exv10w31



 





EXHIBIT 10.31




Silicon Valley Bank




Loan and Security Agreement




	 	 	 	 	 	 	 
	Borrower:

	 	Three-Five Systems, Inc.
	 	and
	 	TFS Electronic Manufacturing Services, Inc.
	Address:

	 	1600 North Desert Drive
	 	 	 	6640 185th Avenue N.E.
	

	 	Tempe, AZ 85281
	 	 	 	Redmond, WA 98052
	 
	 	 	 	 	 	 
	Date:

	 	June 25, 2004	 	 	 	 






THIS LOAN AND SECURITY AGREEMENT is entered into on the above date between
SILICON VALLEY BANK (“Silicon”), whose address is 3003 Tasman Drive, Santa
Clara, California 95054 and the borrower(s) named above (jointly and
severally, the “Borrower”), whose chief executive office is located at the
above address (“Borrower’s Address”). The Schedule to this Agreement (the
“Schedule”) shall for all purposes be deemed to be a part of this Agreement,
and the same is an integral part of this Agreement. (Definitions of certain
terms used in this Agreement are set forth in Section 8 below.)




1. LOANS.




     1.1 Loans. Silicon will make loans to Borrower (the “Loans”) up to the
amounts (the “Credit Limit”) shown on the Schedule, provided no Default or
Event of Default has occurred and is continuing, and subject to deduction of
Reserves for accrued interest and such other Reserves as Silicon deems proper
from time to time in its good faith business judgment.



     1.2 Interest. All Loans and all other monetary Obligations shall bear
interest at the rate shown on the Schedule, except where expressly set forth to
the contrary in this Agreement. Interest shall be payable monthly, on the last
day of the month. Interest may, in Silicon’s discretion, be charged to
Borrower’s loan account, and the same shall thereafter bear interest at the
same rate as the other Loans. Silicon may, in its discretion, charge interest
to Borrower’s Deposit Accounts maintained with Silicon.



     1.3 Overadvances. If at any time or for any reason the total of all
outstanding Loans and all other monetary Obligations exceeds the Credit Limit
(an “Overadvance”), Borrower shall immediately pay the amount of the excess to
Silicon, without notice or demand. Without limiting Borrower’s obligation to
repay to Silicon the amount of any Overadvance, Borrower agrees to pay Silicon
interest on the outstanding amount of any Overadvance, on demand, at the
Default Rate.



     1.4 Fees. Borrower shall pay Silicon the fees shown on the Schedule,
which are in addition to all interest and other sums payable to Silicon and are
not refundable.



     1.5 Loan Requests. To obtain a Loan, Borrower shall make a request to
Silicon by facsimile or telephone. Loan requests received after 12:00 Noon/*
will not be considered by Silicon until the next Business Day. Silicon may rely
on any telephone request for a Loan given by a person whom Silicon believes is
an authorized representative of Borrower, and Borrower will indemnify Silicon
for any loss Silicon suffers as a result of that reliance.




	*	 	(Pacific Standard Time)





     1.6 Letters of Credit. At the request of Borrower, Silicon may, in its
good faith business judgment, issue or arrange for the issuance of letters of
credit for the account of Borrower, in each case in form and substance
satisfactory to Silicon in its sole discretion (collectively, “Letters of
Credit”). The aggregate face amount of all Letters of Credit from time to time
outstanding shall not exceed the amount shown on the Schedule (the “Letter of
Credit Sublimit”), and shall be reserved against Loans which would otherwise be
available hereunder, and in the event at any time there are insufficient Loans
available to Borrower for such reserve, Borrower shall deposit and
maintain with Silicon cash collateral in an amount at all



-1-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






times equal to such
deficiency, which shall be held as Collateral for all purposes of this
Agreement. Borrower shall pay all bank charges (including charges of Silicon)
for the issuance of Letters of Credit, together with such additional fee as
Silicon’s letter of credit department shall charge in connection with the
issuance of the Letters of Credit. Any payment by Silicon under or in
connection with a Letter of Credit shall constitute a Loan hereunder on the
date such payment is made. Each Letter of Credit shall have an expiry date no
later than thirty days prior to the Maturity Date. Borrower hereby agrees to
indemnify and hold Silicon harmless from any loss, cost, expense, or liability,
including payments made by Silicon, expenses, and reasonable attorneys’ fees
incurred by Silicon arising out of or in connection with any Letters of Credit.
Borrower agrees to be bound by the regulations and interpretations of the
issuer of any Letters of Credit guarantied by Silicon and opened for Borrower’s
account or by Silicon’s interpretations of any Letter of Credit issued by
Silicon for Borrower’s account, and Borrower understands and agrees that
Silicon shall not be liable for any error, negligence, or mistake, whether of
omission or commission, in following Borrower’s instructions or those contained
in the Letters of Credit or any modifications, amendments, or supplements
thereto. Borrower understands that Letters of Credit may require Silicon to
indemnify the issuing bank for certain costs or liabilities arising out of
claims by Borrower against such issuing bank. Borrower hereby agrees to
indemnify and hold Silicon harmless with respect to any loss, cost, expense, or
liability incurred by Silicon under any Letter of Credit as a result of
Silicon’s indemnification of any such issuing bank. The provisions of this
Loan Agreement, as it pertains to Letters of Credit, and any other Loan
Documents relating to Letters of Credit are cumulative.



2. SECURITY INTEREST. To secure the payment and performance of all of the
Obligations when due, Borrower hereby grants to Silicon a security interest in
all of the following (collectively, the “Collateral”): all right, title and
interest of Borrower in and to all of the following, whether now owned or
hereafter arising or acquired and wherever located: all Accounts; all
Inventory; all Equipment; all Deposit Accounts; all General Intangibles
(including without limitation all Intellectual Property); all Investment
Property; all Other Property; and any and all claims, rights and interests in
any of the above, and all guaranties and security for any of the above, and all
substitutions and replacements for, additions, accessions, attachments,
accessories, and improvements to, and proceeds (including proceeds of any
insurance policies, proceeds of proceeds and claims against third parties) of,
any and all of the above, and all Borrower’s books relating to any and all of
the above./* *Notwithstanding anything to the contrary contained herein, the
Collateral shall not include any fixtures now or hereafter located upon
Borrower’s premises at 1600 North Desert Drive, Tempe, Arizona 85281.



3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER.




     In order to induce Silicon to enter into this Agreement and to make Loans,
Borrower represents and warrants to Silicon as follows, and Borrower covenants
that the following representations will continue to be true, and that Borrower
will at all times comply with all of the following covenants, throughout the
term of this Agreement and until all Obligations have been paid and performed
in full:



     3.1 Corporate Existence and Authority. Borrower is and will continue to
be, duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. Borrower is and will continue to be
qualified and licensed to do business in all jurisdictions in which any failure
to do so would result in a Material Adverse Change. The execution, delivery
and performance by Borrower of this Agreement, and all other documents
contemplated hereby (i) have been duly and validly authorized, (ii) are
enforceable against Borrower in accordance with their terms (except as
enforcement may be limited by equitable principles and by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors’
rights generally), and (iii) do not violate Borrower’s articles or certificate
of incorporation, or Borrower’s by-laws, or any law or any material agreement
or instrument which is binding upon Borrower or its property, and (iv) do not
constitute grounds for acceleration of any material indebtedness or obligation
under any agreement or instrument which is binding upon Borrower or its
property.



     3.2 Name; Trade Names and Styles. The name of Borrower set forth in the
heading to this Agreement is its correct name. Listed in the Representations
are all prior names of Borrower and all of Borrower’s present and prior trade
names. Borrower shall give Silicon 30 days’ prior written notice before
changing its name or doing business under any other name. Borrower has
complied, and will in the future comply, in all material respects, with all
laws relating to the conduct of business under a fictitious business name,
except where the failure to so comply would not reasonably be expected to
result in a Material Adverse Change.



     3.3 Place of Business; Location of Collateral. The address set forth in
the heading to this Agreement is Borrower’s chief executive office. In
addition, Borrower has places of business and Collateral is located only at the
locations set forth in the Representations. Borrower will give Silicon at
least 30 days prior written notice before opening any additional place
of business, changing its chief executive office, or moving any of the
Collateral to a location other than Borrower’s Address or one of the locations
set forth in the Representations, except that Borrower may maintain sales
offices in the ordinary course of business at which not more than a total of /*fair market value of Equipment is located. *$100,000



-2-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     3.4 Title to Collateral; Perfection; Permitted Liens.



          (a) Borrower is now, and will at all times in the future be, the sole
owner of all the Collateral, except for items of Equipment which are leased to
Borrower. The Collateral now is and will remain free and clear of any and all
liens, charges, security interests, encumbrances and adverse claims, except for
Permitted Liens. Silicon now has, and will continue to have, a first-priority
perfected and enforceable security interest in all of the Collateral, subject
only to the Permitted Liens, and Borrower will at all times defend Silicon and
the Collateral against all claims of others.



          (b) Borrower has set forth in the Representations all of Borrower’s
Deposit Accounts, and Borrower will give Silicon five Business Days advance
written notice before establishing any new Deposit Accounts and /* will cause
the institution where any such new Deposit Account is maintained to execute and
deliver to Silicon a control agreement in form sufficient to perfect Silicon’s
security interest in the Deposit Account and otherwise satisfactory to Silicon
in its good faith business judgment. Nothing herein limits any requirements
which may be set forth in the Schedule as to where Deposit Accounts will be
maintained.



          * , whenever requested by Silicon,



          (c) In the event that Borrower shall at any time after the date hereof
have any commercial tort claims against others, which it is asserting or
intends to assert, and in which the potential recovery exceeds $100,000,
Borrower shall promptly notify Silicon thereof in writing and provide Silicon
with such information regarding the same as Silicon shall request (unless
providing such information would waive the Borrower’s attorney-client
privilege). Such notification to Silicon shall constitute a grant of a
security interest in the commercial tort claim and all proceeds thereof to
Silicon, and Borrower shall execute and deliver all such documents and take all
such actions as Silicon shall request in connection therewith.



          (d) None of the Collateral now is or will be affixed to any real property
in such a manner, or with such intent, as to become a fixture. Borrower is not
and will not become a lessee under any real property lease pursuant to which
the lessor may obtain any rights in any of the Collateral and no such lease now
prohibits, restrains, impairs or will prohibit, restrain or impair Borrower’s
right to remove any Collateral from the leased premises. Whenever any
Collateral is located upon premises in which any third party has an interest,
Borrower shall, whenever requested by Silicon, use its best efforts to cause
such third party to execute and deliver to Silicon, in form acceptable to
Silicon, such waivers and subordinations as Silicon shall specify in its good
faith business judgment. Borrower will keep in full force and effect, and will
comply with all material terms of, any lease of real property where any of the
Collateral now or in the future may be located.



     3.5 Maintenance of Collateral. Borrower will maintain the Collateral in
good working condition (ordinary wear and tear excepted), and Borrower will not
use the Collateral for any unlawful purpose. Borrower will immediately advise
Silicon in writing of any material loss or damage to the Collateral.



     3.6 Books and Records. Borrower has maintained and will maintain at
Borrower’s Address complete and accurate books and records, comprising an
accounting system in accordance with GAAP.



     3.7 Financial Condition, Statements and Reports. All financial
statements now or in the future delivered to Silicon have been, and will be,
prepared in conformity with GAAP and now and in the future will fairly present
the results of operations and financial condition of Borrower, in accordance
with GAAP, at the times and for the periods therein stated. Between the last
date covered by any such statement provided to Silicon and the date hereof,
there has been no Material Adverse Change.



