. (“Bank”) and ANDA NETWORKS, INC. (“Borrower”). 
 RECITALS 
 Borrower and Bank are
parties to that certain Loan and Security Agreement dated as of September 3, 2004, as amended (the “Agreement”). Borrower and Bank desire to amend certain provisions of the Agreement, all in accordance with the terms of this
Amendment. 
 NOW, THEREFORE, the parties agree as follows: 
 1. Amendments to Agreement. The Agreement is hereby amended as follows: 
 (a) Section 6.9 is amended to read as follows: 
 6.9 Profitability/Loss. 
 For each fiscal quarter of the Borrower beginning with the fiscal quarter ending on September 30, 2007, Borrower shall have achieved
a minimum net profit of at least eighty percent (80%) of the projected net profit for such quarter as set forth in Borrower’s financial plan previously delivered to Bank and attached hereto as Exhibit F. 
 (b) Exhibit E is deleted and replaced with Exhibit E attached hereto. 
 (c) Exhibit F is deleted and replaced with Exhibit F attached hereto. 
 2. Conditions Precedent to Effectiveness. This Amendment shall become effective only upon: 
 (a) receipt by the Bank of the following (each of which shall be in form and substance satisfactory to Bank): 
 (i) counterparts of this Amendment duly executed on behalf of the Borrower and the Bank; 
 (ii) copies of resolutions of the Board of Directors or other authorizing documents of Borrower, authorizing the execution and delivery of
this Amendment; 
 (b) Bank shall have received an amount equal to all Bank Expenses incurred in connection with this
Amendment; and 
 (c) completion of such other matters and delivery of such other agreements, documents and certificates as
Bank may reasonably request. 
 3. Representation and Warranties. Borrower represents and warrants that the Representations and
Warranties contained in the Agreement are true and correct as of the date of this Amendment, and that after giving effect to this Amendment, no Event of Default has occurred and is continuing. 
 4. MISCELLANEOUS. 
 (a) Successors and Assigns. This Amendment shall be binding upon and shall inure to the benefit of Borrower and Bank and their respective successors and assigns; provided, however, that the foregoing shall not authorize any
assignment by Borrower of its rights or duties hereunder. 
  

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 (b) Entire Agreement. This Amendment and the Loan Documents contain the entire
agreement of the parties hereto and supersede any other oral or written agreements or understandings. 
 (c) Course of
Dealing; Waivers. No course of dealing on the part of Bank or its officers, nor any failure or delay in the exercise of any right by Bank, shall operate as a waiver thereof, and any single or partial exercise of any such right shall not preclude
any later exercise of any such right. Bank’s failure at any time to require strict performance by Borrower of any provision shall not affect any right of Bank thereafter to demand strict compliance and performance. Any suspension or waiver of a
right must be in writing signed by an officer of Bank. 
 (d) Legal Effect. All references in the Loan Documents to
“Venture Banking Group, a division of Greater Bay Bank N.A.” shall mean and refer to Greater Bay Venture Banking, a division of Greater Bay Bank, N.A. Except as amended by this Amendment, the Loan Documents remain in full force and effect.
If any provision of this Amendment conflicts with applicable law, such provision shall be deemed severed from this Amendment, and the balance of this Amendment shall remain in full force and effect. Unless otherwise defined, all capitalized terms in
this Amendment shall have the meaning set forth in the Agreement. 
 (e) Counterparts. This Amendment may be executed
in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 
 IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written. 
  

			
	ANDA NETWORKS, INC.
		
	By	 	 
		
	Title	 	 
	
	GREATER BAY VENTURE BANKING, A DIVISION OF GREATER BAY BANK, N.A.
		
	By	 	 
		
	Title	 	 


  

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 EXHIBIT E 
 COMPLIANCE CERTIFICATE 
 TO:           GREATER BAY VENTURE BANKING,
A DIVISION OF GREATER BAY BANK, N.A. 
 FROM:    ANDA NETWORKS, INC. 
 The undersigned authorized officer of ANDA NETWORKS, INC. hereby certifies that in accordance with the terms and conditions of the Loan and Security
Agreement between Borrower and Bank (the “Agreement”), (i) Borrower is in complete compliance for the period ending
                         with all required covenants except as noted below and (ii) all representations and
warranties of Borrower stated in the Agreement are true and correct in all material respects as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that these are
prepared in accordance with Generally Accepted Accounting Principles (GAAP) and are consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The Officer expressly acknowledges that no borrowings
may be requested by Borrower at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that such compliance is determined not just at the date this certificate is delivered. 
 Please indicate compliance status by circling Yes/No under “Complies” column. 
  

									
	 Reporting Covenant
	  	 Required
	  	 	 	 	  	Complies
	Monthly financial statements	  	Monthly within 30 days	  		 	Yes	  	No
	Annual (CPA Audited)	  	FYE within 180 days	  		 	Yes	  	No
	10-Q, 10-K and 8-K	  	Within 5 days after filing with SEC	  		 	Yes	  	No
	Borrowing Base Certificate	  	Monthly within 20 days (if an Advance is outstanding)	  		 	Yes	  	No
	A/R & A/P Agings & Backlog report	  	Monthly within 20 days	  		 	Yes	  	No
	A/R Audit	  	Annually	  		 	Yes	  	No
					
	 Financial Covenant
	  	 Required
	  	Actual	 	 	  	Complies
	Maintain on a monthly basis (unless otherwise noted):	  		  		 		  	
	Minimum Liquidity Ratio 1	  	1.50:1.0	  	_____:1.0	 	Yes	  	No
	Profitability/Loss (Quarterly)	  	$ ___________2	  	$___________	 	Yes	  	No

  

	 1
	 “Liquidity Ratio” means, as of any date for which it is tested, the
ratio of (a) an amount equal to (i) unrestricted cash and cash equivalents maintained with Bank, plus (ii) net, billed accounts receivable of Borrower, excluding Accounts that the account debtor has failed to pay within ninety
(90) days of invoice date, to (b) the aggregate amount of all outstanding Obligations. 