     3.8 Tax Returns and Payments; Pension Contributions. Borrower has timely
filed, and will timely file, all required tax returns and reports, and Borrower
has timely paid, and will timely pay, all foreign, federal, state and local
taxes, assessments, deposits and contributions now or in the future owed by
Borrower. Borrower may, however, defer payment of any contested taxes,
provided that Borrower (i) in good faith contests Borrower’s obligation to pay
the taxes by appropriate proceedings promptly and diligently instituted and
conducted, (ii) notifies Silicon in writing of the commencement of, and any
material development in, the proceedings, and (iii) posts bonds or takes any
other steps required to keep the contested taxes from becoming a lien upon any
of the Collateral. Borrower is unaware of any claims or adjustments proposed
for any of Borrower’s prior tax years which could result in additional taxes
becoming due and payable by Borrower. Borrower has paid, and shall continue to
pay all amounts necessary to fund all present and future pension, profit
sharing and deferred compensation plans in accordance with their terms, and
Borrower has not and will not withdraw from participation in, permit partial or
complete termination of, or permit the occurrence of any other event with
respect to, any such plan which
could reasonably be expected to result in any liability of Borrower,
including any liability to the Pension Benefit Guaranty Corporation or its
successors or any other governmental agency.



     3.9 Compliance with Law. Borrower has, to the best of its knowledge,
complied, and will comply, in all material respects, with all provisions of all
foreign, federal, state and local laws and regulations applicable to Borrower,
including, but not limited to, those relating to Borrower’s ownership of real
or personal property, the conduct and licensing of Borrower’s business, and all
environmental matters.



-3-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     3.10 Litigation. There is no claim, suit, litigation, proceeding or
investigation pending or (to best of Borrower’s knowledge) threatened against
or affecting Borrower in any court or before any governmental agency (or any
basis therefor known to Borrower) which could reasonably be expected to result,
either separately or in the aggregate, in any Material Adverse Change.
Borrower will promptly inform Silicon in writing of any claim, proceeding,
litigation or investigation in the future threatened or instituted against
Borrower involving any single claim of $50,000 or more, or involving $100,000
or more in the aggregate.



     3.11 Use of Proceeds. All proceeds of all Loans shall be used solely for
lawful business purposes. Borrower is not purchasing or carrying any “margin
stock” (as defined in Regulation U of the Board of Governors of the Federal
Reserve System) and no part of the proceeds of any Loan will be used to
purchase or carry any “margin stock” or to extend credit to others for the
purpose of purchasing or carrying any “margin stock.”


4. ACCOUNTS.




     4.1 Representations Relating to Accounts. Borrower represents and
warrants to Silicon as follows: Each /*Account with respect to which Loans are
requested by Borrower shall, on the date each Loan is requested and made, (i)
represent an undisputed bona fide existing unconditional obligation of the
Account Debtor created by the sale, delivery, and acceptance of goods or the
rendition of services, or the non-exclusive licensing of Intellectual Property,
in the ordinary course of Borrower’s business, and (ii) meet the Minimum
Eligibility Requirements set forth in Section 8 below. *Eligible



     4.2 Representations Relating to Documents and Legal Compliance. Borrower
represents and warrants to Silicon as follows: All statements made and all
unpaid balances appearing in all invoices, instruments and other documents
evidencing the Accounts are and shall be true and correct and all such
invoices, instruments and other documents and all of Borrower’s books and
records are and shall be genuine and in all respects what they purport to be.
All sales and other transactions underlying or giving rise to each Account
shall comply in all material respects with all applicable laws and governmental
rules and regulations. To the best of Borrower’s knowledge, all signatures and
endorsements on all documents, instruments, and agreements relating to all
Accounts are and shall be genuine, and all such documents, instruments and
agreements are and shall be legally enforceable in accordance with their terms.



     4.3 Schedules and Documents relating to Accounts. Borrower shall deliver
to Silicon transaction reports and schedules of collections, as provided in the
Schedule, on Silicon’s standard forms; provided, however, that Borrower’s
failure to execute and deliver the same shall not affect or limit Silicon’s
security interest and other rights in all of Borrower’s Accounts, nor shall
Silicon’s failure to advance or lend against a specific Account affect or limit
Silicon’s security interest and other rights therein. If requested by Silicon,
Borrower shall furnish Silicon with copies (or, at Silicon’s request,
originals) of all contracts, orders, invoices, and other similar documents, and
all shipping instructions, delivery receipts, bills of lading, and other
evidence of delivery, for any goods the sale or disposition of which gave rise
to such Accounts, and Borrower warrants the genuineness of all of the
foregoing. Borrower shall also furnish to Silicon an aged accounts receivable
trial balance as provided in the Schedule. In addition, Borrower shall deliver
to Silicon, on its request, the originals of all instruments, chattel paper,
security agreements, guarantees and other documents and property evidencing or
securing any Accounts, in the same form as received, with all necessary
indorsements, and copies of all credit memos.



     4.4 Collection of Accounts. Borrower shall have the right to collect all
Accounts, unless and until a Default or an Event of Default has occurred and is
continuing. Whether or not an Event of Default has occurred and is continuing,
Borrower shall hold all payments on, and proceeds of, Accounts in trust for
Silicon, and Borrower shall immediately deliver all such payments and proceeds
to Silicon in their original form, duly endorsed, to be applied to the
Obligations in such order as Silicon shall determine. Silicon may, in its good
faith business judgment, require that all proceeds of Collateral be deposited
by Borrower into a lockbox account, or such other “blocked account” as Silicon
may specify, pursuant to a blocked account agreement in such form as Silicon
may specify in its good faith business judgment.



     4.5. Remittance of Proceeds. All proceeds arising from the disposition
of any Collateral shall be delivered, in kind, by Borrower to Silicon in the
original form in which received by Borrower not later than the /*Business Day
after receipt by Borrower, to be applied to the Obligations in such order as
Silicon shall determine; provided that, if no Default or Event of Default has
occurred and is continuing, Borrower shall not be obligated to remit to Silicon
the proceeds of the sale of worn out or obsolete Equipment disposed of by
Borrower in good faith in an arm’s length transaction for an aggregate
purchase price of /**or less (for all such transactions in any fiscal
year). Borrower agrees that it will not commingle proceeds of Collateral with
any of Borrower’s other funds or property, but will hold such proceeds separate
and apart from such other funds and property and in an express trust for
Silicon. Nothing in this Section limits the restrictions on disposition of
Collateral set forth elsewhere in this Agreement. *seventh **$100,000



     4.6 Disputes. Borrower shall notify Silicon promptly of all disputes or
claims relating to Accounts. Borrower shall not forgive (completely or
partially), compromise or settle any Account for less than payment in full, or
agree to do any of the foregoing, except that Borrower may do so, provided
that: (i) Borrower does so in good faith, in a commercially reasonable



-4-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






manner,
in the ordinary course of business, and in arm’s length transactions, which are
reported to Silicon on the regular reports provided to Silicon; (ii) no Default
or Event of Default has occurred and is continuing; and (iii) taking into
account all such discounts, settlements and forgiveness, the total outstanding
Loans will not exceed the Credit Limit.




     4.7 Returns. Provided no Event of Default has occurred and is
continuing, if any Account Debtor returns any Inventory to Borrower, Borrower
shall promptly determine the reason for such return and promptly issue a credit
memorandum to the Account Debtor in the appropriate amount. In the event any
attempted return occurs after the occurrence and during the continuance of any
Event of Default, Borrower shall hold the returned Inventory in trust for
Silicon, and immediately notify Silicon of the return of the Inventory.



     4.8 Verification. Silicon may, from time to time, verify directly with
the respective Account Debtors the validity, amount and other matters relating
to the Accounts, by means of mail, telephone or otherwise, either in the name
of Borrower or Silicon or such other name as Silicon may choose.



     4.9 No Liability. Silicon shall not be responsible or liable for any
shortage or discrepancy in, damage to, or loss or destruction of, any goods,
the sale or other disposition of which gives rise to an Account, or for any
error, act, omission, or delay of any kind occurring in the settlement, failure
to settle, collection or failure to collect any Account, or for settling any
Account in good faith for less than the full amount thereof, nor shall Silicon
be deemed to be responsible for any of Borrower’s obligations under any
contract or agreement giving rise to an Account. Nothing herein shall,
however, relieve Silicon from liability for its own gross negligence or willful
misconduct.


5. ADDITIONAL DUTIES OF BORROWER.




     5.1 Financial and Other Covenants. Borrower shall at all times comply
with the financial and other covenants set forth in the Schedule.



     5.2 Insurance. Borrower shall, at all times insure all of the tangible
personal property Collateral and carry such other business insurance, with
insurers reasonably acceptable to Silicon, in such form and amounts as Silicon
may reasonably require and that are customary and in accordance with standard
practices for Borrower’s industry and locations, and Borrower shall provide
evidence of such insurance to Silicon. All such insurance policies shall name
Silicon as an additional loss payee, and shall contain a lenders loss payee
endorsement in form reasonably acceptable to Silicon. Upon receipt of the
proceeds of any such insurance, Silicon shall apply such proceeds in reduction
of the Obligations as Silicon shall determine in its good faith business
judgment, except that, provided no Default or Event of Default has occurred and
is continuing, Silicon shall release to Borrower insurance proceeds with
respect to Equipment totaling less than $100,000, which shall be utilized by
Borrower for the replacement of the Equipment with respect to which the
insurance proceeds were paid. Silicon may require reasonable assurance that
the insurance proceeds so released will be so used. If Borrower fails to
provide or pay for any insurance, Silicon may, but is not obligated to, obtain
the same at Borrower’s expense. Borrower shall promptly deliver to Silicon
copies of all material reports made to insurance companies.



     5.3 Reports. Borrower, at its expense, shall provide Silicon with the
written reports set forth in the Schedule, and such other written reports with
respect to Borrower (including budgets, sales projections, operating plans and
other financial documentation), as Silicon shall from time to time specify in
its good faith business judgment.



     5.4 Access to Collateral, Books and Records. At reasonable times, and on
one Business Day’s notice, Silicon, or its agents, shall have the right to
inspect the Collateral, and the right to audit and copy Borrower’s books and
records. Silicon shall take reasonable steps to keep confidential all
information obtained in any such inspection or audit, but Silicon shall have
the right to disclose any such information /* to its auditors, regulatory
agencies, and attorneys, and pursuant to any subpoena or other legal process.
The foregoing inspections and audits shall be at Borrower’s expense and the
charge therefor shall be $750 per person per day (or such higher amount as
shall represent Silicon’s then current standard charge for the same), plus
reasonable out-of-pocket expenses. In the event Borrower and Silicon schedule
an audit more than 10 days in advance, and Borrower seeks to reschedules the
audit with less than 10 days written notice to Silicon, then (without limiting
any of Silicon’s rights or remedies), Borrower shall pay Silicon a cancellation
fee of $1,000 plus any out-of-pocket expenses incurred by Silicon, to
compensate Silicon for the anticipated costs and expenses of the cancellation.



     * to its subsidiaries or affiliates in connection with their business
with Borrower and



     5.5 Negative Covenants. Except as may be permitted in the Schedule,
Borrower shall not, without Silicon’s prior written consent (which shall be a
matter of its good faith business judgment), do any of the following: (i)
merge or consolidate with another corporation or entity; (ii) acquire any
assets, except in the ordinary course of business; (iii) enter into any other
transaction outside the ordinary course of business; (iv) sell or transfer any
Collateral, except for the sale of finished Inventory in the ordinary course of
Borrower’s business, and except for the sale of obsolete or unneeded Equipment
in the ordinary course of business; (v) store any Inventory or other Collateral
with any warehouseman or other third party; (vi) sell any



-5-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






Inventory on a
sale-or-return, guaranteed sale, consignment, or other contingent basis; (vii)
make any loans of any money or other assets/*; (viii) incur any debts, outside
the ordinary course of business, which would result in a Material Adverse
Change; (ix) guarantee or otherwise become liable with respect to the
obligations of another party or entity/**; (x) pay or declare any dividends on
Borrower’s stock (except for dividends payable solely in stock of Borrower);
(xi) redeem, retire, purchase or otherwise acquire, directly or indirectly, any
of Borrower’s stock; (xii) make any change in Borrower’s capital structure
which would result in a Material Adverse Change; or (xiii) /*** or (xiv)
dissolve or elect to dissolve. Transactions permitted by the foregoing
provisions of this Section are only permitted if no Default or Event of Default
would occur as a result of such transaction.




     *except that Borrower may (a) make loans to subsidiaries



     **except that Borrower may guarantee obligations of subsidiaries incurred
for working capital lines of credit up to an aggregate of $1,000,000 at any one
time



     *** engage in any material line of business other than those lines of
business conducted by Borrower and its subsidiaries on the date hereof and any
business reasonably related, complementary or incidental thereto or reasonable
extensions thereof, provided that Borrower will not, without prior written
notice, change its state of incorporation



     5.6 Litigation Cooperation. Should any third-party suit or proceeding be
instituted by or against Silicon with respect to any Collateral or relating to
Borrower, Borrower shall, without expense to Silicon, make available Borrower
and its officers, employees and agents and Borrower’s books and records, to the
extent that Silicon may deem them reasonably necessary in order to prosecute or
defend any such suit or proceeding.



     5.7 Further Assurances. Borrower agrees, at its expense, on request by
Silicon, to execute all documents and take all actions, as Silicon, may, in its
good faith business judgment, deem necessary or useful in order to perfect and
maintain Silicon’s perfected first-priority security interest in the Collateral
(subject to Permitted Liens), and in order to fully consummate the transactions
contemplated by this Agreement.



6. TERM.




     6.1 Maturity Date. This Agreement shall continue in effect until the
maturity date set forth on the Schedule (the “Maturity Date”), subject to
Section 6.3 below.



     6.2 Early Termination. This Agreement may be terminated prior to the
Maturity Date as follows: (i) by Borrower, effective three Business Days after
written notice of termination is given to Silicon; or (ii) by Silicon at any
time after the occurrence and during the continuance of an Event of Default,
without notice, effective immediately. If this Agreement is terminated by
Borrower or by Silicon under this Section 6.2, Borrower shall pay to Silicon a
termination fee in an amount equal to /*, provided that no termination fee shall
be charged if the credit facility hereunder is replaced with a new facility
from another division of Silicon Valley Bank. The termination fee shall be due
and payable on the effective date of termination and thereafter shall bear
interest at a rate equal to the highest rate applicable to any of the
Obligations.



     *the aggregate Unused Line Fee specified in the Schedule that would have
been paid to Silicon if the Loans and Letters of Credit that were outstanding
on the termination date remained outstanding until the Maturity Date



     6.3 Payment of Obligations. On the Maturity Date or on any earlier
effective date of termination, Borrower shall pay and perform in full all
Obligations, whether evidenced by installment notes or otherwise, and whether
or not all or any part of such Obligations are otherwise then due and payable.
Without limiting the generality of the foregoing, if on the Maturity Date, or
on any earlier effective date of termination, there are any outstanding Letters
of Credit issued by Silicon or issued
by another institution based upon an application, guarantee, indemnity or
similar agreement on the part of Silicon, then on such date Borrower shall
provide to Silicon cash collateral in an amount equal to 105% of the face
amount of all such Letters of Credit plus all interest, fees and cost due or to
become due in connection therewith (as estimated by Silicon in its good faith
business judgment), to secure all of the Obligations relating to said Letters
of Credit, pursuant to Silicon’s then standard form cash pledge agreement.
Notwithstanding any termination of this Agreement, all of Silicon’s security
interests in all of the Collateral and all of the terms and provisions of this
Agreement shall continue in full force and effect until all Obligations have
been paid and performed in full; provided that Silicon may, in its sole
discretion, refuse to make any further Loans after termination. No termination
shall in any way affect or impair any right or remedy of Silicon, nor shall any
such termination relieve Borrower of any Obligation to Silicon, until all of
the Obligations have been paid and performed in full. Upon payment and
performance in full of all the Obligations and termination of this Agreement,
Silicon shall promptly terminate its



-6-





 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






financing statements with respect to the
Borrower and deliver to Borrower such other documents as may be required to
fully terminate Silicon’s security interests.




7. EVENTS OF DEFAULT AND REMEDIES.




     7.1 Events of Default. The occurrence of any of the following events
shall constitute an “Event of Default” under this Agreement, and Borrower shall
give Silicon immediate written notice thereof: (a) Any warranty,
representation, statement, report or certificate made or delivered to Silicon
by Borrower or any of Borrower’s officers, employees or agents, now or in the
future, shall be untrue or misleading in a material respect when made or deemed
to be made; or (b) Borrower shall fail to pay when due any Loan or any interest
thereon or any other monetary Obligation/*; or (c) the total Loans and other
Obligations outstanding at any time shall exceed the Credit Limit; or (d)
Borrower shall fail to comply with any of the financial covenants set forth in
the Schedule, or shall fail to perform any other non-monetary Obligation which
by its nature cannot be cured, or shall fail to permit Silicon to conduct an
inspection or audit as specified in Section 5.4 hereof; or (e) Borrower shall
fail to perform any other non-monetary Obligation, which failure is not cured
within /** Business Days after the date due; or (f)/***; or (g) any default or
event of default occurs under any obligation secured by a Permitted Lien, which
is not cured within any applicable cure period or waived in writing by the
holder of the Permitted Lien; or (h) Borrower breaches any material contract or
obligation, which has resulted or may reasonably be expected to result in a
Material Adverse Change; or (i) dissolution, termination of existence,
insolvency or business failure of Borrower; or appointment of a receiver,
trustee or custodian, for all or any part of the property of, assignment for
the benefit of creditors by, or the commencement of any proceeding by Borrower
under any reorganization, bankruptcy, insolvency, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, now or in
the future in effect; or (j) the commencement of any proceeding against
Borrower or any guarantor of any of the Obligations under any reorganization,
bankruptcy, insolvency, arrangement, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, now or in the future in effect,
which is not cured by the dismissal thereof within 30 days after the date
commenced; or (k) revocation or termination of, or limitation or denial of
liability upon, any guaranty of the Obligations or any attempt to do any of the
foregoing, or commencement of proceedings by any guarantor of any of the
Obligations under any bankruptcy or insolvency law; or (l) revocation or
termination of, or limitation or denial of liability upon, any pledge of any
certificate of deposit, securities or other property or asset of any kind
pledged by any third party to secure any or all of the Obligations, or any
attempt to do any of the foregoing, or commencement of proceedings by or
against any such third party under any bankruptcy or insolvency law; or (m)
Borrower makes any payment on account of any indebtedness or obligation which
has been subordinated to the Obligations other than as permitted in the
applicable subordination agreement, or if any Person who has subordinated such
indebtedness or obligations terminates or in any way limits his subordination
agreement; or (n) there shall be a /****, without the prior written consent of
Silicon; or (o) Borrower shall generally not pay its debts as they become due,
or Borrower shall conceal, remove or transfer any part of its property, with
intent to hinder, delay or defraud its creditors, or make or suffer any
transfer of any of its property which may be fraudulent under any bankruptcy,
fraudulent conveyance or similar law; or (p) a Material Adverse Change shall
occur. Silicon may cease making any Loans hereunder during any of the above
cure periods, and thereafter if an Event of Default has occurred and is
continuing.



     * which failure is not cured within five Business Days after the date due



     **10



     *** if 20% or more of consolidated total assets of Borrower is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in 10 days, or if Borrower is
enjoined, restrained, or prevented by court order from conducting a material
part of its business or if a judgment or other claim becomes a Lien on a
material portion of Borrower’s assets, or if a notice of lien, levy, or
assessment is filed
against any of Borrower’s assets by any government agency and not paid
within 10 days after Borrower receives notice, provided that these are not
Events of Default if stayed or if a bond is posted pending contest by Borrower.



     **** Change in Control where “Change in Control” is a transaction in which
any “person” or “group” (within the meaning of Section 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended) becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of greater than 35% of the shares of all
classes of stock then outstanding of Borrower ordinarily entitled to vote in
the election of directors.



-7-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     7.2 Remedies. Upon the occurrence and during the continuance of any
Event of Default, and at any time thereafter, Silicon, at its option, and
without notice or demand of any kind (all of which are hereby expressly waived
by Borrower), may do any one or more of the following: (a) Cease making Loans
or otherwise extending credit to Borrower under this Agreement or any other
Loan Document; (b) Accelerate and declare all or any part of the Obligations to
be immediately due, payable, and performable, notwithstanding any deferred or
installment payments allowed by any instrument evidencing or relating to any
Obligation; (c) Take possession of any or all of the Collateral wherever it may
be found, and for that purpose Borrower hereby authorizes Silicon without
judicial process to enter onto any of Borrower’s premises without interference
to search for, take possession of, keep, store, or remove any of the
Collateral, and remain on the premises or cause a custodian to remain on the
premises in exclusive control thereof, without charge for so long as Silicon
deems it necessary, in its good faith business judgment, in order to complete
the enforcement of its rights under this Agreement or any other agreement;
provided, however, that should Silicon seek to take possession of any of the
Collateral by court process, Borrower hereby irrevocably waives: (i) any bond
and any surety or security relating thereto required by any statute, court rule
or otherwise as an incident to such possession; (ii) any demand for possession
prior to the commencement of any suit or action to recover possession thereof;
and (iii) any requirement that Silicon retain possession of, and not dispose
of, any such Collateral until after trial or final judgment; (d) Require
Borrower to assemble any or all of the Collateral and make it available to
Silicon at places designated by Silicon which are reasonably convenient to
Silicon and Borrower, and to remove the Collateral to such locations as Silicon
may deem advisable; (e) Complete the processing, manufacturing or repair of any
Collateral prior to a disposition thereof and, for such purpose and for the
purpose of removal, Silicon shall have the right to use Borrower’s premises,
vehicles, hoists, lifts, cranes, and other Equipment and all other property
without charge; (f) Sell, lease or otherwise dispose of any of the Collateral,
in its condition at the time Silicon obtains possession of it or after further
manufacturing, processing or repair, at one or more public and/or private
sales, in lots or in bulk, for cash, exchange or other property, or on credit,
and to adjourn any such sale from time to time without notice other than oral
announcement at the time scheduled for sale. Silicon shall have the right to
conduct such disposition on Borrower’s premises without charge, for such time
or times as Silicon deems reasonable, or on Silicon’s premises, or elsewhere
and the Collateral need not be located at the place of disposition. Silicon
may directly or through any affiliated company purchase or lease any Collateral
at any such public disposition, and if permissible under applicable law, at any
private disposition. Any sale or other disposition of Collateral shall not
relieve Borrower of any liability Borrower may have if any Collateral is
defective as to title or physical condition or otherwise at the time of sale;
(g) Demand payment of, and collect any Accounts and General Intangibles
comprising Collateral and, in connection therewith, Borrower irrevocably
authorizes Silicon to endorse or sign Borrower’s name on all collections,
receipts, instruments and other documents, to take possession of and open mail
addressed to Borrower and remove therefrom payments made with respect to any
item of the Collateral or proceeds thereof, and, in Silicon’s good faith
business judgment, to grant extensions of time to pay, compromise claims and
settle Accounts and the like for less than face value; (h) Offset against any
sums in any of Borrower’s general, special or other Deposit Accounts with
Silicon against any or all of the Obligations; and (i) Demand and receive
possession of any of Borrower’s federal and state income tax returns and the
books and records utilized in the preparation thereof or referring thereto.
All reasonable attorneys’ fees, expenses, costs, liabilities and obligations
incurred by Silicon with respect to the foregoing shall be added to and become
part of the Obligations, shall be due on demand, and shall bear interest at a
rate equal to the highest interest rate applicable to any of the Obligations.
Without limiting any of Silicon’s rights and remedies, from and after the
occurrence and during the continuance of any Event of Default, the interest
rate applicable to the Obligations shall be increased by an additional three
percent per annum (the “Default Rate”).