  

	 2
	 For each fiscal quarter of the Borrower beginning with the fiscal quarter ending
on September 31, 2007, Borrower shall have achieved a minimum net profit of at least eighty percent (80%) of the projected net profit for such quarter as set forth in Borrower’s financial plan previously delivered to Bank and attached
hereto as Exhibit F. 


  

					
	Comments Regarding Exceptions: See Attached.	  	BANK USE ONLY
			
		  	Received by:	 	 
	Sincerely,	  		 	 AUTHORIZED SIGNER

		  	Date:	 	 
			
	 	  	Verified:	 	 
	SIGNATURE	  		 	 AUTHORIZED SIGNER

			
	 	  	Date:	 	 
	TITLE	  		 	
			
	 	  	Compliance Status	 	                 Yes
            No

	DATE	  		 	
		  		 	

  

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 EXHIBIT F 
 BORROWER’S FINANCIAL PLAN DATED                 , 2007 
 (see attached) 
  

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 CORPORATE RESOLUTIONS TO BORROW 
  

			
	Borrower:	  	ANDA NETWORKS, INC.

 I, the undersigned Secretary or Assistant Secretary of ANDA NETWORKS, INC. (the
“Corporation”), HEREBY CERTIFY that the Corporation is organized and existing under and by virtue of the laws of the State of Delaware. 
 I FURTHER CERTIFY that the Certificate of Incorporation and Bylaws previously delivered to Greater Bay Venture Banking, a division of Greater Bay Bank, N.A. (the “Bank”) remain in full force and effect and have not been amended,
restated or modified. 
 I FURTHER CERTIFY that at a meeting of the Directors of the Corporation duly called and held, at which a quorum was
present and voting (or by other duly authorized corporate action in lieu of a meeting), the following resolutions were adopted. 
 BE IT
RESOLVED, that any one (1) of the following named officers, employees, or agents of this Corporation, whose actual signatures are shown below: 
  

					
	 NAMES
	  	 POSITION
	  	 ACTUAL SIGNATURES

			
	 _____________________________________
	  	 ___________________________________
	  	 ___________________________________

			
	 _____________________________________
	  	 ___________________________________
	  	 ___________________________________

			
	 _____________________________________
	  	 ___________________________________
	  	 ___________________________________

			
	 _____________________________________
	  	 ___________________________________
	  	 ___________________________________


 acting for and on behalf of this Corporation and as its act and deed be, and they hereby are, authorized and
empowered: 
 Borrow Money. To borrow from time to time from Greater Bay Venture Banking, a division of Greater Bay Bank, N.A., on
such terms as may be agreed upon between the officers, employees, or agents and Bank, such sum or sums of money as in their judgment should be borrowed. 
 Execute Documents. To execute and deliver to Bank the Fifth Amendment to Loan and Security Agreement dated as of August 31, 2007, (the “Amendment”), and also to execute and deliver to Bank one or
more renewals, extensions, modifications, refinancings, consolidations, or substitutions for one or more of the notes, or any portion of the notes. 
 Grant Security. To grant a security interest to Bank in the Collateral described in the Loan Agreement, which security interest shall secure all of the Corporation’s Obligations, as described in the Loan Agreement. 

Negotiate Items. To draw, endorse, and discount with Bank all drafts, trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to the Corporation or in which the Corporation may have an interest, and either to receive cash for the same or to cause such proceeds to be credited to the account of the Corporation with Bank, or to cause such
other disposition of the proceeds derived therefrom as they may deem advisable. 
 Letters of Credit; Foreign Exchange. To execute
letters of credit applications, foreign exchange agreements and other related documents pertaining to Bank’s issuance of letters of credit and foreign exchange contracts. 
 Further Acts. In the case of lines of credit, to designate additional or alternate individuals as being authorized to request advances
thereunder, and in all cases, to do and perform such other acts and things, to pay any and all fees and costs, and to execute 

  

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 and deliver such other documents and agreements as they may in their discretion deem reasonably necessary or proper in
order to carry into effect the provisions of these Resolutions. 
 BE IT FURTHER RESOLVED, that any and all acts authorized pursuant to these
resolutions and performed prior to the passage of these resolutions are hereby ratified and approved, that these Resolutions shall remain in full force and effect and Bank may rely on these Resolutions until written notice of their revocation shall
have been delivered to and received by Bank. Any such notice shall not affect any of the Corporation’s agreements or commitments in effect at the time notice is given. 
 I FURTHER CERTIFY that the officers, employees, and agents named above are duly elected, appointed, or employed by or for the Corporation, as the case
may be, and occupy the positions set forth opposite their respective names; that the foregoing Resolutions now stand of record on the books of the Corporation; and that the Resolutions are in full force and effect and have not been modified or
revoked in any manner whatsoever. 
 IN WITNESS WHEREOF, I have hereunto set my hand on August 31, 2007 and attest that the signatures
set opposite the names listed above are their genuine signatures. 
  

			
	CERTIFIED TO AND ATTESTED BY:
		
	X	 	 
		 	


  

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