     7.3 Standards for Determining Commercial Reasonableness. Borrower and
Silicon agree that a sale or other disposition (collectively, “sale”) of any
Collateral which complies with the following standards will conclusively be
deemed to be commercially reasonable: (i) Notice of the sale is given to
Borrower at least ten days prior to the sale, and, in the case of a public
sale, notice of the sale is published at least five days before the sale in a
newspaper of general circulation in the county where the sale is to be
conducted; (ii) Notice of the sale describes the collateral in general,
non-specific terms; (iii) The sale is conducted at a place designated by
Silicon, with or without the Collateral being present; (iv) The sale commences
at any time between 8:00 a.m. and 6:00 p.m; (v) Payment of the purchase price
in cash or by cashier’s check or
wire transfer is required; (vi) With respect to any sale of any of the
Collateral, Silicon may (but is not obligated to) direct any prospective
purchaser to ascertain directly from Borrower any and all information
concerning the same. Silicon shall be free to employ other methods of noticing
and selling the Collateral, in its discretion, if they are commercially
reasonable.



     7.4 Power of Attorney. Upon the occurrence and during the continuance of
any Event of Default, without limiting Silicon’s other rights and remedies,
Borrower grants to Silicon an irrevocable power of attorney coupled with an
interest, authorizing and permitting Silicon (acting through any of its
employees, attorneys or agents) at any time, at its option, but without
obligation, with or without notice to Borrower, and at Borrower’s expense, to
do any or all of the following, in Borrower’s name or otherwise, but Silicon
agrees that if it exercises any right hereunder, it will do so in good faith
and in a commercially reasonable manner: (a) Execute on behalf of Borrower any
documents that Silicon may, in its good faith business judgment, deem advisable
in order to perfect and maintain Silicon’s security interest in the Collateral,
or in order to



-8-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






exercise a right of Borrower or Silicon, or in order to fully
consummate all the transactions contemplated under this Agreement, and all
other Loan Documents; (b) Execute on behalf of Borrower, any invoices relating
to any Account, any draft against any Account Debtor and any notice to any
Account Debtor, any proof of claim in bankruptcy, any Notice of Lien, claim of
mechanic’s, materialman’s or other lien, or assignment or satisfaction of
mechanic’s, materialman’s or other lien; (c) Take control in any manner of any
cash or non-cash items of payment or proceeds of Collateral; endorse the name
of Borrower upon any instruments, or documents, evidence of payment or
Collateral that may come into Silicon’s possession; (d) Endorse all checks and
other forms of remittances received by Silicon; (e) Pay, contest or settle any
lien, charge, encumbrance, security interest and adverse claim in or to any of
the Collateral, or any judgment based thereon, or otherwise take any action to
terminate or discharge the same; (f) Grant extensions of time to pay,
compromise claims and settle Accounts and General Intangibles for less than
face value and execute all releases and other documents in connection
therewith; (g) Pay any sums required on account of Borrower’s taxes or to
secure the release of any liens therefor, or both; (h) Settle and adjust, and
give releases of, any insurance claim that relates to any of the Collateral and
obtain payment therefor; (i) Instruct any third party having custody or control
of any books or records belonging to, or relating to, Borrower to give Silicon
the same rights of access and other rights with respect thereto as Silicon has
under this Agreement; and (j) Take any action or pay any sum required of
Borrower pursuant to this Agreement and any other Loan Documents. Any and all
reasonable sums paid and any and all reasonable costs, expenses, liabilities,
obligations and attorneys’ fees incurred by Silicon with respect to the
foregoing shall be added to and become part of the Obligations, shall be
payable on demand, and shall bear interest at a rate equal to the highest
interest rate applicable to any of the Obligations. In no event shall
Silicon’s rights under the foregoing power of attorney or any of Silicon’s
other rights under this Agreement be deemed to indicate that Silicon is in
control of the business, management or properties of Borrower.




     7.5 Application of Proceeds. All proceeds realized as the result of any
sale of the Collateral shall be applied by Silicon first to the reasonable
costs, expenses, liabilities, obligations and attorneys’ fees incurred by
Silicon in the exercise of its rights under this Agreement, second to the
interest due upon any of the Obligations, and third to the principal of the
Obligations, in such order as Silicon shall determine in its sole discretion.
Any surplus shall be paid to Borrower or other persons legally entitled
thereto; Borrower shall remain liable to Silicon for any deficiency. If,
Silicon, in its good faith business judgment, directly or indirectly enters
into a deferred payment or other credit transaction with any purchaser at any
sale of Collateral, Silicon shall have the option, exercisable at any time, in
its good faith business judgment, of either reducing the Obligations by the
principal amount of purchase price or deferring the reduction of the
Obligations until the actual receipt by Silicon of the cash therefor.



     7.6 Remedies Cumulative. In addition to the rights and remedies set
forth in this Agreement, Silicon shall have all the other rights and remedies
accorded a secured party under the California Uniform Commercial Code and under
all other applicable laws, and under any other instrument or agreement now or
in the future entered into between Silicon and Borrower, and all of such rights
and remedies are cumulative and none is exclusive. Exercise or partial
exercise by Silicon of one or more of its rights or remedies shall not be
deemed an election, nor bar Silicon from subsequent exercise or partial
exercise of any other rights or remedies. The failure or delay of Silicon to
exercise any rights or remedies shall not operate as a waiver thereof, but all
rights and remedies shall continue in full force and effect until all of the
Obligations have been fully paid and performed.



8. DEFINITIONS. As used in this Agreement, the following terms have the
following meanings:



     “Account Debtor” means the obligor on an Account.



     “Accounts” means all present and future “accounts” as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without
limitation all accounts receivable and other sums owing to Borrower.



     “Affiliate” means, with respect to any Person, a relative, partner,
shareholder, director, officer, or employee of such Person, or any parent or
subsidiary of such Person, or any Person controlling, controlled by or under
common control with such Person.



     “Business Day” means a day on which Silicon is open for business.



     “Code” means the Uniform Commercial Code as adopted and in effect in the
State of California from time to time.



     “Collateral” has the meaning set forth in Section 2 above.



     “continuing” and “during the continuance of” when used with reference to a
Default or Event of Default means that the Default or Event of Default has
occurred and has not been either waived in writing by Silicon or cured within
any applicable cure period.



     “Default” means any event which with notice or passage of time or both,
would constitute an Event of Default.



-9-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     “Default Rate” has the meaning set forth in Section 7.2 above.



     “Deposit Accounts” means all present and future “deposit accounts” as
defined in the California Uniform Commercial Code in effect on the date hereof
with such additions to such term as may hereafter be made, and includes,
without limitation, all general and special bank accounts, demand accounts,
checking accounts, savings accounts and certificates of deposit.



     “Eligible Accounts” means Accounts and General Intangibles arising in the
ordinary course of Borrower’s business from the sale of goods or the rendition
of services, or the non-exclusive licensing of Intellectual Property, which
Silicon, in its good faith business judgment, shall deem eligible for
borrowing. Without limiting the fact that the determination of which Accounts
are eligible for borrowing is a matter of Silicon’s good faith business
judgment, the following (the “Minimum Eligibility Requirements”) are the
minimum requirements for a Account to be an Eligible Account: (i) the Account
must not be outstanding for more than 90 days from its invoice date (the
“Eligibility Period”), (ii) the Account must not represent progress billings,
or be due under a fulfillment or requirements contract with the Account Debtor,
(iii) the Account must not be subject to any contingencies (including Accounts
arising from sales on consignment, guaranteed sale or other terms pursuant to
which payment by the Account Debtor may be conditional), (iv) the Account must
not be owing from an Account Debtor with whom Borrower has any dispute (whether
or not relating to the particular Account), (v) the Account must not be owing
from an Affiliate of Borrower, (vi) the Account must not be owing from an
Account Debtor which is subject to any insolvency or bankruptcy proceeding, or
whose financial condition is not acceptable to Silicon, or which, fails or goes
out of a material portion of its business, (vii) the Account must not be owing
from the United States or any department, agency or instrumentality thereof
(unless there has been compliance, to Silicon’s satisfaction, with the United
States Assignment of Claims Act), (viii) the Account must not be owing from an
Account Debtor located outside the United States or Canada (unless pre-approved
by Silicon in its discretion in writing, or backed by a letter of credit
satisfactory to Silicon, or FCIA insured satisfactory to Silicon), (ix) the
Account must not be owing from an Account Debtor to whom Borrower is or may be
liable for goods purchased from such Account Debtor or otherwise (but, in such
case, the Account will be deemed not eligible only to the extent of any amounts
owed by Borrower to such Account Debtor). Accounts owing from one Account
Debtor will not be deemed Eligible Accounts to the extent they exceed 25% of
the total Accounts outstanding. In addition, if more than 50% of the Accounts
owing from an Account Debtor are outstanding for a period longer than their
Eligibility Period (without regard to unapplied credits) or are otherwise not
eligible Accounts, then all Accounts owing from that Account Debtor will be
deemed ineligible for borrowing. Silicon may, from time to time, in its good
faith business judgment, revise the Minimum Eligibility Requirements, upon
written notice to Borrower/*.



     *,and if, after giving effect to any such revision, the total Loans
outstanding exceed the credit limit specified in the Schedule, Borrower shall
have 15 days to repay any such excess



     “Equipment” means all present and future “equipment” as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without
limitation all machinery, fixtures, goods, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing.



     “Event of Default” means any of the events set forth in Section 7.1 of
this Agreement.



     “GAAP” means generally accepted accounting principles consistently
applied.



     “General Intangibles” means all present and future “general intangibles”
as defined in the California Uniform Commercial Code in effect on the date
hereof with such additions to such term as may hereafter be made, and includes
without limitation all Intellectual Property, payment intangibles, royalties,
contract rights, goodwill, franchise agreements, purchase orders, customer
lists, route lists, telephone numbers, domain names, claims, income tax
refunds, security and other deposits, options to purchase or sell real or
personal property, rights in all litigation presently or hereafter pending
(whether in contract, tort or otherwise), insurance policies (including
without limitation key man, property damage, and business interruption
insurance), payments of insurance and rights to payment of any kind.



     “good faith business judgment” means honesty in fact and good faith (as
defined in Section 1201 of the Code) in the exercise of Silicon’s business
judgment.



     “including” means including (but not limited to).



     “Intellectual Property” means all present and future (a) copyrights,
copyright rights, copyright applications, copyright registrations and like
protections in each work of authorship and derivative work thereof, whether
published or unpublished, (b) trade secret rights, including all rights to
unpatented inventions and know-how, and confidential information; (c) mask work
or similar rights available for the protection of semiconductor chips; (d)
patents, patent applications and like protections including without limitation
improvements, divisions, continuations, renewals, reissues, extensions and
continuations-in-part of the same; (e) trademarks, servicemarks, trade styles,
and trade names, whether or not any of the foregoing are registered, and all
applications to register and registrations of the same and like protections,
and the entire goodwill of the business of Borrower connected with and
symbolized by any such trademarks; (f) computer software and computer software
products; (g)



-10-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     






designs and design rights; (h) technology; (i) all claims for
damages by way of past, present and future infringement of any of the rights
included above; (j) all licenses or other rights to use any property or rights
of a type described above.




     “Inventory” means all present and future “inventory” as defined in the
California Uniform Commercial Code in effect on the date hereof with such
additions to such term as may hereafter be made, and includes without
limitation all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products, including without
limitation such inventory as is temporarily out of Borrower’s custody or
possession or in transit and including any returned goods and any documents of
title representing any of the above.



     “Investment Property” means all present and future investment property,
securities, stocks, bonds, debentures, debt securities, partnership interests,
limited liability company interests, options, security entitlements, securities
accounts, commodity contracts, commodity accounts, and all financial assets
held in any securities account or otherwise, and all options and warrants to
purchase any of the foregoing, wherever located, and all other securities of
every kind, whether certificated or uncertificated.



     “Loan Documents” means, collectively, this Agreement, the Representations,
and all other present and future documents, instruments and agreements between
Silicon and Borrower, including, but not limited to those relating to this
Agreement, and all amendments and modifications thereto and replacements
therefor.



     “Material Adverse Change” means any of the following: (i) a material
adverse change in the business, operations, or financial or other condition of
the Borrower, or (ii) a material impairment of the prospect of repayment of any
portion of the Obligations; or (iii) a material impairment of the value or
priority of Silicon’s security interests in the Collateral.



     “Obligations” means all present and future Loans, advances, debts,
liabilities, obligations, guaranties, covenants, duties and indebtedness at any
time owing by Borrower to Silicon, whether evidenced by this Agreement or any
note or other instrument or document, or otherwise, whether arising from an
extension of credit, opening of a letter of credit, banker’s acceptance, loan,
guaranty, indemnification or otherwise, whether direct or indirect (including,
without limitation, those acquired by assignment and any participation by
Silicon in Borrower’s debts owing to others), absolute or contingent, due or to
become due, including, without limitation, all interest, charges, expenses,
fees, attorney’s fees, expert witness fees, audit fees, letter of credit fees,
collateral monitoring fees, closing fees, facility fees, termination fees,
minimum interest charges and any other sums chargeable to Borrower under this
Agreement or under any other Loan Documents.



     “Other Property” means the following as defined in the California Uniform
Commercial Code in effect on the date hereof with such additions to such term
as may hereafter be made, and all rights relating thereto: all present and
future “commercial tort claims” (including without limitation any commercial
tort claims identified in the Representations), “documents”, “instruments”,
“promissory notes”, “chattel paper”, “letters of credit”, “letter-of-credit
rights”, “fixtures”, “farm products” and “money”; and all other goods and
personal property of every kind, tangible and intangible, whether or not
governed by the California Uniform Commercial Code.



     “Payment” means all checks, wire transfers and other items of payment
received by Silicon (including proceeds of Accounts and payment of the
Obligations in full) for credit to Borrower’s outstanding Loans or, if the
balance of the Loans have been reduced to zero, for credit to its Deposit
Accounts.



     “Permitted Liens” means the following: (i) purchase money security
interests in specific items of Equipment; (ii) leases of specific items of
Equipment; (iii) liens for taxes not yet payable; (iv) additional security
interests and liens consented to
in writing by Silicon, which consent may be withheld in its good faith
business judgment; (v) security interests being terminated substantially
concurrently with this Agreement; (vi) liens of materialmen, mechanics,
warehousemen, carriers, or other similar liens arising in the ordinary course
of business and securing obligations which are not delinquent; (vii) liens
incurred in connection with the extension, renewal or refinancing of the
indebtedness secured by liens of the type described above in clauses (i) or
(ii) above, provided that any extension, renewal or replacement lien is limited
to the property encumbered by the existing lien and the principal amount of the
indebtedness being extended, renewed or refinanced does not increase; and
(viii) Liens in favor of customs and revenue authorities which secure payment
of customs duties in connection with the importation of goods/*. Silicon will
have the right to require, as a condition to its consent under subparagraph
(iv) above, that the holder of the additional security interest or lien sign an
intercreditor agreement on Silicon’s then standard form, acknowledge that the
security interest is subordinate to the security interest in favor of Silicon,
and agree not to take any action to enforce its subordinate security interest
so long as any Obligations remain outstanding, and that Borrower agree that any
uncured default in any obligation secured by the subordinate security interest
shall also constitute an Event of Default under this Agreement.



     *and as otherwise provided in the Schedule



     “Person” means any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
government, or any agency or political division thereof, or any other entity.



-11-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     “Representations” means the written Representations and Warranties
provided by Borrower to Silicon referred to in the Schedule.



     “Reserves” means, as of any date of determination, such amounts as Silicon
may from time to time establish and revise in its good faith business judgment,
reducing the amount of Loans, Letters of Credit and other financial
accommodations which would otherwise be available to Borrower under the lending
formula(s) provided in the Schedule: (a) to reflect events, conditions,
contingencies or risks which, as determined by Silicon in its good faith
business judgment, do or may adversely affect (i) the Collateral or any other
property which is security for the Obligations or its value (including without
limitation any increase in delinquencies of Accounts), (ii) the assets,
business or prospects of Borrower or any Guarantor, or (iii) the security
interests and other rights of Silicon in the Collateral (including the
enforceability, perfection and priority thereof); or (b) to reflect Silicon’s
good faith belief that any collateral report or financial information furnished
by or on behalf of Borrower or any Guarantor to Silicon is or may have been
incomplete, inaccurate or misleading in any material respect; or (c) in respect
of any state of facts which Silicon determines in good faith constitutes an
Event of Default or may, with notice or passage of time or both, constitute an
Event of Default.



     Other Terms. All accounting terms used in this Agreement, unless
otherwise indicated, shall have the meanings given to such terms in accordance
with GAAP, consistently applied. All other terms contained in this Agreement,
unless otherwise indicated, shall have the meanings provided by the Code, to
the extent such terms are defined therein.



9. GENERAL PROVISIONS.



     9.1 Interest Computation. In computing interest on the
Obligations, all Payments received after 12:00 Noon/* on any day shall be
deemed received on the next Business Day. Silicon shall not, however, be
required to credit Borrower’s account for the amount of any item of payment,
which is unsatisfactory to Silicon in its good faith business judgment, and
Silicon may charge Borrower’s loan account for the amount of any item of
payment which is returned to Silicon unpaid.




	*	 	(Pacific Standard Time)





     9.2 Application of Payments. All payments with respect to the
Obligations may be applied, and in Silicon’s good faith business judgment
reversed and re-applied, to the Obligations, in such order and manner as
Silicon shall determine in its good faith business judgment.



     9.3 Charges to Accounts. Silicon may, in its discretion, require that
Borrower pay monetary Obligations in cash to Silicon, or charge them to
Borrower’s Loan account, in which event they will bear interest at the same
rate applicable to the Loans. Silicon may also, in its discretion, charge any
monetary Obligations to Borrower’s Deposit Accounts maintained with Silicon.



     9.4 Monthly Accountings. Silicon shall provide Borrower monthly with an
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrower and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Silicon),
unless Borrower notifies Silicon in writing to the contrary within 60 days
after such account is rendered, describing the nature of any alleged errors or
omissions.



     9.5 Notices. All notices to be given under this Agreement shall be in
writing and shall be given either personally or by reputable private delivery
service or by regular first-class mail, or certified mail return receipt
requested, addressed to Silicon or Borrower at the addresses shown in the
heading to this Agreement, or at any other address designated in writing by one
party to the other party. Notices to Silicon shall be directed to the
Commercial Finance Division, to the attention of the Division Manager or the
Division Credit Manager. All notices shall be deemed to have been given upon
delivery in the case of notices personally delivered, or at the expiration of
one Business Day following delivery to the private delivery service, or two
Business Days following the deposit thereof in the United States mail, with
postage prepaid.



     9.6 Severability. Should any provision of this Agreement be held by any
court of competent jurisdiction to be void or unenforceable, such defect shall
not affect the remainder of this Agreement, which shall continue in full force
and effect.



     9.7 Integration. This Agreement and such other written agreements,
documents and instruments as may be executed in connection herewith are the
final, entire and complete agreement between Borrower and Silicon and supersede
all prior and contemporaneous negotiations and oral representations and
agreements, all of which are merged and integrated in this Agreement. There
are no oral understandings, representations or agreements between the parties
which are not set forth in this Agreement or in other written agreements signed
by the parties in connection herewith.



-12-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     9.8 Waivers; Indemnity. The failure of Silicon at any time or times to
require Borrower to strictly comply with any of the provisions of this
Agreement or any other Loan Document shall not waive or diminish any right of
Silicon later to demand and receive strict compliance therewith. Any waiver of
any default shall not waive or affect any other default, whether prior or
subsequent, and whether or not similar. None of the provisions of this
Agreement or any other Loan Document shall be deemed to have been waived by any
act or knowledge of Silicon or its agents or employees, but only by a specific
written waiver signed by an authorized officer of Silicon and delivered to
Borrower. Borrower waives the benefit of all statutes of limitations relating
to any of the Obligations or this Agreement or any other Loan Document, and
Borrower waives demand, protest, notice of protest and notice of default or
dishonor, notice of payment and nonpayment, release, compromise, settlement,
extension or renewal of any commercial paper, instrument, account, General
Intangible, document or guaranty at any time held by Silicon on which Borrower
is or may in any way be liable, and notice of any action taken by Silicon,
unless expressly required by this Agreement. Borrower hereby agrees to
indemnify Silicon and its affiliates, subsidiaries, parent, directors,
officers, employees, agents, and attorneys, and to hold them harmless from and
against any and all claims, debts, liabilities, demands, obligations, actions,
causes of action, penalties, costs and expenses (including reasonable
attorneys’ fees), of every kind, which they may sustain or incur based upon or
arising out of any of the Obligations, or any relationship or agreement between
Silicon and Borrower, or any other matter, relating to Borrower or the
Obligations; provided that this indemnity shall not extend to damages
proximately caused by the indemnitee’s own gross negligence or willful
misconduct. Notwithstanding any provision in this Agreement to the contrary,
the indemnity agreement set forth in this Section shall survive any termination
of this Agreement and shall for all purposes continue in full force and effect.



     9.9 No Liability for Ordinary Negligence. Neither Silicon, nor any of
its directors, officers, employees, agents, attorneys or any other Person
affiliated with or representing Silicon shall be liable for any claims,
demands, losses or damages, of any kind whatsoever, made, claimed, incurred or
suffered by Borrower or any other party through the ordinary negligence of
Silicon, or any of its directors, officers, employees, agents, attorneys or any
other Person affiliated with or representing Silicon, but nothing herein shall
relieve Silicon from liability for its own gross negligence or willful
misconduct.



     9.10 Amendment. The terms and provisions of this Agreement may not be
waived or amended, except in a writing executed by Borrower and a duly
authorized officer of Silicon.



     9.11 Time of Essence. Time is of the essence in the performance by
Borrower of each and every obligation under this Agreement.



     9.12 Attorneys Fees and Costs. Borrower shall reimburse Silicon for all
reasonable attorneys’ fees and all filing, recording, search, title insurance,
appraisal, audit, and other reasonable costs incurred by Silicon, pursuant to,
or in connection with, or relating to this Agreement (whether or not a lawsuit
is filed), including, but not limited to, any reasonable attorneys’ fees and
costs Silicon incurs in order to do the following: prepare and negotiate this
Agreement and all present and future documents relating to this Agreement;
obtain legal advice in connection with this Agreement or Borrower; enforce, or
seek to enforce, any of its rights; prosecute actions against, or defend
actions by, Account Debtors; commence, intervene in, or defend any action or
proceeding; initiate any complaint to be relieved of the automatic stay in
bankruptcy; file or prosecute any probate claim, bankruptcy claim, third-party
claim, or other claim; examine, audit, copy,
and inspect any of the Collateral or any of Borrower’s books and records;
protect, obtain possession of, lease, dispose of, or otherwise enforce
Silicon’s security interest in, the Collateral; and otherwise represent Silicon
in any litigation relating to Borrower. In satisfying Borrower’s obligation
hereunder to reimburse Silicon for attorneys fees, Borrower may, for
convenience, issue checks directly to Silicon’s attorneys, but Borrower
acknowledges and agrees that /*representing only Silicon and not Borrower in
connection with this Agreement. If either Silicon or Borrower files any
lawsuit against the other predicated on a breach of this Agreement, the
prevailing party in such action shall be entitled to recover its reasonable
costs and attorneys’ fees, including (but not limited to) reasonable attorneys’
fees and costs incurred in the enforcement of, execution upon or defense of any
order, decree, award or judgment. All attorneys’ fees and costs to which
Silicon may be entitled pursuant to this Paragraph shall immediately become
part of Borrower’s Obligations, shall be due on demand, and shall bear interest
at a rate equal to the highest interest rate applicable to any of the
Obligations.



     *Silicon’s attorneys are



     9.13 Benefit of Agreement. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors, assigns,
heirs, beneficiaries and representatives of Borrower and Silicon; provided,
however, that Borrower may not assign or transfer any of its rights under this
Agreement without the prior written consent of Silicon, and any prohibited
assignment shall be void. No consent by Silicon to any assignment shall
release Borrower from its liability for the Obligations.



     9.14 Joint and Several Liability. If Borrower consists of more than one
Person, their liability shall be joint and several, and the compromise of any
claim with, or the release of, any Borrower shall not constitute a compromise
with, or a release of, any other Borrower.



-13-




 









 








	 	 	 
	Silicon Valley Bank

	 	Loan and Security Agreement     







     9.15 Limitation of Actions. Any claim or cause of action by Borrower
against Silicon, its directors, officers, employees, agents, accountants or
attorneys, based upon, arising from, or relating to this Loan Agreement, or any
other Loan Document, or any other transaction contemplated hereby or thereby or
relating hereto or thereto, or any other matter, cause or thing whatsoever,
occurred, done, omitted or suffered to be done by Silicon, its directors,
officers, employees, agents, accountants or attorneys, shall be barred unless
asserted by Borrower by the commencement of an action or proceeding in a court
of competent jurisdiction by the filing of a complaint within one year after
the first act, occurrence or omission upon which such claim or cause of action,
or any part thereof, is based, and the service of a summons and complaint on an
officer of Silicon, or on any other person authorized to accept service on
behalf of Silicon, within thirty (30) days thereafter. Borrower agrees that
such one-year period is a reasonable and sufficient time for Borrower to
investigate and act upon any such claim or cause of action. The one-year
period provided herein shall not be waived, tolled, or extended except by the
written consent of Silicon in its sole discretion. This provision shall
survive any termination of this Loan Agreement or any other Loan Document.



     9.16 Paragraph Headings; Construction. Paragraph headings are only used
in this Agreement for convenience. Borrower and Silicon acknowledge that the
headings may not describe completely the subject matter of the applicable
paragraph, and the headings shall not be used in any manner to construe, limit,
define or interpret any term or provision of this Agreement. This Agreement has
been fully reviewed and negotiated between the parties and no uncertainty or
ambiguity in any term or provision of this Agreement shall be construed
strictly against Silicon or Borrower under any rule of construction or
otherwise.



     9.17 Governing Law; Jurisdiction; Venue. This Agreement and all acts and
transactions hereunder and all rights and obligations of Silicon and Borrower
shall be governed by the laws of the State of California. As a material part
of the consideration to Silicon to enter into this Agreement, Borrower (i)
agrees that all actions and proceedings relating directly or indirectly to this
Agreement shall, at Silicon’s option, be litigated in courts located within
California, and that the exclusive venue therefor shall be Santa Clara County;
(ii) consents to the jurisdiction and venue of any such court and consents to
service of process in any such action or proceeding by personal delivery or any
other method permitted by law; and (iii) waives any and all rights Borrower may
have to object to the jurisdiction of any such court, or to transfer or change
the venue of any such action or proceeding.



     9.18 Mutual Waiver of Jury Trial. BORROWER AND SILICON EACH HEREBY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT
OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE
INSTRUMENT OR AGREEMENT BETWEEN SILICON AND BORROWER, OR ANY CONDUCT, ACTS OR
OMISSIONS OF SILICON OR BORROWER OR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH SILICON OR
BORROWER, IN ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT
OR OTHERWISE.



	 	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	Silicon:
	 
	 	 	 	 	 	 	 	 
	     THREE-FIVE SYSTEMS, INC.	 	SILICON VALLEY BANK
	 
	 	 	 	 	 	 	 	 
	By

	/s/ Jeffrey D. Buchanan	 	By	/s/ Kevin L. Grossman
	 	
 
	 	 	
 
	 	President or Vice President
	 	Title	Senior Vice President
	 
	 	 	 	 	 	 	

	By
	/s/ George A. Pisaruk	 	 	 	 
	 	
 	 	 	 	 
	

	Secretary or Ass’t Secretary	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	TFS ELECTRONIC MANUFACTURING SERVICES,

INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By
	/s/ Jeffrey D. Buchanan	 	 	 	 
	

	
 	 	 	 	 
	 	President or Vice
President	 	 	 	 
	By
	/s/ George A. Pisaruk	 	 	 	 
	 	
 	 	 	 	 
		Secretary or
Ass’t Secretary	 	 	 	 




Form : -3(3/7/02)

Version - 4




-14-





 










 





Silicon Valley Bank




Schedule to




Loan and Security Agreement




	 	 	 	 	 	 	 
	Borrower:

	 	Three-Five Systems, Inc.
	 	and
	 	TFS Electronic Manufacturing

Services, Inc.
	Address:

	 	1600 North Desert Drive

Tempe, AZ 85281
	 	 	 	6640 185th Avenue N.E.

Redmond, WA 98052
	 	 		 	 	 	 
	Date:

	 	June ________, 2004	 	 	 	 






This Schedule forms an integral part of the Loan and Security Agreement between
Silicon Valley Bank and the above-named borrowers of even date, which borrowers
are jointly and severally liable for all Obligations.




	 	 	 
	1. CREDIT LIMIT

    (Section 1.1):

	 	An amount not to exceed the lesser of: (i) $10,000,000.00 at
any one time outstanding (the “Maximum Credit Limit”); or (ii) the sum
of (a) and (b) and (c) below:
	 
	 	 
	

	 	      (a) 80% (an “Advance Rate”) of the amount of
Borrower’s Eligible Accounts (as defined in Section 8
above) billed from Borrower’s Tempe, AZ and Redmond,
WA offices, plus
	 
	 	 
	

	 	      (b) 80% (an “Advance Rate”) of Borrower’s
Eligible Accounts owing from an Account Debtor
located outside the United States or Canada which are
otherwise Eligible Accounts up to $2,000,000.00 (and
any amounts of such foreign Accounts exceeding
$2,000,000.00 must be pre-approved by Silicon in its
discretion in writing, or backed by a letter of
credit satisfactory to Silicon or FCIA insured
satisfactory to Silicon to be included).
	 
	 	 
	

	 	        Silicon may, from time to time, modify the
Advance Rates, in its good faith business judgment,
upon notice to the Borrower, based on changes in
collection experience with respect to Accounts, its
evaluation of other issues or factors relating to the
Accounts or other Collateral, and if, after giving
effect to any such modification, the total Loans
outstanding exceed the credit limit specified above,
Borrower shall have 15 days to repay any such excess.
In addition, Silicon may, in its sole discretion,
reserve against Loans which would otherwise be
available hereunder such sums as Silicon shall
determine in its good

















 






	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement







	 	 	 
	 	 	faith business judgment in
connection with accounts payable which are outstanding
for more than 60 days from their respective invoice
dates.








	 	 	 
	Letter of Credit Sublimit
(Section 1.6):

	 	A face principal amount outstanding of up to $3,500,000.00,
provided that the aggregate of all Letters of Credit outstanding from
time to time plus obligations for Cash Management Services defined
below plus 10% of the total of FX Forward Contracts defined below
outstanding from time to time shall not, at any time, exceed
$3,500,000.00.
	 
	 	 







	 	 	 
	Cash Management

Sublimit:

	 	$3,500,000.00, provided that the aggregate of all
Letters of Credit outstanding from time to time
plus obligations for Cash Management Services
defined below plus 10% of the total of FX Forward
Contracts defined below outstanding from time to
time shall not, at any time, exceed $3,500,000.00.
	 
	 	 
	Cash Management

Services and Reserves:

	 	Borrower may use Loans available hereunder, up to
the Cash Management Sublimit set forth above, for
Silicon’s Cash Management Services (as defined
below), including, merchant services, business
credit card, ACH and other services identified in
the cash management services agreement related to
such service (the “Cash Management Services”).
Silicon may, in its sole discretion, reserve
against Loans which would otherwise be available
hereunder such sums as Silicon shall determine in
its good faith business judgment in connection with
the Cash Management Services, and Silicon may
charge to Borrower’s Loan account, any amounts that
may become due or owing to Silicon in connection
with the Cash Management Services. Borrower agrees
to execute and deliver to Silicon all standard form
applications and agreements of Silicon in
connection with the Cash Management Services, and,
without limiting any of the terms of such
applications and agreements, Borrower will pay all
standard fees and charges of Silicon in connection
with the Cash Management Services. The Cash
Management Services shall terminate on the Maturity
Date.
	 
	 	 
	Foreign Exchange

Contract Sublimit:

	 	$3,500,000.00, provided that the aggregate of all
Letters of Credit outstanding from time to time
plus obligations for Cash Management Services plus
10% of the total of FX Forward Contracts defined
below outstanding from time to time shall not, at
any time, exceed $3,500,000.00.
	 
	 	 
	FX Forward Contracts:

	 	Borrower may enter into foreign exchange forward
contracts with Silicon, on its standard forms,
under which Borrower commits to purchase from or
sell to Silicon a set amount of foreign currency
more







-2-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement








	 	 	 
	

	 	than one business day after the contract date
(the “FX Forward Contracts”); provided that (1) at
the time the FX Forward Contract is entered into
Borrower has Loans available to it under this
Agreement in an amount at least equal to 10% of the
amount of the FX Forward Contract; (2) the total FX
Forward Contracts at any one time outstanding may
not exceed 10 times the amount of the Foreign
Exchange Contract Sublimit set forth above. Silicon
shall have the right to withhold, from the Loans
otherwise available to Borrower under this
Agreement, a reserve (which shall be in addition to
all other reserves) in an amount equal to 10% of
the total FX Forward Contracts from time to time
outstanding, and in the event at any time there are
insufficient Loans available to Borrower for such
reserve, Borrower shall deposit and maintain with
Silicon cash collateral in an amount at all times
equal to such deficiency, which shall be held as
Collateral for all purposes of this Agreement. Silicon may, in its
discretion, terminate the FX Forward Contracts at any
time that an Event of Default occurs and is
continuing. Borrower shall execute all standard form
applications and agreements of Silicon in connection
with the FX Forward Contracts, and without limiting
any of the terms of such applications and agreements,
Borrower shall pay all standard fees and charges of
Silicon in connection with the FX Forward Contracts.







	 	 	 
	 
	 	 
	2. INTEREST.
	 	 
	 
	 	 
	Interest
Rate (Section 1.2):
	 	 
	 
	 	 
	

	 	A rate equal to the “Prime Rate” in effect from time
to time, plus 0.75% per annum, provided that the
interest rate in effect on any day shall not be less
than 4.75% per annum. Interest shall be calculated
on the basis of a 360-day year for the actual number
of days elapsed. “Prime Rate” means the rate
announced from time to time by Silicon as its “prime
rate;” it is a base rate upon which other rates
charged by Silicon are based, and it is not
necessarily the best rate available at Silicon. The
interest rate applicable to the Obligations shall
change on each date there is a change in the Prime
Rate. The interest rate is subject to the potential
increases described in Section 5 below.
	 
	 	 
	3. FEES
(Section 1.4):
	 	 
	 
	 	 
	Loan Fee:

	 	$62,500.00, payable concurrently herewith.
	 
	 	 
	Unused Line Fee:

	 	In the event, in any calendar month (or portion thereof
at the beginning and end of the term hereof), the average
daily principal balance of the







-3-









 







	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement





	 	 	 
	

	 	Loans and Letters of
Credit outstanding during the month is less than the
amount of the Maximum Credit Limit, Borrower shall pay
Silicon an unused line fee in an amount equal to 0.375%
per annum on the difference between the amount of the
Maximum Credit Limit and the average daily principal
balance of the Loans and Letters of Credit outstanding
during the month, which unused line fee shall be computed
and paid monthly, in arrears, on the first day of the
following month.
	 
	 	 
	4. MATURITY DATE

   (Section 6.1):

	 	The date one (1) year from the date of this Agreement.
	 
	 	 
	5. FINANCIAL
COVENANTS

   (Section 5.1):

	 	Borrower shall comply with each of the following covenants.
Compliance shall be determined as of the end of each month, except as
otherwise specifically provided below:







	 	 	 
	US Quick Ratio:

	 	Borrower shall maintain a ratio of (a) Borrower’s
consolidated, unrestricted cash and cash equivalents held at Silicon
(and, if held at other financial institutions, are subject to account
control agreements in form acceptable to Silicon in its good faith
business judgment ), and net billed accounts receivable owing to
Borrower and its US subsidiaries, and investments with maturities of
fewer than 12 months determined according to GAAP to (b) current
liabilities of Borrower and its US subsidiaries, of not less than
1.20 to 1; provided, however, that, upon 30 days prior written notice
to Silicon, Borrower may request either (i) that this ratio be
reduced to 1:00 to 1, but in such
event, (A) the interest rate shall be increased to the Prime Rate in effect from time to time plus 1.25% per annum, and (B) the
monthly reports required in parts 1 through 5 of the Reporting requirements set forth under Section 6 below shall be semi-monthly
reports due within 10 days of each semi-monthly period end; or (ii) that this ratio be eliminated, but in such event, (A) the
interest rate shall be increased to the Prime Rate in effect from time to time plus 1.25% per annum, (B) a Collateral Monitoring Fee
of $2,000.00 per month shall be payable thereafter, in arrears, (C) the monthly reports required under parts 1 through 5 of the
Reporting requirements set forth in Section 6 below shall be weekly reports due within 5 days of each weekly period end, (D) Silicon
shall require that all proceeds of Collateral be deposited by Borrower into a lockbox account, or such other “blocked account” as
Silicon may specify, pursuant to a blocked account agreement in such form as Silicon may specify, and (E) Silicon shall be entitled
to charge Borrower a “float” charge in an amount equal to one day’s interest, at the interest rate applicable to the Loans, on all
Payments received by Silicon, and the float charge for each month shall be payable on the last day of the month.






-4-









 






	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement







	 	 	 
	Global EBTDA:

	 	Borrower shall maintain global consolidated earnings before taxes, depreciation and amortization of not
less that the amount set forth below opposite the respective dates shown, calculated monthly on a rolling
3 months basis:







	 	 	 	 	 
	Period
	 	Amount

	04/30/2004 to 06/30/2004
	 	 	($5,000,000.00	)
	07/30/2004 to 09/30/2004
	 	 	($2,500,000.00	)
	10/31/2004 and thereafter
	 	 	($1,000,000.00	)







	 	 	 
	Minimum

Net Worth:

	 	Borrower shall maintain a Net Worth of not less than $101,000,000.00.
	 
	 	 
	Definitions.

	 	For purposes of the foregoing financial covenants, the following term shall have the following meaning:
	 
	 	 
	

	 	“Current liabilities” and “liabilities” shall have the meaning ascribed thereto by GAAP.
	 
	 	 
	

	 	“Net Worth” shall mean the excess of total assets over total liabilities, determined in accordance with
GAAP.







	 	 	 
	6. REPORTING.
   (Section 5.3):

	 	








	 	 	 	 
	

	 	Borrower shall provide Silicon with the following:
	 
	 	 
	

	 	1.	Monthly transaction reports
and schedules of collections, on Silicon’s standard
form.
	 
	 	 
	

	 	2.	Monthly accounts receivable
agings, aged by invoice date, together with a
borrowing base certificate in such form as Silicon
shall specify, signed by the Chief Financial
Officer of Borrower, within 20 days after the end
of each month.
	 
	 	 
	

	 	3.	Monthly accounts payable
agings, aged by invoice date, and outstanding or
held check registers, if any, within 20 days after
the end of each month.
	 
	 	 
	

	 	4.	Monthly reconciliations of
accounts receivable agings (aged by invoice date),
transaction reports, and general ledger, within 20
days after the end of each month.



-5-







 







	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement





	 	 	 	 
	

	 	5.	Monthly perpetual inventory
reports for the Inventory valued on a first-in,
first-out basis at the lower of cost or market (in
accordance with GAAP) or such other inventory
reports as are requested by Silicon in its good
faith business judgment, all within 20 days after
the end of each month.
	 
	 	 
	

	 	6.	Monthly unaudited
consolidated and consolidating financial
statements, as soon as available, and in any event
within 30 days after the end of each month.
	 
	 	 
	

	 	7.	Monthly Compliance
Certificates, within 30 days after the end of each
month, in such form as Silicon shall reasonably
specify, signed by the Chief Financial Officer of
Borrower, certifying that as of the end of such
month Borrower was in full compliance with all of
the terms and conditions of this Agreement, and
setting forth calculations showing compliance with
the financial covenants set forth in this Agreement
and such other information as Silicon shall
reasonably request, including, without limitation,
a statement that at the end of such month there
were no held checks.
	 
	 	 
	

	 	8.	Quarterly unaudited
consolidated and consolidating financial
statements, as soon as available, and in any event
within 45 days after the end of each fiscal quarter
of Borrower, together with Borrower’s report to the
SEC on 10-Q for such fiscal quarter.
	 
	 	 
	

	 	9.	Annual operating budgets
(including income statements, balance sheets and
cash flow statements, by month) for the upcoming
fiscal year of Borrower within 30 days prior to the
end of each fiscal year of Borrower.
	 
	 	 
	

	 	10.	Annual operating budgets
(including income statements, balance sheets and
cash flow statements) for the upcoming fiscal year
of Borrower approved by Borrower’s Board of
Directors within 45 days after the start of each
fiscal year of Borrower.
	 
	 	 
	

	 	11.	Annual consolidated and
consolidating financial statements, as soon as
available, and in any event within 90 days
following the end of Borrower’s fiscal year,
certified by, and with an unqualified opinion of,
independent certified public accountants acceptable
to Silicon, together with Borrower’s report to the
SEC on 10-K for such fiscal year.
	 
	 	 
	

	 	Borrower’s 10K and 10Q reports required to be
delivered pursuant to Subsections 8 and 11 above
shall be deemed to have been delivered on the date on
which Borrower posts such report or provides a link
thereto on Borrower’s website on the Internet;
provided, that Borrower shall provide paper copies to
Bank of the Compliance Certificates and all other
reporting required by Section 5.3.







-6-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement






7. NEGATIVE COVENANTS
- EXCEPTIONS
    
(Section 5.5)




           Notwithstanding the provisions of Section 5.5, Borrower may, without
Silicon’s prior written consent, take the following actions:


           1. Borrower may merge or consolidate, or permit any of its subsidiaries to
merge or consolidate, with any Person other than with Borrower or any
subsidiary, or acquire, or permit any of its subsidiaries to acquire, all or
substantially all of the capital stock or property of a Person other than
Borrower or any subsidiary, as long as (a) no Event of Default has occurred and
is continuing or would result from such action during the term of this
Agreement, and (b) Borrower is the surviving entity, and (c) the cash component
of the cost of any one acquisition does not exceed $3,000,000.00 or, if such
cash component does exceed $3,000,000.00, the amount of Borrower’s cash and
cash equivalents held at financial institutions within the United States, which exceeds $15,000,000.00 at the
time of such acquisition, after giving effect to such acquisition.



          2. Borrower may (a) purchase capital stock from former employees,
consultants and directors pursuant to repurchase agreements or other similar
agreements; (b) purchase for value of any rights distributed in connection with
any stockholder rights plan; (c) purchase capital stock or options to acquire
such capital stock with the proceeds received from a substantially concurrent
issuance of capital stock or convertible securities; (d) purchase capital stock
in connection with the exercise of stock options or stock appreciation rights
by way of cashless exercise or in connection with the satisfaction of
withholding tax obligations; and (e) purchase fractional shares of capital
stock arising out of stock dividends, splits or combinations or business
combinations.



          3. Borrower may incur the following types of debt: (a) Borrower’s
indebtedness to Bank under this Agreement or any other Loan Document; (b)
indebtedness up to the amount shown on Annex 7-3 attached hereto which is
existing on the date hereof and owing to the creditor(s) named on such Annex
7-3; (c) indebtedness to trade creditors and with respect to surety bonds and
similar obligations; (d) Guaranties of permitted indebtedness; (e) indebtedness
consisting of interest rate, currency, or commodity swap agreements, interest
rate cap or collar agreements or arrangements designated to protect a Person
against fluctuations in interest rates, currency exchange rates, or commodity
prices; (f) indebtedness between Borrower and any of its subsidiaries, or among
any of Borrower’s subsidiaries; (g) indebtedness with respect to documentary
letters of credit; (h) Capitalized leases and purchase money indebtedness
secured by Permitted Liens; (i) indebtedness of entities acquired in any
permitted merger or acquisition transaction; and (j) refinanced permitted
indebtedness, provided that the amount of such indebtedness is not increased
except by an amount equal to a reasonable premium or other reasonable amount
paid in connection with such refinancing and by an amount equal to any
existing, but unutilized, commitment thereunder.



          4. Borrower may acquire or make the following investments:




     (a) Investments shown on Annex 7-4 attached hereto which are existing on
the date hereof;



-7-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement





(b) Marketable direct obligations issued or unconditionally
guaranteed by the United States or its agencies or any State maturing
within 1 year from its acquisition, (ii) commercial paper maturing no more
than 2 years after its creation and having the highest rating from either
Standard & Poor’s Corporation or Moody’s Investors Service, Inc., and
(iii) Bank’s certificates of deposit issued maturing no more than 2 years
after issue;



(c) Investments approved by the Borrower’s Board of Directors or
otherwise pursuant to a Board-approved investment policy;



(d) Investments in or to Borrower and any of its subsidiaries;



(e) Investments consisting of deposit and investment accounts in the
name of Borrower or any subsidiary;



(f) Investments consisting of extensions of credit in the nature of
accounts receivable, prepaid royalties or notes receivable arising from
the sale or lease of goods;



(g) Investments received in satisfaction or partial satisfaction of
obligations owed by financially troubled obligors;



(h) Investments acquired in exchange for any other Investments in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization;



(i) Investments acquired as a result of a foreclosure with respect to any
secured Investment;



(j) Investments consisting of interest rate, currency, or commodity
swap agreements, interest rate cap or collar agreements or arrangements
designated to protect a Person against fluctuations in interest rates,
currency exchange rates, or commodity prices; and



(k) Investments consisting of loans and advances to employees.



8. DEFINITIONS “Permitted Liens” shall also mean:





		 	(a) Liens existing on the date hereof which are identified on and in
favor of the respective lienholders named on Annex 8 attached hereto and
Liens arising under this Agreement or other Loan Documents;
	 
	 	 	(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for
which Borrower maintains adequate reserves on its Books, if they have no
priority over any of Bank’s security interests;
	 
		 	(c) Liens (including with respect to capital leases) (i) on property
(including accessions, additions, parts, replacements, fixtures,
improvements and attachments thereto, and the proceeds thereof) acquired
or held by Borrower or its subsidiaries incurred for financing such
property (including accessions, additions, parts, replacements, fixtures,
improvements and attachments thereto, and the proceeds thereof), or (ii)
existing on property (and accessions, additions, parts, replacements,
fixtures, improvements and attachments thereto, and the proceeds
thereof) when




-8-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement






	 	 	acquired, if the Lien is confined to such property
(including accessions, additions, parts, replacements, fixtures,
improvements and attachments thereto, and the proceeds thereof);
	 
		 	(d) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c) and (e) through
(p), but any extension, renewal or replacement Lien must be limited to the
property encumbered by the existing Lien and the principal amount of the
indebtedness it secures may not increase;
	 
		 	(e) Licenses or sublicenses granted in the ordinary course of
Borrower’s business and any interest or title of a licensor or under any
license or sublicense, if the licenses and sublicenses permit granting
Bank a security interest;
	 
		 	(f) Leases or subleases granted in the ordinary course of Borrower’s
business, including in connection with Borrower’s leased premises or
leased property;
	 
		 	(g) Liens in favor of custom and revenue authorities arising as a matter
of law to secure the payment of custom duties in connection with the
importation of goods;
	 
		 	(h) Liens on insurance proceeds securing the payment of financed insurance
premiums;
	 
		 	(i) Customary Liens granted in favor of a trustee to secure fees and other
amounts owing to such trustee under an indenture or other similar
agreement;
	 
		 	(j) Liens on assets acquired in mergers and acquisitions not prohibited by
the covenant limiting mergers and acquisitions;
	 
		 	(k) Liens consisting of pledges of cash, cash equivalents or government
securities to secure swap or foreign exchange contracts or letters of
credit;
	 
		 	(l) Liens arising from judgments, decrees or attachments in circumstances
not constituting an Event of Default;
	 
		 	(m) Carriers’, warehousemen’s, mechanics’, material men’s, repairmen’s or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in
good faith and by appropriate proceeding if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
	 
		 	(n) Pledges or deposits in the ordinary course of business in connection
with workers’ compensation, unemployment insurance and other social
security legislation;
	 
		 	(o) Deposits to secure the performance of bids, trade contracts (other
than for borrowed money), contracts for the purchase of property, leases,
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case, incurred in the ordinary
course of business and not representing an obligation for borrowed money;
and
	 
		 	(p) Easements, rights-of-way, restrictions and other similar encumbrances
affecting real property which do not materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of the applicable Person; and




-9-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement






	(q) Liens on any capital stock of Borrower’s foreign subsidiaries which
are superior to Silicon’s security interest pursuant to a written
subordination agreement in such form as Silicon shall specify.





9. BORROWER INFORMATION:




     Borrower represents and warrants that the information set forth in
the Representations and Warranties of the Borrower dated May 23, 2004, as
supplemented on June 24, 2004, previously submitted to Silicon (the
“Representations”) is true and correct as of the date hereof.



10. ADDITIONAL PROVISIONS




(1) Banking Relationship. Borrower shall at all times maintain its
primary banking relationship with Silicon. Without limiting the
generality of the foregoing, Borrower shall, at all times, maintain
on deposit with Silicon not less than 85% of its total consolidated
cash, cash equivalents, and investments held at financial
institutions within the United States, provided, that if 85% of such
total amount exceeds $10,000,000.00, Borrower shall only be required
to maintain $10,000,000.00 with Silicon. As to any deposit accounts
maintained with other financial institutions, within 30 days from
the date of this Agreement, Borrower shall cause such other
financial institutions to enter into an account control agreement in
form acceptable to Silicon in its good faith business judgment in
order to perfect Silicon’s first-priority security interest in said
deposit accounts. As to any investment accounts maintained with SVB
Securities, Borrower shall cause SVB Securities to enter into a
control agreement in form acceptable to Silicon in its good faith
business judgment in order to perfect Silicon’s first-priority
security interest in said investment accounts.



(2) Subordination of Inside Debt. All present and future
indebtedness of Borrower to its officers, directors and
shareholders (“Inside Debt”) shall, at all times, be subordinated
to the Obligations pursuant to a subordination agreement on
Silicon’s standard form. Borrower represents and warrants that
there is no Inside Debt presently outstanding, except for that
described on Annex 10–(2) attached hereto. Prior to incurring any
Inside Debt in the future, Borrower shall cause the person to whom
such Inside Debt will be owed to execute and deliver to Silicon a
subordination agreement on Silicon’s standard form.



(3) Subsidiaries. Borrower represents and warrants to Silicon that
TFS Electronic Manufacturing Services, Inc., f/k/a ETMA
Corporation, a Washington corporation, and TFS-DI, Inc., an Arizona
corporation, are the only two wholly owned subsidiaries of
Three-Five Systems, Inc. organized in the United States. Borrower
covenants and agrees that while this Agreement is in effect,
Borrower shall not transfer any assets or Collateral to TFS-DI,
Inc. or to any other subsidiaries of Borrower. Borrower has no
other subsidiaries other than subsidiaries organized under the laws
of foreign countries.



(4) Conditions Precedent. The making of the first Loan hereunder
is subject to the following conditions precedent: Silicon shall
have received: (a) an opinion of Borrower’s



-10-









 






	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement







counsel in form
reasonably satisfactory to Silicon; (b) a UCC search with respect
to Three-Five Systems, Inc. in the Office of the Delaware Secretary
of State and with respect to TFS Electronic Manufacturing Services,
Inc. in the Office of Washington State Department of Licensing,
showing the respective UCC-1 Financing Statement in favor of
Silicon to be of record and showing no other filings (other than
those with respect to Permitted Liens); (c) a Pledge Agreement
from Three-Five Systems, Inc. pledging and assigning not less than
100% of the stock of TFS-DI, Inc. and 65% of the stock of its
foreign subsidiaries on Silicon’s specified form, together with the
certificates of stock representing such securities and executed but
undated stock powers or assignments relating to each such
certificate of stock; (d) an Intellectual Property Security
Agreement on Silicon’s standard form executed by each Borrower,
together with related Assignments in blank of copyrights, patents
or trademarks, as the case may be; (e) certificates of resolutions
authorizing the execution and delivery of this Agreement and the
Intellectual Property Security Agreement by each Borrower and the
Pledge Agreement by Three-Five Systems, Inc.; (f) an initial
borrowing base certificate indicating the amount of credit
available under the credit limit specified above in Section 1 of
this Schedule; and (g) the Loan Fee specified above in Section 3 of
this Schedule.




(5) Conditions Subsequent. Within 30 days after the date
hereof, Borrower shall deliver (a) a Pledge Agreement from TFS
International, Ltd. pledging and assigning not less than 65% of the
stock of its foreign subsidiaries, being Three-Five Systems
(Beijing) Co., Ltd. and TFS Electronic Manufacturing Services Sdn.
Bhd., on Silicon’s specified form, together with the certificates of
stock representing such securities or such other evidence of its
equity ownership interest as is acceptable to Silicon and executed
but undated stock powers or assignments relating to each such
certificate of stock or other evidence as is acceptable to Silicon;
(b) a certificate of resolutions authorizing the execution and
delivery of the Pledge Agreement by TFS International, Ltd.; (c) if
required, an approval of the Bermuda Monetary Authority permitting
such pledge; (d) a Consent to Removal of Personal Property (or other
landlord waiver) in form acceptable to Silicon relating to the real
property commonly known as 6640 185th Avenue N.E. Redmond, WA
98052; and (e) the stock certificates and stock powers or
assignments specified above in Section 10(4)(c) of this Schedule but
not delivered at closing. In the event Borrower has been unable to
deliver such documents within 30 days from the date hereof, it shall
not be an Event of Default under this Agreement at such time, as
long as Borrower is using its best efforts to obtain such documents
and is diligently pursuing all reasonable steps to so obtain such
documents. In the event TFS International II, Ltd. ever owns more
than its current ownership interest in TFS Electronic Manufacturing
Services Sdn. Bhd., Borrower shall deliver (a) a Pledge Agreement
from TFS International II, Ltd. pledging and assigning not less than
65% of the stock of its foreign subsidiaries, on Silicon’s specified
form, together with the certificates of stock representing such
securities or such other evidence of its equity ownership interest
as is acceptable to Silicon and executed but undated stock powers or
assignments relating to each such certificate of stock or other
evidence as is acceptable to Silicon, (b) a certificate of
resolutions authorizing the execution and delivery of the Pledge
Agreement by TFS International II, Ltd.; and (c) if required, an
approval of the Bermuda Monetary Authority permitting such pledge.



-11-









 






	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement







(6) Intellectual Property. Borrower shall provide written notice to
Bank of any new application filed by Borrower in the United States
Patent and Trademark Office for a patent or to register a trademark
or service mark within 30 days of any such filing. Borrower shall
not register any Intellectual Property with the United States
Copyright Office unless it: (i) has given at least fifteen (15)
days’ prior notice to Bank of
its intent to register such Intellectual Property and has provided
Bank with a copy of the application it intends to file with the
United States Copyright Office (excluding exhibits thereto); (ii)
executes a security agreement or such other documents as Bank may
reasonably request in order to maintain the perfection and priority
of Bank’s security interest in the Intellectual Property proposed
to be registered with the United States Copyright Office; and (iii)
records such security documents with the United States Copyright
Office contemporaneously with filing the application(s) with the
United States Copyright Office. Borrower shall promptly provide to
Bank a copy of the application(s) filed with the United States
Copyright Office, together with evidence of the recording of the
security documents necessary for Bank to maintain the perfection and
priority of its security interest in such Intellectual Property.



-12-









 





	 	 	 
	Silicon Valley Bank

	 	Schedule to Loan and Security Agreement








	 	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	Silicon:
	 
	 	 	 	 	 	 	 	 
	     THREE-FIVE SYSTEMS, INC.	 	SILICON VALLEY BANK
	 
	 	 	 	 	 	 	 	 
	By

	 	 	 	 	 	By	 	 
	 	
 
	 	 	
 
	 	President or Vice President
	 	Title	 	 
	 
	 	 	 	 	 	 	

	By
	 	 	 	 	 	 	 	 
	 	
 	 	 	 	 
	

	Secretary or Ass’t Secretary	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Borrower:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	TFS ELECTRONIC MANUFACTURING SERVICES,

INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By
	 	 	 	 	 	 	 	 
	

	
 	 	 	 	 
	 	President or Vice
President	 	 	 	 
	By
	 	 	 	 	 	 	 	 
	 	
 	 	 	 	 
		Secretary or
Ass’t Secretary	 	 	 	 





Form : -3(3/7/02)

Version - 4

-13-









 








ANNEX 7-3



Amount of Existing Debt and Names of Creditors





	1.	 	Data International, Ltd.      Amount Outstanding is $1,550,000
	 
	2.	 	Various equipment leases located at the Company’s facilities in
Washington. Will provided the specific details to these leases within the
next 7 days.













 











ANNEX 7-4



Description of Existing Investments




None













 








ANNEX 8




Description of Existing Liens and Related Lienholders



Existing Liens and Related Lienholders include equipment leases and property
leases located at the Company’s facilities in Washington. Will provided the
specific details to these leases within the next 7 days.













 








ANNEX 10-(2)




Description of Existing Inside Debt




(Debt of Borrower to Insiders)




None